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The opinion of the court was delivered by
Lockett, J.:
The Johnson County Board of County Commissioners, the county clerk, the county treasurer, and the county appraiser (County) appeal from a judgment of the Johnson County District Court affirming a decision of the Board of Tax Appeals (BOTA) reducing the valuation of certain real estate owned by Mary R. Greenhaw and leased by Kansas Land Development Company.
Appellee Mary R. Greenhaw is the title owner of a 55.9-acre tract of land located at the northwest corner of College Boulevard and Quivira Road in Overland Park, Kansas. The land was undeveloped and zoned for agricultural use. As a result of a 1969 court-ordered, county-wide reappraisal, the land was valued at $1,275 per acre.
In 1973, Greenhaw leased the land to appellee Kansas Land Development Company (KLDC) for 82 years. The lessee agreed to pay rent at $44,000 per year until 1979, and at that time the rent was to increase to $64,000 per year. In addition, after the property was fully developed, the lessor was. to receive a percentage of the rent paid by the sublessees. The lessee had the right to use the land for any purpose, the right to mortgage the land to its full value, and the option to purchase the real estate. The lessor retained only the right of ownership.
In 1974, Kansas Land Development filed plans with the Overland Park planning commission for a planned unit development consisting largely of single and multi-family dwellings to be known as Quivira Falls. The development was to cover approximately 207 acres, including the 55.9 acres leased from Greenhaw.
In 1979, the county appraiser discovered the existence of the long-term lease and determined that, because of the lease, the use of the property had changed from agricultural to commercial. He therefore changed the valuation of the property from $1,275 per acre to $17,611 per acre. Greenhaw and Kansas Land Development paid the higher tax assessments for the years 1980, 1981, and 1982 under protest. Application for refund of the taxes paid under protest was filed pursuant to K.S.A. 1986 Supp. 79-2005.
BOTA consolidated the appeals. Following a hearing, BOTA held that: (1) for all practical and legal purposes, Greenhaw’s lease of the property was similar to a sale of the property and, therefore, should be treated as a sale for purposes of real property taxation; and (2) the use of the land had not changed from agricultural to commercial but was agricultural, vacant land awaiting future development. It said that unless Greenhaw’s long-term lease was treated like a sale when applying the value appraisal procedures and methods employed by the Johnson County Appraiser for similar property, the valuation placed on the appellees’ property was not uniform and equal as required by Article 11, Section 1 of the Kansas Constitution. BOTA ordered the county to recompute the 1980-1983 tax liability and to refund the excess taxes paid, plus interest.
The County then appealed to the district court. The district court found that under these facts BOTA had not acted arbitrarily or capriciously when it concluded that for purposes of ad valorem taxation, in order to meet the uniform and equal requirement of our state constitution, the lease must be treated as a sale. It also held that BOTA had not acted arbitrarily or capriciously when it determined that no change in the use of Greenhaw’s land had occurred and it ordered the County to recompute the 1980-1982 taxes. The County appeals those findings. In addition, the district court found that BOTA erred by including the 1983 tax year in its order and by requiring the County to pay interest on the refund. Appellees Greenhaw and Kansas Land Development cross-appeal.
Jurisdiction
The County asserts that neither BOTA nor the district court had jurisdiction under K.S.A. 1986 Supp. 79-2005 to find the valuation to be in violation of the uniform and equal clause of the Kansas Constitution. In order to grant relief under the statute, it argues that both were required to find the county appraiser’s valuation was illegal or void.
The appellees brought this tax protest pursuant to K.S.A. 1986 Supp. 79-2005(b), which provides:
“If the grounds of such protest shall be that the valuation or assessment of the property upon which the taxes so protested are levied is illegal or void, such statement shall further state the exact amount of valuation or assessment which the taxpayer admits to be valid and the exact portion of such taxes which is being protested.”
Both BOTA and the district court found the valuation to be in violation of the uniform and equal clause of the Kansas Constitution. We agree that a valuation contrary to the principles of the Constitution is an illegal or void valuation. If this long-term lease should be treated the same as a sale, then the valuation assessed by the County was in violation of the uniform and equal clause of the Constitution because the County treated other similar undeveloped land in a different manner. Under such circumstances, the county appraiser’s action would be unconstitutional, and BOTA and the district court, therefore, had jurisdiction to hear the protest under 79-2005(b).
Lease Like a Sale
The County contends that BOTA and the district court erred in finding that the long-term lease to Kansas Land Development should be treated as a sale for the purpose of taxation.
Here, the question raised on appeal is one of law and not one of fact. The interpretation of a statute is a question of law and it is the function of a court to interpret a statute to give it the effect intended by the legislature. In reviewing questions of law, both the trial court and the appellate courts may substitute their judgment for that of the agency only where the statute is clear and the administrative ruling erroneous. Ordinarily, the interpretation placed on a statute by the administrative agency charged with its enforcement is entitled to judicial deference and may be of controlling significance. Wallis v. Secretary of Kans. Dept. of Human Resources, 236 Kan. 97, 101, 689 P.2d 787 (1984).
The County correctly states that short-term leases with options to buy are treated as leases, rather than sales. In Bras v. Sheffield, 49 Kan. 702, 31 Pac. 306 (1892), this court held that where the owner of land leases it for a period of five years at a stipulated annual rental and the contract of lease contains a stipulation that the renters shall have the right, at the expiration of the lease, to purchase the premises, if they shall so elect, at a fixed price, there is no completed sale. The court said that renters do not acquire any estate in the land beyond the leasehold interest until they have elected to accept the offer and have paid or tendered the purchase price stipulated in the contract.
There are no Kansas cases, however, discussing the status of long-term or perpetual leases. Other jurisdictions have found that such leases should be treated as a sale. “Where there is a lease in perpetuity, such as a lease for 99 years renewable forever, or a grant of land with a reservation of a ground rent, the tenant or grantee may be considered the owner for purposes of taxation, and the land may be taxed to him.” 71 Am. Jur. 2d, State and Local Taxation § 209. See J. W. Perry Co. v. Norfolk, 220 U.S. 472, 55 L. Ed. 548, 31 S. Ct. 465 (1911); DeKalb County & c. Assessors v. Harris & Co., 248 Ga. 277, 282 S.E.2d 880 (1981); Penick v. Atkinson, 139 Ga. 649, 77 S.E. 1055 (1913); Gilberton Fuels, Inc., v. P. & R. C. & I. Co., 342 Pa. 192, 20 A.2d 217 (1941); Annot., 59 A.L.R. 701; cf. Indian Head Nat’l Bank v. City of Portsmouth, 117 N.H. 954, 379 A.2d 1270 (1977).
A leasehold estate, except an oil and gas lease, is. real estate under Kansas law. A leasehold estate is not subject to real estate taxation. Instead, a unitary assessment method is used in which one value is assigned to a lot or tract of real estate and one tax is assessed and levied thereon. The practical reasons for not assessing and levying real property taxes against leases are discussed in Zinn, The Real Estate Lease in Kansas: Some Problems of Characterization, 17 Kan. L. Rev. 707, 725 (1969):
“The paramount reason appears to be that taxation of divided interests in real property is not within the scheme of the Kansas taxation statutes. Thus, in compiling the real estate assessment rolls, the county clerk is required only to consult the transfer record in his office, the records and plats in the office of the register of deeds, and reports from United States land offices, in obtaining information pertaining to ownership of real property. Moreover, the county assessor is to compute taxes to be levied only on tracts or lots of real property in the names of the owners thereof. Neither the county clerk nor the county assessor is required to search out divided ownerships created by leases, many of which are unrecorded. To impose this search on county clerks and assessors would perhaps prohibitively increase the administrative burdens placed on those county officials, and would eliminate the certainty now present in the unitary assessment method. Furthermore, because the assessor is required to value both land and improvements thereon, and the values are to consider the earning capacity as indicated by lease price and reasonable rental value, it would appear that no loss in tax funds is occasioned by not separately assessing and levying a tax upon the leasehold interest of the lessee and the reversionary interest of the lessor.”
As noted, other courts have found that perpetual leases are similar to a sale and have taxed the property as a sale. We are not required to determine that issue in this case. BOTA did not find that taxes should be assessed against the lease, but under these facts the lease should be treated as similar to a sale. It said that, to observe uniformity and equality in the valuation of property for ad valorem tax purposes in Johnson County, the practices and procedures of the county appraiser require this long-term lease to be treated like a sale.
The lease in this case is for 82 years. The lessee has absolute, unfettered use of the property. The lessor is required to assist the applicant in placing a mortgage or other encumbrance on the property and to join the lessee in any tax protest or other proceeding concerning title, and the lessee must pay all taxes and special assessments and insurance on the property. Title to all buildings and improvements on the property is in Kansas Land Development, which may sublet the premises to anyone.
The main right the lessor retains is a small reversionary interest in the property. A land appraiser, testifying as an expert witness, presented evidence at trial concerning the value of the lessor’s and lessee’s interests. He testified that the lessee’s interest in the property constituted a large portion of the total value of the property and the lessor’s reversionary interest constituted only a miniscule portion of the value of the property.
The right to equal treatment in matters of taxation is a protected right under Article 11, Section 1 of the Constitution of the State of Kansas. BOTA would be correct in finding that Green-haw’s long-term lease should be treated as a sale if it is necessary to preserve equal treatment and the rule of uniformity in Johnson County. To determine whether BOTA was correct, we must answer the other questions presented in the appeal.
Change in Use
All non-exempt property in this state is subject to taxation as prescribed in Chapter 79 of the Kansas Statutes. Each parcel of real property must be appraised at its fair market value. K.S.A. 79-501. Article 11, Section 1 of our state constitution requires a uniform and equal rate of assessment and taxation. To comply with these requirements, all real property in Johnson County was appraised in 1969.
At the BOTA hearing, the county appraiser testified that, in order to maintain county-wide equalization of undeveloped real property, he ignored the sales of undeveloped land. In fairness to the property owners and purchasers, he left undeveloped properties on the tax rolls at the lower 1969 appraised values. The sale of undeveloped land for more than its 1969 assessed value did not trigger a change in use or require the land to be reevaluated for taxation. Neither the sale of land to a developer, rezoning the land from agricultural to commercial, platting the property, nor other paper transactions or non-physical changes in the undeveloped property were considered as a change in use. The county appraiser testified that the act that triggered a change in use was the actual physical development of the land. After physical development commenced, the property would be reassessed at its higher value.
To show that Greenhaw’s land was not taxed uniformly with other similar undeveloped neighboring tracts, the appellees introduced evidence of 28 comparable undeveloped neighboring tracts still appraised at their 1969 valuation. The evidence showed that the valuation on Greenhaw’s property in 1980-1981 was between 11 and 16 times higher than the valuation of the 28 tracts. This disparity in value was due to the county appraiser’s determination that Greenhaw’s property had changed in use from agricultural to commercial land due to the income derived from the long-term lease.
BOTA found that, though Greenhaw’s land had been leased for a long term in 1973, the use of the property had not changed but was still agricultural, vacant land awaiting future development in 1983. It concluded that, in order to achieve uniform and equal treatment with other similar undeveloped land, the valuation of Greenhaw’s property had to be restored to the valuation established in the 1969 base year. The district court found that the land was undeveloped when BOTA issued its decision, and that the lessee under its long-term lease was not developing the land, but merely holding it pending development.
The County contends that BOTA and the district court erred in finding that the use of the property had not changed. The County argues that Greenhaw had changed the use from agricultural to commercial when the land was leased. The County bases its argument on In re Board of Johnson County Comm’rs, 225 Kan. 517, 592 P.2d 875 (1979). There, certain real and personal property owned by a for-profit corporation was leased to a nonprofit corporation and used exclusively by the nonprofit corporation. The lessor claimed the property was exempt from ad valorem taxation under what is now K.S.A. 1986 Supp. 79-201b First because of its exclusive use by a nonprofit corporation. We found there was a simultaneous use of the property. The owner leased its property and received a profit from the investment even though it was used by a qualifying tax-exempt entity. The lessor was therefore subject to the ad valorem tax. K.S.A. 1986 Supp. 79-201 deals with exemptions from taxation and is not applicable.
The County argues that the 28 tracts are not similar to the land in question because those tracts are not subject to long-term leases. It contends that BOTA ignored the earning capacity as indicated by the lease price or by capitalization of net income and the rental or reasonable value of net income, that both BOTA and the district court failed to recognize that subsections (f) and (g) of K.S.A. 79-503a provide that productivity and earning capacity also determine the valuation of land for taxation, and that the valuation of property is determined not only by the market price but by the income derived from a long-term lease.
K.S.A. 79-503a sets out the factors to be considered for appraising land at its fair market value. “Fair market value” means the amount of money that a well-informed buyer is justified in paying and a well-informed seller is justified in accepting for property in an open and competitive market. Sales are not the sole criteria for determining fair market value but are used in connection with cost, income, and other factors, i.e., the classification of lands and improvements, size, the effect of location on value, depreciation, cost of reproducing improvements, productivity, earning capacity, rental value, sale value, and comparison with values of other property of known or recognized value.
The appellees argue, however, that the county appraiser ignores sales as a basis for determining fair market value when he appraises undeveloped property. They contend that a sale of the property does not trigger reassessment by the county appraiser and that physical development is the factor which causes the appraiser to reassess the property, except where he discovers a long-term lease.
When determining the validity of an assessment of real property for uniformity and equality in the distribution of the burdens of taxation, the essential question is whether the standards prescribed in K.S.A 79-503a have been considered and applied by the taxing officials. The assessment of real property which takes into consideration only some of the pertinent statutory factors of K.S.A. 79-503a cannot be upheld where evidence indicates there has not been a uniform and equal rate of assessment and taxation in the county.
The County argues that all land subject to a long-term lease is assessed at a uniform and equal rate, and where land is subject to a long-term lease an actual physical change is not a prerequisite for a change in use. It contends that four other tracts of land in the county subject to long-term leases were reassessed prior to their physical development.
Unfortunately, the record reveals that two of the leased lands were physically developed before the county appraiser’s office discovered that the tracts of land had been leased. A third lease was discovered by accident and it was unknown how the fourth leased property was discovered. The county appraiser admitted that there is no clear policy as to when a lease of property constitutes a change of use. He stated that a lease between two farmers does not constitute a change in use, and that only nonagricultural leases of undeveloped land with terms of at least five and more probably not less than ten years are considered for a change in valuation.
Both BOTA and the district court determined that the haphazard fashion that was used by the appraiser to discover leased lands and to determine which of the leased lands should be subject to an increased valuation was improper. The procedure resulted in a nonuniform and unequal valuation of similar property.
Uniformity in taxation implies equality in the burden of taxation, and this equality cannot exist without uniformity in the basis of valuation. Uniformity in taxation does not permit a systematic, arbitrary, or intentional higher valuation than that placed on other similar property within the same taxing district. Under the facts of this case, the assessment of Greenhaw’s land was so arbitrary and grossly discriminatory that it destroyed uniformity and equality in the manner of fixing the assessed valuation and was illegal. BOTA and the district court were correct in determining that the long-term lease of Greenhaw’s land should be treated like a sale and the valuation for assessment should be the same as that for comparable undeveloped neighboring tracts.
ISSUES ON CROSS-APPEAL
Interest on the Refund
The appellees contend that the district court erred as a matter or law in overruling that portion of the BOTA order which directed appellants to pay interest on the money refunded. The BOTA order specifically directed the County to pay interest on the amount of the tax ordered refunded, commencing 60 days after the order was certified, if not refunded by that time. The appellees argue that BOTA has the implied power under K.S.A. 1986 Supp. 79-2005 to award interest on taxes wrongfully collected. We disagree.
The fundamental rule of statutory construction, to which all others are subordinate, is that the purpose and intent of the legislature governs when that intent can be ascertained from the statute. Szoboszlay v. Glessner, 233 Kan. 475, 477, 664 P.2d 1327 (1983). In order to ascertain 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. Szoboszlay v. Glessner, 233 Kan. at 478.
A survey of Chapter 79, Taxation, shows that the legislature has provided for payment of interest on refunded taxes under certain circumstances. For example, K.S.A. 79-1579 provides that upon the allowance of an abatement or refund of any part of an inheritance tax, interest at the rate of 12 percent per annum shall be paid from a special fund set up for such payment. K.S.A. 1986 Supp. 79-2005(1) provides that the taxing district may issue no-fund warrants where it does not have the money in the current budget year and shall then make a tax levy sufficient to pay such warrants and the interest thereon.
Other sections of Chapter 79, however, make no provision for payment of interest upon refunds. For example, in K.S.A. 1986 Supp. 79-1701a, the legislature has provided that taxpayers may receive a refund for the overpayment of taxes where the overpayment was due to a clerical error. The statute does not provide for payment of interest on the refund. K.S.A. 1986 Supp. 79-1702 also provides for a refund where taxes were improperly collected, but does not provide for interest. K.S.A. 79-1564(d)(4) provides for a refund of taxes which were paid on assets not within the control of the administrator, executor, or deemed executor of an estate when he cannot collect that from the distributee, but does not provide for an award of interest.
The existence of specific statutes providing for the payment of interest contradicts the taxpayers’ argument that they are entitled to interest on a refund of taxes under 79-2005. Under the rule of expressio unius est exclusio alterius (the expression of one excludes the other), the choice of the legislature to not provide for the payment of interest on certain refunds while expressly providing for such payment on other refunds indicates an intention to exclude from certain refunds the obligation of interest. Since 79-2005 does not specifically provide for the payment of interest except on no-fund warrants, the district court was correct in denying prejudgment interest.
The 1983 Tax Award
Greenhaw and Kansas Land Development contend that the district court erred in striking all portions of the BOTA order which referred to tax year 1983.
The appellees had paid their taxes under protest for 1980, 1981, and 1982, and filed separate applications for refund for each. The BOTA order was entered on October 5,1983, just prior to the issuance of the 1983 tax statements on November 1, 1983. The BOTA order stated that taxes should be recomputed for “the 1980, 1981, 1982 and 1983 (if applicable)” tax years. The district court determined that under 79-2005, BOTA had no jurisdiction to make an order that applied to any year other than one during which the taxes were paid under protest and found that “BOTA should delete any reference to the tax year 1983 from its order.”
To protest payment of taxes, the taxpayer must file a written statement before or at the time of paying taxes stating the grounds on which the taxes are protested. K.S.A. 1986 Supp. 79-2005(a). Within 30 days after filing the written statement of protest, the taxpayer must file an application for refund with the State Board of Tax Appeals. K.S.A. 1986 Supp. 79-2005(e). When a determination is made as to the merits of an application for refund, the Board enters its order. K.S.A. 1986 Supp. 79-2005(i). Each of the other subsections of 79-2005 also refers to a refund. For example, K.S.A. 1986 Supp. 79-2005(j) states that if a tax payer fails to file an application for refund, the protest becomes null and void.
In Shriver v. Board of County Commissioners, 189 Kan. 548, 370 P.2d 124 (1962), this court considered whether the district court had jurisdiction in 1938 to enjoin the collection of taxes against trust property for years subsequent to the year 1937. The court said:
“The petition in that action made no reference to any taxes other than those for the year 1937, nor was any claim made for exemption for subsequent years in either the stipulation of facts or in the written protest. Thus, the only issue before the district court to adjudicate was the question of exemption from taxation for the year 1937. Jurisdiction may be defined as the power of a court to adjudicate concerning the subject matter in a particular case. [Citation omitted]. To acquire jurisdiction three essentials are necessary: First, the court must have general jurisdiction of the class of cases to which the one to be adjudged belongs; second, proper service of summons must be had upon the defendant or he voluntarily enters his appearance in the case, and third, the point decided must be, in substance and effect, within the issues framed by the pleadings and, as here, in the stipulation of facts and the written protest. [Citation omitted.] . . . But the third element, the point to be decided within the issues framed, presented only the question of exemption from taxation for the year 1937, hence a judgment purporting to enjoin the defendants from the collection of taxes for all years subsequent to 1937 was entirely outside the issue of the case.” 189 Kan. at 553.
The court went on to say:
“When the plaintiffs invoked G.S. 1949, 79-2005 to pay the first half of the 1959 taxes under protest, they were bound by all its provisions. Had they wished to seek a judgment of the district court to recover the first half of the 1959 taxes, they should have filed an original action for that purpose within 30 days after payment under protest, or, as they did, make application to the board of tax appeals to determine the validity of their tax protest.” 189 Kan. at 555.
See McManaman v. Board of County Commissioners, 205 Kan. 118, 468 P.2d 243 (1970), and Cities Service Oil Co. v. Kronewitter, 199 Kan. 228, 428 P.2d 804 (1967).
The appellees cite Wirt v. Esrey, 233 Kan. 300, 662 P.2d 1238 (1983), in support of their argument that BOTA has authority to issue an order affecting future taxes. The main issue in Wirt was whether BOTA had jurisdiction to consider the taxpayer’s motion for refund of taxes paid under protest. The county contended that BOTA did not have jurisdiction to refund the taxes because the claim for refund was not first presented to the county board of equalization for determination. This court concluded that BOTA did have jurisdiction to order a refund of taxes even though the claim for refund was not formally presented to the county board of equalization. Wirt, however, involved an equalization appeal brought under K.S.A. 79-1609, and is distinguishable from the present case.
K.S.A. 1986 Supp. 79-2005 requires that any person who wishes to protest taxes must first (1) pay the taxes; (2) file a written statement stating the grounds of protest; (3) and within 30 days thereafter commence an action in court or file an application with BOTA. The clear intent of 79-2005 is to require that taxpayers actually pay the taxes before allowing protest proceedings to be initiated. The assessment in question is made on an annual basis and is not on a continuing basis. Neither BOTA nor the district court have jurisdiction to act beyond the 1982 taxes or authority to order refund of such taxes found excessive. There is no support for the appellees’ argument that BOTA has jurisdiction to order a reduction of taxes in future years. The district court did not err in ordering that that part of the BOTA order be stricken.
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Respondent was engaged in the general practice of law with her husband, Paul Hess, under the firm name of Oliver, Hess & Hess. Paul R. Hess was disbarred by this court on the 6th day of February, 1986 (In re Hess, 238 Kan. 636, 713 P.2d 478 [1986]). On August 8, 1983, Ora Gillespie, Bridgett Buchanan, and William E. Gillespie, Jr., went to the Hess law office and met with Paul Hess and respondent. The clients received legal advice on various matters including the preparation of a will for Ora Gillespie which was typed and notarized by respondent. Subsequently, other services were rendered by the Hess law firm, principally by Paul Hess. Financial advice was given to the clients and in 1984 Paul Hess, who was having severe financial problems, suggested to Bridgett Buchanan and her mother that they could earn a high rate of interest by loaning money to the Hesses. Respondent was present during the initial discussion wherein the clients were advised that such a loan would be secured by first mortgages, including that on a 120-acre farm, and oil and gas production. During this period of time, numerous judgments were entered against Paul Hess and respondent. On or about July 9, 1984, Ora Gillespie agreed to loan them $100,000, which was delivered to Paul Hess on July 10, 1984. Thereafter, Bridgett Buchanan frequently inquired of Paul Hess and respondent about a promissory note and security agreement or mortgages to be received as security for the loan. Respondent advised Mrs. Buchanan that the documents would be signed by herself and her mother, Maxine W. Oliver.
Unable to obtain any satisfaction, Bridgett Buchanan, Ora Gillespie, and William E. Gillespie, Jr., filed suit against respondent, her husband, and her mother, alleging the “defendants made false representations of material fact with the intent of defrauding the plaintiffs, with knowledge such representations were false and fraudulent.” That case was eventually settled upon payment by Maxine W. Oliver of $132,500.00.
The panel of the Board concluded:
“It is the unanimous finding of the hearing panel that there is clear and convincing evidence that respondent engaged in dishonesty, deceit and misrepresentation in violation of DR 1-102(A)(4); that respondent engaged in conduct prejudicial to the administration of justice in violation of DR 1-102(A)(5); that respondent’s conduct adversely reflects on her fitness to practice law in violation of DR 1-102(A)(6).”
The panel then recognized the personal problems which had plagued the respondent and recommended that she be disciplined by public censure.
During this troubled time, respondent and her husband were experiencing severe marital problems as well as financial problems. A corporate business of Paul Hess’s was in deep financial difficulty, as were Paul Hess and respondent. Paul Hess and respondent were engaged in a bitter divorce and custody battle culminating in flight by Paul Hess from the country with his three young sons, all in violation of existing court orders. Respondent tracked her husband to the Middle East and eventually recovered custody of her sons through the courts of Egypt. The Court recognizes that respondent has suffered severe emotional and physical distress as a result of her stormy marriage to Paul Hess and that those problems adversely interfered with her practice of law. However, the intentional deceit and misrepresentation perpetrated upon respondent’s clients cannot be minimized regardless of respondent’s personal problems. The panel’s determination that respondent was guilty of dishonesty, deceit, and misrepresentation in dealing with clients of her law firm are some of the most serious violations of the Code of Professional Responsibility and cannot be justified under any circumstances.
Effective this 27th day of March, 1987.
While a minority of the members of this court would accept the recommendations of the panel that respondent be disciplined by public censure, a majority of the court is of the opinion that respondent should be indefinitely suspended from the practice of law in Kansas.
IT IS THEREFORE ORDERED that Anne Oliver Hess be and she is hereby indefinitely suspended from the practice of law in Kansas.
IT IS FURTHER ORDERED that Anne Oliver Hess shall forthwith comply with the provisions of Supreme Court Rule 218 (235 Kan. cxxxii) and that the costs of this action be assessed to the respondent.
IT IS FURTHER ORDERED that this order shall be published in the official Kansas Reports.
Miller, J., not participating.
Herd, J., dissenting. | [
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The opinion of the court was delivered by
Lockett, J.:
Claimant Larry J. Baxter appeals the denial of workers’ compensation and thé finding that his second injury did not aggravate the preexisting condition for which he had received a settlement for total permanent partial disability. The Kansas Court of Appeals, pursuant to Rule 7.042 (b) and (d) (235 Kan. lxxiv), affirmed the trial court. We reverse the decision on this issue.
Claimant Baxter filed a claim for compensation for a second back injury. The second injury occurred January 6, 1983, when Baxter slipped and fell while performing carpentry duties for his employer, L. T. Walls Construction Company (Walls).
Approximately four years earlier, in November 1978, Baxter had sustained a serious back injury while working for another employer. As a result of that injury, Baxter was hospitalized with a crushed disc and broken vertebra and had multiple surgeries. In June 1980, Baxter’s physician, Dr. Ernest Szabados, gave claimant a rating of 100 percent permanent partial disability. In August 1981, Dr. Szabados reexamined claimant and stated that Baxter remained 100 percent permanently partially disabled. Dr. Szabados further stated that, in his opinion, this disability rating was permanent. Baxter was also examined by his employer’s insurance carrier physician, Dr. Edwin MacGee, in October 1981. Dr. MacGee found that Baxter was chronically disabled due to pain but would be able to perform any job within the limits of his discomfort.
In 1981, Baxter’s disability claim for the 1978 injury was settled and he received a lump sum payment of $22,650. The settlement was based on Dr. Szabados’ rating of 100 percent permanent partial disability.
In February 1982, approximately four years after his original accident, Baxter was able to begin remodeling work on his own home. From September to November 1982, Baxter helped a former employer by performing carpentry work on a house building project. The former employer testified that Baxter performed his carpentry work satisfactorily. In November 1982, Baxter began working as a rough-in carpenter for Walls, the respondent. Walls testified that prior to Baxter’s second accident, Baxter was able to perform his work requirements satisfactorily.
After his 1983 injury, Baxter was examined again by both Dr. Szabados and Dr. MacGee. Dr. Szabados rated claimant’s disability at 100 percent temporary total disability in a report dated March 18, 1983. However, in a later report on June 10, 1983, Dr. Szabados stated that claimant was “at least 50% disabled in terms of the body as a whole prior to his recent industrial accident, 1/6/83.” Dr. MacGee found that there was no substantial evidence to indicate that Baxter’s condition was significantly changed by the 1983 injury, but there was an increased disability of five to ten percent.
On May 22, 1984, a hearing was held regarding the 1983 injury. On January 7, 1985, the administrative law judge found that an injury had occurred which arose out of the course of plaintiff s employment. However, he denied claimant’s claim for disability. The administrative law judge concluded that claimant was already 100 percent disabled; therefore, he did not receive any additional disability to the body as a whole from his accident on January 6, 1983.
On appeal, the Director of Workers’ Compensation reversed the administrative law judge. The Director found that the 1983 injury had in fact aggravated Baxter’s preexisting back injury and increased his disability. He stated that the test for permanent partial disability is not related to functional anatomical impairment, “but whether claimant is unable, because of the injury, to perform portions of the job duties that he was performing at the time of the injury.” He found that Baxter’s condition had improved following the 1978 injury as evidenced by the fact that by 1982 Baxter was able to perform carpentry work to the satisfaction of his employer. The Director further found that Baxter again suffers from 100 percent permanent partial general bodily disability from performing work of the type and character that he was performing at the time of his injury. Following the requirements of K.S.A. 44-510a, the Director reduced Baxter’s award by giving the employer credit for the 100 percent permanent partial disability benefits that Baxter had previously received.
This award was appealed and the district court reversed the Director. The district court found, as had the administrative law judge, that Raxter had 100 percent permanent partial disability as a whole when he obtained employment with Walls, and, therefore, the worker could not have aggravated a preexisting disability in the second accident. The Kansas Court of Appeals affirmed the district court. We granted review.
In workers’ compensation cases, the scope of review by an appellate court is to determine whether the district court’s judgment is supported by substantial evidence. The evidence is viewed in the light most favorable to the party prevailing below and if there is substantial evidence to support the district court’s factual findings, the appellate court has no power to weigh evidence or reverse the final order of the district court. Dieter v. Lawrence Paper Co., 237 Kan. 139, 145, 697 P.2d 1300 (1985). The term “substantial evidence” when applied to workers’ compensation cases means evidence that possesses something of substance and relevant consequence or evidence that furnishes a substantial basis of fact from which the issues presented can be reasonably resolved. Crabtree v. Beech Aircraft Corp., 229 Kan. 440, 442, 625 P.2d 453 (1981).
The test for determining permanent partial general disability is the extent to which the injured worker’s ability has been impaired to engage in work of the same type and character he or she was performing at the time of the injury. In considering a permanent partial general disability under K.S.A. 44-510e, the work disability is measured by the reduction, expressed as a percentage, in the worker’s ability to engage in work of the same type and character that he or she was performing at the time of the injury. Where a claimant in a workers’ compensation case is found to suffer a permanent partial general disability, the pivotal question is, what portion of claimant’s job requirements is he or she unable to perform because of the injury? Ploutz v. Ell-Kan Co., 234 Kan. 953, Syl. ¶¶ 3, 4, 5, 676 P.2d 753 (1984).
When a worker with a preexisting condition is accepted for employment and a subsequent industrial injury aggravates, accelerates, or intensifies his condition, resulting in disability, he is entitled to be fully compensated for the resultant disability. Harris v. Cessna Aircraft Co., 9 Kan. App. 2d 334, 336, 678 P.2d 178 (1984). K.S.A. 44-510a provides that the compensation for the disability resulting from the later injury is to be reduced by the percentage of contribution that the prior disability contributes to the overall disability of the later injury. A reduction in the subsequent award is required if compensation was actually paid or is collectible for a prior disability. Such reduction ceases on the date the compensation for the prior disability terminates or, if settled by a lump sum award, would have terminated if paid on a weekly basis.
Baxter argues that, since he was able to return to carpentry work in 1982 and 1983, he could not have been 100 per cent permanently partially disabled at that time.
The district court found that claimant was 100 percent permanently partially disabled when he began working for Walls and that the January 1983 injury, therefore, could not have aggravated his condition. This finding is inconsistent with the medical testimony and disregards the fact that Baxter was able to satisfactorily perform exactly the type of rough-in carpentry work he had performed prior to his first injury. The record supports Baxter’s claim that following his surgery and recovery from the first injury his disability was reduced, and three years after his first injury he was able to resume work as a rough-in carpenter. After returning to work, Baxter’s second injury aggravated the prior disability to the point that he is again 100 percent disabled. The employer admitted that prior to his second accident, Baxter was physically able to work. The testimony of both physicians indicates that Baxter’s condition had improved from the 100 percent permanent partial disability rating which existed after the 1978 injury and that the second injury in 1983 aggravated Baxter’s preexisting condition resulting in increased disability.
Recognizing that modern medical treatment, time, and the healing qualities of nature make it possible to reduce a disability or even completely rehabilitate a disabled worker, the legislature has stated that the primary purpose of the Workers’ Compensation Act is to restore the injured worker to substantial and gainful employment. The injured worker is entitled to medical and physical rehabilitation services necessary to restore the worker to employment. Once the worker has been rehabilitated, the Director reviews the award and modifies the existing award. If an injured worker without good cause refuses to undertake rehabilitation, reeducation, or to enter a retraining program, the Director is required to suspend the payment of compensation. K.S.A. 44-5lOg.
A compensation award for permanent partial disability is intended to substitute for lost earning power and not simply to recompense loss of ability to perform a certain task. A monetary award cannot replace a lost limb or repair damage to a crippled back, but once such an award is made, the claimant’s earning power should be regarded as restored. Therefore, a previous disability rating should not affect the right to a subsequent award for permanent disability. Hampton v. Professional Security Co., 5 Kan. App. 2d 39, 611 P.2d 173 (1980). K.S.A. 44-510a provides the method of reducing later awards when a subsequent injury aggravates a preexisting disability for which compensation was or is still being paid.
Prior settlement agreements regarding a claimant’s percentage of disability control only the rights and liabilities of the parties at the time of that settlement. The rating for a prior disability does not establish the degree of disability at the time of the second injury. One hundred percent permanent partial disability is not an unalterable condition and a worker may be rehabilitated and then return to work. A worker who has once been adjudged 100 percent permanently partially disabled and has received or is receiving benefits, but thereafter returns to work and is again injured while working, is not precluded from receiving benefits for the loss of wages resulting from the subsequent injury’s aggravation of his disability. A disabled worker may receive disability benefits more than once, but the worker may not pyramid benefits and receive in excess of the maximum weekly benefits provided by statute.
Both the district court and the Court of Appeals erred when they determined that claimant was 100 percent permanently partially disabled when he began work for respondent. The record shows that claimant’s prior disability had been reduced and his second accident aggravated his prior injury and left him with a further disability. Under the facts and circumstances of this case, the Director made the proper finding of facts and applied the statutory reduction under the provisions of K.S.A. 44-510a. On this issue, the judgments of the Court of Appeals and the District Court are reversed and the Director’s order is reinstated.
Finally, since the respondent has not met its burden of proof that the claimant knowingly concealed or misrepresented his condition prior to employment with Walls, the Workers’ Compensation Fund had no liability pursuant to K.S.A. 44-567(c)(6). The judgments of the Court of Appeals and the District Court on this issue are affirmed. | [
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|
The opinion of the court was delivered by
Miller, J.:
This is an action for injunctive and declaratory relief, commenced by the plaintiff Omni Outdoor Advertising of Missouri, Inc., against the defendant, City of Topeka, arising out of the enactment on October 22, 1985, and the enforcement by the City of an ordinance regulating billboards. After a hearing on Omni’s application for a temporary injunction, the trial court denied not only the temporary injunction sought, but denied plaintiff s prayer for declaratory and injunctive relief, and entered judgment against Omni on the merits. Omni appeals.
It first contends that the trial court erred in determining the action on its merits following a hearing on Omni’s application for a temporary injunction. It argues that it was not provided with a trial on the merits of the action, and that this amounts to a denial of procedural due process. We will address only this issue, since we deem it dispositive of the appeal.
Omni is a Missouri corporation authorized to do business in Kansas. It is in the business of locating sites for, constructing, and selling advertising space on outdoor billboards. In 1985, it researched the existing Topeka City ordinances and the City’s outdoor advertising market to evaluate the potential success of new outdoor advertising business in the area. Thereafter, it began to lease sites and to apply for sign permits under the then-existing Topeka billboard ordinance. In September and October 1985, Omni paid the required fees and the City issued to it permits for approximately 39 billboard locations. On October 15, the Mayor introduced a new billboard ordinance and the City Council enacted the new ordinance on October 22, 1985. The new ordinance repealed the earlier ordinance under which Omni’s permits were issued. The new ordinance became effective upon publication on October 30, 1985.
The new ordinance contains the following provision:
“Permits which have been issued prior to the effective date of this ordinance shall become null and void after sixty days from the effective date of this ordinance unless work is commenced towards the completion of the structural elements of the sign.” (Emphasis, supplied.)
On November 5, 1985, the City notified Omni by letter that its existing permits would be void pursuant to the new ordinance if “substantial structural work is not completed within 60 days of the passage of the ordinance.” On January 3, 1986, the City notified Omni by letter that 36 of its permits were cancelled. Omni contacted the City by phone and was advised that the City had inspected the site locations and was cancelling permits for all sites where the pipe to support the sign was not in place. Omni contends that this was the first notice it had that the City construed the language of the ordinance, “unless work is commenced towards the completion of the structural elements of the sign,” to mean unless the pipe to support the sign has been installed. Omni immediately applied for an extension of time as allowed by the ordinance, but that, request was summarily denied.
On January 14, 1986, the City issued a notice to Omni that it was in violation of the city code for constructing billboards without a valid permit, and on the same day the City filed suit against Omni in the municipal court of Topeka and secured an ex parte injunction enjoining Omni from further construction. The merits of that lawsuit are not before us.
On February 13, 1986, Omni commenced this action, alleging various constitutional infirmities in the ordinance and the enforcement thereof, and seeking declaratory relief and a temporary and permanent injunction. It filed an application for a restraining order pursuant to K.S.A. 60-903. Before proceeding further, we set forth the applicable statutes, K.S.A. 60-901, -902, -903, and -905:
“60-901. Nature of injunction. Injunction is an order to do or refrain from doing a particular act. It may be the final judgment in an action, and it may also be allowed as a provisional remedy.”
“60-902. Provisional remedies; when granted. When it appears by a verified pleading or affidavit that a party is entitled to the relief demanded, and such relief or any part thereof consists in restraining the commission or continuance of some act, the commission or continuance of which during the litigation would produce injury to a party; or when during the litigation it appears that a party is doing or threatens or is about to do, or is procuring or suffering to be done, some act in violation of a party’s rights respecting the subject of the action, or tending to render the judgment ineffectual, an order may be granted to restrain such act.”
“60-903. Restraining order, (a) No notice or bond required. A restraining order may issue without notice or bond, except as provided in K.S.A. 60-904(b), but if it appears to the judge that a restraining order may result in damage to the party restrained, a bond to secure payment of any damages sustained may be required. An application for a restraining order shall also be considered as an application for a temporary injunction and either party may give notice of hearing thereon. The order shall remain in force until the hearing on the application for a temporary injunction.
“(b) Service. Where a restraining order is issued without notice it shall be served upon each party restrained in the manner prescribed for serving a summons.”
“60-905. Temporary injunction; notice, hearing and bond, (a) Notice and hearing. No temporary injunction shall be granted until after reasonable notice to the party to be enjoined and an opportunity to be heard.
“(b) Bond. Unless otherwise provided by statute, no temporary injunction shall operate unless the party obtaining the same shall give an undertaking with one or more sufficient sureties in an amount fixed by the judge and approved by the clerk of the court, securing to the party injured the damages he or she may sustain including attorney fees if it be finally determined that the injunction should not have been granted.”
Since we will refer later in this opinion to the federal rule governing the issuance of temporary injunctions (called preliminary injunctions), we quote it here for convenience. Fed. R. Civ. Proc. 65 reads:
“(a) Preliminary Injunction.
“(1) Notice. No preliminary injunction shall be issued without notice to the adverse party.
“(2) Consolidation of Hearing With Trial on Merits. Before or after the commencement of the hearing of an application for a preliminary injunction, the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application. Even when this consolidation is not ordered, any evidence received upon an application for a preliminary injunction which would be admissible upon the trial on the merits becomes part of the record on the trial and need not be repeated upon the trial. This subdivision (a)(2) shall be so construed and applied as to save to the parties any rights they may have to trial by jury.”
Following a hearing on the motion for a restraining order at which time counsel for both parties appeared, the trial court granted a restraining order without bond until further order of the court. The order granting the restraining order concluded with the following language:
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Plaintiff shall not be required to post a bond pending hearing on the corresponding temporary injunction.” (Emphasis supplied.)
The matter was set for hearing. On March 13, 1986, the City filed its memorandum in opposition to plaintiff s request for preliminary injunctive relief. On March 14, plaintiff filed its memorandum in support of temporary injunction. The hearing was held on March 14. At the outset, the trial court announced: “We’ve called Omni Outdoor Advertising against the City, 86-CV-213, for hearing on the Application for Temporary and Permanent Injunctive Relief filed by the plaintiff.” Both parties appeared by counsel. The only evidence before the court was a joint stipulation of the parties, detailing the city code, the new ordinance, letters exchanged between the parties, and the like; an affidavit of plaintiff s vice-president, Daniel L. Hardin; and copies of the motion for injunctive relief filed by the City in Municipal Court, and the order issued by that court. Throughout the hearing, counsellor the plaintiff and for the City referred to the hearing as one for preliminary injunction, and made statements such as: “by the time we get to the trial of the merits on this case” or “between now and the time for the permanent injunction hearing.” Clearly, counsel did not catch the trial court’s introductory remark about the hearing being one on plaintiff s application for permanent injunctive relief. There is nothing in the record to indicate that the trial court gave counsel advance notice that the hearing on the application for temporary injunction would be combined with a trial on the merits, and no stipulation of counsel to that effect. At the conclusion of the hearing, the trial court took the matter under advisement, and on April 10, 1986, issued its comprehensive memorandum decision and order, denying declaratory and injunctive relief, and deciding the lawsuit on the merits adversely to Omni. Omni appeals.
Omni contends that it was provided no trial on the merits. It received no notice that the hearing on the temporary injunction was to be consolidated with or considered a trial of the action on the merits. It complains that additional facts relevant to the legal issues would be sought through discovery, and would be presented at trial. Significantly, the joint stipulation filed by the parties recited that the stipulations were “subject to subsequent proof and cross examination upon the trial of the merits.” Omni contends that the parties agreed not to introduce testimony at the hearing on the preliminary injunction and not to conduct discovery prior thereto.
Omni contends that discovery would have disclosed a discriminatory enforcement policy on the part of the City in favor of one of Omni’s competitors; that vagueness of the ordinance would be demonstrated because different interpretations of the crucial language was given at various times by City officials; and that Omni would be able to demonstrate, on a site-by-site basis, that it did have a vested property interest in its building permits. It also contends that evidence of exactly when and how the City determined what would constitute compliance with the ordinance is a very important fact which was not available to the court and could be obtained only through discovery which Omni intended to conduct prior to trial on the merits. The suggested evidence appears relevant to Omni’s substantive claims.
K.S.A. 60-905 contains no specific authority for the consolidation of a preliminary injunction hearing with trial on the merits, and we find no Kansas case directly in point. Our cases merely state the purpose of a preliminary injunction is to preserve the status quo until a final determination of the controversy can be made. U.S.D. No. 503 v. McKinney, 236 Kan. 224, 228, 689 P.2d 860 (1984); Comanche County Hospital v. Blue Cross of Kansas, Inc., 228 Kan. 364, Syl. ¶ 1, 613 P.2d 950 (1980).
The federal counterpart, Fed. R. Civ. Proc. 65, quoted above, specifically provides for the consolidation of the hearing on the application for a preliminary injunction with trial on the merits.The federal appeals courts have been alert to the problems faced by counsel when the hearings are consolidated, however, since as in Kansas, the burden placed upon a litigant seeking a temporary or preliminary injunction is different from that placed upon one seeking a permanent injunction. Thus, the federal courts have required adequate and unambiguous notice to the parties if there is to be a consolidation. The general rule followed in a majority of the circuits is stated in Pughsley v. 3750 Lake Shore Drive Cooperative Bldg., 463 F.2d 1055, 1057 (7th Cir. 1972):
“If a consolidation of a trial on the merits with a hearing on a motion for a preliminary injunction is to be ordered, the parties should normally receive clear and unambiguous notice to that effect either before the hearing commences or at a time which will still afford the parties a full opportunity to present their respective cases. A litigant applying for a preliminary injunction should seldom be required either to forego discovery in order to seek emergency relief, or to forego a prompt application for an injunction in order to prepare adequately for trial. Different standards of proof and of preparation may apply to the emergency hearing as opposed to the full trial.”
This or a similar notice requirement has been recognized in Warehouse Groceries Management v. Sav-U-Warehouse, 624 F.2d 655, 657 (5th Cir. 1980); Reese Pub. Co. v. Hampton Intern. Communications, 620 F.2d 7, 12 (2d Cir. 1980); Acha v. Beame, 531 F.2d 648, 651 (2d Cir. 1976); Fenstermacher v. Philadelphia National Bank, 493 F.2d 333, 337 (3d Cir. 1974); and Eli Lilly and Company v. Generix Drug Sales, Inc., 460 F.2d 1096, 1106 (5th Cir. 1972). See Gellman v. State of Maryland, 538 F.2d 603 (4th Cir. 1976); Dry Creek Lodge, Inc. v. United States, 515 F.2d 926 (10th Cir. 1975); Santiago v. Corporacion de Renovacion Urbana, Etc., 453 F.2d 794 (1st Cir. 1972).
The federal case law also provides examples of adequate and inadequate notice. In Reese Pub. Co., 620 F.2d at 12, the court found notice adequate where “the court repeatedly made clear its intention to consolidate unless there were any ‘material disputed issues of fact.’” The court also asked the parties whether there was any reason the case should not be given “accelerated treatment.” No such notice was given in the case at bar.
The Seventh Circuit found notice inadequate when the trial court stated after the first day of testimony:
“ ‘Now I am going to insist, counsel, that whatever your total case is, and I want to give you every reasonable opportunity to put it in, that you complete it before I request the defendants to go ahead.’ ” Pughsley, 463 F.2d at 1056.
Similarly, in Warehouse Groceries Management, 624 F.2d at 657, the Fifth Circuit found notice inadequate where the trial court notified the parties before the case went to trial that it “might” enter an order of consolidation and then entered an order of consolidation on the same date as the final judgment in the case.
Returning to the case before us, we know of no reason why a Kansas trial court cannot consolidate a hearing on a motion for a temporary injunction with a trial on the merits of an injunction action, providing that no prejudice results to the parties. Factors to be considered include but are not limited to the parties’ preparedness for trial, including the completion of or the need for additional discovery, the availability at the hearing of evidence which either party proposes to introduce upon trial, the issues involved, and the adequacy of time which the parties have to prepare for the hearing. If the parties agree to consolidation, then with the court’s consent consolidation may be ordered. If the parties do not agree, then the trial court must determine whether or not there is to be a consolidation. If the court determines to consolidate, all parties must be given adequate, clear, and unambiguous notice of the consolidation.
Here, we hold that Omni was not given notice that the hearing on the application for a temporary injunction was to be consolidated with a trial of the action on the merits, and Omni sustained actual prejudice. For this reason, the judgment of the district court must be reversed. We have not considered, and make no ruling upon, the substantive issues raised in the briefs.
The judgment is reversed, and the case is remanded to the trial court for further proceedings in conformity with this opinion. | [
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|
The opinion of the court was delivered by
Prager, C.J.:
This is a direct appeal from jury convictions of aggravated robbery (K.S.A. 21-3427) and an aggravated weapons violation (K.S.A. 21-4202). This case arose out of the robbery of the Medical Arts Center in Topeka on August 21, 1985, by a single robber armed with a knife. The robber obtained drugs from the pharmacist. There was no dispute in the case as to the manner in which the robbery occurred. The fact issue presented at trial was the identity of the defendant, Randy W. Bodtke, as the robber. The defendant was identified by the pharmacist on duty, Leland White, and also by Barbara Estes, a nurse who worked in the building and who identified the defendant as the man she observed in the hallway shortly before the robbery occurred.
The defendant denied any participation in the crime, claiming that he was home babysitting his children when the robbery occurred. The jury chose to believe the evidence presented by the State and convicted the defendant on both charges. The defendant appealed.
The first point raised on the appeal is that defendant was denied effective assistance of counsel because the public defender, his appointed counsel, failed to investigate, interview witnesses, and have crucial witnesses testify. Defendant’s claim of ineffective assistance of counsel was raised in his motion for a new trial, filed by newly appointed counsel. A hearing was held on defendant’s motion and the issue of ineffective assistance of counsel was fully presented to the trial court. At the hearing on the motion, defendant testified he had a chest-length beard on the date of the robbery, August 21, 1985, and that he shaved off his beard two days after the robbery and three days before his arrest on August 26, 1985. Defendant’s alibi was that he was at home babysitting his three children and did not leave the house until after the time the robbery occurred.
Defendant complained that he advised his trial counsel that at the time of the incident he was living with a woman named Dana who would be able to support his alibi. Also, he advised his counsel that Dana’s oldest son might be a possible witness regarding the babysitting. Defendant further testified that he advised his trial counsel that his live-in girl friend, Dana, would testify that he had a full beard which he shaved off after the date of the robbery but before his arrest. Defendant also claimed that he advised his counsel that a friend named Dale and two bartenders could testify that defendant had not shaved off his beard until two days after the robbery. Stated simply, the defendant argues that all of these witnesses would have supported his testimony that he could not have been the robber because the robber was clean shaven and defendant had a full beard on the day the robbery took place.
It is important to note that none of these claimed witnesses appeared at the hearing on the motion for a new trial except his girl friend, Dana. Although Dana testified that the defendant had had a full beard and shaved it off, she could not say that he had a beard on the day the robbery occurred. In other words, her testimony was inconclusive and did not support the defendant’s claim. At the hearing on the motion for a new trial, the defendant did not call to the stand his friend, Dale, his girl friend’s oldest son, or the two bartenders whom the defendant also claimed would have testified in regard to the defendant’s having a full beard on the day of the robbery. Because none of these witnesses appeared, the trial court had no way of knowing whether testimony could have been presented at the trial which would have supported defendant’s testimony.
In response to this testimony, the State called to the witness stand the public defender who had represented defendant at the trial. He testified that he had difficulty contacting Dana, but, when he did so, she could not help because she did not know when the defendant had shaved off his beard. The public defender also testified that he had spoken with the defendant’s friend, Dale, and that he had discussed defendant’s situation with Dale. Dale did indicate that he saw the defendant after the day of the robbery with a beard. The public defender gave Dale his card and said if he was willing to testify to that in court to show up at his office on the next Monday morning. Dale never showed up at the public defender’s office. Thereafter, the public defender testified he made unsuccessful efforts to contact Dale by telephone. The public defender stated that he would have called Dale to the stand to testify about defendant’s beard, if the witness had been willing to testify, but he knew about Dale’s past criminal record and felt that Dale would not have been of any great help to the defendant.
The trial court denied the motion for a new trial, pointing out the identification testimony of the nurse was strong and convincing, and that defendant’s proposed testimony would probably not have affected the outcome of the trial. The trial court stated that, looking at trial counsel’s position at the time, it was not unreasonable for him to conclude that the defendant’s live-in girl friend, Dana, who could not give a specific date as to when defendant had shaven his beard, would not have been of any help to the defense at the trial. Furthermore, the testimony of defendant’s friend, Dale, would have been highly suspicious because of his unwillingness to testify. We have read the record in the case and concluded that the trial court did not err in denying the defendant’s motion for a new trial on the basis of ineffective trial counsel. At the hearing on the motion for a new trial, not a single witness testified in a manner that would have aided the defense. The trial court simply did not know whether such testimony existed. As to the testimony of the defendant’s girl friend, Dana, it was clear that she would not have been of help because she could not say when defendant shaved off his beard.
In Chamberlain v. State, 236 Kan. 650, 694 P.2d 468 (1985), it was held that a convicted defendant’s claim that defense counsel’s assistance was so defective as to require reversal of a conviction requires that the defendant show, first, that counsel’s performance was deficient and, second that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial.
“(a) The proper standard forjudging attorney performance is that of reasonably effective assistance, considering all the circumstances. When a convicted defendant complains of the effectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness. Judicial scrutiny of counsel’s performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.
“(b) With regard to the required showing of prejudice, the proper standard requires the defendant to show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.” Syl. ¶ 3.
We have considered these principles and, in light of the factual circumstances shown in the record, we have concluded that the evidence presented by defendant on his motion for new trial failed to show that the actions of defendant’s trial counsel fell outside the wide range of reasonable professional assistance or that defendant was deprived of a fair trial. We find no error on this point.
The second point raised by the defendant is that the trial court erred in instructing the jury as to the elements of aggravated robbery. The instruction required the State to prove beyond a reasonable doubt that the defendant was armed with a deadly weapon, “to wit: a knife.” The record shows that the defendant did not object to this instruction at the trial and a reversal cannot be had unless the instruction was clearly erroneous. In our judgment, the instruction was not clearly erroneous. The evidence was undisputed that the robber forcibly obtained drugs from the possession of the pharmacist while threatening the pharmacist with a knife described as having an unfinished pine handle and a blade 4 to 5 inches long. We find no error.
Defendant’s third point on the appeal is that the trial court erred in instructing the jury as to the credibility of witnesses. The instruction given was longer and more detailed than PIK Crim. 2d 52.09, which is customarily given by the trial court in criminal cases. In our judgment, however, the instruction, as given, was not erroneous merely because it addressed the various factors for testing a witness’s credibility. The instruction did not focus on or emphasize any particular factor and we do not believe that the jury could have been misled. The defendant did not object to the instruction at the time of trial, nor was this issue presented to the trial court. We find no basis for reversing the case on this point.
The final point raised by the defendant on the appeal is that the trial court lacked jurisdiction on the charge of aggravated weapons violation under K.S.A. 21-4202 because the information was fatally defective. Defendant, Bodtke, was convicted on Count 2, which charged that the defendant unlawfully, willfully, and knowingly carried on his person a knife with the intent to use the same unlawfully, the defendant having been convicted of a felony within five years preceding the violation. K.S.A. 21-4201 defines the offense of unlawful use of a weapon as knowingly carrying concealed on one’s person, a dangerous knife or possessing with the intent to use the same unlawfully against another. The defendant maintains that the charge in this case was defective because it failed to allege that the defendant, Bodtke, possessed a dangerous knife with intent to use the same unlawfully against another.
At the trial, the prosecutor noticed that the information was defective after the evidence had been presented and, before closing argument, moved the court to make a correction to Count 2 to allege that the defendant knowingly possessed a dangerous weapon with the intention to use the same unlawfully against another. The defendant did not object to the amendment, and the court granted leave to the State to amend the information. However, it is undisputed that the charge was never amended in writing and was left as originally drafted. The State argues that the defense did not object thereto and never raised the issue in the trial court.
In the recent case of State v. Wilson, 240 Kan. 606, 731 P.2d 306 (1987), it was held that an information which omits one of the essential elements of the crime it attempts to charge is jurisdictionally and fatally defective, and any conviction of that offense must be reversed. Furthermore, a conviction based upon an information which does not sufficiently charge the offense for which the accused is convicted is void. In State v. Wilson, it was further held that an information must be in writing and that where leave is granted to the prosecution to amend an information, the amendment must be made either (a) by filing an amended information, or (b) by striking out or writing in the pertinent matter by interlineation upon the document on file.
It is clear that in the present case the information was defective because it failed to allege an essential element of an aggravated weapons violation — that the defendant knowingly possessed a dangerous knife with an intent to use it unlawfully against another. Although the prosecutor moved to amend and was granted leave to amend, the prosecutor failed either to file a written amended information or to interlinéate the words “against another” in the information then on file. Under the circumstances, we hold that State v. Wilson is controlling, and that the defendant’s conviction on the charge of aggravated weapons violation under Count 2 must be reversed and set aside. We note, however, that the sentence imposed in Count 2 was ordered to run concurrently with the sentence imposed for aggravated robbery as charged in Count 1. Thus, the controlling sentence of 15-20 years for aggravated robbery, Count 1, remains the controlling sentence in the case.
The judgment of the district court is affirmed in part and reversed in part in accordance with the views expressed in this opinion. | [
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The opinion of the court was delivered by
Prager, C.J.:
This is a direct appeal by the defendant, Ithiel Lawton, from convictions of two counts of aggravated battery against a law enforcement officer (K.S.A. 21-3415) and one count of aggravated assault of a law enforcement officer (K.S.A. 21-3411). This case arose out of a shooting which took place at the home of the defendant’s parents at 1126 Lime Street, Topeka, Kansas. On March 5, 1985, at approximately 7:00 a.m., police officers were summoned by defendant’s father to a domestic disturbance at that address. As the police officers approached the residence, the defendant opened fire with a shotgun on the police officers. Officer Reed was shot in the face, neck, and shoulder. Officer Horn was shot in the hand. Shots were also fired at Officer Meier, but he was not hit. The officers surrounded the house and eventually took defendant into custody. A subsequent search of the house produced a 12-gauge shotgun with spent rounds of 12-gauge ammunition. The facts surrounding the shooting were not in controversy at the trial.
The sole defense presented by defendant was that defendant was legally insane at the time the shooting occurred. On March 6, 1985, defendant was charged with two counts of aggravated battery against a law enforcement officer and one count of aggravated assault of a law enforcement officer. On March 7, 1985, the district court ordered a mental examination to determine defendant’s competency to stand trial. Defendant was found incompetent and committed to Larned State Security Hospital pursuant to K.S.A. 22-3303. Defendant was discharged from the security hospital on September 26, 1985, and returned to Shawnee County. Thereafter, defense counsel informed the court of defendant’s intention to rely on the defense of insanity. On November 4, 1985, defense counsel moved for an order to determine defendant’s competency to understand the criminal proceedings and assist in his defense. On November 5, 1985, the district court ordered a mental examination. Defendant was again found incompetent to stand trial and committed to Larned State Security Hospital on November 6, 1985. On February 6, 1986, he was discharged and returned to Shawnee County.
A preliminary hearing was held, after which defendant waived his right to a trial by jury. The case was tried to the court without a jury on April 24, 1986. At the trial, there was a stipulation as to the admission of certain joint exhibits consisting of a transcript of an interview by a police officer with the defendant on the date of the shooting, March 5, 1985; a memorandum from a detective concerning the apprehension of defendant; a transcript of the preliminary hearing; and a statement given to the police by defendant’s mother on March 5. Both counsel for the State and counsel for the defendant moved to admit these exhibits into evidence. The State then rested.
During presentation of defendant’s evidence, the court received into evidence, by stipulation, joint exhibits 5 and 6. Exhibit 5 was a voluminous collection of reports of defendant’s frequent hospitalizations in Topeka State Hospital from 1969 to the time of the trial. Exhibit 6 consisted of a similar report from Larned State Security Hospital dating back to 1979. The evidence was undisputed that defendant had consistently been diagnosed as suffering from chronic paranoid schizophrenia.
Defense counsel then called as witnesses Dr. Daniel E. Pickar, a clinical psychologist, and Dr. William S. Logan, a psychiatrist. Each of these doctors gave his expert opinion as to defendant’s mental condition at the time of the shooting on March 5, 1985.
Based upon the evidence presented, the trial court found that defendant was legally sane and criminally responsible for his acts in shooting at the police officers. The trial court sentenced defendant to consecutive sentences and then suspended the sentences and committed defendant to Larned State Security Hospital pursuant to K.S.A. 22-3430. Defendant brought a timely appeal to this court.
The sole issue presented on the appeal is whether there is substantial competent evidence in the record to support the trial court’s finding that the defendant was legally sane at the time he shot at the police officers.
At the outset, it would be helpful to review the basic principles to be applied where a defense of legal insanity is asserted in a criminal action. These principles are set forth in State v. Nemechek, 223 Kan. 766, 576 P.2d 682 (1978), where it is stated:
“ ‘There is a presumption of sanity in a criminal proceeding that may be relied upon by the prosecution to establish a prima facie case. (State v. Coltharp, 199 Kan. 598, 433 P.2d 418 [1967].) The prosecution is never required to introduce evidence of sanity until some evidence is introduced which, if believed by the jury, could raise a reasonable doubt as to a defendant’s sanity at the time the offense was committed. (See, State v. Penry, 189 Kan. 243, 368 P.2d 60 [1962]; Wilson v. United States, 288 F.2d 121 [D.C. Cir. 1960]; State v. Clokey, 83 Idaho 322, 364 P.2d 159 [1961]; People v. Smothers, 2 Ill. App. 3d 513, 276 N.E.2d 427 [1971], aff'd 55 Ill. 2d 172, 302 N.E.2d 324 [1973].) This evidence may come from either the defendant or the state. (State v. Johnson, 92 Kan, 441, 446, 140 Pac. 839 [1914]; State v. Crawford, 11 Kan. 32, 45 [1873]; Davis v. State, 90 Neb. 361, 133 N.W. 406 [1911]; Lemke v. State, 56 Okla. Crim. 1, 9, 32 P.2d 331 [1934].) The term ‘evidence,’ however, does not include the insanity plea or opening statements. Neither rebuts the presumption of sanity. (State v. Coltharp, supra at 602; State v. Mendzlewski, 180 Kan. 11, 13, 299 P.2d 598 [1956]; United States v. Currier,, 405 F.2d 1039, 1042 [2d Cir. 1969], cert. denied 395 U.S. 914, 23 L. Ed. 2d 228, 89 S. Ct. 1761 [1969], Cf. United States v. Marbley, 410 F.2d 294 [5th Cir. 1969].) ....
“ ‘The presumption of sanity is rebutted when evidence is introduced which could raise a reasonable doubt concerning a person’s sanity. (State v. Johnson, supra at 447.) At that point the question of sanity becomes a question for the jury, assisted by proper instructions. (State v. Johnson, 223 Kan. 237, 240, 573 P.2d 994 [1977], State v. Coltharp, supra at 603. State v. Mendzlewski, supra at 14.) If the jury has a reasonable doubt as to a defendant’s sanity at the time the offense was committed, it is under a duty to acquit the defendant. (State v. McBride, 170 Kan. 377, 226 P.2d 246 [1951]; State v. Nixon, 32 Kan. 205, 4 Pac. 159 [1884]; State v. Crawford, supra at 43.) It is a rare occasion when an insanity question should be taken from a jury by a motion for acquittal. In State v. Gustin, 212 Kan. 475, 510 P.2d 1290 (1973), we said:
“ ‘A trial judge in passing upon a motion for judgment of acquittal must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes guilt beyond a reasonable doubt is a fairly possible result, he must deny the motion and let the jury decide the matter. If he concludes that upon the evidence there'must be such a doubt in a reasonable mind, he must grant the motion.’ (Syl. ¶ 3.)
“In State v. Chase, 207 Kan. 352, 362, 480 P.2d 62 (1971), we quoted from Dusky v. United States, 295 F.2d 743, 756 (8th Cir. 1961), as to the test for acquittal in an insanity defense case:
“ ‘ “. . . [I]n order to remove this case from the jury’s consideration. . . . ‘reasonable men must necessarily possess a reasonable doubt as to defendant’s sanity and . . . reasonable men must conclude that the government has failed to sustain its burden of proving beyond a reasonable doubt that the accused had the capacity to commit the crime.’ . . .’ ”
“Unless evidence of insanity is so great that a trial judge can rule the government could not convince a reasonable man it has sustained its burden of proof as to defendant’s sanity, the issue should go to the jury, as we have recommended in the past. (E.g., State v. Sagebiel, 206 Kan. 482, 480 P.2d 44 [1971]; State v. Chase, supra; State v. Coltharp, supra; State v. Mendzlewski, supra.)” pp. 767-69.
In State v. Sanders, 225 Kan. 147, 151, 587 P.2d 893 (1978), we find the following language:
“It is a rare occasion when an insanity question should be taken from a jury by a motion for acquittal. [Citation omitted.] The test for taking the issue of insanity away from the jury was adopted by this court in State v. Chase, 206 Kan. 352, 362, 480 P.2d 62 (1971). In order to remove the case from the jury’s consideration on the basis of the evidence, reasonable men must necessarily possess a reasonable doubt as to defendant’s sanity and must conclude that the government has failed to sustain its burden of proving beyond a reasonable doubt that the accused had the capacity to commit the crime. Dusky v. United States, 295 F.2d 743, 756 (8th Cir. 1961).”
State v. Boan, 235 Kan. 800, 686 P.2d 160 (1984), discusses the test to be applied in Kansas to determine whether a defendant is criminally insane. In Kansas, the courts apply the M’Naghten test. Under the M’Naghten test for criminal insanity, the accused is to be held not criminally responsible (1) where he does not know the nature and quality of his act, or, in the alternative, (2) where he does not know right from wrong with respect to that act. Under the “right and wrong” test of criminal insanity, it must be proved that at the material time the accused did not know that what he was doing was contrary to law. It is not sufficient to prove that he believed that, while what he was doing was legally wrong, it was morally right.
In the present case, the trial court found from the evidence presented at the trial that the defendant, Lawton, understood the nature and quality of his act in shooting at the police officers and further understood that what he was doing was legally wrong. Having rejected the defense of legal insanity, the trial court found defendant to be criminally responsible on all three counts and found him guilty of the same.
As noted heretofore, the only issue on appeal is whether there is sufficient evidence in the record to support the trial court’s findings that the defendant was legally sane at the time he committed the acts of shooting at the police officers. The defendant argues that the evidence was not sufficient to sustain the findings of the trial court.
The scope of appellate review when defendant challenges the sufficiency of the evidence to support a conviction is whether the evidence, viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found defendant guilty beyond a reasonable doubt. The appellate court looks only to the evidence in favor of the verdict to determine if the essential elements of the charge are sustained. State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986).
We have concluded from our review of the record that the finding of the trial court that defendant was not legally insane at the time of the shooting is supported by substantial competent evidence. In the present case, there was no dispute that defendant had a severe mental illness. According to Dr. Pickar, defendant had the mental disease known as paranoid schizophrenia. According to Dr. Pickar, defendant is unable to think clearly, his thought processes are very illogical, and his overall concept of reality is grossly impaired. Defendant also suffers from delusional-type thinking. Dr. Pickar noted defendant sees things as very evil and he is fearful of homosexual attacks.
Dr. Pickar testified on direct examination as follows:
“[Although I believe that he knew he was firing on police officers and knew that they were police officers, he believed that they were, as I said, members of this ‘Black Mafia,’ and I think that he wasn’t able to appreciate the nature of his acts, because, from his perception, he saw that he was protecting his life, that these officers were out to harm him, possibly to take his life, to homosexually accost him, and that he perceived that he needed to protect himself from this, and was actually told by these voices to do that, and in that context, could not appreciate what he was doing, the nature of his acts, nor does it seem that he believed that he was wrong, because he saw himself as protecting himself.”
On cross-examination, Dr. Pickar testified that defendant had sufficient intelligence and understanding to know that he was firing a shotgun; that he knew he was shooting a shotgun with live shells. Further, he also knew he was shooting at a uniformed police officer. Dr. Pickar testified that defendant understood the nature and quality of his act intellectually. He understood it is against the law to shoot a shotgun at a human being. Dr. Pickar testified that defendant thought it was all right under the circumstances, because he had a different value system based upon his delusional state. In response to certain questions, Dr. Pickar testified as follows:
“Q. But, he does understand, at least on an intellectual basis, that it’s wrong, that it’s against the law to shoot somebody. Doesn’t he understand that?
“A. Yes.
“Q. He understands that it’s against the law to shoot somebody with a shotgun. Isn’t that correct?
“A. (No response.)
“Q. On an intellectual basis.
“A. Yes. Although, I’m not — I’m not sure that he could appreciate that at that moment.
“Q. All right. But, generally speaking, Mr. Lawton, based on your interview with him, he knows it’s wrong, it’s against the law to shoot somebody.
“A. Yes, sir.
“Q. All right. And he’s probably known that all his life, has he not; ever since he was a little fellow?
“A. I think so.
“Q. But, because of his different value system, or his delusions, under the circumstances, he thought that was all right.
“A. Yes.”
On further cross-examination, Dr. Pickar testified, in substance, that at the time of the shooting defendant might not have been thinking that it was wrong, that might not have been in his consciousness. The prosecutor then further questioned Dr. Pickar as follows:
“Q. He was not consciously thinking about it, but Mr. Lawton knows that it is wrong to shoot somebody, doesn’t he?
“A. Yes.”
Dr. William S. Logan, Director of Law and Psychiatry at the Menninger Foundation in Topeka, also testified on behalf of defendant. He also diagnosed defendant’s illness as chronic schizophrenia. On direct examination, he testified that, in his opinion, defendant did not know the wrongfulness of the act and could not appreciate the nature and consequences of his acts. Dr. Logan was of the opinion that defendant thought he was going to be attacked by members of the “Black Mafia.” He further testified on direct examination that, at the time, defendant was acting under the delusion of self-defense. On cross-examination Dr. Logan testified that the defendant knew that it was wrong to shoot somebody. He saw the police in uniform and believed them to be police officers and, when they approached the front door, he intentionally and purposefully pointed and fired his shotgun at them.
In this case, it was undisputed that defendant suffered from a severe mental illness. He had been hospitalized 20 times since 1969. He was clearly dangerous to himself and to others. We have concluded from the entire record in the case, however, that the trial court did not err in finding, as a matter of fact, that defendant was legally sane at the time he committed the criminal acts.
It is clear that defendant understood the nature and quality of his acts in shooting at the police officers. Although there was conflict in his testimony, the psychologist, Dr. Pickar, testified that, at the time defendant fired at the police officers, he knew that it was against the law to shoot somebody, but, because of his different value system or his delusions, he thought that it was all right. We cannot say that the trial court abused its discretion in concluding that defendant was not criminally insane or that a rational factfinder could not have reached the same conclusion.
The factual circumstances in this case are comparable to the factual circumstances in State v. Boan, 235 Kan. 800, where defendant Boan’s conviction was upheld, although defendant maintained that he was legally insane as a matter of law. In Boan, the defendant argued that the trial court had erred in failing to direct a verdict of not guilty by reason of insanity. The evidence was conflicting whether defendant knew the difference between right and wrong at the time of the homicide. Medical experts, called on behalf of the defendant, testified that Boan had a severe mental illness and mental aberrations such as hearing voices and a preoccupation with certain ideas and concerns that are real to him but which do not make sense to others. Boan had a feeling of being God or a representative of God at the Last Supper, who had been in this world at various times and who had been threatened or attacked at various times by those who had not given him credit for his rightful position. In the opinion of Dr. Menninger, Boan had paranoid schizophrenia, sensed that other persons were in his body trying to displace him and that some of those people were at the KU Medical Center. Boan felt that he could not tolerate this and had to defend himself from what he described as “salvation level attacks.” This court, in Boan, held that the issue of insanity was a fact question for the jury to determine, because the expert testimony as to Boan’s capacity to know the difference between right and wrong was in conflict.
As pointed out. in State v. Sanders, 225 Kan. 147, it is a rare occasion when an insanity question should be taken from a jury by a motion for acquittal. We hold that the question of legal insanity was a fact issue which was determined by the trial judge, who had an opportunity to hear the testimony of the expert witnesses. We cannot say that a reasonable mind could not have reached the conclusion that, although defendant was suffering from a serious mental illness, he was not legally insane at the time the shooting occurred.
The judgment of the district court is affirmed.
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|
The opinion of the court was delivered by
Allegrucci, J.:
This is a class action suit brought to recover the reasonable value of helium extracted from natural gas. The case was settled and Amoco Production Company (defendant/cross-claimant) appeals from the district court’s award of attorney fees.
In May 1971, plaintiff landowners brought this suit in Finney County District Court to recover the reasonable value of helium contained in helium-bearing natural gas extracted from their land. Plaintiffs owned land in or near Finney County from which natural gas was severed under oil and gas leases held by defendant lessee-producers. The producers originally named in the suit were: Amoco Production Company, represented by Gott, Young & Bogle; Champlin Petroleum Company, represented by Adams, Jones, Robinson and Malone until September 1974, and by Gott, Young & Bogle after that date; Skelly Oil Company (which became Getty Oil Company as the result of a merger and later became Texaco Producing, Inc.) represented by Foulston, Siefkin, Powers & Eberhardt (Foulston); Mobil Oil Corporation, Continental Oil Company, Northern Pump Company, D.R. Lauck Oil Company, Kansas Natural Gas, Inc., and Petroleum, Inc., represented by Hershberger, Patterson, Jones and Roth (Hershberger). Unnamed members of the class were 186 producers who delivered gas into the system serving the Sunflower plant near Scott City, Kansas. The Foulston firm was considered lead counsel in the case with Hershberger and Gott, Young & Bogle acting as co-lead counsel.
Plaintiffs also named as defendants pipeline companies which had constructed the Sunflower plant for the purpose of extracting helium from natural gas for sale to the private market. The Sunflower plant began extracting helium from natural gas in September 1968. These companies which extracted and then sold the helium are referred to as the “helex companies” or “helex group.”
The lessee-producers cross-claimed against the helex compa nies for the reasonable value of the helium extracted. KN Energy, Inc., (K-N) cross-claimed against the lessee-producers, alleging that they had warranted title to all gas purchased by K-N and had agreed to indemnify and hold K-N harmless from all claims relating to the gas.
Shortly after this case was filed, it was removed to federal court. There were long periods of relative inactivity during the thirteen years the case was pending in federal court. The parties were working on and awaiting developments in other related helium cases.
The parties attempted to negotiate a settlement in the summer of 1984, but negotiations proved fruitless. On September 4, 1984, approximately one week before trial was to begin, the case was remanded to state district court because the federal court lacked subject matter jurisdiction. The parties had completely prepared the case for trial prior to remand.
Following remand, the parties continued preparation for trial, briefed issues, and held a pretrial conference. The district court certified the plaintiff landowners and defendant lessee-producers as classes pursuant to K.S.A. 60-223(b)(l). The lessee-producer/cross-claimants and cross-defendants were certified as a K.S.A. 60-223(b)(3) class. The parties again began settlement negotiations which culminated in a settlement agreement on September 11, 1985.
The settlement required K-N and Cities Service Cryogenics, Inc., (Cities Service) to pay the landowner and lessee-producer classes for helium produced and sold at the plant from 1968 through December 31, 1984, at the rate of $3.25 per thousand cubic feet (mcf). From January 1, 1985, until deposit of funds as required in the agreement, Cities Service and K-N were required to pay 19.45% of the amount received for helium sales. Interest was to be calculated at 6% per annum until July 1, 1980, and at 10% per annum until deposit of the funds with the clerk. The payments were to be allocated on the basis of one-eighth to the landowners and seven-eighths to the lessee-producers, or the royalty fraction specified in each lease if different from one-eighth. Based on testimony estimating helium production, the court found that Cities Service and K-N should deposit an initial settlement fund of $8,000,363.93. This amount reflected $75,000 advanced to the Foulston firm for expenses incurred for expert consultants and for an allocation study. The fund was to be invested in treasury bills until final distribution, which was scheduled for October 15, 1986.
The parties also entered into an agreement covering future helium sales in which Cities Service and K-N agreed to pay 19.45% of gross proceeds from the sale of helium. Cities Service and K-N were able to obtain the signatures of 176 of K-N’s 186 natural gas suppliers. The 176 suppliers who consented to the agreement represent approximately 99% of the helium supplied to the plant. The district court found both agreements to be fair and reasonable to all parties.
The court appointed Jim Goering of the Foulston firm as special master to send notice to all class members, review filings, compile a listing of persons entitled to receive payment, aid in allocating and distributing the settlement fund, and aid the court in resolving controversies which might arise.
The settlement ordered payment from the settlement fund of the litigation expenses and attorney fees of the landowner and lessee-producer classes. The amounts were to be determined by the district court.
The district court ordered that notice of the settlement agreement be sent to each member of the lessee-producer class. The notice reported the terms of the settlement and required counsel for the lessee-producer class to file and serve on all named members of the lessee-producer class copies of their verified applications for attorney fees and expenses. Any class members objecting were required to file a pleading on or before February 11, 1986. The district court also ordered publication of the notice.
In their fee applications, class counsel requested that the fund reimburse all lessee-producer litigation expenses and attorney fees advancements, with interest. Counsel also requested 20% of the fund balance as attorney fees. The three firms agreed that of the 20%, 60% (equivalent to 12% of the common fund) should be awarded to the Foulston firm; 26.5% (or 5.3% of the fund) should go to the Hershberger firm; and 13.5% (or 2.7% of the fund) should go to Gott, Young & Rogle. (These are the figures agreed to at the attorney fees hearing, not the amounts requested in the applications.)
On February 11, 1986, Amoco filed a notice of objection to the requested attorney fees and a motion for an evidentiary hearing on the matter. Amoco’s objection was based on the following contentions: 1) Gott, Young & Rogle should not be permitted to recover from Amoco’s portion of the common fund recovery because Amoco had paid them pursuant to their longstanding fee arrangement; 2) the attorney fees awarded Foulston and Hershberger should not be assessed against Amoco’s share of the recovery because Amoco’s interests were represented by its own counsel; 3) clients who had paid attorney fees to class counsel should be reimbursed from fees awarded to class counsel, not from the fund, to prevent class counsel from obtaining a double recovery of attorney fees; and 4) the hourly rates sought by class counsel were excessive.
At the March 11 and 12, 1986, hearing to determine attorney fees, Amoco presented testimony from a certified public accountant with the firm of Grant Thornton (formerly Fox and Company) regarding the class counsel fee applications. Ladd Petroleum Corporation, an unnamed member of the lessee-producer class, also questioned whether the requested attorney fees were reasonable.
The district court correctly noted that it must determine reasonable attorney fees in accordance with Shutts v. Phillips Petroleum Co., 235 Kan. 195, 679 P.2d 1159 (1984), aff'd in part, rev'd in part 472 U.S. 797, 86 L. Ed. 2d 628, 105 S. Ct. 2965 (1985). All attorney fees and expenses advanced by lessee-producers, together with interest, were ordered reimbursed from the fund. Class counsel were awarded 18% of the common fund as attorney fees to be distributed as agreed by counsel. The court adopted appellee’s (Foulston firm’s) proposed findings of fact and conclusions of law on the attorney fees issue as authority for its decision. The court found that there was no just reason for delay and expressly directed the entry of judgment. K.S.A. 1986 Supp. 60-254(b).
Amoco timely appeals the attorney fees award.
Appellee lessee-producers (hereafter appellees) first contend Amoco does not have standing to bring this appeal. Appellees claim that Amoco will have to pay more in attorney fees and expenses under the result urged by Amoco on appeal than it would have to pay under the district court’s ruling and therefore Amoco lacks standing to bring this appeal.
General rules regarding standing on appeal were stated in Blank v. Chawla, 234 Kan. 975, 978, 678 P.2d 162 (1984):
“Ordinarily a party cannot appeal from a judgment unless it has a particular interest therein and is aggrieved or prejudiced thereby. Ordinarily its interest must be immediate and pecuniary. McLeod v. Palmer, 96 Kan. 159, 150 Pac. 535 (1915). Appeals are not for the purpose of settling abstract questions, however interesting or important to- the public generally, but only to correct errors injuriously affecting the appellant. Anderson v. Carder, 159 Kan. 1, 4, 150 P.2d 754 (1944).”
In Carter v. State Department of Social Welfare, 189 Kan. 688, 689, 370 P.2d 1019 (1962), the court noted that modification of a journal entry would have benefited the appellant “and a party has no right to complain on appeal of an order in his favor.”
The record before this court does not support the appellees’ claim of lack of standing. Under Amoco’s theory, it would be reimbursed $18,219.00 for litigation expenses and interest previously advanced. This is the amount appellees contended Amoco should be reimbursed in their suggested findings of fact and conclusions of law. Amoco will be reimbursed its portion of the common fund allocated to attorney fees, or $9,685.29. (This amount was obtained by determining what percentage of the common fund Amoco will recover. The total common fund, $8,000,363.93, was divided by Amoco’s highest estimate of its share, $250,000.00. Amoco’s share is 3.12% of the common fund. The total amount to be reimbursed parties from the fund for attorney fees, $310,426.12, was multiplied by 3.12%.) Amoco must also pay its share of the $156,277.47 allocation, settlement, and publication costs, or $4,875.86 ($156,277.47 x 3.12%). These figures are summarized as follows:
Amoco is reimbursed: $18,219.00 litigation expenses & interest paid to date of settlement
$ 9,685.29 share of fund allocated for attorney fees (3.12% of _$310,426.12)
$27,904.29
Amoco pays:
$37,448.95 fees already paid
4,875.86 share of settlement & publication costs (3.12% of $156,227.47)
16.446.62 amount previously paid to _litigation fund
$58,771.43
The net effect would be that Amoco pays $30,867.14 in attorney fees, costs, and expenses ($58,771.43 minus $27,904.29).
Under the district court’s order, Amoco will be reimbursed $66,500.43 from the common fund. Amoco will then pay its share (3.12%) of the total amount paid from the fund for reimbursed attorney fees and allocation, settlement, and publication costs ($310,426.12 + $156,277.47 $466,703.59), or $14,561.15 ($466,703.59 x 3.12%). Amoco will also pay 18% of its $250,000 recovery for attorney fees, or $45,000. These figures are summarized as follows:
Amoco is reimbursed: $37,448.95 fee paid to GY&B
16.446.62 amount previously paid to litigation fund
12,604.86 interest
$66,500.43
Amoco pays: $14,561.15 share of costs
45,000.00 share of attorney fees
(18% of $250,000.00)
37,448.95 fee already paid to GY&B
16.446.62 litigation costs paid
$113,456.72
The net effect would be that Amoco pays $46,956.29 in attorney fees, costs, and expenses. Amoco would pay $16,089.15 more in attorney fees and costs under the court’s order than under its theory. Obviously, Amoco has a sufficient interest in the district court’s judgment as to attorney fees and is injured, aggrieved, and prejudiced thereby.
Appellees’ argument is without merit and we find that Amoco has standing to bring this appeal.
We now turn to the merits of this appeal. Amoco first contends that Gott, Young & Bogle was collaterally estopped from claiming a portion of the common fund as attorney fees.
Amoco contends that its fee arrangement with Gott, Young & Bogle was determined in a previous action and that Gott, Young & Bogle was collaterally estopped from raising the issue in the present case. Amoco bases its contention on the court’s findings in National Helium Corporation v. Panhandle Eastern Pipe Line Company (No. KC 1980 [D. Kan. May 15, 1985]). In Panhandle, the court found that Gott, Young & Bogle was employed in the helium litigation by Amoco pursuant to Amoco’s employment policy for outside counsel and that Amoco had paid the firm for legal services rendered throughout the litigation. The court found that this precluded reimbursement to Amoco of payments made to Gott, Young & Bogle as costs of the settlement proceeding. Amoco raised this issue at the hearing to determine attorney fees.
In Kearney v. Kansas Public Service Co., 233 Kan. 492, 508, 665 P.2d 757 (1983) (quoting Williams v. Evans, 220 Kan. 394, Syl. ¶ 2, 552 P.2d 876 [1976]), the court stated tire elements of collateral estoppel:
“ ‘The doctrine of collateral estoppel may be invoked as a bar to litigating an issue when the following is shown: (1) a prior judgment on the merits which determined the rights and liabilities of the parties on the issue, based upon ultimate facts as disclosed by the pleadings and judgment; (2) the parties are the same or in privity; and (3) the issue was actually determined and was necessary to support the judgment.’ ”
Amoco, without further discussion, states that “[t]he record conclusively demonstrates that all of these elements have been satisfied” and that the district court erred in failing to apply the doctrine of collateral estoppel. Contrary to Amoco’s assertion, however, the elements necessary to establish collateral estoppel are not present. The attorney fees issue was not “necessary to support the judgment” in the underlying action. Courts have recognized that an award of attorney fees, although appealable, is separable from and collateral to the rights asserted in the underlying action. In re Derickson, 640 F.2d 946, 948 (9th Cir. 1981). See also Sprague v. Ticonic Bank, 307 U.S. 161, 170, 83 L. Ed. 1184, 59 S. Ct. 777 (1939) (petition for reimbursement of attorney fees is an independent proceeding supplemental to the original proceeding); Trustees v. Greenough, 105 U.S. 527, 531, 26 L. Ed. 1157 (1881) (counsel fees incidental and collateral to main cause).
Also missing is the element of mutuality of parties. “[A]n attorney is not a party to a suit for which he is retained [citation omitted], and a contingent fee does not give an attorney such an interest in the litigation so as to make him a party [citation omitted].” Giles v. Russell, 222 Kan. 629, 634, 567 P.2d 845 (1977).
Gott, Young & Bogle was not collaterally estopped from claiming attorney fees from the common fund.
Amoco next contends that Gott, Young & Bogle is not entitled to recover attorney fees from Amoco’s portion of the common fund. Amoco argues that, because it employed Gott, Young & Bogle pursuant to its “Guidelines Governing Retention of and Relationship with Outside Counsel,” the law firm is bound by that agreement. The guidelines state, in part:
“We expect to be billed strictly on the basis of lawyer and paralegal time involved, plus reasonable other expenses, predominately of an out-of-pocket nature. . . .
“Needless to say, we do not pay a bonus or other supplement based on results obtained.”
The district court did not determine whether Gott, Young & Bogle was employed pursuant to the guidelines. The district court ruled: “I conclude that in establishing reasonable fees, the Court must determine, on the basis of the entire class, appropriate and reasonable fees to be allowed, without regard to a single named party’s agreement or lack of agreement with counsel.”
There is authority for the district court’s conclusion. In Dunn v. H.K. Porter Co., Inc., 602 F.2d 1105, 1110 (3d Cir. 1979), the court stated:
“ ‘Where the only basis for a fee award is noncontractual, the court’s authority to determine the amount of the award to the class attorney is clear. Even where there is a fee contract, courts have the general power to override it, and set the amount of the fee.’ Developments in the Law — Class Actions, 89 Harv. L. Rev. 1318, 1607 (1976). See also Manual for Complex Litigation § 1.47(b)(2) (1977, West Pub. Co.)”
However, there is no reason to reach this issue. Under the district court’s decision, Amoco is to be reimbursed all of the fees it advanced Gott, Young & Bogle from the fund. Gott, Young & Bogle received an amount determined to be reasonable by the district court. Amoco therefore is no longer paying the fee to Gott, Young & Bogle; instead all members of the class, including Amoco, share in paying the fee. Amoco does not pay Gott, Young & Bogle twice but pays only its proportional share of the litigation fees and expenses. The district court was correct in finding that Gott, Young & Bogle is entitled to recover attorney fees from Amoco’s portion of the common fund; however, Gott, Young & Bogle should not be allowed to recover twice for services rendered in this case at the expense of all class members, including Amoco. This inequitable result can be avoided simply by reducing both the attorney fee award and Gott, Young & Bogle’s 13.5% share of the attorney fee award by $37,448.95, which is the amount Amoco paid Gott, Young & Bogle for attorney fees.
Amoco next contends the district court erred in awarding attorney fees to Foulston, Siefkin, Powers & Eberhardt and Hershberger, Patterson, Jones & Roth from Amoco’s share of the fund.
Amoco argues that, since it was adequately represented throughout the litigation by Gott, Young & Bogle, the Foulston and Hershberger firms should not be awarded attorney fees from its portion of the common fund.
In Boeing Co. v. Van Gemert, 444 U.S. 472, 478, 62 L. Ed. 2d 676, 100 S. Ct. 745 (1980), the court recognized the right of a lawyer who recovers a common fund to recover a reasonable fee from the fund as a whole:
“Since the decisions in Trustees v. Greenough, 105 U.S. 527 (1882), and Central Railroad & Banking Co. v. Pettus, 113 U.S. 116 (1885), this Court has recognized consistently that a litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney’s fee from the fund as a whole. See Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970); Sprague v Ticonic National Bank, 307 U.S. 161 (1939); cf. Hall v. Cole, 412 U.S. 1, (1973). The common-fund doctrine reflects the traditional practice in courts of equity, Trustees v. Greenough, supra, at 532-537, and it stands as a well-recognized exception to the general principle that requires every litigant to bear his own attorney’s fees, Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S., at 257-258. The doctrine rests on the perception that persons who obtain the benefit of a lawsuit without contributing to its cost are unjustly enriched at the successful litigant’s expense. See, e.g., Mills v. Electric Auto-Lite Co., 396 U.S., at 392. Jurisdiction over the fund involved in the litigation allows a court to prevent this inequity by assessing attorney’s fees against the entire fund, thus spreading fees proportionately among those benefited by the suit. See id.., at 394.”
Although it is clear that class counsel are entitled to a reasonable fee from the common fund recovered as a result of their efforts, difficulties arise when members of the class are represented by their own attorneys. One approach taken is that the class attorney “may receive fees from that share of the fund attributable to class members other than his or her own private clients, whether or not those other class members are themselves represented by counsel.” In re Agent Orange Product Liability Litigation, 611 F. Supp. 1296, 1317 (E.D.N.Y. 1985). However, in Agent Orange, the court noted that this raises issues as to whether class counsel’s private clients can be charged with a pro rata share of the total fee award to all attorneys and whether those class members have a right to contribution from the rest of the class toward payment of their own attorney fees.
In Vincent v. Hughes Air West, Inc., 557 F.2d 759, 770 (9th Cir. 1977), the court stated that “as a general rule, if the third parties [beneficiaries of the fund] hire their own attorneys and appear in the litigation, the original claimant cannot shift to them his attorney’s fees.” However, the Hughes court noted an exception to this rule where the contributions of lead counsel and other attorneys are unequal. The purpose of the exception is to avoid unjust enrichment, or “coattailing.” 557 F.2d at 772.
The district court’s decision in this case eliminated both of those problems. By ordering that all attorney fees already paid by the parties be reimbursed from the fund, all fees are shared equally by all members of the class whether they were represented by individual counsel or represented only by class counsel. The attorneys themselves were in a unique position to assess each firm’s contribution to the total recovery effort. This solution is not a workable one where the attorneys are unable to reach an agreement as to each attorney’s proportional contribution toward attaining the common fund. However, under the unique facts of this case, the trial court did not abuse its discretion. Shutts v. Phillips Petroleum Co., 235 Kan. at 224.
Amoco’s final contention is that the district court did not apply the correct standard in awarding attorney fees.
The trial court recognized that reasonable attorney fees must be determined in accordance with guidelines stated in Shutts v. Phillips Petroleum Co., 235 Kan. at 223-24:
“The amount of attorney fees awarded should be within the sound discretion of the trial court based upon guidelines established by this court. In 3B Moore’s Federal Practice ¶ 23.91, the following criteria are suggested to be considered by the trial court in determining the size of attorney fees to be awarded in a class action:
“ ‘(1) the number of hours spent on the case by the various attorneys and the manner in which they were spent;
“ ‘(2) the reasonable hourly rate for each attorney;
“ ‘(3) the contingent nature of success;
“ ‘(4) the extent, if any, to which the quality of an attorney’s work mandates increasing or decreasing [the] amount to which the court has found the attorney reasonably entitled.’
“Citing Lindy Bros. Bldrs., Inc. of Phila. v. American R. & S. San. Corp., 487 F.2d 161, 166-69 (3d Cir. 1973). [Appeal after remand 540 F.2d 102 (3d Cir. 1976).] This list of considerations is not exclusive, however. Other considerations include the amount involved, as it determines the risk of the client and the commensurate responsibility of the attorney, and the result of the case, because that determines the real benefit to the client. Of major importance is the consideration of the benefit the lawsuit has produced. 7A Wright & Miller, Federal Practice and Procedure: Civil § 1803, p. 289-90; Oppenlander v. Standard Oil Company (Indiana), 64 F.R.D. 597 (D. Colo. 1974). In State of Illinois v. Harper & Row Publishers, Inc., 55 F.R.D. 221, 224 (N.D. Ill. 1972), the court recognized some attempt must be made by courts to suit the award of fees to the performance of the individual counsel in light of the time spent reaching a settlement, to prevent attorneys from taking advantage of class actions to merely obtain lucrative fees. See also 7A Wright & Miller, Federal Practice and Procedure: Civil § 1803, p. 292.
“Even where there has been no objection to the amount of attorney fees requested, it is the responsibility of the court to determine the award to assure that the amount awarded is reasonable. The trial court must hold an evidentiary hearing so that it has before it sufficient information to make a fair and adequate fee award. 3B Moore’s Federal Practice ¶ 23.91, p. 23-568. Many recent cases have required attorneys to produce detailed time records indicating the time expended by each lawyer and the nature of work done by each to allow the court to determine, among other things, the necessity for and quality of the work done. See, e.g., In Re Equity Funding Corp. of America Securities, 438 F. Supp. 1303 (C.D. Cal. 1977); Green v. Wolf Corporation, 69 F.R.D. 568 (S.D.N.Y. 1976). This, however, is only to be used as a starting point to determine the appropriate fee. 7A Wright & Miller, Federal Practice and Procedure: Civil § 1803, p. 267-69 (1983 Supp.). Wright and Miller suggest, in addition, that the court should consider the contingent nature of succeeding in the action, which would be awarded in addition to the allowance for the quality of counsel’s work. The reasons for the contingency award are (1) the plaintiffs’ lawyer will not receive any compensation until the lawsuit is concluded and then only if he has been successful in securing a judgment for his clients, (2) unless both of these conditions are met the attorney will receive nothing for his efforts and will not be reimbursed for his expenses, and (3) lawyers who actively litigate class action cases largely depend on court-awarded fees for their economic survival. 7A Wright & Miller, Federal Practice and Procedure: Civil § 1803, pp. 274-75 (1983 Supp.).”
Both Amoco and appellees agree that Shutts controls, but each cites numerous authorities supporting their own interpretation and application of the Shutts guidelines. The differing approaches taken by courts in awarding fees was noted in Brewer v. Southern Union Co., 607 F. Supp. 1511 (D. Colo. 1984). The Brewer court noted four methods for calculating attorney fees:
“In the past, some courts utilized a percentage of the total recovery as the best measure of a fair and reasonable fee. Under this approach the court would award attorney’s fees based solely on the size of the fund and without an analysis of the means used to arrive at the appropriate percentage. This procedure has been heavily criticized, and no recent cases have utilized it. See, e.g., West v. Capitol Federal Savings & Loan Assoc., 558 F.2d 977, 981 (10th Cir. 1977); Black Gold, Ltd. v. Rockwool Industries, Inc., 529 F. Supp. 272, 274 (D. Colo. 1981), rev’d on other grounds, 732 F.2d 779 (10th Cir. 1984) [cert. denied 469 U.S. 854 (1984)]; Knutson v. Daily Review, Inc., 479 F. Supp. 1263, 1268 (N.D. Cal. 1979).
“A second approach has been to weigh and evaluate a number of factors in determining a fair and reasonable fee award. Among the criteria to be considered are the number of hours reasonably expended on the case and the reasonable hourly rate charged by the attorneys. Under this method, however, these two factors carry no more significance than several others that may be considered depending on the facts and circumstances unique to the case. This approach is perhaps best exemplified by such cases as Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir. 1974) and In Re King Resources Co. Securities Litigation, 420 F. Supp. 610 (D. Colo. 1976). Indeed, prior to the decision in Ramos v. Lamm, 713 F.2d 546 (10th Cir. 1983), the Tenth Circuit Court of Appeals had expressly approved of the approach discussed in Johnson v. Georgia Highway Express. See, Battle v. Anderson, 614 F.2d 251 (10th Cir. 1980); Francia v. White, 594 F.2d 778 (10th Cir. 1979).
“A third method for calculating a reasonable fee award is the so-called ‘lodestar’ analysis first discussed in Lindy Brothers Builders, Inc. of Philadelphia v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir. 1973) (“Lindy I”) and Lindy Brothers Builders, Inc. of Philadelphia v. American Radiator & Standard Sanitary Corp., 540 F.2d 102 (3d Cir. 1976) (“Lindy II’) (Appeal after Remand). This method has been gaining increasing popularity in recent years. As described in Lindy I and Lindy II this method starts with a determination of the number of hours reasonably expended on the case as well as a reasonable hourly rate associated with the hours spent. The two multiplied together establish the ‘lodestar’. Thereafter, under the most restricted approach, the lodestar may be modified up or down to reflect (1) the contingent nature of success in the action and (2) the quality of the work performed.
“A variation of the lodestar approach has been the subject of judicial and scholarly comment. This fourth method of calculating attorney’s fees is really nothing more than a combination of the second and third methods outlined above. The lodestar calculation is used as a starting point, but with subsequent modification to reflect other subjective factors.” Brewer v. Southern Union Co., 607 F. Supp. at 1519-20.
Historically, in class action cases, courts have distinguished between common fund cases and statutory fee cases in determining attorney fees. In each case, the plaintiff must prevail before an attorney fee is awarded, the difference being that, in a common fund case, the attorney fee is paid from the recovery (common fund), while in a statutory fee case, the attorney fee is paid by the defendant, and is awarded regardless of whether the recovery is monetary or nonmonetary. The difference is important because, in the former, unless there is a common fund, i.e., a monetary recovery, attorney fees cannot be awarded. It follows that in common fund cases, the amount of recovery acts as a ceiling on the amount of the attorney fees that can be awarded. The amount of recovery is more important in determining a reasonable attorney fee in common fund cases than in statutory fee cases.
The U.S. Supreme Court recognized this distinction in Blum v. Stenson, 465 U.S. 886, 900 n.16, 79 L. Ed. 2d 891, 104 S. Ct. 1541 (1984). At issue in Blum was an award of reasonable attorney fees under the Civil Rights Attorney’s Fees Awards Act of 1976 (42 U.S.C. § 1988 [Supp. V 1976]). The Blum court quoted from Hensley v. Eckerhart, 461 U.S. 424, 435, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983):
“ ‘Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation, and indeed in some cases of exceptional success an enhanced award may be justified.” Blum v. Stenson, 465 U.S. at 901.
In a footnote, the Blum court noted:
“Nor do we believe that the number of persons benefited is a consideration of significance in calculating fees under § 1988. Unlike the calculation of attorney’s fees under the ‘common fund doctrine,’ where a reasonable fee is based on a percentage of the fund bestowed on the class, a reasonable fee under § 1988 reflects the amount of attorney time reasonably expended on the litigation. Presumably, counsel will spend as much time and will be as diligent in litigating a case that benefits a small class of people, or, indeed, in protecting the civil rights of a single individual.” (Emphasis added.) 465 U.S. at 900 n.16.
In 3 Newberg on Class Actions § 14.03 (2d ed. 1985), the author made the following interpretation of the Blum footnote:
“In contrast to a statutory fee determination, payable by the defendant depending on the extent of success achieved, a common fund is itself the measure of success. While the common fund recovered may be more or less than demanded or expected, the common fund represents the benchmark from which a reasonable fpe will be awarded. Accordingly, in Blum v Stenson, another recent statutory fee case, the Supreme Court recognized this major distinction governing the determination of fee awards under a statute in contrast to the common fund doctrines. . . .
“Thus, a reasonable fee will be largely based on a fair percentage of the common fund.”
In Com. of Puerto Rico v. Heckler, 745 F.2d 709 (D.C. Cir. 1984), the court approved an attorney fee award based on a fee request which documented time spent on the case but did not specify an hourly rate. The Heckler court stated that, although the normal starting point in calculating fees is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate, “[o]ther indicia of overall reasonableness control, however, ‘under the “common fund doctrine,” where a reasonable fee is based on a percentage of the fund bestowed on the class.’ Blum v. Stenson, 465 U.S. 886, 104 S. Ct. 1541, 1550 n.16, 79 L. Ed. 2d 891 (1984); [citations omitted.]” 745 F.2d at 714.
Another interpretation of the Blum footnote is found in In re Warner Communications Securities Litigation, 618 F. Supp. 735 (S.D.N.Y. 1985), a class action securities fraud/insider trading suit. The Warner court first applied the lodestar method and then considered modifying factors. Citing the Blum footnote, the Warner court noted, “The Supreme Court has recently stated that the fee request must be looked at in terms of the percentage it represents of the total recovery.” 618 F. Supp. at 749.
The Warner approach appears to be a well-reasoned interpretation of the Blum footnote. Rather than abandoning the traditional lodestar approach, the Warner approach provides an additional check on the amount of attorney fees awarded by applying the lodestar approach and then determining whether the award represents a reasonable percentage of the common fund recovered. It should be noted both Blum and Warner are statutory fee cases.
In the present case, the district court did not perform a formal lodestar analysis and noted the difficulty in so doing because comprehensive time records were not kept by counsel. Although the lodestar factors, time and hourly rates, are two of the factors we require the district court to consider in arriving at a reasonable attorney fee award, our decision in Shutts does not preclude the method adopted by the Warner court nor the method employed by the district court in the present case. The district court considered the Shutts factors, including time and hourly rates. The journal entry states:
“In deciding a fair, reasonable and adequate award of attorneys’ fees to counsel for Landowner-Lessors’ and to counsel for Lessee-Producers’, the Court has considered factors set forth in Shutts v. Phillips Petroleum Company, 235 Kan. 195: the time and labor required; the novelty and difficulty of the questions and issues involved; the skill required to perform the legal services properly; preclusion of other employment; customary fees and awards in similar cases; the contingent nature of the fee; the amount involved and the results obtained, including the benefit to the class members which has been achieved by the efforts of class counsel in this novel and complex litigation; the experience, reputation, and ability of counsel; and the nature of the representation with the client.”
The district court also found that the lodestar analysis, if applied, would support the attorney fee awarded by the court. The district court awarded an attorney fee equal to 18% of the common fund, which, after considering the factors required by Shutts, it found to be reasonable. The fact that the district court expressed the attorney fees awarded as a percentage of the common fund is not per se an abuse of discretion, absent a showing that Shutts factors were not considered by the court.
In Warner, the U.S. District Court noted that courts have traditionally “awarded fees in the 20% - 50% range in class actions.” 618 F. Supp. at 794. In Newberg, Attorney Fee Awards § 2.08 (1986), the author states:
“No general rule can be articulated on what is a reasonable percentage of a common fund. Usually 50 per cent of the fund is the upper limit on a reasonable fee award from a common fund, in order to assure that fees do not consume a disproportionate part of the recovery obtained for the class, though somewhat larger percentages are not unprecedented. In the normal range of common fund recoveries, common fee awards fall in the 20 to 30 per cent range.
“The median of this usual range is 25 per cent. As an alternative to an initial focus on the recognized percentage range of common fund fee awards for cases that do not present extraordinary circumstances, this median 25 per cent figure can be considered by courts in their discretion as a reasonable and convenient starting point (norm) for common fund fee awards from which deviations should be made as the court considers various relevant fee determination factors.”
The better policy would be for the trial court to perform a lodestar analysis in order that the fee award would bear some relationship to the time expended by the attorneys. The trial court would then have the discretion to modify the lodestar amount based on the other Shutts factors. To then view the fee award as a percentage of the common fund is an additional check in determining if it is reasonable. Although in the present case the district court basically reversed that process, it did consider the factors as required by Shutts in determining the amount to be awarded as attorney fees.
We find, therefore, that the guidelines as established by Shutts were followed and there was no abuse of discretion by the district court. The judgment of the district court is modified by reducing both the attorney fee award and Gott, Young & Rogle’s share of that award by $37,448.95. In all other respects, the judgment is affirmed. | [
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|
The opinion of the court was delivered by
Rosen, J.:
The fugitive disentitlement doctrine generally holds that the appeal of a criminal defendant who has absconded from the jurisdiction of the courts should be dismissed. This case requires us to decide whether the fugitive disentitlement doctrine is alive in Kansas and, if so, whether it is applicable when the record shows only that the State has alleged the defendant failed to report to his or her probation officer.
Steven L. Raibum was convicted of one count of felony possession of marijuana. He was sentenced to a term of 20 months’ imprisonment, with his prison term suspended and the imposition of 18 months’ probation. He timely appealed. Shortly thereafter, the State filed a motion in the district court to revoke Raibum’s probation, alleging failure to report to his probation officer.
On appeal to the Court of Appeals, Raibum raised two issues concerning his conviction. The State raised an additional issue— whether Raibum had abandoned his right to appeal by absconding. The Court of Appeals issued a show cause order directing Raibum to demonstrate that he had submitted to the jurisdiction of the Kansas district court by May 11, 2007, or the appeal would be dismissed with prejudice. Raibum filed a response addressing several reasons why the appeal should not be dismissed but did not directly address his whereabouts. The Court of Appeals ordered the parties to file supplemental briefs addressing the absconder issue.
Ultimately, the Court of Appeals elected to dismiss the appeal. State v. Raiburn, 38 Kan. App. 2d 703, 171 P.3d 654 (2007). This court granted Raiburris petition for review. On August 7, 2008, this court issued an order directing the parties to address at oral argument the question of Raibum’s fugitive status and specifically whether Raibum has submitted to the jurisdiction of the district court. At oral argument, the State indicated that the bench warrant for Raibum was still outstanding. Counsel for Raibum appropriately declined to answer questions regarding his client’s whereabouts.
A Brief History of the Fugitive Disentitlement Doctrine
For over 100 years, Kansas courts have followed a loosely formulated rule, variously known as the fugitive disentitlement doctrine, the fugitive dismissal mle, or the escape mle, which allows courts to dismiss an appeal when a criminal defendant escapes during the pendency of the appeal. See State v. Scott, 70 Kan. 692, 79 P. 126 (1905). The law in Kansas is not as fully developed as it is in other states. Kansas has no statute or mle mandating, or directly authorizing, application of the fugitive disentitlement doctrine, see Supreme Court Rule 5.05 (2008 Kan. Ct. R. Annot. 35) (appellate court may dismiss for any other reason the law requires), and invocation of the doctrine by the appellate courts has been relatively rare. The doctrine is well established, however, in many different variations, in other jurisdictions.
Perhaps the first instance of the United States Supreme Court invoking the doctrine was in 1876, when the Court held that it was within its authority to “refuse to hear a criminal case in error, unless
the convicted party, suing out the writ, is where he can be made to respond to any judgment we may render.” Smith v. United States, 94 U.S. (4 Otto) 97, 97, 24 L. Ed. 32 (1876). In Molinaro v. New Jersey, 396 U.S. 365, 366, 24 L. Ed. 2d 586, 90 S. Ct. 498 (1970), the Supreme Court reaffirmed its support of the doctrine, stating: “No persuasive reason exists why this Court should proceed to adjudicate the merits of a criminal case after the convicted defendant who has sought review escapes from the restraints placed upon him pursuant to the conviction.” In 1993, the Supreme Court again revisited the issue: “It has been settled for well over a century that an appellate court may dismiss the appeal of a defendant who is a fugitive from justice during the pendency of his appeal.” Ortega-Rodriguez v. United States, 507 U.S. 234, 239, 122 L. Ed. 2d 581, 113 S. Ct. 1199 (1993).
The Supreme Court has not only applied the fugitive disentitlement doctrine to appeals pending before that Court, it has upheld the right of states to implement the doctrine statutorily as well as through case law in state courts. In Estelle v. Dorrough, 420 U.S. 534,43 L. Ed. 2d 377,95 S. Ct. 1173 (1975), the defendant escaped from jail after filing his appeal and was recaptured 2 days after the escape. After his recapture, the Texas Court of Criminal Appeals dismissed his case pursuant to Texas Code of Criminal Procedure Annotated, Article 44.09 (1966), which provided for automatic dismissal of an appeal when the defendant escaped during the pendency of the appeal unless the defendant returned voluntarily within 10 days. The United States Supreme Court upheld the constitutionality of the statute, stating: “Disposition by dismissal of pending appeals of escaped prisoners is a longstanding and established principle of American law. [Citation omitted.] This Court itself has long followed the practice of declining to review the convictions of escaped criminal defendants. [Citations omitted.]” 420 U.S. at 537.
The vast majority of states that have not codified the fugitive dismissal rule have judicially adopted it. See, e.g., Young v. State, 518 So. 2d 822, 824 (Ala. Crim. App. 1987), cert. denied 488 U.S. 834 (1988) (“For over a century, Alabama appellate courts have exercised the discretion to summarily dismiss the appeals of those who have escaped custody while their appeals are pending.”); State v. Dyer, 551 N.W.2d 320, 320-21 (Iowa 1996) (exercising “inherent power” to dismiss appeal because of fugitive status despite there being no statute or rule authorizing dismissal on such grounds); State v. Bell, 608 N.W.2d 232, 233-36 (N.D. 2000) (defendant precluded from continuing appeal because he forfeited and abandoned appeal by escaping); State v. Lamontae D.M., 223 Wis. 2d 503, 507-10, 589 N.W.2d 415 (Wis. App. 1998) (applying escape rule to juvenile absconder and dismissing appeal).
There are, however, jurisdictions that do not subscribe to the fugitive disentitlement doctrine. Prior to 1967, Louisiana had statutory authority mandating dismissals where the appellant was a fugitive from justice. See State v. Jugger, 217 La. 687, 694, 47 So. 2d 46 (1950). The statute was removed from the revised version of the Louisiana Code of Criminal Procedure that became effective January 1, 1967. See State v. Falcone, 383 So. 2d 1243, 1246 (La. 1980). The Official Revision Comment to the Louisiana Code of Crim. Proc. Ann., art. 919, p. 70 (West 2008), explains:
“The provision is omitted from this Code, because it is unfair to the defendant. For example, if a man has appealed from a death sentence and he escapes, under [the former statute], the effect is to make the escape a capital offense, since he loses his right to appeal. Furthermore, the more frightened a convicted defendant is, the more likely he is to attempt to escape, and he should not be denied his right to appeal because of such circumstances.”
See Falcone, 383 So. 2d at 1246-47. While providing a novel justification for repealing the codification of the fugitive disentitlement doctrine, Louisiana is in a distinct minority of states refusing to dismiss appeals in which the appellant is a fugitive from justice.
Kansas first utilized the doctrine in City of Holton v. Mannix, 6 Kan. App. 105, 49 P. 679 (1897). The Court of Appeals ordered that unless an escaped appellant submitted to the jurisdiction of the court within 60 days, the appeal would be dismissed. 6 Kan. App. at 106. In analyzing the propriety of retaining, the appeal, the court stated: “If this court should affirm the judgment, he is not likely to appear, and submit to his sentence; and if this court should reverse the judgment, and order a new trial, he will appear or not, as he will consider most to his interest.” 6 Kan. App. at 106. “It is clearly within our discretion to refuse to hear a criminal case on appeal unless the appellant is where he can be made to respond to such judgment as might be rendered.” 6 Kan. App. at 106.
Less than 10 years later, the Kansas Supreme Court dismissed an appeal under the fugitive disentitlement doctrine. See Scott, 70 Kan. at 693-94 (appeal dismissed where defendant violated the conditions of his postconviction bond and failed to appear for a hearing set after notice of appeal had been filed).
In 1978, this court affirmed a trial court’s dismissal of an appeal based on a finding that the appeal had been abandoned. Weser v. State, 224 Kan. 272, 274, 579 P.2d 1214 (1978). The defendant had escaped from custody after sentencing, and the trial court granted the State’s motion to dismiss the appeal approximately 2 weeks after the escape and after the notice of appeal had been filed. After the defendant’s capture and reincarceration, he filed a motion to reinstate his appeal, which the trial court denied. The defendant subsequently filed a K.S.A. 60-1507 motion, which was dismissed by the trial court on a motion by the State that argued the defendant failed to allege grounds showing exceptional circumstances for failing to perfect his direct appeal. On review of the dismissal, this court found that because the appellant’s attorney made no attempt to assure the appellant’s appearance and the appellant voluntarily remained at large until captured and reincarcerated, the trial court was correct in inferring the appellant had abandoned his appeal. 224 Kan. at 273. The court held that “dismissal of an appeal taken by a defendant in a criminal action who intentionally abandons appellate review of his constitutional claim is not an exceptional circumstance excusing a direct appeal.” 224 Kan. at 274.
In 1984, the Court of Appeals again invoked the fugitive disentitlement doctrine, holding: “A convicted defendant who is a fugitive from justice is not entitled to ask an appellate court to correct alleged trial errors and is deemed to have waived the right to appeal.” State v. Scott, 9 Kan. App. 2d 322, 323, 675 P.2d 942 (1984).
Various rationales have been provided for the doctrine. Some courts, including the United States Supreme Court, have based dismissal on a theory of disentitlement, which treats the escape during the pendency of the appeal as an abandonment of the appeal. “While such an escape does not strip the case of its character as an adjudicable case or controversy, we believe it disentitles the defendant to call upon the resources of the Court for determination of his claims.” Molinaro, 396 U.S. at 366. Twenty-three years after Molinaro, the Court reaffirmed the disentitlement rationale, stating: “As applied by this Court, then, the rule allowing dismissal of fugitives’ appeals has rested in part on enforceability concerns, and in part on a ‘disentitlement’ theory that construes a defendant’s flight during the pendency of his appeal as tantamount to waiver or abandonment.” Ortega-Rodriguez, 507 U.S. at 240.
An additional justification for the fugitive disentitlement doctrine is that “dismissal by an appellate court after a defendant has fled its jurisdiction serves an important deterrent function and advances an interest in efficient, dignified appellate practice.” Ortega-Rodriguez, 507 U.S. at 242 (citing Estelle, 420 U.S. at 537). Similarly, the Supreme Court has held that the fugitive disentitlement doctrine serves to encourage respect for the courts. The idea that an appellant would be able to submit to the jurisdiction of a court only if the outcome of the appeal is pleasing to the appellant is
“a contempt of [a court’s] authority, to which no court is bound to submit. It is much more becoming to its dignity that the court should prescribe the conditions upon which an escaped convict should be permitted to appear and prosecute his writ, than that the latter should dictate the terms upon which he will consent to surrender himself to its custody.” Allen v. Georgia, 166 U.S. 138, 141, 41 L. Ed. 949, 17 S. Ct. 525 (1897).
The longest standing basis for the fugitive disentitlement doctrine, however, is the concern for the enforceability of a court’s judgment: “If we affirm the judgment, he is not likely to appear to submit to his sentence. If we reverse it and order a new trial, he will appear or not, as he may consider more for his interest.” Smith, 94 U.S. at 97. As noted earlier and reflected in the following quote from City of Holton, 6 Kan. App. at 106, Kansas has adopted this rationale: “It is clearly within our discretion to refuse to hear a criminal case on appeal unless the appellant is where he can be made to respond to such judgment as might be rendered.” The Court of Appeals applied the doctrine and this rationale to the present case, dismissing the appeal and holding: “An appellate court has the discretion to refrain from addressing issues brought by appellants who, because of their fugitive status, will not be affected by any judgment the court may issue.” Raiburn, 38 Kan. App. 2d 703, Syl. ¶ 1.
Raibum’s Arguments
In his brief to this court, Raibum sets out a number of reasons why the Court of Appeals erred in dismissing his appeal. First, he argues that the appeal is not moot. This argument appears to be based upon a phrase which Raiburn isolates from the Court of Appeals opinion: “ ‘[A]n appellate court does not decide moot questions or render advisory opinions.’ ” 38 Kan. App. 2d at 705 (quoting Board of Johnson County Comm'rs v. Duffy, 259 Kan. 500, Syl. ¶ 1, 912 P.2d 716 [1996]). He argues that a fugitive case differs from a moot case.
Raibum’s interpretation of the quoted language removes it from its context. He had argued to the Court of Appeals the authority for dismissing an appeal could only come from Supreme Court Rule or statute. The Court of Appeals quoted from Duffy and cited State v. Williams, 275 Kan. 284, 288, 64 P.3d 353 (2003) (issue not presented to the lower court will not be considered on appeal), to demonstrate that the Supreme Court Rules or statutes regarding appellate procedure are not the only sources of authority for dismissal of an appeal. Raiburn, 38 Kan. App. 2d at 705. Raibum renews this argument in his brief before this court, contending that the right to appeal is created by statute and may not be abrogated by case law. In this context, the Court of Appeals’ reliance on Duffy and Williams is appropriate: certain common-law mies, such as mootness and the fugitive disentitlement doctrine, may call for dismissal, notwithstanding a statutory right to appeal. See also Dyer, 551 N.W.2d at 320-21 (Iowa court exercising “inherent power” to dismiss appeal because of fugitive status despite lack of statute or rule authorizing dismissal on such grounds). While the exercise of a court’s inherent power to dismiss in these circumstances is dis cretionary, there is no doubt the courts have the power to dismiss appeals.
Raibum argues the fact that fugitive status does not render a case moot “serves to nullify one of the doctrine’s previous justifications . . . ineffectiveness of any appellate judgment.’’Additionally, Raibum submits authority for the proposition that appeals may be heard even when the appellant has died during the pendency of the appeal, see State v. Jones, 220 Kan. 136, 137, 551 P.2d 801 (1976), and argues that because the death of a criminal defendant does not mandate dismissal of an appeal, a defendant’s fugitive status should also not mandate dismissal.
We see a significant difference between the state of being a fugitive and that of being dead. Presumably, the former is significantly more often a matter of choice than the latter. While good reasons may exist for determining issues raised by a defendant who suffers an untimely demise, we do not believe that the defendant who chooses to abscond should be given the option of invoking the assistance of the courts to review his or her appeal and then only accepting the outcome if it is to his or her approval.
Raibum next argues that violation of the terms of his probation is a matter of concern for the trial court, not for this court. He cites Ortega-Rodriguez in support of this proposition. The present case is easily distinguishable from Ortega-Rodriguez. In Ortega-Rodriguez, the defendant escaped after conviction, was sentenced in absentia, and was recaptured before filing a notice of appeal; the fugitive status did not occur during the appellate process. While Raibum correctly cites Ortega-Rodriguez for the proposition that a district court is better situated than an appellate court to impose punishment for absconding during district court proceedings, that is not the case here: Raibum apparently absconded during the appellate process. “Absent some connection between a defendant’s fugitive status and his appeal, as provided when a defendant is at large during the ‘ongoing appellate process,’ [citation omitted,] the justifications advanced for dismissal of fugitives’ pending appeals generally will not apply.” (Emphasis added.) 507 U.S. at 249. The fact that Raibum, if he has absconded, has done so during the pendency of his appeal constitutes a “connection between a de fendant’s fugitive status and the appellate process, sufficient to make an appellate sanction a reasonable response.” 507 U.S. at 244. Moreover, having filed a notice of appeal, Raibum has placed jurisdiction to deal with his absence in the appellate courts.
Raibum argues that even if an appellate court has authority to invoke the fugitive disentitlement doctrine and dismiss his appeal, he does not fall into the categoiy of “fugitive” because he has not escaped from custody. He cites Dunn v. Hindman, 18 Kan. App. 2d 537, 541, 855 P.2d 994, rev. denied 253 Kan. 857 (1993), for the proposition that a fugitive from justice is “a person who commits a crime in one state and is afterwards found in another state.” Although this definition appears to be accurate in the context of extradition cases, it has no application to the fugitive disentitlement doctrine. It does not go to the policy grounds for the disentidement doctrine and strangely suggests that an appellant who is hiding on the Kansas side of the border is entitled to have his or her appeal heard, but an appellant who is, hiding just across the border in Colorado has abandoned his or her appeal.
More compelling is State v. Hess, 180 Kan. 472, 475, 304 P.2d 474 (1956), also cited by Raiburn, in which this court affirmed a trial court finding that a “ ‘[m]ere failure to appear at a particular term would not make the defendant a fugitive from justice, but only an absentee.’ ” Whether a failure to appear as required by conditions of probation constitutes an “escape from custody” sufficient to justify dismissal of an appeal under the fugitive disentitlement doctrine is a debatable question, with jurisdictions weighing in on both sides of the issue.
In United States v. Gonzalez, 300 F.3d 1048 (9th Cir. 2002), the Ninth Circuit Court of Appeals addressed the issue of whether failure to report under the terms of probation established fugitive status. The defendant was sentenced to 60 days’ probation but failed to report to his probation officer, who filed a violation report and requested a warrant for the defendant’s arrest. After the defendant was arrested, the prosecution argued for dismissal under the doctrine of fugitive disentidement. The court disagreed: “The doctrine does not apply to an appellant just because he has not reported as directed to the probation office, in the absence of a showing that he has fled or hidden himself from the jurisdiction of the court.” 300 F.3d at 1051. Additionally, the court went so far as to say that violation of probation terms does not rise to the level of establishing fugitive status: “The record does not establish that Gonzalez was ever a fugitive at all, just that he didn’t comply with his conditions of probation. . . . The purposes of the fugitive disentitlement doctrine would not be furthered by applying it here.” 300 F.3d at 1051.
However, in a noncriminal context, the Ninth Circuit found that failure to report an address change to the required parties for an extended period of time was sufficient to justify dismissal of an appeal under the fugitive disentitlement doctrine in Antonio-Martinez v. I.N.S., 317 F.3d 1089, 1091-93 (9th Cir. 2003). The court dismissed an appeal by a defendant who failed to notify his attorney or the Immigration and Naturalization Service of a new address and subsequently could not be located by his attorney or the court. 317 F.3d at 1093. At the time of the opinion, the defendant had been “out of touch for well over two years.” 317 F.3d at 1091. The court held that “[t]he paradigmatic object of the [fugitive disentitlement] doctrine is the convicted criminal who flees while his appeal is pending. [Citation omitted.] But the doctrine applies in immigration cases as well.” 317 F.3d at 1092. Although there was no evidence that the defendant did anything beyond failing to report a change of address, the court held Antonio-Martinez had failed to satisfy his legal obligations and that failure had led to the inability to locate him. 317 F.3d at 1092.
“His disappearance has the same effect as a criminal defendant’s flight. By failing to report his change of address to either his lawyer or the INS for an extended period of time, he has effectively put himself beyond the jurisdiction of the court. Because no one has any clue where Antonio-Martinez is, his petition has the same ‘heads I win, tails you’ll never find me’ quality that justifies disentitlement in other contexts. Those who invoke our appellate jurisdiction must take the bitter with the sweet: They cannot ask us to overturn adverse judgments while insulating themselves from the consequences of an unfavorable result.” 317 F.3d at 1093.
The Tenth Circuit Court of Appeals has held that a violation of terms of postrelease supervision is sufficient to establish fugitive status for purposes of applying the fugitive disentitlement doctrine: “A term of supervised release is an integral part of a judgment and sentence .... This court will not diminish the importance of that period by disregarding the status of those who become fugitives during supervised release.” United States v. Hanzlicek, 187 F.3d 1219, 1221 (10th Cir. 1999); see also United States v. Lantigua-Bonilla, 83 F.3d 541, 542 (1st Cir. 1996) (By failing to report to postrelease supervision, the appellant was “equally ‘disentitled’ to call on the resources of the appeals court as a defendant who escapes to avoid further custody.”).
Many state courts have held that violation of the reporting terms of probation may suffice to show fugitivity for purposes of the fugitive disentidement doctrine. For example, Oregon courts have taken the position that violating reporting requirements of either probation or postrelease supervision suffices to satisfy fugitive status under the fugitive disentidement doctrine. See State v. Squeglia, 208 Or. App. 496, 499-500, 145 P.3d 292 (2006) (failure to report as required by probation terms constitutes absconding); State v. Nofziger, 206 Or. App. 588, 589-90, 138 P.3d 57 (2006) (failure to report to probation officer is conscious effort to avoid supervision and warrants dismissal of appeal); see also State v. Larrea, 130 Idaho 290,291-92, 939 P.2d 866 (Ct. App. 1997) (dismissal of appeal warranted where defendant had absconded from probation); Commonwealth v. Simon, 391 Mass. 1010, 1010-11, 461 N.E.2d 758 (1984) (defendant who failed to report for probation was fugitive, and appeal was dismissed); Hicks v. State, 824 S.W.2d 132, 133-35 (Mo. App. 1992) (the escape rule applies where the defendant knowingly violated the terms of his probation by leaving the state without his probation officer’s permission); Boyd v. State, 53 S.W.3d 432, 433 (Tex. App. 2001) (appeals dismissed when defendant mailed electronic monitoring equipment to probation officer and monitoring was term of release on bonds); State v. Koloske, 100 Wash. 2d 889, 891-92, 676 P.2d 456 (1984) (appeal dismissed where appellant failed to contact probation officer or appear for arraignment on other charges), overruled on other grounds State v. Brown, 111 Wash. 2d 124, 761 P.2d 588 (1988).
Other courts have analyzed the issue in terms of whether escape is possible when the defendant is not physically restrained. See State v. Crump, 128 S.W.3d 642, 643 (Mo. App. 2004) (“A defendant’s failure to appear constitutes an ‘escape’ for purposes of applying the escape rule.”); Porras v. State, 966 S.W.2d 764, 765 (Tex. App. 1998) (appeal dismissed when defendant “escaped custody” by violating terms of his appeal bond and his whereabouts were unknown); Luciano v. State, 906 S.W.2d 523, 525-26, (Tex. Crim. App. 1995) (the word “custody” for purposes of the fugitive disentitlement rule encompasses both physical imprisonment and the power to imprison). But see Flowers v. State, 608 So. 2d 764, 764 (Ala. Crim. App. 1992) (failing to return to trial as ordered while free on bond did not constitute “escape” from custody); State v. Ford, 205 Or. App. 506, 510-13, 134 P.3d 959 (2006) (failure to comply with probation conditions unrelated to reporting to authorities combined with failure to respond to subsequent arrest warrant did not justify dismissal of appeal under fugitive disentitlement doctrine); State v. Rempel, 114 Wash. 2d 77, 79-83, 785 P.2d 1134 (1990) (appeal retained and decided on merits despite whereabouts of defendant unknown, failure to report as required to community corrections upon release from incarceration, and bench warrant issued for defendant’s arrest).
If it can be shown that a defendant has more likely than not chosen to abscond from the reach of the court and that reasonable measures have been taken to locate him or her which have proved unsuccessful, then the rationale for the fugitive disentitlement doctrine — abandonment or waiver of the appeal and issues of enforceability of the judgment — applies with equal force to the defendant who has violated the reporting terms of probation as to the defendant who has escaped physical custody. But even if such a probation violation may invoke the fugitive disentitlement doctrine, and we hold that it may, it has not been demonstrated that Raibum violated the terms of his probation or that he is a fugitive. The record here shows only an allegation by the State that he has failed to report as required. Generally, there must be some determination that the appellant is actually a fugitive.
There is little discussion in published case law regarding who may raise the issue and which party has the burden of proving or disproving fugitive status in order to determine whether the fugi tive disentitlement doctrine applies. The Texas statute cited in Estelle v. Dorrough, 420 U.S. 534, 535, 43 L. Ed. 2d 377, 95 S. Ct. 1173 (1975), provided: “Upon the fact of such escape being made to appear, the court shall, on motion of the State’s attorney, dismiss the appeal . . . .” It appears that, once the government alleges fugitive status, the burden rests on the defendant to prove that he or she is in the custody of the court. See Smith v. United States, 94 U.S. (4 Otto) 97, 98, 24 L. Ed. 32 (1876) (“[U]nless the plaintiff in error submit himself to the jurisdiction of the court below . . . , the cause [will] be left off the docket.”) (Emphasis added.); State v. Fettel, 210 Or. App. 404, 407, 150 P.3d 1076 (2007) (Oregon Rule of Appellate Procedure 8.05(3) has been held to place on the State the burden of making a prima facie showing that, more likely than not, defendant has absconded from jurisdiction or is secreting himself or herself within jurisdiction.).
Under the facts of this case, where the defendant appears to have absconded while on probation, something more than a mere allegation by the State in its brief that the defendant has failed to report to his probation officer is necessary to invoke the fugitive disentitlement doctrine. We hold that the burden is upon the State to raise the issue to the appellate court by filing a motion to dismiss the appeal alleging grounds that the defendant is a fugitive. In the absence of such a motion, the appeal should proceed normally. If the State files a motion and the appellate court determines that the State’s motion is sufficient to raise the issue, then in order to invoke the doctrine when the allegation is based on the defendant’s failure to comply with a reporting condition of probation, the appellate court must remand the matter to the district court for an evidentiary hearing on fugitive status. As in any probation violation hearing, the State must show by a preponderance of the evidence that the defendant has absconded. If the district court finds that the defendant has not absconded, the doctrine does not apply and the initial appeal to the Court of Appeals may proceed. If the finding is made that, more likely than not, the defendant has absconded, then the appellate court should review that finding to determine whether it is supported by substantial competent evidence. Once it has been determined by such evidence that the defendant is a fugitive, the doctrine applies and the appeal may then be dismissed. We note, however, that the decision to dismiss lies within the sound discretion of the appellate court and is subject to the same exceptions as our other doctrines precluding appellate review. See State v. Williams, 275 Kan. 284, Syl. ¶ 2, 64 P.3d 353 (2003) (exception to the general rule that a matter not presented to the lower court will not be considered on appeal applies when consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights).
The fugitive disentitlement doctrine has been recognized in Kansas for over 100 years. It remains a valid method of dismissing an appeal when a defendant has chosen to thwart the appellate process by absconding from the jurisdiction of the courts. In this case, however, the State has done no more than raise the possibility that the defendant is a fugitive in its brief. That allegation is an insufficient basis on which to deprive the defendant of his statutoiy right to an appeal. Therefore, the Court of Appeals’ decision is affirmed in part and reversed in part, and the case is remanded to the Court of Appeals with instructions for further proceedings consistent with this opinion. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an action by an insurance company against a hospital for money damages and a mandatory injunction to compel the hospital to permit the insurance company to review and copy the hospital records of the insurance company’s policyholders who have been patients in the hospital.
The third amended petition was challenged by a demurrer on several grounds, but was sustained by the trial court on only one ground — that the petition fails to state facts sufficient to constitute a cause of action “for any permanent injunction, mandatory or otherwise.” Appeal has been duly perfected from this order by the insurance company.
The third amended petition alleges that for many years prior to commencing this action, the Pyramid Life Insurance Company, a corporation (appellant), was engaged in writing health and accident insurance in Kansas. Between November 30, 1953, and the commencement of this action, many of the appellant’s policyholders received treatment and care in the Gleason Hospital, Inc., a corporation (appellee), for which they submitted claims under their policies to the appellant. These claims were paid in the usual course of business upon receipt of proof of loss forms supported by physicians’ statements and bills from the appellee. Each proof of loss form was accompanied by written authorizations on the part of the policyholder and his attending physician authorizing the appellee to permit the appellant or its representative to review the policyholder’s hospital record.
The third amended petition further alleges that in February, 1959, the appellant made a special audit of certain claims which had been paid by the appellant. These claims included charges for treatment and care in the appellee hospital. This audit disclosed the appellee had billed the appellant’s policyholders for certain charges and services “which had not been furnished the policyholders, which were not required and/or which were false and misleading and inconsistent with the medical records and histories prepared and maintained” by the appellee. (Exhibit A, attached and made a part of the petition, names twenty-one policyholders and explains the overcharges and payments.) As a result of such false and misleading statements the appellant had paid claims in the amount of $1,718.65, for which demand was made upon the appellee on July 13, 1959, but which the appellee refused to pay.
In view of the discovery of substantial fraudulent overcharges relating to the limited number of claims which were audited, it is alleged the appellant “has reason to believe and does believe and hereby alleges that a review of the records, charts and medical histories of other policyholders who have allegedly been treated or confined to Defendant Gleason Hospital, which review has been and continues to be denied Plaintiff by the Defendant, would disclose other, similar fraudulent overcharges, the exact amount of which is unknown to 'Plaintiff but is well known to Defendant.” (Emphasis added.)
The petition further alleges the appellant “has on various and sundry occasions submitted to the Defendant, its agents, servants and employees, verbal and written requests that Plaintiff’s representatives be permitted to inspect and review the medical records, charts and medical histories and/or to procure photostats or photocopies thereof, of those policyholders who have furnished written authorizations for inspection, as aforesaid, to the Defendant; that despite the furnishing of said written authorizations by the policyholders and the demand by the Plaintiff or Plaintiff’s representatives, Defendant has failed, neglected and refused to permit such inspection and review to be made, and/or has refused to permit such representatives to make photostats or photocopies, and Defendant continues to fail, neglect and refuse to permit such inspection, review and/or copying.”
In the prayer of the petition the appellant seeks judgment against the appellee for:
(1) A temporary injunction restraining and enjoining the appellee “pending the final determination of this action, from destroying, altering, secreting, obliterating or tampering with the hospital and medical records, charts and medical histories in possession” of the appellee bearing upon the treatment and care given the appellant’s policyholders, and the charges made therefor, concerning the following patients, “who now are or were at the time of treatment and/or confinement policyholders of” the appellant: (Eighty-three persons are named.)
(2) “Enjoining, restraining and forever debarring the Gleason Hospital, Inc., its agents, servants and employees, from preventing representatives of Plaintiff from inspection, reviewing and/or photocopying the hospital and medical charts, records and medical histories of those persons who now have, have had or may hereafter have claims for benefits pending against Plaintiff resulting from confinement and/or treatment in Gleason Hospital .where such persons have, in writing, duly authorized such inspection by Plaintiff or its representatives.”
(3) “A mandatory injunction ordering and directing Defendant, its agents, servants and employees, to furnish Plaintiff or its representatives, upon submission of written authorization therefor signed by the policyholder, permission to inspect and review the hospital and medical charts, records and medical histories relating to the policyholder who has executed such authorization; and/or ordering and directing Defendant to permit Plaintiff or its representatives, upon request, to make photostats or photocopies of any and all hospital and medical charts, records and medical histories of Plaintiff’s policyholders who now have, have had or may hereafter have claims pending against Plaintiff for charges resulting from confinement and/or treatment in said Gleason Hospital.”
(4) For money judgment against the appellee in the sum of $1,718.65, “and for such additional sum which may be found to be due and owing by said Defendant, by reason of any illegal, unauthorized, fraudulent or excessive claims and benefits paid to the Defendant or to Plaintiff's policyholders."
The prayer also seeks costs and requests “other and further proper relief."
To avoid misinterpretation of the issue presently before the court, it is important to note the order of the trial court in ruling upon the demurrer to the third amended petition left standing the appellant’s cause of action for money damages in the amount of $1,718.65.
The allegations in the third amended petition upon which a mandatory injunction is sought may be clarified somewhat by disclosing the absence of certain elements or features from such allegations. Nowhere is it alleged that any patient of the appellee hospital, or any authorized representative on his behalf, or the appellant insurance company, ever requested or was ever refused an inspection or a copy of the hospital record at the time of presentation and settlement of his insurance claim. Furthermore, it is not alleged that the appellant overpaid the claims of all or any of the eighty-three persons (named only in the prayer of the petition, paragraph [1]) through the fault or wrongdoing of the appellee, and there is no prayer for a money judgment in any amount as to these eighty-three alleged policyholder patients.
The third amended petition simply boils down to a suit for recovery of a specific sum of money, coupled with a demand for a bill of discovery in the guise of a permanent mandatory injunction, compelling the appellee hospital to yield to representatives of the appellant the right to enter upon the premises of the appellee at any time and under any circumstances, and to inspect, review, and/or make photostatic copies of anything and everything relating to any patient of the appellee who was or had been a policyholder of the appellant.
In our code of civil procedure privileged communications are recognized in G. S. 1949, 60-2805. Under subparagraph Sixth, a physician or surgeon is incompetent to testify “concerning any communication made to him by his patient with reference to any physical or supposed physical disease, defect, or injury, or the time, manner or circumstances under which the ailment was incurred, or concerning any knowledge obtained by a personal examination of any such patient, without the consent of the patient." The disqualification is imposed only upon the physician or surgeon, and not for his benefit or for the benefit of the public. It is merely a privilege to the patient and may be waived. The physician cannot claim it if the patient abandons the privilege. Therefore, the patient may waive his privilege by contract in advance of litigation. (Insurance Co. v. Brubaker, 78 Kan. 146, 96 Pac. 62; Flack v. Brewster, 107 Kan. 63, 190 Pac. 616; Doty v. Crystal Ice & Fuel Co., 118 Kan. 323, 235 Pac. 96; and State v. Cofer, 187 Kan. 82, 353 P. 2d 795.)
Upon the foregoing premise the appellant develops the following argument. The doctor-patient relationship is a fiduciary one and it is incumbent upon the doctor to reveal all pertinent information to his patient. (Natanson v. Kline, 186 Kan. 393, 350 P. 2d 1093.) The same is said to be true of the hospital-patient relationship. (Wohlgemuth v. Meyer [Cal., 1956], 293 P. 2d 816.) Hospital records are kept for the benefit of the patient, the hospital and the physician, and as an essential part of the contractual relationship between the hospital and the patient, the patient’s interest and right in his hospital records is said to be superior to that of either the hospital or the physician. In both cases it is said the fiduciary relationship and the right of the patient to a full and frank disclosure of all the facts relating to his physical condition vests the patient with the exclusive control over the review of his medical records by third parties.
The appellant relies for theory upon the topic of Discovery treated in Corpus Juris Secundum as follows:
“Medical records of a patient are subject to inspection on the demand of the patient himself; and, where the action is by the former patient against the hospital, all hospital records involving diagnosis, treatment, and prognosis of the patient should be produced lor plaintiff’s discovery and inspection.” (27 C. J. S„ Discovery, § 72, p. 232.)
“Hospital records are also privileged and not subject to discovery, except where there is a waiver of the privilege, although, under or apart from statutes so providing, hospital records have also been held to be subject to the provisions relating to inspection.” (27 C. J. S., Discovery, § 72, p. 231.)
The appellant also relies upon cases from foreign jurisdictions in which medical records of an individual patient were necessary to litigation involving such patient. (Hoyt v. Cornwell Hospital [1938]), 6 N.Y.S. 2d 1014; In re Greenberg's Estate [1949], 89 N. Y. S. 2d 807; Application of Weiss [1955], 147 N. Y. S. 2d 455; and Wallace v. University Hospitals of Cleveland [Ohio, 1959], 164 N. E. 2d 917.)
The appellant argues if a patient has the right to inspect his hospital records, then the patient must also have the authority to delegate this right of inspection to third parties for any legitimate purpose. Such a delegation to the patient’s insurer for the purpose of investigating insurance claims not only serves a legitimate purpose, but is an absolute necessity in the conduct of the hospital insurance business. It is said a hospital which denies the insurer the opportunity to check hospital records either in advance of settlement or in connection with a post-settlement audit of claims, interferes with and can irreparably injure the business of the insurer, by forcing it' either to deny the claims and thereby lose the renewal business of its policyholders and subject itself to lawsuits, or to pay all claims submitted without regard to the effect of such payments upon its financial solvency. (Kansas authorities are cited to show that insurance is a business affected with a public interest.)
The appellant relies upon federal decisions and particularly Pyramid Life Ins. Co. v. Masonic Hosp. Ass’n of Payne Co., (Okla.) 191 F. Supp. 51 in which Judge Stephen S. Chandler filed a memorandum opinion on February 8, 1961. On facts which appear for all practical purposes identical to those alleged in the third amended petition herein, the Pyramid Life Insurance Company was successful. The court issued a mandatory injunction, but the court found the plaintiff was denied access to the records prior to litigation and was accordingly entitled to discovery.
No Kansas authorities, except as heretofore noted, are relied upon by the appellant to sustain its position. We need not determine hypothetical cases in which a former patient, as an individual, brings an action against a hospital and seeks a copy of or information from the medical records of the hospital concerning his case. That is not the situation confronting us.
The appellant either seeks to circumvent or fails to recognize that a bill of discovery is not authorized by the Kansas code of civil procedure or in the practice of the Kansas courts. Even in jurisdictions where discovery is one of the tools which may be employed in the development of a lawsuit, such as in the federal courts, the remedy does not constitute an unrestricted fishing license.
In 27 C. J. S., Discovery, § 2, pp. 9 and 10, it is said:
“Nevertheless, the power to grant discovery must be exercised within very definite limits. A prime essential to the allowance of discovery is that it be in aid of a known case. In other words the discovery sought must be incidental to some relief which a court has the right to grant, for a court of equity will not grant discovery merely to gratify curiosity, or to enable a party to engage in a fishing expedition in the hope of netting a case or defense, or to pry into the case of his adversary. The court is bound to protect defendant against undue inquisition into his affairs . . . .”
Similarly in 17 Am. Jur., Discovery and Inspection, § 10, pp. 14 and 15, it is said:
“The right to require a disclosure is generally limited to instances where there is a real cause of action pending or imminent, and the court is entitled to the information in aid of proper judicial proceedings. The applicant must show a cause of action or defense existing in aid of which discovery is sought, and disclosure cannot be required if the action or the defense itself cannot be maintained. In other words, a party is not entitled to a discovery to enable him to ascertain whether he has a cause of action.”
If a party has a cause of action the Kansas code of civil procedure provides an adequate remedy at law. G. S. 1949, 60-2850, provides:
“Either party or his attorney may demand of the adverse party an inspection and copy, or permission to take a copy of a book, paper or document in his possession or under his control containing evidence relating to the merits of the action, or defense therein. Such demand shall be in writing, specifying the book, paper or document with sufficient particularity to enable the other party to distinguish it; and if compliance with the demand within four days be refused, the court or judge, on motion and notice to the adverse party, may in their discretion order the adverse party to give to the other within a specified time an inspection and copy or permission to take a copy of such book, paper or document; and on failure to comply with such order the court may exclude the paper or document from being given in evidence, or if wanted as evidence by the party applying may direct the jury to presume it to be such as the party by affidavit alleges it to be. This section is not to be construed to prevent a party from compelling another to produce any book, paper or document when he is examined as a witness.”
The relief which the trial court denied the appellant in ruling upon the demurrer to the third amended petition was correctly denominated a mandatory injunction — it was seeking to compel the performance of certain acts by the appellee hospital and its staff. Courts generally are reluctant to render a decree for a mandatory injunction, and a party asking for it must be clearly entitled to such decree before it will be rendered. (A. T. & S. F. Rld. Co. v. Long, 46 Kan. 701, 27 Pac. 182; Cave v. Henley, 125 Kan. 214, 264 Pac. 25; and State, ex rel., v. Ross, 159 Kan. 199, 152 P. 2d 675.)
In our opinion the trial court did not err in sustaining the demurrer to the third amended petition as to the cause of action seeking a mandatory injunction. In effect, it is an attempt by the appellant to discover whether it has a cause of action against the appellee on old insurance claims that have long been paid, and it does not concern the processing of present or future claims as suggested by the appellant in its argument or in its prayer for relief.
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The opinion of the court was delivered by
Parker,. C. J.:
This is the second appearance in this court of a divorce case. (See Crosby v. Crosby, 186 Kan. 420, 350 P. 2d 796.)
In the case cited the trial court granted the husband a divorce from the wife, denied the wife a divorce, and rendered judgment making provision for permanent alimony, division of property, and allowance of attorneys’ fees. In such appeal this court reversed the judgment granting the husband a divorce, affirmed the judg ment denying the wife a divorce, and in connection with the other rulings just mentioned said:
“In conclusion it should be stated that appellant also appeals from the judgment entered on May 26, 1959, making provision for permanent alimony, division of property and final allowance of attorneys’ fees. These rulings, as we read the record, were all made by the trial court subject to the outcome of the evidence upon the grounds for divorce. In other words, when made, they were based upon the premise the appellee (husband) was entitled to a divorce for the fault of the appellant (wife). Under this court’s decision, as heretofore announced, the parties now find themselves in a situation where neither is entitled to a divorce and the trial court is placed in a position where its orders, with respect to the matters now under consideration, should be reconsidered and determined on that basis. Under these circumstances we believe all such orders should be set aside and that, after complying with this court’s decision directing a reversal of the divorce decree, the trial court should make such further and additional orders in connection with such matters, including the allowance of reasonable attorneys’ fees, as it may deem necessary and proper, under the then existing conditions and circumstances.” (p. 426.)
And held:
“The judgment effective April 14, 1959, granting appellee a divorce from appellant is reversed with directions to set it aside; the judgment, effective as of the same date, denying appellant a divorce on grounds set forth in her cross-petition is affirmed; and the orders made by the court in its judgment, effective May 26, 1959, are set aside with directions to proceed as heretofore indicated.” (p. 426.)
In conformity with our disposition of the first appeal the trial court retried the case and rendered a judgment which, so far as here pertinent, reads:
“The judgment of this court, rendered April 14, 1959, granting divorce to plaintiff is hereby set aside to conform with the mandate of the Supreme Court.
“The Court is advised that items two and three of the order of May 26, 1959, have already been complied with and therefore cannot be set aside.
“There is no evidence before this court to show that the post-nuptial agreement of November 15, 1955 was not ‘fairly and understandingly made’. The agreement settled the property rights of the parties. It is not against public policy and therefore enforceable. (Perkins v. Perkins, 154 Kan. 73 l. c. 75-76.)
“The post-nuptial agreement is valid. The division of property is as provided by that agreement. The parties shall retain such personal property, not included in the agreement, as they presently possess. Any personal property remaining in storage shall be divided equally between the parties by their mutual agreement.
“Defendant shall not hereafter incur debts chargeable to plaintiff except by his specific consent.
“Further complying with the mandate of the Supreme Court, plaintiff is ordered to pay defendant’s attorneys an additional fee of $2,000.00.”
Following rendition of the foregoing judgment the defendant (wife) perfected the instant appeal wherein she states, and the plaintiff (husband) inferentially, if not expressly, agrees, the appellate issues now involved are:
L Is the postnuptial agreement, executed November 16, 1955, a valid and enforceable agreement?
2. Did the trial court err in failing to award more than an additional $2,000.00 as attorneys’ fees for appellant’s attorneys?
The opinion in the first case discloses the factual picture necessary to enable readers of this opinion to have a proper understanding of what this case is about. Indeed, it may be said that insofar as the above stated appellate issues are concerned, the evidence in the second trial was substantially, if not identically, the same as in the former case. For that reason the lengthy statement of facts appearing in the first opinion, which we now incorporate in this opinion by reference, will, when implemented by additional facts, not directly involved in the first opinion, suffice to supply the factual background essential to the disposition of the appellate issues here involved.
The supplementary facts required to complete the factual picture, all of which can be said to be established by evidence of record which is uncontroverted and therefore must be considered as decisive of the rights of the parties, may be stated thus:
The postnuptial agreement, found by the trial court to be valid in settling the property rights of the parties, was executed at a time when the appellee believed the appellant to be a very sick and mentally ill person suffering from an illness which had been diagnosed by physicians specializing in the practice of psychiatry as hyper manic-depressive psychosis. Further facts as to the extent of his knowledge regarding her condition at that time are set forth in the first opinion and need not be repeated. Such agreement is somewhat lengthy. Nevertheless since it is highly important to the disposition of the appellate issues involved we believe it advisable to set it out in this opinion in its entirety. Omitting the title and signatures of the parties it reads:
“This agreement, made and entered into this 16th day of November, 1955, by and between Thomas Mayo Crosby, of Topeka, Shawnee County, Kansas, Party of the First Part, and Marjorie Rosen Crosby, who is now wife of said Party of the First Part, of Topeka, Shawnee County, Kansas, Party of the Second Part.
“Witnesseth: That
“Whereas, there is now pending in the District Court of Shawnee County, Kansas, Case No. 77,413, an action for divorce filed by said Party of the Second Part against said Party of the First Part herein, and
“Whereas, said Party of the First Part has filed a cross-petition for divorce against said Party of the Second Part, herein, and
“Whereas, said Parties have determined to dismiss their respective actions for divorce against each other in Case No. 77,413, above referred to.
“Now Therefore, the said parties deem it expedient and desirable to mutually enter into a Post Nuptial Agreement for the purpose of settling all matters pertaining to their property and marriage rights, in the event said parties, subsequent to the date of this agreement, separate, become divorced or discontinue living together as husband and wife.
“It is Hereby Understood and Mutually Agreed by and between the parties to this agreement, that in the event the said parties, subsequent to the execution of this agreement, separate, become divorced, or discontinue or cease to five together as husband and wife, that then and in that event said Party of the Second Part shall receive as her sole and separate estate the entire income from a trust, to be established, managed and maintained by the Trust Department of the National Bank of Topeka, to be known as the ‘Marjorie Rosen Crosby and Thomas Mayo Crosby Trust’, consisting of the trust property as shown on Schedule A and Schedule B attached hereto and made a part hereof, and subject to the provisions hereinafter made.
“It is Further Understood and Agreed that the said parties hereto shall do any and all acts necessary to properly transfer the above described property to the Trust Department of the National Bank of Topeka, as Trustee of said property, during the term of this trust, which trust shall be revocable only upon the mutual consent of both parties in writing, except as hereinafter provided.
“It Being Further Understood and Agreed that die said Trustee shall have full and complete power, control and authority over said trust property except that said Trustee may with the joint consent in writing of the parties hereto, sell and reinvest said trust properties for the best interest of said trust.
“It is Further Agreed that said Trustee shall, during the tenure of said trust, deliver to said Party of the Second Part, quarterly, all of the income received by said Trustee from said trust estate; provided, however, that in the event the parties hereto are divorced and Second Party shall re-marry, then the Trustee shall pay one-half of the income received from said trust to Party of the Second Part and one-half of the income received from said trust to Party of the First Part, so long as either of said parties shall live. On the death of the Party of the Second Part, if Party of the First Part is living, then the trustee shall pay one-half of the income from said trust, share and share alike, to the children of the parties hereto, Marjorie Crosby Miville and Marianne Crosby, and continue to pay the other one-half of the income to Party of the First Part. If Party of the First Part shall die and Party of the Second Part shall have remarried and be still living then the Trustee shall distribute one-half of the income from said trust to Party of the Second Part, and one-half of the income to the children of the parties hereto, Marjorie Crosby Miville, and Marianne Crosby. Income as used herein shall be income available after payment of necessary expenses incident to administration of the trust.
“Upon the death of the last survivor of the parties hereto, this trust shall terminate and the Trustee shall distribute the entire corpus of the Trust, together with any accumulated income therefrom remaining in its hands after the payment of necessary expenses, to the children of the parties hereto, Marjorie Crosby Miville and Marianne Crosby, share and share alike, or if either of them be deceased and leave children surviving them, the surviving child or children of the deceased parent shall take the share their parent would have taken had she been living.
"The principal of this trust shall remain intact, except that should Party of the Second Part require extended hospitalization and the income she received from said trust shall be insufficient to pay the expense of her hospitalization, then the Trustee is authorized, empowered and directed to use such portion of the principal of said trust as may be necessary to provide the reasonable expenses of such extended hospitalization.
“It is Further Mutually Agreed that in the event Party of the First Part, subsequent to the date of this agreement, divorces said Party of the Second Part, or dies, the said Party of the Second Part, unless she remarries, shall receive, in addition to the benefit of the income of the Trust, as herein provided, an additional $100.00 per month from said Party of the First Part, until said Party of the Second Part attains the age of fifty-five (55) years, at which time said payment shall cease.
“It is Further Stipulated and Agreed by and between the said parties hereto that, except as herein provided, the said Thomas Mayo Crosby is to have and receive as his sole and separate estate free and clear of all claims of said Marjorie Rosen Crosby, all of the real and personal property which he had and possessed before the date of this settlement, with the exception of the property described in Schedule A and Schedule B, which he relinquished, subject to the terms herein, to said Party of the Second Part, in consideration of her relinquishing all of her right, title and interest in and to all of the real and personal property which said Party of the First Part possessed at the date of this agreement. Said real estate consisting of the following described property.
“Residence at 1545 Stratford Rd., Topeka, Kansas
“2 Kinney Buildings
“Part Interest in Parking Lot — 608 Jackson
“Nightingale Building
“This agreement and conveyance is mutually intended to be, and is hereby expressly made and intended by each of the parties hereto, as a mutual release, agreement, relinquishment and conveyance of all right, title and interest to all of the property, both personal and real, of the other, respectively, and it is the intention of the parties hereto to mutually release and waive all benefits of the Laws of the State of Kansas relating to husband and wife, dower and-homestead, etc., except as herein provided.
“It Being Further Mutually Agreed that in the event a divorce shall hereafter be granted in any court, to either of the above parties, this settlement shall by the court granting said decree, become a part of said decree, and be incorporated in the same, and said settlement shall be binding on the heirs, executors, administrators, and assigns of both of said parties, and said settlement is not to be altered, modified, changed or varied without the written consent of both parties.
“It is Mutually Agreed that upon the death of said Party of the Second Part, this trust shall terminate and the property then remaining in the hands of said Trustee shall be paid over, delivered and assigned, share and share alike, to Mrs. Marjorie Crosby Miville, and Marianne Crosby, if living, and if not living, to their surviving issue, if any, otherwise to the survivor. Provided further, that said trust fund shall not, under any circumstances, be paid over or assigned to said parties until the youngest of said parties has attained the age of twenty-five years.
“It Being Further Mutually Agreed that in the event the said parties continue to five together from the date of this agreement during the rest of their natural lives as husband and wife, and until such time as one or the other may die, then and in that event this agreement shall be of no effect whatsoever, and said parties shall be entitled to inherit one from the other, the same as though this agreement had never been executed.
“This agreement shall be binding on the parties hereto, their heirs, executors, administrators, successors and assigns.
“To faithful compliance of the above and foregoing, the parties hereto have executed this agreement the day and year first above written.
“Schedule A
Shares At
Kansas Power & Light 520 24.00 12.480.00
A. T. & T 68 183% 12,503.84
“Schedule B
A. T. & T 64 183% 11.768.00
Santa Fe Pref. 148 60S 8.917.00
Kansas Power & Light 480 24.00 11.520.00
J. C. Penney 39 93% 3,656.25
U. S. Steel 174 51% 8,982.75
Van Raalte 52 38.00 1.976.00
Stnd. Oil Cal. 82 7,328.75.’
On the date of the execution of the agreement (November 16, 1955) all shares of stock listed in Schedule “B” of that instrument were owned by the appellant who had received them, from time to time, from the appellee’s mother as gifts in appreciation for appellant’s services in caring for the mother during an extended illness. The shares of stock described in Schedule “A” stood in the name of the appellee. The value, at that time, of all shares of stock encumbered under the agreement, is conceded to be as listed in the two schedules.
On May 5, 1959, appellee, with reference to an appraisal made on January 23, 1959, of the real and personal property of both appellant and appellee, testified that such appraisal “setting forth that my property interests are worth $485,008.36 is true and correct to the best of my knowledge.” In all fairness it should be stated this appraisement included the appellant’s shares of stock as encumbered by Schedule “B” of the 1955 agreement at a valuation of $69,303.25. It also included other items of personal property, then in her possession, which had been accumulated during the marriage, the value of which was appraised at approximately $5,800.00. By the same token it should be said that title to all other real and personal property listed in the appraisal, the value of which was appraised at approximately $410,000.00, stood in the name of the appellee, who had acquired some of it by inheritance and the remainder during the course of the marriage. Included in this remainder was $45,000.00 received and personally retained by the appellee when he sold the family home, the appellant joining in the conveyance, within fifteen months after the execution of the postnuptial agreement and subsequent reconciliation of the parties.
With further reference to the trust agreement it is interesting, and quite important, to note that appellee, in procuring the execution of that instrument, was able to induce appellant to encumber practically all of the property owned by her, then amounting to approximately $53,000.00, whereas out of the property standing in his name and valued at $410,000.00, the only contribution made by him to the trust, and encumbered under its terms, was property valued at approximately $25,000.00.
Having related the supplementary facts required for disposition of the first appellate issue involved, we now refer briefly to the undisputed evidence relating to the second, noting as we do so that, since the appellee made no attempt to refute it, this evidence must also be regarded as uncontroverted.
In connection with the second issue to the effect the trial court erred in failing to award more than the additional $2,000.00 attorneys’ fees allowed after the first case was reversed and sent back for the trial court’s further review, the record discloses that, throughout the course of this litigation, five well-recognized and competent attorneys of Topeka, i. e., Lester M. Goodell, Marlin S. Casey, Gerald L. Goodell, Harold Doherty, and James Benfer, were employed by appellant and actively participated in the defense of the divorce action brought against her by the appellee. It also contains a state ment showing the extent of their activities in this respect, as well as a photostat copy of the appearance docket of the case in the Shawnee County district court which contains approximately one hundred entiles. Without detailing the contents of the statement or the appearance docket it may be stated these instruments malee it affirmatively appear this has been a long-standing, hotly contested and tedious case, requiring the preparation of numerous motions and pleadings; extended research; consultations and conferences, both preparatory to and during the trial of the case; and the expenditure of further indescribable time and effort on the part of all the attorneys involved in the case. • Indeed the evidence, no part of which has ever been contradicted or denied, is that, in carrying on appellant’s case in the district court, five separate attorneys have participated in rendering legal services in her behalf, in the performance of which they have, in the aggregate, spent in excess of six hundred hours time.
The record further discloses evidence by four outstanding and experienced attorneys of Topeka, two being interested and two disinterested in the outcome of the case, that the reasonable value of the legal services performed by appellant’s attorneys, in her behalf from the commencement of the action to the present time in the district court, would be all the way from $12,000.00 to $16,500.00. In this connection it must be remembered that these estimates as to the reasonable value of the services of appellant’s counsel are undenied and uncontiadicted, and that in no stage of the proceedings has appellee seen fit to adduce, or attempted to adduce, evidence to establish that a reasonable fee for such services would be less than that estimated by the witnesses to whom we have just referred.
With the essential facts established, especially since we have been cited to, and our own research discloses, no case of this court so similar from the standpoint of facts and circumstances involved it could be regarded as a controlling precedent, nothing would be gained by laboring our decisions or the reasons on which the six Justices of this Court participating in this opinion have unanimously decided this case must be reversed. Without doing so it suffices to say:
1. That mindful of the established rule the validity of a postnuptial agreement will be upheld where it is fairly and understandingly made, is just and equitable in its provisions, and is not obtained by fraud and overreaching (See, e. g., In re Estate of Beeler, 175 Kan. 190, 193, 262 P. 2d 939; Fincham v. Fincham, 160 Kan. 683, 687, 165 P. 2d 209; Perkins v. Perkins, 154 Kan. 73, 76, 114 P. 2d 804), this court, under all the facts and circumstances of this case, particularly those relating to the mental status of the appellant prior to, and on the date of, the execution of the heretofore quoted postnuptial agreement, as well as those disclosing the disproportionate contributions of property made by the parties to the trust created by its terms, is convinced that at the time of the execution of such agreement it was not fairly and understandingly made, was not just and equitable in its provisions, and, of a certainty, was obtained by overreaching on the part of the appellee at a time when, according to his own verified statements and admissions, he knew appellant was a very sick and mentally ill person. Moreover, having held in Crosby v. Crosby, 425, supra, “that the uncontradicted evidence in this case relating to appellant’s mental status on all dates in question was sufficient to preclude appellee from obtaining a divorce from appellant on the ground of gross neglect of duty.” (emphasis supplied.), we are fully satisfied that her mental status on November 16, 1955, one of the dates then in question, was of such nature that she could not, and hence did not, fairly and understandingly malee the heretofore quoted postnuptial agreement on the date of its execution. It follows such agreement cannot be upheld and that the trial court erred in holding it was binding upon the parties, settled their property rights and therefore warranted it in making a division of their property in substantial accord with its terms.
2. That fully cognizant of the rule (see Bennett v. Bennett, 175 Kan. 692, 698, 266 P. 2d 1021), the allowance of fees to a wife’s attorney for an efficient preparation of her case rests largely in the discretion of the trial court which will not be disturbed on appellate review when supported by competent testimony, we are nevertheless convinced that in the face of (1) all the facts and circumstances disclosed in Crosby v. Crosby, supra, and in this opinion; (2) the direction of this Court in Crosby v. Crosby, supra, that a further order should be made in the cause allowing reasonable attorneys’ fees; (3) the uncontroverted evidence, as heretofore set forth, relating to the reasonable value of services performed by appellant’s attorneys in the court below; and (4) the failure of appellee to produce any evidence whatsoever contradicting the evidence regarding the reasonable value of such services, the trial court abused its judicial discretion in limiting its order fixing an additional fee for services performed by appellant’s attorneys to an allowance of $2,000.00.
Based on what has been heretofore stated and held the judgment holding the postnuptial agreement of November 16, 1955, to be valid and determinative of the property rights of the parties is reversed; the order and judgment making a division of the property of the parties, based on the provisions of the agreement, is reversed; and the order limiting appellant’s attorneys to the sum of $2,000.00, as an additional fee for services, is reversed, with directions to the district court of Shawnee County to give further consideration, in accord with the views herein expressed, to an equitable division and disposition of the property of the parties and to the allowance of reasonable attorneys’ fees for services performed by appellant’s attorneys in the defense of the action in district court.
It is so ordered.
Price, J., not participating. | [
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The opinion of the court was delivered by
Price, J.:
The only question in this case is whether the verdict of the jury is so grossly inadequate as to compel the granting of a new trial — and, if so, should the new trial be limited to the question of damages only — or be granted generally as to all issues.
For reasons hereafter stated, the court is of the opinion that fundamental justice requires the granting of a new trial — and that it be generally as to all issues.
The action was to recover damages for severe and permanent injuries sustained by plaintiff as the result of burns and electrical shock when the television antenna and mast, which he was helping to install, came in contact with defendant company’s high-voltage transmission line on September 26, 1954. Recovery was sought in the amount of $150,750.
Defendant filed a demurrer to the petition on the grounds it failed to state facts sufficient to constitute a cause of action, and that it disclosed contributory negligence as a matter of law. The demurrer was overruled, and defendant appealed. The ruling was affirmed (Henderson v. Kansas Power & Light Co., 181 Kan. 625, 313 P. 2d 257).
Issues were joined and the case went to trial. At the conclusion of plaintiff’s evidence the defendant’s demurrer thereto was sustained on the grounds it was insufficient to establish that any of the alleged acts on the part of defendant were in fact negligent and that it did not establish that such acts were the cause of plaintiff’s injuries. Plaintiff appealed. The ruling was reversed (Henderson v. Kansas Power & Light Co., 184 Kan. 691, 339 P. 2d 702).
The allegations of the pleadings, and the evidence as to the alleged negligence on the part of defendant and the circumstances of the incident, introduced at the first trial, are summarized, respectively, in our two former opinions and will not be repeated.
At the conclusion of the second trial the jury returned a general verdict in favor of plaintiff in the sum of $5,000, and made special findings as follow:
“1. Do you find from the evidence that defendant was guilty of negligence?
“A. Yes.
“2. If your answer to question number one was in the affirmative then state of what such negligence consisted?
“A. By maintaining electric power lines over private property.
“3. Do you find the plaintiff guilty of negligence that contributed to his injuries?
“A. No.
“4. If your answer to question three was in the affirmative then state of what said negligence consisted?
“A.
“5. Did the plaintiff, Walter Henderson, see and know of the presence of defendant’s transmission lines at 609 Lake Street before the accident?
“A. Yes.
“6. Do you find that the transmission lines of the defendant were located and maintained at a proper height?
“A. Yes, but over private property.
“7. Do you find that the defendant’s lines were insulated?
“A. Bare wire but insulated by air.
“8. Do you find from the evidence that the defendant’s lines cross over private property?
“A. Yes.
“9. If you answer the above in the affirmative did the owner of said private property:
“(a) Know that said lines cross his property?
“A. Yes.
“(b) Consent to the maintenance of said lines across his property?
“A. No.”
Defendant filed a motion for judgment notwithstanding the verdict.
Plaintiff filed a motion for a new trial generally, and one day later filed a motion for a new trial limited to the question of damages only.
All three motions were overruled, and judgment was entered on the verdict and special findings. Plaintiff has appealed from the orders overruling his motions for a new trial. Defendant has not cross-appealed.
Although several matters are discussed in the brief, counsel for plaintiff, upon oral argument of this appeal, conceded that he was making no complaint as to rulings on evidence or as to instructions given or refused. His sole contention is that the verdict in the sum of $5,000 is, under the undisputed evidence relating to the severity and extent of plaintiff’s personal injuries, so inadequate that in the very nature of things it must be deemed to have been given under the influence of passion and prejudice, and thus compels the granting of a new trial. Putting it very bluntly, it is contended that if plaintiff is entitled to recover anything — and the jury found that he is — he is entitled to recover more than $5,000, and, all questions of negligence having been settled by the jury’s findings — the new trial should be limited solely to the question of damages.
Understanding of our decision requires a rather detailed statement as to plaintiff’s injuries.
The events of the tragic Sunday afternoon in question, September 26, 1954, have been summarized in the last-mentioned previous opinion of this court, above. Immediately following the explosion several persons in the neighborhood saw plaintiff and his companions lying on the ground. The grass and their clothing, as well as their bodies, were on fire, and they were “all black looking.” There was a sickening odor of burning flesh. Plaintiff was the only one of the three men who was moving, and he was “moaning and jerking as if in a convulsion.” He was taken to Stormont-Vail Hospital in Topeka and was placed, screaming and writhing, in a perambulator and fell off of it to the floor. His mouth was frothy and parts of his clothing were entirely burned, exposing the raw, red flesh burns on his body. Parts of his flesh were described as being “burned to a crisp,” and his eyes appeared to be “sticking out of his head.”
In the emergency room at the hospital he was given intravenous anesthetic because “he was so wild when he came in they couldn’t control him.” He also was given plasma and oxygen by an anesthesia machine because of respiratory paralysis, being unable to breathe for himself. He had severe bums on his entire face, head, both arms, with burns from the fingertips to the shoulders, as well as severe burns on his chest, back and legs. On the bottom of his feet was a large dark area which was charred completely. He was removed from the emergency room to surgery where his clothing could be completely removed and as much destroyed tissue as could be removed at that time was removed. Pressure Vaseline gauze dressings were applied. He was described as appearing to have third degree burns over a large portion of his body, and the attending physicians “thought he was actually going to die at that time.” He lost considerable fluid, his blood pressure went down to a low level, and he was given large quantities of intravenous glucose and plasma, and some blood. Two days later, and while still unconscious, he was removed to Winter Veterans Hospital in Topeka. His whole body felt “as if he was on fire.” The doctors continued to give him blood plasma and glucose intravenously.
About ten days later he was transferred by ambulance to the Veterans Hospital at Kansas City, where he was taken into surgery and all dressings were removed. He had first and second degree bums involving both arms and hands; first, second and third degree burns of the back and parts of his chest; also first, second and third degree bums of both feet, primarily at the heels, and also of the toes of his left foot. Later, dead tissue was removed from his body and he was completely bandaged so that “irrigating” could be accomplished by means of a salt water solution injected through catheters, all of which was very painful to the extent that he was quieted only through sedation. He could not turn himself over in bed; was completely helpless and had to be fed by others. Later, skin grafts were made — each time under a general anesthesia. It was necessary to amputate one of his toes. Skin grafts were applied to areas of both heels, back and left side of thorax; also to his left side, left shoulder, left side of neck, behind one ear, and to both hands and arms.
By December, 1954, plaintiff was able to get out of bed for the first time, but was so weak he could stay up for only forty-five minutes. He had no control over his balance and nurses had to assist him to walk. He still had open sores and the tissue on his instep turned blue and coinmeñced tó separate. All'told, he had eight or nine general anesthesias and underwent seven different operations. Prior to Christmas, 1954, he was released from the Kansas City hospital to go home on leave. While at home he became nauseated and sick, and his Topeka family doctor was called. It was found that he had yellow jaundice which, in the opinion of the doctor, was a result of “reaction” to the blood transfusions. He was returned to the Kansas City hospital and ordered back to bed for six weeks.
At the time of the accident in question plaintiff was thirty-three years of age and was employed by the City Water Department of Topeka at a salary of $255 per month. He returned to work at the same job about March 1, 1955, having been incapacitated for a little over five months. Since that date he has received salary increases amounting to $70 per month.
Immediately prior to the last trial of this case, which was held in April, 1960, plaintiff was examined by his Topeka doctor. That examination disclosed that at that time plaintiff had a scar tissue which forms a webb under his arm and prevents him from lifting the arm higher than shoulder level. He was unable to do any overhead work. He had a scarring of the left angle of the jaw bone which interfered with his ability to open and close his mouth. His left ear was bound to his head by scar tissue, and he had sustained a loss of fifty per cent of the motion of his left arm. There were large scars on his left chest and the entire left side of his back. A scar on his right forearm extending down to the thumb was tender and interfered with the motion of the thumb and hand. The scar resulting from the amputation of one of his toes was tender and interfered with his walking. There was a tenderness in the upper right quadrant over the liver region which, in the doctor’s opinion, meant that there was still activity of disease of the liver-resulting from the yellow jaundice following the many blood transfusions, and further indicated permanent liver damage. The examination also disclosed extreme tenderness on many parts of his body as the result of scars, and further disclosed definite reactions of parts of the body to changes in weather temperatures because of a lack of normal blood supply in the skin where grafts had been made. As a result of this examination the doctor gave him a rating of forty to fifty per cent total permanent disability.
Photographs of plaintiff, some in color, were taken while he was in the hospitals. They were introduced in evidence and are included in the record in this appeal. They speak for themselves!
The undisputed evidence is that plaintiff’s local medical bills totalled $287.80, and that he received a hospital bill from the Veterans Administration totalling $2,906.
In his brief plaintiff states that from the evidence and entire record it is quite clear the jury dealt candidly with the evidence in finding negligence of defendant and the absence of contributory negligence on his part, but that it is equally clear it was influenced by prejudice in awarding damages. He thus places himself in the unique position of arguing that as to the amount of damages the jury was prejudiced in favor of defendant, a large corporation — a very novel situation in a case of this kind, to say the least, for ordinarily in such cases the complaint is by a defendant that the verdict is excessive.
In considering the question presented, several elementary and firmly-established rules are to be kept in mind. One is that ordinarily the granting or denial of a new trial rests in the sound discretion of the trial court and a ruling thereon will not be disturbed, absent a showing of abuse of discretion or other manifest error. Another is that until the contrary is shown, a jury is presumed to have acted fairly, reasonably, intelligently and in harmony with the evidence. Still another is that the same yardstick must be applied where the claim is that a verdict is inadequate as in a case where a verdict is claimed to be excessive, and before a new trial will be granted because of the size of a verdict it must appear to be so excessive or inadequate, as the case may be, as to have been given under the influence of passion and prejudice. A still further rule is that a new trial can be granted on one of several issues, such as plaintiff seeks here — on the question of damages only (G. S. 1949, 60-3004). It is equally well settled that in the determination of matters of this kind, involving personal injuries, there is no precise formula by which courts can be guided, and that each case must largely be governed by its own facts as established by the evidence.
Ry the provisions of § 307 of our early code of civil procedure (General. Statutes 1901, §4755) a new trial could not be granted on account of the inadequacy of damages in an action for an injury to the person. In discussing the effect of such provision, it was said in Railway Co. v. O’Neill, 68 Kan. 252, 74 Pac. 1105, (1904):
“. . . The rule may be hard, and in some cases may be productive of injustice, but that is a consideration to be addressed to the lawmakers and not to the law interpreters.” (pp. 256, 257.)
That provision was omitted in the 1909 revision of the code, and, in commenting on such fact, it was said in Sundgren v. Stevens, 86 Kan. 154, 119 Pac. 322, 39 L. R. A. (NS) 487, (1911), in which this court ordered a new trial on the ground of inadequacy of damages:
“The fact that the provision of the former code forbidding a new trial for smallness of damages was omitted from the present civil code is an indication that the legislature deemed inadequacy a proper ground for a new trial, . . .” (p. 161.)
The general rule is, in the absence of a statute to the contrary, that inadequacy of damages constitutes a ground for the granting of a new trial when a verdict is so inadequate as to indicate passion and prejudice. (66 C. J. S., New Trial, § 77, p. 252; 15 Am. Jur., Damages, § 231, p. 663; 39 Am. Jur., New Trial, §§ 145, 147, pp. 151,153.) See also the annotation “Damages — Adequacy—Personal Injuries,” 16 A. L. R. 2d 393, § 2, at page 400.
The principle that a new trial can be granted because of inadequacy of damages as announced in the Sundgren case, above, has been followed many times. Although factually dissimilar to the present case, we mention a few of the decisions in which this court has ordered a new trial on such ground: Bracken v. Champlin, 114 Kan. 882, 220 Pac. 1027; Russell v. Newman, 116 Kan. 268, 226 Pac. 752; Burt v. Carr, 120 Kan. 719, 244 Pac. 1044, and Daniels v. Hansen, 128 Kan. 251, 276 Pac. 819.
We are well aware of the fact this is not a “liquidated damages” case such as where recovery — if any — should be in a certain amount. We also are aware of the fact that ordinarily the assessment of damages in personal injury cases is exclusively the province of the jury (Domann v. Pence, 183 Kan. 135, 325 P. 2d 321), and that courts should exercise utmost care and caution in granting a new trial on the ground of inadequacy of a verdict. Further, we also are aware there is no showing here of any overt acts of misconduct on the part of the jury and that the only “misconduct” — if any — is that passion and prejudice are inherent in the amount of the verdict when viewed in the light of the evidence as to the severity, duration, extent and permanency of plaintiff’s injuries. Notwithstanding the fact the matter was passed upon by a very able judge of long experience— we feel compelled to hold that the ends of justice require that a new trial he granted because of the failure of the verdict fairly to compensate plaintiff for his personal injuries as shown hy the undisputed evidence.
There remains a further question. Should the new trial he generally as to all issues — or—as vigorously contended for by plaintiff— should it be limited to the question of damages only?
Concededly, negligence and damages are legally separable issues, and on many occasions this court has granted new trials on the issue of damages alone. We believe, however, that the rule stated in the annotation “New Trial As To Damages Only,” 29 A. L. R. 2d 1199, where at § 10, p. 1214, it is said:
“A new trial as to damages alone should not be granted where there is ground for a strong suspicion that the jury awarded inadequate damages to the plaintiff as a result of a compromise involving the question of liability. Or, as is said in 98 A. L. R. 944, if from the inadequacy of the damages awarded, in view of the evidence on the subject, or the conflict of the evidence upon the question of liability, or from other circumstances, the plain inference may be drawn that the verdict is the result of a compromise, such error taints the entire verdict, and a new trial should be ordered upon all issues.”
is applicable to the situation here presented. On the general subject see also Paul v. Western Distributing Co., 142 Kan. 816, 52 P. 2d 379, and Parker v. Allen, 171 Kan. 360, 233 P. 2d 514.
The judgment is therefore reversed with directions to grant a new trial generally as to all issues. | [
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|
The opinion of the court was delivered by
Parker, C. J.:
This is an action in quo warranto brought by the State of Kansas on relation of the attorney general and county attorney of Sedgwick county, Kansas, against the city of Wichita and the members of the board of commissioners of such city who constitute its governing body.
The subject of the action is a contract which provides that the defendant city shall be furnished a municipal water supply for a reservoir to be constructed by the United States on the north fork of the Ninnescah River at a location approximately twenty miles west of Wichita. The state seeks to elicit a showing of the right by which the defendant city entered into the contract and to thereby test its legality and validity.
The court below sustained the contract and entered judgment for the defendants in accordance with a memorandum opinion which thoroughly examined all points of challenge and determined the contract and the proceedings and acts of the defendant city commissioners whereby the contract was approved and its execution authorized to be fully valid, lawful and binding. The case is here upon an appeal duly taken by the state.
All material facts are disclosed by the pleadings and admitted by the parties, including the contract itself which is set out at length as an exhibit to appellant’s petition.
It may be noted at the outset that the contract is pursuant to the federal reclamation laws and accordingly is subject to the provisions of 70 Stat. 524, 43 U. S. C. § 423e, (43 U. S. C. A. § 423e), which require that its execution be confirmed by a court of competent jurisdiction before any water is furnished from the reservoir. Also, the contract itself contains, at numerical paragraph 24, a provision that it shall not become operative until such judicial confirmation has first been obtained. Aside from those requirements, this court recognizes that the contract looks toward the development of a new and additional source of water supply to serve the largest population concentration in the state of Kansas and also the creation of flood control, fish, wild life and recreational facilities which would be of great benefit to the state at large. The public interest, therefore, is served by a judicial test of the legality and validity of the contract and the remedy of quo warranto has properly been invoked for that purpose.
The facts and history of events which form the background of the contract are rather extensive but may be summarized for the purposes of this opinion as follows:
At an election duly called and held on the 6th day of November. 1956, the electorate of the city of Wichita voted favorably on a proposition for the issuance of revenue bonds in a principal amount not exceeding $32,500,000 to pay the cost of acquiring the waterworks distribution system of The Wichita Water Company, a private corporation, the then holder of water franchise rights in the city of Wichita. The bonds so authorized were duly issued and sold under ordinance No. 22-957 of the city of Wichita, which was adopted on July 30, 1957. That ordinance had and has the effect of a contract between the city of Wichita and the purchasers of the bonds sold thereunder.
The proceeds of the bond sale were used to purchase the distribution facilities of The Wichita Water Company with the result that from and after October 30, 1957, the city of Wichita has operated and maintained a fully integrated waterworks system embracing all functions of water service, from initial supply to customer delivery.
On the occasion of the aforesaid election of November 6, 1956, the electorate of the city of Wichita voted favorably upon another proposition. The essential features of that separate proposition authorized the issuance of water revenue bonds in a principal amount not to exceed $7,650,000 to defray the cost of a pipeline to a new source of water supply of the kind contemplated by the contract in question. The proposition contained the express proviso that the bonds should be issued only in the event a contract should first be entered into pursuant to federal reclamation laws:
“. . . whereby the City would be furnished a municipal water supply from a dam and reservoir to be constructed and owned by the United States of America on the north fork of the Ninnescah River near Cheney, Kansas, at an estimated total cost to tire United States of America of $15,392,000, and whereby, further, the city would be obligated to reimburse the United States of America, over a term of years, the portion of the project cost allocated for reimbursement which reimbursable portion is currently estimated at not to exceed $9,377,000 of the total cost of said dam and reservoir, together with interest thereon not to exceed the rate of Three and one-half percent (3Já%) per annum.”
The revenue bonds for the pipeline have not been issued and the contract here under examination is designed to meet the condition precedent set out in the above ballot proposition.
Ordinance No. 22-957 contains provisions which authorize and permit the city of Wichita (a) to incur a contractual obligation to the United States of America in connection with the securing of an additional water supply for the city in the manner contemplated by the foregoing ballot proposition; and (b) to pay such contractual obligation from the city’s water revenues as an expense of operation with priority over the bond debt service requirements. As heretofore observed, the revenue bond ordinance No. 22-957 constitutes a contract between the city and the bondholders, and the latter purchased the bonds subject to the foregoing conditions.
As directed by the 1956 ballot proposition, the governing body of the city of Wichita undertook to bring about a contract with the United States through the bureau of reclamation of the department of interior. These efforts involved extended negotiations with bureau of reclamation officials, accompanied by numerous feasibility, engineering and other studies. The result was the approval by the bureau of reclamation of the project, which has been federally designated as:
“Cheney Division, Wichita Federal Reclamation Project, consisting of a dam, reservoir, and related facilities, near Cheney, Kansas, on the North Fork of the Ninnescah River, Kansas, for the purposes of furnishing water for municipal uses, controlling floods, facilitating irrigation, enhancing recreational opportunities, preserving and propagating fish and wildlife, and for related purposes.”
Thereafter, the city’s governing body caused legislation to be introduced in the Congress of the United States authorizing the Cheney dam and reservoir as a federal reclamation project. That legislation was enacted in the closing days of the eighty-sixth session of the Congress and became effective when approved by the President of the United States on September 14, 1960. It is entitled:
“An Act to provide for the construction of the Cheney division, Wichita Federal reclamation project, Kansas, and for other purposes.”
and is found at Public Law 86-787, 74 Stat. 1026.
The congressional enactment expressly states that the project shall not be commenced until a contract shall have been entered into with the city of Wichita:
“. . . under which it shall have obligated itself to repay to the United States, within a period of not more than forty years from the time water is first made available from said works, those portions of the Federal costs of constructing, operating, and maintaining the works herein authorized which are allocated to municipal water supply, and interest on the unamortized balance of the amount of construction costs so allocated including interest during construction.” (74 Stat. 1026.)
The contract in question was approved by the governing body of the city of Wichita at a regular meeting held January 17, 1961. The approval was in the form of a resolution which was adopted by the unanimous vote of the board of commissioners after the contract had been read in full and discussed in detail. Pursuant to such approval and the authorization and direction contained in the resolution, the mayor and city clerk executed the contract on behalf of the city of Wichita on January 18, 1961. On that same day the document was signed by a duly authorized official of the bureau of reclamation for and on behalf of the United States of America.
We now turn to a general description of the contract and an examination of its principal features. The facilities to be constructed by the United States include a rolled earth dam on the north fork of the Ninnescah River at a point approximately twenty miles west of the city of Wichita which will create a reservoir approximately ten miles in length and four miles in width at the damsite and in addition basic recreational facilities consisting of roads, picnic areas, water hydrants, sewage disposal systems, boat and beach developments and related works and appurtenances necessary for the operation of the project. The design of the reservoir will include an initial storage capacity of approximately 149,500 acre feet of water for Wichita’s municipal uses; 80,400 acre feet for flood control; and 12,900 acre feet for fish and wildlife. Total construction costs are estimated at $18,274,000, all of which will be advanced by the United States. That portion of the total cost allocated for Wichita’s municipal water supply is estimated at $7,223,000, which is to be repaid by the city to the United States of America, together with interest at the rate of 2% percent per annum on the unamortized balance over a period of forty years, commencing with a first annual installment which shall become due following the completion of the project works. So long as the city makes timely payment of those installments, it shall have the exclusive right to take all of the water from the reservoir that is allocated for a municipal water supply. Upon final satisfaction of the repayment obligation in full, the city shall have the permanent right to such use of water from the reservoir. (It should be noted here that the city is not acquiring any ownership in the physical facilities of the dam and reservoir, but rather is simply contracting with the United States as the owner of the reservoir for the furnishing of a municipal water supply. The distinction is important, as will presently appear.) The contract makes it unmistakably clear that the payments by the city shall be solely from revenues derived by the city from the sale of water and not from an ad valorem tax or any other source. The provisions of paragraph 10b. of the contract read:
“The United States shall never have the right to demand payment by the city of any obligation assumed or imposed on it under and by virtue of this contract from funds raised or to be raised by taxation. The City’s obligations under this contract shall never be construed to be a debt of the City of such kind as to require it under the constitution and laws of the State of Kansas to levy and collect a tax to discharge such obligation, it being expressly understood by the parties hereto that all payments due by the City hereunder are to be made from water revenues received by the City.”
Appellant has asserted several points of challenge to the contract which will be treated in the order and according to the groupings below appearing.
The first question posed is whether the contract is authorized by the statutes of the State of Kansas. In response, the appellees cite Chapter 239 of the Laws of Kansas of 1957 (now G. S. 1959 Supp., 12-2716 and 12-2717) which read in part as follows:
“Section 1. All cities of the state owning their own waterworks are hereby authorized and empowered to contract with the United States of America (or any agency or instrumentality thereof) for the furnishing to such contracting city a municipal water supply from storage and distribution facilities constructed and owned by the United States of America pursuant to the acts of congress relating to the reclamation and irrigation of lands and related subjects.
“Section 2. Such contracting city may thereby obligate itself to reimburse the United States of America such portion of the cost of such storage and distribution facilities including interest thereon as may be determined by such city and the United States of America to be allocable to the municipal water supply furnished. Such contract for reimbursement may extend over such period of years as is permissible under applicable federal laws and regulations and as shall be agreed to by the governing body of such city.” (Emphasis supplied.)
It appears that the foregoing statute expressly authorizes that which has been done in this instance, namely, the contracting by the city of Wichita (which owns its own waterworks) with the United States of America for the furnishing of a municipal water supply from storage facilities to be constructed and owned by the United States pursuant to federal reclamation laws. Moreover, the contract in question, again following the precise terms of the statute, obligates the city of Wichita to reimburse the United States for such portion of the cost of the reservoir, including interest thereon, as has been determined by the city and the United States to be allocable to the municipal water supply furnished. The forty year repayment period is clearly reasonable under the circumstances and conforms to the terms of the federal legislation above referred to, by which the project has been authorized. There is no limit set by the constitution of the State of Kansas as to the number of years for which a city may obligate itself by contract and sufficient authorization for the forty year term provided by the contract in question exists by virtue of the statute above quoted. The statute itself is fully constitutional and valid in all respects. There are no infirmities in its title (Article 2, Section 16, of our state constitution) and it has general application and is not subject to attack as special legislation (Article 2, Section 17, of our state constitution). See Water District No. 1 v. Robb, 182 Kan. 2, 318 P. 2d 387; State, ex rel., v. Hodgson, 183 Kan. 272, 326 P. 2d 752. Secondly, appellant contends that the contract calls upon the city of Wichita to act beyond its powers with respect to land acquisition; that it contemplates that Wichita shall condemn the necessary land for the United States. The underlying historical rule is that eminent domain is one of the attributes of sovereignty and that such power must and may be exercised only by the sovereign for its sole benefit (18 Am. Jur., § 24, p. 649). And, under the constitution and laws of the State of Kansas as they now exist, the city of Wichita does not have the power to acquire land by eminent domain in the name of and for the benefit of the United States. However, an examination of numerical paragraph 12 of the contract discloses that there is no mandatory requirement that the city acquire land in the manner challenged. The language of the contract very carefully qualifies the obligation of the city in such respect by stating that the city shall be required to undertake such land acquisition only “to the extent authorized by state law.” Therefore, inasmuch as the city is not presently authorized by state law to so act, those provisions of the agreement are merely inoperative and the land acquisition will of necessity have to be accomplished by the United States of America in its own name until and unless future enactments of the legislature shall sufficiently authorize the city to so act. Thus, the present inability of the city to carry out the conditional obligation of the contract in respect of land acquisition does not in any manner vitiate the contract. This disposition of the second point raised by appellant malees unnecessary any comment or ruling on the contention that such land acquisition by the city under the contract would be in violation of the cash basis law.
As a third point of challenge, appellant questions the provisions of the contract which state that the payments of the city thereunder shall be classified as an expense of operation and hence paramount to revenue bond debt service requirements. As has been shown •above, such treatment of the city’s repayment obligation is in exact conformity to the terms of Wichita’s ordinance No. 22-957 under which the waterworks revenue bonds were issued and sold and according to which the water revenues received by the city are to be disbursed. It is abundantly clear that the payments by the city under the contract are for the “furnishing of a municipal water supply” and thus properly classifiable as an operating expense. Indeed, it would seem that the cost of a raw product which is purchased for later sale to consumers should, from an accounting standpoint, ordinarily be treated as an expense of operation. In all events, the classification of the repayment obligation of the city of Wichita under the contract as an operational expense is not proscribed by any provision of the laws or constitution of the State of Kansas, but is on the contrary reasonable, proper and within the authorized powers of the city of Wichita.
A fourth question raised by appellant is that whereas the contract contemplates that the city shall install its intake works at a point on the downstream face of the dam, it is a fair assumption that those intake works which are to be at the cost of the city, will be located on federal property. The contract, however, read in full context, makes it clear that the city shall have a “right” to enter on to the federally owned land to the extent necessary to connect the city’s pipeline and intake works to the outlet to be provided in the dam. It is unnecessary to attempt to classify that “right” as being an easement, right-of-way, profit or license and this court declines to make any such classification. It suffices to say that the contract is interpreted and construed as entitling the city of Wichita to retain separate title and ownership of its pipeline and intake facilities, even though they be located on United States property and that by virtue of such express agreement, the pipeline and intake works will not become affixed to and a part of the federally owned realty upon which they are located.
For a fifth and final point, appellant suggests that the approval of the contract and the authorization for its execution by the city’s governing body on January 17,1961, should have been by ordinance rather than by resolution. The contract is fully within the terms and scope of the November 6, 1956, ballot proposition voted by the electorate of Wichita. The repayment obligation of the city is substantially less than the ceiling provided by the proposition, i. e., $7,223,000 as compared with the authorized $9,377,000. Also, the 2% percent rate of interest specified in the contract is well below the 3M percent maximum prescribed by the ballot proposition. Thus, the city, through its governing body, has acted within and according to the mandate of the ballot proposition voted by the electorate. Moreover, the proceedings by which the contract in question was finally approved and its execution authorized were in all respects due and regular. In point with respect to the question of whether the final action should have been by ordinance rather than by resolution is the case of State, ex rel., v. City of Coffeyville, 138 Kan. 909, 912, 28 P. 2d 1032. There the governing body of a city of the first class by resolution rather than ordinance, entered into a contract to purchase gas to meet the city’s requirements at a stipulated price and for a fixed term of years, and with the privilege granted to the gas company to lay pipes in the city streets and alleys. The court held that such action of the governing body was purely administrative in character and that hence the authorization of the contract by resolution was fully sufficient.
Also, as has been heretofore pointed out, the city by ordinance No. 22-957 (adopted after Chapter 239, Laws of 1957) authorized a contract such as the one under examination and directed that the payments for the water supply so obtained should be on a parity with other expenses of operation. The ordinance provisions in that regard read:
“. . . the City may incur any such contractual obligations [to the United States for the furnishing of a municipal water supply] and may pay and discharge the same as an expense of operating its waterworks utility . . .”
10 McQuillan, Municipal Corporations, [3rd Ed.], § 29.19, p. 234 points out that absent a requirement in the authorizing legislation that the contract be approved by ordinance, a resolution is fully adequate:
“And where the state legislature has authorized a municipality to make a contract but does not require it to be done by ordinance, the legislative body of the municipality may contract by vote upon motion, or by the passage of a resolution.”
It will be remembered that Chapter 239 of the Laws of 1957 authorizes the contract in question but does not require that it be approved by ordinance.
Under all of the facts and circumstances here existing, the authorization for the execution of the contract by resolution of the governing body of the city of Wichita on January 17, 1961, was fully sufficient and the binding effect of the contract is not in any way affected or impaired thereby.
Finally, in addition to the conclusions heretofore announced, it should be noted we agree with the trial court’s general finding that the proceedings and acts of the governing body of appellee city whereby the contract was approved and its execution authorized were proper and valid and that the contract itself is legal and binding upon the parties according to its terms and provisions.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action brought by Raymond and Clarice Finkenbinder, plaintiffs (appellees), against Michael and Neva Dreese, defendants (appellants), for the specific performance of a real estate contract.
The petition alleged in pertinent part that plaintiffs and defendants entered into a written contract, attached to and made a part of the petition, under the terms of which plaintiffs agreed to sell and defendants agreed to buy certain described real estate for $1,312.92 cash and a balance of $3,887.08, with interest at six per cent, payable in monthly installments of fifty dollars on the fourth day of each succeeding month. The agreement also provided that if defendants failed to make any of the payments or to perform any of the covenants therein, the contract, at the option of the plaintiffs, should be forfeited and determined and the defendants should forfeit all payments made by them in full satisfaction thereof and in liquidation of all damages sustained thereunder by plaintiffs.
The petition further alleged that plaintiffs had performed all their contractual duties but defendants had failed to make certain monthly payments under the terms of the contract; that plaintiffs were willing to perform the agreement, and on being paid the remainder of the purchase price they would deliver to defendants the warranty deed to the property; that time was of the essence of the contract and defendants had breached the contract requiring that the payments be made promptly, and that plaintiffs were entitled to specific performance of the contract. Plaintiffs prayed for judgment against defendants for the full amount due under the contract and for such other and further relief as might be equitable.
The defendants demurred to the petition on the ground that it failed to state a cause of action. From an order of the trial court overruling their demurrer, defendants appeal.
It appears the gist of defendants’ argument is that inasmuch as there was no acceleration clause in the contract plaintiffs cannot recover the full balance due thereunder; that the action is premature, and that plaintiffs have an adequate remedy at law precluding their right to seek equitable relief by way of specific performance.
It was stated in Parks v. Monroe, 99 Kan. 368, 370, 161 Pac. 638, that a party to a contract enforceable in equity may sue to establish his rights thereunder as soon as the other contracting party has repudiated it, notwithstanding the time for full performance may not have arrived. When a contract is repudiated by one of the parties thereto, the other party has a right to take such steps as he may deem necessary to protect himself against loss or damage because of such repudiation.
In the instant case, the petition alleged that the defendants breached the contract and failed to make the payments due under its terms, and plaintiffs asked the court of equity to grant them any relief to which they might be entitled. The petition clearly stated a cause of action. The mere fact that a party can avail himself of some relief at law does not preclude or defeat the jurisdiction of equity to decree specific performance (Scott v. Southwest Grease & Oil Co., 167 Kan. 171, 175, 205 P. 2d 914; 49 Am. Jur., Specific Performance, § 11, pp. 20, 21, and § 43, p. 58).
This court has stated many times that when a petition sufficiently alleges a cause of action on any theory, a general demurrer thereto cannot be sustained (Richey v. Darling, 183 Kan. 642, 331 P. 2d 281; Otto v. Swartz, 186 Kan. 689, 693, 694, 352 P. 2d 12). The mere fact that a petition seeks to recover more or different relief from that to which a plaintiff may be entitled does not make the petition demurrable if it otherwise states a cause of action (Board of Education v. Thompson, 185 Kan. 620, 347 P. 2d 369; In re Estate of Manweiler, 185 Kan. 343, 348, 342 P. 2d 730; Cooley v. Shepherd, 170 Kan. 232, 236, 225 P. 2d 75).
Another settled rule of long standing in this jurisdiction is that if a cause of action is stated in plaintiff’s petition, what is prayed for is not always very important. The prayer of a petition is merely the plaintiff’s idea of the relief to which he is entitled. It is not a part of the statement of the cause of action. If the cause of action is sufficiently stated and sufficiently proved, the court will adjudge and decree the proper relief, which may or may not conform in whole or in part to the relief prayed for in the petition. The allegations of the petition, rather than the prayer for relief, determine the nature of the action brought. (United Brethren, Etc., v. Mount Carmel Community Cemetery Ass’n, 152 Kan. 243, 246, 103 P. 2d 877; Foster v. Humburg, 180 Kan. 64, 67, 68, 299 P. 2d 46; In re Estate of Manweiler, supra, p. 348.)
From an examination of the petition in this case it would seem almost too obvious for argument that a cause of action for specific performance and equitable relief was stated. It is not the function of this court, in advance of the joinder of issues and the presentation of evidence, to determine to what form of relief, if any, the plaintiffs are entitled. Other contentions made by the defendants are without merit. The judgment of the trial court is affirmed.
It is so ordered. | [
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On the 4th day of November, 1977, John R. Elmborg was indefinitely suspended from the practice of law in Kansas. In re Elmborg, 223 Kan. 13, 570 P.2d 1374 (1977).
On the 8th day of November, 1984, Mr. Elmborg filed a petition with this Court for reinstatement to the practice of law in Kansas. The petition was referred to the Kansas Board for Discipline of Attorneys and the Disciplinary Administrator for investigation and recommendations. A panel of the Board held a public hearing and determined that Mr. Elmborg appears to have rehabilitated himself and recommended that he be reinstated to the practice of law in Kansas upon condition that he successfully complete an intensive legal review course.
The court considered the report and recommendations of the Board and, in an order dated March 28, 1986, stated:
“After carefully considering the record herein the Court finds that upon the successful completion of a Kansas bar review course and the passing of the essay or written portion of the Kansas bar examination petitioner may be reinstated to the practice of law.”
Petitioner has completed the required bar review course and the Kansas Board for Admission of Attorneys has certified to this Court that John R. Elmborg took and successfully passed the essay or written portion of the Kansas bar examination given in February, 1987.
The Court finds that petitioner has complied with all conditions for reinstatement and should be reinstated to the practice of law in Kansas.
IT IS THEREFORE ORDERED that John R. Elmborg be and he is hereby reinstated to the practice of law in the State of Kansas and the Clerk of the Appellate Courts is directed to enter his name upon the roster of attorneys engaged in the practice of law in Kansas.
IT IS FURTHER ORDERED that this order shall be published in the official Kansas Reports. | [
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|
The opinion of the court was delivered by
Wertz, J.:
This was an action for the recovery of money on a contractor’s statutory bond.
Plaintiff filed a bill of particulars in a justice of the peace court of Bourbon county against William A Reser, d/b/a Continental Construction Co., and Phoenix Assurance Company of New York, a corporation, defendant (appellant) herein. The case was appealed to tire district court by defendant Phoenix Assurance Company, and from a judgment for the plaintiff in that court, defendant appeals.
P. D. Russell, plaintiff (appellee), alleged in his bill of particulars that William A. Reser, d/b/a Continental Construction Co., entered into a contract with the city of Bronson to construct and complete certain pipe lines and other portions of a municipal water works.
It was further alleged that in connection with the contract executed by Reser and the city, he, as principal, and the Phoenix Assurance Company of New York, as surety, executed a statutory bond as provided and required by G. S. 1949, 60-1413 and 60-1414, by the terms of which the defendants obligated themselves to pay “all indebtedness incurred for supplies, materials or labor furnished, used or consumed in connection with or in or about the construction of said public building or in making such public improvements, including gasoline, lubricating oils, fuel oils, greases, coal and similar items used or consumed directly in furtherance of such improvements.”
It was also alleged that the defendants were indebted to the plaintiff in the sum of $108.98 with interest upon an account and indebtedness contracted by Reser, for which defendant Phoenix Assurance Company was liable under the bond.
The case went to trial on the aforementioned bill of particulars. No other pleading was filed in the district court. A jury was waived and evidence adduced. William A. Reser did not appear at the trial and no service was had upon him. The trial court found that defendant Phoenix Assurance Company was justly indebted to the plaintiff on account of and in connection with the bond mentioned in the bill of particulars in the sum of $100, which it had refused without just cause or excuse to pay, and that plaintiff should therefore recover an attorney fee in the sum of $200 as a part of the costs. The court entered judgment accordingly, and defendant appeals therefrom.
The trial court made no special findings of fact or conclusions of law but did make a finding that the Phoenix Assurance Company was justly indebted to the plaintiff under the terms of its bond. No motion for a new trial was filed and the judgment was rendered in conformity with the allegations of the bill of particulars and the findings of the trial court.
We have repeatedly held that in the absence of a motion for a new trial the scope of appellate review is limited to the question of whether the judgment is supported by the pleadings and the findings of the trial court. Trial errors will not be reviewed, nor will inquiry be made as to whether the evidence supports the findings of fact. (Barclay v. Mitchum, 186 Kan. 463, 350 P. 2d 1109; Ogilvie v. Mangels, 183 Kan. 733, 735, 332 P. 2d 581; Jeffers v. Jeffers, 181 Kan. 515, 518, 313 P. 2d 233.) It is evident from a reading of the bill of particulars and the findings of the trial court in the instant case that they support the lower court’s judgment.
Attorney fees were properly allowed under the provisions of G. S. 1959 Supp., 40-256. See Allen v. Hartford Fire Ins. Co., 187 Kan. 728, 359 P. 2d 829; Ferrellgas Corporation v. Phoenix Ins. Co., 187 Kan. 530, 534, 358 P. 2d 786; Humfeld v. Pyramid Life Ins. Co., 187 Kan. 231, 235, 356 P. 2d 668.
The judgment must therefore bé affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Wertz, J.:
This action was brought by a workman’s dependents to recover compensation for his death under the provisions of the workmen’s compensation act (G. S. 1949, Ch. 44, Art. 5, as amended). Both the workmen’s compensation commissioner and the trial court made findings of fact in favor of claimants (appellees) — the widow and the minor children — and allowed compensation. Respondents (appellants) bring the case here and contend the trial court erred in finding there was substantial evidence to support the finding that the death of decedent arose out of and in the course of his employment with respondent.
A brief résumé of the pertinent facts follows. At the time of his death Joseph Bohanan was forty-one years of age, married, and the father of three minor children. He was employed, and had been for seven months, as a mechanic by respondent Schlozman Ford, Inc. Respondent’s shop foreman stated that decedent was about as dependable a person as ever worked for him; at no time did deceased ever complain about feeling bad or feeling sick; he was on the job every morning at 7:30 — one could set one’s watch by the time decedent got in; and that during the seven months he had only one day off to attend to his private business.
The evidence further disclosed that decedent reported for work at 7:30 a. m, on June 22, 1959, and performed his labors as a mechanic for respondent between the hours of 8:00 and 12:00 noon on that day until he collapsed while eating lunch on respondent’s premises at approximately 12:05 p. m. Decedent was working on a Ford automobile, putting rings and bearings in the car. The work he was performing required more exertion than his usual work in that he was working under and on top of an automobile which had been brought to respondent for repair by the owner, who had done some work on it, and who had placed rings, which were too large, on the pistons. The decedent shoved the pistons in. The rings being too large, he was having trouble getting them out, and was getting up and down more than was ordinarily required in his work,
When he reported to work in the morning he complained of not feeling too well, and later told respondent’s service manager, Orville Green, that he did not feel very well but did not want to go to a doctor. During the morning the deceased was sick at his stomach, and on one occasion went to the back door. At noon, the regular lunch hour, he and a fellow employee, John Gulich, sat down for lunch on the premises, as was their usual custom. Decedent suddenly lost his facial color which prompted Gulich to remark, “Joe, if I looked as bad as you, I would go home.” Decedent started to get up from his seat, but fell over onto the floor and collapsed at 12:05 p. m., and died en route to the hospital.
Dr. Johnson testified he was of the opinion that decedent had definite evidence of coronary disease, definite evidence of myocardium damage of an acute type and that he was, in fact, suffer ing from incipient myocardial infarction with histological evidence of myocardial damage, and that whether he was aware of it or not, any activity that he would have engaged in, including certainly his work, would have aggravated the situation, and did so. He further testified that in his opinion the decedent’s performance of labor on the morning in question was the actual cause or contributed to the cause of his death.
Dr. Day testified that since this man had a myocardial infarction any amount of work-effort or exertion would exaggerate, increase, or hasten his death, and that there was a causal connection between the actual performance of the labor and his death.
Dr. Steinzeig testified that a myocardial infarction caused deceased’s death, and the fact that he continued the performance of labors after he suffered this myocardial infarction could have and did contribute to the death of the decedent.
Dr. Manley testified that the performance of duties as an automobile mechanic and the effort and exertion in the usual performance of labor very definitely contributed to this man’s death.
Respondents state in their brief that the evidence, particularly the medical testimony, is unanimous and undisputed that decedent had a bad heart for a period of years, that he had suffered an earlier coronary thrombosis and infarction prior to commencing his work, and that any exertion whatsoever would contribute to his death.
The trial court found that the decedent’s physical structure gave way under the stress of his labor; that the strain and exertion of decedent’s work aggravated his existing heart condition, contributed to, and had a causal connection with, and proximately caused the heart attack which resulted in his death on the day in question; and that the decedent met with personal injury by accident arising out of and in the course of his employment by respondent resulting in his death.
Did the record show or tend to show decedent’s death was a result of accidental injury arising out of and in the course of employment? It is a well-established rule in this state that accidental injuries are compensable where the accident only serves to aggravate or accelerate an existing disease, intensifies the affliction, or contributes to the death of the workman. (Carney v. Hellar, 155 Kan. 674, 677, 127 P. 2d 496; Workman v. Johnson Bros. Construction Co., 164 Kan. 478, 190 P. 2d 863; Johnson v. Skelly Oil Co., 181 Kan. 655, 656, 312 P. 2d 1076; Strasser v. Jones, 186 Kan. 507, 511, 350 P. 2d 779.)
The term “personal injury” as used in our workmen’s compensation act (G. S. 1949, 44-501) is generally construed as meaning any lesion or change in the physical structure of the body, causing damage or harm thereto, so that it gives way under the stress of a workman’s usual labor; and, it is not essential that the disorder be of such character as to present external or visible signs of its existence. (Pinkston v. Rice Motor Co., 180 Kan. 295, 303 P. 2d 197; Thuillez v. Yellow Transit Freight Lines, 187 Kan. 618, 358 P. 2d 676.)
The term “accident” as used in the same statute was long ago construed and applied by Mr. Justice Burch, speaking for this court, in Gilliland v. Cement Co., 104 Kan. 771, 180 Pac. 793, and consistently followed since that time, as meaning an occurrence or event which is undesigned, sudden and unexpected, usually of an afflictive or unfortunate character and often, but not necessarily, accompanied by a manifestation of force. (Pinkston v. Rice Motor Co., supra; Thuillez v. Yellow Transit Freight Lines, supra.)
Only recently in the Thuillez case we again reiterated, without deviation, the elementary, long-standing rule of this court that coronary occlusion, coronary thrombosis, cerebral hemorrhage or heart failure-acute, which resulted in death or disability to a workman, was personal injury by accident when it arose out of and was received in the course of employment.
Did the accident arise out of the workman’s employment? The phrase “out of employment” points to the cause of origin of the accident and requires some causal connection between the injury and the employment. In determining whether there was a causal connection between the work done and the injury suffered, we must, of necessity, consider the existing physical condition of the workman at the time of the injury. An injury arises out of employment if it arises out of the nature, conditions, obligations, and incidents of employment. (Carney v. Hellar, 155 Kan. 674, 677, 127 P. 2d 496; Pinkston v. Rice Motor Co., supra [p. 302]; Workman v. Johnson Bros. Construction Co., supra.)
If a workman’s existing physical structure, whatever it may be, gives way under the stress of his usual labor, his death is an accident which arises out of his employment. In Gilliland v. Cement Co., supra, it was stated, “An accident arises out of the employment when the required exertion producing the accident is too great for the man undertaking the work, whatever the degree of exertion or the condition of health . . .” It was further stated, “It is not material that the workman s blood vessels were weakened by disease, or that he was predisposed to hemorrhage because, for example, he had breathed the dust of the sacking department for three years. The statute establishes no standard of health for workmen, entitling them or their dependents to compensation, and if the added factor of physical exertion in the employment were required to effect the lesion, and did so, the injury arose out of the employment.”
Did the accident occur in the course of his employment? The phrase “in the course of his employment” simply means that the injury happened while the workman was at work in his employer’s service. The phrase relates to the time, place and circumstances under which the accident occurred. (Carney v. Hellar, supra [p. 677], and Pinkston v. Rice Motor Co., supra [p. 310].)
After an examination of the entire record, and without reiterating, the evidence is undisputable that deceased met with personal injury by accident due to the strain and exertion of his work which aggravated his existing heart condition, contributed to, had a causal connection with, and proximately caused the heart attack which resulted in his death. It is immaterial that his death did not occur until he was en route to the hospital.
The evidence was sufficient to support the findings of the trial court that the injury resulting in the death of decedent arose out of and in the course of his employment with respondent. The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Schroeder, J.:
This appeal grows out of an ancillary administration of the estate of Charles Bertrand, a nonresident testate deceased.
The probate court of Thomas County, where ancillary administration proceedings were conducted, refused to discharge the ancillary nonresident executor for failure to comply with its order of final settlement which it construed as requiring such executor to pay his Kansas attorneys the fees allowed for their services.
The ancillary nonresident executor appealed the order of the probate court refusing to discharge him to the district court, and from an adverse ruling in the district court the attorneys who represented such executor in the probate court perfected an appeal to this court.
While eleven specifications of error are assigned, they resolve into two principal questions: (1) Whether appeal was properly perfected from the probate court to the district court, thus challenging the jurisdiction of the district court to hear the matter; and (2) whether the Kansas attorneys who represented the executor in the ancillary administration proceeding have a sufficient legal interest in the matter to appear in the district court and to appeal to the Supreme Court.
The facts giving rise to this controversy are as follows:
A Nebraska resident, Charles Bertrand, died testate leaving considerable property located in the state of Kansas. Harry Frandsen was appointed domiciliary executor in the state of Nebraska where he resides. Ancillary proceedings to administer the estate of Charles Bertrand located in the state of Kansas were conducted by the probate court of Thomas County, Kansas. Harry Frandsen was ap pointed the ancillary executor in Kansas. In these ancillary administration proceedings the records of the probate court disclose that Stowell and Stowell, attorneys of Phillipsburg, Kansas, represented the Kansas ancillary executor exclusively in the Kansas probate proceedings.
The petition for final settlement signed, verified and filed in the Thomas County probate court by the nonresident ancillary executor alleged the issuance of letters testamentary to the petitioner to execute the will of the decedent in Kansas. It further alleged the death of the decedent, the heirs of the decedent under the Kansas laws of descent and distribution, the admission of an authenticated copy of the will of the decedent to probate in the probate court of Thomas County, Kansas, the name and designation of the devisees and legatees, an itemized list of the Kansas receipts of the ancillary executor in the sum of $536,291.46 and of his disbursements of $393,594.66, and that:
“Petitioner has performed services and had expenses by reason of said estate and has employed Stowell and Stowell as his attorneys, and that they have performed services on behalf of said estate and that allowance should be made him for his services and expenses and for his attorneys fees to be paid said attorneys in a proper sum, in addition to allowances made by the court in the past.” (Emphasis added.)
In addition the petition for final settlement alleged that the widow should have assigned to her $73,530.86, plus half of the funds received after the filing of the petition, less half of the expenses of administration not heretofore paid and other expenses ordered paid by the court, and a half interest in sixty-two quarter sections of land in Thomas and Logan Counties, and in some lots in Monument, Kansas, and a one-half interest in an undivided half interest perpetually in the minerals, including oil and gas in twenty quarter sections in Thomas, Gove and Sheridan Counties.
The petition also set out that the other properties of the estate should be assigned in trust, and that the petitioner should be appointed trustee by the probate court of Thomas County for the Kansas assets, and contained allegations of the powers, use and handling and final assignment of the trusts when the youngest grandchild of the decedent reached the age of thirty years.
The journal entry of final settlement signed by the probate judge of Thomas County on September 18, 1959, recited the appearances at the hearing on final settlement, approved the notices, and disclosed that the petition for final settlement was presented and evidence produced thereon, and that the court after considering the evidence found the allegations of the petition to be true. The journal entry further set forth the order of the court assigning the property of the estate in accordance with the allegations contained in the petition for final settlement, construing the terms of the will and the trust therein contained, and directed the handling and disposition of the trust in accordance with the allegations made in the petition for final settlement. The court further found and ordered payment of the court costs, guardian ad litem fees, in addition to the allowance already made in the sum of $500, and:
“that the Executor, Harry Frandsen, has performed services in this estate which are reasonably worth, in addition to the sum of $5,000.00 allowance made to him heretofore, the sum of $5,000.00; that the Executor has employed Stowell & Stowell as his attorneys in this estate, and that the services of said attorneys are reasonably worth, in addition to the partial allowance of $15,000.00 heretofore made by the Court, the sum of $15,000.00, and that allowance should be made to said Executor for attorney fees in said amount; it being the order of the Court that the Executor be allowed the sum of $5,000.00 for his services, in addition to the $5,000.00 partial allowance previously made, and that he he allowed the sum of $15,000.00 in addition to the $15,000.00 partial allowance previously made, for- the services of his attorneys, Stowell b- Stowell. That the Executor pay the said allowances out of the monies in his hands. Upon the filing of receipts showing the payment and distribution above provided for, that the said Harry Frandsen be finally discharged as.Executor in the state of Kansas and he and his surety released from further liability on his bond.” (Emphasis added.)
On the 24th day of March, 1960, the ancillary executor filed receipts claiming that he had fully complied with the order of final settlement entered on the 18th day of September, 1959, but, after hearing, the probate judge refused to discharge him. The journal entry signed and filed by the probate judge on the 24th day of March, 1960, recites:
“from this and other evidence the Court finds that of the additional $15,-000.00 allowance for attorneys’ fees that was received by the Executor, that he paid $7,000.00 to Stowell and Stowell and $8,000.00 to Richard E. Person and Richard A. Dier, and that such payment of attorneys fees was not in compliance with the order of this Court and that for that reason the Court refuses to enter a discharge herein.” (Emphasis added.)
Among the receipts presented to the probate court was an instrument entitled “Receipt” and signed by Harry Frandsen, Executor, to the following effect:
“I acknowledge receipt of $15,000 for the service of the attorneys herein in accord with the order of September 18, 1959, and that in accordance with the written agreement of Stowell & Stowell and Richard E. Person of Holdredge and Richard A. Dier of Kearney, a copy of which is attached, I disbursed said allowance as follows: To Stowell & Stowell . . . $7,000.00. To Richard E. Person and Richard A. Dier . . . $8,000.00. I certify the signed agreement was furnished me by Stowell & Stowell shortly after August 10, 1960.” (sic)
The written agreement attached thereto and signed by the attorneys reads:
“The fee to be asked for in the Charles Bertrand estate will be in the total sum of $25,000 in the state of Kansas, plus actual expenses which have been paid. In the event of contest or other litigation or anything requiring further and additional work beyond a routine closing, additional and separate fees in a reasonable sum will be allowed to Stowell & Stowell, as agreed by the parties from the fees allowed by the Court. On aggregate fees of $20,000.00, Stowell & Stowell may retain $2,000.00 and transmit the balance to Richard E. Person and Richard A. Dier. On aggregate fees in excess of $2*0,000.00, the additional fee will be divided equally, that is Stowell & Stowell retaining one-half and transmitting one-half. Stowell & Stowell will be reimbursed for phone calls, deed preparation and verifax copy work expenses which have been incurred. As far as the forthcoming testamentary trust in Kansas is concerned, the Nebraska attorneys, or the survivor, shall, in reimbursement of their services to the Kansas attorneys, receive one-third of the attorneys fees allowed the Kansas trustee’s attorneys, after deduction of actual expenses, and the firm of Stowell & Stowell, or the survivor, to retain two-thirds in payment for their sendees. If the representation of the trustee or his successors in either State be terminated, by death or otherwise, by both attorneys in either state, the fee division arrangement will be terminated. Dated August 10, 1959.”
On the 19th day of April, 1960, the ancillary executor served notice of appeal on the probate judge for all persons concerned from all orders entered by the probate court on the 24th day of March, 1960, in which the court refused to enter an order of final discharge and release the executor and his sureties.
Thereupon Stowell and Stowell (appellants) on the 28th day of April, 1960, filed a motion for additional time to plead in the district court of Thomas County on the appeal of the ancillary executor, and requested twenty days from the time of the hearing within which to plead. The ancillary executor (appellee) on the 18th day of May, 1960, filed a motion to strike the appellants’ motion for additional time for the reason: “(a) such motion is an unauthorized pleading in this cause and (b) Stowell & Stowell have no interest in said cause, and are without authority to appear in this proceeding.”
Thereafter on the 7th day of June, 1960, Stowell and Stowell filed in the district court of Thomas County a verified pleading, the allegations of which are immaterial to this appeal, except to note it alleged that following the order of the probate court, allowing $15,000 further fees to the executor for his attorneys, the $15,000 was not paid or tendered by the executor to Stowell and Stowell.
Disposition of the foregoing motions and the action taken by the district court are disclosed by a journal entry filed the 28th day of June, 1960, which recites:
“Now, on this 23rd day of May, 1960, this matter is continued at the request of Harry Frandsen, as executor of the estate of Charles Bertrand, deceased, and with the consent of Stowell & Stowell.
“Now, on this 7th day of June, 1960, the above matter comes on for hearing. Present are Harry Frandsen, executor of the estate of Charles Bertrand, deceased, by his attorneys, Relihan, Relihan & Relihan and Amo Windscheffel of Smith Center, Kansas, and the claimants Stowell & Stowell, by William PI. Stowell and» Leon Roulier, their attorneys. Thereupon, the claimants Stowell & Stowell present their motion for additional time to plead. Thereupon, the executor Plarry Frandsen presents his motion to strike the motion of Stowell & Stowell on the grounds that Stowell & Stowell are not proper parties to the action. Stowell & Stowell then presented an answer and asked that it be filed to show what interest and what right Stowell & Stowell had to be parties to the action. The Court examined the answer offered by Stowell & Stowell and found that it did not present a defense to the action, and that Stowell & Stowell are not proper parties to this case. The motion of the executor to strike was then sustained, and the motion of the claimants, Stowell & Stowell, for additional time to plead was denied.
“Thereupon, the executor requested an order upon the petition in which the executor asked to be discharged. The matter being fully considered, the case was remanded to the Probate Court of Thomas County, and he was directed to discharge the executor.”
Appeal was duly perfected by the appellants, Stowell and Stowell, from the orders of the district court made on the 7th day of June, 1960, as set forth in the journal entry.
At the hearing before the district court on the 7th day of June, 1960, no evidence was introduced, but the transcript reflects an inquiry as to whether the court was treating the matter as a demurrer to which the trial judge answered:
“I would presume that probably would be the way the matter is treated, although it is not exactly in the nature of a demurrer. Actually, the Court is holding that Stowell & Stowell are not parties in this case, have no right to file a pleading in this case. It is not a demurrer. It is just simply that they are not parties to this action; therefore, they have no right to file a pleading.”
It is clear under the provisions of G. S. 1949, 59-301, that probate courts are courts of record, and, within their respective counties, have original jurisdiction to direct and control the official acts of executors and administrators; and that they also have and exercise such equitable powers as may be necessary and proper fully to hear and determine any matter properly before such courts.
In addition to the general jurisdiction of probate courts, they have power to compel throughout the state the performance of any duty incumbent upon any fiduciary appointed by or accounting to such courts. (G. S. 1949, 59-302[4].)
G. S. 1949, 59-1717, provides:
“Every fiduciary shall be allowed his necessary expenses incurred in the execution of his trust, and shall have such compensation for his services and those of his attorneys as shall be just and reasonable. At any time during administration the fiduciary may apply to the court for an allowance upon his compensation and upon attorneys’ fees.” (Emphasis added.)
The final discharge of a fiduciary is controlled by the provisions of G. S. 1949, 59-1718, as follows:
“Whenever any fiduciary has paid or transferred to the persons entitled thereto all of the property of the estate, paid all taxes required to be paid by him and has filed proof thereof, and has complied with all the orders and decrees of the court and with the provisions of law, and has otherwise fully discharged his trust, the court shall- finally discharge him and his sureties.” (Emphasis added.)
Other sections of the probate code applicable to the instant appeal are:
G. S. 1949, 59-2213, which provides:
“No judgment or decree shall be rendered in a probate proceeding without proof. The court shall have control of its orders, judgments, and decrees for thirty days after the date of the rendition thereof. Thereafter such orders, judgments, and decrees may be vacated or modified .as provided by section 605 [*] of the code of civil procedure.” (Emphasis added.)
G. S. 1949, 59-2401, which provides in pertinent part:
“An appeal to the district court may be taken from any of the following orders, judgments, decrees, and decisions of the probate court: . . . (21) A final decision of any matter arising under the jurisdiction of the probate court.”
G. S. 1949, 59-2404, which provides in pertinent part:
“Such appeal may be taken by any person aggrieved within thirty days after the making of such order, judgment, decree, or decision: . . .” (Emphasis added.)
While the provisions of 59-2401, supra, do not specifically list an order making an allowance of compensation to the executor for the services of his attorneys as an appealable order, the allowance for attorneys’ fees here in question was made a part of the order of final settlement. As such it was a final decision which should have been appealed to the district court by the aggrieved party within thirty days under the provisions of 59-2404, supra. The ancillary executor herein perfected no appeal to the district court from the order of final settlement. He appealed only from the order of the probate court refusing to discharge him for failure to comply with its order of final settlement. This was more than thirty days after the order of final settlement had been entered.
It is the appellants’ contention that the ancillary executor is actually attempting to appeal from the order of the probate court requiring him to pay his Kansas attorneys the compensation allowed such executor for the services of his attorneys, although at the time of the appeal the order was more than thirty days old. It is therefore suggested the district court did not have jurisdiction to entertain the ancillary executor’s appeal. This point is well taken.
It is a fundamental 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, the judgment is final and conclusive unless corrected or modified on appeal, or by such other method as may be prescribed by statute, and it cannot be attacked collaterally otherwise.
Where due notice of a proposed final settlement of an estate has been given, the probate court has jurisdiction to make the settlement, apportion the residue of the estate among those entitled to share it, and to order distribution. Such order is binding and conclusive upon all having notice of the proceeding, unless vacated or set aside upon the grounds or by the methods prescribed by statute. (In re Estate of Burling, 179 Kan. 687, 298 P. 2d 290, and numerous authorities cited therein.)
It was said in the opinion of the case just cited:
“After the probate court lost control of its judgment of final settlement, the only order it could further make was to finally discharge the executor upon his filing receipts for sums of money ordered disbursed by the journal entry of final settlement . . . The fact that the executor delayed in filing such receipts until April 27, 1954, did not prevent the judgment of final settlement from becoming final and absolute. Thereafter, the probate court had control of the executor for one purpose only, L e., to finally discharge him when he filed his receipts . . .” (p. 695.)
The general powers of the probate court over fiduciaries under 59-301, 59-302 and 59-1718, supra, were before the court in In re Estate of Williams, 160 Kan. 220, 160 P. 2d 260, where the court held:
“Under the present probate code probate courts have general authority to approve or disapprove final receipts filed by fiduciaries and may exercise judicial discretion as to whether such fiduciaries shall be discharged.” (Syl. ¶ 1.)
The appeal by the ancillary executor to the district court within thirty days from the order of the probate court refusing to discharge him, requires consideration of the second holding of the court in the case of In re Estate of Williams, supra, which reads:
“On appeal from an order of the probate court denying a motion to discharge an administrator, the district court also' may exercise the same judicial discretion and its judgment will not be reversed in the absence of a clear showing of an abuse of such discretion.” (Syl. ¶ 2.)
It must be observed the district court did not consider the merits of the appeal taken from the probate court because it heard no evidence. By reason thereof it did not exercise judicial discretion in reversing the probate court by ordering the discharge of the ancillary executor. It decided the appeal solely on the ground that Stowell and Stowell, the Kansas attorneys for the ancillary executor in the probate court, were not parties to the action and had no interest therein. The district court, in effect, treated the appeal as having been taken from the order of final settlement, and applied its own interpretation.
Do the appellants, as attorneys for the ancillary executor in Kansas, on the facts presented by the record in this case have a sufficient legal interest in the matter to appear in the district court? An answer to this question will also determine whether the appellants have a right to perfect an appeal to the Supreme Court in this controversy.
The appellee argues that the appellants were attorneys for the executor to assist him in the proper administration of the estate, and are furthering litigation adverse to the estate and to the executor. He argues that final settlement has been made in the estate; that the executor has disbursed the estate funds in his hands and now finds himself and the estate involved in litigation which he had no reason to anticipate or expect, and particularly litigation with attorneys who were employed to aid him in the proper administration of the estate. He argues the appellants are not aggrieved by reason of the order discharging the executor; that they have no claim against the Bertrand estate, or against the executor in his representative capacity, and the order of discharge does not deprive the appellants of any right of action, nor does it affect them in any manner.
The appellee contends the appellants are not real parties in interest and relies upon the case of In re Estate of Johnson, (Syl. ¶ 3), 164 Kan. 45, 187 P. 2d 376, for the proposition that one who is not entitled to object to an order of final settlement of an estate in probate court is not entitled to appeal from such order to the district court.
It may be conceded the appellants did not have a right in the probate court to object to "the order of final settlement made regarding the estate in question, but the probate court entered an order of final settlement in accordance with the executor’s petition and it became final without an appeal having been perfected therefrom. It was the executor who appealed to the district court on the matter in controversy and not the appellants.
In our opinion the appellants had a legal duty to appear in the district court as attorneys to defend the order of the probate court which had become final. Their interest by reason of the order of final settlement in the estate had become substantial, and as officers of the court in which they practiced, they had the right to appear.
It is essential to the disposition of this case that consideration be given to In re Estate of Eyth, 157 Kan. 268, 139 P. 2d 378, and the cases of Brown v. Quinton, 80 Kan. 44, 102 Pac. 242, and Brown v. Quinton, 86 Kan. 658, 122 Pac. 116, upon which reliance is placed in the Eyth case.
In the first appearance of the Brown case an appeal was perfected to this court from an order of the district court dismissing a petition on the ground it did not state a cause of action. The second appeal was after the case had been tried. There an action to recover for legal services rendered in the courts of Missouri was filed in the district court of Shawnee County, Kansas. Attorneys employed by an administratrix to prosecute a certain claim in the courts of Buchanan County, Missouri, brought the action. In the title of the petition the plaintiffs described the defendant as “Mary K. Quinton, Administratrix of the estate of L. B. Kendall, deceased.” In the first appearance of the case it was held the attorneys had no claim they could enforce directly against the estate, but that the administratrix was individually liable for such services, and upon settlement of her accounts was entitled to reimbursement out of the estate for attorneys’ fees necessarily paid out as expenses of administration. The court further held, since the claim set up in the petition was personal and not an official liability of the defendant, reference to her official character should be regarded as descriptive of the person and could be rejected as surplusage, and the petition held to state a cause of action against the defendant as an individual.
The second appearance of the Brown case upheld the force of the prior decision. It held, among other things, that compensation for services of the attorney coud be personally recovered from the individual who had contracted for and received the benefit of such services while acting as administratrix of an estate.
In the Eyth case appeal was taken to the district court from an order and judgment of the probate court allowing the account of an administrator and directing an allowance for the expense of the administrator. In addition to an allowance for the administrator the district court entered judgment for his attorney in the sum of $200. On appeal to the Supreme Court it was held error to render such judgment in favor of the attorney. It was said the language of G. S. 1941 Supp., 59-1717 (presently appearing as G. S. 1949, 59-1717) was similar to the statute considered in the Brown cases, and the court held that an attorney employed by an administrator cannot enforce a claim for services directly against an estate, although the administrator is individually liable therefor and may be reimbursed out of the estate for attorneys’ fees necessarily paid out as expenses of administration.
The factual approach to the question in the foregoing cases did not present the difficulties which are now made apparent by an unqualified application of the rule. By the provisions of G. S. 1949, 59-1301, the “appropriate and necessary costs and expenses of administration” are designated as preferred claims of the second class where the assets of an estate are insufficient to pay in full all demands allowed against it. Such costs and expenses are in the same class as “the reasonable sums for the appropriate and necessary expenses of the last sickness of decedent, including wages of servants.” Under the provisions of 59-1717, supra, the allowance of compensation to an executor for the services of his attorneys is an expense of administration. It is clear expenses of administration are not debts of a decedent, and are not subject to the limita tion of the lien thereof, and payment may be decreed after the expiration of the lien for debts.
The provisions of 59-1717, supra, should be so construed that the fiduciary may safely procure the aid of legal advisers, and thus bind the estate for the payment of what may be found reasonable. The law contemplates that the representative will himself PAY the value of such services, and be reimbursed by receiving credit for the amount paid in settlement of his account. (2 Rartlett, Kansas Probate Law and Practice, § 1001, pp. 506 and 507.)
The appellants request the rule in the Brown and Eyth cases be critically re-examined concerning the construction of 59-1717, supra. They suggest the adoption of a rule which would permit an allowance of compensation for the services of an attorney in an estate to be made directly to the attorneys. They argue a reasonable position was taken by the Oklahoma court in the case of In re Estate of Wah-Kon-Tah-He-Ump-Ah, 128 Okla. 179, 261 Pac. 973, where the court said:
“Where an executor may be allowed for fees paid to or to be paid to an attorney, out of an estate, as expenses necessarily incurred in the preservation of such estate it is immaterial whether such item of expense be first allowed to the executor and by him paid to the attorney, or whether it be allowed direct to that attorney.” (Syl. ¶ 3.)
They argue it is not to the benefit of the attorneys or the estate when the allowance is made to the fiduciary for the benefit of the attorneys in the following situations:
“1. Where, as here, the fiduciary is a non-resident of Kansas.
“2. Where, as here, the fiduciary takes the allowance from the estate and refuses to pay his attorneys, as directed by the Court.
“3. Where the fiduciary is insolvent.
“4. Where the fiduciary dies after receiving the money from the estate and before paying the attorneys.
“5. Where the fiduciary dies before receiving the money from the estate.”
Notwithstanding the unquestioned right of an executor or administrator to employ attorneys to assist him in the administration of estates, and to be reimbursed for the expenses of counsel fees, the rule in most jurisdictions is that an attorney must look for compensation to the personal representative who employed him, in his individual and not in his representative capacity; and for his services the executor is personally responsible.
Many jurisdictions adhering to such rule, however, recognize exceptions when the attorneys’ claim is allegedly uncollectable from the representative, especially in cases of insolvency of the representative, or where the representative is absent from the jurisdiction. In such cases the attorney is generally entitled to be subrogated to the rights of the representative by proceedings in equity and may compel the representative to enforce such claim against the estate for the benefit of such attorney, thus directly enforcing the payment of his compensation out of the assets of the estate. (See, 100 A. L. R. 64, 72, 74.)
The facts presented by the record herein do not authorize the court to define the extent to which exceptions may eventually be recognized, but certainly justice demands that recognition be given the Kansas attorneys’ right of subrogation, where the fiduciary for whom services are rendered in an estate resides in another jurisdiction.
The probate court in the instant case, cognizant that it had a nonresident fiduciary conducting an ancillary administration, in the exercise of its equitable powers under 59-301, supra, wisely saw fit to name the attorneys for whose services the allowance of compensation was made to the executor in the order of final settlement, and no appeal having been taken from this order within thirty days it became final. By this order of final settlement, as we construe it, the probate court gave equitable recognition to the subrogation rights of appellants as the Kansas attorneys for the nonresident ancillary executor (appellee), who was obligated on his application for discharge to satisfy the probate court that he had complied with its order disbursing the funds allowed him as executor for the services of his attorneys to the named attorneys. On the record here presented the appellee’s failure to comply was in contempt of the order of the probate court.
The probate court in the exercise of its power- to compel the performance of the duty incumbent upon the fiduciary, to account for his payment to the attorneys designated in such final order, refused to discharge the executor.
Upon all of the facts, conditions and circumstances presented by the record in this case we think the executor is obligated to file his receipt showing payment of $15,000 to Stowell and Stowell, and satisfy the probate court that such payment had been made.
The judgment of the lower court is reversed. | [
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The opinion of the court was delivered by
Jackson, J.:
This is an appeal from Wabaunsee county relative to the proceeding in that county in the estate of Elizabeth Eileen Morgans, deceased. In the companion case of In re Estate of Morgans (41,992), ante, 188 Kan. 50, 360 P. 2d 1069, this day decided, the court has considered the appeal from the proceedings in Sedgwick county in this estate. Furthermore, the court has there held that the primary and exclusive jurisdiction to determine the question of venue for the probate of the will of this testatrix was in the Probate Court of Sedgwick county under G. S. 1959 Supp., 59-620, such court being the depository of the will of testatrix.
The above decision at least makes premature all the proceedings in Wabaunsee county. While the Probate Court of Wabaunsee county has now made a finding that the residence of the testatrix was in Wabaunsee county, and it would be easy and productive of some pecuniary saving to the parties for us to say that, inasmuch as the fact question of residence has been decided by the Wabaunsee county courts, the judgment should be affirmed. But such condonation of loose practice, particularly where it is in manifest violation of a controlling statute, results in waste rather than economy.
As pointed out in the opinion in the appeal from Sedgwick county, supra, our probate code provides for a primary and exclusive jurisdiction for ascertaining the venue for the probate of the estates of deceased persons. This prevents unseemly rivalry between the various' courts of the state. The best way to enforce such a salutary statute is to nullify proceedings in violation of it.
There would seem to be no necessity of stating a complete history of the proceedings in Wabaunsee county. The orders appealed from will be reversed and the case remanded for any further proceedings not inconsistent with this opinion and the opinion in the companion case, supra. The Probate Court of Wabaunsee county is directed to transmit the will of the testatrix back to the Probate Court of Sedgwick county. The estate need not as yet be closed in Wabaunsee county since the venue may be held to be in that county.
If the Probate Court of Sedgwick county should hold that the venue for the probate of the estate is in some county other than Wabaunsee, then the estate should be closed.
The orders and judgments appealed from are reversed and the case is remanded for such further proceedings as may not be in conflict with this opinion. | [
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The opinion of the court was delivered by
Price, J.:
This is an action to recover for damage to plaintiffs’ residence alleged to have resulted from excessive charges of dynamite used in excavating rock for a sewer ditch. Plaintiffs appeal from orders striking certain allegations from their second and third amended petitions.
The story as told by the first amended petition, which was filed on November 19,1959, is as follows:
Plaintiffs are husband and wife, and own and reside in their home in Topeka. On or about September 1, 1958, defendant construction company was engaged in constructing a sewer line running about one hundred feet west of their home, and employed defendant excavating company to excavate the ditch for the sewer pipe. It was alleged that the excavating company, for the purpose of speeding the work, used heavy and dangerous charges of dynamite with wanton and reckless disregard of injury to plaintiffs’ property; that rocks were thrown against their house and through the bathroom window; that the ground was shattered and cracked, causing large cracks in the basement walls, which were theretofore sealed and water resistant; that the basement now fills to overflowing with every rain; and that plaintiffs requested the workmen to cease using heavy charges of dynamite, but they refused to do so until the sheriff’s office was called and an officer sent out to stop them. As a result of the foregoing, plaintiffs suffered damage to their home and basement in the sum of $3,000, and damage from the loss of use of their basement in the sum of $360. It was further alleged that they should be allowed punitive damages in the sum of $3,000, due to defendants’ wanton and willful negligence. The prayer sought recovery in the amount of $6,360.
On November 27, 1959, the defendant excavating company filed a motion to make the first amended petition definite and certain in seven particulars. On the same date it also filed a motion to strike certain portions of the first amended petition. The record does not show any ruling on this motion to strike, but does show that on December 11, 1959, the motion to make definite and certain was sustained as to the last four grounds thereof, the effect of which ruling was that plaintiffs were directed to make their first amended petition more definite and certain by setting forth (1) wherein defendant excavating company acted with wanton and reckless disregard; (2) where, in relation to plaintiffs’ home, the ground was shattered and cracked; (3) matters concerning the sealed and water-resistant condition of the basement walls, and (4) the elements making up the alleged damage to the house.
The foregoing order also gave plaintiffs twenty days in which to file an amended petition.
On December 14, 1959, plaintiffs filed their second amended petition containing allegations similar to those in the first amended petition, and in addition alleged that with the knowledge of the defendants, and at their direction, dangerous charges of dynamite were discharged; that defendants knew, or should have known, that such charges so discharged would cause the ground to shake and vibrate about plaintiffs’ basement, causing injury thereto, and that plaintiffs orally informed defendants’ employees that the explosions from the charges of dynamite were causing their house to shake and vibrate, resulting in damage, and asked them to desist, which defendants refused to do. Then appear further allegations with respect to the damage caused to the basement walls as the result of the blasting, and these two further allegations:
“Defendants continued to use the same charges of dynamite for the purpose of speeding up the work and reducing their cost of construction, with wanton and reckless disregard of the injury that would result to the plaintiffs.
“Plaintiffs should be allowed punitive damages in the sum of $3,000.00.”
On January 6, 1960, defendant excavating company filed a motion to strike and expunge from the files the second amended petition on the ground it did not comply with the order of December 11, 1959, requiring plaintiffs to make their first amended petition definite and certain.
Also, on January 6, 1960, defendant excavating company filed a motion to strike from the second amended petition the two above-quoted allegations on the ground that such allegations, respectively, were “a naked conclusion and without any supporting facts,” and “totally unsupported by the allegations” of such second amended petition.
On February 5,1960, the motion to strike and expunge the second amended petition from the files was overruled, and the motion to strike the above-quoted allegations from such pleading was sustained. This order further recited that plaintiffs be allowed twenty days in which to file an amended petition in accordance with such order.
Pursuant to the last-mentioned order, plaintiffs, on February 8, 1960, filed their third amended petition containing allegations quite similar to those of the former petitions. This pleading, however, omitted the first of the two above-quoted allegations which was contained in the second amended petition and which was ordered stricken therefrom on February 5, 1960. It did, however, contain the allegation, “Plaintiffs should be allowed punitive damages in the sum of $3,000.00.”
On March 7, 1960, defendant excavating company filed a motion to strike and expunge from the files the third amended petition on the ground such pleading did not comply with the order of February 5, 1960, requiring plaintiffs to strike certain portions of their second amended petition.
On April 4, 1960, an order was made striking from the third amended petition the sentence, “Plaintiffs should be allowed punitive damages in the sum of $3,000.00.”
That portion of the motion, as such, to strike and expunge, does not appear to have been ruled on, and defendant excavating company was allowed twenty days in which to answer or otherwise plead.
On May 12, 1960, plaintiffs appealed from the order of February 5, 1960, striking the first of the two above-quoted allegations from the second amended petition, and from the order of April 4, 1960, striking from the third amended petition the sentence, “Plaintiffs should be allowed punitive damages in the sum of $3,000.00.”
It is noted that defendant construction company filed its answer to the first amended petition and did not participate in the numerous subsequent motions filed by defendant excavating company, and that although it is an interested party it is not a party to this appeal. Hereafter the appellee excavating company will be referred to as defendant.
We first are confronted by defendant’s contention that the appeal was not taken in time and should be dismissed. In fact, its brief is devoted solely to that one point, and the argument is this:
G. S. 1949, 60-3309, provides that an appeal shall be perfected within two months from the date of the judgment or order from which the appeal is taken. On February 5, 1960, the sentence,
“Plaintiffs should be allowed punitive damages in the sum of $3,000.00.’’
was ordered stricken from the second amended petition. On April 4, 1960, the identical sentence was ordered stricken from the third amended petition. The notice of appeal was filed May 12, 1960, which was more than two months after the order of February 5, 1960, and it is argued that plaintiffs could not extend the time for appeal by subsequently filing a similar pleading and then appealing from an order exactly like the first. In other words, it is contended that plaintiffs ignored the order of February 5, 1960; then pleaded the same language which was ordered stricken, in their third amended petition, and then attempt to circumvent the two-months appeal period by asking this court to compute the time from the date of the second order which was made on April 4, 1960.
We think the point is not well taken.
It is quite true the sentence in question was contained in both the second and third amended petitions, and that it was stricken from the second amended petition on February 5,1960. When that order was made plaintiffs were granted twenty days in which to file a third amended petition. They did so, and in such pleading omitted one of the two quoted allegations which had been ordered stricken from their second amended petition, but they again pleaded the sentence in question. It perhaps is correct to say that plaintiffs could have appealed from the order of February 5, 1960, but, having been granted permission to amend, they filed their third amended petition, which, of course, amounted to an acquiescence in the order of February 5th, and which precluded their appealing from that order.
Under the facts and circumstances disclosed by the pleadings before us, the true test of this matter appears to be whether, in their third amended petition, plaintiffs have pleaded facts sufficient to state a cause of action for punitive damages, thus rendering proper the inclusion in such pleading of the sentence in question which was stricken on April 4, 1960, and from which the appeal was taken on May 12, 1960. The allegations of the third amended petition, some of which have heretofore been mentioned, have been examined and in our opinion are sufficient to state a cause of action for punitive damages. The sentence in question was therefore improperly stricken, and we find no basis upon which to dismiss the appeal.
Under the provisions of G. S. 1959 Supp. 60-3314a, the order striking from the second amended petition the first of the two above quoted allegations also is reviewable. In view of other allegations in that pleading, we think it may not be said such stricken allegation was merely “a naked conclusion and without any supporting facts.” Without further discussion, therefore, our conclusion is that each of the orders from which this appeal was taken was erroneous, and the judgment is reversed. | [
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The opinion of the court was delivered by
Parker, C. J.:
The plaintiff, as administrator of the estate of M. Z. Hall, Jr., deceased, commenced this action against the defendant, Ross Taylor, by filing a petition in the district court of Stevens County on September 6, 1959, for the exclusive benefit of the next of kin, to recover damages for the alleged wrongful death of his intestate decedent.
The facts leading up to the institution of the action are not in dispute and may be briefly stated.
M. Z. Hall, Jr., was employed on the defendant’s farm in Stevens County from January, 1956, up to and including December 2, 1958. On the date last mentioned, while the defendant and Hall, in the course of his employment, were using liquefied petroleum gas to exterminate rodents from a building on the farm, Hall sustained serious bums when, for some undisclosed reason, the gas exploded or ignited. Two days later he died from the burns sustained as a result of the accident.
Soon after it was filed defendant attacked the petition by a motion to strike and a motion to make more definite and certain. When these motions were sustained in part and overruled in part plaintiff filed an amended petition. Defendant then filed a demurrer to such pleading which was overruled. Thereupon, and before defendant had answered, plaintiff filed a second amended petition containing two purported causes of action. The first cause of action asserted a claim for personal injuries and pain and suffering sustained by the decedent for the benefit of decedent’s estate. The second claimed damages for the exclusive benefit of the next of kin for the decedent’s wrongful death.
After filing a demurrer, not here involved, defendant filed an amended demurrer charging that the first cause of action of the second amended petition failed to state facts sufficient to constitute a cause of action and that such pleading contained two causes of action improperly joined. The trial court overruled this demurrer. Thereupon defendant perfected the instant appeal where, under a single specification of error, he charges that the trial court erred in overruling the portion of his demurrer, based on the ground the second amended petition contained two causes of action which were improperly joined.
At the outset it should be stated we are not here concerned with any questions relating to the survival of the cause of action for personal injuries resulting in the death of appellee’s intestate. All parties inferentially admit, if in fact they do not expressly concede, that since December 12, 1959, the law of this state has been that announced in Prowant, Administratrix, v. Kings-X, (on rehearing), 185 Kan. 602, 347 P. 2d 254, reversing Prowant, Administratrix, v. Kings-X, 184 Kan. 413, 337 P. 2d 1021, where it was held:
“A cause of action for personal injury survives the death of the injured party without any exception based upon the cause of death, all as provided in the statute relating to the survival of actions, G. S. 1949, 60-3201. The statements in the opinion of the case of McCarthy, Adm'r, v. Railroad Co., 18 Kan. 46, and all subsequent references to the binding effect of the erroneous rulings of the McCarthy case are specifically overruled.” (Syl.)
And in the opinion at page 603 said:
“. . . Be that as it may, the majority of- this court is convinced that the survival statute, G. S. 1949, 60-3201, means just what it says; that an action for personal injury survives the death of the injured party, and that the cause of the death has no bearing upon the survival of the action . . (185 Kan. 602, supra.)
Nor are we required to labor any questions challenging the right of the appellee to maintain separate actions for the purpose of recovering the relief claimed in the two causes of action set forth in the second amended petition. Appellee asserts, and appellant makes no contentions to the contrary, that an action for personal injuries, pain and suffering must necessarily be brought in the name of the personal representative, if the injuries result in death, for the benefit of the estate; and that under the provisions of G. S. 1959 Supp., 60-3203, the action for wrongful death must also be brought in the name of the personal representative, if one has been appointed, for the exclusive benefit of the decedent’s next of kin.
What has been heretofore related makes it crystal clear the only question of law presented by this appeal is whether two causes of action were improperly joined by the appellee administrator when, in the second amended petition, he joined a cause of action for wrongful death for the exclusive benefit of his decedent’s next of kin with a cause of action for decedent’s personal injuries for the benefit of the estate. Indeed, in his brief appellant asserts, to which assertion appellee impliedly agrees, that to his knowledge this court has never had the opportunity to pass on the question whether a cause of action for wrongful death could be united with a cause of action for personal injuries and pain and suffering, since no reason existed for this question to be raised until this court ruled (citing 185 Kan. 602, supra) that an action for personal injuries and pain and suffering survived the death of the injured party without exception.
In the main, as we understand them, appellant’s contentions are based upon the premise that even though appellee, as the duly appointed and acting administrator of decedent’s estate, is the only person authorized by statute to maintain an action on either of the causes of action set forth in the petition, he is nevertheless precluded from joining such causes of action in the same petition by reason of our joinder statute G. S. 1949, 60-601, which, so far as here pertinent, reads:
“The plaintiff may unite several causes-of action in the same petition. . . . But the causes of action so united must affect all the parties to the action, except in actions to enforce mortgages or other liens.”
In connection with his position appellant argues that appellee is the same person acting in two capacities in attempting to obtain relief for different beneficiaries. Conceding appellee is the same person, we do not agree he is acting in two capacities. Actually, he is acting as administrator of the estate in each instance under statutory authority which gives him the right to maintain the involved causes of action. Moreover, there is nothing in 60-601, supra, which precludes him from attempting to obtain relief for different beneficiaries when, by statute, he is specifically authorized to do so. In that situation, keeping in mind that under allegations of both causes of action appellee is the only proper plaintiff and that appellant is the only proper defendant, it cannot be successfully argued, when the provisions of 60-601 are literally interpreted, that the causes of action united in the petition do not affect all the parties to the action as required by its terms. Support for this conclusion, and refutation of appellant’s contention the heirs of appellee’s intestate decedent are necessary parties and hence affected by the action, is to be found in the provisions of G. S. 1949, 60-403, the pertinent portions of which read:
“An executor, administrator, ... or a person expressly authorized by statute, may bring an action without joining with him the person for whose benefit it is prosecuted. ...”
Further support for such conclusion is to be found in our decisions (See, e. g., White v. Toombs, 162 Kan. 585, 178 P. 2d 206, and Cornett v. City of Neodesha, 187 Kan. 60, 62, 353 P. 2d 975.) holding that in an action by a married woman for damages for personal injuries caused by the negligence of a third party, and also to recover damages for the benefit of her husband for the same negligence, as authorized by G. S. 1935, 23-205 (now G. S. 1949, 23-205), it is not improper for her to frame her petition in two causes of action.
In our opinion, what has been heretofore stated is all that is required to sustain the trial court’s action in holding that the second amended petition was not subject to a demurrer on the ground of improper joinder of causes of action. However, this decision need not be premised solely upon that basis. The majority rule, to which we adhere where the question has been considered and determined in foreign jurisdictions under conditions and circumstances similar to those here involved, as appellant with commendable candor frankly concedes, is that a cause of action for wrongful death and a cause of action for damages accruing under the survival statute may be joined. See 16 Am. Jur., Death, § 277, p. 193.
For a well considered decision, where our decisive question was considered under like, if not identical circumstances, see Nemecek v. Filer and Stowell Co., 126 Wis. 71, 105 N. W. 225, where it is said:
“. . . It is settled in this state that a cause of action for personal injuries survives the death of the injured person; that it is to be prosecuted by the personal representative; that the damages recovered in such action are confined to those suffered by the deceased prior to his death, and go into the general fund of the estate of the deceased; that the action for the death is also to be prosecuted by the personal representative; that the damages in this latter action are limited to the pecuniary loss sustained by the relatives of the deceased named in the act, and must be paid over by the personal representative to such relatives. Lehmann v. Farwell, 95 Wis. 185, 70 N. W. 170; Brown v. C. & N. W. R. Co., 102 Wis. 137, 77 N. W. 748, 78 N. W. 771. We have been unable to perceive any good reason why these two causes of action may not be properly joined. It is true that this court has held that actions which do not affect the plaintiff in the same capacity cannot be joined in the same action. Hawarden v. Y. & L. Coal Co., 111 Wis. 545, 87 N. W. 472. That, however, is not this case. The plaintiff sues as administratrix in both causes of action. The elements of damages are different, the amounts of damage must be separately assessed by special verdict, and the sums recovered must go into separate funds; but, as was suggested in the Brown case, supra, none of these considerations involve any serious difficulties in the trial of the two causes of action together. It would seem to be better for both parties to dispose of the entire litigation in one action and upon one trial. The law discourages rather than encourages multiplicity of actions. There is little direct authority on the subject, but such as there is favors this view. Ranney v. St. J. & L. C. R. Co., 64 Vt. 277, 24 Ad. 1053; Ill. Cent. R. Co. v. Crudup, 63 Miss. 291.” (p. 72.)
For a general discussion of the entire subject, where the majority and minority rules are discussed at length and numerous authorities cited, see 35 A. L. R. 2d, Anno. 1377 to 1393, incl.
What has been previously stated and held requires an affirmance of the trial court’s action in overruling the demurrer to the second amended petition and it is so ordered. | [
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The opinion of the court was delivered by
Price, J.:
This is a workmen’s compensation case. The claimant appeals from an alleged inadequate award.
Recause of the disposition we feel compelled to make of this case, a very brief resume of the record will suffice.
On April 15, 1959, while working as a common laborer for respondent construction company, claimant fell from a bridge framework. He landed on his head and back and was rendered momentarily unconscious. He was hospitalized for two weeks. His doctor found he had sustained a “cerebral accident.” Later he was examined and treated by an orthopedic specialist who prescribed rehabilitation exercise. Apparently claimant felt such treatment was of no benefit, and on June 15, 1959, the doctor released him for light work, with a thirty per cent disability. Apparently “light work” did not appeal to claimant. In any event, it appears that later he was examined by other doctors, one of whom, on September 10, 1959, reported that he could find no “subjective” findings of permanent disability. In the meantime claimant was complaining of headaches, backaches, dizziness .and blackouts. In the spring of 1960 a “neutral” physician, an orthopedic specialist from Hays, examined him and his findings were that claimant suffered a thirty per cent general bodily disability. The record also shows that claimant had on three previous occasions received injuries while working for other employers and had received compensation therefor.
The commissioner found that claimant suffered temporary total disability from April 15,1959, to March 18,1960, followed by a thirty per cent temporary partial general bodily disability for a period of not to exceed the remaining 367.86 weeks — and made an award accordingly.
The respondent appealed from the findings and award.
On December 9, 1960, the district court, having had the matter under advisement, prefaced its findings and decision with the following remarks:
“I have a Memorandum Opinion, but prior to delivering that I wish to say just one or two things. The Court is not impressed by the claim. In fact, the Court was concerned about the fact that it seems to appear that the claimant is virtually making a career of claims, and the order of the Compensation Commissioner is modified to this extent and I will read my findings:”
“Findings
“The Court finds, in addition to the admission of the parties, that the Claimant sustained some personal injury by accident on the date alleged; that the accidental injury arose out of and in the course of his employment with the Respondent; that 7.87 weeks’ compensation was paid in the amount of $267.24; that this represents the total amount of compensation due the Claimant for the injury so sustained.
“It is determined that Respondent shall pay all hospital and medical bills incurred prior to April 15, 1959.”
Claimant has appealed to this court and his specifications of error are that there was no substantial competent evidence to sustain the trial court’s decision; that the decision was in whole or in part contrary to the evidence, and that the decision was given under the influence of passion and prejudice.
There appears to be no question but that claimant sustained an accidental injury which arose out of and in the course of his employment — as found by the district court. Although not specifically so stated, it would appear the court found that all disability ended with the 7.86 weeks’ period — that being the precise period for which compensation had been paid. Our appeal statute, G. S. 1959 Supp. 44-556, provides that the district court shall have jurisdiction to grant or refuse compensation, or to increase or diminish any award of the commissioner, as justice may require. Within the scope of the record made before the commissioner the district court is author ized to make its own findings of fact and is not bound by the findings of the commissioner. (Resnar v. Wilbert & Schreeb Coal Co., 132 Kan. 806, syl. 2, 297 Pac. 429.) Included, of course, in that grant is the right of the district court to weigh tire evidence. (Vigola v. Labor Exchange Coal Co., 145 Kan. 889, 67 P. 2d 421; Burk v. American Dist. Tel. Co., 160 Kan. 519, 526, 163 P. 2d 402.) On the other hand, in fairness to a district court, it should be stated that our compensation act discloses no statute which compels the court to make detailed findings of fact which resolve the disputed testimony of witnesses. (Thompson v. Swenson Construction Co., 158 Kan. 49, 56, 145 P. 2d 166.)
Our attention is called to the fact that here the findings of the district court state that respondent is to pay all hospital and medical bills incurred prior to April 15, 1959. Obviously that is erroneous for that was the date of the accident. It is logical to conclude, however, the court intended the date to be June 15, 1959, because it also found that the compensation paid to that date was the total amount of compensation due for the injury so sustained.
With full recognition of the elementary rule — which requires no citation of authority — that findings made by a district court in a compensation case, if supported by substantial competent evidence, are conclusive on appeal, and that this court is to view the record in the light most favorable to the prevailing party below, we nevertheless are of the opinion that this case should be returned to the district court in order for it to make more specific findings based on the evidence before the commissioner. Our conclusion in this matter is not to be construed as indicating an opinion one way or the other as to the merits and propriety of the award made by the commissioner. That is within the province of the district court after reviewing and weighing the evidence. The extent of our holding is that the district court’s findings should have been more clear and specific — in view of the record presented — so as to enable this court to pass upon the questions presented. The cause is therefore reversed and remanded. | [
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The opinion of the court was delivered by
Robb, J.:
An action for separate maintenance was commenced by plaintiff in the trial court pursuant to G. S. 1949, 60-1516. Defendant answered and cross-petitioned for divorce. By reason of a stipulation between the parties, plaintiff, during the trial, amended her petition to seek a divorce and defendant withdrew his cross-petition. At the close of the trial, plaintiff was granted a divorce, permanent alimony of $5,000, $150.00 a month child support, and custody of the minor child except that defendant was to have custody of the child for two weeks during the summer months and three days at Christmas time but not Christmas day. In addition, defendant was given visitation privileges at reasonable times while plaintiff had custody. A division of the property was also decreed by the trial court.
Plaintiff perfected her appeal from that part of the trial court’s judgment which decreed her alimony in the sum of $5,000 payable at the rate of $100.00 a month until paid in full, and from the child support order of $150.00. Three questions are here for decision. Did the trial court err in fixing the amount of alimony, in awarding the amount of child support, and in denying plaintiff’s motion for new trial?
The parties were married on October 11, 1947. Their son was born in 1949, and in 1951 they moved to Great Bend where defendant became general manager of the Central Kansas Electric Cooperative, Incorporated, from which position for the years 1958 and 1959 he received an annual salary of $15,050.00, an automobile, and an expense account.
Briefly, according to defendant’s evidence, trouble started between the couple in 1951. In 1954 they separated but four months later in 1955, they bought and furnished a home and began a reconciliation. Relations were reasonably amicable until the latter part of 1956 or the first part of 1957 when plaintiff reverted to an earlier habit of intemperate drinking and the use of ridiculing language toward defendant and his family, to which he had objected before the 1954 separation. In addition, she accused him of infidelity, swore at him, and called him bad names which caused him to slap her on one occasion.
On the other hand, plaintiff’s evidence, consisting of her own testimony, that of her brother, and of a George W. Robinson, showed that during 1959 defendant had been guilty of infidelity with another woman; that plaintiff had requested defendant to discontinue the affair because it was wrecking their home but this had availed plaintiff nothing.
After the trial court entered its judgment, as above stated, plaintiff filed a motion for new trial which included complaint of the property settlement. On February 3, 1960, when overruling the motion for new trial, the trial court made the following statements and they became a part of the record:
“Mr. McGrath, the court will take exception to your conclusion that there was an equal division of property. As to the household goods, when that determination was made to pass those to the plaintiff, the court made a determination as to the minimum value of those goods which the court thinks was a conservative value. Additionally, you will remember, as Mr. Hardman stated, all of that long schedule of indebtedness, with the exception of the mortgage on the home, the court ordered the defendant to pay. It is not an equal division of property, it is a division of property that is unequal, in favor of the plaintiff in the action. As Mr. Hardman has indicated, the amount of child support is considerably a higher amount than is ordinarily set in this district, at least, and I am sure, in this general area, for the support of one child. The court considered that a liberal provision. The court considered the property settlement and alimony a fair provision, not liberal or unliberal, just a fair provision.
“The record may show that in this case the court gave some credence, considerable credence, to what the court believes is a proper consideration, namely, that the plaintiff is an educated woman. She is qualified for journalistic employment. She apparently has some interest in becoming a lawyer, how much interest the court could not be sure about. If there is a genuine interest, she is able on the alimony specified by the court, to complete her legal education and have some money during the beginning of employment. The court assumes that the financial straits faced by an attorney now are considerably less severe than they were when some of us started the practice of law.
“The court would almost think from your argument, Mr. McGrath, that it is founded upon the premise that it is the sole duty of the defendant to support the child and that it is the sole duty of the defendant to support the plaintiff.
“The court feels that in making the orders, all circumstances were considered. The court is going to mention one circumstance that was given some consideration and it hasn’t been mentioned by the court up to this time.
“The court had the opportunity to observe the demeanor and attitude of the plaintiff in the action. There was testimony introduced in this case, and there was some indication along the line when the plaintiff herself was on the stand, tending toward the proposition that the plaintiff was an uncooperative person as far as the defendant was concerned, and had been for quite a number of years. From the attitude of the plaintiff in court, the court felt that certainly the plaintiff had an uncooperative attitude toward the mutual problems that the parties faced in this divorce action and relative to the child. That lent some credence to the proposition that the breaking of this home was years in the making.”
Defendant first questions plaintiff’s right to be heard on this appeal because after she and defendant had agreed on the date he was to have custody of their son for two weeks during the summer of 1960 — from August 17 to August 31 — the plaintiff on August 16, 1960, according to a letter received by her attorney on the morning of August 17, 1960, took their son by plane to New York City. Defendant contends plaintiff was thereby guilty of contemptuous violation of that court’s order from which she is now appealing. The authorities cited by defendant do not appear to support his contention because they are either distinguishable from this case, or the issues therein are not the same as the issue presently before us. We shall, therefore, go directly to the questions involved in plaintiff’s appeal.
Did the trial court abuse its discretion in determining the amount of alimony? First, we must examine the pertinent portions of G. S. 1949, 60-1511, having to do with allowance of alimony:
“When a divorce shall be granted by reason of the fault or aggression of the husband,' the wife . . . shall be allowed such alimony as the court shall think reasonable, having due regard to the property which came to him by marriage and the value of his real and personal estate at the time of said divorce; which alimony may be allowed to her ... by decreeing to her such sum of money, payable either in gross or in installments, as the court may deem just and equitable. . . .”
In an early per curiam opinion of this court (Packard v. Packard, 34 Kan. 53, 56, 7 Pac. 628) where the cause was being remanded for new trial as to alimony and child support because they were held wholly inadequate by this court and the trial court would therefore have to determine the amounts thereof again, a cardinal rule of this jurisdiction was prescribed:
“As the divorce to the wife was granted by reason of the fault and aggression of the husband, tire wife should be allowed such alimony as would maintain her and her children in as good a condition as if she were still living with her husband.” (p. 56.)
The foregoing rule from the Packard case was repeated in Deeds v. Deeds, 108 Kan. 770, 773, 196 Pac. 1109, where other facets of the rule as they had been developed in opinions written between the Packard and Deeds cases were also quoted and discussed. Summarized, pertinent statements therefrom are: Awarding of alimony and adjusting of financial matters between divorced persons are within the discretion of the trial court; no fixed standard controls the determination of permanent alimony but rather, it rests in the sound discretion of the trial court, is judicial in character, and therefore is not liable to appellate review except where it is evident there has been a clear case of abuse of discretion; as that term is ordinarily used, it implies not merely an error in judgment, but perversity of will, passion, or moral delinquency when such abuse is exercised to an end or purpose not justified by, and clearly against, reason and evidence. (p. 774.) See, also, the more recent cases of Krueger v. Krueger, 174 Kan. 249, 251, 252, 255 P. 2d 621; Mathey v. Mathey, 175 Kan. 446, 452, 264 P. 2d 1058; Grimes v. Grimes, 179 Kan. 340, 344, 295 P. 2d 646; Nichols v. Nichols, 186 Kan. 295, 298, 349 P. 2d 929.
Plaintiff places much emphasis on Flautt v. Flautt, 126 Kan. 21, 24, 266 Pac. 746, and Mann v. Mann, 136 Kan. 331, 333, 334, 15 P. 2d 478, in both of which are set out the general rules as to the trial court’s discretion regarding alimony. While these two cases are somewhat similar to each other and to the former decisions we have discussed and while it is true they throw some light on the only question we have to answer, each contains distinguishing facts and circumstances. We, as an appellate court are ever mindful of the well-established rule that each case must stand on its own facts and nothing in this record compels us to depart therefrom.
In view of the trial court’s statements at the time it ruled on the motion for new trial, and the abundance of evidence both favorable and unfavorable to each party, we are constrained to say that the trial court judicially exercised its discretion in making the alimony allowance and, therefore, its judgment will not be disturbed on appeal.
Was the child support award sufficient? Considering previous statements made herein, we think plaintiff failed to establish a clear abuse of judicial discretion; it appears to us the allowance of child support by the trial court was a proper exercise of judicial discretion and that order will not be disturbed. Another compelling reason for not disturbing the child support order is that the trial court, of course, retains jurisdiction thereof and may at any time modify the order to take care of any future changed conditions affecting the best interests and welfare of the child. (Krueger v. Krueger, supra; Duffy v. Duffy, 176 Kan. 112, 115, 268 P. 2d 931.)
Here again the appealing party sought to have this court consider highly conflicting evidence and reach findings of fact different from those of the trial court. This we are not permitted to do. (Bunger v. Bunger, 187 Kan. 642, 359 P. 2d 1113.)
The last question involving the trial court’s overruling of plaintiff’s motion for new trial has been sufficiently answered heretofore as being proper, and no further discussion is necessary on that point.
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The opinion of the court was delivered by
Jackson, J.:
This appeal concerns an order made by the district court in a proceeding concerning the custody of a minor child. All of the details of the child’s life need not be given.
Dorothy Lee Neal is the child of William Neal and his former wife Mary Ruth (Neal) Gleason. Within a few months after Dorothy Lee’s birth, her parents were divorced and her custody was placed in her father, but she seems to have been raised by her father’s two sisters, Nellie Stack and Mrs. Hazel Imhoff. After her father’s remarriage, he took the child for a short time but on May 23, 1958, the district court entered an order in which it found that both the natural parents were unfit to have the custody and control of the minor child at that time, and the custody of Dorothy Lee was given to Mrs. Frances Stewart, Probation Officer of the juvenile court of Wyandotte county. In making this order, the district court was acting under the provisions of G. S. 1959 Supp., 60-1510. The probation officer placed Dorothy Lee with her aunt, Hazel Imhoff and her husband, Frank Imhoff. On August 31, 1959, Mrs. Stewart filed an application with the district court to obtain the court’s consent to an adoption of the child by her aunt and uncle, the Imhoffs.
The natural mother of Dorothy Lee objected to the court giving this consent to adoption and has appealed from the order overruling a motion for new trial filed after the court on January 22, 1960, gave consent to the probation officer to approve the adoption, all as provided for in section 60-1510, G. S. 1959 Supp.
The learned trial judge has kept track of this little girl for some eight or nine years. He knows the parties, and the mother offered no specific evidence of her fitness to have custody of the child. We believe certain comments of the trial court are quite pertinent to the question before this court. They are in part as follows:
“When a girl reaches the age of almost eight, as this girl has I think it is probably a poor time to make the first effort to get acquainted with her mother. Eight years have gone by. She has been well cared for. All you have to do is to look at her to see that.
“My primary interest is not the mother or the father of this child. It is true that they had this child, but in my opinion by their conduct both of them forfeited their natural rights. There may have been some extenuating circumstances for the mother. But I think, after having seen this young lady up before me repeatedly we have reached a point where we can no longer experiment with her life and her future because of the pleas of her mother and father, who I think had an adequate opportunity and did not take advantage of it.
“You are asking me to tear this girl away from a home she is established in and to give her to someone who, as far as she is concerned, is almost a stranger.
“I am convinced both of these parents had ample opportunity through the years. In the early stages of this fight, it was the aunts who fought the father. As I say, maybe that wasn’t the mother’s fault. Nevertheless, she wasn’t here. The only home this girl has had has been given by the Imhoffs. I am not consenting to any adoptions here today. All I do is give her guardian the right to consent if she feels it proper. But I will be frank, I have not heard anything here that is sufficient in my opinion to override the testimony and evidence which I have received during the last year that these people have given this girl a very good home.”
In view of the above, the order of the trial court is affirmed. | [
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The opinion of the court was delivered by
Jackson, J.:
The principal question to be decided here is whether the order appealed from constitutes an interlocutory appealable order.
This is the second time this court has considered this case, see Mayfield v. Hesston Mfg. Co., 187 Kan. 91, 353 P. 2d 789, where the court affirmed the trial court’s orders as to a demurrer to the amended petition, and also as to a motion to make definite and certain. The case, based upon a claim for money due plaintiff upon the basis of quantum meruit, was returned to the trial court for further proceedings.
It would appear that on August 18,1960, a journal entry of an order giving defendant thirty days in which to answer was filed under an agreement between counsel. Later, counsel for defendant obtained oral permission from the court to file instead a motion to make the petition definite and certain. As mentioned in the former opinion, p. 95, the present motion again really sought to malee the motion to make definite and certain perform the office of interrogatories filed under the discovery procedure found in the Federal Rules of Civil Procedure (Rule 31).
However, we might note that it would appear most difficult to think that the framers of our Civil Code had discovery in mind when they drew that part of G. S. 1949, 60-741 dealing with motions to make definite and certain. It is also sometimes interesting to compare the language of our section 60-741 with the language describing a motion to make definite under the federal rules in Rule 12 (e). The language is almost identical.
Upon the filing of the above motion, plaintiff immediately filed a motion to strike defendant’s motion and for judgment by default. The court denied the motion and plaintiff has appealed that order. Plaintiff argues strenuously that defendant had no right to file the instant motion at this stage of the proceedings and cites G. S. 1949, 60-703. However, the defendant obtained permission to file the motion. Whether such permission was within the discretion of the trial court need not be determined.
What plaintiff is now seeking is in effect an endeavor to strike an alleged sham or unauthorized pleading (G. S. 1949, 60-725). The motion to strike is in effect a motion to dismiss the defendant’s pleading and render judgment in favor of plaintiff on default of de fendant. The question of defendant’s right to answer over would be within the discretion of the trial court even if the motion to strike were sustained (G. S. 1949, 60-727).
It is not every interlocutory order of the trial court that may be appealed to this court before final judgment (G. S. 1949, 60-3302). Perhaps the plaintiff’s motion could be compared most nearly to a motion to dismiss defendant’s right to defend. But this court has always held that an order overruling a motion to dismiss was not appealable before judgment. The cases as to motions to dismiss are collected in the case of In re Estate of Sims, 182 Kan. 374, at 378, 321 P. 2d 185, and need not be set out in this opinion.
The appeal herein must be dismissed since it involves no appeal-able order. It is so ordered. | [
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The opinion of the court was delivered by
Rosen, J.:
Melvin Trautloff appeals from his convictions for one count of rape, K.S.A. 21-3502(a)(2), one count of aggravated criminal sodomy, K.S.A. 21-3506(a)(l), one count of aggravated indecent liberties with a child, K.S.A. 21-3504(a)(3), and one count of sexual exploitation of a child, K.S.A. 21-3516(a)(6).
J.M. is the mother of R.M., who was bom on April 19, 1999. J.M. first met Trautloff in February 2006, and they developed a romantic relationship. J.M. subsequently arranged to buy a car through Trautloff, agreeing to pay him $50 every 2 weeks. According to J.M.’s testimony, Trautloff agreed to reduce the payment by $50 if J.M. “gave him” R.M. for “sexual activity.” J.M. complied, and in July 2006 she “gave” R.M. to Trautloff, leaving the 7-year-old girl with him at his truck. J.M. testified to additional sexual liaisons involving herself, R.M., and Trautloff in July and August 2006.
Trautloff was admitted into the Franklin County jail on August 24, 2006, on a parole violation. He was subsequently transferred to Lansing Correctional Facility on the violation and was released on November 30, 2006. While he was incarcerated, Trautloff sent a number of letters to J.M., in which he made frequent graphic references to past and prospective sexual acts involving R.M.
At the end of April 2007, Trautloff, who was again incarcerated on parole violations, asked a friend to clean out his truck and house. In the house, the friend found “disturbing” letters, which she turned over to the local police department. Recordings were made of telephone calls from Trautloff to the friend and to J.M. In the course of these calls, Trautloff urgently asked the women to recover some items that he deemed to be veiy important from his premises. These items later proved to include the correspondence exchanged between Trautloff and J.M.
The State charged Trautloff with one count of rape, one count of aggravated criminal sodomy, one count of aggravated indecent liberties with a child, and one count of sexual exploitation of a child. J.M. pled guilty to rape, aggravated criminal sodomy, and attempted aggravated indecent liberties with a child. She testified against Trautloff at his trial.
J.M. testified that, following Trautloff s release from Lansing, he had sexual relations with R.M. some 20 times between December 1, 2006, and April 20, 2007. She recounted in detail several of the events. In February 2007, J.M. picked R.M. up from school in the morning and took her to meet Trautloff on at least three occasions. During each of these encounters, J.M. helped undress R.M., and Trautloff then engaged in digital and oral sex with R.M. before ejaculating in and on her vagina. At Trautloffs request, J.M. took photographs of some of these encounters on a cell phone camera and made at least one video recording. J.M. then helped R.M. clean up and get dressed, drove R.M. to get something to eat, and returned R.M. to school.
Forensic examiners were later able to retrieve sexually explicit photographs from J.M.’s phone, and these photographs were introduced into evidence. Based oh other photographs of Trautloff and R.M. and based on the testimony of witnesses, several of the photographs are of a girl who resembles R.M. and of a man who resembles Trautloff. The other photographs are close-ups of genitalia. At trial, Trautloff contended that he was not the man depicted in the photographs and that he was merely indulging J.M.’s fantasies in his letters. He denied having any sexual relationship with R.M.
The juiy found Trautloff guilty of all four charged counts, and the district court sentenced him to life without parole for the rape conviction, life without parole for the aggravated criminal sodomy conviction, life without parole for the aggravated indecent liberties with a child conviction, and life without parole for the sexual exploitation of a child conviction, with all sentences running concurrently. He timely appealed.
I. Did The District Court Err When It Sentenced Trautloff To Life In Prison Without The Possibility Of Parole?
Trautloff initially contends that he did not meet the prerequisite prior convictions required by statute for enhancing his sentence to life without the possibility of parole. This issue turns on the meaning of the statutory phrase “prior conviction event.”
On July 24, 1996, in case number 96CR122, Trautloff was convicted of one count of aggravated indecent liberties with a 9-year-old child, one count of aggravated indecent liberties with an 8-year-old child, and one count of rape of an 8-year-old third child. The Kansas Court of Appeals affirmed one of the two convictions of aggravated indecent liberties and the rape conviction but reversed the second aggravated indecent liberties conviction. State v. Trautloff, No. 77,772, unpublished opinion by the Court of Appeals filed April 24, 1998, rev. denied 265 Kan. 889 (1998).
In the present case, the district court relied on the two prior convictions that were upheld on appeal to sentence Trautloff to terms of life imprisonment without parole. The question presented on appeal is whether the prior convictions constituted a single conviction event or multiple conviction events, as defined by the legislature.
K.S.A. 21-4642(a) provides that aggravated habitual sex offenders “shall be sentenced to imprisonment for life without the possibility of parole.” The statute defines an aggravated habitual sex offender to be “a person who, on and after July 1, 2006: (A) Has been convicted in this state of a sexually violent crime . . . ; and (B) prior to the conviction of the felony under subparagraph (A), has been convicted on at least two prior conviction events of any sexually violent crime.” K.S.A. 21-4642(c)(l).
The statute defines “prior conviction event” as “one or more felony convictions of a sexually violent crime occurring on the same day and within a single count. These convictions may result from multiple counts within an information or from more than one information.” K.S.A. 21-4642(c)(2). Resolving this issue requires understanding the meaning of the words “within a single count.”
Interpretation of a statute is a question of law over which this court has unlimited review. State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008). An appellate court’s first task in construing a statute is to “ascertain the legislature’s intent through the statutory language it employs, giving ordinary words their ordinaiy meaning.” State v. Stallings, 284 Kan. 741, 742, 163 P.3d 1232 (2007). When a statute is plain and unambiguous, this court will not speculate as to the legislative intent behind it and will not read the statute to add something not readily found in it. In that situation, the court does not need to resort to statutory construction. It is only if the statutory language or text is unclear or ambiguous that the court moves to the next analytical step, applying canons of construction or relying on legislative history to construe the statute to give effect to the legislature’s intent. In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007).
As a general rule, criminal statutes must be strictly construed in favor of the accused. Any reasonable doubt as to the meaning of the statute is decided in favor of the accused. Nevertheless, this rule of strict construction is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. State v. Paul, 285 Kan. 658, 662, 175 P.3d 840 (2008).
The difficulty in the present case is the lack of harmony between two parts of the statutory definition of a prior conviction event. Trautloff s prior convictions were for multiple felonies involving sexually violent crimes contained in the same information; these convictions occurred on the same day but not “within a single count.” Because it is not possible for more than one felony conviction to occur within a single count, as the statute posits, it is appropriate to look into the history of the legislation and to apply the canons of statutoiy construction to determine the legislature’s intent.
A review of the legislative minutes relating to the enactment of K.S.A. 21-4642 in 2006 reveals no discussion of section (c)(2). It is likely that the legislature drew the “conviction event” language from older versions of the sentencing guidelines. See K.S.A. 1993 Supp. 21-4703; K.S.A. 1993 Supp. 21-4720(b)(4). K.S.A. 1993 Supp. 21-4720(b)(4) provided in part: “The total sentence assigned for a current conviction event cannot exceed twice the base sentence.” A conviction event was defined as “one or more felony convictions occurring on the same day and within a single court. These convictions may result from multiple counts within an information or from more than one information.” (Emphasis added.) K.S.A. 1993 Supp. 21-4703(c). The legislature deleted these references to conviction events in 1994. See L. 1994, ch. 291, secs. 49 and 59.
As a general rule, courts should read statutes to avoid unreasonable results and should presume that the legislature does not intend to enact useless or meaningless legislation. Board of Sumner County Comm’rs v. Bremby, 286 Kan. 745, 754, 189 P.3d 494 (2008). We conclude that the wording of K.S.A. 21-4642(c)(2) is the product of a typographical error and that the legislature intended to include convictions occurring on the same day and within a single court. We are confirmed in this conclusion by the legisla ture’s correction of the statute in L. 2009, ch. 70, sec. 3, changing “count” to “court.”
Trautloff clearly has two prior convictions, but the statute specifically addresses “conviction events,” not “convictions.” The legislature could have written the statute to define an aggravated habitual sex offender as an offender convicted of two prior crimes. The legislature instead chose to define the aggravated habitual sex offender as one who is convicted on at least two prior conviction events. The language of21-4642(c)(l) and (c)(2), when the sections are read together, supports a reading that a conviction on a single day of multiple counts, even involving multiple victims, constitutes only one prior conviction event. This interpretation is supported by this court’s prior analysis of K.S.A. 1993 Supp. 21-4703(c) in State v. Roderick, 259 Kan. 107, 114, 911 P.2d 159 (1996), holding that repealing the 1993 Supp. 21-4703(c) same-day, same-court rule changed the “double rule” in sentencing to a same-day, same-information rule.
The State argues that Trautloff failed to object to his criminal history at sentencing. While it is true that Trautloff conceded at sentencing that he had two prior convictions of sexual crimes, he did not concede that he had two prior conviction events.
This court may correct an illegal sentence at any time. K.S.A. 22-3504(1); State v. McCarley, 287 Kan. 167, 172, 195 P.3d 230 (2008). An illegal sentence, as contemplated by K.S.A. 22-3504(1), is a sentence imposed by a court without jurisdiction; a sentence that does not conform to the statutory provision, either in the character or the term of the punishment authorized; or a sentence that is ambiguous with respect to the time and manner in which it is to be served. State v. Davis, 283 Kan. 767, 769, 156 P.3d 665 (2007).
Trautloff had only one prior conviction event for sexually violent crimes, and the district court erred in sentencing him to life terms without the possibility of parole. The district court determined that Trautloff had a criminal history classification of E. The nature of the crimes, however, will possibly make him subject to K.S.A. 21-4643(b)(1), requiring a life sentence with a mandatory minimum term of imprisonment of not less than 40 years, subject to certain mitigating circumstances. Because Trautloff is currently 43 years old, the difference between mandatory life and mandatory 40-year sentences is unlikely to be great.
II. Was There Sufficient Evidence To Support A Conviction As Charged Of Sexual Exploitation Of A Child Under The Age Of Fourteen P
Trautloff maintains that the State failed to present sufficient evidence to support his conviction of sexual exploitation of a child. He specifically contends that the State failed to provide evidence that he had promoted the sexual exploitation of a child by displaying the pictures that J.M. and he took.
Although Trautloff bases this issue on the language of the complaint, he does not contend that the complaint was deficient. He does not argue that the complaint lacked an essential element; instead, he argues that the complaint was more specific than the statute requires and that the State failed to prove an element that it included in the complaint.
K.S.A. 21-3516(a) sets out six different forms of conduct that constitute sexual exploitation of a child. K.S.A. 21-3516(a)(6) prohibits “promoting any performance that includes sexually explicit conduct by a child under 14 years of age, knowing the character and content of the performance.” K.S.A. 21-3516(b)(2) defines “promoting” to mean “procuring, selling, providing, lending, mailing, delivering, transferring, transmitting, distributing, circulating, disseminating, presenting, producing, directing, manufacturing, issuing, pubhshing, displaying, exhibiting or advertising .. . (B) with intent to arouse or gratify the sexual desire or appeal to the prurient interest of the offender, the child or another.”
Count 4 of the second amended complaint charged Trautloff with sexual exploitation of a child. The complaint alleged that he promoted the performance of sexually explicit conduct by a child under 14 years of age “with the intent to arouse and satisfy the sexual desires or appeal to the prurient interest of the defendant, the child, or another and displayed said picture, an off grid felony, in violation of K.S.A. 21-3516(a)(6).” (Emphasis added.) The State filed the second amended complaint on the day the jury trial began. The same language appeared in the previous two versions of the complaint.
Trautloff maintains on appeal that the complaint correctly charged an alternative form of promoting, specifically emphasizing the element of displaying a picture or photograph, and the State failed to present evidence showing that he displayed a photograph. In its response, the State does not argue that the wording of the information was inadvertent and incorrect; the State instead contends that the jury heard sufficient evidence to convict Trautloff on a theory of displaying a picture with intent to arouse or gratify the sexual desire or appeal to the prurient interest of the offender, the child, or another.
When the sufficiency of the evidence is challenged in a criminal case, this court reviews all the evidence, viewed in the light most favorable to the prosecution, to determine whether the court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Gutierrez, 285 Kan. 332, 336, 172 P.3d 18 (2007).
The jury heard evidence about how the photographs were utilized after they were taken. J. M. testified that Trautloff “wanted me to get pictures of [R.M.] and he wanted to see her. . . . He didn’t care how I got them, in panties, T-shirts, nothing on, bras, just however I got them I got them.” J.M. testified that she assisted Trautloff in taking photographs of him engaging in sexual acts with R.M. “[s]o that he could look at them later and they would excite him.” She further testified that she had observed Trautloff looking at the photographs at the same Village Inn Motel where the photographs had been shot. In addition, she testified that she took a video of Trautloff at the Village Inn Motel at the same time that she took still photographs of Trautloff engaged in sexual conduct with R.M. Her testimony showed that she and Trautloff viewed the video together.
Webster’s Third New International Dictionary 654 (1993) includes in the definition of the transitive verb “display” the meaning “to spread before the view: exhibit to the sight or mind.” Black’s Law Dictionary 471 (6th ed. 1990) defines “to display a work” in the context of copyright law as “to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process.”
Not every factual nuance is susceptible to direct proof. A jury may rely on the evidence to make reasonable inferences about the behavior of a defendant. See State v. Tyler, 286 Kan. 1087, 1095, 191 P.3d 306 (2008). A jury that has convicted a defendant is presumed to have believed the State’s evidence and to have drawn from that evidence all inferences favorable to the State. State v. Aikins, 261 Kan. 346, 392, 932 P.2d 408 (1997).
The evidence showed that Trautloff arranged the settings for the visual recordings and was specific in his instructions to J.M. on when and of what he wanted tire recordings made. The only evidence that he also “displayed said picture” is that at one point he looked at the videotape with her. To satisfy this element, it is sufficient to meet the definition of “display” even if the audience consists of one or two persons. The evidence suffices to establish tire element of the crime that he displayed a picture by exhibiting or showing it with intent to arouse or gratify Iris own sexual desire or to appeal to the prurient interest of another.
III. Did The District Court Err By Giving A Jury Instruction On Sexual Exploitation Of A Child That Was Broader Than The Charging Document?
As noted in the discussion above, the State charged Trautloff with promoting the performance of sexually explicit conduct by a child under 14 years of age “with the intent to arouse and satisfy the sexual desires or appeal to the prurient interest of the defendant, the child, or another and displayed said picture, an off grid felony, in violation of K.S.A. 21-3516(a)(6).” Trautloff argues that the jury was instructed on a theory of sexual exploitation that was broader than the narrow language of the information charging him with displaying a picture.
The instruction relating to sexual exploitation of a child did not limit the element that the State had to prove to “displaying.” The instruction instead followed the broad language of the statute: “ Tromoting’ means procuring, selling, providing, lending, mailing, delivering, transferring, transmitting, distributing, circulating, dis seminating, presenting, producing, directing, manufacturing, issuing, publishing, displaying, exhibiting or advertising . . . with intent to arouse or gratify the sexual desire or appeal to the prurient interest of the offender, the child or another.” K.S.A. 21-3516(b)(2).
Trautloff did not object to the instruction as it was presented to the jury. An appellate court reviewing a district court’s alleged erroneous instruction to a jury applies a clearly erroneous standard where a party did not object to the instruction as given. An instruction is clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred. K.S.A. 22-3414(3); State v. Salts, 288 Kan. 263, Syl. ¶ 1, 200 P.3d 464 (2009).
A juiy instruction on the elements of a crime that is broader than the complaint charging the crime is erroneous. That error is excusable only where the substantial rights of the defendant are not prejudiced. State v. Wade, 284 Kan. 527, Syl. ¶ 3, 161 P.3d 704 (2007). It is the long-established rule in Kansas that instructions should be confined to issues made by the pleadings and should not be broader or narrower than the information. See State v. Booker, 197 Kan. 13, 15, 415 P.2d 411 (1966). The charging instrument must set out the specific offense alleged against the defendant in order to inform the defendant of the nature of the accusation against him or her and to protect the defendant from being convicted on the basis of facts that were not contemplated in the initial charges. See Russell v. United States, 369 U.S. 749, 767, 770, 8 L. Ed. 2d 240, 82 S. Ct. 1038 (1962).
The State charged Trautloff with the narrow offense of displaying a picture and then presented extensive evidence of other conduct that had much greater weight and emotional substance than the limited evidence relating to the display. Yet, the State did not seek to amend the complaint. The jury was instructed on the broadest possible theory of misconduct under the statute, and this court cannot rule out the possibility that the jury found Trautloff guilty of conduct that was not charged in the information.
By including the phrase “displayed such picture” in the complaint, the State limited itself to a theory that Trautloff committed only that version of the offense. The wording of a complaint is binding on the State in pursuing its theory before a jury. See, e.g., State v. Robinson, 27 Kan. App. 2d 724, 728, 8 P.3d 51 (2000) (conviction for aggravated robbery from the person of another reversed because information and jury instruction omitted words “or presence”; omission was “unfortunate,” because testimony was more than sufficient to support conviction for aggravated robbery from the “presence” of the victim).
The broad instruction allowed the jury to convict Trautloff of displaying or procuring or producing a photograph that included sexually explicit conduct by a child under 14 years of age. It did not compel the jury to find that Trautloff displayed a picture, as alleged in the complaint. As previously described, the evidence of “procuring” or “producing” a photograph was direct and overwhelming, while the evidence that Trautloff “displayed” a photograph or video was minimal and circumstantial. Although Trautloff did not object to the instruction at trial, the instruction was clearly erroneous because we cannot be confident that the jury convicted him only on the basis of the single alternative theory charged and instructed upon. There exists a real possibility that the jury would have rendered a different verdict if the district court had instructed only as to displaying.
TV. Did Trautloff s Sentence Violate Apprendi v. New Jersey Because It Was Based On A Trior Criminal History That Was Not Troven To A Jury Beyond A Reasonable Doubt?
Trautloff challenges the constitutionality of K.S.A. 21-4704(e)(1), which allows a sentencing court discretion in selecting among the low-, middle-, and high-end sentences based on mitigating and aggravating factors.
Trautloff was not sentenced under K.S.A. 21-4704(e)(l), which is part of the sentencing guidelines. He was sentenced under K.S.A. 21-4642, relating to mandatory life sentences for aggravated habitual sex offenders. The argument, as identified in the appellant’s brief, does not relate to the facts of this case.
It may be that Trautloff intended to argue that K.S.A. 21-4642 is unconstitutional because it increases a statutory minimum sentence based on facts not proven to a jury. This court has repeatedly rejected arguments of this nature. See State v. Conley, 287 Kan. 696, 700-01, 197 P.3d 837 (2008); State v. Warledo, 286 Kan. 927, 954, 190 P.3d 937 (2008); State v. Johnson, 284 Kan. 18, 23, 159 P.3d-161 (2007).
In light of the appellant’s argument and the firmly established law in this area, we find no constitutional violation.
Conclusion
The conviction for sexual exploitation of a child is reversed, and the case is remanded for a new trial of that count. The sentences for the remaining three counts are reversed, and the case is remanded for resentencing in conformity with this opinion. | [
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|
The opinion of the court was delivered by
Robb, J.:
This is an appeal from the judgment, order, and decision of the district court allowing the petition of the appellee, executor, for executor and attorney fees of $6,000 and overruling the appellants’ motion for new trial.
Three former appeals have been before this court involving principally either the estate of Charles E. Snyder or the estate of Isabelle H. Snyder, but irrespective of which estate was the subject of the appeal some mention was made of the other estate in determining the appeals. (In re Estate of Snyder, 179 Kan. 252, 294 P. 2d 197; In re Estate of Snyder, 181 Kan. 222, 310 P. 2d 944, and In re Estate of Snyder, 187 Kan. 373, 357, P. 2d 778.)
On September 4, 1948, Isabelle H. Renedict, a childless widow seventy-six years of age, married Charles E. Snyder, a widower sixty-nine years of age, who had three adult children: Elmore, James N., and Charles E. Snyder, Jr.
On May 3, 1953, Charles E. Snyder died testate and on June 19, 1954, Isabelle died testate, both in Leavenworth, Kansas. As was discussed in the former appeals, wills of both decedents were duly accepted for probate and are now in process of probation. We need not repeat those matters here.
Simultaneous with their marriage, the wills of Isabelle and Charles were executed and consent given, each to the other, where by reason of alternate-executor provisions of the wills, through one certain course of events James N., attorney, would be executor of Isabelle’s estate, and Elmore, Bank cashier and later president, would be executor of the estate of Charles E. Snyder.
That certain course of events which started when Charles E. predeceased Isabelle brought about the result above provided for and true to the generally selfish nature of human beings, trouble has been plentiful in this litigation ever since.
Etta V. Limbocker and Clarence Hulse were the sister and half brother, and the only heirs of Isabelle. Etta and Clarence first appeared in the probate proceeding of Isabelle’s estate in Etta’s petition, as heir, seeking probate of Isabelle’s estate and appointment of a special administrator. Their petition was successfully resisted. On petition of James N., Isabelle’s will was offered and accepted for probate.
Homer Davis, scrivener of both wills, supervised the execution and witnessing thereof; the record shows that Homer Davis handled the wills of these decedents exclusively and James N. had nothing to do with them; both Homer Davis and Lee Bond had represented James N. as executor of Isabelle’s estate after his appointment on March 10, 1955, and until Bond’s death in December, 1956. Since that time only Davis has appeared.
On March 1, 1957, by reason of a petition filed by James N., Fern E. Brunt was appointed special administratrix of Isabelle’s estate and he also sought to bring into her estate $60,000 of United States Treasury bonds and 166 shares of stock in the Manufacturers State Bank, and other matters.
On July 31, 1956, the probate court allowed James N. $2,000 as partial fee as the executor and allowed a $2,000 partial fee to each of the attorneys, Davis and Bond. On December 1,1959, on appeal, these fees were approved by the district court, except that Bond’s fee was ordered paid to Clara Hebling, as executrix under Bond’s will. Fern E. Brunt and Hazel V. Campbell are the administratrices of the estate of Etta and as such make their first appearance in the case in the present notice of appeal.
It will avail us nothing to extol the ability, rating and qualification of each lawyer that has been or is presently involved herein— either as a party or as an attorney — and no good purpose will be served by repeating the meticulous manner in which these lawyers have demonstrated their ability to present their case. They have become obsessed with their particular client’s ■ theory of the lawsuit. Few, if any, procedural steps have been overlooked or avoided, at least, since the deaths of Lee Bond and Edward Rooney, former senior members of the firms representing the contesting parties.
In affirming the fees allowed by the probate court, the district court, after trial, in its verbal decision on December 1, 1959, made clear its attitude when it, in substance, stated that according to statute practically anyone may serve as executor of an estate; James N. had been appointed as executor of Isabelle’s estate and his appointment had been affirmed in the district court and then in the supreme court; the heirs had disputed his right to serve and he had asserted that right; there were conflicting interests between the estates of Isabelle and Charles, and James and his attorneys did what honorable lawyers do — they went into court, pointed out these conflicting, interests, and asked for appointment of a special administrator; the court made such appointment and James and his attorneys stepped aside, as they had a right to do, because of their conflicting interests; no claim for compensation was made for anything they may have done in representing the estate of Charles; they claimed compensation only for services rendered Isabelle’s estate; in Leavenworth county services for simple, routine legal work in an ordinary estate, without litigation, generally amounted to six and one half percent for an executor and his attorneys; the evidence showed this estate would equal $100,000 and James and his attorneys were entitled to be paid for the appeals from his appointment as executor; they were also entitled to several thousand dollars for appealing to the supreme court— perhaps fifty or sixty percent of the routine fee; the trial' court stated the final fee would be far in excess of $6,500 and found the order of the probate court making the allowance of $6,000 attorney fees was reasonable and made the same allowance. The trial court further stated James and his attorneys' were not guilty of any bad faith or had they attempted to'represent conflicting interests.
The first question presented relates to the correctness of the trial court’s allowance of $2,000 to James N., $2,000 to his attorney, Homer Davis, and $2,000 to his attorney Lee Bond.
G. S. 1949, 59-1504, relating to the compensation of an executor of a decedent’s estate in part provides:
“. . . Whenever any person named in a will or codicil defends it, or prosecutes any proceedings in good faith and with just cause, for the purpose of having it admitted to probate, whether successful or not, or if any person successfully opposes the probate of any will or codicil, he shall he allowed out of the estate his necessary expenses and disbursements in such proceedings, together with such compensation for his services and those of his attorneys as shall be just and proper.”
The above statute must be considered along with the ruling on the cross-appeal in In re Estate of Rooney, 186 Kan. 200, 203, 349 P. 2d 916, and G. S. 1949, 59-1717 which provides:
“Every fiduciary shall be allowed his necessary expenses incurred in the execution of his trust, and shall have such compensation for his services and those of his attorneys as shall be just and reasonable. At any time during administration the fiduciary may apply to the court for an allowance upon his compensation and upon attorneys’ fees.”
Since our decision in In re Estate of Snyder, 179 Kan. 252, 294 P. 2d 197, settled the question that James N. could accept the decedent’s appointment as executor, and in view of the above-quoted statutes and the Rooney case, supra, we think the trial court was correct in its allowance of the partial fees to the executor and the two attorneys.
It is difficult to see how appellants, Fern, Hazel, and Clarence, can be heard to complain about James having done so much work as executor of Isabelle’s estate when they have been the cause of the appeals following the original allowance of fees by the probate court. We are not impressed with appellants’ proposition that James and his attorneys should not be paid for defending Isabelle’s will and the appointment of her named executor thereunder when appellants are and have been active opponents of the will.
So far as appellants’ argument of “fee-splitting” is concerned, the case of Watson v. Woodruff, 154 Kan. 61, 114 P. 2d 864, appears to approach more closely the purported “fee-splitting” contention than does our present case. However, this court held that none of the contracts therein made were trafficking in the estate by any of the three lawyers for their individual advantage, or to the disadvantage of the beneficiaries under the will, nor were they contrary to public policy. The Watson case was later cited in Grayson v. Pyles, 184 Kan. 116, 118, 334 P. 2d 341.
Appellants contend they were erroneously limited in their cross-examination by the trial court upon that court’s theory such cross-examination was improper because it went beyond the direct examination and was an attempt to set up defensive matters. Our decisions uphold the correctness of the trial court’s ruling. (State v. Long, 103 Kan. 302, 175 Pac. 145; 5 Hatcher’s Kansas Digest, rev. ed., Witnesses, § 92, p. 531; 9 West’s Kansas Digest, part 2, Witnesses, § 269, pp. 422, 423.)
The trial court did not err in any of the particulars complained of or in its judgment affirming the allowance of partial fees made by the probate court.
Judgment affirmed. | [
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The opinion of the court was delivered by
Parker, C. J.:
Plaintiff commenced this action in the district court of Atchison County by filing a petition in which she sought to recover damages alleged to have been sustained in an automobile collision on a public highway. The defendant answered and cross petitioned for damages to his automobile.
On the trial of the issues, joined by pleadings which are not involved, the jury returned a general verdict finding that neither party should recover and, in its answers to submitted special questions, found that the plaintiff did not take reasonable steps to avoid the collision and that she suffered no permanent injury as a result of the accident.
Plaintiff’s motion for a new trial was overruled and she perfected the instant appeal wherein she assigns numerous errors on the part of the trial court.
The evidence adduced during the trial was highly conflicting. The facts essential to disposition of the questions raised on appeal may be stated thus:
On the date of the accident plaintiff was driving west on Highway 73, about nine miles west of the City of Atchison, Kansas. As she was approximately 500 feet east from the crest of a hill she noticed a car turn onto the highway from a side road and proceed east. The side road was approximately at the crest of the hill. Defendant then came over the crest of the hill on the highway from the west. In an effort to avoid the automobile which had turned on the highway defendant drove about two feet north of the center line of the highway. The highway was 24 feet in width with an extending grass shoulder. The collision between defendant’s automobile and the automobile which plaintiff was driving followed.
In view of the findings of the jury it will not be necessary to attempt to glean from the conflicting testimony other detailed facts, except as they are considered in connection with plaintiff’s contentions.
Plaintiff first complains of the abuse of the privilege relationship existing between physician and patient. Prior to trial defendant filed a motion to take the deposition of Dr. H. L. Tospon, one of plaintiff’s physicians, residing in St. Joseph, Missouri. The plaintiff moved to restrain the taking of the deposition for the reason the testimony would relate to confidential matters between doctor and patient. The court authorized the taking of the deposition, reserving to plaintiff the right to register objections to be ruled upon at the time of the trial. The plaintiff's contention that the taking of the deposition should have been suppressed lacks merit and cannot be upheld.
The General Statutes of Kansas specifically provide when depositions may be used in an action (G. S. 1949, 60-2819) without any express limitation as to when they be taken, so long as they are taken after service of summons upon the defendant. (G. S. 1949, 60-2820 and 60-2821.) The deposition of any witness may be used when the witness does not reside in the county where the action or proceeding is pending (60-2819, supra). The witness must, of course, be competent to testify. It is the use rather than the taking of the deposition that is restricted. Whether the use of the deposition is proper may depend on many contingencies occurring during the trial. However, it goes without saying, a deposition cannot be used unless it is taken. The taking, therefore, should not be unduly restricted.
The privileged communication statute (G. S. 1949, 60-2805) does not cover communications made by a patient to his doctor other than those that relate to the disease or ailment which the physician was called to treat. (K. C. Ft. S. & M. Rld. Co. v. Murray, 55 Kan. 336, 40 Pac. 646; State v. Townsend, 146 Kan. 982, 73 P. 2d 1124.) Furthermore, the privilege may be waived. Communications made in professional confidence are not incompetent. See, e. g., State v. Cofer, 187 Kan. 82, 353 P. 2d 795, where it is said:
“Generally speaking, it may be said the statute contemplates that the patient may consent to his physician testifying and therefore no question of public policy is involved. It is elementary that communications made in professional confidence are not incompetent, and that if a third person hears them he may testify. The disqualification is imposed upon the physician only, and not for his benefit or for the benefit of the public, but merely is a privilege to the patient, which privilege, like many others, may be waived. (Insurance Co. v. Brubaker, 78 Kan. 146, 155, 96 Pac. 62, 130 Am. St. Rep. 356, 18 LNS 362; Flack v. Brewster, 107 Kan. 63, 65, 66, 67, 190 Pac. 616, and Chaffee v. Kaufman, 113 Kan. 254, 256, 214 Pac. 618.)” (pp. 89, 90.)
The trial court cannot anticipate in advance of the presentation of the evidence at the trial what evidence may or may not be admissible. For this reason, if no other, the parties should not be restricted in their efforts to make available testimony that may become admissible at the trial, if it is material to the issue.
The deposition of Dr. Tospon was taken. He testified he had occasion to treat a Mrs. Soden and took some X-rays. The X-ray pictures were produced at the time the deposition was taken but were not introduced as evidence. The record on this point discloses plaintiff’s counsel objected for the reason the questions required the doctor to divulge confidential relations, whereupon counsel for defendant announced he had no further questions.
During the course of the trial plaintiff testified that after the accident she was treated by her family physician. She also stated she was treated by a chiropractor but he did not help her and that she then went to Dr. Tospon in St. Joseph, Missouri, for treatment. She further testified that she was next treated by Dr. Brady, who testified on her behalf.
Defendant read the deposition of Dr. Tospon in evidence. Plaintiff contends this was error. We cannot agree. The deposition did nothing more than support the testimony of plaintiff to the effect that she was treated by Dr. Tospon. The nature or purpose of the treatment was not disclosed. It would serve no useful purpose to extend this opinion by discussing defendant’s contentions that plaintiff’s testimony as to her doctors and their treatment waived her right to claim privilege.
Plaintiff complains because defendant made no opening statement on his cross-petition for damages to his automobile and plaintiff’s motion for judgment on the pleadings as to the cross-claim was therefore erroneously overruled.
We covered this question in Stewart v. Rogers, 71 Kan. 53, 80 Pac. 58, where we held:
"The statute authorizing a party upon whom rests the burden of the issues briefly to state his case and the evidence by which he expects to support it is permissive only. He may or may not make such statement, at his own election. The issues are made not by such statement but by the pleadings. If a party elect to make such statement, and there be a substantial variance between it and his pleading, it is not a sufficient ground upon which to base a motion for judgment in favor of the opposite party, unless such statement in effect admits facts which preclude the party’s right of action or defense as stated in his pleading.” (Syl. jf 2.)
The pleadings not the statement of counsel make the issues. Opening statements are permissive and not obligatory. (Hengel v. Thompson, 176 Kan. 632, 272 P. 2d 1058.)
Moreover, it is to be noted, the jury allowed defendant nothing on his cross-petition. Under these circumstances it cannot be successfully argued plaintiff’s rights were prejudiced because defendant failed to mention in his opening statement that he was making a cross-claim.
The plaintiff complains of the court’s failure to excuse two jurors for cause. The daughter-in-law of one juror worked for Robert Duncan, one of the defendant’s counsel. Another juror stated he considered Duncan as his attorney. The trial court examined the jurors at some length to determine whether they could render a fair and impartial verdict. Both jurors were removed on plaintiff’s peremptory challenge. We find no abuse of the court’s discretion in refusing to discharge either of these jurors for cause.
The qualifications of jurors is a matter that must be left to the sound discretion of the trial court. The controlling rule is stated in Critchfield v. Ernzen, 181 Kan. 284, 310 P. 2d 930, where it is said:
“On voir dire examination two prospective jurors admitted one of appellant’s counsel was involved in litigation adverse to their respective interests. Each such juror was challenged for cause. These challenges were overruled on the ground neither juror had admitted prejudice against the appellant. Thereafter both such jurors were excused on peremptory challenges and subsequently no objection was made to the qualifications of any of the jurors who participated in the trial. In the face of what has just been related we are unable to agree with appellant’s contention the trial court abused its discretion or committed reversible error in refusing to disqualify the jurors in question.
“See Parnell v. Security Elevator Co., 174 Kan. 643, 258 P. 2d 288, where it is held:
“ ‘Whether a prospective juror is qualified is addressed to the sound discretion of the trial court on the juror’s voir dire, and the trial court’s determination will not be disturbed unless it appears it abused its discretion.’ (Syl. f 1.)
“And Bailey v. McLeod, 143 Kan. 638, 56 P. 2d 460, which reads:
“ \ . . More than that, Olson did not sit as a juror in the trial of this case, defendants having excused him by a peremptory challenge; hence the error, if any, of the court’s ruling on the challenge for cause becomes of but little importance, since no complaint is made of the qualifications of any juror who participated in the trial. (State v. Hooper, 140 Kan. 481, 502, 37 P. 2d 52.)’ (p. 640.)
“See, also, State v. Springer, 172 Kan. 239, 239 P. 2d 944, where it is said:
“ ‘The constitutional guaranty is that an accused shall be tried by an impartial jury. The matter of peremptory challenges is merely statutory machinery for carrying out and securing the constitutional guaranty. Error in overruling a challenge to a juror is not ground for reversal unless the accused was prejudiced thereby. The real question is: Was the jury which tried defendant composed of impartial members? In the absence of any objection on the part of defendant to any member as it was finally drawn to try him we cannot say it was not impartial.’ (p. 245.)” (pp. 289, 290.)
The plaintiff objects to the court’s instruction No. 15 which reads as follows:
“You are instructed that the driver of a motor vehicle on the proper side of a highway has the right to presume that an automobile approaching from the opposite direction on the left-hand or wrong side of the highway will get over to his own proper side in time to avoid a collision, and the person on his own right-hand side is under no duty to proceed under any'other assumption until he has notice to the contrary, but once the person on the proper side of the road has or reasonably should have knowledge that the other driver is not going to or cannot return to his own side of the road, the driver on his own right side of the road must take all reasonable steps possible to avoid a collision.”
The foregoing objection is based on a claim there was no evidence that plaintiff could do anything to avoid the accident. The record does not support the contention.
In this connection there was testimony to the effect that defendant was only two feet over the center line; the travel area was twelve feet; there was six to eight feet of grass shoulder on plaintiff’s side of the road; and plaintiff could see 500 feet up the road which was not quite to the top of the hill. More light will be thrown on this objection as we consider plaintiff’s objection to instruction No. 20 which reads as follows:
“You are instructed that one, who without negligence on his own part, is suddenly placed in a position of danger requiring immediate and rapid action without time for deliberation as to the best course to pursue, is not chargeable with negligence or contributory negligence even though he omits to act in the most judicious manner. In an emergency, while it is the duty of a driver to exercise diligence to avoid injury, consideration must be given to a sudden danger which may arise, and even if the driver does not choose the wisest and best course in an emergency, he is not to blame if there is not time or opportunity for deliberation to exercise judgment.
Plaintiff contends that the last quoted instruction should never have been given as there was no evidence that defendant-was at any time without negligence on his part. Again we cannot agree with plaintiff’s contention. There was evidence to the effect that defendant was traveling on a main highway at sixty to sixty-five miles per hour; he came over the crest of a hill and was confronted by a car that had just turned on to the highway at a very slow rate of speed; plaintiff was approaching on the other side of the highway; defendant applied his brakes and skidded about 122 feet; defendant had his automobile settled down about three feet behind the automobile which had turned on to the highway and about two feet over the center line when the collision occurred. In the face of this evidence it cannot be said as a matter of law that defendant was guilty of negligence.
Plaintiff objects to the special questions and answers because there was no evidence that the plaintiff had an opportunity to turn to the right or take any steps necessary to avoid the accident. The limited evidence, which we have reviewed, is sufficient to warrant the finding of the jury that there was room to the right or north of the defendants automobile for plaintiff’s automobile to pass in safety.
The plaintiff, while admitting that the matters complained of are addressed to the sound discretion of the trial court, contends that the court abused its discretion in requiring the plaintiff to submit to a medical examination, restricting plaintiff’s cross-examination, and permitting defendant to ask leading questions on redirect examination of a witness. Without extending this opinion by a lengthy review of the contentions, it will suffice to say that We have carefully reviewed the record of the trial proceedings and find no abuse of the trial court’s discretion.
What has been heretofore stated and held compels a conclusion the trial court did not err in overruling plaintiff’s motion for a new trial and we find nothing in the record or in contentions advanced to warrant a reversal of the judgment. Therefore the judgment must be affirmed.
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The opinion of the court was delivered by
Jackson, J.:
In the court below, the trial court, upon motion of the defendant, set aside a personal judgment taken on December 19, 1955. The defendant’s motion was not filed until January 13, 1960, and the parties agree that the judgment could be set aside only if it were absolutely void. The plaintiff has appealed, the appeal being filed on the same day on which the judgment was set aside.
In giving the history of this action, we shall refer to the parties as they appeared in the district court.
Perhaps, we should say at the start that this proceeding would serve as an illustration of “the law’s delay.” At any rate, the plaintiff bank filed its action on August 14, 1940 against defendant A. F. Dreyer and one J. W. Dworak as partners. It was alleged that both defendants were indebted to the bank on twenty promissory notes and separate causes of action were properly alleged for each note. Plaintiff prayed for a total judgment in the sum of $8,019.55 together with interest at six percent per annum on the twenty causes of action.
On September 12,1940, plaintiff bank caused a garnishment summons to be served upon the Finance Officer, Veterans’ Affairs at Wadsworth, Kansas. This garnishment summons was served by the sheriff of Leavenworth county.
It appears that both of the principal defendants were residents of Missouri, and on March 10 and 14, 1941, plaintiff bank was able to obtain personal service of summons upon both Dreyer and Dworak in Jackson county, Missouri by the sheriff of that county, all as provided for iri G. S. 1949, 60-2529. This could be compared to publication service and not personal service as provided in the statute. The summons served recited the pending garnishment proceedings described above.
The above named garnishee answered and, while admitting having funds due the principal defendants under his control, challenged the right of the plaintiff bank to subject the funds to garnishment. The plaintiff bank took issue on the garnishee’s answer, and this contest was not resolved for some years.
On October 4, 1941, the district court issued judgment in rem against the principal defendants Dreyer and Dworak, finding that they had been served in Missouri, as set out above, and further finding that at that time there was due and owing plaintiff the sum of $7,991.98 with interest at six percent per annum until paid. At this time, the court had no assets in its hands to apply to the satisfaction of its in rem judgment. The garnishment proceedings were still going on between the plaintiff and the garnishee.
On November 8, 1945, an alias summons in the principal action was issued to the sheriff of Wyandotte county and served upon defendant A. F. Dreyer personally in Wyandotte county. The defendant made no appearance in the action and ignored the service of summons.
Ten years later, on December 19, 1955, the plaintiff bank took a personal judgment by default against defendant A. F. Dreyer in the sum of $14,805.05 together with interest until paid. Soon thereafter, on December 21, 1955, the court issued an order finding that the above named garnishee had paid over to the plaintiff bank the funds garnished in the sum of $4,183.32, and that therefore, the garnishment proceedings begun September 12, 1940 should be released and the garnishee discharged.
No further proceedings were taken until on December 15, 1959, garnishment summons were issued for Milton G. Dreyer, Executor, as garnishee, and for the principal defendant A. F. Dreyer. Both summons were served and the garnishee answered that he held $4,500.00 for the defendant, and the principal defendant filed a motion to vacate the personal judgment of December 19, 1955.
It was contended and the district court found that said judgment was void because there was no action pending between the plaintiff and the defendant Dreyer on December 19,1955.
Counsel for defendant with commendable frankness and clarity states that this question of the pendency of the action is the sole question in the appeal. However, we can only say that we fear counsel is confusing the rules of personal judgments with the rules applicable to judgments quasi in rem.
In a technical sense, there are actually three different kinds of actions and judgments. These are (1) personal judgments (2) judgments quasi in rem and (3) judgments wholly in rem.
Personal judgments are those in which the court has personal jurisdiction over the parties. In such case, there can be no doubt that the original cause of action becomes merged in the judgment and that any further litigation concerning the claim must be brought upon the judgment.
Actions and judgments usually known as quasi in rem are brought between plaintiffs and named defendants, but if the court may not obtain jurisdiction over the defendants, it may proceed if it is able to obtain jurisdiction over property belonging to them. Thus, if reasonable means be taken by substituted service to notify the defendants of their right to come into the action and defend, their property may be taken and applied to plaintiff’s claim. So held the landmark case of Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565.
As we all know, the present action is one of the most common illustrations of an action quasi in rem. Here we have an ordinary action on a debt due the plaintiff against nonresident defendants but said defendants have property which may be reached and brought within the jurisdiction of the court by attachment or garnishment. Parenthetically, it has been held that the garnishment of a debt due a nonresident creditor is sufficient to subject the debt to plaintiff’s claim Harris v. Balk, 198 U. S. 215, 25 S. Ct. 625, 49 L. Ed. 1023.
The real in rem action where the court has jurisdiction over certain property and will bar all parties who do not come in and set up their claims is not common in Kansas. Perhaps, a ready and common illustration of such an action in other courts would be a libel action in admiralty in which a ship is seized and all claims settled. Those interested in actions wholly in rem may read the .opinion of Mr. Justice Holmes in Tyler v. Court of Registration, 175 Mass. 71, 55 N. E. 812.
Turning again to our case at bar, we find that the action began as a quasi in rem action. It will be noted the petition was framed as any petition on a promissory note would be framed where it might be expected to obtain service personally on defendant immediately. With such pleadings as to all defendants served personally with process or who may make a general appearance in the action, the proceeding continues as a personal action (Union Central Life Ins. Co. v. Irrigation L. & T. Co., 146 Kan. 550, 73 P. 2d 72). But where an in rem judgment only is taken without jurisdiction over the person of the defendant, there can be no merger of the cause of action and the judgment (see Union Central Life case, supra). A new action for the balance due plaintiff must be brought on the original cause of action and cannot be brought on the judgment (Oil Well Supply Co. v. Koen, et al., 64 Oh. St. 422, 60 N.E. 603).
Moreover, in Strand v. Halverson, 220 Iowa 1276, 264 N. W. 266, 103 A. L. R. 835, it was held that in a quasi in rem action, where only an in rem judgment against property has been had partially satisfying plaintiff’s claim, a new garnishment might issue along with a new garnishment summons to the defendant, and that still later defendant might be subject to the personal jurisdiction of the court as to the balance of the claim made in the petition. This case seems to be directly in point. See also the annotation on the question of whether the original cause of action merges with a judgment quasi in rem, 103 A. L. R. 839.
There would seem to be no question that the cause of action in the case at bar did not merge with the judgment of 1941. The petition was still on file, moreover, the property had not yet been received on the first garnishment. All the 1941 judgment did was to determine as to the garnishment that defendant was indebted to plaintiff in an amount greater than tire amount held by the garnishee. This being the situation, we are convinced that there was nothing to . prevent the plaintiff from issuing a new summons to be personally served upon the defendant when he came within the jurisdiction. Defendant was content to default as to this service and the judgment rendered appears to be wholly valid.
The order of the trial court setting aside the judgment must be reversed, and the court is further directed to reinstate the garnishment proceedings against Milton G. Dreyer, Executor, etc. It is so ordered. | [
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The opinion of the court was delivered hy
Parker, C. J.:
Plaintiff, Charles C. Bishop, brought this action against the defendant, The Board of County Commissioners of Butler County, Kansas, to recover damages sustained to his person and property on account of an alleged defect in a county highway. The district court sustained a demurrer to plaintiff’s evidence, dismissed the action at his cost and overruled his motion for a new trial. This appeal followed.
The pleadings are not in question, hence reference thereto will be limited to matters defining the issues and outlining the claims of the parties relating to the conditions and circumstances under which the accident occurred.
The petition alleges in substance that on July 6, 1958, plaintiff was driving his motorcycle on North Ohio Street, a Butler County road, at a speed of fifty-five to sixty miles per hour when, at a point on such highway approximately five miles north of the city limits of Augusta and some thirty feet south of the southern end of the Kansas turnpike overpass, he struck a hole in the blacktop pavement, which was approximately six to eight inches deep, one and one-half feet wide and three feet in length, thereby causing him to lose control of his motorcycle and sustain serious injuries (describing them).
Further pertinent allegations of the petition are to.the effect that the defendant (referring to the individual members of the Board of County Commissioners) together with the County Engineer and the Superintendent of Roads and Bridges for Butler County, did, in accordance with G. S. 1949, 68-301, receive actual personal notice of the hole in the highway at least five days prior to plaintiff’s accident, but that such defendant, County Engineer and Superintendent of Roads and Bridges, failed and neglected to cause such hole to be repaired, despite their actual personal knowledge thereof; and that prior to the accident plaintiff had no knowledge, either personal or otherwise, of the existence of the hole and was free from any negligence contributing to injuries or damages sustained by him in the accident.
In its answer the defendant denies generally all allegations contained in the petition; specifically denies any actual notice of the hole in the highway was ever provided by the plaintiff to the members of the Board of County Commissioners or by any other person or that notice was given to any county employee, including the County Engineer and Superintendent of Roads and Bridges, or that any knowledge whatsoever was had of the hole, if one did exist, in the highway on the daté of the accident; and asserts that if plaintiff was injured by reason of driving his motorcycle on a county road then such injuries were the direct and proximate result of his own negligence in driving his motorcycle.
With issues joined as indicated the case came on for trial by a jury, which was duly empaneled and sworn to try the cause. At the close of plaintiff’s evidence defendant demurred thereto on the ground such evidence failed to establish facts sufficient to constitute a cause of action in favor of plaintiff and against the defendant under the provisions of G. S. 1949, 68-301. Subsequently the Rial court sustained the demurrer upon the premise on which it was based, discharged the jury, dismissed the action, and then overruled plaintiff’s motion for a new trial. Thereupon plaintiff perfected the instant appeal, wherein the decisive appellate issue involved is whether the trial court erred in sustaining the demurrer to his evidence.
Since questions relating to the liability of counties and townships for damages for injuries sustained because of defects in bridges, culverts and highways have been the subject of legislative and judicial action ever since the adoption of the constitution of this state we deem it necessary to review the conditions and circumstances under which such entities were subjected to any liability whatsoever for defects in highways.
Before 1887 counties and townships, being quasi-corporate subdivisions of the state, were not liable in damages for any injuries sustained because of negligence of their officers or employees in the construction or maintenance of highways, or because of defects therein. (Eikenberry v. Township of Bazaar, 22 Kan. 556; Comm’rs of Marion Co. v. Riggs, 24 Kan. 255. See, also, Silver v. Clay County, 76 Kan. 228, 91 Pac. 55; Shawnee County v. Jacobs, 79 Kan. 76, 78, 99 Pac. 817; Harper v. City of Topeka, 92 Kan. 11, 14, 139 Pac. 1018.)
In 1887 the legislature, by the enactment of Ch. 237, L. 1887, saw fit to make counties and townships liable, under the circumstances therein set forth, in damages for injuries sustained because of defects in highways, subject to specific conditions that, as to counties, the chairman of the board of county commissioners must have had notice of the defects for at least five days prior to the time when the damage was sustained and that, as to townships, the township trustee must have had like notice of such defects. Chapter 237, L. 1887, remained unchanged in our general statutes (See, e. g., G. S. 1935, 68-301) until it was amended by Ch. 340, L. 1947, now G. S. 1949, 68-301.
So far as applicable to the issues here involved it can be stated the only material difference between the two enactments above mentioned is that Ch. 237, L. 1887, required notice to the chairman of the board of county commissioners for the period of time above indicated as a mandatory prerequisite to liability on the part of the county, whereas under the provisions of Ch. 340, L. 1947, the previously existing mandatory prerequisite to liability on the part of the county is satisfied when any member of the board of county commissioners, the county engineer or the superintendent of roads and bridges of the county shall have had notice of highway defects for at least five days prior to the time the damage is sustained by reason thereof. By the same token it may be said the provisions of Ch. 237, L. 1887, and those of Ch. 340, L. 1947, are so similar in form and substance that decisions construing the force and effect of the first enactment (Ch. 237) are to be regarded as sound and controlling precedents in determining the rights and liabilities of the parties in actions based on the amended statute (Ch. 340).
The parties agree this action is founded on G. S. 1949, 68-301. Therefore pertinent portions thereof should be quoted. They read:
“Any person who shall without contributing negligence on his part sustain damage by reason of any defective bridge, culvert, or highway, may recover such damage from the county or township wherein such defective bridge, culvert or highway is located, as hereinafter provided; that is to say, such recovery may be from the county when such damage was caused by a defective bridge, culvert or highway which by law, or agreement entered into pursuant to law, the county is obligated to maintain, and when any member of the board of county commissioners, the county engineer or superintendent of roads and bridges of such county shall have had notice of such defects for at least five days prior to the time when such damage was sustained; and in other cases such recovery may be from the township, where the trustee of such township shall have had like notice of such defect. . . .”
It should be noted at this point that neither the statute just quoted (See Rockhold v. Board of County Commissioners, 181 Kan. 1019, 317 P. 2d 490) nor its predecessor (Cunningham v. Clay Township, 69 Kan. 373, 377, 378, 76 Pac. 907; Parr v. Shawnee County, 70 Kan. 111, 115, 78 Pac. 449; Fisher v. Township, 87 Kan. 674, 678, 125 Pac. 94; Rothrock v. Douglas County, 98 Kan. 286, 158 Pac. 19; Wagner v. Edwards County, 103 Kan. 719, 729, 730, 176 Pac. 140; Hollinger v. Dickinson County, 115 Kan. 92, 222 Pac. 136; Cunningham v. Rice County Comm'rs, 121 Kan. 269, 246 Pac. 526; Shaw v. Lyon County Comm’rs, 126 Kan. 319, 267 Pac. 1069) imposes liability for general negligence. Instead they strictly impose a statutory liability for defects in county and township bridges, culverts and highways. That the same holds true of a similar statute (G. S. 1949, 68-419, now G. S. 1959 Supp., 68-419) imposing liability on the state for defects in its highways is fully demonstrated by what is said and held at page 345 of this court’s opinion in Shields v. State Highway Commission, 178 Kan. 342, 286 P. 2d 173. See, also, Bohrer v. State Highway Comm., 137 Kan. 925, 926, 22 P. 2d 470.
It is this court’s considered judgment that four things must be established by evidencé before recovery can be had from a county under the provisions of G. S. 1949, 68-301. Stated in the order in which we desire to list them, for present purposes, they are: (1) That there was a defect in a county bridge, culvert or highway; (2) that the defect in the county bridge, culvert or highway caused the injury for which damages are sought; (3) that there was no contributory negligence on the part of the party claiming damages by reason of the defect in the county highway; and (4) that in order to recover from a county it must also be established by evi dence that one of the three members of the board of county commissioners, or the county engineer or the superintendent of roads and bridges of the county had notice of the defect in the county highway as much as five days prior to the injury. It should perhaps be added that, under the terms of the same statute, before recovery can be had from a township the three things hereinabove identified as (1), (2) and (3) must be established as to township highways and it must also be established that the township trustee had notice of the defect in the township highway at least five days prior to the time when the damage was sustained.
The fact we have outlined the requirements of the statute (G. S. 1949, 68-301) does not mean that issues are here raised respecting the state of the evidence relating to all such requirements. Indeed, it can now be stated, appellee makes no serious contention the record presented fails to disclose evidence sufficient to go to the jury on questions relating to the claimed defect in the highway on the date in question or that such defect contributed to the injuries sustained by appellant in the accident. Nor is it contended appellant’s evidence discloses, that in driving his motorcycle into the defect, he was guilty, as a matter of law, of negligence which barred his recovery.
From what has been related the all-decisive issue presented by this appeal becomes obvious and may be stated thus:
Does the appellant’s evidence disclose facts sufficient to establish that any member of the board of county commissioners, the county engineer or the superintendent of roads and bridges of Butler County had notice of the defect in the North Ohio Street highway at least five days prior to the time appellant sustained damages in the involved accident?
Questions, similar to the one just posed, relating to the evidentiary facts necessary to satisfy the statutory prerequisite of notice in actions against counties and townships under the provisions of 68-301, supra, have been before this court on many occasions and the rules governing their determination have been so frequently considered, discussed and applied in our decisions they must be regarded as the established law of" this state and given full force and effect in reviewing the sufficiency of the evidence in the case at bar.
One of our landmark decisions, which deals specifically with the statutory prerequisite of notice, is Arnold v. Coffey County Comm’rs, 131 Kan. 343, 291 Pac. 762. In that decision (keeping in mind all references to the term “chairman” are now equally applicable to the following officials “any member of the board of county commissioners, the county engineer or the superintendent of roads and bridges”) the leading cases on the point now under consideration are cited and this court in part said:
"... This notice must amount to actual knowledge. (Hari v. Ohio Township, 62 Kan. 315, 62 Pac. 1010.) The fact that the defect had existed for a long time, or that the chairman, if diligent in the performance of his duty, should have known of the defect, is not sufficient. (Parr v. Shawnee County [70 Kan. 111, 115, 78 Pac. 449], supra.) It must be shown that he had actual knowledge of the specific defect which caused the injury. (Jones v. Walnut Township, 59 Kan. 774 [memo only], 52 Pac. 865; Parr v. Shawnee County, supra; Valley Township v. Stiles, 77 Kan. 557, 559, 95 Pac. 572.) Defendant’s demurrer should be sustained if the petition does not allege such actual knowledge (Hari v. Ohio Township, supra; Higman v. Quindaro Township, 91 Kan. 673, 139 Pac. 403), or if the evidence does not show it (Wagner v. Edwards County [103 Kan. 719, 729, 730, 176 Pac. 140], supra; Rosebaugh v. Allen County Comm’rs, 120 Kan. 266, 243 Pac. 277). This showing may be made by any competent evidence, direct or circumstantial (Story v. Brown County, 116 Kan. 300, 302, 226 Pac. 772; see, also, Cloud County v. Vickers, 62 Kan. 25, 61 Pac. 391; Erie Township v. Beamer, 71 Kan. 182, 79 Pac. 1070; Mosier v. Butler County, 82 Kan. 708, 710, 109 Pac. 162; Higman v. Quindaro Township, 89 Kan. 476, 132 Pac. 215; Amis v. Jewell County [98 Kan. 321, 158 Pac. 52], supra; Joyce v. Quindaro Township, 112 Kan. 513, 212 Pac. 68); but the showing of the chairman’s actual knowledge of the specific defect in the bridge, culvert or highway which caused the injury for which damages are sought as much as five days before the injury is essential to liability. (See cases above cited, also Leisenring v. Pleasant Hill Township, 108 Kan. 29, 193 Pac. 893; Burgess v. Center Township, 115 Kan. 346, 223 Pac. 475.)” (p. 347.)
For a later decision, where the foregoing quotation from the Arnold case is quoted verbatim, see Backstrom v. Ogallah Township, 149 Kan. 553, 559, 88 P. 2d 1026.
See, also, Kinzie v. New Gottland Township, 152 Kan. 725, 107 P. 2d 707, where it is said:
“Showing of the township trustee’s actual knowledge of specific defects in township highway which caused injury for which damages are sought,.as much as five days before injury, is essential to liability of township for injuries sustained by defects in such township road. (G. S. 1935, 68-301.)” (Syl.)
And, as demonstrating that the legal principles announced in Arnold v. Coffey County Comm’rs, supra, remain the law of this state, see Rockhold v. Board of County Commissioners, 181 Kan. 1019, 317 P. 2d 490, where it is held:
“Where plaintiff’s petition alleges a defect in a county highway which caused the death of plaintiff’s son within one hour after county road employees created the defect, it is held, pursuant to G. S. 1949, 68-301, that at least five days’ notice of the defect to one of the county officials designated by statute, in order to charge the county with damages occasioned by such defect, is a mandatory prerequisite to liability on the part of the county, since the liability created is wholly statutory and is not based upon the law of negligence. (Reaffirming construction of G. S. 1949, 68-301, in Arnold v. Coffey County Comm’rs, 131 Kan. 343, 291 Pac. 762.)” (Syl.)
And in the opinion, (p. 1023) after citing several of the decisions cited in the Arnold case, said:
“Despite the logic of appellant’s arguments, we are constrained to adhere to our prior decisions construing G. S. 1949, 68-301, and hold that the liability of a county for defects in a bridge, culvert or highway is conditioned upon the proper county official under the statute having actual knowledge of the specific defect which caused the injury for which damages are sought at least five days prior to the time when the damage was sustained. This construction of the statute has persisted through the reported cases in Kansas since the turn of the century, and the legislature has not seen fit to change it. Therefore, it must be presumed that the construction heretofore placed upon the statute conforms to the legislative intention.” (p. 1024.)
In view of our decisions and the record presented, and with direct reference to the heretofore stated decisive question, counsel for the appellant, with commendable candor, quite properly admit: (1) That the notice required by G. S. 1949, 68-301, is. actual notice to one of the five county officials therein named; (2) that they do not contend their evidence discloses actual notice of the highway defect in question to any member of the board of county commissioners or the engineer of Butler County in the manner required by such statute; and (3) that they do not claim the record includes any evidence to the effect that Walt Singer, the then duly appointed and acting superintendent of roads and bridges of Butler County, ever received notice of such defect by word of mouth or written communication from any one.
Thus it becomes obvious the only question remaining for decision under the decisive issue, to which we have heretofore referred, is whether tire circumstantial evidence of record is sufficient to establish that Walt Singer had the essential prerequisite notice of defect required by the statute.
Heretofore we have indicated the evidence was sufficient to establish that on July 6,1958, there was a defect in appellee’s North Ohio Street county road, the size of which was approximately as alleged in the petition, located on the west side of the highway between Augusta and El Dorado at a point about five miles north of the city limits of Augusta, and- that such defect contributed to the injuries sustained by appellant while driving his motorcycle on such highway. Hence further reference to evidence relating to those matters is unnecessary.
We therefore turn to certain informative facts and to pertinent circumstantial evidence of record, touching the question stated in the second preceding paragraph of this opinion.
Several witnesses, who lived in the vicinity and traveled both ways on the North Ohio Street Road, testified they had observed a defect in the west traffic lane of such road, south of the turnpike overpass, and that it had existed for a month or so prior to July 6, 1958.
Nina Fritz, who lived approximately a quarter of a mile south of where the defect was located, testified that she had seen a county road crew working a mile or two north of the turnpike bridge between the 20th and 27th of June. Her husband, Joel Fritz, testified that he knew the county crew had been working on both the north side and south side of the bridge, and that the defect in the highway south of the bridge was still there after the crew had completed its repair work.
Walt Singer was called as a witness by the appellant and testified that at the time of the accident he was employed as superintendent of roads and bridges for Butler County and had been for sixteen years, and that the North Ohio Street Road, the situs of the accident, was within his assigned territory. He further testified in substance that he lived in Augusta and came to El Dorado every Monday morning for county meetings, usually traveling north to El Dorado on the North Ohio Street Road, and that ordinarily, when he did so, he would go back on some other road. During the course of his testimony this witness flatly denied that he had been notified, or that he had observed, or that he had been made aware of the defect on the west side of the highway during the summer of 1958, before July 6.
During the further course of his examination this witness, obviously for the purpose of establishing notice by circumstantial evidence, was examined at length regarding the conditions and circumstances under which he had traveled the road for several weeks prior to the accident. In connection with these interrogatories he frankly admitted that he had traveled such road, one way, at least once a week; that on some date in July, 1958, while en route to El Dorado on such highway, he had observed a defect, located south of the overpass on the right hand (east) side of the road going up the grade to the overpass; and that any one of his crews working on the highway would have to be there as the result of his direction. In leaving this evidence it should be stated that our careful examination of the record fails to disclose anything whatsoever which can be construed as indicating that such witness was ever asked whether he had traveled south from El Dorado to Augusta on the west lane of the North Ohio Street Road over the defect in question, or that he had made admissions to the effect he had done so.
Nothing would be gained by laboring the numerous decisions heretofore cited. Conceding they hold that circumstantial evidence may be sufficient to show adequate notice under the provisions of 68-301, supra, such evidence must clearly show actual notice by one of the officials therein mentioned as distinguished from constructive or imputed or implied. (See, e.g., Wagner v. Edwards County, supra.) It suffices to say that after reviewing the foregoing circumstantial evidence we are convinced it falls far short of the actual notice required by statute (68-301) and our decisions construing its force and effect. Indeed, in our opinion, were we to hold otherwise under the facts of this case our decision would be based purely upon speculation and conjecture.
Based upon what has been heretofore stated and held we are constrained to hold that since the appellant’s evidence failed to establish one of the mandatory prerequisites to liability on the part of the county in actions instituted under the provisions of 68-301, supra, i. e., at least five days’ notice of the defect to one of the county officials designated by its terms, the demurrer to his evidence should have been sustained on that basis and the trial court’s action in sustaining such demurrer must be upheld.
Finally it should be stated that in reaching the conclusion just announced we have not failed to note divers decisions of this court relied on by appellant as sustaining his claim of error. A careful analysis of such decisions discloses, that from the standpoint of the circumstantial facts involved as to notice, they deal with situations entirely different from the one disclosed by the instant record and are therefore clearly distinguishable.
The judgment is affirmed.
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|
The opinion of the court was delivered by
Robb, J.:
This is an appeal by plaintiff below, an Oklahoma corporation, from the trial court’s judgment in a mandamus action denying a peremptory writ to compel appellee, the state commissioner of insurance, to issue a certificate of authority whereby appellant would be permitted to transact life insurance business in Kansas until May 1, 1961, and in a declaratory judgment action in which appellant alleged an actual legal controversy exists between the parties.
Appellant was first issued a certificate to do business in Kansas in March, 1957, and subsequently received a renewal certificate for the year from May 1, 1958, to April 30, 1959. In October, 1958, appellant amended its articles of incorporation and reduced the par value of its stock from $1.00 to twenty cents a share and on March 2, 1959, filed a copy of the amendment with appellee. On April 24, 1959, another renewal certificate was issued and delivered to appellant for the year beginning May 1, 1959, and ending April 30, 1960. However, on April 27, 1959, appellee determined that by reducing the par value of its shares of capital stock appellant had placed itself in violation of G. S. 1949, 40-209a which reads as follows:
“No stock insurance company now or hereafter to be organized under the laws of the United States or any state thereof, or any foreign country, shall be authorized to do business in this state unless the shares of capital stock of such company shall have a par value of at least one dollar per share, which value shall be fixed by the articles of incorporation.”
On May 9,1960, appellant commenced an action seeking an alternative writ of mandamus and for declaratory judgment under G. S. 1949, 60-3127, and made demand that appellee waive the require ment of 40-209a under the following provision of G. S. 1949, 40-209:
“. . . That the commissioner of insurance may, upon renewal of a certificate of authority, waive any of the above requirements except those relating to assets, capital and surplus.”
On May 12, 1959, appellee was temporarily restrained, and on June 5, 1959, he was temporarily enjoined from treating the certificate of May 1, 1959, as not being in full force. It was alleged that by virtue of the amendment to appellant’s articles of incorporation, an actual controversy exists between the parties. The parties stipulated that if under 40-209 appellee is found to have discretion to waive the requirement of 40-209a, this matter should be returned to appellee for exercise of that discretion. In a letter dated June 25, 1959, appellee notified appellant of a hearing to be held on July 6, 1959, in appellee’s office, under the provisions of G. S. 1949, 40-222, to confirm or refute appellant’s violation of 40-209a.
Appellee’s answer filed September 24, 1959, admitted appellant’s application for a renewal certificate effective May 1, 1959, and its approval by appellee and delivery to appellant. However, appellee denied that appellant had any authority to transact business in Kansas after May 1, 1959, and appellant had been so notified prior to May 1, 1959, and further denied that the certificate of authority mailed appellant on April 24, 1959, had ever had any legal force and effect because appellant, by its violation of 40-209a had can-celled, withdrawn and negated it prior to May 1, 1959.
On April 29, 1960, another temporary injunction order was issued extending the time of appellant’s operations until April 30, 1961, and this was the order in effect at the time of the trial court’s judgment herein.
On June 26, 1960, appellant filed an amended petition (hereafter referred to as the petition) where in detail it alleged that under 40-209 appellee had the power and could have exercised his discretion and waived the requirement of 40-209a and that he should have exercised his discretion because of appellant’s solvency, number of policy-holders, number of agents and employees and the value of that agency force, together with the fact that appellant had paid substantial amounts in claims in Kansas. Appellant further alleged that after the issuance of the first certificate, a property right was conferred upon it to transact business in Kansas and that appellee’s revocation and refusal to issue subsequent renewals deprived appellant of such property without due process of law in violation of the fourteenth amendment of the constitution of the United States. While the par value upon which the original stock had been issued was $1.00 a share, it had a real value now in excess of $20.00 whereby, or as a result of which, appellant had obtained permission from the Oklahoma securities commission to reduce the par value to twenty-five cents per share and later to twenty cents per share.
Along with appellee’s failure to waive the requirement of 40-209a under discretionary power given him by 40-209, appellant alleged that appellee actually violated 40-209a because appellant was not seeking admittance to do business or to transact business in Kansas, but was seeking a renewal of the certificate it already possessed which, as above stated, it considered was a property right. In further support of its contention, appellant then saw fit to quote the preamble and title to the act as follows:
“The Preamble to House Bill 249, which became Chapter 210, Laws of Kansas 1931 (Page 313), which sets out Sections 40-209a and 40-209b is as follows:
“ ‘An Act requiring that the stock of foreign insurance companies seeking admittance to this state shall have par value fixed by articles of incorporation.’ ”
Appellant alleged that the actual purpose of 40-209a was to allow appellant to set any par value for its shares of stock which it deemed to be in the best interests of the company and that appellee acted arbitrarily, capriciously, and unreasonably in failing to waive the $1.00 par value requirement on the capital stock, which appellee had the authority to do, and he was further arbitrary, capricious, and unreasonable in refusing to issue a renewal certificate to appellant whereby it was forced either to bring this action or be ousted from doing business in the state.
Other allegations of the petition were of similar import to the above and it would only prolong this opinion needlessly to set them out or refer to them in detail.
On May 26, 1960, by consent of the trial court, appellant filed an amendment to the amended petition wherein it alleged that 40-209a was unconstitutional under article 2, section 16, of our state constitution, and has no force and effect as to appellant or its stock because the title, as hereinbefore set out, does not clearly state the subject of the act.
Appellee’s answer admitted the reduction of the stock, the existence of an actual controversy between the parties, that 40-209a imposed a continuing requirement on foreign stock insurance com- parties such as appellant to maintain a par value of the capital stock of $1.00 per share not only at initial admittance to transact business but at all times while enjoying the privilege of transacting business in this state, and that the last proviso of 40-209 did not give appellee any power to waive the requirement that the capital stock have a par value of $1.00 per share because the capital stock of a stock insurance company is covered by the words, . . assets, capital and surplus,” found therein.
Appellee further answered that the insurance code requiring the minimum of $1.00 per share for the capital stock of an insurance company seeking admittance to transact business in the state of Kansas controls the issues herein and the general corporation code relied upon by appellant does not. Appellee admitted that on April 24, 1959, he mailed appellant an annual certificate for the period from May 1,1959, through April 30,1960, but denied such certificate ever had any legal force and effect because it was cancelled, withdrawn, and negated prior to its effective date for the reason that appellant had previously reduced the par value of its capital stock. However, appellant has continued to do business by reason of temporary injunctions. Appellee also stated that a hearing set by him to determine matters in connection with appellant’s certificate of authority was enjoined and this injunction has continued in force during the pendency of this action.
Finally, appellee alleged a general denial and appellant, in reply, made a general denial to the answer of appellee.
On May 26, 1960, trial was had before the court and arguments made. The matter was taken under advisement and both parties directed to file briefs. On October 7, 1960, there was reargument and again the matter was taken under advisement. In its memorandum of October 25, 1960, the trial court in brief found the facts referred to herein and set out the pertinent part of 40-209a. Appellant’s claim that it sought a renewal of a pre-existing certificate and was not subject to 40-209a was overruled by the court. The original certificate was issued for one year and no right vested in appellant to have it renewed if at the time it would allow appellant to operate in violation of 40-209a. The certificate was not a property right that continued from year to year, and companies with certificates issued for a previous year were not exempt from 40-209a. Appellee did not act arbitrarily or capriciously in denying the renewal of the certificate and in fact to have granted the renewal would have been arbitrary and capricious. The wisdom of this law is one for legislative consideration and not for the commissioner of insurance. By close reading of 40-209 and its effect on 40-209a as to par value of stock, and the exception relating to the words, “assets, capital and surplus,” it becomes apparent that failure to have followed the plain wording of the statute and to have exercised discretion in waiving the provisions of 40-209a would have been an abuse of such discretion. Anything that had caused the case to work a hardship upon appellant’s policy-holders, or employees arose only because of appellant’s violation of 40-209a. Finally, the trial court held that 40-209a does not violate article 2, section 16, of our state constitution. The trial court held generally and entered judgment in favor of appellee. This appeal, accompanied by a stay of proceedings by the trial court as a result of a supersedeas bond, followed.
The first question argued by the parties is the point raised by the last amendment to the amended petition of appellant which challenged the constitutionality of 40-209a for the reason that the subject matter of the statute goes beyond and is not covered by the title thereof. Both the title and the statute have already been set out herein and need not be repeated. We are first confronted with the long-established rule that when a statute is being attacked as unconstitutional because it is not within the title thereof, a liberal construction is' to be applied to the title for the purpose of determining the statute to be constitutional. (Water District No. 1 v. Robb, 182 Kan. 2, 318 P. 2d 387.) The statutes there considered controlled the installation, operation, and function of water districts. The opinion includes a good discussion of the constitutional question now before us, but we cannot agree with appellant that the following sentence taken out of context from that case substantiates its position:
“It is sufficient if the title indicates clearly, though in general terms, the scope of the act.” (pp. 9, 10.)
The foregoing more nearly substantiates appellee’s argument. However, he relies not only on the above-quoted portion of the opinion but on the entire last paragraph of page 9, all of page 10, and the top of page 11, wherein are covered the rules that the purpose of a title is to direct the mind to the contents of an act (later developed herein); that only one subject shall be contained in a bill and it shall be clearly expressed in the title; that all provisions of an act directly related to the subject must be expressed in the title but the title need not be a synopsis or abstract of the entire act in all its details. Cases which are more far-reaching than our present one were then set out and the rule of liberal construction adhered to. Appellant in the Water District case contended that certain specific matters covered by the acts therein considered were not referred to in the titles, and this court, in commenting thereon, made use of the following language:
“Such matters concern mere details incident to the operation and functioning of water districts formed under the acts. There is no necessity of referring to such details in the titles.” (p. II.)
Some of the details peculiar to that particular case were then enumerated but they need not be repeated here. We are, therefore, not inclined to depart from our established rule of liberal construction as it has traditionally been applied to the titles of legislative acts.
However, in State, ex rel., v. Shanahan, 178 Kan. 400, 286 P. 2d 742, this court had no other alternative than to hold the statute involved so far exceeded the title that it was unconstitutional because there the House of Representatives was trying to taclc onto a Senate Bill, which properly abolished a statute relating to registration of foreign motor vehicles in this state, an entirely detached and different statute whereby the Kansas State Board of Review would also have been abolished under one and the same title. To some extent the above case resembles the attempt of the legislature to impose a severance tax on oil and gas under a title that was entirely foreign to it. (State, ex rel., v. Kirchner, 182 Kan. 622, 624, 322 P. 2d 759.) The subject of the act was not clearly expressed in the title and the entire act was held to be unconstitutional and void.
In Getty v. Holcomb, 79 Kan. 224, 99 Pac. 218, defendant’s contention was that because the title to an act providing for the printing and distribution of ballots for nomination for public office and for regulating holding of elections and enforcement of secrecy did not include a provision for the production of ballots on contest of an election, when such provision was included in the body of the act, the act was unconstitutional and invalid. It was there said such a narrow, technical or illiberal interpretation will not be placed on the constitutional mandate because it relates to substance and not to form. The Getty case then stated the cardinal rule set out in nearly every case of this character — that the purpose of a title is to direct the mind to the contents of an act so that the members of the legislature and the people may be fairly informed and not deceived as to what the act embraces and although the subject may be single, it may be very comprehensive and therefore extend to and include any number of pertinent legislative details, and any phraseology by way of title which clearly indicates tire subject to which all such details may be related will be sufficient. (pp. 226, 227.) See, also, City of Lawrence v. Robb, 175 Kan. 495, 265 P. 2d 317, where the Getty case was cited with approval.
Considering the authorities cited and the fact that the nature of appellant’s business involves the protection of the public interest, we can arrive at no other conclusion than that the subject of 40-209a so far as the $1.00 minimum for par value stock is concerned may be only a small detail as to appellant but it is a very pertinent legislative detail enacted to protect the interests of the people of this state. Under the liberal construction rule the subject matter of the act still leaves the amount of the par value of $1.00 or more to be fixed by the board of directors in the articles of incorporation. We conclude the trial court did not err in holding that 40-209a did not violate article 2, section 16, of our state constitution.
Appellant contends and argues that the terms of G. S. 1949, 40-225 control for the reason that this is a renewal rather than an initial admittance to transact business in Kansas and that 40-209a does not apply. We think a lengthy discussion and analysis of the legislative intent is unnecessary on this point because these statutes are clear, plain, and unambiguous. From a reading of 40-225 it is obvious that statute has to do with the annual reports made by insurance companies to the insurance commissioner, who furnishes blanks, etc., to the companies for that purpose, and that is a duty separate and apart devolving upon insurance companies transacting business in this state while 40-209a has to do with the fixing of the par value of stock by the board of directors of each company in its articles of incorporation. Appellant further argues this is a renewal and not an original application for admittance and it is not necessary to comply with the requirement in 40-209a that each share of capital stock have a par value of $1.00. In other words, it argues that the statutory provision for $1.00 par value of capital stock would apply only on the original application for admittance. This contention is answered by the reasoning set forth in State, ex rel., v. Stice, 186 Kan. 69, 72, 73, 74, 348 P. 2d 833, where it was in effect stated that once a standard or requirement is met by a person, or other legal entity, to do what the applicant seeks to do, such standard or requirement must continue so long as that act which is permitted thereby is carried on in the state. Otherwise, the applicant loses the right to carry on such activity within this state.
Appellant contends it was the appellee here who destroyed the validity of the renewal certificate that was issued to appellant on April 24, 1959, to become effective May 1, 1959. That is not the situation. Appellant, by its own voluntary act in reducing the par value of its capital stock to less than the statutory requirement of $L00 per share (which had qualified it not only for admittance to transact business in Kansas but would have qualified it to continue to do business in this state and to receive renewal certificates therefor if other requirements of the insurance code were complied with) destroyed its own qualification, standard and requirement in violation of 40-209a. If any hardship should develop in regard to appellant’s policy-holders, employees, or its extensive business in Kansas, the blame is that of appellant.
In connection with the above, see In re Insurance Tax Cases, 160 Kan. 300, 161 P. 2d 726. The answer to appellant’s next question was also determined in the Insurance Tax Cases. That question is— did the issuance of the original certificate clothe this appellant with a property right so that when the renewal certificate was recalled and revoked, it also deprived appellant of property without due process of law in violation of the fourteenth amendment to the federal constitution? As shown in the Insurance Tax Cases, appellant here obtained a license to transact business in this state; it did not obtain a property right. (p. 303.) In this connection G. S. 1949, 40-215 of the insurance code provides:
“All certificates and licenses granted under this code shall continue in force until the first day of May next after their date, unless sooner suspended or revoked by the commissioner of insurance.”
The final question discussed by the parties is — does appellee have discretion under 40-209 to waive the $1.00 requirement in 40-209a? As above stated, the legislature used clear, plain, and unambiguous language in regard to the minimum par value of the capital stock of any foreign insurance company seeking to transact business in this state and the statutes are couched in mandatory terms which in our opinion can only be changed by the legislature. Therefore, the trial court was correct in holding that appellee had no discretion in this matter and he could not waive the requirement.
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|
The opinion of the court was delivered by
Schroeder, J.:
The question presented by this appeal is whether an “agency shop” provision in a labor contract is prohibited by the so-called “right to work” law of Kansas. The appellants are nonunion employees covered by the applicable collective bargaining agreement and brought this action to enjoin application of the contract, and to secure a declaratory judgment of the court to determine the validity of the “agency shop” provision in the contract. The appellees by cross appeal challenge the jurisdiction of the court under the National Labor Relations Act.
Appeal has been duly perfected from an order sustaining a motion to dismiss a petition filed in the district court of Wyandotte County, Kansas. The motion was treated by both parties and the trial court as equivalent to a demurrer, since it challenged only the sufficiency of the petition to state a cause of action and the jurisdiction of the court as to the subject matter. Under these circumstances the well-pleaded facts in the petition are admitted, and the petition, not having been attacked by motion, is entitled to a liberal construction in favor of the pleader. The following facts are indicated by the petition.
The plaintiffs, Floyd M. Higgins, Oscar Waddell and Beulah Lamuel (appellants), are each residents of Wyandotte County, Kansas, and seniority employees in the production department of the defendant, Cardinal Manufacturing Company, Inc. (appellee), located in Kansas City, Kansas, where it is engaged in the business of the manufacture of television picture tubes and by-products.
The defendant, General Drivers Allied Automotive and Petroleum Local Union No. 498 (appellee), is a labor union and the duly certified bargaining agent for the employees of the defendant, Cardinal Manufacturing Company, Inc. The defendant, C. B. Butler (appellee), is president of the local union, which is an affiliate of the defendant, The International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America.
The appellants brought the action as individuals and as representatives of such employees of Cardinal “who are not now members of said Local Union No. 498, or who may hereafter resign membership therein.”
On or about the 15th day of November, 1958, the employer, recognizing the union as the exclusive bargaining agency for all employees within the “bargaining unit” as certified by the National Labor Relations Board, entered into an alleged security agreement which provides in part as follows:
“Article III.
“No Discrimination — Equal Benefits — Equal Obligations.
“Section 1. Agency Shop (a) Membership in the Union is not compulsory. Employees have the right to join, not join, maintain or drop their membership in the Union, as they see fit. Neither party shall exert any pressure on or discriminate against an employee as regards such matters.
“(b) Membership in the Union is separate, apart and distinct from the assumption by one of his equal obligation to the extent that he receives equal benefits. The Union is required, under this Agreement, to represent all of the employees in the bargaining unit fairly and equally without regard as to whether or not an employee is a member of the Union. The terms of this Agreement have been made for all employees in the bargaining unit and not only for members in the Union and this Agreement has been executed by the Employer after it has satisfied itself as the result of a secret ballot that the Union is the choice of a majority of the employees in the bargaining unit and the Union has been certified by the National Labor Relations Board.
“(c) In accordance with the policy set forth under subparagraphs (a) and (b) of this Article, all employees shall, as a condition of continued employment, pay to the Union, the employees’ exclusive collective bargaining representative, an amount of money equal to that paid by other employees in the bargaining unit who are members of the Union, which shall be limited to an amount of money equal in the Union’s regular and usual initiation fees, and its regular and usual dues and its general and uniform assessments. For existing employees, such payments shall commence thirty (30) days following the date of execution of this Agreement and for new employees, the payments shall start sixty (60) days following the date of employment.
“(d) The Union agrees to indemnify the Company and hold the Company harmless from any final determination of liability to any employee by reason of the discharge of such employee if such discharge was caused or effected by a request of the Union, as provided for in the preceding paragraphs of this contract.
“The Company agrees to notify the Union of the pendency of any law suit which results from the discharge of an employee at the request of the Union within ten (10) days of the date of service of summons on the Company, and the Union obligates itself to defend the law suit.
“Section 2. The Employer agrees to deduct from the pay of all employees covered by this Agreement who so authorize in writing, dues, initiation fees and/or uniform assessments of the Local Union having jurisdiction over such employees and agrees to remit to said Local Union all such deductions. Where laws require written authorization by tire employee, the same is to be furnished in tlie form required. No deduction shall be made which is prohibited by applicable law.
“Article XVII.
“Extra Contract Agreements.
“The Employer agrees not to enter into any agreement or contract with his employees, individually or collectively, which in any way conflicts with the terms and provisions of this Agreement.
“This Agreement shall be in full force and effect from November 15, 1958 to November 15, 1959, and shall continue in full force and effect from year to year thereafter unless written notice of desire to change or modify the Agreement is served by either party upon the other party at least sixty (60) days prior to the annual anniversary date.” (Emphasis added.)
The appellants allege they “did not sign said agreement nor agree to the terms thereof, nor authorize any one to execute said agree ment in their behalf, nor have they joined said Union, nor do they intend to become members of said Union, that said plaintiffs have paid no sums of money to said Local Union as purportedly required by said Article III, but have refused so to do.”
The appellants then allege “by certified mail the defendant, Local Union No. 498 on or about February 10, 1959, did advise each of these plaintiffs that unless Local Union No. 498 received from each of them the sum of Twelve ($12.00) Dollars, by March 1, 1959, that the defendant, C. B. Butler, as President of said Local Union No. 498, would request the defendant, Cardinal Manufacturing Company, to discharge each of said employees. A copy of said notice is hereto attached, marked, ‘Exhibit B,’ and made a part hereof.” In addition to the foregoing, which is a correct recitation of the substance of the notice, it recites:
“In accordance with the Taft-Hartley law, the Union must represent all employees in the bargaining unit regardless as to whether they are members of the Union or not, therefore, the Union has a right to charge employees a fee in the amount of the Union’s monthly dues for services rendered.”
By reason of the foregoing facts the appellants allege the provisions of the contract, and in particular Article III thereof, are void and in violation of Article 15, Section 12, of the Constitution of the State of Kansas, commonly known as the “right to work amendment” adopted by the electors of the State of Kansas on the 4th day of November, 1958, and G. S. 1949, 44-803. They allege their threatened discharge for failure to pay the equivalent of initiation fees, union dues and assessments is in complete disregard of their “rights under the law and as citizens of the State of Kansas,” and that they will suffer irreparable harm and injury unless the court restrains and enjoins the defendants from such threatened action.
By further appropriate allegations they seek a temporary injunction during the pendency of the action, a permanent injunction, and a declaratory judgment concerning the controversy.
Upon the filing of the petition the trial court issued a temporary restraining order. Thereafter a motion to dismiss the action for injunction, and to dissolve the temporary restraining order, was filed by the union challenging the jurisdiction of the state court as to the subject matter under the National Labor Relations Act, and the sufficiency of the petition to state a cause of action under the laws of the State of Kansas.
The trial court overruled the motion on the jurisdictional ground, but sustained it on the ground the petition did not state a cause of action. The basis for the trial court’s ruling was that the agency shop provision was not within the scope of the Kansas “right to work amendment.” Actually the trial court decided it had jurisdiction to interpret the Kansas law, but it did not reach the jurisdictional question under the National Labor Relations Act. To protect their rights the appellees cross-appealed to keep both jurisdictional questions open.
It is conceded by the parties interstate commerce is affected by the business of Cardinal Manufacturing Company, Inc. This is apparent from the petition which incorporates the contract by reference. Under applicable federal legislation, 29 U. S. C., § 141, et seq., and particularly § 159 (c) (1) thereof, the National Labor Relations Board must determine that a question of representation affecting interstate commerce exists before directing an election or certifying any union as the bargaining agent for the employees.
The issue of union security presented by this case brings into focus a conflict between two firmly-held American beliefs: The belief that a worker should not be required to support an organization which he may oppose, and the belief that a worker should not be a “free rider” who takes advantage of benefits secured by a union without contributing his share to its support. That issue has been the subject of legislation at both the state and national levels.
The Kansas “right to work amendment” cannot be interpreted separate and apart from federal legislation affecting union-security agreements. In the evolution of Federal American Law three types of union-security provisions in collective bargaining agreements have commanded attention: (a) The closed shop provision requires membership in the contracting union before a job applicant can be employed and for the duration of his employment; (b) the union shop provision does not require an applicant to be a member of the union before he is hired, but it does require him to join, and usually to continue his membership in the union after he is hired; and (c) the agency shop provision requires nonunion employees, as well as union members, to pay union dues on the theory that the union as bargaining agent of all employees is entitled to the financial support' of all. ■
Under the Wagner Act collective bargaining became the heart and core of labor relations and it has remained so. There were no restraints under federal law upon the extent to which provisions for compulsory union membership could be inserted in collective bargaining agreements. Under the closed shop proviso nothing in the federal law was held to illegalize the confirmation of voluntary closed shop agreements. States, however, were permitted to pursue their own more restrictive policies. (See, Algoma Plywood Co. v. Wis. Board, 336 U. S. 301, 93 L. Ed. 691, 68 S. Ct. 584.)
By the Labor Management Relations Act, 1947, commonly known as the Taft-Hartley Act (29 U. S. C., § 141, et seq.) the closed shop provision in collective bargaining agreements was made illegal, but it did not abolish compulsory unionism. It gave sanction to the union shop in 29 U. S. C., § 158 (a) (3).
Under section 14 (b) of the Labor Management Relations Act, 1947, (29 U. S. C., § 164 [b]) Congress yielded to the states the authority to ban union shop agreements by providing:
“Nothing in this subchapter [act] shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.”
It is by virtue of this provision that states are permitted to enact so-called “right to work laws,” which escape federal pre-emption under the Labor Management Relations Act, 1947, even though interstate commerce is affected. (Algoma Plywood Co. v. Wis. Board, supra.)
The foregoing provision is paramount to section 8 (a) (3) of the Act (29 U. S. C., § 158 [a] [3]), which provides in part:
“It shall be an unfair labor practice for an employer—
“(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: Provided, That nothing in this subchapter, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization ... to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later, . . . Provided further, That no employer shall justify any discrimination against an employee for nonmembership in a labor organization . . . (B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership;”
On the 4th day of November, 1958, the people of the State of Kansas adopted an amendment to the Constitution of the State of Kansas, now designated as Article 15, Section 12, which reads:
“No person shall be denied the opportunity to obtain or retain employment because of membership or nonmembership in any labor organization, nor shall the state or any subdivision thereof, or any individual, corporation, or any hind of association enter into any agreement, written or oral, which excludes any person from employment or continuation of employment because of membership or nonmembership in any labor organization.”
Although no legislation has been enacted in the State of Kansas pursuant to the foregoing constitutional amendment subsequent to its adoption on the 4th day of November, 1958, legislation on the subject was enacted in 1943 which presently appears as G. S. 1949, 44-803.
It is a settled rule of constitutional construction that prohibitive and restrictive constitutional provisions are self-executing and may be enforced by the courts independent of any legislative action, unless it appears from the language of the provision that the enactment of legislation is contemplated as a requisite to give it effect. The forgoing principle has been recognized in Woodworth v. Bowles, 61 Kan. 569, 60 Pac. 331; and State ex rel., v. Mercantile Association, 45 Kan. 351, 25 Pac. 984; see, also, State, ex rel., v. Deck, 106 Kan. 518, 188 Pac. 238; 16 C. J. S., Constitutional Law, §49; and 11 Am. Jur., Constitutional Law, §§ 71 to 77.)
The collective bargaining agreement presently under consideration was executed by the employer and the union after the effective date of the foregoing constitutional amendment. Therefore, the question whether the agency shop provision is valid under the above Kansas constitutional amendment is directly presented.
The appellees argue the amendment in no way refers to contracts requiring the payment of service fees to a labor union; that its provisions only prohibit the enforcement of collective bargaining contracts which require “membership” or “nonmembership” in labor organizations. They argue the language is simple, plain and completely unambiguous.
A constitution must be interpreted liberally to carry into effect the principles of government which it embodies. It deals broadly with general subjects, and its language should not be interpreted in any narrow, refined or subtle sense, but should be held to mean what the words imply to the common understanding of men. (State v. Sessions, 84 Kan. 856, 115 Pac. 641.) The constitution is not to be construed in a technical manner, but in ascertaining its meaning the courts consider the circumstances attending its adoption and what appears to have been the understanding of the people when they adopted it. (Hunt v. Eddy, 150 Kan. 1, 90 P. 2d 747; and State, ex rel., v. Fadely, 180 Kan. 652, 659, 308 P. 2d 537.)
Story was quoted with approval in State v. Sessions, supra, as follows:
“ ‘Constitutions are not designed for metaphysical or logical subtleties, for niceties of expression, for critical propriety, for elaborate shades of meaning, or for the exercise of philosophical acuteness or judicial research. They are instruments of a practical nature, founded on the common business of human life, adapted to common wants, designed for common use, and fitted for common understanding. The people make them, the people adopt them, the people must be supposed to read them, with the help of common sense, and can not be presumed to admit in them any recondite meaning or any extraordinary gloss.’ . . .” (1 Story on the Const., 5th Ed., § 451.)
When interpreting or construing a constitutional amendment, the court must examine the language used and view it in connection with the general facts and circumstances which caused the amendment to be submitted. (State, ex rel., v. Anderson, 180 Kan. 120, 299 P. 2d 1078.)
The basic issue upon which the campaign was conducted prior to the adoption of the constitutional amendment by the people of Kansas was whether or not the worker should be a “free rider” who takes advantage of benefits secured by a union without contributing his share to its support. Those supporting adoption of the amendment contended the worker should not be required to support a labor organization which he may oppose. Without question the people felt by adopting the amendment the decision would prevent the payment of forced tribute to any labor organization by any worker within the boundaries of this state.
It is apparent from the memorandum decision of the trial court that it looked for some specific provision in the Kansas constitutional amendment which prohibited the execution or application of a collective bargaining agreement requiring a nonmember employee to pay money to a labor union. Since no such specific provision was found, the trial court applied a narrow construction to the constitutional amendment.
The appellees contend Kansas was one of the last states to enact the so-called “right to work law.” They argue approximately nineteen of the states enacted “right to work laws” prior to the adoption of the Kansas constitutional amendment; that ten prohibited the collection of fees or charges without the employees’ consent; and that nine did not so provide, among these being the State of Kansas. It is argued that inasmuch as the state legislators’ attention had already been directed to the broader type of restraining law (In 1951 Senate Bill No. 116, incorporating the more restrictive language, failed to pass), and since there were in existence these two types of legislation dealing with this subject matter, known to the legislature at the time the particular constitutional amendment was suggested, it must be considered conclusive the legislature did not see fit to incorporate in the specific statute the more restrictive language.
It is unnecessary to consider in detail the laws of other states, some of which are constitutional amendments and others statutory enactments by the legislatures of the respective states. The foregoing argument of the appellees will be answered as our opinion further develops.
In support of the trial court’s decision the appellees rely on Meade Electric Company v. Hagberg, (Ind.), 159 N. E. 2d 408. There the Second Division of the Indiana Appellate Court said the Indiana right to work law is plain and unambiguous, and there is no prohibition against a provision requiring the payment of fees or charges to a labor organization. It held the Indiana law merely prohibits agreements and conduct which conditions employment on membership in a labor organization.
The decision of the court that the proposed agency shop clause did not violate the Indiana right to work law, made consideration of further issues presented immaterial to its decision. The Indiana decision is analyzed by George Rose, an Indianapolis attorney, in an article entitled “The Agency Shop v. the Right-to-Work Law” in 9 Labor Law Journal, p. 579. For a different approach see an article by Norman E. Jones on “The Agency Shop” in 10 Labor Law Journal, p. 781.
In two particulars the Meade case must be distinguished from the facts presented by the instant appeal. First, the Indiana right to work law was a legislative enactment calling for a different rule of construction than is ordinarily applied to constitutional amendments. Second, the Indiana law contained a penal provision declaring violations thereof to be misdemeanors with penalties upon conviction as set forth therein. The Indiana court said in its opinion:'
“The above-quoted Right to Work Law contains a penalty provision. The law is well settled that penal statutes will be strictly construed, and not con strued to include anything beyond, its letter, though within its spirit, and it cannot be enlarged by construction, implication or intendment beyond the fair meaning of the language used. Van Arsdall v. Indiana Bell Telephone Co., 1926, 84 Ind. App. 257, 259, 161 N. E. 19; Evansville & Ohio Valley Railway Co., Inc. v. Southern Indiana Rural Electric Corporation, Inc., 1953, 231 Ind. 648, 652, 109 N. E. 2d 901 . . .” (p. 412.)
Here the court is not confronted with a penal statute to be strictly construed, but a remedial constitutional amendment to be liberally construed to effectuate the purpose for which it was adopted.
Clearly our state courts have jurisdiction to construe and interpret Kansas law — whether the agency shop clause in the instant case violates the Kansas constitutional amendment adopted pursuant to specific authorization granted by Congress. The construction of state constitutional and statutory provisions is left to the states in the first instance, if the state has authority to enact such law. (See, Williams v. Oklahoma, 358 U. S. 576, 3 L. Ed. 2d 516, 79 S. Ct. 421, rehearing denied, 359 U. S. 956, 3 L. Ed. 2d 763, 79 S. Ct. 737.)
This court has held when the interpretation of a statute (not penal in nature) according to the exact and literal import of its word would defeat the manifest purpose of the legislature in its enactment, it should be construed according to its spirit and reason, disregarding as far as may be necessary, the strict letter of the law. (Clark v. Murray, 141 Kan. 533, 41 P. 2d 1042.) One of the specific matters which may be considered in ascertaining the intention of the legislature, where it becomes material, is to fix what the situation was at the time of the enactment of the particular statute in controversy. (Natural Gas Pipeline Co. v. Commission of Revenue 6- Taxation, 163 Kan. 458, 183 P. 2d 234; see, also, Hunziker v. School District, 153 Kan. 102, 109 P. 2d 115, and authorities cited therein.) These rules become material concerning interpretation of the legislative enactment of 1957 pursuant to which the “right to work amendment” was submitted for referendum.
The rule in favor of liberal construction and against strict construction of a statute applies with even greater force when the court is interpreting constitutional provisions. Constitutional provisions are of necessity concise and general in their terms, while statutes, in general, are more specific.
The Kansas legislature in drafting the constitutional amendment must have been fully aware of the only criteria of membership recognized by the National Labor Relations Act, as amended. By virtue of the language in section 8 (a) (3) (B) of the Taft-Hartley Act, heretofore quoted, it is apparent that the authority granted under this section is not primarily to compel membership in the union, but to permit the unions to require workers to pay dues and initiation fees to support the union. This is made clear by the Supreme Court of the United States in Radio Officers v. Labor Board, (1954), 347 U. S. 17, 98 L. Ed. 455, 74 S. Ct. 323. It was said in the opinion:
“. . . Lengthy legislative debate preceded the 1947 amendment to the Act which thus limited permissible employer discrimination. This legislative history clearly indicates that Congress intended to prevent utilization of union security agreements for any purpose other than to compel payment of union dues and fees. Thus Congress recognized the validity of unions’ concern about ‘free riders,’ i. e., employees who receive the benefits of union representation but are unwilling to contribute their share of financial support to such union, and gave unions the power to contract to meet that problem while withholding from unions the power to cause the discharge of employees for any other reason . . .” (pp. 40, 41.) (Emphasis added.)
In Union Starch & Refining Co. v. National Labor Rel. Bd., (1951), 186 F. 2d 1008, employees who had offered to pay their dues and fees were rejected by the union because they were unwilling to take the obligation of membership, and their discharge was required. The Seventh Circuit Court upheld the National Labor Relations Board in ruling that the discharge was wrongful because if a union “imposes any other qualifications and conditions for membership with which he is unwilling to comply, such an employee may not be entitled to membership, but he is entitled to keep his job.” In the opinion the court said:
“We agree that the Union had the right, under the statute here involved, to prescribe nondiscriminatory terms and conditions for acquiring membership in the Union, but we are unable to agree that it may adopt a rule that requires the discharge of an employee for reasons other than the failure of the employee to tender the periodic dues and initiation fees. . . .” (p. 1012.)
Similar decisions have been made under the 1951 amendment to the Railway Labor Act (45 U. S. C., § 152, Eleventh) which permits carriers and unions to enter into union- shop agreements. (Pennsylvania R. Co. v. Rychlik, [1957], 352 U. S. 480, 1 L. Ed. 2d 480, 77 S. Ct. 421; and Railway Employes’ Dept. v. Hanson, [1956], 351 U. S. 225, 100 L. Ed. 1112, 76 S. Ct. 714.)
The distinction between the Railway Labor Act expressly permitting union shop contracts, notwithstanding state laws, and section 14 (b) of the Taft-Hartley Act was noted in the Hanson case.
It is clear from the foregoing decisions, construing the union shop sections of the above two acts, Congress intended that an employee who paid the required union initiation fees and dues fulfilled his obligation under a union shop contract, and that the union could not require any other act as a condition of employment usually required prior to becoming a member. Therefore, since the payment of union dues and fees is the only support of the union permitted by federal law for unions to require as a condition of employment under union-security agreements, and not actual membership, the expression “membership in a labor organization as a condition of employment” in section 14 (b) of the Taft-Hartley Act becomes synonomous with payment of union dues and fees for enforcement purposes under union-security agreements so far as labor unions or employers are concerned.
It may be conceded the term “membership” in any organization when standing alone and in its ordinary significance imposes various responsibilities and confers various privileges upon members. It also clothes the officers of the organization with authority to exercise certain disciplinary measures upon members. However, the term to be construed in this case is not simply “membership in a labor organization,” but the more restricted expression “membership in a labor organization as a condition of employment.” Under these circumstances the language used by the Kansas legislature in drafting the constitutional amendment submitted for referendum assumes added significance, and the wording is not as clear and unambiguous as appellees would have us believe.
The natural and logical interpretation of the Kansas constitutional amendment, prohibiting compulsory membership in a labor organization as a condition of employment or continued employment, includes by necessary implication a prohibition against forced payment of initiation fees, union dues and assessments, or the equivalent, by a worker to a labor organization as a condition of employment or continued employment. This, we think, is the real and rather well-hidden meaning of the language employed by the legislature of Kansas in drafting the constitutional amendment submitted for referendum. The legislature must be considered to have been aware of the existing laws and decisions, above discussed, and it must have been aware that the courts have considered the required payment of union dues and fees as compliance with a contract provision requiring union membership, since under a union shop provision, payment of dues and fees was all that could be required as a condition of employment. Thus, the legislature must have decided it was unnecessary to include a more explicit provision in the amendment, or that to do so would have been superfluous.
The alternative would require this court to declare that the constitutional amendment serves no useful purpose at all. It would permit the appellees to circumvent its natural and logical interpretation.
The question presently before the court was presented to the Arizona Superior Court in Arizona Flame Restaurant, Inc. v. Baldwin, 26 Labor Cases, ¶ 68, 647; 34 L. R. R. M. 2707, affirmed as modified, Baldwin v. Arizona Flame Restaurant, 82 Ariz. 385, 313 P. 2d 759. The Arizona right to work amendment, A. R. S. Arizona Constitution, Article XXV (section 56-1302, A. C. A. 1952 Supp.; section 23-1302, A. R. S.) contains language almost identical to the Kansas constitutional amendment. There the defendant union demanded that the employer execute an agreement containing an agency shop clause, among others, in spite of the Arizona constitutional provision. The employer refused and picketing was commenced to enforce the union’s demand (conduct beyond the facts in the instant case). Action was instituted to enjoin the picketing. In the opinion the trial court said:
. . It is clear that it was the intent of the electorate to forbid both management and labor from imposing the requirement upon any person, as a condition of his employment, the participation by him in any form or scheme of employee representation. Consequently, it would require a most narrow and unrealistic construction of the existing laws to sanction a contract that would require employees not belonging to a union to contribute an assessment equal to the union dues to obtain or retain employment . . . This Court’s duty, under the evidence herein, becomes clear with respect to a holding that the agency shop clause violates the law of this State.” (p. 87, 172.)
On appeal the Supreme Court of Arizona found it unnecessary to determine whether the agency shop clause was lawful in the State of Arizona on the ground that the point had been abandoned.
The foregoing interpretation or construction of the Kansas constitutional amendment is in keeping with the common understanding of the citizens of Kansas who, after listening to and reading the arguments on both sides in a well-publicized campaign prior to the general election at which the matter was submitted for referendum, understood that adoption of the amendment would prevent the payment of forced tribute to any labor organization as a condition of employment by any worker within the boundaries of this state.
We hold the so-called “agency shop” provision in the contract here under attack violates Article 15, Section 12, of the Kansas Constitution, declaring the public policy of the state as determined by popular vote of the people of Kansas.
The appellees contend the legislative history of the Kansas constitutional amendment indicates the legislature did not intend to forbid the “agency shop” provision in union-security agreements. They cite failure of Senate Bill No. 116, incorporating more restrictive language, to pass in the 1951 session of the legislature. This argument is at best highly speculative. Wholly aside from the reasons heretofore assigned for our conclusion, the legislature must have recognized in 1951 the laws of Kansas already included legislation adopted in 1943, now appearing as G. S. 1949, 44-803. It provides:
“Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection, and such employees shall also have the right to refrain from any or all such activities.”
The foregoing statutory language is identical to section 7 of the Taft-Hartley Act (29 U. S. C., § 157), omitting the exception authorized in section 8 (a) (3) of the act. Thus, while the Wagner Act was still in full force and effect, the legislature of Kansas had declared that which was against the public policy of the State of Kansas. In Binder v. Local Union No. 685, 181 Kan. 799, 317 P. 2d 371, it was said:
“Applicable Kansas statutes provide for the rights of employees, define the unlawful acts of an employer, or any other person, and provide that which is against the public policy of this state.” (p. 804.) (Emphasis added.)
The right of employees guaranteed in the foregoing statute to refrain from assisting labor organizations includes the right to refrain from giving financial assistance as well as personal assistance. In other words, 44-803, supra, prohibits forced payment of union dues and fees by employees to labor organizations. It is therefore logical to assume the legislature in 1951 may have considered it unnecessary to submit a constitutional amendment on the same subject for referendum.
Are the provisions of the Kansas constitutional “right to work amendment,” as above construed, consistent with section 14 (b) of the National Labor Relations Act, as amended? Embraced within this question is whether a state is permitted to invalidate contracts making employment conditional on the payment of dues and fees to a labor organization.
What has heretofore been said concerning the federal law, particularly the discussion leading up to construction of the expression “membership in a labor organization as a condition of employment” used by Congress in section 14 (b) of the Taft-Hartley Act, relates directly to the above question.
It is immaterial to our decision herein that the agency shop provision of the contract here under attack labels the charge to employees, as a condition of continued employment, “an amount of money equal to that paid by other employees in the bargaining unit who are members of the Union, which shall be limited to an amount of money equal in the Union s regular and usual initiation fees, and its regular and usual dues and its general and uniform assessments.” (Emphasis added.) This is nothing more than camouflage and is in substance a charge for union dues and fees within the meaning of sections (a) (3) (B) of the Taft-Hartley Act.
But for the Kansas “right to work” law the agency shop provision would presumably be a proper subject of negotiation in a collective bargaining agreement under the Taft-Hartley Act (Public Service Company of Colorado, [1950], 89 N. L. R. B. 418; and American Seating Company, [1952], 98 N. L. R. B. 800.) Recently the National Labor Relations Board in General Motors Corp., (Feb. 20, 1961), 1961 C. C. H., N. L. R. B., ¶ 9663, p. 14,978, in a three to two decision held that an employer does not violate the National Labor Relations Act, as amended, by refusing to bargain with a union with respect to the inclusion in a bargaining contract, covering workers in a state which has a “right to work” law, of an agency shop provision which requires nonunion workers to pay the union, as a condition of continued employment, a fee equivalent to the dues and initiation fees paid by union members even though the agency shop is lawful under the state law. (See, Meade Electric Company v. Hagberg, [Ind.], supra.)
The material language in section 14 (b) of the Taft-Hartley Act is “agreements requiring membership in a labor organization as a condition of employment.” (Emphasis added.) Prior to the adoption of section 14 (b) the legislature of some states had adopted more detailed, technical statutory enactments dealing with this subject. Not being in the broad form of constitutional amendments, these statutes provided not only that the right to work should not be abridged by reason of membership or nonmembership in labor organizations, but also contained the more detailed language, made possible by the legislative process, forbidding, in substance, any payments to any labor union or labor organization as a condition of employment or continued employment. Clearly, Congress had these state laws in mind prior to and at the time section 14 (b) was enacted.
This is evidenced by the report of the managers on the part of the House which states with reference to section 13 of the House Bill (HR 3020) and section 14 of the conference committee amendments:
“Under the House bill there was included a new section 13 of the National Labor Relations Act to assure that nothing in the Act was to be construed as authorizing any closed shop, union shop, maintenance of membership, or other form of compulsory unionism agreement in any State where tire execution of such agreement would be contrary to state law. Many States have enacted laws or adopted constitutional provisions to make all forms of compulsory unionism in those States illegal. It was never the intention of the National Labor Relations Act, as is disclosed by the legislative history of that Act, to pre-empt the field in this regard so as to deprive the States of their powers to prevent compulsory unionism. Neither the so-called 'closed shop’ proviso in section 8 (3) of the existing Act nor the union shop and maintenance of membership proviso in section 8 (a) (8) of the conference agreement could be said to authorize arrangements of this sort in States where such arrangements were contrary to the State policy. To make certain that there should be no question about this, section 13 was included in the House bill. The conference agreement, in section 14 (b), contains a provision having the same effect.” (93 Cong. Rec., June 4, 1947, p. 6378.) (Emphasis added.)
With this background and the expressed intent of Congress to leave the states free to prevent all forms of compulsory unionism, and taking into consideration many other states which have adopted detailed statutes, and many states such as Kansas which have adopted the broader use of constitutional amendments designed to accomplish the same purpose, there is little question that Congress and many state legislatures have construed the words “membership in a labor organization as a condition of employment” as embracing and including forced payments to unions of dues, fees and other charges regardless of the appellation applied thereto.
Obviously, if this were not true and the “agency shop” provision in a union-security agreement is not within the compass of section 14 (b), statutes in those states in which the more detailed language has been used prohibiting forced payments to unions of dues, fees and other charges would fall by their own weight. In view of the language used in section 14.(b) there seems to be little purpose for the states to enact laws or adopt constitutional amendments in the more detailed terminology. The language used in the Kansas constitutional amendment is substantially the same language used in section 14 (b).
The fallacy of the trial court’s decision, as reflected by its memorandum, is that it assumes Congress intended section 14 (b) as a grant of authority to the states to enact “right to work” laws which prohibit the agency shop provision, requiring workers to pay the regular union dues, fees and assessments, but refuses to construe the Kansas constitutional amendment, not having contained such specific provision, although worded in substantially the same language as section 14 (b), in the same manner: Section 14 (b), like the Kansas amendment, contains no specific provision prohibiting agreements which require workers to pay dues, fees and assessments, as a condition of employment. Such a prohibitory provision is, for the reasons mentioned, necessarily implied, the payment of such sums to the union being an incident of union membership. The trial court, having correctly assumed that such a prohibitory provision was implied in section 14 (b). was completely inconsistent in holding that it was not also implied in the Kansas constitutional amendment.
Does a state court have jurisdiction to grant the injunctive relief requested by the appellants or is this matter within the exclusive domain of the National Labor Relations Board under the federal pre-emption doctrine?
Section 14 (b) of the Taft-Hartley Act was before the United States Supreme Court in Algoma Plywood Co. v. Wis. Board, 336 U. S. 301, 93 L. Ed. 691, 69 S. Ct. 584. There the Wisconsin Employment Relations Board ordered an employer to cease and desist from giving effect to a maintenance of membership clause in a collective bargaining agreement on the ground that such clause was in violation of state statute. On writ of certiorari the Supreme Court affirmed the power of the state to enforce its statute. The opinion notes that 95% of the employer’s production was sold in interstate commerce. In the opinion it was said:
“. . . Had the sponsors of the National Labor Relations Act meant to deny effect to State policies inconsistent with the unrestricted enforcement of union-shop contracts, surely they would have made their purpose manifest . . .” (p.306.)
After a review of the legislative history, the court went on to state:
"Other provisions of the Taft-Hartley Act make it even clearer than the National Labor Relations Act that the States are left free to pursue their own more restrictive policies in the matter of union-security agreements. Because jf 8 (S) of the new Act forbids the closed shop and strictly regulates the conditions under which a union-shop agreement may be entered, § 14 (b) was included, to forestall the inference that federal policy was to be exclusive . . .
“. . . But if there could be any doubt that the language of the section means that the Act shall not be construed to authorize any ‘application’ of a union-security contract, such as discharging an employee, which under the circumstances ‘is prohibited’ by the State, the legislative history of the section would dispel it. See S. Rep. No. 105, 80th Cong., 1st Sess. 5-7; H. R. Rep. No. 245, 80th Cong., 1st Sess. 9, 34, 40, 44; H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess. 60; 93 Cong. Rec. 3554, 3559, 4904, 6383-84, 6446; H. R. 3020, 80th Cong., 1st Sess., as reported, § 13.” (pp. 313, 314.) (Emphasis added.)
While the court in Algoma was not confronted with an agency shop provision in a collective bargaining agreement, as here, it did involve the application of an agreement containing a union-security provision, a maintenance of membership clause in a union shop provision. It was not complicated by independent conduct defined as an unfair labor practice under the National Labor Relations Act or the Taft-Hartley Act. We are confronted solely with the application of a contract containing a union-security provision, an agency shop provision, and except insofar as execution or application of the agreement itself may also involve a protected or prohibited activity under the Taft-Hartley Act, the case is not complicated by independent conduct which may arguably be a protected or prohibited activity under the act.
The union contends the Algoma decision has been overruled by Plankinton Packing Co. v. Wisconsin Employment Relations Board et al., 338 U. S. 953, 94 L. Ed. 588, 70 S. Ct. 491. There certiorari was granted and the Supreme Court of Wisconsin reversed in a per curiam decision by the United States Supreme Court, citing Bethlehem Co. v. State Board, 330 U. S. 767, 91 L. Ed. 1234, 67 S. Ct. 1026; and La Crosse Tel. Corp. v. Wis. Board, 336 U. S. 18, 93 L. Ed. 463, 69 S. Ct. 379. (See, Wisconsin E. R. Board v. Plankinton Packing Co., 255 Wis. 285, 38 N. W. 2d 688.) We do not agree. While it is true the)Wisconsin court cited the Algoma decision as authority for its ruling, it does not follow that the per curiam reversal overruled Algoma. In Algoma the court was confronted with the application of a union-security provision in a collective bargaining agreement, while in Planldnton the facts disclosed independent conduct intended to coerce and intimidate the complainant and to bring about his loss of employment because he had exercised his right to refrain from membership in the respondent union. It also involved conduct by the officers, agents and employees of the respondent union intended to coerce, intimidate and induce the respondent employer to discharge the complainant. This independent conduct fell within the category of unfair labor practices prohibited by section 8 of the Taft-Hartley Act and was within the domain of federal pre-emption.
The union also relies on United States Supreme Court opinions involving complaints that certain activities of unions violated a state “right to work” law. They cite Local Union 429, International Brotherhood of Electrical Workers, A. F. of L., et al. v. Farnsworth & Chambers Co., Inc., 353 U. S. 969, 1 L. Ed. 2d 1133, 77 S. Ct. 1056; and Youngdahl v. Rainfair, Inc., 355 U. S. 131, 2 L. Ed. 2d 151, 78 S. Ct. 206.
In Farnsworth a representative of the union approached the employer and protested that the employer was not employing union labor and threatened to vacate the plant if union laborers were not employed. Upon refusal peaceful picketing resulted, and injunctive relief followed. Certiorari wás granted and the Tennessee court reversed in a per curiam decision, citing Weber v. Anheuser-Busch, Inc., 348 U. S. 468, 99 L. Ed. 546, 75 S. Ct. 480; and Garner v. Teamsters Union, 346 U. S. 485, 98 L. Ed. 228, 74 S. Ct. 161. (See, Farnsworth & Chbrs. v. I. B. E. W. 429, 201 Tenn. 329, 299 S. W. 2d 8.) On similar facts this court recognized the domain of federal preemption in Kaw Paving Co. v. International Union of Operating Engineers, 178 Kan. 467, 290 P. 2d 110.
In the Youngdahl case the employees of the plant were not members of a labor union. In an effort to compel the employer to recognize the union as tire bargaining agent of the employees, some of the employees struck and picketed the plant. The picketing was accompanied by conduct calculated to provoke violence, and the trial court issued a blanket injunction against all conduct which the Arkansas Supreme Court affirmed. The United States Supreme Court reversed to the extent that the injunction prohibited peaceful picketing of the employer’s premises. There the board had not conducted a representation election nor had the union been certi fled. In an election conducted after the injunction was issued a majority of the employees voted not to be represented by the union.
These cases do not control the facts presently before the court, since neither related to either the execution or application of agreements requiring membership in a labor organization as a condition of employment. Insofar as federal pre-emption was asserted they relate to independent conduct which was either protected or prohibited under the Taft-Hartley Act.
In reliance upon the provisions of section 14 (b) the union contends, regarding agreements prohibited by state law, that “the employer and Union negotiating such a contract in Kansas would violate Section 7 of the National Labor Relations Act and in this case the employer would violate Section 8 (a) (1) of the National Labor Relations Act by interfering with the rights of employees guaranteed by Section 7 and also violate Section 8 (a) (3) of the Act by discrimination in regard to a term or condition of employment for the purpose of encouraging membership in a labor organization. The Union would violate 8 (b) (1) of the Act by restraining employees in the exercise of their rights guaranteed by Section 7 and the union would violate 8 (b) (2) by causing an employer to discriminate against an employee in violation of Section 8 (a) (3).” Therefore, it is argued control over such conduct falls within the domain of federal pre-emption and is governed exclusively through the National Labor Relations Board. They rely upon San Diego Unions v. Garmon, 359 U. S. 236, 3 L. Ed. 2d 775, 79 S. Ct. 773, which is the second appearance of the case before the United States Supreme Court. There the unions sought from the respondents an agreement to retain in their employ only those workers who were already employees of the union, or who applied for membership within thirty days. The respondents refused claiming that none of their employees had shown a desire to join the union, and that in any event they could not accept such arrangement until one of the unions had been designated by the employees as a collective bargaining agent. The unions began at once to peacefully picket the respondents’ place of business, and to assert pressure on customers and suppliers in order to persuade them to stop dealing with respondents. The sole purpose of these pressures was to compel execution of the proposed contract. This conduct was held to be within the domain of federal pre-emption under the Taft-Hartley Act.
On similar facts nearly two years before the second Garmon decision was announced this court applied the doctrine of federal pre-emption in Asphalt Paving v. Local Union, 181 Kan. 775, 317 P. 2d 349, in which the provisions of section 14 (b) of Taft-Hartley were asserted.
We are not unmindful of the broad sweep of the language used in the second Garmon decision and particularly the following language which appears to summarize the doctrine of federal preemption:
“When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield . . (p. 244.)
and further in the opinion where the court says:
“. . . When an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of tire National Labor Relations Board if the danger of state interference with national policy is to be averted.” (p. 245.)
However, in view of Algoma, to which the Federal Supreme Court adheres as we construe the decisions, we do not regard the second Garmon decision as controlling of the facts in the instant case. Algoma was cited with approval in Weber v. Anheuser-Busch, Inc., 348 U. S. 468, 99 L. Ed. 546, 75 S. Ct. 480, which dealt with federal pre-emption under the Taft-Hartley Act, in the following language:
“The Court allowed a State to forbid .enforcement of a maintenance-of-membership clause in a contract between employer and union in Algoma Plywood b Veneer Co. v. Wisconsin Employment Relations Board, 336 U. S. 301. Since nothing in the Wagner or Taft-Hartley Acts sanctioned or forbade these clauses, they were left to regulation by the State.” (p. 477.)
As recently as January 19, 1959, the Supreme Court pointed out the special position occupied by the states under section 14 (b) of Taft-Hartley. The following footnote appears in Teamsters Union v. Oliver, 358 U. S. 283, 296, 297, 3 L. Ed. 2d 312, 79 S. Ct. 297:
“10. In Algoma, state law was allowed to operate to restrict a provision of a collective bargaining contract only after it was found after an exhaustive examination of the legislative history of the Wagner Act that Congress intended to leave the special subject of the legality of maintenance of membership clauses up to the States through § 8 (3) of that Act, 49 Stat. 452. Questions of the nature that we consider today were expressly left open. 366 U. S., at 312.”
The union’s contention that state authority is ousted because the union was certified by the National Labor Relations Board was answered in Algoma as follows:
“It remains to consider whether certification of the Union by the National Labor Relations Board in 1942 thereby forever ousted jurisdiction of the Wisconsin Board to enjoin practices forbidden by Wisconsin law. Since the enumeration by the Wagner Act and the Taft-Hartley Act of unfair labor practices over which tire National Board has exclusive jurisdiction does not prevent the States from enforcing their own policies in matters not governed by the federal law, such freedom of action by a State cannot be lost because the National Board has once held an election under the Wagner Act. The character of activities left to State regulation is not changed by the fact of certification. Certification, it is true, makes clear that the employer and the union are subject to federal law, but that is not disputed. So far as the relationship of State and national power is concerned, certification amounts to no more than an assertion that as to this employer the State shall not impose a policy inconsistent with national policy, Hill v. Florida, 325 U. S. 538, or the National Board’s interpretation of that policy, Bethlehem Steel Co. v. New York S. L. R. B., 330 U. S. 767; La Crosse Telephone Corp. v. Wisconsin E. R. B., 336 U. S. 18. Indeed, the express disclaimer in jf 8 (S) of the National Labor Relations Act of intention to interfere with State law and the permission granted the States by § 14 (b) of the Taft-Hartley Act to carry out policies inconsistent with the Taft-Hartley Act itself, would be-practically meaningless if so easily avoided. For these provisions can have application, obviously, only where State and federal power are concurrent; it would have been futile to disclaim the assertion of federal policy over areas which the commerce power does not reach." (pp. 314, 315.) (Emphasis added.)
In Bus Employees v. Wisconsin Board, (1951), 340 U. S. 383, 95 L. Ed. 364, 71 S. Ct. 359, it was said Congress knew full well that its labor legislation pre-empts the field that the act covers insofar as commerce within the meaning of the act is concerned, and demonstrated its ability to spell out with particularity those areas in which it desired state regulation to be operative, citing among other sections 14 (b) of the Taft-Hartley Act.
As we construe the decisions of the United States Supreme Court the question presented by the instant case is not whether the union or the employer might be guilty of unfair labor practices under the Taft-Hartley Act in executing the labor relations agreement in controversy containing the agency shop provision, or in its application. In yielding to the states permission to enact “right to work” laws by section 14 (b), Congress granted authority to the state courts to process violations of such laws. There would be little point in permitting the states to enact such laws if they could not be enforced by the states.
Several Kansas works have been published since the adoption of the Kansas “right to work amendment:” Banowetz, Is Compulsory Unionism Now Barred in Kansas?, 27 J. B. K. 207 (1958); Beaty, The Agency Shop Agreement and The Right-to-Work Law, 27 J. B. K. 348 (1959); and Hopson, Whither Hurried Hence — The New Right to Work Amendment, 8 Kan. L. Rev. 18.
In conclusion we hold the decision of the district court violates the true intent and purpose of the Kansas constitutional amendment (Art. 15 § 12), commonly known as the “right to work amendment,” which is properly within the scope of section 14 (b) of the Taft-Hartley Act pursuant to which it was adopted, and the courts of this state have jurisdiction to process violations of such amendment.
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|
Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, William J. Hunsaker, of Wheat Ridge, Colorado, an attorney admitted to the practice of law in Colorado and in Kansas in 1965.
On September 23, 2008, the office of the Disciplinary Administrator in Kansas filed a formal complaint against the respondent alleging a violation of the Kansas Rules of Professional Conduct (KRPC). On October 14, 2008, the respondent filed an answer to the formal complaint. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on January 21, 2009, where the respondent was both personally present and represented by counsel. The hearing panel determined that respondent violated KRPC 8.4(d) (2008 Kan. Ct. R. Annot. 586) (misconduct). Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
“FINDINGS OF FACT
“2. On January 14, 2008, the Respondent entered into a Stipulation, Agreement and Affidavit Containing the Respondent’s Conditional Admission of Misconduct with the Colorado Regulation Counsel. The Respondent stipulated to the following facts:
‘a. Respondent has a son, William Hunsaker, Jr. (‘Billy’), who was a lawyer licensed in Colorado.
‘b. In June 2003, the Larimer County DA’s office filed charges against Billy including two counts of sexual assault on a child and two counts of conspiracy to commit sexual assault on a child. Later in September 2003, two additional charges of assault on a child were added.
‘c. Billy was arrested, and on June 20, 2003, respondent and his wife (Billy’s mother) posted a property bond in the amount of $350,000.00 to assure their son’s appearance.
‘d. On August 18, 2004, Billy appeared in court at a setting along with his attorney. At that hearing Billy’s bond was continued until the trial setting of September 13, 2004.
‘e. Shortly before the date of the trial setting, Billy took certain actions all with respondent’s knowledge and consent.
‘f. On August 27,2004, respondent was added as a signatory on Billy’s checking at US Bank. There were then only two signatories on that checking account, Billy and respondent, his father.
‘g. Billy transferred his home in Highlands Ranch to respondent.
‘h. Billy also transferred the title to his Chevrolet Corvette to respondent.
1. On September 9, 2004, both counsel for Billy appeared before the court, and moved to withdraw. The court denied their Motions to Withdraw. The court vacated the trial date of September 13, 2004, but still ordered that Billy’s bond was returnable on that date, j. On Friday, September 10, 2004, respondent deposited $3,000.00 of respondent’s own money into his son’s checking account, according to respondent, to provide funds for automatic withdrawals.
‘k. Billy failed to appear on Monday, September 13, 2004, and on that same day a warrant was issued for his arrest.
1. Respondent first learned that his son had not appeared on that same day, September 13, 2004, when Wheat Ridge Police officers showed up in his office to ask where Billy was.
‘m. On September 15, 2004, respondent personally went to the US Bank where Billy’s bank account was and deposited a check for $1,833.82, drawn on respondent’s office, according to respondent, to provide funds to cover automatic withdrawals.
‘n. Respondent claims these funds were owed to Billy for work performed by Billy while working for respondent’s law firm.
‘o. Various withdrawals from Billy’s checking account were made by an ATM card. Beginning on about September 20, 2004, ATM withdrawals were made on Billy’s checking account from Mexico. The last ATM withdrawal from Mexico was about 4 days later. On about September 27, 2004, an ATM withdrawal on Billy’s account was made from Guatemala, p. There were subsequent withdrawals and transactions with that card accessing Billy’s checking account from Guatemala until about December 2, 2004.
‘q. Respondent looked at monthly bank statements and knew about ATM withdrawals from Mexico. Further, respondent assumed at some point that Billy was making these withdrawals.
r. On September 27, 2004, respondent deposited $9,000.00 into his son’s checking account. Respondent made this payment from his own funds into his son’s account. Respondent stated that this was an advance made into Billy’s checking account from proceeds that would be gained on the sale of Billy’s Corvette.
‘s. Respondent deposited three checks each in the amount of $1,833.00 into Billy’s checking account on October 4, October 18, and October 29,2004. Respondent claims these funds were owed to Billy for work performed by Billy at respondent’s law firm.
‘t. Respondent sold his son’s Corvette for $15,000.00 and on November 17, 2004, respondent deposited $6,000.00 by a cashiers check into his son’s checking account. Respondent reimbursed himself for the $9,000.00 advance to Bill’s [sic] checking account.
‘u. Respondent listed his son’s house for sale and the sale closed on November 19, 2004. On December 1, 2004, respondent deposited almost $6,000.00 from that sale into his son’s checking account. The balance of $90,000.00 from the sale was used to reimburse respondent for funds loaned by respondent and his 401K plan secured by second and third mortgages on the house.
V. The activity in Billy’s checking account slowed down after December 2, 2004. The last ATM withdrawal was on that date.
‘w. Billy was arrested in Costa Rica in March 2005 and extradited to Larimer County. In 2005 Billy was convicted of various felonies including sexual assault on a child. He was disbarred effective July 2005.
‘x. Respondent closed Billy’s checking account on March 24, 2005. y. In summary, after September 13, 2004, when Billy failed to appear at his trial, respondent deposited about $34,000.00 into his son’s checking account.
‘z. All ATM withdrawals from the account were from Mexico, Guatemala and perhaps Costa Rica and amounted to almost $19,000.00.
‘aa. Through the respondent’s conduct described above, the respondent has engaged in conduct constituting grounds for the imposition of discipline pursuant to C.R.C.P. 251.5. The Respondent has also violated Colo. RPC Colo RPC 8.4(d) (engaged in conduct prejudicial to the administration of justice).’
“3. The Respondent also agreed to a 90 day suspension. The Respondent’s stipulation was conditioned upon the Presiding Disciplinary Judge accepting the recommended discipline.
“4. On January 15, 2008, the Presiding Disciplinary Judge accepted the Respondent’s stipulation and the recommendation regarding discipline. The Respondent’s license to practice law in Colorado was suspended for 90 days beginning January 20, 2008.
“CONCLUSIONS OF LAW
“1. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 8.4(d), as detailed below.
“2. ‘It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.’ KRPC 8.4(d). In this case, the Respondent engaged in ‘conduct that is prejudicial to the administration of justice’ when he provided financial assistance to his son when his son was evading criminal prosecution. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(d).
“AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS
“In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duty to the system to avoid activity which prejudices justice.
“Mental State. The Respondent knowingly violated his duty.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injury to the legal system.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factor present:
“Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1965. At the time the Respondent engaged in misconduct, the Respondent had been practicing law for more than 40 years. Accordingly, the Hearing Panel concludes that the Respondent had substantial experience in the practice of law at the time he engaged in the misconduct.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined.
“The Present and Past Attitude of the Attorney as Shown by the Respondent’s Cooperation During the Hearing and the Respondent’s Acknowledgment of the Transgressions. The Respondent fully cooperated in the disciplinary process.
“Remorse. At the hearing on the Formal Complaint, the Respondent expressed genuine remorse.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system.’ Standard 7.2.
“RECOMMENDATION
“The Disciplinary Administrator recommended that the Respondent be suspended for 90 days. The Respondent recommended that no discipline be imposed. The Respondent reasoned that he has already been suspended by Colorado for the same misconduct. The Respondent acknowledged, however, that if the Hearing Panel must recommend discipline, that a 90-day suspension would be appropriate.
“Based upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be suspended for a period of 90 days from the practice of law in the State of Kansas.
“Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinary Administrator.”
Discussion
In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009); see Supreme Court Rule 211(f) (2008 Kan. Ct. R. Annot. 313).
The respondent did not take exception with the panel’s final hearing report set forth above. Thus, the hearing panel’s final report is deemed admitted. Supreme Court Rule 212(c) (2008 Kan. Ct. R. Annot. 327).
We conclude the panel’s findings of fact are supported by clear and convincing evidence and that these findings support the panel’s conclusions of law. We therefore adopt those findings and conclusions. With respect to the discipline to be imposed, the panel’s recommendation that the respondent be suspended from the practice of law in Kansas for a period of 90 days is advisory only and shall not prevent the court from imposing a different discipline. Supreme Court Rule 212(f).
The respondent admits that his misconduct amounted to deceit in violation of KRPC 8.4(c). As the panel noted in its final hearing report, the respondent has been licensed to practice law in Kansas since 1965, although he has apparently never practiced law in this state. He has no previous disciplinary violations, has fully cooperated in these disciplinary proceedings, has acknowledged his wrongdoing, and has expressed genuine remorse for his actions.
At the same time, the charges alleged in the Colorado disciplinary complaint and stipulated to by the respondent are serious and led to a delay of several months in the criminal proceedings against his son. Given the gravity of these allegations, a minority of this court would impose a sanction of indefinite suspension from the practice of law in this state. A majority of this court concludes, based on the limited record before us, that the panel’s recommended sanction of a 90-day suspension from the practice of law in Kansas is appropriate.
Conclusion and Discipline
It Is Therefore Ordered that respondent William J. Hunsaker be and he is hereby suspended from the practice of law in the state of Kansas for a period of 90 days, effective the date of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2008 Kan. Ct. R. Annot. 308).
It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports. | [
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The opinion of the court was delivered by
Lockett, J.:
The plaintiff, Arnold Ruebke, Jr., contends that the defendant libeled him in a March 1985 magazine article. The Reno County District Court granted the defendant’s motion for summary judgment. The plaintiff appeals.
Appellee, Globe Communications Corporation (Globe), publishes a crime magazine, Startling Detective, sold throughout the United States on a bi-monthly basis. In March 1985, Arnold Ruebke, Jr., was being tried for three counts of first-degree murder and three counts of aggravated kidnapping in the district court of Reno County, Kansas. On March 8, 1985, after Ruebke’s preliminary examination, Globe distributed its May 1985 issue of Startling Detective, which included a feature story entitled “Killer Who Came Straight From Hell,” with an overline stating, “Kansas Has Another ‘In Cold Blood’ Case.” The article recited the events surrounding the October 29, 1984, kidnapping and murder of two-year-old twins, James and Andrew Vogelsang, and their babysitter, Tammey Mooney. The article detailed the investigation of the murder; the manner in which Ruebke was determined to be the prime suspect; and how Ruebke turned himself in to the police seeking protective custody, was then arrested, and eventually charged. The final paragraph of the article stated:
“By law, until such time as he may be judged at a fair trial, Arnold Leroy Ruebke must be considered to be innocent of the charges that have been placed against him.”
The story was written by an independent contractor or “stringer,” Jack F. Heise, using the pen name “Larry Mauro.” Since 1970, Heise had supplied the magazine with over 800 articles. Facts for the story were gathered from numerous newspaper reports appearing in The Hutchinson News, other Kansas newspapers, and wire service stories reported by United Press International and Associated Press.
On March 12, 1985, Ruebke filed a libel action against Globe based on publication of the article. In his complaint Ruebke alleged that the article was false and defamatory and written to convict him prior to his trial. On January 27, 1986, Globe filed a motion for summary judgment. Ruebke was convicted on all counts on June 6, 1985. On June 4, 1986, the district court adopted defendant’s statement of uncontroverted facts due to plaintiff s failure to comply with Supreme Court Rule 141 (235 Kan. cx) and granted summary judgment to defendant, finding that (1) since Ruebke was convicted on June 6,1985, of all crimes referred to in the article, the statements were true and an absolute defense, and (2) even if the statements were not true, Ruebke, a limited public figure, had failed to prove malice on the part of defendant, and (3) plaintiff had failed to allege damage to his reputation. Arnold Ruebke, Jr.’s criminal conviction was affirmed by this court in January of 1987. State v. Ruebke, 240 Kan. 493, 731 P.2d 842 (1987).
The sole issue raised on appeal is whether the trial court erred in granting summary judgment and in its findings of fact and conclusions of law. Initially Ruebke claims that the trial court erred in adopting Globe’s argument that the subsequent finding of guilty for the murders rendered him “libel proof’ and thus incapable of claiming injury to reputation. In support of this argument, Globe relied on several cases where courts held criminal defendants to be “libel proof.” Wynberg v. National Enquirer, Inc., 564 F. Supp. 924 (C.D. Cal. 1982); Logan v. District of Columbia, 447 F. Supp. 1328 (D.D.C. 1978); and Ray v. Time, Inc., 452 F. Supp. 618 (W.D. Tenn. 1976), aff'd 582 F.2d 1280 (6th Cir. 1978).
These libel cases are inapposite. In each of these cases, the plaintiff had already suffered from a lowered reputation in the community because of the plaintiff s prior convictions for the crime alleged in the publication or for a similar crime. Under such circumstances, the truth of a defamatory publication is determined at the time of its publication. In other circumstances, facts alleged to exist by the defamer may subsequently occur, but his foresight in anticipating them will not protect him from liability. Restatement (Second) of Torts § 581A, comment g (1976).
Ruebke further claims that the trial court erred in holding that a conviction subsequent to the alleged defamatory publication provides the defense of truth to the publisher. He argues that just as the damages to one’s reputation must be determined at the time of the publication, so must the truth of the publication be determined. He further contends that the jury’s determination of his guilt in the criminal case is not binding on the jury in this action because he had appealed his criminal conviction; therefore, the determination of his guilt was not final when the district judge granted summary judgment in the civil case. We disagree.
The Constitution of the State of Kansas provides protection for a free press. The liberty of the press shall be inviolate; and all persons may freely speak, write, or publish their sentiments on all subjects, being responsible for the abuse of such rights; and in all civil or criminal actions for libel, the truth may be given in evidence to the jury; and if it shall appear that the alleged libelous matter was published for justifiable ends and is truthful, the accused party shall be acquitted. Kan. Const. Bill of Rights § 11. For there to be liability for defamation, there must be a publication of a matter that is both defamatory and false. In civil actions for libel where the defendant establishes the truth of the matter charged as defamatory, the defendant is justified in law, and exempt from all civil responsibility. Castle v. Houston, 19 Kan. 417, Syl. ¶ 2 (1877). Where the published statements are substantially true, there is no liability and a motion for summary judgment is proper.
In the criminal case, Arnold Ruebke was convicted of the triple murder by a jury of his peers. On appeal, this court determined that pretrial publicity had not prejudiced the community to the extent that he could not receive a fair trial. We reviewed each publication submitted by Ruebke’s attorney, including the story published in Startling Detective. We examined each of Ruebke’s claims that he was denied a fair trial and found them to be without merit. Under the law, Ruebke had been found guilty of the triple murder. All allegations that he had committed the crimes were found to be true.
However, rather than relying solely on the truth of the criminal convictions for our decision, we will also address the other grounds for the district judge’s decision.
To succeed in a libel action, an individual who is not a public official or a public figure need only prove that the defamation was negligently published. Gobin v. Globe Publishing Co., 216 Kan. 223, 231-32, 531 P.2d 76 (1975). To insure freedom of the press and speech, the development of American law has afforded public figures less protection than non-public figures. A limited privilege is granted to those with a special interest or a duty in the subject matter of communication. The press, which includes magazines and newspapers, is granted this limited privilege. The trial court determined that, even if some of the statements in the article were false, if Ruebke was a limited-purpose public figure, he had failed to prove malice and injury to reputation. We agree.
In a libel action, New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964), 95 A.L.R.2d 1412, the United States Supreme Court recognized that the constitutional protection of freedom of speech and press affords a qualified privilege of honest mistake. The Court held that First Amendment guarantees mandated that libel plaintiffs who were “public officials” could not recover absent a showing of actual malice through proof of convincing clarity. Prior to the New York Times case,Kansas in 1908 chose to follow a small minority of the states and recognized that published discussions of a candidate’s qualifications were conditionally privileged. The public benefit from publicity was so great, and the chance of injury to private character so small, that such discussion was privileged. To defeat a qualified privilege there had to be a showing of malice — actual evil-mindedness was necessary. Under the First Amendment’s guaranty of freedom of speech, the burden of proving malice was placed on the one claiming that his reputation .was injured, and no presumptions were allowed. Coleman v. MacLennan, 78 Kan. 711, 98 Pac. 281 (1908). Coleman was cited by the United States Supreme Court in New York Times. This standard was extended to “public figures” in Curtis Publishing Co. v. Butts, 388 U.S. 130, 18 L. Ed. 2d 1094, 87 S. Ct. 1975 (1967).
Who is a “public figure” and whether there is a qualified privilege based on the status of the individual are questions of law. The nature and extent of an individual’s participation in the particular controversy giving rise to the defamation determines if an individual is a “public figure.” Hanrahan v. Horn, 232 Kan. 531, 533, 657 P.2d 561 (1983).
There are two types of public figures:
(1) All-Purpose Public Figures — Those persons who occupy positions in society (not only in government) of “persuasive power and influence” or achieve pervasive fame and notoriety.
(2) Limited-Purpose Public Figures — Those who have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. Steere v. Cupp, 226 Kan. 566, 572, 602 P.2d 1267 (1979).
In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case, such persons assume special prominence in the resolution of public questions. Gertz v. Robert Welch, Inc., 418 U.S. 323, 351, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974).
Ruebke argues that since he did not voluntarily thrust himself into the forefront of a particular controversy, he was not a limited public figure. We disagree. Individuals who do not seek publicity or consent to it, but through their own conduct or otherwise become a subject of public interest, may become limited public figures. Those who commit crime, or are accused of it may wish to avoid publicity, but are nevertheless persons of public interest, concerning whom the public is entitled to be informed. Restatement (Second) of Torts § 652D, comment f (1976).
While Kansas courts have not considered the issue of the criminal defendant’s status as a limited public figure, we adopt the reasoning of the U.S. Supreme Court in Wolston v. Reader's Digest Assn., Inc., 443 U.S. 157, 61 L. Ed. 2d 450, 99 S. Ct. 2701 (1979). There, the court held that a person who engages in criminal conduct does not automatically become a “public figure.” The public figure status of a criminal defendant who is the subject of the alleged defamation in a libel case is to be deter mined no differently than in any other libel case; namely, by focusing on the “nature and extent of an individual’s participation in the controversy giving rise to the [alleged] defamation.” 443 U.S. at 167 (citing Gertz). Cases in which persons connected with crimes have been classified as public figures by their voluntary actions include Marcone v. Penthouse Intern. Magazine for Men, 754 F.2d 1072 (3d Cir. 1985); Logan v. District of Columbia, 447 F. Supp. 1328; and Rosanova v. Playboy Enterprises, Inc., 411 F. Supp. 440 (S.D. Ga. 1976), aff'd 580 F. 2d 859 (5th Cir. 1978).
Following the criteria set by Gertz, the proper inquiry to determine if an individual charged with a crime has obtained the status of a limited public figure is (1) whether the crime committed is a “public controversy” and (2) whether the nature and extent of defendant’s participation in the controversy was enough to cause him to become a “public figure.” Crimes where a public figure is the victim or which are of a particularly heinous nature are public controversies and automatically become matters of great concern to the public. Here, public concern for the victims and the method in which the crimes were committed was manifested by the establishment of reward funds by the citizens of Arlington, Hutchinson, and Reno County as well as a $5,000 additional state reward offered by Governor John Carlin.
With regard to the nature and extent of Ruebke’s participation in the controversy, several factors stand out:
(1) the intense media coverage of the murder investigation and its eventual focus on Ruebke;
(2) Ruebke’s voluntary act of turning himself in to the police in Kingman, Kansas, seeking protective custody; and
(3) Ruebke’s arrest and indictment for the triple murders.
Although no one factor standing alone could convey public figure status upon a criminal defendant, when all relevant factors are considered as a whole, they are sufficient to do so. See Marcone v. Penthouse Intern. Magazine for Men, 754 F.2d at 1086. An individual may not choose whether or not to be a public figure. Public figure status is rather the result of acts or events which by their nature are bound to invite comment. The triple murder was by nature an event of great concern to the public. The resulting investigation thrust Ruebke into the forefront of public attention. Thus, the district court was correct in holding that Ruebke was a limited public figure.
The district court was also correct in determining that Ruebke had failed to prove malice. We must first review that standard for determining the existence of malice at the summary judgment stage.
To provide added protection to the press from libel suits, the United States Supreme Court recently changed the direction of summary judgment under the federal rules. In a libel action brought by a “public figure,” that individual is required under the First Amendment to prove by clear and convincing evidence that the defendant acted with “actual malice, a knowing or reckless disregard of the truth.” That the clear and convincing standard of proof of malice applies at the summary judgment stage was decided in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The court stated:
“[T]he inquiry involved in a ruling on a motion for summary judgment or for a directed verdict necessarily implicates the substantive evidentiary standard of proof that would apply at the trial on the merits. . . . [Wjhere the First Amendment mandates a ‘clear and convincing’ standard, the trial judge in disposing of a directed verdict motion should consider whether a reasonable factfinder could conclude, for example, that the plaintiff had shown actual malice with convincing clarity.” 477 U.S. at 252.
Under the Kansas Rules of Civil Procedure, summary judgment is proper if no genuine issue of fact remains, giving the benefit of all inferences which may be drawn from the admitted facts to the party against whom judgment is sought. Barnhart v. McKinney, 235 Kan. 511, 682 P.2d 112 (1984).
An appellate court is required to read the record in the light most favorable to the party against whom summary judgment was entered. The appellate court takes the party’s allegations as true, and it gives him the benefit of the doubt when his assertions conflict with those of the movant. Factual inferences tending to show triable issues are to be considered in the light most favorable to the existence of those issues. If there is a reasonable doubt as to the existence of fact, a motion for summary judgment will be denied. Moreover, pleadings and documentary evidence must be given a liberal construction in favor of the party against whom the motion is directed.
Ruebke initially contends that the district judge abused his discretion by holding that, since Ruebke failed to comply with Supreme Court Rule 141(b) (235 Kan. cx), Ruebke’s response must be stricken and Globe’s statement of uncontroverted facts deemed admitted. He argues that the district judge compounded his error by then determining as a matter of law Globe’s motion for summary judgment should be granted. Ruebke claims that summary judgment was improper because he had substantially complied with the rule and because there were genuine issues of material fact.
Supreme Court Rule 141 provides:
“No motion for summary judgment shall be heard or deemed finally submitted for decision until:
“(a) The moving party has filed with the court and served on opposing counsel a memorandum or brief setting forth concisely in separately numbered paragraphs the uncontroverted contentions of fact relied upon by said movant (with precise references to pages, lines and/or paragraphs of transcripts, depositions, interrogatories, admissions, affidavits, exhibits, or other supporting documents contained in the court file and otherwise included in the record); and
“(b) Any party opposing said motion has filed and served on the moving party within twenty-one (21) days thereafter, unless the time is extended by court order, a memorandum or brief setting forth in separately numbered paragraphs (corresponding to the numbered paragraphs of movant’s memorandum or brief) a statement whether each factual contention of movant is controverted, and if controverted, a concise summary of conflicting testimony or evidence, and any additional genuine issues of material fact which preclude summary judgment (with precise references as required in paragraph [a], supra).
“The motion may be deemed submitted by order of the court upon expiration of twenty-one (21) days, or expiration of the court ordered extended period, after filing and service on opposing counsel of the brief or memorandum of moving party notwithstanding the failure of the opposing party to comply with paragraph (b), supra. In such cases the opposing party shall be deemed to have admitted the uncontroverted contentions of fact set forth in the memorandum or brief of moving party. In determining a motion for summary judgment the judge shall state the controlling facts and the legal principles controlling the decision in accordance with Rule No. 165.”
While conceding noncompliance with Supreme Court Rule 141(b), Ruebke argues that the district court’s application of the rule was unduly harsh and an abuse of discretion. Globe contends that literal compliance with Rule 141 is mandatory, citing McCullough v. Bethany Med. Center, 235 Kan. 732, 683 P.2d 1258 (1984).
In McCullough, the movant for summary judgment did not comply with Rule 141(a) and did not set out the uncontroverted facts concisely in separately numbered paragraphs. The district court ruled that defendant’s memorandum had substantially complied with Rule 141. We reversed, finding under the circumstances the district court’s grant of summary judgment had left no way for an appellate court to determine then or now what facts were or were not controverted or on what evidence the parties relied. This case, however, does not deal with subsection (a) of Rule 141, but rather with subsection (b). We are not considering the movant’s failure to comply with Rule 141(a), but rather with the opposing party’s failure to set forth in separately numbered paragraphs the manner in which the movant’s facts are controverted in the response.
Ruebke’s attorney, rather than making “precise reference to pages, lines and/or paragraphs of the transcripts” in his response, merely referred to the entire trial transcript of the criminal case when listing some of the 19 additional controverted facts. In this case, Ruebke’s failure to comply with subsection (b) of Supreme Court Rule 141 thus also makes it almost impossible for the district court or an appellate court to determine where the additional factual contentions are located in the criminal trial record.
Rule 141 further directs that where the party opposing summary judgment fails to comply with (b), the district court may deem the motion for summary judgment submitted and the opposing party as having admitted the uncontroverted facts set forth in the movant’s statement. Thus, the rule vests discretion in the trial court whose sound discretion will not be disturbed on appeal without a clear showing of abuse. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court. One who asserts the court has abused its discretion bears the burden of showing such abuse of discretion. Hagedorn v. Stormont-Vail Regional Med. Center, 238 Kan. 691, Syl. ¶¶ 1, 2, 715 P.2d 2 (1986).
Ruebke has made no showing which supports a finding that the trial court’s decision to disregard Ruebke’s statement of additional facts was an abuse of discretion. Ruebke’s additional list of controverted facts does not raise any genuine issue of material fact. Many of the additional facts are merely complaints by Ruebke about the quality and the sensational nature of the other articles and the advertisements contained in the Startling Detective magazine. For example, Ruebke resents that the publication advertises good luck charms, ESP, health and healing powers, the power of witchcraft, gun sales, lucky stones, a sex encyclopedia, Satan power, a lonely hearts exchange section, sex toys, a “Miraculous Fatima Medal” promising cures and thousands of dollars for only $5.00, and sexual pleasures.
In other statements of his additional facts, Ruebke complains that the author of the allegedly libelous article, by paraphrasing, has sensationalized some of the statements made by witnesses during the investigation and the preliminary examination. Ruebke also points out that some of the statements in the article about the triple murder are not factually correct because the author incorrectly stated some of the dates and times of certain occurrences.
Ruebke’s claims do not raise any genuine issues of material fact. In order to preclude summary judgment, the facts subject to dispute must be material to the conclusive issues in the case. An issue of fact is not genuine unless it has legal controlling force as to a controlling issue. A feigned or imaginary issue is not a genuine issue. A disputed question of fact which is immaterial to the issues does not preclude summary judgment. If the disputed fact, however resolved, could not affect the judgment, it does not present a genuine issue of a material fact. Busch v. City of Augusta, 9 Kan. App. 2d 119, Syl. ¶¶ 4, 5, 674 P.2d 1054 (1983).
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. Gleichenhaus v. Carlyle, 226 Kan. 167, 597 P.2d 611 (1979); Bowen v. Westerhaus, 224 Kan. 42, 578 P.2d 1102 (1978). The existence of malice is ordinarily a question of fact for the jury, but where the facts are not in dispute, it is a question of law for the court. Redmond v. Sun Publishing Co., 239 Kan. 30, 36, 716 P.2d 168 (1986); Gleichenhaus v. Carlyle, 226 Kan. at 169. Summary judgment should be employed with caution in a defamation case. However, summary judgment may be granted when the evidence shows no liability as a matter of law and where the essential facts are not in dispute. Hein v. Lacy, 228 Kan. 249, 256, 616 P.2d 277 (1980).
Though the article contained statements with minor inaccuracies, the record on appeal does not show that Globe acted with malice or that any genuine issue of material fact existed. Thus, the district court was correct in granting summary judgment to defendant.
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The opinion of the court was delivered by
Schroeder, J.:
These actions were instituted in the district court of Cowley County, Kansas, to recover damages for injury to plaintiffs’ real estate suffered as a result of a sewage treatment plant located in the vicinity of then property and operated by the City of Arkansas City, Kansas.
The cases have been consolidated pursuant to a stipulation that the decision in Case No. 42,205, which has been abstracted and briefed, will control the decision in the other cases.
The trial court sustained a demurrer to the amended petition, with amendments thereto, on the ground that it did not state facts sufficient to constitute a cause of action against the City, and appeal has been duly perfected.
The issue presented on appeal is whether the amended petition, with exhibits attached and incorporated therein, shows on its face that the injury was suffered more than three months prior to the filing of the appellants’ claim with the City, and hence barred by G. S. 1959 Supp., 12-105.
On the 13th day of March, 1959, the plaintiffs (appellants) filed a “Notice of Claim for Proximate Damages to Real Property” with the City of Arkansas City, Kansas. The claim specifically described the appellants’ real property where they lived and made their home. The claim alleged that the City failed:
“. . . to exercise reasonable and prudent judgment in selecting the present situs for the new sewage treatment plant and ordinary, prudent and reasonable city commissioners would have and should have anticipated odors, gases, fumes and stench would fall upon claimants’ real property due to the choice of a site within so close proximity to complainants’ dwelling, and, such negligent omission of judgment, and the results thereof, set in motion a chain of events and actions which constitute a nuisance by the city of Arkansas City against the complainants’ real property, and resulting in great damage to said real property.”
It alleged that the location of the sewage treatment plant was nearer than one thousand feet from some dwellings in Sleeth Addition; that requests for relief or abatement of the nuisance have gone for naught, and that the City has given no positive relief to the complainants.
The claim then alleged:
“5. That the city of Arkansas City, Kansas, during the five months last past has owned and negligently operated, and still owns and negligently operates a new and defective sewage treatment plant and said city has continuously during the past five months wrongfully and negligently discharged and still does discharge from said sewage treatment plant large volumes of noxious and offensive odors, gases, fumes and stench upon, around, in, and over the real property of complainants and creating thereby a continuing nuisance against the claimants’ real property by said acts, and to the great injury of claimants’ property.
“6. That Specifically, said odors, gases, fumes and stench were of very high intensity on December 25th, 26th, 27th, and 28th and continued to remain so for several days from said dates and said stench during this particular period did great damage to the real property of said claimants. As a result of the very offensive stench during this particular period, a large and irritant group of citizens from the affected area met on December 29, 1958, at the City Hall with City Officials and protested long and vehemently against said odors and stench being around, on, in, and above their real property and they requested complete and immediate relief therefrom or legal action would be forthcoming for damages to their property.
“7. That said nuisance is continuous and constantly recurring and has inflicted an irreparable injury on the real value and market value of real estate in Sleeth and Mill Additions, and, the building of said sewage treatment plant in or adjacent to Sleeth Addition has given this area the bad reputation of being an undesirable place or area in which to reside because of the sewage treatment plant and the stench therefrom, and, the value and sale of realty in Sleeth and Mill Additions have depreciated greatly, and, claimants’ real property has been particularly damaged and has been substantially and permanently depreciated in value.
“8. That the complainants have suffered and still suffer special and peculiar injury resulting from said wrongful acts by the city of Arkansas City in its operation of said sewage treatment plant in that the air surrounding the complainants’ dwelling has been and is polluted, unhealthful and unfit to live in, and destroying the dwelling’s use as a residence for the complainants and conrplainants’ family, and greatly depreciating its value, salability, rentability, and the opportunities to sell have been greatly reduced and are almost nil, to the complainants’ damage of Four thousand one hundred sixty six dollars ($4166.00), and said amount of damage is a direct result of the nuisance created and operated by the city of Arkansas City.
“9. That said actions, supra, by the city of Arkansas City, constitute a private nuisance against the complainants and complainants’ property, and constitute a public nuisance against all property owners and their properties, who reside in Sleeth and Mill Additions to Arkansas City.” (Emphasis added.)
The concluding paragraph of the appellants’ claim demanded payment from the City “for real property damages already suffered” in the sum of $4,166.
More than thirty days after the notice of claim was filed with the City, no settlement having been made concerning the matter, suit was filed by the appellants seeking damages.
The amended petition, after the usual preliminary allegations concerning the parties and specifically describing the involved real property, alleged:
“3. That the Defendant has constructed and now operates a sewage disposal plant, located in Sleeth Addition to the City of Arkansas City, Kansas, 1186 feet east southeast of the real estate of these Plaintiffs, which sewage disposal plant was placed in operation by the Defendant in the month of November, 1958.
“4. That on or about the 25th day of December, 1958, and at all times since said date, the Defendant, by its operation of said sewage disposal plant, has wrongfully allowed the discharge of foul, noxious, disagreeable and sickening odors, gases, fumes and stench to pass from said sewage disposal plant over and onto the real estate of the Plaintiffs herein, which has permeated through the house of the Plaintiffs, thereby creating a continuing and permanent nuisance against the real property of the Plaintiffs.
“5. That these Plaintiffs have a right to the uninterrupted, quiet, peaceful enjoyment of their home, and to have the same free from the contamination emitted into the air by this Defendant, its officers and employees.
“6. That since the construction and operation of said sewage disposal plant and the resulting discharge and emission of foul, noxious, disagreeable and sickening odors, gases, fumes and stench over, onto and into the premises and real estate of the Plaintiffs herein, and as a direct and proximate result, and caused solely by the nuisance above complained of, the real estate of the Plaintiffs has become an undesirable location in which to live, reside and raise a family; that this nuisance has rendered the premises unfit for normal living purposes, and the premises have thereby been permanently reduced and depreciated in value, all to the damage of the rights of the Plaintiffs herein to have the value of their real estate unaffected by the acts of nuisance by third parties, and particularly this Defendant.
“7. That on the thirteenth (13th) day of March, and within three months from the first event complained of herein, these Plaintiffs served upon the Clerk of the Defendant city a claim in writing, duly verified, in accordance with the Statutes of the State of Kansas made and provided, setting out their claim; that the Defendant has neglected and refused to allow or reject said claim, and still refuses to do so, and that more than thirty (30) days have passed since the filing of said claim.
“8. That as a result of the things complained of above, these Plaintiffs have suffered damage in that the fair market value of their real estate has been permanently reduced and depreciated in the sum of $4,166.00; that immediately prior to November, 1958, the real estate of these Plaintiffs was worth the sum of $6,250.00; that it continued to be worth the sum of $6,250.00 until about the 15th of December, 1958, at which time it started to reduce and depreciate in value as complained of above; that on the 18th day of March, 1959, the date of filing the claim for damage with the Defendant, the damage complained of above was measured, computed and calculated to be $4,166.00." (Emphasis added.)
By reason of the foregoing allegations the plaintiffs sought judgment in the amount of $4,166 “for permanent damages to their real estate” and for costs and other relief.
By amendment to the amended petition the “Claim” and “Acknowledgment” were attached to the petition and made a part thereof.
The trial court in sustaining a demurrer to the amended petition filed a memorandum opinion in which it observed that the original petition had been based, as was the claim, upon allegations of negligence in the operation of the sewage disposal plant, and that following a motion to make definite and certain the plaintiffs abandoned such claim, but proceeded and were “now proceeding upon a pleading alleging a permanent nuisance.” The trial court said;
“The petitions do not now seek to enjoin or to abate a nuisance; neither do they seek or claim that temporary damages have been sustained by the plaintiffs. The sole and only basis laid in the present pleadings for any relief is that which may be given by way of permanent damages to the real estate.”
Thereupon the trial court construed the claim as alleging that the injury complained of first occurred five months prior to the filing of notice of claim with the City, and held that the plaintiffs failed to make a timely compliance with the statute in question and could, therefore, not maintain the action, since the filing of a statement within three months was applicable to actions for permanent damages to real estate.
In the construction of a petition for the purpose of determining its effect, allegations are to be liberally construed with a view to substantial justice between the parties. (G. S. 1949, 60-736.) The general rule is that as against a demurrer the petition of the plaintiff is entitled not only to the benefit of the facts pleaded, which must be taken as true, but to all reasonable inferences that may be derived therefrom, (Cassity v. Brady, 182 Kan. 381, 321 P. 2d 171, and authorities cited therein.) In construing the sufficiency of anv pleading all of the allegations thereof are to be considered together, and it is not proper to segregate allegations and determine their sufficiency without regard to the context of the whole pleading. (Fyne v. Emmett, 171 Kan. 383, 233 P. 2d 496; Emrie v. Tice, 174 Kan. 739, 258 P. 2d 332; and Kitchen v. Smith, 184 Kan. 188, 334 P. 2d 413.) The effect of a pleading is not necessarily determined by the technical definition of a single word. Words used in a pleading must be construed with reference to the context. A construction which will give effect to all the material allegations of a pleading is to be preferred where reasonably possible. Therefore, where a general demurrer challenges the sufficiency of the entire petition to state a cause of action, it is not the function of the appellate court to single out or isolate allegations which support a ruling of a trial court sustaining the demurrer, but to construe the pleading as a whole to see whether sufficient facts have been alleged to state a cause of action on any theory. (Fernco, Inc., v. Kennedy, 181 Kan. 25, 309 P. 2d 400; Richey v. Darling, 183 Kan. 642, 331 P. 2d 281; Kansas Bankers Surety Co. v. Ford County State Bank, 184 Kan. 529, 338 P. 2d 309, 75 A. L. R. 2d 600; Dugger v. State Highway Commission, 185 Kan. 317, 342 P. 2d 186; Otto v. Swartz, 186 Kan. 689, 352 P. 2d 12; and Wycoff v. Winona Feed & Grain Co., 187 Kan. 98, 353 P. 2d 979.)
Under recent decisions and upon the record presented herein, the amended petition is entitled to a liberal construction. (Hickert v. Wright, 182 Kan. 100, 319 P. 2d 152; Gibbs v. Mikesell, 183 Kan. 123, 325 P. 2d 359; and Wycoff v. Winona Feed & Grain Co., supra.)
The section of the statute applicable to a decision herein is G. S. 1959 Supp., 12-105. It provides in part as follows:
“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 three (3) 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 and the circumstances relating thereto: . . .”
In actions of this nature the appellants are bound by the statutory claim which they are required to file with the city cleric pursuant to 12-105, supra, as a condition precedent to the maintenance of any action against a municipality, and their rights of recovery are based upon such claim. (Watkins v. City of El Dorado, 183 Kan. 363, 327 P. 2d 877; and Hibbs v. City of Wichita, 176 Kan. 529, 271 P. 2d 791.) Moreover, to maintain such an action it is incumbent to affirmatively allege in the petition compliance with such condition to state a cause of action. (McGinnis v. City of Wichita, 180 Kan. 608, 306 P. 2d 127.) Here the appellants incorporated the claim in their amended petition by reference, and since it is controlling, the amended petition cannot vary the statements made in their claim. (Watkins v. City of El Dorado, supra.)
Therefore, in analyzing the amended petition we must determine whether the appellants’ claim complies substantially with th¿ statute, 12-105, supra. Although the cases hold it is mandatory to comply with the statute requiring that a statement be filed with the clerk of the city as a condition precedent to the maintenance of an action, if the statement filed reasonably complies with the statute and the City is not misled to its prejudice regarding the essential requirements, it has been held sufficient and the City has no reason to complain. (Jeakins v. City of El Dorado, 143 Kan. 206, 53 P. 2d 798; and Watkins v. City of El Dorado, supra.)
We think it clear the claim conforms with all statutory requirements regarding the place of injury without further dwelling upon this point.
The appellee contends the theory of the action proceeds clearly and solely upon the pleading of a permanent nuisance resulting in permanent damages to real estate. The appellee relies upon the rule that an action for the recovery of permanent damages to land accrues when the injury first occurs. (Jeakins v. City of El Dorado, supra; McDaniel v. City of Cherryvale, 91 Kan. 40, 136 Pac. 899; and Lackey v. Prairie Oil & Gas Co., 132 Kan. 754, 297 Pac. 679; see, also, Peterson v. Texas Co., 163 Kan. 671, 186 P. 2d 259, and cases cited therein.) It is then argued the amended petition in the instant case alleges the City started operation of the sewage disposal plant in November, 1958, and the claim alleges continuous operation of the plant “during the past five months;” therefore, the appellants have failed to comply with the express mandate of the statute, 12-105, supra, to file their claim within three months of the happening of the injury. In substance, this is to say the three-month condition in the statute is equivalent to a statute of limitations where permanent damages to real estate are sought.
It must be conceded the general rule applied in Kansas is that an action for recovery of permanent damages to land accrues when the injury first occurs. It is significant to note, however, in cases on this point the time when an injury first occurs becomes material only with reference to the running of the two-year statute of limitations pursuant to G. S. 1949, 60-306, Third. In addition to the cases heretofore cited others are illustrative. (Taylor v. Newman, 91 Kan. 864, 139 Pac. 369; Beard v. Kansas City, 96 Kan. 102, 150 Pac. 540; Campbell v. City of Wichita, 101 Kan. 817, 168 Pac. 833; McMullen v. Jennings, 141 Kan. 420, 41 P. 2d 753; Fulmer v. Skelly Oil Co., 143 Kan. 55, 53 P. 2d 825; Seglem v. Skelly Oil Co., 145 Kan. 216, 65 P. 2d 553; Waidlick v. City of Manhattan, 150 Kan. 34, 90 P. 2d 1104; and Eyman v. National Union Oil & Gas Co., 153 Kan. 45, 109 P. 2d 477. But see, Gardenhire v. Sinclair-Prairie Oil Co., 141 Kan. 865, 44 P. 2d 280.)
It is apparent from the wording of 12-105, supra, the legislature did not have injury caused by a nuisance specifically in mind. Our decisions, however, have construed the statute as applicable to injury caused by a nuisance. This is exemplified by cases concerning the time of an alleged injury. Where claim is made against a city for certain types of injury, strictness in alleging the time has always been essential. Thus, in McHenry v. Kansas City, 101 Kan. 180, 165 Pac. 664, the claim recited injuries were sustained by a fall on a public sidewalk “on or about January 12, 1916,” and the petition alleged the time to be January 19, 1916. The variance was held to be fatal. In Mowery v. Kansas City, 115 Kan. 61, 222 Pac. 126, the claim showed the date of injury to be January 18th, whereas the petition alleged and the evidence tended to show the injuries complained of were received on January 3rd. The court held a demurrer to the evidence was properly sustained. In Ray v. City of Wichita, 138 Kan. 686, 27 P. 2d 288, a claim filed one day late was held to be fatal. However, where the injury sustained was caused by a continuing nuisance, a claim which alleged that it covered the three months immediately previous to the date of filing the claim was held sufficient in Watkins v. City of El Dorado, supra. (See, also, Jeakins v. City of El Dorado, supra; and Steifer v. City of Kansas City, 175 Kan. 794, 267 P. 2d 474.)
The appellee attempts to make a methodical classification of our nuisance cases on the basis of whether the damages sought for the injury are temporary or permanent in character. Before embarking upon further discussion, it would be well to quote a passage from an extensive annotation entitled “Nuisance — Sewage Disposal Plant” in 40 A. L. R. 2d 1179. This passage is not quoted for adoption as a statement of Kansas law, nor does it necessarily represent Kansas law, but will serve to enlighten further discussion of our Kansas cases. It is set forth under the subhead “Damages to land as affected by permanence of nuisance” (40 A. L. R. 2d 1200 [§ 11]), and reads:
“The importance of determining whether a nuisance created by the operation of a sewage disposal plant is a temporary or permanent one is illlustrated by the different measure of damages in either instance. A temporary nuisance is one which is abatable, while a permanent nuisance is one which, despite laok of negligence in the construction or operation of the plant, may be expected to continue. To be permanent, it would seem necessary that it appear that there exists a legal right to maintain the sewage disposal plant although its operation must necessarily result in a nuisance. The damages in such case would appear measurable for all time, and would have reference, when applied to realty, to the actual damage caused to the value of the property; in other words, where the injury to real property caused by the nuisance is of a permanent character, the damages are measured by the depreciation in the market value of the property injured, taking into consideration, however, that recovery is not limited solely to the damages to the property, but that special damages arising from annoyance, discomfort, or inconvenience to the person may also be recovered. Where, on the other hand, the nuisance is temporary and can be abated, only temporary damages to so-called rental value’ can be recovered, leaving the door open for further suits if further damage occurs.”
Sewage disposal in a city has been recognized as a serious problem in Kansas. In State v. Concordia, 78 Kan. 250, 96 Pac. 487, the court speaking through Justice Burch said:
“ . . It may be practically impossible to devise a system adequate to the needs of the city or within its ability to carry out which will not occasion inconvenience and discomfort to somebody. The mayor and council must meet the situation as best they can. When their candid judgment has been deliberately exercised and the work has been properly planned and skilfully executed the rights of individuals must ordinarily be subordinated, so far as all incidental disadvantages and loss is concerned. The city is, however, liable for negligence in the plan, construction and maintenance of sewers, as of other public works, and the right to build sewers and drains implies no right to create a nuisance, public or private. . (pp. 252, 253.) (Emphasis added.)
The foregoing case and authorities cited therein recognize that even though a municipality has power to construct and maintain a sewage disposal system, and although the work is one of great public benefit and necessity, nevertheless such public body is not justified in exercising its power in such a manner as to create a private nuisance by a disposal of its sewage without making compensation for the injury inflicted, or being responsible in damages therefor, or liable to equitable restraint in a proper case, nor can such public body exercise its powers in such a manner as to create a public nuisance, for the grant presumes a lawful exercise of the power conferred and the authority to create a nuisance will not be inferred.
While it is the general rule in this state that a city is not liable for negligent acts of its officers or employees when acting in the performance of governmental functions, absent a statute expressly imposing liability, an exception is recognized where the city’s conduct results in creating or maintaining a nuisance. (Jeakins v. City of El Dorado, supra; and Steifer v. City of Kansas City, supra.)
The gravamen of the offense in actions of this nature is not necessarily negligence but nuisance, and is dealt with by the law of nuisance, whether the nuisance is negligently caused or otherwise. It cannot be said that a sewage disposal plant is a nuisance at all times and under any circumstances, regardless of location or surroundings. Thus, it is not a nuisance per se under the generally accepted definition of such term. A sewage disposal plant may be so constructed, maintained or operated that, through the emission of noxious or disagreeable odors, or through the discharge of improperly digested sewage upon land or into a watercourse, it becomes anuisance in fact or per accidens. (See, 40 A. L. R. 2d 1206 [§ 13].)
The appellee relies upon McDaniel v. City of Cherryvale, supra, where an action for permanent damages to land (depreciation in market value) was brought by the plaintiff. There the city con structed a sewer which together with a refinery discharged sewage and refuse into a creek flowing through the plaintiff’s land. The court held the action was barred by the two-year statute of limitations because more than two years had expired from the time the pollution was discharged and turned into the stream. In the opinion it was said the plaintiff could have elected to sue for temporary damages sustained within the statutory period preceding the bringing of the action, and for any subsequent injury or loss an additional action might have been brought. He chose, however, to treat the injury as permanent in character and brought a single action to recover for all present and prospective damages to his land. In the opinion it was said:
. . As the sewer system constructed by the city and the refinery constructed by the oil company were permanent in their nature and as the flow of the sewage and refuse from them was designed to continue indefinitely in the future a cause of action for permanent damages arose when the sewage and other impurities were first emptied into the stream . . (p. 43.)
It is important to note in the above case the stream into which the pollution was discharged ran through the plaintiff’s land. This is in the nature of a trespass, and the court, speaking of the permanent structures, recognized that their operation would necessarily be injurious to the plantiff’s land and would continue permanently to affect and depreciate the value of his land. The plaintiff having elected to treat this invasion of his property rights as a permanent injury was said by the court to be, in effect, treating it as an appropriation of an interest in his land. Similarly, in Campbell v. City of Wichita, 101 Kan. 817, 168 Pac. 833, the City of Wichita closed a street by ordinance, and it was held the notice of closing the street constituted an appropriation of ingress and egress which gave rise to a cause of action for permanent appropriation. Under these circumstances an action for permanent damages accrues when the appropriation has its inception.
The question as to when a cause of action accrues and whether the nuisance complained of is permanent or recurring has resulted in a diversity of conclusions. This was recognized in McMullen v. Jennings, 141 Kan. 420, 41 P. 2d 753, where many of the cases were distinguished in the following language:
“It is generally held the first right of action for injuries caused by a nuisance or a continuing tort arises when the first injury in inflicted. Although in many particulars the same principles apply to trespass and nuisance, there is this difference: in trespass the mere breaking and entering gives rise to a cause of action; in nuisance, the plaintiff is not disturbed in the enjoyment of his property until the act of the defendants has resulted in some injury. If the action be in trespass there is but one cause of action; if in nuisance it becomes important to determine whether the facts warrant but one action or a succession of actions as the various injuries may be inflicted . . .” (¶. 42.) (Emphasis added.)
There are cases in which the original act is considered as a continuing act, daily giving rise to a new cause of action. Where one creates a nuisance and permits it to remain, it is treated as a continuing wrong, giving rise, over and over again, to causes of action so long as it remains. Rut 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. The foregoing was recognized in Henderson v. Talbott, 175 Kan. 615, 266 P. 2d 273, by quoting from K. P. Rly. Co. v. Mihlman, 17 Kan. 224. The rule was summarily stated in Watkins v. City of El Dorado, supra, and applied in Steifer v. City of Kansas City, supra.
Turning now to the claim filed with the City in the instant case and applying the rules of construction heretofore stated, we think the facts set forth allege a nuisance which is continuous and constantly recurring — a nuisance which the City would be under legal obligation to abate. The italicized portions of the claim, heretofore quoted, in addition to other facts alleged, tend to substantiate this construction.
Fairly construed, both the claim and the amended petition filed pursuant thereto seek “permanent damages” to the appellants’ real property. In paragraph 7 of the claim it is said “claimants’ real property has been particularly damaged and has been substantially and permanently depreciated in value.” The petition in several places indicates that it is the depreciation in value of the appellants’ real property which they seek as damages. In the italicized portion of paragraph 8 of the amended petition, heretofore quoted, the real estate in question was alleged to have retained its value of $6,250 until about the 15th day of December, 1958, at which time it started to reduce and depreciate in value until the 13th day of March, 1959, when the claim was filed, in the sum of $4,166 for which suit was brought.
The question remains whether the appellants are entitled to recover for the depreciation in value of their land, commonly regarded as the measure of recovery for permanent damages.
It is fundamental under our form of government that an indi vidual has the right and freedom to own private property. This right to own property includes all incidents of ownership, among which is the legal right to sell the property at its fair market value unimpaired by the wrongdoings of a third party. In the exercise of this legal right he is also free to select the time at which he wishes to sell such property. Therefore, an act of a wrongdoer which causes injury to one’s private property can be measured in damages by the extent to which the fair market value of the property is impaired.
It is commonly recognized in our economy that the fair market value at a given time is the price in dollars which a willing seller would take for his property, and a willing buyer would pay for the property. The practical application of this simple rule to the facts presented by the pleading under attack is that a would-be purchaser of the property, in appraising the value of the property in his own mind, at a given time when the continuing nuisance is both apparent and real, would seriously consider the permanency of the nuisance in relative terms. That is, he would recognize the nuisance could be abated, but at the same time realize the sewage disposal plant was in the nature of a permanent structure, and that it was being operated by a municipality. In all probability, therefore, the prospective purchaser would materially discount the possibility of abating the nuisance to arrive at a price he would be willing to pay. The owner of the property at the same time would give the matter the same consideration to arrive at the price he would be willing to take. It is commonly known would-be purchasers are not prone to buy a lawsuit. For these reasons it must be recognized that whether the nuisance alleged in the case at bar is temporary or permanent is purely speculative, a matter which only future events can determine. But so far as the owner’s present damage is concerned, viewing it as a practical matter, it is immaterial whether the nuisance is temporary or permanent. He has a legal right to the full enjoyment of his property now, unimpaired by the acts of a third party wrongdoer.
It is significant to note the provisions of 12-105, supra, neither classify damages nor require that the injuries be temporary or permanent. The statute merely requires notice to the city of an injury to person or property for which damages are claimed. It requires that the notice be given within three months after the injury concerning which complaint is made.
The foregoing construction and the practical approach was recognized and held to be controlling in Steifer v. City of Kansas City, supra. There an action was brought against the City of Kansas City for the creation and maintenance of a nuisance in the operation of a public dump. The plaintiffs alleged the value of their premises was impaired and their property taken for public use without compensation. It was alleged the city began operating the dump some time after April 26,1949, and by reason of the negligent and careless operation of the dump, which was about seven hundred feet from the plaintiffs’ dwelling house, the premises became unhealthy and unfit for occupation from and after May 15, 1950 (approximately thirteen months after the operation began). The petition then alleged many facts to substantiate the existence of a nuisance, and the court said:
“. . . About May 15, 1950, the obstruction first caused surface water to accumulate and inundate a portion of the land of plaintiffs, and will continue to be inundated by reason of the obstruction of the surface water drainage. On August 12, 1950, and within three months after the injuries complained of, plaintiffs filed with the city clerk of Kansas City a notice of claim for damages, setting forth the time, place and circumstances relating to the injuries complained of, as herein related, and a copy of such notice was attached and made a part of the petition; that by reason of the creation and maintenance of the nuisance, in taking plaintiffs’ land and the inundation of portions thereof, plaintiffs have suffered damages in the sum of $10,000, and they pray judgment that the nuisance be removed and abated, and for recovery of tire damages alleged.” (p.796.) (Emphasis added.)
At the trial of the case evidence relating to the diminution in the market value of the real property from its highest and best use was rejected by the trial court on objection. On this point the jury was instructed to allow no more than nominal damages concerning the impairment of the market value of the real estate. On appeal this court said the city’s dump materially affected the market value of the plaintiffs’ real property, and this was true whether the court ordered the nuisance abated or not. In holding that the tidal court erred to the prejudice of the plaintiffs in rejecting such evidence, it was said:
“. . . Since plaintiffs were not permitted to show the actual existing market value and their loss by reason of the defendant’s nuisance, they were denied the right to recover the damage to their real estate sustained by reason of tlie nuisance . . .” (p. 800.)
Contrary to the appellee’s contention the issue was directly presented in the Steifer case, and the court held a landowner could recover as damages the diminution in market value of his land caused by a continuing nuisance which had its inception more than three months prior to filing of a claim with the City, pursuant to 12-105, supra, where the injury concerning which complaint was made occurred within three months prior to the filing of such claim. Moreover, the plaintiffs were there also seeking abatement of the nuisance and the judgment of the trial court so ordered. The Steifer decision presents the controlling law of this case.
Similarly in Watkins v. City of El Dorado, supra, the sufficiency of a petition was challenged which sought damages for depreciation in the value of real property by reason of a continuing nuisance caused by the negligent operation of a sewage disposal plant. The petition alleged operation of the plant for more than a year prior to the 9th day of September, 1955, and that for more than three months immediately preceding such date acts of a more serious nature were alleged causing the injury of which complaint was made. The claim was dated September 7, 1955, and covered the three months immediately preceding such date. The court held the amended petition, which included the claim, alleged a continuing nuisance and “affirmatively pleads substantial compliance with the essential requirements of the provisions of G. S. 1949, 12-105, establishing conditions precedent to the maintenance of an action.”
While the issue presently confronting the court was not directly challenged to the attention of the court by counsel in the Watkins case, it must be assumed the law of the Steifer case, decided four years prior thereto, was recognized. The appellants’ brief in the Watkins case (on file in the State Library) reveals they did not urge the two-year statute of limitations, as a ground for sustaining the demurrer, because such fact did not appear on the face of the petition.
It is clear from the decision that where a plaintiff sustains injury for which he claims damages, regardless of their nature, against a city, recovery is limited to such damages as are sustained within the period of three months under 12-105, supra, immediately preceding the filing of the written statement of claim with the city. (Jeakins v. City of El Dorado, supra; Cole v. Kansas City, 141 Kan. 633, 42 P. 2d 940; Steifer v. City of Kansas City, supra; and Watkins v. City of El Dorado, supra.) However, it was held in Avery v. City of Lyons, 183 Kan, 611, 331 P. 2d 906, the statute makes no limitation as to otherwise proper elements of damage for the specific injury occasioned, where the notice claimed such damages as known consequences of an injury already sustained.
Turning now to the appellants’ claim and giving it the benefit of a liberal construction pursuant to the rules heretofore stated, it alleges the continuing nature of the nuisance during the five months immediately preceding the filing of their claim, but alleges in paragraph 6 thereof “specifically” the injury of which complaint is made, setting forth the dates of December 25th, 26th, 27th and 28th and continuing thereafter, all of which are within three months prior to the date the claim was filed. It is apparent the appellants have so regarded their claim by the allegations in paragraph 8 of their amended petition.
We therefore hold the appellants’ written statement of claim filed with the appellee city on the 13th day of March, 1959, was sufficient to comply with the provisions of G. S. 1959 Supp., 12-105, and the amended petition states a cause of action.
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|
The opinion of the court was delivered by
Miller, J.:
The City of Salina, Kansas, brought this condemnation proceeding to acquire several tracts of land. A dispute arose between the First National Bank & Trust Company of Salina (First National Bank) and First Agency of Leoti, Inc., (First Agency) over priority to proceeds from the condemnation of real estate belonging to a debtor of both parties. The trial court held that First Agency had priority to the proceeds. The Court of Appeals reversed, holding that the trial court erred in finding that First Agency had priority over First National Bank. City of Salina v. Star B, Inc., 11 Kan. App. 2d 639, 731 P.2d 1290 (1987). We granted review.
The controlling issue is whether a journal entry, signed and filed by the district judge on November 30, 1984, constituted an entry of final judgment, which then related back to July 30, 1984, under the provisions of K.S.A. 1986 Supp. 60-2202(a). The efficacy of the November 30 journal entry depends upon, as the Court of Appeals noted, “whether entry of a partial summary judgment ‘pursuant to K.S.A. 60-254(b)’ satisfied the requirements for certification in K.S.A. 60-254(b).” 11 Kan. App. 2d at 640.
The facts are fully set forth in the Court of Appeals’ opinion and will only be stated briefly here. On August 3, 1984, by virtue of a document signed by the landowners, First National Bank received an assignment of the landowners’ equitable interest in and to the Great Plains Building as security for certain loans. That assignment gives the First National Bank priority, unless a later judgment of First Agency relates back.
On November 30, 1984, the trial court signed and filed a journal entry which began: “Now on this 8th day of November, 1984, pursuant to K.S.A. 60-254(b), . . . the Court enters the following judgments . . . .” There is no reference elsewhere in the journal entry to K.S.A. 60-254(b), and even though the trial court was entering judgment on fewer than all of the claims for parties to the litigation, the journal entry contains no express determination by the trial court “that there is no just reason for delay” and there is no “express direction for the entry of judgment.”
First Agency claims that First National Bank’s appeal is an attack on the propriety of the November 30, 1984, entry of judgment, and as such is barred by res judicata. The argument is not persuasive. First National Bank is not contesting the propriety of the November 30, 1984 order; it merely questions the effect of that journal entry, arguing that the journal entry does not constitute a final judgment giving rise to a judgment lien.
An order cannot be res judicata unless it constitutes a final judgment. That is the very question which is now before this court. Further, for res judicata to apply, the cases must involve the same issues and the parties must be the same or in privity. See Sampson v. Hunt, 233 Kan. 572, 583, 665 P.2d 743 (1983); Weaver v. Frazee, 219 Kan. 42, 51, 547 P.2d 1005 (1976). First National Bank was not a party to the first action, nor was it in privity with any party to that action. Moreover, the issues differ. The first action concerned First Agency’s entitlement to judgment against R & D Investments, a general partnership. First National Bank’s appeal here concerns the effect of the journal entry of partial judgment filed on November 30, 1984, in the earlier action. Clearly, the issues raised in this appeal are not barred by res judiciata.
The principal issue is whether the journal entry filed on November 30, 1984, was sufficient to effect the entry of a final judgment under K.S.A. 60-254(b). A judgment rendered by a district court operates as a lien on real estate of the judgment debtor. K.S.A. 1986 Supp. 60-2202(a). Such a lien is effective from the date on which the petition in the action was filed, not to exceed four months prior to the “entry of judgment.” K.S.A. 1986 Supp. 60-2202(a). No judgment is effective unless and until a journal entry or judgment form is signed by the trial judge and filed with the clerk of the court. K.S.A. 60-258. That provision is made specifically subject to K.S.A. 60-254(b), which provides:
“When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.”
In this case, the trial court filed a memorandum of decision in which the judge directed counsel to prepare a formal journal entry. The trial court’s memorandum of decision made no mention of K.S.A. 60-254(b), and made no express determination “that there is no just reason for delay” nor did it make “an express direction for the entry of judgment.”
The journal entry, prepared by counsel and signed by the trial court, commences:
“Now on this 8th day of November, 1984, pursuant to K.S.A. 60-254(b), and a hearing on a Motion to Settle Journal Entry, pursuant to Supreme Court Rule No. 170, the Court enters the following judgments . . . .”
Nothing further is stated in the trial court’s journal entry with reference to K.S.A. 60-254(b), nor is there included within that journal entry any express determination that there is no just reason for delay, nor is there an express direction for the entry of judgment.
In the federal courts, entry of judgment in compliance with Fed. R. Civ. Proc. 54(b), which is identical to our K.S.A. 60-254(b), “enables a lien to be imposed on the judgment debtor’s property and a writ of execution to be issued to begin the process of collecting any damage award.” 10 Wright, Miller, & Kane, Federal Practice and Procedure: Civil 2d § 2661, 128-29 (1983). The D. C. Circuit has held, however, that absent the express determination and direction required by 54(b), there is no judgment upon which an execution may issue prior to the adjudication of the entire case. Redding & Company v. Russwine Construction Corporation, 417 F.2d 721, 727 (D.C. Cir. 1969). This court has expressed its intent to “adopt and follow the federal decisions which interpret Rule 54(b) of the Federal Rules of Civil Procedure.” Dennis v. Southeastern Kansas Gas Co., 227 Kan. 872, 878, 610 P.2d 627 (1980). The federal authorities consistently hold that an order disposing of fewer than all claims or parties must contain an express determination that there is no just reason for delay and an express direction for the entry of judgment before the order is considered a final judgment. See D & H Marketers, Inc. v. Freedom Oil & Gas, Inc., 744 F.2d 1443, 1444 (10th Cir. 1984); 6 Moore, Taggert, & Wicker, Federal Practice ¶ 54.54 at 54-287 and ¶ 54.28[2] (2d ed. 1987) and authorities cited therein; 10 Wright, Miller, & Kane, § 2653, 25-26, 40, 115-16 and authorities cited therein; Annot., 38 A.L.R.2d 377, 381-82, 392-96, and authorities cited therein.
Federal cases, in which Rule 54(b) was mentioned by the trial court, but in which there was no express determination and direction, were held not final judgments because the order did not contain the express determination and direction required by the Rule. See Mooney v. Frierdich, 784 F.2d 875 (8th Cir. 1986), and Frank Briscoe Co. v. Morrison-Knudsen Co., 776 F.2d 1414 (9th Cir. 1985).
Our own cases, as the Court of Appeals points out, have held that the entry of a final judgment as to less than all the claims or for less than all the parties in an action involving multiple claims or parties is not effective unless the court makes “an express determination that there is no just reason for delay” and “an express direction for the entry of judgment.” Fredricks v. Foltz, 221 Kan. 28, 31, 557 P.2d 1252 (1976); Henderson v. Hassur, 1 Kan. App. 2d 103, 107, 562 P.2d 108 (1977); and see Dennis v. Southeastern Kansas Gas Co., 227 Kan. 872.
We agree with the Court of Appeals that:
“Faced with the clear requirements of K.S.A. 60-254(b) and the strong policy against piecemeal appeals, we will not assume that the court made an express determination that there was no just reason for delay merely because it entered judgment ‘pursuant to K.S.A. 60-254(b).’ ” 11 Kan. App. 2d at 646-47.
A trial court, intending to enter a final judgment on less than all claims or against less than all parties, must make an express determination that there is no just reason for delay and must expressly direct the entry of judgment. These must appear affirmatively in the record, preferably by use of the statutory language.
The Court of Appeals, in Syl. ¶ 4 of its opinion, and in the corresponding portion of its opinion at 11 Kan. App. 2d at 647, states that the trial court’s conclusion that there is no just reason to delay entry of final judgment must appear affirmatively in the record, either by a recitation of the statutory language “or by a statement of the reasons for the decision to certify.” We disagree with the latter alternative, and disapprove the quoted language from the Court of Appeals’ opinion. Many of the federal courts have strongly encouraged a statement of the reasons why a trial court is entering a Rule 54(b) certification; however, the statement of the trial court’s reasons is in addition to the express determination and the express direction required by the Rule; the statement of the reasons is not an alternative which trial courts may follow. We have not, in Kansas, required a trial court to state its reasons in making such certification, and such a statement of reasons, while it might be helpful to an appellate court, is not an alternative to the express requirements of the statute that the trial court must make an express determination that there is no just reason for delay and expressly direct the entry of judgment. The language of the statute is clear, and must be followed. We agree with the Court of Appeals that the record here fails to disclose that the trial judge made an express determination that there was no just reason for delay when he rendered the November 30, 1984, partial summary judgment. That judgment, therefore, was not á final judgment and did not relate back to July 30, 1984.
First Agency argues that the trial court’s failure to make the necessary determinations prior to the entry of judgment may be corrected by a nunc pro tunc order. We agree with the Court of Appeals that the judgment in this case may not be corrected nunc pro tunc. The trial court did not make an express determination or an express direction, as required in the statute; these omissions were not mere clerical errors which may be corrected nunc pro tunc; and the proposed change would enlarge the judgment as originally rendered and substantially change the effective date of the judgment. The judgment of the trial court is reversed, and the judgment of the Court of Appeals is affirmed as modified. | [
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The opinion of the court was delivered by
Herd, J.:
Three interlocutory appeals in medical malpractice suits have been consolidated for a determination of the constitutionality of K.S.A. 1986 Supp. 60-3403 (hereafter 60-3403). In Farley v. Engelken, et al., Case No. 59,314, the district court of Pottawatomie County upheld the constitutionality of the statute and plaintiff has appealed. In the other cases, Ditto, et al. v. Shawnee Mission Medical Center, Case No. 59,338, and Ridge v. Barker, Case No. 59,591, the district courts of Johnson County and Barber County found the statute to be unconstitutional and the defendants have appealed. Plaintiffs in all three cases are united in interest in asserting the unconstitutionality of the statute and will be referred to collectively throughout this opinion as plaintiffs. As the various health care provider defendants are likewise united in interest in asserting the constitutionality of the statute they will be referred to collectively as defendants.
In addition to the conflicting decisions in our state district courts, a division of authority also exists in the federal trial courts of Kansas. In Ferguson v. Garmon, 643 F. Supp. 335 (D. Kan. 1986), and Crowe by and through Crowe v. Wigglesworth, 623 F. Supp. 699 (D. Kan. 1985), Chief Judge O’Connor and Judge Kelly upheld the constitutionality of the statute, while in Coburn by and through Coburn v. Agustin, 627 F. Supp. 983 (D. Kan. 1985), and Fretz v. Keltner, 109 F.R.D. 303 (D. Kan. 1985), Judges Theis and Saffels found the statute unconstitutional.
The primary question presented on appeal is whether 60-3403 violates the equal protection clauses of the Kansas and United States Constitutions and Section 18 of the Kansas Bill of Rights. The statute was enacted in 1985 and abrogates the common-law collateral source rule in “any medical malpractice liability action.” The collateral source rule is a common-law rule preventing the introduction of certain evidence, summarized in the Restatement (Second) of Torts § 920A (1977), as “[p]ayments made to or benefits conferred on the injured party from other sources [which] are not credited against the tortfeasor’s liability although they cover all or a part of the harm for which the tortfeasor is liable.” In Allman v. Holleman, 233 Kan. 781, Syl. ¶ 8, 667 P.2d 296 (1983), we stated the rule as:
“The collateral source rule provides that 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.”
Such payments are commonly known as collateral source benefits or payments. K.S.A. 1986 Supp. 60-3403 is the successor to K.S.A. 60-471, which was found unconstitutional by this court in Wentling v. Medical Anesthesia Services, 237 Kan. 503, 701 P.2d 939 (1985).
K.S.A. 1986 Supp. 60-3403 provides:
“Evidence of collateral source payments and amounts offsetting payments; admissibility; effect, (a) In any medical malpractice liability action, evidence of the amount of reimbursement or indemnification paid or to be paid to or for the benefit of a claimant under the following shall be admissible: (1) Medical, disability or other insurance coverage except life insurance coverage; or (2) workers’ compensation, military service benefit plan, employment wage continuation plan, social welfare benefit program or other benefit plan or program provided by law.
“(b) When evidence of reimbursement or indemnification of a claimant is admitted pursuant to subsection (a), the claimant may present evidence of any amounts paid to secure the right to such reimbursement or indemnification and the extent to which the right to recovery is subject to a lien or subrogation rights.
“(c) In determining damages in a medical malpractice action, the trier of fact shall consider: (1) The extent to which damages awarded will duplicate reimbursement or indemnification specified in subsection (a); and (2) the extent to which such reimbursement or indemnification is offset by amounts or rights specified in subsection (b).
“(d) The provisions of this section shall apply to any action pending or brought on or after July 1, 1985, regardless of when the cause of action accrued.”
Plaintiffs assert that the statute unconstitutionally creates a class of plaintiffs in tort litigation, insured or otherwise compensated medical malpractice plaintiffs, who are treated differently from all other plaintiffs in tort litigation. The medical malpractice plaintiffs do not receive the benefit of the collateral source rule while all other tort plaintiffs do receive that benefit. It is also asserted the statute creates a class of tort litigation defendants, health care providers, who are not subject to the rule, while all other tort defendants are subject to the rule. Defendants, on the other hand, assert the statute is constitutional and that the classifications created are within the legislature’s authority in seeking a remedy to a problem of extreme public interest.
The Fourteenth Amendment to the United States Constitution provides that no state shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The Kansas counterpart to the Fourteenth Amendment equal protection clause is found in Sections 1 and 2 of the Bill of Rights of the Kansas Constitution, which provide:
“§ 1. Equal rights. All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”
“§ 2. Political power; privileges. All political power is inherent in the people, and all free governments are founded on their authority, and are instituted for their equal protection and benefit. No special privileges or immunities shall ever be granted by the legislature, which may not be altered, revoked or repealed by the same body; and this power shall be exercised by no other tribunal or agency.”
While these two provisions are given much the same effect as the clauses of the Fourteenth Amendment relating to due process and equal protection of the law (Henry v. Bauder, 213 Kan. 751, 752-53, 518 P.2d 362 [1974]), Section 2 of the Kansas Bill of Rights has been construed as referring only to political privileges and not to property rights. When an equal protection challenge is raised involving individual personal or property rights, not political rights, the proper constitutional section to be considered is Section 1 of the Kansas Bill of Rights. Stephens v. Snyder Clinic Assn, 230 Kan. 115, 128, 631 P.2d 222 (1981).
When a statute is attacked on equal protection grounds, the general rule is that the statute is presumed constitutional, and the burden is on the party attacking the statute to prove otherwise. Only in cases involving “suspect classifications” or “fundamental interests” is the presumption of constitutionality displaced and the burden placed on the party asserting constitutionality to demonstrate a compelling state interest which justifies the classification. Gumbhir v. Kansas State Board of Pharmacy, 231 Kan. 507, 521, 646 P.2d 1078 (1982), cert. denied 459 U.S. 1103 (1983). In reviewing legislative enact- merits, the court does not sit to judge the merits or wisdom of the act; the court’s limited review of the challenged statute is whether the classifications are reasonable, not arbitrary, and are justified by a legitimate state interest. City of Wichita v. White, 205 Kan. 408, 409, 469 P.2d 287 (1970). In other words, does the legislative end justify the classification means?
Before turning to the principal issue, let us review the legal concept of equality. Equality was recognized by the founding fathers as one of man’s natural rights, yet, the original Constitution and Bill of Rights contained no equal protection guarantees. It wasn’t until the adoption of the Fourteenth Amendment in 1868 that the Constitution formally guaranteed people equal protection of the laws. However, the Fourteenth Amendment applies only to the states. The guarantee of equal treatment under federal law is dependent upon interpretation of the due process clause of the Fifth Amendment, which contains no equal protection clause. See Shapiro v. Thompson, 394 U.S. 618, 642, 22 L. Ed. 2d 600, 89 S. Ct. 1322 (1969); Bolling v. Sharpe, 347 U.S. 497, 98 L. Ed. 884, 74 S. Ct. 693 (1954).
While equality is the rule and classification the exception, it is readily apparent that complete numerical equality of treatment for all persons is impossible, particularly in a pluralistic, diverse society such as the United States. Thus, some types of classification are inescapable even though they create burdened as well as benefited classes. Classification in application of the law, by its very nature, creates preference to the benefited class. Thus, classification is discriminatory. However, discrimination under proper rules is not prohibited. For instance, equal protection does not require a state to license a blind person to drive a motor vehicle merely because it licenses those with good vision. Nor does equal protection prevent the state from regulating sanitary conditions in restaurants where it does not regulate such conditions in repair shops. We could go on with many illustrations showing that unequal treatment of persons under proper circumstances is essential to the operation of government. On the other hand, the equal protection clause forbids some types of classification. The court’s problem has thus been to articulate principles by which constitutional differentiations can be separated from unconstitutional differentations.
The United States Supreme Court has utilized varying standards in distinguishing constitutional from unconstitutional classification. It currently recognizes and applies three standards, or “levels of scrutiny,” in analyzing equal protection claims. The standard of scrutiny increases with the perceived importance of the right or interest involved and the sensitivity of the classification. Of the three articulated tests, the least strict is the “rational” or “reasonable” basis test. In McGowan v. Maryland, 366 U.S. 420, 6 L. Ed. 2d 393, 81 S. Ct. 1101 (1961), the court discussed the rational basis test:
“[T]he Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.” 366 U.S. at 425-26.
The next level of judicial review in equal protection cases is of more recent origin. This intermediate level of review is termed “heightened scrutiny” and is applicable to “quasi-suspect” classifications. It requires the statutory classification to substantially further a legitimate legislative purpose. Under this standard, a greater justification for the statutory classification than is required under the rational basis analysis must be shown, including a direct relationship between the classification and the state’s goal. Craig v. Boren, 429 U.S. 190, 197, 50 L. Ed. 2d 397, 97 S. Ct. 451 (1976). Gender-based classifications have been subjected to middle-level scrutiny, Reed v. Reed, 404 U.S. 71, 30 L. Ed. 2d 225, 92 S. Ct. 251 (1971); Craig v. Boren, 429 U.S. 190, as have those based on legitimacy, Pickett v. Brown, 462 U.S. 1, 76 L. Ed. 2d 372, 103 S. Ct. 2199 (1983); Trimble v. Gordon, 430 U.S. 762, 52 L. Ed. 2d 31, 97 S. Ct. 1459 (1977); and Mathews v. Lucas, 427 U.S. 495, 49 L. Ed. 2d 651, 96 S. Ct. 2755 (1976).
The most critical level of examination under current equal protection analysis is “strict scrutiny,” which applies in cases involving suspect classifications such as race, ancestry, and alienage, and fundamental rights expressly or implicitly guaranteed by the Constitution. Fundamental rights recognized by the Supreme Court include voting, Hill v. Stone, 421 U.S. 289, 44 L. Ed. 2d 172, 95 S. Ct. 1637, reh. denied 422 U.S. 1029 (1975); privacy, Griswold v. Connecticut, 381 U.S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965); marriage, Loving v. Virginia, 388 U.S. 1, 18 L. Ed. 2d 1010, 87 S. Ct. 1817 (1967); Skinner v. Oklahoma, 316 U.S. 535, 86 L. Ed. 1655, 62 S. Ct. 1110 (1942); and travel, Shapiro v. Thompson, 394 U.S. 618, 22 L. Ed. 2d 600, 89 S. Ct. 1322 (1969). Suspect classifications recognized by the Court include race, McLaughlin v. Florida, 379 U.S. 184, 13 L. Ed. 2d 222, 85 S. Ct. 283 (1964); ancestry, Oyama v. California, 332 U.S. 633, 92 L. Ed. 249, 68 S. Ct. 269 (1948); and alienage, Graham v. Richardson, 403 U.S. 365, 29 L. Ed. 2d 534, 91 S. Ct. 1848 (1971); Yick Wo v. Hopkins, 118 U.S. 356, 30 L. Ed. 220, 6 S. Ct. 1064 (1886). Under the “strict scrutiny” test, it must be demonstrated that the classification is necessary to serve a compelling state interest, otherwise it is unconstitutional. Shapiro v. Thompson, 394 U.S. at 634. Thus, the burden of proof is shifted from plaintiff to defendant and the ordinary presumption of validity of the statute is reversed.
As the above review illustrates, the level of scrutiny to be applied often determines the constitutionality of the statute. For a more detailed discussion of the three recognized levels of scrutiny, see Crowe by and through Crowe v. Wigglesworth, 623 F. Supp. at 702-03.
We now turn to the issue of which standard of scrutiny must be applied to 60-3403. Roth plaintiffs and defendants attempt to rely upon Wentling v. Medical Anesthesia Services, 237 Kan. 503, 701 P.2d 939 (1985), where we held K.S.A. 60-471, the predecessor to 60-3403, unconstitutional. In Wentling, this court quoted at some length from Judge Theis’ opinion in Doran v. Priddy, 534 F. Supp. 30 (D. Kan. 1981), finding K.S.A. 60-471 unconstitutional, and then stated, “A majority of the members of this court are in agreement with the conclusions reached by Judge Theis.” 237 Kan. at 516-18. The conclusion reached by Judge Theis, and approved by the majority, was that in analyzing K.S.A. 60-471 the court “must apply a scrutiny which . . . is‘not a toothless one.’ ” 534 F. Supp. at 37 (quoting Trimble v. Gordon, 430 U.S. 762). Judge Theis concluded that, because of the important nature of the rights affected by the statute under review, the court must apply a more stringent standard of review than that applied under the rational basis test. Thus, in Wentling, without specifically so stating, we applied the heightened scrutiny test under the United States Constitution. While we are concerned here with the same issue, as hereinafter demonstrated, the Kansas Constitution affords separate, adequate, and greater rights than the federal Constitution. Therefore, we clearly and expressly decide this case upon Sections 1 and 18 of the Kansas Bill of Rights. See Michigan v. Long, 463 U.S. 1032, 77 L. Ed. 2d 1201, 103 S. Ct. 3469 (1983).
In addition to our holding in Wentling, other considerations would indicate a heightened scrutiny analysis is appropriate in this case. For instance, Section 18 of the Kansas Bill of Rights provides that all persons, for injuries suffered in person, reputation, or property, shall have a remedy by due course of law, and justice administered without delay.
In Ernest v. Faler, 237 Kan. 125, 697 P.2d 870 (1985), we considered the nature of the right granted in Section 18. The specific issue facing the court in Ernest was whether K.S.A. 2-2457 (repealed L. 1986, ch. 8, § 2) was unconstitutional on the basis that it results in a denial of due process of law and equal protection of the law. K.S.A. 2-2457 required a person damaged from a pesticide application to file, within 60 days after the date the damage was discovered, a written statement with the county attorney that he had been damaged in order to maintain a civil action to recover damages.
Justice (now Chief Justice) Prager, writing for the court, first reviewed the various tests applied when considering whether a statute offends the equal protection clause and noted that in cases involving “suspect classifications” or “fundamental interests” the courts adopt an attitude of active and critical analysis, requiring the courts to consider the nature of the rights affected by the legislation, the classification established, and the governmental interests necessitating the classification. 237 Kan. at 129-30. The court reasoned:
“The right of the plaintiff involved in this case is the fundamental constitutional right to have a remedy for an injury to person or property by due course of law. This right is recognized in the Kansas Bill of Rights § 18, which provides that all persons, for injuries suffered in person, reputation or property, shall have a remedy by due course of law, and justice administered without delay. In 1904, the term, ‘remedy by due course of law,’ was defined in Hanson v. Krehbiel, 68 Kan. 670, 75 Pac. 1041 (1904), as follows:
‘ “Remedy by due course of law,” as used in section 18 of the bill of rights, means the reparation for injury, ordered by a tribunal having jurisdiction, in due course of procedure and after a fair hearing.’ ” 237 Kan. at 131. (Emphasis added.)
Defendants argue 60-3403 does not impair plaintiffs’ right to a remedy because plaintiffs can still sue and recover damages against a health care provider in Kansas; thus, no fundamental right is affected. Admittedly, 60-3403 does not eliminate a medical malpractice victim’s right to bring suit. However, it impairs his remedy if a jury determines the victim is not entitled to full compensation from the defendant because the victim has received benefits from independent sources.
While we do not reach the issue of whether 60-3403 violates Section 18 of the Kansas Bill of Rights, we find that the right of a victim of medical malpractice to a remedy against the person or persons who wronged him is sufficiently threatened by 60-3403 to require a higher standard of review than the rational basis test.
The rationale for applying a higher level of scrutiny to this particular legislation is well stated by Learner, Restrictive Medical Malpractice Compensation Schemes: A Constitutional “Quid Pro Quo” Analysis to Safeguard Individual Liberties, 18 Harv. J. on Legis. 143, 184, 189 (1981). Learner compares the political powerlessness of the class of future medical malpractice victims to that of traditional “suspect” and “semi-suspect” classifications — e.g., minorities, women, illegitimates, and aliens. He reasons that certain similar characteristics (e.g., lack of group cohesiveness and political disorganization) justify treating future malpractice victims similarly to other politically powerless, semi-suspect classes who receive judicial protection through an enhanced scrutiny of legislation critically affecting their individual rights. Learner concludes:
“When the legislative balancing process is unduly skewed by the structural inability of the burdened class to form active political coalitions, a court must be sensitive to its institutional role as a counter-majoritarian monitor of legislative legitimacy. The political powerlessness of future medical malpractice victims arguably justifies their status as a semi-suspect class entitled to judicial protection against majoritarian subjugation of individual rights.” p. 189.
We further note that other jurisdictions which have considered equal protection challenges under the Fourteenth Amendment to statutes abrogating the collateral source rule in medical malpractice cases have also applied a more rigorous scrutiny than that applied under the rational basis test. For example, in Carson v. Maurer, 120 N.H. 925, 424 A.2d 825 (1980), the New Hampshire Supreme Court held that, while the right to recover for injuries is not a fundamental right in New Hampshire, the right to be indemnified against medical malpractice is “sufficiently important to require that the restrictions imposed on those rights be subjected to a more rigorous judicial scrutiny than allowed under the rational basis test.” 120 N.H. at 931-32. The Supreme Court of North Dakota also used an intermediate level of scrutiny to hold a similar statute invalid in Arneson v. Olson, 270 N.W.2d 125 (N.D. 1978). The court there noted this intermediate test required a “close correspondence between statutory classification and legislative goals.” 270 N.W.2d at 133. See also Graley v. Satayatham, 74 Ohio Op. 2d 316, 320, 343 N.E.2d 832 (1976), where the Ohio court held the crucial question is whether there is an appropriate governmental interest suitably furthered by the differential treatment; and Jones v. State Board of Medicine, 97 Idaho 859, 555 P.2d 399 (1976), in which the Supreme Court of Idaho determined the standard of review was whether the statute reflected any reasonably conceived public purpose and whether the establishment of the classification had a fair and substantial relation to the achievement of the governmental objective and purpose. Further, two federal district courts of Kansas have applied a heightened level of scrutiny in finding 60-3403 unconstitutional. See Coburn by and through Coburn v. Agustin, 627 F. Supp. 983, and Fretz v. Keltner, 109 F.R.D. 303 (D. Kan. 1985).
It is also worthy of mention that in all of the above-mentioned cases (except Jones) the courts held statutes abrogating the collateral source rule unconstitutional. In Jones, the court remanded the case for determination of questions pertinent to the equal protection challenges. 97 Idaho at 877.
We recognize that a number of courts, facing the issue now before us, have opted to apply the less stringent rational basis test. See, e.g., Eastin v. Broomfield, 116 Ariz. 576, 570 P.2d 744 (1977); Pinillos v. Cedars of Lebanon Hospital Corp., 403 So. 2d 365 (Fla. 1981); Bernier v. Burris, 113 Ill. 2d 219, 497 N.E.2d 763 (1986); Rudolph v. Iowa Methodist Medical Ctr., 293 N.W.2d 550 (Iowa 1980).
We further recognize that this court has previously applied a “rational basis” test to uphold the constitutionality of malpractice “crisis” legislation. See, e.g., Stephens v. Snyder Clinic Ass’n, 230 Kan. 115, 631 P.2d 222 (1981), and State ex rel. Schneider v. Liggett, 223 Kan. 610, 576 P.2d 221 (1978). However, both of these cases are distinguishable from the present case.
In Liggett, this court upheld the constitutionality of the Kansas Health Care Provider Insurance Act against a physician’s complaint that combining high-risk physicians with low-risk practitioners violated his equal protection rights. The Liggett court determined there is no “fundamental interest” involved in the practice of medicine or in any other profession. Therefore, the court concluded the defendant’s equal protection challenge must be gauged by the traditional “rational relationship” test. 223 Kan. at 618. Liggett is clearly distinguishable from the instant case as the legislation in question in Liggett did not classify or burden victims of medical malpractice.
In Stephens, the court upheld legislation imposing a shorter limitation period for tort actions brought against health care providers as constitutional. However, the court did not consider whether a heightened standard of review was appropriate. Instead, the court simply cited Liggett as support for its application of the “reasonable basis” test. Stephens is also distinguishable from this case since the legislation at issue in Stephens did not prevent an injured party from obtaining a full remedy from the negligent tortfeasors. Instead, it limited the time period in which an action could be brought.
Finally, while we are aware the United States Supreme Court has applied heightened scrutiny to very limited classifications, we are interpreting the Kansas Constitution and thus are not bound by the supremacy clause of the federal Constitution.
Having determined the appropriate standard of review, we now turn to the question of whether the equal protection clause of the Kansas Constitution is violated by the statutory abrogation of the collateral source rule in medical malpractice actions. In order to resolve this question, we must balance the interests of the burdened class (insured or otherwise compensated victims of medical malpractice) and the benefited class (negligent health care providers and their insurers) with the goal of the legislation (to insure quality and available health care). Finally, we must decide whether the classifications substantially further a legitimate legislative objective.
K.S.A. 1986 Supp. 60-3403 singles out a class of persons and organizations (negligent health care providers) for preferential treatment not extended to any other tortfeasors. This particularly narrow class of defendants is relieved of professional accountability for their actions when a plaintiff has received compensation through other means.
An examination of the effect of 60-3403 upon the disadvantaged class — insured or otherwise compensated victims of medical malpractice — provides stark contrast. These victims of medical malpractice, unlike other tort claimants, are denied compensation from the person or persons who have wronged them. In effect, it gives a negligent health care provider a credit against the damage the provider inflicts on its victim in the amount of the value of the victim’s independent contractual rights. Thus, the statute renders the damage award one of need rather than actual compensation for loss.
As pointed out by the Ohio court in Graley v. Satayatham, 74 Ohio Op. 2d at 320, there can be no satisfactory reason for such separate and unequal treatment. The Ohio court states:
“There obviously is ‘no compelling governmental interest’ unless it be argued that any segment of the public in financial distress be at least partly relieved of financial accountability for its negligence. To articulate the requirement is to demonstrate its absurdity, for at one time or another every type of profession or business undergoes difficult times, and it is not the business of government to manipulate the law so as to provide succor to one class, the medical, by depriving another, the malpracticed patients, of the equal protection mandated by the constitution. Even remaining with the area of the professions, it is notable that the special consideration given to the medical profession by these statutes is not given to lawyers or dentists or others who are subject to malpractice suits.”
Similar relevant commentary is found in Kenyon v. Hammer, 142 Ariz. 69, 84, 688 P.2d 961 (1984), where the Supreme Court of Arizona held unconstitutional a statute which required medical malpractice actions to be brought within three years from the date of injury. The court reasoned:
“It may be argued, of course, that the high premiums in malpractice cases work an economic hardship on physicians and that, therefore, the special statute of limitations should be sustained as a necessary ‘relief measure’ for health care providers. We doubt the factual premise for such an argument. More importantly, however, we believe that the state has neither a compelling nor legitimate interest in providing economic relief to one segment of society by depriving those who have been wronged of access to, and remedy by, the judicial system. If such a hypothesis were once approved, any profession, business or industry experiencing difficulty could be made the beneficiary of special legislation designed to ameliorate its economic adversity by limiting access to the courts by those whom they have damaged. Under such a system, our constitutional guarantees would be gradually eroded, until this state became no more than a playground for the privileged and influential. We believe this is exactly what those guarantees were designed to prevent.” (Emphasis added.)
K.S.A. 1986 Supp. 60-3403 is one of several statutes enacted by the legislature in 1985 and 1986 in its ongoing attempts to deal with the so-called medical malpractice insurance crisis. See K.S.A. 1986 Supp. 60-3401 through 60-3414. The legislative purpose in enacting the statutes is set forth in K.S.A. 1986 Supp. 60-3405, which states:
“Substantial increases in costs of professional liability insurance for health care providers have created a crisis of availability and affordability. This situation poses a serious threat to the continued availability and quality of health care in Kansas. In the interest of the public health and welfare, new measures are required to assure that affordable professional liability insurance will be available to Kansas health care providers, to assure that injured parties receive adequate compensation for their injuries, and to maintain the quality of health care in Kansas.”
Thus, by abrogating the collateral source rule in medical malpractice actions, the legislature has attempted to reduce or eliminate malpractice verdicts, thereby effectuating a reduction in liability insurance premiums. A reduction in premiums will allegedly insure the continued availability and quality of health care in this state.
While the legislature’s purpose in enacting 60-3403 may have been to increase the quality and availability of health care, application of such a statute is counterproductive. It is a major contradiction to legislate for quality health care on the one hand, while on the other hand, in the same statute, to reward negligent health care providers. As at least one court has observed, if the medical profession is less accountable than formerly, relaxation of medical standards may occur with the public the victim. Graley v. Satayatham, 74 Ohio Op. 2d at 320. Further, while the effect of 60-3403 may be to lower liability insurance premiums to the benefited class, it may also result in an increased insurance burden on the injured victims, their insurers, and the general public. The reasoning of the Supreme Court of New Hampshire in Carson v. Maurer, 120 N.H. at 939-40, is instructive on this point:
“We first note that, ‘[a]bolition of the [collateral source] rule . . . presents the anomalous result that an injured party’s insurance company may be required to compensate the victim even though the negligent tortfeasor is fully insured. Not only does this abolition patently discriminate against the victim’s insurer, it may eventually result in an increased insurance burden on innocent parties.’ [Citation omitted.] Thus, although RSA 507-C:7 I (Supp. 1979) may result in lower malpractice insurance rates for health care providers, it may also increase the cost of insurance for members of the general public because they are potential victims of medical negligence.
“Finally, although the collateral source rule operates so as to place some plaintiffs in a better financial position than before the alleged wrong, its abolition will result in a windfall to the defendant tortfeasor or the tortfeasor’s insurer. Moreover, this windfall will sometimes be at the expense of the plaintiff, because ‘in many instances the plaintiff has paid for these [collateral] benefits in the form of . . . concessions in the wages he received because of such fringe benefits.’ [Citation omitted.] Thus, when the collateral payments represent employment benefits, the price for the public benefit derived from RSA 507-C:71 (Supp. 1979) will be paid solely by medical malpractice plaintiffs.”
Thus, 60-3403 places a heavy burden not only upon the injured plaintiff but also upon the victim’s insurer and potentially the general public. Further, if it is true, as the legislature has determined, that a health care “crisis” exists, the burden of remedying that crisis should not be placed solely upon the shoulders of malpractice victims. Rather, it more appropriately should fall upon those causing the crisis — the negligent health care providers. A number of courts agree. See, e.g., Coburn by and through Coburn v. Agustin, 627 F. Supp. at 995-96; and Crowe by and through Crowe v. Wigglesworth, 623 F. Supp. at 706. In Crowe, Judge Kelly states:
“On a more fundamental level, this Court is not at all persuaded this discriminatory legislation is needed or that it will achieve its stated goals. Regarding need, defendants cavalierly refer to the ‘obvious’ medical malpractice crisis justifying this legislation. What is apparently so clear to the medical profession, the insurance industry, their respective lobbyists, and the Legislature is a matter of deep and growing concern to this Court as well a a number of commentators and other courts across the country. In the Legislature’s haste to remedy the situation, it has overlooked or, more likely, ignored the fundamental cause of the so-called crisis: it is the unmistakable result not of excessive verdicts, but of excessive malpractice by health care providers.” (Emphasis added.)
We further point out that under K.S.A. 60-3403 in a case involving both medical malpractice and products liability, collateral source evidence would be admissible in the malpractice portion of the trial and inadmissible in the products liability portion. Since a jury would be unable to erase the collateral source evidence once admitted for malpractice purposes, the trial would have to be bifurcated with separate juries on each issue, creating an unworkable administration of justice under comparative fault principles.
K.S.A. 60-3403 is a not so subtle attempt to alter civil jury trials contrary to constitutional guarantees.
We conclude the classifications created by 60-3403 treat both negligent health care providers and their victims differently from other persons similarily situated and do not substantially further a legitimate legislative objective, contrary to law.
We hold K.S.A. 1986 Supp. 60-3403 unconstitutional under the equal protection clause of the Rill of Rights of the Kansas Constitution.
The trial court’s decision in Case No. 59,314 is reversed, the decisions in Case Nos. 59,338 and 59,591 are affirmed, and the three cases are remanded for proceedings consistent with this opinion. | [
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|
The opinion of the court was delivered by
Herd, J.:
This is an action for damages to real property resulting from the presence of natural gas in plaintiffs’ irrigation water. The plaintiff landowners (hereafter plaintiffs or appellees) claim the natural gas escaped from two of the. defendant’s Hugoton gas wells. A jury returned a verdict in favor of the plaintiffs for $656,006.40, and the defendant, Amoco Production Company, appeals.
Irrigation water in southwest Kansas is derived primarily from water-bearing aquifers known as: (1) The Pleistocene deposits, located at a depth of approximately 275 feet; (2) the Ogalalla formation, found at a depth of between 275 and 350 feet; and (3) the Dakota and Cheyenne formations, located below the Ogalalla. The Pleistocene is the best aquifer, while the Ogalalla is better than the Dakota or Cheyenne formations. This is because the Dakota and Cheyenne formations are composed of fine-grained sandstone, while the Ogalalla is made up of coarse sand and gravel and thus has more porosity and permeability.
The appellees, Earl and Loretta Williams and their son Don Williams, own and farm approximately 2,500 acres of land located northwest of Ulysses. They operate five irrigation wells on this acreage: (1) A well completed in the Ogalalla on Section 29; (2) a well completed in the Ogalalla on Section 30; (3) a deep well drilled in 1968 through the Ogalalla and into the upper Dakota on Section 31; (4) a deep well drilled to 620 feet, through the Ogalalla, to the Dakota and Cheyenne on Section 32; and (5) a similar deep well drilled in 1971 to 576 feet on Section 34.
In the spring of 1968, appellees’ irrigation well on Section 32 occasionally quit running. An irrigation supply company (Weber Supply) examined the well several times but was unable to pinpoint the problem until an employee lit a cigarette, threw his match down, and natural gas ignited near the wellhead.
Nearby gas well operators were notified of the problem and in July of 1968, Amoco discovered problems with two of its Hugo-ton gas wells: the E. B. Williams No. 1, located on Section 29, immediately north of Section 32; and the Redinger Gas Unit B No. 1 on Section 33, immediately east of Section 32.
Amoco’s tests on the E. B. Williams well revealed 260 pounds of pressure between the 10 and %-inch surface casing and the seven-inch production casing, indicating a leak in the production casing. The well was repaired on July 31, 1968. The repair consisted of the installation of a 4 and %-inch production liner inside the production casing with a packer set at 2,329 feet. A packer is a device used to seal the space between the production casing and the repair liner. Amoco also installed a pressure gauge to monitor leaks in the space between the surface casing and production casing and between the production casing and the liner.
A leak was also discovered in the Redinger well on July 17, 1968. Unlike the E. B. Williams well, a pressure check on the Redinger well showed no pressure between the surface casing and production casing. Amoco concluded that corrosive fluids in the Glorietta formation at 1,300 feet had eaten through the production casing, permitting water and sand to fall inside the production casing to the bottom of the production liner, extinguishing the flow of gas. Thus, Amoco contends, no natural gas leaks ever occurred in this well. The same repair procedure was used on the Redinger well as was used on the E. B. Williams well and pressure gauges were installed to detect leakage.
In addition to repairing its own gas wells, Amoco attempted to restore production to plaintiffs’ irrigation well on Section 32. By mid-1969, after a series of modifications to plaintiffs’ equipment, steady production was restored at the rate of 1,300 to 1,400 gallons per minute. Prior to the natural gas leak, plaintiffs claim, the well could pump as much as 2,200 gallons per minute. Approximately one year after Amoco completed modification of appellees’ well, Weber Supply tested the well at 1,420 gallons per minute.
In February 1970, appellees filed an action in the United States District Court for the District of Kansas, seeking the recovery of temporary damages for crop loss on Section 32, and incidental equipment expense. Prior to trial, appellees amended their claim to include temporary damages for crop loss in the years 1968 through 1973. Appellees declined to follow the trial court’s suggestion that they amend their claims to seek permanent damages. A jury returned a verdict in favor of the appellees and against Amoco for $100,000 plus interest.
In 1971, appellees drilled a new deep irrigation well on Section 34 to replace a shallow well. The new well was drilled to a depth of 576 feet and was completed through the Ogalalla, Dakota, and Cheyenne formations. The designers of the well told appellees the well was capable of producing 1,500 gallons per minute. A well test conducted by Weber Supply on July 19, 1971, showed the well would produce 990 gallons per minute without drawing any air.
The well produced without problems for approximately two years. Sometime in July of 1973, appellees discovered natural gas in the well. The presence of natural gas in the well caused no substantial damage because appellees by this time knew how to produce water by throttling the engine back a little, thereby controlling the “surging” problem caused by the presence of gas in the water. Appellees never calculated the reduction in water production from the well due to throttling back the engine to control the surging. However, the well pumped an average of 1,000 gallons per minute in 1975.
During the mid-1970’s, a prohibition was placed upon the drilling of additional irrigation wells in southwest Kansas. This restriction was due to the significant decline in the water table caused by existing wells. As the water table has dropped over the years, a resulting decline in productivity in the area’s irrigation wells has also occurred. Appellees’ wells are no exception.
Appellees eventually filed two lawsuits which were consolidated for trial. The first lawsuit was filed in the district court of Grant County on July 30, 1975, seeking temporary damages for crop loss on the NW/4 of Section 34. The second lawsuit was filed on February 11, 1976, seeking temporary damages for crop loss on Section 32 occurring since February 22,1974 (the date of the judgment received in the federal court case).
The nature of the cases remained the same until the district court ruled on June 4, 1982, that appellees’ damages, if any, are permanent in nature and not temporary. Thereafter, in May of 1985, appellees were allowed to amend their lawsuit over Amoco’s objection, to add permanent damage claims with respect to land owned by the appellees in Sections 18, 19, 20, 29, 30 and 31. Thus, the case was tried on the theory that all of appellees’ 2,500 acres of land had been permanently damaged in 1974 by the presence of natural gas in the aquifer.
A jury trial was had and on September 27,1985, the jury found for the appellees and awarded damages in the amount of $656,006.40. Amoco appeals.
Amoco first contends the trial court erred in overruling Amoco’s motions for summary judgment, directed verdict, and judgment notwithstanding the verdict because appellees’ claim for permanent damages was barred by the statute of limitations.
Appellees originally filed suit for temporary damages for crop loss on Sections 32 and 34. The trial judge, in June of 1982, ruled that appellees’ damages, if any, were permanent in nature, and appellees have not cross-appealed from that ruling. Amoco argues that appellees’ claim for permanent damages accrued more than two years before suit was filed on July 30, 1975.
The parties agree that the two-year statute of limitations provided for in K.S.A. 60-513(a)(4) is applicable to the present action. However, they disagree as to when the limitations period commenced.
K.S.A. 60-513(b) provides:
“Except as provided in subsection (c) of this section, the cause of action in this action [section] shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall the period be extended more than ten (10) years beyond the time of the act giving rise to the cause of action.”
In Roe v. Diefendorf, 236 Kan. 218, 222, 689 P.2d 855 (1984), this court succinctly interpreted K.S.A. 60-513(b) as follows:
“The rule which has developed is: The statute of limitations starts to run in a tort action at the time a negligent act causes injury if both the act and the resulting injury are reasonably ascertainable by the injured person. . . . We hold the use of the term ‘substantial injury’ in the statute does not require an injured party to have knowledge of the full extent of the injury to trigger the statute of limitations. Rather, it means the victim must have sufficient ascertainable injury to justify an action for recovery of the damages, regardless of extent.”
Amoco argues that sometime prior to July 16, 1973, appellees discovered natural gas in their irrigation well on Section 34 and that appellees knew from past experience with Section 32 that it was a problem which would not abate. Amoco further contends the appellees were aware as early as 1969 of the problems with natural gas in their irrigation well on Section 32. Thus, Amoco reasons, appellees sustained substantial injury which was reasonably ascertainable more than two years before suit was filed on July 30, 1975.
Amoco argues that this court’s analysis in previous cases concerning water contamination or flooding is applicable here. Amoco points out that generally, in an action for permanent damages resulting from water contamination or flooding, the cause of action is deemed to have arisen when the contamination or flooding is discovered. See, e.g., Henderson v. Talbott, 175 Kan. 615, Syl. ¶ 1, 266 P.2d 273 (1954). However, this argument ignores the fact that the present action was originally brought for temporary damages. In McAlister v. Atlantic Richfield Co., 233 Kan. 252, 263, 662 P.2d 1203 (1983), this court discussed when a cause of action accrues for temporary 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’ ” (Quoting Gowing v. McCandless, 219 Kan. 140, 144, 547 P.2d 338 [1976].)
Since appellees’ actions were originally filed for temporary damages, each injury caused a new cause of action to accrue. The court ordered the action amended to one for permanent injury because, during the pendency of the action, the injury had changed from temporary to permanent. Accordingly, we hold appellees’ claims were timely filed and are not barred by the two-year statute of limitations as a matter of law.
Amoco next asserts the trial court erred in allowing appellees to amend their claim four months prior to trial.
From the time this lawsuit was filed in July of 1975, the appellees had claimed damages only for crop loss to Sections 32 and 34. In May of 1985, the trial court permitted appellees to amend their lawsuit to add a permanent damage claim with respect to six tracts of land located in Sections 18, 19, 20, 29, 30, and 31, covering 1,700 additional acres. Trial was held four months later, in September 1985.
K.S.A. 60-215 provides that leave to amend “shall be freely given when justice so requires.” A trial court is given broad discretionary power under 60-215 to permit the amendment of pleadings, and its actions thereto will not constitute reversible error unless it affirmatively appears that the amendment allowed or denied is so material it affects the substantial rights of the adverse party. Kennedy v. City of Sawyer, 228 Kan. 439, 447, 618 P.2d 788 (1980); Ballhorst v. Hahner-Foreman-Cale, Inc., 207 Kan. 89, 92, 484 P.2d 38 (1971).
Amoco argues its rights were substantially prejudiced by appellees’ amendment to the pleadings nearly ten years after the action was originally filed. Amoco contends that the original pleadings did not alert Amoco that it should accumulate evidence to defend damage claims other than those asserted with respect to Section 32 and the NW/4 of Section 34. Amoco also argues appellees’ amendment was barred by the statute of limitations for the reasons previously discussed.
Appellees counter by arguing that under K.S.A. 60-215(c) their 1985 amendment relates back to the original petition and thus does not violate the statute of limitations. K.S.A. 60-215(c) states:
“Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.”
Amoco concedes that there are no exceptions to K.S.A. 60-215(c), but notes that this court has held that the rule should not be applied where it would be inequitable or work an injustice to strictly apply the doctrine of relation back. See James v. City of Wichita, 202 Kan. 222, 225, 447 P.2d 817 (1968).
A trial court is given great latitude in permitting amendment of pleadings and its rulings will not be disturbed on appeal except for abuse of discretion. We find no showing of abuse of discretion.
Amoco next asserts the trial court erred in admitting the opinions and exhibits of appellees’ appraiser, Timothy Hagemann.
The measure of damages for permanent injury is the difference in the fair market value of the land before and after injury. Kiser v. Phillips Pipe Line Co., 141 Kan. 333, 336, 41 P.2d 1010 (1935); Hall v. Galey, 126 Kan. 699, 703, 271 Pac. 319 (1928). Thus, appellees’ appraiser testified concerning the fair market value of appellees’ land in 1974 before any damages were caused by natural gas in the aquifer. Appellees’ appraiser further testified regarding the value of the land following the alleged injury.
In determining the value of appellees’ land in 1974, Hagemann assumed that all of appellees’ property was fully irrigated. However, the evidence clearly showed that there were no irrigation wells on Sections 18, 19, and 20 and those Sections were used by appellees solely for dry land farming. Amoco contends the trial court erred in admitting this testimony because the appraiser improperly assumed the land had been changed to its most profitable use. Appellees, on the other hand, argue that Amoco’s “criticism” of Hagemann’s testimony goes to its weight rather than to its admissibility. Appellees further contend that Hagemann properly considered the irrigation potential of appellees’ land in determining its best and most advantageous use.
Amoco concedes that in determining what is fair compensation for damaged land, the owner is generally entitled to show the best and most advantageous use to which the property may be put. Steifer v. City of Kansas City, 175 Kan. 794, 799-800, 267 P.2d 474 (1954). However, Amoco argues this rule does not permit the owner to assess damages by assuming capital improvements have already been made to the land in order to utilize its highest and most advantageous use.
This argument has merit. 22 Am. Jur. 2d, Damages § 133, p. 193, states:
“The use to which plaintiff is putting his real estate will affect, but not place a limit on, its value. ... To the extent that other uses of the land in question would be more profitable, these other uses may be considered by the court to the extent that they affect the present value of that land. This may be true even though plaintiff has not taken advantage of that value. Notice, though, that it is the present value of the land in its condition immediately prior to the tort which is important. The court will not require the defendant to pay damages based upon a value which assumes that the land had been changed (for example, from wild to cultivated land) to the most profitable use.”
Thus, in determining the present value of land, a distinction must be made between land which may be irrigated and land which is irrigated.
We hold the trial court erred in allowing Hagemann to testify regarding the value of Sections 18,19, and 20 as if those Sections were irrigated land prior to 1974.
Amoco also argues the trial court erred in permitting Hagemann to testify that after the injury, Sections 29, 30, and 31 had no value as irrigated land. Yet, each of these Sections contained productive irrigation wells which appellees have continued to utilize extensively despite the presence of gas in other wells.
Hagemann also assumed that plaintiffs’ land on Section 32 and the NW/4 of Section 34 had no value as irrigated land after 1974 because of the confirmed presence of natural gas in those wells. Yet, the evidence showed that despite the presence of natural gas, the wells in Sections 32 and 34 had been appellees’ best-producing wells in terms of hours pumped, gallons per minute, and acres irrigated.
This court has often held that improvements on the land must be considered in determining its fair market value. For example, in Hoy v. Kansas Turnpike Authority, 184 Kan. 70, 334 P.2d 315 (1959), the court held it was error to allow a witness in a condemnation case to testify concerning the value of land where the witness failed to take into account the existence of a water well, trees, stone corral fences, and buildings. The court noted that improvements located upon land which is to be condemned are not to be valued separately but are a part of the real estate and must be considered in determining the value of the land taken. 184 Kan. at 74.
We hold the trial court committed reversible error in permitting Hagemann to testify that the land in Sections 29, 30, 31, 32, and 34 had value only as dry land after 1974.
Amoco next alleges the trial court erred in admitting the opinion testimony of appellees’ hydrologist, Dr. Henry Beck, because his testimony was based on speculation rather than fact.
Beck’s opinion was utilized by the appellees on two subjects: (1) Whether Amoco’s gas wells on Sections 29 and 33 continued to leak after repairs were made in 1968; and (2) whether Beck would advise a prospective purchaser that natural gas was present in the water in Sections 18, 19, and 20.
A trial court has wide discretion in allowing the testimony of expert witnesses and the use of such testimony goes to the weight of the evidence and not its admissibility. Kearney v. Kansas Public Service Co., 233 Kan. 492, Syl. ¶ 6, 665 P.2d 757 (1983).
We hold the trial court did not err in permitting Beck’s testimony with regard to the continued leak in Amoco’s gas wells in Sections 29 and 33, but the trial court erred in permitting Dr. Beck to testify about the presence of natural gas in the Cheyenne and Dakota aquifers in Sections 18, 19, and 20, absent proper foundation.
Next, we turn to the issue of whether the trial court improperly applied a strict liability standard to the facts of this case. The trial court instructed the jury as follows:
“When a company brings or produces something on its property which is harmless to others so long as it is confined, but which is harmful if it should escape, the company has a duty to prevent it from escaping and is legally responsible for the damages that ensue if the company does not succeed in confining it to its own property, regardless of the care exercised.”
Amoco argues the jury should have been instructed on the theory of negligence, rather than strict liability. However, the trial court specifically held that the appellees failed to produce any evidence of negligence per se on the part of Amoco. Appellees did not cross-appeal from that finding. The court stated:
“Let the record show that I declined to submit this case on the basis of negligence because I don’t think the plaintiffs produced any evidence of negligence, per se, on behalf of the defendants. Therefore, that issue does not apply.”
Thus, the issue presented for review is whether strict liability applies to the escape of natural gas from Amoco’s natural gas well into underground water formations and subsequently into appellees’ irrigation water.
Strict liability as it pertains to the instant case means liability imposed on an actor apart from either (1) an intent to interfere with a legally protected interest without a legal justification for doing so, or (2) a breach of a duty to exercise reasonable care (i.e., actionable negligence). Prosser and Keeton on Torts § 75, p. 534 (5th ed. 1984).
The doctrine of strict liability for abnormally dangerous activities is derived from the English case of Rylands v. Fletcher, L.R. 3 H.L. 330 (1868). There, water from the defendants’ reservoir broke through the disused and filled-up shaft of an abandoned coal mine and flooded the connecting mine belonging to the plaintiff. The defendants were held liable upon the theory the defendants had made a “non-natural use” of their land, which brought with it increased danger to others.
The Rylands v. Fletcher doctrine was initially adopted by this court in Helms v. Oil Co., 102 Kan. 164, 169 Pac. 208 (1917). In Helms, oil refuse and poisonous substances escaped in large quantities from the defendant’s oil refinery and flowed onto plaintiff s farm, causing injury to plaintiff s land and cows. The defendant argued that his business was a lawful one and he could not be liable to plaintiff in the absence of negligence. The Helms court disagreed, holding that the fact that a business is carried on lawfully and in accordance with ordinary methods does not relieve one from liability if the use is unreasonable and as such constitutes a nuisance. The court reasoned:
“Whether or not a use which in itself is lawful is a nuisance depends upon a number of circumstances — locality and surroundings, the number of people living there, the prior use, whether it is continual or occasional, and the extent of the nuisance and injury caused to the neighbor from the use. If the injury is slight and trivial and occurs in the development of the natural resources of the land it is not deemed to be unreasonable.” 102 Kan. at 168.
The court then concluded that the oil treated by the defendant at the refinery was obtained elsewhere, and its operations had no connection with the products of the land or the development of its natural resources.
Since Helms, this court has applied the Rylands v. Fletcher doctrine in numerous cases. See, e.g., Atkinson v. Herington Cattle Co., Inc., 200 Kan. 298, 436 P.2d 816 (1968) (feedlot drainage contained bacteria and nitrates which destroyed plaintiff s water supply and injured his cattle); Klassen v. Creamery Co., 160 Kan. 697, 165 P.2d 601 (1946) (discharge from dairy poisoned plaintiff s water supply and killed livestock); Berry v. Shell Petroleum Co., 140 Kan. 94, 33 P.2d 953 (1934) (salt water from defendant’s oil well seeped into plaintiff s water supply).
Amoco points out, however, that in cases in this court where a distributor or supplier of natural gas has been sued as a result of an explosion or fire resulting from the escape of natural gas, this court has always applied a negligence standard rather than a strict liability standard. See, e.g., Milwaukee Ins. Co. v. Gas Service Co., 185 Kan. 604, 347 P.2d 394 (1959) (plaintiff s home partially destroyed by natural gas explosion); Sternbock v. Consolidated Gas Utilities Corp., 151 Kan. 81, 98 P.2d 162 (1940) (natural gas caused fire which damaged plaintiff s personal property); Hashman v. Gas Co., 83 Kan. 328, 111 Pac. 468 (1910) (leaking gas line caused personal injury).
The Restatement (Second) of Torts sets forth the general rule regarding strict liability in tort for abnormally dangerous activities as follows:
“(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.
“(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.” Restatement (Second) of Torts § 519 (1976).
Section 520 of the Restatement (Second) sets out the following test for determining whether an activity is abnormally dangerous:
“In determining whether an activity is abnormally dangerous, the following factors are to be considered:
“(a) existence of a high degree of risk of some harm to the person, land or chattels of others;
“(b) likelihood that the harm that results from it will be great;
“(c) inability to eliminate the risk by the exercise of reasonable care;
“(d) extent to which the activity is not a matter of common usage;
“(e) inappropriateness of the activity to the place where it is carried on; and
“(f) extent to which its value to the community is outweighed by its dangerous attributes.”
We have never expressly applied the Restatement (Second) test. (But see Arnold Associates, Inc. v. City of Wichita, 5 Kan. App. 2d 301, 615 P.2d 814 [1980] rev. denied 229 Kan. 669 (1981), where the Court of Appeals adopted Sections 519 and 520 of the Restatement [Second] of Torts.) However, we hereby adopt Sections 519 and 520 of Restatement (Second) of Torts and utilize its provisions to aid in determining whether natural gas is an abnormally dangerous substance under the circumstances of this case.
Amoco contends that neither the operation of a natural gas well nor natural gas as a substance presents a high degree of risk or harm. Amoco points out that natural gas, unlike salt water, oil pollution, or chemical discharge, does not damage the fertility of the soil or growing crops; nor does it injure livestock or affect the quality of water. This is true because natural gas is in solution in the water until agitated and, upon reaching the surface, dissipates into the atmosphere. The presence of natural gas in the water-bearing aquifers has not resulted in an explosion, nor has it “polluted” nearby land or water, as is suggested in the appellees’ brief. Instead, the presence of natural gas has required the appellees to reduce the rate at which water is removed from the aquifer, thereby reducing the amount of water available for irrigation of appellees’ crops.
Amoco further notes that the drilling and operation of natural gas wells in the Hugoton Gas Field is a “matter of common usage” and is an appropriate activity for the place in which it is carried on — i.e., it does not constitute a “non-natural use” of the land. As this court has noted in previous cases, the Hugoton Gas Field is the largest known reservoir of natural gas in the world. Colorado Interstate Gas Co. v. State Corporation Comm., 192 Kan. 1, 4, 386 P.2d 266 (1963), cert. denied 379 U.S. 131 (1964). Thus, the drilling and operation of natural gas wells in this area is a common, accepted, and natural use of the land.
In Berry v. Shell Petroleum, 140 Kan. at 100-01, this court stated:
“There is ample proof in this case that the oil companies soon after the development of the field found themselves overburdened with salt water. This salt water had been harmless as long as it was left in the ground, but once it was raised to the surface of the earth it became a harmful agent. Salt water ruins drinking water and destroys vegetation. The problem of what to do with it has long been a perplexing one here in the Midcontinent field. Be that as it may, the company has brought something on its own property which was not naturally there, harmless to others so long as it is confined to its own property, but which it knows to be mischievous if it gets on its neighbors.” (Emphasis added.)
Unlike the salt water which escaped from the defendant’s well in Berry, natural gas is nota “harmful agent” once it is raised to the surface of the earth. Nor does natural gas ruin drinking water, destroy vegetation, or injure livestock. Moreover, natural gas is not a substance which is known to be “mischievous” if it gets on the property of others.
Thus, applying the Restatement (Second) of Torts test, we hold the drilling and operation of natural gas wells is not an abnormally dangerous activity in relation to the type of harm sustained by appellees. Further, such activity does not constitute a non-natural use of the land. Accordingly, we find the trial court improperly instructed the jury upon the theory of strict liability.
Let us now turn to the questions of negligence and nuisance. Amoco argues that since appellees did not cross-appeal, the finding that appellees failed to prove negligence is binding and may not be considered on appeal. Thus, Amoco argues if the court finds the jury was improperly instructed on a theory of strict liability, it must reverse the verdict and enter judgment for Amoco. Appellees, on the other hand, contend that the trial court’s finding with respect to negligence “does not rise to the level of a judicial finding under the circumstances here present.”
Appellees’ argument is meritorious. The district judge’s statement that he “declined to submit this case on the basis of negligence because [he didn’t] think the plaintiffs produced any evidence of negligence, per se, on behalf of the defendants,” was in response to objections to the instructions which had been given. As such, it was not a judgment requiring appellees to take issue by cross-appeal to preserve the question. The court had refused to instruct on negligence and was stating its reason. Where a party wins a jury verdict, it is unnecessary to cross-appeal every adverse trial ruling to preserve the issue in case of reversal and remand for a new trial.
Johnson v. American Cyanamid Co., 239 Kan. 279, 718 P.2d 1318 (1986), is distinguishable. There, the defendant appealed from a jury finding that it was 100% at fault for plaintiff s injuries. However, the defendant’s appeal was expressly limited to issues of plaintiff s judgment against it. Further, the plaintiff did not cross-appeal from the jury’s finding that another party (Dr. Branson) was 0% at fault. Thus, a majority of this court held we did not have jurisdiction to remand the case for retrial upon reversal of the judgment against American Cyanamid because all of the issues were fully litigated at trial and no party claimed error in the trial of said issues. 239 Kan. at 290-91. The issue in Johnson involved a limited appeal with the judgment against Dr. Branson specifically dismissed from the appeal. No cross-appeal was taken. Thus, the Branson judgment was specifically omitted from appellate review. This case has no similarities.
When we view the appellees’ evidence of a continuing gas leak in Amoco’s gas wells in the light most favorable to appellees, we find there are controverted issues of fact pertaining to breach of a duty by Amoco to appellees which should be determined by a jury. Thus, we hold this case should be remanded for a new trial on the issue of negligence. At trial, no evidence was introduced of the presence of natural gas in the aquifer on any of the Williams’ land except on Section 32, and the NW/4 of Section 34. However, since there was evidence the gas leak occurred in a well on Section 29, and moved through the deep aquifer from that to Sections 32 and 34, it follows circumstantially that the aquifer under Section 29 is charged with gas. Thus, we find the motion for directed verdict at the end of appellees’ case in chief should have been sustained as to all of the Williams’ land except Section 29, Section 32, and Section 34. Any new trial should be limited to the damages to the S/2 and the NE/4 of Section 29, Section 32, and the NW/4 of Section 34.
Appellees next argue the trial court should have given an instruction on nuisance. Though appellees make no argument for a new trial since they won below, it follows that they believe a new trial, if awarded, should encompass the theory of nuisance.
Prosser and Keeton on Torts § 87, pp. 622-23 (5th ed. 1984), discusses the requirements for recovery on a private nuisance theory:
“[T]he tort [private nuisance] is committed only if, and in the absence of an intrusion on land amounting to an intentional entry and a trespass, the following requirements are satisfied:
“(1) The defendant acted with the intent of interfering with the use and enjoyment of the land by those entitled to that use;
“(2) There was some interference with the use and enjoyment of the land of the kind intended, although the amount and extent of that interference may not have been anticipated or intended;
“(3) The interference that resulted and the physical harm, if any, from that interference proved to be substantial. It is this requirement and the next that is most important in distinguishing between trespassory-type invasions from those that are actionable on a nuisance theory. Any intentional and unprivileged entry on land is a trespass without a showing of damage, since those who own land have an exclusive right to its use; but an act that interferes with use but is not in itself a use is not actionable without damage. The substantial interference requirement is to satisfy the need for a showing that the land is reduced in value because of the defendant’s conduct;
“(4) The interference that came about under such circumstances was of such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land. This does not mean that the defendant’s conduct must be unreasonable. It only means that the interference must be unreasonable and this requires elaboration.”
There is no evidence in this case that Amoco intended for natural gas to leak from its wells into the aquifer and eventually into appellees’ irrigation water. Nor is there any evidence that Amoco intended this condition to continue once discovered. Accordingly, one of the elements necessary to recover on a nuisance theory was not established. We hold the trial court did not err in failing to instruct on nuisance.
The judgment of the trial court is reversed and this case is remanded for a new trial on the theory of negligence with damages pertaining to Sections 29, 32, and 34 of the appellees’ real estate. | [
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The opinion of the court was delivered by
Fatzer, J.:
These actions were to recover damages for injuries sustained in a car-truck collision. The principal question presented is whether service of summons was properly had upon defendant Woodrow Inman in Cherokee County, Kansas. It is conceded that all other defendants, W. E. Mitchell, Freeto Construction Company, a corporation, and Independent Construction Company, a corporation, hereafter referred to as Mitchell, Freeto, and Independent, were served with summons elsewhere. Plence, if service of summons upon Inman was not proper in Cherokee County the actions cannot be maintained there, but must necessarily be tried in Linn County, Kansas, where identical suits are pending and service of summons has been obtained upon all the defendants. Since both appeals present the identical question, they were ordered consolidated.
The plaintiffs commenced these actions on September 17, 1958, and alleged their injuries resulted from a collision on October 4, 1956, in Crawford County, between an automobile owned by Edward Stumfoll and driven by Dollie Stumfoll, his wife, and a dump truck driven by defendant Woodrow Inman. It was further alleged that Inman was the agent, servant, and employee of defendants Mitchell, Freeto and Independent. The original summons dated September 17, 1958, showed on the return, “September 27, 1958, I cannot find the following named defendant in my county: Woodrow Inman. s/William M. Crain, Sheriff of Cherokee County, Kansas. By P. L. Grant, Deputy Sheriff.”
An amended petition was filed on September 30, 1958.. On the same day an alias summons was issued and a return was made by the deputy sheriff that he served the summons on September 30, 1958, by leaving a certified copy thereof at Inman s “usual place of residence” (G. S. 1949, 60-2507) — “left with Mrs. Dardene, a sister," who resides at 124 West 13th Street in Baxter Springs.
Special appearances were made by all the defendants who filed separate motions to quash the pretended summons and the pretended service of summons upon the grounds of insufficiency of process and service of process and that the return on the pretended summons was void and of no effect conferring no jurisdiction upon the district court.
On June 30, 1960, a hearing was held on defendant Inman s and Mitchell’s motions to quash. The only evidence was by affidavits, and the motions were overruled. On a date not appearing in the record, those defendants filed separate motions to reconsider their motions to quash upon the grounds of accident and surprise, and because of newly discovered evidence.
On July 12, 1960, a hearing was had upon the motions to reconsider and upon Freeto’s and Independent’s motions to quash the pretended summons and pretended service of summons. Oral testimony and affidavits were presented by the defendants in support of the motions, and plaintiffs presented oral testimony against the motions. Arguments of counsel were made, and the court took the motions under advisement.
On August 5, 1960, the court, after considering the oral testimony and affidavits and briefs submitted by the parties, found that the motions to reconsider should be sustained and the previous order of June 30, 1960, should be set aside, and that all motions to quash should be sustained. Judgment was entered quashing the pretended praecipe of summons, the pretended summons, and the pretended service of summons upon Inman and upon the other non-resident defendants of Cherokee County. Hence, these appeals.
The judgment quashing the service of summons imports a general finding in favor of the defendants which determined every controverted question of fact in support of which evidence was introduced, and raises the presumption that all facts necessary to sustain and support the judgment were found (Dryden v. Rogers, 181 Kan. 154, 157, 309 P. 2d 409; Smith v. Smith, 186 Kan. 728, 730, 731, 352 P. 2d 1036). Consequently, the sole question presented is whether there was substantial evidence to support the district court’s finding that Inman was not served with summons by leaving a copy thereof at his “usual place of residence.” The evidence was conflicting and we deem it unnecessary to narrate all the testimony. In harmony with the well-established rule that the supreme court will not weigh conflicting evidence nor pass upon the credibility of witnesses in determining whether findings are supported by substantial evidence (Bank v. Amend, 107 Kan. 25, 190 P. 739; Brown v. Brown, 146 Kan. 7, 68 P. 2d 1105; Mann v. Staatz, 156 Kan. 275, 133 P. 2d 103; Rupp v. Rupp, 170 Kan. 651, 328 P. 2d 692; State Farm Mutual Automobile Ins. Co. v. Cromwell, 187 Kan. 573, 576, 358 P. 2d 761; Sutherland v. Sutherland, 187 Kan. 599, 603, 358 P. 2d 776; 1 Hatcher’s Kansas Digest, Appeal and Error, §§ 504, 505, 507 and 508), we review the record to ascertain whether there was evidence which supports or tends to support the finding that Inman’s residence was not at his sister’s home at T24 West 13th Street, Baxter Springs. In our review, a consideration or recital of the contradictory evidence would not aid in correctly determining that question (Martin v. Hunter, 179 Kan. 578, 584, 297 P. 2d 153; Huebert v. Sappio, 186 Kan. 740, 742, 352 P. 2d 939).
Pertinent parts of the testimony are summarized: Inman was a single man 47 years of age, and both he and his sister, Mrs. Dardene, testified that he did not reside at her home in Baxter Springs on September 30, 1958. Inman first learned these actions had been commenced in Cherokee County when he visited Mrs. Dardene over a weekend in 1958 and she gave him the summons. He testified that on September 30, 1958, he was living in an apartment in Arkansas City where he was employed and that he had resided there for a year and a half to two years; that he had no personal effects at Mrs. Dardene’s home on September 30, 1958, nor had he had any personal property at her place for two years prior, however, he kept some clothing at a brother’s place about four miles east of Baxter Springs; that in 1958 he moved from Arkansas City to King-man where he rented an apartment, had his own dishes and cooking utensils, and was employed there for about one year; that he then moved to Ulysses, and from there went to Woodson County where he worked on the Toronto Dam. After completing his work there, he went to his brother’s home east of Baxter Springs where he stayed two weeks and from there he went to Kansas City, where he now resides. Inman further testified he owned no property nor did he vote in Cherokee County in 1957 or 1958 nor had he voted there since; that between jobs he visited with his two sisters who lived in Baxter Springs and with his two brothers who lived near the city, but he never knew when he would be at one place or another, “so he visited around with all of them”; that he was assessed and paid personal property taxes in Kingman County in 1958, and that he did not help maintain Mrs. Dardene’s home in any way, did not pay any rent nor contribute to his sister’s support.
Mrs. Dardene testified that she lived at 124 West 13th Street, Baxter Springs, and on September 30, 1958, she found the summons for Inman fastened to the screen door at her home; that Inman did not help keep up her house in any way, paid no rent nor made any contribution to her support; that he had no clothing or personal property there; that he had been gone from her home a week or two and she gave him the summons “when he first came back,” but she did not remember the date.' She further testified that he had other brothers and sisters in and near Baxter Springs and that between jobs he visited around with all of them.
Counsel for the plaintiffs testified that he corresponded with Inman in 1947 and 1948 at the time of his divorce; that letters were addressed to him at Galena and Baxter Springs; that some replies were received from Galena and some from Baxter Springs, and at the time the divorce was granted Inman lived at Route 2, Galena; that at a later date Inman lived with another relative out in the country and later moved to Baxter Springs. The county cleric of Cherokee County testified by affidavit that Inman had not been assessed for personal property in Cherokee County in 1958.
It can hardly be argued there was no substantial evidence to support the district court’s finding that Inman did not have an established residence with Mrs. Dardene on September 30, 1958. Plaintiffs cite Irvin v. Irvin, 182 Kan. 563, 322 P. 2d 794, and Arnette v. Arnette, 162 Kan. 677, 178 P. 2d 1019, on the question of when a change of residence is legally effective, and contend the uncontroverted evidence showed that Inman had established and intended to maintain his permanent domicile and residence at Baxter Springs, and, therefore, residence service of summons on him at 124 West 13th Street, was valid legal service and the motions to quash should have been overruled. We do not agree. The service was a nullity for at least two reasons. In the first place, the court never found that 124 West 13th Street, Baxter Springs, was Inman’s established residence which would presume to continue until it was clearly shown to have been abandoned. The evidence is clear that Inman had no residence, usual or otherwise, at Mrs. Dardene’s home in Baxter Springs at any time. Further, it is clear he did not adopt it as the place he usually occupied, nor was it his place of habitation in any sense of the word. His infrequent presence there was temporary and for visitation purposes only, and was not his settled abode where he intended to remain permanently even for a time, or to which he expected to return to live when absent. In light of the statute (G. S. 1949, 77-201, Twenty-fourth) and the evidence, his established residence was in his apartment in Arkansas City on September 30, 1958, when service of summons was attempted to be made upon him at 124 West 13th Street, Baxter Springs. In the second place, while there was testimony that Inman considered Cherokee County his home, and that he always called Baxter Springs his home and went there to pick up his personal mail, evidence of those facts was not proof that 124 West 13th Street, Baxter Springs, was his usual place of residence. The statute does not contemplate an entire community as synonymous with “usual place of residence.” Testimony that counsel corresponded with Inman through general delivery, Baxter Springs, or testimony to the effect that Inman referred to Baxter Springs as his home when he was living elsewhere and working on various jobs is not proof that his usual place of residence was at Mrs. Dardene’s home at 124 West 13th Street, Baxter Springs. The authorities relied upon are sound and we adhere to them, but from the plaintiffs’ standpoint they are not helpful since the district court did not find that 124 West 13th Street, Baxter Springs was ever Inman’s residence, and there is ample evidence to support the finding that it was not.
While every person must have a domicile somewhere, and when the jurisdiction of a court is under consideration, residence as defined in the statute (G. S. 1949, 77-201, Twenty-third) is substantially the equivalent of domicile (Ford, Adm'x, v. Peck, 116 Kan. 74, 225 P. 1054; Arnette v. Arnette, supra; Irvin v. Irvin, supra), we hold there was substantial evidence to support the district court’s finding that Inman’s residence was not at 124 West 13th Street, Baxter Springs. The district court did not err in sustaining the defendants’ motions to quash the pretended service of summons (O’Neil v. Eppler, 90 Kan. 314, 133 P. 705). This conclusion requires an affirmance of the judgment of the district court.
It is so ordered. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action to determine the ownership of $23,666.64 in a checking account in the Havensville State Bank. The plaintiff (appellee), Orman L. Miller, executor of the estate of Fern Henery, initiated this action asserting that the account was an asset of the estate of the deceased and should be distributed according to the general terms of the will and codicil. It is contended by the defendant (appellant), J. C. Higgins, that he had full ownership of this account by virtue of the right of survivorship in joint tenancy. He urged that the joint tenancy could be supported under contract or gift theories. The bank was made a defendant so that it could be directed to pay the proceeds of the account to the rightful owner after a judicial determination.
On the issues joined between the parties the trial court heard the evidence of the respective parties and made findings of fact and conclusions of law. From a judgment in favor of plaintiff, defendant J. C. Higgins appeals.
There is little dispute about the pertinent facts. The trial court found that Fern Henery and W. A. Henery, her husband, prior to the latter’s death, maintained a checking account in the Havensville State Bank. On January 24, 1952, after the death of her husband, Fern Henery, a part-time employee of the aforementioned bank, had the name of her brother J. C. Higgins inserted upon the ledger sheet of this account in place of her husband’s name. The account then read, “Fern Henery or J. C. Higgins and to the survivor of them upon the death of either.” As a matter of practice the bank, at that time, did not require signature cards and issued pass books only upon request. They considered the ledger primary evidence of ownership. However, the bank, at the request of Fern, did issue a pass book which was identified only in her name. All deposits and withdrawals were made by her and in her name until ten days immediately preceding her death. The bank president as well as the only full-time employee, Miss McKee, were present when Fern requested the latter to change the account in 1952.
The court further found that Fern made substantial deposits to the W. A. and Fern Henery account and that both she and her husband checked against the account. In 1952, when the account was changed to Fern Henery and J. C. Higgins, all deposits were made by Fern Henery, the deposit slips showing her name only, and the account book had only Fern Henery’s name appearing on the title page. All the checks on the account since 1952 were drawn by Fern Henery except four checks written about ten days prior to her death. These four checks were written on Fern’s printed personalized check forms and were signed Fern Henery by J. C. Higgins, and two checks were drawn and signed in the same manner after decedent’s death. These six checks were written during Fern’s last illness and were to pay her hospital and doctor bills.
The court also found that Fern had no other account in the bank from 1952 until her death; that defendant Higgins never actually knew that his name was on the account until about ten days before Ferns death; that Higgins never discussed the joint account with the officers of the bank or with anyone connected with the bank prior to the death of Fern, nor did the bank at any time have a signature card or any other agreement with Higgins; that subsequent to 1952 there was no further discussion of the account between the deceased and any of the bank officials.
The court further found that while the evidence was clear as to the title the deceased desired to have entered on the ledger sheet January 24, 1952, there was no evidence other than the naked wording as to the intention of the deceased as to the ownership of the account or of the rights of defendant Higgins therein. While the president and Miss McKee testified that they considered the account to be joint, they would not have cashed a sizeable check drawn by defendant Higgins without first consulting Fern, and that it was clear from the evidence that there was no express agreement between the deceased and the defendant bank as to the ownership of the account except that which, if any, might be implied from the title of the account itself. It was also clear that there was never any express agreement between the defendant Higgins and the deceased or defendant Higgins and the defendant bank as to the ownership of the account and the rights of defendant Higgins therein.
The trial court was unable to find sufficient evidence to support the naked wording of tibe ledger and stated:
“While the evidence in this case cannot be said to be either clear or satisfactory, after a careful consideration of all the facts and circumstances, from which the intention of the deceased, or a contract or agreement between all of the parties concerned, could be implied, we cannot find sufficient evidence upon which to base a conclusion that the defendant should be adjudged the owner of the account in question upon any of the theories advanced by him.”
The court concluded that there was insufficient evidence to sustain either a gift or a contract in joint tenancy with right of survivor-ship in Higgins, and that the money was an asset of the estate, and entered judgment accordingly.
G. S. 1949, 58-501 reads in pertinent part:
“Real or personal property granted or devised to two or more persons including a grant or devise to a husband and wife shall create in them a tenancy in common with respect to such property unless the language used in such grant or devise makes it clear that a joint tenancy was intended to be created: ...”
Under the express provision of the statute a joint tenancy may be created in personal as well as in real property. (In re Estate of Biege, 183 Kan. 352, 327 P. 2d 872, and cases therein cited.) It is unnecessary to historically reiterate the law of joint tenancy, but it is important to emphasize again how “clear” the intent of the parties must be in finding that joint tenancy was intended.
In Spark v. Brown, 167 Kan. 159, 205 P. 2d 938, we said that when one desires to create a joint tenancy with the right of survivorship language must be used to make that intention clear, otherwise it will not be created. (See also Malone v. Sullivan, 136 Kan. 193, 14 P. 2d 647; Riggs v. Snell, 186 Kan. 355, 350 P. 2d 54; rehearing denied, 186 Kan. 725, 352 P. 2d 1056; In re Estate of Swingle, 178 Kan. 529, 289 P. 2d 778.)
In an article entitled “Jointly Owned Property and Its Disadvantages,” written by Mr. James D. Dye of the Wichita Bar, and appearing in The Journal of the Bar Association of Kansas (21 J. B. K. 351, 363 [May, 1953, No. 4]), after reviewing several of our cases Mr. Dye stated, “The issues involved in the Spark and Malone cases do not point up any particular disadvantage in joint ownership but they do emphasize the care and attention required in establishing such ownership where it is in fact intended and desired by the parties.” (p. 363.)
Under the provisions of G. S. 1949, 9-1205, bank deposits may be made in the names of two or more persons, including minors, payable to either or any of them, or payable to either or any of the survivors or the sole survivor, and such deposits or any part thereof or any interest thereon, may be paid to or on order of any of said persons whether the other or others be living or not; and the receipt, order, or acquittance of the person so paid shall be valid and sufficient release and discharge to the bank for any payment so made. Both Malone v. Sullivan, supra, and Spark v. Brown, supra, emphasize the fact that the mentioned provisions of the statute were enacted solely for the protection of the bank paying under such agreement. In the Malone case it was stated, “This statute, however, does not attempt to define the right of a surviving joint depositor as against third parties who may claim an interest in the fund.” (p. 196.) (See also Mr. Dye’s article 21 J. B. K. 351, 363). In the Spark case we held that this part of the statute (G. S. 1949, 9-1205) was designed for the protection of the bank in the making of payments. It has nothing to do with the ownership of the fund as between the two parties.
Defendant Higgins conceded that the aforementioned statute dealing with joint accounts is for the protection of the bank and is of no value in the determination of ownership of such account. The record shows that Fern not only had a pass book issued to herself alone but that she also used her own printed personalized checks, and that during the period from 1952 to the time of her death she continued to treat the account as her sole property, depositing and withdrawing large sums of money in her own name and for her own business transactions. She had no other checking account.
No useful purpose would be gained in prolonging this opinion as the law on joint tenancy with right of survivorship has been thoroughly discussed in our previous decisions, and we are of the opinion that this case is controlled by Spark v. Brown, supra. Within the boundary of the strong language of G. S. 1949, 58-501, which is not here challenged, the court simply failed to find evidence sufficient to amount to “clear” intent to create a joint tenancy.
Regardless of the theory upon which the joint tenancy is sought to be established it ultimately will be resolved on the clarity with which the intent of the grantor is expressed. The intent of the grantor is basic and is derived clearly from the facts and circumstances of each case. In the instant case there does not seem to be any one thing other than the naked words which would import the creation of joint tenancy, and the meaning of those words is completely rebutted by the facts and circumstances evidencing intent, both at the inception of the account and at such times subsequent thereto as are pertinent. We have carefully examined' the entire record and find no reason to say that the findings of the trial court were contrary to the evidence. In fact, we are of the opinion that it is clear that the evidence in this case was insufficient to establish a joint tenancy with right of survivorship on any theory asserted by defendant Higgins.
The findings and judgment of the trial court being sustained by sufficient competent evidence, the judgment must be affirmed.
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The opinion of the court was delivered by
Parker, C. J.:
This is an appeal from an order overruling a demurrer to an amended petition.
The action, for injunctive relief, was commenced in the district court of Shawnee County in December, 1957, by the filing of a petition. Following motions, relating to rulings not here involved, the plaintiff on March 18, 1958, filed his amended petition. The amended petition sets forth sufficient facts to give readers of this opinion a proper understanding of what this case is about. For that reason and because of the disposition to be made of the appeal we feel it is necessary at the outset to quote the allegations of that pleading in tobo. Omitting caption and signatures it reads:
“Comes now the plaintiff and states that:
“He is a resident of Johnson County, Kansas, with his true place of residence and correct post office address at 517 East Loula, Olathe, Kansas.
“The defendant (The State Highway Commission) is a body corporate, created and existing under the laws of the state of Kansas, with its principal place of business in Topeka, Kansas.
“Prior to September 30, 1949, plaintiff was the owner in fee simple of the following described real estate consisting of approximately 66 acres situated in Johnson County, Kansas, to wit:
“‘All of the North One-Half (K) of the Northeast Quarter (K) of Section 30-13-24 lying East of the Kansas City, Ft. Scott and Memphis Railroad right-of-way/
“On September 30, 1949 the defendant highway commission instituted a condemnation proceeding in the District Court of Johnson County, Kansas in •which the west 9.10 acres of the above described real estate were taken by defendant for highway purposes. The property so taken is described as follows:
(Here follows description of the tract which is located in Johnson County, Kansas.)
“Plaintiff is now and has been for many years last past the owner in fee simple of all the property first above described, less the 9.10 acres taken by the defendant as aforesaid, and none of said land is located within tire corporate limits of a city or town.
“Said condemnation proceedings are fully set out in case No. 18188 in the District Court of Johnson County, Kansas, and the files thereof are hereby made a part hereof by reference in order to avoid voluminous pleading. A true and correct copy of tire petition filed by the defendant in said case and the order of the court appointing appraisers is attached hereto and made a part hereof.
“Immediately following said acquisition, defendant constructed a highway upon said land which is known and designated as U. S. Highway No. 50S. Plaintiff’s land abuts said highway for a distance of more than 1450 feet. Plaintiff’s land was not adjacent to U. S. Highway 50S prior to September 30, 1949, although plaintiff had access thereto by a county section road which ran in front of his land and into said highway.
“Since the construction of said Highway 50S, plaintiff has had direct access thereto at all times from any point on his land which abuts said highway as aforesaid. Plaintiff has also had direct access by means of a section line road abutting his property.
“Defendant now improperly and unlawfully refuses to permit plaintiff such direct access upon said highway and plaintiff is now required to employ a circuitous route and to travel a considerable distance in order to reach points designated by defendant from time to time for access upon said highway. This has and will continue to cause plaintiff great and irreparable harm, damage and inconvenience which is not suffered by the general public and for which plaintiff has no adequate remedy at law.
“Plaintiff has a common law right of access onto said highway at any point thereon where his land abuts said highway, subject to compliance with reasonable and lawful regulations pertaining to entrances as promulgated by defendant. Plaintiff’s right of access onto and off of said highway is a valuable property right which cannot be taken from him by defendant except by eminent domain and the payment of just compensation.
“Defendant has not acquired or attempted to acquire plaintiff’s right of access by gift, devise, purchase or condemnation and has paid no compensation therefor.
“At the time of said condemnation in 1949 defendant was not authorized by law to take tire access rights of plaintiff and the legislature did not vest defendant with such power and authority until it enacted tire Controlled Access in 1953. Said act is 1953 Supp., 68-1901, et seq., which is still in full force and effect.
“The allegations contained in paragraphs 5, 5a, 5b and 5c of defendant’s 1949 petition are of record in Johnson County, Kansas, and appear upon the abstract of the plaintiff, and constitute a cloud upon plaintiff’s title to his land above described.
“As a result of the acts of defendant there has been and will continue to be a taking of property and property rights from this plaintiff by defendant without due process of law; and this plaintiff has suffered and will continue to suffer special and peculiar damages, for which he has no adequate remedy at law; and plaintiff is entitled to relief in equity and an order should be entered by this court permanently enjoining the defendant from preventing or obstructing this plaintiff from free and direct access to said U. S, Highway No. 50S until such time as the said property rights owned by this plaintiff are acquired by said defendant as provided by law.
“Wherefore, plaintiff prays that an injunction be issued by this court perpetually enjoining the defendant from taking, obstructing, limiting, controlling or interfering with plaintiff’s right of access from his land onto U. S. Highway No. 50S until such time as said property right is acquired by defendant as provided by law; that an order issue forthwith ordering and directing said defendant to appear and show cause why said injunction should not be issued; and that the plaintiff recover his costs herein and have all other proper relief.”
In passing it is important to note that, aside from the allegations heretofore quoted from the amended petition, the exhibits attached to such pleading were limited and restricted to copies of the petition and the order of the court appointing appraisers in the eminent domain proceeding, therein referred to as Case No. 18188 in the District Court of Johnson County.
What followed the filing of the amended petition and the filing of the instant demurrer, although such matters are not subject to appellate review, are important from an informative standpoint and may be stated thus:
Shortly after the amended petition (hereinafter referred to as the petition) was filed, the defendant demurred thereto on the ground it did not state facts sufficient to constitute a cause of action. Two months later this demurrer was overruled. Thereupon defendant’s request for additional time in which to plead and file its answer to the petition was granted. Subsequently an answer was filed which set out in full and complete detail the defenses on which the defendant relied. Plaintiff on September 4, 1958, filed his reply to the answer. Some sixteen months after joinder of issues as indicated, to be exact on January 20, 1960, defendant filed a motion for judgment on the pleadings which was overruled.
We come now to the particular events giving rise to this appeal. These, we believe, should be related in accord with views expressed by defendant’s own counsel in their abstract and brief, where it is said:
“Because it was felt that many of the issues in the instant case were determined by the case of Riddle v. State Highway Commission, 184 Kan. 603, decided by this Court on May 16, 1959, the Commission obtained leave of Court and consent of counsel for the landowner to file a motion to withdraw its answer and refile a demurrer to the amended petition on March 16, 1960.
“The demurrer was on the grounds the Court had no jurisdiction of the subject of the action; that all matters complained of had been decided by the District Court of Johnson County in 1957 and no appeal had been taken from such judgment or could now be taken, and that the petition did not state sufficient facts to constitute a cause of action by the owner against the commission.
“This demurrer was likewise overruled by the Court on March 16, 1960.
“Thereupon the State Highway Commission perfected an appeal on April 19, 1960, to this Court from the order overruling its demurrer to the amended petition.”
Before any consideration can be given to questions raised and argued pertaining to this appeal it becomes necessary to direct attention to the record presented and relied on by the parties in support of their respective positions regarding the propriety of the trial court’s ruling on the demurrer.
Wholly ignoring the provisions of our statute (G. S. 1949, 60-705), that the defendant may demur to the petition only when it appears from the face of that pleading that one of the defects therein specified exists, and the requirements of G. S. 1949, 60-707, that when any of such defects do not appear upon the face of the petition any objection to such pleading must be taken by answer, defendant’s abstract, and for that matter the plaintiff’s counter abstract, are replete with references to extraneous facts and other matters which do not appear upon the face of the petition or in the exhibits attached thereto.
With respect to the subject just mentioned it is to be noted defendant’s abstract (1) contains a quotation in full of what purports to be the publication notice in Case No. 18188 of Johnson County, Kansas, and makes references to the nature and extent of the award made by the appraisers in that case; (2) refers to a purported appeal, from the condemnation award in Case No. 18188, which appears to have been filed in 1957 and docketed as Case No. 18316 in the District Court of Johnson County; (3) sets forth at great length evidence adduced in Case No. 18316, including aerial photographs of plaintiff’s land and the surrounding territory as it existed at the time of the trial of that case; and (4) gives its version of the force and effect of the judgment rendered in Case No. 18316, as well as subsequent activities of the parties in connection therewith.
Touching the same subject it may be stated that, not to be outdone with respect to the injection of extraneous matters into the appeal, plaintiff’s counter abstract is devoted exclusively to a quotation in full of the Instructions given by the court in Case No. 18316 of the District Court of Johnson County and an expression of his views as to claims made in defendant’s abstract respecting the status of the judgment rendered in such action.
Having directed attention to the state of the record presented it may now be said that all of defendant’s claims of error regarding the overruling of its demurrer to the petition, as well as claims made by the plaintiff in support of such ruling, are interlarded with lengthy arguments respecting the force and effect to be given the facts and other matters to which we have heretofore referred as extraneous to the appellate issues involved because they do not appear upon the face of the petition or on the face of the exhibits attached thereto.
Indeed in the face of the record presented, and after careful examination and consideration of all contentions advanced by the defendant in its brief and on oral argument in which facts not appearing on the face of the petition are presented and relied on as sustaining its position, we are convinced that to dispose of the questions raised by this appeal, respecting the propriety of the trial court’s ruling on the demurrer, would require this court to reach out and make additional facts a part of the petition.
In this jurisdiction the rule, universal in its application, is that a demurrer will reach only facts appearing on the face of the petition demurred to and that in ruling on the demurrer a court is not justified in reaching out and making additional facts a part of the pleading against which the demurrer is lodged.
Another rule, equally well-established and just as frequently applied, is that if additional facts are necessary for the court to consider in passing upon a question of law and are not contained in the petition, a defendant must answer and allege the pertinent and necessary facts which he believes constitute a defense to that pleading.
For just a few of our decisions where the foregoing rules have been stated, considered and applied see Schraeder v. Sisters of St. Joseph, 187 Kan. 509, 357 P. 2d 854; Board of Education v. Thompson, 185 Kan. 620, 622, 347 P. 2d 369; Robinson v. Muller, 181 Kan. 150, 153, 309 P. 2d 651; Anderson Cattle Co. v. Kansas Turnpike Authority, 180 Kan. 749, 752, 308 P. 2d 172; Ables v. City of Topeka, 180 Kan. 204, 206, 303 P. 2d 177; Force v. Bates, 177 Kan. 438, 441, 280 P. 2d 584; Wahl v. Walsh, 177 Kan. 176, 178, 277 P. 2d 623; Whitaker v. Douglas, 177 Kan. 154, 157, 277 P. 2d 641; Southard v. Mutual Benefit Health & Accident Ass’n, 177 Kan. 26, 28, 276 P. 2d 299; Lorey v. Cox, 175 Kan. 66, 67, 259 P. 2d 194; Lee v. Beuttel, 170 Kan. 54, 56, 223 P. 2d 692.
Here, as we have seen, the defendant relies on facts other than those appearing on the face of the petition and the exhibits attached thereto as sustaining and establishing the claims advanced by it to the effect the demurrer should have been sustained on all grounds therein set forth. Therefore, since, under the rules to which we have heretofore referred, those facts are not entitled to consideration in ruling on the demurrer we are constrained to refrain from passing on the force and effect to be given them until, and unless, they are pleaded by defendant in an answer, as constituting a defense to the petition on questions of law raised by the demurrer.
What has been heretofore stated and held is sufficient to dispose of the involved phase of this lawsuit. However, in conclusion it should perhaps be stated that, when reviewed in the light of the record presented, we have no difficulty in concluding that defendant has failed to make it affirmatively appear that the trial court erred in overruling the demurrer to the petition. Therefore the instant appeal is affirmed on that basis and the case is remanded to the district court with directions to permit the defendant to join issues on the merits of the cause by an appropriate answer and then proceed with the trial of the case.
It is so ordered. | [
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The opinion of the court was delivered by
Jackson, J.:
The ultimate question in this appeal is whether Doris I. Paulson, deceased, owned at the time of her death a remainder interest in some 560 acres of land in Butler county. The answer to that question depends upon the construction of the will of her grandfather Peder Paulson, who died in 1927, and whose will was made in 1914 and a codicil appended thereto in 1916. The question arose in the probate court of Butler county when William I. Paul-son and W. Carl Paulson, father and brother respectively of Doris, filed separate answers to the petition for final settlement of Katherine Breen, executrix and sole legatee and devisee under the will of Doris I. Paulson, deceased. Peder Paulson divided his property among his various children after providing for his wife Martha. It would appear that Martha was survived by her husband, and the third paragraph of the will of Peder Paulson devised the land in question in the following manner:
“Third: — I give, devise and bequeath' to my son, William I. Paulson and Alpha Paulson, his wife, and to tire survivor of them, during the term of their natural lives, the use, rents, issues and profits of the (description of real estate) during which period they are to pay all taxes levied on said real estate, and malee all necessary repairs thereon, and shall not encumber, sell or convey their interest therein or any part thereof, and any and all mortgages, liens or conveyances that should be made by them, or either of them, shall be absolutely void and of no effect, and after the death of the said William I. Paulson and Alpha Paulson, his wife, and the survivor of them I give and devise said real estate in this paragraph described to the children born of the bodies of the said William Paulson and Alpha Paulson, or either of them, provided however, that in case any of such child or children so born should be dead at the time of the death of the survivor of the said William I. Paiilson and Alpha Paulson, leaving children surviving them, then and in that event such children shall take the share that their deceased parent would have taken if such deceased parent had outlived the said William Paulson and Alpha Paulson.”
William, the father, and Carl, the brother, in their separate answers to the petition for final settlement contended that Doris I. Paulson had been devised only a contingent remainder as a child of William and that since she predeceased William and died without children, she took no interest in the land in question.
At the hearing on the petition for final settlement, the probate court sustained the contentions of the answers to the petition and entered its order holding that the estate of Doris did not own any interest in the land in question despite the fact the land had been included in the inventory of the estate. Thereupon, Katherine Breen, as executrix, filed an appeal to the district court. After a proper hearing in the district court, that court entered its order together with a carefully written memorandum opinion holding that Doris I. Paulson held a vested remainder under the will of her grandfather to the land in question. Shortly after the decision in the district court, William, the father of Doris died, and Carl, the brother, who is also executor of the father’s estate has appealed to this court.
Perhaps one more fact should be noted at this point before turning to the arguments of the parties to this appeal. By 1916, the production of oil and gas had begun in Butler county. Peder Paulson being fully advised in the matter on the 28th day of April, 1916, as noted above, made a codicil to his will of 1914, providing that in each of the gifts of life estates to his children, all of the life tenants in the will should have absolute power to give mineral leases. The provisions for each life tenancy read alike. The provision relating to the land in question in this appeal read in part as follows:
“. . . to my son William I. Paulson and Alpha Paulson, his wife, and to the survivor of them, I give and- devise unto said William I. Paulson and Alpha Paulson, and the survivor of them, the right and privilege to make, execute and deliver to whom they may see fit and on such terms as they may determine oil, gas and mineral leases on said real estate or any part thereof as fully and binding on said real estate and the remaindermen, vested or contingent, as I could do in my lifetime or such remaindermen could when they become fully vested with said real estate upon the perfect happening of all of the contingencies provided for in said Will.”
Both parties to this appeal raise certain questions about jurisdiction over the parties to the appeal. We will say only that we feel this court has and the lower courts had sufficient jurisdiction in this matter and will not extend the opinion upon that issue.
The appellant relies heavily upon the rule of construction in accord with the testator’s intent and contends that the questions in the appeal should be decided by the intent of the testator. One of the first quotations made from an authority in his brief is from Commercial National Bank v. Martin, 185 Kan. 116, 340 P. 2d 899, as follows:
“It is the well-established rule in this jurisdiction that the intention of the testator is to be determined from the whole will — from the four comers of the instrument when all provisions of the will are considered without deleting any part thereof (citing cases).” .
Appellant also cites and quotes from In re Estate of Freshour, 185 Kan. 434, 438, 345 P. 2d 689, to the same effect.
But in arguing the matter of the intention of the testator, the appellant is inclined to stray outside the language of the testator contained in the will. Notice that it is the intention expressed by the testator in the will which is controlling. We come then to the construction of the language of the will, and turning again to Commercial National Bank v. Martin, supra, at page 121 we find another well-known rule stated as follows:
“However, this court has held that no remainder will be construed to be contingent which may, consistently with the words used and the intention expressed, be deemed vested. (Bunting v. Speek, 41 Kan. 424, 21 Pac. 288; In re Estate of Woods, supra, 280, 281.) The law favors the early vesting of testamentary gifts, and unless a contrary intention clearly appears in a testamentary instrument, an interest will be regarded as vested, rather than contingent (citing cases).”
This rule in favor of the early vesting of estates runs through the whole of Anglo-American law. The law has always favored alienaability of land.
So let us turn to the language of the will in the present case. The first clear provision of the instrument is the devise of a life estate to William I. Paulson and Alpha Paulson, his wife, and to the survivor of them. Then we find the following language: “And after the death of (both of the life tenants) I give and devise said real estate in this paragraph described to the children born of the bodies of (the life tenants) or either of them.”
We would say that this provision standing alone is clear and provided for vested remainders as soon as children were born of William and Alpha or either of them. The mere fact that a class of devisees may be enlarged by later events, such as the birth of other children who likewise become members of the class, does not prevent the devise from vesting in interest. The rule says that the remainder is vested in the then members of the class subject to the possibility that it will open and take in other members of the class. One of our cases first definitely adhering to this’ rule is McLean v. Stanley, 134 Kan. 234, at 239, 5 P. 2d 839, and attention is directed to authorities cited.
But returning to the language of the will, we find the so-called proviso, which reads:
“. . . provided however, that in case any of such child or children so bom should be dead at the time of the death of the survivor of the said William I. Paulson and Alpha Paulson, leaving children surviving them, then and in that event such children shall take the share that their deceased parent would have taken if such deceased parent had outlived the said William I. Paulson and Alpha Paulson.”
Appellant strongly urges that these last provisions make it quite plain that the testator intended the children of William and Alpha had to survive both their parents before they received a vested interest in the devise of the third paragraph of the will. But, the testator did not say so, and he easily could have done so.
The fact is that this kind of a provision following a gift of a remainder to children of a life tenant is not uncommon. It is true that the case of McLean v. Stanley, supra, did not concern such a provision, but this court in other cases has dealt with these provisions.
We believe the cases of this court and the courts of a majority of other states show that these provisos do not make the remainder contingent, but that the remainder to the child is vested as to interest in the estate, and that if the child should die before the death of the life tenant, his title and interest may be divested if he leaves children of his own. Both these contingencies must occur. This rule is always conditioned upon the fact that the testator in no direct manner expressed the intention that only children surviving the life tenant should take an interest in the estate.
In the case of Faris v. Nickel, 152 Kan. 652, 107 P. 2d 721, we find a construction of the following devise in the will of one Jacob Nickel:
“Second: I give, devise and bequeath all of my estate, of every kind and nature whatsoever, to my wife, Katrina Nickel, to have and to hold for and during the term of her natural life, with remainder at her death to my children, in fee simple, forever, the descendents of any deceased child or children to take the parents’ share.”
The testator died leaving his widow and nine children. One of the nine children died later during the lifetime of the widow leaving no children but survived by his widow. In the Faris case, this court held that the remainder to the deceased child was a vested remainder and that the son’s widow was entitled to his share. The opinion in this case should be read carefully as a treatise on real property by an eminent authority.
In the case of Ghormley v. Kleeden, 155 Kan. 319, 124 P. 2d 467, a testator died leaving land to his widow for life with remainder to his six named children, and further providing that if any of the six children should die during the widow’s lifetime, the deceased child’s share should go to his children and in the absence of children over to others. This court held that the title to the remainder was vested in the then living six children, subject to being divested if any of them died before the widow.
In the older case of Hammond v. Martin, 100 Kan. 285, 164 Pac. 171, the syllabus reads as follows:
“Where a will devises a life interest to the testator’s wife, with a remainder in equal shares to their five children, a provision that, if any of the children should die before the inheritance passed to them, the issue, if any, of such deceased child should take his share, even if construed to relate to the situation arising from the death of a child after that of the testator and before that of the mother, does not prevent the spouse of a deceased child, who died after the father and before the mother, from inheriting the share of such child.”
Attention is further directed to the cases of Epperson v. Bennett, 161 Kan. 298, 167 P. 2d 606, and In re Estate of Works, 168 Kan. 539, 213 P. 2d 998, which we believe to be in accord with the cases cited above. Attention should also be directed to the decisions of other courts involving similar testamentary provisions to those in the case at bar. Many of the cases from other courts are to be found in the annotations in 109 ALR 5, and 47 ALR 2d 901.
We believe the case of Matter of Krooss, 302 N. Y. 424, 99 N. E. 2d 222, 47 ALR 2d 894, which precedes the annotation in ALR 2d just cited, is especially worthy of note in the case at bar. In the Krooss case, testator gave to his widow a life estate with power to invade the principal; and what remained after her death, he then gave to his son and daughter, naming them. The will also contained an explicit provision that if either child died before the widow, leaving descendants, such descendants should take the deceased child’s share. The daughter predeceased the widow of the testator and left no descendants.
In this case, which would seem almost exactly like the case at bar, the Court of Appeals of New York held that the daughter’s husband was entitled to her share of the estate. That court said:
“The will under consideration is simple in language and simple in plan. The testator gave his widow a life estate and a power to use the principal if it proved necessary for her maintenance and support. What remained after her death he gave ‘absolutely and forever’ in equal shares to Iris two children, Florence and John. Had the will stopped at that point, there would be no question that the remainders were vested. And, since that is so, additional language will not be read as qualifying or cutting down the estate unless that language is as clear and decisive as that which created the vested remainder. See, e. g., Goodwin v. Coddington, 154 NY 283, 286, 48 NE 729; Byrnes v. Stilwell, 103 NY 453, 460, 9 NE 241. The further language used by the testator in this case demonstrates, not that he was rendering the vesting of the estates in his children conditional upon survival of the life beneficiary, but that he was willing to have those estates divested only upon the combined occurrences of two further events. He explicitly provided, if either of his children died before his wife, ‘leaving descendants,’ then ‘such descendants shall take the share the parent would have taken if then living.’ If the words used mean what they say, then, divestiture of the remainder estates depended upon the happening of two plainly expressed and stipulated conditions: (1) the child, Florence or John, must die before the life beneficiary, and (2) the child so dying must leave descendants. Only if both of those conditions came to pass was the remainder — by apt and unequivocal language already vested in Florence and John — to be divested and bestowed instead upon the descendants of him or her who might have died.”
We have reviewed all the cases cited in the brief of appellant. Most of them can be readily distinguished in that they provided for a definite survivorship until the death of the life tenant. Further, almost all of these cases are distinguished in the opinions in McLean v. Stanley, and Faris v. Nickel or the other cases cited supra.
The appellee calls attention to the wording of the codicil of Peder Paulsons will. It is suggested that die codicil refers to the remainders of the grandchildren as vested and to those of the great-grandchildren as being contingent. It is also suggested that the scrivener of the will was a learned lawyer. This is an interesting possibility but alone would not be entitled to a great deal of weight. Perhaps the language was indeed intentional, and if so we must assume Peder Paulson fully understood that his granddaughter Doris had a vested remainder subject to being divested and followed by a contingent remainder to her possible children. Since she had no children surviving her, her interest in the property was never divested (Matter of Krooss, supra).
This court believes that the district court was correct in its decision of the case at bar, and therefore, the decision must be affirmed. It is so ordered. | [
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|
The opinion of the court was delivered by
Parker, C. J.:
This is a joint appeal by two defendants who were jointly charged, tried, convicted and sentenced for four separate crimes of murder in the first degree (G. S. 1949, 21-401).
The events giving rise to the criminal prosecution in question, the proceedings had therein prior to and düring the trial, the result of the trial, and post trial matters leading up to perfection of the instant appeal, all of which are incontrovertible, are essential to a proper understanding of the appellate issues involved. Therefore those matters, as established by the record, will be detailed at the outset.
At approximately 1 o’clock a. m. on November 15, 1959, Herbert Wesley Clutter, a prominent resident of Finney County, Kansas, his wife Bonnie Mae Clutter, his daughter Nancy Mae Clutter, sixteen years of age and his son Kenyon Neal Clutter, fourteen years of age, were brutally murdered in their farm home near Holcomb, Kansas, which is approximately seven miles west of Garden City, the county seat.
On December 30, 1959, defendants Richard Eugene Hickock and Perry Edward Smith were arrested at Las Vegas, Nevada. Subsequently, and on January 6, 1960, they were returned to Garden City by officers of the Kansas Bureau of Investigation where they had been charged jointly with four counts of first degree murder by a complaint filed by the County Attorney of Finney County.
The day after their return the defendants were brought before the judge of the county court of Finney County, where they were afforded an opportunity to request and have a preliminary hearing on the charges set out in the warrant issued on the complaint. At that time both defendants waived preliminary hearing and thereupon were bound over to the district court of Finney County for trial.
On January 8, 1960, both defendants were brought before the district court where Harrison Smith and A. M. Fleming, both experienced, qualified, competent and respected members of the Kansas Bar, were appointed to represent defendants Hickock and Smith, respectively. At that time the clerk of the district court delivered certified copies of the information, which had been filed against the defendants on that day and charged them jointly with four counts of first degree murder, to each defendant and to their attorneys.
On January 29,1960, the defendants both filed motions requesting the court to appoint a commission to examine the defendants to determine whether their mental status was such they could legally be tried (G. S. 1949, 62-1531) and to determine their sanity at the time of the commission of the alleged crime (G. S. 1949, 62-1532). After argument both motions were sustained insofar as they requested the appointment of a commission, under the provisions' of 62-1531, supra, to determine whether the defendants were insane, imbeciles or idiots, and unable to comprehend their positions and aid in their defense.
Following action as indicated the court appointed John O. Austin, M. D., R. J. Maxfield, M. D., and Gust H. Nelson, M. D., all of whom are conceded to be reputable, qualified, experienced and respected practicing physicians and surgeons of Finney County, to act as a commission to examine each defendant. Thereafter, in conformity with G. S. 1949, 62-1531, this commission examined the defendants and filed separate reports with the court stating, in substance, that after having examined the defendants it found each defendant was not insane, an idiot or an imbecile, and that each such defendant was able to comprehend his position and to make his defense.
On February 9, 1960, the defendants accompanied by their respective attorneys were brought before the court and, upon arraignment, each defendant chose to stand mute, whereupon the court entered pleas of not guilty on behalf of each defendant on each of such counts. Thereupon, it having been previously indicated that separate trials were desired, the court announced both cases would be set for trial by jury in the district court of Finney County on March 22, 1960, at 10 a. m., and that the court would proceed, at the request of the state, with the trial of Perry Edward Smith first.
On February 25, 1960, the state filed a motion asking permission to endorse the names of additional witnesses upon the information. The record discloses no objection to this motion arid it was sustained.
On March 1, 1960, each defendant filed a motion to quash the jury panel on grounds of irregularities in the selection of such panel. This motion was heard and sustained by the court on March 2. Thereafter, and on the same date, it proceeded to name a new jury panel under G. S. 1949, 43-128.
On March 4, 1960, the state filed its motion for permission to cor rect names incorrectly listed in the information. On presentation of this motion on March 9 counsel for each of the defendants announced they had no legal objection to the granting of such motion, whereupon it was sustained.
On March 14, 1960, Hickock filed a motion for continuance upon the grounds that Walter S. Hickock, his father, was ill and could not testify. Upon a hearing, and after pointing out it appeared the condition of the witness in question was such his testimony could be taken by deposition or that he might be able to personally appear at the trial, the court denied this motion.
Early in the proceeding Hickock had demanded a separate trial. Later, and on March 9, 1960, after the endorsement of additional witnesses on the information by the state, including both defendants, he announced in open court that, after consultation with his counsel, it was his desire to be tried with his co-defendant Smith. The court then inquired of Smith if that was his desire also and received an affirmative answer. Thereupon the court announced in substance that in conformity with the desires of the defendants there would be a joint trial, which would commence on March 22, 1960.
On the date last above indicated the case was called for trial. Each defendant and the state announced ready for trial. The court then announced that the trial was apt to be a protracted one and that it deemed it advisable to select two alternate jurors, in addition to a jury of twelve men. No objection being made to this suggestion jurors were interrogated until twelve men had been selected as satisfactory to the parties to try the cause, without either the defendants or tire state having exhausted the peremptory challenges, allowed by statute (G. S. 1949, 62-1402 and 62-1403). The court then asked the state and each defendant if they desired to waive further peremptory challenges and received an affirmative answer from all such parties. Thereupon the jury of twelve men, then in the jury box, was duly empaneled and sworn to try the cause. Thereafter the alternate jurors were examined and two were selected by the parties as satisfactory. The court then inquired if the parties desired to waive their peremptory challenges to the alternate jurors and, having received affirmative answers, the two jurors so selected were sworn to act as alternate jurors in the event their services were required.
Following the empaneling of the jury, the state proceeded to make its opening statement. Each defendant then elected to re serve the right to make an opening statement until after the state had presented its evidence. The state then adduced its evidence and rested. Thereafter defendants’ counsel made their opening statements and evidence was adduced on behalf of each such defendant. Neither defendant testified in his own behalf.
At the close of all evidence the court gave the jury full and complete written instructions, to which no objections were made, and, after closing arguments, directed it to proceed, in charge of a sworn bailiff, to the jury room to consider its verdicts. In due course the jury returned separate verdicts finding each defendant guilty of murder in the first degree on 'all of the four counts charged in the information and, under the provisions of G. S. 1949, 21-403, fixed the punishment for each defendant on each count at death.
Following the return of the verdicts each defendant filed a motion for a new trial. No affidavits or testimony were offered in support of these motions and they were heard and overruled. Thereafter the trial court approved the verdicts and each defendant was sentenced to be hanged. Thereupon the defendants jointly perfected the instant appeal and this court, pursuant to their joint application, issued an order staying execution of their respective sentences (G. S. 1949, 62-2414) pending its determination.
With what has been heretofore related all that is required to round out the factual picture, necessary to insure a full and complete understanding of the issues raised on appeal, is a highly summarized statement of the evidence adduced by the state, all of which may be said to have been wholly uncontroverted and undisputed by any other evidence of record to the contrary. Omitting many of their gruesome details and cumulative features, the facts established by such evidence may be stated thus:
While serving time in the Kansas State Penitentiary on another sentence defendant Hickock celled with an inmate who had worked for Herbert Wesley Clutter and got the impression from such cellmate that Clutter was a wealthy wheat farmer, who kept a safe in his home, located near Holcomb, Kansas, containing large sums of money. Hickock devised a plan whereby he and a friend would, upon his being discharged from the penitentiary, go to Holcomb, tie the Clutter family up, rob the safe and leave no witnesses to the crime.
Sometime after being released from the penitentiary, Hickock wrote to defendant Smith, then in Nevada, telling him he had a 'score.” On November 12, 1959, Smith came to Kansas and called Hickock who was working in a body shop at Olathe. The two men did some work on Hickock’s 1949 Chevrolet automobile. Then on Saturday afternoon, November 14, they left Hickock’s home at Edgerton, Kansas, for Holcomb. They told Hickock’s parents they were going to Fort Scott to see Smith’s sister, who actually lived in California.
Enroute to the Clutter farm the two men stopped and purchased nylon rope, two inch adhesive tape, a small pocket knife, and some rubber gloves.
About midnight the defendants arrived in Garden City where they stopped at a filling station to buy gas. They then drove to Holcomb and up a lane leading to the Clutter residence, which was about one-half mile west of the south edge of that town. After reaching that point they noticed a light in the tenant house, to the southwest of the main residence, and started to leave. However, the light in the tenant house went out before they were half way out of the drive, so they turned around and went back, parking their car in the drive on the west side of the Clutter home.
Upon leaving Edgerton, Hickock had placed his twelve gauge shotgun and his eight inch blade hunting knife in the car, together with a box of shells and a hunting vest.
Soon after they parked in the drive defendants entered the Clutter residence through the unlocked west door of that building, taking the shotgun and hunting knife with them. They then got Mr. Clutter out of his bed in the downstairs bedroom, took him into a room used for an office, and searched for the safe. Failing to find one they interrogated him about its location. Upon being told there was no safe, they obtained some "money from Mr. Clutter’s billfold. Then they took him upstairs where Mrs. Clutter, Nancy and Kenyon were sleeping. After arousing the three persons mentioned, they put all the members of the family in the second floor bathroom and then searched the house for the safe and more money. They found some money but no safe. Mr. Clutter was then taken to the basement and tied hand and foot on a mattress carton in the furnace room. Kenyon was then taken to the furnace room and tied to a soil pipe on the north wall near his father. Mrs. Clutter was then tied hand and foot to her bed and Nancy was tied hand and foot in her bed. Then the defendants decided to tape the family. Mrs. Clutter was taped first but Nancy was by-passed. Kenyon was then cut loose from the soil pipe and tied to a couch in the southwest corner of the recreation room, south of the furnace room. Then the defendants taped Kenyon and his father.
Then, desiring to leave no witnesses, Mr. Clutter’s throat was cut, and, as a so-called act of mercy, he was shot in the head. Next Kenyon was killed by a blast from the shotgun at close range. The defendants then went from the basement to the second floor where Nancy and her mother, in that order, were shot with the shotgun and killed. In each instance, the defendants picked up the empty shell casing as it was' ejected from the shotgun after having fired its lethal load.
Upon leaving the scene, the defendants took a portable transistor radio belonging to Kenyon and a pair of binoculars. All told they had been at the Clutter residence approximately one hour.
The defendants then drove back to Garden City where they turned north on U. S. 83. At the county line they observed the lights of the Century Refinery and, in order to avoid what they thought was Scott City, turned east on the county line road. After going a short distance, they stopped, got out of the car, and while Hickock cleaned the victims’ blood from the shotgun with the water drained from the car radiator, Smith dug a hole with the hunting knife and buried the four expended cartridges and the unused rope and tape left over from tying and taping the members of the Clutter family.
The defendants then drove east toward Edgerton. Along the way they stopped at a roadside park and burned some of their bloodstained clothing, including the gloves they had worn at the Clutter home. They reached Olathe about 11 a. m. Sunday morning, November 15, 1959, where Smith registered at a hotel under an assumed name and Hickock went on to his parent’s home at Edgerton.
Several days later the defendants left the Kansas City area and drove directly to Mexico City where they sold Hickock’s car and the radio and binoculars, the two latter items to a traffic policeman. They then went to California; back to Iowa; back to Kansas City, and then to Las Vegas, Nevada, where, on December 30, 1959, they were arrested. Subsequently they were brought back to Garden City where they had been charged with murdering the four members of the Clutter family.
On dates not here important but which may be stated to have been between the date on which the members of the Clutter family were killed and the date of the commencement of the trial, officers of the Kansas Rureau of Investigation and members of the Finney County Sheriff’s force recovered Hickock’s hunting knife and the twelve gauge shotgun, used in the killing, at the home of Hickock’s parents in Edgerton; the radio and binoculars from the officer to whom they had been sold in Mexico City; and the articles consisting of tape, unused nylon rope, and the four expended shotgun cartridges, which the defendants had buried on the county line road north of Garden City. These items, it is to be noted, were all recovered as the result of information furnished the Kansas officers by the defendants at Las Vegas, Nevada, or while they were being returned to Kansas.
In leaving the state’s evidence it should be noted that, except for the first and last paragraphs of what has been set forth in the foregoing evidentiary statement, the major portion of the facts heretofore referred to as established by such evidence came from the lips of witnesses, who, in the main, based their testimony with respect thereto upon voluntary statements and admissions made to them by the defendants themselves, to which evidence the defendants made no objection when it was offered and admitted as a part of the state’s case in chief. Indeed, it may be stated that in this appeal no contention is made that any of the evidence, relating to statements and admissions made by the defendants with respect to the facts previously detailed, was erroneously admitted.
Counsel for the defendants have been diligent in advancing claims of error. From the record presented it appears that a number of such claims were not brought to the attention of the trial court on the hearing of their motions for a new trial and others are not included in their specifications of error. Nevertheless, in accord with its fixed policy in appeals involving capital punishment (see State v. Andrews, 187 Kan. 458, 459, 357 P. 2d 739; State v. Lammers, 171 Kan. 668, 672, 237 P. 2d 410), this court will examine all claims advanced by counsel with meticulous care for the purpose of determining whether they disclose any possible error prejudicial to the rights of the defendants.
At the outset it may be stated that claims of error made in this case can be divided into three classes, (1) those common to both defendants; (2) those relied on solely by Smith; and (3) those relied on solely by Hickock, and will be considered in that order.
Defendants’ first complaint is that the trial court erred in refusing to appoint a psychiatrist to the commission which examined them under G. S. 1949, 62-1531. Without laboring this point it may be said it has been determined by this court adversely to defendants’ position in well considered decisions to which we adhere. See State v. Lammers, supra, where, with direct reference to the statute in question, it is held:
“. . . the statute does not require that any other than doctors of ordinary medicine be on the commission; . . .” (Sybil.)
And in the opinion (pp. 671 to 677, inch), after an exhaustive review of our decisions and statutes, said:
“. . . The provision in G. S. 1949, 62-1531, that the inquiry may be made by a commission does not require that the members of the commission should have any qualification other than that of a qualified doctor, nor is there any constitutional provision for such.” (p. 677.)
For another decision, citing the Lammers case and quoting therefrom with approval, see State v. Martin, 175 Kan. 373, 390, 265 P. 2d 297.
In connection with the above claim it is suggested that, because defendants’ motions for the appointment of a commission included a request the court appoint a commission under the provisions of G. S. 1949, 62-1532, to determine their sanity at the time of the commission of the alleged crimes, the trial court should have appointed a commission for that purpose under the provisions of such statute. This suggestion lacks merit and cannot be upheld. Defendants wholly misconstrue the force and effect to be given the provisions of 62-1532, supra. This court has repeatedly held that, in Kansas, the question of the sanity of an accused, at the time of the alleged commission of the offense, is to-be determined by the jury, upon the evidence introduced bearing upon such issue, and not by a commission. (See State v. Andrews, 458, 463, supra; State v. McBride, 170 Kan. 377, 381, 226 P. 2d 246; State v. Eye, 161 Kan. 69 [Syl. ¶ 4], 166 P. 2d 572.)
It is urged that defendants were temporarily insane at the time of the commission of the crime in question and for that reason should not have been found guilty by the jury. We find no evidence of record supporting this claim and the utmost that can be said of defendants’ contentions with respect thereto is that a psychiatrist, testifying in their behalf during the trial, stated that in his opinion Hickock knew right from wrong at the time of the commission of the crimes and that he had no opinion on that subject as far as Smith was concerned. In any event, the very most that can be said for defendants’ position on this point is that the question of their sanity at the time of the commission of the crimes was determined by the jury upon the evidence introduced bearing upon such issue. Therefore, under the decisions to which we have last above referred, and see, also, State v. Mendzlewski, 180 Kan. 11, 13, 14, 299 P. 2d 598, this claim affords no sound basis for reversal of the judgments.
Defendants contend that the trial court erred in overruling Hickock’s motion, of March 14, 1960, for a continuance, heretofore mentioned. This claim is premised upon the proposition that during the presentation of such motion the trial court’s attention was called to the fact that by happenstance the farm sale of the property of the Clutter estate had been advertised and was to be held on March 21, 1960, the day before the trial was to commence, and it was suggested that fact might deprive defendants of a fair trial. After hearing arguments on that question, and the specific ground on which the motion for continuance was initially based, i. e., inability of Hickock’s father to appear as a witness at the trial because of illness, the trial court overruled the motion. No claim of error with respect to this ruling was made by the defendants on the hearing of their motions for a new trial and, aside from a suggestion the overruling thereof might have been prejudicial to them for the reasons suggested at the hearing on the motions, no showing is here made that they were prejudiced by that action. Under the foregoing circumstances there are at least two reasons why this phase of the trial court’s ruling did not constitute reversible error. First, it is a long standing rule of this court that, in a criminal action, alleged trial errors not heard and presented on the hearing of a motion for a new trial are unavailing on appeal. (See, e. g., State v. Haught, 180 Kan. 96, 100, 299 P. 2d 573, and cases there cited.) And second, it has been held many times, and is well-established in this jurisdiction, that the matter of a continuance in a criminal prosecution is largely within the discretion of the trial court and that its ruling thereon will not be disturbed unless it has been made to appear that such discretion has been abused to the prejudice of substantial rights of a defendant. (State v. Smith, 173 Kan. 807, 812, 252 P. 2d 917; State v. Morrow, 179 Kan. 63, 292 P. 2d 1094, and decisions there cited; State v. Stubbs, 186 Kan. 266, 271, 349 P. 2d 936, and decisions there cited.)
Hickock’s separate claim of error, to the effect the motion should have been sustained on the ground on which it was initially based, is wholly fallacious and cannot be upheld. The record discloses his father appeared at the trial and testified as a witness in his behalf. In that situation this phase of his claim of error with respect to the ruling on the motion falls squarely within the rule of the decisions last cited.
Defendants also contend that they did not receive a fair trial due to the “most expeditious way” in which they were brought to trial (1) because of the manner in which pre and post trial motions were heard and (2) that their counsel did not have adequate time in which to prepare their defense. The answer to point (1) of the contention is to be found in the record which discloses that no question was ever raised, or complaint made, by the defendants throughout the entire case with respect to the manner in which pre and post trial motions were presented to, and heard by, the trial court. The answer to point (2) of the same contention appears in our statute (G. S. 1949, 62-1301) and our decisions construing its force and effect. See, e. g., State v. Rangel, 169 Kan. 194, 217 P. 2d 1063, where it is said:
“. . . The defendant was in custody at that term, at which the information was filed, and under the statutes the court was required to try the case unless cause for continuance was shown (State v. Asbell, 57 Kan. 398, 46 Pac. 770; State v. Lund, 49 Kan. 580, 31 Pac. 146; In re Garner, 134 Kan. 410, 5 P. 2d 821).” (p.197.)
It should perhaps be added that the rule announced in the Rangel case is particularly applicable where — as here — defendants in criminal cases are confined in jail without bond and the record makes it clearly appear no request for a continuance, because of lack of adequate time in which to prepare a defense, was ever presented to the trial court prior to the commencement of the trial of the case.
Another contention is that the trial court erred in not granting defendants a change of venue notwithstanding, as is conceded, they made no application for such relief. We do not agree. This contention has been passed upon and determined by our court in decisions, to which we adhere. See In re Hedrick Appeals, 155 Kan. 165, 123 P. 2d 806, where it is held:
“The only statutes of our state authorizing a change of venue in a criminal action, on account of prejudice of inhabitants of a county, or judicial district, and providing the procedure therefor, are G. S. 1935, 62-1318 to 62-1321, inclusive.” (Syl. f 3.)
And in the opinion said:
“These statutes [referring to 62-1318 to 62-1321, inch, supra] present a definite outline of procedure to be followed in determining whether or not the minds of the inhabitants of a county or district are so prejudiced against de fendant that a fair trial cannot be had. It must be done upon the ‘application of the defendant.’ (62-1320.) The petition for the change ‘shall set forth the facts upon which the application is made.’ Notice must be given to the county attorney, who may resist the application, and the hearing is to be before the court upon affidavit to determine the facts alleged in the application. (62-1321.) That is the only way provided by statute for determining whether the minds of the inhabitants of the county are so prejudiced against defendant that he cannot have a fair trial. It has been the method followed throughout the history of our state, as the following list of cases, not intended to be complete, shows: (citing decisions).” (p. 174.)
Finally the defendants contend that due to the magnitude of the crimes and the sensational aspects of the brutal slayings of which they were found guilty, and the intense coverage of the crimes and the case by the press, radio and television, they did not receive a fair and impartial trial in Finney County. These claims, it should be pointed out, were not presented to, or heard by, the trial court on the hearing of the motions for a new trial, and are made for the first time in this court on the basis of contentions which, when boiled down, are based on bare assertions by the defendants’ counsel that, under such circumstances, it was impossible for defendants to have a fair trial in the county wherein the crimes were committed. With the record, as indicated, this claim could be disposed of on the basis of the universal rule announced in State v. Haught, supra. See, also, State v. Stubbs, 266, 271, supra, where it was held that a similar claim, not presented to the court below, could not be considered on appeal. Even so, we are not adverse to discussing the merits of this question briefly.
No reasonable person can seriously contend that, standing alone, the magnitude of crimes of murder and the sensational aspects of brutal slayings in connection therewith deprive the defendant and/or defendants in a criminal action of a fair and impartial trial. We therefore turn, without further comment, to the second phase of this claim.
Conceding that the crimes in question received extended and intense local, state and nation-wide coverage by all news media known to this modern era, it does not follow as a matter of law that defendants were thereby deprived of a fair and impartial trial. That question, as we understand it, must be determined by the particular facts of record. With that in mind, we have obtained and carefully reviewed the transcript of the record. Resort thereto fails to disclose defendants, at any time prior to or during the trial, made any claim or showing whatsoever that they were being deprived of a fair and impartial trial by the news media now complained of. Nor did they make any such claim or showing in connection with a hearing on their motions for a new trial. Indeed, as we have previously pointed out, their claims to that effect in this court are based on bare assertions unsupported by evidence of record. Moreover, the record discloses the defendants made no application for a change of venue to another county, as authorized by G. S. 1949, 62-1318, or to another judicial district, as permitted by G. S. 1949, 62-1319, on account of inability to receive a fair and impartial trial by reason of prejudice resulting from the news media in question, or for any other reason. The same source reveals they did not move for a mistrial because of prejudice resulting to them during the trial for any reason. In addition, since the record makes it affirmatively appear that defendants waived some of their peremptory challenges, at the time the jury was selected, we must assume that, in the selection of the jury, empaneled and sworn to try the cause, they were able to obtain fair and impartial jurors who were not biased or prejudiced by reason of the news media complained of. Under these circumstances, others previously referred to in the opinion, and others gleaned from a careful reading of the entire transcript of the record, we are convinced, and therefore hold, defendants’ position on the claim now under consideration lacks merit and cannot be upheld.
Turning to contentions relied on solely by Smith it is pointed out that the court instructed the jury to “bring in a verdict that speaks the truth” and that one inflicting the death penalty does not conform with the court’s instructions “to speak the truth.” Arguments advanced on this contention are almost frivolous and require little attention. Their import, as we understand them, is twofold. First, it is claimed that after finding defendants guilty of murder in the first degree the jury had no right to determine whether the death penalty or life imprisonment should be inflicted, as prescribed by statute (G. S. 1949, 21-403). Following State v. Christensen, 166 Kan. 152 (Syl. ¶ 1), 199 P. 2d 475, we hold that it was not only its right but its duty to do so. Second, defendants attempt to challenge the wisdom of the death penalty. That question has also been determined. See State v. Andrews, supra, where it is said:
“Another facet of the jurisdiction of this court will be noted before turning to the merits of this appeal. In a similar case, State v. Miller, 165 Kan. 228, 194 P. 2d 498, the late Mr. Chief Justice Harvey said:
“ ‘We are neither authorized nor have we any disposition to debate the question of the wisdom of capital punishment. The legislature determines the policy of the state in that regard and enacts statutes which the courts are bound to follow. The trial court followed the statute in this case.’ (p. 239).” (p. 459.)
See, also, State v. Wilson, 188 Kan. 67, 68, 360 P. 2d 1092.
In two other contentions Smith complains of the court’s action in sustaining objections to evidence offered by him during the trial of the case. We have examined the rulings and concluded the trial court’s action in sustaining the objections were proper. However, contentions with respect thereto should not be labored. The evidence rejected was not brought into the record on the hearing of a motion for a new trial. In that situation such rulings are not subject to appellate review. See State v. Beam, 175 Kan. 814, 267 P. 2d 509, which holds:
“Following The State v. Ball, [¶] Kan. 428, 204 Pac. 701, and other decisions mentioned in the opinion, the rule, that errors assigned respecting the exclusion of evidence not brought into the record on the hearing of a motion for new trial in compliance with the provisions of the criminal and civil codes (G. S. 1949, 62-1414 and 60-3001 to 3004) are not subject to appellate review, is recognized, adhered to and applied.” (Syl. f 4.)
In two contentions Hickoclc contends the court erred in sustaining the state’s objection to the testimony of two witnesses, naming them. It is neither necessary nor required that we labor these contentions. Hickock also failed to bring this excluded evidence into the record on the hearing of his motion for a new trial, hence under the rule in State v. Beam, supra, to which we adhere, such rulings are not subject to appellate review.
We have now carefully considered and discussed in seriation every reasonable question advanced by defendants in their briefs as grounds for reversal of the judgments rendered against them and found that not one of them warrants or permits a reversal of such judgments. Moreover, and after reading the entire transcript of the record, as well as the abstracts of the respective parties, we fail to find any “plain error,” whether specified or not, which would justify or require their reversal. Therefore based on what has been heretofore stated and held it is our duty and obligation to affirm the judgments rendered by the trial court against each of the defendants in conformity with the verdict of the jury.
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The opinion of the court was delivered by
Jackson, J.:
This appeal involves a workmen s compensation proceedings in which the district court allowed the claimant an award. The parties were under the act, and the court found that claimant was injured in the course of his employment while moving a barrel on November 27, 1957; that he told his foreman that he had injured his back, and then went to see the company doctor but did not find him. The court found that the employer had notice of the injury within ten days as required by G. S. 1949, 44-520. The principal question in this appeal by the employer is concerning the time for filing the claim for compensation and is well set out in the trial court’s conclusions of law reading as follows:
“Conclusions of Law
“G. S. 1957 Supp., 44-520a, provides that written claim for compensation must be made within 180 days after the accident where no compensation is paid as in this case.
“G. S. Supp., 44-557, requires the employer to make a report to the Commission of any accident to any employee which occurs in the course of his employment, of which tlie employer or his foreman has knowledge, within seven days after the receipt of such knowledge: provided, that such accidental injuries are sufficient toholhj or partially to incapacitate the person injured from labor or service for more than the remainder of the day, shift or turn on which such accidental injury was sustained. Since the accidental injury here involved is alleged to have occurred on November 27, 1957 and the written claim for compensation was not filed until July 14, 1958, more than 180 days had elapsed after the alleged accident, and the claim is barred unless by reason of the provisions of G. S. 1957 Supp., 44-557, the time for filing the claim was extended. The Court construes the words ‘for more than the remainder of the day shift or turn . . .’ to mean (1) the remainder of the day or shift on which the alleged accidental injury was sustained, and (2) an additional period of time. In other words, a condition precedent to 44-557 being applicable in any case is a showing that the workman was wholly or partially incapacitated for at least the remainder of the day shift or turn on which the accidental injury is alleged to have been sustained. There is no such showing here. However, in 1957, a second proviso was added by the legislature, which must be considered here. That proviso reads: ‘That no limitation of time in this act provided shall begin to run unless a report of the accident as herein-before provided has been filed at the office of the Kansas Workmen’s Commissioner if the injured workman shall have given his notice of injury as provided by 44-520, G. S. 1949.’
“The Court concludes that the 1957 proviso is all inclusive and renders the first proviso above noted in the same section of the Statutes as re-enacted, ineffective, and, therefore, of no controlling effect herein. The Court’s authority for this is the case of Wilson v. Santa Fe Trail Transportation Co., 185 Kan. 725, (347 P. 2d 235) where at pages 735-736 the Court speaks as follows:
‘It is definitely stated in 44-557 that if the employer or his foreman has knowledge of an accident occurring to any employee in the course of his employment, notice must be given as provided by the statute.’
“And, therefore, the Court holds that failure to give such notice, although the workman is not wholly or partially incapacitated for the period noted in said statute, extends the limitation of time within which to commence a proceeding. The Court, therefore, holds that the claimant had one year following the accident in which to file his claim, and, therefore, his claim must be held to have been filed in time.”
We would agree with the trial court that the case of Wilson v. Santa Fe Trail Transportation Co., cited by the court, largely controls this case. In the Wilson case, Mr. Wilson like Mr. Almendarez in this case “suffered out” the rest of the day’s work. It is true that the claimant in the Wilson case did not return to work following that day’s work for some time, but he did not notify the employer that he was claiming compensation until long after he had tried to return to work. Here the claimant did not return to work the next day because it was Thanksgiving. Claimant was off work because of his back for three days in December although he merely reported to his employer that he was sick. He was off again in January, 1958, and became totally disabled on February 12, 1958. In February he reported to the employer that it was his back which was troubling him although he did not give any indication that he was claiming compensation. He testified that he did not like to tell the employer about his back because “if I ever told them about my back I was afraid they’d let me go.”
The claimant’s fear of discharge would not appear to have been unfounded since, after claimant had been operated on by his own doctor for a protruded disc and spinal fusion which caused some permanent disability, claimant was discharged by his employer. Thereafter, as shown by the trial court’s conclusions, claimant filed his claim for workmen’s compensation on July 14, 1958.
The reason for the extension of the time for filing of the claim as provided in G. S. 1959 Supp. 44-557 is that if the employer gives notice to the workmen’s compensation commissioner of an accident, the commissioner will then mail material to the employee advising him of his rights under the workmen’s compensation act. If no notice to the commission is given by the employer, the employee may never learn of his rights under the act.
Under our decisions in Wilson v. Santa Fe Trail Transportation Co., supra, and Kronig v. Nolan Motor Co., 186 Kan. 534, 351 P. 2d 1, we are unable to discover any reversible error in the trial court’s conclusions of law set out above.
The respondent does say that there was no substantial, competent evidence to justify the trial court’s finding that claimant suffered an accidental injury. But the claimant so testified, and his testimony is not denied. The trial court found in accord with claimant’s testimony, and this court has no jurisdiction over questions of fact, see Cross v. Wichita Compressed Steel Co., 187 Kan. 344, p. 346, 356 P. 2d 804, and authorities cited.
Respondent also argues that the trial court erred in allowing items of medical expense in its award. We shall simply refer to what was said in the Cross case supra, beginning with the last paragraph of the opinion on page 348.
There appears to be no need to extend this matter further. The judgment of the district court is affirmed. It is hereby so ordered. | [
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The opinion o£ the court was delivered by
Schroeder, J.:
This is a damage action for personal injuries sustained by the plaintiff who was a passenger in a taxicab involved in an intersection collision. From a verdict and judgment for the plaintiff in the sum of $6,000, an appeal has been perfected specifying numerous trial errors.
The plaintiff (appellee) was a passenger in the front seat of a taxicab operated by the Greyhound Cab Co., Inc., (defendant-appellant) and driven by Roy D. Cooper (defendant-appellant). Following a collision of the taxicab with an automobile driven by the defendant, Donald Ray Gribbin, at an intersection of Chrysler and Funston Roads on December 2, 1957, the plaintiff was removed to a hospital. He was off work for six weeks and under the treatment of a physician from the time of his injury to September 15, 1959.
A stop sign controlled traffic entering the intersection on Funston Road. The cab was traveling east at the intersection on Funston Road. There was no stop sign to control traffic on Chrysler Road at the intersection in question. Gribbin was traveling south on Chrysler Road approaching the intersection from the north.
The collision occurred in the southbound lane of Chrysler Road and carried both vehicles over the center line of Chrysler Road, the record indicating that the cab darted into the path of the Gribbin vehicle, thus raising the question of emergency and creating an immediate hazard when the cab entered the intersection.
The case was first tried to a jury in October, 1959, and resulted in a verdict for the plaintiff in the sum of $10,589. The trial court granted both parties a new trial, as a result of which a verdict in the sum of $6,000 was returned against the appellants only, absolving Gribbin of any liability.
In view of the contentions of counsel for the parties, and because of the confusing nature of the record presented by the abstract, it has been necessary to resort to the files of the trial court and the transcript of the record. The transcript discloses the omission of the testimony of two witnesses, one being a physician. Therefore, questions relating to the sufficiency of the evidence cannot be reviewed.
After careful examination of the record as reflected by the files, the transcript, and the abstract, the court has concluded that to narrate in more detail the factual situation presented by the evidence, and systematically answer the various contentions of the appellants, would serve no useful purpose to either the bench and bar or to the parties. All contentions have been noted and considered, but, as applied to the record, are held to be without merit.
On appellate review error in the court below is never presumed. The burden is cast upon the appellant to affirmatively establish that error has been committed. (See, Hatcher’s Kansas Digest, Revised Edition, Appeal and Error, § 408.)
We find nothing in the record before us which makes it appear the trial court erred.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Davis, C.J.:
The question we must resolve today is whether a defendant convicted of a felony drug offense qualifying for a certified drug abuse treatment program under K.S.A. 21-4729 maybe sentenced to prison under K.S.A. 21-4603d(f)(l), which authorizes a departure prison sentence where the underlying offense was committed while the defendant is on felony parole. We hold that the provisions of K.S.A. 21-4729 requiring a defendant to be committed to a certified drug abuse treatment program are mandatory.
Facts
In January 2007, Randy Andelt pleaded no contest in Marshall County, Kansas, to possession of methamphetamine. In February 2007, Andelt pleaded no contest in Washington County, Kansas, to possession of methamphetamine in an unrelated case. Both offenses were violations of K.S.A. 65-4160 and were thus severity level 4 drug felonies. At the time that Andelt committed both of these offenses, he was on parole in Nebraska for a conviction of felony theft.
K.S.A. 21-4729, which was adopted as part of the comprehensive amendments to the Criminal Code contained in Senate Bill 123 in 2003, provides that when a person is convicted under K.S.A. 65-4160 (or K.S.A. 65-4162) and meets certain criteria in terms of criminal history score and crime severity level, the sentencing court “shall commit the offender to treatment in a drug abuse treatment program until determined suitable for discharge by the court but the term of treatment shall not exceed 18 months.” K.S.A. 21-4729(c); L. 2003, ch. 135, sec. 1; see K.S.A. 2008 Supp. 75-52,144 (regarding certified drug abuse treatment programs, requirements, presentence drug abuse assessments, certified providers, and program costs).
In both cases, Andelt’s criminal history score E, combined with the severity level of his offenses, qualified him for the nonprison sanction of commitment to a certified drug abuse treatment pro gram established by K.S.A. 21-4729. See K.S.A. 21-4729(a)(l) (listing offenders convicted of a violation of K.S.A. 65-4160 in the 4-E gridbox of the Kansas Sentencing Guidelines as persons qualified for the program).
Although both of the district courts conducting Andelt’s sentencing hearings noted that K.S.A. 21-4729 would ordinarily apply to the respective offenses, each court imposed sentences of 20 months’ imprisonment due to the fact that Andelt had committed the offenses while on felony parole. These sentences were based on the standard term in K.S.A. 21-4705(a) (drug grid), with a dis-positional departure to imprisonment under K.S.A. 21-4603d(f)(l) (court may sentence offender to imprisonment even when the crime of conviction presumes a nonprison sentence when the current crime was committed while offender was on felony parole).
The two sentences were not identical in all respects. In addition to the 20-month prison term, the Marshall County District Court imposed a 12-month term of postrelease supervision for the offense committed in that jurisdiction. And because the Washington County District Court held Andelt’s sentencing hearing after the Marshall County sentencing, the Washington County journal entry indicated that Andelt’s sentence must be served consecutive to his sentence for the Marshall County offense. The Washington County journal entry of sentencing also indicated that Andelt must reimburse the Board of Indigents’ Defense Services (BIDS) $525 for attorney fees and pay the $100 BIDS application fee.
Andelt filed appeals from both sentences.
In the appeal from his Marshall County sentence, Andelt claimed that the imposition of a prison sanction in lieu of commitment to a certified drug abuse treatment program and the imposition of a 12-month postrelease term violated K.S.A. 21-4729 and K.S.A. 21-4603d(n).
The Court of Appeals affirmed the defendant’s sentence in a published opinion, concluding that the district court has discretion under K.S.A. 21-4603d(f)(l) to impose a prison sanction in a presumptive probation case when an underlying offense was committed on felony parole. The Court of Appeals concluded that there was no conflict between this provision and the certified drug abuse treatment programs established by K.S.A. 21-4729. State v. Andelt, 40 Kan. App. 2d 796, 798-99, 195 P.3d 1220 (2008). The court also found Andelt’s claims relating to postrelease supervision to be without merit. 40 Kan. App. 2d at 798-99. Because the court found Andelt’s sentence to be within the presumptive sentencing range under the Kansas sentencing guidelines, it dismissed Andelt’s appeal. 40 Kan. App. 2d at 799-800.
In the appeal from his Washington County sentence, Andelt claimed (as he had in the Marshall County case) that the imposition of a prison sanction in lieu of commitment to a certified drug abuse treatment program violated K.S.A. 21-4729 and K.S.A. 21-4603d(n). Andelt also claimed that the district court erred when it ordered reimbursement of BIDS attorney fees without first making findings regarding his ability to pay those fees and that he should not be required to pay the BIDS application fee when reimbursement of that fee was ordered by the journal entiy of sentencing but not mentioned during the sentencing hearing.
The Court of Appeals affirmed Andelt’s Washington County prison sentence for the same reasons addressed in the Marshall County appeal. State v. Andelt, No. 98,665, unpublished opinion filed September 19, 2008, slip op. at 5-6. The court also upheld the order that Andelt pay the BIDS application fee, finding this court’s recent decision in State v. Scaife, 286 Kan. 614, 625-26, 186 P.3d 755 (2008), to be controlling. Andelt, slip op. at 2-4. The court reversed on the question of reimbursement of BIDS attorney fees under State v. Robinson, 281 Kan. 538, 132 P.3d 934 (2006), and K.S.A. 22-4513(b), and remanded the case to the district court for findings regarding Andelt’s ability to pay those fees. Andelt, slip op. at 2.
We granted Andelt’s petitions for review of both of these decisions. The cases were consolidated for our review on Andelt’s motion.
Statutory Interpretation of K.S.A. 21-4729 and K.S.A. 21-4603d
Resolution of this case turns on our interpretation of three statutory provisions: K.S.A. 21-4729 (requiring a certified drug abuse treatment program for qualified offenders), K.S.A. 21-4603d(n) (recognizing exceptions to the certified drug abuse treatment program and further explaining the contours of that program), and K.S.A. 21-4603d(f)(l) (granting district courts discretion to impose prison sentences in cases where the underlying offense was committed while on felony parole). Interpretation of sentencing statutes is a question of law over which an appellate court exercises unlimited review. State v. Walker, 280 Kan. 513, 515, 124 P.3d 39 (2005).
When courts are called upon to interpret statutes, the fundamental rule governing that interpretation is that “the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted.” State ex rel. Stovall v. Meneley, 271 Kan. 355, 378, 22 P.3d 124 (2001). For this reason, when the language of a statute is plain and unambiguous, courts “need not resort to statutoiy construction.” In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007), cert. denied 172 L. Ed. 2d 239 (2008). Instead, “[w]hen the language is plain and unambiguous, an appellate court is bound to implement the expressed intent.” State v. Manbeck, 277 Kan. 224, Syl. ¶ 3, 83 P.3d 190 (2004). Only where the face of a statute leaves its construction uncertain does the court “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. [Citation omitted.]” Robinett v. The Haskell Co., 270 Kan. 95, 100-01, 12 P.3d 411 (2000).
Discussion and Analysis
The Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq., establishes an 18- to 22-month sentence of presumptive probation for a conviction of a felony drug offense with a criminal histoiy score of 4-E. See K.S.A. 21-4705(a) (drug grid). Sentences that fall within the sentencing grid are “presumptive” sentences under the KSGA and are not subject to appeal. See K.S.A. 21-4703(q); K.S.A. 21-4721(c)(l); see also State v. Ortega-Cadelan, 287 Kan. 157, 163-64, 194 P.3d 1195 (2008) (sentences for off-grid crimes are not presumptive sentences within the meaning of K.S.A. 21-4703[q] because those sentences do not come from the sentencing grid). Moreover, K.S.A. 21-4603d(f)(l) allows district courts to impose prison sanctions in cases that would otherwise presume probation when the underlying offense was committed while the offender was on felony parole. K.S.A. 21-4603d(f)(l) further indicates that such a modification “does not constitute a departure.”
If the district courts in Andelt’s cases had the authority to impose 20-month prison sentences under the KSGA and the other sentencing statutes (that is, if the sentencing grid was applicable), Andelt’s resultant sentences would not be subject to appellate review. The question, however, is whether the district courts were permitted to impose gridbox sentences, given the language of K.S.A. 21-4729.
K.S.A. 21-4729 establishes a nonprison sanction of commitment to a certified drug abuse treatment program for certain offenders sentenced on or after November 1, 2003. The nonprison sanction is limited to adult offenders convicted of a violation of K.S.A. 65-4160 and K.S.A. 65-4162 with the following additional requirements:
“(1) Whose offense is classified in grid blocks 4-E, 4-F, 4-G, 4-H or 4-1 of the sentencing guidelines grid for drug crimes and such offender has no felony conviction of K.S.A. 65-4142, 65-4159, 65-4161, 65-4163 or 65-4164, and amendments thereto or any substantially similar offense from another jurisdiction; or
“(2) whose offense is classified in grid blocks 4-A, 4-B, 4-C or 4-D of the sentencing guidelines grid for drug crimes and such offender has no felony conviction of K.S.A. 65-4142, 65-4159, 65-4161, 65-4163 or 65-4164, and amendments thereto, or any substantially similar offense from another jurisdiction, if such person felonies committed by the offender were severity level 8, 9 or 10 or nongrid offenses of the sentencing guidelines grid for nondrug crimes and the court finds and sets forth with particularity the reasons for finding that the safety of the members of the public will not be jeopardized by such placement in a drug abuse treatment program.” K.S.A. 21-4729(a)(l) and (2).
If an offender meets these requirements, “[t]he sentencing court shall commit the offender to treatment in a drug abuse treatment program until determined suitable for discharge by the court but the term of treatment shall not exceed 18 months.” (Emphasis added.) K.S.A. 21-4729(c).
K.S.A. 21-4705(f) creates an exception to the nonprison sanction in K.S.A. 21-4729. When a defendant is convicted of a third or subsequent felony under K.S.A. 65-4160 or K.S.A. 65-4162, K.S.A. 21-4705(f) provides that the sentence “shall be a presumptive term of imprisonment” under the KSGA. The sentence imposed under K.S.A. 21-4705(f) “shall not be considered a departure and shall not be subject to appeal.”
Andelt argues that both district courts should have ordered him to participate in a certified drug abuse treatment program under K.S.A. 21-4729 and K.S.A. 21-4603d(n), rather than impose a prison sentence under K.S.A. 21-4603d(f), because such programs are mandatory in all cases that do not involve the application of K.S.A. 21-4705(f). Andelt claims that this interpretation of the statutes should prevail because “(1) [sjpecial statutes prevail over general statutes, (2) more recent statutes prevail, and (3) the rule of lenity” applies.
Rather than sentencing Andelt to a certified drug abuse treatment program under K.S.A. 21-4729, however, both district courts imposed prison sanctions under K.S.A. 21-4603d(f)(l). This provision states in relevant part:
“When a new felony is committed while the offender is ... on parole, . . . the court may sentence the offender to imprisonment for the new conviction, even when the new crime of conviction otherwise presumes a nonprison sentence. In this event, imposition of a prison sentence for the new crime does not constitute a departure.” K.S.A. 21-4603d(f)(l).
This section allows a district court to impose a prison sanction when a nonprison sentence is “otherwise presume[d].” K.S.A. 21-4603d(f)(l). K.S.A. 21-4729 does not establish a “presumptive” sentence within the meaning of the KSGA, however, because certified drug abuse treatment programs are not part of the sentencing grid. See K.S.A. 21-4703(q); Ortega-Cadelan, 287 Kan. at 163-64. Rather, K.S.A. 21-4729 removes qualifying offenders from the applicable gridbox and instead commits them to a certified drug abuse treatment program. Under the plain language of K.S.A. 21- 4603d(f)(l), that section only applies to presumptive sentences, not to other dispositions mandated by the legislature.
Despite the plain language of K.S.A. 21-4603d(f)(l), the State argues that language in subsection (n) of K.S.A. 21-4603d indicates that the felony-parole provision applies to cases that would otherwise be sentenced to a certified drug abuse treatment program under K.S.A. 21-4729. K.S.A. 21-4603d(n) states in relevant part:
“Except as provided by subsection (f) of K.S.A. 21-4705, and amendments thereto, in addition to any of the above, for felony violations of K.S.A. 65-4160 and 65-4162, and amendments thereto, the court shall require the defendant who meets the requirements established in K.S.A. 21-4729, and amendments thereto, to participate in a certified drug abuse treatment program, as provided in K.S.A. 2007 Supp. 75-52,144, and amendments thereto, including but not limited to, an approved after-care plan.”
The State argues that the “in addition to any of the above” language in this subsection should be read in conjunction with the previous “[e]xcept as provided in [K.S.A. 21-4705(f)]” phrase to indicate that the legislature intended to allow courts discretion to sentence offenders who would otherwise be subject to a certified drug abuse treatment program to any of the dispositions previously discussed within K.S.A. 21-4603d. This interpretation was endorsed by the Court of Appeals in both cases presently subject to our review. In Andelt’s cases, the Court of Appeals held that the first sentence of K.S.A. 21-4603d(n) laid out exceptions to the otherwise-mandatory drug abuse treatment program of K.S.A. 21-4729 in both K.S.A. 21-4705(f) (the repeat offender provision described previously) and all of the other provisions of K.S.A. 21-4603d. Andelt, 40 Kan. App. 2d at 798; see Andelt, slip op. at 5-6.
We reject the State’s and Court of Appeals’ interpretation in Andelt’s cases because such an interpretation is contrary to the plain language of K.S.A. 21-4729 and K.S.A. 21-4603d.
K.S.A. 21-4729(c) mandates commitment to a certified drug abuse treatment program for all offenders who meet the requirements of that statute. K.S.A. 21-4603d(n) similarly states, with the exception of the repeat offender provision in K.S.A. 21-4705(f) and in addition to other sentencing dispositions described in the statute (such as fines and restitution), a court “shall require the defendant who meets the requirements established in K.S.A. 21-4729, and amendments thereto, to participate in a certified drug abuse treatment program.” Thus K.S.A. 21-4603d(n) — like K.S.A. 21-4729(c) — makes the drug abuse treatment program mandatory for quahfying offenders.
In contrast, K.S.A. 21-4603d(f)(l) gives district courts discretion to impose a prison sanction when probation is presumed if an offender commits a new crime while on felony bond. Not only does the language of this statute limit its application to cases involving presumptive sentences, which Andelf s cases do not, but its discretionary nature cannot control over a clear legislative mandate for commitment to a certified drug abuse treatment program.
The “in addition to any of the above” language in K.S.A. 21-4603d(n) does not alter this interpretation. In fact, to read the “in addition to any of the above” language as the State argues (meaning, to read it as an additional exception) is contrary to the plain language of that statute. It is not possible to impose both a prison sanction and a nonprison sanction as an offender’s primary sentence for the underlying crime. Thus, under the State’s interpretation of K.S.A. 21-4603d(n), a district court would not be imposing a prison sanction under subsection (f) in addition to a probationary drug abuse treatment program, but rather it would be imposing a prison sentence instead of drug abuse treatment. The phrases “in addition to” and “instead of’ have very different meanings, and we decline to read them as synonymous.
Furthermore, we note that K.S.A. 21-4603d, read as a whole, sets forth the various types of sentences that a court may impose in a criminal case. These include, among other options, commitment to imprisonment or placement on probation; imposition of restitution, fines, or other costs; and assignment to house arrest or some drug treatment program. Throughout the statute, the phrase “in addition to any of the above” (or some similar construction) is used to refer to the discretionary options a district court may consider at sentencing, subject to other statutory limitations. Thus, the plain language of K.S.A. 21-4603d(n) indicates that in addition to these other options that may be imposed at sentencing, a district court must sentence an offender to a certified drug abuse treatment program when that offender meets the qualifications of K.S.A. 21-4729. See State v. Casey, 42 Kan. App. 2d 309, 211 P.3d 847 (2009) (rejecting the Court of Appeals’ interpretations of K.S.A. 21-4603d in both Andelt cases and endorsing the interpretation described here).
This interpretation is similarly supported by the plain language of K.S.A. 21-4729. That statute specifically sets forth which offenders are subject to drug abuse treatment programs and specifically excepts certain offenders who would otherwise qualify under the statute. For example, while offenders who commit drug crimes classified as 4-E, 4-F, 4-G, 4-H, and 4-1 are subject to such a program as long as they have no prior drug convictions under various statutes, offenders who commit crimes under 4-A though 4-D only qualify for the program if the “person felonies committed by offender were severity level 8, 9, or 10 or nongrid offenses . . . and the court finds and sets forth with particularity the reasons for finding that the safety of the members of the public will not be jeopardized by such placement in a drug abuse treatment program.” K.S.A. 21-4729(a)(2).
Likewise, K.S.A. 21-4729(h) specifically excepts certain offenders who otherwise “meet the requirements of subsection (a)” from the drug abuse treatment program, including:
“(A) Offenders who are residents of another state and are returning to such state pursuant to interstate corrections compact or the interstate compact for adult supervision; or
“(B) offenders who are not lawfully present in the United States and being detained for deportation.” K.S.A. 21-4729(h)(l).
Offenders who fall into one of these two exceptions (neither of which apply in this case) “shall be sentenced as otherwise provided by law.” K.S.A. 21-4729(h)(l). In such cases, the resultant sentences “shall not be considered a departure and shall not be subject to appeal.” K.S.A. 21-4729(h)(2).
As both of these examples illustrate, the legislature clearly understood that it could put limitations on the scope of the drug abuse treatment program as a sentencing option or that it could exclude certain offenders from the application of the program altogether and allow other sentencing provisions to control. See also K.S.A. 21-4705(f) (indicating that repeat drug offenders will be sentenced to imprisonment regardless of whether such offenders would otherwise qualify for the drug abuse treatment program). The fact that the legislature specifically exempted certain offenders from the certified drug abuse treatment program but did not do so for offenders who committed a crime while on felony parole indicates that the latter were still within the scope of the program.
Finally, we emphasize that our interpretation of these statutes does not render meaningless the fact that an offense was committed while on felony parole. Rather, when the previous felony conviction arises in this state, a court may still revoke the offender s parole for the previous felony. Although the previous felony in this case was committed in Nebraska, that state is free to evaluate Andelt’s sentence for his previous felony theft conviction under its own sentencing laws.
We conclude that the plain language of K.S.A. 21-4729 and K.S.A. 21-4603d makes certified drug abuse treatment programs mandatoiy for individuals who qualify for such programs under K.S.A. 21-4729. A district court does not have discretion to sentence an offender otherwise qualifying for a drug abuse treatment program to imprisonment. We reach this conclusion on the basis of the statutory language, so we need not consider the principles of statutory construction advocated by Andelt in his petitions for review.
For all of these reasons, the Marshall and Washington County District Courts erred when the courts sentenced Andelt to 20 months’ imprisonment instead of appropriate terms of drug abuse treatment under K.S.A. 21-4729. We reverse the judgments of the Court of Appeals and district courts with regard to Andelt’s sentences, vacate those sentences, and remand to the district courts with directions to resentence Andelt to appropriate terms in a certified drug abuse treatment program under K.S.A. 21-4729.
Postrelease Supervision
Andelt also argues that the Marshall County District Court erred when it imposed a requirement of 12 months’ postrelease super vision to be completed after Andelt was released from his 20-month prison sentence. We have concluded that the Marshall County District Court should have committed Andelt to a certified drug abuse treatment program under K.S.A. 21-4729, not a period of imprisonment, and have vacated the underlying sentence. The question of postrelease supervision only arises when an offender has been sentenced to prison. See K.S.A. 22-3717(d). Because the Marshall County District Court did not have the authority to sentence Andelt to prison, it also lacked the authority to impose a period of postrelease supervision. That portion of Andelt’s sentence is therefore also vacated.
BIDS Application Fee
Andelt claims that the Washington County District Court erred by requiring him in the journal entry of sentencing to reimburse the $100 BIDS application fee when the court did not include the application fee in its pronouncement from the bench at the sentencing hearing. The Court of Appeals found this claim to be without merit in light of this court’s recent decision in State v. Scaife, 286 Kan. 614, 625-26, 186 P.3d 755 (2008).
In Scaife, this court held that because a defendant incurs the obligation to pay the BIDS application fee when the application is completed, an order in a journal entry of sentencing to pay an unpaid application fee — even if not pronounced from the bench— is not improper when the district court references an assessment of costs at the sentencing hearing. 286 Kan. at 625-26. This reasoning is sound. Because Andelt’s arguments on appeal do not bring any new dimension to this discussion, Scaife controls. The Court of Appeals correctly concluded that his claim is without merit. See State v. Andelt, No. 98,665, unpublished opinion filed September 19, 2008, slip op. at 2-4.
The judgment of the Court of Appeals affirming the Marshall County District Court in Case No. 98,699 is reversed, and the judgment of the district court is reversed. We vacate Andelt’s prison sentence and accompanying postrelease supervision period and remand the case to the Marshall County District Court with directions for resentencing under K.S.A. 21-4729.
The judgment of the Court of Appeals affirming the Washington County District Court in Case No. 98,665 is affirmed with respect to its assessment of Andelt’s BIDS application fee and reversed with regard to Andelt’s sentence. We note that the Court of Appeals’ conclusion that the case should be remanded for further findings under State v. Robinson, 281 Kan. 538, 132 P.3d 934 (2006), and K.S.A. 22-4513(b), regarding Andelt’s ability to reimburse BIDS attorney fees is not before us. Therefore, that judgment remains in effect. The judgment of the district court is affirmed in part and reversed in part. We vacate Andelt’s prison sentence and remand the case to the Washington County District Court with directions for resentencing under K.S.A. 21-4729. | [
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The opinion of the court was delivered by
Lockett, J.:
Defendant James C. Hunter appeals his convictions of two counts of felony murder, two counts of aggravated kidnapping, one count of aggravated robbery, one count of aggravated battery on a law enforcement officer, and one count of aggravated battery. Hunter raises numerous issues, among them that the trial judge committed reversible error by refusing Hunter’s requested instruction on his defense of compulsion. We reverse and remand for a new trial.
In February 1985 James C. Hunter, a resident of Amoret, Missouri, was hitchhiking from Texas back to the Kansas City area. He arrived in Wichita on February 12, 1985. On February 13, Hunter hitched a ride with Mark Walters, Lisa Dunn, and Daniel Remeta. On the way north on 1-135, Remeta displayed two weapons, a .357 Magnum and an inoperative .22 pistol. Hunter repaired the .22 and Remeta fired the .22 out of the car window several times. When they reached the intersection of 1-135 and 1-70, Hunter asked to be let off. At that point Remeta began talking about another hitchhiker he wished he had killed and also described prior crimes he had committed, including several murders.
At the Levant exchange on 1-70, Dunn, Walters, Remeta, and the defendant were pulled over by a police car. The driver of the police car was Thomas County Undersheriff Benjamin F. Al-bright, who had been asked to investigate a vehicle matching the description of the car. Albright instructed the occupants to remain in the car and put their hands on the ceiling. One of the passengers exited the car and fired two shots through Albright’s windshield. Albright identified the person who fired these shots as having shoulder-length brown hair and a full beard. This description matched that of the defendant. Immediately thereafter, Albright was shot by the same person in the arm and chest. At trial, Albright identified James Hunter as his assailant. Hunter, Dunn, and Remeta all testified that it was Remeta who shot Albright. Hunter testified that, after Albright was shot, he attempted to shoot Remeta with the .22 handgun but accidentally wounded Dunn. Dunn and Remeta corroborated this testimony.
Shortly after the Albright shooting, the Remeta vehicle reached the Bartlett Elevator in Levant, Kansas. There were eight individuals at the elevator: Maurice Christie, the elevator manager; Fred Sager, the assistant manager; and Dennis Tubbs, Raymond Haremza, Rick Schroeder, Glenn Moore, and two others. The testimony concerning Hunter’s activities at the Levant elevator conflicted greatly. Christie testified that he observed “a bearded man,” later identified as Hunter, holding a gun in the face of Rick Schroeder and forcing him into a pickup truck. Sager testified that he saw a bearded man with a gun in his hand and that Rick Schroeder got into the pickup by himself. Dennis Tubbs testified that Hunter held Schroeder’s arm and told him to get into the pickup; he further testified he saw only one person with a gun. After Rick Schroeder and Glenn Moore were taken as hostages and loaded into Moore’s pickup truck, Christie, while attempting to call the sheriff from the scale house, was shot by Remeta.
Following the shooting at the elevator, the hostages were driven to a point north of U.S. Highway 24 near Colby, Kansas. Remeta testified that he killed both Schroeder and Moore and left them at the side of the road. Police caught up with the pickup truck and forced it off the road at a farm. During an exchange of gunfire, Walters was killed. Subsequently, Remeta, Dunn, and Hunter were arrested.
Remeta, Dunn, and Hunter were formally charged on February 15, 1985. A preliminary hearing was held, after which all three defendants were bound over. At the arraignment, all defendants refused to enter a plea and the trial court entered pleas of not guilty on behalf of all three. Prior to trial, Remeta entered a plea of guilty to all charges. Dunn and Hunter were tried by a jury, found guilty of all counts, and sentenced to consecutive terms. Hunter now appeals his conviction of two counts of felony murder (Schroeder and Moore), two counts of aggravated kidnapping (Schroeder and Moore), one count of aggravated battery on a law enforcement officer (Albright), one count of aggravated battery (Christie), and one count of aggravated robbery.
MOTION FOR SEVERANCE
Initially, Hunter contends that the trial court erred in refusing to grant him a separate trial from Dunn. Originally Remeta, Dunn, and Hunter were charged by separate complaints for identical crimes. The State’s motion for joinder of the preliminary hearings and trials was granted. Following arraignment, each defendant filed a motion for severance which was denied.
Two or more defendants may be charged in the same complaint, information, or indictment if they are alleged to have participated in the same act or series of acts constituting the crime or crimes. K.S.A. 22-3202(3). Two or more defendants, charged in separate complaints or informations which allege that the defendants have participated in the same act or acts, may be later joined for trial if the defendants could have been charged in the same complaint, information, or indictment. State v. Tate, 228 Kan. 752, 620 P.2d 326 (1980).
When two or more defendants are jointly charged with a crime, the court may order a separate trial for any one defendant. K.S.A. 22-3204. Severance under 22-3204 lies within the sound discretion of the trial judge. State v. Myrick & Nelms, 228 Kan. 406, 416, 616 P.2d 1066 (1980). In order for a separate trial of a joint defendant to be granted, the movant must present to the trial judge grounds sufficient to establish actual prejudice. State v. Jones, 222 Kan. 56, 58, 563 P.2d 1021 (1977).
The usual grounds for granting a motion for severance are: (1) The defendants have antagonistic defenses; (2) important evidence in favor of one of the defendants which would be admissible in a separate trial would not be allowed in a joint trial; (3) evidence incompetent as to one defendant which can be introduced against another would work prejudicially to the former with the jury; (4) a confession by one defendant, if introduced and proved, would be calculated to prejudice the jury against the others; and (5) one of the defendants who could give evidence for the whole or some of the other defendants would become a competent and compellable witness on the separate trials of such other defendants. State v. Pham, 234 Kan. 649, 653, 675 P.2d 848 (1984) (citing State v. Martin, 234 Kan. 548, 673 P.2d 104 [1983]).
At the joint trial, Dunn requested and was granted a motion in limine to exclude evidence of other crimes she was alleged to have committed. Hunter argues that when the trial court granted Dunn’s motion in limine, evidence important to his case was excluded; namely, evidence that charges were pending for crimes allegedly committed by Remeta and Dunn in Arkansas, Texas, Michigan, Florida, and Gove, Kansas, immediately prior to the crimes in question, and also specific statements by Hunter and Dunn concerning these crimes. Hunter contends that the subsequent denial of a separate trial seriously prejudiced his defense and constitutes reversible error. We disagree.
Throughout the trial, Hunter’s compulsion defense rested on the magnitude of his fear of Remeta, not of Dunn. Thus, any evidence regarding charges against Dunn for prior crimes would not have been relevant. The fact that after Hunter’s arrest Re-meta was subsequently charged with other offenses was also not relevant to the defense of compulsion. Evidence of events subsequent to an arrest is generally not relevant to show that an individual was compelled to commit the prior criminal acts. The trial judge correctly determined that evidence of Remeta’s and Dunn’s subsequent charges should be excluded, but incorrectly chose K.S.A. 60-455 as the reason for the exclusion. This statute provides that evidence that a person committed a crime or a civil wrong may be admitted under limited circumstances to prove something other than the person’s predisposition to commit a crime.
It is only Remeta’s description of his prior crimes which could have explained the reasonableness of Hunter’s fear of Remeta. Only these statements are relevant to the compulsion defense. Although Hunter also argues that detailed testimony of Remeta’s prior criminal activities was excluded, the record shows that Hunter, Remeta, and Dunn were allowed to testify about Re-meta’s statements concerning multiple murders he had committed and a hitchhiker he wished he had killed. Hunter is unable to demonstrate that his defense was prejudiced because important evidence was excluded in the joint trial. The trial court properly denied the motion for severance.
CHANGE OF VENUE
Hunter next contends that the trial court erred in denying his motion for change of venue pursuant to K.S.A. 22-2616(1), which provides:
“In any prosecution, the court upon motion of the defendant shall order that the case be transferred as to him to another county or district if the court is satisfied that there exists in the county where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in that county.”
The determination of whether to change venue lies within the sound discretion of the trial court and will not be disturbed on appeal absent a showing of prejudice to the substantial rights of the defendant, with the burden upon the defendant to show prejudice in the community, not as a matter of speculation, but as a demonstrable reality. The defendant must show that such prejudice existed in the community that it was reasonably certain he could not have obtained a fair trial. There must be more than speculation that the defendant did not receive a fair trial. The State is not required to produce evidence refuting that of the defendant. State v. Ruebke, 240 Kan. 493, Syl. ¶¶ 2, 3, 731 P.2d 842 (1987).
At the original hearing on the motion for a change of venue, defendant urged the court to consider the following factors:
(1) Extensive pretrial media coverage of the crime.
Media publicity alone has never established prejudice per se. State v. Ruebke, 240 Kan. at 500; State v. Porter, 223 Kan. 114, 117, 574 P.2d 187 (1977). It is the defendant’s burden to show that the publicity has reached the community to such a degree that it is impossible to get an impartial jury. State v. May, 227 Kan. 393, 394-95, 607 P.2d 72 (1980). There is no question but that the crimes committed shocked the surrounding communities and that the local media reflected this outrage. These facts alone, however, do not entitle defendant to a change of venue. See State v. Myrick & Nelms, 228 Kan. at 417. The news reports were factual and not inflammatory and Hunter presented no evidence to show the media attempted to influence the outcome of the trial. See State v. Sanders, 223 Kan. 273, 279, 574 P.2d 559 (1977). The one inaccuracy which might have resulted in prejudice to Hunter was an early report that he was a participant in Remeta’s and Dunn’s “crime spree” in other states. This misinformation was ultimately corrected by the news media prior to trial.
(2) The receipt by the sheriff s department of two threatening phone calls regarding the defendants and their ultimate removal to another jail, and fourteen affidavits from community members in which the affiants stated that defendants could not receive a fair trial in Thomas County.
Defendant, however, was unable to show that such isolated sentiments permeated the community as a whole.
(3) A petition sent to Governor Carlin’s office a few days after the crimes were committed urging the governor to sign the death penalty bill.
The petition included 1550 signatures, 67 percent from Thomas County. It urged the governor to support the death penalty; however, there was no reference either to the crimes in Thomas County or to the defendants in this case. A representative from the governor’s office testified at the hearing on the change of venue motion that the petition was received at the time the death penalty was being considered by the Kansas legislature and was one of many petitions and other communications supporting the death penalty received by the governor at this time. While the petition may indicate strong feelings in favor of the death penalty among some residents of Thomas County as a result of the crimes, it does not indicate that a fair trial could not be conducted in the community.
(4) The fact that out of 95 jury panel members questioned, 89 knew at least one of the victims and that five members of the final jury panel knew one or more of the victims.
When crimes occur in rural areas, it is inevitable that members of the jury panel will be acquainted with trial participants or victims. In such cases we must examine the jury selection process to determine whether defendant’s rights to a fair trial have been jeopardized. As we have stated, the difficulty in selecting a fair and impartial jury is an important factor in weighing a claim of prejudice. State v. Ruebke, 240 Kan. at 500; State v. Myrick & Nelms, 228 Kan. at 418. In this case, a jury panel was passed for cause after one and one-half days of voir dire. From a panel of 143 prospective jurors, 39 were excused for cause, 51 were dismissed by peremptory challenges, and 39 were excused from service; twelve jurors and two alternates served. There appears to have been no difficulty in selecting an impartial jury. Although five of the final twelve jurors stated they were acquainted with one or more of the victims, none admitted to a close friendship and each stated under oath that he or she would be able to remain fair and impartial. In order to find that defendant has established prejudice, we would have to assume that these jurors violated their oaths; this we cannot do.
Hunter has failed to prove that there existed such prejudice in Thomas County that he reasonably could not have received a fair trial. The trial court did not abuse its discretion in denying defendant’s motion for change of venue.
PRIOR INCONSISTENT STATEMENT
Hunter next argues that the trial court erred in limiting cross-examination regarding a prior inconsistent statement of a State’s witness. Maurice Christie, the manager of the Levant grain elevator who was shot by Remeta, testified on direct that he saw Hunter hold a gun on Rick Schroeder and force him into the pickup truck. On cross-examination, defendant attempted to impeach Christie with a prior inconsistent statement reported in the Kansas City Star on February 17, 1985. Christie was handed the newspaper and given an opportunity to review the article. Defendant’s attorney then began to question Christie on individual statements. Christie denied the first statement, after which the prosecution objected stating that further questioning would “prejudice and inflame the passions of this jury.” The trial court, incorrectly relying on K.S.A. 60-422(b), sustained the motion and prevented defendant’s attorney from further impeachment of the State’s witness by use of the newspaper article.
Under K.S.A. 60-401(b) and K.S.A. 60-407(f), all relevant evidence is admissible if it tends to prove a material fact. Where a witness has made a prior inconsistent statement of a relevant fact, that evidence is admissible. If the witness had written a statement that was inconsistent with his testimony, the defendant’s attorney would have the right to cross-examine the witness by use of the written statement, subject to foundation requirements imposed by the judge. K.S.A. 60-422(a).
A newspaper article, however, is actually a statement by a reporter of a purported statement made by the witness testifying. Here, the newspaper article was offered to prove that Christie made a prior inconsistent statement and thus fits the classical definition of hearsay. Because the statement does not fall within one of the many exceptions to the hearsay rule listed in K.S.A. 1986 Supp. 60-460, the newspaper article was inadmissible. The proper procedure to introduce the evidence would have been to have the author of the article testify and then be examined about the prior inconsistent statement. The author would be subject to cross-examination by the State and the jury would have had the opportunity to observe the witness while testifying. For these reasons the evidence was properly excluded.
REBUTTAL WITNESS
Hunter also asserts that the trial court erred in permitting the testimony of an unendorsed rebuttal witness, Boyd Touslee, and in not granting a motion to strike or for a mistrial. Defendant did not object to Touslee’s testimony until after it was completed.
K.S.A. 1986 Supp. 22-3201(6) provides:
“The prosecuting attorney shall endorse the names of all witnesses known to the prosecuting attorney upon the complaint, information and indictment at the time of filing it. The prosecuting attorney may endorse on it the names of other witnesses that may afterward become known to the prosecuting attorney, at times that the court may by rule or otherwise prescribe.”
K.S.A. 1986 Supp. 22-3201(6) makes late endorsement of the State’s witnesses discretionary with the trial court. State v. Thompson, 232 Kan. 364, 367, 654 P.2d 453 (1982) (citing State v. Ferguson, Washington & Tucker, 228 Kan. 522, 618 P.2d 1186 [1980]). Normally, late endorsement is permitted if the opposing parties are given time to interview the witnesses and cross-check their testimony. State v. Ferguson, Washington & Tucker, 228 Kan. at 526. However, special rules apply in the case of rebuttal witnesses. We have consistently held that a prosecuting attorney is not required to endorse the names of rebuttal witnesses. Talley v. State, 222 Kan. 289, 292, 564 P.2d 504 (1977) (citing State v. Bean, 181 Kan. 1044, Syl. ¶ 1, 317 P.2d 480 [1957]). Thus, the trial court did not abuse its discretion in allowing Touslee’s testimony.
Even if the admission of the testimony had constituted abuse of discretion, actual prejudice to defendant’s ability to defend must be shown in order to reverse. State v. Thompson, 232 Kan. at 367. Defendant argues that Touslee’s testimony that he had observed Hunter seated on the passenger side of the front seat of the vehicle was highly damaging since it contradicted defendant’s testimony that he had never been seated in the front. However, another rebuttal witness also testified that he saw a man with a beard in the front seat of the car, so it appears unlikely that defendant’s case was prejudiced by Touslee’s testimony.
Further, the defendant failed to object to the testimony until after it was completed. The failure to object to a witness whose name is not endorsed on the information until the examination of the witness is concluded constitutes waiver. State v. Cook, 225 Kan. 259, Syl. ¶ 1, 589 P.2d 616 (1979).
AIDING AND ABETTING
Hunter next argues that the trial court erred in failing to instruct the jury that mere association by a defendant with codefendants should not be considered to imply that the defendant aided and abetted in the crime. The court’s Instruction No. 11 follows PIK Crim. 2d 54.05:
“A person who, either before or during its commission, intentionally aids or abets another to commit a crime with intent to promote or assist in its commission is criminally responsible for the crime committed regardless of the extent of the defendant’s participation, if any, in the actual commission of the crime.”
The defendant had requested that either of the following instructions be added to the above instruction given by the trial court:
(1) “Mere association with the person or persons who actually commit the crime or the mere presence in the vicinity of the crime are themselves insufficient to establish that a person is responsible for the crimes of another.” or
(2) “Mere association with the principal or principals who actually commit the crime or mere presence in the vicinity of the crime is insufficient to establish guilt as an aider and abettor. To be guilty of aiding and abetting a person must willfully and knowingly associate herself with the unlawful venture and willfully participate in it as she would in something she wishes to bring about or to make succeed.”
There is no pattern instruction comparable to defendant’s requested additional instruction. Defendant cites as authority for the instruction State v. Green, 237 Kan. 146, 697 P.2d 1305 (1985), and State v. Burton, 235 Kan. 472, 681 P.2d 646 (1984). Although both Green and Burton held that mere association with principals is not sufficient to establish guilt as an aider and abettor, neither case mandated the giving of such an instruction. Defendant’s alleged error is identical to that raised in State v. Minor, 229 Kan. 86, 622 P.2d 998 (1981), and State v. Walters, 8 Kan. App. 2d 237, 655 P.2d 947 (1982). In both cases, we held that the PIK instruction given clearly informed the jury that intentional acts by a defendant must be proved to convict for aiding and abetting and, thus, proof of mere association or presence would be insufficient to convict. Therefore, the refusal to give defendant’s requested instruction was not error.
COMPULSION
For his final point on appeal, Hunter contends that the trial court committed reversible error by refusing to instruct the jury on his defense of compulsion. We agree. K.S.A. 21-3209 provides for the defense of compulsion to crimes other than murder or manslaughter, stating:
(1) “A person is not guilty of a crime other than murder or voluntary manslaughter by reason of conduct which he performs under the compulsion or threat of the imminent infliction of death or great bodily harm, if he reasonably believes that death or great bodily harm will be inflicted upon him or upon his spouse, parent, child, brother or sister if he does not perform such conduct.
(2) “The defense provided by this section is not available to one who willfully or wantonly places himself in a situation in which it is probable that he will be subjected to compulsion or threat.”
Defendant’s requested instruction, taken from PIK Crim. 2d 54.13, stated:
“It is a defense to the charges of Aggravated Battery Against a Law Enforcement Officer, Aggravated Robbery and Aggravated Kidnapping, if the defendant acted under compulsion or threat of immediate infliction of death or great bodily harm, and if said defendant reasonably believed that death or great bodily harm would have been inflicted upon said defendant had he or she not acted as he or she did.”
The trial court refused to give the compulsion instruction because the defendant was charged with premeditated and felony murder. The judge was unsure if the instruction was applicable where an individual is charged under the felony-murder rule, but determined that one who aids and abets felony murder is not entitled to the instruction.
Whether the defense of compulsion is available to a criminal defendant charged with felony murder under K.S.A. 21-3401 is an issue of first impression. Most modern statutes providing for a defense of compulsion evolved from the common-law policy that a person, when faced with a choice between suffering death or serious bodily harm and committing some lesser crime, could not be punished for committing the lesser offense. LaFave and Scott have explained the rationale of this “choice of evils” approach as follows:
“One who, under the pressure of an unlawful threat from another human being to harm him (or to harm a third person), commits what would otherwise be a crime may, under some circumstances, be justified in doing what he did and thus not be guilty of the crime in question. . , . The rationale of the defense is not that the defendant, faced with the unnerving threat of harm unless he does an act which violates the literal language of the criminal law, somehow loses his mental capacity to commit the crime in question. Rather it is that, even though he has the mental state which the crime requires, his conduct which violates the literal language of the criminal law is justified because he has thereby avoided harm of greater magnitude.” LaFave and Scott, Handbook on Criminal Law 374 (1972).
However, even early cases refused to recognize any compulsion as sufficient to excuse intentional killing. See Arp v. State, 97 Ala. 5, 12 So. 301 (1893); State v. Nargashian. 26 R.I. 299, 58 A. 953 (1904). The rationale is that, when confronted by a choice between two evils of equal magnitude, the individual ought to sacrifice his own life rather than escape by the murder of an innocent. See Perkins, Criminal Law 951 (1969), citing 4 Blackstone, Commentaries 30.
A number of jurisdictions, including Kansas, have incorporated by statute the common-law denial of the compulsion defense in crimes of murder. See e.g. Ariz. Rev. Stat. Ann. § 13-412 (1978); Colo. Rev. Stat. § 18-1-708 (1986); Ga. Code Ann. § 16-3-26 (1984); Ind. Code Ann. § 35-41-3-8 (Burns 1985); Ky. Rev. Stat. Ann. § 501.090 (Michie 1985); Me. Rev. Stat. Ann. tit. 17-A, § 103-A (1983); Mo. Rev. Stat. § 562.071 (1986); Or. Rev. Stat. § 161.270 (1985); Wash. Rev. Code § 9A.16.060 (1985). While not all jurisdictions have considered the applicability of these statutes to crimes of felony murder, we note that both Arizona and Missouri have held that defendants are barred from claiming the compulsion defense in felony-murder cases. They reason that the person charged need only have the required intent to commit or participate in the underlying felony and no other mental state on his part need be demonstrated because of the strict liability imposed by the felony-murder rule. See State v. Berndt, 138 Ariz. 41, 672 P.2d 1311 (1983); State v. Rumble, 680 S.W.2d 939 (Mo. 1984).
We are not, however, persuaded by the reasoning of these decisions. The better view, consistently adhered to by commentators, is that any limitation to the defense of duress be confined to crimes of intentional killing and not to killings done by another during the commission of some lesser felony. As LaFave and Scott have explained:
“[I]f A compels B at gunpoint to drive him to the bank which A intends to rob, and during the ensuing robbery A kills a bank customer C, B is not guilty of the robbery (for he was justified by duress) and so is not guilty of felony murder of C in the commission of robbery. The law properly recognizes that one is justified in aiding a robbery if he is forced by threats to do so to save his life; he should not lose the defense because his threateners unexpectedly kill someone in the course of the robbery and thus convert a mere robbery into a murder.” p. 377.
See Perkins at 952; accord Hitchler, Duress as a Defense in Criminal Cases, 4 Va. L. Rev. 519, 528-30 (1917).
This reasoning was adopted in Tully v. State, 730 P.2d 1206 (Okla. 1986), where the Court of Criminal Appeals of Oklahoma recently held that the defense of compulsion was available to a defendant charged with first-degree felony murder. Tully involved a defendant who allegedly was compelled to rob a man fatally beaten by TuIIy’s threatener. The trial court refused defendant’s requested instruction on compulsion, and on appeal the State argued that the defense was foreclosed in cases of felony murder. The Oklahoma court disagreed, reversed defendant’s conviction, and remanded for a new trial.
While Oklahoma does not statutorily preclude the compulsion defense in murder cases, the Oklahoma court found that, although the common law proscribes the defense of compulsion in cases of intentional killing, the defense should attach where the defendant commits the underlying felony and not the killing, as long as the defendant has reason to believe his life is in danger unless he participates. 730 P.2d at 1210. We agree and believe that the limitation to the use of the compulsion defense is restricted to crimes of intentional killing and that, where compulsion is a defense to an underlying felony under K.S.A 21-3209 so that the felony is justifiable, compulsion is equally a defense to charges of felony murder.
The State argues that, even if compulsion is a defense to felony murder, Hunter is precluded from claiming the defense while denying he committed the crimes, citing State v. Farmer, 212 Kan. 163, 167, 510 P.2d 180 (1973), which dealt with the defense of entrapment. The State asserts that the compulsion statute, K.S.A. 21-3209, like the entrapment statute, K.S.A. 21-3210, contemplates that criminal conduct has been performed and that, since the defendant is now attempting to excuse such conduct, it is inconsistent to deny the charges and claim compulsion.
In homicide cases, however, we have held that, notwithstanding the fact that the accused denies having committed the murder, he is entitled to an instruction on self-defense if that issue is raised by the evidence. State v. Smith, 161 Kan. 230, 167 P.2d 594 (1946). In Smith, this court granted the defendant a new trial based on the court’s failure to give a self-defense instruction, despite the fact that the defendant denied committing the offense and that the defense did not request a self-defense instruction. During trial, testimony by the defendant and the other witness to the crime disclosed facts which could have supported a self-defense theory. Our holding in Smith is in line with the well-established rule in homicide cases that whether a defendant is entitled to an instruction on self-defense depends solely on whether facts supporting this defense have been admitted into evidence. See State v. Jackett, 81 Kan. 168, 105 Pac. 689 (1909); State v. Heiskell, 8 Kan. App. 667, 666 P.2d 207 (1983). See also 40 Am. Jur. 2d, Homicide § 521.
We disagree with the State’s contention that the defense of compulsion is more similar to entrapment than to self-defense. The doctrine of entrapment has evolved in recent years as a curb to seriously improper law enforcement conduct. Unlike more common defenses such as self-defense and compulsion, entrapment is not pled to establish justification for committing a crime, but rather to present facts collateral to the crime which justify acquittal on the grounds of public policy. 21 Am. Jur. 2d, Criminal Law 204, p. 372. The rule that the defense of entrapment is not available to one who denies the offense appears to be an exception to the general rule that inconsistent defenses are generally permissible in criminal prosecutions. 22 C.J.S., Criminal Law § 54. Kansas modified this general rule even in entrapment cases, in State v. Farmer, 212 Kan. 163. In Farmer, the defendant was charged with delivering a drug to a law enforcement officer. He pled not guilty, claiming entrapment but, at the same time, admitted most of the elements of the offense. We held that despite inconsistent defenses,.the evidence required submission of the entrapment defense to the jury. 212 Kan. at 167. Relying on Farmer, we implicitly adopted the rule allowing inconsistent defenses in State v. Myers, 233 Kan 611, 616, 664 P.2d 834 (1983), a compulsion case, where we held that all theories of the prosecution and the defense supported by evidence must be submitted to the jury.
Following the rationale of Myers, we hold that a defendant is not precluded from asserting a compulsion defense by denying commission of the crime where the compulsion issue is raised by the evidence.
In a criminal action, a trial court must instruct the jury on the law applicable to the theories of all parties where there is supporting evidence. State v. Davis, 236 Kan. 538, Syl. ¶ 4, 694 P.2d 418 (1985). Here, the evidence supported several theories: that Hunter committed some of the crimes, that he aided and abetted the perpetrator in some or all of the crimes, that he acted throughout under compulsion, or that he was an innocent bystander. When considering the refusal of a trial court to give a specific instruction, the evidence must be viewed by the appellate court in the light most favorable to the party requesting the instruction. State v. Myers, 233 Kan. at 616. We must determine whether there was evidence, when viewed in the light most favorable to the defendant, sufficient to require a compulsion instruction.
Hunter testified to the following pertinent facts regarding reasons for his fear of Remeta prior to the incident at the Levant elevator:
(1) On the trip from Wichita to Salina, Remeta fired the .22 three times out of the car window.
(2) When Hunter asked to be let out of the car as they reached Salina, Remeta refused and began to talk about a hitchhiker he wished he had killed.
(3) Remeta then took out two .357 Magnum bullets and asked Hunter if he thought they could kill him (Hunter).
(4) Remeta then told Hunter he had shot a girl five times with one of the weapons.
(5) Later, Remeta fired the .22 in the direction of Hunter while the car was stopped.
(6) Remeta told Hunter he had killed a man for $40 and had killed twelve other people.
With regard to the shooting of Undersheriff Albright, Hunter, Remeta, and Dunn all testified that it was Remeta who shot Albright and that Hunter, in attempting to stop Remeta, accidentally shot Dunn with the .22. Albright testified that Hunter shot him.
There were three versions of the events at the grain elevator in Levant. First, State’s witnesses Christie, Sager, and Tubbs all testified that Hunter had played ah active role in the kidnapping of Schroeder and Moore and the theft of the pickup truck. Christie and Sager testified that Hunter had a weapon. Second, Hunter testified that he had no weapon at the elevator and that he was ordered by Remeta to go to the other end of the building to watch to see if anyone tried to exit through the back door. According to Hunter, he then walked around to the back of the building and stopped there to wait to see what happened, and Remeta then ordered him back around to the other side and into the pickup. Hunter testified that he never felt he had a chance to escape. Third, Remeta testified that he had both guns at all times. He further stated that he asked Hunter to watch Schroeder and Moore at the pickup truck and that he would have shot Hunter if he had not followed orders.
In order to constitute the defense of compulsion, the coercion or duress must be present, imminent, and impending, and of such a nature as to induce a well-grounded apprehension of death or serious bodily injury if the act is not done. The doctrine of coercion or duress cannot be invoked as an excuse by one who had a reasonable opportunity to avoid doing the act without undue exposure to death or serious bodily harm. State v. Milum, 213 Kan. 581, 582, 516 P.2d 984 (1973). In addition, the compulsion must be continuous and there must be no reasonable opportunity to escape the compulsion without committing the crime. State v. Myers, 233 Kan. at 616.
The only opportunity Hunter would have had for escape would have been when he was out of sight of Remeta at the point when he went around the north side of the building at the Levant elevator. Hunter testified that Remeta came around the building and ordered him to return to the pickup. There was testimony that the total time which elapsed at the grain elevator was approximately five minutes. From the record, it is impossible to tell how long Hunter remained out of sight of Remeta. Viewed in the light most favorable to Hunter, however, and particularly in light of the fact that it was undisputed that Remeta had possession of the .357 Magnum at all times, it cannot be said that Hunter had a reasonable opportunity to escape.
Although some of the evidence supporting Hunter’s defense of compulsion came from Hunter’s own testimony, this court has held that a defendant is entitled to an instruction on his or her theory of the case even though the evidence is slight and supported only by defendant’s own testimony. State v. Sullivan & Sullivan, 224 Kan. 110, Syl. ¶ 10, 578 P.2d 1108 (1978); State v. Heiskell, 8 Kan. App. at 673. In this case, evidence came not only from Hunter, but also from Remeta and the State’s witnesses Christie, Sager, and Tubbs. There was ample evidence presented from which the jury could have concluded that Hunter’s acts were justified by compulsion.
Here, the record is replete with testimony that Daniel Remeta was a person to be feared. It was the function of the jury as the exclusive trier of fact to determine if it was believable that Hunter was afraid for his life, if such fear was reasonable, and if such fear justified any criminal acts which Hunter may have performed. When the trial judge refused the requested compulsion instruction, he effectively prevented the jury from considering the evidence presented in Hunter’s defense. This denial of the jury’s right to determine the facts constitutes reversible error. We reverse and remand this case for a new trial in accordance with this opinion. Because the resolution of this issue is dispositive of this appeal, we do not reach the other issues raised. | [
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The opinion oí the court was delivered by
Jackson, J.:
The appellee sued the two appellants in the court below for damages for personal injuries alleged to have been suffered by appellee in an automobile accident caused by both of the appellants. After a jury trial, the appellee recovered a judgment for the sum of $30,000.
In appealing from the above judgment, appellants do not argue that there was not ample evidence to show appellants’ negligence; nor do they argue that the evidence does not support the verdict of the jury as to the amount of appellee’s injuries. In fact, the ap pellants state in their joint brief in this court that, from the pleadings in the trial court, it was clear appellee was not at fault and the only issues to be decided at the trial were whether both of the appellants were responsible for appellee’s injury or only one of them, and further, that the amount of appellee’s injuries had to be ascertained.
The sole question in this appeal arises from the fact that at a pre-trial conference on March 19, 1960, the trial court allowed appellee to amend his second amended petition as to the description of his personal injuries and compelled appellants to go to trial on March 21, 1960. The amendment allowed can be shown in the following quotation from the second amended petition:
“That as a direct and proximate result of said collision plaintiff suffered whip lash injury to the neck; a severe concussion and contusions to the head and brain; his neck, back and entire spine was sprained, twisted and bruised and left permanently sore, lame and weak; he has suffered from headaches, nervousness, sleeplessness and intense pain and will continue to so suffer in the future; that plaintiff’s injuries are permanent and progressive; that plaintiff’s earning capacity has been diminished as a result of said injuries and he has been and will in the future be obligated to expend money for medicine and medical treatment, all by reason of his injuries; that he sustained a fracture of the cervical spine.
“That plaintiff herein suffered an aggravation of the pre-existing arthritic condition in the entire back and spine; that plaintiff suffered injuries to his nerves and nervous system and has sustained an anesthesia or diminution of feeling in the entire left side of his body; that he has, as a result of said injuries to his nerves and nervous system and his physical injuries, suffered a neurological development known as anxiety neurosis or traumatic neurosis.” (Emphasis supplied.)
The part of paragraph VII which is italicized above was added to the original allegations of the paragraph at the pre-trial conference.
It should also be noticed that prior to this time, appellant had been examined by Dr. William Williamson, chief neuro-surgeon and neurologist at the University of Kansas Medical Center, and that appellants had learned of this examination and had taken the deposition of Dr. Williamson on March 16, 1960. This deposition dealt with some of the particular neurological and mental symptoms set out in the above amendment and was introduced at the trial.
The record also shows that on February 15, 1960, the appellee was examined by Dr. Averill Stowell of Tulsa, who specializes in neurology and surgery. It is stated in appellee’s brief that one of the counsel for appellants was advised before the first examination by Dr. Stowell that appellee’s condition was showing neurological involvement and that appellee had an appointment with Dr. Stowell for an examination. We find no denial of the above statement.
Of course, in allowing the amendment complained about in this case, the trial court was acting under the provisions of G. S. 1949, 60-759 and also 60-2705. Under both sections of the civil code the district court is called upon to use its sound discretion in allowing or denying the right to amend. The last section refers to the matter of the court’s discretion in the language of the section.
As to section 60-759, this court said in Fiest v. Steere, 175 Kan. 1, at p. 4, 259 P. 2d 140:
“Appellant’s claim the trial court erred in permitting appellee to amend his petition, in the manner heretofore indicated, requires little if any attention. Under our code great liberality is allowed in amending and supplementing pleadings (G. S. 1949, 60-759). Moreover, this court has long been committed to the rule that the allowance or denial of requests to amend pleadings are matters over which a trial court has authority to exercise wide discretion and that its action with respect thereto will not constitute reversible error unless it affirmatively appears the amendment allowed or denied is so material that it affects the substantial rights of the adverse party and constitutes a clear abuse of judicial discretion. (See Barton v. Hackney, 170 Kan. 197, 224 P. 2d 995; Flaharty v. Reed, 170 Kan. 215, 225 P. 2d 98; also G. S. 1949, 60-760.)”
Another late case in which it was held that the trial court had abused its discretion in refusing to allow an amendment is Fisher v. Pendleton, 184 Kan. 322, p. 333; 336 P. 2d 472; 74 A. L. R. 2d 1274.
One of tire first arguments made by appellants to show that the trial court exceeded its power in allowing the amendment in the case at bar is that the amendment “substantially changed the plaintiff’s claim.” However, able counsel cited no cases to support this contention. If a quick survey of the hundreds of cases annotated in the statute book under section 60-759 is made, it must be readily apparent that the argument is without merit.
As early as the case of Irwin v. Paulett, 1 Kan. *418, at p. *426, Mr. Chief Justice Cobb speaking for this court, almost one hundred years ago, stated that the word “claim” in the statute refers to the cause of action.
Another early case was A. T. & S. F. Rld. Co. v. Rice, 36 Kan. 593, p. 601, 14 Pac. 229, where this court again followed the rule that the word “claim” as used in section 60-759 refers to the plaintiff’s cause of action. But even as to that, the court was clear that it should not be bound to a mere change of a common law form of action, and in the Rice case stated that plaintiff might well amend his imperfectly stated cause for false imprisonment to state a cause for malicious prosecution. And see Culp v. Steere, 47 Kan. 746, 28 Pac. 987; Curtis v. Schmehr, 69 Kan. 124, 76 Pac. 434; and omitting other earlier cases, see Davison v. Eby Construction Co., 169 Kan. 256, p. 260, 218 P. 2d 219. In the Davison case we held that an amendment stating further personal injuries and increasing the amount of plaintiff’s claim did not substantially change the claim or defense under the above cited statute.
The appellants in the final analysis of this matter endeavor to have the court lay great stress upon the materiality of the above amendment to the seventh paragraph of appellee’s petition. However, we find no authorities cited in their brief. While it may have been wise, out of an abundance of caution, for appellee to ask for the amendment, it is not clear that it was necessary in order for him to be able to prove the neurological matters introduced at the trial.
Cases cited by appellee, and those discovered in our own research, have shown that probably it would have been possible for appellee to introduce the neurological testimony offered at the trial without any amendment at all. In appellee’s petition it was originally alleged that he had suffered injuries to his neck, concussion to the head and brain, had twisted his neck and spine; that he suffered headaches, nervousness, sleeplessness and intense pain; and that “plaintiff’s injuries are permanent and progressive.”
It must certainly be clear that appellee had no duty to plead his evidence, and really ought not to do so, see Allen v. Brown, 181 Kan. 301, 310 P. 2d 923, where the following statement may be found:
“As to the items of damage a petitioner need not plead his evidence.” (p. 309.)
In accord with the above rule, we direct attention to the following personal injury cases: Cudahy v. Broadbent, syl. ¶¶ 1 and 2, 70 Kan. 535, 79 Pac. 126; City of Eureka v. Neville, 70 Kan. 893, 79 Pac. 162; Thompson v. Machine Co., 94 Kan. 453, 146 Pac. 1188; Consolidated Smelting Co. v. Tinchert, 5 Kan. App. 130, 48 Pac. 889.
We believe that the case of Railroad Co. v. Willey, 57 Kan. 764, 48 Pac. 25, in reality may be cited in support of the above rule, although testimony of mental infirmities were held to have been wrongfully admitted in that case. There the pleading only mentioned certain gashes on plaintiffs head. Such pleading differed materially from the pleading originally filed in the case at bar. In the Willey case the court said:
“A party is entitled to recover for all consequences which are the natural and probable result of injuries negligently inflicted upon him by another — that is, for those consequences which the common experience of men justify us in believing will result from an injury, the extent and character of which are known — without specially alleging them as grounds of recovery.” (p. 766).
Under all of the facts of this case, it would be impossible to say that the trial court abused its discretion in allowing the amendment complained about in this appeal. The appeal under such circumstances must fail, and the judgment below must be and is hereby affirmed. | [
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|
The opinion of the court was delivered by
Price, J.:
This was an action for recovery of money on a contractor’s statutory bond (G. S. 1949, 60-1413 and 60-1414).
The case was commenced in a justice court in Bourbon county by the filing of a bill of particulars seeking recovery in the amount of $240 “upon an account and indebtedness . . . for which the co-defendant, Phoenix Assurance Company of New York, a corporation, is hable under said bond.” Defendant filed no answer or other pleading in the justice court. Judgment was rendered for plaintiff and defendant appealed to the district court.
Defendant also failed to file an answer or other pleading in the district court. At the hearing of the appeal evidence was introduced by plaintiff, and defendant raised no objection that it was not within the framework of the bill of particulars. At the conclusion thereof the court rendered judgment in the amount prayed for, together with interest, in the aggregate sum of $276, and further ordered payment of an attorney fee as part of the costs in the amount of $200.
Defendant filed no motion for a new trial but. has appealed from the judgment.
This matter is a companion case to that of Russell v. Phoenix Assurance Co., case No. 42,307, this day decided and reported on this page, and what is there said and held with respect to liability under the bond, allowance of an attorney fee as part of the costs, and the scope of appellate review in the absence of a motion for new trial, applies to the case before us.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Holmes, J.:
The Kansas Department of Social and Rehabilitation Services (SRS) appeals from an order of the district court, in a proceeding to sever parental rights, which accepted the natural mother’s relinquishment of her rights to the minor child and a subsequent order directing SRS to proceed with adoption proceedings of the child.
The parties, pursuant to Supreme Court Rule 3.05 (235 Kan. lxiv), submitted the matter to this court on the following agreed statement of the case:
“CASE HISTORY:
“A petition alleging this child to be a dependent and neglected child (under present law referred to as a child-in-need-of-care) was filed on February 3,1978. The child was adjudicated on January 10, 1979, upon the stipulation of the natural mother to the allegations of the petition. The child was placed in the custody of the Department of Social and Rehabilitation Services and has remained so ever since. A petition to sever the parents’ rights was filed in February of 1980, but that matter was later dismissed by agreement of all parties. A second petition to sever the parents’ rights was filed on July 2,1982, (district court case no. 82-JN-566) and a trial on that issue was held on October 27, 28 and 29, 1982. The judgment of the court was that the natural father’s legal rights should be severed and it was so ordered. The petition as to the natural mother was again dismissed by agreement of all the remaining parties. None of these matters are at issue in this appeal.
“CURRENT MATTERS:
“A motion to terminate the natural mother’s parental rights was filed by the district attorney on February 7, 1986. It was scheduled for trial by the court on April 9, 1986. On that date the natural mother appeared in court and stated that she wished to relinquish her rights to the child. The natural mother appeared pro se. The court made inquiry into the voluntariness of the mother’s action and her understanding of her rights. The court determined the mother understood her rights, voluntarily wished to waive them and instead enter a relinquishment to her child. The court then accepted her relinquishment and advised all parties present that upon the acceptance of this relinquishment by the Department of Social and Rehabilitation Services, the child would be placed with the Department for adoptive placement. The court did not hear evidence on the state’s motion and did not enter any finding of unfitness on the part of the mother. The Department was not a party to this action and was not represented by counsel at this proceeding, although a social worker employee of the Department was present, having expected to be called as a witness at the trial of the state’s severance motion.
“A certified copy of the Journal Entry from this hearing was delivered to the Department on May 29, 1986. The Department subsequently advised the court that, in the opinion of the Department, because the mother’s relinquishment had not been made pursuant to statutory provisions, and because no finding of unfitness was made by the court nor a severance of her parental rights done as provided for in the Code for the Care of Children, that the Department did not consider the child legally available for adoption and, therefore, would be unable to consent to the adoption of the child.
“The court reviewed this matter on September 5, 1986, and determined that the court had the power to accept the mother’s relinquishment, that the relinquishment accepted in this matter was valid, and that the child was legally available for adoption. The court further ordered the Department to proceed forthwith to place the child for adoption.
“The Journal Entry of the court’s decision was filed with the Clerk of the District Court on September 23, 1986, and a certified copy was delivered to the Department on September 24, 1986. The Department filed notice of its appeal of the court’s decision on October 3, 1986.
“ATTACHMENTS
(1) certified copy of Journal Entry from April 9, 1986, hearing
(2) certified copy of Journal Entry from September 5, 1986, hearing
(3) certified copy of Department’s Notice of Appeal filed October 3, 1986.”
It should also be noted that the court reviewed the proceedings on July 3, 1986, at which time the mother of the child appeared by counsel; on July 17, 1986, when the mother again appeared pro se; and on August 1,1986, when the mother did not appear at all. A court-appointed guardian ad litem appeared on behalf of the minor child at all proceedings.
At the close of the proceedings on April 9, 1986, the court, inter alia, made the following order:
“[T]he relinquishment by [C.W.J., the child’s natural mother] is approved. Upon acceptance of this relinquishment by the Department of Social and Rehabilitation Services, all legal and physical rights to the minor child herein shall be given to the Department of Social and Rehabilitation Services with authority to consent to adoption or appropriate placement.”
At the September 5, 1986, proceedings the court again found the relinquishment was knowingly and voluntarily made and was a valid relinquishment of parental rights. The court ordered that the care, custody, and control of the child be placed with SRS for adoptive placement and ordered that SRS proceed with adoption procedures forthwith. The natural mother did not object to any of the proceedings and there is nothing in the record that would indicate she desired at any time to rescind her relinquishment of the child. The record does reflect that on May 19, 1986, she approved the journal entry of the April 9, 1986, proceeding.
It is the position of the district attorney that the Kansas code for care of children should be liberally construed to meet the best interests of the child as mandated by K.S.A. 38-1501. It is also asserted that the court, having jurisdiction of all interested parties, has the inherent power to accept a voluntary relinquishment from a parent when that is in the best interests of the child. The inherent power of the courts has been described as:
“The phrase ‘inherent powers’ is used to refer to powers included within the scope of the court’s jurisdiction which a court possesses irrespective of specific grant by constitution or legislature. Such powers can neither be taken away nor abridged by the legislature.” 20 Am. Jur. 2d, Courts § 78.
SRS, on the other hand, takes the position that because the mother’s relinquishment was not madé in strict compliance with statutory provisions, and because no finding of unfitness was made by the court nor a severance of her parental rights ordered as provided for in the Kansas code for care of children (K.S.A. 38-1501 et seq.), SRS does not consider the child legally available for adoption and, therefore, is unable to consent to the adoption of the child. It is contended the district court had no authority to accept the mother’s relinquishment when it had not been made in compliance with statutory procedures.
Statutes provide that parental rights may be terminated in two ways: (1) by relinquishment to a corporate children’s home pursuant to K.S.A. 38-112 et seq. or by relinquishment to SRS pursuant to K.S.A. 38-125 et seq.; and (2) by severance of parental rights in a proceeding pursuant to the Kansas code for care of children as set forth in K.S.A. 38-1581 et seq. Relinquishment to a corporate children’s home under K.S.A. 38-113 is not involved in the present appeal. The statutes applicable to a relinquishment to SRS are K.S.A. 38-125 through 38-129.
K.S.A. 38-125 provides:
“Any parent or parents or person in loco parentis of a child may relinquish and surrender such child to the department, and if the department shall accept said child in writing, the department shall thereupon stand in loco parentis to such child and shall have and possess over such child all the rights of a natural parent or legal guardian, including the power to place such child for adoption and give consent thereto. Minority of a parent shall not invalidate such parent’s relinquishment and surrender of said child.”
K.S.A. 38-126 requires the relinquishment to be in writing and specifies who must execute the relinquishment.
K.S.A. 38-127 provides:
“The relinquishment provided by this act shall be signed and acknowledged before the court by the person or persons by whom it is executed and shall sufficiently identify the child or children so relinquished. It shall be the duty of the court, in all such cases of relinquishment so executed, to advise the parent or parents or other person in loco parentis of such children of the consequences of the act of relinquishment.”
K.S.A. 38-128 provides:
“In all cases where a parent or person in loco parentis has relinquished and surrendered his child to the department pursuant to this act, and the judge before whom the relinquishment was executed shall have stated on the relinquishment document that the parent or the person in loco parentis had been advised by him of his rights and that the act of the parent or person in loco parentis was voluntary, all the rights of the parent or person in loco parentis shall thereupon be terminated, including the right to receive notice in a subsequent adoption proceeding involving said child.”
K.S.A. 38-129 grants the district court authority to grant visitation rights to the grandparents of the minor child. Thus it is clear that in the final analysis any relinquishment to SRS must be determined by the court after a full explanation of the parent’s rights and a finding by the court that the relinquishment is the voluntary act of the parent.
Severance of parental rights is authorized by K.S.A. 38-1583(a), which provides:
“When the child has been adjudicated to be a child in need of care, the court may terminate parental rights when the court finds by clear and convincing evidence that the parent is unfit by reason of conduct or condition which renders the parent unable to care properly for a child and the conduct or condition is unlikely to change in the foreseeable future.”
In the present case the minor child had been the subject of child care proceedings since 1978 with custody placed in SRS. The motion to sever parental rights was filed by the district attorney presumably at the request of SRS. K.S.A. 38-1529(a). On the day scheduled for hearing that motion, the natural mother of the child appeared in open court and advised the court that she desired to relinquish her rights to the child to SRS. She was fully advised of her rights and the consequences of relinquishment by the court. She subsequently approved in writing the journal entry which recited the court’s actions and approved her relinquishment. It is the position of SRS that the statutes controlling relinquishment of parental rights and severance of parental rights must be strictly complied with in order for SRS to be able to give a valid consent to a subsequent adoption. We agree that the termination of parental rights is an extremely serious matter and may only be accomplished in a manner which assures maximum protection to all of the rights of the natural parents and of the child involved. In In re Cooper, 230 Kan. 57, 631 P.2d 632 (1981), we stated:
“Virtually all jurisdictions including Kansas recognize the parents’ right of custody and control of their children are liberty interests protected by the Fourteenth Amendment Due Process Clause.” 230 Kan. at 64.
Appellant relies heavily upon our decision in Wilson v. Kansas Children's Home, 159 Kan. 325, 154 P.2d 137 (1944), which involved the relinquishment of a child to a children’s home under G.S. 1935, 38-113, the predecessor to K.S.A. 38-113. In Wilson the formalities of the statute were not strictly followed and the court found the relinquishment document to be invalid. In doing so the court relied upon the Missouri case of In re Penny, 194 Mo. App. 698, 189 S.W. 1192 (1916), and quoted from that opinion:
“ ‘Divesting a parent of his right to the custody of his child is always a serious matter, and any statute which authorizes such a proceeding must be strictly construed. When the statute requires the contract of the parent to be evidenced in a particular way, that way must be strictly followed and every prescribed step must be treated as pertaining to a right or to the divestiture of a right, rather than as directory for the mere purpose of imparting public notice of the deed.’ ” 159 Kan. at 329-30.
The statutes pertaining to adoption are likewise to be strictly construed to assure that the rights of the natural parents, the child, and the adoptive parents are fully protected. See 2 Am. Jur. 2d, Adoption §§ 5-7. There can be no greater emotional trauma and distress than that which results from an attack upon a defective adoption proceeding, perhaps years later, and which disrupts the lives of all of the participants.
SRS apparently takes the position that if there is a proceeding to sever parental rights pending, then the parent or parents can never agree to a voluntary relinquishment pursuant to K.S.A. 38-125 et seq. It relies upon a manual it has prepared for guidance of SRS employees involved in providing youth services (Kansas Manual of Youth Services). The subject of voluntary relinquishments is discussed in section 4521 of the manual, which states in part:
“If a CINC [child in need of care] petition has been filed and adjudication is pending, relinquishment is never an option. This is true whether the petition is for a CINC child or termination of parental rights. It is the agency opinion that parents facing the stress of the adjudicatory hearing could claim that they were under duress when they signed the relinquishment.”
While the objectives of SRS in seeking to protect all parties is laudable, we feel application of the internal operating procedures to the facts in this case were counterproductive and worked to the detriment of the parties involved. The issue before this court is not whether the internal operating procedures of SRS were followed to its satisfaction, but whether the court, under the facts of this case, had the authority to accept the mother’s relinquishment made in open court.
K.S.A. 38-127 requires that when a parent desires to relinquish a child to SRS, it must be done in writing and signed and acknowledged before the court. The statute further provides that it shall be the duty of the court to advise the parent of his or her rights and the consequences of the act of relinquishment. K.S.A. 38-128 provides the court must find that the parent has been fully advised and that the parent’s actions are voluntary. Obviously the court must refuse the relinquishment if it finds the parent has not been fully advised or that the relinquishment is not voluntary. The converse of that authority is that the court, having determined that the proposed relinquishment is voluntary and that the parent has been fully advised of all rights and consequences, has the power to approve the relinquishment. We do not agree with the procedural guidelines of SRS that the mere pending of a proceeding precludes any voluntary relinquishment. The court is in the unique position of being able to render an impartial determination of the parent’s true intent and desire and to protect the parent’s rights. We find no merit in the contention that judicial proceedings, per se, subject a parent to duress which might invalidate a voluntary relinquishment. Some might even speculate that the procedures of SRS could amount to duress in certain circumstances.
SRS had been familiar with the family here involved for years. It had the custody and control of the minor child and was thoroughly advised, as was the court, of the background and history of the family. It appears that if there had not been a motion pending to sever the mother’s parental rights, a voluntary relinquishment following SRS procedures would have been acceptable. If SRS had brought its forms to court and had them executed by the parent, there would have been technical compliance with the statutes. We do not believe that a knowing and voluntary relinquishment of parental rights done in open court, with all the surrounding safeguards guaranteed by the judicial process, should be subject to an arbitrary refusal by SRS to accept the relinquishment. The court had jurisdiction of the parties and the subject matter and its orders do not exceed its power and authority. To force the mother in this case to a full hearing with evidence as to her inability and unfitness as a mother would have accomplished nothing more than the court did in this case. No statute, law, or common sense requires the court to perform a useless act. In re Adoption of Baby Boy L., 231 Kan. 199, 209, 643 P.2d 168 (1982).
We hold that under the facts of this case, where all of the rights of the natural mother were fully protected by the trial court and all of the requirements of the statutes for the protection of the mother were fully met, the court had the inherent power to accept the relinquishment. We find no error in the court’s acceptance and approval of the relinquishment. We also hold that, as SRS voluntarily became a party to the proceedings and was fully represented, the order directing SRS to proceed with adoption proceedings was valid.
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|
The opinion of the court was delivered by
Holmes, J.:
This is an appeal by twenty cable television companies from an order of the Shawnee County District Court, which affirmed an order of the Kansas Board of Tax Appeals (BOTA) concerning the valuation of personal property for ad valorem tax purposes for the tax year 1983.
In 1983 the Division of Property Valuation (PVD), a division of the Department of Revenue, devised and implemented a valuation guideline to be used by county appraisers to value for tax purposes personal property held by cable television systems. Prior to 1983, there were no published directives from the PVD concerning proper assessment methods of cable television personal property in Kansas. Cable television property was typically assessed for valuation purposes using straight-line depreciation from original cost, at the rate of 10% per year down to a base of 30% of the original cost as long as the property remained in service. A trended cost method was adopted under the new 1983 guidelines in order to better determine the fair market value of the property as required by K.S.A. 75-5105a(b). The trended cost involves applying an inflation factor to the original cost of the property to establish a replacement cost, and then applying an allowance for depreciation to the trended cost to arrive at fair market value. A “Trending Factor Table” was developed which incorporated two main components; the price trend index and the economic life of the equipment. The first component, the price trend index, was based upon the Consumer Price Index (CPI). Tables were then created based upon an assumption of straight-line depreciation down to a salvage value of 10%. In addition, a 15% reduction from the CPI was made to reflect the difference between retail cost to the owner and the price the owner could obtain upon resale (CPI minus 15%). The second component, the economic life of the equipment, was established for three broad categories of property and was derived from 5 categories used by the Internal Revenue Service. Each category of equipment was assigned a useful life in order to determine an appropriate annual depreciation rate and to select the proper column on the trending factor table. Headend equipment (includes assets such as towers, antennas, preamplifiers, converters, modulation equipment, microwave equipment, and program non-duplicating systems) was assigned a 20-year economic life; subscriber connection and distribution systems (includes assets such as trunk and feeder cables, connecting hardware, amplifiers, power equipment, passive devices, directional taps, pedes tais, pressure taps, drop cables, matching transformers, multiple set connector equipment, and converters) was assigned a 15-year economic life; and program origination (includes assets such as cameras, film chains, video tape recorders, lighting, remote location equipment excluding vehicles, and testing equipment tools) was assigned a 7-year economic life.
Following issuance of the valuation guidelines, numerous appeals were filed by various cable television companies throughout the state. The BOTA consolidated the appeals and the matter was tried before it with two taxpayers, The World Company d/b/a Sunflower Cablevision, and Kays, Inc., d/b/a Ellis Cable TV and d/b/a Hays Cable TV presenting the major portion of the taxpayers’ evidence. The Kansas CATV Association was permitted to intervene, and the Director of Property Valuation was directed to intervene as a contingently necessary party.
Two issues were asserted before the BOTA; first, the taxpayers alleged the use of the CPI as an index for the trending factor was not appropriate and resulted in overestimating the replacement cost of new cable television equipment; and second, the taxpayers alleged the economic lives assigned to the various categories of property were excessive and dissimilar to the economic life assigned comparable equipment used in other industries.
In its order, the BOTA adopted the PVD’s use of the CPI minus 15% as an appropriate index to generate the Trending Factor Table. The BOTA adopted the three property categories established in the new guidelines but modified the economic life assigned to two of those three categories. The economic life of headend equipment was reduced from 20 years to 15 years, and the economic life of subscriber connection and distribution systems was modified from 15 years to 12 years.
After the BOTA denied the taxpayers’ motion for rehearing, approximately twenty taxpayers appealed the order of the BOTA to Shawnee County District Court, where it was affirmed. The taxpayers have appealed from the district court ruling. This case was transferred to the Supreme Court pursuant to K.S.A. 20-3018(c).
Appellants’ first argument on appeal is that the district court erred in holding that the BOTA made adequate and sufficient findings of fact as required by K.S.A. 74-2426(a). The statute provides in part:
“Whenever the board of tax appeals enters a final order on any appeal, in any proceeding under the tax protest, tax grievance or tax exemption statutes or in any other original proceeding before the board, the board shall make written findings of fact forming the basis of its determination and final order and the findings shall be made a part of the final order.”
It is true that the original order of the BOTA and its subsequent order on rehearing could have been more specific in setting forth the factual basis for its determinations and ultimate conclusions. The orders are quite general in stating the evidence and facts upon which the BOTA relied but scattered throughout are some specific references to the evidence and facts developed in the hearing. It is a general rule of administrative law that an agency must make findings that support its decision, and those findings must be supported by substantial evidence. Class I Rail Carriers v. State Corporation Commission, 191 Kan. 201, 208, 380 P.2d 396 (1963). The necessity for findings is to “facilitate judicial review, avoid judicial usurpation of administrative functions, assure more careful administrative consideration to protect against careless and arbitrary action, assist the parties in planning their cases for rehearing and judicial review, and keep such agencies within their jurisdiction as prescribed by the Legislature.” Kansas Public Service Co. v. State Corporation Commission, 199 Kan. 736, 744, 433 P.2d 572 (1967).
In Northern Natural Gas Co. v. Dwyer, 208 Kan. 337, 492 P.2d 147 (1971), cert. denied 406 U.S. 967 (1972), this court addressed the issue of whether an order by the BOTA satisfied K.S.A. 1970 Supp. 74-2426. In analyzing the written findings, this court determined they were mere conclusions which failed to give the basis of the Board’s determinations and final order. However, a review of the record indicated there was “nothing mysterious . . . concerning the factual basis for the Board’s order.” 208 Kan. at 347. Even though the order did not comply with the statutory requirements, the Court, over a vigorous dissent by former Chief Justice Fatzer, did not find the failure fatal to appellate review. After combing the record, the Court determined that the record reflected sufficient evidence to support the order of the BOTA. Here, we are faced with a similar situation, although the present orders are more informative than the order under review in Northern Natural Gas Co. v. Dwyer. In this case, the district court, in its memorandum decision, stated:
“Appellants contend the Board has failed to issue sufficient findings of fact as required by K.S.A. 74-2426 (1985). Although the Board makes no citation to particular passages in the transcript, the order does contain sufficient factual references to support the Board’s order. In addition, the record contains sufficient evidence supporting the Board’s conclusions.”
We agree with the district court. While a more detailed and specific order would have been preferable, the present orders, when considered along with the record, furnish a sufficient basis for meaningful appellate review. -
Next, the taxpayers assert the district court erred in holding there was substantial competent evidence to support the Board’s (1) implied finding that the pre-1983 valuation method did not achieve fair market value, (2) decision to use the PVD’s CPI-based trending factors, (3) adoption of the PVD’s three economic life categories, the economic life assigned to each category, and modification of the economic life assigned to two of those three categories, and (4) finding that steel towers should be assessed as personal property rather than as real estate.
The scope of judicial review from administrative proceedings has been stated in many cases and is also limited by statute. K.S.A. 74-2426(e), as it existed at the time of these proceedings, provided in part:
“No appeal may be taken from any order pertaining to the assessment of property for ad valorem tax purposes . . . unless . . . the order is unreasonable, arbitrary or capricious.”
The general scope of review of administrative proceedings was set forth in the often-cited case of Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 436 P.2d 828 (1968), where we held:
“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. ¶ I.
While the statute which previously existed limited the scope of review to a determination of whether the order is unreasonable, arbitrary, or capricious, it is clear that if an order is not supported by evidence or is not within the scope of the tribunal’s authority the order would at least be arbitrary, if not fraudulent or capricious.
The first evidentiary issue raised by appellants is that there is not substantial competent evidence to support the implied finding of the BOTA that the pre-1983 valuation method failed to achieve fair market value for cable television property. It appears to be the position of the appellants that once a method of valuation is adopted, it can never be changed without a finding the method is faulty. Appellants cite no law to that effect and our research has disclosed none. Even though an acceptable method of valuation may be in existence, we know of no law that would prohibit a change to an equally appropriate or better method of valuation. In setting forth the position of the PVD, the BOTA stated in its original order:
“The Department points out that prior to 1983 the cable industry’s property was assessed by depreciating original cost to a 30% residual value. This methodology was reviewed [by the Department] and it was determined there was a lack of uniformity by the industry in adhering to these general guidelines. The review also indicated that cable companies were treated differently from county to county throughout Kansas. The Department, therefore, issued specific guidelines to achieve fair market value and uniformity.”
Article 11, § 1 of the Kansas Constitution provides “[t]he legislature shall provide for a uniform and equal rate of assessment and taxation.” K.S.A. 79-501 provides for tangible personal property to be appraised “at its fair market value in money at the place where the same may be held . . . and assessed as required in K.S.A. 79-1439.” Pursuant to K.S.A. 79-1439, tangible personal property subject to property tax is to be appraised at its fair market value and assessed at 30% of that value. K.S.A. 79-503a defines “fair market value” as “the amount in terms of money that a well informed buyer is justified in paying and a well informed seller is justified in accepting for property in an open and competitive market, assuming that the parties are acting without undue compulsion.” K.S.A. 79-503a also lists factors to be considered by the assessor or appraiser in arriving at fair market value.
Here, the taxpayers are concerned about the adoption of new guidelines by the PVD when, they argue, the old guidelines were fine. K.S.A. 75-5105a sets forth the powers and duties of the Director of Property Valuation and provides, in part, that the Director shall:
“(b) Devise and/or prescribe guides showing fair market value in money of personal property. The director of property valuation shall furnish to each county one copy of each guide so prescribed and a copy or copies, at said director’s discretion, of each guide so devised. In the preparation of such guides, the director of property valuation shall confer with representatives of the county appraisers and district appraisers, and shall seek counsel from official representatives of organized groups interested in and familiar with the value of classes of property with which they are concerned.”
At the hearing before the BOTA, Henry Kingman, an appraiser with the PVD, testified they had experienced a number of cases, under the old appraisal system for cable TV systems, where the depreciated historical cost did not approximate market value. John Cooper, Supervisor of the PVD, testified it was not a policy of the PVD to allow original cost and straight-line depreciation. He also testified cable television property was the only property in the State being assessed and appraised for ad valorem taxation on the basis of original cost less straight-line depreciation to a 30% bottom; however, subsequent testimony indicated there were other exceptions. Mr. Cooper testified straight-line depreciation is keyed to a physical life and would not reflect functional or economic obsolescence of the asset. One of the reasons given by Mr. Cooper for changing the guidelines was that cable television companies did not follow the guidelines and did not stop at 30% of the original cost but kept on reducing book values until the property was written off the tax rolls completely.
The taxpayers’ argument is not persuasive. The real question before the BOTA was whether the new guidelines established a fair market value for tangible personal property of cable television companies, and not whether the old guidelines failed to do so. In any event, there was testimony before the BOTA that the old system did not arrive at fair market value for cable television system equipment. No error is shown on this point.
Next, the taxpayers assert the district court erred in finding there was substantial competent evidence supporting the Board’s decision to use the PVD’s CPI-based trending factors for valuing cable television personal property.
The CPI is compiled and published monthly by the Bureau of Labor Statistics. It is the name typically applied to the statistic that measures changes in prices of a large number of goods purchased by a theoretical family of four consisting of two adults, a fifteen-year-old girl, and an eight-year-old boy. Seven major categories are included in the CPI: food and beverage, housing, apparel, transportation, medical care, entertainment, and other, with housing making up the largest component. Appellants contend that use of the CPI does not reflect a proper trend index to use for their property because the components of the CPI bear no reasonable relationship to cable television property. It must be conceded that the original order of BOTA and the order on rehearing, which sought to clarify the initial order, are confusing in several respects, particularly as they apply to the adoption of an appropriate trending index.
At this point we note that the ideal method of valuation would be for each individual item of personal property to be separately examined and valued according to its actual physical condition and the prevailing market price for a similar item in similar condition. It is obvious that such a system would be totally impractical and expensive to the point of being confiscatory and self-defeating. Some appropriate method of mass valuation must be utilized even though individual inequities will result. The adoption of trending indices and their application to broad categories of property is an appropriate method of valuation so long as the results reasonably approach fair market value and the constitutional requirement of a “uniform and equal rate of assessment and taxation.”
In addition to the-testimony concerning the use of the CPI, there was considerable testimony about two other indices. The Producer Price Index (PPI) measures changes in price a producer would be experiencing as opposed to a consumer under the CPI. The three major components of the PPI are finished goods, intermediate goods, and crude materials. Within the PPI is a sub-index called the Capitol Equipment Index for non-manufacturing industries. A third approach would be to adopt an industry specific index such as the Standard Industrial Classifi cation Code 3674 (SIC 3674), which details equipment such as semiconductors and related devices, many of which may be used by the cable television industry. The major portion of the testimony before the BOTA concerned the application of the CPI, the PPI, and the SIC 3674 to cable television property.
In considering the various indices, the BOTA stated:
“11. The first issue to be determined is the appropriate index by which the trending factors are derived. Testimony presented by Clark, McEvoy, and Morse [representatives of the cable television industry] indicates that actual prices of some cable TV equipment have remained relatively flat for several years. Other costs associated with the cable television companies have risen greatly. The methodology available to the Board requires the selection of an appropriate index upon which to develop the trending factors. Evidence supplied by both parties failed to establish that any specific index now developed could be accepted as the appropriate index for this type of property. Taxpayers have requested that the Board change the base index upon which the trending factors are developed and establish new guidelines. While the Board concurs that it is within its power to establish new guidelines, the Board does not find sufficient evidence in the record to justify a complete divergence from the Department’s original Guide. However, the evidence does substantiate a deviation for tax years 1983 and 1984.
“The Board has carefully considered the issue of what index is most appropriate to develop the trending factor tables. Testimony indicated that the Producer’s Price Index, (hereinafter PPI), and the CPI have increased at basically the same rate, so there would be no advantage to utilizing the PPI rather than the CPI. There was voluminous testimony with respect to industry specific indexes such as SIC Codes, (Standard Industrial Classification), as well as component indices within the PPI, such as the Capitol Equipment Index. The Department’s expert witness, Dr. Darwin Daicoff, rejected using the CPI, on ‘conceptual’ grounds, because it measures the wrong kind of material. ‘Conceptually,’ he favors the PPI, and more specifically, the Capitol Equipment Index for non-manufacturing industries because that index more appropriately addresses the type of property owned by the taxpayers. As to the SIC Codes, Dr. Daicoff rejects utilization of these codes for two basic reasons; first, the types of goods that are in any SIC Classification are too broad, and secondly, the SIC Codes are addressing the price changes in the component parts, not the final product. While evidence introduced would substantiate that the individual components, e.g., semiconductors, have remained constant or decreased in cost over the last several years, other facets of the aggregate manufacturing costs have increased, e.g., wages, at approximately the same rate as the CPI. Thus, based upon the testimony of the Department’s and the taxpayers’ expert witnesses, it is apparent that an individual index designed to gauge the fluctuation in prices as to a particular product may in fact result in a more appropriate base upon which to derive fair market value as compared to a general index; however, that, in and of itself, is not sufficient evidence that a general index is inappropriate and does not reach fair market value. Testimony indicated that some prices of taxpayers’ equipment have remained flat or decreased over the last several years, while the CPI, and for that matter, the PPI, have increased. It should be noted that for any general index to increase, some of the sub-indices within that general index must also have increased, and thus, it is inappropriate to simply look at only those sub-indices which have not increased to support one’s conclusions of value.
“Kansas utilizes a mass appraisal approach to valuing property, and therefore, the Board has determined it is more appropriate to rely on a general index. In so doing, there may in fact be a difference in the valuation of various types of property with the use of general indexes because the price trends of that particular piece of property did not follow the general index. That alone does not invalidate the use of a general index. On the whole, the use of a general index is the best guide to fair market value for an entire class of property. The evidence submitted in the instant case was very limited in terms of the applicability of a specific component index as to a broad class of property. The Board is, therefore, left with no alternative but to determine what is an appropriate index to generate the trending factor. Since the Board has rejected the use of individual component indices, because they don’t reflect price changes of the final product at issue, but instead, address component parts, and no testimony has been given that there is a more appropriate general index, the Board will adopt the Department’s use of the CPI (minus 15%) as the appropriate index to generate the trending factor tables. In the Board’s judgment, this is the most appropriate index to be utilized in valuing the taxpayers’ equipment for tax years 1983 and 1984.”
In the order denying the taxpayer’s motion for rehearing, the ROTA stated:
“The taxpayers assert that ‘There is a total absence of evidence in the record supporting the Board’s finding that the Consumer Price Index (hereinafter CPI) is the most appropriate index to be utilized in valuing cable television equipment.’ The Board specifically considered the testimony of Dr. Darwin Daicoff, noting that he rejected using the CPI on ‘conceptual grounds,’ because it measures the wrong kind of material. In other words, it measures the increase or decrease in the price of property other than that owned by the taxpayers. Be that [as] it may, he did not indicate that the CPI, because it measures the ‘wrong kind of property’ did not achieve fair market value. Dr. Daicoff testified that he preferred the Producer’s Price Index (hereinafter PPI) and more specifically, the Capitol Equipment Index for non-manufacturing industries, which is within the PPI, because it more appropriately addresses the type of property owned by cable television companies. However, he noted that you cannot use component indices to measure the fluctuation in prices of an end product because there are other factors to consider besides the actual price change in the component itself. Furthermore, the Board notes that the taxpayers are raising an objection to the use of the CPI when it would be more appropriate to address the index specifically adopted by PVD and the Board, that being the CPI minus 15%. The 15% reduction in the CPI was included, in part, to account for the differences between the taxpayers’ property and that included in the CPI. Finally, the Board would note that the taxpayers should not be able to suggest an index which is most favorable to their position of value, nor should the State be able to select an index that is most favorable to their position, because the purpose and goal in the valuation process is to select an index that achieves fair market value. When all of the factors presented are taken into account, the CPI minus 15% is the index which most closely achieves fair market value of property in Kansas, for which the 1983 trending factor guidelines were promulgated to value.”
While use of the CPI may be far from a perfect method of achieving fair market value, we cannot say on this record that its acceptance by the BOTA is fraudulent, arbitrary, or capricious. It does not matter whether this Court would have reached the same decision if it had the task of determining an appropriate methodology in the first instance. For this court to find a lack of substantial evidence to support the BOTA action in adopting the CPI minus 15% index, the decision must be “so wide of the mark as to be outside the realm of fair debate.” Central Kansas Power Co. v. State Corporation Commission, 221 Kan. 505, 512, 561 P.2d 779 (1977).
The district court in the instant case stated:
“The testimony of Professor Darwin Daicoff alone provides substantial evidence to support the Board’s order. As a result, the Court would have to reweigh the evidence in order to reverse the Board’s decision. Such an inquiry is outside the scope of this Court’s review and hence would be improper.”
We agree with the district court that the adoption of the CPI minus 15% as an index for the valuation of cable television personal property for the year 1983 is supported by substantial evidence.
Next, appellants assert that there was not sufficient evidence to support the adoption by BOTA of the three broad general categories of cable television property, i.e., headend equipment, subscriber connection and distribution systems, and program origination equipment, or to support the useful life the BOTA assigned to each category of property.
Henry Kingman testified he used an Internal Revenue Service guideline as a tool to group pieces of equipment together in order to aid the local appraisers. The IRS guideline used, 72-10, is for the write-off of equipment by use of accelerated deprecia tion under the provisions of the Internal Revenue Code. The IRS guideline divides the personal property into five general categories: headend, subscriber connection and distribution systems, program origination, service and test, and microwave systems. Mr. Kingman testified he consolidated the five categories into three. The microwave system was included with the head-end equipment and the service and test equipment was included with the program origination equipment. The taxpayers did present testimony challenging the economic life assigned to each of the three categories. However, no evidence was presented challenging the equipment grouped together under each category. Accordingly, the district court did not err in finding there was substantial evidence to support the adoption by the PVD of the three categories of equipment.
Next, the taxpayers challenge the economic life applied to each of the three categories of property by the PVD and the subsequent reduction of two of them by the BOTA. The PVD adopted a useful life for headend equipment of 20 years, 15 years for subscriber connection and distribution systems, and 7 years for program origination. The BOTA reduced the economic life of headend equipment to 15 years, and that of subscriber connection and distribution systems to 12 years. It adopted the 7-year economic life recommended by the PVD for program origination equipment. The appellants contend the economic life adopted for each category is excessive and not supported by the evidence. Witnesses for the appellants testified that the useful life of certain components of each category was substantially less than that established by the PVD and less than that finally approved by the BOTA. However, on cross-examination it was conceded that some of the components had a useful life as long as or longer than those assigned by the PVD and the BOTA. Without going into detail, it appears to us that the ultimate economic or useful life established by the BOTA for each category of property is supported by the evidence and within the range of the testimony. Therefore, no error is shown.
Finally, the taxpayers argue the district court erred in finding there was substantial evidence to support the Board’s finding that steel towers owned by cable television companies should be assessed as personal property rather than, as real estate.
The initial order of the BOTA makes no reference to this issue. However, in the order denying the taxpayers’ motion for rehearing the Board stated the following:
“The taxpayers allege that there is ‘A total absence of evidence in the record supporting the Board’s finding that towers are properly classified as personal property when owned by cable television companies.’ While evidence may have been presented that would establish towers utilized by cable television companies are identical in construction and installation to those utilized by radio and television broadcasting companies, absolutely no evidence was presented, nor did the Board address, whether towers should be considered as real estate versus personal property. The taxpayers simply requested that they be treated similarly, with respect to the valuation of towers, as radio and television companies. Additionally, while there was a request for an ‘equalization’ with respect to the valuation of towers owned by various companies, no evidence was introduced into the record to establish that the towers owned by radio and TV companies are correctly valued, in general, or more properly valued as real estate versus personal property or vice versa. While evidence was presented that the construction of the towers is similar, no issue was raised as to the comparability for valuation purposes. The Board, however, would note that PVD should clarify in its 1985 guidelines how towers should be classified, in other words, as real estate or personal property, as well as any distinctions between towers that might be used by similar but non-comparable industries.”
A review of the record indicates it wasn’t until closing arguments that the taxpayers first raised the issue of the treatment of towers as real estate or personal property. No evidence was presented before the BOTA that radio towers in Douglas County were taxed as real estate while cable television towers were taxed as personal property and therefore this court cannot consider the issue on appeal. The issue of whether towers should be assessed as personal or real property was never directly presented to or determined by the BOTA.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
McFarland, J.:
This is an action by Edward E. Leeper against an attorney, Gene E. Schroer, who represented him in a personal injury action, and said attorney’s firm arising from the loss of a cashier’s check. Also named as a defendant is the First State Bank & Trust Co., the bank issuing the check. The trial court held in favor of the defendants and Leeper appeals.
The background facts are essentially undisputed and may be summarized as follows. Leeper was seriously injured in a motorcycle-truck accident in November 1983. Schroer was retained by Leeper to represent him on his claim. The claim was ultimately settled in April 1984 for $77,767.60. Schroer received an insurance draft for the settlement proceeds made out to himself and Leeper. The draft was mailed to Leeper at his Garden City address with instructions to endorse the same and return it to Schroer, whereupon Schroer would send Leeper a check on the firm’s trust account for Leeper’s share of the settlement. The draft was endorsed by Leeper and mailed to Schroer. Before Schroer could make the disbursement, Leeper telephoned Schroer to advise he wanted his share ($50,100.20) in cash. Schroer advised Leeper that this was a large sum to be carried around in cash; that it was the first such request he had ever received; but that he would check with his bank about the possibility of doing it that way. The Bank (defendant First State Bank & Trust Company) advised Schroer that this would be difficult to arrange, but did not turn down the request. Schroer telephoned Leeper and advised him of the difficulty of a cash transaction and further advised that any cash disbursal by the Bank over $10,000 would be reported by the Bank to the federal government. Leeper advised Schroer he did not want the matter to be so reported and agreed he would personally come to Topeka, receive less than $10,000 in cash, and take the rest in a cashier’s check. The date for the trip to Topeka was later set for Friday, April 20, 1984.
Late on the afternoon of April 20, 1984, Leeper telephoned Schroer stating that he was still in Garden City and wanted the proceeds mailed to him. Schroer testified he believed Leeper indicated that he wanted a cashier’s check rather than a trust account check as Leeper had been reluctant, all along, to receive a trust account check. Leeper believed a cashier’s check would be easier to cash. Normally, Schroer would have used a trust account check to disburse funds to a client. On the following Monday (April 23, 1984), Schroer caused a cashier’s check to be purchased from the defendant Bank, made payable to Leeper, for the full amount of Leeper’s share of the proceeds. The check was mailed to Leeper at his current address by first-class mail. The check was not received by Leeper. Shortly after this time, Leeper’s live-in girlfriend departed. The cashier’s check has never been presented for payment. Additional facts will be stated as necessary for discussion of particular issues.
The first issue is whether the district court erred in holding that Schroer and his firm were not negligent in sending the cashier’s check by ordinary first-class mail.
The applicable scope of review herein is clear. Where the trial court has made findings of fact and conclusions of law, the function of this court is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. Friedman v. Alliance Ins. Co., 240 Kan. 229, Syl. ¶ 4, 729 P.2d 1160 (1986); Holly Energy, Inc. v. Patrick, 239 Kan. 528, Syl. ¶ 2, 722 P.2d 1073 (1986). Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, Syl. ¶ 2, 681 P.2d 1038, cert. denied 469 U.S. 965 (1984). Stated in another way, “substantial evidence” is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. Kansas Dept. of Health & Environment v. Banks, 230 Kan. 169, 630 P.2d 1131 (1981).
Additionally, an appellate court must accept as true the evidence and all inferences to be drawn therefrom which support or tend to support the findings of the trial court, and must disregard any conflicting evidence or other inferences which might be drawn therefrom. Koch Engineering Co. v. Faulconer, 239 Kan. 101, 104, 716 P.2d 180 (1986); American States Ins. Co. v. Ehrlich, 237 Kan. 449, 452, 701 P.2d 676 (1985).
The trial court’s findings of fact concerning the defendants Schroer and the Schroer law firm are as follows:
“24. Attorneys routinely and customarily disburse settlement proceeds to their clients by sending a trust account check by first class mail.
“25. Where a client has refused a trust account check, sending a cashier’s check payable to the client by first class mail is a proper method of disbursing a client’s funds and is within the standard of care required of attorneys.”
The complained-of conclusion of law is:
“Based on the facts and circumstances presented in this case, it is the judgment of this Court that plaintiff has failed to prove any negligence by Gene Schroer; Schroer, Rice, Bryan and Lykins, P.A.; or the First State Bank and Trust Company; and that judgment should be entered against the plaintiff and in favor of all defendants, with costs of this action to be taxed to the plaintiff.”
Plaintiff contends that the defendants Schroer and the Schroer law firm were negligent in sending the settlement proceeds in the form of a cashier’s check to Leeper by first-class mail, neither insured, registered, nor certified. The only issue concerning defendants Schroer and the Schroer law firm was whether they were negligent in the manner in which they disbursed the settlement proceeds to the plaintiff. There was no claim of fraud, dishonesty or any other breach of a fiduciary duty.
Negligence is a question of fact. Baker v. City of Garden City, 240 Kan. 554, 557, 731 P.2d 278 (1987); Schmeck v. City of Shawnee, 232 Kan. 11, Syl. ¶ 5, 651 P.2d 585 (1982); DeGraeve v. Southwestern Bell Tel. Co., 9 Kan. App. 2d 753, Syl. ¶ 3, 687 P.2d 1380, rev. denied 236 Kan. 875 (1984). Negligence exists where there is a duty owed by one person to another and a breach of that duty occurs. Durflinger v. Artiles, 234 Kan. 484, 488, 673 P.2d 86 (1983). In a negligence case, the plaintiff must establish a duty of reasonable care owed by the defendant to the plaintiff, a breach of that duty, damage to plaintiff, and a causal connection between the duty breached and the damage sustained. Baker v. City of Garden City, 240 Kan. 554, Syl. ¶ 4.
Although this is a negligence action between a client and his attorney arising from the professional relationship, the claimed negligence lies in a ministerial act rather than the exercise of professional judgment. Therefore, the usual discussions of duties owed to clients by attorneys do not really fit the situation. The following illustrate the general pronouncements in the field of attorney negligence.
In 7A C.J.S., Attorney & Client § 255, pp. 460-62, it is stated:
“As a general rule, an attorney is liable in damages to his client for injury sustained by him as a proximate result of the attorney’s negligence. The negligent performance of duties imposed on an attorney, or actionable legal malpractice, is compounded of the same basic elements as other kinds of negligence, and has been likened to, and is subject to the same rules as, other forms of professional malpractice. The requisite elements of a legal malpractice action, therefore, are the existence of an attorney-client relationship creating a duty of care upon the attorney, and the failure to perform, or breach of, the duty.
“Legal malpractice or negligence consists of failure of an attorney to use such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of tasks which they undertake, and what may be negligence on the part of an attorney in any particular case must be decided by the facts and circumstances of the situation under consideration. Consequently, the attorney is liable to a client for negligence when the attorney fails in the particular case to exercise a reasonable degree of care, skill, and diligence, and he will not be liable where he acts with a proper degree of attention, with reasonable care, and to the best of his skill and knowledge.”
Likewise, 7 Am. Jur. 2d, Attorneys At Law § 199, p. 249 addresses the degree of reasonable care and skill demanded of an attorney:
“His duty to his client requires an attorney to exercise the knowledge, skill, and ability ordinarily possessed and exercised by members of the legal profession similarly situated. He is not bound to exercise extraordinary diligence, but only a reasonable degree of care and skill, having reference to the character of the business he undertakes to do. Within this standard, he will be protected so long as he acts honestly and in good faith.”
In Bowman v. Doherty, 235 Kan. 870, 686 P.2d 112 (1984), we said:
“An attorney is obligated to his client to use reasonable and ordinary care and diligence in the handling of cases he undertakes, to use his best judgment, and to exercise that reasonable degree of learning, skill, and experience which is ordinarily possessed by other attorneys in his community.” Syl. ¶ 5.
“The duty of an attorney to exercise reasonable and ordinary care and discretion remains the same for all attorneys, but what constitutes negligence in a particular situation is judged by the professional standards of the particular area of the law in which the practitioner is involved.” Syl. ¶ 6.
“Expert testimony is generally required and may be used to prove the standard of care by which the professional actions of the attorney are measured and whether the attorney deviated from the appropriate standard.” Syl. ¶ 7.
“There is a common knowledge exception to the rule requiring expert testimony in malpractice cases. Expert testimony is not necessary where the breach of duty on the part of the attorney, or his failure to use due care, is so clear or obvious that the trier of fact may find a deviation from the appropriate standard of the legal profession from its common knowledge.” Syl. ¶ 8.
Under the concepts of ordinary negligence or professional negligence (legal malpractice), the question really comes down to whether there is substantial competent evidence supporting the trial court’s findings and conclusions relative to lack of negligence proved by plaintiff. We must conclude the record supports the trial court’s determination herein. It was established that banks routinely send cashier’s checks by ordinary first-class mail. Schroer and William Hergenreter, a Topeka attorney independent of defendant attorneys, both testified that the sending of a cashier’s check by ordinary first-class mail, under the circumstances herein, was not a breach of ordinary care. Leeper presented no evidence, other than his own opinion, that Schroer’s acts constituted negligence. We conclude this issue is without merit.
The second issue is whether the district court erred in refusing to award plaintiff prejudgment interest against the Bank.
Before discussing the issue, some additional facts need to be stated. Prior to the filing of the action herein, Leeper never contacted the defendant Bank for reissuance of the cashier’s check. Schroer and Leeper had discussed the problem of the missing cashier’s check and Schroer had discussed the problem with the Bank. The Bank had liability on the original cashier’s check for five years against the holder in due course and required the posting of a bond if reissuance was to be done. Leeper was aware of the bond requirement and declined to pursue this avenue of resolution. Without the posting of a bond, Leeper could only wait out the five-year statute of limitations in order to obtain payment.
In its conclusions of law, after finding no negligence on the part of the Bank, the district court stated:
“Based on the facts and circumstances presented in this case and upon the principles of law and equity, plaintiff is not entitled to recover pre-judgment interest.
“Regarding the question of what should be done pending the running of the statute of limitations on the outstanding cashier’s check, due to the bank’s outstanding and continuing liability so long as the check remains unpresented, it is the conclusion of this court that an indemnification bond is proper. Because no negligence has been proven against any of the defendants and because the plaintiff, being the sole person to benefit, has been aware for many months that he could receive the proceeds of the check upon presentation of an indemnification bond, plaintiff is hereby required to post such a bond in the amount of $60,000.00; said figure being arrived at by considering the doubtfulness that the check will ever be presented, the amount of outstanding liability, and any possible legal fees associated therewith.
“The defendant First State Bank and Trust Company is hereby directed to segregate the proceeds of the cashier’s check in the amount of $50,100.20 and place the same in an interest bearing account, to be retained as security by the bank until such time as the plaintiff obtains an indemnification bond or the statute of limitations runs on cashier’s check number 23167 dated April 23, 1984.
“Upon the plaintiff obtaining an indemnification bond as set forth herein, or if no bond is obtained, upon the running of the statute of limitations applicable to the cashier’s check, the bank is directed to remit to the plaintiff all funds held by it in said account, the same representing the face amount of the cashier’s check plus all accrued interest from the date of this judgment.”
Leeper appears to be contending he is entitled to prejudgment interest as a matter of right rather than through the exercise of judicial discretion; hence, he claims error rather than abuse of discretion. In support of his claim of error, Leeper relies heavily on Santos v. First Nat’l State Bk. of N.J., 186 N.J. Super. 52, 451 A.2d 401 (1982), which also involved a missing cashier’s check and a claim for prejudgment interest. The Santos case contains an interesting discussion, on the nature of cashier’s checks and the unique legal issues they present. However, Santos specifically states:
“[PJrejudgment interest is not due as of right but may be allowed on equitable principles.” 186 N.J. Super, at 79-80.
Clearly, the allowance or disallowance of prejudgment interest herein was a matter of judicial discretion. We discussed the standard of review, where abuse of discretion is claimed, in Lone Star Industries, Inc. v. Secretary, Kansas Dept. of Transp., 234 Kan. 121, 671 P.2d 511 (1983), wherein we said:
“One who asserts the court has abused its discretion bears the burden of showing such abuse of discretion. Hoover Equipment Co. v. Smith, 198 Kan. 127, 134, 422 P.2d 914 (1967); Skahan v. Powell, 8 Kan. App. 2d 204, 208, 653 P.2d 1192 (1982); Lemons v. St. John’s Hospital of Salina, 5 Kan. App. 2d 161, 613 P.2d 957, rev. denied 228 Kan. 807 (1980); State v. Wright, 4 Kan. App. 2d 196, Syl. ¶ 5, 603 P.2d 1034 (1979), rev. denied 227 Kan. 928 (1980). Judicial discretion is abused when judicial action is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court then it cannot be said that the trial court abused its discretion. Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172 (1973); Cook v. Cook, 231 Kan. 391, 394, 646 P.2d 464 (1982).” 234 Kan. at 131.
See Hagedorn v. Stormont-Vail Regional Med. Center, 238 Kan. 691, Syl. ¶¶ 1-2, 715 P.2d 2 (1986).
There is no claim by Leeper that the Bank acted improperly in the issuance of the check or was, in any way, responsible for its loss. Leeper could have obtained his money prior to litigation by posting a bond. Under these circumstances, in conjunction with the totality of the circumstances herein, we find no breach of discretion by the trial court in refusing to allow prejudgment interest.
In Leeper’s docketing statement and in his statement of the issues contained in his brief, this issue relates solely to the refusal of the district court to allow prejudgment interest. In discussing this limited issue, Leeper expands it to include an allegation that the district court’s requirement of a bond was improper. It is highly questionable whether this piggybacked issue is properly before us. Nevertheless, the requirement of the bond is a matter of judicial discretion and, given the Bank’s five-year potential liability on the check against a holder in due course and the totality of the circumstances herein, we cannot find any abuse of discretion relative to the bond requirement.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Miller, J.:
The plaintiffs, Earl W. Rosenbaum, Donna Lou Rosenbaum, Stephen W. Brown, and Christa Brown, brought this action to prevent the defendant, Texas Energies, Inc., from deunitizing a unit it had formed of certain natural gas properties in Pratt County, in a part of which the plaintiffs had an interest. Defendant claimed it lacked authority to unitize the property in the first place, because of a mutual mistake in the lease agreement between Texas Energies, Inc., and the third-party defendants, Ruth S. Hillard, W. L. Walker, III, and Kathryn M. Walker, the owners of the other land in the unit. The trial court found the “Declaration of Unitization” void ab initio, upheld the action of the defendant in deunitizing the unit, and ordered reformation of the lease between Texas Engergies, Inc., and the third-party defendants. Plaintiffs appeal.
The facts are somewhat complex but undisputed. Texas Energies, Inc., is the lessee in an oil and gas. lease originally executed by Earl and Donna Rosenbaum on February 10, 1983, covering a quarter section of land, the Southeast Quarter of Section 8. Texas Energies is also the lessee of a second lease executed by the third-party defendants on October 28, 1981, covering 240 acres described as the East Half of the Northwest Quarter and the Northeast Quarter, of Section 17. The Northeast Quarter of Section 17 lies directly south of and adjoins the Rosenbaum quarter. After both leases were executed, the Rosenbaums conveyed their land to Stephen and Christa Brown, reserving one-half interest in all minerals in and under the land.
In March 1984, Texas Energies filed an affidavit indicating that gas was being produced in paying quantities from a well on the Hillard property. On the same day, it executed and filed a “Declaration of Consolidation and Unitization,” purporting to create a 240-acre production unit comprised of 80 acres of the Rosenbaum land and 160 acres of the Hillard land. The producing well is on that portion of the Hillard land included within the unit. Shortly thereafter, Texas Energies sent the landowners a “gas division order and stipulation of interest” concerning production on the unit. Mrs. Hillard refused to sign the division order, claiming it did not reflect her agreement with Texas Energies. She claimed that when she negotiated the lease terms with Darlene Butts, Texas Energies’ agent, she made it clear that she did not want her land unitized with any other land.
The Hillard lease contains a provision for unitization, which provides:
“The unitization of this lease or any portion thereof with any other lease or leases or portions thereof shall be accomplished by the execution and filing by lessee in the recording office of said county of an instrument declaring its purpose to unitize and describing the leases and land unitized, which unitization shall cover the gas rights only and comprise an area not exceeding approximately 240 acres. The royalty provided for herein with respect to gas from gas wells shall be apportioned among the owners of such royalty on minerals produced in the unitized area in the proportion that their interests in the minerals under the lands within such unitized area bear to the minerals under all of the lands in the unitized area. Any well drilled on such unit shall be for all purposes a well under this lease and shall satisfy the rental provision of this lease as to all of the land covered thereby; Provided, however, lessee shall be under no obligation, express or implied, to drill more than one gas well on said Unit.”
The number “240” in this paragraph was typed and inserted to replace “640,” the original number in the printed form lease.
Mrs. Hillard testified that Darlene Butts assured her that changing the printed “640” to “240” acres in the above paragraph of the lease would effectively preclude unitization. Mrs. Hillard testified that she had been unitized before on another lease, and did not want any part of a unitized lease again. She wanted the lease to include her 240 acres, so Darlene Butts marked out the printed figure in the lease and inserted the 240 acres to prevent unitization. Darlene Butts testified that this was one of the first leases that she secured for Texas Energies. She believed that by inserting the 240 acres and crossing out the 640 acres, this property could not be unitized. Darlene Butts made the change in the printed lease, and told Mrs. Hillard and her son that by inserting 240 and crossing out 640, the Hillard property could not be unitized.
The error was not discovered until Texas Energies sent the division order to Mrs. Hillard. Thereafter, Texas Energies filed a “Notice of Cessation of Unitized Operations” and later a “Corrected Notice of Cessation of Unitized Operations” with the Pratt County Register of Deeds. All of the disputed royalties from gas sold from this well have been paid by Texas Energies to the clerk of the district court.
The Rosenbaums and the Browns contend that the trial court erred in receiving evidence of mutual mistake regarding the Unitization Clause of the Hillard lease; that the evidence does not support a finding of mutual mistake; that even if there were a mutual mistake, the trial court erred in ordering reformation of the Hillard lease; and that the unit was valid when formed, and cannot be unilaterally terminated by the lessee without the consent of all of the lessors in the unit.
We turn first to the question of the admission of evidence of mutual mistake. Plaintiffs’ claim of error is twofold: (1) The Unitization Clause in the lease is unambiguous, and therefore parol evidence should be excluded; and (2) the issue of mistake is beyond the scope of the pleadings and the pretrial order.
The Unitization Clause of the Hillard lease, quoted above, is clear and unambiguous. This clarity, however, does not preclude the use of extrinsic evidence to show á mutual mistake. In Sidwell Oil & Gas Co. v. Loyd, 230 Kan. 77, 79-80, 630 P.2d 1107 (1981), we said:
“In order for parties to form a binding contract, there must be a meeting of the minds as to all essential terms. Phillips & Easton Supply Co., Inc. v. Eleanor International, Inc., 212 Kan. 730, 734, 515 P.2d 379 (1973). As between the original parties to a contract parol evidence to show mutual mistake may be introduced in an action to show the nonexistence of a binding contract. The rule that parol evidence is inadmissible to contradict or vary a written contract presupposes an action involving a valid existing obligation. Branstetter v. Cox, 209 Kan. 332, 335, 496 P.2d 1345 (1972). Parol evidence is admissible to show a mutual mistake which prevented the consummation of a contract that purports to be evidenced by a written instrument.”
The Rosenbaums and the Browns were not parties to the original Hillard lease; they have not acquired that lease nor have they changed their position because of the content of that original recorded lease. They gave an entirely separate lease to Texas Energies. At issue here is the validity of a Unitization Clause as between the original parties to the lease, Texas Energies and the Hillard lessors. The Rosenbaums and the Browns have not changed their position or relied upon the provisions in the Hillard lease to their detriment. The trial court did not err in admitting extrinsic evidence to prove the existence of mutual mistake in this case.
In determining the breadth of a pretrial order, the general rule calls for liberal construction. Black v. Don Schmid Motor, Inc., 232 Kan. 458, 469, 657 P.2d 517 (1983). The pretrial order in the case at bar contained two issues which may be broadly construed to include the issue of mutual mistake. These are:
“(1) The applicability of the Parol Evidence Rule. ... (3) Whether the Defendant . . . had the authority, right and power to create a valid gas unit at the time of the filing of the Declaration of Consolidation and Unitization . . . .”
It was clear to plaintiffs’ counsel that mistake was an issue. Plaintiffs’ counsel thoroughly briefed the mistake question in their trial brief on the applicability of the parol evidence rule. They noted that the Hillard lessors contended that the omission of language limiting the unitization authority was a mistake, but argued that no mistake could be demonstrated in this case.
The existence of a claim of mutual mistake was determinative of the admissibility of extrinsic evidence. It is abundantly clear from plaintiffs’ trial brief that plaintiffs understood that mutual mistake would be an issue in the trial. The trial court did not err in admitting evidence of mutual mistake and in considering that as a principal issue in the trial.
The next issue is whether the evidence supports a finding of mutual mistake. Plaintiffs claim (1) that the contracting parties have a duty to read and understand a written contract; (2) if there was a mistake, it was unilateral and therefore does not justify reformation; and (3) the testimony of Mrs. Hillard and agent Butts regarding the mistake should be discreditéd.
This court follows the general rule that a contracting party is under a duty to learn the contents of a written contract before signing it. Sutherland v. Sutherland, 187 Kan. 599, 610, 358 P.2d 776 (1961). We have interpreted this duty to include the duty to obtain a reading and explanation of the contract, and we have held that the negligent failure to do so will estop the contracting party from avoiding the contract on the ground of ignorance of its contents. Maltby v. Sumner, 169 Kan. 417, Syl. ¶ 5, 219 P.2d 395 (1950). As a result of this duty, a person who signs a written contract is bound by its terms regardless of his or her failure to read and understand its terms. Such a person is so bound, however, only “in the absence of fraud, undue influence or mutual mistake as to [the contract’s] contents.” Washington v. Claassen, 218 Kan. 577, Syl. ¶ 2, 545 P.2d 387 (1976). Thus, the rule is inapplicable where there is a mutual mistake as to the contents and meaning of the contract.
The uncontroverted evidence, which we have recited, clearly shows that both Mrs. Hillard and Darlene Butts, Texas Energies’ agent, understood and intended that the lease provisions not permit unitization. In spite of this, plaintiffs claim that the mistake in the case at bar is unilateral. Plaintiffs argue that Texas Energies cannot be held to have been mistaken because, being experienced in the oil and gas business, it must be presumed to know and understand the effect of the Unitization Clause as written. Obviously Texas Energies recognized the clause as permitting unitization when it formed the disputed unit. Plaintiffs claim that the agent’s inexperience and misunderstanding may not be used to excuse the principal. The law of agency generally imputes the knowledge of the agent to the principal. Supreme Petroleum, Inc. v. Briggs, 199 Kan. 669, 675, 433 P.2d 373 (1967). We have found no similar rule of law which imputes the knowledge of the principal to its agent. Rather, a principal is typically bound by the authorized acts and contracts of its agent. See, for example, Ford v. Guarantee Abstract & Title Co., Inc., 220 Kan. 244, 268, 553 P.2d 254 (1976). Here the agent, because of inexperience, made a mistake in the course of her employment. She informed Mrs. Hillard, erroneously, that the clause as amended would not permit unitization of the Hillard land with any other tract. To adopt the plaintiffs’ theory and impute the knowledge of Texas Energies to its agent, Darlene Butts, would effectively perpetrate a fraud upon the lessor. Texas Energies is not seeking to take advantage of the error of its agent, but has readily admitted that error and has sought to correct it. We hold that the mistake was bilateral and not unilateral. Butts’ mistake is imputed to her principal.
Plaintiffs’ final argument under this issue is that the testimony of Butts and Mrs. Hillard should be discredited because of self-interest. Mrs. Hillard’s interest is clear — if the unit is found invalid, she and her son and daughter-in-law, Mr. and Mrs. Walker, are entitled to a greater share of the royalties than if the unit is valid. As to Ms. Butts, plaintiffs assert that by claiming a mistake, she is avoiding a lawsuit by the Hillard lessors for fraud and misrepresentation. However, it is not clear that any fraud was committed. There is nothing in the record to suggest that Butts intentionally misled Mrs. Hillard. Second, there is no evidence in the record of any threat to sue her for fraud. Third, she is involved in this lawsuit, though not as a principal. Fourth, admitting her mistake has subjected her employer or her former employer to costly litigation. More than likely she has felt, or will feel, some consequences from this. Finally, if the unit is declared invalid, it would appear that the Rosenbaum lease, if not held by the unit production, will expire or has expired on its own terms for lack of development.
The district judge saw and heard the witnesses, weighed the testimony, and believed the testimony of Mrs. Hillard and Ms. Butts. It is not the role of this court to pass on the credibility of witnesses. When the trial court has made findings of fact and conclusions of law, the function of this court on appeal is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. Leeper v. Schroer, Rice, Bryan & Lykins, P.A., 241 Kan. 241, 736 P.2d 882 (1987); Holly Energy, Inc. v. Patrick, 239 Kan. 528, 722 P.2d 1073 (1986); City of Council Grove v. Ossmann, 219 Kan. 120, Syl. ¶ 1, 546 P.2d 1399 (1976). We conclude that the testimony of Mrs. Hillard and Ms. Butts provided substantial competent evidence. Their self-interest is certainly not so great as to necessitate disregard of their testimony. The evidence not only supports, but almost mandates, a finding of a mutual mistake.
Plaintiffs argue even if there was a mutual mistake, the trial court erred in ordering reformation of the Hillard lease. They .argue that reformation is inappropriate because the mistake was one of law and they contend that a mistake of law does not support reformation. However, in Flott v. Wenger Mixer Manufacturing Co., 189 Kan. 80, 88, 367 P.2d 44 (1961), we noted:
“It has been held that a mistake of law does not excuse a party to a contract, unless it be a mutual mistake of both parties thereto, and then is analogous to a mistake of fact, but if there is mutuality of mistake, either of law or of fact, the party upon whom the burden rests must allege and prove such fact. (Grant v. Isett, 81 Kan. 246, 105 Pac. 1021.)”
In 17 C.J.S., Contracts § 145 (b), we find the rule stated as follows:
“The rule that mistake of law will not avoid a contract is subject to exceptions, as where the mistake resulted in failure of the contract to express the agreement . . . .”
Later, the text states:
“Where the instrument, because of a mistake of law, does not express the agreement actually entered into, equity may afford relief, as where parties who mutually agree on the terms of a contract choose and employ legal phrases which in legal effect express a meaning different from that agreed on.”
Thus, as long as the mistake is mutual, even a mistake of law may justify relief from the contractual terms. There is no dispute, under the evidence herein, that the lease ultimately signed by Mrs. Hillard did not express the terms agreed upon: that no portion of the Hillard land could be unitized with other leased lands. Plaintiffs argue that more than mutual mistake must be shown to justify reformation, and they rely upon Janicke v. Telephone Co., 96 Kan. 309, 150 Pac. 633 (1915). The essence of Janicke, however, is that the equities'must justify reformation. The Janicke court, at 311, says:
“The mistake must be such that the parties are in effect unintentionally made to do something which would confer undue advantage or cause unjust prejudice unless corrected.”
Here, according to the testimony of Mrs. Hillard and Darlene Butts, it is clear that unitization was never intended. The effect of unitization would be to deny the Hillard lessors a portion of their royalties, which would be unjust because they never intended to share royalties from wells on their property with any other landowners. While the unitization would confer a right upon the plaintiffs to share in the royalties from the Hillard well, plaintiffs’ rights depend upon an effective unitization; without a proper unitization, plaintiffs are entitled to nothing from the well on the Hillard property.
Plaintiffs contend that the intervention of third-party rights— their rights under the unitization — precludes reformation. However, whether they acquired any rights as a result of the purported unitization depends entirely upon the validity of the unitization. Creation of a valid unit would create vested rights, but this unit was created pursuant to an invalid lease clause and therefore is not a valid unit. We hold that plaintiffs’ rights depend upon the creation of a valid unit. Since no valid unit was created, no third-party rights intervene. The trial court did not err in reforming the lease.
The final issue raised is whether a valid unit may be unilaterally terminated by a lessee without the consent of all lessors whose leases have been unitized. Since we have held that no valid unit was formed, the final issue is moot.
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|
The opinion of the court was delivered by
Miller, J.:
The defendants, Elmo Dean Dressel, Sam McHugh Webb, and Robert Willis Strickland, Jr., were each convicted of one count of attempted felony theft, K.S.A. 21-3301 and K.S.A. 21-3701, and six counts of felony theft, K.S.A. 21-3701, following a nine-week jury trial. They appealed, and the Court of Appeals reversed the convictions. State v. Dressel, 11 Kan. App. 2d 552, 729 P.2d 1245 (1986). We granted the State’s petition for review on February 27, 1987.
The charges arose from activities at Cargill’s soybean receiving and processing plant in Wichita, Kansas. Webb, a truck driver, purported to deliver and unload soybeans at that plant. Payment for the soybeans was made by check, mailed to Webb’s employer, the F & M Grain Company of Commerce City, Colorado. Dressel was a part owner of F & M and active in its operation. Defendant Strickland was employed by Cargill at the Wichita facility. His job was to weigh delivery trucks before and after unloading, a process which produces the measurements from which net delivery weight and payment are calculated. The State contended that Webb did not unload his cargo; Strickland managed to manipulate the scales to show large deliveries which were not made; and Cargill was thus defrauded when it paid for soybeans it did not receive.
All of the defendants challenge the sufficiency of the evidence to support the convictions. 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 rational fact-finder could have found the defendant guilty beyond a reasonable doubt. The appellate court looks only to the evidence in favor of the verdict to determine if the essential elements of a charge are sustained. State v. Bird, 240 Kan. 288, 298-99, 729 P.2d 1136 (1986).
We have carefully reviewed the record and find the statement of the facts, as contained in the opinion of the Court of Appeals, is correct. We quote from that opinion:
“Cargill, Incorporated (Cargill) is an agribusiness conglomerate with principal offices in Minneapolis, Minnesota. Cargill operates a soybean receiving and processing plant in Wichita, Kansas. The first step in this business is that of acquiring soybeans for processing. These beans are delivered to the plant by trucks.
“The delivering truck pulls onto a scale called a gross weight scale and the scale operator pushes a button which weighs and then stores the truck’s gross weight in a computer’s memory. This computer is capable of storing two gross weights at the same time. The truck then drives to the unload or pit area where the soybeans are dumped and elevated into storage for future use. At the same time, a sample is taken for grading purposes.
“The delivering truck, now empty, proceeds to another scale, the tare scale. The scale operator pushes the tare weight button, which causes an ‘in-truck scale ticket’ to be printed. This ticket has printed on it the truck’s gross weight and its tare weight, as well as the time and date of the tare reading. Also printed is the automatically calculated net weight of the delivery transaction. This scale ticket is used as the receipt evidencing the delivery of the beans and represents an obligation of payment on the part of Cargill.
“As the scale ticket printer prints the in-truck scale ticket, it simultaneously records the identical information on a ‘continual roll tape.’ This produces a daily cumulative record of all transactions on the scales reflecting the weights and times the tare weights were recorded.
“The scale operation is capable of handling two trucks within the stages of unloading. While one truck is at the unloading pit, a second truck can be on the gross scale. When there are two gross weights in the memory, it is the first one that is to be recorded when the tare weight button is pushed. The scale ticket printer will print a given tare weight as often as the operator engages the printer mechanism and a gross weight is available in memory to produce a new weight computation. The recording and printing of the various weights in the proper sequence is necessary to produce true results and this function is under the total control of the scale operator.
“As a security precaution, both the gross and tare scales are monitored by two closed-circuit video cameras. One camera tapes the view of the gross scale and the other of the tare scale with a distant view of the unload pit. Their signals are fed to two video monitors and two time-lapse video recorders. The recorders also reflect a time and date for each frame recorded.
“In late April and early May 1983, David Larson, an accountant at the Wichita facility, had an opportunity to view several of these videotapes. Since he observed some unusual activity, several Cargill employees from Minneapolis came to Wichita on May 10 to view the tapes.
“Review of the tapes, in conjunction with an analysis of unloading documents, disclosed several discrepancies in the unloads made by a particular F & M Grain Company (F & M) truck between April 25,1983, and May 12,1983. First, the F & M truck consistently veered sharply to the right as it came out of the unload shed onto the tare scale. Second, the tare weight of the F & M truck was ‘punched in’ within one or two minutes of when the previous truck received its tare weight. Third, the tare weight of the F & M truck was consistently similar to the tare weight of the truck immediately preceding it. Fourth, the driver of the F & M truck did not get out of his vehicle while it was stopped on the tare scale. Fifth, the F & M truck, which was supposedly coming from Commerce City, Colorado, made frequent unloads at the plant, often two unloads per day. Sixth, the license tag on the F & M truck varied, depending on whether the truck was making a morning or afternoon unload. Finally, the tarp on the F & M truck did not move while the truck was in the unloading pit.
“On May 12, 1983, several Cargill employees set up surveillance to watch the F & M truck. David Larson observed that the truck, driven by defendant Sam McHugh Webb, was improperly positioned over the unload pit and that the truck moved slowly onto the tare scale. In addition, Larson noted that after the truck cleared the area, it was traveling in low gear emitting black smoke and ‘hugged’ the road. Larson concluded that the F & M truck had not unloaded any soybeans.
“Ted F. Neises, Jr., who was near the F & M truck, also concluded that the truck had not made a delivery since he did not see or hear any soybeans being unloaded. Defendant Robert Willis Strickland, Jr., was the Cargill scale operator at the time of this delivery.
“On May 13, 1983, Cargill employees contacted the Kansas Bureau of Investigation. Several special agents, assisted by Cargill employees, conducted an investigation concerning the activities of the F & M truck. On May 17, 1983, David Larson and KBI special agent Ed Bartkoski observed the F & M truck parked in the parking lot of a west Wichita motel. Later that day, they saw Webb and the third defendant, Elmo Dean Dressel, leave the motel in a brown pickup truck. Webb drove the pickup to the Cargill plant and circled the parking lot twice. Strickland was not working the scales on this date.
“On May 18,1983, Larson and Bartkoski observed the F & M truck, driven by Webb, make a bona fide unload. While making this unload, the truck was in the unload pit for approximately two minutes. Following the delivery, Webb returned to the motel where he was met by Dressel. They had been staying in the same motel room. Subsequent testing by the state grain inspection department revealed that the soybeans delivered were sour, a condition created by damp storage and the lack of proper air circulation. The videotape of this transaction was recorded over on June 6, 1983. This tape was never in the possession of the KBI and it was the policy of Cargill to keep the tapes for 90 days.
“On April 26, 28, 29 and May 2, 3, and 4, 1983, Cargill issued checks to F & M for soybeans allegedly delivered on those dates. Each check was in excess of $100. The checks, which were subsequently cashed, were mailed to 6900 E. 53rd Place, Commerce City, Colorado, a warehouse leased by Dressel. Checks were also issued for the May -11 and 12, 1983, ‘deliveries’; however, payment was stopped on these two checks.
“On May 26, 1983, Dressel, Webb, and Strickland were charged with eleven counts of theft by deception. According to the complaint, the defendants deceptively obtained control over money belonging to Cargill on April 26, 28, 29, and May 2, 3, 4, 5, 6, 11, and 12, 1983. Ultimately, the defendants were tried for attempted theft in connection with the May 12 transaction and theft by deception in connection with the transactions of April 26, 28, 29, and May 2, 3, 4, and 11, 1983.
“On October 28, 1983, James Z. Hernandez entered his appearance as special counsel to assist the district attorney in prosecuting the case against the defendants. Mr. Hernandez was hired by Cargill.” 11 Kan. App. 2d at 552-54.
Defendants point out that there was no evidence before the jury regarding the precise number of pounds or bushels of soybeans missing from the Cargill inventory. Even so, “a verdict of guilty in a criminal case will not be disturbed on appeal if there is substantial evidence from which a jury could find guilt beyond a reasonable doubt, even though the evidence is entirely circumstantial.” State v. Bird, 240 Kan. at 299.
There was direct evidence that all of the allegedly fraudulent F & M “unloads” were made while defendant Strickland was on duty for Cargill at his weight station. Dressel and Webb were seen circling the Cargill facility on a day when Strickland was not on duty; no delivery was made on that date. Webb was driving the truck and Strickland was on duty when each challenged delivery was made. The F & M truck consistently veered to the right as it came onto the tare scale, which allowed the scale operator time to generate a false tare weight. The tare weight of the F & M truck was entered within one or two minutes of the entry of the previous truck’s tare weight, or before the proceeding truck left the tare scale, and was consistently similar to the weight of the previous truck. The F & M truck’s gross weight, prior to its “unloads,” showed little variance from day to day, yet its tare (unloaded) weight varied by thousands of pounds. When the F & M truck was under surveillance, eyewitnesses did not see or hear any soybeans being unloaded. Additionally, and unlike that of other trucks, the tarp on the F & M truck did not move while the truck was being “unloaded.” While this evidence is largely circumstantial, it is clear that Cargill paid substantial sums of money to F & M and, given the circumstances surrounding the purported deliveries, it is not unreasonable to infer that no soybeans were actually delivered. As such, there is evidence of a loss by Cargill in the form of money paid to F & M.
Dressel argues that there was insufficient evidence of criminal intent to support his conviction. He was shown to be part owner of F & M; he was seen with Webb in Wichita during the time the offenses were committed; and the payments for the fraudulent deliveries were sent to an address which Dressel maintained in Colorado. Considering the evidence in the light most favorable to the prosecution, as we are required to do, we hold that there is an abundance of substantial competent evidence to support the jury’s verdict and the convictions.
The principal issue on appeal concerns the matter of discovery. Much of the evidence of this case was gathered by Cargill personnel, both before and after the arrest of the defendants. Prior to trial, defense counsel filed a number of motions for discovery and for sanctions for destruction of evidence. On appeal, they are primarily concerned with four items of evidence: Cargill’s inventory for the year 1983; results of tests allegedly conducted by Cargill concerning the synchronization of clocks on the gross and tare scales and continuous roll tape; tests conducted by Cargill with an F & M truck; and a tape of the May 18, 1983, bona fide unload which was destroyed later by Cargill employees.
The trial court denied defendants’ discovery motions and declined to impose sanctions for destruction of the May 18 tape. The trial court ruled repeatedly that Cargill was not a party to the criminal case; that the trial court had no jurisdiction over it; and that while it could not order a nonparty to produce documents under K.S.A. 22-3212, defendants could subpoena the records and the court would enforce the subpoena. Defendants contend that the trial court erred in ruling that it was without jurisdiction to compel the complaining witness, Cargill, Inc., or the attorney Cargill retained to assist the prosecution, James Hernandez, to participate in discovery, and in failing to impose sanctions for the destruction of the May 18 tape.
The Court of Appeals reversed the trial court and, in ruling upon this issue, said:
“The complaining witness is not required to employ private counsel to assist the district attorney. This is a statutory privilege and with it should go certain responsibilities. Cargill’s attorney had knowledge and control over the items requested or, at the very least, had the ability to become knowledgeable of them. The State cannot violate the constitutional right of a defendant to discover evidence that is favorable or material to his guilt or innocence on the mere assertion that the district attorney has no control over an attorney who is assisting him. Cargill did not hire the attorney to represent them, they hired an ‘associate counsel’ to assist the district attorney. Fundamental fairness requires the asso ciate counsel allowed under K.S.A. 19-717 to be bound by the discovery requirements of our criminal procedure. To rule otherwise would allow a complaining witness to have ultimate control over the case.” 11 Kan. App. 2d at 557-58.
Under the Court of Appeals’ ruling, any corporation which hires an attorney to assist the prosecuting attorney makes all of its corporate files and records discoverable under K.S.A. 22-3212, assuming they are relevant to the issues. If, however, the corporation does not hire an attorney to assist the prosecuting attorney, none of its files or records are subject to discovery under that statute. The ruling by the Court of Appeals would most certainly discourage, if not completely end, the engagement of assistant counsel by the injured party in such cases. We do not find this result desirable.
Moreover, the State did not deprive the defendants of discovery because the State did not have control over the files and records of Cargill. Cargill was not a party to this criminal prosecution, and the trial court did not err in ruling that it had no jurisdiction over Cargill, and no authority to compel discovery from it pursuant to K.S.A. 22-3212.
Failure to impose the discovery mandates of K.S.A. 22-3212 on a complaining witness does not foreclose discovery; it merely forecloses one method of discovery. Criminal defendants have the right to subpoena witnesses and to compel the production of documents. This right is statutorily provided by K.S.A. 22-3214 and was explicitly recognized by this court in State v. Humphrey, 217 Kan. 352, 361, 537 P.2d 155 (1975). Further, to adopt the rule announced by the Court of Appeals would place defendants in a different position depending on whether the complaining witness has hired a private attorney to assist the prosecutor. If a private attorney has been hired, all relevant records of the complaining witness would be discoverable under K.S.A. 22-3212; if a private attorney has not been hired, such records would be available only by subpoena duces tecum. We see no reason for such a distinction. Finally, we do not believe that failure to make a prosecuting witness, who has hired an attorney to assist the prosecutor, subject to the K.S.A. 22-3212 discovery rule would give the complaining witness “ultimate control over the case,” as suggested by the Court of Appeals. The complain ing witness would be in exactly the same position as other complaining witnesses — subject to make disclosures in response to subpoena.
We therefore decline to adopt the broad rule announced by the Court of Appeals. We recognize, however, that participation of privately retained counsel in a criminal prosecution creates special problems with regard to criminal defendants’ rights to discovery and the fiduciary relationship between the attorney and his or her client. We therefore offer the following guidelines and rules to govern discovery when a complaining witness has hired an attorney to assist in a criminal prosecution.
K.S.A. 22-3212 governs discovery in a criminal trial. It provides in pertinent part:
“(1) Upon request, the prosecuting attorney shall permit the defendant to inspect and copy or photograph any relevant (a) written or recorded statements or confessions made by the defendant, or copies thereof, which are or have been in the possession, custody or control of the prosecution, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney; (b) results or reports of . . . scientific tests or experiments made in connection with the particular case, or copies thereof, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney. . . .
“(2) Upon request, the prosecuting attorney shall permit the defendant to inspect and copy or photograph books, papers, documents, tangible objects, buildings or places, or copies, or portions thereof, which are or have been within the possession, custody or control of the prosecution, and which are material to the case and will not place an unreasonable burden upon the prosecution.” (Emphasis supplied.)
Mr. Hernandez was employed by the prosecuting witness to assist the county attorney pursuant to K.S.A. 19-717. That statute reads:
“That the prosecuting witness in any criminal action or proceeding may, at his own expense, employ an attorney or attorneys to assist the county attorney to perform his duties in any criminal action or proceeding under any of the laws of the state of Kansas, and such attorney or attorneys shall be recognized by the county attorney and court as associate counsel in such action or proceeding, and no prosecution shall be dismissed over the- objection of such associate counsel until the reason of the county attorney for such dismissal, together with the objections thereto of such associate counsel, shall have been filed in writing, argued by counsel, and fully considered by the court.”
Mr. Hernandez was not a “prosecuting attorney” as defined by K.S.A. 1986 Supp. 22-2202(17), a “temporary county attorney,” as defined in K.S.A. 19-715(b), or a “special prosecutor,” one who is temporarily appointed by the court to replace the absent, sick, or disabled county attorney. K.S.A. 19-711. As the Court of Appeals observed, he was merely associate counsel, employed to assist the prosecuting attorney, and did not have control over the case. See State v. Dressel, 11 Kan. App. 2d at 557, and State v. Berg, 236 Kan. 562, 694 P.2d 427 (1985).
Because an attorney hired pursuant to 19-717 is not a “prosecuting attorney,” the requirements of 22-3212 do not explicitly apply. K.S.A. 22-3212 imposes discovery requirements upon the “prosecuting attorney.” An attorney hired pursuant to 19-717 is, however, hired to assist the prosecution. As such, he or she may not be relieved of all criminal discovery requirements. The criminal defendant’s interest in complete discovery, however, must be balanced with the attorney’s obligation to his or her client. An attorney is obligated to act in the best interests of his or her client which, in the case of an attorney hired pursuant to 19-717, is the complaining witness who retained the attorney’s services. State v. Berg, 236 Kan. at 568. We believe the appropriate balance between these interests is to require an assistant attorney hired pursuant to 19-717 to comply with requests under 22-3212 to the extent those requests concern items within the attorney’s possession, custody, or control. That is, he or she is not required to facilitate the defendant’s acquisition of those items the existence of which is known, or by the exercise of due diligence may become known, to that attorney. This rule will afford some protection to the confidential relationship between attorney and client and some protection to the criminal defendant’s right to discovery. This compromise is necessary because of the peculiar role of an attorney who is privately retained by a complaining witness to assist in a criminal prosecution.
One additional disclosure requirement is imposed on an attorney hired pursuant to 19-717. Such an attorney, like all attorneys in this state, is subject to the Code of Professional Responsibility set forth in Rule 225 (235 Kan. cxxxvii) of this Court. Certain provisions of that Code are pertinent to any discussion of the duties and responsibilities of an attorney retained pursuant to K.S.A. 19-717 to assist the public prosecutor. These provide as follows:
“CANON 1
“DR-1-102 ....
“(A) a lawyer shall not:
“(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
“(5) Engage in conduct that is prejudicial to the administration of justice.
“CANON 7
“DR 7-102 Representing a Client Within the Bounds of the Law.
“(A) In his representation of a client, a lawyer shall not:
“(1) File a suit, assert a position, conduct a defense, delay a trial, or take other action on behalf of his client when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another.
“(3) Conceal or knowingly fail to disclose that which he is required by law to reveal.
“(4) Knowingly use . . . false evidence.
“(5) Knowingly make false statement of . . . fact.
“(6) Participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false.
“(7) Counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent.
“(8) Knowingly engage in other illegal conduct or conduct contrary to a Disciplinary Rule.
“(B) A lawyer who receives information clearly establishing that:
“(1) His client has, in the course of the representation, perpetrated a fraud upon a person or tribunal shall promptly call upon his client to rectify the same, and if his client refuses or is unable to do so, he shall reveal the fraud to the affected person or tribunal.
“DR 7-103 Performing the Duty of Public Prosecutor or Other Government Lawyer.
“(B) A public prosecutor or other government lawyer in criminal litigation shall make timely disclosure to counsel for the defendant, or to the defendant if he has no counsel, of the existence of evidence, known to the prosecutor or other government lawyer, that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment.”
The thrust of DR 1-102 and DR 7-102 is that the lawyer must not knowingly participate in a suit when the lawyer knows that it is based upon false or fraudulent evidence. There is no suggestion of any such conduct in this case. DR 7-103 requires the public prosecutor to disclose the existence of evidence known to the prosecutor that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment. While DR 7-103 explicitly applies only to the public prosecutor or other government attorney, an attorney who is privately retained to assist in a criminal prosecution should not be allowed to withhold evidence which might exculpate the accused. The general requirements of DR 1-102, DR 7-102, and DR 7-103 take on special importance when an attorney assists in a criminal prosecution. Because of these ethical considerations and the nature of such an attorney’s role in criminal prosecution, we hold that a lawyer who is retained under K.S.A. 19-717 to assist the public prosecutor is obligated under DR 7-103 to make the same disclosure of evidence known to him or her which would tend to negate guilt, mitigate the degree of the offense, or reduce the punishment as is the prosecutor. In the case at hand, if Mr. Hernandez knew of the existence of such evidence, he was under a duty to disclose it. If, for example, he knew that Cargill’s inventory for the entire year 1983 showed no loss of grain at the Wichita facility, or showed no loss during the critical period during which the charges against these defendants arose, or if the inventory showed much less shortage than that which was the subject of criminal charges, he would be obligated to disclose the existence of that evidence to the defendants. Such was not the case here, and there is no suggestion whatsoever in the record of any unethical conduct on the part of Mr. Hernandez.
In summary, an attorney hired by the prosecuting witness to assist the prosecutor must participate in discovery pursuant to K.S.A. 22-3212 by disclosing requested evidence which is in the attorney’s possession, custody, or control. Additionally, the attorney must disclose any evidence known to him or her which will “tend to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment.” He or she is not required, however, to search for documents and other records of the prosecuting witness which might conceivably be helpful to the defense. The prosecuting witness is not a party to the action and its records are not in the possession of the State. A trial court has no authority to compel discovery from the complaining witness pursuant to K.S.A. 22-3212.
With these rules in mind, we turn to the specific items requested by defendants. Defendants were provided with an inventory, as the Court of Appeals noted in its opinion, which apparently included only the loss for the elevator area, and not the loss for the entire facility. A Cargill employee testified, out of the hearing of the jury, that the entire inventory would show that Cargill lost some 99,000 bushels of soybeans for the period between March 1, and May 31, 1983, and that an inventory for the period between August 1982 and August 1983 would show that Cargill lost more than 99,000 bushels of beans. The charges on which defendants were convicted involved fraudulent deliveries of slightly more than 15,500 bushels of soybeans. The second criminal case, which involved other people, involved some 10,000 bushels of beans, according to Cargill’s employee. It is not clear how this inventory would have been beneficial to the defendants. As such, even if it was known to Mr. Hernandez, he was not required by DR 7-103 to disclose it. There is no indication Mr. Hernandez had the complete inventory in his possession, custody, or control. Significantly, the Cargill employee who testified about the inventory offered to furnish further information, but defendants did not follow up and secure that information. They did not cause a subpoena for the specific inventory to be issued and enforced. In short, they complain that they were not furnished with it, but they made no sincere effort to secure it, and they make no showing that it would have been exculpatory. We find no prejudice and no reversible error.
As to the June 2 tests showing how fast a truck could be unloaded, the State provided to defense counsel a document titled “Results of Tests Conducted June 2, 1983 by Cargill Employees.” Although defense counsel characterized these as incomplete, there is no showing in the record that there were other more complete written reports of these tests or that the State or Mr. Hernandez had any further reports. The people who conducted the tests were called as witnesses and were subject to full cross-examination. All of this evidence was before the jury. If defendants wished to call other witnesses who were present when these tests were conducted, they were free to do so.
All of the information regarding “tests” conducted concerning the synchronization of the clocks on the gross and tare scales and the continuous roll tape was apparently furnished to the defendants. Witnesses testified that the time clocks were not synchronized and that the clocks were reset whenever there was a power outage, and thus tests conducted sometime after the critical period would not appear to reflect the precise degree of synchronization at the time of the fraudulent deliveries. We find no evidence that there were written test reports which were not furnished to defense counsel.
Finally, we come to the videotape of May 18, 1983. This was the only tape that showed a bona fide unload of soybeans by F & M. There was no criminal charge filed regarding that unload, and witnesses testified as to the time it took to unload that truck. Cargill employees recorded over that tape, and thus it was not available for trial. Defendants claim the tape was important because it showed a bona fide unload could be completed in less than two minutes. The trial court offered to let defendants recreate this bona fide unload, but defendants did not accept that offer. Neither the State nor Mr. Hernandez destroyed the tape; Cargill employees utilized the tape to record another unload, perhaps unaware that the tape of a bona fide unload, not the subject of criminal charges, might be relevant in the later criminal trial. Another option was readily available: the recreation of the bona fide unload with the same truck, at the same scale facility, with the same load weight. We find no prejudicial or reversible error.
Next, defendants contend that they were misled by misleading and erroneous statements by the prosecution. The State contended that it was impossible to unload a truck in two minutes. There was evidence, later in the trial, that a truck could be unloaded in that time. The prosecution disclosed that the three clocks in the unloading area were not synchronized; later, the evidence indicated that the clocks were only off a few seconds on the dates of the defendants’ “unloads.” Defendants claim that this change, coupled with the unavailability of precise information on the degree of synchronization, so prejudiced them that a new trial is mandated.
We do not find this argument persuasive. The degree to which the clocks were out of synchronization was merely clarified as the trial progressed. Any alleged ‘tests’ performed later would not disclose the state of synchronization of the three clocks at the time of the disputed unloads. Further, the videotapes and continuous roll tapes concerning the questionable transactions, which were in evidence, comprise the only physical evidence of the clock times on the critical dates. Those tapes were apparently available to the defendants after the preliminary examination. Defendants were not misled or prejudiced.
Next, did the trial court err in prohibiting the defense from commenting to the jury that the May 13 unload was bona fide until evidence of its legitimacy was presented? We think not. Defendants were not charged with an offense in connection with that transaction, but the tape of that unload was offered by the State and received into evidence. The State presented extensive evidence that the May 13 unload was not a legitimate delivery. The truck veered sharply to the right as it approached the tare scale; the tarp did not move while the truck was supposedly unloading; and the truck’s tare weight was recorded before the truck came to a complete stop on the tare scale. The trial court refused to let defense counsel argue to the jury that the May 13 unload was bona fide until some evidence was presented that it was a legitimate unload. As we said in State v. Bradford, 219 Kan. 336, 340, 548 P.2d 812 (1976), “No rule governing oral argument is more fundamental than that requiring counsel to confine their remarks to matters in evidence.” The trial court did not err in requiring affirmative evidence that the May 13 unload was legitimate before allowing the defense to argue that to the jury.
Finally, defendant Dressel contends that the trial court committed error in preventing Dressel from presenting evidence of another similar criminal case. Defendant Strickland and a Mr. Helmer were apparently charged in another case with a similar theft by deception from Cargill at its Wichita facility. Dressel sought to introduce evidence concerning that case to establish that any losses claimed by Cargill were attributable to Helmer and Strickland, rather than to these defendants. The trial court would not admit evidence of the Helmer case until evidence was introduced establishing that the losses attributable to Helmer and Strickland occurred at about the same time and were similar in amount to the losses herein. Dressel claims that this denied him the opportunity to present his theory of defense, and that he should have been permitted to introduce any evidence that is relevant to the case. What he overlooks is that the foundation requirement imposed by the trial court was not an arbitrary threshold, but was necessary to render the evidence relevant. Absent a showing that Cargill’s losses could be traced to the Helmer defendants, evidence of this other case is not relevant to the case at bar. We find no error.
For the reasons stated above, the judgment of the Court of Appeals is reversed, and the judgment of the trial court is affirmed. | [
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|
The opinion of the court was delivered by
McFarland, J.:
This is a declaratory judgment action brought by Forum Insurance Company seeking a determination of its liability under an aviation insurance policy. The liability question arose when an airplane insured by plaintiff crashed near Wichita on November 12, 1985. Four people were killed in the crash, including the pilot. One passenger, Stephen Shogren, survived. The eleven defendants include the personal representatives of three of the deceased persons, the surviving passenger, and various firms named as insureds in the policy and individuals connected therewith. The district court entered judgment on the pleadings in favor of the defendants and the insurance company appeals therefrom.
The aviation policy was issued to Seitz Aviation, Inc., which is owned by Charles Seitz. Declarations amendments show the following to be additional insureds: J & J Partnership, c/o Jack Ranson; Ranson and Company, Inc.; United Securities, Inc.; and C & J Enterprises. Decedent Joseph Kreutzer is alleged to have been a partner in the J & J Partnership and a director and vice-president of United Securities, Inc. At the time of the crash, decedent George Van Riper is alleged to have been an officer and director of Ranson and Company, Inc.; Stephen Shogren is alleged to have been a director and president of United Securities, Inc.; and the deceased pilot, James D. Gass, is alleged to have been an employee of Seitz Aviation, Inc. Decedent Donald Bell was an attorney.
The insurance company brought this action seeking a determination that exclusion (j) of the policy relieved it from liability on, or any duty to defend against, any claims arising from the deaths of Kreutzer, Van Riper, and Gass or any claim for injuries sustained in the crash by Stephen Shogren. The exclusion provides:
“The following exclusions apply to all sections of the policy:
The Policy does not apply-—
(j) to any claim or suit by one Insured, its agents, servants or employees against any other Insured, its agents, servants or employees.” (Emphasis supplied.)
The insurance company contends that inasmuch as Kreutzer, Van Riper, Gass, and Shogren were each employees of insureds, exclusion (j) relieves it of any liability to pay any judgments rendered against the insureds on such claims or to defend its insureds on such claims. Any claim arising from the death of attorney Bell is not alleged to be subject to the exclusion.
The district court did not determine on the merits whether exclusion (j) of the policy excluded coverage herein. Rather, the district court determined that all exclusions in the base policy had, themselves, been excluded by virtue of an endorsement to the policy. The endorsement provided in pertinent part:
“AIR TAXI OPERATOR POLICIES OF INSURANCE FOR AIRCRAFT BODILY INJURY AND PROPERTY DAMAGE LIABILITY
“The policy to which this endorsement is attached is hereby amended to assure compliance by the Named Insured, an air taxi operator, providing services in air transportation, with the provisions of Part 298 of the Economic Regulations of the former Civil Aeronautics Board, now the Office of Aviation Operation of the Department of Transportation.
“1. In consideration of the premium stated in the policy to which this endorsement is attached, the Insurer hereby agrees to pay, within the limits of liability for coverages specified in the policy, all sums which the Named Insured shall become legally obligated to pay as damages for bodily injury to or death of persons or for loss of or damage to property of others, resulting from the Named Insured’s negligent operation, maintenance, or use of aircraft in ‘air transportation,’ as that term is defined in the Federal Aviation Act of 1958. The liability of the Insurer is not contingent upon the solvency or freedom from bankruptcy of the Named Insured.
“2. The Insurer also agrees that, unless replaced in accordance with the former Civil Aeronautics Board Economic Regulations paragraph 298.45(b), the policy to which this endorsement is attached shall not be cancelled or withdrawn or modified to reduce the limits of liability by the Insurer until after 10 days’ written notice by the Insurer to the Office of Aviation Operation of the Department of Transportation at its offices in Washington, DC, which 10 day notice period shall commence to run from the date such notice is actually received at the Office of Aviation Operation of the Department of Transportation. In addition, the Insurer agrees to notify the Office of Aviation Operation of the Department of Transportation 10 days before the expiration date of the attached policy of insurance, unless the policy has been renewed. Further, the Insurer agrees to notify the Office of Aviation Operation of the Department of Transportation within 5 days after receipt of notice of cancellation of the policy by the Insured of this action by the Insured.
“3. The Insured further agrees that within the limits of liability for coverages specified in the policy, no term, condition, limitation, stipulation, or other provision contained in the policy or any endorsement attached thereto or any violation thereof by the Named Insured, except EXCLUSIONS contained in this endorsement, shall relieve the Insurer of liability with respect to such bodily injury or property damage. In this connection, the Insurer expressly agrees that no violation by the Named Insured of any safety or economic rule, regulation, order, or other legally imposed requirement of the Federal Aviation Administration or the Office of Aviation Operation of the Department of Transportation, and no special waiver issued by the Federal Aviation Administration or the Office of Aviation Operation of the Department of Transportation shall affect the insurance afforded under this policy.
“4. The Insurer further agrees that while an aircraft owned by the Named Insured and declared in this policy is withdrawn from normal use because of its breakdown, repair, servicing, loss, or destruction, such insurance as is afforded by this policy with respect to such aircraft applies also with respect to another aircraft of similar type, horsepower, and seating capacity not so owned while temporarily used as the substitute for such aircraft.
“5. The EXCLUSIONS of the policy to which this endorsement is attached are deleted and are replaced by the following exclusions:
“EXCLUSIONS. Unless otherwise provided in the policy of insurance, the liability insurance afforded under this policy shall not apply to:
“a. Any loss against which the Named Insured has other valid and collectible insurance, except that the limits of liability provided under this policy shall be excess of the limits provided by such other valid and collectible insurance up to the limits certified in a certificate of insurance, but in no event exceeding the limits of liability expressed elsewhere in this policy;
“b. (Reserved)
“c. Liability assumed by the Named Insured under any contract or agreement, unless such liability would have attached to the Insured even in the absence of such contract or agreement;
“d. Bodily injury, sickness, disease, mental anguish, or death of any employee of the Named Insured while engaged in the duties of his employment, or any obligation for which the Named Insured or any company as his Insurer may be held liable under any Workman s Compensation or Occupational Disease Law;
“e. Loss of or damage to property owned, rented, occupied, or used by, or in the care, custody, or control of the Named Insured or carried in or on any aircraft with respect to which the insurance afforded by this policy applies;
“f. Personal injuries, or death, or damage to, or destruction of property caused directly or indirectly by hostile or warlike action, including action in hindering, combating, or defending against an actual, impending, or expected attack by any government or sovereign power, de jure or de facto, or military, or naval, or air forces, or by an agent of such government, power, authority, or forces; the discharge, explosion, or use of any weapon of war employing atomic fission or atomic fusion, or radioactive materials; insurrection, rebellion, revolution, civil war, or usurped power, including any action in hindering, combating, or defending against such an occurrence; or confiscation by any government or public authority;
“g. Any loss arising from operations within any geographic areas other than the following:
1’ Between any point in the “area of operation” described in the Operations Specifications issued by the FAA in conjunction with its issuance of the ATCO Operating Certificate to the air taxi operator named hereon. Provided, however, that if one or more of the 48 contiguous states is listed in such area of operation, all 48 contiguous states will be included within the coverage of insurance under this endorsement; and
2’ Within any other geographic area for which coverage is specified in the policy of insurance;
And provided further, that a loss caused by mere misadventure in flying over or landing in any geographic area not specified in 1’ or 2’ above shall not be excluded.
“h. Any loss arising from operations by the Named Insured to or from installations of the Distant Early Warning System (DEW line) or the Ballistic Missile Early Warning System (BMEWS);
“i. Any loss arising from operation of an aircraft 1’ without a copilot, if one is required under the attached policy of insurance or 2’ by a pilot (or pilot and copilot) not named in or meeting the qualification, experience, and currency requirements provided in the attached policy of insurance;
“j. Any loss arising from the ownership, maintenance, or use of any aircraft not declared to the Insurer in accordance with the terms and conditions of this policy other than substitute aircraft as authorized in paragraph 4 hereof;
“k. Any loss arising from operations other than the carriage by aircraft of persons or property as a common carrier for compensation or hire or the carriage of mail by aircraft in interstate, overseas, or foreign air transportation;
“1. Any loss arising from operations with aircraft for which an airworthiness certificate has not been issued, has been surrendered, or has been suspended, or revoked by the Administrator of the Federal Aviation Administration, or has expired by its terms;
“m. Any loss arising from operations with aircraft which, at takeoff, have not had inspections, maintenance, preventive maintenance, and alterations performed when required by the Federal Aviation Regulations or which have not had such inspections, maintenance, preventive maintenance, and alterations performed by persons authorized by the Federal Aviation Regulations.” (Emphasis supplied.)
The district court leapt upon paragraph 5 of the endorsement, repeated for convenience as follows:
“5. The EXCLUSIONS of the policy to which this endorsement is attached are deleted and are replaced by the following exclusions . . . .”
The district court viewed paragraph 5 as excluding, for all purposes, all exclusions in the base policy, including exclusion (j) on which the insurance company was relying. The district court found no comparable exclusion in the endorsement and entered judgment on the pleadings in favor of the defendants.
The insurance company contends the district court erred in a number of respects. First, it contends that the endorsement applies only to liability arising from the interstate carriage of persons or property as a common carrier for compensation or hire and that the flight involved was not such an operation. Therefore, it argues paragraph 5 deleting the base policy exclusions is inapplicable and the district court should have applied exclusion (j) of the base policy. Further, the insurance company contends the case was not ripe for entry of judgment on the pleadings as some of the defendants had not answered and that the district court erred in converting a motion to dismiss to a motion for judgment on the pleadings. Finally, the insurance company contends the district court erred in refusing to permit it to amend its petition after entry of judgment, in order to claim under exclusion (k) contained in the endorsement.
We shall first consider whether the district court properly concluded that paragraph 5 of the air taxi endorsement deleted the exclusions in the base policy for purposes herein. One would assume that the relationship between an air taxi endorsement and the base insurance policy to which it is attached would have been discussed in reported cases. No such case has been cited to us nor has our research disclosed any. We must, therefore, plow our own furrow.
A brief summary of the air taxi insurance requirements is appropriate. No effort will be made to plumb the complexities of federal regulations relative to air transportation. It is sufficient to state that in 1967 the Civil Aeronautics Board (CAB) became concerned that some type of mandatory liability insurance was necessary to protect the public from losses through negligence in Board-regulated air taxi operations. Such a requirement was proposed by the CAB that year and ultimately Board-regulated air taxi operators were required to have a CAB form 262 standard endorsement attached to their insurance policies. See 32 Fed. Reg. 17,598 (1967), 33 Fed. Reg. 18,231 (1968), and 35 Fed. Reg. 5,348 (1970), all codified at 14 C.F.R. § 298.1 et seq. (1986). Numerous amendments have occurred. The CAB has been abolished, but the CAB regulations remain viable under the Department of Transportation (49 U.S.C. § 1556 [Supp. III, 1985]). Federally regulated air taxi operators are still required to have a CAB form 262 endorsement on the aviation policies and the endorsement on the policy before us is in compliance therewith. See 14 C.F.R. § 298.41(a) (1986).
We turn now to certain crucial definitions.
Air taxi operator means an air carrier coming within the classification of air taxi operators established by 14 C.F.R. § 298.3 (1986). (14 C.F.R. § 298.2[b] [1986].)
14 C.F.R. § 298.3 sets forth the classification:
“(a) There is hereby established a classification of air carriers, designated as ‘air taxi operators,’ which directly engage in the air transportation of persons or property or mail or in any combination of such transportation and which:
“(1) Except as provided in § 298.5, do not directly or indirectly utilize large aircraft in air transportation;
“(2) Except as provided in § 298.5, do not hold a certificate of public convenience and necessity or economic authority issued by the Board other than that provided by this part;
“(3) Have registered with the Board in accordance with Subpart C of this part;
“(4) Have and maintain in effect liability insurance coverage in compliance with the requirements set forth in Subpart E of this part and have and maintain a current certificate of insurance evidencing such coverage on file with the Board.”
Air transportation means interstate, overseas, or foreign air transportation, or the transportation of mail by aircraft. 49 U.S.C. app. § 1301(10) (1982) and 14 C.F.R. § 298.2(c) (1986).
“ ‘Interstate air transportation’, ‘overseas air transportation’, and ‘foreign air transportation,’ respectively, mean the carriage by aircraft of persons or property as a common carrier for compensation or hire or the carriage of mail by aircraft, in commerce between, respectively—
(a) a place in any State of the United States, or the District of Columbia, and a place in any other State of the United States, or the District of Columbia; or between places in the same State of the United States through the airspace over any place outside thereof; or between places in the same Territory or possession of the United States, or the District of Columbia;
(b) a place in any State of the United States, or the District of Columbia, and any place in a Territory or possession of the United States; or between a place in a Territory or possession of the United States, and a place in any other Territory or possession of the United States; and
(c) a place in the United States and any place outside thereof;
whether such commerce moves wholly by aircraft or partly by aircraft and partly by other forms of transportation.” 49 U.S.C. app. § 1301(24) (1982)
49 U.S.C. 1301 et seq. (1982) is the Federal Aviation Act of 1958.
With these definitions in mind, let us look at the policy herein.
“The policy to which this endorsement is attached is hereby amended to assure compliance by the Named Insured, an air taxi operator, providing services in air transportation, with the provisions of Part 298 of the Economic Regulations of the former Civil Aeronautics Board, now the Office of Aviation Operation of the Department of Transportation.
“I. In consideration of the premium stated in the policy to which this endorsement is attached, the Insurer hereby agrees to pay, within the limits of liability for coverages specified in the policy, all sums which the Named Insured shall become legally obligated to pay as damages for bodily injury to or death of persons or for loss of or damage to property of others, resulting from the Named Insured’s negligent operation, maintenance, or use of aircraft in ‘air transportation,’ as that term is defined in the Federal Aviation Act of 1958. The liability of the Insurer is not contingent upon the solvency or freedom from bankruptcy of the Named Insured.” (Emphasis supplied.)
Excluded from coverage under the endorsement is:
“k. Any loss arising from operations other than the carriage by aircraft of persons or property as a common carrier for compensation or hire or the carriage of mail by aircraft in interstate, overseas, or foreign air transportation.” (Emphasis supplied.)
The result seems inescapable. The endorsement only applies to liability resulting from the operation, maintenance, or use of aircraft in air transportation. That is, for purposes herein, the carrying of persons or property for compensation or hire as a common carrier by aircraft in interstate air transportation. If these conditions do not exist, the endorsement is inapplicable and the base policy with its exclusions applies.
Certain facts are absent which are essential to determining whether the air taxi endorsement applies. In their briefs and pleadings, the parties refer to the flight originating in Olathe, Kansas; or Kansas City; or the Kansas City area. The flight ended tragically near Wichita, Kansas. It would appear that it was a wholly intrastate flight, but this is not established as the Kansas City reference could encompass Missouri. Additionally, we have no facts relative to whether this was a “carriage of persons or property as a common carrier for compensation or hire.”
We conclude the judgment of the district court must be reversed and the matter remanded. Upon remand, the district court should determine whether the flight in question meets the criteria necessary for the endorsement to apply. If the endorsement is found not to apply, then the applicability of exclusion (j) in the base policy must be determined. A number of disputed factual questions are involved in this determination. If the air taxi endorsement is held to apply, then the insurance company should be afforded the opportunity to amend its pleadings to determine coverage under the endorsement.
By virtue of this result, we need not reach the issues raised relative to alleged error in granting judgment on the pleadings prior to all answers being filed or in refusing the insurance company the opportunity to amend its petition after entry of judgment herein.
The judgment is reversed and the case is remanded for further proceedings consistent with this opinion. | [
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|
The opinion of the court was delivered by
Allegrucci, J.:
The State appeals pursuant to K.S.A. 1986 Supp. 22-3602(b)(3) on three questions reserved. The defendant was charged with voluntary manslaughter (K.S.A. 21-3403) and was acquitted, and the innocence or guilt of the defendant is no longer in issue.
Defendant Joan E. Hodges shot and killed her husband on July 19,1983. She was tried on a charge of second-degree murder under K.S.A. 21-3402. The court declared a mistrial after the jury was unable to reach a unanimous verdict. The defendant was tried a second time for second-degree murder but was convicted of the lesser included offense of voluntary manslaughter. She appealed, and the conviction was overturned by this court in State v. Hodges, 239 Kan. 63, 716 P.2d 563 (1986). We held that the trial court had erred in its instructions to the jury regarding self-defense (239 Kan. at 73-74), and further erred in not allowing defendant’s expert testimony on the battered woman syndrome. 239 Kan. at 73.
Upon remand, the defendant was tried for a third time in a trial beginning July 21, 1986. An integral part of her defense was that she had shot her husband in self-defense while suffering from the battered woman syndrome. Prior to trial, the State moved for an order permitting the psychological examination of the defendant. The court ordered the examination, finding that the defendant had previously proffered expert evidence concerning the battered woman syndrome and that the examination would provide expert testimony on whether or not the defendant suffered from the syndrome. The psychiatric examination was conducted for the State by Dr. Herbert C. Modlin.
During the trial, the defendant called Dr. Ann Bristow, who presented two theories which may be used to help understand the battered woman syndrome: the learned helplessness theory and the cycle of violence theory. Dr. Bristow presented the results of her interviews with the defendant and described the history of violence in the relationship between the defendant and her husband. Dr. Bristow noted that the experiences of the defendant were consistent with both the cycle of violence theory and the learned helplessness theory. Dr. Bristow also testified as to the state of mind of the defendant and how it was affected by the battered woman syndrome.
The State attempted to rebut Dr. Bristow’s testimony by calling Dr. Herbert Modlin. The State’s announced purpose in calling Dr. Modlin was to prove that not all experts in psychology agree on the existence of the battered woman syndrome. Counsel for the defense stated that he had spoken with Dr. Modlin, who reportedly told the defense counsel that he did not believe in the existence of the battered woman syndrome. The trial court refused to permit the testimony of Dr. Modlin. The court stated that the testimony was “an indirect attempt to get into evidence a complete refutation of what the Supreme Court already said should be admitted. The State was arguing, not with this Court, but with the Supreme Court of Kansas.”
The State then sought to impeach defendant’s testimony by calling Dr. Modlin to testify concerning statements the defendant made to him which were inconsistent with her testimony at trial. The court excluded the testimony of Dr. Modlin altogether, finding that, since the main purpose for which Dr. Modlin interviewed the defendant was to determine whether she was suffering from the battered woman syndrome, his testimony on the limited subject of any inconsistent statements would mislead the jury. The court denied the State’s request to proffer Dr. Modlin’s testimony. During the closing arguments in the case, defendant’s counsel stated, “There is no question that she suffered from the battered woman syndrome. You have no evidence to the contrary.”
The case was submitted to a jury which was unable to reach a verdict, and the court ordered a mistrial under K.S.A. 22-3423(l)(d). On August 18, 1986, the court granted the defense’s motion for acquittal under K.S.A. 22-3419, finding that there was reasonable doubt any jury could fairly conclude the guilt of the defendant.
The State timely appeals on questions reserved.
The State first contends the trial court erred in excluding the expert testimony of Dr. Modlin regarding the battered woman syndrome. This issue is appropriate for consideration as a question reserved. The consideration of an issue asserted as a question reserved is much more likely where the issue is a new one before the courts. State v. Holland, 236 Kan. 840, 841, 696 P.2d 401 (1985). The issue here is whether the prosecution in a homicide trial may introduce expert testimony which is contrary to the battered woman syndrome.
This court recently addressed the issue of the battered woman syndrome in this very case. In State v. Hodges, 239 Kan. 63, 73, the court held that expert testimony on the battered woman syndrome may not be excluded from evidence to prove the reasonableness of a defendant’s actions in self-defense. The court did not decide that only evidence in favor of the battered woman syndrome may be admitted, which is the interpretation that the trial court gave to our decision in Hodges.
In argument before the trial bench, counsel for the defendant made the following observation to which the trial court expressly agreed in ruling to exclude the testimony:
“Now, [Dr. Modlin] has every right to hold those beliefs, but seven judges of the Kansas Supreme Court have said, in effect, we don’t care what you think about that because we have found from our research and our investigation that [the battered woman syndrome] has been accepted. Whether or not it is in DSM 3 doesn’t amount to a hill of beans as far as I am concerned, because when the Supreme Court says it is, it is. . . .
“In our state now they do recognize, they do recognize the battered woman syndrome.”
The trial court did permit the State to inquire into Dr. Bristow’s ability to identify the battered woman syndrome in given individuals. But, the court stated:
“So far I have not interpreted what [Assistant District Attorney Carr] has been doing is attempting to denigrate the syndrome itself. If I see that occurring, I would stop her, because it is obviously an accepted syndrome by the Supreme Court of Kansas.”
The State’s announced purpose in calling Dr. Modlin to rebut the testimony of Dr. Bristow was to show that the acceptance of the battered woman syndrome was not unanimous in the field of psychology and that “the post-traumatic stress disorders that Dr. Bristow referred to would not include such a thing as the battered [woman] syndrome.” The State added that another reason for Dr. Modlin’s testimony would be “to present evidence [that] there are other [personality and behavioral] theories” besides the battered woman syndrome. The State agreed with the court’s impression that “all the State is doing is saying they have got another view on the syndrome than what the defendant says.”
It should be noted that the State in its brief and in oral argument indicated Dr. Modlin was also prepared to testify that, in his opinion, the post-traumatic stress disorder suffered by the defendant resulted from the shooting rather than the prior domestic violence. The trial court, however, accepted the defendant’s contention that evidence contrary to the battered woman syndrome is inadmissible.
Our decision in Hodges addressed itself to two issues. First, the court found that the jury instructions on self-defense were error since they used the term “immediate” instead of “imminent” in reference to the threat of violence facing the defendant. The court found such usage “places undue emphasis on the decedent’s immediate conduct and obliterates the build-up of terror and fear the decedent systematically injected into the relationship over a long period of time.” Hodges, 239 Kan. at 74. See State v. Osbey, 238 Kan. 280, Syl. ¶ 2, 710 P.2d 676 (1985); State v. Hundley, 236 Kan. 461, Syl. ¶ 3, 693 P.2d 475 (1985).
Second, we found that it was error to deny the defendant’s expert testimony on the battered woman syndrome. We identified two requirements relating to expert testimony of scientific evidence. First, the expert evidence must be helpful to the jury. Hodges, 239 Kan. at 67 (citing State v. Reed, 226 Kan. 519, 601 P.2d 1125 [1979]). Second, the basis of the scientific opinion must be generally accepted within the expert’s particular scientific field. Hodges, 239 Kan. at 67 (citing Frye v. United States, 293 F. 1013 [D.C. Cir. 1923]; State v. Washington, 229 Kan. 47, 662 P.2d 986 [1981]). We found both to be present and that the trial court improperly excluded expert testimony on the battered woman syndrome.
The trial court in the present case has misconstrued our previous holding in Hodges. We did not hold that the battered woman syndrome had been generally accepted within the scientific field. We held that the theory and the methodology underlying the battered woman syndrome were generally accepted in the scientific community. Citing State v. Washington, 229 Kan. 47, we stated in Hodges that “it is the basis of the expert’s opinion that must be shown to be generally accepted.” 239 Kan. at 71. The record before us reveals that the theory underlying the battered woman syndrome has gained a substantial enough scientific acceptance to warrant admissibility.
In Hodges we cited with approval the case of Ibn-Tamas v. United States, 407 A.2d 626 (D.C. 1979), noting that Ibn-Tamas “emphasized the focus is on the general acceptance of a particular methodology in the field and not on the subject matter studied.” (Emphasis in original.) 239 Kan. at 69. Recause the trial court in Ibn-Tamas had failed to rule on the general acceptance of the methodology underlying the battered woman syndrome, the case was remanded for this determination. The trial court found that the methodology underlying the subject had not become generally accepted and the appellate court found the exclusion of the evidence not to be an abuse of discretion. Ibn-Tamas v. United States, 455 A.2d 893 (D.C. 1983).
Our decision in Hodges consistently distinguishes between the battered woman syndrome and the theory or methodology underlying the syndrome. We nowhere express an opinion upon whether the syndrome itself has become generally accepted, nor did we take judicial notice of the battered woman syndrome or that the defendant was suffering from it.
The cases cited in Hodges confirm this view. The Court of Appeals of the District of Columbia in Ibn-Tamas stated that the test “begins — and ends — with a determination of whether there is general acceptance of a particular scientific methodology, not an acceptance, beyond that, of particular study results based on that methodology.” 407 A.2d at 638. The court continued, stating that the important question is whether an expert’s “methodology for identifying and studying battered women has such general acceptance — not whether there is, in addition, a general acceptance of the battered woman concept derived from that methodology.” 407 A-2d at 638.
The difference between requiring that the methodology of an opinion be generally accepted and requiring that the opinion itself be generally accepted is, of course, critical. The latter view would permit only expert testimony favorable to the battered woman syndrome theory to be admitted, a result nowhere endorsed by this court in Hodges. The former view, on the other hand, would allow each side to stand equal. As long as the trial court found the methodologies used to be generally accepted, each side may introduce expert opinion evidence allowing the jury to decide which opinion is more reliable in a particular case.
The case of State v. Washington, 229 Kan. 47, is helpful. In Washington, the State had introduced expert evidence based upon the “Multi-System” method of enzyme analysis. The defendant provided expert testimony that Multi-System analysis is unreliable. The State then rebutted with another expert who endorsed the Multi-System method as reliable. 229 Kan. at 49-52. Applying the Frye test, this court decided the trial court’s ruling admitting evidence on the Multi-System method of analysis was not error. 229 Kan. at 56. But, more importantly for present purposes, the court also noted that “the testimony of various experts supporting and attacking the reliability of the Multi-System analysis was properly placed before the jury for [its] determination as to the weight such evidence should receive.” 229 Kan. at 56.
The District of Columbia Court of Appeals, in Ibn-Tamas, stressed the distinction between the general acceptance of an expert’s methodology (which is a question of law to be determined by the court) and the ultimate reliability and credibility of the expert’s opinion (which are questions of fact to be decided by the jury). Were the law to require that the opinion itself be generally in accord with that of other scientists,
“[W]e would shift to the judge such responsibility for evaluating expert credibility that the role of expert testimony might be changed dramatically. For example, if there were conflicting experts, would the judge conclude that neither could testify? That only the more persuasive one could? That a psychiatrist could while a psychologist could not? The judge’s role is properly limited to verifying credentials, including findings that the scientific field is generally recognized and that the methodology proffered is generally accepted by the expert’s colleagues in the field. The judge is not to take over the jury’s function of weighing the persuasiveness of the testimony.” 407 A.2d at 638-39 n.24.
The effect of the trial court’s misinterpretation of our prior ruling in Hodges is to remove from the jury the ability to determine the reliability of a particular scientific opinion. It would permit proponents of a scientific opinion, in this instance the battered woman syndrome, to introduce expert evidence in favor of the opinion and to point out to the jury that the opinion has not been contradicted by the opposing party, as occurred in the present case. But the correct and the straightforward interpretation of Hodges would require each party to test the reliability of their experts’ opinions before the jury.
The State’s second contention that the trial court erred in refusing to permit Dr. Modlin to testify for the limited purpose of impeaching the defendant does not present an appropriate question reserved. The issue is of merit only for the disposition of the present case and would not significantly aid in the correct and uniform administration of the law. Alleged errors which are closely tied to the facts of particular cases do not provide a valid basis for a question reserved. State v. Lamkin, 229 Kan. 104, 621 P.2d 995 (1981). When the alleged error does not involve a novel issue of statewide interest but, instead, deals with factual issues significant mainly for the resolution of the individual case, the error does not present a valid question reserved. State v. Holland, 236 Kan. at 841.
The trial judge denied the State’s second attempt to call Dr. Modlin because he had already refused to allow him to testify on the battered woman syndrome. The trial court found that the testimony of Dr. Modlin for this purpose would have served only to mislead the jury.
However, even assuming that this court could entertain this issue as a question reserved, it could not be decided on its merits. The only suggested use of Dr. Modlin’s testimony at trial, other than that regarding the battered woman syndrome, was to demonstrate allegedly inconsistent statements made by defendant Joan Hodges during Dr. Modlin’s examination of her. The only example of such an inconsistent statement suggested by the State is the defendant’s failure to mention to Dr. Modlin a trip she testified she took to Las Vegas in the week prior to the death of her husband. Whether the trial court’s exclusion of Dr. Modlin’s testimony amounts to an abuse of discretion and prejudicial error naturally depends upon a review of the trial transcript to determine the importance of the defendant’s statements which the State sought to impeach. But the State has designated a record which includes only matters relevant to the battered woman syndrome: the testimony of Dr. Bristow, counsel’s argument before the bench regarding the testimony of Dr. Modlin, and defense counsel’s closing argument. The State does not provide this court with Joan Hodges’ testimony or the testimony of other witnesses which might bear upon the challenged statements of the defendant. We could not properly determine, on the narrow record presented, whether the trial court’s ruling was prejudicial error. An appellant has an obligation to bring forth a sufficient record to support his or her claim. State v. Yost, 232 Kan. 370, 654 P.2d 458 (1982), overruled in part on other grounds State v. Haines, 238 Kan. 478, 712 P.2d 1211 (1986). Where the appellant presents a limited record which prevents a determination of prejudicial error, the appellant’s inadequate presentation of the record precludes appellate examination of his claim. State v. Chilcote, 7 Kan. App. 2d 685, 647 P.2d 1349, rev. denied 231 Kan. 801 (1982).
This brings us to the final issue raised by the State. Did the trial court commit error by refusing to permit the proffer of Dr. Modlin’s testimony? The Kansas appellate courts have never directly addressed the question of atrial court’s refusal to accept an offer of proof. The issue is novel and its resolution would aid in the assistance of the orderly administration of justice and is appropriately presented as a question reserved.
The following exchange took place between counsel for the State and the court out of the presence of the jury:
“MISS CARR: Your Honor, regarding your ruling about the State’s rebuttal witness, Dr. Modlin, and not allowing him to testify, for the record we offer State vs. Hayes, 239 Kansas at 443, for your consideration. We would also ask that we be allowed to proffer his testimony outside of the presence of the jury to preserve the record for appeal. Here is that case.
“MISS FOSTER: Or the request be on the record we can offer the testimony.
“THE COURT: Pardon?
“MISS FOSTER: At least the request, to preserve the record, we are requesting we be allowed to proffer the testimony outside of the hearing of the jury.
“THE COURT: That request is denied.”
While Kansas courts have never dealt directly with a trial court’s refusal of an attempted offer of proof, other jurisdictions have done so. The rule seems firmly established elsewhere that a refusal to permit the making of an offer of proof is usually error. See, e.g., State v. Harrington, 349 N.W.2d 758, 760 (Iowa 1984).
In State v. Moore, 47 Ohio App. 2d 181, 1 Ohio Op. 3d 267, 353 N.E.2d 866 (1973), the issue presented was similar to that in the present case. The defendant sought to introduce expert evidence based upon a novel scientific technique or methodology (in Moore, a polygraph examination), and the trial court not only refused to accept the expert opinion into evidence, it also refused to permit an offer of proof. The appellate court first recognized that the exclusion of polygraph evidence is “essentially the uniform rule throughout the country.” 47 Ohio App. 2d at 193. The court continued: “Knowing the state of the law, it certainly was not error for the trial judge to refuse the witness’s testimony. It was error for the trial court to refuse the proferí into the record of the testimony of the expert witness.” 47 Ohio App. 2d at 193. However, since the court upheld the rule excluding polygraph evidence, the court found that, while the trial court had erred in refusing the proffer, it had not committed prejudicial error.
K.S.A. 60-243(c) provides:
“Record of excluded evidence. In an action tried by a jury> if an objection to a question propounded to a witness is sustained by the court, the examining attorney may make a specific offer of what he expects to prove by the answer of the witness. The offer shall be made out of the hearing of the jury. The court may add such other or further statement as clearly shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. In actions tried without a jury the same procedure may be followed, except that the court upon request shall take and report the evidence in full, unless it clearly appears that the evidence is not admissible on any ground or that the witness is privileged.”
K.S.A. 60-405 provides:
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless it appears of record that the proponent of the evidence either made known the substance of the evidence in a form and by a method approved by the judge, or indicated the substance of the expected evidence by questions indicating the desired answers.”
In State v. Nix, 215 Kan. 880, 884-85, 529 P.2d 147 (1974), this court stated:
“Here counsel for the appellant made no proffer to the trial court out of the hearing of the jury, of the evidence which was claimed to have been erroneously excluded, and the substance of the evidence excluded was not made known to the trial court in any form as required by K.S.A. 1973 Supp. 60-243(c) and K.S.A. 60-405. Consequently, the appellant is in no position to assert error on either of the two points regarding the exclusion of evidence.”
The trial court clearly erred by denying the State’s requested proffer of the testimony of Dr. Modlin. The trial judge, by so doing, placed the State in a “Catch-22” situation. The State on the one hand was required by statute to proffer the evidence into the record to preserve its right to raise the issue on appeal but, on the other hand, was prevented from doing so by the trial court’s ruling.
The appeal of the State is sustained in part and denied in part. | [
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|
The opinion of the court was delivered by
Prager, C.J.:
This appeal involves the priority of liens in a mortgage foreclosure action. The facts in the case are not in dispute and essentially are as follows: The defendants, Marion J. Fink and Deloris M. Fink, are the mortgagors on two mortgages covering the same real estate located in Sedgwick County. This dispute is between the First National Bank in Wichita (Bank), the plaintiff/appellant, and Robert H. Souders, the defendant/appellee, who are the holders of mortgages on the property.
The mortgage liens were created as a result of loans made to the Finks in the following chronological order:
On November 22, 1977, the Finks borrowed money from the First National Bank in order to purchase certain real estate. The defendants signed a promissory note in the principal amount of $24,506 plus interest, and executed a mortgage on the real estate described as follows:
“Lot 4, North Half of Lot 5, Block 10 Beverly Manor, Sedgwick County, Kansas.”
The mortgage, which was recorded on January 26, 1978, contains a future advance clause or “dragnet clause,” which provided as follows:
“(7) That this mortgage secures the payment of any and all existing and future notes, loans, advances and any renewal or renewals of note/s and each and all of the payments and obligations thereunder, even though the indebtedness of Mortgagors to Mortgagee from time to time be reduced below the maximum amount above stated or be paid in full and if Mortgagee shall thereafter make loans or advances to Mortgagors, such loans or advances thereafter made shall nevertheless be secured by this mortgage until this mortgage is released of record.”
On July 30,1979, the Finks executed a second mortgage on the same real estate in favor of defendant Souders in the principal amount of $30,000 plus interest. This second mortgage was recorded on August 23, 1979.
On or about October 28, 1983, and January 23, 1984, the Bank made two additional loans to the Finks in the principal amounts of $6,472 and $13,144, respectively. The Finks executed a promissory note and a mortgage to the bank for each loan. On the face of both the 1983 and the 1984 notes, the parties agreed as follows:
“SECURITY AGREEMENT
“FOR VALUABLE CONSIDERATION, Borrower hereby grants unto Bank a security interest in the property (Collateral) described below together with any and all additions thereto, substitutions therefor, and proceeds therefrom:
“DESCRIPTION OF COLLATERAL
“Real estate mortgage dated November 22, 1977, on the following described property:
“Lot 4, North Half of Lot 5, Block 10, Beverly Manor, Sedgwick County, Kansas.”
The Finks defaulted on their loans, and the Bank brought an action on the notes and for foreclosure of its mortgage. Defendant Souders was made a party along with other creditors not involved in this appeal. A dispute arose between the First National Bank and Souders as to the priorities of their respective mortgage liens.
The district court found that the Bank’s mortgage lien had priority over the mortgage lien of Souders only as to the amount of any unpaid balances due on the original 1977 loan. The court ruled that the Bank made the later loans to the Finks with notice of defendant Souders’ intervening mortgage and that reference to the 1977 mortgage on the face of the 1983 and 1984 notes would not defeat the priority of Souders’ lien. The trial court established the order of priority between the mortgage liens of the Bank and Souders as follows:
(1) The unpaid balance of the Bank’s 1977 purchase money mortgage in the amount of $9,152 plus interest;
(2) defendant Souders’ mortgage in the amount of $39,182 plus interest;
(3) the Bank’s 1983 note in the amount of $8,617 plus interest; and
(4) the Bank’s 1984 note in the amount of $14,886 plus interest.
The Bank perfected a timely appeal, and the case was transferred to the Supreme Court for determination.
Defendant Souders initially raises a jurisdictional issue. He takes the position that the plaintiff Bank is precluded from prosecuting this appeal, because the Bank acquiesced in the judgment below by voluntarily signing the journal entry in the district court and accepting benefits therefrom. We find this point to be without merit. The record shows that all the Bank’s attorneys did in the district court was to approve the journal entry of judgment. The Bank neither made voluntary payments nor accepted benefits under the judgment in a manner contrary to its position on this appeal.
In McDaniel v. Jones, 235 Kan. 93, 679 P.2d 682 (1984), this court held the general rule is that a party to litigation who acquiesces in the judgment of the trial court, either by assuming the burdens of such judgment or by accepting the benefits thereof, will be deemed to have acquiesced in such judgment and may not thereafter adopt an inconsistent position and appeal from such judgment. The gist of acquiescence sufficient to cut off a right of appeal is voluntary compliance with the judgment. McDaniel states that where a judgment or decree involves distinct and severable matters, demands, or issues, an acceptance of the burdens or benefits of one or more parts thereof will not prevent an appeal as to the remaining contested matters, demands, or issues.
Thus, in order for an appellate court to hold that a party has acquiesced in ajugment, it must be shown that the appellant has either assumed burdens or accepted benefits of the judgment contested on the appeal. In the present case, the Bank did neither. All that the Bank’s attorneys did was approve the journal entry. They did not in any way act on behalf of the Bank in a manner inconsistent with its position in the trial court or on this appeal. We find the defendant’s jurisdictional issue to be without merit.
We turn now to the question of the priority of the mortgage liens. It is the position of defendant Souders that the subsequent loans made by the Bank to the Finks in 1983 and 1984 were not secured by the 1977 mortgage, because the subsequent advances were made for unrelated business purposes, were optional, nonobligatory loans, and were made by the Bank with notice of the Souders’ 1979 mortgage lien. The trial court adopted, in substance, the position of defendant Souders.
We should first consider the Kansas statutes and previous cases on the subject. K.S.A. 1986 Supp. 9-1101(4) authorizes a Kansas bank:
“(4) to make all types of loans, including loans on real estate, subject to the loan limitations contained in this act. Every real estate loan shall be secured by a mortgage or other instrument constituting a lien, or the full equivalent thereof, upon the real estate securing the loan, according to any lawful or well recognized practice, which is best suited to the transaction. The mortgage may secure future advances. The lien of such mortgage shall attach upon its execution and have priority from time of recording as to all advances made thereunder until such mortgage is released of record. The lien of such mortgage shall not exceed at any one time the maximum amount stated in the mortgage.”
K.S.A. 58-2336 also provides for the securing of future advances in the following language:
“58-2336. Liens of mortgages securing loans upon real estate; providing for the securing of future advances; priority of lien. Every mortgage or other instrument securing a loan upon real estate and constituting a lien or the full equivalent thereof upon the real estate securing such loan, according to any lawful or well recognized practice, which is best suited to the transaction, may secure future advances and the lien of such mortgage shall attach upon its execution and have priority from time of recording as to all advances made thereunder until such mortgage is released of record: Provided, That the lien of such mortgage shall not exceed at any one time the maximum amount stated in the mortgage.” (Emphasis supplied.)
The trial court in this case relied on K.S.A. 58-2222, which provides, in substance, that a mortgage shall from the time of filing the same with the register of deeds for record impart notice to all persons of the contents thereof; and all subsequent purchasers and mortgagees shall be deemed to purchase with notice.
The appellate courts of Kansas have discussed the effect of future advance clauses in mortgages on several occasions. In Potwin State Bank v. Ward, 183 Kan. 475, 327 P.2d 1091 (1958), the question on appeal was the priority between a mortgage given to secure future advances and a mechanic’s lien covering labor and materials for the construction of a house on the mortgaged premises after the recording of the mortgage but before the making of advances by the mortgagee. The mortgage was given in connection with a loan for the construction of the house. This court held that a mortgage to secure future advances is valid and will be judicially enforced. Advances made under such a mortgage, at least if made pursuant to an agreement to make them, have priority over mechanic’s liens which attach after the recording of the mortgage but before the making of the advances.
In Emporia State Bank & Trust Co. v. Mounkes, 214 Kan. 178, 519 P.2d 618 (1974), this court again recognized the validity of a future advance provision or dragnet clause. It was held that future advances made pursuant to a dragnet clause fall within the contemplation of the parties and are secured under the mortgage containing such clause. Dragnet clauses are not, however, highly regarded in equity and shall be carefully scrutinized and strictly construed. In the absence of clear evidence of a contrary intention, a mortgage containing a dragnet-type provision will not be extended to cover subsequent advances or loans unless they be of the same kind and quality or relate to the same transaction or series of transactions or unless the document evidencing the same refers to the mortgage as providing security therefor. In Mounkes, the court refused to extend the prior mortgage as security for the two subsequent loans, because the later loan instruments contained no reference to the prior mortgage and were unrelated to the purposes of the original mortgage. The evidence in the record indicated that the subsequent advances were, in fact, signature loans on which there is generally no security whatsoever.
First Nat’l Bank & Trust Co. v. Lygrisse, 231 Kan. 595, 647 P.2d 1268 (1982), again involved an appeal in a mortgage foreclosure action with regard to a future advance clause. The 1976 mortgage covered a loan of $47,000 and contained a dragnet clause for future advances not to exceed $400,000. Shortly after execution of the $47,000 note and mortgage, the mortgagors consolidated their debts and executed another note for $274,664. In the lower left-hand corner of the note appeared this statement: “NOTE SECURED BY S/A 509 head of cattle, machinery & equip., Financial Stmt., R.E. Mtg. dtd. 1/30/76.” Thereafter the mortgagors executed some additional renewal notes. The trial court found that the total principal and interest owing in the amount of $206,414 was secured by the 1976 mortgage. The Court of Appeals reversed the trial court, holding that the statement on the face of each note that it was secured by the real estate was not a sufficient reference to the mortgage to subject the mortgage to the full amount of the subsequent notes. This court reversed the Court of Appeals.
Syllabus ¶ 1 of Lygrisse states the rule to be applied in determining the legal effect of a dragnet clause in the following language:
“Subsequent debts may be secured under the dragnet clause of a real estate mortgage in either of two ways: (1) by specifically stating on the face of the new note that it is secured by the prior mortgage; or (2) by showing that the subsequent debt is of the same kind or character as, or part of the same transaction or series of transactions with, that originally secured by the mortgage.”
Following Lygrisse, the Court of Appeals handed down Fidelity Savings Ass’n v. Witt, 8 Kan. App. 2d 640, 665 P.2d 1108 (1983), where certain mechanic’s lienholders urged the Court of Appeals to adopt a rule that when future advances are optional with the lender, the funds so advanced shall be given priority only from the date of each advance and not from the date the mortgage instrument was recorded. They recognized the general rule that where the making of future advances is obligatory rather than optional, the lien of the mortgagee receives priority from the date of the recording of the mortgage. The Court of Appeals reached the conclusion that the language of K.S.A. 58-2336 was unambiguous and all-encompassing. It held that under K.S.A. 58-2336, when advances are made pursuant to a future advance clause in a mortgage, the advances have priority over liens which attach after the recording of the mortgage but before the advances are made, irrespective of whether the advances are designated as “optional” or “obligatory.” Future advance clauses are also discussed in Home State Bank v. Johnson, 240 Kan. 417, 729 P.2d 1225 (1986).
Based upon the Kansas statutes and the cases cited above, we have no hesitancy in holding that the trial court erred in finding that mortgage lien of defendant Souders was prior to the liens created by the Bank’s 1983 and 1984 notes, each of which specifically stated on the face of the instrument that it was secured by the prior 1977 mortgage. The priority of the Bank’s lien is limited, however, to the principal of the 1977 mortgage, $24,506.39 plus interest thereon, as required by K.S.A. 58-2336. The lien of the Souders mortgage is held to be prior to any sums owing the Bank in excess of that amount.
The judgment of the district court is reversed and remanded for further proceedings. | [
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The opinion of the court was delivered by
Holmes, J.:
Thomas E. Griffen appeals from his sentencing following a plea of guilty to one count of aggravated sexual battery (K.S.A. 1986 Supp. 21-3518). Griffen was originally charged with one count of aggravated kidnapping (K.S.A. 21-3421), two counts of aggravated criminal sodomy (K.S.A. 1986 Supp. 21-3506), two counts of rape (K.S.A. 1986 Supp. 21-3502), and one count of aggravated robbery (K.S.A. 21-3427). In a plea agreement the defendant pled guilty to a new charge of one count of aggravated sexual battery, and all other charges against him were dismissed. The defendant was sentenced to three to ten years and, following denial of a motion to modify the sentence, he appealed. Pursuant to K.S.A. 20-3018(c), this case was transferred to the Supreme Court.
The defendant asserts two issues on appeal: (1) Whether a defendant is entitled as a matter of right to a transcript of the hearing on a motion to modify sentence, and (2) whether the trial judge erred in failing to recuse himself at the time of sentencing. Griffen was sentenced on July 30, 1985, and thereafter filed a timely motion to modify the sentence which was heard on December 19, 1985, and subsequently denied. He has appealed from “his conviction and sentence.” Griffen filed motions in the district court, the court of appeals, and in this court seeking a transcript of the hearing on the motion to modify the sentence. All three motions were denied.
At the outset, the State contends the notice of appeal is insufficient as it does not specifically state that the defendant is appealing from the trial court’s ruling on the motion to modify sentence. We find the. State’s jurisdictional attack to be without merit. This Court is the final arbiter in determining whether statutory jurisdictional requirements have been met in any case filed in the courts of Kansas. We have often recognized that jurisdiction in any action on appeal is dependent upon strict compliance with the statutes. However, when there is a valid controversy whether the statutory requirements have been complied with, we are required to construe those statutes liberally to assure justice in every proceeding. See K.S.A. 60-102 and K.S.A. 22-2103; State v. Hill, 211 Kan. 287, 294, 507 P.2d 342 (1973). There is no showing that the notice of appeal misled the State or that anyone was surprised or prejudiced by the issues on appeal. We conclude the notice of appeal was sufficient to vest jurisdiction in this court.
We now turn to defendant’s argument that he was improperly denied a transcript of the hearing on the motion to modify sentence. K.S.A. 1986 Supp. 22-4509 provides:
“Whenever it is determined that a transcript of all or some part of the trial or other proceeding is necessary to enable a person who is entitled to appeal, or to pursue another post-conviction remedy, to present such person’s cause adequately and it is further determined that the appellant or petitioner or movant is financially unable to pay for the preparation of such transcript, the district court shall order that the transcript be supplied to the appellant or petitioner or movant by the official reporter of the district court.”
It should be noted that the statute requires that the court hearing a motion for a transcript must determine the defendant is indigent and that a transcript is necessary to adequately prepare the appeal. During oral argument we were advised that at the hearing on the motion for modification no evidence was produced and the hearing was limited to arguments of counsel. The right to a free transcript for indigent defendants is not absolute. In Britt v. North Carolina, 404 U.S. 226, 227, 30 L. Ed. 2d 400, 92 S. Ct. 431 (1971), the United States Supreme Court stated two factors which should be considered in determining the necessity for the transcript requested for appeal: (1) The value of the transcript to the defendant in connection with the appeal or trial for which it is sought, and (2) the availability of alternative devices that would fulfill the same function as a transcript. Accord State v. Hornbeak, 221 Kan. 397, 559 P.2d 385 (1977).
Here, all that is included in the record is the order of the trial court denying the defendant’s request for a transcript of the hearing on his motion to modify sentence. There is no indication that defendant’s trial counsel made known to the trial court why the transcript was needed. In his motion to the Supreme Court for the transcript, defendant’s appellate counsel stated the transcript “is necessary for adequate preservation of the right to appeal a sentencing determination.” There is absolutely no showing of any attempt by appellate counsel to determine what actually transpired at the hearing and no showing of why counsel feels the transcript is necessary. While Britt and Hornbeak made it clear that a particularized statement is not required, it is likewise clear the court must have some information upon which to determine the need for a free transcript. On this record, the request for a transcript appears to be nothing more than a fishing expedition by counsel and we find no error in the denial of the transcript.
Next, the defendant contends the trial judge should have recused himself when, in chambers prior to the sentencing hearing, the trial court referred to the defendant as a “mean mother.” Terry Pullman, an attorney from the public defender’s office, was sitting in for the defendant’s regular attorney. As Pullman was not familiar with the case, the court, in an attempt to assist defense counsel, sought to summarize the findings of the presentence investigation report. In conveying the gist of that report the judge unfortunately utilized language which he himself subsequently acknowledged was inappropriate. At the start of the hearing on the record, defense counsel related what had taken place in chambers and moved for the judge to recuse himself and that the sentencing be done by another judge. The judge refused to recuse himself after explaining his position on the record. Following sentencing, the court explained the reasons behind the sentence and then commented on his prior off-the-record remarks stating:
“I apologize to all concerned that anybody within the sound of my voice for my use of an idiomatic expression which crops up frequently in criminal cases was used by me in attempting to summarize what I had gleaned from the Preliminary Hearing and from the presentence investigation and from the letters and from the Hearings. Judges are not supposed to use street terms, even in private conversations, but you can’t take back words once uttered.”
We agree with the trial judge that his in chambers remarks were ill-advised, should not have been said, and certainly are not to be condoned. However, under the totality of the circumstances, we cannot say that the unfortunate remarks demonstrate such partiality, prejudice, or bias that the sentence should be set aside and the defendant resentenced by another judge. We also note that at no time has defendant made any attempt to comply with K.S.A. 1985 Supp. 20-311d(a).
In determining whether a judge should recuse himself, we held in State v. Logan, 236 Kan. 79, Syl. ¶ 5, 689 P.2d 778 (1984):
“Where the defendant in a criminal action contends the trial judge was biased and partial, the determination as to whether the defendant received a fair trial involves a two-part analysis: (1) Did the trial judge have a duty to recuse under the Code of Judicial Conduct? (2) If he did have a duty to recuse and failed to do so, was there a showing of actual bias or prejudice to warrant setting aside the judgment of the trial court?”
The standard to be applied to a charge of lack of impartiality is:
“whether the charge of lack of impartiality is grounded on facts that would create reasonable doubt concerning the judge’s impartiality, not in the mind of the judge himself, or even, necessarily, in the mind of the litigant filing the motion, but rather in the mind of a reasonable person with knowledge of all the circumstances.” 236 Kan. at 86. (Emphasis added.)
Here the trial judge presided over the preliminary hearing and was aware of the plea bargain between the defendant and the State. The judge had reviewed the presentence investigation report to prepare for sentencing. In that report the defendant admitted he hit and bruised his common-law wife, the victim, and was reported to have said he ought to kill her or kidnap her as he had done in the past and make her his slave. In 46 Am. Jur. 2d, Judges § 170, it is stated:
“A judge’s ordinary and natural reaction to the conduct of, or evidence developed about, a party in a case before him cannot create a disqualification for bias or prejudice. In the course of a criminal trial, for example, evidence as to a defendant’s activities may incite natural disgust, but it could hardly be thought that a judge would be disqualified because he reacted as would anyone else.”
See also United States v. Bernstein, 533 F.2d 775, 785 (2d Cir.), cert. denied 429 U.S. 998 (1976) (what a judge learns in his judicial capacity from guilty pleas and pretrial proceedings is a proper basis for judicial observation and the use of that information will not result in disqualification); King v. United States, 434 F. Supp. 1141, 1145 (N.D. N.Y. 1977), aff'd 576 F.2d 432 (2d Cir.), cert. denied 439 U.S. 850 (1978) (comments made at sentencing did not establish a personal bias against the defendant as comments were based entirely on evidence presented to court in its judicial capacity).
In Wilks v. Israel, 627 F.2d 32 (7th Cir. 1980), cert. denied 449 U.S. 1086 (1981), the defendant threw things at the judge during pretrial proceedings and at trial assaulted the judge. On the record, the judge called the defendant a coward and stated he was going to put him away. At a later time, however, the judge stated the defendant was just another defendant. On review the appellate court reviewed the entire record and noted it was the jury who had convicted the defendant. See State v. Foy, 227 Kan. 405, 412-13, 607 P.2d 481 (1980). Here, of course, the defendant pled guilty to a greatly reduced charge after an effective plea bargain.
After making the in-chambers comments, the trial judge was very courteous to all parties involved and allowed all interested persons to comment on an appropriate sentence for the defendant. The district attorney had recommended a sentence of 2 to 5 years, and the court services officer had recommended the maximum sentence. The 3- to 10-year sentence set by the trial court is within the statutory limits, K.S.A. 1986 Supp. 21-4501(d)(l). Under all of the existing circumstances, it cannot be said the sentence is the result of bias, prejudice, or corrupt motive.
The judgment and sentence of the district court is affirmed. | [
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The opinion of the court was delivered by
Lockett, J.:
The Board of County Commissioners of Johnson County (Board) appeals the district court’s award to the plaintiffs under 42 U.S.C. § 1988 (1982) for attorney fees which exceeded $585,000, in five cases that were consolidated for trial.
Five separate lawsuits challenging the levy of special assessments to pay the cost of waste-water treatment facilities constructed in Blue River Main Sewer District No. 1 and Blue River Sewer Sub-Districts Nos. 5 and 6 were consolidated in the Johnson County District Court. Four of the actions developed in conjunction with Dutoit v. Board of Johnson County Comm’rs, 233 Kan. 995, 667 P.2d 879 (1983). A summary of the facts follows.
On June 26, 1978, the Board created Blue River Sewer Sub-District No. 5 to construct sewage collection facilities to serve approximately 2,504 acres. On September 5, 1978, the Board created Blue River Sewer Sub-District No. 6 to construct sewage collection facilities to serve approximately 336 acres.
On March 6, 1979, the Board created Blue River Main Sewer District No. 1 to construct a sewage treatment facility for sewage generated in Sub-Districts No. 5 and 6. Sub-Districts No. 5 and No. 6 were combined to form Main District No. 1, to serve 2,840 acres.
On January 26, 1982, the case of Dutoit v. Board of Johnson County Comm’rs was filed in Johnson County District Court to enjoin the levying of assessments of costs of improvements constructed in Sub-District No. 5, to set aside the order enlarging the district, and to exclude the plaintiffs’ land from the district. On June 30, 1982, an amended petition was filed in Dutoit alleging a class action and constitutional violations of the Fifth and Fourteenth Amendments of the United States Constitution. On August 24, 1982, a second amended petition was filed in Dutoit alleging a 42 U.S.C. § 1983 (1982) cause of action.
The Board filed a motion to dismiss all of the Dutoits’ claims. On December 29, 1982, a journal entry of dismissal of all of the Dutoits’ claims was filed. The Dutoits appealed. On July 15, 1983, we held that the district court had correctly dismissed the class action claims and the claims challenging the creation and enlargement of the Blue River Sub-District No. 5, but that the Dutoits’ 42 U.S.C. § 1983 claim had been improperly dismissed. Dutoit was remanded for further proceedings.
On June 7, 1983, prior to our decision in Dutoit, the Board, as the governing body of Sub-District No. 6, levied assessments within that district to pay the costs of the public improvements. On June 17, 1983, the case of Allison, et al. v. Board of County Commissioners was filed in Johnson County District Court challenging the assessments levied in Sub-District No. 6. The case was also filed on behalf of Sub-District No. 5 and Main District No. 1 owners.
On November 10, 1983, the Board reassessed the costs of improvements in Sub-District No. 5, and the thirty-day appeal period was reinstated so as to allow other landowners to contest the Sub-District No. 5 assessments. Suits were then filed by the plaintiffs in all five consolidated cases, challenging those assessments.
Pleadings in the five cases are not identical, but contain similar claims for relief. Essentially, those pleadings included claims that the statute (K.S.A. 19-2704 et seq.) was unconstitutional, the districts were not lawfully created, the boundaries were arbitrary, misrepresentations were made, the Board abused its discretion, the method of assessment was improper, the assessments constituted inverse condemnation, the assessments were unreasonable, and the assessments violated plaintiffs’ constitutional rights.
Trial of the consolidated cases commenced on February 25, 1985. On the third day of trial, after jury selection and opening statements, a settlement was reached. The essential terms of the settlement were that the assessments as levied would stand and not be changed, the maximum amount that would be collected from all land within the districts was approximately $2,550 per acre, the costs would be divided approximately equally between the two sub-districts and the main district, all landowners would be treated the same, and the County would be precluded from assessing additional accrued interest and other costs not currently included within the assessments of record against the consolidated plaintiffs and the other landowners within the districts.
The settlement achieved a reduction in the assessments which the plaintiffs and all landowners within the districts were obligated to pay. The settlement was accepted by the court, and plaintiffs subsequently filed their requests for statutory attorney fees in excess of $850,000 under 42 U.S.C. § 1988. After hearings on the issues, the trial court awarded fees and expenses totaling more than $585,000. Defendants filed this appeal, opposing the fee award.
In Kansas the prevailing party in litigation is entitled to recover the costs of the action, but is not reimbursed for the litigation expenses and legal fees. Attorney fees incurred by the prevailing party are chargeable as costs against the losing party where specific statutory provisions allow recovery. State, ex. rel., v. Sage Stores Co., 158 Kan. 146, 145 P.2d 830 (1944). Statutes which authorize attorney fees are designed to provide access to judicial relief for victims, providing an economic incentive for lawyers to represent their clients’ interest.
The history of the purpose of The Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988, was set out by Justice Herd in Gumbhir v. Kansas State Board of Pharmacy, 231 Kan. 507, 646 P.2d 1078 (1982), cert. denied 459 U.S. 1103 (1983). By awarding attorney fees, 42 U.S.C. § 1988 insures that individual plaintiffs, as private attorneys general, are able to assert and vindicate their civil rights in court. Congress’ purpose in adopting the Act was to assure that the opportunity to enforce federal civil rights would be available to all. The legislation gives effective access to the judicial process to the vast majority of the victims of civil rights violations who cannot afford legal counsel. It promotes the enforcement of the federal civil rights acts and achieves uniformity in those statutes and justice for all citizens. Bond v. Stanton, 555 F.2d 172 (7th Cir. 1977).
Under proper circumstances, § 1983 actions may be brought against the United States, individual states, and local governments. The fact that any unit of government operates under some form of statutory procedure does not prevent an individual from challenging the constitutionality of the government’s actions. See generally Annot., 43 A.L.R. Fed. 243, § 7. The principles of comity and the Tax injunction Act, 28 U.S.C. § 1341 (1982), prevent actions in the federal courts based on a claim of unequal taxation of property by a state. If a § 1983 claim exists due to a state’s unequal taxation or unequal assessment of property, the action must be brought in the state court. Fair Assessment in Real Estate Assn. v. McNary, 454 U.S. 100, 70 L. Ed. 2d 271, 102 S. Ct. 177 (1981).
State Remedios
The Board contends that § 1983 suits are not available where adequate state remedies are available and provide the proper due process requirements. Here, the Board contends, because plaintiffs could have obtained administrative review (K.S.A. 19-2705 [repealed, L. 1983, ch. 99, § 30]) or injunctive relief (K.S.A. 60-907), or brought an action for inverse condemnation, their § 1983 claim was improper.
The Board cites Parratt v. Taylor, 451 U.S. 527, 537, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981), as support. Parratt held that the Fourteenth Amendment protects only against deprivations without due process of law, but does not protect against all deprivations of life, liberty, or property by the State. Where states provide an adequate remedy, that remedy itself constitutes the due process required by the Fourteenth Amendment. 451 U.S. at 544.
We followed Parratt in Alvarado v. City of Dodge City, 238 Kan. 48, 708 P.2d 174 (1985), holding that where an individual is deprived of liberty by an alleged random and unauthorized act of an off-duty police officer working as a security guard for a private employer, the Kansas tort actions for false imprisonment, assault, and defamation provided an adequate post-deprivation remedy, satisfying the requirements of due process. Hence, Alvarado’s § 1983 claim was properly dismissed.
Neither Parrott nor Alvarado are applicable to the present case. Here, plaintiffs are challenging an established state procedure that deprived them of their land without according them proper procedural due process safeguards. Though the plaintiffs had an administrative procedure to challenge the excessive assessment of their land, the special assessments had been approved by the Board and published, effectively creating a lien on the their land. The administrative procedure as it existed did not prevent an unconstitutional taking. K.S.A. 19-2705 merely allowed a hearing at which the property owner could object to an unequal assessment of his land as compared to the assessment of other similar land in the benefit district. After the hearing, the county could proceed to collect the arbitrary assessment. No administrative remedy existing at that time provided a landowner the opportunity to discontinue the project when additional areas were added to the district, or when the cost had exceeded the original estimate and no longer provided a benefit to the district. An arbitrary decision cannot be validated by a procedurally correct review process that produces an equally arbitrary ruling. Vari-Build, Inc. v. City of Reno, 596 F. Supp. 673, 679 (D. Nev. 1984). (K.S.A. 1986 Supp. 19-27a06, enacted in 1983, prevents an unconstitutional taking by prohibiting the addition of land to the sewer district and requires a second public hearing when the cost of the project exceeds more than ten percent of the initial estimated cost.)
K.S.A. 60-907 provides injunctive relief to enjoin the illegal levy of any tax, charge, or assessment. Injunctive relief from the outstanding assessments affects only that yearly assessment. Injunctive relief would not preclude the Board from levying future excessive assessments for the same obligation.
“Inverse condemnation” is an action or eminent domain proceeding initiated by an individual having an interest in realty rather than by a government condemnor. Inverse condemnation is available when private property has actually been taken for public use without formal condemnation proceedings and there is no intention or willingness on the part of the taker to bring the action to acquire the property. Lone Star Industries, Inc. v. Secretary, Kansas Dept. of Transp., 234 Kan. 121, 671 P.2d 511 (1983). Such procedure is not available to provide the plaintiffs with relief since there was no actual taking of the land by the county.
An Actionable Claim
The Board contends there was not sufficient evidence to support a § 1983 claim. We disagree.
After the improvement district was initially formed, the Board excluded 200 acres from the district, resulting in an increase in assessments to the plaintiffs. Plaintiffs were never given notice of the exclusion of the property or an opportunity to be heard on the matter, as was required at that time by K.S.A. 19-2715e (repealed, L. 1983, ch. 99, § 30).
Prior to formation of the districts, plaintiffs were informed at a public hearing that the costs of the improvements would be $2,000 per acre. After numerous enlargements and changes in design, the costs increased to approximately $3,700 per acre. The Board was neither required by law nor made any effort to inform the landowners of the modification of the districts or the increased costs of the project (now required by K.S.A. 1986 Supp. 19-27a06).
The trial judge also found that the landowners were improperly assessed for improvements to service areas outside the benefit districts. The sewage collection lines were sized to service not only the areas inside the districts created, but also outside the districts. To benefit the county, the sewage treatment facility was constructed an additional mile from the Sub-District No. 5 boundary. The size of the plant location was in excess of the district’s needs. There was evidence to support that the Board had in the past an “established policy or custom” in designing and constructing sewage collection and treatment facilities for service of the ultimate watershed, and not just for areas covered within the formed sewer districts. Under these circumstances, it was a violation of due process to assess the entire cost of the project against the landowners.
In Quality Homes, Inc. v. Village of New Brighton, 289 Minn. 274, 183 N.W.2d 555 (1971), the city had designed and constructed a trunk sewer to eventually serve property not within the sewer district. In designing and sizing the trunk sewer, the city forecast the use to be made of that trunk sewer by all of the areas eventually to be served by it, but only assessed properties in the district. The court, in finding the assessment invalid, stated that where the assessment exceeds the amount of special benefits to the improvement district, the assessment is, as to the excess, a taking of private property for public use without just compensation.
Plaintiffs were denied due process under the prior law. They were not provided notice of the modification and the increased cost of the projects; therefore, they did have an actionable § 1983 claim.
Prevailing Parties
The Board contends that the plaintiffs were not prevailing parties because: (1) they did not succeed on any significant issue; (2) they did not have a substantial § 1983 claim; (3) they did not achieve the relief sought; and (4) their § 1983 claim did not arise out of the same operative facts as a nonconstitutional claim upon which they prevailed. The Board contends that since the plaintiffs did not prevail under 42 U.S.C. § 1983, they are not entitled to attorney fees.
The Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988, provides:
“In any action or proceeding to enforce a provision of Sections 1981, 1982, 1983, 1985, and 1986 of this title, tide IX of Public Law 92-318 [20 U.S.C. 1681 et seq.], or tide VI of the Civil Rights Act of 1964 [42 U.S.C. 2000d et seq.], the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”
Under 42 U.S.C. § 1988, the prevailing party should ordinarily be awarded attorney fees unless there are special circumstances making such an award unjust. A person is a “prevailing party” within the context of 42 U.S.C. § 1988 when he essentially succeeds in obtaining the relief he seeks in his claims on the merits. Gumbhir v. Kansas State Board of Pharmacy, 231 Kan. 507.
For a party to “prevail,” a judicial determination is not necessary. Parties are considered to have prevailed when they vindicate a right through a consent judgment, a settlement, or without formally obtaining relief. Maher v. Gagne, 448 U.S. 122, 129, 65 L. Ed. 2d 653, 100 S. Ct. 2570 (1980). In suits alleging § 1983 violations which result in settlements or consent decrees favorable to relief request by the plaintiff, the district court, on a § 1988 application for attorney fee's, must first determine whether the lawsuit, as a matter of law, involved the vindication of the plaintiff s rights secured by the Constitution or laws of the United States. J & J Anderson, Inc. v. Town of Erie, 767 F.2d 1469, 1475 (10th Cir. 1985).
The plaintiffs’ purpose in the lawsuits was to obtain relief from the assessments on their land. The relief obtained by the settlement amounts to approximately $1,150 per acre, exclusive of interest, for every property owner within the districts. The settlement agreement benefited not only the plaintiffs, but all property owners within the sewer districts.
The Board argues that the plaintiffs received nothing by way of settlement because the county only gave the landowners “credits” to which they would have been entitled in any event. They contend that the settlement only provided the landowners with a different method to pay the costs and retire the debt.
To support its claim, the Board presented evidence that within twenty years’ growth, buy-in and enlargement charges would occur at a rate sufficient to offset the reduced assessment for current landowners and pay off the approximately $4.5 million difference between actual costs and the amount to be paid by the plaintiffs and other landowners. The trial court rejected the testimony of the defendants’ expert witness, finding the expert’s testimony regarding when and what “buy-ins” would occur was “highly speculative” and “highly conjectural.”
The trial judge found that the credits are not and never will be guaranteed. Their existence can only become a reality if there is sufficient or substantial growth and increased demand for sewer facilities in certain areas of the county outside the current sewer districts. If sufficient growth does not occur, no credits will be received. If a landowner retains his land for the full twenty years, he must still pay the full assessment as due or lose his land for taxes. Only near the end of the bonding term would any landowner be relieved of some portion of the last payment or payments of assessments by credits.
We agree that the benefits received by plaintiffs through the settlement agreement are sufficiently substantial to make them prevailing parties under § 1983. The landowners’ obligation to pay for the existing sewer collection and treatment facilities will never exceed $2,550 an acre even if no growth occurs. The Board has given up its right to collect from landowners in the districts for existing sewer improvements of more than $2,550 an acre.
Was the plaintiffs’ § 1983 claim substantial and meritorious? A constitutional claim is not substantial if it is wholly insubstantial, obviously frivolous, plainly unsubstantial, or obviously without merit. Hagans v. Lavine, 415 U.S. 528, 537, 39 L. Ed. 2d 577, 94 S. Ct. 1372 (1974).
From the outset the plaintiffs have alleged not only violations of rights secured by the Fifth Amendment (a taking of their land arising from imposition of assessments substantially in excess of benefits conferred), but also violations of the Fourteenth Amendment (a violation of their due process rights arising from the manner in which defendants caused the sewer system and resulting assessment to grow to their eventual proportions).
The exaction from the owner of private property of the cost of 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. Norwood v. Baker, 172 U.S. 269, 279, 43 L. Ed. 443, 19 S. Ct. 187 (1898). Where a special assessment exceeds the amount of special benefits to the property assessed, the assessment is, as to such excess, a taking of private property for public use without just compensation. In addition to protecting property rights and personal rights, where state law does not provide an adequate remedy, § 1983 provides a vehicle for redress for the wrongful deprivation of property by persons acting under color of state law.
Under K.S.A. 19-2704 et seq. as it then existed, the Dutoits in their original action raised a substantial, nonfrivolous claim — a “taking” of property sufficient to raise a due process issue — to a constitutionally significant level. Having exhausted their administrative remedies, the Dutoits were not required to pursue all possible state remedies, but could file a § 1983 action to resolve the issues. See Dutoit v. Board of Johnson County Comm’rs, 233 Kan. at 1004-05.
The Board argues that the plaintiffs are not entitled to a § 1988 award of attorney fees because their § 1983 claim did not arise from the same operable facts as the state court claims. We agree that, under Gumbhir v. Kansas State Board of Pharmacy, 231 Kan. 507, the state claim filed by the plaintiffs must involve a common nucleus of operative facts with a substantial federal claim before a § 1988 claim for attorney fees is proper.
Where a prevailing party is successful on a single substantial claim brought in the context of a civil rights suit, success on all claims made is not required. Reel v. Arkansas Dept. of Correction, 672 F.2d 693, 697 (8th Cir. 1982); Busche v. Burkee, 649 F.2d 509 (7th Cir.), cert. denied 454 U.S. 897 (1981); Oldham v. Ehrlich, 617 F.2d 163, 168 n.9 (8th Cir. 1980). It is sufficient if a significant issue is determined in the plaintiff s favor and leads to the achievement of some of the benefits sought by bringing suit. Bonnes v. Long, 599 F.2d 1316 (4th Cir. 1979), Nadeau v. Helgemoe, 581 F.2d 275 (1st Cir. 1978). A person may be a prevailing party on a nonconstitutional claim brought in the same action with a substantial constitutional claim, but in order for attorney fees to be recovered for the nonconstitutional claim, the. two claims must arise from the same nucleus of operative facts. Reel v. Arkansas Dept. of Correction, 672 F.2d at 697.
In Gumbhir, two claims were made in the original action: (1) that there was an unconstitutional delegation of legislative authority by the legislature to a nongovernmental agency and, (2) that the application of the statute violated his rights under the federal Constitution. The two claims asserted by Gumbhir were based on two separate acts. The first, the claim upon which Gumbhir prevailed, was based upon the act of the legislature delegating authority to a nongovernmental agency. The second claim was based on the act of that agency applying the statute. Each of Gumbhir’s theories of relief contained different elements. Since Gumbhir was a prevailing party under his state claim, he was denied a § 988 award for attorney fees.
In the present case, plaintiffs’ claims of inverse condemnation, arbitrary and unreasonable action, deprivation of due process, and taking property without just compensation all arise out of the assessment against plaintiffs’ property. The plaintiffs’ claims share a common nucleus of operative facts. The trial court correctly determined there was a § 1983 violation upon which to base a claim for attorney fees under § 1988.
The Board argues that the plaintiffs were not a prevailing party because their suit was not the substantial factor in the settlement nor were the terms of settlement required by federal law or the Constitution. They also contend that the settlement was reached, not because of the merits of the suit, but because the Board did not want to bear the increasing costs of the litigation.
The plaintiffs must demonstrate that their lawsuits are linked causally to the relief obtained, i.e., the suit must be a “substantial factor or a significant catalyst” in prompting the defendants to act or cease their behavior. Plaintiffs must also demonstrate that the defendants’ conduct in response to the lawsuit was required by the Constitution or federal law, i.e., the defendants’ actions must be legally required. Supre v. Ricketts, 792 F.2d 958, 962 (10th Cir. 1986).
The trial judge found that defendants’ settlement was not merely an attempt to avoid additional costs and was in fact settled because of the lawsuit. The settlement required defendants to pay $4.5 million in costs. The Board has posed no other theory as a reason for the settlement, even though avoiding additional costs can always be raised as an argument for settling any case. We agree, under the circumstances, that the lawsuit was a substantial factor in prompting the defendants to lower the assessments of the plaintiffs’ properties. We also find that the defendants’ conduct in response to the lawsuit was required by the Constitution or federal law, i.e., the defendants’ actions were legally required.
Adequate Circumstances to Deny an Award of Fees
The Board argues that because public improvements which benefited the plaintiffs were requested by plaintiffs and performed under statutory procedure, special circumstances exist and attorney fees are not appropriate.
We disagree. The mere fact that an individual requests some action by a governmental entity does not mean that the individual consents to the government taking actions which exceed its constitutional authority.
The Amount of the Award
The Board contends that the amount of fees awarded by the trial court was excessive and not reasonable because plaintiffs did not prevail upon the vast majority of their claims, that the attorney fees were based on speculative matters, and that the attorney fees awarded included costs and expenses which were not reasonably necessary and were unrelated to proof or issues.
In § 1983 actions, various guidelines for attorney fee awards exist. Section 1988 fee awards are authorized for private enforcement of statutes, or in cases of common fund and common benefits awards.
Common fund cases are normally class action type litigation which requires the lawyer to contract for a contingent fee. The clients (the class) agree to compensate their attorneys based on a percentage of the recovery. (For a discussion of attorney fees awarded in common fund cases see Gigot v. Cities Service Oil Co., 241 Kan. 304, 737 P.2d 18 [1987]).
Under § 1983 actions, statutory fee awards pursuant to § 1988 are also contingent. Attorney fees are awarded only to counsel of the prevailing parties. The attorney for the prevailing party is then entitled to a reasonable fee set by the court. The factors to be considered include: (1) the number of hours spent on the case by the various attorneys and the manner in which they were spent; (1) the reasonable hourly rate for each attorney; (3) the extent, if any, to which the quality of the attorney’s work mandates increasing or decreasing the amount to which the court has found the attorney reasonably entitled; and (4) the benefit produced by the lawsuit (sometimes referred to as “lodestar”).
Attorney fees awarded against governmental units should be calculated based on the actual hours reasonably spent and in the same manner as one would bill his own client. In determining which hours reported were reasonably expended and hence are billable to the adversary, the court should examine the total number of hours reported by each lawyer and question reported time significantly in excess of the norm. Items that are normally itemized and billed in addition to the hourly rate should be included in fee allowances in § 1983 claims if reasonable in amount. Expenses for long-distance telephone charges, copying costs, and other expenses should be allowed as fees only if the expenses are usually charged separately in the area. Out-of-pocket costs not normally absorbed as part of law firm overhead may be reimbursed. The costs of reasonable expert witness fees and copies of depositions necessary to the litigation of the case are also allowable. Ramos v. Lamm, 713 F.2d 546 (10th Cir. 1983).
Here, prior to determining the amount of the fee awarded, the trial judge carefully reviewed the factors to be considered when awarding attorney fees to prevailing plaintiffs. He observed that this litigation involved highly technical fields of engineering, demographics, and economics. It required significant research because of the complex nature of the litigation. The attorneys were successful in arriving at a settlement that resulted in a net savings to their clients.
In his well-reasoned memorandum decision, the trial judge determined that there were no special circumstances existing that would preclude the award of attorney fees to the prevailing plaintiffs. He then carefully set out the following factors he considered when awarding attorney fees to the plaintiffs: that the plaintiffs achieved only partial success on the claims presented, the excellent end result, the hours and rates submitted by the attorneys, what services were duplicated, the experience of each attorney, and what fees are traditionally received from a fee-paying client. After reviewing the records submitted by the attorneys, the judge made extensive findings and adjusted the fees requested by the plaintiffs, in excess of $850,000, to $585,000.
Where established guidelines for determining the size of the attorney fee to be awarded are followed by the trial judge, appellate review is limited to abuse of discretion. Under the circumstances, the trial judge did not abuse his discretion. The fees and expenses awarded by the district court were reasonable.
Assessment Against the County
The Board contends that the attorney fees should have been assessed against the separate sewer districts rather than the county. It argues that, because the county commission was acting in its capacity as the governing body of the three sewer districts, the sewer districts are responsible for the costs.
In Kentucky v. Graham, 473 U.S. 159, 164, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985), the Supreme Court stated:
“Section 1988 does not in so many words define the parties who must bear these costs. Nonetheless, it is clear that the logical place to look to recovery of fees is to the losing party — the party legally responsible for relief on the merits. That is the party who must pay the costs of the litigation, [citation omitted] and it is clearly the party who should also bear fee liability under § 1988.”
This case is analogous to Bell v. City of Topeka, 224 Kan. 147, 577 P.2d 1193 (1978). There, certain property owners brought an action to enjoin the City of Topeka from enforcing certain ordinances levying and assessing part of the cost of improving a street against the real estate within a benefit district. In the first Bell case, Bell v. City of Topeka, 220 Kan. 405, 553 P. 2d 331 (1976), it was determined that the assessment against the property owners within the proposed benefit district was unjust, unreasonable, and arbitrary and that the manner in which the district had been created was unlawful. In the second appeal (224 Kan. 147), the City contended, among other issues, that the trial court had erred in assessing certain accrued interest against the City, rather than the improvement district. We disagreed, finding that it would be manifestly unjust to assess the interest against the benefit district because the delay was caused by the wrongful, illegal, and unreasonable acts of the City.
It would be against public policy to assess against a benefit district, the prevailing party, damages or expenses arising out of a lawsuit contesting the governing body’s action. Since the trial judge found that the county is legally responsible, he must assess the costs resulting from its acts against the county as a whole. The trial judge correctly assessed costs.
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The opinion of the court was delivered by
Holmes, J.:
This case was originally filed in the United States District Court for the District of Kansas and comes to this court by certification from that court pursuant to the Uniform Certification of Questions of Law Act, K.S.A. 60-3201 et seq. The order of the certifying court meets all the requirements of the act and we accepted certification.
The order from the United States District Court provides in pertinent part:
“Pursuant to K.S.A. 60-3201 et seq., this court, upon its own motion, hereby certifies to the Kansas Supreme Court the following questions of Kansas law, which are deemed to be determinative of this action and as to which no controlling precedent exists in the decisions of the Kansas Supreme Court or Kansas Court of Appeals.
(1) Whether Kansas would recognize a common law tort action for intentional interference with a prospective civil action by spoliation of evidence?
(2) If so, whether such a cause of action against plaintiff s employer would be barred by the exclusive remedy provisions of the Kansas Workmen’s Compensation Act, K.S.A. 44-501 et seq.?
(3) If not barred by the Workmen’s Compensation Act, whether, under the facts of this case, plaintiff has sufficiently alleged such a cause of action?
“In accordance with K.S.A. 60-3203, the court sets forth the following statement of relevant facts. This case arises out of injuries suffered by the plaintiff employee in an on-the-job accident. The accident occurred when a piece of equipment called a T-clamp failed due to an alleged defect. The T-clamp was manufactured and sold to the defendant employer Rosel Well Perforators, Inc., by the defendants Gearhart Industries, Inc., Pengo Industries and Geosource, Inc. Plaintiff alleges that immediately after the accident, an agent of Rosel Well Perforators, Inc., intentionally destroyed the T-clamp so that plaintiff would no longer have access to it for purposes of potential litigation.
“Plaintiff recovered workmen’s compensation benefits for his injuries. He brings this action against Gearhart Industries, Inc., Pengo Industries and Geo-source, Inc., on product liability and breach of warranty claims. He also makes claims against his employer, Rosel Well Perforators, Inc., for ‘interference with a prospective civil action by spoliation of evidence.’ Plaintiff claims that, as a direct result of Rosel Well Perforators, Inc.’s, destruction of the T-clamp, plaintiff may be unable to produce and/or show how the T-clamp failed and caused his injuries. Thus, plaintiff contends that he has lost a valuable expectancy in recovering against Gearhart Industries, Inc., Pengo Industries and Geosource, Inc., on his product liability and breach of warranty claims.
“Rosel Well Perforators, Inc., moves to dismiss plaintiff s cause of action for interference with a prospective civil action by spoliation of evidence for failure to state a claim upon which relief can be granted. Defendant argues that plaintiffs claim for spoliation of evidence is a common law claim for damages for injuries for which plaintiff has already recovered compensation under the Kansas Workmen’s Compensation Act, and that the Act provides plaintiff his sole remedy. Defendant also argues that Kansas law does not recognize an independent tort for interference with a prospective civil action by spoliation of evidence as alleged by plaintiff. Finally, defendant argues that even if Kansas law did recognize such a cause of action, the facts alleged by plaintiff would be insufficient to state a claim.
“This court determines that these questions represent significant issues of state law to which no controlling Kansas precedent exists to guide our decision. Furthermore, the court finds that these questions will be determinative of plaintiff s cause of action for the tort of spoliation of evidence against Rosel Well Perforators, Inc., and directly affects plaintiffs claims against Gearhart Industries, Inc., Pergo Industries and Geosource, Inc.”
At the outset we note that this matter comes to us on the basis of the pleadings and without the benefit of any discovery. Under these circumstances, we must assume the facts stated in the plaintiff s complaint are true even though they might appear somewhat improbable and despite what may be insurmountable problems of proof. Thus, we accept plaintiff s allegations that an agent of his employer intentionally destroyed the T-clamp for the purpose of denying plaintiff access to evidence to be used in an action against the manufacturer and distributors of the T-clamp. The plaintiff describes his cause of action as being a new tort denominated as “the intentional interference with a prospective civil action by spoliation of evidence.” We now turn to the question of whether this court should adopt such a cause of action by judicial decree.
Plaintiff readily concedes that the tort of spoliation of evidence is relatively new and so far as we can determine very few states have actually recognized such a tort. Absent some special relationship or duty rising by reason of an agreement, contract, statute, or other special circumstance, the general rule is that there is no duty to preserve possible evidence for another party to aid that other party in some future legal action against a third party.
First, a distinction must be made regarding the basis for a suit involving lost or destroyed evidence. Such a suit may be based upon negligence, wherein the plaintiff asserts the defendant negligently destroyed the evidence which impaired the plaintiff s right to sue a third party tortfeasor; or such a suit may be based upon intent, in which plaintiff asserts the defendant intentionally destroyed the evidence. The plaintiff s complaint, in the instant case, titles his cause of action as “Tortious Interference with Prospective Civil Action by Spoliation of Evidence.” In setting forth his allegations, the plaintiff states the defendant intentionally destroyed and/or disposed of the T-clamp.
More states have been faced with cases involving the negligent destruction of evidence than cases involving the intentional destruction of evidence. When negligence is the basis of the suit alleging an economic injury resulting from the destruction of evidence, a duty on behalf of the defendant arising from the relationship between the parties or some other special circumstance must exist in order for the cause of action to survive. In Bondu v. Gurvich, 473 So. 2d 1307 (Fla. Dist. App. 1984), a hospital had failed to preserve certain medical records pertaining to plaintiff. As a result, plaintiff lost a medical malpractice lawsuit against certain physicians because, in the absence of the hospital records, plaintiff was unable to obtain an expert witness. The Florida Court of Appeals, over a strong dissent by Chief Judge Schwartz, held that because of the hospital’s statutory duty to maintain and make available medical records, plaintiff would be allowed to pursue a claim against the hospital for alleged spoliation of evidence. The basis for the decision in Bondu was a Florida statute which imposed a duty upon all hospitals to maintain and make available to patients their medical records, and the Court expressly found that it was the hospital’s breach of that duty which gave rise to plaintiff s cause of action. Thus, the tort recognized in Bondu was based upon a statutory duty, and not upon any independent common-law duty to preserve evidence. It should be noted that in Bondu the plaintiff had also asserted a claim based upon the intentional destruction of records which was dismissed for failure to state a cause of action. No appeal was taken from that ruling.
In Coley v. Ogden Mem. Hosp., 107 App. Div. 2d 67, 485 N.Y.S.2d 876 (1985), plaintiff sustained injuries in the course of his employment when he fell from a ladder which collapsed. The ladder was discarded. Plaintiff sued his employer, alleging that the failure to preserve the ladder precluded discovery of the identity of its manufacturer and thereby foreclosed plaintiffs potential product liability action against third parties. The court affirmed the trial court’s dismissal of plaintiff s claim, stating:
“We are unable to identify any duty owed by defendant to plaintiff with regard to the safekeeping of the ladder. The record reveals no promise by defendant or its employees to inspect or safeguard the ladder for plaintiff s benefit . . . .” 107 App. Div. 2d at 69.
A federal district court applying Pennsylvania law allowed a negligence claim based on failure to preserve physical evidence in Pirocchi v. Liberty Mutual Insurance Co., 365 F. Supp. 277 (E.D. Pa. 1973). There, plaintiff was injured in the course of his employment when he fell from a metal chair. After the accident, a claims adjuster employed by defendant took possession of the chair for the purpose of investigating a third-party action against the chair manufacturer or other possible third-party defendants. Plaintiff retained counsel for the purpose of pursuing his third-party claims. Thereafter, the metal chair disappeared, and plaintiff filed suit claiming defendant’s negligence destroyed his cause of action against third parties. The court in Pirocchi expressly recognized that there is no common-law duty to preserve evidence. It was conceded that defendant “owed no duty to Pirocchi to preserve this piece of evidence to aid him in his pursuit of a third party action.” 365 F. Supp. at 279. Instead, the duty arose because defendant affirmatively took possession of the chair for the purpose of investigating a potential civil action by plaintiff against the manufacturer and others. Having voluntarily embarked upon a course of conduct designed to assist plaintiff, the defendant assumed a duty to the plaintiff.
Similarly in Parker v. Thyssen Min. Const., Inc., 428 So. 2d 615 (Ala. 1983), the Alabama Supreme Court found no independent common-law duty on the part of an employer to preserve evidence for an employee’s potential civil action against third parties. In Parker, plaintiff was injured on the job when a concrete wall collapsed. Following the accident, plaintiff s employer collected samples of the concrete. Plaintiff later brought suit against his employer, alleging that the employer’s negligent action in collecting the samples and failing to preserve them wrongfully interfered with and impaired his ability to pursue claims against the manufacturer and suppliers of the cement. The Alabama court affirmed summary judgment against plaintiff.
Plaintiff contends that the foregoing cases and others similar to them are not persuasive because they are based upon negligence as opposed to an intentional interference with a third-party action. While this may be true, the cases are authority for the general rule that absent some special relationship or circumstance there is no duty to preserve evidence for the benefit of another.
Only two courts have recognized the tort of intentional interference with a prospective civil action by spoliation of evidence. In Smith v. Superior Court, 151 Cal. App. 3d 491, 198 Cal. Rptr. 829 (1984), the plaintiff was injured when the rear wheel and tire flew off a van and crashed into plaintiff s windshield. Immediately after the accident, the van was towed to Abbott Ford, Inc., the dealer that had customized the van with “deep dish mag wheels” before selling the van. Within a few days following the accident, Abbott Ford agreed with Smith’s counsel to preserve the physical evidence, consisting of certain automotive parts, for later use in a possible action against Abbott Ford and/or others. The evidence was subsequently lost or destroyed making it impossible for Smith to pursue her claim. She then sued alleging a cause of action against Abbott Ford for “tortious interference with [a] prospective civil action by spoliation of evidence,” the identical claim asserted in the present action before this court. The court considered various arguments pro and con on the question of recognizing such a tort and found it to be analogous to the tort of intentional interference with a prospective business advantage. That tort, the court stated, allows recovery for interference with business relationships or expectations where the expectations of the parties are the subject of an unenforceable contract. The importance of “probable expectancies” had been recognized by California case law dealing with the interference with prospective business advantage and all that a plaintiff is required to allege is a “reasonable probability” that a contract or profit would have resulted but for the defendant’s acts. The court found that a prospective civil action in a product liability case is also a “probable expectancy” to be protected from interference. 151 Cal. App. 3d at 502.
One other state has followed the lead of California in recognizing the tort for intentional interference with a prospective civil advantage by spoliation of evidence. In Hazen v. Municipality of Anchorage, 718 P.2d 456 (Alaska 1986), a tape recording was táken of the plaintiff by an undercover police officer immediately prior to her arrest for prostitution at her massage parlor. The plaintiff claimed, in an action against the arresting officers, the city, and the city attorney, that the tape contained exculpatory statements and on the tape she denied sex was available at her parlor. Later, however, the tape somehow became inaudible and the plaintiff asserted it had been intentionally altered. The Alaska Supreme Court found Smith persuasive and held plaintiff had a cause of action for intentional interference with a pro spective civil action by spoliation of evidence. The court stated the plaintiff s false arrest and malicious prosecution actions were valuable probable expectancies which were destroyed or diminished by the destruction of the tape.
Both Smith and Hazen are readily distinguishable from the case before us. In Smith, Abbott Ford had agreed with Smith’s counsel that it would safeguard and preserve the automotive parts for inspection and use by the plaintiff, thereby creating a duty to do so. No such agreement exists in the case at bar. In Hazen, the destruction of an allegedly exculpatory tape would presumably make conviction easier for the prosecution. In both cases the evidence was destroyed by the adverse party in pending litigation to the direct benefit of such party. That is not the situation with which we are faced. To the contrary, it would be to the disadvantage of the defendant herein to destroy any evidence because as the employer of plaintiff it would have been subrogated to any recovery Koplin might have obtained to the extent of the workers’ compensation payments made to Koplin. K.S.A. 44-504. Additionally, defendant here was not the adverse party in any action pending or contemplated by plaintiff.
Plaintiff readily concedes in his brief that “no jurisdiction has recognized a general common-law duty to preserve evidence” and that “under the present case law, Rosel Well has no articulated common-law duty to preserve Koplin’s evidence.” It is fundamental that before there can be any recovery in tort there must be a violation of a duty owed by one party to the person seeking recovery. Malone v. University of Kansas Medical Center, 220 Kan. 371, 374, 552 P.2d 885 (1976); Black’s Law Dictionary 1660-61 (4th ed. rev. 1968); 74 Am. Jur. 2d, Torts § 8, 86 C.J.S., Torts § 6. Plaintiff urges that this court should not hesitate to adopt the new tort or any other new remedy whenever a person suffers loss at the hands of a “wrongdoer.” The problem with this argument is that, absent a duty to preserve the T-clamp, defendant is not a wrongdoer and had an absolute right to preserve or destroy its own property as it saw fit. To adopt such a tort and place a duty upon an employer to preserve all possible physical evidence that might somehow be utilized in a third-party action by an injured employee would place an intolerable burden upon every employer. Plaintiff argues that not to recognize this new tort would encourage “all future defendants in every case to avoid liability by destroying and/or disposing of evidence.” Such an argument, while perhaps relevant to Smith and Hazen, does not apply to the facts of this case. As pointed out earlier, Smith and Hazen involved cases wherein the defendants or potential defendants in the underlying case destroyed the evidence to their own advantage. Whether we would recognize a cause of action under similar facts is not before this court for determination and we leave that decision for another day. Here, we clearly have a different factual setting in which the defendant destroyed its own property, for whatever reason, at a time when Koplin had no claims against his employer except pursuant to the workers’ compensation laws. There are no special circumstances or relationships which created any duty for defendant to preserve the T-clamp.
An analogouos situation was presented in Hokanson v. Lichtor, 5 Kan. App. 2d 802, 626 P.2d 214 (1981). Hokanson was injured in an automobile-motorcycle accident with a vehicle driven by Margaret E. Faulkner. Hokanson sued Faulkner for injuries sustained and she, through her insurance carrier, had Hokanson examined by Dr. Lichtor. Hokanson contended Lichtor was going to commit perjury in his testimony about Hokanson’s injuries. Following trial in the personal injury action, Hokanson filed suit against Dr. Lichtor, Faulkner’s insurance carrier State Farm Mutual Insurance Company, and H. Lee Turner, attorney for Faulkner and State Farm. Hokanson alleged that he had been damaged by the perjured testimony of Lichtor and that the doctor, State Farm, and Turner had all been engaged in a conspiracy for Lichtor to commit perjury in the original suit. The district court dismissed Hokanson’s claim for failure to state a cause of action and Hokanson appealed. The Court of Appeals held:
“Civil conspiracy does not become actionable without the commission of some wrong that would give rise to a cause of action independent of the conspiracy.” Syl. ¶ 6.
“In the absence of a statute authorizing a cause of action for perjury, no civil cause of action for damages exists for perjury or conspiracy to commit perjury.” Syl. ¶ 7.
The court stated:
“As we view the record before us, and after having heard oral argument, plaintiff s intended cause of action ultimately depends upon one alleged tortious incident — the false testimony of Lichtor at the first trial, supported by the conspiracy of Turner and State Farm. Thus, in our opinion, the question presented is whether a civil action exists for either perjury or conspiracy to commit perjury.
“The overwhelming majority of authority from other jurisdictions holds that no civil cause of action for damages exists for either perjury or conspiracy to commit perjury. It is well settled that a plaintiff who has lost his case because of perjured testimony cannot sue the perjurer for damages. Morgan v. Graham, 228 F.2d 625, 627 (10th Cir. 1956); Anchor Wire Corp. v. Borst, 277 App. Div. 728, 102 N.Y.S.2d 871 (1951); 70 C.J.S., Perjury §§ 92-93. See Annot., 54 A.L.R.2d 1298, § 7. No civil action for damages lies for false testimony or for subornation of false testimony. Annot., 31 A.L.R.3d 1423, § 2[a], Most courts reason that the remedy for perjury is criminal punishment or an action to set aside the judgment rather than a civil action for damages.” pp. 804-05.
The court discussed at length the reasoning behind the general rule and in doing so recognized that there are criminal penalties for perjury and conspiracy. However, the court did not hold that the criminal sanctions were exclusive , and precluded such an action if a valid cause of action was otherwise stated. The Court of Appeals followed the general rule and affirmed the trial court’s dismissal of the action. The analogy between a civil action based on perjured testimony and a civil action based on destruction of evidence was made in Bondu v. Gurvich, 473 So. 2d 1307, where Chief Judge Schwartz in his dissenting opinion on rehearing stated:
“Upon reconsideration of the issue in the light of the motion for rehearing, I am persuaded that the tort created by the majority opinion, which arises when a failure to provide required hospital records ‘results’ in a loss of the underlying malpractice action, should not be recognized. In my view, such a rule runs counter to the basic principle that there is no cognizable independent action for peijury, or for any improper conduct even by a witness, much less by a party, in an existing lawsuit. E.g., Kessler v. Townsley, 132 Fla. 744, 182 So. 232 (1938). Were the rule otherwise, every case would be subject to constant retrials in the guise of independent actions.” 473 So. 2d at 1313-14.
Plaintiff contends the analogy of the present case to Hokanson is misplaced because here the plaintiff has no other remedy, such as a motion for new trial, and defendant is not subject to criminal prosecution. Be that as it may, the policy behind the general rule and doctrine recognized in Hokanson is sound and applies to a destruction of evidence as well as perjured testimony.
Defendant points out other considerations which it asserts militate against adoption of the “new tort” of spoliation of evidence. Among them are the generation of endless litigation (as recognized by Chief Judge Schwartz in Bondu); inconsistency with the intent of the workers’ compensation laws; rank speculation as to whether the plaintiff could have ever recovered in the underlying action and, if so, the speculative nature of the damages; the limitless scope of the new duty which would be created; and the unwarranted intrusion on the property rights of a person who lawfully disposes of his own property.
We conclude that absent some independent tort, contract, agreement, voluntary assumption of duty, or special relationship of the parties, the new tort of “the intentional interference with a prospective civil action by spoliation of evidence” should not be recognized in Kansas.
The answer to the certified question of whether Kansas would recognize a common-law tort action for intentional interference with a prospective civil action by spoliation of evidence is in the negative under the facts of this case. In view of the decision reached on the first question, there is no need to consider the other questions certified by the federal district court.
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|
The opinion of the court was delivered by
Robb, J.:
This is an appeal by the state in a quo warranto action from the judgment of the trial court awarded to defendant, and from all rulings, decisions, orders, and findings and conclusions of that court including the overruling of the state’s motion for new trial.
On January 11, 1951, the state filed a petition which alleged:
Defendant, the United Royalty Company (hereinafter referred to as United) was a common law trust with its principal place of business at Tulsa, Oklahoma; it had three trustees, one of whom was managing trustee. On August 11, 1922, United was organized as a common law, or express, trust under the laws of Oklahoma for a term of twenty-one years and thereafter entered Kansas where it transacted business as a corporation and has done so continuously ever since without applying for, or obtaining, permission so to do, and without filing the required reports or paying fees and taxes. No approval or authority had been granted to United to engage in business in this state as a foreign corporation under G. S. 1949, 17-501 to 17-503, inclusive.
Defendant has an organization known as a “Massachusetts trust” or “express trust” and is subject to the provisions of the statutes controlling corporations within the state of Kansas and should be required to conform thereto. The life of United had expired by its own trust agreement and it is without right or power to continue any operation. Since 1922 United had transacted business as a corporation and had continuously engaged in buying and acquiring, owning and holding, selling and trafficking in real estate, or interest therein, in Kansas for speculation and profit without any purpose or intention of exploring or developing such real estate for mining purposes or producing, marketing, or selling the oil, gas, or other minerals lying in or under such real estate. That while the oil, gas, and mineral leases, and royalty conveyances in Sumner county were but an assignment of interest in and to the oil and gas royalty, United has claimed that such conveyances granted, leased and let to it the interest therein contained for the purpose of mining and exploring for and producing oil and gas and other minerals. The business transacted by United as outlined was not the ordinary business United was organized to do. Such business was unlawful and contrary to public policy and the transactions were and are null and void. The leases and conveyances were obtained for the sole purpose of speculating, selling at a profit, and controlling and preventing development as well as for the further purpose of controlling and preventing the leasing, selling, and alienation of the real estate, and to encumber its record title. Unless United is ousted from the exercise of such corporate power, it will continue such activity in contravention of public policy.
Failure of United to secure a charter or to file the annual reports required by G. S. 1949, 17-702 makes it liable for the penalty imposed by G. S. 1949, 17-705. The exact amount of such penalty is unknown and not readily ascertainable but can be secured and will probably amount to many thousands of dollars.
It was further alleged that the trustees have abused and misused their powers by transacting business in an unsafe, unfair, and dishonest manner and that they have mismanaged United’s affairs under the trust agreement and successful operation is impossible and unworkable thereunder.
United secured royalty conveyances from various landowners in Sumner county, and in other Kansas counties, by a document described as a royalty conveyance and gave in exchange therefor certain units in the United common law trust. This conveyance was an interest in land and thereby land titles were clouded which made it impossible for the owner to sell, mortgage, lease, and alienate such property. The giving of units, or shares, in United in return for these conveyances constituted transactions which were unlawful and contrary to the blue sky law and the speculative securities act; they were unlawful, and in direct violation of state statutes and against the public policy, whereby a nuisance was created. Under the 1919 Oklahoma session laws, chapter 16, United could be organized only for a period of twenty-one years and would have no further power after August, 1943. It had represented to the unit-holders that it was just the same as a corporation in that there was no personal liability to them, which was not true because the unit-holders would be in the same position as are individuals who have not completed organization of a corporation. In past years large debts had been accumulated in Oklahoma, Arkansas, and Texas, for which liability could attach to the unitholders, but in relying on United’s representations, the unitholders were led to believe there was no liability. This was a fraud upon the unitholders and the public. Of the 50,000 acres of royalty which United primarily intended to obtain, 16,000 acres were to be around wells being drilled and on structures where wells were about to be started. United did not carry out either one of these purported intentions, as represented and promised, which likewise was against the public interest.
The entire plan had never been carried out nor has there been an attempt so to do. United, in violation of the trust, unlawfully, wrongfully, and fraudulently and without authority turned over to the Liberty Royalty Corporation in excess of $50,000 in cash and over 900,000 units of United together with some of the acquired royalty which was a deliberate violation, abuse, and misuse of power by United. Out of the assets of the trust corpus United was forced to pay $36,000 to the federal government in claims, interest, and penalties for failure, neglect and refusal to pay federal income taxes. The trustees acknowledged in writing that due to difficulty in operating, the trust should be dissolved but that they know of no way to terminate it. This makes necessary the appointment of a receiver to take charge of United’s property in Kansas so that it will not be conveyed or transferred to other parties and thus defeat collection of fees and penalties due to the state of Kansas.
It was also further alleged that United has continued to engage in business as a corporation in the state and to enjoy corporate rights without permission or authority of the state and should be enjoined and restrained from so doing and more particularly, from acquiring, trafficking in, or selling any real estate, or interest therein, until final order of the court.
United claimed and collected royalty payments on real estate in divers counties of the state and thus derived royalty payments from the sale of oil and gas produced by others from various tracts of land and United has acquired, held, and now holds such interest as a corporation. If a receiver is not appointed, United, acting as a corporation, would transfer its holdings outside the jurisdiction of the district court of Sumner county, making necessary a multiplicity of suits in addition to loss of fees, as above stated. The appointment of a receiver would malee possible a full determination of the amount United owes the state.
Finally, it was alleged United should be ousted from the state, that its exchanges of units and speculative securities for royalty conveyances should be adjudged null and void, and that United should be permanently restrained and enjoined from carrying on business in the state as a common law, or express, trust.
United answered on September 1, 1951, that it was an express trust organized on August 11, 1922, under the laws of the state of Oklahoma (1949 Supp. Title 60, Section 172) and that the trustees were M. W. Watts, A. B. Rowley, and Samuel N. Brown. United’s amended declaration of trust was recorded in the Sumner county, Kansas, register of deed’s office on August 25, 1924, and on July 27, 1943, it was further amended to show extension of the trust for twenty-one years after August 11, 1943. The business of United in Kansas is regulated only by the speculative securities act (G. S. 1949, 17-1223, et seq.). United was not then and had not been since 1929 and did not intend to become engaged in any activities in contravention of such act. United claimed it was not a corporation organized under the laws of any other state; that it was not seeking to do business in the state as a foreign corporation (G. S. 1949, 17-501, et seq.); that as an express trust it was not required to apply for a charter; that it was not required to file annual reports and pay fees (G. S. 1949, 17-702), or penalties (G. S. 1949, 17-705). United was an unincorporated association within the meaning of and as defined by G. S. 1949, 17-2601 (K).
United further stated that the state’s interpretation of the statute would be in violation of article 4, section 1, of the federal constitution in regard to giving full faith and credit to the Oklahoma statutes, and enforcement thereof would violate section 1 of the fourteenth amendment of the federal constitution because it would deprive United of its property without due process of law. This action was not one the sovereign state of Kansas is authorized to prosecute in the public interest but is for the benefit of certain individuals, who are unknown to United, but whose individual rights are barred by the statute of limitations (G. S. 1949, 60-306 [Third]).
Finally, United expressed its desire to comply with the equitable orders of the district court or of any other court for the correction of any and all abuses as may be properly, legally, and finally determined.
The 1941 Oklahoma statute referred to in United’s answer (Title 60, Section 171) in substance provides that an express trust may be created and empowers the trustees thereof to carry on real or personal property transactions such as United has done “. . . and generally to do any lawful act in relation to such trust property which any individual owning the same absolutely might do.” Section 172 states how a trust may be created, the recording of the written agreement, and that the period of existence is not to exceed twenty-one years, or life or lives of beneficiary or beneficiaries. Here it should be noted there was no provision for an extension of the trust.
Section 173 provides for the succession of trustees.
Then section 174 provides that the liabilities of the trust extend to the whole of the trust estate “but no personal liability shall attach to the trustee or the beneficiaries of such trust for any such act, omission or liability.” The 1949 Supplement to the Oklahoma statutes, Title 60, Section 172, contains some of the same provisions as did the same section of the 1941 statutes, pertinent parts of which read as follows:
"No such express trust shall be valid unless created first, by a written instrument subscribed by the grantor or grantors duly acknowledged as conveyances of real estate are acknowledged, and recorded in the office of the county clerk of each county wherein is situated any real estate conveyed to such trustee . . . Such express trusts shall be limited in the duration thereof either to a definite period of not to exceed twenty-one (21) years, or to the period of the life or lives of the beneficiary or beneficiaries thereof in being at tlie time of the creation of the trust . . . the time of the existence of such express trust may be extended for a period of not exceeding twenty-one (21) years at any one time, by a written instrument subscribed by all beneficiaries of such express trust, duly acknowledged as are conveyances of real estate. . . .”
The foregoing provision is the first time an extension of a trust was provided for under the Oklahoma statutes and, as noted, the enactment thereof was subsequent to the amendment of 1943 extending the life of United for an additional twenty-one years.
The agreement of declaration of trust made on August 11, 1922, between C. E. Pochel, Olin Burnham and H. L. Landon, as the original trustees, and the three same named persons as subscribers, showed that 2,000,000 units were to be issued by United for royal ties representing an undivided one half interest in 50,000 acres of mineral lands located in several oil bearing states. This was to be strictly a pooling organization. The trustees had neither the right to purchase nor to sell any of the royalties. The trustees agreed to appoint a bank, or banks in each state to act as trustees solely for the purpose of distributing to the unitholders all of the accumulated dividends on the first day of each month. However, before distributions were made all expenses were to be deducted but none were to be deducted until after the pool was declared fully closed. The trustees had absolute control of all monies in the bank. Each and every unit shared equally in the profits of the 50,000 acres. Seventy per cent of the 2,000,000 units were to be issued to the fee owners of the 50,000 acres and the remaining thirty per cent to the trustees for the creation of the pool, and the trustees were to pay all expenses until the pool was declared fully closed. The units were evidenced by negotiable certificates of interest as cestui que trustent of no par value in such proportion, kind and amount requested by the landowners. The trustees agreed to hold the property transferred to them together with the proceeds and profits thereof for the benefit of the holders, as stated. It was intended by the parties to create a real trust and not a partnership. All property belonged to the trustees and they were the masters.
The Lust would be designated “The United Royalty Company” with three trustees and in case a vacancy occurred from any cause the remaining trustees would fill the vacancy by appointment from the unitholders.
The trustees were to hold the legal title to all property, to exercise exclusive management, to assume all contracts for obligations and liabilities in connection with all things of value assigned to them but were not to be personally liable. The subscribers or any persons associated or acting with them were to be held harmless and indemnified from and against any loss, cost, expense, or liability of the trust. They used a common seal. They could collect, sue, receive and receipt for all monies and could employ counsel, prosecute, defend and settle lawsuits.
Then followed provisions regarding stated, meetings and other matters with which we are not presently concerned and will not now discuss.
The trustee could elect officers with the authority and duties usually incident to like officers in corporations and determine the duties thereof, fix the compensation of such officers, agents or servants they employed “. . . and are likewise authorized to pay themselves such compensation for their services as they may deem reasonable.”
The trustees were not liable for errors in judgment, which were made in good faith, or for acts or omission of each other or of any officer, agent, representative, or servant and were not obliged to give bond to secure the due performance of the trustees. In case of loss or destruction of certificates or units, the trustees could issue new certificates to replace them. The annual meeting of the unit-holders was to be held in Newkirk, Oklahoma, with special meetings held upon ten days’ notice. At all meetings unitholders were entitled to one vote for each unit held by them and vote could be by proxy. Only business set out in the notice could be transacted at a special meeting and a majority of all the units had to be present, in person or by proxy, at any meeting in order to transact business. The ownership of units did not entitle the holder to any title in the trust property or right to call for partition or division of the same, or for an accounting or any control of the trust property. The trustees could not bind the unitholders personally. Creditors of the trust could look only to the fund and property of the trust for payment so that neither the trustees nor tire unitholders, present or future, would be personally liable for debt, etc. The trust was to be continued for twenty-one years when the trustees could wind up its affairs, liquidate the assets, and distribute them among the unitholders, or if at least two thirds of tire units should vote to continue the trust, it could be continued in existence for a further like period, or such shorter period as may then be determined.
The state’s reply recited a change in personnel of the trustees. It admitted the correctness of the contents of the Oklahoma statute but expressly denied that United is now in legal existence. The state admitted United’s organization, that the declaration of trust constituted United as an express trust and admitted the recording thereof, but expressly denied the extension of the term of United for an additional twenty-one years and further expressly denied that it was then in effect or in lawful existence and finally set out a general denial.
The Oklahoma statutes and the trust agreement, as heretofore narrated in brief, were stipulated by both parties to be correctly stated. At the time of trial it Was stipulated:
The trustees were M. H. Watts, Lillian Bowlby, and Mr. Houston; United had not qualified to receive a permit to do business as a foreign corporation in Kansas; no annual reports had been made to the secretary of state and no annual fees paid as a foreign corporation; no penalty had ever been paid to the state by United as a foreign corporation; United issued units represented by certificates to landowners for mineral interests in Kansas and a depository had b.een maintained in the Progressive State Bank (later the State Bank) of Winfield until 1929; United had collected any and all money due under the mineral conveyances affecting Kansas land; the general method of operation was the same in Kansas and six other states; so far as known, United had never obtained a permit from the speculative securities department of the state to issue its certificates; when this action was filed United had 14,234.51 acres of royalties in the several states; the amendment to the declaration of trust to extend its existence was not signed by all the beneficiaries but was made in accordance with the provisions in the declaration of trust since the Oklahoma law was silent in regard to extensions in 1943; the trustees as such received no salary but were paid expenses except M. H. Watts, the managing trustee, who was given a monthly allowance as salary for the work, labor and services rendered by him in looking after the company’s business. This allowance came out of the trust income. If the court finally determined that the trust owed the state any taxes, interest, and penalties, the trust would voluntarily pay them.
Article 1.2, section 6, of our state constitution provides:
“The term corporations, as used in this article, shall include all associations and joint stock companies having powers and privileges not possessed by individuals or partnerships; and all corporations may sue and be sued in their corporate name.”
Under the contention of United that it is an unincorporated association, we note that G. S. 1949, 17-2601 (K), a section of the general corporation code, reads:
“ ‘Unincorporated association’ means any group of two or more persons united to carry on a business for profit except when such group is formed into a corporation under the laws of any state, territory, nation or sovereignty. Without hereby restricting the meaning of the term it is declared to include partnerships, limited partnership associations, joint-stock companies, so-called common-law trusts or Massachusetts trusts and all other business trusts.”
The findings of the trial court were extensive and only those pertinent to the determination of this appeal will be discussed. The court found that United was not a corporation organized, created by or formed under the laws of any state or sovereignty; that when organized its prinicipal place of business was New-kirk, Oklahoma, and since 1933 has been in Tulsa, Oklahoma; that M. H. Watts was the managing trustee and Ruth Stewart was secretary. On August 11, 1922, a declaration of trust was executed by C. E. Pochel, Olen Burnham and H. L. Landon as subscribers and also as trustees, and the declaration was recorded in the office of the county clerk of Kay county, Oklahoma, on October 14, 1922, and was filed of record in Sumner county, Kansas, on August 25, 1924.
The court further found:
“The trustees proposed to unite the undivided one-half of the oil, gas and mineral rights of the fee owners of 50,000 acres of the several oil bearing states into a strictly pooling organization; the trustees had absolute control of all moneys deposited in banks designated to receive and prorate same, to withdraw the moneys from said banks and to appoint other banks to act in a like capacity as the best interests of the trust might appear; the fee owners of the land placed in the pool were to be issued 70% of 2,000,000 units to be issued by the trustees and the trustees were to be issued 30% of the said units for uniting the fee owners but all expenses of uniting and assembling said pool were to be paid by said trustees until the 50,000 acres were obtained or until the pool was declared closed; each and every unit was to share equally in the profits of the 50,000 acres; the title to the property acquired was to be held by the trustees as trustees and managed by them for the holders of the units; the instrument created a real trust and not a partnership; the trustees collectively were to be designated as The United Royalty Company, so far' as practicable, and conduct all business and execute all instruments under that name; the trustees were to hold the legal title to all trust property together with the exclusive management thereof; they assumed all liabilities as trustees but none personally; the trustees were to hold the subscribers, and all persons acting with them, harmless against any and all liability; the trustees could adopt, alter or repeal any and all by-laws, rules and regulations not inconsistent with the Declaration of Trust; the trustees were authorized to elect officers having authority similar to those of corporations; the trustees were not liable for errors of judgment, acts or omissions to act; the units were to be of no par value; the trustees were to issue each unit holder a negotiable certificate as evidence of the ownership of such units but total units issued were not to exceed 2,000,-000; the trustees were to hold office for the duration of the trust but, in case of death or resignation, the vacancy was to be filled by the remaining trastees; the death of a unit holder or trustee did not terminate the trust; the ownership of units did not entitle the owner to any title in trust property or to a division or partition thereof; the trustees could not bind the unit holders personally; creditors of all kinds were required to look to the trust property and no trustee or unit holder was personally liable to any creditor; the trust was to continue for 21 years from the date thereof at which time the Trustees were to wind up its affairs, liquidate the assets and distribute same prorata among the unit holders but, if prior to said 21 years period, the holders of at least % of the units then outstanding should vote, at a meeting called, to terminate or continue the trust, then said trust was to be terminated or should continue in existence for a further like or shorter period as said vote determined.
“XI
“The intent and purpose of the said subscribers and trustees was to establish a co-operative pooling of minerals in place among land owners so that one could profit from any oil and gas under the land of the others whether in Kansas or elsewhere; the landowners were the holders of the units issued them in exchange for the mineral interest placed by them in said pool and each land owner received his proportionate part of the proceeds from production on the land of all other land owner members of the pool or trust.
“XII
“The certificates originally issued the land owners were negotiable and a great proportion of the original units are now in the hands of third parties through sale or death by and of the original land owners, their heirs and assigns.
“XIII
“United Royalty acquired a total of 51,386.46 acres of and undivided & interest of the oil and gas mineral rights of the fee owners in lands in the several off bearing states and in excess of said undivided % interest in the proposed 50,000 acres."
“XV
“Oil in paying quantities was first discovered and produced from acreage in the block or pool belonging to the defendant in 1924; such production has been continuous at all times since and is so at tins time.
“XVII
“At the time of the trial, United Royalty had 44 producing properties in Kansas and its income was running on an average of about $4,000.00 per month.
“XVIII
“United Royalty has' executed 3 oil and gas leases upon land in Kansas in its mineral interest pool and, in each of these lands, United Royalty owned a full participating mineral interest.
“XIX
“United Royalty owns no real estate in Kansas except the mineral interests in its pool, have never engaged in buying and selling real estate and has never engaged in any activity in Kansas except the exchange of its units for mineral interests during the time its mineral interest pool was being assembled; United Royalty owns 8,000 acres of mineral interest in Kansas which are a part of the mineral interest pool. The securing of mineral interests from land owners to be placed in the mineral interest pool' of United Royalty terminated in 1929 and no such conveyances have been taken in Kansas since that year.”
Finding 20 set out the Oklahoma laws, which have already been summarized, and finding 21 first set out the 1947 amendments to the Oklahoma statutes and then concluded as follows:
“Prior to the year, 1947, the Oklahoma statutes did not provide for an extension of a trust organized thereunder nor did they prohibit any extension thereof as might be expressed in the trust agreement.”
Findings 22, 23, and 24 related to the calling of a special meeting of the unitholders held on July 27, 1943, the notice given, and the vote on the extension of the trust for twenty-one years which showed that more than the required two thirds of the units issued and outstanding voted in favor of extending the term of the trust.
Finding 25 sets out the fact that each unitholder was mailed notice of the action taken on July 27, 1943, extending the term of the trust.
Finding 26 states that as of July 1, 1957, the sum of $102,000 had been disbursed to the several unitholders after the extension of the trust on August 11, 1943.
It was finally found:
“XXVII
“United Royalty has received 503 original conveyances from the land owners who placed mineral interest in and under land owned by them into the said mineral interest pool.
“XXVIII
“Many of the units issued to the original land owners have been sold and transferred by the holders thereof and are now owned by the respective purchasers or their assigns.
“XXIX
“All other facts are found generally in favor of the defendant, United Royalty Company.”
The trial court’s conclusions of law were as follows:
“1. The defendant, United Royalty Company, is not and has never been a corporation organized or formed under the laws of this or any other state, territory, nation or sovereignty.
“2. The defendant is authorized to do any lawful act in relation to its trust property which any individual owning the same might do; does not, as an association or joint stock company, have any powers and privileges not possessed by individuals or partnerships and hence is not a corporation within the meaning of Article 12, Section 6 of the Constitution of the State of Kansas.
“3. The defendant, United Royalty Company, is and has been since the enactment of Sec. 17-2601 of the General Statutes of Kansas, 1949, an unincorporated association as defined by said section and sub-division ‘K’ thereof.
“4. The defendant, United Royalty Company, is not required to make application to the State Charter Board for authority to engage in business in this state as a foreign corporation or make the annual reports and pay the fees owing by said foreign corporations doing business in this state and is not sub ject to the penalties imposed upon said foreign corporations for failure to do so.
“5. The defendant, United Royalty Company, has not violated and is not required to obtain a permit for the sale of speculative securities in Kansas and is not subject to and has not violated the provisions of G. S. 1949, Chapter 17, Article 12 cited as the Kansas Securities Act and commonly known as the Kansas Blue Sky Law.
“6. The Declaration of Trust and the life of the Trust was legally extended for a period of 21 years from 'August 11, 1943, and is now in full force and effect.
“7. The Plaintiff is not entitled to the relief sought and should have and recover nothing. The defendant should be awarded judgment for its costs.
“8. Proper journal entry should be prepared by counsel for the defendant and submitted to counsel for plaintiff for approval and then to this Court for his signature, and thereupon entered upon the journal of the court.”
This case was meticulously tried by very able counsel on both sides in the court below and the record presented for appellate review contains voluminous documentary evidence and in addition there is testimony of numerous witnesses, some of which is contradictory and some undisputed. Once a trial court has made findings of fact which are supported by any substantial evidence, this court on review will not disturb such findings even though the evidence may be conflicting. (In re Estate of Cox, 184 Kan. 450, 453, 337 P. 2d 632; Renner v. Monsanto Chemical Co., 187 Kan. 158, 168, 354 P. 2d 326.) However, we have stipulated and undisputed facts, as well as documentary evidence, which are as much before this court on appeal as they were before the trial court, and their sufficiency becomes a matter of law for our determination rather than purely a question of fact for the sole determination of the trial court. (Dassler’s Kansas Civil Code, supp. ed., ch. 92, § 24, p. 856.)
The most important, prime, and basic evidentiary element in this case is the declaration of trust relied upon by United. It was admitted upon the filing of the reply by the state that this trust agreement was the core and life-giving instrument that brought United into existence.
In May, 1923, approximately eight months after the trust agreement was executed, United filed an application with the Kansas blue sky department, which was then under the jurisdiction of the state bank commissioner, to which was attached copy of the declaration of trust. On May 9, 1923, that department submitted United’s application to the attorney general for his written opinion. On June 28, 1923, United wrote the state bank commissioner requesting knowledge as to what had been done in the consideration o£ its application and what its future status in the state was to be. On June 29, 1923, the blue sky department informed United by letter that the attorney general had handed down his opinion that United’s proposition clearly came within the provisions of the blue sky law of Kansas and that United should send $250.00 to defray the expense of a necessary investigation of the company and its holdings by a personal representative of the blue sky department.
On April 27, 1923, United appointed the Progressive State Bank of Winfield, Kansas, as trustee to distribute funds to unitholders according to the declaration of trust on file in the Cowley county register of deed’s office. On November 26, 1923, a receipt for $25.00 was issued by the bank commissioner’s office for a filing fee under chapter 164, session laws of 1915 (now G. S. 1949, 17-1223, et seq.)
On November 27, 1923, United was informed by the state bank commissioner’s office as follows:
“William Howe leaves today for inspection of your holdings.”
On November 30, 1923, Mr. Howe made a report to the bank commissioner’s office to the effect that after a farmer leased his land for oil and gas to any oil company he preferred, he put his royalty into the pooling company (United) which took 30% of such royalties it received for compensation. After deducting the 30%, the balance was divided equally among the intended 312 members of the pool. There was no buying or selling of leases or stock and Howe could see no way of any harm the company could do anyone as a result of fraud.
On December 21, 1923, C. E. Pochel sent two letters wherein he undertook to explain the plan and purpose of United, which we do not believe need be repeated here because they are not particularly helpful. Apparently nothing more happened until May 22, 1928, when the state bank commissioner’s office wrote United and informed it that information had reached that office that United was offering stock in its company in Kansas, and it was in violation of our penal statutes to sell such stock without first obtaining a permit. In reply thereto on May 25, 1928, United by and through O. P. Burnham, as secretary, again wrote a long letter to the bank commissioner explaining the intention and purposes of United which we shall not set out in detail. On May 26, 1928, the state bank commissioner’s office informed United of the receipt of its letter of explanation and requested copies of the conveyance of the oil royalties, printed contracts, and other printed material, and mentioned the investigation of similar propositions as well as the pendency in the Supreme Court of the State of New Mexico of a suit brought under their blue sky law which was almost identical with ours.
Before discussing the principal issue, mention should perhaps be made of the most recent appearance of United as a litigant in this court. In 1955 United, as an Oklahoma express trust, had its title quieted to an interest in the mineral rights in and under certain lands in Ellis county (Froelich v. United Royalty Co., 178 Kan. 503, 509, 510, 290 P. 2d 93) and in an opinion on rehearing (Froelich v. United Royalty Co., 179 Kan. 652, 297 P. 2d 1106) the interest was more particularly determined to be an undivided one half interest in and to the minerals in place in and under the land involved. (p. 655.) Thus it was established under the terms of the trust that United had obtained and would retain title to real estate in Kansas whereby it would sign leases and division orders, and receive income from oil and gas produced from such real estate.
Did the trust agreement indicate United had the powers and privileges of a corporation? The agreement exempted the trustees and the unitholders from any and all personal liability. The trustees were the masters of every element of the trust to the exclusion of the unitholders who had only voting rights based on the representation afforded by the number of units owned. The agreement contained no element of joint tenancy, or tenancy in common, and no provision for dissolution of the trust except the expiration of the term for which it was organized or any extension granted under the provisions therefor. The trustees elected one of their number who signed as president and another member who signed as secretary. A common seal was adopted. All of the above are indicative of powers of a corporation in Kansas since individuals and partnerships do not possess such powers in conducting their business affairs.
While the trial court in its findings of fact did not in specific language find the trust had the powers and privileges enumerated above, they were substantially so found. Notwithstanding these findings, the trial court concluded, as a matter of law, that United did not possess such corporate powers and privileges. The inconsistency between the findings and conclusions, and more specifically between finding 10 and conclusion 2, serves to emphasize that the principal issue in this case yet to be decided is whether United is a corporation as such is prescribed by the constitution and laws of the state of Kansas and whether, as such, it is amenable to the requirements and exactions thereunder.
Some of the appropriate opinions of. this jurisdiction are: Lumber Co. v. State Charter Board, 107 Kan. 153, 190 Pac. 601, a landmark case, wherein the trust agreement was almost the same as the agreement in our present case. It was held that an imincorporated company was a corporation within the meaning of article 12, section 6, of our state constitution, and this court enumerated in considerable detail how the plantiff therein was proposing to exercise powers and privileges not possessed by individuals or partnerships:
“There is first the limited liability under which both shareholders and trustees are exempted from all personal liability. The corpus or joint property is to be continued during the existence of the trust freed from the rules of joint tenancy or tenancy in common, and the organization is not dissolved by the death of a shareholder or trustee. The interest of the shareholder is represented and measured by negotiable shares of stock which give voting power much the same as does corporate stock. A common seal is to be adopted and used substantially as is done by corporations, and the trustees ‘may elect officers who shall have the authority and duties usually incident-to like officers in corporations.’” (p. 160.)
In Harris v. Oil Co., 110 Kan. 532, 204 Pac. 754, a Massachusetts trust, or voluntary trust, was held to be a corporation and the court, in adhering to the ruling in the foregoing Lumber Company case, stated:
“A regular session of the legislature has since been held without making any change in the law as so interpreted. This implies legislative acceptance of the policy of regulating organizations such as the defendant and gives room for the presumption that if the existing law had been otherwise interpreted such regulation would have been provided by new legislation — a special reason why the decision should not be overturned except upon the strongest grounds.” (p. 533.)
In the Harris case it was further suggested that such a trust enjoyed practically all the advantages of ordinary corporations and no reason is apparent why they should not be subjected to the same obligations and regulations, (p. 535.) This very appropriate reasoning appeared later in the opinion:
“If the defendant is the kind of an organization to which the Kansas constitution and statutes apply the name corporation and upon which they impose certain regulations, it is wholly beside the purpose that the Minnesota constitution and statutes do not apply that term to it and do not impose such regulations upon it . . . All that is presently necessary is to decide, as we do, that such an organization may be a nonresident of this state and as to it a foreign corporation — that is to say, not a corporation within the meaning of the law of some other jurisdiction, but an association known to our statutes as a corporation which is not a resident of this state.” (p. 537.)
By substituting the name United for defendant and Oklahoma for Minnesota, the above statements are found to be applicable to our present situation.
Weber Engine Co. v. Alter, 120 Kan. 557, 245 Pac. 143, 46 A. L. R. 158, anno. 169, raised the question as to whether a Massachusetts trust, or a business trust, could transact business in the state of Kansas without a corporate license. It approved and adopted the rule of the Lumber Company case and cited many others from foreign jurisdictions. The opinion, in explaining the reason for the rule approached the proposition in a little different way, as can be seen from the following excerpt:
“As compensation for their privileges, corporations have substantial burdens to bear. For instance, they are subject to supervision by the state; they pay fees for incorporation; they make detailed reports to the state, and pay special taxes. In return, the state has given to their shareholders the privilege to engage in business without personal liability, provided they comply with the corporate law in the organization and conduct of the business. The law is strict concerning them. It requires an accurate statement of the capital, the recording of the articles, and safeguarding of the public in its dealings with them in various ways. It requires proof that the capital of the corporation has been paid in before it is permitted to do business. It provides means by which those who purchase stock therein may know that the proceeds of the purchase go into the capital of the company. It discloses a policy designed to protect the public against loss in the transaction of business with them. These purposes of the law may be circumvented if associations of the kind under consideration are permitted to secure exemption from personal liability for their membership without compliance with the provisions of law. Such a situation was never contemplated. It is contrary to the intent of our constitution and laws.” (p. 562.)
Close on the heels of the Weber case was Linn v. Houston, 123 Kan. 409, 255 Pac. 1105, concerning a common law trust. The rule in the Weber case was approved and applied.
The court in Ward v. Home Royalty Ass’n, 142 Kan. 546, 50 P. 2d 992, stated that when an Oklahoma common law trust which received a Kansas landowner’s deed through the mail and in return therefor mailed to idle landowner a certificate of participation in net income of the trust, such certificate was a speculative security within the meaning of the blue sky law of this state, the trust had no permit to sell or dispose of such speculative security in Kansas, and this court therein held:
“. . . use of the certificate, without a permit, for the purpose for which it was used was illegal, notwithstanding the fact that power to regulate interstate commerce is conferred by the constitution of the United States on congress.” (Syl.) (Our emphasis.)
See, also, the well-reasoned opinion in Wigington v. Mid-Continent Royalty Co., 130 Kan. 785, 288 Pac. 749, which was mentioned in Fitch v. United Royalty Co., 143 Kan. 486, 493, 55 P. 2d 409, the first case in which United appeared before this court. The syllabus in the Fitch case read:
“Plaintiff conveyed an oil-and-gas royalty interest in certain land to a common-law trust domiciled in Oklahoma, which held no permit to deal in speculative securities in Kansas. As consideration for his conveyance he received unit interests in the trust estate and his proportionate share of the profits distributed by the trust from time to time for more than four years. Held: (1) the common-law trust had legal capacity to acquire a royalty interest in plaintiff’s land; (2) plaintiff’s long acquiescence in the transaction, his acceptance and retention of the benefits of the transaction, and the subsequently attached rights of third parties, interveners, whose respective interests in the trust estate would be prejudicially affected, rendered it altogether inequitable to set aside the deed and quiet plaintiff’s title to the royalty interest he had conveyed to the common-law trust.”
While our present question was fully discussed and determined in the Fitch case, it can be seen from the above-quoted syllabus that the court did not decide the Fitch case thereon but on the element of laches, but in following the Lumber Company case and the Linn case, both supra, it was actually held that United was in truth and in fact a corporation notwithstanding its failure to perfect its organization as such under G. S. 1949, 17-1223, et seq. (pp. 490, 492, 494.)
United contends it has not carried on any business in Kansas since 1929. However, in view of the situation presented in the Fitch and Froelich cases, we cannot accept this as true, and in addition, from the inception of the trust the principal purpose thereof was the income to be received from the production of minerals from the mineral interests held by United. The obtaining of the mineral deeds in exchange for certificates of units was just a preliminary step in the plan of operation. To contend seriously that there is no further benefit to be derived from the trust agreement would appear to be taking inconsistent positions in the controversy.
In view of the fact that United is a corporation under article 12, section 6, of our state constitution, it is not necessary to repeat all the specifications of error presented by the state. The only question left is should a writ be issued ousting United from doing business in the state, or should this court, under the circumstances, give United an opportunity to comply with our corporation laws, along with the making of such orders as are necessary to assure such compliance. The state has presented a very strong case in support of its request for the ouster of United from doing business in Kansas, for the appointment of a receiver, and a winding up of the business. However, we have a duty to be mindful that quo warranto is an extraordinary remedy and should only be used in extreme cases and where it is the only method available to protect the public.
On the other hand, if more benefit to everyone concerned may be realized by something less than quo warranto, courts in the exercise of their judicial discretion should resort thereto. We conclude that in the best interests of justice and equity it will be proper to require United to comply with the state corporation code, and more particularly with G. S. 1949, 17-702 so that fees, taxes, and any penalties may be determined and paid.
United is permanently enjoined until such time as it has complied with the requirements of the blue sky law and of the provisions of the state corporation code, more particularly, G. S. 1949, 17-702, and a final settlement of any and all monies owing from United to the state of Kansas is made and amounts due paid; it is enjoined further from in any way disposing of any or all of its property, real, personal, or mixed, that is located within the state of Kansas. By reason of the above, the trial courts judgment is reversed and the cause remanded with directions to proceed further according to the views expressed herein.
Reversed and remanded with directions.
Fatzer, J., not participating. | [
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The opinion of the court was delivered by
Holmes, J.:
This is an appeal by Mary Cada from a judgment in favor of The Garden National Bank of Garden City, Kansas, (Bank) foreclosing a real estate mortgage and granting the Bank a deficiency judgment following sale of the real property. The Court of Appeals reversed the judgment of the district court (Garden Nat’l Bank v. Cada, 11 Kan. App. 2d 562, 729 P.2d 1252 [1986]). We granted review on a petition by the Bank.
The facts are fully set forth in the Court of Appeals opinion and only such facts as are necessary to our decision herein will be stated. Following default on an automobile loan Mrs. Cada obtained from the Bank, the parties entered into a deferral agreement extending the time in which to resume payments upon the loan. As consideration for the extension she executed a real estate mortgage on property in Deerfield, Kansas, to the Bank as additional security for the loan. Thereafter, she again defaulted in payments due on the loan and after the Bank gained possession of the automobile, it was sold at the Colorado Auto Auction in Denver, Colorado. As a substantial balance remained on the note following the sale, the Bank instituted foreclosure proceedings on the real property mortgage and obtained judgment, and the real property was sold at a sheriff s sale conducted October 16,1985. That sale did not satisfy the balance due on the note and a deficiency judgment was granted November 27, 1985.
Mrs. Cada’s sole issues on appeal are whether the Bank sold the automobile in a commercially reasonable manner and whether there was a valid consideration for the real estate mortgage.
What is a commercially reasonable sale under either the Uniform Commercial Code (UCC) or the Uniform Consumer Credit Code (UCCC) is a question of fact to be determined by the trier of the facts. Medling v. Wecoe Credit Union, 234 Kan. 852, Syl. ¶ 6, 678 P.2d 1115 (1984). The standard required is that the secured party act in good faith and in a commercially reasonable manner. The issue of commercial reasonableness is to be determined by the aggregate of the circumstances, rather than the specific details of the sale taken in isolation. Eight specific factors, together with any other relevant circumstances, are to be considered in deciding whether a sale was commercially reasonable. They are: (1) The duty to clean up, fix up, and paint the collateral; (2) public or private disposition; (3) wholesale or retail disposition; (4) disposition by unit or in parcels; (5) the duty to publicize the sale; (6) the length of time collateral was held prior to sale; (7) duty to give notice of the sale; and (8) actual price received at the sale. Westgate State Bank v. Clark, 231 Kan. 81, 92-95, 642 P.2d 961 (1982).
The Court of Appeals found that the Bank had not sold the automobile in a commercially reasonable manner because of a lack of notice to the debtor specifying the time and place of sale. This finding was evidently predicated upon the court’s acceptance of the district court’s statement that the car was sold at a public auction.
The duty to give notice of the sale of repossessed collateral is defined by K.S.A. 84-9-504(3), which provides in relevant part as follows:
“Unless collateral is perishable or threatens to decline speedily in value or is of a type sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor, if he has not signed after default a statement renouncing or modifying his right to notification of sale. In the case of consumer goods no other notification need be sent.” (Emphasis added.)
The statute clearly distinguishes between the type of notice which must be given when the secured creditor selects a private as opposed to a public sale. Only if the sale is public need the debtor be given notice of where and when the sale will take place. As to a private sale, the creditor must inform the debtor of the date after which the sale will be made.
On February 8, 1982, the Bank wrote to Mrs. Cada stating in part:
“We are not agreeable to your continuing with this contract in view of all the circumstances surrounding this account. However, we are giving you official notice that you will have the opportunity to redeem this 1981 Pontiac by paying to us the outstanding balance, due no later than February 20,1982. If you do not pay this amount by February 20,1982, we will proceed to sell the collateral in a reasonable, commercial or private sale and apply the proceeds to your account. If the proceeds of the insurance check and the sale of the collateral does not pay in full the balance owing on the contract, we will then proceed to foreclose on the property in Deerfield, which you had pledged as security for this loan.
“This will be your final notification, therefore, we will expect to hear from you by February 20,1982, or we will proceed as stated above. If you have any further questions regarding this account, please contact me.”
Mrs. Cada did not respond to this notice. If the sale of the automobile through the Colorado Auto Auction was a private as opposed to a public sale, it would appear that the notice to Mrs. Cada was in compliance with the statute and legally sufficient.
The statutes do not define either public or private sale. However, several courts have done so. “The essence of a public sale is that the public is not only invited to attend and bid but also is informed when and where the sale is to be held.” Lloyd’s Plan, Inc. v. Brown, 268 N.W.2d 192, 196, 24 U.C.C. Rep. Serv. (Callaghan) 1053 (Iowa 1978). This analysis follows the definition in the Restatement of Security § 48, Comment C (1941), where a public sale is defined as “one to which the public is invited by advertisement to appear and bid at an auction for the goods to be sold.” Where the persons entitled to purchase at the sale are of a specific category, as opposed to the public, the sale is private. The sale of collateral by a credit union to members of the credit union has been held to be a private sale. Morrell Employees Credit Union v. Uselton, 28 U.C.C. Rep. Serv. (Callaghan) 269 (Tenn. App. 1979).
In the instant case, Mrs. Cada’s automobile was sold at a wholesale car dealer’s auction in Denver, Colorado. Only a limited class of persons, car dealers, were entitled to participate at the sale. As Mrs. Cada or members of the public could not participate in the auction, notice of the time and place of the sale would have served little purpose. The Supreme Court of Iowa in John Deery Motors, Inc. v. Steinbronn, 383 N.W.2d 553, 42 U.C.C.Rep. Serv. (Callaghan) 1855 (Iowa 1986), held as a matter of law that a secured party’s sale of collateral at an auction open only to automobile dealers constitutes a private sale within the meaning of the UCC. In Steinbronn, the Iowa Supreme Court stated:
“We do not agree with the defendants’ contention that the sale was ‘public’ within the meaning of the statute. Unless words and phrases in statutes have been defined by special statutory provision or have ‘acquired a peculiar and appropriate meaning in law,’ we give them their usual and ordinary meaning. [Citations omitted.] Because the concepts of ‘public’ sale and ‘private’ sale are presented without explicit legislative definition, we look to the dictionary for their meaning. A public sale is one that is ‘accessible to or shared by all members of the community.’ Webster’s Third New International Dictionary 1836 (1976). The ordinary meaning of the word ‘private’, on the other hand, is something ‘intended for or restricted to the use of a particular person or group or class,’ the converse of something ‘freely available to the public.’ . . . The automobile auction in the present case was not open to the general public. Attendance was restricted to automobile dealers. Sale at that auction was not public in character.
“Case authority, commentators, and the Restatement of Security also support our determination that this sale was not a public sale. See Roanoke Industrial Loan & Thrift v. Bishop, 482 F.2d 381, 384-85 (4th Cir. 1973); 9 R. Anderson, Uniform Commercial Code § 9-504:32 (3d ed. 1985); 1A P. Coogan, W. Hogan, D. Vagts & J. McDonnell, Secured Transactions under the Uniform Commercial Code § 8.04[2][a][ii] (1985); 2 G. Gilmore, Security Interests in Personal Property § 44.6, at 1242 (1965); Hogan, The Secured Party and Default Proceedings Under the UCC, 47 Minn. L. Rev. 205, 226 (1962); Restatement of Security § 48, comment c, at 139-40 (1941).” 383 N.W.2d at 555.
Professor Barkley Clark, in his treatise on secured transactions, refers to the Iowa Supreme Court’s rationale in John Deery Motors, Inc. v. Steinbronn, stating:
“In John Deery Motors, Inc. v. Steinbronn, the notice indicated a private sale. The repossessed automobile was sold through a dealer auction. When the secured creditor sought a deficiency, the debtor argued that the notice was defective because the dealer auction was in reality a ‘public’ sale. The Iowa Supreme Court, in the absence of a definition of ‘public sale’ in the UCC itself, turned to Webster’s, where the term ‘public’ is defined as ‘accessible to or shared by all members of the community.’ Since the dealer auction was open only to automobile dealers, it was closed to some aspect of the market; therefore, the court held that it was a ‘private’ sale, notwithstanding that the method of disposition at the sale was an auction. Because the sale was ‘private,’ and thus consistent with the language in the notice sent to the debtor, the deficiency claim was allowed. The holding is significant, because a dealer auction is a very typical method of disposing of motor vehicle collateral. The analysis of the Iowa court seems correct.” (Emphasis added.) Clark, Law of Secured Transactions Under the Uniform Commercial Code ¶ 4.8[3] (Cum. Supp. No, 1 1987).
We agree with the Iowa court and the other authorities cited that sale at an auto auction, which is limited to automobile dealers and from which the public is precluded from participation, is a private sale within the meaning of the controlling statutes. Although the district court erroneously stated the car was sold at a public auction, the decision reached was correct. We hold that the notice given in the present case was sufficient and met the requirements of K.S.A. 84-9-504(3). As there are no other serious contentions attacking the commercial reasonableness of the sale, the Court of Appeals’ holding to the contrary must be reversed.
The other issue raised by the appellant appears to be that there was a lack of consideration for the execution of the real estate mortgage. On this issue the Court of Appeals stated:
“Lack of consideration must be pled as an affirmative defense. K.S.A. 60-208(c); State ex rel. Ludwick v. Bryant, 237 Kan. 47, 50, 697 P.2d 858 (1985). Because Cada neither .pled nor attempted to plead lack of consideration in the court below, she waived the defense and may not raise it on appeal. See Timi v. Prescott State Bank, 220 Kan. 377, 386, 553 P.2d 315 (1976); Brooker v. Brooker, 214 Kan. 89, 96-97, 519 P.2d 612 (1974); Oehme v. Oehme, 10 Kan. App. 2d 73, 77, 691 P.2d 1325 (1984), rev. denied 236 Kan. 876 (1985); U.S.D. No. 490 v. Celotex Corp., 6 Kan. App. 2d 346, 353-54, 629 P.2d 196, rev. denied 230 Kan. 819 (1981).” 11 Kan. App. 2d at 565-66.
Even if the issue had been properly pled and raised on appeal, it would lack merit. See Farmers & Merchants State Bank v. Higgins, 149 Kan. 783, 89 P.2d 916 (1939); Safety Federal Savings & Loan Ass’n v. Thurston, 8 Kan. App. 2d 10, 648 P.2d 267 (1982).
Although the foregoing would ordinarily dispose of this appeal, the Kansas Bankers Association (KBA), in an excellent amicus brief, directs our attention to one other element of the Court of Appeals’ opinion, which the KBA asserts requires our consideration. In its opinion the court stated;
“In the ‘Promissory Note, Disclosure Statement & Security Agreement,’ the bank and Cada agreed that the loan would be governed by the UCCC. See K.S.A. 16a-1-109. Under the UCCC, as interpreted by the Kansas Supreme Court, the bank had no right to a deficiency judgment unless it proved that it disposed of the car in a commercially reasonable manner. ‘In consumer transactions, where there is creditor misbehavior such as failure to sell in a commercially reasonable manner, a claim for a deficiency judgment is absolutely barred.’ Westgate State Bank v. Clark, 231 Kan. at 90. See K.S.A. 16a-5-103(1); Kelley v. Commercial National Bank, 235 Kan. at 50-51; Medling v. Wecoe Credit Union, 234 Kan. at 861-62.” (Emphasis added.) 11 Kan. App. 2d at 566.
The KBA asserts that the quoted language from Westgate State Bank is overly broad dicta and conflicts with our decision in Central Finance Co., Inc. v. Stevens, 221 Kan. 1, 558 P.2d 122 (1976). We would agree with the extensive analysis provided by the KBA if the quoted language is considered out of context and in isolation from the balance of the opinion. However, the holdings in syllabus ¶¶ 1 and 2 of Westgate State Bank clearly state the rebuttable presumption provisions which apply to loans under Article 9 of the Uniform Commercial Code. The single sentence quoted from Westgate State Bank must be read and considered in light of the entire opinion and, when viewed in that manner, the decisions in Westgate State Bank and Central Finance Co., Inc. are not inconsistent. As we have already determined that the district court was correct in its judgment herein, we see no reason to belabor this issue further.
The judgment of the Court of Appeals is reversed and the judgment of the district court is affirmed. | [
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The opinion o£ the court was delivered by
Parker, C. J.:
This was an action to recover damages for personal injuries received by the plaintiff from a fall -in a coffee shop. A jury trial resulted in a general verdict and subsequent judgment for the defendant. The plaintiff appeals and brings the case to this court under specifications of error charging that the court committed error in giving an instruction on unavoidable accident over her objection and in overruling her motion for a new trial.
The plaintiff commenced the action on December 6, 1959, against the Tri-State Hotel Co., Inc. and its employee, Eleanor R. Mitchell, as defendants. Just prior to the trial she dismissed as against the employee, leaving the corporation as the only defendant. For that reason no further reference will be made' in this opinion to Mrs. Mitchell as a defendant.
No controversial issue respecting thé sufficiency of-the pleadings exists in this cáse. However, such pleadings define the issues as joined by the parties prior to the trial and their allegations, so far as material to those questions, should be noted. ’ When reviewed in the manner and for the purpose' indicated - it may'be'stated:
The petition alleges that plaintiff was just beginning to sit down in a chair in the coffee shop when defendant’s employee, Mrs. Mitchell, negligently pulled the chair away and out from under plaintiff, and thus caused her to fall down on the floor and sustain her injuries. It then charges that defendant was negligent in removing such chair, through its employee; that defendant had not properly instructed its employee; that the defendant employed and retained such employee after it was apparent she was physically incapacitated by reason of impaired vision and that her conduct would cause injury to customers; and that defendant employed incompetent managers and supervisors.
The defendant’s answer denies generally all allegations of the petition, charges that if plaintiff was injured her injury was proximately caused by her own negligence, and asserts that the accident was unavoidable.
The reply denies all allegations of the answer which in any way controverts the allegations of the petition.
The facts with respect to the pertinent conditions and circumstances existing just prior to the involved accident, as disclosed by the evidence presented at the trial, are not controverted and may be stated in highly summarized fashion.
On January 3, 1957, the defendant corporation was operating the Rroadview Hotel Coffee Shop, located in Wichita. The shop had a capacity of 175 people and during eách noon hour it served about 700 to 800 people. In handling these customers the coffee shop had one hostess, Mrs. Mitchell, and ten waitresses. The floor plan of the shop is not clear from the record. However, it appears there were coat racks along the west wall of such shop and tables and chairs, which were uniform in size, throughout the dining room. The tables were approximately three feet square.
At 12 P. M., on the date last above indicated, the plaintiff, accompanied by four other persons, entered the coffee shop for the purpose of having lunch. Mrs. Mitchell, the hostess, greeted them and, after ascertaining their desires as to a seating arrangement, led them to a place near the west wall of the coffee shop. Close to this west wall there were two tables, each of which accommodated two people. The hostess pushed these two tables together and moved them to the south in order to place another table next to them. Thereafter she walked to the east where more tables and chairs were located. There she picked up a chair, carried it back, and placed it near the west tables.
Events transpiring after the hostess placed the chair near the two west tables are in dispute as to various particulars. On that account they will be described in a summarized recital of pertinent portions of the testimony of witnesses who testified at the trial.
The plaintiff testified that she and one of her associates, Carl Smith, pushed a table, which was located approximately three feet to the east of the two west tables, along the floor until it was even with the other two tables. She also testified that she then turned around and saw another associate, Mrs. Oatsdean, hanging up her coat; that at the same time, she saw her chair and had touched it with her legs; that thereupon she turned around and put her hands flat on the table and said “Well, I guess this is real service.”; and that she looked at her chair again as she sat down but the chair was not there and she fell to the floor sustaining certain back injuries, which she described during the course of her testimony.
Plaintiff’s associate, Carl Smith, testified that he and the plaintiff pushed a table from the east side and moved it to the west side, a distance of approximately four or five feet; that there was a chair placed in a seating position where the table, which he and plaintiff were moving, was to be; that the plaintiff was backing in on the west side of the table and that he was walking forward on the east side of the table; that at that time the hostess was behind the chair in which the plaintiff was going to sit; and that as they got the table lined up with the other tables, the plaintiff sat down. He further stated “The chair was there at the time we put the tabje there. Joyce (plaintiff) sat down and the chair was moved.” He also testified that immediately before the accident occurred the hostess was looking toward the door leading into the coffee shop and that she was not looking at the plaintiff.
The hostess, Mrs. Mitchell, testified as a witness for both the plaintiff and defendant. She conceded that she had a glaucoma condition which affected her close vision but stated she did not think there were occasions when people could walk by her closely without her observing them. She admitted moving the chair behind the plaintiff just before the accident happened and in explanation of her action said: “She (plaintiff) was backing into position carrying the table, and the chair was in position. I realized she might fall and hurt herself so I pulled the chair back when she was two or three feet from the table. I didn’t see her look around and I was looking at her all the time.” Mrs. Mitchell also testified that when the plaintiff first looked back, which was at the time Mr. Smith and plaintiff commenced to move the table, plaintiff was seven or eight feet from the place where she sat down; that she stood watching plaintiff, who was moving fast, as she came back; and that when she reached the approximate place where the chair had been setting, plaintiff “set the table down and sat- down all in one movement.”
Edward H. McLeod, manager of the Broadview Hotel, testified that he had seen the entire accident and in a general way corroborated Mrs. Mitchell’s testimony.
At the close of all the evidence the trial court gave the jury full and complete instructions.
It suffices to say, without further reference thereto, appropriate instructions, to which no objections were made, were given with regard to the evidence relating to negligence on the part of each of the parties.
In addition to the instructions just mentioned the court, over the objection of counsel for plaintiff, gave the jury the following instruction. It reads:
“If you find from the evidence that the injuries to the plaintiff were the result of an unavoidable accident for which no one was to be blamed, then the plaintiff cannot recover. By ‘unavoidable accident’ is meant an accident which could not have been foreseen and prevented by the use of ordinary diligence and care, and which resulted without fault on the part of either party.”
Having outlined the issues as joined by the pleadings, detailed pertinent portions of the controverted and uncontroverted evidence adduced by the parties, and quoted the foregoing instruction given by the trial court, it can now be stated the sole issue involved on this appeal is whether, under the existing facts and circumstances, the trial court erred in giving the instruction on unavoidable accident over the plaintiffs objection.
Pointing out, that before the above quoted instruction was submitted to the jury by the trial court, it was objected to for the reason that on the basis of our decision in Kreh v. Trinkle, 185 Kan. 329, 343 P. 2d 213, the issue of unavoidable accident did not appear to be involved, the gist of all contentions advanced by appellant is that under the facts, conditions and circumstances of record such instruction was not applicable to the evidence and its submission confused and misled the jury, prejudiced her substantial rights', and therefore constituted error requiring the granting of her motion for new trial and reversal of the judgment.
In support of the foregoing claim of error appellant cites recent decisions of this court dealing with the propriety of giving an instruction on unavoidable accident. In two of these decisions, where judgments were rendered in the- court below for the defendants (Kreh v. Trinkle, 185 Kan. 329, 343 P. 2d 213; Schmid v. Eslick, 181 Kan. 997, 317 P. 2d 459), the submission of such an instruction is held to have resulted in prejudicial error requiring a reversal of the judgments and the granting of new trials. In two others, where judgments in the lower court were for the plaintiffs (Knox v. Barnard, 181 Kan. 943, 317 P. 2d 452; Carlburg v. Wesley Hospital & Nurse Training School, 182 Kan. 634, 323 P. 2d 638), it is held that requests for such an instruction were properly denied and afforded no sound basis for the reversal of the judgments.
In the recent decisions, to which we have just referred, this court has been entirely consistent in its holdings with respect to the import to be given the term “unavoidable accident,” as applied to negligence cases, as well as the conditions and circumstances under which an instruction on that doctrine was neither necessary nor proper. For its conclusions with respect to both questions see Knox v. Barnard, supra, where it is held:
“Generally speaking, as applied to automobile negligence cases, the term ‘unavoidable accident’ excludes and repels the idea of negligence, and refers to one which is not occasioned in any degree, either directly or remotely, by the want of such care or prudence as the law holds every person bound to exercise — that is, an occurrence which is not contributed to by the negligent act or omission of either party. In one sense, the term is synonymous with mere accident’ or ,‘pure accident,’ which imply that the accident was caused by some unforeseen and unavoidable event over which neither party had control.
“Generally speaking, when an accident is caused by negligence there is no room for application of the doctrine of ‘unavoidable, accident,’ even though the accident may have been ‘inevitable’ or ‘unavoidable’ at the time of its occurrence, and one is not entitled to the protection of the doctrine if his negligence has created, brought about, or failed to remedy a dangerous condition resulting in a situation where the accident is thus ‘inevitable’ or ‘unavoidable’ at the time of its occurrence. In other words, a person is liable for the combined consequences of an ‘inevitable’ or ‘unavoidable’ accident and his own negligence.” (Syl. ¶¶ 3 and 4.)
See, also, Schmid v. Eslick, supra, where the Knox case is specifically followed and page 1007 of its opinion where ¶¶ 3 and 4 of the syllabus of that case are quoted verbatim with approval.
See, also, Carlburg v. Wesley Hospital & Nurse Training School, supra, (syl. ¶ 5 and page 638 of its opinion), where the Knox and Schmid cases are both cited with approval and the principles therein announced expressly repeated in summarized fashion. And see Kreh v. Trinkle, supra, (syl. ¶ 1 and page 336 of the opinion), where the principles announced in all three of the decisions, to which we have last referred, are summarized in substance and adhered to.
The reasons on which this court has based the conclusions announced in the foregoing decisions, and the test to be applied in determining whether the submission of an “unavoidable accident” instruction has been prejudicial so as to require reversal of a judgment in an ordinary negligence action, are well stated in Kreh v. Trinkle, supra, and helpful to a decision of the appellate issues involved in the case at bar. Therefore, we shall quote at some length from the opinion in that case. Limited to the subjects mentioned, it reads:
“It may be said, after a careful review of the foregoing decisions, that an ‘unavoidable accident,’ or an event of the same nature however designated, is generally recognized as an occurrence not proximately caused by the negligence of any person (This is the substance of the definition given in Knox v. Barnard, supra, Syllabus |3); and that an attempt has fairly been made by the court to pursue logic as a test under this definition to determine when an ‘accident’ instruction of any sort is appropriate.
“In an ordinary negligence action the plaintiff must prove that the injury complained of was proximately caused by the defendant’s negligence, and the defendant under a general denial may show any circumstances which tend to militate against his negligence or, if negligent, its causal effect. The mere fact that the defendant pleads in his answer the defense of ‘unavoidable accident’ does not entitle him to an instruction on the doctrine of unavoidable accident.
“If the so-called defense of unavoidable accident is nothing more than a denial by the defendant of negligence, or a contention that his negligence, if any, was not the proximate cause of the injury, the pleading on this point is immaterial, since an instruction to the jury under these circumstances would inform the jury that the question of unavoidability or inevitability of an accident arises only where the plaintiff fails to sustain his burden of proving that the defendant’s negligence caused the accident. The instruction under these circumstances would serve no useful purpose, since the ordinary instructions on negligence and proximate cause sufficiently show that the plaintiff must sustain his burden of proof on the issues of negligence in order to recover.
“Thus, the allegation in the defendant’s answer stating the collision was the result of an unavoidable accident which prudent care on his part was unable to prevent, would not, standing alone, entitle him to an instruction. The instruction given must be germane to the issues raised by the pleadings and must be limited to those issues supported by some evidence. (Schmid v. Eslick, supra, including authorities cited therein; Knox v. Barnard, supra; and In re Estate of Erwin [170 Kan. 728, 735, 228 P. 2d 739], supra. )
“Where the evidence before the jury is confined to the issues of negligence, an instruction which informs the jury that the law recognizes what is termed an ‘unavoidable or inevitable accident’ may give the jury the impression that unavoidability is an issue to be decided, and that if proved, it constitutes a separate ground of non-liability of the defendant. They may then be misled as to the proper manner of determining liability, that is, solely on the basis of negligence and proximate causation. The instruction under these circumstances is not only unnecessary, but it is confusing. This was illustrated by the special findings of the jury in Schmid v. Eslick, supra.
“It would therefore appear to be the better practice, where the evidence is confined to issues of negligence, for the trial court to eliminate any reference to unavoidable accident’ in summarizing the pleadings of the defendant for the jury in its instructions since the defendant’s pleadings on unavoidable accident’ have become immaterial.
“A determination whether, in a specific instruction, the probable effect of the instruction has been to mislead the jury and whether the error has been prejudicial so as to require reversal depends upon all the circumstances of the case, including the evidence and the other instructions given. No precise formula can be drawn. (Reference is made to a recent extended annotation on ‘Unavoidable Accident Instruction’ in 65 A. L. R. 2d 1, covering 138 pages.)
“In the case before us we are confronted with an intersection collision where the issues between the parties upon which there was evidence is confined to negligence. Upon the evidence presented by the record herein it was improper to give the unavoidable accident instruction and to submit a special question upon it.” (pp. 340, 341 and 342.)
Another decision, not cited by the parties, but nevertheless supporting many of the conclusions reached by this court in the foregoing decisions, is Meneley v. Montgomery, 145 Kan. 109, 64 P. 2d 550, which reads:
“Appellants further contend the trial court should have instructed on the question of pure and unavoidable accident, as requested. The theory of the request is based on appellants’ testimony the coupe was not in sight when they started around the parked truck. The request was properly denied. In 1 C. J., 393, it is said:
“Mere accident” or “pure accident” are terms often used when it is desired to repel the idea of negligence, and are equivalent to the words “not by defendants’ negligence.” ’
“Appellants’ own evidence required the case be submitted to the jury. Their testimony in substance was: The road was very icy; they had a load of about fourteen thousand pounds; they shifted gears just before they started to pass around the parked truck; they were traveling only about six miles per hour when trying to pass the parked truck; the cattle truck and trailer combined were about thirty-five to thirty-six feet long; the driver accelerated the motor and caused the wheels to spin; with the load he had and the iee on the hill, he was prevented from making any speed and he then set his brakes.
“This presented not a question of pure or unavoidable accident but a question of appellants’ negligence in attempting to negotiate the hill on the south side of the road, in view of all the dangerous circumstances.” (p. 113.)
After a careful review of the evidence the court has concluded .there is nothing in the record presented to indicate anything other than that the accident in question was caused by the negligence of one or the other, or both, of the parties involved in the action. Moreover, in the face of that situation, it is convinced the decisions to which it has referred throughout this opinion compel a conclusion the submission of the instruction on unavoidable accident was prejudicial error which required the granting of her motion for a new trial.
It follows the judgment must be reversed with directions to grant a new trial.
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The opinion of the court was delivered by
Luckert, J.:
This appeal raises two questions. First, do landowners who do not hold rights to the water appurtenant to their land have standing to enjoin a water district that is seeking a temporary easement to drill test wells on the landowners’ property? Second, when only a temporary easement is being sought, has the landowner presented a ripe case or controversy regarding the question of whether a water district can condemn water rights or, alternatively, property for the purpose of providing permanent access to a point of diversion for the use of water rights?
We conclude that the landowners have standing to object to a temporary easement on their property, although they do not have standing to object to the condemnation of water rights which they do not possess. Nevertheless, the question of whether a water district can condemn water rights or property for the purpose of providing permanent access to a point of diversion for die use of water rights is not ripe for decision in this case because: (a) The landowners in this action do not hold the water rights, (b) the current eminent domain proceeding does not seek a permanent easement for a point of diversion, (c) it is not known if the water district will ever seek to condemn the property for the purpose of obtaining legal access to a point of diversion, or (d) if in the future the water district seeks a permanent easement for a point of diversion, it is not known if the current landowners will still possess an interest in the land or if a purchase could be successfully negotiated. We, therefore, affirm the district court’s order of dismissal.
Facts and Procedural Background
Public Wholesale Water Supply District No. 25 (District 25) is a large water wholesaler comprised of three rural water districts— Osage County Rural Water District No. 5, Douglas County Rural Water District No. 2, and Douglas County Rural Water District No. 5. Wholesale water supply districts are authorized by the Public Wholesale Water Supply District Act, K.S.A. 19-3545 et seq. (Wholesale Water Supply Act).
The Wholesale Water Supply Act also defines the purposes and powers of a wholesale water district. As relevant to this appeal, these include the power to secure a source of water on a scale larger than is feasible for a single public water supply district, municipality, or publicly or privately owned water distribution company and the power to sell that water at wholesale to public water supply districts, municipalities, and publicly and privately owned water distribution companies. K.S.A. 19-3545(a), (b). To pursue these purposes, a public wholesale water supply district is authorized to purchase and construct wells, pumping stations, and pipelines. See K.S.A. 19-3552(6), (7). Also, it has the power “to acquire land and interests in land by gift, purchase, exchange or eminent domain, such power of eminent domain to be exercised within or without the boundaries of the district in accordance with provisions of K.S.A. 26-501 [Eminent Domain Procedure Act], and amendments thereto.” K.S.A. 19-3552(5).
In the exercise of these powers, District 25 filed three separate applications with the Kansas Department of Agriculture, Division of Water Resources (DWR), in which it sought permits to appropriate groundwater rights in the Kansas River Rasin between Lawrence and Eudora for its beneficial use. As part of this process, District 25 sought to obtain access to three different tracts of land for the purpose of drilling test wells to evaluate the quality and quantity of the water supply and to determine a final well location. One of the three proposed points of diversion is the farm property of Gregory Shipe and Charlee Shipe (the Shipes), which is located outside the boundaries of District 25.
After unsuccessfully attempting to negotiate temporary easements with the Shipes and the two other landowners, District 25 filed a petition for eminent domain. In the petition, District 25 sought temporary access to the three tracts of land for a period of 120 days in order “to drill, operate, inspect, pump, and test water from and plug, test holes and test water wells on that land.”
The district court found that District 25 had the power of eminent domain and that the taking was necessary to its lawful corporate purposes. Consequently, tire court allowed District 25 to “have temporary ‘Drilling Easements’ ” and “temporary ‘Access Easements,’ ” as described in the district court’s order, for a period of 120 days from the date of payment to the clerk of the district court. In addition, the court appointed three appraisers to ascertain the values of the easements and “to determine the damages to the interested parties resulting from the subject taking.”
On the same day as the district court entered these orders, the Shipes filed a motion for a temporary injunction in the eminent domain proceeding. They also filed this separate action seeking an injunction. See Schuck v. Rural Telephone Service Co., 286 Kan. 19, 25, 180 P.3d 571 (2008) (“The condemnee has no right to litigate outside issues in eminent domain proceedings. [Citation omitted]. The right to exercise the power of eminent domain and to determine other issues such as the necessity and the extent of the taking may only be litigated in a separate civil action, usually in an action for injunction.”) (citing Miller v. Bartle, 283 Kan. 108, 116-17, 150 P.3d 1287 [2007]).
While the injunction requests remained unresolved, the court-appointed appraisers filed their report, and District 25 submitted the funds to the clerk as required. The amount of damages to the Shipes’ property caused by the partial taking was appraised to be $1,310. The Shipes returned the appraisers’ award to the district court, however, refusing to acquiesce in the damages award.
Subsequently, the district court considered the Shipes’ request for a temporary injunction and a motion to dismiss that had been filed by District 25. In their legal arguments, the Shipes asserted that District 25 does not have the power to condemn their property. They reasoned that District 25’s underlying purpose for initiating the condemnation action was to eventually acquire the water rights related to their land. Yet, they argued K.S.A. 19-3552(5), which allows water supply districts to “acquire land and interests in land” by eminent domain, does not extend to water rights. To support their position, the Shipes focused on language in the Kansas Water Appropriation Act (KWAA), specifically K.S.A. 2008 Supp. 82a-701(g), which refers to a “water right” as a “real property right.” Noting that a water district’s power of eminent domain is limited to interests in land, the Shipes argued that a real property right is different from an interest in land. In addition, they argued that the water rights sought to be obtained by District 25 do not qualify as a “source of water.” An alternative argument was also presented as the Shipes noted that a water district may obtain water rights only by gift, purchase, exchange, or eminent domain, and District 25’s application for water rights that was filed with the DWR fell into none of these categories.
After conducting an evidentiary hearing on the Shipes’ request for a temporary injunction, the district court denied the injunction and granted District 25’s motion to dismiss. In a memorandum decision, the district court found that the Shipes had failed to establish any of the factors required to be shown before a court can grant temporary injunctive relief — i.e., they failed to establish (1) a substantial likelihood of success on the merits; (2) a reasonable probability of irreparable future injury; (3) the inadequacy of remedies at law; (4) a threatened injury that outweighs whatever damages the proposed injunction might cause; and (5) an injunction would not be adverse to the public interest. See Schuck, 286 Kan. at 24; Steffes v. City of Lawrence, 284 Kan. 380, 395-96, 160 P.3d 843 (2007).
Addressing the merits of the Shipes’ contentions, the district court indicated that the threshold issue was whether District 25 has the power of eminent domain over water rights. The court acknowledged that District 25 did not actually seek to condemn water rights on the Shipes’ property; rather, District 25 sought only to obtain temporary easements for drilling test wells and evaluating the quality and quantity of available water. But the court reasoned that District 25 “needs to drill test wells only if it ultimately has the right to condemn the Shipes’ right to use that water.” Examining the language of K.S.A. 19-3552 and relying on the analysis in Peck & Weatherby, Condemnation of Water & Water Rights in Kansas, 42 Kan. L. Rev. 827, 832 (1994), the district court found that District 25 has the power to condemn water rights.
Subsequently, the district court granted the Shipes’ motion for a temporary injunction pending the outcome of this appeal. According to the Shipes’ brief before this court, they “appeal the denial of the injunction, on the grounds that the [Wholesale Water Supply] Act does not grant the District the power to acquire water rights by eminent domain.” The Shipes contend that because District 25 lacks the power to obtain the groundwater rights to their property, District 25 should be enjoined from obtaining temporary drilling and access easements.
District 25 responds with a number of arguments, including the one on which we resolve this action, i.e., that the district court lacked jurisdiction to determine whether tire water district has the power to condemn a water right because the Shipes lack standing and the issues they present are not ripe.
Standard of Review
Whether jurisdiction exists is a question of law over which this court’s scope of review is unlimited. Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 774, 148 P.3d 538 (2006).
Kansas courts are constitutionally without authority to render advisory opinions, and a court’s jurisdiction to issue an injunction is dependent upon the existence of an actual case or controversy. State ex rel. Morrison v. Sebelius, 285 Kan. 875, 897, 179 P.3d 366 (2008); 312 Education Ass'n v. U.S.D. No. 312, 273 Kan. 875, 882, 47 P.3d 383 (2002); Sheila A. v. Finney, 253 Kan. 793, Syl. ¶ 1, 861 P.2d 120 (1993). As part of the Kansas case-or-controversy requirement in an injunction action, courts require: (a) parties must have standing; (b) issues must not be moot; (c) issues must be ripe, having taken fixed and final shape rather than remaining nebulous and contingent; and (d) issues may not present a political question. State ex rel. Morrison, 285 Kan. at 896-97, 906 (discussing requirements and differing degrees of rigor to be applied in actions under K.S.A. 60-801 and K.S.A. 60-1701); U.S.D. No. 503 v. McKinney, 236 Kan. 224, 236, 689 P.2d 860 (1984) (for an injunction to issue there must be a threatened injury).
These factors were argued only indirectly by the parties in proceedings before the district couxt and, as a result, were not discussed in the district court’s memorandum decision. Nevertheless, subject matter jurisdiction is a question that may be raised at any time, whether for the first time on appeal or even on an appellate court’s own motion. See Williams v. Lawton, 288 Kan. 768, 778, 207 P.3d 1027 (2009); Flores Rental v. Flores, 283 Kan. 476, 480-81, 153 P.3d 523 (2007).
Standing
District 25 focuses most of its jurisdictional arguments on standing. Specifically, District 25 argues that the Shipes lack standing to assert arguments pertaining to groundwater rights because the Shipes own neither the water nor the water rights sought to be obtained by District 25.
This court has stated that standixxg is “one of the xnost amorphous concepts in the entire domain of public law. [Citation omitted.]” Harrison v. Long, 241 Kan. 174, 176, 734 P.2d 1155, appeal dismissed 484 U.S. 804 (1987); see Board of Sumner County Comm’rs v. Bremby, 286 Kan. 745, 750, 189 P.3d 494 (2008). Nevertheless, it is clear that if a party does not have standing to challenge an action or to request a particular type of relief, then “there is no justiciable case or controversy” and the suit must be dismissed. Kansas Bar Ass’n v. Judges of the Third Judicial Dist., 270 Kan. 489, 490, 14 P.3d 1154 (2000). We have also indicated that when a person who does not have standing to file suit asks for relief, it is tantamount to a request for an advisoxy opinion. 270 Kan. at 491. Advisory opinions are an executive, not a judicial, power, and as a result Kansas courts do not have jurisdiction to issue advisory opinions. State ex rel. Morrison, 285 Kan. at 885, 889-91, 898.
Turning to the specifics of this case, District 25’s arguments that the Shipes lack standing is based on general principles regarding the ownership of water rights. In Kansas, the rights to water are governed by the KWAA, K.S.A. 82a-701 et seq. Subsequent to the KWAA’s enactment in 1945, Kansas has followed the prior appropriation doctrine in assigning groundwater rights. Those who were current users when KWAA was enacted were required to apply for vested rights, and new users were allowed to obtain rights through a water use permit. Hawley v. Kansas Dept. of Agriculture, 281 Kan. 603, 614, 132 P.3d 870 (2006); see Peck, Title and Related Considerations in Conveying Kansas Water Rights, 66 J.K.B.A. 38 (Nov. 1997).
Through subsequent amendments, the Kansas Legislature established that a water right, whether vested or appropriated, is “a real property right appurtenant to and severable from the land on or in connection with which the water is used and such water right passes as an appurtenance with a conveyance of the land by deed, lease, mortgage, will, or other voluntary disposal, or by inheritance.” K.S.A. 2008 Supp. 82a-701(g). Further, in Kansas, a water right does not constitute ownership of the water itself; it is only a usufruct, a right to use water. K.S.A. 82a-707(a); Peck, 66 J.K.B.A. at 39. In addition, the KWAA dedicates water resources to the use of the public, prohibits water rights in excess of the reasonable needs of the appropriators, and subjects water rights to the principle of beneficial use. K.S.A. 2008 Supp. 82a-701(f); K.S.A. 82a-702; K.S.A. 82a-706; K.S.A. 82a-707(a), (c), (e); K.S.A. 2008 Supp. 82a-711; K.S.A. 2008 Supp. 82a-718; K.S.A. 82a-733; see Hawley, 281 Kan. at 614-15; Peck, Property Rights in Groundwater — Some Lessons from the Kansas Experience, 12 Kan. J.L. & Pub. Pol’y 493, 497 (Spring 2003).
The effect of these principles is that the Shipes do not own the rights to the water appurtenant to their land simply because they own the land. To hold water rights, they must have applied for and been granted the rights. According to Gregory Shipe’s testimony at the hearing on the motion for a temporary injunction, the Shipes had filed an application for water rights at one time but allowed the application to be dismissed. Thus, the Shipes do not own the water rights related to the property on which the temporary easements were sought.
Sometime after the Shipes’ application had been dismissed, District 25 applied with the DWR for the same water rights. In other words, District 25 does not attempt to take water rights that were previously held or are currently held by the Shipes.
Because the Shipes do not own the water rights, District 25 argues the Shipes lack standing to challenge its authority to acquire water rights. To support the argument, District 25 cites two condemnation cases from other states in which courts held that only owners of the condemned property had standing to object to a condemnation of property. See In re Condemnation by County of Berks, 914 A.2d 962, 966 (Pa. Commw. 2007) (investment company had no standing to raise prehminary objections to condemnation because it failed to obtain option to purchase property); Sunland Park v. Santa Teresa Services, 134 N.M. 243, 254, 75 P.3d 843 (2003) (ownership of a recognized property interest in the property taken or damaged is what malees the party a “condemnee”).
In addition, another out-of-state case discusses who has standing to object to the use of water rights. In Empire West Side Irrigation Dist. v. Lovelace, 5 Cal. App. 3d 911, 85 Cal. Rptr. 552 (1970), the water storage and distribution plan of two irrigation districts involved water rights which were appurtenant to the landowners’ property. The landowners objected to the way the water was to be distributed under the contract between the two districts. In holding that the landowners had standing to voice their objections, the California Court of Appeals found that because the landowners were members of one of the contracting districts, that district was merely an agent for purposes of diverting, storing, transporting, and delivering water. Consequently, the court determined the landowners, as members of the district, were interested and proper parties. 5 Cal. App. 3d at 914.
The Lovelace court juxtaposed its situation with one in which individuals have merely the right to receive water flow. The court noted that in such cases, those individuals would lack standing because they did not own the water right. 5 Cal. App. 3d at 913-14 (citing Erwin v. Gage Canal Co., 226 Cal. App. 2d 189, 37 Cal. Rptr. 901 [1964] [shareholders did not own water rights and facilities of corporation, but rather owned a right to have water delivered to their properties, a right appurtenant to their land]).
Here, unlike the landowners in Lovelace, the Shipes are not members of District 25. Nor do they own the rights to the water. Thus, neither the Shipes nor their agents own the groundwater rights sought by District 25. Consequently, if this action were solely about the condemnation of a water right, the Shipes would lack standing. But that question is not at the heart of this proceeding, even though the Shipes have made it their focus.
Rather, in the eminent domain proceeding, District 25 sought a temporary easement that would allow access to the Shipes’ property for the purpose of drilling test wells and evaluating water. Unquestionably, the Shipes have standing to object to a temporaiy easement on their property. Recognizing this, the district court more accurately recast the question as whether District 25 had the power to gain access to the point of diversion on which the application for water rights depends.
This question arises because of K.A.R. 5-3-3a, which provides:
“If the chief engineer [of DWR] is aware, or becomes aware that the applicant does not have legal access to either the point of diversion or the place of use, before an application . . . can be approved by the chief engineer, the applicant shall demonstrate that the applicant has legal access to the proposed point of diversion and the proposed place of use before approval of the application.”
See K.S.A. 82a-706a; K.S.A. 2008 Supp. 82a-708a.
Because of this legal access requirement, the district court reasoned that if District 25 ultimately has no authority to use eminent domain as a means of gaining legal access to points of diversion, it would not obtain the permit. It follows, the district court reasoned, that District 25 should not be allowed to test drill and cause damages even on a temporary basis. This reasoning was supported by testimony at the evidentiary hearing in which representatives of District 25 acknowledged “there would be no reason to do the test drilling if we weren’t considering this location for a water supply.”
Before us, District 25 points out that the current eminent domain action does not seek a permanent easement. Additionally, District 25 emphasizes it may never seek to permanently condemn the Shipes’ property. As the District 25 representatives testified at the evidentiary hearing, the drilling on the Shipes’ property is meant to provide District 25 information it needs as it weighs various options for obtaining water, including deciding if it will use one of the two other identified points of diversion; obtain other points of diversion that have not yet been identified; or pursue an entirely different source for a potential water supply. Consequently, seeking a permanent condemnation is not a foregone conclusion because even “if the test drilling turns out to be positive,” District 25 would look “at all of [its] options. If that still appears to be the most viable option . . . and if [it] can’t negotiate a reasonable settlement with the landowners, eminent domain would be [its] last resort.”
District 25’s argument raises questions of whether the issues relating to water rights are ripe and whether there is a current case or controversy.
Ripeness
The doctrine of ripeness is “designed To prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.’ ” National Park Hospitality Ass'n v. Department of Interior, 538 U.S. 803, 807, 155 L. Ed. 2d 1017, 123 S. Ct. 2026 (2003); see State ex rel. Morrison, 285 Kan. at 892. To be ripe, issues must have taken shape and be concrete rather than hypothetical and abstract. Public Serv. Comm’n v. Wycoff Co., 344 U.S. 237, 244, 97 L. Ed. 291, 73 S. Ct. 236 (1952).
Here, all parties agree a temporary easement would not provide permanent legal access to the point of diversion and District 25 will have to obtain permanent legal access to the point of diversion before its application for water rights can be approved. Consequently, the temporary easement is only for the purpose of District 25 gathering information for use in weighing its various options. If the test results are positive, as the district court recognized, the condemnation proceeding would proceed “unless [District 25] finds a better source of water elsewhere.” The possibility that other water sources might be pursued makes it uncertain whether District 25 will ever pursue a point of diversion on the Shipes’ property.
Nevertheless, the district court reasoned that even a temporary easement should not be allowed if there is no possibility that a permanent interest in the Shipes’ property could be obtained by eminent domain. This reasoning necessarily assumes that the only means of obtaining rights to the property would be by eminent domain. Granted, the Shipes’ actions to this point and their representations make it likely that access to the property would not be granted by any means other than condemnation. Yet, this conclusion is not certain. Indeed, if District 25 did eventually file an eminent domain proceeding seeking permanent access to the property, it is possible that someone other than the Shipes would own the property at that point in time.
In other words, the issue that the Shipes wish to have answéred is whether District 25 would have the right to condemn their property if in the future the water district decided to use their land as a point of diversion, if they still had an interest in the land at that point, and if the water district was unsuccessful in negotiating a purchase of rights to legal access to the property. This question is hypothetical, and an opinion answering the question would be advisory. See State ex rel. Morrison, 285 Kan. at 885.
The issue which is ripe in this action is whether District 25 can proceed with an action to obtain a temporary easement. Because the temporary easement would not give District 25 rights to water and the Shipes have not stated any objections other than those relating to water rights, the Shipes’ objections do not provide a basis for enjoining the temporary easement. See Winkel v. Miller, 288 Kan. 455, Syl. ¶ 1, 205 P.3d 688 (2009) (in eminent domain proceeding, district court must find that condemnor has the power of eminent domain and that the taking is necessary to condemnor’s lawful corporate purposes); Schuck, 286 Kan. at 25 (same). In other words, the Shipes have not challenged that District 25 has the power of eminent domain to obtain a temporary easement for the purpose of drilling and capping test wells for the purpose of testing water quality and quantity as part of District’s 25’s efforts to seek a water supply.
Consequently, we affirm the district court’s decision to grant District 25’s motion to dismiss, although we do so on a different basis, determining the action should be dismissed for lack of jurisdiction. See In re Marriage of Bradley, 282 Kan. 1, 8, 137 P.3d 1030 (2006) (upholding decision of district court where correct result reached although on different grounds).
Affirmed.
McFarland, C.J., not participating.
Daniel L. Love, District Judge, assigned. | [
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The opinion of the court was delivered by
Lockett, J.:
Plaintiffs appeal the Johnson County District Court’s granting of defendants’ motion to dismiss for lack of personal jurisdiction. The district court held that, while defendants had sufficient contacts to satisfy the Kansas long arm statute, K.S.A. 1986 Supp. 60-308(b)(l) and (2), the contacts were not sufficient to comply with the due process requirements of the Fourteenth Amendment.
Plaintiff Volt Delta Resources, Inc., (Volt Delta) is a Nevada corporation with its principal place of business in Nevada. Plaintiff VDJV, Inc., (VDJV) a subsidiary of Volt Delta, is a Delaware corporation with its principal place of business in New York. VDJV is registered to do business in the state of Kansas. Delta Resources, Inc., (Delta) a New York corporation, is also a subsidiary of Volt Delta Resources. Defendants William J. Devine and Kevin P. Meade are residents of New Jersey. Defendants George J. Mueller, Jr., and James S. DeGraw are residents of New York.
In 1985, all four defendants were employed by Delta as specialized computer programmers. Their specialty was the programming of computers designed for use in producing yellow and white page phone books and information systems for automated yellow pages. Plaintiff VDJV was a general partner with United Business Information, a subsidiary of United Telecom, Inc., in a Kansas partnership known as U.V. Associates, which was working on a project known as “Information Line.” VDJV provided individuals with technical expertise as its partnership contribution.
In 1985, VDJV sent defendants to Kansas to aid U.V. Associates in the design of the Information Line, a state of the art computerized telephone yellow pages system. Defendants continued to be paid by their New York employer, Delta. In the period July-October 1985, defendants worked on the Information Line Project at the offices of U.V. Associates in Overland Park, Kansas. Though defendants did not reside in Kansas during this period, they were each physically present in the state from July to October 1985 on an average of 43.5 work days of the approximate 201.25 days each worked on the Information Line project. In October and November 1985, after returning to New York, defendants terminated their positions with Delta and began work for Janus Systems, Inc., a New York corporation and one of plaintiffs’ competitors.
On May 22, 1986, plaintiffs filed a petition in the Johnson County District Court including the following six allegations against the defendants:
1. Wrongful termination of employment contracts.
2. Breach of fiduciary duty.
3. Intentional interference with contractual relations between VDJV and U.V. Associates, a Kansas partnership.
4. Malicious inducement of termination of employment (against defendant Devine).
5. Disclosure of trade secrets in violation of the the Kansas Uniform Trade Secrets Act, K.S.A. 60-3320 et seq.
6. Civil conspiracy.
Count I alleged that termination of the employment contract damaged the UV partnership project. Count III alleged that defendants intended to injure the Kansas partnership. Count V alleged that disclosure of trade secrets occurred before the defendants left plaintiffs’ employ. The complaint alleged that all the events in question occurred or were caused to occur in or around Johnson County, Kansas.
Defendants filed a motion to dismiss for lack of personal jurisdiction or in the alternative because Kansas was not a convenient jurisdiction to try the issues (forum non conveniens). The district court granted defendants’ motion to dismiss holding that, although defendants’ contacts with the state of Kansas were sufficient to satisfy the Kansas long arm statute, K.S.A. 1986 Supp. 60-308, those contacts were not sufficient to satisfy the due process requirement of the Fourteenth Amendment.
The Kansas long arm statute is liberally construed to assert personal jurisdiction over nonresident defendants to the full extent permitted by the due process clause of the Fourteenth Amendment to the U.S. Constitution. Ling v. Jan's Liquors, 237 Kan. 629, 633, 703 P.2d 731 (1985) (citing Misco-United Supply, Inc. v. Richards of Rockford, Inc., 215 Kan. 849, 528 P.2d 1248 [1974]; Woodring v. Hall, 200 Kan. 597, 438 P.2d 135 [1968]). When the existence of personal jurisdiction is controverted, plaintiff has the minimal burden of establishing a prima facie threshold showing that constitutional and statutory requirements for the assumption of personal jurisdiction are met. Ammon v. Kaplow, 468 F. Supp. 1304, 1309 (D. Kan. 1979); Professional Investors Life Ins. Co. v. Roussel, 445 F. Supp. 687, 691-92 (D. Kan. 1978).
K.S.A. 1986 Supp. 60-308(b)(l) and (2) provide:
“Any person whether or not a resident or citizen 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 this state;
(2) commission of a tortious act within this state.”
Here, defendants were employees of a New York corporation temporarily assigned to Kansas to perform computer programming services for a Kansas partnership. They were physically present in Kansas for a total of over six weeks during which several of the alleged acts occurred.
“Business” is transacted within the state when an individual is within or enters this state in person or by agent and, through dealing with another within the state, effectuates or attempts to effectuate a purpose to improve his economic conditions and satisfy his desires. Woodring v. Hall, 200 Kan. at 607. The transaction of business exists when the nonresident purposefully does some act or consummates some transaction in the forum state. White v. Goldthwaite, 204 Kan. 83, 88, 460 P.2d 578 (1969).
K.S.A. 1986 Supp. 60-308(b)(2) provides for jurisdiction over a nonresident defendant who commits a “tortious act within the state.” Where tortious conduct occurs outside this state, personal jurisdiction may result as long as the injury resulting from the tortious act occurs in the state. Ling v. Jan's Liquors, 237 Kan. at 633. Plaintiffs’ petition alleges several tortious acts which, if proved, clearly caused injury to the Kansas partnership, U.V. Associates, and plaintiffs also claim that some of the tortious acts occurred in Kansas.
The district court determined that the allegations of the plaintiffs’ petition were sufficient to establish that defendants’ activities in Kansas met the requirements for jurisdiction over a nonresident under either provision of the Kansas long arm statute, since defendants had allegedly transacted business in the state of Kansas within the meaning of K.S.A. 1986 Supp. 60-308(b)(1) and there were sufficient allegations of tortious acts under K.S.A. 1986 Supp. 60-308(b)(2). However, the district court held that the Fourteenth Amendment’s due process clause denied this state’s assertion of personal jurisdiction over the nonresidents.
Although the requirements of the long arm statute may be satisfied, federal constitutional considerations may defeat the assertion of personal jurisdiction. Therefore, when considering questions of personal jurisdiction, a two-step analysis is required. First, does the defendant’s conduct fall within the scope of the relevant provision of the Kansas long arm statute? Second, does the exercise of personal jurisdiction in the particular case comply with the due process requirements of the Fourteenth Amendment as set out in the decisions of the United States Supreme Court? Misco-United Supply, Inc. v. Richards of Rockford, Inc., 215 Kan. at 852; Davis v. Grace, 4 Kan. App. 2d 704, 707-08, 610 P.2d 1140 (1980). Satisfaction of due process depends on the quality and nature of the activities of the defendant, determined on a case by case basis. Woodring v. Hall, 200 Kan. at 602.
The Fourteenth Amendment’s due process clause limits the forum state’s assertion of personal jurisdiction over nonresidents. Minimum contacts with the forum state must exist so that the assertion of personal jurisdiction will 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. International Shoe Co. v. Washington, 326 U.S. 310, 90 L. Ed. 95, 66 S. Ct. 154 (1945).
In addition, before a state can assert personal jurisdiction, the individuals must have “fair warning” that a particular activity may subject them to the jurisdiction of a foreign sovereign. The “fair warning” requirement is satisfied if the defendant has purposefully directed his activities at residents of the forum and the litigation results from alleged injuries that arise out of or relate to those activities. Where an individual purposefully directs his activities toward forum residents or has purposefully derived benefits from their interstate activities, a state generally has a manifest interest in providing its residents with a convenient forum for redressing injuries inflicted by out-of-state actors. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 85 L. Ed. 2d 528, 105 S. Ct. 2174 (1985).
“Once it has been decided that a defendant purposefully established minimum contacts within the forum State, these contacts may be considered in light of other factors to determine whether the assertion of personal jurisdiction comports with ‘fair play and substantial justice.’ [Citation omitted.] Thus, courts in ‘appropriate case[s]’ may evaluate ‘the burden on the defendant,’ ‘the forum State’s interest in adjudicating the dispute,’ ‘the plaintiff s interest in obtaining convenient and effective relief,’ ‘the interstate judicial system’s interest in obtaining the most efficient resolution of controversies,’ and the ‘shared interest of the several States in furthering fundamental substantive social policies.’ ” Burger King, 471 U.S. at 476-77.
When reviewing the allegations of the petition, the district court relied on factors enumerated in Fisher Governor Co. v. Superior Court, 53 Cal. 2d 222, 1 Cal. Rptr. 1, 347 P.2d 1 (1959). These factors include: (1) the state’s interest in providing a forum for its residents or in regulating the business involved, (2) the relative availability of evidence and the burden of defense and prosecution in one forum rather than another, (3) the ease of access to an alternative forum, and (4) the extent to which the cause of action arose out of the defendant’s local activities.
Applying these factors to the allegations of the plaintiffs’ petition, the district court found that accepting jurisdiction would be an injustice since (1) all parties were residents of other states and Kansas had no interest in providing a forum, (2) evidence would likely be more readily located in New York and the burden of litigation would be less onerous in New York, (3) plaintiffs’ cause of action had only a tenuous connection to defendants’ temporary assignment in Kansas, and (4) Kansas was not the appropriate forum to litigate claims arising from the employment relations of residents of other states. The district court actually placed primary emphasis on factors applicable in determining if a trial court should decline to accept jurisdiction under the doctrine of forum non conveniens, rather than on traditional personal jurisdiction factors.
Forum non conveniens is an equitable doctrine under which the trial court, having jurisdiction over the subject matter and the parties, may decline to exercise this jurisdiction if it can be shown that the forum is significantly inconvenient for trial of the issues. Trial courts have the inherent power to dismiss a transitory cause of action under the doctrine where facts and circumstances call for its application. See Casad, Long Arm and Convenient Forum, 20 Kan. L. Rev. 1, 12 (1971), and the leading United States Supreme Court case, Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 91 L. Ed. 1055, 67 S. Ct. 839 (1947).
The leading Kansas case applying the doctrine of forum non conveniens is Gonzales, Administrator v. Atchison, T.&S.F. Rly. Co., 189 Kan. 689, 371 P.2d 193 (1962), where we upheld dismissal for forum non conveniens of an F.E.L.A. case brought by a Colorado resident against a Kansas corporation to recover for injuries sustained in Colorado. In Gonzales, we adopted the l'easoning of the United States Supreme Court as expressed in Gulf Oil Corp. v. Gilbert in determining when a court should decline to accept jurisdiction under forum non conveniens. Among the considerations to be weighed by the trial court when determining whether to decline jurisdiction are the relative ease of access to the sources of proof, availability of compulsory process for attendance of unwilling witnesses, and the cost of obtaining attendance of willing witnesses. Other factors include the possibility of viewing the premises, if practical; any question as to the enforceability of a judgment if one is obtained; the relative advantages and obstacles to a fair trial; and all other practical problems that make atrial of the case easy, expeditious, and inexpensive.
While the policy of the long arm statute may be primarily to serve the interest of resident plaintiffs in obtaining jurisdiction over out-of-state defendants, there is nothing in the statute which precludes a nonresident from bringing an action in Kansas where the statutory and due process requirements are met. The district court incorrectly determined that the due process requirements of the Fourteenth Amendment prohibited the assertion of personal jurisdiction over the defendants under K.S.A. 1986 Supp. 60-308.
Affidavits and other evidence not considered by the trial court were included in the record on appeal by the defendants. Evidence not presented to the trial court will not be considered for the first time on appeal.
Reversed and remanded for further proceedings. | [
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|
The opinion of the court was delivered by
Johnson, J.:
Peter and Desiree Marx seek review of the Court of Appeals’ reversal of the district court’s suppression of evidence obtained during a traffic stop detention. The reversal was based on the Court of Appeals’ determination that the initial traffic stop was lawful because the detaining officer had a reasonable suspicion that the vehicle driver had violated K.S.A. 8-1522. The State cross-petitions for review of the Court of Appeals’ holding that the district court correctly determined that the initial detention was not justified as a public safely or community caretaking stop. We affirm the Court of Appeals on the State’s cross-petition, but reverse its holding on the officer’s reasonable suspicion of criminal activity.
FACTUAL OVERVIEW
The parties essentially agree with the factual recitation in the Court of Appeals opinion. See State v. Marx, 38 Kan. App. 2d 598, 600-02, 171 P.3d 276 (2007). The State does take exception to one statement about the officer’s conduct during the detention, but that factual discrepancy has no bearing on the question presented in this appeal. For our purposes, a summarized version of only the relevant facts will suffice.
Lyon County Sheriffs Deputy Cory Doudican was providing roadside assistance to a motorist at milepost 127 of the Kansas Turnpike when the Marxes’ motor home lost a hubcap as it passed by Doudican’s location. Doudican retrieved the hubcap and headed after the motor home, catching up with the vehicle approximately a mile down the road. The deputy continued to follow the motor home for approximately 1/2 to 1 mile, until he “noticed that the motorhome crossed the fog line, which is a solid white line, overcorrected and crossed the center line.” That observation prompted the deputy to activate the emergency lights and conduct a traffic stop. On cross-examination, the deputy clarified that, by “centerline,” he was referring to the “dotted line,” which presumably is the lane marker between the two northbound lanes of 1-35. The deputy also acknowledged that the motor home was displaying California license plates and heading north on 1-35.
The deputy approached the vehicle’s passenger side, handed the hubcap to Peter through a half-open window, and detected a “brief smell of burnt marijuana.” The deputy obtained the Marxes’ driver’s licenses, vehicle registration, and proof of insurance, and had Desiree, the vehicle’s driver, accompany him to the patrol car. After issuing a warning ticket, returning the couple’s documents, and telling Desiree that she was free to leave, subsequent events led to a search of the motor home and the discovery of drugs and paraphernalia. The Marxes also made post-Miranda incriminating statements.
The Marxes were charged with obstructing official duty, possession of cocaine, possession of marijuana, possession of drug paraphernalia, and failure to pay drug tax. They filed a motion to suppress all physical and testimonial evidence, challenging both the initial vehicle stop and the extended detention. In granting the motion, the district court first found that the deputy was not motivated by a desire to return the hubcap and the initial detention was not justified as a public safety stop. Next, the district court found that the deputy did not have reasonable suspicion that De siree had violated K.S.A. 8-1522, failure to maintain a single lane, and that the deputy had not testified that he stopped the vehicle for a violation of K.S.A. 8-1548, failure to signal a turn. Because the district court found the initial vehicle stop was unlawful, it did not reach the other issues concerning the deputy’s conduct during the detention.
The State appealed, claiming the initial vehicle stop was lawful for two reasons: (1) It was justified as a public safety or community caretaking stop; or (2) the deputy had reasonable suspicion that Desiree had violated K.S.A. 8-1522(a) by failing to maintain the motor home within a single lane. As noted, the Court of Appeals rejected the public safety argument but agreed that the stop was lawfully supported by reasonable suspicion of criminal activity. In remanding to the district court, the Court of Appeals directed the district court to address the unanswered issues raised in the suppression motion, such as whether the deputy’s investigation exceeded the scope of the initial stop. 38 Kan. App. 2d at 609. We granted both the Marxes’ petition for review and the State’s cross-petition for review.
STANDARD OF REVIEW
The Court of Appeals cited to the oft-repeated standard of review for evidence suppression issues on appeal:
“ ‘In reviewing a district court’s decision regarding suppression, [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. This court does not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. [Citation omitted.]’ State v. Ackward, 281 Kan. 2, 8, 128 P.3d 382 (2006).” 38 Kan. App. 2d at 602.
Additionally, this case requires us to interpret the provisions of K.S.A. 8-1522(a). To that extent, our review is also unlimited and likewise unfettered by the trial court’s legal rulings. See State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006).
In stating the standard of review, the Court of Appeals also noted that “the State bears the burden of proving the lawfulness of a search and seizure by a preponderance of the evidence. State v. Porting, 281 Kan. 320, 324, 130 P.3d 1173 (2006).” Marx, 38 Kan. App. 2d at 602. In that regard, the Marxes cite to Dalmasso v. Dalmasso, 269 Kan. 752, Syl. ¶ 6, 9 P.3d 551 (2000), for the proposition that any ruling which is merely adverse to the party with the burden of proof is a “negative finding,” and negative findings will not be disturbed on appeal absent proof of an arbitraiy disregard of undisputed evidence or some extrinsic consideration such as bias, passion, or prejudice. However, such a deferential standard should not be, and in practice has not been, actually applied to undermine the de novo, independent review of legal questions with which appellate courts are properly imbued.
Nevertheless, as the Marxes point out, the district court in this case made a number of findings describing facts for which the State had faded to present evidence. Such findings are truly negative findings, and we will review them as such in lieu of applying the substantial competent evidence standard.
UNDERLYING PRINCIPLES
Before directly addressing the issues raised in this appeal, we pause to briefly review the underlying principles. Both the Fourth Amendment to the United States Constitution and §15 of the Kansas Constitution Bill of Rights prohibit unreasonable governmental searches and seizures. The inquiry into the reasonableness of searches and seizures balances the State’s interests against an individual’s right to be secure from unwarranted governmental intrusion. Terry v. Ohio, 392 U.S. 1, 20-21, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968).
A law enforcement officer who stops a vehicle on a public roadway has effected a seizure. See State v. McKeown, 249 Kan. 506, 510, 819 P.2d 644 (1991) (vehicle stop on public roadway always a seizure). In this state, we have recognized two circumstances where the State’s interests outweigh the intrusion on individual rights occasioned by a vehicle seizure.
The first circumstance, based on Terry v. Ohio and codified in K.S.A. 22-2402(1), arises where the officer knows of specific and articulable facts that create a reasonable suspicion that a crime has been, is being, or is about to be committed. See State v. Anderson, 281 Kan. 896, 901, 136 P.3d 406 (2006). Frequently, the State establishes this circumstance through the officer’s pre-stop observation of a traffic infraction. “ "A traffic violation provides an objectively valid reason to effectuate a traffic stop, even if the stop is pretextual.’ ” State v. Moore, 283 Kan. 344, 350, 154 P.3d 1 (2007) (quoting State v. Anderson, 281 Kan. 896, 901, 136 P.3d 406 [2006]).
The second circumstance, commonly referred to as the community caretaking stop or public safety stop, was first recognized by this court in State v. Vistuba, 251 Kan. 821, 840 P.2d 511 (1992), disapproved in part on other grounds by State v. Field, 252 Kan. 657, 847 P.2d 1280 (1993). Vistuba divined that “a civil or criminal infraction is not always essential to justify a vehicle stop. Safety reasons alone may justify the stop, if the safety reasons are based on specific and articulable facts.” 251 Kan. at 824. Subsequently, the Court of Appeals opined that to justify a public safety stop, the officer must have objective, specific, and articulable facts to suspect that a citizen is in need of help or is in peril. State v. Gonzales, 36 Kan. App. 2d 446, 456, 141 P.3d 501 (2006).
This appeal requires our consideration of both circumstances. We take the liberty of commencing with the State’s cross-petition, which challenges the Court of Appeals’ rejection of its proffered public safety stop rationale.
PUBLIC SAFETY/COMMUNITY CABETAKING STOP
In its cross-petition, the State argues that the community caretaking function of a law enforcement officer is broad enough to encompass mechanical problems with vehicles that implicate public safety. Specifically, in this instance, the State argues that Deputy Doudican was justified in stopping the motor home to check for other loose parts that might dislodge and fly through the air.
The Court of Appeals applied its prior holding in Gonzales to reject the State’s argument regarding the scope of public danger posed by the lost hubcap. In Gonzales, the law enforcement officer had observed a “bouncing” rear tire and an open hatch cover over the fuel cap on the vehicle that was detained. 36 Kan. App. 2d at 448. The Court of Appeals reiterated Gonzales’ holding that to justify a public safety vehicle stop, there must be objective, specific, and articulable facts which would lead a law enforcement officer to reasonably suspect that a citizen is in need of help or is in peril. Marx, 38 Kan. App. 2d at 603. The Marx panel then noted that Gonzales had found that the bouncy tire fit the criteria for public safety, justifying the vehicle stop, but that the open fuel hatch did not. The open fuel hatch merely presented a matter of public “courtesy.” The Court of Appeals opined that the Marxes’ lost hubcap was more akin to Gonzales’ open fuel hatch, malting the stop a courtesy endeavor rather than a bona fide public safely stop. 38 Kan. App. 2d at 604.
More importantly, the Court of Appeals’ assessment of the level of public danger posed by the Marxes’ mechanical problem was a secondary consideration. The opinion’s principal holding is that “the primary motivation of a valid public safety stop must be for community caretaking purposes.” 38 Kan. App. 2d at 603. Although the holding in Whren v. United States, 517 U.S. 806, 813, 135 L. Ed. 2d 89, 116 S. Ct. 1769 (1996), requires us to ignore a law enforcement officer’s subjective motivation for stopping a vehicle for a traffic violation, permitting the public safety rationale to serve as a pretext for an investigative detention runs the risk of emasculating our Fourth Amendment protections. See Marx, 38 Kan. App. 2d at 603.
As the Court of Appeals noted, the district court specifically found that Deputy Doudican’s stop was not primarily motivated by community caretaking concerns. That finding is supported by substantial competent evidence, not the least of which was the deputy’s admission that the real reason for the stop was the perceived traffic infraction. Moreover, a community caretaking motivation is belied by the deputy’s actions in following the motor home for approximately a mile in the hope of observing a traffic violation rather than immediately addressing the alleged endangerment to the public.
We are persuaded by the sound reasoning of the Court of Appeals’ decision. The State failed to carry its burden of justifying the initial detention of the Marxes’ motor home as a public safety stop for community caretaking purposes. The Court of Appeals holding on this issue, affirming the district court’s ruhng, is affirmed.
REASONABLE SUSPICION OF TRAFFIC INFRACTION
As this case is presented to us, the question of whether the initial stop of the motor home was a lawful investigatoiy detention based on reasonable suspicion of criminal activity turns on Deputy Doudican’s allegations that he observed a violation of K.S.A. 8-1522(a). That statute provides:
“Whenever any roadway has been divided into two (2) or more clearly marked lanes for traffic, the following rules in addition to all others consistent herewith shall apply.
“(a) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.” K.S.A. 8-1522.
The district court had to determine whether the deputy’s testimony — that he observed the motor home cross the fog line, overcorrect, and cross the centerline — was sufficient to meet the State’s burden of proving that the deputy had reasonable suspicion that the motor home driver was violating K.S.A. 8-1522(a), which is designated as a traffic infraction. See K.S.A. 21-3105(2) (traffic infraction is violation of any statutory provision listed in K.S.A. 8-2118); K.S.A. 2008 Supp. 8-2118(c) (listing 8-1522 in uniform fine schedule). In analyzing that question, the district court relied on the prior Court of Appeals decision in State v. Ross, 37 Kan. App. 2d 126, 149 P.3d 876, rev. denied, 284 Kan. 950 (2007).
In Ross, an officer followed the defendant’s vehicle for approximately 2 miles before observing the automobile cross over the fog line once. The officer stopped the vehicle based on a violation of K.S.A. 8-1522(a). After discovering the defendant did not have a valid driver’s license, the officer arrested the defendant and subsequently found drugs and drug paraphernalia on his person. The district court denied Ross’ challenge to the legality of the initial stop.
On appeal, Ross argued that the statute’s requirement of maintaining a single lane is specifically qualified by the phrase, “as nearly as practicable,” so that crossing the fog fine is not necessarily a violation of K.S.A. 8-1522(a). The Court of Appeals agreed, finding that “ ‘[a]s nearly as practicable’ connotes something less than the absolute.” 37 Kan. App. 2d at 129. The panel noted that au tomobiles, unlike railway locomotives, do not run on fixed rails. 37 Kan. App. 2d at 129.
The opinion then discussed instances where a driver is permitted to exercise discretion in deciding whether to change lanes, such as to avoid a hazard in the roadway or to pass slower moving vehicles. Accordingly, Ross opined that the essential gravamen of K.S.A. 8-1522(a) is that “[w]e may move from our lane of travel only after first determining it is safe to do so.” 37 Kan. App. 2d at 130. Applying its inteipretation of K.S.A. 8-1522(a), Ross concluded:
“In the present case, Ross was proceeding northbound on 1-135 near Newton. We presume that the right shoulder of the highway was paved, as is the normal situation, since there is no evidence to the contrary. There was no testimony that there was any obstacle or barrier on the shoulder that presented an immediate danger. There was no testimony that sand, gravel, or debris on the shoulder presented a hazard to a motorist who directed his or her vehicle onto the shoulder. There was no testimony that [the police officer] was concerned that the driver might have been falling asleep or was intoxicated. Ross’ vehicle was not weaving back and forth on the roadway. He was not using the paved shoulder as a regular lane of travel. He crossed the fog line only briefly, for only a short distance, and only once. In short, there was no reasonable suspicion that Ross was engaged in the conduct that is at the heart of the statute: moving a vehicle from its lane of travel without first ascertaining that it could be done safely. Absent any such concern on [the officer’s] part, there was no reasonable suspicion to warrant stopping Ross and, therefore, insufficient evidence to support his convictions. The district court erred in not suppressing the evidence obtained by this unsupported governmental intrusion.” 37 Kan. App. 2d at 131.
Consistent with Ross, the district court in this case included a number of findings in its suppression hearing journal entry detailing what the State had failed to prove, including:
“5. There was no evidence presented how far across the centerline the defendants’ vehicle traveled.
“6. There was no evidence presented to the court, that in the totality of the circumstances it was not safe for the defendants’ vehicle to move from its lane of travel.
“10. There was not testimony presented that Doudican was concerned that the driver of defendants’ vehicle was falling asleep.
“11. No evidence was presented that defendants’ vehicle was weaving back and forth on the roadway.
"12. There was no testimony presented that there was sand, gravel or other debris on the shoulder of the roadway which would present a hazard to a motorist who directed his or her vehicle onto the shoulder.
“13. There was no evidence presented that there was any obstacle or barrier on the shoulder of the roadway that presented an immediate danger.
“14. There was no testimony concerning traffic conditions on the roadway at the time the officer stopped defendants’ vehicle.
“15. Deputy Doudican had no reasonable suspicion of a violation of K.S.A. 8-1522.”
The Court of Appeals in this case did not focus on the district court’s findings, presumably because it disapproved of the Ross opinion upon which those findings were based. In that vein, Marx discussed United States v. Jones, 501 F. Supp. 2d 1284 (D. Kan. 2007), which the panel characterized as having “heavily criticized” Ross’ interpretation of K.S.A. 8-1522. 38 Kan. App. 2d at 606. The Court of Appeals recited:
“According to Jones, the Ross opinion is ‘ambiguous on whether an officer has reasonable suspicion of a K.S.A. 8-1522 violation only if the lane movement was actually unsafe or whether it is enough that the officer reasonably suspects the driver failed to determine first the safety of the lane movement.’ 501 F. Supp. 2d at 1292. The Jones court noted that K.S.A. 8-1522 was patterned after § 11-309 (2000) of the Uniform Vehicle Code. 501 F. Supp. 2d at 1292. According to Jones, the Ross decision is in ‘conflict with the well-reasoned precedent of other jurisdictions and, in particular, the well-established line of Tenth Circuit precedent interpreting [K.S.A. 8-] 1522(a).’ 501 F. Supp. 2d at 1298.” 38 Kan. App. 2d at 607.
The Marx panel opined that “[t]he Tenth Circuit has consistently held that a vehicle drifting out ofa lane, even one time, can provide reasonable suspicion of a violation of K.S.A. 8-1522 when, under the circumstances, the driver should reasonably be expected to maintain a straight course.” 38 Kan. App. 2d at 607. Further, the panel related Jones’ discussion of the reasonable suspicion standard, which does not require that the facts be sufficient to sustain a conviction under K.S.A. 8-1522. Rather, the facts need only be adequate to allow the formation of an objectively reasonable suspicion of a statutory violation. Moreover, Jones noted that where an officer reasonably believed in good faith that a traffic violation had occurred, the stop would remain valid even if the driver were to be subsequently found not guilty of the traffic violation. 38 Kan. App. 2d at 607.
Returning to the facts of the instant case, the Court of Appeals noted that the evidence was undisputed that the deputy had observed the Marxes’ motor home cross the fog line, overcorrect, and cross the centerline. The panel declared that to be “an inherently unsafe maneuver,” and it held that the district court had “erred as a matter of law” when it found the deputy lacked reasonable suspicion of a K.S.A. 8-1522 violation. 38 Kan. App. 2d at 607-08. In reaching that conclusion, the Marx panel specifically rejected Ross’ interpretation of K.S.A. 8-1522 in favor of its own explanation of what the statutoiy language means:
“We interpret K.S.A. 8-1522 to mean that a vehicle shall be driven as nearly as practicable entirely within a single lane of traffic. The ‘nearly as practicable’ language allows a driver to momentarily move outside a lane of traffic due to special circumstances such as weather conditions or an obstacle in the road. Otherwise, the driver must stay in one lane. The statute further provides that if a driver intentionally decides to move his or her vehicle from its lane of traffic, the driver must first ascertain that such movement can be made with safety.” 38 Kan. App. 2d at 608.
Our first task is to resolve the conflict between Ross and Marx as to the conduct proscribed by K.S.A. 8-1522(a), i.e., to determine the elements of the offense. We begin, as we must, by returning to the statutoiy language. See Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007) (fundamental rule of statutoiy construction requires giving effect to legislature’s language rather than determining what the law should or should not be).
The opening paragraph of K.S.A. 8-1522 establishes a condition precedent to the applicability of the rules which follow. The driver must be traveling on a roadway which has been divided into two or more clearly marked lanes for traffic. There is no dispute that the lane from which the Marxes’ vehicle allegedly strayed was clearly marked on both sides.
The first listed rule then states: “A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.” (Emphasis added.) K.S.A. 8-1522(a). The statute directs drivers to perform a positive act (drive entirely within one’s lane) and to refrain from doing a prohibited act (moving from one’s travel lane without first ascertaining it is safe to do so). Standing alone, each directive is seemingly straightforward, and we do not discern that the Court of Appeals’ conflict in the Ross and Marx opinions is based upon differing interpretations of the individual directives. Where those opinions appear to depart is in their respective characterization of the relationship between the directives, i.e., whether they are alternative means of violating K.S.A. 8-1522(a) or are both necessary elements of but one prohibited act.
Jones suggested that Ross had ignored the positive directive of K.S.A. 8-1522(a) (drive entirely within one’s lane) by collapsing it into the negative directive (do not move without ascertaining it is safe) to glean only a single duty emanating from K.S.A. 8-1522(a), which was stated as: “ We may move from our lane of travel only after first determining it is safe to do so.’ [Citation omitted.]” Jones, 501 F. Supp. 2d at 1291 (quoting Ross, 37 Kan. App. 2d at 130). However, we view the effect of the Ross holding as treating the two directives as elements of a single offense, so that to obtain a conviction under K.S.A. 8-1522(a), the State must prove both that the driver failed to stay within the lane markers and that the movement outside the lane was made without first ascertaining that it was safe to move.
Support for Ross’ position can be found in the plain language of K.S.A. 8-1522(a). The word “and” sits between the two directives; “and” is ordinarily used in a statute as a conjunctive. 82 C.J.S., Statutes § 331. To paraphrase the legislature, a person is to drive within a single lane and is not to move without ascertaining it is safe to do so. Arguably, then, the safety factor is conjoined with, and always applicable to, the duty to maintain a single lane.
Further, Ross could have found support in the decisions of other jurisdictions. As Jones acknowledged:
“A review of other jurisdictions reveals more diversity in interpretation than one would expect for a uniform vehicle code provision. A number of jurisdictions read together the duties of maintaining a single lane and of ascertaining the safety of changing lanes before doing so and then recognize a violation only if the lane movement was made before the safety of the movement was ascertained. See, e.g., Crooks v. State, 710 So. 2d 1041, 1043 (Fla. App. 2 Dist. 1998); State v. Tague, 676 N.W.2d 197, 203 (Iowa 2004); Rowe v. State, 363 Md. 424, 769 A.2d 879, 885 (2001); State v. McBroom, 179 Or. App. 120, 39 P.3d 226,229 (Or. App. 2002); Hernandez v. State, 983 S.W.2d 867, 871 (Tex. App. 1998). Some of those decisions may be premised, in part, on reading the statute as prohibiting movement only between marked traffic lanes and not prohibiting movement across the fog line onto the shoulder of the road. State v. Phillips, 2006 WL 3477003 at 9 (Ohio App. 3 Dist. 2006); see State v. Lafferty, 291 Mont. 157, 162, 967 P.2d 363, 366 (Mont. 1998) (In our view, however, the statute relates to moving from a marked traffic lane to another marked traffic lane.’); see, e.g., State v. Tague, 676 N.W.2d at 203 (citing Lafferty); Rowe v. State, 769 A.2d at 886 (citing and quoting Lafferty). In some of those decisions, one can even find language suggesting that the statute is violated only by an unsafe lane change. [Citations omitted.]” Jones, 501 F. Supp. 2d at 1296-97.
Some of these cases rely on a belief that the principal purpose of the statute is to promote safety on laned highways. See, e.g., Crooks v. State, 710 So. 2d 1041, 1043 (La. App. 1997) (“a violation does not occur in isolation, but requires evidence that the driver s conduct created a reasonable safety concern”); Rowe v. State, 363 Md. 424, 434, 769 A.2d 879 (2001) (“more than the integrity of the lane markings, the purpose of the statute is to promote safety on laned roadways”); and Hernandez v. State, 983 S.W.2d 867, 871 (Tex. App. 1998) (“the histoiy of the relevant statutory provision seems to indicate that, with respect to a vehicle’s straying .over a lane marker, a traffic violation occurs only when the vehicle’s movement is in some way unsafe”).
Marx, on the other hand, took a different tack, interpreting the statute as creating two separate duties: (1) A driver must stay within the lane markers except for momentary breaches caused by special circumstances; and (2) a driver who intentionally decides to move the vehicle from the lane of travel must first ascertain that such movement may be made with safety. The opinion suggested that proof of a breach of the duty to stay within one’s lane is sufficient, without more, to constitute a violation of K.S.A. 8-1522(a). In effect then, Marx construed the statute as creating alternative means for committing the traffic infraction by either: (1) violating the integ rity of the lane markers; or (2) by effecting a lane change without ascertaining it was safe to do so.
As with the discussion of Ross, one can find decisions from other jurisdictions to bolster the Marx interpretation. As Jones noted, some jurisdictions and courts “read the uniform provision [8-1522] as consisting of two separate requirements and as having been violated if either requirement is not met.” 501 F. Supp. 2d at 1297 (citing People v. Butler, 81 Cal. App. 3d Supp. 6, 8, 146 Cal. Rptr. 856, 857 [1978]; People v. Smith, 172 Ill. 2d 289, 216 Ill. Dec. 658, 665 N.E.2d 1215, 1218-19 [1996] [“plain language of the statute establishes two separate requirements for lane usage”]; State v. Hodge, 147 Ohio App. 3d 550, 771 N.E.2d 331, 338-39 [2002]). Some of the cases imply that the provision was not intended to allow “lane-straddling,” even when it might be safe to do so, or that the safety consideration of the second directive was intended to apply solely to lane changes, not to lane-straddhng. See Butler, 81 Cal. App. 3d Supp. at 8 (to allow motorists to ignore lane markings so long as they did not make an unsafe movement would have clearly deleterious effect on ordinary flow of traffic); McBroom, 179 Or. App. at 126 (driver not excused from staying within lane unless moving from one lane to another after first making certain it is safe).
K.S.A. 8-1522 was patterned after § 11-309 of the Uniform Vehicle Code, and K.S.A. 8-2203 directs that the uniform act “shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it.” However, as demonstrated by the above citations, no clearly uniform interpretation of this provision has emerged from our sister states that would constrain, or even guide, our interpretation and construction of K.S.A. 8-1522. Moreover, although great respect is accorded the decisions of the federal jurists in the Tenth Circuit, the ultimate responsibility for interpreting the laws of the state of Kansas falls squarely on our shoulders. Accordingly, we humbly strike out on our own to intuit the most logical meaning to ascribe to this islative language.
First, we must squarely address the drafters’ use of the conjunctive “and” between the two directives, as did the California appellate court in Butler. That decision resolved the dilemma by declaring that “to carry out the legislative intention ‘and’ can be interpreted as meaning ‘or.’ ” 81 Cal. App. 3d at 8. Such a “black” means “white” declaration is difficult to reconcile with our statutory construction directive that “[o]rdinaiy words are given their ordinary meaning.” See Winnebago Tribe of Nebraska, 283 Kan. at 77.
However, this court has utilized that same convenient rule of substitution where it discerned that the legislature was simply imprecise in its word choice. See State ex rel. Stephan v. Martin, 230 Kan. 747, 751-53, 641 P.2d 1011 (1982) (noting that “or” and “and” are frequently misused; the court will construe the language to reflect the true meaning and intent of a statute); Starr v. Flynn, 62 Kan. 845, 847-49, 62 P. 659 (1900) (quoting Sutherland on Statutory Construction § 252 and finding it is permissible to substitute “or” for “and” and vice versa in order to give conflicting statutory sections force and effect). Further support can be found in legal treatises.
‘‘[Cjonjunctive words used in a statute may be construed as disjunctive. The courts will not resort to such a construction, however, except for strong reasons, and only if the context favors that interpretation.
“. . . The words ‘or’ and ‘and’ may be construed as interchangeable when, and if, it is necessary to effectuate the obvious intention of the legislature, as where the failure to adopt such a construction would render the meaning of the statute ambiguous or result in absurdities.” 82 C.J.S., Statutes § 331.
We perceive that this is one of those rare occasions when the context of the entire statute counsels against placing an inordinate emphasis on the chosen connecting word. See McIntosh v. Sedgwick County, 282 Kan. 636, 642, 147 P.3d 869 (2006) (courts not permitted to focus on isolated part of act but must consider and construe together all parts thereof in pari materia). The rules set forth in the statute address two different operational aspects of traveling on a laned roadway: driving down the road in a selected lane of travel and changing the lane of travel. When a driver is engaged in one operation, he or she is not engaged in the other. Each directive is preceded by its own commanding word, “shall.” Conjoining both rules as elements of one offense is, at best, highly suspect.
The first directive mandates that the vehicle must be driven as nearly as practicable entirely within a single lane (single lane rule). This is a continuous rule; it applies to the entire trip on a laned roadway and ceases to apply only when the vehicle exits the roadway. However, the statute provides for a temporary suspension of the single lane rule in two instances: when it is impracticable to stay within the lane markers and when the driver is moving from the lane of travel. Obviously, the single lane rule must yield to a lane change or that maneuver could not be accomplished. Nevertheless, once the lane change is effected and the vehicle is traveling in the new lane, the single lane rule suspension must end. It would render the single lane rule a nullity to permit a driver to straddle a lane marker for the remainder of the trip just because he or she had complied with the rule governing movement from the first chosen lane of travel. See State v. Walker, 280 Kan. 513, 523, 124 P.3d 39 (2005) (courts construe statutes to avoid unreasonable results).
Moreover, the second directive in K.S.A. 8-1522(a) speaks to a vehicle being “moved from such lane.” The “such” refers back to the first directive’s “single lane,” entirely within which the vehicle must have been traveling. K.S.A. 8-1522(a). Accordingly, the movement from a single lane of travel connotes a movement to another lane of travel, i.e., a lane change, where the vehicle must again stay entirely within the lane markers. While the lane change is occurring, the single lane rule is, by necessity, not applicable and could not be an element of an improperly executed lane change.
In contrast to the continuing obligation mandated by the single lane rule, the second directive creates a momentary, one-time duty, i.e., to ascertain that a lane change can be made with safety. After the lane change is completed, the second directive is no longer applicable. The driver’s statutory obligation then reverts to complying with the single lane rule while traveling in the new lane. The legislature did not make safety a consideration with regard to the single lane rule. Pointedly, it explicitly conditioned compliance on practicability. Grafting the second directive’s safety condition upon the first directive’s single lane rule would require us to rewrite the statute. See State v. McElroy, 281 Kan. 256, 262, 130 P.3d 100 (2006) (court should not add something that is not readily found in the statute or eliminate that which is readily found therein). Moreover, a driver should not be permitted to ascertain the safety of moving from a single lane and then proceed down the roadway astraddle a marker line in the new lane. Therefore, we find no support in the statute for conditioning a violation of the single lane rule upon proof that driving outside the lane markers was unsafe.
Perhaps by pointing out that the “as nearly as practicable” language in the statute “connotes something less than the absolute,” 37 Kan. App. 2d at 129, Ross was suggesting that the admonition to drive entirely within a single lane was precatory, i.e., a suggestion on the better practice. That notion is refuted by the statute’s affirmative assertion that a vehicle shall be driven within a single lane. The language indicates an intention to define a “rule of the road,” telling a driver where his or her vehicle must be placed when traveling upon a marked roadway. An interpretation of K.S.A. 8-1522(a) that requires proof of the second directive governing lane changes in order to find a violation of the first directive governing how to drive down a laned roadway would effectively eviscerate the single lane rule. See Walker, 280 Kan. at 523 (courts presume legislature does not intend to enact useless or meaningless legislation).
To summarize, we interpret K.S.A. 8-1522(a) as estabhshing two separate rules of the road. The first requires a driver to keep entirely within a single lane while traveling on a roadway with two or more clearly marked lanes. That rule is temporarily suspended when it becomes impracticable to stay within the lane markers and when the driver is properly effecting a lane change. Proof that driving outside the lane markers created no safety hazard is not a defense to the single lane rule. The second rule provides that before a driver may change lanes or move from the current lane of travel to another location, he or she must ascertain that the movement can be made with safety. A traffic infraction occurs under K.S.A. 8-1522(a) when either rule of the road is violated.
Having set forth what constitutes a traffic infraction under K.S.A. 8-1522, we turn to the question of whether Deputy Doudican articulated specific facts which would support a reasonable suspicion that Desiree Marx had committed such an infraction. Like the Court of Appeals below, we will restrict our analysis to the single lane rule. The State presented no evidence to establish that the officer had reasonable suspicion that Desiree was attempting to change lanes or move from her chosen lane of travel. Moreover, as documented in the district court’s findings, the State presented nothing from which the court could determine that the officer had reasonable suspicion that the driver failed to ascertain that a lane change could not be made safely.
As part of its decision, the Marx panel declared that crossing the fog fine, overcorrecting, and crossing the centerline is an “inherently unsafe maneuver.” 38 Kan. App. 2d at 607. As we have noted, the statute does not make safety a part of the equation for determining a violation of the single lane rule. Further, the panel held that the district court erred “as a matter of law” in finding an absence of reasonable suspicion. 38 Kan. App. 2d at 608. We do not believe such a rigid rule of law is consistent with the analysis required to determine reasonable suspicion.
K.S.A. 8-1522(a) is not a strict liability offense. See State v. Lewis, 263 Kan. 843, 857, 953 P.2d 1016 (1998) (K.S.A. 21-3204 limits strict liability crimes to those situations where legislature has clearly indicated an intention to dispense with criminal intent). The express language employed — “as nearly as practicable” — contradicts the notion that any and all intrusions upon the marker lines of the chosen travel lane constitute a violation. As indicated in both Ross and Marx, one can conjure up a number of scenarios where maintaining the integrity of die lane dividing lines is impracticable, e.g., weather conditions or obstacles in the roadway. However, the statute even dilutes the practicability standard. It does not say “when practicable” a vehicle will be driven entirely within a single lane. It only requires compliance with the single lane rule as nearly as practicable, i.e., compliance that is close to that which is feasible. That statutory language tells us that a violation of K.S.A. 8-1522(a) requires more than an incidental and minimal lane breach.
Accordingly, contrary to the Marx panel’s suggestion that the deputy’s testimony that he observed the motor home cross the fog line overcorrect, and cross the centerline ended the reasonable suspicion inquiry in the State’s favor, a detaining officer must articulate something more than an observation of one instance of a momentary lane breach. Although the panel acknowledged that the State bears the overall burden of proving the lawfulness of the seizure, it said that it was the Marxes’ responsibility to provide evidence of any “special circumstance,” such as an obstacle in the road, which would make keeping within a single lane impracticable. Marx, 38 Kan. App. 2d at 608. It opined that the State is not required to prove a negative.
Ironically, that burden-shifting contradicts the panel’s subsequent observation that even if Desiree had presented proof of “a legitimate defense for moving from her lane of traffic, such as to avoid an obstacle in the road, this would not invalidate the stop as long as Doudican reasonably believed in good faith that a traffic violation had occurred.” 38 Kan. App. 2d at 609. That declaration recognizes that, in determining reasonable suspicion, the focus was on what Deputy Doudican knew, when he knew it, and whether the known facts provided him with a reasonable and good faith belief that a traffic infraction had occurred. If, for example, the deputy knew of special circumstances making it impracticable to stay within the lane markers, but effected the stop anyway, his suspicion of a traffic infraction would not have been reasonable. The Marxes could not provide that testimony; only the deputy could relate what he knew and what he believed. Clearly, then, the deputy’s objectively reasonable belief is part and parcel of the State’s burden to prove that the governmental intrusion was warranted. Here, the State failed to carry its burden.
As the district court articulated at the suppression hearing, the defendant’s vehicle was not weaving back and forth time and time again, but rather the deputy only observed one instance where the motor home did not maintain a single lane. Further, the court found that no testimony was offered as to how far the motor home crossed either the fog fine or the centerline. The court noted that the deputy had shared no information about the traffic conditions. We would also observe that the deputy gave no testimony from which the court could even infer that it was practicable to maintain a single lane. Besides relating the path the motor home traveled, the only thing the deputy related was that Desiree told him the motor home was “hard to drive.” Accordingly, from the record before us, we determine that the State failed to carry its burden of establishing that Deputy Doudican had a reasonable suspicion that the motor home was violating the provisions of K.S.A. 8-1522(a). The district court’s suppression of the evidence is affirmed.
Affirmed in part and reversed in part.
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The opinion of the court was delivered by
McFarland, J.:
This is an appeal by the State upon a question reserved as authorized by K.S.A. 22-3602(b)(3). At issue is the propriety of a district court ruling that K.S.A. 1986 Supp. 8-1001(g) does not permit a law enforcement officer to obtain a search warrant for a blood sample of a person arrested for driving under the influence of alcohol (K.S.A. 1986 Supp. 8-1567) over the person’s refusal to submit to alcohol concentration testing.
The facts are not in dispute and may be summarized as follows. On July 14, 1986, Jerry A. Adee was arrested in Abilene for driving under the influence of alcohol in violation of K.S.A. 1986 Supp. 8-1567.
The arresting officer, Officer Ira R. Duer of the Abilene Police Department, requested Adee to take a breath test to determine the alcohol concentration of his blood. Adee refused. After Adee’s refusal, Officer Duer obtained a search warrant from District Magistrate Judge James W. Davis. Adee was taken to an Abilene hospital for the purpose of the execution of the warrant — namely, the obtaining of a blood sample from Adee. At the hospital, Officer Duer handed a copy of the warrant to Adee and requested Adee’s cooperation. Adee refused. There was no further effort to execute the search warrant. Adee was charged with the additional count of obstructing legal process in violation of K.S.A. 21-3808.
On August 13, 1986, defendant was tried before District Magistrate James W. Davis on the charges of driving under the influence of alcohol and obstructing legal process. Adee was found guilty on both counts. On October 15, 1986, Adee was sentenced. For the DUI offense, he received a six-month sentence, suspended except for the statutory 48-hour incarceration (K.S.A. 1986 Supp. 8-1567[d]); a $200 fine; an assessment of $28 court costs; driver’s license suspension for six months; and a supervised probationary period of one year. For the obstructing legal process offense, Adee was sentenced to one year in jail, suspended except for 30 days, to be served pursuant to a work release program. Defendant appealed from both convictions.
On November 25, 1986, defendant withdrew his appeal from the DUI conviction. On January 20,1987, District Judge John F. Christner found Adee not guilty of the charge of obstructing legal process, ruling that a search warrant could not be obtained under K.S.A. 1986 Supp. 8-1001(g) to obtain a sample of defendant’s blood over his refusal to submit to alcohol concentration testing. The State appeals from this determination upon a question reserved.
It has long been the rule of this court that questions reserved by the State in a criminal prosecution will not be entertained on appeal merely to demonstrate whether or not error has been committed by the trial court in its rulings adverse to the State. State v. Willcox, 240 Kan. 310, Syl. ¶ 1, 729 P.2d 451 (1986); State v. Holland, 236 Kan. 840, Syl. ¶ 1, 696 P.2d 401 (1985); State v. Glaze, 200 Kan. 324, Syl. ¶ 1, 436 P.2d 377 (1968). Appeals on questions reserved by the State have been generally accepted where they involve questions of statewide interest important to the correct and uniform administration of the crim inal law. State v. Glaze, 220 Kan. at 325. As we noted in State v. Holland, recently enacted statutes which have not previously been before this court are appropriate subjects of questions reserved. 236 Kan. at 841. The matter herein, involving a subsection of our implied consent statute on testing for alcohol concentration, has not previously been before this court.
K.S.A. 1986 Supp. 8-1001 provides:
“(a) Any person who operates or attempts to operate a motor vehicle within this state is deemed to have given consent, subject to the provisions of this act, to submit to one or more tests of the person’s blood, breath, urine or other bodily substance to determine the presence of alcohol or drugs. The testing deemed consented to herein shall include all quantitative and qualitative tests for alcohol and drugs. A person who is dead or unconscious shall be deemed not to have withdrawn the person’s consent to such test or tests, which shall be administered in the manner provided by this section.
“(b) A law enforcement officer shall request a person to submit to a test or tests deemed consented to under subsection (a) if the officer has reasonable grounds to believe the person was operating or attempting to operate a motor vehicle while under the influence of alcohol or drugs, or both, and one of the following conditions exists: (1) The person has been arrested or otherwise taken into custody for any offense involving operation or attempted operation of a motor vehicle while under the influence of alcohol or drugs, or both, in violation of a state statute or a city ordinance; or (2) the person has been involved in a motor vehicle accident or collision resulting in property damage, personal injury or death. The law enforcement officer directing administration of the test or tests may act on personal knowledge or on the basis of the collective information available to law enforcement officers involved in the accident investigation or arrest.
“(c) If a law enforcement officer requests a person to submit to a test of blood under this section, the withdrawal of blood at the direction of the officer may be performed only by: (1) A person licensed to practice medicine and surgery or a person acting under the supervision of any such licensed person; (2) a registered nurse or a licensed practical nurse; or (3) any qualified medical technician. When presented with a written statement by a law enforcement officer directing blood to be withdrawn from a person who has tentatively agreed to allow the withdrawal of blood under this section, the person authorized herein to withdraw blood and the medical care facility where blood is withdrawn may rely on such a statement as evidence that the person has consented to the medical procedure used and shall not require the person to sign any additional consent or waiver form. In such a case, the person authorized to withdraw blood and the medical care facility shall not be liable in any action alleging lack of consent or lack of informed consent. No person authorized by this subsection to withdraw blood, nor any person assisting in the performance of a blood test nor any medical care facility where blood is withdrawn or tested that has been directed by any law enforcement officer to withdraw or test blood, shall be liable in any civil or criminal action when the act is performed in a reasonable manner according to generally accepted medical practices in the community where performed.
“(d) If there are reasonable grounds to believe that there is impairment by a drug which is not subject to detection by the blood or breath test used, a urine test may be required. If a law enforcement officer requests a person to submit to a test of urine under this section, the collection of the urine sample shall be supervised by persons of the same sex as the person being tested and shall be conducted out of the view of any person other than the persons supervising the collection of the sample and the person being tested, unless the right to privacy is waived by the person being tested. The results of qualitative testing for drug presence shall be admissible in evidence and questions of accuracy or reliability shall go to the weight rather than the admissibility of the evidence.
“(e) No law enforcement officer who is acting in accordance with this section shall be liable in any civil or criminal proceeding involving the action.
“(f)(1) Before a test or tests are administered under this section, the person shall be given oral and written notice that: (A) There is no right to consult with an attorney regarding whether to submit to testing; (B) refusal to submit to and complete any test of breath, blood or urine hereafter requested by a law enforcement officer will result in six months’ suspension of the person’s driver’s license; (C) refusal to submit to testing may be used against the person at any trial on a charge arising out of the operation or attempted operation of a motor vehicle while under the influence of alcohol or drugs, or both; (D) the results of the testing may be used against the person at any trial on a charge arising out of the operation or attempted operation of a motor vehicle while under the influence of alcohol or drugs, or both; and (E) after the completion of the testing, the person has the right to consult with an attorney and may secure additional testing, which, if desired, should be done as soon as possible and is customarily available from medical care facilities and physicians. After giving the foregoing information, a law enforcement officer shall request the person to submit to testing. The selection of the test or tests shall be made by the officer. If the person refuses to submit to and complete a test as requested pursuant to this section, additional testing shall not be given and the person’s driver’s license shall be subject to suspension as provided in K.S.A. 8-1002 and amendments thereto. The person’s refusal shall be admissible in evidence against the person at any trial on a charge arising out of the alleged operation or attempted operation of a motor vehicle while under the influence of alcohol or drugs, or both.
“(2) Failure of a person to provide an adequate breath sample or samples as directed shall constitute a refusal unless the person shows that the failure was due to physical inability caused by a medical condition unrelated to any ingested alcohol or drags.
“(3) It shall not be a defense that the person did not understand the written or oral notice required by this section.
“(g) Nothing in this section shall be construed to limit the admissibility at any trial of alcohol or drug concentration testing results obtained pursuant to a search warrant.
“(h) Upon the request of any person submitting to testing under this section, a report of the results of the testing shall be made available to such person.” (Emphasis supplied.)
The State argues that the enactment of K.S.A. 1986 Supp. 8-1001(g) modified existing Kansas law by permitting the issuance of search warrants for blood samples from persons arrested for DUI who have refused alcohol concentration testing pursuant to K.S.A. 1986 Supp. 8-1001(f). We do not agree.
At this point, the applicable rules of statutory construction should be stated. The fundamental rule of statutory construction is that the purpose and intent of the legislature governs when the intent can be ascertained from the statute. In construing statutes, the legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. Harris Enterprises, Inc. v. Moore, 241 Kan. 59, Syl. ¶ 1, 734 P.2d 1083 (1987); State v. Cole, 238 Kan. 370, 371-72, 710 P.2d 25 (1985). When the legislature revises an existing law, as here, it is presumed that the legislature intended to make some change in the law as it existed prior to the amendment. Curless v. Board of County Commissioners, 197 Kan. 580, 587, 419 P.2d 876 (1966). Where a statute is designed to protect the public, the language must be construed in the light of the legislative intent and purpose and is entitled to broad interpretation so that its public purpose may be fully carried out. Johnson v. Killion, 178 Kan. 154, Syl. ¶ 4, 283 P.2d 433 (1955). A construction which renders part of a legislative act surplusage is to be avoided if reasonably possible. American Fidelity Ins. Co. v. Employers Mut. Cas. Co., 3 Kan. App. 2d 245, Syl. ¶ 4, 593 P.2d 14 (1979).
The Kansas implied consent law (K.S.A. 1986 Supp. 8-1001) is premised, like those of the other states, on the theory that anyone who operates a motor vehicle upon public highways consents in advance to submission to a chemical test in order to determine the amount of alcohol in the driver’s blood. See Note, The New Kansas DUI Law: Constitutional Issues and Practical Problems, 22 Washburn L.J. 340, 345 (1983) (prior consent to submit to chemical test the central feature of implied consent in all 50 states). The statute permits a driver to refuse to submit to the test. A refusal, however, triggers two-fold State action: temporary suspension of the driver’s license, and admission of the refusal in evidence against the driver at any ensuing trial stemming from the alleged DUI incident. K.S.A. 1986 Supp. 8-1001(f).
The landmark constitutional analysis relative to blood testing was handed down in Schmerber v. California, 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966). In Schmerber, the issue was the reasonableness of a compelled blood test to prove intoxication. The accused was arrested for driving while intoxicated and, on advice of counsel, refused to submit to the test. Without a warrant, a police officer directed hospital personnel treating the driver to take a blood sample, over the driver’s protests. The test results were used to convict him. The Supreme Court rejected his due process Fourth and Fifth Amendments claims, concluding that the compelled blood test was a minor intrusion into the body, the procedure was routine and conducted by qualified persons without risk, and the evidence was relevant. 384 U.S. at 769-71. The court went on to hold that the warrantless “search” by way of the blood sample “was an appropriate incident to petitioner’s arrest.” 384 U.S. at 771. While ruling that exigent circumstances justified the warrantless “search,” the court’s comfort level would have been elevated had a search warrant been obtained. The court said:
“Although the facts which established probable cause to arrest in this case also suggested the required relevance and likely success of a test of petitioner’s blood for alcohol, the question remains whether the arresting officer was permitted to draw these inferences himself, or was required instead to procure a warrant before proceeding with the test. Search warrants are ordinarily required for searches of dwellings, and, absent an emergency, no less could be required where intrusions into the human body are concerned. The requirement that a warrant be obtained is a requirement that the inferences to support the search ‘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.’ [Citations omitted.] The importance of informed, detached and deliberate determinations of the issue whether or not to invade another’s body in search of evidence of guilt is indisputable and great.” 384 U.S. at 770.
In State v. Brunner, 211 Kan. 596, 602-03, 507 P.2d 233 (1973), we held that a compulsory blood alcohol concentration test for a person arrested for DUI was constitutionally permissible but statutorily prohibited.
The statutory prohibition to compelled blood testing is found in K.S.A. 1986 Supp. 8-1001(f)(l)(E): “If the person refuses to submit to ... a test as requested . . . additional testing shall not be given.” This provision is not construed to be a right of refusal but, rather, it was included in the statute “as a means to avoid the violence which would often attend forcible tests upon a rebellious drunk.” State v. Garner, 227 Kan. 566, 571-72, 608 P.2d 1321 (1980). The statute was enacted to combat the increasing problem of drunk driving. State v. Garner, 227 Kan. at 571. Toward that end, the statute establishes the basic principle that a driver impliedly agrees to submit to a test in return for the privilege of using our public highways. If the driver withdraws that consent by refusing an appropriate test, the statute allows the State to withdraw, temporarily, the drivers privilege of using our public highways. K.S.A. 1986 Supp. 8-1002. In State v. Bristor, 236 Kan. 313, 319, 691 P.2d 1 (1984), we said:
“The very purpose of the implied consent law (K.S.A. 8-1001) is to coerce a motorist suspected of driving under the influence to ‘consent’ to chemical testing, thereby allowing scientific evidence of his blood alcohol content to be used against him in a subsequent prosecution for that offense. Prideaux v. State, Dept. of Public Safety, 310 Minn. at 409-10. For drivers who refuse, the purpose of the statute is to provide an effective means short of physical force to overcome the refusal. State v. Garner, 227 Kan. 566, 571-72, 608 P.2d 1321 (1980). The nonphysical means consist of the statutory penalities of license revocation and the admission into evidence in a DUI proceeding of the fact of the refusal. K.S.A. 8-1001(c). Under Standish [v. Department of Revenue, 235 Kan. 900, 683 P.2d 1276 (1984)], the arrested defendant is to be informed of these consequences. This is a departure from our earliest cases. See, e.g., Hazlett v. Motor Vehicle Department, 195 Kan. 439, 442, 407 P.2d 551 (1965); City of Shawnee v. Gruss, 2 Kan. App. 2d 131, 134, 576 P.2d 239, rev. denied 224 Kan. 843 (1978). Thus, the consent envisioned by the statute is to be implied and if submission is not forthcoming it is to be coerced by knowledge and fear of adverse consequences.”
In summary, then, prior to the enactment of K.S.A. 1986 Supp. 8-1001(g), a person arrested for DUI who refused alcohol concentration testing could not be compelled to provide a test sample. Did the enactment of K.S.A. 1986 Supp. 8-1001(g) change this prohibition? We believe not. K.S.A. 1986 Supp. 8-1001(g) is iterated at this point for convenience as follows:
“(g) Nothing in this section shall be construed to limit the admissibility at any trial of alcohol or drug concentration testing results obtained pursuant to a search warrant.”
The statute speaks only of admissibility at trial of test results obtained by a search warrant. It is significant to look at Senate Bill 127 (1985) relevant to (g) as originally introduced, which provided:
“(g) Nothing in this section shall be construed to limit the admissibility at any trial of alcohol or drug concentration testing results obtained pursuant to a search warrant. A search warrant permitting alcohol or drug concentration testing may be issued only upon a showing that a law enforcement officer has probable cause to believe the person was operating a motor vehicle while under the influence of alcohol or drugs and the motor vehicle was involved in an accident resulting in death or serious personal injury likely to result in death.” See SB 127, as Amended by Senate Committee of The Whole, and House Federal and State Affairs Committee, at 7.
All but the first sentence of (g) was deleted prior to passage. Clearly, had the bill, as introduced, been enacted, then search warrants would have been permissible when the conditions set forth therein had been met. Yet the Legislature, for reasons not contained in legislative records, chose to enact only the lead-in sentence of (g) which, by itself, does not authorize the issuance of search warrants for DUI suspects. We believe that the intention of subsection (g) as enacted was not to change existing law as to the prohibition against the issuance of search warrants for DUI suspects refusing alcohol concentration testing, but rather to clarify that nothing in the implied consent statute (K.S.A. 1986 Supp. 8-1001) rendered alcohol concentration test results from search warrants issued under some other authority inadmissible in DUI trials. Conceivably, a search warrant for a blood sample could be issued for a suspect of some crime other than DUI. If so, and the results were relevant to a DUI charge against the same individual, then (g) states that nothing in the implied consent statute (K.S.A. 1986 Supp. 8-1001) renders such results inadmissible in the DUI trial.
The State argues that (g), as enacted, is patterned after an Iowa statute (Iowa Code Ann. § 321B.14 [West 1985]) which permits blood samples to be taken pursuant to a search warrant when consent is refused under Iowa’s implied consent statute. This argument is not persuasive. The Iowa statute is complex legislation specifying in detail the conditions and manner of securing such a warrant. There is nothing in the record indicating any legislative intent by Kansas to replicate the Iowa statute in subsection (g) of K.S.A. 1986 Supp. 8-1001.
The conclusion we have reached, that K.S.A. 1986 Supp. 8-1001(g) does not permit the issuance of search warrants for blood samples from persons refusing testing pursuant to K.S.A. 1986 Supp. 8-1001(f), is consistent with the result reached by the Attorney General in Att’y Gen. Op. No. 86-148, involving a related question.
The appeal on the question reserved is denied.
Lockett, J., dissenting. | [
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|
The opinion of the court was delivered by
Robb, J.:
This is an original proceeding in mandamus to compel the board of county commissioners of Morton county to proclaim Elkhart to be the county seat pursuant to an election held on January 24, 1961.
Since there is no dispute in regard to the holding of the election, the issuance of the alternative writ by this court, or the defendants’ return in response thereto, we shall refer only to such parts thereof as are necessary for determination of the issue before us.
Did 449 “no” votes cast in opposition to 1,060 “yes” votes result in a sufficient plurality to relocate the county seat of Morton county from Richfield to Elkhart? The board, by a vote of two to one, concluded the plurality was not sufficient and ordered the county seat to remain at Richfield. Hence this application for a writ of mandamus, and for costs, and attorney fees on the grounds that the board’s finding, proclamation and order that the county seat remain at Richfield was illegal, arbitrary, capricious, without foundation in fact or in law and therefore void.
It is admitted the population of Morton county is 3,317; that the register of electors eligible to vote under G. S. 1949, 19-1613 and 19-1614 consisted of 1,873 names and the number of legal electors of Morton county was 1,873. The record shows, and it is admitted that, on January 28, 1961, defendants canvassed the vote of the special election held on January 24, 1961, and found:
“(1) That there were 1060 relocation ballots marked yes’ and 449 relocation ballots marked ‘no’.”
However, on January 30, 1961, the board concluded the foregoing was not a sufficient vote of the legal electors of Morton county to relocate the county seat.
This is the fifth occasion in the last thirty-six years the dispute over the relocation of the Morton county seat has been before this court. The four previous cases were: State, ex rel., v. Russell, 119 Kan. 266, 237 Pac. 877, (1925); State v. Morton County Comm’rs, 121 Kan. 191, 246 Pac. 504, (1926); Dunn v. Morton County Comm’rs, 162 Kan. 449, 177 P. 2d 207, (1947); Dunn v. Board of County Comm’rs of Morton County, 165 Kan. 314, 194 P. 2d 924, (1948).
The constitution of the state of Kansas, article 9, section 1, reads:
“The legislature shall provide for organizing new counties, locating county seats, and changing county lines; but no county seat shall be changed without the consent of a majority of the electors of the county. . . .”
The pertinent portion of G. S. 1949, 19-1602 which governs the relocation of the county seat of any county with the population of Morton county reads:
“. . . Provided further, That in any county having a population of not less than three thousand nor more than thirty-four hundred and fifty people, according to the last preceding census taken by the several assessors of said county, tire board of county commissioners shall, upon the petition of one-half of the legal electors of such county, order an election for the relocation of the county seat of any such county, and it shall require a majority of three-fifths of the votes of legal electors cast at such election to relocate the county seat thereof, and to move it from such place. . . .”
In the Russell case, supra, the identical proviso of the statute (then Chap. 134, § 1, Laws of 1925) was applicable to Morton county because its population was between 3,000 and 3,450. The decision of this court was that the statute was general and therefore constitutional so far as it concerned section 17, article 2, of the state constitution (syl. ¶1) and the court directed the proper assessment rolls which the county commissioners should use in determining and verifying the sufficiency of the petitions therein concerned.
In State v. Morton County Comm’rs, supra, upon the report of a commissioner appointed by this court, the writ of mandamus sought in the Russell case was allowed, and the county commissioners were thereby directed to hold the election.
The first Dunn case, supra, was an appeal in an injunction action to enjoin an election to relocate the Morton county seat and this court merely decided the plaintiff therein did not possess the requisite legal capacity to bring the action and directed the trial court accordingly.
The second Dunn case, supra, was another appeal in an injunction action to enjoin the removal of the Morton county seat from Rich-field to Elkhart but a difference of population, as was true in the first Dunn case, invoked the application of that part of G. S. 1949, 19-1602 which, in substance, states that in counties having more than 2,000 population with at least $10,000 of county buildings at a county seat that has been the county seat for eight or more consecutive years,
“. . . it shall require a vote of three-fifths of the legal electors of such county to relocate the county seat and to remove it from such place. . . (Our emphasis.)
Under this statute the court in the second Dunn case held that the words “legal electors” meant persons entitled to vote, and three-fifths of the valid votes cast was not sufficient to carry a proposal to relocate the county seat unless it was also three-fifths of the legal electors.
The second Dunn case contains a complete analysis and explanation of how the register which reflects the number of legal electors is established and any interested reader is referred to that opinion, which, in part, stated:
“Appellants contend that it is sufficient if three-fifths of the votes lawfully cast favor the proposition. Under that view the meaning of the statute would be construed as though it read ‘three-fifths of the votes lawfully cast.’ But the statute says ‘three-fifths of the legal electors of the county.’ ” (p. 323.)
The same opinion further stated:
“Under the findings hereinafter noted either by the board which ordered removal, or by the trial court which enjoined removal of the county seat, appellants can prevail only by a construction of the statute which makes three-fifths of the votes cast equivalent to three-fifths of the legal electors of the county. We cannot adopt that construction.” (p. 326.)
The statutory provision applicable here differs from the one that controlled the second Dunn case by reason of a change in the population of Morton county so that the majority of three-fifths of the votes of legal electors cast at such special election was sufficient to relocate the county seat and remove it to Elkhart from Richfield. We are mindful of defendants’ contention that while our present facts and circumstances do not present a situation where three-fifths of the votes cast contravenes the provision of article 9, section 1, of our state constitution referring to the consent of a majority, there might arise a set of facts and circumstances which would cause this provision of 19-1602 to be unconstitutional because the number required under such interpretation might be less than a majority of the legal electors; that we should herein apply the interpretation that three-fifths means fhree-fiflhs of the legal electors of such county, and not three-fifths of the votes of legal electors cast at such election. To follow this suggestion based on such speculative circumstances would require us to ignore the word cast and this, of course, we cannot do. We need not prolong this opinion with a lengthy discourse on the presumption of constitutionality of a statute but in this connection see State, ex rel., v. School District, 163 Kan. 650, 661, 185 P. 2d 677, where the rule is restated thus:
“Constitutionality of a statute is presumed. If its language is ambiguous, it is to be interpreted as constitutional rather than as unconstitutional.” (Syl. ¶ 4.)
We have examined other contentions, arguments and authorities presented by the parties but think it is unnecessary to determine them in view of what has heretofore been said. The request for attorney fees is denied.
Summarizing, we conclude the 1,060 “yes” votes cast by the legal electors to relocate the county seat of Morton county and remove it to Elkhart from Richfield was in excess of a simple majority of the legal electors and was also in excess of a three-fifths majority of the legal electors who cast votes at the election. This compels the issu anee of the peremptory writ sought by plaintiff and a direction to the defendants to remove the county seat from Richfield, Kansas, to Elkhart, Kansas. (G. S. 1949,19-1609.)
The writ is allowed. | [
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|
The opinion of the court was delivered by
Wertz J.:
LaVern J. Huber, plaintiff (appellee),- brought this action against Arthur H., Edna May, Orville, Robert and Norman Schmidt, and Mary M. and Ennis C. Whitehead, defendants (appellants), under the declaratory judgment act (G. S. 1949, 60-3127 et seq.), for the purpose of obtaining a judicial determination of the rights of the respective riparian property owners to the use and flow of the water in Sand Creek in Harvey county.
No useful purpose would be served in detailing the allegations of plaintiff's petition as amended. Briefly, plaintiff alleged in substance that he is an owner of land abutting Sand Creek in Harvey county; that defendants are the owners or tenants of certain described land abutting the same creek, and that he, for many years, used the normal flow of Sand Creek for domestic purposes and enjoyed the benefits of the flow generally; that defendants installed pumps and irrigation systems upon their respective lands, as well as other installations in, on or along Sand Creek, whereby they impaired the flow of the creek; that they withdrew and are withdrawing large quantities of water from Sand Creek, with the result that the flow was either entirely stopped or so materially impaired as to render the same unsuitable or impossible to use for domestic purposes, or to otherwise enjoy the benefits arising from such flow.
Plaintiff further alleged that an actual controversy exists between himself and defendants, and that he is, and claims to be, a riparian owner with respect to Sand Creek, and, as such, is entitled to the reasonable use of the creek and the waters thereof, and that the defendants claim and contend they have a right to impair, withdraw or otherwise affect the flow of Sand Creek as they see fit, including the right to use the full flow thereof.
Plaintiff asked for a declaratory judgment declaring him a riparian owner with respect to Sand Creek and, as such, entitled to the reasonable use of the creek and the waters thereof, and declaring and adjudging that the defendants have no right to impair the flow of the creek or to withdraw water therefrom in such a manner as to impair or destroy his rights. Plaintiff also asked for such consequential relief as might be equitable.
The trial court held that the amended petition alleged an actual controversy between the parties, and overruled defendants’ demurrer thereto, from which order defendants appeal in case No. 41,887.
Answers were filed by the respective defendants denying the allegations of the petition as amended and further denying that they had materially impaired or entirely stopped the flow of Sand Creek, or had impaired the rights of any others, if such rights existed, to the flow of Sand Creek. Defendants alleged that they had installed pumps and irrigation systems on their lands and had withdrawn water from Sand Creek for irrigation purposes; that they hold certificates issued by the chief engineer of the division of water resources of the Kansas state board of agriculture, and that all water had been lawfully withdrawn and used by them under the terms of such certificates and the water appropriation act (G. S. .1949, 82a-701 et seq., as amended).
Plaintiff moved to strike the portions of defendants’ answers referring to the water appropriation act (G. S. 1949, 82a-701 et seq., as amended) for the reason that the same did not constitute a defense and the act is unconstitutional in specified respects. From an order sustaining the motions to strike, defendants appeal in case No. 42,015. These motions must be treated as demurrers to the stricken portions of the answers.
Defendants contend that the trial court erred in overruling their demurrer to the plaintiff’s petition as amended and in sustaining plaintiff’s demurrers striking certain alleged facts from defendants’ answers.
We have examined the petition, and its allegations make it clearly to appear there is an actual alleged controversy between the parties with respect to their rights to the use and flow of the water in Sand Creek.
A like examination of defendants’ answers reveals additional facts and contentions as understood by them. Defendants first assert that they have a right to take the water and use so much of it as necessary, and that they have an additional right granted by the chief engineer of the division of water resources under the provisions of the water appropriation act.
While a demurrer is rarely used in attacking a petition for a declaratory judgment, when a party elects to so employ a demurrer the test applied in determining the sufficiency of the pleading under attack is whether such pleading sets forth facts showing an actual controversy concerning some matter covered by the statute, G. S. 1949; 60-3127. If an actual controversy is alleged in a petition for a declaratory judgment, it is the duty of the district court to overrule the demurrer to the petition and proceed with the cause in accordance with the provisions of the act. (State Association of Chiropractors v. Anderson, 186 Kan. 130, 348 P. 2d 1042; McAdam v. Western Casualty & Surety Co., 186 Kan. 505, 351 P. 2d 202; Bodle v. Balch, 185 Kan. 711, 347 P. 2d 378; Simmons v. Reynolds, 179 Kan. 785, 298 P. 2d 345; Stalnaker v. McCorgary, 170 Kan. 9, 223 P. 2d 738; Hyde Bark Dairies v. City of Newton, 167 Kan. 730, 208 P. 2d 221.)
The same rule is applicable to a demurrer to the defendant’s answer which sets forth additional facts showing an actual controversy concerning the matter covered by the statute.
We have said many times that when the petition states facts out of which the controversy arose and states clearly the views or claim of plaintiff, as well as the views or claim of defendant, and the court is asked to adjudicate the controversy, the appropriate pleading to be filed by defendant is an answer admitting that the controversy arose from the facts stated by plaintiff and that plaintiff’s contentions were correctly stated, providing defendant agrees to the matters so pleaded. If defendant thinks the facts giving rise to the controversy or the contentions of the plaintiff or of the defendant are not accurately and fully stated, defendant should answer and plead the facts and contentions as he understands them. If defendant pleads facts or contentions contrary to those pleaded by plaintiff, plaintiff, by reply, should either admit or deny the contrary facts or contentions. In other words, the only pleadings permissible in a declaratory judgment action are the petition, the demurrer, if the petition fails to state an actual controversy, an answer and a reply. Normally, a declaratory judgment action is not well suited to a case in which there is a con troversy regarding how the contentions of the parties arose or what the contentions are. These matters should be agreed upon in the pleadings, or some other action should be brought. (McAdam v. Western Casualty & Surety Co., supra, p. 506, and cases cited therein.)
In the instant case we cannot treat plaintiff’s motions to strike as replies, and, consequently, issues have not been joined by the parties. These parties, both in the lower court and in this court, seek to enlarge the scope of the declaratory judgment act by attempting in advance of joining issues to have decided a portion of the merits of a case and to have prejudged matters which might or might not become material in determining the propriety or justice of tire relief sought when issues are joined and the trial is had. It was the legislative intent that the act be liberally interpreted and administered with a view to making the courts more serviceable to the people (G. S. 1949, 60-3132; State Association of Chiropractors v. Anderson, supra, p. 135). The very purpose of the declaratory judgment act is to get the parties to agree upon the facts and to properly and speedily present the facts in an orderly fashion to the trial court for an early and final decision, thus avoiding any attempt to try the case by piecemeal.
Defendants’ demurrer to plaintiff’s petition served no function in this action and was properly overruled. Plaintiff’s motions to strike, treated as demurrers, served no function and were improperly sustained by the trial court. The other questions raised by the parties are premature. The judgment of the trial court is affirmed in case No. 41,887; it is reversed in case No. 42,015, and the case is remanded with instructions to reinstate the stricken portions of defendants’ answers, affording plaintiff an opportunity to reply if he so desires, and proceed with the trial in accordance with G. S. 1949, 60-3127 et seq.
It is so ordered. | [
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|
The opinion of the court was delivered by
Parker, C. J.:
Plaintiff Art S. Walz, a resident of Goodland, commenced this action on April 21, 1958, against defendant A. R. Tompkins, a resident of the same city, by filing a petition in the district court of Sherman County to recover an amount claimed to be due him, upon an alleged mutual running account covering innumerable transactions beginning in August, 1942, and continuing without interruption until May, 1956, for sod breaking performed by plaintiff while a tenant on land owned by the defendant during a period from 1942 until sometime in 1947. A. R. Tompkins died soon after commencement of the action and it was later revived in the name of Hoyt Tompkins, as executor of his estate.
After joinder of issues, by pleadings not here in question, the cause was tried without a jury by the court which announced its decision in a Memorandum Opinion wherein it made findings of fact and conclusions of law; and then rendered judgment accordingly.
The Memorandum Opinion serves a threefold purpose in that it discloses the issues on which the case was tried, the trial court’s findings of fact and its conclusions based on its findings. Therefore such opinion will be quoted at length. It reads:
“Memorandum Opinion
“This is a case in which the Plaintiff filed suit against the Defendant, A. R. Tompkins, and later revived it as against the Administrator. The case was tried in full to the Court.
The Plaintiff alleged and introduced evidence to establish a mutual running account between the parties, Art Walz and A. R. Tompkins. The Defendant denied the existence of a mutual running account and claimed a full settlement of all matters between the parties. The matter was submitted to the Court and taken under advisement, and briefs were furnished to the Court by both parties.
“Findings of Fact
“1. The Plaintiff was unable to establish a mutual running account as between Art Walz and A. R. Tompkins. The Court finds that there was no mutual running account.
“2. The Plaintiff was unable to establish that any agreement was made that A. R. Tompkins, the deceased, was to pay the Plaintiff for sod breaking.
“3. In May of 1956 the parties effected a full and complete settlement and agreement which was executed on May 21, 1956, and the Plaintiff released A. R. Tompkins from all liability.
“Conclusion
“Because of the nature of the above Findings of Fact no Conclusions of Law are necessary. However, it might be added that in view of the Finding No. 1, that all items of sod breaking would be barred by the Statutes of Limitations since the last sod breaking claimed was done in 1947.
“Based upon the above Findings and Conclusions, Judgment shall be entered for the Defendant on the 9th day of February 1960, and the costs assessed to the Plaintiff.”
Following rendition of judgment for the defendant plaintiff filed a motion for a new trial, based on all grounds recognized by statute (G. S. 1949, 60-3001); a motion to set aside the findings, based on grounds that all such findings were contrary to the evidence; and a motion to substitute findings in line with his theory of the case. When these motions were overruled he perfected the instant appeal.
It will add nothing to the body of our law and of a certainty merely burden our reports to here labor the lengthy and somewhat tortured arguments made by counsel for the parties in connection with the appellate issues involved in this case. It suffices to say that when carefully reviewed in the light of the pleadings, the evidence, the findings and conclusions of the trial court, and the contentions advanced by the parties in support of their respective positions with regard to the status of the judgment, all of which have been given careful consideration, we are convinced the instant record discloses this is pre-eminently a fact case where the trial court, on the basis of conflicting but nevertheless substantial competent evidence, resolved, as was its province, all controverted factual issues joined by the pleadings, including those asserted by plaintiff as grounds for relief, in favor of the defendant and against the plaintiff. In such a situation the rule, so well-established as to require no citation of the decisions supporting it, is that the findings and conclusions of the trial court with respect to such factual issues cannot be disturbed and the judgment rendered in accord therewith is proper. (See West’s Kansas Digest, Appeal & Error, §§ 1002, 1005; Hatcher’s Kansas Digest [Rev. Ed.], Appeal & Error, §§ 495, 496, 499.) In this connection, the controlling rule is stated in Dennis v. Smith, 186 Kan. 539, 352 P. 2d 405, which reads:
“. . . On this point, the controlling rule is well stated in Fine v. Neale Construction Co., 186 Kan. 537, 352 P. 2d 404, this day decided, where it was held:
“ Where findings of fact are attacked for insufficiency of evidence or as being contrary to the evidence, the supreme courts power begins and ends with the determination whether there is any competent substantial evidence to support them, and where findings are so supported they are accepted as true and will not be disturbed on appeal, and in such a case it is of no consequence that there may have been much contradictory evidence adduced at the trial which, if believed by the trial court, would have compelled entirely different findings of fact and an entirely different judgment.’ ” (p. 546.)
And so here, since it clearly appears that the findings and conclusions made by the trial court with respect to the factual issues raised by the pleadings are supported by substantial competent evidence and preclude plaintiff from obtaining the relief sought in his petition, the judgment based on such findings and conclusions must be upheld.
In the face of the confronting facts and circumstances we find nothing in the record, or in contentions advanced by the plaintiff, to warrant or justify a reversal of the judgment. Therefore it is hereby affirmed. | [
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|
The opinion of the court was delivered by
Schroeder, J.:
This is a criminal action in which the appellant was charged with burglary in the second degree and the commission of larceny in one count pursuant to the provisions of G. S. 1959 Supp., 21-520, and G. S. 1949, 21-524. He was tried, convicted and sentenced to a term of thirty years in the Kansas State Penitentiary under the provisions of G. S. 1949, 21-107a and 21-523. Appeal has been duly perfected from the conviction and sentence presenting the questions hereafter considered.
The facts giving rise to this action may be briefly summarized as follows;
Sometime between 11:00 p. m., on March 28,1960, and 9:00 a. m., on March 29, 1960, Vance’s Liquor Store in the city of Atchison, Kansas, was burglarized. Approximately $950 worth (wholesale value) of whiskies, gin, champagnes and other alcoholic beverages were taken from the shelves and store of Vance’s Liquor Store and, obviously, removed from the northwest window of the store. The glass had been broken from the window, and the outer weatherproof covering of glassine cloth had also been broken.
At 9:00 a. m., on March 29 an employee of the liquor store found much of the stolen merchandise on the ground outside of the northwest window when he arrived for work. Later in the morning the Atchison police department found much of the stolen alcoholic beverages cached approximately 270 feet west of Vance’s Liquor Store. All of the merchandise, found outside the northwest window of the store and that cached some 270 feet west of the store, was immediately taken into custody by the Atchison police department and there held until introduced as evidence at the trial of the appellant.
Refore discovery of the break-in on the 29th day of March, the appellant and two of his companions, Jerry Flatt and Donna Flatt, husband and wife, were apprehended and arrested on Skyway Highway (U. S. Highway No. 59) approximately one and one-half miles west of the Vance Liquor Store. Another companion, George A. Fountaine, was apprehended by the Atchison police department later at approximately 7:00 a. m., on the 29th day of March, 1960.
All evidence leading to the arrest of the appellant and his above named companions was circumstantial.
At 2:00 a. m., on March 29th the appellant and his three companions, George A. Fountaine, Jerry Flatt and Donna Flatt, drove into Rill Roe’s service station in Missouri, across the Mo-Kan bridge from Atchison, for water in their 1952 blue Cadillac automobile. The attendant, Roland Rusch, on duty at the station, specifically noticed the automobile had no license plate on it at this particular time. At the trial he so testified and identified the four persons as being together at this particular time at his station.
When the appellant and his companions left Rill Roe’s service station they drove east on U. S. Highway No. 59.' Approximately ten minutes later Roland Rusch observed the appellant and his other three companions headed in the opposite direction going west in the Cadillac. He observed them drive to the east approach of the Mo-Kan bridge and turn south where they turned off the lights of the Cadillac in the vicinity of John Dorsey’s house.
At approximately 2:30 a. m., Roland Rusch saw the lights of the appellant’s car go on and return to the highway headed west across the Mo-Kan bridge to the Kansas side.
At approximately 3:00 a. m., Mrs. Roland Rusch, proceeding in her automobile from the Kansas side to take her husband lunch at Rill Roe’s service station, followed behind the blue Cadillac in question which was going east slowly across the Mo-Kan bridge. She observed two occupants in the vehicle, one a blonde .in a red dress, and the other a male. Mrs. Busch continued to follow the Cadillac across the bridge, where it made a U-turn and headed back west across the Mo-Kan bridge to Kansas.
When Mrs. Busch arrived at the service station she discussed the matter with her husband, Roland Busch, who at 3:20 a. m., called the Atchison police department to report the activities of the appellant and his companions.
At approximately 3:35 a. m., the appellant, Donna Flatt and Jerry Flatt, were stopped by a police officer within the general area of Vance’s Liquor Store. The officer found the appellant had a Kansas driver’s license and a Missouri license plate on his automobile, whereupon he and his two companions were apprehended. The Atchison police immediately called the owner of the Missouri license plates, John Dorsey, who checked to find that his license plate, M-19-341, was missing from his 1954 automobile parked in front of his home on the Missouri side of the Mo-Kan bridge. John Dorsey then proceeded to the Atchison police station and saw his license plate on the blue Cadillac being driven by the appellant.
At the time of the appellant’s arrest a search was made of the Cadillac and tools suitable for use in burglaries were found by the police officers between the front and rear seats of the automobile.
After the burglary was discovered, a microscopic examination of clothing worn by the appellant and sweepings taken from the Cadillac automobile in question was made by the Kansas Bureau of Investigation. It revealed glassine particles, similar to the glassine material which had been broken on the northwest window of Vance’s Liquor Store, on the appellant’s cap, socks and trousers. Similar glassine particles were found in the sweepings taken from the back seat of the Cadillac automobile.
There was evidence that it was physically impossible for one person to remove the tremendous quantity of liquor from the inside of Vance’s Liquor Store through the northwest window, it being too high for one person to get the job done.
The appellant and his three companions were charged Jointly in one complaint upon which a warrant was issued and served. After preliminary hearing the appellant was bound over to the district court of Atchison County, Kansas, on or about the 7th day of September, 1960. Inasmuch as George A. Fountaine entered a plea of guilty and was sentenced separately, the informa tion upon which the appellant was charged omitted Fountaine as one of the joint defendants.
The appellant first contends the trial court erred in overruling his petition for change of venue on the ground that the district judge was disqualified to preside at the trial.
In his petition for change of venue the appellant sets forth Exhibit “A” filed in his case, which he calls “a joint statement of the Honorable Edmund L. Page and the County Attorney of Atchison County, Kansas,” contending that at the time the district judge filed the statement he had heard no evidence in the case whatsoever and was not fully apprised of the facts and circumstances surrounding the case. The statement filed by the judge contains the following:
“a. Even after his [George A. Fountaine’s] plea of guilty in the case, he has maintained that the other persons participating in the crime were innocent, not knowing that this jurisdiction has a scientific data which definitely connects and establishes the said confederates participation in his crime of burglary.
“b. The prisoner was a native of Topeka, Kansas, at the time of his apprehension. He was apprehended along with one Jerry R. Flatt, Donna Flatt and Lee Hendrix. These four individuals were professional burglars from Topeka and came to Atchison with the avowed purpose of cleaning out one of the local liquor stores of approximately $1,000.00 wholesale value, with the anticipated object of selling this whisky through illicit channels.”
The appellant’s petition for change of venue then recites:
“That the statements set out in Exhibit ‘A’ made by tire Honorable Edmund L. Page and filed in this case and made a part thereof are wholly unnecessary insofar as the duty of this court is concerned to advise the Kansas State Penitentiary relative to the background of George A. Fountaine and the text of Exhibit ‘A’ clearly demonstrates the court’s passion and prejudice in this case when considered with the rest of the file herein wherein George A. Fountaine was sentenced under the Habitual Criminal Act of the State of Kansas and notwithstanding said sentence, the court found it necessary to enter this joint statement, to further depricate George A. Fountaine and at tire same time vent his feeling insofar as this defendant is concerned.”
Filed with the petition was an affidavit of prejudice and bias signed by the appellant, and a further petition for an order disqualifying the district judge.
The petition for change of venue and for an order of disqualification was overruled. Thereupon the trial court granted the appellant’s motion for a separate trial.
Although repealed by the 1957 session of the legislature, the joint statement of facts of the district judge and the county attorney was filed pursuant to G. S. 1949, 62-1523, and was admittedly signed by the Hon. Edmund L. Page and the county attorney, Robert F. Duncan. (The joint statement was not before the jury at the appellant’s trial.)
The appellant contends, in view of the charge made in his affidavit, the trial court was disqualified in the absence of evidence or proof made by counter affidavit refuting the charge of prejudice. This point is not well taken.
The question whether a trial judge was prejudiced against a criminal defendant was before the court in State v. Morrison, 67 Kan. 144, 72 Pac. 554. There affidavits of bias and prejudice of the trial judge were filed in support of a motion for change of venue. The trial judge was charged in affidavits by Butler and Swan with saying: “I could have been on the defense in that case, but did not feel like defending a person that was as guilty as I believe Jessie Morrison is;” and further said: “The Morrison case was one of the issues on which I was elected.” There was a further affidavit by Grinstead which charged the trial judge as saying: “that Jessie Morrison was a murderess and ought to be hung; . . . that when he became convinced of the guilt of a person as he was of the guilt of said Jessie Morrison, he had no hesitation in saying so.”
In opposition to the motion a counter affidavit was filed by Mc-Ginnis who was present at the time Grinstead called and introduced himself to the judge, when the statements to Grinstead were alleged to have been made. The affidavit of McGinnis refuted the affidavit of Grinstead. The trial judge also filed a statement in writing in which he positively disclaimed making any such statements as were attributed to him by Grinstead. He positively disclaimed any bias or prejudice whatever against the defendant.
In disposing of the charge of bias and prejudice it was said in the opinion:
“. . . Had the affidavit of Grinstead stood unchallenged in the record, the allegations therein contained would go far to sustain the charge of prejudice made against the trial judge, but this affidavit is flatly contradicted both by the affidavit of McGinnis and the statement of the trial judge. Again, as appears from the record, this affidavit was taken by the attorneys for the defense prior to the first trial of the cause presided over by Judge Aikman, but was not filed or used until the present application was made.
“As to the affidavits of Butler and Swan, it may be said that the belief or disbelief of a trial judge in tire guilt of a defendant put upon trial before him is not a test of his qualification to preside at such trial. A trial judge may be convinced from his personal knowledge of the case, or what he has heard from others, of the guilt of one put upon trial before him, and yet with the utmost fairness and impartiality conduct the trial and give the defendant a fair and impartial hearing. It is the existence of prejudice or bias in the mind of the trial court against defendant which must be clearly shown in support of an application for a change of venue from the court presided over by such judge, not the belief of the judge in the guilt of defendant. . . .” (pp. 149, 150.)
We do not think the joint statement filed by the trial judge in the instant case is sufficient to indicate such bias or prejudice against the defendant as would preclude the defendant from having a fair trial before him. The mere belief on the part of the trial judge that a defendant is guilty of the crime charged is not enough in itself to require a disqualification. The question is not whether the trial judge believes the defendant guilty, but whether the trial judge can give him a fair trial.
Two reasons are assigned why the belief of a trial judge in the guilt of the accused is not sufficient to show prejudice; first, he is not the trier of the facts; and second, his legal training and experience enable him to pass upon the admissibility of the evidence and to give the proper instructions regardless of his own belief as to the guilt or innocence of the accused. (State v. Kagi, 105 Kan. 536, 185 Pac. 62.)
In State v. Cole, 136 Kan. 381, 15 P. 2d 452, it was said:
“. . . The court does not weigh the evidence. It is the duty of the court to rule on the admissibility of evidence and to instruct the jury. He can do this fairly even though he does think the defendant guilty. It is only when such prejudice is shown as prevents the trial court from performing these duties fairly that the defendant is entitled to a change of judges. It is the duty of the trial judge when challenged in this manner to search his conscience as to this condition. The ruling of the court on that question of fact will not be disturbed unless there is other evidence of prejudice which overcomes the finding of the court. . . (p. 382.)
In the instant case the defendant was tried by a jury. The facts before the court are to be distinguished from the cases of In re Estate of Hupp, 178 Kan. 672, 291 P. 2d 428, (where the case was tried a second time to a trial judge in which only the transcript of the testimony was presented as evidence); Jones v. Insurance Co., 83 Kan. 44, 109 Pac. 1077, (where the trial judge had an interest in the outcome of the lawsuit as a stockholder and director in a bank); and Kansas Pacific Rly. Co. v. Reynolds, 8 Kan. 623, (where the trial judge had previously been of counsel in the case).
The appellant contends it was error for the trial court to permit the name of Mrs. Roland Busch to be endorsed on the information after the trial commenced.
G. S. 1949, 62-802, provides in part that the county attorney “shall prescribe his name thereto, and endorse thereon the names of the witnesses known to him at the time of filing the same [the Information]. He shall also endorse thereon the names of such other witnesses as may afterward become known to him, at such times before the trial as the court may by rule or otherwise prescribe.” (Emphasis added.)
The trial judge, after permitting endorsement of the name of Mrs. Busch on the information, gave defense counsel an opportunity to talk with and examine the witness before she was permitted to take the stand, but the appellant’s counsel declined this opportunity. The testimony of Mrs. Busch concerned the description of the Cadillac automobile in question and the occupants therein at the time she saw it at approximately 3:00 on the morning in question. For the most part it constituted cumulative evidence, since her husband had previously testified concerning the 1952 blue Cadillac and its occupants.
It has been held the endorsement of additional names of witnesses on the information, even during a trial, rests in the sound discretion of the trial court, and where permitted material prejudice to the defendant must be clearly shown before it constitutes reversible error. (State v. Burgett, 174 Kan. 102, 254 P. 2d 254; State v. Lange, 121 Kan. 703, 249 Pac. 595; State v. Howland, 100 Kan. 181, 163 Pac. 1071; and State v. Buckle, 116 Kan. 51, 225 Pac. 1035.)
Considering all the surrounding facts and circumstances presented by the record herein, it fails to indicate that the trial court abused its discretion in permitting the endorsement of the name of Mrs. Busch on the information after the trial had commenced.
The appellant contends the court erred in allowing the purported alcoholic beverage to be admitted in evidence.
The admission of the alcoholic beverage in question into evidence was objected to by the appellant on the ground that Mr. Vance, the alleged owner, could not identify any of the bottles by serial number. He identified, two cases by his name on the container.
Mr. Vance testified the quantity of liquor stolen from his store was the same as the quantity found by the Atchison police department near his store on the morning the burglary was discovered. The identity of the liquor in question after it came into the pos session of the police department was sufficient, since it was at all times under the control of the chief of police who had recorded the serial numbers of the bottles found on the morning in question.
briefly summarized, the foundation for the admission of the liquor in question into evidence was that Mr. Vance, the owner of the liquor, identified the liquor as that which was stolen from his store, but could not positively identify each bottle when cross-examined on this point. The appellant’s objection, therefore, goes merely to the weight and not to the admissibility of the evidence. (20 Am. Jur., Evidence, § 885, p. 744.) In Bank v. Robinson, 93 Kan. 464, 144 Pac. 1019, it was held an owner may testify that he is the owner of certain personal property, and if his adversary desires the constituent facts upon which such claim of ownership is based, he may elicit them on cross examination.
The appellant’s final contention is that the state failed to sustain its burden of proof, which required that it exclude every reasonable hypothesis of the defendant’s innocence in its presentation of the case.
As heretofore stated, the state was required to rely upon circumstantial evidence for a conviction in the prosecution of this case. Where circumstantial evidence is relied upon to sustain a conviction, the circumstances must be so strong as not only to be consistent with the theory of the defendant’s guilt, but they must exclude every reasonable hypothesis except that of the guilt of the defendant. (State v. Sweizewski, 73 Kan. 733, 85 Pac. 800; State v. Robinson, 158 Kan. 287, 147 P. 2d 374; and State v. Goldsberry, 160 Kan. 138, 160 P. 2d 690.)
Having carefully reviewed all of the evidence presented by the record as related to the contentions advanced by the appellant, we conclude the circumstantial evidence presented by the state in the instant case was sufficient to sustain a verdict of guilty.
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The opinion of the court was delivered by
Price, J.:
This was a quiet title action. The court rendered judgment for and granted equitable relief to plaintiff. Defendant has appealed.
One phase of the matter has been here before in Hirst v. Allen, 185 Kan. 764, 347 P. 2d 372.
It appears that in 1957 plaintiff Hirst purchased the property in question from the estate of an incompetent for the sum of $2,500. For some reason unknown to plaintiff defendant Allen’s name also appeared as a grantee in the guardian’s deed. Counsel for defendant contended that Allen’s name was inserted as a grantee because of a contemporaneous oral agreement between plaintiff and one of the estate’s attorneys that if more than $2,500 was obtained for the property in a condemnation proceeding then contemplated by the Kansas Turnpike Authority the excess would be divided between plaintiff and the incompetent’s estate. The sum of $5,000 was ultimately received by way of an award in the condemnation proceeding.
Be that as it may — the matter was thoroughly aired in the trial court and all interested parties testified. It was developed that defendant Allen was a mere “straw man” to the transaction, and he disclaimed any and all interest in the property and the amount of the condemnation award. In, fact, in answer to a question concerning his interest in the matter — he replied—
“I don’t know what the Hell it’s all about.”
The trial court made findings of fact which need not be related or detailed here. Insofar as plaintiff and defendant were concerned, title to the property in question was quieted in plaintiff, and he was adjudged to be the owner of the full amount of the condemnation award.
In their brief counsel for defendant make several contentions as to why the judgment is erroneous. All have been noted and considered, but, as applied to the record, are held to be without merit. Error in the trial court is never presumed. The burden is on an appellant to make it affirmatively appear. That has not been done in this case. As we read the record, the judgment of the trial court was eminently correct and is affirmed. | [
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The opinion of the court was delivered by
Parker, C. J.:
This case stems from a claim made under the Workmen’s Compensation Act. The facts may be briefly stated.
The claimant, William J. Lutz, met with an accidental injury on February 21, 1958, which arose out of and in the course of his employment with the respondent, F. P. Gehring Contractor-Builder, Inc. The relationship of employer and workman existed at the time of the accident and the parties were governed by the terms of the Workmen’s Compensation Laws of Kansas.
The claimant died on May 16, 1959, from causes unrelated to the injury under consideration. The claimant’s widow and infant daughter, as sole heirs, were substituted as claimants.
The Examiner found in part as follows:
“. . . that as a direct result of said accidental injury, the claimant, William J. Lutz, suffered a compensable temporary total disability for a period of 33.29 weeks from February 28, 1958, (1 week after the accidental injury) to October 20, 1958, followed by. a 20 per cent permanent partial general bodily disability for a period not to exceed 381.71 weeks. Temporary total compensation in the amount of $1,131.72 has been heretofore paid. Compensation now due and owing the substituted claimants for a period of 29.71 weeks from October 20, 1958, to May 16, 1959, (the date of death of William J. Lutz) in the sum of $249.56 should be paid in one lump sum.”
During the course of the hearing before the Examiner the appellants, substituted claimants, introduced evidence tending to show an agreement between the claimant and an adjuster of the employer’s insurance carrier, also a respondent, to the effect that the claim would be settled on the basis of the written report of Dr. M. E. Pusitz whenever that report was received. The appellants contend that the claimed agreement had the dignity and force of a judgment and that at the time of claimant’s death he had a vested interest in the weekly allowance for permanent partial disability for 381.71 weeks which was due him and is now payable to his dependents direct.
The adjuster for the respondent insurance company took the witness stand and flatly denied making any such agreement.
On this issue the Examiner found:
“It is further found that there was no agreement between the respondent and the deceased, nor between the respondent’s insurance carrier and the deceased, concerning the settlement of this case. Even if the evidence was sufficient to find there was an agreement to settle this case, there is not one iota of evidence showing that it was to be settled in one lump sum. Therefore, the substituted claimants are only entitled to compensation that was due and payable to the claimant, William J. Butz, at the time of his death, which was $249.56. (152 Ks. 558).” (Emphasis supplied.)
In the journal entry of the district court on appeal from the award it is stated:
“. . . the findings made by the Commissioner are sustained, affirmed and adopted-as the findings of this Court.”
The findings, which are supported by evidence, dispose of this question on appeal. In the recent case of Love v. Kerwin, 187 Kan. 760, 359 P. 2d 881, it is said:
“Before turning to the evidence upon the above question, we must observe again that, under the well known rule of law announced in the workmen’s compensation act, this court has no jurisdiction over questions of fact on appeals under the act. (G. S. 1959 Supp., 44-556; Cross v. Wichita Compressed Steel Co., 187 Kan. 344, 356 P. 2d 804; Grow v. Musgrove Petroleum Corp., 184 Kan. 800, 339 P. 2d 75; Allen v. Goodyear Tire & Rubber Co., 184 Kan. 184, 334 P. 2d 370; Heer v. Hankamer Excavating Co., 184 Kan. 186, 334 P. 2d 372.) . . .” (p. 761.)
We adhere to the pronouncement that the weight to be given evidence is for the district court. It having been found that there was no agreement it is neither necessary nor required that we here consider the effect of an agreement, such as is claimed by appellants, under the Workmen’s Compensation Act.
The judgment is affirmed. | [
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Per Curiam:
This is an original uncontested proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, William M. Nelson, an Overland Park attorney admitted to the practice of law in Kansas in 2000.
The formal complaint filed against the respondent alleged violations of Kansas Rules of Professional Conduct (KRPC) 5.5 (2008 Kan. Ct. R. Annot. 565) (unauthorized practice of law) and KRPC 8.4 (2008 Kan. Ct. R. Annot 586) (misconduct). A hearing was held before a panel of the Kansas Board for Discipline of Attorneys. The respondent stipulated that the factual allegations contained in the formal complaint were true and resulted in the disciplinary rules violations set forth therein.
Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law:
“FINDINGS OF FACT
“The Hearing Panel finds the following facts, by clear and convincing evidence:
“2. On October 13, 2005, the Kansas Supreme Court suspended the Respondent’s license to practice law for failing to comply with the annual attorney registration requirements.
“3. Prior to November 1, 2005, the Respondent attempted to have his license reinstated by forwarding fees to the Kansas Supreme Court. However, the Respondent failed to timely tender the appropriate amount of money to the Court to have his license reinstated. As a result, the Respondent’s check was returned to him and his license was not reinstated.
“4. On July 18, 2006, the Respondent again attempted to have his license reinstated by forwarding $500.00 for fees to the Kansas Supreme Court. On July 19, 2007, . . . [the] Attorney Registration Clerk for the Clerk of the Appellate Courts, wrote to the Respondent and acknowledged receipt of his $500.00 check. [The Attorney Registration Clerk] informed the Respondent of other steps he must take to be reinstated to the practice of law. The Respondent failed to take the steps detailed in the letter.
“5. On November 16, 2006, [the Attorney Registration Clerk] again wrote to the Respondent. Because the Respondent failed to take the steps detailed in [the Attorney Registration Clerk’s] letter, [the Attorney Registration Clerk] returned the $500.00 check to the Respondent.
“6. On August 2, 2006, the Respondent filed suit ... in the District Court of Douglas County Kansas, case number 06CV388. The civil suit was assigned to the Honorable Michael J. Malone, Division 4 of the District Court of Douglas County, Kansas.
“7. After the Respondent filed suit, [D.D.] from the Clerk of the District Court attempted to enter the case on Court’s computer system. In so doing, [D.D.] was unable to locate the Respondent in Full Court. As a result, [A.J.], Civil Section Supervisor, contacted [the Attorney Registration Clerk] with the Clerk of the Appellate Courts and learned that the Respondent’s license had been suspended.
“8. On August 10, 2006, Judge Malone wrote to the Respondent. The letter provided as follows:
‘This court was assigned the above-captioned case which was filed by you on 8/2/ 2006. According to the Offices of the Clerks of the District Court and Kansas Supreme Court, your license to practice law in Kansas was suspended on 10/13/ 2005.’
‘Accordingly, the above-captioned case will be dismissed unless you can show, by 8/21/2006, that your license had been reinstated prior to 8/2/2006.’
“9. On August 24, 2006, Judge Malone dismissed the law suit.
“10. After the Kansas Supreme Court suspended the Respondent’s license to practice law, the Respondent continued to practice law in Johnson County District Court, Wyandotte County District Court, Douglas County District Court, and the municipal courts of Overland Park, Shawnee, Lenexa, Mission, Olathe, Gardner, Leawood, Prairie Village, Roeland Park, Bonner Springs, Edwardsville, and Kansas City, Kansas. Additionally, the Respondent filed an appellate brief with the Kansas Court of Appeals.
"CONCLUSIONS OF LAW
“1. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 5.5 and KRPC 8.4, as detailed below.
“2. KRPC 5.5(a) prohibits the unauthorized practice of law. The Respondent represented [his clients] in the Douglas County District Court. Additionally, the Respondent represented many other clients before the Johnson County District Court, the Wyandotte County District Court, the municipal courts of Overland Park, Shawnee, Lenexa, Mission, Olathe, Gardner, Leawood, Prairie Village, Roe-land Park, Bonner Springs, Edwardsville, and Kansas City, Kansas, and before the Kansas Court of Appeals. Because the Respondent continued to practice lawwhen his license to do so had been suspended, the Hearing Panel concludes that the Respondent violated KRPC 5.5(a).
“3. ‘It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.’ KRPC 8.4(d). In this case, the Respondent engaged in ‘conduct that is prejudicial to the administration of justice’ when he practiced law without a license. The Respondent’s representation of [his clients], at a time when he was prohibited from practicing law, resulted in the dismissal of their case. As such, the Hearing Panel concludes that the Respondent’s misconduct prejudiced justice and thereby violated KRPC 8.4(d).
“4. ‘It is professional misconduct for a lawyer to . . . engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law.’ KRPC 8.4(g). Continuing to practice law after being suspended adversely reflects on the Respondent’s fitness to practice law. The Respondent represented clients in many jurisdictions for an extended period of time. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(g).”
RECOMMENDED DISCIPLINE
In considering the appropriate discipline, the hearing panel addressed the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions, specifically, the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duty to the profession to comply with court rules.
“Mental State. The Respondent knowingly violated his duty.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injury to [his clients in case number 06 CV 388], Because of the Respondent’s misconduct, [his clients] lost their cause of action.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“Dishonest or Selfish Motive. It was dishonest and selfish for the Respondent to continue to practice law after his license had been suspended.
“A Pattern of Misconduct. After the Court suspended the Respondent’s license to practice law, the Respondent continued to practice law in Johnson County District Court, Wyandotte County District Court, Douglas County District Court, and the municipal courts of Overland Park, Shawnee, Lenexa, Mission, Olathe, Gardner, Leawood, Prairie Village, Roeland Park, Bonner Springs, Edwardsville, and Kansas City, Kansas. Additionally, the Respondent filed an appellate brief with the Kansas Court of Appeals. Accordingly, the Respondent engaged in a pattern of misconduct.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined.
“Personal or Emotional Problems if Such Misfortunes have Contributed to a Violation of the Kansas Rules of Professional Conduct. The Respondent suffers from moderate depression. The Respondent’s depression directly contributed to his inability to generate income to pay the registration fees.
“The Present and Past Attitude of the Attorney as Shown by the Respondent’s Cooperation During the Hearing and the Respondent’s Acknowledgment of the Transgressions. The Respondent fully cooperated in the disciplinary process as exhibited by his complete acknowledgment of the misconduct.
“Inexperience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 2000. At the time the Respondent engaged in misconduct, the Respondent had been practicing law for a period of 5 years. Accordingly, the Hearing Panel concludes that Respondent was inexperienced in the practice of law at the time he engaged in the misconduct.
"Remorse. At the hearing on the Formal Complaint, the Respondent expressed genuine remorse.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or die legal system.’ Standard 7.2.
‘Reprimand is generally appropriate when a lawyer negligently engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system.’ Standard 7.3.”
“The Kansas Supreme Court adopted a rule which dictates the procedure to follow when a Respondent requests probation:
‘(g) Requirements of Probation
(1) If the Respondent intends to request that the Respondent be placed on probation for violating the Kansas Rules of Professional Conduct or the Kansas Supreme Court Rules, the Respondent shall provide each member of the Hearing Panel and the Disciplinary Administrator with a workable, substantial, and detañed plan of probation at least ten days prior to the hearing on the Formal Complaint. The plan of probation must contain adequate safeguards that will protect the public and ensure the Respondent’s full compliance with the disciplinary rules and orders of the Supreme Court. (2) If the Respondent provides each member of the Hearing Panel and the Disciplinary Administrator with a plan of probation, the Respondent shall immediately and prior to the hearing on the Formal Complaint put the plan of probation into effect by complying with each of the terms and conditions of the probation plan.
(3) The Hearing Panel shall not recommend that the Respondent be placed on probation unless:
(i) the Respondent develops a workable, substantial, and detailed plan of probation and provides a copy of the proposed plan of probation to the Disciplinary Administrator and each member of the Hearing Panel at least ten days prior to the hearing on the Formal Complaint;
(ii) the Respondent puts the proposed plan of probation into effect prior to the hearing on the Formal Complaint by complying with each of the terms and conditions of the probation plan;
(iii) the misconduct can be corrected by probation; and
(iv) placing the Respondent on probation is in the best interests of the legal profession and the citizens of the State of Kansas. Kan. Sup. Ct. R. 211(g).’ ”
The hearing panel then stated:
“The Hearing Panel concludes that the Respondent’s proposed plan of probation is not substantial and detailed. Additionally, the Hearing Panel concludes that the Respondent failed to implement the plan of probation prior to any of the three hearings. Finally, the Hearing Panel concludes that placing the Respondent on probation is not in the best interests of the legal profession and the citizens of the State of Kansas.
“Based upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be suspended for a period of six months from the practice of law in the State of Kansas. Additionally, following the six-month suspension, the Hearing Panel recommends that the Respondent submit to a reinstatement hearing, pursuant to Kan. Sup. Ct. R. 219, to establish that he is currently eligible and fit to practice law.”
DISCUSSION
In a disciplinary proceeding, this court considers the evidence, the findings of the hearing panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by substantial, clear, convincing, and satisfactory evidence. In re Lober, 276 Kan. 633, 636, 78 P.3d 442 (2003); see also Supreme Court Rule 211(f) (2008 Kan. Ct. R. Annot. 313) (misconduct to be established by clear and convincing evidence).
The respondent stipulated to the factual allegations contained in the formal complaint and the disciplinary rules violations charged therein. Additionally, he filed no exceptions. As a result, the final hearing report is deemed admitted. Supreme Court Rule 212(c) (2008 Kan. Ct. R. Annot. 327). We conclude the hearing panel’s findings of fact are supported by clear and convincing evidence and support the panel’s conclusions of law, and we adopt the panel’s findings and conclusions.
Based upon this court’s consideration of the entire record, the arguments of counsel, and statements of the respondent before this court, we conclude that the appropriate discipline in this case is a 6-month suspension from the practice of law in this state.
It Is Therefore Ordered that William M. Nelson be and he is hereby suspended for 6 months from the practice of law in Kansas, effective upon the filing of this opinion in accordance with Supreme Court Rule 203(a)(2) (2008 Kan. Ct. R. Annot. 266) for violations of KRPC 5.5 (2008 Kan. Ct. R. Annot. 565) (unauthorized practice of law) and KRPC 8.4 (2008 Kan. Ct. R. Annot 586) (misconduct).
It Is Further Ordered that William M. Nelson shall comply with Supreme Court Rule 218 (2008 Kan. Ct. R. Annot. 350).
It Is Further Ordered that William M. Nelson shall comply with Supreme Court Rule 219 (2008 Kan. Ct. R. Annot. 365) if he seeks reinstatement. As part of the reinstatement procedure, the Disciplinary Administrator may require an evaluation by a health care provider chosen by the Disciplinary Administrator in order to determine if respondent is mentally and physically competent to engage in the active and continuous practice of law in this state.
It Is Further Ordered that this opinion be published in the official Kansas Reports and that the respondent pay the costs of these proceedings.
McFarland, C.J., not participating.
Hill, J., assigned. | [
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The opinion of the court was delivered by
Beier, J.:
This case arises out of a collision between a Burlington Northern and Santa Fe Freight (BNSF) train and a truck owned by Dodge City Implement, Inc. (DCI). BNSF filed suit in federal court against DCI and its employee driver, Justin Slattery. After that action was settled, plaintiffs DCI and Slattery pursued this suit against defendants Barber County (County) and Moore Township (Township) under negligence and implied indemnity theories because of an alleged failure to construct and maintain a safe grade crossing. The district judge granted defendants’ motion to dismiss. We granted plaintiffs’ petition for review from a Court of Appeals decision affirming the district court result in Dodge City Implement, Inc. v. Board of Barber County Comm’rs, 38 Kan. App. 2d 348, 165 P.3d 1060 (2007).
The issues before us are two: Did the district judge err in concluding that plaintiffs have no viable cause of action against defendants for comparative implied indemnity? And did the district judge err in concluding that plaintiffs did not substantially comply with K.S.A. 12-105b(d)?
Factual and Procedural History
The accident that led to this appeal occurred on September 8, 2003. The following February, BNSF filed suit against DCI and Slattery in the United States District Court for the District of Kansas.
Approximately 2 months later, the parties entered into a Mutual Release and Settlement Agreement under which DCI and Slattery paid $3 million to settle BNSF’s claims “against all parties and persons.” DCI and Slattery expressly reserved any right they had “to make a claim against or sue Barber County, Kansas, and/or any person or entity, other than [BNSF] . . . for comparative implied indemnity and any other cause of action that may exist under Kansas law.”
On August 23, 2004, counsel for DCI and Slattery sent a letter to the Barber County Clerk on behalf of their insurer, Continental Western Insurance Company, which purported to serve as a notice of the insurer’s claims under K.S.A. 12-105b(d).
DCI and Slattery filed this suit against Barber County in June 2005. Their petition alleged that the County was responsible for maintaining the grade crossing and traffic controls at the site of the accident, that a warning sign was absent at the time of the accident, that earthen obstacles and vegetation obscured visibility, and that the angle of the road and an excessively short highway approach created a dangerous condition for crossing vehicles. The petition purported to include causes of action based on negligence, negligence per se, comparative implied indemnity, and implied indemnity. Plaintiffs later filed an amended statement of damages reflecting the $3 million settlement amount paid to BNSF plus $92,313.34 for damages sustained by DCI and Slattery.
The County answered, substantially agreeing with the factual allegations of DCI and Slattery but asserting that (1) the doctrine of implied comparative indemnity was inapplicable because the County was not a party to the federal lawsuit and no product’s chain of distribution was involved in this action; (2) the doctrine of implied indemnity was inapplicable because there was no legal relationship between the County and the plaintiffs that obligated plaintiffs to enter into a settlement agreement and the plaintiffs were not without fault; and (3) it was immune under the Kansas Tort Claims Act. The County subsequently filed a K.S.A. 60-212(b)(6) motion to dismiss plaintiffs’ claims of comparative implied indem nity and implied indemnity for failure to state claims upon which relief could be granted.
On September 9, 2005, DCI and Slattery sought to join the Township as a defendant, claiming discovery had revealed the Township bore responsibility for designing, constructing, maintaining and controlling the roadway and grade crossing at issue. Plaintiffs maintained that an August 12, 2005, letter, sent by plaintiffs’ counsel to the clerk and trustee of the Township, provided sufficient notice of their claims under K.S.A. 12-105b(d). This letter was nearly identical to the letter sent to the County a year earlier.
The district judge heard the parties’ arguments on the County’s motion to dismiss on November 14, 2005, and took the matter under advisement. The judge granted plaintiffs’ motion to join Moore Township on December 28, 2005, and the plaintiffs filed an amended petition including the Township as a defendant on the same day.
The County and the Township each filed an answer to the amended petition. The County maintained its affirmative defenses and asserted that the Township had jurisdiction over the portion of the road where the accident occurred. The Township asserted: (1) The August 12, 2005, letter did not constitute substantial compliance with the notice requirements of K.S.A. 12-105b(d), therefore depriving the district court of subject matter jurisdiction over plaintiffs’ claims against it; (2) plaintiffs’ claims were barred by applicable statutes of limitations, statutes of repose, and laches; (3) plaintiffs’ claims of negligence, negligence per se, comparative implied indemnity, and implied indemnity failed to state claims upon which relief could be granted; (4) plaintiffs’ claims were barred by the one-action or one-trial rule; (5) plaintiffs’ claims were barred by the Kansas Tort Claims Act, K.S.A. 75-6101 etseq.; (6) plaintiffs’ negligence claims were barred by comparative fault rules; (7) the Township was not negligent; and (8) plaintiffs’ claimed damages were overstated and limited by statute.
On February 27, 2006, the Township filed a motion to dismiss. The County supplemented its earlier motion to dismiss, incorporating the arguments and authorities cited by the Township on the K.S.A. 12-105b(d) issue. Thereafter, the district judge heard ar guments and ruled for the County and the Township on their pair of motions to dismiss. The judge made the following findings and arrived at the following conclusions:
“1. Defendants’ motion to dismiss plaintiffs’ comparative implied indemnity claim should be and hereby is sustained on the basis that the defendants herein were not named defendants or joined pursuant to K.S.A. 60-258a(c) in the previous related federal lawsuit brought by Burlington Northern and Santa Fe Railway Co. and that it would be unfair to defendants herein to subject them to allegations of fault now that were not asserted in the federal case. The Court adopts by reference the legal authorities cited by defendants in their brief, including the original and subsequent briefs filed by defendant Barber County.
“2. Defendants’ motion to dismiss plaintiffs’ negligence and negligence per se claims for property damage in the amount of $92,313.34 should be and hereby is sustained on the basis that plaintiffs’ notice of claim filed with defendants did not substantially comply with K.S.A. 12-105b(d) regarding this claim and therefore the Court lacks jurisdiction over it.
“3. Defendants’ motion to dismiss plaintiffs’ implied contractual indemnity claim should be and hereby is sustained on the basis of the legal authorities cited in defendants’ briefs.”
The district judge treated the motions to dismiss as summary judgment motions, considering materials beyond the pleadings. See Perry v. Board of Franklin County Comm’rs, 281 Kan. 801, 806-07, 132 P.3d 1279 (2006).
Plaintiffs appealed the dismissal of their $3 million comparative implied indemnity claim as barred by the “single action” rule and the dismissal of their negligence and negligence per se claims as barred by failure to comply with the notice statute. They did not appeal the dismissal of their implied indemnity claim.
A panel of our Court of Appeals affirmed, Dodge City Implement, Inc., 38 Kan. App. 2d 348, closely examining several of our prior cases, including Teepak, Inc. v. Learned, 237 Kan. 320, 699 P.2d 35 (1985); Ellis v. Union Pacific R.R. Co., 231 Kan. 182, 643 P.2d 158, aff'd on rehearing 232 Kan. 194, 653 P.2d 816 (1982); and Kennedy v. City of Sawyer, 228 Kan. 439, 618 P.2d 788 (1980). The panel concluded that
“[a] defendant seeking to minimize its liability in a comparative fault situation not involving a chain of distribution or similar commercial relationship must do so by comparing the fault of other defendants pursuant to K.S.A. 60-258a in order to reduce its own share of liability and damages. If the defendant chooses to settle and obtain a release of common liabilities involving other parties whom the plaintiff did not sue, the defendant does not have an action for comparative implied indemnity or post-settlement contribution for damages caused by other tortfeasors.” Dodge City Implement, Inc., 38 Kan. App. 2d 348, Syl. ¶ 1.
The panel also evaluated the letters sent to the County and the Township under K.S.A. 2006 Supp. 12-105b(d) and concluded they were fatally insufficient to support the negligence and negligence per se claims for more than $92,000. In the panel’s view, the letters failed to indicate, as required, the name and address of the claimants or the claimants’ attorney, the nature and extent of the injuries claimed, and the amount of damages sought. This conclusion led the panel to affirm the district judge’s dismissal of these two claims. Dodge City Implement, Inc., 38 Kan. App. 2d 348, Syl. ¶ 2.
On petition for review, plaintiffs argue that the panel’s analysis of its comparative implied indemnity claim was inconsistent with post -Ellis and Teepak cases eroding the one-action rule and that the panel improperly required strict, rather than substantial, compliance with the notice provision of K.S.A. 2008 Supp. 12-105b(d).
Comparative Implied Indemnity
Our standard of review when a motion to dismiss has been treated as a motion for summary judgment matches that for summary judgment generally:
“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 die 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 summaty 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).
In this case, there is no factual dispute and our review is unlimited. See Roy v. Young, 278 Kan. 244, 247, 93 P.3d 712 (2004).
The Kansas Legislature’s 1974 adoption of comparative negligence, embodied in K.S.A. 60-258a, abolished joint and several liability and replaced it with proportional, or comparative, liability, in which the loss is borne by each tortfeasor in proportion to his or her share of the total fault. K.S.A. 60-258a(d); Brown v. Keill, 224 Kan. 195, 203-04, 580 P.2d 867 (1978).
K.S.A. 60-258a(c) contains a joinder provision, which states:
“On motion of any party against whom a claim is asserted for negligence resulting in . . . personal injury, property damage or economic loss, any other person whose causal negligence is claimed to have contributed to such . . . personal injury, property damage or economic loss, shall be joined as an additional party to the action.”
The intent and purpose of the statute was “to impose individual liability for damages based on the proportionate fault of all parties to the occurrence.” Brown, 224 Kan. at 207.
To meet this objective, this court interpreted the joinder provision to encompass even the joinder of immune, unknown, and unavailable tortfeasors, stating in 1978:
“After having answered the preliminary questions and having applied the rules of statutory construction previously set forth in this opinion we conclude the intent and purpose of the legislature in adopting K.S.A. 60-258a was to impose individual liability for damages based on the proportionate fault of all parties to the occurrence which gave rise to the injuries and damages even though one or more parties cannot be joined formally as a litigant or be held legally responsible for his or her proportionate fault.” Brown, 224 Kan. at 207.
The principal argument of plaintiffs DCI and Slattery in this appeal is that, despite the language of K. S. A. 60-258a and the broad interpretation given it in Brown, the fault of the County and the Township need not have been subject to comparison in BNSF’s federal lawsuit in order for the plaintiffs, as settling defendants, to seek indemnity from the County and the Township in this second action.
The chain of precedent upon which DCI and Slattery rely extends back to 1980, when this court decided Kennedy, 228 Kan. 439. In that case, landowners whose cattle died from arsenic poisoning sued the City of Sawyer (Sawyer) and a Sawyer city councilman who were responsible for spraying herbicide along a fence separating Sawyer s land from the plaintiff landowners’ pasture. The defendants filed a third-party complaint against the distributor of the herbicide; the distributor, in turn, sought recovery from the manufacturer. Motions for summary judgment and to dismiss the distributor and manufacturer were filed, and the district judge ruled that indemnity was unavailable as a matter of law on these facts. The judge did not mention the comparative negligence statute, and comparative negligence principles played no part in the decision.
Sawyer and the city councilman appealed the district judge’s dismissal of the third parties. While the appeal was pending in the Court of Appeals, Sawyer settled the landowners’ claim, and the district judge dismissed the underlying case with prejudice. In its ultimate opinion, the Court of Appeals addressed the comparative negligence statute, but it affirmed the district judge’s dismissal of the third parties under law predating the statute.
In this “awkward position,” this court took up Sawyer’s petition for review. Sawyer claimed that it should have been permitted to join the third parties — either to allocate fault under the comparative negligence statute or to secure indemnification because the third parties were strictly liable for harm caused by their product.
This court framed the issue as: “[Wjhether comparative negligence principles should be applied to a product strict liability action and whether indemnity might be recovered,” but it noted that the settlement of the plaintiff landowners’ claim made the “comparative negligence questions secondary to the indemnity issue.” Kennedy, 228 Kan. at 448.
Despite this order of priorities, the court began its analysis by agreeing with the Court of Appeals that “the doctrine of comparative fault or comparative causation should be and is applicable to both strict liability claims and to those claims based on implied warranty in products liability cases.” Kennedy, 228 Kan. at 452. The court held that the statutory adoption of comparative negligence
“abrogat[ed] the concept of indemnification based on the dichotomy of active/ passive negligence as conceptualized in [the case law relied on by the district court to dismiss the third-party claims]. In actions where comparative negligence is in issue the court deals in percentages of causal responsibility, . . . and the all or nothing concepts [of indemnification] are swept aside.” Kennedy, 228 Kan. at 453.
Still, because plaintiffs, as part of their settlement with Sawyer and the city councilman, released any and all parties who might have contributed to the plaintiffs’ damages, they could have no recovery against third parties. Kennedy, 228 Kan. at 453.
The Kennedy court then moved to the controlling question of whether Sawyer and the city councilman could nevertheless seek indemnification from the third parties. The court observed: “Traditional implied indemnity, such as that sought by the city in this case, implies a shifting of 100% of a loss from the indemnitee to the indemnitor,” whereas “ ‘contribution’ . . . contemplates a shift of only part of the loss to another.” Kennedy, 228 Kan. at 454 (citing Cullen v. Atchison, T. & S. F. Rly. Co., 211 Kan. 368, 375, 507 P.2d 353 [1973]; Prosser, Handbook of the Law of Torts § 51, p. 310 [4th ed. 1971]). Claims of indemnity are either express, i.e., “when there is an express contract of indemnity, such as a ‘hold harmless’ agreement,” or implied, i.e., “when one is compelled to pay what another party ought to pay,” because of a legal relationship, such as respondeat superior. Kennedy, 228 Kan. at 455. The court recognized that traditional implied indemnity was all or nothing, a very “ ‘blunt instrument’ for reallocating loss,” and that comparative negligence promised relief from the inadequacies of that instrument. 228 Kan. at 456.
The court continued:
“[T]o satisfy the legislative intent of encouraging resolution of all issues in a single action, the comparison of fault of all wrongdoers should be effected in the original action. [Citation omitted.] It must be recognized that the procedural mechanism of K.S.A. 60-258a(c) exists to facilitate joinder (and hence comparison) of all potential wrongdoers and may supersede the third-party mechanism which formerly provided the only means for securing a consideration of the fault of a wrongdoer who plaintiff chose not to sue. The maintenance of a claim by plaintiff against a joined party is not a prerequisite to securing comparison. [Brown,] 224 Kan. 195, Syl. ¶ 6. It would appear, however, that the formal ‘joinder’ mechanism of K.S.A. 60-258a(c) evidences a legislative intent to allow a defendant to force comparison of his fault with that of a third party. This court has not, however, viewed the invocation of formal joinder as a necessary prerequisite to effecting comparison of fault [citation omitted], and this court has recognized that the comparative negligence statute is silent as to what position the added party occupies once that party is joined.
“We conclude that now is the proper time under the facts of this case to adopt a form of comparative implied indemnity between joint tortfeasors. When as here a settlement for plaintiffs’ entire injuries or damages has been made by one tortfeasor during the pendency of a comparative negligence action and a release of all liability has been given by plaintiffs to all who may have contributed to said damages, apportionment of responsibility can then be pursued in the action among the tortfeasors.
“. . . In the present case where the amount of the damages [was] not fixed by judicial proceedings, but by compromise and settlement between plaintiff and defendants, it will be the duty of the defendants to bring into the action all tortfeasors against whom comparative liability through indemnity is sought. Reasonable damages if less than the settlement figure should be judicially determined. If the reasonable amount of the damages is determined to be more than the settlement figure, all tortfeasors will receive the benefit of the bargain struck by the settling tortfeasor. The apportionment should be accomplished in the action which was pending between plaintiff and defendants when the compromise and settlement is accomplished. If a settlement has been made for all liability arising from the occurrence before a comparative negligence action has been filed, the settling tortfeasor may then and in that event file an action in court to have the degrees of responsibility among joint tortfeasors determined, damages assessed and apportionment decreed among them.
“In such a case it would appear that the amount the defendant or defendants have paid in full settlement of plaintiffs’ claim would be the maximum amount subject to be apportioned. In any action where apportionment of responsibility is sought by a settling tortfeasor he or she will be required to establish the reasonableness of the amount of the settlement, and that he or she had an actual legal liability he or she could not be expected to successfully resist.” (Emphasis added.) Kennedy, 228 Kan. at 460-61.
The next case in the relevant chain of precedent was decided a year after Kennedy, and it lacked the straddle across statutory change that made Kennedy awkward. In the case, Albertson v. Volkswagenwerk Aktiengesellschaft, 230 Kan. 368, 634 P.2d 1127 (1981), a driver injured in a motor vehicle accident sued the other driver in state court. The jury allocated 40 percent fault in the accident to the plaintiff and 60 percent to the defendant and set damages at $275,000. After the judgment was satisfied, the plaintiff brought a second suit in federal court against Volkswagenwerk Aktiengesellschaft (Volkswagen), the manufacturer of his vehicle, al leging strict liability for injuries and damages caused by its defective product. When Volkswagen moved for summary judgment, the federal district court certified the following question to this court:
“ ‘Having once obtained a satisfied judgment for a portion of his injuries in a comparative negligence action, may a plaintiff bring an action to recover damages for the remaining portion of his injuries against a defendant not a party to the first action, such second action being based on strict liability in tort?’ ” 230 Kan. at 369.
This court answered the question “no.” 230 Kan. at 374. The court noted its earlier ruling in Kennedy but stated:
“The action is over. Volkswagen could have been sued in state court but plaintiff chose not to join the corporation for strategic reasons. Albertson is bound by that decision. Under the doctrine of comparative fault all parties to an occurrence must have their fault determined in one action, even though some parties cannot be formally joined or held legally responsible. Those not joined as parties or for determination of fault escape liability.” Albertson, 230 Kan. at 374.
This portion of the Albertson decision often is cited as the genesis of Kansas’ judicial one-action rule. See Chavez v. Markam, 256 Kan. 859, Syl. ¶ 3, 889 P.2d 122 (1995); Mick v. Mani, 244 Kan. 81, Syl. ¶¶ 1-2, 766 P.2d 147 (1988); Tersiner v. Gretencord, 17 Kan. App. 2d 551, Syl. ¶¶ 1-5, 840 P.2d 544 (1992), rev. denied 252 Kan. 1094 (1993). In actuality, it is merely a strong reiteration of the expansive joinder language of K.S.A. 60-258a(c).
Our next two cases, Ellis, 231 Kan. 182 and Teepak, Inc., 237 Kan. 320, were consistent with Albertson and explicitly limited the expansive language of Kennedy. Judge Nancy L. Caplinger, writing for the Court of Appeals panel in this case, correctly described their import as follows, and we adopt the panel’s analysis:
“Barber County and Moore Township respond that this case is not controlled by Kennedy, but rather by Ellis v. Union Pacific R.R. Co., 231 Kan. 182, wherein they assert the Kansas Supreme Court expressly disapproved application of Kennedy to circumstances similar to those in this case.
“The facts in Ellis are very similar to those here. In Ellis, the plaintiff sued the railroad for damages arising out of a collision between the plaintiff s vehicle and a train. 231 Kan. at 183. Pursuant to K.S.A. 60-258a(c), the railroad joined several governmental entities, including two townships and a county, but the plaintiff did not assert any claims against these entities. The railroad then settled the case with the plaintiff and obtained an agreement from the plaintiff that included a release of the governmental entities and a promise by plaintiff to cooperate with the railroad in the prosecution of any claim for indemnity or contribution. After approval of the setdement, die railroad attempted to pursue a claim in the same action for comparative implied indemnity against the governmental entities. 231 Kan. at 183. The Supreme Court, however, upheld dismissal of the railroad’s claim for implied indemnity or contribution, holding that no cause of action was available. 231 Kan. at 191-92.
“The court in Ellis distinguished Kennedy, noting that while Kennedy involved joinder of defendants under K.S.A. 60-214, the case before it concerned joinder of additional defendants pursuant to K.S.A. 60-258a. 231 Kan. at 187-89. The court held that because no party sought recovery against the governmental entities, the railroad could not subsequently recover from the governmental entities even if they were at fault. The court reasoned that had the governmental entities been subject to liability, they might have been subject to contribution. 231 Kan. at 190. Further, the Ellis court noted that Kennedy involved ‘indemnification against other parties in the manufacturer’s chain of distribution and supply.’ Ellis, 231 Kan. at 184.
“Significantly, the Ellis court specifically limited the language in Kennedy which DCI relies upon here. The court stated:
“ ‘Broad language in the Kennedy opinion, 228 Kan. at 460-61, outlining the defendant’s role in bringing “into the action all tortfeasors against whom comparative liability through indemnity is sought” goes far beyond the facts of the Kennedy case and is disapproved to the extent that it suggests a defendant can enlarge the liability of other defendants.’ 231 Kan. at 191.
“Further, the court in Ellis clarified the nature of the cause of action which the settling defendants might have had if they had met the ‘procedural prerequisites’:
“ ‘The relief granted by this court, in light of the facts in the Kennedy case and the interplay of principles of comparative negligence, indemnity, and settlement, was termed an action for comparative implied indemnity. We recognize the term is not appropriate to the case at bar in which post-settlement contribution, rather than indemnity, is at issue. However, while proportional contribution is a more appropriate term in the instant case, we have no desire to belabor that distinction and cloud the issue before us which concerns procedural prerequisites to any claim for post-settlement proportional payment, regardless of the nomenclature used.’ 231 Kan. at 184.
“Here, as in Ellis, DCI is actually seeking proportional post-settlement contribution rather than comparative implied indemnity from the governmental entities. And, like Ellis, regardless of the nomenclature used, it appears the procedural prerequisites to post-settlement proportional payment were not met as Barber County and Moore Township were not subject to liability in the previous action. In fact, this case arguably presents a stronger case for denial of post-settlement contribution than Ellis, as DCI did not seek to join the governmental entities as defendants pursuant to K.S.A. 60-258a, as did the railroad in Ellis. Moreover, DCI did not allege in its answer in die federal case that anyone other than BNSF was at fault for the accident.
“DCI attempts to distinguish Ellis by suggesting that Ellis turned upon whether the plaintiff in the original action could have brought an action against the governmental entities at die time the railroad settled the claims with the plaintiff. DCI points out that in Ellis, the statute of limitations on the plaintiff s claims against the governmental entities had already expired at the time of settlement Here, DCI settled with the plaintiff, BNSF, before BNSF’s statute of limitations for claims against the governmental entities had expired.
“However, DCI neglects to point out that the court in Ellis expressly rejected this argument:
“ ‘In the case at bar the defendants against whom contribution is now sought were not subject to actual liability since the plaintiffs had made no claim against them. Union Pacific argues the potential for recovery existed because of the possibility of amendment of the plaintiffs petition to state a claim under the relation back provisions of K.S.A. 60-215 despite the running of the statute of limitations under K.S.A. 60-513. We need not reach that issue because plaintiffs did not attempt to amend their petitions either before or after the running of the statute of limitations.’ 231 Kan. at 191-92.
“Here, BNSF did not attempt to amend its petition in the federal action to make a claim against the governmental entities before settling with the original defendant. The determinative factor here, as it was in Ellis, is not whether the statute of limitations had run at the time of settlement but whether the governmental entities were subject to liability in the prior action.
“Teepak v. Learned.
“Barber County and Moore Township point out that Kennedy’s application was similarly restricted in Teepak, 237 Kan. at 321, decided 3 years after Ellis. There, the plaintiff was injured after he ate some sausage and subsequently became ill as a result of a sausage casing obstructing his small intestine. Dr. George Learned performed surgery to remove the casing, leaving plaintiff with only a fraction of his small intestine.
“The plaintiff sued Alewel’s, the sausage manufacturer, and Teepak, the casing manufacturer, in federal court. Teepak filed a third-party complaint against Learned alleging negligence and seeking indemnification in the event Teepak was found liable. The plaintiff, however, did not assert any claims against Learned. Teepak also filed a separate action against Learned in state court seeking the same relief it sought in its third-party complaint.
“After Teepak and Alewel’s settled the federal action, Teepak’s third-party complaint was dismissed without prejudice. Teepak then attempted to proceed with its action against Learned in state court. The district court denied Learned’s motions for dismissal and summary judgment, and Learned filed an interlocutory appeal.
“Relying upon Ellis, the Kansas Supreme Court concluded Teepak had no cause of action against Learned even if his negligence contributed to the plaintiff s injuries. The court reasoned:
“ ‘In the case before us, Teepak (like the railroad in Ellis) is seeking post-settlement contribution from a party against who the injured party never sought recovery but whom it claims contributed to the injured party’s damages. As we held in Ellis this constitutes an action seeking post-settlement contribution rather than indemnity and the holding of Kennedy relative to ‘comparative implied indemnity’ is inapplicable. We conclude die trial court erred in holding Teepak had a valid cause of action against Learned predicated upon indemnification.’ 237 Kan. at 328.
“As it had in Ellis, the court in Teepak strongly limited its holding in Kennedy.
“ ‘The difficulties drat have arisen from the Kennedy decision primarily involve some overly broad language utilized therein. Indemnification among those in the chain of distribution arises out of their contractual relationship with each other and Kennedy must be read in the context of its factual situation. The use of the term ‘joint tortfeasors’ in Syl. ¶ 9 of Kennedy, an indemnity case, is unfortunate and has led to considerable confusion.’ (Emphasis added.) 237 Kan. at 328.
“Here, as in Ellis and Teepak, no commercial or contractual relationship existed between the settling defendant and the governmental entities it sought to pursue for post-settlement contribution, incorrectly denominated as ‘indemnity or subrogation.’ And, as in Albertson, the plaintiff could have sued the governmental entities in state court, but for reasons undisclosed to the court, chose not to do so.” Dodge City Implement, Inc., 38 Kan. App. 2d at 352-57.
Acknowledging, as they must, the obstruction that a vital one-action rule and Ellis and Teepak place in their path, DCI and Slatteiy assert that subsequent cases have revived their ability to pursue the County and the Township for comparative implied indemnity, or, as it is more accurately termed, postsettlement contribution. These cases, they assert, stand for a one-trial rule rather than a one-action rule.
Again, we have carefully reviewed Judge Caplinger’s assessment of these more recent cases and cannot improve upon her description and analysis on behalf of the panel of our Court of Appeals. We therefore adopt the following from her persuasive opinion:
“DCI cites Mathis v. TG & Y, 242 Kan. 789, 751 P.2d 136 (1988), as evidence of this continued expansion of comparative implied indemnity. There, the plaintiff filed an action against TG & Y after a loose door closure struck plaintiff on the head as he was leaving a TG & Y store, resulting in personal injury. The plaintiff later filed a second lawsuit against several other defendants, alleging negligence as a result of the same incident. 242 Kan. at 790.
“After TG & Y settled the second lawsuit, TG & Y moved to dismiss Mathis’ original suit based on Albertson’s one-action rule. 242 Kan. at 790. On appeal, a divided Supreme Court permitted Mathis to pursue the original suit because a judicial adjudication of the comparative fault of the defendants had not been made. 242 Kan. at 792-93. In a dissent, Justice Herd encouraged the majority to apply the one-action rule, insisting that it was more appropriate for dismissal with prejudice to be considered a determination of the case on its merits, and reasoning that to hold otherwise would permit parties to maintain additional actions arising out of the same incident against other parties. 242 Kan. at 794-95 (Herd, J., dissenting).
“However, unlike Ellis, Teepak, or the present case, Mathis involved successive tort claims by a plaintiff against different defendants, not a situation in which neither the plaintiff nor the settling defendant brought claims against a nonparty and then the settling defendant attempted to bring an action arising from its settlement of the first action. And, as Barber County and Moore Township note, Mathis distinguished Teepak and, in doing so, confirmed the continuing force of that holding.
“Although not mentioned in DCFs appeal brief, DCI sought to rely at oral argument upon Anderson v. Scheffler, 242 Kan. 857, 858, 752 P.2d 667 (1988), in further support of its argument regarding ehmination of the one-action rule. We note that counsel for Barber County as well as Moore Township addressed this authority at argument, and both have also provided us with post-argument correspondence discussing and distinguishing Anderson.
“Anderson, a Missouri resident, was severely injured by an auger while delivering a load of poultry meal to a plant. Anderson filed suit against the owner and operator of the plant, Badger By-Products. Badger, a division of Beatrice Companies, Inc. (Beatrice) successfully removed the case to federal district court. Plaintiffs motion to remand the case to state court was denied. Plaintiff then amended his petition to join four additional defendants including Beatrice and Industrial Bearing and Transmission Company, Inc. (IBT), a Missouri corporation that sold the auger to Badger. 242 Kan. at 857-58.
“Anderson again moved to remand the case to state court because the addition of IBT as a party defendant would destroy diversity jurisdiction. The court granted plaintiff s motion to amend, adding the additional defendants, but did not include IBT because to do so would destroy diversity jurisdiction. Thereafter, plaintiff filed suit in state court against IBT and Randy Scheffler, an IBT employee who had accepted the auger order. 242 Kan. at 858-59. In the federal case, neither plaintiff nor any of the named defendants made any allegation of fault on the part of IBT or Scheffler. Plaintiff subsequently settled the federal case with Beatrice, releasing all parties except IBT and Scheffler and dismissing the case with prejudice. 242 Kan. at 858-59.
“On appeal, the Supreme Court held that a determination of comparative fault had not occurred. The court refused to apply Albertson and Teepak because plaintiff specifically attempted to retain the right to bring suit against IBT and Scheffler. Although seemingly questioning the rationale behind Mathis, the Anderson court permitted plaintiff to maintain a second suit. Anderson, 242 Kan. at 865-66.
“Although not cited by the parties, we note that the court applied Mathis in Childs v. Williams, 243 Kan. 441, 757 P.2d 302 (1988). There, the 12-year-old plaintiff was injured in an automobile accident, and the plaintiffs mother and the driver of the vehicle in which the plaintiff was a passenger negotiated a settlement agreement. Because of the plaintiffs minority status, which required court approval of the settlement agreement, the plaintiffs mother filed a negligence action against the driver on the plaintiffs behalf. Following a “friendly hearing,” the court approved the settlement. 243 Kan. at 441. No determination of comparative fault occurred, nor did the plaintiff make any attempt to preserve a right of action against the driver of the other vehicle involved in the accident. 243 Kan. at 442.
“The plaintiff s mother subsequently filed a negligence action against the other driver. That action was dismissed by the district court based on Albertson’s one-action rule. 243 Kan. at 442. Relying on Mathis and Anderson, our Supreme Court reversed the dismissal, permitting the plaintiff s mother to pursue the second suit because no judicial determination of comparative fault had occurred in the plaintiff s initial action. 243 Kan. at 443. In so holding, the court recognized an expansion of the one-action rule to permit a plaintiff to seek judicial determination of comparative fault, regardless of whether the plaintiff had the opportunity to do so earlier in an earlier action.
“DCI also relies upon Mick v. Mani, 244 Kan. 81, 766 P.2d 147 (1988), in support of its suggestion that the one-action rule has been abrogated. There, after the plaintiff received severe injuries while worldng on a drilling rig, he simultaneously filed two suits — a products liability suit against the steel, welding, and repair companies and a negligence action against Mani, a plastic surgeon, and others who had treated him. Although the defendants participated in joint discovery, the cases were never consolidated. All defendants except one were dismissed from the first case, and the jury found in favor of the remaining defendant. Similarly, all defendants were dismissed from the second case except Mani. 244 Kan. at 81-82.
“The Mick court affirmed the district court’s summary judgment in favor of Mani, concluding that even without Mani’s presence in the first action, the jury made a determination of comparative fault. The court concluded ‘[pjlaintiff elected to separate his defendants but not his claims of damage. As a result, his entire damage claim was presented to the . . . jury. When that verdict became final, plaintiffs entire damage claim was ended.’ 244 Kan. at 93. The court indicated the one-action rule should more appropriately be called the ‘one-trial rule.’ 244 Kan. at 93.
“Finally, DCI relies upon Schaefer v. Horizon Bldg. Corp., 26 Kan. App. 2d 401, 985 P.2d 723 (1999). In Schaefer, homeowners sued the general contractor and ‘John Doe’ for remedial cement work performed on their home. The general contractor settled the claims and subsequently brought a third-party comparative implied indemnity claim against the subcontractor. This court recognized that comparative implied indemnity is ‘an equitable remedy available to a single defendant, among a number of tortfeasors, who by settling with the plaintiff or paying a judgment, pays the other tortfeasors’ share of liability.’ 26 Kan. App. 2d at 403. Nevertheless, the court held that the general contractor did not have a valid comparative implied indemnity claim against the subcontractor because the subcontractor was not at risk of suit as the statute of limitations on the homeowners’ claims had expired. 26 Kan. App. 2d at 403. The court held:
“ ‘In order to prevail on a claim for partial indemnity or contribution against a third-party defendant, the settlor must show it actually paid damages on behalf of that third party. If the third party was never at risk of having to pay for its own damages, the settlor cannot show it benefitted the third-party defendant, and the value of its contribution claim is zero.’ 26 Kan. App. 2d 401, Syl. ¶ 2.
“Our review of the cases decided post-Albertson reveals that certain exceptions to the one-action rule have been recognized in limited situations. Therefore, the question for this court becomes whether the facts of the present case fit under the broader rule as expressed in Mathis and recognized in Anderson as DCI suggests, or whether the facts remain squarely within the rule announced in Ellis and Teepak, as the County and Township suggest.
“We note that the court in Anderson permitted plaintiff to pursue a second action against defendants not involved in the original lawsuit, holding that ‘where a plaintiff is prevented from joining a necessary party in federal court because of loss of diversify, as in this case, the action against that party survives in state court as an exception to the rule in Albertson.’ (Emphasis added.) 242 Kan. at 865.
“Here, unlike the plaintiff in Anderson, DCI did not make any attempt to join Moore Township or Barber County in the underlying action. Moreover, DCI does not explain its failure to join the governmental entities or suggest that it was otherwise prevented from doing so. While DCI persuasively asserts that the harshness of the one-action rule has been ameliorated, the exception provided in Anderson does not logically apply here.
“Moreover, our review of Mathis and its progeny reveals that those cases also do not control the outcome of the present case. In Mathis, the Supreme Court permitted plaintiff to pursue a second action only in limited circumstances. The court reasoned:
“ ‘After an adjudication of comparative fault, no party should be afforded a second opportunity to litigate percentages of causal negligence. K.S.A. 60-258a certainly contemplates one action in which comparative fault is determined. However, it was never the intent of the legislature or this court to place form over substance and preclude a plaintiff from proceeding against a tortfeasor when there has been no judicial determination of comparative fault. Mathis has been denied his action. TG & Y is not prejudiced by allowing the suit to proceed. It may join other defendants for the purpose of comparing negligence at the trial.’ (Emphasis added.) 242 Kan. at 794.
“There is little doubt that the Albertson court, when it considered the purpose behind K.S.A. 60-258a, anticipated the one-action rule would apply to prevent both plaintiffs and defendants alike from seeking additional recovery in subsequent lawsuits. However, as the one-action rule has evolved, the courts have seem ingly developed a preference for permitting plaintiffs to pursue a second suit against defendants not party to the original action. See, e.g., Childs, 243 Kan. at 441. As the court in Mick recognized, ‘[I]t appears that under the most recent comparative fault cases, namely Mathis, Anderson, and Childs, a plaintiff may pursue separate actions against tortfeasors where there has been no judicial determination of comparative fault. Thus, the exceptions to the one-action rule arise when there has been no prior judicial determination of fault.’ (Emphasis added.) 244 Kan. at 93.
“Relying upon Mick, DCI argues comparative implied indemnity need only be sought from the third party before an apportionment of fault is made in the underlying action. However, in Mick the court prevented plaintiff from pursuing a second action because the juiy had made a determination of comparative fault at trial by denying plaintiff relief. Significantly, Mick involved an attempt by the plaintiff to achieve multiple recovery. Again, DCI cites no authority for its suggestion that this exception to the one-action rule may be extended to defendants.
“Further, we find flaws in DCI’s citation of Schaefer to support its claim that DCI’s cause of action here was preserved because the statute of limitations had not expired. Although this court in Schaefer based its dismissal of the plaintiffs claim on the fact that the third-party defendant was no longer at risk of suit because the statute of limitations had expired, 26 Kan. App. 2d at 403, the Schaefer court did not indicate an intent to permit defending parties to pursue claims for comparative implied indemnity at will. Rather, the court refused to undergo an in-depth analysis regarding whether a claim for comparative implied indemnity was feasible when such a claim would have been barred by the statute of limitations regardless of the outcome.
“Further, while it is tempting to rely upon the district court’s rationale that the basis for denying DCI’s cause of action was the failure to join Barber County and Moore Township pursuant to K.S.A. 60-258a, this conclusion is inappropriate. The purpose of K.S.A. 60-258a is not to impose liability on a joint tortfeasor but to protect a defendant from bearing the entire burden for its nonparty joint tortfeasors. See Ellis, 231 Kan. at 189. K.S.A. 60-258a cannot expand liability to a tortfeasor from whom plaintiff has not sought recovery. See Ellis, 231 Kan. at 191-92 (‘It is inconsistent then to suggest the action of one defendant in settling the claim can broaden another defendant’s liability beyond what it would have been had the case gone to trial.’). Thus, even if DCI had joined Barber County and Moore Township under K.S.A. 60-258a, DCI’s claim for comparative implied indemnity would nevertheless be unavailable.
“Moreover, even if Moore Township and Barber County had been joined in the federal action pursuant to K.S.A. 60-214, DCI could not pursue an action for comparative implied indemnity under Kennedy. As discussed above, the Supreme Court in Teepak expressly limited comparative implied indemnity to cases involving indemnification among those in the chain of distribution, rejecting the notion that a claim was available against all ‘joint tortfeasors.’ 237 Kan. at 328; see also Ellis, 231 Kan. at 184; Blackburn, Inc. v. Harnischfeger Corp., 773 F. Supp. 296, 299 (D. Kan. 1991) (acknowledging that claim for comparative implied indemnity was limited to parties in manufacturer’s chain of distribution and supply or parties in which explicit contract for indemnification or contribution was formed).” Dodge City Implement, Inc., 38 Kan. App. 2d at 357-63.
We also agree with and endorse the panel’s ultimate conclusion on this issue. An action for comparative implied indemnity was not available to DCI and Slattery, and summaiy judgment in favor of the County and Township on this claim was appropriate.
“[W]e interpret Kansas law to require defendants seeking to minimize their liability in comparative fault situations not involving a chain of distribution or similar commercial relationship to do so by comparing the fault of other defendants in order to reduce their own share of liability and damages. If a defendant chooses to settle and obtain release of common liabilities involving other parties whom the plaintiff did not sue, the defendant does not have an action for comparative implied indemnity or post-settlement contribution. This holding recognizes that under Kansas comparative fault procedure such a remedy is not necessary, and further recognizes that such an action defeats the policy of judicial economy, multiplying the proceedings from a single accident or injury.
"The United States District Court for the District of Kansas succinctly summarized the rule from Ellis and Teepak as barring lawsuits between joint tortfeasors when
‘(1) an injured party has previously sued one tortfeasor, but not others, (2) that tortfeasor has settled with the injured party, (3) the injured party has given a full release of all claims held by it, and (4) the settling tortfeasor claims the other tortfeasors caused all or part of the injured party’s damages.” St. Francis Regional Medical Center, Inc. v. Critical Care, Inc., 997 F. Supp. 1413, 1430 (D. Kan. 1997).
“Here, BNSF sued DCI but did not sue Moore Township or Barber County; DCI settled with BNSF; BNSF gave a full release of claims in the settlement agreement; and DCI now seeks to recover from Moore Township and Barber County, alleging those parties caused all or part of BNSF’s injuries. Under these circumstances, we hold the district court properly dismissed DCI’s claim for comparative implied indemnity.” Dodge City Implement, Inc., 38 Kan. App. 2d at 363-64.
In short, the one-action rule of Albertson is alive and well in Kansas. The fact that DCI and Slattery chose to setde BNSF’s claim did not entitle them to status as a clearing house for comparison of fault among potential tortfeasors. They were not entitled to bring a second action against the County and the Township, when the County and the Township had no involvement in the federal case.
Notice Under K.S.A. 12-105b(d)
The second issue raised by DCI and Slattery on this appeal concerns the notice provisions of K.S.A. 2008 Supp. 12-105b(d) — specifically, whether letters sent to the County and the Township were adequate to inform them of the negligence and negligence per se claims seeking damages of $92,313.34.
Interpretation or construction of a statute raises a question of law reviewable on appeal under a de novo standard. Cooper v. Werholtz, 277 Kan. 250, 252, 83 P.3d 1212 (2004). Likewise, this court exercises unlimited review over the construction of a written instrument and the determination of its legal effect. Kennedy & Mitchell, Inc. v. Anadarko Prod. Co., 243 Kan. 130, 133, 754 P.2d 803 (1988).
The statute provides:
“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. The notice shall be filed with the clerk or governing body of the municipality and shall contain the following: (1) The name and address of the claimant and the name and address of the claimant’s attorney, if any; (2) a concise statement of the factual basis of the claim, including the date, time, place and circumstances of the act, omission or event complained of; (3) the name and address of any public officer or employee involved, if known; (4) a concise statement of the nature and the extent of the injury claimed to have been suffered; and (5) a statement of the amount of monetary damages that is being requested. In the filing of a notice of claim, substantial compliance with the provisions and requirements of this subsection shall constitute valid filing of a claim. The contents of such notice shall not be admissible in any subsequent action arising out of the claim. 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. 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, a claimant shall have no less than 90 days from the date the claim is denied or deemed denied in which to commence an action.” K.S.A. 2008 Supp. 12-105b(d).
Any person or entity with a claim against a municipality under the Kansas Tort Claims Act must file a written notice of the claim with the municipality, and the filing of a proper notice is a prerequisite to the filing of an action in district court. If the statutory notice requirement is not met, the court cannot obtain jurisdiction over the municipality. Kau Kau Take Home No. 1 v. City of Wichita, 281 Kan. 1185, Syl. ¶ 2, 135 P.3d 1221 (2006). However, DCI and Slattery are correct that only substantial compliance with K.S.A. 12-105b(d) is necessary. See K.S.A. 12-105b(d). “ ‘Substantial compliance’ ” means “ ‘ “compliance in respect to the essential matters necessary to assure every reasonable objective of the statute.” ’ ” Orr v. Heiman, 270 Kan. 109, 113, 12 P.3d 387 (2000). The statutory objectives are to advise the municipality of the time and place of the injury and to give the municipality an opportunity to ascertain the character and extent of the injury sustained. Bell v. Kansas City, Kansas, Housing Authority, 268 Kan. 208, 210, 922 P.2d 1233 (1999).
The statute lists five categories of information that must be included in the written notice filed with the County’s and the Township’s clerk. They are: (1) The name and address of the claimant and the name and address of the claimant’s attorney, if any; (2) a concise statement of the factual basis of the claim, including the date, time, place, and circumstances of the act, omission, or event complained of; (3) the name and address of any public officer or employee involved, if known; (4) a concise statement of the nature and the extent of the injury claimed to have been suffered; and (5) a statement of the amount of monetary damages that is being requested.
The August 23, 2004, letter to the County stated that the claimant was Continental Western Insurance Company and gave the name and address of one of the company’s subrogation specialists as the contact for more information. The “Factual Basis of the Claim” read:
“On September 8, 2003 at 2:23 p.m., Justin Slattery, while in the course of employment for Dodge City Implement, Inc. and while driving a Dodge City Implement Inc. truck, was struck by a Burlington Northern and Santa Fe Railway Company (BNSF) freight train at the Rattlesnake Trail railroad grade crossing, DOT #014288A in Barber County, Kansas. Such collision caused extensive damage to Dodge City Implement’s truck and cargo and the derailment of BNSF’s train. A contributing cause of this collision was the failure to appropriately maintain railroad crossing signage, specifically advance warning signs. This failure combined with and enhanced the already existing dangerous nature of the crossing resulting from unsafe crossing design, a failure to maintain vegetative growth and earthen obstructions, all of which led to extremely restricted sight distance; permissible train speeds in excess of those safe for the crossing in question, and; an excessively short highway approach forcing drivers approaching the crossing to divert attention away from safely crossing the railroad tracks and toward motor vehicle traffic on the highway. Pursuant to the Railroad Crossing Safety Program Agreement providing for the upgrade and modernization of the Rattlesnake Trail crossing and executed between Barber County and the Kansas Secretary of Transportation of April 14, 1993, Barber County assumed the sole responsibility to maintain the traffic control devices placed on roadways under its jurisdiction. By fading to maintain the advance warning signs placed on Rattlesnake Trail, Barber County breached such duty. As stated above, this breach caused or was a contributing cause of the collision. As Continental Western Insurance Company, the liability insurer of Dodge City Implement, and BNSF have reached a settlement in the amount of $3,000,000.00, Continental Western Insurance Company is now entitled to comparative implied indemnity from Barber County for amounts paid to BNSF on behalf of Barber County as a result of its negligence.”
The “Nature and Extent of Injury [S]uffered” and “Amount of Damages Requested” sections of the letter listed only the damages to BNSF and the settlement amount paid as a result of the federal lawsuit.
The August 12, 2005, letter to the Township also listed Continental Western and its subrogation specialist as the claimant and contact. The “Factual Basis of the Claim” was similar. It read:
“On September 8, 2003 at 2:23 p.m., Justin Slattery, while in the course of employment for Dodge City Implement, Inc. and while driving a Dodge City Implement, Inc. truck, was struck by a Burlington Northern and Santa Fe Railway Company (BNSF) freight train at the Rattlesnake Trail railroad grade crossing, DOT #014288A in Barber County, Kansas. Such collision caused extensive damage to Dodge City Implement’s truck and cargo and the derailment of BNSF’s train.
“The Moore Township had the responsibility and duty to design, construct, and maintain all roads and railroad grade crossings under or within its jurisdiction in a reasonably safe manner. Moore Township breached its duty by failing to maintain the advance warning signs placed on Rattlesnake Trail, permitting vegetative growth and earthen obstructions to obscure visibility of approaching trains at the grade crossing, and designing the road and grade crossing in such fashion that the angle of Rattlesnake Trail’s approach to the railroad grade crossing and the excessively short highway approach between the Rattlesnake Trail grade crossing and Highway K-2 prevented visibility of approaching trains. All of these conditions, together or separately, created a dangerous condition for vehicles crossing the Rattlesnake Trail grade crossing and caused or contributed to the aforementioned accident.
“Following the accident, Continental Western Insurance Company, the liability insurer of Dodge City Implement, and BNSF reached a settlement in which Continental Western Insurance Company paid $3,000,000.00 to BNSF. As a result of such payment, Continental Western Insurance Company is now entitled to comparative implied indemnity from Moore Township for amounts paid to BNSF on behalf of Moore Township as a result of its negligence.”
The “Nature and Extent of Injury [S]uffered” and “Amount of Damages Requested” sections of the Township letter were identical to the corresponding sections in the County letter.
Prior Court of Appeals cases have held that, in order to substantially comply with K.S.A. 12-105b, a plaintiff must attempt to supply information for each of the five categories in the statute if relevant to the facts of tire case; omission of one or more of the categories makes the notice fatally insufficient. See Tucking v. Board of Jefferson County Comm’rs, 14 Kan. App. 2d 442, 446-48, 796 P.2d 1055 (1990) (two categories of information neglected; three others only partially satisfied), rev. denied 246 Kan. 770 (1990); see also Wiggins v. Housing Authority of Kansas City, 19 Kan. App. 2d 610, 613-14, 873 P.2d 1377, rev. denied 255 Kan. 1007 (1994) (second category of information missing).
In this case, the letters listed only Continental Western Insurance Company as the claimant and provided only the name of its agent and its address. Although the letters briefly described the collision of DCI’s truck, driven by Slattery, with BNSF’s train, they did not identify DCI or Slattery as claimants. The letters also did not state that DCI and Slattery were represented by the law firm shown on the letterhead. Finally, the letters told the County and the Township that “Continental Western Insurance Company is now entitled to comparative implied indemnity ... for amounts paid to BNSF” and gave the extent of the amount of the damages as only $3 million, i.e., the amount of the settlement with BNSF, not the amount of that settlement plus the $92,313.34 in damages on the DCI/Slatteiy claims for negligence or negligence per se against the County and Township.
Although we may not agree with a mechanical counting of categories approach to determining substantial compliance with K.S.A. 12-105b(d), we have no hesitation in affirming the Court of Appeals and the district court on this issue. The notice provided to the County and the Township here did not substantially comply with the requirements of K.S.A. 12-105b(d). In essence, the letters identified an incorrect claimant; they did not identify the ultimate plaintiffs in the suit, give their addresses, or set forth the name or address of their counsel. They also did not put the County or the Township on notice of the extent of the damages sought on the negligence or negligence per se claims.
We regard these failures as more than merely technical; they posed serious obstacles to the County’s and the Township’s full investigation and understanding of the merits of the claims advanced. Without such investigation and understanding, the legislature’s obvious desire to facilitate early and easy resolution of claims against municipalities is undermined. The notices did not serve their purpose, and they did not provide the district court with jurisdiction over the negligence and negligence per se claims.
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|
The opinion of the court was delivered by
Johnson, J.:
Karl P. Winkel, Sr., and Karen S. Winkel, Trustees of the Karl P. Winkel, Sr., Trust No. 1, dated July 1, 2004, (Winkel) appeal the summary judgment granted to Debra L. Miller, Secretary of Transportation of the State of Kansas (KDOT), on a petition for injunctive relief and damages. This appeal is a continuation of Winkel’s persistent efforts, commencing in 1994, to stop KDOT’s operation of an asphalt mixing strip near Winkel’s farmstead. Two prior actions were appealed to the Kansas Court of Appeals. See Winkel v. Kansas Dept. of Transp., No. 73,289, unpublished opinion filed March 15, 1996 (Winkel I); and Winkel v. Kansas Dept. of Transp., No. 94,088, unpublished opinion filed April 7, 2006 (Winkel II). In this latest litigation, we affirm the district court’s summary judgment denying any relief to Winkel.
FACTUAL OVERVIEW
Winkel is the current owner of an 80-acre tract of farmland (farm) in Mitchell County that contains a farmstead on the east side of the tract. In 1952, the north/south road on the east side of the farm was rebuilt and a new curve in the road left a triangular-shaped tract of 1.52 acres (“triangle tract”) on the east side of the highway, separated from the remaining acreage on the west side of the highway. The old north/south road on the east side of the triangle tract remained open.
In connection widi the 1952 highway project, a condemnation action established an easement on the triangle tract for a “highway right of way.” However, the owner of the farm continued to conduct farming operations on the triangle tract for decades, until KDOT ordered Winkel to vacate the premises in 1994. That action was prompted by KDOT’s fee simple acquisition of a strip of land adjacent to the triangle tract, on the east side of the old road, to be used as an asphalt mixing strip. KDOT intended to, and subsequendy did, use the triangle tract to support the mixing strip operations, e.g., to store raw materials and park trucks. The old road was used to access the triangle tract and the mixing strip. Unbeknown to the parties, Mitchell County had vacated the old road as a public right of way in 1993, reverting ownership of the west half of the roadway to Winkel. We will refer to the reverted portion of the road as the “access tract.”
In the first lawsuit, Winkel sought to permanently enjoin the operation of the mixing strip and to recover damages. Winkel proceeded on the theories that the mixing strip operations created a nuisance in the form of noise, dust, and odor which interfered with Winkel’s use of the farmstead; that the noise, dust, and odor from the operation were trespassing upon his farmstead; and that an action for inverse condemnation was created by the reduction in value of the farm caused by the adjacent mixing strip.
The district court granted KDOT summary judgment. The Court of Appeals agreed with the district court’s finding “that the interference with [Winkel’s] use of his property was trivial at best and that it did not, as a matter of law, cause substantial and unreasonable interference with the use of his property.” Winkel I, slip op. at 8. Referencing the Notes on Use for PIK Civ. 2d 3.05, Winkel I found that the trial court should not permit a nuisance case to go to the jury, if the evidence shows no more than trivial harm. Further, the Winkel I court agreed with the finding that Winkel had failed to support his trespass claim with any evidence of a direct or tangible invasion of his property by pollutants or dust. Slip op. at 19-20. Finally, Winkel I rejected the inverse condemnation claim because there was simply no evidence of a taking of the remaining acreage by the State of Kansas. Slip op. at 22.
Winkel let the matter rest for several years, during which KDOT continued to operate the mixing strip. In 2003, Winkel filed an action, again seeking to permanently enjoin the mixing strip operation, and asking for a declaratory judgment that KDOT’s use of the property exceeded tire scope of the original highway right of way easement. During discovery, the parties learned that the old road had been vacated, i.e., that Winkel .owned the west half. KDOT acknowledged that it had no easement to use the access tract. Nevertheless, the district court again granted summary judgment to KDOT, finding the use of the triangle tract and access tract to be consistent with the originally condemned easement.
On appeal, Winkel II rejected Winkel’s claim that KDOT’s non-use of the easement for 42 years, from 1952 to 1994, effected an abandonment of the triangle tract easement. Slip op. at 5. Likewise, the Court of Appeals found that G.S. 1949, 68-413 (1951 Supp.) did not require KDOT to obtain a fee simple absolute interest in the triangle tract, contrary to Winkel’s proffered statutory interpretation. Slip op. at 8.
However, given KDOT’s concession that it had no legal interest in the access tract and that it owed Winkel compensation for its use of that land, Winkel II found the district court had erred in finding KDOT’s use of the access tract to be consistent with the original easement. Slip op. at 6. Likewise, the Court of Appeals opined that the applicable statutes differentiated an easement providing access to the materials necessary for highway construction from an easement for the actual roadway; and that KDOT’s mixing strip use placed an additional burden on the servient estate. Therefore, the original highway right of way did not contemplate or include an easement to access or support a mixing strip which provided materials for highways in general. Slip op. at 11-12. Therefore, the district court’s declaratory judgment on those issues was reversed. However, Winkel II affirmed the district court’s denial of injunctive relief, finding that any harm that Winkel had suffered did not outweigh the adverse impact an injunction would have on the public interest and that Winkel had an adequate remedy at law. Slip op. at 14.
Thereafter, failing in its attempt to negotiate a resolution on Winkel’s damages, KDOT filed an eminent domain action to condemn an appropriate easement in both the access tract and the triangle tract. The condemnation petition provided a metes and bounds description of each tract, i.e., it did not purport to condemn the entire farm. The appointed appraisers’ report set the value of the two tracts at $1,773 before the taking and at no value after the taking. Winkel appealed the award, but that action was stayed after Winkel filed a separate action, again seeking an injunction and damages under the recycled theories of nuisance and inverse condemnation.
The district court rejected Winkel’s argument that the current version of K.S.A. 68-413 did not authorize KDOT to condemn an easement, but rather required it to condemn a fee simple absolute interest. Consistent with Winkel II's interpretation of the earlier version of the statute, the district court opined that the statute permitted, but did not require KDOT to condemn a fee simple interest.
The district court also found that KDOT’s use of the two tracts to be lawful and necessary to its public purpose; that KDOT’s eminent domain petition properly described the property being taken; that the measure of damages for the taking can be addressed in the condemnation appeal, precluding the inverse condemnation claim; that Winkel’s nuisance claim is based upon the same allegations of interference which were found to be trivial in Winkel I; that Winkel failed to proffer any evidence of a material change in the mixing strip operations since 1994, other than a cessation of operations from mid-2004 to December 2006; and that the claimed damages in Winkel’s nuisance allegation are permanent in nature, arising in 1994, and are therefore barred by the 2-year statute of hmitations.
On appeal, Winkel challenges KDOT’s exercise of its power of eminent domain, complains that KDOT manipulated the legal description in its condemnation petition, and disputes that the nuisance claim is barred by res judicata, the statute of hmitations, or the statute of repose. We will address Winkel’s issues in the order presented.
POWER OF EMINENT DOMAIN
Winkel’s first issue of whether KDOT properly exercised its statutory power of eminent domain is divided into three parts: (a) Did the district court properly determine on summary judgment that KDOT had established a need for this particular property for its mixing strip? (b) Does KDOT have the authority under K.S.A. 68-413 to acquire an easement to use the land as an asphalt mixing strip? and (c) Can KDOT be enjoined from an improper use of eminent domain?
Standard of Review
The overarching standard of review for an appeal of a summaiy judgment is well estabhshed, but to be complete we repeat it here:
“ ‘ “ ‘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.’ [Citation omitted.]” Mitchell v. City of Wichita, 270 Kan. 56, 59, 12 P.3d 402 (2000) (quoting Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 [1999]).’ State ex rel. Stovall v. Reliance Ins. Co., 278 Kan. 777, 788, 107 P.3d 1219 (2005).” Smith v. Kansas Gas Service Co., 285 Kan. 33, 39, 169 P.3d 1052 (2007).
Necessity
Winkel asserts that KDOT failed to establish, as a matter of law, that the triangle tract and access tract were necessary for its lawful purpose. However, Winkel does not dispute that- an asphalt mixing strip is necessary for the construction and repair of highways, KDOT’s principal mission. Nor does Winkel suggest that KDOT does not need an area to store raw materials, park vehicles, and otherwise support the mixing strip. Rather, Winkel’s complaint is that there were other locations in Mitchell County that KDOT could have used and Winkel should have been given an opportunity to prove that to a jury.
Winkel acknowledges that the courts defer to the reasonable discretion of an agency with eminent domain powers in its determination of the necessity to take land for its lawful corporate purposes. The necessity determination “will not be disturbed on judicial review unless fraud, bad faith, or an abuse of discretion is shown. [Citations omitted.]” Schuck v. Rural Telephone Service Co., 286 Kan. 19, 25, 180 P.3d 571 (2008). Nevertheless, Winkel argues that there was simply no evidence to support KDOT’s determination of necessity. We disagree.
Winkel’s argument evaporates when one considers that the subject eminent domain action does not involve the mixing strip. KDOT had already acquired that land from someone else, and Winkel has no standing to challenge KDOT’s ownership of the mixing strip. The triangle tract, being situated adjacent to the mixing strip, is clearly and obviously the best location in Mitchell County to store raw materials and park vehicles used in the nearby asphalt mixing operation. Winkel’s suggestion that numerous locations, miles away from the mixing strip, would be just as suitable for KDOT’s purposes is counterintuitive; such an offsite location would be, at best, impracticable. Moreover, any argument that the access road is not necessary for KDOT’s purpose is simply nonsensical. That land provides the necessary ingress and egress for the mixing strip. Accordingly, summary judgment on the issue of necessity was not only appropriate, it was mandated by the evidence.
Statutory Authority to Obtain an Easement
Winkel resurrects the curious argument from Winkel II that the applicable statute required KDOT to condemn a fee simple interest, rather than an easement. Given that the appraisers found that the entire value of the two tracts had been taken, the distinction is not compelling. Nevertheless, the Winkel II court held that the prior statute permitted, but did not require KDOT to condemn a fee simple interest. Slip op. at 8. The current statute, K.S.A. 68-413, did not change that law.
The crux of Winkel’s argument is that subsection (b)(4) is a limitation on the rights granted in subsection (a). In relevant part, K.S.A. 68-413 provides:
“(a) Subject to subsection (b), the secretary of transportation, in the name of the state, may acquire title or easement by purchase, dedication or by the exercise of the right of eminent domain: (1) To or upon any lands or interests or rights therein; (2) to water, gravel, stone, sand or other material; (3) to spoil banks or to borrow pits necessary for the construction, reconstruction, improvement, maintenance or drainage of the state highway system; or (4) to access ways to spoil banks or borrow pits or any bed, pit, quarry or other place where gravel, stone, water, or other material required in the construction, reconstruction, improvement, maintenance or drainage of the state highways may be located. The secretary of transportation, in the name of the state, may acquire, by purchase, title to an entire lot, block or tract of land for state highway purposes even though such entire lot, block or tract is not immediately needed for state highway purposes, if the secretary finds that by so doing the interests of the public will be best served, and without limiting the foregoing, the same may be done where uneconomic remnants of land would be left the original owner or where severance or consequential damage to a remainder make the acquisition of the entire lot, block or tract more economical to the state.
“(b)(1) Exercise of the right of eminent domain by the secretary shall be in accordance with and governed by article 5 of chapter 26 of the Kansas Statutes Annotated, and amendments thereto.
(2) Every petition filed by the secretary to acquire lands or any interest in or title thereto by the exercise of the right of eminent domain shall set forth the extent, quantity and nature of the interest or title to be acquired.
(3) Except as otherwise provided in paragraph (4) of this subsection (b), the secretary shall not acquire by eminent domain any right, title or interest in or to the oil and gas minerals under or in any lands, and the petition in any condemnation proceedings shall state that right, title or interest in or to such oil and gas minerals is not being condemned.
(4) The secretary may acquire by eminent domain the fee simple title to lands when such lands are acquired for sites for the construction of buildings or improvements necessarily incident to the operation, maintenance and supervision of a state system of highways.”
Statutory interpretation is a function of law over which this court has unlimited review. Genesis Health Club, Inc. v. City of Wichita, 285 Kan. 1021, 1031, 181 P.3d 549 (2008). The first step is to ascertain legislative intent from the plain language employed in the statute. See Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007).
Here, the legislature used the word “may” in subsection (b)(4), whereas in subsections (b)(1), (2), and (3) it used the word “shall.” The statute’s plain language creates a presumption that the legislature intended to make the acquisition of a fee simple interest under subsection (b)(4) permissive, i.e., at KDOT’s option.
Winkel’s answer to the plain language interpretation is to suggest that, because subsection (a) permits KDOT to acquire an easement, subsection (b)(4) would be superfluous if it likewise permitted the acquisition of an easement. A cursory reading of the statute reveals the fallacy of the argument. Subsection (a) addresses the property which may be acquired, while subsection (b) principally speaks to the extent, quantity, and nature of the interest or title that may be acquired in that property.
Moreover, subsection (b)(3) specifically precludes the acquisition of “any right, title or interest in or to the oil and gas minerals under or in any lands.” K.S.A. 68-413. Obviously, if KDOT acquires land without the minerals interest, it has not acquired a fee simple interest. However, the minerals interest prohibition in subsection (b)(3) is prefaced by the statement, “[e]xcept as otherwise provided in paragraph (4) of this subsection (b).” K.S.A. 68-413. Thus, subsection (b)(4) serves the purpose of allowing KDOT to acquire a fee simple interest, i.e., including the minerals interests, in land that it will use for the purposes described in that subsection. Therefore, subsection (b)(4) is not superfluous, and we will apply it exactly as it is written. KDOT was not required to condemn a fee simple interest in Winkel’s land.
Availability of Injunction for Improper Use
Winkel uses this issue to attack our long-standing precedent, recently reiterated in Schuck, 286 Kan. at 24, that injunctive relief will not be granted if there is an adequate remedy at law. Winkel argues that, as a practical matter, such a rule precludes injunctive relief ever being granted in a condemnation proceeding, because all takings are compensable with money damages. Accordingly, Winkel warns us that the practical result of the adequate remedy at law rule is that condemning agencies will have no incentive to comply with the eminent domain statutes because they can just do whatever they want, so long as they pay value for any property wrongfully taken.
KDOT counters that this court has, in fact, enjoined the inappropriate use of eminent domain by a public utility, citing to McGinnis v. Kansas City Power & Light Co., 231 Kan. 672, 647 P.2d 1313 (1982). In McGinnis, this court held that if the utility could not show compliance with statutory regulations for exercising its power of eminent domain, the injunctive relief issued by the district court should remain in place. 231 Kan. at 685.
We decline Winkels invitation to engage in a theoretical debate on the public policy considerations of dechning to grant injunctive relief in hypothetical scenarios. This case does not present an indiscriminate and obviously wrongful taking for an unnecessary pur pose. Indeed, the case highlights the rationale for exercising restraint in granting injunctive relief.
Before Winkel acquired ownership of the triangle tract, it was encumbered by an easement for highway right of way purposes. KDOT had a legally established dominant estate in the property, whereas Winkel’s interest was the servient estate. One might be curious whether Winkel’s predecessor in title received compensation for that easement equivalent to the total fair market value of the 1.52 acres in 1952, i.e., whether the landowner has already been fully paid for the land. Nevertheless, KDOT’s use of the triangle tract to support its mixing strip was based upon a claimed legal right, emanating from its existing easement, which was neither frivolous nor contrary to any existing case precedent. In such a circumstance, the appropriate and legally sound remedy for KDOT’s misreading of its legal rights to the property is to pay the landowner such additional compensation as may be appropriate for the increase in burden on the servient estate occasioned by the change in its use.
Likewise, both parties were laboring under the misconception that the access tract was dedicated to the public’s use as a roadway, i.e., Winkel was not possessing or using that land. To Winkel, the only practical change in circumstances is that KDOT will have the sole right to use the roadway, instead of everyone using it as such. Under that scenario, Winkel cannot show that irreparable future injury is likely; that his injury, if any, outweighs the damage of an injunction; or that the injunction would not be adverse to the public interest. See Schuck, 286 Kan. at 24. To the contrary, any money damages Winkel receives for the .45 acre, half a roadway, will be more than an adequate remedy.
In short, Winkel has not persuaded us that we need to change the entire body of law in this State that makes the existence of an adequate remedy at law a factor in assessing whether injunctive relief is appropriate.
LAND DESCRIPTION/INVERSE CONDEMNATION
Next, Winkel complains that KDOT manipulated the condemnation appraisers by the manner in which the land was described in the petition. KDOT listed the legal description of the two tracts being taken. Winkel believes the petition should have, in some manner, described the tracts as being a part of the whole farm, so that the appraisal report would have included the reduction in value on the remaining approximately 78 acres occasioned by the taking of the two, physically separated tracts. Therefore, Winkel included a claim for inverse condemnation, seeking the alleged devaluation of the remaining land.
K.S.A. 68-413(b)(2) directs that every condemnation petition filed by the Secretary of Transportation “shall set forth the extent, quantity and nature of the interest or title to be acquired.” Here, KDOT precisely complied with that statute. See also K.S.A. 26-502 (contents of eminent domain petition). Winkel’s complaint about the condemnation petition is unfounded.
Likewise, Winkefs purported claim for inverse condemnation is unavailing. Winkel I clarified that Winkel did not have an action for inverse condemnation for any reduction in value of the remaining land caused by KDOT’s operation of the asphalt mixing strip, i.e., the noise, odor, dust, or pollution from the operations did not effect a taking of the remaining land. Any compensable reduction in the remaining land’s value must flow directly from the taking of the easements on the triangle and access tracts. The damage caused by KDOT’s taking is the subject of the existing formal condemnation proceedings. “An inverse condemnation proceeding ... is available when private property has been taken for public use without the initiation of formal condemnation proceedings by the governmental taker.” (Emphasis added.) Schuck, 286 Kan. at 28. This rule is well established. See Kau Kau Take Home No. 1 v. City of Wichita, 281 Kan. 1185, 1189, 135 P.3d 1221 (2006) (inverse condemnation action arises when formal condemnation proceedings have not been filed); Nat’l Compressed Steel Corp. v. Unified Gov’t of Wyandotte County/Kansas City, 272 Kan. 1239, 1245, 38 P.3d 723 (2002) (inverse condemnation action “available only where private property has been actually taken for public use without formal condemnation proceedings and it appears that there is no intention or willingness of the taker to bring such proceedings”); Deisher v. Kansas Dept. of Transportation, 264 Kan. 762, 766, 958 P.2d 656 (1998) (“ ‘[A]n inverse condemnation proceeding is a substitute for a formal condemnation proceeding. It is not a supplement for a formal proceeding that does not yield all of the satisfaction that a landowner desires.’ ”). Accordingly, summary judgment denying Winlcel’s inverse condemnation claim was appropriate.
Winkel’s real complaint is with the manner in which the appraisers valued the land. He contends that they treated the case as being a taking of two entire tracts, rather than a partial taking from a larger tract. The appraisers were instructed on K.S.A. 26-513, which sets forth guidance for valuing condemned land. Part of that instruction is that if an entire tract of land is taken, the measure of compensation is the fair market value of the property at the time of taking. K.S.A. 26-513(b). However, if only a part of a tract of land is taken, the compensation and measure of damages is the difference between the fair market value of the entire property before the taking, and the value of that portion of the tract which remains immediately after the taking. K.S.A. 26-513(c). However, the appraisers sent mixed signals as to the measure of damages they were employing.
In their report, the appraisers noted that they had begun the process “by actual view of the lands to be taken and of the tracts of which they are a part.” Further, they submitted a value for the two tracts before taking and a value after taking. This suggests that the appraisers were treating this case as a partial taking under K.S.A. 26-513(c). However, they only submitted a dollar amount for the pre-taking value of the two tracts, standing alone, which suggests an entire taking under K.S.A. 26-513(b). If they had considered the two tracts as being taken from the entire farm, the appraisal should have set forth a value for the entire farm (including the 2 acres to be taken) before the taking and the value of the approximately 78 remaining acres after the taking.
Of course, any valuation of the triangle tract, whether standing alone or included in the entire farm, should have taken into consideration that it was already encumbered by a highway right of way easement. Likewise, one might debate whether land which has previously been partially taken and physically separated from the remaining farm continues to be a part of the larger tract.
Nevertheless, the bottom-line question is the amount of just compensation to be paid for the land or the interest therein being taken by KDOT, which is the sole issue now pending in Winkel’s appeal of the condemnation award. K.S.A. 26-508. Winkel is free to challenge the appraisers’ methodology or valuation in that proceeding. A separate inverse condemnation action is neither necessary nor permissible.
PRECLUSION OF NUISANCE CLAIM
Winkel challenges the district court’s finding that the nuisance claim was barred by the statute of hmitations and makes the preemptive argument that res judicata and the statute of repose are inapplicable, as well. The arguments present issues of law, subject to de novo review. See, e.g., Stanfield v. Osborne Industries, Inc., 263 Kan. 388, 396, 949 P.2d 602 (1997), cert. denied 525 U.S. 831 (1998) (application of doctrine of res judicata a legal question).
With respect to the statute of limitations, the district court analyzed whether the claimed nuisance was temporary or permanent. The cases attempting to make that distinction are not always easy to reconcile. See Dougan v. Rossville Drainage Dist. 270 Kan. 468, 477, 15 P.3d 338 (2000) (although drainage ditch was a permanent structure, the flooding caused thereby was a temporary nuisance); Isnard v. City of Coffeyville, 260 Kan. 2, 11, 917 P.2d 882 (1996) (storm sewer was permanent nuisance from which future damages due to flooding could be reasonably determined). We perceive that we need not muddy those waters to resolve this case.
Nearly 13 years ago, our Court of Appeals ruled that, as a matter of law, the noise, odor, and dust created by KDOT’s operation of the asphalt mixing strip did not create a substantial and unreasonable interference with Winkel’s right to enjoy his property. Winkel I, slip op. at 17. In 2003, Winkel again sought to enjoin KDOT’s operation of the asphalt mixing strip, albeit on other theories. In this recycled nuisance claim, Winkel presents essentially the same complaints that were litigated in Winkel I, modified only slightly to include unsupported allegations of “ground and possibly water contamination.”
“The doctrine of res judicata (or claim preclusion) prohibits a party from asserting in a second lawsuit any matter that might have been asserted in the first lawsuit.” Stanfield, 263 Kan. at 397. Res judicata prevents relitigation where the following requirements are met: “ ‘(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 persons for or against whom claim is made.’ ” Waterview Resolution Corp. v. Allen, 274 Kan. 1016, 1023, 58 P.3d 1284 (2002) (quoting Regency Park v. City of Topeka, 267 Kan. 465, 478, 981 P.2d 256 [1999]).
Winkel is suing KDOT for the third time to stop the mixing strip operations, i.e., the parties involved and the relief sought are identical. Winkel I involved the identical cause of action, i.e., a nuisance claim alleging that KDOT’s mixing strip operations interfered with Winkel’s farmstead use and devalued the remaining 78 acres of the farm. In Winkel II, Winkel had all of the information necessary to challenge KDOT’s operations subsequent to the first lawsuit, i.e., a nuisance claim could have been asserted.
Winkel justifies the relitigation of this issue by alleging that the number of days that KDOT actually operated the mixing strip during the period from 1994 to 2004 exceeded the 17 days per year of predicted use relied upon in the 1994 lawsuit. In other words, Winkel apparently suggests that he has a new and independent cause of action for nuisance based upon new facts. We disagree.
In an affidavit, Karl Winkel stated that a diary of KDOT’s use of the property had been kept since 1994, except for a 2-year period from late 1999 to early 2002. He relies on the diary as the proof that the interference with his farmstead use is now substantial and unreasonable. The record reflects the following use: March to December 1994 — 94 days; 1995 — 54 days; 1996 — 25 days; 1997 — 59 days; 1998 — 24 days; March to October 1999 — 27 days; 2002 — 34 days; 2003 — 27 days; 2004 — 28 days.
We agree with the district court that Winkel has not established a material change in the circumstances, since the nuisance claim was originally litigated. Winkel’s assertion that the Winkel I opinion was premised upon only 17 days of operation is inaccurate. That court actually said that “the asphalt plant in question is operated only occasionally and may be operated as few as 17 days a year.” (Emphasis added.) Winkel I, slip op. at 15. Moreover, the decision recited the district court’s finding that “ ‘[t]he hauling in and mixing of road repair material takes approximately twenty (20) days per year. In addition, the repair aggregate is hauled out on an intermittent basis.’ ” (Emphasis added.) Slip op. at 6-7. Pointedly, Winkel’s affidavit does not separately note how many of the days of recorded use involved the hauling out of repair aggregate, i.e., that were in addition to the operation of the mixing strip, as contemplated by the trial court.
Even viewing the evidence in a light most favorable to Winkel, KDOT’s use of the triangle tract after 1994 was within the parameters of the occasional and intermittent operation contemplated by Winkel I. Winkel’s affidavit does not support an argument that KDOT’s subsequent use of the property has materially increased so as to support a new and independent action for nuisance. Winkel I’s holding that the harm created by the asphalt mixing strip is trivial remains valid. The district court correctly granted summary judgment in favor of KDOT.
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The opinion of the court was delivered by
Rosen, J.:
Christopher D. Gant appeals to this court from his conviction and sentence for one count of felony murder, K.S.A. 21-3401(b), and one count of attempted aggravated robbery, K.S.A. 21-3427. Jurisdiction lies with this court under K.S.A. 22-3601(b)(1).
On March 20, 2006, Gant drove three other men, Jeremy Miles, Kendrall Ransom, and Karlan Ransom to a house on North Lorraine Street in Wichita, Kansas. The men had previously armed themselves, and Gant believed they were “going to go probably rob somebody and get the money.” After noting that they might have been observed, Kendrall Ransom directed. Gant to drive them to a house on North Kansas Street. There they saw Donta McDonald leave the house and walk to a truck in the driveway. Gant and the other occupants of the car approached the truck, and Gant heard the other men demand money. After malting the demand for money, the men saw McDonald reach under the seat of his truck, at which time one of the men fired two shots from a shotgun, killing McDonald.
Gant and the other men returned to their car without taking any money from McDonald. Gant drove them back to the house on North Lorraine, where they observed people walking in and out of the house. Gant announced that he had to pick up his child and needed to leave, and he drove them to another address. Watching the 10 p.m. news that night, Gant learned a murder had also been committed on North Lorraine after he had left the other men.
On June 7, 2006, the State filed an information charging Gant, Miles, and the Ransoms each with one count of felony murder in the death of McDonald and one count of attempted aggravated robbery. The other defendants were also charged with various additional crimes, including felony murder in the death of Christopher Spain Rey.
A juiy found Gant guilty of both counts, and the district court sentenced him to a term of life imprisonment for the felony murder and a consecutive term of 34 months in prison for the attempted aggravated robbery. He took a timely notice of appeal.
Gant initially argues that the district court erroneously admitted certain statements of his into evidence because he had requested counsel prior to a custodial interview.
During an interview with Detective Timothy Relph and Detective Heather Rachman conducted early in the morning of March 26, 2006, Gant explained in detail his role in the shootings. The interview with police detectives was apparently videotaped, but the tape is not included in the record on appeal, and the record contains no transcript of the interview. The record shows that Gant confirmed that he provided the transportation for all the men to the scenes of both murders. He acknowledged that they brought firearms with them and that he was carrying a firearm at the scene of McDonald’s murder.
Gant filed a motion to suppress the interview statements. The district court conducted an evidentiary hearing to determine whether Gant requested an attorney and whether he waived his right to an attorney before or during the interview.
The district court heard testimony that police waited outside an apartment complex and observed a man who they believed was Gant going back and forth between the complex and a car. He and two women then got into the car. The police approached the car, pointed service weapons at Gant, and told him to keep his hands in plain view and get out of the car. As Gant was getting out of the car, the police overheard him calling out to the women that he loved them, that he loved his children, that he was sorry, that they were to call another individual, and that they were to call a lawyer.
The arresting officer testified that Gant did not request that the police call a lawyer. One of the women in the car, who was Gant’s girlfriend and the mother of one of his children, testified that Gant told the police that he wanted to talk to a lawyer. Gant testified that, after the police handcuffed him outside his car, they informed him of his rights, and he requested a lawyer. He testified that he again requested a lawyer when he got into the police car.
The arresting officer explained to the interviewing detectives that Gant had requested that his female companions call a lawyer. Before interviewing Gant at the police department, Detective Bachman read him his Miranda rights. Gant informed her that he understood each of his rights, and he placed his initials next to the enumerated rights written on a card. He told the detectives that he was ready to speak with them at that time, and he signed the card. Gant conceded that he did not tell the interviewing detectives that he wanted to speak to a lawyer.
The district court found it “more probably true than not that the defendant made a statement to the two ladies in the car about contacting a lawyer.” The court concluded that Gant did not tell the police that he wanted to speak to a lawyer or that he would not answer questions without speaking to a lawyer first — “there was no unambiguous request for counsel.” The court noted that Gant and his girlfriend had a personal interest in testifying that he requested an attorney at the time of his arrest; the court also noted that Gant did not request counsel at the time that he was interviewed, that he specifically waived his right to counsel at the time of the interview, and that he had significant experience with the arrest and interview process.
When reviewing a district court ruling on a motion to suppress a confession, an appellate court reviews the factual underpinnings of the decision under a substantial competent evidence standard. The ultimate legal conclusion drawn from those facts is reviewed de novo. The appellate court does not r'eweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence. State v. Brown, 285 Kan. 261, 271-72, 173 P.3d 612 (2007).
The Fifth Amendment to the United States Constitution provides defendants in criminal prosecutions with protection from self-incrimination, protection that includes the right to have an attorney present during custodial interrogation and the right to remain silent pursuant to Miranda v. Arizona, 384 U.S. 436, 479, 16 L. Ed. 2d 694, 86 S. Ct. 1602, reh. denied 385 U.S. 890 (1966). A suspect may invoke the Miranda right to counsel at any time, requiring at a minimum “some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police.” McNeil v. Wisconsin, 501 U.S. 171, 178, 115 L. Ed. 2d 158, 111 S. Ct. 2204 (1991). The suspect must articulate the.request for counsel with sufficient clarity that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney, and the request must be for counsel to be present at the custodial interrogation, not for subsequent hearings or proceedings. State v. Walker, 276 Kan. 939, 945, 80 P.3d 1132 (2003) (citing Davis v. United States, 512 U.S. 452, 459, 129 L. Ed. 2d 362, 114 S. Ct. 2350 [1994], and McNeil, 501 U.S. at 178).
When a suspect makes a statement that might be ambiguous as to whether the suspect is asserting a right to remain silent or to confer with an attorney, the interrogator is permitted to ask clarifying questions but is not required to clarify the ambiguous statement. State v. Gonzalez, 282 Kan. 73, 106, 145 P.3d 18 (2006).
. Gant asks this court to reweigh the district court’s finding that his request for counsel was directed to the women in the car instead of to police. Substantial evidence supports the district court’s finding. Gant was presumably not telling the police that he loved them, that he loved his children, that he was soriy, and that they were to call another individual; it was reasonable to assume that his connected statement requesting that someone obtain a lawyer for him was also not directed to the police. The request was at best ambiguous. The arresting officer testified that Gant made no other request for counsel; his testimony was substantial and competent.
In addition, Gant made no unambiguous request for counsel to assist him at a custodial interrogation. He was being taken into custody at gunpoint at the time he asked the occupants of his car to call an attorney, and no interrogation took place until later at the police department. When the interrogation began, detectives went over his Miranda rights with him, and he explicitly waived them.
It is inappropriate for this court to reweigh the evidence, and the district court’s legal conclusions were soundly based on the evidence before it.
Gant next argues that his trial was improperly prejudiced by Detective Bachman’s proximity to the prosecution prior to her testimony. It appears from a passing reference during trial testimony that Detective Bachman sat at the end of the table with counsel for the State. The issue was not preserved through a contemporaneous objection and is not properly before this court.
When the defendant has lodged an objection, the standard of review for a decision by a district court to allow a witness to sit at the table with counsel is abuse of discretion. State v. Kirkpatrick, 286 Kan. 329, 342-43, 184 P.3d 247 (2008). Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. State v. Reed, 282 Kan. 272, 280, 144 P.3d 677 (2006).
When a constitutional or a statutory right is involved, the discretion of the district court is limited. Under those circumstances, there is a greater need for the trial judge to articulate the reasons for any discretionary decision. In re Adoption of R.G.J., 281 Kan. 552, 563, 133 P.3d 1 (2006). When the issue is not raised to the district court, however, the trial judge does not have the opportunity to articulate reasons for the discretionary decision. Constitutional grounds for reversal asserted for the first time on appeal are therefore not properly before the appellate court for review. State v. Gaudina, 284 Kan. 354, 372, 160 P.3d 843 (2007).
Gant fads to proffer any specific evidence suggesting that his defense was prejudiced by Detective Bachman’s presence at the prosecution table. In fact, it is unclear from the record how long the witness sat at the prosecution table or what her proximity was to counsel. Although it is the “better practice” to discourage law enforcement witnesses from sitting at the prosecutor’s table during a jury trial, the practice does not constitute per se abuse of discretion. Kirkpatrick, 286 Kan. at 343. In the absence of any specific allegations of prejudice, Gant does not raise an issue stating reversible error. The issue is not properly before this court.
Notwithstanding the imposition of a life imprisonment sentence for the felony-murder conviction, an off-grid person felony, Gant next challenges the constitutionality of his “aggravated” sentence for his attempted aggravated robbery conviction, contending that imposition of the high end of the sentencing grid without submitting to a jury the grounds for an aggravated sentence violates constitutional provisions for trial by jury.
This court has recently addressed this issue and has taken a position adverse to Gant’s argument: “A sentence to any term within the range stated in a Kansas sentencing guidelines presumptive grid block does not violate Cunningham v. California, 549 U.S. 270, 166 L. Ed. 2d 856, 127 S. Ct. 856 (2007), or Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).” State v. Johnson, 286 Kan. 824, Syl. ¶ 5, 190 P.3d 207 (2008); see State v. Cook, 286 Kan. 1098, Syl. ¶ 8, 191 P.3d 294 (2008); State v. Gallegos, 286 Kan. 869, Syl. ¶ 10, 190 P.3d 226 (2008).
The trial court did not err in sentencing Gant to the high end of the grid box sentence on his attempted aggravated robbery conviction.
In addition to the argument raised by his counsel, this court granted Gant leave to file a supplemental brief on his own behalf. He argues that the jury received insufficient evidence to sustain his convictions.
Gant argues that he did not approach the victim, he did not attempt to take property from the victim, he did not harm the victim, and he did not have a weapon when the victim was murdered and he, therefore, cannot be found guilty of either murder or attempted robbery.
When a defendant challenges the sufficiency of the evidence in a criminal case, the standard of review is whether, after reviewing all the evidence, viewed in the fight 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. Gutierrez, 285 Kan. 332, 336, 172 P.3d 18 (2007).
A person is criminally responsible for a crime committed by others if that person intentionally aids and abets another in the commission of that crime. A person who aids and abets in committing the crime may be charged either as a principal or as an aider and abettor. State v. Green, 254 Kan. 669, 687, 867 P.2d 366 (1994). The element of intent necessary to obtain a conviction for aiding and abetting may be inferred from circumstantial evidence. State v. Goering, 225 Kan. 755, Syl. ¶ 2, 594 P.2d 194 (1979)
The district court instructed the jury on a theory of aiding and abetting:
“A person who, either before or during its commission, intentionally aids or abets another to commit a crime with intent to promote or assist in its commission is criminally responsible for the crime committed regardless of the extent of the defendant’s participation, if any, in the actual commission of the crime.”
Abundant evidence supported the jury’s finding that Gant aided and abetted the commission of felony murder and attempted aggravated robbery. In his statements to police, Gant said he knew that the group of men intended to carry out a robbeiy. He drove the car to the scene of the initial intended robbery, intending to drive them away at the conclusion of a robbery. He drove the men to the scene of the murder and drove them away after one of the men shot the victim. He acknowledged that he was carrying a loaded .40-caliber handgun. He also acknowledged that he was not threatened by the other men, and he was not afraid that they would harm him if he did not drive them where they wanted to go.
Acting as the driver of a vehicle transporting other perpetrators to and from the commission of a crime may suffice to support a conviction for aiding and abetting the commission of the crime. See Goering, 225 Kan. at 758; State v. Burton, 35 Kan. App. 2d 876, 881, 136 P.3d 945, rev. denied 282 Kan. 792 (2006); State v. Percival, 32 Kan. App. 2d 82, 95, 79 P.3d 211 (2003), rev. denied 277 Kan. 927 (2004).
The evidence before the jury more than sufficed to support his. convictions based on aiding and abetting.
Gant finally argues that the district court erred when it sentenced him for felony murder before it accepted a plea from another defendant that did not include a felony-murder charge. He submits that it was fundamentally unfair for the district court to try and sentence him for felony murder, when another perpetrator, Jeremy Miles, subsequently agreed to plead guilty to other charges in exchange for the State dismissing felony-murder charges against him.
It is unclear how the district court was to take into account at sentencing a sentence not yet imposed on another defendant who had not yet entered a guilty plea. When a defendant is convicted of felony murder and his accomplices plead guilty to less serious offenses, there is no rational basis for comparing their sentences and the district court is under no requirement to explain disparities among the sentences. State v. Gleason, 277 Kan. 624, 656, 88 P.3d 218 (2004). It would be improper to require a district court to take into account a conviction and sentence not yet entered against an other defendant when imposing its sentence on the subject defendant.
Gant also contends that he should have been offered the same kind of plea agreement to which Miles agreed, and the State’s failure to do so constituted discriminatory or selective prosecution.
In order to assert a defense of discriminatory prosecution, a defendant must show that others who are similarly situated are generally not prosecuted for conduct similar to the conduct for which the defendant is being prosecuted and that the defendant has been intentionally and purposefully singled out for prosecution on the basis of arbitrary or invidious criteria. State ex rel. Murray v. Palmgren, 231 Kan. 524, 528, 646 P.2d 1091 (1982). An allegation of discriminatory prosecution grounded only on speculation and lacking evidence in the record supporting the claim fails to meet a defendant’s burden to show prejudicial error. State v. Castoreno, 255 Kan. 401, 413-14, 874 P.2d 1173 (1994); State v. Bailey, 251 Kan. 527, 530, 834 P.2d 1353 (1992).
Gant points to no evidence showing what plea agreements were offered to him or what the conditions of Miles’ plea agreement were. He also offers no evidence tending to prove that the State singled him out for prosecution based on arbitrary or invidious criteria. His only claim is based on the fact that Miles entered into a plea agreement after Gant was convicted, and this does not constitute proof of discriminatory prosecution.
Finding no reversible error, we affirm both convictions and Gant’s sentence for attempted aggravated robbery.
McFarland, C.J., not participating.
Marquardt, J., assigned. | [
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The opinion of the court was delivered by
Johnson, J.:
Galen Youngblood appeals his conviction and sentence for possession of hallucinogenic drugs, as a second offense. He claims that the prior misdemeanor conviction used to elevate the severity level of his current crime from a misdemeanor to a felony was unconstitutionally obtained without counsel or a valid waiver of counsel. Accordingly, Youngblood contends that the district court erred in convicting him of a felony in the current case. Finding the prior conviction to be constitutionally infirm, we reverse and remand.
FACTUAL AND PROCEDURAL OVERVIEW
In September 2004, Harvey County Sheriff s Department officers arrested Youngblood for driving on a suspended license. At the detention center, he was caught trying to discard a pipe, which subsequently tested positive for marijuana. The State charged Youngblood with driving while suspended, possession of drug paraphernalia, and possession of marijuana. Because of a prior misdemeanor possession of marijuana conviction in the Newton Municipal Court, the current possession of marijuana was charged as a felony pursuant to K.S.A. 65-4162(a), which provides:
“Except as otherwise provided, any person who violates this subsection shall be guilty of a class A nonperson misdemeanor. If any person has a prior conviction under this section, a conviction for a substantially similar offense from another jurisdiction or a conviction of a violation of an ordinance of any city or resolution of any county for a substantially similar offense if the substance involved was marijuana or tetrahydrocannabinol as designated in subsection (d) of K.S.A. 65-4105 and amendments thereto, then such person shall be guilty of a drug severity level 4 felony.”
Youngblood filed a motion to dismiss the felony possession of marijuana count. He argued that because the municipal court conviction was uncounseled and he had not waived his right to counsel in municipal court, its use to enhance the marijuana charge from a class A misdemeanor to a drug severity level 4 felony violated his Sixth Amendment rights. The State conceded that the prior conviction was uncounseled but argued that Youngblood had waived his right to counsel in municipal court.
On February 15, 2005, the district court conducted a hearing on the motion to dismiss. Youngblood presented the municipal court docket sheet, a printed form on which the boxes for showing attorney representation and waiver of counsel were left blank in his case. The State submitted a waiver of attorney form from the mu nicipal court proceedings which had been signed by Youngblood. However, the form was dated November 1, 2004, which was over 3 weeks after Youngblood had been sentenced on the marijuana charge and after he had served 5 days in jail on a consolidated driving under the influence (DUI) charge.
The trial court took the matter under advisement so that it could review the case law cited by the parties. On February 28, 2005, the trial court issued a letter stating that it would allow the State to reopen the hearing on the motion. The court opined that the State had the burden of showing that the prior misdemeanor conviction was constitutionally obtained and that the new hearing was being offered to afford the State an opportunity to meet its burden. The court noted that, unless the State presented new evidence, the court could not find that the burden had been met.
The State got its second chance hearing on March 9, 2005. It presented the testimony of City of Newton Municipal Court Judge Brad Jantz. Judge Jantz testified that it was his practice to always discuss the waiver of counsel with defendants, but that he had no independent recollection of the actual discussion with Youngblood.
The trial court also heard evidence as to whether Youngblood actually served jail time as a consequence of the previous marijuana conviction. Judge Jantz testified that he had sentenced Youngblood to 6 months in jafl on the possession of marijuana charge, and he believed that sentence was imposed consecutively to the DUI sentence. Youngblood was to serve the mandatory 5 days on the DUI conviction before being placed on probation on all of the charges in the case. On February 24, 2005, Youngblood’s probation had been revoked and reinstated for 1 year, but he was ordered to spend an additional 2 days in jail.
Ultimately the trial court denied the motion to dismiss. The district court interpreted the case law as requiring the actual service of jail time to trigger the Sixth Amendment right to counsel. The court further opined that it was irrelevant that Youngblood had served actual jail time for his probation revocation, because at the original sentencing, he had been placed on probation. Additionally, the district court was persuaded by Judge Jantz’ testimony that he always inquires about waiver of counsel.
The district court conducted a bench trial on September 1,2005, based on stipulated evidence, which included the evidence presented at both hearings on the motion to dismiss. The trial court found Youngblood guilty of possession of hallucinogenic drugs, a second or subsequent offense, in violation of K.S.A. 65-4162(a)(3), a drug severity level 4 felony. Youngblood timely appealed, and the Court of Appeals affirmed his conviction.
We granted Youngblood’s petition for review on the issue of whether the district court erred by enhancing the marijuana possession charge to a felony based upon a prior uncounseled municipal court conviction. The question has two components: (1) Whether Youngblood effectively waived his right to counsel in the municipal court prosecution; and (2) if not, whether the uncounseled municipal court conviction was unconstitutional so as to preclude its use to enhance the severity level of the crime in the subsequent prosecution.
WAIVER OF COUNSEL
“ ‘[T]he [S]tate has the burden of showing that an accused was advised of his right to counsel, either retained or appointed, and that waiver of counsel was knowingly and intelligently made.’ ” In re Habeas Corpus Application of Gilchrist, 238 Kan. 202, 208, 708 P.2d 977 (1985) (quoting State v. Daniels, 2 Kan. App. 2d 603, 605-06, 586 P.2d 50 [1978]). As the State acknowledges in its brief, a waiver of counsel may not be presumed from a silent record. See State v. Allen, 28 Kan. App. 2d 784, 788, 20 P.3d 747 (2001); Daniels, 2 Kan. App. 2d at 607.
Initially, the State submitted the post-dated waiver form to establish that Youngblood had waived counsel in the municipal proceeding. However, at the second hearing on Youngblood’s motion to dismiss, the State focused on arguing that the right to counsel did not attach to the possession of marijuana charge in municipal court, rather than pursuing the argument that Youngblood had effectively waived his right to counsel. At that second hearing, the prosecutor did not ask the municipal judge a single question about the purported waiver.
However, the district court made its own inquiries about the waiver. In response to the district court’s question as to what the municipal judge could tell the court about the waiver form which was signed after Youngblood had served his DUI jail time, the witness responded, “Very little.” The municipal judge went on to say that occasionally a waiver form is filled out but not signed by an individual. In that case, the court will attempt to correct the oversight by having the form signed as soon as possible. The district court confirmed that the municipal judge did not dispute that the waiver form had been signed by both the judge and Youngblood on November 1, 2004, well after the plea hearing.
The municipal judge also answered in the affirmative to the district court’s question: “Would it have been your practice at the time of the plea to ask if he waived counsel?” Pointedly, the district court did not inquire as to what the municipal judge would have advised Youngblood about his right to counsel, prior to asking whether he wished to waive it.
Defense counsel asked the municipal judge whether he had any independent recollection of whether Youngblood waived counsel on the day he pled or whether he waited to waive counsel until he signed the waiver form on November 1. The judge responded that he had “the general gist of the conversation with Mr. Youngblood in going through the standards, having done it hundreds of times with that inquiry but in terms of the exact quote of what he said, no. I don’t.” Again, no clarification was sought as to what “standards” the witness was referring or the nature and extent of the “inquiry” the municipal judge had made hundreds of times.
In Gilchrist, decided nearly two decades before Youngblood’s municipal court appearance, this court clarified that the trial court must do more than simply ask a criminal defendant if he or she wants to waive counsel. “[T]he trial judge must advise the defendant of his right to counsel in 'clear and unequivocal language.’ ” 238 Kan. at 207. Moreover, a “ ‘person must be informed of the right to retained or appointed counsel before he or she can make a knowing and intelligent waiver of counsel.’ ” 238 Kan. at 207 (quoting Daniels, 2 Kan. App. 2d at 607).
Apparently, the State would have us accept on faith that the municipal judge’s standard procedure includes sufficiently informing the defendant of his or her rights, so as to meet the criteria for a valid waiver. However, Gilchrist stressed the need to have either a record of tire court proceedings in which a criminal defendant waives the right to counsel or a written waiver of counsel “for the purpose of proving an accused was properly advised of his rights and that he knowingly and intelligently waived those rights.” 238 Kan. at 210.
With respect to municipal courts which are not courts of record, Gilchrist recognized the impracticability of a requirement that every waiver of counsel be recorded, but strongly urged municipal courts to obtain a written waiver. 238 Kan. at 209. The opinion went so far as to provide a suggested waiver of counsel form. 238 Kan. at 212. The benefit of such a practice is poignantly illustrated here. If the written waiver form had been executed at the plea hearing, we could be assured that Youngblood had received the advice to which he was due, e.g., that he had a right to have an attorney represent him in defending the case and that if he could not afford an attorney and he was found indigent, one would be appointed for him.
Perhaps an argument could be made that Youngblood’s subsequent signing of the waiver form was an admission that he had waived his right to counsel at the plea hearing. Cf. Gilchrist, 238 Kan. at 207-08 (finding defendant’s later admission as to the truth of municipal judge’s, testimony on the circumstances of the waiver supported a finding that the waiver was valid). That argument would be more compelling if the municipal judge had testified that Youngblood read the waiver form or that it was read to him at the plea hearing, i.e., that Youngblood had received advice on his right to counsel. It is not enough to show that Youngblood, after the fact, corroborated that he had waived counsel. The State must also prove that the initial waiver was properly obtained after appropriate advice as to the right to counsel, i.e., that the plea hearing waiver was knowingly and intelligently made. A post-sentencing written waiver will not legitimize an invalid pre-plea waiver.
Accordingly, we affirm the Court of Appeals’ holding that the State failed to carry its burden of proving that Youngblood was advised of his right to counsel and that a waiver of counsel was knowingly and intelligently made.
USE OF UNCOUNSELED MISDEMEANOR CONVICTION
The district court’s principal ruling was that Youngblood did not have a right to counsel on the possession of marijuana conviction in the municipal court because he was placed on probation for that charge; his initial 5 days’ incarceration and the subsequent 2 days in jail for probation violation were attributable solely to the DUI conviction. The court opined that it made no difference that Youngblood’s sentence included a term of incarceration which could be served if he subsequently violated the terms of his probation. Rather, the trial court interpreted precedent as establishing that the right to counsel in a misdemeanor case arises only when the misdemeanant is unconditionally ordered at the sentencing hearing to actually serve time in jail. Then, apparently relying on State v. Delacruz, 258 Kan. 129, 899 P.2d 1042 (1995), die district court found that the constitutionally obtained uncounseled misdemeanor conviction could be used to enhance the severity of the current crime under K.S.A. 65-4162(a).
In Delacruz, the defendant challenged the criminal history score used to establish his Kansas Sentencing Guidelines Act (KSGA) sentence for a felony drug conviction. The criminal history calculation had included the aggregation of three prior misdemeanor battery convictions to score as one person felony, pursuant to K.S.A. 1994 Supp. 21-4711(a). All three were alleged to be uncounseled municipal court convictions. For two of the misdemeanor convictions, the sentence was a fine, but no jail time. But for the third conviction, Delacruz was sentenced to 90 days in jail with the requirement that he serve 30 days, in addition to a fine. One of Delacruz’ arguments on appeal was that the uncounseled misdemeanor convictions could not be collaterally used to enhance the sentence for the subsequent felony drug conviction because that would result in his serving additional jail time for the felony based solely upon the uncounseled misdemeanors, which were inherently unreliable convictions.
Delacruz began its analysis by pointing out that not all defendants charged with a misdemeanor have the constitutional right to counsel first enunciated in Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d. 799, 83 S. Ct. 792 (1963). In Scott v. Illinois, 440 U.S. 367, 373-74, 59 L. Ed. 2d 383, 99 S. Ct. 1158 (1979), the United States Supreme Court held that an uncounseled misdemeanor conviction is constitutionally valid if the offender is not incarcerated. Scott was based on Argersinger v. Hamlin, 407 U.S. 25, 37, 32 L. Ed. 2d 530, 92 S. Ct. 2006 (1972), which had recognized that actual imprisonment is a penalty different in kind from fines or threats of imprisonment. Thus, actual imprisonment was the bright-line demarcation between constitutional and unconstitutional uncounseled misdemeanor convictions. See Delacruz, 258 Kan. at 132.
Delacruz then looked at the collateral use of uncounseled misdemeanor convictions, noting that Baldasar v. Illinois, 446 U.S. 222, 64 L. Ed. 2d 169, 100 S. Ct. 1585 (1980), was decided a year after Scott. In Baldasar, the United States Supreme Court held that a prior uncounseled misdemeanor theft conviction could not be used to elevate a subsequent theft conviction to a felony under a state’s repeat offender severity level enhancement law, even though the prior conviction did not result in actual imprisonment. 446 U.S. at 227-28. Baldasar reasoned that the defendant received an increased term of imprisonment in the subsequent case solely because of the prior uncounseled conviction. 446 U.S. at 227.
However, the United States Supreme Court subsequently reversed itself in Nichols v. United States, 511 U.S. 738, 128 L. Ed. 2d 745, 114 S. Ct. 1921 (1994). Adopting the rationale from the dissent in Baldasar, Nichols held that a prior uncounseled conviction which was valid under Scott, i.e., where the defendant had not been actually incarcerated, “may be relied upon to enhance the sentence for a subsequent offense, even though that [later] sentence entails imprisonment.” Nichols, 511 U.S. at 746-47. Nichols reasoned that enhancement statutes, whether criminal history provisions of sentencing guidelines or recidivist statutes, do not change the penalty imposed for the earlier conviction, but rather only pe nalize the last offense committed by the defendant. 511 U.S. at 747. Further, the opinion stated that its holding was also consistent with the traditional understanding of the sentencing process in which judges are permitted to consider a wide variety of factors. Those factors include not only a defendant’s prior convictions, but also “a defendant’s past criminal behavior, even if no conviction resulted from that behavior.” 511 U.S. at 747.
Delacruz embraced Nichols’ rationale and declared:
“We conclude the use of an uncounseled misdemeanor conviction that does not result in incarceration may be used in determining a defendant’s criminal history under the Kansas Sentencing Guidelines even though it has the effect of enhancing his or her sentence under the guidelines. [Citation omitted.] Prior uncounseled misdemeanor convictions under Scott are constitutional where no jail time is imposed. If such convictions are constitutional, those convictions should and do remain constitutional in subsequent proceedings under the KSGA. . . . While the uncounseled misdemeanor is used to enhance the present sentence, the sentence imposed does not increase the penalty for that misdemeanor, and the defendant is being punished based on his current charge — a charge and proceeding where he is represented by counsel.” 258 Kan. at 135-36.
Applying its holding, Delacruz noted that the sentence on the third conviction included actual jail time, but that the record before the court did not definitively establish whether Delacruz had been represented by counsel or had waived his right to counsel. Therefore, the case was remanded to the district court for a hearing on that issue. The district court was instructed that if the State was unable to establish by a preponderance of the evidence that Delacruz was either represented or had waived representation, the third battery conviction could not be included in.his criminal history and the court must resentence him accordingly. In other words, while a constitutionally obtained uncounseled misdemeanor conviction can be used to enhance a subsequent sentence, an unconstitutionally obtained uncounseled misdemeanor conviction cannot be used for that collateral purpose. See Delacruz, 258 Kan. 129, Syl. ¶ 4.
After this court’s decision in Delacruz, Alabama v. Shelton, 535 U.S. 654, 152 L. Ed. 2d 888, 122 S. Ct. 1764 (2002), expanded, or at least clarified, the circumstances under which the right to counsel would arise in a misdemeanor prosecution. In that case, after Shelton was convicted of a misdemeanor without benefit of counsel, the trial court sentenced him to a 30-day jail term, but immediately suspended the jail term and placed him on probation for 2 years. On direct appeal, the Alabama Supreme Court opined that a suspended sentence constitutes a term of imprisonment within the meaning of Argersinger and Scott, even though actual incarceration is not immediate or inevitable. Accordingly, the Alabama court reversed and vacated the 30-day suspended jail time portion of the sentence, although it upheld Shelton’s conviction and fine. The United States Supreme Court affirmed Alabama’s decision, holding “that a suspended sentence that may ‘end up in the actual deprivation of a person’s liberty’ may not be imposed unless the defendant was accorded ‘the guiding hand of counsel’ in the prosecution for the crime charged.” Shelton, 535 U.S. at 658.
Our Court of Appeals acknowledged the holding in Shelton, but perceived that the narrow issue decided by that case was “whether a defendant may be jailed absent a counseled conviction.” State v. Youngblood, No. 96,850, unpublished opinion filed April 25,2008, slip op. at 6. The Court of Appeals focused on a portion of the Shelton majority opinion that distinguished Nichols as applying a less exacting standard. The rationale being that the sentencing court in Nichols’ subsequent case could have imposed a more severe sentence based on evidence of the underlying conduct, even without the previous conviction. Given that Nichols was distinguishable from Shelton and that Delacruz was based on Nichols, the Court of Appeals opined that Delacruz was still good law after Shelton and mandated an affirmance of the district court. The Court of Appeals’ reliance on an isolated portion of the Shelton opinion, which was lifted out of context, is misplaced.
First, the portion of Shelton quoted by the Court of Appeals was a supplementary rationale for rejecting the argument of amicus curiae that Nichols helped answer the question of whether the Sixth Amendment permits activation of a suspended sentence upon the defendant’s violation of the terms of probation. 535 U.S. at 662-63. That is not the question before us. Moreover, the supplementary rationale proffered in the federal context would not be applicable under Kansas law, because evidence of Youngblood’s underlying conduct, standing alone, would not have permitted sentence enhancement. K.S.A. 65-4162(a) requires a “prior conviction.” Likewise, “[c]riminal history categories contained in the sentencing guidelines grid for nondrug crimes and the sentencing guidelines grid for drug crimes are based on . . . prior convictions.” (Emphasis added.) K.S.A. 21-4710(a). In short, the portion of Shelton upon which the Court of Appeals relied does not affect the case before us.
More importantly, the Court of Appeals’ determination that Delacruz remains good law, by itself, does not answer the question before us. Delacruz, and its controlling authority, Nichols, focused on the collateral use of a valid, albeit uncounseled, prior misdemeanor conviction, i.e., whether collaterally using a constitutionally valid uncounseled conviction to enhance a subsequent felony sentence constituted a new and independent Sixth Amendment violation. However, the question that Youngblood presents is whether, pursuant to the holding in Shelton, his Sixth Amendment right to counsel was violated in municipal court when the prior conviction was initially obtained, prior to its collateral use. If so, Delacruz clearly would not have allowed the unconstitutional conviction to be collaterally used. 258 Kan. 129, Syl. ¶ 4 (permitting use of tainted prior conviction for sentence enhancement would undermine principle of Gideon). Moreover, it would be counterintuitive to find that a conviction’s unconstitutionality could be cured through a subsequent collateral use.
We turn, then, to what Shelton tells us about the constitutionality of Youngblood’s municipal court misdemeanor conviction. The critical holding in Shelton dealt with the stage at which the Sixth Amendment right to counsel arises for a misdemeanant receiving a suspended or probated jail time sentence. Youngblood, like Shelton, received a jail sentence which was suspended with probation.
The Shelton dissent would have found that the imposition of a suspended or conditional sentence does not deprive the defendant of his or her personal liberty, so that the right to counsel would not arise until the State attempted to activate the suspended sentence and imprison the defendant. 535 U.S. at 676. However, the majority found “that the Sixth Amendment inquiry trains on the stage of the proceedings corresponding to Shelton’s Circuit Court trial, where his guilt was adjudicated, eligibility for imprisonment established, and prison sentence determined.” 535 U.S. at 665. The majority noted that the issue at any subsequent probation revocation hearing to activate the suspended sentence would be whether the defendant breached the terms of probation; the validity or reliability of the underlying conviction would be beyond attack. 535 U.S. at 666. Therefore, the majority opined:
“We think it plain that a [probation revocation] hearing so timed and structured cannot compensate for the absence of trial counsel, for it does not even address the key Sixth Amendment inquiry: whether the adjudication of guilt corresponding to the prison sentence is sufficiently rehable to permit incarceration. Deprived of counsel when tried, convicted, and sentenced, and unable to challenge the original judgment at a subsequent probation revocation hearing, a defendant in Shelton’s circumstances faces incarceration on a conviction that has never been subjected to ‘the crucible of meaningful adversarial testing,’ United States v. Cronic, 466 U.S. 648, 656[, 80 L. Ed. 2d 657, 104 S. Ct. 2039] (1984). The Sixth Amendment does not countenance this result.” Shelton, 535 U.S. at 667.
Therefore, the majority was “[satisfied that Shelton is entitled to appointed counsel at the critical stage when his guilt or innocence of the charged crime is decided and his vulnerability to imprisonment is determined.” 535 U.S. at 674. Likewise, Youngblood was entitled to counsel when the municipal court found him guilty and sentenced him to a jail term, even though the jail time was conditioned upon probation. The denial of that right to counsel renders the uncounseled misdemeanor conviction in municipal court unconstitutional under the Sixth Amendment. Accordingly, the unconstitutional conviction could not be collaterally used in district court for sentence enhancement. Youngblood’s conviction for felony possession of hallucinogenic drugs is reversed.
Judgement of the Court of Appeals is reversed. Judgement of the district court is reversed and remanded. | [
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The opinion of the court was delivered by
ROSEN, J.;
Eric D. Hoffman appeals from his convictions for one count of first-degree felony murder, one count of aggravated burglary, and one count of aggravated battery. His trial and conviction were the end result of the following series of events.
Aaron Wood moved to Eureka, Kansas, in August 2005, with his fiancee and their daughter. They moved in with the Welches’, his fiancée’s aunt and uncle. Hoffman and Wood became friends. About a month later, Wood accused another friend, Stacy Morton, of telling Wood’s fiancée that Wood had been unfaithful to her, and tension developed between the two men.
On the evening of September 8, 2005, Hoffman, Wood, and Morton met at the Welches’, where Wood challenged Morton to a fight. Hoffman approached Morton, and Morton stepped away, calling Hoffman a “nigger” or a “faggot.” Hoffman pursued Morton and punched him in the jaw, knocking him down. The police were summoned, but Morton declined to identify the parties involved.
A little over a month later, on October 11, 2005, Hoffman and Wood visited a couple of bars together. They then walked by Morton’s home, where they saw Morton and another man, James Spoon, outside. Hoffman and Wood approached the door and briefly spoke with Morton. Morton then invited Hoffman and Wood, inside, and Spoon left shortly afterwards.
Inside the house, Hoffman, Wood, and Morton began to fight. Hoffman used brass knuckles to punch Morton in the ribs, and Wood hit Morton several times and slammed Morton’s head into a wall a couple of times. After 5 to 10 minutes, Hoffman and Wood left Morton’s home. When they left, Morton was “all right,” talking to them, and walking around.
Hoffman and Wood met up at a bar and then went to another bar, where they drank beer and where Wood consumed methamphetamine. They decided to return to Morton’s home and “beat him up some more.”
On the way, they broke out the window of a delivery truck, with Hoffman first striking it with his brass knuckles and Wood then putting his elbow through the glass. They then encountered an acquaintance, P.J. Harriger, and told him they were going to beat someone up. Harriger followed them to Morton’s home and watched Hoffman run to the back of the house while Wood approached the front door. Harriger then walked away from the scene.
Wood used a black folding knife to cut Morton’s telephone line. Hoffman attempted to cut the cable line with a knife with an Indian design; when he was unsuccessful, Wood cut the line with his knife. Wood then broke in the locked door. They entered the house through the kitchen, where Hoffman picked up a knife from a counter.
They found Morton asleep on a futon in the living room. Hoffman approached Morton and began to stab him repeatedly with the kitchen knife. Hoffman then handed the kitchen knife to Wood, who stabbed Morton another six or seven times, while Hoffman continued to stab Morton with his Indian-design knife. After-wards, Hoffman attempted to cut Morton’s throat.
At some point during the attack, Hoffman may have picked up a 2-foot-long stick that was lying by the futon and hit Morton over the left eye with it. Wood testified that Hoffman used the stick in the second attack but conceded it might have been during the fight earlier that day.
Hoffman and Wood left Morton’s house, taking the kitchen knife and stick with them. They also disabled Morton’s cordless telephone and threw it in the yard. As they left, they saw Harriger, who ran away from them. They chased Harriger home; later, they telephoned him and threatened to hurt him if he reported what he had seen.
Hoffman and Wood eventually made their way to Crystal Strickler’s apartment. Wood asked her whether he could borrow her car. Although she said no, he took the car anyway. Wood drove Hoffman home and then parked the car several blocks from Strickler’s apartment. He threw Morton’s kitchen knife on the top of a nearby building and then walked back-to the Welches’.
Morton’s girlfriend discovered Morton’s dead body the next morning and called the police. The police questioned Wood, who claimed to know nothing about Morton’s death and requested an attorney. The police interviewed Hoffman a number of times. He initially insisted he was only a spectator during the second visit to Morton’s home, when he watched Wood hit and kick Morton, who was still speaking and ambulatory when they left. By his fifth interview, he acknowledged hitting Morton on the head with the stick and conceded he might have caused some of the stab wounds.
Subsequent searches and disclosures by Wood produced an Indian-design knife at Hoffman’s home, a black folding knife at the Welches’ house, a hand-carved club from a house into which Wood was moving, and a kitchen knife recovered from the place where Wood said he had thrown it.
The autopsy report disclosed signs of blunt-force trauma to Morton’s head, a broken jaw, stab wounds to his neck and torso, and defensive wounds to his hands and forearms. The autopsy examiner concluded that the cause of his death was “[mjultiple blunt force injuries and then also multiple sharp force injuries,” with both types of injuries contributing equally to his death.
Wood entered a guilty plea to first-degree felony murder, and the State dismissed charges of aggravated burglary, aggravated battery, and felony theft. He received a sentence of life with the possibility of parole after 20 years.
A jury found Hoffman guilty of first-degree felony murder, aggravated burglary, and aggravated battery. The district court sentenced him to life imprisonment for murder, with consecutive terms of 41 months for burglary and 32 months for battery. He filed a timely notice of appeal.
Hoffman initially argues that the district court erred in failing to instruct the jury on a lesser included crime of involuntary manslaughter. He contends the jury could have concluded from the evidence before it that Morton’s death was the end product of a misdemeanor instead of a felony. He suggests the jury could have found that Hoffman entered Morton’s house with the intention of committing a simple battery, thereby resulting in a misdemeanor burglary, which would not support a felony murder conviction.
Hoffman did not object to the jury instructions as they were presented. If a defendant does not object to the trial court’s giving or failure to give an instruction on lesser included offenses, it is reversible error only if the giving of the instruction or the failure to give the instruction was clearly erroneous. State v. Engelhardt, 280 Kan. 113, 134, 119 P.3d 1148 (2005).
When the defendant fails to request a lesser included offense instruction, the failure to give the instruction is clearly erroneous “only if the appellate court reaches a firm conviction that, had the instruction been given, there was a real possibility the jury would have returned a different verdict. [Citation omitted.]” State v. Simmons, 282 Kan. 728, 741, 148 P.3d 525 (2006).
The duty to instruct on a lesser included offense arises only when evidence supports the lesser crime. The evidence of the lesser crime does not have to be strong or extensive as long as the jury might reasonably infer the lesser crime from that evidence. The court must give such an instruction even if the evidence is weak and inconclusive and consists solely of the testimony of the defendant. State v. Kirkpatrick, 286 Kan. 329, 334, 184 P.3d 247 (2008).
This general rule is abrogated in felony-murder cases:
“ ‘ “When murder is committed during the commission of a felony, the rule requiring instructions on lesser included offenses does not apply. The felonious conduct is held tantamount to the elements of deliberation and premeditation which are otherwise required for first-degree murder. It is only when the evidence of the underlying felony is weak, inconclusive, or conflicting that instructions on lesser included offenses may be required.” [Citation omitted.]’ ” 286 Kan. at 334-35 (quoting State v. Calvin, 279 Kan. 193, 201-02, 105 P.3d 710 [2005]).
The district court instructed the jury on first-degree premeditated murder, first-degree felony murder committed in the course of an aggravated burglary, second-degree intentional murder, second-degree unintentional murder, and involuntary manslaughter. The jury found Hoffman guilty of felony murder.
The aggravated burglaiy charge was predicated on the theory that Hoffman entered Morton’s home with the intent to commit aggravated battery. Aggravated battery is a felony and consists of intentionally or recklessly causing great bodily harm or causing bodily harm with a deadly weapon or in a manner that could inflict great bodily harm, disfigurement, or death. K.S.A. 21-3414. Hoffman contends the evidence was weak and inconclusive that he intended to commit aggravated battery when he entered Morton’s house. He predicates this argument on a reasonable conclusion that he returned to Morton’s residence only to beat Morton up again, not to commit an aggravated battery.
Hoffman theorizes that the jury could have found him guilty of involuntary manslaughter based on the commission of a misdemeanor: the jury could have found that he broke into Morton’s house with the intent to commit a simple battery, an underlying crime insufficient to support an aggravated burglary. Such a finding could then produce an involuntary manslaughter conviction based on the unintentional killing of a human being committed while in the commission of a misdemeanor enacted for the protection of human life or safety. See K.S.A. 21-3404(b).
The juiy was instructed that, in order for it to convict him of involuntaiy manslaughter, the State would have to prove Hoffman unintentionally killed Morton in a reckless fashion. The instruction did not refer to the possibility that the killing was committed unintentionally during the commission of a misdemeanor.
The evidence supporting aggravated burglary was, however, neither weak nor inconclusive. The evidence included the fact that Hoffman took brass knuckles and a pocket knife with him to Morton’s house, cut Morton’s telephone and cable lines before entering the house, and picked up a kitchen knife before entering the room in which Morton was sleeping. Hoffman had already been to Morton’s house and beaten him severely; he stated on the way to the second attack that he was going to “beat him up some more.” In combination, this strong circumstantial evidence showed that Hoffman intended to commit an aggravated batteiy. See State v. Griffin, 279 Kan. 634, 638-39, 112 P.3d 862 (2005) (intent to commit aggravated burglary may be inferred from surrounding circumstances).
The decision by the district court not to instruct the juiy on a theoiy of involuntary manslaughter that would include the commission of a misdemeanor did not constitute clear error.
Hoffman next argues the State failed to present sufficient evidence to convict him of felony murder because the coroner was unable to demonstrate conclusively that Morton died as the result of a stab wound. The autopsy report was inconclusive as to whether blows or stabbing caused Morton’s death. Hoffman argues that, because Morton was struck on the head repeatedly during the first visit, those blows could have caused his death. If those blows caused his death, then the death was not the result of the aggravated burglaiy that supported the felony-murder conviction.
“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 the defendant guilty beyond a reasonable doubt.” State v. Gutierrez, 285 Kan. 332, 336, 172 P.3d 18 (2007).
To support a felony-murder conviction, all that is required is proof that a felony was being committed, that the felony was inherently dangerous to human life, and that the following homicide was a direct result of the commission of that felony. State v. Sophophone, 270 Kan. 703, 714, 19 P.3d 70 (2001).
Morton was still alive when the second attack began and attempted to block the stabbing with his arms. During the second attack, Hoffman and Wood repeatedly stabbed and beat Morton and attempted to cut his throat. Morton apparently died during the course of the attack or soon afterwards. Even if the earlier beating might have eventually resulted in Morton s death, the second attack was clearly the direct cause of his death.
A defendant is liable for a death that occurs during the commission of a felony unless an extraordinary intervening event supercedes the defendant’s act and becomes the sole legal cause of death. State v. Jackson, 280 Kan. 541, 547, 124 P.3d 460 (2005). The death in the present case occurred during the course of the felony and was the direct result of Hoffman’s actions; no extraordinary event intervened between the second attack and Morton’s death.
The evidence sufficed to establish felony murder beyond a reasonable doubt.
Hoffman next argues that the district court committed reversible error by admitting evidence under K.S.A. 60-455 showing that he and Morton had fought prior to the day of the murder. Over his pretrial objection, the district court allowed the jury to hear testimony that Hoffman had struck Morton about 1 month before the murder as evidence relating to the relationship of the parties. Hoffman did not repeat the objection at trial. He now contends the evidence served only to persuade the jury that he was the kind of person who was likely to engage in violence, against Morton, and the evidence lacked relevant probative value for demonstrating that he actually committed the crimes with which he was charged.
When the trial court denies a motion in limine, the moving party must object at trial to the admission of the evidence to preserve the issue for appeal. State v. Ross, 280 Kan. 878, 881, 127 P.3d 249, cert. denied 548 U.S. 912 (2006); K.S.A. 60-404. Hoffman made no contemporaneous objection, and the issue is not properly before the court.
In addition, an appellant has the burden of furnishing a record that affirmatively shows prejudicial error occurred in the trial court. Without such a record, the allegation of error fails. State v. Paul, 285 Kan. 658, 670, 175 P.3d 840 (2008). The district court order overruling the motion to suppress stated that the evidence was admissible to prove the relationship between the parties “for reasons set forth more fully in the record.” In the absence of a record, it is impossible to determine what relevance the district court found and whether the district court weighed the probative value against the potential for creating undue prejudice.
Because the issue was not properly preserved and because we have no means to review the district court’s analysis, we cannot conclude that the admission of the testimony relating to the prior fight constitutes reversible error.
For his next argument, Hoffman contends the district court committed reversible error by allowing the State to introduce certain autopsy photographs.
The State offered photographic exhibits 52, 53, and 56, which showed Morton’s cranial cavity, his brain, and his laiynx. Hoffman objected at trial, and the district court overruled the objection. He contends on appeal that the photographs were gruesome, repetitive, and prejudicial.
The standard of review for the admission of photographic evidence requires that the appellate court first determine whether the photos are relevant. If a party argues that the photographs are overly repetitious, gruesome, inflammatory, or otherwise prejudicial, the standard of review is abuse of discretion. State v. Sappington, 285 Kan. 176, 194-95, 169 P.3d 1107 (2007).
Photographs depicting the extent, nature, and number of wounds inflicted are generally relevant in murder cases. State v. Adams, 280 Kan. 494, 510, 124 P.3d 19 (2005). Although they may sometimes be gruesome, photographs that aid a pathologist in explaining the cause of death are relevant and admissible. State v. Cavaness, 278 Kan. 469, 477, 101 P.3d 717 (2004); State v. Deal, 271 Kan. 483, 493, 23 P.3d 840 (2001). The State has the burden of proving all the elements of the crime charged, and photographs used to prove the elements of the crime, including the fact and manner of death and the violent nature of the crime, are relevant and admissible even if the cause of death is not contested. Sappington, 285 Kan. at 195; State v. Bell, 273 Kan. 49, 53, 41 P.3d 783 (2002). This court has held, however, that admitting such photographs is error when the they do not help explain or supplement the testimony but instead serve to “inflame the minds of the members of the jury.” State v. Boyd, 216 Kan. 373, 377, 532 P.2d 1064 (1975).
The photographs in the present case were introduced as part of the testimony explaining the autopsy procedures and conclusions. The photograph of the skull was introduced in order to demonstrate the presence of multiple fracture lines that might not appear on X-rays. The photograph of the brain was introduced to demonstrate hemorrhaging and swelling resulting from blunt-force trauma. The photograph of the larynx was introduced to illustrate the stabbing injury to the epiglottis.
Hoffman contends that the photographs repeated other photographs showing the locations of injuries and that they are so gruesome as to inflame the jury’s passion against him. A review of the photographs, however, does not show that they are extreme or gruesome. The photographs were introduced for the legitimate purpose of showing the cause of death in a case in which the cause of death was an issue at trial and remains an issue on appeal. Although other evidence, including photographs, was introduced suggesting that Morton died from blows to the head and knife wounds, the photographs at issue provided supplemental evidence relating to the specific causes of death. The district court did not err in admitting the photographs.
Finally, Hoffman contends that cumulative trial errors require reversal.
Cumulative trial errors, considered collectively, may be so great as to require reversal of a defendant’s conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found under the cumulative error rule if the evidence is overwhelming against a defendant. State v. Nguyen, 285 Kan. 418, 437, 172 P.3d 1165 (2007).
Cumulative error will not be found when the record fails to support the errors raised on appeal by the defendant. State v. Davis, 283 Kan. 569, 583, 158 P.3d 317 (2007); State v. Jones, 283 Kan. 186, 218, 151 P.3d 22 (2007). One error is insufficient to support reversal under the cumulative effect rule. Nguyen, 285 Kan. at 437.
No errors of substance that were properly preserved occurred during the course of the trial. In addition, the evidence was overwhelming that Hoffman committed felony murder. There is no prejudicial cumulative error warranting reversal in this case.
The conviction is affirmed. | [
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The opinion of the court was delivered by
Davis, J.:
Mitchell Davis appeals from the district court’s summary denial of his motion to correct an illegal sentence under K.S.A. 22-3504, claiming that the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq., shortened his parole eligibility date for offenses he committed in January 1992. Thus, he claims that his sentence does not conform to the governing statutory provisions. We conclude that the KSGA, which was enacted in 1993, has no application to Davis’ 1992 sentence and affirm.
Facts
Mitchell Davis was convicted in May 1992 of attempted first-degree murder, aggravated burglary, aggravated robbery, aggravated battery, and two counts of unlawful possession of a firearm. He was sentenced to a term of 40 years to life in prison. This court affirmed his convictions and sentence. State v. Davis, 255 Kan. 357, 874 P.2d 1156 (1994).
In July 2007, Davis filed a motion to correct an illegal sentence, claiming that he was eligible for an earlier parole date based upon amendments to the statute under which he was sentenced — in particular, by the enactment of the KSGA in 1993. Davis claimed that his current sentence — 40 years to life, with parole eligibility in 20 years — was illegal and did not conform to the governing statutory provisions because a person sentenced for the same offenses today would receive a different sentence, with earlier parole eligibility, under the KSGA.
The district court denied his motion, ruling that the defendant’s sentence was not illegal and that the statute in effect at the time of the defendant’s original sentencing, K.S.A. 22-3725, governs his parole eligibility date.
Davis filed a timely appeal. Because the maximum term for Davis’ sentence is life imprisonment, this court has original appellate jurisdiction under K.S.A. 22-3601(b)(1). See State v. Thomas, 239 Kan. 457, Syl. ¶ 2, 720 P.2d 1059 (1986) (jurisdiction over appeal of motion to correct an illegal sentence lies with court that had jurisdiction to hear original appeal).
Standard of Review
The question of whether a sentence is illegal under K.S.A. 22-3504 raises an issue of law over which this court has unlimited review. State v. Jones, 279 Kan. 809, 810, 112 P.3d 123 (2005).
Discussion and Analysis
An illegal sentence, as contemplated by K.S.A. 22-3504, is a sentence “imposed by a court without jurisdiction; one that does not conform to the statutory provisions, either in the character or the term of the punishment authorized; or one that is ambiguous with respect to the time and manner in which it is to be served. [Citations omitted.]” Jones, 279 Kan. at 810. This court has repeatedly held that relief under K.S.A. 22-3504(1) should be granted only in these veiy limited circumstances. See State v. Edwards, 281 Kan. 1334, 1336, 135 P.3d 1251 (2006).
Davis committed the offenses that led to his convictions in January 1992 — before the adoption of the KSGA. See K.S.A. 21-4704 (setting forth the sentencing grid for nondrug crimes committed on or after July 1, 1993). K.S.A. 22-3725(a) allocates good time credits for pre-KSGA crimes “[e]xcept as otherwise provided for crimes committed by inmates on or after July 1,1993, for the purpose of determining an inmate’s eligibility for parole or conditional release, regardless of when the inmate was sentenced or committed the crime for which sentenced.” The table in K.S.A. 22-3725 shows that a person who has received a 40-year minimum sentence is parole eligible in 20 years. This period has not changed since Davis was convicted in 1992. Compare K.S.A. 22-3725 (current statute) with K.S.A. 1991 Supp. 22-3725 (statute in effect when Davis committed the underlying offenses). His current sentence conforms to these provisions.
Nevertheless, Davis bases his claim of illegality on K.S.A. 1991 Supp. 22-3717(n), which provides that “[a]n inmate shall be eligible for parole on the date provided by statute at the time the inmate committed the crime for which imprisoned unless subsequent amendment of the statute provides an earlier parole eligibility date.” According to Davis’ argument, parole eligibility should be determined by the KSGA (which was adopted after his conviction), not K.S.A. 22-3725. Davis provides no support for this argument other than the text of K.S.A. 1991 Supp. 22-3717(n).
K.S.A. 1991 Supp. 22-3717(n) provides that an inmate shall be eligible for parole on the date provided by statute at the time the inmate committed the crime for which imprisoned unless subsequent amendment of the statute provides an earlier parole eligibility date. Contrary to Davis’ arguments, the references in K.S.A. 1991 Supp. 22-3717(n) to “the statute” relate to an inmate’s parole eligibility under K.S.A. 22-3725, not the length of an inmate’s sentence under K.S.A. 21-4704 (the current nondrug grid under the KSGA). The plain language of K.S.A. 21-4704(a) indicates that this statute, as part of the KSGA, applies “in felony cases for crimes committed on or after July 1, 1993.” (Emphasis added.) Davis’ crimes were committed a year and a half before July 1, 1993. His argument that the KSGA altered his parole eligibility date is without merit. The district court correctly determined that his sentence is not illegal and denied his motion under K.S.A. 22-3504.
Affirmed.
McFarland, C.J., not participating.
Marquardt, J., assigned. | [
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Per Curiam:
This is an original contested proceeding in discipline filed by the Disciplinary Administrator against respondent, J. Gregory Swanson, of Liberal, an attorney admitted to the practice of law in Kansas in 1974.
A hearing panel of the Kansas Board for Discipline of Attorneys conducted an evidentiary hearing and found that Swanson violated nine rules of the Kansas Rules of Professional Conduct (KRPC):
KRPC 1.1 (2008 Kan. Ct. R. Annot. 400) (competence);
KRPC 1.3 (2008 Kan. Ct. R. Annot. 415) (diligence);
KRPC 1.4 (2008 Kan. Ct. R. Annot. 432) (communication);
KRPC 1.5 (2008 Kan. Ct. R. Annot. 448) (fees);
KRPC 1.16(a)(3) and (d) (2008 Kan. Ct. R. Annot. 508) (declining or terminating representation);
KRPC 3.2 (2008 Kan. Ct. R. Annot. 525) (expediting litigation);
KRPC 4.1 (2008 Kan. Ct. R. Annot. 552) (truthfulness in statements to others);
KRPC 8.1 (2008 Kan. Ct. R. Annot. 579) (bar admission and disciplinary matters); and
KRPC 8.4(c) (2008 Kan. Ct. R. Annot. 586) (misconduct).
In addition, the hearing panel concluded that Swanson violated Supreme Court Rule 207(b) (2008 Kan. Ct. R. Annot. 295) (duties of the bar and judiciary) and Supreme Court Rule 211(b) (2008 Kan. Ct. R. Annot. 313) (formal hearings).
After issuing a preliminary hearing report in which the panel made findings regarding these violations, the hearing panel allowed the parties 14 days to forward a written closing argument and make recommendations as to the appropriate discipline. In response, the Disciplinary Administrator recommended that Swanson be indefinitely suspended from the practice of law, and Swanson sought an admonition. The panel unanimously adopted the Disciplinary Administrator’s position, recommending this court indefinitely suspend Swanson from the practice of law.
Swanson filed exceptions to the panel’s findings and subsequently filed a brief with this court, although his brief did not comply with Supreme Court Rule 6.02 (2008 Kan. Ct. R. Annot. 38) (content of appellant’s brief). Swanson was allowed to file an amended brief, but even the second brief did not fully comply with the Rule. Notably, Swanson failed to state specific issues. We mention this because his failure made it more difficult for the Disciplinary Administrator to respond to his arguments and for this court to discern the specifics of his arguments. It appears, however, that he challenges whether the hearing panel’s findings are supported by clear and convincing evidence.
Appellate Standard of Review
Attorney misconduct must be established by substantial, clear, convincing, and satisfactory evidence. See In re B.D.-Y., 286 Kan. 686, 187 P.3d 594 (2008); In re Comfort, 284 Kan. 183, 190, 159 P.3d 1011 (2007); see also Supreme Court Rule 211(f) (misconduct to be established by clear and convincing evidence). The touchstone of the clear and convincing standard is that the evidence must establish that the truth of the facts asserted is “highly probable.” In re B.D.-Y., 286 Kan. 686, Syl. ¶ 3. An appellate court reviewing a determination which is required to be based upon clear and convincing evidence considers whether, after review of all the evidence viewed in the light most favorable to the party with the burden of proof, it is convinced that a rational factfinder could have found the determination to be highly probable. In re.B.D.-Y., 286 Kan. 686, Syl. ¶ 4. In making this determination, the appellate court does not weigh conflicting evidence, pass on credibility of witnesses, or redetermine questions of fact. In re B.D.-Y., 286 Kan. at 699.
In attorney discipline cases, the hearing panel is the finder of fact. If the respondent does not take exception to a finding, it “shall be deemed admitted.” Supreme Court Rule 212(c) (2008 Kan. Ct. R. Annot. 328). On the other hand, when exception is taken, this court must examine the record and determine if a rational fact-finder could have found the determination to be highly probable. See In re B.D.-Y., 286 Kan. at 705; In re Wenger, 279 Kan. 895, 906, 112 P.3d 199 (2005).
Application of Standard to Facts
As we apply this standard in this case, we note that Swanson does not dispute the panel’s findings that he violated KRPC 8.1(b) and Supreme Court Rule 207(b) and Supreme Court Rule 211. Regarding KRPC 8.1 and Rule 207(b), the panel concluded:
“The Respondent knew that he was required to cooperate in the disciplinary investigation. The Respondent failed to comply with the direction of the Disciplinary Administrator and . . . the disciplinary investigator. Because the Respondent knowingly failed to cooperate in the disciplinary investigation, the Hearing Panel concludes that the Respondent violated KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b).”
Regarding the violation of Supreme Court Rule 211(b), the panel noted that Swanson failed to timely file his answer. By that Rule, the answer must be filed 20 days after the filing of the complaint. Swanson waited almost 60 days, fifing his answer just 8 days before the hearing.
As to the remainder of the violations found by the panel, we will consider separately three client complaints at issue: (1) A complaint that Swanson failed to timely pursue child support modifications on behalf of Lamar A. Chapman; (2) a complaint that Swanson failed to timely file a personal injury suit on behalf of Ramon Ybarra, and (3) a complaint that Swanson failed to timely complete a qualified domestic relations order on behalf of Barbara M. Swanson disagrees in some way with the hearing panel’s findings regarding each of these complaints.
DA9455 — Complaint of Lamar A. Chapman
Regarding the complaint of Lamar A. Chapman, the hearing panel found the following facts by clear and convincing evidence. On October 24,1995, Chapman and Anitra M. West had a daughter. Thereafter, on June 21,1999, the Child Support Enforcement Unit of the Kansas Department of Social and Rehabilitation Services (SRS) filed a petition for child support against Chapman. At that time, Chapman was a student at Kansas State University and a member of its football team. He agreed to pay $123 per month in child support, effective August 1, 1999.
In 2000, Mr. Chapman completed his college studies, and on June 16 of that year he signed a 4-year contract to play professional football for the Cleveland Browns. Then, on November 30, 2000, SRS filed a motion to modify child support. Chapman retained Swanson to represent him in the child support matter, and on December 21,2000, Swanson filed a response to the motion to modify child support.
On July 6, 2001, the district court entered a journal entry, modifying the child support order effective January 1, 2001. Chapman was ordered to pay monthly child support in the amount of $2,198 from January 2001 through June 2001; then, from July 2001 through December 2001, Chapman’s monthly child support obligation was $2,200. Chapman’s monthly child support would increase to $2,594 for the months of January 2002 through October 2002. For the last 2 months in 2002, the court ordered Chapman’s monthly child support to be increased to $2,992, because the child would have attained the age of 7. Beginning January 1,2003, Chapman’s monthly child support was to be $3,131.
On September 17, 2001, the district court issued an order to show cause why Chapman should not be held in contempt of court for fading to pay his child support, and Chapman was ordered to appear in court on October 19, 2001. While it is unclear what happened on October 19, the contempt citation was dismissed on January 7, 2002.
Sometime in September 2001, Chapman suffered a knee injury, and as a result of the injury, on September 20,2001, the Cleveland Browns placed Chapman on the injured reserved list and reduced his pay by 50 percent. At that time, Chapman contacted Swanson and asked him to file a motion to modify his child support obligation. On October 9,2001, Swanson filed a motion to reduce child support. The district court considered the motion in January 2002 but only reduced Chapman’s child support obligation for December 2001.
On May 31, 2002, the district court issued a second order to show cause why Chapman should not be held in contempt of court for failing to pay his child support. The court ordered Chapman to appear in court on July 16, 2002, but then the court continued the contempt hearing to September 11, 2002.
In August 2002, Chapman sustained a second knee injury while playing for the Cleveland Browns. As a result of this injury, the Cleveland Browns released Chapman from his employment in September 2002. Chapman received his final paycheck from the Cleveland Browns on September 11, 2002. Immediately after the Cleveland Browns released Chapman, he contacted Swanson and asked him to file a motion to modify the child support order. Swanson requested that Chapman forward a copy of the release via facsimile. Chapman’s wife, Arts, on behalf of her husband, faxed Swanson a copy of the release that same day, but Swanson contacted the Chapmans and told them the copy was unreadable. As a result, Chapman’s wife forwarded a copy of the release by mail.
After Swanson received a copy of the release in the mail, he called Chapman and confirmed that he received a copy of the release but told him that he was past due on his child support. Neither Chapman nor his wife recalled that Chapman was served with an order to show cause on June 15, 2002, nor did they recall Swanson informing them that a contempt citation was pending before the district court at that time.
Chapman was surprised that he was in arrears because the district court had previously issued an income withholding order. It appeared that the arrearage developed because the method in which Chapman was paid by the Cleveland Browns was not contemplated by the district court when establishing the income withholding order. In 2000, 2001, and 2002, Chapman received compensation under his contract with the Cleveland Browns on a weekly basis during the season. But the season was 16 or 17 weeks long, and Chapman did not receive compensation during the remainder of the year. The income withholding order did not take Chapman’s 17-week pay arrangement into consideration. Consequently, insufficient funds were withheld from Chapman’s paychecks to satisfy the child support order. •
After Swanson informed Chapman that he was behind on his child support, Chapman forwarded a check in the amount 'of $5,636.96 dated September 6,2002, to the payment center for past due child support. Swanson informed Chapman that-he needed to forward an additional amount of $5,000 to bring his obligation current. Therefore, that same day, Chapman forwarded $5,000 to the payment center. The next day, Swanson informed Chapman that he was in error in the amount of the past due child support and that Chapman needed to forward an additional $4,500 to the payment center to bring his child support obligation current. Therefore, Chapman complied.
Swanson assured Chapman that once he was current on his child support obligation, he would file a motion to modify the child support. Swanson, however, failed to file the motion as promised.
The September 11, 2002, hearing on the district court’s order to show cause was continued because Chapman was no longer in arrears. That same month, the Chapmans moved from Cleveland, Ohio, to the Kansas City area. The Chapmans and Mr. Chapman’s mother, Sadie Madden, repeatedly contacted Swanson to inquire about the status of the motion to modify the child support order. Swanson told them that he was working on it, that these things take time, that it was still in the court, and that they were just trying to decide how much Chapman really owed. Despite the repeated inquiries, Swanson still did not file a motion to modify the child support.
On Februaiy 9, 2004, the district court issued to Chapman an order to appear in court on March 9 and to show cause for failing to pay child support. Chapman, however, was not served with the order to appear. Then, on April 13, 2004, the court issued another order to appear and show cause regarding Chapman’s failure to pay child support, and Chapman was served with the order.
On the date of the hearing in May 2004, the Chapmans traveled from their home in the Kansas City area to Liberal, Kansas. As they walked into the courthouse, they met Swanson who asked them what they were doing there. The Chapmans explained that they were there for court on the order to show cause. Swanson told the Chapmans that the case had been continued. According to court documents, “[t]he matter was continued by agreement of the parties to [August 27, 2004, to] resolve the issues and/or exchange discovery.”
• Because the April 13, 2004, order to appear and show cause directed Chapman to “bring with you to the hearing any paycheck stubs or other documentation of wages, earnings, or other income for the preceding twelve months,” he had brought his 2003 income tax return. Thus, on that date, the Chapmans provided Swanson with a copy of their 2003 tax returns.
While in Liberal for the hearing, the Chapmans examined the court file and discovered that Swanson had not filed a motion to modify the child support. Mrs. Chapman asked Swanson why there was no motion to modify the child support in the court file. At the disciplinary hearing, Mrs. Chapman testified as follows regarding this conversation:
“A. [By Mrs. Chapman] ... I went around to the clerk’s office and asked for a copy of the file and that’s when I looked through the file and I never saw anything about the current motion that he told us he had filed for the — to get it reduced. And so when we went back out there we said — I said to him personally how come there’s no evidence of it in the file. And at first he said he didn’t know. And by this time we were very upset and we were arguing — -my husband and I were standing there arguing with him like what do you mean you don’t know, wouldn’t it be in there if you did it and he was like I did it, I don’t know why it’s not in there.
“Q. [By Mr. Hazlett] When you asked Mr. Swanson about the . . . motion for modification, what did he say?
“A. He said that he had done it. It was — it was really strange, he said like five different things. He had done it, he didn’t know why it wasn’t in there. Then at one point he said, oh, well, I was waiting on Sadie to tell me that I needed to do it, my husband’s mother. I was working on it. I mean, it was — it was the strangest conversation.”
Swanson did not inform Chapman that the hearing had been continued to August 27, 2004, which resulted in another continuance to September 22, 2004. At that time, Chapman appeared in person and with Swanson. The district court determined that Chapman was past due on his child support in the amount of $69,684.48 and, as a result, held him in contempt of court. He was sentenced to 60 days in jail for the contempt, but the court suspended the imposition of the jail sentence conditioned upon Chapman paying $300 a month in child support for October, November, and December 2004. The district court did not modify the child support order, however, because no motion had yet been filed.
It was not until more than 2 years after Chapman had been released by the Cleveland Browns and had repeatedly asked Swanson to file a motion to modify that Swanson finally filed a motion to modify Chapman’s monthly child support. But Swanson failed to have the matter scheduled for a hearing.
On October 13, 2004, the district court issued an order confirming a garnishment of Chapman’s assets. Then, in December 2004, Merrill Lynch liquidated the entire balance of Chapman’s account and paid $45,429.76 into the court, and Bank of America liquidated the entire balance of Chapman’s account and paid $2,490 into the court. After the accounts were liquidated, Chapman no longer had any assets.
The motion to modify child support was eventually set for a hearing on January 19, 2005. At the hearing, Swanson failed to introduce evidence of Chapman’s income, and SRS failed to introduce evidence of Anitra West’s income. As a result, the case was continued, and Chapman’s child support continued to accrue at $3,131 per month.
In February 2005 Chapman filed a complaint against Swanson with the Disciplinary Administrator’s office.
Eventually, the district court heard Chapman’s case again on December 2, 2005. Despite the fact that Chapman had filed a disciplinary complaint against Swanson 10 months earlier, Swanson appeared with Chapman. Unfortunately, Swanson and the attorney for SRS had previously failed to exchange financial information regarding the parties. At the conclusion of the hearing, the district court ordered Swanson to prepare the journal entry for the December 2 hearing; Swanson faded to do so. Thereafter, Swanson failed to take any additional action to get Chapman’s motion to amend child support before the district court. Accordingly, Chapman terminated Swanson’s legal representation.
On October 27, 2006, the district court issued to Chapman an order to appear in December 2006 and to show cause for fading to pay the monthly child support of $3,131. After the order to show cause was issued, the Chapmans retained Jacob Fitzgerald to represent them. Chapman appeared with Fitzgerald at the scheduled hearing, and Fitzgerald requested a continuance to allow him time to obtain a copy of the transcripts of the previous hearings. He also asked the Chapmans and Mrs. Madden to obtain a copy of Swanson’s file.
Although Mrs. Madden requested that Swanson provide her with a copy of the file so she could forward it to Fitzgerald, Swanson never did so. The district court took up the matter on February 26, 2007. Finding that Chapman continued to owe past due child support in the amount of $23,826.72, the district court ordered him to pay $200 per month toward the arrearage. The court also dissolved the contempt proceeding which had originated on September 22, 2004, and dismissed the contempt proceeding which had originated on October 27, 2006.
In determining whether to make the motion to modify the child support retroactive to 30 days after the motion was filed, the court queried:
“Should [Chapman] benefit from a retroactive modification of his child support obligation to thirty (30) days after it was filed when he hasn’t timely prosecuted the motion? The Court recalls [Swanson] complaining about how difficult it was to get financial information from Mr. Chapman.”
The court reduced Chapman’s child support obligation to $181 per month, and, despite its hesitation, made the modification effective November 1, 2004.
The hearing panel found the basis of the court’s hesitation to be unfounded or at least the blame to be misplaced, concluding that Chapman had timely provided financial information to Swanson but that Swanson failed to timely present the information to the district court. Also, the panel found that if Swanson had filed a timely motion to modify Chapman’s child support, his child sup port obligation for the months of November 2002 through September 2004 may veiy well have been reduced by approximately $181 to $300. According to the hearing panel’s calculations, Chapman’s total child support from November 2002 through September 2004 was $71,735 when, in all likelihood, it should have been between $4,163 and $6,900. Thus, Swanson’s misconduct cost Chapman between $64,835 and $67,572.
Based upon these facts, the panel found several rule violations. Focusing upon Swanson’s failure to timely file a motion to modify child support in September 2002, the panel found he violated KRPC 1.1 because his representation was not competent and KRPC 1.3 because his representation was not diligent. Also, the panel found that Swanson violated KRPC 1.4(a) because he failed to keep Chapman reasonably informed about the status of the matter or failed to provide requested information. Finally, the panel found a violation under KRPC 8.4(c) for engaging in dishonest conduct when he (1) proffered to the court that Chapman failed to timely provide requested financial documents, (2) testified at the disciplinary hearing that neither Chapman nor anyone on his behalf asked Swanson to file a motion to modify child support, (3) testified that neither Chapman nor anyone on his behalf provided Swanson with a letter of release from the Cleveland Browns, and (4) provided the Chapmans and Mrs. Madden with false information about filing the motion to modify child support.
After the panel made these (and other) findings in its preliminary report, Swanson submitted his written recommendation regarding the appropriate sanction and, in doing so, presented some additional arguments. Although the panel did not address all of these arguments in its final report, it addressed Swanson’s argument that Chapman did not provide a domestic relations affidavit prior to September 22, 2004, and as a result Swanson could not have filed a motion to modify child support any earlier. The panel rejected this argument, stating:
“The Hearing Panel recognizes that Kan. Sup. Ct. R. 139(a) provides:
‘Applications for ex parte orders which include requests for temporary support and all motions to modify existing support orders shall be accompanied by a Do mestic Relations Affidavit. The form of the affidavit is set forth in the appendix of the Kansas Child Support Guidelines.’
“Despite Kan. Sup. Ct. R. 139(a), the Hearing Panel finds that the Respondent’s argument, that he did not file the motion to modify until September 22, 2004, because Mr. Chapman did not provide him with a domestic relations affidavit until that date, lacks merit for two reasons. First, the Respondent previously filed a motion to modify child support in behalf of Mr. Chapman in October 2001, without attaching a domestic relations affidavit to the motion. The Respondent testified regarding this at the hearing:
‘CHAIRMAN [of the hearing panel]: Mr. Swanson, not having a domestic relations affidavit filed contemporaneous with the filing of the motion in October of 2001, did you ever file that affidavit prior to the time that the court considered the reduction in child support in January of ‘02?
‘MR. SWANSON: No.
‘CHAIRMAN . . . : And I certainly would grant leave to you during any break or anything if you want to go through the file again to make sure that what you’re telling us now is correct. I don’t want to put you on the spot to go through a 300-page file and tell us whether or not something is there. Rut at least at this point it doesn’t look like there was an affidavit filed at any time prior to the court determining the motion to modify in January of 2002, correct?
‘MR. SWANSON: Yeah. I’ve already said no, yeah.’
“The Respondent’s argument that he could not file a motion to modify child support in behalf of Mr. Chapman until Mr. Chapman provided him with a domestic relations affidavit is disingenuous because the Respondent did just that in October 2001.
“Second, the Respondent’s argument that he could not file a motion to modify child support in behalf of Mr. Chapman until Mr. Chapman provided him with a domestic relations affidavit also lacks merit because the Respondent failed to inform Mr. Chapman of that fact. The Respondent did not forward a single letter to Mr. Chapman during the two-year time period instructing Mr. Chapman as to what was needed to file a motion to modify. In fact, when Mr. and Mrs. Chapman and Mrs. Madden contacted the Respondent he informed them that he was working on it, that these things take time, that it was still in the court, and that they were just tiying to decide how much he really owed. Accordingly, the Respondent’s argument that he filed the motion to modify child support at his first opportunity lacks merit.”
The panel cited this evidence as additional support for its previous conclusions that Swanson had not been diligent in pursuing the motion and had not adequately communicated with his client.
Swanson s Disputes Regarding Chapman’s Complaint
Swanson disputes these conclusions, stating Chapman made “a mere allegation that [a motion to modify child support] should have been filed in 2002.” He argues he was not asked by Chapman (or anyone on Chapman’s behalf) to file a motion to modify child support in 2002. He further asserted at the hearing before this court that he had never been paid to file a motion. In addition, he argues he did not have the information he needed to file the motion. Swanson denies ever having received Chapman’s letter of employment release from the Cleveland Browns and claims that he had a difficult time obtaining financial documents from Chapman in order to file a motion to modify child support.
In other words, Swanson asks this court to accept his version of the facts rather than accept the findings of the hearing panel.
Conclusion Regarding Chapman’s Complaint
Swanson does not appreciate that this court does not reweigh credibility. And, in this instance, we are not left to infer how the hearing panel viewed the credibility of various witnesses. The panel explained:
"While Mr. Chapman’s testimony and his mother’s testimony was credible, there were minor conflicts in their testimony regarding how the release was transmitted to the Respondent. Despite the minor conflicts in their testimony, the overall conclusion to be gleaned from the testimony of all three is that the Respondent received a copy of Mr. Chapman’s release from the Cleveland Browns.
“From the record, it is clear, that Mrs. Chapman is the person who maintains the records and handles the business of the family. And, it is Mrs. Chapman’s testimony that convinced the Hearing Panel of exactly what occurred. Mrs. Chapman testified specifically about how and when they provided a copy of the release ....
“Additionally, Mrs. Chapman’s testimony about specific conversations she had with the Respondent about why the motion to modify had not been filéd was credible, clear, and convincing.”
In addition, we note there are verifiable facts that support the Chapmans’ version of events. For example, it is undisputed that after Chapman’s first injury, when his salary was reduced by half, Swanson filed a motion to modify child support after Chapman provided the information necessary to do so. The fact that Chapman pursued a reduction on that occasion, when the reduction of income was only temporary, suggests he would do so later when his income was permanently reduced. Certainly, Chapman had an incentive to pursue the reduction. And the fact that Chapman made payments of $5,636.96, $5,000 and $4,500 to cure the child support arrearage in early September 2002, supports Chapman’s claim that at that point in time he was discussing with Swanson the need to have the arrearage paid before the court would favorably entertain a motion to modify the monthly obligation.
Moreover, it is undisputed that the Chapmans made a trip from the Kansas City area to Liberal in May based upon incorrect information regarding a hearing. Additionally, at that time the Chap-mans examined the court file and determined the motion they expected to have been filed several months earlier was not in the court file. Their outrage, which is confirmed by Swanson’s testimony, confirms that the Chapmans had an expectation that a motion would have been filed and advanced to a hearing.
Based upon this evidence, we conclude the Disciplinary Administrator presented clear and convincing evidence that
• Swanson’s failure to timely file a motion to modify was a violation of KRPC 1.1 (competence) and KRPC 1.3 (diligence);
• Swanson’s failure to inform the Chapmans of the status of the motion or hearing dates and continuances was a violation of KRPC 1.4 (communication); and
• Swanson’s (1) proffer to the court that Chapman failed to timely provide requested financial documents, (2) testimony at the disciplinary hearing that neither Chapman nor anyone on his behalf asked Swanson to file a motion to modify child support, (3) testimony that neither Chapman nor anyone on his behalf provided Swanson with a letter of release from the Cleveland Browns, and (4) false communication to the Chap-mans and Mrs. Madden regarding the filing of the motion to modify child support was dishonest conduct and a violation of KRPC 8.4(c) (misconduct).
DA9456 — Complaint of Ramon Ybarra
With regard to Ybarra’s complaint, the hearing panel found the following facts. On January 7, 1998, Ybarra was involved in an automobile accident in Seward County, Kansas. Humberto Lopez, driving a vehicle in the opposite direction of Ybarra, crossed the center line and struck Ybarra’s vehicle head-on. After that collision, a vehicle driven by Roger Schultz and owned by Diamond F. Corporation, struck Ybarra’s car from behind. As a result of the accident, Ybarra suffered significant injuries.
Ybarra retained Swanson to file a civil suit seeking damages for his injuries, and Swanson accepted the representation on a contingency fee basis. However, Swanson failed to reduce the agreement to writing. On November 1, 1999, Swanson filed suit on behalf of Ybarra. At the time Swanson filed the cause of action, he also filed a document titled “Declaration of No Service of Summons.” In that document, Swanson directed the clerk of the district court to refrain from issuing summonses to the defendants. At the disciplinary hearing on this matter, Swanson offered no explanation for decfining to have the defendants served at the time he filed the case.
After Swanson filed suit, Ybarra had difficulty reaching him to obtain information regarding the status of his case. On the occasions when Ybarra was able to reach Swanson, he assured Ybarra that he was actively pursuing the personal injury case. Yet, despite assurances to the contrary, after filing suit Swanson took no additional action to prosecute the case or to obtain service of process on the defendants.
On May 19, 2000, the district court issued a “Notice of Intent to Dismiss by the Court for Lack of Prosecution.” After Ybarra received the court’s notice and because Swanson had not made any progress in the case, Ybarra contacted Diane Barger and requested that she enter her appearance on Ybarra’s behalf in the pending personal injury litigation. Barger insisted that Ybarra terminate Swanson’s representation in writing before she would enter her appearance.
On May 24, 2000, Ybarra forwarded a letter terminating Swanson’s representation. The letter provided:
“This letter is to inform you that since we aren’t making any progress on my injury case, I have no other alternative but to look for other counsel to represent me on this matter. So as of May 24, 2000 you are hereby terminated. As to my case file please turn it over to the attorney that I have hired to represent me on this matter.”
Ybarra retained Barger, and they entered into a written agreement. Then, on May 27, 2000, Barger wrote to Swanson requesting that he forward her a complete copy of Ybarra’s file. Ybarra also executed a release, authorizing Swanson to forward his file to Barger, and on June 8, 2000, an employee of Barger’s picked up the file from Swanson.
Barger had learned that Swanson had never obtained service of process on the defendants in Ybarra’s civil suit. On June 2, 2000, Barger put Swanson on notice that his failure to obtain service on the defendants amounted to negligent representation of Ybarra. He did not respond to Barger’s letter. After obtaining the court’s permission for more time to obtain service on the defendants, Barger served the defendants with copies of the summons in July 2000.
After Ybarra terminated Swanson’s legal representation and retained Barger, Swanson continued to contact Ybarra and to act on his behalf — in one instance by contacting the insurance carrier. Barger wrote to Swanson and directed him to stop contacting Ybarra, but Swanson did not respond to Barger’s letter.
At some point, attorney Randall E. Fisher joined Barger in the representation of Ybarra. After Schultz and Diamond filed their answer to Ybarra’s first amended petition, they filed a motion to dismiss based on the statute of limitations. Thereafter, Fisherwrote to Swanson to put him on notice that he faced a potential legal malpractice claim and to ask him to forward any evidence which could be used in defense to the motion to dismiss. Swanson did not respond to Fisher’s letter. On March 19,2001, the district court granted the motion to dismiss filed by Schultz and Diamond.
Despite the statute of limitations, Lopez agreed to settle the suit by paying Ybarra the insurance policy limit of $25,000, presumably to avoid litigation costs. Also, because Ybarra’s injuries exceeded Lopez’ insurance policy limit, Ybarra’s underinsurance policy, with a $1 million limit, applied. Utica National Assurance Company was the insurance provider for Ybarra’s underinsurance policy, and at some point, Utica intervened in the suit.
Utica failed to effect a timely substitution of its $25,000 for the liability policy limits applicable to Lopez, and, as a result, Ybarra’s case proceeded against Utica. At a bench trial, the court found Lopez 75 percent liable and Schultz 25 percent liable. Further, the court determined Ybarra’s damages to be $456,000. Utica was ordered to pay $317,000 less the previous payment of personal injury protection (PIP) benefits in the amount of $27,000, for a net judgment of $290,000. Utica paid the judgment.
Because the district court found Schultz 25 percent liable, it attributed $114,000 of Ybarra’s damages to Schultz. Ybarra was unable, however, to collect that portion of his damages from Schultz because Schultz and Diamond had been dismissed from the suit due to the failure to comply with the statute of limitations.
On August 1, 2002, Barger wrote to Swanson again and updated him regarding the status of the case. She also notified him that Ybarra would be proceeding against him to collect the $114,000. Again, Swanson failed to respond to Barger’s letter.
Because Ybarra was unable to collect that portion of his damages from Schultz, Barger and Fisher filed suit in the United States District Court for the District of Kansas against Swanson seeking damages in the amount of $114,000. In a letter to Fisher, dated January 3, 2003, Swanson alleged that his attorney-client relationship with Ybarra “was terminated by [Ybarra] and that [Swanson] was advised by [Ybarra] that [Ybarra] was hiring another attorney before time for service of process expired.”
On February 10, 2003, Swanson filed a third-party petition against Barger alleging that she was attorney of record and that any damages were the result of Ybarra’s negligence and Barger’s negligence. Then, in a document sent June 9, 2003, Swanson asserted:
“[Swanson] denies that [he] failed to timely prosecute the case. [Swanson] denies that [he] failed to obtain timely service of process on the Defendants in that case. [Swansonfs relationship as attorney for [Ybarra] was terminated by [Ybarra]; and [Swanson] was advised by [Ybarra] that [he] was hiring another attorney before time of service of process had expired. [Ybarra] knew of the expiration of time to issue service of process and advised [Swanson] that [Ybarra] was hiring another attorney and would issue the service of process all before the time expired to issue service of process.”
On June 19, 2003, Swanson requested that Fisher include the following passages in the pretrial order:
“[64] 2. Estoppel. [Ybarra] terminated the contractual relationship between [Ybarra] and [Swanson] shortly after November 1999, thereby relieving [Swanson] from any further contractual responsibility by [Swanson] due [Ybarra].
“[64] 2. [Swanson] was advised by [Ybarra] before the service of process deadline, that [he] was terminating the contractual relationship between [Ybarra] and [Swanson], and that [Ybarra] had already hired a new attorney and advised the new attorney of the status of the case and service of process issues. If that new attorney did not issue service of process, then that negligence, if any should be compared to the [Ybarra] and [Swanson].”
For the first time, on April 7, 2004, in his “Amended Witness and Exhibit List” filed in the professional malpractice case, Swanson specifically asserted that Ybarra terminated the representation on December 2,1999, by written correspondence. Swanson identified a letter which purported to be from Ybarra, dated December 2, 1999, and which provided as follows:
“This letter is to inform you that since we aren’t making any progress on my injury case, I have no other alternative but to look for other counsel to represent me on this matter. So as of December 02, 1999 you are hereby terminated. As to my case file please let me know when I can pick it up.”
Other than the words in bold and the date, the letter dated December 2,1999, is identical to the letter dated M[ay 24, 2000. Notwithstanding the alleged existence of the December 2,1999, letter, the date of this letter was not specifically referred to or identified in Swanson’s previous correspondence. Additionally, a copy of the December 2, 1999, letter was not in the materials provided to Barger’s employee on June 8, 2000.
At the hearing on this matter, Ybarra testified that he did not terminate Swanson’s representation in December 1999. Ybarra clearly testified that he did not terminate Swanson’s representation until May 24,2000. Ybarra testified that he threatened to terminate Swanson’s representation earlier, although he could not recall specifically when that was. Ybarra also testified that he might have prepared a letter sometime in December 1999, but he never sent it because Swanson talked him out of firing him.
During a hearing in the professional negligence case, the district court asked Swanson why he had not previously produced the December 2, 1999, letter. The exchange was as follows:
“THE COURT: Why wasn’t the letter produced?
“MR. SWAN SON: Your Honor, I don’t know why the letter was not produced. I had a flood in my office on May 15th of ‘03, and I have had all kinds of files that I have rearranged and transferred and tried to pull apart because they were stuck together, and I can’t tell you why it was not produced. There was no intent on [my part] to not produce this document. I think that — this document is the same document that [Ybarra], himself, has been aware of since December of1999, so this is no surprise to [Ybarra] at all about this document. This December 2, 1999 document written by [Ybarra] terminating me as his attorney of record, that document has been in [Ybarra]’s possession. [He] knew of that document, and why [Ybarra] did or did not tell [his] attorney, I don’t know. But there’s no surprise about that document. . . . Well, I can’t tell you that I lost it in the flood. I’m not trying to make up things. I’m telling you that this file, along with a whole bunch of files, were in disarray because they were sitting on the floor, and I had four inches of water.”
At the disciplinary hearing, Swanson explained why he did not produce the December 2, 1999, letter earlier in a number of different ways. He testified that he had a flood in his office, it was a frivolous claim and the jury agreed with him, he could not locate the original copy of the letter and Ybarra’s daughter later gave him a copy of the letter after Ybarra moved out of the family home, he did not know why he did not produce the letter, and he did not produce the letter earlier because he was confident a jury of 12 people would believe him that Ybarra fired him before the statute of limitations ran.
In addition to the December 2,1999, letter, Swanson identified an exhibit that he asserted established that Ybarra and Barger had a meeting on December 8, 1999. The exhibit consisted of a business card and a receipt held together by a paper clip. Later, Swanson explained that he received the items from Christine Baeza, Ybarra’s estranged daughter. Swanson asserted that because a receipt dated December 8,1999, was clipped to Barger’s business card, that Ybarra and Barger had met. Ultimately, Swanson did not introduce at trial the December 2 letter or the business card clipped together with the receipt.
Following the trial on Ybarra’s professional malpractice claim against Swanson, the jury issued a special verdict form. The jury found Ybarra to be 45 percent at fault and Swanson to be 55 percent at fault for negligently fading to obtain service of process before the expiration of the statute of limitations. In answering another special question, the jury found that Ybarra terminated Swanson’s representation before the statute of limitations expired. Further, the jury found Lopez 100 percent and Schultz 0 percent at fault for the car accident. The special verdict form instructed the jury that if it found Schultz to be 0 percent at fault, it did not need to consider any additional issues.
About 6 months later, on December 29, 2004, Ybarra fded a complaint against Swanson with the Disciplinary Administrator’s office. In February 2005, the Disciplinary Administrator wrote to Swanson and directed him to file a written response to the complaint within 20 days. He faded to do so within that time period. On March 9, 2005, however, Swanson wrote to Glenn Kerbs, the Chairman of the Southwest Kansas Bar Association’s Ethics and Grievance Committee, and informed him that the matters between Ybarra and himself had been concluded in his favor following a jury trial.
The hearing panel found that Swanson violated the following rules in connection with his representation of Ybarra: KRPC 1.1 for failing to obtain timely service of process on the defendants in Ybarra’s personal injury case; KRPC 1.3 for fading to properly prosecute Ybarra’s personal injury case and for failing to timely obtain service of process on the defendants; KRPC 1.5 for fading to have a written contingent fee contract with Ybarra; KRPC 1.16(a)(3) for failing to properly withdraw once Swanson’s services were terminated by Ybarra and failing to properly protect Ybarra’s interests once the representation was terminated; KRPC 3.2 for fading to expedite Ybarra’s litigation; KRPC 4.1 for knowingly and intentionally asserting that Ybarra terminated the representation on De cember 2, 1999, when Ybarra did not terminate Swanson’s representation until May 24, 2000; and KRPC 8.4(c) for testifying at the disciplinary hearing that he received a December 1999 letter from Ybarra and testifying that Ybarra terminated the representation in December 1999.
Swanson’s Disputes Regarding Ybarra’s Complaint
In his brief, Swanson admitted to a violation of KRPC 1.5(d) for failing to establish a written contingent fee agreement with Ybarra but took issue with the other findings of the hearing panel relating to Ybarra’s termination of Swanson’s representation.
Then at the hearing before this court, Swanson advised that he was not disputing that he violated KRPC 1.1 (competence), KRPC 1.3 (diligence), KRPC 1.5 (fees), KRPC 1.16 (declining or terminating representation), and KRPC 3.2 (expediting litigation). While his admission at the court hearing is sufficient for us to deem the violation to be admitted, we also note that our review of the record reveals clear and convincing evidence of these violations.
Swanson’s disputes, therefore, relate to the panel’s findings that he violated KRPC 4.1 for knowingly and intentionally asserting that Ybarra terminated the representation on December 2,1999, when Ybarra did not terminate Swanson’s representation until May 24, 2000 and that he violated KRPC 8.4(c) for testifying at the disciplinary hearing that he received a December 1999 letter from Ybarra and testifying that Ybarra terminated the representation in December 1999.
Swanson argues these findings are contrary to the jury verdict in the federal malpractice case in which the jury found that Ybarra terminated the representation on December 2, 1999. To support his argument, he cites Supreme Court Rule 202 (2008 Kan. Ct. R. Annot. 261) (grounds for discipline), which provides that civil judgments are prima facie evidence of the findings made therein and shall raise a presumption as to their validity. Swanson relies on the rule to argue that, because of the jury’s verdict in the federal malpractice case, there is a presumption that Ybarra terminated his representation in December 1999.
Conclusions Regarding Ybarra’s Complaint
Supreme Court Rule 202 has generally been applied in cases where a judgment has been made against the respondent. See, e.g., In re Rumsey, 276 Kan. 65, 75, 71 P.3d 1150 (2003) (“The respondent bears the burden of disproving the findings in the civil judgment.”). Nevertheless, the hearing panel stated, “[pjursuant to tibe language of the rule, it appears that a judgment based only on a preponderance of the evidence standard can be overcome regardless of whether it tends to prove misconduct or disprove misconduct.” Applying that interpretation to the case, the panel specifically concluded that the Disciplinary Administrator overcame the presumption and that Ybarra did not terminate Swanson until May 24, 2000, after the statute of limitations had expired.
The Disciplinary Administrator suggests two reasons why we should agree that fhere is clear and convincing evidence that overcomes the presumption created by the federal verdict. First, he argues that the jury’s verdict was inconsistent in that it found Swanson 55 percent at fault for allowing the statute of limitations to run yet found Ybarra terminated Swanson’s representation before the deadline for the service of process. Second, he suggests the jury in the federal malpractice case did not have the opportunity to consider the authenticity of the December 2, 1999, letter.
Regarding the first point, we disagree that the jury’s verdict is inconsistent. Rather, there are at least two rationales that reconcile the answers. First, the jury could have determined that Ybarra terminated Swanson’s representation on December 2, 1999, but that Swanson was still at fault for not diligently pursuing service before that date. Second, the jury could have concluded that Swanson did not adequately protect Ybarra’s interests when the representation was terminated, even assuming the termination occurred in December. Swanson did not file a motion to withdraw and there is no evidence that he sent a letter or notice to Ybarra communicating the status of the court case or emphasizing the looming statute of hmitations.
In the hearing before this court, Swanson was asked whether he had complied with KRPC 1.16(d), which states:
“Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned.”
The comments to KRPC 1.16 include one which clarifies that “[e]ven if the lawyer has been unfairly discharged by the client, a lawyer must take all reasonable steps to mitigate the consequences to the client.” Swanson admitted to this court that he violated KRPC 1.16.
Similarly, a jury could have felt that, even post-termination, Swanson still had responsibilities that he failed to fulfill and that the failure made him 55 percent responsible for the failure to obtain service of process before expiration of the statute of limitations. Hence, we are not willing to discount the juiy’s verdict.
That leaves the Disciplinary Administrator’s second argument that the jury did not have the opportunity to consider the authenticity of the December 2, 1999, letter. Granted, there was some difference in the evidence heard by the panel as compared to that heard by the jury. Nevertheless, because two fact-finding bodies reached different conclusions, a majority of this court finds it cannot conclude it is “highly probable” that a factfinder would determine the termination occurred in May 2000 rather than December 1999.
Even so, the hearing panel made another finding of dishonesty with regard to Swanson’s testimony regarding the Ybarra complaint. The panel stated:
“Furthermore, the Respondent testified falsely when he testified that he did not receive the May 24, 2000, letter from Mr. Ybarra. Ms. Barger clearly testified that she received a copy of the May 24, 2000, letter when she obtained a copy of the Respondent’s file.”
Swanson does not specifically address this finding, and we find it is supported by clear and convincing evidence. Therefore, in this regard, we find that the Disciplinary Administrator met the burden of establishing a violation of KRPC 8.4(c), which prohibits conduct involving dishonesty, fraud, deceit, or misrepresentation. Nevertheless, because this violation did not occur during the course of representing a client, we conclude the Disciplinary Administrator faded to meet the burden of establishing a violation of KRPC 4.1. See KRPC 4.1 (prohibiting knowingly making a false statement of material fact or fading to disclose a fact in the course of representing clients).
As a result, with regard to Swanson’s representation of Ybarra, we find clear and convincing evidence supports the hearing panel’s findings that Swanson violated KRPC 1.1 (competence); KRPC 1.3 (diligence); KRPC 1.5(d) (fees); KRPC 1.16(a)(3) and (d) (declining or terminating representation); KRPC 3.2 (expediting litigation); KRPC 8.1 (bar admission and disciplinary matters); KRPC 8.4 (misconduct); and Supreme Court Rule 207(b) (duties of the bar and judiciary).
DA9520 — Complaint filed by Barbara M.
The hearing panel found the fodowing facts regarding the complaint of Barbara M., who had retained Swanson to file a divorce action on her behalf. In November 2003, Swanson filed the divorce in Seward County, Kansas, and the district court granted the divorce on March 8, 2004.
According to the divorce decree, prepared by Swanson, Barbara M. was to receive $15,000 of the proceeds of her husband’s KPERS retirement account. Swanson, however, failed to prepare the Qualified Domestic Relations Order (QDRO) authorizing the division of the retirement account. Barbara M. learned of this in December 2004 and thereafter began calling Swanson’s office to discuss the status of the QDRO with him. Barbara M.’s numerous telephone calls went unanswered.
On April 7, 2005, Barbara M. filed a complaint with the Disciphnary Administrator’s office. In her complaint, in addition to complaining that Swanson failed to prepare and file the QDRO, Barbara M. also noted errors in the divorce decree. Approximately a week after she filed her complaint, on April 15, 2005, Swanson prepared and filed the QDRO, but he never rectified the errors in the divorce decree.
The hearing panel concluded that in connection with Swanson’s representation of Barbara M., he violated KRPC 1.1 for fading to prepare the QDRO on her behalf; KRPC 1.3 for failing to timely file the QDRO on her behalf; and KRPC 1.4 for failing to return her telephone calls and to provide her with updates on the status of the representation.
Swanson’s Disputes Regarding Barbara M.
In his brief, Swanson refused to take full responsibility for the failure to prepare the QDRO, arguing that the district court did not order him to prepare a QDRO dividing the KPERS retirement account. He did admit, however, that he could have prepared the QDRO sooner and that he could have obtained the proper forms more expeditiously. Swanson further admitted that he failed to return some of Barbara M.’s phone calls and that he should have kept his client better informed.
That being said, Swanson’s lack of true recognition regarding his misconduct is emphasized by his contention that “[tjhere was no dishonest or selfish motiv[ated] conduct on behalf of the Respondent” and that he “did not ask for, or receive an extra fee for preparing the QDRO.”
Swanson’s tone changed somewhat, however, when he admitted to this court that he had committed the violations that related to his representation of Barbara M.
Conclusions Regarding Barbara M.’s Complaint
While Swanson’s admissions before this court seems to settle the question, our own review of the record causes us to conclude there is clear and convincing evidence to support the hearing panel’s findings that Swanson violated KRPC 1.1 (competence), KRPC 1.3 (diligence), and KRPC 1.4 (communication).
Sanction
Based upon the violations, the hearing panel unanimously recommended indefinite suspension. Their recommendation is based on the following analysis:
“In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards.’) Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duty to his clients to provide competent and diligent representation. The Respondent violated his duty to his clients to provide reasonable communication. The Respondent violated his duty to the legal system to expedite litigation. The Respondent violated his duty to the public to maintain personal integrity. The Respondent violated his duty to the legal profession to cooperate in [the] disciplinary investigation.
“Mental State. The Respondent knowingly violated his duties.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual serious injury to Mr. Chapman and Mr. Ybarra. Specifically, but for the Respondent’s misconduct, Mr. Chapman would have most likely been required to pay substantially less in child support. Additionally, as a direct result of the Respondent’s misconduct, Mr. Ybarra lost his ability to collect $114,000 in damages. Finally, the Respondent caused potential injury to [Barbara M.].
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“Prior Disciplinary Offenses. The Respondent has been previously disciplined on one occasion. Specifically, on April 25, 2003, the Disciplinary Administrator informally admonished the Respondent for KRPC 1.4.
“Dishonest or Selfish Motive. The Respondent’s misconduct was motivated by dishonesty and selfishness.
“The Respondent failed to timely file a motion to modify in behalf of Mr. Chapman. Thereafter, the Respondent attempted to avoid responsibility by falsely asserting that Mr. Chapman failed to provide him with necessary financial documentation and that Mr. Chapman never requested that the Respondent file a motion to modify child support.
“The Respondent’s misconduct regarding Mr. Ybarra was likewise motivated by dishonesty and selfishness. The Respondent failed to properly obtain service of process on the defendants. Thereafter, in an effort to avoid responsibility, the Respondent falsely asserted that Mr. Ybarra terminated the Respondent’s representation prior to the expiration of the statute of limitations.
“Additionally, the Respondent’s assertion that Ms. Barger’s business card and a receipt held together by a paper clip somehow establishes that Ms. Barger and Mr. Ybarra had a meeting is unbelievable. Further, the Respondent’s assertion that the receipt may have been evidence that Mr. Ybarra mailed something to Ms. Barger is not supported even by the receipt itself. The receipt includes a charge for tax and postage is not taxable. The speculation that the Respondent engaged in, in representing to the federal court that the business card and receipt held together by a paper clip establish that Ms. Barger and Mr. Ybarra met in December 1999, is dishonest.
“Thus, the Hearing Panel concludes that the Respondent’s misconduct was motivated by dishonesty and selfishness.
“A Pattern of Misconduct. Included in this case are three complaints. The complaints involve similar misconduct. Accordingly, the Respondent engaged in a pattern of misconduct.
“Multiple Offenses. The Respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.5, KRPC 1.16(a)(3), KRPC 1.16(d), KRPC 3.2, KRPC 4.1, KRPC 8.1, KRPC 8.4(c), Kan. Sup. Ct. R. 207(b), and Kan. Sup. Ct. R. 211(b). As such, the Respondent committed multiple offenses.
“Bad Faith Obstruction of the Disciplinary Proceeding by Intentionally Failing to Comply with Rules or Orders of the Disciplinary Process. The Respondent knew that he was required to provide the disciplinary investigator with certain requested items and answer a number of questions. The Respondent never provided the investigator with the requested items nor did he answer the questions. The Hearing Panel, therefore, concludes that the Respondent obstructed the disciplinary proceeding.
“Submission of False Evidence, False Statements, or Other Deceptive Practices During the Disciplinary Process. The Respondent provided false testimony during the disciplinary hearing.
“For example, the Respondent testified falsely when he testified that [he] did not receive a copy of the release and when he testified that neither Mr. Chapman, Mrs. Chapman, nor Mrs. Madden requested that he file a motion to modify child support after Mr. Chapman was released from the Cleveland Browns.”
The hearing panel then made those findings regarding the Chap-mans’ credibility that have been previously quoted. After determining that Mrs. Chapman’s testimony was clear and convincing, the panel continued:
“[T]he Hearing Panel concludes that the Respondent engaged in a deceptive practice or knowingly testified falsely when he testified as follows:
‘Q. [By Mr. Hazlett] Okay. ... In August of 2002 or around that time, do you recall being contacted by Mr. Chapman or Aris Chapman about the fact that he had sustained an additional injury to his leg?
‘A. [By the Respondent] I think somebody mentioned that to me, yes.
‘Q. Do you know who that would have been?
‘A. No, I don’t. I don’t have any record of anybody sending me any documents or letters or anything. It might have been his mother.
‘Q. Okay. Did you receive any information from Mr. Chapman or any family member verifying that he had sustained an injury and had been released?
‘A. . I don’t have anything in my file that indicates that.
‘Q. Ms. Chapman or Mr. Chapman indicated in his complaint letter that he faxed the release letter to you in August of 2002. Do you recall that happening?
‘A. No, I don’t. And I know that that’s what they’re claiming, but they gave me some information in August of ‘02, but I don’t have any of that in my file.
‘Q. They also claim that they had a conversation with you in which you said that the fax didn’t come through and you asked them to mail the faxed letter to you and they indicated that they did that. Is it your testimony that they did not do that?
‘A. I have no idea if they did that or not, but I don’t have it in my file.
‘Q. Do you have any correspondence in your file — I mean, you’ve looked through your file; is that correct?
‘A. Yes.
‘Q. Do you have any correspondence in your file from you to the Chapmans or to Mr. Chapman during this time?
‘A. I don’t think so at that time. The only — everything that we did was me talking to his mother and talking about, you know, making the payments. And then when they gave me the documents in ‘03 to file the motion to reduce. Not in ‘03, excuse me, the ‘03 tax return. I said that wrong.
‘Q. So is it — just to kind of clarify this in my own mind, is it your testimony that you don’t recall the release letter being sent to you or it was not sent to you?
‘A. I don’t know if they sent it or not. I’m just telling you that I don’t recall it being in my file.
‘Q. And you didn’t recall receiving it?
‘A. And I don’t recall receiving it.
‘CHAIRMAN [of the hearing panel]: Mr. Swanson, in August of2002, did Mr. Chapman contact you and indicate that he had sustained an injury, he was being released, and he wanted you to file a motion to reduce his child support?
‘MR. SWANSON: No.
‘CHAIRMAN . . . : No.
‘MR. SWANSON: No.
‘CHAIRMAN . . . : You did receive information during that period of time that he had received an injury and was being released from his contract?
‘MR. SWANSON: His mother came in and was talking in general about him and about his status with the NFL. And what I was trying to focus on — when you’re talking August of ‘02, what I kept telling them we have a May ‘02 contempt for not paying and in May ‘02 you’re already not paying and I said you’ve got to get that paid so you don’t go to jail. That’s what we were focusing on. And he wouldn’t pay. So I don’t have any — there's nothing specific that I know of in my file that says that you need to file a motion to reduce support in August of ‘02.
‘CHAIRMAN . . . : The fact that Mr. Chapman may or may not have been in arrears in the payment of child support would not have precluded you filing a motion to reduce his child support, would it?
‘MR. SWANSON: Well, certainly not, no.
‘CHAIRMAN . . . : So it’s your testimony that no one associated with Mr. Chapman asked you to file a motion to reduce the child support—
‘MR. SWANSON: No.
‘CHAIRMAN . . . : —as a result of the change in circumstances, which was the injury to his leg?
‘MR. SWANSON: No, I don’t— I mean, his mother — I was talking to his mother about it and I don’t recall anything specific about that. I mean, I would have filed it. I filed two previous motions and there’s no reason why I wouldn’t file it.’ ”
After quoting this excerpt from the record, the panel cited Swanson’s dishonest conduct relating to Ybarra’s- complaint, specifically his false testimony regarding the date of termination and regarding whether he received the May 24, 2000, letter from Mr. Ybarra.
The panel continued:
“Later, during the hearing, the Respondent acknowledged that Ms. Barger must have received the May 24, 2000, letter and that he did not disbelieve her.
“Refusal to Acknowledge Wrongful Nature of Conduct. The Respondent refused to acknowledge the wrongful nature of much of his conduct. While the Respondent admitted that he failed to reduce Mr. Ybarra’s contingent fee agreement to writing and that he failed to complete [Barbara M.’s] QDRO as quickly as he might have, the Respondent refused to acknowledge any other misconduct.
“Vulnerability of Victim. Mr. Chapman, Mr. Ybarra, and [Barbara M.] were vulnerable to the Respondent’s misconduct.
“Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1974. At the time the Respondent engaged in misconduct, the Respondent had been practicing law for more than 25 years. Accordingly, the Hearing Panel concludes that the Respondent had substantial experience in the practice of law at the time he engaged in the misconduct.
“Indifference to Making Restitution. To date, the Respondent has made no effort to make restitution to Mr. Chapman or Mr. Ybarra for the damage he caused.”
Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel found the following mitigating circumstance present:
“Previous Good Character and Reputation in the Community Including any Letters from Clients, Friends, and Lawyers in Support of the Character and General Reputation of the Attorney. Christina Baeza testified that the Respondent is an honest man.”
All of these findings were made in the panel’s preliminary report, which did not suggest the appropriate sanction. The panel reserved that determination until after it had received the parties’ supplemental written arguments. In Swanson’s supplemental argument, he suggested an admonition would be appropriate punishment, but he did not cite an ABA Standard for support. The Disciplinary Administrator suggested that ABA Standards 4.42, 4.62, and 6.11 were applicable. Standard 4.42 provides:
“Suspension is generally appropriate when:
(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or
(b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.”
Standard 4.62 provides:
“Suspension is generally appropriate when a lawyer knowingly deceives a client, and causes injury or potential injury to the client.”
Standard 6.11 provides:
“Disbarment is generally appropriate when a lawyer, with the intent to deceive the court, makes a false statement, submits a false document, or improperly withholds material information, and causes serious or potentially serious injury to a parly, or causes a significant or potentially significant adverse effect on the legal proceeding.”
The Disciplinary Administrator suggested indefinite suspension would be the most appropriate sanction and that the payment of full restitution should be a requirement for reinstatement.
After receiving each party’s recommendations, the hearing panel deliberated and considered the applicable ABA Standards. In addition to the Standards suggested by the Disciplinary Administrator, the hearing panel found ABA Standard 4.41,5.11, and 7.2 were also applicable. Standard 4.41 provides:
“Disbarment is generally appropriate when:
(b)a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to a client; or
(c) a lawyer engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to a client.”
Standard 5.11 states:
“Disbarment is generally appropriate when:
(b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice.”
Finally, Standard 7.2 provides:
“Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system.”
In making its recommendation for sanctions, the hearing panel expressed that it was disturbed by Swanson’s conduct in this case. The panel observed that this court recently decided a case that is similar in nature to this case: In re Bishop, 285 Kan. 1097, 179 P.3d 1096 (2008).
In Bishop, the respondent provided false information to his clients regarding the status of the representation for an extended period of time. While acknowledging that each disciplinary sanction must be based upon the specific facts and circumstances of the violations and the aggravating and mitigating circumstances presented in the case, because of similarities, the hearing panel believed a comparison was warranted. The hearing panel, therefore, quoted the following passage from Bishop:
“Bishop engaged in clearly intentional conduct that caused serious injury. Bishop knowingly failed to perform services for a client and, for years, knowingly lied about that conduct. Bishop’s deceptions continued even after the complaints as seen by the varied explanations Bishop gave during the course of these proceedings. Additionally, Bishop has been disciplined once previously.
“Given the facts of this case, particularly the long period of intentional deception, we conclude indefinite suspension is appropriate.” 285 Kan. at 1109.
Based upon the findings of fact, conclusions of law, and the Standards listed above, the hearing panel stated that an argument could be made for Swanson’s disbarment. But based upon the specific facts and circumstances of the violations and the aggravating and mitigating circumstances presented in the case, the hearing panel unanimously recommended that Swanson be indefinitely suspended from the practice of law in the state of Kansas. Nev ertheless, the panel did not adopt the Disciplinary Administrator’s recommendation that restitution be required before reinstatement.
As we review the parties’ positions and the panel’s recommendations, we unanimously reject Swanson’s suggestion of published censure. Under the facts and circumstances of this case, censure is not an appropriate discipline. Reprimand or censure is generally appropriate when a lawyer engages in negligent conduct that causes injury or potential injury to a client. See ABA Standards 4.43,4.63,7.3. Swanson’s conduct was more than negligent; at least some of Swanson’s conduct was clearly intentional. Therefore, as in Bishop, some length of suspension from the practice of law is an appropriate sanction.
In considering whether this suspension should be a disbarment or a lesser penalty, a majority of the court agrees with the hearing panel and the Disciplinary Administrator that suspension is a more appropriate remedy than disbarment; a minority of the court would impose the harsher penalty. As to the length of that suspension, the majority of the court notes the mitigating factors and concludes that Swanson should be suspended for a period of 2 years.
It Is Therefore Ordered that the respondent, J. Gregory Swanson, be and he is hereby disciplined by suspension from the practice of law in Kansas for a period of 2 years effective upon the filing of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2008 Kan. Ct. R. Annot. 266), for violations of KRPC 1.1 (2008 Kan. Ct. R. Annot. 400) (competence); KRPC 1.3 (2008 Kan. Ct. R. Annot. 415) (diligence); KRPC 1.4 (2008 Kan. Ct. R. Annot. 432) (communication); KRPC 1.5 (2008 Kan. Ct. R. Annot. 448) (fees); KRPC 1.16(a)(3) and (d) (2008 Kan. Ct. R. Annot. 508) (declining or terminating representation); KRPC 3.2 (2008 Kan. Ct. R. Annot. 525) (expediting litigation); KRPC 8.1 (2008 Kan. Ct. R. Annot. 579) (bar admission and disciplinary matters); KRPC 8.4(c) (2008 Kan. Ct. R. Annot. 586) (misconduct); Supreme Court Rule 207(b) (2008 Kan. Ct. R. Annot. 295) (duties of the bar and judiciary); and Supreme Court Rule 211(b) (2008 Kan. Ct. R. An-not. 313) (formal hearings).
It Is Further Ordered that the respondent shall comply with Supreme Court Rule 218 (2008 Kan. Ct. R. Annot. 350).
It Is Further Ordered that the costs of this action be assessed to the respondent and that this order be published in the official Kansas Reports. | [
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|
The opinion of the court was delivered by
Luckert, J.:
This interlocutory appeal follow's a district judge’s decision to grant a new medical malpractice trial because of jury misconduct. More specifically, the district judge found the defendant was prejudiced by the jury’s agreement to average each juror’s assessment of negligence and to accept the resulting quotient as the jury’s verdict. Subsequently, the district judge certified three questions for interlocutory appeal; (1) Was it error to admit the testimony of the plaintiff s medical malpractice liability expert who had retired from clinical practice several months before the medical treatment that gave rise to this case? (2) Was it error to sua sponte recall the jury? and (3) Did the judge commit error by questioning the jurors without allowing the attorneys to directly participate in the questioning?
After accepting the interlocutory appeal, the Court of Appeals broadened the scope of the issues, finding defense counsel’s conduct in interviewing the jurors to be inappropriate and determining that the issue of whether a new trial should be granted was inextricably intertwined with the interlocutory issues. Then, finding error in the procedure followed in recalling the jurors, in the district judge’s questioning of the jurors, and in the district judge’s decision that there had been a prejudicial quotient verdict, the Court of Appeals reversed the district court’s grant of a new trial. Williams v. Lawton, 38 Kan. App. 2d 565, 170 P.3d 414 (2007).
Dr. Steve Lawton filed a petition for review, raising several issues relating to the Court of Appeals’ jurisdiction and holdings. Upon our review, we conclude the Court of Appeals had jurisdiction over all the issues it considered, but we reverse the holding that the district judge erred in granting a new trial because the determination of whether there was a quotient verdict is inherently factual and substantial competent evidence supports the district judge’s findings.
District Court Proceedings
This medical malpractice action was filed after Richard Williams suffered complications from an adult circumcision performed by Lawton. A jury found Lawton 54 percent at fault for Williams’ injuries and awarded $200,000 for past and present pain and suffering and $1,775 million for future pain and suffering.
Lawton subsequently filed several motions, including a motion for a cap on damages to be applied to the verdict pursuant to K.S.A. 60-19a02 and a motion for judgment as a matter of law (notwithstanding the verdict) or, in the alternative, a motion for new trial. See K.S.A. 60-250(b). Lawton’s motion for a new trial was based on several issues, including two that are pertinent to this appeal. First, Lawton renewed pretrial and trial objections to the qualifications of Williams’ standard-of-care expert witness, Philip Diggdon, M.D. Lawton argued that K.S.A. 60-3412 required Diggdon’s disqualification because Diggdon had retired approximately 3 months before Lawton treated Williams. Because Diggdon’s professional time at the time of the incident was entirely devoted to legal consulting, Lawton argued the expert was disqualified.
Second, Lawton’s motion for a new trial alleged juror misconduct, an argument he supported by the affidavit of a juror, Juror A.S., which defense counsel procured after conducting postverdict systematic telephone interviews of the jurors. The affidavit stated in part that “the verdict was reached by averaging all of the jurors’ opinions.”
After holding a hearing and considering the affidavit of Juror A.S. and the affidavits of two other jurors submitted by the plaintiff s counsel, the district judge issued an order requesting that all the jurors return for questioning. Eight of the 12 jurors appeared and separately testified in response to the judge’s inquiries. The district judge conducted the questioning; the attorneys were not permitted to directly participate.
Based upon the jurors’ responses, the district judge found, inter alia, there was juror misconduct by means of an improper quotient verdict and the misconduct “substantially prejudiced” Lawton’s rights. Consequently, the district judge granted Lawton’s motion for a new trial. Subsequently, the proceedings were stayed when the district judge granted the parties’ request to seek an interlocutory appeal.
Court of Appeals’ Decision
The Court of Appeals granted Lawton’s request for an interlocutory appeal and, by subsequent separate order, granted Williams’ interlocutory cross-appeal.
Scope of Interlocutory Appeal
From the start, the parties disagreed about the scope of issues in this appeal. In their appellate briefs, each party focused on the certified question or questions corresponding with their individual grievances. Lawton appealed the district judge’s decision to admit Diggdon’s expert testimony, and Williams questioned the procedures that led to the recall of the jury. Lawton argued, however, that Williams inappropriately attempted to broaden the Court of Appeals’ scope of review by raising other issues related to the dis trict judge’s order granting a new trial and seeking a reinstatement of the jury’s verdict. Lawton asserted that the Court of Appeals’ jurisdiction was limited to consideration of the three issues certified for interlocutory appeal by the district judge and, therefore, the district judge’s order granting a new trial was neither appealed nor appealable.
The Court of Appeals, in a split decision, disagreed with Law-ton’s contention that the scope of the interlocutory appeal should be so limited and stated two reasons for its decision. First, the majority stated that if it were to address the specific certified questions related to juiy recall without considering whether a new trial was warranted, any decision issued would be merely advisory, which is prohibited. 38 Kan. App. 2d at 570. As support for this reasoning, the majority noted that the district judge expected the Court of Appeals “to review the key questions of law and determine whether jury recall and its outcome adequately supported the order for a new trial.” 38 Kan. App. 2d at 571. As the Court of Appeals majority observed, the district judge noted that only legal questions can be certified for interlocutory appeal and the question of whether there was a quotient verdict was factual but “that what goes up is the whole motion for new trial and not just whatever issue I say goes up.” 38 Kan. App. 2d at 571.
Second, the Court of Appeals majority stated that each of the three certified questions “were derived from and were the lynchpins” for the district judge’s order granting a new trial. 38 Kan. App. 2d at 572. The majority cited Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, Syl. ¶ 2, 997 P.2d 681 (2000), where this court held that issues not meeting the criteria for an interlocutory appeal may be reviewed along with appealable issues where the issues are “ ‘inextricably intertwined’ ” and must be reviewed “ ‘to allow meaningful review and promote judicial economy.’ ” 38 Kan. App. 2d at 571.
Retired Justice, now Senior Judge Edward Larson, assigned to the Court of Appeals panel, concurred in part with and dissented in part from the majority opinion. 38 Kan. App. 2d at 586-97. As to the question of scope, Senior Judge Larson would have held that the district judge improperly certified the questions for interlocu toiy appeal and that the Court of Appeals improvidently granted consideration of the same. 38 Kan. App. 2d at 586 (Larson, J., dissenting in part). Nevertheless, because the interlocutory appeal was accepted by the Court of Appeals, Senior Judge Larson concurred with the majority’s view that the issues relating to jury recall and the granting of a new trial were inextricably intertwined and, thus, it was necessary to consider all issues pertaining to the district judge’s order for a new trial. 38 Kan. App. 2d at 587-88 (Larson, J., concurring in part).
Qualification of Plaintiff’s Expert Witness
Having determined there was no procedural bar to the consideration of the substantive issues, the Court of Appeals addressed the certified question which is the subject of Lawton’s appeal: Did the district judge err in finding the plaintiff s sole expert witness, Diggdon, met the criteria set forth in K.S.A. 60-3412 and in rejecting the argument that the error was a basis for ordering a new trial? The majority, with Senior Judge Larson concurring, concluded that the record supported the district judge’s finding that Diggdon spent at least 50 percent of his professional time during the 2 years preceding the incident in his actual clinical practice, regardless of the fact that he retired approximately 3 months before the incident and became a full-time consultant thereafter. 38 Kan. App. 2d at 574; 38 Kan. App. 2d at 588-89 (Larson, J., concurring in part). The Court of Appeals held that the district judge correctly interpreted and applied K.S.A. 60-3412, Diggdon properly testified on behalf of Williams, and the admission of Diggdon’s expert testimony was not a basis for granting a new trial. 38 Kan. App. 2d at 575.
Jury Recall and Questioning of Jurors
Next, the Court of Appeals addressed Williams’ interlocutory cross-appeal in which he challenged the district judge’s decision to recall the jury, arguing that the recall did not follow a party’s motion and was not timely. He also argued the trial judge erred in not allowing counsel to participate in the questioning of the recalled jurors and in asking jurors questions that invaded the mental proc esses of the jury. Finally, Williams argued Lawton had failed to show sufficient misconduct to warrant granting a new trial.
The Court of Appeals majority concluded that the district judge abused his discretion in granting a new trial and in implementing the procedures that led to the decision. 38 Kan. App. 2d at 581-84. As to defense counsel’s postverdict systematic contact of the entire jury “with the clear intention of exploring grounds to impeach the verdict,” the majority indicated it would be a “better practice” to undertake such action only with the knowledge and consent of the district judge. 38 Kan. App. 2d at 581.
Senior Judge Larson disagreed, finding nothing improper with the communications between counsel and the jurors. The dissent stated that requiring court approval would abandon long-time practice, severely limit attorneys in their “search for the truth and integrity of a jury’s verdict, and make misconduct of a jury unduly difficult to be discovered and rectified.” 38 Kan. App. 2d at 589 (Larson, J., dissenting in part).
The Court of Appeals majority further determined that the district judge violated Supreme Court Rule 181 (2008 Kan. Ct. R. Annot. 247), which prohibits jurors from being called for hearings on posttrial motions without a court order “after motion and hearing” to determine whether any jurors should be recalled. The majority held that Rule 181, if not expressly violated, was violated “in spirit.” 38 Kan. App. 2d at 582. Senior Judge Larson, dissenting on this point, noted that the district judge stated he was addressing the matter sua sponte but defense counsel apparently viewed this as an invitation for a motion and promptly accommodated the judge with an oral motion. 38 Kan. App. 2d at 590 (Larson, J., dissenting in part).
On a related issue, the Court of Appeals majority concluded that although the district judge’s personal questioning of jurors without the direct participation of counsel was not an abuse of discretion, the questions asked “may” have improperly invaded or probed the mental processes of the jurors. 38 Kan. App. 2d at 582. Again, Senior Judge Larson disagreed and would have found that the questions asked by the district judge related to the issues discussed and became specifically directed to whether the jurors had a prior agreement to be bound by the average which was taken by the jury and became its verdict on the liability issue. The questions, according to the dissent, did not violate the limitations of K.S.A. 60-441 because they generally related to the action taken by the jury, not the jury’s mental processes. 38 Kan. App. 2d at 590-94 (Larson, J., dissenting in part).
Quotient Verdict
The Court of Appeals next considered whether the jurors’ testimony evidenced a quotient verdict. The majority concluded that “the collective testimony of the jurors did not support jury misconduct” and. did not support a quotient verdict. 38 Kan. App. 2d at 583. The Court of Appeals’ majority held the circumstances were insufficient to set aside the jury’s verdict and to order a new trial. Thus, the Court of Appeals reversed the order granting a new trial and remanded with directions to reinstate the jury’s verdict. 38 Kan. App. 2d at 585-86.
Senior Judge Larson, in his dissent, would have affirmed the district judge because there was sufficient evidence to support the district judge’s finding of jury misconduct. Specifically, Senior Judge Larson pointed out that at least four of the eight jurors who appeared before the court for questioning indicated there was an advance agreement to average each juror’s suggested verdict and to use the resulting quotient as the jury’s verdict. 38 Kan. App. 2d at 595-97 (Larson, J., dissenting in part).
Analysis
1. Jurisdiction
We will first discuss Lawton’s argument that the Court of Appeals lacked jurisdiction over any issue other than the question of Diggdon’s qualifications. Specifically, Lawton raises three issues relating to jurisdiction. First, Lawton asks us to agree with Senior Judge Larson’s view that the Court of Appeals should not have granted Williams’ request for interlocutory appeal. Second, Lawton contends the issues raised by Williams — i.e., those related to the granting of a new trial — were not timely brought before the Court of Appeals because Williams did not submit his application for interlocutory appeal within 10 days of the district judge’s order as required by K.S.A. 2008 Supp. 60-2102(c). Third, even if Williams’ assertions were not time-barred, Lawton presents an alternative argument that the Court of Appeals exceeded its authority by addressing issues regarding the order granting a new trial. Lawton "asserts that appellate jurisdiction should have been limited to the three questions certified by the district judge.
Each of these issues is premised upon a question of whether the Court of Appeals and, in turn, this court have jurisdiction, to review the issues. It is well established that appellate jurisdiction is defined by statute; the right to appeal is neither a vested nor constitutional right. The only reference to appellate jurisdiction in the Kansas Constitution iterates this principle, stating the Kansas Supreme Court shall have “such appellate jurisdiction as may be provided by law.” Kan. Const., art. 3, § 3; Flores Rentals v. Flores, 283 Kan. 476, 480-81, 153 P.3d 523 (2007). The constitution is silent regarding the Court of Appeals, which is not a constitutional court but rather was statutorily created. In creating the Court of Appeals, the legislature limited the court’s jurisdiction, defining the circumstances under which there is jurisdiction to hear an appeal. As a result, Kansas appellate courts may exercise jurisdiction only under circumstances allowed by statute; the appellate courts do not have discretionary power to entertain appeals from all district court orders. Flores Rentals, 283 Kan. at 481; see Meddles v. Western Power Div. of Central Tel. & Utilities Corp., 219 Kan. 331, 333, 548 P.2d 476 (1976); Henderson v. Hassur, 1 Kan. App. 2d 103, 105-06, 562 P.2d 108 (1977).
The question of whether an appellate court has jurisdiction is a question of law over which the scope of review is unlimited. Cypress Media, 268 Kan. at 414; Vorhees v. Baltazar, 283 Kan. 389, 397, 153 P.3d 1227 (2007). If an appellate court does not have jurisdiction, it has a duty to dismiss an appeal. Flores Rentals, 283 Kan. at 480; Max Rieke & Brothers, Inc. v. Van Deurzen & Assocs., 34 Kan. App. 2d 340, 342-43, 118 P.3d 704 (2005).
a. Timeliness
Lawton asserts Williams’ initial application for an interlocutory appeal — raising, inter alia, the two certified questions regarding jury recall — was untimely under the 10-day filing requirement of K.S.A. 2008 Supp. 60-2102(c) and, therefore, the issues raised by Williams should not have been considered by the Court of Appeals. Although this issue was not discussed in the Court of Appeals’ opinion, appellate jurisdiction is a question that may be raised at any time, whether for the first time on appeal or even on the appellate court’s own motion. Vorhees, 283 Kan. at 397. Consequently, we consider the issue.
Williams concedes that his application was not filed within 10 days of the order that certified the questions for interlocutory appeal. Nevertheless, he argues the application was timely because it was filed within 10 business days plus 3 days for mailing.
In fact, Williams’ application was filed 17 days after the August 5, 2006, order which allowed the interlocutory appeal. However, under K.S.A. 2008 Supp. 60-206(a), intermediate Saturdays, Sundays, and legal holidays are excluded in the computation of any time period less than 11 days. August 5, 2006, was a Friday. When intervening Saturdays and Sundays are excluded from the counting, the 10th day was Friday, August 18, 2006, but Williams did not file his application for interlocutory appeal with the Clerk of the Appellate Courts until August 21, 2006. Hence, if a 3-day mailing period is not applicable, Williams’ application is untimely.
The 3-day mailing rule is stated in K.S.A. 2008 Supp. 60-206(d):
“Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon such parly and the notice or paper is served upon such party by mail, three days shall be added to the prescribed period.”
According to Lawton, this provision does not extend Williams’ time to file his application for interlocutory appeal because the plain language of K.S.A. 2008 Supp. 60-2102(c) controls and it makes no mention of service. Rather, K.S.A. 2008 Supp. 60-2102(c) specifies the application for interlocutory appeal must be filed “within 10 days after the entry of the order” allowing an interloe utory for appeal. Supreme Court Rule 4.01 (2008 Kan. Ct. R. An-not. 30) also provides that when an appeal is sought under the provisions of K.S.A. 2008 Supp. 60-2102(c), an application for permission to take such an appeal shall be served within 10 days “after the filing of the order from which an appeal is sought to be taken.”
Based solely upon the language of these provisions, Lawton’s argument seems sound. Nevertheless, the persuasiveness is diluted by analogous authority in which this court has applied the 3-day mailing rule even though the triggering provision did not mention service. In such cases, this court has reasoned that other statutes and rules require judges to serve orders on the parties to the litigation. See Danes v. St. David’s Episcopal Church, 242 Kan. 822, 824-27, 752 P.2d 653 (1988).
In Danes, the specific question was whether the appellant had timely filed postverdict motions; the triggering action was the entry — not service — of judgment. Nevertheless, the court noted that K.S.A. 60-258 requires the clerk of the court to “ ‘serve a copy of the judgment form on all attorneys of record within three days.’ ” 242 Kan. at 824. Similarly, but with broader application, Supreme Court Rule 134 (2008 Kan. Ct. R. Annot. 217) provides:
“Whenever a judge shall make a ruling .on a motion or application of any kind and there are parties affected who have appeared in the action but who are not then present, either in person or by their attorneys, the judge shall cause written notice of such ruling to be sent to the parties or attorneys forthwith.”
In light of these provisions, the court held that “where notice of the entry of judgment is mailed in compliance with K.S.A. 60-258 and Rule 134, the time for filing postjudgment motions or taking an appeal starts to run when the notice is mailed, and the three-day extension as provided in K.S.A. 60-206(e) applies.” 242 Kan. at 827.
This holding from Danes is not directly applicable, however, because the entry of an order certifying questions for interlocutory appeal — which is the order triggering the running of the 10 days in this case — is not a judgment and K.S.A. 60-258 does not apply. Nevertheless, Rule 134, which applies to all rulings made by a judge, does. A failure to apply that rule would result in traps for the unwary, having the 3-day rule apply in some cases and not in others.
Here, although the district judge orally advised the parties of his decision to allow the interlocutory appeal during the telephone conference, the ruling was documented several days later in an order which included specific findings. The entry of this order triggered the judge’s duty to “cause written notice of such ruling to be sent” (Rule 134), and also triggered the time in which the parties had to file an application for interlocutory appeal. Hence, the effect of Rule 134 is that the 3-day mailing rule of K.S.A. 2008 Supp..60-206(d) extends the 10-day period for fifing an application for interlocutory appeal under K.S.A. 2008 Supp. 60-2102(c). Applying the 3-day mailing rule in this case, Williams’ application for an interlocutory cross-appeal was timely.
b. Appropriateness of Interlocutory Appeal
Lawton also argues the Court of Appeals erred in granting an interlocutory appeal. In arguing the issue, Lawton relies primarily on points made by Senior Judge Larson in his dissent. He opined that the Court of Appeals should have held that the district judge improperly certified the questions for interlocutory appeal, should have denied permission for consideration of the interlocutory appeal-and cross-appeal, and should have held that such permission was improvidendy granted. Williams, 38 Kan. App. 2d at 586 (Larson, J., dissenting in part); see City of Manhattan v. Eriksen, 204 Kan. 150, 155, 460 P.2d 622 (1969) (finding permission to take an interlocutory appeal was improvidendy granted).
K.S.A. 2008 Supp. 60-2102(c) defines when an interlocutory appeal may be taken and provides:
‘When a district judge, in making in a civil action an order not otherwise appealable under this section, is of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, the judge shall so state in writing in such order. The court of appeals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within 10 days after the entry of the order under such terms and conditions as the supreme court fixes by rule.”
In clear terms, K.S.A. 2008 Supp. 60-2102(c) gives the Court of Appeals discretion to grant an interlocutory appeal but limits that discretion by stating criteria which must be met before an interlocutory appeal may be properly allowed by the district court and accepted by the Court of Appeals. See State v. Brown, 285 Kan. 261, 294, 173 P.3d 612 (2007) (discretion is abused if applicable law is not considered and applied). Under 60-2102(c), the interlocutory appeal must: (1) involve a controlling question of law, (2) relate to an issue on which there is a substantial ground for difference of opinion, (3) materially advance the ultimate termination of the litigation, and (4) be timely filed.
Lawton argues that the determinative issue decided by the Court of Appeals — whether there was an improper quotient verdict justifying a new trial — is a question of fact and, further, that none of the issues will materially advance the termination of the litigation. Lawton points out that several issues were still pending in the district court, including the constitutionality of the caps on damages imposed by K.S.A. 60-19a02. Because a further appeal seems likely, the dissent viewed the interlocutory appeal as serving only to delay the litigation and cause piecemeal consideration of the issues. 38 Kan. App. 2d at 586-87 (Larson, J., dissenting in part).
Lawton and Senior Judge Larson in the dissent make several valid points regarding whether this interlocutory appeal advances the litigation, and generally we do not favor interlocutory appeals of motions for a new trial. See Dougan v. Rossville Drainage Dist., 270 Kan. 468, 485-86, 15 P.3d 338 (2000). Nevertheless, because our standard of review is abuse of discretion, we cannot say the Court of Appeals erred in accepting the interlocutory appeal, especially in light of the fact that one issue — the question of Dr. Diggdon’s qualifications — meets the criteria for an interlocutory appeal. First, the determination of Diggdon’s qualifications is a question of law because the facts are not disputed and resolution of the issue hinges on the interpretation of K.S.A. 60-3412. See In re Adoption of A.A.T., 287 Kan. 590, 627, 196 P.3d 1180 (2008) (statutory interpretation is a question of law). Second, there is substantial room for disagreement on the issue. Third, resolution of the issue has the potential of terminating the litigation because, if Diggdon is not qualified and his testimony cannot be properly admitted, Williams did not meet his burden of establishing a deviation from the standard of care and the defense motion for judgment as a matter of law (notwithstanding the verdict) should be granted. See Esquivel v. Watters, 286 Kan. 292, 296, 183 P.3d 847 (2008) (plaintiff in medical malpractice case must show deviation from standard of care and that deviation caused plaintiff s injuries; ordinarily expert testimony is required to meet this burden). Fourth, the timeliness of Lawton s interlocutory appeal of this issue has not been questioned. Consequently, it was an appropriate exercise of discretion to accept the interlocutory appeal on this issue.
Having accepted the question of the expert’s qualifications, we cannot say the Court of Appeals abused its discretion in accepting the other questions and allowing the interlocutory appeal. The only reason to accept interlocutory jurisdiction of the issue regarding the expert witness’ qualifications is to determine if the evidence should be admitted during a new trial, and the other certified questions — those raised by Williams — get to the heart of the question of whether there should be a new trial. This interrelationship of issues relates to Lawton’s next argument regarding whether the Court of Appeals had pendent jurisdiction to consider the issues relating to the new trial.
c. Limited Jurisdiction on Interlocutory Appeal
The pendent jurisdiction question arises from Lawton’s argument that the Court of Appeals exceeded its authority by considering the district judge’s order granting a new trial. If Lawton is correct, appellate jurisdiction should have been limited to the questions certified by the district judge — Diggdon’s qualifications, the district judge’s decision to recall the jury, and the judge’s questioning of the jurors — and none of these questions raises the issue of whether a new trial should have been granted. Yet, the Court of Appeals considered that question.
In response, Williams essentially argues that the Court of Appeals — and this court — acquired pendent interlocutory jurisdiction to hear all issues related to the district judge’s order granting a new trial because the issues were inextricably intertwined with the three questions certified for interlocutory appeal.
The principle of pendent jurisdiction, also known as supplemental jurisdiction, typically involves a federal court’s exercise of jurisdiction over state law claims brought within the same controversy. Rodriguez-Tocker v. Estate of Tocker, 35 Kan. App. 2d 15, 25-26, 129 P.3d 586 (2006); see In re Aramark Leisure Services, 523 F.3d 1169, 1175 (10th Cir. 2008) (supplemental jurisdiction under 28 U.S.C. § 1367 [2006]); Paper, Allied, Chemical v. Slurry Explosive Corp., 107 F. Supp. 2d 1311, 1327 (D. Kan. 2000) (same). Nevertheless, federal courts and some states have applied the underlying concept in determining the permissible scope of an interlocutory appeal. The resulting conclusion has been that the appeal is not necessarily limited to the precise questions that may have been certified by the district court and an appellate court may have supplemental interlocutory jurisdiction. See, e.g., Paper, Allied-Industrial v. Continental Carbon, 428 F.3d 1285, 1291 (10th Cir. 2005) (interlocutory appeals originate from district court’s order itself; appellate court can and should address different legal question if it controls disposition of certified order); McFarlin v. Conseco Services, LLC, 381 F.3d 1251, 1255 (11th Cir. 2004) (under statute governing interlocutory review, scope of appellate review is not limited to precise question certified by district court because court’s order, not certified question, is brought before appellate court); Kronemeyer v. U.S. Bank National Ass'n, 368 Ill. App. 3d 224, 226-27, 857 N.E.2d 686 (2006) (where appealable issues are intertwined with nonappealable issues, appellate court may go beyond certified question and consider appropriateness of order giving rise to interlocutory appeal); Armijo v. Wal-Mart Stores, Inc., 142 N.M. 557, 564, 168 P.3d 129 (Ct. App. 2007) (on interlocutory appeal, appellate court’s scope of review may extend beyond question posed); but see Heatherly v. Merrimack Mut. Fire Ins. Co., 43 S.W.3d 911, 914 (Tenn. App. 2000) (for interlocutory appeals, only issues certified in trial court’s order granting permission to seek interlocutory appeal and in appellate court’s order granting interlocutory appeal can be raised).
Although there is little Kansas case law considering this concept, pendent or supplemental interlocutory jurisdiction was found to exist in Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 997 P.2d 681 (2002). In Cypress Media, this court recognized that in most circumstances an appellate court’s task in an interlocutory appeal is to answer certified questions rather than to rule on the propriety of all underlying orders made by the district court. 268 Kan. at 414; see Adams v. St. Francis Regional Med. Center, 264 Kan. 144, 151, 955 P.2d 1169 (1998) (“The purpose of an interlocutory appeal is to resolve a ‘controlling question of law’ that would materially expedite a final determination in the case.”). Nevertheless, an exception was recognized that applies where a certified issue in an interlocutory appeal is “inextricably intertwined” with other issues that do not meet the criteria for an interlocutory appeal. Under the exception, the other issues may also be reviewed to allow meaningful review and promote judicial economy. Cypress Media, 268 Kan. 407, Syl. ¶ 2.
In Cypress Media, the district court had issued an order compelling the defendant to give the plaintiff unredacted copies of attorney fee billing statements due to the defendant’s failure to provide an adequate privilege log. The district court certified its ruling for interlocutory appeal, and the Court of Appeals granted the defendant’s application for an interlocutory appeal before transferring the case to this court. The defendant argued that this court also had jurisdiction to consider the district court’s prior ruling that the billing statements were not per se privileged, even though the district court had refused to certify that ruling for interlocutory appeal. According to the defendant, the privilege issue was “inextricably intertwined” with the district court’s order to compel production, as that order was a reaction to the defendant’s continued claim that the billing records were privileged. The Cypress Media court agreed, explaining that “the broader per se privilege issue was at the heart of and inextricably intertwined with the privilege log issue which has the effect of resolving the ultimate issue in this case.” 268 Kan. at 415.
Here, the Court of Appeals majority concluded the issues were so intertwined with the certified questions that addressing the spe cific certified questions regarding juiy recall without considering whether a new trial was warranted would require the issuance of an advisory opinion, which is prohibited. Williams, 38 Kan. App. 2d at 570; see State ex rel. Morrison v. Sebelius, 285 Kan. 875, 885, 179 P.3d 366 (2008) (“[T]he giving of advisory opinions is an executive, not a judicial, power.”); Smith v. Martens, 279 Kan. 242, Syl. ¶ 1, 106 P.3d 28 (2005) (“The general rule is that an appellate court does not decide moot questions or render advisory opinions.”). The district judge apparently struggled with this question of scope when deciding what questions to certify for interlocutory appeal, recognizing the determination there had been a quotient verdict justifying a new trial was the penultimate issue but concluding that “the quotient verdict issue is a mixed issue of law and fact. . . . [I]t is not something for which I can make the interlocutory findings.”
In his concurring and dissenting opinion, Senior Judge Larson noted this statement and agreed, recognizing the mixed character of the question was a reason the Court of Appeals should not have granted the interlocutory appeal. 38 Kan. App. 2d at 588 (Larson, J., dissenting in part). Regardless, albeit with reluctance, Senior Judge Larson — who authored the court’s decision in Cypress Media — agreed that “[i]t is logical that when the issue of the expert witness testimony under K.S.A. 60-3412 was certified for an interlocutory appeal, the authority for jury recall and the questioning of the jurors became inextricably intertwined with the additional issue of whether a new trial should have been granted.” 38 Kan. App. 2d at 588 (Larson, J., concurring in part). Consequently, pursuant to this court’s ruling in Cypress Media, 268 Kan. 407, Syl. ¶ 2, Senior Judge Larson concurred that it was proper to consider all the issues pertaining to the district judge’s expert witness ruling and the order granting a new trial. Williams, 38 Kan. App. 2d at 588-89 (Larson, J., concurring in part).
We agree. The certified questions — which are questions of law — are inextricably intertwined with the question of whether the order for new trial was properly granted. A determination that there was error in allowing Diggdon’s testimony would be meaningless if there was no right to a new trial, and there would be no right to a new trial if the district judge erred in recalling the jurors, in questioning the jurors, or in finding jury misconduct. In other words, why correct evidentiary or procedural errors if a new trial would not be justified? The answers would be academic, and a remand would not be warranted. Thus, in order for there to be a meaningful review, it is necessary to consider whether there was a quotient verdict that justified a new trial and whether correct procedures were followed in reaching that decision. Consideration of all these issues also promotes judicial economy. Thus, the Court of Appeals correctly exercised its pendent or supplemental interlocutory jurisdiction.
2. Recall of Jurors
The next several issues relate to Lawton’s contention that, under the circumstances, the district judge did not abuse its discretion in ordering a recall of the jury. He argues that postverdict juror interviews by defense counsel or counsel’s representative, as in this case, are approved by Supreme Court Rule 169 (2008 Kan. Ct. R. Annot. 240) and that the recall of jurors was permissible and warranted, subject to Supreme Court Rule 181 (2008 Kan. Ct. R. An-not. 247).
The Court of Appeals majority disagreed, concluding an abuse of discretion was “inherent” in the district judge’s rulings because: (a) “[s]ystematic juror by juror contact by counsel should not be undertaken without consent of court,” (b) “[s]ua sponte recall is contrary to . . . Rule 181,” and (c) the recall was “based solely on [Juror A.S.’s] affidavit” which was uncorroborated. 38 Kan. App. 2d at 581-82. With regard to the affidavit of Juror A.S., the Court of Appeals majority stated the district judge should have first called Juror A.S. to testify in person for further “corroboration” before ordering a recall of the entire jury. 38 Kan. App. 2d at 582.
Lawton contends that the Court of Appeals’ ruling “utterly chills the exercise of rights under Rules 169 and 181” and that, in so ruling, the majority misinterpreted the two cases upon which it relied, State v. Ruebke, 240 Kan. 493, 513, 731 P.2d 842, cert. denied 483 U.S. 1024 (1987), and State v. McDonald, 222 Kan. 494, 496-97, 565 P.2d 267 (1977). He also argues that there is no legal support for the Court of Appeals’ requirement that a recall must first be restricted to the single juror who averred there was jury misconduct.
Standard of Review
Recalling jurors to answer for misconduct is within the sound discretion of the district judge. State v. Kirkpatrick, 286 Kan. 329, 351, 184 P.3d 247 (2008); State v. Jenkins, 269 Kan. 334, 338, 2 P.3d 769 (2000); State v. Macomber, 244 Kan. 396, 407, 769 P.2d 621, cert. denied 493 U.S. 842 (1989), overruled on other grounds State v. Rinck, 260 Kan. 634, 923 P.2d 67 (1996); see K.S.A. 60-259. We recendy discussed jury recall in Kirkpatrick:
“ ‘Jurors may be recalled for post-trial hearings only by order of the court after a hearing on a request to recall the jury. A recall of the jury is not a routine matter. Jury service is a public duty of citizens and recall of jurors after their service has ended to testily as to events occurring in the jury room during deliberations is a serious step. That step is to be undertaken only for just cause. The procedure should never be utilized as a fishing trip upon a losing party’s hope that jury misconduct might surface if the jurors could be questioned under oath. The burden is upon the party seeking an order to recall the jurors to show the necessity for the order.’ [Citation omitted.]” 286 Kan. at 351 (quoting Ruebke, 240 Kan. at 513).
Additional Facts
Here, upon discharge from jury duty, the district judge released the jurors from their admonitions and, consistent with Rule 169, instructed:
“You have now completed your duties as jurors in this case and are discharged with the thanks of the court. The question may arise whether you may discuss this case with the lawyers who presented it to you. For your guidance the court instructs you that whether you talk to anyone is entirely your own decision. It is proper for the attorneys to discuss the case with you and you may talk with them, but you need not. If you talk to them you may tell them as much or as little as you like about your deliberations or the facts that influenced your decision. If an attorney persists in discussing the case over your objections, or becomes critical of your service either before or after any discussion bas begun, please report it to me.” (Emphasis added.) 2008 Kan. Ct. R. Annot. 241.
Rule 169 mandates the giving of the substance, if not the letter, of this instruction upon completion of a jury trial.
Subsequent to the trial, defense counsel’s legal assistant, consistent with defense counsel’s usual postverdict practice, telephoned jurors. Some jurors could be reached and some could not. During the conversation with Juror A.S., the juror volunteered that the jury foreperson had persuaded the other members of the jury that it was not 10 members of the jury who had to agree on a verdict but an average of all 12 jurors’ opinions. According to Juror A.S., the jurors agreed on this method of reaching the verdict. The jury foreperson tallied the average. Juror A.S. agreed to provide an affidavit, which stated in part:
“3. None of the jurors wanted to read the jury instructions. [The jury foreperson] stated that it was not 10 members of the jury who had to agree on the verdict, but that an average of all 12 jurors’ opinions would be taken to reach the verdict. The other jurors agreed on this method of reaching a verdict. The verdict was reached by averaging all of the jurors’ opinions.
“4. Instead of following the judge’s instructions on how to tabulate the plaintiff s damages, the jurors kept wanting to discuss how much money the plaintiff needed. [The jury foreperson and another juror] . . . urged that the plaintiff was no longer insurable and the jury needed to make up for his not having insurance. . . .
“6. The jury discussed the fact that their award should include money to cover the plaintiff s attorney’s expenses. . . .
“7. In my opinion, Dr. Lawton did not get a fair trial from the jury. No one wanted to take the necessary time to review the evidence and reach a verdict. The jurors decided ... to average all of their opinions to reach a verdict. . . . Despite my efforts to get the other jurors to review the jury instructions, consider the evidence that was relevant to the plaintiff s damages and discuss the issues until we could all agree on the verdict, I was unsuccessful and the verdict was reached through unfair means.”
Lawton filed the affidavit to support his renewed motion for judgment as a matter of law and, in the alternative, motion for new trial. See K.S.A. 60-250(b); K.S.A. 60-259(d) (motion for new trial may be initiated and supported by presentation of affidavits). He argued the affidavit supported two grounds which justified the new trial: (1) The jury rendered an improper quotient verdict and (2) the jury failed to follow the district judge’s instructions when calculating its damages award.
Williams responded by filing a motion in opposition to Lawton’s motion and attached the affidavits of two other jurors, Juror B.B. and Juror C.D., the juiy foreperson. Juror B.B.’s affidavit indicated that “everyone got a chance to say whether they agreed or disagreed on each point that the jury sheet instructed us to consider” and that they agreed on the liability verdict. Juror B.B.’s affidavit also stated that, with regard to the amount of damages, “we went around the table and each juror gave an amount.” There was no mention of averaging.
In addition, Juror B.B.’s affidavit stated: “One juror mentioned that Mr. Williams wouldn’t be eligible for insurance; however, another juror quickly pointed out that the lack of insurance was not a part of the case. Thus, we did not consider insurance .... Furthermore, we never discussed attorney fees.”
Juror C.D.’s affidavit indicated that the jurors agreed to take turns giving their opinions on the matters to be considered. The affidavit suggested that after all the jurors “came to the conclusion that there was a degree of fault by Dr. Lawton,” each juror was supposed to write down a percentage to “see where we were.” Juror C.D.’s affidavit also stated that the jurors “followed the jury instructions.” There was no mention of averaging.
After conducting a motions hearing and considering the three affidavits submitted by counsel, the district judge stated he was considering recalling the jury sua sponte. Defense counsel then orally moved to recall the jury and, after hearing arguments of both counsel, the judge ordered the recall. By letter from the court, all the jurors were requested, but not ordered, to return to provide evidence. Eight of the jurors appeared and gave testimony.
a. Defense Counsel’s Interviews of Jurors
In discussing the procedure that was followed, the Court of Appeals majority disapproved of defense counsel conducting postverdict juror interviews without prior approval from the district court, stating: “We are most offended by the systematic contact of jurors after the verdict in an attempt to impugn the integrity of the verdict,” and “[wjhen the verdict is not itself inherently suspicious and there is no misconduct reported by jurors, counsel must not invade the sanctity of the jury process in the hope of discovering such misconduct.” Williams v. Lawton, 38 Kan. App. 2d 565, 584, 170 P.3d 417 (2007).
Lawton argues this view is directly contradictoiy to the instruction the district judge gave the jury and, indirectly, counsel. In fact, the district judge emphasized that it had not ordered either side to refrain from contacting the jurors. The district judge further opined that “under Kansas law under those circumstances, as long as you’re not harassing and as long as you followed my instructions with regard to the nature of the conduct and contact, attempting to contact any one of those 12 jurors was not improper.”
In addition, Lawton argues the Court of Appeals’ ruling is contrary to Rule 169, which was followed by the district judge in this case and, as previously quoted, specifically instructs that “[i]t is proper for the attorneys to discuss the case with you and you may talk with them, but you need not.” 2008 Kan. Ct. R. Annot. 241.
The Court of Appeals majority recognized Rule 169 grants permission to have contact and an exchange between willing jurors and counsel. Yet, the majority went on to hold that “the better practice dictates that the systematic contact of the entire jury, juror by juror, with the clear intention of exploring grounds to impeach the verdict be undertaken only with the knowledge and consent of the court.” 38 Kan. App. 2d at 581. In addition, the majority stated: “[W]here an affidavit results from such an effort without approval of the court, the affidavit should be viewed with a healthy amount of circumspection.” 38 Kan. App. 2d at 581. To support these conclusions, the Court of Appeals majority relied on McDonald, 222 Kan. at 496-97, and Ruebke, 240 Kan. at 513.
In McDonald, after the trial, defense counsel learned of the existence of “exceedingly vituperative publications” that could have adversely prejudiced McDonald. 222 Kan. at 496. Rased partially on this prejudicial pretrial publicity, defense counsel filed a motion for new trial. At the hearing on McDonald’s motion, defense counsel stated that he had not interviewed die jurors because he thought he should first obtain the district court’s consent and asked permission for both trial counsel to discuss the possible prejudicial pretrial publicity with the jurors. The district court denied the mo tion and further concluded that the publication had absolutely no effect on the trial.
On appeal, holding the district court erred, the McDonald court found that an inquiry into whether the jurors were aware of the inflammatory publication, read it, and discussed it was relevant and not proscribed by K.S.A. 60-441. 222 Kan. at 496. The McDonald court opined that the district court should have granted counsel leave to interview the jurors, stating:
‘While there is nothing in our law to prohibit counsel from interviewing jurors after the conclusion of trial, leave of court is required before jurors may be called for hearings on posttrial motions. Supreme Court Rule No. 181 (220 Kan. LXVIII). We think counsel pursued a proper course in seeking permission of the court to interview jurors. When in doubt in an area such as this, counsel cannot be faulted for seeking guidance from the court.” 222 Kan. at 497.
Hence, tine court recognized the distinction between the requirements of Rule 181, which specifies that a jury cannot be recalled without a court order, and Rule 169, which states that attorneys may question jurors after the completion of a trial and jurors may answer. Permission of the court was not required before interviews could be conducted and, in fact, the McDonald court specifically stated that nothing prohibited counsel from malting contact without permission, although the court did not fault counsel for seeking permission when in doubt. 222 Kan. at 497.
Similarly, Ruebke does not support the Court of Appeals’ conclusion. In Ruebke, the district court refused to recall the jury to testify about allegations of juror misconduct brought by Ruebke. Upon review of the record on appeal, this court determined that the district court had permitted the interview of jurors both during and after the trial, but Ruebke had no valid evidence on which to base his motion for a new trial. Thus, this court held that the district court did not abuse its discretion by denying Ruebke’s request to recall the jury in hopes of turning up some form of juror misconduct. 240 Kan. at 513-14. This holding — as recently reiterated in Kirkpatrick, 286 Kan. at 355—underscores that a jury should not be recalled unless necessary and for good cause shown. It does not, however, require — or even recommend — that counsel seek permission before interviewing willing jurors.
Further, other authorities are contrary to the Court of Appeals’ view that permission of the court is required before counsel may conduct postverdict interviews with willing jurors. See, e.g., State v. Blocker, 211 Kan. 185, 197, 505 P.2d 1099 (1973) (after verdict has been returned it is not improper for an interested attorney to interview members of jury so long as the limitations of applicable rule are observed); Kansas Rule of Professional Conduct (KRPC) 3.5(b) (2008 Kan. Ct. R. Annot. 543) (“A lawyer shall not: . . .[b] communicate . . . with a member of a jury . . . until after the discharge of the jury from further consideration of the case.”).
These authorities express several policy considerations that are counter to the Court of Appeals majority’s view. Many of these policies were summarized by Senior Judge Larson, who opined that imposing a court-approval requirement on postverdict communication between attorneys and jurors “would be an abandonment of long-time practice, severely limit counsel in their search for the truth and integrity of a jury’s verdict, and make misconduct of a jury unduly difficult to be discovered and rectified.” Williams, 38 Kan. App. 2d at 589 (Larson, J., dissenting in part). In addition, the Kansas Association of Defense Counsel, in its amicus brief, adds that postverdict communication with jurors assists attorneys in improving their trial technique and is a valuable educational tool.
These points are well taken. If jury conduct deprives any party of a fair trial, counsel should not be foreclosed from seeking evidentiary support for efforts to rectify the injustice. The Court of Appeals majority’s approach would make it difficult, if not impossible, to ever present a factual basis suggesting improper conduct by a jury. Moreover, we have recognized the educational benefit of posttrial communication with jurors. This recognition occurred in the context of judicial education and was implicit in our amendment of Rule 169 to include a statement in the closing instruction to the jury that advises jurors they may receive a survey from the Kansas Commission on Judicial Performance and urges them to complete the survey. The same principle holds true for attorneys; feedback from jurors is an important self-education tool.
Nevertheless, as the Court of Appeals majority stressed, the judicial system is constructed on policies that value the finality of a judgment. Hence, jury verdicts are not lightly set aside. In addition, the judicial system values the contributions of jurors and strives to protect them from criticism or harassment. See Concannon, Impeaching Civil Verdicts: Juror Statements as Prejudicial Conduct, 52 J.K.B.A. 201 (Fall 1983). Still, the ultimate goal of the judicial system is not to simply conclude a trial with a verdict. Rather, the goal is to achieve a fair and impartial verdict that is consistent with the court’s instructions.
In our view, K.S.A. 60-441, K.S.A. 60-444, Rule 169, and Rule 181 strike an appropriate balance and protect these various interests. This balancing begins with Rule 169, which permits postverdict jury contact to the extent a juror wishes to communicate with an attorney. See Crystal, Limitations on Zealous Representation in an Adversarial System, 32 Wake Forest L. Rev. 671, 693 (1997) (“On balance, therefore, it seems proper for lawyers to be able to interview jurors after the case is over, so long as lawyers do not harass the jurors.”); Diehm, Impeachment of Jury Verdicts: Tanner v. United States and Beyond, 65 St. John L. Rev. 389, 434 (1991) (“[I]f a party is precluded from interviewing jurors, the probability of that party’s impeaching a verdict is substantially diminished. There is a danger that such limitations may prevent litigants from learning of egregious situations where the impeachment of the verdict is appropriate.”).
Limits are imposed, however. Rule 169 itself makes clear that it is inappropriate to harass or criticize jurors. Additionally, under Rule 181, an attorney cannot seek to recall jurors without a motion and order of the court. Further, limits are imposed if the recall is allowed in that K.S.A. 60-441 and K.S.A. 60-444 define the limitations on the questions that may be asked of jurors. Therefore, the limitations imposed by the Court of Appeals majority are not necessary.
Consequently, we conclude the Court of Appeals majority overstepped clear precedent in narrowing the window of opportunity for postverdict communication between counsel and jurors. Under Supreme Court Rule 169, attorneys may discuss a trial with willing jurors after their discharge from jury duty and may do so without seeking permission from the district judge unless contrary orders have been given. In this case, defense counsel and counsel’s representative did not err by conducting telephone interviews of jurors after the trial.
b. Supreme Court Rule 181
Williams next asserts that the district judge erred in ordering the jury recall sua sponte. As previously mentioned, the Court of Appeals majority concluded that the district judge violated Supreme Court Rule 181 (2008 Kan. Ct. R. Annot. 240), if not expressly, in “spirit.” Williams, 38 Kan. App. 2d at 582. In seeking review of that conclusion, Lawton contends the district judge had the inherent authority to recall the jury on its own motion and further argues the district judge did not violate the rule.
Rule 181 provides:
“Jurors shall not be called for hearings on post-trial motions without an order of the court after motion and hearing held to determine whether all or any of the jurors should be called. If jurors are called, informal means other than subpoena should be utilized if possible.” (Emphasis added.) 2008 Kan. Ct. R. Annot. 247.
In this case, at the posttrial motions hearing, the district judge pointed to the lack of a specific request for a recall, stating, “[Gjiven the nature of the affidavits, neither side has requested recall. And the issue is whether either side is requesting recall. . . . I’m considering a sua sponte recall.” The judge also explained, “I’m considering . . . whether as a matter of law I have to have a party request it or whether I can do it. I don’t believe the rule says anything. It just says the Court may.”
Focusing on this statement, the Court of Appeals majority referenced the Rule 181 requirement that jurors shall not be called for hearings on posttrial motions “without an order of the court after motion and hearing”(emphasis added) and concluded: “We believe this rule is intended to protect the integrity and finality of the verdict from precipitative action of the court.” 38 Kan. App. 2d at 582.
The Court of Appeals’ statement is correct to the extent Rule 181 requires a “motion and hearing” on the matter before a recall may be ordered. Nevertheless, in this case the district judge did not act until Lawton advanced allegations of jury misconduct in his K.S.A. 60-250(b) alternative motion for a new trial and attached the affidavit of Juror A.S. in support of the motion. In this way, Lawton’s procedural posture precipitated the court’s discussion regarding jury recall. Williams also attached juror affidavits to support his opposition to Lawton’s request for a new trial. Further, Lawton’s attorney made an oral motion to recall the jury, stating, “I did not ask for it [recall] in the brief [on the motion for a new trial] because I initially felt like the affidavit we had was sufficient. However, if the Court is not satisfied with the affidavit from [Juror A.S.], then I would request we recall an examination.” See Cornejo v. Probst, 6 Kan. App. 2d 529, 532, 630 P.2d 1202, rev. denied 230 Kan. 817 (1981) (“The only purpose to be served by filing a motion for recall of the jurors would be to ultimately obtain a new trial on the basis of evidence presented at a hearing on the motion to support the allegation of juror misconduct.”). Counsel for both parties then presented their respective and opposing arguments regarding why the juiy’s conduct was or was not improper. Only after consideration of the parties’ arguments did the district judge order a jury recall.
As a result, although the district judge clearly indicated a willingness to act on its own and, in fact, characterized the action as occurring sua sponte, the judge acted after the defense motion, and an order was not entered until after the oral motion and hearing. Under those circumstances, Rule 181 was not violated, and we do not reach the broader question of whether a district judge can ever recall jurors sua sponte.
c. Court Questioning of Jurors
Although the district judge’s questioning of jurors without allowing counsel to ask questions was one of the certified questions, on petition for review of the Court of Appeals’ decision the parties do not discuss the question to any great extent, mentioning the issue only briefly. We will not, therefore, discuss the issue at length. We agree with the Court of Appeals’ conclusion that the district judge did not abuse his discretion when he restricted the questioning. Counsel for both parties were permitted to submit proposed questions to the court up to 5 days before the recall hearing, and counsel was present during the hearing and able to consult with the court and make objections. Conduct of the hearing in this manner allowed the district judge to maintain control of the proceeding to prevent any feeling of harassment of the jurors. It is within the district judge’s discretion to control the questioning and the format of an evidentiary hearing conducted after jurors are recalled. See, e.g., Singletary by and through Barnett Banks v. Lewis, 619 So. 2d 351, 353-54 (Fla. Dist. App. 1993) (interview questions were submitted to the district judge by counsel, district judge interviewed jurors and allowed additional questioning and summary statements by counsel) .
d. Jury Recall Warranted
Rather than faulting the procedure utilized, the Court of Appeals faulted the questions asked, concluding they invaded the thought processes of the jury. Closely related to this criticism is the Court of Appeals’ conclusion that the district judge abused its discretion in granting a new trial.
The law governing impeachment of jury verdicts is founded on two competing considerations. On one hand, is the requirement that the case be decided solely on the evidence presented and the instructions given to a fair and impartial jury. To this end, K.S.A. 60-444(a) provides that a juror is allowed to testify as a witness “to conditions or occurrences either within or outside of the jury room having a material bearing on the validity of the verdict or the indictment, except as expressly limited in K.S.A. 60-441.” On the other hand, there is a need for confidentiality of deliberation and verdict finality. Diehm, 65 St. John L. Rev. at 394; see Concannon, 52 J.K.B.A. 201. This need results in a conclusion that public policy forbids the questioning of a juror on the mental processes individual jurors used in reaching a verdict because “there is no possible way to test the truth or veracity of the answers.” Kincaid v. Wade, 196 Kan. 174, 178, 410 P.2d 333 (1966). This policy is codified in K.S.A. 60-441, which prevents a court from considering any evidence that attempts to “show the effect of any statement, conduct, event or condition upon the mind of a juror as influencing him or her to assent to or dissent from the verdict or indictment or concerning the mental processes by which it was determined.”
In balancing these competing policies, this court normally does not allow testimony or affidavits of jurors to impeach a verdict where it is not obvious from the verdict that the jury failed to follow jury instructions. Jones v. Sigg, 261 Kan. 614, 621, 930 P.2d 1077 (1997). Exceptions are recognized, however, if a jury intentionally disregards a court’s instructions or violates one or more of the essential formalities of proper jury conduct. One such long-standing exception applies “where a juror alleges the jury entered into a conscious conspiracy to circumvent the deliberation process by engaging in conduct which produces a quotient verdict.” 261 Kan. at 621-22 (citing City of Ottawa v. Heathman, 236 Kan. 417, 425, 690 P.2d 1375 [1984]).
The line between the exceptions and the general rule, which admittedly is thin and often difficult to discern, was discussed in Verren v. City of Pittsburg, 227 Kan. 259, 607 P.2d 36 (1980). Verren moved for a new trial because of jury misconduct and submitted the affidavits of two jurors, which stated that the jury had, contrary to the court’s instructions, specifically included in the damages award an amount for attorney fees. This court observed that under K.S.A. 60-441 and K.S.A. 60-444(a) a juror may not impeach a verdict on any ground inherent in the verdict itself, and a juror may not divulge the considerations that personally influenced him or her in arriving at the verdict or the reasoning that led him or her to the final decision. 227 Kan. at 260.
The Verren court then stated there are certain formalities of conduct which a jury is required to follow. The jury’s failure to obey these essential formalities of conduct can invalidate its verdict, and evidence may be offered to impeach a verdict when the evidence will show the jurors intentionally disregarded the court’s instructions or violated one or more of the essential formalities of proper jury conduct. 227 Kan. at 261. The Verren court explained that to guard against invading the mental processes of a juror, it must be proven that there was a conscious conspiracy by the members of the jury to disregard and circumvent the instructions on the law given by the court. If affidavits of jurors state these circum stances, the truth and veracity of those testifying to such misconduct can and should be tested before a verdict is set aside. 227 Kan. at 262.
Applying these general principles, the Verren court noted that it was not evident from the verdict that the jury had failed to follow instructions, but there was evidence the jurors “conspired together so as to circumvent the comparative negligence law.” 227 Kan. at 263. Such a conspiracy, the court noted, could only be discovered by posttrial questioning of the jurors to determine how they reached their verdict.
Thus, under Verren, where a juiy recall is based on a jurors affidavit, the matters set forth in the affidavit, if proven, must establish a conscious conspiracy by the members of the juiy to disregard and circumvent the district judge’s instructions on the law. Relying on Verren, this court explained in Heathman, 236 Kan. at 420: “[S]ince the jurors operate as a unit, public policy demands that misconduct insofar as possible be discouraged. Courts, therefore, have allowed inquiry into physical matters and misconduct which come to the attention of other members of the jury panel and may be verified or denied.”
Implementation of these concepts in the context of a quotient verdict is illustrated by Heathman. In that eminent domain case, the landowners filed a motion for new trial and supported the motion with an affidavit of one of the jurors. The affidavit indicated: “ ‘The jury members agreed that they would each put down on an individual piece of paper what they felt the damages were to the Heathman property. Those individual figures would be added and totaled, divided by six, and those were the damages they would be bound by,’ ” 236 Kan. at 418, and the jury foreman suggested the “before value” of the property.
All six members of the jury were called to testify at a hearing on the motion. Each juror testified that he or she wrote on separate slips of paper the amount to be awarded Heathman in damages. The amounts the jurors had written on the slips of paper were then added together, the total divided by six, and then the average was rounded off to the nearest dollar. Four jurors testified there had been no agreement in advance by the jury to be bound by the final figure, and two jurors thought there had been such a prior agreement. All jurors agreed without any discussion to use the amount the jury foreman suggested for the value before the taking.
Although the district judge found the jury did not reach a quotient verdict, the court did find that the jury failed to follow its instruction as to the method for determining damages and, in doing so, acted contrary to the law for condemnation cases. The district judge granted the motion for a new trial.
On appeal, this court affirmed the district judge’s decision to grant a new trial. We stated: “Based on the affidavit by the juror that the jury had failed to discuss the issues and deliberately disregarded the court’s instructions on the method of determining damages, the trial court acted properly when it questioned the jurors.” 236 Kan. at 425-26.
In the present case, the affidavit of Juror A.S. indicated that the jury had agreed to reach a verdict by averaging all the jurors’ opinions and that the jury had considered Williams’ possible lack of insurance and his responsibility for attorney fees. Hence, the affidavit raised the specter of a conscious conspiracy to disregard and circumvent the court’s instructions.
With respect to allegations of jury misconduct due to a quotient verdict, it must be emphasized that mere allegations of “averaging” do not establish an impermissible quotient verdict; jurors may average their suggested verdict so long as there is no prior agreement to be bound by the result of mathematical computation. Merando v. A.T. & S.F. Rly. Co., 232 Kan. 404, 408, 656 P.2d 154 (1982); see Siruta v. Hesston Corp., 232 Kan. 654, 669, 659 P.2d 799 (1983); Blevins v. Weingart Truck & Tractor Service, 186 Kan. 258, 263-65, 349 P.2d 896 (1960). It is the agreement to be bound in advance by the average figure that “is the evil which courts have found objectionable and which impeaches the verdict and subverts the deliberative process by which jurors must arrive at their verdict. [Citations omitted.]” Merando, 232 Kan. at 408; see Cott v. Peppermint Twist Mgt. Co., 253 Kan. 452, 477-78, 856 P.2d 906 (1993) (impermissible quotient verdict is one in which “ ‘the jurors agree in advance to return as their verdict the amount obtained by averaging the figures each juror records as his verdict and subse quently returns a verdict that is the direct product of such an agreement.’ ”).
In Blevins, this court explained:
“The jurors are as much entitled to strike a quotient to see what their average thinking is, to serve as a working basis, as they are to let each juror give his suggested verdict orally and permit some member of the jury to strike a rough quotient by mental arithmetic. So long as there is opportunity for full discussion and deliberation concerning the question of damages, and so long as each juror gives his own independent agreement to the sum arrived at, after he knows what the sum is, there is no misconduct and no ground for a new trial. And this rule applies even though the verdict returned was exactly or nearly the amount of the quotient.” 186 Kan. at 264.
Where, however, there is an advance agreement made before any juror can possibly know the ultimate figure to which the jury has been committed, the verdict is infirm as a “gambling” verdict. 186 Kan. at 263-64.
The critical determination, therefore, is whether the jurors agreed in advance to return as their verdict the amount obtained by averaging the figures each juror records as his or her verdict and to thereafter refuse to reexamine or discuss the amounts of damages or the percent of liability. See, e.g., Jones, 261 Kan. at 620. Here, the affidavit of Juror A.S. provided evidence of an antecedent agreement of the jurors to be bound by the averaging process — to be bound by the “quotient.” Such misconduct on the part of the jury, if established, requires the verdict to be set aside. Plus, other jury misconduct was alleged as well, involving the improper consideration of insurance and attorney fees. See, e.g., State v. Scott, 286 Kan. 54, 103, 183 P.3d 801 (2008) (following jury verdict, defendant filed motion for new trial, arguing several jurors had improperly read from the Bible and other religious materials during deliberations; the trial court decided it was appropriate to recall the jurors and hold a hearing). The averments made in this case provided a legitimate basis for the jury recall.
In addition, these subjects were valid areas of inquiry by the district judge, as he probed whether the jury had disregarded instructions. The overall focus of his questions was consistent with the type of questions this court has allowed in past cases, i.e., ques Rons focused on whether the jurors followed the instructions and whether they have agreed in advance to be bound by the averaging technique of a quotient verdict. We have specifically held that these areas of inquiry do not delve into the impermissible area of an individual juror’s mental processes. Verren, 227 Kan. at 263; see Johnson v. Haupt, 5 Kan. App. 2d 682, 686, 623 P.2d 537 (1981). Hence, we disagree with the Court of Appeals majority’s conclusion that the judge’s questions were improper.
The Court of Appeals majority also concluded that the district judge should have first heard the testimony of Juror A.S. before recalling the other jurors. We find no requirement for such a procedure, and the Court of Appeals cites none. Hence, it would seem that the process would be within the district judge’s discretion, i. e., the judge had discretion to conduct a limited hearing or to proceed to a full hearing. We find no basis for concluding that the district judge abused his discretion in moving to a full hearing, especially in light of the fact that Juror A.S.’s affidavit established a basis which, if proven, justified a new trial. See Cornejo, 6 Kan. App. 2d at 532.
Consequently, we cannot conclude that the district judge abused his discretion in finding that a jury recall was warranted or in the manner he conducted the evidentiary hearing.
3. New Trial
Next, Lawton contends that the Court of Appeals erred by reversing the district judge’s order granting a new trial. He argues the Court of Appeals erroneously reweighed the evidence in determining the juiy’s verdict was not a quotient verdict and disregarded the district judge’s alternative grounds for granting a new trial.
General Principles
Juiy misconduct will not justify the granting of a new trial unless the misconduct is shown to have substantially prejudiced a party’s rights. State v. Cook, 281 Kan. 961, 966, 981-82, 135 P.3d 1147 (2006); State v. Hopkins, 257 Kan. 723, Syl. ¶ 2, 896 P.2d 373 (1995); State v. Goseland, 256 Kan. 729, 735, 887 P.2d 1109 (1994). A party claiming prejudice has the burden to prove prejudice. State v. Fulton, 269 Kan. 835, Syl. ¶ 1, 9 P.3d 18 (2000). The determination of whether a new trial is warranted is reviewed for an abuse of discretion. Heathman, 236 Kan. 417, Syl. ¶ 1.
When the allegation is that the prejudice arises because the jury reached a quotient verdict, this court has previously held in Foster v. City of Augusta, 174 Kan. 324, 331, 256 P.2d 121 (1953):
“It is a rule of this court that whether a verdict was or was not a quotient verdict is a question of fact for the trial court to determine (Fitch v. State Highway Comm., 137 Kan. 584, 587, 21 P.2d 318; Claggett v. Phillips Petroleum Co., [150 Kan. 191,] 201, 202 [, 92 P.2d 52 (1939)]), and the judgment having been entered and approved by the trial court in the instant case, this court will not disturb the judgment on that account.”
Because the determination of whether there is a quotient verdict is a question of fact, an appellate court reviews the district judge’s findings to determine if the findings are supported by substantial competent evidence. Substantial evidence is such legal and relevant evidence as a reasonable person might regard as sufficient to support a conclusion. Bellamy v. State, 285 Kan. 346, 354-55, 172 P.3d 10 (2007); LSF Franchise REO I v. Emporia Restaurants, Inc., 283 Kan. 13, 19, 152 P.3d 34 (2007);. In determining if that standard has been met, an appellate court examines the record to determine whether substantial competent evidence supports the district judge’s findings, not to find evidence which would overturn the district judge’s findings that the jury’s verdict was or was not a quotient verdict. Morrison v. Kansas City Coca-Cola Bottling Co., 175 Kan. 212, 221, 263 P.2d 217 (1953).
The appropriate application of this standard when, as in this case, there is conflicting evidence about whether there was a quotient verdict can be found in a Florida Court of Appeals case, Niebla v. Flying Tigers Line, Inc., 533 So. 2d 816 (Fla. Dist. App. 1988). In that case, at a hearing after the jury was recalled, some jurors testified that they did not agree to be bound by a quotient verdict. Others could not recall such an understanding. Still others clearly and distinctly testified that the jurors did consent in advance to be bound by a quotient verdict. Despite the conflicting testi mony, the trial court found that the jury had reached a quotient verdict and granted a new trial.
Considering the plaintiffs appeal from that order, the Florida Court of Appeals held it was bound by the trial court’s determination. 533 So. 2d at 816. Stating that the trial court is authorized to resolve conflicts in the evidence in order to determine whether the jury’s decision was the product of a quotient verdict, the Florida Court of Appeals refrained from reweighing the evidence and observed that the trial court found there was a prehminary agreement or understanding among the jurors that each would select a figure as representing his or her opinion of the value of damages and that the sum of those amounts divided by the number of jurors would be accepted as the verdict and that amount was, in fact, accepted by the jury. The Florida Court of Appeals held, therefore, the jury rendered an improper verdict, which constituted a ground for a new trial. 533 So. 2d at 816-17; see also Producers Chemical Company v. McKay, 348 S.W.2d 91, 99 (Tex. Civ. App. 1961) (trial court’s implied findings on issue of jury misconduct where such findings were made from conflicting testimony of jurors was binding on appellate court).
Here, die district judge carefully weighed the testimony of each juror who testified. In its memorandum order granting a new trial, the court stated: “Given that some of the jurors believed in advance that they would be bound by the quotient, the court finds that not all the jurors gave their own independent agreement to the verdict . . . , even though they were given the opportunity to say whether they, disagreed with the tally.” The district judge continued:
“Accordingly, because . . . some of the jurors believed they had agreed before taking the average that the average would be the verdict of the jury, because the court has found that there was not an opportunity for full discussion and deliberation of the . . . total and because the court has found that not all the jurors gave their own independent agreement to the . . . tally, the court finds the jury’s verdict on the issue of percentage fault was an improper quotient verdict.”
There is substantial competent evidence to support these conclusions. The testimony of at least four jurors indicated that there was an advance agreement that the number resulting from the tallied average would be the verdict of the jury. And some jurors’ testimony showed there was a brief vote to confirm that the jurors agreed with the resulting number, but there was no discussion on the matter. Therefore, not only did the affidavit of Juror A.S. provide the first-hand observation of an agreement to submit the tallied average as the verdict, but the testimony of several other jurors confirmed this as well.
The Court of Appeals recognized the fact-based nature of the determination of whether there was a quotient verdict but stated “we are able to apply well-established legal principles to the undisputed evidence and the findings of the district judge without reweighing the testimony of individual jurors.” 38 Kan. App. 2d at 583. In doing so, the Court of Appeals stated that it was undisputed that only some of the jurors agreed to the quotient verdict.
The differences in the jurors’ testimony had been noted by the district judge, who added that he had “closely looked at and listened to each juror as they testified.” From that testimony, he concluded there was a quotient verdict and an agreement to limit deliberations. While we agree with the Court of Appeals that the district judge could have weighed the evidence differently, our role is not to seek out evidence contrary to the district judge’s findings or to focus on evidence contrary to those findings.
We note, however, that the Court of Appeals seemed to be legitimately concerned that the district judge focused on the mental processes of individual jurors rather than the agreement of the entire jury to be bound by the quotient. Indeed, there is some ambiguity in the district judge’s findings in this regard. Nevertheless, in concluding his findings, the district judge clearly and unambiguously found that “there was not an opportunity for full discussion and deliberation of the” number determined by averaging each juror’s suggested verdict. This finding addresses the “evil” of quotient verdicts, i.e., the lack of an “opportunity for full discussion and deliberation” and the inability for “each juror [to give] his own independent agreement to the sum arrived at, after he knows what the sum is.” Blevins, 186 Kan. at 264.
The Court of Appeals majority stated an additional rationale for its conclusion that the district judge erred in finding jury miscon duct when it focused on evidence that the jurors took a confirming vote after the quotient verdict was calculated. This analysis ignores authority in support of the position that, once die jurors have made their antecedent agreement and have obtained the quotient, their subsequent ratification of the quotient, even though accompanied by some brief discussion, will not cure the verdict of its invalidity if the amount of the verdict is based upon the jury’s view of the quotient process. “[A] subsequent polling of the jury does not diminish the harm already caused by the agreement.” Johnson, 5 Kan. App. 2d at 686; see also Klein v. Swift & Co., 248 Iowa 563, 569, 81 N.W.2d 469 (1957) (“[N]or can a quotient verdict be cured by the [jurors] subsequently adopting it or its equivalent as their verdict, if the agreement entered into or controlled the subsequent adoption of the verdict returned”); Central Motor Co. v. Gallo, 94 S.W.2d 821, 823 (Tex. Civ. App. 1936) (finding little importance to evidence that juxy voted on and adopted the quotient as tallied; “It merely evidenced a continued willingness to adopt an improper method for determining the extent of liability.”). Here, the district judge specifically found that there was no opportunity for meaningful discussion after the tally when the quotient verdict was calculated.
Ultimately, when the question of whether there was a quotient verdict is raised, the district judge must weigh the evidence to determine if there was an antecedent agreement that invalidates the jury verdict. Here, although conflicting, there was evidence that the jury agreed in advance to be bound by the tallied average. Because it is the duty of die district judge, not an appellate court, to resolve conflicts in evidence and because substantial competent evidence supports the district judge’s findings that there was an improper quotient verdict, those findings are affirmed. See Bellamy, 285 Kan. at 354-55; Morrison, 175 Kan. at 221.
Under the circumstances, it is unnecessary to address Lawton’s contention that the Court of Appeals erred by disregarding the district judge’s alternative grounds for granting a new trial — the cumulative effect of the jury’s usage of an extrapolated verdict and quotient verdict, consideration of attorney fees, and consideration of insurance. We note, however, that the district judge found the evidence of other jury misconduct was “not enough to independently warrant a finding of substantial prejudice to the rights of Lawton to a fair and impartial trial.”
The remainder of the district judge’s analysis — that the quotient verdict prejudiced Lawton and he is thus entitled to a new trial— was an appropriate exercise of the district judge’s discretion.
The Court of Appeals erred by reversing the order granting a new trial.
4. Expert Qualifications
Finally, Lawton contends the plaintiffs expert, Dr. Diggdon, failed to meet the criteria set forth in K.S.A. 60-3412 and, therefore, the district judge court abused his discretion in admitting Diggdon’s testimony and in rejecting this basis for a new trial. Williams argues the trial court did not misinterpret the statute and applied it correctly. The Kansas Association of Defense Counsel, in its amicus briefs, supports Dr. Lawton’s position.
The interpretation of a statute is a question of law over which an appellate court has unlimited review. The fundamental rule of statutory interpretation requires courts to give effect to the intent of the legislature as expressed. Thus, when the language of a statute is plain and unambiguous, a court must give effect to that language rather than determine what the law should or should not be, speculate as to legislative intent, add something not readily found in the statute, resort to canons of statutory construction, or consult legislative history. In re Adoption of A.A.T., 287 Kan. 590, 627, 196 P.3d 1180 (2008), cert denied 556 U.S. 1184 (2009).
K.S.A. 60-3412 provides:
“In any medical malpractice liability action, as defined in K.S.A. 60-3401 and amendments thereto, in which the standard of care given by a practitioner of the healing arts is at issue, no person shall qualify as an expert witness on such issue unless at least 50% of such person’s professional time within the two-year period preceding the incident giving rise to the action is devoted to actual clinical practice in the same profession in which the defendant is licensed.” (Emphasis added.)
The facts relevant to the application of this statute establish that Williams’ surgery was performed on February 1, 2002, and he first saw Dr. Lawton on January 24, 2002. The district judge concluded the incident, for purposes of K.S.A. 60-3412, occurred February 1, 2002. At that time, Dr. Diggdon, who was 74 years old when he testified, had retired from his clinical practice entirely on October 31, 2001, approximately 3 months before Williams’ surgery. A physician since 1958 and a board-certified urologist since 1968, Diggdon had performed thousands of surgeries like the one performed on Williams, including “probably in the hundreds, high hundreds” on adult patients. According to Diggdon’s testimony at deposition and trial, when he practiced full-time he saw up to 70 patients per week. Between January 24, 2000, and October 31, 2001, he saw patients in his office or a clinic. In January 2000, Diggdon worked all day on Mondays and half-days on Tuesdays, Wednesdays, Thursdays, and Fridays. During 2000, he saw 6 to 12 patients per day; the numbers dwindled with health-care reimbursement cutbacks. Diggdon indicated that he had testified as an expert in other cases prior to this case; he had forensically reviewed approximately 28 cases over a 2-year period before the trial.
The district judge concluded that Diggdon qualified as an expert under K.S.A. 60-3412 and gave the following explanation in his memorandum opinion:
“From January 1, 1997 to October 31, 2001, Dr. Diggdon was engaged in clinical practice, seeing patients in his office. During this time period, Diggdori[s] office was open all day on Mondays, and four hours per day on Tuesdays, Wednesdays, Thursdays, and Fridays. Diggdon testified, in trial or at deposition, that by February 2000, he was seeing approximately 6 to 12 patients per day. Importantly, Diggdon testified that the drop in patients was due to the fact patients stopped coming. He said that the drop in patients was not due to any desire to see fewer patients.
“Dr. Diggdon testified at trial that if one totaled all the hours he spent in clinical practice seeing patients in the office in the two years before February 1, 2002, even counting the months of no clinical patients from October 31, [2001] to February 1, 2002, he spent more than 50 percent of his time in actual clinical practice. In addition, Diggdon testified that more than fifty percent of his total income during that same two year period came from actual clinical practice.”
Lawton argues that Diggdon was not qualified because for approximately 3 months preceding this incident, he had no clinical practice and spent 100 percent of his professional time as an expert witness and Diggdon was seeing patients on a part-time basis for the remainder of the 2 years preceding October 31, 2001. Lawton contends that K.S.A. 60-3412 requires that a physician witness be a full-time professional throughout the 2-year period and devote 50 percent of his or her time to clinical practice.
The Court of Appeals found that K.S.A. 60-3412 clearly instructs the trial court to look at the entire 2 years preceding the incident and determine if at least 50 percent of the expert witness’ professional time was spent on clinical practice. 38 Kan. App. 2d at 574. Examining the record, the Court of Appeals determined the evidence supported the district judge’s finding that Diggdon spent at least 50 percent of his professional time during the 2 years preceding the incident on his clinical practice, “notwithstanding the fact of his retirement . . . immediately prior to the incident and his full-time consulting thereafter.” 38 Kan. App. 2d at 574.
As observed by the Court of Appeals, Lawton relies on legislative history suggesting that “hired guns” or “professional witnesses” who do not maintain a clinical practice were not intended to meet the statutory qualification requirements. See Wisker v. Hart, 244 Kan. 36, 43-44, 766 P.2d 168 (1988) (Statute “is intended to prevent the use of professional witnesses.’ That is, practitioners of healing arts who spend less than 50 percent of their professional time in actual clinical practice in their profession are considered to be professional witnesses’ rather than practitioners of their profession.”); Endorf v. Bohlender, 26 Kan. App. 2d 855, 864, 995 P.2d 896, rev. denied 269 Kan. 932 (2000) (same). Yet we need not delve into legislative histoiy because the language of K.S.A. 60-3412 is not ambiguous. See Board of Leavenworth County Comm'rs v. Whitson, 281 Kan. 678, 685, 132 P.3d 920 (2006) (resort to legislative history or statutory construction rules to ascertain legislative intent is appropriate only when a plain reading of the text of the statute yields an ambiguity or lack of clarity).
There is no requirement in the plain language of K.S.A. 60-3412 that the proposed expert witness devote any specific amount or percentage of his or her time to the professional practice of the healing arts at issue. In other words, there is no full-time professional practice requirement. The statute merely requires that at least 50 percent of “such person’s professional time within the two- year period preceding the incident” be “devoted to actual clinical practice,” i.e., patient care. Dawson v. Prager, 276 Kan. 373, 375-76, 76 P.3d 1036 (2003).
Furthermore, contrary to Williams’ argument, there is no language that requires the witness be continuously engaged in actual clinical practice during the entire preceding 2-year period. In other words, diere can be a lapse in providing patient care without there being an automatic disquahfication. The 2-year time period merely identifies the time parameters for applying the 50-percent time test. See Webster’s II New College Dictionary 1268 (2001) (defining “within” to mean “[i]nside the limits or extent of’ or “[i]nside the fixed limits of; not beyond”); see also Dawson, 276 Kan. at 383 (ordinary words are given their ordinary meaning in defining professional time devoted to actual clinical practice within 2 years preceding incident).
Hence, under K.S.A. 60-3412, the appropriate test to determine if a proposed medical malpractice liability expert witness is statutorily qualified to testify as to the applicable standard of care is to examine the 2 years preceding the incident giving rise to the suit to determine if during that time, when considered as a whole, the proposed expert devoted more than 50 percent of his or her professional time to actual clinical practice in the healing art at issue. This was the test applied by the district judge, and the Court of Appeals correctly upheld the decisions to admit the expert testimony at trial and to reject the admission of the expert testimony as a basis for a new trial.
The Court of Appeals’ decision affirming in part but reversing in part the district court is affirmed in part and reversed in part. The judgment of the district court is affirmed, and the case is remanded to the district court with directions to proceed with a new trial. | [
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The opinion of the court was delivered by
Rosen, J.:
Kendrick D. Gracey appeals from the sentence imposed following a plea of guilty to one count of aggravated indecent liberties with a child.
Facts
Kendrick Gracey has an IQ of 50 and was 21 years old at the time of the event that resulted in his conviction. On December 31, 2006, Wichita police investigated a report that Gracey sexually touched a 12-year-old girl. The victim told police that she was asleep on a living-room couch and was awakened by Gracey poking his finger on the outside of her pajama bottoms on top of her vagina. Gracey then ran out of the room. Shortly afterwards he peeked into the living room and gestured for the victim to approach him. He then told the victim that he liked her. In a taped interview, Gracey confirmed the victim’s story, adding that he thought she was 16 years old.
Under the facts of this case, the State had several filing options. This court was unable to learn from the record or from the attorneys arguing the case on appeal why the State elected to charge the most severe off-grid offense possible, K.S.A. 2006 Supp. 21-3504(a)(3)(A) and (c), subjecting Gracey to a presumptive fife sentence with a mandatory minimum 25 years’ imprisonment under K.S.A. 2006 Supp. 21-4643(a)(1)(C). That decision nevertheless was within the discretion of the prosecuting attorney, and on January 4, 2007, the State filed a complaint/information charging Gracey with one count of aggravated indecent liberties with a 12-year-old child. Gracey subsequently entered a plea of guilty to aggravated indecent liberties with a child, and tire State agreed to join in requesting a downward durational departure. The district court granted the durational departure but found it was barred by statute from granting the dispositional departure that Gracey sought. The district court sentenced Gracey to a prison term of 55 months, a downward durational departure from the low-end presumptive sentencing range for a severity-level 3, criminal-history H nondrug felony. Gracey filed a timely notice of appeal, and this court assumed jurisdiction under. K.S.A. 22-3601(b) and K.S.A. 21-3504(c) (conviction of off-grid person felony).
Analysis
Gracey initially argues that the district court lacked jurisdiction to sentence him under K.S.A. 21-4643 in light of a charging instrument that did not allege that he was over the age of 18.
Whether an information is sufficient to confer subject matter jurisdiction is a question of law over which an appellate court has unlimited review. State v. McElroy, 281 Kan. 256, 261, 130 P.3d 100 (2006). The test used to evaluate the sufficiency of the charging document depends upon when the issue was first raised. State v. Shirley, 277 Kan. 659, 661, 89 P.3d 649 (2004). When the charging document is challenged for the first time on appeal, the defendant must show that the alleged defect either: (1) prejudiced the defendant’s preparation of a defense; (2) impaired the defendant’s ability to plead the conviction in any subsequent prosecution; or (3) limited the defendant’s substantial rights to a fair trial. McElroy, 281 Kan. at 261. “The longer it takes for the defendant to challenge the sufficiency of the information, the greater the presumption of regularity. [Citation omitted.]” State v. Hall, 246 Kan. 728, 761, 793 P.2d 737 (1990), overruled in part on other grounds Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003).
The complaint/information reads as follows:
“THE STATE OF KANSAS )
Plaintiff, )
vs. )
"KENDRICK D. GRACEY ) Case No. 07CR0020
“B/M: DOB: XX/XX/1985 )
“SSN: XXX-XX-0039 )
“KDR: 308770621008 )
Defendant. )
“COMES NOW KIM T. PARKER, a duly appointed, qualified and acting Assistant District Attorney of the 18th Judicial District of the State of Kansas, and for and on behalf of said State gives the court to understand and be informed that in the County of Sedgwick, and State of Kansas, and on or about the 31st of December, 2006, A.D., one KENDRICK D. GRACEY did then and there unlawfully, lewdly fondle or touch DHM, a child under fourteen (14) years of age, to-wit: 12 years old, date of birth XX-XX-1994, who was not then married to KENDRICK D. GRACEY, done with the intent to arouse or satisfy the sexual desires of DHM, KENRICK D. GRACEY or both; all of the said acts then and there committed being contrary to the statutes in such cases made and provided and against the peace and dignity of the State of Kansas.”
It also states that the charged crime was:
“Contrary to Kansas Statutes Annotated 21-3504(a)(3)(A), Aggravated Indecent Liberties, Off-Grid Person Felony”
K.S.A. 21-3504 reads in relevant part:
“(a) Aggravated indecent liberties with a child is:
“(3) engaging in any of the following acts with a child who is under 14 years of age:
(A) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender, or both; . . .
“(c) Except as provided further, aggravated indecent liberties with a child as described in subsections (a)(1) and (a)(3) is a severity level 3, person felony. . . . When the offender is 18 years of age or older, aggravated indecent liberties with a child as described in subsection (a)(3) is an off-grid person felony.” (Emphasis added.)
K.S.A. 21-4643 provides for mandatory minimum terms of imprisonment of 25 or 40 years for certain sex offenders, with certain exceptions:
“(a)(1) Except as provided in subsection (b) or (d), a defendant who is 18 years of age or older and is convicted of the following crimes committed on or after July 1, 2006, shall be sentenced to a term of imprisonment for life with a mandatory minimum term of imprisonment of not less than 25 years unless the court determines that the defendant should be sentenced as determined in paragraph (2):
“(C) aggravated indecent liberties with a child, as defined in subsection (a)(3) of K.S.A. 21-3504, and amendments thereto.”
In addition, K.S.A. 22-3201(c) requires:
“When relevant, the complaint, information or indictment shall also allege facts sufficient to constitute a crime or specific crime subcategory in the crime seriousness scale.”
Gracey contends that the absence of any reference in the charging document to his age is a jurisdictional defect that precluded the district court from sentencing him to an off-grid felony. He further notes that his acknowledgment of rights specifically stated that he was pleading to a severity level 3 crime, and at the plea hearing the district court informed him that he was pleading guilty to a severity level 3 person felony.
The State responds that the charging document set out Gracey’s year of birth in its caption and stated at the bottom of the page that the charge was for an off-grid person felony. The validity of a charging instrument is to be tested by reading the document in its entirety, and the elements of the offense may be gleaned from the document as a whole. McElroy, 281 Kan. 256, Syl. ¶ 3.
The State notes that the plea agreement signed by Gracey and counsel for both parties states that Gracey entered a plea of guilty or nolo contendere to “Aggravated Indecent Liberties, a severity level 3 person felony, in violation of K.S.A. 21-3504(a)(3)(A). The penalty for this offense is life in prison with parole eligibility after defendant has served 25 full years in prison.”
An analysis of the two competing positions must take place in light of the standard of review. As noted earlier, Gracey must demonstrate that the failure to state his age in the text of the charging instrument prejudiced his preparation of a defense, impaired his ability to plead the conviction in any subsequent prosecution, or limited his substantial rights to a fair trial. See McElroy, 281 Kan. 256, Syl ¶ 2. In this context, the charging deficiency, if any, does not render the conviction invalid. The document averred in its caption that he was over the age of 18 and stated at the bottom that the charge was for an off-grid felony. The document specified all the elements of aggravated indecent liberties with a child. All of these circumstances demonstrate that Gracey was adequately informed of both the crime charged and the penalty. He does not contend that the preparation of his defense or his rights to a fair trial were impaired, and the conviction has not been shown to affect any subsequent prosecution. Based on our limited standard of review, we do not find reversible error in the district court’s decision to apply K.S.A. 21-4643 in sentencing Gracey.
Gracey next argues that the district court erred in refusing to consider a dispositional departure. The court found that it had statutory authority to impose a durational departure from the minimum sentence set out in K.S.A. 2006 Supp. 21-4643(a)(1), in effect at time of offense (enacted L. 2006 ch. 212, sec. 2), but it lacked the authority to impose a dispositional sentence of probation. Gracey argues on appeal that the district court erred in refusing to consider probation as a sentencing option.
This issue invites the court to analyze the Kansas statutory sentencing scheme. Interpretation of a sentencing statute is a question of law, and an appellate court’s standard of review is unlimited. State v. Ruiz-Reyes, 285 Kan. 650, 653, 175 P.3d 849 (2008). This court has jurisdiction to review a sentence imposed under K.S.A. 21-4643(a). State v. Ortega-Cadelan, 287 Kan. 157, Syl. ¶ 3, 194 P.3d 1195 (2008).
An appellate court’s first task is to “ascertain the legislature’s intent through the statutory language it employs, giving ordinary words their ordinary meaning.” State v. Stallings, 284 Kan. 741, 742, 163 P.3d 1232 (2007). When a statute is plain and unambiguous, this court will not speculate as to the legislative intent behind it and will not read the statute to add something not readily found in it. In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007), cert. denied 129 S. Ct. 36 (2008).
As a general rule, criminal statutes must be strictly construed in favor of the accused. Any reasonable doubt as to the meaning of the statute is decided in favor of the accused. This rule of strict construction is nevertheless subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. State v. Paul, 285 Kan. 658, 662, 175 P.3d 840 (2008).
As set out in our discussion of the previous issue, K.S.A. 21-4643(a)(1)(C) provides that a defendant 18 years of age or older who is convicted of the crime of aggravated indecent liberties with a child committed on or after July 1, 2006, must be sentenced to a term of imprisonment for life with a mandatory minimum term of imprisonment of not less than 25 years, subject to certain exceptions.
One exception is set out in K.S.A. 21-4643(d):
“On or after July 1, 2006, for a first time conviction of an offense listed in paragraph (a)(1), the sentencing judge shall impose the mandatory minimum term of imprisonment provided by subsection (a), unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure. If the sentencing judge departs from such mandatory minimum term of imprisonment, the judge shall state on the record at the time of sentencing the substantial and compelling reasons for the departure. The departure sentence shall be the sentence pursuant to the sentencing guidelines act, K.S.A. 21-4701 et seq., and amendments thereto, and no sentence of a mandatory minimum term of imprisonment shall be imposed hereunder. [A]s used in this subsection, mitigating circumstances shall include, but are not limited to, the following:
“(1) The defendant has no significant history of prior criminal activity.
“(2) The crime was committed while the defendant was under the influence of extreme mental or emotional disturbances.
“(3) The victim was an accomplice in the crime, committed by another person, and the defendant’s participation was relatively minor.
“(4) The defendant acted under extreme distress or under the substantial domination of another person.
“(5) The capacity of the defendant to appreciate the criminality of the defendant’s conduct or to conform the defendant”s conduct to the requirements of law was substantially impaired.
“(6) The age of the defendant at the time of the crime.”
In considering this section, the district court must apply a two-step procedure: First, the judge is to review mitigating circumstances, and then the judge must determine whether there are substantial and compelling reasons for departure. Ortega-Cadelan, 287 Kan. at 164. In determining whether mitigating circumstances under K.S.A. 21-4643 are substantial and compelling, this court applies an abuse of discretion standard. Ortega-Cadelan, 287 Kan. 157, Syl. ¶ 5.
The district judge stated at the sentencing hearing:
“There is an ability perhaps to go ahead and impose a reduced sentence. I don’t believe there is an ability to go beyond what the legislature has put forth and place the defendant on probation, however, for purposes of appeal, I will make the finding at this point in time that the Court cannot place the defendant on a dispositional departure. The Court will therefore not consider that departure.
“I will grant a durational departure because of the mental capacity of the defendant. I will accept and adopt the substantial and compelling reasons set forth by the parties.”
Gracey contends that the statute allows for departure, and departure includes both duration and disposition. He cites K.S.A. 21-4703(f), which defines departure as a sentence “inconsistent with the presumptive sentence for an offender.” The State responds that the plain language of K.S.A. 21-4643(d) requires that the departure sentence “shall be the sentence pursuant to the sentencing guidelines act, K.S.A. 21-4701 et seq.” The State then argues that, although the statute does not expressly prohibit imposition of probation after departing to the guidelines sentence, the legislative intent clearly was to require imprisonment.
K.S.A. 21-4643(d) provides that in the presence of substantial and compelling reasons, the district court may impose a sentence pursuant to the sentencing guidelines. Once the sentence becomes a guidelines sentence, the district court is free to depart from the sentencing grid if it states on the record findings of fact and reasons justifying a departure that are supported by evidence in the record and are substantial and compelling. K.S.A. 21-4721(d). In the plea agreement, the State agreed that Gracey’s “lower extreme” IQ went to his capacity “to appreciate the criminality” of his conduct or to conform his conduct to the requirements of the law. See K.S.A. 2006 Supp. 21-4643(d)(5). The district court incorporated this agreement into its reason for imposing a guideline sentence, and the State does not dispute that reason on appeal.
The State argues that the intent of the legislature was that every person sentenced under K.S.A. 21-4643 should, serve lengthy prison time, without authorizing probation. The State concedes, however, that such language is not contained in the statute. As noted in the discussion of the standard of review, this court generally will not look beyond the plain language of the statute and, in the event of ambiguous statutory language, will strictly construe the statute in favor of the accused. The plain language of the statute allows the district court to exercise discretion in departing from the sentencing minimum pursuant to K.S.A. 21-4719.
In 2008, the legislature amended K.S.A. 21-4719(a) to include the following language:
“The sentencing judge shall not impose a downward dispositional departure sentence for any crime of extreme sexual violence, as defined in K.S.A. 21-4716, and amendments thereto. The sentencing judge shall not impose a downward durational departure sentence for any crime of extreme sexual violence, as defined in K.S.A. 21-4716, and amendments thereto, to less than 50% of the center of the range of the sentence for such crime.” K.S.A. 2008 Supp. 21-4719(a), (L. 2008, ch. 183, sec. 7).
This amendment became effective on July 1,2008, and does not apply to Gracey, who committed the crime in 2006 and was sentenced in 2007. The decision of the legislature to amend the statute to prohibit downward dispositional departures lends further credence to the interpretation that the statute in effect at the time the offense was committed allowed dispositional departures. When the legislature revises an existing law, the court presumes that the legislature intended to change the law as it existed prior to the amendment. State v. McElroy, 281 Kan. 256, 263, 130 P.3d 100 (2006).
Once sentencing has shifted to the sentencing guidelines, nothing precludes the district court from granting a departure, either dispositional or durational. The decision whether to depart lies within the discretion of the sentencing court. See Ortega-Cadelan, 287 Kan. at 165. Here, because the district court ruled as a matter of law that it could not consider a downward dispositional departure, this case must be reversed and remanded for resentencing allowing for the sentencing court’s consideration of a dispositional as well as a durational departure.
Finally, the State contends that the district court imposed a sentence lower than the guidelines sentence and that the imposition of such a sentence was illegal. The State argues that the district court failed to find factors justifying a downward durational departure on the sentencing guidelines grid: departing below the grid sentence for a criminal history of H required the district court to give substantial and compelling reasons for granting such a departure.
Whether a sentence is illegal within the meaning of K.S.A. 22-3504 is a question of law over which an appellate court’s review is unlimited. State v. Flores, 283 Kan. 380, 382, 153 P.3d 506 (2007).
K.S.A. 22-3504(1) states: “The court may correct an illegal sentence at any time.” An illegal sentence, as contemplated by K.S.A. 22-3504(1), is a sentence imposed by a court without jurisdiction; a sentence that does not conform to the statutory provision, either in the character or the term of the punishment authorized; or a sentence that is ambiguous with respect to the time and manner in which it is to be served. State v. Davis, 283 Kan. 767, 769, 156 P.3d 665 (2007).
The district court pronounced from the bench a sentence of 55 months’ imprisonment. The guidelines sentencing range for a severity level 3-H nondrug offense was 71-66-61 months; the range for a severity level 3-1 nondrug offense was 61-59-55 months. K.S.A. 2006 Supp. 21-4704(a). It appears the district court selected a low-end sentence for a criminal history of I, although the presentence investigation revealed a criminal history of H.
The district court stated its reason for the departure — the mental capacity of the defendant as set forth by the parties in the plea agreement. The reason articulated by the district court was consistent with the statutory grounds for downward durational departure set out in K.S.A. 2006 Supp. 21-4643(d)(5). The imposition of the 55-month sentence pronounced from the bench was not an illegal sentence.
The court has not been asked to determine whether the same findings may be used as mitigating factors to justify a departure under K.S.A. 21-4643(d) and as the statutory grounds for departure from a guidelines sentence as set out in K.S.A. 21-4716(c)(1), and we make no such determination at this time. We affirm the district court in applying K.S.A. 2006 Supp. 21-3504(c), but we reverse and remand die case for resentencing consistent with this opinion.
Affirmed in part, reversed in part, and remanded with directions.
McFarland, C.J., not participating.
Standridge, J., assigned. | [
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The opinion of the court was delivered by
Luckert, J.:
This case involves two claims for survivors’ benefits against Farmers Insurance Co., Inc., following the tragic deaths of Timothy and Michelle Polson, who were found dead at the scene of a Kansas automobile accident. On appeal we consider whether Farmers was obligated to pay survivors’ benefits under K.S.A. 40-3103(y) to Timothy, Michelle, or their estates. This determination is dependent upon whether one or both of them qualify as a “survivor” as that word is defined under K.S.A. 40-3103(x) of the Kansas Automobile Injury Reparations Act (KAIRA), K.S.A 40-3101 et seq., when considered in conjunction with K.S.A. 58-709 of the Kansas Uniform Simultaneous Death Act (KUSDA), K.S.A. 58-708 et seq.
Facts and Procedural Background
According to the uncontroverted facts, Timothy and Michelle, who were married and did not have children, were insured at the time of their deaths by an auto insurance policy issued by Farmers. The policy provided personal injury protection (PIP) benefits as required by the KAIRA, K.S.A. 40-3101 et seq., which included coverage for disability, funeral expenses, medical and rehabilitation expenses, as well as substitution and survivors’ benefits.
John Polson (Polson), father of Timothy and representative of Timothy’s heirs-at-law, and Pauline Fallis (Fallis), mother of Michelle and representative of Michelle’s heirs-at-law, made separate written demands upon Farmers for survivors’ benefits in the identical amount of $10,800. Farmers denied the demands of both Poison and Fallis, finding that the definition of “survivor” was not met in either claim.
After filing separate lawsuits against Farmers, the two cases were consolidated. Subsequently, Poison and Fallis filed a motion for summary judgment, arguing they were both entitled as a matter of law to receive survivors’ benefits arising out of the deaths of Timothy and Michelle, plus pre- and postjudgment interest. They argued that under the facts of this case, K.S.A. 58-709 of the KUSDA permits recovery in that each decedent is presumed to have survived the other by less than 120 hours. Poison and Fallis contended, therefore, that each decedent’s assets, including his or her right to survivors’ benefits, should pass to his or her heirs. As a result, Poison and Fallis also argued they were each entitled to attorney fees under K.S.A. 40-256 due to Farmers’ refusal to pay their respective survivors’ benefits claims without just cause or excuse.
Farmers submitted a cross-motion for summary judgment. Although there is some dispute as to when the cross-motion was filed and served, it is clear Poison and Fallis received and replied to the cross-motion, the district court considered the motion, and the district court ruled upon it in its journal entry of judgment.
After considering the uncontroverted facts and hearing the arguments of counsel, the district court was not convinced by Poison’s and Fallis’ contentions. The court found Timothy and Michelle were not survivors of each other under the provisions of the KAIRA. In addition, the district court determined the provisions of the KAIRA provide specific statutory guidance for the award of survivors’ benefits and, therefore, the KAIRA controls in the event of a conflict with the more general provisions of the KUSDA. Consequently, the court concluded that Poison and Fallís were not entitled to such benefits.
Poison and Fallís now appeal, arguing that the district court erred in granting summary judgment in favor of Farmers and maintaining that they Were entitled to summary judgment as a matter of law. The appeal was transferred to this court on its own motion pursuant to K.S.A. 20-3018(c).
Analysis
A de novo standard applies to our appellate review of the district court’s decision to grant of summary judgment because that decision was based upon uncontroverted facts and depended upon statutory interpretation. See Dillon Real Estate v. City of Topeka, 284 Kan. 662, 665, 163 P.3d 298 (2007) (de novo standard applies to summary judgment review where facts undisputed); Bomhoff v. Nelnet Loan Services, Inc., 279 Kan. 415, 419-20, 109 P.3d 1241 (2005) (same); Schmidtlien Electric, Inc. v. Greathouse, 278 Kan. 810, 819, 104 P.3d 378 (2005) (statutory interpretation is question of law providing for de novo appellate review).
The focus of this appeal is the interpretation of the survivors’ benefits provision of the KAIRA and the applicability of the KUSDA to the determination of whether there is a survivor eligible for those benefits. As we interpret these statutes, the fundamental rule is that we must give effect to the intent of the legislature as expressed. Thus, when the language of a statute is plain and unambiguous, we must give effect to that language rather than determine what the law should or should not be, speculate as to legislative intent, add something not readily found in the statute, resort to canons of statutory construction, or consult legislative history. In re Adoption of A.A.T., 287 Kan. 590, 627, 196 P.3d 1180 (2008).
K.S.A. 40-3103(x) and (y)
The first provisions to which we apply these rules are those allowing survivors’ benefits under the KAIRA, K.S.A. 40-3101 etseq., specifically K.S.A. 40-3103(x) and (y). The KAIRA is designed to reduce personal injury litigation arising from automobile accidents and, when litigation does occur, provide the accident victim prompt payment for certain economic losses without having to await the outcome of a suit against the tortfeasor. To that end, and subject to exceptions that do not apply under the facts presented, K.S.A. 40-3104 mandates liability insurance for automobiles operated on Kansas highways. Further, K.S.A. 40-3107 requires that each such insurance policy includes PIP benefits that provide coverage for disability, funeral expenses, medical and rehabilitation expenses, as well as substitution and survivors’ benefits. Chamberlain v. Farm Bureau Mut. Ins. Co., Inc., 36 Kan. App. 2d 163, 172, 137 P.3d 1081 (2006); see K.S.A. 40-3103(q) (defining “personal injury protection benefits”). The Farmers auto insurance policy at issue in this case provided the required PIP benefits, including survivors’ benefits.
The KAIRA’s provisions regarding survivors’ benefits are found in K.S.A. 40-3103(x) and (y). K.S.A. 40-3103(x) defines “survivor” and states that the term “means a decedent’s spouse, or child under the age of 18 years, where death of the decedent resulted from an injury.” The circumstances under which benefits are paid to a survivor and the terms of the payment are provided for in K.S.A. 40-3103(y), which states:
“ ‘Survivors’ benefits’ means total allowances to all survivors for: (1) Loss of an injured person’s monthly earnings after such person’s death, up to a maximum of not less than $900 per month; and (2) substitution benefits following the injured person’s death. Expenses of the survivors which have been avoided by reason of the injured person’s death shall be subtracted from the allowances to which survivors would otherwise be entitled, and survivors’ benefits shall not be paid for more than one year after the injured person’s death, less the number of months the injured person received disability benefits prior to such person’s death. For purposes of this subsection, monthly earnings shall include, in the case of a person who was a social security recipient or a retirement or pension benefit recipient, or both, at the time of such injured person’s death, Viz of the annual amount of the difference between the annual amount of the social security benefits or the retirement benefits, or both, that such injured person was receiving at the time of such injured person’s death'and the annual amount of the social security benefits or the retirement benefits, or both, that the survivor is receiving after the time of such injured person’s death.” (Emphasis added.)
Farmers contends the plain language which limits the.benefit to “all survivors” clearly rules out the eligibility for payment of sur vivors’ benefits under the facts of this case because neither Timothy nor Michelle survived the collision and the couple had no children. Cf. Hand v. State Farm Mut. Auto. Ins. Co., 2 Kan. App. 2d 253, 577 P.2d 1202 (1978) (noting that the no-fault statute defined “survivor” as a spouse or minor child and holding the decedent’s spouse and child to be entitled to survivors’ benefits measured by the loss of earnings occasioned by the death). Farmers further points to the fact that there was no evidence that the decedents’ deaths were anything other than simultaneous.
In response, Poison and Fallís argue the statutory definition of “survivor” does not, on its face, preclude their claims. They assert that the legislature put no specific requirement in K.S.A. 40-3103(x) or K.S.A. 40-3103(y) that a decedent’s spouse be living in order for benefits to be paid. To support their position, Poison and Fallis attempt to contrast the present case with Nationwide Mut. Ins. Co. v. Gay, 165 Ga. App. 293, 299 S.E.2d 611, aff'd Gay v. Nationwide Mut. Ins. Co., 251 Ga. 104, 303 S.E.2d 117 (1983), in which the court focused on the Georgia No-Fault Act which used specific language requiring a living spouse.
In Gay, a husband and wife were killed in an automobile collision; the husband died approximately 1 and Vz hours after the wife had died. The plaintiff, a representative of the husband’s estate, claimed that the husband’s entitlement to full no-fault survivors’ benefits vested upon his spouse’s death, which would permit his estate to recover all benefits to which the surviving spouse would be entitled. The Georgia Court of Appeals rejected this theory and found the clear intent of Georgia’s No-Fault Act was that “survivor’s benefits is limited to spouses and children.” 165 Ga. App. at 295. The language at issue provided:
“ ‘In the event of the death of the injured person who is survived by a spouse or dependent child or children, compensation under subparagraphs (a)(2)(B) and (a)(2)(C) of this Code section shall be payable after the death as though the deceased were alive but totally disabled, the payment to be made to the spouse, if alive, and otherwise to the child or children or the person having legal custody of any child or children for the use of the spouse or children as though awarded as a year’s support for the spouse or children, or both. Survivor’s benefits shall be payable at least monthly until exhausted.’ ” (Emphasis added.) 165 Ga. App. at 294-95 (quoting Ga. Code Ann. § 56-3403b[b]).
In determining legislative intent, the Georgia Court of Appeals observed that the No-Fault Act, in addition to providing a certain and severely restricted class of beneficiaries for survivor’s benefits, did not provide that a surviving spouse’s rights survived his or her own death. Nor did the Act state that the surviving spouse had a vested right to the limits of coverage under the policy immediately upon the death of the insured. Instead, the Act stated that the spouse was to receive periodic payments only if he or she was alive, and it contained no provision for a lump sum payment.
The Georgia appellate court determined that one purpose of such benefits was “to provide certain minimal financial protection for those ‘most likely to suffer financially from the death [of the insured].’ [Citation omitted.]” 165 Ga. App. at 296. It was held that the estate of the husband was not entitled to recover PIP survivors’ benefits under the wife’s automobile insurance policy.
Poison and Fallis focus on the fact that, in contrast to the Georgia statutory language, Kansas’ survivors’ benefits provisions do not contain similar language regarding benefits being paid to “the spouse, if alive.” In making this argument, Poison and Fallis lose sight of the common meaning of the term “survivor,” which means “[o]ne who outlives another.” Blacks Law Dictionary 1486 (8th ed. 2004); see also Webster’s II New College Dictionary 1110 (1999) (defining “survive” as “to remain alive or in existence”). In light of the common meaning of “survivor,” the limited class of beneficiaries who have the right to survivors’ benefits under K.S.A. 40-3103(y) — i.e., spouses and minor children — must have remained alive after the death of the insured in order to have a right to survivors’ benefits.
The words “if alive” found in the Georgia statute do not add a requirement over and above what is required by the word “survivor.” The words “if alive” might add clarity if a court was facing the issues presented in Gay where the evidence established that one spouse survived the other but died before benefits could be paid, giving rise to issues of whether the benefit vests immediately and whether the surviving spouse’s rights survive his or her own death. See 165 Ga. App. at 295. But those issues do not arise if, as in this case, there is no evidence that one spouse survived the other.
Other provisions of the KAIRA echo the legislative intent that a decedent’s spouse must have outlived the decedent in order to be paid or entitled to receive survivors’ benefits. For example, in K.S.A. 40-3103(y), the legislature defines “survivors’ benefits,” in part, as “total allowances to all survivors for: (1) Loss of an injured person’s monthly earnings after such person’s death, up to a maximum of not less than $900 per month.” The benefits for the loss of the decedent’s earnings are paid for no more than 1 year, and the monthly amount is offset by the expenses of the survivors which have been avoided by reason of the injured person’s death. These provisions, like those in Georgia, reflect the clear legislative purposes of no-fault survivors’ benefits: to provide certain financial protection for those most likely to suffer financially from the loss of income caused by the death of the insured — a spouse and children. Payment of benefits to a spouse who died simultaneously and did not suffer the spouse’s loss of income does not further this purpose and would be contrary to the clear and unambiguous language that limits benefits to “those who remain alive after the death” of another, i.e., those who are a “survivor.” See Gay, 165 Ga. App. at 296.
Neither Poison nor Fallis advance any evidence that either Timothy or Michelle outlived the other. Therefore, there is no evidence to support a finding that either Timothy or Michelle was a survivor of his or her spouse.
KUSDA
In fact, Poison and Fallis rely on the lack of evidence to invoke the provision of the KUSDA which provides that “an individual who is not established by clear and convincing evidence to have survived the other individual by 120 hours is deemed to have predeceased the other individual.” K.S.A. 58-709. Poison and Fallis argue that because Timothy and Michelle would be deemed to have predeceased one another under the language of K.S.A. 58-709, it could also be said that each decedent would be deemed to have survived the other. To that end, Poison and Fallis argue, each decedent’s assets should include survivors’ benefits and those assets should pass to his or her heirs. They argue that because the leg islature saw fit to provide guidance for property division in the event spouses die within 120 hours of each other pursuant to K. S .A. 58-709, one could draw the logical conclusion that the legislature also intended each spouse under the present circumstance — having suffered simultaneous deaths in an automobile accident — to be considered “survivors” of each other for purposes of receiving survivors’ benefits under K.S.A. 40-3103.
To some extent, the KUSDA was enacted to deal with the problem Poison and Fallís face, i.e., the difficulty of proving whether a person survived. This difficulty existed at common law because there was no recognized presumption of either survivorship or simultaneous death. See Estate of Nancy Schweizer v. Estate of Roland Schweizer, 7 Kan. App. 2d 128, 128, 638 P.2d 378 (1981). In order to address the difficulty, at least in some specified circumstances, the National Conference of Commissioners on Uniform State Laws drafted a Uniform Simultaneous Death Act (USDA), which Kansas adopted, K.S.A. 58-708 et seq.
The practical effect of the KUSDA is that it may operate to show survivorship, as is illustrated by the decision in Schweizer. In Schweizer, Roland and Nancy Schweizer were killed in an accident in which it was impossible to determine the order of death. The administratrix of Nancy’s estate filed a claim in Roland’s estate for a spouse’s share. Affirming the district court’s conclusion that neither Nancy nor her distributees had an interest in Roland’s estate, the Court of Appeals gave the following explanation of the application of the KUSDA:
“In this case, the estate of Mrs. Schweizer, because she is presumed to have died before Mr. Schweizer, is not entitled to a share. Likewise, Mr. Schweizer’s estate is not entitled to any share of Mrs. Schweizer’s estate, because in her probate case she is presumed to have survived him.” 7 Kan. App. 2d at 129.
Nevertheless, as Farmers notes, even though numerous states have adopted the USDA, there appears to be no case law or other authority to support the application of the USDA to survivors’ benefits as requested by Poison and Fallís.
Without guiding authority, the district court rejected Poison’s and Fallis’ attempt to invoke the KUSDA, determining the KAIRA was a specific statute that controlled over the more general KUSDA. See Chelsea Plaza Homes, Inc. v. Moore, 226 Kan. 430, 601 P.2d 1100 (1979) (general statutes do not apply to an area of substantive law that is the subject of other specific legislation).
On our review, we affirm tire district court’s decision that the KUSDA does not apply under'the facts of this case. While we do not necessarily disagree with the district court’s reasoning, there are more basic reasons for determining the KUSDA does not allow both parties to claim survivors’ benefits: (1) the KUSDA specifies four circumstances to which the provisions apply, and none of those circumstances applies in this case, and (2) the results would be contrary to the language of the statute and its purpose.
Regarding the first reason, the circumstances to which the KUSDA apply are defined in K.S.A. 58-709, which.provides in part:
“Except as provided in K.S.A. 58-713, if the title to property, the devolution of property, the right to elect an interest in property, or the right to exempt property, homestead or family allowance depends upon an individual’s survivorship of the death of another individual, an individual who is not established by clear and convincing evidence to have survived the other individual by 120 hours is deemed to have predeceased the other individual. This section does not apply if its application would result in a taking of intestate estate by the state.”
These categories, although general, are not all encompassing. As other courts have recognized, the USD A “does not apply to all types of property interests, and its language is quite specific as to those interests affected by the 120-hour survival rule.” Heirs of Ellis v. Estate of Ellis, 71 S.W.3d 705, 711 (Tenn. 2002) (Tennessee Act did not apply to tenancy by the entirety, which under state law cannot be passed by will; Tennessee Act nonuniform, applying only to homestead and other allowances,.elective share, intestate succession, and wills).
If we enumerate the four circumstances for purposes of analysis, the presumption provided for by the KUSDA applies only when one individual’s survivorship of another individual determines: (1) title to property, (2) the devolution of property, (3) the right to elect an interest in property, or (4) the right to exempt property, homestead, or family allowance. None of these categories applies to Timothy or Michelle’s inchoate interest in survivors’ benefits. Neither Timothy nor Michelle had the right to transfer an interest in the benefits, had the right to elect an interest in the benefit, or had the right to exempt the benefit. See Schweizer, 7 Kan. App. 2d at 129 (citing In re Estate of Moran, 77 Ill. 2d 147, 395 N.E.2d 579 [1979]; Brundige v. Alexander, 547 S.W.2d 232, 234 [Tenn. 1976]) (purpose of USDA is to provide substantive law to govern the devolution of property when there is no evidence that the deaths occurred other than simultaneously); see also, e.g., In re Estate of Parisi, 328 Ill. App. 3d 75, 80, 765 N.E.2d 123 (2002) (stating “[e]ach individual’s property passes to that individual’s relatives and not to the other person’s relatives .... Thus, neither decedent inherits from the other.”).
Moreover, to apply the provisions in this circumstance would be contrary to the clear language and recognized intent of the USDA, which “is designed to further the decedent’s presumed intention of passing property only to persons who can personally benefit from it.” Restatement. (Third) of Property, Wills and Other Donative Transfers § 1.2, comment d (1999). This intent parallels that of the survivors’ benefits provision of the KAIRA, which is aimed at benefitting those who suffer the loss of the decedent’s income.
Poison and Fallis attempt to reverse this effect and create a presumption of survivorship that is contrary to the presumption created by the statute. Again, the statute provides that “an individual who is not established by clear and convincing evidence to have survived the other individual by 120 hours is deemed to have predeceased the other individual.” K.S.A. 58-709. Applied to the facts of this case, because it cannot be established that Michelle survived Timothy by more than 120 hours, she is deemed to have predeceased Timothy. Likewise, because it cannot be established that Timothy survived Michelle by more than 120 hours, he is deemed to have predeceased Michelle. As a result, under the presumption created by the statute, neither would receive survivors’ benefits. In contrast, to apply a presumption of survivorship, as Poison and Fallis attempt to do, would allow the insurance benefit to be considered the property of Michelle and Timothy even though Michelle and Timothy would not personally enjoy the use of the property.
We conclude, therefore, that the KUSDA does not apply to a determination of whether an individual is a survivor entitled to survivors’ benefits under K.S.A. 40-3103(y).
Eoctension to Estates
Poison and Fallis also argue that as parents of the decedents and representatives of the heirs of the decedents, they should be entitled to receive survivors’ benefits, even though they themselves admittedly do not fall within the statutory definition of “survivor.” To support this contention, Poison and Fallis cite cases from Pennsylvania in which courts have held the decedents’ estates were entitled to recover benefits under Pennsylvania’s No-Fault Act.
In Wingeart v. State Farm Mut. Auto. Ins. Co., 302 Pa. Super. 524, 449 A.2d 40 (1982), the court held the deceased passenger’s estate was a “survivor” entitled to recover “work loss benefits” under the Pennsylvania No-Fault Act. The court relied on Freeze v. Donegal Mut. Ins. Co., 301 Pa. Super. 344, 350, 447 A.2d 999 (1982), where it was questioned whether an estate could recover “work loss benefits,” as opposed to “survivors loss benefits.” The Freeze court, in a split decision, refused to strictly construe its No-Fault Act and thereby limit the recovery of work loss benefits to the statutorily defined class of “survivors” that applied to survivors’ benefits. Such an interpretation of the No-Fault Act would, according to Pennsylvania courts, abolish “ ‘the right of the deceased victim’s estate to recover from a tortfeasor the earnings the deceased victim would have contributed to his estate had he survived.’ ” Freeze, 301 Pa. Super, at 351 (quoting Heffner v. Allstate Ins. Co., 265 Pa. Super. 181, 191, 401 A.2d 1160 [1979]). Consequently, the Freeze court held the estate of the deceased victim was entitled to recover work loss benefits under the No-Fault Act. See also Reynolds v. Nationwide Mut. Ins. Co., 303 Pa. Super. 31, 32, 449 A.2d 62 (1982) (estate of decedent was entitled to recover work loss benefits under state No-Fault Act, and fact that decedent was a minor who never worked did not preclude recovery); cf. School Sisters of Notre Dame v. State Farm, 476 N.W.2d 523, 525 (Minn. App. 1991) (a nonhuman, such as a nonprofit corporation, could not be considered a “dependent” for purposes of survivors’ economic loss benefits under Minnesota’s No-Fault Act).
However, in none of the cases cited by Polson and Fallis was the estate of the decedent held to be entitled to survivors’ benefits. Rather, estates were held to be entitled to “work loss benefits” under Pennsylvania law. In Capanna v. Travelers Ins. Co., 355 Pa. Super. 219, 224, 513 A.2d 397 (1986), the court explained that under Pennsylvania law, work loss benefits and survivors’ benefits are separate and distinct in nature: “A work loss benefit is not a form of survivor’s benefit, but is in the nature of reimbursement to the estate of the deceased for income he or she would probably have earned but for the accident.” Emphasizing that each is a separate type of benefit, the court further stated that “the work loss benefit intended to reimburse the estate of the victim for lost earnings, and survivor’s benefits to reimburse survivingfamily members for what they would have received had the victim lived.” (Emphasis added.) 355 Pa. Super. at 224.
Under the Pennsylvania cases, to recover survivors’ benefits one must meet the definition of survivor by falling within the limited class designated — spouse or dependent relative — and have incurred a loss because the decedent would have contributed income to the survivor if the decedent had not sustained the fatal injury. Allstate Ins. Co. v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980).
As in Pennsylvania, under the KAIRA an individual must establish that he or she is a spouse or minor child who survived the death of an insured and suffered a loss of income because of the decedent’s fatal injury in order to qualify for survivors’ benefits. Neither Poison nor Fallis can establish that Timothy or Michelle qualified for survivors’ benefits under K.S.A. 40-3103(y) and, therefore, as their representatives they cannot claim the benefits.
As a final argument, Poison and Fallis attempt to save their claim for survivors’ benefits by raising hypothetical situations that are irrelevant to this case. Their attempt does not change the clear statutory language defining “survivor” and “survivors’ benefits,” which does not incorporate the deceased spouse of the decedent or the parent/representative of the decedent.
The district court did not err in granting summary judgment in favor of Farmers on this issue.
Attorney Fees
In the district court, Poison and Fallis sought attorney fees pursuant to K.S.A. 40-256. This statute provides:
“That in all actions hereafter commenced, in which judgment is rendered against any insurance company as defined in K.S.A. 40-201 . . . if it appear[s] from the evidence that such company . . . has refused without just cause or excuse to pay the full amount of such loss, 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.” (Emphasis added.)
Obviously, judgment was rendered in favor of Farmers, not against Farmers. Therefore, attorney fees were not allowed under K.S.A. 40-256. Poison and Fallis reargue their contention that judgment should have been granted in their favor and that Farmers should not have denied their claims for survivors’ benefits without considering provisions of the KUSDA. As previously discussed, however, the KUSDA has no application to this case. Poison and Fallis fail to provide any statutory authority justifying attorney fees. See Johnson v. Westhoff Sand Co., Inc., 281 Kan. 930, 939, 135 P.3d 1127 (2006) (attorney fees cannot be awarded absent statutory authority or agreement).
The district court did not err in failing to award attorney fees to Poison and Fallis. Summary judgment was properly granted in favor of Farmers.
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The opinion of the court was delivered by
Davis, J.:
Joshua Kingsley appeals from the dismissal of his petition for judicial review of the Kansas Department of Revenue’s (KDR) suspension of his driver’s license. The district court dismissed Kingsley’s petition for lack of subject matter jurisdiction, finding that the petition did not strictly comply with the pleading requirements of K.S.A. 77-614(b)(5) and (b)(6) of the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA). The Court of Appeals affirmed in an unpublished opinion. Kingsley v. Kansas Dept. of Revenue, No. 98,301, unpublished opinion filed October 5, 2007.
We granted Kingsley’s petition for review to clarify the pleading requirements for petitions for judicial review under the KJRA after our recent decision in Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 148 P.3d 538 (2006), where we held that strict compliance with those pleading requirements was necessary in order to confer appellate jurisdiction. We now reverse the decision of the Court of Appeals affirming the district court, reverse the decision of the district court dismissing the case, and remand for further proceedings. This is a companion case with Rebel v. Kansas Dept. of Revenue, 288 Kan. 419, 204 P.3d 551 (2009), which involves similar issues.
Facts
On June 2, 2005, Kingsley was operating a vehicle in Hays, Kansas, and was stopped by Officer J. Bonc2ynski of the Hays Police Department for failing to keep his vehicle in a single lane, weaving within his lane, and erratic acceleration and braking. When the officer approached Kingsley, he detected the odor of alcohol and noted that Kingsleys eyes were bloodshot. Kingsley failed the field sobriety test, exhibiting poor balance. Kingsley also indicated to the officer that he had previously consumed alcohol or drugs.
Kingsley consented to an evidentiary breath test. Officer Bonczynski certified that he administered the test after providing Kingsley with oral and written notice and in the presence of another officer. Officer Bonczynski also certified that the testing equipment and procedures were approved by the Kansas Department of Health and Environment and that he was authorized to operate the testing equipment. The evidentiary breath test demonstrated that Kingsley had a blood alcohol level of .142.
Based on these observations, Officer Bonczynski certified that he had reasonable grounds to believe that Kingsley had been operating a vehicle under the influence of drugs or alcohol in violation of K.S.A. 8-1001 et seq. and issued a notice of suspension of Kingsley s driver s license.
On June 10, 2005, Kingsley requested an administrative hearing with die KDR to review this suspension order. A hearing was conducted on March 8, 2006, after which the KDR issued an administrative order affirming the suspension of Kingsley s driver s license. Shortly thereafter, Kingsley filed a petition for judicial review under K.S.A. 8-259 in Ellis County District Court. Kingsley s petition for judicial review contained the following two critical paragraphs:
“6. That plaintiff seeks review of all issues raised by plaintiff in the hearing before the administrative hearing officer, in Hays, Kansas.
"7. The order suspending plaintiff s driving privileges should be vacated by this Court because plaintiff was subjected to an illegal and improper preliminary breath test was subjected that [sic] plaintiffs due process rights were violated because he was not allowed to subpoena relevant witnesses to his administrative hearing; the officer conducted an illegal search of plaintiff s vehicle; that plaintiff also seeks review of all issues raised before the administrative hearing officer at the March 8, 2006, hearing.”
The district court dismissed because the petition failed to comply with K.S.A. 77-614(b)(5) and (b)(6) of the KJRA.
The Court of Appeals affirmed the district court’s dismissal of the action in an unpublished opinion. Kingsley, slip op. at 4-5. The Court of Appeals concluded that paragraphs 6 and 7 of Kingsley’s petition for judicial review were “no more specific than the petition for review in Bruch,” where this court held that the petition did not strictly comply with the KJRA’s pleading requirements. Slip op. at 4. The court emphasized that tire petition provided “no indication the proper administration of the PBT was raised below” and that “there is no specific reason pled to indicate why the PBT was ‘illegal and improper.’Slip op. at 4-5.
Kingsley petitioned this court for review, arguing that the district court and the Court of Appeals erred by misapplying Bruch and that the district court had subject matter jurisdiction under K.S.A. 77-614(b)(5) and (b)(6) to hear the appeal. In its response to Kingsley’s petition for review, the KDR argued no jurisdiction existed because (1) Kingsley failed to exhaust his administrative remedies by not raising evidence to support his allegations at the administrative hearing and (2) the petition for judicial review failed to strictly comply with pleading requirements of K.S.A. 77-614(b)(5) and (b)(6). We granted review.
Discussion
Two questions are presented for resolution in this case: (1) whether Kingsley’s petition for judicial review strictly complied with the KJRA’s pleading requirements, specifically K.S.A. 77-614(b)(5) and (b)(6), and (2) whether Kingsley exhausted his administrative remedies. Each of these questions implicates the court’s subject matter jurisdiction to consider a petition for judicial review. See Bruch, 282 Kan. at 773-74, 786-87 (strict compliance with the pleading requirements of K.S.A. 77-614[b] is necessary before a court may exercise jurisdiction over a petition for judicial review); Jones v. State, 279 Kan. 364, 368, 109 P.3d 1166 (2005) (exhaustion of administrative remedies is a precondition to judicial review under the KJRA). Resolution of these issues thus requires us to examine once again the specific provisions of the KJRA and the application of our cases dealing with jurisdictional questions under that Act.
It does not appear from the record that the KDR raised the second issue for our consideration — the exhaustion question — at any time before it filed its response to Kingsley s petition for review to this court. Ordinarily, claims not presented in an appellate brief are deemed abandoned and will not be considered by this court on petition for review. See State v. Greever, 286 Kan. 124, 131, 183 P.3d 788 (2008); Cooke v. Gillespie, 285 Kan. 748, Syl. ¶ 2, 176 P.3d 144 (2008). Nevertheless, issues relating to the court’s subject matter jurisdiction to hear a particular claim may be raised at any time, as such claims go to the power of the court to hear a case. See Vorhees v. Baltazar, 283 Kan. 389, 397, 153 P.3d 1227 (2007).
Subject matter jurisdiction is vested by statute and establishes the court’s authority to hear and decide a particular type of action. Pieren-Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 92, 106 P.3d 492 (2005). Parties cannot confer subject matter jurisdiction by consent, waiver, or estoppel, and parties cannot convey subject matter jurisdiction on a court by failing to object to the court’s lack of jurisdiction. Kansas Bd. of Regents v. Skinner, 267 Kan. 808, Syl. ¶ 5, 987 P.2d 1096 (1999). If the district court lacks jurisdiction to make a ruling, an appellate court does not acquire jurisdiction over the subject matter on appeal. State v. McCoin, 278 Kan. 465, 468, 101 P.3d 1204 (2004).
The question as to whether subject matter jurisdiction exists is a question of law over which this court’s scope of review is unlimited. Back-Wenzel v. Williams, 279 Kan. 346, 347, 109 P.3d 1194 (2005). Because subject matter jurisdiction is ordinarily conferred by statute, it should be noted that the interpretation of a statute is also a question of law subject to unlimited review. Griffin v. Suzuki Motor Corp., 280 Kan. 447, 451, 124 P.3d 57 (2005).
Preliminary note on Martin v. Kansas Dept, of Revenue
During argument before this court, Kingsley’s counsel acknowledged that the issues raised by Kingsley in his petition for judicial review might be rendered moot by our recent decision in Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 176 P.3d 938 (2008). In Martin, we held that the exclusionary rule does not apply in appeals from administrative license suspensions even though petitioners may raise Fourth Amendment questions during administrative appeals and the Fourth Amendment applies in such contexts. 285 Kan. at 639, 646. Thus, under Martin, a petitioner may raise Fourth Amendment claims, but such claims have no practical effect (meaning such claims do not trigger the exclusion of resultant evidence) in the administrative context. See 285 Kan. at 646.
It is true that Kingsley asserts in his petition for judicial review that he “was subjected to an illegal and improper preliminary breath test” and that “the officer conducted an illegal search of [his] vehicle.” Thus, it may be that if the district court had evaluated the case on its merits, the court might have determined that Kingsley could not have succeeded on these particular issues under Martin. The district court did not make such a determination in this case, however, but dismissed the case on the face of the petition for failure to strictly comply with the KJRA’s pleading requirements.
Martin did not involve the interpretation of the KJRA’s pleading requirements. It had to do with the merits of the issues raised, not the court’s jurisdiction to hear those issues. We find that Martin has no bearing on the question currently before us — whether the district court had subject matter jurisdiction to consider Kingsley’s petition for judicial review. With this prehminary consideration resolved, we turn to the specific issues over which we granted review.
(1) Did Kingsley’s petition for judicial review strictly COMPLY WITH THE PLEADING REQUIREMENTS OF K.S.A. 77-614(b)?
K.S.A. 2007 Supp. 8-1020 and K.S.A. 2007 Supp. 8-259 govern a district court’s review of an administrative decision to suspend a licensee’s driving privileges based on the licensee’s failure or refusal of a breath test. See Pieren-Abbott, 279 Kan. at 89. These statutes state that driver’s license suspensions are subject to review in the form of a de novo trial before the district court and that “[s]uch review shall be in accordance with” the KJRA. K.S.A. 2007 Supp. 8-259(a); K.S.A. 2007 Supp. 8-1020(p); see Bruch, 282 Kan. at 783.
The KJRA’s pleading requirements are contained in K.S.A. 77-614(b), which states that all petitions for judicial review under the KJRA “shall set forth”:
“(1) The name and mailing address of the petitioner;
“(2) the name and mailing address of the agency whose action is at issue;
“(3) identification of the agency action at issue, together with a duplicate copy, summary or brief description of the agency action;
“(4) identification of persons who were parties in any adjudicative proceedings that led to the agency action;
“(5) facts to demonstrate that the petitioner is entitled to obtain judicial review;
“(6) the petitioner’s reasons for believing that relief should be granted; and
“(7) a request for relief, specifying the type and extent of relief requested.”
This court considered the interplay of K.S.A. 77-614(b) and K.S.A. 8-259 in Bruch, where we concluded that a “petition for review under K.S.A. 8-259 must strictly comply with the pleading requirements of K.S.A. 77-614(b), even though it is subject to de novo review.” (Emphasis added.) 282 Kan. at 787. We further explained that because a “petition for judicial review of an agency action is jurisdictional[,] . . . the failure to comply with the pleading requirements set forth in K.S.A. 77-614(b) precludes a litigant’s statutorily granted right of appeal.” 282 Kan. 764, Syl. ¶ 2.
The present case calls upon us to consider in greater detail what information parties must include in petitions for judicial review under the KJRA in order to strictly comply with the pleading requirements of K.S.A. 77-614(b). This question is resolved in large measure under the guidance of our recent decision in Bruch and the plain language of the KJRA. We note that neither party suggests that our decision in Bruch should be overruled or is an inappropriate reading of the statute. Instead, each party advocates an interpretation of Bruch that favors that party’s respective position before this court.
Our conclusion in Bruch that strict compliance with the KJRA’s pleading requirements is necessary to confer subject matter jurisdiction over the petition for judicial review had three legal bases: our Kansas case law interpreting the KJRA as requiring strict compliance, the legislative history of the KJRA as well as the Model Act on which the KJRA was based, and decisions of other jurisdic tions with similar statutory schemes. See Bruch, 282 Kan. at 777-84. We need not revisit the latter two bases, as our discussion in Bruch sufficiently outlines our rationale in relying on them. See 282 Kan. at 777-81. We pause briefly, however, to trace our case law leading to the Bruch decision to underscore the purpose of the KJRA in general and the specific pleading requirements of K.S.A. 77-614(b) in particular.
A little over a year before we decided Bruch, this court held in Pieren-Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 95, 106 P.3d 492 (2005), that a failure to strictly comply with the KJRA’s notice requirements resulted in a lack of personal jurisdiction to consider a petition for judicial review. Pieren-Abbott relied in large part on the two Court of Appeals opinions: Claus v. Kansas Dept. of Revenue, 16 Kan. App. 2d 12, 825 P.2d 172 (1991), and Pittsburg State University v. Kansas Bd. of Regents, 30 Kan. App. 2d 37, 44-46, 36 P.3d 853 (2001), rev. denied 273 Kan. 1036 (2002).
Claus involved an appeal from a driver’s license suspension where the licensee failed to serve the Secretary of Revenue with a copy of the petition for judicial review (as required by the KJRA). The Court of Appeals held that even though the agency had received actual notice of the petition, there was no provision for “substantial compliance” in the KJRA. Because the licensee failed to strictly comply with the KJRA’s notice requirements, Claus concluded that the district court did not have personal jurisdiction over the KDR. 16 Kan. App. 2d at 13-14; see also Reifschneider v. Kansas State Lottery, 266 Kan. 338, 342, 969 P.2d 875 (1998) (“The Court of Appeals’ decision in Claus regarding strict construction is sound.”).
Pittsburg State, which we discussed at some length in both Pieren-Abbott and Bruch, held that a “petition for judicial review of an agency action is jurisdictional,” and the “[fjailure to comply with the pleading requirements set forth in K.S.A. 77-614(b) precludes a litigant’s statutorily granted right of appeal.” 30 Kan. App. 2d 37, Syl. ¶ 3. Citing an article by Professor David Ryan — a member of the committee that advised the Kansas Legislature during its adoption of the KJRA — the Pittsburg State court concluded that “specificity in pleading under the KJRA is necessary to give focus to the asserted agency error and to give the reviewing court a proper understanding of the type of relief sought.” 30 Kan. App. 2d at 45.
In Bruch, we again reiterated that strict compliance with the KJRA’s pleading requirements is necessary to confer subject matter jurisdiction over a petition for judicial review. We rejected the petitioner’s argument that the provisions of K.S.A. 8-259 calling for a de novo review on appeal from an administrative decision suspending a driver’s license relieved the licensee of the strict compliance requirements of the KJRA, concluding that we may not ignore the plain language of the informed consent law, which states that “ ‘review shall be in accordance with the [KJRA].’ ” Bruch, 282 Kan. at 783; see K.S.A. 2007 Supp. 8-259; K.S.A. 2007 Supp. 8-1020(p).
Bruch found that the legislature’s primary purposes for enacting the KJRA were “to assist people in filing their appeals from administrative actions” and “to ‘facilitate the judicial task’ . . . [by giving notice to] opposing parties and the reviewing court by identifying issues to be addressed on appeal and the facts as to why the petition should be reviewed.” Bruch, 282 Kan. at 779. This court noted that “[application of a strict compliance standard is in keeping with the overall intent of the Kansas Legislature in enacting the KJRA and results in apprising both the court and the agency of the positions raised.” 282 Kan. 764, Syl. ¶ 4. We therefore concluded that “[c]ompliance with the specific language of K.S.A. 77-614(b) meets the strict compliance requirement.” 282 Kan. at 781.
One final observation is appropriate before addressing the jurisdictional questions raised in this appeal. In Bruch, the court held that the petition for judicial review did not strictly comply with the same statutory provisions at issue in this case — K.S.A. 77-614(b)(5) and (6) — and thus dismissed the case for lack of subject matter jurisdiction. 282 Kan. at 786-87. The Bruch court did not distinguish between these two provisions for purposes of that analysis, however, but rather treated them as similar requirements. See 282 Kan. at 785 (stating that K.S.A. 77-614[b][5] and K.S.A. 77-614[b][6] are “related” requirements). The decision proceeded with its analysis without specifically tying the discussion to a particular subsection:
“Bruch failed to strictly comply with subsections (b)(5) and (b)(6) of K.S.A. 77-614, because he failed to state in the petition for review that he was raising the issues of administration of and consent to the PBT, as indicated by the transcript before the district court. Nothing in his petition for review identifies these issues relating to the PBT, which are the heart of Bruch’s appeal. . . . Bruch’s argument that these issues fell under the broad umbrella of the probable cause’ to arrest issue is without merit. ‘Probable cause to arrest,’ even if taken as the reviewable issue of whether there were ‘reasonable grounds’ to believe the licensee was DUI, is far too expansive of an issue, as it could include any number of arguments. [Citation omitted.] Bruch’s broad statement concerning probable cause does not provide the department or the district court with any focus on the agency error to be addressed at trial.
“We also find it significant that the implied consent statutory scheme includes a separate statute involving PBT’s, and Bruch failed to identify the provisions of that statute as well as any issues relating to PBT’s, except by his broad statement relating to reasonable suspicion and probable cause in his petition for review. As such, Bruch did not strictly comply with the pleading requirements of K.S.A. 77-614(b)(5) or (6).” 282 Kan. at 786.
Although Bruch concluded that the petition for judicial review filed in that case did not strictly comply with either K.S.A. 77-614(b)(5) or (b)(6), the discussion in that case focused on whether the issues raised in the petition were sufficiently described. In other words, while Bruch held that the petition was insufficiently particular as to both the facts demonstrating that the petitioner was entitled to judicial review under K.S.A. 77-614(b)(5) and as to the reasons for believing relief should be granted under K.S.A. 77-614(b)(6), the discussion is limited to the second of these provisions: whether Bruch’s petition sufficiently set forth the issues to be raised — or the reasons why he should prevail.
Our treatment of these two statutory provisions in Bruch has led the district courts and Court of Appeals to treat K.S.A. 77-614(b)(5) and (b)(6) as virtually one pleading requirement. This approach, however, is inconsistent with the principle of statutory construction applied by this court that presumes that the legislature does not intend to enact useless or meaningless legislation. See Hawley v. Kansas Dept. of Agriculture, 281 Kan. 603, 631, 132 P.3d 870 (2006). When it enacted K.S.A. 77-614(b), the legislature set forth seven different pleading requirements that must be met before a district court has jurisdiction over a petition for judicial review. See K.S.A. 77-614(b). It does not make logical sense for two of these seven provisions to overlap, while the other subsections set forth individual requirements. While we indicated in Bruch that these requirements may be related, we now emphasize that the requirements are not identical. Instead, K.S.A. 77-614(b)(5) and (b)(6) set forth two distinct requirements for petitions seeking an appeal under the KJRA.
KS.A. 77-614(b)(5)
K.S.A. 77-614(b)(5) states that a petition for judicial review under the KJRA “shall set forth . . . facts to demonstrate that the petitioner is entitled to obtain judicial review.” The only other provisions of the KJRA that reference petitioners’ entitlement to judicial review of agency actions are K.S.A. 77-607 (persons entitled to review of final agency actions) and K.S.A. 77-608 (persons entitled to interlocutory review of nonfinal agency actions). In particular, K.S.A. 77-607(a) provides:
“A person who qualifies under this act regarding (1) standing (K.S.A. 77-611), (2) exhaustion of administrative remedies (K.S.A. 77-612) and (3) time for filing the petition for judicial review (K.S.A. 77-613) and other applicable provisions of law regarding bond, compliance and other preconditions is entitled to judicial review of final agency action, whether or not the person has sought judicial review of any related nonfinal agency action.” (Emphasis added.)
K.S.A. 77-608, which sets forth the conditions entitling petitioners to interlocutory judicial review of nonfinal agency actions, states that in addition to the requirements of K.S.A. 77-607(a), a petitioner must demonstrate that “postponement of judicial review would result in an inadequate remedy or irreparable harm disproportionate to the public benefit derived from postponement.” K.S.A. 77-608(b).
There can be no question that the pleading requirement in K.S.A. 77-614(b)(5) is referring to these provisions. K.S.A. 77-614(b)(5) states that a petition for judicial review shall set forth facts demonstrating that the petitioner is “entitled to obtain judicial review.” The plain language of K.S.A. 77-607(a) states that aperson is “entitled to judicial review” of an agency action if that person has standing under the KJRA, has exhausted the available admin istrative remedies, and has filed the petition in a timely manner. K.S.A. 77-608 similarly sets forth the conditions necessary for a person to be “entitled” to interlocutory judicial review of a nonfinal agency action.
Because the interpretation of K.S.A. 77-614(b)(5) is clear when read in conjunction with the entire KJRA, there is no need to resort to principles of statutory construction to determine the meaning of “entitled to obtain judicial review.” See Kansas Commission on Civil Rights v. Howard, 218 Kan. 248, Syl. ¶ 2, 544 P.2d 791 (1975) (“courts are not permitted to consider only a certain isolated part or parts of an act but are required to consider and construe together all parts thereof in pari materia”); In re K.M.H., 285 Kan. 53, 79-80, 169 P.3d 1025 (2007) (when the language of a statute is plain and unambiguous, courts “need, not resort to statutory construction”). Nevertheless, as the KDR correctly points out in its response to Kingsley s petition for review, the legislative history of the KJRA supports this interpretation of the statute.
In Bruch v. Kansas Dept. of Revenue, 252 Kan. 764, 148 P.3d 538 (2006), this court explained that the KJRA was modeled after Article 5 of the Model State Administrative Procedure Act of 1981 (Model Act), noting that the language of K.S.A. 77-614(b) is “almost identical” to the language of § 5-109(b) of the Model Act. See 282 Kan. at 778. Section 5-109(b)(5) states that petition for review must set forth “facts to demonstrate drat the petitioner is entitled to obtain judicial review as described in § 5-102(a)(i), (ii), and (iii).” See Bruch, 282 Kan. at 778. The language of this requirement corresponds exactly to the language of K.S.A. 77-614(b)(5), except that the Model Act specifically refers to § 5-102(a)(i), (ii), and (iii).
Section 5-102(a) of the Model Act similarly corresponds to K.S.A. 77-607(a), stating:
“A person who qualifies under this Act regarding (i) standing (Section 5-106), (ii) exhaustion of administrative remedies (Section 5-107), and (iii) time for filing the petition for review (Section 5-108), and other applicable provisions of law regarding bond, compliance, and other pre-conditions is entitled to judicial review of final agency action, whether or not the person has sought judicial review of any related non-final agency action.”
These two sections of the Model Act support the conclusion that the pleading requirement of K.S.A. 77-614(b)(5) refers to facts demonstrating that a petitioner is “entitled to obtain judicial review” under K.S.A. 77-607(a) and K.S.A. 77-608.
We conclude that under the plain language of the KJRA, a petition for judicial review must contain specific facts indicating that the plaintiff is “entitled to judicial review” as described by K.S.A. 77-607(a) or K.S.A. 77-608. In cases such as this one — -which involves an appeal from a final agency action — the plain statutory language of die KJRA requires that a petitioner provide facts that demonstrate the petitioner has standing, has exhausted administrative remedies, and is filing a timely petition for judicial review. See also W. S. Dickey Clay Mfg. Co. v. Kansas Corp. Comm’n, 241 Kan. 744, 750, 740 P.2d 585 (1987) (setting forth these requirements as preconditions that must be met before a person may file a petition for judicial review).
Kingsley argues in his petition for review before this court that this interpretation of K.S.A. 77-614(b)(5) is incorrect, claimingthat the only fact that a plaintiff must plead when fifing a petition for judicial review of a drivers license suspension under K.S.A. 2007 Supp. 8-259 is that his or her license has actually been suspended. This argument is without merit. It is true that K.S.A. 2007 Supp. 8-259(a) states “the . . . suspension ... of a persons driving privileges ... is subject to review.” But this brief statement cannot be read in a vacuum. K.S.A. 2007 Supp. 8-259(a) continues to provide that judicial review of a driver s license suspension “shall be in accordance with” the KJRA. See Bruch, 282 Kan. at 783. The plain language of the KJRA indicates that a petitioner is entided to judicial review only if that petitioner meets the requirements of K.S.A. 77-607(a) and/or K.S.A. 77-608.
Thus, a petition for judicial review from a final agency action must specifically demonstrate that a person is “entided to judicial review” under the KJRA — that is, the petition must contain specific facts indicating that the person has standing to file the petition pursuant to K.S.A. 77-611, that the person has exhausted all available administrative remedies pursuant to K.S.A. 77-612, and that the petition has been timely filed pursuant to K.S.A. 77-613. See K.S.A. 77-614(b)(5); K.S.A. 77-607(a). As this court explained in Bruch, the failure to strictly comply with the pleading requirements of K.S.A. 77-614(b)(5) divests the district court — or subsequent appellate courts — of subject matter jurisdiction to consider the petition for judicial review. See 282 Kan. at 773-74.
The question that remains is the level of specificity required in a petitioner s pleading in order to strictly comply with K.S.A. 77-614(b)(5). Although we reiterate here, as we did in Bruch, that strict compliance with the KJRA’s pleading requirements is a jurisdictional prerequisite to a district court hearing the petition, we will not impose requirements additional to those specifically set forth in the statutory language.
K.S.A. 77-614(b)(5) provides that petitions for judicial review under the KJRA must set forth “facts to demonstrate that the petitioner is entitled to obtain judicial review.” (Emphasis added.) The statute does not require legal arguments or statutory citations, but facts. Thus, if there are sufficient facts in a petition for judicial review from which the agency and reviewing court can determine that the requirements for standing, exhaustion, and timing are met, petitioner is “entitled to obtain judicial review” in accordance with the requirements of K.S.A. 77-607(a). In light of the specific statutory requirements of K.S.A. 77-607(a), the safer practice for a petitioner seeking an appeal under the KJRA from a final agency action is to specifically and separately state in the petition facts establishing standing, exhaustion, and timing. However, a petition for judicial review will not be dismissed on its face if the petition as a whole establishes those required facts.
Turning to the facts of the case before us, we find that Kingsley’s petition for judicial review has set forth sufficient facts to demonstrate his standing, the exhaustion of his available administrative remedies, and the timeliness of his filed petition. Read as a whole, it is possible to determine from his petition that Kingsley was a party to an agency action, that he exhausted the administrative process, and that he filed the petition within the statutory period. His petition therefore establishes that he is entitled to obtain judicial review under the KJRA. Because the district court and the Court of Appeals erred in their conclusion that Kingsley did not meet the requirements of K.S.A. 77-614(b)(5), we reverse those decisions.
KS.A. 77-614(b)(6)
K.S.A. 77-614(b)(6) states that petitions for judicial review under the KJRA “shall set forth . . . the petitioner’s reasons for believing that relief should be granted.” In other words, a petition for judicial review must set forth the specific issues that will be raised before the district court. See Bruch, 282 Kan. at 785-87. This court has indicated this requirement serves two purposes: (1) It puts the district court and administrative agency on notice as to what issues will be reviewed, and (2) it assures that only issues that were raised at the administrative hearing will be considered on appeal. Bruch, 282 Kan. at 783.
In Bruch, we held that the plaintiff s petition for judicial review failed to set forth the specific issues to be considered on review. The relevant portions of that petition read:
“ ‘6. That plaintiff seeks review of all issues raised by plaintiff in the October 7, 2004, hearing before the administrative hearing officer, in Hutchinson, Reno County, Kansas.
“ ‘7. That the order suspending plaintiff s driving privileges should be vacated by this Court because the officer lacked reasonable suspicion to begin a DUI investigation; the office[r] lacked probable cause to arrest plaintiff; that plaintiff s due process rights were violated because he was not allowed to subpoena relevant witnesses to his administrative hearing; that plaintiff also seeks review of all issues raised before the administrative hearing officer at the October 7, 2004, hearing.’ ” 282 Kan. at 767.
We held that these paragraphs failed to strictly comply with the pleading requirements of the KJRA because they failed to raise with any specificity the key issues on appeal — the administration of and consent to the preliminary breath test. This court indicated that the reference in Bruch’s petition to reasonable suspicion and/ or probable cause was not specific enough to confer jurisdiction over the breath test because reasonable suspicion was “far too expansive of an issue” and “could include any number of arguments.” 282 Kan. at 786 (citing Angle v. Kansas Dept. of Revenue, 12 Kan. App. 2d 756, 765, 758 P.2d 226, rev. denied 243 Kan. 777 [1988]). We concluded that Bruch failed to strictly comply with K.S.A. 77- 614(b)(6) “because he failed to state in the petition for review that he was raising the issues of administration of and consent to the PBT.” Bruch, 282 Kan. at 786.
Based on these conclusions, we affirmed the district court’s dismissal of Bruch’s petition for judicial review for lack of subject matter jurisdiction. 282 Kan. at 787. Notably, Bruch did not merely find that the court lacked jurisdiction to review the issue involving the preliminary breath test. Instead, the court dismissed the entire action on the basis of the faulty petition. Bruch clearly stated that a “petition for review under K.S.A. 8-259 must strictly comply with the pleading requirements of K.S.A. 77-614(b),” and the failure to comply results in a lack of jurisdiction to hear the case. (Emphasis added.) 282 Kan. at 787.
It is clear from Bruch that the petition for judicial review is jurisdictional. Thus, if the only issues raised by a licensee during the course of a district court’s review of a driver’s license suspension were not specifically pleaded in the petition for judicial review, the appeal should be dismissed for lack of subject matter jurisdiction. Bruch is silent, however, on the degree of specificity required of a petition for judicial review under K.S.A. 77-614(b)(6) in order to satisfy an initial motion to dismiss.
The plain language of K.S.A. 77-614(b)(6) requires a petitioner to include in his or her petition for judicial review the petitioners reasons for believing that relief should be granted. We interpret this language to state that as long as the petitioner sets forth sufficiently specific reasons for relief so that the court and agency can ascertain the issues that will be raised before the district court, the petitioner has satisfied the pleading requirement. If the district court later determines that the petitioner’s case consists only of issues that were not specifically pleaded in the petition for judicial review, the court may do what it did in Bruch — dismiss the petition for lack of jurisdiction.
Thus, a petition for judicial review strictly complies with K.S.A. 77-614(b) (6) when the reasons for relief set forth in the petition give the court and the agency notice of the issues that will be raised. While it is a better practice for the language in the petition for judicial review to mirror the statutory basis for the specific relief requested, the failure to cite to specific statutory language will not result in a lack of jurisdiction to review the agency decision.
Applying this standard to the petition before us, we conclude that Kingsley has set forth reasons why he believes relief should be granted: namely, that he “was subjected to an illegal and improper preliminary breath test,” that his “due process rights were violated because he was not allowed to subpoena relevant witnesses to his administrative hearing,” and that “tire officer conducted an illegal search of [his] vehicle.”
Because Kingsley set forth these reasons for believing that relief should be granted, the district court erred when it dismissed the case on the face of Kingsley s petition under K.S.A. 77-614(b)(6). We stress that in reaching the conclusion drat the district court should not have dismissed the case for lack of jurisdiction, we are in no way commenting on the merits of these issues. At some point later in the proceedings, the district court may determine that Kingsley cannot succeed on the particular issues raised in his petition and thus dispose of these claims by way of summary judgment. See Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 176 P.3d 938 (2008) (the exclusionary rule does not apply in appeals from administrative license suspensions); Kempke v. Kansas Dept. of Revenue, 281 Kan. 770, 133 P.3d 104 (2006) (de novo hearing component of K.S.A. 8-259 preserves the due process rights of licensees in administrative suspensions of driver s licenses). In this case, however, we merely hold that by setting forth these specific reasons for believing that relief should be granted, Kingsley has strictiy complied with the pleading requirements of K.S.A. 77-614(b)(6).
Conclusion
The district court erred when it concluded that Kingsley’s petition for judicial review should be dismissed under K.S.A. 77-614(b)(5) and (b)(6). Kingsley’s petition sets forth facts demonstrating that he is entitled to judicial review — that he has standing, has exhausted his administrative remedies, and has complied with the applicable timing requirements. The petition also sets forth Kingsley’s reasons for believing why relief should be granted in this case. For these reasons, we reverse the district court’s dismissal of Kingsley’s petition and remand to the district court for further proceedings.
(2) Does the district court have jurisdiction to consider THE CLAIMS RAISED IN KINGSLEY’S PETITION?
In its response to Kingsley’s petition for this court’s review, the KDR argues that even if Kingsley’s petition for judicial review complied with the KJRA’s pleading requirements, the district court— and by extension, this court — lacks subject matter jurisdiction to hear any argument relating to Kingsley’s claims on appeal because Kingsley did not present any evidence to substantiate those claims during his administrative hearing. The KDR asserts that because Kingsley failed to present any evidence at the hearing on the issues raised in his petition for judicial review, the court does not have jurisdiction to review the hearing officer’s decision with regard to those issues.
The KDR characterizes its claim as one involving the requirement for respondents to exhaust all administrative remedies before filing a petition for judicial review. In essence, the KDR claims that because Kingsley did not present evidence at the administrative hearing to substantiate the claims in his petition, he did not adequately litigate those issues during the hearing and thus may not raise the issues on appeal.
Exhaustion of Remedies
The KJRA permits persons to seek judicial review of administrative actions “only after exhausting all administrative remedies available within the agency whose action is being challenged and within any other agency authorized to exercise administrative review.” K.S.A. 77-612; see Jones v. State, 279 Kan. 364, Syl. ¶ 4, 109 P.3d 1166 (2005). K.S.A. 77-607(a)(2) similarly states that a person is entitled to judicial review of an agency action when that person complies with the exhaustion requirement of K.S.A. 77-612. Thus, if a person does not exhaust all available and adequate administrative remedies before filing a petition for judicial review of an agency action, then the district court lacks subject matter juris diction to consider the contents of the petition. See Dean v. State, 250 Kan. 417, 427-28, 826 P.2d 1372, cert. denied 504 U.S. 973 (1992).
Contrary to the KDR’s characterization of this issue, the language of K.S.A. 77-612, other provisions of the KJRA, and previous opinions of this court make it clear that the KJRA’s exhaustion requirement applies to administrative procedures, not to individual issues to be reviewed. K.S.A. 77-612, which sets forth the exhaustion rule, provides further qualifications for “rulemaking proceeding^]” and “petition[s] for reconsideration.” K.S.A. 77-612(a), (c). The only relevant reference to “issues” in the KJRA is found in K.S.A. 77-617 — which sets forth limited statutory exceptions to the rule that a person must not raise issues in a petition for judicial review that were not argued before the agency — a provision separate from the KJRA’s exhaustion requirements. See K.S.A. 77-607(a)(2) (stating that the exhaustion requirement is contained in K.S.A. 77-612).
This court’s case law confirms that the exhaustion requirement of K.S.A. 77-612 applies to procedures, not individual issues. See Jones, 279 Kan. at 365 (plaintiff did not exhaust available administrative remedies because she filed no administrative claim at all but instead sought a declaratory judgment in district court); Dean, 250 Kan. at 420-21 (no jurisdiction to consider petition for judicial review in a tax case where petitioners made no attempt to request an administrative hearing to resolve their claims and thus did not exhaust their administrative remedies); W.S. Dickey Clay Mfg. Co. v. Kansas Corp. Comm'n, 241 Kan. 744, 750, 740 P.2d 585 (1987) (because plaintiff corporation failed to intervene in the administrative proceedings or otherwise participate as a party, the corporation did not exhaust its administrative remedies); see also Turner & Boisseau, Chtd. v. Kansas Bd. of Healing Arts, 26 Kan. App. 2d 36, 40, 978 P.2d 288 (1998) (plaintiffs may not seek judicial review of agency’s sanctions order since they did not seek administrative review of those orders).
The likely cause of the KDR’s confusion in this matter is certain language in Soza v. Kansas Dept. of Revenue, 33 Kan. App. 2d 254, 100 P.3d 102 (2004). Like Kingsley in this case, Soza filed a petition for judicial review of an administrative order suspending his driver’s license. Soza had previously requested an administrative hearing to review the suspension and had attended the hearing with counsel. Although Soza did not testify or present evidence at the hearing regarding why his license should be reinstated, Soza’s attorney informed the hearing officers that all issues relating to the suspension were “reserved” for appeal.
Considering Soza’s subsequent petition for judicial review, the district court granted summary judgment in favor of the KDR, finding that Soza had not actually raised any issues to be appealed at the hearing. The Court of Appeals affirmed, stating that “mere ‘reservation’ of issues at the administrative hearing is inadequate to meet the exhaustion requirement for subject matter jurisdiction of the district court on appeal of such matters.” 33 Kan. App. 2d at 257 (citing Turner & Boisseau, Chtd., 26 Kan. App. 2d at 40). The Soza court then quoted extensively from Angle v. Kansas Dept. of Revenue, 12 Kan. App. 2d 756, 764-65, 758 P.2d 226, rev. denied 243 Kan. 777 (1988) — a case involving the requirement that issues be litigated during the administrative hearing before those issues can be raised on appeal, not the exhaustion requirement. At the close of the opinion, the Soza court stated that because the plaintiff “failed to adequately raise issues at the administrative hearing,” the district court correctly dismissed the case “for failure to exhaust administrative remedies and resultant lack of subject matter jurisdiction.” 33 Kan. App. 2d at 257. No petition for review was filed from the Court of Appeals’ opinion in Soza.
The Soza decision is confusing, and its mixing of the exhaustion language with the preservation-of-issues requirement leads to the lack of clarity demonstrated by the KDR’s brief in this case. We disapprove of the Soza decision and its confusion between exhaustion of administrative remedies, a jurisdictional issue, and the preservation-of-issues requirement referenced in Angle.
The exhaustion requirement of K.S.A. 77-612 is a jurisdictional prerequisite to the entire petition for judicial review. See K.S.A. 77-607(a)(2). The failure to raise an issue at the administrative hearing only bars a district court from reviewing that particular issue. See Angle, 12 Kan. App. 2d at 764-65.
Turning to the administrative process involved in this case, K.S.A. 2007 Supp. 8-255 sets forth the procedure for challenging the suspension of a drivers license. In particular, K.S.A. 2007 Supp. 8-255(d) states that a person in Kingsley s position challenging a suspension may request an administrative hearing to review the order of suspension. K.S.A. 2007 Supp. 8-1020 sets forth the procedures to be followed at this hearing, stating that if a party disagrees with an administrative order suspending a license, he or she may file a petition for judicial review pursuant to K.S.A. 8-259. See K.S.A. 2007 Supp. 8-1020(o). K.S.A. 2007 Supp. 8-259(a) further provides that orders of suspension are subject to review in accordance with the KJRA.
After receiving the order of suspension from the officer, Kingsley filed a timely request for an administrative hearing. His request was granted, and a hearing was held in March 2006 to determine the propriety of his driver s license suspension. Although Kingsley was not personally present at the hearing, he was represented by counsel, who examined the police officer as a witness. Once the hearing officer issued an administrative order affirming the suspension of Kingsley’s driver’s license, Kingsley filed the petition for judicial review that is the subject of this appeal.
In short, Kingsley exhausted the entire administrative procedure available to him regarding the suspension of his license. He therefore exhausted his administrative remedies in accordance with K.S.A. 77-612.
Preservation of the Issues
KDR’s argument in its petition for review — that the district court should not consider the issues raised in Kingsley’s petition for review because he faded to substantiate those claims with evidence at the administrative hearing — is more correctly characterized as a claim that those issues were not preserved for judicial review.
In an appeal from a decision by an administrative agency, a party may only argue the issues raised at the administrative hearing. K.S.A. 77-617; In re Tax Appeal of Panhandle Eastern Pipe Line Co., 272 Kan. 1211, 1235, 39 P.3d 21 (2002). In turn, a district court may only review those issues litigated at the administrative level. See Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 773-74, 148 P.3d 538 (2006). The KDR argues that Kingsley did not adequately litigate his claims at the administrative hearing because Kingsley was not personally present and did not present any evidence or witness testimony other than that of the police officer who conducted the original traffic stop. According to the KDR, Kingsley did not offer any evidence to substantiate his claims at that hearing and so is precluded from fully litigating those issues before the district court.
The record contains no transcript for the administrative hearing in this case. Instead, the only documentation contained in the record on appeal detailing what occurred during the administrative hearing is the administrative hearing notes, which contain the following notations under the section “Other issues raised”: “(1) Lack of P.C./R.G. to arrest and request test”; “(2) PRT is an illegal search per State v. Jones”; and “(3) Violation of due process; inability to subpoena other relevant witnesses.” Kingsley’s petition for judicial review states that he will allege (1) that “plaintiff was subjected to an illegal and improper preliminary breath test”; (2) that “plaintiff s due process rights were violated because he was not allowed to subpoena relevant witnesses to his administrative hearing”; and (3) that “the officer conducted an illegal search of plaintiff s vehicle.” Contrary to the KDR’s argument, the record on appeal indicates that all of the general issues raised in Kingsley’s petition for judicial review were also raised in some form or another at the administrative hearing.
This court was faced with a similar claim in Bruch, where the court considered whether issues relating to whether the officer laid the proper foundation for the preliminary breath test and whether Rruch consented to the test had been raised at the administrative hearing. 282 Kan. at 774. As Bruch explained in some detail:
“ ‘In a motor vehicle license suspension case, unless an issue is first adequately raised at the administrative hearing, it may not be raised for the first time during the district court’s de novo review conducted pursuant to K.S.A. 8-259(a).’ [Citations omitted.]
“Thus, the first determination is whether the issue concerning proper foundation and consent to the PBT [preliminary breath test] was litigated at the administrative hearing. [Citation omitted.] Bruch’s counsel told the district court that this issue was litigated and that the administrative hearing officer refused to admit the results of the PBT.
“As there is no transcript of the administrative hearing, we must rely upon the administrative hearing notes to determine what issues were raised below. Contrary to the Department’s assertion, the PBT results are included in the administrative hearing notes. Under the provision ‘[o]ther issues raised,’ the notes do provide: ‘Lack of P.C. — >PBT—improperly administer[ed], and it is an illegal search.’ As such, it does appear that this issue was raised at the hearing below.” 282 Kan. at 774.
As was the case in Bruch, the KDR’s claim that Kingsley did not raise the general issues of which he is seeking judicial review is not supported by the record. Rather, the administrative hearing notes list the precise issues for which Kingsley is seeking review. We therefore conclude that these issues were preserved for review.
The decision of the Court of Appeals affirming the district court is reversed. The decision of the district court is reversed, and the case is remanded to the district court for further proceedings consistent with this opinion. | [
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The opinion of the court was delivered by
Luckert, J.:
This decision construes conflicting statutes to determine if a district magistrate judge has jurisdiction to conduct felony arraignments and accept guilty or no contest pleas to felony charges. Aaron Valladarez, who pled no contest to two felony charges before a district magistrate judge, argues a district magistrate judge does not have this authority and, as a result, his felony convictions are void. In addition, Valladarez argues the sentencing judge committed reversible error by not asking him personally if there was any legal reason judgment should not be rendered.
Applying rules of statutory construction to the conflicting statutes regarding arraignment jurisdiction, we conclude that a district magistrate judge who has been assigned to conduct felony arraignments by the chief judge of the judicial district has jurisdiction to conduct a felony arraignment and to comply with the due process requirements inherent in accepting a guilty or no contest plea, including determining if there is a sufficient factual basis to support the plea under K.S.A. 22-3210. In this case, the record on appeal is insufficient to determine if such an assignment was made. Consequently, the case is remanded with directions for further proceedings on that issue. On the sentencing issue, we conclude the sentencing judge erred in failing to ask Valladarez if there was any legal reason judgment should not be rendered, but the error was harmless and does not require resentencing if on remand it is determined the district magistrate judge had jurisdiction to conduct felony arraignments.
Factual and Procedural Background
These issues arise after two separate criminal cases were filed against Valladarez. In 07CR111, the State charged him with one count of sale of methamphetamine, a severity level 3 drug felony, in violation of K.S.A. 2008 Supp. 65-4161. Several months later, in an unrelated case, 07CR373, the State charged him with one count of possession of methamphetamine, a severity level 4 drug felony, in violation of K.S.A. 2008 Supp. 65-4160.
On July 26, 2007, Valladarez appeared with counsel before a district magistrate judge for a preliminary hearing in both cases. As the hearing began, the State announced it would amend the charge in 07CR111 to possession of methamphetamine in exchange for Valladarez’ waiver of the preliminary hearings in each case and his agreement to plead guilty or no contest to both possession charges.
Following the parties’ acknowledgment of the plea agreement, the district magistrate judge explained to Valladarez his right to a preliminary hearing in each case and the specific rights he would have at such a hearing. When asked, Valladarez indicated he understood his rights and had no questions. The district magistrate judge subsequently accepted Valladarez’ waiver of his preliminary hearing in both cases.
Next, Valladarez was arraigned on the charges. After Valladarez waived a formal reading of the complaints, the district magistrate judge informed Valladarez of the maximum possible sentences under the Kansas Sentencing Guidelines Act, K.S.A. 21-4701 etséq., for each criminal offense and explained the sentences could run concurrent or consecutive. Additionally, the district magistrate judge advised Valladarez of the constitutional rights he would be waiving by pleading guilty or no contest and inquired whether Valladarez had any questions and if he was satisfied with the advice and counsel of his defense attorney. Additional questions focused on the voluntariness of the pleas and on Valladarez’ ability to understand the pleas and his rights. The State then proffered a factual basis to support each plea, which the district magistrate judge found to be sufficient. Valladarez entered no contest pleas, and the district magistrate judge ordered a presentence investigation report.
Valladarez was sentenced in the Ford County District Court by a district judge who denied Valladarez’ motion for a dispositional departure sentence and imposed concurrent terms of 28 months’ imprisonment on each felony drug conviction.
Valladarez timely appeals. Our jurisdiction arises from K.S.A. 20-3018(c) (a transfer from the Court of Appeals on this court’s own motion).
Issue 1: District Magistrate Judge’s Jurisdiction
a. Preservation of Issue and Scope of Review
The issue of the district magistrate judge’s jurisdiction is raised for the first time on appeal. Typically, issues must be raised before a district court, in order to be considered by an appellate court. Trotter v. State, 288 Kan. 112, Syl. ¶ 2, 200 P.3d 1236 (2009). There are exceptions to this general rule, however, including a well-recognized and long-standing exception allowing subject matter jurisdiction to be raised at any time. This exception recognizes that “ ‘parties cannot confer subject matter jurisdiction by consent, waiver, or estoppel. Nor can parties convey jurisdiction on a court by failing to object to its lack of jurisdiction.’ [Citations omitted.]” State v. Elliott, 281 Kan. 583, 588, 133 P.3d 1253 (2006). Thus, the fact that Valladarez failed to challenge subject matter jurisdiction in the district court does not bar his appeal. See Trotter, 288 Kan. 112, Syl. ¶ 4; Elliott, 281 Kan. at 588-89; State v. Minor, 197 Kan. 296, 299-300, 416 P.2d 724 (1966).
The issue that Valladarez now raises regarding the district magistrate judge’s jurisdiction requires us to interpret the statutes that define the subject matter jurisdiction of a district court and its judges. See Kan. Const., art. 3, § 6(b) (“The district courts shall have such jurisdiction in their respective districts as may be provided by law.”); State v. Woolverton, 284 Kan. 59, 67, 159 P.3d 985 (2007) (court’s subject matter jurisdiction is governed by statute). Issues based on statutory interpretation present questions of law over which appellate courts exercise unlimited review. State v. Hall, 287 Kan. 139, 143, 195 P.3d 220 (2008); Woolverton, 284 Kan. at 67; State v. Johnson, 283 Kan. 649, 652, 156 P.3d 596 (2007).
The rules of statutory interpretation are well known, beginning with the fundamental rule that effect must be given to the intent of the legislature as expressed. Thus, when the language of a statute is plain and unambiguous, courts must apply that language rather than determine what the law should or should not be, speculate as to legislative intent, add something not readily found in the statute, resort to canons of statutory construction, or consult legislative his tory. In re Adoption of A.A.T., 287 Kan. 590, 627, 196 P.3d 1180 (2008), cert. denied 566 U.S. 1184 (2009). In this case, however, ambiguity arises because various statutes are in conflict and, as a result, the canons of statutory construction must be applied and legislative history may be consulted for indications of legislative intent.
b. Conflicting Statutes
In arguing that district magistrate judges do not have jurisdiction to conduct felony arraignments, Valladarez relies on K.S.A. 22-2202(3), which defines “arraignment” to mean “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 with which the defendant is charged, and asking the defendant whether the defendant is guilty or not guilty.” (Emphasis added.) As Valladarez notes, under this statute a district magistrate judge lacks authority to arraign a defendant on felony charges because a district magistrate judge does not have jurisdiction to impose a felony sentence. See K.S.A. 20-302b(a) (limiting district magistrate judge’s criminal trial jurisdiction to traffic and tobacco infractions and misdemeanor charges).
Valladarez suggests that this limitation is consistent with Congress’ restriction of a federal magistrate judge’s arraignment jurisdiction to cases where a defendant consents to the magistrate’s accepting a plea. See, e.g., United States v. Montano, 472 F.3d 1202, 1204 (10th Cir. 2007) (“A [federal] magistrate judge has jurisdiction to conduct a plea hearing and subsequently accept a defendant’s plea where the defendant consents.”); 2 Crim. Prac. Manual § 46:10, p. 46-9 (West 2009) (federal district magistrate judges are permitted to accept guilty pleas if defendant expressly consents); see also Gomez v. United States, 490 U.S. 858, 873-76, 104 L. Ed. 2d 923, 109 S. Ct. 2237 (1989) (“additional duties” clause of 28 U.S.C. § 636[b][3] does not authorize a federal magistrate judge to conduct jury selection in felony trial without defendant’s consent); United States v. Mendez-Lopez, 338 F.3d 1153, 1158-59 (10th Cir. 2003) (defendant’s consent to federal magistrate judge’s taking of verdict extended to magistrate judge’s handling of the deliberating jury unless a need arose to consult the district judge). However, the United States Magistrate Judges Act, 28 U.S.C. §§ 631, 636 (2006), does not apply to proceedings in a state court, and the choices Congress made in determining a federal magistrate judge’s jurisdiction do not require the Kansas Legislature to impose similar limitations on Kansas district magistrate judges. Consequently, the federal authorities cited by Valladarez are neither controlling nor persuasive.
In addition to these federal authorities, Valladarez relies on three Kansas cases—State v. Boone, 218 Kan. 482, 543 P.2d 945 (1975), cert. denied 425 U.S. 915 (1976); State v. Bloomer, 197 Kan. 668, 421 P.2d 58 (1966), cert. denied 387 U.S. 911 (1967); and State v. Talbert, 195 Kan. 149, 402 P.2d 810, cert. denied 382 U.S. 868 (1965). In Boone, the court cited Bloomer and Talbert as authorities supporting its holding that “[t]he magistrate in a felony case has no jurisdiction to arraign the accused or to accept a plea of guilty of the charge. [Citation omitted.]” 218 Kan. at 485. To further emphasize its point, the Boone court explained that a district magistrate judge’s authority to conduct a prehminary hearing did not equate to the authority to conduct an arraignment, stating: “[A] magistrate conducting a prehminary examination serves a limited function — to determine whether a crime has been committed and whether there is probable cause to believe that the accused committed it.” 218 Kan. at 485. Furthermore, “[t]he object of a preliminary examination is not to determine the guilt or innocence of the accused. The examining magistrate has no power to acquit but only the power to discharge from custody.” 218 Kan. at 485; see also Bloomer, 197 Kan. at 671 (same); Talbert, 195 Kan. at 152 (stating that district magistrate judge in felony case “ ‘has no jurisdiction to arraign the accused or to accept plea of guilty,’ ” quoting State v. Jordan, 193 Kan. 664, Syl. ¶ 3, 396 P.2d 342 [1964], cert. denied 380 U.S. 920 [1965]).
What Valladarez’ argument ignores is that all three cases— Boone, Bloomer, and Talbert—predate the Kansas Legislature’s 1999 statutory amendments to K.S.A. 20-302b(a) and K.S.A. 22-2902(7), which expanded the jurisdiction of district magistrate judges. See L. 1999, ch. 159, secs. 1, 5. The language added to K.S.A. 20-302b(a) allows a district magistrate judge to “hear felony arraignments subject to assignment pursuant to K.S.A. 20-329.” K.S.A. 20-329 allows a chief judge of a judicial district to assign cases. This expanded authority was also added to K.S.A. 22-2902(7), a statute relating to preliminary hearings, by providing: “The judge of the district court, when conducting the preliminary examination, shall have the discretion to conduct arraignment, subject to assignment pursuant to K.S.A. 20-329 and amendments thereto, at the conclusion of the prehminary examination.” The phrase “judge of the district court” is defined in K.S.A. 20-301a to include both district judges ánd district magistrate judges; thus, the 1999 amendment to K.S.A. 22-2902(7) grants district magistrate judges jurisdiction to conduct an arraignment at the conclusion of a prehminary hearing, if assigned to do so.
The State relies on these amendments to K.S.A: 20-302b(a) and K.S.A. 22-2902(7) to support its argument that the district magistrate judge in this case had jurisdiction to arraign VaUadarez. While the State is correct that these amendments support its position, ambiguity arises because the 1999 amendments are in conflict with the statute relied on by Valladarez, K.S.A. 22:2202(3), which limits a district magistrate judge's arraignment jurisdiction to traffic and tobacco infractions and misdemeanor charges. When statutes are in conflict, we often state that “ ‘[g]eneral and special- statutes should be read together and harmonized whenever possible, but to the extent a conflict between them exists, the special statute will prevail unless it appears the legislature intended to make the general statute controlling/ [Citations omitted.]” Pieren-Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 89, 106 P.3d 492 (2005). In this situation, however, an argument can-be made that each provision could be considered the “special” statute — K.S.A. 22-2202(3) has a very specific definition of arraignment and K.S.A. 20-302b(a) and K.S.A. 20-2902(7) are specific to district magistrate judges' jurisdiction and specificaUy mention arraignment in that context. Thus, this rule of statutory construction does not resolve the issue.
Under other rules of statutory construction, when statutes are ambiguous, courts may look to the historical backgrounds of the enactments, the circumstances attending passage, the purposes to be accomplished, and the effects the statutes may have under the various constructions suggested. In re Adoption of G.L.V., 286 Kan. 1034, 1041, 190 P.3d 245 (2008). Here, the legislative record reveals the 1999 amendments were specifically intended to extend the jurisdiction of district magistrate judges.
In hearings on the proposed legislation, the Senate Judiciary Committee was presented with the “Report of the Organization of Courts Subcommittee to the Kansas Citizens Justice Initiative,” which recommended several changes in the scope of a district magistrate judge’s jurisdiction. One recommendation was to authorize district magistrate judges “to conduct arraignments, take pleas and to order pre-sentence investigations in felony cases.” The report contained an analysis of the proposal, stating:
“Magistrate judges are authorized to conduct arraignment type proceedings in misdemeanor cases and are generally familiar with the arraignment process. Magistrates are also authorized to conduct preliminary hearings in felony cases but they are not authorized to arraign a felony defendant. Customarily arraignment follows immediately after the preliminary hearing. However, because a magistrate judge cannot arraign, arraignments are often delayed because a district judge may not be readily available. The resulting delay and scheduling problems are exacerbated in multi-county districts where only one or two district judges sit.” Minutes, Sen. Judiciary Comm., March 18, 1999, attach. 2-21 to 2-22.
Repeated throughout the testimony of other proponents of the legislation — the Board of Indigents’ Defense Services, the Kansas District Judges Association, and the Kansas District Magistrates Association — was the view that allowing district magistrate judges to conduct felony arraignments would add efficiency to the process and should be an available option when a chief judge of a judicial district deems it appropriate. The sole opponent to the legislation, the Kansas County and District Attorneys Association, recognized these potential benefits as well and did not object to magistrate judges conducting arraignments; rather, the Association sought protections against speedy trial problems that might arise if a district magistrate judge did not have authority to immediately place the case on a trial calendar of a district judge. Overall, however, the testimony and legislative history reflects a clear intent to expand district magistrate judges’ jurisdiction to cover felony arraignments.
In addition, under another rule of statutory construction, it is presumed that the legislature intends to change the law when it enacts an amendment. State v. Gracey, 288 Kan. 252, 260, 200 P.3d 1275 (2009). Considering the combination of this presumption and the legislative history, we hold that K.S.A. 20-302b(a) and K.S.A. 22-2902(7) grant a district magistrate judge jurisdiction to conduct a felony arraignment if the chief judge of the judicial district has assigned the district magistrate judge to do so. We further conclude that the legislature intended for that grant of jurisdiction to control over the conflicting provisions of K.S.A. 22-2202(3), which would have the effect of limiting a district magistrate judge’s arraignment jurisdiction to traffic and tobacco infractions and misdemeanor charges.
The question remains whether Valladarez is correct that the power to arraign does not allow a district magistrate judge to (1) determine whether there is a sufficient factual basis to support the plea or (2) to adjudge a defendant guilty of felony charges. In asserting the power to arraign does not extend to these functions, Valladarez relies on K.S.A. 22-3205(a), which defines the procedure for an arraignment, stating: “Arraignment shall be conducted in open court and shall consist of reading the complaint, information or indictment to the defendant or stating to the defendant the substance of the charge and calling upon the defendant to plead thereto.” Valladarez notes that accepting a plea of guilty or no contest requires several additional steps as specified in K.S.A. 22-3210:
“(a) Before or during trial a plea of guilty or nolo contendere may be accepted when:
(1) The defendant or counsel for the defendant enters such plea in open court; and
(2) in felony cases the court has informed the defendant of the consequences of the plea, including the specific sentencing guidelines level of any crime committed on or after July 1, 1993, and of the maximum penalty provided by law which may be imposed upon acceptance of such plea; and
(3) in felony cases the court has addressed the defendant personally and determined that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea; and
(4) the court is satisfied that there is a factual basis for the plea.”
Because these provisions require more than having a defendant state a plea, Valladarez argues the district magistrate judge was required to bind Valladarez over to allow a district court judge to fulfill the procedures required by K.S.A. 22-3210. Valladarez bolsters this argument by referring back to the holdings in Boone, Bloomer, and Talbert and the provisions of K.S.A. 20-302b(a), which grant a district magistrate judge the authority to adjudicate guilt or innocence in misdemeanors but not felonies. He argues that finding a factual basis to support a plea and declaring a defendant guilty upon acceptance of a plea is equivalent to trying the case. In summary, Valladarez explains his argument by stating in his brief that “[i]n order for a case to be subject to assignment pursuant to K.S.A. 20-329, a Defendant would have to have entered a plea of not guilty. K.S.A. 20-302b does not allow a Magistrate Judge to hear a plea of guilty or no contest.”
Clearly, no statute explicitly limits the district magistrate judge to hearing only a plea of not guilty in a felony case. Moreover, traditionally an arraignment has not been so limited. As this court has 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 ashing defendant whether he is guilty or not guilty or to otherwise plead as permissible by law. [State v. Rosine, 233 Kan. 663, Syl. ¶ 3, 664 P.2d 852 (1983)].’ ” (Emphasis added.) State v. Smith, 247 Kan. 455, 458, 799 P.2d 497 (1990).
See also K.S.A. 22-2202(3) (defining “arraignment” as including the step of “asking the defendant whether the defendant is guilty or not guilty.”).
When a defendant is asked whether he or she is guilty or not guilty, if the defendant replies guilty there are serious ramifications. Indeed, as the United States Supreme Court recognized in Boykin v. Alabama, 395 U.S. 238, 242, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969), “[a] plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction.” Because the plea has the effect of a confession and a waiver of the right to trial, the Court in Boykin held it was necessary to ensure the plea was voluntarily and intelligently made. To assure this due process standard was met, the Court imposed requirements on the States, specifying the federal constitutional rights of the defendant and the information that must be given to and obtained from the defendant. 395 U.S. at 242-44. K.S.A. 22-3210, which was enacted in 1970 (L. 1970, ch. 129, sec. 22-3210) codified these requirements and defined due process standards to be accorded in Kansas courts.
In other words, to properly arraign a defendant who wishes to plead guilty or no contest, the judge conducting an arraignment must comply with these procedures. See State v. Edgar, 281 Kan. 30, 36-37, 127 P.3d 986 (2006). Reflecting these requirements, this court has referred to these due process requirements as a part of the arraignment procedure. See, e.g., State v. Shaw, 259 Kan. 3, 6-11, 910 P.2d 809 (1996) (relating to defendant waiving preliminary hearing and during the arraignment stipulating to a factual basis for the plea); James v. State, 220 Kan. 284, 287, 553 P.2d 345 (1976) (stating that “proceedings in this case upon arraignment and the receiving of petitioner’s plea of guilty measured up in all respects to the federal standards made applicable to the states by the Boykin decision”).
As a result, if a district magistrate judge was not able to accord due process when asking a defendant to state a plea of guilty, not guilty, or no contest, the magistrate judge’s authority would be meaningless. Such a result would be inconsistent with another rule of statutoiy construction, the presumption that the legislature does not intend to enact useless or meaningless legislation. In re Adoption of G.L.V., 286 Kan. at 1041. Alternatively, if the authority was made meaningful to the extent of allowing a defendant to state “guilty” or “no contest” but, following Valladarez’ suggestion, the district magistrate judge could not determine if the plea was supported by sufficient facts, the defendant would be burdened with the consequences of having confessed guilt in open court without being given due process until a later hearing before a district judge. See K.S.A. 22-3210(d) (good cause required to withdraw plea of guilty or no contest before sentencing). The result would be an unreasonable burden on the rights of a defendant to enter a knowing and voluntary plea.
Moreover, the legislative history of the 1999 amendments reflects that the legislature understood and envisioned district magistrate judges accepting felony pleas of guilty or no contest. During the Senate hearings, all of the proponents and opponents of the legislation made statements indicating they understood the proposal to allow district magistrate judges to take a felony plea, and they supported granting that authority. In written testimony, a representative of the Board of Indigents’ Defense Services testified:
“Consideration has been given to magistrate judges’ ability to handle guilty pleas if they are offered at arraignment. Some attorneys have raised concerns about magistrates’ ability and training to take felony guilty pleas. However, the board believes adequate safeguards are in place to ensure that a defendant’s rights are protected when a plea of guilty is taken by a magistrate. Simply put, the board feels that, if a magistrate is deemed qualified to bind a defendant over on a felony charge, that same magistrate should also be deemed qualified to take a felony guilty plea.” Minutes, Sen. Judiciary Comm., March 18, 1999, attach. 2-26.
Consistent with this expressed intent, the Kansas Legislature took no steps to change the arraignment procedure, to provide that a district magistrate judge could only take some of the steps toward accepting a plea but not all, or to limit a magistrate judge’s authority to accept only not guilty pleas. Rather, through the 1999 amendments to K.S.A. 20-302b(a) and K.S.A. 22-2902(7), the legislature intended to grant a district magistrate judge who has been assigned to conduct felony arraignments the jurisdiction to accept a felony plea and to provide due process by complying with K.S.A. 22-3210 when doing so, including determining if there is a sufficient factual basis to support the plea. This determination and the conclusion that a defendant’s plea is knowing and voluntary allows a judge of the district court, whether a district judge or district magistrate judge properly assigned, to accept the defendant’s plea of guilty or no contest which, as stated by the United States Supreme Court in Boykin, 395 U.S. at 242, equates with a conviction. Hence, the district magistrate judge in this case had jurisdiction to accept Valladarez’ pleas if the district magistrate judge was assigned to do so by the chief judge of the judicial district.
c. Assignment in this case
In stating an alternative argument, Valladarez argues the district magistrate judge in this case was not assigned to conduct the felony arraignment. Because there was no discussion in the district court regarding the question of jurisdiction, the record on appeal contains no information regarding the assignment. This lack of support for an assignment in the record, according to Valladarez, means we must conclude there was not an assignment.
These arguments raise a question regarding the appropriate standard of review to be applied when the question is whether a district magistrate judge was assigned to conduct felony arraignments. As previously stated, typically subject matter jurisdiction raises an issue of law because it depends on application of the statutes defining a court’s or judge’s jurisdiction. Valladarez’ arguments suggest, although do not specifically state, that this standard of review is appropriate in this circumstance as well because the assignment should be an order of record in the case which could be reviewed de novo by an appellate court. He seems to suggest an alternative of allowing the assignment to be stated in a local rule or an administrative order of the chief judge.
As Valladarez suggests, when the issue is whether a district magistrate judge has been assigned to conduct felony arraignments by an order of the chief judge of the judicial district or by a local rule, an appellate court can conduct a de novo review of the order or rule and determine if the district magistrate judge has been properly assigned to conduct a felony arraignment in a particular case. However, Valladarez does not point to any requirement that the assignment take one of these forms. K.S.A. 20-302b merely states that district magistrate judges may “hear felony arraignments subject to assignment pursuant to K.S.A. 20-329.” In turn, K.S.A. 20-329 provides: “In every judicial district, the supreme court shall designate a district judge as chief judge who shall have general control over the assignment of cases within the district, subject to supervision by the supreme court.” See also Supreme Court Rule 107 (2008 Kan. Ct. R. Annot. 186) (same). These provisions do not require a written assignment and, indeed, a written assignment in all cases would be impractical because often assignments occur through the actions of die chief judge in creating and setting dockets and in devising systems that allow for automatic, administrative assignment of cases. See Krogen v. Collins, 21 Kan. App. 2d 723, Syl. ¶ 1, 907 P.2d 909 (1995) (“Pursuant to K.S.A. 20-329, K.S.A. 20-330, and K.S.A. 20-302, with or without a formal written assignment by the administrative [now chief] judge, any district judge has authority to issue an order in any case in the judge’s assigned district unless such action would contravene the administrative judge’s supervisory authority.”). Thus, a written order or court rule is not required in order for a district magistrate judge’s assignment to conduct a felony arraignment to be valid.
However, if there is no written order or rule for an appellate court to construe, the question of whether a district magistrate judge has been assigned to conduct a felony arraignment cannot be treated as a question of law; rather, it is a question of fact. See Kemp v. Kenny, 126 Fed. Appx. 504, 507 (2d Cir. 2005) (unpublished opinion) (although federal courts generally recognize subject matter jurisdiction to be question of law, issue of parties’ consent to federal magistrate judge’s jurisdiction is considered question of fact). Hence, this limited circumstance creates an exception to the general rule that subject matter jurisdiction can be decided for the first time on appeal because appellate courts do not make factual findings. State v. Thomas, 288 Kan. 157, 161, 99 P.3d 1265 (2009). Rather, a district court must make factual determinations. See Kemp, 126 Fed. Appx. at 507 (remanding for factual determination of federal magistrate judge’s jurisdiction based on consent under 28 U.S.C. § 636[c] [2006]).
In this case, the local rules of the Sixteenth Judicial District filed with the Clerk of the Supreme Court, as required by Supreme Court Rule 105 (2008 Kan. Ct. R. Annot. 185), do not address the assignments of that district’s magistrate judges. Nor are there any orders included in the record on appeal that address this question. The State attempts to fill this gap by attaching to its brief two memoranda. In one, the chief judge of the Sixteenth Judicial District outlined procedures to be followed to avoid potential speedy trial problems if a district magistrate judge accepts a felony plea. The second is a recommended colloquy and checklist for use when accepting a guilty or no contest plea. Neither document directly states that the district’s magistrate judges are assigned to conduct felony arraignments, but they reflect an expectation that the district’s magistrate judges will do so, at least occasionally. Regardless, these documents are not properly before this court because an appendix to a brief is limited to extracts from the record on appeal; it cannot serve as a substitute for the record itself. State v. Bryant, 285 Kan. 970, Syl. ¶ 8, 179 P.3d 1122 (2008) (“An appellate court does not consider appended items which are not contained in the record.”).
Because the record is silent on the issue and the State has the burden of establishing jurisdiction in a criminal prosecution, see State v. Martin, 241 Kan. 732, 742-43, 740 P.2d 577 (1987), Valladarez argues we must resolve this issue in his favor. However, the burden of establishing jurisdiction has never been extended to require a party to establish that a district magistrate judge, or any other judge, has been assigned to hear a particular case or to conduct an arraignment, especially when no objection has been stated by the opposing party. In this regard, the State notes that an appellant has the burden to designate a record affirmatively showing error and, without such a record, an appellate court presumes the action of the district court was proper. See State v. Paul, 285 Kan. 658, 670, 175 P.3d 840 (2008); State v. Goodson, 281 Kan. 913, 919, 135 P.3d 1116 (2006).
As we sort these various rules in this case of first impression, we determine that Valladarez should not be penalized for failing to raise the issue before the district court when our general rule has been that subject matter jurisdiction can be raised for the first time on appeal. In addition, the State should not be penalized for having failed to establish the assignment when no objection had been stated. Consequently, the case is remanded to the district court for determination of whether the district magistrate judge in this case was assigned and had jurisdiction to conduct felony arraignments. On remand, if it is determined that the district magistrate judge had been assigned to conduct felony arraignments, then Valladarez’ pleas are valid. If however, it is determined that the district mag istrate judge had not been properly assigned to conduct felony arraignments, the felony pleas must be set aside.
We note, however, that a general administrative order or local rule in each judicial district authorizing its district magistrate judges to conduct felony arraignments would answer the question that has arisen in this case and that may arise in similar cases. Hence, in order to alleviate the need to remand future cases in which this issue might be raised, chief judges may consider the adoption of administrative orders or local rules stating whether that judicial district’s magistrate judges, either collectively or individually, have jurisdiction to conduct arraignments in felony cases.
Issue 2: Allocution
If on remand it is determined that the district magistrate judge had jurisdiction to conduct felony arraignments, there remains a question of whether Valladarez is entitled to a new sentencing hearing because the sentencing judge failed to personally ask Valladarez if there was any legal reason why judgment should not be rendered.
Two statutes, K.S.A. 22-3422 and K.S.A. 22-3424(e)(4), “provide the defendant with statutory rights which are historically known as ‘allocution.’ ” State v. Duke, 256 Kan. 703, 724, 887 P.2d 110 (1994). Valladarez’ complaint involves solely K.S.A. 22-3422 which requires that, when the defendant appears for judgment, the court must inform the defendant of the jury’s verdict or the court’s finding and also ask if the defendant “has any legal cause to show why judgment should not be rendered.” If none is shown, the court shall pronounce judgment against the defendant. K.S.A. 22-3422.
Significantly, before the sentencing hearing, Valladarez filed a motion requesting a dispositional departure sentence and, later at sentencing, Valladarez made a statement on his own behalf. Thus, he was not denied an opportunity to address the court before it imposed the standard low-range presumptive sentences and ordered them to run concurrently.
Nevertheless, the State admits that the sentencing judge failed to ask Valladarez whether he knew of any legal reason judgment should not be imposed. But the State also cites authority establish ing that this error does not automatically require reversal of the sentence because a claim of denial of the process specified in K.S.A. 22-3422 is subject to a harmless error standard of review. See State v. Bafford, 255 Kan. 888, 889-90, 879 P.2d 613 (1994). Here, the State contends the error was harmless because Valladarez did not suffer any actual prejudice. See Duke, 256 Kan. at 723 (defendant failed to explain how the judge’s failure to expressly state the requirements of K.S.A. 22-3422, to determine if there was any legal reason judgment should not be pronounced against him, prejudiced him; therefore, error was harmless).
Countering this argument, Valladarez offers three reasons he was prejudiced by the sentencing judge’s failure to ask him if there was a legal reason why judgment should not be pronounced: (1) When he entered into the plea agreement, he expected that his criminal history would place him in a presumptive probation grid box; (2) the district magistrate judge did not inform him that the sentencing court was not required to follow the plea agreement, and (3) after absconding prior to the sentencing hearing and resisting arrest on the bench warrant, Valladarez had been charged with new crimes which, according to Valladarez, “had an effect on the judgment” in this case. These arguments fail, however, because the sentencing judge could have legally imposed a sentence even if Valladarez had been specifically asked if there was a legal reason judgment should not be imposed and Valladarez had listed these reasons.
With respect to Valladarez’ first claim of prejudice, even though both Valladarez and the State were mistaken about his criminal history score at the time of his pleas, there is no evidence of an agreement to apply a specific criminal history score or evidence of a breach of the plea agreement. Nor was there any effort by Valladarez to set aside his pleas after his more serious criminal history score was discovered. See State v. Schow, 287 Kan. 529, 546, 197 P.3d 825 (2008) (‘Where a defendant has pled guilty pursuant to a plea agreement which was based upon a mutual mistake as to defendant’s criminal history score, the district court may consider the circumstances giving rise to the mutual mistake to the extent they may implicate the factors applicable to the existence of good cause to withdraw a plea.”); State v. Haskins, 262 Kan. 728, 731-32, 942 P.2d 16 (1997) (even though the defendant was mistaken about his criminal history score at the time he entered the plea, defendant knowingly entered a guilty plea); Porter v. State, 37 Kan. App. 2d 220, 223, 152 P.3d 89 (2007) (defendant’s mistaken belief as to criminal history score did not render no contest plea to aggravated robbery involuntaiy).
As to the second claim of prejudice, although Valladarez was not specifically told that the sentencing judge was not bound to follow the sentencing agreement, he was told of the maximum sentences and fines and thus knew his sentences could be fairly substantial.
Finally, regarding the third claim of prejudice, the transcript of the sentencing hearing does show the sentencing judge became aware of new criminal charges filed against Valladarez. Yet, there is no showing that the existence of those charges affected the sentences in these cases or created a legal reason not to impose the sentences.
In summary, Valladarez makes conclusory statements and fails to establish that his substantial rights were prejudiced by the sentencing court’s allocution error. See State v. Borders, 255 Kan. 871, 879-81, 879 P.2d 620 (1994). We conclude the allocution error was harmless and does not require resentencing. Therefore, if on remand the district court finds the district magistrate judge was assigned and had jurisdiction to conduct the felony arraignments in these cases, Valladarez need not be resentenced.
Remanded with directions for further proceedings consistent with this opinion.
McFarland, C.J., not participating.
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|
The opinion of the court was delivered by
Johnson, J.:
Jay D. Decker appeals his jury trial conviction for felony murder. He claims the trial court erred by: Admitting autopsy and postmortem photographs; allowing testimony of a prior crime or civil wrong; limiting his redirect examination of a witness; and failing to give his requested cautionaiy jury instruction on accomplice testimony. Further, Decker complains that the prosecutor’s misstatement of law in closing argument denied him a fair trial, as did the cumulative effect of all of the trial errors. Finding that Decker received a fair trial, we affirm his conviction.
The criminal charges against Decker arose from the October 14, 2005, death of his daughter, Risha Jetta Lafferty, who was approximately 6 months old. At the time, Decker was living with the infant’s mother, Brandi Hendrickson, although she was at her workplace when Decker called 911 to report that the infant was not breathing. The first officer on the scene initiated CPR but was unable to revive the infant. The officer observed that the child had several bruises on her body — three on her forehead, one on her temple, others on the jawline, and one above the breastbone. The officer also noticed a “bubbling sound” coming from Risha’s lung area.
Decker initially related that, about an hour earlier, he had been asleep in the bedroom when Risha started to cry. Decker reported that he then picked up the infant, placed her on his stomach, rolled onto his back, and the momentum carried Risha off his stomach onto the floor, where she struck her head. Decker said he picked up the child to console her, but that she continued to cry for another 20 minutes and then stopped breathing. He then attempted CPR and left to call 911 from a pay phone.
When other officers subsequently asked Decker what happened, he reported that he gave Risha a bath to comfort her after she fell from his stomach, prior to calling for help. He said that after the bath, he heard an “asthma coughing-type wheeze,” following which the child stopped breathing. During this exchange, Decker volunteered that the child’s injuries may have been sustained during an incident 2 or 3 days prior. That incident was described as the child rolling off Deckers chest while they were lying on the couch, and Decker grabbing for the child and catching her by the neck.
The police transported Decker to the Law Enforcement Center. The police also contacted Hendrickson at her workplace, notified her of Risha’s death, and transported Hendrickson to the Law Enforcement Center. Hendrickson was charged with child endangerment but eventually pled to a misdemeanor in exchange for her testimony against Decker. The State charged Decker with felony murder on the theory that the death occurred during his commission of the crime of physically abusing the infant. A first trial was declared a mistrial without the parties’ objection, because of an evidentiary concern. At the subsequent trial, the jury convicted Decker of felony murder.
ADMISSION OF PHOTOGRAPHS
Decker makes a general argument that the district court abused its discretion in allowing postmortem and autopsy photographs to be admitted into evidence after the cause of death had already been determined. See State v. Sappington, 285 Kan. 176, 194, 169 P.3d 1107 (2007) (standard of review of relevance or prejudicial effect of photographs is abuse of discretion). He does not specify the particular exhibits that he claims were erroneously admitted, apparently intending to challenge all the postmortem photographs.
To preserve his challenge to the trial court’s admission of photographs, Decker was required to make an “objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.” K.S.A. 60-404. At a pretrial hearing, the defense only challenged the preautopsy photographs of the deceased child, asserting that a number of the photographs were merely cumulative. The defense requested that the trial court limit them to “just a couple.” Decker did not argue for the exclusion of the autopsy photographs, indicating that the defense would also make use of those exhibits.
However, at trial, the defense apparently changed its position and only objected to the introduction of the three autopsy photographs marked as State’s Exhibits 36, 37, and 38. Accordingly, by allowing all of the photographs other than exhibits 36, 37, and 38 to be admitted at trial without objection, Decker did not preserve an appellate review of the district court’s exercise of its discretion in admitting the unchallenged photographs. See K.S.A. 60-404; State v. Shopteese, 283 Kan. 331, 339, 153 P.3d 1208 (2007) (issues not raised before the trial court cannot be raised on appeal). But cf. State v. Hawkins, 285 Kan. 842, 845, 176 P.3d 174 (2008) (setting forth exceptional circumstances permitting new legal theory on appeal). Decker does not establish the existence of exceptional circumstances to excuse the failure to raise the issue below.
At trial, Decker’s specific complaint was that the challenged autopsy photographs depicting the inside of the baby’s skull were unduly gruesome and highly prejudicial. On appeal, he argues against the photographs’ relevance and asserts their prejudicial value outweighed any probative value.
“This court has repeatedly held that the admission of photographs of a decedent, including photographs taken during an autopsy, is not error where the photographs are relevant to matters in issue, such as the fact and manner of death or to assist in understanding a pathologist’s testimony.” State v. Randol, 212 Kan. 461, 466, 513 P.2d 248 (1973); see, e.g., State v. Warledo, 286 Kan. 927, 944-46, 190 P.3d 937 (2008); State v. Smallwood, 264 Kan. 69, 83, 955 P.2d 1209 (1998) (photos used to corroborate witness testimony admissible even though photos may appear gruesome); State v. Boyd, 216 Kan. 373, 377-78, 532 P.2d 1064 (1975). Admission of autopsy photographs can be allowed even where the cause and nature of death is undisputed. See Warledo, 286 Kan. at 946 (photographs of blood spatter admissible even though cause of death was undisputed because they helped illustrate the violence with which the defendant acted); State v. Carter, 284 Kan. 312, 329, 160 P.3d 457 (2007) (“We recognize the cause and means of death were not at issue in this case; still, the photograph was relevant.”).
Here, the photographs had relevance beyond establishing that the death was caused by physical abuse. The time when the abuse occurred was critical. As Decker acknowledges, he defended by pointing to Hendrickson as the most likely culprit who shook the baby and inflicted the physical abuse that led to the child’s death. Thus, Decker had to convince the jury that the injuries were inflicted prior to the time that Hendrickson left the residence to go to work.
However, the coroner opined that the injuries were most likely inflicted within a short time period preceding death, given the absence of swelling in the child’s brain. The contested photographs were utilized to explain that opinion. Therefore, the exhibits were highly probative to a critical issue in the case. The photographs do not appear in the record on appeal and, thus, we necessarily defer to the trial court’s assessment that their gruesome nature did not override their probative value.
EVIDENCE OF PRIOR CRIMES OR CIVIL WRONGS
The State introduced Hendrickson’s testimony about a prior incident involving an older daughter which occurred over a year before, when the couple was living in Texas. Hendrickson related that she and Decker had been drinking; that she became intoxicated and threw up on the bed; and that she went to take a shower. Her daughter then began to cry and scream. Decker brought the child into the bathroom, and when Hendrickson reached for the infant, Decker pulled the child away, put his hand on her throat, and said that he could kill her at any time.
The State contended that the evidence was relevant under K.S.A. 60-455 to show that the current incidents were not accidents. Decker countered that the prior incident was too dissimilar from the current allegations, so that the only relevance of the evidence was to show a propensity for violence, i.e., the prejudicial effect outweighed any probative value. The district court disagreed, finding that the prior incident was factually similar; that the evidence was relevant to show lack of accident which was a disputed material fact; and that the probative value of the evidence outweighed its prejudicial effect.
K.S.A. 60-455 generally prohibits evidence that the defendant committed a crime or civil wrong on another specified occasion to prove the defendant’s general disposition to commit crimes or civil wrongs and thereby provide a basis for inferring that the defendant committed the crime for which he or she is currently being pros ecuted. However, “such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” K.S.A. 60-455. If evidence of a prior crime or civil wrong is proffered, this court has required the trial court to implement certain safeguards to eliminate the danger that the evidence will be considered only to prove the defendant’s mere propensity to commit the charged crime. State v. Gunby, 282 Kan. 39, 48, 144 P.3d 647 (2006). Recently, we explained:
“Evidence of other crimes or civil wrongs committed by a criminal defendant is admissible if relevant to prove one of the eight material facts listed in K.S.A. 60-455 or some other material fact not listed in the statute, if the trial court determines (1) the relevance exists; (2) the material fact is in issue; and (3) the probative value of the evidence outweighs its prejudicial effect. In addition, to avoid error, the trial court must give a limiting instruction informing the jury of the specific purpose for admission.” State v. Reid, 286 Kan. 494, Syl. ¶ 3, 186 P.3d 713 (2008).
Here, the trial court performed the three-part analysis, making a relevance inquiry as to an identified material fact that was in issue and then weighing probative value and prejudicial effect. See Gunby, 282 Kan. at 56-57. The probative element of relevance under a K.S.A. 60-455 analysis is reviewed for an abuse of discretion, with the party alleging an abuse of discretion bearing the burden of proof. Reid, 286 Kan. 494, Syl. ¶ 5.
Citing to State v. Garcia, 285 Kan. 1, 169 P.3d 1069 (2007), Decker principally challenges the district court’s collateral finding that the two incidents were factually similar. He argues that in the first incident, Decker was not the primary caretaker of the child; Decker was drinking; Decker was accused of choking, not shaking, the child; the child did not die; and Decker and Hendrickson were fighting at the time. Decker contends that the only possible similarity between the incidents is the involvement of one of Decker’s children, albeit not Risha.
First, we would note that the similarity finding in Garcia was actually part of the relevance inquiry and was required because the disputed material fact relied upon in that case was identity. Garcia, 285 Kan. at 15 (relevance issue is whether the 60-455 evidence is similar enough to the present crimes charged to help prove identity). Here, the 60-455 evidence was not offered to prove identity, but rather the disputed material fact was whether the injuries were inflicted accidentally, i.e., absence of accident. Nevertheless, even where prior crimes have been used to prove identity, the cases “have emphasized that the crimes need not be identical, only similar.” Garcia, 285 Kan. at 15; see also State v. Moore, 274 Kan. 639, 647, 55 P.3d 903 (2002) (“Under K.S.A. 60-455, prior offenses need not be identical in nature to the offense for which the defendant is on trial. Similarity is sufficient.”); State v. Johnson, 222 Kan. 465, 469, 565 P.2d 993 (1977) (“When the trial court determines there is a similarity of offenses, which similarity has relevance in proving specific matters in issue, the prior offense may then be admitted.”).
In picking out differences between the Texas and Kansas scenarios, Decker conveniently overlooks a strikingly similar element. In both incidents, Decker grabbed an infant by the neck. In this case, Decker admitted that he grabbed Risha by the neck, albeit he said that it was done accidentally while trying to break the child’s fall from a couch. The explanation coincidentally explained the bruising on Risha’s neck. Indeed, Decker had an accidental explanation for all of the child’s injuries. Therefore, we cannot say that the district court abused its discretion in finding that the Texas incident was relevant to show that Risha’s injuries were not accidentally inflicted. See Reid, 286 Kan. 494, Syl. ¶ 5 (“An appellate court reviews a trial court’s determination of the probative element of relevance of K.S.A. 60-455 evidence under an abuse of discretion standard”; the burden of proof is on the party alleging discretion was abused.).
EXCLUDED TESTIMONY
Decker offered the testimony of Loma Henson, with whom Hendrickson and her older daughter, Aarron, had lived for a time immediately after Aarron’s birth. The defense elicited testimony that Henson had seen Hendrickson treat Aarron roughly. On cross-examination, the State asked the following:
“Q: And then you went ahead and said.Brandi [Hendrickson], you need to find another place to five probably around the end of April, do I have that right?
“A: Yes.
“Q: Okay. Now during that time she was staying at your house . . . you didn’t see her do anything abusive to Aarron, did you?
“A: Abusive as in I mean—
“Q: Well she has a baby. You didn’t see her hitting her or physically abusing her in any way?
“A: Just a little rougher than I would think you should be.
“Q: Okay, I believe you testified before you thought she had a little rough handling but nothing that you would consider abuse?
“A: Yes.”
On redirect, the defense asked Henson if Hendrickson was ever aggressive toward Henson’s child. Henson replied, before being interrupted by the State’s objection:
“Yes, that’s why I asked her to leave my house. She had put Aarron in the car seat . . . and went to make Aarron a bottle. My child . . . went up to grab Aarron’s hand, and [sic] it’s okay type thing, and Brandi stormed from the kitchen — .”
Outside of the jury’s presence, the State objected that the line of questioning was outside the scope of cross-examination. Decker argued that the State had opened the door by asking about this living arrangement and about Henson asking Hendrickson to leave the residence. The defense proffered that Henson was going to testify that Hendrickson had been asked to leave the home after Henson saw “Ms. Hendrickson [walk] toward [Henson’s] child in an aggressive manner.” The trial court sustained the State’s objection, finding that the testimony was irrelevant.
On appeal, Decker argues that the trial court abused its discretion and violated his constitutional right to present a defense when it denied him the opportunity to question Henson about the reason why Hendrickson was asked to leave Henson’s home. He claims that evidence of prior acts of abuse committed by Hendrickson was relevant to his defense and that the excluded testimony would have evidenced such acts.
We agree that evidence of Hendrickson’s prior acts of abuse toward her older daughter would further Decker’s theory of defense that Hendrickson was Risha’s abuser. Decker was able to get in that evidence. However, the excluded evidence was that Hendrickson was asked to leave Henson’s home because Hendrickson made an aggressive move toward Henson’s child, apparently in response to that child grabbing Hendrickson’s infant. We are unable to make a logical connection between an aggressive move to protect one’s own child and the likelihood that the protecting parent would abuse his or her own child. The district court did not abuse its discretion. See State v. Mathis, 281 Kan. 99, 106-07, 130 P.3d 14 (2006) (admission or exclusion of evidence lies within the sound discretion of the trial court).
PROSECUTORIAL MISCONDUCT
Next, Decker contends that the prosecutor improperly shifted the burden of proof to the defendant when, in the rebuttal portion of closing argument, the prosecutor said:
“They [sic] saying that Brandi shook the baby when? She shook the baby that night while she’s in there feeding her putting her to bed, is that what they want you to believe? They are saying that there’s a reasonable doubt about that, that you don’t know who did it. Well, you do when you look at all the evidence. And another thing is he’s no huger presumed innocent. Case is in. Evidence is in. At this point based on everything that we’ve proved, he’s guilty.” (Emphasis added.)
Although Decker failed to object, a contemporaneous objection to alleged prosecutorial misconduct during closing argument is not required in order to preserve the issue for appeal; an appellate court will apply the same standard of review regardless of whether the defendant lodged an objection. See State v. Albright, 283 Kan. 418, 428, 153 P.3d 497 (2007).
‘We employ a two-step analysis in considering claims of prosecutorial misconduct: First, the court must determine whether the prosecutor’s statements were outside the wide latitude for language and manner a prosecutor is allowed when discussing the evidence; second, it must determine whether the comments constitute plain error, that is, whether the statements were so gross and flagrant as to prejudice the jury against the accused and deny him or her a fair trial. [Citation omitted.]” State v. Scott, 286 Kan. 54, 77, 183 P.3d 801 (2008).
The second step primarily focuses on whether the misconduct is so prejudicial that it denies the defendant a fair trial and requires a particularized harmlessness inquiry. 286 Kan. at 77-78. It re quires consideration of three factors: (1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor s part; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. 286 Kan. at 78. None of these factors is individually controlling. Further, the third factor can never override the first two factors, until the harmlessness tests of both K.S.A. 60-261 (prosecutors statements were inconsistent with substantial justice) and Chapman v. California, 386 U.S. 18, 22, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967) (error had little, if any, likelihood of changing the outcome of trial), have been met. 286 Kan. at 78-79. “ ‘If this can be said, then certainly it will also be true “that the misconduct would likely have little weight in the minds of jurors.” ’ ” 286 Kan. at 79 (quoting State v. Tosh, 278 Kan. 83, 97-98, 91 P.3d 1204 [2004]).
A jury is clearly instructed to begin deliberations presuming that the defendant is not guilty. See PIK Crim. 3d 52.02. Obviously, at the time of closing argument, the axiomatic presumption of innocence remained firmly in place. Just as clearly, the prosecutor s comment that “[defendant is] no longer presumed innocent” was an unequivocally false and erroneous statement of law concerning a basic principle of criminal jurisprudence.
The State contends that Decker is taking the statement out of context. It characterizes the argument as being essentially that the jury no longer had to presume Decker was not guilty because the jury had the evidence which proved him guilty. We agree that the concluding segment of the argument, “based on everything that we’ve proved, he’s guilty,” would be fair argument. We have no problem with a prosecutor arguing that the State’s evidence has overcome the presumption of innocence. However, the State’s introduction of evidence, no matter how damning, does not terminate the presumption.
In this case, immediately after saying that the defendant was no longer presumed innocent, the prosecutor stated: “Case is in. Evidence is in.” A rational juror could easily interpret the statement, in context, to mean that once the evidentiary portion of the trial is complete, the presumption of innocence no longer applies. Ac cordingly, we find that under the first step of the analysis, the prosecutor exceeded the limits of approved rhetoric. See State v. Blockman, 19 Kan. App. 2d 56, 61, 863 P.2d 372 (1993), rev’cl on other grounds 255 Kan. 953, 881 P.2d 561 (1994) (prosecutor s comments during closing argument that defendant was no longer presumed innocent was misstatement of law); State v. McGautha, No. 88,652, unpublished Court of Appeals opinion filed March 12, 2004, rev. denied 278 Kan. 850 (2004) (statement during closing argument that presumption of innocence was over was misstatement); State v. Justice, No. 88,768, unpublished Court of Appeals opinion filed October 10, 2003, rev. denied 277 Kan. 926 (2004) (prosecutor’s statement “[h]e is no longer presumed innocent” was erroneous); Morales v. State, 143 P.3d 463, 467 (Nev. 2006) (statement by prosecutor that there was no longer a presumption of innocence because the State satisfied its burden constituted plain error); Williams v. State, 658 P.2d 499, 500-01 (Olda. Crim. 1983) (improper for prosecutor to argue defendant was no longer presumed innocent during closing arguments).
While we find that viewing the comment in its context does not save it from being error, the context does favor the State in the second step of the analysis. It does appear that the prosecutor was attempting to convey that the State had overcome the presumption of innocence by “everything that [it] proved.” We see no manifestation of ill will. Moreover, the misconduct did not rise to the level of being so gross and flagrant as to constitute plain error. The comment likely had little weight in the minds of the jurors, and we find that the error was harmless.
FAILURE TO GIVE ACCOMPLICE INSTRUCTION
Decker asserts that the district court erred in refusing to give a cautionary jury instruction on accomplice testimony. In State v. Simmons, 282 Kan. 728, 733, 148 P.3d 525 (2006), we set forth our review standard:
“ “When the trial court refuses to give a requested instruction, an appellate court must view the evidence in a light most favorable to the party requesting the instruction. . . . [A]n appellate court cannot consider the requested instruction in isolation. Rather, the court must consider all of the instructions together as a whole. If the instructions as a whole properly and fairly state the law as applied to the facts of the case, and the jury could not reasonably be misled by them, the instructions are not reversible error even if they are in some way erroneous. [Citation omitted.]’ State v. Jackson, 280 Kan. 541, 549-50, 124 P.3d 460 (2005).”
The necessity for an accomplice instruction arises when “a witness testifies that he or she was involved in the commission of the crime with which the defendant has been charged.” Simmons, 282 Kan. at 733. Decker contends that Hendrickson must be considered an accomplice because she failed to report his suspected child abuse and that failure was confirmed by her plea bargain. Decker s theory is refuted by our holding in Simmons that “the mere failure to stop a crime or to report a crime does not make one an accomplice.” 282 Kan. at 738.
At trial, Decker did not portray Hendrickson as an accomplice. His defense theory was to paint her as the sole perpetrator of the physical abuse. Moreover, the defense challenged Hendrickson’s credibility and made certain the jury was aware that she had received a plea bargain in exchange for her testimony. Not only is it clear that Hendrickson does not meet the definition of an accomplice, but viewing the evidence in the fight most favorable to Decker, it is equally clear that the jury could not have been misled or confused. The district court did not err in refusing to give the instruction.
CUMULATIVE ERROR
Finally, Decker argues that the evidence against him was circumstantial, so that the cumulative effect of the alleged trial errors mandate a reversal of his conviction. However, we do not get to an analysis of the strength of the evidence unless we have found multiple errors; one error will not support a cumulative effect theory. Here, we have found the only error to be prosecutorial misconduct in closing argument. Accordingly, Decker’s final issue must fail as well.
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|
The opinion of the court was delivered by
Rosen, J.:
On transfer from the Court of Appeals, Double M Construction, Inc. appeals from a district court decision upholding a Kansas Corporation Commission (Corporation Commission) order imposing liability for failure to properly investigate the location of a natural gas pipeline before excavating.
The parties submitted stipulated facts to the Corporation Commission. In its responsive brief, the appellee Corporation Commission refers to a number of facts outside the stipulations. Parties are bound to their stipulations, however, and a trial court or appellate court must render judgment based on those stipulated facts. Klein v. Oppenheimer & Co., 281 Kan. 330, 336, 130 P.3d 569 (2006); Shade v. Wheatcraft Industries, Inc., 248 Kan. 531, 541, 809 P.2d 538 (1991).
The stipulated facts are as follows:
Double M is an Oklahoma corporation. Double M was acting as a subcontractor for Double J Pipeline, LLC from September 26, 2006, through September 29,2006. Double M provided excavation service to Double J Pipeline in an area south of Mound Valley, Kansas, in rural Labette County.
Under the terms of the contract, Double J was the contractor. The contract provided that Double J was “to excavate under and around existing utilities.” The contract also provided that Double J was to “spot and expose line crossing ahead of equipment.” In addition, the contract contained the following clause: “Double M Construction Company, Inc. is not responsible for damage to any existing underground utility lines that have not been located and uncovered prior to our trenching.”
On September 26, 2006, Double J Pipeline notified Kansas One Call that it would be excavating south of Mound City. Kansas One Call informed Double J Pipeline that all facilities would be marked by 12:01 A.M., September 29, 2006. Because of a mapping error in the Kansas One Call database, the facilities’ owner did not receive notification of the intent to excavate. The error was discovered before Double M began any excavation.
Double J Pipeline placed a second call to Kansas One Call noting the error and notifying Kansas One Call of the proper excavation area. The mapping error was corrected, and Kansas One Call informed Double J Pipeline that all facilities would be properly marked by Tuesday, October 3, 2006. On September 29, 2006, Double J Pipeline directed Double M to excavate along the planned gas-gathering route.
. Kansas One Call’s records indicated that Double M did not independently contact Kansas One Call to request utility locations or to provide notification of its intent to excavate. During the excavation, equipment owned and operated by Double M struck and ruptured a 20-inch high-pressure natural gas transmission line. Natural gas escaped through the rupture and ignited, resulting in the death of a Double M employee and property damage.
The Corporation Commission issued an order directing Double M to show cause why it should not institute punitive proceedings against Double M. Double M filed a response denying liability. The Corporation Commission entered an order finding Double M at fault and assessing a $25,000 penalty against Double M, which was half the statutory maximum for two violations. Double M filed a timely petition for reconsideration under K.S.A. 66-118b and K.S.A. 77-529(a)(l), which the Corporation Commission denied. Double M then filed a timely petition for judicial review in Shawnee County District Court. The district court affirmed the Corporation Commission, and Double M took a timely appeal to the Court of Appeals. This court assumed jurisdiction on its own motion following Double M’s motion to transfer.
Double M essentially raises two arguments in its brief. First, it contends that it was not the statutory excavator because it contractually delegated its liability to Double J Pipeline. Second, it contends that it is unfair to impose sanctions on Double M without also imposing sanctions on Double J Pipeline. It frames these arguments under a variety of headings, but they condense down to repetitions of the same issues, which are governed by basic rules of statutory interpretation.
Double M initially contends that the Corporation Commission and the district court erred in imposing statutory punitive measures against Double M after it had contractually assigned to Double J Pipeline responsibility for locating utilities and liability for any damages resulting from excavations.
This appeal asks the court to construe a statutory scheme in light of the stipulated facts. The standard of appellate review is de novo for cases decided by the district court based upon documents and stipulated facts. In re Harris Testamentary Trust, 275 Kan. 946, 951, 69 P.3d 1109 (2003). Interpretation of a statute is a question of law over which this court has unlimited review. Genesis Health Club, Inc. v. City of Wichita, 285 Kan. 1021, 1031, 181 P.3d 549 (2008). An appellate court’s first task is to “ascertain the legislature’s intent through the statutory language it employs, giving ordinary words their ordinary meaning.” State v. Stallings, 284 Kan. 741, 742, 163 P.3d 1232 (2007). statute to effect the legislature’s intent.” In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007), cert. denied 555 U.S. 937 (2008).
“When a statute is plain and unambiguous, we do not speculate as to the legislative intent behind it and will not read the statute to add something not readily found in it. We need not resort to statutory construction. It is only if the statute’s language or text is unclear or ambiguous that we move to the next analytical step, applying canons of construction or relying on legislative history construing the
An administrative agency’s interpretation of a statute is not binding, and the final construction of a statute always rests with the courts. Denning v. KPERS, 285 Kan. 1045, 1048, 180 P.3d 564 (2008).
As a general rule, a punitive statute should be strictly construed in favor of the accused, which simply means that words are given their ordinary meaning. Any reasonable doubt about their meaning is decided in favor of the accused. State v. Kleypas, 282 Kan. 560, 564, 147 P.3d 1058 (2006). This rule of strict construction, however, is subordinate to the rule that judicial interpretation must reasonably and sensibly give effect to the legislative design and intent. State v. Paul, 285 Kan. 658, 662, 175 P.3d 840 (2008).
The Kansas Underground Utility Damage Prevention Act, K.S.A. 66-1801 et seq., governs the procedures for excavating in areas containing underground natural gas pipelines. This Act creates a statutory duty to the public to ensure the safety and integrity of underground utilities.
K.S.A. 66-1802(d) defines an “excavator” to be “any person who engages directly in excavation activities within the state of Kansas, but shall not include any occupant of a dwelling who: (1) Uses such dwelling as a primary residence; and (2) excavates on the premises of such dwelling.” A “person” includes “any individual, partnership, corporation, association, franchise holder, state, city, county or any governmental subdivision or instrumentality of a state and its employees, agents or legal representatives.” K.S.A. 66-1802(m). “Excavation” means “any operation in which earth, rock or other material below the surface is moved or otherwise displaced by any means,” excepting agricultural tilling, certain railroad, road, or ditch maintenance, and fossil fuel exploration and production. K.S.A. 66-1802(c).
K.S.A. 66-1803 provides:
“An excavator shall not engage in excavation near the location of any underground facility without first having ascertained, in the manner prescribed in this act, a location of all underground facilities in the proposed area of the excavation.”
K.S.A. 66-1804 requires that an excavator serve all operators of underground facilities in the area with advance notice of its intent to excavate, except in emergency situations. The notice must be served at léast 2 firll working days, but not more than 15 calendar days, before the scheduled excavation start date. K.S.A. 66-1804(a).
K.S.A. 66-1805 establishes a single notification center for the state of Kansas, which is Kansas One Call. Each operator of an underground facility is a member of the notification center. K.S.A. 66-1805(a). The K.S.A. 60-1804 notification of intent to excavate shall be given by telephone at a toll-free number or by other communication methods approved by the notification center. K.S.A. 66-1805(b). The notification center is required to document the receipt of notices from excavators. K.S.A. 66-1805(d).
Violators of the Underground Utility Damage Prevention Act are subject to civil penalties and injunctive relief under K.S.A. 66-1.151. Factors that the Corporation Commission must take into account include the size of the business, the gravity of the violation, and the good faith in attempting to achieve compliance. K.S.A. 66-1.152.
The Corporation Commission concluded that Double M is clearly an “excavator” under the Underground Utility Damage Prevention Act. Double M challenged this conclusion in its appeal to the district court and renews that challenge in the current appeal. Double M apparently asks this court to find that it entered into a contract that transferred its statutory responsibilities to another party.
The statutory language applies clearly and unambiguously to Double M. Double M is a corporation, thus qualifying as a “person” under K.S.A. 66-1802(m). Double M engaged directly in excavation activities within the state of Kansas and was not the occupant of a dwelling where it conducted its excavation activities, thus quafifying it as an “excavator” under K.S.A. 66-1802(d). Double M was therefore required to notify in advance underground utilities of its intent to excavate. K.S.A. 66-1804(a); K.S.A. 66-1805(b). Double M failed to communicate with Kansas One Call, which is the authorized notification center. This failure to perform its statutory duty rendered Double M subject to penalties under K.S.A. 66-1, 151. No statutory construction beyond reading the plain language of the statutes is required to reach this conclusion.
Double M nevertheless contends that a variety of equitable grounds should prevent the Corporation Commission from imposing penalties on it.
Double M argues that the Corporation Commission and the district court erred by failing to recognize that Double J Pipeline contractually agreed to assume responsibility for locating the underground utility lines: holding Double M responsible “punishes the party that ‘touches the dirt/ ” which is “no more fair or just as it would be to blame a blindfolded captive for his captor’s act of leading him to tumble headfirst down a stairway.”
When a statute positively governs the law in a particular situation, equitable considerations do not apply. Pownall v. Connell, 155 Kan. 128, Syl. ¶ 1, 122 P.2d 730 (1942); Rombo v. Bank, 88 Kan. 257, 259, 128 Pac. 182 (1912); U.S.D. No. 207 v. Northland Nat’l Bank, 20 Kan. App. 2d 321, 333, 887 P.2d 1138 (1994), rev. denied 257 Kan. 1096 (1995). In drafting the language of the statutory scheme, the legislature clearly intended the statute to govern “the party that touches the dirt.” It is not the function of the courts to substitute their social and economic beliefs for the judgment of the legislature or to determine whether a statute is wise or necessary. Blue v. McBride, 252 Kan. 894, 915, 850 P.2d 852 (1993).
Furthermore, although Double M challenges the fairness of enforcing obligations on it rather than on its “captor,” it fails to demonstrate that making a single telephone call to Kansas One Call would be burdensome. By fulfilling its statutory duty, Double M would have removed the blindfold that it elected to wear when it commenced excavation.
Double M next argues that the district court erred by failing to construe the statutory scheme in favor of the party subject to the penalty. Within this argument, Double M contends that it was the “innocent party” and that Double J Pipeline was an unpunished “guilty party.” This argument again asks the court to rule contrary to plain and unambiguous statutory language, which is outside the standard of appellate review. See State v. Paul, 285 Kan. at 661-62. Double M articulates no argument suggesting that the statutory language is unclear or ambiguous.
Double M would have this court find that a corporation that specializes in excavation, enters into a contract to excavate, and then carries out an excavation is not really an excavator under the statute. It proposes that a creature that looks like a duck, walks like a duck, and quacks like a duck is not a duck if it contracts with a goose to assume the duties and liabilities of a duck.
Unless a statute expressly or implicitly allows for delegation, statutory duties imposed on one party generally may not be delegated by contract to another party. See State, ex rel., v. City of Topeka, 176 Kan. 240, 252, 270 P.2d 270 (1954). The Underground Utility Damage Prevention Act does not provide for delegation of duties. It appears sensible that the parly actually undertaking the risk of excavation would be the party that must ascertain that no harm would result from the excavation. Allowing a party to delegate that task would promote the very situation that occurred in the present case.
Double M further contends that the Corporation Commission and the district court should have construed the statute in light of the common law. This argument is little different from the earlier arguments: it falsely posits that some construction is necessary beyond the plain language of the statute.
Double M cites case law holding that the employer or contractor may not delegate an inherently dangerous duly to an employee or subcontractor. This appears to be the rule in common-law tort actions. See, e.g., Balagna v. Shawnee County, 233 Kan. 1068, Syl. ¶ 4, 668 P.2d 157 (1983). The legislature may, however, create statutory remedies independent of common-law remedies. See Williamson v. Amrani, 283 Kan. 227, 242, 152 P.3d 60 (2007). The plain statutory language clearly imposed a duly on Double M, a duty that Double M breached. Double M’s reliance on the common law of negligence actions is not relevant to the sanctions imposed pursuant to the statute.
Double M repeatedly emphasizes that Double J Pipeline should have been punished for failing to call Kansas One Call. The stipulated facts reveal, however, that Double J Pipeline contacted Kansas One Call as required by statute. Double J Pipeline may have been negligent in fading to inform Double M of its communica tions with Kansas One Call, but that appears to be a matter for resolution between Double M and Double J Pipeline, not between Double M and the Corporation Commission.
Double M concludes its journey through this issue with the argument that applying the plain language of the statute produces injustice or an unreasonable result. It states that it was an “out-of-state subcontractor with no knowledge of the statute and no contractual responsibility to locate and protect the lines.”
Parties are presumed to know that the legislature has chosen to regulate certain conduct. See Cheek v. United States, 498 U.S. 192, 199, 112 L. Ed. 2d 617, 111 S. Ct. 604 (1991) (every person is presumed to know the law); State v. Young, 228 Kan. 355, 360, 614 P.2d 441 (1980) (all persons are presumed to know general public laws of state where they reside, as well as legal effects of their acts); State ex rel. Murray v. Palmgren, 231 Kan. 524, 536, 646 P.2d 1091 (1982) (ignorance of law no excuse for violating law). Double M’s asserted ignorance of the statute does not excuse its violation of the statute, and, as noted earlier, its contractual relationship with Double J Pipeline is irrelevant to enforcing the statute.
Double M insists that it was an “impossible act” to notify Kansas One Call of its intent to dig near a utility line. Double M does not explain, however, why it was impossible for it to call Kansas One Call or how it could have carried out an excavation without intending to carry out an excavation. That it was unaware that a pipeline was in the vicinity begs the question; excavators are required to contact Kansas One Call in order to determine whether pipelines are in the vicinity.
Double M raises a second issue pertaining to constitutional protection of the freedom to contract. It contends that it has a constitutional right to delegate away its duty to engage in safe excavation practices and that Double J Pipeline contractually agreed to assume certain safety precautions. Double M concludes that the United States Constitution protects it with virtually unfettered freedom to enter into contracts and the Kansas Legislature infringed on this freedom by not allowing Double M to contract away its statutory duties.
Double M’s statutory duty is to the public and is designed to ensure the safety and integrity of underground utilities. It is not a private contractual matter. Double M has turned the constitutional argument on its head — it seeks to undo the legislature’s freedom to legislate. The Underground Utility Damage Prevention Act was enacted in 1993. L. 1993, ch. 217, sec. 1. Double M and Double J Pipeline entered into their contract in 2006. Under the rubric of a constitutional freedom of contract, Double M argues that private parties may contractually agree to terms that violate existing statutes. A criminal’ defendant might similarly argue that he could commit murder and then enter into a binding contract assigning punishment to a third party.
The United States Constitution does not impose such a limitation on the legislature.
“It has long been recognized that ‘[l]iberty of contract is not an absolute concept.’ Hartford Accident Co. v. Nelson Co., 291 U.S. 352, 360, 78 L. Ed. 840, 54 S. Ct. 392 (1934), and numerous cases cited therein. Although the right to contract is a part of the liberty protected by due process guarantees, it is subject to such restraints as a state in the exertion of its police power reasonably may put upon it to safeguard the public interest. West Coast Hotel Co. v. Parrish, 300 U.S. 379, 391-92, 81 L. Ed. 703, 57 S. Ct. 578 (1937).” State v. Mwaura, 4 Kan. App. 2d 738, 740, 610 P.2d 662, rev. denied 228 Kan. 807 (1980).
The Kansas Legislature has the constitutional authority to impose a burden on a party that may not be contractually waived or assumed by another party. 4 Kan. App. 2d at 740-41. For example, the legislature may constitutionally impose on the seller of a used car a nondelegable duty to see that the car meets minimum safety standards. 4 Kan. App. 2d at 741. The legislature similarly has the constitutional authority to protect the lives and property around underground utilities.
Double M also submits that the Underground Utility Damage Prevention Act is vague and therefore constitutionally unsound. It contends that the definition of “excavator” found in K.S.A. 66-1802(d) is so vague as to foreclose reasonable understanding by parties subject to penalties under the statute.
The constitutionality of a statute is a question of law subject to de novo review by this court. State ex rel. Six v. Kansas Lottery, 286 Kan. 557, 562, 186 P.3d 183 (2008). A statute is presumed to be constitutional, and all doubts must be resolved in favor of its validity. Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 629-30, 176 P.3d 938 (2008).
When applied to a statute regulating a business, the standard for reviewing a vagueness-based challenge to constitutionality is “ ‘a common-sense determination of fairness’ whether an ordinary person exercising common sense can understand and comply with the statute. Boatright v. Kansas Racing Comm’n, 251 Kan. 240, 243, 834 P.2d 368 (1992).
Double M repeats its earlier arguments that Double J Pipeline was the party contractually responsible for ensuring that Kansas One Call was properly notified. Double M then concludes that the statutory reference to “any person who engages directly in excavation activities” is vague, because the word directly means “immediate[ly]” or “without a person or thing coming between.”
The appellant’s own proffered definition of the word suggests that Double J Pipeline was not an excavator under the statute. Double J Pipeline did not excavate; it hired another party “to come between” it and the excavation — Double M. It is a mystery how Double M could have driven equipment onto the excavation site and struck a gas pipeline without directly engaging in excavation. It is unclear how the legislature could have drafted the statute any more clearly without specifically naming Double M as the party required to notify Kansas One Call. Although Double M may have assumed that Double J Pipeline would attend to notification requirements, that assumption does not circumvent the clear, plain statutory language.
Double M finally argues that because Double J Pipeline notified Kansas One Call of the excavation plan, statutory requirements were satisfied and it was unnecessary for Double M to notify Kansas One Call.
The statute requires that an excavator — one directly engaged in excavation activities — notify Kansas One Call. The stipulated facts show that the excavator, Double M, did not make the required telephone call. Had Double M placed itself in contact with Kansas One Call, then the possibility would have existed that Kansas One Call would have let Double M know about the initial mistake in locating the excavation site. It maybe that Double J Pipeline should have informed Double M of the mistake, and it may be that subsequent tort or contract litigation between the two parties will transfer some or all of the liability to Double J Pipeline, but the statutory scheme places the burden of communication on the party directly engaged in excavating.
Double M did not comply with the plain, clear, and unambiguous language of the statute. Consequences of its unlawful excavation included a death and property damage.
We agree with the district court that the Kansas Corporation Commission acted within its statutory mandate, and we accordingly affirm.
McFarland, C.J., not participating.
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The opinion of the court was delivered by
Beier, J.:
This dispute between the unmarried natural mother and natural father of A.J.S. requires us to revisit our state’s adherence to the existing Indian family doctrine. The doctrine was first articulated in In re Adoption of Baby Boy L., 231 Kan. 199, 643 P.2d 168 (1982), and since then has been invoked in Kansas and elsewhere to except certain custody proceedings involving children with Indian ancestry from the provisions of the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901 et seq. (2000).
Father — whose paternity has been confirmed since oral argument before this court, thus lifting a stay on issuance of this opinion — is an enrolled member of the Cherokee Nation. Mother consented to adoption of their child, A.J.S., by members of her family and sought to terminate Fathers parental rights in state district court in Sedgwick County. The district judge rejected Fathers effort to transfer this matter to tribal court and rejected the tribe’s attempt to intervene, basing his decision on Baby Boy L. This is an interlocutory appeal from those rulings.
Mother had been dating Father approximately 1 month before she became pregnant with A.J.S. The day after the baby was bom, Mother filed a petition to terminate Father’s parental rights. She also signed a consent to the adoption of A.J.S. by members of her family. A temporary order placing A.J.S. in the custody of the intended adoptive parents was entered, and A.J.S. has resided with the intended adoptive parents since that order.
Father filed an Indian Heritage Affidavit, acknowledging that he was the father of A.J.S. and that he was an enrolled member of the Cherokee Nation. He invoked the placement preferences of the ICWA; requested that the tribal court assume jurisdiction; and requested that A.J.S. be placed with him, pending further proceedings. In his answer to Mother’s petition, filed the same day, he denied allegations that he was unfit; suggested that Mother also was of Indian heritage; and requested the case be dismissed, stayed, or transferred to the tribal court pursuant to ICWA.
Mother objected to the transfer request, denied any Indian heritage, and sought placement for adoption with her own family. She also sought a declaration that ICWA was inapplicable under the existing Indian family doctrine of Baby Boy L., 231 Kan. 199.
The Cherokee Nation filed a motion to intervene, arguing that ICWA applied. It also took issue with the sufficiency of its notice of the proceedings, an issue the tribe has now waived.
At the ensuing evidentiary hearing in district court, Mother testified that she was not a member of any tribe, that she had never lived on a reservation, and that she knew nothing of tribal customs. She also testified that Father never mentioned his ties to the Cherokee Nation and that she had never known he was a member of the tribe. According to Mother, Father never had contact with or provided any support for A.J.S. She also testified that she would revoke her consent to the adoption and raise A.J.S. by herself to prevent A.J.S. being raised by Father or the tribe. The evidence before the district judge also included printouts of information from Father’s MySpace web page in which he had listed his heritage as white/Caucasian.
The parties stipulated that A.J.S. qualified as an Indian child under ICWA’s definition. Nevertheless, the district judge ruled that ICWA was not applicable to this termination and adoption because A.J.S. had never been part of any Indian family relationship. Under these circumstances, the district judge also denied the Cherokee Nation’s motion to intervene and declined to modify the temporary custody order. Trial was set to determine whether Father’s parental rights should be severed, and permission was granted for this appeal.
Both parties suggest that this court should review the district judge’s refusal to apply ICWA for abuse of discretion. We disagree. The threshold question of whether ICWA applies to this proceeding raises a question of statutoiy interpretation or construction, i.e., a question of law over which this court exercises unlimited review. See Genesis Health Club, Inc. v. City of Wichita, 285 Kan. 1021, 1031, 181 P.3d 549 (2008). Likewise, the related question of whether the common-law precedent set by Baby Boy L., 231 Kan. 199, should stand also is a question of law for this court.
These proceedings were initiated under provisions of the Kansas Adoption and Relinquishment Act, K.S.A. 59-2111 et seq., governing relinquishment and adoption and the associated termination of the rights of natural parents. See K.S.A. 59-2136. As Father and the tribe point out, however, federal law preempts nonconforming or conflicting state law. United States Constitution, Art. VI, cl. 2; Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516-17, 120 L. Ed. 2d 407, 112 S. Ct. 2608 (1992). Any state sovereignty-based presumption against federal preemption is overcome by showing a Congressional intent to preempt. See, e.g., Medtronic v. Lohr, 518 U.S. 470, 485, 135 L. Ed. 2d 700, 116 S. Ct. 2240 (1996). By its terms, ICWA applies to any child custody proceeding, including a termination of parental rights proceeding and a foster care or adoptive placement proceeding, involving an Indian child. 25 U.S.C. § 1903(1)(i), (ii) (2000).
There is no dispute that A.J.S. is an Indian child within the meaning of ICWA, see 25 U.S.C. § 1903(4), or that this is a state court child custody proceeding, see 25 U.S.C. § 1903(l)(ii), (iv). Generally, when such a child is not domiciled or residing on a reservation and the child’s father objects to severance of his rights and the child’s adoption, the tribe is permitted to intervene in the proceeding. 25 U.S.C. § 1911(c); see, e.g., Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 36, 104 L. Ed. 2d 29, 109 S. Ct. 1597 (1989). Moreover, ICWA’s procedural and substantive provisions govern the case to avoid a risk of invalidation of its result. See, e.g., 25 U.S.C. § 1912 (2000) (notice); 25 U.S.C. § 1914 (2000) (invalidation); 25 U.S.C. § 1915 (2000) (placement preferences).
The parties appreciate that, to this point, Kansas has departed from the ICWA norm through the existing Indian family doctrine, adopted unanimously by this court in Baby Boy L., 231 Kan. 199. Since Baby Boy L. was decided in 1982, 4 years after enactment of ICWA, the doctrine has been consistently applied in Kansas. See In re Adoption of B.G.J., 281 Kan. 552, 133 P.3d 1 (2006) (declining to accept appellant’s invitation to reject existing Indian family doctrine; doctrine not implicated in appeal); In re M.B., 39 Kan. App. 2d 31, 176 P.3d 977 (2008) (holding existing Indian family doctrine precludes application of ICWA when Indian child’s parents have not maintained significant social, cultural, political relationship with tribe); In re J.J.G., 32 Kan. App. 2d 448, 83 P.3d 1264 (2004) (discussing existing Indian family doctrine). Thus the parties’ principal arguments focus on the logic and wisdom of the doctrine and the similarity or lack of similarity between the facts of this case and those before this court in Baby Boy L.
Baby Boy L. was bom to an unmarried, non-Indian woman, who gave consent for adoption by non-Indian appellees. The district judge granted temporary custody to the appellees, who later filed a petition for termination of the parental rights of Baby Boy L.’s natural father, C.P. C.P., who was incarcerated, contested the petition and sought denial of the adoption. The district court judge bifurcated the proceedings, dealing first with the termination action and then the adoption. The parties presented their evidence, and, before ruling, the judge learned that C.P. was an enrolled member of the Kiowa Tribe. The tribe was then notified. It sought intervention, invoked ICWA, requested that the proceeding be transferred to tribal court, and demanded Baby Boy L. be placed with C.P.’s parents and/or the tribe.
The district judge ruled that ICWA did not apply and he denied the tribe’s motion to intervene. The judge reasoned that ICWA was designed to prevent the unilateral break-up of Indian families. Baby Boy L. had never been, and, in the judge’s view, absent his mother’s consent, would never be part of an Indian family. The district judge terminated C.P.’s parental rights and granted the adoption.
C.P., his parents, and the Kiowa Tribe appealed, arguing that ICWA applied and that the tribe had a right to intervene and to petition the court for a change of jurisdiction and custody of Baby Boy L.
On appeal, this court focused on the language, history, and purpose of ICWA in order to determine whether Congress intended it to be applicable on these facts. The court concluded “that the ICWA, by its own terms, does not apply to these proceedings.” Baby Boy L., 231 Kan. at 207. Justice Richard W. Holmes wrote for fhe court:
“A careful study of tire legislative history behind the Act and the Act itself discloses that the overriding concern of Congress and the proponents of fhe Act was the maintenance of the family and tribal relationships existing in Indian homes and to set minimum standards for the removal of Indian children from their existing Indian environment. It was not to dictate that an illegitimate infant who has never been a member of an Indian home or culture, and probably never would be, should be removed from its primary cultural heritage and placed in an Indian environment over fhe express objections of its non-Indian mother. Section 1902 of the Act makes it clear that it is the declared policy of Congress that the Act is to adopt minimum federal standards ‘for the removal of Indian children from their [Indian] families.’ Numerous provisions of the Act support our conclusion that it was never the intent of Congress that the Act would apply to a factual situation such as is before the court.” Baby Boy L., 231 Kan. at 205-06.
The court noted that its position was not without criticism, from appellants as well as commentators, but suggested that, even if it had concluded ICWA applied, there would be no reversible error in Baby Boy L.’s situation because his mother’s consent to adoption was contingent on the appellees’ identity. She had made it clear that
“if this adoption was denied for any reason, or if an attempt was made to place the child for adoption under the terms of the Act, she would revoke her consent and again take custody of her child, and never consent to his placement with his father or with the father’s extended Indian family, tire Kiowa Tribe, the grandparents or anyone else.” Baby Boy L., 231 Kan. at 208.
This meant, the court said, that Baby Boy L. would be placed with a non-Indian family under either ICWA or Kansas law. Baby Boy L., 231 Kan. at 209.
Given its ruling on the inapplicability of ICWA, the court also saw no error in denial of the Kiowa Tribe’s motion to intervene. Baby Boy L., 231 Kan. at 209.
The validity of the existing Indian family doctrine has been called into repeated question by a variety of courts and commentators over the course of the 27 years since Baby Boy L. was decided. See, e.g., In re Baby Boy C. Jeffrey A., 27 App. Div. 3d 34, 46-47, 805 N.Y.S.2d 313 (2005); Atwood, Flashpoints Under the Indian Child Welfare Act: Toward a New Understanding of State Court Resistance, 51 Emory L.J. 587, 624-34 (2002); Prim, The Indian Child Welfare Act and the Existing Indian Family Exception: Rerouting the Trail of Tears?, 24 Law & Psychol. Rev. 115, 118-19 (2000).
Although the United States Supreme Court has not addressed the issue before us and has consistently denied review of cases dealing with the constitutionality of ICWA, its 1989 decision in Mississippi Band of Choctaw Indians v. Holyfield, underscored the central importance of the relationship between an Indian child and his or her tribe, independent of any parental relationship. Holyfield, 490 U.S. at 50.
In Holy field, the Court vacated an adoption decree entered under state law, holding that ICWA should have been applied to the proceedings when both unmarried parents were Indian, were domiciled on a reservation, and the mother had left the reservation to give birth to twins. The couple consented to the twins’ adoption under state law, and the adoption decree was final within a month of the twins’ birth. Holyfield, 490 U.S. at 37-38.
The tribe sought to invalidate the adoption, and, although the twins had been living with their adoptive parents for 3 years, the Supreme Court agreed that the proceedings were invalid, that ICWA should have governed, and that the tribe had the right to be involved in the proceeding. Although focused on whether “domicile” should be defined by state law or by ICWA for purposes of determining jurisdiction, rather than on the existing Indian family doctrine, it is significant that the Court relied extensively on testimony from Congressional hearings leading to the passage of ICWA and on ICWA’s explicit statement of Congress’ purpose:
“The Indian Child Welfare Act of 1978 (ICWA), 92 Stat. 3069, 25 U.S.C. §§ 1901-1963, was the product of rising concern in the mid-1970’s over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes. Senate oversight hearings in 1974 yielded numerous examples, statistical data, and expert testimony documenting what one witness called ‘[t]he wholesale removal of Indian children from their homes, . . . the most tragic aspect of Indian life today.’ Indian Child Welfare Program, Hearings before the Subcommittee on Indian Affairs of the Senate Committee on Interior and Insular Affairs, 93d Cong., 2d Sess., 3 (statement of William Blyer) (hereinafter 1974 Hearings). Studies undertaken by the Association on American Indian Affairs in 1969 and 1974, and presented in the Senate hearings, showed that 25 to 35% of all Indian children had been separated from their families and placed in adoptive families, foster care, or institutions. Id., at 15; see also H.R.Rep. No. 95-1386, p. 9 (1978) (hereinafter House Report), U.S. Code Cong. & Admin.News 1978, pp. 7530, 7531. Adoptive placements counted significantly in this total: in the State of Minnesota, for example, one in eight Indian children under the age of 18 was in an adoptive home, and during the year 1971-1972 nearly one in every four infants under one year of age was placed for adoption. The adoption rate of Indian children was eight times that of non-Indian children. Approximately 90% of the Indian placements were in non-Indian homes. 1974 Hearings, at 75-83. A number of witnesses also testified to the serious adjustment problems encountered by such children during adolescence, as well as the impact of the adoptions on Indian parents and the tribes themselves. See generally 1974 Hearings.
“Further hearings, covering much the same ground, were held during 1977 and 1978 on the bill that became the ICWA. While much of the testimony again focused on the harm to Indian parents and their children who were involuntarily separated by decisions of local welfare authorities, there was also considerable emphasis on the impact on the tribes themselves of the massive removal of their children. For example, Mr. Calvin Isaac, Tribal Chief of the Mississippi Band of Choctaw Indians and representative of the National Tribal Chairmen’s Association, testified as follows:
“ ‘Culturally, the chances of Indian survival are significantly reduced if our children, the only real means for the transmission of the tribal heritage, are to be raised in non-Indian homes and denied exposure to the ways of their People. Furthermore, these practices seriously undercut the tribes’ ability to continue as self-governing communities. Probably in no area is it more important that tribal sovereignty be respected than in an area as socially and culturally determinative as family relationships.’ 1978 Hearings, at 193.
“. . . . Chief Isaac also summarized succinctly what numerous witnesses saw as the principal reason for the high rates of removal of Indian children:
“ ‘One of the most serious failings of the present system is that Indian children are removed from the custody of their natural parents by nontribal government authorities who have no basis for intelligently evaluating the cultural and social premises underlying Indian home life and childrearing. Many of the individuals who decide the fate of our children are at best ignorant of our cultural values, and at worse contemptful of the Indian way and convinced that removal, usually to a non-Indian household or institution, can only benefit an Indian child.’ Id., at 191-92.
“The congressional findings that were incorporated into the ICWA reflect these sentiments. The Congress found:
(3) that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children . . .;
(4) that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and
(5) that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.
“The ICWA thus, in the words of the House Report accompanying it, ‘seeks to protect the rights of the Indian child as an Indian and the rights of the Indian community and tribe in retaining its children in its society.’ House Report, at 23, U.S. Code Cong. & Admin.News 1978, at 7546. It does so by establishing ‘a federal policy that, where possible, an Indian child should remain in the Indian community,’ and by making sure that Indian child welfare determinations are not based on ‘a white, middle-class standard which, in many cases, forecloses placement with [an] Indian family.’ Id. at 24, U.S. Code Cong. & Admin. News 1978 at 7546.” Holyfield, 490 U.S. at 32-37.
The Court’s result and rationale in Holyfield recognized that ICWA grew in part out of concern for preservation of tribal interests in Indian children and that those interests could not necessarily be defeated by the desires of parents or concerns over placement permanency.
The majority of our sister states that have considered the existing Indian family doctrine have rejected it. See In the Matter of the Adoption of T.N.F., 781 P.2d 973 (Alaska 1989); Michael J., Jr. v. Michael J., Sr., 198 Ariz. 154, 7 P.3d 960 (Ariz. App. 2000); In re N.B., 2007 WL 2493906 (Colo. App. 2007) (unpublished opinion); In re Baby Boy Doe, 123 Idaho 464, 849 P.2d 925 (1993); In re Adoption of S.S., 252 Ill. App. 3d 33, 42-43, 622 N.E.2d 832 (1993), revd on other grounds 167 Ill.2d 250, 657 N.E.2d 935 (1995); In re Elliot, 218 Mich. App. 196, 203, 554 N.W.2d 32 (1996); In the Matter of the Adoption of Riffle, 277 Mont. 388, 922 P.2d 510 (1996); Matter of Adoption of a Child of Indian Heritage, 111 N.J. 155, 543 A.2d 925 (1988); see also Kunesh, Borders Beyond Borders—Protecting Essential Tribal Relations Off Reservation Under the Indian Child Welfare Act, 42 New Eng. L. Rev. 15, 59 n.226, 227 (2007); In re Baby Boy C., 27 App. Div. 3d 34, 805 N.Y.S.2d 313 (2005); In re A.B., 663 N.W.2d 625 (N.D. 2003); Quinn v. Walters, 117 Or. App. 579, 583-84, 845 P.2d 206 (1993), revd on other grounds 320 Or. 233, 881 P.2d 795 (1994); State in Interest of D.A.C., 933 P.2d 993 (Utah App. 1997).
Other states, having once adopted the doctrine, have now abandoned it. See In the Matter of Baby Boy L., 103 P.3d 1099 (Okla. 2004) (holding the existing Indian family exception to application of Indian Child Welfare Act no longer viable, overruling prior state cases). Such changes of heart can be traced to changes in state law. See Wash. Rev. Code § 26.10.034(1) (2004); Wash. Rev. Code § 26.33.040(1) (2004); Adoption of Crews, 118 Wash. 2d 561, 825 P.2d 305 (1992); In re R.E.K.F., 698 N.W.2d 147, 151 (Iowa 2005); Okla. Stat. tit. 10, § 40.3 (2001). In South Dakota, the court merely recognized that the existing Indian family doctrine was inconsistent with ICWA’s motivating impulse and the United States Supreme Court’s decision in Holyfield. See Matter of Adoption of Baade, 462 N.W.2d 485, 489-90 (S.D. 1990).
California's courts are split on the viability of the existing Indian family doctrine. Compare In re Vincent M., 150 Cal. App. 4th 1247, 1265, 59 Cal. Rptr. 3d 321 (2007) (rejecting existing Indian family doctrine based on California statutory amendment); In re Bridget R., 41 Cal. App. 4th 1483, 49 Cal. Rptr. 2d 507 (1996) (upholding validity of doctrine on constitutional ground); Crystal R. v. Superior Court, 59 Cal. App. 4th 703, 69 Cal. Rptr. 2d 414 (1997) (accepting, applying doctrine).
The doctrine has been employed by a few of our sister states on facts such as those before us; rationales have included perceived Congressional intent and avoidance of constitutional infirmities in ICWA’s placement preferences. See In the Matter of Adoption of T.R.M., 525 N.E.2d 298, 303 (Ind. 1988); Rye v. Weasel, 934 S.W.2d 257 (Ky. 1996); Hampton v. J.A.L., 658 So. 2d 331 (La. App. 1995); C.E.H. v. L.M.W., 837 S.W.2d 947, 952 (Mo. App. 1992); In Interest of S.A.M., 703 S.W.2d 603 (Mo. App. 1986); see also S.A. v. E.J.P., 571 So. 2d. 1187 (Ala. Civ. App. 1990). Alabama has specifically limited application of the doctrine to facts similar to those here and in Ex parte C.L.J., 946 So. 2d 880 (Ala. Civ. App. 2006) (doctrine applies only if child illegitimate, never member of Indian family or culture, non-Indian mother rehnquishing child voluntarily).
We also note that there have been numerous amendments to and attempts to amend ICWA since its original enactment. On occasion, unsuccessful efforts have addressed the existing Indian family doctrine, but these efforts have been conflicting, directed at overruling it and endorsing it. Compare S. 1976, 100th Cong. (1987), and H.R. 3275, 104th Cong. (1996).
From this point in ICWA interpretation and the development of common law, we are persuaded that abandonment of the existing Indian family doctrine is the wisest future course. Although we do not lightly overrule precedent, neither are we inextricably bound by it. See Crist v. Hunan Palace, Inc., 277 Kan. 706, 715, 89 P.3d 573 (2004). Baby Boy L. is ready to be retired.
First, the existing family doctrine appears to be at odds with the clear language of ICWA, which makes no exception for children such as A.J.S. See 25 U.S.C. § 1903(4); Jaffke, The “Existing Indian Family” Exception to the Indian Child Welfare Act: The States’ Attempt to Slaughter Tribal Interests in Indian Children, 66 La. L. Rev. 733, 745-51 (2006).
Further, as recognized by the Holy field decision, 430 U.S. at 36-37, tribal interests in preservation of their most precious resource, their children, drove passage of ICWA; and its expressly declared policy is
“to protect die best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from dieir families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.” 25 U.S.C. § 1902.
As counsel for the Cherokee Nation emphasized at oral argument before us, a child removed now from the tribe cannot later be a voice for the tribe.
We also detect illogic in the Baby Boy L. opinion’s secondary justification for its result, also invoked by the district judge here, that the non-Indian mother’s refusal to consent to adoption of her infant by anyone other than the proposed non-Indian adoptive parents inevitably means a non-Indian upbringing for the child. In Baby Boy L., as here, the mother’s testimony was evidence of her intention only. That intention extends only as far as the mother’s unilateral control. If ICWA applies, a father’s fitness to parent and the child’s placement will not be governed solely by the mother’s expressed desires. The father and the tribe also will be heard, and ICWA’s preferences will apply in the absence of “good cause to the contrary.” 25 U.S.C. § 1915(a). Although the result reached may be the same as that dictated by the existing Indian family doctrine, it may not be. See Baby Boy C., 27 App. Div. 3d at 52-53; In re Alicia S., 65 Cal. App. 4th 79, 88-89, 76 Cal. Rptr. 2d 121 (1998). A.J.S.’s unmarried mother’s status as a non-Indian or another factor or set of factors may militate in favor of or against a certain ICWA preference or constitute “good cause” to ignore all of the preferences. We cannot know and neither could the members of this court who decided Baby Boy L. Simply put, an Indian family may yet be recognized or created if ICWA is not avoided through the existing Indian family doctrine.
We are also influenced by our sister states’ and commentators’ widespread and well-reasoned criticism of the doctrine. For example, in Baby Boy C., 27 App. Div. 3d 34, in which an unmarried Indian mother and non-Indian father attempted to relinquish their parental rights to facilitate their infant’s adoption by non-Indian parents, tire court convincingly detailed inconsistencies between the existing Indian family doctrine and the plain language of ICWA, as well as the doctrine’s deviation from ICWA’s core purpose of “preserving and protecting the interests of Indian tribes in their children.” 27 App. Div. 3d at 47. The court said:
“Because Congress has clearly delineated the nature of the relationship between an Indian child and tribe necessary to trigger application of the Act, judicial insertion of an additional criterion for applicability is plainly beyond the intent of Congress and must be rejected. . . .
“Another problem with the [doctrine] is that its acceptance would undermine the significant tribal interests recognized by the Supreme Court in Holyfield. The Supreme Court made it clear in Holyfield that Indian tribes have an interest in applying ICWA that is distinct from that of the child’s parents, and that such parents may not unilaterally defeat its application by deliberately avoiding any contact with the tribe or reservation (490 U.S. at 51-52). In many respects, that is what occurred in this case. By divorcing herself from tribal life and by putting her child up for adoption away from the reservation immediately after birth, [the mother] singlehandedly destroyed the notion of an ‘existing Indian family.’ If the [doctrine] were applied in this instance, [the mother] would have succeeded in nullifying ICWA’s puipose at the expense of the interests of the Tribe. However, as Holyfield recognized, Congress intended otherwise by specifically mandating that tribal interests be considered [‘protection of this tribal interest is at the core of the ICWA, which recognizes that the tribe has an interest in die child which is distinct from but on a parity with the interest of the parents’]; see also Matter of Baby Boy Doe, 123 Idaho [464, 470-71, 849 P.2d 925, 931-32 (1993)]; In re A.B., 663 N.W.2d [665, 636 (N.D. 2003)].
“Nor can we agree . . . daat relinquishing control over a child bom to parents uninvolved in Indian life costs the tribe nothing.’ [Citation omitted.] Where, as here, [the mother] has rejected Indian life and culture and then, voluntarily relinquished her newborn Indian child to be adopted by a non-Indian couple, the detriment to the Tribe is quite significant — the loss of two generations of Indian children instead of just one.
“The [doctrine] also conflicts with the Congressional policy underlying ICWA that certain child custody determinations be made in accordance with Indian cultural or community standards (see Holyfield, 490 U.S. at 34-35 [one of the most serious failings of the present system is that Indian children are removed from natural parents by nontribal governmental authorities who have no basis for intelligently evaluating the cultural and social premises underlying Indian home life and child rearing]; 25 U.S.C. § 1915[d] [applicable standards ‘shall be the prevailing social and cultural standards of the Indian community’]).
“The [doctrine] is clearly at odds with this policy because it requires state subjective factual determination as to the ‘Indianness’ of a particular Indian child or parent, a determination that state courts ‘are ill-equipped to make’ (In re Alicia S., 65 Cal. App. 4th at 90, 76 Cal. Rptr. 2d at 128). Since ICWA was passed, in part, to curtail state authorities from making child custody determinations based on misconceptions of Indian family life, the [doctrine], which necessitates such an inquiry, clearly frustrates this purpose (Holyfield [,490 U.S. at 34-35]; Quinn, [v. Walters, 117 Or. App. 579, 584 n.2, 845 P.2d 206 (1993)]; [State in Interest of D.A.C., 933 P.2d 993, 999 (Utah App. 1997)]).” Baby Boy C., 27 App. Div. 3d at 48-49.
See also Jaffke, 66 La. L. Rev. at 745-58; Atwood, 51 Emory L.J. at 625-42; Prim, 24 Law & Psychol. Rev. at 118-24; Graham, “The Past Never Vanishes”: A Contextual Critique of the Existing Indian Family Doctrine, 23 Am. Indian. L. Rev. 1, 34-43 (1998); Cross, The Existing Indian Family Exception: Is it Appropriate to Use a Judicially Created Exception to Render the Indian Child Welfare Act of 1978 Inapplicable? 26 Cap. U. L. Rev. 847, 864-90 (1998); Parnell, The Existing Indian Family Exception: Denying Tribal Rights Protected by the Indian Child Welfare Act, 34 San Diego L. Rev. 381, 397-401, 408-28 (1997); Davis, The Existing Indian Family Exception to the Indian Child Welfare Act, 69 N.D. L. Rev. 465, 475-96 (1993); Lehmann, The Indian Child Welfare Act of 1978: Does it Apply to the Adoption of an Illegitimate Child? 38 Cath. U. L. Rev. 511, 533-37 (1989).
Given all of the foregoing, we hereby overrule Baby Boy L., 231 Kan. 199, and abandon its existing Indian family doctrine. Indian heritage and the treatment of it has a unique history in United States law. A.J.S. has both Indian and non-Indian heritage, and courts are right to resist essentializing any ethnic or racial group. However, ICWA’s overall design, including its “good cause” threshold in 25 U.S.C. § 1915, ensures that all interests — those of both natural parents, the tribe, the child, and the prospective adoptive parents — are appropriately considered and safeguarded. ICWA applies to this state court child custody proceeding involving A.J.S., and the Cherokee Nation must be permitted to intervene. The contrary rulings of the district judge are reversed, and the case remanded for further proceedings consistent with this opinion.
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The opinion of the court was delivered by
Rosen, J.: Deandre Harris appeals from the denial of his motion filed under K.S.A. 60-1507 alleging ineffective assistance of trial counsel.
Harris and codefendant Code Laster were charged and jointly tried for the 1996 shooting death of Paul Moore. Each maintained his own and the other’s innocence, identifying a third person, an individual named Terrock, as the initiator and executor of the murder. Although no direct evidence conclusively showed that either Harris or Laster shot Moore, a considerable amount of evidence showed that Harris drove around with Laster looking for Moore and that both Harris and Laster ran from the scene of the murder shortly after shots were fired. A jury found Harris and Laster guilty of premeditated first-degree murder. On April 25, 1997, the trial court sentenced Harris to a life sentence without parole for 25 years. He took a direct appeal to this court, which affirmed the conviction in State v. Harris, 266 Kan. 270, 970 P.2d 519 (1998). The opinion contains a thorough and detailed account of the facts and evidence presented at trial.
On December 14, 1999, Harris filed a pro se motion under K.S.A. 60-1507 alleging ineffective assistance of trial counsel. On January 16, 2002, Harris filed through appointed counsel, Thomas DeCoursey, an amended motion elaborating further on his arguments. The district court held a full evidentiary hearing on the matter. DeCoursey represented Harris at the hearing, at which John Duma, Laster’s trial counsel, Al Graubereger, Harris’ trial counsel, and Harris each testified. On October 29, 2003, the trial court filed a memorandum opinion denying Harris’ claim. Harris filed a timely pro se notice of appeal. Then, on June 11, 2004, the trial court filed a second memorandum opinion, substantially the same as the earlier one, also denying Harris’ claim. Harris filed a second timely notice of appeal. Following the withdrawal of previously appointed appellate counsel, the trial court appointed B. Joyce Yeager to represent Harris on appeal on June 26, 2007.
This court granted Harris’ motion to transfer the appeal from the Court of Appeals to the Supreme Court. After filing her brief on behalf of Harris, Yeager filed a motion to withdraw, which this court granted. Christopher Cuevas was appointed to represent Harris, and Cuevas elected to proceed on the brief filed by Yeager.
Laster also filed a motion under K.S.A. 60-1507 alleging ineffective assistance of trial counsel. The trial court denied his motion, and the Court of Appeals affirmed the trial court in Laster v. State, No. 94,925, unpublished opinion filed July 14, 2006, rev. denied 282 Kan. 790 (2006).
A claim of ineffective assistance of counsel presents mixed questions of law and fact that are subject to de novo review. Pabst v. State, 287 Kan. 1, 16, 192 P.3d 630 (2008). In order to obtain reversal of a conviction based on ineffective assistance of trial counsel, it is insufficient to surmise, with the benefit of hindsight, that another attorney might have tried the case differently. The defendant must initially establish the counsel’s performance was constitutionally deficient, which requires showing that counsel made errors so serious that the performance was less than what the Sixth Amendment to the United States Constitution guarantees. The defendant must then establish that counsel’s deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious that they deprived the defendant of a fair trial. 287 Kan. at 16.
Judicial scrutiny of counsel’s performance must be highly deferential. There is a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. In order to show prejudice, a defendant must show a reasonable probability that, except for counsel’s deficient performance, the result of the trial would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court considering a claim of ineffective assistance of counsel must consider all the evidence before the judge or jury. Phillips v. State, 282 Kan. 154, 159-60, 144 P.3d 48 (2006).
Harris raises three issues in which he claims reversible error as a result of trial counsel’s ineffective assistance in the district court proceedings. First, Harris maintains that trial counsel was incompetent by failing to request a conspiracy jury instruction. At the preliminary hearing, charges of conspiracy to commit murder and possession of a firearm were dismissed. Harris nevertheless argues that his trial counsel was ineffective for not requesting a conspiracy instruction.
Conspiracy to commit murder is a separate and distinct crime from murder, not a lesser included offense. See, e.g., State v. Tyler, 251 Kan. 616, 637-388, 840 P.2d 413 (1992); State v. Adams, 223 Kan. 254, 256, 573 P.2d 604 (1997). A defendant may not be convicted of a crime with which he was not charged. See, e.g., State v. Schad, 247 Kan. 242, 246, 795 P.2d 406 (1990); State v. Houck, 240 Kan. 130, 136, 727 P.2d 460 (1986).
The trial court, having dismissed the conspiracy charge, could not then give the jury the opportunity to convict Harris of a crime with which he was not charged. If Harris’ trial counsel had requested a conspiracy instruction, the request would have been for an instruction not sanctioned by the law. Trial counsel was not ineffective for failing to request an improper instruction.
Next, Harris claims trial counsel was ineffective by failing to request separate trials. Although Harris and Laster had independent trial counsel, Harris argues that his attorney was not competent because he failed to file a motion to sever the trial.
A trial court should consider the following factors in determining whether separate trials are appropriate: (1) The defendants have antagonistic defenses; (2) important evidence in favor of one of the defendants which would be admissible on a separate trial would not be allowed in a joint trial; (3) evidence incompetent as to one defendant and introducible against another would have a prejudicial effect against the former with the jury; (4) the confession by one defendant, if introduced and proved, could foreseeably operate to prejudice the jury against the other; and (5) one defendant who could give evidence for the other defendant would become a competent and compellable witness at the separate trials of the other defendants. State v. Winston, 281 Kan. 1114, 1131, 135 P.3d 1072 (2006) (quoting State v. Butler, 257 Kan. 1043, 1063, 897 P.2d 1007 [1995]).
The facts do not support application of any of these factors. Harris and Laster presented mutually consistent defenses. There is no showing that evidence in favor of Harris was excluded because of the joint trial. There is no showing that evidence against Laster was presented that would have been excluded against Harris in a separate trial. There is no evidence of a confession by Laster that was prejudicial to Harris. Finally, there is no showing that either Harris or Laster could have been compelled to testify against the other.
Witnesses testified that Laster made a statement expressing his intention to kill Moore. It is unclear how that statement should have compelled separate trials. Both Harris and Laster maintained that they only were looking for Moore in the hope of locating Laster s stolen car. As an aider and abettor, the same testimony could have been presented in a separate trial of Harris.
Trial counsel was not ineffective for not requesting severance of the trial when the law did not support holding separate trials.
For his third and final issue, Harris argues that trial counsel was ineffective for fading to develop facts at the preliminary hearing that would have established a basis for a motion to dismiss. Harris mentions this as an issue in his statement of issues, but he does not address or argue the issue in the body of his brief. An issue not briefed by the appellant is deemed waived or abandoned. Cooke v. Gillespie, 285 Kan. 748, 758, 176 P.3d 144 (2008); State v. Walker, 283 Kan. 587, 594, 153 P.3d 1257 (2007).
The record contains no evidence that indicates Harris’ trial counsel committed errors of constitutional magnitude in planning and developing his trial strategy or in his conduct at the trial.
We affirm the district court’s finding that trial counsel was not ineffective. | [
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The opinion of the court was delivered by
Biles, J.:
This is an appeal from a district court’s decision on cross-motions for summary judgment in a contract case. The district court awarded liquidated damages against a construction company for failure to timely complete a municipal wastewater treatment facility. The issue is the extent to which liquidated damages are enforceable under the parties’ contract. The Court of Appeals affirmed the district court. This court granted the construction company’s petition for review. Our jurisdiction arises from K.S.A. 20-3018(b).
We affirm. In doing so, we explain below that the reasonableness of a liquidated damages clause in a contract deliberately entered into should be determined with regard to the conditions of the parties existing at the time the contract was executed, not from hindsight after the contract is breached. In addition, we reject the construction company’s argument that liquidated damages for completion delays cannot be assessed after the owner occupied the new facility.
Factual and Procedural Background
The material facts are not in dispute. Carrothers Construction Company, L.L.C., entered into a contract with the Ciiy of South Hutchinson to construct a $5,618,000 wastewater treatment facility to replace the City’s existing plant. The contract contained completion dates as well as a liquidated damages provision for delays in meeting the completion dates.
Carrothers has acknowledged it did not meet those bargained-for completion deadlines, and it conceded at oral argument an assessment for some liquidated damages under the contract is appropriate. Accordingly, the dispute before this court reduces itself down to deciding whether the district court was correct as to exactly how much the liquidated damages should be under the contract.
The provision labeled “Liquidated Damages” is found in the contract at Section 3.3 and is plainly identified. In it, Carrothers and the City agreed as follows:
“3.3 Liquidated Damages. OWNER and CONTRACTOR recognize that time is of the essence of this Agreement and that OWNER will suffer financial loss if the Work is not started and completed within the times specified in paragraphs 3.1 and 3.2 above, plus any extensions thereof allowed in accordance with Article 12 of the General Conditions. They also recognize the delays, expense and difficulties involved in proving the actual loss suffered by OWNER if the Work is not completed on time. Accordingly, instead of requiring any such proof, OWNER and CONTRACTOR agree that as liquidated damages for delay (but not as a penalty) CONTRACTOR shall pay OWNER Six Hundred DoEars ($600.00) for each day that expires after the time specified in paragraph 3.1 for the work to start, and Eight Hundred Fifty DoEars ($850.00) for each day that expires after the time specified in paragraph 3.2 for Substantial Completion until the Work is substantiaEy complete. After Substantial Completion, if CONTRACTOR shaE neglect, refuse or fail to complete the remaining Work within the time specified in paragraph 3.2 for completion and readiness for final payment or any proper extension thereof granted by OWNER, CONTRACTOR shall pay OWNER Eight Hundred Fifty Dollars ($850.00) for each day that expires after the time specified in paragraph 3.1 for completion and readiness for final payment.”
The standard general conditions of the construction contract (see Section 8.5 incorporating general conditions) define the term “Work” in Article 1 as follows:
“48. Work — The entire completed construction or the various separately identifiable parts thereof required to be provided under the Contract Documents. Work includes and is the result of performing or providing all labor, services, and documentation necessary to produce such construction, and furnishing, installing, and incorporating all materials and equipment into such construction, all as required by the Contract Documents.”
Article 1, entitled ‘Work,” further provides:
“The project for which the Work under the Contract Documents may be the whole or only a part is generally described as follows:
Construct wastewater treatment liquid process facilities to replace the existing liquid process facilities. Construct a maintenance building, site piping, other site utilities, site grading, and system controls. Drain, clean existing basins for future use and remove obsolete equipment. The capacity of the new process facilities will be 2 MGD. A new computer based control system for the improvements is included in the Work.”
The contract documents also define the term “Substantial Completion” as:
“43. Substantial Completion — The time at which the Work (or a specified part thereof) has progressed to the point where, in the opinion of ENGINEER, the Work (or a specified part thereof) is sufficiently complete, in accordance with the Contract Documents, so that the Work (or a specified part thereof) can be utilized for the purposes for which it is intended.”
The term “final completion” is not defined in the contract. But in describing how the contractor may apply for final payment under Section 14.07 A.I., the agreement provides:
“A. Application for Payment. 1. After CONTRACTOR has, in the opinion of ENGINEER, satisfactorily completed all corrections identified during the final inspection and has delivered, in accordance with the Contract Documents, all maintenance and operating instructions . . . CONTRACTOR may make application for final payment following the procedure for progress payments.”
The provisions recited above show at the time the contract was entered into by the parties, the City and Carrothers agreed: (1) Time was of the essence in completing the project; (2) actual damages would be difficult to ascertain, so the parties chose to use the liquidated damages provision if a breach occurred rather than requiring proof of actual damages; (3) the same per diem amount of liquidated damages applicable to a failure to achieve substantial completion would apply to a failure to achieve final completion; (4) the $850 per diem liquidated damages amount for failure to achieve either substantial or final completion was not a penalty; and (5) the project engineer’s opinion would be relied upon by both parties to determine whether the completion dates were met. The record reflects Carrothers had multiple opportunities to object to the liquidated damages provision during the bidding and contracting process, but it did not.
The engineer for this project was MKEC Engineering Consultants, Inc. (MKEC), which also assisted in drafting the contract. An MKEC employee, David Chase, performed the calculations for the liquidated damages provision. Lynn Moore, MKEC’s manager of environmental engineering, discussed those calculations with Chase and approved the liquidated damages provision. MKEC considered several factors in determining prospective liquidated damages caused by delay in the work completion including: (1) the City’s cost to monitor the project; (2) additional labor costs for city employees, environmental department staff, structural and electrical staff, and controls department staff; (3) additional utilities use; (4) costs to engage another consultant; (5) legal expenses; (6) equipment rental to address flow situations; (7) action by the Kansas Department of Health and Environment if the treatment plant failed to operate within permit limits at the time construction should be finished; and (8) other unknowns if the project was not timely completed. In addition, MKEC considered the project length, the estimated contract value, the general practices by MKEC, and the amounts agreed to between contractors and owners on other comparable projects.
Based on these considerations, MKEC recommended liquidated damages be set at $850 per day for failure to meet both the sub stantial completion deadline and the final completion deadline. Moore testified the same $850 per day liquidated damages amount for both substantial completion and final completion was appropriate because “all of the same potential risks were still in place with either completion date, and so it was appropriate to use the same number.” Both the City and Carrothers agreed to MKEC’s recommendation by accepting the contract.
Carrothers executed the contract with the City to construct the wastewater treatment facility for $5,618,000. On April 22, 2002, the City issued a notice to proceed with construction. The agreement provided the work, as defined in the contract, was to be substantially complete within 450 days after the notice to proceed and was to be complete and ready for final payment within 480 days after the notice to proceed. Accordingly, Carrothers was to reach substantial completion by July 15,2003, and final completion by August 14, 2003. Change orders issued during construction added 11 days to these deadlines, thus extending the substantial .completion date to July 26, 2003, and final completion to August 25, 2003. Carrothers acknowledges it failed to meet either deadline.
The City put the new plant into limited operation by November 10, 2003, and simultaneously shut down and stopped using the old wastewater treatment facility by that same date. There was no loss of water service when this simultaneous transition occurred from the old facility to the new facility. But the new facility was not completely operational by this date, and the computerized control system was not finished. These limitations required the City to operate the new facility manually and without all of the new safety features required by the contract.
At a progress meeting on December 8, 2003, the meeting minutes reflect the requirements for substantial completion were discussed. Carrothers was informed the project would be deemed to reach substantial completion “when the handrails and walkways are complete, both sides of the process basin are operational, and the control system is operational.” As project engineer, Moore followed up on December 11, 2003, with a letter to Carrothers itemizing the tasks to be completed to attain substantial completion.
MKEC issued the substantial completion certificate on January 12, 2004, when the control system and the safety features were fully installed. The next day, Carrothers delivered the operating manuals for the computerized control system. MKEC determined final completion was reached on January 13, 2004, when those manuals were provided to the City.
Carrothers subsequently submitted a final payment application for the project. MKEC recommended the City withhold $145,350 in liquidated damages. This amount was based on the 170 days between July 26, 2003, which was the revised substantial completion deadline, and January 12, 2004, which was the date when MKEC determined Carrothers reached substantial completion. There was 1 additional day until the project was finally completed on January 13, 2004. Multiplying these 171 days by $850 per day equals $145,350. The City accepted MKEC’s recommendation and withheld the liquidated damages. Carrothers objected and demanded full payment.
The dispute over liquidated damages was not resolved, so Carrothers filed suit to recover the withholding. Carrothers alleged the City breached its contract by refusing full payment. Carrothers also sought a declaratory judgment concerning the enforceability and reasonableness of the liquidated damage provision. The City filed a counterclaim and alleged Carrothers breached the contract by failing to timely complete the project.
After the parties engaged in discovery, the City filed a motion for summary judgment, arguing Carrothers could not sustain its burden to prove the liquidated damages clause constituted an unenforceable penalty. Carrothers filed a cross-motion for summary judgment, arguing the liquidated damages provision was a penalty and had no relation to the actual damages suffered. The district court granted summary judgment in the City’s favor, finding the contract was unambiguous and the liquidated damages amount reasonable in relation to the potential injuries from delays in completing the wastewater treatment facility. After unsuccessfully moving to have the district court reconsider its ruling, Carrothers timely appealed.
The Court of Appeals affirmed the district court, concluding the district court did not err in granting summaiy judgment to the City. Carrothers Constr. Co. v. City of South Hutchinson, 39 Kan. App. 2d 703, 184 P.3d 943 (2008). In doing so, and as will be discussed further below, the panel recognized that prior Court of Appeals decisions suggest liquidated damage clauses should be analyzed both from a prospective viewpoint based on the parties’ circumstances at the time of contracting, as well as retrospectively after the breach to determine whether the liquidated damages bear some reasonable relationship to the actual injury caused by the breach. 39 Kan. App. 2d at 712-13 (“[T]his court has recognized that a retrospective analysis of a liquidated damages clause is also appropriate.”).
Carrothers filed a petition for review, which this court granted. Carrothers now argues both the district court and the Court of Appeals erred as a matter of law because: (1) The contract terms actually define substantial completion as the date when the City took over the new facility, put it into operation, shut down the old facility, and effectively gained the beneficial use of the new facility; (2) the liquidated damages provision is unreasonable and constitutes a penalty because it bears no reasonable relationship to the actual injuiy caused by Carrothers’ breach after the date the City gained beneficial use from the facility; (3) the $850 per diem amount applied to delays in achieving final completion is unreasonable as a matter of law because it is the same amount applicable for delays in achieving substantial completion; and (4) the City has waived its right to receive liquidated damages as a matter of law after it occupied and began using the new facility.
Standard of Review
The standard for reviewing a district court’s decision granting summaiy judgment is well known: 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.” Miller v. Westport Ins. Corp., 288 Kan. 27, Syl. ¶ 1, 200 P.3d 419 (2009).
“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
To the extent there is no factual dispute, appellate review of an order granting summary judgment is unlimited. Polson v. Farmers Ins. Co., 288 Kan. 165, Syl. ¶ 1, 200 P.3d 1266 (2009).
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). The primary rule for interpreting written contracts is to ascertain the parties’ intent. If the terms of the contract are clear, the intent of the parties is to be determined from the contract language without applying rules of construction. Anderson v. Dillard’s, Inc., 283 Kan. 432, 436, 153 P.3d 550 (2007). Interpreting a written contract that is free from ambiguity is a judicial function and does not require oral testimony to determine the contract’s meaning. Ambiguity in a contract does not appear until two or more meanings can be construed from the contract provisions. Gore v. Beren, 254 Kan. 418, 426-27, 867 P.2d 330 (1994).
Finally, this case requires us to examine the propriety of liquidated damages. The Court of Appeals has previously determined this is a question of law that an appellate court reviews de novo. IPC Retail Properties v. Oriental Gardens, Inc., 32 Kan. App. 2d 554, 561, 86 P.3d 543 (2004); Luminous Neon, Inc. v. Parscale, 17 Kan. App. 2d 241, 242, 836 P.2d 1201 (1992); Kvassay v. Murray, 15 Kan. App. 2d 426, Syl. ¶ 1, 808 P.2d 896, rev. denied, 248 Kan. 996 (1991). We agree.
When Did Carrothers Achieve Substantial Completion?
Carrothers’ first argument is that the district court erred in awarding the City liquidated damages by using a substantial completion date of January 12, 2004. Carrothers asserts it really achieved substantial completion, as that term is defined under the contract documents, by November 3, 2003, when the construction project progressed to the point where the City was able to occupy the new facility, shut down the old treatment plant, and simultaneously transition the City’s water service using the new facility.
In making this argument, Carrothers acknowledges it did not achieve substantial completion by the contractually required date of July 26, 2003. At oral argument, Carrothers’ counsel conceded the contractor owes liquidated damages at the $850 per diem amount specified in the parties’ agreement for the period of time between July 26, 2003 and November 3, 2003, when, Carrothers says, the new plant began operations. We note an immaterial factual discrepancy between the parties as to whether the plant began these limited operations on November 3, as claimed by Carrothers, or November 10, as testified to by Moore, the project engineer. But it is sufficient here to note this entire controversy reduces itself down rather quickly from a $145,350 assessment to approximately $61,500 based on Carrothers’ admissions.
With this acknowledgment, Carrothers argues that under the contract documents as written, it achieved substantial completion by November 3, 2003. Quoting from a selected portion of the contract’s definition of “substantial completion,” Carrothers says it was in November 2003 that “the Work (or a specified part thereof)” actually was being used “for the purposes for which it is intended.” Carrothers argues the Ciiy began using the new facility in November 2003 “for the purposes for which it is intended” because the City shut down the old facility and switched its operations to the new plant, even though the City had to operate the facility manually and did not have in operation the computer-based control system specified in the contract.
We reject Carrothers’ contention. To make its argument, Carrothers ignores the language, taken as a whole, of the plain and unambiguous agreement between these parties. As quoted above, this contract expressly states: “A new computer based control system for the improvements is included in the Work.” To accept Carrothers’ interpretation would require us to overlook the undisputed fact that the computerized control system was not operational until January 12, 2004. This asks too much, given the agreement between the parties and its clear expression of the parties’ intent as to what performance was required to substantially complete tire work.
In addition, Carrothers would have us give no meaning to the specific provision adopted by both parties that delegated to their project engineer the task of determining when the work would be deemed “sufficiently complete in accordance with the Contract Documents” that it could be “utilized for the purposes for which it is intended.” When the contracting parties clearly intended to make such a delegation, this court should respect those wishes absent a showing the engineer acted in bad faith when making this determination.
No evidence exists in this record that the project engineer was acting in bad faith. MKEC determined Carrothers did not substantially complete the project until January 12,2004, because that was the date when Carrothers finished its work on the control system and other safety features. MKEC’s determination is consistent with the plain language contained within the contract documents and the undisputed facts set out in the parties’ cross-motions for summary judgment. Since Cai'rothers was willing to accept the project engineer’s determination as to completion dates when it initially contracted with the City, this court sees no reason now, and on the basis of this record, how it can contractually reject those determinations.
In summary, we find the district court and Court of Appeals did not err in determining July 26, 2003, was the date Carrothers was contractually required to substantially complete the project. In addition, we find the district court and Court of Appeals correctly determined January 12, 2004, was the date when substantial completion actually was achieved based on the undisputed facts in this case and the plain and unambiguous language in the agreement. Accordingly, it was not error to find Carrothers was 170 days late in substantially completing this project pursuant to these contract terms.
Is the liquidated damages clause really a penalty?
Next, Carrothers argues the liquidated damages clause is unreasonable and constitutes a penalty because the contractually speci fied damages bear no reasonable relationship to the actual injuiy suffered by the City after it occupied the new plant and switched over its municipal services from the old plant. Carrothers’ argument focuses entirely on the time period after, it claims, the City obtained beneficial use from the new facility in November 2003.
Carrothers contends Kansas law imposes a “two hurdle” test for enforceability of a liquidated damages provision. Such a provision is invalid, Carrothers asserts, unless it is both: (1) a reasonable prospective estimate of damages for the breach of contract; and (2) reasonable considering, retrospectively, the damages actually incurred. Carrothers argues that once the City started using the new wastewater treatment plant, the contractually stated liquidated damages necessarily became a penalty under the second prong of its proposed test because the City was suffering no actual harm after this transition.
We disagree and hold the retrospective analysis is unnecessary in determining whether a liquidated damages clause is a penalty. The better test, we believe, is to determine the reasonableness of a liquidated damages clause as of the time the contract was executed, not with the benefit of hindsight. As noted previously by this court, a liquidated damages clause in a contract is an advance settlement of the anticipated actual damages arising from a future breach. Railroad Co. v. Gaba, 78 Kan. 432, 435-436, 97 Pac. 435 (1908). Such provisions allow contracting parties to protect themselves against the difficulty, uncertainty, and expenses that necessarily follow judicial proceedings when trying to ascertain actual damages. Oriental Gardens, 32 Kan. App. 2d at 563. Given this desirable goal, it is well established that parties may stipulate at the time of contracting to a set damages amount for a breach of that contract, as long as the liquidated damages provision is not a penalty. See White Lakes Shopping Center, Inc. v. Jefferson Standard Life Ins. Co., 208 Kan. 121, 126-128, 490 P.2d 609 (1971); Beck v. Megli, 153 Kan. 721, 726, 114 P.2d 305 (1941); Gregory v. Nelson, 147 Kan. 682, Syl., 78 P.2d 889 (1938); Gaba, 78 Kan. at 435-36.
The distinction between a contractual penalty and a provision for liquidated damages is that a penalty, in effect, is a security for performance, while a provision for liquidated damages requires a sum certain to be paid in lieu of performance. Erickson v. O’Leary, 127 Kan. 12, 14, 273 Pac. 414 (1929). In considering the issue, this court previously stated:
“In determining whether contractual agreements are to be treated as penalties or as liquidated damages, courts look behind the words used by the contracting parties to the facts and the nature of the transaction. The use of the terms ‘penalty’ or ‘liquidated damages’ in the instrument is of evidentiary value only. It is given weight and is ordinarily accepted as controlling unless the facts and circumstances impel a contrary holding. [Citations omitted.] The instrument must be considered as a whole, and the situation of the parties, the nature of the subject matter and the circumstances surrounding its execution taken into account. There are two considerations which are given special weight in support of a holding that a contractual provision is for liquidated damages rather than a penalty — the first is that the amount stipulated is conscionable, that it is reasonable in view of the value of the subject matter of the contract and of the probable or presumptive loss in case of breach; and the second is that the nature of the transaction is such that the amount of actual damages resulting from default would not be easily and readily determinable. [Citations omitted.]” Beck, 153 Kan. at 726.
In TMG Life Ins. Co. v. Ashner, 21 Kan. App. 2d 234, 250, 898 P.2d 1145 (1995), the Court of Appeals ruled the burden of proving a liquidated damages clause is an unenforceable penalty falls on the party challenging the provision. See Oriental Gardens, 32 Kan. App. 2d at 561. We agree. By placing the burden of proof on the party challenging a liquidated damages clause, we promote a public policy favoring settlement and avoidance of litigation, and .allowing parties to make, and live by, their own contracts. See White Lakes Shopping Center, 208 Kan. at 126-28; Anderson v. Rexroad, 180 Kan. 505, 511-15, 306 P.2d 137 (1957).
In addressing these two considerations (reasonableness and difficulty of ascertaining actual damages), the Court of Appeals noted the first factor was resolved in the City’s favor as follows:
“Here, the subject matter of the contract was the construction of a new public wastewater treatment facility for over $5,600,000. As the City points out, the total liquidated damages of $145,350 for a nearly 6-month delay is less than 3% of the total contract amount. The probable or presumptive loss in case of delay included the City’s cost to monitor the project, additional labor costs, additional use of utilities, the cost of engaging another consultant, legal expenses, equipment rental to address flow situations, possible action by the KDHE, and other unknowns in the event the project was not completed on time. MKEC anticipated having an engineer’s representative on site daily if the facility was not completed on time, as well as additional environmental department staff, structural and electrical staff, and controls department staff. In light of these potential actual expenses, the amount set forth in the contract of $850 per day is reasonable when viewed prospectively.” Carrothers, 39 Kan. App. 2d at 713.
As to the second consideration, the Court of Appeals stated the following in deciding the amount of actual damages from a default would not be easily and readily determinable:
“Here, Moore stated in his deposition that MKEC always includes a liquidated damages clause in its public works contracts because it is difficult to determine what damages would be incurred and it could be costly to prove those damages in court. The district court noted the complexity of the project and its attendant risks of harm and damages. As demonstrated by the many factors MKEC considered in determining the appropriate amount of liquidated damages, the actual damages would have been difficult to calculate at the time the parties entered into the contract. Therefore, this second factor also favors enforceability of the liquidated damages provision.” 39 Kan. App. 2d at 714.
We agree with the Court of Appeals’ analysis as to these two considerations. It is clear from the facts the project engineer attempted as a part of the contract drafting process to calculate estimated damages if there were a breach. It also is clear a project with this level of complexity would present significant difficulties in trying to calculate actual damages. Under these circumstances, the parties legitimately could agree in the interests of necessity, economy, and convenience to set the damages level in advance, which is what they did.
We would supplement these points only by emphasizing that we are dealing here with a contract for the construction of public utility service facilities. It is uniquely difficult to calculate damages to the general public interest caused by a contractor’s breach of its agreement to provide public improvements. This should be an important consideration in such cases and weigh favorably in finding a liquidated damages provision to be reasonable. Kansas has long recognized the protection of the public interest is a proper consideration in determining validity of a liquidated damages provision. Kansas City v. Industrial Gas Co., 138 Kan. 755, 762-63, 28 P.2d 968 (1934); U.S.D. No. 315 v. DeWerff, 6 Kan. App. 2d 77, Syl. ¶ 3, 626 P.2d 1206 (1981).
But Carrothers promotes an additional retrospective analysis by which to judge the reasonableness of this liquidated damages provision. Under this approach, Carrothers argues, a court must determine what actual damages resulted from its failure to achieve the required completion dates, and then compare those actual damages to the liquidated damages calculations set out in the contract. We note that courts are divided in the approaches employed to determine this issue. See Kelly v. Marx, 694 N.E.2d 869, 873-74 (Mass. App. 1998), surveying state by state the applicable liquidated damages rules in place at that time.
In support of its position, Carrothers claims the Tenth Circuit Court of Appeals recently found Kansas law applies this additional retrospective test, citing Hutton Contracting Co. v. City of Coffeyville, 487 F.3d 772 (10th Cir. 2007). Carrothers is wrong in making this claim. The Hutton court expressly did not adopt the retrospective test. Instead, the court indicated Kansas courts have not definitely answered the question whether enforceability of a liquidated damages provision should be determined prospectively only or whether Kansas courts would also apply a retrospective analysis. 487 F.3d at 781 (“[O]ur review of Kansas cases finds no definitive discussion of whether Kansas courts would apply a supplemental retrospective analysis.”).
To that end, our decision in this case is intended to lay aside any further doubt and embrace a prospective analysis as the sole basis for evaluating a liquidated damages provision in a contract. To the extent any prior decisions of our Court of Appeals have contributed to that doubt by adding a retrospective test in their determination of this issue, they are overruled as to this limited point. See Carrothers, 39 Kan. App. 2d at 712-13; Oriental Gardens, 32 Kan. App. 2d at 564; Luminous Neon, 17 Kan. App. 2d at 243.
The prospective approach is particularly appropriate in circumstances such as those presented here, when an evaluation was made prior to contract formation as to the probable loss resulting from delay, the parties’ clear intent to use liquidated damages as the contractual vehicle in case of a delay because actual damages would be difficult to ascertain, and the parties’ agreement as to a per diem amount for delays, which then set the parties’ respective risks. To impose the “two hurdle” test advocated by Carrothers would deny the parties’ obvious intent and deny the City the benefit of its bargain. If the amount of actual damages is made an issue in the enforcement of every contract with a liquidated damages provision, the very purpose of the agreement is undermined. As noted in the Restatement (Second) of Contracts § 356, comment A, p. 157 (1979): “The enforcement of such provisions for liquidated damages saves the time of courts, juries, parties and witnesses and reduces the expense of litigation.”
Here, the parties intended to avoid such expense and uncertainty if a delay occurred. Their intent should be respected. We affirm the findings by the Court of Appeals and district court that the liquidated damages clause did not constitute a penalty.
Is the $850 per diem reasonable for delays in final completion P
Next, Carrothers argues the contract’s liquidated damages clause is unreasonable as a matter of law because the $850 per diem amount that is applicable to delays in achieving final completion is the same for delays in achieving substantial completion. In support of its contention, Carrothers cites DeWerff, 6 Kan. App. 2d at 80 (A lack of calculation as to actual damages is assumed when the stipulated damages amount is the same for a total or partial breach or for minor or major contract provisions.), and Oriental Gardens, 32 Kan. App. 2d at 562 (An accelerated rent provision was unenforceable because it applied to all breaches of contract, however major or minor, and it had no reasonable relationship to actual injury.).
But as discussed above, Carrothers’ argument applies the wrong legal test to these facts. Here, the contract language clearly expressed the parties’ intent that liquidated damages continue past substantial completion and delegated to die project engineer the task of determining when final payment was authorized. Further, the project engineer testified the damages incurred for a delay in substantial completion compared on a prospective basis at the time of contracting with the damages for a delay in final completion. Indeed, he testified there was really no difference in the risk to the City between a late substantial completion date and a final completion date.
Whether it was reasonable to use the same $850 per diem amount for delays in final completion as was being used for substantial completion is to be determined using the prospective analysis, discussed above, based on the conditions of the parties when the contract was formed. Accordingly, it is not relevant that the final completion delay damages, which amounted to a single day s assessment of $850, resulted from Carrothers failure to simply deliver the operating manuals. The test for this contractual provision s reasonableness is whether: (1) at the time of contracting it would appear conscionable to assess $850 per day in liquidated damages for the period of time between substantial and final completion in view of the value of the contract and tire probable or presumptive loss in case of a breach; and (2) actual damages for that time period would be difficult to calculate.
In reviewing the summary judgment record, tire district court noted that had the City’s old treatment facility failed prior to final completion, “the danger posed to citizenry would have been incalculable.” Given the public service nature of this project, the parties’ clear intent to make liquidated damages applicable to this particular time period, and the project engineer’s evaluation of the parties’ relative risks when viewed at the time of contracting, we agree with the Court of Appeals and the district court that the $850 per diem assessment for the 1-day delay in achieving final completion was reasonable under the circumstances.
Did the City waive its right to further liquidated damages by occupying the facility?
Finally, Carrothers contends as a matter of law that the City waived its right under the contract to continue with liquidated damages after the City elected to occupy the new facility and began using it. As to this argument, Carrothers would have us rewrite the parties’ contract as an operation of law and reheve Carrothers from the consequences imposed by the plain and unambiguous language in its contract. We decline to do so.
In support of its argument, Carrothers cites this court to no Kansas cases applying the legal principle it is espousing, and we are aware of none. Instead, Carrothers refers us to opinions in other states such as Stone v. City of Arcola, 181 Ill. App. 3d 513, 536 N.E.2d 1329 (1989); Perini Corp. v. Greate Bay Hotel & Casino, Inc., 129 N.J. 479, 610 A.2d 364 (1992); Page v. Travis-Williamson County Water C. & I. Dist., 367 S.W.2d 307 (Tex. 1963); and S.L. Rowland Constr. Co. v. Beall Pipe and Tank Corp., 14 Wash. App. 297, 540 P.2d 912 (1975). In sum, these cases hold that when a contractor achieves substantial completion and has only minor repairs, adjustments, or finishing work remaining, the full assessment of liquidated damages may constitute gross unfairness.
But these decisions do not apply to the undisputed facts in this case. Here, Carrothers would seek to invoke these decisions from other jurisdictions to block liquidated damages after November 3, 2003, when it says the City began using the new treatment facility. But the new facility still did not have in operational condition the computer-based control system and other significant installations, including many safety features, expressly required by the contract. These shortcomings may not be described fairly as trivial or relegated to a characterization of mere finishing work. They were substantial obligations under the contract agreed to by the parties.
Accepting Carrothers’ argument in this instance would defeat the express language in the contract, the parties’ clear intent as shown by that language, and the important public policy considerations favoring liquidated damages clauses. We decline to adopt a rule that operates solely to invalidate liquidated damages clauses that were freely entered into just because damages would be applicable after occupancy. We believe the better rule is to require a liquidated damages clause applicable to a delay in achieving final completion to withstand the prospective analysis described in this opinion.
We affirm the district court and the Court of Appeals for the reasons stated. | [
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The opinion of the court was delivered by
NUSS, J.:
Following this court’s affirmance of Reginald Pennington’s conviction for second-degree murder, he filed a motion for correction of an illegal sentence pursuant to K.S.A. 22-3504. The district court summarily denied the motion, and Pennington appeals. This court has jurisdiction because second-degree murder was an off-grid felony at the time the crime was committed. See K.S.A. 2243601(b)(1); State v. Thomas, 239 Kan. 457, Syl. ¶ 2, 720 P.2d 1059 (1986) (jurisdiction over appeal of a motion to correct an illegal sentence lies with court that had jurisdiction to hear original appeal).
We affirm.
FACTS
An Information charging Reginald Pennington with second-degree murder was filed in January 1997. After a prehminary hearing, the trial court bound him over and arraigned him, but for the lesser included offense of voluntary manslaughter.
Approximately 2 weeks later the State filed an amended information, again charging Pennington with second-degree murder. The State requested that the trial court reconsider its decision and simply “introduce[d] by stipulation two exhibits,” i.e., Penningon’s statement to the police and the autopsy report. No additional preliminary hearing was held.
That April, the trial court issued a memorandum decision finding probable cause to charge Pennington with second-degree murder. According to the decision, Pennington was bound over and “consistent with earlier statements by counsel” a formal plea of not guilty was entered on Pennington’s behalf.
After a September 1997 jury trial, Pennington was convicted of second-degree murder and sentenced to life imprisonment with parole eligibility after 10 years. His conviction was affirmed by this court in State v. Pennington, No. 81,604, unpublished opinion filed March 10, 2000.
In January 2005, Pennington filed a motion to correct an illegal sentence under K.S.A. 22-3504, claiming several pretrial defects. He essentially argued that the prosecutor had committed misconduct by twice charging second-degree murder. Pennington also claimed that the State had not followed the correct procedure because it did not appeal the trial court’s initial refusal to bind him over on second-degree murder, nor did it dismiss and then refile the charge.
Without a hearing or appointing counsel for Pennington, the district court denied the motion. Among other things, it held that there were no defects in the signing and execution of the information and that even if so, they did not deprive the trial court of jurisdiction to convict and to sentence Pennington.
ANALYSIS
Issue: The district court did not err in summarily denying Penningtons motion.
Pennington claims the district court erred in denying him a full evidentiary hearing and appointment of counsel, as well as in ultimately denying his motion for correcting an illegal sentence.
We first acknowledge that K.S.A. 22-3504 does not automatically require a full hearing, or appointment of counsel, upon the filing of a motion to correct an illegal sentence. The district court first makes a preliminary examination of the motion. Based upon that examination, the motion can be denied “ ‘without a hearing or appointment of counsel if the district court determines the motion, files, and records of the case conclusively show the defendant is not entitled to relief.’ ” State v. Howard, 287 Kan. 686, 690, 198 P.3d 146 (2008) (quoting State v. Hoge, 283 Kan. 219, 224, 150 P.3d 905 [2007]).
Here, the district court summarily denied Pennington’s motion, determining that the motion did not present a substantial question of law or triable issue of fact. Under such circumstances, our review is de novo. Howard, 287 Kan. at 691. Like the district court, we must determine whether Pennington’s motion, records, and files conclusively show that he is entitled to no relief. See 287 Kan. at 691.
We next observe that K.S.A. 22-3504 only applies if a sentence is illegal. State v. Deal, 286 Kan. 528, 529, 186 P.3d 735 (2008). Whether a sentence is illegal is a question of law over which this court has unlimited review. 286 Kan. at 529. We have defined an illegal sentence under the statute as “ ‘a sentence imposed by a court without jurisdiction, a sentence which does not conform to the statutory provision, either in the character or the term of the punishment authorized, or a sentence which is ambiguous with respect to the time and manner in which it is to be served.’ ” 286 Kan. at 529-30.
Pennington relies on the first basis, i.e., that he was sentenced by a court without jurisdiction. Specifically, he again argues that the State failed to follow the correct procedure because it did not appeal the trial court’s ruling refusing to bind him over on second-degree murder or dismiss and then refile the original charges. Pennington also argues that he was given neither a new prehminary hearing nor a new arraignment for the amended information. While the State presents a multitude of arguments for why Pennington should lose, we need look no further than State v. Smith, 225 Kan. 796, 594 P.2d 218 (1979), which is clearly dispositive in the State’s favor.
In Smith, this court expressly rejected several of the same arguments which Pennington makes here. There, after preliminary hearing, defendant was bound over for trial on the State’s charge of premeditated murder. Three days before trial, the State was allowed to amend the information to charge felony murder. Defendant conceded that the amendment did not change the original crime charged. However, he contended “he was confronted with an entirely different set of facts to defend.” 225 Kan. at 798.
The Smith court began its analysis by acknowledging the wide discretion given the State in amending an information under K.S.A. 22-3201:
“As a general rule prior to the commencement of the trial the prosecutor should be given wide discretion in amending the original information. A trial court may allow an amendment to an information in its discretion both as to form and Substance after arraignment and plea before commencement of the trial. [Citation omitted.] The inquiry under the statute is whether or not the circumstances of each case reflect prejudice to the defendant. Where the record fails to establish prejudice to the defendant’s substantial rights, amendment any time before the verdict is proper. [Citations omitted.]” 225 Kan. at 798.
The court rejected the defendant’s complaint that he was prejudiced by his failure to receive a new prehminary hearing on the amended information, holding that he had waived his right to make such a claim:
“[T]he right to a prehminary examination is purely statutory. It is not mandated either by general constitutional privileges or the requirement of constitutional due process. [Citation omitted.] . . . The sufficiency of the prehminary examination must be challenged by a motion to dismiss under K.S.A. 22-3208. Failure to raise the question by such a motion constitutes a waiver and precludes review on appeal. [Citations omitted.]” (Emphasis added.) 225 Kan. at 798.
The Smith court then rejected the related issue that defendant also had not been afforded a new formal arraignment on the amended information. It held that this right to object had also been waived: “[O]bjection to formal arraignment is waived when a defendant goes to trial without objection and submits the question of his guilt to the jury. [Citation omitted.]” (Emphasis added.) 225 Kan. at 799.
As a result of defendant’s waiver, the Smith court concluded that “no error occurred” when the State was allowed to amend the Information to felony murder. 225 Kan. at 799. Similarly, there is no error in the instant case.
Smith establishes that there can be no appealable error for a failure to have new preliminary hearings and new arraignments on an amended Information when defendant has failed to timely object. Here, there were no timely objections. Moreover, Smith establishes that even timely objections must be coupled with actual prejudice to the defendant’s rights. Pennington has not articulated any particular prejudice, much less shown any. These failures likewise bar Pennington’s arguments that the Information was amended without the State appealing the trial court’s initial refusal to bind him over on second-degree murder or without dismissing and then refiling the original charges.
Based upon this Kansas case law, our de novo review requires us to conclude that the district court did not err in summarily denying Pennington’s motion. His motion, files, and records of the case conclusively show that he was entitled to no relief.
Affirmed.
McFarland, C.J., not participating.
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|
The opinion of the court was delivered by
Luckert, J.:
This appeal raises the question of whether a claim must be made against a decedent’s estate when it is alleged the decedent breached a contract to place his entire estate in a testa mentary trust for the benefit of his adult children. The district court and the Court of Appeals in Nelson v. Nelson, 38 Kan. App. 2d 64, 162 P.3d 43 (2007), held the decedent’s assets were not subject to a constructive trust because a claim had not been made against the decedent’s estate within the period of limitations imposed by the Kansas nonclaim statute, K.S.A. 59-2239. Upon review of those decisions, we affirm.
Background
Albert H. Nelson, III, and Markeyta Nelson Dewey (Appellants) are the adult children of Margaret Nelson and Albert H. Nelson, II (Albert). After 33 years of marriage, Margaret and Albert divorced in 1975. Paragraph 9 of their property settlement agreement provided:
“Husband further covenants and agrees with Wife that Husband will execute and maintain, in full force and effect, a Will creating a testamentary trust to be funded by and with Husband’s entire estate. Said trust will provide that the two (2) children of the parties hereto shall receive one-half (Vz) of the income from the trust after deduction of all taxes, debts, costs and expenses of administration; provided, however, that upon the death of either such child, said child’s share of income shall be paid to the surviving child; provided, further, that the remaining debt, if any, of Husband to Wife under paragraph 2 hereof shall be deducted from the amount otherwise distributable to said children or child from said trust. The payments to said children or child shall be made not less often than annually.”
The property settlement agreement was approved by the district court and incorporated by reference as part of the journal entry and decree of divorce. There is, therefore, no dispute about the existence of the contract. Rather the parties argue over the meaning of the term “entire estate.” The Appellees suggest the agreement relates to probate assets only, and the Appellants suggest the parties intended to include probate and nonprobate assets. The Appellants contend their father violated the clear meaning of this term by gifting substantial amounts of property that should have been preserved for the Appellants’ benefit and by not including his entire estate in a testamentary trust for their benefit.
Regarding the gifts, Appellants complain about substantial donations their father made to the Oklahoma State University Foundation and gifts he made to his second wife, Doris. Albert and Doris were married approximately 3 years after his divorce from Margaret, and they remained married until his death in 2003. Albert’s first substantial gift to Doris was made in May 1987 when Albert deeded to Doris the real estate on which his business, Globe Engineering Co., Inc., operated; the deed stated the consideration as “one dollar and love and affection.” Subsequently, Globe paid rent to Doris for its use of the property. In addition, in October 1990, Albert and Doris purchased a residence in Florida, and a warranty deed conveyed the Florida property solely to Doris. Albert also designated Doris as the surviving beneficiaiy of his pension fund.
In addition to complaining about these “gifts,” the Appellants assert their father breached the property settlement agreement and divorce decree by not placing his remaining assets in a testamentary trust for their benefit. At the time of his death, Albert’s estate plan consisted of two inter vivos trusts and a pour-over will, as opposed to the will and testamentary trust contemplated by the settlement agreement. The change in form is not the source of the complaint, however. Rather, Appellants complain that Albert made them beneficiaries of only one of the two inter vivos trusts he had funded during his lifetime and, thus, failed to designate them as beneficiaries of one-half of the income of his entire estate or an equivalent value in corpus.
The inter vivos trust that benefits the Appellants is designated the Albert H. Nelson, Jr., Living Trust (living trust). Under the trust agreement, Albert served as trustee during his lifetime and Doris was designated the successor trustee upon Albert’s death or disability. Albert had discretion during his lifetime to pay himself all or part of the income or principal of the trust. Upon Albert’s death, one-half of the assets were to be held in the Doris H. Nelson Income Trust (income trust) and the other half of the assets were to be held in trust for the Appellants. The Appellants were to receive an annuity equal to six percent of the net fair market value of the assets held in trust for them. The annuity was to be divided in equal shares between the Appellants; if one of the Appellants died, the entire annuity was to be distributed to the survivor. The length of the annuity distribution was capped at 16 years to comply with charitable trust requirements. Upon the death of both Appellants, the remaining assets were to be distributed to Oklahoma State University Foundation and Wichita State University Endowment Association in equal shares. Likewise, upon Doris’ death, the remainder of the assets in the income trust were to be distributed ita State University Endowment Association.
The second inter vivos trust was named the Albert H. Nelson Irrevocable Trust (irrevocable trust), with Doris designated as trustee and Albert’s daughter, Markeyta Nelson Dewey, designated as successor trustee. All trust income and, if necessary, the principal were to be paid to Doris for the rest of her life. Upon Doris’ death, the remaining assets were to be distributed equally between Oklahoma State University Foundation and Wichita State University Endowment Association. The irrevocable trust authorized the trustee to sell, assign, convert, convey, or dispose of assets in the trust.
Several months after establishing the living trust and the irrevocable trust, Albert conveyed all of his stock in Globe to the two trusts in roughly equal shares. Later, all Globe shares owned by both trusts were sold to the Globe employee stock ownership plan.
Albert subsequently died in Florida on June 19,2003. Although Albert’s pour-over will provided for the delivery of any assets owned by Albert at his death to the trustee of the living trust, there were no estate assets subject to the effects of the will because Albert held all of his legal interests in property as a trustee, joint tenant, or beneficiary of a profit sharing plan.
Shortly after Albert’s death, Albert’s attorney wrote the Appellants, referencing paragraph 9 of the 1975 property settlement agreement and enclosing a copy of Albert’s will and the living trust. The letter explained that certain items of personal property and the residence that were referenced in the trust agreement were actually owned by Doris and, therefore, were not part of Albert’s estate. The attorney did not inform the Appellants about the irrevocable trust, and they did not learn of its existence until they received the estate’s tax return.
Soon after becoming aware of the second trust, the Appellants filed this suit in April 2005. This was the first claim to any assets outside the living trust. The Appellants had not taken any action to file a petition for administration of an estate in Kansas and had not filed a claim against Albert or his estate in Florida.
When this action began, Markeyta was listed as one of the defendants because she was successor trustee of the irrevocable trust. Several months later, Intrust Bank, N.A., was substituted as trustee to the irrevocable trust and became a defendant in the lawsuit. Then, during the pendency of this appeal and upon Doris’ death, Carl B. Simonye, her personal representative under letters of administration issued by the Circuit Court of Manatee County, Florida, on July 18, 2008, was substituted as a party.
In proceedings before the district court, the Appellants filed a motion for partial summary judgment, arguing they were entitled to an order imposing a constructive trust on a portion of the assets Albert had transferred to Doris. The Appellants also argued they were entitled to an order requiring Doris to account for income generated since Albert’s death by the “gifted assets.” Finally, the Appellants seek a money judgment against Doris for the amount they should have received under the 1975 property settlement agreement and any income that would have been produced since Albert’s death “but for his substantial gifts to others.”
The Appellees, in addition to responding to the Appellants’ motion for partial summaiy judgment, filed a cross-motion in which they argued the Appellants’ claims failed as a matter of law for the following reasons: (1) The property settlement agreement did not impose the contractual duties identified by the Appellants, let alone contractual duties that would bind any of the Appellees; (2) the Appellants’ claims were barred or limited by the 5-year statute of limitations relating to an action founded on contract; (3) the Appellants’ claims, i.e., demands against Albert’s estate, were barred for untimeliness under K.S.A. 59-2239; and (4) the Appellants’ legal construction of the 1975 property settlement agreement constituted an attempt to modify or vacate a judgment in violation of K.S.A. 60-260.
In an October 2006 memorandum decision, the district court denied the Appellants’ motion for partial summary judgment and granted the Appellees’ motion for summary judgment. The district court observed that the essence of the Appellants’ lawsuit was that Albert breached the 1975 properly settlement agreement by fading to execute an estate plan consistent with its terms. The court found that because Albert was the party alleged to have breached the property settlement agreement, the claims should have been brought against Albert’s estate, which the Appellants failed to do. Thus, the Appellants failed to meet the temporal requirements of K.S.A. 59-2239, the Kansas nonclaim statute.
The Court of Appeals affirmed, determining that (1) the Appellants’ claims based upon Albert’s breach of the 1975 property settlement agreement should have been brought against Albert’s estate; (2) the tort exception of the Kansas nonclaim statute, K.S.A. 59-2239(2), was inapplicable, and the claims were barred under K.S.A. 59-2239(1); (3) the Appellants were not entitled to a constructive trust; and (4) alternatively, the claim was barred by the statute of limitations applicable to claims for breach of contract. Nelson, 38 Kan. App. 2d at 72-85.
We granted the Appellants’ petition for review and a petition seeking review of another Court of Appeals decision, Estate of Draper v. Bank of America, 38 Kan. App. 2d 183, 164 P.3d 827 (2007), which raises similar issues involving the Kansas nonclaim statute and constructive trusts. See Estate of Draper v. Bank of America, 288 Kan. 510, 205 P.3d 698 (2009).
Analysis
Before this court the Appellants argue that “[t]his is not an action for breach of contract against Albert H. Nelson, Jr., deceased, or his estate”; they argue, instead, this is solely an “action for equitable relief’ in which they seek the “imposition of a constructive trust” against property held by Doris. Thus, according to the Appellants, it was neither necessary nor appropriate to bring suit against Albert’s estate and the nonclaim statute does not apply.
Before addressing the merits of Appellant’s arguments, we note that neither party suggests the issues in this case are governed by Florida law, even though Albert died in Florida and his estate was probated there. While there is some citation to Florida law in various briefs, the parties do not address the choice of law issue and, as a result, that issue is waived. See Cooke v. Gillespie, 285 Kan. 748, 758, 176 P.3d 144 (2008) (issue not briefed is deemed waived or abandoned). Consequently, we will limit our consideration to Kansas law.
Standard of Review
Our standard of review is governed by the rules relating to summary judgment and statutory interpretation. The standard applying to an appeal from summary judgment is well settled:
“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 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.” Miller v. Westport Ins. Corp., 288 Kan. 27, Syl. ¶ 1, 200 P.3d 419 (2009).
To the extent there is no factual dispute, appellate review of an order granting summary judgment is unlimited. Polson v. Farmers Ins. Co., 288 Kan. 165, Syl. ¶ 1, 200 P.3d 1266 (2009).
A de novo standard also applies to an appellate court’s examination and interpretation of statutes. Polson, 288 Kan. at 168. This standard governs our analysis of the Kansas nonclaim statute, K.S.A. 59-2239, which was the focus of the district court’s and Court of Appeals’ rulings.
Remedy of Constructive Trust
We first consider the Appellants’ assertion that this is an equitable in rem action seeking a constructive trust, not a breach of contract action or other action against Albert or his estate. The Appellants urge this court to define whether an action to impose a constructive trust is a procedural aid in execution — i.e., a remedy — or a “free-standing” cause of action. Arguing that a request for a constructive trust should be considered a separate claim upon which relief can be granted, the Appellants suggest: “Doris paid nothing for the property she received and is not a bona fide purchaser for value. This is all that need be shown.”
We reject the Appellants’ argument. Simply put, “[t]he constructive trust, like its counterpart remedies ‘at law,’ is a remedy for unjust enrichment.” 1 Dobbs, Law of Remedies § 4.3(2), p. 597 (2d ed. 1993); see Restatement of Restitution: Quasi Contracts and Constructive Trusts § 160, comment a (1936) (Restatement of Restitution). This view is widely and uniformly accepted. Crosby v. Bowater, Inc. Retirement Plan, 382 F.3d 587, 594 (6th Cir. 2004) (constructive trust is an equitable remedy, not a claim in its own right); Horattas v. Citigroup Financial Markets Inc., 532 F. Supp. 2d 891, 897 (W.D. Mich. 2007) (same); In re Amcast Indus. Corp., 365 B.R. 91, 123 (Bankr. S.D. Ohio 2007) (“requests for an accounting and imposition of a constructive trust do not describe independent causes of action”); Gulf States Steel, Inc. v. Lipton, 765 F. Supp. 696, 704 (N.D. Ala. 1990) (“the court’s research reveals no case in any jurisdiction [holding] that constructive trust constitutes a cause of action”); Fujisawa Pharmaceutical. Co., Ltd. v. Kapoor, 16 F. Supp. 2d 941, 952 (N.D. Ill. 1998) (constructive trust is a remedy, not a claim; remedy may be requested if plaintiff prevails on claims for which constructive trust is appropriate remedy); Radenhausen v. Doss, 819 So. 2d 616, 620 (Ala. 2001) (“The [defendants] correctly assert that a constructive trust is an equitable remedy; and a request to impose such a trust is not a cause of action that will stand independent of some wrongdoing.”).
In addition, Professor Dobbs refutes the Appellants’ argument that the action is solely an in rem proceeding, explaining:
“[T]he constructive trust plaintiff who proves his claim by clear and convincing evidence wins an in personam, order that requires the defendant to transfer legal rights and tide of specific property or intangibles to the plaintiff. When the court decides that the defendant is obliged to make restitution, it first declares him to be constructive trustee, then orders him as trustee to make a transfer of the property to the beneficiary of the constructive trust, the plaintiff.” 1 Dobbs, Law of Remedies § 4.3(2), pp. 590-91.
The in personam nature of the action is necessary because legal title may be properly vested in a defendant even though the plaintiff may have an equitable claim on the property. “Equity’s theory was that it did not decide title but acted in personam. It did not act on title or property but upon the person of the defendant, compelling him to follow good conscience rather than good title.” 1 Dobbs, Law of Remedies § 4.3(1), p. 587. There is an in rem component to the remedy, however, because even though the unjust enrichment claim is in personam, the constructive trust remedy is res specific; a constructive trust is essentially a tracing remedy, allowing recovery of the specific asset or assets taken from the plaintiff, any property substituted for it, and any gain in its value. 1 Dobbs, Law of Remedies § 4.3(1), pp. 588-89.
The res specific nature of the remedy does not erase the need to establish an equitable basis in the property. Rather, it is only “[wjhere a person holding title to property is subject to an equitable duty to convey it to another on the ground that he would be unjusdy enriched if he were permitted to retain it, a constructive trust arises.” (Emphasis added.) Restatement of Restitution § 160. Unjust enrichment arises when (1) a benefit has been conferred upon the defendant, (2) the defendant retains the benefit, and (3) under the circumstances, the defendant’s retention of the benefit is unjust. In re Estate of Sauder, 283 Kan. 694, 719, 156 P.3d 1204 (2007).
Similarly, the fact that the property is in the hands of a third party does not erase the need to establish an equitable duty to return the property. The Restatement explains:
“(1) Where a person holding property in which another has a beneficial interest transfers title to the property in violation of his duty to the other, the transferee holds the property subject to the interest of the other, unless he is a bona fide purchaser.
“(2) Where the owner of property transfers it in fraud of third persons, the transferee holds the property subject to their claims, unless he is a bona fide purchaser.” Restatement of Restitution § 168.
Thus, the Appellants must establish that Albert transferred the property in violation of a duty he owed to the Appellants or by committing fraud.
Remedy Based Upon Fraud
In this case, the Appellees have argued the only way this equitable duty can be established is to prove actual or constructive fraud. They cite several Kansas cases that support this view, including this court’s most recent statement in Garrett v. Read, 278 Kan. 662, 673-74, 102 P.3d 436 (2004), where we explained that “[t]o prove a constructive trust, there must be a showing of one of the two types of fraud: actual or constructive.” (Emphasis added.) Similar statements can be found in other Kansas cases. E.g., Moore v. State Bank of Burden, 240 Kan. 382, 389, 729 P.2d 1205 (1986), cert. denied 482 U.S. 906 (1987); Cousatte v. Lucas, 35 Kan. App. 2d 858, 870, 136 P.3d 484 (2006); Logan v. Logan, 23 Kan. App. 2d 920, 926, 937 P.2d 967, rev. denied 262 Kan. 962 (1997); Kampschroeder v. Kampschroeder, 20 Kan. App. 2d 361, 364-65, 887 P.2d 1152, rev. denied 257 Kan. 1092 (1995); see also Geer v. Cox, 242 F. Supp. 2d 1009, 1024 (D. Kan. 2003) (recognizing Kansas law requires showing of “ 'fraud, actual or constructive, some betrayal of confidence reposed or some breach of duty imposed . . . .’”); James M. Caplinger, Chartered v. Lundgren, 905 F. Supp. 876, 891 (D. Kan. 1995) (in Kansas, actual or constructive fraud is essential element of proving constructive trust).
Recognizing this fine of cases, the Appellants respond with two alternative arguments. First, they argue that they alleged fraud, both actual and constructive. Second, they cite to Kansas cases that recognize a constructive trust can be imposed when a claim is based upon a theory other than actual or constructive fraud.
Appellants’ Claim
In urging us to view their petition as having pled fraud, the Appellants suggest that their having sought a constructive trust enlarges the nature of their claim. To some extent, this argument relates to the Appellants’ suggestion that a request for a constructive trust is an independent theory of recovery. As previously dis cussed, courts uniformly reject this view. See One-O-One Enterprises, Inc. v. Caruso, 668 F. Supp. 693, 696 n.1 (D. D.C. 1987) (“Although plaintiffs pleaded a fifth count of constructive trust, it is a remedy, not a claim upon which relief may be granted.”), aff'd 848 F.2d 1283 (D.C. Cir. 1988).
In addition, Appellants’ argument fails because a specific claim cannot be inferred simply because of the remedy requested — i.e., it does not necessarily follow that the remedy, proceeds a specific claim or that a specific claim gives rise to a specific remedy. See Rheinstein, Critique: Contracts to Make a Will, 30 N.Y.U. L. Rev. 1224, 1231 (1955) (in cases seeking recoveiy for alleged breach of contract to devise property a wide variety of remedies are available, and “it is neither necessaiy nor helpful to speak of the imposition of a trust, constructive or otherwise; the common rules on the grant of equitable remedies in the case of inadequacy of the remedy at law suffice for all legitimate purposes”).
Rather, “ ‘[t]he nature of a claim — whether it sounds in tort or contracts — is determined from the pleadings [citations omitted] and from the real nature and substance of the facts therein alleged.’ [Citation omitted.]” Bonin v. Vannaman, 261 Kan. 199, 209, 929 P.2d 754 (1996). The Appellants’ petition states:
“Mr. Nelson breached the property settlement agreement when he created the irrevocable trust and conveyed assets to said trust, when he conveyed the joint tenancy assets to himself and Doris, when he named Doris the beneficiary of his interest in the profit sharing plan and when he conveyed the real property to Doris for inadequate consideration.”
The pretrial order is phrased in similar terms. Based upon these allegations, the district court correctly found, as did the Court of Appeals, that the basis of the Appellants’ claim was Albert’s alleged breach of the 1975 property settlement agreement, i.e., Albert’s failure to carcy out an estate plan in accordance with paragraph 9 of the agreement. The language in the petition stating that the property settlement agreement was “breached” supports this view.
Nevertheless, the Appellants assert that by pleading the wrongful actions of Albert they have pled the elements of fraud, both actual and constructive. In response, the Appellees argue actual fraud must be pled with particularity. See K.S.A. 60-209(b); Nich ols v. Kansas Political Action Committee, 270 Kan. 37, 52-53, 11 P.3d 1134 (2000). Certainly, the Appellants have failed to meet the particularity requirements with regard to actual fraud. See Kelly v. VinZant, 287 Kan. 509, 515, 197 P.3d 803 (2008) (the elements of actual fraud are [1] a false statement of existing and material fact; [2] known to be false or made recklessly; [3] made intentionally for purpose of inducing another’s action; [4] reasonable reliance on die statement; and [5] damage because of reliance).
Additionally, the Appellants did not plead the elements of constructive fraud. We have defined constructive fraud as
“ ‘ “a breach of a legal or equitable duty which, irrespective of moral guilt, the law declares fraudulent because of its tendency to deceive others or violate a confidence, and neither actual dishonesty [n]or purpose or intent to deceive is necessary.” ’ [Citation omitted.] Two additional elements must also be proven in order to establish constructive fraud: (1) a confidential relationship, and (2) a betrayal of this confidence or a breach of a duty imposed by the relationship. [Citation omitted.]” Schuck v. Rural Telephone Service Co., 286 Kan. 19, 26, 180 P.3d 571 (2008).
We note, however, that this court has not considered whether the heightened standard of pleading fraud with particularity applies when constructive fraud is being pled. Although a federal district court applying Kansas law regarding constructive fraud and the federal counterpart to K.S.A. 60-209(b) — Federal Rules of Civil Procedure (Rule) 9(b) — has stated that particularity is required when pleading constructive fraud (Geer, 242 F. Supp. 2d at 1024), there is a split of authority on the question. Compare, e.g., 3D Global Solutions, Inc. v. MVM, Inc., 552 F. Supp. 2d 1, 8 (D. D.C. 2008) (dismissing constructive fraud claim for failure to satisfy particularity requirements of Rule 9[b]); In re Merrill, 343 Bankr. 1, 9 (Bank. D. Me. 2006); Town of Geraldine v. Montana Municipal Ins. Authority, 347 Mont. 267, 198 P.3d 796, 801 (2008) (incorporating allegations of other counts and stating the “ ‘misleading behavior described above constitutes constructive fraud’ ” lacks particularity); Mortarino v. Consultant Eng. Services, 251 Va. 289, 295, 467 S.E.2d 778 (1996) (rejecting a claim for constructive fraud because the plaintiff “failed to plead, with the requisite degree of particularity, facts which support all the elements of [the] cause of action”) with, e.g., In re Allou Distributors, Inc., 387 Bankr. 365, 385 (Bankr. E.D.N.Y. 2008) (“The particularity requirement of Rule 9[b] applies only if actual, as opposed to constructive, fraud is alleged.”); Cendant Corp. v. Shelton, 474 F. Supp. 2d 377, 380 (D. Conn. 2007) (“Courts have not applied Rule 9[b] to claims of constructive, rather than actual, fraud.”); Rosales v. AT & T Information Systems, Inc., 702 F. Supp. 1489, 1498 (D. Colo. 1988) (adopting position that Rule 9[b] is inapplicable to constructive fraud claims); Terry v. Terry, 302 N.C. 77, 83, 273 S.E.2d 674 (1981) (“claim of constructive fraud does not require the same rigorous adherence to elements as actual fraud”).
Ultimately, resolution of this question will involve discussion of the purpose and policy behind K.S.A. 60-208 and K.S.A. 60-209. See Terry, 302 N.C. at 83. We are reluctant to engage in that discussion or resolve the question in this case for several reasons. First, the parties did not acknowledge the lack of Kansas authority or the split in the cases in other jurisdictions. Consequently, we do not have the benefit of a parties’ arguments as to which approach should be adopted. Second, we do not need to resolve the question because we are not considering a motion to dismiss based on the pleadings. Rather, the issue is raised through a motion for summary judgment that was filed after a pretrial order had been entered, and the pretrial order controls the subsequent course of the action. K.S.A. 60-216(e). That pretrial order does not contain any mention of a claim of constructive fraud — the elements of constructive fraud are not identified in either the questions of fact or issues of law to be determined in this action.
We, therefore, conclude that the Appellants have not asserted a claim of either actual or constructive fraud. Rather, as determined by the district court and the Court of Appeals, the Appellants’ claim is for breach of contract.
Is Fraud Required?
Given this conclusion, we must determine whether the Appellants’ action fails — i.e., must actual or constructive fraud be established in order for a constructive trust to be imposed? The Appellants argue that contrary to past statements such as the one in Garrett, 278 Kan. at 673-74, requiring a finding of actual or constructive fraud, the remedy of a constructive trust can be imposed on other grounds. For example, this court has stated that a constructive trust can arise as a remedy for “ ‘fraud, misrepresentation, duress, undue influence or mistake of such a character that the transferor is entitled to restitution.’ ” Horsley v. Hrenchir, 146 Kan. 767, 769, 73 P.2d 1010 (1937). At other times the court has omitted references to mistake but has recognized a wide range of claims of wrongdoing as a basis for invoking the remedy of constructive trust, stating:
585
“A constructive trust, sometimes termed a trust ex maleficio, or ex delicto, arises in those cases where a person by fraud, actual or constructive, or by any form of unconscionable conduct, or questionable ethics has obtained or holds title to property which in equity and good conscience he ought not to possess or which justly belongs to another. [Citations' omitted.]” (Emphasis added.) In re Estate of Zimmerman, 207 Kan. 354, 357, 485 P.2d 215 (1971).
Many other cases make broad statements regarding the nature of claims that can support a constructive trust remedy and recognize that actual or constructive fraud is not always required. E. g., Witmer v. Estate of Brosius, 184 Kan. 273, 279, 336 P.2d 455 (1959) (“It is frequently said that a constructive trust is imposed as a remedy for fraud. ‘But there are numerous situations in which a constructive trust is imposed in the absence of fraud . . . .’ 4 Scott on Trusts, [2d ed.] § 462, p. 3102.”); Titus v. Titus, 151 Kan. 824, 825, 101 P.2d 872 (1940) (speaking broadly in terms of unjust enrichment); Brogan v. Kreipe, Receiver, 116 Kan. 506, 509, 227 P. 261 (1924) (“ ‘A constructive trust arises whenever another’s properly has been wrongfully appropriated and converted into a different form. ... It is not essential for the application of this doctrine that an actual trust or fiduciary relation should exist between the original wrongdoer and the beneficial owner. Wherever one person has wrongfully taken the property of another and converted it into a new form, or transferred it, the trust arises and follows the property or its proceeds.’ ”); Clester v. Clester, 90 Kan. 638, Syl. ¶ 2, 135 P. 996 (1913) (stating that constructive trust arises “whenever the circumstances under which the property was acquired make it inequitable that it should be retained by the per son who holds the legal title”); Hile v. DeVries, 17 Kan. App. 2d 373, 374-75, 836 P.2d 1219 (1992) (declining to determine whether fraud is required to impose a constructive trust on insurance proceeds for a case in which the district court found equities required the imposition of a constructive trust).
Particularly relevant to this case are several prior decisions of this court that recognize a constructive trust is a possible remedy for breach of a contract to will property. For example, in Anderson v. Anderson, 75 Kan. 117, 123, 88 P. 743 (1907), the court stated;
“ ‘It is not claimed, of course, that any court has the power to compel a person to execute a last will and testament carrying out his agreement to bequeath a legacy, for this can be done only in the lifetime of the testator, and no breach of the agreement can be assumed so long as he lives. And after his death he is no longer capable of doing the thing agreed by him to be done. But the theory on which the courts proceed is to construe such an agreement, unless void under the statute of frauds or for other reason, to bind the property of the testator or intestate so far as to fasten a trust on it in favor of the promisee, and to enforce such trust against the heirs and personal representatives of the deceased, or others holding under them charged with notice of the trust.’ [Citation omitted.]”
Many Kansas cases recognized this theory of recovery, with most of the cases arising before the use of trusts became common and during a time when a contract to bequeath or devise property was a more common form of estate planning and was “not infrequently made” in exchange for personal services. 2 Bartlett, Kansas Probate Law and Practice § 591, p. 127 (rev. ed. 1953) (discussing Kansas cases); see generally Bogert, Trusts and Trustees § 480 (rev. 2d ed. 1978 & 2008 Supp.); Rheinstein, 30 N.Y.U. L. Rev. at 1226; Note, Two Problems in Contracts to Make a Will, 57 Col. L. Rev. 1151 (1957).
According to these cases, in order for a constructive trust to be imposed, equity hád to demand relief; there must have been clear and convincing proof of a contract — a certain and definite agreement to leave specific property by will and adequate consideration; and there had to be compliance with the statute of frauds. E.g., Anderson, 75 Kan. at 123; 2 Bartlett, Kansas Probate Law and Practice § 592. In addition, the more general considerations of a constructive trust reqúired that the equitable redress must be timely invoked, the fund or property must be clearly traced into the hands of some person who has received it, and the fund or property still must be in existence. See Woods v. Duval, 151 Kan. 472, 480-81, 99 P.2d 804 (1940) (not involving contract to will but stating principles). The primaiy consideration was whether there was an unjust enrichment and, as a result of applying equitable principles, the contract was not always enforced. See, e.g., In re Estate of Davis, 171 Kan. 605, 612-13, 237 P.2d 396 (1951) (enforcement not matter of right but of equity; under facts of case, enforcement against interests of second wife would be inequitable); Dillon v. Gray, 87 Kan. 129, 135, 123 P. 878 (1912) (enforcement against wife who married without notice of agreement and who lived with and cared for husband would be inequitable); see generally Note, 57 Col. L. Rev. at 1153 (listing as equitable considerations spouse’s rights; lack of surviving spouse’s knowledge of agreement; duration of marriage to surviving spouse; consideration for agreement).
More recently, in Salvation Army v. Estate of Pryor, 1 Kan. App. 2d 592, 601, 570 P.2d 1380 (1977), the Court of Appeals recognized that an attempt to enforce a joint, mutual, and contractual will and impose a constructive trust could be based on several theories of recovery, including breach of contract, breach of fiduciary duty, actual or constructive fraud, or some other form of “unconscionable conduct.”
Hence, as the parties to this appeal note, there is confusion in Kansas law regarding what must be established before the remedy of a constructive trust will be available. Although the more recent cases have required actual or constructive fraud, the cases recognizing a broader range of claims — including cases holding that a constructive trust can be imposed when property is not devised or bequeathed as agreed — have never been overruled or disapproved. In fact, it appears the two strands of cases have never been reconciled and only rarely have discussions acknowledged the two, divergent approaches in Kansas law.
One instance in which the divergent views was recognized is the Court of Appeals’ decision in this case. The Nelson court cited two cases in which actual or constructive fraud was not required — Hile, 17 Kan. App. 2d 373, and Tivis v. Hulsey, 148 Kan. 892, 895, 84 P.2d 862 (1938). Faced with this court’s clear statement in Garrett, 278 Kan. at 673-74, that actual or constructive fraud must be established, the panel distinguished Hile and Tivis on the grounds that those cases imposed a constructive trust on insurance proceeds. Nelson, 38 Kan. App. 2d at 77. Although we do not fault the Court of Appeals for grasping at the insurance distinction when faced with this court’s apparently conflicting decisions, we discern no reason that the equitable concepts relating to the creation of a trust are different in Hiles and Tivis than in this case. In both Hiles and Tivis, a father breached his agreement to maintain life insurance coverage for the benefit of his children, and a trust was imposed upon the funds. Both courts reasoned that rival claims to insurance policy proceeds may become a contest setded by equity. In such a case, the proceeds of the policy become a trust fund that may be followed by the claimant who eventually establishes the right to equitable relief. Tivis, 148 Kan. at 895; Hile, 17 Kan. App. 2d at 375 (quoting Tivis, 148 Kan. at 895). The same reasoning underlies the competing claims in this case. The Appellants claim a right to- the property as third-party beneficiaries of the contract, and the Appellees, who have done no wrong, stand ready to receive the assets as beneficiaries of a trust. Hence, both have a legal basis for their claims to the property, and equity must determine which claim prevails.
More generally, we are hard pressed to articulate any rationale for distinguishing between the two lines of cases. Further, we have found no explanation for why the two lines diverged, much less a reason that would justify continuation of the separate lines of analysis. We suspect that one reason two approaches developed may be that most cases, even those speaking in broader terms, are actually based upon claims of actual or constructive fraud. See, e.g., Clester, 90 Kan. 638, Syl. ¶ 2.
A second reason for confusion may be that constructive trust cases, even those not based on fraud, have generally required clear and convincing evidence, which is the burden of proof required to prove fraud. See Anderson, 75 Kan. at 123; 2 Bartlett, Kansas Probate Law and Practice § 592; 1 Dobbs, Law of Remedies § 4.3(2), pp. 590-91. This may have led to imposition of other fraud requirements, especially in light of the nature of constructive fraud which can encompass a broad range of equitable claims.
As we now consider which view should be followed, we note that the narrow view requiring actual or constructive fraud is contrary to the Restatement of Restitution: Quasi Contracts and Constructive Trusts § 160 (1936), and is rejected by commentators who recognize a variety of claims can establish the unjust nature of a defendant’s rights to or title in property. For example, Professor Dobbs lists embezzlement, conversion, fraud, duress, undue influence, misuse or misappropriation of information, and infringement of copyright as some of the claims for which a constructive trust has been deemed an appropriate remedy. In addition, he notes that wrongdoing is not essential to the remedy arising; unjust enrichment may result from a mutual mistake of law in the formation of a contract or a constructive trust may be a necessary mechanism for the equitable division of marital property. 1 Dobbs, Law of Remedies § 4.3(2), pp. 597-98 (2d ed. 1993); see Restatement of Restitution § 160, comment c; Rogert, Trusts and Trustees § 471; 5 Fratcher, Scott on Trusts § 462 (4th ed. 1989). These commentators do note that some courts are more restrictive in recognizing the type of claims that may serve as a basis for a constructive trust, and often the more restrictive view requires a showing of fraud or constructive fraud. Rogert, Trusts and Trustees § 471, pp. 21-23 6 2008 Supp. pp. 54-55; 5 Fratcher, Scott on Trusts § 462, pp. 303-04; see 1 Dobbs, Law of Remedies § 4.3(2), p. 597. Generally, however, the more limited view is seen as a “misconception.” 1 Dobbs, Law of Remedies § 4.3(2), p. 597.
Considering the approach of other courts, we find no reason to limit the availability of the constructive trust remedy in Kansas. Rather than being tied to the nature of the claim, the imposition of a constructive trust is a remedial device designed to prevent unjust enrichment by one who has an equitable duty to convey property to those to whom the property justly belongs. Additionally, the remedy is not easily obtained; the heightened clear and convincing burden of proof protects the interests of the property holders who may be innocent of wrongdoing. In re Estate of Zimmerman, 207 Kan. at 357; see Restatement of Restitution § 160.
Hence, we conclude the view that actual or constructive fraud must be established before the remedy of a constructive trust can be granted is contrary to widely accepted analysis of the remedy and is not justified by Kansas law. To the extent that any case has held that actual or constructive fraud is the exclusive basis for the remedy of a constructive trust, we explicitly disapprove that holding.
Kansas Nonclaim Statute
As a result, the Appellants may base their request for a constructive trust on their claim that Albert breached the property settlement agreement. Consequently, we must consider the questions of whether this action is a claim that must be brought against Albert’s estate and, if so, whether that claim is barred by the Kansas nonclaim statute, K.S.A. 59-2239.
K.S.A. 59-2239(1) broadly encompasses “all demands” against an estate. In addition, it provides a mechanism for a creditor to petition for administration of a decedent’s estate when no estate has been opened in Kansas, stating:
“All demands, including demands of the state, against a decedent’s estate, whether due or to become due, whether absolute or contingent, including any demand arising from or out of any statutory liability of decedent or on account of or arising from any liability as surety, guarantor or indemnitor, and including the individual demands of executors and administrators, shall be forever barred from payment unless the demand is presented within the later of: (a) four months from the date of first publication of notice under K.S.A. 59-2236, and amendments thereto; or (b) if the identity of the creditor is known or reasonably ascertainable, 30 days after actual notice was given, except that the provisions of the testator’s will requiring the payment of a demand exhibited later shall control. No creditor shall have any claim against or hen upon the property of a decedent other than hens existing at the date of the decedent’s death, unless a petition is filed for the probate of the decedent’s will pursuant to K.S.A. 59-2220 and amendments thereto or for the administration of the decedent’s estate pursuant to K.S.A. 59-2219 and amendments thereto within six months after the death of the decedent and such creditor has exhibited the creditor’s demand in the manner and within the time prescribed by this section, except as otherwise provided by this section.”
The nonclaim statute recognizes that a decedent no longer has the individual capacity to respond in damages to torts, to pay debts, to carry out contracts, or to administer his or her estate; therefore, the estate must meet the decedent’s financial obligations. In re Estate of Reynolds, 266 Kan. 449, 456-57, 970 P.2d 537 (1998). As a result, a person who seeks to recover from the decedent, whether based on tort, contract, the decedent’s will, or the statute of intestate succession, must recover, if at all, from the decedent’s estate. 266 Kan. at 456-57; Burns v. Drake, 157 Kan. 367, 369-72, 139 P.2d 386 (1943).
K.S.A. 59-2239 imposes a special statute of limitations governing such claims against a decedent’s estate, and it operates as a complete bar to all demands against a decedent’s estate that are not timely filed. Union Nat’l Bank & Trust Co. v. Estate of Werning, 233 Kan. 671, Syl. ¶¶ 1-3, 665 P.2d 192 (1983); Harris, Survey of Kansas Law: Administration of Estates, 17 Kan. L. Rev. 325, 328 (1968); see also 3 Bartlett, Kansas Probate Law and Practice §§ 1315, 1316 (rev. ed. 1953) (statute combines former nonclaim and limitations statutes).
Professor Bartlett, in his treatise on Kansas probate law, explains the purpose of and policy behind the nonclaim statute:
“An evident purpose of the statute is to protect the executor or administrator against stale claims and to enable him to close the estate and distribute the balance thereof without unnecessary delay. A primary purpose is the speedy setdement of the estates of deceased persons in the interest of creditors, heirs, legatees, and devisees, and to render certain the titles to real estate. A speedy administration of the estate is for the benefit of creditors, who have the priority of right; and, when their claims are satisfied, for the payment of legacies or distribution to the heirs. When beneficiaries or heirs succeed to the estate it should be to a title freed from the incumbrance of or liability to debts. In subservience to this purpose has been the uniform construction of these statutes, and especially of the statute of nonclaim. In the absence of this statute, a settlement of an executor or administrator and the payment of legacies or distributive shares would be attended with the peril of future litigation by creditors against the beneficiaries and distributees to subject their legacies or distributive shares to the payment of debts. In making distribution or paying legacies, the personal representative would act at his own hazard.” 3 Bartlett, Kansas Probate Law and Practice § 1316.
See also In re Estate of Tracy, 36 Kan. App. 2d 401, 405, 140 P.3d 1045 (2006) (recognizing that primary purpose of K.S.A. 59-2239 is speedy settlement of estates in interest of creditors, heirs, legatees, and devisees and to settle titles to real estate).
This policy has been furthered by cases that have read the term “all demands” to be broadly inclusive of any and all claims, making exception only where a statute expressly provides otherwise. Union Nat’l Bank & Trust Co., 233 Kan. 671, Syl. ¶ 2. One statutory exception is found in K.S.A. 59-2239(2); that exception extends the statute of limitations for tort claims. Because we have concluded that the Appellants failed to plead fraud and the Appellants do not suggest they have pled any other tort, the tort exception does not apply. There is no similar exception for contract claims; such claims must be brought within the nonclaim period of K.S.A. 59-2239(1).
This general rule requiring claims that the decedent breached a contract to be made against the estate within the nonclaims period has been applied when it is claimed a decedent breached a contract to make a will or devise property in a specified manner. As one authority explains:
“That a contract to malee a will is a contract in the ordinary sense is of special importance in the case of its breach, which consists in the promisor’s failure to have in effect at the time of his death a will corresponding to the terms of his promise. The ordinary remedy for such a breach is an action at law for damages, to be prosecuted against the estate of the promisor-decedent in the same manner as any other claim sought to be enforced against a decedent’s estate, which means, among other things, that it is not to be paid out of the assets of the estate unless it has been filed within the period of the statute of nonclaims.” Rheinstein, Critique: Contracts to Make a Will, 30 N.Y.U. L. Rev. 1224, 1231 (1955).
See also Wilkison v. Wiederkehr, 101 Cal. App. 4th 822, 829-30, 124 Cal. Rptr. 2d 631 (2002) (claim must be filed because “a final breach cannot be regarded as occurring until the death of the deceased, the breach was committed by the deceased, and the liability on account thereof is” the deceased’s); Shuck v. Bank of America, N.A., 862 So. 2d 20, 23 (Fla. Dist. App. 2003) (“If a decedent breaches a contract to make a will, the right being enforced is a contract right.”); Lindeburg v. Lindeburg, 162 So. 2d 1, 3 (Fla. Dist. App.), cert. denied 166 So. 2d 754 (Fla. 1964) (husband can be required to answer personally through his estate for his breach of property settlement agreement).
Kansas appellate cases are in accord and have consistently held that an action to enforce an agreement to devise or bequeath a portion of the decedent’s estate constitutes a claim against the estate. For example, in In re Estate of Goodburn, 210 Kan. 740, 746, 504 P.2d 612 (1972), this court held that “where a party seeks to enforce a contractual obligation to devise or bequeath a portion of a decedent’s estate, the proceeding constitutes a demand against the estate and not a will contest.” The holding in that case, however, answered a different question than presented here; the Good-bum court was asked whether the suit to enforce a contractual obligation to devise and bequeath one-half of the decedent’s property to the petitioner was a demand on the estate or a will contest.
Five years later, in Salvation Army, 1 Kan. App. 2d 592, the Court of Appeals applied the Goodburn holding to an issue more similar to the issue in this case. The court held that a claim based upon a breach of a joint, contractual, and mutual will is barred by the nonclaim statute if not timely asserted. 1 Kan. App. 2d at 600-01.
In Salvation Army, the district court imposed a constructive trust on assets in an estate. The assets had been inherited by Agnes Pryor from her sister, Gussie McClure. McClure had allegedly violated a joint, mutual, and contractual will that had been probated on the death of her husband. Under the terms of the will, the surviving spouse held a life estate in the couple’s assets and upon the survivor’s death the remainder would be shared by several churches, charities, and institutions, including the Salvation Army. McClure, sometime after her husband’s death, executed a new will in which she devised the bulk of her assets to Pryor, who was the decedent in the case before the court. The Salvation Army filed a claim in Pryor’s estate; however, it had not filed a claim in the estates of either McClure or her husband. The Court of Appeals held the failure to make a claim against McClure’s estate barred the recovery and reversed the district court’s decision to impose a constructive trust. 1 Kan. App. 2d at 601-02, 606.
The Court of Appeals reached the same conclusion 12 years later in the case of In re Estate of Pallister, 13 Kan. App. 2d 337, 770 P.2d 494 (1989). Minne Pallister died in 1985, leaving two sons and one granddaughter, Mary Louise Shull, as her sole heirs. The sons did not probate their mother s will which had left all property to the sons and had excluded Pallister’s deceased daughter, who was Shull’s mother. After the time for probate had passed, Shull brought a proceeding to claim her intestate share of her grandmother’s estate. The two sons sought to probate and enforce the will as a valid contract in their favor.
The Court of Appeals affirmed the trial court’s refusal to probate the will but reversed the trial court’s decision to enforce the will as a contract. 13 Kan. App. 2d at 389-40. The Court of Appeals determined that although the will was an enforceable contract, it had to be brought within the nonclaim period as a contract claim against Pallister’s estate. The court stated:
“While this case does present the issue of the determination of persons entitled to distribution of the estate, the trial court sought to enforce a contract, and the enforcement of a contract against an estate involves a claim. Thus, the trial court erred in enforcing a contract that is barred by the nonclaim statute.” (Emphasis added.) 13 Kan. App. 2d at 339.
See also In re Estate of Manweiler, 185 Kan. 343, 342 P.2d 730 (1959) (spouse claiming decedent breached contract to will property properly brought demand against estate that was then transferred to district court for determination).
The Appellants attempt to distinguish these cases by seizing on three points: (1) The action was timely under the tort exception to the nonclaim statute, (2) a claim is not being made against assets “in” the estate and, therefore, the action would not reduce the estate, and (3) it would be futile to make a claim against the estate because there was no estate and no need to administer an estate because there were no probate assets.
Regarding the first point of distinction, the Appellants note that the Salvation Army court stated that K.S.A. 59-2239(1) only applied to contractual theories and did not necessarily preclude recovery on any other theory such as “breach of fiduciary duty, actual or constructive fraud, or some other form of unconscionable conduct.” 1 Kan. App. 2d at 601. Because we have rejected the Appellants’ argument that they have made a claim based in tort, this point of distinction does not advance Appellants’ position.
As a second point of distinction, the Appellants note that the Salvation Army court cited In re Estate of Welch, 167 Kan. 97, 105, 204 P.2d 714 (1949), for its holding that the nonclaim statute applies “ ‘only to claims against the estate of a decedent, which, if ¿lowed, will reduce the corpus of his estate or the amount of property which would otherwise be subject to division or distribution among the heirs of an intestate decedent or the legatees and devisees of a testate decedent as the case may be.’ ” Salvation Army, 1 Kan. App. 2d at 600. As the Appellants observe, similar statements can be found in many Kansas cases. E.g., In re Estate of Reynolds, 266 Kan. at 455; In re Estate of Goodburn, 210 Kan. at 745 (quoting 2 Bardett, Kansas Probate Law and Practice § 780 [rev. ed. 1953]); In re Estate of Watson, 21 Kan. App. 2d 133, Syl. ¶ 5, 896 P.2d 401 (1995).
This application of the nonclaim statute derives in part from a distinction made before our court system was unified. The distinction related to whether property was “in” the decedent’s estate and the claim would remove property from the estate or whether the property was “outside” the decedent’s estate and was being brought into the estate. Preunification cases followed the general rule that to take property out of an estate one had to proceed in probate court under the Probate Code; but to bring property into an estate, one had to proceed under the Code of Civil Procedure in the district court. See, e.g., In re Estate of Matthews, 208 Kan. 492, 501, 493 P.2d 555 (1972); In re Estate of Thompson, 164 Kan. 518, 190 P.2d 879 (1948). After the unification of the Kansas court system resulted in all probate matters being handled in the district court, the preunification distinction in procedur¿ rules and jurisdictional requirements was still applied to some extent; specifically, probate proceedings in the district court are governed by the Probate Code (K.S.A. Chapter 59) and other civil actions are generally governed by the Code of Civil Procedure (K.S.A. Chapter 60). Gorham State Bank v. Sellens, 244 Kan. 688, 695, 772 P.2d 793 (1989). The nonclaim statute is found in the Probate Code; thus, the distinction is still relevant in determining whether the nonclaim statute applies.
In the context of the nonclaim statute, the distinction was explained in In re Estate of Pallister, 13 Kan. App. 2d at 339. There the Court of Appeals stated that a claim must be made against the estate when it is asserted that the decedent breached a contract and, as a result, a transfer of property is void. On the other hand, a claim against the estate is not required if the property is in the estate and the controversy is “ ‘between contending heirs as to the proportionate share each will receive out of the decedent’s estate.’ ” Pallister, 13 Kan. App. 2d at 339 (quoting In re Estate of Welch, 167 Kan. at 105); see also In re Estate of Wright, 170 Kan. 400, 404-06, 227 P.2d 131 (1951) (noting difference between a petition requesting administration of assets that had not been administered, which was not a claim, and petition alleging assets were not in estate because a transfer of title was void due to breach of contract, which was a claim). The Appellants’ claim falls in the first category, meaning a claim must be made against the estate.
The Appellants insist these cases are still distinguishable because often these cases deal with assets which despite the alleged breach of contract are still “in” the estate. However, the Appellants fail to note that later in the Salvation Army v. Estate of Pryor, 1 Kan. App. 2d 592, 604, 570 P.2d 1380 (1977), albeit in dicta, the court acknowledged the executor’s duty to marshal all assets that should be in an estate and available for distribution. See K.S.A. 59-1401 (imposing duty). Consistent with this distinction, in Estate of Draper, 288 Kan. 510, 530, 205 P.3d 698 (2009), we recognize the validity of an action brought by an administrator to marshal assets transferred by the decedent in violation of an antenuptial agreement. Through this power, property can be brought into the estate where a claim can be made and recovery may be allowed.
On the other hand, if the property is riot brought into the estate, recovery may not be allowed. This point is illustrated by at least two cases, Houdashelt v. Sweet, 163 Kan. 97, 180 P.2d 604 (1947), and Wright v. Rogers, 167 Kan. 297, 205 P.2d 1010 (1949). In those cases, this court dismissed actions brought by heirs directly against those who held property that had been obtained via an allegedly void transfer. Even though the heirs were making claim to property outside the estate, in both cases the court found the proceeding against the property holder was tantamount to a claim or demand to a portion of the decedent’s estate and as such had to be filed in the probate court within the time provided by law. In Houdashelt, the court explained that the action was based upon fraud and undue influence, and if that allegation were true, the land was not legally conveyed and therefore remained an asset of the estate. 163 Kan. at 100; see Wright, 167 Kan. at 302.
The same rationale applies in this case. The Appellants have asserted that Albert breached the settlement agreement by transferring property to the trusts and, as a result, these transfers were void. If the transfers were found to be void, the property would pass through Albert’s probate estate and be distributed according to his will.
Another reason justifies the requirement that this action be brought as a claim against the estate: Generally, equitable remedies are not available if there is an adequate remedy at law. See Mid-America Pipeline Co. v. Wietharn, 246 Kan. 238, 242, 787 P.2d 716 (1990). Under this principle, a claim must first be made against the one who violated a duty or, when that person is deceased, that person’s representative — i.e., an estate administrator — and-a remedy at law must be unavailable before equitable relief is allowed. See Wilkison, 101 Cal. App. 4th at 828-33.
The discussion of this principle of equity is closely related to Appellants’ third point of distinction, which is their argument that there was not an adequate remedy at law in this case because there was no estate in Kansas and no assets in the Florida estate to provide money damages. They further note that “[t]he law does not require the performance of a futile or useless act.” Anderson v. Dugger, 130 Kan. 153, 156, 285 P. 546 (1930). However, these arguments do not account for K.S.A. 58a-505(a)(3), which provides that “the property of a trust that was revocable at the settlor’s death is subject to claims of the settlor’s creditors.” Under this provision, the assets in Albert’s revocable “living trust” could have been accessed to satisfy any meritorious, timely breach of contract claims against Albert’s estate. Thus, the one-half of the trust that benefit-ted Ethel, and in turn other Appellees as remainder beneficiaries, could potentially have been available to the estate to satisfy the Appellants’ claim. In addition, as noted in our discussion of Houdashelt, the assets in the irrevocable trust would be in the estate if it were determined that the transfer of those assets was void. Consequently, although there were no assets in Albert’s estate, an administrator would have the ability to marshal assets that should have been in the estate and these assets would be available to satisfy Appellants’ claim. As a result, the policy behind the nonclaim statute is implicated and that procedure should be followed.
The fact that there was no Kansas estate does not change this outcome. When one claims property of an estate, the fact that an estate does not exist does “not reheve [a family member] or any other person having a claim upon the property of [the] estate from having an administrator appointed” under the provisions of K.S.A. 59-2239 and making a claim against the estate. Gebers v. Marquart, 166 Kan. 604, 609, 610, 203 P.2d 125 (1949); Gantz v. Bondurant, 159 Kan. 389, 394-95, 155 P.2d 450 (1945).
Consequently, we hold that the Appellants as third-party beneficiaries asserted a claim against the estate by alleging that Albert’s transfers of assets to the trusts were a breach of the property settlement agreement and, therefore, the transfers were void. This claim against Albert’s estate is barred by the Appellants’ failure to exercise the right of creditors to open an estate and make a timely claim as required by K.S.A. 59-2239(1).
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Johnson, J.:
Pursuant to a plea agreement, Joshua M. Horn pled guilty to one count of attempted aggravated criminal sodomy in violation of K.S.A. 21-3301(a), (c), and 21-3506(a)(l). Applying the provisions of K.S.A. 21-4643, commonly referred to as Jessica’s Law, the district court sentenced Horn to life in prison with a mandatoiy minimum prison term of 25 years (hard 25). Horn appeals that sentence, claiming that he should have received a Kansas Sentencing Guidelines Act (KSGA) sentence for a nondrug severity level 1 felony, as provided in K.S.A. 21-3301(c). Applying the rule of lenity to resolve the conflicting statutory provisions applicable in this case, we vacate Horn’s sentence and remand for resentencing under the KSGA for a nondrug severity level 1 crime.
The facts underlying Horn’s conviction are not germane to this opinion; it is enough to know that Horn was convicted of attempted aggravated criminal sodomy. The sole legal question before us is which of two statutes, each plainly applicable to the sentencing of attempted aggravated criminal sodomy, is to control. We exercise unlimited review of statutory interpretation questions, unfettered by the trial court’s findings. See State v. Thompson, 287 Kan. 238, 243, 200 P.3d 22 (2009); State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006).
The crime of aggravated criminal sodomy is set forth in K.S.A. 21-3506. One means to commit the crime, as described in K.S.A. 21-3506(a)(l), is to engage in sodomy with a child under 14 years of age. If the offender is 18 years of age or older, the aggravated criminal sodomy described in subsection (a)(1) is an off-grid felony. K.S.A. 21-3506(c). In that circumstance, “the sentence shall be imprisonment for life pursuant to K.S.A. 21-4643, and amendments thereto.” K.S.A. 21-4706(d). K.S.A. 21-4643, Jessica’s Law, mandates a minimum prison term of 25 years for certain crimes, including “aggravated criminal sodomy, as defined in subsection (a)(1) or (a)(2) of K.S.A. 21-3506, and amendments thereto.” K.S.A. 21-4643(a)(1)(D).
However, Horn was convicted of an attempt to commit aggravated criminal sodomy. K.S.A. 21-3506 does not specify attempted sodomy as a means of violating that statute. Cf. K.S.A. 21-3449 (specifically describing the crime of terrorism as including “the attempt to commit or the conspiracy to commit”). Therefore, as the State apparently recognized with its statutory citations in the amended information, attempted aggravated criminal sodomy is a separate offense created by the provisions of K.S.A. 21-3301(a), the statute setting forth the elements of the anticipatory crime of attempt. See State v. Martens, 274 Kan. 459, 464-65, 54 P.3d 960 (2002) (where statute only criminalized the manufacture of controlled substance, the attempted manufacture of controlled substance was a separate offense controlled by K.S.A. 21-3301[a]). In turn, K.S.A. 21-3301(c) specifies that an attempt to commit an off-grid felony is to be ranked at nondrug severity level 1, indicating that the presumptive sentence is to be found in the KSGA nondrug grid.
However, a provision of Jessica’s Law, K.S.A. 21-4643(a)(1)(G), also purports to apply its hard 25 life imprisonment sentencing to “an attempt, conspiracy or criminal solicitation, as defined in K.S.A. 21-3301, 21-3302 or 21-3303, and amendments thereto, of an offense defined in paragraphs (A) through (F).” Thus, the same crime of attempted aggravated criminal sodomy, when committed by an adult offender on a child under 14 years, is subject to two statutory sentencing provisions: a KSGA sentence under the statute creating the offense, K.S.A. 21-3301, and an off-grid, mandatory minimum sentence under Jessica’s Law, K.S.A. 21-4643.
Each statute is plain and unambiguous, which would normally preclude the application of any rules of construction or the reliance on legislative history. See In re KM.H., 285 Kan. 53, 79-80, 169 P.3d 1025 (2007). The conundrum arises not from any lack of clarity in statutory language, but rather from the existence of two statutes which appear to be controlling, yet are conflicting.
One proposed argument is that, when general and specific statutes are in conflict, the specific statute controls unless it appears the legislature intended otherwise. See In re K.M.H., 285 Kan. at 82; State v. Le, 260 Kan. 845, 848, 926 P.2d 638 (1996). The argument here assumes that Jessica’s Law is the specific statute. However, one could view the statute which sets forth the elements of the crime to be the specific one, and the statute which lumps together attempt, conspiracy, and solicitation for sentencing purposes to be more general. Here, the crime of attempt is specifically defined by K.S.A. 21-3301(a).
Nevertheless, the legislature sent a mixed message during the 2006 session in which it adopted Jessica’s Law. That year, it also created the new crimes of terrorism (K.S.A. 21-3449) and illegal use of weapons of mass destruction (K.S.A. 21-3450). Both those statutes included attempts as a means of committing the crimes and clarified that the crimes were off-grid felonies. The legislature then took the further step of amending K.S.A. 21-3301(c), which ranks an attempt to commit an off-grid felony as a nondrug severity level 1, to specify that “[t]he provisions of this subsection shall not apply to a violation of attempting to commit the crime of terrorism pursuant to K.S.A. 21-3449, ... or of illegal use of weapons of mass destruction pursuant to K.S.A. 21-3450.” Inexplicably, the legislature did not also include Jessica’s Law as an exception to K.S.A. 21-3301(c). In other words, the legislature demonstrated an ability to clarify when it did not want the sentencing provision of K.S.A. 21-3301(c) to apply to an attempt to commit an off-grid felony, but chose not to do so with Jessica’s Law.
The district court focused on the provisions of Jessica’s Law, particularly noting that K.S.A. 21-4643(a)(2)(B) requires the sentencing court to impose the applicable guidelines sentence if it results in a longer prison term than the mandatory minimum of 25 years (300 months). That persuaded the district court that the legislative intent was to impose the longest possible prison term for the crimes listed in 21-4643(a)(1), including attempts. While that intuitive assessment of legislative intent is likely accurate, we cannot simply ignore the fact that the legislature did not clearly state its intent by amending K.S.A. 21-3301(c) to exclude K.S.A. 21-4643. Cf. State v. Manbeck, 277 Kan. 224, 228-29, 83 P.3d 190 (2004) (court assumes legislature meant what it passed, notwithstanding a perception that it intended to do something else).
Where the legislature fails to manifest a clear legislative intent by permitting the existence of conflicting statutory provisions, the rule of lenity must be considered. We recently discussed the rule in the context of multiplicity. See Thompson, 287 Kan. at 249; State v. Pham, 281 Kan. 1227, 1248, 136 P.3d 919 (2006). The general application of the rule is that “ ‘[c]riminal statutes must be strictly construed in favor of the accused. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute.’ ” State v. Rupnick, 280 Kan. 720, 735, 125 P.3d 541 (2005) (quoting State v. McGill, 271 Kan. 150, 154, 22 P.3d 597 [2001]).
Employing the rule of lenity in this case leads us to resolve the conflicting statutory provisions in favor of Horn. Specifically, aggravated criminal sodomy in violation of K.S.A. 21-3506(a)(l) is an off-grid felony. K.S.A. 21-3506(c). Pursuant to K.S.A. 21-3301(c), the separate crime of attempted aggravated criminal sodomy is ranked as a nondrug severity level 1 felony. Therefore, we vacate Horn’s hard 25 life sentence under 21-4643 and remand for ap propriate sentencing for a severity level 1 nondrug felony under the KSGA.
Sentence vacated and case remanded for resentencing. | [
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|
The opinion of the court was delivered by
ROSEN, J.:
Larcy Gervease Bee, Jr., seeks review of a published opinion by the Kansas Court of Appeals affirming the sentence imposed following the revocation of his probation without consideration of nonprison sanctions.
On July 14, 2003, the State filed a complaint/information charging Bee with one count of possession of methamphetamine in violation of K.S.A. 65-4160(a), one count of violating drug tax stamp requirements in violation of K.S.A. 79-5204, one count of possessing marijuana in violation of K.S.A. 65-4162(a)(3), one count of possession of drug paraphernalia in violation of K.S.A. 65-4152, and one count of driving with an open container in violation of K.S.A. 8-1599. On January 26, 2004, Bee entered into a plea agreement, pursuant to which he pled guilty to one count of possession of methamphetamine and the State dismissed the four other counts. On May 10, 2004, the district court found Bee subject to the terms of Senate Bill 123 (K.S.A. 2003 Supp. 21-4729) and suspended the imposition of the standard sentencing guidelines prison sentence of 13 months and placed Bee on intensive supervised probation and required as a condition mandatory drug treatment. He fell in the presumptive probation section of the drug offense sentencing guidelines grid block 4-H.
On June 14, 2004, the State filed a motion to revoke Bee’s probation, alleging his failure to report to his intensive supervision officer (ISO), failure to enter inpatient treatment, and continued marijuana and methamphetamine use. On September 13, 2006, the State filed an amended motion to revoke Bee’s probation, alleging violation of the conditions of his probation. At the revocation hearing, Bee’s ISO testified that Bee never entered a drug treatment program, that he repeatedly failed to report to the ISO director, that he failed to pay any court costs and other costs, that he failed to report for a scheduled in-patient drug treatment, and that he tested positive for marijuana and amphetamines. On September 18, 2006, the district court revoked his probation and ordered him to serve the underlying sentence. The district court did not consider on the record alternative nonprison sanctions, such as the Labette Correctional Conservation Camp (Labette). Bee filed a timely notice of appeal.
The Court of Appeals affirmed the revocation and sentence in State v. Bee, 39 Kan. App. 2d 139, 179 P.3d 466 (2008). This court granted Bee’s petition for review on the question of whether, when an offender is sentenced pursuant to K.S.A. 2003 Supp. 21-4729, K.S.A. 2003 Supp. 21-4603d(g) requires the district court to consider Labette or a community intermediate sanction center prior to revoking probation and ordering the underlying prison sentence to be served.
This appeal seeks resolution of an apparent conflict between two statutory provisions relating to imposition of nonprison sanctions. One provision requires consideration of a conservation camp or a community intermediate sanction center before revoking probation. The other provision mandates imposition of an underlying prison sentence upon a finding of failure to comply with a court-ordered drug abuse treatment program.
Interpretation of a sentencing statute is a matter of law, and the standard of review is unlimited. Abasolo v. State, 284 Kan. 299, Syl. ¶ 1, 160 P.3d 471 (2007).
K.S.A. 2003 Supp. 21-4603d(g) requires in relevant part:
“[P]rior to revocation of a nonprison sanction of a defendant whose offense is classified in grid blocks 4-E or 4-F of the sentencing guideline grid for drug crimes and whose offense does not meet the requirements ofKS.A. 2003 Supp. 21-4729, and amendments thereto, or prior to revocation of a nonprison sanction of a defendant whose offense is classified in the presumptive nonprison grid block of either sentencing guideline grid . . ., the court shall consider placement of the defendant in the Labette correctional conservation camp, conservation camps established by the secretary of corrections . . . or a community intermediate sanction center. Pursuant to this paragraph the defendant shall not be sentenced to imprisonment if space is available in a conservation camp or a community intermediate sanction center and the defendant meets all of the conservation camp’s or a community intermediate sanction center’s placement criteria unless the court states on the record the reasons for not placing the defendant in a conservation camp or a community intermediate sanction center.” (Emphasis added.)
Our courts have construed the statutory language “shall consider placement” to be mandatory. See, e.g., State v. Wiegand, 275 Kan. 841, 846, 69 P.3d 627 (2003); State v. Williams, 34 Kan. App. 2d 837, 838, 125 P.3d 578 (2006).
In 2003, the Kansas Legislature enacted K.S.A. 2003 Supp. 21-4729 (often referred to as Senate Bill 123), providing for nonprison sanctions of certified drug abuse treatment programs for certain qualified offenders. Subsection (f) provides:
“(1) Offenders in drug abuse treatment programs shall be discharged from such program if the offender:
(A) Is convicted of a new felony, other than a felony conviction of K.S.A. 65-4160 or 65-4162, and amendments thereto; or
(B) has a pattern of intentional conduct that demonstrates the offender’s refusal to comply with or participate in the treatment program, as established by judicial finding.
“(2) Offenders who are discharged from such program shall be subject to the revocation provisions of subsection (n) of K.S.A. 21-4603d, and amendments thereto.”
K.S.A. 2003 Supp. 21-4603d(n) reads in relevant part:
“Except as provided by subsection (f) of K.S.A. 21-4705, and amendments thereto, in addition to any of the above, for felony violations of K.S.A. 65-4160 or 65-4162, and amendments thereto, the court shall require the defendant who meets the requirements established in K.S.A. 2003 Supp. 21-4729, and amendments thereto, to participate in a certified drug abuse treatment program, as provided in K.S.A. 2003 Supp. 75-52, 144, and amendments thereto, including but not limited to, an approved after-care plan. If the defendant fails to participate in or has a pattern of intentional conduct that demonstrates the offenders refusal to comply with or participate in the treatment program, as established by judicial finding, the defendant shall be subject to revocation of probation and the defendant shall serve the underlying prison sentence as established in K.S.A. 21-4705, and amendments thereto. For those offenders who are convicted on or after the effective date of this act, upon completion of the underlying prison sentence, the defendant shall not be subject to a period of postrelease supervision." (Emphasis added.)
K.S.A. 2003 Supp. 22-3716(f) provides:
“Offenders who have been sentenced pursuant to K.S.A. 2003 Supp. 21-4729, and amendments thereto, and who subsequently violate a condition of the drug and alcohol abuse treatment program shall be subject to an additional nonprison sanction for any such subsequent violation. Such nonprison sanctions shall include, but not be limited to, up to 60 days in a county jail, fines, community service, intensified treatment, house arrest and electronic monitor.”
In determining whether a conflict among these statutory sections exists and how to resolve any such conflicts, it is helpful to consider certain fundamental principles of statutory interpretation.
The principal rule governing interpretation of statutes is that the legislature’s intent governs if this court can ascertain that intent. The court presumes that the legislature expressed its intent through the language of the statutory scheme. In re Adoption of G.L.V., 286 Kan. 1034, 1040-41, 190 P.3d 245 (2008). When the statutory language is plain and unambiguous, the courts therefore do not need to resort to statutory construction. In re Adoption of G.L.V., 286 Kan. at 1041.
As a general rule, this court strictly construes a criminal statute in favor of the accused, which simply means that the court reads words with their ordinary meaning. The court decides any reasonable doubt about a word’s meaning in favor of the accused. State v. Kleypas, 282 Kan. 560, 564, 147 P.3d 1058 (2006). This rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible so as to give effect to tire legislative design and intent. State v. Paul, 285 Kan. 658, 662, 175 P.3d 840 (2008).
In order to ascertain the legislative intent underlying particular statutory provisions, this court must give effect, if possible, to the entire act. It is our duty, so far as practicable, to reconcile different provisions so as to make them consistent, harmonious, and sensible. In re Adoption of G.L.V., 286 Kan. at 1041. When a conflict exists between a statute dealing generally with a subject and another statute dealing specifically with a certain phase of that subject, the specific statute controls, unless it appears that the legislature intended to make the general act controlling. State v. Williams, 250 Kan. 730, Syl. ¶ 3, 829 P.2d 892 (1992).
This court presumes that the legislature acted with full knowledge and information about the statutoiy subject matter, prior and existing law, and the judicial decisions interpreting the prior and existing law and legislation. In the same vein, we also presume that when the legislature revises an existing law, it intends to change the law that existed prior to the amendment. In re Adoption of G.L.V., 286 Kan. at 1041-42.
Keeping these principles in view, the apparent conflicts among the statutory sections are subject to resolution. Although the language is not transparent, a close reading of. the plain language of the various statutoiy provisions clarifies the requirements imposed on sentencing courts.
In the absence of other statutes, K.S.A. 2003 Supp. 21-4603d(g) would require the sentencing court to consider placement in Labette. K.S.A. 2003 Supp. 21-4729(f) states, however, that offenders shall be discharged from drug treatment programs if they exhibit a pattern of intentional conduct demonstrating refusal to comply with the programs and discharged offenders shall be subject to revocation under K.S.A. 2003 Supp. 21-4603d(n). K.S.A. 2003 Supp. 21-4603d(n) likewise states that a judicial finding of failure to comply with or participate in a treatment program shall subject the defendant to revocation of probation and the defendant shall serve the underlying prison sentence.
The statutory language “shall” generally represents a mandatoiy course of conduct. See, e.g., State v. Drayton, 285 Kan. 689, Syl. ¶ 19, 175 P.3d 861 (2008); State v. Robinson, 281 Kan. 538, 543, 132 P.3d 934 (2006). But see State v. Johnson, 286 Kan. 824, 850, 190 P.3d 207 (2008) (context of statutoiy scheme and case law may render word “shall” directory and not mandatoiy). This court has previously interpreted the word “shall” to be mandatory in the context of nonprison sanctions. See Wiegand, 275 Kan. at 846.
A judicial finding established that Bee had a pattern of intentional conduct demonstrating his refusal to comply with or participate in the treatment program. The district court was therefore required to discharge him from the drug treatment program, and K.S.A. 2003 Supp. 21-4729(f)(2) made Bee subject to K.S.A. 2003 Supp. 21-4603d(n). But even without a formal discharge, K.S.A. 2003 Supp. 21-4603d(n) required the district court to revoke Bee’s probation and to order him to serve his underlying sentence.
Although the plain language of K.S.A. 2003 Supp. 21-4603d(n) and K.S.A. 2003 Supp. 21-4729(f) appear to be in conflict with the more general requirement of K.S.A. 2003 Supp. 21-4603d(g) relating to considering Labette, two principles of statutory construction resolve that conflict. First, the drug treatment sanction constitutes a more specific phase of the nonprison sentence scheme than the requirement that the court consider Labette in both drug and nondrug cases, and the more specific statute controls. See Williams, 250 Kan. 730. Second, the drug treatment sanction was enacted after the Labette sanction statute was enacted, and the court presumes that the legislature intended to change the law with respect to considering Labette. See In re Adoption of G.L.V., 286 Kan. 1042.
Bee argues that K.S.A. 2003 Supp. 22-3716(f) is inconsistent with mandatory imposition of the underlying sentence. K.S.A. 2003 Supp. 22-3716(f) calls for additional nonprison sanctions for offenders who violate a condition of the drug treatment program. The plain language of this statutory provision does not, however, conflict with the plain language of K.S.A. 2003 Supp. 21-4603d(n) and K.S.A. 2003 Supp. 21-4729(f). K.S.A. 2003 Supp. 22-3716(f) provides for additional nonprison sanctions for violating a condition of the drug and alcohol program. This allows courts to address instances of fading to fulfill program requirements, which differs from the conduct sanctioned by K.S.A. 2003 Supp. 21-4603d(n) and K.S.A. 2003 Supp. 21-4729(f). The latter statutes address a refusal to comply with or participate in the drug treatment program and a pattern of intentional conduct.
The legislative scheme provides that an offender who may be resistant or makes mistakes while in a treatment program may continue in the program but may be subject to nonprison sanctions, such as jail time, fines, community service, intensified treatment, house arrest, or electronic monitoring as incentives to complete the program successfully. An offender sentenced pursuant to K.S.A. 21-4729 who, like Bee, totally fails to participate in the treatment program is subject to immediate imposition of the underlying prison sentence. The statute is clear that once the district court has made the requisite finding of intentional conduct of refusing to participate in drug treatment program, placement in the Labette is not a required consideration or, in most cases, a viable option for prompting successful completion of a drug treatment program and is not a substitute for imposition of the underlying prison sentence.
Bee argues that he was never discharged from the drug abuse treatment program and was therefore not subject to mandatory service of his sentence. K.S.A. 2003 Supp. 21-4603d(n) does not require discharge from a treatment program, however; it requires only a judicial finding that the defendant failed to participate in the treatment program or engaged in a pattern of intentional conduct demonstrating a refusal to comply with or participate in the program.
The State summarily dismisses the entire basis of Bee’s appeal, contending that K.S.A. 2003 Supp. 21-4603d(g), which addresses consideration of Labette, specifically excludes those drug offenses governed by K.S.A. 2003 Supp. 21-4729. A close reading of the relevant part of K.S.A. 2003 Supp. 21-4603d(g) reveals, however, that the legislature distinguished between two different types of offenses. That statute requires consideration of Labette “prior to revocation of a nonprison sanction of a defendant . . . whose offense does not meet the requirements of K.S.A. 2003 Supp. 21-4729,” or consideration of Labette “prior to revocation of a non-prison sanction of a defendant whose offense is classified in the presumptive nonprison grid block of either sentencing guideline grid.”
Bee falls in the latter category: his offense was classified in the presumptive nonprison grid block of the drug sentencing guideline grid. The word “or” is generally to be read as a disjunctive rather than a conjunctive. See, e.g., State v. Thomas; 273 Kan. 750, 753, 46 P.3d 543 (2002); Davis v. Vermillion, 173 Kan. 508, 510-11, 249 P.2d 625 (1952). The exclusion of K.S.A. 2003 Supp. 21-4729 offenders therefore does not apply to him. The State’s argument is contrary to the plain language of the statute.
Finally, at oral argument, counsel for appellant expanded the issue by maintaining that the phrase “in addition to any of the above” contained in 21-4603d(n) resolves any conflict as to whether consideration of21-4603d(g) is required. State v. Preston, 287 Kan. 181, 195 P.3d 240 (2008), a case argued on the same docket as this matter, involved the question of whether probationers sentenced under K.S.A. 21-4729 receive the same jail time credits for inpatient treatment as regular probationers. We stated that “[i]f the legislature had intended for S.B. 123 probationers to receive the same jail time credit treatment that regular probationers were then already receiving, there is no reason for the legislature to even mention jail time credit in K.S.A. 21-4603d(n).” 287 Kan. at 184. We went on to emphasize that the provisions of K.S.A. 21-4603d(n) specifically apply to offenders sentenced pursuant to 21-4729 who refuse to comply with or participate in their mandatory drug treatment program and that the provision addresses a specific violation by a subset of all probationers. 287 Kan. at 184. If the legislature had intended for the “in addition to any of the above” language to mandate the consideration of nonprison sanctions prior to imposing tire underlying sentence, it certainly could have used language that specifically instructed the court to do so. Absent such clear direction, the plain language of the statute does not require further consideration of nonprison sanctions prior to revoking probation and imposing the underlying sentence.
Reading the plain language of the nonprison sanction scheme as a whole, together with rules relating to reading specific provisions ahead of general provisions, leads to the conclusion that die district court was not required to consider the Labette option. In fact, the statutoiy scheme precludes consideration of Labette when an of fender is sentenced pursuant to K.S.A. 21-4729 and the sentencing court determines that the offender has a pattern of intentional conduct that demonstrates a refusal to comply with or participate in a drug treatment program.
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The opinion of the court was delivered by
Johnson, J.:
Central Natural Resources, Inc. (Central) appeals the district court’s order denying its motion for partial summary judgment and granting the defendants’ summary judgment motions in a quiet title action to determine ownership of methane gas in the coal formations of 16 tracts of Labette County land. Agreeing with the district court’s determination that the warranty deeds conveying the coal to Central’s predecessor in title did not convey the methane gas contained within the coal, we affirm.
FACTUAL OVERVIEW
During a period from 1924 through 1926, Central’s predecessors in interest paid money to the owners of 16 separate tracts of land in Labette County, Kansas,' in return for coal warranty deeds. All of the deeds recited that the landowners were conveying “all coal without reference to quality or quantity, . . . together with the right to mine and remove same.” The deed to one of the tracts, identified in this lawsuit as tract 12, contains a specific reservation, which recited that “it being further agreed that all rights, surface, mineral or otherwise not specifically granted herein are hereby reserved by first parties . . . together with the right to remove the same if other minerals are found.” Other differences in deed language are not germane to this opinion.
Neither Central nor any of its predecessors in title have ever exercised the right to mine and remove coal from any of the tracts. Likewise, Central has never attempted to explore for or produce the natural gas that resides within the seam of coal underlying the subject land, known as coalbed methane gas (CBM).
Three-quarters of a century after the coal transfers, the defendant oil and gas companies obtained oil and gas leases on some of the tracts. Pursuant to those leases, certain defendant companies drilled for and obtained production of CBM. Thereafter, Central filed a quiet title action, claiming ownership of the CBM in all 16 tracts through the 1924-26 coal deeds, and seeking damages for trespass and conversion for the drilling and production activities.
Counterclaims and third-party petitions were filed. The district court bifurcated the action for purposes of dispositive motions and trial, first addressing the CBM ownership issue, and then, if necessary, the court would proceed to determine and resolve all remaining issues in the case. Central moved for partial summary judgment, and various defendants moved for summary judgment. Central was permitted to amend its petition.
Subsequently, the district court issued a memorandum decision and order, granting summary judgment to the defendants on the issue of CBM ownership, i.e., finding that the deeds conveying “all coal” to Central’s predecessors in title did not transfer ownership of the CBM. However, the court clarified that its order was not intended to address the plaintiff s claim for trespass or for damages to the coalbed inflicted by defendants in the process of extracting CBM.
The district court also found that the CBM ownership issue was one of first impression, involving a controlling question of law as to which there is substantial ground for difference of opinion, and that an immediate appeal pursuant to K.S.A. 2008 Supp. 60-2102(c) could materially advance the ultimate determination of the litigation. The Court of Appeals denied the interlocutory appeal. Upon a petition for review to this court, we granted Central’s motion to docket the civil interlocutory appeal directly with the Kansas Supreme Court.
COALBED METHANE GAS
Central’s arguments rely in part on the physical properties of CBM. It stresses that CBM is created during the natural process by which coal is formed. In Amoco Production Co. v. Southern Ute Tribe, 526 U.S. 865, 872-73, 144 L. Ed. 2d 22, 119 S. Ct. 1719 (1999), the United States Supreme Court explained that process as follows:
“We begin our discussion as the parties did, with a brief overview of the chemistry and composition of coal. Coal is a heterogeneous, noncrystalline sedimentary rock composed primarily of carbonaceous materials. See, e.g., Gorbaty & Larsen, Coal Structure and Reactivity, in 3 Encyclopedia of Physical Science and Technology 437 (R. Meyers ed. 2d ed. 1992). It is formed over millions of years from decaying plant material that settles on the bottom of swamps and is converted by microbiological processes into peat. D. Van Krevelen, Coal 90 (3d ed. 1993). Over time, the resulting peat beds are buried by sedimentary deposits. As the beds sink deeper and deeper into the earth’s crust, the peat is transformed by chemical reactions which increase the carbon content of the fossilized plant material. The process in which peat transforms into coal is referred to as coalification.
“The coalification process generates methane and other gases. R. Rogers, Coalbed Methane: Principles and Practice 148 (1994). Because coal is porous, some of that gas is retained in the coal. CBM gas exists in the coal in three basic states: as free gas; as gas dissolved in the water in coal; and as gas ‘adsorped’ on the solid surface of the coal, that is, held to the surface by weak forces called van der Waals forces. These are the same three states or conditions in which gas is stored in other rock formations. Because of the large surface area of coal pores, however, a much higher proportion of the gas is adsorped on the surface of coal than is adsorped in other rock. When pressure on the coalbed is decreased, the gas in the coal formation escapes. As a result, CBM gas is released from coal as the coal is mined and brought to the surface.”
Central further urges us to consider the historical context in which the coal deeds were executed. At that time, the parties would have been well aware that coal contained a gas, sometimes referred to as “marsh gas” or “fire damp,” which posed a significant danger of explosion as the coal was being mined. Cf. Amoco, 526 U.S. at 875-76 (in 1909-10, CBM considered a dangerous waste product of coal mining which frequently sparked explosions). Statutes and regulations of the time placed a duty upon the owner/operator of a coal mine to provide for the safety of miners, including the proper control or ventilation of the CBM. Cf. Amoco, 526 U.S. at 876 (federal coal mine safety law of 1891 prescribed specific ventilation standards for coal mines of a certain depth to dilute and render harmless the noxious or poisonous gases).
Therefore, the context within which the coal deeds were executed was that CBM was a dangerous substance which had no economic value, but which, to the contrary, placed an additional burden and expense on the coal mine owner/operator to insure their miners’ safety. Moreover, as Central conceded at oral argu ment, the parties could not have been privy to the current scientific knowledge as to the manner in which CBM is adsorbed within the coal and, accordingly, would have considered the CBM to be a gas that was separate and distinct from the solid coal.
APPELLANT’S ISSUES ON APPEAL
The seemingly straightforward issue presented is whether the 1924-26 deeds, conveying “all coal . . . together with the right to mine and remove same,” should be interpreted as also transferring ownership of the methane gas contained within the coal formation. However, Central’s brief sets forth five issues.
First, Central queries “[w]hether the 1924, 1925, and 1926 warranty deeds entered into by the Defendants’ predecessors in title conveyed to Plaintiff, as grantee of the entire coal estate, the methane gas within the coal.” Central answers that question by arguing for our adoption of a “first severance rule,” coupled with the application of the “container theory,” to find, as a matter of law, that when coal is the first mineral resource severed from the fee and there is no reservation upon that initial severing conveyance, the grantee would thereafter own all and everything which is contained within the coal formation.
Central’s second issue is “[wjhether K.S.A. 58-2202 operates to convey all the estate of the grantors in the granted coal, including methane gas, where the grantors in the warranty deeds failed to expressly except rights to methane gas contained within the granted coal.” When the coal deeds were executed, essentially the same language now found in K.S.A. 58-2202 was set forth in R.S. 1923, 67-202, which provided:
“The term ‘heirs,’ or other words of inheritance, shall not be necessary to create or convey an estate in fee simple; and every conveyance of real estate shall pass all the estate of the grantor therein, unless the intent to pass a less estate shall expressly appear or be necessarily implied in the terms of the grant.” R.S. 1923, 67-202.
Central contends that the statute requires that the CBM, which is physically intertwined with the coal, will automatically pass with a conveyance of the coal, unless an intent to reserve or except the CBM expressly appears in or can be necessarily implied from the terms of the coal deed.
The next issue presented is “[w]hether the warranty deeds should be interpreted to give each deed the meaning a reasonable person would give the deed at the time of the conveyance.” Central argues that we have a legal duty to ascribe a meaning to a document that is consistent with the parties’ intent at the time the contract was made. To do that, Central lobbies for the court to employ a reasonably intelligent person standard and to permit extrinsic evidence as to the circumstances and conditions under which the contract was made, even if the instrument is unambiguous, in order to place the language of the instrument in the proper context.
Similarly, Central’s fourth issue is “[wjhether the warranty deeds must be interpreted in light of their historical context with the goal of ascertaining the objective intent of the parties in 1924, 1925, and 1926 when the conveyances were made.” Central reiterates the temporal argument that an interpretation of the deeds must seek the parties’ intent at the time of their making, not at the time of the lawsuit. Central asserts that the district court erred in considering the present-day value of CBM as an energy source, when at the time the coal deeds were made, CBM was simply a hazardous by-product of coal mining which the mine owner/operator was required by law to ventilate for the safety of the miners. Central also suggests that the district court’s application of its own context operated to impair the parties’ freedom to contract.
The final issue briefed by Central is “[wjhether the District Court erred by failing to grant ‘Plaintiff s Motion for Judicial Notice of Specific Facts.’ ” Central complains of the district court’s finding that not all of the facts contained within the voluminous data it submitted were relevant. Central contends that the district court was required by K.S.A. 60-410(b)(2) to first take judicial notice of the facts and then determine their admissibility, e.g., relevancy. Accordingly, Central asks us to grant the motion and take judicial notice of the submitted material.
STANDARD OF REVIEW
This appeal is from the district court’s rulings on the summary judgment motions. Our summary judgment standard of review is well established. See, e.g., Nungesser v. Bryant, 283 Kan. 550, 566, 153 P.3d 1277 (2007). However, the parties do not contend that there is a factual dispute. Therefore, our review is de novo. See Botkin v. Security State Bank, 281 Kan. 243, 248, 130 P.3d 92 (2006). Moreover, we are being asked to determine the legal effect of the coal deeds, which is a question of law subject to unlimited review. See Conner v. Occidental Fire & Cas. Co., 281 Kan. 875, 881, 135 P.3d 1230 (2006) (The interpretation and legal effect of a written contract are matters of law over which an appellate court has unlimited review.).
JUDICIAL NOTICE
We take the liberty of first dispensing with Central’s complaint about the district court’s ruling on the Plaintiff s Motion for Judicial Notice of Specific Facts, which with attachments was over 300 pages in length. Central apparently focuses on that portion of the memorandum decision which stated: “This Court does not believe that all of the facts contained within the data submitted by the plaintiff are relevant and therefore denies the plaintiff s request that the Court take judicial notice of all data submitted.” (Emphasis added.)
Central argues that K.S.A. 60-409(c) requires a court to take judicial notice of a matter where the proponent has followed the statutory procedure, and that K.S.A. 60-410(b)(2) precludes the court from applying an exclusionary rule, except for a valid privilege. However, Central does not dispute that the court can decline to admit evidence which it finds to be irrelevant or immaterial, regardless of whether it is judicially noticed or offered by other means, such as through live testimony. Rather, Central contends that the district court should have first established the propriety of taking judicial notice of the proffered facts, before it proceeded to determine the admissibility of the evidence, i.e., its relevance.
First, we reject Central’s characterization of the district court’s ruling. In providing a concluding summary of its findings, the court specifically stated: “Even though the Court may not have been required to consider the extrinsic evidence offered by plaintiff, it did so.” Thus, as a practical matter, Central got what it now contends that it should have received: an initial review of the proffered material and then a determination as to its relevancy or materiality to the issues presented in the case.
Next, the facts and circumstances that Central sought to establish through the judicial notice of the voluminous material attached to its motion are uncontroverted. The defendants do not dispute that: Coal mining in the late 19th century and early 20th century was dangerous and life-threatening for the miners, many of whom died as a result of explosions precipitated by CBM, then known as “fire damp,” “marsh gas,” etc.; at that time, coal mining was prevalent in Labette, Crawford, and Cherokee Counties, where miners died as a result of well-publicized explosions; one of tire initial coal deed grantees, The Central Coal & Coke Company, was involved in area coal mining; owners/operators of coal mines were statutorily required to provide for the proper ventilation and control of the “fire damp” and were subject to damages and other sanctions for violating mine safety laws; and the purchasing power of a dollar today is much less than it was in 1924.
Finally, as will be discussed below, the proffered material does not support the conclusions which Central would have us draw from those facts. In short, a detailed analysis of Central’s complaint about the district court’s handling of its judicial notice motion is unnecessary for tire resolution of this case.
PROPOSED LEGAL THEORY
Central’s first tack is to propose that we adopt a “first severance/ container theory” rule of law. Under that “rule,” if a coal deed is the first conveyance which severs any mineral interest from the fee simple absolute estate, the grantee acquires ownership of everything that is contained within the coal formation, unless the deed contains a specific reservation of other minerals. Here, the only deed to contain a specific reservation was the coal deed conveying tract 12. However, Central does not provide a separate argument about that distinctive conveyance. Accordingly, we will not sepa rately analyze the effect of that reservation. See Titterington v. Brooke Insurance, 277 Kan. 888, Syl. ¶ 3, 89 P.3d 643 (2004) (point incidentally raised but not argued is deemed abandoned).
Central relies on case law from Alabama, Illinois, and Pennsylvania, contending that those states have adopted the “container theory.” See Vines v. McKenzie Methane Corp., 619 So. 2d 1305 (Ala. 1993); Continental Resources v. Illinois Methane, 364 Ill. App. 3d 691, 847 N.E.2d 897 (2006); United States Steel Corp. v. Hoge, 503 Pa. 140, 468 A.2d 1380 (1983). However, other jurisdictions have held that the ownership of coal does not include the ownership of CBM. See Michael F. Geiger, LLC v. United States, 456 F. Supp. 2d 885, 886 (W.D. Ky. 2006); Carbon County v. Union Reserve Coal Co., 271 Mont. 459, 898 P.2d 680 (1995); Harrison-Wyatt, LLC v. Ratliff, 267 Va. 549, 593 S.E.2d 234 (2004). Decisions in Wyoming have gone both ways, focusing on the facts and circumstances of each particular deed. See Mullinnix LLC v. HKB Royalty Trust, 126 P.3d 909 (Wyo. 2006); Caballo Coal v. Fidelity Exploration, 84 P.3d 311 (Wyo. 2004); Hickman v. Groves, 71 P.3d 256 (Wyo. 2003); McGee v. Caballo Coal Co., 69 P.3d 908 (Wyo. 2003); Newman v. RAG Wyoming Land Co., 53 P.3d 540 (Wyo. 2002). Given the unique facts of each case, together with differing state laws, the cases from other states are not easily synthesized or particularly persuasive.
In this state, all minerals belong to the landowner and are considered part of the realty so long as they reside on, in, or under the land. However, “[w]hen they escape and go into other lands, or come under another’s control, the title of the former owner is gone.” Zinc Co. v. Freeman, 68 Kan. 691, 696, 75 Pac. 995 (1904). A severance of the surface and mineral rights is accomplished by either a conveyance of the land with an express reservation of the minerals, or by a conveyance of the mineral or mining rights. After the severance, two separate estates exist, each being a distinct freehold estate of inheritance. The surface and the mineral rights are held by separate titles in severally. Mining Co. v. Atkinson, 85 Kan. 357, 360, 116 P. 499 (1911); Moore v. Griffin, 72 Kan. 164, 167-68, 83 Pac. 395 (1905); see also Rathbun v. Williams, 154 Kan. 601, 604, 121 P.2d 243 (1942) (“[W]henever the mineral interest in land is owned separately from the surface rights, each interest is regarded as real estate and taxed separately to the respective owners thereof.”).
Central’s argument recognizes that the mineral interest in land can be further divided by severing a particular mineral. Cf. Shaffer v. Kansas Farmers Union Royalty Co., 146 Kan. 84, 89, 69 P.2d 4 (1937) (owner of land can convey all of it or a part of it; can divide property vertically or horizontally). In other words, only one mineral, such as coal, can be conveyed, resulting in different entities owning different minerals. Indeed, at oral argument, Central acknowledged that the coal deeds did not give it ownership of the gas which had escaped from the coalbed, i.e., it does not claim to own all of the gas under the subject real estate. Thus, Central’s theory would effect a split ownership of all the remaining minerals, with the landowner still owning all noncoal minerals except those that may be located within a seam of coal, even though the deeds did not explicitly convey any mineral other than coal.
Pointedly, the coal deeds did not purport to convey any particular stratum or horizon, c.g., the Pittsburg-Weir formation. They conveyed all the coal, wherever situated, presumably because there might be several seams of coal underlying the property. Nevertheless, Central claims that the coal deeds must, by necessity, convey the entire stratum because the mining of the coal consumes all of the structure and destroys all of the minerals within the stratum. Granted, each deed specifically grants the right to mine and remove the coal, which would permit the removal of the entire stratum, plus such of the surrounding strata as may be necessary to effect the coal removal. However, that right does not convey ownership of the entire stratum, any more than it conveys ownership of the dirt and rock outside the coalbed which might be removed to allow for a safe mining operation.
Moreover, Central offers nothing persuasive to recommend the adoption of its proffered temporal rule, which gives the grantee of the first mineral interest to be severed superior rights in and to the other minerals conveyed to another grantee (or still held by the landowner) simply based on the timing of the deed. While a “first-in-time, first-in-right” rule is a logical manner in which to deal with competing claims to the same property, it makes scant sense as a rule to enlarge or expand the property conveyed beyond that which was described in the deed.
In short, we decline to adopt an artificial rule of law mandating that a conveyance of all coal, with the right to remove and mine the same, always effects a transfer of everything that may be contained within the strata where coal may be found. Rather, if a coal deed is to include the CBM, that inclusion must emanate from the parties’ intent.
RULES OF DEED INTERPRETATION
As an alternative to its proposed first severance/container theory rule of law, Central argues that the deeds should be interpreted as manifesting an intent to convey the CBM. The district court found that the parties to the deeds did not contemplate the transfer of CBM, because at that time, it was simply a dangerous by-product of coal mining. Central asks us to revamp the way in which we interpret deeds in order to divine such an intent.
We have well-established rules that are applied to the interpretation of both deeds and contracts. See Hall v. Mullen, 234 Kan. 1031, 678 P.2d 169 (1984). The primary consideration, when construing the meaning of a deed, is the intention of the grantor as gathered from an examination of the instrument as a whole. Bennett v. Humphreys, 159 Kan. 416, 419, 155 P.2d 431 (1945).
We ordinarily recite that the first step is to determine whether the instrument is ambiguous. Wood River Pipeline Co. v. Willbros Energy Services Co., 241 Kan. 580, 582, 738 P.2d 866 (1987). In doing so, we apply the plain, general, and common meaning of the terms used in the instrument. Johnson v. Johnson, 7 Kan. App. 2d 538, 542, 645 P.2d 911, rev. denied 231 Kan. 800 (1982). We refrain from adding words into the instrument which would impart an intent that was wholly unexpressed when it was executed. Quenzer v. Quenzer, 225 Kan. 83, 85, 587 P.2d 880 (1978). In other words, we strive to determine the document’s meaning and the parties’ intent from within its four comers; we consider, construe, and harmonize the entire instmment without isolating any one par ticular sentence or provision. In re Estate of Kruckenberg, 171 Kan. 450, 454, 233 P.2d 472 (1951).
An instrument is ambiguous when the application of pertinent rules of interpretation to the whole “fails to make certain which one of two or more meanings is conveyed by the words employed by the parties. [Citations, omitted.]” Wood v. Hatcher, 199 Kan. 238, 242, 428 P.2d 799 (1967). If we find ambiguity, then
“ ‘ “facts and circumstances existing prior to and contemporaneously with its execution are competent to clarify the intent and purpose of the contract in that regard, but not for the purpose of varying and nullifying its clear and positive provisions.” [Citations omitted.]’ First Nat’l Bank of Olathe v. Clark, 226 Kan. 619, 624, 602 P.2d 1299 (1979).” Butts v. Lawrence, 22 Kan. App. 2d 468, 473, 919 P.2d 363 (1996).
See also Hall v. Mullen, 234 Kan. 1031, 1037-38, 678 P.2d 169 (1984) (same). We have also looked at the parties’ subsequent conduct where their actions manifested a mutual understanding of the contract’s meaning. See Cline v. Angle, 216 Kan. 328, 333-34, 532 P.2d 1093 (1975).
Central challenges the efficacy of our long-standing rules of interpretation, declaring that “[t]he most fickle of the analytical tools used to ‘interpret’ documents is the declaration that a document is either ‘ambiguous’ or ‘unambiguous.’ ” It argues that extrinsic evidence is always necessary to establish a context for ascribing a meaning to the words the parties employed. Central then points out that, although the district court in this case declared the deed language to be unambiguous, it nevertheless was required to resort to extrinsic evidence when it referred to the dictionary definition of “coal” and relied upon information contained in appellate cases from Montana and Wyoming. Of course, information gleaned from treatises or appellate opinions is not generally considered to be extrinsic evidence.
However, we do agree that whenever one endeavors to ascertain the meaning of written words, it is necessary to consider them within the context that they are used. Hence, we examine the whole document when determining its meaning. Moreover, certain terms may have a commonly understood meaning within a trade or industry, so that a commercial contract between parties that are reg ularly engaged in that trade or industry would be construed in the context of that common usage. However, that does not mean that the words employed are, inherently, always ambiguous, i.e., subject to two or more meanings. The ambiguity analysis endeavors to simply give effect to what the parties actually said they meant at the time of contracting. We are not prepared to abandon that analytical tool.
Likewise, we decline Central’s invitation to divine from selected statements in prior cases a reasonably intelligent business person interpretive model. Our focus is to discern the actual agreement between these particular people, rather than what was the most intelligent agreement which could have been reached. Therefore, we see no need to change our long-standing interpretive process, which has been expressed as follows:
“A rule for the construction of deeds as well as wills, to which all other rules are subordinate, is that the intention of the grantors as garnered from all parts of the deed is to be given effect, and that doubtful or inaccurate expressions in a deed shall not override the obvious intention of the grantors. In construing a deed, the court puts itself as nearly as possible in the situation of the grantors when they made the deed and, from a consideration of that situation and from the language used in each part of the deed, determine as best it can the purpose of the grantors and the intentions they endeavored to convey. [Citations omitted.]” Davis v. Vermillion, 173 Kan. 508, 510, 249 P.2d 625 (1952).
APPLICATION OF R.S. 1923, 67-202
Central also contends that the provisions of R.S. 1923, 67-202, the predecessor to K.S.A. 58-2202, control the extent of the property transferred by the coal deeds, notwithstanding any problem ascertaining the parties’ intent. As noted above, that statute provided, in relevant part, that “every conveyance of real estate shall pass all the estate of the grantor therein, unless the intent to pass a less estate shall expressly appear or be necessarily implied in the terms of the grant.” R.S. 1923, 67-202. Our interpretation of that statute is a question of law, subject to unlimited review, and unconstrained by the district court’s interpretation. LSF Franchise REO I v. Emporia Restaurants, Inc., 283 Kan. 13, 19, 152 P.3d 34 (2007).
Central argues that the statute provides a presumption that the transfer of the “coal estate,” together with the right to mine and remove the coal, transfers all of the grantors’ interest in that estate, in the absence of an express reservation. Then, to make the argument work, Central declares that CBM is a part of the “coal estate” because it is a byproduct of the coalification process, it exists as part of the coal seam, and it is released as part of the coal mining process. We find the argument unavailing on more than one level.
The purpose of the statutory provision at issue is to clarify that a real estate conveyance passes all of the grantor’s interest in the land, unless an intent to pass a lesser interest is manifested in the terms of the grant. See Platt v. Woodland, 121 Kan. 291, 298, 246 Pac. 1017 (1926). For instance, in the cases relied upon by Central, Fast v. Fast, 209 Kan. 24, 29, 496 P.2d 171 (1972), and Brungardt v. Smith, 178 Kan. 629, 637-38, 290 P.2d 1039 (1955), the provision was applied to clarify that the grantors conveyed all the interest they owned in the subject real estate, because the deeds did not express an intent to retain any interest.
In this case, the grantors owned the entire fee simple absolute in the subject real estate. Obviously, the coal deeds did not pass all of that interest to Central’s predecessors. By the express terms of the coal deeds, each grantor stated an intent to pass a lesser estate, i.e., only the coal. Given that the deeds expressly tell us that not all of the grantors’ estates passed to the grantees, we need not resort to the statutory presumption.
Even if the statute could be construed as meaning that a conveyance of a lesser estate passes all of the grantor’s interest in that lesser estate, it would not help in this instance. No one disputes that the deeds conveyed all of the grantors’ interests in the coal. The disconnect in Central’s argument is its declaration that CBM is part of the “coal estate.”
Central does not dispute that coal, CBM, and oil are separate minerals which have different chemical compositions and which exist in different states, i.e., solid, gas, and liquid. However, it points out that CBM is produced by the coalification process, implying that the common origin makes the gas part of the coal estate. At oral argument, Central acknowledged that the gas which has escaped from the coalbed is not part of the “coal estate,” but rather it is part of a “gas estate” which defendants have a right to produce. Of course, the escaped gas was formed in exactly the same manner as the gas which is currently held captive by the pressure on the coalbed. Thus, the genesis of CBM is not determinative.
Likewise, the argument that CBM is contained within the coalbed is not compelling. Gas is stored in all rock formations in the same three states or conditions as it is found in the coalbed: as free gas, dissolved in the water in the coal, and adsorbed on tire solid surface of the coal. See Amoco, 526 U.S. at 873. Granted, the large surface area of coal pores results in a higher proportion of the gas being adsorbed in a coal formation. Nevertheless, the physical description of a mineral should not turn on the quantity that is present in a particular source rock or formation.
Further, the fact that CBM escapes during the traditional coal mining operation does not persuade us that gas is coal. Today, it is apparently possible to drill from the surface and relieve the pressure, allowing the CBM to “desorb” and be collected, while leaving the coal rock in place. While Central complains that such a process invades and damages the coalbed, the issue of whether the gas producer must compensate the coal owner for damages resulting from the process of liberating the gas is not before us. The point is that CBM is a gas that can be produced without mining the coal rock, contradicting the assertion that the CBM is part and parcel of the “coal estate.”
In short, we reject tire notion that “all coal” should be read as meaning a “coal estate” that includes such of the natural gas which may be currently held captive within the coal formation. Therefore, CBM is not statutorily presumed to be conveyed by a grant of “all coal.”
THE PARTIES’ INTENT
Having rejected Central’s proffered matter of law approach and declined the invitation to reform our rales for construing deeds, we proceed to determine what property the parties intended to pass by the coal deeds. In doing so, this court must put itself
“as nearly as possible in the situation of the grantors when they made the deed and, from a consideration of that situation and from the language used in each part of the deed, determine as best it can the purpose of the grantors and the intentions they endeavored to convey. [Citations omitted.]” Davis, 173 Kan. at 510.
As Central painstakingly sets forth in its brief, at tire time of the subject deeds, the parties would have been aware that a gas, commonly referred to as “fire damp” or “marsh gas,” was released during the process of digging coal out of the ground and that the gas was a source of great danger to life in coal mines. See Amoco, 526 U.S. at 874. They would not have been privy to our current scientific knowledge about the manner in which a portion of tire CBM remains captive within the coal, i.e., adsorbed to the surface of the rock. Rather, the common understanding at that time was that the term “coal” did not encompass CBM, “both because it is a gas rather than a solid mineral and because it was understood as a distinct substance that escaped from coal as the coal was mined, rather than as a part of the coal itself.” Amoco, 526 U.S. at 874-75. Therefore, the facts and circumstances existing in 1924-26 would suggest that a grantor s use of the term, “coal,” was intended to refer only to the solid mineral. Accordingly, a grantor would have no reason to include a reservation of gas in a coal deed.
Moreover, the primary energy source of that era was coal. See Amoco, 526 U.S. at 875 (“In contrast to natural gas, which was not yet an important source of fuel at the turn of the century, coal was the primary energy for the Industrial Revolution.”). In historical context, the obvious purpose of the coal deeds was to effect the sale of the commodity which was valuable at the time, i.e., coal. In reality, the parties to the coal deeds probably had no specific intent regarding other unspecified minerals, such as coalbed methane. Pierce, Evaluating the Jurisprudential Bases for Ascertaining or Defining Coalbed Methane Ownership, 4 Wyo. L. Rev. 607 (2004).
Central points out that the deeds specifically granted its predecessors “the right to mine and remove [the coal].” It suggests that the circumstances under which that right would have been executed should indicate to us that the parties impliedly intended for the CBM ownership to pass to the coal deed grantees. Central contends that the evidence it proffered for judicial notice supports that theory. We disagree.
Central wants us to consider that CBM was dangerous and life threatening for the miners and that the mine operator had a legal duty to ventilate and control the gas during the mining process. It then argues that a landowner surely would not have intended to reserve ownership of such a deadly substance. But, of course, on the flip side, one would not expect a grantee to voluntarily seek full ownership of the CBM, knowing it to be a worthless and hazardous material. To the contrary, one would suspect that a mine operator in those days would have been ecstatic if the landowner had removed the CBM prior to the commencement of mining operations, thus relieving the operator of the cost of meeting its legal responsibility to dispose of the gas.
Central also points out that, under the technology existing at that time, the process of mining and removing the coal resulted in the destruction or loss of all the CBM. Therefore, the argument continues, the parties must have intended that the CBM ownership would pass with the coal deeds. We do not reach the same conclusion. Obviously, the parties expected the CBM in a particular seam to escape while the grantee was exercising the right to mine and remove the coal from that coalbed. However, they would have considered that as a necessary consequence of the mining operation. From the deed language, we cannot divine that the grantors contemplated that the grantee could separately own and produce the CBM without exercising the right to mine and remove the coal, i.e., drill from the surface and remove CBM while leaving the coal in place.
Curiously, Central makes the economic argument that the “facts existing at die time of the conveyances make it wholly unreasonable to suggest that Central would have paid what in today s dollars would be $841,104.24 for ‘all coal’ but not intend to obtain all rights to methane gas known to exist within the coal.” The major premise Central strives to establish with its historical material is that CBM was an extremely hazardous material which it was legally and economically responsible for controlling during the mining process. The conclusion that a portion of the coal purchase price was alio cated to obtaining ownership of the CBM does not follow from that premise. To the contrary, one would expect the additional operational expense caused by the CBM to be a deduction from the purchase price, rather than an addition. By way of analogy, if a rancher purchased a pasture containing noxious weeds which by law must be eradicated, one would not say that the rancher paid a portion of the purchase price to obtain ownership of the burdensome weeds.
In short, at the time the coal deeds were executed, the purpose of each grantor was to consummate the sale of the solid mineral coal. CBM was simply a hazardous by-product of the coal mining process. The parties did not intend, either expressly or impliedly, for the coal deeds to pass ownership of the CBM. The district court’s granting of summary judgment on the issue of ownership is affirmed.
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The opinion of the court was delivered by
Miller, J.:
This is an appeal by defendant, Kansas Public Service Company, from a judgment entered against it and in favor of the plaintiff, LeRoy McDermott, following a jury trial in Douglas County. This is a companion case to Kearney v. Kansas Public Service Co., 233 Kan. 492, 665 P.2d 757 (1983). This case was consolidated with the Kearney case for the purpose of that appeal.
On December 15, 1977, McDermott was the lessee of a third-floor apartment in a building commonly known as 747 Massachusetts Street, Lawrence, Kansas. Shortly after midnight on that date, defendant’s two-inch plastic gas main under the alley behind the building pulled out of a compression coupling which joined it to a steel gas main. Natural gas escaped through the separation and flowed into the building where plaintiff leased his apartment. Within an hour after the separation the accumulated gas exploded, and the building, including plaintiff s apartment, was damaged by the explosion and the resulting fire. For further factual background as to the cause of the catastrophe, we refer to Justice Holmes’ opinion in Kearney.
There are two principal issues on this appeal. First, defendant contends that the trial court erred in submitting the issue of punitive damages to the jury when that issue was previously submitted to and determined by a jury in Kearney, and second, defendant claims that the trial court erred in finding that collateral estoppel barred the defendant from relitigating the issue of liability, and consequently that the court erred in refusing to submit that issue to the jury.
The Kearney jury, in addition to awarding compensatory damages, returned a verdict in favor of the plaintiffs in that case, Edgar Dale Kearney and Helen C. Kearney, for $80,000 in punitive damages. The issue was submitted under the usual instruction:
“If you find that the conduct of the defendant Kansas Public Service Company was wanton, then in addition to the actual damages to which you find plaintiff entitled, you may award plaintiff an additional amount as punitive damages in such sum as you believe will serve to punish defendant Kansas Public Service Company and to deter others from like conduct.”
In the present case the issue was submitted to the jury under the following instruction:
“If you find that the conduct of the defendant was wanton, then in addition to the actual damages to which you find the plaintiff is entitled, you may award plaintiff an additional amount as punitive damages in such sum as you feel will serve to punish the defendant and to deter others from like conduct.
”An act performed or omission made with a realization of the imminence of danger and a reckless disregard or complete indifference to the probable consequences of the act or omission is a ‘wanton’ act.
“These damages may not exceed $200,000.00, this being the amount of plaintiffs claim.”
The jury returned a verdict in favor of the plaintiff, LeRoy McDermott, for the loss of academic materials and other personal property in the amount of $100,348, and for punitive damages in the amount of $100,000.
Kansas Public Service (hereafter KPS) calls our attention to three factors in support of its first argument. It first points out the nature and purpose of punitive damages. We agree that punitive damages, by definition, are not a right of every plaintiff, but are awarded in certain cases to punish the defendant and not to compensate the plaintiff. In Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, Syl ¶ 17, 681 P.2d 1038, cert. denied 105 S.Ct. 365 (1984), we stated the principle as follows:
“Punitive damages are allowed not because of any special merit in the injured party’s case, but are imposed to punish the wrongdoer for malicious, vindictive or willful and wanton invasion of the injured party’s rights, the purpose being to restrain and deter others from the commission of like wrongs.”
See also Newport v. Fact Concerts, Inc., 453 U.S. 247, 266-67, 69 L.Ed.2d 616, 101 S.Ct. 2748 (1981), where the United States Supreme Court said:
“Punitive damages by definition are not intended to compensate the injured party, but rather to punish the tortfeasor whose wrongful action was intentional or malicious, and to deter him and others from similar extreme conduct. See Restatement (Second) of Torts § 908 (1979); W. Prosser, Law of Torts 9-10 (4th ed 1971).”
KPS also points to the fact, noted above, that punitive damages have already been assessed against it, and finally, KPS contends that it is being punished for the same act for which it was punished in Kearney. Both cases arose due to damages caused by the same explosion and resulting fire, the result of defendant’s failure to properly connect a plastic pipe to a steel gas main.
Defendant and amicus curiae both cite a number of cases that discuss a concern over multiple punitive damage awards. One of the first cases to reflect this concern was Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832 (2d Cir. 1967). That was a products liability action for personal injuries resulting from the use of a drug manufactured by the defendant. Both compensatory and punitive damages were claimed. More than 1500 such lawsuits were filed. The Roginsky court was concerned that an award of punitive damages in a large number of those cases would be staggering. The Roginsky court disallowed the award of punitive damages, however, not because of the multiplicity of punitive claims but because the evidence presented on trial was not sufficient to allow the issue to go to the jury. In a later Oregon case, State ex rel. Young v. Crookham, 290 Or. 61, 618 P.2d 1268 (1980), the court discussed Roginsky and said:
“Hindsight demonstrates that the apprehension of the Roginsky court was heavily exaggerated. Of the 1,500 cases, in only 3 did juries award punitive damages. The vast majority of cases were settled and the financial destruction feared by the Second Circuit did not come to pass.” 290 Or. at 66.
In State ex rel. Young v. Crookham, the Oregon Supreme Court faced the issue of whether Oregon should adopt the “one bite” or “first comer” theory, so that the award of punitive damages to the first plaintiff would preclude the recovery of punitive damages for all subsequent plaintiffs. In a lucid and well-reasoned opinion, Oregon rejected the “one bite” theory, concluding that such a rule would threaten to reduce civil justice to a race to the courthouse steps, would provide a windfall to'the first plaintiff, and would not be fair. The court points out possible alternatives such as class actions, remittitur, total elimination of punitive damages in mass litigation, and jury consideration of earlier and possible future punitive awards in each case. We have found no case holding that a plaintiff is prohibited from recovering punitive damages from a defendant merely because a previous plaintiff has recovered punitive damages from the same defendant based on the same conduct. Our Court of Appeals faced the same issue in U.S.D. No. 490 v. Celotex Corp., 6 Kan. App. 2d 346, 629 P.2d 196, rev. denied 230 Kan. 819 (1981). In that case, Celotex argued that a mass-marketer should not be subject to a multiplicity of punitive damage awards when the alleged misconduct does not give rise to damages different in kind and degree from those suffered by all other users affected by the product. The Court of Appeals stated:
“While Roginsky certainly provides some support for Celotex’s position, it is by no means dispositive of the issue. Alternative solutions exist that allow punitive damages to be awarded in a products liability situation without running into the problems that were anticipated in Roginsky. See Owen, Punitive Damages in Products Liability Litigation, 74 Mich. L. Rev. 1258 (1976). Restatement (Second) of Torts § 908(e) (1979) states in relevant part:
“ ‘Another factor that may affect the amount of punitive damages is the existence of multiple claims by numerous persons affected by the wrongdoer’s conduct. It seems appropriate to take into consideration both the punitive damages that have been awarded in prior suits and those that may be granted in the future, with greater weight being given to the prior awards. In a class action involving all claims, full assessment of the punitive damages can be made.’
“In Will v. Hughes, 172 Kan. 45, 238 P.2d 478 (1951), the Kansas Supreme Court stated that a defendant has the right to consideration of any mitigating circumstances that might operate to reduce punitive damages without wholly defeating them (Syl. ¶ 10). See Cantrell v. R. D. Werner Co., 226 Kan. 681, 686, 602 P.2d 1326 (1979); Henderson v. Hassur, 225 Kan. 678, 694, 594 P.2d 650 (1979). As USD 490 points out in its brief, Celotex had available numerous witnesses who for the purpose of mitigating the punitive damages here might have testified about the cases going on across the country with similar claims of punitive damages. Celotex, however, for tactical reasons, chose not to present such evidence to the jury. Although a considerable number of cases are pending, so far as we know only one punitive damage award against Celotex has been reviewed and affirmed by an appellate court as of this time (Campus Sweater and Sportswear Co. v. M. B. Kahn Constr. Co., et al., [4th Cir.] No. 79-1724, decided February 26, 1981 [unpublished]). Based on the record before us, we do not find error on this issue.” 6 Kan. App. 2d at 355.
We share the concern of other courts that a multiplicity of suits arising out of the act, if all resulted in punitive damage awards, could bankrupt a defendant. As one court observed, the purpose of punitive damages is to sting, not to kill, a defendant. In re No. Dist. of Cal. “Daikon Shield” IUD Products, 526 F. Supp. 887 (N.D. Cal. 1981), vacated on other grounds 693 F.2d 847 (9th Cir. 1982), cert. denied 459 U.S. 1171 (1983). There is, however, an important distinction between the cases discussed above and cited by KPS and amicus curiae and the case at hand. Here, there were thirteen cases and there is no showing that other claims are anticipated. Eleven cases have been disposed of by settlement. One has been reduced to judgment, and that judgment is final. Punitive damages were awarded in that case and in this. It would appear that no further claims for punitive damages are anticipated. While in the Kearney trial all of the facts of the explosion and fire may have been disclosed, the extent of the damages sustained and the personal injuries, if any, were not fully disclosed. The facts of the losses of this plaintiff were not before the Kearney jury. That jury simply did not have the full picture.
In cases of a common disaster such as the explosion and fire here, where all of the cases are pending in a single court, it seems to us that justice would be best served, and judicial effort best conserved, by consolidating the cases for determination of liability, wantonness, and punitive damages. That was not done in this case; we were told on oral argument that defendant opposed consolidation in the trial court.
Defendant also presents two other arguments concerning punitive damages. It contends that a second award of punitive damages is violative of due process because of such an award’s quasi-criminal nature. A similar argument was made in Celotex, and on that point the Court of Appeals said:
“Celotex presents the novel argument that the imposition of punitive damages against Celotex, an interstate mass-marketer, violates its constitutional guarantee of due process, its right to protection against double jeopardy, and subjects it to cruel and unusual punishment. The imposition of punitive damage awards, although penal in nature, does not approach the severity of criminal sanctions and does not demand the same safeguards as do criminal prosecutions. See Comment, Criminal Safeguards and the Punitive Damages Defendant, 34 Univ. Chicago L. Rev. 408 (1967).” 6 Kan. App. 2d at 355-56.
Defendant cites several cases in support of this argument, but all of those cases are concerned with the award of both punitive damages and treble damages under applicable state statutes. We find them unpersuasive. We agree with the Court of Appeals and find no due process violation.
Finally, on this point, KPS argues that the doctrine of collateral estoppel precludes a relitigation of the punitive damage issue in this case, it having been litigated and determined in Kearney. For reasons to be stated later in this opinion, we hold that the determination of that issue in Kearney is no bar to its submission in this case between different parties — McDermott and KPS as opposed to the Kearneys and KPS.
It has long been the law of this state that punitive or exemplary damages may be awarded where the cause of action is founded upon gross negligence or wantonness. Leavenworth, L. & G. R. Co. v. Rice, 10 Kan. *426 (1872); and see Wiley v. Keokuk, 6 Kan. *94 (1870); and Malone v. Murphy, 2 Kan. *250 (1864). After considering all of the arguments on this point, we hold that whether punitive damages may be recovered in a second action between different plaintiffs and the same defendants must be determined on a case-by-case basis; and on the basis of the facts in this case we hold that the trial court did not err in submitting the issue of punitive damages to the jury.
We turn now to the determinative issue, whether the trial court erred in finding that collateral estoppel barred KPS from litigating the issue of liability, and thus whether the court erred in refusing to submit that issue to the jury. After our opinion came down in Kearney, McDermott filed a motion for partial summary judgment on the issue of liability. After the matter was submitted, the trial court sustained plaintiffs motion, expressing its views in the following Memorandum of Decision:
“Plaintiff s motion for partial summary judgment on the question of liability raises the legal issue of whether the doctrine of collateral estoppel precludes the trial of the liability issue in this case. Plaintiff claims it does.
“The'defendant argues that mutuality is a necessary prerequisite for use of the doctrine of collateral estoppel. Defendant cites as authority Williams vs. Evans, 220 Kan. 394, and the Williams progeny for the mutuality argument in negligence cases, and Wells vs. Davis, 226 Kan. 586 as authority in non-negligence cases. The Court has no quarrel with the mutuality requirement or defendant’s citations, however, those cases involving negligence were not decided by comparative fault law, and both plaintiff and defendant have failed to cite the case that is directly on point and resolves the issue.
“The instant case was consolidated on appeal with Kearney vs. Kansas Public Service Company, 233 Kan. 492 (opinion filed June 10, 1983) in which KPS raised the same issue, i.e., the requirement that mutuality of parties was necessary to invoke the collateral estoppel doctrine and that mutuality of parties does not exist because there are different plaintiffs in the cases consolidated for appeal. Ibid, 511. The response to that argument then, as now, is there is no assertion that plaintiff was at fault in any way and the only issue of liability for trial is the degree of fault of the three codefendants. The interests of the three codefendants in Kearney were adverse and the degree of their respective fault was determined in that case. As stated by the Court in Kearney, at p. 511:
“Thus mutuality of parties does exist on the issue of the respective liability of KPS, du Pont and Dresser as among themselves. That liability has been finally determined in the Kearney case and is binding upon KPS, du Pont and Dresser in all other litigation growing out of the same occurrence.
“That succinct statement of Justice Holmes determines the issue. The plaintiff s motion for partial summary judgment is granted. Liability is not an issue for trial in this case — it having been determined that KPS was 100 percent at fault.” (Emphasis in original.)
When this case was tried, the court instructed the jury, over defendant’s objection, that it would not be required to find liability or fault on the part of the defendant “as liability of the defendant has been determined in a previous case for the December 15, 1977, explosion and fire.” The trial court instructed the jury that its instructions on duties of the defendant were being given solely for the purpose of permitting the jury to determine whether the conduct of KPS was wanton.
A discussion of this issue requires an inquiry as to the procedural background of the Kearney appeal. The Kearneys brought action against KPS, du Pont and Dresser Industries, claiming negligence on the part of each of the three defendants. The jury brought in a verdict in which it determined that 100% of the causal negligence was chargeable to KPS, and none was chargeable to du Pont and Dresser Industries. Du Pont and Dresser then filed motions for summary judgment in the remaining pending cases, including this one, and the trial court sustained those motions. KPS took separate appeals from the trial court’s ruling on those motions, as well as the judgment rendered in Kearney, and all of the appeals were consolidated in this court and determined in Kearney. It is important to note that McDermott did not appeal the trial court’s ruling granting du Pont and Dresser Industries summary judgment; none of the plaintiffs in the related cases complained of the trial court’s ruling absolving those two defendants from liability. The only appeal from those rulings was taken by KPS. In the opinion, we said:
“The fact that there were no cross-claims or adversarial pleadings on file among the defendants in Kearney does not preclude the application of the doctrine of collateral estoppel where the codefendants were actual adverse parties. [Emphasis supplied.]
“KPS next asserts that the requirement of mutuality of parties does not exist because there are different plaintiffs in the ten cases. In none of the cases was there any assertion that any of the plaintiffs were at fault in any way and the only issue of liability for trial was the degree of fault of the three codefendants. Thus mutuality of parties does exist on the issue of the respective liability of KPS, du Pont and Dresser as among themselves. That liability has been finally determined in the Kearney case and is binding upon KPS, du Pont and Dresser in all other litigation growing out of the same occurrence. [Emphasis in original.]
“In the trial of the Kearney case all defendants fully litigated the issues of their respective liability and that case has now been finally determined. Under the facts of these cases where there were no claims by any defendants in any of the cases that any of the plaintiffs were negligent or at fault and the only issues thereon were among the three codefendants, there existed mutuality and identity of the parties sufficient to invoke collateral estoppel in the later cases. We are not called upon and do not here decide whether mutuality of estoppel is still a valid requirement for the application of the doctrine of collateral estoppel in other cases. [Emphasis in original.]
“The record in Kearney clearly shows that KPS, du Pont and Dresser had a full, fair and complete opportunity to litigate the issue of negligence and that in fact that issue was fully and fairly litigated. There is no need to do it again. The trial court did not commit error in granting summary judgment in the ten consolidated cases in favor of du Pont and Dresser on the basis of collateral estoppel based upon the decision in Kearney, where there were no issues of possible liability by any of the plaintiffs or any other parties other than the three codefendants. Under the factual situation which existed in Kearney and the ten consolidated cases, the factors to invoke collateral estoppel are present. We make no determination of the applicability of the doctrine of collateral estoppel when other parties, such as the various plaintiffs in the present cases, are alleged to have been negligent.” (Emphasis supplied.) 233 Kan. at 511-13.
Throughout that portion of the Kearney opinion quoted above, we emphasized that mutuality of parties does exist as among KPS, du Pont and Dresser Industries, and that those defendants had a full, fair and complete opportunity to litigate the issue of negligence as among themselves. The plaintiffs in the various actions arising out of the explosion did not appeal from the trial court’s decision absolving du Pont and Dresser from liability in the companion cases. The only objection came by KPS — and KPS had had a “full, fair and complete” opportunity to litigate the issue. Insofar as the non-objecting plaintiffs were concerned, the order of the trial court entering summary judgment on behalf of du Pont and Dresser became the law of the case. McDermott makes no objection here as to that order. In Kearney, however, we did not go so far as to determine the issue here raised— whether the jury’s verdict fixing the liability on KPS in Kearney makes that issue res judicata in the actions brought by other plaintiffs.
McDermott, of course, was not a party to Kearney when that case was tried. In the present case, the plaintiffs use of collateral estoppel was offensive. It precluded the defendant, in this case, from asserting a defense which the defendant had unsuccessfully asserted in Kearney. In Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 4, 58 L.Ed.2d 552, 99 S. Ct. 645 (1979), the court said:
“[Offensive use of collateral estoppel occurs when the plaintiff seeks to foreclose the defendant from litigating an issue the defendant has previously litigated unsuccessfully in an action with another party. Defensive use occurs when a defendant seeks to prevent a plaintiff from asserting a claim the plaintiff has previously litigated and lost against another defendant.”
The offensive use of collateral estoppel was before this court in the case of Adamson v. Hill, 202 Kan. 482, 449 P.2d 536 (1969). Plaintiff, riding as a passenger in an automobile driven by her husband, was involved in a collision with a vehicle driven by the defendant, Hill. Both Mr. and Mrs. Adamson brought suit for personal injuries. The husband’s suit was tried first, and eventually resulted in a judgment in his favor. Mrs. Adamson then filed a motion for partial summary judgment, alleging that defendant’s negligence and her husband’s contributory negligence had already been determined adversely to the defendant in the prior trial, and that the matter was res judicata and not subject to relitigation. The trial court sustained her motion. We reversed. In the unanimous opinion, Justice O’Connor discussed cases from other states, both those renouncing the mutuality requirement and those adhering to it. He said in part:
“Thus, the question posed is whether or not a judgment for a plaintiff in an earlier action is res judicata, or conclusive, as to the issues of negligence and contributory negligence of the respective drivers in a subsequent action growing out of the same accident by a different plaintiff against the same defendant.
“Defendant seeks to support his position by relying on the general rule that a plea of res judicata may be asserted only by a person who was a party or in privity with a party to the prior action. This in turn is based upon the doctrine of mutuality of estoppel; that- is, a litigant can invoke the conclusive effect of the prior judgment only if he would have been bound by it had it gone the other way. [Citations omitted.] More simply stated, the requirement of mutuality means that unless both parties are bound by the prior judgment, neither may use it against the other in a subsequent action. [Citation omitted.]
“The Restatement expresses the mutuality requirement in language to the effect that a person who is not a party or privy to a party to an action in which a valid judgment other than a judgment in rem is rendered is not bound by or entitled to claim the benefits of an adjudication upon any matter decided in the action. (Restatement of Judgments § 93.)
“The majority of courts throughout the country recognize and apply the doctrine of mutuality, subject to certain exceptions not germane to the factual situation here. [Citations omitted.] . . .
“The plaintiff here seeks to uphold the lower court's ruling on the basis of the so-called Bernhard doctrine enunciated in Bernhard v. Bank of America, 19 Cal. 2d 807, 122 P.2d 892, in which the court, in effect, renounced the traditional concept of mutuality of estoppel and confined the requirement of privity to the party against whom the plea of res judicata is asserted. The import of the decision is that where there is identity of issues between two suits, a party against whom judgment has been rendered in one suit is bound thereby in the other suit, even though his adversary who invokes the prior adjudication was not a party or privy to the suit in which the judgment was rendered, and would not have been bound had the judgment gone the other way. In the opinion, Justice Traynor stated:
“ ‘The criteria for determining who may assert a plea of res judicata differ fundamentally from the criteria for determining against whom a plea of res judicata may be asserted. The requirements of due process of law forbid the assertion of a plea of res judicata against a party unless he was bound by the earlier litigation in which the matter was decided. . . . There is no compelling reason, however, for requiring that the party asserting the plea of res judicata must have been a party, or in privity with a party, to the earlier litigation.
“ In determining the validity of a plea of res judicata three questions are pertinent: Was the issue decided in the prior adjudication identical with the one presented in the action in question? Was there a final judgment on the merits? Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication? ... .’ (pp. 811-813.) (Emphasis added.)
“The trial judge, in his memorandum opinion in the instant case, posed the three questions set forth in Bernhard, answered them affirmatively, and held the plea of res judicata, or more properly, collateral estoppel, could be invoked against the defendant.
“It is interesting to note that even under the Bernhard doctrine plaintiff would not have been bound by a judgment in favor of defendant in the prior action, because plaintiff, being the party against whom the plea was being asserted, had not had her day in court.
“We find that several other jurisdictions have voiced dissatisfaction with the requirement of mutuality and embraced the Bernhard doctrine. [Citations omitted.]
“In actual practice, despite the broad terms in which the Bernhard doctrine was expressed by Justice Traynor, it for the most part has been used defensively by one not a party to the first action against one who was a party to the first action and had his day in court upon the issues which the judgment decided, rather than applied affirmatively to establish negligence in favor of a nonparty to the previous litigation, such as in the instant case. [Citations omitted.] In other words, the courts are more inclined to permit use of the doctrine as a ‘shield’ by one not a party to the first action, but not as a ‘sword.’
“The recent case of Spettigue v. Mahoney, 8 Ariz. App. 281, 445 P.2d 557, involved a similar factual situation as here in which the plaintiffs, who were not parties or privy to prior litigation which resulted in a judgment against the defendant, sought the benefit of the adjudication of negligence and proximate cause rendered in the first action, against the same defendant. The affirmative application of the Bernhard doctrine to establish negligence in favor of nonparties to previous litigation was thoroughly discussed in the court’s opinion. The reasoning of the Arizona court, in rejecting plaintiffs’ request to so apply the doctrine, appears sound to us. The unfairness of the doctrine when applied offensively is emphasized in the following language:
“ . . If the Bernhard doctrine can be used offensively, then it is to a plaintiff s advantage, when there are several persons injured in a single accident, to use his superior powers to keep his claim out of the legal arena until there has been another plaintiff s judgment arising out of the same events.
“. . . We are reluctant to adopt a rule which would incline a plaintiff to maneuver to advance on the calendar another plaintiffs case with more jury-appeal rather than seek consolidation with other plaintiffs to determine liability. . . .’ (pp. 287-88.)
“In a factual situation such as is presented here we find no compelling reason to depart from our prior law. We have long followed the rule that an issue is res judicata only when there is a concurrence of four conditions, namely, (1) identity 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. [Citations omitted.] Inherent in the above rule is the requirement of mutuality discussed earlier in the opinion. With respect to persons in whose favor or against whom the doctrine of res judicata is applicable, a former adjudication is binding only on parties in the proceedings in which it is rendered, and their privies. [Citations omitted.] The doctrine does not operate to affect strangers to the judgment, that is, those who, like the plaintiff, were neither a party nor privy to a party in the litigation. Thus, a stranger is not precluded from maintaining an action, although the issues therein were determined in a prior judgment in favor of the same defendant. [Citation omitted.] Neither can the stranger claim the benefit of such judgment had it gone the other way.” 202 Kan. at 484-88.
We followed the mutuality requirement of Adamson in Keith v. Schiefen-Stockham Insurance Agency, Inc., 209 Kan. 537, Syl. ¶ 7,498 P.2d 265 (1972); and see Kumberg v. Kumberg, 232 Kan. 692, Syl. ¶ 6, 659 P.2d 823 (1983); In re Estate of Reed, 233 Kan. 531, Syl. ¶ 1, 664 P.2d 824, cert. denied 464 U.S. 978 (1983), and In re Estate of Reed, 236 Kan. 514, Syl. ¶ 2, 693 P.2d 1156 (1985).
Since Adamson, many courts have considered the so-called Bernhard doctrine, requiring privity or identity of parties only between the parties against whom collateral estoppel is sought. Of particular interest is Annot., Estoppel by Judgment — Mutuality Need, 31 A.L.R.3d 1044, and the August 1985 supplement thereto. Although the original annotation, published in 1970, boldly states that “[t]he modern trend is to discard the mutuality rule as such,” (p. 1052) the annotation concedes that “the majority of courts throughout the country recognize and apply the rule requiring mutuality of estoppel, subject to certain exceptions.” (p. 1059.) It would appear from the 1985 annotations that the requirement of mutuality remains the majority rule. We have found no evidence toward the abandonment of that rule.
The abandonment of the mutuality rule, it seems to us, would not be fair. If Kearney and ten other plaintiffs had brought suit against KPS, based on the same explosion and fire, and had lost, plaintiff McDermott would not be precluded from bringing his action since he was not a party to the other actions nor in privity with the other plaintiffs. But since Kearney was successful, all of the remaining plaintiffs would need only prove damages in order to recover, and defendants would be precluded from asserting the defense of lack of causal negligence in all remaining cases, if the mutuality requirement is abandoned.
In refusing to abandon the mutuality rule in a case in which plaintiff sought to make offensive use of collateral estoppel, the Arizona Court of Appeals makes several observations which we think bear repeating. In Spettigue v. Mahoney, 8 Ariz. App. 281, 445 P.2d 557 (1968), that court said:
“The adversary system prevails in many aspects of the life of man but contest rules seldom provide that one contestant must be declared the loser to a competitor that he has never met on the field of contest.
“. . . While this court believes that our system of justice has no peer in this fallible world, nevertheless, it is unable to consider that our trial processes unerringly discover Truth. The selection of the judge and jury, the choice of counsel, the availability of witnesses, the manner of the presentation of their testimony, the dynamics of the rapport between witnesses and fact-finder, and the personalities and appearances of the parties as they impress the fact-finder in various ways, are all matters that defy scientific analysis, are affected by fortuitous circumstances and variously determine the outcome of a contest conducted in the courts of this country.” 8 Ariz. App. at 286.
We did not intend, in Kearney, to foreclose KPS from asserting its defense of lack of negligence in this and other related cases, and we did not then and we do not now abandon the mutuality rule. We conclude that the trial court erred in sustaining plaintiff s motion for partial summary judgment, and in instructing the jury in this case that the defendant’s liability had been determined in a previous case. For this reason, the judgment must be reversed.
We have carefully examined other issues raised by KPS, but in light of our disposition of this appeal, we need not determine them. The judgment is reversed, and the case is remanded for further proceedings.
Prager, J., dissenting: I respectfully dissent from the holding of the majority that the trial court erred in finding that collateral estoppel barred KPS from litigating again the issue of its liability and in its refusal to submit that issue to the jury. I do not disagree with the law requiring mutuality to be present for application of collateral estoppel. Rather, I disagree with the application of that requirement to the peculiar facts in this case.
McDermott was a party to the appeal in the prior case in which the issue of causal fault was determined among the three defendants, KPS, du Pont, and Dresser. The causal fault of the three defendants is the exact issue in the present case, because defendant KPS admitted in its pretrial questionnaire there was no issue of plaintiff s fault in McDermott’s case. Because the present parties are the same parties as in the prior appeal involving the same issue, in my judgment, collateral estoppel should be applied to avoid the necessity and expense of retrying the identical issue again in McDermott’s case.
Justice Miller correctly stated the operative facts in the procedural background of Kearney v. Kansas Public Service Co., 233 Kan. 492, 665 P.2d 757 (1983). The Kearneys brought action against KPS, du Pont and Dresser Industries, claiming negligence on the part of each of the three defendants. The jury determined that 100% of the causal negligence was chargeable to KPS, and none was chargeable to du Pont and Dresser Industries. Du Pont and - Dresser then filed motions for summary judgment on the issue of liability in the remaining pending cases, including McDermott. The trial court sustained those motions. KPS then took separate appeals from the trial court’s ruling on those motions, as well as the judgment rendered in Kearney, and all of the appeals were consolidated in this court and determined in Kearney. See majority opinion at 13.
The majority contends mutuality of parties does not exist between McDermott and the three codefendants. Granted, McDermott was not a party to Kearney when that case was tried to a jury. However, the record in McDermott reflects that Dresser and du Pont sought summary judgment against the claims oí plaintiff McDermott as well as the cross-claims of KPS. The summary judgments granted to Dresser and du Pont, from which KPS appealed, directly affected the rights of plaintiff McDermott. On appeal, plaintiff McDermott had the opportunity to cross-appeal, but the fact that McDermott acquiesced in the judgment of the trial court should not preclude application of collateral estoppel as against the same parties on appeal regarding the same issue. Plaintiff McDermott is bound by the decision of this court in the prior appeal which became the law of the case on the issue of liability. Plaintiff was not a stranger to the prior judgment of this court, and, therefore, mutuality of parties existed on the issue of the liability of the three defendants, which is the same issue in the present case.
The appeals in Kearney, although consolidated, involved two separate parts: (1) The appeal from the Kearney judgment involving, inter alia, the issue of error with respect to punitive damage; and (2) the separate appeals by KPS involving the granting of summary judgment to du Pont and Dresser in ten other cases, including McDermott. Thus McDermott was a party to the appeal by KPS which concerned the issue of liability of the named defendants.
The majority opinion emphasizes that McDermott did not appeal the decision granting summary judgment to du Pont and Dresser to support its position that there was no mutuality between McDermott and the three codefendants. I respectfully disagree.
In Kearney this court stated:
“KPS next asserts that the requirement of mutuality of parties does not exist because there are different plaintiffs in the ten cases. In none of the cases was there any assertion that any of the plaintiffs were at fault in any way and the only issue of liability for trial was the degree of fault of the three codefendants. Thus mutuality of parties does exist on the issue of the respective liability of KPS, du Pont and Dresser as among themselves. That liability has been finally determined in the Kearney case and is binding upon KPS, du Pont and Dresser in all other litigation growing out of the same occurrence. [Emphasis in original.]
“In the trial of the Kearney case all defendants fully litigated the issues of their respective liability and that case has now been finally determined. Under the facts of these cases where there were no claims by any defendants in any of the cases that any of the plaintiffs were negligent or at fault and the only issues thereon were among the three codefendants, there existed mutuality and identity of the parties sufficient to invoke collateral estoppel in the later cases. We are not called upon and do not here decide whether mutuality of estoppel is still a valid requirement for the application of the doctrine of collateral estoppel in other cases. [Emphasis in original.]
“The record in Kearney clearly shows that KPS, du Pont and Dresser had a full, fair and complete opportunity to litigate the issue of negligence and that in fact that issue was fully and fairly litigated. There is no need to do it again. The trial court did not commit error in granting summary judgment in the ten consolidated cases in favor of du Pont and Dresser on the basis of collateral estoppel based upon the decision in Kearney, where there were no issues of possible liability by any of the plaintiffs or any other parties other than the three codefendants. Under the factual situation which existed in Kearney and the ten consolidated cases, the factors to invoke collateral estoppel are present. We make no determination of the applicability of the doctrine of collateral estoppel when other parties, such as the various plaintiffs in the present cases, are alleged to have been negligent.” (Emphasis supplied.) 233 Kan. at 511-13.
Thus, there being identity of issues and mutuality of parties, the district court properly applied collateral estoppel to the issue of the liability of KPS in this case. In so doing, it followed the directions of this court in Kearney.
Application of collateral estoppel to the issue of punitive damages involves an entirely different set of circumstances. McDermott was not a party to the issue of punitive damages in the Kearney appeal because that portion of the holding arose in the appeal from the judgment in the Kearney case and was unrelated to the appeal involving the summary judgments entered in the McDermott case. On the issue of punitive damages, the majority correctly held there was no mutuality of parties and, hence, no collateral estoppel.
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|
The opinion of the court was delivered by
Herd, J.:
This is an action for strict liability in tort for the manufacture and sale of an allegedly defective product. This is an appeal from the district court’s grant of summary judgment in favor of the appellees, Toledo Scale Corporation, Reliance Electric and Engineering Company, Reliance Electric Company and Kleen Kut Manufacturing Company, defendants below.
The facts are not in dispute.
The accident giving rise to this action occurred in the summer of 1976. The appellant, who was sixteen years old at the time, was employed as a part-time cook in a restaurant located in Great Bend. On the evening of July 23, 1976, the appellant was directed to grind meat for hamburger. Although this task was not one of his regular duties, he began grinding meat using a meat grinder which bore the decal of Kleen Kut Manufacturing Company, Cleveland, Ohio, Model No. 5132A.
When the appellant attempted to push the meat into the auger, it caught his fingers and pulled his fingers and palm under the auger. His hand was so severely injured it required surgical amputation at the wrist.
Prior to December 15, 1955, Kleen Kut Manufacturing Company (Kleen Kut) operated a factory in Cleveland, Ohio, for the purpose of manufacturing food choppers, including Model No. 5132A meat grinders.
On December 15, 1955, Kleen Kut entered into an agreement with Toledo Scale Corporation (Toledo Scale) whereby Toledo Scale purchased Kleen Kut’s assets for $405,650. Included in those assets were inventory, work-in-process, parts, components and raw materials relating to the manufacture and sale of food machines. Toledo Scale also acquired the exclusive right to the name “Kleen Kut” and agreed to enter into a two-year lease of the factory premises owned by Kleen Kut.
Following the sale of assets, Louis Faulb, who was the president of Kleen Kut, was appointed by Toledo Scale as general manager of the Cleveland Manufacturing Division of Toledo Scale, which position he retained for a period of twelve to fifteen months. Additionally, Toledo Scale retained in its employment former employees of Kleen Kut.
Kleen Kut Manufacturing Company was dissolved on November 21, 1956.
Toledo Scale continued to manufacture and sell parts for meat choppers previously manufactured by Kleen Kut and to manufacture and sell, under the name Toledo Scale Corporation, meat choppers and parts formerly manufactured and sold under the name Kleen Kut. Toledo Scale sold replacement parts for the model No. 5132A Kleen Kut meat grinder; however, these parts were universal replacements parts and fit numerous grinder models.
Toledo Scale merged into Reliance Electric and Engineering Company on October 12, 1967, and Reliance Electric and Engineering Company merged into Reliance Electric Company on February 25, 1969.
Appellant filed the present action on July 17, 1978, against Kleen Kut, Toledo Scale, Reliance Electric and Engineering Company and Reliance Electric Company. On October 8, 1981, the district court granted Kleen Kut’s motion to dismiss on the ground that appellant’s action could not be maintained against an Ohio corporation on a cause of action filed twenty-two years after the date of dissolution. On October 23, 1984, the court sustained the motion for summary judgment of Toledo Scale, Reliance Electric and Engineering Company and Reliance Electric Company on the ground that these corporations could not be held liable as successor corporations.
Prior to considering the substantive law relating to the corporate liability of both dissolved and successor corporations, we must first examine the conflict of laws question presented by this case.
The specific issue with which we are faced is whether the substantive law of Kansas or Ohio is applicable to the issue of the liability of either a dissolved predecessor corporation or its successor corporation for injuries resulting from a product manufactured by the predecessor. The appellant’s injuries were sustained in Kansas. The machine, the use of which resulted in appellant’s injuries, was manufactured in Ohio. The appellee corporations are all incorporated in the State of Ohio. Additionally, the transfer of assets from Kleen Kut to Toledo Scale was accomplished pursuant to a contract executed in Ohio.
The appellees argue that under the traditional rule of lex loci delicti, Kansas law is applicable. The appellant, however, argues the governing law is that of the jurisdiction where the transfer of assets between the predecessor and successor corporations took place.
We have traditionally applied the rule of lex loci delicti to choice of law for tort claims. McDaniel v. Sinn, 194 Kan. 625, 400 P.2d 1018 (1965). Under this rule, the law of the state where the tort occurred is applied to the substantive rights of the parties.
We recently reaffirmed this rule in Ling v. Jan's Liquors, 237 Kan. 629, 703 P.2d 731 (1985), There, we held that, where injuries were sustained in Kansas as a result of a negligent act in another state, the liability of the defendant is to be determined by the laws of this state. In so holding, we rejected the “analytical approach” for determining what laws should govern the substantive rights of the parties.
Appellant here does not suggest we reject lex loci delicti and adopt the analytical approach. Rather, appellant contends that, in an action against a dissolved manufacturing corporation and its successor, the law of the jurisdiction where the transfer of corporate stock and assets was made should govern, rather than the law of the place where the injuries occurred. In support of his contention, appellant cites Bonee v. L & M Const. Chemicals, 518 F. Supp. 375 (M.D. Tenn. 1981). There, a Tennessee plaintiff brought suit as administrator of the estate of Roy Bonee, who died from injuries he received when an oil drum exploded and severely burned him. The flammable construction sealer which exploded in the drum was manufactured by an Illinois corporation, which later transferred its assets to an Ohio corporation. The court noted that Tennessee follows the lex loci delicti rule and that under that rule the substantive law of the state in which the tort occurred governs. Rather than apply this rule, however, the court characterized the case as presenting a contract question — i.e., what is the legal effect of the sale of the assets of one corporation to another corporation? 518 F. Supp. at 379. Under Tennessee law, the rights to the parties to a contract are governed by the laws of the state in which the contract was entered into. Therefore, the Tennessee court determined that Ohio’s substantive law was applicable.
The Bonee court stated:
“Because the basic question in this case is what is the legal effect of the sale of virtually all of the assets of one corporation to another corporation, under Tennessee conflicts rules the substantive law of Ohio applies. Although characterizing the case as contractual for the purpose of this issue and tortious for purposes of determining liability may seem disjointed, see Korzetz v. Amsted Industries, Inc., 472 F. Supp. 136, 138-42 (E.D. Mich. 1979), it is the correct approach. One of the purposes of using choice-of-law rules is to ensure the uniform application of substantive law. The rights of a corporation that contracts in Ohio to purchase the assets of another corporation should be the same with respect to assumption of liability for personal injuries regardless of where the personal injury occurs. For example, if the parties had specifically agreed that Dayton would assume liability for all injuries arising out of the use of BCS’ products no one would dispute the characterization of the issue presently before the Court as contractual. The characterization should be no different simply because the parties did not expressly address the issue in their agreement.” pp. 379-80.
See also 63 Am. Jur. 2d, Products Liability § 879, p. 1255.
After examining the options, we are persuaded that the law of the jurisdiction where the corporation was formed, and where the transfer of corporate stock and assets took place, should govern the liability of a dissolved predecessor corporation and its successor corporation for injuries arising from use of a product manufactured by the dissolved predecessor corporation. Kansas tort law governs the nature of the cause of action available to the injured party, i.e., strict liability.
Appellant first argues the trial court erred in granting summary judgment in favor of Kleen Kut. The trial court concluded that the filing of suit by appellant twenty-two years after the dissolution of a corporation is impermissible under Ohio law.
At common law, a corporation’s capacity to sue or be sued terminated when the corporation was legally dissolved. 16A Fletcher, Cyclopedia of the Law of Private Corporations § 8142 (rey. perm. ed. 1979). However, all jurisdictions now have statutes dealing with the matter of litigation by and against corporations after dissolution.
In determining whether a dissolved corporation has the capacity to be sued, we look to the law of the state of incorporation. 36 Am. Jur. 2d, Foreign Corporations § 446, p. 454. Thus, as previously held, we will consider Ohio law in determining whether appellant can maintain an action against Kleen Kut, a dissolved Ohio corporation. The applicable Ohio statute provides:
“(B) Any claim existing or action or proceeding pending by or against the corporation or which would have accrued against it may be prosecuted to judgment, with right of appeal as in other cases, but any proceeding, execution, or process, or the satisfaction or performance of any order, judgment, or decree, may be stayed as provided in section 1701.89 of the Revised Code.” Ohio Rev. Code Ann. § 1701.88(B) (Page 1985).
Ohio appellate courts have not considered this statute as it relates to the factual context at hand. We are cited, however, to a federal district court decision from Ohio in which § 1701.88 was construed and applied to a fact situation similar to our own. In Chadwick v. Air Reduction Company, 239 F. Supp. 247 (N.D. Ohio 1965), plaintiffs sought recovery for personal injuries sustained when an infant’s foot became lodged in the heating element of a baby incubator. The incubator was manufactured by an Ohio corporation which was dissolved some two years prior to the injury. The defendant argued for dismissal, contending a suit could not be maintained against a dissolved Ohio corporation on a cause of action accruing after the date of dissolution.
The court held the phrase in § 1701.88(B) “or which would have accrued against it” referred to causes of action not yet sued upon at the time of dissolution. In order to so hold, the court inserted the following bracketed language into the statute:
“ ‘Any claim existing [not yet sued upon] or action or proceeding [already commenced] pending by or against the [dissolved] corporation or [any claim not yet sued upon or action or proceeding] which would have accrued against it [had dissolution not occurred] may be prosecuted to judgment, with right of appeal as in other cases ....”’ 239 F. Supp. at 251.
The court’s decision in Chadwick must be restricted to the facts of that case — i.e., where an action is brought within two years after a corporation’s dissolution, it may be allowable under § 1701.88(B). However, Chadwick does not stand for the proposition that a claim can be brought against a dissolved Ohio corporation for an indefinite period of time.
The trial court here considered Chadwick but rejected its interpretation and instead found that § 1701.88(B) extends a corporation’s existence after dissolution only for a “reasonable” length of time. The trial court reasoned that such a finding is in line with the public policy of Ohio. Specifically, the trial court held:
“[T]he public policy of Ohio is that continued corporate existence after dissolution exists as a concept for the purpose of facilitating corporate affairs and not for the purpose of providing relief for plaintiffs forever.”
Thus, in the absence of any conflicting decision from Ohio appellate courts, we adopt the trial court’s analysis and find that Ohio Rev. Code Ann. § 1701.88(B) (Page 1985) extends a corporation’s existence after dissolution only for a reasonable period of time. In the instant case, appellant’s claim was brought twenty-two years after Kleen Kut was legally dissolved. Such a claim was not within the scope of § 1701.88(B) and the trial court properly granted Kleen Kut’s motion for dismissal, styling it as a summary judgment.
Next, we must consider the issue of a successor corporation’s liability for injuries resulting from the use of an allegedly defective product manufactured by its predecessor.
The trial court granted summary judgment in favor of appellees Toledo Scale Corporation, Reliance Electric and Engineering Company and Reliance Electric Company. The trial court ruled that under the traditional rule governing successor liability, the appellees were not liable to the appellant. As previously stated, Ohio law governs the issue of a successor corporation’s liability for injuries arising from use of a product manufactured by its predecessor.
The general rule of successor liability is stated as follows:
“The general rule ... is that where one company sells or otherwise transfers all its assets to another company, the latter is not liable for the debts and liabilities of the transferor. . . . An express agreement, or one that can be implied, to assume the other company’s debts and obligations, is necessary; or the circumstances must warrant a finding that there was a consolidation or merger of the corporations, or that the transaction was fraudulent in fact, or that the purchasing company was a mere continuation of the selling company; the foregoing constitute two so-called exceptions to the general rule.” 15 Fletcher, Cyclopedia of the Law of Private Corporations § 7122 (rev. perm. ed. 1983).
See also Comstock v. Great Lakes Distributing Co., 209 Kan. 306, 310, 496 P.2d 1308 (1972).
This general rule was followed and applied by the Ohio Court of Appeals in Burr v. South Bend Lathe, Inc., 18 Ohio App. 3d 19, 480 N.E.2d 105 (1984). There, the plaintiff was injured by an allegedly defective and unreasonably dangerous mechanical press manufactured by Johnson Machine and Press Corporation. The defendant, South Bend Lathe, Inc., was a successor to Johnson Machine and continued to manufacture and sell “Johnson” brand machine presses. However, South Bend Lathe assumed no liability for products manufactured by its predecessor.
The Ohio court stated the basic issue as being whether a manufacturing corporation can be held strictly liable under a product liability theory for injuries sustained as a result of a defective product manufactured by a corporation distant in time and corporate existence from the defendant, where both corporations manufactured similar products under the same trade name but where defendant assumed no liability for products manufactured by its predecessor.
The Ohio court held that South Bend and its predecessor dealt at arms length, there was no evidence of mixture of officers or stockholders and the two entities were separate and distinct. Additionally, the court noted that there was no evidence of inadequate consideration running from South Bend to its predecessor and South Bend assumed no liabilities of its predecessor. The court then concluded that all of these factors, particularly the absence of an agreement by South Bend to assume the liabilities of its predecessor, required a finding that South Bend was not liable for injuries caused by products placed in the stream of commerce by its predecessor.
The controlling facts in the present case are very similar to those in Burr. Here, there was an outright sale of assets from Kleen Kut to Toledo Scale, with no transfer of stock or continuity of ownership. Toledo Scale neither expressly nor impliedly assumed the liabilities of Kleen Kut. Moreover, there is no indication or allegation that the asset transfer was for less than adequate consideration.
While Toledo Scale continued to manufacture and sell meat grinders similar to the one which caused plaintiff s injuries, this factor alone is not determinative. Rather, following the Ohio court’s analysis in Burr, the key factor in our determination must be the absence of an agreement by Toledo Scale to assume liability for products sold prior to its purchase of Kleen Kut’s assets. Thus, we conclude that the appellees are not liable for injuries caused by products manufactured and sold by Kleen Kut, and the trial court properly granted summary judgment to the defendants.
We recognize that the application of the traditional rule of corporate successor non-liability sometimes leads to seemingly harsh results. Moreover, we are aware that a number of courts have attempted to deal with that harshness by relaxing or expanding existing exceptions to the general rule. See Mozingo v. Correct Mfg. Corp., 752 F.2d 168 (5th Cir. 1985); Cyr v. B. Offen & Co., Inc., 501 F.2d 1145 (1st Cir. 1974); Polius v. Clark Equipment Co., 608 F. Supp. 1541, 1545-47 (D.V.I. 1985); Bonee v. L & M Const. Chemicals, 518 F. Supp. 375, 381; and Rivers v. Stihl, Inc., 434 So. 2d 766, 771-72 (Ala. 1983), for cases applying a “continuity of enterprise” theory. See Ray v. Alad, Corp., 19 Cal. 3d 22, 136 Cal. Rptr. 574, 560 P.2d 3 (1977); Ramirez v. Amsted Industries, Inc., 86 N.J. 332, 431 A.2d 811 (1981); and Dawejko v. Jorgensen Steel Co., 290 Pa. Super. 15, 434 A.2d 106 (1981), for cases applying the “product line” theory.
Our decision today is neither acceptance nor rejection of such exceptions since we are not applying Kansas law.
The judgment is affirmed.
Lockett, J., concurs in the result. | [
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal from a jury conviction of aggravated sodomy (K.S.A. 21-3506). The defendant, Nelson Lem’Mons, was found not guilty of rape. This prosecution arose after a five-year-old child complained to her mother that she had been sexually abused by the defendant. According to the child, the defendant had been at her father’s place playing dominoes with the child’s father, Charles Peterson. The defendant asked Peterson if he could go fishing with the child and the father consented. The child then got into the defendant’s car and went to the defendant’s home where they picked up some fishing gear and proceeded to a creek. According to the child, upon arriving at the creek defendant took the child to a secluded area where at the request of the defendant they participated in sexual activities. Based upon this interview, the State filed a complaint against the defendant, charging him with rape (K.S.A. 21-3502[a]); aggravated sodomy (K.S.A. 21-3506[b]); indecent liberties with a child (K.S.A. 21-3503[l][b]); and enticement of a child (K.S.A. 21-3509).
The child was interviewed several times by sheriff s deputies in which interviews the child made similar accusations against her father and a third man, in addition to repeating her charges against the defendant. Based upon these interviews, the State charged the child’s father, Charles Peterson, with rape, aggravated sodomy, and indecent liberties with a child. Steps were also taken by a civil action to remove the child from the custody of the father. In the case charging Lem’Mons, Marian M. Burns was appointed on July 12, 1983, as counsel to represent defendant in that criminal prosecution. Marian M. Burns’ husband, Clyde Burns, a partner in the law firm of Burns and Burns, was appointed to represent Charles Peterson in the criminal prosecution charging Peterson with the same offenses.
Defendant Lem’Mons’ preliminary hearing was held on August 25, 1983. During that proceeding, a witness, Janet Humiston, who had been taking care of the child as a foster parent, was called on behalf of the State. The child had told that witness that she had been sexually abused by her father and the defendant. At the preliminary hearing, Marian M. Burns attempted to inquire of the foster parent about the sexual abuse by the father. The State objected to this line of questions on the basis that it was irrelevant to Lem’Mons’ preliminary hearing. Marian Burns, in response, stated that she thought it very possible that the child had been intimidated by her father. She suggested that it was the father who could have planted the charges against defendant Lem’Mons in the child’s mind. Marian Burns further stated to the court that the child’s whole story about defendant Lem’Mons was concocted by the father and that she was just saying it because of her father. Thus, at that early stage of the criminal action, Marian Burns pointed her finger directly at Charles Peterson as the instigator of the charges of child abuse against her client, Lem’Mons.
In the criminal action against Charles Peterson, an arraignment was held on September 15, 1983, and Peterson was bound over on the three sex charges. Peterson waived his preliminary hearing. It is undisputed that Charles Peterson has always maintained that the defendant, Lem’Mons, was the sole perpetrator of these sex offenses. In fact, it was Peterson who originally brought the child to the sheriff s office to give her statement which resulted in the criminal prosecution against Lem’Mons. As the two prosecutions developed, in February of 1984, the county attorney became very concerned with the possible conflict of interest resulting from the fact that Marian Burns represented Nelson Lem’Mons and Clyde Burns represented Charles Peterson as attorney in the latter’s prosecution. Both defendants were charged with sexual abuse of Peterson’s daughter and both of them were pointing the finger of guilt at the other.
On February 14, 1984, the county attorney sent a letter to the Burns and Burns law firm informing them of the possible conflict of interest. Marian Burns responded that she did not believe there was a conflict. Clyde Burns was not sure, and so a hearing date was set for Monday, February 20, 1984. In the interim, Marian Burns filed a motion moving the court to allow testimony of previous sexual conduct with the minor child. Marian Burns did not specifically state what the testimony involved was but referred to defendant Lem’Mons’ preliminary hearing where the matter of sexual abuse by the father had come up. On February 17, 1984, Marian Burns called the county attorney’s office and stated to the legal intern who handled the case that she felt the State had the wrong man, and that she intended to subpoena the father, Charles Peterson, as a witness. At about this time, the county attorney also sent a letter to Clyde Burns in regard to the prosecution’s stand on plea bargaining. At this point, the county attorney felt certain that there was a conflict of interest because of the representation of Lem’Mons and Peterson by members of the same law firm.
On February 20, 1984, the county attorney filed a motion requesting the court to excuse the firm of Burns and Burns from representing defendant Lem’Mons on the grounds that the firm had a conflict of interest in the case. Attached to the motion was a comprehensive memorandum of law in support of the State’s motion setting forth in detail the facts and law in regard to the conflict of interest. There is nothing in the record to show that the motion was ever considered and determined by the court. Counsel in their briefs have not advised this court in that regard. It appears that the defendant failed to appear for his trial on February 24, 1984, and was later arrested and returned from Florida. The case was tried on March 29 and March 30, 1984. Marian Burns represented the defendant throughout the trial, at the hearing on the motion for a new trial, and at sentencing. After sentence was imposed, the defendant stated to the court that he no longer wanted Marian Burns to represent him and that his relatives had made arrangements for other counsel to represent him on appeal. On September 26, 1984, a notice of appeal was filed by Morris D. Birch, who has represented the defendant on the appeal in this court.
Morris D. Birch, representing the defendant, has raised ten points on the appeal. The first two points take the position that the defendant was denied his constitutional right to representation by counsel, as guaranteed by the Sixth Amendment to the United States Constitution, based on the fact that defendant did not have adequate, competent counsel during the prosecution and trial and particularly because of the conflict of interest mentioned heretofore. The other eight points on the appeal involve claimed trial errors, including evidentiary matters, the court’s instructions, prosecutorial misconduct, and the overruling by the trial court of a number of procedural motions filed on behalf of the defendant.
Our reading of the record in this case gives this court a great deal of concern. The record in the case is a mess. This court is also concerned that the trial court apparently ignored the State’s motion to disqualify Marian Burns on the basis of a conflict of interest when an important issue involving a fundamental constitutional right had been raised by the State. It should also be mentioned that the court reporter’s transcripts are confusing and full of errors.
It has long been recognized that an attorney’s representation of more than one defendant in a criminal prosecution or more than one defendant charged with the same crime, even though they are tried separately, may make it difficult, or even impossible, for the attorney to give each such defendant the effective assistance of counsel which is his right under the Sixth Amendment to the United States Constitution. However, the rule is well established that the Sixth Amendment is not violated by the mere fact of multiple representations; for a violation to occur, that multiple representation must result in a conflict of interests. Glasser v. United States, 315 U.S. 60, 86 L.Ed. 680, 62 S.Ct. 457, r.eh. denied 315 U.S. 827 (1942); Holloway v. Arkansas, 435 U.S. 475, 55 L.Ed.2d 426, 98 S.Ct. 1173 (1978); Cuyler v. Sullivan, 446 U.S. 335, 64 L.Ed.2d 333, 100 S.Ct. 1708 (1980); State v. Young, 196 Kan. 63, 410 P.2d 256 (1966). Annot., Multiple Representation of Defendants in Criminal Case as Violative of Sixth Amendment Right to Counsel — Federal Cases, 64 L.Ed.2d 907. In Holloway v. Arkansas, the court held that where there is a showing of conflict of interest arising out of an attorney’s joint representation of two defendants in a joint criminal prosecution, there is a presumption of prejudice.
1 American Bar Association Standards for Criminal Justice, The Defense Function, § 3.5(b) covers the subject of conflict of interest in multiple representation and declares as follows:
“(b) Except for preliminary matters such as initial hearings or applications for bail, a lawyer or lawyers who are associated in practice should not undertake to defend more than one defendant in the same criminal case if the duty to one of the defendants may conflict with the duty to another. The potential for conflict of interest in representing multiple defendants is so grave that ordinarily a lawyer should decline to act for more than one of several co-defendants except in unusual situations when, after careful investigation, it is clear that no conflict is likely to develop and when the several defendants give an informed consent to such multiple representation.”
The Kansas Code of Professional Responsibility, Canon 5, 235 Kan. cxlv, is in conformity with the ABA Standards by providing as follows:
“DR 5-105 Refusing to Accept or Continue Employment if the Interests of Another Client May Impair the Independent Professional Judgment of the Lawyer.
“(A) A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, except to the extent permitted under DR 5-105(C).
“(B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, except to the extent permitted under DR 5-105(C).
“(C) In the situations covered by DR 5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each.
“(D) If a lawyer is required to decline employment or to withdraw from employment under DR 5-105, no partner or associate of his or his firm may accept or continue such employment.”
The appellate courts of Kansas have expressed their concern when a conflict of interest arises from the representation of multiple defendants in a single criminal transaction. In State v. Leigh, 178 Kan. 549, 289 P.2d 774 (1955), the court observed:
“The inviolate rule has long been firmly established both in the Canons of Professional Ethics and by judicial opinions that attorneys cannot represent conflicting interests or undertake to discharge inconsistent duties. When an attorney has once been retained and received the confidence of a client, he cannot enter the services of those whose interests are adverse to that of his client or take employment in matters so closely related to those of his client or former client as, in effect, to be a part thereof. The rule is a rigid one, and it is well that it is so. It is designed not only to prevent the dishonest practitioner from fraudulent conduct, but to preclude the honest practitioner from placing himself in a position where he may be required to choose between two conflicting duties. He should undertake no adverse employment, no matter how honest may be his motives and intentions. He owes to his client fidelity, secrecy, diligence and skill, and cannot take a reward from the other side.” p. 552.
In State v. Young, 196 Kan. 63, it was held that the right of a person charged with crime to counsel under Section 10 of the Kansas Bill of Rights and the Criminal Code of Procedure is infringed where counsel appointed over the objection of the accused was acting as counsel for a codefendant where a conflict of interests between defendants appeared to be a possibility. The duty of a trial court to appoint counsel for an indigent accused includes the proviso that such counsel have no interest adverse to the accused which would interfere with a fair presentation of his defense. State v. Sullivan & Smith, 210 Kan. 842, 504 P.2d 190 (1972), declares that conflict of interest is a sensitive area in the law and that it has been recognized as such by the legal profession and has been codified in Canon 5, DR-105 of the Code of Professional Responsibility.
State v. Hilton, 217 Kan. 694, 538 P.2d 977 (1975), was an original proceeding in discipline where an attorney was censured for undertaking to represent codefendants in a criminal case. Hilton discusses disciplinary rule 5-105 and states that in undertaking to represent codefendants in a criminal case, counsel should always be aware of conflicts which may and frequently do arise. The court states that the most serious conflict that might arise is where one defendant takes a plea and becomes a State’s witness while the other goes on to trial on a plea of not guilty to the same charge.
In State v. West, 2 Kan. App. 2d 297, 578 P.2d 287 (1978), the court cites Glasser v. United States and Holloway v. Arkansas, and states that requiring an attorney to represent codefendants whose interests are in conflict denies them the effective assistance of counsel. The court further holds that the effective assistance of counsel under the Sixth Amendment is a “constitutional right” so basic to a fair trial that its denial can never be treated as harmless error. A recent case on conflict of interest is State v. Rice, 227 Kan. 416, 607 P.2d 489 (1980). The opinion by Justice Holmes discusses in some depth the subject of ineffective assistance of counsel and the problem of conflict of interest. The court recognizes the problem which exists where two lawyers of the same law firm are employed by separate defendants in a criminal case and states in the syllabus the following principle of law:
“A lawyer should not accept or continue representation of any client if the lawyer’s partner or associate would be disqualified from accepting or continuing the same employment due to a conflict of interest or if the representation creates an appearance of impropriety.” Syl. ¶ 3.
With these professional standards and decisions in mind, we turn now to the factual circumstances presented in the case now before us. Marian Burns, as appointed counsel for the defendant, was notified by the county attorney by letter after the preliminary hearing that a conflict of interest existed because she represented the defendant Nelson Lem’Mons at the same time her law partner, Clyde Burns, was representing Charles Peterson. It 'would be extremely difficult to find a case with a more obvious conflict of interest than is presented by the factual circumstances in the present case. The child victim in this case accused not only defendant Lem’Mons but also her father, Charles Peterson, and a third man of a sexual attack upon her. The father, Charles Peterson, who was the defendant in another case involving the same charge, took his daughter to the sheriff s office and was one of the persons who originally accused Lem’Mons of having committed the crime. Peterson was charged with the same offense based upon the statements made by his daughter. His defense was that he had not committed the crime and that it was defendant Lem’Mons who was the offender.
Marian Burns, as appointed counsel on behalf of Lem’Mons, took the position that the charges against Lem’Mons had been dreamed up by Charles Peterson and that it was Peterson who was guilty of sexual attacks on the child. The conflict of interest here is obvious. This conflict of interest was shown at the preliminary hearing and continued during the trial itself. At the preliminary hearing, Marian Burns stated for the record that it was her position that Charles Peterson, who was her own law firm’s client represented by her husband, Clyde Burns, was the actual perpetrator of the crime.
At the trial, Marian Burns called Charles Peterson as a witness on behalf of the defendant and asked him questions of a self-incriminating nature. It reached the point where the prosecution objected to further questions on the subject. Thereupon, the court deemed it necessary to advise Peterson that he should have the advice of counsel before answering any further questions. The court noted that Peterson had been sentenced by the court the previous day in a criminal case where plea bargaining had taken place involving the dismissal of the same charges against him for sexual abuse of his daughter. The record shows that the court told Peterson that he was entitled to have an attorney advise him as to his immunities and his rights. The court specifically advised him that it did not believe that it would be appropriate for Peterson to be advised by Marian Burns or a member of her firm. The witness Peterson stated he didn’t believe he needed any advice. It is difficult to imagine a situation where a conflict of interest could be more evident.
The county attorney, in his memorandum of law in support of the State’s motion to excuse counsel, clearly anticipated the extreme problem of conflict of interest which arose in this case. In that memorandum, the county attorney pointed out that if Marian Burns attempted to call Peterson she would be forced either to impeach her firm’s client, Peterson, or be in a position where she could not give Lem’Mons her undivided loyalty. The prosecution took the position in the trial court and did not deny in its oral argument before this court that there was a clear conflict of interest in this case.
In our judgment, when two defendants involved in the same criminal transaction implicate each other and point the accusing finger at the other as in this case, there can be no undivided loyalty to each client. We do not understand why the trial court did not take up the State’s motion and hold an in-depth hearing on the question of conflict of interest. In the trial court, the county attorney in his memorandum of law in support of the State’s motion to excuse counsel stated as follows:
“In this case, there is not merely a possibility of harm; rather the harm is concrete and actual. Relying upon Mrs. Burns preliminary hearing arguments, as well as her motion to bring forth testimony in regards to Mr. Peterson abusing his daughter, as well as comments to the prosecution intern, show that a conflict is not merely speculative but actual. ... It is clear that ‘undivided loyalty’ by the firm of Burns & Burns to either Lem’Mons or Peterson is a legal and factual impossibility after what has already transpired.”
On appeal, the State in its brief argues, in substance, that defense counsel’s performance fell within reasonable professional assistance. Furthermore, it is argued that the evidence against defendant Lem’Mons was overwhelming and that the record fails to show any prejudice as the result of the representation by Marian Burns. This court simply cannot accept that position. The courts of Kansas have an obligation to protect the rights of a person charged with a criminal offense and see that such a person is afforded a fair trial. In the case now before us, the representation of the defendant Lem’Mons by Marian Burns constituted a conflict of interest clearly in violation of DR 5-105, Kansas Code of Professional Responsibility; 1 ABA Standards for Criminal Justice, The Defense Function, § 3.5(b); and the basic concepts contained in the decisions of this court and the United States Supreme Court discussed in the opinion. The defendant is entitled to a new tidal where he must be represented by counsel not subject to a conflict of interest.
As to the other points raised on the appeal, the court declines to rule on those issues. In a new trial of this case, the same issues may arise again and, assuming appropriate action is taken by defense counsel to protect the rights of the defendant, the trial court should reconsider its various evidentiary rulings and the other questions raised. We leave those decisions to the trial court when the case is again retried before a jury.
For the reasons set forth above, the judgment of the district court is reversed and the case is remanded to the district court with directions to afford the defendant a new trial.
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|
The opinion of the court was delivered by
Herd, J.:
This is an appeal from the judgment of the district court of Miami County denying a petition for a writ of habeas corpus.
Appellant, Brad Lee Gilchrist, was charged in the municipal court of Osawatomie with battery under the Osawatomie Municipal Code. The complaint charged Gilchrist with grabbing one Linda Cunningham by the hair and throwing her into the bushes on December 9, 1984.
At some point, although not part of the record on appeal, Gilchrist claims he filed a complaint against Linda Cunningham for battery arising out of the same incident.
On December 13, 1984, Gilchrist made his first appearance before the municipal court judge. No record was made of the proceedings. Gilchrist pled not guilty and trial was set for December 20, 1984.
Gilchrist appeared without counsel in the municipal court on December 20, 1984. A trial was held and Gilchrist was found guilty of battery. The trial was in municipal court and, once again, no record was made.
The trial court continued the proceeding to the following day for sentencing. Gilchrist again appeared without counsel and told the court he wanted counsel present. In spite of the request, the court proceeded to fine him $300 and sentence him to 90 days in jail.
The trial court advised Gilchrist he had 10 days to appeal the municipal court judgment. Gilchrist notified his retained counsel of the date of his conviction and that he wished to appeal. No appeal was taken.
On January 11, 1985, Gilchrist was confined to the Miami County jail. That same day, Gilchrist filed a petition for a writ of habeas corpus with the district court of Miami County. Appellant’s contention in support of his petition is that he was denied his Sixth Amendment right to counsel in the municipal court proceedings.
A hearing was held on the writ before the district court on January 15, 1985. At the hearing, the municipal judge testified that at the time of appellant’s first appearance, the charges against him were read and the penalties explained. Additionally, the municipal judge testified he knew Gilchrist from prior court proceedings where Gilchrist was represented by counsel. He knew Gilchrist was not indigent. He asked the appellant if he intended to have an attorney at this trial. The appellant replied he did not wish to have an attorney.
Appellant admitted under oath that this testimony was correct. However, he testified that since he had filed a “cross-complaint” against the complaining witness for battery, he assumed the city attorney would represent his interests. Thus, he claims his waiver of the right to counsel was not “knowingly and intelligently” made.
At the sentencing hearing Gilchrist appeared without counsel and specifically requested he be entitled to have his counsel present. The municipal judge denied the request on the grounds it would be unnecessary since Gilchrist would have ten days to appeal the judgment with a de novo trial in the district court.
Finally, appellant testified he employed counsel on either December 26 or December 27,1984, to represent him in the case on appeal. According to the appellant, he told his counsel, David Gilman, he had until December 31, 1984, to perfect the appeal. No appeal was taken.
At the conclusion of the hearing, the district court found it “was not satisfied with the procedure of the Court in discussing with the Defendant his right to counsel and securing a waiver.” But, nevertheless, it denied the writ, because Gilchrist failed to appeal and a writ of habeas corpus is not a substitute for an appeal. Additionally, the district court found Gilchrist was not indigent, had employed counsel in the past and his claim that he believed the city attorney was obligated to both prosecute and defend him since there was a cross-complaint on file had no credibility. Though not specifically stated, it is implicit in the findings that the district court also found Gilchrist knowingly waived his right to counsel.
After the writ was denied, Gilchrist was released on bond, pending this appeal.
The first question raised by the petitioner’s appeal is whether a petition for writ of habeas corpus can be entertained, since petitioner failed to perfect an appeal to the district court.
K.S.A. 1984 Supp. 22-3609 allows ten days for an appeal to the district court from the judgment of a municipal court. The appeal stays all proceedings upon the municipal court judgment and the case is tried de novo in the district court. K.S.A. 1984 Supp. 22-3610.
At the hearing on his application for a writ of habeas corpus, appellant testified he employed an attorney to represent him on appeal just a few days after he was sentenced. Additionally, the municipal court judge testified that he advised appellant of his statutory right to appeal after the sentencing.
No reason is given why an appeal was not perfected and appellant does not raise an ineffective assistance of counsel claim.
We have held that a petition for habeas corpus is not a substitute for appeal in a criminal case. Hall v. Hand, 190 Kan. 482, 484, 375 P.2d 632 (1962); State v. Shores, 187 Kan. 492, 357 P.2d 798 (1960). While we have found no Kansas authority applying this rule to the failure to take an appeal from the municipal court, the general rule applies.
It is generally held if the constitutional rights of the accused are at issue, habeas corpus is available as a remedy under certain circumstances even though no direct appeal was taken. While there are a number of Kansas cases dealing with post-trial release for violation of a prisoner’s constitutional rights, they relate to K.S.A. 60-1507. K.S.A. 60-1507 was not available to petitioner since it may be used only by a prisoner in custody under sentence of a court of general jurisdiction. A municipal court is not a court of general jurisdiction.
The general rule regarding the scope of remedy on a writ of habeas corpus is set out at 39 Am. Jur. 2d, Habeas Corpus § 11, p. 185:
“The function of a writ of habeas corpus in permitting the petitioner to challenge by collateral attack the jurisdiction under which the process or judgment by which he is deprived of his liberty was issued or rendered cannot be distorted by extending the inquiry to mere errors of trial courts acting within their jurisdiction. However, the principle that habeas corpus is not a remedy for the review of mere errors or irregularities is not to be so applied as to destroy constitutional safeguards of life and liberty. The writ is not and never has been a static, narrow, formalistic remedy. Its scope has grown to achieve its purpose — the protection of individuals against erosion of the right to be free from wrongful restraints on their liberty.”
Thus, we must consider whether a constitutional right of the accused is in issue.
Petitioner alleges he was not properly advised of his right to counsel in the municipal court proceedings, nor did he make a valid waiver of his right to counsel.
In a criminal prosecution, the Sixth Amendment mandates that one charged with a crime is entitled to the assistance of counsel. This requirement is made obligatory on the State by the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335, 9 L.Ed.2d 799, 83 S.Ct. 792 (1963).
In Argersinger v. Hamlin, 407 U.S. 25, 37, 32 L.Ed.2d 530, 92 S.Ct. 2006 (1972), the United States Supreme Court held:
“[A]bsent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.”
Thus, the fundamental right to counsel is guaranteed equally in felony cases and to persons charged with misdemeanors where imprisonment may follow conviction.
Although petitioner was tried, convicted and sentenced in a municipal court for violation of a municipal ordinance, appellant was still entitled to assistance of counsel. The right to counsel defined in Argersinger does not depend upon the character of the court in which a defendant is charged.
Since petitioner here was sentenced to 90 days’ imprisonment but was not represented by counsel at trial, a constitutional right of the accused is in issue. We hold habeas corpus is a proper remedy to challenge the validity of the trial court judgment on constitutional grounds.
We now consider the merits of petitioner’s claim that he was denied his constitutional right to counsel.
The first difficulty which arises is that municipal courts are not courts of record and, therefore, there is no record of the conversation which took place between the petitioner and the municipal court judge regarding his right to counsel.
At the district court hearing on petitioner’s application for a writ of habeas corpus, the municipal court judge testified he had presided over proceedings against appellant on two or three previous occasions where appellant had appeared with counsel and he knew Gilchrist was not indigent. He inquired of petitioner whether he intended to have an attorney at the trial to be set for a later date. Gilchrist allegedly responded he did not wish to have an attorney. Gilchrist admitted the truth of this testimony.
The question then is whether this exchange between Gilchrist and the municipal judge, when considered in light of the surrounding circumstances, sufficiently advised the accused of his right to counsel. If so, we must thereafter determine whether Mr. Gilchrist’s response to the judge’s question constituted a waiver of his right to counsel.
The Court of Appeals, in State v. Daniels, 2 Kan. App. 2d 603, 607, 586 P.2d 50 (1978), summarized the trial court’s duty to advise the accused of his right to counsel:
“When any person is accused of an offense, whether misdemeanor or felony, for which he or she may be imprisoned (as defined ijr Argersinger v. Hamlin, 407 U.S. 25), that person must be informed of the right to retained or appointed counsel before he or she can make a knowing and intelligent waiver of counsel.”
Additionally, the court stated the trial judge must advise the defendant of his right to counsel in “clear and unequivocal language.” p. 607.
In this case we have an accused with whom the court was well acquainted through previous appearances in the same court with counsel. Mr. Gilchrist is an intelligent high school graduate, earning $3,000 to $3,500 per month. With this information in mind, the municipal judge addressed the accused at first appearance, read the complaint and the potential sentence to him and asked him how he pled. Gilchrist pled “not guilty.” The court then set the case for trial a week later and asked Gilchrist if he was going to have a lawyer at the trial. Gilchrist responded he did not intend to employ counsel.
We distinguish this case from both Argersinger and Daniels. There, the defendants were indigent with the resulting unavailability of counsel. Here, Gilchrist was not indigent and had employed counsel in several previous cases. In fact, at the time of the proceedings in question, he had retained counsel in a case pending against him in another county. The municipal judge read the complaint to Gilchrist and he acknowledged he knew he was charged with battery. The judge then read him the penalty ordinance and asked him if he was going to have his lawyer present at the trial set for a week later. Gilchrist knew he could have an attorney at trial if he so desired and, from his previous court experience, he knew the nature and difficulties of a trial.
From this set of circumstances, we conclude in this case Mr. Gilchrist was adequately apprised of his right to counsel.
Now let us turn to the related issue of whether Gilchrist made a knowing and intelligent waiver of his right to counsel.
In State v. Daniels, 2 Kan. App. 2d at 605-06, the Court of Appeals reviewed the principles and rules to be applied in determining the validity of a waiver of counsel:
“A defendant may waive the right to counsel. The waiver, however, may not be presumed from a silent record, and the state has the burden of showing that an accused was advised of his right to counsel, either retained or appointed, and that waiver of counsel was knowingly and intelligently made. Carnley v. Cochran, 369 U.S. 506, 8 L.Ed.2d 70, 82 S.Ct. 884 (1962). The right to counsel in a case where a person may be imprisoned is a right guaranteed by the United States Constitution and as such the attempted waiver of that right should be strictly construed. Whether an accused knowingly and understandably waived his or her right to counsel after the assistance of counsel was offered would depend on the particular facts and circumstances of each case. State v. Irving, 216 Kan. 588, 589, 533 P.2d 1225 (1975).” (Emphasis added.)
The court also directed that a defendant’s waiver of counsel must be recorded either stenographically or electronically in the district court.
The Court of Appeals further refined their discussion of waiver of the right to counsel in State v. Andrews, 5 Kan. App. 2d 678, 680, 623 P.2d 534 (1981). The court held that even if the trial court conducted an extensive inquiry into the defendant’s desire to waive counsel, if that inquiry did not appear in the record, the State could not meet its burden of proving that defendant’s waiver of counsel was knowingly and intelligently made and therefore, defendant’s Sixth Amendment right to counsel was abridged.
Since the hundreds of municipal courts across this state are not courts of record, and most of them have no recording capability, we cannot require every waiver of counsel to be recorded.
A municipal court is, however, capable of obtaining a written waiver of counsel from a criminal defendant after he has been fully advised of his right to counsel. Additionally, the municipal court should make a thorough inquiry to ascertain if a defendant knowingly and intelligently desires to waive his right to counsel.
In Daniels, 2 Kan. App. 2d 603, the Court of Appeals suggested guidelines for the trial judge to apply in determining whether defendant’s waiver was knowing and intelligent.
“The ABA Standards Relating to the Function of the Trial Judge, § 6.6 at 84, 85 (Approved Draft, 1972), suggest the trial judge’s inquiry show that the defendant:
“ ‘(i) has been clearly advised of his right to the assistance of counsel, including his right to the assignment of counsel when he is so entitled;
“ ‘(ii) possesses the intelligence and capacity to appreciate the consequences of this decision; and
“ ‘(iii) comprehends the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding of the case.’
“To that, we would suggest that the trial judge also inform the defendant (1) that defendant will be held to the same standards as a lawyer; (2) that the trial judge may not aid the defendant in his defense; and (3) that it is advisable to have a lawyer due to the specialized knowledge necessary to conduct a trial and the fact that a lawyer is trained in the law.” 2 Kan. App. 2d at 607-08.
See also State v. Williams, 226 Kan. 82, 83-84, 595 P.2d 1104 (1979).
A suggested waiver of counsel form is printed in the Kansas Municipal Court Manual, Traffic and Municipal Ordinance Violations § XII, p. 12 (rev. ed. 1981). We include a copy of that form in this opinion at page 212 and recommend that it be used by the municipal courts of this state in cases where an accused may be deprived of his liberty.
In the instant case the accused did not make a written waiver nor was a record made of his colloquy with the court. Municipal courts’ lack of records and recording equipment are valid, excusable reasons for this oversight. The failure to obtain a signed waiver of counsel on the forms previously set out herein presents a more serious problem. However, the reason for the require ment of a record of the proceedings and a written waiver of counsel are for the purpose of proving an accused was properly advised of his rights and that he knowingly and intelligently waived those rights. Here, Brad Lee Gilchrist admitted he was informed by the trial judge of the charges against him and of the penalties which could be imposed. Further, Gilchrist admitted the municipal judge questioned him concerning his intention to hire counsel and that he responded he did not intend to employ counsel. These admissions by the petitioner cure any defect resulting from the absence of a written waiver and eliminate the problem of proof.
The issue of whether the waiver of counsel was knowingly and intelligently made presents an additional problem. Gilchrist admitted he had retained counsel to represent him in numerous other criminal proceedings. He admitted he was financially able to retain counsel. His discussion with the municipal judge concerning counsel occurred a week before the trial. Gilchrist was free on bail during that time and he could have discussed the case with his lawyer. Nevertheless, he appeared in court without counsel and proceeded to trial. His ploy in filing a so-called “cross-petition” against Ms. Cunningham, his accuser, to compromise the prosecutor and obtain a free defense is not helpful to his cause, as it appears to be a sophisticated maneuver to manipulate the criminal justice system to his advantage. His explanation that he thought the prosecutor would thereby be required to defend him lacks credibility, as stated by the district court judge. We hold Brad Lee Gilchrist made a knowing and intelligent waiver of his right to counsel at the trial.
After Mr. Gilchrist was found guilty of battery, the municipal judge continued the date for sentencing until the next day, December 21. The appellant continued free on bond under the same circumstances as we have previously noted. He appeared for sentencing the next day and asked to have his attorney present for sentencing. The court advised him he had the right of appeal with a de novo trial and an automatic stay. There is validity to that statement but the constitutional right to counsel does not recognize the distinction. An accused has the right to counsel at the sentencing stage of criminal trial proceedings. Once Gilchrist had advised the court he wanted counsel with him for the sentencing, he was entitled to a continuance in order to retain an attorney for that proceeding.
The judgment of the trial court is reversed and Brad Lee Gilchrist ordered released under a writ of habeas corpus and ordered to return to the municipal court of the City of Osawatomie for resentencing.
NOTE: The suggested waiver of counsel form referred to on page 209 appears in full on page 212.
SAMPLE WAIVER
FOR THE CITY OF COUNTY, KANSAS
CITY OF Plaintiff, vs. (Municipal Court Identification No. _____) ________ _, Accused Person
WAIVER OF COUNSEL
The undersigned acknowledges that he or she lias been informed by the Municipal Court of the charges against him or her, of the possible penalty, of the nature of the proceedings before the Court, of his or her right to have counsel appointed to represent him or her, if he or she. is financially unable to obtain counsel and is determined to be indigent, all 'of which the undersigned fully understands. The undersigned now slates to the Court that he or she does not desire to have counsel, either retained or appointed, to represent him or her before the Court, and wishes to proceed without counsel.
SUBSCRIBED AND SWORN TO before me this _ day of 19
I hereby certify that the above named person has been fully informed of the charges against him or her and of the accused's right to have counsel, either retained or appointed, to represent the accused at the proceedings before this Court and that the accused has executed the above waiver in my presence, after its meaning and effect have been fully explained to the accused, this___day of____, 19_.
JUDGE OF THE MUNICIPAL COURT | [
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The opinion of the court was delivered by
Miller, J.:
This is a direct appeal by Michael L. O’Neal from his convictions by jury trial in the District Court of Sedgwick County of rape, K.S.A. 1984 Supp. 21-3502, and aggravated criminal sodomy, K.S.A. 1984 Supp. 21-3506.
The defendant raises three issues; that the'trial court erred in the admission of defendant’s in-custody statement; that the court erred in permitting a witness to comment upon defendant’s silence; and that the court erred in allowing the State to impeach the testimony of two prosecution witnesses by use of their prior statements.
The defendant does not challenge the sufficiency of the evidence to establish the offenses, and therefore we do not need to set forth the facts in great detail. The victim, while walking along a Wichita street in the nighttime, was approached by a man. She joined him and walked to a nearby car in which two of his friends, one being the defendant, were seated. She accepted their invitation to go with them. They played pool, purchased and drank liquor, spent time drinking and dancing in a local establishment, and after midnight arrived at the apartment of a fourth man. Eventually, the victim and the defendant were left alone in the apartment. The victim testified that the defendant forced her to have oral and anal sex and sexual intercourse. The defendant testified in his own behalf that they had oral sex and sexual intercourse, but that it was consensual. The jury accepted the victim’s version and convicted the defendant.
The first issue raised concerns an interview of the defendant by Detective Clark at the Sedgwick County Jail on April 18, 1984. While the evidence is unclear, it appears that the defendant was in custody on an unrelated offense. Detective Clark, upon being advised that defendant was in custody, arranged to have defendant brought to an office at the police station. When Detective Clark introduced himself, the defendant immediately advised the officer that he had talked to his attorney, Janet Helsel, and that she advised him not to talk to the police unless she was present. The detective said that was fine and started to leave. The defendant inquired what this was all about, and the detective stated that he could not explain anything to him unless the defendant wished to waive his rights. Defendant said that he wanted to waive his rights and wanted to talk with the officer. Detective Clark then took out a standard Miranda rights form, went over each provision with the defendant and made sure that the defendant understood his rights. At the conclusion, defendant signed the form. Defendant then asked the officer what the charges were. The officer responded that he was working on two different cases. One involved a seventeen-year-old girl. That case is not involved here, and no mention was made of that case during the jury trial in this case. The other matter that the officer was working on was this case. The detective knew only the first names of two of the other men and he told the defendant that if he had any witnesses, such as Bob or Richard, if he would tell Clark their names, Clark would interview them. Defendant responded that he knew about the incident and stated that he was not really worried about it. The detective testified that the defendant “didn’t wish to tell me who the witnesses were or who Bob was or who Richard was.” At that point, Miss Helsel appeared and the interview was terminated.
On cross-examination, the detective said that defendant merely responded that he “wasn’t really worried about it,” and the detective surmised- that because of the evasive response defendant did not want to disclose the full names of the witnesses.
The trial court held a Jackson v. Denno hearing and heard the testimony of the officer outlined above. The court then ruled that the defendant was properly and adequately advised of his constitutional rights, that he waived those rights, and that the conversation was admissible. The trial then resumed and the officer’s testimony disclosing his conversation with the defendant was admitted in evidence.
Defendant argues that his constitutional rights were violated because the officer knew that he was represented by counsel who had requested that the defendant not be questioned unless she was present. In support of this contention, defendant cites Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602 (1966), and other cases, all of which support the rule that when an accused expresses a desire to have counsel present during interrogation, the police must terminate their questioning of the defendant until counsel is made available to him. This rule, however, does not appear to be applicable here. As soon as the defendant stated that he had counsel and repeated what she had told him, the detective terminated the conversation and started to leave. Defendant then asked the officer what it was all about, and the detective responded in effect that he could not talk to the defendant unless he wished to waive his rights. Defendant did not at any time request that his attorney be notified nor did he say that he did not wish to speak to the officer until counsel was present.
Where one who is in custody expresses a desire to deal with the police only through counsel or when counsel is present, further interrogation must cease until counsel is present. However, an accused may waive the right to have counsel present and, where the accused voluntarily initiates further communication, the officers are not precluded from responding. See Ed wards v. Arizona, 451 U.S. 477, 484-85, 68 L.Ed.2d 378, 101 S.Ct. 1880 (1981), and Oregon v. Bradshaw, 462 U.S. 1039, 1044-45, 77 L.Ed.2d 405, 103 S.Ct. 2830 (1983). The question is whether the defendant, after asserting the right to have counsel present, initiated further conversation with the officer and knowingly and intelligently waived his right to have counsel present. The defendant appears to contend that once the police know a person is represented by counsel and has been told not to talk to the police officers, the officers cannot under any circumstances have any further conversation with that person. We rejected that rule in State v. Costa, 228 Kan. 308, Syl. ¶ 3, 613 P.2d 1359 (1980):
“An accused may effectively waive the right to have counsel present during any police interrogation. The fact that he has previously retained counsel does not necessarily make inadmissible a voluntary statement made by the defendant in his counsel’s absence.”
Here, defendant first informed the officer that he had counsel and had been advised not to talk in her absence. The officer started to leave. Defendant then asked direct questions of the officer concerning the investigation. Under all of the circumstances disclosed in this record, we conclude that the defendant initiated further conversation with Detective Clark and knowingly and intelligently waived his right to have counsel present while he spoke with that officer.
Defendant also argues that the detective played a “cat and mouse” game with him in refusing to tell him what the investigation was about unless the defendant waived his rights. We do not so read the record. The detective properly terminated the communication as soon as the defendant stated that he had counsel who had directed him not to talk to the officers unless counsel was present. Had the officer proceeded to discuss the matter with the defendant, and had the defendant made any statements or comments, defendant would most certainly argue vociferously that such statements were secured in violation of his Miranda rights. The officer was correct in explaining those rights to him in detail and in refusing to have further conversation with the defendant unless he was willing to knowingly and intelligently waive those rights. We conclude that the conversation was admissible in evidence.
Defendant next argues that the trial court erred in allowing Detective Clark to testify that the defendant did not answer Clark’s question as to the identity of Bob and Richard. Defendant contends that this evidence violated his Fifth and Fourteenth Amendment rights because it constituted an impermissible use of his silence or his refusal to answer questions. As we noted above, defendant did not refuse to answer the question, he simply replied in an unresponsive manner that he knew of the incident and ha was not worried about it. The officer concluded that he did not want to disclose the witnesses’ names. Defendant was merely nonresponsive. This is not a situation where the prosecution was using an accused’s refusal to answer a question to impeach his credibility by emphasizing his silence. There was no later comment upon this part of the detective’s testimony and no mention of it during closing argument.
The record discloses that the defendant did not object to Clark’s testimony either at the Jackson v. Denno hearing or during trial on the ground that his testimony constituted an impermissible use of his silence. Where constitutional grounds for a reversal of a conviction are first raised on appeal, they are not properly before the appellate court for review. State v. Budden, 226 Kan. 150, 595 P.2d 1138 (1979); State v. Berry, 223 Kan. 566, 575 P.2d 543 (1978); State v. Estes, 216 Kan. 382, 532 P.2d 1283 (1975); State v. Harder, 8 Kan. App. 2d 98, 650 P.2d 724 (1982).
Even if we were to consider the admission of this testimony as error, it is difficult to see how the defendant was prejudiced. The dispute was whether the sex acts were forcible or consensual. There is no contention that either of the two witnesses, Bob or Richard, were present when the acts took place. The defendant contended that the sex was mutually agreeable and he was not worried about the matter. He did not need any further investigation of witnesses. We conclude that there was no reversible error.
Finally, defendant contends that the trial court erred in allowing Detective Clark to testify in rebuttal concerning certain written statements given to him by State’s witnesses Womack and Haynes, two of the men who were with the defendant and the victim earlier in the evening. They both were called as State’s witnesses, and their testimony paralleled their statements with the exception that each witness also testified that the victim continually displayed sexually aggressive behavior toward the defendant throughout the course of the evening. That matter was not included in their written statements and had not been disclosed to the detective. Clark was called on rebuttal and testified without objection as to the contents of the witnesses’ statements, and that the witnesses did not tell him about the victim’s “aggressive sexual behavior” although he gave them ample opportunity to do so. Defendant’s only objection was made at the conclusion of the testimony when the State offered the written statements in evidence. The trial court sustained that objection and the written statements were not admitted.
It is clear from the record that the defendant at no time objected to the detective’s testimony; the only objection went to the admission of the written statements, and that objection was sustained. We have reviewed the rebuttal testimony of the detective and find no error in its admission. Additionally, appellate courts will not review alleged error in the admission of evidence in the absence of timely objection. See State v. Garcia, 233 Kan. 589, 608, 664 P.2d 1343 (1983); K.S.A. 60-404.
The judgment is affirmed. | [
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