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The opinion of the court was delivered by
Lockett, J.:
Kansas City Power & Light Company (KCP&L) appeals from a decision of the District Court of Linn County, Kansas, upholding an order of the State Corporation Commission (KCC) which requires an electric utility to enter into a contract to purchase electricity from a cogenerator or small power producer. The KCC order was in implementation of § 202 and § 210 of the federal Public Utility Regulatory Policies Act of 1978 (PURPA, codified as amended at 16 U.S.C. §§ 824a-3, 824i [1982]), Federal Energy Regulatory Commission (FERC) regulations implementing PURPA (18 C.F.R. §§ 292.101-.602 [1985]), K.S.A. 66-1,184, and K.S.A. 66-1,185.
A statement of the facts involved in this case is set forth in Kansas City Power & Light Co. v. Kansas Corporation Comm’n, 234 Kan. 1052, 676 P.2d 764 (1984). The facts surrounding the federal statute are set forth in FERC v. Mississippi, 456 U.S. 742, 72 L. Ed. 2d 532, 102 S. Ct. 2126 (1982).
In 1978, the Congress of the United States enacted the Public Utility Regulatory Policies Act of 1978 (Pub. L. No. 95-617). Congress acted in concern for the energy crisis and the rapid increases in the cost of electricity. Section 210 of the act directed the Federal Energy Regulatory Commission to promulgate rules to encourage cogeneration. FERC enacted a rule requiring utilities to purchase electric energy from qualifying cogenerators and small power production facilities (cogenerators) at a rate equal to the utility’s “full avoided cost.” FERC also required utilities to make such physical interconnection with cogenerators as necessary to effect purchases of sales of electricity authorized by PURPA. In 1979, the Kansas legislature responded to PURPA by enacting K.S.A. 66-1,185, which gave the KCC such jurisdiction as was required to comply with and carry out the requirements of PURPA and the rules and regulations adopted by FERC. To carry out the legislature’s mandate, the KCC adopted rules and regulations.
In Kansas City Power & Light Co. v. Kansas Corporation Comm’n, 234 Kan. 1052, this court determined that the orders of the KCC which required an electric utility to purchase electricity from a cogenerator at a rate greater than the federally regulated rate (avoided cost to the utility) were unlawful, unless the KCC first obtained a waiver from FERC. That determination made it unnecessary for this court to discuss the constitutional issues raised by KCP&L at that time. On this appeal, KCP&L raises the constitutional issues.
In FERC v. Mississippi, 456 U.S. 742, the United States Supreme Court held that Congress, acting under its police powers for the protection of the public health, safety, and welfare and the preservation of national security, exercised congres sional authority under the commerce clause of the Constitution to enact PURPA to encourage development of cogenerators. The Supreme Court determined that the Congress had authority to act under the commerce clause of the Constitution, and it did not entrench upon state sovereignty in violation of the Tenth Amendment. The Court did not consider whether the act violated any other sections of or amendments to the Constitution.
In American Paper Inst. v. American Elec. Power, 461 U.S. 402, 76 L. Ed. 2d 22, 103 S. Ct. 1921 (1983), the Supreme Court determined that FERC did not act arbitrarily or capriciously in promulgating certain regulations as to the cost of purchasing electricity from cogenerators and that requiring public utilities to make interconnections with cogenerators was necessary to consummate purchases and sales authorized by PURPA. No purchase or sale of power required by PURPA could be completed without an interconnection between the buyer and the seller.
Both American Paper Institute, Inc., an intervenor-appellee, and Martin Tractor Company, Inc., amicus curiae, contend that the United States Supreme Court determined that PURPA was constitutional in FERC v. Mississippi, and that the regulations implementing the PURPA provisions were lawful in American Paper Inst. v. American Elec. Power, 461 U.S. 402, and, therefore, this court does not need to consider their constitutionality. They contend that United States Supreme Court decisions are precedent for issues of constitutional law even though the issue is not briefed or argued before the Court, and even though the Court’s opinion contains no discussion of the issue. Hicks v. Miranda, 422 U.S. 332, 45 L. Ed. 2d 223, 95 S. Ct. 2281 (1975). They argue that since the Court in FERC v. Mississippi, 456 U.S. 742, determined that the act did not violate the Tenth Amendment, that decision necessarily indicates that the act does not violate any provisions of the Constitution. We do not agree. In Hicks v. Miranda, 422 U.S. 332, the United States Supreme Court was discussing that court’s use of summary decision without a written opinion when affirming the judgment of a lower federal court. Here, the Court in a written opinion made a specific determination that the act did not violate the Tenth Amendment. Whether the act violated the Fifth or Fourteenth Amendments was not determined.
We are asked by KCP&L to declare that a federal statute violates the constitutions of both the United States and the State of Kansas. If a federal statute does not violate the Constitution of the United States, it cannot be held unconstitutional on the grounds that it violates a state constitution. Under the circumstances, whether PURPA violates our state constitution is beyond the jurisdiction of this state appellate court to determine. McCulloch v. Maryland, 17 U.S. 316, 4 L. Ed 579 (1819). The only issue we need to determine is whether PURPA and the regulations promulgated by FERC violate the Fifth Amendment of the Constitution of the United States.
KCP&L raises these constitutional issues:
1. Whether the statutory scheme of PURPA unconstitutionally authorizes the taking of property without compensation and for the use of private persons in violation of the Fifth Amendment of the Constitution.
2. Whether the appellant’s right to freedom of contract under the Fifth Amendment is violated by forcing the appellant to purchase electricity from third parties.
3. Whether the statutory scheme of PURPA violates the appellant’s due process rights guaranteed by the Fifth Amendment.
KCP&L contends that PURPA contains several violations of the taking clause of the Fifth Amendment of the United States Constitution. The KCC contends that there are no violations of the taking clause.
The Fifth Amendment states:
“nor shall private property be taken for public use, without just compensation.”
The Supreme Court has stated that the Fifth Amendment clause providing that private property shall not be taken for public use without just compensation was designed to bar government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole. Penn Central Transp. Co. v. New York City, 438 U.S. 104, 57 L. Ed. 2d 631, 98 S. Ct. 2646 (1978).
The question of what constitutes a “taking” of private property has proved to be a problem of considerable difficulty. There have not developed any rigid rules or set formula for determining when justice and fairness require that economic injuries caused by public actions be compensated. Whether there is a compensable “taking” under the Fifth Amendment depends largely upon the particular circumstances of each case. Penn Central Transp. Co. v. New York City, 438 U.S. at 124.
KCP&L contends that its Fifth Amendment right to just compensation for the taking of property has been violated by the statutory and regulatory scheme promulgated under PURPA. It contends that the statutory scheme has resulted in an unconstitutional taking in three primary areas: (1) it must pay cogenerators the avoided energy cost of energy received; (2) it must allow cogenerators to make physical connection with the KCP&L transmission and distribution system at the site of a KCP&L easement; and (3) it requires KCP&L to idle or forego use of its generating capacity.
KCP&L contends that it is forced to pay its money, which is private property, to private parties, the cogenerators, and that this is a taking of private property for private use.
KCP&L cites Thompson v. Consolidated Gas Co., 300 U.S. 55, 81 L. Ed. 510, 57 S. Ct. 364 (1937), as support for its argument. In that case, the validity of a gas proration order issued by the Railroad Commission of Texas for the Panhandle fields was challenged. Under the orders to protect correlative rights of others in the natural gas pool, the production of natural gas was prorated by restricting the production of well owners, who had constructed pipelines that were necessary to fulfill their existing contracts, to an amount below their contract requirements. To fulfill the contracts, they were compelled to purchase gas from other well owners in the pool of gas, who were prohibited by law from producing because they had no market or pipelines. The court determined that the effect of such orders was to take from the owners, who had a market for their gas, a substantial and valuable interest in their private marketing contracts and the use of their pipelines and other facilities for transmitting their gas to market without just compensation. There was no taking for the public benefit nor payment of compensation provided. 300 U.S. at 77-79.
Thompson can be distinguished on the facts from the present case. The court made clear in Thompson that the pipelines were neither a common carrier of gas nor used in connection with the operation of any public utility. It said that it was beyond the power of the state by legislative fiat to convert property used exclusively in the business of a private carrier into a public utility, or to make the owner a public carrier, for that would be taking private property for public use without just compensation. Michigan Commission v. Duke, 266 U.S. 570, 577-78, 69 L. Ed. 445, 45 S. Ct. 191 (1925).
A utility company has the same rights under the taking clause as other private entities. The federal government may, however, under its police power, regulate a business affected with a public interest and, since the prime characteristic of a public utility is that of public use or service, it is clear that the federal government may regulate and control public utilities to protect the public interest and to promote the health, comfort, safety, and welfare of the people. Great Northern Ry. v. Washington, 300 U.S. 154, 81 L. Ed. 573, 57 S. Ct. 397 (1937).
While the regulations do require the utilities to pay private individuals for electricity supplied by the individuals, the public utilities are not of the same character as a private business, and have always been subject to governmental regulation. The purpose behind PURPA supports such an action. As Congress stated:
“The Congress finds that the protection of the public health, safety, and welfare, the preservation of national security, and the proper exercise of congressional authority under the Constitution to regulate interstate commerce require ... a program providing for increased conservation of electric energy, increased efficiency in the use of facilities and resources by electric utilities, and equitable retail rates for electric consumers.” PURPA, 16 U.S.C. § 2601 (1982).
KCP&L claims that the taking clause is violated because ño just compensation is received for the money taken, as the power received is neither needed nor wanted. The KCC contends that KCP&L is justly compensated for the electricity it must buy.
On October 15, 1984, the KCC issued an order which established a purchase rate for cogenerated energy. The newly established purchase rate for cogenerated energy was based upon the energy cost, primarily fuel, avoided by KCP&L by reason of not generating the energy itself. KCP&L’s cost of cogenerated energy is passed on to its ratepayers on a monthly basis through its energy cost adjustment tariff clause. The newly established purchase rate contains no avoided capacity cost (fixed plant cost) component. The electric service tariffs of KCP&L incorporate a return of and a return on KCP&L capacity costs. KCP&L is reimbursed dollar for dollar by ratepayers for all sums paid by KCP&L to cogenerators. In addition, KCP&L receives a profit because KCP&L rates for resale of cogenerated energy contain a return of and return on capacity cost which is not shared with cogenerators.
In a number of cases involving the condemnation of real property or an interest therein, the United States Supreme Court has recognized the principle that the function of compensation is to put the owner in as good a position pecuniarily as he would have occupied if his property had not been taken. Olson v. United States, 292 U.S. 246, 78 L. Ed. 1236, 54 S. Ct. 704 (1934); Phelps v. United States, 274 U.S. 341, 71 L. Ed. 1083, 47 S. Ct. 611 (1927). It has also applied the rule that where the property condemned has a market, the measure of the owner’s indemnity is generally the market value of the property. United States v. Virginia Electric Co., 365 U.S. 624, 5 L. Ed. 2d 838, 81 S. Ct. 784 (1961); United States v. Twin City Power Co., 350 U.S. 222, 100 L. Ed. 240, 76 S. Ct. 259 (1956).
In the present case, KCP&L is receiving just compensation. It is allowed to charge its ratepayers its “avoided cost” paid to the cogenerators, plus a profit. This satisfies the Fifth Amendment requirement for just compensation.
KCP&L claims that the taking clause is violated because the statutes cause KCP&L, without any compensation therefor, to provide to the private cogenerator the right of permanent physical connection with and the right of permanent physical access to KCP&L’s transmission and distribution network. The KCC contends that there is no taking because the energy transfers to KCP&L from cogenerating customers take place at the meter of the customer and not upon the real property of KCP&L.
KCP&L cites Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S 419, 73 L. Ed. 2d 868, 102 S. Ct. 3164 (1982), in support for its argument. In Loretto, the State of New York enacted legislation to facilitate tenant access to cable television. The law required the installation of cable television facilities upon the landlord’s property for his tenants (noncrossover) and a crossover right to supply tenants of other buildings with cable television. The landlord could not demand payment from either the tenant for permitting CATV (noncrossover), or the CATV company for its crossover installation on the landlord’s property in excess of any amount which the State Commission on Cable Television determined by regulation to be reasonable. Prior to the state law, the landlords were paid five percent of the gross revenues the CATV company received from the landlord’s tenants (noncrossover). The commission determined that a one-time $1 payment was the proper fee for both the crossover and noncrossover installations. A landlord brought suit against a cable television company, alleging that the company’s installation was a trespass and, insofar as it relied on the state law, a taking without just compensation.
A divided United States Supreme Court concluded that the physical occupation of the owner’s property authorized by the state law constituted a “taking” of property for which just compensation was due. In such circumstances, the owner has an expectation of compensation. The court did not question the State’s broad power to impose appropriate restrictions upon the owner’s use of his property. The case was remanded in order that the state court could determine the proper compensation the owner should receive for the “taking” of his property.
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S 419, was decided June 30, 1982, by a divided court. American Paper Inst. v. American Elec. Power, 461 U.S. 402, was decided May 16, 1983, by a unanimous court. Both opinions were written by Justice Marshall. In Loretto, the court determined that the State had the power to impose the restrictions upon the landlord’s property, but state law did not provide just compensation for the taking. In American Paper, the court determined that Congress had properly exercised its authority under the commerce clause when enacting PURPA, since under the act it was necessary to require utilities to make physical connections in order to consummate the purchase of electricity from cogenerators. The court noted that each qualifying cogenerator pays any interconnection costs which the State regulatory authority may assess against the qualifying cogenerator on a nondiscriminatory basis. 18 CFR § 292.306(a)(1982).
The KCC argues that the taking comes under the police power of the federal government and that a taking under the police power can be accomplished without compensation. There is a distinction between the exercise of the police power and a taking by eminent domain. Eminent domain is the taking of property because it is useful to the public, while the police power regulates the use of, or impairs a right in, property to prevent detriment to public interest. In the exercise of eminent domain, private property is taken for public use and the owner is compensated, while the police power regulates an owner’s use and enjoyment of property, or deprives him of it, by destruction, for the public welfare, sometimes without compensation other than the sharing of the resulting general benefits. Constitutional provisions against taking private property for public use without just compensation impose no barrier to the proper exercise of the police power. Busch v. City of Augusta, 9 Kan. App. 2d 119, 674 P.2d 1054 (1983).
Congress has provided that the cogenerator pay compensation to KCP&L for the cost of the connection. Since a utility is adequately compensated for the intrusion, it does not matter whether Congress acted under its police power or as an exercise of eminent domain. KCP&L’s claim that the taking was without just compensation is without merit.
KCP&L contends that it is forced, without any compensation, to suffer the physical intrusion of power into its system and to surrender to private parties the physical use of its transmission and distribution network. The KCC contends that there is no physical intrusion of the cogenerator’s power into the utility’s transmission and distribution system, since the transfer of power to KCP&L by the cogenerator occurs at the customer’s meter. It contends that, once the power passes through the customer’s meter, KCP&L transmits and distributes the power to its customers as needed. We agree.
KCP&L next contends that the statute results in the taking from KCP&L of the right to use its own electrical capacity, without any compensation. KCP&L, when receiving transmissions from cogenerators, must cut back on its own generating capacity and must allow room in its transmission and distribution system for the transmissions from the cogenerators. KCP&L again relies on Thompson and Loretto for its argument that this is an intrusion which results in a taking without compensation.
This claim is similar to issues previously discussed in this opinion. The transfer of power from the cogenerator to KCP&L occurs at the customer’s meter. At that point, it is KCP&L’s power that is transmitted through its system. KCP&L’s cost of the cogenerated power purchased is passed on to its ratepayers. In return, the utility receives its cost plus a profit guaranteed to the utility under the KCC regulations. This claim is without merit.
KCP&L is not without protection to insure that it is able to render adequate service to its users. 16 U.S.C. § 824k (1982) provides that no order may be issued by the Commission under 16 U.S.C. § 824i (1982) unless the Commission determines that such order:
“(1) is not likely to result in a reasonably ascertainable uncompensated economic loss for any electric utility . . .
(2) will not place an undue burden on an electric utility . . .
(3) will not unreasonably impair the reliability of any electric utility . . . and
(4) will not impair the ability of any electric utility affected by the order to render adequate service to its customers.”
Further protection is provided by our legislature. Electric utilities, to insure the safety and quality of their system, have the right to require the cogenerator to limit the production of power to an amount equal to the load at the cogenerator’s facility. K.S.A. 66-1,184.
KCP&L contends that the statutory scheme violates its freedom of contract in three ways: (1) it is not allowed to form its own contracts with the cogenerators, because the statute provides the contract; (2) the compulsory formation and performance of the contract violates the taking clause; and (3) the formation and performance of the contract violates due process.
The Supreme Court has held that freedom of contract is a part of the liberty protected by the due process clauses of the Fifth and Fourteenth Amendments. Board of Regents v. Roth, 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972). Freedom of contract, however, is not absolute, for the freedom of contract guaranteed by the Constitution is freedom from arbitrary restraint, not immunity from reasonable regulation. West Coast Hotel Co. v. Parrish, 300 U.S. 379, 81 L. Ed. 703, 57 S. Ct. 578 (1937). Congress may regulate the making and performance of contracts whenever reasonably necessary to effect any of the purposes for which the national government was created. Highland v. Russell Car Co., 279 U.S. 253, 73 L. Ed. 688, 49 S. Ct. 314 (1929). The power of government extends to the denial of liberty of contract to the extent of forbidding or regulating every contract which is reasonably calculated to injuriously affect the public interests. Atlantic Coast Line v. Riverside Mills, 219 U.S. 186, 202, 55 L. Ed. 167, 31 S. Ct. 164 (1911).
KCP&L argues that it can be regulated only with respect to its area of operation, that it holds itself out as a seller of electricity, and that it, therefore, cannot be forced to become involved in buying electricity.
Among cases cited by KCP&L supporting its argument are:
Transok Pipe Line Co. v. Richardson, 593 P.2d 1079 (Okla. 1978). There, a pipeline company challenged a state statute which required it to connect, at its own expense, and furnish gas to landowners over whose property it had been granted pipeline right-of-way, at less than the cost of the gas furnished. The court concluded that requiring the producer to make gas available for such a purpose was a taking of private property for a private use and in contravention of the state’s constitution.
Cal. Water & Tel. Co. v. Public Util. Com., 51 Cal. 2d 478, 334 P.2d 887 (1959). The case involved review of an order of the Public Utilities Commission purporting to modify the terms of a certain contract between the water utility and the developer of a subdivision. The court determined that within the limits of its jurisdiction, the commission could order a public utility to render certain services on certain terms and conditions, and in so doing it was not bound by the terms of a utility’s previously negotiated contracts. But, it said that the law is clear that an order directing a public utility to set aside its property for a use other than the public use to which the utility has been dedicated cannot be justified.
Ex parte Goodrich, 160 Cal. 410, 117 Pac. 451 (1911), and In Re Opinion of the Justices, 300 Mass. 591, 14 N.E.2d 392 (1938). Both cases deal with statutes requiring electric companies to furnish their consumers with electric light bulbs without charge. In each case, the court held that the selling of electrical appliances was a business separate and distinct from the manufacture, sale and distribution of electrical energy, and that electric companies could not be required to perform a duty outside their original undertaking, unless they were compensated therefor.
The KCC argues that these cases are not applicable to the present situation because it is within the scope of KCP&L’s duty to generate or purchase electric energy for sale to its customers. KCP&L is required to sell electricity, and it must have the electricity available to sell. It can have electricity available by either producing the electricity itself or by buying it from an other producer. The federal statutes requiring the utilities to buy from cogenerators are reasonable considering the purpose behind PURPA and that the required purchase of electricity by the utility is not beyond the scope of the service provided by that utility.
Freedom of contract is a qualified and not an absolute right. Liberty implies the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community. Public utilities are subject to regulation to promote the public good. In the present case, KCP&L’s freedom to contract or not to contract with the cogenerators is not breached by the regulations promulgated under PURPA. The purchase of power from cogenerators for sale to the utility’s customers is not separate and distinct from the manufacture, distribution and sale of the utility’s original undertaking.
KCP&L’s last contention is that the statutory scheme deprives it of due process of law. It contends that it violates the due process clause because the means Congress employed to accomplish its goals lacks a real and substantial relation to its ostensible end. The basic purpose of PURPA was to cut back on the use of scarce natural gas and imported oil to produce electricity. KCP&L notes that KCP&L uses coal to produce over 96 percent of its electricity, yet cogenerators have the right to burn oil or natural gas to produce the heat that they use to produce electricity. KCP&L contends that whereas the market would encourage these businesses to conserve on oil and natural gas, PURPA artificially rewards them for burning oil and natural gas by requiring entities to pay them money and give them property rights free. Because the electricity cogenerators produce is forced into their system, KCP&L is forced to back down on its generation, which uses fuels other than oil and gas. Thus, generators burning coal must be operated at lower, less efficient levels in order to make room for electricity produced by burning oil and gas.
The guaranty of due process found in the Fifth Amendment of the Constitution declares that no person shall “be deprived of life, liberty, or property without due process of law.” If the goals sought by federal legislation are legitimate, and the classification adopted is rationally related to the achievement of those goals, then the action of Congress is not so arbitrary as to violate the due process clause of the Fifth Amendment. Richardson v. Belcher, 404 U.S. 78, 30 L. Ed. 2d 231, 92 S. Ct. 254 (1971).
The test for due process is whether the legislative means selected has a real and substantial relation to the objective sought. The regulation must be reasonable in relation to its subject and adopted in the interest of the community. Manhattan Buildings, Inc. v. Hurley, 231 Kan. 20, 30, 643 P.2d 87 (1982).
Where the requirements of due process are concerned, and in the absence of other constitutional restrictions, the federal government is free to adopt whatever economic policy may reasonably be deemed to promote public welfare and to enforce that policy by legislation adapted to its purpose. The courts are without authority either to declare what policy should be, or, when it is declared by the legislature, to override it. If the laws passed are seen to have a reasonable relation to a proper legislative purpose and are neither arbitrary nor discriminatory, the requirements of due process are satisfied. There is no task left for judicial determination. Whether the free operation of the normal laws of competition is a wise and wholesome rule for trade and commerce is an economic question which this court need not consider or determine. Northern Securities Co. v. United States, 193 U.S. 197, 337-38, 48 L. Ed. 679, 24 S. Ct. 436 (1904). The legislature is the judge of the necessity of such an enactment, every possible presumption is in favor of its validity, and though the court may hold views inconsistent with the wisdom of the law, it may not annul such law unless it is palpably in excess of legislative power. Nebbia v. New York, 291 U.S. 502, 78 L. Ed. 940, 54 S. Ct. 505 (1934).
The federal government may control the conduct of individuals by any regulation which upon reasonable grounds can be regarded as adapted to promote the common welfare, convenience or prosperity. In the present case, the production of electrical power is a relevant concern for Congress. The United States Supreme Court ruled that PURPA was “reasonably adapted to the end permitted by the Constitution.” FERC v. Mississippi, 456 U.S. 742, 758, 72 L. Ed. 2d 532, 102 S. Ct. 2126 (1982). As the Supreme Court has ruled that there was “ample support for Congress’ conclusions,” 456 U.S. at 756, it would be difficult for this court to find that there was not. PURPA was designed to encourage increased conservation of electric energy, increased efficiency in the use of facilities and resources by electric utilities, and equitable retail rates for electric consumers. The law has a reasonable relation to a proper legislative purpose and is neither arbitrary nor discriminatory. Therefore, the requirements of due process are satisfied.
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|
The opinion of the court was delivered by
Schroeder, C.J.:
This is an appeal in a criminal action in which Brian Fowler (defendant-appellant) pled guilty to two counts of aggravated robbery (K.S.A. 21-3427) and was sentenced to the mandatory minimum sentence (five to twenty years for each count) and denied probation pursuant to K.S.A. 21-4618. The defendant contends the trial court erred in imposing sentence under K.S.A. 21-4618 because the pellet gun he used in the commission of the robbery was not a “firearm” for purposes of the statute.
There is no dispute that the weapon used by the defendant was a Crosman .177 caliber pellet gun. At a hearing held by the sentencing court to determine whether this weapon was a “firearm” as that term is used in K.S.A. 21-4618, a firearms expert testified regarding the operation of the weapon. Inside the handle of the gun is a carbon dioxide (COz) cartridge which contains compressed gas. When the trigger is squeezed, the gas is discharged, forcing a pellet through the barrel. The expert noted that the sudden release of the compressed gas is a type of explosion. He further testified that the gun operated essentially the same as a pump air rifle.
The sentencing court ruled that the pellet gun was a “firearm” as that term is defined in State v. Davis, 227 Kan. 174, 177, 605 P.2d 572 (1980). Therefore, the court imposed a mandatory minimum sentence under K.S.A. 21-4618, and, by virtue of the same statute, denied the defendant’s request for probation or suspension of sentence.
The sole issue on appeal is whether the pellet gun is a “firearm” within the provisions of K.S.A. 21-4618, which states in pertinent part:
“Probation or suspension- of sentence shall not be granted to any defendant who is convicted of the commission of the crime of rape, the crime of aggravated sodomy or any crime set out in article 34 of chapter 21 of the Kansas Statutes Annotated in which the defendant used any firearm in the commission thereof and such defendant shall be sentenced to not less than the minimum sentence of imprisonment authorized by law for that crime.” (Emphasis added.)
“Firearm” is not defined by statute. This court supplied a definition in State v. Davis, 227 Kan. 174, Syl. ¶ 2:
“For purposes of sentencing under K.S.A. 1978 Supp. 21-4618, a ‘firearm’ is defined as an object having the design or capacity to propel a projectile by force of an explosion, gas, or other combustion.”
This definition was reaffirmed in State v. Pelzer, 230 Kan. 780, 782, 640 P.2d 1261 (1982).
In Davis, we held a starter pistol is not a firearm within the definition. The starter pistol had a permanent plug in the barrel which prevented the firing of a projectile. We first held it was a dangerous weapon for purposes of raising the offense from robbery to aggravated robbery. (A subjective test was employed— did the victim believe that the weapon was dangerous?) However, since the gun was neither designed for nor capable of propelling a projectile it could not be considered a “firearm” within the meaning of K.S.A. 21-4618.
In Pelzer, this court applied the definition given in Davis in order to determine whether an inoperable (mechanically defective) handgun is a firearm. This court determined that since a “firearm” is to be determined by its design or capacity to propel a projectile, and since the gun had been designed to propel a projectile, the gun was a firearm. In reaching this decision, we noted:
“Any handgun which is designed to propel a projectile is a firearm. Any present disrepair which might render it inoperable does not make it any less a firearm. If the legislature intended to exclude from the term ‘firearm,’ as used in 21-4618, those firearms which are inoperable it could have so stated. This it failed to do.” 230 Kan. at 782.
The defendant in this case relies upon State v. Johnson, 8 Kan. App. 2d 368, 657 P.2d 1139, rev. denied 233 Kan. 1093 (1983). In that case, the Court of Appeals held that a pneumatic (pump) air rifle designed for and capable of shooting BB’s or .177 caliber pellets was not a firearm within the meaning of that term as stated in Davis and Pelzer. The court stated:
“The air rifle used in this case was not originally designed to propel a projectile by explosive force nor did it have the capacity to do so. The air rifle was not a firearm as defined in Davis.” 8 Kan. App. 2d at 370.
The defendant argues that, in light of the similarity between the weapon used by the defendant in the instant case and the weapon discussed in Johnson, the trial court erred by failing to follow Johnson. The defendant also argues that the trial court erred because criminal statutes must be strictly construed against the State and in favor of the defendant.
The State, on the other hand, argues that the gun used by the defendant in this case fits within the Davis definition because it had the “capacity to propel a projectile by force of . . . gas . . . .” Further, expert testimony established that the sudden release of the C02 creates a type of explosion.
It is true that penal statutes are to be strictly construed in favor of the defendant. State v. Rose, 234 Kan. 1044, 677 P.2d 1011 (1984). A criminal statute should not be extended by courts to embrace conduct not clearly included within the prohibition of the statute. However, the rule of strict construction concerning penal statutes is subordinate to the rule that judicial interpretation must be reasonable and sensible to effectuate legislative design and the true intent of the legislature. See State v. Millett, 392 A.2d 521 (Me. 1978).
In Davis, this court defined a previously undefined statutory term with the nature and purpose of the statute foremost in mind. See State v. Pelzer, 230 Kan. at 782. See also Note, Sentencing, Probation and Parole: Mandatory Minimum Terms for Certain Offenses Involving Firearms, 26 Kan. L. Rev. 277, 281 (1978). We adhere to the definition in Davis.
The defendant argues that the definition “explosion, gas, or other combustion” implies some type of explosion or combustion within the firearm as opposed to the “mere” release of compressed gas. The defendant buttresses this argument by noting that Black’s Law Dictionary 761 (4th ed. rev. 1968) was cited as authority for the definition given in Davis. Black’s defines a firearm in terms of whether gunpowder is used to cause an explosion.
Although this court cited to Black’s Law Dictionary, the definition we adopted was intentionally made broader. The court did not limit the definition of firearm to weapons which employ gunpowder. The definition specifically includes weapons designed to propel a projectile by force of an explosion, gas, or combustion. The court did not limit the definition to guns which use gunpowder or similar combustibles.
We have reviewed cases from other jurisdictions which have considered whether a C02-powered pellet gun is a firearm. However, the decisions in these cases are based on each state’s statutory or judicial definition of a firearm. There is no uniformity among the states — some states have included the pellet gun as a firearm, others have not. See, e.g., People v. Gee, 97 Mich. App. 422, 296 N.W.2d 52 (1980) (statutory definition includes pellet gun, but specifically excepts those designed to use pellets not to exceed 177 caliber); State v. Beaudette, 124 N.H. 579, 474 A.2d 1012 (1984) (follows Webster’s definition that a firearm uses gunpowder and finds pellet gun is nota firearm); State v. Mieles, 199 N.J. Super. 29, 488 A.2d 235 (1985) (statutory definition includes pellet gun); Rafferty v. State, 29 Wis. 2d 470, 138 N.W.2d 741 (1966) (follows Black’s definition and finds pellet gun is not a firearm).
We have found only one other jurisdiction which includes the word “gas” in its definition. In Coleman v. State, 506 P.2d 558, (Okla. Crim. 1972), the court noted that the statutory definition of “firearm” in Oklahoma is “an instrument capable of discharging a projectile composed of any material which may be reasonably expected to cause lethal injury and using either gunpowder, gas or any means of rocket propulsion . . . .” (Emphasis added.) This definition was applied for purposes of a concealed weapons charge in Thompson v. State, 488 P.2d 944 (Okla. Crim. 1971), in determining whether an air pistol is a “firearm.” The court found it was not a firearm because it could not be “reasonably expected to cause death” and because “an air compression gun does not operate by force of a chemical explosion, using gunpowder, gas or any means of rocket propulsion. Thus, an air compression gun does not imitate the explosive nature of a firearm.”
To the contrary, in the instant case an expert testified that the sudden release of compressed air is an explosion, and although the release of compressed air is a different type of explosion than one created by gunpowder, the principle is the same. He also testified a pellet gun could cause injury to a human being.
It is clear that pellet guns are not toys. It is the opinion of this court that the legislature intended to deter criminals from using dangerous air pellet guns as well as guns powered by the explosion of gunpowder. The legislature sought to curb not only death caused by the use of firearms, but also injury to persons.
The validity of State v. Johnson, 8 Kan. App. 2d 368, concerning the BB gun there described is a question we leave open.
We find the pellet gun described in this case fits within our definition of a “firearm” because it is capable of and was designed to “propel a projectile by force of . . . gas . . . .” It follows the trial court did not err by imposing sentence under K.S.A. 21-4618.
The sentence imposed by the trial court is affirmed. | [
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Two original proceedings in discipline filed by Arno W. Windscheffel, Disciplinary Administrator, against Douglas A. Price, of Humboldt, an attorney formerly admitted to the practice of law in Kansas, have been consolidated for purposes of this opinion. Respondent was indefinitely suspended from the practice of law in a previous disciplinary proceeding and remains suspended at this time. In re Price, 237 Kan. 624, 701 P.2d 1337 (1985). The present cases will be discussed separately.
No. 58,143
This complaint included numerous allegations of neglect and misconduct by respondent in his capacity as County Attorney of Allen County, and in the handling of his private practice. The Kansas Board for Discipline of Attorneys filed a comprehensive report along with its recommendation that respondent be disciplined by indefinite suspension. The facts as supported by the evidence before the Board are lengthy and will be greatly abbreviated herein.
As County Attorney of Allen County, respondent was primarily responsible for the prosecution of a sixteen-count criminal indictment against Nathaniel J. “Yorkie” Smith. Throughout the preparation, discovery proceedings and trial of the case, respondent repeatedly failed to abide by discovery orders issued by the court, made repeated misrepresentations to the judge and defense counsel and failed to furnish statements of witnesses and other evidence to defense counsel even though under a court order to do so. During trial these matters came to light, requiring the court to declare numerous recesses and delaying the proceedings. Respondent granted immunity to a witness, Roger Smith, brother of the defendant, and failed to advise the court or reduce the agreement to writing as required by the court.
Respondent, in his capacity as County Attorney, represented the State’s interest as appellee in the appeal by James R. Dodge from a conviction of forgery. Respondent failed to file a brief and on the day before oral argument was scheduled in the Court of Appeals, called defense counsel and offered to confess error, resulting in a reversal and an order for new trial. The defendant was placed on diversion and not tried a second time.
In the case of State v. Jones, respondent failed to file an appellate brief for the State even after obtaining two orders extending the time for filing. Both of his motions seeking additional time were filed out of time.
The Board found that the respondent “repeatedly and consistently failed to promptly prepare and file [journal entries in various criminal actions] as required by the duties of his office and as directed by the trial court .... through the years 1981, 1982, 1983 and 1984.” On one occasion respondent failed to issue a bench warrant after being ordered to do so by the trial court.
In his private practice, respondent failed to properly represent a client who was a defendant in an action for damages and allowed a default judgment to be taken against her. In a probate proceeding for the appointment of an administrator, respondent failed to appear and ultimately had to be replaced by other counsel. Other findings of neglect are included in the Board’s report.
The Board concluded that respondent had repeatedly neglected legal matters entrusted to him and had engaged in conduct involving dishonesty and deceit and conduct prejudicial to the administration of justice.
No. 58,515
In this complaint respondent was found to have appeared on October 31, 1984, as prosecutor in traffic court wearing a World War II German officer’s uniform with Nazi insignia thereon. The Board found such conduct to be prejudicial to the administration of justice.
In both of the foregoing proceedings, the respondent failed to cooperate with or appear before the panel of the Board. In both instances he failed to appear before this court although notifica tion was sent by the Clerk of the Appellate Courts pursuant to Supreme Court Rule 212 (235 Kan. cxxix).
The court, being cognizant of the fact respondent is already suspended from the practice of law, and having carefully considered the records in both of the foregoing cases, finds that the conduct of the respondent violates numerous disciplinary rules and would also warrant indefinite suspension. The costs herein are assessed to the respondent. | [
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The opinion of the court was delivered by
Prager, J.:
This case involves consolidated direct appeals by the State in two criminal cases taken pursuant to K.S.A.'22-3602. Each case raises an identical question of law pertaining to the authority of a district court to order jail time credit on a defendant’s sentence under authority of K.S.A. 21-4614 for the time a defendant resided under court order in a community corrections residential center. In case No. 57,683, the defendant, Robert Fowler, filed a cross-appeal based upon the refusal of the district court to award him jail credit on his sentence for time spent in the county jail pursuant to a work release program and also because he was denied representation by counsel at a hearing on a motion to remove that defendant from the community corrections program and to transfer him to the custody of the Secretary of Corrections.
The issue on appeal presented by the State may be stated as follows: Whether K.S.A. 21-4614 authorizes or requires jail time credit to be awarded to a defendant for the time that defendant resided in the Sedgwick County community corrections facility? On this issue, the facts are essentially undisputed and may be summarized in each of the cases as follows:
Robert Fowler Case No. 83 CR 65 (57,683)
Defendant, Robert Fowler, was convicted of giving a worthless check in violation of K.S.A. 21-3707, a class E felony. On October 19, 1983, defendant was given a minimum sentence of one to two years. Defendant was sentenced to the custody of the Secretary of Corrections for a period of one to two years but was granted probation and placed under a work release program from the Sedgwick County jail. Defendant was confined in the county jail except for periods he was released to engage in gainful employment. Thereafter, the defendant was arrested under a warrant for bringing contraband into the jail.
On December 13, 1983, a hearing was held at which time Fowler and counsel admitted the facts of the violation of probation and his probation was revoked. The matter was then continued to allow time for officials of the community corrections program to decide whether or not they would accept the de fendant in their program. On December 16, 1983, the district court ordered defendant’s placement in the community corrections program, stating for the record as follows:
“THE COURT: On the 13th of December, 1983, his probation was revoked and Mr. Fowler was committed to the custody of the Secretary of Corrections and the Sheriff will be deemed to have complied with the order of the Court by delivering or allowing custody of Mr. Fowler to be transferred to the Administrator of the Community Corrections of Sedgwick County. The future custody of Mr. Fowler is to be determined administratively between Community Corrections and the Administrator of the Community Corrections’ Program.”
The district court, in its journal entry, placed specific terms and conditions upon the defendant while under such “commitment”:
“It is therefore the order and judgment of the Court that the defendant be committed to the supervision of the Sedgwick County Community Corrections Program upon the following terms and conditions:
“a) That the defendant not violate the law in any manner;
“b) That the defendant be detained in a residential facility as designated by the Director of the Sedgwick County Community Corrections Program for such time and on such occasions as determined by the Director to meet the needs of the defendant and the program.
“c) That the defendant abide by all the rules, regulations and requirements of the Sedgwick County Community Corrections Program.
“d) That the defendant successfully complete the Sedgwick County Community Corrections Program.
[Conditions relating to the payment of costs and restitution omitted.]
“The defendant is advised that his failure to participate in or abide by the rules and regulations of the Community Corrections program will be cause for the director to transfer him to some other facility of the Secretary of Corrections as the Secretary shall direct.”
On September 21, 1984, a warrant was issued for Fowler’s arrest based upon sworn allegations of an officer of the community corrections program alleging violations of the terms and conditions of his placement at that facility. A hearing was begun on October 17, 1984, at which time defendant appeared without counsel. The court took the position that the defendant was not entitled to be represented by counsel because the hearing was not a probation revocation hearing. The court stated that defendant, never having been placed on probation, was at all times in the custody of the Secretary of Corrections while at the community corrections facility. The State took issue with this position, stating that this was a probation revocation hearing at which defendant was entitled to counsel. At the prosecutor’s request, the hearing was continued.
On October 24, 1984, the parties again appeared with defendant represented by counsel. Counsel for the defendant maintained that the hearing was based upon a claimed probation violation. The court again strongly denied this, stating that no probation had ever been granted in the case and that Fowler had been committed to the care, custody, and control of the Sedgwick County Community Corrections Department. Since the defendant had been committed to custody, he was not entitled to a prpbation revocation hearing.
The court, however, did grant another continuance and ordered a new hearing which was held on November 9, 1984, at which time the State’s only witness again testified and was fully cross-examined by defense counsel. The defendant presented no evidence on his behalf. After this hearing, the court found that the defendant had violated the terms of his contract with the Sedgwick County Community Corrections Center and ordered that defendant be transported by the sheriff to the custody of the Secretary of Corrections. At this hearing, there was much discussion as to whether defendant Fowler was entitled to jail time credit for time he spent living at the community corrections facility and also for time while on work release from the county jail before he was placed under the community corrections program. The district court granted defendant 141 days of jail time credit for the time he spent in the county community corrections facility and also 94 days jail credit for the time defendant spent in jail awaiting sentencing. The trial court refused to award Fowler jail time credit of 51 days for the time he spent in the county jail under the work release program while on probation. The State then filed a motion to deny defendant the jail credit for the time spent in the community corrections facility, which the trial court overruled. The State then filed a notice of appeal from that order. The defendant, Fowler, filed a cross-appeal claiming error in denial of his right to counsel at defendant’s October 17, 1984, hearing and because of the court’s refusal to grant jail credit for the time he spent in the county jail pursuant to the work release program while on probation.
Kermit Edwards Cases No. 84 CR 207 & 489 (57,737)
In case No. 84 CR 207, defendant, Kermit Edwards, on August 27, 1984, pled guilty to two counts of burglary (K.S.A. 21-3715) and was sentenced to the custody of the Secretary of Corrections to a controlling term of three to ten years. Judge Sanborn, as the sentencing judge, then ordered that the commitment to the Secretary of Corrections be stayed, and that defendant be “committed to the care, custody and control of the Sedgwick County Community Corrections Department.” The court placed certain conditions upon the “commitment,” including that the stay was to remain in effect so long as, “in the judgment of Community Corrections,” the defendant substantially complied with the rules and regulations of such agency.
On August 29, 1984, defendant Edwards in case 84 CR 489 pled guilty to the crime of misdemeanor battery (K.S.A. 21-3412 and was subsequently sentenced to a jail term of one year. The execution of defendant’s commitment to the Sedgwick County jail was stayed so long as the defendant abided by the rules and regulations of the Sedgwick County community corrections program.
On December 7,1984, Judge Sanborn issued a warrant in both cases for defendant’s arrest based upon a sworn allegation that he had been absent without leave from the residential center for a period of six hours. On December 10, 1984, the warrant was amended to allege that defendant returned to the community corrections residential facility with marijuana in his possession.
On December 21, 1984, a hearing was held on these arrest warrants at which time defendant appeared in person and with counsel. After hearing evidence and arguments, the court ordered that the stay of execution previously granted in each case be dissolved. The court ordered in the felony case that Edwards serve the sentence previously imposed and that the sheriff transport him to the custody of the Secretary of Corrections. The concurrent misdemeanor sentence would also be served while defendant was in prison. The court, over the State’s objection, awarded defendant jail credit for 85 days he spent while he was residing at the Sedgwick County Community Corrections Center. At this hearing, Judge Sanborn stated categorically that Edwards had never been placed on probation. He had been serving his sentence and was entitled to credit by law for the time he spent at the community corrections center. Judge San-born emphasized the fact that, as district judge in the case, he had the authority to impose sentence, to commit the defendant to the custody of the Secretary of Corrections, and then to stay the commitment and require that defendant be committed to community corrections without being placed on probation. The court, as in the Fowler case, stated that the hearing was not one for the revocation of probation but simply a determination that defendant’s custody be transferred from the community corrections program to the Secretary of Corrections.
The State appealed from the order of the district court in both cases granting each defendant jail time credit for the time he was residing at the Sedgwick County community corrections facility.
The issue raised by the State on appeal in both cases is whether K.S.A. 21-4614 authorizes or requires jail time credit be awarded to each defendant for the time the defendant resided at the community corrections center. This issue has not heretofore been addressed by this court. The question is of great statewide interest and importance, primarily because of a great deal of confusion and disagreement which has arisen after the enactment of the community corrections act, K.S.A. 75-5290 et seq., by the Kansas legislature in 1978. The specific statute which is before the court for interpretation is K.S.A. 21-4614, which provides as follows:
“21-4614. Deduction of time spent in confinement. In any criminal action in which the defendant is convicted upon a plea of guilty or trial by court or jury or upon completion of an appeal, the judge, if he or she sentences the defendant to confinement, shall direct that for the purpose of computing defendant’s sentence and his or her parole eligibility and conditional release dates thereunder, that such sentence is to be computed from a date, to be specifically designated by the court in the sentencing order of the journal entry of judgment or the judgment form, whichever is delivered with the defendant to the correctional institution, such date shall be established to reflect and shall be computed as an allowance for the time which the defendant has spent incarcerated pending the disposition of the defendant’s case. In recording the commencing date of such sentence the date as specifically set forth by the court shall be used as the date of sentence and all good time allowances as are authorized by the Kansas adult authority are to be allowed on such sentence from such date as though the defendant were actually incarcerated in any of the institutions of the state correctional system. Such jail time credit is not to be considered to reduce the minimum or maximum terms of confinement as are authorized by law for the offense of which the defendant has been convicted.” (Emphasis supplied.)
It should be noted that K.S.A. 21-4614 provides that, following conviction of the defendant, the judge, in sentencing the defendant to confinement, shall establish a date in the journal entry of judgment or judgment form to reflect and to be computed as an allowance for the time which the defendant has spent incarcerated pending the disposition of the defendant’s case. The date set by the court is to be used by the Secretary of Corrections as the date of sentence as though the defendant had been actually incarcerated in an institution of the state correctional system.
Simply stated, the State maintains that the jail time credit provided for in K.S.A. 21-4614 covers only the period during which a defendant has been confined from his arrest on the charge until the time the case is disposed of by the court by one of the methods authorized under K.S.A. 1984 Supp. 21-4603. The State argues that a defendant is not entitled to jail time credit for time spent, following his release on probation, where one of the conditions of probation is a period of confinement in a county jail or in a community corrections residential center. The defendant in each case maintains, in substance, that he is entitled to jail credit on his sentence for the time when he was “confined” to the custody of community corrections because during that period he was actually serving a part of his sentence. The issue presented is obviously quite complex and can be resolved only by a determination of the legislative intent following a full examination of all pertinent statutes on the subject.
At the outset, we must consider the alternative dispositions which a district court may adjudge after a defendant has been convicted of a crime. K.S.A. 1984 Supp. 21-4603(2) provides as follows:
“Whenever any person has been found guilty of a crime, the court may adjudge any of the following:
“(a) Commit the defendant to the custody of the secretary of corrections or, if confinement is for a term less than one year, to jail for the term provided by law;
“(b) impose the fine applicable to the offense;
“(c) release the defendant on probation subject to such conditions as the court may deem appropriate, including orders requiring full or partial restitution;
“(d) suspend the imposition of the sentence subject to such conditions as the court may deem appropriate, including orders requiring full or partial restitution; or
“(e) impose any appropriate combination of (a), (b), (c) and (d).
“In imposing a fine the court may authorize the payment thereof in installments. In releasing a defendant on probation the court shall direct that the defendant be under the supervision of a court services officer.
“The court in committing a defendant to the custody of the secretary of corrections shall fix a maximum term of confinement within the limits provided by law. In those cases where the law does not fix a maximum term of confinement for the crime for which the defendant was convicted, the court shall fix the maximum term of such confinement. In all cases where the defendant is committed to the custody of the secretary of corrections, the court shall fix the minimum term within the limits provided by law.”
Section (2)(a) authorizes a district court to commit the defendant to the custody of the Secretary of Corrections or, if confinement is for a term less than one year, to jail for the term as provided by law. Various felonies under the Kansas Criminal Code are classified in K.S.A. 1984 Supp. 21-4501 as Class A through Class E, depending upon the seriousness of the offense. The minimum sentence which may be imposed for a Class E felony requires a minimum sentence of not less than one year. Sentences of less than one year usually involve various classes of misdemeanors. Thus, in cases where a person has been convicted of a felony, K.S.A. 1984 Supp. 21-4603(2)(a) requires that he be committed to the custody of the Secretary of Corrections. The Secretary of Corrections is given the power to designate the place of confinement. There is no statutory authority for a district court in a felony case to commit the defendant to the custody of a community corrections center. In addition to commitment, a district court may impose a fine under § (2)(b), or under § (2)(c) release the defendant on probation subject to conditions. A district court under § (2)(d) may suspend the imposition of sentence subject to such conditions as the court may deem appropriate. Under § (2)(e), the court may impose any appropriate combination of (a), (b), (c), or (d). If the trial court actually imposes a sentence of commitment and desires to place the defendant in a community corrections residential center, it may do so only by placing the defendant on probation and making confinement in the community corrections residential center a condition of his probation.
This conclusion is also supported when we consider the statutory definitions of “suspension of sentence” and “probation” contained in K.S.A. 1984 Supp. 21-4602. “Suspension of sentence” is a procedure under which a defendant, found guilty of a crime, is released by the court without imposition of sentence. “Probation” is a procedure under which a defendant, found guilty of a crime, is released by the court after imposition of sentence without imprisonment subject to conditions imposed by the court and subject to the supervision of the probation service of the state, county, or court.
This conclusion is further supported by the language used in K.S.A. 21-4609, which provides for the custody of persons sentenced to confinement as follows:
“21-4609. Custody of persons sentenced to confinement; notice of modification of sentence. When a person is sentenced to imprisonment upon conviction of a felony, the judgment of the court shall order that such person be committed, for such term or terms as the court may direct, to the custody of the secretary of corrections. When such person is sentenced to the custody of the secretary of corrections and such sentence is subsequently modified in any respect, including discharge of such defendant from custody, by a court of this state having jurisdiction of such matter, such court shall thereupon notify the secretary of corrections of the nature of such modification.
“The secretary of corrections may designate as the place of confinement any available and suitable correctional institution or facility maintained by the state of Kansas or a political subdivision thereof.
“Any person serving a sentence of imprisonment may be transferred from one institution to another by order of the secretary of corrections.” (Emphasis supplied.)
That statute states clearly that when a person is sentenced to imprisonment upon conviction of a felony such person shall be committed to the custody of the Secretary of Corrections. It is up to the Secretary of Corrections to designate the place of confinement, including any state correctional institutions or facilities maintained by the state or a political subdivision thereof. There is no provision under Chapter 21, Article 46, which covers sentencing, which authorizes a district court to commit a defendant to the custody of community corrections. On the contrary, community corrections is mentioned only under K.S.A. 1984 Supp. 21-4610 (3)(i) and (1), which provides that the sentencing court may impose any condition of probation or suspension of sentence which it deems proper, including that the defendant (i) reside in a residential center located in the community, or (1) be supervised under a local community corrections service program operated under the community corrections act. Subsection (1) was added in 1984 after sentence was imposed in this case.
After a defendant has been committed to the custody of the Secretary of Corrections, the secretary is given broad discretion in selecting the place of actual custody. The powers of the Secretary of Corrections are set forth generally in K.S.A. 75-5201 et seq. K.S.A. 75-5206 provides that the secretary shall have authority to order the housing and confinement of any person sentenced to his or her custody to any institution or facility placed under the secretary’s supervision and management or to any contract facility. K.S.A. 75-5209 authorizes the Secretary of Corrections to arrange for the transfer of any inmate for observation and diagnosis or treatment at any other state institution. That section provides that while the inmate is in another institution his or her sentence shall continue to run. K.S.A. 75-5210(b) provides for the secretary to establish programs for work, education or training of inmates. K.S.A. 75-5210(i) permits the secretary ,to use regional or community institutions, local governmental or private facilities or halfway houses for the placement of inmates participating in work and educational release programs. K.S.A. 75-5267(d) provides that in areas where facilities, programs, and services suitable for work release programs are not available within the State corrections program, when needed, the secretary shall contract with political subdivisions and community corrections centers or facilities for quartering inmates and for programs and services.
These various statutes have been summarized to show the legislative scheme which permits a sentencing court to utilize a community corrections center through the process of placing the defendant on probation, but requires that confinement in the county corrections residential center be made a condition of probation. If a defendant is committed under a sentence, the commitment must be made to the custody of the Secretary of Corrections, who may then utilize community corrections facilities by contract in carrying out programs to rehabilitate a convicted felon.
It is thus clear that in the present pases the trial court had no authority to commit each of the defendants to the custody of the Secretary of Corrections and then order they reside in the Sedgwick County Community Corrections Residential Facility without placing them on probation.
The question to be determined is whether each of the defendants was entitled to jail time credit during the period each resided in the community corrections center. It is important to note the difference between “jail time credit” and “good time credit.” “Jail time credit” must be determined by the sentencing court and included in the journal entry at the time the trial court sentences the defendant to confinement. This requirement is found in K.S.A. 21-4614, which is set forth in full earlier in the opinion. K.S.A. 21-4620 requires that the journal entry or judg ment form contain a statement of the effective date of the sentence indicating whether it is the date of imposition or some date earlier “to give credit for time confined pending disposition of the case pursuant to K.S.A. 21-4614.”
“Good time credit” is provided for in K.S.A. 1984 Supp. 22-3717(a) so that an inmate shall be eligible for parole after serving the entire minimum sentence imposed by the court, less good time credits. Section (m) defines “good time credits” to mean one day for every three days served and one month for every year served, awarded on an earned basis pursuant to rules and regulations adopted by the Secretary of Corrections. Section (n) provides additional “meritorious good time credits” in addition to regular “good time credits.” The department of corrections has adopted regulations covering the subject of “good time credits.” See K.A.R. 44-6-101 et seq. K.A.R. 44-6-117 contains a table giving the allocation of good time credits.
In Kansas, the right to jail time credit is statutory. State v. Babcock, 226 Kan. 356, 358, 597 P.2d 1117 (1979). Jail time credit varies widely among the various states, depending upon the language of that particular state’s statutes. See, for example, the annotation on the subject in 24 A.L.R. 4th 789, containing cases dealing with a defendant’s right to credit for time spent in a halfway house or other rehabilitation center or any other restrictive imprisonment as a condition of probation. See also the annotation in 28 A.L.R. 4th 1265 on the subjection of computation of incarceration time under work release or “hardship” sentences.
Prior to the enactment of the Kansas Code of Criminal Procedure in 1970, the Kansas cases held that a defendant, who was confined in a county jail for a period of time as a condition of probation, was not entitled to credit for the time served, in the event his probation was later revoked and he was committed to the custody of a state correctional institution. In In re McClane, 129 Kan. 739, 284 Pac. 365 (1930), the defendant was convicted of attempted rape and was paroled (probated) by the district court from a jail sentence on condition that he serve six months in the Neosho County jail. The defendant later violated the terms of his parole and it was revoked. The defendant contended that he was entitled to six months’ credit for the time served in the county jail under his probation agreement. This court held that, where a defendant requests a parole after sentence and accepts the conditions thereof imposed by the trial court, he cannot, after violation thereof, be heard to complain of its conditions or have the time counted on that of the original sentence. McClane is cited with approval in Bowers v. Wilson, 143 Kan. 732, 737, 56 P.2d 1212 (1936).
The Kansas Code of Criminal Procedure, adopted in 1970 and as amended, contains specific statutes which allow jail time credit on a sentence where the defendant was confined under a variety of circumstances. K.S.A. 21-4614 requires that credit be given for all times spent in jail for the time which the defendant has spent incarcerated “pending the disposition of the defendant’s case.” This section has been construed to require credit for all time spent in jail from the time of arrest to the imposition of sentence. State v. Snook, 1 Kan. App. 2d 607, 571 P.2d 78 (1977). K.S.A. 1984 Supp. 22-3716 provides that tíre court may count toward completion of the terms of probation any time between the issuing of a warrant for probation violation and the arrest. K.S.A. 1984 Supp. 22-3716(3) provides that a defendant who is under suspension of sentence and for whose return a warrant has been issued by the court shall be considered a fugitive from justice if it is found that the warrant cannot be served. If it appears that the defendant has violated the provisions of his release, the court shall determine whether the time from the issuing of the warrant to the date of the defendant’s arrest, or any part' of it, shall be counted as time served on probation or suspended sentence.
In State v. Thorn, 1 Kan. App. 2d 460, 570 P.2d 1100 (1977), it was held that when a defendant has spent time in jail solely awaiting disposition of revocation of probation proceedings, he is entitled to an allowance of time on his sentence as provided by K.S.A. 21-4614. Under K.S.A. 22-3722, where a defendant has been committed to the custody of the Secretary of Corrections, the period served on parole or conditional release shall be deemed service of the term of confinement. Hence, an inmate is entitled to credit on his sentence for the period the secretary placed him on parole or conditional release. K.S.A. 1984 Supp. 21-4608(6)(d) provides that when indeterminate sentences are imposed to be served consecutively to sentences previously imposed in any other court, the inmate shall be given credit on the aggregate sentence for time spent incarcerated on the previous sentences, for the purpose of determining the date sentence begins and the parole eligibility, conditional release and net maximum dates.
K.S.A. 22-3430 permits a trial court to commit a defendant, after conviction, to a state or county institution when he is in need of psychiatric care and treatment, in lieu of confinement or imprisonment. K.S.A. 22-3431 provides that time spent in the county or state institution under K.S.A. 22-3430 shall be credited against any sentence, confinement or imprisonment imposed on the defendant. K.S.A. 22-3504 declares that the court may correct an illegal sentence at any time and that the defendant shall receive full credit for the time spent in custody prior to correction of sentence.
These various statutes are cited to show that, throughout the Criminal Code, the legislature, in its discretion, has provided for jail time credit on a sentence where the defendant has spent time in confinement under certain specific circumstances. There is no statute which provides that a defendant shall have credit for time spent in confinement as a condition of probation required by the trial court. In State v. Snook, 1 Kan. App. 2d 607, it was held that when probation is revoked, neither the applicable statutes nor the Constitution requires that the defendant be given credit on his sentence for time spent on probation.
State v. Babcock, 226 Kan. 356, holds that when probation is revoked, a trial court may not give credit on a defendant’s sentence for time spent in a halfway house fulfilling a condition of probation. The opinion in Babcock implies that if a defendant has been placed on probation he is entitled to jail time credit for any time spent in the actual or constructive control of jail or prison officials. We have concluded, however, that under K.S.A. 21-4614, a defendant is not entitled to credit for the time he is confined in a jail or in a community corrections residential facility imposed as a condition of probation. K.S.A. 21-4614 is applicable only to the period from the time the defendant is arrested on criminal charges to the time his case is disposed of by the trial court under one of the alternatives set forth in K.S.A. 1984 Supp. 21-4603(2). We, therefore, hold that K.S.A. 21-4614 does not authorize or require jail time credit to be awarded to a defendant during the period of time the defendant resides at a community corrections facility on order of the trial court as a condition of suspension of sentence or as a condition of probation. Thus, in the present cases, if each defendant had been placed on probation and required as a condition of probation to reside at the Sedgwick County Community Corrections Center, neither of them would be entitled to jail time credit on their respective sentences.
A difficulty in each case arises, however, because the district court, without authority and contrary to K.S.A. 1984 Supp. 21-4603(2), imposed sentence and committed the defendant to the custody of the Secretary of Corrections and then ordered that he be committed to the custody of the Sedgwick County Community Corrections Center without making that confinement a condition of probation. We have concluded that each defendant is entitled to jail time credit for the time he was improperly committed to the community corrections facility, on the basis that he was, in effect, awaiting a proper disposition of his case. This determines the issue raised in the appeal brought by the State.
We will now consider the cross-appeal of the defendant, Fowler. Defendant Fowler first maintains that the district court erred in refusing to allow him jail time credit, under K.S.A. 21-4614, for time spent in the county jail in a work release program imposed as a condition of probation. Defendant Fowler entered a plea of guilty to giving a worthless check (K.S.A. 21-3707). On October 19, 1983, the trial court sentenced Fowler to the custody of the Secretary of Corrections for a minimum period of one year. The defendant made oral application to the court for probation from the confinement portion of his sentence. The court sustained the motion and granted probation on the condition, among others, that defendant remain in custody of the Sedgwick County community work release program until the further order of the court. Thereafter, the defendant was placed on the work release program from the Sedgwick County jail. On December 13, 1983, a hearing was held at which time it was determined that Fowler had violated the terms of his probation and his probation was revoked. Fowler was committed to the custody of the Secretary of Corrections but it was ordered that he be committed to the supervision of the Sedgwick County community corrections program. He was advised in the journal entry that his failure to abide by the rules, terms, and regulations of the correction facility would be cause for the court to transfer him to some other facility of the Secretary of Corrections. It is clear from the record that the defendant was confined to the county jail under the work release program as a condition of his probation for a period of 51 days. It is this 51-day period for which defendant Fowler claims credit in his cross-appeal. In accordance with the conclusions set forth above, we hold that defendant Fowler was not entitled to jail time credit for time spent in the Sedgwick County jail where the work release program was a condition of his probation. Here, probation was actually granted to the defendant. His case was disposed of lawfully by the trial court under K.S.A. 1984 Supp. 21-4603(2). As we have interpreted K.S.A. 21-4614, he is not entitled to jail time credit for that period.
Defendant Fowler’s second point on his cross-appeal is that the revocation of his commitment to the community corrections department and his transfer to the custody of the Secretary of Corrections must be set aside, because he was not represented by counsel at the first hearing which was held on October 17, 1984. As noted heretofore in the opinion, the court stated on the record that it regarded the procedure as an administrative hearing at which the defendant was not entitled to be represented by counsel. The court stated that the sole issue to be determined was whether the defendant had violated any term or terms required by the community corrections system. However, the court recessed the hearing following the presentation of the State’s witness in order that defendant might obtain legal counsel. No decision was actually rendered on the original hearing on October 17, 1984. On October 24, 1984, defendant appeared in person and with his counsel. The matter was again continued to November 9,1984, when defendant appeared in person and with counsel. The court directed the State to present any evidence regarding the allegations. The sole witness for the State again testified and was fully cross-examained by defense counsel. The defendant chose to present no evidence. At the close of that hearing, the court found that the defendant had violated his agreement with the Sedgwick County Community Corrections Center and ordered that defendant be transported by the sheriff to the custody of the Secretary of Corrections.
We have considered the entire record and have concluded that the defendant was not prejudiced by not having his counsel present at the October 17 hearing. At the November 9 hearing, defendant was present and represented by counsel. The State presented the same evidence. The defendant chose not to present evidence. Under the circumstances, we hold that the lack of counsel for defendant at the first hearing, although error, constituted harmless error and that the order removing defendant from the Sedgwick County community corrections program and his transfer to the custody of the Secretary of Corrections should not be set aside.
For the reasons set forth above, it is the judgment of this court that the judgment of the district court granting the defendant Fowler and the defendant Edwards jail time credit for the period of time they were confined in the custody of the Sedgwick County Community Corrections Center is affirmed. It is further the judgment of this court that the judgment of the district court denying to defendant Robert Fowler jail time credit for the time he spent in the Sedgwick County jail under a work release program as a condition of his probation is affirmed.
The judgment of the district court determining that defendant Fowler had violated the conditions of his contract with the Sedgwick County Community Corrections Center and transferring him to the custody of the Secretary of Corrections is affirmed. | [
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The opinion of the court was delivered by
Holmes, J.:
Jayne Werner, plaintiff in the district court, appeals from an order of summary judgment in favor of defendants, Vernon Kliewer, M.D. and Prairie View, Inc., in her action for damages based upon invasion of privacy and breach of contract.
Pursuant to Supreme Court Rule 3.05 (235 Kan. lxiv) the parties have submitted a prepared statement of facts and issues in the district court in lieu of a record on appeal. The agreed statement provides:
“STATEMENT OF FACTS
“Plaintiff s petition in district court sought damages for invasion of privacy or, alternatively, breach of contract. Her claim was based on the action of defendant Vernon Kliewer, M.D., who disclosed medical information about her without her consent. Prairie View, Inc. was named co-defendant as Dr. Kliewer’s employer. The defendants then filed a third-party petition against Roger Werner, plaintiffs ex-husband, seeking indemnity in the event plaintiff obtained judgment against them.
“The essential facts for consideration on appeal are as determined by the district court in ruling on defendants’ motions for summary judgment.
“In January, 1981, while hospitalized for exhaustion and depression, plaintiff took an overdose of aspirin. Three days after release from this hospitalization, plaintiff took an overdose of 18 antidepressant pills in a suicide attempt.
“In mid-November, 1982, plaintiff was having suicidal feelings. On more than one occasion, she told her husband she was going to commit suicide. On the morning of November 18, 1982, plaintiff took a butcher knife with her in the car and drove toward Lake Kanopolis with the idea of committing suicide.
“Plaintiff voluntarily admitted herself as a patient at Prairie View, Inc. on November 18, 1982. At the time of admission, she was having suicidal thoughts.
“Plaintiff went to Prairie View because she felt they were qualified to help her. Dr. Vernon Kliewer was the physician responsible for examination, diagnosis and treatment of plaintiff. She discussed her suicidal thoughts with Dr. Kliewer and told him of her history of suicide attempts.
“At the time she entered Prairie View, plaintiff was involved in a divorce proceeding in Saline County District Court, before Judge Morris Hoobler. The well-being of her minor children was at issue.
“In November, 1982, plaintiff was having trouble with such things as getting her children ready for school. During this time, plaintiffs children were frightened because of her behavior. Before going to Prairie View, plaintiff did not think about telling anyone where she was going, and did not make arrangements for her children to be taken care of. When plaintiff entered Prairie View, she had no feeling or concern for her family. She first became concerned about her children after she had been at Prairie View for two or three days.
“Prairie View’s staff was concerned about plaintiff s welfare and told her she needed further care. Dr. Kliewer told plaintiff s husband that his impression was plaintiff needed further observation and evaluation.
“Plaintiff did not stay at Prairie View long enough to make much progress and, on November 24, 1982, left Prairie View against medical advice.
“Judge Hoobler was concerned about the welfare of plaintiff s children.
“At plaintiff s husband’s request, Dr. Kliewer wrote a letter ... to Judge Hoobler because he felt there should be a determination as to plaintiffs dangerousness. Although Dr. Kliewer did not accept plaintiff s husband’s statements literally as fact, he recognized their substance and the need for further investigation of their truth. He believed the statements to be important enough to require further observation and evaluation of the plaintiff.
“The only persons who saw Dr. Kliewer’s letter were the court services officer in whose care it was addressed; the judge; and attorneys for the parties.
“Plaintiff suffered no damage to her reputation. She believes Dr. Kliewer wrote the letter at her husband’s request. She believes her husband advised Dr. Kliewer of his concern for plaintiff s welfare.
“Plaintiff does not dispute the truth of any of the information contained in the second paragraph of Dr. Kliewer’s letter. Plaintiff believes that her husband made all of the comments which are set forth in paragraph three in speaking with Dr. Kliewer, and that Dr. Kliewer accurately reported the comments made to him by plaintiff s husband. Plaintiff admits that the statement in the letter that her children were frightened about her behavior is true. She believes all of the statements made by Dr. Kliewer. in paragraph four of the letter are true. Plaintiff believes that her husband made the statement referred to in paragraph five of the letter, which is attributed to the husband. Plaintiff agrees that the first full paragraph on page two of the letter sets forth nothing other than the doctor’s professional opinions. Plaintiff believes that her husband made all of the comments which are attributed to him in Dr. Kliewer’s letter. She admits there was no information in the letter that was not already known by her husband. She did not have any objection to the Prairie View staff discussing her care and condition with her husband.
“Plaintiff did not claim damage to her reputation as a result of the letter, nor dispute the truth of the statements in the letter, whether those statements are attributed to her former husband, or are Dr. Kliewer’s observations and opinions.
“Plaintiff s petition claimed damages for ‘intense mental and emotional anguish’ suffered as a result of the defendant’s action.
“STATEMENT OF ISSUES
“The legal issues before the trial court were:
A. Whether plaintiff has an actionable claim against the defendant for invasion of privacy.
B. Alternatively, whether plaintiff had a claim against the defendant for breach of contract, on the ground that a convenant not to disclose patient’s secrets is part of the contractual relationship between patient and physician.”
The letter of which Mrs. Werner complains states in its entirety:
“November 29, 1982
“The Honorable Morris V. Hoobler do John Burchill Court Service Officer Box 1746
Salina, Kansas 67401
“RE: Jayne Werner
“Dear Judge Hoobler:
“I am writing at the request of the husband of the above-named individual who is concerned about her as well as their children.
“Jayne Werner was admitted to Prairie View Hospital 11/18/82 when she came suddenly a day ahead of a planned initial appointment. She was extremely distraught, particularly with the prospect of finalizing a divorce from her husband. She claimed having not slept for several nights and having had sleep problems for several weeks. She also had not been eating well for some time. She was preoccupied with suicidal urges and told of being overwhelmed with the responsibility for the children. She wanted no contact with her family at that time.
“On November 23, in a phone call Mr. Werner alleged that Mrs. Werner had frightened the children with her behavior prior to her coming to the hospital here. She had kept her daughter with her through the night threatening suicide. He alleged also that in the period of a week to ten days prior to her coming here, she had in his hearing and the hearing of their minister threatened suicide as well as threatening death for herself and the children. He reported that she had a long history of fluctuating mood, manipulative behavior and strong self-will. “Over the next few days after coming to the hospital, Mrs. Werner fairly quickly became settled. However, on November 23 and 24 she became extremely demanding about being dismissed from the hospital stating that her children were very upset because she was here. Family members, however, were reporting that they were upset because of their experience with her. In the evening of November 24, Mrs. Werner left the hospital without authorization, alleging that she had made arrangements with her mother to finance her going to Indiana for continued treatment. She refused to return to the hospital here.
“In a phone conversation with Mr. Werner on November 29, he reported that Mrs. Werner was at home but was still fluctuating widely in her mood and attitude.
“I see this person as being oriented to time, place and person. I did not sense obvious delusion or hallucinations; however, there is obvious discrepancy between how she reports perceiving situations and how they are reported by others. Her affect fluctuated widely while here. She appeared very strongly self-willed and manipulative as well as impulsive. She can appear well organized and stable for brief periods of time.
“It is my opinion in view of the continued pattern of wide mood fluctuation, the impulsiveness and the strong self-will that she continues to represent significant risk of harm to herself. I also believe that the allegations about statements she is to have made regarding harm to her children should not be ignored. It would seem that continued hospital treatment should be implemented until she can demonstrate a longer term stability as an indication of reduction of dangerousness.
“Sincerely yours,
/s/ Vernon L. Kliewer, M.D.
Vernon L. Kliewer, M.D.
Psychiatrist
“VLK:pg”
After discovery was complete, and prior to trial, the trial court granted summary judgment to the defendants Kliewer and Prairie View on all issues and theories asserted by plaintiff. Plaintiff has appealed the trial court’s ruling on both her claim of invasion of privacy and her claim of breach of contract.
At the outset it should be noted that summary judgment is only proper where the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Peoples Nat’l Bank Trust v. Excel Corp., 236 Kan. 687, 695 P.2d 444 (1985). When summary judg ment is challenged on appeal, the appellate court must read the record in the light most favorable to the party who defended against the motion for summary judgment. Credit Union of Amer. v. Myers, 234 Kan. 773, 676 P.2d 99 (1984).
Appellant’s claim of an invasion of privacy is based upon three theories: First, an unreasonable intrusion upon her seclusion as defined in Restatement (Second) of Torts § 652B (1976); second, unreasonable publicity of her private life, Restatement (Second) of Torts § 652D; and third, an implied right to privacy under Kansas law, without regard to Restatement principles. While at common law there was no physician-patient privilege (Armstrong v. Street Railway Co., 93 Kan. 493, 502, 144 Pac. 847 [1914]), most states, including Kansas, have adopted such a privilege by statute. K.S.A. 60-427. The statute precludes physicians from disclosing confidential communications between them and their patients. Thus, the confidentiality of the physician-patient relationship is a matter of strong public policy in Kansas. However, the statutory privilege is subject to several exceptions. K.S.A. 60-427(d) provides:
“There is no privilege under this section in an action in which the condition of the patient is an element or factor of the claim or defense of the patient or of any party claiming through or under the patient or claiming as a beneficiary of the patient through a contract to which the patient is or was a party.”
In the Werner divorce proceeding pending before Judge Hoobler, the care and custody of the couple’s minor children were in issue. As Jayne Werner was seeking custody of the children in her divorce action, her fitness as a parent and ability to care for her children were issues to be determined by the court. Under such circumstances and to the extent that the otherwise privileged information is relevant to the issue of custody, she is deemed to have waived any statutory privilege under K.S.A. 60-427. Cf. In re Zappa, 6 Kan. App. 2d 633, 631 P.2d 1245 (1981).
Two of appellant’s arguments asserting an invasion of privacy are based upon the Restatement (Second) of Torts § 652A et seq. § 652A provides:
Ҥ 652A. General Principle
(1) One who invades the right of privacy of another is subject to liability for the resulting harm to the interests of the other.
(2) The right of privacy is invaded by
(a) unreasonable intrusion upon the seclusion of another, as stated in § 652B; or
(b) appropriation of the other’s name or likeness, as stated in § 652C; or
(c) unreasonable publicity given to the other’s private life, as stated in § 652D; oi-
id) publicity that unreasonably places the other in a false light before the public, as stated in § 652E.”
Obviously, § 652C and § 652E are not applicable to the present case. The analysis of the right of privacy contained in the Restatement (Second) of Torts § 652 was adopted in Kansas in Dotson v. McLaughlin, 216 Kan. 201, 531 P.2d 1 (1975).
Appellant relies upon § 652B for her first contention that Dr. Kliewer violated her right to privacy by an unreasonable intrusion upon her seclusion. § 652B provides:
Ҥ 652B. Intrusion upon Seclusion
One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.”
A cause of action based upon § 652B was specifically recognized by this court in Froelich v. Adair, 213 Kan. 357, 359, 516 P.2d 993 (1973). However, to prevail upon such a claim it is necessary to establish two factors: First, something in the nature of an intentional interference in the solitude or seclusion of a person’s physical being, or prying into his private affairs or concerns, and second, that the intrusion would be highly offensive to a reasonable person. Comment b. to § 652B of the Restatement reads:
“The invasion may be by physical intrusion into a place in which the plaintiff has secluded himself, as when the defendant forces his way into the plaintiff s room in a hotel or insists over the plaintiff s objection in entering his home. It may also be by the use of the defendant’s senses, with or without mechanical aids, to oversee or overhear the plaintiffs private affairs, as by looking into his upstairs windows with binoculars or tapping his telephone wires. It may be by some other form of investigation or examination into his private concerns, as by opening his private and personal mail, searching his safe or his wallet, examining his private bank account, or compelling him by a forged court order to permit an inspection of his personal documents. The intrusion itself makes the defendant subject to liability, even though there is no publication or other use of any kind of the photograph or information outlined.”
Does the conduct of Dr. Kliewer meet the necessary tests of § 652B? We think not. Generally, the tort of intrusion upon seclusion is based upon the manner in which an individual obtains information. Several cases are illustrative: installation of an electronic listening device in a tenant’s bedroom, Hamberger v. Eastman, 106 N.H. 107, 206 A.2d 239 (1964); taking pictures and peeking through windows with binoculars, Souder v. Pendleton Detectives, 88 So. 2d 716 (La. App. 1956); unauthorized prying into the plaintiff's bank account, Brex v. Smith, 104 N.J. Eq. 386, 146 A. 34 (1929). See also Prosser and Keeton on Torts § 117, 854-856 (5th ed. 1984). In addition, the intrusion must be highly offensive to a reasonable person. Here, there was no information in the letter written by Dr. Kliewer which would not have been obtainable through customary discovery procedures. Appellant does not deny the truth or accuracy of the contents of the letter and it is admitted that there is nothing in the letter which was not already known by her husband. The welfare and future custody of the minor children were at stake and although it would have been preferable to have followed standard court and discovery procedures, the information revealed, under the circumstances of this case, certainly does not rise to the level of being highly offensive to a reasonable person. Mrs. Werner had previously attempted suicide, had contemplated it the day she checked into the hospital, and had indicated that she might harm the children. While the disclosure of intimate facts and opinions about Mrs. Werner’s mental condition would ordinarily be highly objectionable, any such determination must be made in light of the totality of the circumstances. The letter was directed to a judge, who had the direct responsibility of determining the best interests of the minor children and to provide for their care and safety. Under all of the circumstances of this case, the disclosures made by Dr. Kliewer cannot be considered highly offensive to a reasonable person. The trial court was correct in ruling Mrs. Werner had failed to establish a cause of action based upon an intrusion upon her seclusion.
Next, appellant asserts her privacy was invaded under § 652D of the Restatement, which reads:
Ҥ 652D. Publicity Given to Private Life
One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that
(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public.”
This claim, also, lacks merit for several reasons. We have already determined that the contents of the letter could not be consid ered “highly offensive to a reasonable person” under the facts of this case. Although a cause of action under § 652D has been recognized in Kansas (Rawlins v. Hutchinson Publishing Co., 218 Kan. 295, 543 P.2d 988 [1975]; Munsell v. Ideal Food Stores, 208 Kan. 909, 494 P.2d 1063 [1972]), it is doubtful that these facts would support a finding that the letter was given the necessary publicity required to sustain this claim. Comment a. to § 652D distinguishes “publication” from “publicity” and states, “ ‘publicity’ . . . means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.” The comment continues, “it is not an invasion of the right of privacy ... to communicate a [private fact] to a single person or even to a small group of persons.” See Vogel, et al. v. W. T. Grant Company, Aplnt., 458 Pa. 124, 132, 327 A.2d 133 (1974), holding communication to four people as insufficient publicity. Cf. Beard v. Akzona, Inc., 517 F. Supp. 128, 132, 133 (E.D. Tenn. 1981); Brown v. Mullarkey, 632 S.W.2d 507, 509 (Mo. App. 1982). Here the only publicity was to the court services officer, the district judge handling the divorce action, and the attorneys for the parties, all being officers of the court.
Finally, under § 652D it must be shown that the contents of the letter were “not of legitimate concern to the public.” In her brief plaintiff concludes, “[r]evealing a patient’s confidences is obviously material that would be highly offensive to a reasonable person; there is no legitimate concern to the public.” While we agree most individuals would consider the disclosure of their psychiatric history offensive, it does not automatically follow that the public has no legitimate concern. K.S.A. 60-1610(a)(3) provides the trial court shall determine child custody in accordance with the best interests of the child. In recent years the legislature has demonstrated its concern for the welfare of children by enacting several provisions, including the Kansas Code for Care of Children, K.S.A. 1984 Supp. 38-1501 et seq.; the Child Custody Jurisdiction Act, K.S.A. 38-1301 et seq.; and the establishment of the Children and Youth Advisory Committee, K.S.A. 1984 Supp. 38-1401. Clearly, the welfare of children is a matter of public policy of great state concern and we have so held numerous times. In re Adoption of McMullen, 236 Kan. 348, 352, 691 P.2d 17 (1984); Sheppard v. Sheppard, 230 Kan. 146, 149, 630 P.2d 1121 (1981), cert. denied, 455 U.S. 919 (1982).
In the present case the plaintiff was diagnosed as suicidal, having unsuccessfully attempted suicide on several occasions. Beyond being suicidal, it appears that on at least one occasion she threatened to kill her children and then commit suicide. In short, the evidence supports Dr. Kliewer’s conclusion that the plaintiff represented a significant risk of harm to herself and possibly to her children. In view of the legitimate concern of the State for the welfare of children, the plaintiff s conclusion that no legitimate public interest exists lacks merit. No error is shown.
Lastly, in her claim based upon an invasion of privacy, appellant contends that a cause of action exists outside the scope of the Restatement § 652. Under the facts of this case we need not determine whether such a cause of action might exist under other circumstances. Appellant makes numerous arguments based upon the physician-patient privilege set forth in K.S.A. 60-427, the definition of unprofessional conduct in K.S.A. 65-2837(b)(6), and cases from other jurisdictions which are only partially on point. It is argued that Dr. Kliewer breached a confidential relationship between him and Mrs. Werner. Appellant appears to concede that if there existed a paramount public interest then the disclosure might have been proper but asserts there is no public interest involved except that of the confidentiality of the physician-patient relationship. As already pointed out, such a position totally ignores the overriding public policy involving the safety, care and welfare of minor children. See Annot., 10 A.L.R. 4th 576. We find no merit in appellant’s contentions that this case merits the adoption of a cause of action for invasion of privacy separate and distinct from those contained in § 652 of the Restatement.
As an alternative to her action for invasion of privacy, Mrs. Werner asserts that defendants are liable under a breach of contract theory. The trial court, relying upon Malone v. University of Kansas Medical Center, 220 Kan. 371, 552 P.2d 885 (1976), granted the defendants’ motion for summary judgment holding that the claim sounded in tort and not in contract. In her brief, appellant appears to contend that a breach of the confidentiality which exists between physician and patient constitutes a breach of an express warranty. Obviously, from the agreed statement of facts, no express warranty was involved. Although we have held that a physician may bind himself by an express warranty, the facts here merit no such finding. See Noel v. Proud, 189 Kan. 6, 367 P.2d 61 (1961). In Malone we stated:
“A breach of contract may be said to be a material failure of performance of a duty arising under or imposed by agreement. A tort, on the other hand, is a violation of a duty imposed by law, a wrong independent of contract. Torts can, of course, be committed by parties to a contract. The question to be determined here is whether the actions or omissions complained of constitute a violation of duties imposed by law, or of duties arising by virtue of the alleged express agreement between the parties.
“Physicians, as well ás hospitals, may enter into express contracts by which they bind themselves to warrant the success of treatment, or to otherwise obligate themselves above and beyond their ordinary duties. Such contracts may form the basis for breach of contract actions. Noel v. Proud, 189 Kan. 6, 367 P.2d 61, is illustrative.” 220 Kan. at 374.
The court quoted from Yeager v. Dunnavan, 26 Wash. 2d 559, 174 P.2d 755 (1946), to the effect that:
“ . . When an act complained of is a breach of specific terms of the contract, without any reference to the legal duties imposed by law upon the relationship created thereby, the action is in contract, but where there is a contract for services which places the parties in such a relation to each other that, in attempting to perform the promised service, a duty imposed by law as a result of the contractual relationship between the parties is violated through an act which incidentally prevents the performance of the contract, then the gravamen of the action is a breach of the legal duty, and not of the contract itself. . . .’ (p.562.)” pp. 375-76.
While we recognize that the public policy embodied in the physician-patient privilege and the physician’s duty to maintain the confidentiality of the relationship warrants great deference, it must be balanced against competing interests of the State, including its public policy relating to the care and protection of children. Under the facts of this case, where potential physical harm, not only to Mrs. Werner but also to her minor children, was involved, we have no hesitancy in holding that the disclosure by Dr. Kliewer to Judge Hoobler did not constitute such conduct as warrants liability on the part of the defendants on either an invasion of privacy or breach of contract theory. We do emphasize, however, that the better procedure would be to refrain from any such disclosure except under the auspices and direction of the trial court through discovery, a motion in limine, in-camera inspection, or such other protective procedure as may be appropriate.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Holmes, J.:
This is an appeal by the plaintiff in a case which arose from a one-car accident that occurred in the early morning hours of July 31, 1980, on Kansas Highway 25 (K-25) seven miles south of Lakin. William T. Rollins (plaintiff-appellant) was a passenger in the back seat of the vehicle, a 1979 Chevrolet Chevette. The accident occurred on a section of highway that was undergoing resurfacing by the Department of Transportation of the State of Kansas (KDOT).
Rollins brought suit against KDOT and the Board of County Commissioners of Kearny County, Kansas, alleging failure of KDOT to exercise due care in the design, construction and maintenance of K-25. The Board of County Commissioners was subsequently dismissed from the action. A Sedgwick County District Court jury found the driver of the car sixty-five percent at fault, the plaintiff thirty-five percent at fault, and found no fault on the part of KDOT. Rollins appeals, claiming several errors on the part of the trial court.
Between midnight and 1:00 a.m., on July 31, 1980, Lana Swisher, BaLynda Bell and appellant left Ulysses, Kansas, in Lana’s car, to travel to Lakin on K-25, a distance of approximately twenty-seven miles. Lana was driving. In the area south of Lakin, KDOT was resurfacing the highway for about four miles with bituminous asphalt. The resurfacing work caused the surface of the roadway to extend above the highway shoulders, resulting in a drop-off at the edge of the paved portion of the highway. There were no warning signs in place and no temporary striping of the center and edges of the highway. As the Swisher automobile traveled this portion of the highway, its right wheels dropped off the road surface, the driver lost control and the car crashed in the ditch. Appellant was thrown from the vehicle and received serious injuries resulting in his being paralyzed from the waist down. Additional facts will be set forth as necessary in considering the various points on appeal.
The first issue raised by the appellant is that the trial court erred in admitting testimony regarding the effect of the driver’s failure to use her seat belt on her ability to control the vehicle. Rollins’ objection to evidence of the driver’s failure to use a seat belt was overruled and the appellee’s accident reconstruction expert was allowed to testify as to the effect of nonuse of a seat belt on a driver’s ability to control his vehicle. It was his opinion Lana would not have lost control if she had been using her seat belt and that the accident would not have happened. In allowing the evidence, the judge stated he was only allowing it for the purposes of showing control of the vehicle and not to show negligence. We have consistently held that evidence of the nonuse of seat belts is inadmissible in a negligence action. In Hampton v. State Highway Commission, 209 Kan. 565, 498 P.2d 236 (1972), the defendant attempted to introduce evidence that the plaintiff was not using a seat belt to show negligence on behalf of plaintiff and a failure to mitigate damages. We held:
“A driver has no legal duty to use an available seat belt, and evidence of nonuse is inadmissible either on the issue of contributory negligence or in mitigation of damages.” Syl. ¶ 9.
Following the adoption of comparative negligence, the issue was before the Court of Appeals in Taplin v. Clark, 6 Kan. App. 2d 66, 626 P.2d 1198 (1981), wherein' the court stated:
“[U]nder the Kansas system of comparative negligence, it is not proper for a jury to consider as a negligence factor to reduce liability and damages the failure of a passenger to use an available seat belt.” p. 70.
The rule propounded in Hampton and Taplin was recently reconsidered and adhered to in Ratterree v. Bartlett,, 238 Kan. 11, 707 P.2d 1063 (1985). While the foregoing cases involved the plaintiff s failure to use a seat belt, the rule propounded is equally applicable when it is someone other than the plaintiff who is alleged to be at fault for failure to use the belts. KDOT’s position was clearly set forth in Instruction No. 9, wherein the court states the appellee’s contentions to be that the driver was negligent in failing to keep her vehicle under control. The attempt by the trial court to distinguish the driver’s “control” of the vehicle from negligence was confusing as well as erroneous. For there to be fault assessed in a negligence action there must be some duty which has been breached and as there is no duty to use seat belts in Kansas, there can be no fault attributed to a person for failure to use them.
In his instructions to the jury the trial judge stated:
“The law of Kansas does not permit you to consider the presence and use or non-use of seat belts in any manner in arriving at your decision.”
KDOT now asserts that, if the admission of the nonuse of seat belts by Lana was error, the foregoing instruction cured the error. We think not. It is clear that even with the giving of the instruction the trial court remained of the opinion the jury could consider the evidence on the issue of “control.” To allow KDOT’s expert to voice an opinion based upon the nonuse of the seat belt by the driver was, in our opinion, so prejudicial that it could not be cured by the instruction given and certainly cannot be considered harmless error.
Although the foregoing would ordinarily dispose of this case, as it must be remanded for a new trial, there are other issues raised some of which we deem advisable to consider.
KDOT admits that it fell within the scope of the Kansas tort claims act, K.S.A. 75-6101 et seq. K.S.A. 75-6103(a) provides:
“(a) Subject to the limitations of this act, each governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state.”
In Carpenter v. Johnson, 231 Kan. 783, 784, 649 P.2d 400 (1982), Chief Justice Schroeder, in writing for a unanimous court, stated:
“The Kansas Tort Claims Act, K.S.A. 1981 Supp. 75-6101 et seq., a so-called ‘open ended’ tort claims act, makes liability the rule and immunity the exception.”
K.S.A. 75-6104 sets forth numerous exceptions under which liability is precluded. There is no contention on appeal that any of the exceptions apply in this case. Appellant sought an instruction based upon K.S.A. 75-6103(a) and also sought to introduce evidence of the standards and duties which would be required by KDOT if the work were being done by a private contractor. It appears that during the daytime, while work was going on, various warning signs were erected to advise and protect the motorists using the highway. However, at night the State’s employees removed the signs and no warnings of the condition of the highway, shoulders or ditches were provided. Appellant contends that he could produce evidence that if a private person were doing the maintenance or repair, then warning signs and other safety precautions would be required at night, which were not provided by KDOT in doing its work upon the highway. KDOT in its brief argues it is not subject to the same standards of a private person doing the same work, and states:
“When plaintiff attempted to offer this evidence [KDOT’s specifications for private contractors], defendant objected on the ground that the specifications were not relevant because they apply only to private contractors and are not applicable to defendant. Because there was no evidence of a private contractor’s participation in the subject project, these specifications were irrelevant and wholly lacked probative value. . . .
“The plaintiffs arguments on this point illustrate his lack of understanding of the Kansas Tort Claims Act .... Plaintiff labors under the fallacy that pursuant to the KTCA, the ‘defendant at bar is to be judged by the same standards as would be applicable to a private person resurfacing the roadway.’ .... Plaintiff argues that these standards are relevant because‘. . . the jury . . . is entitled to consider what standards defendant requires of private contractors in assessing the negligence of defendant at bar.’ ... In other words, plaintiff argues that K.S.A. 75-6103 imposes upon governmental entities all duties applicable to private persons.
“K.S.A. 75-6103(a) does not have this effect. The statute is intended to make governmental entities liable for the negligent acts of their employees where the employees were acting within the scope of their employment. Thus, K.S.A. 75-6103(a) is properly viewed as an effort to codify the common law doctrine of respondeat superior. The much-quoted article, ‘Governmental Liability: The Kansas Tort Claims Act [or The King Can Do Wrong]’ by John A. Hageman and Lee A. Johnson, 19 W.L.J. 260 (1980), is instructive on this issue. In discussing K.S.A. 75-6103(a), the authors comment as follows:
The final condition of liability, ‘under circumstances where the governmental entity, if a private person, would be liable under the laws of this state,’ should be read in conjunction with the preceding phrase to effect a codification of the common law of respondeat superior. 19 W.L.J. 260, 266-7 (1980). The trial court properly ruled on this issue by sustaining defendant’s objection.”
We do not agree with appellee’s interpretation of the statute. In that same article, immediately following the statement quoted by the appellee, the authors state:
“That is, the governmental unit will be held liable for the negligent acts of its employees, if under the same facts a private employer would be held liable. It is clear from the conspicuous absence of reference to the ‘proprietary-government’ distinction, and from cases construing this phrase in the Federal Tort Claims Act that the test of liability is not whether the activity is done by the private sector.” Note, Governmental Liability: The Kansas Tort Claims Act [or The King Can Do Wrong], 19 Washburn L.J. 260, 267 (1980).
KDOT argues that construction and reconstruction are done by private contractors while mere maintenance is done by KDOT employees and that, although there are specific standards and duties required for construction, there are none for maintenance. The trial court found that the work being done upon the highway constituted maintenance and not construction or reconstruction. We agree with that conclusion. KDOT’s position is that as it does its own maintenance and no private contractors are involved, it is not subject to any standards or duties which might apply if the work were being done by a private contractor. The test is not whether the same or similar work is actually being done by a private person but what the standard would be if the work were to be done by a private person. We hold that in doing highway maintenance work, the duty under the tort claims act, absent any statutory exceptions, which KDOT owes the public is the same that would be required of a private individual or contractor doing the same work. If appellant had evidence of stricter standards and duties required by KDOT for similar work by a private person, which if breached could be found to be negligence, then he should have been allowed to present it. In addition, an instruction upon the duty required by the tort claims act under K.S.A. 7543103(a) is appropriate if the governmental activity is such that there would be specific duties required of a private person doing the same work other than to perform in a non-negligent manner. The instructions given herein were the standard ones used in negligence actions and would be adequate if due care is the only duty that would be required of a private contractor doing the same work. However, when higher, different, or particularized standards would be required if a private person were doing the same work, then the governmental employees are to be held to the same standards in determining liability under the tort claims act and an instruction covering such standards is appropriate. The fact that KDOT policy is to do all its own maintenance does not relieve it and its employees of the standards which would apply if a private person did the work under contract with KDOT.
Appellant next asserts error in the trial court’s ruling that evidence of an allegedly similar accident was inadmissible in evidence. Without going into detail, Rollins attempted to introduce evidence of an accident wherein a car ran off the same stretch of highway, at night, only nine days after the present accident. There, the driver had gone off the highway when he swerved to miss a jackrabbit, while in the present case, there is no clear explanation why the right wheels rah off the edge of the road. Evidence of other accidents may be admitted if the court finds that the accident has a sufficient similarity with the accident in the case before the court. Hampton v. State Highway Commission, 209 Kan. at 575. The admission of such evidence lies within the sound discretion of the trial court. State ex rel. Murray v. Palmgren, 231 Kan. 524, 538, 646 P.2d 1091 (1982). An abuse of discretion is said to exist only when no reasonable person would take the view adopted by the trial court. Reich v. Reich, 235 Kan. 339, 343, 680 P.2d 545 (1984). While there were numerous similarities in the two events, there were also dissimilar factors and we cannot say the court abused its discretion in excluding the evidence.
Another issue raised by appellant is that the trial court erred in not allowing his expert to testify that in his opinion the highway was not reasonably safe for travel. In Ratterree v. Rartlett, 238 Kan. 11, we reiterated the rule that opinion testimony which goes to the ultimate issue of negligence is improper as invading the province of the jury. Here the ultimate issue for the jury to determine was whether the road was reasonably safe for the traveling public and, if not, whether it was due to KDOT’s negligence. See Lollis v. Superior Sales Co., 224 Kan. 251, 580 P.2d 423 (1978). Again, we cannot say the trial court abused its discretion in denying the opinion testimony.
Appellant asserts numerous errors in the instructions given by the trial court and in its refusal to give certain instructions requested by appellant. Many of these involved the seat belt and duty owed to plaintiff issues, and we assume similar problems with the instructions on those issues will not arise in a retrial of this case. We do note, however, that the court’s instruction setting out the contentions of the parties should be limited to the claims of negligence supported by the evidence. The fact that an allegation of negligence is asserted in a pretrial pleading does not justify an instruction on that particular allegation if there is no evidence to support it.
The final issue which we deem advisable to address is the trial court’s admission into evidence of a 1980 version of the Kansas Driving Handbook. Lana was questioned by counsel for the appellee about her driving skills, when she obtained her driver’s license and whether she had taken and passed a driver’s education course. She had received a restricted license at the age of fourteen and an unrestricted license at sixteen, at least five years prior to this accident. At the time of preparing for her driver’s license test she had been furnished a driver’s handbook. She was also asked if she was familiar with the 1980 Kansas Driving Handbook and responded it was not the one furnished to her years earlier and she did not know what was in the 1980 version. We fail to see what relevance the admission of the 1980 driver’s handbook had to the issues in this case. The trial court appears to have been under the impression that as it contained some “law” it could be considered by the jury and that the jury was not limited to the court’s instructions on the law to be applied in this case. Considering the lack of foundation and relevance, the admission of the handbook was error.
We do not deem it necessary to address the other issues raised by the appellant as they are not likely to arise again on retrial.
The judgment is reversed and the case remanded for a new trial. | [
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The opinion of the court was delivered by
Schroeder, C.J.:
Mark L. Holley (defendant-appellant) appeals from his conviction of aggravated robbery (K.S.A. 21-3427) and from the subsequent revocation of probation in a previous felony theft conviction. The defendant raises numerous issues on appeal, including: whether the trial court erred in refusing to admit certain photographs; whether the court erred in admitting incriminating statements of the codefendant in the absence of a limiting instruction; whether the court erred in refusing to grant the defendant’s motion for severance of trials; whether the court abused its discretion by failing to grant the defendant’s motion for mistrial; whether the court erred in denying the defendant’s motion for a new trial based on newly discovered evidence; whether there was sufficient evidence to support the verdict; and whether the trial court erred in denying defendant’s motion for acquittal. The defendant also contends that if his conviction of aggravated robbery is reversed, then the revocation of his probation in the previous case must be reversed.
Since the defendant challenges the sufficiency of the evidence, we turn first to the facts. On June 6, 1984, at about 10:40 p.m., the Ken-Mar Amoco Station at 13th and Oliver Streets in Wichita, Sedgwick County, Kansas, was robbed. The attendant of the station, Roy Davis, said a man wearing stockings over his face and hands and a blue baseball cap forced open a sliding window in the station attendant’s booth, waved a knife in Davis’ face and demanded money. Davis gave him over $500 in cash along with two personal checks which had been cashed for customers earlier that evening. The robber stuffed some of the money into his pockets and then asked for a paper sack in which to put the rest of the money. The robber then fled. Davis immediately called the police.
Maurice Madison, a customer at the service station, witnessed the robbery. When the robber fled from the station, Madison followed him. The robber ran across a parking lot to the front of a nearby abandoned store. The robber dove into the passenger side window of a car, and the car immediately pulled away. Madison observed that the car was a Cadillac, approximately a 1974 to 1975 model, and that it was dark brown with a lighter top. He also noticed the license plate was red with white lettering. After losing sight of the car, Madison returned to the service station and told the police what he had seen. The police recovered the robber’s baseball cap from where Madison had seen it blow off.
Madison then left the crime scene and drove to a nearby fast-food restaurant. Upon leaving the restaurant and heading home, he observed the robber’s “getaway” car parked at the gas pumps of a Quik-Trip which was across the street from the Ken-Mar Amoco station. Madison immediately returned to the service station and reported his observation to the police.
Upon investigation, the police found a car which fit Madison’s description (a two-toned brown Cadillac with a red and white license plate) parked at the Quik-Trip. Mark Holley, the defendant herein, was standing behind the car and had apparently just finished pumping gas into it. A man named Willie Richardson was seated in the passenger side of the car. The police arrested both men and transported them to the crime scene. Both Davis and Madison were unable to identify either man as the robber.
After obtaining Holley’s consent, the police conducted a search of the Cadillac. A paper sack was found in the trunk of the car and a nylon stocking was found on the floorboard. Some of the stolen bills and the two personal checks were found on Richardson. More of the bills were found on the passenger side floorboard of the patrol car in which Richardson had been transported from the Quik-Trip. In all, approximately $503 was found in Richardson’s possession.
After being advised of and waiving his Miranda rights at the police station later that night, the defendant told the police that five or ten minutes before 11:00 p.m., he had been on his way to the Quik-Trip when he saw a man called “Chill Will” (a/k/a Willie Richardson) flagging him down near a Hardee’s restaurant two blocks west of 13th and Oliver. Richardson had a sack in his hand and he was very insistent about putting it in the trunk. The defendant eventually gave Richardson the trunk key and watched him put the sack in. The defendant then drove to the Quik-Trip where he bought beer and gasoline. The defendant did not mention his wife’s presence to the police.
However, at trial, both the defendant and his wife — Rochelle Holley — testified that Rochelle- had been with the defendant when he stopped to pick up Willie Richardson while they were on their way to the Quik-Trip. They also testified that Willie had obviously been drinking and was carrying a brown paper sack which they assumed contained liquor. The defendant insisted that Richardson put the container in the trunk because he didn’t want to carry an open container in his car. When they arrived at the Quik-Trip, Rochelle and the defendant went inside while Richardson remained in the car. Although Richardson had been sitting in the back seat, the defendant testified that he moved to the front while the defendant and his wife were inside the store. Rochelle testified that she had remained in the store longer than her husband and when she looked outside she saw the police arresting him. She left on foot because she had an outstanding traffic warrant and was afraid she would be arrested. The defendant and Rochelle both testified that they had been together the entire day and evening, and they denied any knowledge of, or involvement in, the robbery.
Following the joint trial of Holley and Richardson, the jury returned verdicts of guilty as to both defendants. Defendant Holley was subsequently sentenced to eighteen years to life. Also, his probation on a 1982 conviction for felony theft was revoked and sentence was reinstated (a condition of probation was that the defendant not violate the law).
The defendant first contends the trial court erred in refusing to admit photographs depicting cars similar to his Cadillac.
The State’s case against defendant Holley rested primarily on the testimony of Maurice Madison, who identified the defendant’s car as the getaway vehicle. The defendant maintained that the similarity between his car and the robber’s getaway vehicle was purely coincidental. To support his contention, the defendant proffered photographs depicting vehicles similar to his own which might have fit Madison’s description. The defendant claimed the photographed cars were all located in his neighborhood (near the Ken-Mar Amoco Station) in northeast Wichita. The photographs were apparently taken sometime between the defendant’s arrest and his trial.
The trial court excluded the evidence on the ground it was irrelevant to the present case.
Relevant evidence is evidence having any tendency in reason to prove any material fact and the determination is a matter of logic and experience, not a matter of law. State v. Abu-Isba, 235 Kan. 851, 857, 685 P.2d 856 (1984). Subject to certain exclusionary rules, the admission of physical evidence lies within the sound discretion of the trial court, and is to be determined by the court on the basis of the relevancy of the evidence and its connection with the accused and the crime charged. State v. Jakeway, 221 Kan. 142, 558 P.2d 113 (1976). An abuse of discretion exists only when no reasonable man would take the view adopted by the trial court. State v. Wilkins, 220 Kan. 735, 556 P.2d 424 (1976).
In the case at bar, no proffer was made by the defendant connecting the cars pictured with any physical evidence of the robbery. Also, there was no showing that any of those cars were in the vicinity of the robbery on the night in question. Moreover, none of the cars pictured matched Madison’s description as closely as does the defendant’s car. Although the defendant proffered eleven photographs, only five different cars were pic tured (there were various views of each car). The first car (exhibits M-Q) had no license plate; only a partial view was shown of the next two cars (exhibits R and S); a fourth car (exhibit T) had a white and blue Kansas license plate; and the fifth car (exhibits Y-W) was gold.
Photographs of the defendant’s car were admitted revealing a two-toned brown Cadillac with a red and white Missouri license plate. The defendant’s car clearly fit Madison’s description of the getaway vehicle. Moreover, physical evidence from the robbery was found in the defendant’s car.
After excluding the defendant’s proffered evidence, the trial court noted that the jurors were free to use their common knowledge that many cars exist, in a town the size of Wichita, that would fit Madison’s description. The defendant’s attorney also argued this point to the jury in closing.
Since the defendant failed to proffer evidence connecting the cars in the photographs to the robbery, the trial court did not abuse its discretion by refusing their admission.
The defendant next contends the trial court erred by allowing Willie Richardson’s confession into evidence without issuing a limiting instruction to the jury.
During the trial of this case, a police officer called by the State testified as to some incriminating statements Richardson made to him on the night of the robbery. In the patrol car on the way to the station, Richarson volunteered that “this was going to cost him [Richardson] the rest of his life.” Later, while at the police station, Richardson said, “I did it and I’m going to — I did it ... I did it and it’s all my fault, and it’s all my fault.”
On cross-examination, defendant Holley’s attorney asked the officer whether Richardson had ever indicated that defendant Holley was involved in the robbery. The officer said Richardson had made no direct statements implicating Holley. Defendant Holley’s attorney then asked whether Richardson had made any statements whatsoever implicating Holley, to which the officer replied, “he stated he was not going down by himself.” The defense then queried, “You infer that that’s a statement that implicates Mr. Holley?” The officer answered, “It implicates another person.”
The defendant now argues that the trial court erred in admitting the officer’s testimony as to Richardson’s incriminating statements without specifically instructing the jury that it should consider the confession only as to the determination of Richardson’s guilt. However, the defendant did not object to the admission of his testimony, nor did he request a limiting instruction.
At the close of all the evidence, the court instructed the jury as follows:
“Both defendants in this case are being tried at the same time for convenience and economy. While it may be unnecessary to state, the jury is instructed to consider the evidence against each defendant separately and to give no weight to any evidence affecting one defendant when considering the case of the other defendant.”
Defendant Holley did not object to this instruction nor did he request any additional instruction.
The rule is well established in this state that a party may not assign as error the giving or failure to give an instruction unless he objects to the instruction stating the specific grounds for the objection. Absent such objection, an appellate court may reverse only if the trial court’s failure to give the instruction was clearly erroneous. State v. Peck, 237 Kan. 756, 764, 703 P.2d 781 (1985).
Defendant Holley claims the trial court’s failure to give the instruction sua sponte was clearly erroneous in light of this court’s holding in State v. Sullivan & Sullivan, 224 Kan. 110, 578 P.2d 1108 (1978). In Sullivan, the trial court had refused to give the requested limiting instruction prior to receiving the codefendant’s confession into evidence. The confession directly implicated the defendant. This court reversed the defendant’s conviction, stating, “It would appear that the admission of the statement of the [codefendant] had an adverse effect upon [the defendant’s] theory of defense and when coupled with the refusal of the trial court to give a limiting instruction we cannot say the error is harmless.” 224 Kan. at 118.
The facts in the present case clearly differ from those in Sullivan. First, a limiting instruction was given even though it did not refer directly to Richardson’s confession. Second, the defendant did not object to the officer’s testimony nor did he request a limiting instruction.
Finally, Richardson’s statement, “I’m not going down by myself’ did not incriminate defendant Holley. Since the eyewitness — Madison—had already testified that there was a getaway car, it was clearly established that Richardson had not been alone in perpetrating the robbery. The matter to be determined by the jury was who the driver was — that is, whether it was defendant Holley. Since Richardson did not mention any names, his statement did not implicate Holley. Assuming this court determined Richardson’s statement was prejudicial to Holley, it could not find reversible error because the statement was elicited on cross-examination by defendant Holley’s attorney. The defendant may not invite error and then complain of that error on appeal. State v. Falke, 237 Kan. 668, 682, 703 P.2d 1362 (1985).
The trial court’s failure to give a limiting instruction sua sponte was not clearly erroneous. The statements did not incriminate the defendant Holley. Furthermore, the fact that Richardson committed the robbery did not in any way affect Holley’s defense that he was simply giving Richardson a ride and knew nothing of the money. Therefore, the statements were not prejudicial to Holley and the court did not err by admitting them without a specific limiting instruction.
The defendant contends the trial court erred in refusing to grant his motion for a separate trial from that of his codefendant, Willie Richardson.
The statute governing joinder of two or more defendants for trial is K.S.A. 22-3202(3). It permits joinder if the defendants are “alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting the crime or crimes.” Under K.S.A. 22-3204, when two or more defendants are jointly charged with crime, the court may order a separate trial when requested by a defendant or the prosecuting attorney. This court has repeatedly stated that the granting of a separate trial lies within the sound discretion of the trial court, and, absent an abuse of the exercise of the power of discretion, its action will not be set aside on appeal. State v. Falke, 237 Kan. at 674; State v. Myrick & Nelms, 228 Kan. 406, 416, 616 P.2d 1066 (1980).
Generally, an order for the separate trial of a defendant jointly charged with a codefendant must be based upon some ground sufficient to establish prejudice. The usual grounds for which a severance will be granted were stated in State v. Martin, 234 Kan. 548, 549, 673 P.2d 104 (1983), as follows:
“ ‘(1) [T]hat the defendants have antagonistic defenses; (2) that important evidence in favor of one of the defendants which would be admissible on a separate trial would not be allowed on a joint trial; (3) that evidence incompetent as to one defendant and intraducibie against another would work prejudicially to the former with the jury; (4) that a confession by one defendant, if introduced and proved, would be calculated to prejudice the jury against the others; and (5) that 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.’ ”
In this' case, the defendant claims two of these grounds were present in his case. First, he argues the jury was prejudiced against him because of the mass of evidence which was intraducibie against Richardson but incompetent as to him. Second, he argues the jury was prejudiced against him because of the admission of Richardson’s confession.
These grounds for severance which the defendant asserts on appeal were not asserted before the trial court. Although the defendant did move for a separate trial, the basis of his motion below was his belief that defendant Richardson would testify that he “found” the stolen money. The defendant felt such testimony would be so inherently unbelievable that the jury would discount Richardson’s testimony that defendant Holley merely gave him a ride and had no knowledge of the money Richardson carried. The defendant did not argue that he would be prejudiced by the abundant evidence against Richardson or by the introduction of Richardson’s confession. The defendant cannot raise points on appeal which were not presented to the trial court. State v. Falke, 237 Kan. at 676.
Even if the defendant had raised these points below, we could not find the trial court abused its discretion by failing to grant separate trials. Richardson did not testify at trial and presented no defense of having simply “found” the money. A police officer was allowed to testify as to Richardson’s confession, but, as was previously noted, this was not prejudicial to defendant Holley in light of his defense. Also, Richardson’s confession did not implicate Holley, and most significantly Holley did not contemporaneously object to the introduction of this testimony.
While it is true that there was a greater amount of evidence against Richardson than against Holley, a claim of disparate evidence justifies severance in only the most extreme cases. United State v. Bolts, 558 F.2d 316 (5th Cir. 1977). A defendant is not entitled to severance simply because separate trials would provide him with a better chance of acquittal. Before a trial court may grant severance on this ground it must be shown that the prejudice which would flow from a joint trial would be beyond the curative power of a cautionary instruction, thereby denying the defendant a fair trial. United States v. Alpern, 564 F.2d 755 (7th Cir. 1977). In this case, an adequate cautionary instruction was given. We can assume it was within the jury’s capacity to follow this instruction and to assess each defendant’s guilt or innocence solely on the basis of the evidence against him. State v. Pink, 236 Kan. 715, 726, 696 P.2d 358 (1985).
We find no error in the trial court’s refusal to sever Holley’s trial.
The defendant contends the trial court abused its discretion in denying his motion for a mistrial based on juror misconduct.
The jury initially returned a verdict of “guilty” as to both defendants. When the jury was subsequently polled, one of the jurors answered “no” when asked whether the verdict read was his verdict. Both defendants moved for a mistrial. The trial court took the motion under advisement and sent the jury back for further deliberations. A short time later, the jury again returned verdicts of guilty. During the polling of the jury, the juror who had earlier answered “no” said he had misunderstood the question he had been asked. The second poll revealed the verdicts were unanimous. Accordingly, the trial court denied the motion for mistrial.
Declaration of a mistrial under K.S.A. 22-3423 is a matter entrusted to the trial court’s discretion. State v. Rider, Edens & Lemons, 229 Kan. 394, 407, 625 P.2d 425 (1981). There was absolutely no showing of juror misconduct in this case. The trial court did not abuse its discretion by denying the motion for a mistrial.
The defendant contends the trial court erred in denying his motion for a new trial under K.S.A. 22-3501 based upon newly discovered evidence. The new evidence is found in an affidavit submitted to the trial court by the defendant in which he states that, after his conviction, Willie Richardson told him the name of the actual getaway driver was “Fast Eddie” and that he drove a brown and gold 1974 Oldsmobile 98 with an Arizona license plate (red and white). Attached to the defendant’s motion for new trial were two unsigned, handwritten letters which were purportedly from Richardson and which absolved defendant Holley of any knowing involvement in the robbery. The defendant did not call Richardson to testify in his motion for new trial. The trial court denied the motion, finding defendant Holley’s claims as to what Richardson had told him were inherently unreliable. The trial court also found the statements in the letters which were purportedly from Richardson had been directly contradicted by statements Richardson had made to his pre-sentence investigator.
K.S.A. 22-3501(1) permits a district court to order a new trial on the ground of newly discovered evidence. The rules governing these motions were set forth in State v. Johnson, 222 Kan. 465, 471, 565 P.2d 993 (1977), as follows:
“The granting of a new trial for newly discovered evidence is in the trial court’s discretion. (State v. Larkin, 212 Kan. 158, 510 P.2d 123, cert. den. 414 U.S. 848, 38 L.Ed.2d 95, 94 S.Ct. 134.) A new trial should not be granted on the ground of newly discovered evidence unless the evidence is of such materiality that it would be likely to produce a different result upon re-trial. (State v. Hale, 206 Kan. 521, 479 P.2d 902.) The credibility of the evidence offered in support of the motion is for the trial court’s consideration. (State v. Anderson, 211 Kan. 148, 505 P.2d 691; State v. Larkin, [212 Kan. 158].) The burden ofproofis on defendant to show the alleged newly discovered evidence could not with reasonable diligence have been produced at trial. (State v. Lora, 213 Kan. 184, 515 P.2d 1086, State v. Arney, 218 Kan. 369, 544 P.2d 334.) The appellate review of an.order denying a new trial is limited to whether the trial court abused its discretion. (State v. Campbell, 207 Kan. 152, 483 P.2d 495; State v. Anderson, [211 Kan. 148].)”
These rales have been often reiterated by this court, most recently in State v. Hobson, 237 Kan. 64, 697 P.2d 1274 (1985).
The trial court found the evidence in this case was not credible. We cannot say the trial court abused the exercise of its power of discretion in this case.
The defendant argues the verdict was not supported by the evidence.
In a criminal action, when the defendant challenges the sufficiency of the evidence to support a conviction, the standard of review on appeal is whether the evidence, viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder 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 the charge are sustained. State v. Peck, 237 Kan. at 764; State v. Pink, 236 Kan. at 729.
In support of his contention that the verdict is contrary to the evidence, the defendant attempts to discredit Maurice Madison’s identification of his car, pointing to inconsistencies in his various descriptions. The defendant also emphasizes the failure of anyone to identify Holley; the lack of logic in a robber parking his car across the street from the scene while the police are investigating; the lack of direct evidence of Holley’s involvement in the robbery; the pretrial, post-arrest statement of Richardson that “it’s all my fault”; the failure of the police to find any stolen property on Holley; and the fact that Holley chose to testify at trial.
The defendant is essentially asking this court to reweigh the evidence, which we will not do. It is the jury’s function, and not an appellate court’s, to weigh the evidence and pass upon the credibility of witnesses. State v. Pink, 236 Kan. at 729; State v. Holt, 221 Kan. 696, 561 P.2d 435 (1977). An appellate court will not substitute its evaluation of the evidence for that of the jury.
In this case, Maurice Madison witnessed the robber diving into a getaway car and was able to describe the car. Madison later spotted the same car across the street from the service station. Coincidentally, the passenger in the car — Richardson—was found carrying the money which had been stolen from the service station. Also, a stocking and paper sack were found in the car — the attendant testified that the robber wore a stocking over his face and that he asked for a paper sack to put the cash in.
The jury apparently believed Madison’s testimony. Since defendant Holley owned the car, and since — by his own testimony — he had been the only one to drive it that day, the jury concluded he was the driver of the getaway car. A conviction of even the gravest offense may be sustained by circumstantial evidence. State v. White & Stewart, 225 Kan. 87, Syl. ¶ 14, 587 P.2d 1259 (1978).
After considering the evidence in the light most favorable to the prosecution, we find there was sufficient evidence to support the verdict.
The defendant also contends the trial court erred by denying his motion for a judgment of acquittal.
In passing on a motion for judgment of acquittal, a trial judge must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact therefrom, a reasonable mind, or rational trier of facts, might fairly conclude guilt beyond a reasonable doubt. State v. Fosnight, 235 Kan. 52, 53, 679 P.2d 174 (1984); State v. Mack, 228 Kan. 83, 89, 612 P.2d 158 (1980). For the reasons stated in the previous issue, we find the trial court did not err by denying the defendant’s motion.
Finally, the defendant contends that if this court reverses his conviction for aggravated robbery, the revocation of probation on his earlier conviction must be reversed, and probation reinstated. Since we affirm the defendant’s conviction, this issue is moot.
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The opinion of the court was delivered by
Lockett, J.:
Tax protesters appeal the ruling of the District Court of Sherman County which held that the intangibles tax, as authorized by K.S.A. 1984 Supp. 12-1,101, is constitutional.
The appellants are tax protesters from Sherman County, Kansas. They own intangible property in the form of money, notes and other evidence of debt. The Sherman County Treasurer assessed against them an intangibles tax for 1983. The residents paid the taxes under protest and filed a request for refund with the Kansas Board of Tax Appeals which was denied.
The tax protesters appealed to the District Court of Sherman County, Kansas. The district court granted summary judgment for Sherman County holding that the Kansas intangibles tax is not a statewide tax, that the intangibles tax complies with the Kansas Constitution in that it is equal and uniform in each taxing unit, and that the intangibles tax does not incorporate an unconstitutional delegation of power.
On appeal, the tax protesters argue that the present intangibles tax is unconstitutional because it is a statewide tax involving an unlawful delegation of power, and it is not uniform and equal throughout the state.
A history of the intangibles tax in Kansas is provided in detail in Von Ruden v. Miller, 231 Kan. 1, 642 P.2d 91 (1982). In that case, this court determined that the Kansas intangibles tax as authorized under K.S.A. 1980 Supp. 79-3109 was a statewide tax and an unconstitutional delegation of legislative authority by the state legislature to local units of government. In response to Von Ruden, the legislature repealed 79-3109 and enacted what became K.S.A. 1984 Supp. 12-1,101, the statute questioned in this case.
The tax protesters argue that the present intangibles tax differs from the old intangibles tax in form only and not in substance. Under the old tax, the state imposed a three percent tax which local taxing units received unless their county commissioners adopted a resolution reducing or eliminating the tax. Under the new tax, local governing units must adopt a resolution to impose the tax which must fall within the limitations imposed by the legislature. Otherwise, the procedure is basically the same under both the previous and the present tax. Property owners file returns with the state which determines the amount of tax due. The tax is collected by the county treasurer and reimbursed to the local unit of government. The appellants contend that this gives a statewide character to the present tax, and allows an unlawful delegation of legislative power, and is, therefore, unconstitutional.
In examining the constitutionality of a statute, the statute is presumed to be constitutional. All doubts are resolved in favor of its validity. Before the statute will be declared unconstitutional, it must clearly appear to violate the constitution. It is the duty of the court to uphold the statute under attack, if possible, rather than defeat it. If there is any reasonable way a statute may be construed constitutional, it should be done. Von Ruden v. Miller, 231 Kan. at 3.
The following constitutional and statutory provisions are relevant to this case:
Article 11, § 1 of the Kansas Constitution requires the legislature to provide a uniform and equal rate of assessment and taxation, except it may provide for the classification and the taxation uniformly as to class of motor vehicles, mineral products, money, mortgages, notes and other evidence of debt or may exempt any of such classes of property from property taxation and impose taxes upon another basis.
K.S.A. 1984 Supp. 12-1,101(a) provides that in 1982 or thereafter the board of county commissioners of any county is authorized by resolution to impose a tax for the benefit of the county upon the gross earnings derived from money, notes and other evidence of debt having a tax situs in the county.
Article 2, § 1 of the Kansas Constitution confers upon the House of Representatives and the Senate the legislative power of the state.
Article 2, § 21 of the Kansas Constitution authorizes the legislature to confer power of local legislation upon political subdivisions. This power is discussed in State, ex rel., v. Hardwick, 144 Kan. 3, 6, 57 P.2d 1231 (1936). See also State, ex rel., v. Hines, 163 Kan. 300, 302-03, 182 P.2d 865 (1947).
The constitution limits the power of legislation conferred to political subdivisions by the legislature to matters of local concern with which the local units of government could be expected to deal more effectively than the legislature. State, ex rel., v. City of Topeka, 176 Kan. 240, 245-46, 270 P.2d 270 (1954). Kan. Const. art. 12, § 5 confers home rule power to cities. In Claflin v. Walsh, 212 Kan. 1, 7, 509 P.2d 1130 (1973), this court discussed the home rule limitations. It held that the home rule power is subject to optional control by legislative action in four areas, including: (1) enactments of statewide concern which are applicable uniformly to all cities; (2) other enactments of the legislature applicable uniformly to all cities; (3) enactments applicable uniformly to all cities of the same class limiting or prohibiting the levying of any tax, excise, fee, charge or other exaction; and (4) enactments of the legislature prescribing limits of indebtedness.
None of these provisions confer on local governments the power to legislate statewide issues. Local matters under the home rule powers present no constitutional impediment. See Von Ruden, 231 Kan. at 11-12.
The taxpayers claim that the test for a statewide concern, as stated in Von Ruden, is whether the enactment is applicable uniformly to all subdivisions. They claim that the intangibles tax fits the Von Ruden rationale because it is applicable to any city, township or county in the state. In VonRuden, the majority of the court determined that under the previous law the state set the levy and, if the local units of government took no action, a statewide levy resulted. The levy set by the state had no relationship to the program or needs of the local units of government. The majority then concluded the intangibles tax was a statewide tax and the legislature had authorized local governments to legislate a local reduction or total exemption from the tax. That authority was an unauthorized delegation of legislative authority to the local units of government by the state legislature.
While it is true that the present statute makes it possible for any city, township or county in the state to enact an intangibles tax for the benefit of that local unit of government, the statute does not require every city, township or county to participate in such a tax. It is left to each governmental entity to determine whether its needs require the levy of a tax. The taxing unit for the intangibles tax is each individual unit of local government — not the state as a whole. Within each taxing unit there is required to be uniformity. The tax is for the benefit of each governmental entity levying such a tax. The provisions of K.S.A. 1984 Supp. 12-1,101 authorizing cities, townships and counties to enact an intangibles tax for the benefit of the local unit of government are neither authorization for a statewide tax nor, under Article 2, § 1 of the Kansas Constitution, an unauthorized delegation of legislative authority to local government.
The tax protesters claim that if the intangibles tax were truly a local matter, the county could impose such a tax without legislative approval. They contend that, because the legislature has authorized such a tax, it must be of a statewide nature.
As noted in Hardwick, 144 Kan. 3, however, the legislature has the authority to confer power of local legislation. It has done this in other situations with numerous statutes whereby the legisla ture authorizes, but does not require, a local unit of government to impose a tax. Among those are:
K.S.A. 12-1220 et seq., which does not require a municipality to establish a library, but, if one is established by local choice, allows a tax not to exceed a specified number of mills to be levied for its establishment and maintenance.
K.S.A. 12-1680 et seq., which authorizes cities and counties on a local option basis to levy a set mill amount for programs for the elderly.
K.S.A. 12-lla01, which authorizes counties to levy an additional one-half mill to provide additional law enforcement services.
K.S.A. 1984 Supp. 12-187 et seq., which authorizes municipalities to levy a sales tax.
The constitutional maxim which prohibits the legislature from delegating its power to any other body or authority is not violated by vesting cities, townships or counties with certain powers of legislation as to matters purely of local concern. The delegation of certain powers to political subdivisons of government recognizes that governmental subdivisions are usually better judges of their immediate and local needs than the legislature. State, ex rel., v. City of Topeka, 176 Kan. at 245-246.
The tax protesters next claim that the intangibles tax is not uniform and equal statewide, and that the Kansas Constitution requires a uniform and equal rate of assessment throughout the state. In State, ex rel., v. Hayden, 197 Kan. 199, 205, 416 P.2d 61 (1966), this court stated:
“[Article 11, § 1 providing] for uniform and equal rates of assessment does not require that the levy and amount raised by the tax be the same in each taxing district. The constitution only requires a uniform and equal rate throughout the territory in which the tax is levied and the principle of equality is fully satisfied by making local taxation equal and uniform as to all property within the limits of the taxing district.”
In State ex rel. Schneider v. City of Topeka, 227 Kan. 115, 605 P.2d 556 (1980), the constitutionality of tax increment financing of programs designed to redevelop blighted business areas in Kansas cities, as authorized by K.S.A. 1979 Supp. 12-1770 et seq., was considered. It was determined that the redevelopment act required any property within a redevelopment area to be assessed and taxed in the same manner as if located outside the area, that Article 11, § 1, of the Kansas Constitution does not require uniformity in the distribution of tax money, and that where the rate of property assessment is uniform throughout a taxing district, it fulfills the constitutional mandate.
Intangible property is separately classified as an exception to the uniform and equal clause of Article 11, § 1 of the Kansas Constitution but is subject to the requirement that the tax thereon must be uniform within the class. Since the rate of the intangibles tax assessment is uniform and equal within a taxing district, the constitutional requirement of uniform and equal taxation has been fulfilled.
The county attempts to raise other issues on appeal. Those issues were not decided in the trial court, and it is, therefore, unnecessary for us to discuss them.
The district court is affirmed. | [
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The opinion of the court was delivered by
Miller, J.:
Christal L. Winter was charged in the District Court of Sedgwick County with theft of more than $150 belonging to Cricket Alley, Inc., contrary to K.S.A. 1984 Supp. 21-3701(a), a class E felony. The trial court sustained defendant’s motion to dismiss and the State appeals. The material facts are as follows.
On Friday, September 7, 1984, shortly after 9:00 p.m., the assistant manager of Cricket Alley, a clothing store, placed a bank bag containing the store’s receipts in a bank night deposit drop. Unbeknown to her, the drop was inoperative and the bag did not fall on into the building. The next morning the manager of the store went to the bank to pick up the bag and the deposit ticket, and found that the bank had not received the deposit. On Saturday, September 8, and Sunday, September 9, although the store was open, the deposit bag was not returned or its whereabouts discovered. On Monday, September 10, the manager located the driver of the car which was behind the assistant manager on Friday when she made the deposit drop. Defendant was the owner of that vehicle. Defendant initially denied any knowledge of it, but after a few minutes admitted that she had the Cricket Alley bank bag and that it was at home. She promised to return it later that day. About 6:15 p.m. on September 10, defendant, with her attorney, Mr. Rerg, returned the bag to Cricket Alley. The manager counted the cash and checks and all the money was there. After defendant and her attorney left, the manager turned the bag and its contents over to the police. The police inventoried the bag, listing the denominations and serial numbers of the bills, each of the checks, and the deposit slip found therein. On September 12, the police returned the bag and its contents to a representative of Cricket Alley. The money and checks were deposited and returned to the stream of commerce. On September 13, this case was filed and the defendant was charged with theft of the money.
At a preliminary hearing held on October 2, the manager and assistant manager of Cricket Alley testified that the cash and checks were placed in the bag in a certain order when the deposit was prepared, but that when the bag was returned on September 10, the sequential order of the cash had been altered. On October 10, defendant filed a motion for production of the bank depository bag and its contents, so that defendant might have the contents examined for fingerprints. Apparently the State and the defendant were not aware that the bag and its contents had been returned to Cricket Alley. The trial court sustained the motion on October 19.
On December 12, defendant filed a motion to compel production and on December 21, the trial judge found that he had previously ordered production of the items; that they could be exculpatory in nature; that the items were returned to Cricket Alley after the inventory; and that the items could no longer be produced in a condition relevant to the requested examination. Nevertheless, the court sustained defendant’s motion to compel.
On January 11, 1985, defendant filed a motion to dismiss for failure to produce in accordance with the discovery orders, and on January 18, hearing was held before a different judge. No evidence was introduced but, after oral argument, the trial court found that the return of the bag and contents to Cricket Alley was not done in bad faith but that the items could prove to be exculpatory in nature. The court concluded that the only appropriate sanction was dismissal of the action, and defendant’s motion to dismiss was sustained. The issues on appeal are whether the defendant was prejudiced by not having access to the bag and whether the trial court erred in dismissing the case.
We first deal with the action of the police department in returning the cash and the checks to the owner. The trial court found that the return was not made in bad faith and we agree. Certainly from the evidence there was no indication of bad faith. At the time of the return, the State had no knowledge that the bills or checks themselves were at all material to the defense.
Two statutes should be mentioned. K.S.A. 22-2512 provides for the disposition of property seized. It provides in pertinent part:
“Property seized under a search warrant or validly seized without a warrant shall be safely kept by the officer seizing the same unless otherwise directed by the magistrate, and shall be so kept as long as necessary for the purpose of being produced as evidence on any trial. The property seized may not be taken from the officer having it in custody so long as it is or may be required as evidence in any trial. The officer seizing the property shall give a receipt to the person detained or arrested particularly describing each article of property being held and shall file a copy of such receipt with the magistrate before whom the person detained or arrested is taken.” (Emphasis supplied.)
This statute is obviously intended to deal with property which is seized under a search warrant or property which is taken from the accused. It requires the giving of a receipt to the person detained or arrested and provides for the return of that property to' the owner, when it is no longer required as evidence, upon notice and order of the trial court. That statute was interpreted by the Court of Appeals in State v. Antwine & McHenry, 6 Kan. App. 2d 900, 636 P.2d 208 (1981), rev. denied 230 Kan. 819 (1982). The statute is inapplicable here since the property in this case was not seized under a search warrant and was not otherwise “validly seized,” in the sense of the statute, but was taken temporarily from the custody of its owner in order that the police might inventory it.
A more recent enactment is K.S.A. 60-472, which provides in effect that in any prosecution for the wrongful taking of property, photographs of the property are competent evidence of the property and may be admissible in evidence to the same extent as if the property had been offered in evidence. That statute provides for the return of the property to the owner upon the filing of the photograph and a report, under oath, with the law enforcement authority. That statute also is inapplicable here since we are not advised that photographs were taken. Both statutes, however, show the concern of the legislature for the prompt return of stolen property to the rightful owners. As the court said in Antwine & McHenry.
“It is tragedy enough that a person has been deprived of his property through some criminal act of another without such loss being compounded by any unnecessary delay in returning the property to its rightful owner. It is the duty of the prosecution and the court to see that a person criminally deprived of property has it restored to him, if possible, at the earliest opportunity consistent with the protection of the rights of both the State and the defendant.” 6 Kan. App. 2d at 903.
The prompt return of the property here comports with the legislative and judicial concern, and certainly indicates good faith on the part of the police.
We next turn to the defendant’s argument that a forensic examination of the contents of the bag would not reveal any fingerprints of the defendant, thus negating any inference that the defendant handled the money and considered retaining it permanently. We do not agree. There is no evidence before the court that fingerprints could have been recovered from the currency and other documents within the bag at a time more than thirty days after its return, when production was first requested. But assuming that to be true, a forensic examination might or might not have disclosed fingerprints. If the defendant’s fingerprints were on any of the contents, that evidence would not have been helpful to the defendant. If defendant’s fingerprints were not found, that could be because the defendant did not handle the contents, or because of the time lapse, or because the prints were smudged, etc. There is, of course, no evidence as to what the examination might or might not have disclosed. It would certainly be reasonable for one in defendant’s position to have opened the bag in order to determine the ownership thereof. Upon consideration of all of the arguments advanced, however, we are not convinced that the defendant was materially prejudiced by her inability to have the contents of the bag examined forensically.
We now turn to the final question of whether the trial court erred in dismissing the case. This sanction was taken for violation of a discovery ruling of the trial court. At the time the motion to compel production was sustained, the trial court was aware that the items could not be produced in a condition relevant to a forensic examination. The items were not in the State’s possession; they were not in the possession of the owner; and they were not in the possession of the bank. They had entered into the stream of commerce and were beyond the reach of anyone.
It will be helpful to review some of the guidelines relating to the imposition of sanctions for failure to abide by discovery orders. Adequate sanctions are, of course, necessary for the enforcement of discovery procedures. Binyon v. Nesseth, 231 Kan. 381, 384-85, 646 P.2d 1043 (1982). The trial court is granted wide discretion in determining what sanctions should be imposed. The presence or lack of good faith, and whether or not the action of the party was willful or intentional, are considered in many decisions. See Lorson v. Falcon Coach, Inc., 214 Kan. 670, 676-78, 522 P.2d 449 (1974). Dismissal of an action is a drastic remedy which should be used only in extreme circumstances. Ordinarily, the court should impose the least drastic sanctions which are designed to accomplish the objects of discovery but not to punish. See Locke v. Kansas Fire & Cas. Co., 8 Kan. App. 2d 678, 665 P.2d 776 (1983). The rules stated, while emanating from civil cases, are generally applicable in criminal cases. We recognize that, additionally, sanctions may be imposed where there is a recurring problem or there are repeated instances of intentional failure to disclose or to abide by the court’s discovery rulings. None of that, however, is apparent here. The State did not obliterate any obvious exculpatory evidence; it did not attempt to hide evidence favorable to the defendant; and there is no indication that the trial court was faced with a repeated situation which needed corrective action.
In State v. Jones, 209 Kan. 526, 498 P.2d 65 (1972), defendant, convicted of murder in the first degree, sought reversal because the trial court overruled his objection to the use of certain exhibits which the State had failed to show him under the clear and explicit terms of a discovery order. The trial court did not require the State to explain its failure to disclose. We said:
“The discovery order made by the court was comparable to pretrial discovery and inspection now authorized by K.S.A. 1971 Supp. 22-3212, which became effective July 1, 1970. This statute is based upon Rule 16 of the Federal Rules of Criminal Procedure and, like its parent, contains the following provision respecting failure to comply with any order made:
“ ‘(7). . . If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this section or with an order issued pursuant to this section, the court may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems just under the circumstances.’
“The clear import of this proviso, which is identical to one contained in Federal Rule 16 (g), is to vest the trial court with wide discretion in dealing with the failure of a party to comply with a discovery and inspection order and federal tribunals have so held (see cases cited 1 Wright, Federal Practice and Procedure, §§ 260-261).
“In Hansen v. United States, 393 F. 2d 763 (CA8, 1968), it was held that Rule 16 (g) relating to failure to comply with a discovery order does not require the application of sanctions but allows the trial court discretion in admitting proper evidence not disclosed to defendant as contemplated by a pretrial order.
“Respecting the application of sanctions under Federal Rule 16 (g), the following is stated in 1 Wright, ibid., § 260:
“ ‘In exercising the broad discretion as to sanctions given by this provision, the court should take into account the reasons why disclosure was not made, the extent of the prejudice, if any, to the opposing party, the feasibility of rectifying that prejudice by a continuance, and any other relevant circumstances.’ (p. 533.)
“See, also, Federal Advisory Committee’s Note on Rule 16, 39 F.R.D. 175, 178.”
Later in the opinion we quoted the American Bar Association Project on Standards for Criminal Justice, Standards Relating To Discovery and Procedure Before Trial § 4.7 (Approved Draft, 1970), where the following is stated:
“ ‘. . . The Committee’s general view . . . was that the court should seek to apply sanctions which affect the evidence at trial and the merits of the case as little as possible, since these standards are designed to implement, not to impede, fair and speedy determinations of cases.’ ” 209 Kan. at 530.
In United States v. Kenny, 645 F.2d 1323 (9th Cir. 1981), defendants were convicted of various counts on a multiple-count indictment alleging conspiracy, fraudulent government contracting activities, bribery and tax evasion. One of the defendants argued that his indictment should have been dismissed because the government had destroyed certain records that might have been exculpatory. The trial court denied the motion and on appeal the Ninth Circuit Court of Appeals said:
“The prosecution’s case against Oelberg included allegations that no ‘deliverable’ was ever produced under certain of the fraudulent contracts. Oelberg claims that when he retired from NELC in 1975, he left records and OMC deliverables in a secure area of NELC, and that these records and deliverables were intentionally destroyed by government agents at a time when Oelberg was a known target of the investigation.
“The record contradicts Oelberg’s contentions, showing that (1) any destruction of Oelberg’s records was part of the normal housekeeping functions of NELC (a policy of destroying obsolete classified materials), (2) such destruction was unrelated to and prior to the commencement of the criminal investigation (long before Oelberg became a target), and (3) since no record was made of what was destroyed, no one could be sure that any exculpatory materials were included among the destroyed records. There is ample support for the District Court’s denial of Oelberg’s motion.” 645 F.2d at 1347.
Similarly, here, the property was returned in the usual course of business by the police department. There was no indication then and there is no evidence now that any examination of that property would be favorable to the defendant. The return was prior to the commencement of the criminal action. Finally, no one can be sure, no matter what fingerprints might or might not have been found, that any such finding would be exculpatory.
The return of the property and its absence for the purposes of a forensic examination did not violate any constitutional rights of the defendant. Even assuming, as the trial court did here, that the unavailability of the material was prejudicial to the defendant, much less severe sanctions could have been imposed. As the State suggests, the trial court could have forbidden the State from introducing any evidence to show the change in the order of the currency within the bag.
However, upon consideration of all of the arguments, we conclude that no sanctions at all were warranted here, and thus, the trial court erred in dismissing the case.
The judgment is reversed and the case is remanded to the trial court for further proceedings in accordance with this opinion. | [
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|
Per Curiam:
Edward S. Dunn, of Holton, Kansas, has petitioned this court for reinstatement to the practice of law in the State of Kansas. Mr. Dunn was indefinitely suspended from practice by this Court on the 23rd day of September, 1977. In re Dunn, 223 Kan. 9, 569 P.2d 366 (1977). Petitioner’s suspension resulted from his plea of nolo contendere following plea negotiations in federal district court to one count of filing a false and fraudulent federal income tax return.
Upon receipt of the petition for reinstatement, it was referred to the Kansas Board for Discipline of Attorneys for investigation, hearing and recommendations. A three-member panel of the Board undertook such investigation and hearing and on December 12, 1984, filed its report with the Clerk of the Appellate Courts wherein a majority of the panel recommended that petitioner be reinstated to the practice of law. In arriving at its recommendations, the panel relied upon State v. Russo, 230 Kan. 5, 630 P.2d 711 (1981), in concluding that Mr. Dunn had been rehabilitated to the extent that he should be reinstated to the practice of law. In Russo we set forth eight factors which should be considered in any reinstatement action. We held:
“Factors to be considered in determining whether a former attorney should be readmitted to the practice of law include: (1) the present moral fitness of the petitioner; (2) the demonstrated consciousness of the wrongful conduct and disrepute which the conduct has brought the profession; (3) the extent of petitioner’s rehabilitation; (4) the seriousness of the original misconduct; (5) conduct subsequent to discipline; (6) the time elapsed since the original discipline; (7) the petitioner’s character, maturity and experience at the time of the original discipline; and (8) the petitioner’s present competence in legal skills.” Syl. ¶ 4.
We also determined that the nature and seriousness of the original conduct which led to disbarment or suspension may, as a thi'eshold matter, be such as to pi'eclude reinstatement. In doing so, we held:
“The seriousness of the underlying offense which led to the prior discipline may, as a threshold matter, preclude reinstatement such that further inquiry as to rehabilitation of the petitioner is not warranted.” Syl. II 5.
To deny, as a threshold matter, consideration of reinstatement based upon the original misconduct requires that it be of such seriousness and nature that the possibility of rehabilitation is remote and that the protection of the public and the preservation of the ethical and moi'al standards of the legal profession precludes reinstatement. The Board, in its panel report to this Court, presented a lengthy and detailed analysis of Mr. Dunn’s original misconduct and his conduct since suspension in 1977. Although not repeated here, the panel quoted extensively from the original Board findings that led to Mr. Dunn’s suspension. The x'eport states:
“[T]he conduct which indicated to the original panel that he was unfit to practice law was his negligent failure to keep or secure sufficient business records to accurately determine the income received by him.” p.15.
“[T]he original panel report in this matter did not determine or find that he [Dunn] was not ‘morally fit to engage in the practice of law’ but only determined he was negligent in keeping of his records. . . . There was no evidence to the-contrary as to Petitioner’s ‘moral’ fitness in either the original proceeding or the present proceeding.” p.17.
The panel painstakingly reviewed and applied the eight factors set forth in Russo and carefully reviewed the testimony and other evidence in reaching its conclusion to recommend the reinstatement of Mr. Dunn. We see nothing to be gained by setting forth in detail the report of the panel although we should point out that one of the members dissented from the majority report. Suffice it to say, a majority of the Court concurs with and accepts the majority report of the Board.
One further matter remains which causes this Court considerable concern and that is a determination of the petitioner’s present competence in legal skills. Petitioner’s competence to practice law was not an issue in the original suspension proceedings and many of his former clients and colleagues have come forward in support of his reinstatement indicating their willingness to rely upon Mr. Dunn in the future. None of them, however, are in a position to judge the present legal competence of the petitioner and that duty must, of necessity, fall upon this Court. It is obvious to any practitioner of the law that there have been extensive changes, both procedurally and substantively, over the past eight years. The fact that a person was a competent practitioner of the law in 1977 does not, in and of itself, assure that the same individual would be a competent practitioner today. The record reflects that since his suspension petitioner has been occupied in farming and as manager of a rural water district. Nothing in the record discloses that petitioner has kept abreast of the current state of the law or is cognizant of and familiar with the many changes which have taken place in recent years. The hearing panel report states:
“In regard to item eight, Petitioner’s present competence in legal skills is a matter that needs determination before reinstatement, and Petitioner should establish that he is presently qualified in legal skills. That qualification could be determined by requiring Petitioner to take the next bar examination given by the Kansas Board for Admission of Attorneys or such other test the Court may prescribe.” p.19.
A majority of the members of this Court are of the opinion the petitioner should successfully take and pass the Multistate Professional Responsibility Examination and the Kansas Bar Examination as a condition of reinstatement. It is therefore the opinion of the Court that upon the reporting of the successful taking and completion of the Multistate Professional Responsibility Examination and the Kansas Bar Examination to the Clerk of the Appellate Courts and consideration thereof by the Court, an order shall be issued reinstating the petitioner, Edward S. Dunn, to the practice of law in Kansas.
Schroeder, C.J., dissenting. | [
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|
The opinion of the court was delivered by
Miller, J.:
This is an appeal by the plaintiff, Professional Lens Plan, Inc., from an order entered by the Riley District Court granting a motion for summary judgment in favor of the defendant, Ohio Scientific, a corporation. This is the second appearance of this case in this court. See Professional Lens Plan, Inc. v. Polaris Leasing Corp., 234 Kan. 742, 675 P.2d 887 (1984). The sole issue here is whether the record establishes that Impact Systems was the agent of Ohio Scientific. The trial court found that it did not.
Early in 1979, Professional Lens Plan, Inc., (PLP, or the plaintiff) engaged Loren H. Shellabarger to help select a computer system. He had wide experience in the field and, while he had no detailed knowledge of Ohio Scientific’s computers, he was aware of them as well as forty or fifty others. During Shellabarger’s search, Ohio Scientific (OSI) ran several large display ads in the microcomputer media. The ads listed a telephone number. Shellabarger called the OSI number and was referred to two dealers, one of which was Impact Systems, a corporation in Lee’s Summit, Missouri. He visited several times over a two- or three-month period with Gary Comens, president and principal owner of Impact.
Ultimately, Shellabarger presented five computer systems to Dr. Price, one of the principals of PLP, and Price selected a computer manufactured by OSI. An order was placed with Impact. Impact did not carry computers in stock, but ordered a C3-B microcomputer from OSI, and an NEC printer and a terminal from Tekaids. The computer was delivered in September 1979. For tax purposes, PLP leased the computer from Polaris Leasing Corporation; Polaris paid Impact for the system but had nothing to do with the selection of or negotiation for the system. Impact delivered and installed the system at the plaintiff s place of business in Manhattan, Kansas. Problems surfaced immediately and the computer never worked properly.
PLP initially sued Polaris for cancellation of the lease contract and damages. Polaris counterclaimed for the payments due on the lease. Plaintiff settled that action by paying $20,000 to Polaris in order to resolve its counterclaim. Plaintiff sought and was granted permission to amend its pleadings to bring an action directly against Impact, OSI, and Okidata, the manufacturer of a hard disc, one of the major component parts of the computer.
In 1984 we heard an interlocutory appeal by PLP and Okidata. We quote from the opinion for the statement of the issues and the resolution thereof:
“The first . . . issue concerns whether the district court erred in finding Professional Lens had a cause of action against Okidata. Stated more specifically, the question is whether Kansas permits a corporate ultimate purchaser, who has incurred only economic loss, as opposed to personal injury or property damage, to recover on theories of breach of implied warranty of fitness and merchantability, from a manufacturer with whom the ultimate purchaser was not in contractual privity.
“We conclude implied warranties of fitness and merchantability are not extended to a remote seller or manufacturer of an allegedly defective product, which is not inherently dangerous, for only economic loss suffered by a buyer who is not in contractual privity with the remote seller or manufacturer. Accordingly the district court erred in holding that Professional Lens had a cause of action against Okidata Corporation for economic loss based on breach of implied warranty.
“The second issue . . . [Are warranty and damage limitations contained in Okidata’s sale of the hard disc to Ohio Scientific binding upon Professional Lens, the ultimate purchaser?] ... is moot.
“The third issue is whether the district court erred in permitting Professional Lens to amend its pleadings after the expiration of the applicable statute of limitations and bring an action directly against third-party defendants Okidata Corporation and Ohio Scientific for breach of implied warranties.
“Here again, this court’s previous determination Professional Lens has no cause of action against Okidata renders this issue as it relates to Okidata moot. However, it would be inappropriate to move to the next issue without reference to the procedural problems that exist in this case. Only Okidata sought an interlocutory appeal on the first three issues raised in this case and the district court granted the right to Okidata alone to take this appeal on these issues. Ohio Scientific is an appellee herein and is not an opposing party to any position of appellant Okidata in this appeal. Notwithstanding these facts, Ohio Scientific wears the same shoes as does Okidata as to issues number one (implied warranty) and three (statute of limitations). Ohio Scientific has filed a brief herein which essentially is a ‘me too’ to Okidata’s brief. Despite the procedural problems in the way the matter comes before us, we conclude judicial economy and the best interests of the litigants would be better served by simply declaring the lack of privity between Professional Lens and Ohio Scientific defeats Professional Lens’ claims against Ohio Scientific for breach of implied warranties on the rationale set forth in issue number one herein. Therefore, the statute of limitations issue is also moot as to Ohio Scientific. [Emphasis supplied.]
“The final issue is the only issue raised by Professional Lens Plan, Inc., in its interlocutory appeal and is stated as follows: In light of the trial court’s ruling sustaining Impact Systems’ motion for summary judgment against Polaris Leasing in this case, does privity of contract exist between plaintiff and Impact Systems?
“. . . This is a matter which was not determined by the district court.
“We conclude this issue is not the proper subject of an interlocutory appeal and, accordingly, we have no jurisdiction to determine it. The interlocutory appeal of Professional Lens must be dismissed.” 234 Kan. at 745-57.
Our opinion was filed in the district court of Riley County on February 8, 1984. On May 4, the plaintiff filed an amended petition alleging that Impact was an agent of OSI. OSI responded by filing a motion for summary judgment together with a memorandum in support thereof. It contended that there were no facts before the court which supported plaintiff s claim that Impact was in fact an agent of OSI. Instead, it contended the facts clearly showed that Impact was simply a dealer, one who buys and sells, and that there was no agency relationship between OSI and Impact.
The trial court prepared a memorandum setting forth the facts and its ruling. The court carefully reviewed the depositions and other records before it, and indexed its findings of fact to those documents. Omitting the citations to the record, the trial court’s findings of fact and conclusions of law are as follows:
“FACTS
“(1) Impact Systems is a retailer of computer products and services for computers ranging from repair and installation to programming.
“(2) Impact Systems selected the computer package based upon the needs of the customer, Professional Lens Plan, and ordered equipment from various manufacturers to fill that order. The computer package was selected by Shellabarger, as a consultant for the plaintiff. Shellabarger did use an Ohio Scientific catalog.
“(3) Impact Systems, in dealing with Ohio Scientific, was not given any preferential treatment that would give the appearance of an agency relationship. Comens stated that as he was looking for the solution to the problem, he inquired about replacement of interface boards. Ohio Scientific agreed to sell him additional equipment. When the equipment which Impact Systems requested did not solve the problem, Impact Systems either did not ask for a refund, or if they asked for a refund of the equipment, the refund was denied. Shellabarger contacted Ohio Scientific from one of their large ads in the Micro Computer Media. Ohio Scientific referred Shellabarger to Impact Systems. When the equipment continued to fail to operate, Shellabarger called Ohio Scientific on two occasions. Ohio Scientific told Shellabarger to take up the problem with the dealer and not with them. On the second phone call by Shellabarger to Ohio Scientific, they again told him to work with Impact Systems to get the repairs made.
“(4) Impact Systems was authorized to sell Ohio Scientific’s system but so was anyone else who wanted to sell equipment. The plaintiff denies this allegation. The plaintiff contends that Ohio Scientific had a system of dealers that were obtained by payment of money by the prospective dealers.
“(5) The selection of Ohio Scientific’s equipment was made by Loren Shellabarger from forty to fifty vendors.
“(6) No oral or written communication between Ohio Scientific and the plaintiff Professional Lens Plan exists concerning the use to which Professional Lens Plan intended to put the computer. The plaintiff denies this contention referring to calls made by Shellabarger directly to Ohio Scientific.
“(7) The attached invoices, exhibits from Comens’ deposition, show no privity of contract between Professional Lens Plan and Ohio Scientific; contain no representations regarding a fiduciary relationship between Impact Systems and Ohio Scientific; and contain no representations as to the use that Professional Lens Plan intended to make of the equipment.
“(8) The computer was delivered to Professional Lens in August or September of 1979. It never fully functioned. Comens, on behalf of Impact Systems, talked to Ohio Scientific on quite a few occasions.
“WAS IMPACT SYSTEMS AN AGENT FOR OHIO SCIENTIFIC? DOES THE PLAINTIFF HAVE PRIVITY OF CONTRACT WITH OHIO SCIENTIFIC?
“The Supreme Court has ruled there is no privity of contract between Professional Lens Plan and Ohio Scientific because there is no contractual privity between these parties. The plaintiff is now alleging that it can directly sue Ohio Scientific because Impact Systems was an agent of Ohio Scientific and that the plaintiff now has privity of contract with Ohio Scientific. This is a new theory on behalf of the plaintiff and it has not been raised until this time. In this case, Gary Comens considered himself a dealer for Ohio Scientific. Webster’s Twentieth Century Dictionary defines a dealer as one who deals in anything; a trader; a trafficker; a shopkeeper; a broker; a merchant; and a dealer of drygoods. This Court concludes that the word dealer imparts no connotation of control, management or a fiduciary responsibility to account to someone else for its actions. Further, the Court concludes that an agency relationship can, indeed, be created by implication; however, the record is devoid of any facts which render the implication that Impact Systems was acting on behalf of Ohio Scientific. All of the invoices and paperwork in the transaction name Impact Systems as the seller of the various items of equipment to the plaintiff as set forth in the attached exhibits. The Kansas Supreme Court in this case on appeal, cites with approval the language used by Judge Saffels in Owens-Corning Fiberglas v. Sonic Dev. Corp., 546 F. Supp. 533 [D. Kan. 1982], in which the Court stated:
“ ‘The issue is whether or not privity of contract is a requirement in Kansas for a claim based on breach of implied warranty. We hold that because the plaintiff did not buy the air compressors directly from Quincy, but instead bought them from Sonic, an intermediary in the chain of distribution, there is no privity between plaintiff and Quincy for breach of implied warranty.’
“Here, simply put, Ohio Scientific sold a computer to Impact Systems and Impact Systems sold the computer to the plaintiff. Although the sale was, in fact, from Impact Systems to the plaintiff for purposes of tax benefits to the plaintiff and for other business considerations, Impact Systems purchased the computer from Ohio Scientific but sold it to . . . Polaris Leasing Corporation. Polaris then executed an agreement with Professional Lens whereby it would lease the equipment to Professional Lens.
“This court-is not persuaded by the plaintiffs argument that because the plaintiffs representative first saw the advertisement in Ohio Scientific’s catalog who referred the plaintiff to Impact Systems and another dealer, would indicate agency by implication. Other dealers may have been referred by Ohio Scientific upon request. This Court finds no evidence to indicate that Impact Systems had apparent or ostensible authority of agency on behalf of Ohio Scientific. This Court further finds nothing in the record to indicate that Ohio Scientific knowingly permitted Impact Systems to exercise authority or held out Impact Systems as possessing the authority to act as its agent.
“The Supreme Court has ruled that specific privity must exist in order for the plaintiff to pursue an action against a party and hypothetically, even if an agency was found to be implied in the relationship between Ohio Scientific and Impact Systems, the plaintiff must go further and show specific representations that pass from Ohio Scientific without alteration or variance through Impact Systems directly to the plaintiff. The facts do not suggest this to be so.
“The uncontroverted facts submitted by the plaintiff indicate that there were at least two dealers from which the plaintiff could choose. It is clear that Impact Systems was a dealer and was, in fact, the party who participated in the transaction with the plaintiff. The computer system was purchased by Impact Systems for resale. The facts do not support the proposition that Impact Systems was working as an agent of Ohio Scientific. Like any retail merchant, Impact Systems was working for its own benefit, and was working to make a profit which would be the difference between the wholesale price they paid for the product and the retail purchase price which they sold it to the plaintiff for. There is no evidence that the plaintiff received any direct warranties from Ohio Scientific in this transaction.
“WHEREFORE, THE COURT CONCLUDES AS A MATTER OF LAW that Impact Systems was not an agent for Ohio Scientific.”
The court then sustained OSTs motion for summary judgment against the plaintiff, and plaintiffs appeal followed.
In its findings of fact the court observed in paragraph No. 4 that plaintiff denies the claim that not only Impact Systems but anyone else who wanted to sell OSI equipment could do so, and that plaintiff contends that OSI had a system of dealers who could sell OSI equipment by payment of money by the dealers. We have carefully examined the record before us and find no evidence to substantiate plaintiff s position in this regard. There is no evidence that Impact paid OSI any money to become a dealer; Impact simply paid for the equipment it ordered. Im pact’s president, Gary Comens, testified, “It is wide open. Anybody can sell OSI who wants to.”
We have stated many times the standards governing the entry of summary judgment. In Barnhart v. McKinney, 235 Kan. 511, 516, 682 P.2d 112 (1984), we said:
“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. McAlister v. Atlantic Richfield Co., 233 Kan. 252, Syl. ¶ 1, 662 P.2d 1203 (1983). When summary judgment is challenged on appeal, an appellate court must read the record in the light most favorable to the party who defended against the motion for summary judgment. McAlister, 233 Kan. 252, Syl. ¶ 4.”
In Peoples Nat’l Bank & Trust v. Excel Corp., 236 Kan. 687, 695, 695 P.2d 444 (1985), we said:
“Summary judgment is proper where the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”
Summary judgment is particularly appropriate where the facts are not disputed and the only questions presented are questions of law. Farmers State Bank & Trust Co. of Hays v. City of Yates Center, 229 Kan. 330, 341, 624 P.2d 971 (1981). Here, there is really no dispute as to the facts. Plaintiff contends that those facts establish an implied agency; the trial court found that they do not. The determination of what constitutes agency and whether there is any competent evidence reasonably tending to prove the existence of agency is a question of law. Henderson v. Hassur, 225 Kan. 678, 682, 594 P.2d 650 (1979).
Both parties here agree on the definition of agency as given in Walker v. Eckhardt, 122 Kan. 453, 456, 251 Pac. 1093 (1927). An agency has been defined as a contract, either express or implied, by which one of the parties confides to the other the management of some business to be transacted in his name, or on his account, and by which that other assumes to do the business and to render an account of it.
In Shawnee State Bank v. North Olathe Industrial Park, Inc., 228 Kan. 231, 236-37, 613 P.2d 1342 (1980), we said:
“The law recognizes two distinct types of agencies, one actual and the other ostensible or apparent. The authority of an actual agent may be either express or implied. [Citation omitted.]
“It is an express agency if the principal has delegated authority to the agent by words which expressly authorize the agent to do a delegable act. It is an implied agency if it appears from the statements and conduct of the parties and other relevant circumstances that the intention was to clothe the agent with such an appearance of authority that when the agency was exercised it would normally and naturally lead others to rely on the person’s acts as being authorized by the principal. An ostensible or apparent agency may exist if a principal has intentionally or by want of ordinary care induced and permitted third persons to believe a person is his or her agent even though no authority, either express or implied, has been actually conferred upon the agent.”
Plaintiff contends that Impact was either an implied or an ostensible agent of OSI. There is no evidence and no claim that any express agency agreement existed between Impact and OSI. Plaintiff simply argues that certain conduct by Ohio led it to believe that there was an agency relationship. It argues that OSI, by referring Shellabarger to two local dealers, one of whom was Impact, led him and thus his client, the plaintiff, to believe that Impact was an agent for OSI. The person at OSI with whom Shellabarger spoke referred to Impact as a dealer in all three conversations. As the trial court noted, the word “dealer” is widely used and well understood. It means a person who buys and sells. In 25A C.J.S., Dealer, p. 533, we find the following:
“The term has a well-defined and commonly understood meaning, and implies buying to hold for sale.
“A dealer is one who deals; one who does business; and in the common acceptation, and, therefore in the legal meaning of the word, a ‘dealer’ is not one who buys to keep or makes to sell, but one who buys to sell again. Thus a ‘dealer’ is one who buys and sells; one who buys something in order to sell it; one who buys and sells goods and commodities; one who buys the product in quantities and parcels it out by sale in lesser amounts; one who buys to sell as an avocation or business; a person who buys and sells for the purpose of gain and profit, or who buys to sell to others at a profit.”
Black’s Law Dictionary 487 (4th ed. rev. 1968), defines a dealer: “In the popular sense, one who buys to sell, — not one who buys to keep, or makes to sell.” There is no representation that Impact was an exclusive dealer, since no such representation was made to Shellabarger and since Shellabarger knew that Impact was ordering part of the system from one or more other manufacturers. Comens was able to buy and sell OSI computers, but he testified that anyone who wanted to could do so. This testimony is not controverted in the record. The fact that a retail commercial enterprise offers for sale a particular product does not indicate that the retailer is the agent of the manufacturer. Similarly, the mere fact that a manufacturer informs a proposed customer that a particular item may be purchased through several retailers in a particular location does not make the retailers agents of the manufacturer. We have carefully reviewed the record before us and conclude that the trial court was correct in entering summary judgment. We find no evidence to indicate either an implied or an ostensible agency.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Holmes, J.:
This is an appeal from a Pottawatomie District Court judgment dismissing a special prosecutor’s information that charged David L. Mills with enticement of a child in violation of K.S.A. 21-3509. The district court, in a pretrial ruling upon a motion filed by Mills, dismissed the charge, finding that the action was barred by the statute of limitations, K.S.A. 21-3106.
The facts in the case are not disputed. In July of 1979, the defendant, David L. Mills, stopped at the home of his friend, Jerry Lynn Medley. The victim, a 10-year-old boy, was staying with Medley. The three persons got into Mills’ pickup truck and drove to a secluded area where both men began fondling the genital area of the minor victim. Shortly thereafter the three returned to Medley’s home. There is no showing that Mills ever had any further contact with the boy although Medley evidently continued his relationship with the victim.
The defendant was originally charged on August 16, 1984, with taking indecent liberties with a child (K.S.A. 1984 Supp. 21-3503). An amended complaint filed October 12, 1984, added the charge of enticement of a child (K.S.A. 21-3509), and on this same date the indecent liberties charge was dismissed. During the hearing upon defendant’s motion to dismiss, the transcript of the preliminary hearing was submitted to the court. The victim testified at the preliminary hearing that he had not reported the incident earlier because he feared being called homosexual. Further testimony revealed that Medley had told the victim on several occasions that people might think he was homosexual if he divulged the occurrences. It was the State’s theory that Medley’s statements constituted threats leading to concealment of the crime, and that this concealment should also be attributed to Mills.
The sole issue raised on appeal is whether the statute of limitations was tolled by the concealment of the crime through the unsolicited acts and statements of a third party. In considering the issue presented we will assume, arguendo, that the acts of the third party, Medley, amounted to concealment.
At common law there was no time limitation for prosecuting a criminal offense. 21 Am. Jur. 2d, Criminal Law § 223. In Kansas this common-law rule is altered by the terms of K.S.A. 21-3106, which provides in pertinent part:
“21-3106. Time limitations. (1) A prosecution for murder may be commenced at any time.
“(2) Except as otherwise provided in this section, a prosecution for all other crimes must be commenced within two (2) years after it is committed.
“(3) The period within which a prosecution must be commenced shall not include any period in which:
“(c) The fact of the crime is concealed.”
Statutes of limitation are favored by the law and are to be construed liberally in favor of the accused and against the prosecution and exceptions to the statute are to be construed narrowly, or strictly, against the State. 22 C.J.S., Criminal Law § 224.
The statute has been considered and construed upon a number of occasions. State v. Gainer, 227 Kan. 670, 608 P.2d 968 (1980); State v. Watson, 145 Kan. 792, 67 P.2d 515 (1937), and cases cited therein. In Watson, a case involving embezzlement, we held:
“The concealment of the fact of a crime which suspends the operation of the statute of limitations must be the result of positive acts done by the accused and calculated to prevent the discovery that the offense has been committed. Mere silence, inaction or nondisclosure is not concealment.” Syl. ¶ 1.
Gainer involved the theft of guns which had been stolen by the defendant from a neighbor’s house. The defendant concealed the weapons in his own house for several months before using them as his own. The State contended this hiding of the stolen property constituted concealment within K.S.A. 21-3106(3)(c). We rejected the argument and held:
“To constitute concealment of the fact of the crime of theft sufficient to toll the statute of limitations there must be a positive act done by or on behalf of the accused calculated to prevent discovery of the theft by those owning or having possession of the property before the theft. Mere silence, inaction, nondisclosure, or disposal of stolen property is not concealment of the fact of the crime as contemplated in K.S.A. 21-3106(3)(c).” 227 Kan. 670, Syl. ¶ 5. (Emphasis added.)
The State contends that the phrase “or on behalf of’ expands the rule of Watson and that in the instant case the subsequent statements of Medley amounted to a concealment “on behalf of’ Mills. We think not. Assuming that action by a third party could constitute concealment, there must be some positive action by the accused along with a direct connection between the accused and the third party which results in the concealment. There is no showing here that Mills sought to have Medley make the statements to the victim, or that the statements were made by Medley on behalf of Mills.
The State correctly notes that child sexual abuse is a very delicate area of the law and asks that we apply a different rule to crimes against persons than that adopted for crimes involving property. It is not the province of the court to fashion exceptions to the statute of limitations as that task is left to the legislature. Statutes of limitation are measures of public policy, “and are entirely subject to the will of the legislature.” 22 C.J.S., Criminal Law § 224, p. 577.
The district court was correct in dismissing the action. The appeal of the State is denied and the judgment affirmed. | [
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The opinion of the court was delivered by
Holmes, J.:
Leslie Dewayne Yarrington appeals from his conviction by a jury of one count of first-degree murder (K.S.A.. 21-3401). He asserts several points on appeal, none of which constitutes reversible error.
On the afternoon of January 14, 1984, the body of Nicki Merrill, a resident of Parsons, Kansas, was discovered lying near his car in a wheat field approximately four miles southeast of Coffeyville, Kansas. He died from a single .22 caliber bullet wound to the right temple. A gun which could have fired the fatal shot was found near the victim’s hand. Merrill had last been seen alive around 7:00 p.m. on January 13, 1984, as he left work in Parsons, Kansas.
Investigation of the area where the car and body were found revealed no evidence that any other person or automobile had been at the scene. The victim’s car and its contents were described as extremely neat with no signs of a scuffle or altercation. No blood was found in or on the car. Due to the extreme cold, the time of death was difficult to establish and the coroner could only state that death could have occurred at any time from one-half hour to a day before the body was found. Dr. Uy, the pathologist who performed the autopsy, was of the opinion the shot was fired at a distance of two to six inches from the head. No other abrasions or contusions were found on the body. Tests of the victim’s hands to determine whether he had fired a gun recently were inconclusive. Neither the coroner nor the pathologist could determine whether the death was a suicide or a homicide.
The victim’s family was convinced the death was not a suicide. Merrill did not own a handgun, had not been depressed, had no close friends in Coffeyville, had no reason to be in Coffeyville and the family knew of no reason why Nicki would commit suicide. The victim’s wife, Crissy, had formerly dated the defendant and was known to have been seeing him prior to the death. The victim’s family furnished the defendant’s name to law enforcement authorities as a possible suspect. The family hired a private investigator who determined that the weapon found at the scene was sold to the defendant in 1981 by one Chuck Farrow. At trial, Farrow identified the gun as the one he sold to the defendant. Less than two weeks after the death, Crissy Merrill and the defendant moved to Broken Bow, Oklahoma, where they openly lived together. In April, 1984, they split up and Crissy returned to Coffeyville. The defendant’s father testified that Crissy and his son had visited him in Coffeyville during the fall of 1983 at a time when she was married to the victim. He also testified that in a telephone conversation with his son on April 9, 1984, the defendant was extremely upset and emotional, and the witness understood the defendant to say he had killed Nicki Merrill. The evidence at trial also disclosed that the defendant utilized a pay telephone close to his father’s home in Coffeyville to make contact with Crissy Merrill. The Merrill telephone bills revealed a call from the Merrill home to this pay station between midnight and 1:00 a.m., January 14, 1984, and a collect call from the same pay phone to the Merrill residence at 7:07 p.m., January 14, 1984. Defendant’s father testified that shortly after his son arrived around 11:00 p.m. on January 13, 1984, he left to go to the pay telephone stating he was going to call Crissy. During the trial, in a proceeding outside the presence of the jury, Crissy Merrill refused to testify, invoking her Fifth Amendment rights. Other facts will be stated as they pertain to the various issues.
The first issue raised on appeal is whether the trial court erred in failing to instruct the jury on the lesser included offenses of voluntary and involuntary manslaughter. The jury was instructed on both first- and second-degree murder. Yarrington’s defense was that he had nothing to do with the death, was not present, did not know the victim and had no reason to kill him. The district court’s duty under K.S.A. 1984 Supp. 21-3107(3) to instruct on lesser offenses only arises when the evidence at trial would support a conviction of the lesser offense. State v. Pearson, 234 Kan. 906, 918, 678 P.2d 605 (1984). Here, there was no evidence which would support instructions on manslaughter and involuntary manslaughter and the court was correct in not giving such instructions.
The next two issues relate to several photographic slides of the victim’s body shown during the trial. It appears that several slides were shown during the trial without the judge having taken the precaution of seeing them in advance of trial. After the slides had been shown and were offered in evidence, the court allowed their admission with the exception of two, which were found to be repetitious, and one, which was blurred and unclear. The first objection is that the court erred in allowing the slides that were not subsequently admitted into evidence to be shown to the jury. The other issue is whether the trial court erred by admitting allegedly gruesome slides into evidence.
When pictures are to be offered through the utilization of slides and a projector, the court should view the same outside the presence of the jury, unless their admissibility has been agreed to, in order to avoid showing to the jury what may be determined to be inadmissible evidence. The admissibility of photographic evidence lies within the discretion of the trial court, and its decision to admit such photographs must be accepted on appellate review absent a showing of an abuse of discretion. State v. Kendig, 233 Kan. 890, 893, 666 P.2d 684 (1983). Further, unless the jury’s viewing three slides, two repetitious and one blurred, is shown to have prejudicially affected the substantial rights of Yarrington, any error will not require reversal. State v. Mitchell, 234 Kan. 185, 196, 672 P.2d 1 (1983). After examining the slides in question, we conclude no reversible error occurred in allowing the jury to view the three slides which were not admitted in evidence. Two merely duplicated slides that were admitted, and the third was blurred and not a good image of what it portrayed. State v. McCorgary, 224 Kan. 677, 585 P.2d 1024 (1978). No prejudice has been shown which would justify reversal.
Turning to the defendant’s contention that the slides were unduly repetitious, gruesome, and added little to the State’s case, the general rule is that photographs that accurately portray what they purport to show are admissible in evidence. State v. Murdock, 236 Kan. 146, 152, 689 P.2d 814 (1984). In State v. Pearson, 234 Kan. 906, the court stated:
“The law is well settled in this state that ip a crime of violence which results in death, photographs which serve to illustrate the nature and extent of the wounds inflicted are admissible when they corroborate the testimony of witnesses or are relevant to the testimony of a pathologist as to the cause of death, even though they may appear gruesome.” p. 918.
The slides Yarrington complains of here, while unpleasant, depict the autopsy and were used by the pathologist and investigators in their testimony. The slides appear to accurately depict the procedure used to determine the angle of entry of the bullet and the extent of the wounds inflicted. The slides were not unduly repetitious or gruesome and were properly admitted.
The next issue raised is whether the court erred in admitting the .22 caliber revolver in evidence. Due to the condition of the bullet removed from the victim’s head, it was impossible to determine with certainty whether the fatal shot came from the gun found at the scene. Defendant appears to argue that the link of the weapon to him in 1981 is too remote and that the gun may not have caused the death. He also contends that the inability to determine from lead residue tests of the hands that the victim had not fired the weapon somehow links the gun to the victim. The mere inability to ascertain with certainty that the victim did not fire the weapon does not imply that he did fire it. None of the arguments have merit. The gun was obviously relevant evidence (K.S.A. 60-407[f|) and was readily admissible. See State v. Reynolds, 230 Kan. 532, 639 P.2d 461 (1982).
Next, the defendant asserts error in the admission of certain hearsay testimony. During the direct examination of the under-sheriff, the prosecution, in questioning the witness, received a brief answer containing a hearsay statement attributed to the victim’s brother. No contemporaneous objection was made to the testimony as required by K.S.A. 60-404. During cross-examination defense counsel, evidently in an attempt to avoid the dictates of the statute, led the witness through the same testimony again and then objected to it and asked that all the testimony on the issue be stricken. No authority is cited by defendant for the action of eliciting objectionable testimony a second time on cross-examination in order to preserve an otherwise untimely objection. This issue needs no further consideration.
The defendant also complains that letters from Crissy Merrill to him were improperly admitted because they are hearsay and denied the defendant his right of confrontation.
K.S.A. 60-460 defines hearsay evidence and makes it inadmissible subject to exceptions found in that section. The statute defines hearsay as “[e]vidence of a statement which is made other than by a witness while testifying at the hearing offered to prove the truth of the matter stated.” In the present case, the letters were discovered on the defendant’s person at the time of his arrest. The fact that the defendant-received and had in his possession letters sent by the victim’s wife was a fact of independent legal significance tending to link Yarrington and the victim’s wife. While the letters would be hearsay if used to prove the facts contained therein, in the present situation they were not offered to prove the truth of their contents and thereforfe, if relevant, were not barred as hearsay. The letters were obviously relevant and no error is shown.
Yarrington contends the trial court erred by instructing the jury on first-degree murder because no evidence was presented to establish premeditation. K.S.A. 21-3401 defines first-degree murder as “. . . the killing of a human being committed maliciously, willfully, deliberately and with premeditation . . . .” Premeditation may be established by circumstantial evidence, and may be inferred from the established circumstances of the case provided the inference is reasonable. The jury has the right to make the inference. State v. Hill, 233 Kan. 648, 652, 664 P.2d 840 (1983). Considering that defendant’s father testified he understood defendant to say he killed Merrill; that the evidence indicated an ongoing relationship between the defendant and the victim’s wife; that the defendant’s gun was found with the body and all of the other evidence which need not be detailed here, it is clear that the inference of premeditation as found by the jury was reasonable and supported by the evidence.
The final issue raised by the defendant is whether the State proved the corpus delicti for homicide. The term “corpus delicti” means the body of the offense — the substance of the crime. As applied in homicide cases it has at least two component elements: (1) the fact of death, and (2) the criminal agency of another person as the cause thereof. 40 Am. Jur. 2d, Homicide § 4, p. 297; State v. Doyle, 201 Kan. 469, Syl. ¶ 1, 441 P.2d 846 (1968).
The first element was met in the present case by the discovery of Merrill’s body. The remaining question is whether the defendant’s confession along with the other circumstantial evidence in the case establishes the second element, the criminal agency of another. “It appears that while the corpus delicti cannot be established by the extrajudicial confession of the defendant unsupported by any other evidence, it may be established by such a confession corroborated by other facts and circumstances.” 40 Am. Jur. 2d, Homicide § 285, p. 551. In Doyle, 201 Kan. at 469, the court stated that the corpus delicti may be proved in whole or in part by direct testimony or by indirect and circumstantial evidence. Without repeating the facts already set forth, we have no hesitancy in finding that the State adequately proved the corpus delicti in this case.
No reversible error having been shown, the judgment is affirmed. | [
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The opinion of the court was delivered by
Miller, J.:
The defendant, Everett L. McLaughlin, was convicted of driving an overweight truck in violation of Overland Park municipal ordinances which incorporate by reference K.S.A. 8-1908 and 8-1909. Specifically, he was convicted of driving a truck weighing in excess of the maximum on the rear axles and in excess of the extreme axle weight. He was originally convicted in the Overland Park municipal court. He appealed to the District Court of Johnson County, where the charges were tried de novo and he was again convicted. The Court of Appeals affirmed. City of Overland Park v. McLaughlin, 10 Kan. App. 2d 537, 704 P. 2d 997 (1985). We granted review on November 7, 1985. Defendant challenges the ordinances on constitutional grounds. We affirm the Court of Appeals, and we agree with most of its opinion, but we base our determination of the constitutionality of the ordinances and statutes upon a slightly different rationale than previously expressed.
The facts are fully stated in the opinion of the Court of Appeals and we will not repeat them here. We wish to clarify, however, certain terminology. The defendant was driving a concrete truck. This consists of a straight truck with a single chassis, having one axle at the front upon which the front single wheels are located and having two rear axles, each equipped with dual wheels. Thus, there were a total of eight wheels at the rear of the truck and two at the front, connected by the frame or chassis. On the rear of the truck was mounted a large cylindrical cement mixer in which the load was carried and which mixed the load while the vehicle was en route from plant to job site. The straight truck here involved is to be distinguished from units described as “truck tractors and dump semitrailers” or “truck trailer combinations.” A “truck tractor and dump semitrailer” consists of a truck tractor having a single axle at the front and usually two axles at the rear, but having no bed for carrying loads, and a semitrailer, having no motive power of its own but having a bed in or on which the load may be carried. A dump semitrailer is a semitrailer which is equipped with a hydraulic assembly at the front by which the front of the trailer body may be lifted in order that the load will slide out and be discharged at the rear. A semitrailer has no front wheels for highway use, but the front of the semitrailer extends over and rests upon the rear of a truck tractor when the trailer is being used.
A “truck trailer combination” consists of a straight truck with a bed of its own, which truck is connected to and pulls a trailer which customarily has axles at both the front and rear. It is important to note that plaintiff s vehicle was a straight truck, not a truck tractor and dump semitrailer and not a truck trailer combination.
The Overland Park municipal ordinance under which the defendant was charged incorporated by reference the provisions of K.S.A. 8-1908, which prescribes the gross weight which may be carried upon any one axle of a vehicle, and K.S.A. 8-1909, which in subsection (a)(2) prescribes the maximum weight of a vehicle and its load, the load limit being that shown in a table which is a part of the statute and which maximum gradually increases in proportion to the increase of the distance between the extreme axles of the vehicle. Exceptions to the limits fixed in the table are granted by K.S.A. 8-1909(a)(3), which reads:
“(3) The above table shall not apply to truck tractor and dump semitrailer or truck trailer combination when such are used as a combination unit exclusively for the transportation of sand, salt for highway maintenance operations, gravel, slag stone, limestone, crushed stone, cinders, coal, blacktop, dirt or fill material, when such vehicles are used for transportation to a construction site, highway maintenance or construction project or other storage facility. As used in this subpart (3), the term ‘dump semitrailer’ means any semitrailer designed in such a way as to divest itself of the load carried thereon.”
Defendant first contends that subparagraph (a)(3) of the statute and ordinance violates his due process and equal protection rights because his concrete truck is not included in the category of vehicles not subject to overall weight limitations, as noted by the Court of Appeals. He divides his argument into three parts:
“First, defendant argues there is no difference between concrete trucks and truck tractors, dump semitrailers or truck-trailer combinations. Defendant states that his truck, like the others, is used in the transportation of construction materials and thus should be treated like the others.
“Defendant’s second contention is that by excluding truck tractors, dump semitrailers and truck-trailer combinations, the state is giving a commercial advantage to the asphalt industry. Defendant states that the weight limitations imposed by the statute force him to make more trips to do the same job as trucks carrying asphalt, which can carry heavier loads. Defendant claims his cost is thus increased and the asphalt industry has a competitive edge.
“Finally defendant argues that the legislative purpose ofK.S.A. 8-1909 is to promote construction. Defendant contends the concrete industry is as interested in construction as the asphalt and other industries. He contends that if the legislature intended to promote construction, cement trucks should be freed from any weight restrictions just as are other trucks hauling construction materials.” 10 Kan. App. 2d at 539-40.
The City contends that the legitimate state interest present in the statute is that of safety. It introduced the testimony of a specialist with the Kansas Department of Transportation in support of that argument. The district court found that the statute was constitutional and not discriminatory “due to its purpose of promoting public safety.” The statute does not exempt straight trucks as such. Instead, it exempts truck tractor and dump semitrailer and truck trailer combinations. Straight trucks, used by themselves, are not granted any exemption regardless of the cargoes they may be carrying. A trailer is a unit without motive power, which is attached to another vehicle by means of a hitch. A trailer does not have the stability of a straight truck, since it does not have the weight of an engine and cab bearing upon a single chassis at the front. Thus, as the witness explained, when the body of a trailer is elevated to discharge the load, there is a danger that under certain circumstances the trailer may tip over. As the Court of Appeals pointed out, the witness testified that for safety purposes it is necessary that dump trailers and dump semitrailers be allowed to carry heavier loads in order to promote stability and prevent tipping over.
In State v. Shouse, 8 Kan. App. 2d 483, 660 P. 2d 970 (1983), the same subsection of K.S.A. 8-1909 was challenged on equal protection grounds. The defendant in that case was hauling logs. It is not clear from the opinion whether his vehicle was a straight truck or a combination involving a trailer or a semitrailer, nor is it clear whether the vehicle discharged its load by dumping. Shouse challenged the constitutionality of the statute on the basis that the statute exempts truck tractor and dump semitrailer or truck trailer combinations when they are transporting certain materials, but not when they are hauling logs. The Shouse opinion construes the statute to exempt only those vehicles hauling the designated materials when intended for highway purposes. In other words, under the Shouse opinion, a truck tractor and dump semitrailer hauling sand to a highway construction site would be exempt but the same vehicle would not be exempt if it was hauling the same load of sand to any other construction project. We disagree with the rationale expressed in Shouse, and find that the statute exempts the designated vehicles when hauling the designated cargo, regardless of destination. It appears to us rational to exempt dump semitrailers and truck trailer combinations when those vehicles are carrying loose fill materials, such as those described in the statute, when lighter loads might cause the trailer or semitrailer to overturn. Solids such as lumber, logs, and steel, and liquids such as water, road oil, and concrete are not included. Those items, however, are perhaps not customarily hauled in dump semitrailers. The Court of Appeals observed in its opinion in this case:
“[A]s the statute possesses a presumption of constitutionality, as the burden of showing invalidity is on defendant, and as it cannot be said the classifications used are ‘wholly irrelevant’ to the furtherance of safety, it appears a legitimate state interest exists. As such, it cannot be said the statute is unconstitutional on equal protection grounds. Therefore, if K.S.A. 8-1909 is not unconstitutional, the Overland Park Municipal Ordinance incorporating the statute likewise does not violate equal protection of the law.” (Emphasis supplied.) 10 Kan. App. 2d at 542.
As to defendant’s first argument, we disagree with his contention. There is a difference between straight trucks, such as the defendant was driving, and truck tractor and dump semitrailer combinations, and truck trailer combinations. For the safety reasons expressed above, the statute appears to further a legitimate state interest, that of safety.
As to his second and third arguments, that the statute gives a commercial advantage to the asphalt industry, and that trucks hauling concrete should be freed from the weight restrictions, we are not persuaded. Defendant’s arguments should be made to the legislature, not to the courts. The statute exempts certain types of vehicles: defendant was not driving that type of vehicle. If he had been carrying sand or asphalt, his truck would still not have come under the exemption. We find no legislative intent to give preference to one industry over another.
We find a rational basis for the exceptions contained within the statute, and conclude that neither the Overland Park ordinances nor the statute violate the due process or equal protection clauses of the U. S. Constitution.
All other issues have been appropriately discussed and properly decided by the Court of Appeals and we need not repeat them here.
The judgments of the trial court and the Court of Appeals are affirmed. | [
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The opinion of the court was delivered by
McFarland, J.:
This appeal arises out of a workers’ compensation claim made by Dean O. Houston against his employer, the Kansas Highway Patrol. The award of the administrative law judge was upheld by the Workers’ Compensation Director. On appeal the district court affirmed in part, reversed in part, and remanded in part. The matter is before us on appeal therefrom by the claimant.
The factual background is not in serious dispute. Claimant has been a Kansas highway patrolman since 1957. At the time he was injured, claimant was a sergeant in the patrol’s traffic safety and training division. The incident giving rise to the claim occurred in the following manner. On May 6, 1979 (place and time not provided), claimant was standing by the right front fender of his patrol car writing a speeding ticket. While he was so occupied, the rear of his patrol car was struck by another vehicle. The impact threw claimant over his patrol vehicle and he landed on his right side. Claimant was taken by ambulance to the emergency room of Stormont-Vail Hospital in Topeka. He was examined by Dr. Sutton, an orthopedic surgeon, given some medication and sent home.
In the line of duty, claimant had, on two previous occasions, received injuries from motor vehicle accidents. The 1964 injuries resulted in spinal fusion surgery being performed. The 1972 injuries included multiple fractures to the right arm and a fractured cheekbone. In 1977, claimant’s right arm was again injured in an altercation with some demonstrators.
Claimant has been a patient of Dr. R. L. Wilson, a chiropractor, since 1976. On May 16, 1979, ten days after the collision involved herein, claimant was seen by Dr. Wilson (last prior contact had been approximately one year earlier). Claimant was having pain in the pelvic area, left leg, neck and spine. Dr. Wilson started treatment of the multiple symptoms. In November, 1979, Dr. Wilson referred claimant to Dr. Joseph Shaw, an orthopedic surgeon, as the chiropractor was not satisfied with the results obtained by his treatment of the lumbar pain. Dr. Shaw surgically removed a cold abscess in the dura of the L 4-5 vertebrae. Claimant’s symptoms improved, but he still experi enced pain. Additional facts will be stated as needed for discussion of particular issues.
For his first issue claimant contends the district court erred, as a matter of law, in finding claimant had only a 25% permanent partial disability.
The applicable standard of appellate review was stated in Dieter v. Lawrence Paper Co., 237 Kan. 139, 697 P.2d 1300 (1985), as follows:
“This court has held many times that if, when viewed in the light most favorable to the party prevailing below, there is substantial evidence to support the district court’s factual findings, this Court is bound by those findings and has no power to weigh the evidence or reverse the judgment of the trial court. Although this Court may feel the weight of the evidence as a whole is against the findings of fact made by the district court, it may not disturb those findings if they are supported by substantial competent evidence.” 237 Kan. at 145.
The rules for determining permanent partial disability were stated in Ploutz v. Ell-Kan Co., 234 Kan. 953, 676 P.2d 753 (1984), as follows:
“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 would be 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’ compensátion 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?” Syl. ¶¶ 3, 4, 5.
Claimant contends his ability to engage in work of the same type and character has been reduced “at least 50%.” Claimant testified he felt he could no longer take part in manhunt activities or handle himself well in physical encounters with law violators. There was medical testimony claimant should not drive for more than an hour or so without stopping and walking around for a short time, and that he would have difficulty with stooping, lifting and walking long distances on uneven terrain. Claimant’s supervisor testified claimant could no longer participate in self-defense training, engage in manhunt activities or pursuit driving. These activities, in the supervisor’s estimation, amounted to 5 - 8% of a patrol sergeant’s duties.
We conclude the 25% permanent partial disability determina tion of the trial court is supported by substantial evidence and, accordingly, cannot be disturbed. The administrative law judge and the Workers’ Compensation Director had likewise found claimant had suffered a 25% permanent partial disability.
For his second issue claimant contends the district court misconstrued and misapplied K.S.A. 44-504, the workers’ compensation subrogation statute.
K.S.A. 44-504 provides:
“(a) When the injury or death for which compensation is payable under the workmen’s compensation act was caused under circumstances creating a legal liability against some person other than the employer or any person in the same employ to pay damages, the injured workman, his dependents or personal representatives shall have the right to take compensation under the workmen’s compensation act and pursue his or their remedy by proper action in a court of competent jurisdiction against such other person.
“(b) In the event of recbvery from such other person by the injured workman or the dependents or personal representatives of a deceased employee by judgment, settlement or otherwise, the employer shall be subrogated to the extent of the compensation and medical aid provided by him to the date of such recovery and shall have a lien therefor against such recovery and the employer may intervene in any action to protect and enforce such lien . . . (Emphasis supplied.)
Claimant, without counsel, entered into a settlement with the motorist who had struck his vehicle. Under the settlement, claimant received a lump sum of $40,000. The settlement did not specify the particular elements of damage included therein.
Without burdening this opinion with the components of the award, as they are not germane to this issue, the bottom line is that the total award and the settlement, essentially, cancel each other out. Claimant contends that he should be permitted to take certain personal losses not compensable under workers’ compensation off the top of the settlement, leaving the balance subject to subrogation. These items are losses of sick pay, of certain holiday pay, and of personal property, all attributable to the collision. The total of these items of noncompensable loss is $2,273.62.
Claimant correctly points out that when a workers’ compensation statute is subject to more than one interpretation, it must be construed in favor of the worker if such construction is compatible with legislative intent (Nordstrom v. City of Topeka, 228 Kan. 336, 613 P.2d 1371 [1980]). The applicable language in K.S.A. 44-504 is clear and unambiguous — and not capable of two interpretations. The statute unequivocally states “in the event of recovery from such other person . . . by . . . settlement . . . the employer shall be subrogated to the extent of the compensation and medical aid . . . These circumstances are present and the employer has been granted subrogation rights for the amount of the award. Had the settlement documents clearly stated a certain amount was specifically for these personal noncompensable losses and had such amount been supportable in fact (as opposed to an effort to circumvent the operation of the statute), a much stronger argument in support of claimant’s position could have been made. Such is not the situation before us. We conclude the trial court did not err in denying claimant the right to take his claimed personal losses off the top of the settlement.
For his third issue claimant contends the trial court erred in remanding part of the case to the administrative judge for clarification.
The trial court was concerned about whether certain medical expenses (totalling $544.86) which the administrative law judge held were compensable under the Act were intended to be subject to the employer’s right of subrogation. As a part of its decision herein, the trial court ordered part of the case remanded for clarification.
The parties agree that the trial court erred in remanding part of the case for clarification. This position is substantiated both by the statute and the case law.
The jurisdiction of the district court on appeal is set out in K.S.A. 44-556(b), which states:
“On any such appeal the district court shall have jurisdiction to grant or refuse compensation, or to increase or diminish any award of the director as justice may require.”
Thus, the explicit language of the statute authorizing appeals does not allow for remanding on its face, and the case law interprets it as not to allow remanding. In Kuhn v. Grant County, 201 Kan. 163, 167, 439 P.2d 155 (1968), the court said:
“We think by now it should be generally understood that on an appeal from the director’s award in a compensation case, the district court is without authority to remand the proceedings to the director for the hearing of further evidence, or for taking additional action.”
And in Fleming v. National Cash Register Co., 188 Kan. 571, 574, 363 P.2d 432 (1961), the court stated:
“It is the settled rule in this jurisdiction that under the provisions of the workmen’s compensation act the district court has no authority to remand a case to the commissioner for further proceedings after an award has once been made. It is within the province of the district court to review a case upon receipt of a transcript from the compensation commissioner and to grant or refuse compensation, or to modify the award in accordance with its determination of the questions of fact and law.”
Further cases making this same point are Willis v. Skelly Oil Co., 135 Kan. 543, 544, 11 P.2d 980 (1932); and Fougnie v. Wilbert & Schreeb Coal Co., 130 Kan. 410, 286 Pac. 396 (1930).
Clearly, the trial court lacked authority for the remand ordered herein.
The final two issues pertain to the services of Dr. Wilson, the chiropractor.
The first of these two points is whether the proper allowance to Wilson as an unauthorized physician under K.S.A. 44-510(c) was $350.00, as held by the trial court, or $150.00, as held by the administrative law judge. It is uncontroverted that the form of the statute, in effect at the time, permitted a maximum of $150.00 for the services of an unauthorized physician. Accordingly, the allowance of $350.00 by the trial court was erroneous (the employer had previously paid the correct $150.00 figure for such services, and the same was recognized in the award of the administrative law judge).
The second matter relating to Dr. Wilson is, from the amount of space devoted to it in the briefs, of great significance to the parties. It is difficult, however, to understand why it occupied such a position of importance and why it is being fought on the particular terrain selected. It concerns Dr. Wilson’s status as an authorized physician under K.S.A. 44-510(c). There is no claim that the fact Dr. Wilson is a chiropractor alters the effect of the statute.
To place the issue in perspective, K.S.A. 1978 Supp. 44-510 needs to be set forth as follows:
“Medical compensation; powers of director. Except as otherwise provided in this act, medical compensation under the workmen’s compensation act shall be as follows: (a) It shall be the duty of the employer to provide the services of a physician, and such medical, surgical and hospital treatment, including nursing, medicines, medical and surgical supplies, ambulance, crutches, and apparatus, and transportation to and from the home of the injured workman to a place outside the community in which he or she resides as may be reasonably necessary to cure and relieve the workman from the effects of the injury. All fees and charges under this section shall be fair and reasonable, and shall be subject to regulations by the director, and shall be limited to such as are fair and reasonable. The director shall have jurisdiction to hear and determine all disputes as to such charges.
“(b) Any physician, nurse, medical supply establishment, surgical supply establishment, ambulance service or hospital who accept the terms of the workmen’s compensation act by providing services or material thereunder shall be bound by the fees approved by the director and no injured employee or dependent of a deceased employee shall be liable for any charges above said amounts approved by the director. If the employer has knowledge of the injury and refuses or neglects to reasonably provide the benefits herein required, the employee may provide the same for himself or herself, and the employer shall be liable for such expenses subject to the regulations adopted by the director.
“(c) If the services of the physician furnished as above provided are not satisfactory to the injured workman the director may authorize the appointment of some other physician subject to the limitations set forth in this section and the regulations adopted by the director. If the services of a physician furnished as above provided are not satisfactory to the injured workman, said workman may, without the approval of the director, consult another physician of his or her own choice, and the employer shall pay the fees and charges therefor. If such fees and charges are for examination, diagnosis, or treatment, such fees and charges shall not exceed a total amount of one hundred fifty dollars ($150).” (Emphasis supplied.)
Except for the increase in the fee provided for in (c) to $350.00, K.S.A. 44-510(a), (b) and (c) is comparable to the 1978 form of the statute. In reviewing the statute, we see that section (a) places a duty on the employer to provide a physician for the injured worker. Section (b) lets the injured worker select his own physician if the employer neglects or refuses to do so after notice of the injury. Section (c) permits the injured worker to have a different physician appointed by the director if the worker is dissatisfied with the physician provided by the employer in (a). Further, if the worker is dissatisfied with the new physician appointed by the director, he may select his own, but the employer is not liable for more than $150.00 for the services of such unauthorized physician.
The parties argue vigorously as to their respective positions of whether or not Dr. Wilson is or is not an authorized physician— citing conflicting testimony as to whether the emergency room physician referred the patient to Dr. Shaw, whether Dr. Wilson made the referral or whether they both did. We do not find this controversy germane. The patient was taken to the emergency room after having been struck by an automobile. He was sent home with some medication. He continued to have pain and went to see his chiropractor who treated various parts of his body for injuries sustained in the accident. When the patient’s back did not improve, the chiropractor suggested he see Dr. Shaw, who performed surgery. There is no evidence that the employer “provided” the emergency room physician as contemplated by K.S.A. 44-510(a). The claimant was seen on an emergency basis after being taken to the hospital by ambulance. When he did not improve, he visited the chiropractor who had previously treated him for other muscular and skeletal problems — a perfectly natural course of action under the circumstances, and contemplated by K.S.A. 44-510(b). The employer had not provided a physician, so the worker obtained his own. This was not a situation where the worker was dissatisfied with the physician provided by his employer, requested a change through the director, became dissatisfied with the new physician and selected his own (as contemplated by K.S.A. 44-510[c]).
No one contends the services of Dr. Wilson were duplicative of medical services provided by the employer, or that they were unnecessary or that the charges thereon were excessive. We conclude the charges of Dr. Wilson are compensable under K.S.A. 44-510(b). The employer has paid $150.00 of those charges and is responsible for the balance of $334.00. The award should be increased by this amount.
The judgment is affirmed as modified. | [
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The opinion of the court was delivered by
Herd, J.:
This is a damage suit for personal injuries arising out of a fall on a defective sidewalk. The trial court granted summary judgment to the defendants and this review follows the Court of Appeals’ decision in an unpublished decision filed May 2, 1985, which reversed the trial court and remanded the case for trial.
The facts are as follows: On the afternoon of August 18, 1979, the appellant, Freda Sepulveda, went to the Duckwall-Alco store in Lyons to purchase a birthday card. The store is located on the town square. After making her purchase, she left the store through its north exit. She walked out the door, traveled a few steps, and fell. Ms. Sepulveda attributed her fall to a sunken section in the sidewalk. She testified in her deposition that the time of her fall was between 1:00 and 3:30 p.m. on a clear, sunny day.
Ms. Sepulveda also stated that when she came out of the store, she was carrying a handbag and the birthday card, and nothing was blocking her vision or distracting her attention.
Ms. Sepulveda was familiar with the sidewalk in front of the store, having been there many times prior to the day in question, but she had never noticed the unevenness of the sidewalk in front of the north door.
The deposition testimony of the witnesses who observed the sidewalk irregularity was to the effect that the sunken area in the sidewalk was no more than one inch. Other testimony revealed no one had ever reported tripping on the unevenness before.
On August 14, 1981, Ms. Sepulveda filed this action against Duckwall-Alco Stores, Inc.; Elwood Tobias and Gertrude Wassberg, co-owners and lessors of the building in which the Duck-wall store was located; and the City of Lyons. She seeks damages for permanent disability, pain and suffering, and past and future medical expenses.
The discovery testimony revealed that the sidewalk in front of the Duckwall store was city property. However, Lyons city ordinances required abutting property owners to keep the sidewalks clean and in good repair.
In early 1970, the federally funded Lyons Urban Renewal Agency replaced a portion of the sidewalk running in front of the Duckwall store in order to install a sewer and drainage system. The sidewalk was initially even, but due to compaction settled all along the block after the Urban Renewal project.
In 1976, appellee, Elwood Tobias, had some of the concrete slabs in front of the Duckwall store replaced. He paid the bill for the replacement, but was later reimbursed by the City for 75% of the costs.
After the repair in 1976, the walk slowly became uneven again. One section, four feet north of the north door to Duckwall’s, had sunk approximately one inch.
At some time, the Duckwall manager and the Lyons City Administrator spray-painted red lines along the uneven slabs and red X’s on the slabs needing to be replaced. The testimony is conflicting as to whether the sidewalk was painted before or after appellant’s fall.
In 1980, the City again repaired the sidewalk. The City did not consult with either Mr. Tobias or Duckwall-Alco Stores, Inc. about the repair work and did not submit the bill to them. The last repair revealed an old, open stairwell under the sinking slab.
At the conclusion of discovery, the trial court granted summary judgment to appellees. The trial court relied primarily on our holding in Taggart v. Kansas City, 156 Kan. 478, 134 P.2d 417 (1943), and held as a matter of law “that defects in sidewalks of the nature and extent involved in this case are not actionable.”
The Court of Appeals noted in its opinion that all of the cases cited by appellees concern causes of action accruing prior to July 1,1974, the effective date of the comparative negligence statute, K.S.A. 60-258a, and its elimination of contributory negligence as a complete defense. Additionally, the Court of Appeals emphasized this court’s statement in Taggart:
“The facts of the particular situation, and the circumstances shown by the evidence with respect to [the walk’s] use, are matters which must be taken into account, and for this purpose each case must depend upon its own facts and circumstances.” 156 Kan. at 481.
The Court of Appeals refused to find the approximate one-inch “stepdown” was a slight and inconsiderable defect not actionable at law, and reversed and remanded the case for trial on the theory an unresolved question of fact was presented.
We granted review.
The sole issue in this case is whether the trial court erred in holding a one-inch drop-off in a sidewalk does not constitute an actionable defect as a matter of law.
The trial court in granting summary judgment determined that:
“[T]he sidewalk defect existing on August 18, 1979, in front of the defendant Duckwall store in the City of Lyons, Kansas, is not actionable as a matter of law, and that as a result thereof, there exists no genuine issue as to any material fact.”
Appellant argues the trial court’s grant of summary judgment was error because questions of negligence are questions for the jury to decide. While that is true, it is also a rule in Kansas that slight variances in the level of sidewalk surfaces, whether caused by projections, depressions or otherwise, are not sufficient to establish actionable negligence in the construction or maintenance of the sidewalk. Biby v. City of Wichita, 151 Kan. 981, 101 P.2d 919 (1940).
The rule of non-actionability for slight defects has been consistently upheld and applied in a number of Kansas cases. See, e.g., Green v. Steward, 216 Kan. 720, 533 P.2d 1240 (1975) (corner of concrete slab one-fourth inch higher than rest of sidewalk); Roach v. Henry C. Beck Co., 201 Kan. 558, 442 P.2d 21 (1968) (plywood board three-fourths inch thick and three feet square covering hole in sidewalk); Pierce v. Jilka, 163 Kan. 232, 181 P.2d 330 (1947) (eighteen inch by twenty-four inch by one inch doormat located at entrance to hotel); Slaton v. Union Electric Ry. Co., 158 Kan. 132, 145 P.2d 456 (1944) (three-inch depression in brick road immediately adjacent to railway track).
It is important to note the same rule applies in actions against an individual or private corporation alleged to have created or maintained a defect in the sidewalk. Roach v. Henry C. Beck Co., 201 Kan. at 560; Pierce v. Jilka, 163 Kan. at 239.
It was the rule of slight defect non-actionability which was determinative in Taggart v. Kansas City, 156 Kan. 478, the case relied upon by the trial court in its memorandum decision granting defendants’ motion for summary judgment.
In Taggart, the plaintiff brought an action for personal injuries sustained when she fell on a city sidewalk. The alleged cause of her fall was a “stepdown” not exceeding three inches from an irregular slab in the sidewalk. A jury trial resulted in a judgment for the plaintiff and defendant appealed on the ground that its demurrer to the plaintiff s evidence should have been sustained.
The court in Taggart first set out the two issues on appeal as follows:
“Was the imperfection in the sidewalk at the place where plaintiff fell so serious as to be an actionable defect, and was plaintiff negligent in her use of the walk in such a way as to bar her recovery?” 156 Kan. at 480.
This statement indicates the issue of whether the sidewalk imperfection constituted an actionable defect was separate and distinct from the issue of whether plaintiff was contributorily negligent. Such distinction is significant since appellant here contends the adoption of comparative negligence in Kansas requires a reversal of the “actionable defect” rule.
In considering whether the sidewalk irregularity constituted an actionable defect, the court in Taggart held that a city’s only duty with respect to its sidewalks is to furnish walks which are reasonably safe for use. The court held:
“In determining whether a sidewalk is reasonably safe for the use of pedestrians its location, the extent of the irregularity therein, its prior use and its use on the occasion in question are matters to be taken into account.” Syl. ¶ 2.
The Taggart court then determined that the irregularity of the walk as it was used by the plaintiff did not make the walk unsafe for reasonable use and, therefore, the stepdown of not more than three inches was not an actionable defect. This holding was supported by . evidence that the walk had been in substantially the same condition for six to eight years prior to plaintiff s fall. Additionally, the walk was situated in a residential section of the city and no one had previously reported tripping or falling because of the alleged defect in the walk.
As in Taggart, the sidewalk irregularity in the present case had existed for some two to three years prior to appellant’s fall. The three-inch irregularity in Taggart, however, was three times as great as the one-inch depression in the present case. Also, like Taggart, the evidence in the present case was that no one had previously reported problems because of the sunken sidewalk. In addition, here, Ms. Sepulveda had walked on this sidewalk many times without mishap.
Therefore, the trial court’s determination that the one-inch variance in the level of the sidewalk surface was not an actionable defect was supported by the evidence presented and adheres to the rules set out in Taggart.
Appellant also contends that even if the rule in Taggart is applicable to the present case, the case should be reversed on the basis that it does not comply with modern-day conceptions of the right of the public to be protected from the negligence of governmental entities, store owners and lessors. Appellant cites no authority in support of this argument. We have reexamined the rule set out in Taggart and conclude it is just as valid now as when announced. To require a higher degree of care in street and sidewalk maintenance than the current “reasonably safe for use” standard would make such public improvements financially prohibitive, particularly in this state where the wide variation in temperature causes much contraction and expansion of paving material.
The Court of Appeals noted that all of the cases cited as authority by appellees concern causes of action occurring prior to July 1, 1974, the effective date of the comparative negligence statute, K.S.A. 60-258a, and its elimination of contributory negligence as a complete defense.
The Court of Appeals’ opinion ignores the distinction which must be made between the actionable defect rule and the issue of plaintiff s negligence. The latter issue cannot be reached until the former is resolved. If there is no actionable defect, there is no negligence and thus nothing to compare.
We find that a sidewalk defect such as the one here is not an actionable defect as a matter of law. Thus, there remains no question of fact for trial and summary judgment was properly granted. We hold the rule in Taggart should not be reversed.
The judgment of the trial court is affirmed and the decision of the Court of Appeals is reversed. | [
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The opinion of the court was delivered by
Lockett, J.:
This is an action where the passenger sought damages for personal injuries received in an automobile accident. The trial court dismissed the suit on the basis that the two-year statute of limitations had run before the appellant obtained valid service of process.
On June 30, 1981, the plaintiff, Rozena Jackson, was a passenger in a vehicle operated by Alphonso Johnson. The Johnson vehicle collided with an American Best Freight System, Inc., semi-trailer truck operated by its employee, Alvin T. Kotrous. On December 16, 1982, Jackson filed suit against American Best Freight System, Inc. (ABF), Alvin T. Kotrous and Alphonso Johnson.
On December 16, 1982, the plaintiff obtained an order from the district court directing service on all nonresident defendants pursuant to K.S.A. 8-401 and K.S.A. 8-402. On December 21, 1982, the Shawnee County District Court Clerk directed service on the Secretary of State for Alvin T. Kotrous and ABF. When the sheriff served the papers, the Secretary of State’s office under K.S.A. 8-403 simply docketed them. Since there is no fee required under the statute, the Secretary of State does not proceed with the service of process. If service had been attempted under K.S.A. 60-304(f) on ABF, a foreign corporation, a statutory fee would have been required and the Secretary of State would have completed the service of process. The return of service by the sheriff on the Secretary of State was filed with the clerk of the court on December 27, 1982. No service was obtained on Alphonso Johnson.
The two-year limitation for Jackson to commence her action under the existing statute expired on June 30, 1983. July 1, 1983, one day later, K.S.A. 60-203(b) became effective.
On November 17, 1983, after receiving notice that the case would be dismissed for lack of prosecution, the plaintiff filed a motion for default judgment, stating that defendants ABF and Kotrous, although served with process by the Secretary of State, had filed' no response to the pleadings. The district court, after reviewing the court file, found that plaintiff had served the Secretary of State, but had not served notice on the defendants or filed an affidavit of service as required by K.S.A. 8-402. On March 16,1984, the trial court ruled that service of process on the defendants was invalid and denied plaintiff s motion for default judgment.
On May 11, 1984, plaintiffs counsel filed an affidavit for service pursuant to K.S.A. 8-402 and K.S.A. 60-307. The Shawnee County District Court Clerk directed service of process and a copy of the petition to defendants ABF and Kotrous by registered mail. The defendants received notice of the action on May 21 and May 23, 1984, respectively.
Defendants Kotrous and ABF filed a motion to dismiss on June 5, 1984, claiming that service of process was invalid and that plaintiff s action was barred by the two-year statute of limitations. K.S.A. 60-513. On November 15, 1984, the trial court sustained the motion to dismiss and ruled (1) that plaintiff s action was barred by the two-year statute of limitations; (2) that K.S.A. 60-203(b), which allows a party an additional 90 days to obtain service after the original service has been adjudicated invalid, would not be applied retrospectively to plaintiff s lawsuit; and (3) that plaintiff s second attempted service of process under K.S.A. 8-402 was also ineffective. Plaintiff appeals.
Jackson argues that K.S.A. 60-203(b), which became effective July 1, 1983, is a procedural statute which can be applied retroactively and would allow her to serve process on the defendants within 90 days after March 16, 1984, when it was adjudicated that the first service of process was improper. Defendants contend that Jackson’s suit was barred by the statute of limitations and that a procedural statute cannot be applied retroactively where a limitations defense has become vested.
K.S.A. 60-203(b) provides:
“If service of process or first publication purports to have been made within the time specified by subsection (a)(1) but is later adjudicated to have been invalid due to any irregularity in form or procedure or any defect in making service, the action shall nevertheless be deemed to have been commenced by the original filing of the petition if valid service is obtained or first publication is made within 90 days after that adjudication, except that the court may extend that time an additional 30 days upon a showing of good cause by the plaintiff.”
K.S.A. 60-203(b) contains no language that indicates the legislature intended for the statute to operate retroactively. A statute operates prospectively unless its language cleárly indicates that the legislature intended that it operate retrospectively. Davis v. Hughes, 229 Kan. 91, 622 P.2d 641 (1981). This rule is normally applied when an amendment to an existing statute or a new statute is enacted which creates a new liability not existing before under the law or which changes the substantive rights of the parties. Nitchals v. Williams, 225 Kan. 285, 590 P.2d 582 (1979).
The plaintiff contends, however, that the statute is procedural, rather than substantive, and the statute can therefore be applied retroactively.
While generally statutes will not be construed to give them retrospective application unless it appears that such was the legislative intent, nevertheless when a change of law merely affects the remedy or law of procedure, all rights of action will be enforced under the new procedure without regard to whether they accrued before or after such change of law and without regard to whether or not the suit has been instituted, unless there is a savings clause as to existing litigation. Davis v. Hughes, 229 Kan. at 101; Lakeview Village, Inc., v. Board of Johnson County Comm’rs, 232 Kan. 711, 659 P.2d 187 (1983).
While retrospective operation of procedural statutes has been allowed generally, where a vested right of defense exists prior to the effective date of the procedural statute, it would not be proper to allow the retrospective application of 60-203(b). Once it was established the defendants had never been served, the statute of limitations barred any further actions against them. Defendants had a vested right in the defense provided by the statute of limitations. There is no distinction between a vested right of action and a vested right of defense. Accordingly, the general rule is that a vested right to an existing defense is protected in like manner as a right of action, with the exception only of those defenses which are based on informalities not affecting substantial rights. Pritchard v. Norton, 106 U.S. 124, 132, 27 L.Ed. 104, 1 S.Ct. 102 (1882). The trial court was correct when it determined that under the facts of this case K.S.A. 60-203(b) did not apply retrospectively and that Jackson’s action was barred by the two-year statute of limitations.
Since the plaintiff s action is barred by the two-year statute of limitations, other issues raised in the appeal need not be determined.
Judgment is affirmed. | [
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|
The opinion of the court was delivered by
Herd, J.:
This is an action for breach of contract, violation of federal regulations and the usury statute. It arises from the following facts:
On September 27, 1978, Capitol Federal Savings & Loan Association (Capitol Federal) made a loan to Keith and Irene Botts in the amount of $53,100. In consideration for the loan, the Bottses executed and delivered to Capitol Federal a first mortgage note with interest at the rate of 9.75% per annum. To secure the note, the Bottses executed a mortgage to Capitol Federal on certain real property located at 6521 Granada Drive, Prairie Village, Kansas.
The note and mortgage contained a standard “due-on-sale clause” which is set forth later in this opinion.
On November 30, 1980, Timothy S. Frets contracted with Keith Botts for the purchase of the Bottses’ home. At that time Frets specifically reserved the right to obtain other forms of financing. The purpose of the reservation of the option was primarily to allow Frets an opportunity to examine the loan documents pertaining to the due-on-sale clause prior to assuming the loan.
Based upon his understanding of the acceleration clause in the agreement, Frets prepared a supplemental agreement dated December 31, 1980, reserving the right to assume the existing mortgage.
On January 22,1981, Mr. Frets contracted to sell his Oklahoma City home, the closing of which was scheduled for February 9, 1981. The following day, he gave two weeks’ notice of resignation to his employer.
On February 6, 1981, Mr. Dennis Rabbitt, the vice-president of Capitol Federal, was contacted regarding Mr. Botts’ desire to let the buyers of his home (Timothy and Lou Ann Frets) assume the existing note and mortgage. Mr. Rabbitt then forwarded an assumption packet to the real estate agency, J. C. Nichols Company. The packet contained an assumption statement, Note Endorsement, Regulation Z Disclosure statement, Notice of Right of Rescission form and instructions relating thereto. As partial consideration for Capitol Federal’s agreement to waive its right to enforce the due-on-sale clause, Capitol Federal required a note endorsement by Botts increasing the rate of interest on the loan from 9.75% to 12% per annum.
Keith Botts agreed to the interest increase on February 10, 1981, prior to closing the sale transaction with appellant. On that same date, the sale transaction between Keith Botts and Frets was completed.
At the time the loan was assumed by Frets at the rate of 12% per annum, the prevailing market interest rate for new loans of the same or similar type was at or above 14.25% per annum.
The Fretses have made monthly mortgage payments to Capitol Federal since March 10, 1981.
On March 3,1983, more than two years after the assumption of the note and mortgage, Timothy Frets commenced the present action. He initially filed a three-count petition, alleging that Capitol Federal’s manner of assumption resulted in a usurious rate of interest and that the due-on-sale clause and note endorsement were invalid and unenforceable. On June 23,1983, he amended his petition to include a breach of contract claim and request for declaratory judgment.
The trial court granted summary judgment in favor of Capitol Federal. Frets appeals.
Appellant’s first contention is that the trial court erred in holding Capitol Federal was authorized to utilize the due-on-sale clause to accelerate the note for any reason it deemed sufficient. Appellant argues the exercise of a due-on-sale clause is governed by the terms of the loan contract, which limited the exercise of the clause to impairment of security only.
Capitol Federal, however, argues it had the right to accelerate the indebtedness upon a sale of the property for “any reason it deemed sufficient,” including the desire to keep its loan portfolio at more nearly current rates of interest and thus protect its economic position in the marketplace as its interest costs rise with the market.
Before discussing these arguments, it should be noted Capitol Federal did not exercise the due-on-sale clause of its agreement with Mr. Botts. Instead, Capitol Federal waived its right to exercise the clause in exchange for an increase in the interest rate on the loan from 9.75% to 12%. Thus, appellant argues there was no consideration for the increased interest rate, since Capitol Federal allegedly had no right to accelerate the note absent an impairment of security.
In Capitol Fed’l Savings & Loan Ass’n v. Glenwood Manor, Inc., 235 Kan. 935, 686 P.2d 853 (1984), we specifically rejected the argument that a federally chartered savings and loan institution must demonstrate an impairment of security before enforcing a due-on-sale clause in a mortgage. 235 Kan. at 942. We followed Fidelity Federal Sav. & Loan Assn. v. De La Cuesta, 458 U.S. 141, 73 L.Ed.2d 664, 102 S.Ct. 3014 (1982), in holding that federal law and regulations have preempted state law in this area.
The Federal Home Loan Bank Board (Board) issued the following regulation in 1976 governing due-on-sale clauses:
“[A federal savings and loan] association continues to have the power to include, as a matter of contract between it and the borrower, a provision in its loan instrument whereby the association may, at its option, declare immediately due and payable sums secured by the association’s security instrument if all or any part of the real property securing the loan is sold or transferred by the borrower without the association’s prior written consent. Except as [otherwise] provided in . . . this section . . . , exercise by the association of such option (hereafter called a due-on-sale clause) shall be exclusively governed by the terms of the loan contract, and all rights and remedies of the association and borrower shall be fixed and governed by that contract.” 12 C.F.R. § 545.8-3(f)(1983) (originally codified as 12 CFR § 545.6-ll[f] [1980]).
As noted in De La Cuesta, the only restrictions upon enforcement of due-on-sale clauses are found in 12 CFR § 545.8-3(g) (1982) and that provision does not limit a federal association’s right to accelerate a loan to cases where the lender’s security is impaired. In fact, the Board approves of the practice of exercising a due-on-sale clause in order to adjust a long-term mortgage interest rate toward current market rates.
The Board’s analysis was summarized in De La Cuesta:
“It [the Board] observes that the federal associations’ practice of borrowing short and lending long — obtaining funds on a short-term basis and investing them in long-term real estate loans, which typically have a 25- to 30-year term — combined with rising interest rates, has increased the cost of funds to these institutions and reduced their income. Exercising due-on-sale clauses enables savings and loans to alleviate this problem by replacing long-term, low-yield loans with loans at the prevailing interest rates and thereby to avoid increasing interest rates across the board.” 458 U.S. at 168-69.
Thus, it is clear it is acceptable for a savings and loan association to enforce the due-on-sale clause for the purpose of improving its position in the money market.
Appellant does not disagree with this contention, but instead emphasizes the second sentence of the regulation quoted above, which provides in pertinent part:
“[EJxercise by the association of such option (hereafter called a due-on-sale clause) shall be exclusively governed by the terms of the loan contract, and all rights and remedies of the association and borrower shall be fixed and governed by that contract.” (Emphasis added.) 12 C.F.R. § 545.8-3(f) (1983).
Appellant argues the emphasized portion of the regulation mandates each loan contract be considered on a case-by-case basis. Thus, depending upon the terms of the contract, the federal association may be limited to enforcing the due-on-sale clause to cases where transfer of the mortgaged property constitutes an impairment of security.
The United States Supreme Court interpreted the second sentence of the regulation in De La Cuesta as follows:
“Moreover, in our view, the second sentence of § 545.8-3(f) simply makes clear that the regulation does not empower federal savings and loans to accelerate a loan upon transfer of the security property unless the parties to the particular loan instrument, as a matter of contract, have given the lender that right. Similarly, if the parties to a given contract agree somehow to limit the association’s right to exercise a due-on-sale provision, the second sentence of § 545.8-3(f) precludes the lender from relying on the first sentence as authorizing more expansive use of the clause.” 458 U.S. at 157-58.
Here, appellant argues the parties to the contract limited Capitol Federal’s right to exercise the due-on-sale clause to a situation where a transfer would impair the security property.
Let us now examine the due-on-sale clause found in the mortgage given by Keith Botts and assumed by the appellant. It provides:
“The loan evidenced by said note and secured by this mortgage has been made by said Lender by reason of the personal and financial responsibility of the Borrower. The real estate mortgaged to secure said note may be sold, conveyed or otherwise alienated by the Borrower at any time subject to the lien of this mortgage, provided, however, that in such event, the Borrower agrees that said Lender may, at its option and for any reason it deems sufficient, elect to declare all remaining principal and accrued interest remaining due on said note immediately due and payable and foreclose this mortgage.”
Appellant contends the first sentence of the clause indicates the intention of the parties that the due-on-sale clause be used solely to protect the security of the mortgage. Such an interpretation ignores the provision in the second sentence of the clause allowing Capitol Federal, upon transfer of the property, to accelerate the loan “for any reason it deems sufficient.” This phrase clearly contemplates a lender’s acceleration of payment for the purpose of portfolio maintenance. Acceleration is not limited, as appellant suggests, to cases where the assuming buyer’s creditworthiness is suspect.
In light of our holding in Glenwood Manor, and the specific language of the contract in the instant case, the trial court properly ruled that Capitol Federal’s utilization of the due-on-sale clause to achieve an increased interest rate was within the terms of the agreement.
Appellant next argues that Capitol Federal breached the terms of the note and mortgage by entering into an agreement to increase the interest rate on the note prior to the transfer of the property and without giving the appellant sixty days’ notice in writing. This argument centers on a second provision in the note pertaining to the due-on-sale clause:
“In the event the real estate mortgaged to secure this note is so transferred before this note is paid, said Lender may elect to accept the assuming grantee and waive its right to accelerate this note ... At the time of such acceptance of the assuming grantee by Lender, said Lender may increase the interest rate up to but not to exceed the then current rate being charged by the Lender on similar new loans, upon giving sixty (60) days notice in writing.”
The appellant concludes from this provision that Capitol Federal did not have the right to waive its right to exercise the due-on-sale clause or increase the interest rate until after Mr. Botts sold his house to the appellant and Capitol Federal accepted appellant as the assuming grantee. Moreover, appellant argues that before increasing the interest rate, Capitol Federal should have given him sixty days’ notice in writing.
This argument disregards the fact that prior to the transfer of the property, Capitol Federal entered into a written modification agreement (note endorsement) with Keith Botts whereby Capitol Federal waived its right to accelerate the note in exchange for an increased interest rate. The provision in question, on the other hand, refers to the unilateral exercise by the lender of its right to an increased interest rate, following a transfer of the property and the acceptance of the assuming grantee. Capitol Federal did not exercise its unilateral right, but, instead, waived its contractual right to accelerate in exchange for a separate agreement with the original borrower to increase the rate of interest. If appellant has a complaint, it is against the party with whom he contracted — Keith Botts. However, it should be remembered Frets freely and voluntarily assumed the Capitol Federal loan and made payments thereon for two years prior to filing this suit. This issue is without merit.
Appellant next alleges the trial court erred in ruling Capitol Federal did not breach the terms of the mortgage by agreeing to an increase in the interest rate in excess of the rate permitted by K.S.A. 1978 Supp. 16-207.
Appellant makes several points under this issue, the first of which is that the 12% interest rate agreed to in the note en dorsement was in excess of the 11% usury limit in effect at the time the original agreement was made in 1978.
The Kansas usury law in effect on September 28, 1978, provided in pertinent part:
“The parties to any loan evidenced by a note secured by a first real estate mortgage may stipulate therein for interest receivable upon the amount of such note at a rate not to exceed eleven percent (11%) per annum.” K.S.A. 1978 Supp. 16-207.
In support of his contention, appellant cites the general rule that the validity, construction, effect and execution of a contract are governed by the law in existence at the time the contract was made. Schulte v. Franklin, 6 Kan. App, 2d 651, 653, 633 P.2d 1151 (1981).
Capitol Federal argues, and the trial court agreed, that the modification agreement, represented by the note endorsement, is anew contract if supported by sufficient consideration. 17 Am. Jur. 2d, Contracts § 469.
On February 10, 1981, the date the note endorsement was executed, K.S.A. 1980 Supp. 16-207 provided the maximum interest rate was one and one-half points above the federal government’s average weighted yield of mortgages accepted under the Federal Home Loan Mortgage Corporation’s weekly purchase program. The 12% interest rate provided for in the note endorsement was well within the usury limitation on that date. Appellant responds to Capitol Federal’s argument by contending that since Mr. Botts, the original borrower, remains liable on the loan, the note endorsement cannot constitute a new contract. This argument is without merit. The original parties to a contract may mutually modify its terms, resulting in a new contract. The validity of the new contract is governed by the law in effect on the date the modification agreement was executed. Since the 12% interest rate was within the legal limit on February 10,1981, the date the contract was modified, it is not a usurious rate of interest.
Appellant also contends that the note endorsement cannot constitute a new contract because it is not supported by adequate consideration. Appellant bases this argument upon the fact that Capitol Federal waived a right which was not yet available to it. While it is true that Capitol Federal could not exercise the acceleration clause until the property was sold or conveyed by Mr. Botts, the relinquishment of that right in exchange for an increased interest rate constituted adequate consideration for the agreement. As a general rule, the relinquishment of a legal or contract right or privilege is sufficient consideration for a promise. 17 Am. Jur. 2d, Contracts § 109.
Appellant reasserts his argument that the terms of the loan contract limit the exercise of the due-on-sale clause to those cases where it is necessary to protect the lender’s security. Thus, appellant argues Capitol Federal’s waiver of its right to exercise the due-on-sale clause could not constitute sufficient consideration since Capitol Federal had no basis for exercising the clause. As we previously determined in a different context, this issue is without merit.
Appellant’s final contention under this issue is that the note endorsement was not an openly bargained-for agreement. Appellant relies primarily upon the deposition of Keith Botts as support for this proposition.
Mr. Botts testified that he understood if he didn’t agree to the modification, the loan would not be assumable. Mr. Botts admitted, however, that he at no time spoke with any representative of Capitol Federal regarding appellant’s assumption of the loan or his execution of the note endorsement. Mr. Botts also testified he understood his failure to sign the note endorsement wouldn’t preclude him from selling his house but would preclude the assumption of the mortgage.
Keith Botts was not threatened or forced to sign the note endorsement. He voluntarily chose to execute the note endorsement and he understood the possible consequences if he didn’t sign it — e.g., Capitol Federal could accelerate the note in accordance with the due-on-sale clause. The facts on this issue are not controverted and the trial court properly ruled the note endorsement was an openly bargained-for agreement.
Appellant next contends Capitol Federal had no right to increase the interest rate since the due-on-sale provision was violative of public policy and, therefore, null and void.
Appellant’s arguments on this issue are merely a restatement of his arguments on the previous issues. He contends the due-on-sale clause of the mortgage and note in question “contemplated and achieved an increase in excess of the 11% usury ceiling imposed by K.S.A. 1978 Supp. 16-207.” Consequently, he argues the trial court erred in failing to declare the entire note and mortgage null and void.
The fallacy of appellant’s contention is that the due-on-sale clause doesn’t “contemplate” any particular rate of interest. Rather, the clause operates to prohibit the borrower from assigning the mortgage to subsequent purchasers.
Secondly, as we have previously determined, the 12% interest rate is within the statutory limit in effect on February 10, 1981, the date the modification agreement was entered into.
There is no merit to appellant’s contention that the due-on-sale clause was violative of public policy.
The next point argued by appellant is that Capitol Federal was guilty of substantive and procedural unconscionability in the manner in which it contracted for and exercised the due-on-sale clause.
We discussed the doctrine of unconscionability in Wille v. Southwestern Bell Tel. Co., 219 Kan. 755, 549 P.2d 903 (1976), and set forth a number of factors to be considered when determining whether a particular act or practice is unconscionable. The appellant contends that a number of these factors are present here.
Specifically, appellant notes the loan contract in this case consists of a standardized printed form drafted by Capitol Federal for mass use. He contends borrowers must accept its terms in order to obtain financing to purchase a home. This, he reasons, results in “gross inequality of bargaining power.” Appellant also alleges the due-on-sale clause was inconspicuous and “buried in the middle of 13 inches of fine print.” He argues the language of the due-on-sale clause was unclear and a borrower could reasonably believe the due-on-sale provision was intended only to protect Capitol Federal’s security.
Appellant’s contentions are without merit. The due-on-sale clause is not buried in a mass of fine print. Each paragraph in the mortgage agreement is given equal importance, emphasis and type size. The mortgage agreement is only two pages long so the fact the clause is on “the back page” is of little significance. In addition, a virtually identical due-on-sale clause is contained in the first mortgage note executed by the Bottses. The subject clause is set out in a separate paragraph.
Capitol Federal concedes it was in a much stronger lending position than both Keith Botts and the appellant. However, that factor alone does not dictate a finding that the contract was unconscionable. Wille v. Southwestern Bell Tel. Co., 219 Kan. at 759.
Finally, Keith Botts testified he read and understood the documents in question and the effect of the due-on-sale clause. Thus, if the terms of the agreement were not acceptable to Mr. Botts, he could have sought financing' from another source. Furthermore, Mr. Botts signed the note endorsement with full knowledge it was a modification of the loan agreement and that he could rescind the endorsement in the event the sales transaction did not close. In Wille, this court commented:
“The cases seem to support the view that there must be additional factors such as deceptive bargaining conduct as well as unequal bargaining power to render the contract between the parties unconscionable. In summary, the doctrine of unconscionability is used by the courts to police the excesses of certain parties who abuse their right to contract freely. It is directed against one-sided, oppressive and unfairly surprising contracts, and not against the consequences per se of uneven bargaining power or even a simple old-fashioned bad bargain.” 219 Kan. at 759-60.
There is no element of unfair surprise or oppression in this case. The fact that the parties had uneven bargaining power is insufficient, standing alone, for a finding of unconscionability.
Appellant makes two final points on appeal. First, he argues the trial court erred in finding the appellant could not maintain a direct action to recover usurious interest.
The trial court, relying on Young v. Barker, 185 Kan. 246, 342 P.2d 150 (1959), and Marshall v. Beeler, 104 Kan. 32, 178 Pac. 245 (1919), held that a claim of usury may only be raised as a defense or counterclaim when suit is brought to enforce payment of the alleged usurious obligation. Thus, the trial court granted summary judgment in favor of Capitol Federal on appellant’s claim to recover usurious payments.
We need not consider the correctness of the trial court’s ruling since this issue has been rendered moot by our determination that the 12% interest rate was within the statutory limit in effect on February 10, 1981, the date the note endorsement was executed.
Appellant also argues the trial court erred in granting summary judgment against the appellant on his claim seeking a declaratory judgment that the interest charged on his loan is usurious. The trial court ruled that a declaratory judgment action is an inappropriate means by which to determine issues relative to usury.
In light of our previous determination that the 12% interest rate being charged on appellant’s loan is not usurious, we find this issue is also moot.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Herd, J.:
The appellant, Alphonso D. Saltón, appeals his jury conviction of aggravated robbery (K.S.A. 21-3427), unlawful use of a financial card (K.S.A. 1985 Supp. 21-3729) and felony theft (K.S.A. 1985 Supp. 21-3701). The relevant facts are as follows.
At approximately 4:30 a.m. on September 5, 1983, Charles D. Heilman was delivering equipment to a building located at 780 E. Fifteenth Street in Wichita for his employer, Southwestern Bell Telephone Company. Ten to fifteen minutes after Mr. Heilman arrived at the building, he was approached by an unidentified black man who requested water for his car’s overheating radiator. Heilman complied with the request, and the man departed, only to return about five minutes later, asking for more water. The man also stated he was hungry and thirsty. Heilman informed him there were vending machines inside the building. The man then indicated he needed change for a dollar bill and followed Heilman inside.
Once inside the building, Heilman turned his back to the individual to purchase some food for him. When he turned around again, the man was holding a gun and told him, “This is a robbery. As long as you cooperate you won’t get hurt.”
Heilman later described the weapon as a long, blue steel handgun, possibly a .22 caliber. He estimated the gun had a six-inch barrel but acknowledged he did not know the exact length of the barrel. He also acknowledged he was unable to distinguish whether the gun was an automatic or a revolver.
The robber took Heilman’s wedding ring, his wristwatch, his wallet and his personal and company keys. The wallet contained, among other things, a MasterCard bearing the name of Charles D. Heilman. The robber then directed Heilman to a different location in the building and told him to lie down on the floor. After remaining on the floor from thirty to forty-five minutes, Heilman got up and telephoned the Wichita Police Department.
Two days later, on September 7, 1983, an individual entered David’s Sweetbrier store in Wichita, and purchased a number of items with a MasterCard credit card bearing the name of Charles D. Heilman. Ruby Moore, a salesperson at the store, positively identified the appellant, Alphonso Saltón, as the person who presented the charge card of Charles D. Heilman for the purchases and whom she witnessed sign the charge slip receipts.
Tonette Fuller, an employee at David’s Parklane store in Wichita, testified that on September 7, 1983, an individual purchased items at David’s with a credit card bearing the name of Charles D. Heilman. She identified Saltón as the person who presented the charge card and signed the receipts.
Ruby Moore also identified the appellant as the person whom she saw placing unpaid-for merchandise in his shopping cart beneath the items already purchased with the MasterCard. She notified Kelly Otis, a security officer, of her observations, and Mr. Otis then watched Saltón leave the store with the unpaid-for merchandise. Mr. Otis identified the appellant as the individual who had removed the merchandise from the store and fled the scene after being confronted regarding the theft.
The appellant was charged with aggravated robbery, unlawful use of a financial card, theft and unlawful possession of a firearm. The jury returned a verdict of guilty on all but the charge of unlawful possession of a firearm.
The trial court sentenced Saltón to a period of confinement of twenty to thirty years for aggravated robbery, three to fifteen years for unlawful use of a financial card, and two to ten years for theft. The court later amended the theft sentence to not less than one year nor more than ten years pursuant to K.S.A. 1985 Supp. 21-4501(d).
The first question on appeal is whether the trial court erred in failing to require the appellant’s presence at the commencement of his trial.
Prior to commencement of the trial, the trial court denied the appellant’s request for a new attorney. Saltón responded by declaring he was not ready for trial and would not be present in the courtroom. The trial court arranged for a sound system to be installed in the holding cell adjacent to the courtroom and then placed the appellant in the holding cell. The judge advised the appellant of his continuing right to be present at the trial and arranged a means for relaying any change in his decision to the court so he could immediately be admitted to the courtroom. Appellant persisted in his refusal to attend his trial.
The trial was resumed and voir dire and jury selection were completed in the appellant’s absence. Upon the jury’s entering the courtroom, the trial judge explained the appellant’s absence and the fact that he could hear the proceedings.
Appellant now contends the trial court violated K.S.A. 1985 Supp. 22-3405(1) by not requiring his presence at the commencement of his trial. That statute provides:
“The defendant in a felony case shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of the sentence, except as otherwise provided by law. In prosecutions for crimes not punishable by death, the defendant’s voluntary absence after the trial has been commenced in such person’s presence shall not prevent continuing the trial to and including the return of the verdict. A corporation may appear by counsel for all purposes.” (Emphasis added.)
Focusing on the emphasized portion of the statute, the appellant argues that in order to comply with K.S.A. 1985 Supp. 22-3405, a trial court must require a defendant’s presence at the commencement of his trial. Since the appellant here was not present at the commencement of his trial, appellant argues the trial was “irreparably tainted” from the outset.
Appellant’s argument is unacceptable for a number of reasons. First, we have often held a litigant may not invite and lead a trial court into error, and then complain of the trial court’s action on appeal. State v. Falke, 237 Kan. 668, 682, 703 P.2d 1362 (1985); State v. Gray, 235 Kan. 632, 636, 681 P.2d 669 (1984). Here, the appellant’s absence at the commencement of the trial was clearly voluntary. Prior to voir dire and jury selection, the trial judge informed the appellant of his continuing right to be present at trial. For this reason appellant cannot complain such action was error.
Second, appellant’s contention would lead to absurd results. Under his scenario, if a defendant voluntarily chose to absent himself from trial, the trial judge would be compelled to delay the trial indefinitely, awaiting the defendant’s cooperation, or, in the alternative, to physically force the defendant into the courtroom to insure his presence at the commencement of his trial. In our opinion such a result was not the legislature’s intention in enacting K.S.A. 1985 Supp. 22-3405. Rather, we construe the statute to permit a trial judge to proceed with trial when the defendant freely and voluntarily waives his right to be present in the courtroom at the commencement of the trial.
We hold the trial court did not err in permitting the appellant to freely, knowingly and voluntarily waive his right to be present at the commencement of his trial.
Appellant next asserts error in the trial court’s denial of his motion for mistrial. Appellant based his motion for mistrial upon two separate trial incidents.
Appellant first argues the testimony of State witness Officer Tom Mayhill was prejudicial and warranted a mistrial.
Mayhill testified at trial in his capacity as an expert forensic documents examiner. His testimony was limited to a discussion of his opinion of the signatures reflected on the credit card receipts. He testified that in his opinion, the maker of the signature of Charles Heilman was the same person for both receipts. During redirect examination, the witness was questioned regarding the various factors considered in forensic handwriting analysis and made the following statement:
“The last area that I consider, one of the last areas I consider is initial and final strokes. . . . Consideration here is also given to the initial stroke of, say, the letter W. To give an example, when I was back at the F.B.I. Academy one of the other document examiners from Wyoming asked, ‘Have you ever seen a “W” like this,’ and what he was referring to is what we in the documents field know as a black W. It’s made in a particular way. Not commonly all black. It’s seen most frequently at North High in Wichita, but it’s not peculiar to the Black race. There are many white people that make it.
“So as a documents examiner you have to understand what’s common and what’s unusual because that becomes an important consideration in doing the examination.”
Recognizing that this response was unsolicited, the appellant does not contend that this testimony should have been excluded. Rather, appellant argues the remark in question constituted a “racial slur” and warranted the granting of a mistrial. He contends the remark prejudiced him because the State never presented any testimony to the effect that the credit card receipts were signed by the appellant.
Officer Mayhill’s remarks concerning characteristics of the letter W related only to the general characteristics considered in a handwriting examination. The letter W did not appear anywhere in the handwriting in evidence on State’s exhibits one and two. Therefore, the jury could not infer from this testimony that a black man signed the credit card receipts in the name of Charles Heilman. Additionally, two witnesses had already identified the appellant as the person who signed the credit card receipts. Thus, the trial judge did not abuse his discretion in denying appellant’s motion for mistrial.
Appellant also argues that the identification procedures utilized at trial rendered the trial court’s denial of a mistrial an abuse of discretion. This argument relates to the following facts.
Upon completion of the direct and cross-examination of the robbery victim, Mr. Heilman, the trial court sustained the State’s request to have the appellant present for in-court identification. Saltón was brought in only after the jury was excused. After the jury returned, but before any further examination of the robbery victim, appellant announced, “Excuse me, I am sick all of a sudden. I am sick,” and left the courtroom. Heilman proceeded to identify Mr. Saltón as the man who had robbed him.
After an afternoon recess, the appellant was again brought into the courtroom for identification purposes after which he chose to stay in the courtroom for the remainder of the day. Once again, the jury was not present when the appellant entered the courtroom.
Appellant argues the trial court, by compelling his presence during the trial, created an unnecessarily suggestive identification of the appellant. He suggests the court should have required photographic identification rather than in-court identification, since four witnesses had identified the appellant through photographs prior to trial.
This argument overlooks the language of K.S.A. 1985 Supp. 22-3405(1). It permits a defendant to voluntarily absent himself from the courtroom but does not give the defendant a right to do so. We so construe it. This distinction was discussed in United States v. Moore, 466 F.2d 547, 548 (3rd Cir. 1972), and United States v. Fitzpatrick, 437 F.2d 19, 27 (2nd Cir. 1970). The issue in those cases was whether under Rule 43 of the Federal Rules of Criminal Procedure, the federal counterpart to K.S.A. 1985 Supp. 22-3405, a trial court must allow a defendant to absent himself from trial. The federal courts held, and we agree, that the rule permits a trial court to continue a trial when the defendant absents himself, but does not concomitantly vest a right of absence in the defendant. See also State v. Hartfield, 9 Kan. App. 2d 156, 162, 676 P.2d 141 (1984), where this rule was discussed but found inapplicable to the facts at hand.
Since the appellant had no right to be absent from trial, the trial court did not err in requiring his presence in the courtroom for identification purposes. The motion for mistrial was properly denied.
The appellant next alleges the evidence was insufficient to support a conviction of aggravated robbery. Specifically, appellant contends the evidence was insufficient to show that he was armed with a dangerous weapon, as required for a conviction under K.S.A. 21-3427.
This contention centers, in part, upon the jury’s acquittal of the appellant on the charge of unlawful possession of a firearm. Although the two verdicts might seem inconsistent, a review of the record shows there was sufficient evidence to support the jury’s conviction of aggravated robbery.
When sufficiency of the evidence to support a conviction is challenged, the standard of review on appeal is whether the evidence, when viewed in a light most favorable to the prosecution, convinces the appellate court that a rational factfinder 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 the charge are sustained. State v. Zuniga, 237 Kan. 788, 794, 703 P.2d 805 (1985).
The robbery victim, Charles Heilman, testified he had an opportunity to observe the weapon for approximately fifteen seconds. He estimated the gun had a six-inch barrel but admitted he did not know its exact length. He further testified he would not have given the robber his property if he had not observed the gun.
Thus, there was clearly sufficient evidence upon which the jury could find the appellant was armed with a dangerous weapon and was guilty of aggravated robbery. The fact that this verdict seems inconsistent with the jury’s acquittal of the appellant on the firearm charge does not constitute a basis for a finding of reversible error. As we have often held, a verdict, though inconsistent, is not erroneous if there is sufficient competent evidence to support it. State v. Wise, 237 Kan. 117, 122, 697 P.2d 1295 (1985).
Appellant’s final point on appeal is that the trial court erred in denying his motion for a new trial. Appellant fails to allege any basis for his argument that the trial court abused its discretion in denying him a new trial.
The motion for a new trial filed with the trial court asserted the court erred in not granting appellant’s motion for a mistrial and also challenged the sufficiency of the evidence to support the verdict. These points have already been addressed in our discussion of issues II and III and need not be repeated here. The trial court did not err in denying appellant’s motion for new trial.
The judgment of the trial court is affirmed.
Miller and Lockett, J.J., concur in the result. | [
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|
The opinion of the court was delivered by
Prager, J.:
This is a direct appeal by the defendant, Allen D. Armstrong, from a jury trial conviction on one count of aggravated indecent liberties with a child (K.S.A. 1983 Supp. 21-3504). Defendant Armstrong was originally charged with two counts, each involving an alleged sexual molestation of his ten-year-old daughter. He was acquitted on Count I and convicted on Count II and has appealed that conviction.
Count I of the original complaint charged a lewd touching which allegedly occurred on April 27,1984, in defendant’s motor vehicle. Count II charged defendant with another act which allegedly occurred at the defendant’s house on the same day. A preliminary examination was held on July 10,1984. After hearing the evidence, the court, upon motion of the prosecution, permitted the information to be amended by interlineation to change the date of the offense alleged in each count to conform with the preliminary hearing evidence. As to Count II, the amendment permitted the prosecution to allege that the incident at defendant’s house occurred on or about a period from November 1, 1983, to March 31, 1984. Thereafter, defense counsel filed a motion for a bill of particulars requesting the “exact time and date of the occurrence and its duration,” the “exact street address and physical description of the location or locations of the occurrence,” and the “particular acts allegedly committed by the defendant which constitute the offense charged.” The district court denied the motion for a bill of particulars. The case then proceeded to trial. The defendant’s daughter testified as to acts of molestation both in defendant’s vehicle and at the defendant’s house. The defendant denied participation in any such acts. The jury brought in a verdict in favor of the defendant on Count I and convicted the defendant on Count II, which involved the sexual acts committed at the defendant’s house. The defendant appealed.
The first issue raised on the appeal is that the trial court erred in allowing the State to amend the information after preliminary hearing. Any argument in regard to Count I of the information is moot because defendant was acquitted on Count I. As noted above, the amendments as to Count II involved the incident which occurred at defendant’s house. The. complaint/information originally alleged the crime occurred on April 27, 1984. After the testimony at the preliminary hearing, the complaint was amended to allege that the incident occurred some time between November 1, 1983, and March 31, 1984. On October 15, 1984, defendant filed a notice of alibi defense pursuant to K.S.A. 22-3218 and listed witnesses the defense would call in support of such defense. Defendant objected to the amendment on the basis that he was denied an alibi defense by reason of the amendment. We find no error.
K.S.A. 1984 Supp. 22-3201(4) provides:
“(4) The court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.”
In State v. Osburn, 216 Kan. 638, 641, 533 P.2d 1229 (1975), this court stated:
“The decisions of this court support the rule that prior to the commencement of the trial the prosecutor should be given a wide discretion in amending the original information. We have consistently held that 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. (State v. Morris, 131 Kan. 282, 291 Pac. 742; State v. Hobl, 108 Kan. 261, 194 Pac. 921.) Our cases distinguish between amendments before trial and those which are made during the course of the trial. (State v. Eye, 161 Kan. 69, 166 P.2d 572.) In permitting the state to amend an information the courts have been careful to protect the rights of the defendant so that his defense will not be prejudiced by the amendment.” 216 Kan. at 641.
In State v. Wonser, 217 Kan. 406, 537 P.2d 197 (1975), the defendant was convicted of indecent liberties with a child. The information alleged the crime was committed “sometime during the first part of August 1972.” Defendant contended the failure to give a definite date and time for the alleged offense deprived him of his Sixth Amendment constitutional right to know the nature and cause of any accusations brought against him. The court opinion stated:
“This court has held on numerous occasions that the precise time of the commission of an offense need not be stated in the indictment or information. Except where the time is an indispensable ingredient of the offense, it is sufficient if shown to have been within the statute of limitations. (State v. Bowman, 106 Kan. 430, 188 Pac. 242; State v. Freeman, 143 Kan. 315, 55 P.2d 362; State v. Thomas, 177 Kan. 230, 277 P.2d 577.) Time was not an indispensable ingredient of the crime charged and the crime was shown to have been well within the statute of limitations. Time had nothing to do with the nature and cause of the accusation.” 217 Kan. at 407.
In State v. Kilpatrick, 2 Kan. App. 2d 349, 352, 578 P.2d 1147 (1978), the defendant appealed his two convictions of indecent liberties with a child. Defendant urged error in the information because it failed to specify a particular date, other than December 1975, for one of the incidents. The Court of Appeals relied on Wonser, stating that, because time is not an indispensable ingredient of the offense of indecent liberties with a child, the precise time need not be stated in the indictment or information and it is sufficient if it can be shown the time of the offense was within the statute of limitations. In this regard see also State v. Sisson, 217 Kan. 475, 536 P.2d 1369 (1975); State v. Jones 204 Kan. 719, 466 P.2d 283 (1970); and State v. Aldrich, 232 Kan. 783, 658 P.2d 1027, cert. denied 462 U.S. 1136 (1983).
Under the factual circumstances in the present case, we have no hesitancy in holding that the amendment of Count II as to the date of the offense did not come as a surprise to defendant and the rights of the defendant were not prejudiced thereby. Here, the State amended the information following the preliminary hearing. The amendment expanded the time span in which the alleged crime occurred from a specific date to a five-month span, November 1, 1983, to March 31,1984. The amendment was filed July 10, 1984, approximately three months before trial commenced on October 24, 1984, and could not have surprised defendant or prejudiced his substantial rights. Defendant’s notice of alibi was filed after the amendment. We hold that the trial court did not err in permitting the amendment to the information.
The defendant’s second point raised on the appeal is’that the trial court erred in denying defendant’s motion for a bill of particulars. In his motion, the defendant requested, among other things, the exact time and date of the occurrence and its duration. This motion was overruled. We hold that the trial court did not err in its ruling. This case is governed by our decision in State v. Myatt, 237 Kan. 17, 28-29, 697 P.2d 836 (1985). In that case, this court pointed out that where a prosecution involving indecent liberties with a child does not commence promptly after the alleged commission of an offense or the event is not otherwise brought to the public notice, it is not unusual for uncertainty as to dates to appear, particularly when the memories of children are involved.
The defendant in Myatt argued that the denial of a bill of particulars stating the exact time of the offense impaired his ability to prepare an alibi defense. The court in the opinion stated that a bill of particulars would serve no useful purpose. The evidence at the preliminary examination raised the possibility that the offense had occurred in mid-September of 1982. The court quoted from State v. Hill, 211 Kan. 287, Syl. ¶ 9, 507 P.2d 342 (1973), which stated:
“When charges in the information are clarified by facts brought out at the preliminary hearing there is no need for amplification by a bill of particulars, absent a showing of surprise or prejudice.”
In the present case, we have concluded that a bill of particulars would serve no useful purpose because the State could only establish an approximate date when the incident occurred. The victim was just eleven years old a month before the preliminary hearing. When describing the incident occurring under Count II, she did not remember the exact date but she did remember it was at the same house where defendant was living in April 1984. The victim’s mother testified defendant had lived at that particular address approximately six months before April.
Because tifne is not an essential element of the offense of indecent liberties with a child and the State could only establish an approximate time for the offense which was brought out at the preliminary hearing, we cannot say that the defendant was surprised at the trial or that his rights were in any way prejudiced. The trial court did not err in overruling the motion for a bill of particulars.
The third point on the appeal is that the trial court erred in its instructions to the jury on aggravated indecent liberties with a child. The elements instruction given by the trial court on Count II required the State to prove the following elements:
“(1) [D]efendant is the parent of [the victim];
“(2) she was not married to defendant;
“(3) she was under 16 years of age;
“(4) there was lewd fondling or touching of the person of either the child or the defendant, or both; done, or submitted to, with the intent to arouse or to satisfy the sexual desires of either the defendant, or the child, or both; and
“(5) these events occurred in Sedgwick County, Kansas.
“The time covered by these claims is approximately November 1, 1983, through March 31, 1984.”
Defendant’s complaint is that the court did not include time as an element of the defense. The instruction as originally prepared by the court stated as follows:
“5. [T]hese events occurred in Sedgwick County, Kansas, within 2 years before July 10, 1984 (the date the information was filed in this case). The time covered by these claims is approximately November 1, 1983, through March 31, 1984.”
During the conference on instructions, defense counsel stated that he agreed with the time stated at the bottom of the instruction but objected to the statement the incident occurred within two years of the date the information was filed. The trial court then removed from paragraph 5 the words “within 2 years before July 10, 1984 (the date the information was filed in this case).”
We find no error. A trial court has discretion in giving instruc tions to the jury, and, on appeal, the instructions should be approved if, after being considered in their entirety, they properly and fairly state the law as applied to the facts in the case. State v. Smith, 232 Kan. 284, 290, 654 P.2d 929 (1982).
In State v. Dubish, 234 Kan. 708, 716, 675 P.2d 877 (1984), it was held that in charging the jury in a criminal case, it is the duty of the trial court to define the offense charged, stating to the jury the essential elements of the crime either in the language of the statute or in appropriate and accurate language of the court. In the present case, the instruction, as given, used the same dates for the crime as those contained in the amended information. Likewise, the testimony from the victim was consistent with the dates contained in the information and instructions. Although the instruction might well have been couched in the language of PIK Crim. 2d 57.08 that the act occurred on or about the dates specified, we cannot say that the trial court erred or that the defendant was in any way prejudiced by the failure to do so.
The final point raised by defendant on the appeal is that the trial court erred in refusing to dismiss the two counts because K.S.A. 1983 Supp. 21-3504, the statute on which the charges were based, was repealed by the 1984 legislature. This argument arises out of certain amendments to the statute covering indecent liberties by a parent with his child which occurred during 1983 and 1984. Prior to July 1,1983, the most serious offense for which a parent could be charged who lewdly fondled or touched the body of his child under the age of sixteen years was indecent liberties with a child (K.S.A. 21-3503[l][b], a Class C felony. The more serious offense of indecent liberties with a ward under K.S.A. 21-3504 was a Class B felony, if such acts were committed by one in whose charge the child had been entrusted by any official agency acting under color of law, but did not include parents within the prohibited class. (K.S.A. 21-3504 [a], [b]).
In 1983, the legislature amended both of those statutes, effective July 1, 1983, and in doing so, repealed both of the original versions of those laws. The changes found in K.S.A. 1983 Supp. 21-3503 were mainly cosmetic, except for the collateral expansion of the definition of “sexual intercourse” in K.S.A. 1983 Supp. 21-3501(1), which charges were not relevant to the charges against this defendant. However, the change which appeared in K.S.A. 1983 Supp. 21-3504(l)(a) significantly affected this de fendant. Effective July 1, 1983, that statute was amended to include parents in the class of individuals punishable for those acts and the offense was made a Class B felony. The crime was titled aggravated indecent liberties with a child.
The crime for which this defendant was convicted occurred between November 1, 1983, and March 31, 1984, while these 1983 enactments were effective. Prior to the defendant’s trial, the 1984 legislature amended the statutes. The new version of 21-3504 was changed to delete parents and certain other relatives from prosecution for such prohibited acts after July 1, 1984. The crime of aggravated incest under K.S.A. 1984 Supp. 21-3603(2)(b) was amended to prohibit lewd fondling or touching of a child under the age of eighteen years by certain listed relatives, including a parent. Aggravated incest was made a Class D felony. As noted above, these amendments were made and became effective July 1, 1984, and were in effect at the time the defendant was convicted on October 29, 1984.
Simply stated, prior to July 1, 1983, the crime of indecent liberties with a child by a parent was a Class C felony. From July 1, 1983, to July 1, 1984, during which period the offense was committed in this case, the crime was made a Class B felony. After July 1, 1984, the crime became a Class D felony. The defendant, in effect, requested the court to apply retroactively the 1984 aggravated iricest statute because that offense was now only a Class D felony. In other words, the defendant wanted to take advantage of the 1984 amendments.
The rules of construction regarding cases where a criminal statute is repealed and reenacted in modified form after the prohibited act was committed and before final judgment were throughly discussed in City of Kansas City v. Griffin, 233 Kan. 685, 664 P.2d 865 (1983). That case holds that the outright repeal of a criminal statute without a savings clause bars prosecutions for violation of the former statute committed prior to repeal. However, repeals by implication are not favored, and where a new statute is passed in a field already occupied by an older statute, the new enactment will not be held to have repealed by implication the old statute as to crimes already committed at the time the new statute is passed. Where there is an outright repeal and a substantial reenactment, it will be presumed that the legislature did not intend that there should be a remission of crimes not reduced to final judgment.
In Griffin, the court construed K.S.A. 77-201 as a general savings statute, preserving all rights and remedies under a repealed statute when the repealing statute is silent as to whether such rights and remedies shall be abrogated or not. The holding in Griffin is consistent with prior holdings of this court. See State v. Hutchison, 228 Kan. 279, 287, 615 P.2d 138 (1980); and State v. Augustine, 197 Kan. 207, 210, 416 P.2d 281 (1966), both of which hold, in substance, that ordinarily the criminal statute and penalty in effect at the time the criminal offense was committed is controlling. We hold that the trial court did not err in refusing to dismiss the prosecution against the defendant for indecent liberties with a child because of the statutory changes in 1984.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
McFarland, J.:
Plaintiff Sutter Brothers Construction Co., Inc., brings this action against the defendant City of Leavenworth seeking damages arising from the municipality’s failure to award plaintiff a highway construction contract. The district court entered summary judgment in favor of the defendant on the basis of governmental tort immunity and plaintiff appeals therefrom.
The pertinent facts are as follows: In 1982 the City solicited bids for construction of a highway project known as the Northeast Leavenworth Infrastructure. Prospective bidders were advised that compliance with the City’s equal opportunity and affirmative action program as set forth in Leavenworth, Kansas, Resolution B 321 (June 8, 1976) was a condition of bidding. As provided for in the resolution, a set of forms to be filled out or answered by prospective bidders was submitted to plaintiff. Accompanying plaintiff s submitted bid was its narrative statement titled “Equal Employment Opportunity Policy and Affirmative Action Plan.” The statement so submitted was not in the question and answer format contemplated by the official forms (and Resolution B 321) and did not contain all the information required. Resolution B 321 authorizes modification of a submitted affirmative action program by bidders prior to awarding of contracts to make the bidder’s program conform to the requirements of the Resolution.
The bids on the highway project were opened on August 31, 1982. On September 10, 1982, a letter was sent to plaintiff by defendant’s city manager advising plaintiff that its bid of $263,905.50 made it the apparent low bidder on the project, but that plaintiffs affirmative action plan (submitted with its bid) was deficient in numerous listed areas. Further, the city manager advised that, by virtue of said deficiencies, he would recommend at the September 14, 1982, city commission meeting that the contract be awarded to the second lowest bidder (Julius Kaaz Construction with a bid of $283,170.65). Plaintiff appeared by counsel at the September 14 meeting. At that time the contract was awarded to the second lowest bidder.
On November 18, 1982, plaintiff filed this action seeking damages for the City’s failure to award the contract to plaintiff as the lowest responsible bidder, contrary to K.S.A. 13-1017. The district court entered summary judgment in favor of defendant on the basis of governmental immunity under the Kansas Tort Claims Act (K.S.A. 75-6101 et seq.). Plaintiff appeals therefrom.
Numerous issues are raised by the plaintiff relative to the propriety of what transpired in the district court, including the timeliness of the City’s raising of the immunity defense and the propriety of the legal basis for the immunity determination. There is a fundamental issue inherent in this appeal which must be determined first.
As will be recalled, this is an action at law by an unsuccessful bidder on a municipal public works project seeking damages for the municipality’s failure to award the contract to plaintiff as the alleged lowest responsible bidder, contrary to K.S.A. 13-1017. Said statute provides in pertinent part:
“Before undertaking the construction or reconstruction of any sidewalk, curb, gutter, bridge, pavement, sewer or any other public improvement of any street, highway, public grounds or public building or facility, or any other kind of public improvement in any city of the first class is commenced or ordered by the governing body, or under its authority, a detailed estimate of the cost of the improvements shall be made under oath by the city engineer (or some other competent person, appointed for such purposes by the governing body). Such estimate shall be submitted to the governing body for its action thereon. In all cases where the estimated cost of the contemplated building, facility or other improvement amounts to more than $2,000, sealed proposals for the improvement shall be invited by advertisement, published by the city clerk once in the official city paper. The governing body shall let all such work by contract to the lowest responsible bidder, if there is any whose bid does not exceed the estimate.
“If no responsible person proposes to enter into the contract at a price not exceeding the estimated cost, all bids shall be rejected and the same proceedings as before repeated, until some responsible person by sealed proposal offers to contract for the work at a price not exceeding the estimated cost.” (Emphasis supplied.)
It is the City’s position that the material submitted by the plaintiff relative to its equal employment and affirmative action program was so unresponsive to the requirements of Resolution B 321 as to be the equivalent of the submission of no program at all. Therefore, the City reasons plaintiff was not the lowest responsible bidder and was not entitled to make modifications in its program as permitted by Resolution B 321. Plaintiff contends it should have been permitted to make any necessary modifications and that it was, in fact, the lowest responsible bidder. The contract in question had been awarded to the second lowest bidder, and the contract executed, before this action was commenced. In this action plaintiff does not seek to enjoin the award or issuance of the contract, to require new bids be submitted, or to be awarded the contract. Rather, plaintiff seeks only damages sustained by it as the result of not receiving the contract. There is no allegation of fraud or other independent tort in this action— the action is predicated solely on alleged violation of K.S.A. 13-1017.
This brings us to the fundamental question. Does an apparent low bidder, who is not awarded a public works project, have a cause of action at law for damages predicated solely upon alleged violation of K.S.A. 13-1017, or is the remedy limited to an equitable action to enjoin the public body from awarding or entering into a contract with another? This issue was specifically raised and briefed in the district court by defendant City. The district court dismissed the issue with the comment:
“Perhaps ... an injunction action might have been a preferable route of litigation, but that is not the way the case now presents itself.”
This question is not expressly made an appellate issue, but it is so inherently fundamental to the case that it must be addressed.
We must first determine the purpose of K.S.A. 13-1017. Is it to protect the public or the bidders on public works projects? Does it create a cause of action at law for damages for unsuccessful bidders? If not, what relief, if any, is available to unsuccessful bidders?
In Surety Co. v. Brick Co., 73 Kan. 196, 84 Pac. 1034 (1906), a statute similar to K.S.A. 13-1017 was before the court for consideration. The statute was Section 747 of the General Statutes of 1901, which provided:
“Before the building of any bridge or sidewalk, or any work on any street, or any other kind of work or improvement, shall be commenced by the city council, or under their authority, a detailed estimate of the cost thereof shall be made under oath by the city engineer and submitted to the council; and in all cases where the estimated cost of the contemplated work or improvement amounts to one hundred dollars, sealed proposals for the doing or making thereof shall be invited by advertisement, published by the city clerk in the official newspaper of the city for at least three consecutive days, and the mayor and council shall let the work by contract to the lowest responsible bidder, if there be any such whose bid does not exceed the estimate.” (Emphasis supplied.)
The court held:
“The object and purpose of this provision of the statute is to insure competition in the letting of contracts for public improvements. This is the uniform ruling of courts in reference to similar statutory and charter provisions governing cities. [Citations omitted.]” 73 Kan. at 203.
Further,
“[T]he intention [of the statute] was to protect the taxpayer and the public — not material-men and laborers.” 73 Kan. at 208.
64 Am. Jur. 2d, Public Works and Contracts § 86, pp. 947-48, states:
“It is the acceptance, and not the tender, of a bid for public work which constitutes the contract, and it follows, therefore, that the mere submission of the lowest bid in answer to an advertisement for bids for public work cannot be the foundation of an action for damages based upon the refusal or failure of public authorities to accept such bid, and this is true although a statute requires the contract to be let to the lowest bidder, where the advertisement reserves the right to reject any and all bids. So, when a public official in good faith refuses to award a contract, the bidder has no right of action against him for damages, although his bid is the lowest, and it has been held that no right of action exists even though the public authorities acted maliciously.
“A bidder for public work cannot base a right of action for damages against the public body, upon a statutory requirement that contracts for the performance of public work shall be let to the lowest bidder, and cannot recover lost profits in case the contract is, contrary to the statute, awarded to a higher bidder. Such a statutory provision, enacted as a protection to the public, cannot be used to make disobedience of its provisions by public officers a double source of punishment to the public body; if the low bidder is permitted to maintain such an action then this obedience of the statute would make the public body pay the difference between the lowest bid and the bid for which the contract was made, and also the profit that the lowest responsible bidder would have made if the statute had not been violated.
“Many cases, however, take the position that if a binding agreement came into existence when the award was made, the public body cannot revoke the award. Accordingly, there are numerous instances in which a bidder’s right to recover damages for the breach of contract inherent in the public body’s attempted revocation of the prior award is upheld. Thus, the right of a bidder to sue for damages for the rejection of his bid is to be distinguished from his right to maintain an action for damages for the failure or refusal of public authorities, after the acceptance of his bid, to execute the contract to carry out its terms. But where a statute requires the execution of a formal contract, a successful bidder has no right of action for breach of contract until the contract has been executed.” (Emphasis supplied.)
64 Am. Jur. 2d, Public Works and Contracts § 87, pp. 948-49, states:
“Public authorities are generally vested with a wide discretion in determining who is the lowest responsible bidder, and indeed, usually are vested with power to reject all bids and ask for new ones, and while doubtless the courts will interfere with an arbitrary or dishonest exercise of that discretion by preventing the award of a contract to one who upon the basis of his bid is not legally entitled thereto, as a general rule a bidder, though his bid may be the lowest submitted, and he may be a reliable and responsible contractor, cannot by judicial action compel the public authorities to award the contract to him or otherwise found an action in his own right upon the denial of the contract to him.
“The principle that where a duty is imposed for the benefit of one person or class of persons, and another’s advantage from its discharge is merely incidental, and not a part of the design of the statute, no such right is created in favor of the latter as forms the subject of an action at law or of a suit in equity, is fatal to the right of the lowest bidder to any relief, either in law or equity, for failure of the authorities to award him the contract, or to prevent the contract’s being awarded to another. It goes not to defeat any particular cause of action, but to defeat the right to any relief. However, there are some cases — mainly cases in which the law requires, without qualification, that contracts for such work be let to the lowest bidder — affirming the right of the lowest bidder for public work to seek the aid of the court to compel protection under his bid.
“The Federal Regulations provide for protests against awards.” (Emphasis supplied.)
We turn now to case law from other jurisdictions.
In Swinerton & Walberg Co. v. City of Inglewood-L.A. County Civic Center Authority, 40 Cal. App. 3d 98, 114 Cal. Rptr. 834 (1974), it was held that statutory requirements that public contracts be awarded to the lowest qualified bidder are imposed solely for the benefit and protection of the public rather than for the benefit of the bidder so that award by a public entity of a public works contract to one other than the lowest responsible bidder does not give to the latter a cause of action in tort for monetary damages against the public entity.
In Gulf Oil Corp. v. Clark County, 94 Nev. 116, 575 P.2d 1332 (1978), the Nevada Supreme Court had before it an action by an unsuccessful public works bidder seeking damages for failure to be awarded a contract. The court held:
“[A] bid in response to a solicitation therefor constitutes no more than an offer and until its acceptance, a contract does not exist. [Citation omitted.] The purpose of bidding is to secure competition, save public funds, and to guard against favoritism, improvidence and corruption. Such statutes are deemed to be for the benefit of the taxpayers and not the bidders, and are to be construed for the public good.
“Although the lowest responsible bidder may have standing to timely challenge the rejection of his bid and to compel the award of the contract to him ... it does not follow that such bidder may recover damages after the project has been completed by the contractor whose bid was accepted.” 94 Nev. at 118-19.
The court’s rationale, in part, was as follows:
“Although the lowest responsible bidder may have standing to timely challenge the rejection of his bid and to compel the award of the contract to him ... it does not follow that such bidder may recover damages after the project has been completed by the contractor whose bid was accepted. A timely challenge is compatible with the public interest since it serves to force compliance with the purpose of the bidding procedure. After the project is completed, however, it is difficult to perceive how the public interest is served by investing the low bidder with a cause of action for damages. The public already has paid the difference between the lowest bid and the bid which was accepted. The taxpayer should not further be penalized.” 94 Nev. at 119.
A case which warrants discussion in some depth is Funderburg Bldrs. v. Abbeville Cty. Mem. Hosp., 467 F. Supp. 821 (D. S.C. 1979), as it contains a good summary of the applicable case law and rests on a sound rationale. In Funderburg, plaintiff brought an action to enjoin the defendants from awarding a construction contract to any entity other than plaintiff. The contract was subject to a competitive bidding statute mandating the contract be awarded to the lowest responsible bidder. In permitting the injunction action, the court in Funderburg reasoned as follows:
“[T]he Hospital questions the standing of a disappointed bidder to sue under competitive bidding statutes. Clearly the statutes were enacted for the benefit of the public, whose funds finance the project. Indeed, some courts have held that the statutes create no justiciable rights in those who submit bids. Joseph Rugs, Inc. v. Henson, 190 F. Supp. 281 (D. Conn. 1960). However, this Court thinks the better view is that the lowest responsible bidder should have access to equitable relief under the statutes. Scanwell Laboratories Inc. v. Shaffer, 137 U.S. App. D.C. 371, 424 F.2d 859 (1970); Richardson Engineering Co. v. Rutgers State University, 51 N.J. 207, 238 A.2d 673 (1968); Quincy Ornamental Iron Works, Inc. v. Findlen, 353 Mass. 85, 228 N.E.2d 453 (1967); Sternberg v. Board of Commissioners of Tangipahoa Drainage Dist. No. 1, 159 La. 360, 105 So. 372 (1925). See Carpet City, Inc. v. Stillwater Municipal Hospital Authority, 536 P.2d 335 (Okl. 1975); City of Phoenix v. Wittman Contracting Co.; 20 Ariz. App. 1, 509 P.2d 1038 (1973); City of Inglewood v. Superior Court, 7 Cal. 3d 861, 103 Cal. Rptr. 689, 500 P.2d 601 (1972); Cf. Gulf Oil Corp. v. Clark County, 575 P.2d 1332 (Nev. 1978). As the court in Scanwell Laboratories, supra, reasoned, it would be straining the artificiality of standing beyond its limits to deny judicial review to one who is seriously harmed by an illegal action.” 467 F. Supp. at 823-24.
Continuing:
“Injunction and mandamus are the proper remedies to compel compliance with public contract award procedures. Carpet City, Inc. v. Stillwater Municipal Hospital Authority, 536 P.2d 335 (Okl. 1975); Federal Electric Corp. v. Fasi, 527 P.2d 1284 (Haw. 1974); City of Phoenix v. Wittman Contracting Co., 20 Ariz. App. 1, 509 P.2d 1038 (1973); City of Inglewood v. Superior Court, 7 Cal. 3d 861, 103 Cal. Rptr. 689, 500 P.2d 601 (1972); Cf. Gulf Oil Corp. v. Clark County, 575 P.2d 1332 (Nev. 1978). In the present case, it is clear that an injunction and declaratory judgment are the only adequate means of protecting the public interest, the integrity of the competitive bidding process, and the rights of the individual bidder. If the Hospital is allowed to proceed with award to other than the lowest responsible, responsive bidder, Funderburg, the public has no legal remedy for the senseless and unlawful waste of public funds. Moreover, if it is learned that Abbeville County is not required to comply with statutory requirements and its own representations that it will award to the lowest responsible bidder, competition for county [projects] will no longer receive the benefit of the lowest competitive price.
“Finally, it is clear that Funderburg has no adequate remedy if the contract is wrongfully awarded to other than the lowest responsible bidder. It is well recognized that a construction contractor must bid on a number of jobs in order to submit the lowest bid on one and that the contractor must depend on the limited number of jobs it wins not only to earn a profit but also to absorb the cost of maintaining its organization and even to keep its organization together. For a contractor to arbitrarily be deprived of one of the jobs on which it is the lowest responsible bidder, not only deprives it of anticipated profit but also throws an undue overhead burden on the remainder of the contractor’s work and may cause the contractor to lose key field personnel that it cannot readily employ. Nevertheless, notwithstanding this severe adverse impact, it has been uniformly held that a disappointed bidder may not recover even its anticipated profits. [Citations omitted.] It is this clear lack of an adequate legal remedy that will dissuade contractors from competing where competitive bidding procedures are not equitably enforced.” 467 F.Supp. at 825.
In the case before us, plaintiff did not commence its action until November 18, 1982 — long after the contract had been awarded to the second lowest bidder and the contract executed. Plaintiff is not seeking to interfere with awarding of the contract or to have the contract awarded to itself. Rather, plaintiff seeks only damages for not having been awarded the contract. The City, then, would have no opportunity to correct any problems in the handling of the bidding that might be established in order to comply with the requirement of K.S.A. 13-1017. Assuming the City did err in awarding the contract to the second lowest bidder and paid approximately $20,000 too much for the work, how is the public interest served by awarding lost profits to the plaintiff? This would only add to the public’s cost for the project.
After having carefully considered the matter, we conclude:
1. A bid in response to a solicitation constitutes no more than an offer and, until its acceptance, a contract does not exist.
2. The purpose of K.S.A. 13-1017, the competitive bidding statute applicable to cities of the first class, is the protection of the public rather than the bidders thereunder. Particularly, the statute is intended to save public funds and to guard against favoritism, improvidence and corruption.
3. An unsuccessful bidder on a public works project may not predicate a cause of action for damages against a public body solely upon an alleged violation of K.S.A. 13-1017. An unsuccessful bidder’s remedy is to seek injunctive relief preventing the award of the contract to one not legally entitled thereto.
The defendant City was clearly entitled to summary judgment entered in its favor in accordance with the rationale herein set forth. The district court entered summary judgment in favor of the defendant City on the basis of governmental immunity under the Kansas Tort Claims Act, K.S.A. 75-6101 et seq. The judgment of a trial court, if correct, is to be upheld, even though the court may have relied upon a wrong ground or assigned an erroneous reason for its decision. State v. Durst, 235 Kan. 62, 69, 678 P.2d 1126 (1984); Farmers State Bank v. Cooper, 227 Kan. 547, 556, 608 P.2d 929 (1980); Pierce v. Board of County Commissioners, 200 Kan. 74, 81, 434 P.2d 858 (1967); Vap v. Diamond Oil Producers, Inc., 9 Kan. App. 2d 58, Syl. ¶ 6, 671 P.2d 1126 (1983). The judgment of the district court must, accordingly, be affirmed.
By virtue of the result herein, other issues raised need not be addressed.
The judgment is affirmed. | [
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The opinion of the court was delivered by
McFarland, J.:
This is an action by a beneficiary seeking to collect under accidental death double indemnity provisions in two life insurance policies. The trial court held in favor of the defendant insurance company and plaintiff appeals therefrom.
One of the issues before the trial court was whether or not the insured died as the result of an accident. The trial court found that the death was the result of an accident. This finding is not challenged on appeal. The pertinent facts may be summarized as follows. In December 1980, two events of significance occurred to the insured, Wardlow Hawes. He sustained a deep cut on a hand which was slow to heal. Concurrent with the healing process, the insured was treating his cattle for shipping fever. The method of treatment for the cattle involved was innoculating them with the antibiotic Tevcocin. While treating his cattle, the insured spilled some of the antibiotic on his hands.
In mid-March 1981, the insured became ill and was diagnosed as having aplastic anemia. The antibiotic Tevcocin contains Chloramphenicol, a substance which can cause aplastic anemia in the human species if introduced into the body. The insured died of aplastic anemia on September 4, 1981. For appeal purposes it is undisputed that the decedent acquired aplastic anemia by accidental means — the spilling of the antibiotic on his cut hand no later than February 1981 (the last time period the drug was used).
At all relevant times, Mr. Hawes was the insured under two life insurance policies issued by defendant Kansas Farm Bureau Life Insurance, Inc. Each of the policies contained accidental death double indemnity provisions which provided:
“The company will pay the benefit amount set forth in the Schedule of Additional Benefits on page three of this policy, subject to all provisions of this policy and other conditions hereunder, upon receipt of due proof that the death of the Insured resulted, directly and independently of all other causes, from accidental bodily injury as evidenced by a visible contusion or wound on the exterior of the body (except in the case of drowning or internal injuries revealed by an autopsy) and that such death occurred while this policy and this rider were in full force and effect and within ninety days from the date of such injury. Such amount will be paid to the Beneficiary or Beneficiaries in addition to any amount which may otherwise be due and in the same manner as the other proceeds of this policy exclusive of the proceeds of any other rider or riders attached thereto.” (Emphasis supplied.)
It is undisputed that the insured’s death occurred more than ninety days after the last possible accidental exposure to the drug. Defendant insurance company paid the plaintiff beneficiary the face value of the policies (a total of $55,000). In this action the plaintiff seeks an additional $55,000 under the accidental death double indemnity riders to the policies.
Under the undisputed facts, plaintiff s claim is barred if the requirements in the double indemnity provisions that death occur within ninety days after the accidental injury are valid. Plaintiff s position is that the ninety-day requirement is invalid and unenforceable. Her challenge to the time restriction is predicated upon several grounds.
We shall first consider whether or not the time limitation is an unconscionable contract term. Plaintiff raises the issue in her brief but does not discuss the matter in any depth.
In Wille v. Southwestern Bell Tel. Co., 219 Kan. 755, 758-60, 549 P.2d 903 (1976), this court discussed the concept of unconscionability and the factors which go towards determining whether or not a contract is unconscionable. The court in Wille stated as follows:
“Although the doctrine of unconscionability-is difficult to define precisely courts have identified a number of factors or elements as aids for determining its applicability to a given set of facts. These factors include: (1) The use of printed form or boilerplate contracts drawn skillfully by the party in the strongest economic position, which establish industry wide standards offered on a take it or leave it basis to the party in a weaker economic position (Henningsen v. Bloomfield Motors, Inc., [32 N J. 358, 161 A.2d 69 (1960)], Campbell Soup Co. v. Wentz, 172 F.2d 80); (2) a significant cost-price disparity or excessive price; (3) a denial of basic rights and remedies to a buyer of consumer goods (Williams v. Walker-Thomas Furniture Company, 350 F.2d 445; 18 ALR 3d 1305); (4) the inclusion of penalty clauses; (5) the circumstances surrounding the execution of the contract, including its commercial setting, its purpose and actual effect (In re Elkins-Dell Manufacturing Company, 253 F. Supp. 864, [E.D. Pa.]); (6) the hiding of clauses which are disadvantageous to one party in a mass of fine print trivia or in places which are inconspicuous to the party signing the contract (Henningsen v. Bloomfield Motors, Inc., supra); (7) phrasing clauses in language that is incomprehensible to a layman or that divert his attention from the problems raised by them or the rights given up through them; (8) an overall imbalance in the obligations and rights imposed by the bargain; (9) exploitation of the underprivileged, unsophisticated, uneducated and the illiterate (Williams v. Walker-Thomas Furniture Company, supra); and (10) inequality of bargaining or economic power. (See also Ellinghaus, ‘In Defense of Unconscionability’, 78 Yale L. J. 757; 1 Anderson on the UCC, § 2-302, and cases cited therein.)
“Important to this case is the concept of inequality of bargaining power. The UCC does not require that there be complete equality of bargaining power or that the agreement be equally beneficial to both parties (1 Anderson, § 2-302:11, p. 401). As has been pointed out:
“ ‘[The language of the comment to § 2-302 means] . . . that mere disparity of bargaining strength, without more, is not enough to make out a case of unconscionability. Just because the contract I signed was proffered to me by Almighty Monopoly Incorporated does not mean that I may subsequently argue exemption from any or all obligation: at the very least, some element of deception or substantive unfairness must presumably be shown.’ (78 Yale L. J., supra, pp. 766-767.)
“The cases seem to support the view that there must be additional factors such as deceptive bargaining conduct as well as unequal bargaining power to render the contract between the parties unconscionable. In summary, the doctrine of unconscionability is used by the courts to police the excesses of certain parties who abuse their right to contract freely. It is directed against one-sided, oppressive and unfairly surprising contracts, and not against the consequences per se of uneven bargaining power or even a simple old-fashioned bad bargain (1 Anderson, supra, § 2-302.11, p. 401).” 219 Kan. at 758-60.
See also Atkinson v. Orkin Exterminating Co., 5 Kan. App. 2d 739, 743, 625 P.2d 505 (1981), and Remco Enterprises, Inc. v. Houston, 9 Kan. App. 2d 296, 301, 677 P.2d 567 (1984).
Plaintiff does not cite nor has our research disclosed a single case from any jurisdiction where a time limitation requirement in a double indemnity rider has been invalidated on the basis of unconscionability. We conclude the concept of unconscionability is inapplicable to the issue before use.
The principal basis upon which plaintiff seeks to invalidate the time limitation contained in the double indemnity riders is her claim that such limitations are against the public policy of the State of Kansas.
Ninety-day or one-hundred-twenty-day limitations in accidental death double indemnity provisions appear to have been quite standard in life insurance policies for many years.
39 A.L.R. 3d 1311, Accident Insurance — Time Limitations, states at page 1313:
“Ordinary rules respecting the validity and construction of insurance contracts have been applied to the particular clauses which are considered in the present subject of annotation.
“Clauses limiting payments for accidental death or loss of a member to cases in which the death or loss occurred within a specified time after the accident have been uniformly upheld when attacked on the ground that they are unreasonable, unconscionable, or against public policy. They have also been upheld against contentions that they are ambiguous or that they conflict with other provisions of the policy, or with its general object and tenor.” (Emphasis supplied.)
This statement appears to be correct as of 1971, the date the book was published. A few jurisdictions deciding the issue after that date have held such time restrictions void as against public policy, usually based upon the particular facts presented. With this background, we turn to the specific public policy arguments presented by plaintiff herein.
Plaintiff argues that recent advances in medicine often result in the prolongation of life after accidental injury to such a degree that the ninety-day accidental death double indemnity limitation is no longer realistic and is against the public policy of Kansas. In support of her argument, she cites the Natural Death Act, K.S.A. 65-28,101 et seq. The legislative declaration relative to the act is contained in K.S.A. 65-28,101 as follows:
“The legislature finds that adult persons have the fundamental right to control the decisions relating to the rendering of their own medical care, including the decision to have life-sustaining procedures withheld or withdrawn in instances of a terminal condition.
“In order that the rights of patients may be respected even after they are no longer able to participate actively in decisions about themselves, the legislature hereby declares that the laws of this state shall recognize the right of an adult person to make a written declaration instructing his or her physician to withhold or withdraw life-sustaining procedures in the event of a terminal condition.”
K.S.A. 65-28,108 assures that a declaration under the Act shall not be considered a suicide, providing in part:
“(a) The withholding or withdrawal of life-sustaining procedures from a qualified patient in accordance with the provisions of this act shall not, for any purpose, constitute a suicide and shall not constitute the crime of assisting suicide as defined by K.S.A. 21-3406.
“(b) The making of a declaration pursuant to K.S.A. 65-28,103 shall not affect in any manner the sale, procurement, or issuance of any policy of life insurance, nor shall it be deemed to modify the terms of an existing policy of life insurance. No policy of life insurance shall be legally impaired or invalidated in any manner by the withholding or withdrawal of life-sustaining procedures from an insured qualified patient, notwithstanding any term of the policy to the contrary.”
The plaintiff argues that a person injured in an accident might base his or her decision not to seek life-sustaining procedures on the ninety-day accidental death double indemnity limitation in his or her life insurance policy and that this is against the clearly stated public policy contained in K.S.A. 65-28,101. This interpretation appears to broaden the public policy expressed in K.S.A. 65-28,101 into an area not encompassed by its limited purpose. The Natural Death Act gives a person a choice relative to the use of life-sustaining procedures if he or she has a terminal condition. Other than decreeing that the decision not to undergo such procedures shall not be considered a suicide for insurance or other purposes, it does not undertake to restrict the factors to be considered by the individual making the decision. There is nothing in the Act which indicates that by its passage the legislature intended to invalidate the time limitation requirements frequently contained in accidental death double indemnity provisions commonly found in life insurance policies. The same argument raised by plaintiff herein, if successful, could be used to nullify exclusions, limitation of covered services, etc., contained in medical and health care insurance policies and Medicare. Such result could have a devastating effect upon already beleaguered providers of such coverages and would undoubtedly raise the cost of future coverage still higher.
The few courts in other jurisdictions which have invalidated such limitations on public policy grounds have generally not done so on an across-the-board basis. Rather, the limitation is held not to be enforceable under the facts presented in the particular case.
Kirk v. Financial Security Life Ins. Co., 75 Ill. 2d 367, 27 Ill. Dec. 332, 389 N.E.2d 144 (1978), warrants close scrutiny. The insured, John Kirk, was severely injured in an automobile accident. Ninety-two days later Mr. Kirk died from his injuries. His life insurance policy had a ninety-day limit on the accidental death double indemnity benefit. Decedent’s widow challenged the denial of her double indemnity claim on the basis of public policy. The arguments made in Kirk are remarkably similar to those before us and the opinion of the Illinois Supreme Court contains an excellent summary of the applicable law. In Kirk, the court stated:
“The primary question posed is whether this unambiguous 90-day requirement violates Illinois public policy. Similar limitation periods appear in many life insurance policies and until very recently every jurisdiction faced with a challenge to these provisions had upheld them. (Contois v. State Mut. Life Assur. Co. (7th Cir. 1946), 156 F.2d 44, 46 (Ill.); Spaunhorst v. Equitable Life Assur. Soc. of United States (8th Cir. 1937), 88 F.2d 849, 851 (Mo.); Barnett v. Travelers’ Ins. Co. (8th Cir. 1929), 32 F.2d 479, 480 (Mo.); Kerns v. Aetna Life Ins. Co. (8th Cir. 1923), 291 F. 289, 290 (S.D.); Orrill v. Prudential Life Ins. Co. of America (N.D. Cal. 1942), 44 F. Supp. 902, 904; Brown v. United States Casualty Co. (N.D. Cal. 1899), 95 F. 935, 936; Bennett v. Life & Casualty Insurance Co. (1939), 60 Ga. App. 228, 3 S.E.2d 794, 795; Clarke v. Illinois Commercial Men’s Association (1913), 180 Ill. App. 300, 303; Hickey v. Washington National Insurance Co. (1939), 302 Ill. App. 388; Mullins v. National Casualty Co. (1938), 273 Ky. 686, 688-89, 117 S.W.2d 928, 930; Fontenot v. New York Life Insurance Co. (La. App. 1978), 357 So. 2d 1185, 1188; Drinan v. Clover Leaf Casualty Co. (1919), 207 Mich. 677, 679, 175 N.W. 176, 177; Hudson v. Mutual Ben. Health & Acc. Ass’n (Mo. App. 1944), 184 S.W.2d 188, 189; Weickselbaum v. Commercial Travelers Mut. Acc. Ass’n of America (Sup. Ct. Kings County 1954), 129 N.Y.S.2d 612, 612-13; Rhoades v. Equitable Life Assurance Society of the United States (1978), 54 Ohio St. 2d 45, 374 N.E.2d 643, 645; Douglas v. Southwestern Life Insurance Co. (Tex. Civ. App. 1964), 374 S.W.2d 788, 791; Crowe v. North American Acc. Ins. Co. (Tex. Civ. App. 1936), 96 S.W.2d 670, 671; 1A J.Appleman, Insurance sec. 612 (1965); Annot., 39 A.L.B.3d 1311 (1971).) Recently, at least two courts have held these provisions invalid on public policy grounds. Burne v. Franklin Life Insurance Co. (1973), 451 Pa. 218, 301 A.2d 799; Karl v. New York Life Insurance Co. (1977), 154 N J. Super. 182, 381 A.2d 62. [Actually, Karl was determined primarily on the basis óf an interpretation of the time limit as an ambiguous provision].
“Though this precise issue has not previously been addressed by this court, several Illinois appellate courts have approved this type of time limitation. . . .
“Until 1973 the Illinois cases reflected a unanimous rule. In that year the primary case relied on by the plaintiff, Burne v. Franklin Life Insurance Co., held that a 90-day time limitation for double indemnity accidental death benefits violated public policy. In Burne, the assured was kept alive 4 Vz years by sophisticated medical techniques. The insurer conceded that the sole cause of death was the accident, but argued that under the 90-day requirement the assured’s death was outside the policy. The Pennsylvania Supreme Court held that requirement invalid. First, the court noted that the leading cases were well before modern advances in medical science. (451 Pa. 218, 301 A.2d 799, 801.) Such advances had, in that court’s view, made the 90-day limit obsolete. Second, the court felt that extraneous matters, such as the eventual receipt of insurance proceeds, should not be a factor in the deliberations on whether and how to prolong life. (451 Pa. 218, 301 A.2d 799, 802.) Third, the court considered it fundamentally unjust to allow full recovery to a beneficiary who has endured little or no prolonged expense and anxiety, and yet allow no recovery for those who suffer the longest and endure the greatest expense. 451 Pa. 218, 301 A.2d 799, 801-02.
“In a similar case, a trial level court in New Jersey followed Burne and held both a 90-day and 120-day limitation invalid. (139 N.J. Super. 318,353 A.2d 564.) A New Jersey appellate court upheld that decision on the premise that the life policy’s underlying purposes would not be frustrated where it was conceded that the assured died as a result of the accident, albeit beyond the 90-day limit. 154 N.J. Super. 182, 381 A.2d 62.
“In contrast, the Ohio Supreme Court and Louisiana appellate court have recently rejected the policy arguments of Pennsylvania and New Jersey and upheld 90-day limitations. Rhoades v. Equitable Life Assurance Society of the United States (1978), 54 Ohio St. 2d 45, 374 N.E.2d 643, 645 n. 3; Fontenot v. New York Life Insurance Co. (La. App. 1978), 357 So. 2d 1185.
“The long line of authority supporting these time-limitations requirements in insurance policies, the recent departure from these holdings by the Pennsylvania Supreme Court in Burne and the New Jersey appellate court in Karl, and the subsequent rejection of Burne by the Ohio Supreme Court and Louisiana appellate court indicate that the issue is not one where there are clearly defined and objective rules and standards of public policy. This is not a matter where public policy is so clear that objective criteria compel us to hold the 90-day limitation invalid. Furthermore, public policy of a State or the nation is found imbedded in its constitution and its statutes, and, when these are silent on a subject, in the decisions of the courts. [Citations omitted.] The legislature has not been silent on the matter of public policy as it relates to the contents of insurance policies. The Director of the Department of Insurance is required by statute to review policies of insurance in certain categories and approve or disapprove them, based on criteria including the established public policy of this State. . . .
“Here, we may assume that the Financial Security Life insurance policy was approved pursuant to section 143 by the Department of Insurance. (Bernardini v. Home & Automobile Insurance Co. (1965), 64 Ill. App. 2d 465, 467.) ....
“The approval of the use of 90-day limitation periods in policies of insurance by the Department, although not conclusive upon the courts, is, however, entitled to great weight as against the contention that such a provision is against public policy. . . . The long-established approval of the usage of time limitations in insurance policies similar to that contained in the policy in question, in the absence of any action by the legislature countermanding the approval by the Director of such provisions, is strong evidence that the General Assembly does not consider the use of such limitation periods violative of public policy.
“That this 90-day provision is a matter best left to the legislature and Department of Insurance is clear from an analysis of the issues involved. While there may be valid reasons which support the validity of the decisions in Burne and Karl (see Note, Death Be Not Proud — The Demise of Double Indemnity Time Limitations, 23 DePaul L. Rev. 854 (1974)), there are numerous policy arguments favoring the 90-day limitation.
“It has been held in several cases that these provisions minimize uncertainty as to the cause of the assured’s death. (Clarke v. Illinois Commercial Men's Association (1913), 180 Ill. App. 300, 303; see also Fontenot v. New York Life Insurance Co. (La. App. 1978), 357 So. 2d 1185; Rhoades v. Equitable Life Assurance Society of the United States (1978), 54 Ohio St. 2d 45, 374 N.E.2d 643, 645.) Without the finality of a time limitation, the accompanying uncertainty as to the cause of death as the time between that event and the injury increases will spawn a substantial amount of litigation as beneficiaries attempt to establish some injury-connected cause of their insured decedent’s death.
“Also, several cases have acknowledged that these provisions reflect risk decisions. An insurance company sets policy rates based on the risks of recovery. As a consequence, the 90-day limitation, which clearly affects the risk, is reflected in the rate charged an assured. Thus, these cases hold, as a matter of contract law, that the assured is receiving what he has paid for. The limitation is thus reasonable as a reflection of the insurer’s risk. Shelton v. Equitable Life Assurance Society of United States (1961), 28 Ill. App. 2d 461, 464; Brown v. United States Casualty Co. (N.D. Cal. 1899), 95 F. 935, 937; Fontenot v. New York Life Insurance Co. (La. App. 1978), 357 So. 2d 1185, 1188.
“We find unpersuasive the argument that the limitations on the time within which death must occur should be abandoned in light of the advancements made by the medical profession in the ability to prolong life or to defer death. (See Burne v. Franklin Life Insurance Co.; Note, Death Be Not Proud — The Demise of Double Indemnity Time Limitations, 23 DePaul L. Rev. 854, 860 (1974).) Regardless of the state of the art of healing or preserving life, there has always been and there always will be those who will die on the 89th day following the injury and those who will die on the 91st day following an injury. In the cases cited above, we note that this problem has been in litigation since prior to the advent of this century.
“The suggestion that the injection of financial matters may detrimentally affect decisions by double indemnity life insurance beneficiaries is not substantiated by the case at bar. Indeed, the beneficiary appears to have done precisely the opposite of what she argues. She maintained her husband, despite the policy, for more than 90 days. The 90-day requirement did not act as a disincentive in the provision of medical services.
“As a general matter, the suggestion that persons will be encouraged to ‘pull the plug’ is already dealt with by the concept of‘insurable interest.’ A person may not purchase insurance on another unless he has a positive incentive to keep that person alive. (Colgrove v. Lowe (1931), 343 Ill. 360; Warnock v. Davis (1882), 104 U.S. 775, 26 L.Ed. 924.) The law already has a requirement that will protect the assured.
“If the 90-day provision is invalid as injecting financial motives into life-saving decisions, then a whole host of other provisions and laws must be invalidated. What of term insurance? What of the termination of some insurance benefits at age 60? What of life insurance itself? Justice Holmes, speaking of insurable interest, noted aptly:
“ ‘The law has no universal cynic fear of the temptation opened by a pecuniary benefit accruing upon a death. It shows no prejudice against remainders after life estates, even by the rule in Shelley’s Case.’ Grigsby v. Russell (1911), 222 U.S. 149, 155-56, 56 L.Ed. 133, 137, 32 S.Ct. 58, 59.
“The implications of a decision invalidating 90-day limitations are quite broad. See, e.g., INA Life Insurance Co. v. Pennsylvania Insurance Department (1977), 31 Pa. Commw. 416, 376 A.2d 670 (invalidation of all time limits in accidental death provisions).
“It is clear on review of the many arguments that favor and oppose the 90-day restriction that continued approval is best left to the Department of Insurance and the legislature. The regulation of insurance has long been the prerogative of the legislature, and we should not usurp that authority. Stofer v. Motor Vehicle Casualty Co. (1977), 68 Ill. 2d 361.” 75 Ill. 2d at 371-79.
Wé note K.S.A. 1984 Supp. 40-401, which expressly authorizes:
“[A]ny such [life insurance] company may provide for the payment of a larger sum if death is caused by accident than if it results from any other causes.”
We note, also, K.S.A. 1984 Supp. 40-420, which provides life insurance policies shall contain:
“(2) A provision that, except as otherwise expressly provided by law, the policy together with the application, if a copy thereof be endorsed upon or attached to the policy, shall constitute the entire contract between the parties and shall be incontestable after it has been in force during the lifetime of the insured for a period of not more than two years from its date, except for nonpayment of premiums and except for violations of the conditions, if any, relating to naval or military service, or to aeronautics and, except also at the option of the company, with respect to provisions relative to benefits in the event of total and permanent disability and provisions which grant additional insurance specifically against death by accident or by accidental means . . . .” (Emphasis supplied.)
Additionally K.S.A. 40-216 provides:
“A copy of the bylaws and amendments thereto of insurance companies organized under the laws of this state shall also be filed with and approved by the commissioner of insurance. The commissioner may also require the filing of such other documents and papers as are necessary to determine compliance with the laws of this state. No contract of insurance or indemnity shall be issued or delivered in this state until the form of the same has been filed with the commissioner of insurance, nor if the commissioner of insurance gives written notice within thirty (30) days of such filing, to the company proposing to issue such contract, showing wherein the form of such contract does not comply with the requirements of the laws of this state . . . .” (Emphasis supplied.)
We believe the rationale of the Illinois Supreme Court as expressed in the above cited portion of its opinion in Kirk v. Financial Security Life Ins. Co. is sound. Cases decided in other jurisdictions since Kirk add nothing. Like Illinois, Kansas requires submission of life insurance policy forms to a supervising branch of state government (here, the Commissioner of Insurance where, presumably, the ninety-day limitation at issue herein was approved).
We conclude the ninety-day limitation on the life insurance accidental death double indemnity provision is not contrary to the public policy of Kansas. Such limitations are long-established provisions in life insurance policies. If the same are to be invalidated, it is a matter best left to the legislature and the Commissioner of Insurance.
The plaintiff s final argument in support of her claim under the double indemnity provision is that the “processes of nature” doctrine should be applied.
Kansas has applied the processes of nature doctrine to disability benefits. In Commercial Travelers v. Barnes, 72 Kan. 293, 80 Pac. 1020 (1905), the court stated in Syl. ¶ 3:
“3. The word ‘immediately,’ as applied to the language of the indemnity contract stated in the first paragraph of this syllabus is not synonymous with ‘instantly,’ ‘at once,’ and ‘without delay.’ A disability is immediate, within the meaning of such contracts, when it follows directly from an accidental hurt, within such time as the processes of nature consume in bringing the person affected to a state of total incapacity to prosecute every kind of business pertaining to his occupation.” (Emphasis supplied.)
See also Rabin v. Business Men’s Association, 116 Kan. 280; 226 Pac. 764 (1924); Thomas v. Mutual Benefit Health & Acc. Ass'n, 136 Kan. 802, 18 P.2d 151 (1933).
Plaintiff urges this court to extend the doctrine to double indemnity life insurance claims.
The difficulty with this argument lies in the fundamental difference between the issue presented in disability cases and the issue before us. In the disability cases where the doctrine has been applied, the court has been called upon to determine what is meant by the words “immediate” or “immediately disabled” contained in the policy. The processes of nature doctrine is utilized to construe an ambiguous term contained in the policy in light of the facts presented. There is no ambiguity in the ninety-day limitation in the double indemnity life insurance provision before us. Plaintiff is urging us to invalidate unambig uous provisions in a life insurance policy which bar her claims for payment of double indemnity on a doctrine of construction utilized to construe ambiguous terms in disability policies. We conclude this issue is without merit.
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|
The opinion of the court was delivered by
Miller, J.:
This is an appeal by the State following the dismissal of a criminal case in which the defendant, Donald A. Schilling, was charged with sale of marijuana in violation of K.S.A. 1984 Supp. 65-4127b(b)(3) and K.S.A. 1984 Supp. 65-4105(d)(13). The issues raised are whether the trial court erred in ordering the State to disclose the identity of a “confidential informant” known as “Susan,” and whether the trial court erred in ordering the State to either comply with the disclosure order, dismiss the charges with prejudice, or show cause why the prosecutor should not be found in contempt of court.
The procedural and factual background is necessary to an understanding of the issues. The case was commenced with the filing of a complaint/information on November 14, 1984. Each count charged the defendant with the sale of a quantity of marijuana. Count No. 1 charged an offense which allegedly occurred on March 10, 1984, count No. 2 charged an offense on June 8, 1984, and count No. 3 charged an offense on June 19, 1984. Preliminary examination was held on December 18, and at that time the State dismissed count No. 1 and the defendant waived preliminary hearing upon counts No. 2 and 3. On January 25, 1985, defendant filed a motion for an order requiring the State to identify the female informant and, in support of that motion, the defendant alleged that he would show to the court “that it appears that said informant was the causative factor in the connection between the Defendant and the State’s case and that the testimony of the said individual is necessary for the'furtherance of the defense of this case.”
On February 8, 1985, the motion came on for hearing. Defendant did not appear in person but both parties appeared by counsel. No evidence was presented. Both parties concede that Susan introduced the defendant to the officers and was present throughout the March 10 transaction described in count No. 1; Susan was not present and had no part in the June transactions.
The defendant’s attorney informed the court that the defense in this matter would be that of procuring agent; that the initial contact between the police officer who made the case and the defendant was made in the presence of the informant known to the defendant only as Susan. He stated that the defendant had a personal and sexual relationship with Susan but did not know her last name. He argued that a request from a friend to assist another person tends to make the defendant the agent of the buyer rather than the agent of the seller and thus Susan was a potential witness in the several transactions between the defendant and the State. Counsel also indicated that he thought he might have represented Susan in a separate proceeding in which she was granted probation and that counsel needed to know the name in order to determine whether or not he had a conflict of interest. The State argued that disclosure was not necessary for the defendant to receive a fair trial or be able to fairly present his defense, and that counsel’s ethical problem did not weigh the balance in favor of disclosure. The trial court then ruled that the informant would have information that would be material and relevant, and ordered disclosure of her full name. The prosecutor immediately said to the court that she was under the impression that evidence was to be presented (the detective was present at the hearing) and that defense counsel’s statements differed substantially from the detective’s story. The trial court responded that due process required that the defendant be given an opportunity to present his defense and that defense counsel had indicated the woman’s name was relevant and material, regardless of what the evidence would be.
The State was granted a rehearing on March 29, 1985. Again, defendant was not present in person and appeared only by counsel. The State presented the testimony of Detective Mathews. He had first met the defendant at his place of employment pursuant to an earlier telephone call made by Susan. Mathews, Detective Doyle, Susan and the defendant drove to defendant’s residence at his direction. Defendant went into the residence, returned a few minutes later, told them to drive to Molly Mae’s club, and when they arrived there defendant produced a plastic baggie containing marijuana which Mathews bought, paying the defendant $60 for it. All four went into the club, where they remained for some thirty minutes. Susan danced for perhaps ten minutes and was at the table probably twenty minutes. Mathews told the defendant he was interested in purchasing ten to fifteen pounds of marijuana. Defendant said he knew an individual in Hutchinson who could possibly get that much, but he would have to check. Defendant also talked with another patron of the club who knew somebody who could get the drugs, but defendant did not know how quickly. Defendant stated that the money would have to be “fronted” (i.e., paid in advance before the marijuana was produced) and the officers said that was not satisfactory. They would not agree to that arrangement. The rest of the conversation was small talk. The detective did not know whether Susan was present at the table when the conversation concerning future drug buys took place. Neither detective ever gave the defendant any money with which to buy drugs and neither ever indicated that he would do so. Mathews, Doyle and Susan left together; defendant remained at Molly Mae’s.
Detective Mathews was transferred out of narcotics to another department and did not work in an undercover capacity for several months. On June 7 he telephoned the defendant and set up a meeting on June 8. On that date he went to the defendant’s residence, was admitted by an older woman, and went down a flight of stairs to defendant’s room, where defendant handed him a large plastic baggie containing two smaller baggies. Defendant said he could take his pick of those two, as they were all he had left. The detective took one of the baggies and paid the defendant $55 for it. Laboratory examination disclosed that it contained marijuana. There was no testimony giving details of the June 19 incident.
Detective Mathews explained that count No. 1 should not have been included in the complaint, it being his intention not to charge the defendant with that offense since the informant was present throughout that transaction. At his request, count No. 1 was dismissed at the preliminary hearing. He testified that it is the policy of the department not to disclose the names of confidential informants except on order of the court. He said that neither he nor any member of his department would be in jeopardy if the name was released. He did not know the details of the prior charges against Susan, who her attorney was, or who her probation officer was. After the court’s February order, Detective Doyle had attempted to contact Susan through the only relative of hers that he knew, but the relative did not know her whereabouts. Defense counsel argued that Susan was a material witness as to count No. 1 and was potentially needed as a witness to determine whether his client would receive a fair trial because of counsel’s potential conflict of interest. The trial court then ordered the prosecuting attorney to either release the name or dismiss the case with prejudice by 4:00 o’clock that afternoon, or to show cause why she should not be found in contempt.
Further hearing was held at approximately 4:00 o’clock p.m. with an additional assistant district attorney present. He advised the court that Susan had participated in several other investigations resulting in convictions of major narcotics dealers, and that Detective Mathews was present and prepared to testify that there was good reason to believe that Susan’s life would be jeopardized, or at least her well-being would be seriously jeopardized, if her name was released. Defense counsel did not disagree with the statement, except he argued that her life was not in danger because her whereabouts were unknown. The trial judge stood by his order directing that either the name be disclosed or the State dismiss the case with prejudice. The prosecution requested the court to dismiss the case on its own motion. The court declined to do so. Under these circumstances, and under threat of contempt and remand of the prosecutor to the custody of the sheriff without bond, the State dismissed.
The first issue is whether the trial court erred in finding the confidential informant’s identity was essential to a fair trial, and in ordering the State to disclose it. Entwined in this issue is defense counsel’s potential conflict of interest problem. Apparently, from the record, the defendant was unsure of Susan’s last name. He gave counsel a name which he thought was Susan’s last name. It is similar to the last name of counsel’s former client. Apparently counsel had not informed defendant of the name of his former client and does not wish to do so. This problem could have been easily resolved. The court could have required the State to supply the name directly to the court for an in camera examination, and could have required defense counsel to have similarly supplied the name of his former client. If the name matched, the judge would simply tell defense counsel that he had a conflict. The informant’s name, by this process, would not be made public, and counsel’s problem would be resolved. Thus, as we see it, the possible conflict of interest need not be considered in determining whether the disclosure of Susan’s identity to the defendant is essential to assure him a fair trial.
K.S.A. 60-436 addresses the informer’s privilege and states:
“60-436. Identity of informer. A witness has a privilege to refuse to disclose the identity of a person who has furnished information purporting to disclose a violation of a provision of the laws of this state or of the United States to a representative of the state or the United States or a governmental division thereof, charged with the duty of enforcing that provision, and evidence thereof is inadmissible, unless the judge finds that (a) the identity of the person furnishing the information has already been otherwise disclosed or (b) disclosure of his or her identity is essential to assure a fair determination of the issues.”
Susan’s full identity has not been previously disclosed and thus subsection (a) of the statute is inapplicable. We must determine then whether disclosure was properly allowed under (b) as essential to assure a fair determination of the issues. Disclosure is, of course, not a matter of right, but one within the sound discretion of the trial court.
The charges contained in count No. 1 have been dismissed. The defendant stands charged only with sales of marijuana on June 8 and June 19. Defense counsel stipulated that Susan had no contact with the two cases arising in June. She had nothing to do with setting up those meetings between Detective Mathews and the defendant and she was not present. Neither Mathews nor Detective Doyle have had any contact with her since March 1984.
Susan initially introduced Mathews to the defendant, thus bringing about the March sale. She was present when that sale took place. That sale, however, forms no part of the present charges against the defendant.
She may have been present when Mathews told the defendant that he was interested in purchasing ten to fifteen pounds of marijuana, when the defendant attempted to arrange that purchase through another patron of the club, when the defendant told Mathews that the money for such a purchase would have to be “fronted,” and when Mathews and Doyle told the defendant that they would not agree to that sort of an arrangement. The first June sale was of a quantity of marijuana in a small plastic baggie — obviously not ten to fifteen pounds. Also, the only testimony before the court was that the money for that purchase was not fronted but was paid by the detective to the defendant at the time of the sale. There is no evidence indicating the amount of marijuana included within the June 19 charge, but there is nothing in the record to indicate that this was a major amount, ten to fifteen pounds, or that Detective Mathews gave the defendant the money with which to buy that marijuana before it was delivered.
The late Chief Judge Foth discussed K.S.A. 60-436 and its background at length in State v. Knox, 4 Kan. App. 2d 87, 93-99, 603 P.2d 199 (1979). The facts in Knox were similar to those in count No. 1 here. An undercover police officer accompanied by a local resident referred to as a “confidential informant” was introduced to Knox and in the presence of the confidential informant purchased from and paid Knox for a bag of marijuana. The trial court denied Knox’s repeated motions for disclosure. The Court of Appeals reversed, noting that the informant was not a mere tipster but an intermediary who first suggested the crime, introduced the participants, and witnessed the entire transaction. 4 Kan. App. 2d at 95. The court noted that the testimony of the informer might have disclosed entrapment, and might have controverted, explained or amplified defendant’s conversations as related by the officer. Additionally, the prosecution placed before the jury evidence of the informer’s reliability and thus bolstered the State’s case without disclosing the informer’s name, calling him to the stand, or subjecting him to cross-examination. (The prosecutor in the case at hand stated that the State had no intention of mentioning the informer in proving the pending counts.)
The Court of Appeals in Knox relied upon the leading case on the informer’s privilege, Roviaro v. United States, 353 U.S. 53, 1 L.Ed.2d 639, 77 S.Ct. 623 (1957). There, Roviaro was charged with selling heroin to “John Doe” and in a second count with receiving, concealing, buying, and facilitating the transportation and concealment of heroin at the same time and place. The government successfully opposed defendant’s request for disclosure of John Doe’s identity. Roviaro was convicted of both counts. All of the criminal activity necessary to support both charges was committed in the presence of John Doe. The United States Supreme Court noted that this was a case where the informer was the sole participant, other than the accused, in the transaction charged. He was the only witness in a position to amplify or contradict the testimony of government agents who viewed the activity from some distance. The court concluded that the trial court committed prejudicial error in permitting the government to withhold the identity of the informer. It reversed and remanded the case. The court adopted a balancing test in the following language:
“We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” 353 U. S. at 62.
We have frequently said that, before disclosure will be ordered, it is incumbent upon a defendant to show that the identity of the informer is material to his defense. State v. Pink, 236 Kan. 715, 722, 696 P.2d 358 (1985); State v. Cohen, 229 Kan. 65, 69, 622 P.2d 1002 (1981); State v. Braun, 209 Kan. 181, 186, 495 P.2d 1000, cert. denied 409 U. S. 991 (1972). It is also the rule that speculation and suspicion regarding what an informant might possibly testify to is not sufficient to require disclosure. State v. Pink, 236 Kan. at 722. Here, the defendant was not present at the hearing on his motion, he did not testify, and he did not offer any evidence to support his motion. The entire evidentiary basis for the trial court’s ruling is the testimony of Detective Mathews, which we have detailed earlier in this opinion. Susan was present at the initial meeting and introduced the detective and the defendant. That certainly would provide no basis for a finding that her testimony would be material and essential to assure a fair determination of the issues presented on trial of counts No. 2 and 3. Likewise, if she was present and heard the discussion between the defendant and the detectives for sale of a large quantity of marijuana which resulted in the detectives stating that they were not interested because of the requirement that the money for such a quantity be fronted, her testimony of that conversation would not be material to a determination of the issues raised by counts No. 2 and 3.
The defense in this case is to be that of procuring agent. We have held that that is an available and appropriate defense in a drug or narcotics case. State v. Osburn, 211 Kan. 248, 505 P.2d 742 (1973); Note, A Procuring Agent May Not Be Convicted of Narcotics Sale, 22 Kan. L. Rev. 272 (1974); and see PIK Crim. 2d 54.14-A. The defense has usually arisen where one person has advanced money to the defendant in order that the defendant might purchase controlled substances from another for that person. See State v. Osburn, 211 Kan. at 249; City of Iola v. Lederer, 86 Kan. 347, 120 Pac. 354 (1912); State v. Turner, 83 Kan. 183, 109 Pac. 983 (1910); State v. Cullins, 53 Kan. 100, 36 Pac. 56 (1894); Reed v. State, 3 Okla. Crim. 16, 103 Pac. 1070 (1909); and in the cases relied upon therein. Here, there is no evidence that the detectives gave money to the defendant so that he might purchase marijuana for them, or that they agreed to do so, in the informer’s presence or otherwise; all of the evidence is quite to the contrary. Further, there is no evidence as to when defendant purchased the marijuana. The only evidence before the trial court was that the defendant had marijuana in his possession and sold and transferred it to the detective. We fail to find anything in the evidence which would support a finding that the informer’s testimony would be helpful to the defendant in establishing a procuring agent defense to the June charges. Finally, the argument by defense counsel that defendant was more than an acquaintance of the informant, had been sexually intimate with her, and relied upon her initial request to supply marijuana to the detectives would not in our opinion indicate that she has any information which is essential to assure to the defendant a fair trial on the charges of the separate sales in June. Upon a thorough review of all of the evidence before the trial court, we conclude that there was no evidence to support the trial court’s finding that disclosure of the informant’s identity was essential to a fair trial. The trial court erred in ordering disclosure.
The final issue is whether the trial court erred in ordering the prosecutor to disclose the informant’s identity, dismiss the case with prejudice, or be held in contempt of court. The order directing disclosure of the informant’s identity was a discovery order governed by the provisions of K.S.A. 22-3212. Subsection (7) of that statute provides in applicable part that:
“If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this section or with an order issued pursuant to this section, the court may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems just under the circumstances.”
As we observed in State v. Jones, 209 Kan. 526, 528, 498 P.2d 65 (1972):
“The clear import of this proviso ... is to vest the trial court with wide discretion in dealing with the failure of a party to comply with a discovery and inspection order . . . .”
Dismissal is the most drastic sanction which can be applied. State v. Winter, 238 Kan. 530, 712 P.2d 1228 (1986). Nevertheless, the trial court may dismiss a case where failure to abide by the discovery rules prevents a fair trial. Since the trial court has that authority, there was no need for the trial court to invoke its contempt powers. The exercise of the trial court’s authority to dismiss would be fully sufficient. We can find no case and no statutory authority for the proposition that the trial court can order the prosecution to dismiss a criminal case with prejudice for failure to make discovery and to proceed against the individual prosecutor in contempt. A trial court has the authority to enforce its discovery orders, and sanctions are sometimes necessary to compel compliance. The least drastic sanctions which will accomplish the objective should be employed. State v. Winter, 238 Kan. 530, Syl. ¶ 4. Here, there was no occasion for a contempt proceeding.
This case was not dismissed voluntarily by the State, but was dismissed involuntarily upon order of the trial court. The State’s appeal, therefore, is “[f]rom an order dismissing [an] ... information” and may be taken as a matter of right. K.S.A. 22-3602(b)(1). We have jurisdiction of this appeal under the cited statute.
Jeopardy is defined by K.S.A. 21-3108(l)(c) as follows:
“A defendant is in jeopardy when he or she is put on trial in a court of competent jurisdiction upon an indictment, information or complaint sufficient in form and substance to sustain a conviction, and in the case of trial by jury, when the jury has been impaneled and sworn, or where the case is tried to the court without a jury, when the court has begun to hear evidence.”
A trial jury had not been impaneled in this case, nor had trial begun before the court. Accordingly, defendant was not in jeopardy. The charges remain pending and undetermined before the district court.
The judgment is reversed and the case is remanded to the trial court for further proceedings consistent with this opinion. | [
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|
The opinion of the court was delivered by
Herd, J.:
This is an appeal by the State from an order of the Shawnee County District Court dismissing a charge of driving under the influence (K.S.A. 1984 Supp. 8-1567) against Jill Brueninger.
The facts giving rise to this dispute are as follows;
On February 2, 1985, officer William Beasley- of the Rossville Police Department observed a vehicle driven by the appellee Jill Brueninger enter an intersection without stopping for a flashing red light. The officer followed the vehicle and observed it traveling left of the center line of the highway. About one-half mile outside of Rossville, Officer Beasley attempted to stop Ms. Brueninger by turning on his siren. She did not slow down but continued at approximately 60 miles per hour toward the City of Silver Lake. The officer then radioed the Shawnee County Sheriff s Dispatcher for assistance. Less than one mile outside of Silver Lake a second officer had set up a roadblock. He was forced to retreat from it as Brueninger failed to slow her vehicle.
Appellee’s vehicle finally came to a stop at an intersection located west of Silver Lake, within Shawnee County. Officer Beasley, upon approaching the appellee’s vehicle, smelled a strong odor of alcohol and noted from her actions that she appeared to be under the influence of alcohol. Ms. Brueninger consented to a field sobriety test, after which she was arrested and taken to the Shawnee County Sheriff s Department.
Ms. Brueninger was charged by the City of Rossville with (1) failure to stop at a flashing red light; (2) driving left of center; and (3) fleeing or attempting to elude a police officer. Shawnee County charged her with driving under the influence of alcohol or drugs.
Although the City of Rossville did not charge the appellee with driving under the influence, some evidence of her intoxicated condition was introduced during the Rossville proceedings. The Rossville City Attorney, during direct examination, questioned Officer Beasley regarding what he observed when he stopped the defendant. The officer testified as follows:
“Q. What did you observe after that?
“A. I could smell the strong odor of alcoholic beverages and noticed that the eyes were bloodshot and extremely dilated. She had a considerable amount of trouble obtaining her driver’s license from her wallet and at that time I asked the driver to consent to a field sobriety test.
“Q. Was the Defendant cooperative with you at all times?
“A. Yes, she was.
“Q. And what did you — what did you advise her of before your field sobriety test?
“A. I’m sorry, I misunderstood.
“Q. Never mind, that’s okay. I’ll withdraw the question.”
Upon cross-examination, the following exchange took place between defense counsel John Humpage and Officer Beasley:
“Q. You indicated on direct examination that of course after the vehicle stopped you got this young lady out of the car, you detected some alcoholic beverage?
“A. That’s correct.
“Q. And of course you asked her to submit to a field sobriety test which she consented to, is that correct?
“A. That’s correct.
“Q. Now, did she take this field sobriety test atyour direction out there on the highway?
"A. Yes, she was — we were between her car — the back of her car and the front of my car.
“Q. And we’re talking about finger to nose, heel to toe, forward to backward.”
At this point the City objected on the grounds the testimony was not relevant to the charges brought against appellee in municipal court. The court permitted appellee further limited inquiry regarding the DUI charge:
“Q. Anyway, to make a long story short, Mr. Beasley, at some point after you stopped the Defendant in the early morning hours of the second you arrested her and took her to the Shawnee County Sheriff s Office, is that correct?
“A. This is correct.
“Q. One of the charges — there were three charges — there were four in number but one of the charges, D.U.I., you made a request subsequent to the arrest out in Silver Lake that she take a chemicals test, correct?
“A. That’s correct.
“Q. Now, you take her to the station to take the chemicals test, thereafter you booked her in Shawnee County, charged her with driving under the influence, correct?
“A. Correct.”
At the Rossville hearing, appellee was convicted of failure to stop at a flashing red light and driving left of center. The court held it was without jurisdiction to convict Brueninger of fleeing or attempting to elude a police officer since the conduct occurred outside of the Rossville city limits.
On May 22, 1985, Ms. Brueninger filed a motion to dismiss the Shawnee County charge of driving under the influence. The district court sustained the motion, dismissing the charge pursuant to K.S.A. 21-3108(2)(a). The district court held that the DUI charge resulted from incidents from which appellee was found guilty in the Rossville municipal court, and the appellee could have been charged in the Rossville proceeding. Therefore, the court held the double jeopardy provisions of K.S.A. 21-3108(2)(a) applied to bar the Shawnee County DUI charge.
The sole issue on appeal is whether the prior municipal court proceedings bar the appellee from being prosecuted in Shawnee County for driving under the influence of alcohol or drugs.
This issue is controlled by K.S.A. 21-3108(2)(a), which provides:
“(2) A prosecution is barred if the defendant was formerly prosecuted for a different crime, or for the same crime based upon different facts, if such former prosecution:
“(a) Resulted in either a conviction or an acquittal and the subsequent prosecution is for a crime or crimes of which evidence has been admitted in the former prosecution and which might have been included as other counts in the complaint, indictment or information filed in such former prosecution or upon which the state then might have elected to rely; or was for a crime which involves the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution . . .
Before considering the arguments of the parties, it is helpful to review previous decisions regarding K.S.A. 21-3108(2)(a).
The Court of Appeals in In re Berkowitz, 3 Kan. App. 2d 726, 602 P.2d 99 (1979), extensively reviewed the law of double jeopardy under the Fifth and Fourteenth Amendments and its historical background. The court then related this background to the law of double jeopardy as it currently exists in Kansas. Critical to this analysis was the court’s determination that K.S.A. 21-3108(2)(a) incorporates two key concepts — the compulsory joinder rule and the identity of elements rule. The Court of Appeals noted that these rules are both embodied in one subsection with two clauses separated by a semicolon. 3 Kan. App. 2d at 741.
The distinction between the compulsory joinder rule and the identity of elements test was recognized in Coverly v. State, 208 Kan. 670, 493 P.2d 261 (1972), and in State v. Edgington, 223 Kan. 413, 573 P.2d 1059 (1978).
The “same evidence” or identity of elements test is incorporated in the second clause of K.S.A. 21-3108(2)(a). It provides that where the same act or transaction constitutes a violation of two statutory provisions, the test for determining whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not. Coverly v. State, 208 Kan. at 672; State v. Edgington, 223 Kan. at 416. Where one statute requires proof of a fact which the other does not, then one offense is not a bar to the prosecution of the other on the ground of double jeopardy. State v. Mourning, 233 Kan. 678, 679, 664 P.2d 857 (1983).
The first clause of K.S.A. 21-3108(2)(a) concerns compulsory joinder and provides that if evidence is admitted at the prior prosecution of an offense not contained in the charge, later prosecution of that offense is barred if it could have been im eluded as an additional count in the prior prosecution. In re Berkowitz, 3 Kan. App. 2d at 742.
We have held this rule requires the presence of three elements. First, the prior prosecution must have resulted in a conviction or acquittal; second, evidence of the present crime must have been introduced in the prior prosecution; and third, the charge in the second prosecution must have been one which could have been charged as an additional count in the prior case. State v. Freeman, 236 Kan. 274, 286, 689 P.2d 885 (1984); State v. Calderon, 233 Kan. 87, 89, 661 P.2d 781 (1983); State v. Fisher, 233 Kan. 29, 32, 661 P.2d 791 (1983).
The object of the compulsory joinder statute is to prevent the prosecution from substantially proving a crime in a trial in which that crime is not charged and then retrying the defendant for the same offense in a trial where it is charged. State v. Mahlandt, 231 Kan. 665, 668, 647 P.2d 1307 (1982); In re Berkowitz, 3 Kan. App. 2d at 743.
Thus, in determining whether K.S.A. 21-3108(2)(a) bars the Shawnee County prosecution of the appellee for driving under the influence of alcohol or drugs, we must consider and apply both clauses of K.S.A. 21-3108(2)(a).
The “Same Evidence” Test
In applying the identity of elements test, we look at whether the appellee will be put twice in jeopardy for the same offense. If one statute requires proof of a fact which the other does not, then there is no bar to the prosecution of both.
The following has been said regarding the identity of elements test:
“ ‘A common test of the application of double jeopardy is the substantial identity of the former arid subsequent offenses, and this is ordinarily measured by the character and effect of the evidence in each case. If the evidence which will support a conviction in the subsequent prosecution would have supported a conviction of the crime charged oran included offense in the former prosecution, then the second prosecution is substantially identical to the former and a conviction or acquittal in the former is a bar. Thus, one cannot be twice prosecuted for crimes involving the same conduct, unless in each prosecution facts must be proven which are not necessary to the other prosecution.’ ” State v. Becker, 1 Kan. App. 2d 671, 673, 573 P.2d 1096 (19.77), quoting Spring, The Effect of Former Prosecutions: Something Old and Something New Under Kan. Stat. Ann. Sec. 21-3108, 9 Washburn L.J. 179, 185 (1970).
Therefore, the question we must answer is whether facts must be proven in the Shawnee County DUI prosecution which were not necessary for conviction of the offenses for which appellee was charged in the Rossville municipal court and vice versa.
We have held that in order to support a conviction for driving under the influence of alcohol or drugs three elements must be proven: First, the defendant operated the vehicle; second, the defendant was under the influence of alcohol or drugs while operating the vehicle; and third, the operation took place within the jurisdiction of the court. State v. Mourning, 233 Kan. at 681. “Under the influence of alcohol” has been defined to mean that the defendant’s physical or mental function was so impaired by the consumption of alcohol that he was unable to safely drive a vehicle. State v. Reeves, 233 Kan. 702, 704, 664 P.2d 862 (1983).
In the instant case, the offenses for which the appellee was charged in Rossville municipal court had one common element with the DUI charge — that being the appellee must have operated the vehicle. However, it is not necessary to prove the driver was under the influence of alcohol or drugs in order to convict Ms. Brueninger of driving left of center or failure to stop at a flashing red light. Likewise, it is not necessary to prove appellee drove erratically to obtain a DUI conviction.
Our reasoning in State v. Mourning, 233 Kan. 678, is instructive. In Mourning, the defendant was charged with four traffic offenses: (1) speeding; (2) failure to drive completely within marked lanes; (3) reckless driving; and (4) driving under the influence of alcohol or drugs.
The defendant pled guilty to the first three charges and a trial date was set for the charge of driving under the influence of alcohol or drugs. The trial court dismissed that charge on the ground it was barred by K.S.A 21-3108(2)(a) because the prior offense of reckless driving arose out of the same conduct.
This court determined that the two offenses required different evidence for a conviction and, therefore, conviction of one did not bar a subsequent prosecution for the other. We held:
“The two offenses require different evidence for a conviction. To violate 8-1567 one needs only to operate a vehicle while his mental or physical capacity to function is impaired by alcohol or drugs to the extent he is no longer capable of safely driving the vehicle. It is unnecessary to prove, in addition, that the vehicle was driven in a reckless manner, although such driving may constitute circumstantial evidence the driver was under the influence of alcohol or drugs. On the other hand, to obtain a conviction for reckless driving under 8-1566 it is only necessary to establish that the vehicle was driven in willful or wanton disregard for the safety of others; in other words, under circumstances that show a .realization of the imminence of danger and a reckless disregard or complete indifference for the probable consequences of such conduct. Proof is not required that the driver was under the influence of alcohol or drugs.” 233 Kan. at 681-82. (Emphasis added.)
This court went on to point out that it is only the driving of a vehicle while under the influence of alcohol which is proscribed by 8-1567 and it is unnecessary to swerve all over the road or drive through another’s yard to be guilty of driving under the influence of alcohol or drugs.
In the instant case, as in Mourning, it is not necessary to prove the appellee drove left of center or failed to stop at a flashing red light in order to prove she was driving under the influence of alcohol or drugs. However, such evidence may constitute circumstantial evidence that the driver was under the influence of alcohol or drugs.
For comparison purposes, consider State v. Becker, 1 Kan. App. 2d 671. There, the defendant pled guilty to a driving left of center charge. This same charge was later used as the basis for a charge of aggravated assault on a law enforcement officer. (Defendant had driven left of center and forced an approaching patrol car off the roadway.)
The Court of Appeals held the defendant had been subjected to double jeopardy and reasoned as follows:
“In the ease at bar exactly the same conduct was the basis of two separate prosecutions. In the assault charge, the driving left of center was the threat or attempt to do bodily harm — the overt act under the particular circumstances. According to the state’s evidence, we do not have a situation where early in the chase and prior to the commission of the alleged assault the defendant drove his vehicle on the left half of the highway. Proof of the assault charge would have supported and included the traffic charge. Nothing was needed to be proven in the traffic count which was not necessary in the felony charge. The evidence in the latter would have supported conviction of the former. Thus, defendant could not be convicted of both charges and the latter prosecution must be voided.” 1 Kan. App. 2d at 673.
The present case is distinguishable. Here, the facts required to prove the DUI charge were not necessarily the same as those needed to prove the traffic offenses charged in the Rossville municipal court.
We hold the State was not barred from prosecuting the DUI charge in Shawnee County under the identity of elements test.
Compulsory Toinder Rule
Let us now turn to the second step of the two-step approach provided for in K.S.A. 21-3108(2)(a) and consider the compulsory joinder clause of the statute to determine if the three requirements set out earlier have been met.
Neither party disputes the presence of the first element, which requires the prior prosecution to have resulted in conviction or acquittal. The Rossville municipal court proceedings clearly ended in a conviction of the appellee on two charges. The parties do disagree, however, as to the presence or absence of the second and third elements.
The key to the application of the compulsory joinder clause appears to be in consideration of the second element — whether evidence of the present crime was introduced in the prior prosecution. State v. McCarther, 198 Kan. 48, 422 P.2d 1012 (1967).
The State contends Brueninger has failed to meet the second element of K.S.A. 21-3108(2)(a). The State suggests this requirement contemplates the introduction of substantial evidence by the prosecution to facilitate a conviction of the existing charges.
The State does not deny that at the municipal court trial the State’s witness, Officer Beasley, expressed his observations regarding the physical condition of appellee. Officer Beasley noted that he had smelled a strong odor of alcohol, the appellee had difficulty obtaining her driver’s license from her wallet and her eyes were bloodshot and extremely dilated. Additionally, he testified he asked appellee to participate in a field sobriety test. The State argues it was appellee who made significant inquiries regarding the factual basis for the DUI charge and that those inquiries took place over the objection of the prosecution. While there is substance to this argument, it must be remembered the prosecution first offered evidence of DUI, thereby opening the subject for cross-examination.
The question thus becomes whether the evidence admitted at the Rossville proceeding was significant evidence of another crime, i.e., the DUI charge pending against appellee in Shawnee County. Considering the testimony of Officer Beasley and his cross-examination by the appellee, it is clear the evidence admitted pertaining to driving under the influence was significant.
The third element requires a finding that thé charge in the second prosecution could have been charged as an additional count in the prior case.
The trial court found, based on the State’s affidavit, that the DUI charge could have been charged as an additional count in the prior case. There is support for this finding. The City of Rossville has adopted the Standard Traffic Ordinance for Kansas Cities. Article 6, sec. 30 of this ordinance prohibits driving under the influence of intoxicating liquor or drugs. Officer Beasley observed the appellee’s erratic behavior while she was still within the Rossville city limits. Thus, the third element necessary to bar a subsequent prosecution under the compulsory joinder clause is present here.
We hold the Shawnee County prosecution of appellee for driving under the influence of alcohol or drugs constitutes double jeopardy under K.S.A. 21-3108(2)(a).
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Herd, J.:
This is a declaratory judgment action under K.S.A. 12-712 challenging the reasonableness of Overland Park’s denial of an application for a special use permit. The district court dismissed the action for lack of jurisdiction. This appeal followed.
Appellant, Bear and Bear Associates, owns the Cloverleaf Office Complex in Overland Park, Kansas. Appellant, Sprint Print, Inc., leases office space in one of the Cloverleaf buildings and operates a copy and printing shop.
The building in which Sprint Print operates its business is zoned C-O Office Building District. Chapter 18.20 of the Overland Park Municipal Code lists the allowed uses of property within the C-O Office Building District. In May or June of 1984, Sprint Print was served with a 90-day notice to cease operations on the theory its use of the property was unauthorized under the zoning ordinance.
An application was filed by Bear and Bear Associates pursuant to Overland Park Municipal Code Chapter 18.36 (Special Uses), requesting a special use permit to authorize Sprint Print to continue its operation.
The City Planning Commission recommended denial of the application. On September 10, 1984, the Planning Commission’s recommendation was approved by the city council and the permit was denied. The following day, Sprint Print received a second notice to cease operations.
Within 30 days after the denial of the application, the appellants filed an action, pursuant to K.S.A. 12-712, in Johnson County District Court seeking declaratory and injunctive relief. They sought to have the City’s denial of their application for a special use permit declared unreasonable and to enjoin the City from enforcing its notice to cease operations served on Sprint Print.
The City then filed a motion to dismiss for lack of subject matter jurisdiction pursuant to K.S.A. 60-212(b)(l). The City argued that a special use permit is not zoning or rezoning and thus is not subject to K.S.A. 12-712. According to the City, if an appellate procedure existed it would be pursuant to K.S.A. 1984 Supp. 60-2101(d).
The district court determined that the filing of a K.S.A. 12-712 appeal of the denial of a special use permit did not confer subject matter jurisdiction on the court and dismissed the action.
The sole issue on appeal is whether K.S.A. 12-712 is the proper method of appeal from a denial of a special use permit.
Appellants contend the proper means of appeal from the City’s denial of a special use permit is pursuant to K.S.A 12-712. The statute provides:
“Any ordinance or regulation or amendment thereto provided for or authorized by this act shall be reasonable, and any taxpayer or any other person having an interest in property affected, may have the reasonableness of any ordinance, regulation or amendment thereto determined by bringing an action against the governing body of the city within thirty days after the making of a decision on a zoning ordinance or regulation, or amendment thereto, by such governing body. Such action shall be brought in the district court of the county in which such city is situated.”
The City argues K.S.A. 12-712 by its terms applies only to appeals from “any ordinance, regulation or amendment” and that a special use permit does not fall within those terms.
Let us examine what we have previously said about jurisdiction under K.S.A. 12-712 and its counterpart statutes for counties and townships. In Bolser v. Zoning Board for Aubry Township, 228 Kan. 6, 9, 612 P.2d 563 (1980), we noted that K.S.A. 19-2913, K.S.A. 19-2926 and K.S.A. 12-712, applicable to zoning acts of townships, counties and cities, respectively, are virtually identical and have been the vehicles of many appeals to this court.
K.S.A. 19-2926 provides:
“Any and all acts and regulations or amendments thereto provided for or authorized by this act shall be reasonable and any person having an interest in property affected may have the reasonableness of any such act, regulation or amendment thereto determined by bringing an action against the board of county commissioners within thirty days after the making of a decision on a zoning regulation, or amendment thereto. Such action shall be brought in the district court of the county.”
K.S.A. 19-2913 states:
“Any and all acts and regulations or amendments thereto provided for or authorized by this act shall be reasonable and any person having an interest in property affected may have the reasonableness of any such act, regulation or amendment thereto determined by bringing an action against the board of county commissioners within thirty days after the making of a decision on a zoning regulation, or amendment thereto. Such action shall be brought in the district court in the county in which any such township is situated.”
While we have not considered the specific issue now before us, appellants maintain we have impliedly determined K.S.A. 12-712 is the proper appellate procedure for reviewing the reasonableness of a denial of a special use permit. In support of their contentions, appellants cite a number of cases in which an appeal from a denial or grant of a special use permit was brought pursuant to K.S.A. 12-712, K.S.A. 19-2926 or K.S.A. 19-2913.
The most recent of these cases, Daniels v. Board of Kansas City Comm’rs, 236 Kan. 578, 693 P.2d 1170 (1985), involved an appeal to the district court from a decision of the Board of City Commissioners. The action was filed by a group of landowners who opposed the Commission's granting of a special use permit for operation of a sanitary landfill. The court noted that the action was brought pursuant to K.S.A. 12-712 to determine the validity and reasonableness of the Board's resolution granting the special use permit. 236 Kan. at 585.
Appellants also rely on Gaslight Villa, Inc. v. City of Lansing, 213 Kan. 862, 518 P.2d 410 (1974). There, the governing body of the City of Lansing denied plaintiff s application for a special permit to construct and operate a mobile home park at a specified location within the city. The court, at page 864, observed that the action was brought pursuant to K.S.A. 12-712 in order to attack the alleged unreasonable action of the city governing body in refusing to issue the special permit.
In Gaslight Villa the court relied on the case of Creten v. Board of County Commissioners, 204 Kan. 782, 466 P.2d 263 (1970). Creten, an action brought pursuant to K.S.A. 19-2926, involved an appeal from the County Commission’s denial of an application for a special permit to construct and operate a mobile home park. The court in Creten, although recognizing a distinction between a “rezoning” and a “special permit,” held:
“The Wyandotte County zoning regulations adopted by the Board of County Commissioners have a provision that requires a ‘special permit’ for the operation of an auto truck park, junk yard ora ‘mobile home park.’ While this case involves only the issuance of a ‘special permit’ and not the rezoning of land, the same rules of law apply in reviewing the administrative proceeding.” (Emphasis added.) p. 783.
We observed that such a review is conducted pursuant to K.S.A. 19-2926 when we noted at page 785 that the action in the district court was filed under the provisions of K.S.A. 19-2926 for the purpose of determining the reasonableness of the Board’s action.
Finally, in Bolser v. Zoning Board for Aubry Township, 228 Kan. 6, Justice McFarland, speaking for the court, considered the purpose of K.S.A. 19-2913 and concluded:
“K.S.A. 19-2913, K.S.A. 19-2926, and K.S.A. 12-712, applicable to zoning acts of townships, counties, and cities, respectively, are virtually identical and, over the years, have been the vehicles for many appeals to this court.” p. 9.
“[T]he purpose of K.S.A. 19-2913 (and comparable provisions of other previously referred-to zoning acts) was to assure the availability of judicial review for reasonableness of all zoning actions taken by a board of county commissioners, whether decisions, acts, or regulations. The inclusion of such provisions was intended to assuage citizen concerns by the assurance that unreasonable zoning could be judicially reviewed and corrected.” p. 14. (Emphasis added.)
By the parenthetical reference to “comparable provisions of other previously referred-to zoning acts,” the court was referring to K.S.A. 12-712 and K.S.A. 19-2926, as previously mentioned. Therefore, applying the above analysis to the present action, it is obvious judicial review for reasonableness pursuant to K.S.A. 12-712 should be available for all zoning actions taken by a city, including special use permits.
The City contends that while the court in the foregoing cases noted the actions were brought pursuant to K.S.A. 12-712 or K.S.A. 19-2926, it did not specifically address the jurisdictional implications of that statute.
While it is true we have not previously considered the specific jurisdictional issue presently before us, we are not precluded from doing so now. No conclusions need be drawn from our previous lack of comment on the jurisdictional implications of K.S.A. 12-712 since we hold today it is a proper statute under which to seek review of a city’s denial of a special use permit.
The City relies on the holding of this court in Weeks v. City of Bonner Springs, 213 Kan. 622, 518 P.2d 427 (1974), for its proposition that a denial of a special use permit is not appealable pursuant to K.S.A. 12-712.
In Weeks, the appellants challenged the reasonableness of the City’s approval of a special use permit on the basis that the City did not follow the zoning procedures as required by K.S.A. 12-708. We held:
“The fallacy in appellants’ position is that the city council’s authorization of Stith’s office in a residential area was the granting of a special permit — an occupancy permit — specifically authorized by the ordinance. This is not an amendment, modification, revision, or change of any provision of the zoning ordinance demanding adherence to the procedural requirements of either the ordinance itself or K.S.A. 1973 Supp. 12-708.” p. 631.
Weeks does not pertain to the issue in this case and is therefore not authority for ruling K.S.A. 12-712 inapplicable to special use permits.
Finally, it is argued K.S.A. 19-2913 and K.S.A. 19-2926 are couched in broad enough language to provide for appellate review of the reasonableness of township and county actions on special use permits, while K.S.A. 12-712 is more restrictive and thus does not permit such review. This argument refers to the opening sentences in the statutes. K.S.A. 19-2913 and K.S.A. 19-2926 are identical and provide for appellate review of “any and all [zoning] acts and regulations or amendments thereto.” K.S.A. 12-712 provides for appellate review of “any [zoning] ordinance or regulation or amendment thereto.”
Such a narrow construction of K.S.A. 12-712 ignores the legislative scheme for appellate review of the reasonableness of all actions by municipal bodies on zoning applications and our conclusion in Bolser that the purpose of K.S.A. 19-2926, K.S.A. 19-2913 and K.S.A. 12-712 is to insure the availability of appellate review for all zoning decisions. To construe K.S.A. 12-712, applicable to cities, as different from the other two statutes destroys this scheme. We construe the term “regulation” in K.S.A. 12-712 to include actions of cities on special use permit applications. Thus, following the áuthority of Bolser and Daniels, we hold K.S.A. 12-712 provides the proper procedure for obtaining appellate review of the City’s action here in denying a special use permit.
The judgment of the trial court is reversed and this case is remanded for further proceedings consistent with this decision.
McFarland, J., dissenting: I disagree with the majority’s conclusion that “K.S.A. 12-712 provides the appropriate means of appellate review of a city’s action on an application for a special use permit.”
As the author of Bolser v. Zoning Board for Aubry Township, 228 Kan. 6, 612 P.2d 563 (1980), I believe the majority opinion has cited a portion of it out of context as support for a proposition not encompassed in the Bolser opinion. Bolser involved a challenge to a township zoning board’s rezoning of plaintiff s land. The issue was whether plaintiff had 30 days in which to file an action in the district court under K.S.A. 19-2913 (as held by the trial court) or five years in which to bring the action (as held by the Court of Appeals at 4 Kan. App. 2d 288, 605 P.2d 156 [1980]). As pointed out in the Bolser opinion, the legislature’s response to the Court of Appeals’ opinion was the speedy amendment of various zoning statutes to establish the 30-day time limit. In Bolser, we pointed out that the term “zoning appeals” in our case law had evolved to include original actions as well as appeals. It was further pointed out that the various statutes dealing with zoning that permitted judicial review'of zoning acts or ordinances were intended to assure the public that unreasonable zoning could be judicially reviewed and corrected.
For convenience K.S.A. 12-712 is iterated at this point as follows:
“Any ordinance or regulation or amendment thereto provided for or authorized by this act shall be reasonable, and any taxpayer or any other person having an interest in property affected, may have the reasonableness of any ordinance, regulation or amendment thereto determined by bringing an action against the governing body of the city within thirty days after the making of a decision on a zoning ordinance or regulation, or amendment thereto, by such governing body. Such action shall be brought in the district court of the county in which such city is situated.” (Emphasis supplied.)
The majority opinion in the case before us improperly lumps denial of a special use permit into the general category of zoning ordinances, regulations or amendments thereto reviewable under K.S.A. 12-712, The journal entry reflecting the trial court’s dismissal of the action is quite brief but clearly follows the rationale expressed in the defendant city’s supplemental memorandum in support of its motion to dismiss. The pertinent portions of the memorandum are set forth as follows:
“The City contends that the Court lacks subject matter jurisdiction to entertain this case as an original action under K.S.A. 12-712. That statute is jurisdictional and allows an original case to be brought in district court on zoning and rezoning issues. Special use permits are not zonings or rezonings and the only possible route an aggrieved party could have would be pursuant to the omnibus appeal statute at K.S.A. 60-2101(d).
“Confusion initially arises from the language in Gaslight Villa, Inc. v. City of Lansing, 213 Kan. 862 (1974). In Gaslight, as a condition to allowing a mobile home park, the property owner was required to obtain a special use permit. That permit was denied and the property owner filed an action in the district court under K.S.A. 12-712, whereby, the court reversed the governing body. On appeal to the Kansas Supreme Court, the district court’s decision was reversed on the basis that it substituted its judgment for that of the governing body which is inappropriate when the function of the court was only to determine whether the governing body’s decision was ‘reasonable.’ Within the opinion, the Court points out that the action was brought pursuant to K.S.A. 12-712; however, at no time does the Court address the jurisdictional implications of that statute, but only uses it to discuss the parameters of the ‘reasonableness standard’ as it applies to decisions by a governing body. Unfortunately, the inference has been drawn that 12-712 is the appropriate statute to use in filing a challenge to a denial of a special use permit.
“Ironically enough, one does not have to look far to start to straighten out the issue. Within the same volume of Kansas Reports, in a different case, the Kansas Supreme Court states:
‘The fallacy in appellants’ position is that the city council’s authorization of Stith’s office in a residential area was the granting of a special permit — an occupancy permit — specifically authorized by the ordinance. This is not an amendment, modification, revision or change of any provision of the zoning ordinance demanding adherence to the procedural requirements of either the ordinance itself or K.S.A. 1973 Supp. 12-708.’
Weeks v. City of Bonner Springs, 213 Kan. 622, 631 (1974). In acknowledging that special permits are not subject to the zoning statutes, the Court goes on to specifically state that special permits do not constitute amendments or changes to zoning ordinances. In Weeks a chiropractor sought a special permit in the form of an occupational permit to conduct his practice in a residential zoned area. Several proceedings were held and eventually the permit was granted; however, a group of protesting neighbors filed an injunctive action in the district court based upon claims of procedural deficiencies, and unlawful application of city ordinances. The court determined that it had subject matter jurisdiction over the legal issues raised and held that the city acted within its authority to grant the permit. (See p. 626.)
“The neighbors, in Weeks, contended that K.S.A. 12-708, zoning procedures must be adhered to, whereby the Supreme Court clearly pointed out that a special permit is not subject to the zoning statutes. (Id. at p. 631.) At all times, of course, the Court recognized that the test of ‘reasonableness’ applied whether the case was an original action under K.S.A. 12-712, on appeal, or brought via an injunctive action. The Court went on to state that it was not ruling on the administrative procedures followed. (Id. at pp. 633-4.)
“More recently, in 1981, the Kansas Court of Appeals stated, ‘[T]he Kansas Supreme Court has held that the procedures attendant to obtaining a zoning amendment are inapplicable to special use permits.’ Martin Marietta Aggregates v. Board of Leavenworth County Comm’rs., 5 Kan. App. 2d 774, 779, petition for rev. den. 229 Kan. 670 (1981) ....
“. . . Thus, the statute- clearly only applies to matters covered under the zoning and rezoning procedures, whereby, the Kansas Courts have equally as clearly stated that special use permits are not covered by these statutes.”
I concur with the result reached by the trial court. Special use permits are not zoning ordinances or amendments thereto and K.S.A. 12-712 is inapplicable thereto. If judicial review were to be had over the City’s denial of the special use permit, K.S.A. 1984 Supp. 60-2101(d) was the only vehicle available. I would affirm the trial court.
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The opinion of the court was delivered by
Herd, J.:
These are consolidated actions by Executive Financial Services (EFS) for possession of three tractors and for a determination that it is the owner of the tractors or, in the alternative, that its security interest therein be adjudged prior to the rights of defendants. The district courts granted summary judgment to the defendants and these appeals followed. These actions arise out of the same facts as those set out in Executive Financial Services, Inc. v. Loyd, 238 Kan. 663, 715 P.2d 376 (1986) which are repeated here for convenient analysis.
EFS purchased three tractors from Tri-County Farm Equipment Company (Tri-County), a John Deere dealership owned by James Loyd and Gene Mohr. EFS then leased the tractors to Mohr-Loyd Leasing, a partnership between Mohr and Loyd. The first transaction involved John Deere Tractor model No. 8640. On July 19, 1982, on behalf of Tri-County, James Loyd sold the No. 8640 tractor to EFS for $48,000. At the same time, EFS leased the tractor to Mohr-Loyd Leasing. Tri-County gave a corporate guarantee of the lease as authorized by a corporate resolution furnished by Loyd. It was later learned that James Loyd deposited the EFS check to his personal business account.
Similar transactions occurred with regard to two other John Deere tractors. The second sale and lease was completed on August 30, 1982, for $19,000. The third transaction involved a purchase price of $38,000 and was completed on November 3, 1982.
Within two months Loyd sold all three tractors to third parties and Mohr-Loyd Leasing and Tri-County defaulted on the leases. This default was the subject of another action wherein EFS obtained a judgment against Mohr, Loyd, Mohr-Loyd and Tri County for breach of contract. See Executive Financial Services, Inc. v. Loyd, 238 Kan. 663. That judgment is still unsatisfied, making recovery of the tractors important to EFS.
It is important to note that EFS did not take physical possession of the three tractors. Nor did EFS mark or segregate the tractors from other tractors offered for sale by Tri-County to show that either EFS or Mohr-Loyd claimed an interest in them.
EFS filed financing statements on each of the three tractors with the Johnson County Register of Deeds and the Kansas Secretary of State’s office. The statements listed “James B. Loyd and Gene R. Mohr d/b/a Mohr-Loyd Leasing” as the debtor, EFS as a secured party, and each tractor as “equipment leased.” The financing statements were filed on July 28, 1982 (tractor model No. 8640); September 10, 1982 (tractor model No. 2940); and November 12, 1982 (tractor model No. 4440).
Tri-County sold the model No. 2940 tractor to Thompson Implement Company of Holton, Kansas, on September 24, 1982, in the ordinary course of business. Thompson is a merchant engaged in the business of selling farm equipment and machinery. Thompson later sold the model No. 2940 tractor to appellees Donald and Henry Pagel doing business as Pagel and Sons (Pagel). On January 27,1983, Pagel executed a variable rate loan contract-security agreement which granted appellee John Deere Company (Deere) a purchase money security interest .in the No. 2940 tractor. Deere perfected its security interest in the tractor by filing a financing statement with the register of deeds’ office.
Appellee, Marvin Allen, Jr., purchased the model No. 4440 tractor from Tri-County on November 12, 1982. Allen also executed a variable rate loan contract-security agreement granting Deere a purchase money security interest in the No. 4440 tractor. Deere perfected its interest on November 17, 1982, by filing a financing statement with the register of deeds’ office.
Appellees Paul, Ted and Fred Morse, doing business as Riverview Farms, acquired the model No. 8640 tractor from TriCounty in October of 1982. Deere, at one time, claimed a purchase money security interest in the same tractor by virtue of a financing statement filed on October 26, 1982. Northeast Kansas Production Credit Association (PCA) had a security interest in “all farm and ranch machinery and equipment” of Riverview Farms, which was perfected as of March 17, 1981. PCA and Deere stipulated to the fact that Deere failed to file a financing statement within ten days following delivery of the No. 8640 tractor as required by K.S.A. 84-9-301(2). Therefore, the trial court found PCA’s security interest in the tractor was prior and superior to the security interest of John Deere.
When Tri-County sold the three tractors to third parties, Mohr-Loyd defaulted on the respective leases with EFS. EFS then filed the present action.
In granting summary judgment, the district court of Johnson County found Allen and Riverview Farms were buyers in ordinary course of business from Tri-County and pursuant to K.S.A. 84-2-403(2) took free and clear of the security interest of EFS. The district court of Jackson County made a similar finding with respect to the tractor sold to Thompson Implement Company and later to Pagel and Sons and found EFS impliedly consented to the sale of the tractor by Tri-County to Thompson Implement Company. EFS appeals from both judgments.
There are two theories under the UCC which may entitle the buyers of the tractors to prevail in this case. The trial court found the “entrustment theory,” codified at K.S.A. 84-2-403(2), applicable. Appellees argue that even if the trial court erred in applying the entrustment theory, the buyers took free of any security interest of EFS under K.S.A. 84-9-307(1).
Our first concern, however, is whether the transaction between EFS and Mohr-Loyd Leasing is covered by the UCC as a secured transaction since EFS “leased” the tractors to MohrLoyd and lease transactions are excluded from Article 9.
This issue was addressed in Atlas Industries, Inc. v. National Cash Register Co., 216 Kan. 213, 531 P.2d 41 (1975), where we stated in Syllabus ¶ 3:
“A document denominated a ‘lease’ may be construed to create a ‘security interest’ if the terms and contents thereof . . . are more consistent with a security interest than a lease.”
K.S.A. 84-1-201(37) provides that whether a lease is intended as security is to be determined by the facts of each case. That section also provides, where the parties have agreed that upon compliance with the terms of the lease the lessee shall become or has the option to become the owner of the property for no additional consideration or for nominal consideration, the lease is intended for security.
EFS admits in its brief on appeal the option price for the tractor's is nominal as compared to their anticipated fair market value at the end of the lease term and that the lease agreement creates a security interest in each tractor in favor of EFS. This finding is also supported by the fact that EFS filed UCC financing statements on the three tractors, EFS was not a manufacturer or dealer in like equipment and EFS never took physical possession of the tractors.
We hold the transaction between EFS and Mohr-Loyd Leasing was essentially a financing transaction whereby EFS acquired a security interest in the three tractors. The transaction is therefore subject to the UCC.
Having so determined, we turn to the issue of whether the buyers of the tractors took free of EFS’s security interest pursuant to K.S.A. 84-9-307(1), which provides:
“A buyer in ordinary course of business . . . other than a person buying farm products from a person engaged in farming operations takes free of a security interest created by his seller even though the security interest is perfected and even though the buyer knows of its existence.” (Emphasis added.)
Under this section, if Allen, Riverview Farms, Thompson and Pagel were “buyers in ordinary course of business” they would take free of any security interest created “by the seller,” which is Tri-County. However, K.S.A. 84-9-307(1) is inapplicable to the facts in this case because Mohr-Loyd created the security interest in question — not Tri-County. A buyer in ordinary course can only take free of a security interest created “by his seller.” Since the seller of the tractors, Tri-County, did not create the security interest, the buyers cannot take free of that interest under 84-9-307(1).
We next consider whether, as a matter of law, EFS entrusted the three tractors to Tri-County and, under K.S.A. 84-2-403(2), thereby lost any interest it had in them.
The entrustment doctrine is codified at K.S.A. 84-2-403(2):
“Any entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all rights of the entruster to a buyer in ordinary course of business.”
“Entrusting” is defined in K.S.A. 84-2-403(3):
“ ‘Entrusting’ includes any delivery and any acquiescence in retention of possession regardless of any condition expressed between the parties to the delivery or acquiescence and regardless of whether the procurement of the entrusting or the possessor’s disposition of the goods have been such as to be larcenous under the criminal law.”
Since this statute has not been considered by the court in an analogous fact situation, some general background regarding its purpose and effect is helpful.
The Kansas Comment 1983 to K.S.A. 84-2-403 briefly describes the purpose of the provisions in question:
“Subsections (2) and (3) extend prior law in protecting buyers in ordinary course of business from hidden entrusting arrangements with merchant-sellers who deal in goods of the kind. Under these subsections, an owner who entrusts goods to a merchant who deals in goods of the kind may lose his rights as against a buyer in ordinary course of business. Under prior law, such good faith purchasers were protected only under the doctrines of estoppel and the like.”
At common law, the mere entrustment of goods to a merchant who dealt in goods of a kind did not estop the owner from recovering them from a bona fide purchaser for value. This common-law rule has been reversed by UCC § 2-403(2), which provides that any entrusting of possession of goods to a merchant who deals in goods of that kind accords the merchant power to transfer all the entruster’s rights to a buyer in ordinary course of business. Hawkland, UCC Series § 2-403:07, p. 611 (1984).
The entrustment doctrine operates on the assumption that both the entruster and the buyer have been equally harmed by the dishonesty of the merchant-dealer, and resolves the issue in favor of the buyer. This result is explained in Hawkland, UCC Series § 2-403:07, as follows:
“In a broad sense, section 2-402(2) exemplifies one effort to ‘modernize the law governing commercial transactions’ in keeping with the underlying philosophy of the UCC. Accordingly, when a housewife takes her vacuum cleaner for repairs to a merchant who also is in the business of selling vacuum cleaners new and old, the sale by him to a buyer in the ordinary course of business passes a good title to the latter. In this case, the equities of the housewife and the buyer may be said to be equal. The housewife may not have been prudent in entrusting her goods to the dishonest dealer, but, by the same token, the buyer may not have been prudent in buying from him. On the assumption that both the entruster and buyer have been equally victimized by the dishonesty of the merchant-dealer, section 2-403(2) resolves the issue so as to free the marketplace, rather than protect the original owner’s property rights. The rule, however, is an absolute one and does not depend in its operation on any balancing of equities or notions of comparative negligence.” p. 612.
Entrusting typically falls into one of four fact patterns. These patterns are illustrated in White and Summers, Uniform Commercial Code § 3-11, p. 143 (2d ed. 1980):
“First, Ernie Entraster turns his car over to Dave Dealer so that Dave can sell it for Ernie. A buyer in ordinary course takes free of Ernie’s ownership rights. Second, a wholesaler gives Dealer the goods ‘on consignment’ or under a ‘floor planning’ agreement. A buyer in ordinary course from Dealer is not bound by any ‘title retention’ agreement between Dealer and the wholesaler as to passage of title. Third, George leaves goods to be repaired with Dealer who resells them to a buyer in ordinary course. Finally, Edgar buys goods from Dealer but leaves the goods in Dealer’s hands. A buyer in ordinary course cuts off Edgar’s interest.”
The last example is similar to the fact pattern in the present case. EFS purchased three tractors from Tri-County, but left the tractors on Tri-County’s lot. Tri-County later resold the tractors to third parties in ordinary course of business. The situation is made more complicated, however, by the fact that prior to the resale by Tri-County, EFS leased the tractors to Mohr-Loyd Leasing, which operated from the same business premises as Tri-County. Furthermore, EFS obtained a security interest in the tractors from Mohr-Loyd Leasing.
Prior to applying K.S.A. 84-2-403(2) to the facts of the instant case, we must consider its potential conflict with our previous application of 84-9-307(1).
Appellant contends that if a buyer does not qualify for the preferred treatment of K.S.A. 84-9-307(1) because the competing security interest is not created by the seller, the buyer cannot then argue it took free of the security interest under the entrustment theory of 84-2-403(2). This argument has received support among some courts and commentators.
White and Summers argue that priority disputes between secured creditors and subsequent purchasers must be governed exclusively by Article 9 and that a subsequent purchaser who is disappointed under 84-9-307 cannot fall back on 84-2-403 and argue that it renders him superior to a prior security interest. They point to the language of 84-9-306(2) which states:
“Except where this article otherwise provides, a security interest continues in collateral notwithstanding sale, exchange or other disposition thereof unless the disposition was authorized by the secured party in the security agreement or otherwise . . . .” (Emphasis added.)
See White and Summers, Uniform Commercial Code § 25-15, pp. 1073-74 (2d ed. 1980).
There is also authority, however, for applying the entrustment theory where a buyer is unable to prevail under 84-9-307(1). In his treatise, The Law of Secured Transactions Under the Uniform Commercial Code ¶ 3.4[3] (1985 Cum. Supp. No. 3), Professor Barkley Clark recognizes that an entrustment theory may be applicable, even when 84-9-307(1) is not applicable:
“But even if the buyer in ordinary course loses his protection under § 9-307(1) because the security interest was created further up the line, he may be able to prevail on a different theory. This is what happened in In re Woods, where the buyer discovered that a bank had a perfected security interest in the collateral created by a previous owner. The court determined that the ultimate buyer could prevail on an entrustment theory under §§ 2-403(2) and 2-403(3). Those subsections provide that a person who ‘entrusts’ the possession of goods to a dealer loses title to a buyer in ordinary course from the dealer. In the usual case, the outright owner entrusts the goods to the dealer for repair. In this case, it was the bank with its prior perfected security interest which did the entrusting. Certainly there is nothing in the language of § 2-403 that would limit that provision to outright owners as entrusters. The Woods case makes the important point that a prior secured party may do sufficient ‘entrusting’ so that its security interest is lost, even though the security interest was not created by the dealer to which the goods were entrusted. The court in Woods suggested yet another theory to protect the ordinary course buyer: Insofar as the prior secured party permitted the collateral to be delivered to the dealer, it authorized the sale free of its security interest under § 9-306(2). Finally, under either alternative theory, the ultimate buyer was protected even though it knew of the bank’s prior perfected security interest; the court correctly concluded that, in order for the secured party to prevail, it would have to show that the ordinary course buyer knew that the sale was in violation of the prior security interest.”
The facts here, as in In re Woods, 25 Bankr. 924 (Bankr. Tenn. 1982), are distinguishable from the usual case. Typically, the entruster and the holder of the security interest are separate entities with the security holder not involved in the entrustment. In such a case the security interest would continue in the goods because under K.S.A. 84-2-403(2) only the “rights of the entruster” would be transferred. Here, however, the security holder is the entruster and its rights as such are transferred to the buyer.
For K.S.A. 84-2-403(2) to be applicable, three steps are required: (1) An entrustment of goods to (2) a merchant who deals in goods of that kind followed by a sale by such merchant to (3) a buyer in ordinary course of business.
Neither party argues Tri-County is not a “merchant who deals in goods of that kind,” but they disagree as to whether EFS entrusted the tractors to Tri-County and whether one of the transferees was a buyer in the ordinary course of business.
The first question for our consideration is whether EFS entrusted the goods to Tri-County. As noted earlier, “entrusting” is defined atK.S.A. 84-2-403(3) and includes “any delivery and any acquiescence in retention of possession.”
In support of their theory of entrustment, appellees point out that although EFS purchased the tractors from Tri-County, it did not take possession of them. Nor did EFS segregate the tractors from Tri-County’s other inventory, identify the tractors in any way as EFS’s property, or otherwise manifest any sign of ownership which would be evidence to a subsequent purchaser. Appellees contend that by its lack of action, EFS acquiesced in Tri-County’s retention of possession of the tractors.
On the other hand, EFS argues that the mere fact that EFS did not take possession of the tractors does not justify the conclusion that EFS acquiesced in the retention of possession of the tractors by Tri-County. EFS contends that once it leased the tractors to Mohr-Loyd Leasing with the understanding and representation by Mohr-Loyd that the tractors would be leased out to farmers, it became impossible for EFS to acquiesce in the retention of possession of the tractors by Tri-County.
The reason possession was left with the merchant-seller is immaterial under the Code. 3 Anderson, Uniform Commercial Code § 2-403:42, pp. 592-93. The entrustment definition specifically provides that an entrustment can occur “regardless of any condition expressed between the parties to the delivery or acquiescence . . . K.S.A. 84-2-403(3).
Thus, the key factor here is EFS’s knowledge that the tractors would remain in the Tri-County lot. The fact that EFS expected Mohr-Loyd to eventually lease the tractors to farmers is immaterial. We conclude the tractors were entrusted to Tri-County by EFS.
EFS next contends that even if an entrustment occurred, the Johnson County District Court improperly applied K.S.A. 84-2-403(2) to the transaction involving Riverview Farms because Riverview Farms was not a buyer in ordinary course of business. There is no dispute that Allen and Thompson Implement were buyers in ordinary course of business.
K.S.A. 84-1-201(9) defines “buyer in ordinary course of business”:
“ ‘Buyer in ordinary course of business’ means a person who in good faith and without knowledge that the sale to him is in violation of the ownership rights or security interest of a third party in the goods buys in ordinary course from a person in the business of selling goods of that kind .... ‘Buying’ may be for cash or by exchange of other property or on secured or unsecured credit and includes receiving goods or documents of title under a preexisting contract for sale but does not include a transfer in bulk or as security [for] or in total or partial satisfaction of a money debt.”
“Good faith” is defined at K.S.A. 84-1-201(19): “ ‘Good faith’ means honesty in fact in the conduct or transaction concerned.”
First, EFS argues the model No. 8640 tractor was not acquired by Riverview Farms for cash or other valid consideration. Rather, EFS contends the tractor was acquired by utilizing $30,000 of credit owed to Riverview Farms by Tri-County. This contention is based on the fact that in March of 1982, Riverview Farms received two checks from Tri-County totalling nearly $30,000. Ted Morse, one of the partners in Riverview Farms, was unable to explain why the checks were given to Riverview Farms. A few months later in August 1982, Riverview Farms delivered a model No. 8630 tractor to Tri-County to be sold by Tri-County.
Appellees argue Riverview Farms acquired the model No. 8640 tractor in an even exchange for the No. 8630 tractor. They concede Tri-County initially offered to sell the No. 8640 tractor to Riverview Farms for a trade-in of the No. 8630 tractor plus $10,000. Later, however, Tri-County agreed to accept the No. 8630 tractor in an even exchange for the No. 8640 tractor. Appellees explained the $30,000 payment to Riverview Farms as credit received when Tri-County sold a No. 7020 tractor and disc which Riverview Farms had traded to Tri-County.
K.S.A. 84-1-201(9) specifically provides that a transfer in total or partial satisfaction of a money debt does not give the purchaser the status of a “buyer in ordinary course.” Thus, if Riverview Farms acquired the No. 8640 tractor as the result of a credit obtained initially for the model No. 8630 tractor and the extinguishment of a money debt, it did not have “buyer in ordinary course” status. However, if Riverview Farms acquired the No. 8640 tractor in an even exchange for the No. 8630, it did have buyer in ordinary course status since 84-1-201(9) includes an exchange within the definition of “buying.”
The Johnson County District Court made specific findings that Riverview Farms had no actual notice that Mohr-Loyd Leasing existed, that Mohr-Loyd leased the No. 8640 tractor from EFS, or that EFS claimed any interest in the tractor. We conclude the facts justify the district court’s ruling that Riverview Farms, like Thompson, Pagel and Allen, was a buyer in ordinary course of business.
We hold all three tractors were entrusted to Tri-County, a merchant who deals in tractors, by EFS and then sold to Allen, Thompson Implement and Riverview Farms in ordinary course of business.
A final issue presented by this appeal is whether EFS may be estopped from claiming any interest in the tractors. We need not discuss this issue since the case is resolved by our application of the entrustment provisions of K.S.A. 84-2-403(2) and (3).
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The opinion of the court was delivered by
McFarland, J.:
Defendant William G. Barclay is an ordained Baptist minister who operates a wedding chapel in Wichita. Defendant refused to officiate at certain wedding ceremonies to be held in his chapel on the ground that a marriage of a black person and a white person violated his religious beliefs. The District Attorney’s office filed a complaint/information against the defendant charging him with three counts of denial of civil rights contrary to K.S.A. 21-4003(l)(d). The district court dismissed the complaint on the ground that K.S.A. 21-4003 was unconstitutional as applied to defendant herein. The State appeals from said dismissal pursuant to K.S.A. 22-3602(b).
K.S.A. 21-4003 provides:
“Denial of civil rights. (1) Denial of civil rights is denying to another, on account of the race, color, ancestry, national origin or religion of such other:
“(a) The full and egual use and enjoyment of the services, facilities, privileges and advantages of any institution, department or agency of the state of Kansas or any political subdivision or municipality thereof; or
“(b) The full and equal use and enjoyment of the goods, services, facilities, privileges, advantages and accommodations of any establishment which provides lodging to transient guests for hire, or any establishment which is engaged in selling food or beverage to the public for consumption upon the premises, or any place of recreation, amusement, exhibition or entertainment which is open to members of the public; or
“(c) The full and equal use and enjoyment of the services, privileges and advantages of any facility for the public transportation of persons or goods; or
“(d) The full and equal use and enjoyment of the services, facilities, privileges and advantages of any establishment which offers personal or professional services to members of the public; or
“(e) The full and equal exercise of the right to vote in any election held pursuant to the laws of Kansas.
“(2) Denial of civil rights is a class A misdemeanor.” (Emphasis supplied.)
The matter was determined on stipulations of fact entered into by the parties. They are as follows:
“[Originall Stipulation
“1. The defendant is a 70-year-old resident of Sedgwick County, Kansas, and is an ordained Baptist minister, having been ordained January 22, 1941, sponsored by the Burke Baptist Church of Burke, Texas.
“2. That the defendant has on file with the probate court of Sedgwick County, Kansas, the appropriate documentation required under the laws of the State of Kansas to be filed with said court which permits the defendant as a minister of the gospel to perform marriage services, which said document was filed with the probate court of Sedgwick County, Kansas, August 21, 1974.
“3. That the defendant is at this time, still in good standing as an ordained minister in the Baptist Church.
“4. It is agreed that under the laws of the State of Kansas, the only persons permitted to perform marriage ceremonies in Kansas are judges and ministers of the gospel and that in [Sedgwick County] said ministers must be registered with the probate court of Sedgwick County, Kansas.
“5. It is agreed that the defendant has held full time pastorates in Texas and Oklahoma. The defendant was an active full time minister for 17 years, last having held a full time pastorate in Newkirk, Oklahoma, at First Baptist Church in 1957.
“6. It is stipulated that the defendant always involves prayer in his wedding services, but his wedding services are not limited to persons of any particular faith.
“7. It is agreed that the defendant’s listing in the Wichita, Kansas, phone book is not under churches, but is listed under wedding chapels and is the only wedding chapel listed in said phone book’s yellow pages. It is known and commonly referred to as All Faiths Wedding Chapel.
“8. The defendant has refused to marry a black person and a white person on the basis that it is against his religious beliefs, but has permitted such marriages to occur at the All Faiths Wedding Chapel when performed by other ministers or judges. Defendant will marry people of like races.”
“SUPPLEMENTAL STIPULATIONS
“1. No church services (ie., gathering of persons to worship) are performed on the premises under the control of the defendant known as the All Faiths Wedding Chapel.
“2. No person or persons outside of the defendant and his immediate family practice the conviction against marrying persons of different races on the premises known as the All Faiths Wedding Chapel.
“3. Neither the defendant nor the All Faiths Wedding Chapel are exempt from paying either State of Federal income or property taxes.
“4. On the dates indicated in the Complaint/Information filed herein, the defendant refused to marry persons of different races.”
Further, the parties stipulated that the following (in affidavit form) would be the substance of defendant’s testimony on direct examination if called to testify:
“I. Affiant states that he was ordained a Baptist minister in 1941 and remains an ordained minister. I was a full time minister for 17 years and last was a minister of the First Baptist Church at Newkirk, Oklahoma, departing that church as their minister about 1957.
“2. Affiant states that at one time he performed a marriage between a black person and a white person, which function bothered him a great deal. Affiant consulted his Bible (the King James version) at great length and concluded that it was not proper under the teachings of the Bible for a black and a white to marry. The basis of affiant’s religious belief is the Bible and therefore, under its teachings, he as a matter of religious belief, refuses to marry a black and a white.
“3. Affiant states that there are 30 references to the mixing of the races and of nations in the Bible, and as affiant studies and interprets the word of God as set forth in the Bible, we are taught that each must marry his own kind and affiant will furnish the citations in the Bible and his interpretation of them on request.
“4. Affiant states that he will not marry the black and the white as it would constitute a mixing of the races. His refusal to conduct the marriage sacrament between a black and a white is based on a deep seated religious belief. Affiant will however, conduct the marriage sacrament when a black marries a black.”
Additionally, it was stated in arguments before the district court and this court that while defendant would not personally perform the marriage sacrament to interracial couples, such marriages have been conducted at the wedding chapel with defendant arranging for a judge to officiate therein. The State does not challenge these factual contentions and we accept them, as did the district court, as a part of the stipulated facts.
Pertinent Kansas statutes relative to marriage are as follows:
K.S.A. 23-101: “Nature of marriage relation. The marriage contract is to be considered in law as a civil contract between two parties who are of opposite sex, to which the consent of the parties is essential; and the marriage ceremony may be regarded either as a civil ceremony or as a religious sacrament, but the marriage relation shall only be entered into, maintained or abrogated as provided by law.”
K.S.A. 1984 Supp. 23-104a: “Solemnizing marriage; persons authorized to officiate, (a) Marriage may be validly solemnized and contracted in this state, after a license has been issued for the marriage, in the following manner: By'the mutual declarations of the two parties to be joined in marriage, made before an authorized officiating person and in the presence of at least two competent witnesses over 18 years of age, other than the officiating person, that they take each other as husband and wife.
“(b) The following are authorized to be officiating persons:
“(1) Any currently ordained clergyman or religious authority of any religious denomination or society;
(2) any licentiate of a denominational body or an appointee of any bishop serving as the regular clergyman of any church of the denomination to which the licentiate or appointee belongs, if not restrained from so doing by the discipline of that church or denomination;
(3) any judge or justice of a court of record; and
(4) any retired judge or justice of a court of record.
“(c) The two parties themselves, by mutual declarations that they take each other as husband and wife, in accordance with the customs, rules and regulations of any religious society, denomination or sect to which either of the parties belong, may be married without an authorized officiating person.”
Does K.S.A. 21-4003(l)(d) compel defendant to perform, personally, the wedding ceremony to any couples with; (1) legal capacity to marry; and (2) adequate funds to pay for the services? We believe not.
The First Amendment to the United States Constitution provides:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
While the First Amendment says that “Congress shall make no law . . it goes without saying that, at this point in the development of constitutional theory, the First Amendment is applied to the states through the Fourteenth Amendment. See, e.g., Powers v. State Department of Social Welfare, 208 Kan. 605, 614, 498 P.2d 590 (1972).
Section 7 of the Kansas Constitution Bill of Rights provides:
“Religious liberty. The right to worship God according to the dictates of conscience shall never be infringed; nor shall any person be compelled to attend or support any form of worship; nor shall any control of or interference with the rights of conscience be permitted, nor any preference be given by law to any religious establishment or mode of worship. No religious test or property quali fication shall be required for any office of public trust, nor for any vote at any election, nor shall any person be incompetent to testify on account of religious belief.”
Defendant’s capacity to perform weddings in Kansas is derived wholly from his status as an ordained clergyman, and when he is officiating at a wedding, he is performing a religious sacrament. Clearly, ownership of the wedding chapel business does not require the owner to be ordained. A lay person could own such a business and make arrangements, when requested, for a person (judge or minister) to officiate at the ceremony. Use of the premises with such additional amenities as the couple may contract for and receipt of the personal services of the defendant in officiating at the ceremony are not components of one indivisible unit. Couples patronizing the wedding chapel may, in essence, rent the physical premises and make their own arrangements for a person to officiate (minister or judge). On request, defendant may make arrangements for the services of a person to officiate. Or, defendant may perform the wedding himself.
The facts herein are readily distinguishable from those in State ex rel. Pringle v. Heritage Baptist Temple, Inc., 236 Kan. 544, 693 P.2d 1163 (1985); and State ex rel. O’Sullivan v. Heart Ministries, Inc., 227 Kan. 244, 607 P.2d 1102 (1980), where licensure of a church-operated day-care center and a children’s boarding home, respectively, were at issue.
Through criminal charges the State is attempting to punish an ordained minister (and deter him and other ministers from future like conduct) for refusing to perform the marriage sacrament for particular couples when said refusal was based upon the minister’s sincere personal religious beliefs. It is not the function of the courts to determine what is or is not the correct interpretation of the biblical passages relied upon for such beliefs. The parties have not cited, nor has our research revealed, a single case from any jurisdiction within the United States where criminal prosecution of a minister has been attempted under even remotely comparable circumstances. Refusal of a minister, personally to perform a marriage, is not a life-threatening situation which might compel a court’s intervention in what is otherwise a “hands off’ constitutionally protected area.
The trial court dismissed the criminal charges herein on the basis that K.S.A. 21-4003 was unconstitutional as applied to defendant under the circumstances herein.
As stated in U.S.D. No. 503 v. McKinney, 236 Kan. 224, 689 P.2d 860 (1984):
“Longstanding and well-established rules are that the constitutionality of a statute is presumed, that all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the Constitution. Moreover, it is the duty of the court to uphold the statute under attack, whenever possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally sound, that should be done. State, ex rel., v. Fadely, 180 Kan. 652, 658-59, 308 P.2d 537 (1957); Wall v. Harrison, 201 Kan. 600, 603, 443 P.2d 266 (1968); Moore v. Shanahan, 207 Kan. 645, 651, 486 P.2d 506 (1971); 16 Am. Jur. 2d, Constitutional Law § 254, pp. 719-73. See Leek v. Theis, 217 Kan. 784, 792-93, 539 P.2d 304 (1975).” 236 Kan. at 230-31.
The reasoning behind these well-established rules of statutory construction was stated in State v. Smiley, 65 Kan. 240, 69 Pac. 199 (1902), as follows:
“ ‘If the intention of any part of the act, determined upon settled principles of legal interpretation, were to obstruct or impede the exercise or enjoyment of any right secured by the constitution of the United States, or by any constitutional law of the United States, that part would be unconstitutional. But if the intention thus determined were merely to establish, regulate, or guarantee rights or privileges consistent with the constitution and laws of the United States, in a mode not in conflict with either, and if the act would constitutionally apply to a large class of cases that do and will exist, it would not be rendered unconstitutional by the fact that, literally construed, its language might be broad enough to extend to a few exceptional cases where it could not constitutionally apply; since, upon settled principles of construction, the latter are as fully and effectually excepted by necessary implication, as if the statute had contained an express proviso that it should not extend or apply to such cases. The rule of construction universally adopted is, that when a statute may constitutionally operate upon certain persons, or in certain cases, and was not evidently intended to conflict with the constitution, it is not to be held unconstitutional merely because there may be persons to whom or cases in which it cannot constitutionally apply; but it is to be deemed constitutional, and to be construed not to apply to the latter persons or cases, on the ground that courts are bound to presume that the legislature did not intend to violate the constitution.’ ” 65 Kan. at 250-51 (quoting Opinion of the Justices, 41 N.H. 553, 554-55 [1861]).
If K.S.A. 21-4003(l)(d) were intended by the legislature to include an ordained minister’s refusal to perform religious sacraments within the term “personal or professional services,” then the statute would be constitutionally invalid. We must presume the legislature did not intend such a result. We, therefore, conclude said statute was not intended to apply, and does not apply, to an ordained minister’s refusal, based upon his religious beliefs, to perform a wedding ceremony; and that the trial court did not err in dismissing the criminal charges herein.
The judgment is affirmed.
Holmes, J., not participating.
Herd, J., concurs in result. | [
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The opinion of the court was delivered by
Herd, J.:
This is a wrongful death action brought by Frank and Mary Lee, the parents of Frank James Lee, Jr. They allege Frank Jr.’s death resulted from injuries suffered when his motorcycle collided with steel cables strung between trees in Gunn Park in the City of Fort Scott.
In the mid-1970’s, Fort Scott was faced with a problem of vandalism on a golf course maintained by the the City in Gunn Park. The City was concerned with persons driving their vehicles off the road and onto the fairways and greens. In response to this concern, in 1975 the City strung steel cables around the golf course. The cables were located off the road and posed no hazard to anyone properly using the roadway. As an additional restraint, the City enacted an ordinance prohibiting any motor vehicle from driving off of regularly traveled roadways. However, no notice of this prohibition was posted anywhere in Gunn Park.
On April 10, 1982, eighteen-year-old Frank James Lee, Jr., while riding his motorcycle in Gunn Park, collided with steel cables strung between two trees. Frank, Jr. had ridden motorcycles for at least two years prior to the accident and about two months before the accident he had bought his own motorcycle. It is not known whether Frank Lee, Jr. had ever ridden a motorcycle in the area of Gunn Park where the accident occurred; however, he was familiar with the park.
After the accident, Frank Jr., was taken to Mercy Hospital in Fort Scott, where emergency surgery was performed to repair lacerations of his liver. He was released from the hospital on April 20, 1982, but his condition worsened and he was readmitted to Mercy Hospital on April 25, 1982. Two additional operations failed to repair his liver damage and he was transferred to the Kansas University Medical Center on April 26, 1982, where he underwent six more operations. His condition continued to worsen, however, and on May 18, 1982, he died of continued liver hemorrhage.
Appellants, Frank Lee Sr. and Mary Virginia Lee, filed this wrongful death action on November 30, 1982. Almost two and one-half years later, in response to the City of Fort Scott’s motion for summary judgment, the trial court found as a matter of law that appellants had failed to produce any evidence of “gross and wanton negligence” as required by K.S.A. 75-6104(n). Accordingly, the trial court granted the City of Fort Scott’s motion for summary judgment. The Lees appeal.
The Sole issue on appeal is whether the trial court erred in finding as a matter of law that defendant was not guilty of gross and wanton negligence.
The Kansas Tort Claims Act (KTCA) imposes governmental liability (K.S.A. 75-6103) for wrongful conduct subject to a number of exceptions set out at K.S.A. 75-6104.
Roth parties concede the exception found at K.S.A. 75-6104(n) is applicable to the present case. It provides:
“A governmental entity or an employee acting within the scope of the employee’s employment shall not be liable for damages resulting from:
“(n) any claim for injuries resulting from the use of any public property intended or permitted to be used as a park, playground or open area for recreational purposes, unless the governmental entity or an employee thereof is guilty of gross and wanton negligence proximately causing such injury.”
Therefore, in order to hold the City of Fort Scott liable for the death of Frank Lee, Jr., appellants must show the City’s action in erecting the steel cables constituted gross and wanton negligence and was the proximate cause of the injuries resulting in his death.
After examining the discovery record, the trial court determined appellants had failed to produce any evidence that the City was guilty of gross and wanton negligence as that term has been defined by this court. Therefore, the trial court granted the City’s motion for summary judgment. Appellants now contend the trial court erred in finding as a matter of law there was no gross and wanton negligence on the part of the City.
In Willard v. City of Kansas City, 235 Kan. 655, 658, 681 P.2d 1067 (1984), we set out the test for gross and wanton negligence:
“ ‘Proof of a willingness to injure is not necessary in establishing gross and wanton negligence. This is true because a wanton act is something more than ordinary negligence but it is something less than willful injury. To constitute wantonness the act must indicate a realization of the imminence of danger and a reckless disregard or a complete indifference or an unconcern for the probable consequences of the wrongful act.’ ” Quoting Britt v. Allen County Community Jr. College, 230 Kan. 502, Syl. ¶ 5, 638 P.2d 914 (1982).
In Willard, as in the present case, the issue before the court was whether the trial court erred in granting summary judgment to the defendant based upon a finding that plaintiffs had failed to show gross and wanton negligence as required by K.S.A. 75-6104(n). The plaintiff in Willard sought damages for cuts and other injuries he had suffered to his face and head when he collided with a chain link fence around a baseball diamond in a city park in Kansas City, Kansas. The plaintiff alleged the City was negligent in installing and maintaining a fence with sharp, cutting edges along the top in an area where accidents such as that had by plaintiff were likely to occur.
After setting out the general rules of summary judgment, the court noted:
“This court has also emphasized the responsibility of a party opposing summary judgment to take steps to provide evidence by way of deposition or affidavits in opposition to the motion or if necessary to request time to make additional discovery. The nonmoving party cannot rely solely upon the allegations in his pleadings. He must come forward with something of evidentiary value to justify his position.” 235 Kan. at 657.
We held in Willard that since the plaintiff failed to produce affidavits or other'evidence showing the facts and circumstances from which the City’s gross and wanton conduct could be inferred, summary judgment was proper. The Court noted that mere negligence on the part of the City, which was all that was alleged in plaintiff s petition, was insufficient to establish a basis of liability under the KTCA.
In the present case, appellants did allege gross and wanton negligence on the part of the City in their petition. However, as in Willard, they failed to produce any evidence which would establish gross and wanton conduct, other than the fact the City had strung cables between the trees in the park.
In Britt v. Allen County Community Jr. College, 230 Kan. 502, 510, 638 P.2d 914 (1982), the court described the evidence necessary to establish wanton and reckless conduct:
“To constitute wanton and reckless conduct, there must be evidence to establish a realization of the imminence of danger and a reckless disregard or complete indifference to the probable consequences.”
As support for their allegations of gross and wanton conduct on the part of the City, appellants refer us to several facts established through discovery. First, they point out the City had posted no signs in Gunn Park warning of the presence of the cables, nor were there any signs prohibiting the operation of motorcycles off the roadway. Additionally, appellants note the City was aware motorcycles and other vehicles were operated off the roadway, since the City had issued a number of traffic citations for driving off the roadway in Gunn Park.
We find the evidence presented by appellants fails to give rise to even an inference of gross and wanton negligence. In Willard, we suggested the character of evidence which a plaintiff must offer to give rise to an inference of gross and wanton negligence:
“No evidence was offered that the City violated any standards or other municipal ordinances governing the installation of fencing in public areas, or that the City had notice of the potentially dangerous condition of the fence, which might give rise to an inference of gross and wanton negligence on the part of the City.” 235 Kan. at 659.
The fact that the City had issued a number of traffic citations for driving off the roadway does not prove the City had notice of the potentially dangerous placement of the steel cables. Appellants failed to offer any evidence which would establish that the City realized the imminence of danger and exhibited a complete disregard of the consequences. Rather, the evidence showed that at the time the accident occurred, the steel cables had been in place for approximately seven years. The cables were erected to deter vandalism to the golf course and were located off the roadway. No other accidents involving the steel cables had been reported to the City. There is no evidence of a reckless disregard of a known danger and thus no gross and wanton negligence.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Lockett, J.:
This appeal was brought by the State on a question reserved for the purpose of determining whether the trial court erred by suppressing evidence seized during the execution of a search warrant on private premises. The evidence was taken from the purse of an individual neither named nor described in the warrant.
Police officers, armed with a search warrant authorizing the search of an apartment and its occupant, known as Randy, for a white powder that was believed to be cocaine, entered the apartment where they discovered three women. One of the women was sick in bed, and the other two were seated at a table in the kitchen. Between the two women was a serving tray containing marijuana and a partially burned, hand-rolled cigarette, which the officer believed to be marijuana.
A detective placed all three women under arrest for possession of marijuana and moved them into the living room. He then returned to the kitchen and searched a purse that was on the kitchen table. Marijuana and some white powder, later identified as amphetamine, were found within the purse. The detective called the defendant back into the kitchen and asked if the purse belonged to her. When the defendant acknowledged ownership of the purse, she was arrested for possession of methamphetamine.
The defendant filed a motion to suppress which was considered and overruled by the judge during the trial to the court. After being found guilty, the defendant filed a motion for a new trial, claiming the judge erred in admitting the evidence seized from the defendant’s purse. At the hearing on the motion, the judge concluded that, based upon Ybarra v. Illinois, 444 U.S. 85, 62 L.Ed.2d 238, 100 S.Ct. 338 (1979), and Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968), he had erred when he failed to suppress the evidence. The State reserved that question. K.S.A. 22-3602(b)(3). The judge then found the defendant not guilty.
The defendant contends that the State insufficiently reserved the question because it did not specify what question it wanted to appeal. In State v. Crozier, 225 Kan. 120, 123-124, 587 P.2d 331 (1978), this court said that no formal procedural steps are required by the statute in order to appeal on a question reserved. “All that is necessary for the state to do to reserve a question for presentation on appeal to the supreme court is to make proper objections or exceptions at the time the order complained of is made or the action objected to is taken.” A review of the transcript of the hearing shows that the State was objecting to the judge’s suppression of the evidence, and it reserved that question.
The State contends that the trial judge’s decision was wrong because Ybarra v. Illinois, 444 U.S. 85, neither limits the scope of K.S.A. 22-2509 nor is applicable to this case. It contends (1) that Ybarra involved a public place, not a private one; and (2) that Ybarra involved evidence found upon a person rather than evidence setting on a table and not in the possession of a person.
In Ybarra, an Illinois state court had issued a warrant to search a tavern and bartender for evidence of narcotics. On entering the tavern to execute the warrant, officers announced their purpose and advised those present that they were going to conduct a cursory search for weapons. One of the officers felt what he described as a “cigarette pack with objects in it” in his first pat-down of the appellant, a patron of the bar. He patted down other customers before returning to the appellant, at which point he retrieved a cigarette pack filled with heroin.
Ybarra was indicted for unlawful possession of a controlled substance. He filed a pretrial motion to suppress the contraband seized from him at the tavern. The trial court denied the motion, holding that the search of Ybarra was sanctioned by an Illinois statute similar in wording to K.S.A. 22-2509. On appeal, the United States Supreme Court held that the searches of appellant and the seizure of articles in his pocket violated the Fourth Amendment. The Supreme Court reasoned that probable cause to search Ybarra was absent both at the time of the issuance of the warrant and on entering the tavern. The Court also rejected the appellee’s argument that the Fourth Amendment permits statutorily authorized searches of persons who, “at the commencement of the search, are on ‘compact’ premises subject to a warrant, at least where the police have a ‘reasonable belief such persons ‘are connected with’ drug trafficking and ‘may be concealing or carrying away the contraband.’ ” 444 U.S. at 94.
The scope of the constitutional protections afforded by the Kansas Constitution Bill of Rights, Section Fifteen, and the Fourth Amendment to the United States Constitution is usually considered to be identical. State v. Fortune, 236 Kan. 248, Syl. ¶ 1, 689 P.2d 1196 (1984). The Fourth Amendment protects individuals against unreasonable searches and seizures by the government. This protection applies to any interest in which an individual has a reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 351-53, 19 L.Ed.2d 576, 88 S.Ct. 507 (1967).
The State contends that K.S.A. 22-2509 expressly authorizes the search of any person on the premises at the time of a warrant’s execution and that any limitation imposed by Ybarra applies only to public places and not private premises. Lambert contends that the issuance of a search warrant provides the officer executing the warrant only a limited right to search all persons and the personal effects of those persons named or described in the warrant during its execution.
K.S.A. 22-2509 provides:
“In the execution of a search warrant the person executing the same may reasonably detain and search any person in the place at the time:
(a) To protect himself from attack, or
(b) To prevent the disposal or concealment of any things particularly described in the warrant.”
Does the statute grant law enforcement officers executing a search warrant an unlimited right to detain and search those persons and their personal effects, not named or described in the warrant, that just happen to be within the described area of search?
The essence of the Fourth Amendment prohibition against unreasonable search and seizure is to safeguard the privacy and security of individuals against arbitrary invasions by government officials by imposing a standard of reasonableness upon the exercise of those officials’ discretion. State v. Deskins, 234 Kan. 529, Syl. ¶ 5, 673 P.2d 1174 (1983). Except in certain carefully defined classes of cases, a search of private property without proper consent is unreasonable unless it has been authorized by a valid search warrant. State v. Deskins, 234 Kan. 529, Syl. ¶ 6.
Here the search warrant issued by the judge described the person and item to be searched for and seized. The specificity requirement of the Fourth Amendment, that the search warrant must describe the premises to be searched with sufficient particularity to permit the executing officer to locate the same from the face of the warrant, was met. State v. McClelland, 215 Kan. 81, 523 P.2d 357 (1974).
Does the fact that the search was conducted in a private place rather than a public place distinguish this case from Ybarra? At least three other states have considered the private versus public issue. In State v. Weber, 64 Or. App. 459, 668 P.2d 475 (1983), police executing a search warrant entered private property to search for drugs. Because the defendant did not maintain eye contact, the officer felt he might be armed and dangerous and conducted a pat-down search of him. The Oregon court found under Ybarra the search was illegal and said that it could “see no reason why the principles announced in Terry and Ybarra should not apply equally to pat-down searches conducted on private property and on property open to the public.” 64 Or. App. at 463.
In Lippert v. State, 664 S.W.2d 712, 718 (Tex. Crim. 1984), the Texas court determined “[t]he private versus public distinction is fallacious and ignores the real teachings of Ybarra,” that constitutional protections are possessed individually, and that the Fourth and Fourteenth Amendments protect persons, not places.
The same conclusion was reached by the Illinois court in People v. Gross, 124 Ill. App. 3d 1036, 465 N.E.2d 119 (1984). There the police had obtained a warrant to search the premises and person of Tom Sawyer for contraband. The defendant, who was not named or described in the search warrant, was present at Sawyer’s residence along with four other persons when the warrant was executed. The police searched the defendant’s purse, which was lying near her on a table, and found some green leafy plant material and a substance later identified as cocaine. The State argued that the search of the defendant’s purse was justified on the basis of the Illinois criminal statute similar to K.S.A. 22-2509. The court said it was reasonable to believe that a woman would have an expectation of privacy in her purse and its contents. The defendant’s mere nearness to others independently suspected of crime does not lead to an inference of probable cause to search that person.
In State v. Peters, 5 Kan. App. 2d 44, 611 P.2d 178 (1980), law enforcement officers allowed the defendant to enter into the apartment they had previously secured, and then searched the defendant under K.S.A. 22-2509. The Court of Appeals applied the Ybarra rationale in determining that, absent probable cause, a warrant to search the premises of a residence does not authorize the search of a person who coincidentally enters the residence after the execution of the warrant. Ybarra was applied to the execution of a search warrant of private premises. We agree that the principles stated in Terry and Ybarra apply equally to searches conducted on private property or on property open to the public.
This court has considered whether K.S.A. 22-2509 sanctions the search of a nonresident or his belongings on the premises solely on the basis of the execution of a search warrant. In State v. Loudermilk, 208 Kan. 893, 494 P.2d 1174 (1972), the detention and search of a person on the described premises was held reasonable. Because the affidavit accompanying the application stated that persons within the premises were conducting illegal drug sales, Loudermilk is distinguishable and not overruled by Ybarra.
In State v. McClelland, 215 Kan. 81, 523 P.2d 357 (1974), officers were dispatched to execute a search warrant of a private residence. Approaching the residence, they noticed an automobile parked on the street directly in front of the house. One person was sitting in the automobile and another was standing beside it. Officers first searched the driver and then the automobile, finding illegal drugs during both searches. The McClelland court expanded the term “premises” to include both the house and the street adjacent to the premises as part of the curtilage to be included within the scope of K.S.A. 22-2509. We are not aware if the warrant contained a description of McClelland or his participation in suspected criminal activity and are unable to determine whether the affidavit or circumstances supplied probable cause to search the defendant or his car during the execution of that search warrant.
In State v. Jacques, 225 Kan. 38, 587 P.2d 861 (1978), officers executing a search warrant were attempting to secure the premises when they noticed that Jacques placed several balloons in his mouth and was attempting to swallow them. Officers grabbed the defendant and forced him to spit out the balloons, which were later found to contain heroin. The defendant complained that the search was illegal. The court determined that the officers had probable cause to believe that a crime was being committed in their presence and had a right to take reasonable measures to insure that the incriminating evidence was not destroyed. The evidence in Jacques was seized pursuant to the Terry doctrine and not under K.S.A. 22-2509.
Here, when the search warrant was executed, the officers had no probable cause to believe that any person found in the apartment, except Randy, would be violating the law. The officers did (possess a warrant based on probable cause to search the kitchen in the apartment where the defendant was sitting. Even though the search warrant was being executed, each individual in the apartment who was neither named nor described in the warrant retained individual protections against an unreasonable search or seizure separate and distinct, from the rights of those persons described in the warrant. A person’s mere nearness to others independently suspected of criminal activity does not, without more evidence, give rise to probable cause to search that person. Since the officer executing the search warrant had no reason to believe that the purse lying on the kitchen table next to the defendant belonged to Randy, the officer could not reasonably believe that the purse was part of the premises described in the search warrant.
Under proper circumstances the police may search a nonresident visitor or his belongings in the course of executing a warrant for a premises search. These circumstance's include: where the individual consents to being searched, where the item is in plain view on the person or in his possession, where there has been a valid arrest and where there is probable cause to search plus exigent circumstances. A search may also be conducted under the Terry exception, which allows a stop and frisk where there is a reasonable belief that the person is armed and dangerous.
The State further claims that the judge erred when he determined there were not sufficient facts to justify the search of Lambert’s purse by the officer who had arrested her for possession of marijuana. This question need not be entertained since it does not raise an issue of state-wide interest. Furthermore, 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. Holland, 236 Kan. 840, Syl. ¶ 1, 696 P.2d 401 (1985).
We note that the trial judge did not declare K.S.A. 22-2509 unconstitutional. The United States Supreme Court in Ybarra did not declare a similar Illinois statute to be unconstitutional. Both restricted such statutes from being open-ended or from diminishing constitutional rights of individuals. Each determined that a legislature cannot by statute make a search warrant a general warrant to search, thereby depriving individuals of rights guaranteed by the Constitution.
The appeal by the State is denied. | [
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|
The opinion of the court was delivered by
Herd, J.:
This is an appeal from a district court order construing the provisions of a joint, mutual and contractual will.
John and Jean Jud were husband and wife. Both of the Juds had been previously married and each had two children by their previous marriages. On August 27, 1981, they executed a joint, mutual and contractual will.
John Jud died on June 24, 1982, less than one year after the execution of the joint will. He was survived by his wife, Jean Jud, and his two daughters from the previous marriage, Linda Mark and Terri Kerrigan. Linda and Terri are the appellants in this action.
The will was admitted to probate in Johnson County and Jean Jud was appointed executrix of the estate.
In her initial inventory and appraisal of the decedent’s estate, Mrs. Jud listed all property she held in joint tenancy with the deceased as non-probate assets under the heading “Jointly Owned Property.” In response to written defenses filed by the decedent’s daughters, Mrs. Jud later included the joint tenancy property in her “Amended Account of Probate Assets.”
The decedent’s daughters filed written defenses to Mrs. Jud’s petition for final settlement of decedent’s estate. In support of their written defenses, the daughters requested the trial court to construe provisions of the will to find: (1) the contractual provisions of the will apply to after-acquired property of the survivor; (2) the joint tenancy ownership of real and personal property was severed when John and Jean Jud signed the will; (3) Mrs. Jud should be required to file periodic accountings of her management and consumption of the residue of decedent’s estate for the protection of the remaindermen; and (4) decedent’s daughters should be allowed, reimbursement from decedent’s estate for their legal expenses and costs.
A hearing was conducted on the petition. On March 7, 1984, the district court issued an order construing the terms of the will, determining that the after-acquired property of the survivor of the Juds is not subject to the terms of the joint, mutual and contractual will and the joint tenancy ownership of property was not severed by the contractual will. Additionally, the trial court found that Mrs. Jud is not required to file accountings or post a surety bond and the appellants are not entitled to receive their legal fees from decedent’s estate.
A journal entry of judgment was agreed upon by the parties and signed by the trial judge. Mrs. Jud then filed a “Petition for Order Nunc Pro Tunc” on the grounds that the Journal Entry of Final Settlement misstated the court’s ruling concerning the legal interest of the surviving spouse in the joint tenancy properties by describing her as life tenant thereof.
The trial judge then issued a nunc pro tunc order ruling that Mrs. Jud’s interest in the estate was not limited to “only a life estate conditioned on death.” Rather, the court held Mrs. Jud’s interest to be controlled by the express language of the contract and the use of the term “life tenant” in the journal entry was not appropriate.
The decedent’s daughters appeal.
The first two issues on appeal involve construction of the joint, mutual and contractual will. The will provides:
"I, John F. Jud, Jr., and I, Jean N. Jud, husband and wife, of the City of Leawood, Johnson County, and State of Kansas, do hereby make and publish this Joint, Mutual and Contractual Will, revoking all other Wills by either or both of us at any time heretofore made.
“1. We direct the Executor to pay out of the residue of our estate all estate and inheritance taxes assessed by reason of each of our deaths and our just debts, funeral expenses, and costs of estate administration.
• “2. Regardless of the order of our deaths, I, John, give and bequeath my large diamond ring (the diamond was taken from my mother’s engagement ring) to my daughter, Terri Kerrigan, if she survives me, otherwise to my daughter, Linda Mark.
“3. Regardless of the order of our deaths, I, John, give and bequeath the gold charm bracelet that belonged to my mother, if owned by me at the time of my death, to my daughter, Linda Mark, if she survives, otherwise to my daughter, Terri Kerrigan.
“4. Regardless of the order of our deaths, I, Jean, give and bequeath my diamond engagement ring and my diamond pendant to my daughter, Sue Stahl, if she survives me, otherwise to my son, Jeffrey Anderson.
“5. Regardless of the order of our deaths, I, Jean, give and bequeath my hand-carved Oriental coffee table to my son, Jeffrey Anderson, if he survives me, otherwise to my daughter, Sue Stahl.
“6. The items of tangible personal property listed on a list signed by both of us as such list exists at the time of the death of the first of us to die shall be distributed in accordance with the provisions of such list.
“7. We mutually give, devise and bequeath to whichever of us shall be the survivor the entire residue of our property and estate which we may respectively own at our death. The survivor of us shall have the use and enjoyment of such property during his or her lifetime; provided, however, said property (including any thereof that may have been separately owned by the survivor) may not be given away or consumed by the survivor except to the extent necessary to maintain for the survivor the standard of living to which he or she was accustomed during our lifetime. The survivor shall have the power to sell or otherwise dispose of any or all of such property for an adequate consideration but shall not consume or dispose of the proceeds except to the extent necessary to maintain his or her standard of living as aforesaid. The restrictions hereby imposed shall be applicable to all of our property (except that bequeathed by paragraphs 2 through 6 of this Will) whether owned by either or both of us.
“8. Upon the death of the survivor of us, we mutually give, devise and bequeath the entire residue of our property and estate as follows:
“One-fourth (14) thereof (or one-half (14) thereof if John’s daughter, Linda Mark, does not survive the survivor of us and if Linda Mark has no children who survive the survivor of us) to John’s daughter, Terri Kerrigan, if she survives the survivor of us, otherwise to her children in equal shares who survive the survivor of us.
“One-fourth (14) thereof (or one-half (14) thereof if John’s daughter, Terri Kerrigan, does not survive the survivor of us and if Terri Kerrigan has no children who survive the survivor of us) to John’s daughter, Linda Mark, if she survives the survivor of us, otherwise to her children in equal shares who survive the survivor of us.
“One-fourth (14) thereof (or one-half (14) thereof if Jean’s son, Jeffrey Anderson, does not survive the survivor of us and if Jeffrey Anderson has no children who survive the survivor of us) to Jean’s daughter, Sue Stahl, if she survives the survivor of us, otherwise to her children in equal shares who survive the survivor of us.
“One-fourth (14) thereof (or one-half (14) thereof if Jean’s daughter, Sue Stahl, does not survive the survivor of us and if Sue Stahl has no children who survive the survivor of us) to Jean’s son, Jeffrey Anderson, if he survives the survivor of us, otherwise to his children in equal shares who survive the survivor of us.
“9. If the survivor of us remarries, then immediately after such remarriage, the survivor shall sell and otherwise convert into cash all of the residue of our estate (including any property that may be owned as the separate property of the survivor, except any of the property bequeathed by paragraphs 2 through 6 hereof). The survivor shall distribute one-half (14) of such property (including the proceeds of such sale or disposition) as soon as converted into cash as follows: “If the survivor of us is John, then said one-half (14) shall be distributed as follows:
“One-half (14) of said one/half (14) (or all of said one-half (14) if Sue Stahl is not then living and if Sue Stahl has no children then living) to Jean’s son, Jeffrey Anderson, if he is then living, otherwise to his children then living in equal shares.
“One-half (14) of said one-half (14) (or all of said one-half (14) if Jeffrey Anderson is not then living and if Jeffrey Anderson has no children then living) to Jean’s daughter, Sue Stahl, if she is then living, otherwise to her children then living in equal shares.
“If the survivor of us is Jean, then said one-half (14) shall be distributed as follows:
“One-half (14) of said one-half (14) (or all of said one-half if Linda Mark is not then living and if Linda Mark has no children then living) to John’s daughter, Terri Kerrigan, if she is then living, otherwise to her children then living in equal shares.
“One-half (14) of said one-half (14) (or all of said one-half (14) if Terri Kerrigan is not then living and if Terri Kerrigan has no children then living) to John’s daughter, Linda Mark, if she is then living, otherwise to her children then living in equal shares.
“The provisions of paragraph 8 of this Will for the benefit of any beneficiary shall be revoked and shall no longer be in effect upon the distribution to such beneficiary of his or her share of our estate pursuant to the provisions of this paragraph 9.
“The provisions of paragraph 10 hereof appointing any beneficiary as an Executor of this Will shall be revoked and shall no longer be in effect upon the distribution to such beneficiary of his or her share of our estate pursuant to the provisions of this paragraph 9.
“The survivor of us shall have satisfied all contractual obligations imposed by the provisions hereof when one-half (%) of the residue and remainder of our estate shall have been converted into cash and distributed pursuant to the provisions of this paragraph 9 and the restrictions imposed upon the survivor by the provisions hereof shall thereupon cease and be of no further force and effect.
“10. We appoint the survivor of us Executor of this Will. If the survivor shall fail to qualify or cease to act as Executor hereof, then we appoint Jean’s son, Jeffrey Anderson, and John’s daughter, Linda Mark, as Executors in his or her place. If Jeffrey Anderson shall fail to qualify or cease to act as an Executor hereunder, then we appoint Jean’s daughter, Sue Stahl, as successor Co-Executor iñ his place. If Linda Mark shall fail to qualify or cease to act as an Executor hereunder, then we appoint John’s daughter, Terri Kerrigan, as successor Co-Executor in her place. We direct that no bond or other security shall be required of any Executor herein named who may qualify as such. The Executor or Executors shall have the power, without order of any court, to sell all or any part of the property, real, personal or mixed, other than that specifically bequeathed by the provisions of paragraphs 2 through 6 hereof, which comes into the hands of the Executor or Executors at such time, upon such terms, in such manner and for such prices as to the Executor or Executors shall seem advisable and to execute and deliver good and sufficient deeds and bills of sale conveying the title thereto to the purchaser.
“11. Our purpose is to dispose of our property in accordance with a common plan. The reciprocal and other gifts made herein are in fulfillment of this purpose and in consideration of each of us waiving the right, during our joint lives, to alter, amend, or revoke this Will in whole or in part, by Codicil or otherwise, without the consent of the other, or under any circumstances after the death of the first of us to die and prior to the satisfaction of the obligations imposed by the provisions of paragraph 9 hereof. After the obligations imposed by the provisions of paragraph 9 hereof have been satisfied, the survivor of us may alter, amend, or revoke this Will in whole or in part, by Codicil or otherwise. Notwithstanding the foregoing, in the event of our divorce or legal separation, then upon said court decree of divorce or separate maintenance becoming final, this Will and all of the provisions hereof (including the contractual provisions) shall be revoked and all of the provisions hereof shall be of no further force and/or effect.”
Certain provisions of the will will be repeated where appropriate for explanation and emphasis.
The first issue on appeal is whether the contractual provisions of the joint and mutual will apply to property acquired by Jean Jud after the death of John Jud.
The Jud will meets all the requirements of a joint, mutual and contractual will and expressly states in the introductory paragraph that it is contractual. In addition the parties concede the will is contractual; therefore, the contractual character of the will is not in issue in this case.
Though it is not a part of the record, we were informed at oral argument that this issue was prompted by the potential recovery of a judgment in a wrongful death action brought by Mrs. Jud in Johnson County growing out of the death of John Jud.
Appellants contend the will reveals an intent to include in its provisions all of the property owned by each testator at the time of his or her death. Under this view, any property owned by Mrs. Jud at the time of John Jud’s death and acquired by her prior to her death would be so included and thus subject to the consumption, gift and sale limitations of the will.
Appellee contends the corpus of the estate to which the will applies is determined at the death of the first testator to include only the property of the deceased and the property owned by the survivor on that date. She argues any property acquired by the survivor thereafter is not subject to the contractual will. The parties refer to such property as “after-acquired” property. The question then is whether the Jud contractual will applies to property acquired by the survivor after the death of the first testator.
While we have not yet considered the specific issue before us, the law of joint, mutual, contractual wills has been extensively construed, and from it we derive relevant language. A first tenet to remember in contemplating this dispute is that a will, although jointly executed by two testators, is in legal effect the separate will of each testator and, as an individual will, pertains to each testator’s property at the time of his or her death. See 79 Am. Jur. 2d, Wills § 814. The Kansas Court of Appeals confirmed this principle in In re Estate of Duncan, 7 Kan. App. 2d 196, 638 P.2d 992, rev. denied 231 Kan. 800 (1982), stating in Syl. ¶ 2:
“A joint will is, in effect, the separate will of each testator and speaks only as to the testator’s property as of the time of his or her death.”
We must also consider the nature and effect of the testators’ contract on the disposition of their property. The contract is effective from the date of execution while the wills are effective from the date of death of each testator. This means that once the will is executed by both parties it becomes a binding contract incapable of unilateral revocation and, after the death of one of the parties, it is irrevocable. See Menke v. Duwe et al., 117 Kan. 207, 230 Pac. 1065 (1924).
In addition to the application of these basic concepts, we are guided by specific statutory authority on this matter. K.S.A. 59-613 pertains to after-acquired property and provides:
“All property acquired by the testator after making his or her will shall pass thereby in like manner as if possessed by him or her at the time when the testator made his or her will, unless a different intention appears from the will.”
Thus, a joint, mutual and contractual will speaks to the property of each testator at the time of his or her respective death and includes all after-acquired property of the survivor unless a different intention appears from the will.
We can now apply this rule to the will in question. The first six paragraphs are merely specific bequests of the testators’ personal property and are not in controversy. Paragraph 7 provides the survivor shall receive the residue of decedent’s property for life with a limited power of consumption, gift or sale for necessities. The concluding sentence provides:
“The restrictions hereby imposed shall be applicable to all of our property (except that bequeathed by paragraphs 2 through 6 of this Will) whether owned by either or both of us.” (Emphasis added.)
Paragraph 8 bequeaths and devises the “residue of our property and estate,” one-fourth to each of John Jud’s daughters and one-fourth to each of Jean Jud’s children.
Paragraph 11 states the testators’ purpose in making the will. They proclaim it a common plan and that the reciprocal and other gifts are in fulfillment of that purpose and in consideration of each waiving his or her right “to alter, amend, or revoke this Will in whole or in part, by Codicil or otherwise” after the death of the first to die except in case of remarriage.
The Juds’ intent, in executing such a “common plan,” was obviously to provide first for the survivor of the Juds during his or her lifetime, and after the death of the survivor, to provide equally for John’s two daughters and Jean’s son and daughter by their previous marriages. There is no language in the will evidencing an intention that after-acquired property should not be included in the will. Rather, the waiver of the right to revoke is a clear statement that this will is to apply to the survivor’s property at the survivor’s death. In fact, the exclusion of after-acquired property from the will would result in an inequitable distribution to John’s daughters which would violate the Juds’ “common plan.”
In Wimp v. Collett, 414 S.W.2d 65, 76 (Mo. 1967), a similar situation existed. There Dr. Grim and his wife contracted to will their property, after their lives, one-half to his collateral heirs and one-half to her collateral heirs. Mrs. Grim survived. After her death, her heirs sought to exclude some after-acquired entirety property from the terms of the will. In ruling against them the court stated:
“Reference to the will previously set out both in full and in part shows that the Grims did intend to include their after-acquired entirety properties in their contract and joint will. In paragraph Second they provided that ‘. . . all of our property . . . of which we may be possessed at the time of the decease of either of us, shall be held by the survivor’ for life; the right to use the same for life ‘shall not be construed ... to mean that the survivor shall have the right to sell any of the real estate owned by either of us at the date of death.’ Item Third disposes of ‘all ... of our property . . . wherever situate and existing at the . . . death of the survivor,’ half to Dr. Grim’s heirs and half to Mrs. Grim’s heirs. Even though the evidence shows that at the execution of the will all real estate was then owned by Dr. Grim, yet the joint will covers ‘our’ property as it may exist at the death of either. ‘Our’ would have no meaning if all properties owned by both were not included. Similarly, reference to all property existing at the death of the survivor would be meaningless unless it included after-acquired property regardless of how acquired.”
By the same token the Jud common plan to treat the two families equally would have no meaning if Mrs. Jud’s property were not included.
We conclude the Juds’ joint, mutual and contractual will contains an express provision that all property of both testators, including the after-acquired property of the survivor, is subject to the contractual terms of the will. The only relief from these contractual obligations is in the case of remarriage by the survivor where after-acquired property, to the date of remarriage, must be shared with the deceased’s children. We reverse the trial court decision on this issue.
Appellants next argue the trial court erred in holding the joint, mutual and contractual will of the Juds did not sever the joint tenancies under which ownership the Juds held much of their property.
In light of our holding on the foregoing issue and since Mrs. Jud amended the inventory and appraisal of the estate to include all of the joint tenancy property as probate property and thus submitted it to the terms of the contractual will, this issue is moot.
This court will not decide questions when its decision would not be applicable to an actual controversy and where the judgment itself would be unavailing. State ex rel. Stephan v. Pepsi-Cola Gen'l Bottlers, Inc., 232 Kan. 843, 844, 659 P.2d 213 (1983). It is the duty of this court to decide actual controversies by a judgment which can be carried out and not to give opinions on moot questions or abstract propositions, or to declare principles which cannot affect the matter in issue before the^ourti City of Roeland Park v. Cross, 229 Kan. 269, 270, 623 P.2d 1332 (1981).
Any judgment of this court on the issue of whether or not the joint tenancy was severed by the contractual will would be of no consequence. Mrs. Jud, by placing the “joint tenancy” property in the probate estate, has agreed the property is subject to the terms and restrictions of the joint, mutual and contractual will. No actual controversy remains. This issue is without merit.
Appellants next challenge the trial court’s refusal to require Mrs. Jud to post a surety bond or file periodic accountings for the protection of the other heirs.
The trial court ruled Mrs. Jud’s interest cannot be termed that of a “life tenant.” We find this holding to be incorrect. Mrs. Jud holds a life estate subject to her future remarriage with a limited power of consumption and disposition. Accordingly, our previous rulings relating to the duties of a life tenant to the remaindermen are applicable here.
In In re Estate of Miller, 225 Kan. 655, 658-59, 594 P.2d 167 (1979), we held a life tenant, with power to sell or dispose of property devised to him for life with remainder to designated persons, is a trustee or quasi trustee and occupies a fiduciary relation to the remaindermen. Thus, the life tenant owes the remaindermen the highest duty to act honorably and in good faith. We hold Jean Jud holds a trust relationship to the four beneficiaries of the residue of the estate under the joint will.
Appellants argüe Mrs. Jud, as a “trustee” of the residue of the estate, should be required to file periodic accountings of her administration of the trust or post a bond to protect the remaindermen. They justify this position with the argument that since the bulk of the Juds’ estate is composed of cash and personal property, a requirement that Mrs. Jud post bond would be in line with previous decisions of this court. Blakely v. Blakely, 115 Kan. 644, 224 Pac. 65 (1924); Diller v. Kilgore, 135 Kan. 200, 9 P.2d 643 (1932). Additionally, appellants point out there is specific statutory authority allowing the court to require the filing of a bond to protect the remaindermen’s interest. K.S.A. 59-1506.
We have held, however, a life tenant who has the power to dispose of or consume the corpus will not be required to give security or furnish an accounting for the protection of the remaindermen in the absence of a showing of danger of loss or waste. In re Estate of Lehner, 219 Kan. 100, 107, 547 P.2d 365 (1976); In re Estate of Burling, 179 Kan. 687, 693, 298 P.2d 290 (1956).
The court in Lehner reasoned that when such broad power is given to the life tenant by the will, it would be inconsistent with the intent of the testator and overly burdensome upon the life tenant to require an annual accounting. In re Estate of Lehner, 219 Kan. at 107. The same principle applies here.
Appellants make no claim of bad faith or waste but instead argue Mrs. Jud has no power to dispose of or consume the corpus of the estate.
While it is true Mrs. Jud does not have an unlimited power to dispose of or consume the corpus of the estate, she does have a limited power to consume that “necessary to maintain for the survivor the standard of living to which [she] was accustomed during our lifetime.” This gives her the power to invade the corpus of the estate under the stated conditions.
Therefore, we hold our decision in Lehner applicable to the present case. This is particularly true since there is no claim of bad faith on the part of Mrs. Jud. In fact, as the trial court noted, Mrs. Jud provided a detailed standard of living statement and is willing to voluntarily provide an annual accounting to the appellants. Appellants have available to them all of the remedies available to remaindermen after a life estate in the case of the commission of waste. In the absence of an express provision in the will requiring a bond and an accounting, the survivor is not required to furnish a bond and an accounting absent a showing of bad faith or waste. This issue is without merit.
Appellants next allege the trial court erred in not allowing reimbursement from the decedent’s estate for their legal expenses and costs.
Appellants have requested reimbursement of their attorney fees and costs pursuant to K.S.A. 59-1504, which provides in pertinent part:
“Any heir at law or beneficiary under a will who, in good faith and for good cause, successfully prosecutes or defends any other action for the benefit of the ultimate recipients of the estate may be allowed his or her necessary expenses, in the discretion of the court, including a reasonable attorney’s fee.”
This court’s decision in Jennings v. Murdock, 220 Kan. 182, 215, 553 P.2d 846 (1976), outlines the general rule to be applied in regard to allowance of attorney fees:
“ ‘In a meritorious action brought to construe a will, attorney fees are allowable under the provisions of K.S.A. 59-1504 as costs of litigation where the services of the attorney have been beneficial to the estate or are necessary for proper consideration of the will.’ ” (Quoting In re Estate of Murdock, 213 Kan. 837, Syl. ¶ 8, 519 P.2d 108 [1974].)
Therefore, in order for appellants to be awarded attorney fees, the attorney’s services must have been either beneficial to the estate or necessary for a proper consideration of the will.
Appellants argue that the services of their counsel resulted in the inclusion in the estate of assets totalling $277,972.17 which had not been previously included. Had appellants not obtained counsel and filed written defenses to the Petition for Final Settlement, they contend the estate of the decedent would have been seriously understated and the interests of the ultimate recipients of the decedent’s estate would not have been protected.
The thrust of this argument centers around the label under which the joint tenancy property was originally listed. Mrs. Jud originally inventoried the joint tenancy assets as non-probate assets under the heading “Joint Tenancy Property.” However, after the decedent’s daughters filed their written defenses, Mrs. Jud amended her original “Inventory and Valuation” and her final accounting to include the “joint tenancy” assets.
Appellee argues that she always intended to include the joint tenancy property within the consumption restrictions imposed on her by the will and that she filed the amended account merely as a response to appellants’ written defenses. Additionally, ap pellee argues that the attorney’s services did not benefit the estate since no new assets were discovered.
The appellants, by contesting the final settlement of this estate and requesting a construction of the will, have made an important contribution to the estate. Through the appellants’ actions, the value of the probate estate increased by some $278,000, Mrs. Jud agreed to provide appellants with a cost of living statement and an annual accounting, and a construction of the will was obtained entitling appellants to an interest in the after-acquired property of Jean Jud. We find appellants’ actions to be in good faith and for good cause and to have rendered a material benefit to the ultimate recipients of the estate. Appellants therefore should be allowed reimbursement for their expenses including reasonable attorney fees.
The judgment of the trial court is affirmed in part and reversed in part and remanded with instructions to determine and allow reasonable attorney fees for appellants’ attorney. | [
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|
The opinion of the court was delivered by
McFarland, J.:
Plaintiffs Garvey Elevators, Inc., The Coleman Company, Inc., and Wichita Union Stockyards Company seek to enjoin the defendant City of Wichita from levying and collecting special assessments for a storm water drainage project situated in north-central Wichita. The district court entered summary judgment in favor of defendant City and plaintiffs appeal therefrom.
Originally five owners of land in the benefit district each brought separate injunction actions. These five cases were consolidated in the district court. For reasons unimportant to this decision, two of the cases are not before us. The complex facts involved in this consolidated appeal are not in dispute and were well summarized by the district court as follows:
“Prior to 1965 there was in the northeast part of the City of Wichita an area of low income housing consisting of some 140 contiguous acres. This area was purchased by the Urban Renewal Agency of Wichita, Kansas, Metropolitan Area (42 USCS, Ch. 8A; Slum Clearance, Urban Renewal and Farm Housing) and cleared of all housing, leaving the tract surrounded by industrial development and open land. This tract will be hereinafter referred to as the U.R. (Urban Renewal) tract.
“By 1965 the U.R. tract was located in the approximate south center of an area called the North Wichita Industrial Park. The entire area, including the U.R. tract, contained 1600 acres. Measured east to west, the park was approximately 1 % miles wide on the north end and % of a mile wide on the south end. Measured from north to south, the park was two miles long. The southern border was 21st Street North, while the northern boundary followed roughly along an uneven line flexing between 39th and 40th Streets North. Broadway Street was the western border; Grove and the east branch of Chisholm Creek was the eastern border of the Industrial Park. For the purpose of this opinion this tract shall be called the Park. All of the Park could not be developed commercially because a part of it that included all of the U.R. tract was subjected to flooding each time a heavy rain occurred in the area.
“In April of 1965, the Urban Renewal Agency paid for a study done by professional engineers in an effort to define the drainage problems peculiar to the Park.
“A look at the maps furnished by the parties as exhibits shows that this drainage problem was due to the natural lay of the land upon which the Park was located. There is a drop of 30 feet in elevation from the north of the Park to its southern border. Runoff water from rain comes generally from the northeast to the southwest on the northern part of the Park, then straight south or southeast from north on the southern part of the Park. In addition to the runoff water collected from rainfall within the Park itself, the land to the north and northeast of the Park drains into parts of the Park. The land immediately to the east of the Park drains — by and large — straight south or southwest from straight north or northeast. Rain water runoff from the land east of the Park collects in a natural channel called the east fork of Chisholm Creek. This same creek, as it works southwest, forms the southeast border of the Park. Chisholm Creek, from whence the east fork is named, is located west of the Park. It flows southeast and is joined by the east fork at approximately one city block south of the Park. By and large, the northeast corner of the Park itself drains straight south toward the east fork. In 1965 the east fork carried away the rain water runoff from the northeast corner of the Park.
“The engineers working on the drainage problem for the Park knew that the Kansas Highway Commission (now called the Kansas State Department of Transportation) had plans to construct a four lane, divided, controlled access highway across the Park in a north to south direction. This highway would be a part of 1-135, commonly called the ‘canal route.’ Although the record is not specific on the point, I will find that as a part of the highway plans available to them, the engineers working on the drainage problem would find that the State Highway Commission intended to take earth for fill on the roadway from land located within the eastern part of the Park. This taking of earth would create an excavation in such a place that rain water runoff from the northeast part of the Park would be collected north of the east fork of Chisholm Creek.
“1966 was the year that the City of Wichita authorized payment to private engineers for the preparation of a detailed drainage plan that would fit the needs of the Park. The plan made by the engineers was accepted by the City during 1968.
“The problem could be solved, the engineers reasoned, by a two-step plan. The first step would be the construction of water collection apparatus along the center line of the western half of the Park. These collectors would then drain to the south into Chisholm Creek, which in turn connected with a canal that runs the length of the ‘canal route’ acrosS'the City of Wichita and finally empties into the Arkansas River at 35th Street South between Hydraulic and Hillside. The second step of the solution called for a ‘northeast diversion.’ The purpose of this step would be to divert rain water runoff coming from within and without the northeast part of the Park away from the remainder of the Park. The first step has come to be known as Main Storm Water Drain No. 14. For purposes of this opinion, it shall be called the ‘center drain.’ Step two has become known as Main Storm Water Drain No. 50. It shall be called the ‘northeast diversion’ in this opinion. The private engineers recommended to the City that both steps be done at once with cost spread over the study area.
“The drainage problem could be solved. The plans were drawn. The record indicates that the next problem to be faced by the City was financial. How could the project be paid for? Some Federal money was available through certain grants. Federal regulations regarding the U.R. tract prohibited the levying of special assessments against that tract.
“The City decided to do the center drain first. The cost would be $3,331,523.63. A resolution to begin construction was passed on March 9, 1971. Two phases of work would be required for the center drain. Phase I would have two parts, Phase II but one part. Here is the cost and the method of financing:
1. Phase I
Federal grant - Model Cities : 465,781.11
Federal grant - Economic Development Administration 1,515,843.41
Benefit District by Special Assessment 1,096,964.80
2. Phase II Urban Renewal Agency 252,934.31
“The main rain water collector for this center drain was to be a large ditch running through the center of the U.R. tract — north to south. The U.R. tract was reduced from 145 acres to 108.14 developable acres. In addition, the entire cost of Phase II — the construction of the main collector on the U.R. tract — was to be paid for by Urban Renewal.
“The special assessment was on 820 acres (33,472,638 square feet). It was done by City Ordinance No. 34-669 in pursuance of K.S.A. 12-6a01, et seq. on September 14, 1976. This ordinance created a benefit district within the Park. There were 1723 pieces of property within the district. Although the U.R. tract was located in the center of the district, it was not a part thereof due to the federal law prohibiting assessments thereon. The benefit district would pay that part of the cost of Phase I not covered by federal money.
“. . . The northeast diversion was approved for construction on April 19, 1983. It will be paid for by the City at large. The cost is not known.
“As of April, 1983, the barrow pit that catches water from rain runoff from the northeast part of the Park will, on occasion, overflow, sending the excess water into the center drain.
“The special assessments dictated in the ordinance were made against real property located within the benefit district. The assessments were based upon land value, without regard to improvements, as shown by the Sedgwick County Assessor’s roll as of June 1, 1972. Land not on the Assessor’s roll as of June 1, 1972 was assessed based on the average square foot value of all lands on said assessment roll.
“Within 30 days of the 1976 special assessment, a number of landowners sued, praying for an order of the court enjoining the City from collecting on the special assessment levied by the ordinance of 1976, among other things. Discovery was done and motions for summary judgment were filed.
“The Court, Honorable Ron Rogg, declared the ordinance invalid and ‘permanently restrained and enjoined’ the City ‘from any further acts with respect to said assessment ordinance’ (C-38037; C-38014; C-38054). The basis of the ruling was that the assessment scheme used did not result in an imposition of substantially equal burdens upon properties affected. This was all done on October5, 1979. The cases were then dismissed with an order that all discovery done therein could be used in any subsequent cases such as those now at bar.
“February 24, 1981 is the day that the City adopted a new ordinance, No. 37-041, assessing part of the cost for the center drain to landowners in the benefit district. The assessment was done on a uniform square foot basis. This time $1,096,964.80 was the total assessment on 1,361 pieces of property. The per square foot assessment is .032772. There are 33,472,638 square feet in the district. The benefit district is the same. The U.R. land is not included therein.
“Plaintiff Garvey Elevators, Inc., is a Kansas Corporation. It owns one piece of property in the district. The square footage is 1,293,660; the assessment was $42,395.00.
“Plaintiff Coleman Company, Inc., a corporation, owns 24 properties in the district, covering 2,845,815 square feet. The assessment was $93,263.02.
“Plaintiff Wichita Union Stockyards, a Division of Sierra Petroleum Company, Inc., a corporation, owns two properties within the benefit district. The properties cover 1,179,125 square feet; the special assessment for the center drain was $38,642.27.
“Defendant City of Wichita, Kansas is a municipal corporation. It is a city of the first class (K.S.A. 13-101).”
Since the time the summary judgments were entered herein (December 4, 1984), the northeast diversion has been completed with the city at large paying the entire cost thereof.
The first issue is whether it was proper to finance a part of the cost of the center drain project through special assessments.
The plaintiffs note that the defendant City, in making applications to the federal government for construction grant monies, represented that the project was primarily for the benefit of the city at large — particularly the encouragement of new investment and the creation of more jobs for disadvantaged persons in the inner city. The plaintiffs argue that this was either: (1) an admission by the City that the project would benefit only the city at large; or (2) evidence that the City defrauded the federal government by securing federal funds based upon misrepresentations. Plaintiffs also note the engineering reports to the effect that benefit to the property in the benefit district would not support charging the entire cost of the project to the benefit district.
This argument appears to ignore the facts herein. The benefit district is assessed only approximately one-third of the cost of the center drain project — with the balance paid through federal funds. The City applied for and received these funds based on benefits to the city at large. These facts are wholly consistent with the representation the project was primarily for the benefit of the city at large. The engineering studies indicate property in the benefit district would be benefited — but not to the extent of taxing the entire cost of the project to the property therein. It should be noted this issue does not involve the benefit-to-burden ratio on any particular property within the benefit district— rather, whether it was proper to create a benefit district to pay part of the project cost.
We conclude this issue is without merit.
For their second issue plaintiffs contend defendant City violated K.S.A. 12-6a04 in establishing the benefit district.
Plaintiffs direct our attention to the following portion of K.S.A. 12-6a04:
“(1) Before any contract is let or any work is ordered or authorized for an improvement, the governing body shall by resolution direct and order a public hearing on the advisability of the improvement. Notice of the hearing shall be given by not less than two (2) publications in a newspaper. The two publications shall be a week apart and at least three (3) days shall elapse between the last publication and the hearing. Notice shall be given as to:
(a) Time and place of hearing;
(b) general nature of the proposed improvements;
(c) the estimated or probable cost;
(d) extent of the proposed improvement district to be assessed;
(e) the proposed method of assessment; and
(f) proposed apportionment of cost (if any) between the improvement district and the city at large. The hearing may be adjourned from time to time and until the governing body shall have made findings by resolution as to the advisability of the improvement, the nature of the improvement, the estimated cost, the boundaries of the improvement district, the method of assessment and the apportionment of cost (if any) between the district and the city at large, all as finally determined by the governing body . . . .”
The record is clear no notices were given, hearings held, or findings made as to apportionment of cost as required by K.S.A. 12-6a04.
Plaintiffs do not discuss the final provision of K.S.A. 12-6a04(l) which states:
“Provided further, That the governing body may proceed without such notice and hearing, to make findings by resolution as to the advisability of improvements as provided in this section . . . when the proceedings are to improve sanitary and storm water sewers.”
K.S.A. 12-6a01(b) defines “to improve” as meaning, in part, “to construct.” As the storm drain project herein was within the exception to K.S.A. 12-6a04, it was not error for the City to proceed without holding a public hearing or making a finding relative to apportionment of cost. We conclude this issue is without merit.
The third issue is whether the exclusion of the Urban Renewal tract from the benefit district was arbitrary and capricious.
The Kansas statutory assessment scheme allows a municipality to levy special assessments on property “in the area deemed by the governing body to be benefited by such improvement for special benefits conferred upon such property.” K.S.A. 12-6a02. The assessments are levied against property in an improvement district, which is defined as “an area deemed by the governing body to be benefited by an improvement and subject to special assessment for all or a portion of the cost of the improvement.” K.S.A. 12-6a01.
In Giddings v. City of Pittsburg, 197 Kan. 777, 421 P.2d 181 (1966), we stated:
“[W]e are fully aware of the duty which rests upon members of the governing body of a city to act fairly and in good faith when fixing the boundaries of an improvement district under the provisions of 12-6a04, supra. In other words, the members of a city commission may not abuse the discretion with which they are clothed in determining the area which will be benefited by an improvement. On the other hand, it is a general principle of law that courts do not enjoin the action taken by a city government except in a clear case of an abuse of discretion. (Engstrom v. City of Wichita, 121 Kan. 122, 245 Pac. 1033.) In 14 McQuillin, Municipal Corporations, 3rd Ed., § 38.55, p. 171, we find the mle precisely stated:
“ ‘In the establishment ofimprovement districts and levying assessments on property therein benefited, within the restrictions of the applicable law, broad discretion is vested in the municipal authorities, and their determination will not be reviewed in the absence of fraud or arbiti-ary action.’ ” 197 Kan. at 783.
In Whitehead v. City of Fredonia, 235 Kan. 321, Syl., 680 P.2d 286 (1984), we held:
“The power of the courts under JC.S.A. 60-907(a) to grant relief in matters of taxes and assessments imposed by the governing body of a municipality is confined to those situations where the action taken by the governing body is without authority, or permeated with fraud, corruption or conduct so oppressive, arbitrary or capricious as to amount to fraud.”
It is uncontroverted that federal law prohibits Urban Renewal property from being subjected to special assessments such as involved herein. The construction of the central drain was broken into two phases. Phase II consisted of that portion of the central drain project which was physically located on the Urban Renewal tract. Phase I was the balance of the central drain project. Defendant City negotiated an agreement with Urban Renewal officials whereby the entire cost of Phase II ($252,934.31) was paid by Urban Renewal.
We conclude that the plaintiffs have failed to show the defendant City’s exclusion of the Urban Renewal tract entitles them to any relief under the criteria set forth in Whitehead v. City of Fredonia.
The fourth issue is whether the defendant City acted improperly in not computing what the Urban Renewal assessment would have been had it been included in the benefit district and then paying same as a charge against the city at large.
K.S.A. 12-6a07 provides:
“(a) The city may pay such portion of the cost of the improvement as the governing body may determine, but not more than ninety-five percent (95%) of the total cost thereof. The share of the cost to be paid by the city at large shall be paid in the manner provided by K.S.A. 12-6al4.
“(b) If any property deemed benefited shall by reason of any provision of law be exempt from payment of special assessments therefor, such assessment shall, nevertheless, be computed and shall be paid by the city at large.”
Plaintiffs contend K.S.A. 12-6a07 required the City to compute the assessment for the Urban Renewal tract on the same square foot basis as the benefit district and pay same from city-at-large funds. Plaintiffs would limit “city at large” to tax monies collected directly by the City from its taxpayers — eliminating consideration of the federal monies received from Urban Renewal officials. Plaintiffs contend the City was required to take the Urban Renewal monies and federal grant monies off the top of project costs and then apply K.S.A. 12-6a07(b) to the balance remaining for which special assessments are required. We do not agree.
The intent of 12-6a07(b) is that a mandated exemption from special assessment of certain property should not result in the nonexempt benefited properties carrying the cost of the benefits received by the exempt property. This result has not been shown to have occurred under the facts herein.
The City contends (and plaintiffs have not disputed this contention) that had: (1) Urban Renewal not made the $252,934.31 negotiated payment; (2) the cost of Phase II (portion of project on Urban Renewal land) been added to the cost assessed to the benefit district; and (3) all property in the benefit district and the Urban Renewal tract been added together and assessments thereon computed on a square foot basis, then the result would have increased the assessments to the assessed property owners and reduced the amount attributable- to the Urban Renewal property to a figure less than the $252,934.31 already paid by Urban Renewal. In essence, the plaintiffs are seeking benefits received by the Urban Renewal property to be twice subtracted from plaintiffs’ assessments. Such was not the intention of K.S.A. 12-6a07(b). We conclude this issue is without merit.
For their final issue, plaintiffs Garvey and Wichita Union Stockyards contend the defendant City acted arbitrarily, capriciously and unreasonably in excluding property lying east of the benefit district. Plaintiff Coleman agrees with the defendant City that the land was properly excluded.
As will be recalled from the factual statements previously stated herein, the flooding problem in the industrial park area was to be resolved by two engineering projects. The land on the west side was to have its water problems resolved by construction of the center drain project (Storm Water Drain No. 14). This is the project before us for which special assessments were levied. The land on the east side of the industrial park was to have its water problem resolved by construction of the northeast diversion (Main Storm Water Drain No. 50). The center drain project was completed several years before completion of the northeast diversion. During this period of time, some water from the eastern part of the industrial park (not in the central drain benefit district) drained through the center drain improvement. Engineering studies indicate it may do so again, once every hundred years, in a period of exceptional rainfall.
Was the exclusion of land east of the benefit district arbitrary, capricious or unreasonable? It is true the City was slow to complete the northeast diversion and the city at large paid the entire cost thereof (a much less expensive project than the center drain). However, both projects were discussed in the initial engineering reports and contemporaneous construction was recommended.
We have carefully considered the arguments made relative to this issue and conclude these two plaintiffs have failed to carry their burden of proof that the defendant City’s failure to include additional land lying east of the benefit district was arbitrary, capricious or unreasonable.
The judgment is affirmed.
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|
The opinion of the court was delivered by
Miller, J.:
This is an appeal by the plaintiff, Jaymie Lyn Hagedorn, from a jury verdict for the defendants in a medical malpractice action. The parties to this appeal, besides the plaintiff, are Stormont-Vail Regional Medical Center; Dr. Joseph B. Carter, M.D., and Dr. Jimmie A. Gleason, M.D., the attending physicians, and the professional association of which Dr. Gleason is a member, Drs. Tappen, Gleason, Ransdell, VandeGarde, and Robinson, P.A.
Vicky Hagedorn, the mother of Jaymie Lyn Hagedorn, was admitted to Stormont-Vail shortly after noon on December 24, 1980, for the delivery of her baby. She had previously been under the care of a physician who is not a party to this action. Dr. Jimmie A. Gleason, an obstetrician and gynecologist, was on call at the hospital and he became Mrs. Hagedorn’s attending physician. He first met her about 1:00 o’clock that afternoon. Dr. Gleason was assisted by Joseph B. Carter, M.D., a second-year resident who was assigned to him. Both physicians monitored Mrs. Hagedorn’s progress throughout the afternoon, and both were in attendance when Dr. Gleason artificially ruptured her membranes at 6:10 o’clock that evening. An external heart monitor was applied. Dr. Gleason was called to St. Francis Hospital to deliver another patient, and at approximately 8:30 p.m. he called the nurses at Stormont-Vail and was advised that Mrs. Hagedorn was progressing normally. He sent Dr. Carter to Stormont-Vail to be in attendance on Mrs. Hagedorn, and went home, about a ten-minute drive from the hospital. Both Dr. Carter and the nurses were advised to call Dr. Gleason if any problems arose. Dr. Gleason phoned the hospital at 9:30 p.m. and was advised that everything was in order. At 10:05 p.m., one of the nurses in attendance learned from the audible read-outs of the heart monitor that the fetus’s heart rate had dropped. She immediately took corrective action and summoned another nurse for assistance. They administered oxygen, repositioned the patient, applied an internal electrode for fetal heart monitoring, and notified Dr. Carter, who was on the floor. Dr. Carter examined the patient and immediately notified Dr. Gleason, who directed him to prepare the patient for delivery. During the telephone conversation, the decision was made to do a vaginal delivery rather than a Cesarean section. By 10:30 o’clock p.m., the patient was taken to the delivery room. Dr. Gleason arrived at the hospital shortly thereafter, and by 11:00 o’clock p.m., the delivery of Jaymie Lyn Hagedorn was accomplished.
At the time of birth, Jaymie Lyn was very depressed and sluggish. A pediatrician was called and arrived within four minutes after birth. An anesthesiologist was later in attendance. Eventually, the child was taken to the University of Kansas Medical Center for further treatment.
Plaintiff has several serious abnormalities which occurred prior to birth. Her ears are malrotated, she has very widely spaced nipples, and she has a serious heart condition — a constriction of the aorta — which is referred to as coarctation. Additionally, she has upturned earlobes; bent, overlapping toes; and underdeveloped genitals. These abnormalities do not form the basis for plaintiff s claim of damages. Surgery was performed at the Kansas University Medical Center to correct the coarctation.
Plaintiff also suffered brain damage. Concisely stated, it is her claim that the brain damage occurred immediately prior to birth and that it could have and should have been avoided; and that various acts of negligence of the defendants were the direct causes of the brain damage. There is no claim of direct injury by the use of forceps.
The first issue is whether the trial court erred in limiting the plaintiff to the deposition testimony of one of her experts, Dr. Bernard Nathanson. Dr. Nathanson had been retained early on by the appellant to testify as an expert. His deposition, covering some 179 pages, was taken prior to trial. On Sunday evening, after the first full week of the trial, Dr. Nathanson arrived in Topeka. He was picked up at the airport by an associate from plaintiffs law firm. Dr. Nathanson and the attorney went to Stormont-Vail where Dr. Nathanson introduced himself as an ■obstetrician from New York, saying thát he just wanted to look around. He did not identify himself to the hospital staff as an expert witness for the plaintiff in the pending case against the hospital. Similarly, the attorney was not identified. Dr. Nathan-son inspected the labor and delivery areas of the hospital and interrogated nurses about practices and procedures. When trial resumed on the following morning, counsel for the hospital asked the court not to permit Dr. Nathanson to testify in this case. Counsel argued that there is a statutory proceeding for inspection, which could have been followed but was not. He argued further that the doctor’s deposition had been taken but now he had a different basis for his opinion. He had not supplemented the answers in his deposition. Counsel argued that the visit was a glaring impropriety in violation of the code of civil procedure and in violation of the canons of professional ethics, particularly DR 7-104, 235 Kan. cxlviii, which prohibits a lawyer from communicating with a party whom he knows to be represented by a lawyer, without the prior consent of the opposing lawyer. Counsel for the plaintiff indicated that trial counsel did not know of the visit until after it occurred, and counsel offered to instruct the witness not to go into anything that he may have learned during his visit to the hospital.
The trial judge expressed concern for the rights of all of the parties. Dr. Nathanson’s deposition discloses that he testifies regularly as an expert, both in person and by deposition. The judge commented that:
“I’ve had these professional experts before, and I don’t know that I can enter a Motion In Limine that will hold him.”
The judge wanted to avoid a mistrial, since the parties had already spent over a week in court time. At the conclusion of the argument of counsel, and after a short recess, the court ruled as follows:
“THE COURT: . . . All right. Here’s my view. I think that what has been done is improper, highly improper, whether it’s counsels’ fault or even more specifically, Mr. and Mrs. Hagedom’s fault, who are the real parties in interest here. The fact is, there has to be some parameters under which discovery is to be conducted. And my feeling is that for an expert witness to go on the defendant’s premises, interview employees and so forth prior to testifying without then allowing counsel to have the opportunity to make an inquiry, is improper. And the Court has got to be extremely cautious. What I’m willing to do is take that two or three hours, or whatever it takes, and we’ll go over Doctor Nathanson’s deposition, and I’m willing to let him testify by deposition. My concern is that if he — I looked briefly at his deposition. If we were to let him be used as a live witness, I’m afraid that we couldn’t contain what could happen.
“The only thing to do is go to the testimony he’s given before this action that presumably he instigated and I feel that to allow him to testify based upon anything that has not been supplemented by discovery or counsel having reasonable opportunity to inquire could be injecting error in this case, and having already spent six days in trial, I’m not willing to take a risk. If we were at the first day, I would probably bring him in here and tell him what I thought about it, tell him what I’d do to him if he got beyond my boundaries, and take the chance, but I don’t want to have to start this case over. And I’m not sure I can hold him.
“So, as far as I’m concerned, Doctor Nathanson will not be permitted to testify in the trial and I’m ready to roll up my sleeves and go to work on the deposition and I’ll let the plaintiffs put in his testimony by way of deposition.
“. . . I understand it’s going to take some time, but it’s a lot less time than starting over and I don’t relish the fact of going through it either. I think that’s the fairest way. It allows the plaintiffs to get their testimony in, it protects the defendants from anything that may have resulted due to this extracurricular inspection, or whatever you want to call it. So that’s what I’m going to do.”
Thereafter, the attorneys and the court worked with the deposition and it was read into evidence. Plaintiff argues on appeal that it was error for the court to prohibit Dr. Nathanson from testifying live.
The situation arose during the course of the trial, and required the trial court’s immediate decision. That decision dealt with the manner of the presentation or the exclusion of the expert testimony. The issue for our determination is whether or not the trial court abused its discretion when it refused to permit the witness to testify live, but permitted only his deposition testimony to be presented. The standard of review, where abuse of discretion is claimed, was recently discussed in Lone Star Industries, Inc. v. Secretary, Kansas Dept. of Transp., 234 Kan. 121, 131, 671 P.2d 511 (1983), where 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).”
Plaintiff presents several arguments as to why the trial court’s decision was error. She first contends that the court’s decision amounted to a sanction under K.S.A. 60-237, and she argues that that statute has no application where the discovery was done wholly outside of the discovery rules. She contends that since there was no court order specifically prohibiting Dr. Nathanson from visiting the hospital, K.S.A. 60-237 sanctions are not applicable. The trial court, however, did not base its decision on K.S.A. 60-237. That statute provides sanctions for failure to make discovery or for failure to comply with a discovery order of the trial court. The statute does not cover the situation which arose in this proceeding. Inspection of the hospital premises could have been requested under K.S.A. 60-234, with notice to the opposing party. That statute was not followed. The trial court’s action, although not authorized by 60-237, was not a violation of that section. We do not view the trial court’s .action as a sanction pursuant to that section, but as a thoughtful compromise between the two competing interests. Plaintiff wished to present the testimony of Dr. Nathanson; defendants had taken Dr. Nathanson’s deposition and were prepared to cross-examine him but they were not prepared to examine him after his “extracurricular” visit to the hospital and his interview with the nurses, events about which the defendants had no notice.
Plaintiff points out that one of defendants’ grounds for their objection was the failure to comply with K.S.A. 60-226, which provides for the supplementation of responses to discovery. Plaintiff argued at trial and argues here that the doctor’s opinions did not change after his visit to the hospital and thus there was no evidence that any of the responses given by him in the prior deposition are incorrect or no longer true. The difficulty with this is that his opinions as expressed in the deposition were based on medical records and depositions; after his visit to the hospital, this was no longer true. His observations at the hospital either fortified his previous opinions or caused them to change. As we observed in Barnes v. St. Francis Hospital & School of Nursing, 211 Kan. 315, Syl. ¶ 7, 507 P.2d 288 (1973):
“The taking of pretrial depositions is part of the discovery process authorized by K.S.A. 1972 Supp. 60-226, and among the purposes to be served thereby is ascertaining what an adversary witness may know about matters in litigation and what his probable testimony will be, to the end that the element of surprise will be eliminated so far as possible.”
The surprise visit by Dr. Nathanson to the hospital injected new material as the basis for his opinions. Defendants had no knowledge as to what this information might be. The element of surprise was thus injected back into the lawsuit. There was no suggestion made at trial that the responses could have been supplemented or that the trial could have been recessed to allow defendants to take further depositions of the witness. How much delay this would have occasioned during the trial, and whether it would have rectified the situation, we cannot say. The fact remains that the basis for the doctor’s opinions had changed, and there was no supplementation of his deposition.
Plaintiff next argues that the trial court based its ruling in part on K.S.A. 60-445, which authorizes the judge in his or her discretion to exclude admissible evidence if the judge finds that the probative value of the evidence is substantially outweighed by the risk that its admission would unfairly and harmfully surprise a party who has not had reasonable opportunity to anticipate that such evidence would be offered. Plaintiff argues there was no surprise because the doctor’s opinions did not change. However, even if his opinions had not changed, the basis for the opinions had changed, and this would certainly affect the defendant’s cross-examination. All counsel and the trial court were unaware of what might develop during the doctor’s testimony, following his unannounced visit to the hospital. The plaintiff further argues that the surprise factor did not outweigh the prejudice to the defendant. However, the trial court did not exclude the testimony but permitted the plaintiff to offer fully the deposition testimony of the expert, taken prior to his visit to the hospital.
Plaintiff makes several other arguments in this regard, but those arguments were not made to the trial court and we find them unpersuasive. We have considered fully the arguments made and the record before the trial court, and we conclude that the trial judge thoughtfully resolved the problem which arose. Plaintiff was permitted to offer the testimony, and defendants were protected from surprise which arose upon the witness’s unexpected visit to the hospital and his interrogation of the nurses then on duty. Not only was the discovery unauthorized, but the communication between the attorney and the adverse party was in direct violation of the canons of professional ethics, previously cited. We hold that there was no abuse of discretion by the trial court.- We should point out that the plaintiff also had another expert witness, Dr. James E. Nickel, an obstetrician and gynecologist from Helena, Montana, whose expert testimony parallels that of Dr. Nathanson and was presented live during the trial.
Plaintiff next contends that the trial court erred in admitting the testimony of defendant’s expert, Dr. Robert Buehler. Dr. Buehler examined the plaintiff on September 14, 1984, but after some preliminary studies discovered that he needed blood samples from the parents. These were secured and Buehler was then able to complete his analysis. Pretrial conference in this case was held on October 10, 1984, and at that time the trial court entered the following order:
“Concerning defendants’ expert, Dr. Robert Buehler in Omaha, Nebraska, the Court ordered defendants to produce a preliminary or interim report of Dr. Buehler before his deposition and to produce Dr. Buehler for his deposition on October 26, 1984, based upon the assumption that the parties are able to obtain blood samples from the plaintiffs and Dr. Buehler is able to complete his analysis of those blood samples in time for the deposition.”
In accordance with that order, blood samples were taken, Buehler completed his analysis, his report was received by defendants’ counsel on October 24, copy was delivered to plaintiff s counsel, and Dr. Buehler’s deposition was taken on October 26, 1984. Plaintiff s counsel were provided with a copy of Dr. Buehler’s report prior to the time his deposition was taken, all in accordance with the court’s order.
Plaintiff argues that testimony should have been excluded under K.S.A. 60-235(d), which authorizes the court to exclude a physician’s testimony if he fails to deliver a report upon request. Plaintiff in this case sought a report from Dr. Buehler, prior to the pretrial conference, but his analysis was not then complete. It was completed upon receipt of the blood samples, and the report was provided prior to the taking of his deposition as required by the trial court’s order. The plaintiff also argues that she was surprised by the testimony and did not have time to get another geneticist. Plaintiff had consulted a geneticist prior to the taking of the Buehler deposition; counsel had a copy of the Buehler report and presumably had a transcript of his deposition; and there elapsed eleven days between the taking of the Buehler deposition and the presentation of his testimony. Plaintiff could have secured and presented testimony of its own experts there after if plaintiff had wished to do so. Under the circumstances, the trial court did not abuse its discretion in admitting the testimony of the witness.
The third issue plaintiff raises is whether the trial court erred by granting the defendants a directed verdict on the issue of “traumatic mid-forceps delivery.” Plaintiff argues that under the evidence a mid-forceps delivery was more traumatic to a depressed child than delivery by Cesarean section would have been, and that this was a deviation from the standard of care. The trouble is that this was not an issue on which the case was being tried. The many claims of negligence were set out in detail during the pretrial conference, and deviation from the standard of care by mid-forceps or vaginal delivery rather than by Cesarean section was not one of the claims of negligence. The trial court refused to instruct on this non-issue and granted a directed verdict thereon. However, the trial court submitted to the jury plaintiff s claim that the physicians were negligent in failing to perform a timely delivery of the child and in failing to order preparation for and perform a Cesarean section, and that Dr. Gleason was negligent in allowing Dr. Carter to perform the delivery. There was never any claim that any physical injury was caused to the child by use of the forceps. The refusal of the trial court to inject a new issue into the lawsuit during trial was not error.
For her next issue, plaintiff claims that the trial court erred in admitting into evidence instances of specific conduct for the purpose of impeaching plaintiffs expert witness. During the taking of the Nathanson deposition, the following exchange took place:
“Q. [by Harold S. Youngentob, attorney for Stormont-Vail] Haven’t you admitted in the past that based upon need, you would provide false information?
“MR. SEXTON: [attorney for plaintiff] Same objection as before. [We find no prior objection.] That is out of context.
“A. Counselor, I was involved in a political revolution in the late 60’s and during those times it was necessary in effecting this revolution to persuade the populace of the rightness of this political cause, and some questionable means were used. I have never fabricated, however, in any way, shape or form under oath the statements you are about to read from that book of mine, which were not made under oath at any time. They were not testimony. They were merely political instruments.
“Q. From that book I was about to read, you were advocating a position and in order to advocate that position you were willing to provide false information; is that correct?
“MR. SEXTON: I object. The testimony that you are trying to elicit is totally irrelevant to the facts that we have before us here and I don’t think it is a proper question to put before the doctor.
“A. You are getting into the area of the politics of abortion, which I am sure you know is an inflammatory, very difficult and thorny area, and you are also undoubtedly aware that I have changed my mind regarding the subject of abortion and have published two books on the subject. You are also undoubtedly aware I have testified in the United States Senate on two occasions on this issue. I have testified in federal district courts on this issue in Missouri, and I have been consultant to the Portuguese government recently on this issue, so the issue is political. It has not the slightest bit of relevance to this particular case.
“Your question is disingenuous and I see no compulsion on my part to answer it.”
When counsel and the court reviewed the deposition prior to its being read to the jury, plaintiffs counsel objected to the reading of this portion into evidence for the reason that the book was not sworn testimony and the response gets into the question of abortion, a prejudicial subject. Further, toward the conclusion of the argument before the court on the admissibility of this passage, the following exchange took place:
“MR. STRATTON: What he says in 1978 is that in 1973 he sold a bill of goods to people, and he knowingly lied to people, and he can explain it as saying it was in the political context and it wasn’t under oath. I think if a man is a liar, he’s a liar, whether he’s under oath or not, myself.
“MR. SEXTON: And obviously, Judge, our position is that under the Statutes, that’s not a proper method of impeachment.
“THE COURT: It goes to credibility. I will allow it in.”
Plaintiff argues that the testimony should not have been allowed because the defendants were introducing evidence of specific instances of conduct for the purpose of impeaching the doctor’s testimony. K.S.A. 60-420 and K.S.A. 60-422(d) are in point. These read as follows:
“60-420. Evidence generally affecting credibility. Subject to K.S.A. 60-421 and 60-422, for the purpose of impairing or supporting the credibility of a witness, any party including the party calling the witness may examine the witness and introduce extrinsic evidence concerning any conduct by him or her and any other matter relevant upon the issues of credibility.”
“60-422. Further limitations on admissibility of evidence affecting credibility. As affecting the credibility of a witness . . . (d) evidence of specific instances of his or her conduct relevant only as tending to prove a trait of his or her character, shall be inadmissible.”
In State v. Aldrich, 232 Kan. 783, 658 P.2d 1027, cert. denied 462 U.S. 1136 (1983), defense counsel proposed to impeach a witness by inquiring whether she had once sworn to a false affidavit in order to receive welfare benefits. The trial court refused to allow such evidence, and we affirmed, holding that a witness’s character traits for honesty and veracity could only be shown by opinion testimony or evidence of reputation, and not by specific instances of the witness’s conduct.
Assuming that the two questions and the responses were improper, we turn to the ultimate question — whether the admission of that evidence constitutes reversible error. Harmless error is error which does not prejudice the substantial rights of a party. It affords no basis for a reversal of a judgment and must be disregarded. See City of Ottawa v. Heathman, 236 Kan. 417, 426, 690 P.2d 1375 (1984), and cases cited therein. Considering the wealth of evidence that was presented in this case, we hold that this testimony was relatively insignificant and did not substantially prejudice the plaintiff. Under the circumstances we hold that it was harmless error.
Next, plaintiff complains that the trial court improperly admitted expert testimony without proper foundation. The first occurred during the cross-examination of Dr. Theodore E. Young, a pediatrician called as an expert witness on behalf of the plaintiff. Dr. Young had previously stated that he could not predict how long the plaintiff would live, based upon a reasonable degree of medical certainty. He was asked this question and responded as follows:
“Q. . . . Based on the facts you know about Jaymie’s condition and based upon your experience as a pediatrician and your experience in caring for Jaymie, do you have a best estimate opinion as to the number of years Jaymie might be expected to live?
“A. Phrased in that way, not saying reasonable degree of medical certainty, I would estimate it would be unlikely that she would live past 20 to 30 years and she might live a much shorter period than that.”
Dr. Young, a pediatrician of some thirty-eight years’ experience, had been plaintiff s pediatrician for about four years. He was aware of her extensive problems. Prior to the exchange targeted above he testified, without objection, that he did not think that she would live a normal life span. The evidence, of course, went only to the issue of damages and not to liability. Since the jury determined that there was no liability, there was no need to address the issue of damages. Under the circumstances — considering the witness’s experience, his close contact with plaintiff over a four-year period, and his candid response that he could not give a view based upon a reasonable medical certainty but could only express his professional opinion- — we conclude that the trial court did not err in permitting this cross-examination.
The final specification of error in the admission of medical testimony arose during the cross-examination of Dr. Kenneth K. Goertz, a pediatric cardiologist called as an expert witness on behalf of the plaintiff. During his cross-examination, a question was asked and an objection was interposed that the question was not in proper form and was argumentative. Counsel rephrased the question and it was then answered without objection. On appeal, plaintiff s counsel argues that the question was objectionable because it asked the witness to assume facts not in evidence, and it did not require the witness to base his answer on a reasonable degree of medical certainty. Neither of these objections were made at trial. Further, since there was no objection to the rephrased question, appellate consideration of this claim of error is precluded. K.S.A. 60-404; and see Douglas v. Lombardino, 236 Kan. 471, 482, 693 P.2d 1138 (1985). We conclude that there was no error in the cross-examination of these medical experts.
Finally, plaintiff argues that the trial court erred in denying her motion in limine concerning evidence of marijuana usage by her mother. During proceedings prior to trial plaintiff, by a motion in limine, sought to prohibit the defendants from introducing evidence that her mother, Vicky Hagedorn, had smoked marijuana on several occasions during the latter part of her pregnancy. Dr. Buehler, one of defendant’s experts, had testified during the taking of his deposition that marijuana can affect fetal weight and fetal size; that fetal size includes head circumference, and therefore brain involvement. He considered this not to be the most likely cause of her brain damage but possibly a contributing factor. After hearing arguments from all counsel, the trial court denied the motion in limine and stated that marijuana usage might be relevant depending on the foundation laid for it during the presentation of expert testimony. At trial, the only mention that was made of Vicky Hagedorn’s use of marijuana was made by plaintiffs counsel in the opening statement. Defendants made no reference to it.
The standard to be applied in reviewing the trial court’s ruling on a motion in limine is whether the trial court abused its discretion. U.S.D. No. 464 v. Porter, 234 Kan. 690, 694, 676 P.2d 84 (1984).
Here, there was some evidence in the deposition of Dr. Ruehler indicating that the evidence could be material. At the time the ruling was made, the trial judge was careful to state that while he was overruling the motion in limine at that stage of the proceedings, the evidence would only be allowed in if proper foundation was laid at trial or if appellant brought it out first. Under the circumstances, the trial court did not abuse its discretion in ruling on the motion in limine, and we find no error.
The judgment is affirmed. | [
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The opinion of the court was delivered by
PIerd, J.:
The State appeals from the district court’s grant of defendant’s motion for dismissal and discharge prior to the presentation of evidence at the preliminary hearing.
Appellee Steven Cole, an inmate in the Sedgwick County Jail, was charged with possession of a weapon without authorization or consent of the jailer in violation of K.S.A. 21-3826. A preliminary hearing was scheduled for January 7, 1985. Prior to the presentation of evidence, Cole moved to dismiss on the ground his acts, as alleged by the State in its complaint/information, did not constitute a crime as defined by K.S.A. 21-3826.
Specifically, Cole argued the provision in K.S.A. 21-3826 which pi'ohibits the unauthorized possession or distribution of contraband in a penal institution is not applicable to the possession of a weapon in a county jail.
The district court determined the statute was “poorly worded” and, if strictly construed, precluded imposition of charges against the defendant. The State appeals the district court’s dismissal of the charges against the defendant.
The sole issue to be considered on appeal is whether the district court erred in finding K.S.A. 21-3826 does not prohibit the unauthorized possession of a weapon by a prisoner in a county jail.
Let us examine K.S.A. 21-3826, which provides:
“Traffic in contraband in a penal institution is introducing or attempting to introduce into or upon the grounds of any institution under the supervision and control of the director of penal institutions or any jail, or taking, sending, attempting to take or attempting to send therefrom or any unauthorized possession while in aforesaid institution or distributing within any aforesaid institution, any narcotic, synthetic narcotic, drug, stimulant, sleeping pill, barbiturate, nasal inhaler, alcoholic liquor, intoxicating beverage, firearm, ammunition, gun powder, weapon, hypodermic needle, hypodermic syringe, currency, coin, communication, or writing without the consent of the warden, superintendent or jailer.
“Traffic in contraband in a penal institution is a class E felony.” (Emphasis added.)
Appellee argues, and the trial court held, the act fails to include “jails” in that portion of the statute referring to unauthorized possession of contraband. He argues the act prohibits only unauthorized possession of contraband in the “aforesaid institution.” Since the statute previously refers to “any institution under the supervision and control of the director of penal institutions or any jail,” (emphasis added) Cole argues the term “aforesaid institution” refers only to institutions under the control of the director of penal institutions.
Before considering the arguments of the parties, let us review the rules of statutory construction.
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. State v. Du bish, 236 Kan. 848, 853, 696 P.2d 969 (1985); State v. Flummerfelt, 235 Kan. 609, 612, 684 P.2d 363 (1984).
Penal statutes must be strictly construed in favor of persons sought to be subjected to their operations. The rule of strict construction simply means that ordinary words are to be given their ordinary meaning. Such a statute should not be read to add that which is not readily found therein or to read out what as a matter of ordinary English language is in it. State v. Zimmerman & Schmidt, 233 Kan. 151, 155, 660 P.2d 960 (1983); National Cooperative Refinery Ass’n v. Board of McPherson County Commr's, 228 Kan. 595, 597, 618 P.2d 1176 (1980).
The State contends that we need not interpret K.S.A. 21-3826 because our holding in State v. Roseberry, 222 Kan. 715, 567 P.2d 883 (1977), is dispositive of the issue in this case.
In Roseberry, the defendant was charged under K.S.A.'21-3826 with feloniously introducing marijuana into a county jail without the consent of the jailer. The defendant successfully argued in the trial court that the use of the term “penal institutions” in the title of the act was not broad enough to cover the subject matter of the statute which includes both “penal institutions” and “jails.” Defendant contended that the statute violated Article 2, Section 16 of the Kansas Constitution, which mandates that no bill shall contain more than one subject and the subject of the bill should be expressed in the title. We held that when the two words “penal institutions” are used without further qualification, they refer to penal institutions under the supervision of both state and local authorities. Accordingly, we held:
“The title or enacting clause of House Bill No. 1853, Laws of 1970, Chapter 127 (K.S.A. 21-3826) is sufficiently broad to cover both state penal institutions and local penal institutions (jails)* and is not violative of Article 2, Section 16, of the Constitution of the State of Kansas.” 222 Kan. at 717.
While it is true the court in Roseberry was concerned with the constitutionality of K.S.A. 21-3826 and was not asked to decide which parts of the act pertain to state penal institutions and which apply to jails, the reasoning of the court in Roseberry is instructive:
“The general term ‘penal institution’ is not a term of art. It is general both in nature and meaning. ‘Penal’ is commonly understood as referring to that which inflicts punishment. ‘Institution is commonly used in referring to an establishment of a public nature and extends to buildings in use for the purpose of such institution. (Webster’s Third New International Dictionary Unabridged.) State penal institutions are generally under the control and supervision of the State Director of Penal Institutions. Local penal institutions, commonly referred to as jails, are generally under the control and supervision of a county or city officer referred to as a jailer. When the two words ‘pemd institutions’ are used without further qualification they refer to penal institutions under the supervision of both state and local authorities.” 222 Kan. at 717. (Emphasis added.)
The word “institution,” if given its ordinary meaning (as required by the rules of statutory construction), is broad enough to encompass county jails. Therefore, the prohibition in K.S.A. 21-3826 against “any unauthorized possession while in aforesaid-institution” prohibits possession of contraband both in state institutions under the control of the director of penal institutions and in jails. Also, appellee’s argument ignores the fact that the phrase in K.S.A. 21-3826 “traffic in contraband in a penal institution” is defined therein as “introducing or attempting to introduce into or upon the grounds of any institution under the supervision and control of the director of penal institutions or any jail . . . .” Thus, the clear language of the statute makes a jail a penal institution under this act. Therefore, where the act refers back to “aforesaid institution” with reference to possession of contraband, it is referring to jails as well as other institutions.
Considering the plain language of K.S.A. 21-3826 in light of our holding in Roseberry that the term “penal institutions” includes county jails, there can be no question unauthorized possession of contraband is prohibited in county jails.
Finally, the last phrase of K.S.A. 21-3826 requires our consideration since it is applicable to the entire portion of the statute preceding it. The statute provides that the introduction of contraband or the unauthorized possession or distribution of contraband constitutes “traffic in contraband” and is a felony if accomplished “without the consent of the warden, superintendent or jailer.” (Emphasis added.) The inclusion of the term “jailer” is significant since it relates back to the phrase “unauthorized possession while in aforesaid institution.” If unauthorized possession was not prohibited in the county jail, the consent of the jailer would be of no consequence.
Appellee argues that had the legislature intended to prohibit the possession of contraband in jails, it could have added the phrase “or any jail” as it did in the preceding clause. Cole suggests the legislature intended possession of contraband to be a crime only in state penal institutions. This argument is without merit since no valid distinction can be made between possession of contraband in a state penal institution and possession of contraband in a jail. In enacting K.S.A. 21-3826, the legislature intended to proscribe the introduction of contraband into penal institutions. This purpose cannot be reconciled with appellee’s argument that the legislature did not intend to prohibit the possession of contraband in local penal institutions.
The judgment of the trial court is reversed and this case remanded for further proceedings consistent with this decision. | [
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This original action in discipline was filed by Arno Windscheffel, disciplinary administrator, against William E. Glenn, Sr., of Topeka, an attorney admitted to practice in the State of Kansas. A panel of the Board for Discipline of Attorneys conducted a hearing upon the allegations of the complaint and on June 28, 1985, filed its report, findings and recommendations with the Clerk of the Appellate Courts. As no exceptions to the report were filed by the respondent, the facts as found by the panel are not in dispute.
In July 1982, respondent was retained by one Keith E. Carl to pursue a claim against the State of Kansas for wrongful imprisonment. In September 1983 the Joint Committee on Special Claims of the Kansas Legislature recommended an award for Mr. Carl be submitted to the 1984 Legislature. While the claim was pending, Mr. Carl desired to purchase an automobile from Malone Motors, Inc., of Parsons. As Mr. Carl was without funds or employment, Malone Motors, Inc., retained respondent to protect its interests and to prepare an assignment of sufficient funds from the anticipated legislative award to pay for the automobile. Respondent prepared the assignment which was executed by Mr. Carl, who then received the desired automobile. Respondent was furnished with an executed copy of the assignment and thereafter an award by the legislature was approved. The award was received by respondent and, after a deduction of fees and expenses, the balance was paid directly to Mr. Carl and respondent failed to remit any funds to Malone Motors, Inc., as required by the assignment. Respondent had billed Malone Motors, Inc., for his services and had been paid, and an attorney-client relationship existed between respondent and Malone Motors, Inc., as well as between respondent and Mr. Carl. Respondent did not personally benefit from the failure to disburse the appropriate funds to his client Malone Motors, Inc.; however, it suffered substantial monetary damage from such failure.
The panel of the Kansas Board for Discipline of Attorneys unanimously concluded:
“1. Respondent engaged in conduct that adversely reflects on his fitness to practice law in violation of DR 1-102(A)(6) [235 Kan. cxxxvii] in that Respondent failed to honor an assignment of funds which he knew, or should have known, had been made by Keith E. Carl to Malone Motors, Inc., and on which assignment Malone Motors, Inc., Respondent’s client, relied.
“2. Respondent clearly believed that Keith E. Carl should not have purchased an automobile from Malone Motors, Inc. Respondent should have declined proffered employment by Malone Motors, Inc. to prepare an assignment, inasmuch as the exercise of his independent professional judgment in behalf of Malone Motors, Inc., was adversely affected, in violation of DR 5-105(A) [235 Kan. cxlvi].
“3. Respondent neglected a legal matter entrusted to him in violation of DR 6-101(A)(3) [235 Kan. cxlvii] in that he failed to disburse funds to Malone Motors, Inc., and its bank, pursuant to the Assignment of Funds prepared by him.
”4. Respondent damaged his client, Malone Motors, Inc., in failing to disburse funds pursuant to the Assignment of Funds prepared by him in violation of DR 7-101(A)(3) [235 Kan. cxlviii].”
The panel recommended that respondent be disciplined by public censure pursuant to Supreme Court Rule 203(a)(3) (235 Kan. cxxiv).
After carefully considering the record herein, a majority of the members of the court approved and adopted the report of the Board for Discipline of Attorneys. A minority of this Court would discipline the respondent by indefinite suspension.
IT IS THEREFORE CONSIDERED, ORDERED, ADJUDGED and DECREED that William E. Glenn, Sr., be and he is hereby disciplined by public censure, the costs of this action are assessed to respondent and this opinion shall be published in the official Kansas Reports. | [
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WHEREAS, on the 27th day of August, 1985, David H. Heilman, an attorney of Council Grove, Kansas, was convicted in the United States District Court for the District of Kansas, of three counts of filing false federal income tax returns in violation of the Internal Revenue Code, 26 U.S.C. § 7206(1) (1982); and
WHEREAS, the respondent has advised this court of his intention to appeal said convictions; and
WHEREAS, on the 25th day of October, 1985, respondent appeared before this court and advised the court that he desired to surrender his license to practice law in the State of Kansas pending the outcome of his appeal;
NOW, THEREFORE, IT IS ORDERED that David H. Heilman be and he is hereby indefinitely suspended from the practice of law in the State of Kansas pending the outcome of his appeal and until the further order of the court.
Effective this 7th day of November, 1985.
BY ORDER OF THE COURT. | [
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Abbott, J.:
This is an appeal in a workers’ compensation case. At issue is the validity of a temporary order, entered after a preliminary hearing held in accordance with K.S.A. 1980 Supp. 44-534a, requiring the Kansas Workmen’s Compensation Fund to pay temporary total disability benefits and medical expenses to the claimant. The dispute is between the employer, MBPXL Corporation (MBPXL), and the Kansas Workmen’s Compensation Fund (Fund). The injured worker is not a party.
Procedurally, the case arose in the following manner: The claimant requested a preliminary hearing pursuant to K.S.A. 1980 Supp. 44-534a. The administrative law judge ordered MBPXL to pay temporary total disability benefits and medical expenses. The subsequent deposition of Dr. Thomas W. Kneidel led MBPXL to believe it had no obligation to the claimant under the Workmen’s Compensation Act, and that either the claimant was entitled to receive compensation from the Fund or he was not entitled to receive compensation from anyone. MBPXL thereupon filed a motion requesting that benefits to the claimant be terminated. That motion was denied by the administrative law judge, but responsibility for the payments was transferred to the Fund.
The Fund requested a director’s review; the Workers’ Compensation Director reversed the administrative law judge and ordered MBPXL to pay the benefits. The director reasoned:
“Although Director’s Rule 51-15-2 provides that a preliminary award may be entered against the Workmen’s Compensation Fund, that rule does not appear to contemplate the type of case presently before the Director. The rule apparently contemplates cases in which there is no employer that can be found and brought before the Administrative Law Judge or an employer who does not have the present ability to pay compensation. It could possibly apply to a case in which it appears without doubt that the disability is clearly attributable to a pre-existing condition. This would be an exceptional case. The respondent may be entitled to some relief from the Workmen’s Compensation Fund, however, in order to arrive at that conclusion, it is generally necessary to present extensive evidence on medical issues in the case. Preliminary awards do not contemplate a complete trial of an issue such as the liability of the Workmen’s Compensation Fund. The statute providing for preliminary awards (K.S.A. 44-534a) provides that the only two issues to be heard on the preliminary hearing are whether the claimant is entitled to temporary total disability and whether he is entitled to be provided medical treatment at the employer’s expense. The law does not specifically state that the Workmen’s Compensation Fund liability is an issue for trial at a preliminary hearing. The Director’s Rule allowing an award against the Workmen’s Compensation Fund following a preliminary hearing should generally come into play when it is necessary because of no solvent employer or in some unusual instance if it is obvious that the Fund is responsible.
“The Director feels that it is questionable to say that the award against the Fund would exceed the authority of the Administrative Law Judge, however, the Director feels that it is better practice not to order payment by the Fund except as set out above.”
MBPXL appealed to the Sedgwick County District Court from the director’s award. The trial judge reversed the director and reinstated the award of the administrative law judge. He held that preliminary orders are not appealable or reviewable by the Workers’ Compensation Director or a district court except in instances where the administrative law judge did not have jurisdiction to enter the preliminary order. This appeal by the Fund followed.
Our Supreme Court has stated that “[t]he Workmen’s Compensation Act is complete and exclusive within itself in establishing procedures covering every phase of the right to compensation and of the procedure for obtaining and enforcing it, including procedures which pertain to appeals . . . .” Kissick v. Salina Manufacturing Co., Inc., 204 Kan. 849, Syl. ¶ 3, 466 P.2d 344 (1970). At issue in this case is K.S.A. 1980 Supp. 44-534a. Thus, we must look to the act itself for guidance.
K.S.A. 1980 Supp. 44-534a provides in pertinent part that:
“(a) .... Upon a preliminary finding that the injury to the employee is compensable and in accordance with the facts presented at such preliminary hearing, the director or administrative law judge may make a preliminary award of medical and temporary total disability compensation to be in effect pending the conclusion of a full hearing on the claim. . . . No such preliminary findings or preliminary awards shall be appealable by any party to the proceedings, and the same shall not be binding in a full hearing on the claim, but shall be subject to a full presentation of the facts.” (Emphasis supplied.)
The director, citing as authority the above statute and his authority to adopt and promulgate such rules and regulations as he shall deem necessary for the purposes of administering and enforcing the provisions of the Workmen’s Compensation Act (K.S.A. 1980 Supp. 44-573), adopted two regulations. The Fund argues that those regulations, K.A.R. 51-15-2 and 1980 Supp. 51-3-5a, go beyond the director’s rule-making authority, that they are contrary to statutory law and are in conflict with other rules made by the director. The pertinent parts of the challenged rules are: “The examiner may award compensation against the workmen’s compensation fund following a preliminary hearing if the fund was properly impleaded and given the statutory notice of the hearing.” K.A.R. 51-15-2. “Where an examiner has entered a preliminary award, no director’s review pursuant to K.S.A. 44-551, shall be entertained except where it is believed the examiner did not have jurisdiction to enter the award.” K.A.R. 1980 Supp. 51-3-5a.
The Fund argues that K.A.R. 1980 Supp. 51-3-5a is in direct conflict with K.S.A. 1980 Supp. 44-551 and its counterpart K.A.R. 51-18-2. That statute and the director’s rule provide that all acts, findings, awards, decisions, rulings or modifications of findings or awards made by an administrative law judge are subject to the director’s review and approval upon written request of any interested party. The Fund contends that if the legislature had intended for a preliminary hearing to be nonreviewable by the director, the legislature would have amended K.S.A. 1980 Supp. 44-551. The Fund also contends the prohibition against appeals of a preliminary award in K.S.A. 1980 Supp. 44-534a applies to appeals to the district court and was not intended by the legislature to prevent reviews by the director. MBPXL counters that the director has authority to adopt and promulgate rules for the purpose of administering and enforcing the Workmen’s Compensation Act; that the Kansas Supreme Court has previously held that the director may “fill the gap” with a rule (Knoble v. National Carriers, Inc., 212 Kan. 331, 510 P.2d 1274 [1973]); and that the catch-all phrase in K.S.A. 1980 Supp. 44-566a(e)(4), which states that the Workmen’s Compensation Fund shall be liable for any other payments or disbursements provided by law, authorizes the award.
Underlying this dispute is the fact the legislature has provided that if a preliminary award has been paid by the employer or the employer’s insurance carrier, and the award is subsequently reduced or disallowed upon a full hearing, the Fund will reimburse the employer and employer’s insurance carrier pursuant to K.S.A. 1980 Supp. 44-534a(b). The legislature did not provide that the Fund would be reimbursed by the employer and employer’s insurance carrier if the Fund paid a preliminary award that is subsequently determined to be the obligation of the employer and employer’s insurance carrier.
The Fund also argues there is no statutory authority for that part of K.A.R. 51-15-2 that authorizes the administrative law judge to award compensation against the Fund following a preliminary hearing. Legislative intent is not precise in the areas complained of. Legislative intent is crystal clear, however, that no appeal can be taken to the district court or to this court from a temporary award arising out of a preliminary hearing (K.S.A. 1980 Supp. 44-534a). Thus, neither this court nor the district court has jurisdiction to decide the issues. As we view the problem the Fund was confronted with, the only remedy available would have been a mandamus action against the director.
The legislature, if it desires to do so, will have an opportunity to clarify its intent in the current session.
Reversed and remanded to the district court with directions to dismiss the appeal for lack of jurisdiction. | [
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Harman, C.J.
Retired: This is an action against the trustee in bankruptcy of a pipeline dealer for a judgment of $118,282.67 and further to have that judgment declared a lien on gas pipeline property in Meade County. Plaintiff prevailed in trial to the court upon stipulated facts. The pipeline property owner alone has appealed. The issue here is the propriety of the lien adjudication under our lien statutes.
Defendant-appellant The Kansas Power & Light Company owned a certain pipeline, pipeline gathering system and pipeline easements in four Kansas counties, including Meade County. (The case now before us involves only Meade County property.) It desired to and did construct pipelines irt these counties, acting it says, as its own general contractor. KPL verbally contacted Continental Pipe and Tube Corporation at St. Louis, Missouri, for quotations on needed pipe. Continental determined that plaintiff-appellee, Interlake, Inc., Newport, Kentucky, would be the source of the pipe and so informed KPL. In April 1976, KPL verbally ordered the pipe from Continental, specifying it should be shipped to “KPL do Plexco,” a rust-proofing pipe-coater in Franklin Park, Illinois. That same day Continental issued its written purchase order to Interlake for the specified pipe quantities, with a total purchase price of $443,744.93. Continental’s purchase order specified that the pipe was to be shipped via rail to Kansas Power & Light Co., do Plexco, 3240 N. Mannheim Road, Franklin Park, Illinois. Further directions stated: “1. Reship to Kansas City [sic] Power & Light, Meade, Kansas on completion of coating. 2. Advise purchaser of car number and contents prior to shipment.”
On May 19, 1976, KPL issued its written purchase order to Continental confirming its prior verbal order; transportation was to be by rail from Newport, Kentucky, prepaid and allowed, to Meade and Ashland, Kansas. Between June 1 and July 30, 1976, Inter lake shipped the entire order to Plexco in Franklin Park, Illinois. Continental at no time had physical possession of the pipe. Plexco coated the pipe pursuant to its separate contract with KPL. KPL purchased other materials, fittings and equipment from other sources, which were used in the pipeline construction. About July 28, 1976, KPL entered into a contract with J & B Construction Company to construct the pipelines in question. KPL furnished J & B all materials used in the construction job. J & B fulfilled its contract and was paid by KPL. J & B had no agreement of any kind with Continental, Interlake or Plexco.
By mid-August, 1976, KPL had paid Continental the full purchase price of thé pipe. Continental paid Interlake a total of $150,000 prior to Continental being adjudicated a bankrupt October 22, 1976. Interlake’s price for the pipe laid in Meade County is $227,769.98. The parties have agreed that $109,487.31 of the $150,000 payment received by Inter lake should be credited against the pipe laid in Meade County (thus Interlake’s claim for a mechanic’s lien on KPL’s Meade County property is for $118,282,67).
The parties agree the pipe delivered in Meade County was used in KPL’s gas pipeline project and that there was no verbal Or written agreement between KPL and Interlake, except as Inter- lake may claim an agency relationship between Continental and either KPL or Interlake. The parties also agreed as to the facts concerning the filing of the liens in question, service of notices, filing of the suit and the like and no issue is raised as to these formalities. The parties also have supplied us with information as to what has occurred in a lawsuit brought in Illinois by Interlake against KPL in which Interlake sought to recover possession of certain pipe it had delivered to Plexco pursuant to its agreement with Continental, which pipe was still in Plexco’s possession.
The trial court here found that Continental was in effect a contractor and that Interlake was in effect a materialman subcontractor and as such entitled to a mechanic’s lien under K.S.A. 55-208. KPL appeals this judgment.
KPL presents an ingenious argument in derogation of the lien adjudication. It predicates basic error in the trial court’s determination that Continental was a contractor rather than a material-man. It would have us determine, from language used in K.S.A. 55-210, and elsewhere, that four separate functional types of persons are afforded protection under our mechanic’s lien laws, namely contractors, subcontractors, materialmen and laborers, and that the status of each, as well as the extent of protection, depends upon his contractual relationship with and distance from the owner of the property which has been improved. We omit some of the steps and arguments in appellant’s thesis but its bottom line is that Continental was not a contractor as declared by the court but was only a materialman and Interlake was similarly simply a materialman and that our law provides no lien to a materialman of a materialman. •
Rather than dealing in categorizations that could lead to a tyranny of labels regardless of other meaningful criteria, let us look at our statutes and decisions under them (this is an area in which decisions from other jurisdictions are of little or no value because of differences in statutes and also in lack of universality in interpretation).
We have two separate mechanic’s lien laws, one, the general law found at K.S.A. 60-1101 et seq., as amended, and the other, dealing specifically with oil and gas properties, being K.S.A. 55-207 et seq. We examine both for several reasons: K.S.A. 55-210 does provide that liens for labor and materials furnished to the owner of a leasehold for oil and gas purposes shall be enforced in the same manner as liens for mechanics and others against real estate; the two sets of statutes should be construed harmoniously; and, although the trial court adjudicated a lien under 55-208 and the parties assert and deny rights thereunder, Interlake also claims entitlement to a lien under the general law.
K.S.A. 60-1101, in effect in 1976, but since amended to extend a measure of protection to an owner of residential property,, provided in pertinent part:
“Any person furnishing . . . material, or supplies used or consumed for the improvement of real property, under a contract with the owner or with the . . . agent ... of the owner, shall have a lien .• . . .”
K.S.A. 60-1103 (a) provided:
“Any subcontractor or other person furnishing . . . material or supplies, used or consumed at the site of the property subject to the lien, under an agreement with the contractor, or a subcontractor of the contractor, may obtain a lien . . . .”
Before proceeding further we should note the relationship between the two statutes arising from the language employed. K.S.A. 60-1101 affords a lien for a person furnishing material under a contract with the owner. The word “contractor” is not used. K.S.A. 60-1103 affords protection to a person furnishing material under an agreement with “the contractor” or a subcontractor of “the contractor.” We think the phrase “the contractor” in 1103 can only be construed to refer to the one mentioned in 1101 as “any person furnishing . . . material . . . under a contract with the owner.”
K.S.A. 55-207, in effect in its present language since 1925, provides:
“Any person- . . . who shall under contract, express or implied, with . . . the owner of any gas pipe line ... or with the . . . agent of such owner, who shall . . . furnish material . . . shall have a lien upon the . . . gas pipe line . . . .”
K.S.A. 55-208, in effect, unamended, since initial enactment in 1909, provides:
“Any person . . . who shall furnish such . .. . supplies to a subcontractor under a contractor . . . may obtain a lien upon . . . any gas pipe line . . . .”
KPL acknowledges that K.S.A. 55-208, pursuant.to which the trial court acted, affords.protection to four classes of persons: 1. A laborer employed by a contractor; 2. a subcontractor; 3. a materialman of a subcontractor; and 4. a materialman of a contractor. KPL concedes this fourth protection is one afforded judicially in Mountain Iron & Supply Co. v. Branum, 200 Kan. 38, 434 P.2d 1015 (1967), but it would narrowly limit that protection to the categorization it chooses to use as heretofore mentioned — reiterating that there is no authority for a lien to a materialman of a materialman.
In urging this narrow construction KPL relies heavily on Indiana Limestone Co. v. Cuthbert, 126 Kan. 262, 267 Pac. 983 (1928), for statements it considers significant in distinguishing between the terms “contractor,” “subcontractor” and “materialman.” There a general contractor undertook construction of a building, including the procurement of all labor and material. A subcontractor undertook the supply of stone called for in the plans. Plaintiff supplied cut stone to the subcontractor who did nothing except procure the stone from plaintiff and deliver it to the site of the building project. The subcontractor did not pay plaintiff. In an action to recover on a bond the crucial determination, made under general mechanic’s lien law then in effect, was that plaintiff was a materialman and not a subcontractor and hence was barred from asserting a lien.
The statute under which Indiana Limestone was decided was R.S. 1923, 60-1403, which to the extent it was pertinent provided:
“Any person who shall furnish any such material , . . under a subcontract with the contractor . . . may obtain a lien ....’’ (Emphasis supplied.)
Thus we see a narrow statute strictly interpreted, a result which has been diluted by statutory amendment. Compare the foregoing with its much broader counterpart in effect when this case arose — K.S.A. 60-1103, under which any person furnishing material used or consumed at the site under an agreement with a subcontractor is protected. The Indiana Limestone holding has been diluted judicially as well in decisions under oil and gas lien laws.
In Meadows v. Oil Co., 108 Kan. 228, 194 Pac. 916 (1921), the court held that under the oil and gas lien statutes which are the predecessors of our present K.S.A. 55-207 and -208 that a lien for material will attach to an oil and gas leasehold where the material is furnished to the owner of the lease, to his agent, or to a contractor, for the development or improvement of the lease or the property used in connection therewith (Syl. ¶ 1 and 2). The foregoing was followed in Skinner v. Oil Co., 112 Kan. 742, 212 Pac. 684 (1923), in Woodmansee v. Oil and Gas Co., 113 Kan. 637, 216 Pac. 276 (1923), and eventually in Mountain Iron & Supply Co. v. Branum, 200 Kan. 38. In all these cases little concern was shown for any particularly descriptive label for the lien claimant. For example, in Mountain Iron we find these terms in discussion with reference to one type of claimant: “[A] subcontractor, who furnishes labor or materials to one who has a drilling contract with the owners,” Syl. ¶ 1 (b); “dealer in oil well supplies,” 200 Kan. at 38, 39; “subcontractor,” 200 Kan. at 39, 43, 48; “materialman subcontractor,” 200 Kan. at 41; “materialman,” 200 Kan. at 46; “a laborer who was clearly a subcontractor,” 200 Kan. at 44. Mountain Iron did grant a lien to one who furnished supplies for another who had a contract relationship with the owner of an qil and gas lease. We are aware of no decision in which loose language has been used in a definitive way so as to affect the substantial rights of the parties.
Our decisions are in harmony with the broad language used in the statutes affording lien protection to those supplying material for a particular project — named in 60-1103 as “any subcontractor or other person . . .” and in 55-208 as “any person’ furnishing supplies to a subcontractor, the scope of the latter being expended by Mountain Iron to include a contractor.
Here we think it is of little import whether Continental is called a contractor, subcontractor, materialman or something else. (Nor is it of much consequence that KPL asserts it was its own general contractor. In the Illinois lawsuit in which Interlake sought recovery of the pipe still in Plexco’s possession, and this may serve to illustrate a point, KPL claimed Continental was a broker, which is a form of agency, rather than a distributor.) Continental certainly did not act as a distributor — it did not have on hand any pipe used in the project which it had purchased from Interlake prior to entering into its contract with KPL, for which pipe Interlake clearly would not have a lien.
What is important here is that Continental had a contractual relation with KPL to procure certain pipe; Continental entered into an agreement with Interlake, whereby, with KPL’s knowledge and at its direction, Interlake delivered the pipe to KPL, in care of KPL’s designated pipe-coater in Illinois, thence to be transported to KPL for use on its property in Meade County, the pipe being so earmarked from the beginning of Continental’s transaction with Interlake; and finally the pipe was used on KPL’s property, as intended from the beginning by all concerned.
We think the trial court correctly adjudicated a lien under K.S.A. 55-208. We deem it unnecessary to determine appellee’s entitlement to a lien under other statutes.
Interlake has cross-appealed from the trial court’s denial of prejudgment interest. It concedes the purchase order from Continental did not mention interest but points out that its invoices called for payment within thirty days and further contained a clause stating that the amount of the bill was subject to interest after maturity.
Interlake notes that K.S.A. 84-2-207(2) allows additional terms to be added if there is no material alteration or objection. The official U.C.C. Comment No. 5 to 84-2-207 states:
“5. Examples of clauses which involve no element of unreasonable surprise and which therefore are to be incorporated in the contract unless notice of objection is seasonably given are ... a clause providing for interest on overdue invoices or fixing the seller’s standard credit terms where they are within the range of trade practice and do not limit any credit bargained for . . . .”
The trial court received no evidence as to standard credit terms or trade practices since this matter was not included in the stipulated facts. Kansas common law has allowed recovery of interest on an account once the amount and due date are fixed. In First National Bank v. Banker’s Dispatch Corporation, 221 Kan. 528, Syl. ¶ 6, 562 P.2d 32 (1977), the court held:
“When an amount is due upon contract, either expressed or implied, and there is no uncertainty as to the amount which is due on the date on which it became due, the creditor is entitled to recover interest from the due date.”
Interest may be recovered in a mechanic’s lien foreclosure action, Benner-Williams, Inc. v. Romine, 200 Kan. 483, 437 P.2d 312 (1968).
Here the claim was liquidated and Interlake was entitled to prejudgment interest, to be calculated as follows: 6% interest from August 30,1976, to July 1, 1980, and 10% interest from July 1, 1980, the effective date of the statutory change in rate of prejudgment interest (K.S.A. 1980 Supp. 16-201), to August 11, 1980, the date of the judgment.
The judgment is affirmed upon appeal, the cross-appeal is sustained and the cause is remanded with directions to grant prejudgment interest in accord with the foregoing.
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Herd, J.:
This is a breach of contract action in which the trial court relieved appellee of liability for breach under the doctrine of impossibility of performance. Sunflower Electric appeals.
Appellant, Sunflower Electric Cooperative, Inc., a member of the R.E.A. family, is a public utility in the business of generating electricity for wholesale to eight member cooperatives. Its main generating facility is located in Finney County. Appellee, Tomlinson Oil Company, Inc., is a corporation involved in oil and gas production. It owned a number of oil and gas leases in an area known as the Stranger Creek gas field in Leavenworth County.
On November 29, 1973, the parties executed an agreement for the sale and purchase of natural gas which is the subject of this action. Under the agreement, Tomlinson promised to sell and Sunflower to buy 3 MMCF (million cubic feet) of gas per day from the reserves in the Stranger Creek field. Tomlinson also promised to develop its reserves so as to guarantee delivery of 7 MMCF per day. The price was fifty-five cents per MCF (thousand cubic feet) for the first year after initial delivery, increasing one cent per MCF each year for three years. After the fourth year the price would be renegotiated or submitted to arbitration. Under an exchange agreement with Kansas-Nebraska Natural Gas Co., Inc., the gas would be delivered to a Cities Service storage facility in Leavenworth County. Kansas-Nebraska would then deliver an equivalent amount of gas to a point four miles south of Sunflower’s generating facility in Finney County. Tomlinson had to build a 13.2 mile pipeline to the Cities Service storage facility and Sunflower a 4.5 mile pipeline to the Kansas-Nebraska exchange delivery point. For purposes of appeal, the following provisions of the agreement are particularly relevant:
“Section I. Gas to be purchased and Sold Hereunder. The gas to be sold by Seller and purchased by Buyer under the terms of this agreement shall be produced from Seller’s gas reserves now existing and that will exist during the term of this agreement under Seller’s Leasehold Area ....
“Section III. Dedication of Acreage. Seller shall dedicate to Buyer a gas supply from the reserves under the Seller’s Leasehold Area up to 7 MMCF per day for a period of fifteen (15) years ....
“Section IV. Deliverability and Development. Seller shall deliver not less than 3 MMCF of gas per day at the commencement of delivery of gas as herein provided for, and shall proceed to systematically and expeditiously develop its leases in Seller’s Leasehold Area in such a manner as to guarantee the maximum deliverability herein contracted for at the earliest possible time and to continue the maximum deliverability for the full term of this agreement.
“Section XII. Specific Performance. Buyer and Seller each expressly recognize that the purchase of gas and the availability of gas to Buyer is the essence of this Agreement, that gas is a valuable and depleting natural resource, and that the private interests of Buyer as well as the interests of the consuming public of electricity served by Buyer would be irreparably damaged in the event that Seller failed to make the deliveries of gas herein agreed upon . . . The Seller and Buyer stipulate that the payment of money damages would not be adequate to satisfy the claims of Buyer or Seller for the breach of this agreement, and that by reason thereof this agreement shall be enforceable by specific performance, and that either party may seek specific performance thereof against the other.”
Both parties constructed their respective pipelines which were completed by November 1974. Tomlinson breached the contract the first day and was never able to deliver the minimum amount of gas called for by the contract thereafter. In 1975 Tomlinson delivered only 88,479 MCF compared with 985,500 MCF it would have had to deliver to meet the minimum. In July 1976, Tomlinson stopped all production in the Stranger Creek field and hence deliveries under the contract. Sunflower had to look elsewhere for its natural gas supply. Sunflower then filed this action.
The trial court’s findings of fact may be summarized as follows. The Stranger Creek field is located five to six miles northeast of an older field known as the McLouth field, now used as a storage area. The McLouth field, developed in the 1930’s, at one time had 90 producing gas wells. Its history was extensively analyzed in a 1941 publication of the Kansas Geological Survey known as Bulletin 53. One of the early developers of the Stranger Creek field was Bill Iverson. Iverson was the consulting geologist on approximately fifteen wells in this field. From 1968 to 1970 Iverson and his partners, encouraged by Bulletin 53 and similarities to the older McLouth field, bought leases of 1200 acres in the Stranger Creek field. They then sold this acreage to J. A. Allisen in mid-1970. Allisen acquired additional leases and bought leased wells upon which pipe was set. In the fall of 1971, Allisen sold a one-half interest to Tomlinson and later another one-fourth interest. Ultimately Allisen and Tomlinson acquired 80 leases covering 9874.62 acres in the Stranger Creek field.
Prior to entering into the contract with Sunflower in November of 1973, Tomlinson had purchased 6 wells and drilled 6 wells. Of these twelve wells, only five (Pauley #1, Collins #1, Feverly #2, Kellison and Jones #1) were potential producers, with the remainder being dry holes or abandoned as not commercial. Multipoint back pressure tests, most of which were performed in October, 1972, by Cities Service revealed gas flows for these five wells as follows: Pauley # 1 (675 MCF), Collins # 1 (1200 MCF), Feverly # 2 (846 MCF), Kellison (3680 MCF), and Jones # 1 (589 MCF). A multipoint back pressure test measures the relationship of short-term gas flow to the back pressure of a pipeline but is not a measure of the well’s long-term capacity or the gas reserves. The presence of heavy oil in all these wells was noted early.
In November, 1974, the five wells were connected to the pipeline Tomlinson had constructed to the Cities Service storage facility and gas was produced and sold under the contract starting December, 1974. Tomlinson experienced problems with heavy oil immediately but was unconcerned because three wells, Pauley, Feverly and Collins, had been shut in for some time. The Pauley well never produced as the weight of fluid was heavier than the gas. The other four wells went on the line at a good flow of gas but went into a rapid decline. On February 4, 1975, E. B. Kreiter, production manager for Tomlinson, prepared a progress report in which he noted that the wells were “declining at an abnormally high rate which would indicate a small reservoir or one of limited permeability.” On April 29, Tomlinson checked fluid levels on these wells and calculated bottom hole pressure. All wells had a decline in pressure and were full of fluid. In May of 1975, Tomlinson drilled Jones # 2 and Edmonds # 1, neither of which were commercial wells. In June of 1975, Feverly # 2 was temporarily abandoned. The remaining wells produced some small amount of gas through July of 1976, when all production stopped.
As production declined, Tomlinson found heavy oil fouling up all of its separators, tubing and meters. Kerosene and steam would not clean this equipment. The oil changed to a solid-like asphalt. A sample of the heavy oil from the Pauley # 1 well was found to have a viscosity of 100,000 centipoise at 100° F with a pour point of 90° F. Normal crude oil has a viscosity of 10 to 100 centipoise. Because of the heavy oil problem, Tomlinson decided not to spend any additional time or money in developing or producing in the Stranger Creek field.
The trial court summarized the testimony of the geologists and petroleum engineers as to why Stranger Creek failed to produce:
“Bill Iverson is a consulting geologist with 30 years experience. He was the well site geologist on most of the Holden - Tomlinson wells in the Stranger Creek field and was familiar with other wells in the area. When he sold his interests to Allisen in 1970, he was of the opinion that the Stranger Creek field had commercial possibilities. He had formed no opinion on potential reserves and expressed none to Tomlinson. The new field appeared similar to the successful McLouth field, but with thinner McLouth sands. All wells had thick oil and the porosity and permeability of the producing sands was erratic. His present opinion is that there is no possibility of commercial production now.
“Robert Gill has been a petroleum geologist since 1941. In 1970, he was Vice President in charge of exploration with Tomlinson Oil. He reviewed the Iverson material received from Mr. Allisen and helped to decide to acquire for Tomlinson a three-fourths interest. He established a development program for drilling four wells and then two more based on Iverson’s recommendations as to location. He thought the similarities to the McLouth field were very favorable. In a letter dated October 20, 1972, he estimated reserves of over 4 billion cubic feet of gas based upon the existing well measurements and the McLouth field production. He admits he has no background for calculating gas reserves as this is an area of expertise of the petroleum engineer.
“Edgar B. Kreiter has been a petroleum engineer since 1950. From 1970 to 1977, he was production manager for Tomlinson Oil and kept abreast of the Stranger Creek gas field development. It was his decision to build the Tomlinson pipeline. He thought he had enough data to estimate reserves volumetrically. His estimate initially was 450,000 MCF per quarter section or 27 million MCF for 60 quarter sections (27 billion CF). This estimate was based primarily on the McLouth field and the tests on the Kellison # 1 well. In 1976 after the heavy oil became a problem, he concluded that the oil was changing to a solid when it experienced pressure and temperature changes as it left the formation and started up the well bore. He thought this problem existed everywhere in the field and would plug the formations. It was his decision not to drill further in July of 1976. He doesn’t think bottom hole heaters or steam would solve the heavy oil problem. He admits that Cities Service tests were probably wrong and that an independent audit of Gruy and Associates, Inc., Petroleum consultants, prepared for Tomlinson in August of 1973, shows reserves of only 4.375 million MCF (4.3 billion CF). His present opinion is that it is a good possibility that the reservoir is exhausted and there remain no commercial gas reserves. He did not think either the contract or prudent development required more drilling before the pipeline was completed.
“George Lathum Yates has been a petroleum engineer since 1934. He was consulted in 1974 by two persons who had a working interest in Tomlinson wells in Stranger Creek who wanted an estimate of reserves before investing in the Tomlinson pipeline. He obtained all information which Tomlinson had on the field. His opinion was that the data available to Tomlinson was insufficient to calculate reserves and further investment was unwise. In particular he felt the radioactive logs were insufficient to indicate porosity or water saturation. He made a further investigation after the wells went on the pipeline and developed heavy oil problems. His opinion was that the pressure drop in the wells was from exhaustion of the gas, not heavy oil problems. He thought Mr. Kreiter’s estimate of reserves overly optimistic.
“Tom H. Green is a geologist with over 20 years experience. He was hired by plaintiff, Sunflower Electric, to review the available material on the Stranger Creek field. His opinion was that the Tomlinson wells were similar to wells at the edge of the McLouth field which had been dry holes or experienced heavy oil problems. He thought that the lower sands in the Kellison well were filled with heavy oil and the gas came up first exhausting the reservoir. His investigation indicated no proven anticlinal features in the field and no dual induction or porosity logs. His opinion was that the field had no commercial possibilities and this could have been determined from pre-1973 data.
“Eddie J. Hudson is a consulting petroleum engineer with 20 years experience. He was hired by plaintiff to review the data on the Stranger Creek field. He thought the data on Stranger Creek was poor and that electric log resistivity curves and porosity logs should have been obtained. His opinion was that the Kellison # 1 well had gas in only the upper 6 feet to 8 feet with heavy oil below. The heavy oil only became a problem after the gas was depleted. The data is insufficient to estimate reserves under any standard method and Kreiter’s estimate is far too optimistic. He would estimate no more than 1 billion CF of gas in the field. If heavy oil were the only problem, steam, pumping or heat might solve but there is no gas left. However, the Tomlinson drilling program after the contract was signed was prudent development and exploration.”
From this conflicting testimony the trial court found:
“[T]hat the gas in the Stranger Creek field is exhausted and that heavy oil is a problem only because of the depletion of gas. The Tomlinson estimates of reserves when the contract was signed were over optimistic. However, the Tomlinson development program and operation after the contract was signed was reasonable and prudent and further efforts by anyone at this time would not result in production of any significant amount of gas from the Stranger Creek gas field.”
In its conclusions of law, the trial court first held that the agreement was subject to the Uniform Commercial Code and that Sunflower’s measure of damages under K.S.A. 84-2-712(2), was the difference between the cost of “cover,” i.e., fuel purchased in substitution for that due from Tomlinson, and the contract price. The court found that Sunflower’s calculation of $2,614,011.13 based on the cost of replacement fuel for the four years of the agreement for which the price of gas was set was proper as damages under this formula. This amount is not challenged on appeal. Based on its finding that the gas in Stranger Creek was exhausted, the court denied specific performance.
The court then considered Tomlinson’s liability for damages. The agreement contained an “uncontrollable forces” clause which the court held inapplicable. Again, this ruling is not challenged on appeal. The court did hold, however, that Tomlin-son should be relieved under the doctrine of impossibility of performance. In so finding the court stated in part:
“[T]his is a contract where a particular gas field was being developed and a supply of gas from the leases and acrege dedicated in that field is a basic assumption of the contract and the only source contemplated. Failure of the Stranger Creek gas field to produce sufficient quantities of gas to fulfill the contract for any reason other than the fault of the defendant is an'excuse for non-performance under Restatement of Contracts, supra, § 283 or § 286, unless the defendant assumed this risk.
“. . . Nothing in the contract guarantees, warrants or promises that a sufficient reserve exists and will exist to fulfill the contract and the Court cannot conclude that one party rather than the other assumed the risk of a particular reserve.
“The defendant has contended throughout that this is a case of supervening impossibility due to the unexpected problem with heavy oil. There is little question but what oil with a viscosity 10,000 times that of normal crude oil would and did produce unique and probably unsolvable problems with production. However, the weight of the evidence seems to now suggest that the Stranger Creek gas field is not similar to the McLouth field and the gas reserves in this field were quite small when the contract was signed. If this is correct, then we are dealing with original impossibility. This still makes no difference from a legal standpoint, so long as defendant Tomlinson was not at fault in failing to foresee this contingency. When the contract was signed, Tomlinson had five apparently good gas wells with multipoint back pressure tests indicating tremendous quantities of gas. Most of the geologists found similarities to the highly successful McLouth field nearby. Gas reserves are difficult to estimate prior to actual production and the plaintiff’s witnesses thought the data insufficient to even try. Whether better data prior to execution of the contract would have given a better picture of the reserves is speculative. In order to accurately project reserves, it is necessary to have production, which requires a pipeline and a market, hence the contract. The Court finds that defendant Tomlinson was not at fault in failing to foresee the rapid depletion of the Stranger Creek field. The parties contracted on the basic assumption that the Stranger Creek leases contained substantial gas reserves. The defendant Tomlinson proceeded as a prudent and diligent developer in building the pipeline and then expanding its exploration. They are to be excused by reason of objective impossibility of performance, whether original or supervening. Restatement of Contracts, supra, §§ 281, 283, 286(1).”
The court also denied charges to Sunflower for the $262,209.55 it had spent on the pipeline constructed under the agreement in Finney County. From these rulings, Sunflower appeals.
Where the trial court has made findings of fact and conclusions of law, the function of this court on appeal is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. City of Council Grove v. Ossmann, 219 Kan. 120, Syl. ¶ 1, 546 P.2d 1399 (1976). In determining whether a trial court’s findings of fact are supported by the evidence, it is not the function of an appellate court to weigh conflicting evidence, pass on the credibility of witnesses or rede termine questions of fact, and our only concern is with evidence which supports the trial court’s findings, and not with evidence which might have supported contrary findings. Addis v. Bemardin, Inc., 226 Kan. 241, Syl. ¶ 2, 597 P.2d 250 (1979).
Accordingly, this court must determine whether the trial court’s findings of fact are supported by the evidence and whether those findings support the legal conclusion that Tomlinson should be excused from its obligation under the contract because of the doctrine of impossibility of performance. The latter determination is one of law. Restatement (Second) of Contracts, ch. 11, Introductory Note, pp. 309-10 (1981). Moreover, insofar as determination of this case requires interpretation of the agreement itself, the standard of review is that regardless of the construction of a written instrument made by the trial court, on appeal the instrument may be construed and its legal effect determined by the appellate court. State Bank of Parsons v. First National Bank in Wichita, 210 Kan. 647, Syl. ¶ 1, 504 P.2d 156 (1972).
The law has long since recognized that impossibility, or as stated by the more modern authorities, impracticability of performance may relieve a promisor of liability for breach of contract. Such impracticability may arise after the contract, in which case it is referred to as “supervening” or may exist at the time of the contract, in which case it is referred to as “original” or “existing.” The trial court found this to be a case of existing impracticability in that the weight of the evidence suggested that Stranger Creek never contained sufficient reserves to meet the contract requirement. The general rule as to existing impracticability is stated in Restatement (Second) of Contracts § 266 (1981):
“Where, at the time a contract is made, a party’s performance under it is impracticable without his fault because of a fact of which he has no reason to know and the non-existence of which is a basic assumption on which the contract is made, no duty to render that performance arises, unless the language or circumstances indicate the contrary.”
This statement of the general rule encompasses the exceptions to relief: (1) the impracticability must not have been caused by the promisor (fault), (2) the promisor must have had no reason to know of the impracticability (foreseeability); and (3) the language or circumstances may indicate that the promisor not be relieved because of the impracticability (assumption of the risk).
The Restatement rule adopts in large part the rationale of section 2-615 of the Uniform Commercial Code. The Code clearly applies here. The sale of gas contemplated by the agreement was the “sale” of “goods.” K.S.A. 84-2-J.05 and -2-106. See Amoco Pipeline Co. v. Admiral Crude Oil Corp., 490 F.2d 114 (10th Cir. 1974). K.S.A. 84-2-615 provides in pertinent part:
“Except so far as a seller may have assumed a greater obligation ....
“(a) Delay in delivery or nondelivery in whole or in part by a seller ... is not a breach of his duty under a contract for sale if performance as agreed has been made impracticable by the occurrence of a contingency the nonoccurrence of which was a basic assumption on which the contract was made . . . .”
Official comments 5 and 8 indicate that fault and foreseeability, as well as assumption of the risk, are exceptions to relief under this provision.
A distinction is also drawn between impracticability which is “subjective” and “objective.” This has been described as the difference, respectively, between “I cannot do it” and “the thing cannot be done.” See State Highway Construction Contract Cases, 161 Kan. 7, 67, 166 P.2d 728 (1946). Only objective impracticability may serve to relieve a party of his or her contractual obligation.
There appears to be no real dispute that the existence of sufficient reserves in Stranger Creek to meet the contract requirements was a “basic assumption” of the agreement. Since under the trial court’s findings sufficient reserves do not exist, the general rule provides that Tomlinson should be relieved from liability, unless one of the exceptions applies. Sunflower’s six points on appeal are overlapping and repetitious but may be reduced to the following: (1) the impracticability of performance was subjective, (2) Tomlinson was at fault in developing Stranger Creek, (3) lack of sufficient reserves was foreseeable by Tomlin-son, (4) Tomlinson assumed the risk of impracticability, and (5) it would be inequitable to grant relief under the circumstances of this case.
We first consider the argument that this is a case of subjective impossibility. As the trial court found, most of the Kansas cases which have considered the doctrine of impossibility of performance have been found to involve subjective impossibility and thus relief has been denied. The general rule is stated in White Lakes Shopping Center, Inc. v. Jefferson Standard Life Ins. Co., 208 Kan. 121, Syl. ¶ 2, 490 P.2d 609 (1971):
“When one agrees to perform an act possible in itself he will be liable for a breach thereof although contingencies not foreseen by him arise which make it difficult, or even beyond his power, to perform and which might have been foreseen and provided against in the contract.” (Emphasis added.)
In White Lakes the alleged impossibility was that more financing was needed for a construction project than had previously been agreed to in a loan commitment. Impossibility, if it was such, was held to be subjective. See also e.g., Wichita Properties v. Lanterman, 6 Kan. App. 2d 656, 633 P.2d 1154 (1981), (inability to obtain liquor license); Meyer v. Diesel Equipment Co., Inc., 1 Kan. App. 2d 574, 570 P.2d 1374 (1977), (difficulty in securing parts); Bailey v. Talbert, 179 Kan. 169, 294 P.2d 220 (1956), (inability to transfer franchise); State Highway Construction Contract Cases, 161 Kan. 7, (inability to complete construction project due to war related labor and equipment shortages); International T. & R. Corp. v. Benscheidt, 141 Kan. 416, 41 P.2d 737 (1935), (unprofitability of purchasing sugar for alcohol manufacture after alcohol permit revoked); City of Topeka v. Industrial Gas Co., 135 Kan. 646, 11 P.2d 1034 (1932), (inability to obtain certificate to do business); Drug Supply Co. v. Board of Administration, 106 Kan. 256, 187 Pac. 701 (1920), (inability to furnish supplies after judicial sale of plaintiff’s assets).
Sunflower’s argument that the agreement for the sale of gas is a thing possible “in itself” ignores the agreement which was expressly limited to sale of gas produced from Stranger Creek. The trial court’s findings of fact that Stranger Creek is exhausted and further efforts by anyone would not result in production is supported by the evidence. The trial court’s finding also disposes of Sunflower’s argument that “the use of pumping units and bottom hole heaters could have been utilized to improve production . . . .” Thus, the sale of gas from Stranger Creek is impossible for anyone to perform, making this a case of objective impossibility.
Second, Sunflower argues that the fault exception applies to Tomlinson because it failed to expeditiously develop Stranger Creek. This argument appears to be based on the fact only five wells were connected to the pipeline constructed to deliver gas under the agreement, and after it became apparent these wells would not produce sufficient gas to meet the contract requirements, only two additional wells were drilled, neither of which produced. This argument must fail for two reasons. First, the trial court found “defendant Tomlinson proceeded as a prudent and diligent developer in building the pipeline and then expanding its exploration.” This finding is supported by the evidence. Secondly, failure to drill additional wells cannot be deemed “fault” in light of the trial court’s finding that the reserves are exhausted. Failure to develop Stranger Creek, whether expeditiously or not, did not contribute to the impracticability involved in this case, i.e., the lack of reserves.
Because of the manner in which we dispose of this case we will discuss Sunflower’s third and fourth arguments together. Those arguments are: the lack of reserves was foreseeable by Tomlinson and Tomlinson assumed the risk that the reserves would be insufficient. As both the Restatement and the Code indicate, the language or circumstances of a contract may indicate that a party has assumed an obligation to perform despite impracticability. Such an assumption of the risk may be implied and foreseeability may be a factor in such a determination. See Restatement (Second) of Contracts § 261, Comment c (1981). Official comment 8 to K.S.A. 84-2-615 states:
“The provisions of this section are made subject to assumption of greater liability by agreement and such agreement is to be found not only in the expressed terms of the contract but in the circumstances surrounding the contracting, in trade usage and the like. Thus the exemptions of this section do not apply when the contingency in question is sufficiently foreshadowed at the time of contracting to be included among the business risks which are fairly to be regarded as part of the dickered terms, either consciously or as a matter of reasonable, commercial interpretation from the circumstances.”
Was the lack of reserves in Stranger Creek “sufficiently foreshadowed” at the time of contracting to be considered a risk assumed by Tomlinson? The trial court found Tomlinson was not “at fault” in failing to foresee the lack of reserves in Stranger Creek. This was based on the fact that when the contract was signed, Tomlinson had five wells with multipoint back pressure tests indicating sufficient gas to meet the contract requirements and the fact that most of the geologists found similarities to the successful McLouth field. The court also found, however, that multipoint back pressure tests do not provide a measure of reserves. The court specifically found that “[g]as reserves are difficult to estimate prior to actual production and the plaintiff’s witnesses thought the data insufficient to even try.” We think the court applied too strict a standard of foreseeability. It may well be true under prudent business standards, Tomlinson assumed it had reserves in Stranger Creek. However, the evidence is overwhelming and the trial court’s own findings are to the effect that such reserves are inherently unknown. Tomlinson, in its brief, supports this conclusion when it states that “[a]ll the experts agreed one does not know what is below the ground and that the responsible estimates can be way off.” Green and Yates gave Tomlinson a negative report on reserves. The favorable reserve reports were by Tomlinson’s employees. They based their opinion on Bulletin 53 pertaining to the McLouth field and a pressure test which admittedly did not pertain to reserves. We conclude Tomlinson should have foreseen Stranger Creek might not contain sufficient reserves.
In Berline v. Waldschmidt, 159 Kan. 585, 156 P.2d 865 (1945), the court applied foreseeability to deny relief on a claim of commercial frustration. In that case plaintiff was the owner of an undivided one-half interest in the oil and gas on a five-acre tract, and, under the terms of the deed, had the right to drill on the land. The deed was for a term of five years. Prior to the expiration of the five-year term and before plaintiff had drilled any wells, a federal law (passed as a war measure) prohibited drilling on a tract of less than forty acres. Plaintiff sought to extend the term of his deed due to this occurrence. The court denied relief, stating:
“For our purposes it can be stated the question of whether the doctrine of commercial frustration is applicable depends upon the particular circumstances and conditions of each case as it is presented for consideration. So, also, it can be said it is predicated upon the fundamental premise of giving relief in a situation where the parties could not reasonably protect themselves by the terms of their contract against contingencies which later arose, and that it never applies to give such relief where the risk of the event that has supervened to cause the alleged frustration was reasonably foreseeable, and could and should have been anticipated by the parties and provision made therefor within the four corners of the agreement which it is contended should be supplemented through operation and application of the doctrine. If the events relied upon as bringing the doctrine into force and effect appear to have been reasonably foreseeable and controllable by the parties, they may not invoke its principles as a defense to escape their obligations and the contract is enforceable in accordance with the provisions to be found therein.” 159 Kan. at 588-89.
The court found that at the time of the contract (May 27, 1939), war was foreseeable and that in any event the regulation of well acreage was well established prior to that date so that the prohi bition was foreseeable on that ground as well. See also State Highway Construction Contract Cases, 161 Kan. 7 (war foreseeable).
Tomlinson would have us abandon the rule that if the event was foreseeable the parties must make provision for it in the contract or be bound. It points out that Williston finds this rule “descended in the law from a time when it was more nearly true than it now is, because impossibility was more rarely an excuse.” 18 Williston on Contracts § 1953 (3rd ed. 1978), p. 118. That treatise proposes the following test which Tomlinson would have us apply here:
“If the event causing the impossibility in question could not only have been anticipated but its occurrence could have been guarded against by the promisor (not the effect of it by a provision in the contract but the occurrence itself by preventing its happening), it is reasonable to assume that the promisor took the risk of the continued possibility of performance.” p. 119.
Even were we to adopt this test of foreseeability, however, the present case falls within the next sentence of § 1953, which provides:
“A similar argument is appropriate where the promisor, although having no power to prevent the contingency, had superior knowledge of the possibility of its happening.”
Here, Tomlinson, as a company in the business of oil and gas production, and as the owner of the Stranger Creek leases, and as the party making the estimates as to reserves, must be held to have had superior knowledge as to the possibility that the reserves might prove insufficient.
Having concluded that the lack of reserves was foreseeable to Tomlinson, we also conclude that Tomlinson assumed the risk that such would prove to be the case. The trial court correctly found that the agreement contains no express assumption of such an obligation by Tomlinson, but as indicated above, this may be implied by the circumstances of a particular case. Besides the factor that the lack of reserves was foreseeable to Tomlinson, we note that the agreement provided that “the purchase of gas and the availability of gas to Buyer is the essence of this agreement” and that Tomlinson was to develop the field so as to “guarantee” the maximum deliverability under the agreement. We find these provisions, particularly the former, significant. Sunflower agreed to build a 4.5 mile pipeline and loan Tomlinson the cost of its gathering system, a total outlay of in excess of a half million dollars, based on Tomlinson’s assurances of adequate reserves.
Most cases with analogous facts are simply applications of the general rule that relief will be allowed absent one of the exceptions. The general rule is particularly applicable where the existence of a specific thing is necessary for the performance of the contract and that specific thing is destroyed or fails to come into existence. See Restatement (Second) of Contracts § 263 (1981). Thus, one who contracts to sell and deliver a crop of fruit, vegetables, grain, or hay then growing on a specific tract of land, or to be grown on such a tract within a specified growing season, is discharged from duty by the destruction of that crop without fault. Mercantile Co. v. Canning Co., 111 Kan. 68, 206 Pac. 337 (1922). This rule has been applied to an oil sales contract when the well which was the subject of the contract ceased to produce. North American Oil Co. v. Globe Pipe Line Co., 6 F.2d 564 (8th Cir. 1925). See also Housing Auth. v. E. Tenn. Etc. Co., 183 Va. 64, 31 S.E.2d 273 (1944), where it was held that a contract to supply natural gas which the parties contemplated would come from a particular field was excused when the field ceased to produce. It is of note that this was a jury case and that the instructions provided that the supplier must not have assumed the risk of failure of the field. The jury verdict for the supplier was affirmed.
Even when a specific thing is necessary for performance, however, the circumstances may demonstrate that a party has assumed the risk. 6 Corbin on Contracts § 1339 (1962), states:
“In any such case, however, the expressions of the parties, interpreted reasonably, may show that one party has assumed the whole risk, has warranted the possibility of performance or made himself an insurer. One who contracts to supply pasturage on specific land for a number of cattle may be found to have warranted that grass will grow and water run. [citing Berg v. Erickson, 234 F. 817 (8th Cir. 1916)]. One who promises to supply water for irrigation must look out for droughts and find the water at the favorable time and place; [citing Northern Irr. Co. v. Watkins, 183 S.W. 431 (Tex. Civ. App. 1916)]; it is the risk of drought, usual and unusual, that the promisee expects to eliminate. The water company may, of course, protect itself by a clause respecting drought and other causes beyond its control.” p. 398.
A reasonable interpretation of the contract in this case shows that it was the risk of obtaining a supply of natural gas, which the contract recognized as a “depleting natural resource” which Sunflower sought to eliminate. The fact that the agreement was specifically tied to the Stranger Creek field is significant in determining whether Tomlinson should be relieved. We gave effect to this limitation regarding Sunflower’s argument of subjective impossibility. In light of the other circumstances, however, we conclude that the fact the agreement was so limited does not in itself compel relief for Tomlinson.
This is not a case where a crop failed through some natural disaster or even where an oil or gas field which had been producing so as to meet contract requirements failed. In this case a contract was entered into to supply a specified quantity of gas before it was determined that that quantity existed and without any provision being made in the contract for such a contingency. See Gulf Oil Corp. v. F.P.C., 563 F.2d 588 (3rd Cir. 1977), cert. denied 434 U.S. 1062 (1978), where Gulf had contracted to sell gas to Texas Eastern. Upon discovering that it had vastly overestimated the reserves of the field from which it expected to draw most of the gas, it sought permission from the Federal Power Commission to increase the price it would charge under the contract, since to fulfill the contract, greater expense would be necessary. The FPC denied this request and the Third Circuit affirmed. The court relied mainly on its construction of the contract as expressly warranting delivery of the contract quantity of gas regardless of source. However, in response to an argument based on impossibility due to non-existence of the particular thing assumed necessary for the contract, the court stated that in cases where relief had been granted, the extreme economic hardship to the sellers resulted from forces of nature clearly beyond the sellers’ control, not an error on the part of the sellers in estimating their supplies. See also Moxham v. Sherwood Co. of West Virginia, 267 F. 781 (4th Cir. 1920), where it was held that a lease for a royalty on ores produced from the land, with a fixed minimum, cannot be set aside for mutual mistake as to the existence of ore, where the evidence showed that the lessee had caused his engineer to examine the property and signed the lease on the engineer’s report showing the existence of oil.
That Tomlinson assumed the risk reserves might be insufficient is, we think, demonstrated by (1) the language of the contract making purchase and availability of gas to Sunflower the essence of the agreement, (2) Tomlinson’s foreseeability that the reserves might not be sufficient, and (3) Tomlinson’s expertise and superior knowledge as to the possibility of inadequate reserves. This compels a finding that Tomlinson not be relieved of liability for its breach. To hold otherwise would mean an oil or gas producer could enter into a long term supply contract, borrow money on it, gamble on the extent of its supply, know the purchaser is relying and expending sums thereon, then escape with impunity when the supply proves inadequate. If the producer wishes to be relieved of liability where its reserves are unknown, appropriate language can be inserted in the contract. In this case, it was not.
Having determined that Tomlinson is not entitled to be relieved of its obligations under the contract under the points already discussed, we need not consider Sunflower’s fifth point as to equity.
The trial court found Sunflower damaged by Tomlinson in the amount of $2,614,011.13 from increased cost of natural gas for the first four years of the contract. It held damages for the balance of the contract to be speculative since the contract provided for renegotiation of price thereafter. The court’s finding is supported by the evidence and was not appealed from. It will not be disturbed.
The trial court also found Sunflower could not recover for its cost of the pipeline since it was figured into the damages for cost of gas. With this finding we do not agree. Only a four year period was utilized in the gas cost damages. However, the pipeline was built to serve a fifteen-year contract. We therefore hold Sunflower shall recover ll/15ths of the costs of the pipeline, amounting to $192,287.00.
The judgment is reversed and remanded with directions to enter judgment for plaintiff in the amount of $2,806,298.13 and costs. | [
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|
Elliott, J.:
Garst Seed Company (Garst) appeals the trial court’s decision that its security interest in a com crop was not properly perfected because the real estate description in the security agreement was not sufficient.
We affirm.
The facts are essentially uncontroverted.
Bob Wilson was a tenant farmer in Stanton County, leasing land from three sources: Loren Puyear, the Joe Montgomery Estate, and the Beckett Estate. Beginning in 1987, Collingwood Grain, Inc., (Collingwood) provided supplier financing for input items (fertilizer, fuel, chemicals, etc.), secured by perfected security interests in Wilson’s 1988 and 1989 growing crops.
Despite Collingwood’s help, Wilson experienced financial difficulties. In March of 1988, rather than filing bankruptcy, he entered into a workout agreement with Collingwood, Puyear, and Southwest Kansas National Bank (Bank).
Under the agreement, Puyear agreed to be the “white knight,” supplying Wilson with additional capital. Puyear took a security interest in Wilson’s crop and assigned this interest to Bank.
On April 12, 1989, Wilson purchased seed com from Garst. The seed com was not purchased with Puyear funds, but was to be paid for from the 1989 crop proceeds. Wilson signed a promissory note for $27,000, a security agreement, and a financing statement.
The validity of the security agreement is at issue in the present case.
In July 1989, Puyear terminated his lease with Wilson and the workout agreement was also terminated. On August 4, 1989, Garst filed the financing statement Wilson had signed in April. In November, Collingwood, Puyear, and the Bank divided the proceeds from Wilson’s 1989 crop in accordance with their prior agreement. Garst then filed the present suit, and Wilson filed for bankruptcy.
The trial court granted defendants’ motions for summary judgment, ruling that the land description in Garst’s security agreement was insufficient.
On appeal, no one claims the case was not ripe for summary adjudication; and we must read the record in a light most favorable to the party who defended against the motion. See Patterson v. Brouhard, 246 Kan. 700, 702, 792 P.2d 983 (1990).
Garst’s security agreement consisted of a printed form. Paragraph 2 provided:
“2. This agreement includes annual and perennial crops and products thereof growing or planted on the following described real property; either before or after harvest and all additions and substitutions therefor including the proceeds thereof; and such property is and will be located on the following described property in Stanton County, Kansas;
[space left blank]
“A. Landowner: If other than Debtor, the record owner of the land above. described is Loren Puyear.”
The financing statement described the real estate as follows:
“Stanton County, Kansas NW 7* 15-28-40, SE 74 34-28-40, NW 74 14-28-40, SW 74 23-28-40, S 7* 22-28-40, NE 74 3-29-40, All 27-28-40.”
Garst contends that although the security agreement does not give a full description of the land on which the com crop was growing, it is sufficient to perfect its security interest when combined with the real estate description contained in the financing statement. We disagree.
The Uniform Commercial Code provides that a security interest in growing crops is not enforceable against the debtor and does not attach unless the security agreement contains a “description of the land concerned.” K.S.A. 1991 Supp. 84-9-203(1). Similarly, the financing statement must contain a “description of the real estate concerned.” K.S.A. 84-9-402(1). A real estate description need not be a full legal description, but is sufficient if it “reasonably identifies what is described.” K.S.A. 84-9-110.
Most of the case law applying the “reasonable identification” test concerns financing statements. In general, a financing statement land description is sufficient if it contains the name of the landowner, the approximate number of acres involved, the county in which the land is located, and the approximate distance and direction of the farm from the nearest town. E.g., United States v. Collingwood Grain, Inc., 792 F.2d 972, 974-75 (10th Cir. 1986). See Chanute Production Credit Ass'n v. Weir Grain & Supply, Inc., 210 Kan. 181, 499 P.2d 517 (1972).
While the function of a real estate description in a security agreement is to grant a security interest, the criteria for sufficiency appear to be comparable. See U. S. v. Smoky Valley Bean, Inc., 673 F. Supp. 1551 (D. Kan. 1987).
In the present case, the real estate description in Garst’s security agreement does not meet the reasonable identification test. It gives only a county-wide location, leaves the description portion of the farm totally blank, and lists only one of Wilson’s landlords. A third party could not identify the land on which the corn crop was growing without further information.
The description in Garst’s financing statement would probably pass the reasonable identification test, but it cannot cure the defect in the security agreement. A security interest cannot be perfected until it attaches. K.S.A. 84-9-303. And a security interest cannot attach until the requirements of 84-9-203 are met. See In re Newman, 71 Bankr. 698, 699 (Bankr. D. Kan. 1987) (valid security agreement must contain words of grant); First Nat’l Bank of Gaylord v. Aubrey, 9 Kan. App. 2d 96, 98, 673 P.2d 448 (1983). We have found no authority for merging the two separate documents in order to satisfy the requirements of 84-9-203. Garst’s security interest in Wilson’s crops simply never attached. See C&H Farm Service v. Farmers Sav. Bank, 449 N.W.2d 866, 868-69 (Iowa 1989).
The trial court did not err in holding that Garst does not have an enforceable security interest in Wilson’s 1989 com crop.
Garst also argues that defendants’ conduct should affect the priorities established by K.S.A. 1991 Supp. 84-9-312 and/or should grant Garst an equitable lien in Wilson’s 1989 com crop.
The parties do not dispute that defendants had a perfected security interest in the 1989 crop and a contractual agreement to divide the proceeds of the crop among themselves. And while 84-9-312 sets priorities among conflicting security interests in the same collateral, because Garst did not have an enforceable security interest, there can be no conflict and the statute does not apply.
With respect to Garst’s argument for an equitable lien on the proceeds of Wilson’s 1989 com crop, the Official UCC Comment to K.S.A. 84-9-203 specifically rejects the theory of equitable liens. Informal security agreements may have been necessary in the past given the elaborate requirements of 19th century chattel mortgages. But since article 9 reduces formal requirements to a minimum, the “ancient learning” is no longer necessary. “More harm than good would result from allowing creditors to establish a secured status by parol evidence after they have neglected the simple formality of obtaining a signed writing.”
Garst failed to comply with the plain mandates of the UCC and, thus, is not a secured party. Garst is simply an unsecured creditor, entitled after proper judgment to enforce its claim against Wilson, assuming the debt has not been discharged in Wilson’s bankruptcy.
Defendants, on the other hand, complied with the Uniform Commercial Code and are properly perfected secured parties. Accordingly, they should be permitted to reap the priority benefits provided by article 9 of the Code.
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Rulon, J.:
Home State Bank, defendant, appeals the district court’s grant of summary judgment to Community National Bank, plaintiff, because Community National had a purchase money security interest in a planter purchased by Darrell Moyer. We affirm.
The primary issue for our consideration is whether K.S.A. 1991 Supp. 84-9-401(2) allows an improperly perfected purchase money secured creditor to obtain priority over a perfected secured creditor when that creditor acquires knowledge of the purchase money security interest only after it has perfected its own, security interest.
The undisputed findings of fact made by the district court are as follows:
Darrell D. Moyer and Community National executed a promissory note, security agreement, and financing statement. The loan proceeds of the promissory note were used to purchase a 1982 International Harvester planter described in the security agreement and financing statement. Community National held a purchase money security interest in the planter and attempted to perfect its interest by filing the financing statement with the Neosho County Register of Deeds on May 12, 1989, rather than with the Kansas Secretary of State. This filing was made in good faith.
Home State Bank held a prior perfected blanket security interest in Moyer s equipment by virtue of two promissory notes, a security agreement dated April 20, 1987, and a financing statement dated September 9, 1986, filed with the Secretary of State. Home State Bank was granted judgment on December 17, 1990, against Moyer for a total sum of $117,105.86. Home State was also granted a judgment foreclosing its security interest in the planter purchased with the loan from Community National. Pursuant to its judgment, Home State Bank sold the collateral securing its indebtedness.
Community National filed a financing statement covering its interest in the planter with the Secretary of State on January 8, 1991. The district court granted judgment in favor of Community National against Moyer for $5,776.82 and also issued an order allowing Community National to foreclose its security interest in the planter or the proceeds from its sale.
The district court found that although Community National’s first filing of the financing statement with the Neosho County Register of Deeds was improper because it was in the wrong place, it was effective pursuant to K.S.A. 1991 Supp. 84-9-401(2) against the competing prior perfected blanket security interest held by Home State Bank. The court’s rationale in awarding Community National priority was that Ray Withers, an officer of Home State Bank, had knowledge of the contents of Community National’s financing statement from a Credit Bulletin dated May 15, 1989, and a telephone discussion with Ron Sheddrick, a Community National officer, occurring the week of May 22, 1989. Because Home State Bank sold the planter on January 26, 1991, received proceeds of $4,450, and paid none to Community National, the district court granted Community National a judgment of $4,450 plus costs.
On appeal, Home State contends the trial court incorrectly interpreted K.S.Á. 1991 Supp. 84-9-401(2). An interpretation of a statute is a question of law of which this court has unlimited review. See Director of Taxation v. Kansas Krude Oil Reclaiming Co., 236 Kan. 450, 455, 691 P.2d 1303 (1984); Hutchinson Nat’l Bank & Tr. Co. v. Brown, 12 Kan. App. 2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988).
Although Home State perfected a security interest in the planter through an after-acquired property clause before Community National perfected its security interest in the same planter, all parties concede that if Community National properly perfected its interest, it has priority as a purchase money secured creditor. K.S.A. 1991 Supp. 84-9-312(4) states:
“(4) A purchase money security interest in collateral other than inventory has priority over a conflicting security interest in the same collateral or its proceeds if the purchase money security interest is perfected at the time the debtor receives possession of the collateral or within 20 days thereafter.”
It is also undisputed that because the planter was farm equipment, Community National’s financing statement regarding its purchase money security interest should have been filed with the Secretary of State pursuant to K.S.A. 1991 Supp. 84-9-401(l)(c). Instead, it was filed with the Register of Deeds of Neosho County. Community National argues its filing was still effective under K.S.A. 1991 Supp. 84-9-401(2), which states:
“(2) A filing which is made in good faith in an improper place or not in all of the places required by this section is nevertheless effective with regard to any collateral as to which the filing complied with the requirements of this article and is also effective with regard to collateral covered by the financing statement against any person who has knowledge of the contents of such financing statement.” (Emphasis added.)
There appear to be no Kansas cases on the relation of 84-9-401(2) to purchase money security interests (PMSI). The cases relied on by Home State Bank do not deal with PMSI except for Borg-Warner Acc. Corp. v. Wolfe City Nat. Bank, 544 S.W.2d 947, 951 (Tex. Civ. App. 1976). The collateral in Borg-Wamer was inventory. For a purchase money secured party (PMSP) to attain priority over a prior perfected secured party, the PMSP must perfect its PMSI and notify the prior perfected secured party. 544 S.W.2d at 950. The PMSP in Borg-Wamer failed to notify the prior perfected secured party. 544 S.W.2d at 951.
The PMSP in Borg-Wamer also did not file in the correct place. In response to the PMSP’s argument that § 9-401(2) of the UCC made its filing effective, the Texas Court of Civil Appeals stated:
“However, this section of the statute is not applicable to this case because Borg-Wamer had perfected a security interest long before Wolfe City [the PMSP] decided to make the loan to Nations, and therefore Borg-Wamer could not have had knowledge of the contents of Wolfe City’s financing statements prior to perfecting its own security interest.” 544 S.W.2d at 951.
In White & Summers, Uniform Commercial Code § 24-17 (3d ed. 1988), discussing § 9-401(2), there is nothing that indicates knowledge by a perfected secured party of an imperfect filing by a PMSP must be acquired before the secured party’s perfection of a security interest in the same collateral. Although the Texas court cited White & Summers, Uniform Commercial Code § 23-15 (1972) as support for its conclusion, this section does not discuss how § 9-401(2) relates to PMSI, nor the chronological order in which the perfected secured party’s perfection of its security interest and its acquisition of knowledge of an improperly filed PMSI must fall.
In Temporaries, Inc. v. Maryland Nat. Bank, 626 F. Supp. 1025 (D. Md. 1986), the PMSP misfiled its security interest after the non-PMSP had perfected its interest. Th,e court nonetheless found the PMSP’s filing effective pursuant to § 9-401(2).
Likewise, in In re Johnson, 28 Bankr. 292, 299 (Bankr. N.D. Ill. 1983), Case, the PMSP, improperly perfected its security interest after Joliet Bank had already perfected its security interest by filing a financing statement with an after-acquired property clause. The court found Case’s filing was effective pursuant to § 9-401(2). 28 Bankr. at 297.
As noted above, there is conflicting authority as to the application of § 9-401(2) to a PMSP who misfiles after another party has perfected a security interest. In the absence of statutory language to the contrary, we conclude the good faith misfiling exception in K.S.A. 1991 Supp. 84-9-401(2) applies to misfiled purchase money security interests regardless of whether the prior perfected secured party perfected its security interest before or after acquiring knowledge of the improperly perfected purchase money security interest.
As we understand, Home State argues the second part of K.S.A. 1991 Supp. 84-9-401(2) is only meant to protect those secured parties trying to protect more than one type of collateral in the same financing statement. Therefore, Community National should not be permitted to use 84-9-401(2) to save its financing statement, which only listed one type of collateral.
A fair reading of 84-9-401(2) tells us that if the financing statement attempts to perfect security interests in more than one type of collateral, and the statement is misfiled for some types of collateral, the security interests in the collateral for which the statement is properly filed are saved by the first part of the statute. White & Summers, Uniform Commercial Code § 24-17 (3d ed. 1988). The second part of the statute protects a security interest perfectéd by a financing statement filed in the wrong place, so long as the filing is in good faith and the other perfected secured party has knowledge of its contents.
Here the parties agree Home State had knowledge of the contents of Community National’s misfiled financing statement. Clearly the second part of 84-9-401(2) applies to the facts of this case.
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Lewis, J.:
The defendant appeals her conviction of driving while her driver’s license was suspended. Upon conviction, defendant was sentenced to one year in jail and fined $500. On review, we find that the Division of Motor Vehicles (DMV) failed to follow the express requirements of law in suspending defendant’s driver’s license, and we reverse her conviction..
Defendant’s driver’s license was suspended as a result of her arrest for DUI. Defendant refused to submit to a chemical test under K.S.A. 8-1002, and her license was suspended as provided by statute. Defendant then requested an administrative hearing under K.S.A. 8-1002(g). Defendant appeared at that administrative hearing in person and by an attorney. Apparently, issues were raised at the administrative hearing which could not be immediately resolved, and the hearing officer took the matter under advisement. Approximately three days later and in the absence of defendant or her attorney, the hearing officer made his decision and ruled against the defendant. Defendant was not aware of the hearing oificer’s ruling at the time it was made.
After the hearing officer ruled against the defendant, her driver’s license suspension was affirmed. The DMV then suspended her license for one year and mailed notice of the order of suspension to the defendant’s attorney.
The defendant denies knowledge of the administrative order suspending her license. Her attorney concedes by affidavit that he did not at any time advise her that a suspension order had been issued and received. Despite these denials, there is evidence in the record that defendant may have been aware that her license was suspended.
The same attorney later appeared on behalf of the defendant at a misdemeanor hearing wherein she was charged with driving while her license was suspended. The attorney entered a guilty plea on behalf of defendant to those charges. The defendant denies having any knowledge of these court proceedings, and there is no evidence that she did. The State does not dispute that she was not personally present at the court proceedings:
The defendant argues that her license suspension by the DMV was ineffective because of its failure to mail notice of suspension directly to defendant. We agree with defendant’s contentions in this regard.
K.S.A. 8-255(d) is controlling in this case, and reads in relevant part as follows: “Upon suspending, revoking or disqualifying the driving privileges of any person as authorized by this act, the division shall immediately notify the person in writing.’’ (Emphasis added.)
The statute is plain, clear, and unambiguous. It does not authorize service on anyone but the person whose license is suspended. It does not indicate that the DMV may or should notify such person; it says it “shall immediately” notify such person in writing. This is clearly a case of a mandatory command by the legislature. See Barnhart v. Kansas Dept. of Revenue, 243 Kan. 209, 212-13, 755 P.2d 1337 (1988).
The legislature has not only mandated written notice to the licensee, it has provided that the notice be sent to the last known mailing address furnished to the DMV by the licensee. In the matter now before this court, the State admits that no notice of suspension was mailed to the defendant and offers no excuse for the failure to follow the law. It only suggests that somehow the mailing to defendant’s attorney was sufficient compliance. This suggestion was apparently accepted by the trial court. We do not agree.
In State v. Jones, 231 Kan. 366, 368, 644 P.2d 464 (1982), the trial court held that the State had failed to show the defendant was guilty of driving while his license was suspended. The defendant had argued successfully to the trial court, as the defendant does here, that the State failed to show notice to the defendant of the driver’s license suspension and that such notice was essential to prove the charge of driving while his license was suspended. The State appealed from the trial court’s decision, and the Supreme Court affirmed the trial court, holding:
“In prosecutions for driving while a license is suspended, it is incumbent upon the State to show compliance with K.S.A. 8-255(5), which provides:
‘Upon suspending or revoking the license of any person as authorized by this act, the division immediately shall notify the licensee in writing. . . . ’ (Emphasis supplied.)
“When a driver’s license is revoked or suspended, a copy of the order of revocation or suspension, or a suitable written notice of that action, must be mailed to the last known official address of the licensee. The State is entitled to rely upon its record of all licensees’ addresses, and it is also entitled to rely upon the presumption that letters, sent by ordinary mail postage prepaid, are received by the addressee in the ordinary course of the mails. The use of certified mail, return receipt requested, would be preferable but is not required. Once the State has complied with the mandatory notice requirement of K.S.A. 8-255(b) by mailing, the presumption of receipt arises and is not rebuttable. Evidence of non-receipt may, however, be introduced by the accused in mitigation at time of sentencing.
“We hold (1) that the State must send a copy of the order of revocation or suspension or a written notice thereof to the licensee at the last known address according to the division’s records-, (2) that when written notice has been mailed, then, after reasonable time for mail delivery has expired, receipt is conclusively presumed; and (3) that in a prosecution under K.S.A. 1981 Supp. 8-262, the State need not prove actual receipt of the notice, actual knowledge of the revocation, or specific intent to violate the statute, by the licensee.” (Emphasis added.) 231 Kan. at 368.
In State v. Moffett, 240 Kan. 406, 728 P.2d 1330 (1986), the Supreme Court affirmed and clarified its decision in Jones. In Moffett, the court held that notice was sufficient if mailed to the last known address furnished to the department by the licensee.
It is clear that Jones and Moffett are controlling. The DMV is required to mail notice of suspension to the licensee. The failure to show that the notice was mailed as required by law is fatal to the charge of driving while the license is suspended.
The State argues that the mailing of notice to the defendant’s attorney is sufficient. We disagree. The statute unambiguously requires mailing to the licensee. There is no provision authorizing substituted service on any other person. This court will not engage in the legislative function of adding something to a statute which is not there. If the legislature had wished to authorize substituted service on a defendant’s attorney, it could have said so, and indeed it has said so in other instances. In the statute before this court, the legislature did not provide for substituted service, and such service does not satisfy the requirements of the statute. If the State wishes to make service on an attorney sufficient under the statute, it must resort to the legislature and not to this court for an amendment of the statute in question.
The very best that can be said is that, under K.S.A. 77-613(d), service upon parties to an agency proceeding who have attorneys “shall be made upon the parties to the agency proceeding and their attorneys of record, if any.” (Emphasis added.) This statute merely permits service upon an attorney. It does not authorize the agency in question to bypass the express provisions of 8-255(d) and not serve notice upon the party.
The argument of the State in this case amounts to a claim of substantial compliance. First of all, we do not believe that the doctrine is applicable to avoid the express requirements of the statute. K.S.A. 8-255(d) does not authorize service on a person’s attorney. It expressly mandates “immediate” notice to the licensee. We are not willing to render ineffective an express requirement by the legislature by employing the doctrine of “substantial compliance.”
In addition, we have held in Claus v. Kansas Dept. of Revenue, 16 Kan. App. 2d 12, 825 P.2d 172 (1991), that the doctrine of substantial compliance does not apply in cases of this nature. In that case, the defendant had attempted to appeal a one-year suspension of his driver’s license. He mailed the notice of appeal to “Kansas Department of Revenue, Division of Vehicles-Driver Control Bureau, P.O. Box 2744, Topeka, Kansas 66601-2744.” The Kansas Department of Revenue in that case candidly admitted that it had received the notice of appeal addressed in the manner indicated. However, the department argued that the only proper service under the statute was on the Secretary of Revenue. The defendant argued that his service “substantially complied” with the law and gave actual notice to the proper parties. We dismissed the appeal and said:
“KDR does not deny that it received actual notice. However, KDR argues proper service would be upon the Secretary of Revenue.
“K.S.A. 1990 Supp. 8-259 provides that review of driver’s license suspensions shall be in accord with the Act for Judicial Review and Civil Enforcement of Agency Actions. K.S.A. 77-601 et seq. K.S.A. 77-615(a) provides: ‘A petitioner for judicial review shall serve a copy of the petition in the manner provided by subsection (d) of K.S.A. 77-613 and amendments thereto upon the agency head or on any other person or persons designated by the agency head to receive service.’ (Emphasis added.) K.S.A. 77-613(d) provides in relevant part:
‘Service of an order, pleading or other matter shall be made upon the parties to the agency proceeding and their attorneys of record, if any, by delivering a copy of it to them or by mailing a copy of it to them at their last known addresses. Delivery of a copy of an order, pleading or other matter means handing it to the person being served or leaving it at that person’s principal place of business or residence with a person of suitable age and discretion who works or resides therein. Service shall be presumed if the presiding officer, or a person directed to make service by the presiding officer, makes a written certificate of service. Service by mail is complete upon mailing.’
“There are no provisions for ‘substantial compliance’ contained in the Act comparable to those provided in the Rules of Civil Procedure by K.S.A. 1990 Supp. 60-304. Pork Motel, Corp. v. Kansas Dept. of Health & Environment, 234 Kan. 374, 390, 673 P.2d 1126 (1983).
‘Chapter 60’s requirement that the civil procedure be liberally construed is not contained within Chapter 20. In addition, Chapter 20 does not provide, as does Chapter 60, that substantial compliance of service procedure will effect valid service if the party is made aware that an action or proceeding was pending in a specific court in which that party’s status or property is subject to being affected.’ 234 Kan. at 390.
“KDR argues the notice as addressed properly served only the Driver Control Bureau, a subdivision of the Kansas Department of Revenue, and was not proper service on the ‘agency head,’ who is the Secretary of Revenue. KDR avers that, while the Driver Control Bureau is located in the same building, it is on a different floor, is not part of the Secretary’s office, and does not report directly or indirectly to the Secretary.
“The language of the statutes is clear and unambiguous. We find service was improper and that the district court, and thus this court, has no jurisdiction over KDR.” 16 Kan. App. 2d at 13-14.
If service on the Kansas Department of Revenue did not perfect the appeal under the facts of Claus, the service in the instant matter cannot pass muster. The department of revenue would be well advised in the future to be aware of Claus in serving licensees with notice of driver’s license suspensions.
In this case, the defendant’s driver’s license was originally suspended by the police officer to whom she refused to submit to a chemical test. The administrative hearing she requested was one seeking to review the original order. There is no specific procedure mandated to govern these administrative hearings. We hold, therefore, that such a proceeding is governed by the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. As stated in Claus, there are no provisions for “substantial compliance” contained in that Act. Accordingly, we reject the argument of substantial compliance. The service of the notice of suspension on the defendant’s attorney was not authorized and was not service on the defendant, and the suspension of her license cannot stand.
Finally, we find no particular significance in the fact that the defendant may have known or “should have known” that her driver’s license had been suspended. This is a matter of some dispute in the record. Regardless, we consider her knowledge of the suspension to be basically irrelevant. The legislature required service of the notice of suspension on the licensee to complete the suspension process. The failure of the DMV to comply with the statutory process renders its attempted suspension of defendant’s license void as a matter of law. Actual knowledge of an ineffective suspension by the licensee does not render it valid. The law does not provide that the department shall only serve the licensee if it concludes she has no actual knowledge of its action. We do not intend to read any such exception into the statute.
The defendant’s conviction of driving while her license was suspended cannot survive the failure of the State of Kansas to show the required service of notice on her under K.S.A. 8-255(d). The defendant’s conviction is reversed.
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Brazil, J:
In a case involving the collection of defaulted student loans, Margaret A. Glenn-Healy appeals from the district court’s grant of summary judgment in favor of the Higher Education Assistance Foundation (HEAF). Glenn-Healy contends the district court erred in applying the federal statute of limitation, 20 U.S.C. § 1091a (1988) rather than the state statute, K.S.A. 60-511. Glenn-Healy also contends this action accrued at the time she failed to make the initial repayment. We affirm.
The facts are not in dispute. Between September 1981 and July 1983, Glenn-Healy executed five promissory notes to finance her law school education. Glenn-Healy obtained the loans through Union Bank and Trust Company (Union Bank) in Lincoln, Nebraska. Each of the loans was guaranteed by HEAF.
Each promissory note stated that the loans were subject to, and would be interpreted in accordance with, the Higher Education Act of 1965 20 U.S.C. § 1001 et seq. (1988) (Higher Education Act).
HEAF is a corporation that is authorized to guarantee student loans under an agreement with the Secretary of Education pursuant to 20 U.S.C. § 1078(c) (1988 and Supp. II 1990). Under that agreement, HEAF guaranteed and eventually was assigned Glenn-Healy’s loans from Union Bank.
Glenn-Healy graduated from law school in May 1984 and has failed to make payments on any of the five notes, either to the original lender (Union Bank) or to HEAF. Her first payment on each note would have been due and payable to Union Bank on
or before the dates indicated below:
Note 1 dated September 29, 1981 ($5,000) due December 1, 1984
Note 2 dated May 10, 1982 ($5,000) due December 1, 1984
Note 3 dated March 21, 1983 ($5,000) due December 1, 1984
Note 4 dated November 22, 1982 ($3,000) due August 1, 1984
Note 5 dated July 8, 1983 ($3,000) due August 1, 1984
Glenn-Healy defaulted on the loans from Union Bank. The promissory notes were then assigned by Union Bank to HEAF pursuant to HEAF’s guaranty agreement with Union Bank. Notes 1, 2, and 3 were assigned to HEAF April 15, 1986. Notes 4 and 5 were assigned to HEAF April 21, 1986. Glenn-Healy failed to pay her obligations due under the promissory notes despite HEAF’s demand for payment.
On January 14, 1991, HEAF filed suit against Glenn-Healy on Notes 1, 2, and 3. On February 19, 1991, HEAF filed two more suits against Glenn-Healy on Notes 4 and 5. The foregoing three suits were consolidated for trial.
HEAF moved for summary judgment on all the notes. GlennHealy contended that HEAF’s claims were barred by the Kansas five-year statute of limitations. HEAF contended that the six-year federal statute of limitations applied and that the statute did not begin to run until HEAF took an assignment of the promissory notes.
The district court granted HEAF’s motion for summary judgment. The court determined that the suits were governed by the six-year federal statute of limitations, 20 U.S.C. 1091a(a)(2). The court specifically found that the federal statute superseded the state statute of limitations. The court also determined HEAF’s action accrued when HEAF took the assignment and reimbursed Union Bank. Because HEAF’s petitions were filed within six years of taking the assignment, HEAF’s suits were not time barred.
Glenn-Healy timely appeals.
The promissory notes signed by Glenn-Healy stated that the loans were subject to and would be interpreted in accordance with the Higher Education Act of 1965, 20 U.S.C. § 1001 et seq. The following amendment to 20 U.S.C. § 1091a(a) was enacted on April 9, 1991:
“(a) AMENDMENT. — Section 484A(a) of the Act (20 U.S.C. 1091a(a)) is amended to read as follows:
(a) IN GENERAL. — (1) It is the purpose of this subsection to ensure that obligations to repay loans and grant overpayments are enforced without regard to any Federal, or State . . . limitation on the period within which debts may be enforced.
(2) Notwithstanding any other provision of statute . . ., no limitation shall terminate the period within which suit may be filed, a judgment may be enforced ... or other action initiated or taken by—
(B) a guaranty agency that has an agreement with the Secretary [of Education] under section [1078(c)] . . .
(c) EFFECTIVE DATE. — The amendments made by this section shall be effective as if enacted by the Consolidated Omnibus Budget Reconciliation Act of 1985 (Public Law 99-272), and shall apply to any actions pending on or after the date of enactment of the Higher Education Technical Amendments of 1991 that are brought before November 15, 1992.” (Emphasis added.) Higher Education Technical Amendments of 1991. Pub. L. No. 102-26, 105 Stat. 124-25.
The doctrine of federal preemption arises from the Supremacy Clause of the United States Constitution: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the . . . Laws of any State to the Contrary notwithstanding.” U.S. Const., Art. VI, cl. 2.
The 1991 amendment to 20 U.S.C. § 1091a(a)(2) explicitly precludes application of a state statute of limitations on the period within which suit may be filed by an entity like HEAF. It specifically states that the section is effective as if enacted by the Consolidated Omnibus Budget Reconciliation Act of 1985 and applies to any action “pending on or after the date of enactment [April 9, 1991] . . . that are brought before November 15, 1992.” Higher Education Technical Amendments of 1991, Pub. L. No. 102-26, 105 Stat. 125.
HEAF filed this case January 14, 1991. HEAF’s motion for summary judgment was filed May 2, 1991. The trial court’s journal entry was filed September 20, 1991. This case was pending on or after the date of enactment (April 9, 1991) of the amendment, consequently, the amendment applies. K.S.A. 60-511 does not apply here and no statute of limitations, federal or state, can terminate the period within which HEAF may file suit against Glenn-Healy. See State of N.Y. Higher Educ. v. Starr, 179 App. Div. 2d 992, 579 N.Y.S.2d 210 (1992).
Although the trial court ruled that the six-year statute of limitations found in the pre-1991 version of 20 U.S.C. § 1091a had not expired (and that holding appears correct), there is no reason to examine the court’s rationale in light of the April 1991 amendments to 20 U.S.C. § 1091a.
Finally, in her reply brief, Glenn-Healy argues that HEAF failed to raise at the trial level: (1) the Supremacy Clause and/ or preemption issue; and (2) the applicability of the 1991 amendment to 20 U.S.C. § 1091a.
Generally, an issue not raised before the trial court may not be raised for the first time on appeal unless the newly asserted argument involves only a legal issue arising on proven or admitted facts. Taco Bell v. City of Mission, 234 Kan. 879, Syl. ¶ 1, 678 P.2d 133 (1984). In the present case, whether or not these issues were raised at the trial level, they can and should be considered by this court. They involved only legal issues and there was no dispute as to any material fact.
Affirmed. | [
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Pierron, J.:
Francis Wishteyah (petitioner-appellant) appeals the dismissal of his petition for a writ of habeas corpus, which he filed pursuant to K.S.A. 60-1501. Wishteyah contends the Kansas Parole Board’s implementation, subsequent to his conviction and incarceration, of conditional release policies constitutes a violation of the -ex post facto clause of Article I, Section 10 of the United States Constitution.
The facts are not in dispute and will be briefly summarized here.
In 1975, Wishteyah was convicted of aggravated battery and burglary. He was sentenced to a controlling term of 8 to 30 years. At the time Wishteyah committed the crimes, the Kansas Parole Board had an unwritten policy regarding conditions placed upon individuals released from prison in accord with K.S.A. 22-3718. Apparently, that unwritten policy only required released individuals to “not violate” state or federal law. The parties stipulated that the foregoing policy changed in 1984. The revised policy placed conditions and requirements on Wishteyah regarding: travel, owning of weapons, use of narcotics and alcohol, associating with others engaged in illegal activity, employment, education, and counseling or aftercare.
Wishteyah was conditionally released from prison June 19, 1991. The Kansas Parole Board, on July 31, 1991, revoked Wishteyah’s conditional release because he had violated certain conditions of his release. Specifically, Wishteyah associated with individuals he was prohibited from seeing, failed to follow aftercare recommendations, and failed to abstain from consuming alcoholic beverages.
Wishteyah filed a petition for a writ of habeas corpus challenging the Board’s revocation of his release. The district court dismissed the petition. The court adopted the Board’s findings of facts and conclusions of law. The court agreed that the Board’s change in policy did not violate the United States Constitution ex post facto clause because the revisions did not apply retrospectively to conduct occurring before the imposition of the conditions.
Wishteyah timely appeals.
Wishteyah contends the revised policy imposed by the Board violates the ex post facto clause. Specifically, Wishteyah contends the revised conditions apply retrospectively because they apply to event(s) occurring before their enactment, that is, they apply to the crimes for which Wishteyah was convicted and incarcerated.
The Board contends the revised policy applied only to conduct committed after the revision occurred and, consequently, is not unconstitutional.
This court has recently examined the elements required to be present for a criminal law to violate the ex post facto clause.
“The United States Constitution prohibits the legislative enactment of any ex post facto law. U.S. Const., art. I, § 10. Two critical elements must be present for a criminal or penal law to be ex post facto: It must be retro spective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it. A criminal law disadvantages the offender if it punishes an act not punishable when committed, imposes additional punishment to that then prescribed, aggravates the crime, or alters- the legal rules of evidence." Lamb v. Kansas Parole Board, 15 Kan. App. 2d 606, Syl. ¶ 8, 812 P.2d 761 (1991).
The precise issue Wishteyah raises has not been addressed by the Kansas appellate courts. The California Court of Appeal has examined a very similar issue, however, and its decision appears instructive. In In re LeDay, 177 Cal. App. 3d 461, 221 Cal. Rptr. 398 (1985), cert. denied 478 U.S. 1008 (1986), LeDay sought a writ of habeas corpus, contending that the extension of his re-commitment to prison as a parole violator under a recently revised provision of the State penal code was an invalid ex post facto punishment. Until January 1984, the statute at issue had provided that confinement based on revocation of parole could not exceed 12 months. That provision was amended in 1984, allowing the parole board to extend confinement based on revocation of parole for a maximum of an additional 12 months for “subsequent acts of misconduct committed by the parolee while confined pursuant to that parole revocation.” 177 Cal. App. 3d at 462-63.
The California court employed the same test articulated by this court in Lamb v. Kansas Parole Board. The California court found that LeDay was disadvantaged, in the requisite sense, by the amendment, but determined that the amendment was not applied to LeDay retrospectively. The court ruled that the misconduct for which LeDay’s term was extended occurred after the effective date of the amendment.
The court rejected LeDay’s argument that the relevant inquiry is whether “ ‘the provision attaches legal consequences to a crime committed before the law took effect’ (citation omitted) and that for this purpose the ‘crime’ is not his new misconduct but rather the crime for which he was initially committed to prison.” 177 Cal. App. 3d at 464.
Likewise, in the present case, the actions for which Wishteyah’s conditional release was revoked occurred after the Board had revised its policy.
It se.ems clear Wishteyah was aware that future misconduct would result in his return to prison. Wishteyah signed the doc ument listing the conditions under which his release was granted. Like LeDay, the conditions did not apply retrospectively to Wishteyah’s previous conduct. The conditions applied only to Wishteyah’s future conduct.
Under the rationale found in Lamb and LeDay, it is apparent the court correctly dismissed Wishteyah’s petition.
The Board raised additional arguments in rebuttal to Wishteyah’s contention. Due to our approval of the Lamb rationale, we need not reach those arguments.
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Pierron, J.:
This is the proposed patient’s appeal from an order of the district court ordering him into treatment at Osawatomie State Hospital pursuant to K.S.A. 59-2901 et seq., “The Treatment Act For Mentally 111 Persons.”
The proposed patient, James K. Albright, was ordered into treatment at Osawatomie State Hospital after a jury found he was a mentally ill person and likely to cause harm to himself or others.
Albright, a 33-year-old male, has suffered from schizophrenia since 1985. He has been treated for the condition a number of times. In May 1991, he was released from C.P.C. College Meadows, a psychiatric hospital in Lenexa, Kansas, where he was being treated. Within three days of his release, Albright stopped taking his prescribed medication and refused to continue any medical treatment.
Albright smashed his stereo with a sledgehammer to prevent rock-n-roll music from being played on it, believing that such music was demonically inspired. He spent much time reading the Bible and other religious writings and listening to religious tapes. On August 18, 1991, his mother, Ivoree Albright, tried to coax Albright to come back to her home, where he resided, after finding him walking in the street in his stocking feet. On this occasion, Albright slapped his mother.
Two days later, on August 20, 1991, Ivoree Albright filed a petition alleging James Albright to be a mentally ill person. On September 9, 1991, a hearing was conducted. Evidence of the incident in the street on August 18 was admitted, as was testimony that Albright hears voices that he claims to be those of the Holy Spirit.
The jury also heard evidence that on May 4, 1991, Albright slapped his aunt as she attempted to persuade him to eat his food rather thán read his Bible. Neither Albright’s mother nor his aunt claim serious injury, and no other evidence of violent behavior or threats of violent behavior was presented.
A staff psychiatrist from Osawatomie State Hospital testified at trial that Albright suffered from paranoid schizophrenia; that Al-bright was unable to engage in a rational decision-making process regarding treatment by reason of his severe mental disorder; and that he was likely to cause harm to himself or others because, without medication, his condition would deteriorate and he could do harm given his past “assaultive behavior.” The doctor additionally testified that without treatment, Albright’s condition would deteriorate and he would reach the point where he would be unable to care for himself. He concluded that Albright was in need of treatment and that the only appropriate treatment was in the restrictive inpatient environment of a psychiatric hospital.
At the conclusion of the trial, the jury found Albright to be a mentally ill person pursuant to K.S.A. 59-2901 et seq., and the court ordered him into treatment. Albright appeals from that finding.
The two issues on appeal are (1) whether the definition of “mentally ill person” contained in K.S.A. 1991 Supp. 59-2902(h), and the subsidiary definitions of terms contained therein, are overbroad and violative of the Fourth and Fourteenth Amendments to the Constitution of the United States and (2) whether the district court erred in refusing Albright’s requested instructions which, he alleges, would have effectively removed the allegedly unconstitutional nature of the instructions.
At the outset, we note Albright does not raise on appeal the sufficiency of evidence at trial. This appeal.is based solely on the constitutionality of the statute on its face and as it was applied to him.
In City of Baxter Springs v. Bryant, 226 Kan. 383, 598 P.2d 1051 (1979), the standard of review in cases concerning the constitutionality of a statute is set forth as follows:
“The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution.” Syl. ¶ 1.
“In determining constitutionality, it is the court’s duty to uphold a statute under attack rather than defeat it and, if there is any reasonable way to construe the statute as constitutionally valid, that should be done.” Syl. ¶ 2.
“Statutes are not stricken down unless the infringement of the superior law is clear beyond substantial doubt.” Syl. ¶ 3.
“The propriety, wisdom, necessity and expedience of legislation are exclusively matters for legislative determination and courts will not invalidate laws, otherwise constitutional, because the members of the courts do not consider the statute in the public interest of the state, since, necessarily, what the views of members of the court may be upon the subject is wholly immaterial and it is not the province nor the right of the courts to determine the wisdom of legislation touching the public interest as that is a legislative function with which the courts cannot interfere.” Syl. ¶ 4.
See also In re Jones, 228 Kan. 90, 95, 612 P.2d 1211 (1980) (statute providing for mandatory commitment of insanity acquitees not violative of due process just because it failed to provide for a separate hearing to determine present mental condition).
In addition, the Kansas Supreme Court has noted that it is its duty to “construe a statute in such a manner that it is constitutional if the same can be done within the apparent intent of the legislature in passing the statute. To accomplish this purpose the court may read the necessary judicial requirements into the statute.” State v. Durrant, 244 Kan. 522, 534, 769 P.2d 1174, cert. denied 492 U.S. 923 (1989). See State v. Eaton, 244 Kan. 370, 378-79, 769 P.2d 1157 (1989).
Albright claims that certain definitions in the Act at issue here are unconstitutional. K.S.A. 1991 Supp; 59-2902(h) defines a “mentally ill person” as any person who:
“(I) Is suffering from a severe mental disorder to the extent that such person is in need of treatment;
“(2) lacks capacity to make an informed decision concerning treatment; and
“(3) is likely to cause harm to self or others.”
Abright basically challenges the constitutionality of the definition of subsection (3) above. Section (g) states that “[ljikely to cause harm to self or others” means the person:
“(I) Is. likely, in the reasonably foreseeable future, to cause substantial physical injury or physical abuse to self or others or substantial damage to another’s property, as evidenced by behavior causing, attempting or threatening such injury, abuse or damage; or
. “(2) is substantially unable, except for reason of indigency, to provide for any of the person’s basic needs, such as food, clothing, shelter, health or safety causing a substantial deterioration of the person’s ability to function on the person’s own.”
Albright alleges the provisions under subsection (g)(1) are unconstitutional as they are violative of due process on two grounds: (1) Due process requires a showing of immediate or present danger; and (2) due process requires a showing of recent overt act or threat as a basis for concluding danger exists. Specifically, he challenges the wording “in the reasonably foreseeable future” since it allows commitment without a showing that the proposed patient is a present danger to himself or to others. Additionally, he claims the wording “as evidenced by behavior causing, attempting or threatening such injury, abuse or damage” is violative of due process as it purports to take into consideration acts that are not recent or overt.
. On the other hand, the State contends that in drafting the statute the legislature recognized the very nature of mental illness and the prevention of harm to both society and to a proposed patient requires looking not only at the present situation, but the future. The State argues the legislature intended for the finder of fact to make a judgment as to what is likely to happen in the reasonably foreseeable future.
A. “Imminent” or “Present” Danger
■ In support of his argument that the portion of the statute at issue here is unconstitutional, Albright cites to Suzuki v. Yuen, 617 F.2d 173 (9th Cir. 1980), where the Ninth Circuit Court of Appeals declared the Hawaii statutory procedure for the involuntary commitment of mental patients unconstitutional. The Su zulú court cited a leading case, Lessard v. Schmidt, 349 F. Supp. 1078, (E.D. Wis. 1972), vacated and remanded for more specific order 414 U.S. 473 (1974), order on remand 379 F. Supp: 1376 (D.C. 1974), vacated and remanded on other grounds 421 U.S. 957 (1975), order reinstated on remand 413 F. Supp. 1318 (1976), for the proposition that “[t]he proper standard is that which requires a finding of imminent and substantial danger as evidenced by a recent overt act, attempt or threat.” 617 F.2d at 178.
Noting that the Hawaii statute expressly required that there be imminent danger to property, but not imminent danger to self or others, for involuntary commitment, the Suzuki court said:
“We agree that the danger must be imminent to justify involuntary commitment. The legislature knew how to require imminence when it wanted to. . . .
“Because it is unconstitutional to commit one who does not pose an imminent danger, the statute as presently worded is unconstitutional.” 617 F.2d at 178.
Not all courts, however, are in accord with Suzuki. For example, in In re Harris, 98 Wash. 2d 276, 282, 654 P.2d 109 (1982), the Supreme Court of Washington said, “[W]e do not feel ‘imminent’ danger is required as a condition of involuntary commitment.” The court further explained it preferred the view that involuntary commitment merely “requires a showing that the potential for doing harm is ‘great enough to justify such a massive curtailment of liberty.’ ” Harris, 98 Wash. 2d at 283 (citing Humphrey v. Cady, 405 U.S. 504, 509, 31 L. Ed. 2d 394, 92 S. Ct. 1048 [1972]).
The Harris court noted that while many courts require a substantial risk of danger to justify involuntary commitment, not all courts require a showing of “imminence.” 98 Wash. 2d at 283 (citing Stamus v. Leonhardt, 414 F. Supp. 439, 451 [S.D. Iowa 1976] [“pose a serious threat to themselves or others”]; Doremus v. Farrell, 407 F. Supp. 509, 515 [D. Neb. 1975] [“poses a serious threat of substantial harm to himself or others”]; and Lynch v. Baxley, 386 F. Supp. 378, 391 [M.D. Ala. 1974] [likelihood of inflicting serious harm on himself or on others”]).
The West Virginia Supreme Court in Hatcher v. Wachtel, 165 W. Va. 489, 269 S.E.2d 849 (1980), also rejected the proposition in Suzuki that commitment be accompanied by a “present danger.” The court said:
“ ‘Commitment requires that there be a substantial risk of dangerous conduct within the reasonably foreseeable future. ... It is not sufficient that the state establish a possibility that defendant might commit some dangerous acts at some time in the indefinite future. The risk of danger, a product of the likelihood of such conduct and the degree of harm which may ensue, must be substantial within the reasonably foreseeable future. . . .
“ ‘A defendant may be dangerous in only certain types of situations or in connection with relationships with certain individuals. An evaluation of dangerousness in such cases must take into account the likelihood that defendant will be exposed to such situations or come into contact with such individuals.’ ” Hatcher, 165 W. Va. at 492 (citing State v. Krol, 68 N.J. 236, 260-61, 344 A.2d 289 [1975]).
The failure of these courts to adopt the reasoning in Suzuki dealing with “imminence” might be due to the varying states’ choices in determining the degree of danger that it desires to make a part of its statutory scheme. Although it rejected the reasoning in Suzuki, the Harris court stated that Suzuki’s requirement of imminence is a “valid constitutional concern for establishing a high standard of danger where the potential deprivation of liberty is great.” Harris, 98 Wash. 2d at 283.
In essence, Albright urges this court to adopt the Suzuki higher standard of danger as part of this State’s law for the commitment of mentally ill persons. The statutory provision involved, 59-2902, has undergone many changes in the past 15 years. Amendments made in 1976 provided the higher standard for which Albright argues. Those amendments made the following changes:
“(1) A person who was merely dangerous to property was no longer considered a ‘mentally ill person’; (2) the old definition of ‘mentally ill person’ included a person ‘who . . . probably will become dangerous . . .’, the new definition deletes the term probably will become’ and required a finding that the person is presently dangerous.” Note, Senate Bill 26 — Mental Patients’ Bill of Rights, 16 Washburn L.J. 149, 150 (1976).
In 1986, the legislature once again amended the statute, in essence going in the opposite direction of the 1976 amendments. The legislature reinserted language referring to damage to property as well as the language at issue here: that “likely to cause harm to self or others” means a person who may cause harm “in the reasonably foreseeable future.” L. 1986, ch. 211, § 2. According to Albright, the legislature removed the mandate that before a civil commitment could take place, the proposed patient must be a present danger to self or others.
After the 1976 amendments, which provided for a higher standard of dangerousness, but before the 1986 amendments providing for a lower standard, this court decided In re Gatson, 3 Kan. App. 2d 265, 593 P.2d 423 (1979). In Gatson, this court construed the 1976 amendments to the statute and found that an involuntary commitment must be accompanied by a present danger:
“[W]e agree with appellant that a finding of present dangerousness to self or others, coupled with a finding of mental impairment, is required before treatment may be ordered. Although the determination will of necessity be on a case-by-case method, we believe a showing of present dangerousness will normally require evidence of a recent act, attempt, threat or omission of a serious nature. ” (Emphasis added.) 3 Kan. App. 2d at 267.
Gatson, then, seems to have adopted the same higher standard of danger as Suzuki in the involuntary commitment of a mentally ill person. It did so even in the absence of the express language (“present danger”, “overt act“) in the statute. Gatson required both present dangerousness and a recent overt act of a serious nature. By virtue of this language, this court seemed to have adopted the higher standard of danger urged by Albright. The present statute, however, does not expressly require a showing of present danger or a recent overt act. It, therefore, appears that the legislature adopted the Harris lower standard of danger when it made the 1986 amendments. The present language would not seem to support appellant’s interpretation of requiring a showing of imminent or present danger. Gatson was based on the 1976 language which has been superseded by the 1986 language.
B. “Recent” or “Overt” Act
Albright additionally alleges that the statute as it reads now does not require a showing of a recent overt act and is, therefore, unconstitutional. Specifically, he argues that the phrase “as evidenced by behavior causing, attempting or threatening such injury, abuse or damage,” is subject to the same criticism as the phrase “in the reasonably foreseeable future” since it does not require a finding of immediacy.
In support of this contention, Albright cites to Lessard v. Schmidt, 349 F. Supp. at 1093, which states: “[Civil confinement can be justified in some cases if . . . dangerousness is based upon a finding of a recent overt act, attempt or threat to do substantial harm to oneself or another.”
Many courts, in fact, have required proof of “a recent overt act” to justify a finding of dangerousness. See Stamus v. Leonhardt, 414 F. Supp. at 451; Lynch v. Baxley, 386 F. Supp. at 391. On the other hand, at least one court has held that a statute which does not include an overt act requirement still meets minimum due process standards. Project Release v. Prevost, 722 F.2d 960, 973-74 (2d Cir. 1983).
The Washington statute that was discussed in In re Harris did not expressly require proof of a recent overt act for commitment. The court, however, recognized that “evidence must be recent to be meaningful.” Harris, 98 Wash. 2d at 284. It thus interpreted the statute as requiring a showing of substantial risk of physical harm, as evidenced by a recent overt act.
Likewise, this court in Gatson adopted this stance. In Gatson, this court noted that the Nebraska, Iowa, and Hawaii involuntary commitment statutes have been held unconstitutional since they did not require a finding of dangerousness as evidenced by a recent overt act, attempt, or threat. This court was satisfied that the legislature crafted the 1976 amendments out of a general concern for the result in those cases. We thus concluded that present dangerousness is normally evidenced by a “recent act, attempt, threat or omission of a serious nature.” Gatson, 3 Kan. App. 2d at 267. As stated above, this decision was based on the 1976 language which has been superseded.
In summary, Albright’s argument basically revolves around the conflicts inherent in this court’s 1979 holding in Gatson and the legislature’s 1986 amendments. The dangerousness standard in the 1976 statute and Gatson is a high standard. The legislature then changed the statute to require a lower standard of danger be shown.
We find the present statute to be constitutional based on Harris and the other cases cited above which have held similarly drafted statutes to comport with due process. This is an extremely difficult area touching on sensitive and important issues. Our legislature experimented with stricter standards for involuntary treatment and arrived at the present rules after 10 years’ experience. Reasonable minds could differ on the approach but it is assuredly constitutional.
Since the statutory approach is constitutional, we need not deal with defendant’s proposed instruction to supply a constitutional interpretation.
The evidence presented at trial was sufficient to satisfy the requirements of the present statute. The finding of the jury and the order for treatment are affirmed. | [
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Lewis, J.:
The defendant appeals his conviction for felony possession of marijuana. This appeal involves the enhancement of the crime for which the defendant was sentenced from a class A misdemeanor to a class D felony. The defendant’s sentence was also enhanced under the Habitual Criminal Act. The defendant appeals his conviction and the sentence imposed. We affirm the conviction, vacate the sentence, and remand for resentencing.
The defendant was living in a trailer house in rural Meade County. On the date of his arrest, Meade County Sheriff’s Deputies had gone to the defendant’s home, seeking to arrest him on a parole violation. Upon arrival at the trailer house, the sheriff’s deputies found not only the defendant, but also his brother James, who was wanted for parole violation.
When the sheriff’s deputies arrived at the defendant’s home, they encountered a hostile and angry James. His eyes were watery and his speech was slurred. The defendant, on the other hand, was calm and cooperative throughout the entire affair.
The sheriff’s deputies testified that, after they gained entry to the trailer, they detected the smell of marijuana. They then returned to the courthouse, where they obtained a search warrant to search the defendant’s trailer for drugs and paraphernalia.
The search warrant was executed and a search was conducted of the defendant’s trailer. This search yielded a pipe, a hand-rolled marijuana cigarette, and a hemostat. The cigarette was found under a couch in the defendant’s living room. The pipe was found, along with some rolling papers, in a basket on a table next to that couch. The hemostat was in a dresser drawer in the defendant’s bedroom.
The pipe and cigarette were both submitted to the KBI laboratory for analysis. That analysis found that both items contained traces of tetrahydrocannabinol (THC), which is the active ingredient of marijuana. The hemostat seized from the trailer was not analyzed.
The charges lodged against the defendant were resolved after a trial by jury. At trial, the defendant and his brother James both denied smoking marijuana on the evening of their arrest.- They explained away the odor of marijuana by testifying the aroma was that of- the pork chop dinner which was being prepared. The defendant denied any knowledge that any of the items seized were located in his home. He admitted that he had smoked marijuana but not for the last six or seven months. Upon further examination, the defendant conceded that he had several prior drug convictions.
The defendant’s other brother, E.C., also testified at trial. E.C. asserted that the pipe and cigarette found in the defendant’s trailer belonged to him. He said that he had access to the trailer and had left the offending items without the defendant’s knowledge. E.C. also conceded that, unlike the defendant and James, he had no prior felony convictions and that, if convicted of possession of marijuana, he would not likely receive a heavy sentence. It is apparent from the jury verdict in this case that the jury chose not to believe the testimony of E.C.
The defendant appeals, raising several alleged errors concerning his conviction and sentence.
SUFFICIENCY OF THE EVIDENCE
The defendant’s first argument is that the evidence presented was not sufficient to support his conviction. We have reviewed the record in this case and conclude that the defendant’s arguments in this regard have no merit.
The evidence against the defendant was almost totally circumstantial. In addition, the evidence was conflicting. Under these circumstances, the jury was the best judge of what the evidence did or did not show. The jury chose not to believe the defendant and his witnesses and resolved the conflict in the evidence in favor of the State. The jury had every right to do so, and we affirm its decision in that regard.
When the sufficiency of the evidence is challenged in a criminal case, the standard of review for this court is whether, after review of all of the evidence 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. Evans, 251 Kan. 132, 135-36, 834 P.2d 335 (1992) (following State v. Graham, 247 Kan. 388, Syl. ¶ 5, 799 P.2d 1003 [1990]).
The essential elements of the crime of possession of marijuana are the following: (1) that the defendant possessed the marijuana, and (2) that he did so intentionally. Possession of a controlled substance requires that one have control over the substance with knowledge of and the intent to have such control. State v. Flinchpaugh, 232 Kan. 831, Syl. ¶ 1, 659 P.2d 208 (1983).
In this case, the defendant was not shown to have been in exclusive possession of the premises from which evidence was seized. Under these circumstances, the following rule applies:
“When a defendant is in nonexclusive possession of the premises on which illegal drugs are found, there must be other incriminating circumstances linking the defendant to the drugs. “Whether such circumstances are sufficient to give rise to an inference of possession is a question for the jury.’ State v. Anthony, 242 Kan. 493, 502, 749 P.2d 37 (1988).” State v. Perry, 16 Kan. App. 2d 150, 156, 823 P.2d 804 (1991).
Over the years, the courts have determined which incriminating factors and circumstances can be used to support an inference that a defendant is in possession of drugs. These include a defendant’s prior participation in the sale of drugs, his or her use of illegal drugs and narcotics, his or her proximity to the area where drugs are found, whether the drugs are in plain view, incriminating statements of the defendant, suspicious behavior, and the proximity of the defendant’s possessions to the drugs. State v. Cruz, 15 Kan. App. 2d 476, 489, 809 P.2d 1233, rev. denied 249 Kan. 777 (1991) (following State v. Faulkner, 220 Kan. 153, 551 P.2d 1247 [1976], and State v. Bullocks, 2 Kan. App. 2d 48, 574 P.2d 243, rev. denied 225 Kan. 846 [1978]).
In this case, a number of those incriminating factors were present and support the defendant’s conviction. When the arresting officers entered the defendant’s trailer, they detected the smell of marijuana. The deputies initially observed the defendant in the same room where the pipe and marijuana cigarette were later discovered. The pipe was discovered, along with rolling papers, in a basket which was admittedly the defendant’s. The deputies recovered the hemostat from the defendant’s dresser drawer. The hemostat is an item which would fall under the description of drug paraphernalia, and the defendant’s only explanation for possessing that instrument was that it looked attractive to him. In addition to these factors, the defendant admitted to several prior drug convictions and admitted prior use of marijuana.
In the instant matter, we hold that a rational factfinder could find the defendant guilty beyond a reasonable doubt of possession of marijuana on the evidence submitted by the State.
JURY INSTRUCTIONS
The defendant asserts that the trial court failed to properly instruct the jury on the crime of possession of marijuana. In the face of that assertion, the defendant admits that he failed to raise his objections at trial. On appeal, a party may not assert as error the failure to give an instruction unless he or she objected to the failure to give that instruction, stating specific grounds for the objection. Absent an objection, we may reverse only if the trial court’s failure to give the instruction was clearly erroneous. The failure to give an instruction is clearly erroneous only if we can reach a firm conclusion that, if the trial error had not occurred, a real possibility exists that the jury would have returned a different verdict. State v. Perkins, 248 Kan. 760, Syl. ¶ 8, 811 P.2d 1142 (1991). In the instant matter, the defendant’s failure to object means that we apply the “clearly erroneous” rule to his appellate argument.
The defendant contends that, based upon the instructions given by the trial court, the jury could have found that he possessed marijuana without finding that he intentionally and knowingly exercised a restraining or directing influence over the drug. We have reviewed the record and conclude that the defendant’s argument is without merit. The trial court instructed the jury' that, in order to convict the defendant of possession, the jury would have to conclude that he intentionally “possessed or had under his control a hallucinogenic drug known as marijuana or tetrahydrocannabinol (THC).” The court defined “intentionally” as “conduct that is purposeful and willful and not accidental.” Under this instruction, the jury, in order to convict the defendant, must have concluded that the defendant was knowingly in control of the marijuana in question. The defendant’s arguments in this regard are without merit.
The defendant next argues that the trial court should have instructed the jury that, when a defendant is in the nonexclusive control of an area where drugs are found, there must be incriminating circumstances besides the presence of the drugs to sustain a conviction for possession. Under some circumstances, this might be a meritorious argument; it is not in the instant matter. We have previously set forth the incriminating factors which were proven by the State in this case. Under the circumstances, we cannot say that the failure to give this instruction was clearly erroneous. We are unable to conclude that, had the instruction been given, a real possibility existed that the jury would have returned a different verdict. To the contrary, we conclude that, had this particular instruction been given, the defendant’s risk of conviction would have increased, not decreased.
We find no error in the trial court’s instructions.
HABITUAL CRIMINAL ACT
The defendant argues that the trial court erred in enhancing his sentence under the Habitual Criminal Act. There are several facets to this proposition.
In this case, the classification of the defendant’s crime was enhanced under the provisions of K.S.A. 1991 Supp. 65-4127b(a). That statute provides: “Any person who violates this subsection shall be guilty of a class A misdemeanor, except that such person shall be guilty of a class D felony upon conviction for a second or subsequent offense.” The present conviction is the third conviction of the defendant under this particular statute. The class A misdemeanor provided by the statute was enhanced to a class D felony by proof of a prior conviction of the defendant under 65-4127b(a).
The defendant contends that, once the classification of the crime was enhanced, the penalty could not again be enhanced under the Habitual Criminal Act. He cites no authority for this proposition, and it appears to be a question of first impression.
The Habitual Criminal Act is found at K.S.A. 1991 Supp. 21-4504. This statute provides for enhanced sentences for those previously convicted of felonies. The conviction currently under consideration by this court is the defendant’s third felony conviction in the State of Kansas.
The Habitual Criminal Act provides that it will not be applicable in two specific instances. These instances are set forth in K.S.A. 1991 Supp. 21-4504(e), which provides:
“The provisions of this section shall not be applicable to:
(1) Any person convicted of a felony of which a prior conviction of a felony is a necessary element; or
(2) any person convicted of a felony for which a prior conviction of such felony is considered in establishing the class of felony for which the person may be sentenced.”
The instances set forth above are exclusive. They are the only instances in which the Act is hot applicable. To be successful, this defendant must show that one of those instances applies to prevent the application of the Act in his case.
The record shows three prior convictions of the defendant which are relevant to our inquiry. These convictions, all Seward County convictions, were:
(1) Case No. 83-CR-223, á class A misdemeanor conviction for violation of K.S.A. 65-4127b(a);
(2) Case No. 83-CR-184, a class D felony conviction for theft in violation of K.S.A. 21-3701(d) (Ensley 1981); and
(3) Case No. 84-CR-30, a class D felony conviction for a violation of K.S.A. 65-4127b(a), a second time.
These three convictions were all used by the State to either enhance the classification of the crime for which the defendant was sentenced or to enhance his sentence.
In the information filed, the State alleged that the defendant was in possession of marijuana after “having been previously convicted of violations of K.S.A. 65-4127b in Seward County, Kansas, District Court Case No. 83 CR 223 and 84 CR 30.”
We note first that defendant’s conviction for case No. 84-CR-30 is a prior conviction of the crime with which the defendant was charged in the instant matter. If that conviction were used to enhance the classification of the crime charged to a class D felony, it could not be used again to enhance the defendant’s sentence under the Habitual Criminal Act. It is a “prior conviction of such felony” under 21-4504(e)(2).
The motion filed by the State to enhance under the Act alleged defendant’s prior felony convictions in case No. 83-CR-184 and case No. 84-CR-30 as the underlying convictions.
Although the State alleged that case No. 84-CR-30 was a prior conviction of the crime charged and, thus, could be used to enhance the classification of that crime, the question is which conviction was actually used to enhance the classification. The journal entry of the trial court’s sentencing in this case provides the answer. It provides: “The Court notes for the record that a certified copy of Seward County District Court Case No. 83 CR 223 constitutes the predicate or first-possession offense underlying the Defendant’s present conviction for violating K.S.A. 65-4127b(a) for a second or subsequent time.”
Therefore, despite the allegations of the information, the trial court did not use the conviction in No. 84-CR-30 to enhance the class of crime from a class A misdemeanor to a class D felony. The enhancement of the classification of the crime was accomplished by the use of a prior misdemeanor conviction, No. 83-CR-223. Accordingly, the State was free to use No. 84-CR-30 to enhance under the Habitual Criminal Act.
In this case, a prior conviction was used to convict the defendant of a class D felony. That prior conviction was No. 83-CR-223, a misdemeanor conviction under 65-4127b(a). A prior misdemeanor conviction is not, by definition, a “prior conviction of such felony.” See K.S.A. 1991 Supp. 21-4504(e)(2).
Case No. 83-CR-223 was a conviction for a similar violation of K.S.A. 65-4127b and involved the same type of conduct for which the defendant was charged in the instant matter. Despite all of the similarities, it was a misdemeanor conviction and not a felony conviction. K.S.A. 1991 Supp. 21-4504(e) only bars the use of a conviction to enhance under the Habitual Criminal Act if that conviction was a felony and was also used to enhance the classification of the crime charged. That situation does not exist in the case under consideration.
There are only two instances in which use of the Habitual Criminal Act is barred. The defendant has not shown that either of those instances is applicable to the instant matter. As a result, we hold that the trial court did not err in enhancing the defendant’s sentence under the Habitual Criminal Act.
Finally, the defendant argues that, because the classification of the crime for which he was sentenced was enhanced, the use of the Habitual Criminal Act is barred and his sentence cannot be again enhanced under that act. The defendant has cited no Kansas decisions on the subject, and the statute clearly does not require the result sought by the defendant. We hold that the fact that the class of crime is enhanced by proof of a prior violation of K.S.A. 65-4127b(a) does not bar the State from invoking the Habitual Criminal Act by the use of two prior felonies which were not used in the enhancement of the classification of the crime.
The defendant also argues that, under State v. Wilson, 6 Kan. App. 2d 302, 305, 627 P.2d 1185, aff'd 230 Kan. 287, 634 P.2d 1078 (1981), multiple convictions obtained on the same date may be used only as a single conviction for the purposes of the Habitual Criminal Act. While conceding the correctness of the defendant’s argument, we find it factually inapplicable.
In this case, the defendant’s sentence was enhanced under the Habitual Criminal Act by using case No. 83-CR-184, a felony conviction obtained on December 12, 1983. The other felony used to enhance under the Habitual Criminal Act was No. 84-CR-30, the conviction of which was obtained on February 29, 1984. As a result, State v. Wilson does not factually apply, and the defendant’s argument is without merit.
THE DEFENDANT’S PRESENT SENTENCE
The trial court originally tripled the defendant’s sentence under the Habitual Criminal Act and sentenced the defendant to a term of not less than three years nor more than life. Subsequently, the Department of Corrections advised the trial court that the sentence was improper. The trial court then entered a nunc pro tunc order in which it corrected the sentence and sentenced the defendant to a term of not less than 3 nor more than 30 years. Unfortunately, this sentence is also illegal, and the State concedes that the defendant is correct on this issue.
When it is applicable, K.S.A. 1991 Supp. 21-4504(c)(l) allows sentencing courts to fix a minimum and a maximum sentence of no more than two times the greatest minimum and maximum authorized by K.S.A. 21-4501. In this particular case, the trial court enhanced the defendant’s sentence to three times the greatest maximum authorized for a class D felony of possession of marijuana. This was obviously incorrect.
Under K.S.A. 21-4501(d)(2), the greatest maximum sentence which could be imposed was a sentence of not less than 5 nor more than 10 years. Under the Habitual Criminal Act, the trial court is authorized to double the greatest minimum/maximum sentence authorized by law. The sentence of 3 to 30 years does not exceed the greatest minimum sentence which could have been imposed, but it does exceed the greatest maximum sentence which could have been imposed under the law. The defendant’s sentence is therefore illegal, that sentence is vacated, and the cause is remanded with instructions to resentence the defendant in a manner consistent with this opinion.
Conviction affirmed, sentence vacated, and remanded for resentencing. | [
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Gernon, J.:
Kathi Crawford appeals from the district court decision upholding the assessment of unemployment contributions against her businesses. Crawford is in the business of supplying demonstrators for stores. Demonstrators are people who appear at stores or events to promote food or to show how appliances or products work.
In 1986 and 1987, the Kansas Department of Human Resources investigated Crawford’s business and determined that the business was subject to state unemployment tax because the people who worked as demonstrators were employees and not independent contractors. An administrative law judge found that the demonstrators were employees and that the assessment of unemployment contributions was proper. The decision was affirmed by the Secretary of the Kansas Department of Human Resources.
Crawford filed a petition for judicial review. The district court found that two of the findings of the administrative law judge were not supported by substantial competent evidence, but that the Secretary’s decision was supported by the facts and did not erroneously interpret or apply the law. Crawford appeals from this ruling.
We reverse and remand.
SCOPE OF REVIEW
The first issue to be considered is whether the trial court applied the proper standard of review when making its decision.
Judicial review of orders of an administrative body is governed by the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. The scope of review is stated in K.S.A. 77-621. The agency’s findings are presumed valid on review and the agency’s order may only be set aside by the district court if it is not supported by substantial competent evidence, is without foundation in fact, or is otherwise unreasonable, arbitrary, or capricious. See Zinke & Trumbo, Ltd. v. Kansas Corporation Comm’n, 242 Kan. 470, 474-75, 749 P.2d 21 (1988).
Judicial review is limited to these questions of law. K.S.A. 77-621 does not limit a court’s review of an agency’s interpretation or application of a matter of law. In reviewing a question of law, a court may substitute its judgment for that of the agency. National Gypsum Co. v. Kansas Employment Security Board of Review, 244 Kan. 678, 682, 772 P.2d 786 (1989).
The record discloses that the district court was unsure of its scope of review in its discussion of this issue with the parties. The finding by the court that it was not authorized to make an independent analysis of the law is incorrect.
However, it appears that the court did engage in the proper scope of review when it considered the case. The court discounted several findings as not being supported by the evidence and then stated that, while some of the other factual findings were contested, there was a basis in the record to support them and they should not be disturbed. The court also found that the law had been applied and interpreted correctly. The court’s overall ruling was that the facts and the law supported the decision made by the Department of Human Resources.
EMPLOYEES VS. INDEPENDENT CONTRACTORS
The other issue to be decided on appeal is whether the court erred in ruling that the demonstrators were employees and not independent contractors.
The district court upheld the determination made by the Department of Human Resources that the demonstrators provided by Kathi Crawford’s businesses were employees subject to the Kansas Employment Security Act, K.S.A. 44-701 et seq.
K.S.A. 44-703(i)(3)(D) provides:
“Services performed by an individual for wages or under any contract of hire shall be deemed to be employment subject to this act unless and until it is shown to the satisfaction of the secretary that: (i) such individual has been and will continue to be free from control or direction over the performance of such services, both under the individual’s contract of hire and in fact; and (ii) such service is either outside the usual course of the business for which such service is performed or that such service is performed outside of all the places of business of the enterprise for which such service is performed.”
There is no absolute rule for determining whether an individual is an independent contractor or an employee. The facts and circumstances in each case determine the status of the individual. Wallis v. Secretary of Kans. Dept. of Human Resources, 236 Kan. 97, 102, 689 P.2d 787 (1984).
An independent contractor is generally described as one who contracts to do certain work according to his own methods and is not subject to the control of his employer except as to the results or product of his work. 236 Kan. at 102.
An employer’s right to direct and control the method and manner of doing the work is the most significant aspect of the employer-employee relationship, although it is not the only factor entitled to consideration. An employer’s right to discharge the worker, payment by the hour rather than by the job, and the furnishing of equipment by the employer are also indicia of an employer-employee relationship. McCarty v. Great Bend Board of Education, 195 Kan. 310, 311-12, 403 P.2d 956 (1965).
It is the right of the employer to control the manner of the work that is significant, not the actual interference or exercise of control by the employer. Read v. Warkentin, Commissioner, 185 Kan. 286, 293, 341 P.2d 980 (1959).
Both parties refer to twenty factors considered by the Department of Human Resources when a decision is made as to whether an employer-employee relationship exists. These factors are listed below:
(1) The existence of the right of the employer to require compliance with instructions;
(2) the extent of any training provided by the employer;
(3) the degree of integration of the worker’s services into the business of the employer;
(4) the requirement that the services be provided personally by the worker;
(5) the existence of hiring, supervision, and paying of assistants by the workers;
(6) the existence of a continuing relationship between the worker and the employer;
(7) the degree of establishment of set work hours;
(8) the requirement of full-time work;
(9) the degree of performance of work on the employer’s premises;
(10) the degree to which the employer sets the order and sequence of work;
(11) the necessity of oral or written reports;
(12) whether payment is by the hour, day, or job;
(13) the extent to which the employer pays business or travel expenses of the worker;
(14) the degree to which the employer furnishes tools, equipment, and material;
(15) the incurrence of significant investment by the worker;
(16) the ability of the worker to incur a profit or loss;
(17) whether the worker can work for more than one firm at a time;
(18) whether the services of the worker are made available to the general public;
(19) whether the employer has the right to discharge the worker; and
(20) whether the employer has the right to terminate the worker.
The administrative law judge found that Crawford’s demonstrators were employees because Crawford exercised control by requiring compliance with a dress code and the completion of recap sheets, and because she had the right to terminate a demonstrator for cause.
The district court reversed the finding that a dress code existed, but stated that the demonstrators were told to dress appropriately. The court also reversed the finding that instructions were given to the demonstrators in a booklet. The district court did conclude that the Secretary’s decision to accept the recommendation of the administrative law judge was correct.
We conclude that the court’s conclusion that the people associated with Crawford were employees is not supported by substantial competent evidence, either under the general employer’s right-to-control test or under the twenty specific considerations of the Department of Human Resources.
An individual free from control or direction over the performance of his services is not covered under the Kansas Employment Security Act. Instructions and directions concerning the demonstrations came from the manufacturers of the products and the stores in which the demonstrations took place. Crawford merely transmitted the instructions to the workers by mail or by phone. She had no part in formulating the instructions and did not check on the workers or supervise them during the demonstrations. The demonstrators were not entirely free with respect to how they did their demonstrations, but the restrictions came not from Crawford but from the manufacturers or the individual stores themselves.
The McCarty case listed other relevant aspects of an employer-employee relationship besides the right to control the method and manner of work. Payment of the demonstrators was clearly by the job and not by the hour. Crawford also did not supply any equipment to the demonstrators. These two factors are indicia of an independent contractor relationship. To be sure, the right to terminate issue is not as clear. But, Crawford was free to contact a worker again, or to not do so, and workers were also free to turn down offers of future jobs for any reason. The record further discloses that many worked as demonstrators for other companies.
Of the 20 factors discussed by the parties, many were inapplicable to this situation or inconclusive. At least nine factors plainly supported Crawford’s independent contractor argument. No training was provided by her. She did not set the order or sequence of work, nor did she require that services be provided personally by the demonstrators. There was no work done on Crawford’s premises. Payment was by the job, and business and travel expenses were not paid. No tools, equipment, or materials were furnished by Crawford, and demonstrators could and did work for more than one demonstrating company. Oral or written reports were not necessary, although a time recap sheet was a requirement of one of the stores. The sole use of the recap sheet to Crawford was to verify who had done the demonstration for purposes of payment. Any set work hours were established by the store and not by Crawford.
One of the factors to be considered is that of a continuing relationship. The Department of Human Resources argues that this is satisfied because some workers do demonstration work repeatedly through Crawford. However, Crawford insists that acceptance of each new job offer is a voluntary decision made by the worker and that the relationship between her and the workers is more similar to a person returning to a dentist or doctor he or she likes than to a continuous employment relationship. We conclude that Crawford’s contention has merit. There is no duty owed by Crawford or the worker to each other between jobs, and there is no expectation that further jobs will be offered or accepted. When more demonstrations are arranged, it is done on a job-by-job basis.
A similar situation was considered in Jean M. Light Interviewing Services, Inc. v. State, 254 So. 2d 411 (Fla. 1971). In Light, interviewers for marketing firms were free to refuse jobs that arose without endangering the possibility of being offered work in the future by the company. They were also able to work for other interviewing firms or to have other employment. There was no requirement that they accept a job, and also no requirement that they be offered available jobs. The court in Light found there to be no continuity in the relationship between the interviewers and the firm. 254 So. 2d at 413. These circumstances are analogous to those in the present case.
In summary, most of the 20 factors either weigh against finding an employee-employer relationship or are inconclusive. We conclude that the factors that do exist do not establish a sufficient basis for concluding that there is an employer-employee relationship between Crawford and the demonstrators.
The fundamental question is whether the right to control exists. Any control Crawford had would have had to arise from her being able to enforce the requirements and instructions of the manufacturers or stores, because she herself did not establish any conditions or directions relating to the manner of doing the work. The Department and the district court pointed to three factors as signs of control — the right to terminate, the statement about appropriate dress, and the necessity that recap forms be filled out. However, the recap forms were merely a way of tracking the person who worked and the days worked. The appropriate dress statement was a general instruction not to wear blue jeans and to dress appropriately. The conclusion that we have drawn is that these factors do not show any control over the manner and method of the demonstration itself.
The evidence indicates that Crawford was concerned only that a demonstration be done when requested. She did not appear to have had much knowledge of the specific products demonstrated or of the manufacturers’ instructions, nor did she supervise, direct, or control the workers doing the demonstrations. Therefore, substantial evidence does not exist to support the finding that the demonstrators were employees of Crawford.
Reversed and remanded. | [
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Gernon, J.;
The Kansas Department of Revenue (Department) appeals a district court decision that Joann M. Call had failed a breath test, which decision reversed an administrative order finding she had refused the same breath test.
Call was stopped for speeding. The arresting officer detected the odor of alcohol and asked Call to submit to a preliminary breath test. Call agreed and attempted a test, but the device registered a test failure. The officer then administered additional field sobriety tests, which led him to conclude that Call was driving while under the influence. Call was arrested and transported to the police department.
At the police department, Call was given the implied consent notice as required by K.S.A. 8-1008(f)(l) and was allowed to contact her attorney. Law enforcement officers requested that Call submit to a breath test pursuant to K.S.A. 8-1001. Call’s attorney advised her to take the breath test, and Call notified the officers that she would agree to do so. There is no question the testing equipment and the operator were properly certified and the testing procedures were in accordance with requirements set forth by the Kansas Department of Health and Environment (KDHE).
Call blew into the test equipment, producing a breath alcohol measure of .124%. However, the printout further indicated the sample furnished was deficient. Call tried again, but on the second attempt the machine indicated a deficient sample and registered a breath alcohol content (BAC) of .000%. The parties stipulated that Call would testify she blew into the machine as hard as she could.
It was further stipulated that an employee of KDHE, whose duties included certification of testing equipment and operators of testing equipment, would testify as to how the machine operates and what the various readings mean during the testing procedure.
Both sides also stipulated that, when the machine indicates a “deficient sample,” it means the concentration of alcohol in the sample being delivered is still increasing and a deep lung sample has not been obtained. In addition, everyone stipulated that a person’s correct and actual BAC would equal or exceed any amount registered in a deficient sample. Therefore, Call’s actual BAC at the time of testing would have been equal to or greater than . 124 grams of alcohol per 210 liters of breath.
At an administrative hearing, the hearing officer found Call had refused to submit to and complete the breath test. The hearing officer ordered suspension of Call’s driver’s license for a period of one year.
Call appealed to the district court, arguing that she had not refused the test and that she had provided an adequate breath sample. She urged the court to find she had failed the test rather than refused the test. The difference, of course, is that, if the matter is treated as a first-time test failure rather than a test refusal, the period of license suspension is reduced from one year to 30 days. The district court agreed with Call, and the Department appealed.
K.S.A. 8-1014(a) provides that, “if a person refuses a [breath, blood, or urine] test [to determine if the individual is under the influence of alcohol or drugs or both, as authorized by K.S.A. 8-1001], the division, pursuant to K.S.A. 8-1002, and amendments thereto, shall suspend the person’s driving privileges for one year.” K.S.A. 8-1014(b)(l) provides that, if a person fails a test, on the first occurrence his or her driving privileges will be suspended for 30 days and restricted for an additional 60 days.
K.S.A. 8-1013(h) defines test failure as “a person’s having results of a test administered pursuant to this act, other than a preliminary screening test, which show an alcohol concentration of .10 or greater in the person’s blood or breath.” K.S.A. 8-1013(i) defines a test refusal as “a person’s failure to submit to or complete any test, other than a preliminary screening test, in accordance with this act.” K.S.A. 8-1001(f)(2) provides: “Failure of a person to provide an adequate breath sample or samples as directed shall constitute a refusal unless the person shows that the failure was due to physical inability caused by a medical condition unrelated to any ingested alcohol or drugs.”
The arresting officer certified that Call refused the test. Review by the district court and our review on appeal is, by statute, limited to only the four issues identified in K.S.A. 8-1002(h)(l). The only one of those reviewable issues raised on appeal is whether “the person refused to submit to and complete a test as requested by a law enforcement officer.” K.S.A. 8-1002(h)(1)(D).
The statutes make it clear that failure to “complete” a test constitutes a test refusal, unless the failure is due to physical inability of a medical nature. K.S.A. 8-1013(i); K.S.A. 8-1001(f)(2). Neither the statutes, nor any of the Kansas administrative regulations, however, attempt to define what a completed test is. Whether there is a refusal to submit to a breath test is a question of fact, not of law. See, e.g., Dept. of Transp., M.V.D. v. Romero, 106 N.M. 657, 659, 748 P.2d 30 (Ct. App. 1987). The scope of appellate review is whether there is substantial competent evidence to support the findings of the court. Sullivan v. Kansas Dept. of Revenue, 15 Kan. App. 2d 705, 707, 815 P.2d 566 (1991).
The district court held that a test is “completed,” as that term is used in K.S.A. 8-1013(i), when a sample is adequate and sufficient to determine whether the BAC of the subject exceeds .10%. The Department maintains a test is completed only when a sample sufficient for a true measurement of the subject’s BAC has been provided. The Department seems to contend that proof of a deficient sample establishes a prima facie case of a refusal, unless the defendant can show either that the máehinery was not working properly or that the failure was due to some physical inability caused by a medical condition unrelated to any ingested alcohol or drugs. See K.S.A. 8-1001(f)(2). Call has not alleged that the intoxilyzer was operating improperly, and she provided no evidence of any physical inability of a medical nature, other than her stipulation that she blew as hard as she could.
Courts of other jurisdictions have found that failure to provide a breath sample sufficient to complete the test being administered constitutes a refusal. In Baker v. Colorado, 42 Colo. App. 133, 593 P.2d 1384 (1979), the plaintiff, Baker, failed to cooperate in blowing up a balloon which was part of the testing device. After seven requests by the officer to keep trying, Baker filled the balloon about one-half full. The test report on the partially filled balloon estimated Baker’s BAC at .228%. The court found Baker had refused the test and denied his appeal of his suspension, stating:
“Baker argues that because the state was, in fact, able to procure a reading of his blood alcohol content from the air in the balloon, the purpose of the implied consent statute was met, and that consequently, he had complied with the requirements of the statute as a matter of law. We do not agree. To accept this contention would he to thwart the purpose of the implied consent statute and overlook the principle that Bilker had the burden of proving that he had complied with the statute, [citation omitted].
“To hold that the requirements of the implied consent law are satisfied by partially taking a test would give the licensee the best of both worlds. He would escape any sanction under the implied consent law, and the sabotaged breath test would be suspect in a drunken driving prosecution on the basis, inter alia, that the breath sample contained insufficient air from the lungs and too much from the mouth. [Citation omitted.] . . .
“We hold that the law requires the taking of a test, not merely consenting to it and partially taking the test. ‘Where the test fails for reasons attributable to petitioner it is proper to find no consent by him.’ [Citation omitted.] A test that is sabotaged by the actions of the person, tested is of the same legal effect as no test at all. Conduct constituting less than cooperation by the licensee in taking the test is tantamount to a refusal, or a revocation of prior consent, and provides a basis for imposition of the sanctions specified in the implied consent' law.” 42 Colo. App. at 135-36.
See Jones v. MVD, 90 Or. App. 143, 750 P.2d 1203 (1988).
The district court seems to have believed that any testing result of .10% or higher is a completed test because it would be adequate to prove intoxication under K.S.A. 8-1567. This ignores the fact that the implied consent law penalty for a testing refusal under K.S.A. 8-1014 is unrelated to the penalties imposed for a violation of K.S.A. 8-1567.
We find that failure to provide a deep lung breath sample required for testing by the intoxilyzer machine constitutes a test refusal, unless the person providing the sample can show that the failure was due to a physical inability caused by a medical condition unrelated to any ingested alcohol or drugs. See K.S.A. 8-1001(f)(2). The stipulated evidence showed that Call provided a deficient sample. Call’s only evidence of her physical inability to complete the test was the stipulation that she would testify she blew as hard as she could. There is no medical evidence in the record showing Call’s inability was of a medical nature.
“In reported decisions from other jurisdictions, a motorist’s testimony that lie attempted hut was unable to blow air sufficiently for a breath test has been held insufficient, absent other competent evidence, to prove inability to take the test. Commonwealth, Dep’t of Transp., Bureau of Traffic Safety v. Hudock, 72 Pa. Commw. 608, 457 A.2d 188 (1983); Brinkerhoff v. Commonwealth, Dep’t of Transp., Bureau of Traffic Safety, 59 Pa. Commw. 419, 430 A.2d 338 (1981); White v. South Carolina Dep’t of Highways & Pub. Transp., 278 S.C. 603, 299 S.E.2d 852 (1983); see also Pfeffer v. Department of Pub. Safety, 136 Ga. App. 448, 221 S.E.2d 658 (1975); Wilder v. McCullion, 7 Ohio Misc. 2d 6, 453 N.E.2d 1314 (1983). See generally Annotation, Suspension or Revocation of Driver’s License for Refusal to Take Sobriety Test, 88 A.L.R.2d 1064 (1963 & Supp. 1979).” Dept. of Transp., M.V.D. v. Romero, 106 N.M. at 659-60.
K.S.A. 8-1001(f)(2) places the burden on the motorist to show his or her refusal was based on a physical inability of a medical nature. Call’s statements, standing alone, were insufficient to meet that burden.
The findings of the trial court were not supported by substantial competent evidence. We, therefore, reverse the district court’s decision and remand with instructions to reinstate the decision of the hearing officer.
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Briscoe, C.J.:
Dillon’s Food Stores, Inc., appeals the district court’s refusal to award treble damages in a civil action seeking recovery for worthless checks drawn on the account of Elizabeth Brosseau. We conclude the court erred and remand with directions to enter judgment against Brosseau to include an award of treble damages.
Brosseau wrote six worthless checks, each in the amount of $100, to Dillon’s during a -10-day period in November and December 1989. Dillon’s filed this action to recover the $600 face amount of the checks plus other relief available under K.S.A. 1991 Supp. 60-2610. Pursuant to 60-2610(a)(l), Dillon’s requested damages totaling $1,800, an amount equal to three times the total of the checks. In addition, Dillon’s requested prejudgment interest, attorney fees, court costs, and the costs of collection.
Brosseau failed to appear at the scheduled hearing on Dillon’s claim. The court awarded judgment to Dillon’s against Brosseau for $770. The judgment included $600 for the checks, $20 for attorney fees, and $150 for collection costs. By its ruling, the court ruled in favor of Dillon’s on all of its claims except for the treble damages claim. According to Dillon’s, the court refused to award treble damages because the court presumed Brosseau’s actions were the result of financial hardship.
K.S.A. 1991 Supp. 60-2610, the statute imposing civil liability for worthless checks, provides in part:
“(a) If a person gives a worthless check, as defined by subsection (g), the person shall be liable to the holder of the check for the amount of the check, the incurred court costs and the service charge and the costs of collection, including but not limited to reasonable attorney fees, plus an amount equal to the greater of the following:
(1) Damages equal to three times the amount of the check but not exceeding the amount of the check by more than $500; or
(2) $100.
The court may waive attorney fees provided for by this subsection, if the court finds that the damages and other amounts awarded are sufficient to adequately compensate the holder of the check.
“(b) The amounts specified by subsection (a) shall be recoverable in a civil action brought by or on behalf of the holder of the check only if: (1) Not less than 14 days before filing the action, the holder of the check made written demand on the maker or drawer for payment of the amount of the check and the incurred service charge; and (2) the maker or drawer failed to tender to the holder, prior to the filing of the action, an amount not less than the amount demanded. . . .
“(d) If the trier of fact determines that the failure of the defendant to satisfy the dishonored check was due to economic hardship, the court may waive all or part of the damages provided, for by this section, but the court shall render judgment against defendant for not less than the amount of the dishonored check, the incurred court costs, service charge and the costs of collection, including but not limited to reasonable attorney fees, unless otherwise provided in this subsection. The court may waive attorney fees provided for by this subsection, if the court finds that the damages and other amounts awarded are sufficient to adequately compensate the holder of the check.”
When construing statutes, courts should give words in common usage their ordinary meaning. Bank IV Wichita v. Plein, 250 Kan. 701, 705-06, 830 P.2d 29 (1992). The use of “shall” in a statute may be read to mean “may” where the context of the statute requires. Szoboszlay v. Glessner, 233 Kan. 475, 482, 664 P.2d 1327 (1983). In 60-2610(a), however, the use of “shall” indicates that courts are required to award treble damages to holders of worthless checks who have made a written demand for payment. This conclusion is particularly persuasive given the legislature’s use of “may” in the last paragraph of subsection (a). A presumption exists that the legislature understood the meaning of the words it used and intended to use them, that the legislature used the words in their ordinary and common meaning, and that the legislature intended a different meaning when it used different language in the same connection in different parts of a statute. Rogers v. Shanahan, 221 Kan. 221, 223-24, 565 P.2d 1384 (1976).
Although as a general rule the award of treble damages is mandatory under 60-2610(a), there is one exception where courts are not required to award such damages. K.S.A. 1991 Supp. 60-2610(d) permits a trier of fact to waive the otherwise mandatory award of treble damages upon a finding that “the failure of the defendant to satisfy the dishonored check was due to economic hardship.”
In this case, the journal entry does not explain the court’s reasons for its decision to waive the treble damage award, as required by K.S.A. 60-252 and Rule 165 (1991 Kan. Ct. R. Annot. 126). The journal entry merely recites the parties’ appearances and then enters judgment for stated amounts. Dillon’s contends the court refused to award treble damages because it erroneously found that Brosseau failed to compensate Dillon’s due to economic hardship. There is nothing in the record to support this contention other than the statement of proceedings prepared by Dillon’s attorneys. Although this statement of proceedings was purportedly prepared pursuant to Rule 3.04 (1991 Kan. Ct. R. Annot. 16), there is no evidence it was served upon Brosseau or submitted to the district court for approval. This court cannot consider the statement prepared by Dillon’s because it does not comply with Rule 3.04.
Even if Dillon’s statement of proceedings was considered, there is no evidentiary support for the court’s conclusion that failure to satisfy the dishonored checks was due to financial hardship. Brosseau wrote six worthless checks for identical amounts to the same merchant within a 10-day period. She failed to respond to written demand for payment and she did not appear at the hearing. Brosseau failed to provide any evidence that her writing of worthless checks was due to financial hardship. If one accepts the facts as set forth in Dillon’s statement of proceedings, the district court’s finding that financial hardship existed is not supported by substantial competent evidence. See Gillespie v. Seymour, 250 Kan. 123, Syl. ¶ 1, 823 P.2d 782 (1991). If we disregard Dillon’s statement of proceedings^ the record is insufficient to support a presumption that the district court found all facts necessary to support its decision to waive treble damages.
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Larson, J.:
David M. Thompson appeals from the trial court’s denial of his K.S.A. 60-260(b) motion to set aside the child support order of his 1982 divorce decree.
David contends the trial court (1) never obtained in personam jurisdiction over him sufficient to support a child support judgment, (2) failed to give him the required due process notice of the hearing, and (3) violated the provisions of the Soldiers’ and Sailors’ Civil Relief Act, 50 U.S.C. §§ 501 et seq. (1988), when the child support order was entered.
Although appellant contends the arguments should be limited because certain documents were not made a part of the record, the documents were examined by the trial court during the legal arguments on the motions, and we will consider them as well. The dates are significant, and we set forth the following chronology of events.
December 1976. Elizabeth Thompson (now Russ) and David were married in their home state of California immediately after he enlisted in the Army.
1977-1979. The parties resided in California and Washington. Two children were born to the marriage.
September 1980. David received orders to report to an Army post in Germany. Elizabeth and the children remained with David’s parents in Virginia until finances would permit their move.
Thanksgiving 1980. David discovers Elizabeth and the children have moved to her mother’s home in Kansas City, Kansas.
December 1981. Elizabeth filed a divorce petition in Wyandotte County, Kansas. No attempt at service of summons, either personal, by mail, or by publication, is made.
March 4, 1982. A letter from Raymond D. Wixom, assistant staff judge advocate, to Judge Dean Smith points out David’s military service; states it is not an appearance on David’s behalf; states David wishes to retain counsel and demonstrate lack of in personam jurisdiction; and states David is entitled to a stay pursuant to the Soldiers’ and Sailors’ Civil Relief Act.
March 9, 1982. A letter from David to Judge Smith states he has received a copy of the temporary orders and requests a stay of proceedings under the Soldiers’ and Sailors’ Civil Relief Act; recognizes his obligation concerning support and states he is pres ently providing a $250 per month military allotment for the support of his children; states he wishes to be present but cannot do so because of military training; states he does not have an attorney; and requests a stay until August 15, 1982, so that he may retain counsel or appear on his own behalf.
August 26, 1982. The trial court holds a hearing granting a divorce and entering a child support order of $250 per month. David is stated to appear “by way of his Entry of Appearance.” No motion for default is filed, no notice of this hearing is served on David, and no consideration is given to David being in the military service.
May 5, 1983. A letter from assistant staff judge advocate Wixom to the Wyandotte County Administrative Judge on David’s behalf states it is not an entry of appearance; states David did not receive summons to appear; states David did not know the terms of the divorce until April 1983 when his commander received a copy of the divorce decree from Elizabeth; states under the Soldiers’ and Sailors’ Civil Relief Act David is entitled to have all orders vacated and a stay granted until he leaves the military in September of 1983; and states that $250 per month will be paid by government allotment for child support.
May 31, 1983. The administrative judge refers Wixom’s letter to the trial judge for such response as is deemed necessary. No response is made.
1990. Elizabeth, now a Florida resident, seeks to enforce the child support order of the Kansas divorce decree in California, where David resides.
February 5, 1991. David moves to set aside the child support order of August 26, 1982, claiming it is void, that the Kansas court never had in personam jurisdiction over him, that notice of the August 26, 1982, hearing was never given to him, and that the provisions of the Soldiers’ and Sailors’ Civil Relief Act were violated.
April 1991. David’s motion is denied. A motion to reconsider is filed, and this motion is denied.
May 1991. David appeals.
David argues the failure to comply with statutory requirements for service of process renders the child support order void, his rights under the Soldiers’ and Sailors’ Civil Relief Act were vi- dated, and he is entitled to set aside the child support order under K.S.A. 60-260. David also claims he did not receive any notice of the August 26, 1982, hearing in which the child support order was entered.
Elizabeth counters by arguing the trial court properly ruled David’s March 9, 1982, letter constituted a voluntary entry of appearance, giving the Wyandotte County District Court in personam jurisdiction. She claims David’s requested relief under the Soldiers’ and Sailors’ Civil Relief Act was granted. She contends the decree is valid and the K.S.A. 60-260 motion was not brought within a timely fashion.
We will not reach David’s lengthy background jurisdictional argument in which he contends Kulko v. California Superior Court, 436 U.S. 84, 56 L. Ed. 2d 132, 98 S. Ct. 1690 (1978)., is authority for the required finding that there are insufficient facts to satisfy in personam jurisdiction over David in Kansas. We do not question the authority cited, but to us the issue raised boils down to two essential questions: (1) Did David make a general appearance in the district court of Wyandotte County, Kansas, by virtue of his letter of March 9, 1982? If no entry of appearance was made, the record is clear that no attempt was ever made at service of summons, and it logically follows that no jurisdiction was ever obtained over David upon which any order could be entered. If the letter is held to constitute an entry of appearance, then a second issue is raised. (2) Is the fact that David was never given the required notice under K.S.A. 60-255 a sufficient ground for us to declare the child support order to be without legal effect?
Did David’s letter constitute a voluntary appearance?
“An appearance may be defined as an overt act by which a party comes into court and submits himself to its jurisdiction, and is his first act therein.” Sharp v. Sharp, 196 Kan. 38, Syl. ¶ 1, 409 P.2d 1019 (1966).
Although it was important historically whether an appearance was general or special, see Green v. Green, 42 Kan. 654, 22 Pac. 730 (1889) (special appearance to contest jurisdiction does not give jurisdiction over the defendant); Hanson v. Hanson, 86 Kan. 622, 122 Pac. 100 (1912) (an appearance other than to challenge jurisdiction waives all defects and confers jurisdiction without service of summons), such a procedural distinction has now lost its significance. The distinction was abolished by K.S.A. 60-212(b). Haley v. Hirshberger, 207 Kan. 459, 465, 485 P.2d 1321 (1971).
A party may now plead to the merits and at the same time contest jurisdiction over his person. Small v. Small, 195 Kan. 531, 538, 407 P.2d 491 (1965).
“A defendant need no longer appear specially to attack the court’s jurisdiction over him. The defense of lack of jurisdiction of the person is waived only when it is not raised by motion or in the answer itself. . . . The defense is then waived not because of defendant’s voluntary appearance, but because of the failure to assert the defense within the time prescribed by the rules.” 207 Kan. at 465.
Because an objection to a court’s personal jurisdiction must be made in a party’s first pleading, we must scrutinize the pleading first filed to determine if the party has properly contested the court’s personal jurisdiction. A person may be found to have consented to jurisdiction by filing a motion requesting temporary relief. 1 Elrod, Kansas Family Law Handbook § 9.022, p. 9-14 (rev. ed. 1990).
Professor Robert Casad in Casad, Jurisdiction in Civil Actions § 3.01[5][a], pp. 3-46 to -47 (2d ed. 1991) teaches us that “[a] motion for a continuance or for a stay or extension of time in which to plead usually will be a general appearance.” In Skates v. Stockton, 140 Ariz. 505, 683 P.2d 304 (Ct. App. 1984), it was held that a letter sent by a legal assistance officer to a clerk of the court on behalf of a soldier defendant who was overseas and wished to avail himself of the Soldiers’ and Sailors’ Civil Relief Act was a general appearance.
But, in O’Neill v. O’Neill, 515 So. 2d 1208 (Miss. 1987), it was held that a nonresident husband’s motion for a continuance under the Soldiers’ and Sailors’ Civil Relief Act, submitted prior to filing any other pleadings and specifically stating that the husband was not making an appearance, was not a general appearance so as to confer personal jurisdiction over the husband in a divorce proceeding. The Mississippi Supreme Court quoted 2A Moore, Taggart & Wicker, Moore’s Federal Practice ¶ 12.12 (2d ed. 1987), which states: “ ‘Obtaining extensions of time and taking depositions before answering have been held not to constitute a waiver of the defenses of the lack of jurisdiction of the person and the proper venue.’ ” 515 So. 2d at 1211.
It was important to the court in O’Neill that the serviceman’s counsel filed Rule 12(b)(1) and (2) motions to dismiss. Mississippi followed Orange Theater Corp. v. Rayherstz Amusement Corp., 139 F.2d 871 (3d Cir. 1943), and Bartner v. Debiasse, 20 F.R.D. 355 (E.D.N.Y. 1957), in holding the motion amounted to no more than an application for a stay of the proceedings and did not prohibit a subsequent claim of lack of jurisdiction.
Another similar case is Kramer v. Kramer, 668 S.W. 2d 457 (Tex. App. 1984), which held that a letter to the clerk of the court regarding the inability of a serviceman to appear and answer was not an appearance, but rather an application to stay the proceedings under the Soldiers’ and Sailors’ Civil Relief Act. In Kramer, the spouse desiring the divorce filed an affidavit stating the defendant was in the Armed Forces. The court appointed a guardian ad litem just minutes before the trial began who had no opportunity to discuss the matter with the military member and voiced a continuing objection. Without personal jurisdiction, the court’s orders regarding division of property outside of the state were declared invalid.
With this brief background as to how jurisdiction may be obtained without the proper service of summons, we turn to our specific problem, which is how to characterize and treat the two letters written to the court in March of 1982.
We do not deem it critical that David’s letter made no mention of an appearance not being made. This was clearly stated on David’s behalf in the letter from assistant staff judge advocate Wixom. There clearly was no intention to consent to Kansas jurisdiction, although David may have inadvertently done so.
If the trial court never obtained jurisdiction over David, the judgment is void in its entirety and must be set aside under K.S.A. 60-260(b)(4) because it is a legal nullity. See Barkley v. Toland, 7 Kan. App. 2d 625, 630, 646 P.2d 1124, rev. denied 231 Kan. 799 (1982).
It is not necessary in our resolution of this case to base our ultimate decision solely on whether David made a general appearance because we hold the support order must be set aside for a different reason. We, therefore, hold David made a sufficient appearance in Wyandotte County, Kansas, by his March 9, 1982, letter to submit to the jurisdiction of the court and entitle him to the required due process notice before a child support order could be entered against him.
Is the failure to file a motion for and give David notice of the intention to take a default judgment fatal to the validity of the child support order?
The record is clear that the trial court heard this matter on August 26, 1982, without any motion for default judgment being filed or a notice of the hearing being given as is required by K.S.A. 60-255.
K.S.A. 60-255 relates to matters in default and states:
“(a) Entry. Upon request and proper showing by the party entitled thereto, the judge shall render judgment against a party in default for the remedy to which the party is entitled. But no judgment by default shall be entered against a minor or incapacitated person unless represented in the action by a guardian, conservator or other legally authorized representative who has appeared in the action, or by a guardian ad litem appointed by the court. If the party against whom judgment by default is sought has appeared in the action, he or she (or, if appearing by representative, his or her representative) shall be served with written notice of the application for judgment at least (3) days prior to the hearing on such application. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall accord a right of trial by jury to the parties when and as required by any statute of the state.
“(b) Setting aside default. For good cause shown the court may set aside a judgment entered by default in accordance with K.S.A. 60-260(b).” (Emphasis added.)
The filing of a written request for a bill of particulars in a divorce case was deemed an appearance entitling the defendant to three days’ notice before a default judgment could be rendered against him. Sharp, 196 Kan. 38.
In Jones v. Main, 196 Kan. 91, 92, 410 P.2d 303 (1966), the issue was whether a party served with a garnishment who stated, “ ‘As of this day, J.H. Main does not have any money due him from me,’ ” had made an appearance so as to be entitled to notice under K.S.A. 60-255(a). Justice Fronton stated:
“In his work, Kansas Code of Civil Procedure, annotated, Judge Gard, in commenting on the meaning of the section, says on page 254:
. Appearance by the party in any fashion entitles him to notice three days in advance in taking judgment.’ (Emphasis supplied.)
“It seems to be generally accepted in those jurisdictions which have passed on statutes similar to ours that ‘appearance’ and ‘answer’ are not synonymous terms, an appearance being more comprehensive in its reach than an answer. In discussing the sense or purport of appearance, the New Jersey court in In re Cool, 19 N.J. Misc. 236, 18 A.2d 714, says:
‘. . . The word “appearance” is defined in Webster’s New International Dictionary (2d ed.) 1940, as meaning in law, “the coming into court of a party summoned in an action either by himself or by his attorney.” Technically, there are several different kinds of methods of appearance. See Am. Jur. Appearances, § 1, &c. A default of any appearance by the defendant means a default in any one of several ways of making an appearance. “ ‘Any’ applies to every individual part without distinction.” Styles v. Freeholders of Union, 50 N.J.L. 9, 11. A party’s conduct as well as other circumstances are to be considered in determining whether he has actually appeared, (p. 238)’ ” 196 Kan. at 93.
Although we recognized in Simmon v. Bond, 6 Kan. App. 2d 766, 634 P.2d 1148 (1981), that failure to file an answer is prima facie default, we held the trial court could not grant default judgment because the requisite three-day notice required by K.S.A. 60-255(a) had not been given. Our court also held that an oral motion made during the trial did not fall within the exception of K.S.A. 60-207(b)(l), which requires motions to be in writing. 6 Kan. App. 2d at 769. The law favors a trial upon the merits and looks with disfavor upon a default judgment. A default judgment was prohibited when the defendant had not been given proper notice.
Hood v. Haynes, 7 Kan. App. 2d 591, 644 P.2d 1371 (1982), held that a letter to the court requesting notice of any activity in a mortgage foreclosure action was deemed an “appearance” entitling the defendants to three days’ notice before a default judgment could be rendered under K.S.A. 60-255. Chief Judge Foth gave heavy weight to the issue of whether the party had indicated an “intention to defend.” An attempt was made to distinguish both Sharp v. Sharp and Jones v. Main as actions involving much more than a letter to the judge, but we held that “[m]any cases from other jurisdictions, however, find an ‘ap pearance’ on the basis of far less indication of an intention to defend than that found in Haynes’ letter to the trial judge.” 7 Kan. App. 2d at 595. We will not unduly lengthen this opinion by setting forth all of the cases cited in Hood v. Haynes, which clearly shows David’s correspondence is sufficient to have required that notice be given to him before any default judgment could be entered.
Wellsville Bank v. Sutterby, 12 Kan. App. 2d 585, 588, 752 P.2d 700 (1988), involved an attempt to work out an agreement to avoid foreclosure of a defaulted loan. We assumed without holding that the execution of a new note constituted an “appearance.” The bank’s failure to give the required three-day notice of the hearing on the bank’s application for a default judgment was not deemed to render the judgment void; however, Judge Six stated:
“[F]ailure to give the three days’ notice justifies the setting aside of the default judgment. Cf. Hood v. Haynes, 7 Kan. App. 2d 591, 598, 644 P.2d 1371 (1982); 10 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2687 (1983). However, the default judgment entered without such notice is not void. Winfield Associates, Inc. v. Stonecipher, 429 F.2d 1087, 1091 (10th Cir. 1970); 10 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2687; accord, Universal Modular Structures, Inc. v. Forrest, 11 Kan. App. 2d 298, 302, 720 P.2d 1121 (1986). The trial court did not err in concluding that the default judgment was voidable.”
We do not deem our factual situation to be sufficiently similar to require application of Bazine State Bank v. Pawnee Prod. Serv., Inc., 245 Kan. 490, 781 P.2d 1077 (1989), cert. denied 110 S. Ct. 2173 (1990). In that case it was held that, although procedural due process requires a hearing before there is a permanent deprivation of property, an unresponsive defendant who had asked for many extensions and continuances in a mortgage foreclosure action was not entitled to have a judgment set aside. The trial court’s refusal to do so was not considered to be an abuse of discretion requiring reversal.
We are on clear ground to hold, as a matter of law, that because the required notice mandated by K.S.A. 60-255(a) in order to take a default judgment was not given, the child support order is voidable.
Because K.S.A. 60-255(b) specifies the court may set aside the judgment entered by default for good cause shown in accordance with K.S.A. 60-260(b), it becomes necessary to examine those provisions to determine if the child support order should be set aside. K.S.A. 60-260(b) provides in pertinent part:
“On motion and upon such terms as are just, the court may relieve a party or said party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under K.S.A. 60-259(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken.”
The applicable provision is K.S.A. 60-260(b)(6), which brings into consideration the requirement that the motion shall be made within a reasonable time.
Our recent case of Wilson v. Wilson, 16 Kan. App. 2d 651, Syl. ¶ 6, 827 P.2d 788 (1992), held that what constitutes a “reasonable time” for seeking relief from a judgment depends on the facts of each case, with relevant considerations including whether the parties have been prejudiced by the delay or whether good cause has been shown for failing to take action sooner.
Although we held in Wilson that a motion seeking an order that the movant was not the biological father was not filed within a reasonable time (he was advised by the trial court to do so six years before the filing of the motion and nine years after the divorce was granted), our factual situation here is materially diiferent.
Here, David took prompt action to set aside the judgment once it became apparent that Elizabeth was attempting to enforce the child support order, although she did not do so for a period of seven years after the last payment was received from the military allotment. Elizabeth had the right to compel support payments under the Uniform Reciprocal Enforcement of Support Act, and we hold that she may not, because of her failure to act, preclude our finding that David took action to set aside the judgment rendered without notice to him within a reasonable period of time.
We do not need to reach David’s argument that the provisions of the Soldiers’ and Sailors’ Civil Relief Act, by themselves, require the judgment to be set aside because of our previous statements and holding herein. We are singularly unimpressed by the manner in which the hearing occurred and note that the act was directly violated when the judgment was entered. No affidavit was filed showing David was in the military service. No request was made and the trial court did not appoint an attorney to represent David and protect his interest, which is also required. The time within which each of these arguments should have been made has expired, and because David made no timely application for the protection of his rights under the Soldiers’ and Sailors’ Civil Relief Act, the act is not dispositive or applicable in this appeal. See 50 U.S.C. § 520 (1988).
For the reasons set forth herein, the judgment awarding Elizabeth child support from David is reversed. | [
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Elliott, J.:
Ronda McMechan challenges the district court’s decision that her appeal to that court from the municipal court judgment against her was not timely.
We reverse and remand with directions.
Defendant was convicted in municipal court of DUI and driving with a suspended license. Within 10 days, she filed a notice of appeal with the district court clerk, as required by K.S.A. 22-3609(2). The notice of appeal, however, stated the appeal was being taken to the Court of Appeals. Outside the 10-day period, an amended notice of appeal was filed stating the appeal was being taken to the district court.
Thq district court dismissed the appeal as being untimely due to the original notice’s designation of the wrong court. The district court’s dismissal was based on its interpretation of a statute. Our review of questions of law is unlimited. Hutchinson Nat’l Bank & Trust Co. v. Brown, 12 Kan. App. 2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988).
K.S.A. 22-3609 provides in part:
“(2) An appeal to the district court shall be taken by filing, in the district court of the county in which the municipal court is located, a notice of appeal and any appearance bond required by the municipal court. Municipal court clerks are hereby authorized to accept notices of appeal and appearance bonds under this subsection and shall forward such notices and bonds to the district court. No appeal shall be taken more than 10 days after the date of the judgment appealed from.
“(3) The notice of appeal shall designate the judgment or part of the judgment appealed from. The defendant shall cause notice of the appeal to be served upon the city attorney prosecuting the case.”
The question presented is whether incorrectly naming the court to which the appeal is taken invalidates the notice and leaves the district court without jurisdiction. No criminal cases in this state directly address the question.
The notice of appeal in the present case did not lack any mandated requirements of K.S.A. 22-3609. That statute merely requires that the notice of appeal state what part of the judgment is being appealed. K.S.A. 22-3609(3).
On the other hand, K.S.A. 22-3606 provides that except as otherwise provided by statute or Supreme Court rule, statutes and rules governing civil appeals shall govern criminal appeals. And, K.S.A. 1991 Supp. 6Q-2103(b) states that a notice of appeal shall name the appellate court to which the appeal is taken.
In Alliance Mutual Casualty Co. v. Boston Insurance Co., 196 Kan. 323, 411 P.2d 616 (1966), a notice of appeal from the district court omitted the words “to the Supreme Court.” The court held that where there is but one court to which an appeal may be taken, the failure to name that court in the notice of appeal is a mere irregularity to be disregarded unless the appellee has been misled. 196 Kan. at 326-27.
In the present case, the district court is the only statutorily permitted court to which defendant may appeal. K.S.A. 12-4602; 22-3609(1). The City has not cited any prejudice it has suffered from the incorrect naming of the appellate court.
Further, in Harvey v. Harvey, 215 Kan. 472, 476, 524 P.2d 1187 (1974), a defendant did not state the original judgment appealed from — another requirement of 60-2103(b). The district court allowed the defendant to file an amended notice of appeal including the missing element, even though the amended notice was beyond the time limit. The Supreme Court called this error by defendant “technical” and indicated it should be disregarded.
In the present case, defendant misstated the court to which she was appealing, but the district court is the only court to which she was statutorily permitted to appeal. No one was misled by the error. Following Alliance Mutual and Harvey, the technical error should have been disregarded.
Reversed and remanded with directions to reinstate the appeal. | [
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|
Larson, J.:
William A. Foy appeals the summary denial of his K.S.A. 60-1507 motion.
Foy pled guilty on January 9, 1989, to one count of attempted indecent liberties with a child. Foy was sentenced to a term of 3 to 10 years. Our court affirmed Foy’s sentence in an unpublished opinion, State v. Foy, No. 63,871, filed July 20, 1990.
On appeal from the denial of his K.S.A. 60-1507 motion, Foy contends his appointed counsel was ineffective for failing to inform him that he had an option to seek review in the Kansas Supreme Court of this court’s decision to affirm his sentence; he was denied his due process right of access to this state’s appellate courts; and the trial court erred in denying his motion without appointing counsel and conducting an evidentiary hearing.
Review by the Kansas Supreme Court of the Court of Appeals’ decision to affirm Foy’s sentence was discretionary. See K.S.A. 20-3018(b); K.S.A. 22-3602(d); Supreme Court Rule 8.03 (1992 Kan. Ct. R. Annot. 41). In Wainwright v. Torna, 455 U.S. 586, 587-88, 71 L. Ed. 2d 475, 102 S. Ct. 1300 (1982), the United States Supreme Court held that because a criminal defendant has no constitutional right to counsel in a discretionary appeal, he could not be deprived of the effective assistance of counsel by his retained counsel’s failure to timely file an application for review in the Florida Supreme Court of the Court of Appeals’ decision to affirm his convictions. See Robinson v. State, 13 Kan. App. 2d 244, 250, 767 P.2d 851, rev. denied 244 Kan. 738 (1989).
As Foy had no constitutional right to counsel to pursue a discretionary appeal to the Kansas Supreme Court, he is not deprived of the effective assistance of counsel by his appointed counsel’s failure to file a petition for review or the failure of such counsel to inform Foy he had the option of seeking discretionary review.
Foy’s contention that he was denied his due process right of access to the appellate courts was not raised in his K.S.A. 60-1507 motion and cannot be raised for the first time on appeal. See State v. Roberts, 14 Kan. App. 2d 173, 180, 786 P.2d 630, rev. denied 246 Kan. 770 (1990). In light of the foregoing, however, this contention, which flows from Foy’s allegation of ineffective assistance of counsel, has no merit.
It is well established that when no substantial issue of fact or question of law is raised by a K.S.A. 60-1507 motion, the trial court is not required to appoint counsel or hold an evidentiary hearing. Rhone v. State, 211 Kan. 206, 208, 505 P.2d 673 (1973). See Wright v. State, 5 Kan. App. 2d 494, 495-96, 619 P.2d 155 (1980). The trial court did not err by summarily denying Foy’s motion.
Affirmed. | [
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|
Lewis, J.:
Flambeau Corporation (appellant) appeals various decisions of the trial court adverse to its interests. After careful review, we affirm.
Robert and Helen Bergkamp invented and patented a recipe organizer. They formed New Dimensions Products, Inc., (appellee) to develop and sell their product. This lawsuit arises out of the exclusive licensing agreement entered into by the parties. Appellee contends that appellant breached this agreement in several respects by underpayment of royalties due and owing and by the failure to carry out various other contractual considerations.
The exclusive agreement between the parties dates back to 1980. Pursuant to the original agreement, not at issue in this matter, appellant was to manufacture and sell the recipe organizer. Appellee was to receive a royalty payment amounting to eight percent of the net sales. Appellant also took possession of the steel mold from which the recipe organizers were manufactured, while appellee retained ownership of that item.
In October of 1985, a new exclusive licensing agreement was entered into between the parties. This agreement incorporated nearly all of the provisions of the original agreement but reduced the royalty payment owed by appellant from eight percent of net sales to four percent of net sales. This action was instituted to recover damages for breach of the 1985 agreement by appellee.
The 1985 agreement required the payment of royalties as stated above and required appellant to make monthly royalty reports and monthly payments of royalties to appellee. The evidence shows that, at best, these monthly reports and payments were made quarterly and then only after prodding phone calls from Helen Bergkamp.
The agreement in question required appellant to establish a “tooling account.” This account was to be funded by a payment of one percent of net sales by appellant and was to be used as necessary to repair the steel mold from which the recipe organizers were manufactured. The agreement provided that any amounts in the tooling account on hand when the agreement was terminated would become the property of appellee. The evidence is uncontradicted that appellant did not establish or fund the tooling account as required. The agreement required monthly reports of the tooling account deposits. Appellant made none of the required reports.
The relationship between the parties began to unravel in 1989. At one point, the Miles Kimball Company wrote to appellant seeking to order recipe organizers. In response, appellant advised Miles Kimball that it no longer handled the product and suggested that inquiries be made directly to Helen Bergkamp. At this time, appellant had never advised appellee it would no longer sell the recipe organizers. The first inkling Helen Bergkamp had of this decision occurred when Miles Kimball informed her of appellant’s letter. Helen Bergkamp then wrote to appellant, who told her that sales of the recipe organizers were less than satisfactory and that it had 424 recipe organizers in stock. In this letter, appellant advised appellee that it could purchase the recipe organizers in stock, along with the company’s inventory, for a cash payment of $33,172.43. Helen Bergkamp declined the offer.
By 1991, royalty payments had all but ceased. Helen Bergkamp sensed that appellant was being less than honest in paying royalties. She recruited her daughter to write appellant and order five recipe organizers. Appellant responded by selling Helen Bergkamp’s daughter five recipe organizers, three of which it called “Coupon Organizers.” Helen Bergkamp’s daughter bought and paid for these items. Appellee received no royalty payments on this sale.
Indeed, it appears appellant sold a number of recipe organizers without paying the required royalty to appellee. Appellant admits this fact, but states it does not know how much it owes appellee. In addition, appellant sold recipe organizers which it called “Coupon Organizers” and “Country Love Organizers.” The Coupon Organizer and the Country Love Organizer were both made from the original steel mold. No royalties were paid by appellant to appellee for sales of the Coupon Organizer or the Country Love Organizer.
The suit instituted by appellee sought to recover unpaid royalties and the amount due on the “tooling account,” which had never been established by appellant. The matter was tried to the trial court, which awarded appellee total damages of $35,297.23.
Under the 1985 agreement, appellee agreed to purchase from appellant the “inventory” on hand used to manufacture the recipe organizers when the contract was terminated. Appellant claimed the value of its inventory was $32,519.14 and sought to set off that amount against any damages recovered by appellee. The trial court denied the remedy of setoff as asserted by appellee.
During the discovery phase of this action, appellee sought to discover all records showing sales of recipe organizers by appellant’s outlet stores. Appellant consistently denied it had any such records and stated it had produced all records in its possession. On the first day of trial, appellant admitted it had not been truthful during discovery. It admitted it did have records of sales from its outlet stores. The trial court then recessed the trial and ordered appellant to produce the records which it had earlier denied were available.
After considering the newly discovered evidence, the trial court denied appellant the right to introduce such evidence and held that appellee could use any of the evidence it desired. The trial court also ordered appellant to pay sanctions of $5,000 and attorney fees of $2,400.
Appellant appeals the trial court’s award of damages, the denial of its setoff, and the sanctions imposed.
DAMAGES
This was an unusual and complex factual situation. The trial court, in seeking to resolve this situation, made 126 findings of fact and conclusions of law. Appellant contends that the damage award made by the trial court for unpaid royalties was not supported by substantial competent evidence.
Appellant argues that the evidence offered to establish damages and the method used by the trial court to compute the damages was speculative and unreliable. We review this issue in the light of the circumstances which existed at the time of trial.
Appellant admits it breached its agreement with appellee and did not pay all royalties owed. It also insists it kept no production records, does not know how many recipe organizers it sold, and is not certain what it owes appellee for underpaid royalties, other than conceding it owes $118.33. This is an admission by appellant that it breached the agreement. The issue is not whether appellee has been damaged; it is how much it has been damaged. Virtually all the evidence as to how many recipe organizers were manu factured and sold is under the exclusive control of appellant. Appellee had no way to determine how many recipe organizers were manufactured and sold. The only damages capable of clear and convincing proof are those admitted by appellee. Proof of the balance of the unpaid royalties can only be made by use of such documentation as appellant admits was available and was willing to disclose. We keep in mind that appellant still denies it has any production records and denied until the trial began that it had any sales records.
The method used by appellee to prove its damages is based on evidence which falls short of being absolute. In addition, this evidence requires that the trial court make certain inferences and assumptions in calculating the unpaid royalties owed. The question is whether that evidence was sufficient under the circumstances.
Appellee’s proof of its damages rested on three exhibits. Exhibit No. 20 was a letter from appellant to Helen Bergkamp which indicated that, on March 16, 1989, appellant had 424 gold recipe organizers in its inventory. Exhibit No. 26 was an internal memorandum prepared by appellant. This document indicates that, on March 31, 1990, appellant had 299 recipe organizers on hand and that, on June 1, 1990, that number had been reduced to 140. Exhibit No. 27 was another document prepared by appellant, and it showed that on November 20, 1989, there were 375 gold recipe organizers in appellant’s inventory. As pointed out earlier, there were no production or sales records available.
The exhibits noted above show that, between March 16, 1989, and June 1, 1991, appellant failed to pay royalties on 83 percent of its sales of recipe organizers. The trial court then calculated appellee’s damages as follows:
“71. Between March 16, 1989 and June 1991, defendant’s inventory of gold Recipe Organizers was reduced by 284 while sales of only 48 were reported to plaintiff during that same time. Consequently, the Court finds that defendant did not report to plaintiff the sale of 236 gold Recipe Organizers, or 83% of the total sales of 284, between March 16, 1989 and June 1991.
“77. The Court finds with reasonable certainty, under the facts and circumstances of this case, that defendant under-reported all sales to plaintiff since 1985 in the same manner that it under reported sales to plaintiff between March 16, 1989 and June 1, 1991. . . .
“78. Defendant reported sales to plaintiff in the amount of $104,055.41 since November of 1985. . . .
“79. The Court finds with reasonable certainty under the facts and circumstances of this case, that the actual sales of the Recipe Organizers since November 1985 is $615,008.29 and that the total royalty due plaintiff from defendant is $24,600.33. . . .
“81. Prejudgment interest in the amount of 10% on the amount of royalty outstanding and unpaid to plaintiff totals $8,717.77.”
Appellant argues that the evidence to support these findings and the method used to arrive at the damages is speculative and unreliable. However one may wish to categorize the evidence, it was the best and only evidence available. The analysis by the trial court was certainly designed to make appellee whole in the face of admitted and repeated breaches of agreement by appellant.
This was a complex question of fact which was presented to the trial court. The trial court resolved that question of fact on the best evidence available. Our scope of review in cases of this nature is well known.
“ ‘Where the trial court has made findings of fact and conclusions of law, the function of this court on appeal is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. [Citations omitted.] 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. [Citation omitted.] Stated in another way, “substantial evidence” is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. [Citation omitted.]’
“This court’s review of conclusions of law is unlimited. U.S.D. No. 352 v. NEA-Goodland, 246 Kan. 137, 140, 785 P.2d 993 (1990)." Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).
The Supreme Court in Gillespie also held that “[t]he purpose of awarding damages is to make the injured party whole.” 250 Kan. 124, Syl. ¶ 8. “[I]n assessing damages it is within the discretion of the trial court to apply equitable standards in order that the plaintiff may be made whole.” 250 Kan. 124, Syl. ¶ 9.
In determining whether the trial court’s findings are supported by substantial competent evidence, we intend to examine the peculiar factual situation presented to the trial court. We think it is significant that appellee’s evidence was the best evidence obtainable and that a great deal of potentially relevant evidence was either unavailable or was not disclosed by appellant. Under these circumstances, the goal was to make appellee whole. In Gillespie, the trial court fashioned a method of awarding damages in a complex case in which many records were simply unavailable. Both parties to that appeal were unhappy, and the Supreme Court, in affirming the trial court, stated:
“In assessing damages it is within the discretion of the trial court to apply equitable standards in order that the plaintiff may be made whole. Seaman U.S.D. No. 345 v. Casson Constr. Co., 3 Kan. App. 2d 289, Syl. ¶ 2, 594 P.2d 241 (1979). The trial court’s goal, appropriately, was to make the plaintiffs whole. State ex rel. Stephan v. Wolfenbarger & McCulley, P.A., 236 Kan. 183, 189, 690 P.2d 380 (1984). In this unusual and complex factual situation, the trial court fashioned a remedy to accomplish this goal. Our test on appellate review is not whether the remedy fashioned is the best remedy that could have been devised, but whether the remedy so fashioned is erroneous as a matter of law or constitutes a breach of trial court discretion. After carelul consideration and review, we find no error or abuse of discretion in the computation of damages.” (Emphasis added.) 250 Kan. at 143.
We think the same logic can be applied to the instant matter. Appellant admits multiple repeated breaches of contract, admits it owes appellee money, but denies it knows how much, and insists it has no records to shed light on the subject. Appellee is obviously entitled to be made whole, but the trail of evidence is obscured by appellant’s denial of records and its failure to come forward with anything to shed light on the issue. Under these difficult circumstances, the trial court fashioned a formula from the only evidence available, and we cannot say that the remedy fashioned by the trial court was reversible error. If the approach taken seems a bit harsh or punitive, the answer may be found in appellant’s conduct.
“The main thrust of appellant’s argument as to damages is directed at the insufficiency of the evidence to support the judgment. The measure of damages recoverable for a breach of contract is limited to such as may fairly be considered as arising in the usual course of things from the breach itself, or as may reasonably be assumed to have been within the contemplation of the parties as the probable result of such a breach. [Citations omitted.] The evidence allowed to support damages for breach of contract is the best evidence obtainable under the circumstances of the case to show the natural and ordinary consequences of the breach and which will enable the court or the jury to arrive at a reasonable estimate of the loss which resulted. (Gartner v. Missimer, 178 Kan. 566, 570, 290 P.2d 827; Vanguard Insurance Company v. Connett, 270 F.2d 868 [10th CA].)” Phillips & Easton Supply Co., Inc. v. Eleanor International, Inc., 212 Kan. 730, 738, 512 P.2d 379 (1973).
In Vanguard Insurance Company v. Connett, 270 F.2d 868 (10th Cir. 1959), the Tenth Circuit, applying Kansas law, said:
“Where the cause and existence of damages has been established with requisite certainty, recovery will not be denied because such damages are difficult to ascertain. While the damages may not be determined by mere speculation or guess, it is enough if the evidence shows the extent of the damages as a matter of just and reasonable inference. A reasonable basis of computation and the best evidence which is obtainable under the circumstances of the case and which will enable the jury to arrive at an approximate estimate of the loss is sufficient.” 270 F.2d at 870.
The cases cited above support our conclusion that the trial court’s award of damages was supported by substantial competent evidence. The record very clearly indicates that it was appellant who had exclusive control over all the records concerning production, sales, and costs of materials. Appellant consistently denied those records existed at the trial and steadfastly refused to produce them. Under these circumstances, proof of damages was difficult. This difficulty was created by appellant, and appellee should not be penalized by appellant’s failure to either keep the necessary records or to produce them when asked to do so. The only method offered to determine the amount of unpaid royalties in this case was put forward by appellee. The trial court concluded:
“The analysis, of comparing the reduction of inventory with the reported sales during the only time frame in which the inventory is known, to create a ratio of unreported to reported sales, and applying the same ratio to other time frames provides a reasonable basis for awarding damages under the circumstances.”
We agree with the trial court’s comments set forth above. We conclude the evidence offered by the appellee was the best evidence obtainable under the circumstances. The trial court’s award of damages was supported by substantial competent evidence and is affirmed.
TOOLING ACCOUNT
Appellant argues that the evidence used to determine the dam age award for failing to maintain the tooling account was not supported by substantial competent evidence. We disagree.
The trial court determined that the total sales of recipe organizers was $615,008.29. Appellant had promised to set aside one percent of total sales for the tooling account. Accordingly, the trial court held that appellee was entitled to damages of $6,150.08 by reason of the termination and breach of the 1985 agreement.
Appellant’s argument concerning the tooling account is precisely the same argument it made concerning the damages awarded for unpaid royalties. We conclude that the award of damages on the tooling account is affirmed for the reasons set forth above.
DISCOVERY SANCTIONS
As pointed out earlier in this opinion, the trial court ordered appellant to pay sanctions to appellee in the amount of $5,000 and attorney fees in the amount of $2,400. These sanctions were the result of admitted discovery violations by appellant which delayed the trial and which the trial court found were abusive.
We have reviewed the record and find nothing which requires a reversal of the trial court’s award of sanctions. We note the trial court apparently misspoke itself in stating it was awarding sanctions under K.S.A. 60-211. We assume the trial court meant to award sanctions under K.S.A. 60-237 and simply recited the wrong statute. In any event, the intentional or inadvertent reference to 60-211 does not require us to reverse the sanctions imposed.
Appellant’s actions were inexcusable and delayed the trial by several days. Such non-action cannot be ignored by a trial court if it is to keep proper control over a busy trial docket. The use of sanctions to punish violations of discovery orders is an appropriate way to maintain that docket.
The award of sanctions, including attorney fees, for discovery violations is within the discretion of the trial court. See Schulze v. Coykendall, 218 Kan. 653, 658, 545 P.2d 392 (1976); Dickinson, Inc. v. Balcor Income Properties Ltd., 12 Kan. App. 2d 395, 401, 745 P.2d 1120 (1987), rev. denied 242 Kan. 902 (1988). There is no indication in the record that the trial court abused its discretion in the amount of sanctions it awarded, and its action is affirmed.
ADMISSION OF NEWLY PRODUCED EVIDENCE
After the trial court had an opportunity to review the newly reported discovery documents finally disclosed by appellant it ruled: “[A]ny and all materials that have been discovered due to the court’s order after the plaintiff rested in this case only evidence that supports the plaintiff’s position will be allowed to be presented. All other will be denied.” Pursuant to that order, the trial court refused to allow appellant to offer any of the evidence to support its position. Appellant argues that the trial court’s orders were erroneous and require a reversal of the decision. We disagree.
“The admission of exhibits not previously disclosed ... is discretionary with the trial court. Discretion is abused only when no reasonable man would take the view adopted by the trial court. [Citation omitted.] The exercise of judicial discretion requires that a judge have proper regard for what is just and fair under the existing circumstances, and that he not act in an arbitrary fashion or unreasonable manner. [Citations omitted.]” State Farm Fire & Cas. Co. v. Liggett, 236 Kan. 120, 124-25, 689 P.2d 1187 (1984).
We see no evidence that the trial court abused its discretion in ruling on the admission of the newly discovered documents produced by appellee.
In addition, appellant made no proffer to show what evidence might have been presented or how it would have helped its position. K.S.A. 60-405 states:
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous 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.”
See Salem v. Salem, 214 Kan. 828, 832, 522 P.2d 336 (1974).
SETOFF
Appellant sought to offset any damages awarded to appellee by the amount it claimed was owed to it by appellee to purchase inventory items. Appellant sought to prove that it had $34,407.54 of such inventory on hand. The trial court denied the request for a setoff. Appellant contends such denial was reversible error. We disagree.
The trial court’s basis for denying the setoff relief was as follows:
“Flambeau Corporation now seeks set off from plaintiff in an amount to purchase the inventory and materials it claimed were for the production of the Recipe Organizer. Defendant should not be allowed to benefit from this breach of contract. The Doctrine of Clean Hands provides, in substance, that no party can obtain affirmative relief with respect to a transaction in which he has, himself, been guilty of inequitable conduct. [Citations omitted.] Here, defendant has breached the Exclusive Licensing Agreement in many ways and seeks affirmative relief, set off. Flambeau Corporation should not be rewarded for its breach by a set off from the damages caused by its own wrongful conduct. [Citation omitted.]”
We agree with the trial court’s reasoning. “The clean hands doctrine provides in substance that no person can obtain affirmative relief in equity with respect to a transaction in which he has, himself, been guilty of inequitable conduct.” Miller v. Miller, 222 Kan. 317, 319, 564 P.2d 524 (1977); Green v. Higgins, 217 Kan. 217, 220, 535 P.2d 446 (1975).
Appellant is not a candidate for equitable relief. It has admittedly breached its agreement with appellee in several respects. Appellant has withheld royalty payments due under the agreement. Appellant failed to establish and fund a tooling account required by the agreement. Appellant did not make written reports nor pay royalties regularly as required by the agreement. Appellant was guilty of one of the worst cases of discovery abuse the trial court stated it had ever witnessed. Under all of these circumstances, certainly appellant did not come to the trial court with clean hands, and the trial court did not err in refusing to provide to appellant relief by way of the doctrine of setoff.
The trial court alternatively denied appellant’s request for a setoff for the reasons set forth in paragraphs 113, 115, 116, 117, 118, and 119 in the trial court’s findings of fact and conclusions of law. These findings deal with the sufficiency of evidence, and we do not wish to prolong this opinion by any detailed discussion of that issue. We have reviewed the findings and conclude that they are correct and constitute a second basis on which to deny appellant’s setoff request.
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Lewis, J.:
This is an appeal on issues arising from the attempted termination of an oral farm lease pursuant to K.S.A. 58-2506(c). The trial court held that the notice given was in compliance with the law and terminated the lease. The appellant appeals from that decision and from the trial court’s orders on other issues.
For the purposes of clarity, the appellant, Gary Roberts, will be referred to as “T” for tenant. The appellee, Dale Mendenhall, was the landlord and will be referred to as “LL.”
Sometime in 1988, the parties entered into an oral lease involving 560 acres of farm ground in Lane County. Insofar as the validity of the notice of termination is concerned, all the rented ground may be considered crop ground. LL was the uncle of T and the owner of the real estate. Under the lease, the crops were to be shared one-third to LL and two-thirds to T.
On August 30, 1988, LL sent a handwritten note to T, terminating the oral lease. T received this notice on September 2, 1988. The notice read as follows:
“Gary,
“This is to let you see that the lease on the farm ground on [Southeast Quarter (SE/4), the Northeast Quarter (NE/4), Southwest Quarter (SW/4) and the South Half of the Northwest Quarter (S/2-NW/4) of 3-16-27] of Lane County will run out August 1, 1989.
“Sorry that you did not farm it so you could have keep [sic] it.
“Sincerely,
“Dale Mendenhall”
At the time the notice was received, there were no growing crops on the land. The 1988 wheat crop had been recently harvested. The summer fallow ground had been worked and prepared for the seeding of the 1989 wheat crop. That crop was ultimately sown and harvested by T. There is no issue as to the 1989 crop. All parties agree that T had the right to harvest it, and it was divided pursuant to the crop-sharing agreement between the parties.
The crop in issue is the 1990 crop. T chose to ignore the notice he received on September 2, 1988, and planted all of the farm ground back to wheat in the fall of 1989. In doing so, T not only planted the summer fallow acres but continuously cropped the balance of the farm acres into wheat. At some point after the 1990 crop was planted, LL destroyed 100.7 acres of the wheat.
T took the position, and maintains that position on appeal, that the notice to terminate his lease was ineffective. He argues that, under K.S.A. 58-2506(c), a notice is required to fix the termination of an oral farm lease as March 1. T argues that the failure of the notice in this case to fix the termination date of the tenancy as March 1 rendered it a nullity. As a result, T argues that the lease was never terminated.
T also contends that he entered into a new oral lease with LL sometime after the 1989 harvest. The new agreement, T contends, permitted him to plant 100.7 acres of LL’s ground to wheat and to harvest those acres in 1990.
The dispute between the parties over the possession of the ground led to the filing of this action by LL. LL’s petition alleged that the lease was terminated August 1, 1989, and sought to eject T from the real estate and to recover $1,656 in damages.
T responded to the petition by filing a motion to dismiss for failure to state a claim. This motion was based on T’s argument that the notice to terminate was ineffective on its face and was insufficient to show that LL had terminated the tenancy.
After a hearing, the trial court ruled that the 1988 lease had been properly terminated by the notice on August 1, 1989.
In due time, T filed an answer to the petition and several counterclaims against LL. In his answer, T continued to claim that the notice given was ineffective to terminate the oral lease. The answer also alleged a new lease between the parties in 1989, giving T the right to plant 100.7 acres of wheat for harvest in 1990. The answer set up counterclaims for breach of a pasture lease, unjust enrichment, damages for destroying wheat, and other matters.
After the issues were finally identified, the case was set for jury trial. The trial court reiterated that it had already ruled on the termination of the 1988 lease and that this ruling was not subject to further debate. The case went to trial principally on the claim of T that a new oral lease was entered into between the parties in 1989.
The case was never submitted to the jury. Prior to T’s resting his case but after he had testified, the trial court took the case from the jury and entered judgment in favor of LL. The court ruled that T was attempting to rely entirely on his 1988 lease, which the court determined had already been terminated. The court held that T had offered insufficient evidence to show that a new lease between the parties had been entered into in 1989. No damages were awarded to either party.
T appeals from these rulings.
WAS THE NOTICE EFFECTIVE TO TERMINATE THE 1988 LEASE?
This case involves one issue of significant importance. That issue is whether the notice given was sufficient to terminate the farm tenancy. The answer to this question requires us to interpret and give meaning to K.S.A. 58-2506. While this may seem a simple task, it is far from that. Quite frankly, the efforts of the legislature to draft an equitable standard for the termination of farm tenancies in this state presents a confusing history. Over the years, judicial decisions perceived to be unfair to tenants have prompted legislation designed to blunt further application of those decisions. As a result, we now have a statute that requires the notice to fix the termination date as March 1 but construes that notice, under some circumstances, to terminate the tenancy on an entirely different date.
The factual situation presented in this case is the ultimate nightmare for those who draft statutes and those who must interpret them. The notice in this case does not fix the termination of the lease on the date mandated by statute. Instead, it fixes the termination date on the date the statute says shall be the construed date of termination. We search for a logical result to a rather illogical problem. We begin by conducting a historical review of the subject.
From at least 1923 to 1975, the statute governing the termination of oral farm tenancies was straightforward and subject to very little interpretation. G.S. 1949, 67-506 stated: “In cases of tenants occupying and cultivating farms, the notice must fix the termination of the tenancy to take place on the first day of March: . . . .”
There was an exception, not applicable here, for tenants holding over under a prior written lease. For oral farm tenancies, however, the only relevant date was March 1. There were no exceptions, no references to other dates,. and no consideration as to whether a crop had been planted or crop ground had been prepared for planting. A notice to terminate a farm tenancy had to terminate that tenancy on March 1, and it did terminate on that date regardless of the consequences. There was no construed date of termination.
Although the statute was simple and straightforward, it gave rise to some rather inequitable results. For example, in Fox v. Flick, 166 Kan. 533, 203 P.2d 186 (1949), the landlord sent the tenant a notice on December 20, 1946, terminating the tenancy effective March 1, 1947. The tenant pointed out that, on the date he received the notice, he had already worked the ground and planted the fall wheat crop, which was growing on that very date. If the lease were to terminate on March 1, 1947, it would deprive the tenant of the crop he had planted and result in a windfall to the landlord. This argument was to no avail. The statute made no exception for harvesting growing crops, and the tenant was unceremoniously ousted as of March 1, 1947. The Kansas Supreme Court cited Bank v. Jesch, 99 Kan. 797, 163 Pac. 150 (1917), and said: “The decision is a clear statement of the rule that even if a tenant is under the duty, by the terms of his lease, to sow a crop which does not mature until after his lease expires, he is not by that fact alone entitled to harvest the crop.” 166 Kan. at 540. This rather harsh statement was then put into practice. The tenant in Fox v. Flick was removed from possession of the real estate on March 1, 1947, and forfeited his interest in the wheat crop he had planted.
In 1975, the legislature rewrote the statute in an obvious effort to protect the rights of the tenant and eliminate results such as that of Fox v. Flick. The statute was then changed to read as follows (the emphasized language indicates the addition to the statute in 1975):
“In cases of tenants occupying and cultivating farms, the notice must fix the termination of the tenancy to take place on the first day of March: Provided, however, That as to that part of the farm which is planted to a fall seeded grain crop on cropland which has been prepared in conformance with normal practices in the area, the notice must fix the termination date of the tenancy to take place on the day following the last day of harvesting such crop or crops, or August 1, whichever comes first: . . . .” L. 1975, ch. 294, § 1.
In 1978, the statute was redrafted to read as follows:
“58-2506. (a) Except as may be otherwise provided by this section or by a written lease signed by the parties thereto, in cases of tenants occupying and cultivating farms, the notice to terminate such a farm tenancy must be given in writing at least thirty (30) days prior to the first day of March and must fix the termination of the tenancy to take place on the first day of March. Provided, however. -That
“(b) When a notice of termination is given pursuant to subsection (a) after a fall seeded grain crop has been planted, as to that part of the farm which is planted to a fall seeded grain crop on cropland which has been prepared in conformance with normal practices in the area, the notice must fi* the termination date ef the tenancy shall be construed as fixing the termination of the tenancy of such portion to take place on the day following the last day of harvesting such crop or crops, or August 1, whichever comes first.” L. 1978, ch. 215, § 2.
The next change was prompted by Grey v. Schmidt, 224 Kan. 375, 581 P.2d 1180 (1978). At the time Grey was filed, the 1978 version of the statute was in effect, but Grey dealt with the 1975 version of the statute. The result of Grey indicates that, while the legislature had provided the rights of the tenant to harvest a growing crop, it had neglected to provide for the situation where there was no growing crop and the tenant had prepared the ground for seeding. In Grey, the notice was served on June 30, 1976, and terminated the lease on March 1, 1977, except for that part sown to growing wheat which was terminated August 1, 1976, pursuant to the statute. The problem came in timing. On June 30, 1976, the wheat was ready to harvest and was harvested within two weeks. The tenant had summer fallow for the 1977 crop, which would be planted in the fall of 1976, but not harvested until after the lease had expired. The tenant argued that he should be able to reenter and harvest in 1977. The Supreme Court held otherwise:
“On June 30, 1976, when the notice was received, the tenants had a wheat crop planted. The last day of harvest of this crop was July 6, 1976. Some of the other land was in summer fallow, which was to have been planted in wheat in the fall. So, the answer to the question, is a fall seeded grain crop planted, would have been affirmative if asked on June 30, 1976, but negative if asked on July 15, 1976 (after the harvest). Tenants did not have greater rights as to tenancy on June 30, 1976, than they did two weeks later. Words in common usage are to be given their natural and ordinary meáning in arriving at the proper construction of a statute [Citations omitted]. In K.S.A. 58-2506 (in effect in 1976) ‘is planted’ means presently planted. We view the 1978 amendment of the language to ‘after a fall seeded grain crop has been planted’ as a clarification rather than a change in its effect.
“After the 1976 wheat crop was harvested, there was no land presently planted in a fall seeded grain crop. Therefore, the effective termination date for the entire tract was March 1, 1977. The tenants, after receiving the termination notice, proceeded to prepare and plant another wheat crop. They did so at their own risk. Indeed, the notice expressly prohibited such endeavor.” 224 Kan. at 377-78.
The result of Grey v. Schmidt was obviously inequitable, and it presented certain other problems. The lease did not expire until March 1, 1977, and the landlord had no right to possession until that time. A tenant whose lease was to terminate effective March 1 would be foolish to plant land to wheat in the fall when he could not harvest that crop the next year. It was obvious that, under Grey v. Schmidt, a potential existed for many acres to lay idle unless changes were made to accommodate the tenant who had worked the ground but had not planted the fall crop at the time the notice was given.
The 1979 legislature attempted to deal with Grey v. Schmidt by amending K.S.A. 58-2506 to add a new subsection (c), which then read as follows:
“(c) When a termination of [sic] notice is given pursuant to subsection (a) after the thirtieth day preceding March 1 and prior to the planting of a fall seeded grain crop on cropland which has been prepared in conformance with normal practices in the area, in any year in which a fall seeded grain crop has been or will be harvested, the notice shall be construed as fixing the termination of the tenancy of that part of the farm devoted to fall seeded grain crops on the day following the last day of harvesting such crop or crops in the succeeding year or August 1 of such succeeding year, whichever comes first.” L. 1979, ch. 175, § 1.
The emphasized language was the only substantial change made to the statute. The statute underwent very minor changes in 1981, but, in substance, has been unchanged since 1979.
We are concerned only with subsection (c), which was designed to obviate the decision in Grey v. Schmidt.
As we view the various versions of the statute, several goals become obvious. They are: (1) Retain March 1 as the basic date for terminating farm tenancies. The justification for this appears purely historical. That date is particularly appropriate if there is no land devoted to grain farming and/or no fall seeded grain crops. It is a very bad date, however, if there are fall seeded grain crops or fallow ground the tenant has prepared for seeding a fall crop. (2) Protect tenants who have planted a fall seeded crop so that they can reenter after March 1 and harvest that crop. This is accomplished by K.S.A. 58-2506(b), which uses either the day following the last day of harvest or August 1 to terminate the lease as to growing crops. (3) Render Grey v. Schmidt impotent. This was done by K.S.A. 58-2506(c), which extends the tenancy until after the harvest of the succeeding year where the notice is given under circumstances described in the statute.
Although great confusion can result from contemplating the statutorily designed notice, we can reach some conclusions: (a) A notice fixing the date of termination on March 1 is sufficient to terminate an oral farm lease which falls within the statute, regardless of the circumstances. There is no need to refer to any other date or to growing crops or land prepared for growing crops. A notice fixing the termination date as March 1 will terminate the lease as to growing fall seeded crops on August 1 or the day after harvest. Such a notice will terminate the tenancy in the succeeding year on the day after harvest or August 1 under the circumstances described in K.S.A. 58-2506(c). The use of any date other than March 1 is not required, (b) In Buckle v. Caylor, 10 Kan. App. 2d 443, 445, 700 P.2d 979 (1985), Judge Abbott (now Justice Abbott) stated: “[W]e believe that a notice to terminate tenancy which sets forth a termination date ‘pursuant to K.S.A. 58-2506(d)’ is sufficient to comply with 58-2506(d).” We believe that the same can be said as to a notice pursuant to K.S.A. 58-2506(a), (b), or (c). Indeed, the simplest way to terminate a farm lease may be to simply state that it is terminated “pursuant to K.S.A. 58-2506(a), (b), (c), or (d).”
Having stated the obvious, we next turn to the notice in this lawsuit. In so doing, we enter uncharted territory. This is a case of first impression. The notice in this case did not “fix the termination of the tenancy to take place on March 1.” We could simply agree with T and hold that the notice was ineffective because of its failure to use the date of March 1. While that result may be the most simplistic, it defies logic and offends one’s sense of justice and reason. The notice in this case did not use the magic date of March 1, but it did terminate the tenancy on the precise date ultimately contemplated by statute. Had this notice fixed the termination date as March 1, 1989, it would have been construed to terminate the tenancy on August 1, 1989. The notice advised the tenant that his lease would terminate August 1, 1989. The question, then, is whether this notice was defective because it used the actual date of termination rather than the preferred but fictional date of March 1. We think not.
To reach this conclusion, we hold that the notice in this case was in substantial compliance with the provisions of the statute and was effective to terminate the lease on August 1, 1989. The conclusion is supported by well-known rules of statutory construction.
The interpretation of a statute is a question of law, and the function of the court is to give the statute the effect intended by the legislature. State ex rel. Stephan v. Kansas Racing Comm'n, 246 Kan. 708, 719, 792 P.2d 971 (1990). The cardinal rule of statutory construction, to which all others are subordinate, is that the purpose and intent of the legislature governs when the intent can be ascertained from the statute. 246 Kan. at 719; Gnadt v. Durr, 208 Kan. 783, 785, 494 P.2d 1219 (1972); Brown v. Tubbs, 2 Kan. App. 2d 522, 525, 582 P.2d 1165 (1978).
A statute should not be given a construction that leads to uncertainty, injustice, or confusion if it is. possible to construe it otherwise. State ex rel. Stephan v. Kansas Racing Comm'n, 246 Kan. at 719; Lakeside Village Improvement Dist. v. Jefferson County, 237 Kan. 106, 113, 697 P.2d 1286 (1985). A construction of a statute should be avoided which would render the application of the statute impractical or inconvenient, or which would require the performance of a vain, idle, or futile thing, or attempt to require the performance of an impossible act. In re Adoption of Baby Boy L., 231 Kan. 199, Syl. ¶ 8, 643 P.2d 168 (1982). A statute subject to interpretation is presumed not to have been intended to produce absurd consequences, but to have the most reasonable operation that its language permits. If possible, doubtful provisions should be given reasonable, rational, sensible, and intelligent constructions. 231 Kan. at 209; In re Gantz, 10 Kan. App. 2d 299, 301, 698 P.2d 385, rev. denied 237 Kan. 887 (1985).
A statute is not to be given an arbitrary construction according to the strict letter, but one that will advance the sense and meaning fairly deducible from the context. Mahone v. Mahone, 213 Kan. 346, 350, 517 P.2d 131 (1973); Brown v. Tubbs, 2 Kan. App. 2d at 525. When the interpretation of one section of an act, according to the exact and literal import of its words, would contravene the manifest purpose of the legislature, the entire act should be construed according to its spirit and reason, disregarding so far as may be necessary the strict letter of the law. Kansas Commission on Civil Rights v. Howard, 218 Kan. 248, 252, 544 P.2d 791 (1975).
The doctrine of substantial compliance permits us to recognize as effective a notice which complies with the spirit and intent of the law but not with its absolute letter. Substantial compliance requires “compliance in respect to the essential matters necessary to assure every reasonable objective of the statute.” Banzer v. City of Wichita, 237 Kan. 798, 801, 703 P.2d 812 (1985). See In re Petition of City of Shawnee for Annexation of Land, 236 Kan. 1, 13, 687 P.2d 603 (1984). We see nothing in the statute which prohibits application of the substantial compliance doctrine. In fact, as we noted in Buckle v. Caylor, 10 Kan. App. 2d at 445, this statute “lacks a critical feature often found in mandatory legislation, which is a provision describing the consequences of noncompliance. Paul v. City of Manhattan, 212 Kan. 381, 511 P.2d 244 (1973).” The absence of such a provision invites application of the theory of substantial compliance.
The notice in this case does not comply in every respect with the statutory requirements. It does, however, fix the day of termination on the precise date the statute prescribes to be the “construed” date of termination. The notice protects all of the tenant’s rights, which the legislature has sought to protect under K.S.A. 58-2506(c). To hold this notice ineffective would produce an absurd consequence. By applying the doctrine of substantial compliance, we can produce a result entirely in line with the statutory scheme. Our result will advance the sense and meaning of the statute. A contrary result would only be dictated by an arbitrary construction of the strict letter of the statute.
We hold that the notice given to T by LL was in substantial compliance with the requirements of K.S.A. 58-2506(c) and was effective to terminate the tenancy as of August 1, 1989.
DID THE TRIAL COURT ERR IN DIRECTING A VERDICT IN FAVOR OF LL?
After T had completed his testimony but prior to the resting of his case, the trial court summarily terminated the litigation in favor of LL. In doing so, the trial court remarked:
“THE COURT: Gentlemen, I’ve heard the arguments and I’ve given this some reflection over the noon hour also, because I could see based upon the testimony of Mr. Roberts it was coming. You know, I think I frankly told you that in chambers.
“I’m going to sustain Mr. Boone’s motion on the items that he’s requested it to be done, particularly on res judicata, but further it was my understanding that we had, that this suit as this time was based on a subsequent agreement in the Fall of 1989. I think the pretrial order reflects that. That has not been supported by the testimony of your client. He has operated under the theory that he had a continuing lease of 1988 and I have ruled on that and I did so, I think, back in March.
“The only reason I let this go on is because I understood that there was a question to go to the jury concerning a subsequent agreement that occurred after the harvest of 1989 and prior to the planting of 1990. The evidence does not support that. Therefore, your motion is sustained. Mr. Boone, you’ll draft a journal entry accordingly. The jury is discharged.”
Although the order of the trial court was not given any particular designation, it had the effect of directing a verdict in favor of LL.. .Our standard of review, therefore, will be that applied in cases of a directed verdict.
We hold that the trial court terminated the litigation prematurely in favor of LL. It did so under the apparent theory that T’s testimony did not support a new oral agreement between the parties. We disagree with the trial court’s conclusions concerning the evidence of that agreement.
The trial court correctly ruled in favor of LL on all issues arising from the original lease of 1988. The parties and the trial court refer to “res judicata” as forming the basis of the trial court’s action. This was not a case in which that doctrine applied. The trial court had previously ruled that the 1988 lease was terminated, and that issue was finally resolved. To the extent T sought to further litigate that issue or to submit it to the jury, the trial court correctly ruled in favor of LL. This ruling was not res judicata but more appropriately a decision that T was not permitted to litigate an issue previously determined by the court. The parties were bound by the decision that the lease was terminated and that was the law of the case. There was no error in directing a verdict on this issue.
However, there were other issues involved. In particular, T contended that his claim to the 1990 wheat crop was based on a new and different agreement between the parties. T testified that, after harvest in 1989, LL gave him permission to plant 100.7 acres of wheat for harvesting in the summer of 1990. We hold that the trial court erred in directing a verdict on that issue.
The motion for a directed verdict is provided for by K.S.A. 1991 Supp. 60-250. A prerequisite to the entertaining and granting of a motion for a directed verdict is that all of the evidence on the issue in question must be presented. Hodges v. Lister, 207 Kan. 260, Syl. ¶ 2, 485 P.2d 165 (1971).
“K.S.A. 60-250 allows a litigant to move for a directed verdict, and for judgment notwithstanding the verdict. In ruling on a motion for directed verdict pursuant to K.S.A. 60-250, the court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought and where reasonable minds could reach different conclusions based on the evidence, the motion must be denied and the matter submitted to the jury. This rule must also be applied when appellate review is sought on a motion for directed verdict. Sampson v. Hunt, 233 Kan. 572, Syl. ¶ 1, 665 P.2d 743 (1983).” (Emphasis added.) Turner v. Halliburton Co., 240 Kan. 1, 6-7, 722 P.2d 1106 (1986).
We have reviewed the record in this case in the light of the standard quoted above. When all facts and inferences are resolved in favor of T, there remains a submissible issue on whether the parties entered into a new oral lease in 1989. Counsel for LL points to certain areas in his cross-examination as showing that T was relying only on the original 1988 lease. The interpretation of T’s testimony depends on which “spin” is applied to it. Despite potentially damaging admissions, T’s testimony, when all inferences are resolved in his favor, is consistent with his theory that there was a new lease for the 1990 wheat crop. Reasonable minds could reach different conclusions concerning this issue. It was an issue to be resolved by the jury.
The trial court terminated T’s presentation prior to the resting of his case. The only witness who had testified was T. The trial court should have permitted T to present his other evidence on the subject before ruling on the motion. It is a prerequisite to the granting of a motion for directed verdict that all the evidence on the issue in question must have been presented. It was, therefore, error for the trial court to direct a verdict prior to T’s resting of his case.
T also asserted several counterclaims against LL. One of those claims was based on a lease of pasture ground, and the resolution of that claim appears to be entirely unrelated to the termination of the 1988 lease or whether the parties entered into a second lease in 1989. There appear to be unresolved issues on the counterclaims submitted by T. We are unable to tell from reading the record how these counterclaims could have been resolved on the basis of the evidence presented. At retrial, the factual basis for the counterclaims must be determined after all the evidence is submitted and a decision made at that time as to which of these claims needs to be submitted to the jury.
LL contends that T waived or lost the right to set up his counterclaims. LL argues that, by filing a motion to dismiss instead of an answer and counterclaims, T was barred from asserting his conterclaims by K.S.A. 1991 Supp. 60-213(a).
We disagree with LL’s interpretation of the compulsory counterclaim statute.
Decisions of the Kansas Supreme Court on this issue have indicated that one can be barred from asserting compulsory counterclaims in a subsequent action. See Mohr v. State Bank of Stanley, 241 Kan. 42, 51, 734 P.2d 1071 (1987); Haysville State Bank v. Hauserman, 225 Kan. 671, 594 P.2d 172 (1979); Stock v. Nordhus, 216 Kan. 779, 781, 533 P.2d 1324 (1975).
The problem with LL’s theory is that, despite T’s motion to dismiss, this action was not dismissed. The counterclaims of T were not submitted in a subsequent action, but were submitted in the same action. There is no support for the proposition that, by filing a motion to dismiss, one waives the right to assert counterclaims in the. same action regardless of the decision on the motion to dismiss. LL’s argument that T somehow waived the right to submit the counterclaims is without merit.
The decision terminating the 1988 lease is affirmed. The action of the trial court in “directing a verdict” for LL on the existence of the 1989 lease is reversed and remanded for a new trial. On remand, particular attention should be paid to resolving the various counterclaims alleged by T.
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Lewis, J.:
Defendant Janette G. Cramer appeals her jury conviction of involuntary manslaughter. Defendant was sentenced to a term of three to five years’ incarceration and was denied probation under K.S.A. 1991 Supp. 21-4618. She also appeals her sentence.
This is a case of an abused wife who terminated her marriage and any future abuse by fatally shooting her husband. Prior to the night of the shooting, defendant’s life with the victim appears to have been one of abuse and pain.
Defendant and William Cramer were married in July 1987. The record indicates that William first began to beat defendant nine days prior to their wedding and that he continued to beat her on a regular basis up to the time of his death. It would serve little good to recite the details of all of the beatings inflicted by William on defendant. The record shows that there were many, that they were regular, and that they were accompanied by verbal abuse as well. Some of these beatings were so violent that defendant was hospitalized as a result. On one occasion, William picked defendant up and attempted to “hang” her on a nail protruding from a wall. The nail punctured her back and left a scar running up to her shoulder. Frequently, both parties were drinking when these violent episodes took place.
Finally, defendant sued William for divorce. She obtained a restraining order, which did not restrain William, who continued to beat and threaten her. After one of these beatings put defendant in the hospital, a friend gave her a handgun for protection. It is noted that, on the night of William’s death, defendant placed the handgun in a strategic position in her house.
On the evening of William’s death, he came to defendant’s home with her permission. He came to discuss their divorce and brought along a supply of beer and liquor. The two parties apparently sat down at the table and began to drink and discuss the terms of their divorce. As the evening wore on, William became more angry and, finally, began to pound on the table. He started to verbally abuse defendant and stood up and stepped towards her. According to defendant, she got up and retrieved the handgun from where she had placed it. She pointed the gun at William and said, “[You’re not] going to beat on me again.” William apparently laughed, took one step forward, and defendant shot him in the chest. William was either dead on arrival at the hospital or died shortly thereafter. According to the postmortem reports, the bullet wound was not necessarily fatal but, as a result of that gunshot, William bled to death.
Defendant was charged with second-degree murder. Her defense was self-defense, based on the battered woman’s syndrome. After a three-day trial, the jury returned a verdict, finding her guilty of involuntary manslaughter.
At her sentencing, defendant -argued that to deny her probation amounted to “manifest injustice” under K.S.A. 1991 Supp. 21-4618(3). After listening to defendant’s arguments, the trial court denied her probation because of her use of a firearm and the provisions of K.S.A. 21-4618(1) and (2).
She appeals her conviction and sentence. After careful consideration, we affirm on both counts.
SPECIFIC INSTANCES OF PAST CONDUCT
Defendant argues that the trial court erred in admitting evidence of specific instances of past conduct between defendant and third parties. This evidence was not complimentary to defendant and may have been prejudicial. The trial court determined that, despite its potential prejudice, the evidence was admissible. We agree with that conclusion.
In order to prove her battered woman’s syndrome defense, defendant introduced the expert testimony of Dr. Stephen E. Peterson, a psychiatrist at the Menninger Clinic. He testified that, in his opinion, defendant was suffering from the battered woman’s syndrome. He reached this diagnosis after a two-day examination of defendant. As a result of that examination, Dr. Peterson prepared an extensive report that gave specific details about defendant’s past life and experiences. A portion of this report described several instances of violent conduct between defendant and other parties.
The State of Kansas countered Dr. Peterson’s testimony by introducing testimony of Dr. Alice Brill. Dr. Brill is also a psychiatrist, and she testified that, in her opinion, defendant did not suffer from the battered woman’s syndrome. Dr. Brill’s opinion was based in large part on the evidence of specific instances of past conduct, to which defendant objects.
Defendant’s argument is that the evidence was so prejudicial that it should not have been admitted.
The State argues that the evidence was probative and admissible. It points out that much of the evidence came in as a result of the cross-examination of Dr. Peterson. Basically, the State argues that this testimony was admissible to rebut the diagnosis of the battered woman’s syndrome testified to by Dr. Peterson.
Defendant is particularly aggrieved by the testimony of Melvin Fox. A recounting of his testimony will serve to illustrate the type of evidence to which defendant objects. Fox was called as a rebuttal witness by the State of Kansas. He testified that he had had a relationship of sorts with defendant. He described in graphic detail one occasion when he was in the bathroom, throwing up after a drinking spree. He testified that, while he was in this rather vulnerable state, defendant entered the bathroom wearing only steel-toed biker boots and proceeded to kick him several times.
Dr. Brill referred to the incident described by Fox in support of her opinion that defendant was not suffering from the battered woman’s syndrome. Dr. Brill used other instances involving defendant and third parties in stating that defendant did not suffer from the battered woman’s syndrome. Defendant insists that the testimony of Fox and the use of other instances of her past conduct were intended to prejudice the jury against her.
The admission of evidence is always subject to the discretion of the trial court. State v. Davis, 213 Kan. 54, 57, 515 P.2d 802 (1973). In order to reverse defendant’s conviction, we must conclude that the trial court abused its discretion:
“Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. [Citation omitted.]” State v. Wagner, 248 Kan. 240, 242, 807 P.2d 139 (1991).
In this instance, we find no abuse of discretion in admitting the evidence under discussion.
Testimony concerning the specific instances complained of by defendant was elicited by the State in an effort to cast doubt upon Dr. Peterson’s diagnosis of the battered woman’s syndrome. On cross-examination, Dr. Peterson was cross-examined about an incident at a wedding party where defendant physically fought with another woman. Another incident concerned an altercation between defendant and a male bouncer at a tavern.
Dr. Brill, the State’s expert witness, referred to these incidents as inconsistent with those characteristics associated with the battered woman’s syndrome.
Defendant asserts that this case is analogous to State v. Stellwagen, 232 Kan. 744, 659 P.2d 167 (1983). We do not agree. Stellwagen concerned the rape shield act and held that a rape victim’s prior sexual activity is generally inadmissible because prior sexual activity, even with the accused, does not imply consent. In the instant matter, the acts complained of are those of defendant, not the victim. The rape shield act is an attempt to “further the strong state interest in protecting the rape victim.” 232 Kan. at 747. We see no analogy between that case and the instant matter.
Defendant argues that the court was inconsistent in its evidentiary rulings. She points out that the court refused to admit into evidence testimony regarding William’s assault on a law enforcement officer. She contends this evidence should have been admitted and cites State v. Mason, 208 Kan. 39, 490 P.2d 418 (1971), as support for that contention.
Defendant misreads Mason. Mason held: “Where self-defense is ah issue in a homicide case, evidence of the turbulent character of the deceased is admissible. Such evidence may consist of the general reputation of the deceased in the community, but specific instances of misconduct may be shown only by evidence of conviction of a crime.” (Emphasis added.) 208 Kan. 39, Syl. ¶ 1. There is no evidence in this case that William was convicted of assault on a law enforcement officer. There was no error in holding this evidence to be inadmissible.
The evidence of past conduct by defendant was certainly not complimentary to her. However, defendant opened the door to such testimony by her reliance on the battered woman’s syndrome as a defense. The State had every right to rebut that defense, and it did so, in part, by using specific instances of past conduct between defendant and third parties. Indeed, these specific instances were relied upon by the State’s expert to support her opinion that defendant did not suffer from the battered woman’s syndrome. While the evidence may have been prejudicial, it was certainly probative to the issue at hand. The evidence complained of was proper rebuttal.
“Rebuttal evidence is that which contradicts evidence introduced by an opposing party .... [I]t may refute or deny some affirmative fact which an opposing party has attempted to prove. It may be used to explain, repel, counteract or disprove testimony or facts introduced by or on behalf of the adverse party .... The use and extent of rebuttal rests in the sound discretion of the trial court and its ruling will not be reversed unless it appears the discretion has been abused to a party’s prejudice.” State v. Richard, 235 Kan. 355, Syl. ¶ 1, 681 P.2d 612 (1984).
In the final analysis, the trial court determined that the probative value of the evidence outweighed the prejudicial effect of that evidence. This was a proper decision for the trial court, and we will not substitute our judgment for that of the trial court on this issue.
LIMITING INSTRUCTION
Defendant contends that, if the evidence discussed in the earlier section was properly admitted, the trial court erred in failing to give the jury an instruction limiting consideration of that evidence to the question of whether defendant was suffering from the battered woman’s syndrome.
Defendant contends specifically that the rationale found in State v. Green, 232 Kan. 116, 652 P.2d 697 (1982), is applicable to the instant matter. In that decision, the Kansas Supreme Court ruled that, where evidence was admitted solely under K.S.A. 60-455, a limiting instruction should be given.
Under K.S.A. 60-455, evidence that a person committed a crime or civil wrong on a specified occasion is inadmissible to prove a disposition by that person to commit crime or civil wrong. However, such evidence is admissible to prove such facts as “motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” When evidence is admitted to prove a material fact such as those cited above, a limiting instruction is required.
In this case, the State argues that it did not seek to present the evidence to prove any of the facts described under K.S.A. 60-455. The State says that it sought to introduce the evidence to attack the diagnosis of Dr. Peterson and that this evidence was admissible for that purpose under K.S.A. 60-447. We agree with the State’s position in this regard.
The evidence complained of was not admitted or used by the State to prove any material facts such as those described above. It was admitted to counter the expert opinion and diagnosis of Dr. Peterson and to provide support for the expert opinion of Dr. Brill. Under these circumstances, we conclude that no limiting instruction was required.
We note that no limiting instruction was proposed by defendant at trial, and she did not object to the instructions given. Ordinarily, the absence of an objection to a jury instruction precludes a party from challenging the sufficiency of such an instruction on appeal. Under these circumstances, reversible error can only be found in the event that the instruction was “clearly erroneous.” State v. DeMoss, 244 Kan. 387, 392, 770 P.2d 441 (1989). “The failure to give an instruction is clearly erroneous only if the reviewing court reaches a firm conviction that if the trial error had not occurred there was a real possibility the jury would have returned a different verdict.” 244 Kan. at 392.
Under the circumstances shown, we are unable to conclude that the failure to give a limiting instruction was clearly erroneous.
TESTIMONY OF CORROBORATING WITNESS
Defendant sought to introduce the testimony of Tricia Norton. The purpose of her testimony was to corroborate an incident in which William had beaten defendant. On this specific occasion, defendant had sought safe haven in the home of Ms. Norton.
Unfortunately, Ms. Norton could not remember the date on which defendant had come to her home. The State objected to Ms. Norton’s testimony because the lack of a specific date resulted in inadequate foundation being laid for the testimony. The trial court sustained that objection, and Ms. Norton was not permitted to corroborate defendant’s testimony as to this particular incident.
Our review of the record convinces us that the trial court erred in rejecting the testimony of Ms. Norton. When the record is reviewed, it is apparent that, despite Ms. Norton’s faulty memory, the incident had to have taken place within a specific four-month period of time. On the whole, we believe that an adequate foun dation was laid for Ms. Norton s testimony and that the trial court erred in sustaining the objection of the State.
Not all errors are reversible error. “Errors which do not affirmatively appear to have prejudicially affected the substantial rights of the party complaining do not require reversal when substantial justice has been done.” State v. Bell, 239 Kan. 229, 235, 718 P.2d 628 (1986).
The incident which Ms. Norton would have described had already been described by defendant. The State had cross-examined defendant as to that incident, and a considerable amount of testimony had been developed concerning that particular beating of defendant by William. The testimony of Ms. Norton was merely cumulative to the testimony already provided by defendant. We cannot say, from our examination of the record, that the exclusion of Ms. Norton’s testimony affected the substantial rights of defendant. We are unable to conclude that a different verdict would have been rendered had the jury heard Ms. Norton. The beating of defendant by William which Ms. Norton could corroborate was only one of many beatings. During the course of this trial, other corroborative witnesses testified that defendant was beaten by William. Moreover, the State’s expert witness conceded that defendant was a battered woman. We conclude that the error in regard to the testimony of Ms. Norton was harmless error only and does not require a reversal of defendant’s conviction.
JURY QUESTION AND INSTRUCTIONS
The defense in this lawsuit was self-defense. This was based on the contention that defendant suffered from the battered woman’s syndrome and perceived that she was protecting herself from imminent danger in shooting William.
The trial court gave a self-defense instruction from PIK Crim. 2d 54.17 as modified by recent Supreme Court decisions on the issue. We note that defendant interposed no objection to the giving of this self-defense instruction and does not appear to raise an issue in her brief as to the contents of the instruction. The self-defense instruction is not, therefore, an issue on this appeal.
After the jury had retired and begun its deliberation, it submitted a question. This question bracketed the following language from the self-defense instruction: “Such justification requires both a belief on the part of the defendant and the existence of facts that would persuade a reasonable person to that belief. ” The jury then asked the following question:
“Does this mean:
(1) That a reasonable person, in the same situation, would choose the same.
or
(2) That a reasonable person, would believe that she believed that was her only option.
“Need last part clarified please.
‘7s/ Gilbert Widows”
After, receiving the question, the trial court adjourned the trial and retired to chambers with all parties and counsel present to formulate an answer to the question. After considerable discussion on the issue, the prosecuting attorney stated: “MR. PIERCE: I would request that we answer this question by providing the jurors with the syllabus, and that would be syllabus number 5 in State v. Stewart.”
The narrative continues with the court asking defense counsel for his opinion:
“THE COURT: Mr. Craig.
“MR. CRAIG: I’m very concerned by the narrowness of these questions, and to say yes and yes would show that this narrowness was appropriate. What I mean is that the question that a reasonable person in the same situation would choose the same doesn’t really have any support in the statute or in the — in the instruction. What it says is that it was necessary to defend herself. In other words, not that a reasonable person would have necessarily made the same choice, but that the choice was a reasonable choice.
“Also on the second question, that is a reasonable person would believe that she believed that was her only option, I’m concerned by the use of the term only option; and to say yes and yes would be to confirm that she would have to determine that this was her only option and I’m very concerned by that, because I don’t [think] the instruction requires a determination that this was her only option, only that it was a reasonable option under an objective and subjective standard. I really don’t have a problem with setting out the standard that’s in the syllabus that Mr. Fierce suggested.
“THE COURT: If that’s the case and both parties want to give that instruction I wouldn’t give it out of the syllabus, but I’ll give it out of page 649.” (Emphasis added.)
The case discussed by the parties is State v. Stewart, 243 Kan. 639, 763 P.2d 572 (1988). The trial court then answered the jury’s question by reading them the following language from page 649 of State v. Stewart:
“Our test for self-defense is a two-pronged one. We first use a subjective standard to determine whether the defendant sincerely and honestly believed it necessary to kill in order to defend. We then use an objective standard to determine whether defendant’s belief was reasonable — specifically, whether a reasonable person in defendant's circumstances would have perceived self-defense as necessary.” (Emphasis added.)
We note that the language quoted above, while taken from page 649 of the opinion, is exactly the same language which is used at Syl. ¶ 5 of the opinion.
After participating in the drafting of the answer to the jury’s question, defendant now argues that the trial court erred in giving that answer and asks that we reverse the conviction as a result.
The record shows that the answer given by the trial court which defendant now claims is error was given at the joint request of the State and defendant. After the prosecuting attorney suggested the language used, defense counsel responded by saying: “I really don’t have a problem with setting out the standard that’s in the syllabus that Mr. Pierce suggested.” We could not have a more clear-cut case of acquiescence in the giving of the answer. Indeed, defense counsel joined the State in requesting that the answer be given as suggested by the prosecuting attorney. Defendant should not be permitted to join in a request for specific language to be used in answering the jury’s question and then on appeal claim that the court erred in using that language.
If the language used to answer the jury’s question was erroneous, then it was error invited by defendant. “A litigant may not invite and lead a trial court into error and then complain of the trial court’s action on appeal.” State v. Prouse, 244 Kan. 292, 298-99, 767 P.2d 1308 (1989).
In State v. Gray, 235 Kan. 632, 635-36, 681 P.2d 669 (1984), the defendant, on appeal, complained about the failure of the trial court to give a limiting instruction:
“On this issue, it should also be pointed out that the record clearly shows that the trial court offered to give a limiting instruction and was willing to do so but did not give such an instruction because defense counsel on the record objected to the limiting instruction. Under the circumstances, the defendant has no right to complain. The rule is well established that a litigant may not invite error and then complain of that error on appeal. [Citation omitted.]”
In this case, the trial court was invited by defendant to give the answer of which defendant now complains. Under our law, defendant may not invite the trial court to take a certain action and then raise that action as error. See State v. Salton, 238 Kan. 835, 837, 715 P.2d 412 (1986); State v. Falke, 237 Kan. 668, 682, 703 P.2d 1362 (1985); State v. Reynolds, 230 Kan. 532, 535-36, 639 P.2d 461 (1982).
Although we rest our decision on the fact that defendant invited error, we will briefly treat the merits of defendant’s argument. Defendant argues that the trial court should have advised the jury that the objective test is whether a “reasonably prudent battered woman would have perceived self-defense as necessary.” We disagree.
First of all, we fail to see how the jury could have been confused by the response given to its question. The defense in this case was self-defense, based on the battered woman’s syndrome. The record is replete with evidence of repeated beatings inflicted upon defendant by William. Both expert witnesses agreed that defendant was a battered woman. To advise the jury that the objective test was “whether a reasonable person in defendant’s circumstances would have perceived self-defense as necessary” was to advise the jury to judge defendant’s conduct as that of a battered spouse. We see no other way the jury could have perceived the court’s instructions and the use of the term “in defendant’s circumstances.” Defendant’s circumstances in this case were those of. a battered woman being advanced upon by her battering spouse. The instruction sufficiently advised the jury that it should consider whether a person in defendant’s circumstances would perceive self-defense as necessary. We consider that to have been a proper answer to the question and one which could not possibly have confused the jury.
We have reviewed the most recent Supreme Court holdings concerning instructions where a battered spouse is defending against a charge of homicide. These decisions are State v. Hodges, 239 Kan. 63, 716 P.2d 563 (1986); State v. Osbey, 238 Kan. 280, 710 P.2d 676 (1985); and State v. Hundley, 236 Kan. 461, 693 P.2d 475 (1985). In addition, State v. Stewart, 243 Kan. 639, from which the jury’s question was answered, dealt with the case of a battered spouse.
Although the Supreme Court has used language in some of these opinions to indicate an objective test of how a reasonably prudent battered woman would react, we think these utterances are dicta. We find nothing in the Supreme Court’s holdings to require the use of that language in instructions used in cases of this nature. The statement on which defendant relies was first made in State v. Hundley, 236 Kan. 461. We note that it was not the holding of the Hundley case. Hundley, a battered woman case, held that PIK Crim. 2d 54.17 was erroneously used because it used the word “immediate” instead of “imminent.” Hundley did not require that the instruction employ the use of the words “reasonably prudent battered woman.” The Supreme Court in Hundley was sufficiently specific in requiring replacement of the word “immediate” with the word “imminent” in PIK Crim. 2d 54.17 and, had it believed that that instruction should employ the use of the term “reasonably prudent battered woman,” we presume it would have said so. It did not. State v. Oshey and State v. Hodges were both cases in which the conviction was reversed because of the use of the word immediate instead of the word imminent in PIK Crim. 2d 54.17. Once again, the Supreme Court had an opportunity in those two decisions to require the use of the “reasonably prudent battered woman” language in PIK Crim. 2d 54.17, yet it did not do so. Although State v. Stewart repeats the “reasonably prudent battered woman” language, it certainly does not stand for any requirement that that language be used in an instruction. Indeed, State v. Stewart held that the trial court erred in giving a self-defense instruction under the circumstances shown.
In summary, our reading of the Supreme Court decisions concerning battered women reveals no requirement that a jury be advised that it must employ an objective test based on how a “reasonably prudent battered woman” would react to a threat. Indeed, to employ such language would modify the law of self-defense to be more generous to one suffering from the battered woman’s syndrome than to any other defendant relying on self- defense. The Supreme Court in State v. Stewart expressly disavowed any such interpretation of the law. See 243 Kan. at 648.
Under the facts shown, the trial court’s answer to the jury’s question correctly stated the law and was not confusing or misleading. Defendant’s position on the merits of this issue is unpersuasive. Despite this belief, we rest our decision on the “invited error” doctrine.
MANIFEST INJUSTICE
The defendant in this case was convicted of the crime of involuntary manslaughter, as defined by K.S.A. 21-3404. This crime was committed with the use of a firearm. Under these circumstances, the mandatory sentencing provisions of K.S.A. 1991 Supp. 21-4618 are applicable. This statute requires mandatory imprisonment under the circumstances shown. The trial court sentenced defendant under K.S.A. 1991 Supp. 21-4618(1) and (2) and denied her application for probation or assignment to a community corrections program. Defendant argued that the trial court erred in sentencing her in this manner.
Defendant argues that K.S.A. 1991 Supp. 21-4618(3) applied and that her sentencing amounts to manifest injustice. K.S.A. 1991 Supp. 21-4618(3) reads as follows: “The provisions of this section shall not apply to any crime committed by a person where such application would result in a manifest injustice.”
It is defendant’s position that, in her case, imposition of mandatory imprisonment constitutes manifest injustice.
In a very recent decision, we dealt with a similar question. Although we concluded that the term “manifest injustice” as used in the statute was not possible of exact definition, we said: “A sentence which is ‘obviously unfair’ or ‘shocking to the conscience’ accurately and permissibly characterizes one which would result in manifest injustice.” State v. Turley, 17 Kan. App. 2d 484, Syl. ¶ 2, 840 P.2d 529 (1992).
In Turley, we concluded that a sentence which “shocks the conscience of the court” is manifestly unjust. This is similar to saying that, while it is difficult to define “pornography,” one will most certainly know it when he or she sees it. While this may not be an entirely satisfactory definition, we believe it to be the only definition possible.
In the first instance, the sentencing court in this state is the trial court. “A sentence imposed will not be disturbed on appeal if it is within the limits prescribed by law and the realm of trial court discretion and not a result of partiality, prejudice, oppression, or corrupt motive.” State v. Brown, 249 Kan. 698, Syl. ¶ 9, 823 P.2d 190 (1991). Our standard of review in the ordinary sentencing case is abuse of discretion. We conclude that this is the standard of review to be applied in a case of this nature together with the use of the “shocking to the conscience” philosophy.
K.S.A. 1991 Supp. 21-4618 applies in all cases unless the application would result in “manifest injustice.” The legislature has not given us a definition of the term “manifest injustice.” Until it does so, we hold that the determination of whether a sentence has resulted in manifest injustice must be made on a case-by-case basis under a “shocking to the conscience” consideration; that is, whether the trial court has abused its discretion by imposing a sentence which is obviously unfair and shocks the conscience of the court.
We have reviewed the record carefully in the instant matter. We conclude that the trial court considered all of the necessary sentencing factors required by statute in making its decision. After weighing these factors and taking into consideration all mitigating and aggravating circumstances, the trial court concluded that the application of K.S.A. 1991 Supp. 21-4618(1) and (2) would not result in manifest injustice. It is not our position to second-guess the trial court in matters of sentencing. The trial judge heard all of the testimony, observed the witnesses, and had the opportunity to evaluate their credibility based on personal observance. We do not have that same opportunity. The trial court is in the best position to evaluate the sentencing factors involved, and we respect the trial court’s superior knowledge and its primary responsibility in pronouncing sentence.
We hold that this court will not reverse a trial court’s determination on the issue of “manifest injustice” unless the sentence is “obviously unfair” or “shocking to the conscience of the court.” In the instant matter, we conclude that the sentence is within statutory limits, was imposed after consideration of all of the required statutory factors, is not obviously unfair, and does not shock our conscience. We conclude that, under the facts shown, the application of K.S.A. 1991 Supp. 21-4618(1) and (2) did not result in manifest injustice.
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Brazil, J.:
Wesley E. McRoberts appeals from the suspension of his driver s license, contending the trial court incorrectly stated the issue and the Kansas Department of Revenue (KDR) failed to prove McRoberts did not intend to take the breath test. We affirm.
McRoberts was stopped by Deputy Ken Glasscock on suspicion of driving while under the influence of alcohol. At that time, McRoberts took a preliminary breath test and was then arrested by Glasscock and taken to the sheriff’s office.
At the sheriff’s office, McRoberts agreed to take another breath test. It is undisputed that it was very warm in the sheriff’s office that night, and McRoberts was uncomfortable and sweating from the heat. McRoberts testified that he voluntarily wiped the sweat from his face with his T-shirt.
Prior to taking the second test, McRoberts had to undergo a 20-minute observation period. McRoberts was given instructions concerning his actions during that 20-minute period. Glasscock testified that he did not remember his exact instructions to McRoberts, “but as is my norm or custom, don’t eat, drink, smoke or chew anything, put anything in, on or about your mouth, don’t belch, regurgitate, vomit, cough, anything of that nature, don’t even as much as bite your fingernails. That’s normal for my instructions.”
Glasscock testified that he began the first 20-minute observation period at 1:46 a.m. McRoberts belched at 1:50 a.m. The second observation period then began and lasted until approximately 1:54 a.m., when McRoberts coughed. The third observation period began immediately and it lasted until 2:03 a.m., when, in Glass-cock’s opinion, McRoberts feigned the need to vomit. During the preceding time period, Glasscock had repeatedly warned McRoberts not to “put anything in, on, or about your mouth.”
McRoberts, despite the warnings, continually wiped his face with his T-shirt. Glasscock began a fourth observation period at 2:03 a.m. Glasscock, on his own initiative, provided a towel for McRoberts. Glasscock repeated his warning not to place “anything in or near your mouth or I’ll take your license.” Concerning the towel, he told McRoberts to wipe his head but to try not to put it up by his mouth. Glasscock testified that he gave McRoberts the towel to wipe his brow.
McRoberts wiped his mouth with the towel at 2:08 a.m. At that time, Glasscock stated: “[Y]ou just lost your license.” Glasscock stated that he felt McRoberts refused to cooperate with preparations prior to the test.
McRoberts told Glasscock that he was not ill. McRoberts denied belching; however, he stated twice that he was drunk. McRoberts further denied doing anything to sabotage the test and testified he agreed to and intended to take the test.
The court found:
“2. To ‘complete testing’ requires the person do nothing to defeat or frustrate the testing procedures and comply with reasonable requirements and limitations preparatory to the person’s actually blowing into the machine.
“3. The plaintiff repeatedly failed to comply with those reasonable requirements and limitations and was advised of the consequences of such failure and as such, his conduct constitutes a constructive refusal to submit to testing.”
The court, therefore, denied McRoberts’ petition for review of his driver’s license suspension.
McRoberts argues that the issue is whether his failure to take the test flowed from an intent to refuse the test. He contends the trial court erroneously restated the issue as: “Did the plaintiff fail to take a breathalyzer test when requested to do so?” We agree with the trial court.
The use of the word “fail” by the trial court complies with K.S.A. 8-1013(i), which defines a test refusal as “a person’s failure to submit to or complete any test, other than a preliminary screening test, in accordance with this act.” Further, K.S.A. 8-1001(f)(2) provides: “Failure of a person to provide an adequate breath sample or samples as directed shall constitute a refusal unless the person shows that the failure was due to physical inability caused by a medical condition unrelated to any ingested alcohol or drugs.” These sections read together indicate that a test refusal is to encompass express refusals, acts, or conduct which may be interpreted as express refusal.
In a case recently decided by this court, it was held that a test was not complete as required when the driver, Call, actually blew into the machine and produced “a breath alcohol measure of .124%” but “the printout further indicated the sample furnished was deficient.” Call v. Kansas Dept. of Revenue, 17 Kan. App. 2d 79, 80, 831 P.2d 970 (1992), rev. denied 251 Kan. 937 (1992). Call’s failure to provide an adequate breath sample constituted a refusal to take the test. 17 Kan. App. 2d at 82.
The trial judge’s interchanging of “failure” and “refusal” was not error.
Finally, McRoberts contends the wording of K.S.A. 8-1013(i) places the burden upon KDR to prove Glasscock gave McRoberts the chance to complete the test and that McRoberts refused through intentional lack of cooperation to take the test. McRoberts has not cited any authority for placing that specific burden of proof on KDR.
Admittedly, under K.S.A. 8-1002(a), the certification by the law enforcement officer must show that McRoberts was given the opportunity to take the test and that he either failed or refused it. However, under K.S.A. 8-1001(f)(2), McRoberts clearly had the burden of showing that his “failure [to complete the test] was due to physical inability caused by a medical condition unrelated to any ingested alcohol or drugs.” In this case, there was sufficient competent evidence to support the trial court’s findings that McRoberts failed to complete the test and that his failure was not due to a medical condition.
McRoberts argues that none of his actions such as belching, coughing, sweating, or feeling queasy were at all unusual for a person under the influence of alcohol. Since these were the very actions that frustrated Glasscock’s attempts to give McRoberts the test, no better argument can be made under K.S.A. 8-1001(f)(2) to support the trial court’s finding that McRoberts failed to complete the test.
McRoberts also claims that, for the trial court to rule the way it did, it would have to conclude that McRoberts intended to frustrate the test. The cases in this area suggest otherwise.
“A conditional response such as, 1 want to talk to my attorney (or parent or relative or friend or some other third person) first,’ is not a consent to take a breath or blood test. It is a refusal.” Standish v. Department of Revenue, 235 Kan. 900, Syl. ¶ 2, 683 P.2d 1276 (1984). Also, a driver’s silence when requested to submit to a chemical test for alcohol content of blood may constitute an express refusal to submit to the test. In re Hamstead, 11 Kan. App. 2d 527, Syl. ¶ 1, 729 P.2d 461 (1986).
Even if a person attempts to take the test but produces a deficient sample, the person is deemed to have refused the test. Call v. Kansas Dept. of Revenue, 17 Kan. App. 2d 79, Syl. ¶ 2.
To complete the test, McRoberts would have to have completed the 20-minute observation period and blown a sufficient sample into the breathalyzer. McRoberts’ failure to complete the observation period meant he was unable to complete the testing and therefore is deemed to have refused to take the test. Glasscock gave McRoberts four chances to complete the testing procedure. All four times McRoberts did something he was requested not to do.
“Whether there is a refusal to submit to a breath test is a question of fact, not of law. [Citation omitted.] The scope of appellate review is whether there is substantial competent evidence to support the findings of the court.” Call v. Kansas Dept. of Revenue, 17 Kan. App. 2d at 82. The. trial court’s decision was supported by substantial competent evidence.
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Larson, J.:
James J. Tersiner appeals the trial court’s order granting summary' judgment in his negligence action against Michael Gretencord, d/b/a Penn’s Apeo.
Tersiner filed suit against the Union Pacific Railroad Company and Gretencord, in the United States District Court for the District of Kansas, to recover damages for injuries sustained in a fall at Penn’s Apeo. Tersiner’s claim against Union Pacific was made under the Federal Employers’ Liability Act (FELA) (45 U.S.C. § 51 et seq. [1988]). His claim against Gretencord was based on general principles of negligence.
The federal court approved Gretencord’s motion to dismiss Tersiner’s complaint for lack of subject matter jurisdiction. However, Gretencord was retained in the federal action on Union Pacific’s cross-claim for comparative implied indemnity.
Trial was held and the jury returned a verdict in favor of Tersiner for $123,809, apportioning 66% of the fault to Tersiner, 17% to Union Pacific, and 17% to Gretencord.
The federal court first ordered that Tersiner recover $42,095.06 from Union Pacific, and that Union Pacific recover $21,047.53 from third-party defendant Gretencord.
Gretencord’s motion to amend was later sustained because Union Pacific, standing in the same position as Tersiner, could not recover for comparative implied indemnity, as Tersiner’s negligence (66%) exceeded Gretencord’s (17%). It was finally determined that Union Pacific would bear the entire $42,695.06 judgment, recovering nothing from Gretencord.
Tersiner then filed this suit in state court, alleging Gretencord’s negligence in the same transaction. After the trial court sustained Gretencord’s motion for dismissal, treating it as a summary judgment motion, Tersiner appealed. We affirm.
Summary judgment is appropriate in cases in which the record discloses no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. K.S.A. 1991 Supp. 60-256.
We first note that Gretencord is not contending Tersiner’s claim is barred by res judicata or collateral estoppel, but by the provisions of the Kansas Comparative Negligence Act, K.S.A. 1991 Supp. 60-258a.
The landmark decision governing this statute is Brown v. Keill, 224 Kan. 195, 207, 580 P.2d 867 (1978), which states:
‘‘[W]e 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.”
The concept of requiring fault to be determined in a single action, based in part on judicial economy, was reinforced in Eurich v. Alkire, 224 Kan. 236, 579 P.2d 1207 (1978). In Eurich, the historical background of comparative negligence was examined and our Supreme Court stated: “Because the statute contemplates that each party has a right to cross-claim against any or all other parties to a lawsuit, we hold that any party who fails to assert a claim against any other party in a comparative negligence action is forever barred.” 224 Kan. at 238.
The “one-action rule” was set forth in 1981 in Albertson v. Volkswagenwerk Aktiengesellschaft, 230 Kan. 368, Syl. ¶ 3, 634 P.2d 1127 (1981), where it was held: “In a damage suit the doctrine of comparative fault requires all of the parties to the occurrence to have their fault determined in one action.”
Exceptions to the “one-action rule” have subsequently been applied in Mathis v. TG&Y, 242 Kan. 789, 751 P.2d 136 (1988) (two lawsuits, but as a result of settlements only one defendant remained); Anderson v. Scheffler, 242 Kan. 857, 752 P.2d 667 (1988) (settlement agreement retaining right to bring suit against parties resulting in no comparison of fault at trial); and Childs v. Williams, 243 Kan. 441, 757 P.2d 302 (1988) (friendly suit required by law to approve a minor plaintiff’s settlement was not a judicial determination of comparative fault). The exceptions are best summarized in Mick v. Mani, 244 Kan. 81, 766 P.2d 147 (1988), as follows:.
“Therefore, it 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. . . . By virtue of these recent cases, the one-action rule should, perhaps, more accurately be described as the one-trial rule. In each of the cases the issue on appeal was whether the plaintiff was entitled to a trial — not whether he or she could have two trials, as plaintiff herein seeks.” Mick, 244 Kan. at 93.
Tersiner argues that an additional exception to the one-action rule (one-trial rule) is required because of the particular provisions of FELA.
Gaulden v. Burlington Northern, Inc., 232 Kan. 205, 654 P.2d 383 (1982), is best known for establishing the right to “compared implied indemnity in FELA cases.” Gaulden also clearly establishes that, in a FELA case, the causal fault or negligence of all parties, including the contributory negligence of the plaintiff and the negligence of the carrier and any third parties, should be submitted to the jury and the percentage of fault of each determined in one lawsuit. 232 Kan. 205, Syl. ¶ 4.
Tersiner contends that Gretencord’s negligence was not directly compared in the federal court action. Such is not the case. Gretencord was retained as a third-party defendant and the jury did compare the negligence of all parties, attributing 66% to Tersiner, 17% to Union Pacific and 17% to Gretencord. This is a determination of comparative fault in a judicial setting and trial.
Tersiner argues that because he was not a party to the cross-claim he was prevented from directly pursuing his claim against Gretencord. However, the jury had before it in the federal court action Tersiner’s claim for damages upon which it heard evidence and determined the comparative fault of each party. The fact that Tersiner may not have been able to make a direct recovery from Gretencord because of the manner in which he elected to pursue his remedies does not mean the judicial determination of comparative fault of all parties was not made.
Tersiner also complains that he had a right to choose a federal forum for bringing his action against the railroad, and it was Gretencord, and not him, who sought and obtained a dismissal for lack of subject matter jurisdiction. This may be true, but at that point Tersiner had a strategic election to make. He could have dismissed his federal action and instituted a claim against both the railroad and Gretencord in state court. Tersiner did not do this, but elected to continue the federal court action against the railroad.
This was a voluntary election on Tersiner’s behalf. “Plaintiff’s counsel should have been alert to the risk he was taking as a part of his strategy.” Mick, 244 Kan. at 94. In Mick, the strategy was to separate the defendants. Whatever the strategy here, it was Tersiner’s option to elect the course of his action. Gretencord was retained as a third-party defendant and his fault was judicially determined. When that verdict became final, Tersiner’s entire damage claim was terminated.
The factual basis of this appeal is not an exception to the well-stated rule in Albertson:
“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.” 230 Kan. at 374.
Union Pacific could have been sued in state court, but Tersiner chose not to use that forum. He is bound by that decision. He has had his trial. The determination of fault has been reached. Damages have been determined and awarded. The action is over. No further rights exist which can be litigated in state court.
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Larson, J.:
Terry S. Huskey, Sr., appeals the denial of his motion to modify his sentence.
The issue for our determination is whether the sentencing judge complied with K.S.A. 1990 Supp. 21-4603(4)(a) in denying the request of Huskey to be placed in a community corrections program.
Huskey was sentenced on July 19, 1991, to the custody of the Secretary of Corrections, for a controlling term of one to five years, following his guilty pleas to one count of theft, one count of attempted possession of cocaine, and one count of possession of marijuana. The Topeka correctional facility-east (TCFE) recommended that the sentence be modified and Huskey be placed under the supervision of community corrections.
In denying the motion to modify, the sentencing judge stated:
“Well, as you know, this is a three-judge Panel, and I’ll be glad to give you my reasons, if you want me to, but I think, it’s — I don’t know that this is any different than a jury, but, I think, Mr. — as far as I’m concerned, his connection with the drug industry — and, this had to do with stolen antique guns.
“And, in the course of the investigation, there was a lot of uncovering of drugs.
“And the original panel didn’t see fit to grant him probation.
“As far as I’m concerned, as a Member of this Panel, I don’t think he is deserving of probation at this time.”
The other members of the sentencing panel concurred. The record, including the journal entry, bears no other discussion of particular reasons for rejecting the recommendation. Neither the transcript nor the journal entry incorporate or refer to the TCFE report.
The State argues the “district court is not required to utter any particular words in order to comply with” the statute. State v. Boomgaarn, 249 Kan. 673, 677, 822 P.2d 605 (1991). However, Boomgaarn was decided under K.S.A. 1989 Supp. 21-4603(3), which did not require “particular findings.” 249 Kan. at 677. As Huskey contends, the important statement made in Boomgaarn is:
“We note that the legislature has amended this statute. K.S.A. 1990 Supp. 21-4603(4)(a) makes the following requirement:
‘[Wjithin 120 days after a sentence is imposed . . . the court . . . shall modify such sentence if recommended by the Topeka correctional facility-east unless the court finds and sets forth with particularity the reasons for finding that the safety of members of the public will be jeopardized or that the welfare of the inmate will not be served by such modification.’ [The italicized portion is the specific wording added by L. 1990, ch. 149, § 1.]
A more difficult question would be presented if the adequacy of the district court’s remarks [in the Boomgaarn case] was to be measured by [K.S.A. 1990 Supp. 21-4603(4)(a)].” 249 Kan. at 677.
That “more difficult question” is now before this court. The State asserts the statements made by the sentencing court were suf ficient. Huskey, as expected, argues the opposite. Boomgaarn did not answer the question it posed.
Huskey states he finds no reported authority applying K.S.A. 1990 Supp. 21-4603(4)(a). Several cases have addressed the 1989 and 1990 versions of the statute, but none directly apply the particularity requirement. See State v. Reed, 248 Kan. 792, 811 P.2d 1163 (1991) (reversal of district court’s invalidation of K.S.A. 1989 Supp. 21-4603(3)(a) as violative of separation of powers doctrine); State v. Zirkle, 15 Kan. App. 2d 674, 677-78, 814 P.2d 452 (1991) (K.S.A. 1990 Supp. 21-4603[4][a] permits downward modification of sentences but does not allow harsher sentences to be imposed).
In State v. Grimsley, 15 Kan. App. 2d 441, 808 P.2d 1387 (1991), we applied K.S.A. 1990 Supp. 21-4603(4)(a) without expressly discussing the particularity requirement. We did note that the authority to modify is discretionary and, absent an abuse of that discretion, this court will not reverse the lower court’s decision. 15 Kan. App. 2d at 447. The TCFE report in Grimsley was not “favorable” to defendant and in fact recommended continued incarceration. The district court judge noted he had reviewed the file, the defendant’s criminal record, and the TCFE report. 15 Kan. App. 2d at 446-47.
Huskey claims the comments by the trial court show no reason why the safety of the public would be jeopardized. The statute requires that the court state the particular reasons for rejecting the TCFE recommendation. The sentencing judge, in response to Huskey’s counsel’s request for reasons for the ruling, stated the motion was denied because Huskey had “connection[s] with the drug industry,” “this had to do with stolen antique guns,” “in the course of the investigation there was a lot of uncovering of drugs,” and the original panel had denied probation.
“When the legislature revises an existing law, it is presumed that the legislature intended to change the law as it existed prior to the amendment. [Citations omitted.] In determining legislative intent, the court is not required to examine only the language of the statute, but may properly ‘look into the causes which impel the statute’s adoption, the objective sought to be attained, the statute’s historical background and the effect the statute may have under the various constructions suggested.’ [Citations omitted.]” Hughes v. Inland Container Corp., 247 Kan. 407, 414, 799 P.2d 1011 (1990).
Because of the addition of the specific requirement that the trial court must find “and [set] forth with particularity the reasons for finding that the safety of members of the public will be jeopardized or that the welfare of the inmate will not be served by such modification,” we must give added significance to this requirement and insure that its specific direction is followed before a direct recommendation of TCFE is rejected. The reason for this amendment may be found in legislative worries over prison overcrowding and the desire to give heightened consideration. to comprehensive testing and the interviewing process within the corrections system, or to insure unbiased input into decisions regarding modification of sentences, but there is no question the 1990 legislature mandated that before the TCFE recommendation be rejected, the trial court is required to verbalize with particularly its reason for so doing.
Webster’s Dictionary defines particularity as “[t]he quality or state of being particular or distinct rather than general,” with “[e]xactitude of detail, [especially] in description,” and with “[attention to or concern with details.” Webster’s II New Riverside University Dictionary 857 (1984).
The statements made by the sentencing judge when tested by the definitions set forth above are deemed to be general in nature and without sufficient detail to satisfy the statutory requirements.
Under the facts of this case, we find the trial court did not satisfactorily comply with the legislative requirement. The fact that this was a drug case or that antique guns were stolen is not by itself sufficient to satisfy the statutory mandate.
The court must fully and with particularity explain the basis for its conclusion that the safety of the public would be jeopardized or that the welfare of the inmate would not be served by the modification recommended. In this case, it did not do so.
The denial of the motion to modify is reversed. This matter is remanded to be considered by a Wyandotte County sentencing panel consisting of different judges than those who previously considered the motion to modify. See State v. Heide, 249 Kan. 723, 731, 822 P.2d 59 (1992); State v. Blackmore, 249 Kan. 668, 671-72, 822 P.2d 49 (1991). | [
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Briscoe, C.J.:
The Board of County Commissioners of Wyandotte County (Board) appeals the district court’s order which invalidated the Board’s redistricting of Wyandotte County’s three county commission districts.
This action has had a very short life. Plaintiffs’ petition was filed on March 17, 1992. After denial of the Board’s motion to dismiss and motion to conduct limited discovery, the district court scheduled the case for trial on April 22, 1992. Trial was held on that date over the Board’s objection. Under direction of the Board, counsel for the Board did not participate in the trial. The trial lasted for less than two hours and, later that same day, the court filed the order from which this appeal is taken. The district court sought to timely resolve this action because the filing deadline for candidates for county commissioners in Wyandotte County is June 10, 1992.
The three named plaintiffs in this action, Norman Justice, Chester Owens, and Clyde Townsend, are longtime residents of Wyandotte County and of Commission District 2 within that county. In their petition, plaintiffs alleged the Board’s March 17, 1992, redistricting, which was approved by a majority of the three-member board, violated the voting rights of the black minority of Wyandotte County. Specifically, plaintiffs alleged the new dis trict lines were drawn with the intent to help retain two of the incumbent commissioners and to defeat another. Plaintiffs alleged the new districts violated K.S.A. 19-204(a) because they were not as compact and equal in population as possible. Plaintiffs argued the redistricting had the net effect of denying certain citizens of Wyandotte County the benefit of their vote because the strength of the black majority in the 2nd District has been diluted by the Board’s action. By their petition, plaintiffs asked the district court to redraw the three county commissioner districts and to award damages.
The Board filed a motion to dismiss plaintiffs’ petition for lack of jurisdiction. Plaintiffs’ petition did not state a jurisdictional basis for their action against the Board. The Board argued the district court had no jurisdiction to hear an action under either the Voting Rights Act, 42 U.S.C. § 1973 et seq. (1988), or K.S.A. 19-223. The Board argued federal courts have exclusive jurisdiction over cases under the Voting Rights Act. The Board also argued plaintiffs had failed to comply with the requirements of 19-223 because they had failed to serve written notice of the appeal on the clerk of the Board and to execute a bond.
The district court granted the Board’s motion to dismiss for lack of jurisdiction under the Voting Rights Act, concluding actions brought pursuant to the Act are within the exclusive jurisdiction of the federal courts. The court denied the Board’s motion to dismiss for failure to comply with 19-223 by ruling the statute was inapplicable because the decision challenged by plaintiffs was legislative in nature. The court ruled 19-223 applies only to the review of board decisions which are judicial or quasi-judicial in nature.
Although the court refused to dismiss plaintiffs’ action for lack of jurisdiction, the court did not identify in any of its orders how it had jurisdiction. In its memorandum decision entered after trial, the court stated K.S.A. 77-621 governed its scope of review. However, that statute is a part of the Act for Judicial Review and Civil Enforcement of Agency Actions and is intended to apply to state agencies. Decisions rendered by political subdivisions of the state are not subject to review under this Act. K.S.A. 77-602(k). Neither the Act nor the specific portion of the Act cited by the district court would provide the court with jurisdiction to review a decision by a board of county commissioners.
In its ruling on the merits, the district court specifically ruled the population of the three proposed districts was as equal as possible. Although the court noted the proposed districts divided wards but not precincts, no specific ruling was made regarding compactness. The sole basis for the court’s ruling vacating the Board’s March 17, 1992, redistricting was the court’s conclusion that the Board’s action was untimely under the plain language of K.S.A. 19-204. The court reached this conclusion after finding the present Board was “organized” and commenced business on the Monday following the general election in November 1990.
The Board raises two issues on appeal: (1) whether the district court had jurisdiction pursuant to 19-223; and (2) whether the district court erred in setting aside as untimely the Board’s action creating new county commission districts.
K.S.A. 19-223 states:
“Any person who shall be aggrieved by any decision of the board of commissioners may appeal from the decision of such board to the district court of the same county, by causing a written notice of such appeal to be served on the clerk of such board within thirty days after the making of such decision, and executing a bond to such county with sufficient security, to be approved by the clerk of said board, conditioned for the faithful prosecution of such appeal, and the payment of all costs that shall be adjudged against the appellant.”
The Board argues 19-223 applies to plaintiffs’ appeal of the Board’s decision but cannot provide the district court with jurisdiction because plaintiffs failed to serve a written notice of appeal on the Board’s clerk and failed to file a bond. Plaintiffs concede they are guilty of these procedural shortcomings, but argue 19-223 is not applicable to their action because they are seeking review of a legislative decision. Plaintiffs contend the court had jurisdiction to act in this case under its equitable powers.
As both parties agree the requirements of 19-223 were not satisfied and our review of the record supports that conclusion, it is clear the district court did not obtain jurisdiction under 19-223. The parties present no other statutory authority for the district court’s review of the Board’s redistricting action, and by our own search we have found none.
, Did the district court have equitable jurisdiction to grant equitable relief to plaintiffs? Plaintiffs did not seek equitable relief. In their prayer, they asked the court to redraw the district lines and award damages, attorney fees, and costs. However, in Dutoit v. Board of Johnson County Comm’rs, 233 Kan. 995, 998, 667 P. 2d 879 (1983), the court stated:
“The court is under a duty to examine the petition to determine whether its allegations state a claim for relief on any possible theory. [Citation omitted.] It is not necessary to spell out a legal theory of relief so long as an opponent is apprised of the facts that entitle the plaintiff to relief. [Citation omitted.]”
Plaintiffs allege in their petition that the Board acted illegally. If true, that claim would entitle them to equitable remedies. As stated in Brinson v. School District, 223 Kan. 465, 467, 576 P.2d 602 (1978):
“Courts have ho inherent appellate jurisdiction over the official acts of administrative officials or boards except where the legislature has made some statutory provision for judicial review. [Citations omitted.] In the absence of a statutory provision for appellate review of an administrative decision no appeal is available but relief from illegal, arbitrary and unreasonable acts of public officials and boards can be obtained by using such equitable remedies as quo warranto, mandamus, or injunction. [Citation .omitted.]” (Emphasis added.)
Based upon these authorities, we conclude the district court had jurisdiction to grant equitable relief to plaintiffs. We proceed to address the merits of the appeal.
The Board contends the court erred in ruling the redistricting was not completed in a timely fashion under 19-204. As part of its argument, the Board argues it was organized on January 17, 1992.
The Board’s power and duty to redistrict is governed by K.S.A. 19-204(a), which states:
“The board of county commissioners shall, on the day of the organization of the board or as soon thereafter as may be possible, meet and divide the county into three commissioner districts or such number of districts as is prescribed by resolution of the board, as compact and equal in population as possible, and nurnber them, subject to alteration at least once every three years.”
The court applied this statute and determined, first, that the board was organized in November 1990 and, second:
“The real problem here is the flat ignoring by the majority of this board of commissioners of the plain words of the statute:
‘Shall on the day of the organization of the board, or as soon thereafter [as] may be possible, meet and divide the county into three commissioner districts ....’”
In short, the district court interpreted the statute to mean the Board had to redistrict after its organization in 1990 and its delay until March 17, 1992, was in effect arbitrary and capricious.
Although 19-204 does not define organization, K.S.A. 19-219 describes the organization process:
“It shall be the duty of the board of county commissioners to meet on the second Monday in January of each year, or within thirty (30) days thereafter, and organize by electing one of their number chairman for a term of one (1) year who shall preside at that meeting and at all other meetings during such year, if present; but in case of the chairman’s absence, a temporary chairman may be elected from the members present; and in case of the death or resignation of the chairman of the board, the board may, at any regular or special meeting after such vacancy, elect one of their number chairman to fill the vacancy.”
The rules of statutory construction are well known:
“The fundamental rule of statutory construction is that the purpose and intent of the legislature governs when the intent can be ascertained from the statute. In construing statutes, the legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. [Citations omitted.]” State v. Adee, 241 Kan. 825, 829, 740 P.2d 611 (1987).
Reading 19-204 and 19-219 together, it is clear the organization referred to in 19-204 is something that must occur annually. The annual organization must occur even though the same individuals may be longstanding members of the board. The district court’s apparent conclusion that the Board in this case was organized in 1990 was based upon plaintiffs’ arguments that the same three commissioners had been in office since 1990 and, therefore, the court should look to when it was first organized. This argument ignores the plain language of 19-204 and 19-219. Further, it is clear that, under 19-204, each county is not subject to redistricting every year; rather, under 19-204, each county is subject to redistricting at least once every three years. See Andrews, 207 Kan. at 552. In the years of redistricting, it is to be done as early in the year as possible, presumably to prevent as much confusion as possible for ensuing November elections.
Here, the Board argues it was organized on January 17, 1992. Although there is no evidence in the record of such organization, this court cannot presume the Board violated the law. In the absence of proof to the contrary, we must assume the Board followed the law and organized in 1992 as required by 19-219. See Kipp v. Goffe & Carkener, 144 Kan. 95, 105-06, 58 P.2d 102 (1936). Thus, the question becomes whether the March 17, 1992, redistricting was timely.
The appropriate standard of review for the district court and for this court on appeal is whether the Board abused its discretion in approving the redistricting plan. Osage County, 112 Kan. at 258. Further, an appellate court has limited judicial review of legislative acts to determine “whether the Board has the statutory authority to enter the order which it made.” In re Appeal of City of Lenexa, 232 Kan. 568, 576, 657 P.2d 47 (1983). In this case, the Board can be said to have abused its discretion if it acted illegally or if no reasonable person would take the position of the Board. See Hoffman v. Haug, 242 Kan. 867, 873, 752 P.2d 124 (1988).
K.S.A. 19-204 requires that redistricting be done “on the day of the organization of the board or as soon thereafter as may be possible.” In challenging the Board’s action, plaintiffs offered no proof that the redistricting could have been done any sooner than it was, except to argue that 1990 census figures were available in 1991. Assuming arguendo that the figures were available in 1991 and the Board could have redistricted in 1991, that alone does not invalidate the 1992 redistricting. The Board was presumably organized in January 1992 and the redistricting was approved approximately two months later. A reasonable person could conclude two months is not an excessive delay and ■ that the redistricting was done as soon as possible after the Board had organized, as authorized by 19-204. The district court erred in ruling the redistricting was invalid.
Plaintiffs argue in their appellate brief that the redistricting was invalid for a number of other reasons, including: (1) lack of proper records of the Board’s actions; (2) unfair denial of a can didate’s franchise and right to run for office; (3) violation of the Kansas and United States Constitutions; and (4) the redistricting was the result of the commissioners’ desire to benefit themselves at the expense of the electorate.
The district court’s findings of fact in this case do not provide a basis to support any of these claims. Determinations of fact, unappealed from, are final and conclusive. See Crawford v. Prudential Ins. Co. of America, 245 Kan. 724, 728, 783 P.2d 900 (1989). “ ‘Generally, a litigant must object to inadequate findings and conclusions of law in order to give the trial court an opportunity to correct them. [Citation omitted.] In the absence of an objection, omissions in findings will not be considered on appeal. [Citation omitted].’ ” U.S.D. No. 352 v. NEA-Goodland, 246 Kan. 137, 140, 785 P.2d 993 (1990). Plaintiffs have not cross-appealed nor have they asserted that the court’s findings of fact were inadequate because they failed to address all of their claims. Thus, this 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.’ ” Wichita Fed’l Savings & Loan Ass’n v. Black, 245 Kan. 523, 530, 781 P.2d 707 (1989).
The district court’s ruling does leave one of plaintiffs’ claims unresolved. K.S.A. 19-204(b) requires that commissioner districts be “as compact and equal in population as possible.” Plaintiffs complained the redistricting plan was invalid because it violated the mandates of 19-204, which could include the compactness issue. The court ruled:
“On the issue of compactness, it is apparent that the proposed redistricting does not divide precincts, but it clearly splits and divides wards. In State ex rel. v. Osage County, 112 Kan. 256, the Court said:
‘No reason appears why a city may not be divided so that one part lies in one district and another part in another district so long as the boundary lines of the district follow the boundaries of the city wards and do not interfere with voting precincts.’ [Citations omitted.]”
The court specifically found that wards 1, 9, 10, 11, 12, 13, and 14 were split under the March 17, 1992, redistricting plan. The Board argues wards have been split by commissioner districts for years. The maps of Wyandotte County included in the record indicate wards are split under both the old and the new district boundaries. The question of whether the splitting of wards violated 19-204(b) is a question of law. An appellate court’s review of conclusions of law is unlimited. U.S.D. No. 352, 246 Kan. at 140. We have found no case holding that a finding that wards have been split requires invalidation of a redistricting plan, although admittedly Osage County, 112 Kan. 256, Syl. ¶ 5, does suggest that result by stating:
“No reason appears why a city may not be divided so that one part lies in one district and another part in another district so long as the boundary lines of the district follow the boundaries of the city wards and do not interfere with voting precincts.”
The discussion of compactness in the body of the opinion includes the following statements:
“Unless the word ‘compact’ as used in the statute means that the residents of each district shall be closely united in interest we see no substantial reason for an objection to the order [dividing Osage City into three districts] because streets of a city are used as boundary lines, provided, of course, the voting precincts are not divided. We think the word ‘compact’ as used in the statute means that the territory shall be closely united, and not necessarily that the residents of each district shall be united in interest. Besides, we can conceive of no reason why a city may not be divided so that part of it lies in one. commissioner district and part in another.” (Emphasis added.) 112 Kan. at 260.
This discussion makes it clear the court was concerned with splitting voting precincts.
The statute does not mention wards or voting precincts. Here, the voting precincts are not divided in the Board’s recent redistricting. Absent a finding by the district court that the Board acted with illegal motive in drawing the new lines, we conclude the new districts are “compact” under 19-204(b) even though the wards áre divided. Given the large size and elongated shapes of some of the wards in Wyandotte County, if ward lines are followed to establish district boundaries, it would become more difficult to achieve districts which are equal in population and also compact. Since the voting precincts remain undivided, there appears to be no reason why a city ward may not be divided so that part of it lies in one commissioner district and part in another.
The district court’s order invalidating the Board’s redistricting of Wyandotte County’s three county commission districts is reversed. | [
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|
Lewis, J.:
This is an appeal of a wrongful death action filed by the widow and surviving children of David L. Fountain. Fountain was killed when his truck collided with a dump truck hauling asphalt on. a rural, dusty, Miami County road. The plaintiffs sued Miami County (County), the road contractor, Se-Kan Asphalt Services, Inc. (Se-Kan), a subcontractor who owned the dump truck, and the driver of that truck. A settlement was reached with all the defendants, with the exception of Se-Kan. The trial court granted summary judgment in favor of Se-Kan, and the plaintiffs appeal.
The focus of plaintiffs’ lawsuit is a road construction project. This construction project began when County issued bid materials for the “1988 Miami County Chip and Seal Project.” The project entailed the chipping and sealing of approximately 45 miles of paved county roads. Se-Kan was awarded the contract on this project.
The “contract” between the County and Se-Kan consisted of three letters written from the county road supervisor to Se-Kan and a map showing the roads to be improved. There is very little detail in the so-called contract, but it does provide that Se-Kan is to be responsible for “traffic control.”
Although a number of other roads were involved in the project, this case arises out of work being done on a highway known as John Brown Highway. John Brown Highway is a paved Miami County highway located just west of Osawatomie. The contract required Se-Kan to chip and seal a specified section of John Brown Highway.
The County agreed to supply the chip and seal materials from its own quarries. The asphalt used to chip and seal John Brown Highway was hauled by Se-Kan from a county quarry 2.6 miles from the construction site. Travel to and from the quarry to John Brown Highway was done over Indianapolis Road. Indianapolis Road is a gravel county highway. Se-Kan’s dump trucks traveled over Indianapolis Road to deliver asphalt to the construction project. Se-Kan had five to seven dump trucks continuously hauling asphalt from the quarry to the construction site. Some of these trucks were owned by Se-Kan, and others were owned by subcontractors. The truck involved in the fatal accident with Fountain was owned by a subcontractor.
Indianapolis Road was not mentioned in the contract documents and was not under construction or repair by Se-Kan. There is no indication in the record that the contract documents required Se-Kan to perform any duties insofar as Indianapolis Road was concerned. The road was the most direct route to and from the construction area, but was not mentioned in the agreement.
The accident happened on a hot, dry, day in late August. Under these circumstances, the truck traffic over Indianapolis Road created a dusty condition. The heavy dust raised by trucks and other vehicles traveling the road, at times, almost totally obscured the vision of drivers using Indianapolis Road. Fountain was an oil pumper and, apparently, was very familiar with Indianapolis Road. The record shows he was making his third trip of the day over the road at the time of the accident.
Under the conditions described above, Fountain s pickup collided head-on with a dump truck, and Fountain was killed. Although the evidence indicates the dump truck was two feet left of center, there is little question but that the heavy dust raised by trucks and other traffic on the road obscured the vision of both drivers and was a substantial contributing factor to the accident.
The plaintiffs’ cause of action against the driver of the dump truck and its owner was based on the negligence of the driver. This action was settled against those defendants for $225,000. The action against Se-Kan and Miami County was based on the premise that these defendants had failed to make and keep Indianapolis Road safe for traffic. The suit against the County was settled for $90,000. Se-Kan refused to settle, and the matter continued on with its filing of a motion for summary judgment.
Plaintiffs contend that Se-Kan was negligent in failing to water Indianapolis Road to control the dust and in failing to put up signs to warn motorists about the dusty condition of the road.
The trial court held that Indianapolis Road was outside the construction site and that Se-Kan had no duty to water the road or post signs to warn the public. Accordingly, the trial court granted the motion for summary judgment filed by Se-Kan, holding there could be no negligence without the violation of a duty. Plaintiffs appeal from that ruling.
The question involved in this appeal is whether Se-Kan .owed a duty to Fountain to control the dust on Indianapolis Road or to warn him of the dusty conditions. Plaintiffs contend this duty was imposed under several theories. Our responsibility is to analyze the theories proposed by plaintiffs and determine whether Se-Kan was or could be found to be guilty of violating a duty owed to Fountain.
SUMMARY JUDGMENT
Before proceeding to the specific theories advanced by plaintiffs, we must determine our standard of review.
On this appeal, the issue is whether the trial court erred in granting Se-Kan’s motion for summary judgment. Plaintiffs contend that Se-Kan had a duty to provide for the safety of motorists on Indianapolis Road because it was part of the construction site and it was Se-Kan who created the dangerous condition. In the face of those allegations, the trial court granted Se-Kan’s motion for summary judgment.
The standard for summary judgment is well settled:
“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. A trial court, in ruling on motions for summary judgment, should search the record to determine whether issues of material fact do exist. When summary judgment is challenged on appeal, an appellate court must read the record in the light most favorable to the party who defended against the motion for summary judgment. [Citation omitted.]” Finkbiner v. Clay County, 238 Kan. 856, 857-58, 714 P.2d 1380 (1986).
Ordinarily, questions as to negligence or contributory negligence are not subject to determination on summary judgment. This is true because the evidence and inferences, when construed in the light most favorable to the party defending against the motion, typically leave in question a genuine issue of material fact. Smithson, Executor v. Dunham, 201 Kan. 455, 458, 441 P.2d 823 (1968).
This is not a typical negligence action. In this case, the facts are not seriously in dispute. The trial court concluded that, under the facts shown, no duty was owed by Se-Kan to plaintiffs and, as a result of that conclusion, granted the motion for summary judgment. “Negligence exists where there is a duty owed by one person to another and a breach of that duty occurs. Further, if recovery is to be had for such negligence, the injured party must show ... a causal connection between the duty breached and the injury received.” Durflinger v. Artiles, 234 Kan. 484, Syl. ¶ 1, 673 P.2d 86 (1983).
As indicated above, for negligence to exist, there must be a duty and a breach of that duty. If no duty exists, there can be no negligence. Finkbiner, 238 Kan. at 862. The existence of a duty is a question of law. Hackler v. U.S.D. No. 500, 245 Kan. 295, 297, 777 P.2d 839 (1989).
The question is whether the trial court was correct in holding that, under the facts shown, no duty was owed by Se-Kan to Fountain. Since this issue is one of law, our scope of review is unlimited.
CONTRACTUAL DUTY
Plaintiffs argue that the contract between County and Se-Kan imposed a duty upon Se-Kan to maintain the safety of Indianapolis Road. They premise this argument on the following statement in the agreement: “Contractor is responsible for traffic control.” Plaintiffs argue that this language placed a contractual duty on Se-Kan to control traffic on Indianapolis Road. We disagree.
As pointed out earlier, the agreement between the parties consisted of three letters and two maps showing the roads in Miami County. The comment concerning the responsibility for traffic control is in one of the three letters. There is no elaboration or explanation on what is meant by “traffic control” or where that control should be exercised.
“ ‘It is a fundamental principle that a court may not make a new contract for the parties or rewrite their contract under the guise of construction. In other words, the interpretation or construction of a contract does not include its modification or the creation of a new or different one. It must be construed and enforced according to the terms employed, and a court has no right to interpret the agreement as meaning something different from what the parties intended as expressed by the language they saw fit to employ. A court is not at liberty to revise, modify, or distort an agreement while professing to construe it, and has no right to make a different contract from that actually entered into by the parties.’ ” Fourth Nat’l Bank & Trust Co. v. Mobil Oil Corp., 224 Kan. 347, 353, 582 P.2d 236 (1978).
In construing the meaning of a contract, the appellate courts will not look beyond the four comers of the contract where the parties have reduced the agreement to written form and the document is unambiguous on its face. Southwest Nat’l Bank v. Simpson & Son, Inc., 14 Kan. App. 2d 763, 770, 799 P.2d 512 (1990), rev. denied 248 Kan. 997 (1991). Whether an instrument is ambiguous is a matter of law to be decided by the court. Godfrey v. Chandley, 248 Kan. 975, Syl. ¶ 2, 811 P.2d 1248 (1991); Snodgrass v. State Farm Mut. Auto. Ins. Co., 15 Kan. App. 2d 153, 157, 804 P.2d 1012 (1991). A contract is considered ambiguous if two or more meanings can be construed from the written language. Albers v. Nelson, 248 Kan. 575, Syl. ¶ 1, 809 P.2d 1194 (1991).
The question presented is what is meant by the words: “Contractor is responsible for traffic control.” As pointed out above, the parties do not elaborate on what they mean by traffic control. We hold the provision of the contract quoted above is ambiguous. It is not clear from the written language if the contractor is to be responsible for traffic control only at the construction site or whether it is responsible for traffic control at some other area. Since the contract is ambiguous, we may look beyond the four comers of the agreement.
In resolving ambiguities, the intention of the parties, if ascertainable, should be given effect. NEA-Goodland v. U.S.D. No. 352, 13 Kan. App. 2d 558, 563, 775 P.2d 675, rev. denied 245 Kan. 785 (1989). On the facts shown, there is no difficulty in ascertaining the intent of the parties. The two individuals who were involved in the making of the agreement between the County and Se-Kan both testified as to their interpretation of the traffic control provision of the contract. The county road supervisor of Miami County testified that he never discussed with Se-Kan maintenance or traffic control on Indianapolis Road and that he interpreted the traffic control provision of the contract to apply only to the actual construction site. The president of Se-Kan testified that he understood the traffic control provision to mean that Se-Kan would only be responsible for traffic around the actual worksite on John Brown Highway.
It is apparent from the record that neither party involved in the agreement believed the traffic control provision of the contract applied to Indianapolis Road. As we pointed out earlier, in resolving ambiguities, the intent of the parties must be given effect. There is no disagreement among the parties to the contract as to the meaning of the traffic control provision, and theré is no genuine issue of material fact in dispute.
We conclude the trial court did not err in granting summary judgment in favor of Se-Kan on the issue of a contractual duty to control traffic on, or maintain, Indianapolis Road.
STATUTORY DUTY
Plaintiffs next argue that Se-Kan had a statutory duty to the public in its use of Indianapolis Road.
We begin by observing that, apart from any duty or obligation which might be imposed on Se-Kan, the County had a continuing duty to maintain all its roads and highways in reasonably safe condition for the traveling public. This would include an obligation to maintain Indianapolis Road at the time of the accident. Indeed, our Supreme Court has held that the obligation to maintain public highways by a governmental entity is a nondelegable duty. Trout v. Koss Constr. Co., 240 Kan. 86, Syl. ¶ 6, 727 P.2d 450 (1986). We have already concluded that the County did not seek by contract to share any of its nondelegable duties to maintain Indianapolis Road with Se-Kan.
Plaintiffs argue that such a duty may be found in the provisions of K.S.A. 68-2102, which read as follows;
“Every person who shall have entered into a contract to make any improvement, or any municipality which has undertaken for itself the making of any improvement, shall, where the work so undertaken requires the closing of any highway or the rendering of the same impassable or dangerous to travel while said improvement is being made, place at the intersection of all highways leading thereto, barricades and warning signs, advising the public that said highway is closed or is impassable or dangerous to travel. Such warning signs shall be illuminated in the nighttime by warning lights.”
The argument by plaintiffs is that the statute does not limit the duty of a contractor to the highway under repair. They submit that the duty imposed by the statute extends to any highway made dangerous to travel during the construction project. This duty, plaintiffs insist, extended to Indianapolis Road.
Se-Kan argues that the operable words in the statute are “where the work so undertaken requires the closing of any highway.” (Emphasis added.) It argues no work was undertaken on Indianapolis Road and that the statute only applies to the road under construction. We agree with the construction advocated by Se-Kan.. • ■
At issue is the breadth of the language in K.S.A. 68-2102. By its very terms, that státute places duties on contractors to take steps to protect the public in the area involved in a construction project: It clearly encompasses all roads under the contractor s control during a construction or repair project. The question is whether it also includes roads not involved in the project and not under the contractor s control and supervision. We think not. Under plaintiffs’. theory, a contractor would be responsible for the safety of all roads used to travel to and from the construction site. This would extend the duties of road contractors to new heights far beyond those imposed by the construction agreement. We believe it would also extend those duties beyond the scope contemplated by K.S.A. 68-2102.
Miami County had a nondelegable duty to maintain Indianapolis Road in a reasonably safe condition. The principal duty to users of Indianapolis Road was already imposed on the County. This duty was owed to Fountain, to Se-Kan and its subcontractors, and all other Users of Indianapolis Road. In view of this fact, we see no need to impose on Se-Kan an unlimited, unspecified duty to maintain all roads used in traveling to and from the construction site.
The Kansas Supreme Court dealt with K.S.A. 68-2102 in Schroder v. Braden, 193 Kan. 85, 391 P.2d 1005 (1964). In that cáse, the 'plaintiff’s wife was injured when plaintiff, driving on an abandoned highway, hit a pile of dirt left by the defendants in removing an old shoofly detour and culvert. The road had been abandoned and the site of the accident was some distance from the construction project. The plaintiff in Schroder, as here, sought to impose upon the defendants a duty under 68-2102. The Kansas Supreme Court held that no duty existed and said:
“We find no Kansas cases dealing with the particular facts and circumstances which we have before us, either in the construction of the statute or the application of the common law. We are constrained to hold that the appellees were under no duty to place signs and barricades on the road or highway at the point of the accident either under the common law or the statute. The appellees were not making an improvement on a highway and they were not closing a highway as those terms are used in the statute. They were removing a culvert from a strip of highway which had been eradicated for over a year.
“Whether the appellees were under an obligation to the traveling public to erect caution signs or barricades at the point where the accident occurred depends on the nature of the work and the place where it was being performed.” 193 Kan. at 89.
As in Schroder, Se-Kan was not closing Indianapolis Road, nor was it making an improvement on it. As the Supreme Court points out, the duty to erect caution signs or barricades depends on the nature of the work and the place where it was being performed. In this case, Se-Kan was performing no work of any nature on Indianapolis Road and, hence, had none of the duties imposed by 68-2102 with regard to that road.
We find it inappropriate to extend the duties imposed by K.S.A. 68-2102 to a highway on which the contractor is nothing more than a traveler. Implicit in the Schroder decision is the concept that the duties are only imposed where the contractor has interfered with normal highway traffic by reason of repair or construction work performed on the highway in question. We will not extend those duties to include highways on which only travel takes place. If the legislature wishes to extend the statutory duties to include all roads traveled to and from a construction project, it may do so in more explicit terms. This would give contractors notice of an extended obligation and enable them to consider such extended obligations in bidding future projects.
We hold that the trial court did not err in holding that, under the facts of this case, Se-Kan had no statutory duty to maintain Indianapolis Road.
COMMON-LAW DUTY
Finally, plaintiffs seek to impose a duty on Se-Kan under the common law or under a theory of custom and usage. The trial court held that no such duty existed under the facts shown, and we hold that the trial court did not err in this conclusion.
In approaching the issue, it must be kept in mind that the duties plaintiffs seek to impose on Se-Kan are rather specialized. It is the position of plaintiffs that Se-Kan had a common-law duty to apply water to Indianapolis Road to control the dust or to post warning signs on the road. These duties are duties which are generally imposed on a contractor working on and in control of a construction site. Se-Kan, under the facts shown, did not occupy that position.
This is an issue of first impression in this state; that is, whether the common-law duties of an ordinary and prudent road contractor are imposed on Se-Kan under the facts shown. We hold that they are not.
We begin by reiterating that Indianapolis Road was not part of the construction project undertaken by Se-Kan. The duties and obligations of Se-Kan as a road contractor were confined to John Brown Highway. Indianapolis Road was not connected with the contract and remained under the exclusive control of the County. Under the facts shown, the County did not cede or agree to share any of that control. The evidence indicates that the County had the necessary equipment to apply water to Indianapolis Road and control the dust. It made no effort to do so. The county road supervisor testified that, to his knowledge, the county had never contracted with a road contractor to maintain a road which led from a quarry site to a construction site. The County did not do so because such an arrangement was too expensive.
There are no facts from which it can be inferred that Se-Kan had any road contractor responsibility for Indianapolis Road. SeKán was merely a user of Indianapolis Road. We see no basis for imposing the special duties of a road contractor on Se-Kan when its use of Indianapolis Road was limited to travel to and from the construction site.
We also conclude that Se-Kan had no common-law contractual duties on a highway outside of the construction area and over which it had no control. We are aware of no authority which places common-law road maintenance duties on a party which has no control over the road in question and no right to perform maintenance duties on the road. Plaintiffs argue that Se-Kan had a duty to apply water to Indianapolis Road to control the dust. If we were to impose such a duty on all users of rural county roads made dusty by use, we would create an even greater danger than is caused by blowing dirt. Posting of unauthorized signs on a public highway is .forbidden by K.S.A. 8-1512(a). We suspect the unauthorized application of water to a public highway is equally forbidden. It is certainly unlawful for an irrigator to sprinkle water on the roads. K.S.A. 68-184. It is unlawful to alter or obstruct the surface of public highways under K.S.A. 68-545. To carry out the duties plaintiffs seek to impose would have required Se-Kan to violate the law. We decline to impose any such duty under the principles of the common law or principles of custom and usage.
Se-Kan was not occupying the status of a contractor in traveling on Indianapolis Road. It was a user of that road and had only such duties and obligations as were imposed on other users of the highway. It had no greater or lesser duties than did the decedent. There is no doubt that Se-Kan was causing the dust to fly by its use of Indianapolis Road. It is common knowledge that travel on a dirt or gravel highway on a hot, dry day raises considerable dust. Decedent’s own travel over the road no doubt contributed to the gathering dust. The duty to control that dust was imposed by law on Miami County. Only Miami County had the authority and right to maintain Indianapolis Road, and only Miami County had a duty to do so.
Plaintiffs presented considerable testimony on the duty of a reasonable and prudent contractor. Our conclusion that Se-Kan did not occupy the position of a contractor with regard to Indianapolis Road obviates the relevancy of such testimony. Expert testimony cannot create a duty not imposed by law.
Plaintiffs cite a number of cases which they contend are supportive of their position. We' have examined the authority cited and find none stand as authority for the proposition put forth by plaintiffs. In the cases cited by plaintiffs, the duties to post warning signs, control dust, etc., were imposed where factually the defendant either had permission to post the signs or was in control of the area involved. Neither condition exists in the facts shown in this lawsuit.
Plaintiffs have cited us no decision, and we are aware of none, where the common-law duties of a road contractor have been applied in a situation where the road on which the accident took place was not part of the construction site and where the contractor was merely a user and traveler of that road.
Plaintiffs seek to impose on Se-Kan duties established by the Kansas Department of Transportation (KDOT) standard specifications. These specifications have no application to the instant project. The KDOT specifications were not mentioned in the contract between the parties and were not made specifically applicable to the construction site. In addition, the KDOT specifications for state road and bridge construction have no application to an accident which happened on a road not under construction and not under the control of the contractor. We believe the same comments are applicable to the Manual on Uniform Traffic Control Devices, the manual issued by the American Association of State Highway and Transportation Officials, and the Federal Motor Carrier Safety Regulations, all of which plaintiffs seek to make applicable to this county road project.
We hold that, under the facts and circumstances shown, the trial court did not err in holding that Se-Kan had no duty to water or post warning signs on Indianapolis Road.
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Davis, J.:
John W. Fore and Carol K. Fore appeal from convictions of aggravated criminal sodomy, indecent liberties with a child, and conspiracy to commit sexual exploitation of a child. Both defendants contend that the court erred by instructing the jury that lack of knowledge of the age of the minor was not a defense. The defendant, John Fore, additionally contends that the court erred by failing to define for the jury the term “sexually explicit conduct” as defined in K.S.A. 1991 Supp. 21-3516. We affirm.
Highly summarized, the facts are that Carol Fore had sexual intercourse with and performed oral copulation on C.Y., a 15-year-old male and thát John Fore videotaped that conduct with Carol’s knowledge and consent. Both defendants stipulated to the above facts, and C.Y.’s testimony confirmed the above facts.
Age as a Defense
Both defendants claim that instruction No. 8, identical to PIK Crim. 2d 54.02 and based on K.S.A. 21-3202(2), requires us to reverse the defendants’ convictions. Instruction No. 8 advised the jury that:
“It is not a defense that the accused did not have knowledge of the age of a minor, even though age is a material element of the crime with which he is charged.”
K.S.A. 21-3202(2) provides:
“Proof of criminal intent does not require proof that the accused had knowledge of the age of a minor, even though age is a material element of the crime with which he is charged.”
K.S.A. 21-3202(2) clearly provides that defendants’ knowledge of C.Y.’s age is not a material element of the crimes charged. However, both defendants claim that the meaning of the instruction differs significantly from the meaning of the statute, and that the instruction erroneously eliminates a defense otherwise available to them.
Instruction No. 8, which is identical to PIK Crim. 2d 54.02, is a correct statement of Kansas law. Kansas law prohibits certain conduct with minors. The only possible relevance of the defen dants’ knowledge of the victim’s age is that defendants could claim that, absent knowledge that the victim was a minor, they lacked intent to commit the prohibited acts with a minor. However, K.S.A. 21-3202(2) provides that proof of intent does not require proof that the accused knew the age of the minor. Thus, any claim that the defendants did not know the victim was a minor is irrelevant. PIK Crim. 2d 54.02 accurately states the law; the trial court did not err by giving this instruction.
The defendant Carol Fore argues that a reasonable mistake about the victim’s age should be a defense because other jurisdictions so hold. She bases this claim on a Minnesota statute that allows the defendant to assert a mistake about the victim’s age as ¿'defense to certain sex crimes.
The Minnesota sex crime statutes, unlike those in the State of Kansas, expressly state that in some circumstances mistake about age is an affirmative defense. It is apparent that the Minnesota legislature determined that mistake about age was available as a defense in some situations but not in others. Given this disparate treatment, the legislature had to specify when the defense was available and when it was not. The Minnesota legislature did so. Compare Minn. Stat. §§ 609.344(l)(a) (1990) and 609.345(l)(a) (1990) (mistake about age not available as a defense) with §§ 609.344(l)(b) (1990) and 609.345(l)(b) (1990) (mistake about age may be raised as a defense). In contrast, the Kansas Legislature expressly stated that lack of knowledge about a minor’s age is not a defense to the crimes at issue here. Thus, any claim that mistake about age should be a defense to the crimes charged in Kansas finds no support in the Minnesota statutes.
Carol Fore also cites several cases from other jurisdictions in support of her claim that a reasonable mistake about the age of the minor should be a defense to the crimes charged. All of the cases she cites, however, are based upon statutes in those other jurisdictions that do not exist in the State of Kansas. The cases she cites are neither dispositive nor persuasive. Suffice it to say that K.S.A. 21-3202 expressly bars lack of knowledge about a minor’s age as a defense to the crimes charged. PIK Crim. 2d 54.02 (instruction No. 8) is based on K.S.A. 21-3202 and correctly states Kansas law. The trial court did not err in giving this instruction.
Failure to Define “Sexually Explicit Conduct”
Because John Fore did not object to the specific instruction given the jury, the standard we apply in determining whether the trial court’s failure to define “sexually explicit conduct” is whether such failure was clearly erroneous. In order to find that failure to give such an instruction was clearly erroneous, we must reach a “firm conviction that, if the trial error had not occurred, there was a real possibility the jury would have returned a different verdict.” State v. Land, 14 Kan. App. 2d 515, Syl. ¶ 3, 794 P.2d 668 (1990); accord State v. Perkins, 248 Kan. 760, Syl. ¶ 8, 811 P.2d 1142 (1991).
The trial court’s instruction did not expressly define “sexually explicit conduct.” Yet, the very conduct of engaging in sexual intercourse and oral copulation with C.Y. fits within the statutory definition of “sexually explicit conduct.” See K.S.A. 1991 Supp. 21-3516(2)(a). The defendants stipulated that such conduct occurred. Had the court included the statutory definition in its instruction to the jury, the jury would have had no choice but to find that sexually explicit conduct occurred.
The jury instruction given by the court required the jury to find that Carol Fore engaged in sexual intercourse and sodomy with a juvenile. The instruction expressly required the jury to find facts that fit within the statutory definition of “sexually explicit conduct.” The failure to define such conduct was not clearly erroneous.
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Rulon, J.:
Carroll E. Noel, Jr., petitioner, participated in a hearing pursuant to K.S.A. 1991 Supp. 22-3428a to determine whether he was eligible for release from Lamed State Security Hospital. The district court found that petitioner was dangerous to others and ordered that he remain committed. Petitioner appeals, raising multiple issues.
We must determine: (1) if the district court erred by failing to consider petitioner’s conditional release; (2) if the district court erred by failing to order that petitioner be placed in a less restrictive environment; and (3) the significance of recently enacted amendments to K.S.A. 1991 Supp. 22-3428 and the recently decided United States Supreme Court case of Foucha v. Louisiana, 504 U.S. _, 118 L. Ed. 2d 437, 112 S. Ct. 1780 (1992). We remand with instructions for further proceedings.
Factual History
In 1973, petitioner brutally stabbed and killed the postmaster of the Kansas City, Kansas, post office. In an opinion filed by our Supreme Court in 1979 in relation to an earlier application for discharge, the court summarized the facts concerning petitioner’s case as follows:
“Noel, a black male, has never married. He was approximately 38 years old at the time of commitment. Prior to the homicide, he was described as a quiet man who apparently had never broken the law, even to the point of acquiring a traffic ticket. Throughout his life he was characterized as a “loner’, unable to make friends or trust anyone. These characteristics began in childhood and became more pronounced as the years went by. Feelings of persecution developed, with Noel believing that people were laughing at him, ridiculing him, and plotting against him. In time, the feelings of persecution deepened and became the dominant factor in his life. In 1972 he was working for the United States Post Office in Wyandotte County. By this time his condition had deteriorated to such a degree that outsiders were noticing that something was wrong. In 1972 Noel was complaining to the union steward and other authorities at the post office about plots against him and his sisters. The union steward concluded Noel had a serious psychiatric problem and urged Noel’s family to seek psychiatric treatment for him. As a result thereof, in June, 1972, Noel became a patient in the psychiatric ward of a Veterans Administration Hospital.
“In the V.A. Hospital Noel’s illness was diagnosed as paranoid schizophrenia. Even as early as 1972, the object of Noel’s delusions was the United States Postal Service. With tranquilizing medication, Noel’s symptoms were controlled. He was discharged from the hospital after a short stay, with instructions to continue taking the medication. Noel stopped taking the medication, apparently, shortly after his discharge. The delusions resurfaced with ever increasing intensity. Noel concluded the post office was going to force his sisters into prostitution; he saw postal trucks and their drivers as being armed with machine guns; and he believed a great postal conspiracy existed to harm him and his sisters. The postmaster, in Noel’s mind, became the head of the conspiracy and his chief tormentor. Voices told him he must kill the postmaster to end the danger.
“On November 29, 1973, after some two weeks of planning, Noel drove to the Kansas City, Kansas, post office, lawfully parked his car, concealed a long knife on his person, walked into the postmaster’s office, and stabbed the postmaster to death (inflicting nine separate wounds). After having completed the task he came to do, he remained in the office and offered no resistance when arrested.
“Noel was originally charged with murder in the federal court. Subsequently, this charge was dismissed and he was charged with first degree murder in the state court. While the federal charge was pending, Noel was examined, at federal request, by Dr. William V. McKnelly, Jr. Dr. McKnelly contacted the V.A. Hospital and obtained the data on Noel’s prior hospitalization. He testified at the state trial. The doctor concurred with the V.A. diagnosis of paranoid schizophrenia and characterized the V.A.’s release of Noel as a blunder. Dr. McKnelly’s testimony was thorough and showed extensive knowledge of Noel’s background and condition. The bottom line of the McKnelly opinion is that Noel is and always will be a paranoid schizophrenic; that his is an extreme case of the disease; that Noel’s potential for violent acts will remain; and that the disease may be suppressed in a structured setting with a low stress factor and daily appropriate administration of tranquilizing medication.
“At trial Noel was found not guilty because of insanity and he was committed to the State Security Hospital at Lamed. He was admitted to that facility on March 20, 1974.” In re Noel, 226 Kan. 536, 541-42, 601 P.2d 1152 (1979).
On April 13, 1990, petitioner filed a K.S.A. 60-1501 petition in the Pawnee County District Court. The petition alleged: (1) that he was being held on “[f]alse and trumped up charges”; (2) that his confinement and restraint was unlawful; and (3) that he had been denied annual hearings for a 10-year period. For reasons which are not clear from the record, the district court did not directly consider petitioner’s action as a habeas corpus proceeding. Instead, the court appointed an attorney to represent petitioner and a notice was sent to the Clinical Director of the Larned State Security Hospital indicating that petitioner had requested an annual hearing to which he was entitled pursuant to K.S.A. 1991 Supp. 22-3428a.
At the hearing on the petition, the court considered a written Forensic Staff Conference Summary from members of the staff of the State Security Hospital dated April 20, 1990, and a written summary of an independent psychiatric evaluation performed by Dr. William S. Logan, a psychiatrist and director of the Department of Law and Psychiatry at the Menninger Clinic in Topeká. The court also heard oral testimony from Dr. Logan; from Harold Dixon, a psychologist on the staff of the State Security Hospital; and from Dr. William R. Suleiman, a staff psychiatrist with the State Security Hospital, all of whom had recently interviewed Noel.
All of the witnesses agreed upon a diagnosis of paranoid schizophrenic, chronic. Dixon and Dr. Suleiman classified this condition as “in remission.” Dr. Logan disagreed with any finding that petitioner’s condition was in remission.
The evidence showed petitioner’s condition has existed since at least 1972. He has exhibited no physical violence since 1974, and although petitioner has made some veiled threats against others, he has never threatened anyone with the immediate apparent ability to carry out those threats. Petitioner has generally been cooperative, compliant, and friendly toward others.
Petitioner was further characterized as quiet, withdrawn, suspicious of others, and guarded. He isolates himself from others, has few peer relationships, and reveals little about his inner thoughts.
Prior to admission, petitioner indicated experiencing auditory hallucinations in the form of voices that spoke to him and which had directed him to seek out and kill the postmaster. Petitioner has denied experiencing any such auditory hallucinations since his admission to the State Security Hospital, although Dr. Suleiman pointed out that this fact is difficult to confirm due to petitioner’s reluctance to be open about his thoughts.
Petitioner has received no psychotropic medications during the past several years. He had previously received thorazine, followed by mellaril, followed by prolixin, but in 1986 he began to experience tardive dyskinesia, a movement disorder, as a side effect, and his medication was discontinued. Dr. Suleiman indicated that he did not believe psychotropic drugs would be helpful to petitioner’s condition.
Petitioner’s therapy is limited to activity therapy and milieu therapy. These are aimed primarily at improving his socialization. Petitioner receives no other treatment addressing his mental condition, and Dr. Logan described this program as essentially custodial.
Petitioner maintains the fixed delusional system which caused him to kill the postmaster. He refuses to admit that he killed the postmaster. At times he indicates that he believes the postmaster is still alive. At other times he indicates that a man named Ellsworth may have been the true killer. Petitioner maintains he only inflicted superficial wounds upon the postmaster and that the wounds he inflicted do not match the wounds indicated by the autopsy report.
Petitioner still apparently believes that one of his co-workers at the post office retained the postmaster to kill him and harm his family. He also continues to believe that his own brother-in-law was an accomplice of the postmaster and was also guilty of raping petitioner’s sister. When recently asked what he would do if he was released and he met the postmaster, petitioner replied, “If I find him I will kill him.”
The evidence further indicated that on August 5, 1989, petitioner, in a written complaint concerning a sweater that he believed had been stolen, wrote “I’ve been missing my green sweater worth $35.00 and if I ever suspect any aide of stealing I most certainly will burst his mother fucking skull. I’m doing tíme on some white mans [sic] crime and do not intend to be fucked with but I’m not suicidal however, I can be homicidal where true justice is abused.” There was also evidence presented of other less recent notes written by petitioner containing similar threats.
Dixon concluded that petitioner remains potentially harmful to others due to his lack of insight and felt the risk of harm to others would increase if he were to be subjected to the stresses he might encounter outside a structured hospital setting. Dr. Suleiman essentially agreed with this assessment.
Dr. Logan testified that petitioner’s lack of insight and his expressed unwillingness to cooperate in any aftercare program if released made either discharge or conditional release inappropriate. Dr. Logan expressed particular concern with the danger that petitioner might misidentify someone as the postmaster and act upon that misidentification. While Logan felt that transfer outside a hospital setting would be potentially dangerous to others, he believed petitioner could be transferred to a less restrictive state hospital setting. Dr. Logan apparently based this opinion on his belief that petitioner gives warning by writing notes when he is angry and that this would serve to alert hospital staff to the need for clinical intervention before petitioner could act on his anger.
After hearing all the evidence, the district court found that petitioner was likely to cause harm to others if removed from the structured setting of Lamed State Security Hospital and ordered that he remain committed there.
CONDITIONAL RELEASE
In order to address the first issue raised by petitioner we must closely examine the relevant statutory framework. K.S.A. 1991 Supp. 22-3428a authorizes an annual hearing, when requested by the committed patient, to consider discharge or conditional release. The relevant sections of that statute provide:
“(3) At the hearing the committed person shall have the right to present evidence and cross-examine the .witnesses. The court shall receive all relevant evidence, including the written findings and recommendations of the chief medical officer of the state security hospital or state hospital where the person is under commitment, and shall determine whether the committed person will be likely to cause harm to self or others if discharged. At the hearing the court may make any order that a court is empowered to make pursuant to subsections (3), (4) and (5) of K.S.A. 22-3428 and amendments thereto. If the court finds by clear and convincing evidence the committed person will not be likely to cause harm to self or others if discharged, the court shall order the person discharged; otherwise, the person shall remain committed or be conditionally released.”
K.S.A. 1991 Supp. 22-3428(7) provides:
“As used in this section and K.S.A. 22-3428a and amendments thereto, likely to cause harm to self or others’ has the meaning provided by K.S.A. 59-2902 and amendments thereto.”
K.S.A. 1991 Supp. 59-2902(g) defines “ ‘[l]ikely to cause harm to self or others’ ” to mean:
“(1) Is likely, in the reasonably foreseeable future, to cause substantial physical injury or physical abuse to self or others or substantial damage to another’s property, as evidenced by behavior causing, attempting or threatening such injury, abuse or damage; or
“(2) is substantially unable, except for reason of indigency, to provide for any of the person’s basic needs, such as food, clothing, shelter, health or safety causing a substantial deterioration of the person’s ability to function on the person’s own.”
Petitioner contends that, notwithstanding a finding that he is likely to cause harm to himself or others if unconditionally discharged, the court is authorized to consider his conditional release.
At trial, the district court stated:
“It is my opinion that I have a very narrow issue to determine on applications for review under 22-3428(a) [sic]. And that is if the proposed patient is likely to cause harm to self or others. If I make that determination then the only thing I can do is to commit him back to the institution. If I don’t find him to be a danger to himself or others then I formulate, Mr. Fuller, a conditional release plan.”
Petitioner contends this statement demonstrates the district court, once finding that he was likely to cause harm to others, erred by then refusing to go on to consider conditional release.
We believe there is merit to petitioner’s claim. The relevant portion of K.S.A. 1991 Supp. 22-3428a(3) provides: “If the court finds by clear and convincing evidence the committed person will not be likely to cause harm to self or others if discharged, the court shall order the person discharged; otherwise, the person shall remain committed or he conditionally released.” (Emphasis added.) Interpretation of a statute is a question of law. State v. Miller, 15 Kan. App. 2d 566, 567, 811 P.2d 1256 (1991). By the clear and unambiguous language of K.S.A. 1991 Supp. 22-3428a(3), the district court, after finding the committed patient likely to cause harm to self or others if unconditionally discharged, may still consider a conditional discharge.
K.S.A. 1991 Supp. 22-3428 and K.S.A. 1991 Supp. 22-3428a must clearly be considered “in pari materia.” K.S.A. 1991 Supp. 22-3428a provides that, in a hearing initiated by the committed patient, the district court may make any order it is empowered to make pursuant to sections (3), (4), and (5) of K.S.A. 1991 Supp. 22-3428. K.S.A. 1991 Supp. 22-3428(3) provides:
“At the conclusion of the hearing, if the court finds by clear and convincing evidence that the patient will not be likely to cause harm to self or others if released or discharged, the court shall order the patient discharged or conditionally released, otherwise the court shall order the patient to remain in the state security hospital or state hospital where the patient is under commitment. If the court finds by clear and convincing evidence presented at the hearing that the release or discharge of the patient will not be likely to cause harm to self or others if the patient continues to take prescribed medication or to receive periodic psychiatric or psychological treatment, the court may order the patient conditionally released in accordance with subsection (4). If the court orders the conditional release of the patient, the court may order as an additional condition to the release that the patient continue to take prescribed medication and report as directed to a person licensed to practice medicine and surgery to determine whether or not the patient is taking the medication or that the patient continue to receive periodic psychiatric or psychological treatment.” (Emphasis added.)
There is every reason to believe that the legislature, in enacting K.S.A. 1991 Supp. 22-3428a, intended that due consideration be given by the district court to protection of the public when deciding whether to grant conditional release. K.S.A. 1991 Supp. 22-3428(3) states that the court “may” (not “shall”) grant conditional release. Therefore, conditional release pursuant to K.S.A. 1991 Supp. 22-3428a is a decision left to the discretion of the district court.
Furthermore, when K.S.A. 1991 Supp. 22-3428a is read in conjunction with K.S.A. 1991 Supp. 22-3428(3) and (4), it is clear the legislature intended that the district court grant conditional release only when the conditions of the release will adequately insure that the patient will not be likely to cause harm to self or others. If adequate safeguards cannot be crafted, then the patient should not be discharged. Given that petitioner has already indicated his unwillingness to participate in any aftercare program, our remand to the district court to consider conditional release may be an exercise in futility. Nevertheless, we cannot say with certainty that no conditions of release could be imposed that would insure the safety of the public. Therefore, we remand with instructions to the district court to consider conditional release under the statutory scheme earlier discussed.
Petitioner further contends that the district court failed to consider the definition of the term “likely to cause harm to self or others” contained in K.S.A. 1991 Supp. 59-2902(g) when making its findings on the issue of his dangerousness to others. The court expressly found that petitioner was “likely to cause harm to others” and there is no evidence to demonstrate the court was unaware of the statutory definition of the terms used. The court’s findings were clearly supported by substantial competent evidence of a clear and convincing nature.
LESS RESTRICTIVE ENVIRONMENT
Petitioner contends that the district court should have considered and ruled upon his request of transfer for treatment in the least restrictive environment. Petitioner, as we understand, was seeking transfer from the State Security Hospital at Lamed to Osawatomie State Hospital or to the less restrictive state hospital in Lamed. The State contends that only the chief medical officer at the State Security Hospital, and not the district court, is statutorily authorized to make decisions concerning transfer and placement. The court did not expressly rule on petitioner’s request for transfer, so its reasoning on this matter is not clear to us.
K.S.A. 1991 Supp. 22-3428a(l) states that a hearing pursuant to that statute is to “determine whether or not the person will be likely to cause harm to self or others if discharged.” K.S.A. 1991 Supp. 22-3428a(3) provides that at this hearing the court is empowered to make any order authorized by K.S.A. 1991 Supp. 22-3428(3), (4), and (5). None of these provisions authorize the court to consider a transfer to a less restrictive setting or to consider any other issues other than discharge, conditional re lease, or recommitment. K.S.A. 1991 Supp. 22-3428(5) allows the court to order the patient to a state hospital, but this is only when the patient has been conditionally released and is failing to comply with the conditions of the conditional release.
If petitioner’s petition was based solely on the authority of K.S.A. 1991 Supp. 22-3428a, the district court would not have subject matter jurisdiction to consider his request for transfer. The original petition, however, was in the form of a habeas corpus action pursuant to which the district court would clearly have jurisdiction to consider this issue. See In re Jones, 228 Kan. 90, 104-05, 612 P.2d 1211 (1980). We do not believe petitioner should be penalized just because the court chose to treat his habeas corpus petition only as a request for his annual hearing.
The next question to be addressed is whether the district court was authorized or required to grant petitioner’s request for placement in a less restrictive environment. The United States Supreme Court has avoided addressing the issue of whether placement in the least restrictive institutional setting is a requirement of substantive due process. Other jurisdictions seem to have uniformly rejected finding such a right except where the state legislature has specifically provided a statutory right. See S.H. v. Edwards, 860 F.2d 1045, 1046 (11th Cir. 1988), cert. denied 491 U.S. 905 (1989), vacated, reh. en banc granted 880 F.2d 1203 (11th Cir. 1989); Lelsz v. Kavanagh, 807 F.2d 1243, 1247, 1251 (5th Cir. 1987); Gieseking v. Schafer, 672 F. Supp. 1249, 1266 (W.D. Mo. 1987). Kansas has created no statutory right to transfer or placement into the least restrictive setting.
K.S.A. 1991 Supp. 22-3428(2) states: “Whenever it appears to the chief medical officer of the state security hospital that a person committed under this section is not dangerous to other persons, the officer may transfer the person to any state hospital.” Transfer under this section is left to the discretion of the chief medical officer. Furthermore, the legislature clearly intended that public safety be a significant consideration when determining whether a patient is to be transferred. The intent was clearly to avoid any transfer while the patient remained dangerous to others. There is a rational basis for this policy, given that only the State Security Hospital provides substantial and ongoing security as a basic part of its program and a staff which presumably has the greatest expertise in evaluating and treating potentially dangerous patients.
The United States Supreme Court has held that the Due Process Clause does not require a hearing when the State decides to transfer state prisoners. Olim v. Wakinekona, 461 U.S. 238, 244-45, 75 L. Ed. 2d 813, 103 S. Ct. 1741 (1983). Logic indicates that no hearing would be required when the State decides not to transfer a prisoner. The Kansas Legislature has made the decision whether to transfer a patient one of purely administrative discretion. Administrative decisions are ordinarily reviewable pursuant to K.S.A. 77-501 et seq. Given the district court’s factual finding that petitioner is dangerous to others, there is no valid basis for finding the hospital’s failure to transfer petitioner to be unreasonable or erroneous. See K.S.A. 77-621.
RECENT STATUTORY AMENDMENTS AND CASE LAW
At oral argument, in addition to the parties’ written briefs, the defendant requested that we consider the recently enacted amendments to K.S.A. 1991 Supp. 22-3428 contained in L. 1992, ch. 309, § 3 and the recently decided United States Supreme Court case of Foucha v. Louisiana, 504 U.S. _, 118 L. Ed. 2d 437, 112 S. Ct. 1780 (1992), in conjunction with the statutory scheme discussed above.
L. 1992. ch. 309. § 3
K.S.A. 1991 Supp. 22-3428 is primarily concerned with the procedures for hospital-initiated transfer, discharge, and conditional release of insanity acquittees, while procedures for patient-initiated release are dealt with by K.S.A. 1991 Supp. 22-3428a. L. 1992, ch. 309, § 3 does not directly amend K.S.A. 1991 Supp. 22-3428a, the statute pursuant to which petitioner sought release. K.S.A. 1991 Supp. 22-3428a authorizes the district court, at the patient-initiated hearing, to make any order it would be empowered to make pursuant to K.S.A. 1991 Supp. 22-3428(3), (4), and (5), and L. 1992, ch. 309, § 3 amends K.S.A. 1991 Supp. 22-3428(3). K.S.A. 1991 Supp. 22-3428(2), before L. 1992, ch. 309, § 3 was enacted, authorized patient transfer to another state hospital when it appeared to the chief medical officer of the state security hospital that the patient was no longer dangerous to others. Even after such a finding was made, the decision of whether to make such a transfer was still left to the discretion of the chief medical officer.
The 1992 amendments to K.S.A. 1991 Supp. 22-3428(2) and (3) now place the final decision of whether to transfer a patient in the district court. Transfer under 22-3428 is still to be initiated by the chief medical officer, but the district court must then hold a hearing to determine whether the patient is likely to cause harm to himself or others if transferred. If the court finds by clear and convincing evidence the patient will not be likely to cause harm to self or others if transferred, the statute, as now amended, requires that the court shall order the patient transferred; the decision at that point is no longer discretionary. The statutory language in the amendments does not clearly authorize the district court to order transfer pursuant to K.S.A. 1991 Supp. 22-3428a where the action is not initiated by the chief medical officer. In any event, none of these changes are relevant to our case as L. 1992, ch. 309, § 3 does not have retrospective application.
“The fundamental rule is that a statute operates prospectively unless its language clearly indicates that the legislature intended it to operate retroactively.” State v. Sutherland, 248 Kan. 96, 106, 804 P.2d 970 (1991).
“The legislature is aware of [the Kansas Supreme Court’s] established rules of statutory construction. The legislature is aware, and has, on many occasions, used specific language to clearly set forth whether a statute is to be applied prospectively or retrospectively.” 248 Kan. at 106. No language authorizing retrospective operation appears in L. 1992, ch. 309, § 3.
“An exception to the fundamental rule [of prospective operation of statutes] is that if the statutory change does not prejudicially affect the substantive rights of the parties and is merely procedural or remedial in nature, it applies retroactively.” (Emphasis in original.) 248 Kan. at 106.
L. 1992, ch. 309, § 3 clearly creates a substantive right to transfer upon the proper findings, and so is not merely procedural or remedial in nature.
We conclude the amendments in L. 1992, ch. 309, § 3 relevant to the appeal before us arfe prospective only and so cannot affect the outcome of the present case.
Foucha v. Louisiana
In Foucha v. Louisiana, 504 U.S. _, 118 L. Ed. 2d 437, 112 S. Ct. 1780 (1992), Terry Foucha, a defendant in a criminal case, had been found not guilty by reason of insanity and committed to a mental hospital. Approximately four years later, the superintendent of the mental hospital to which Foucha was committed recommended that Foucha be discharged or released. A hearing panel was convened at the institution to consider his case. The panel reported that there had been no evidence of Foucha’s mental illness since his admission. Two doctors appointed by the trial court to examine Foucha found he was in remission from mental illness, but stated that they were unable to certify that Foucha would not constitute a menace to himself or others if released. One of the doctors testified that Foucha had an antisocial personality, but that this condition did not constitute a mental disease and was unbeatable. 118 L. Ed. 2d at 444-45.
Under the statutory scheme in Louisiana, to justify continued commitment of insanity acquittees, the State was not required to prove anything; the statute placed the burden of proof on the patient to show that he was no longer dangerous. 118 L. Ed. 2d at 449. The statutory scheme did not require the additional finding that the patient wás also still mentally ill. The trial court ruled that Foucha was still dangerous to himself and others and, under the Louisiana statutory scheme, ordered him returned to the mental institution. 118 L. Ed. 2d at 445.
The United States Supreme Court concluded Foucha’s continued commitment was a violation of due process, holding that a “ ‘committed acquittee is entitled to release when he has recovered his sanity or is no longer dangerous,’ [Citation omitted] i.e. the acquittee may be held as long as he is both mentally ill and dangerous, but no longer.” (Emphasis added.) 118 L. Ed. 2d at 446. Because Louisiana did not contend that Foucha was still mentally ill, the Supreme Court held that Foucha must be released. 118 L. Ed. 2d at 447.
In addition, the Foucha Court also held that the Louisiana statute was unconstitutional because it discriminated against insanity acquittees in violation of the Equal Protection Clause of the 14th Amendment. Although the Court recognized that insanity acquittees may be treated differently in some respects from those subject to civil commitment, it seemed to suggest that continued commitment must be based on a showing of insanity and dangerousness by clear and convincing evidence, with the burden of proof placed on the State. 118 L. Ed. 2d at 451-52.
The Kansas statutory scheme, like that of Louisiana, requires only a showing of dangerousness to justify continued commitment. Like Louisiana, it does not require proof that the patient is also mentally ill. The burden of proof is also placed upon the patient to prove he or she is not dangerous. See K.S.A. 1991 Supp. 22-3428(3) and K.S.A. 1991 Supp. 22-3428a(3).
The current statutory scheme used to determine the need for continued commitment of insanity acquittees violates the Due Process and Equal Protection Clauses of the 14th Amendment by not placing the burden of proof upon the State to show by clear and convincing evidence both the committed person’s continued insanity and dangerousness. As required by Foucha v. Louisiana, we engraft such requirements into the Kansas statutory scheme.
The court in Foucha did hold that a state may originally commit a person found not guilty by reason of insanity without showing by clear and convincing evidence the two statutory preconditions to commitment because it is proper to infer from such a verdict that the person was still mentally ill and dangerous at the time of the commitment. 118 L. Ed. 2d at 445-46. There is no evidence then that petitioner’s commitment was improper. However, there was no finding in this case, as with Foucha, that petitioner is no longer mentally ill. The testimony of the witnesses was conflicting on this matter and the court did not make a finding of fact. We remand the cause for a new hearing with instructions to the district court concerning the State’s burden of proof necessary to justify continued commitment.
Remanded for further proceedings. | [
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REES, J.:
This is a declaratory judgment action in which defendants April Rosen, James Rosen, Jr., and Ginger Lee Rosen appeal from the summary judgment entered in favor of plaintiff Farmers Insurance Company, Inc. (Farmers). We affirm.
The primary subject here involved is a determination of the limits of Farmers’ exposure under an automobile liability insurance policy issued by it.
On February 9, 1989, 17-year-old defendant Christopher Lind, while driving a 1982 Dodge Rampage pickup truck, struck a pedestrian, defendant April Rosen, a daughter of defendants James and Ginger Rosen. April sustained serious physical injuries. The pickup was owned by Christopher’s parents, defendants Lanny and Linda Lind.
At the time of the accident, there was in full force and effect an automobile liability insurance policy issued by Farmers to Lanny and Linda. Under the policy, Lanny and Linda were the named insureds; the pickup was the designated vehicle. As a family member, Christopher was an insured person under the policy.
There also was in full force and effect at the time of the accident a homeowners policy issued by Farmers to Lanny and Linda.
The automobile policy fixed Farmers’ limits of liability at $100,000 per person and $300,000 per occurrence. By prosecuting this action, Farmers has sought , a determination that its liability exposure for all claims asserted by the three Rosens is limited to the automobile policy’s $100,000 per person limit and does not extend to that policy’s $300,000 per occurrence limit as claimed by the Rosens. Farmers has also sought a determination that it has no liability under the homeowners policy. The trial court’s decision in favor of Farmers on both contentions has brought about this appeal.
Farmers’ automobile policy recites:
“[Farmers agrees] ... to insure you subject to all the terms of this policy. [Farmers] will insure you for the coverages and the limits of liability shown in the Declarations of this policy [$100,000 per person; $300,000 per occurrence].
“[Farmers] will pay damages for which any insured person is legally liable because of bodily injury to any person . . . arising out of the ownership, maintenance or use of a [motor vehicle],
“1. The bodily injury liability limit for ‘each person’ [$100,000] is the maximum for bodily injury sustained by one person in any occurrence. Any claim for loss of consortium or injury to the relationship arising from this injury shall be included in this limit.
“2. Subject to the bodily injury liability limit for ‘each person’ [$100,000] the bodily injury liability limit for ‘each occurrence’ is the maximum combined amount for bodily injury sustained by two or more persons in any occurrence [$300,000].”
“Accident or occurrence means a sudden event . . . resulting in bodily injury . . . neither expected nor intended by the insured person.
“Bodily injury means bodily injury to or sickness, disease or death of any person.
“Damages are the cost of compensating those who suffer bodily injury . . . from an accident.”
“4. We will pay no more than the maximum limits provided by this policy regardless of the number of . . . insured persons, claims [or] claimants . . . .”
Farmers’ homeowners policy provides:
“[Farmers] shall pay all damages from an occurrence which the insured is legally liable to pay because of bodily injury . . . covered by this policy.” "[OJccurrence means: a sudden event . . . resulting in bodily injury . . . neither expected nor intended by the insured.
“Bodily injury means bodily harm, sickness or disease, including care, loss of services and death resulting from the injury.
“[Farmers does] not cover bodily injury . . .:
5. Arising out of ownership, maintenance, use, loading or unloading of:
b. a motor vehicle owned or operated by ... an insured.
6. Arising out of the entrustment of any . . . motor vehicle. Entrustment means the permission you give to any other person for the use of any . . . motor vehicle owned or controlled by you.”
“ ‘[Y]ou’ . . . [means] the ‘named insured’ shown in the Declarations [Lanny L. Lind and Linda R. Lind].”
Farmers’ automobile policy is free of the ambiguity existing in the policy at issue in Farm Bureau Mut. Ins. Co. v. Winters, 14 Kan. App. 2d 623, 797 P.2d 885 (1990), aff’d 248 Kan. 295, 806 P.2d 993 (1991). In Winters, it was held that the per person/ per occurrence liability limits provisions of Farm Bureau’s automobile policy were ambiguous. The Farmers’ automobile policy now before us subjects the per occurrence limit to the per person limit, a provision missing from the automobile policy in Winters. The ambiguity problem found and resolved in Winters does not exist here.
The Rosens assert that “because of” April’s physical injury, James and Ginger each have a claim for ‘loss of consortium, and medical bills and expenses.” On this appeal, Farmers concedes that (1) under its automobile policy it has promised to pay damages for which any insured person is legally liable because of bodily injury to any person and (2) “since loss of consortium and the payment of medical expenses are damages for which Farmers’ insured may be legally liable “because of’ bodily injuries to April Rosen, those damages come within the coverage provision of Farmers’ policy.” Farmers and the Rosens refer to James and Ginger Rosen’s claims as claims “for loss of care and loss of services.”
The real question as argued by Farmers and the Rosens is whether James and Ginger Rosen’s claims for loss of care and loss of services, here admittedly covered damages under Farmers’ automobile policy, come within the operation of the automobile policy’s per person limitation, with the result being that Farmers’ exposure under the automobile policy is limited to the policy’s $100,000 per person limit rather than the policy’s $300,000 per occurrence limit.
Resolution of this case requires insurance contract interpretation. The construction and effect of insurance contracts are questions of law to be judicially determined. None of the material facts here are disputed by the parties. Where the facts are admitted, it is for the court to decide whether they come within the terms of the insurance contract, and our function is the same as the trial court. Farm Bureau Mut. Ins. Co. v. Horinek, 233 Kan. 175, 177, 660 P.2d 1374 (1983).
“Insurance is a matter of contract. The parties to a contract of insurance may choose whatever terms they wish, and courts will enforce the policy as written so long as the terms do not conflict with pertinent statutes or with public policy. [Citations omitted.]
“. . . If there is uncertainty about the meaning of the policy, courts determine the meaning by applying rules of construction. These rules do not apply unless the court first determines that the policy is ambiguous. A policy is not ambiguous unless, viewing it as a whole, there is genuine uncertainty as to which one of two or more possible meanings is the proper meaning. [Citation omitted.] Ambiguity may not be created by viewing the policy in fragmentary segments. [Citations omitted.] And the rules of construction do not ‘ “authorize a perversion of the language, or the exercise of inventive powers for the purpose of creating an ambiguity where none exists.” ’ [Citations omitted.]” Penalosa Co-op Exchange v. Farmland. Mut. Ins. Co., 14 Kan. App. 2d 321, 323-24, 789 P.2d 1196, rev. denied 246 Kan. 768 (1990).
It is the Rosens’ contention that Farmers’ automobile policy covers all three Rosens’ claims up to the $300,000 per occurrence limit of liability, not the $100,000 per person limit, because James, Ginger, and April Rosen have each suffered “bodily injury.” They argue that James and Ginger Rosen’s claims for loss of care and loss of services because of April Rosen’s injuries are bodily injuries to James and Ginger. The Rosens assert there is ambiguity in the definition of bodily injury in the automobile policy: “Bodily injury means bodily injury to or sickness, disease or death of any person.”
The Rosens argue that the policy definition of bodily injury, by using the same two words to define the term, makes the policy ambiguous; therefore, an interpretation of the policy most favorable to the insured must prevail. See Anderson v. Nationwide Life Ins. Co., 6 Kan. App. 2d 163, 167, 627 P.2d 344, rev. denied 229 Kan. 669 (1981).
The Rosens further argue that the intent of Farmers and the Linds in the automobile policy is manifested in the homeowners policy, where “bodily injury” is defined as “[bjodily harm, sickness, or disease, including care, loss of service and death resulting from injury.” Thus, the Rosens say, James and Ginger each sustained “bodily injury” — loss of care and loss of services — thereby putting into effect the $300,000 limit per occurrence.
The threshold question confronting us is whether there is ambiguity in material language of Farmers’ automobile policy.
Again, the automobile policy provides:
“I. The bodily injury liability limit for ‘each person’ [$100,000] is the maximum for bodily injury sustained by one person in any occurrence. Any claim for loss of consortium or injury to the relationship arising from this injury shall be included in this limit.
“2. Subject to the bodily injury liability limit for ‘each person’ [$100,000] the bodily injury liability limit for ‘each occurrence’ is the maximum combined amount for bodily injury sustained by two or more persons in any occurrence [$300,000].”
Is there genuine uncertainty as to the per person/per occurrence limits of the automobile policy provisions? We do not think so. By the language utilized, it is plainly provided that applicability of the $300,000 per occurrence limit is subject to the $100,000 per person limit, and loss of consortium claims fall within the per person limit. In our view, a loss of care and services claim, generically, is a claim for loss of consortium. We do not find the automobile policy definition of “bodily injury” has created genuine ambiguity despite usage of the same term in defining itself. Cf. State v. Burton, 235 Kan. 472, 483, 681 P.2d 646 (1984) (“This court has consistently adhered to the position that no definition could make the concept of reasonable doubt’ any clearer than the words themselves.”).
In support of their argument that the automobile policy’s definition of bodily injury is ambiguous, the Rosens have placed substantial reliance upon a footnote to the majority opinion in the Oregon Court of Appeals split en banc decision in Allstate Ins. Co. v. Handegard, 70 Or. App. 262, 266 n.2, 688 P.2d 1387 (1984), rev. denied 298 Or. 704 (1985):
“According to the policy, “bodily injury’ means “bodily injury’ to any person, including loss of services. Apart from the high probability of confusion arising from any attempt to define a term by restating the term sought to be defined, this policy does not expressly answer the question from whose liability limits a loss of services claim must be recovered.2
“2 . . . If we read the policy to say that a single limit applies to physical injury to any person, including loss of services, we still do not know whether the claim for loss of services should be paid from the insurance applicable to the person who sustained the physical injury or from the limits applicable to the person who sustained the loss of services.”
Handegard has been discussed and distinguished. Bain v. Gleason, 223 Mont. 442, 726 P.2d 1153 (1986); Viking Insurance of Wisconsin v. Popkin, 102 Or. App. 660, 795 P.2d 1091 (1990). Without surprise, Handegard, Bain, and Popkin reveal that the particular policy language involved is crucial to a decision. The language of Farmers’ automobile policy clearly is distinguishable from that involved in Handegard. Handegard does not compel that we find ambiguity here.
We are convinced that, unlike the policy involved in Handegard, Farmers’ automobile policy unambiguously provides that claims for loss of care and loss of services attributable to a person’s physical injury fall within that particular person’s per person limit of $100,000. The Rosens cannot create ambiguity by simply focusing on a fragmentary segment of the definition of “bodily injury.”
In interpreting the terms of the automobile policy, we decline to adopt the definitional language in the homeowners policy (defining bodily injury to include “care, loss of service”). The two policies are separate. There is no tenable basis for transferral of the terms and language of one insurance contract to the other.
As previously mentioned, Winters, 14 Kan. App. 2d 623, is distinguishable. It affords the Rosens no support.
We are persuaded and hold that the pertinent language of Farmers’ automobile policy is unambiguous, that coverage under Farmers’ automobile policy for James and Ginger Rosen’s claims is subject to the policy’s $100,000 per person liability limit applicable to April Rosen’s claim, and that Farmers’ exposure for the three Rosens’ claims is limited to $100,000.
The Rosens additionally argue that the trial court erred in holding that the Linds’ homeowners policy affords no coverage for claims arising out of the accident. We disagree.
The homeowners policy provides: “[Farmers] shall pay all damages from an occurrence which the insured is legally liable to pay because of bodily injury . . . covered by this policy.”
As, the trial court did, we agree that exclusionary clause No. 6 applies. There, it is provided: “[Farmers does] not cover bodily injury ... 6. Arising out of the entrustment of any . . . motor vehicle. Entrustment means the permission you give to any other person for the use of any . . . motor vehicle owned or controlled by you.”
“It is the general rule that exceptions, limitations and exclusions to insuring agreements require a narrow construction on the theory that the insurer, having affirmatively expressed coverage through broad promises, assumes a duty to define any limitations on that coverage in clear and explicit terms.” Upland Mutual Insurance, Inc. v. Noel, 214 Kan. 145, 149, 519 P.2d 737 (1974).
The Rosens have alleged in their pleading that Lanny and Linda Lind wrongfully failed to educate, train, instruct, and familiarize their son, Christopher, with respect to the gear box, lever, and mechanism in the pickup involved in the accident. The Rosens insist that the exclusionary clause is inapplicable because they are not alleging Christopher Lind was incompetent, habitually careles^, or incapable of operating a vehicle with ordinary care. See Upland Mutual Insurance, Inc. v. Noel, 214 Kan. at 150-51.
The exclusionary clause deals with the entrustment of a motor vehicle, which is defined as “permission you give to any other person for the use of any . . . motor vehicle owned or controlled by you.” Lanny gave permission to his son to use the pickúp. For the purpose of the exclusionary clause, entrustment does not have to be negligent. The Rosens’ effort to distinguish negligent entrustment and deficient supervision or training is irrelevant. The exclusion applies to this case whether or not the entrustment was negligent and whether or not Lanny and Linda knew or should have known Christopher was incompetent, habitually careless, or incapable of operating a vehicle with ordinary care.
Farmers does not have a duty to defend or indemnify under its homeowners policy.
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Larson, J.:
This is a dispute over the contractual provisions of a saltwater disposal agreement and an oil and gas lease.
Parker and Parsley Development Company (Parker or lessee) appeals the court trial’s judgment in favor of George and Linda Colburn (Colburns or lessors) in excess of $272,000 and declaratory relief requiring additional payments.
Parker contends (1) the oil and gas lease granted an implied right to drill and operate a saltwater disposal well on the leased premises without payment to the lessors; (2) the trial court’s construction of the saltwater disposal agreement is contrary to its language and evidence of intent introduced at trial; and (3) the trial court erred by construing the saltwater disposal agreement so as to defeat the intent of one party to the agreement.
The issues are those of first impression to the Kansas appellate courts, and for a full understanding a detailed factual recitation is required.
The Colburns own a 40-acre tract on the east boundary of Stockton in Rooks County, Kansas. In 1981, they granted an oil and gas lease to G.N. Rupe, who thereafter drilled and completed four producing oil wells. Operators of producing oil wells located within the city of Stockton leased portions of the surface of the Colburns’ properties for tank batteries, and were interested in a location to drill a saltwater disposal well as Stockton ordinances did not permit disposal of salt water within the city limits.
Rupe contended he had the exclusive right to control disposal of salt water on the leased premises. The Colburns disagreed. This resulted in negotiations between Rupe and the Colburns for the drilling of a well to be utilized for salt water disposal. Several drafts of the proposed agreement were prepared and a meeting was held in February of 1984 in Hutchinson, Kansas, between the Colburns and their attorney, and Rupe and his accountant and attorney.
All parties agree there was no specific discussion at this meeting about salt water produced from the four Colburn wells on the premises covered by the oil and gas lease and “foreign” water, or that water produced off the leased premises.
Provisions from drafts prepared by both attorneys were utilized and, after negotiations, a saltwater disposal agreement was prepared and signed with the following provision applicable to this controversy:
“2. RENTAL PRICE AND PAYMENT TERMS. As consideration for the use of the LEASED PREMISES, RUPE shall pay to COLBURNS the amount of One and One-half Cents (1720) per barrel of liquid disposed into the subject disposal well. Should said salt water well not generate a minimum of One Thousand Dollars ($1,000.00) per year to the COLBURNS, COLBURNS shall have the right to cancel this lease, with thirty (30) days’ written notice.”
The parties established the priority for usage of the disposal well as follows:
“4. PRIORITY. RUPE agrees to offer disposal services to other operators in the surrounding area in a manner so as to maximize the income payable to COLBURNS. The priority for the disposal of water into this salt water disposal well shall be as follows:
A. Wells owned by the COLBURNS.
B. Wells owned by RUPE.
C. Wells of Operators whose tank batteries are located on the COL-BURNS’' property.
D. Other outside wells.
“RUPE represents that it will offer participation in the subject disposal well to third party operators of surrounding oil wells on a uniform basis subject to the above priority rights.”
The saltwater disposal agreement also contained the following provision, which is referred to in this opinion as the subordination clause:
“THIS LEASE shall be operated by RUPE in a manner not to conflict with the rights and duties created by Oil and Gas lease and Surface lease for Tank Battery described on page 1 of this agreement. In the event there are conflicting rights and duties, this Lease shall be subordinate to said Oil and Gas Lease and Surface Lease for Tank Battery.” “grant, lease, and let exclusively unto the lessee the hereinafter described land . . . for the purpose of . . . drilling, mining, and operating for . . . oil . . . and for constructing roads, laying pipe lines, building tanks, storing oil, building power stations, telephone lines and other structures thereon necessary or convenient for the economical operation of said land alone or conjointly with neighboring lands, to produce, save, take care of, and manufacture all of such substances, and for housing and boarding employees . . . .”
The portion of the oil and gas lease applicable to the issues within is the granting clause, which operates to
In March of 1984, Rupe completed the saltwater disposal well and shortly thereafter transferred all of his interest to Damson Oil Corporation. The agreement between Rupe and Damson provides that Damson is not required to pay a charge for disposal of salt water from the four Colburn wells. The Colburns consented to the assignment, but a copy of the Rupe-Damson agreement was not furnished to them.
Damson operated the saltwater disposal well from June of 1984 until June of 1985, and paid the Colburns one- and one-half cents per barrel for salt water disposed of in the well produced by the four Colburn oil wells and wells located off the leased premises. At that point, Damson unilaterally determined it did not have the obligation to pay for the disposal of salt water produced from the Colburns’ four wells and stopped doing so. The Colburns did not learn of this decision until March of 1987.
The Colburns demanded payment from Damson. Damson refused. The Colburns brought suit. Damson subsequently transferred its interest in the oil and gas lease and saltwater disposal agreement to Parker, the sole defendant herein.
Motions for summary judgment by both parties were denied and the matter proceeded to a court trial. The Colburns and their attorney testified it was clearly their intent that all barrels of liquid disposed of into the well should be paid for at the rate of one- and one-half cents per barrel regardless of the source.
Rupe, his accountant, and his attorney all testified the granting clause of the oil and gas lease gave Rupe the right to dispose of salt water from the leased premises at no cost and they had never heard of anyone paying for the disposal of on-premises water. Rupe’s attorney admitted that saltwater disposal agreements normally distinguished between on-premises and off-premises water, but such was not the case in this agreement.
Two experienced oil operators testified that it was the custom and practice of the oil industry not to pay for the disposal of on-premises water. However, agreements produced by the experts specifically provided that disposal of off-premises water would be compensated for, while disposal of on-premises water would not.
An operations foreman for Damson testified that while paying for disposal of on-premises water would be contrary to normal oil field practices, his reading of the disposal agreement would require Rupe to pay for disposal of on-premises water.
The evidence included a letter written by Rupe to the Colburns during the early stages of negotiations offering 10% of the income from “all outside water.” Parker argued this showed a clear intention to pay only for disposal of off-premises water. Testimony indicated that Rupe and his successors received 20 cents per barrel from other oil and gas operators for salt water disposed of from off the leased premises. The Colburns argued their acceptance of a lesser amount (IV20) per barrel instead of 10% of 20 cents (20) per barrel indicated they were to receive the smaller per barrel payment for all salt water disposed of in the well.
Economic testimony showed Parker had received substantial amounts from off-premises operators for disposal of water, which substantially lowered the cost of operating the disposal well. However, if Parker was compelled to pay the Colburns for disposal of on-premises water, the economic life of the Colburns’ lease would be reduced by at least one year with a resulting loss of oil and gas production and the income therefrom.
The trial court found no previous Kansas decision required a finding that the implied covenants of the granting clause included the right to inject salt water into the subsurface. The subordination provision was not deemed to be of assistance to the lessee because the granting clause did not refer specifically to injection of salt water, while the saltwater disposal agreement clearly stated the lessee would be obligated to pay one- and one-half cents per barrel for all liquid disposed of.
The trial court found that, notwithstanding the fact Rupe might have the right to dispose of on-premises water without payment, he negotiated a saltwater disposal agreement which gave him an additional valuable right to dispose of off-premises water to his economic benefit and in return thereof agreed to pay the Colburns for all water disposed of. The trial court applied a rule of strict construction, normally applied to oil and gas leases, to the saltwater disposal agreement, and found that the agreement required the lessee to pay the lessor for all water disposed of, and then rendered a money judgment in favor of the Colburns and declared Parker obligated to pay for all future water disposed of.
Although we reach the same conclusion as the trial court, we do so for somewhat different reasons. We first decide whether one of the implied covenants of an oil and gas lease allows for disposal without cost of on-premises water, and then turn to the specific wording of the agreements and the evidence considered by the trial court in reaching its conclusion.
Does a standard producers form 88 oil and gas lease permit an operator to drill and operate a saltwater disposal well on the leased premises in order to dispose of salt water produced from the operations; of that leaseP
Parker contends that because production and disposal of salt water is a necessary incident to oil production the granting clause of the oil and gas lease permits it to drill and operate a saltwater disposal well, or, alternatively, that the lease by implication grants the right to dispose of salt water. Finally, Parker asserts that an oil operator has a statutory right to dispose of salt water.
The trial court determined that the granting clause did not include by implication the right of an operator to inject salt water into the subsurface. The trial court’s determination is a conclusion of law over which this court has unlimited review. Hutchinson Nat’l Bank & Tr. Co. v. Brown, 12 Kan. App. 2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988).
We will not attempt to analyze the granting clause of various forms of oil and gas leases. While a 1962 version of the producers form 88 specifically speaks to injection of fluids into the subsurface, the 1942 version of the producers form 88 oil and gas lease involved herein does not. No express right to dispose of salt water is granted by this oil and gas lease.
Notwithstanding the absence of the express grant, Parker correctly asserts the right to dispose of salt water is created by implication and by statutory law. This right arises by the reasonable application of implied covenants to oil and gas leases, which have long been recognized by our Kansas courts. For a historical discussion of cases involving implied covenants, see Cohen, Implied Covenants in Kansas Oil and Gas Leases, 9 Kan. L. Rev. 7 (1960).
The production of salt water from the Colburns’ wells is a necessary and unavoidable result of the production of oil from this property. Trial testimony indicated the oil production is from the Arbuckle formation, which is water driven and initially produces a limited amount of water, but eventually produces huge quantities of water that Parker must safely and environmentally dispose of as a necessary and essential incident of the production of oil.
In Shaw v. Henry, 216 Kan. 96, 101, 531 P.2d 128 (1975), the Kansas Supreme Court affirmed a trial court finding that it was necessary to drill a saltwater disposal well in order to properly operate a lease.
The Supreme Court in Mai v. Youtsey, 231 Kan. 419, 424, 646 P.2d 475 (1982), quoted 1A Summers, The Law of Oil and Gas § 133, pp. 229-31 (1954 rev.) in holding an oil and gas lease creates by implication what is necessary to effectuate the grant:
“ ‘If in the grant or reservation of a separate interest in oil and gas the grantor does not expressly grant or retain such legal relations as are necessary for the production and operation of the land for oil and gas purposes, these relations are held to be created by implication.’ ”
See also McLeod v. Cities Service Gas Company, 131 F. Supp. 449 (D. Kan. 1955) (a mineral lessee may make reasonable use of leased land when carrying out legitimate object of the lease), aff’d 233 F.2d 242 (10th Cir. 1956); Thurner v. Kaufman, 237 Kan. 184, 188, 699 P.2d 435 (1985) (“Under an oil and gas lease, the lessee has the implied right to make reasonable use of the surface in order to develop the land for the oil and gas.”); 1 Pierce, Kansas Oil and Gas Handbook § 9.20, p. 9-18 (1986) (“The lessee is typically granted the right to use the leased land to conduct exploration, development, and production activities. If the lease does not expressly confer such rights, they will be implied.”).
Although Pierce recommends the right to dispose of substances through injection wells should be addressed in agreements separate from the oil and gas lease, he notes that, even without express grants, the oil and gas lessee has broad implied authority to use the leased land to conduct operations. 1 Pierce, Kansas Oil and Gas Handbook § 12.05, p. 12-8.
There is a surprising lack of clear and specific holdings in this area from our sister states, but those that exist favor our finding that the drilling and operating of a saltwater disposal well is an implied covenant of an oil and gas lease. The factual basis of each case is not identical, but the uniform result supports our decisions. See Leger v. Petroleum Engineers, Inc., 499 So. 2d 953 (La. App. 1986); Feland v. Placid Oil Company, 171 N.W.2d 829 (N.D. 1969); Cumberland Operating Co. v. Ogez, 769 P.2d 105 (Okla. 1988); TDC Engineering, Inc. v. Dunlap, 686 S.W.2d 346 (Tex. App. 1985). Our research indicated no case in which the standard oil and gas lease form had been construed to require payment by the lessee to the lessor for disposal of leased premises salt water.
In Kansas, the use of earthen pits for saltwater disposal, which undoubtedly resulted in pollution of fresh water strata, predictably led to control over saltwater disposal by legislative enactment. See Glicksman and Coggins, Groundwater Pollution I: The Problem and the Law, 35 Kan. L. Rev. 75, 167-68 (1986). In recent years, the Kansas Legislature has provided for control over the disposal of salt water in K.S.A. 1991 Supp. 55-901(a), which provides:
“The owner or operator of any oil or gas well which may be producing and which produces salt water or waters containing minerals in an appreciable degree shall have the right to return such waters to any horizon from which salt waters may have been produced, or to any other horizon which contains or had previously produced salt water or waters containing minerals in an appreciable degree, if the owner or operator of such well makes a written application to the state corporation commission for authority to do so, and written approval has been granted to the owner or operator after investigation by the state corporation commission.”
The Kansas Corporation Commission has been directed to adopt rules and regulations governing saltwater disposal. K.S.A. 1991 Supp. 55-901(b). Additional provisions exist governing penalties for the unlawful disposal of salt water. K.S.A. 1991 Supp. 55-904, K.S.A. 1991 Supp. 55-1003, and K.S.A. 1991 Supp. 55-1004. Pierce now observes that by Kansas statutory law, saltwater dis posal wells in a producing formation are a matter of right. 2 Pierce, Kansas Oil and Gas Handbook § 13.71, p. 13-49 (1989).
We hold the granting clause in an oil and gas lease includes an implied covenant to dispose of the salt water produced during operations by utilizing a saltwater disposal well drilled on the leased premises without additional compensation to the lessor. We hold that such a right is required in order for the production of oil and gas to be accomplished. Salt water from the premises of an oil and gas lease may be disposed of or injected in accordance with the rules of the Kansas Corporation Commission without payment to the lessors, absent a specific leasehold provision which otherwise provides. This is one of the implied covenants of the standard oil and gas lease and also a statutorily established right.
Is the trial court’s decision contrary to the language of the saltwater disposal contract and evidence of intent introduced at trial?
The trial court concluded that irrespective of Rupe’s right to dispose of salt water produced from the Colburns’ wells without payment, he negotiated for and obtained an agreement that gave him valuable additional rights for which the Colburns received an agreement requiring payment to them for all salt water disposed of into the disposal well.
The trial court further concluded that applying the subordination clause of the saltwater disposal agreement did not require judgment for Parker because there was no express right to inject salt water under the oil and gas lease while the saltwater disposal agreement clearly required payment for all water disposed of.
Parker’s argument is strengthened by our finding that the right to dispose of salt water is one of the implied covenants of an oil and gas lease, but this does not require judgment in Parker’s behalf.
The Colburns’ argument is more persuasive in contending the subordination clause concerned only the actual operations of the oil and gas lease and not payment under its expressed terms. They contend that the intent of the subordination clause was that if operation of the disposal well interfered with actual production of the oil and gas lease, then production must continue and the disposal well must be limited in its operations.
The Colburns further contend that even if Rupe had the implied right to dispose of salt water free of charge, he negotiated away that right in consideration of the right to dispose of offpremisés water into the disposal well. The Colburns logically assert the saltwater disposal agreement clearly provides they are to be paid one- and one-half cents per barrel for all salt water disposed of down the well and that no conflict arises between the two agreements.
The Colburns further assert that paragraph four entitled PRIORITY, which is the only provision in the agreement that distinguishes between on-premises and off-premises water, only addresses the priority of disposal and does not affect the payment terms of paragraph two. Both parties argue the agreements are not ambiguous and can easily be construed to obtain the result each promotes, although each construction predictably requires a diametrically opposite result.
In Wood River Pipeline Co. v. Willbros Energy Services Co., 241 Kan. 580, 582, 738 P.2d 866 (1987), the Supreme Court restated the fundamental legal concepts to be applied when the rights of parties relative to the terms of a written agreement are in controversy:
“ ‘The doctrine has been well established and frequently applied that where parties have carried on negotiations, and have subsequently entered into an agreement in writing with respect to the subject matter covered by such negotiations, the written agreement constitutes the contract between them and determines their rights. [Citations omitted.] The interpretation of a written contract which is free from ambiguity is a judicial function and does not require oral testimony to determine its meaning. [Citations omitted.] Ambiguity in a written instrument does not appear until the application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which one of two or more meanings is the proper meaning. [Citation omitted.] If a written contract is actually ambiguous concerning a specific matter in the agreement, 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.’ Hall v. Mullen, 234 Kan. 1031, 1037, 678 P.2d 169 (1984).”
“Whether an ambiguity exists in a written instrument is a question of law to be decided by the court.” Kennedy & Mitchell, Inc. v. Anadarko Prod. Co., 243 Kan. 130, 133, 754 P.2d 803 (1988). If the contract is ambiguous, the court can consider ex trinsic evidence to determine its meaning. Wood River Pipeline Co., 241 Kan. at 582. This court on appeal may construe and determine the legal effect of the saltwater disposal agreement. See Kennedy & Mitchell, Inc., 243 Kan. at 133.
Several rules of construction are relevant to this situation:
“First, words cannot be written into the agreement imparting an intent wholly unexpressed when it was executed. Quenzer v. Quenzer, 225 Kan. 83, 85, 587 P.2d 880 (1978). The intent of the parties and the meaning of a contract are to be determined from the plain, general, and common meaning of terms used. Johnson v. Johnson, 7 Kan. App. 2d 538, 542, 645 P.2d 911, rev. denied 231 Kan. 800 (1982). Second, in construing a written instrument, language used anywhere in the instrument should be considered and construed in harmony with all provisions and not in isolation. Kennedy v. Classic Designs, Inc., 239 Kan. 540, 722 P.2d 504 (1986).” Wood River Pipeline Co., 241 Kan. at 586.
We do not agree with the trial court’s statement that the same rule would apply to the • construction of the saltwater disposal agreement as to the construction of an oil and gas lease (strictly against the lessee), citing Holmes v. Kewanee Oil Co., 233 Kan. 544, 552, 664 P.2d 1335 (1983), or its application of the general rule that “doubtful language in a contract is construed most strongly against the party preparing the instrument or employing the words concerning which doubt arises.” Wood River Pipeline Co., 241 Kan. at 586. A careful review of the record reveals both parties participated equally in drafting and negotiating the final written saltwater disposal agreement. “The general rule that doubtful language in a contract is construed against the drafter is of little consequence where the parties are of equal bargaining power and have each had an opportunity to fully examine proposed contract provisions before the contract is executed.” 241 Kan. 580, Syl. ¶ 6. The rule which must be applied here is that “[w]here an ambiguous contract is prepared jointly and equally by the parties, it will not be liberally or strictly construed against either party.” Crestview Bowl, Inc. v. Womer Constr. Co., 225 Kan. 335, Syl. ¶ 4, 592 P.2d 74 (1979).
The rental provision of the disposal well agreement does not distinguish between payment for on-premises and off-premises water, and specifically provides that “RUPE shall pay to COL-BURNS the amount of One and One-half Cents (1720) per barrel of liquid disposed into the subject disposal well.” This provision examined alone would clearly justify a holding that Rupe contracted away his right for free disposal of on-premises water in favor of greatly expanded rights and the opportunity for economic advantage by receipt of substantial payments for disposal of off-premises water on the Colburns’ property. We are required, however, to consider language used throughout the agreement and not limit our review to an isolated provision, no matter how persuasive it may be.
Paragraph four of the saltwater disposal agreement dealing with priority is phrased in terms of maximizing income to the Colburns, but does not indicate whether such maximization applies to income from saltwater disposal or from the oil and gas lease. If the Colburns receive payment for disposal of on-premises water, their income will be maximized under the saltwater disposal agreement, but testimony showed that the economic life of the Colburns’ wells would be shortened, resulting in decreased royalty income. This makes the phrase “maximize the income payable to COLBURNS” capable of different constructions and, therefore, ambiguous; however, this difference is not ultimately critical to the decision in this case.
The subordination clause in the saltwater disposal agreement is also capable of different constructions. The Colburns contend the intent of the subordination clause was to prevent interference by the operation of the disposal well with the production of oil and gas under the lease, while Parker asserts the clause was inserted to assure Rupe would not lose any express or implied rights granted by the oil and gas lease, specifically the implied right to dispose of on-premises salt water at no cost.
The subordination clause could be considered subject to the well-settled rule set forth in Smith v. Russ, 184 Kan. 773, 339 P.2d 286 (1959), that when there is an uncertainty in a contract between general terms and specific provisions, the specific provisions qualify the meaning of the general provisions. “[Sjpecific provisions express more exactly what parties intend than broad or general clauses which do not necessarily indicate that the parties had the particular matter in thought.” 184 Kan. at 779. Paragraph two specifically provides the Colburns are to be paid one and one-half cents per barrel for all liquid disposed of into the well and would control over the general provisions contained in the subordination clause.
Paragraph two further provides that the Colburns have the right to cancel the saltwater disposal agreement if the well does not gen erate income of $1,000 per year. Under this provision, if the only water being disposed of in the well is from the Colburns’ lease and they receive no payment for the water, they would presumably have the right to cancel the saltwater disposal agreement.
When considered as a whole, we agree with the trial court that the saltwater disposal agreement contains ambiguities requiring evidence of intent concerning the manner of payment.
The evidence of intent produced at trial was conflicting. The Col-burns’ testimony and that of their lawyer was clear and specific that they were to be paid for all salt water disposed of in the well. George Colburn did admit that he did not intend the saltwater disposal agreement to take away any rights arising under the oil and gas lease, but he was unaware that a lessee-operator had the right to dispose of salt water without paying the lessor a fee and, in fact, he thought he had the right to negotiate with any third party for a similar agreement.
Rupe testified that his intent at the time the saltwater disposal agreement was negotiated was to pay the Colburns only for off-premises salt water disposed of in the well. Rupe’s accountant and attorney offered similar testimony.
All the . parties agreed this direct issue was not discussed during the preliminary stages of the negotiations or during the meeting in which the saltwater disposal agreement was finalized.
The trial court made no factual determination based on the contention of either party concerning the early offer of 10% of income from “all outside water” and the “One and One- half Cents (1720) per barrel of liquid disposed into the subject disposal well” from the agreement. In the absence of these arguments resulting in a specific factual finding by the trial court, we believe both arguments to be inconclusive and of no benefit to either party on appeal.
We believe the evidence that Damson paid one- and one-half cents per barrel for disposal of on-premises water during the first year the disposal well was in operation is of considerable importance. This is a factual matter indicating a construction placed on the agreement by the parties, which is greatly persuasive. Further, Parker’s senior lease operator and operations foreman Allen Humphreys’ opinion that, despite industry custom, Parker would be obligated to pay for disposal of on-premises water as well as off-premises water supports the trial court’s finding.
Several expert witnesses who testified at trial on behalf of Parker clearly stated that the custom and practice in the oil industry would not require payment by a lessee-operator for on-premises saltwater disposal. Because of the trial court’s .finding that the agreement is ambiguous, this testimony was properly considered. See Havens v. Safeway Stores, 235 Kan. 226, Syl. ¶ 1, 678 P.2d 625 (1984). Saltwater disposal agreements previously utilized on other leases by two of the experts, however, specifically provided that the lessee would be entitled to dispose of salt water produced from any wells on the leased premises at no cost. The experts’ testimony and their exhibits, although produced by Parker, can logically be deemed compelling to the Colburns’ position.
Even Rupe’s attorney admitted that a saltwater disposal agreement should spell out that payment was only for off-premises water and that such a provision would be set forth in the usual agreement.
Based upon the evidence of intent introduced at trial, the trial court determined the Colburns were to be paid for all salt water, both on-premises and off-premises, disposed of in the well. When findings of fact are attacked for insufficiency of evidence or as being contrary to the evidence, this court’s
“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 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. [Citations omitted.]” Renner v. Monsanto Chemical Co., 187 Kan. 158, 168, 354 P.2d 326 (1960).
See Holmes v. Kewanee Oil Co., 233 Kan. at 546.
In Crestview Bowl, Inc. v. Womer Constr. Co., 225 Kan. at 340-41, Justice McFarland opined:
“In construing an ambiguous contract, a reasonable interpretation is sought. On this rule of construction, we held in Tate v. Stanolind Oil and Gas Co., 172 Kan. 351, 356, 240 P.2d 465 (1952), as follows:
‘Reasonable rather than unreasonable interpretations are favored by the law. (Brooks v. Mull, 147 Kan. 740, 747, 78 P.2d 879.) The meaning of a contract should never be determined by a critical analysis of a single or isolated provision but should always be ascertained by a consideration of all pertinent provisions. (Heckard v. Park, 164 Kan. 216, 219, 188 P.2d 926, 175 A.L.R. 605, 617.) Where ambiguity or uncertainty is involved the in tention of the parties is not ascertained by resort to a literal interpretation of an isolated provision but by a consideration of the instrument as a whole, the object sought to be obtained and other circumstances, if any, which tend to clarify the real purpose and intent of the parties. (Heckard v. Park, supra.) A practical and equitable construction of ambiguous terms of a contract should be adopted. (Berg v. Scully, 120 Kan. 637, 245 Pac. 119; Francis v. Shawnee Mission Rural High School, 161 Kan. 634, 640, 170 P.2d 807.)’ ”
It is not our role to pass on the credibility of witnesses or weigh conflicting evidence. Rosenbaum v. Texas Energies, Inc., 241 Kan. 295, 301, 736 P.2d 888 (1987); Cool v. Cool, 203 Kan. 749, 752, 457 P.2d 60 (1969).
Substantial competent evidence supports the trial court’s determination of the parties’ intent. Based upon our scope of review, the trial court did not err in its construction of the saltwater disposal lease. Although the lessee under an oil and gas lease has the implied right to dispose of salt water on the leased premises without payment to the lessor, that right may be bargained away by agreement between the parties.
Did the trial court err by construing the saltwater disposal agreement in such a manner so as to defeat the intent of one party to the agreement?
Everything we have stated regarding the preceding issue applies to this argument as well. Parker contends Rupe’s intention was clearly disregarded and the trial court made a contract for the parties instead of enforcing the existing one; it also raises for the first time on appeal that there was no meeting of the minds when the parties entered into the lease.
As we have previously held, the trial court did not err in its construction of the saltwater disposal agreement. “Interpreting a written contract is a judicial function.” Kauk v. First Nat’l Bank of Hoxie, 5 Kan. App. 2d 83, 87, 613 P.2d 670 (1980). As the trier of facts in this case, the trial court was required to construe the intent of the parties. Snodgrass v. State Farm Mut. Auto. Ins. Co., 15 Kan. App. 2d 153, 157, 804 P.2d 1012, rev. denied 248 Kan. 997 (1991). No matter in whose favor the trial court ruled regarding the issue of intent, the alleged intent of one party to the lease would have been defeated.
The trial court did not improperly make a contract for the parties or rewrite the lease. See Quenzer v. Quenzer, 225 Kan. 83, 85, 587 P.2d 880 (1978). The trial court properly construed the ambiguous agreements and made a realistic and justified legal interpretation.
Parker s suggestion that there was no meeting of the minds was not raised or considered until a post-trial statement was made by the trial court. It was not one of the issues specifically tried in the case and will not be considered by us for the first time on appeal. See Kansas Dept. of Revenue v. Coca Cola Co., 240 Kan. 548, 552, 731 P.2d 273 (1987).
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Pierron, J.:
Dasie M. Dixon (plaintiff-appellant) appeals the trial court’s granting of an additur increasing the jury’s verdict against David L. Prothro (defendant-appellee) instead of granting plaintiff’s motion for a new trial.
On February 27, 1985, cars driven by Dasie M. Dixon and David L. Prothro were involved in an automobile accident in Wichita, Kansas. Dixon filed suit against Prothro for damages causéd by the accident.
At trial, the jury found that Dixon was 49 percent at fault for the accident and Prothro was 51 percent at fault. In addition, the jury found that Dixon sustained the following damages:
Past and Present Damages:
Pain and Suffering 0
Disability 0
Mental Anguish 0
Necessary Medical Care, Hospitalization and
Treatment $2,900
Lpst Time or Earnings $7,600
Damages Reasonably Expected To Be Sustained in The Future:
Pain and Suffering 0
Disability 0
Mental Anguish 0
Necessary Medical Care Hospitalization and
Treatment $500
Lost Time or Earnings 0
TOTAL $11,000
Using the jury’s apportionment of fault, the court awarded Dixon $5,610.
Dixon filed a motion for a new trial, claiming the jury’s failure to award damages for pain, suffering, disability, and mental anguish was inconsistent with its award of medical expenses and lost earnings damages. The court denied Dixon’s motion for a new trial and Dixon appealed to this court.
In an unpublished opinion No. 62,678, filed September 29, 1989, this court held that “[s]ince [plaintiff’s] complaints all relate to pain and suffering, it was inconsistent and in part contrary to the evidence for the jury to award damages for past and future medical expenses and not award damages for pain and suffering.” This court affirmed the lower court on fault apportionment and reversed and remanded for a new trial on damages.
A second jury trial was held on the damages issue. Evidence was presented on the nature of Dixon’s injury, the cause of thé injury, medical expenses, pain and suffering, and economic loss due to the injury. The jury found Dixon sustained total damages of $1,741.12. That amount included:
Noneconomic Loss to Date $101.92
Future Noneconomic Loss 0
Medical Expenses to Date $518.20
Future Medical Expenses 0
Economic Loss to Date $1,121.00
Future Economic Loss 0
TOTAL $1,741.12
Using the previously determined fault percentages, the court granted judgment for Dixon for $887.97.
We note K.S.A. 1991 Supp. 60-249a requires the use of an itemized verdict form in a personal injury damages action. The statute requires noneconomic injuries and losses to be separated into three categories. The categories are pain and suffering, disability, and disfigurement and any mental anguish. K.S.A. 1991 Supp. 60-249a(a)(l). The verdict form presented to the second jury in this case did not conform to this requirement. It only listed the general category of noneconomic injuries and losses and not the three specific subcategories. However, neither party has raised this issue on appeal and there is no need for us to address it.
Dixon moved for a new trial, claiming the verdict was contrary to the evidence, the verdict was given under the influence of passion or prejudice, and misconduct of the jury. The trial court found “that based on the evidence — the uncontroverted evidence this jury’s verdict is inadequate.” The court proposed an additur to be accepted by both parties within 10 days and if the additur was not accepted by both parties, a new trial would be granted. The proposed additur increased medical expenses to date to $1,278.70 and economic losses to date to $6,828.64. Noneconomic loss to date remained unchanged at $101.92.
Prothro filed a motion to reconsider, alter, or amend, and to settle the journal entry. Prothro claimed the court used an incorrect procedure for the additur. The court agreed with Prothro and held that only Prothro must accept the additur. If Prothro accepted the additur, judgment would be entered for Dixon for 51 percent of the amount after additur. Prothro accepted the additur and the court entered judgment for Dixon for $4,202.53.
Dixon filed a motion to alter or amend the judgment, claiming the court erred and abused its discretion in granting the additur. The court denied the motion. Dixon then appealed to this court.
The issue before us is whether the trial court erred in increasing the amount of the jury’s verdict over the objection of the plaintiff.
“This court’s review of conclusions of law is unlimited. [Citations omitted.]” Hutchinson Nat’l Bank & Tr. Co. v. Brown, 12 Kan. App. 2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988). See State v. Dorsey, 13 Kan. App. 2d 286, 287, 769 P.2d 38, rev. denied 244 Kan. 739 (1989).
The plaintiff contends she was deprived of her constitutional right to a jury trial by the trial court’s entry of an additur over her objection and in lieu of a new trial. She claims she must consent to additur for it to be used in her case. In addition, the plaintiff asserts the trial court’s use of additur was beyond its jurisdiction.
The defendant, on the other hand, contends the trial court needed only the defendant’s, not the plaintiff’s, consent to order an additur and that the trial court’s use of additur itself is proper. Because the plaintiff has raised a constitutional issue, both Kansas and federal law and their relationship in the context of additur will be examined.
Because additur has been allowed on the same basis as remittitur in certain jurisdictions, a general discussion of remittitur is appropriate. 5 Am. Jur. 2d, Appeal & Error § 946. The basic rule is that when a trial court determines a jury verdict is inadequate, the court should grant the plaintiff a new trial or a new trial limited to damages. 11 Wright & Miller, Federal Practice and Procedure: Civil § 2815, 99 (1973). The court may not arbitrarily reduce damages. 11 Wright & Miller, § 2815 at 99. However, since 1922, remittitur has been used when it is apparent as a matter of law that certain identifiable sums should not have been included in the jury verdict. When that situation occurs, the court may condition the denial of a new trial upon plaintiff’s acceptance of a remittitur. 11 Wright & Miller, § 2815 at 99-100.
In other words, the plaintiff, as the affected party, has the option of reducing the damages to a level the court deems appropriate or submitting to the hazards of a new trial. Remittitur, however, is not proper if the verdict was the result of passion or prejudice. 11 Wright & Miller, § 2815 at 103.
Remittitur is uniformly accepted by the lower federal courts. 11 Wright & Miller, § 2815 at 100. Although there has been no express statutory authorization for remittitur in Kansas since 1964, the rule also is well established in Kansas that either a trial or appellate court may deny a new trial on plaintiff’s acceptance of a remittitur. Rood v. Kansas City Power & Light Co., 243 Kan. 14, 19, 755 P.2d 502 (1988); Ford v. Guarantee Abstract & Title Co., 220 Kan. 244, 275-76, 553 P.2d 254 (1976).
Our courts have also held that the use of an itemized verdict form, which may identify inappropriate damage categories and amounts, can negate our traditional requirement of plaintiff’s consent to a reduced verdict. Kansas State Bank & Tr. Co. v. Specialized Transportation Services, Inc., 249 Kan. 348, 819 P.2d 587 (1991).
Additur, however; has not been as well accepted by the courts. Additur occurs when a jury returns a verdict deemed insufficient by the court. The court then conditions its denial of plaintiff’s new trial motion on defendant’s acceptance of an increased damage award. 11 Wright & Miller, Federal Practice and Procedure: Civil § 2816, 106-07 (1973). There is substantial controversy and a split of authority over whether additur should be used to increase a jury’s insufficient verdict. 5 Am. Jur. 2d, Appeal & Error § 946, p. 373; 22 Am. Jur. 2d, Damages § 1030.
Although Kansas has a long history of permitting remittitur, the use of additur is a fairly new procedure in Kansas. In Rood, the court approved the use of additur, at least in certain circumstances. Rood was a personal injury action for injuries that occurred when plaintiff was hit by an object coming off a Kansas City Power & Light truck. 243 Kan. at 14-15. The plaintiff appealed a $2,000 jury verdict, claiming the trial court erred in not allowing a medical bill to be admitted into evidence. 243 Kan. at 15. The Supreme Court decided the trial court had erred and the evidence at trial showed the medical treatment had been reasonable and necessary. 243 Kan. at 17. The court ordered an additur of $580, the amount of the medical bill incorrectly kept out of evidence, if the defendant consented. If the defendant did not accept the additur, the trial court’s decision would be reversed and the case remanded for a new trial on damages only. 243 Kan. at 20.
The Rood court held that “[a]n additur may be allowed on the same basis as a remittitur, that is, by allowing the party affected (the defendant in case of additur) to accept a verdict for the added amount in lieu of a new trial.” 243 Kan. 14, Syl. ¶ 1. The court relied on various authority to support its holding. Kansas appellate courts have the power to “correct, modify, vacate or reverse any act, order or judgment of a district court ... to assure that any such act, order or judgment is just, legal and free of abuse.” K.S.A. 1991 Supp. 60-2101(a) and (b).
This power to correct led the court to conclude that appellate courts may allow additur with the defendant’s consent if necessary to correct a judgment. Rood, 243 Kan. at 19. In addition, the court relied on two older Kansas cases suggesting that using additur in certain cases is within the power of the court and does not offend basic principles of justice. According to the court, an error affecting the main issue of the case should be corrected if at all possible without disturbing the decision of the main issue. 243 Kan. at 19 (reviewing Kretner v. Kremer, 76 Kan. 134, 90 Pac. 998 [1907]). The court also reviewed general principles of remittitur and additur, noting that if an error at the trial court level can be corrected without the time and expense of a new trial, it should be done. 243 Kan. at 20. The court concluded that additur was appropriate in that case and if the defendant did not consent, a new trial would be ordered. 243 Kan. at 20.
Plaintiff argues that while Rood appears to grant a trial court the authority to increase an inadequate verdict, the decision actually is more limited. In Rood, a medical bill was improperly kept out of evidence by the trial court allowing the appellate court to accurately determine the amount of damages to add to the jury’s verdict. In our case, such a determination is not so certain.
Plaintiff’s position does have some support from Rood itself. The court’s syllabus, upon which the trial court relied, states that “[a]n additur may be allowed on the same basis as a remittitur.” 243 Kan. 14, Syl. ¶ 1. However, in the case itself, the court does not use such direct language. After stating the general Kansas rule on remittitur, the court stated that “[w]e see no reason why the same rule should not be applied under the peculiar facts of this case.” 243 Kan. at 19. Earlier in its discussion, the court cited authority holding that errors not affecting the main issue should be corrected, if possible, without disturbing the decision of the main issue. 243 Kan. at 19-20. The court could have considered the mistake in Rood (medical bill improperly not admitted into evidence) as a minor error not affecting the main issue of liability and only affecting a minor part of the total damages. In our case, however, liability already was determined in an earlier jury trial and the only issue was damages. The trial court’s additur affected two out of the three categories of damages awarded by the jury and that certainly affects the main issue at the second trial.
Unfortunately, Rood is the only Kansas case which specifically addresses the use of additur. However, the Kansas Supreme Court did indirectly indicate its approval of additur in Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 789 P.2d 541 (1990). In Samsel, the court reviewed the Kansas statute limiting the recovery of noneconomic damages in personal injury actions. The Court said a trial court may refuse to accept a jury’s damage findings in a personal injury case if the verdict is so low or so high, in light of the evidence, as to shock the conscience of the court. When that occurs, the court may either offer the affected party the opportunity to accept a verdict more in line with the evidence or, if the party refuses, order a new trial. 246 Kan. at 359. By the use of this language, the court implies that additur is allowed on the same basis as remittitur in personal injury actions. Reading Samsel and Rood together, additur would be available in this personal injury action in which the jury verdict was found by the trial court to be inadequately low.
Plaintiff next argues that if additur is used, she must consent because it affects her right to a new trial. It is clear from Rood, Samsel, and general principles of remittitur and additur that only the affected party, as defined, must consent. Thus, in additur, generally only the defendant must consent. Plaintiff has not been denied a jury trial. In the instant case she has had two. The additur merely adds to that which she received. Absent a showing that the verdict is totally inadequate due to passion and prejudice, that is all she is entitled to.
We turn now to the constitutional issue. Plaintiff claims her constitutional right to a jury trial is violated when additur is allowed without her consent. Plaintiff’s argument reaches the heart of the debate about additur. Some courts believe it violates plaintiffs’ rights to a jury trial to have their damages determined by a judge and some courts do not. Remittitur does not raise this issue because a jury already has determined the amount of plaintiff”s damages, and the damages awarded are excessive. Decreasing damages with the plaintiff’s consent does not harm the defendant, and the plaintiff waives the right to another jury trial. With additur, on the other hand, the court is determining the plaintiff”s damages after a finding that the jury’s verdict is insufficient. Therefore, some courts feel that additur infringes on a plaintiff’s right to a jury trial.
In 1935, the United States Supreme Court, in a case with remarkably similar facts, held that additur is not allowed in federal district courts. Dimick v. Schiedt, 293 U.S. 474, 79 L. Ed. 603, 55 S. Ct. 296 (1935). In Dimick, plaintiff sued in federal district court to recover damages for a personal injury resulting from an automobile collision. After the jury returned the verdict, plaintiff moved for a new trial, claiming that the damages were inadequate and the verdict was contrary to the evidence. The trial court instead gave the defendant the option of accepting an additur or submitting to a new trial, and plaintiff was not given the opportunity to consent. The defendant accepted the additur, plaintifFs new trial motion was denied, and plaintiff appealed. The Court of Appeals held for the plaintiff, stating that the trial court’s order violated the Seventh Amendment’s guarantee of a trial by jury, and the Supreme Court affirmed.
The Seventh Amendment to the United States Constitution states: “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.” U.S. Const, amend 7. The Seventh Amendment is heavily relied upon by the court in Dimick.
The Court first looked to the common law to determine whether additur was allowed at the tirtie the Constitution was adopted. It found the practice allowed the decrease of excessive jury awards but “forbade the court to increase the amount of damages awarded by a jury.” 293 U.S. at 482. The court recognized the lower federal courts had consistently applied remittitur in cases with excessive damage jury awards for over 100 years. 293 U.S. at 482-83. However, the court said, “[T]he power to conditionally increase the verdict of a jury does not follow as a necessary corollary from the power to conditionally decrease it” because “ ‘no jury has ever passed on the increased amount, and the practice has no precedent according to the rules of the common law.’ ” 293 U.S. at 485. Therefore, the court found no common-law basis for additur and held that the Seventh Amendment required such a basis before an individual may be deprived of his right to a jury trial. 293 U.S. at 476-77.
Next, the court looked to the traditional role of juries in our system of justice and how remittitur and additur affects that role. Juries, and their position as factfinding bodies, have such an important place in our system and history that any attempt to curtail their function should be examined with the utmost care. When a court orders a remittitur, the jury already has reached a verdict. When a court lowers excessive damages, what remains is technically what has been found by the jury but with only the excess taken off. 293 U.S. at 486. Adding to a jury’s verdict is awarding something that the jury has not agreed to. It usurps the jury’s traditional power to determine facts. 293 U.S. at 486. To allow a court to increase damages only with the defendant’s assent “is obviously to compel the plaintiff to forego his constitutional right to the verdict of the jury and accept ‘an assessment partly made by a jury which has acted improperly, and partly by a tribunal which has no power to assess.’ ” 293 U.S. at 486t87.
The Court held in Dimick that a federal district court does not have the power, under the Seventh Amendment right to a jury trial, to increase an inadequate jury verdict with only the defendant’s consent. Instead, the remedy for an inadequate verdict without mutual agreement on additur is a new trial. 293 U.S. at 476. The Dimick holding is still good law today. Federal courts are not allowed to use additur as a remedy for an inadequate jury verdict. See Estes v. Southern Pac. Transp. Co., 598 F.2d 1195, 1199 (10th Cir. 1979); 11 Wright & Miller, § 2816, 107.
However, the Seventh Amendment does not apply to states through the Fourteenth Amendment. Fay v. New York, 332 U.S. 261, 91 L. Ed. 2043, 67 S. Ct. 1613, reh. denied 332 U.S. 784 (1947); Walker v. Sauvinet, 92 U.S. 90, 23 L. Ed. 678 (1875); Edwards v. Elliott, 88 U.S. 532, 22 L. Ed. 487 (1874); First Nat’l Bank of Olathe v. Clark, 226 Kan. 619, 622, 602 P.2d 1299 (1979). The next step, therefore, is to examine whether the Kansas constitutional provision on the right to a jury trial was violated by the additur.
The Kansas Supreme Court specifically addressed the Kansas constitutional right to a jury trial in Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, taking much the same analytical approach as the United States Supreme Court in Dimick. The Kansas Constitution states that “[t]he right of trial by jury shall be inviolate.” Kan. Const. Bill of Rights, § 5. To interpret section 5, the court looked to the common law which became incorporated into the constitution at the time the state constitution was adopted. Samsel, 246 Kan. at 349. The court concluded that the “state constitution and the Kansas common law recognize that the right to a jury trial includes the right to have the jury determine damages.” 246 Kan. at 351. See Kansas Malpractice Victims Coalition v. Bell, 243 Kan. 333, 342, 757 P.2d 251 (1988).
However, the court also recognized that this is not an unlimited right. For example, the legislature may modify those rights under certain circumstances as long as due process requirements are met and the change is reasonably necessary to promote the public welfare. Samsel, 246 Kan. at 358. In addition, jury verdicts always have been subject to the concurrence of the trial judge at common law. The trial or appellate courts have long been áble to grant a remittitur or a new trial without violating the individual’s federal constitutional right to a jury trial. In a personal injury case, a court may refuse to accept a jury’s findings of damages if the amount shocks the conscience of the court. 246 Kan. at 359. Also, the legislature has expressly provided statutory authority for the courts to order a new trial in certain circumstances. K.S.A. 60-259. The right to a jury trial has always had some limits placed upon it, even at common law.
In summary, the court’s holdings in Samsel, 246 Kan. at 359, that a constitutional right to have a jury determine damages is limited and the constitution is not violated by remittitur or ordering a new trial, and in Rood, 243 Kan. 14, Syl. ¶ 1, that additur is to be allowed on the same basis, as remittitur, leads to the conclusion that additur also is constitutional pursuant to the Kansas Constitution and does not violate an individual’s right to have damages determined by a jury.
Was the trial court’s additur appropriate under the facts of this case?
In Samsel, 246 Kan. at 359, the court described a procedure that may be used. The standard for granting an additur or remittitur is whether the jury award is so insufficient (additur) or excessive (remittitur) as to shock the conscience of the court. Folks v. Kansas Power & Light Co., 243 Kan. 57, 77, 755 P.2d 1319 (1988); Rood, 243 Kan. at 19. In cases where additur is considered, the court first refuses to accept the verdict; the court offers the affected party, the defendant, the opportunity to accept a verdict more in line with the evidence; and, if that party refuses, the court orders a new trial. Samsel, 246 Kan. at 359. While Kansas courts have ruled that the proper remedy for an inade quate jury verdict is usually a new trial, Rood and Samsel modify that remedy and allow additur to be used where appropriate. See Levy v. Jabara, 193 Kan. 595, 396 P.2d 339 (1964); Henderson v. Kansas Power & Light Co., 188 Kan. 283, 362 P.2d 60 (1961).
The trial court in our case followed this procedure. The court found the jury’s verdict was inadequate. The court then offered the defendant the opportunity to accept an additur, which the defendant did. Because defendant accepted the additur, the court was not required to order a new trial. The court followed the proper procedure.
To support its decision that the verdict was inadequate, the court relied on oral testimony at the trial arid exhibits. The court found the plaintiff suffered noneconomic losses of $518.20, the same amount the jury found. The court also found plaintiff’s medical expenses to be $1,278.70, which the court said it believed were the medical bills of Dr. Burney and Dr. Lungsford., The court expressed uncertainty as to the exact amount of the medical bills of these two doctors. In the entry of judgment, the court awarded $1,309.70 hi medical expenses without explaining the increase; The court also found that plaintiff lost $6,828.64 in wages from the date of the accident until Dr. Lungsford released the plaintiff to rétum to work on May 30, 1985. ,
Much evidence about medical expenses and lost wages was presented at trial. Unfortunately, the exhibits referred to in testimony were hot included in the record on appeal. For example, plaintiff’s exhibit 1, a notebook of medical and employment records, was admitted by stipulation but is not part of the record on appeal. “It is the duty of an appellant to bring up a complete record of all matters upon which review is sought.” Hesston Corp. v. Kansas Employment Security Bd. of Review, 235 Kan. 716, 724, 684 P.2d 388 (1984). See First Nat’l Bank & Trust Co. v. Lygrisse, 231 Kan. 595, 602, 647 P.2d 1268 (1982). “[T]he appellant has the burden of furnishing a record which affirmatively shows that prejudicial error occurred in the trial court. In the absence of such a record, we presume that the action of the trial court was proper.” Hesston, 235 Kan. at 724 (citing Jackson v. City of Kansas City, 235 Kan. 278, 307, 680 P.2d 877 [1984]; State v. Bright, 229 Kan. 185, 623 P.2d 917 [1981]).
Some evidence, although not detailed, found in the record supports the court’s increase of the jury award on medical expenses. Dr. Marsh, defendant’s witness, testified that the treatments and care given to the plaintiff by Dr. Burney and Dr. Lungsford were reasonable through the third or fourth month after the accident. When the trial court increased the medical expenses award, the court stated the increase was to cover the bills of Dr. Burney and Dr. Lungsford. Even though nothing in the record indicates the exact amount of these expenses, the trial court had that information and we can only assume that the amount the trial court granted was the amount of those expenses. Therefore, competent evidence supports the trial court’s medical expenses additur.
More detailed evidence is found to support the court’s increase in the jury’s lost wages award. The plaintiff testified that from February 27, 1985, to May 30, 1985, she lost 536 hours of work at $12.74 an hour. The total lost wages for that time period was $6,828.64, the amount of lost wages the court found. Again, competent evidence supports the trial court’s lost wages additur.
In short, the court found the jury verdict not to be totally unacceptable, just somewhat inadequate. A minor revision, not a third trial, was called for.
Competent evidence in the record on appeal supports the trial court’s additur. Therefore, the court’s actions were reasonable and were not an abuse of discretion.
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Rees, J.:
This is an appeal by petitioner Barbara Helmick from the district court judgment affirming a Kansas Employment Security Board of Review (ESB) decision denying unemployment compensation benefits to Helmick. The outcome of the referee’s determination, ESB’s determination, and the district court judgment was, in each instance, that Helmick is disqualified for benefits. The case comes before us for appellate review of the district court’s decision made upon its judicial review of the ESB determination. We affirm.
The Act for Judicial Review and Civil Enforcement of Agency Actions (the Act), K.S.A. 77-601 et seq., which creates only procedural rights and imposes only procedural duties additional to those created and imposed by other statutes, applies here because of its enactment effective July 1, 1984, (L. 1984, ch. 338) and because ESB’s denial of benefits was a non-exempt agency action. See K.S.A. 77-603. The district court judgment was entered upon that court’s judicial review of ESB’s action.
Helmick first contends that her conduct was not so substantially adverse to her employer as to satisfy the statutory definition of “misconduct,” which would disqualify her from unemployment benefits.
Before the district court, it was Helmick’s burden to prove the invalidity of ESB’s action. See K.S.A. 77-621(a)(l). Whether ESB’s action was valid is to be tested in accordance with the standards of judicial review provided in K.S.A. 77-621. K.S.A. 77-621(c) provides:
“(c) The [district] court shall grant relief only if it determines any one or more of the following:
“(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole . . . .”
K.S.A. 1990 Supp. 44-706 directs:
“An individual shall be disqualified for benefits:
“(b) If the individual has been discharged for misconduct connected with the individual’s work ....
“(1) For the purposes of this subsection (b), ‘misconduct’ is defined as a violation of a duty or obligation reasonably owed the employer as a condition of employment. In order to sustain a finding that, such a duty or obligation has been violated, the facts must show: (A) Willful and intentional action which is substantially adverse to the employer’s interest, or (B) carelessness or negligence of such degree or recurrence as to show wrongful intent or evil design. ...
“(2) An individual shall not be disqualified under this subsection (b) if the individual is discharged under the following circumstances:
“(B) the individual was making a good-faith effort to do the assigned work but was discharged due to: . . . (iii) isolated instances of ordinary negligence or inadvertence . . . .” (Emphasis added.)
Within the text of the referee’s now pertinent written decision, mailed May 21, 1991, this is stated:
“[T]he majority of the evidence presented by the employer indicates that the claimant was acting in a manner that could be considered to be negligent or inadvertent or further that she made good faith errors in judgment or discretion. Those, in and of themselves, do not constitute misconduct. However, the incident, whereby the claimant refused to report to the principal’s office, is more than a good faith error in judgment. Rather, it is an intentional and willful act of defiance or in other words, insubordination. Insubordination is defined as a refusal to obey directions. This is specifically what happened in this case. The employer has a right to expect its employees to perform various aspects of their employment as instructed. The claimant was instructed by her superiors to report to [the principal’s] office and her refusal to do so was a continuation of her refusals to obey directions. Insubordination of this nature is clearly adverse to the employer’s business interest and, therefore, these willful and intentional acts constitute misconduct. The examiner’s decision is correct and should be affirmed.
“. . . The claimant is disqualified for benefits . . . because the claimant was discharged for misconduct connected with the work.”
The following decision of ESB, mailed June 3, 1991, recites that “[t]he Board, after reviewing all the evidence and being fully advised in the premises, adopts the findings of fact and decision of the Referee rendered in this matter as though fully incorporated herein, and finds that the decision of the Referee should be affirmed.”
On October 11, 1991, the district court affirmed the ESB decision. As reported by its written decision, the court found and held:
“[T]he claimant’s failure to report to the superintendent’s office in order to discuss complaints regarding her job performance was a violation of a duty that was reasonably owed to her employer as a condition of her employment. Her refusal to report was also a willful or intentional action that was substantially adverse to her employer’s business interests because it is absolutely essential for an employee to follow the reasonable instructions of her employer in order to maintain an efficient business operation.”
Thus, as this case comes before us, Helmick has been disqualified for benefits upon holdings that she was discharged for misconduct connected with her work, with the misconduct having been action that was in violation of a duty or obligation reasonably owed to her employer, Unified School District No. 349, as a condition of her employment and upon a factual showing that her conduct was willful and intentional action substantially adverse to her employer s interest.
By the language of K.S.A. 1990 Supp. 44-706(b), multiple occurrences of misconduct, as statutorily defined, are not required to disqualify a claimant for receipt of unemployment compensation benefits. Nothing in the employment security law, K.S.A. 44-701 et seq., indicates that more than one act of misconduct is necessary to disqualify a claimant; a single instance of misconduct is sufficient to disqualify a claimant where the individual has been discharged for misconduct.
We are satisfied and conclude that, when measured against the yardstick of K.S.A. 1990 Supp. 44-706, (1) insubordination may be found to be misconduct as defined by that statute, and (2) only a single instance of insubordination falling within the statutory definition of misconduct is sufficient to disqualify a claimant for unemployment compensation benefits. See Fritsche Unempl. Compensation Case, 196 Pa. Super. 574, 575, 176 A.2d 186 (1961).
Helmick next contends she cannot be disqualified for employment benefits because her conduct met the statutory exception for “isolated instances.”
When read in context, the K.S.A. 1990 Supp. 44-706(b)(2)(B)(iii) isolated instances exception from benefits disqualification applies to cases where the discharge was due to negligence or inadvertence. As shown by the evidence and as found and determined by the referee, ESB, and the district court, Helmick was not discharged due to negligence or inadvertence. Unified School District No. 349 discharged her for misconduct. K.S.A. 1990 Supp. 44-706(b)(2)(B)(iii) does not operate to require multiple instances of misconduct to disqualify.
The nature and occurrence of the material events providing the background for this case are not substantially questioned. They will be roughly summarized.
Helmick was hired as a custodian by the Stafford County School District on June 1, 1986. Her duties included cleaning at Central Elementary School, the intermediate school, and the high school.
In the spring of 1989, Superintendent of Schools Carl Combs, Helmick’s supervisor, happened to go to the basement of Central School and caught her smoking. Helmick was told of the statute prohibiting smoking in school buildings and she promised to comply.
On September 20, 1990, Helmick was told by her immediate supervisor that she was to clean the stairs of the high school during the 90 minutes she was assigned to spend at the high school. Helmick wanted to talk to Combs because she had not been informed of the new assignment by him. She became upset and cried while in Combs’ office. Helmick told Combs she did not have time to spend 90 minutes at the high school; she complained she did not have time to clean the stairs every day during her 90 minutes at the high school. According to Helmick, Combs cussed and screamed at her for one hour.
After the meeting, Helmick returned to her work at Central. Later that day, Combs was told that Helmick was vacuuming immediately outside or near classrooms while testing was being conducted inside. She told the school principal that Combs told her to do so. Combs sent word to Helmick to see him again in his office. The person who gave Combs’ instruction to Helmick was told by Helmick that she was not going back because “all he did was cuss and scream at me and I don’t have nothing else to say.”
Combs went to look for Helmick in Central School. He found an ashtray and two packages of cigarettes in the basement. When confronted by Combs, Helmick admitted that she had smoked in the building, but not on that day. Combs asked her to come to his office to talk and her response was, “No, I don’t have anything to say to you.” Combs told her, “You understand that that is insubordination?” and Helmick replied, “What does that mean? That I’m fired?” Combs stated, “No, not at this time.”
On September 21, 1990, Combs handed Helmick a written notice of termination of her employment. The notice listed three reasons for termination: (1) failure to follow her assignment to work in the high school for 90 minutes per day; (2) failure to report to Combs’ office on September 20, 1990; and (3) smoking in the Central School building after Combs’ directive not to do so in the spring of 1989.
On appeal, Helmick has not established to our satisfaction that reversible error has occurred. While there may be differing results reported in foreign decisions discussing insubordination as misconduct, we find persuasive the statement in Rowe v. Hansen, 41 Cal. App. 3d 512, 523, 116 Cal. Rptr. 16 (1974), that “[w]hen the authority of those in whom the employer has confided responsibility for the day-to-day operation of the business is flouted, the interests of the employer suffer.” An employee’s intentional flouting of the authority of those placed in charge of an employer business or governmental entity necessarily injures the interests of the employer by undermining the position of those responsible for the exercise of the authority delegated.
In sum, we find that in this case the findings and decisions of the referee, ESB, and the district court are supported by facts shown by substantial evidence and findings appropriately made hereon. All requisite findings for the results presented for our review have been made.
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Vickers, J.:
Plaintiffs Lewis Joseph Scully and Judith K. Scully appeal the trial court’s granting of the motion of defendants Cleve Buford Overall, Judy A.C. Overall, and J.C.B. Resources, Inc., for judgment on the pleadings, holding that the Kansas mineral interest lapse statutes, K.S.A. 55-1601 et seq., entitle a mineral owner, who does not take any affirmative steps to maintain a mineral interest for over 20 years, to preserve the mineral interst by filing a statement of claim within 60 days after the surface owner files a notice of lapse. We affirm.
On April 26, 1961, plaintiffs Lewis and Judith Scully purchased real estate located in Anderson County, Kansas, from defendant Cleve Buford Overall. The contract excepted “the oil and gas in place which is reserved by the Vendor.”
On August 1, 1991, the Scullys published a notice of lapse of mineral interest in The Anderson Countian, a local newspaper of general circulation in Anderson County.
On August 8, 1991, the Scullys filed a notice of lapse of mineral interest, claiming that no minerals from the property were used for 20 years and that the ownership of any mineral should revert to the Scullys, the current surface owners.
On August 12, 1991, the Overalls received a copy of the notice by registered mail from the Scullys regarding lapse of the mineral interest. On August 14, 1991, the Overalls filed a statement of claim to mineral interest in the office of the Register of Deeds of Anderson County.
On December 16, 1991, the Scullys filed a petition against the Overalls and J.C.B. to quiet title to real estate.
On January 9, 1992, the Overalls and J.C.B. answered, generally denying the allegations. The Overalls and J.C.B. jointly filed a motion for judgment on the pleadings on January 27, 1992.
The trial court granted the Overalls’ and J.C.B.’s motion, holding as a matter of law that the Overalls’ mineral interests were not extinguished or vested in the Scullys.
This appeal was taken from the trial court’s granting of defendants’ motion for judgment on the pleadings. K.S.A. 1991 Supp. 60-212(c) provides:
“After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in K.S.A. 60-256 and amendments thereto, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion.”
No evidence outside the pleadings was presented to the trial court in consideration of this motion. Although there were “additional undisputed facts” alleged in the Scullys’ response and objection to the joint motion for judgment on the pleadings, these are the same facts alleged in their petition to quiet title.
A motion for judgment on the pleadings is based upon the ground that the moving party is entitled to a judgment on the face of the pleadings themselves. In considering a defendant’s motion for judgment on the pleadings, the question is whether, upon the admitted facts, the plaintiff has stated a cause of action. Tabor v. Lederer, 205 Kan. 746, 748, 472 P.2d 209 (1970). The Scullys are mistaken in treating the trial court’s decision as the granting of summary judgment.
The primary issue before us is whether the Overalls’ mineral interests lapsed and were extinguished and became vested in the surface owners, the Scullys, under the Kansas mineral interests lapse statutes, K.S.A. 55-1601 et seq. This is the first case to interpret these statutes since their enactment in 1983.
The pertinent statutes are set out in full.
K.S.A. 55-1601:
“As used in this act, ‘mineral interest’ means an interest created by an instrument transferring, by grant, assignment, reservation or otherwise, an interest of any kind in coal, oil, gas or other minerals.”
K.S.A. 55-1602:
“An interest in coal, oil, gas or other minerals, if unused for a period of 20 years, shall lapse, unless a statement of claim is filed in accordance with K.S.A. 55-1604, and the ownership shall revert to the current surface owner.”
K.S.A. 55-1603:
“(a) A mineral interest shall be considered to be used when:
(1) There are any minerals produced under the interest;
(2) operations are being conducted on the interest for injection, withdrawal, storage or disposal of water, gas or other luid substances;
(3) rentals or royalties are being paid by the owner of the interest for the purpose of delaying or enjoying the use or exercise of the mineral rights;
(4) the use or exercise of the mineral rights is being carried out on a tract with which the mineral interest may be unitized or pooled for production purposes;
(5) in the case of coal or other solid minerals, there is production from a common vein or seam by the owners of the mineral interests; or
(6) taxes are paid on the mineral interest by its owner.
“(b) Any use pursuant to or authorized by the instrument creating the mineral interest shall be effective to continue in force all rights granted by the instrument.”
K.S.A. 55-1604:
“(a) A statement of claim may be filed by the owner of a mineral interest prior to the end of the twenty-year period specified by K.S.A. 55-1602 or within three years after the effective date of this act, whichever is later. The statement shall contain the name and address of the owner of the mineral interest and a description of the land on or under which the mineral interest is located. The statement of claim shall be filed in the office of the register of deeds of the county in which the land is located. Upon the filing of the statement of claim within the time provided, if shall be considered that the mineral interest was being used on the date the statement of claim was filed.
“(b) Failure to file a statement of claim within the time prescribed by subsection (a) shall not cause a mineral interest to be extinguished if the owner of the mineral interest filed the statement of claim within 60 days after (1) publication of notice as prescribed by K.S.A. 55-1605, if such notice is published or (2) within 60 days after receiving actual*knowledge that the mineral interest had lapsed, if such notice is not published.”
The facts are undisputed in this case that the Overalls’ mineral interest was unused for a period of 20 years as set forth in K.S.A. 55-1602 and 55-1603, and that no claim was filed by the Overalls prior to the 20-year period specified in K.S.A. 55-1602 or within three years after the effective date of the Act, whichever was later, as set forth in K.S.A. 55-1604.
The facts are further undisputed that the Scullys did publish in The Anderson Countian a “notice of lapse” pursuant to K.S.A. 55-1605 and that the Overalls filed a statement of claim within 60 days after publication of said notice pursuant to K.S.A. 55-1604(b)(1).
The Scullys’ argument on appeal is that when a mineral owner files a statement of claim after publication of the lapse notice, this statement of claim “must be coupled with proof that the mineral interest was in fact ‘used’ during the 20-year period in order to preserve the mineral interest owner’s rights.”
The Scullys further argue that once the mineral interest has lapsed after the 20-year period of nonuse, the mineral owner has no ground to contest such lapse. The Scullys assert that the provision in K.S.A. 55-1604(b) is merely a notice requirement but does not provide any separate right to extend the mineral interest if the prior mineral owner cannot prove that the minerals were “used,” as provided in K.S.A. 55-1603, or that the prior mineral owner did file with the register of deeds a statement of claim within 20 years of the last use of the minerals. The Scullys’ interpretation of the statute is distorted.
According to the requirements in K.S.A. 5N1604(b), the mineral interest shall not be extinguished, even after the lapse of 20 years of nonuse, if the owner files a statement of claim. The statute does not require the mineral interest owner to provide proof of use at the time of the filing of the statement of claim. “Where a statute is clear and unambiguous, the court must give effect to the legislative intent therein expressed rather than make a determination of what the law should or should not be.” Capital Electric Line Builders, Inc. v. Lennen, 232 Kan. 379, 383, 654 P.2d 464 (1982).
We agree with the analysis of the statute as stated by Associate Professor David E. Pierce, a professor of Oil and Gas law at Washburn University School of Law:
“Although the mineral interest will ‘lapse’ if unused for twenty years, and if a statement of claim is not filed on or before 1 July 1986, the interest will not be ‘extinguished’ until the surface owner gives notice of the lapse and the mineral interest owner fails to respond as required by K.S.A. 55-1605.” Pierce-, July 1 is Deadline for Filing Claims to Preserve “Unused Mineral Interests,” 25 Circuit Rider 6 (Summer 1986).
The Scullys make reference to a United States Supreme Court case, Texaco, Inc. v. Short, 454 U.S. 516, 70 L. Ed. 2d 738, 102 S. Ct. 781 (1982), but it is difficult to see what exactly Texaco offers to support their position. Texaco held the Indiana Dormant Mineral Interests Act constitutional. The Indiana act was used as a model for the Kansas statutes, K.S.A. 55-1601 et seq. However, there is a difference. The Indiana act does not require the surface owners to give notice to the mineral interest owners to allow them to avert the lapse of their interests. .On the other hand, K.S.A. 55-1604(b) provides the chance to do exactly that.
The Scullys insist that only when there was some “use” of the mineral interest during the 20-year period should the mineral interest owner be allowed to dispute the lapsing of the mineral interest to the surface owner. They claim that this interpretation is the “most logical interpretation to achieve the intent of the legislature and to best serve the public policy behind the enactment of the Mineral Lapse Act.” If the trial court’s position is adopted, the Scullys argue, the whole purpose and intent of the statute is defeated. We are not convinced. Again, we agree with the analysis of Professor Pierce:
“The Kansas Mineral Lapse Act equitably balances the interests of the surface owner and mineral owner. The Kansas Act requires the surface owner to make reasonable efforts to identify and contact the owners of the lapsed interest. If the mineral interest owner responds, the interest is no longer forgotten, the name and address of the mineral interest owner is identified, the purposes of the Act are served. If the mineral interest owner fails to respond, the surface owner can perfect title to the interest in a subsequent quiet title action. The interest then becomes marketable because it is vested in a new, identified, owner.” Pierce, 25 Circuit Rider at 9.
The Scullys further argue that the trial court erroneously prevented them from completing pretrial discovery. The Scullys claim that they wanted to show to the trial court that Overall “knew that his mineral interest had lapsed and knew that to retain his interest, he would have had to file a statement of claim within 3 years of the enactment of the Mineral Lapse Act or file a statement of claim within 60 days of the lapse of his mineral interest, neither of which was done.” This argument is flawed.
The Scullys did publish their notice in the newspaper according to the requirements in K.S.A. 55-1605. Therefore, the “actual knowledge” provision in K.S.A. 55-1604(b)(2) does not apply because there was publication of notice. Furthermore, the Overalls received a copy of the notice by registered mail from the Scullys regarding the lapse on August 12, 1991. The filing of the statement of claim by the Overalls on August 14, 1991, was timely (within 60 days) and prevented extinguishment of the mineral interest. There is no merit in the Scullys’ argument for continuing pretrial discovery. The trial court had all the facts it needed from the pleadings on which it made its decision as a matter of law.
We hold that the mineral interest was not extinguished or vested in the surface owners after 20 years of nonuse, when the mineral interest owners filed a statement of claim within 60 days from the publication of notice under K.S.A. 55-1604(b)(l).
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|
Pierron, J.:
This is an appeal by coupon bondholders of industrial revenue bonds issued by the City of Chanute. The project defaulted and the proceeds from the property which secured the bonds are not sufficient to pay off all the bonds. The City and the fiscal agent, Bank of Commerce, filed a declaratory judgment action asking the court for guidance in distributing the proceeds among the bondholders. The district court ruled that proceeds should be distributed pro rata among coupon bondholders and registered bondholders. The coupon bondholders denoted as “first lien” have appealed that decision.
The City in 1983 issued $900,000 of industrial revenue bonds for the purchase of the land, buildings, and equipment of Neosho Paper Products, a corporation located in Chanute. The project was financed by the issuance of bonds and was to be repaid by the new tenant of the facility, New Era Packaging, Inc., also known as New Neosho Paper Products. Unfortunately, New Neosho Paper Products defaulted in 1986. Some of the bonds had been paid in full.
The facility has grown to be increasingly worthless as the years have passed and economic conditions in Chanute have taken their toll. Apparently, the taxes owed on the facility are worth more than the facility itself. Still outstanding are $785,000 worth of bonds, of which $605,000 are coupon bonds and $180,000 are registered bonds. Also still due is interest on all of those bonds.
The registered bonds were issued to the owners of the old Neosho Paper Products in partial satisfaction of the sale price. No cash was paid by the registered bondholders for their bonds. The ordinance issued by the City describing the bond issuance makes a number of references to the bonds and to the details of their issuance. At issue are the ordinance’s references to the coupon bonds as “first lien” bonds and the registered bonds as “junior lien” bonds.
Because the language of the ordinance and the lease agreement treats all bondholders on an equal footing regarding voting rights, compromise of any indebtedness, sale of the facility, and reduction of principal and interest due, the appellees contend that the references to the registered bonds as “junior lien” bonds does not indicate to the court what the priority payment should have been. The district court agreed with the appellees and found that payment should be scheduled on a pro rata basis.
The issue before us is whether the district court erred in determining that the bond ordinance made no provisions for priority of payment and, if so, whether the district court’s decision that the proceeds should be distributed pro rata among the coupon bondholders and the registered bondholders should be reversed.
The standard of review on this question is that “[t]his court’s review of conclusions of law is unlimited.” Hutchinson Nat'l Bank & Tr. Co. v. Brown, 12 Kan. App. 2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988). The bonds at issue here were issued under the provisions of K.S.A. 12-1740 et seq. Unfortunately, the statute does not provide any guidance as to priority of payment for different classes of bonds if there is a default and the property securing the bonds is not worth the principal and interest owned on the outstanding bonds.
The bonds at issue in this case are revenue bonds, payable from a specific source of revenue, rather than bonds of indebtedness. “The latter types of bonds are issued by States and governmental units, and are payable from and secured by a pledge of the issuer s taxing power. Generally, revenue bonds are payable from the income of the projects that are built using the proceeds of the bond issues.” 2416 Corp. v. Board of Trustees, 209 Ill. App. 3d 504, 508, 568 N.E.2d 276 (1991).
The bonds at issue were payable from the lease payments Néw Neosho Paper Products contracted to make. The bonds were secured by the facility being leased to the tenant. Once all bonds had been paid in full, the tenant would have had the option to purchase the facility from the City for a nominal fee.
Public bonds constitute contracts. 64 Am. Jur. 2d, Public Securities and Obligations § 27. When construing contracts,
“[i]t is not the function of the courts to make contracts but to enforce them. [Citation omitted.] The duty of courts is to sustain the legality of contracts when fairly entered into, and if reasonably possible to do so, rather than seek loopholes and technical legal grounds for defeating their intended purpose." Fourth Nat’l Bank & Trust Co. v. Mobil Oil Corp., 224 Kan. 347, 353, 582 P.2d 236 (1978).
The contract here is found in the city ordinance published in the Chanute Tribune on June 25, 1983, which described the bonds that were being offered by the City. The appellants correctly point out that the words “the bonds” sometimes refers to all of the bonds — coupon and registered bonds. The appellees miscontrue the use of the words “the bonds” to always include the registered bonds. Sometimes that is true; sometimes it is not. This is really unimportant because when the ordinance wants to include registered bonds in the terms of whatever is being discussed, phrases such as “all bonds then outstanding” are used.
References to registered bonds as junior in lien to the coupon bonds are made in several places in the ordinance and the official statement. On page 3 of the ordinance, in section 3, two references are made to the registered bonds as “junior lien bonds” including the quote, “The registered Bonds maturing June 15, 1994, shall be junior in lien to the coupon Bonds.” On page 7 of the ordinance, a form of the coupon bond is printed and the coupon bond is clearly designated as “first lien” in the caption. On page 12 of the ordinance, the form of the registered bond is printed and the registered bond is clearly designated “junior lien” in the caption. On pages 12-13 of the ordinance it is made clear that the registered bond form shall be identical to the coupon bond form except for certain listed textual changes. One of the changes includes a paragraph that ends with the following sentence: “This Bond is subject to the prior lien of the coupon Bonds issued pursuant to Ordinance No.__”
As mentioned earlier, when the City wants to clearly refer to all bonds, the ordinance uses such words as “then outstanding bonds” or “of the bonds herein authorized at the time then outstanding.” The appellees correctly represent that all bondholders are given equal voting rights concerning changes in the covenants of the City, issuance of additional bonds, amendments to the ordinance, reduction in the aggregate principal amount of the bonds, amendments to the lease, enforcement of the bonds, and acceleration in the event of default (not an exclusive list). Equal voting rights for different classes of stock or bonds does not, however, mean equal priority in terms of payment. Cf. 18 C.J.S., Corporations §§ 148-162.
The appellants and appellees cite only two cases to this court and contend that there are no other cases that are helpful in this jurisdiction or any other. While not doubting the statements of learned counsel, we also have researched the question, and our research has yielded but one other case which is only marginally helpful.
None of the cases cited herein address the exact question that is being presented in this case. They are, therefore, of little assistance, but will be referenced for the points that they do make.
In Petition of First Interstate Bank, 767 P.2d 792 (Colo. App. 1988), the probate court in Colorado was asked to decide whether a refinancing of a nursing home which had defaulted on payments due on the bonds could be approved. The proposed refinancing would generate sufficient funds to pay off the series A bonds but not the series B bonds, but both series would be discharged. The court ruled that the trustee could approve the refinancing under the terms of the bond ordinance.
The series B bonds in Petition of First Interstate Bank were similar to the registered bonds in the instant case because they had been issued to the seller of the nursing home as part of the sale price. In Petition of First Interstate Bank, the bonds were secured by a mortgage on the real property rather than by a lease, as in the instant case. An additional difference is that the trustee of the series A and series B bonds was expressly directed by the trust instrument
“to maximize the return primarily of the Series A, and secondarily, of the Series B, bondholders. This subordinate status was expressly agreed to by the B bondholders. The instrument specifically directs the trustee, when determining an appropriate remedy for default, to consider the interest of the series A, and not the series B, bondholders.” 767 P.2d at 796.
The appellees and the trial court would also distinguish Petition of First Interstate Bank by saying that the ruling therein did not cancel the series B bonds, but left them in the same subordinated position. That, however, is not true. The refinancing which was approved by the court in Petition of First Interstate Bank did require that series A and B bonds were both canceled even though only series A bonds were paid. 767 P.2d at 794, 796.
Despite language in the trust that would prevent the series B bondholders from being further subordinated to any future issuances of series A bonds, prevent additional indebtedness on a parity with that to the A bondholders, change the terms of the payment, or deprive the bondholders of their outstanding liens, the trial court approved, and the Court of Appeals of Colorado further affirmed, the refinancing which fully paid the series A bonds and canceled both the series A and series B bonds. The court said:
“Here, these additional trust provisions apply only to amendments to an ongoing indenture, not to remedies in event of default. This conclusion is supported not only by the language in the sections themselves, which refer to ‘amendments or modifications,’ and the internal contractual inconsistency that would result from extending the sections to apply in event of default, but also by explicit language in the indenture article concerning default remedy be applied ‘to payment of principal and interest on the Parity [A] bonds first and then to Subordinated Series 1983-B Bonds.’ By using this language, the drafters clearly foresaw, and the B bondholders accepted, the risk that there would be insufficient funds to satisfy their liens in event of default.” 767 P.2d at 795-96. (Emphasis added.)
Another case is Whitehill v. Seaway Port Authority of Duluth, 349 N.W.2d 313 (Minn. App. 1984). In Whitehill the court was asked whether earliest maturing bonds should be paid in full for both principal and interest, or if what money remained from the facility financed by the industrial development bonds should be used to pay out pro rata all bondholders based on accrued interest. The court found the situation required that the proceeds of the sale of the facility should be used to make scheduled interest and principal payments as they came due until an insufficiency in the fund existed at the due date. Little of this case is helpful because, as in Petition of First Interstate Bank, the answer depends on the language of the bond resolution issuing the bonds. The court said:
“Read as a whole, the documents indicate that it was the Authority’s interest in the Lease, and not its interest in the real property, which was the bondholders security. Had the Authority and bond purchaser wanted the proceeds from the sale of the facility prorated among all bondholders whether bonds had matured or not, rather than deposited in the Bond Fund, the Resolution could have provided for this alternative. It did not.” 349 N.W.2d at 316. (Emphasis added.)
Pursuant to the fact that the funds were deposited in the bond fund, the court held that the funds should be distributed according to the priority provisions in the relevant section and not prorated.
The only other case found which might be somewhat helpful is State ex rel. Benton County, etc. v. Forsyth, 170 Wash. 71, 15 P.2d 268 (1932). Again, in this case there was' not enough money to pay off all of the bonds issued and the court was asked to decide whether series B of the first issue should be paid before Series A of the second issue of the bonds. Section 13 of the statute that provided for the issuance of such bonds read in part as follows: “The assessment upon real property shall be a lien against the property assessed .... And the lien for the bonds for any issue shall be a preferred lien to that of any subsequent issue.” 170 Wash, at 76. In order to give effect to that statutory language, the court ruled that series B of the first issue and every series of that issue must be paid before series A of the second issue could be paid. 170 Wash, at 79.
The clear principle that can be taken out of these cases is that the courts make every effort to construe the contract between the bondholders and the city as it was intended at the time of its making. While there is a great deal of case law on whether bonds of one issue, but maturing at different dates, should be paid by maturity date or by pro rata payments (in the event of insufficient funds at default), we are unable to find any case law in which a class of bonds is designated as junior in lien to another class of bonds and what effect designating bonds as “junior lien” would have on priority of payment.
Priority of payment and junior lien, however, are clear concepts in the law. “First lien” is defined by Black’s Law Dictionary as “[o]ne which takes priority or precedence over all other charges or encumbrances upon the same piece of property, and which must be satisfied before such other charges are entitled to participate in the proceeds of its sale.” Black’s Law Dictionary 635 (6th ed. 1990). “Junior lien” is defined as a “lien which is subordinate to [a] prior lien.” Black’s Law Dictionary 851 (6th ed. 1990).
The bonds were clearly designated so that the bondholders could see that the coupon bonds were “first lien” and the registered bonds were “junior lien.” Not only was it clearly designated in the caption of the bonds printed on both the bond certificate and on the cover of the bond, it was also clearly printed in the text of the junior lien registered bonds that “[tjhis Bond is subject to the prior lien of the coupon Bonds issued pursuant to Ordinance No.__”
Additionally, the official statement summary also clearly tells prospective purchasers that the junior lien registered bonds are subordinate to the first lien bonds. Additionally, on page 9 of the official statement summary, the City detailed some of the risk factors associated with this offering. They include: (1) The bonds do not constitute indebtedness to the City of Chanute, Kansas; (2) the tenant and its parent are new businesses and the ability to honor the lease agreement will depend on the success of the tenant; (3) the business of the tenant is extremely competitive and any shortage in supply, labor difficulties, etc. can adversely affect its business; and (4) the tenant is a new corporation, has not conducted any business yet, and has no business record on which bondholders could rely. Clearly, the concept of default must have been considered in light of the risks detailed by the City to prospective purchasers.
Provisions for repayment under default if insufficient funds existed for repayment of all bonds are found in the statement that the facility is subject to the prior lien of the coupon bonds. The meaning of prior lien is clear. It must be paid off before the sale proceeds are free to be distributed to liens that are not first liens. Provisions giving equal voting rights to the registered bondholders do not contradict such a provision, do not make it ambiguous, and do not make it void.
The registered bondholders took those bonds knowing they were junior in lien to the coupon bondholders. Knowing they were junior, they took the risk that in the event of default, there might not be sufficient funds to pay off both the coupon bonds and the registered bondholders. In that event, they knew or should have known that they would be paid only after all coupon bondholders were paid in full. Apparently, to make that risk worthwhile, their interest rate was higher than that issued for the coupon bondholders. This is not an ambiguous contract. It does not provide room for the court to interpret it. We must simply apply the terms of the contract to the trust created by the court for distribution of the existing funds to pay off some of the principal on the outstanding bonds.
As to whether among the coupon bonds the holders should be paid in full according to earliest maturing date, or redeemed in inverse order, or pro rata, that issue is not before the court and we do not address it at this time.
This matter is reversed and remanded to the trial court for proceedings consistent with this opinion. | [
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Davis, J.:
The State appeals the dismissal of its petition alleging that Walter E. Day is a habitual violator.
The facts are not in dispute. Each of the three convictions used to support the petition for habitual violator satisfies K.S.A. 8-285(a)(2) and K.S.A. 8-285(a)(3). The problem arises in this case because one of the convictions used in a prior habitual violator adjudication was used in this case to adjudicate defendant a habitual violator. The issue is whether the State may use evidence of a conviction from a previous habitual violator proceeding in another subsequent habitual violator proceeding.
The trial court answered the question in the negative and dismissed the petition based on its conclusion that the State is collaterally estopped from using the same conviction in two consecutive habitual violator proceedings and based on its determination of the legislative intent in K.S.A. 8-285. We reverse and remand for further proceedings.
Collateral Estoppel
The doctrine of collateral estoppel or issue preclusion prevents the relitigation of issues conclusively determined in an earlier action. Issue preclusion may be asserted when a party can show that the issue was determined by a prior judgment on the merits, that the issue was actually determined and necessary to support the judgment, and that the parties are the same or in privity. Jackson Trak Group, Inc. v. Mid States Port Authority, 242 Kan. 683, 690, 751 P.2d 122 (1988).
With respect to each conviction used to support a habitual violator proceeding, the court must determine whether the defendant is the same person named in the abstract of convictions and whether the conviction qualifies in character and time frame to classify the defendant as a habitual violator. The qualifying convictions, however, are in the nature of evidence providing the elements that support the ultimate issue to be decided — whether the defendant is a habitual violator. Defendant maintains the State is barred from using the same evidence in the form of one conviction to support separate claims. Collateral estoppel does not bar the use of evidence from a previous proceeding to support the ultimate issue to be decided in a subsequent legal proceeding.
The doctrine of claim preclusion, however, would bar the State from using the same three convictions to support consecutive habitual violator petitions. The State’s claim in habitual violator cases is that three particular convictions warrant adjudicating the defendant to be a habitual violator. Once a court has determined a defendant’s status as a result of those three particular convic tions, the State may not assert a second identical claim based on those same three convictions.
Here, however, the court is faced with a separate, distinct claim of whether the new mix of convictions, even though one of the convictions previously was used in an earlier habitual violator proceeding, is sufficient in character and time frame to classify the defendant as a habitual violator. This is an altogether different issue not subject to issue preclusion and an altogether different claim not barred by claim preclusion.
Legislative Intent
The language used in K.S.A. 8-285 is clear and unambiguous. A “habitual violator” includes any person who, within the immediately preceding five years, has been convicted three or more times of certain offenses, including driving under the influence and driving while his or her license is revoked. K.S.A. 8-285(a)(2); K.S.A. 8-285(a)(3). The defendant had three such convictions in the five years immediately preceding the State’s present habitual violator petition. The express provisions of the statute do not preclude consideration of an offense that was used to support a prior habitual violator determination.
When a court determines that a person is a habitual violator, the statute requires the court to revoke the person’s driving privilege for three years. K.S.A. 8-286; K.S.A. 8-288. The legislature clearly intended to get dangerous drivers off the road. Indeed, the legislature articulated that intent in K.S.A. 8-284 when it declared the public policy of the state:
“(a) To provide maximum safety for all persons who . . . use the public highways . . .
(b) To deny the privilege of operating motor vehicles ... to persons who . . . have demonstrated their indifference to the safety and welfare of others and their disrespect for the laws of this state . . . and
(c) To discourage repetition of criminal acts . . . and to impose increased and added deprivation of the privilege to operate motor vehicles upon habitual violators.”
We believe the legislature intended to allow the State to use the same conviction to support successive habitual violator petitions.
We reverse and remand for further proceedings consistent with this opinion. | [
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Rulon, J.:
Ronald R. Cline, respondent, appeals the decision of the district court denying his motion to vacate, terminate, or reduce his obligation to pay spousal maintenance to his former wife, Ranae S. Cline, petitioner.
Essentially we must resolve two issues. First, we must decide if the district court erred in ordering the respondent to pay spousal maintenance terminable only upon the death or remarriage of respondent’s former spouse. Second, even if the order of the spousal maintenance is void, should the appeal fail because of: (1) respondent’s acquiescence; (2) the doctrine of res judicata; or (3) the provisions of K.S.A. 1991 Supp. 60-1610(b)(3)?
We reverse and remand with instructions.
The undisputed facts distilled to their essence are as follows: Respondent and petitioner were married April 5, 1969, in Tennessee. Two children were bom during their marriage. In 1987, petitioner filed for divorce in Sedgwick County District Court. Respondent was living in Louisiana when petitioner filed for divorce.
A temporary order was issued giving temporary custody of the children to petitioner and ordering respondent to pay child support in the amount of $240 per month and spousal maintenance of $500 per month. Respondent was served by mail with notice of the divorce action and support order in Louisiana, but he did not file any responsive pleadings.
A hearing on the petition was conducted, but respondent neither appeared nor was represented by counsel. The district court entered a default judgment granting petitioner a divorce from respondent, granted the parties joint custody of their children, and ordered child support and spousal maintenance. The decree specifically provided spousal maintenance as follows:
“7. Respondent shall contribute as and for the support of the petitioner the total sum of $450.00 per month commencing on the 1st day of September, 1987, and a like sum on the 1st day of each month thereafter for twelve (12) months. Upon the expiration of the 12 month period, the respondent shall thereafter contribute as and for the support and maintenance of the petitioner the sum of $500.00 per month until death or remarriage of the petitioner. The Court finds that good cause exists for not having said support payments made to the Court Trustee. Said support shall therefore be paid through the Clerk of the District Court, Support Division and thereafter transmitted to the petitioner.”
There is no evidence that the original divorce decree incorporated any oral or written settlement agreement between the parties. Respondent maintains that he and petitioner had engaged in general discussions prior to entry of the divorce decree concerning what would be a fair division of property, debts, and support. When he received notice of the Journal Entry of Judgment and Decree of Divorce, respondent apparently felt that the decree provisions varied significantly from those terms he had previously discussed with petitioner.
Petitioner and respondent jointly moved for modification of respondent’s child support and spousal maintenance obligations. The district court granted the parties’ motion for modifications increasing child support and reducing spousal maintenance, with the maintenance remaining terminable upon petitioner’s death or remarriage. The other provisions of the previous decree continued unmodified. The court noted the modification order represented a “compromise agreement reached by the parties and constitutes an amended property settlement agreement.”
Later, respondent filed a motion to vacate maintenance or, in the alternative, to terminate or reduce maintenance. Both children had already reached the age of 18 and child support payments had ended. Respondent argued that K.S.A. 1991 Supp. 60-1610(b)(2) expressly forbids an order for spousal maintenance that exceeds 121 months in duration. Specifically, he argued that the court’s order, continuing maintenance until petitioner’s death or remarriage, was thus void and should be set aside.
The district court denied respondent’s motion, holding that K.S.A. 1991 Supp. 60-1610(b)(3) prohibited the court from modifying a settlement agreement; that respondent’s acquiescence in the earlier order estopped him from now challenging the order; and that the doctrine of res judicata prevented consideration of the issues raised.
Spousal Maintenance
Respondent contends that the court’s maintenance orders were void and must be set aside because they were contrary to K.S.A. 1991 Supp. 60-1610(b)(2). K.S.A. 1991 Supp. 60-1610(b)(2) provides:
“(2) Maintenance. The decree may award to either party an allowance for future support denominated as maintenance, in an amount the court finds to be fair, just and equitable under all of the circumstances. The decree may make the future payments modifiable or terminable under circumstances prescribed in the decree. The court may make a modification of maintenance retroactive to a date at least one month after the date that the motion to modify was filed with the court. In any event, the court may not award maintenance for a period of time in excess of 121 months. If the original court decree reserves the power of the court to hear subsequent motions for reinstatement of maintenance and such a motion is filed prior to the expiration of the stated period of time for maintenance payments, the court shall have jurisdiction to hear a motion by the recipient of the maintenance to reinstate the maintenance payments. Upon motion and hearing, the court may reinstate the payments in whole or in part for a period of time, conditioned upon any modifying or terminating circumstances prescribed by the court, but the reinstatement shall be limited to a period of time not exceeding 121 months. The recipient may file subsequent motions for reinstatement of maintenance prior to the expiration of subsequent periods of time for maintenance payments to be made, but no single period of reinstatement ordered by the court may exceed 121 months. Maintenance may be in a lump sum, in periodic payments, on a percentage of earnings or on any other basis. At any time, on a hearing with reasonable notice to the party affected, the court may modify the amounts or other conditions for the payment of any portion of the maintenance originally awarded that has not already become due, but no modification shall be made without the consent of the party liable for the maintenance, if it has the effect of increasing or accelerating the liability for the unpaid maintenance beyond what was prescribed in the original decree.” (Emphasis added.)
Respondent’s motion to vacate cited K.S.A. 60-260(b)(4), which in relevant part provides: “On motion and upon such terms as are just, the court may relieve a party or said party’s legal representative from a final judgment, order, or proceeding for the following reasons: ... (4) the judgment is void.” The statute indicates that such a motion shall be made within a “reasonable time.” K.S.A. 60-260(b). Our courts have interpreted the statute to find that a motion to set aside a void judgment can be made at any time. Barkley v. Toland, 7 Kan. App. 2d 625, 630, 646 P.2d 1124, rev. denied 231 Kan. 799 (1982).
K.S.A. 1991 Supp. 60-1610(b)(2) unambiguously states, “In any event, the court may not award maintenance for a period of time in excess of 121 months.” We must determine if the district court’s orders are void as contrary to this statute. “A judgment is not void merely because it is erroneous or because some irregularity inhered in its rendition. It is void only if the court that rendered it lacked jurisdiction of the subject matter or of the parties or if the court acted in a manner inconsistent with due process.” Producers Equip. Sales, Inc. v. Thomason, 15 Kan. App. 2d 393, Syl. ¶ 2, 808 P.2d 881 (1991). See In re Marriage of Morton, 11 Kan. App. 2d 473, 474, 726 P.2d 297 (1986).
In Morton, the district court ordered the appellant to make the annuity in his military survivor benefit plan payable to the appellee upon his death. Although there had been an. oral settlement agreement, the appellant denied that he had ever agreed to allow the appellee to receive the annuity. A federal statute, 10 U.S.C. § 1450(f)(3) (1982), expressly provided that before a court had the authority to order a military retiree to provide a former spouse with a survivor’s benefit annuity, the retiree must have voluntarily agreed in writing to do so. Because there was no such writing, the court held “the lower court acted outside its authority, or subject matter jurisdiction, by ordering appellant to elect to provide such an annuity to appellee. Therefore, that part of [the] decree ordering [appellant] to provide the SBP an nuity is void and should have been set aside. K.S.A. 60-260(b)(4).” (Emphasis added.) 11 Kan. App. 2d at 477.
Under the facts of this case, the district court acted outside its subject matter jurisdiction by awarding maintenance for a period that could exceed the maximum duration of 121 months imposed by statute. The portion of spousal maintenance that exceeds the statutory limit of 121 months is void as a matter of law. Clearly the district court has wide discretion in adjusting the financial obligations of the parties and ordinarily its judgments will not be disturbed absent a showing of a clear abuse of discretion: In re Marriage of Brown, 247 Kan. 152, 165-66, 795 P.2d 375 (1990). But the district court must comply with the statutes authorizing payment of support and maintenance, and its failure to do so is reversible error.
Is This Appeal Barred?
Petitioner contends, and the district court apparently agreed, that respondent’s K.S.A. 60-260(b)(4) motion should be denied due to his acquiescence in the court’s judgment, due to the doctrine of res judicata, and pursuant to the provisions of K.S.A. 1991 Supp. 60-1610(b)(3) because of that statute’s prohibition against modification of orders that incorporate a separation agreement between the parties. These issues will be separately addressed.
Res Judicata
“ 'The doctrine of res judicata prevents the splitting of a single cause of action or claim into two or more suits; it requires that all the grounds or theories upon which a cause of action or claim is founded be asserted in one action or they will be barred in any subsequent action. [Citation omitted.] This rule is one of public policy. It is to the interest of the state that there be an end to litigation and an end to the hardship on a party being vexed more than once for the same cause. The doctrine of res judicata is, therefore, to be given a liberal application but not applied so rigidly as to defeat the ends of justice. [Citation omitted.]
“ ‘An issue is res judicata when there is a concurrence of four conditions: (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.]’ ” Ellis v. State Farm Mut. Auto. Ins. Co., 249 Kan. 599, 603, 822 P.2d 35 (1991) (quoting In re Estate of Reed, 236 Kan. 514, 519, 693 P.2d 1156 [1985]).
Res judicata is an affirmative defense and must be affirmatively pleaded or it is waived as a defense. K.S.A. 1991 Supp. 60-208(c); Oehme v. Oehme, 10 Kan. App. 2d 73, 77, 691 P.2d 1325 (1984), rev. denied 236 Kan. 876 (1985). We are unable to determine if petitioner raised this defense in her pleadings or if it was raised sua sponte by the district court. This is not crucial, however, because we conclude the district court’s orders were void and created no binding obligation upon the parties. Barkley v. Toland, 7 Kan. App. 2d at 629. In order for a judgment to be given former adjudicative effect, the judgment must be valid. We believe it is unreasonable to suggest that a void judgment must be given res judicata effect, precluding a court from ever setting it aside pursuant to K.S.A. 60-260(b)(4), simply because the issue of its being void was not raised at the time the judgment was entered. This would clearly defeat the ends of justice.
Modification of Agreement
K.S.A. 1991 Supp. 60-1610(b)(3) provides:
“If the parties have entered into a separation agreement which the court finds to be valid, just and equitable, the agreement shall be incorporated in the decree. The provisions of the agreement on all matters settled by it shall be confirmed in the decree except that any provisions for the custody, support or education of the minor children shall be subject to the control of the court in accordance with all other provisions of this article. Matters settled by an agreement incorporated in the decree, other than matters pertaining to the custody, support or education of the minor children, shall not be subject to subsequent modification by the court except: (A) As prescribed by the agreement or (B) as subsequently consented to by the parties.”
Petitioner contends that because the district court’s original order was modified with agreement of both the parties, K.S.A. 60-1610(b)(3) acts to prevent any subsequent modifications by the court, even of void judgments, unless consented to by both parties or unless prescribed by the agreement itself.
The record provides no evidence of a settlement agreement between the parties when the original judgment and decree was issued. The post-divorce modification simply seems to have been a subsequent modification consented to by the parties. The district court treated the parties’ mutual agreement to move for modification as a “settlement agreement” and purported to “incorporate” it into the decree.
Interpretation of a statute is a question of law, and it is the function of this court to interpret the statute in a manner that will give it the effect the legislature intended. In re Marriage of Schoneman, 13 Kan. App. 2d 536, 538, 775 P.2d 194, rev. denied 245 Kan. 784 (1989). We believe that the legislature did not intend every post-divorce, mutually consented-to modification to be treated as a “settlement agreement” for the purposes of K.S.A. 1991 Supp. 60-1610(b)(3). Because there was no settlement agreement, the district court erred in finding it had no authority to modify maintenance.
Acquiescence
“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. [Citation omitted.]” In re Marriage of Powell, 13 Kan. App. 2d 174, 176, 766 P.2d 827 (1988), rev. denied 244 Kan. 737 (1989).
No amount of acquiescence under the facts of this case, however, can malee a void judgment valid. See Ford v. Willits, 237 Kan. 13, 15, 697 P.2d 834 (1985) (quoting 46 Am. Jur. 2d, Judgments § 752).
We reverse and remand the cause with directions that the district court limit the maintenance award to 121 months, reserving jurisdiction to hear a motion for reinstatement for additional 121-month periods as permitted by K.S.A. 1991 Supp. 60-1610(b)(2). | [
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Davis, J.:
The son and daughter of decedent, Ruby M. Campbell, filed a quiet title action claiming sole ownership of all joint accounts held with decedent. The executor of Ruby M. Campbell’s estate was granted summary judgment based on his claim that the decedent effectively terminated all joint accounts before her death. The son and daughter appeal. We affirm.
Ruby and Burgis Campbell had four children: Eugene, Barbara, Yvonne, and Terry. Burgis Campbell died in 1986. Ruby Campbell died on December 13, 1990, and her daughter, Barbara Walters, and son, Terry Campbell, claimed the money in the following accounts:
1. Citizens State Bank CD #73254
(allegedly payable on death [POD] to Barbara Walters)
2. Citizens State Bank CD #73393
(allegedly POD to Terry Campbell and Barbara Walters)
3. Citizens State Bank checking account #1152960006 (allegedly held in joint tenancy by Ruby and Terry Campbell)
4. Southwestern Savings and Loan Association money market demand account #52844
(allegedly held in joint tenancy by Ruby Campbell, Terry Campbell, and Barbara Walters)
5. Southwestern Savings and Loan Association account #1591 (allegedly held in joint tenancy by Ruby and Terry Campbell).
Their claim is based on the joint nature of the accounts. They did not claim at trial, nor do they claim on appeal, that they made any contribution to the accounts. All contributions to the accounts were made by Ruby Campbell or her husband, Burgis Campbell.
Most of the funds previously were held in joint tenancy with all four children. In 1986, the funds that were in or were used to establish four of the above accounts either were held in joint tenancy by Ruby and all four of her children or all four of her children were joint POD beneficiaries. Terry Campbell testified that in 1987, two of his siblings, Gene and Yvonne, filed suit against Terry and Ruby over some unspecified transactions. According to Terry, Ruby was angry about the lawsuit, and she deleted Gene and Yvonne as POD beneficiaries on the CDs. The record indicates that Ruby removed Gene’s and Yvonne’s names from the CDs and accounts at about the same time.
In 1987, Ruby executed a will that expressly provided that survivorship rights be honored with respect to any property she held in joint tenancy with another and otherwise divided her estate equally among her four children. In December 1989, Ruby executed a codicil to her 1987 will and provided that any loans remaining unpaid at the time of her death and any gifts exceeding $1,000 were to be treated as advancements against the recipient’s •share of her estate.
On January 30, 1990, Ruby filed a petition for voluntary conservatorship. The next day, the court issued an order appointing her son, Terry, as conservator. The court did not determine that Ruby was incompetent, but appointed a conservator to assist Ruby with her affairs because of her physical limitations.
On October 24, 1990, Ruby executed a new will that simply divided her estate equally among her four children and provided that any gifts or advancements exceeding $1,000 be charged against the recipient’s share of the estate. On the same date, Ruby sent the following one-sentence letter to each of the two financial institutions at which she had the above accounts: “Please have all accounts which I have converted to reflect me as the sole owner.” The financial institutions did not honor Ruby’s request to change her accounts to her sole ownership but froze the accounts because she was under conservatorship.
On the day Ruby died, Terry Campbell and Barbara Walters filed a petition to probate Ruby’s 1987 will as modified by the 1989 codicil. Tadd Black, the executor named in her last will and testament dated October 24, 1990, filed an answer and cross-petition to probate her last will and testament. Terry and Barbara contested Ruby’s last will and testament, alleging undue influence and lack of capacity. On April 25, 1991, the probate court found Ruby was competent to make her last will and testament on October 24, 1990.
The executor then filed the motion to have all accounts at Citizens State Bank and Southwestern Savings and Loan paid to him as executor. Terry and Barbara r'eplied, and the record does not indicate the probate court ruled on this motion. Thereafter, Terry and Barbara filed their present action to quiet title to the accounts in their names.
The executor moved for summary judgment, claiming that Ruby’s letter to the financial institutions effectively changed the ownership of the joint accounts and the beneficiary status of the CDs, which rendered them the sole and separate property of Ruby’s estate. The district court agreed and quieted title to all accounts in the estate of Ruby Campbell, deceased. Terry Campbell and Barbara Walters appeal, raising the following four issues: (1) Does a conservatee of a voluntary conservatorship have the capacity to change the nature of joint accounts? (2) Was the conservatee’s request in this action legally sufficient to change the accounts? (3) If the request was effective, do the named beneficiaries still maintain an interest in the joint accounts as tenants in common? (4) Did the district court’s decision violate equal protection?
Does a conservatee of a voluntary conservatorship have the capacity to change the nature of joint accounts and POD CDs?
a. POD Accounts-
The appellants correctly note that a voluntary conservatee does not have capacity to contract or to make inter vivos transfers that deplete the conservatorship estate. Citizens State Bank & Trust Co. v. Nolte, 226 Kan. 443, 452, 601 P.2d 1110 (1979). The holding in Nolte, however, is not dispositive of the issues here.
A conservatee retains the capacity to make testamentary dispositions. Union National Bank of Wichita v. Mayberry, 216 Kan. 757, 761-62, 533 P.2d 1303 (1975). The conservator’s duty “is to manage the estate during the conservatee’s lifetime. It is not his function, nor that of the probate court supervising the conservatorship, to control disposition of the conservatee’s property after death.” Nolte, 226 Kan. at 449. The authority of a conservatee to make testamentary dispositions includes the authority to change POD beneficiaries. Mayberry, 216 Kan. at 763. Ruby Campbell’s voluntary conservatorship did not deprive her of the capacity or authority to change (or delete) the beneficiaries on her POD CDs.
b. Accounts held in joint tenancy
Although Kansas appellate courts have not expressly held that a conservatee has authority to terminate a joint tenancy account, our language in In re Estate of Briley, 16 Kan. App. 2d 546, 825 P.2d 1181 (1992), suggests that a conservatee retains such authority. In Briley, a conservator closed a joint account on which others were named and opened a new account in his own name as conservator. The other joint account holders appealed, and this court held that the conservator lacked authority to do what he did. We noted:
“A conservator is not the alter ego of the conservatee, and the decision to terminate joint accounts or change a beneficiary is a purely personal right of the conservatee. The decision regarding the distribution of the conservatee’s property after death belongs to the conservatee.” 16 Kan. App. 2d 546, Syl. ¶ 3.
Under the facts of our case, we conclude that Ruby Campbell, as conservatee in the present action, retained her purely personal right to terminate joint accounts or change a beneficiary. .
It should be noted that the conservatorship in this case was established on a voluntary basis. Ruby, during the conservator-ship, retained the right to write checks up to $1,000 and established the voluntary conservatorship because of physical, rather than mental, infirmities. Finally, the appellants contested Ruby’s capacity to dispose of her property by testamentary disposition in her last will and testament, but lost on that issue in the probate court. On the same date Ruby executed her last will and testament, she directed the institutions holding her joint accounts and POD CDs to convert all funds to her sole ownership. Her capacity to make such a change and her intent to terminate the joint nature of the accounts is clear.
Was the conservatee’s request in this action legally sufficient to change the accounts?
The appellants claim that even if Ruby had the capacity to make the changes at issue, she did not comply with the formal requirements for making those changes. While the estate may be correct that this claim is not properly before this court, we elect to address the issue because appellants arguably raised it below.
a. POD Accounts
Kansas law does provide that no change in the designation of a POD beneficiary will be effective “unless executed in the form and manner prescribed by the bank and delivered to the bank prior to the death of the owner.” K.S.A. 9-1215. Ruby complied with the provisions of this statute.
The appellants note that in Mayberry, the conservatee executed the proper forms to change the POD beneficiary on a bond and obtained a new bond designating the new beneficiary. In this case, the financial institutions did not honor Ruby’s request and, instead, instructed her that she would have to obtain court approval to make the changes she requested.
Ruby was aged and dying of cancer when she executed her last will and testament on October 24, 1990, the same date she made her request to change her accounts to her name alone. Ruby’s intent is clear from her contemporaneous will and letters to the financial institutions. She died fewer than six weeks after the date on the banks’ letters informing her that they would not change the accounts without a court order. Given her physical condition and the clear expression of her intent, and a further indication by the institutions that they would consider her action legally sufficient but for the existence of the voluntary conservatorship, we conclude that Ruby’s request was legally sufficient to change the POD accounts.
b. Joint Tenancy Accounts
The appellants argue that a joint tenant could not unilaterally change ownership of the account because of the existence of the joint tenancy. However, a joint tenancy may be terminated (1) by mutual agreement of the parties, (2) by course of conduct indicating tenancy in common, or (3) by operation of law upon destruction of one or more of the required unities (time, title, interest, and possession). Hutchinson National Bank & Trust Co. v. Brown, 12 Kan. App. 2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988).
The creation of the voluntary conservatorship did not deprive Ruby of the capacity to terminate her joint accounts. Her unilateral conversion of the accounts to her sole ownership destroyed two of the basic unities of a joint tenancy — unity of possession and unity of interest. In converting the accounts to her sole ownership, she exercised dominion and control over the accounts as if they were her own property.
Again, the evidence indicated that the financial institutions would have honored Ruby’s request but for the existence of the conservatorship. Both institutions froze the assets merely because of the existence of the conservatorship. Ruby’s letter to the institutions terminated the joint tenancy by destroying one or more of the essential unities of the joint tenant account.
If the request to terminate the joint tenancy accounts was effective, do the named beneficiaries still maintain an interest in the joint accounts as tenants in common?
Termination of a joint tenancy results in a tenancy in common. Broum, 12 Kan. App. 2d at 675. The creation of a tenancy in common creates a rebuttable presumption of equal ownership. Walnut Valley State Bank v. Stovall, 223 Kan. 459, 462, 574 P.2d 1382 (1978).
In this case, the presumption has been rebutted. The money in the accounts belonged to Ruby. Appellants admitted that they made no contributions to the accounts. The banks stated that the money used to establish and maintain the accounts belonged to Burgis and Ruby Campbell. Appellants did not claim at trial, nor do they claim on appeal, that they made any contributions to the accounts. Even though Ruby’s action may have created a tenancy in common, the evidence indicated that she was entitled to sole ownership of the money in all accounts.
Did the district court’s decision violate equal protection?
Appellants claim that the trial court’s action violates equal protection because it effectively allows Ruby to withdraw funds, while Briley prohibits a conservator who is also a joint account holder, from withdrawing funds without a court order. Briley, however, does not prohibit a conservator from withdrawing funds. Briley merely holds that a conservator should obtain court approval for all withdrawals by any party to the account.
Finally, appellants’ equal protection argument overlooks the purpose of the conservatorship. The conservator is a fiduciary appointed to conserve the estate for the benefit of the conservatee. That he also is a joint account holder does not alter his fiduciary obligations. Terry Campbell voluntarily accepted this fiduciary obligation when he agreed to serve as his mother’s conservator. He was appointed to act for her benefit and in her interest and to protect the assets for her estate. This does not present a question of equal protection for joint account holders. The conservator and conservatee are not in the same relationship as mere joint account holders. The conservator owes a fiduciary obligation to the conservatee to act for her benefit and protection.
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Bullock, J.:
John Z. DeLorean appeals from a judgment of the district court which found him liable, as guarantor, for certain corporate debts of Dahlinger Pontiac-Cadillac, Inc. to the Kansas State Bank and Trust of Wichita. The evidence introduced at the bench trial was extensive and conflicting, ultimately resulting in the entry of 79 findings of fact arid 58 conclusions of law by the trial court. Highly summarized, the factual background necessary for a determination of the issues raised on appeal follows.
DeLorean, a New York inventor-irivestor-entrepreneur and former vice-president of General Motors, contacted the Bank in 1976 expressing his interest in acquiring controlling interest in one of the Bank’s corporate customers, the financially troubled Dahlinger automobile dealership. Thereafter, DeLorean sent his agent, Roy Nesseth, to investigate Dahlinger’s financial condition. After concluding this investigation, Nesseth commenced negotiations with the owners of Dahlinger. Eventually, De-Lorean’s personal attorney, Thomas Kimmerly, assisted in closing the resulting sale, wherein 25% of the Dahlinger stock re mained with Jerry Dahlinger and 75% was transferred to Nesseth and Kimmerly. Although DeLorean held no stock in his name, J. V. Lentell, the Bank’s president, understood, and the trial court found, that DeLorean was the “financial power” behind the purchase. Consistent with this understanding, DeLorean’s December 31, 1976, personal financial statement revealed an equity investment in a “Pontiac-Cadillac dealership in Wichita, Kansas” in the amount of $200,000.
In order to obtain credit from the Bank for this newly acquired dealership, DeLorean personally guaranteed the Dahlinger floor-plan loan, a Dahlinger promissory note and a $385,000 loan made by the Bank to the John Z. DeLorean Corporation (a separate corporation, wholly owned by DeLorean). Notwithstanding these infusions of credit, by the late summer of 1977, Dahlinger was once again experiencing financial difficulty. In fact, it was at this time that the Bank notified Dahlinger and DeLorean it would no longer honor overdrafts on the corporate checking account. As a result of these developments, the DeLorean interests decided to sell the troubled dealership, if a buyer could be found. In due course, a group of Texas investors became interested, but only on the condition that DeLorean could first purchase and then lease to them the land on which the Dahlinger place of business was located. In order to satisfy this condition, DeLorean needed another loan.
On Sunday, September 11, 1977, a meeting was held at the offices of the Bank for the purpose of discussing the financial condition of Dahlinger and the terms of the prospective sale of the dealership. On that date, the total Dahlinger indebtedness to the Bank, including both principal and interest, was in the approximate amount of $700,000. In addition, the $385,000 loan to DeLorean’s own corporation was in default. At this meeting, predictably, the Bank indicated its desire to both protect and recover its investments and, at the same time, avoid the difficulty and expense connected with foreclosure. On the other side of the conference table, the DeLorean interests desired to obtain additional monies for several purposes, including the purchase of the real estate in question. Consistent with its objectives, the Bank proposed to loan DeLorean $1,350,000 for 20 years at 5% and to loan the continuing Dahlinger corporation the sum of $250,000 on identical terms. The purpose of the loan to DeLorean, pro posed by the Bank, was to provide $850,000 for the purchase of the subject real estate and an additional $500,000 to be held in escrow to assure the payment of that part of the remaining Dahlinger indebtedness to the Bank not covered by the new $250,000 loan. The remarkably favorable terms of the proposed loans, both as to time and interest rate, were the Bank’s concessions to the obvious financial difficulties of its borrower and were expressly offered by the Bank in an effort to avoid foreclosure.
In response to the Bank’s proposal, DeLorean expressed interest in the loans, but on different terms. His proposal was that the “extra” $500,000 be released to him for his own use, the Bank being required to look to Dahlinger and its assets for the repayment of the balance of the Dahlinger indebtedness. The Bank would not agree to DeLorean’s terms. Accordingly, a compromise was struck whereby the Bank loaned Dahlinger the sum of $250,000 and loaned DeLorean the sum of $1,350,000, both loans being for 20 years at 5% and on conditions which follow. The DeLorean loan was disbursed as agreed: $850,000 for the real estate purchase, $385,000 to pay off the delinquent DeLorean Corporation loan and $115,000 to DeLorean in cash. In exchange for these loans, DeLorean agreed to guarantee up to $450,000 of the remaining Dahlinger indebtedness (a sum slightly in excess of the principal and interest then due on the total Dahlinger debt to the Bank, after first subtracting the new loan to Dahlinger). The parties specifically agreed that the Bank would have no further obligation to liquidate the Dahlinger pledged collateral but, if Dahlinger did so, any proceeds therefrom, actually paid to the Bank, would reduce DeLorean’s guaranty “dollar for dollar.” The clear intent of the parties, reflected throughout the trial court’s extensive findings and conclusions, was that DeLorean’s guaranty would ultimately assure the Bank full payment of the remaining Dahlinger indebtedness to the same extent that the Bank would have been paid if the additional $500,000 had been escrowed and applied to those debts on September 11, as the Bank originally proposed.
On September 12, 1977, Kimmerly, DeLorean’s attorney, prepared and executed, as DeLorean’s attorney-in-fact, a written guaranty intended by the parties to reflect their agreements made the prior day. The terms of that agreement are as follows:
“September 12, 1977
To THE KANSAS STATE BANK AND TRUST COMPANY WICHITA, KANSAS
“In consideration of one dollar, to me paid, receipt of which is hereby acknowledged, the total and absolute release of any and all other guarantees previously made by me on behalf of Dahlinger Pontiac-Cadillac, Inc., (hereinafter styled the ‘borrower’) and other valuable considerations and of the advances already made to the account of the borrower, I hereby guarantee to you, your successors and assigns, the payment of the principal sum of Four Hundred Fifty Thousand and 00/100 ($450,000.00) Dollars, so advanced, this sum of $450,000.00 here guaranteed is the amount owed to you by the borrower of approximately $700,000.00 less $250,000.00 you have agreed to loan the borrower on a 20 year 5% note and apply against the current due amount of $700,000.00 leaving the $450,000.00 here guaranteed; and I hereby authorize you at any time in such manner and upon such terms as you may see fit, to extend the time for or change the manner or terms of payment of any such sum or sums of money or any part thereof, without notice to me, and I hereby agree that such extension of time for or change in the manner or terms of payment shall not in any way release me from or reduce my liability on this guarantee.
“This guaranty shall be reduced by the amount of any cash, notes, drafts, acceptances, checks, or other evidences of indebtedness as is (sic) commercially acceptable which is (sic) deposited into the account of the borrower, on a dollar for dollar basis. In the event of a voluntary foreclosure on assets, the sum actually received on the sale of such assets shall be the (sic) considered as cash paid and deposited in the account of the borrower.
Isl Tohn Z. DeLorean
JOHN Z. DE LOREAN
Isl by Thomas W. Kimmerly, Att’y”
On September 14, 1977, the Bank furnished to DeLorean’s agents a summary of all the aforementioned agreements and financial arrangements agreed to on September 11. No objection was ever received by the Bank to this summary and no indication was ever made, until the trial of this action, that the same did not reflect the understanding of the parties.
During the months following the financial transaction previously described, Nesseth continued to run the dealership. With few exceptions, however, he failed to apply the proceeds from the sale of pledged collateral to the Dahlinger bank debt. That Nesseth played “fast and loose” with the assets of the corporation is no longer open to controversy. See Binyon v. Nesseth, 7 Kan. App. 2d 110, 638 P.2d 946 (1981). Although the Bank no longer “policed” the Dahlinger floorplan note, consistent with its agreement with DeLorean, it became increasingly suspicious of Nesseth and of his failure to reduce the Dahlinger debt. These suspicions were communicated on several occasions to DeLorean and his agents and, eventually, on May 18, 1978, formal demand was made upon DeLorean to make good his guaranty. T^his suit followed on May 30, 1978, Count 1 of the petition stating a cause of action premised on the September 12, 1977, guaranty agree-1 ment and Count 2 stating a cause of action on DeLorean’s guaranty of an unrelated personal promissory note of Nesseth. The Bank’s motion for summary judgment was granted on the second cause of action and no appeal has been taken from that judgment. Count 1 proceeded to trial, resulting in a judgment for the Bank in the amount of $290,409.01, the unpaid amount of the guaranteed portion of the Dahlinger debt, including accrued interest, as of February 25, 1980, together with interest thereafter on the underlying principal sum of $237,124.70 at the rate of $64.97 per day. DeLorean’s motion to amend findings and judgment was overruled and this appeal was duly perfected.
1. DeLorean first asserts the trial court erred in its construction of the loan guaranty contract. The particular point of contention is the court’s interpretation of the guaranty reduction provision:
“This guaranty shall be reduced by the amount of any cash, notes, drafts, acceptances, checks, or other evidences of indebtedness as is commercially acceptable which is deposited into the account of the borrower, on a dollar for dollar basis.”
The thrust of DeLorean’s argument on this issue is that the amount of the judgment against him should have been reduced by certain deposits made in the Dahlinger checking account subsequent to September 11, 1977, albeit those sums were never actually received by the Bank as a creditor or credited against the Dahlinger indebtedness. The Bank on the other hand contends the “account” referred to in the agreement is the “loan liability ledger” account which reflects payments actually made on the loan.
The trial court found the contract unambiguous and held “defendant’s liability would be reduced by the amounts (other than the new loan to the borrower) that were credited to the ‘formal record’ of the borrower’s indebtedness [the Bank’s liability ledger] . . . subsequent to the execution of the guaranty.”
We begin our inquiry by examining the question of ambiguity which is a matter of law to be decided by the court. First National Bank of Hutchinson v. Kaiser, 222 Kan. 274, 278, 564 P.2d 493 (1977); Mobile Acres, Inc. v. Kurata, 211 Kan. 833, 839, 508 P.2d 889 (1973), Robertson v. McCune, 205 Kan. 696, 700, 472 P.2d 215 (1970). “On appeal we have the same opportunity afforded the trial court to decide the question of ambiguity because the contract is in writing.” Kauk v. First Nat’l Bank of Hoxie, 5 Kan. App. 2d 83, 87, 613 P.2d 670 (1980). Accord, In re Estate of Thompson, 226 Kan. 437, 440, 601 P.2d 1105 (1979); Keeler Co. v. Atchison, T. & S. F. Rly. Co., 187 Kan. 125, 126, 354 P.2d 368 (1960).
A contract of guaranty, like other contracts, is to be construed according to the intention of the parties. Trego WaKeeney State Bank v. Maier, 214 Kan. 169, 174, 519 P.2d 743 (1974). Accord, Mobile Acres, Inc. v. Kurata, 211 Kan. at 838; Koerner v. Custom Components, Inc., 4 Kan. App. 2d 113, 119, 603 P.2d 628 (1979). Under principles too familiar to require citation, ambiguities in written agreements are uniformly construed against the party who authored the instrument, inasmuch as it is that party who, through due care in drafting, could have wholly prevented the controversy. Where the language of the contract leaves the intent of the parties doubtful or unclear, “the instrument must be said to be ambiguous, in which case the facts and circumstances surrounding its execution become competent as to which one of two or more meanings was intended.” Mobile Acres, Inc. v. Kurata, 211 Kan. at 839. Accord, Amortibanc Investment Co. v. Jehan, 220 Kan. 33, 43, 551 P.2d 918 (1976); Robertson v. McCune, 205 Kan. at 699.
The financial relationship of the two parties to this action at the time of the execution of the guaranty on September 12, 1977, is not in controversy. Defendant was the guarantor of indebtedness in excess of $340,000.00 for the financially troubled car dealership, and he was the personal guarantor of a $385,000 loan, then in default, to the John Z. DeLorean Corporation. Against this factual background, the parties entered complex negotiations whereby defendant eventually received a long-term, low-interest loan of $1,350,000.00, which allowed him to purchase property to facilitate sale of the dealership, pay off the DeLorean Corporation indebtedness, and obtain his release from prior Dahlinger guarantees, among other benefits. In return, defendant guaranteed $450,000.00 of Dahlinger indebtedness subject to the reduction provision here in question.
Defendant testified he authorized his attorney to sign the guaranty only after receiving assurances that the Dahlinger assets were sufficient “so I could never be called on to make good on it.” Kimmerly testified defendant was willing to participate in the deal to “help the bank out.” In keeping with these altruistic motives, defendant’s theory is his guaranty was to be reduced by any money deposited to the Dahlinger checking account. Reviewing the record, we find that the concurrent $250,000.00 Dahlinger loan (already subtracted from the Dahlinger debt in calculating the guaranty amount) was deposited to the checking account, $97,000.00 of which was withdrawn, then redeposited. DeLorean would have us believe the Bank agreed to reduce his net guaranty a second and third time with the Bank’s own loan proceeds, deposited not once but twice. Defendant’s attorney also directed the Bank to make payments from the checking account to third parties. Again, defendant contends these monies reduce his guaranty.
Reasonable rather than unreasonable interpretations of contracts are favored. “Results which vitiate the purpose or reduce the terms of a contract to an absurdity should be avoided.” Weiner v. Wilshire Oil Co., 192 Kan. 490, 496, 389 P.2d 803 (1964); Geiger v. Eagle-Cherokee Coal Mining Co., 181 Kan. 567, 573, 313 P.2d 731 (1957). In construing a contract of guaranty entered into by a financial institution and a sophisticated businessman, we find the reasonable interpretation of their intentions to be that advanced by plaintiff: to reduce the amount of the guaranty as the level of guaranteed indebtedness is reduced, exclusive of any reduction occurring as a result of the concurrent $250,000.00 loan to Dahlinger. While the use of the word “deposited” is troublesome, we conclude, as did the trial court, that reductions in indebtedness as reflected in the loan liability ledger, rather than a deposit to the borrower’s checking account, was the intended measuring stick for reducing the amount of defendant’s guaranty.
As we have previously noted, the “pole star” in the construction of any contract is the intention of the parties. The record here reflects not only the “circumstances” surrounding the transaction, but it also contains the oral agreements and memoranda indicating what the parties intended and understood the agreement to contain. Those oral agreements and memoranda, properly admitted to explain the ambiguous document, also make abundantly plain the accuracy of the trial court’s interpretation of the agreement. Accordingly, we conclude DeLorean’s first contention lacks merit.
2. DeLorean’s second contention is that the trial court erred in awarding judgment for amounts not properly within the scope of the guaranty. He specifically challenges the inclusion of predemand interest, post-demand interest, and the amount of Dahlinger-spawned garnishments adjudicated and pending against the Bank at the time of the September 11, 1977, agreement.
The difficulty with these contentions, insofar as DeLorean is concerned, is that the trial court found from disputed evidence that the intention of the parties was that these debts be covered by the guaranty. As to interest owing at the date of the guaranty and the garnishment obligations, the memoranda of the parties’ understanding, which the guaranty was intended to memorialize, clearly included such sums in calculating the total amount of the Dahlinger debt to be guaranteed by DeLorean. As to interest accruing subsequent to the date of the guaranty but prior to demand, the intention of the parties that the guaranty make the Bank whole to the same extent as if it had been paid on September 11, 1977, controls — despite the parties’ use of the ambiguous guaranty term “principal sum” to describe a sum which admittedly contained both principal and interest. Further, DeLorean repeatedly assured the Bank, throughout this period, that he would contact Nesseth and see that Nesseth paid the debt from Dahlinger assets. This conduct on the part of DeLorean clearly caused the Bank to delay its demand. Under such circumstances, DeLorean can hardly be heard to complain when compelled to compensate the Bank for interest accruing during that period.
Turning to the question of post-demand interest, we conclude such interest does not represent an indebtedness of Dahlinger at all, but that it is, rather, a debt of DeLorean himself, properly allowed by the trial court. “[W]hen the debt has matured against the guarantor, the debt is the guarantor’s primary obligation and interest may be recovered even though the effect is to increase the judgment beyond the limit of liability stated in the guaranty contract.” 38 Am. Jur. 2d, Guaranty § 76, pp. 1082-83.
For all of the reasons stated, we likewise conclude DeLorean’s second contention lacks merit.
3. DeLorean’s final contention is that the trial court erred in holding the defense of impairment of collateral inapplicable to the guaranty.
A guaranty involves a tripartite relationship based on a contract between two or more persons by which one person promises to answer for the debt of a third person. Trego WaKeeney State Bank v. Maier, 214 Kan. at 173; Bomud Co. v. Yockey Oil Co., 180 Kan. 109, 114, 299 P.2d 72 (1956). It can be, by its provisions, a conditional or an unconditional guaranty. The principal distinction between the two lies in the creditor’s duty to proceed against the principal obligor before attempting to collect from the guarantor, an obligation imposed by conditional, but not by unconditional, guaranties. United States v. Willis, 593 F.2d 247, 254 (6th Cir. 1979). See Howell v. Ablah, 188 Kan. 244, 250, 361 P.2d 872 (1961). Uniform Commercial Code terminology recognizes comparable categories of negotiable instrument guaranties, distinguished by whether the words “collection guaranteed” or “payment guaranteed” are added to the signature. K.S.A. 84-3-416.
In the case at bar the trial court found the guaranty to be absolute, unconditional, in form and concluded:
“24. The defendant’s allegations of impairment of collateral cannot constitute a defense to the bank’s claim because the guaranty being sued upon here is absolute in form.”
In our view, the trial court confused two separate and unrelated issues. The form of the guaranty (conditional or unconditional) determines only whether the creditor is required to first proceed against the principal obligor. Separate and apart from that issue is the defense a guarantor may raise in an action against him that part or all of his obligation has been discharged by the creditor’s impairment of the collateral. While we agree with the trial court’s characterization of this guaranty as absolute or unconditional, we turn now to a closer examination of the impairment of collateral issue.
Appellant argues this action is controlled by the Uniform Commercial Code provision on impairment of collateral, K.S.A. 84-3-606, which provides in pertinent part:
“(1) The holder discharges any party to the instrumentto the extent that without such party’s consent the holder
(b) unjustifiably impairs any collateral for the instrument given by or on behalf of the party or any person against whom he has a right of recourse.” (Emphasis added.)
The italicized language “any party to the instrument” is dispositive of the argument. K.S.A. 84-3-102(l)(e) defines “instrument” to mean “negotiable instrument.” The document in question is not a negotiable instrument but rather a separate contract of guaranty. Thus, the UCC provision is not applicable. Ishak v. Elgin Nat’l Bk., 48 Ill. App. 3d 614, 363 N.E.2d 159 (1977). We do note in passing, however, that even the UCC impairment provision is not absolute; consent may be given before or after impairment and if given, operates as a waiver of discharge. See K.S.A. 84-3-606, Comment 2.
Appellant is correct in stating the common-law rule in this as well as other jurisdictions that impairment of collateral by a guarantee discharges the guarantor’s obligation pro tanto. E.g., Withers v. Berry, 25 Kan. 373, 375 (1881); Langeveld v. L.R.Z.H. Corporation, 74 N.J. 45, 50-51, 376 A.2d 931 (1977); 38 C.J.S., Guaranty § 81. There are, however, exceptions to the general rule. One such exception is that a guarantor can consent to lack of diligence in collection or an impairment of collateral and thus waive discharge, much as under the Uniform Commercial Code. We find one early Kansas case particularly persuasive. In Furst v. Buss, 104 Kan. 245, 178 Pac. 411 (1919), Furst & Thomas extended credit to one McNitt on the basis of a guaranty signed by Buss and Phillips which provided:
“In consideration of Furst & Thomas extending credit to . . . Salesman [B. McNitt] we, the undersigned, jointly and severally, guarantee to them the faithful performance of this contract by him, and full settlement according to its terms, for all goods sold to him on credit by them, hereby waiving notice of acceptance and all notice as to the account of said Salesman, and we agree that any extension of time to him shall not release us from liability hereon.” 104 Kan. at 246.
An insolvent McNitt defaulted on his contract to pay for the merchandise, and defendants refused to honor their guaranty arguing, among other things, the discharge of their obligation because of plaintiffs’ “gross want of diligence” in collecting from McNitt “when if diligence had been used, plaintiffs might have collected from him while he still had funds and property to satisfy his obligations.” 104 Kan. at 249. The court found the defense unpersuasive because “the guarantors bound themselves ‘that any extension of time to him [McNitt] shall not release us from liability.’ So the long delay in bringing suit ... is insufficient to discharge . . . the defendants.” 104 Kan. at 249.
In the case at bar, DeLorean became obligated on a guaranty which provided in part:
“I hereby authorize you at any time in such manner and upon such terms as you may see fit, to extend the time for or change the manner or terms of payment of any such sum or sums of money or any part thereof, without notice to me, and I hereby agree that such extension of time for or change in the manner or terms of payment shall not in any way release me from or reduce my liability on this guaranty.”
DeLorean complains specifically that the Bank did not foreclose on secured assets before his unfaithful agent dissipated them. But DeLorean, by the terms of the agreement itself (particularly as explained by the contemporary oral understandings of the parties previously mentioned), relieved the Bank of any obligation to foreclose or to act immediately to collect on the debt. This guaranty and waiver is precisely that which DeLorean gave for the Bank’s 5%, 20-year, $1,350,000 loan. DeLorean further complains that the Bank discontinued its regular inventory inspections. The trial court found that DeLorean had not only agreed to this arrangement, but that, in essence, he was in a better position than the Bank to police the collateral inasmuch as his agents were in control of the dealership. We concur.
However desirable it might have been that foreclosure occur at an earlier date or that routine inspections be performed, De-Lorean clearly consented to less vigorous debt collection procedures. He cannot now be heard to complain that the collateral for the debt was impaired as a result.
Even though the trial court determined the defense of impairment of collateral was not available to the appellant because the guaranty was absolute in form and we determine the defense was not available because appellant consented to whatever impairment occurred, we affirm the trial court’s ruling. If the judgment of the trial court is correct, it is to be upheld even though the court may have relied upon a wrong ground or assigned an erroneous reason for its decision. Farmers State Bank v. Cooper, 227 Kan. 547, 556, 608 P.2d 929 (1980); Chelsea Plaza Homes, Inc. v. Moore, 226 Kan. 430, 435, 601 P.2d 1100 (1979).
Although “findings not supported by substantial competent evidence” is not assigned as a formal issue in this appeal, throughout DeLorean’s brief and oral argument here, counsel for DeLorean continually referred this court to facts in the record which arguably lead to factual conclusions contrary to those found by the trial court. We concede, in some instances, such exist. The function of this court, however, is not to retry the facts. If the findings of the trial court are supported by substantial competent evidence we are bound thereby, even though the record contains other evidence from which contrary conclusions might have been drawn. From our examination of the entire record in these proceedings we easily conclude that the findings and conclusions of the trial court are amply supported by substantial competent evidence and we cannot disturb them on appeal. City of Council Grove v. Ossmann, 219 Kan. 120, Syl. ¶ 1, 546 P.2d 1399 (1976).
Affirmed. | [
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|
Swinehart, J.:
This is an appeal by defendant John H. Toland from the order of the District Court of Reno County denying his motion to set aside a default judgment in a negligence action.
On April 27, 1978, plaintiff Leah M. Barkley and defendant were involved in an automobile accident in Hutchinson, Kansas. On March 31, 1980, plaintiff filed suit against defendant, and summons was directed to defendant at 3306 North Elm, Hutchinson. On April 3, 1980, an officer of the Reno County Sheriff’s office went to that address to attempt service on the defendant. Defendant’s mother accepted the summons and told the officer that her son was not there; that he was presently in school in Oklahoma and came home occasionally on weekends and holidays. She also stated that 3306 North Elm was defendant’s “permanent address.”
On April 4, 1980, defendant’s mother took the summons and petition to the local office of the agent for the Pennsylvania National Mutual Casualty Insurance Company, the insurer of defendant’s automobile which was involved in the accident. Defendant’s mother did not give or send the summons to defendant and failed to even tell him of its existence. She was contacted about three weeks after the original service by someone in the insurance agent’s office and was told that “they had taken care of it and that’s all there was to it.”
On April 25, 1980, plaintiff moved for default judgment on the issue of liability only. The motion was granted and the journal entry of default judgment recited: “That the defendant was properly served with summons as by law required on the 3rd day of April, 1980, and that no substantive pleading has been filed by Defendant or on his behalf.” That same order also directed that plaintiff “shall give notice to Defendant as to the day and time evidence will be presented to this Court on the question of damages alleged in Plaintiff’s Petition.”
A copy of the order was mailed to defendant at 3306 North Elm, Hutchinson, on May 22, 1980, and also to defendant’s insurance agent on May 28, 1980, pursuant to the trial court’s request. Sometime during May of 1980, defendant received actual notice of the lawsuit from a third party.
On June 9, 1980, the trial court held the scheduled hearing on the issue of plaintiff’s damages. No appearance was made by defendant. After hearing evidence as to plaintiff’s damages, judgment in the amount of $50,000 was entered against defendant.
On July 2, 1980, plaintiff filed a request for garnishment with the office of the Clerk of the District Court of Reno County against Pennsylvania National Mutual Casualty Insurance Company. On July 18, 1980, the garnishee filed its answer, alleging that the default judgment entered against defendant was void, in that no service of process was ever effected.
On August 14, 1980, defendant filed a motion with the trial court pursuant to K.S.A. 60-255(h) and 60-260(¿) for an order setting aside the default judgment, alleging that the judgment was void for lack of jurisdiction and personal service on the defendant as required by K.S.A. 60-304 and 60-308.
Defendant moved to Oklahoma in August of 1978 to attend school at the Spartan School of Aeronautics. He rented a house in Tulsa where he lived from August of 1978 until November of 1980. He returned to Hutchinson only occasionally for brief visits during this period. He completed his course work at Spartan in February of 1980 and became employed by Air Tulsa where he is also taking some courses or training to obtain his instructor’s rating. During this period of time, his driver’s license, automobile registration and automobile title and tax returns all listed 3306 North Elm in Hutchinson as his address, and he paid personal property taxes in Reno County.
On November 26, 1980, the trial court heard defendant’s motion to set aside the default judgment. On March 17, 1981, the court issued its memorandum opinion ruling that the purported service of April 3, 1980, was ineffective. The trial court refused, however, to set aside the default judgment on the basis that the motion to set aside the judgment was not made within a reasonable time.
Defendant appeals from this ruling, raising the issue of whether the trial court erred in refusing to grant defendant’s motion to set aside the default judgment after finding that defendant was not properly served.
Plaintiff-appellee Barkley contends in her brief that the trial court erred in finding that the service of process on defendant was not proper.
K.S.A. 60-2103(h) provides:
“(h) Cross-appeal. When notice of appeal has been served in a case and the appellee desires to have a review of rulings and decisions of which he or she complaints, the appellee shall within twenty (20) days after the notice of appeal has been served upon him or her and filed with the clerk of the trial court, give notice of his or her cross-appeal.”
No such notice of cross-appeal was filed in the present case. Consequently, this court is precluded from reviewing the trial court’s rulings complained of in plaintiff’s brief. Vaughn v. Murray, 214 Kan. 456, Syl. ¶ 5, 521 P.2d 262 (1974); Key v. Clegg, 4 Kan. App. 2d 267, 276, 604 P.2d 1212, rev. denied 227 Kan. 927 (1980).
Defendant contends that the trial court erred in refusing to grant his motion to set aside a default judgment after finding that he was not properly served. The trial court held that the failure of defendant or his insurance company to move to set aside the judgment until after June 30,1980, so that plaintiff’s claim would be barred by K.S.A. 60-203 and 60-513, the applicable statute of limitations, was a free, calculated and deliberate choice so as to prevent the trial court from exercising its discretion in setting aside the judgment. The defendant maintains that once the trial court found service to be improper, it was without discretion and was required to set aside the judgment.
In Haley v. Hershberger, 207 Kan. 459, Syl. ¶ 2, 485 P.2d 1321 (1971), the court held:
“Jurisdiction over the person of the defendant can be acquired only by issuance and service of process in the method prescribed by statute, or by voluntary appearance.”
In American Home Life Ins. Co. v. Heide, 199 Kan. 652, Syl. ¶ 3, 433 P.2d 454 (1967), the court held:
“A motion in an action asking that a district court’s judgment therein be vacated because of lack of jurisdiction over the person is within the purview of K.S.A. 60-260(¿)(4).”
The court further stated:
“There is no necessity to defend on the merits against a void judgment before it can be vacated; likewise knowledge of the pendency of the action is an immaterial factor in its vacation; the attack may take various forms, and there is no time limitation.
“If the judgment were void, appellant was entitled to have it vacated as requested.” (Emphasis supplied.) p. 655.
The court went on to find that the judgment was not void. K.S.A. 60-260(h) provides in part:
“On motion and upon such terms as are just, the court may relieve a party or said party’s legal representative from a final judgment, order, or proceeding for the following reasons .... (4) the judgment is void .... The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken.”
In Jones v. Smith, 5 Kan. App. 2d 352, Syl. ¶ 6, 616 P.2d 300, rev. denied 228 Kan. 806 (1980), this court held that a motion for relief from a judgment under K.S.A. 60-260(h)(6) must be made within a reasonable time and stated:
“A determination of ‘reasonable time’ under the statute depends on all the circumstances, including the time between the entry of the judgment from which relief is sought and the time of the motion, the time at which the parties seeking relief became aware of the grounds supporting their motion, any changes the parties may have made in reliance on the judgment, and all other relevant factors.”
The issue left unresolved in the present case is whether a motion for relief from a judgment under K.S.A. 60-260(h)(4) must be made within a reasonable time.
The provisions of K.S.A. 60-260(h) were patterned after the Federal Rules of Civil Procedure, and the Kansas Courts have often considered applicable federal cases for guidance. Reliance Insurance Companies v. Thompson-Hayward Chemical Co., 214 Kan. 110, 117, 519 P.2d 730 (1974); Jones v. Smith, 5 Kan. App. 2d at 354.
Misco Leasing, Inc. v. Vaughn, 450 F.2d 257 (10th Cir. 1971), concerned proceedings on a motion before the Federal District Court of Kansas to vacate a default judgment. The court held that process under the Kansas long-arm statute was not valid under the facts of the case. The plaintiff then raised the issue of whether the defendant was barred from relief under Federal Rule of Civil Procedure 60(b)(4) (comparable to K.S.A. 60-260 [¿>] [4]) because he did not move to vacate the judgment within a reasonable time after its entry. The defendant waited two years to make the motion to vacate the judgment. The court held:
“As to point 1, it does not appear that the motion under Rule 60(b) must be filed within any particular time limit if the judgment is indeed a nullity due to a complete lack of personal jurisdiction over the defendant. The cases say that a void judgment acquires no validity as the result of laches on the part of the adverse party. [Taft v. Donellan Jerome, Inc., 407 F.2d 807, 808 (7th Cir. 1969); Austin v. Smith, 114 U.S. App. D.C. 97, 312 F.2d 337, 343 (D.C. Cir. 1962); Marquette Corporation v. Priester, 234 F. Supp. 799, 802 (E.D.S.C. 1964).] We are not asked to consider whether under any particular circumstances a movant under Rule 60(b) may be estopped or precluded from filing such a motion.” p. 260.
In 7 Moore’s Federal Practice § 60.25 [2], pp. 300-301 (2d ed. 1982), the following discussion is found:
“A void judgment is something very different than a valid judgment. The void judgment creates no binding obligation upon the parties, or their privies; it is legally ineffective. And while, if it is a judgment rendered by a federal district court, the court which rendered it may set it aside under Rule 59, within the short time period therein provided, or the judgment may be reversed or set aside upon an appeal taken within due time where the record is adequate to show voidness, the judgment may also be set aside under 60(b)(4) within a ‘reasonable time’, which, as here applied, means generally no time limit, the enforcement of the judgment may be enjoined; or the judgment may be collaterally attacked at any time in any proceeding, state or federal, in which the effect of the judgment comes in issue, which means that if the judgment is void it should be treated as legally ineffective in the subsequent proceeding. Even the party which obtained the void judgment may collaterally attack it. And the substance of these principles are equally applicable to a void state judgment.
“A party attacking a judgment as void need show no meritorious claim or defense or other equities on his behalf; he is entitled to have the judgment treated for what it is, a legal nullity, if he establishes that the judgment is void.”
The treatise further states at § 60.25[4], pp. 314-315:
“Unlike clauses (l)-(3), a motion under clause (4) is not subject to a maximum time limitation of one year, but like a motion under clauses (5) and (6), the Rule provides that the 60(b)(4) motion must be made within a ‘reasonable time’. What is the meaning of this ‘reasonable time’ limitation with respect to a motion for relief from a void judgment?
“The theory underlying the concept of a void judgment is that it is legally ineffective — a legal nullity; and may be vacated by the court which rendered it at any time. Laches of a party can not cure a judgment that is so defective as to be void; laches cannot infuse the judgment with life. Further, it may, when appropriately called in question, be adjudged void in any collateral proceeding, and this collateral attack may be made at any time. Since a federal judgment that is void can be so collaterally attacked, and since the judgment sustaining the collateral attack would have to be given effect in a subsequent 60(b)(4) motion to set the federal judgment aside as void, the ‘reasonable time’ limitation must generally mean no time limit, although there may be exceptional situations where the reasonable time limitation would require diligence on the part of the movant.”
11 Wright & Miller, Federal Practice and Procedure: Civil § 2862, pp. 197-198 (1973), provides the following discussion on this issue:
“Rule 60(b)(4) authorizes relief from void judgments. Necessarily a motion under this part of the rule differs markedly from motions under the other clauses of Rule 60(b). There is no question of discretion on the part of the court when a motion is under Rule 60(b)(4). Nor is there any requirement, as there usually is when default judgments are attacked under Rule 60(b), that the moving party show that he has a meritorious defense. Either a judgment is void or it is valid. Determining which it is may well present a difficult question, but when that question is resolved, the court must act accordingly.
“By the same token, there is no time limit on an attack on a judgment as void. The one-year limit applicable to some Rule 60(b) motions is expressly inapplicable, and even the requirement that the motion be made within a ‘reasonable time,’ which seems literally to apply to motions under Rule 60(b)(4), cannot be enforced with regard to this class of motion. A void judgment cannot acquire validity because of laches on the part of the judgment debtor.” (Emphasis supplied.)
The clear consensus is that a motion made to set aside a void judgment can be made at any time, since the passage of time cannot cure the defect in the judgment. We find that the trial court in the present case erred in refusing to set aside the judgment because defendant’s motion, which was filed approximately two months after the $50,000 judgment was entered and approximately three months after he obtained actual notice of the suit, was not filed within a reasonable time.
Reversed and remanded with directions to set aside the default judgment. | [
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Meyer, J.:
This case involves the interpretation of a will in a partition action.
Appellees M. Candice Cox, Nancy K. Dain, and John T. Cherryholmes brought this action against the devisees of B. T. Freeman for partition of real estate and for a determination of ownership of certain farm property which passed to said devisees pursuant to a will of B. T. Freeman.
The case was presented to the trial court on the following stipulation of facts:
“1. Benjamin Tolliver Freeman, a/k/a B. T. Freeman, died November 18, 1933, and was preceded in death by his wife, Ida Elizabeth Freeman.
“2. At his death, B. T. Freeman was survived by 11 children, five of whom, as follows, have subsequently died without issue:
Miranda Catherine Freeman
Mary Edna Hay
Frances Darlene Rosier
Sarah Margaret Freeman
Alice Lee Freeman;
and five of whom have subsequently died leaving issue, as follows:
Grace Stackley
Anna Laura Cherryholmes Albert T. Freeman
Bonnie Forristall
Nellie May Hanson;
and that one child of B. T. Freeman is living, as follows:
Delilah Stackley.
“3. That the issue of the deceased children of B. T. Freeman are as follows:
Grace Stackley:
Ernest Stackley
Leland Stackley
Anna Laura Cherryholmes:
James T. Cherryholmes
Clifford Cherryholmes
Albert T. Freeman:
Freda Evans
Arlene Galliart
Pat Foreman
Bonnie Forristall:
Floyd Forristall
John Forristall
Hope Albert
Philena Grier
Nellie Hanson:
Nathan Hanson
Irwin Hanson
Hugh Hanson
“4. That Clifford Cherryholmes has conveyed his interest in the subject matter of this action to his children, in equal shares, said children being the plaintiffs herein as follows:
M. Candice Cox
Nancy K- Dain
John T. Cherryholmes;
and that a copy of said conveyance is attached hereto and made a part hereof.
“5. That since the commencement of this action, John Forristall has died and that his interest herein shall pass to and be administered by the personal representative of his estate.
“6. That the Last Will and Testament of B. T. Freeman granted life estates in the subject matter of this action to Miranda Catherine Freeman and Alice Freeman, said life estates being terminable upon the marriage of either of said life tenants. That neither said life tenant ever married.
“7. That Miranda Catherine Freeman died October 19, 1951, and that Alice Freeman, a/k/a Alice Lee Freeman died July 4, 1980. That copies of their respective death certificates are attached hereto and made a part hereof and that certified copies of their death certificates have been or will be filed with the Register of Deeds of Butler County, Kansas, the costs of said filing to be made a part of the costs of this case.
“8. That the sequence of death of the 10 deceased children of the 11 children of B. T. Freeman who were living at his death is as follows:
(1) Miranda Catherine Freeman
(2) Mary Edna Hay
(3) Grace Magdalene Stackley
(4) Frances Darlene Rosier
(5) Anna Laura Cherryholmes
(6) Albert Tolliver Freeman
(7) Bonnie Ellen Forristall
(8) Nellie May Hanson
(9) Sarah Margaret Freeman
(10)Alice Freeman
Delilah Isabelle Stackley is living.
“9. That the Estate of B. T. Freeman was administered in the Probate Court of Butler County, Kansas, as Case No. 5108, and that the Journal Entry of Final Settlement thereon was dated February 16, 1935, and duly filed in said probate court proceeding, and that the Order of the Inheritance Tax Commission of the State of Kansas, being “General Form 25” was also duly filed in said case. That copies of both documents are attached hereto and made a part hereof. That the Inheritance Tax Commission form “General Form 25”, a partial copy of which is attached hereto, contains an overflap entitled “Schedule A” and that said overflap overlays Item 5 of said form which reads as follows:
‘5. The decedent died testate —’
and designates those persons listed on “Schedule A” as the devisees and legatees under the will of the decedent.
“10. That the Last Will and Testament of B. T. Freeman was duly admitted to probate in Case No. 5108 of the Probate Court of Butler County, Kansas, and that a true copy of said Last Will and Testament is attached hereto and made a part hereof.
“11. That upon the death of Alice Lee Freeman on July 4, 1980, the life tenancy usage of the subject matter of this action terminated and the remainder-men established under the Last Will and Testament of B. T. Freeman became entitled to possession of their respective interests in said subject matter.
“12. That the within partition action was filed August 26, 1980, and that service of process has been had upon all parties defendant and all persons having or claiming an interest in the subject matter hereof, and that Floyd Forristall, Irwin Hanson, and James T. Cherryholmes, have additionally entered their general appearance herein.
“13. That the subject matter of the within partition action is:
A. The SE/4, Sec. 23, Township 24 South, Range 5 East, Butler County, Kansas;
B. The SW/4, Sec. 23, Township 24 South, Range 5 East, Butler County, Kansas;
C. The SW/4, Sec, 24, Township 24 South, Range 5 East, Butler County, Kansas;
D. 5 acres on the East side of the SE/4 of the SE/4, Sec. 22, Township 24 South, Range 5 East, Butler County, Kansas;
and that parcel D may require more precise description by survey or agreement with the adjoining land owner.
“14. That this court has jurisdiction of the subject matter and of the parties necessary to make a determination of ownership and that this matter is properly before the court.”
The will of B. T. Freeman devised a life estate in the farm to his daughters Miranda Catherine Freeman and Alice Freeman. The will provided that in the event of marriage of either life tenant, the life interest in the farm would remain in the other tenant. Further, the will provided:
“And the life interest of both of my said daughters having terminated by marriage, the said farm shall become and be the property of my children, share and share alike, namely: Miranda Catherine Freeman, Alice Freeman, Bonnie Freeman Forrestall [sic], Nellie Freeman Hanson, Annie Freeman Cherryholmes, Grace Freeman, Frances Freeman, Enda [sic] Freeman, Sarah Freeman, Delilah Freeman Stackley, and Albert Freeman. In the event of the death of either of my said children above named prior to the expiration of the life interest of my said daughters, Miranda Catherine and Alice, the share of such child or children so dying shall descend to, become and be the property of the then living issue of their body, and in the event of their dying without issue, the share of such child or children so dying shall descend to, become and be the property of my children then living, share and share alike.”
The court interpreted the will so that the word “children” as used in the clause “my children then living” also includes, per stirpes, the grandchildren of B. T. Freeman if they are children of a deceased child of B. T. Freeman who died prior to the termination of the life estates established in the will.
The court held that the remainder interests in the farm vested in the remaindermen upon the death of B. T. Freeman and that the share of any child of B. T. Freeman who later died without issue descended upon said death to the heirs of B. T. Freeman, per stirpes. The court found that the intent of B. T. Freeman was to have the share of any child of his who died without issue pass per stirpes to the children or grandchildren of B. T. Freeman exclusive of spouses of any deceased child of B. T. Freeman.
The court determined the interests of the parties to be as follows:
Miranda* Alice* Mary Edna# Grace Frances#
Life Est. to 10/19/51 Life Est. to 7/4/80 -0-1/6 * Ernest 1/12 Leland 1/12 -0-
Anna 1/6 James 1/12 Clifford 1/12°” Albert i 1/6 ‡ Freda 1/18 Arlene 1/18 Pat 1/18 Bonnie 1/6 V Floyd 1/24 John 1/24 Hope 1/24 Philena 1/24 Nellie i 1/6 >k Nathan 1/18 Irwin 1/18 Hugh 1/18
Sarah# Delilah -0- 1/6
* Life Tenant
# Died Without Issue
00 Clifford conveyed interest to M. Candice Cox (1/36), Nancy K. Dain (1/36), and John T. Cherryholmes (1/36).
Delilah Stackley, appellant, brings this appeal from said interpretation.
The basic argument is over what happened to the shares of the children who died without issue. Appellant maintains that upon the death of each child who died without issue, their remainder interest passed to B. T. Freeman’s other children who were living at the time of the death of said child, thus preventing that share from passing to the issue of B. T. Freeman’s children who had died prior to the children dying without issue.
Appellant contends the court erred in giving res judicata effect to a previous statement on an inheritance tax form.
The trial court took judicial notice of the probate court case of B. T. Freeman and stated that it was without power to disturb the findings of the probate court made therein, as were made manifest in the order of the Kansas Inheritance Tax Commission. The order stated that the devisees and legatees were the two life estates in Miranda and Alice, and the remainder in the children of B. T. Freeman, share and share alike. Appellant’s argument of error is based on the assumption that the court used said statement in deciding the distribution.
Regardless of the statement, it is obvious the probate order and the inheritance tax statement were not the basis for the trial court’s distribution. While the court took judicial notice of the proceedings, the distribution was based upon interpretation of the last will and testament of B. T. Freeman, itself, and not on the statement in the Inheritance Tax Commission order. The court made this clear in the following parts of its journal entry:
“That the court adopts the following rule of law as being applicable to the interpretation of the Last Will and Testament of B. T. Freeman, as said rule of law is stated and approved in Jameson, et al., v. Best, et al., 124 Kan. 633, 636:
“ ‘The heirs of a testator are favored by the policy of the law and cannot be disinherited upon mere conjecture, and when the testator intends to disinherit them he must indicate that intention clearly, either by express words or by necessary implication. ... A necessary implication is one which results from so strong a probability of intention that an intention contrary to that imputed to the testator cannot be supposed . . . Instead the law favors that construction of a will which conforms most nearly to the general law of inheritance. Accordingly if a will is capable of two constructions, one of which will exclude the issue of a deceased child, and the other permit such issue to participate in a remainder limited upon a life estate given to the ancestor, the latter construction is to be adopted.’ (28 R.C.L. 229, 230)
“[T]he court specifically finding that the intent of B. T. Freeman was to have the share of any child of his who died without issue pass per stirpes to the children or grandchildren of B. T. Freeman exclusive of spouses of any deceased child of B. T. Freeman.”
Appellant also claims the court erred in interpreting the will so that it found that the testator intended “children of the testator then living” to include issue of predeceased children of the testator.
As stated earlier, the problem with interpretation of this will is the provision that the share of children dying without issue descends to “children then living, share and share alike.”
The general rules of construction are as follows:
“The primary function of the court in the interpretation of wills is to ascertain the testator’s intent as derived from the four corners of the will and, once ascertained, the intent will be executed unless contrary to law or public policy. In re Estate of Cline, 170 Kan. 496, 227 P.2d 157 (1951).
“In Johnston v. Gibson, 184 Kan. 109, 334 P.2d 348 (1959), we held:
“ ‘Where a court, either trial or appellate, is called upon to determine the force and effect to be given the terms of a will, its first duty is to survey the instrument in its entirety and ascertain whether its language is so indefinite and uncertain as to require the employment of rules of judicial construction to determine its force and effect; and where from an analysis of the entire instrument no ambiguity or uncertainty is to be found in its language, the intention of the testator being clearly and unequivocally expressed, there is no occasion to employ rules of judicial construction and the will must be enforced in accordance with its terms and provisions.’ Syl. 3
“The rules of construction were summarized in In re Estate of Ellertson, 157 Kan. 492, 142 P.2d 724 (1943):
“ ‘There is no occasion for employing any rules of judicial construction where the intention is expressed clearly and unequivocally in the will (National Life Ins. Co. v. Watson, 141 Kan. 903, 905, 44 P.2d 269). The will is to be construed so as to give effect to every part thereof, providing an effect can be given to it which appears to be consistent with the purposes of the testator as gathered from the entire will, and to effectuate rather than defeat the intention of the testator. (Ernst v. Foster, 58 Kan. 438, 49 Pac. 527; Selzer v. Selzer, 146 Kan. 273, 69 P.2d 708.) Controlling significance is not to be given to one of the terms of devise or bequest and other terms ignored. (Johnson v. Muller, 149 Kan. 128, 86 P.2d 569.) The court must put itself as nearly as possible in the situation of the testator at the time he made the will and from a consideration thereof and the language used in every part of the will, determined the purposes and intentions of the testator (Dyal v. Brunt, 155 Kan. 141, 123 P.2d 177). All of the above rules are only phases of the fundamental rule that the intention of the testator is to be gathered from the will as a whole and that intent must prevail if it is consistent with the rules of law (Zabel v. Stewart, 153 Kan. 272, 109 P.2d 177). The above cases are illustrative. Many other of like effect might be cited. It is also to be borne in mind that a will speaks from the time of the testator’s death, unless it plainly shows a contrary intention, and is to be construed as operating according to conditions then existing. . . .’ pp. 496-497.
“We elaborated upon these rules in Russell v. Estate of Russell, 216 Kan. 730, 534 P.2d 261 (1975):
“ ‘In construing a will courts must (a) arrive at the intention of the testator from an examination of the whole instrument, if consistent with rules of law, giving every single provision thereof a practicable operative effect, (b) uphold it if possible, (c) avoid any interpretation resulting in intestacy when possible, (d) give supreme importance to the intention of the testator, and (e) when the language found in such instrument is clearly and unequivocally expressed determine the intent and purpose of the testator without resort to rules of judicial construction applicable to the interpretation of an instrument which is uncertain, indefinite and ambiguous in its terms.’ Syl. 1.
“See also In re Estate of Wernet, 226 Kan. 97, 596 P.2d 137 (1979).” In re Estate of Berryman, 226 Kan. 116, 118-9, 596 P.2d 1120 (1979).
In Schauf v. Thomas, 209 Kan. 592, 599, 498 P.2d 256 (1972), it is stated:
“Where there are definite and unambiguous expressions in a will, other expressions that are capable of more than one meaning must be construed, if possible, so as to harmonize them with the plain provisions. To ascertain the intention of the testator and the extent and character of the bequests and devises of his will, all provisions of the will must be read and construed together, and one provision must not be given controlling significance by ignoring other provisions of the will. [Citation omitted.]”
Also, “The law presumes that a testatrix intends to treat her children equally when the meaning of the will is doubtful or obscure.” 209 Kan. at 600.
The Supreme Court, in In re Estate of Lester, 191 Kan. 83, 87, 379 P.2d 275 (1963), stated:
“[0]ther things being equal, there is a presumption against any intention on the part of a testator to disinherit his legal heirs who are favored by the policy of the law and may not be disinherited by mere conjecture. When a testator intends to disinherit those who would take under the statutes of descent he must indicate that intention clearly by plain words, express devise to others, or necessary implication. By ‘necessary’ implication is meant one which results from so strong a probability as to the testator’s meaning that an intent contrary to that imputed cannot be supposed. The presumption against disinheritance is recognized especially in the absence of unfriendly relations existing between the testator and his descendants. [Citations omitted.]”
Appellant’s interpretation states that as each child dies without issue, that share passes to the remaining children of B. T. Freeman who are alive at the time of the death of said child.
The trial court’s interpretation looks to who is living at the termination of the life estate and passes the shares of the children dying without issue to the remaining children and grandchildren of B. T. Freeman living at the termination of said life estate. This divides the shares equally among the remaining interests whereas appellant’s interpretation gives the last to die the biggest shares. Under appellant’s interpretation, the issue of the earliest of B. T. Freeman’s children to die lose part of the inheritance; if any of those children subsequently die without issue, the inheritance bypasses them and passes only to those children of B. T. Freeman who are alive.
The provision regarding the passage of the shares of children without issue is ambiguous in two respects.
First, the phrase “children then living” is ambiguous because it is not clear when “then” refers to; viz., whether one looks to the time of the successive deaths of each child without an heir, or at the death of the last life tenant.
Secondly, under the previous phrase, the share of each of B. T. Freeman’s children is to pass to their issue if they die prior to the expiration of the life interest. It is difficult to harmonize the two phrases unless “children” is interpreted to mean children and grandchildren.
We have found two cases in Kansas where the word “children” was held to include “grandchildren.”
In In re Estate of Works, 168 Kan. 539, 213 P.2d 998 (1950), a will devised real estate to the testator’s five children. The will further provided:
“ ‘The above bequests and gifts of my real estate are made to my children heretofore named upon the condition that they and each of them shall hold the same during their lifetime, and at the death of any one of them the real estate herein bequeathed and devised shall descend to their legitimate children. And in case any one or more of the children above named, should die without legitimate issue, then the share above given and devised to such childless devisee shall descend to and become the property of their brothers and sisters, children of mine who shall survive, share and share alike.’ ” p. 540.
In Works, when the testator died, all of his children were living. At the time of the testator’s death, his son Charles had two living children, Warren and Clark. Clark, however, predeceased his father Charles, but had three children, Charles, Paul and Mary Ella. The issue was whether Warren, the one living child of Charles, received the entire remainder in the land, or whether Warren took only one-half of the remainder and the three children of Clark took the other half. The court held that Warren took one-half and the three children of Clark took the other half, even though Clark predeceased Charles, the son of the testator.
The court stated:
“ ‘Although the word “children” is not ordinarily construed to include grandchildren, it is properly construed to include grandchildren when the context, or the surrounding facts and circumstances, in case of ambiguity, make it clear that the grantor so intended.
“ ‘If there appears to be a doubt or uncertainty as to the grantor’s intention in using the word “children” there is a reasonable presumption against disinheritance of a grandchild whose parent is dead.’ ” 168 Kan. at 543-4, citing from Bennett v. Humphreys, 159 Kan. 416, Syl. ¶¶ 6, 7, 155 P.2d 431 (1945).
In Bennett v. Humphreys, 159 Kan. 416, 417, 155 P.2d 431 (1945), land was deeded to John Bell Bennett. The deed stated, in part:
“ ‘It is part of consideration of this deed that John Bell Bennett cannot sell this property during his life time and at his death is to be divided equally among his children.’ ”
At the time of the death of the life tenant, John Bennett, there was only one child living. However, another child had predeceased the life tenant, leaving a grandchild. The court held that the grandchild and the child took equally, citing the above rule.
Since certain terms of decedent’s last will are ambiguous, it seems clear to us that the trial court attempted an interpretation of that will which it felt would reflect the intent of the decedent. Based upon Jameson v. Best, 124 Kan. 633, 261 Pac. 582 (1927), and Bennett v. Humphreys, 159 Kan. 416, we conclude the trial court was correct.
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Bullock, J.:
This appeal arises from an action in which Florence Wasson recovered for personal injuries which she sustained from a broken Pepsi-Cola bottle while shopping in Brewer’s Food Mart. At the jury trial below only Mrs. Wasson presented evidence, Brewer’s and Pepsi electing to stand on their unsuccessful motions for directed verdict. The jury found plaintiff’s damages to be $86,000.00 and fixed the comparative degree of negligence at: Plaintiff, 22%; Brewer’s, 64%; and Pepsi, 14%. Both Brewer’s and Pepsi filed post-trial motions for a new trial or in the alternative for judgment notwithstanding the verdict. All motions were denied and appeal to this court was duly perfected.
On appeal, both Brewer’s and Pepsi contend the trial court erred in not directing a verdict in their favor and, in addition, Pepsi contends the action against it was barred because the amended petition joining Pepsi as a defendant was not served on Pepsi until after the applicable statute of limitations had run. Inasmuch as we concur in the contention of Brewer’s and the first contention of Pepsi, it will not be necessary for us to address Pepsi’s second issue.
Mrs. Wasson was injured in Brewer’s Food Mart on Sunday, November 9, 1975. Brewer’s Food Mart is a typical self-service grocery store located in Bonner Springs, Kansas. On the day of the accident, Mrs. Wasson had driven alone to Brewer’s, a store with which she was quite familiar. On this particular day, Brewer’s was running a special on Pepsi-Cola and Mrs. Wasson had gone to the store to purchase some.
Upon reaching the pop section, Mrs. Wasson selected an eight-pack carton of regular Pepsi-Cola and put it in her shopping cart. She then pushed her cart a few feet up to the Diet Pepsi section in order to make a selection from that section for her husband. It was her intention to extract three bottles out of the regular Pepsi pack and replace them with the same number of Diet Pepsi bottles. Mrs. Wasson testified that the floor in the pop display area was free from broken bottles or glass, that she noticed no cartons which were stacked in a crowded or disheveled manner and that she saw nothing which alerted her to any kind of potential danger.
Mrs. Wasson walked up to the Diet Pepsi display and pulled a bottle out of a carton which was the top carton on a stack. As she began to pull out a Diet Pepsi, she sensed that bottles were falling to her right. She contemplated stopping the fall of the bottles, but decided to merely turn and get out of the way. She was not able to see exactly how many bottles or cartons actually fell. At least one of the bottles hit the floor and burst and one of the pieces hit Mrs. Wasson’s foot, causing it to bleed.
Mrs. Wasson candidly admitted that she did not see what happened to make the bottles fall, that she does not know the cause of the accident, and that the accident easily could have been the result of something another customer may have done to the stack of bottles shortly before she came along. No other person witnessed the accident. Individuals who arrived at the scene soon after the incident included Mary Ann Bates and Bruce Wasson, plaintiff’s husband. Bates testified that she saw one carton of pop on the floor. Also, she remembered plaintiff saying, “If I didn’t have to switch that pop, wouldn’t have to get the pop, the carton wouldn’t have fallen.” Bruce Wasson testified that he saw two cartons of bottles on the floor, which weren’t completely full. Some of the bottles had broken and some had not. When Robert Thompson, Sr., assistant store manager, arrived at the location of the accident, he saw one or two broken bottles and one carton on the floor. The Pepsi display appeared normal, but was not fully stocked.
Thompson was in charge of the store on the Sunday in question. As plaintiff’s witness, he supplied the following uncontroverted additional information. At the time of the accident there were three pop companies which made deliveries to the store, Pepsi-Cola, Coca Cola and Seven-Up. When the respective pop companies made their deliveries, each driver cared for his company’s section of the display. Pepsi-Cola made deliveries to the store every Monday and Friday. At the time of Mrs. Wasson’s injury, no one from Pepsi had been in the store for two days.
The Pepsi display was restocked by store employees on Saturday, the day before the accident. Still, the display was again depleted by the time of the incident Sunday afternoon inasmuch as there had been a large number of customers through the store on that weekend — about three hundred on Sunday alone. Seven-Up likewise made deliveries on Friday, and their employees could have restocked or changed the Pepsi display after Pepsi’s delivery on that same day. Thompson and other store employees routinely checked the pop display from time to time, and, if the Pepsi delivery man had stacked the display incorrectly in some manner on Friday, it would have been caught by somebody at the store on the day of the delivery, two days before the accident.
Brewer’s customers have been known to take bottles out of cartons and not replace them; lay bottles loose on top of cartons; replace cartons without pulling the mylar divider back out; and set cartons back down on top of the mylar roll, thereby tilting the carton towards the aisle. However, Thompson stated he knew of no instance where bottles had fallen when there wasn’t some person close by who had caused the fall.
The shelving in use at the time of the accident was originally purchased from and installed by Associated Grocers Division. It was the same type of shelving generally used by other grocery stores in the area. The shelves were permanently affixed to the back wall of the display and tilted towards the back. The open cartons were stacked four deep and three or four high, and between each row or layer there were mylar plastic dividers. Each mylar sheet was permanently fastened to the back of the display with three or four metal screws. The mylar dividers added stability to the shelving because the rolled up portion exerts force on the front of the carton tending to hold the carton in place. These dividers had been in use at Brewer’s and elsewhere since the late 1960’s and each pop company furnished its own. In 1980, Pepsi-Cola put in the display presently located in the store, the former display being then removed and disposed of.
The foregoing summary contains all relevant evidence found in the record concerning the events surrounding Mrs. Wasson’s injury. The only other evidence bearing on the issue of liability is the testimony of Donald Dressier, a consulting engineer, called by plaintiff to testify as an expert. Dressier is engaged in a general engineering practice, consulting in the areas of blasting, electrical engineering, civil engineering, mechanical engineering, safety engineering, construction defects and fire investigation, which practice he conducts out of his home in Leawood, Kansas. In relating his professional background, Dressier described his experiences with glass and stacking materials while employed in various industries, but stated that he has never been employed in the bottling industry, shelving industry, or carbonated beverage industry.
Dressier inspected the shelving which was used at Brewer’s Market in January, 1980, at the request of plaintiff’s counsel, but has never seen the shelving which was in place at the time of the incident. Dressier stated that the pop he viewed in 1980 was not stacked “properly.” He testified that Brewer’s shelves were not tilted back quite far enough, although he did not measure the tilt, did not know what the tilt was on the shelves in 1975 and does not know the optimum degree of slope for shelves of this type. He conducted no experiments or tests concerning the sloping of shelves. Mr. Dressier also opined that a rubber floor mat could have been placed on the floor to reduce the risk of breakage and that vertical partitions in the display would have provided more lateral support. He admitted, however, that he has done no testing to see what the effect of implementing those suggestions would be but testified he “certainly would like to do that,” conceding that this is something that remains yet to be tested. The main problem concerning stability in displaying pop, however, according to Dressier, is front to back movement, rather than lateral stability.
Dressier next stated that tiering (cross-laying one stack over the other) could increase stability. Concerning the mylar dividers, Dressier testified that such dividers were almost universally used in 1975. He further stated that mylar does no harm in the stacking procedure. In his opinion, mylar does provide a slight amount of stability. Dressler’s opinions concerning the mylar dividers were based upon some “very rudimentary tests” at local neighborhood stores, but there was no testimony as to the nature of those tests or experiments, or the conditions under which they were performed.
At the close of the evidence, Mrs. Wasson sought instructions on theories of (1) negligence; (2) strict products liability; and (3) res ipsa loquitur. The trial court rejected all save the contentions sounding in negligence. Inasmuch as no cross-appeal has been filed, questions concerning strict liability and res ipsa loquitur are no longer open to review. We turn then to the specific allegations of negligence, contained in the trial court’s Instruction No. 15:
“15. The plaintiff, Florence Lee Wasson, claims that she sustained injuries and damages due to the fault of both defendants.
“She claims that defendant Brewer’s Food Mart, Inc., was at fault in one or more of the following particulars:
“1. In stacking and maintaining unstable pop cartons;
“2. In utilizing improperly designed shelving for the display and sale of said pop cartons and their contents;
“3. In failing to warn plaintiff of a hazardous condition created by the acts set out in paragraphs 1 and 2 immediately preceding.
“She further claims that defendant Pepsi-Cola General Bottler’s, Inc., was at fault in one or more of the following particulars:
“1. In the design, manufacture and sale of unstable pop cartons;
“2. In utilizing improperly designed shelving for the display and sale of their pop cartons and their contents;
“3. In stacking and maintaining for display and sale unstable pop cartons and their contents;
“4. In utilizing glass bottles as containers for carbonated pop beverages, thereby posing an explosive hazard to the public.
“5. In failing to warn plaintiff of a hazardous condition created by the acts set out in paragraphs 1, 2, 3, and 4, immediately preceding.
“The plaintiff has the burden to prove that her claims are more probably true than not true.”
The scope of this court’s review of the failure to grant a directed verdict was defined in Simpson v. Davis, 219 Kan. 584, Syl. ¶ 3, 549 P.2d 950 (1976):
“In ruling on a motion for a directed verdict pursuant to K.S.A. 60-250, the court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought, and where the evidence is such that reasonable minds could reach different conclusions thereon, the motion must be denied and the matter submitted to the jury. The same basic rule governs appellate review of a motion for a directed verdict.”
With respect to reviewing the sufficiency of the evidence to support a jury verdict, the function of Kansas appellate courts is limited to determining whether or not the verdict is supported by substantial competent evidence. Kleibrink v. Missouri-Kansas-Texas Railroad Co., 224 Kan. 437, 440, 581 P.2d 372 (1978). The term “substantial evidence” has been defined as “evidence which possesses something of substance and relevant consequence and which furnishes a substantial basis of fact from which the issues tendered can reasonably be resolved.” Delight Wholesale Co. v. City of Prairie Village, 208 Kan. 246, 249, 491 P.2d 910 (1971).
Giving Mrs. Wasson the benefit of every permissible inference, as we are bound to do, however, we do not find substantial competent evidence supporting this verdict in the record before us. The fatal flaw in the proof, as we view it, lies in Mrs. Wasson’s absolute failure either to demonstrate any negligence on the part of Brewer’s or Pepsi or that any conduct of theirs caused the fall of the bottle which injured her. Although Mrs. Wasson accuses Brewer’s and Pepsi of various acts of alleged negligence, none are supported by evidence. Perhaps more importantly, negligence, even if present, is never actionable unless it is also shown to be the cause of the claimed injury.
Clearly, Mrs. Wasson does not know why the bottle fell. From the statement made by Mrs. Wasson to Mary Ann Bates, unchallenged in the record, one might even infer Mrs. Wasson was herself the causal agent. Likewise, Mrs. Wasson’s expert sheds no light on this dark question of causation. Although he speculates on several designs and practices which may have “helped” the stability of the Pepsi display, there is no evidence that instability of the display caused the offending bottle’s fall. Dressler’s “absent rubber mat” theory was not submitted to the jury as an item of negligence, and in the absence of cross-appeal, we must ignore it. The suggestion that the use of glass bottles, per se, constitutes negligence needs little comment. Our law has long been to the contrary. Rowell v. City of Wichita, 162 Kan. 294, 176 P.2d 590 (1947).
Finally, we look to the allegation of “failure to warn.” Of what did Mrs. Wasson wish to be warned? That glass, when dropped or knocked to a hard surface will break? More importantly, how would that have prevented this accident? When Mrs. Wasson viewed the display prior to the accident she saw nothing amiss. We fail to comprehend what anyone else would have seen or known that she did not see and know from her common knowledge and, thus, we conclude warnings were unnecessary.
That someone, after an accident, can think of things which, if done, might have made the accident less likely, does not constitute proof of negligence. See, for example, Garst v. General Motors Corporation, 207 Kan. 2, 21, 484 P.2d 47 (1971), where our high court commented:
“Negligence is not proved merely because someone later demonstrates that there would have been a better way. Reasonable care does not require prescience nor is it measured with the benefit of hindsight.”
Again, we note, negligence in the abstract is never actionable. Actionable negligence is that which causes harm. In the absence of any proof of negligence or cause, an inference of both amounts to nothing more than impermissible speculation and conjecture. Although we hold jury verdicts in highest esteem, such verdicts must always be founded upon evidence and not upon speculation and conjecture. When they are not founded upon evidence, they cannot stand. We find no Kansas cases similar to the one at bar. Several other states have considered the matter, however, with virtually identical results. Wiebel v. Mid-Continent Bottlers, Inc., 70 Ill. App. 3d 224, 388 N.E.2d 475 (1979), arose on essentially the same facts as those presented in the instant case. In Wiebel, the plaintiff, Mrs. Wiebel, was shopping for groceries and soda pop at a national food store in Rock Island, Illinois. Only the defendants and the location are different from the instant case, as evidenced by Justice Barry’s review of the evidence there:
“Mrs. Wiebel testified that upon coming to the pop display, she picked up a six-pack of Pepsi-Cola and placed it in her shopping cart. She then reached for a six-pack of Dr. Pepper, which she testified was located at shoulder height (approximately 414 feet). As she reached for the Dr. Pepper, out of her left eye she noticed that two feet away at eye level a single clear bottle was teetering or ‘jiggling’ and was about to fall. She stepped back to get out of the way of the falling bottle. She then clasped her leg and discovered that she had been cut.
“Because there were no eyewitnesses to Mrs. Wiebel’s accident, the plaintiff was the only one who testified to the immediate events leading up to her injury. On cross-examination, Mrs. Wiebel testified that on the day of the accident her recollection was that there was no disarray in the section of the display where the six packs were stacked, that there was nothing unusual about the way in which the pop was stored or shelved, and that the shelves appeared normal. Mrs. Wiebel further testified on cross-examination that not only did she not see any identifying mark on the bottle that fell, but she also did not know whether the bottle she saw teetering actually fell, and in fact did not know what cut her leg.” 70 Ill. App. 3d at 225.
At the close of the evidence, the trial court granted the defendants’ motions for directed verdicts on the ground that as a matter of law, there was no proof that either defendant was guilty of negligence which proximately caused the injury complained of by the plaintiff. On appeal, the lower court’s ruling was affirmed.
Bahe v. Safeway Stores, Inc., 186 Neb. 228, 182 N.W.2d 202 (1970), is also remarkably similar. In that case:
“Plaintiff testified the pop was stacked on a gondola in the usual manner, and she observed nothing unusual about the pop stand. She does not know whether the bottle which struck her was from the carton she reached over or not. She has no idea where the bottle came from, how it fell, or how the broken glass got on the floor. There is no dispute the broken bottle was a 16-ounce Coca-Cola bottle. The Coca-Cola cartons are stacked on the gondola by a representative of the Coca-Cola company. The pop was kept in normal 6-pack cartons stacked one on top of the other, with a plastic flap as a divider between each tier of cartons. They are stacked three or four cartons high. Pop had been stacked in substantially the same manner in this store for at least 7 years. No regular inspection is made of the pop shelves, but every time an employee passes it if necessary he straightens it up, although most of the time the pop remains where the deliveryman puts it.
“Defendant’s manager testified that bottles do not fall off the shelves, but they do occasionally get knocked off. Plaintiff’s son, who had worked in a Safeway store in O’Neill, Nebraska, testified that pop was stacked in the same manner there, and it was his observation that it could become wobbly and unstable. This at best is a far cry from evidence that a condition existed which involved an unusual risk for the plaintiff sufficient to impose liability on Safeway.
“Plaintiff agrees that this is not a res ipsa loquitur situation, and we are directed to no specific evidence from which we can infer negligence on the part of Safeway. The burden is upon the plaintiff to prove that the condition which resulted in the falling object involved an unreasonable risk of harm to her as an invitee. She was alone in the aisle at the time of the occurrence. She did not observe anything unusual about the pop gondola. She had taken two cartons from the gondola without incident. She was not struck until after she had reached over another carton and removed a bottle of orange pop from the carton behind it. She has no idea as to what happened except that a falling bottle struck her foot. If there had been anything unusual about the pop stand, or if there had been loose bottles or cartons which appeared like they were going to fall, it would seem reasonable that the plaintiff would have noticed this fact, but she testified that she observed nothing unusual. It is not possible to infer from this evidence the existence of an unreasonable risk of harm to the plaintiff, and if we could assume one existed, that Safeway knew of or in the exercise of reasonable care could have discovered it.
“Further, there is no competent evidence to show what condition, if any, caused the accident. Plaintiff did produce a witness who a year before had been struck by a falling bottle, but this witness did not know why the bottle fell although she did not think -she knocked it off with her hand. Safeway’s manager testified that occasionally customers do knock bottles from the shelves with coat sleeves or otherwise, but no one would contend that a storekeeper must follow all customers around the store to be certain they do not knock merchandise from the shelves. It is the storekeeper’s responsibility to exercise due care to see that the merchandise is stacked in a reasonably safe manner on his shelves, and where a storekeeper or his employees know of a dangerous condition, or if it has existed for such a period of time that they should know of it, then liability attaches.
“The testimony of plaintiff’s son is obviously intended to suggest that pop gondolas can become unstable; that this situation must have been present in the instant case because plaintiff does not know what happened; and that Safeway, having a duty to exercise reasonable care, failed to discover the instability. The difficulty with this line of reasoning is that there is absolutely no evidence that the pop gondola was unstable, unless we infer that fact from the falling of the bottle of Coca-Cola. To do so would require the highest degree of speculation. It is certainly more logical to believe that some act of the plaintiff, who was alone at the pop gondola on the occasion in question, was the cause of the accident. In any event, this not being a res ipsa loquitur situation, it was the responsibility of the plaintiff to prove by a preponderance of the evidence that some negligence on the part of Safeway was the proximate cause of her injury. This she has not done.” 186 Neb. at 229-232. Emphasis added.
In Metzel v. Canada Dry Corporation, 125 Ga. App. 460, 188 S.E.2d 175 (1972), a grocery store patron was also injured by a falling bottle. As in the instant case, there was no evidence presented to account for how the bottle fell. The court upheld the directed verdict, stating:
“In the face of clear evidence that countless people had access to the display and that customers were constantly shifting bottles around, sending the issue to the jury would allow it to engage in the sheerest speculation.” 125 Ga. App. at 461.
In Johnson v. Ins. Co. of North America, 360 So. 2d 818 (La. 1978), the plaintiff was injured by a falling can as she shopped at a store:
“As she reached toward an upper shelf to get a small can of juice, three large cans of fruit juice fell from a bottom shelf, two of which struck her leg and caused her present injuries. The incident occurred at a section of the supermarket where canned jucies were displayed on open shelving in three tiers. The cans had been removed from boxes and stacked on top of each other on the shelves. Mrs. Johnson testified that she did not notice before the accident how the cans were stacked, but after the accident she did notice that the cans were in disarray.” 360 So.2d at 819.
The court stated that:
“While there was some testimony to the effect that if cans were badly stacked they would create a dangerous condition, and the store operator admitted that customers did occasionally move cans from shelf to shelf, there was absolutely no testimony that before the accident in question the juice cans were in disarray or protruding over the shelf edge. The fact that after the accident the cans were disarranged, with three cans on the floor, does not constitute evidence that the cans were in that condition before the accident.” 360 So. 2d at 820.
The Court of Appeals of New Mexico was faced with a case highly similar to the one before us in Rekart v. Safeway Stores, Inc., 81 N.M. 491, 468 P.2d 892 (Ct. App. 1970), and held that where no one knows how the accident happened, it is improper to infer negligence. In that case:
“Plaintiff was reaching for a carton of Dr. Pepper when the Pepsi Cola bottle fell. She had not touched any of the soft drink display. She knows the bottle fell from her right but from where, or how far it fell, she does not know. She has no idea what caused the bottle to fall. There was nothing to indicate the accident would happen. There was no one close by; there was no rumbling or shaking of the walls. There were no witnesses. The people she identified as possibly knowing something about the accident were deposed. Their depositions reveal nothing as to the cause. None of the deponents, including plaintiff, gave any testimony as to the condition of the display on the day of the accident. The affidavit went to the customary use of different types of shelving in the area.
“Specifically there is no permissible connection either with a pattern of conduct or with the lack of certain shelving and the bottle that fell and cut the plaintiff. Here we have no evidence that a messy condition existed at the time of the accident. [Citations omitted.] If such a condition existed it must be inferred. For a messy condition to have been the cause for the bottle falling we must put inference on inference. This we may not do. [Citations omitted.]” 81 N.M. at 493.
The Kansas rule pertaining to inferences is identical. Farmers Ins. Co. v. Smith, 219 Kan. 680, 549 P.2d 1026 (1976).
Finally, brief reference should be made to Bodenheimer v. Food Stores, 255 N.C. 743, 122 S.E.2d 715 (1961), a case which again involves the unexplained falling bottle situation. In this per curiam opinion, the court stated:
“The plaintiff failed to present any evidence from which actionable negligence against either defendant may be inferred. She and no one else was at the display rack at the time the bottle fell. Where it came from she does not know. She did not see any loose bottles about the rack. If she could not see it, there is nothing to indicate the management was negligent in failing to discover it.” 255 N.C. at 744.
The gravamen of all of these cases is that where there is no competent evidence pointing to the cause of the accident, a directed verdict should be entered for the defendants.
In conclusion, we note that even Mrs. Wasson’s counsel was required to admit she had failed to prove what caused the accident that led to her injury. At the close of all the evidence, in arguments pertaining to instructions, he said:
“Mr. Belot in his argument to the court on his motion for directed verdict, I think, stated the issue appropriately that the cause or causes of the incident itself, that is the falling of the bottles, has never been appropriately explained. Mrs. Wasson was the only witness to it and even she doesn’t know what happened in the end.”
We concur. Without proof of cause, there is no connection between the injury and the fault, if any there be, of anyone. Tort recovery in negligence is premised on causal fault. Finding none proved, we have no choice but to reverse the judgment entered herein and direct the entry of judgment for Brewer’s and Pepsi for their costs.
Reversed. | [
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Per Curiam.:
This appeal is from judgment of conviction under K.S.A. 41-2615, consumption of alcoholic liquor by a minor while in or on premises licensed under the provisions of K.S.A. 41-2601 et seq.
Defendant argues that because the drink which had been served the minor contained less than 3.2 percent alcohol by weight, it was not “alcoholic liquor” which had been consumed on the premises, and the court should have so found.
The term “alcoholic liquor” is defined by K.S.A. 1980 Supp. 41-102(2). The definition excludes beer or cereal malt beverage containing not more than 3.2 percent alcohol by weight. Defendant suggests therefore that anything containing a lesser amount of alcohol does not fit the definition. We do not agree, for clearly every liquid containing alcohol of whatever measurable amount, capable of being consumed by a human being, exclusive of beer or cereal malt beverage containing not more than 3.2 percent alcohol by weight, is “alcoholic liquor” as defined by and referred to in the Kansas Liquor Control Act.
From our review of the record in this case, we find the judgment of the trial court to be supported by substantial competent evidence. Other issues specified by defendant have been considered and are found to be without merit.
Affirmed. | [
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|
Swinehart, J.:
This is an appeal by defendants from the judgment of the District Court of Coffey County finding them guilty of violating motor vehicle registration statutes K.S.A. 1981 Supp. 8-127 and 8-142.
Defendants have raised the following issues: (1) Is the defendants’ concrete pump/boom truck a “self-propelled crane” and therefore exempt from the motor vehicle registration requirement pursuant to K.S.A. 1981 Supp. 8-128? (2) Is defendants’ concrete pump/boom truck “road machinery” and therefore exempt from the motor vehicle registration requirement pursuant to K.S.A. 1981 Supp. 8-128? (3) Is K.S.A. 1981 Supp. 8-128 void for vague ness and therefore unconstitutional? (4) Does good faith reliance upon an “official” interpretation of K.S.A. 1981 Supp. 8-128 provide a defense under K.S.A. 21-3203 to a criminal charge of failure to register a motor vehicle?
Defendants William R. Groves, William A. Cummings, and Michael D. Booth were driving Schwing concrete pump/boom trucks (hereafter referred to as concrete pump) owned by their employer, defendant Concrete Placement, Inc., of Kansas City, Kansas, on U. S. Highway 75 in Coffey County, Kansas, on October 15,1979, July 9, 1980, and July 20, 1980, without Kansas vehicle registration. Defendants were stopped and charged with violating K.S.A. 1981 Supp. 8-142 First and K.S.A. 1981 Supp. 8-127(a).
Trial was had to the district magistrate court. In a memorandum decision, the district magistrate judge found (1) that the motor vehicle registration statutes, K.S.A. 1981 Supp. 8-126 through 8-128 and 8-142, are not so vague as to render them unconstitutionally void; (2) that the concrete pump does not qualify as a “self-propelled crane” or as “road machinery” under the exemptions in 8-128 because the concrete pump does not meet the ordinary description of a “crane” or “road machinery”; and (3) that defendants were guilty as charged.
Defendants appealed from that decision to the District Court of Coffey County. The district court adopted the findings of fact and conclusions of law of the magistrate, and in addition relied on an opinion of the attorney general (Att’y Gen. Op. No. 78-378) which opines that a Thomsen truck-mounted concrete pump is not a crane. The district court found defendants guilty and fined them $11 per violation, plus costs. Defendants appeal from that decision.
In this case, the trial de novo before the district court was based upon the record of evidence presented to the district magistrate judge. On appeal, this court may likewise look at the same record in order to make its own decision. See In re Estate of Thompson, 226 Kan. 437, 601 P.2d 1105 (1979).
K.S.A. 1981 Supp. 8-127(a) provides:
“(a) Every owner of a motor vehicle, motorized bicycle, trailer or semitrailer intended to be operated upon any highway in this state, whether such owner is a resident of this state or another state, or such motor vehicle, motorized bicycle, trailer or semitrailer is based in this state or another state shall, before any such vehicle is operated in this state, apply for and obtain registration in this state under the provisions of K.S.A. 8-126 to 8-149, inclusive, and acts amendatory thereof or supplemental thereto, except as otherwise provided by law or by any interstate contract, agreement, arrangement or declaration made by the director of vehicles.”
K.S.A. 1981 Supp. 8-128 provides:
“(a) Farm tractors, all self-propelled farm implements including fertilizers and spreaders designed and used exclusively for dispensing liquid or dust fertilizer, road rollers and road machinery temporarily operated or moved upon the highways, municipally owned fire trucks, privately owned fire trucks subject to a mutual aid agreement with a municipality and school buses owned and operated by a school district or a nonpublic school which have the name of the municipality, school district or nonpublic school plainly painted thereon need not be registered under this act. A truck mounted fertilizer spreader used or manufactured principally to spread animal dung is not a self-propelled farm implement for the purpose of this section or for the purpose of the act of which this section is a part.
“(b) Self-propelled cranes and earth moving equipment which are equipped with pneumatic tires may be moved on the highways of this state from one job location to another, or to or from places of storage, delivery or repair, without complying with the provisions of the law relating to registration and display of license plates but shall comply with all the other requirements of the law relating to motor vehicles and shall not be operated on state maintained roads or highways on Sundays or any legal holidays except Lincoln’s birthday, Washington’s birthday or Columbus day.” (Emphasis supplied.)
K.S.A. 1981 Supp. 8-142 First provides:
“It shall be unlawful for any person to commit any of the following acts:
“First: To operate, or for the owner thereof knowingly to permit the operation, upon a highway of any vehicle, as defined in K.S.A. 8-126, which is not registered . . . .”
Defendants contend that a concrete pump is a self-propelled crane and therefore is exempted from the vehicle registration requirement pursuant to K.S.A. 1981 Supp. 8-128.
Neither the Kansas statutes nor Kansas case law define “self-propelled crane.” Consequently, this court must construe K.S.A. 1981 Supp. 8-128(h) to see whether a concrete pump can be considered a “self-propelled crane” for the purposes of the exemption.
“Crane” is defined in Webster’s Third New International Dictionary 529 (1976) as:
“[A] machine for raising and lowering heavy weights and transporting them through a limited horizontal distance while holding them suspended and [usually] having a jib of timber or steel sometimes affixed to a rotating post held by guys or having the hoisting apparatus supported by a trolley running on an overhead track.”
Defendants maintain that the concrete pump falls within the above definition since the vehicle is capable of lifting and moving heavy weights of wet concrete (two to three thousand pounds), has been used to move columns of concrete into place, and has been used to lift other machines up onto decks. The vehicle consists of a truck chassis with a concrete pump integrated into it. The vehicle is sold to buyers as one complete unit. It has a movable projecting arm or boom which is capable of hoisting a load in a horizontal or lateral direction. Its ordinary use, however, is for the arm to be positioned into place and then to pump wet concrete to the desired location.
Defendants cite to Moravek’s Concrete v. Dept. of Revenue, 285 Or. 495, 591 P.2d 1379 (1979), as support for their position. Moravek’s is an appeal by the Oregon Department of Revenue from a decision of the Oregon tax court which held that the plaintiff’s concrete pump/boom trucks were exempt from ad valorem personal property taxation since they could be characterized as “self-propelled mobile cranes.” The Oregon Supreme Court affirmed, holding that such trucks were within the statutory exemption for “self-propelled mobile cranes.” The Oregon court reasoned:
“Ordinary self-propelled mobile cranes and concrete pump/boom trucks are both used in the lifting and placing of wet concrete. However, ordinary self-propelled mobile cranes are used for many other lifting purposes, whereas concrete pump/boom trucks are usually not so used. The conventional mobile crane uses a winch that winds in and lets out a cable running through a boom and attached to a bucket in which the concrete is raised, lowered and swung about to the place where the concrete is desired. A concrete pump/boom truck accomplishes the same purpose by pumping the concrete through a pipe or hose attached to a boom.
“We agree with the tax court in the conclusion that the words ‘self-propelled mobile cranes’ as used by the legislature were intended as a generic term rather than as a term referring particularly to those mobile cranes in existence at the time of the passage of the statutory exemption. Therefore, the issue is whether a concrete pump/boom truck is a self-propelled mobile crane. We conclude that by its use of a movable boom mounted upon a self-propelled vehicle to raise, lower and swing its load to the desired place, a concrete pump/boom truck employs the same methods and activities which distinguish a mobile crane. It is not reasonable that two vehicles should be distinguished for the purpose of exemption from taxation solely on the basis that one performs the lifting process by an engine that drives a winch while the other does so by an engine that drives a pump. Both are similar instruments, used for similar purposes, which fit within a common description of a mobile crane. We can see no reasonable basis for a distinction, despite the rule which requires that an exemption from taxation be construed strictly.” 285 Or. at 498-499.
The State contends that Moravek’s should be distinguished from the present case on the basis that Moravek’s concerns an ad valorem tax where the present case concerns only motor vehicle registration and licensing. We do not find this distinction to be meaningful or dispositive.
The State urges the adoption of the position taken by the attorney general as reflected in his opinion No. 78-378. The attorney general found that truck mounted concrete pump units are not self-propelled cranes as defined by K.S.A. 1981 Supp. 8-128(¿) and are not exempt from the Kansas truck registration and licensing requirements. This opinion, of course, has no precedential value, and this court is free to reject the attorney general’s conclusion.
The State also maintains that assuming arguendo this court finds the concrete pump to fall within the definition of a self-propelled crane, defendants nevertheless should not be granted an exemption based on the particular facts of this case, in light of the restrictions on movement contained in K.S.A. 1981 Supp. 8-128. The evidence shows that during the particular period in which they were stopped, defendants were driving the concrete pumps from their place of business in Kansas City, Kansas, to a job site near Burlington, Kansas, and back again on a daily basis. The exemption statute permits the moving of the vehicles from one job location to another or from places of storage, delivery or repair. The State argues that the statute does not contemplate the vehicles being driven on state highways from five to six hours each day, and specifically prohibits the use of state maintained roads on Sunday. Defendant Booth was issued his citation on Sunday, July 20, 1980.
After a careful examination of the relevant statutes, we find that the distinctions which exist in the statutes for earth moving equipment, road building equipment, and self-propelled cranes unquestionably refer to that equipment which would, on limited occasions, have cause to use the roads and highways within the state to gain access to a job site where the equipment’s manufactured function could then be carried out or performed. The evidence presented in this case clearly shows that this particular equipment, the concrete pump, has as its ordinary and primary purpose the lifting and pumping of wet concrete from the ground level to perpendicular heights, and also horizontally in various directions. The evidence further shows that this equipment was mounted on a truck chassis equipped with pneumatic tires, and that it is only after said equipment arrives at the job site that the purpose of its being occurs. The evidence further shows that on the particular occasions that defendants’ concrete pumps were stopped, they were enroute to a job site where their usage was as backup for like equipment which was regularly situated at the job site. The concrete pump’s use was temporary and intermittent in nature for short periods of time, rather than for the entire period of time from the commencement of the concrete pouring to its completion at this particular job site. The evidence shows that the concrete pumps were being driven from their place of storage to the job site and back, in accordance with K.S.A. 1981 Supp. 8-128. The use of the state’s highways on a Sunday was not, however, in accordance with 8-128.
We find that defendants’ concrete pump/boom trucks are within the generic meaning of “self-propelled crane” as it appears in K.S.A. 1981 Supp. 8-128(b) and therefore are exempt from the registration provisions of K.S.A. 1981 Supp. 8-127.
We specifically find that this equipment does not come within the classification of K.S.A. 1981 Supp. 8-128(a) “road machinery.” We also concur with the district court’s finding that 8-128 is not vague and therefore is not unconstitutional. The language of 8-128 cannot be said to be so vague and indefinite as to render it unconstitutionally void. State v. Next Door Cinema Corp., 225 Kan. 112, 587 P.2d 326 (1978).
Defendants contend that their reliance on an official interpretation of 8-128 constitutes a defense of mistake of law under K.S.A. 21-3203. That statute reads in part:
“(2) A person’s reasonable belief that his conduct does not constitute a crime is a defense if:
“(c) He acts in reliance upon an order or opinion of the supreme court of Kansas or a United States appellate court later overruled or reversed;
“(d) He acts in reliance upon an official interpretation of the statute, regulation or order defining the crime made by a public officer or agency legally authorized to interpret such statute.”
Defendants maintain that they relied on both a 1975 letter from the attorney general’s office in which an informal opinion was rendered to the effect that a concrete pump is “road machinery” within the meaning of K.S.A. 8-128(a), and a 1978 decision in the District Court of Johnson County (State v. Cummings, case No. T-11470), in which the district court found the same type concrete pump to be “clearly within the definition and is in fact a crane and therefore exempt from registration pursuant to K.S.A. 8-128,” in making their decision not to register the vehicles. In State v. V. F. W. Post No. 3722, 215 Kan. 693, Syl. ¶ 2, 527 P.2d 1020 (1974), the court held:
“Under the provisions of K.S.A. 1973 Supp. 21-3203(2) a person’s belief that his conduct does not constitute a crime because of reliance on a court decision is a defense only when he has relied on a decision of the Supreme Court of Kansas or of a United States appellate court later overruled. Such belief is not a defense when reliance is based on a decision of a district, county or other inferior court of the state.”
Clearly, defendants’ reliance on the decision of a district court does not provide a defense based on mistake of law.
Defendants’ reliance on the 1975 attorney general letter is also unfounded. The letter clearly states:
“I must caution you that this opinion does not carry any legal weight. It is rendered merely as our interpretation of the law, which is subject to any different interpretation by any court in the state. In other words, your users may still be subject to citation because of not having a license tag. The only way that the matter can be settled is by a test case in a court of law.”
We find defendants’ contention of a defense based on mistake of law to be meritless.
The judgment of the trial court is reversed, except in the case where defendant Booth was driving the concrete pump on a Sunday, contrary to K.S.A. 1981 Supp. 8-128(b). | [
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Meyer, J.:
This case involves garnishment proceedings.
Grace, Niemackl & Schwerdt, garnishors-appellees (garnishors herein), obtained judgment against Speedway Festivals, Inc., for $3,000.00 on August 25, 1976. On June 24, 1980, Shawnee County, garnishee-appellant (garnishee herein), became indebted to Speedway Festivals, Inc., for $40,000.00, by reason of settlement of a lawsuit between Speedway Festivals, Inc. and Shawnee County.
Immediately upon approval of the settlement by the Board of County Commissioners of Shawnee County, a special request was given to the county clerk’s office to issue a check in the amount of $40,000.00 to Speedway Festivals, Inc. Said check was delivered to Speedway Festivals, Inc., before noon on June 24, 1980. That same day, the check was presented by the payees for payment at the State Bank of Carbondale. Upon presentment and indorsement by the payees, the check was cashed by the State Bank of Carbondale. The State Bank of Carbondale accepted the check for payment in good faith and without notice of any defenses against or claims to it.
On June 25, 1980, an order of garnishment was requested by the garnishor and said garnishment was received by the clerk of Shawnee County on June 25, 1980, at 9:10 a.m.
The afternoon of June 25, 1980, at the request of another judgment creditor of Speedway Festivals, Inc., the Shawnee County sheriff’s office served an order of attachment for said check on the drawee, First National Bank of Topeka. Said funds were attached at the First National Bank from June 25, 1980, to June 27, 1980.
On June 25, 1980, the State Bank of Carbondale sent the check to First National Bank for payment and the check was received by First National Bank the evening of June 25, 1980.
On June 26, 1980, because of the attachment order, First National Bank denied payment of the check and returned it to the State Bank of Carbondale. On June 27, 1980, the State Bank of Carbondale again presented said check to First National Bank of Topeka and First National Bank of Topeka paid the State Bank of Carbondale for it.
On July 3, 1980, the garnishee filed its answer to the garnishment. The alleged “answer” was a form used in garnishments, but none of the blanks were filled in. The “answer” was signed by Winifred L. Kingman by A.B., but was not verified. In the lower right hand corner, the form contained the words, “No Money.”
After a hearing to the trial court, the court ruled that the garnishee filed no document which could be construed as an answer since it did not answer the garnishment as provided by law. The court further ruled that the garnishee had funds in its possession belonging to Speedway Festivals, Inc., at the time of receiving the order of garnishment. The court found that the check did not relieve the garnishee from liability and that the garnishee had a duty to stop payment of the check.
The garnishee brings this appeal.
The garnishee contends the court erred in finding that it failed to answer the garnishment.
K.S.A. 61-2006 sets out the requirements for an answer of a garnishee:
“Within ten (10) days after service upon him or her of an order of garnishment issued for the purpose of attaching any property, funds, credits or indebtedness belonging to or owing the defendant, other than earnings, and within thirty (30) days after service upon him or her of an order of garnishment issued for the purpose of attaching any earnings due and owing the defendant, the garnishee shall file his or her verified answer thereto with the clerk of the court stating the facts with respect to the demands of the order: Provided, That where the office or principal place of business of the garnishee is outside the county where said court is situated, said garnishee shall file an answer within thirty (30) days. The answer of the garnishee may be on the appropriate form prescribed in the appendix to this act, but in no event shall the garnishee’s answer contain less than that so prescribed in said form.”
Further, the statute sets out the procedure in case a garnishee fails to answer in the time and manner specified:
“If the garnishee fails to answer within the time and manner herein specified, the court may grant judgment against garnishee for the amount of the plaintiff’s judgment or claim against the defendant, but if the claim of the plaintiff has not been reduced to judgment, the liability of the garnishee shall be limited to the judgment ultimately rendered against the defendant: Provided, however, Said judgment may be taken only upon written motion and notice given in accordance with subsection {d) of K.S.A. 60-206.”
The court in McCreery v. McCreery, 210 Kan. 99, 102-3, 499 P.2d 1118 (1972), interpreted the similar statute, K.S.A. 60-718, as follows:
“We can see justification for a judgment in favor of the plaintiff when the garnishee completely ignores the garnishment order as occurred in Buzbee v. Allen County State Bank, 191 Kan. 112, 379 P.2d 250 [1963]. We can see no justification for employing the harsh results of substituting one debtor for another after a garnishee has submitted himself to the jurisdiction of the court. In this situation, even though a garnishee fails to supply information of a material nature to the interests of the plaintiff, the plaintiff has remedies and the court has jurisdiction to enforce those remedies.” (Emphasis added.)
The court further added:
“[A]s long as a garnishee submits himself to the jurisdiction of the court the discovery provisions of the code give ample tools to the plaintiff to protect and enforce all rights intended to be provided to support his interests. Whenever a garnishee makes an appearance in an action no judgment should be entered against him without providing an opportunity to fully answer and present his defenses.” 210 Kan. at 104.
In Jones v. Main, 196 Kan. 91, 410 P.2d 303 (1966), a garnishee made a note on the garnishee’s summons that he had no money due the principal defendant, and filed it with the clerk. It was therein held that this constituted an appearance and the entering of default judgment by the trial court was error. The following are excerpts from Jones:
“On August 3, 1964, Perfecto filed with the clerk of the court his copy of the garnishment summons, on the bottom of which the following notation was inscribed:
“ T received this Summons in Garnishment on the 23 day of July A.D. 1964. As of this day, J. H. Main does not have any money due him from me.’
“The foregoing notation was neither verified nor signed, and it is said in appellees’ brief that it was typewritten. However, the entire document, notation and all, was stamped and filed by the clerk and plaintiffs’ attorney had knowledge to such effect.” 196 Kan. at 92.
Further, the court stated:
“We deem it unnecessary to decide the question of whether the somewhat unorthodox pleading filed by Perfecto, apparently pro se, fulfills all the requirements of the answer which the statute directs is to be filed by a party who has been garnisheed. Assuming, for the sake of argument, that the instrument under scrutiny in this case does lack certain statutory essentials, we believe it is nonetheless sufficient to constitute an appearance . . . .” 196 Kan. at 92.
We conclude the meaning of both Jones and McCreery is that a garnishee-defendant has a right to be heard on the merits, whenever the garnishee-defendant appears in the case. In the instant case, unlike in Jones, the garnishee’s answer was signed. Further, the statement at the bottom of that answer stated “No Money.” Thus, we hold there was an appearance by the garnishee by way of the possibly defective “answer.” Moreover, there was actual notice and a hearing.
We can see no way that the garnishors have suffered for the want of a more precise answer or from the fact that the instrument lacked verification by the county.
The mere fact that the answer in the present case failed to contain certain particulars of the statute is not sufficient grounds for judgment against the garnishee. The judgment of the trial court should be affirmed or reversed on the merits of the case.
The garnishee next contends the trial court erred in finding that it had in its control at the time of the service of the garnishment order funds belonging to Speedway Festivals, Inc.
K.S.A. 1980 Supp. 61-2005(c) provides in pertinent part:
“An order of garnishment . . . shall have the effect of attaching ... all such credits and indebtedness becoming due to the defendant between the time of the serving of the order of garnishment and the time of the filing of the answer of the garnishee . . . and such garnishee shall be prohibited from paying over to the defendant any of such property or funds until so ordered by the court from which said order of garnishment was issued.”
The issue then is whether the transfer of the check to the payee and the negotiation of said check to a holder in due course prior to the garnishment was sufficient to relieve the garnishee from liability.
“The general rules expressed and supported by well-reasoned cases collated at 38 C.J.S. Garnishment § 96 are that payment by check suspends the judgment debtor’s remedy against the garnishee and, as long as the check is not dishonored, defeats a subsequent garnishment; and the garnishee-drawer of the check released from his control has no duty or obligation to stop payment thereon for the benefit of the garnishor.” Pearson Grain Company v. Plains Trucking Co., Inc., 494 S.W.2d 639, 641 (Tex. Civ. App. 1973).
Other cases in accord with general rules expressed above include Russ Togs, Inc. v. Gordon, 127 Ga. App. 520, 194 S.E.2d 280 (1972); Hart v. Williams Veneer Co., 287 Ill. App. 89, 4 N.E.2d 499 (1936); Brandfass v. Kohn, 113 W. Va. 442, 168 S.E. 476 (1933); Kerr Furniture Co. v. American Ry. Express Co., 145 Okla. 278, 292 Pac. 560 (1930); Amer. Agri. Chem. Co. v. Scrimger, 130 Md. 389, 100 A. 774 (1917); Moreau River St. Bk. v. Japinga, 37 S.D. 404, 158 N.W. 786 (1916); Larsen v. Allan Line Steamship Co., 45 Wash. 406, 88 Pac. 753 (1907). See also 6 Am. Jur. 2d, Attachment and Garnishment § 123, pp. 647-8; and 38 C.J.S., Garnishment § 96, pp. 304-5.
The Kansas court held in Grant v. Reed, 165 Kan. 27, 193 P.2d 214 (1948), that a check which was dishonored by the payee bank prior to the garnishment proceeding was not a payment of the debt, and therefore, the garnishee issuing said check was indebted to the defendant at the time of the garnishment. This case is easily reconciled with the general rule since the check only suspends the liability of the garnishee until said check is dishonored. If the check is dishonored, then the liability would generally still be due.
This is consistent with the Uniform Commercial Code’s view of the effect of a negotiable instrument on the underlying obligation:
“Unless otherwise agreed . . . the obligation is suspended pro tanto until the instrument is due or if it is payable on demand until its presentment. If the instrument is dishonored action may be maintained on either the instrument or the obligation. . . .” K.S.A. 84-3-802(l)(b).
In the case at bar, we have an unusual situation where the check was dishonored after it had passed into the hands of a holder in due course, and further, was two days later honored by the drawee bank. The garnishors argue that this temporary dishonor renewed the debt owed between the garnishee and Speedway Festivals, Inc.
Several cases have recognized that where a check is negotiated to a holder in due course before garnishment, since the payee could not have recovered against the drawer, the creditor of payee, having no greater right, could not succeed in his garnishment. Hiatt v. Edwards, 52 Ga. App. 152, 182 S.E. 634 (1935); Farrington v. Fleming Commission Co., 94 Neb. 108, 142 N.W. 297 (1913); National Park Bank v. Levy Brothers, 17 R.I. 746, 24 A. 777 (1892).
In Grant v. Reed, 165 Kan. 27, the Kansas court ruled that a garnishee was still liable on checks orally assigned to a third party. It is noted, however, that said checks were assigned after they were dishonored and known to be dishonored and not transferred for value. Therefore, the third party was not a holder in due course, and had no greater right than the payee to the funds. Even cases which state that delivery of a draft does not relieve the garnishee if not yet paid, have noted in dicta that when negotiable paper is transferred to a bona fide indorsee for value, there is no garnishable debt to the original payee. Reade v. Indemnity Ins. Co., 121 Conn. 309, 184 A. 646 (1936); Kossover v. Willimantic Trust Co., 122 Conn. 166, 187 A. 907 (1936).
In cases where stop payment orders were in fact entered prior to payment but after the check had been delivered to payee, the garnishee has been held liable. However, both cases noted in dicta that if the check had passed into the hands of a holder in due course, the judgment debtor would have no claim against the garnishee. Universal Supply Co. v. Hildreth, 287 Mass. 538, 192 N.E. 23 (1934); Riegert v. Mauntel, 44 Ohio App. 470, 185 N.E. 811 (1932). As noted above, there is no duty on the garnishee to stop payment on a check upon receipt of a garnishment order.
Certainly, in the case at bar, Speedway Festivals, Inc., had no right of action against the garnishee since it had cash in hand for the check during the two days that the check had been dishonored.
“[Tjhe garnishor acquires no greater right by service of the writ of garnishment than the judgment debtor would be able to assert and enforce against the garnishee.” Pearson Grain Company v. Plains Trucking Co., Inc., 494 S.W.2d at 641.
The trial court seemed to place a great amount of emphasis on the fact that the check was issued so fast and out of the ordinary course of business. While it appears that the county commissioners knew that the garnishors had a claim against Speedway Festivals, Inc., that is not grounds for making the garnishment good.
“[Ojne owing plaintiff’s debtor may pay his debt to such debtor at any time as it is his legal obligation to do, and this he may do even in order to defeat garnishment and even in aid of the debtor in placing the amount of the debt beyond the reach of the latter’s creditors.” Pickering, Etc. v. Hartsock, 221 Mo. App. 868, 877, 287 S.W. 819 (1926).
“[Tjhere is no rule of law that requires a bank or any one else to withhold funds owing by them to another person, upon the ground that they have knowledge of the fact that some one else has an unsatisfied judgment against such other person.” Provident Nat. Bank of Waco v. Cairo Flour Co., 226 S.W. 499, 504 (Tex. Civ. App. 1920).
See also 38 C.J.S., Garnishment § 95, pp. 302-3. We conclude that the fact that the commissioners knew that the garnishors wished to garnish the proceeds from the lawsuit was not a sufficient reason to make the garnishee liable.
The trial court erroneously concluded as a matter of law that since the garnishee could have stopped payment on the check, that same was still under its control sufficiently to make it now liable to the garnishors herein. In the first place, there is no duty on the garnishee to stop payment on a check when it receives a garnishment order. Further, the check to Speedway Festivals, Inc., had — before the garnishment order was received by the garnishee — passed to the Carbondale bank, which bank was indisputably a holder in due course. To hold that the garnishee was still in possession of the $40,000.00 represented by that check is to ignore the fact that had the garnishee stopped payment on the check, it would have been liable for the full amount thereof to the Carbondale bank. Such is not the kind of possession or control of funds as is contemplated by the garnishment statutes, nor by the cases construing such statutes.
We conclude there was no indebtedness due Speedway Festivals, Inc., from the garnishee at the time of the garnishment. The trial court is therefore reversed.
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Meyer, J.:
This is a mortgage foreclosure case.
On January 30, 1976, Lowell and Judith Lygrisse executed in favor of First National Bank & Trust Company (appellee) a $47,000 promissory note and real estate mortgage describing their homestead in Butler County, Kansas. The mortgage contained a future advance clause stating:
“It is the intention and agreement of the parties that this mortgage also secures any future advancements made to mortgagors, or either or any of them, by mortgagee and all indebtedness in addition to the above amount which mortgagors, or either or any of them, may owe to mortgagee, however evidenced, whether by note, book account or otherwise, in amount not to exceed $400,000.00. This mortgage shall remain in full force and effect until all amounts due hereunder, including future advancements, are paid in full, with interest. Upon the maturing of the indebtedness for any cause, the total debt on such additional loans, if any, with interest, shall at the same time and for the same specified causes be considered matured, and shall be collectible out of the proceeds of sale through foreclosure or otherwise.”
A preexisting debt to appellee was not specifically referred to in either the note or mortgage.
On April Í2, 1976, the Lygrisses signed a note consolidating the following: notes owed appellee as participations from other banks in the amount of $141,061.72; notes still being participated in by other banks of $47,545.28; a direct note with appellee for the purchase of 43 shares of stock in the amount of $20,166.58; the mortgage note and interest of $47,890.43; and a new advance of $18,000.00, for a total note of $274,664.01. In the memorandum space designated “NOTE SECURED BY,” the numbers of the various notes being renewed were listed, as well as “S/A 509 head of cattle, machinery & equip., Financial Stmt., R. E. Mtg. dtd. 1/30/76.”
On October 15, 1976, interest due to date of $13,296.75 was added to the outstanding balance and the note renewed for $287,960.76. The note was subsequently renewed with no increase except for interest on May 10, 1977, for $295,000.00, and on November 15, 1977, for $309,000.00. Only Lowell Lygrisse’s signature appeared on the May and November notes. Lygrisse’s copy of the November note did not list the real estate mortgage in the memorandum space; appellee’s copy of the same note, on the other hand, does have a reference to said mortgage in that space.
Appellee later declared the November 15, 1977, note due and on February 1, 1979, filed a foreclosure action. Defendant Judith Lygrisse answered admitting indebtedness of $47,000.00 plus interest, but denying any other loans were advanced which were secured by the mortgage. During the pendency of the foreclosure, Judith Lygrisse was awarded the homestead (the real estate described in the $47,000.00 mortgage) pursuant to a divorce decree.
Following trial and consideration of trial briefs, on October 8, 1980, the trial court issued a memorandum opinion finding the mortgage secured the full amount remaining due and owing on the November 15, 1977, note in the amount of $206,413.91 plus interest accruing at $53.17 per diem.
A notice of appeal was filed by Judith Lygrisse (appellant) and also by the Small Business Administration. The Small Business Administration dismissed its appeal on March 24, 1981, leaving Judith Lygrisse as the only appellant herein.
At issue is whether the trial court erred in finding the mortgage secured amounts in excess of the original $47,000.00 loan plus interest.
The controlling case is Emporia State Bank & Trust Co. v. Mounkes, 214 Kan. 178, 519 P.2d 618 (1974). In that opinion, the court gave a comprehensive review of the treatment of future advance clauses by other states and established guidelines for their construction in Kansas. The court, in its examination of case law from other jurisdictions, stated as follows:
“Where the construction of a mortgage is brought in issue the primary question for determination is what was the intention of the parties. In arriving at a decision of the matter, all the circumstances attending the execution of the mortgage and the nature of the transaction are to be considered as well as the language of the instrument itself. (Hendrickson v. Farmers Bk. & Trust Co., 189 Ark. 423, 433, 73 S.W.2d 725.) In the Hendrickson case the court stated that where a mortgage has been given to secure a debt specifically named, the security will not be extended to cover debts subsequently incurred unless they be of the same class and so related to the primary debt secured that the assent of the mortgagor will be inferred. The reason is that mortgages, by the use of general terms, ought never to be so extended as to secure debts which the debtor did not contemplate. The court then proceeded to quote the following passage from American Bank & Trust Co. v. First National Bank of Paris, 184 Ark. 689, 43 S.W.2d 248:
“ . . “Where one contracts in good faith with a debtor that the security given should include not only that specifically mentioned in the mortgage but other indebtedness, whether existing then or to be incurred in the future, it is not difficult to describe the nature and character thereof, so that both the debtor and third parties may be fully advised as to the extent of the mortgage.’ ” (pp. 433, 434.)
“The foregoing cases were later followed by National Bank of Eastern Arkansas v. Blankenship, 177 F. Supp. 667, 673, where the court spoke in this wise:
“ ‘The “other indebtedness” secured by a mortgage may be either antecedent or subsequent. Where it is antecedent, it must be identified in clear terms, and where it is subsequent, it must be of the same class as the primary obligation secured by the instrument and so related to it that the consent of the debtor to its inclusion may be inferred. (Citing cases.)’
To similar effect see Belton v. Bank, 186 N.C. 614, 616, 120 S.E. 220.” 214 Kan. at 181-82.
The court then expressed its own concise rule, to govern the effect of dragnet clauses in Kansas, stating:
“In summary, we hold that in the absence of clear, supportive evidence of a contrary intention a mortgage containing a dragnet type clause will not be extended to cover future advances unless the advances are of the same kind and quality or relate to the same transaction or series of transactions as the principal obligation secured or unless the document evidencing the subsequent advance refers to the mortgage as providing security therefor.” 214 Kan. at 184.
This rule first establishes a rebuttable presumption that the parties did not intend the transaction in question to be covered by the dragnet clause. In order to secure other debts under a mortgage, the mortgagee must rebut this presumption by proof that one or more of the exceptions noted applies to such other debts.
As we view it, the rule of Mounkes can be summarized as follows: In construing a mortgage, the primary issue involves determining the intention of the parties. Unless the evidence of intent is clear, a “dragnet clause” will not be held to secure “other indebtedness” except when the intent is inferred in certain specific circumstances. This presumption against securing of “other indebtedness” is grounded on the fact that dragnet clauses are not highly regarded in equity, and should be carefully scrutinized and strictly construed. Although Mounkes does not specifically define “future advances,” it does classify “other indebtedness” as either antecedent or subsequent debts. Where a mortgage is given to secure a debt specifically named, the security will be extended as to antecedent debts only if the instrument so provides and identifies in clear terms those debts intended to be secured. Subsequent debts may be secured under a “dragnet clause” in either of two ways: by specifically stating in the new note that it is secured by the prior mortgage; or 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, the mortgage. Applying this rule to the limited record before us, we will examine to see upon what basis the trial court could have reached its conclusion that the mortgage secured the entire $206,413.91 plus interest due and owing on the consolidated note of November 15, 1977.
The evidence to disclose the true intention of the parties is rather scarce. Glenn Dawson, executive vice president and cashier of appellee bank, testified in regard to the loan transactions. He did not testify as to the purpose of the $47,000.00 mortgage or of the dragnet clause; nor did he indicate that he personally participated in the transactions. Dawson merely professed knowledge of bank procedure, its records, and a general familiarity with the Lygrisse accounts. The testimony of Lowell Lygrisse, the only other witness at trial, is unavailable due to malfunction of the electronic recording equipment used at the trial. Because Judith Lygrisse did not testify, there is a complete absence of any real evidence of the parties’ intentions at the execution of the documents. The note itself does not specify the purpose of the loan. The presumption against the inclusion of subsequent notes under the dragnet clause remains to be rebutted by one of the exceptions to the rule enunciated in Mounkes.
It is this court’s opinion, and we hold, that the consolidation of several notes, one or more, but not all, of which are secured by a mortgage, will not by itself extend the security of the mortgage to cover the total debt thus consolidated. Other debts, whether preexisting or after-arising, will not become secured under the mortgage by the mere act of consolidating these several debts into a single note; only if one of the exceptions announced in Mounkes applies will the intention of the parties that the mortgage be extended to the entire amount of the consolidation note be inferred. With this in mind, we will now address the issue whether one or more of these exceptions to the rule apply in the case at bar.
The first exception to the rule applies to preexisting debts. This exception extends future advance, or dragnet, clauses to cover antecedent debts, if these are clearly identified in the mortgage. The mortgage and note dated January 30, 1976, were introduced into the record. Nowhere in either the mortgage or the note is there any mention of any preexisting debt. It is clear that the antecedent debts were not secured by the mortgage when it was signed; at that time the amount of security was only $47,000.00.
The second and third exceptions to the rule apply to future advances. Most of the amount due on the November, 1977, note was owed on notes existing prior to January 30, 1976. We shall examine the record to see if it will support a conclusion that the antecedent debts became secured by the mortgage under either of these two exceptions.
The second exception allows coverage if the advances relate to the same transaction or series of transactions, or are of the same kind or character as the initial transaction.
The trial judge specifically found that:
“[T]he consolidation and subsequent renewals, including the additions of interest, constituted advances of the same kind and quality, and related to the same transaction or series of transactions as the principal obligation secured.”
The only evidence we find in the record which is relevant to this issue came from the appellee’s employee, Mr. Dawson. He testified that the bank maintained three separate liability ledgers for the Lygrisses. One ledger was used for operating expense loans for Butler County Implement, Inc. Another ledger was for personal loans to Lowell Lygrisse. This second ledger contained all the notes relating to Lygrisse’s cattle and farming operations, all of these notes being the same ones which were later consolidated with the real estate mortgage note. The third ledger contained only the real estate mortgage note.
As we view it, the only inference which can reasonably be drawn from this evidence is that the mortgage note was for a different purpose than those notes in the “personal loans to Lowell Lygrisse” ledger, with which it was later consolidated. Being for a different purpose, the mortgage could not possibly be of the same kind or quality as, nor part of the same transaction or series of transactions with, the other note. The trial court’s finding noted above is not supported by any evidence in the record; we must reverse it.
The third exception will construe a subsequent note to be a future advance secured by the mortgage only if the document evidencing the advance refers to the mortgage. The original mortgage note was directly made a part of the mortgage, which was recorded; that note reads, in its entirety, as follows:
The original mortgage and note, thus, have a clear connection between them, by the notation on the face of the note, “R.E. Mtg. dtd. 1/30/76,” the amounts, the note’s inclusion in the body of the mortgage and by their contemporaneous execution.
In the body of the subsequent notes, however, reference is made only to a security agreement bearing the same date as the note. The security agreement referred to only lists personalty. The notation “R. E. Mtg. dtd. 1/30/76” appears only in a memorandum space entitled “NOTE SECURED BY.” A list of notes renewed and a summarization of the collateral listed in the security agreement appear on all the notes. The November 1977 note, as originally executed and microfilmed, does not even mention or list the mortgage at all.
On the one hand, appellee argues that the notations in the memorandum space clearly identify the security backing the note; on the other hand, appellee admits that such notations are used only for internal bank purposes. Appellee cannot have it both ways. Appellee also insists that it is inconsequential that the November note, as originally signed by appellant Lowell Lygrisse, contained no notation referring to the real estate mortgage. The copy filed by appellee in this action does, however, contain the notation “R. E. Mtg. dtd. 1/30/76” in the memorandum space. Appellee explained that the fact the notation was not originally made was due to inadvertence or mistake, and that the later addition of such notation to its copy of the note was done in good faith. We cannot accept this explanation as sufficient; it appears to us that appellee materially altered its copy of the note after it was signed by Lowell Lygrisse.
Even accepting that the failure to note the mortgage in the memorandum space of the November note was due only to appellee’s excusable neglect, we are still of the opinion that appellee’s argument here must fail. The mortgage is not specifically mentioned in the body of any of the consolidation notes; certain security agreements concerning personalty are mentioned in the body of each note. We deem it important that the only references to the mortgage or any of the consolidation notes appear in the aforementioned memorandum space. In fact, the November note, as originally executed, contained no reference to the mortgage, either in the body or the memorandum space. By appellee’s own admission, the memorandum space is used by the bank only for its own internal purposes. Also, as the November note clearly illustrates, it is quite possible for the lender to make material changes in this space after the borrower has signed the agreement.
We pay particular attention to the Mounkes opinion, where the court admonished:
“Despite recognition by both judicial and legislative bodies that the dragnet mortgage fills a contemporary need in the complex world of business, it is not a favorite of the law and is subject to interpretation and construction. As the Iowa Supreme Court so aptly observed in First v. Byrne, 238 Iowa 712, 28 N.W.2d 509, 172 A.L.R. 1072, ‘ “Dragnet” clauses are not highly regarded in equity. They should be “carefully scrutinized and strictly construed.” ’ (pp. 715, 716.)” 214 Kan. 180-181.
The rigorous scrutiny mandated by Mounkes would seem to find the notations lacking in clarity. We hold that the notation of “R. E. Mtg. dtd. 1/30/76” made by appellee in the memorandum space of the consolidation notes was not sufficient to subject that mortgage to the full amount of the consolidation note. As a matter of law, such a notation does not adequately refer to the mortgage as securing the entire amount on that note. Such a notation, standing alone, cannot be said to be a clear and specific indication that it was the intention of the parties to expand the mortgage to secure the entire balance of the note; this is particularly true where, as here, the notations in the memorandum space refer also to several other security agreements covering personalty as being security for the consolidated debt. It appears to us that the notation could just as reasonably be considered a reference to the fact that there was a mortgage securing a portion of the total balance, to-wit, $47,000.00, and that the other items listed secured the remainder of the debt.
In reaching our conclusion, we are not unmindful of the worries expressed by appellee in its brief, wherein it stated: “A decision in favor of [appellant] could very well have far-reaching effect upon the way banking practices are carried on in the state of Kansas.” We do not agree with appellee’s argument that our ruling will require a bank to take a new mortgage each time new funds are advanced or existing notes are consolidated. There are other means of invoking the dragnet clause, among them a specific reference to the mortgage in the new note, clearly indicating that the mortgage is intended to secure the entire amount due on the new note. We do not now undertake to map the boundaries of what references are sufficiently clear indications of intent and what are not; these parameters will have to be determined on a case-by-case basis. We will state here, by way of dictum, that a clause in the body of the November note, clearly and expressly subjecting the prior mortgage to the entire balance of said note, would have been sufficient to support the judgment which we now reverse. In light of the abuses which a dragnet clause can subject a debtor to, we do not feel that the burden we today place on their enforcement by lending institutions is an onerous one.
To summarize our analysis of these transactions under the guidelines of Mounkes, it would seem there is no clear, supportive evidence of an intention by the parties to subject the mortgage to the particular subsequent notes. The evidence relating to the purpose of the mortgage will not support a finding that the transactions are of the same kind or character as, or part of the same transaction with, the mortgage. The mortgage itself makes no mention of the notes existing at the time of its execution or interest thereon. Finally, the notations made on the subsequent notes, admittedly referring to the mortgage, were legally insufficient to constitute a clear indication that the parties intended to subject the mortgage to the full amount due on those subsequent notes. For these reasons, the conclusion of the trial court that the mortgage secured sums in addition to the $47,000.00 plus interest due on the original mortgage note was error. The trial court’s decision must therefore be reversed, and the case remanded to the trial court with directions to enter a judgment for appellee bank, finding that appellee had a first and prior mortgage lien, dated January 30, 1976, against the subject real estate, but only in the amount of $47,000.00 plus interest on that amount.
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Abbott, J.:
The issue in this case is whether the children of James E. Hegwald were “wholly dependent” on their father’s earnings (as required by K.S.A. 44-510b [Ensley]) at the time of his death. That question is one of fact. Richardson v. Robert Drummond Trucking, 204 Kan. 385, 390, 461 P.2d 754 (1969). Thus, the question before us is whether the trial court’s implied finding that the children were wholly dependent is substantially supported by the evidence.
The parents had been divorced for 18 months when the father died. He had been ordered to pay $200 per month child support, and had made one payment. Mrs. Hegwald had assigned her right to receive the child support payments to the Department of Social and Rehabilitation Services (SRS) from which she was receiving $364 per month. Mr. Hegwald had also paid three months’ rent of $160 per month, bought groceries for the children on a weekly basis and, on occasion, had bought them clothing.
Appellants make no contention the children’s total dependency is affected by any support from a source other than SRS. The mother was attending a trade school and apparently was financially unable to contribute to the support of the children prior to the death of their father. The father was under a legal obligation to support the children. Authorities are split as to whether that alone is sufficient to satisfy the “wholly dependent” requirement. 2 Larson, Workmen’s Compensation Law § 63.31. Kansas, however, requires something more.
In Wade v. Scherrer & Bennett Const. Co., 143 Kan. 384, 393-94, 54 P.2d 944 (1936), our Supreme Court said that a child’s claim for compensation is not necessarily defeated by the child’s being supported for a time prior to a worker’s fatal injury by relatives or friends or other sources that had no legal duty to do so. The court said a time might arise when a trial court would be justified in finding that the natural and legal dependency had no practical value. It reasoned that, although there could be proof a father was not presently supporting his minor child, the natural and legal dependency had value to the child. Based on evidence that as soon as the father’s health and employment permitted he intended to support the child, the Supreme Court affirmed the trial court’s finding that the minor was wholly dependent upon the deceased workman. In the case at bar, the father had paid one month’s child support and three months’ rent; he had purchased clothing and had furnished food as late as the day preceding his death.
In Carrington v. British American Oil Producing Co., 157 Kan. 101, 138 P.2d 463 (1943), the Supreme Court affirmed the trial court’s finding of total dependency where the children were being cared for by a friend of the deceased father. The father had orally promised to reimburse the friend for expenses incurred in caring for the children, but he had never done so. The court stated: “Independent of the oral agreement of the father ... to help support the two children by the first marriage, a legal duty to do so rested upon him.” 157 Kan. at 106.
In Thomas v. Bone, 191 Kan. 453, 381 P.2d 373 (1963), it was argued that a minor child was not wholly dependent on the father. He had not made child support payments as ordered by the trial court in the divorce action, and a stepfather was furnishing the bulk of the child’s support. The Supreme Court noted that the stepfather had no legal duty to support the minor child and could'withdraw his support at any time. The court stated that the natural father had a legal duty to support the child that could be enforced, and the child had a reasonable expectation of future support. We see no valid difference between the charity of a relative or a stepfather to support a child and the charity of federal contributions through SRS to temporarily support a child who “[h]as insufficient income or resources to provide a reasonable subsistence compatible with decency and health.” K.S.A. 39-709(a)(1).
We have examined the many authorities cited by appellant and believe them to be distinguishable in some instances on the factual findings and in others because they deal with social security payments.
The record reveals a natural and legal obligation on the father to support the children; that absent such support, the children were dependent upon charity; that the father had funds from which he could have supported and, to some extent, did indeed support the minor children. We find substantial competent evidence in the record from which the trial court could have found that the children had a reasonable expectation of support from the decedent’s earnings and were wholly dependent upon him for their support at the time of his death.
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Innes, J.:
This is an appeal from the declaratory judgment of the trial court by the intervenor James Warden. The plaintiff-appellee, Casualty Reciprocal Exchange, successfully sought declarations from the trial court which related to the appellee’s duties to the defendant, Donald N. Thomas, who was insured by the appellee under a homeowner’s policy which provided personal liability coverage.
Appellant Warden’s interest in this action stems from an April 1,1977, incident whereby he was injured as a result of being shot by a bullet from a handgun held and aimed at him by Thomas. The policy of insurance written by the appellee was in force on the date of the shooting. Following the filing of this action, Warden filed an action against Thomas for damages. An answer with general denial was timely filed on Thomas’ behalf. That action was then stayed, pending the outcome of appellee’s request for declaratory judgment in this action, relieving it from any obligation under the policy as a result of the shooting.
The contract of insurance between the appellee and Thomas included, in pertinent part, the following:
“This Company agrees to pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage, to which this insurance applies, caused by an occurrence. This Company shall have the right and duty, at its own expense, to defend any suit against Insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, but may make such investigation and settlement of any claim of suit as it deems expedient ....
“This policy does not apply:
“1. Under coverage E - Personal Liability Coverage F - Medical Payments to Others:
“f. To bodily injury or property damage which is either expected or intended from the standpoint of the Insured.”
The trial court’s findings of fact were as follows:
“On the evening of April 1, 1977, Thomas became highly upset over the conduct of juveniles who were having a party at a residence just north of his own. At about 8:15 on that evening, the Lansing Police Department dispatched a unit to Thomas’ residence due to a complaint by Thomas that the juveniles were driving cars through his lawn. During their conversation, Thomas told the officer that the next time such an incident happened, he was going to take care of the situation himself and then call the police. After speaking with Thomas concerning his complaints, the officer left to pursue a passing vehicle which Thomas had identified as one of those which had damaged his yard. The officer then returned to routine patrol. Following these events, one Bart Kosko backed his car onto Thomas’ driveway to allow another car to leave the party. After the other car had exited, as Kosko began to pull out of Thomas’ driveway, he heard a scraping noise at the back of his car. His car door was then yanked open and he was struck in the head by a pistol in Thomas’ hand. Thomas then pressed the gun against Kosko’s left temple. Thomas was in a state of uncontrolled anger. Almost immediately, James Warden ran up to within three to five feet of Kosko’s vehicle and stopped, with the open door between Thomas and Warden. Warden asked what was happening, but did not touch or make any contact with Thomas. Thomas turned the gun toward Warden with his arm extended. His arm did not bump or come into contact with anything. Thomas fired the gun and Warden fell to the ground.”
The trial court concluded that Warden’s injuries were intentionally caused by Thomas, and under the exclusionary clause of the policy the appellee had no duty to defend or indemnify Thomas.
The appellant argues that the trial court committed error by finding that (1) there was no duty to defend; (2) there was no duty to indemnify; and (3) there was no coverage under the policy.
As a general proposition the duty to defend under the policy is not parallel to coverage under the policy. The duty to defend arises whenever there is a potential of liability under the policy. If, based on all information known or reasonably ascertainable by the insured, there is a possibility of coverage under the policy, the insurer has a duty to defend. Spruill Motors, Inc. v. Universal Underwriters Ins. Co., 212 Kan. 681, 686, 512 P.2d 403 (1973). However, if there is no coverage under the policy there is no duty to defend. U.S. Fidelity & Guaranty Co. v. Continental Ins. Co., 216 Kan. 5, 8, 531 P.2d 9 (1975); Krings v. Safeco Ins. Co. of America, 6 Kan. App. 2d 391, Syl. ¶ 3, 628 P.2d 1071 (1981).
This declaratory judgment action was brought by the plaintiff to determine the question of coverage under the policy. The tort action against the insured has been stayed pending the outcome of this action. If it is determined here that there is no coverage, then there is no duty to defend. U.S. Fidelity, 216 Kan. 5; Krings, 6 Kan. App. 2d 391; Annot., 50 A.L.R.2d 458, § 2 (b); 20 Appleman, Insurance Law and Practice § 11354; 18 Couch on Insurance 2d § § 74:145-150. Therefore, the resolution of this issue depends on the resolution of the issue regarding coverage under the policy.
Similarly there is no duty to indemnify under the policy if there is no coverage. Again, this issue also depends on a resolution of the issue as to coverage under the policy.
The trial court’s findings of fact were that Thomas pointed a gun at the appellant and fired. The bullet struck and injured the appellant. Thomas did not touch or bump anything prior to firing at the appellant. These findings are not disputed on appeal, and will not be discussed beyond noting that the findings are supported by the evidence.
The court concluded, based on Rankin v. Farmers Elevator Mutual Insurance Company, 393 F.2d 718 (10th Cir. 1968), that appellant’s injuries were intentionally caused by Thomas and thus there was no coverage under the policy. The essence of the appellant’s argument here is that there was no evidence that Thomas intended to injure the appellant by his actions, citing Spruill Motors, Inc. v. Universal Underwriters Ins. Co., 212 Kan. 681, for the proposition that an unintended injury resulting from an intentional act would be covered. In Spruill, the defendants were towing away plaintiff’s pickup truck. Plaintiff attempted to stop them and alleged that in the process defendants drove over his foot. There the court indirectly recognized that an intentional act may result in an unintentional injury by saying that the intentional act of taking possession of the truck did not cause the injury, rather the cause was the manner in which the truck was being moved.
The facts there are distinguishable from this case, where here one person aimed a gun at another and fired it. Under these facts, to say that the act of aiming and firing the gun was intentional, but the injury was not, draws too fine a distinction. The better rule is found in Rankin, where it was held that where an intentional act results in injuries which are a natural and probable result of the act, the injuries are intentional.
This result follows from the well-established presumption in both tort and criminal law that persons are presumed to intend the natural and probable consequences of their actions. See Prosser, Law of Torts § 8 (4th ed. 1971); Restatement (Second) of Torts § 8A, comment (b); 86 C.J.S., Torts § 20; and PIK'Crim. 54.01. Although there are no Kansas cases directly on point, there are numerous cases in other jurisdictions. See Annot., 2 A.L.R.3d 1238, 1243, § 4(a), (b) and pp. 87-91 (1981 Supp.). It should be noted that although this is a rebuttable presumption or inference, there is no evidence here tending to rebut the presumption.
We believe that a liability policy provision excluding coverage for injuries expected or intended from the standpoint of the insured would exclude from coverage an injury in which it was shown that the insured injured another by aiming and firing a pistol at the injured person at close range, where there is no evidence offered in explanation that the insured had not intended or expected the injuries.
The trial court appropriately resorted to the presumption that persons are presumed to intend the natural and probable consequences of their actions. The trier of fact was free to accept or reject this inference of intent. The inference could be considered along with the other evidence in the case. The record is void of evidence that the injury was not intended or expected by the insured.
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|
Meyer, J.:
In this-workmen’s compensation appeal, we consider a settlement agreement entered into by Dell Henry Arduser (claimant) with Daniel International Corporation (respondent appellee, hereinafter referred to as the employer) and United States Fidelity and Guaranty (employer’s insurance carrier, hereinafter referred to as insurance carrier). At issue herein is whether that settlement agreement (admittedly for a sum far less than that to which claimant would otherwise be entitled) precludes claimant from now pursuing or continuing an action against appellee Kansas Workmen’s Compensation Fund (Fund). That is, does claimant have a direct action against the Fund, or is the Fund’s liability solely derivative of that of the employer so as to bar action against the Fund after claimant has settled its claim with the employer and insurance carrier, and such settlement has been approved by the workmen’s compensation examiner, by the administrative law judge, by the director, and the district court? The Fund was properly impleaded.
Four hearings were had herein: (1) formal settlement hearing before the examiner on January 27, 1977; (2) hearing before the administrative law judge on August 1, 1978, with its order dated September 29, 1980, regarding the Fund’s liability; (3) review by the director on September 29, 1980, as shown by his order dated November 6, 1980; and (4) approval by the district court of the director’s order.
The settlement agreement provided that claimant receive $13,071.10, which the parties to the agreement (viz. employer and claimant) agreed was in exchange for claimant’s agreement not to seek further compensation from the employer or insurance carrier. Both parties agreed that the settlement would not affect their respective rights against the Fund.
At the first hearing the settlement agreement was approved by the examiner; however, the examiner indicated he did not know what effect this settlement would have regarding liability of the Fund. The Fund took the position that it had no obligation to either the claimant or the employer.
At the second hearing, the claimant and the employer sought recovery against the Fund. The administrative law judge made findings of fact and conclusions of law to the effect that claimant had a 50 percent work-related disability. He also made findings that make it clear the Fund would have been liable for the full amount of liability to claimant, had it not been for claimant’s settlement with the employer and insurance carrier. Such findings are supported by the record. He also concluded that the Fund, because of claimant’s settlement with the employer and insurance carrier, was not liable for any additional payment to the claimant. His order, in this regard, included the following:
“5. That a careful review of K.S.A. 44-566 et seq. discloses no intention on the part of the Kansas Legislature to permit a direct action for compensation against the Kansas Workmen’s Compensation Fund by the claimant, but rather the intent as expressed is to promote and encourage employers to hire or retain in their employment persons possessed of certain physical or mental impairments as enumerated by K.S.A. 44-566(b). K.S.A. 44-567 speaks of relieving the employer of liability for compensation under either the ‘but for’ rule or by a contribution theory, and implies that liability against the employer must first be established. To establish employer liability for eompensation to the claimant, certain elements must be proved, e.g. notice, claim, and employer-employee relationship; and to hold that the Fund should be liable for additional compensation to the claimant over and above that awarded the claimant and against the respondent and insurance carrier, would require a finding that the Fund was an employer. This we are not inclined to do. Furthermore, the settlement entered into and approved by the Special Examiner on January 27, 1977 between the claimant and the respondent-insurance carrier not only extinguished all further rights to compensation by the claimant against the employer, but also served to effectively limit all potential liability of the Kansas Workmen’s Compensation Fund. Therefore, the claimant is not entitled to a further Award of additional permanent disability compensation not heretofore compensated, against the Kansas Workmen’s Compensation Fund, and that such should be denied the claimant.”
The Fund was required to reimburse the insurance carrier and employer for all amounts paid to the claimant.
On review, the workmen’s compensation director, by order dated November 6,1980, approved the administrative law judge’s order in its entirety, and specifically ordered that there was no liability against the Fund in favor of the claimant since the claimant’s rights against the Fund had been extinguished by the January 27, 1977, settlement between claimant, his employer and insurance carrier.
Thereafter, the District Court of Linn County, Kansas, sustained the director’s order.
Claimant contends the 50 percent permanent disability finding made by the administrative law judge computes to $41,416.30. We find no contention in the record that such computation was incorrect. Since claimant had^settled for $13,071.10, he contends he is now entitled to payment of the balance by the Fund, since the administrative law judge had found 100 percent liability of the Fund and that such 100 percent liability is based on uncontroverted evidence.
Claimant states the issue herein as follows: Whether an injured and permanently disabled workman is deprived of his right to be fully compensated by the workmen’s compensation fund for his injuries and resulting permanent disability due to acceptance of a portion of the compensation due him through settlement with the respondent and its insurance carrier although specifically reserving his rights as to the Fund at the time of settlement.
The Fund states the issue as follows: Whether or not a claimant in a second-injury type claim has a direct and independent action against the Fund even though the claimant has elected to extinguish all his rights under the workmen’s compensation act against the employer by settling his claim with the employer and releasing the employer from any further obligations under the Kansas workmen’s act via friendly hearing awarding the claimant a lump sum payment.
Regardless of how it is stated, the issue to be decided remains the same, that is: Can an action by a claimant be maintained or continued against the Fund after settlement between claimant and his employer? In other words, the question is whether the liability of the Fund is strictly and solely derivative from the liability of the employer.
Claimant’s reason for settling with the employer was his alleged economic necessity at the time. He had reason, however, to know or to consider the possibility that his settlement might negate his rights against the Fund. The examiner’s statements, as seen in the record, can be subject to the fair interpretation that the examiner did not know what the effect of his approving the settlement would have on the Fund’s liability, even though his order reserved claimant’s rights against the Fund.
The findings of the trial court with regard to the nature, extent and compensability of the injury are not made issues on appeal. Neither party disputes on appeal the finding of a 50 percent permanent disability, nor the finding that the Fund is liable for 100 percent of the disability benefits (but for the settlement) and that there should be no apportionment. Accordingly, the case presents a pure question of law and not of fact.
As heretofore stated, the Fund argues that its liability is strictly derivative from employer liability, and that under the statutes there is no direct and independent claim that lies on behalf of the claimant against the Fund.
The Kansas Supreme Court has been firmly committed to the rule of liberal construction of the workmen’s compensation act in order to award compensation to the workman where it is reasonably possible to do so and to make the legislative intent effective. See Brinkmeyer v. City of Wichita, 223 Kan. 393, 396, 573 P.2d 1044 (1978).
It is noted that in Safeway Stores, Inc. v. Workers’ Compensation Fund, 3 Kan. App. 2d 283, 286, 593 P.2d 1009 (1979), the court stated:
“Liberal construction is not afforded an employer against the Fund other than in those instances where a liberal construction would advance the legislative aim of encouraging the employment of handicapped persons.”
In the case at bar, we are not dealing merely with the apportionment of liability between the employer as against the Fund. The claimant herein has lost almost three-fourths of his compensation by reason of his compromise and the interpretation thereof by the director and the trial court
As stated in Brinkmeyer v. City of Wichita, 223 Kan. at 396-97:
“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 statutes. Legislative intent is to be determined by a general consideration of the entire act. Effect should be given if possible to the entire statute and every part thereof. To this end it is the duty of the court, so far as practicable, to reconcile the different provisions so as to make them consistent, harmonious and sensible. Easom v. Farmers Insurance Co., 221 Kan. 415, 421, 422, 560 P.2d 117. Where a statute is plain and unambiguous, this court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be. Lakeview Gardens, Inc. v. State, ex rel. Schneider, 221 Kan. 211, 214, 557 P.2d 1286. Where various provisions of an act conflict, this court should attempt to reconcile such provisions in order to make them harmonious and sensible. Jordan v. Doonan Truck & Equipment, Inc., 220 Kan. 431, 434, 552 P.2d 881.”
The statutes pertinent to the instant case are K.S.A. 1980 Supp. 44-566a, -567, -569, and -569a.
Claimant argues that his substantive right to an award against the Fund is granted by K.S.A. 1980 Supp. 44-566a(e)(l) and -569. K.S.A. 1980 Supp. 44-566a(e)(l) specifically provides that the workmen’s compensation fund is liable for payments of awards to handicapped employees. In a separate subparagraph, the workmen’s compensation fund is said to be liable for reimbursement of an employer or insurance carrier. K.S.A. 1980 Supp. 44-569 provides that when the director sets an award he shall award that amount due from the employer to the employee and also shall make an award setting forth the amount due to the employee to be paid from the Fund. K.S.A. 1980 Supp. 44-569(b) states that the commissioner of insurance shall cause payment to be made from the Fund to said employee in harmony with the award. In addition, the employer then could be reimbursed from the workmen’s compensation fund. K.S.A. 1980 Supp. 44-569(c). Therefore, the statutes allow for payments to be made directly to the employee from the Fund.
The Fund argues that the above provisions for payment are procedural only and do not grant a substantive right to the employee to proceed directly against the Fund. The Fund relies primarily upon K.S.A. 1980 Supp. 44-567 which gives an employer a right to be relieved of liability for compensation awarded if certain statutory requirements are met. The Fund notes specifically that in subsection (b) the employer is given the burden to prove that the employer had knowledge of the preexisting impairment and that unless the employer impleads the workmen’s compensation fund in a timely manner, it has no right to be relieved of liability for compensation awarded. K.S.A. 1980 Supp. 44-566a(c), however, specifically states that the commissioner of insurance may be made a party in this manner by any party to the proceedings in order to impose liability on the Fund.
We find nó Kansas cases directly in point. However, we note that in Safeway Stores, Inc. v. Workers’ Compensation Fund, 3 Kan. App. 2d 283, the court held that the Fund must be impleaded before the first full hearing in order to be liable for any portion of an award. In that case, the Fund was not impleaded in a timely manner, and full liability for the total award was placed on the employer and its carrier even though the disability was totally due to a preexisting condition. The employer lost his chance to shift the loss by failing to implead the Fund prior to the first full hearing. It is clear then that the employer is statutorily liable for the full amount of the disability award unless he can shift the loss. Thus, the claimant in this case had a right to full recovery against the employer at the time he settled, even for the portion attributable to a preexisting condition.
Clearly, the purpose of the legislature in setting up the Fund (originally the second injury fund) was to make it easier for handicapped persons to become employed because the employer would be relieved of its liability for compensation payments, either in whole or in part, when employing such persons. The obligation to make payments under the workmen’s compensation act is that of the employer. Note that K.S.A. 1980 Supp. 44-501 states in part:
“If in any employment to which the workmen’s compensation act applies, personal injury by accident arising out of and in the course of employment is caused to an employee, his or her employer shall be liable to pay compensation to the employee in accordance with the provisions of the workmen’s compensation act.” (Emphasis added.)
The purpose of creating first the second injury fund, and later the workmen’s compensation fund, was to encourage employers to hire the handicapped. Krauzer v. Farmland Industries, Inc., 6 Kan. App. 2d 107, 112, 626 P.2d 1223 (1981); Safeway Stores, Inc. v. Workers’ Compensation Fund, 3 Kan. App. 2d 283; Leiker v. Manor House, Inc., 203 Kan. 906, 457 P.2d 107 (1969). See also Madison v. Key Work Clothes, 182 Kan. 186, 318 P.2d 991 (1957); and Rush v. Empire Oil & Refining Co., 140 Kan. 198, 34 P.2d 542 (1934). Such encouragement lies, of course, in requiring the Fund to relieve the employer of certain liabilities which, but for the Fund, would be chargeable to him. This inducement to hire went to the employer. The Fund is not an employer.
In Stanley v. A & A Iron Works, 211 Kan. 510, 512, 506 P.2d 1120 (1973), the court stated:
“The second injury fund was created under the provisions of L. 1945, eh. 221, § 3 (now K.S.A. 1972 Supp. 44-568) and is funded by payments from insurance carriers and from legislative appropriations. In Leiker v. Manor House, Inc., 203 Kan. 906, 457 P.2d 107, this court pointed out that the purpose underlying the act creating the fund (K.S.A. 44-566, et seq., as amended) was to encourage the hiring of certain handicapped persons by relieving the employer in whole or in part from the payment of compensation benefits in limited situations, which is to say, when injury or death would not have resulted but for preexisting physical impairment, or where injury or death was contributed to by the preexisting impairment. (K.S.A. 1972 Supp. 44-567.) This laudable objective was re-emphasized in Hardwick v. General Motors Corporation, 206 Kan. 182, 476 P.2d 244. In both decisions the court pointed out that the burden of proving that disability or death was caused or contributed to by the preexisting handicap or impairment lies with the employer. ” (Emphasis added.)
We conclude that the holding in Stanley makes it clear the liability of the employer is direct, and that, by implication, the liability of the Fund is derivative only. Being derivative, it follows that no direct action against the Fund can be brought by an employee. Throughout the cases and the statutes, it is stated that it is incumbent on the employer to establish liability of the Fund. The employer must prove knowledgeable hiring, and indeed, where a claimant knowingly misrepresents his physical condition to the employer, the employer is credited just as though he possessed the knowledge himself. K.S.A. 1980 Supp. 44-567(c).
Furthermore, K.S.A. 1980 Supp. 44-569a provides as follows:
“Whenever in any proceedings on a claim for compensation the workmen’s compensation fund is a party respondent and the employer or insurance carrier has either voluntarily or by order of the director, paid disability compensation and/or furnished medical treatment for the injured workman, such employer or insurance carrier shall be entitled to reimbursement from the workmen’s compensation fund of such compensation and/or medical treatment to the extent said fund shall be determined to be liable for such disability compensation and/or medical treatment.” (Emphasis added.)
Appellant calls our attention to a number of places in the workmen’s compensation act where it is stated that the Fund, under certain circumstances, shall pay certain sums directly to the claimant. We conclude that such statements within the act are procedural as to when and how such payments are to be made, that same do not go to the merits as to who is primarily liable, and do not constitute authority for a claimant to proceed directly against the Fund.
There are cases from other jurisdictions which would support a conclusion that Fund liability is derivative.
Levi v. Special Indemnity Fund, 389 P.2d 620 (Okla. 1964), involved a proceeding against the second injury fund alone. The claimant had previously settled with the employer for a disability. After that the claimant sought to change the award under a provision which allows for modification of an award for worsening of a condition. Under the Oklahoma statutory scheme, the employer bears the whole responsibility for worsening of a condition attributable to the last injury alone, and the Fund picks up the apportionment as to disability which resulted from preexisting injury. The court held that claimant could not bring an action solely against the Fund on a motion to reopen the claim on an alleged change of his condition without determining the employer’s liability for the amount of change attributable to the last prior award against the employer. The court stated:
“Since it is the employer who, under the law, continues to bear full responsibility for all the legitimate consequences of the last accidental injury standing alone, the extent of disability therefrom presents an issue which must he initially resolved under a claim directed to the employer.” 389 P.2d at 621.
Further, the court stated:
“The Fund does not stand as a prime, original or substitute obligor. Rather, its liability is purely derivative, in the sense that it is derived or deduced from the anterior obligation of the employer, upon the extent of which it depends and which it merely supplements. [Citations omitted.] This liability does not attach unless and until the extent of the primary obligation, which is sought to be supplemented, stands judicially established by an award against the employer.” 389 P.2d at 622.
The court noted that the claimant was precluded by the previous settlement with the employer from procuring the prerequisite determination of additional primary liability of the employer.
In White v. Weinberger Builders, 397 Mich. 23, 242 N.W.2d 427 (1976), the employer and insurance carrier settled with a claimant without adjudication of liability. The second injury fund was held not liable for differential benefits. The court stated that liability of the second injury fund is derivative until the time of award so that the Fund cannot be subjected to a separate independent hearing as to liability for differential payments once the employer’s alleged prospective liability has been redeemed via negotiated settlement. 397 Mich, at 30.
Cabe v. Popham, 444 S.W.2d 910 (Ky. 1969), involved a settlement between employee, employer, and third-party tort-feasor, whereby employer was released from any further liability to employee under the workmen’s compensation award. Said settlement was held to release the special fund from liability to the employer and from liability to the employee for the unpaid balance. Under the statutory scheme in Kentucky, that portion of an award attributable to the special fund should be paid to the employee by the employer or employer’s carrier initially, which is then reimbursed by the special fund. It is noted that the employee received a sum from the tort-feasor in excess of the unpaid balance of the award. An employer is entitled by statute to reimbursement by a third-party tort-feasor if said tort-feasor is held liable for any indemnity paid or payable to the employee.
Contra, Grant v. Neal, 381 S.W.2d 838 (Mo. 1964).
We conclude that the Fund’s liability is derivative from that of the employer, and that no action can be maintained directly against the Fund by an employee. It follows that where, as here, a complete settlement has been reached between claimant and his employer, and where such settlement has been approved by the director and the district court, claimant is precluded from any further action against the Fund.
Affirmed. | [
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|
Woleslagel, J.:
Defendant Nationwide Life Insurance Company appeals from a grant of summary judgment to the plaintiffs-appellees on their claim for death benefits under a group life insurance contract paid for by Clifford E. Bingham’s employer. Plaintiffs, the Binghams, are the named beneficiaries under the policy. Nationwide also appeals from the allowance of attorney fees pursuant to K.S.A. 40-256 upon a finding that it had “refused without just cause or excuse to pay the full amount” of benefits provided by the policy.
The estate of Clifford E. Bingham originally was one of the plaintiffs, but the final order entered by the trial court held it was not an entity entitled to any benefits as the only beneficiaries designated by the decedent are the two individual plaintiffs. It is therefore not a party to this appeal.
We affirm the trial court both as to its finding regarding benefits and as to its allowance of attorney fees to the Binghams’ attorneys.
The issues, as stated by Nationwide, are:
1. “At the time of his death, was Mr. Bingham eligible for coverage under the Nationwide group life and health insurance policy?” (This issue turns on whether he was “regularly employed” at the time the policy went into effect.)
2. “Did Mr. Bingham’s representation of health and eligibility void any claim of Nationwide insurance coverage which he might have otherwise had?”
3. “In its decision to award attorney fees, did the trial court err in finding that Nationwide denied benefits ‘without just cause or excuse’ pursuant to K.S.A. 40-256?”
We note first that in passing on the validity of a summary judgment, the record must be read in the light most favorable to the party who resisted the motion. Collier v. Operating Engineers Local Union No. 101, 228 Kan. 52, Syl. ¶ 2, 612 P.2d 150 (1980). While our determination must give due regard for the principle just stated, the controlling facts are based on pleadings, depositions, and other written evidence. This results in our being afforded the same opportunity as the trial court to consider the evidence and determine what the facts establish. J & W Equipment, Inc. v. Weingartner, 5 Kan. App. 2d 466, Syl. ¶ 2, 618 P.2d 862 (1980); Clark Equip. Co. v. Hartford Accident & Indemnity Co., 227 Kan. 489, 491, 608 P.2d 903 (1980).
There is one final approach required of us in looking at one of the parts of the record in this case. Nationwide seeks to ameliorate the possible significance of a letter written by one of its claims managers by claiming it was written pursuant to settlement negotiations. This is disputed by the Binghams. We cannot consider the bare assertions of either counsel. Rather, we observe that while Supreme Court Rule 3.02 (228 Kan. xl) requires the clerk of the district court to compile the basic record on appeal, if Nationwide had anything of record to support its position in this regard, it would be additional to the items that the clerk is directed to include as enumerated in Rule 3.02. Under this circumstance, it would appear that it was incumbent on Nationwide to designate sufficient record to support its claim. This is so if a claim of error is being made, Farmers Ins. Exchange v. Schropp, 222 Kan. 612, Syl. ¶ 8, 567 P.2d 1359 (1977); Frevele v. McAloon, 222 Kan. 295, 299, 564 P.2d 508 (1977). It would seem to follow that the same obligation would fall on one seeking to support a favorable contention as would fall on one seeking to support a claim of error. We will therefore consider the letter for what it appears to us to show upon its face. That will be discussed in the final part of this opinion which deals with the question of allowance of attorney fees.
Undisputed Facts
Clifford E. Bingham died of cardiac arrest on November 16, 1977. He had worked for Merriam Motors continuously since 1964, serving as its business manager since about 1966. John M. Garlich was president of the company, and he, with a St. Louis, Missouri, partner, owned a number of car dealerships.
It had been Mr. Garlich’s practice to arrange for group health and life insurance on employees of the dealerships and he sometimes changed insurance companies if comparative terms favored a change when a policy was about to expire. A policy with Capital Life was to expire on November 1, 1977. Through the efforts of an insurance broker, he had arranged for that policy to be replaced with a policy providing the same coverages and sold by Nationwide. This transaction was completed in early October, 1977. Mr. Garlich understood the new policy would continue the coverage that had been provided by Capital Life with four classifications of certificate holders: one for presidents and managers, one for salesmen and service advisers, with the last two classifications based solely on amount of annual earnings. The policy did provide those classifications, and the first classification specified $40,000 of life insurance for presidents and managers. The premium was nonparticipating as to individuals covered, and on October 26 the company paid the Nationwide premium. It was Mr. Garlich’s understanding that the new policy would automatically cover all employees on November 1 and that no one would have to furnish proof of insurability.
Mr. Bingham had had a heart attack on August 24, 1977, and was in a hospital until September 27. He then recuperated at home until about October 26. Throughout this two-month period Mr. Garlich expected him to give advice and information through phone calls and personal visits with another employee, who did the balance of the managerial work at the company office. Mr. Garlich’s expectations as to this handling of the managerial business were carried out by these two employees.
About October 26 Mr. Bingham started spending a part of his days at the office and was spending full days there no later than November 7. During all this period, and until his death nine days later, Mr. Garlich considered Bingham to be on the job and paid him full salary as a regular employee occupying the position of manager.
While the insurance broker knew about Mr. Bingham’s heart attack and absence from the office, there is nothing in the record to indicate this was passed on to Nationwide by anyone. The record does not indicate for which party he was agent, and we make no supposition in this regard. Nationwide had a practice of having certificate holders sign group enrollment cards and they were delivered to Merriam Motors on October 19. An employee filled out and signed the one for Mr. Bingham. No claim of either benefit or prejudice is made by either party as to the handling of this card.
Nationwide had an additional practice of having employees designated “Class A,” those insured for $40,000.00 or more, sign “Supplemental Enrollment Cards.” The St. Louis representative of Nationwide who submitted the bid for this policy overlooked getting these cards signed by November 1. On November 7 he drove to Merriam Motors with the intent of getting them signed. Of this class, only Mr. Bingham was in the office that day and he signed it. Nationwide contends it contained significant misrepresentation and the language of it will appear in the part of this opinion under the heading Policy Provisions and Supplemental Enrollment Card.
Nationwide’s first claim of either irregularity or limitation as to Mr. Bingham’s coverage was made on November 18, two days after his death. On January 6, 1978, Mr. Garlich submitted Nationwide’s form for proof of death. On March 24, 1978, a claims manager for Nationwide forwarded to Mr. Garlich its draft for $15,000.00 payable to Mr. Bingham’s estate. The draft was never negotiated for payment. The letter mentioned earlier accompanied this draft.
Policy Provisions and Supplemental Enrollment Card.
The material provisions of Nationwide’s policy are:
“ ‘Insured Person’, with respect to each benefit provision hereunder, means either a Certificateholder or a Dependent for whom the Schedule of Benefits indicates that coverage under that benefit provision is provided, but only during the period he is insured thereunder as determined under all other applicable provisions of the Policy.
“ ‘Regularly Employed’ means continuously employed by the Policyholder for at least 30 hours each week.
“The effective date of insurance for an eligible person will be the first of the policy month coinciding with or next following the date he becomes an eligible person. “If an eligible person is not actively at work on the date his insurance would otherwise become effective, his insurance will not become effective until the date he returns to active work.
“INCONTESTABILITY. ... No statement made by a Certificateholder relating to his insurability will be used in any contest unless (a) it is contained in a written application signed by him, and (b) a copy of the application has been furnished to him or to his beneficiary.
“ENTIRE CONTRACT - CHANGES. The Policy and the application of the Policyholder, a copy of which is attached hereto, together with the Certificateholder’s applications, if any, submitted in connection herewith, constitute the entire contract between the parties, and any statements made by the Policyholder or by any Certificateholder will, in the absence of fraud, be deemed representations and not warranties. No such statement will avoid the insurance or reduce benefits under the Policy or be used in defense of a claim hereunder unless it is contained in a written application and a copy of such application is or has been furnished to the person or to his Beneficiary, if any.”
Because of the claims made by Nationwide as to the significance of the Supplemental Enrollment Card, it is set forth in full:
“I UNDERSTAND THAT IN ORDER TO BECOME INSURED FOR THE GROUP LIFE INSURANCE FOR WHICH I AM ELIGIBLE IN ACCORDANCE WITH THE TERMS OF THE GROUP POLICY ISSUED OR TO BE ISSUED BY THE NATIONWIDE LIFE INSURANCE COMPANY, I MUST MAKE WRITTEN ELECTION THEREFOR AND MUST SATISFY THE CONDITIONS IN THE FOLLOWING STATEMENT:
T am on the date this statement is signed, actively at work for my employer on a full-time basis and physically able to perform all the duties of my occupation. I regularly work at least the number of hours in my employer’s normal work week, but not less than 30 hours per week, at the employer’s business establishment or other locations to which the employer’s business requires me to travel. During the past four weeks I have not been absent from work on account of my own sickness or injury.’
“I HEREBY MAKE ELECTION FOR THIS INSURANCE AND CERTIFY THAT THE FOREGOING CONDITIONS ARE TRUE AS TO ME.”
Kansas Statutes Applicable
K.S.A. 40-434 provides in part:
“No policy of group life insurance shall be delivered in this state unless it contains in substance the following provisions, or provisions which in the opinion of the commissioner are more favorable to the persons insured, or at least as favorable to the persons insured and more favorable to the policyholder ....
“(4) A provision setting forth the conditions, if any, under which the insurer reserves the right to require a person eligible for insurance to furnish evidence of individual insurability satisfactory to the insurer as a condition to part or all of his coverage.”
K.S.A. 40-256 in part provides:
“That in all actions hereafter commenced, in which judgment is rendered against any insurance company . . . if it appear 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 proceedings upon appeal, to be recovered and collected as a part of the costs: Provided, however, That when a tender is made by such insurance company, society or exchange before the commencement of the action in which judgment is rendered and the amount recovered is not in excess of such tender no such costs shall be allowed.”
Coverage Was Provided For Mr, Bingham
Nationwide contends that its policy only covered employees who worked thirty hours each week in the month before November 1 and that this excluded coverage for Mr. Bingham. As a general rule, construction and effect of a contract of insurance is a matter of law to be determined by the court. Anderson v. Nationwide Life Ins. Co., 6 Kan. App. 2d 163, 165, 627 P.2d 344, rev. denied 229 Kan. 669 (1981), following Scott v. Keever, 212 Kan. 719, 512 P.2d 346 (1973). What an insurance company intends or may think its language means is not the test. Anderson at 166. Rather, the intent of the policy is to be determined by considering language of the whole instrument, taking into account the situation of the parties, the nature of the subject matter, and the purpose to be accomplished. Mah v. United States Fire Ins. Co., 218 Kan. 583, 545 P.2d 366 (1976). The purpose of this policy was to carry forward the same coverage that Capital Life had furnished. That included coverage on Mr. Bingham’s life.
Neither is the language of a policy to be given a strained interpretation. Instead, the test is what a reasonable person in the position of the insured would have understood the language to mean. Casey v. Aetna Casualty & Surety Co., 205 Kan. 495, Syl. ¶ 4, 470 P.2d 821 (1970). We find nothing in the policy to suggest to any reasonable person that this policy would not do what was intended: to carry forward the coverage Capital Life had provided. As stated in 13 Appleman, Insurance Law & Practice § 7426, p. 384: “Forfeitures of life insurance contracts are not favored, and should only be permitted when expressed in clear and unmistakable terms.” See also Polan, an Infant, v. Travelers Ins. Co., 156 W.Va. 250, 192 S.E.2d 481 (1972).
While diligent counsel for each side have cited many cases to us, we have been unable to find any Kansas cases interpreting language similar to the Nationwide policy. The cases from other jurisdictions relied upon by Nationwide are not in point since they concern either employees who were not paid while away from their usual work station, or the policy provisions in those cases contained clear and broad exclusionary language. See First Pa. B. and T. Co. v. United States Life Ins. Co., City of N. Y., 421 F.2d 959 (3rd Cir. 1969) (policy excluded persons who “do not work at least thirty hours per week,” and plaintiff conceded its decedent’s work was “irregular”); White v. Massachusetts Mutual Life Insurance Co., 275 Ala. 581, 157 So. 2d 6 (1963) (doctor was not “actively at work . . . full time” when his records
failed to show any services or charges and he was not paid by his firm); Kolligian v. Prudential Ins. Co., 353 Mass. 322, 231 N.E.2d 381 (1967) (policy excluded those “absent from work due to illness or injury”); Minnick v. Federated Life Ins. Co., 53 Tenn. App. 1, 378 S.W.2d 189 (1963) (employee drew no salary and went to store occasionally as her health would permit); Rabinovitz v. Travelers Insurance Co., 11 Wis. 2d 545, 105 N.W.2d 807 (1960) (included employee must work “at his customary place of employment”).
Neither has our search of cases from other jurisdictions led us to any one case so nearly in point that it might be termed a “bay horse case.” Taken together, however, the cases do cover the issues included here. As stated in 1 Appleman, Insurance Law & Practice § 44 n. 13.15, p. 75 (1980 Supp.), “[Ajctive and full time employment must be judged with reference to duties of services of particular employee in question and relations and transactions between employer and employee and it is not essential to full time employment that such employee be regularly and continuously at a particular place such as the employer’s office.” See also Roby v. Connecticut General Life Ins. Co., 166 Conn. 395, 349 A.2d 838 (1974), which involved a claim arising when a tenured and full-time compensated teacher was on vacation.
To like effect is Augusta v. John Hancock Ins. Co., 11 Misc. 2d 111, 170 N.Y.S.2d 908 (1958), which held that an employee, though in a hospital, was actively'at work if he actively made decisions and gave directions and instruction relative to the business. This is precisely what Mr. Bingham did while in the hospital and at home.
As stated in Morris v. Mutual Benefit Life Ins. Co., 258 F. Supp. 186 (N.D. Ga. 1966), a provision that an employee, to be covered, must work a 30-hour week, must be interpreted to relate to what time he put in, as an average, not what time he put in on any particular week. There, the policy provided coverage to “Each active, full-time employee, except any such person employed on a temporary basis” and “For the purposes of this policy, any person who works less than 30 hours per week shall not be considered a full-time employee.” Nationwide states part of the reason for its similarly restrictive language was to disqualify part-time employees; we conclude that was the only purpose.
Great-West Life Assurance Company v. Levy, 382 F.2d 357 (10th Cir. 1967), also a group policy case, was jury tried. The jury was instructed that the burden was on the insurer to void such a policy and it had the burden of proving the deceased was not an employee. It was also instructed that it was not necessary that “an employee be regularly and continuously at a particular place, such as the employee’s office.” These instructions were approved on appeal.
To like effect is the case of Williams v. Metropolitan Life Ins. Co., 448 S.W.2d 295 (Mo. App. 1969), where an employee was considered “actively at work” on the date of eligibility for coverage if he was at the usual place of employment or otherwise working at his employment under the direction and supervision of his superiors.
We conclude Mr. Bingham was an eligible, full-time employee working thirty hours a week as the Nationwide policy must be interpreted, and he was a covered employee as of November 1, 1977 under Nationwide’s policy.
Nationwide contends the Supplemental Enrollment Card signed by Mr. Bingham voided the policy as to him because of fraudulent misrepresentation. This requires little comment. The Supplemental Enrollment Card was not a warranty under the policy; it was not effective unless a copy was delivered to Mr. Bingham or his beneficiary. The record does not show this was done. Also, his insurance was already effective seven days before this card was presented to him. Finally, the taking of the card violated the spirit, if not the precise provision, of K.S.A. 40-434, as the policy contained no conditions setting forth a reservation of the right to require such cards. The Kansas statute is consistent with the distinctive character of group employee insurance in that “the individual employees are not required to submit applications individually.” Prudential Ins. Co. of America v. Jenkins, 290 Ky. 802, 806, 162 S.W.2d 791 (1942); United States v. Markowitz Bros. (Delaware), Inc., 383 F.2d 595 (9th Cir. 1967).
Attorney Fees Are Warranted
Whether or not attorney fees should be awarded under K.S.A. 40-256 is a judgment matter, and accordingly the determination may often be one very hard to make. In this case, it is not difficult. In spite of the diligent efforts of capable counsel, Nationwide is not able to support what we find was a strained position it took as to how it interpreted the policy it wrote, and which eventually caused its counsel to take a similar position. The authorities we have cited lead us to conclude that Nationwide was never in possession of any facts or inferences that would come close to meeting its burden of proving its policy did not cover Mr. Bingham.
The tests are reviewed in Clark Equip. Co., 227 Kan. at 493-94, Anderson v. Nationwide Life Ins. Co., 6 Kan. App. 2d at 169-70, and in Brown v. Combined Ins. Co. of America, 226 Kan. 223, 226-27, 597 P.2d 1080 (1979). From these cases, and cases cited therein, we hold that the burden of showing entitlement here lies with the Binghams. Also, we recognize that, taking these facts and this policy, the case is one of first impression in Kansas. This brings into play the directive that this factor is one that may justify, or help justify, an insurance company’s refusal to pay. Hand v. State Farm Mut. Auto. Ins. Co., 2 Kan. App. 2d 253, 261, 577 P.2d 1202, rev. denied 225 Kan. 844 (1978).
In this case, however, the lack of substantial defense to the Bingham claim is colored significantly by the letter referred to earlier. The Binghams suggest the letter worked a waiver of liability or an estoppel to deny liability on the part of Nationwide. We did not reach that contention as, under our view, a determi nation of the case in favor of the Binghams was mandated on more substantial grounds. We do, nevertheless, consider the letter material in deciding if attorney fees should be awarded to the Binghams. The letter was sent to Mr. Garlich on March 24, 1978, and was written by a “Special Claims Manager.” This is the body of the letter:
“Dear Mr. Garlich:
We are pleased to enclose our draft in the amount of $15,000 representing the Life Insurance Benefits applicable under your Group Insurance Policy GE-6715-L for Clifford E. Bingham.
The benefits under this case were made payable to Mr. Bingham’s Estate since he did not complete and sign the Nationwide Insurance Company’s enrollment card designating a beneficiary. Further, the maximum Life Insurance Benefits applicable under your Group Insurance Policy for Mr. Bingham is $15,000, base amount of Life Insurance Benefits since he was absent from work on account of his sickness within the four week period prior to the effective date of his insurance under your policy.
We hope that this explains our handling of this claim, however, if you should have any questions, please let us know.
Very truly yours,
/s/
Ralph H. George
Special Claims Manager”
Mr. Bingham was a Class A ($40,000.00) insured or he was not insured at all. Nationwide attempts to justify one of its positions by stating the language of its policy was to exclude part-time employees. If the letter was an attempt to create that class of employees, it was contrary to an admitted principle of the policy. We stated earlier that we are required to interpret the letter on its face. On its face it appears to be an attempt to buy a $40,000.00 liability for $15,000.00.
Affirmed, but remanded to the trial court to allow an additional reasonable fee for this appeal. | [
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Foth, C.J.:
Defendant Roy Nesseth appeals from a default judgment rendered against him for $9,326.06 actual and $100,000.00 punitive damages for fraud in the leasing of an automobile to plaintiffs. He raises three contentions: (1) Default should not have been ordered as a sanction for his refusal to permit discovery; (2) he was given inadequate notice of the proposed entry of the default judgment; and (3) the punitive damages were excessive.
The facts are set out in the journal entry of judgment and are undisputed:
“2. At all times material hereto, Dr. Kernie W. Binyon, was the sole owner of Kernie W. Binyon, P.A.
“3. Dahlinger Fleet Leasing, Inc., is not and never has been a corporation, but is an assumed name under which Dahlinger Pontiac-Cadillac, Inc., hereafter called Dahlinger, has done business.
“4. On July 15, 1976, Dr. and Mrs. Binyon went to the principal place of business of Dahlinger, to attempt to purchase a new Cadillac. After discussing the proposed purchase with Jack Lindsey, hereafter called Lindsey, an employee of Dahlinger, Dr. and Mrs. Binyon inquired as to the cost of leasing said automobile. Lindsey told Dr. and Mrs. Binyon that he did not have any authority to commit Dahlinger on a lease and took them to James R. Cole, an employee of Dahlinger, who was authorized to enter into leases of automobiles on behalf of Dahlinger.
“5. After discussions between Mr. Cole and Dr. and Mrs. Binyon, on July 15, 1976, at some time after 5:00 p.m., Dahlinger agreed to lease to and Dr. and Mrs. Binyon agreed to lease from Dahlinger, a 1976 Cadillac Fleetwood El Dorado, hereafter called said Cadillac, for a monthly rental of Three Hundred Seventy-one Dollars Forty Cents ($371.40), for a period of two (2) years, on the condition that Dahlinger was to pay the Personal Property Taxes on said Cadillac during the lease and was to furnish to Dr. and Mrs. Binyon a license tag for said Cadillac, and at the expiration of said lease, Dr. and Mrs. Binyon were to have the right to purchase said automobile for Five Thousand Two Hundred Dollars ($5,200.00).
“6. At the time the lease mentioned in the immediately preceding paragraph was made, it was after 5:00 p.m., and all of the clerical employees of Dahlinger had left for the day. At the request of Dahlinger, Dr. and Mrs. Binyon signed a printed form lease, without any of the blanks or the terms and conditions of said lease being completed, upon the representation of Dahlinger that the lease would be completed in accordance with the terms contained in the immediately preceding paragraph, and Dr. and Mrs. Binyon left the agency with said Cadillac.
“7. On July 15,1976, said Cadillac was a new automobile, was not covered by a Certificate of Title and did not have a license tag attached thereto. Dahlinger furnished Dr. and Mrs. Binyon dealers’ stickers that permitted them to drive said Cadillac, for several weeks from and after July 15, 1976, at which time Dahlinger furnished Dr. and Mrs. Binyon a license tag for said Cadillac.
“8. Dr. and Mrs. Binyon timely made all twenty-four (24) of the monthly payments required by said lease.
“9. At all times material hereto, Roy Nesseth, hereafter called Nesseth, was the principal owner and operator of Dahlinger and had the complete control thereof.
“10. Shortly after July 15, 1976, Nesseth was informed of the terms and conditions upon which Dahlinger had leased said Cadillac to Dr. and Mrs. Binyon. When he was so informed, Nesseth stated to some employees of Dahlinger that he thought that Dr. and Mrs. Binyon should be required to pay the Personal Property Taxes on said Cadillac and for the license tags used thereon. Nesseth never communicated this thought to Dr. or Mrs. Binyon. The employees of Dahlinger told Nesseth that the lease to Dr. and Mrs. Binyon provided that Dahlinger was to pay said Personal Property Taxes and for the license tags for said Cadillac.
“11. Dahlinger received monthly lease payments from Dr. and Mrs. Binyon, without advising them that Nesseth thought they should pay the Personal Property Taxes on said Cadillac and for the license tags thereon.
“12. During October of 1976, for valuable consideration paid in cash to Dahlinger, Nesseth executed documents assigning the monthly payments due under said lease and, in the event Dr. and Mrs. Binyon exercised the option to purchase said Cadillac, the above-mentioned Five Thousand Two Hundred Dollars ($5,200.00), to General Motors Acceptance Corporation, hereafter called G.M.A.C.
“13. During the first part of 1978, the license tag for said Cadillac furnished to Dr. and Mrs. Binyon by Dahlinger expired. Dr. and Mrs. Binyon requested Dahlinger and Nesseth to furnish them a current license tag. Nesseth refused to do so. Dr. and Mrs. Binyon attempted to purchase tags, but could not do so because the Personal Property Taxes on said Cadillac had not been paid. Dr. and Mrs. Binyon attempted to pay the Personal Property Taxes on said Cadillac, in order that they could purchase a license tag, but they could not legally pay said Personal Property Taxes.
“14. Dr. and Mrs. Binyon were deprived of the use of said Cadillac from May of 1978 to February of 1980, because it was not legal to drive the same without license tags thereon.
“15. Through the intervention of this Court, G.M.A.C. finally received a Certificate of Title to said Cadillac and, during February of 1980, assigned said Certificate of Title to Dr. and Mrs. Binyon, upon the payment of the above-mentioned Five Thousand Two Hundred Dollars ($5,200.00).
“16. During the time that Dr. and Mrs. Binyon were deprived of the use of said Cadillac, by the foregoing wrongful acts of Nesseth, they put said Cadillac in storage, which cost them Seven Hundred Thirty-five Dollars ($735.00); they kept said automobile insured against fire and theft, which cost them Five Hundred Eleven Dollars Twenty Cents ($511.20); and they were deprived of the use thereof, which had a fair and reasonable value of Seven Thousand Eight Hundred Seventy-five Dollars ($7,875.00).
“17. During the terms of said lease, on numerous occasions, Mrs. Binyon requested Dahlinger to furnish her the warranty book covering said Cadillac, which would have permitted certain repairs to be made without charge to Dr. and Mrs. Binyon. Nesseth refused and failed to furnish said warranty book to Dr. and Mrs. Binyon. During the term of said lease, Dr. and Mrs. Binyon were required to pay Two Thousand Four Dollars Eighty-six Cents ($2,004.86) for repairs on said Cadillac, which they would not have been required to pay if Dahlinger had furnished them said warranty book.
. . . .
“27. Although Nesseth knew that said Cadillac had been leased to Dr. and Mrs. Binyon on the basis that Dahlinger would pay the Personal Property Taxes on said Cadillac and for the license tags thereon, and although the final completed version of the lease on said Cadillac retained by Dahlinger in its files provided that Dahlinger was to pay said Personal Property Taxes and for said license tags, Nesseth caused a lease to be completed and furnished to Dr. and Mrs. Binyon that provided that Dr. and Mrs. Binyon were to pay said Personal Property Taxes and for said license tag, for the purpose of defrauding and misleading Dr. and Mrs. Binyon.
“28. The foregoing acts, omissions and refusals to act of and by Nesseth, were done maliciously, fraudulently and willfully, with total and wanton disregard for the rights of Plaintiffs, were oppressive and unlawful and were done for the purpose and intent of defrauding Plaintiffs, for his own personal benefit and gain.
“29. At all times material hereto, Nesseth has controlled Dahlinger; as the alter ego of Dahlinger, Nesseth has, at all times material hereto, conducted, managed and controlled the affairs of Dahlinger as though it were his own business; at all times material hereto, Nesseth has diverted funds and assets of Dahlinger to his own personal use; and at all times material hereto, Nesseth has used Dahlinger for the purpose of defrauding Plaintiffs and others similarly situated.”
I. Sanctions
The following chronology of events led to the declaration of default:
August 4, 1978, suit filed.
December 18, 1978, answer and counterclaim of the corporate defendant Dahlinger Pontiac-Cadillac, Inc.
January 11, 1979, plaintiffs serve and file interrogatories, request for admissions, and request for production and inspection, together with notice to take deposition of Nesseth which was filed on January 12.
January 9, 1979, personal service on Nesseth.
February 8, 1979, answer and counterclaim of Nesseth.
February 21, 1979, plaintiffs’ motion to compel discovery.
February 22, 1979, answers to interrogatories, etc., signed only by Nesseth’s counsel. Many were not answered because counsel lacked the necessary knowledge.
March 2, 1979, first order to Nesseth, to be deposed on March 5 and answer interrogatories and produce documents by March 8.
March 7, 1979, Nesseth’s time extended by order to March 13.
March 13, 1979, Nesseth’s deposition adjourned when Nesseth asks his counsel to object to any more questions and counsel directs him not to answer any more questions.
March 14, 1979, order to Nesseth to answer questions.
March 23, 1979, Nesseth ordered to answer interrogatories and request for admissions by March 29.
March 30, 1979, Nesseth ordered to answer interrogatories and request for admissions by April 12, 1979, be deposed on April 26, 1979.
April 13, 1979, second order to Nesseth to be deposed on April 26, 1979.
April 20, 1979, order to Nesseth to file answers and produce specified documents by May 11, and to be deposed during week of May 21, 1979. The court found two weeks to be ample time to produce the documents but permitted three; remarked on Nesseth’s previous recalcitrance and plaintiffs’ patience; and specifically admonished Nesseth’s counsel to warn him that failure to comply would result in sanctions. Petition amended to add charge of fraud and prayer for punitive damages.
May 11, 1979, Nesseth’s answers to interrogatories filed.
May 14, 1979, plaintiffs’ motion for sanctions filed.
June 8, 1979, motion for sanctions heard. The court noted that even though Nesseth had responded to the interrogatories the answers were evasive and incomplete, much like the answers given in his deposition. The court specifically found:
“I do think that sanctions are appropriate and I think severe sanctions are appropriate in this matter because my sense of it is that Mr. Nesseth has, with some deliberation and action on his part, attempted to frustrate the progress of the lawsuit by frustrating the discovery . . . .” Emphasis added.
The court went on to strike the defendant’s answer and counterclaim and ruled he would not allow Nesseth to introduce evidence or present any defense in opposition to default judgment to be considered by the court at a future time with evidence.
The general principles governing sanctions for refusal to make discovery were well summarized in Lorson v. Falcon Coach, Inc., 214 Kan. 670, 522 P.2d 449 (1974):
“In determining the sanctions to be imposed under K.S.A. 60-237 for the failure of a party to comply with rules of discovery, the presence or lack of good faith is relevant to the orders which should be given and the severity of the sanctions imposed.”
“The sanction of judgment by default for refusal to make discovery under K.S.A. 60-237 is the most severe sanction which a court may impose and its use must be tempered by the careful exercise of judicial discretion to assure that imposition thereof is merited. However, where there is evidence that a party has acted in deliberate disregard of reasonable and necessary orders of a court, and where such party is afforded a hearing and an opportunity to offer evidence of excusable neglect, the imposition of a stringent sanction will not be disturbed.” Syl. ¶¶ 2 and 3.
See also Vickers v. City of Kansas City, 216 Kan. 84, 531 P.2d 113 (1975); Williams v. Consolidated Investors, Inc., 205 Kan. 728, 472 P.2d 248 (1970); Mansfield Painting & Decorating, Inc. v. Budlaw Services, Inc., 3 Kan. App. 2d 77, 589 P.2d 643, rev. denied 225 Kan. 844 (1979); Fields v. Stauffer Publications, Inc., 2 Kan. App. 2d 323, 578 P.2d 1138, rev. denied 225 Kan. 843 (1978); Prather v. Olson, 1 Kan. App. 2d 142, 562 P.2d 142 (1977).
To the general principles Fields adds that the ultimate sanction of default is justified when, to bad faith, there are added that (a) the information sought is dispositive of the issue and (b) it cannot reasonably be acquired through alternative means. 2 Kan. App. 2d at 329. See also Independent Mfg. Co. v. McGraw-Edison Co., 6 Kan. App. 2d 982, 637 P.2d 431 (1981).
Here the information sought included the dealership’s copy of the lease contract demonstrating the fraudulent alterations, documentation of Nesseth’s relationship with the corporate defendant which would justify piercing the corporate veil, and the certificate of title to the Cadillac. All were essential to plaintiffs’ case; all were in Nesseth’s control — at least until he passed the certificate of title on to GMAC. The other documents he claimed to have given to a bookkeeper in Arizona, whose address he could not furnish.
We conclude that all the prerequisites for imposing the sanction of default were present: There was a deliberate and contemptuous disregard of the discovery orders; the documents sought related to dispositive issues; they were not otherwise available; and the defendant was afforded a hearing at which he could have offered evidence of excusable neglect.
In his brief Nesseth now asserts that the documents sought went only to the punitive damage and personal liability issues injected into the case for the first time on April 20, and he should therefore have had more time to produce them. This ignores the fact that the ultimate order of April 20 also encompassed “all documents mentioned in Plaintiffs’ Interrogatories, Requests for Admissions and Request for Production and Inspection.” These documents had been sought without success for some five months. In addition, the “personal liability-alter ego” issue had been in the case at least since the abortive attempt to depose Nesseth on March 13. Plaintiffs’ efforts to secure evidence on that issue had furnished the excuse for breaking off the deposition. The inference is that Nesseth did not intend to disclose the nature of his dealings with the corporate defendant.
We find no abuse of discretion in the sanction imposed.
II. Notice of Default
The order imposing sanctions on June 8, 1979, was entered under K.S.A. 60-237(fi)(2)(B) and (C). It provided in part:
“1. The Answers and Counterclaims of Dahlinger Pontiac-Cadillac, Inc., and Roy Nesseth are stricken.
“2. Dahlinger Pontiac-Cadillac, Inc., and Roy Nesseth are prohibited from presenting any claims herein and asserting any defenses against Plaintiffs’ claims herein and from presenting any evidence relative thereto.
“3. At a time to be later designated by the Court, a default hearing will be held herein, at which time Plaintiffs will be permitted to introduce evidence in support of their claims against Dahlinger Pontiac-Cadillac, Inc., and Roy Nesseth, after which the Court will enter such default judgment as is supported by such evidence.”
Thereafter plaintiffs proceeded by depositions to secure evidence on damages. On March 25, 1980, plaintiffs filed their application for default judgment, with the hearing set for March 28,1980. Nesseth’s counsel having withdrawn, notice was mailed to him personally at his address in California. On March 28,1980, the court heard extensive evidence relating to actual and punitive damages and then entered the judgment appealed from.
Present counsel then entered the case and filed a motion for relief from the judgment under K.S.A. 60-260(£>)(4) and (6). The sole ground alleged was that the judgment had been entered “without proper notice to the defendant.” In arguing the motion to the trial court counsel conceded:
“I have no legal citations. I think frankly that from the law that I’ve read on the matter it’s a discretionary matter at this point with the Court and that the question of whether or not Mr. Nesseth should have been given notice other than what he was given is something within the discretion of the Court as far as I can tell at this point.”
On appeal the argument is somewhat different. He now contends that under K.S.A. 60-206(c), since service was by mail, there should have been an additional three days between service and the hearing.
Assuming the contention is properly before us despite not having been presented to the trial court, we conclude it is without merit. The three additional days is allowed “[w]henever 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 him or her . . . .” The statute contem-
plates that the party served has the right or obligation to do something after being served. Here Nesseth had, by the original order of default, been precluded from taking any part in the hearing on the default judgment. Whatever might have been the case if the default had been under K.S.A. 60-255 for failure to answer, the prohibition against his offering evidence was a sanction authorized by K.S.A. 60-237(1?). Had he been present he would have been unable to participate. Hence K.S.A. 60-206(e) had no applicability to the notice sent in this case.
We have had presented to us the opinion of the California Court of Appeal, Fourth Appellate District, in Binyon v. Nesseth, (No. 4 Civil 23840, unpublished opinion filed, October 6, 1981). In that case these plaintiffs sought to enforce in California the judgment rendered in this case. Nesseth resisted alleging, among other things, that the inadequacy of the notice given deprived him of due process of law. The trial court there agreed, but on appeal it was held that the procedure followed complied with Kansas law, which was said to be identical with California procedure, and that both met the requirements of due process. Basically, the court held that once defendant is declared to be in default he is not entitled to any notice of subsequent proceedings.
It is urged that we are required to give full faith and credit to the California decision, thus rendering our consideration of the notice issue unnecessary. Be that as it may, we conclude that the failure to give more notice did not deprive the trial court of jurisdiction and it did not abuse its discretion in refusing to set aside the judgment on that ground.
III. Punitive Damages
The parties agree that for us to find a punitive damage award excessive it must be of a size which “shocks the conscience of the appellate court.” Henderson v. Hassur, 225 Kan. 678, Syl. ¶ 11, 594 P.2d 650 (1979).
The long standing principles governing punitive damages were restated in Henderson:
“It is difficult, if not impossible, to lay down precise rules by which to test the question of when a verdict for punitive damages is excessive. Motor Equipment Co. v. McLaughlin, 156 Kan. 258, 273, 133 P.2d 149 (1943). Punitive damages are imposed by way of punishing a party for malicious or vindictive acts or for a willful and wanton invasion of another party’s rights, the purpose being to restrain him and to deter others from the commission of like wrongs. Koch v. Merchants Mutual Bonding Co., 211 Kan. 397, 402, 507 P.2d 189 (1973). The law establishes no fixed ratio between actual and exemplary damages by which to determine excessiveness. In assessing punitive damages the nature, extent, and enormity of the wrong, the intent of the party committing it, and all circumstances attending the transaction involved should be considered. Any mitigating circumstances which may bear upon any of the above factors may be considered to reduce such damages. Will v. Hughes, 172 Kan. 45, 55, 238 P.2d 478 (1951). In fixing an award of punitive damages a jury may consider the amount of actual damages recovered, defendant’s financial condition and the probable litigation expenses. Ayers v. Christiansen, 222 Kan. 225, 229, 564 P.2d 458 (1977).” 225 Kan. at 694.
The trial court’s findings of malice, fraud, and wanton disregard of the rights of plaintiffs incorporated in finding 28 above, are unchallenged. Evidence at the hearing on the default judgment put Nesseth’s net worth at over $1,600,000.00. Actual damages approached $10,000.00. Although we might not have made the “smart” quite so severe, we cannot say our collective conscience is shocked by the amount of the award. Cf. Townsend v. Seefeld, 102 Kan. 302, 306, 169 Pac. 1157 (1918).
Nesseth also urges that the amount represents an additional sanction for his refusal to make discovery. We are unable to draw that inference. The trial court’s findings clearly reflect its outrage at the cavalier manner in which Nesseth treated the plaintiffs, but there is nothing to indicate that the damage award was increased because of the similar treatment he accorded the court.
There is also a suggestion that the award was improperly based on Nesseth’s conduct toward persons other than plaintiffs. Findings 18 through 26, omitted above, recite a pattern of fast dealing with the cash and other assets of the corporate defendant resulting in the expenditure within a year for Nesseth’s personal benefit of over $400,000 in corporate funds in addition to his salary or “draw.” While these findings may have incidentally shown a fraud upon the corporation’s other creditors, we take their main purpose to have been to demonstrate Nesseth’s domination and control of the corporation so as to justify piercing the corporate veil. There is nothing to indicate that damages in this case were awarded for anything other than Nesseth’s conduct toward these plaintiffs. We are therefore not called upon to decide whether punitive damages may be based in part on a pattern of conduct not only involving different parties but different in kind from the defendant’s conduct toward the plaintiffs. But cf. Kiser v. Gilmore, 2 Kan. App. 2d 683, 694, 587 P.2d 911 (1978), rev. denied 225 Kan. 844 (1979).
Affirmed.
Additional facts found in paragraphs 18 through 26 cover Nesseth’s relationship to the corporate defendant and his dealings with third parties. Those findings will be discussed later. | [
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The opinion of the court was delivered by
Beier, J.:
This is a K.S.A. 60-1507 action brought by movant Joshua Robertson to challenge his jury convictions of first-degree murder, arson, and aggravated burglary. The district judge appointed counsel and conducted a nonevidentiary hearing before ruling against Robertson; a panel of our Court of Appeals affirmed the district court. Robertson v. State, No. 95,188, unpublished opinion filed February 23, 2007. We granted Robertson’s petition for review.
This case requires us to decide whether a K.S.A. 60-1507 movant must demonstrate legal prejudice when the performance of his or her motion counsel has plainly been inadequate.
Factual and Procedural Background
Robertson’s convictions arose out of his involvement in the grisly murder of Patricia Self, his girlfriend’s mother, and the burning of Self s home. We affirmed Robertson’s conviction and his hard 50 life sentence on direct appeal, rejecting seven claims of error. State v. Robertson (Robertson I), 279 Kan. 291, 109 P.3d 1174 (2005).
The K.S.A. 60-1507 motion that launched this action asserted nine claims: (1) Robertson’s confession was not voluntary because he was distraught and in pain from an injury to his hand, and was obtained in violation of Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966); (2) the prosecutor engaged in misconduct by stating that Robertson was aware of a plan to murder Self; (3) the jury’s request for the prosecution’s overhead supplementing the definition of premeditation required a mistrial; (4) the police exceeded the scope of a patdown search under Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), and illegally arrested Robertson; (5) testimony regarding Robertson’s conversation with his girlfriend about making her parents “disap pear” was not credible; (6) Robertson s trial counsel provided ineffective assistance (a) by failing to seek a competency evaluation regarding Robertson’s inability to abide by advice and to demonstrate the involuntariness of his statements; (b) because of a conflict of interest, evidenced by counsel’s attempt to withdraw from representation; and (c) by failing to challenge violations of Robertson’s Fourth Amendment rights; (7) Robertson’s appellate counsel provided ineffective assistance by failing to raise Fourth Amendment claims; (8) Robertson’s Fourteenth Amendment rights were violated, apparently because he was incompetent to stand trial; and (9) an indistinct, general expression of dissatisfaction with “[a]ll objections, arguements [sic], and filings of trial counsel and appellate counsel.”
The district judge who presided over Robertson’s criminal trial also presided over the proceedings on this K.S.A. 60-1507 motion. The judge appointed counsel to represent Robertson on the motion; Robertson was not present for the district court’s nonevidentiary hearing.
At the hearing, the district judge stated that his initial review of the record and files had led him to believe there were no issues warranting review but that he had appointed counsel for Robertson to make an independent review and to inform him whether there appeared to be any basis for relief.
Robertson’s appointed 60-1507 counsel stated that he had reviewed the transcript for Robertson’s trial, the K.S.A. 60-1507 motion, and the pleadings in the case. Although counsel did not agree with the jury’s verdict, he said, Robertson’s claims of prosecutorial misconduct, error in the jury’s request to see an overhead on premeditation, and violation of due process rights were trial errors that should have been raised on direct appeal. When the district judge noted that certain of these issues were in fact raised on direct appeal, counsel admitted that he had not read this court’s decision affirming Robertson’s convictions.
Counsel also addressed Robertson’s claim of ineffective assistance of trial counsel, specifically the allegations that trial counsel had failed to withdraw despite Robertson’s refusal to follow his advice and that counsel had failed to seek a competency exami nation to challenge the voluntariness of Robertson’s confession or his competency to stand trial. Counsel suggested that trial counsel’s representation was “exceptional” and that it would be impossible to determine that it was in any way unreasonable or defective; in fact, trial counsel had arranged for Robertson to submit to a mental health evaluation to determine the viability of a mental disease or defect defense. Counsel, noting his duty not to file frivolous pleadings, ultimately suggested that Robertson’s claims either should have been raised on direct appeal or were without merit.
After the hearing, the district judge denied relief because Robertson sought to pursue issues he could have raised on direct appeal and no exceptional circumstances excused his failure to raise them at that juncture, or, to the extent Robertson argued that he had received ineffective assistance of counsel, which may constitute such an exceptional circumstance, the issues had no substantive merit. The district judge stated incorrectly that motion counsel had reviewed this court’s opinion in Robertson’s direct appeal, but that error had no evident impact on the judge’s reasoning or result.
Robertson’s brief to the Court of Appeals in this action raised three claims: (1) The district judge should have considered the merits of Robertson’s ineffective assistance claim based on trial counsel’s failure to investigate (a) Robertson’s competence at the time he made incriminating statements to law enforcement, and (b) the falsity of certain testimony; (2) counsel at the K.S.A. 60-1507 hearing was ineffective; and (3) the district judge’s findings of fact and conclusions of law in support of his decision on the K.S.A. 60-1507 motion were inadequate under Supreme Court Rule 183(j) (2008 Kan. Ct. R. Annot. 247). His brief also appeared to take the position that his Fourth Amendment claim was appropriate for consideration on this K.S.A. 60-1507 motion because it could not have been considered on his direct appeal due to a failure to preserve the issue in the district court.
Our Court of Appeals panel agreed with Robertson that his counsel’s performance at the K.S.A. 60-1507 motion hearing was similar to that of counsel criticized in Campbell v. State, 34 Kan. App. 2d 8, 114 P.3d 162 (2005). As in Campbell, Robertson’s counsel made no argument in favor of his client’s motion and advocated against his client by arguing that trial counsel’s performance was reasonable. Robertson v. State, No. 95,188, slip op. at 3. But the Court of Appeals panel noted that the right to effective assistance of counsel on collateral challenges is statutory, not constitutional, and that appointment of counsel is discretionary rather than mandatory, depending on whether there are substantial issues of law or triable issues of fact. See Campbell, 34 Kan. App. 2d at 12. The Court of Appeals panel distinguished Campbell from Robertson’s case by noting that certain issues contained in the Campbell motion required an evidentiary hearing. The panel suggested that the movant in Campbell had shown prejudice consistent with the prejudice required when a movant alleges ineffective assistance of trial counsel under the test set out in Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Here, the panel noted, Robertson alleged no prejudice other than the fact that his motion was denied. Slip op. at 3-5.
The panel then analyzed whether the district judge had abused his discretion, the standard of review applicable at the time, by denying Robertson’s motion on the merits, concluding that Robertson was not entitled to relief. Slip op. at 5.
First, the panel concluded Robertson’s trial counsel was not constitutionally ineffective for fading to demand a competency evaluation to challenge the voluntariness of Robertson’s confession. Trial counsel had argued that the confession was not voluntary; the district court held that it was; and that ruhng was upheld by this court on direct appeal. Moreover, Robertson alleged no mental illness, and a mental health evaluation was not justified merely on the strength of Robertson’s assertion that he had felt pressured during his interrogation. Slip op. at 6.
Second, the panel concluded that trial and appellate counsel were not ineffective for fading to raise a Fourth Amendment challenge to Robertson’s arrest based on Terry, 392 U.S. at 30-31 (officer may detain person in public place on reasonable suspicion that person committing, has committed, about to commit crime). Robertson faded to explain the substance of his claim; faded to show why counsel was ineffective for failing to object or raise such a challenge; and did not address why the district judge erred in rejecting this argument. Moreover, the panel concluded that the argument was without merit because Robertson s warrantless public arrest was not a Terry stop and did not violate the Fourth Amendment. The officer who seized Robertson had probable cause to arrest him, and “neither trial nor appellate counsel could be considered ineffective for fading to raise an issue that would not have been successful.” Robertson, Slip op. at 7-9.
The panel finally observed that the district court judge’s stated rationale for denying Robertson’s K.S.A. 60-1507 motion was “sparse,” but it concluded that the findings and conclusions were adequate under Supreme Court Rule 183(j). Slip op. at 9.
The same issues before the Court of Appeals are raised by Robertson’s petition for review to this court.
Analysis
Because the nature of Robertson’s claims has shifted over time, we pause briefly to discuss the current status of each of the nine arguments for relief he made originally in his K.S.A. 60-1507 motion.
The first issue, alleging involuntariness of Robertson’s confession based on his assertion that requests for counsel were ignored or refused and that pain from a hand injury and emotional distress interfered with his exercise of will, was subject to summary dismissal in the district court. The issue of the voluntariness of Robertson’s confession had already been fully litigated on direct appeal and thus could not be the basis of K.S.A. 60-1507 relief.
The second issue, alleging reversible prosecutorial misconduct, also was subject to summary dismissal by the district court because Robertson advanced no exceptional circumstances excusing his failure to raise it in his direct appeal.
The third issue, asserting the appropriateness of a mistrial because of the jury’s request for an demonstrative overhead exhibit employed by the prosecutor to define premeditation, also was subject to summary dismissal by the district court. Again, Robertson advanced no exceptional circumstances excusing his failure to raise it in his direct appeal.
The fourth issue, alleging that the police exceeded the scope of a Terry patdown search and illegally arrested Robertson, also was subject to summary dismissal by the district court. It should have been addressed in Robertson’s direct appeal, and no exceptional circumstances excused the failure to include it at that time.
The fifth issue, in which Robertson challenged the credibility of testimony about a conversation between him and his girlfriend about making her parents “disappear,” also was subject to summary dismissal by the district court. Again, it too should have been raised in Robertson’s direct appeal; it was not, without excuse.
The sixth issue, on ineffectiveness of trial counsel, survives on this appeal in one limited respect. Robertson first argued that his trial counsel was ineffective for failing to seek a competency evaluation because of Robertson’s inability to abide by advice and to demonstrate the involuntariness of his statements. The argument about Robertson’s inability to abide by advice was abandoned when his Court of Appeals brief was filed. In Robertson’s brief to the Court of Appeals, and thus on this petition for review, the competency evaluation issue has been transformed into an allegation that trial counsel’s investigation of Robertson’s competence at the time of his confession was inadequate. This argument survives for our scrutiny. Both of Robertson’s other initial criticisms of trial counsel — that counsel had a conflict arising from a desire to withdraw from the case and that counsel was ineffective for failing to raise a Fourth Amendment argument — were abandoned when the Court of Appeals brief was submitted in this case.
Robertson’s seventh issue alleged ineffectiveness of his direct appeal counsel, again because of a failure to raise a Fourth Amendment issue. This issue also was abandoned when Robertson’s Court of Appeals brief was filed.
Eighth, Robertson made an allegation that the Fourteenth Amendment was violated, apparently because he believes he was not competent to stand trial. This argument was merely conclusoiy and thus insufficient to support K.S.A. 60-1507 relief.
Robertson’s ninth and final issue was even more vague and even more conclusory, asserting dissatisfaction with “[a]ll objections, arguements [sic], and filings of trial counsel and appellate counsel.” Again, this did not merit anything beyond a swift and summary dismissal of the motion.
We now turn to the merits of the issues before us on this petition for review.
When reviewing a district judge’s decision on a K.S.A. 60-1507 motion after a prehminary or nonevidentiary hearing, we now apply a findings of fact and conclusions of law standard of review. In other words, we determine whether the district judge’s findings are supported by substantial competent evidence and whether those findings are sufficient to support his or her conclusions of law. The district judge’s ultimate legal conclusion regarding whether the movant has established that (1) the judgment was rendered without jurisdiction, (2) the sentence imposed was not authorized by law or is otherwise open to collateral attack, or (3) there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, is reviewed as a conclusion of law using a de novo standard. Bellamy v. State, 285 Kan. 346, Syl. ¶ 4, 172 P.3d 10 (2007).
Ineffective Assistance of Trial Counsel
“ ‘Before counsel’s assistance is determined to be so defective as to require reversal of a conviction, defendant must establish (1) counsel’s performance was deficient, which means counsel made errors so serious that counsel’s performance was less than that guaranteed by the Sixth Amendment, and (2) the deficient performance prejudiced the defense, which requires showing counsels errors were so serious they deprived defendant of a fair trial. Judicial scrutiny of counsel’s performance in a claim of ineffective assistance of counsel must be highly deferential. To show prejudice, the defendant must show 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.’ [Citation omitted.]” Haddock v. State, 282 Kan. 475, 512-13, 146 P.3d 187 (2006).
Accord State v. Hedges, 269 Kan. 895, 913, 8 P.3d 1259 (2000). We evaluate both the performance and the prejudice prongs of the constitutional standard for ineffective assistance of counsel de novo. Haddock, 282 Kan. at 513; Easterwood v. State, 273 Kan. 361, 370, 44 P.3d 1209, cert. denied 537 U.S. 951 (2002).
Robertson first argues that his trial counsel was ineffective in failing to investigate his competence at the time he made his incriminating statements to law enforcement.
A review of the record on appeal, supplemented as necessary by facts and conclusions set out in this court’s decision affirming Robertson’s conviction and sentence on direct appeal, demonstrates that trial counsel’s performance was not deficient.
Early in the case against Robertson, his trial counsel filed a motion for a competency determination. The evaluation determined that Robertson was competent and that further evaluation was not necessary. The district court made a finding of competence.
In addition, contrary to Robertson’s representation in his K.S.A. 60-1507 motion, trial counsel did raise the issue of Robertson’s medical or mental capacity when challenging the voluntariness of Robertson’s incriminating statements to law enforcement. Although counsel did not seek another mental health evaluation, he introduced Robertson’s videotaped interrogation to establish that Robertson’s statements were made while he was emotionally distraught, in pain, and medically or mentally incompetent. The district judge denied the motion to suppress, ruling that police had not coerced Robertson. The district judge also eventually rejected Robertson’s contention that he committed the offense while he was under extreme emotional influence, noting that Robertson’s demeanor during the videotaped interrogation demonstrated otherwise. Specifically, the court noted Robertson’s emotional and physical pain but said he “appears to the court ... to be cogent, conversant and in touch with reality.”
On direct appeal, this court affirmed the district court’s admission of Robertson’s statements, holding there was “substantial competent evidence to support the district court’s factual findings.” Robertson I, 279 Kan. at 303. We suggested that Robertson’s behavior “virtually defined the old phrase, ‘a compulsion to confess’ ” and that, “as a matter of law, Robertson’s motion to suppress . . . merited denial.” 279 Kan. at 302-03.
On these facts, we hold that Robertson’s claim of ineffective assistance of trial counsel because of failure to investigate his competency at the time of interrogation is without merit.
Robertson also attempted to argue before the Court of Appeals and thus attempts to argue here that his trial counsel was ineffective in fading to investigate the falsity of certain testimony. This claim is raised for the first time on appeal of his K.S.A. 60-1507 motion and will therefore not be addressed. See State v. Shopteese, 283 Kan. 331, 339, 153 P.3d 1208 (2007).
Finally, we address Robertson’s assertion that he should be permitted to argue a Fourth Amendment challenge on this K.S.A. 60-1507 motion because it would have been impossible to do so on direct appeal due to a failure to preserve the issue in district court. This argument makes no sense. A criminal defendant who fails to preserve a constitutional issue at the district court level may not automatically advance the argument in a later K.S.A. 60-1507' proceeding, skipping the direct appeal process entirely. Unless exceptional circumstances excuse the procedural default, the issue cannot be revived after a failure to raise it in a direct appeal. At this stage of this case, Robertson does not demonstrate exceptional circumstances to necessitate our further review of his Fourth Amendment complaint.
Ineffective Assistance of K.S.A. 60-1507 Motion Counsel
The extent of a movant’s statutory right to effective assistance of counsel during a K.S.A. 60-1507 proceeding is a question of law over which this court has previously exercised unlimited review. See Brown v. State, 278 Kan. 481, 483, 101 P.3d 1201 (2004); Campbell v. State, 34 Kan. App. 2d 8, 114 P.3d 162 (2005).
As a preliminaiy matter, we note that Robertson raises this issue for the first time on appeal. This court has held that a constitutional challenge to an attorney’s performance must first be raised in the district court, either via a collateral attack or on remand during direct appeal, for determination of the issue. See State v. Mann, 274 Kan. 670, 691, 56 P.3d 212 (2002). This is not necessarily true, however, when the challenge addresses a statutory right to counsel or when it deals with an attorney’s performance on a K.S.A. 60-1507 motion. See Brown, 278 Kan. at 483 (no suggestion that argument must have been raised below). Several Court of Appeals cases addressing this threshold issue have reasoned that, as long as the record is sufficient or the claim clearly without merit, an appellate court may consider the quality of the assistance provided by K.S.A. 60-1507 counsel for the first time on appeal. See State v. Paredes, 34 Kan. App. 2d 346, 348-49, 118 P.3d 708, rev. denied 280 Kan. 989 (2005) (record sufficient); Rice v. State, No. 95,659, unpublished Court of Appeals opinion filed November 9, 2007 (record sufficient); Corwin v. State, No. 95,554, unpublished Court of Appeals opinion filed May 11, 2007, rev. denied 285 Kan. 1173 (record sufficient); Stephens v. State, No. 93,834, unpublished Court of Appeals opinion filed April 7, 2006 (claim without merit). Because the quality of the assistance provided to Robertson by his K.S.A. 60-1507 motion counsel is determinable on the transcript of the nonevidentiary hearing included in the record on appeal in this case, we are able to address this issue without remand to the district court.
There is no constitutional right to effective assistance of counsel in an action pursuant to K.S.A. 60-1507. Brown, 278 Kan. at 483 (citing Pennsylvania v. Finley, 481 U.S. 551, 555, 95 L. Ed. 2d 539, 107 S. Ct. 1990 [1987]). However, there is a conditional right to counsel protected by statute. State v. Andrews, 228 Kan. 368, 375, 614 P.2d 447 (1980); see K.S.A. 22-4506(b) (“If the court finds that the petition or motion presents substantial questions of law or triable issues of fact and if the petitioner or movant has been or is thereafter determined to be an indigent person . . . , the court shall appoint counsel ... to assist such person . . . .”)• Once this statutory right to counsel attaches, a movant is entitled to effective assistance of counsel. Appointment of counsel in a K.S.A. 60-1507 proceeding should not be a useless formality. Brown, 278 Kan. at 484-85 (overruling, e.g., McCarty v. State, 32 Kan. App. 402, 83 P.3d 249 [2004]; Robinson v. State, 13 Kan. App. 2d 244, 248-50, 767 P.2d 851, rev. denied 244 Kan. 738 [1989]; see also Holt v. Saiya, 28 Kan. App. 2d 356, 362, 17 P.3d 368 [2000]; Foy v. State, 17 Kan. App. 2d 775, 844 P.2d 744, rev. denied 252 Kan. 1091 [1993]).
In Brown, the district court appointed counsel to represent Charles D. Brown at a hearing on his K.S.A. 60-1507 motion. Counsel failed to advise Brown of the appointment or the hearing, did not notify Brown of the district court’s subsequent denial of the K.S.A. 60-1507 motion, and did not advise Brown of his right to appeal. Two years later, when Brown learned the fate of his motion, he attempted to appeal the dismissal. On appeal from the denial of Brown’s motion to appeal out-of-time, this court held that, by failing to notify Brown of the outcome of the K.S.A. 60-1507 hearing, Brown’s counsel had failed to “meet the most minimal of standards” of effectiveness. Brown, 278 Kan. at 484.
The court declined to conduct an independent review of the record to determine whether the district court had properly denied the motion on its merits. Noting that Brown had no remedy whatsoever other than an out-of-time appeal, the court reversed and remanded to the district court with instructions to allow the appeal to be filed and promptly forwarded the case to the Court of Appeals for review of the denial of Brown’s K.S.A. 60-1507 motion on its merits. Brown, 278 Kan. at 485-86.
In this case, Robertson’s motion counsel’s performance was comparable to the performance of counsel in Brown. We acknowledge that the district judge may have contributed to some confusion regarding counsel’s role, appearing to suggest that counsel needed to act and could act as a reserve arbiter of the motion, files, and records for the court as much as an advocate for the indigent client. Any such suggestion was not correct. Once appointed, counsel for a K.S.A. 60-1507 motion must, within the stricture of required candor to the court and other ethical rules, pursue relief for the client. If this requires counsel to stand silent or merely to submit the case on the written arguments of that client, so be it. Counsel is simply not free to act merely as an objective assistant to the court or to argue against his or her client’s position. That is, unfortunately, what counsel for Robertson did here and what we specifically prohibited in Brown.
This brings us to the question of prejudice. Nowhere in the Brown opinion did this court discuss a prejudice requirement when a K.S.A. 60-1507 movant has demonstrated ineffective assistance of motion counsel. But, in Brown, the existence of legal prejudice was obvious because counsel’s poor performance led to a complete forfeiture of Brown’s right to a timely appeal. See State v. Patton, 287 Kan. 200, 223-25, 195 P.3d 753 (2008) (discussing prejudice arising out of loss of timely direct appeal, standard to be applied when counsel responsible); Kargus v. State, 284 Kan. 908, 926, 169 P.3d 307 (2007) (discussing loss of timely petition for review, standard to be applied when counsel responsible).
Shortly after Brown, our Court of Appeals mentioned prejudice in extending our holding. In Campbell, 34 Kan. App. 2d 8, Campbell filed a K.S.A. 60-1507 motion and was appointed counsel. The district judge held a nonevidentiary hearing without Campbell being present. Motion counsel presented a “detailed, forceful, and effective” argument against her client’s position. 34 Kan. App. 2d at 13. The panel’s review of the record revealed certain legal issues appearing to warrant an evidentiary hearing, but it was not upon this basis that the panel remanded Campbell’s motion for appointment of new counsel and an evidentiary hearing. Rather, the lynchpin and “sole concern” of the panel was that counsel’s performance did not “meet the most minimal of standards” required of counsel appointed pursuant to K.S.A. 22-4506(b) to “assist” an indigent client. 34 Kan. App. 2d at 13. The panel wrote:
“[W]e understand the Supreme Court’s enunciation of a statutory right to effective counsel in K.S.A. 60-1507 proceedings in Brown was extended to an egregious instance of ineffectiveness of counsel that resulted in a highly prejudicial outcome. We view the ineffectiveness in Brown as highly prejudicial as it is extraordinary because, unless remedied, it foreclosed a right to appeal. Similarly, in the case before us, court-appointed counsel’s advocacy against her client’s K.S.A. 60-1507 motion seriously prejudiced Campbell’s legal position and, in essence, compelled the district court’s adverse judgment. As a result, we believe the Supreme Court’s precedent enunciated in Broion is applicable to Campbells unique factual situation.” 34 Kan. App. 2d at 13-14.
Thus, the Campbell panel applied Brown to a situation in which appointed counsel’s performance did not lead to a complete forfeiture of a proceeding but in which counsel advocated against an indigent K.S.A. 60-1507 movant’s position. This was enough to make counsel’s conduct “egregiously ineffective” and “highly prejudicial.” 34 Kan. App. 2d at 14.
Since Campbell, other decisions of the Court of Appeals, including the one by the panel in this case, have seized on its ref erence to prejudice to apply a two-prong test familiar from constitutional claims regarding ineffective assistance of trial and direct appeal counsel to challenges based on the performance of K.S.A. 60-1507 counsel. In fact, the analytical effect of these decisions on the difference between evaluation of counsel that is constitutionally required versus evaluation of counsel that is only statutorily provided for has appeared to be an inflation of the degree of prejudice required for relief in the case of 60-1507 counsel.
For example, in Corwin v. State, No. 95,554, the Court of Appeals referred to the two-prong constitutional test for ineffective assistance of counsel, citing State v. Mathis, 281 Kan. 99, 109-10, 130 P.3d 14 (2006); it required a showing that counsel’s performance was deficient and that the deficient performance resulted in legal prejudice. It then stated that, when a movant asserts that his or her K.S.A. 60-1507 counsel was ineffective, the movant “must meet a higher standard,” and must show: “(1) an egregious act that results in (2) a highly prejudicial outcome.” Corwin, slip op. at 3 (citing Campbell); see also Rice v. State, No. 95,659, slip op. at 4 (“tepid” representation of K.S.A. 60-1507 counsel “might constitute ineffective assistance”; movant failed to show prejudice; motion successive, untimely; on appeal, “no credible argument to support a finding of manifest injustice ... or exceptional circumstances”); Garnes v. State, No. 94,064, unpublished Court of Appeals opinion filed April 21, 2006, rev. denied 282 Kan. 789, slip op. at 10 (on independent review after dismissal of K.S.A. 60-1507 motion, arguments presented in motion lacked merit; even with active advocate, claims would not have prevailed; movant failed to show prejudice from counsel’s conduct at K.S.A. 60-1507 hearing); Stephens, No. 93,834, slip op. at 6-7 (noting claim of ineffective assistance of 60-1507 counsel not properly raised for first time on appeal; nevertheless, no remand necessary when independent review of record reveals no issues warranting evidentiary hearing).
In this case, the Court of Appeals focused on Robertson’s failure to establish prejudice as a result of his K.S.A. 60-1507 motion counsel’s performance to uphold the district judge’s decision.
We agree that a showing of legal prejudice is required when the performance of statutorily provided counsel on a K.S.A. 60-1507 motion is questioned. This is the sensible holding from both theoretical and practical perspectives — theoretical because we should not require a lesser showing from a litigant attempting to vindicate a statutory right than the showing demanded of a litigant attempting to vindicate a constitutional right, practical because reversal and/or remand when there has been no legal prejudice can usually be characterized as a profligate expenditure of scarce judicial resources. But we disagree with those Court of Appeals panels that have appeared to impose a more rigorous standard of prejudice than that imposed in constitutional cases. The required showing of prejudice is the same.
In this case, no such prejudice can be demonstrated. As the above discussion of his original arguments and of those few that remain alive at this procedural juncture illustrates, there existed no substantial legal issues or triable issues of fact when motion counsel was appointed for Robertson. Indeed, had the district judge elected to refuse to appoint counsel, refuse any hearing, and summarily deny the motion, those decisions could easily have been affirmed on appeal. The motion, files, and records in this case demonstrated as a matter of law that Robertson was not entitled to K.S.A. 60-1507 relief. It is ironic that the district judge’s abundance of caution resulted in a performance by unnecessary appointed counsel at an unnecessaiy nonevidentiary hearing that could not go unaddressed, at some length, by this court.
Adequacy of District Court’s Findings and Conclusions on K.S.A. 60-1507 Motion
Robertson’s allegation that the district judge’s findings and conclusions failed to comport with Supreme Court Rule 183(j) (2008 Kan. Ct. R. Annot. 247) also requires brief treatment. Whether the district judge complied with Rule 183(j) involves a question of law reviewable de novo. See Phillips v. State, 282 Kan. 154, 178, 144 P.3d 48 (2006).
We agree with the Court of Appeals that the district judge’s ruling may be described as “sparse.” In a case that opened with more meat on its bones, it might well have been insufficient to support appellate review. See Gaudina v. State, 278 Kan. 103, 107-08, 92 P.3d 574 (2004) (findings and conclusions of district court insufficient to allow review of all claims of ineffective assistance of counsel; remand required for compliance with Rule 183[j]); State v. Moncla, 269 Kan. 61, 65, 4 P.3d 618 (2000) (district court’s ruling did not comply with Rule 183[j]); Stewart v. State, 30 Kan. App. 2d 380, 382, 42 P.3d 205 (2002) (boilerplate journal entries do not comply with Rule 183[j]; case remanded for compliance); State v. Bolden, 28 Kan. App. 2d 879, 883-84, 24 P.3d 163, rev. denied 271 Kan. 1038 (2001). But the findings and conclusions — especially when considered in light of the judge’s additional statements at the hearing, see Phillips, 282 Kan. at 178; Harris v. State, 31 Kan. App. 2d 237, 239-40, 62 P.3d 672 (2003) — provided an adequate platform for our discussion of and action on Robertson’s arguments.
As discussed, the district judge was correct when he tentatively concluded that Robertson was entitled to no relief on any issues he raised. His statements on the record, at the close of the hearing, persuade us that his pattern of analysis was sound.
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The opinion of the court was delivered by
Davis, J.:
The Wyandotte County District Court dismissed misdemeanor charges against Merle Steve Vaughn, finding that the defendant’s speedy trial right under K.S.A. 22-3402(2) had been violated. The State appealed pursuant to K.S.A. 22-3602(b)(l), and the case was transferred to this court on its own motion. We reverse and remand for a hearing and factual determination on the State’s claim that defendant acquiesced to a continuance, thereby tolling the speedy trial period.
Facts
In July 2006, Vaughn was charged with one count of conspiracy to commit official misconduct in violation of K.S.A. 2006 Supp. 21- 3302 and two counts of official misconduct in violation of K.S.A. 2006 Supp. 21-3902(a)(5), all misdemeanor charges. He was arraigned on these charges on August 15, 2006, and was released on bond. The defendant’s case was set for trial on October 16, 2006.
On October 16, 2006, the defendant filed a motion to dismiss and a motion to suppress certain evidence. The defendant and the State agreed to continue the October 16 trial date and the hearing on the defendant’s motions until December 5, 2006.
As a result of numerous recusals by Wyandotte County district judges, Senior Judge William F. Lyle, Jr., retired, was assigned to the defendant’s case on November 1, 2006. Shortly before the December 5 hearing, Judge Lyle informed the parties that he would be unable to hear the case at the current time due to a potential conflict of interest with defense counsel. Judge Lyle rescheduled the case for February 7, 2007, to give the court time to resolve the conflict issue.
On February 2, 2007, the State received a letter from Vaughn’s defense counsel informing the State that the February 7 hearing had been continued until March 29, 2007, due to the judge’s illness. Due to continued health problems, Judge Lyle was again unable to hear Vaughn’s case on March 29, 2007, and the matter was rescheduled for May 11, 2007.
On May 11, the court heard argument on Vaughn’s previously filed motions, as well as defense counsel’s oral motion to dismiss on the basis of the denial of a speedy trial. The State filed a written response to Vaughn’s speedy trial motion, arguing that all of the continuances in this case had been either at the defendant’s request or on the court’s own motion — not at the request of the State.
On June 4, 2007, the district court issued a memorandum opinion dismissing the case for violation of the defendant’s speedy trial rights. The court explained that its “primary concern” was whether “the delay [was] caused by the fault of the defendant.” The court continued:
“The court, after much deliberation on the matter, must answer that question no! The defendant caused delay by the filing of his motions that ran from 10/16/06 to a setting on 12/5/06 for a total of 49 days. It is not sufficient, in my opinion, to say that defendant acquiesced in the following continuances of the case to stay the tolling of the 180 day speedy trial requirement. The remaining delays were not due to the fault of the defendant and the case must be dismissed against him.”
Standard of Review
This court exercises unlimited review over a district court’s legal rulings regarding violations of a defendant’s statutory right to a speedy trial. State v. White, 275 Kan. 580, 598, 67 P.3d 138 (2003). The primary issue in such appeals — the computation of days to be assessed against the so-called speedy trial clock — requires some level of statutory interpretation and fhus is reviewed de novo. 275 Kan. at 600. Nevertheless, there are times, as in the case we now consider, where the assessment of time under our speedy trial statute turns on a factual determination by the district court.
The outcome of this case turns on whether Vaughn or his defense counsel acquiesced in the delays of bringing this case to trial, thus tolling the statutory speedy trial requirement. The question of whether the defendant acquiesced in the continuances here is a factual determination. See State v. Adams, 283 Kan. 365, 369-70, 153 P.3d 512 (2007). We review the factual determinations of the district court to determine whether the facts as found by the district court are supported by substantial competent evidence. Owen Lumber Co. v. Chartrand, 283 Kan. 911, 915-16, 157 P.3d 1109 (2007). We do not reweigh evidence or reassess credibility. In re Estate of Hjersted, 285 Kan. 559, 571, 175 P.3d 810 (2008). We then determine de novo whether those facts as a matter of law support the legal conclusion of the district court. Owen Lumber Co., 283 Kan. at 915. When the record on review does not support a presumption that the district court found all the facts necessary to support the judgment, this court will remand the case for additional findings and conclusions. In re Estate of Cline, 258 Kan. 196, 206, 898 P.2d 643 (1995).
K.S.A. 22-3402 and the Statutory Right to a Speedy Trial
A total of 269 days passed between the date of the defendant’s arraignment on August 15,2006, and the hearing before the district court on May 11, 2007. Because the defendant was released on bond on the date of his arraignment, the State had 180 days to bring the defendant to trial to avoid a statutory speedy trial viola tion. K.S.A. 22-3402(2); City of Derby v. Lackey, 243 Kan. 744, 745, 763 P.2d 614 (1988) (the calculation of time for a speedy trial begins on the date of arraignment). K.S.A. 22-3402(2) provides:
“If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within 180 days after arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant.”
Only the State is authorized to bring a criminal prosecution to trial, so it is the State’s obligation to ensure that a defendant is provided a speedy trial within the statutory limits. State v. Prewett, 246 Kan. 39, 42, 785 P.2d 956 (1990). A defendant is not required to take any affirmative action to see that his or her right to a speedy trial is observed. State v. Williams, 187 Kan. 629, 635, 360 P.2d 11 (1961).
Nevertheless, delays that result from the request of a defendant toll the statutory speedy trial period. See K.S.A. 22-3402(2); State v. Warren, 224 Kan. 454, 456, 580 P.2d 1336 (1978). A defendant waives his or her right to a speedy trial under the statute if he or she requests a continuance or files a motion that delays the trial beyond the statutory deadline. See City of Dodge City v. Downing, 257 Kan. 561, 563, 894 P.2d 206 (1995) (speedy trial clock, tolled for time needed to decide defendant’s motion to suppress evidence); State v. Bean, 236 Kan. 389, Syl. ¶ 2, 691 P.2d 30 (1984) (speedy trial clock tolled when defendant' requests a continuance of the trial date). Actions of defense counsel are attributable to the defendant in computing speedy trial violations unless the defendant timely voices his or her disagreement with those actions. See State v. Hines, 269 Kan. 698, 703-04, 7 P.3d 1237 (2000); State v. Brown, 249 Kan. 698, Syl. ¶ 4, 823 P.2d 190 (1991).
This court has further explained that a defendant’s waiver of the right to a speedy trial extends not only to a defendant’s request for a continuance but also is effected by a defendant’s “acquiescing in the grant of a continuance.” State v. Brown, 283 Kan. 658, 662, 157 P.3d 624 (2007); see also State v. Southard, 261 Kan. 744, 748, 933 P.2d 730 (1997) (“A defendant, by his or her conduct, may waive the statutory right to a speedy trial. Such conduct includes requesting or even acquiescing in the grant of a continuance.”). While the term “acquiescence” does not appear in Kansas’ speedy trial statute, our previous decisions have indicated that when, a defendant acquiesces to a continuance, that defendant waives his or her statutory rights under K.S.A. 22-3402. See State v. Adams, 283 Kan. 365, 369, 153 P.3d 512 (2007).
Black’s Law Dictionary 25 (8th ed. 2004), defines “acquiescence” as “[a] person’s tacit or passive acceptance; implied consent to an act.” In Kansas, however, we have never held that passive acceptance of a continuance waives a defendant’s speedy trial rights. See Adams, 283 Kan. at 370. Such a notion is inconsistent with our decisions holding that a defendant is not required to take any affirmative action to see that his or her right to a speedy trial is observed. See Williams, 187 Kan. at 635. As the Kansas Court of Appeals explained in State v. Arrocha, 30 Kan. App. 2d 120, 127, 39 P.3d 101, rev. denied 273 Kan. 1037 (2002): “If the defense stands silent, neither advocating nor acquiescing in delay, . . . the State must beware. In such circumstances, prosecutors and the district courts are well advised to put consideration of the applicable time limit in the speedy trial statute on the record.”
For acquiescence to result in a waiver of speedy trial rights, the State must demonstrate more than mere passive acceptance and must produce some evidence of agreement to the delay by the defendant or defense counsel. The record must support a conclusion that the defendant expressly or impliedly agreed to the delay. The question of whether Vaughn acquiesced in the delays that prevented this case from being brought to trial within 180 days is the dispositive issue in the case before us.
Application and Analysis
The district court concluded in its journal entry dismissing the charges against Vaughn that it was “not sufficient, in [the court’s] opinion, to say that defendant acquiesced in the . . . continuances of the case to stay the tolling of the 180-day speedy trial requirement.” In reaching this conclusion, the district court clearly erred, as Kansas law recognizes that acquiescence by the defendant in a continuance tolls the statutory speedy trial period in K.S.A. 22-3402. Nevertheless, the rationale provided for a district court’s decision is immaterial if it reached the correct result. See State v. Murray, 285 Kan. 503, 533, 174 P.3d 407 (2008). We must therefore determine whether the record supports the district court’s conclusion that Vaughn’s statutory speedy trial rights were violated during the pendency of this case.
A total of269 days passed from the date of Vaughn’s arraignment on August 15, 2006, until Vaughn moved to dismiss the charges against him on the basis of a speedy trial violation on May 11,2007. The State was required to bring the defendant to trial in 180 days from the date of arraignment unless the delay resulted from “the application or fault of the defendant.” K.S.A. 22-3402(2). The following events took place during the 269-day period:
• August 15, 2006. Vaughn’s Arraignment. Trial is set for October 16, 2006.
• October 16,2006. Vaughn files motion to suppress and motion to dismiss. Trial is continued and hearing on motions is set for December 5, 2006.
• December 5, 2006. Judge Lyle determines that there may be a conflict of interest between himself and defense counsel. Hearing is continued until February 7, 2007, to resolve the potential conflict.
• February 2, 2007. Letter from defense counsel to State saying February 7 hearing has been continued to March 29, 2007, due to Judge Lyle’s health problems.
• March 29, 2007. Hearing is again continued to May 11, 2007, due to Judge Lyle’s health problems.
• May 11, 2007. Hearing on Vaughn’s motion to suppress and motion to dismiss. Oral motion to dismiss based on a statutory speedy trial violation.
The only time that the district court tolled against Vaughn during this 269-day period was the 50 days between October 16,2006 (the date the defendant filed his motions) and December 5, 2006 (the date the court continued the case in order to settle a potential conflict of interest between the court and defense counsel). The district court concluded that although the other delays resulting from the court’s potential conflict with Vaughn’s defense and from Judge Lyle’s health problems were not the fault of the State, they were also not the fault of the defendant and thus did not toll the speedy trial period.
There is no dispute that the 62-day period between his arraignment, August 15, 2006, and the original trial date, October 16, 2006, was properly assessed against the State. Similarly, there is no disagreement that the time from October 16, 2006, to December 5, 2006 — a period of 50 days — was properly assessed against the defendant since that delay was necessary to resolve his motions. We must determine whether the defendant caused or acquiesced in any of the three remaining periods that resulted in the 269-day delay — the 59 days from December 5, 2006, to February 2, 2007; the 55 days from February 2, 2007, to March 29, 2007; and the 43 days from March 29, 2007, to May 11, 2007 (the ultimate date of the hearing).
The State first argues that because Vaughn’s motion to dismiss and motion to suppress caused the initial delay on October 16, 2006, and because those motions were not actually heard until May 11,2007, that entire 207-day period should be assessed against the defendant. We have previously held that when a defendant files a motion near the end of the statutory speedy trial period, “a reasonable time . . . might well be charged to a defendant [to resolve the motion] under appropriate circumstances.” State v. Roman, 240 Kan. 611, 613, 731 P.2d 1281 (1987); see Prewett, 246 Kan. at 43 (referencing Roman). We will not extend this ruling, however, to find that the 207-day period between October 16 and May 11 was a reasonable time for the court to hear and decide the defendant’s motions. We have consistently held that “judicial procrastination [is] not the defendant’s fault and should not be charged to him [or her].” Prewett, 246 Kan. at 43. A 207-day delay in resolving a motion is presumptively unreasonable unless that delay was due to intermediate delays caused by the defendant.
Furthermore, the State’s argument that the entire 207-day period should be tolled is undermined by the record. When Vaughn filed his motions on October 16, 2006, the court set the matter for hearing on December 5, 2006. There is no dispute that the time between these dates — 50 days — is properly assessed against the defendant. Judge Lyle’s decision in December to continue the case to resolve a potential conflict with defense counsel and the subsequent continuances that resulted from the judge’s health problems were unrelated to the defendant’s motions. Thus, the time delays after December 5, 2006, are not attributable to the defendant’s motions.
The State’s argument that the 59 days from December 5, 2006, to February 2,2007 — when the court continued the case to resolve a possible conflict between the court and defense counsel — should be assessed against Vaughn is similarly without merit. The record before us contains no indication that either the defendant or his defense counsel participated in this continuance by the court. The fact that the continuance was initiated because the court was concerned about a conflict with defense counsel does not render the 59-day delay the fault of the defendant. It was the court, not the defendant, that deemed it necessary to continue the case for 59 days. The defendant was silent and had no obligation to either object to or participate in the granting of the continuance. See Williams, 187 Kan. at 635. This time is properly assessed against the State.
The record likewise contains no indication that the defendant either initiated the 43-day delay from March 29, 2007, to May 11, 2007, or acquiesced in that delay. In fact, there is nothing in the record to indicate how this continuance took place. As the appellant, the State has the burden to preserve and designate a record that supports its argument that the defendant acquiesced in this delay. See State v. Paul, 285 Kan. 658, 670, 175 P.3d 840 (2008). In the absence of such a record, we find that the district court properly assessed this time against the State.
Only the 55-day continuance from February 2, 2007, to March 29, 2007 — which is documented in a letter from Vaughn’s defense counsel to the State and resulted from Judge Lyle’s ill health— remains in dispute. If we find that these 55 days should be assessed against Vaughn and this time is added to the 50 days already as sessed against the defendant due to his motions to suppress and to dismiss, a period of 16 days remains for the defendant to be tried on the misdemeanor charges. If, however, the 55 days are attributed to the State, more than 180 days have lapsed and the district court properly dismissed the charges.
The letter sent by Vaughns defense counsel on February 2, 2007, contained the following description of the circumstances surrounding the 55-day delay:
“This letter will confirm my conversation with all of you on January 29, 2007 regarding the Vaughn and Lane matters, which had been scheduled for February 7,2007.1 know we all tried to reach Judge Lyle earlier in the day and were unable to do so, but later on that afternoon I was successful in reaching Judge Lyle and at that time we spoke with Judge Sieve’s chambers in Division 1 at the Wyandotte County Courthouse.
“We have tentatively scheduled the Vaughn and Lane matters for hearing, including my Motion to Suppress and/or Dismiss and Mr. Lane’s Preliminary Hearing, for March 29, 2007 at 9:00 a.m.
“Judge Lyle asked that I write to everyone to confirm the date and time, which I am doing via this letter. Should any of you have any questions, feel free to address Judge Lyle directly or if you have any questions for me, feel free to contact me directly.”
This letter by Vaughn’s defense counsel is the only documentation in the record regarding the events that led to tins continuance. The State argues that the letter indicates an agreement between the district court and defendant that Vaughn’s case would be continued to March 29, 2007, at 9 a.m., suggested by defense counsel’s setting of the hearing date as well as his indication that Judge Lyle asked defense counsel to confirm, the date with all parties. Thus, the State argues that the letter amounts to acquiescence in the 55-day delay.
In oral argument before this court, Vaughn’s defense counsel argued that in drafting this letter, he was nothing more than a scrivener of information provided by Judge Lyle. He related the circumstances surrounding his conversation with Judge Lyle and explained that it was the court, not counsel, that ordered the continuance. According to Vaughn’s argument, his defense counsel was merely following the order of the district court, and the letter should not be read to indicate his acquiescence to the delay. We note, however, that none of these circumstances appear in the record. We must confine our review of the facts to the record before us, and the only information contained in that record regarding the February 2 continuance is the letter by Vaughn’s defense counsel that is set forth above.
Support for both parties’ arguments as to the question of acquiescence can be found in the February 2 letter. On the one hand, some of the language in the letter suggests that defense counsel (and, by extension, the defendant) was in agreement with the continuance, rather than merely reflecting the judge’s order of continuance. On the other hand, it is clear drat the matter is being continued by the judge based upon his ill health, and it was the defense counsel who conferred with the judge in an attempt to set the matter for hearing.
The district court did not make any findings of fact regarding the letter or its effect on Vaughn’s speedy trial rights. Moreover, although the district court made no finding in its journal entry as to whether Vaughn acquiesced in the 55-day continuance from February 2,2007, to March 29,2007, the district court erroneously stated that a finding of acquiescence would make no difference in its decision. When the record on review does not support a presumption that the district court found all the facts necessary to support its judgment, this court will remand the case for additional findings and conclusions. See In re Estate of Cline, 258 Kan. at 206. For these reasons, we find that it is necessary to reverse the decision of the district court and remand this case for a factual determination on the question of acquiescence by Vaughn during this 55-day period.
In summary, we are not in a position to render a factual decision regarding acquiescence in the continuance from February 2,2007, to March 29, 2007. We conclude that defense counsel’s February 2 letter is ambiguous on the question of acquiescence in its language and can be used to support both parties’ positions. Because the answer to the question will ultimately resolve this case and because it turns on a factual determination, we reverse the district court’s dismissal of the charges and remand this case to the district court for a hearing on the question of whether Vaughn acquiesced in the 55-day continuance in dispute.
Effect of Judge's Illness
The State also advances a policy argument for why this court should find that Vaughn’s speedy trial rights were not violated in this case, arguing that Judge Lyle’s illness tolled the statutory speedy trial period. On the whole, the State cites cases from 15 jurisdictions — 10 of which held that the speedy trial clock to be tolled by a judge’s health problems, 4 jurisdictions that did not, and 1 jurisdiction (Illinois) that apparently takes a different approach for statutory and constitutional speedy trial analysis — to support its argument that a national “trend” is emerging that tolls speedy trial rights in cases where judges become ill or are otherwise unavailable. This argument ignores the plain language of our speedy trial statute.
The determination as to whether a defendant’s statutory speedy trial right under K.S.A. 22-3402(2) is tolled by a judge’s-illness (or other court delay) is a question of statutory interpretation. State v. White, 275 Kan. 580, 598-600, 67 P.3d 138 (2003). The key question in cases of statutory interpretation is the intent of the legislature. See Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007). This question cannot be resolved by looking to what courts of other jurisdictions have done with regard to their respective states’ statutes, but instead turns on the specific statutory language of K.S.A. 22-3402(2). See State v. Stallings, 284 Kan. 741, 742-43, 163 P.3d 1232 (2007).
K.S.A. 22-3402(2) states:
“If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within 180 days after arraignment on the charge, such person shall be entitled to be discharged from jurther liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant.” (Emphasis added.)
Under the plain language of this statute, the only actions that may stay the statutory speedy trial calculations are actions that are attributable to the defendant. A judge’s illness does not fall into such a category, so it cannot alone toll the statutory speedy trial period. Nevertheless, if a defendant acquiesces in continuances that result from a judge’s illness, that acquiescence will toll the speedy trial clock. This is the central question we face in this case— whether Vaughn or his defense counsel acquiesced in the delays occasioned by Judge Lyle’s illness.
Conclusion
The district court found that Vaughn’s speedy trial rights had been violated because, under the court’s calculations, over 180 days passed between Vaughn’s arraignment on August 15,2006, and the hearing on his motion to suppress and motion to dismiss on May 11, 2007. The district court’s dismissal was based, at least in part, on the incorrect legal conclusion that the defendant’s acquiescence to the continuances in this case had no bearing on his speedy trial rights under K.S.A. 22-3402(2). Contrary to the district court’s conclusion, the determination of acquiescence by the defendant is critical to the resolution of this case. Because the question of acquiescence was not resolved by the district court and because this question cannot be resolved based on the record but will ultimately resolve this case, we reverse the district court’s dismissal of the charges against Vaughn and remand for a hearing on the question of whether the defendant acquiesced in the 55-day continuance from February 2, 2007, to March 29, 2007.
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Meyer, J.:
This appeal stems from a suit for breach of a construction contract.
English Village Properties, Inc. (appellee), a motel corporation, contracted with Boettcher & Lieurance Construction Co., Inc. (appellant construction company) to demolish an older part of the motel and to construct a new 16-unit building in its place. The contract recited a price of $167,940.00. A performance bond was executed with Insurance Company of North America (appellant bonding company).
Soon after completion of the construction, marlite paneling in the bathrooms began buckling, and red splotches and lumps appeared on the interior walls of the motel rooms. Appellee demanded correction of these problems, and withheld $5,000 from the contract price. Appellee contracted with third parties to have some of the repairs done, and also brought suit against appellants for the cost of repairs which were still necessary.
The jury returned a verdict in favor of appellee and against both appellants in the amount of $117,977.00. The court reduced the judgment to $112,977.00, reflecting the $5,000.00 previously withheld by appellee from payment on the contract. From this verdict, both appellants appeal, citing numerous points of error.
Appellants first claim that the evidence was insufficient to go to the jury, and that the trial court therefore should have granted their motion for a directed verdict. Specificially, two areas of concern are pointed out: one as to proof of causation, and the other as to proof of damages.
It is stated in Care Display, Inc. v. Didde-Glaser, Inc., 225 Kan. 232, Syl. ¶ 5, 589 P.2d 599 (1979):
“In ruling on a motion for directed verdict pursuant to K.S.A. 60-250, the court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought, and where the evidence is such that reasonable minds could reach different conclusions thereon, the motion must be denied and the matter submitted to the jury. The same basic rule governs appellate review of a motion for a directed verdict. (Following Simpson v. Davis, 219 Kan. 584, Syl. ¶ 3, 549 P.2d 950 [1976].)”
Discussing the scope of appellate review, it has been held that:
“When a verdict is attacked on the ground it is contrary to the evidence, it is not the function of this court on appeal to weigh the evidence or pass on the credibility of the witnesses. If the evidence with all reasonable inferences to be drawn therefrom, when considered in a light most favorable to the successful party below, will support the verdict this court should not intervene.” Timsah v. General Motors Corp., 225 Kan. 305, Syl. ¶ 1, 591 P.2d 154 (1979).
Appellants argue that the evidence linking appellee’s damages causally to breaches by appellant construction company was speculative.
The evidence made clear that the cause of the damage was water inside the walls. There was conflicting evidence concerning how the water came to be in the walls and who was responsible for the damage. Some evidence indicated that it came from the outside, through holes in the exterior walls. Other evidence indicated the moisture problem was caused by water used in drilling holes in prefabricated concrete slabs. This drilling was performed by a contractor hired by appellee after the slabs arrived without the holes having been drilled. There was evidence that the appellant construction company was responsible for seeing that these holes had been drilled prior to the arrival of the slabs at the construction site. Finally, there was evidence that moisture which became trapped between the vinyl wallpaper and styrofoam insulation was the cause of the room damage; this moisture would have come from the paste used in hanging the wallpaper.
It is true that it is essential to a plaintiff’s recovery that he prove with reasonable certainty that the damages complained of resulted from the acts or omissions of the defendant. Apperson v. Security State Bank, 215 Kan. 724, 735-36, 528 P.2d 1211 (1974). However, this rule does not mandate that such proof be with absolute certainty.
Appellants contend that because several possible causes of the damage were suggested, the jury was somehow precluded from determining that one of these was the actual cause, to the exclusion of the others. On the contrary, it is the function of the jury to weigh conflicting evidence and to reach findings of fact therefrom. 47 Am. Jur. 2d, Jury § 3, p. 628. That is precisely what the jury in this case did regarding the issue of causation.
In their brief, appellants also cite cases in support of the rule that it is impermissible to allow opinion testimony which consists of an inference upon an inference, and argue that the opinion evidence regarding causation in this case violated that rule. We do not agree. The condition of the walls was shown directly by the evidence. The only inference drawn was that of how the water got into the walls, and this inference was drawn in opinion testimony given by various witnesses to explain the possible sources of the moisture. The trial court did not err in admitting this opinion evidence, for it was within the jury’s province to accept or reject each inference which could be drawn from the evidence.
Furthermore, it was held in Plains Transp. of Kan., Inc. v. King, 224 Kan. 17, Syl. ¶ 3, 578 P.2d 1095 (1978):
"As many inferences may be drawn from a fact, or state of facts, as can be justified, so long as each has a factual foundation, without violating the rule against inference based on inference.”
Appellants’ arguments on this issue go more to the weight and credibility to be given individual testimony than to the sufficiency of the evidence, and are beyond our scope of review. We conclude there was sufficient evidence in this case to go to the jury on the issue of whether the damages were caused by appellant construction company.
Appellants next challenge the sufficiency of the evidence showing what repairs were, in fact, necessary. They argue that the estimates of the cost of repairs were therefore too speculative to go to the jury.
Appellee’s estimate of damage was the cost of tearing out and replacing the wallpaper, Sheetrock, insulation, and furring strips in order to clean, dry, and disinfect the underlying block in every room.
The estimate for interior repairs was arrived at by an expert, who testified concerning how much it would cost to tear out the wallpaper, Sheetrock, insulation and furring strips in one room ($5,553.00), and then, by multiplying that amount by the number of units (16), arrived at the final figure of $88,848.00. This same witness also testified that each room would be out of service for a period of from 30 to 60 days; this opinion was used as a basis for calculating appellee’s lost profits due to inability to rent the rooms while the repairs were in progress. This expert did not, however, testify that all these repairs were in fact necessary; this, argue appellants, makes the estimates of damage too speculative for consideration by the jury.
The general rule governing recovery of damages has been stated as follows:
“One who claims damages on account of a breach of contract must not only show the injury sustained, but must also show with reasonable certainty the amount of damage suffered as a result of the injury or breach. [Citation omitted.] In order for the evidence to be sufficient to warrant recovery of damages there must be some reasonable basis for computation which will enable the jury to arrive at an approximate estimate thereof. [Citation omitted.]” Venable v. Import Volkswagen, Inc., 214 Kan. 43, 50, 519 P.2d 667 (1974).
There was no direct testimony that all the repairs proposed by appellee would be necessary in order to correct the problem. There was, however, testimony that in at least one wall in one of the units, the Sheetrock was found to be mushy, the insulation was wet, and the block was wet. The evidence indicated that moisture caused the buckling of the marlite and also caused the mold and lumps to form on the wallpaper. There was also testimony that every room in the new addition had some problems with either mildew or mold, or with failure of the marlite to stick; this evidence indicated that the moisture problem was widespread. The jury also viewed the premises.
The estimates of cost of repairs given by appellee’s expert witness were not offered as proof of the necessity of such repairs; rather, they provided the jury with the reasonably certain basis for computing the approximate amount of damages mandated by Venable. The evidence of widespread moisture problems and resultant damage would properly support a conclusion by the trier of fact that some or all of the proposed repairs were in fact necessary. The jury was free to determine for itself exactly which of the proposed repairs were truly necessary to alleviate the moisture problem. Having made such a determination, it could then use the estimates offered by appellee to place a value on the damages, including profits lost while the rooms underwent repair. Viewing all the evidence and inferences therefrom in the light most favorable to the appellee, as we must on review, we believe that the issue of amount of damages was properly placed before the jury. The trial court did not err in denying appellants’ motion for a directed verdict.
Appellants next assign as error the trial court’s admission of certain evidence relating to the computation of damages. We note, however, that appellants failed to object at trial to the admission of any of this evidence. K.S.A. 60-404 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 admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.”
It has also been stated:
“K.S.A. 60-404 is a codification of the state’s prior law and provides that a verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection. [Citations omitted.]” State v. Estes, 216 Kan. 382, 385, 532 P.2d 1283 (1975).
Appellants are therefore barred from asserting these points on appeal.
Appellants’ third major area of concern involves several of the instructions read to the jury. Before addressing each of the particular points that appellants assign as error, we note that K.S.A. 60-251 codifies the scope of review to be applied when jury instructions are attacked on appeal. Specifically, 60-251(b) provides:
“No party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict stating distinctly the matter to which he or she objects and the grounds of his or her objection unless the instruction is clearly erroneous.”
Applying the rule stated above, we shall examine each individual instruction of which appellants now complain to see if there was reversible error committed in this area.
Appellants claim that instruction Nos. 3 and 4 erroneously shifted some of the burden of proof to them (defendants); a timely and specific objection to these instructions was made at the trial. Instruction No. 4 defined “burden of proof”; it did not purport to allocate the burden between the parties. This instruction was a correct statement of the general rule and is a verbatim recitation of PIK Civ. 2d 2.10. We find no error here.
Instruction No. 3, on the other hand, does pose a problem. It reiterated the theories of each party and allocated burdens of proof on particular issues between the parties. The instruction contained in its last sentence a statement which should have been omitted. That instruction is as follows:
“Plaintiff contends that Boettcher & Lieurance Construction Company, Inc. breached the written contract whereby the defendant agreed to construct a new addition to the English Village Motel in Wichita, Kansas. Plaintiff contends that defendant Insurance Company of North America breached its duty under a Performance Bond whereby defendant Insurance Company of North America bound itself as the surety on the performance of the construction contract. Plaintiff claims that it sustained damages as a result of both of these breaches of contract. The plaintiff has the burden to prove that its claims are more probably true than not true.
“The Defendants contend that they did not breach the contract, that they did substantially perform the contract. The Defendants further contend that if there was any damage, it was a result of work performed by others, other than the contractor and its agents or subcontractors. Defendants further contend that if there was any damage suffered by the Plaintiff, that such damage was trivial in nature and that the Plaintiff failed to minimize damages.
“The Defendants have the burden to prove that its claims of fault on the part of the Plaintiff are more probably true than not true. ” (Emphasis added.)
This instruction was structured from PIK Civ. 2d 6.01. The final sentence is, however, suggested for use in cases involving the affirmative defense of comparative negligence. In such a setting, it is undoubtedly a correct statement of the law; applied to a breach of contract case, it can admittedly cause the jury some confusion. It is possible, as appellants suggest, that this final statement may have made the jury believe that the defendants were obligated to prove their own innocence in the matter, thus erroneously shifting the primary burden of persuasion from the plaintiff-appellee to the defendants'-appellants. Such a shift, argue appellants, would have enabled the jury to find for appellee without first determining that its claims against appellants were more likely true than not.
While we recognize that instruction No. 3 was not the best instruction under the particular circumstances, we believe that when viewed in its entirety, its essential message was a proper statement of the law, and that it was not so misleading as to confuse the jury. The instruction properly states the theory supporting appellee’s claim against appellants that they had breached their respective contracts and that these breaches resulted in injury to appellee. It was also a correct statement of appellants’ defense: that they had not breached the contract, but had rendered substantial performance, and that if appellee had suffered any injury, it was trivial and avoidable and at the hands of some third party not in privity with appellants. It is true that appellants’ defense was a denial, not a claim; neither of the alternative theories offered by appellants was an affirmative defense. Therefore, it did not devolve upon appellants to prove or disprove anything at trial. Nevertheless, the appellee’s theory and that of appellants are mutually exclusive. In reaching its verdict, the jury would have to determine which party’s theory was more likely true than not. A finding in favor of one party would be a rejection of the other party’s theory. Further, instruction No. 4 did admonish the jury to “consider all the evidence, whether produced by the Plaintiff or Defendant” in reaching its conclusion on each and every issue of fact before it, regardless of which party had the burden of proof.
We are of the opinion that instruction No. 3 sufficiently informed the jury of its function and purpose; the instruction adequately summarized the positions of the parties. The inclusion of the final sentence in that instruction was error and should not be employed except in cases where a true affirmative defense has been asserted. While such an inclusion could be error mandating reversal in another situation, we hold that in this case the error of the trial court was harmless and does not appear to have prejudiced any substantial right of appellants. It is not necessary for us to reverse the judgment on this ground. K.S.A. 60-261.
Appellants also assert that instruction No. 6, relating to expert opinion testimony, was error; they did object to the giving of this instruction at trial. This instruction was taken verbatim from PIK Civ. 2d 2.50, and is a correct statement of the law. No error is found in giving this instruction.
Appellants also attack the propriety of instruction No. 7. That instruction is as follows:
“You have viewed the premises. You may consider what you have seen along with the other evidence in the case in arriving at the amount of the compensation to be awarded to the plaintiff, if any.”
It is argued that this instruction allowed the jurors to speculate on their personal observations, without correlating what they have viewed to the evidence presented in the courtroom. We note a passage from PIK Civ. 2d 1.40, wherein it concludes:
“What you (see)(have seen) at the scene you may take into consideration in arriving at your verdict in so far as what you (see)(have seen) is supported by evidence coming to you in the courtroom.”
It is apparent that instruction No. 7 as given does not state the fact that conclusions drawn from a viewing should also be supported by courtroom evidence, as clearly as PIK Civ. 2d 1.40. Because appellants failed to object to the giving of this instruction, though, we cannot reverse on this ground unless we find the instruction to be clearly erroneous. K.S.A. 60-251. Appellants have not demonstrated to us that any prejudice in fact occurred because of the wording of instruction No. 7. Absent an affirmative showing of actual jury misconduct based on this poorly-stated instruction, we do not feel that the meaning of the instruction deviates from the substance of PIK Civ. 2d 1.40 enough to term the instruction clearly erroneous.
Appellants also assail instruction No. 10; that instruction is as follows:
“If you find for the Plaintiff, you should then determine its recovery. The amount of such recovery should be whatever sums you find are necessary to restore the property to the condition that it would have been in had the contract been fully performed, plus a reasonable amount to compensate for loss of use of the property while repairs are being made with reasonable diligence. The total amount of Plaintiff’s damages may not exceed the sum of $135,058.78.”
Appellants attack this instruction on appeal on several grounds; some of these grounds were stated in objections at trial, others were not. We will address each of these grounds in turn.
Appellants insist that the instruction inadequately details the elements of damage claimed. They objected and requested an instruction which listed each particular element of damage supportable by the evidence, and they now submit that it was error to refuse their request. The instruction as given was a sufficient statement of the elements of damage; there was no need to list each particular defect of which appellee complained. We find no error in this regard.
Appellants also objected at trial, and contend on appeal, that the instruction failed to require the jury to connect the appellee’s recovery of damage to some act or omission of appellants. They offered a requested instruction taken directly from PIK Civ. 2d 18.07, which contains a statement requiring a connection between plaintiff’s damages and defendant’s conduct; this request was not honored. Appellants insist that this failure was fatal to the verdict because no other instruction stated this requirement. We disagree. Appellants are partially correct; instruction No. 10 contains no language indicating that a finding for appellee requires a determination that the damages were a result of some act or omission of appellants. However, instruction No. 3 (which was itself attacked on other grounds and is reproduced earlier in this opinion) contains language which fills the gap left in instruction No. 10. Instruction No. 3 first states that appellee contends that both appellants breached contracts with it; it then continues “[appellee] claims that it sustained damages as a result of both of these breaches of contract. The [appellee] has the burden to prove ... its claims . . . .” (Emphasis added.) This instruction, we believe, made it clear to the jury that to recover appellee must prove its damages and that these damages were caused by appellants.
Moreover, as was stated in Huxol v. Nickell, 205 Kan. 718, Syl. ¶ 6, 473 P.2d 90 (1970):
“Instructions are to be construed together and are sufficient if, taken as a whole, they properly state the law.”
Appellants’ argument on the above ground as to instruction No. 10 is without merit..
The three remaining grounds upon which appellants attack instruction No. 10 were not made part of their objections at trial; we may therefore reverse on one of these grounds only if we find the instruction to be clearly erroneous. K.S.A. 60-251.
First, appellants contend that the trial court erred in submitting the issue of damages to the jury, in that its instruction as to the measure of damages contained an improper computational formula under the circumstances in this case. Appellants argue that the “diminution in value” formula, not the “cost of repair” formula, should have been applied in assessing appellee’s damages.
The “cost of repair” rule is recognized in this state for computation of damages from a breach of a construction contract.
“When a building contract has been so far performed that the building is occupied and used by the owner for the purposes contemplated by the contracting parties and where correction or completion would not involve unreasonable destruction of the work done by the contractor evidence of the cost of correcting the defects and completing the omissions will, as a general rule, be a fair measure of the damages.” Mahony, Inc. v. Galokee Corporation, 214 Kan. 754, 757, 522 P.2d 428 (1974).
It is true that the repairs which were contemplated involved a destruction and rebuilding of much of the interior work done by appellants, but it appears that the jury could have concluded from the evidence that all the proposed repairs were necessary to put the motel in the condition it would have been in had the contract been performed according to all specifications. For this reason, it was not error for the court to submit the damages issue to the jury based upon the “cost of repair” rule.
Appellants argue that the jury verdict, as returned, was exces sive. It is true that the verdict amounts to approximately 70 percent of the original contract price, but some of this is due to the fact that the trial court allowed evidence of inflation in construction costs between 1976 and 1980. It is stressed that damage on account of breach should be valued as of the date of the breach. 22 Am. Jur. 2d, Damages § 52, p. 81. This is true, but appellants did not object to this evidence of inflation at the time of its admission. Further, Seaman U.S.D. No. 345 v. Casson Constr. Co., 3 Kan. App. 2d 289, 594 P.2d 241 (1979), stands for the proposition that, in the interests of fairness and equity, it is sometimes proper to compute the measure of damages at some time after the date of the breach. We are not prepared to state that this principle could not apply to this case. And finally, appellants’ argument is negated by the holding in Sippy v. Cristich, 4 Kan. App. 2d 511, 519, 609 P.2d 204 (1980), that where a trial court has as its only evidence the cost of repairs, this can be used to compute the difference in value between the contract as proposed and as actually performed.
Appellants last attack on instruction No. 10 regards the maximum figure stated therein; they allege that the record does not support this amount. Our own review of the record indicates that the evidence would support a recovery in excess of $135,058.78, the maximum recovery allowed by the instruction. Therefore, no error is shown.
Appellants also contend that the trial court erred in refusing their request that certain interrogatories be submitted to the jury. It has been held that:
“Under K.S.A. 60-249(h) the trial court is given discretionary powers in the area of special questions, and it may refuse to give special questions even though they relate to issues of fact raised by the pleadings or evidence in the case, absent a showing that the trial court abused its power of discretion.” Thompson v. General Finance Co., Inc., 205 Kan. 76, 78, Syl. ¶ 18, 468 P.2d 269 (1970).
While the interrogatories proposed by appellants were proper under the circumstances, and answers to them might even have proved helpful, they were not essential. Therefore the trial court did not abuse its discretion by refusing to submit them to the jury.
Appellants’ last point of error regards certain communications between a court services officer and the jury. Without here reviewing the particulars of this communication, we have examined this point and find that the communication was not improper and did not prejudice the rights of appellants.
In summary, we have considered each issue raised by appellants. As previously noted, some minor errors are evident from the record. But we do not feel that any of these errors alone, or all of them standing together, are sufficiently prejudicial to warrant the reversal of this case.
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Spencer, J.:
Issues presented in this cause are (1) whether a nonstatutory action commenced on behalf of a minor child to establish paternity of that child survives the death of the alleged father; and (2) whether summary judgment was properly entered.
This action was commenced November 29,1977, by the mother and next friend of plaintiff, a child then ten years of age, seeking an adjudication that defendant was the natural father of plaintiff; that defendant be required to provide for the support and education of plaintiff; for counsel fees and for costs of suit. Defendant died February 1, 1979. His will was thereafter admitted to probate and co-executors were appointed and qualified. Plaintiff then moved to substitute the co-executors as parties defendant. This was followed by defendant’s motion to dismiss, together with memoranda in support and in opposition to that motion. In this posture, the trial court denied the motion for substitution and entered summary judgment in favor of defendant. In doing so, the trial judge concluded that:
“[AJbsent a statute expressly providing for the survival of a cause of action, or of an action, to establish paternity and support of an illegitimate child, neither the right of action nor an action already instituted survives the death of the putative father, so no new proceeding can be instituted against the decedent’s estate, and an existing action which has not reached judgment abates and cannot be continued against decedent’s personal representative.”
citing 10 C.J.S., Bastards § 47; 10 Am. Jur. 2d, Bastards § 97; 58 A.L.R.3d 188.
The trial judge reasoned that parental obligation to support legitimate children terminates at death, and illegitimate children should not be treated more favorably. Further, it would be extremely severe and very questionable policy to allow a living woman to swear the paternity of illegitimate offspring upon a dead man. The judge also considered the provisions of K.S.A. 60-225(a)(l), 60-1801 and -1802, and arrived at the conclusion that plaintiff did not have a cause of action or a claim for relief against a deceased parent, any more than a legitimate child, and therefore this cause of action did not survive the death of the defendant.
It is important to note that plaintiff’s action was predicated on a father’s nonstatutory obligation to support his illegitimate child, as was recognized in Doughty v. Engler, 112 Kan. 583, 211 Pac. 619 (1923), and not by means of paternity proceedings under K.S.A. 38-1101 et seq.
We also note that the father of an illegitimate child has a duty similar to that imposed upon the father of a legitimate child where the relationship of father and child has been established by acknowledgment of paternity or the judgment of a court of record having jurisdiction of the case. State, ex rel., v. Schutts, 217 Kan. 175, 179-180, 535 P.2d 982 (1975).
In Huss v. DeMott, 215 Kan. 450, 524 P.2d 743 (1974), it was observed that in Kansas we have two distinct proceedings in which the paternity of an illegitimate child may legally be determined, one to be brought by the mother under the statute (K.S.A. 38-1101 et seq.), and the other by the child based on the decision in Doughty. The court stated:
“In comparison the child’s action under Doughty is different in various ways. It is initiated in the district court as any other civil action. Its purpose is to force the putative father to support the illegitimate child. The action is based on the father’s obligation to support his children. That obligation extends to legitimate and illegitimate children alike áhd arises from the public policy of this state. . . , In such an action paternity has to be established in order to give rise to an obligation to support.” 215 Kan. at 452.
In this case, plaintiff seeks to establish his status as a child of deferidárit, and, paternity having been so established, to require defendant to provide for his support and education. Clearly, the obligation of a father to support his child, whether legitimate or illegitimate, ends with the death of the father, absent enforceable contractual obligations to the contrary! In re Estate of Sweeney, 210 Kan. 216, 228-229, 500 P.2d 56 (1972). Accordingly, the trial court was partially correct in that the' portion of this action seeking support for plaintiff from the defendant did not survive the death of defendant. Does it then follow that thé portion of this action aimed at a determination of the status of this child as the child of defendant must also end with the death of defendant? We think not.
Although it appears this precisé issue has not previously been considered in this state, there are numerous cases involving decedents and decedents’ estates in which paternity has been the controlling issue.
In McLean v. McLean, 92 Kan. 326, 140 Pac. 847 (1914), the question to he detefmíhéd was whether plaintiff was the illegitimate son of a decedent, and whether the decedent had recognized such relationship in a general and notorious manner. The court stated:
“These are questions of fact for the determination of the jury under proper instructions as to what constitutes a general and notorious recognition of the relation of father and son on the part of the father.” 92 Kan. at 329.
Record v. Ellis, 97 Kan. 754, 156 Pac. 712 (1916), was an appeal by the administrator of a decedent’s estate from a decision adjudging the plaintiff competent to inherit from the decedent, which involved questions of paternity and of general and notorious recognition of such.
Smith v. Smith, 105 Kan. 294, 182 Pac. 538 (1919), was an action for the partition of real estate wherein one of the principal questions presented for determination was whether an illegitimate son of decedent was so recognized by the alleged father as to be entitled to inherit from him.
Nolting v. Holt, 113 Kan. 495, 215 Pac. 281 (1923), an action in ejectment and for partition, was commenced by two plaintiffs to recover real estate as recognized sons and heirs of a decedent. Plaintiffs were conceived and born while their mother was living with her husband. After proving it was impossible for their mother’s husband to be their father, the children called their mother as a witness and she testified the decedent was their father. It was held the testimony was properly received and the plaintiffs prevailed.
Lynch v. Rosenberger, 121 Kan. 601, 249 Pac. 682 (1926), was an action for partition in which an issuable fact was the paternity of one of the claimants who successfully claimed the whole of a decedent’s estate as an illegitimate son of the decedent.
In Jensen v. Reeble, 167 Kan. 1, 2, 204 P.2d 703 (1949), the court reviewed the result of a “proceeding wherein one claiming to be an heir of decedent sought in probate court to have that relationship established.” On appeal to the district court and finally to the Supreme Court, the claimant prevailed.
In In re Estate of Julian, 184 Kan. 94, 334 P.2d 432 (1959), an appeal arising out of a dispute as to who were the heirs of an intestate decedent, the court reviewed and upheld proceedings conducted to determine the status of a person alleged to be the daughter of the decedent.
The foregoing are not intended as a complete listing of cases wherein paternity has been an issue and the alleged parent deceased. However, the issue of paternity has long been recognized as one determinable by our courts, even though the putative father may at the time of such determination be deceased. We believe our position on this matter is bolstered by the provisions of K.S.A. 38-1109 which provide the mother’s action to determine paternity shall survive the death of the alleged father, and by the provisions of K.S.A. 59-501 relating to intestate succession, wherein the definition of “children” includes illegitimate children when applied to father and child “where the father has notoriously or in writing recognized his paternity of the child . . . .”
In N.R. v. R.J.D., 588 S.W.2d 76 (Mo. App. 1979), the identical issue here presented was considered. The court observed that in most states where the issue has been determined, the action for paternity was created by statute and it has been held the action abates in the absence of a statute to the contrary. It was stated:
“In other states it is said that, being governed by the common law, the action abates because such actions abated at common law. The cases we have read holding the latter view cite no authority for the assertion that the action abated at common law. See McKenzie v. Lombard, 85 Me. 224, 27 A. 110 (1892), and KK v. Estate of MF, 145 N.J.Super. 250, 367 A. 2d 466 (1976). If there was no such action at common law as our cases indicate, it follows that there was no action to abate at common law.” 588 S.W.2d at 78-79.
Having also noted in that state an action may be brought to establish the status of a person as an adopted child of an alleged adoptive parent after the death of that parent, the court held:
“The tendency toward the establishment of the paternity of an illegitimate child after the death of the putative father can be seen in such cases as In re Gordon, 54 Misc. 2d 967, 283 N.Y.S.2d 787 (1967) and Henry v. Rodd, 95 Misc. 2d 996, 408 N.Y.S.2d745 (1978). If an action to establish the status of a person as an adoptive child survives the death of the adoptive parent, to hold that an action to establish the status of an illegitimate child abates would seem to discriminate against the illegitimate child. Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968); Glona v. American Guarantee and Liability Insurance Company, 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441 (1968); R ___v. R ___, 431 S.W.2d 152 (Mo. 1958).
“Our trial courts are capable of discerning the truth and determining issues presented to them. We can find no logical reason to hold that an action to establish the paternity of an illegitimate child abates upon the death of the putative father. ‘The law . . . should not look with favor upon suspending the question of parentage of a child in limbo . . . .’ A.B.C. v. X.Y.Z., 50 Misc. 2d 792, 271 N.Y.S.2d 781, 785 (1966).” 588 S.W.2d at 79.
We are in agreement with the reasoning set forth by the Missouri Court of Appeals, and hold that the action by this plaintiff to determine his status as a child of defendant did not abate upon the death of defendant and plaintiff’s motion for substitution should have been granted.
The record before us clearly establishes the fact that plaintiff was conceived during lawful wedlock and born after his mother and her husband were divorced. The presumption of legitimacy is one of the strongest and most persuasive known to the law. Still, it is a rebuttable presumption and the mother of plaintiff is a competent witness to the fact. Bariuan v. Bariuan, 186 Kan. 605, 609, 352 P.2d 29 (1960); Lynch v. Rosenberger, 121 Kan. 601. Although defendant argues the trial court did not err in granting summary judgment, we note there was no finding that there remained no genuine issue as to any material fact. The court based its ruling solely upon the conclusion the cause of action did not survive. The one controlling fact to be ascertained in this cause, asserted by the mother and denied by the defendant, as revealed by his deposition taken during discovery, is whether plaintiff is in fact the son of defendant, now deceased. As this issue remains, summary judgment should not have been entered. See Lynch v. Rosenberger, 121 Kan. 601; 46 A.L.R.3d 158, 171.
Reversed and remanded for further proceedings in harmony with this opinion. | [
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Swinehart, J.:
This is an appeal by defendant Jerome A. Wirtz from the judgment of the District Court of Barton County which reformed the rental rate provision of a lease.
On January 3, 1958, defendant Wirtz entered into a real estate lease with D. F. Deutsch. At the time Deutsch was eighty-four years old and had, because of a previous stroke, given a granddaughter, Mary Sue Gillen, his power of attorney. Deutsch did not consult with Gillen prior to making the lease with defendant. The terms of the lease provided for a tract of land to be leased to defendant for a period of twenty years, commencing March 1, 1958, at an annual rental of $200 per year with an option to renew at the expiration of the twenty years for an additional twenty years under the same terms and conditions.
Deutsch died in 1966 and had conducted his own business until six months before his death. Upon his death the land went to Marie Deutsch Link, Deutsch’s daughter. In 1967 defendant Wirtz filed a copy of the lease in the public records.
Prior to March 1, 1978, defendant gave notice to Link that he was exercising his option to extend the term of his lease for an additional twenty years. Link did not agree to this extension and the rental for the first renewal period of the twenty-year extension was rejected. Link died on October 17, 1978, and this action to void or reform the lease was filed by executrixes of her estate. Plaintiff sought in equity to void the lease because it was made when M. F. Deutsch was old and allegedly unable to conduct his own business. Plaintiff also alleged undue influence and unconscionability.
At pretrial the parties made the following stipulation:
“That on the date this lease was entered into for the property intended to be conveyed the agreed rental rate of $200.00 a year was a reasonable and conscionable rental rate.”
Defendant moved for a directed verdict at the conclusion of plaintiff’s evidence. The trial court granted the motion and made the following findings:
“1. That from the evidence introduced and from the answers to interrogatories in the file, the Court finds that the evidence does not support a claim that at the time the lease was made in 1958, D. F. Deutsch was unable to know and understand the general type of business involved in the lease, and that the evidence also is lacking to support a finding that there was improper influence brought to bear on Mr. Deutsch relative to the making of the lease.
“3. The Court finds that the twenty (20) year extension period of the lease is valid and that it does not violate the rule against perpetuities. However, the Court finds that as a matter of equity the lease should be reformed as to rental. That during the base twenty (20) year lease period no reformation is to be made, but that for the second twenty (20) year period, the rental called for in the lease is unconscionable.”
The trial court then ordered an appraisal of the land to determine the fair market value of the lease. At trial, plaintiff had not offered any expert testimony concerning the fair market value of the lease. Defendant’s motion for a new trial was denied and he was ordered to appoint an appraiser. The appraisal from a panel of three appraisers set the fair market rental per year for the property at $720.
Defendant appeals from the trial court’s finding of unconscionability. He also maintains that the trial court’s adverse ruling was made without affording defendant an opportunity to take the stand and present evidence as to the merits of the case.
Defendant’s primary contention on the unconscionability issue is that the trial court used the wrong time frame when determining whether the rental provision in the lease was unconscionable. Defendant maintains that the common law doctrine of unconscionability looks to the time the contract was made to determine if the parties were in fact exercising their freedom to contract. The leading pronouncement on the doctrine of unconscionability in Kansas is Wille v. Southwestern Bell Tel. Co., 219 Kan. 755, 549 P.2d 903 (1976). Wille was an action to recover damages for negligence or breach of contract from a telephone company for an omission in the yellow pages of a telephone directory when the contract entered into by the parties limited the company’s liability for errors or omissions. Plaintiff Wille contended that the exculpatory clause was unconscionable and therefore should not be enforced. The court in Wille noted that the doctrine of unconscionability in the area of private contract has come into Kansas law by four statutory enactments: K.S.A. 16a-5-108, Uniform Consumer Credit Code; K.S.A. 50-627, Consumer Protection Act; K.S.A. 58-2544, Residential Landlord and Tenant Act; and most importantly, K.S.A. 84-2-302, Uniform Commercial Code. The court stated at 757-58:
“Although the UCC’s application is primarily limited to contracts for the present or future sale of goods (K.S.A. 84-2-102; 84-2-105), many courts have extended the statute by analogy into other areas of the law or have used the doctrine as an alternative basis for their holdings.”
The court then proceeded to use 84-2-302, the UCC unconscionability section, as a guide in a non-UCC case. We likewise use statutory unconscionability provisions as a guideline.
The basic issue on appeal here is to what point in the contractual relationship should a trial court look to determine whether a contract is unconscionable. A review of the statutes cited above reveals a clear answer: at the time the contract was made.
K.S.A. 84-2-302 reads in part:
“(1) If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract . . . .” (Emphasis supplied.)
K.S.A. 16a-5-108 reads in part:
“(I) With respect to a consumer credit transaction, if the trier of fact finds
“(a) the agreement to have been unconscionable at the time it was made, or to have been induced by unconscionable conduct, the court may refuse to enforce the agreement, or
“(b) any clause of the agreement to have been unconscionable at the time it was made, the court may refuse to enforce the agreement . . . .” (Emphasis supplied.)
The most analogous statute is K.S.A. 58-2544, the unconscionability provisions in the Residential Landlord and Tenant Act. It reads in part:
“(a) If the court, as a matter of law, finds: (1) A rental agreement or any provision thereof was unconscionable when made, the court may refuse to enforce the agreement . . . .” (Emphasis supplied.)
The court, in Wille v. Southwestern Bell Tel. Co., 219 Kan. at 759-60, stated the purpose for the doctrine of unconscionability:
“[T]he doctrine of unconscionability is used by the courts to police the excesses of certain parties who abuse their right to contract freely. It is directed against one-sided, oppressive and unfairly surprising contracts, and not against the consequences per se of uneven bargaining power or even a simple old-fashioned bad bargain (1 Anderson on the UCC, § 2-302.11, p. 401).”
As was noted above, the trial court in this case found, as was stipulated, that the rental provision was conscionable when made. The mere passage of time made the rental term appear to be unfair. Apparently time had turned this lease into a bad bargain. Despite the general rule that the trial court will look to the circumstances as they existed at the inception of the contract rather than in the light of subsequent events to determine whether the agreement is conscionable, a court is not powerless in equity to remedy that which it perceives as present unconscionability.
Although this case deals with a party seeking to have the court reform a contract, the rules concerning specific performance of contracts are applicable. In its discussion concerning specific performance of contracts, C.J.S. states:
“Specific performance of a contract is never decreed when its enforcement would be inequitable or unconscionable, or produce injustice or hardship, or where the specific performance of the contract would operate oppressively as to either party, even though there is no sufficient ground for rescission or cancellation. . . . Equity will not assist a party seeking to enforce a hard bargain. The fact that the inequity arises from provisions of the contract or the performance thereof, or from external facts or circumstances is immaterial. The harshness or oppression which would entail sufficient ground to deny specific performance need not arise from fraud, mistake, or accident in the making of the contract.
“The foregoing rules are nevertheless subject in their application to some limitations that arise out of the facts of particular cases. The rule against specific performance has been said to apply only where the consequences of enforcement cannot be deemed to have been contemplated by the parties when the contract was made. Hence, hardship, fairly and voluntarily assumed as a part of the contract sought to be enforced, cannot prevail to stay a specific performance thereof, and a bad bargain, in the absence of fraud, will not relieve a party from specific performance.” 81 C.J.S., Specific Performance § 20, pp. 737-740.
In Jensen v. Southwestern States Management Co., 6 Kan. App. 2d 437, 629 P.2d 752, rev. denied 230 Kan. 818 (1981), this court applied the foregoing rules. The defendant in Jensen owned mineral deeds, each over fifty-five years old. In five of the six mineral deeds, which were purchased in 1925, there were clauses giving the grantee a lifetime option to also use the surface upon payment of $70 or $75 per acre. The six deeds involved covered about 880 acres of Jensen’s 2040 acre ranch. This court affirmed the trial court’s holding that the price for use of the surface was now inequitable in light of the specific facts and that should the defendant exercise its option to take any surface, it must pay the reasonable value at the time of its use. Jensen, 6 Kan. App. 2d at 438.
The facts in Jensen appear to be amenable to the use of the equitable theory employed by the trial court to reform the lifetime mineral deeds. A review of the record in the present case, however, leads us to a contrary conclusion. The lease in question was entered into in 1958. The economic climate in the 1950’s, especially after the postwar recovery from the great depression, was such that it would be reasonable to assume that the parties to this twenty year lease, which provided for an option for an additional twenty years, contemplated with certainty that the value of the lease property would increase over the twenty or forty year period. Indeed, there is no evidence which suggests otherwise. The record further reveals that no real hardship or injustice would result from the enforcement of the lease. The rental provided for in the lease is $200 per year. The co-executrix of Mrs. Link’s estate testified that in her opinion a fair rental would be $500 per year. As was stated above, the lease was appraised after the trial court rendered its decision and it was determined that the fair market value of the lease is $720 per year. It is our conclusion that the lease turned out to be merely a bad bargain, and does not rise to the level of unconscionability, the enforcement of which would not result in an uncontemplated hardship or injustice necessitating equitable reformation. Therefore, it was error for the trial court to reform the lease in equity.
In Squires v. Woodbury, 5 Kan. App. 2d 596, 621 P.2d 443, rev. denied 229 Kan. 671 (1981), this court was presented with a case which also concerned the reformation of the terms of a written lease. Although the issue of unconscionability was not specifically dealt with, this court did state:
“The general rule is that competent parties may make contracts on their own terms, provided such contracts are neither illegal nor contrary to public policy, and in the absence of fraud, mistake or duress, a party who has entered into such a contract is bound thereby.” Squires v. Woodbury, 5 Kan. App. at 598.
We find that the general rule as stated in Squires is properly applicable to the present case, and therefore the trial court’s decision is reversed. To find otherwise would allow the trial court to unjustifiedly rewrite the parties’ lease.
The resolution of the first issue makes defendant’s second contention of error moot.
Reversed with instructions to enter judgment in favor of defendant. | [
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Foth, C.J.:
In this workmen’s compensation case the only issue is whether claimant timely filed an application for hearing in the office of the director. The assistant director and, on review the director, both held the filing was untimely. The district court agreed and affirmed. Claimant now appeals to this court. We affirm.
The parties stipulated to most of the essential facts. The balance came from the testimony of claimant, the records of the respondent’s insurance carrier, and the medical records of a treating physician. There is no dispute as to any of them. The following chronology appears:
October 23, 1973. Claimant had a work-related accident resulting in an injury to his lower back, later diagnosed as a ruptured disc. Respondent employer was notified the same day.
February 28, 1974. After treatment by the company doctor, on referral from his family doctor claimant first visited Dr. Donald C. Bailey, an orthopedic surgeon.
March 13-17, 1974. Claimant was paid five days of temporary total disability, $39.76.
March 23, 1974. Employer’s report of accident was filed.
October 17, 1975. November 5, 1976-Written claim was filed.
July 28, 1977. Claimant made five visits to Dr. Bailey, who prescribed conservative treatment and tranquilizers until the last visit when he recommended surgery. Claimant declined. The insurance carrier paid for these services as rendered.
August 18, 1977. The insurance carrier by letter asked claimant to call them regarding his claim. In an ensuing telephone conversation claimant was given to understand the company would pay no more medical expenses related to this accident.
September 15, 1977. The insurance carrier paid for claimant’s last visit to Dr. Bailey. It had paid before this for other medical expenses, including bills for other doctors, medicine, and hospital expenses, all incurred before July, 1977.
May 3, 1978. Claimant’s wife called Dr. Bailey’s office, secured a prescription for a pain killer and advice that claimant should secure an appointment. He did not do so, and did not seek other medical attention, because he understood the in surance company would not pay for it. He paid for the prescription; no bill for the doctor’s services was rendered to anyone.
November 14, 1979. Claimant filed his application for a hearing with the director.
The controlling statute at the time of the accident was K.S.A. 44-510e (Weeks 1973), the pertinent portion of which now appears in substantially the same form as K.S.A. 44-534(fi) (Ensley 1981):
“(b) No proceeding for compensation shall be maintained under the workmen’s compensation act unless an application for a hearing is on file in the office of the director within three (3) years of the date of the accident or within two (2) years of the date of the last payment of compensation, whichever is later.”
As may be seen, the filing of the application for hearing in 1979 came more than three years after the 1973 accident and more than three years after the 1974 filing of the employer’s report. (See Childress v. Childress Painting Co., 226 Kan. 251, 597 P.2d 637 [1979], holding that when the employer’s report is filed late, the three years commences when it is filed.)
Claimant, however, relies on the alternative period of limitation, contending his application was filed within two years of “the last payment of compensation.” In making this claim he first cites the accepted principle that the furnishing of medical care by an employer to an injured workman is the equivalent of the payment of compensation under the workmen’s compensation act. Riedel v. Gage Plumbing & Heating Co., 202 Kan. 538, 449 P.2d 521 (1969); Richardson v. National Refining Co., 136 Kan. 724, 727, 18 P.2d 131 (1933). He then points to Dr. Bailey’s prescription of May 3, 1978, as the last “payment of compensation.” Since his application for hearing was filed less than two years later it was, he says, timely. Respondent and its carrier argue on the other side that the last “payment” for medical care was made in September, 1977, more than two years before claimant’s filing of November, 1979. Dr. Bailey’s intervening prescription should not be counted, they say, because it was given without notice to them and was not paid for by them.
As we read the cases, in determining whether medical care is “compensation” under the act neither the fact nor time of payment of the bills is determinative; the issue is whether the medical care was authorized, either expressly or by reasonable implication. If the claimant receives medical care with the reasonable expectation of payment by the employer the care is “compensation” when rendered even though it may never be paid for. Two cases illustrate.
In Johnson v. Skelly Oil Co., 180 Kan. 275, 303 P.2d 172 (1956), the workman while on the job aggravated a tumor on his leg in October, 1953. He promptly sought treatment from the “company doctor,” an independent physician compensated on a fee basis. The doctor continued to treat him periodically up to the date of the hearing in 1955. The employer determined the injury was noncompensable and notified the doctor it would not pay his bills under the act in June, 1954. The worker’s claim was filed in June, 1955, well beyond the 120 days then allowed. The court held the claim was timely. Once the employer assumed the responsibility of furnishing medical care the workman was entitled to rely on that action; notice of termination to the doctor was not notice to the claimant. In that case it appears the doctor had never been paid for his services, but the furnishing of those services under what appeared to the claimant to be the authority of the employer amounted to “payment of compensation” to the claimant.
In Blake v. Hutchinson Mfg. Co., 213 Kan. 511, 516 P.2d 1008 (1973), the claimant was injured and treated by a doctor who was not the “company doctor” but who was adopted by the employer and insurance carrier as the treating physician. Weekly compensation and his bills for medical services were paid until January 1, 1970, when payments were discontinued without notice. In April of 1970, the claimant called the carrier to discover why the payments had been discontinued. The carrier immediately paid compensation through April 16, 1970. The claimant continued to receive treatment and the bills were sent to the carrier. No further compensation was paid. The additional medical bills were likewise not paid but neither were they rejected. No notice was sent to either doctor or claimant. Upon discovery that the carrier would not pay the claims after April 16, 1970, the claimant filed his claim 223 days after the last payment was made. The carrier defended on the theory that the action was filed 23 days late under the then-existing statute and was therefore barred.
Once again the court rejected the defense, relying on Johnson. The court noted:
“There was never any notice either to the doctor or to the claimant that the authority of Dr. O’Donnell had been revoked. The inference which claimant was entitled to draw from the action of the carrier in complying with his request in April to make further payment of weekly compensation was that of continuing authority for both treatment and referral.” 213 Kan. at 513.
The court went on to say that, under Johnson, even if there had been notice to the doctor it would not have been notice to the claimant. In distinguishing two earlier cases the court observed:
“[W]e do not understand either case to say that the employer or its carrier may lull a claimant into a reasonable belief that medical services were being or would be provided, and then after repudiating the obligation plead that the claim was not timely. That, as we see it, was the net effect of the respondents’ conduct in this case . . . .” 213 Kan. at 515.
In this case we have the obverse of Johnson and Blake. Here the company notified claimant, who clearly understood no more medical bills would be paid. Whether it ever notified Dr. Bailey does not appear from the record; we assume for our purposes it did not. Thus, unlike the claimants in Johnson and Blake, when this claimant sought further medical care he did not do so with any reasonable expectation that the costs would be covered; his clear understanding was that they would not. In those cases it was held the employer could not start the limitation period running by unilaterally terminating payment of medical bills without notice to the claimant. So here, having been notified that the furnishing of medical services had ceased, claimant could not toll the running of the period by unilaterally securing additional medical services. As we see it, when claimant secured the prescription from Dr. Bailey he was on his own and knew it. The doctor’s services, gratuitous or not, were not the “payment of compensation” under the act and did not extend claimant’s time to file his application for hearing. See La Fever v. Olson Drilling Co., 142 Kan. 431, 49 P.2d 967 (1935).
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Foth, C.J.:
Following a bench trial, the trial court found defendants’ oil and gas lease on plaintiffs’ land had terminated, ordered defendants to plug all wells on the land and awarded plaintiffs their attorney fees and costs. The order was based on a finding that the lease was not producing in paying quantities. Defendants appeal, contending: (1) There was no substantial competent evidence establishing that defendants’ oil and gas lease was not producing in paying quantities; and (2) the lease termination and resulting order to plug wells violates public policy prohibiting waste of natural resources.
Defendants acquired the lease in question on September 23, 1942. It is known as the Blohm lease, and is one of several operated by defendants in what is called the “Colony Field” in Allen and Anderson counties. The Blohm lease had 53 wells, both producing and injection, drilled between 1947 and 1963. Secondary recovery through water flooding resulted in peak production in 1961 and 1962. Production then declined; flooding was stopped in 1968, and the three years before suit was filed produced only 100 barrels.
Defendants have been attempting various methods of tertiary recovery in the Colony Field since 1961. At the time of trial in October, 1979, their hopes were pinned on an experimental polymer injection project being conducted on a nearby lease. Whether the experiment will be successful would not be known for another two to three years. If it is successful (and we were advised at oral argument that the issue is still in doubt) it would be another year or two before the method could be utilized on the Blohm lease. It is unknown whether, if successful in the pilot project, it would also be successful on the Blohm lease. In any event, it would be yet another five months to two years before any effect on production from the Blohm lease could be noticed.
1. The term of the lease was “five years from this date, and as long thereafter as oil or gas, or either of them is produced [in paying quantities] from said land by the lessee.” Although the bracketed phrase “in paying quantities” does not appear in the lease document, all parties agree it is included by legal implication. See Reese Enterprises, Inc. v. Lawson, 220 Kan. 300, 553 P.2d 885 (1976).
The legal standards for determining whether an oil and gas lease is “producing in paying quantities,” after drilling has been accomplished and production established, are now well established.
A. In Reese, our Supreme Court stated the “objective” legal test in the following terms:
“[W]ill [the lease] produce a profit, however small, over operating expenses, after eliminating the initial cost of drilling and equipping the well or wells on the lease which are required to prepare the lease for production.” 220 Kan. at 314.
B. In order to determine whether the required profit has been realized, the Reese court mandated the calculation of income and expense according to the following criteria:
“In arriving at the amount of income which has been realized, the lessee’s share of production or his share of receipts from the sale of oil or gas is taken into account. More specifically, the income attributable to the working interest as it was originally created is taken into account, and only the lessor’s royalty or other share of production is excluded. Thus, the share of production attributable to an outstanding overriding royalty interest will not be excluded but will be taken into account in determining income. (Clifton v. Koontz, 160 Tex. 82, 325 S.W.2d 684, 79 A.L.R.2d 774 [1959]; and Transport Oil Co. v. Exeter Oil Co., 84 Cal. App. 2d 616, 191 P.2d 129 [1948].)
“Expenses which are taken into account in determining ‘paying quantities’ include current costs of operations in producing and marketing the oil or gas. Most of the costs so incurred are easily identified as being direct costs, and present no difficulty. In this connection the lessee is held accountable for the production of the lease as a prudent operator working for the common advantage of both the lessor and the lessee. All direct costs encountered, whether paid or accrued, in operating the lease as a prudent operator are taken into account. These direct costs include labor, trucking, transportation expense, replacement and repair of equipment, taxes, license and permit fees, operator’s time on the lease, maintenance and repair of roads, entrances and gates, and expenses encountered in complying with state laws which require the plugging of abandoned wells and prevention of pollution.” 220 Kan. at 314-15. Emphasis added.
C. The proper length of the accounting period to be used in determining whether a profit has been realized was enunciated in Texaco, Inc. v. Fox, 228 Kan. 589, Syl. ¶ 3, 618 P.2d 844 (1980):
“In determining whether an oil and gas lease is producing in paying quantities, the proper accounting period is to be a reasonable time, depending upon the circumstances of each case, taking into consideration sufficient time to reflect the current production status of the lease and thus provide the information which a prudent operator would take into account in whether to continue or to abandon the operation.”
D. Texaco also established that depreciation on original oil and gas well equipment is not to be included as an item of expense in “paying quantities” calculations. 228 Kan. at 594.
E. Cessation of production in paying quantities, resulting in the termination of an oil and gas lease, must be permanent and not merely temporary. Kelwood Farms, Inc. v. Ritchie, 1 Kan. App. 2d 472, 571 P.2d 338 (1977). Further, as we said in Kelwood:
“Three kinds of evidence relevant to the question of temporary or permanent cessation of production are: (1) The period of time cessation has persisted; (2) the intent of the operator; and (3) the cause of cessation.
“Whether cessation of production is temporary or permanent is a question of fact to be determined by the trial court and such finding when supported by substantial competent evidence will not be disturbed on appeal.” 1 Kan. App. 2d 472, Syl. ¶¶ 4 & 5.
F. Cessation of production in paying quantities is legally permanent, properly terminating the lease, where the only prospect of renewed production depends upon “the successful coordination of various prospective but unassured projects and possibilities.” Kahm v. Arkansas River Gas Co., 122 Kan. 786, Syl. ¶ 2, 253 Pac. 563 (1927).
The trial court, after findings of fact reviewing the evidence, entered the following mixed factual finding and legal conclusion:
“To avoid termination of the lease the lessee must operate the same to produce sufficient quantities of oil or gas which will produce a profit over operating expenses. Defendant Colt does not maintain records which would show operating expenses attributable to the Blohm lease only. I conclude, however, that oil has not been produced in paying quantities inasmuch as Colt testified that it would be economically impractical to produce any of the leases in the Colony Field individually. Further, it has been shown that for the 2 xh year period immediately prior to the filing of the Petition less than 100 barrels of oil was produced from the lease. At the time of the filing of the lawsuit oil was selling at approximately $12.00 per barrel. Of the 53 wells on the lease, only four were producing. Continued operation of the lease without some form of tertiary recovery would require that the remaining wells be plugged pursuant to Kansas law. The cost of plugging such wells could range from $300.00 to $700.00 per well. In addition, other expenses of a prudent operator should be taken into account. These include labor, trucking, transportation expenses, replacement and repair of equipment, taxes, license and permit fees, operator’s time on the lease, maintenance and repair of roads, entrances and gates, and other expenses. (Reese, P. 314) Further, Colt has indicated in his testimony that further development of the Blohm lease is impractical unless the Polymer Project is successful. Throughout the testimony there is indication that Colt’s desire to retain the lease is based upon the success or failure of the Pilot Project on the Keown lease. If the project is successful he plans to initiate an enhanced recovery project on the Blohm lease. (Although it is noted that his expert witnesses have not determined whether a Polymer Project would be successful thereon.) I can only conclude that at the time of the filing of the lawsuit production of oil on the Blohm lease was not in paying quantities as that phrase is defined under Kansas law. Colt’s intentions with regard to the Blohm lease are at this time only speculative in nature, which speculation is to be avoided as stated in the Reese case.”
The trial court then concluded that the cessation of production in paying quantities was permanent and found the subject lease had terminated by its own terms.
As previously mentioned, defendants contend the trial record lacks substantial competent evidence to support the trial court’s fundamental conclusion that the lease was not producing in paying quantities. In this connection, defendant argues the trial court ignored uncontroverted evidence that the lease had yielded a small annual profit from 1974 through the first ten months of 1979. In our view, there are several fallacies in defendant’s contention.
First, defendant’s calculations of the “uncontroverted” profit are highly suspect. Defendants suggest one set of expense figures in their initial brief, and a different set in their reply brief. Defendant Colt’s testimony on expenses was not only limited to vague estimates but was at best ambiguous. For example, his $50 figure for pump repair was eventually qualified as being “for each one.” Whether this meant each well pulled or simply each well is not clear. In either event it adds at least $50 to the various expense figures relied on here and, as noted below, this item alone more than consumes the claimed profit.
Second, none of the various figures urged by defendant as correct take into account certain expenses — expenses admitted to exist, but indefinite in amount. These expenses include taxes, license and permit fees, maintenance and repair of roads, entrances and gates, and other expenses described by Colt as “little items.” Figures in defendant’s reply brief show a net profit for 1976 and 1977 of $11.00 per year, before taking into account these “little items.” Inasmuch as “[a]ll direct costs encountered, whether paid or accrued, in operating the lease as a prudent operator are taken into account,” as the Reese court noted, we conclude that the trial court was entirely justified in finding that existing but unaccounted for expenses, whether paid or merely accrued, were greater than the marginal profit figure urged by defendant. 220 Kan. at 314. Defendant has not demonstrated that those expenses, again, conceded to exist, were less. On this record, defendants demonstrate no error.
Third, defendant’s expense figures do not include the cost of plugging abandoned wells on the lease. The cost of plugging just one well would easily surpass defendant’s slim annual profit estimate. Defendants do not contest their obligation to plug abandoned wells. They also concede such costs, whether incurred or merely accrued, are required to be included in production calculations. Defendants contend, instead, that the 49 non-producing wells on the subject lease are not abandoned. This argument hinges on defendants’ alleged plans to attempt tertiary recovery from these wells at some unspecified date in the future. Undoubtedly, temporary cessations of production — whether for the purpose of changing production methods or some other purpose — would not warrant a termination of a lease such as the one before us. Kelwood Farms, Inc. v. Ritchie, 1 Kan. App. 2d 472. In our view, however, an oil and gas lessee, temporarily ceasing production, thereafter has only a reasonable time, under all the circumstances, to return the leasehold to production in paying quantities. Where renewed production depends, if at all, upon “various prospective but unassured projects and possibilities,” termination is appropriate. Kahm v. Arkansas River Gas Co., 122 Kan. 786, Syl. ¶ 2.
In the case at bar, defendants have no plan to attempt tertiary recovery on the lease in question unless and until the Keown lease Pilot Project, as yet incomplete, is successfully concluded. Even if that project is successful, it still will not be known whether the recovery method used there will be effective on the subject lease. It has now been approximately 14 years since active secondary recovery ended. Although estimates were made at trial, at oral argument here no definitive estimate could be given by defendant concerning when even the Pilot Project would be completed. Because tertiary recovery on the subject lease hinges, in part, on the success of that project, no reasonable estimate can be given as to a date in the future for the renewal of production in paying quantities on the leasehold in question. On this record, we conclude, as the trial court did, that defendant’s reasonable time to commence production had passed; that the wells were in fact abandoned; and that the substantial costs of plugging these wells were properly chargeable as expenses in calculating whether the lease was producing in paying quantities.
Fourth, at trial, defendants’ expense figures for the lease in question were arrived at by a proration of their total costs of operation for the entire Colony Field. Defendant conceded that it would not be “economical” to operate any of the leases, including the one in question, on an “individual basis.” Defendants’ logic is again flawed. The lease before us does not base termination upon whether the Colony Field can be produced in paying quantities. The lease provides for termination in the event oil and gas are not produced in paying quantities “from this land.” “This land,” in our view, is the land covered by the lease. Once again, the record supports the trial court’s ultimate conclusion.
For all of the foregoing reasons, we conclude that the record contains ample substantial competent evidence to support the trial court’s findings and conclusions and that, accordingly, defendants have failed to demonstrate error.
2. Defendants’ final contention is that the result reached by the trial court is contrary to public policy prohibiting waste of natural resources. Determinations of policy always require a balancing of competing social interests. On the issue before us, the trial court reasoned as follows:
“I do not feel comfortable in passing from this question without making the following observations. I take judicial knowledge that increased production of oil is necessary to the future of this country. The Pilot Project now in operation on the Keown lease should be given encouragement and to this extent I wish the defendant success. My personal feeling is that I would like to give the defendant Colt an opportunity to prove the Polymer Injection Method before cancelling the lease. However, I cannot find it in the law that I have that right. To do so would require that I rewrite the lease entered into by the defendant in 1942.1 further am aware that if each of the lessors choose to terminate the leases owned by Colt, we will not know whether the Polymer Injection Process will result in a successful form of tertiary recovery. To change the law, however, is an act required of the legislature, not of the courts, and if I were to insert my personal views I would be violating the amending process.
“Further, consideration must be given to the rights of the landowner. He should not be burdened with the existence of oil tanks, buried pipelines, unsightly slush pits, oil spills, casing pipes jutting from the ground, and other inconveniences incidental to the operation of an oil and gas lease while receiving only meager royalties and with no assurance that such royalty will ever increase in amount. In its Suggested Findings of Fact defendant proposed an alternative judgment by which the Court would order plaintiff to accept what in effect is a minimum royalty until the success of the Pilot Project has been determined. This course of action was suggested by me to both counsel during the course of the trial as a possible means of settlement. The parties were unable to agree on such settlement. I do not believe I have the right, as I have previously stated, to rewrite the lease and provide for such minimum royalty.”
We concur.
Plaintiffs’ motion for costs and attorney fees is denied.
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Spencer, J.:
The issues presented on this appeal are whether plaintiff held a valid security interest in a partner’s interest in a partnership contract for sale of an oil and gas lease, and if so, the priority to be granted such interest. Only defendant Rosebaugh has appealed.
On May 16, 1978, Nicolay and Rosebaugh, partners doing business as Holly Oil Company, entered into a contract for the assignment to Diamond B Industries, Inc., of an oil and gas lease known as the Tarr Lease for the sum of $100,000, to be paid $40,000 down and the balance of $60,000 with interest in equal monthly installments. The contract contained the following provision;
“An Assignment of said Lease shall be executed forthwith and placed in escrow at the Wellsville Bank, Wellsville, Kansas, to be delivered to the said Party of the Second Part on final payment. All monthly payments shall be made at the Wellsville Bank.”
Pursuant to their contract, about which no question is raised on appeal, Nicolay and Rosebaugh, d/b/a Holly Oil Company, exe cuted an assignment of the lease in favor of Diamond. The original of that assignment, together with the contract for assignment and an affidavit to the effect the Tarr Lease was thereafter to be operated by Diamond, were delivered into escrow with plaintiff. At that time, Nicolay arranged for a checking account to be established with plaintiff in the names of Charles D. Nicolay and Duane H. Rosebaugh. In accord with this arrangement, payments made pursuant to the escrow provisions of the contract were transferred into that account. This was done through February, 1979. The record reveals the proceeds were paid to Nicolay and Rosebaugh in equal proportion.
On June 19, 1978, Nicolay obtained a loan from plaintiff in the amount of $25,000 for which he executed and delivered to plaintiff his promissory note and an instrument entitled “Security Agreement,” in which there was designated as collateral certain specified equipment and “Assignment of contract.” Nicolay then also executed and delivered to plaintiff an instrument whereby he assigned to plaintiff all of his “rights to make payment and receive all benefits” under the May 16, 1978, partnership contract with Diamond. This instrument describes the Tarr Lease by its date, names of the lessors and lessee, description of the real estate leased, and the recording data of the lease. This instrument, entitled “Assignment,” provides that the assignment was made to secure plaintiff against any loss incurred by reason of the loan granted Nicolay.
Nicolay’s note to plaintiff was not paid when due and on March 7, 1979, Nicolay executed a renewal note to plaintiff in the amount of $29,382.29. On March 16, 1979, plaintiff learned of an anticipated sale of certain of the equipment in which it claimed a security interest and made demand on Nicolay that all money resulting from that sale be applied to his note.
Four days later, Nicolay and Rosebaugh went to the Peoples National Bank & Trust, Ottawa, Kansas, with an original copy of the Diamond contract, identical to the one placed in escrow with plaintiff. Under date of March 20, 1979, Nicolay and Rosebaugh entered into an agreement with Peoples for the purpose of administering the provisions of the Diamond contract. Nicolay and Rosebaugh then executed a “Security Agreement” in favor of Peoples by which they attempted to convey a security interest in an oil and gas lease executed in 1977, involving the Tarr Lease. The trial court found this to be an attempt to encumber something that did not exist. Though the record becomes unclear at this point, it appears on May 21, 1979, Peoples was given a security interest in the Diamond contract, which it perfected by means of a financing statement filed on that date. In any event, plaintiff became aware of what had transpired and on April 24, 1979, called for full payment of the Nicolay note. This action followed and after trial the court found: (1) Nicolay had lawfully assigned his rights under the Diamond contract to the Wellsville Bank as security for his note; (2) Nicolay had defrauded the Wellsville Bank in re-assigning his rights in the Diamond contract; (3) the Wellsville Bank’s security agreement and Nicolay’s assignment of his rights in the Diamond contract effected a perfected security interest in such rights in accordance with K.S.A. 1980 Supp. 84-9-305; and (4) Peoples’ rights to Nicolay’s interest in the Diamond contract were “inferior” to the rights of plaintiff. Judgment for plaintiff was entered accordingly.
As related, Nicolay and Rosebaugh entered into the Diamond contract on behalf of their partnership, Holly Oil Company. On this basis, Rosebaugh contends Nicolay’s assignment to plaintiff of his rights to “receive all benefits” under that contract was void in that it purported to convey an interest in specific partnership property.
K.S.A. 56-324 provides:
“The property rights of a partner are (1) the partner’s rights in specific partnership property, (2) his or her interest in the partnership, and (3) his or her right to participate in the management.”
K.S.A. 56-325(b), pertaining to the nature of a partner’s right in specific partnership property, provides in part:
“The incidents of this tenancy are such that:
“(2) A partner’s right in specific partnership property is not assignable except in connection with the assignment of rights of all the partners in the same property.”
K.S.A. 56-326 defines the nature of a partner’s interest as his or her share “of the profits and surplus, and the same is personal property.” Emphasis added. K.S.A. 56-327(a) deals with the assignment of a partner’s interest, and provides:
“A conveyance by a partner of his or her interest in the partnership does not of itself dissolve the partnership, nor, as against the other partners in the absence of agreement, entitle the assignee, during the continuance of the partnership, to interfere in the management or administration of the partnership business or affairs, or to require any information or account of partnership transactions, or to inspect the partnership books; but it merely entitles the assignee to receive in accordance with his or her contract the profits to which the assigning partner would otherwise be entitled. ” Emphasis added.
In Gaynes v. Wallingford, 185 Kan. 655, Syl. ¶ 3, 347 P.2d 458 (1959), it was held:
“The corpus of the assets is partnership property, and neither partner separately has anything in that corpus; the interest of each is only his share of what remains after the payment of all partnership debts and all accounts between the partners are settled.”
As the language employed in Nicolay’s assignment to plaintiff refers to his rights to receive benefits under a partnership contract as opposed to his rights to receive profits and surplus from the partnership, Rosebaugh contends the assignment was an unlawful attempt to assign an interest in specific partnership property, the Diamond contract; and because of K.S.A. 56-325(fc)(2), no interest was in fact transferred. We cannot accept Rosebaugh’s position as the record before us clearly demonstrates that Nicolay’s assignment to plaintiff was not of specific partnership property, but rather the portion of the proceeds from the sale of a partnership asset to which Nicolay as an individual would otherwise have been entitled to receive and retain. The assignment to plaintiff had no effect on the conduct of the partnership business or on the possession, management or disposition of partnership property.
In In re Decker, 295 F.Supp. 501 (W.D.Va. 1969), aff'd 420 F.2d 378 (4th Cir. 1970), the court was called upon to deal with the question of whether an assignment of a partner’s interest in specific partnership property might be valid as an assignment of his partnership interest. The question arose from an attempt by the trustee in bankruptcy to set aside certain deeds of trust executed by Decker. It was there stated:
“The trustee relies on Windom National Bank v. Klein, 191 Minn. 447, 254 N.W. 602, 604 (1934), for the proposition that the purpose of section 25 (b) (2) is to prevent an assignment of a partner’s interest in specific partnership property, and ‘the only way, therefore, to apply it according to its plain purpose is to nullify all attempts at such assignments. The law is that they were void aa<‘ .’ However, the court in Windom National Bank v. Klein expressly left open the question here presented. The trustee also quotes an article by William Draper Lewis, a draftsman of the Uniform Partnership Act; ‘In other words, a partner may assign partnership property for a partnership purpose, but if he attempts to assign the property for his own purposes he makes no assignment at all, because the act destroys the quality of assignability for any but a partnership purpose.’ Lewis, The Uniform Partnership Act, 24 Yale L.J. 617, 634 (1918).
“This statement of the law is correct as far as it goes, but Dean Lewis qualified the statement with his comments in Commissioners Note, 7 Uniform Laws Anno. 147 (1949):
‘Of course, an attempted assignment of all the partnership property, void as an assignment of the rights of either of the partners in the property, or an attempted assignment by one partner of his rights in all the partnership property, may be regarded as a valid assignment of the partner’s interest in the partnership.’
“It has been so regarded in the following cases, decided under the Uniform Partnership Act: Shapiro v. United States, 83 F.Supp. 375 (D.C.Minn.) Aff’d 178 F.2d 459 (8th Cir. 1949); Valley Springs Holding Corp. v. Carlson, 56 S.D. 163, 227 N.W. 841 (1929).
“The rationale of the Shapiro case is apposite: Where an assignment is not clearly intended to convey a partner’s interest in specific partnership property, that is, his right to use partnership property for partnership purposes, but is intended to convey some interest in partnership property, the fact that the parties did not couch their assignment in proper terms does not justify a court’s holding their transaction void when there exists evidence establishing a basis upon which the transaction can be consistent and valid. 83 Supp. at 377.” 295 F.Supp. at 511.
In the more recent decision of Stroebel-Polasky Co. v. Slachta, 106 Mich. App. 538, 308 N.W.2d 273 (1981), the court followed Decker and Shapiro in holding a partner’s mortgage of partnership real estate was proscribed as an assignment of the partner’s rights in specific property of the partnership, but that the mortgage was to be construed as effecting a transfer of the interest in the property that the partner could transfer, i.e., his interest in the partnership itself, defined as his share of the profits and surplus.
We conclude as did the trial court that Nicolay’s assignment to plaintiff was not an assignment of a partnership asset, but rather an assignment of Nicolay’s individual share of the proceeds resulting from the partners’ transaction with Diamond. As such, it was of personal property susceptible to assignment. See 68 C.J.S., Partnership § 85 [a]; 60 Am. Jur. 2d, Partnership §§ 104, 106; Jones v. Way, 78 Kan. 535, 536, 97 Pac. 437 (1908).
It is argued however that, notwithstanding the validity of Nicolay’s assignment to plaintiff, it did not create an enforceable security interest.
K.S.A. 1980 Supp. 84-9-203 provides in part:
“(1) Subject to the provisions of section 84-4-208 on the security interest of a collecting bank and section 84-9-113 on a security interest arising under the article on sales, a security interest is not enforceable against the debtor or third parties with respect to the collateral and does not attach unless
“(a) the collateral is in the possession of the secured party pursuant to agreement, or the debtor has signed a security agreement which contains a description of the collateral and in addition, when the security interest covers crops growing or to be grown or timber to be cut, a description of the land concerned; and
“(b) value has been given; and
“(c) the debtor has rights in the collateral.” Emphasis added.
There is no real question but that the requirements of (1 )(b) and (c) were satisfied. The determinative question is whether either of the alternative requirements of (l)(o) were met.
Rosebaugh directs attention to that instrument delivered by Nicolay to plaintiff entitled “Security Agreement” and notes the relevant portion of the collateral is described as simply “Assignment of contract.” Suffice it to say, such a description does not reasonably identify the contract rights sought to be secured. K.S.A. 1980 Supp. 84-9-110. Plaintiff tacitly concedes this point, but contends an enforceable security interest was nevertheless created by virtue of its physical possession of the Nicolay assignment. This raises the question of whether a secured party may take possession of contractual rights, intangibles, by physically holding the document evidencing the assignment of such rights.
In Walton v. Piqua State Bank, 204 Kan. 741, 466 P.2d 316 (1970), the court analyzed the issue of whether delivery of a savings account passbook to the pledgee constituted a valid pledge of the savings account fund, an intangible. The court reviewed Annot., 53 A.L.R.2d 1396, 1398:
“ ‘Problems involved in the free transfer of intangible property interests have been substantially solved, as to a large class of such rights, by the introduction of the concept of negotiability, by virtue of which a document representing the right is vested with many of the characteristics of an actual chattel, and it seems to be settled that such a right may be pledged by delivery of the negotiable instrument which represents it. However, there remains a large class of intangibles which may in some sense be said to be represented by a commercial document which is not, however, negotiable, and the question is frequently presented whether such a right may be pledged by delivery of the document in question. This question may be answered simply, although not too helpfully, by saying that the courts generally recognize that if the document delivered does represent the right to the extent that it stands in the place of, or embodies, or reifies, the intangible, a pledge of the document amounts to a pledge of the right.”204 Kan. at 754-755; emphasis added.
The court delineated such documents as “indispensable instru ments,” and adopted the definition set forth in Restatement of the Law, Security § 1:
“Comment (e) defines ‘indispensable instrument’ as meaning the formal written evidence of an interest in intangibles so representing the intangible that the enjoyment, transfer or enforcement of the intangible depends upon the possession of the instrument.” 204 Kan. at 756.
Accord, 68 Am. Jur. 2d, Secured Transactions § 74.
The enjoyment and enforcement of contractual rights obtained by means of written assignments do not depend for their existence upon the assignee’s possession of the instrument of assignment, it being evidence merely of the underlying agreement. The assignment document does not embody the rights assigned and is therefore not an “indispensable” writing.
For these reasons, plaintiff’s possession of the assignment executed by Nicolay did not create a possessory security interest pursuant to K.S.A. 1980 Supp. 84-9-203(l)(a). Nevertheless, a valid security agreement does exist, though not designated as such, in the assignment executed by Nicolay in favor of plaintiff. A “security agreement” is one which creates or provides for a security interest. K.S.A. 1980 Supp. 84-9-105(i). It must reasonably identify the collateral [K.S.A. 1980 Supp. 84-9-110], and be signed by the debtor [K.S.A. 1980 Supp. 84-9-203(l)(a)]. The assignment from Nicolay to plaintiff satisfies these requirements.
It was the judgment of the trial court that the interest of Peoples National Bank & Trust was inferior to that of plaintiff and Peoples did not appeal. Rosebaugh has failed to demonstrate his entitlement to relief. The judgment of the trial court must therefore be affirmed. | [
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Abbott, J.:
This appeal arises out of a collision between a motorcycle operated by Lyle Putter and a truck operated by the defendant, Dallas Bowman. Putter died as the result of injuries received in the collision. An action for wrongful death and a survival action were commenced and subsequently consolidated for trial. The jury determined Putter to have been 49 percent at fault and Bowman 51 percent, and found damages in the amount of $3,212.40.
Putter’s parents and administrator appeal, contending that the verdict is so inadequate that it indicates passion or prejudice on the part of the jury, and that the trial judge erred in not directing a verdict for plaintiffs on the issue of liability.
DIRECTED VERDICT
Our standard of review of a motion for directed verdict is well established and was recently restated in Care Display, Inc. v. Didde-Glaser, Inc., 225 Kan. 232, Syl. ¶ 5, 589 P.2d 599 (1979):
“In ruling on a motion for directed verdict pursuant to K.S.A. 60-250, the court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought, and when the evidence is such that reasonable minds could reach different conclusions thereon, the motion must be denied and the matter submitted to the jury. The same basic rule governs appellate review of a motion for a directed verdict.”
We believe the trial court correctly submitted the question of comparative fault to the jury. When the evidence is viewed in the light most favorable to Bowman, as we must view it when considering a motion for a directed verdict against him, it reveals the following: The accident occurred in Kinsley, Kansas, on a level section of U.S. Highway 56. Although the State of Kansas refuses to recognize the highway at that point as a four-lane road (because it is less than one foot too narrow to meet highway standards), the City of Kinsley considers it to be four-lane. The accident happened on a clear day and both drivers had an unobstructed view of each other. Wheat harvest was being completed. Bowman had brought a partial load of wheat to the elevator in a large grain truck. Putter had grown up on his father’s farm and worked there until his death. He had lived near Kinsley all of his life and would have been familiar with the general area where the accident occurred.
The grain elevator where Bowman was to unload his wheat is separated from the scales by about one and a half blocks. Bowman was proceeding from the scales to the elevator and was making a left turn across the eastbound lanes of traffic when the accident occurred. The point of impact was determined to be approximately eight feet south of the line dividing the eastbound and westbound traffic. Witnesses described Bowman’s truck as “creeping” prior to commencing the left turn, and there was evidence from which a jury could have determined its speed to be five miles per hour or less prior to commencing the turn. Bowman told a highway patrolman that he first observed Putter after Bowman started his turn and Putter was 100 feet from the truck. Witnesses testified Bowman stopped the truck prior to impact. Whether Putter had an opportunity to reduce his speed or avoid the collision after he had reason to know the truck was going to turn in front of him was a jury question. Much of the evidence is highly susceptible to conflicting interpretation by a jury. Plaintiffs’ witnesses indicated the decedent was 15 to 20 feet from the truck, traveling 30 to 40 miles per hour when Bowman turned left. If so, assuming the jury found the truck to be going less than five miles per hour, the cycle would have been a considerable distance past the point of impact before the truck arrived at that point. In addition, the credibility of the testimony of two of defendant’s witnesses was in issue. A priest testified he witnessed the impact, crossed the street, examined the decedent and administered the last rites before the two witnesses who testified they were following the defendant at a distance of less than one block arrived at the scene. Credibility of witnesses and determination of fault are jury issues. We conclude the trial judge was correct in submitting the comparative fault issue to the jury. We might have found a larger percentage of fault on the part of Bowman had we been the trier of fact, but that is not the test on appeal. That determination was a question for the jury, and from the record before us we are unable to say that the jury’s apportionment of fault amounts to reversible error.
DAMAGES
The jury found that plaintiffs sustained damages of $3,212.40. This figure is 75 cents less than the amount Bowman admitted to as decedent’s medical and funeral expenses. We deem the 75-cent discrepancy insignificant in our decision concerning this case. The law does not concern itself with trifles. Doner v. Deal, 104 Kan. 793, 796, 180 Pac. 766 (1919). The question before us is whether, at least on the question of damages, plaintiffs are entitled to a new trial by virtue of the jury having limited damages to the medical and funeral expenses. Plaintiffs argue that by failing to award any damages for conscious pain and suffering, the jury disregarded the evidence pertaining to it, and this shows passion and prejudice. The same argument is made concerning damages for wrongful death. We treat the two arguments separately, because they present separate legal problems.
The record before us gives a valid reason why the jury did not award damages for conscious pain and suffering. The jury was generally instructed what Putter’s estate was seeking damages for, and conscious pain and suffering was mentioned. There is evidence in the record that Putter was conscious and that he had severe injuries. The pretrial order and also the comments of counsel during trial show that Putter’s estate was seeking damages for conscious pain and suffering. The record does not contain opening statements and closing arguments, so we have no way of ascertaining how the case was argued to the jury. As we view it, the real problem concerning the failure to award damages for conscious pain and suffering is that no one requested an instruction to the jury that it could award damages for conscious pain and suffering, and no one objected to the failure to give such an instruction. The jury was given the instruction from PIK Civ. 2d 9.32 (1977) on wrongful death of a child. As noted in the comment to PIK Civ. 2d 9.01 (1977), when an action for wrongful death is joined with an action brought by the personal representative of a deceased for damages sustained during the deceased’s lifetime, appropriate parts of PIK 9.01 as well as the appropriate instruction on damages due to wrongful death shall be given. The failure to give such an instruction is, in our opinion, clearly erroneous. The jury was specifically instructed what it could award damages for, and pain and Suffering was not mentioned; thus, the earlier instruction that damages for conscious pain and suffering were being sought would be of little help in curing the failure to give an appropriate instruction. The plaintiffs did not raise the issue on appeal, however, and we decline to reverse on that basis.
A jury may not arbitrarily nor from partiality nor caprice disregard uncontradicted or unimpeached testimony, nor may it disregard the only evidence upon a material question in controversy by returning a verdict in direct opposition thereto. Lorbeer v. Weatherby, 190 Kan. 576, 580, 376 P.2d 926 (1962).
In Corman, Administrator v. WEG Dial Telephone, Inc., 194 Kan. 783, 402 P.2d 112 (1965), Justice Fontron spoke for the court concerning the inadequacy of a verdict in a wrongful death action. The case was one in which the jury awarded the parents $900 more than the undisputed medical and burial expenses for an 18-month-old boy. Justice Fontron said:
“However, the adequacy of the plaintiff’s recovery in this case cannot be determined by striking an average of amounts which juries may have allowed in other cases, either in Kansas or elsewhere. We are not at liberty to adopt a quotient rule. Each case in which the adequacy, or inadequacy, of a verdict is called in question must be determined on the basis of its own facts. Amounts allowed in other cases can be illuminating only as they may tend to indicate the bounds beyond which a sound public conscience will permit no trespass. . . .
“It is not possible for any one of us to equate a human life with coin or currency. Under moral concepts which are basic to our kind of society, human life is beyond value. Only the Creator of life may judge the intrinsic worth of a man, or of a child. This court has said on more than one occasion that suffering is without known dimensions and that no exact relationship exists between physical pain or mental anguish and money. [Cite omitted.]” 194 Kan. at 784-85.
The Supreme Court has pointed out that the assessment of damages is ordinarily a matter for the jury to determine, and the courts must exercise great restraint in granting new trials based on the inadequacies of a verdict. 194 Kan. at 788. When, however, the verdict is so inadequate that it'indicates passion and prejudice, this court has the duty to grant a new trial. Henderson v. Kansas Power & Light Co., 188 Kan. 283, 362 P.2d 60 (1961). We are not unmindful that the decedent in the case at bar was not a minor. He was 19 years of age, living at home and working with his family in a farming operation. The record indicates there was a close family relationship, and the pain suffered by his parents is obvious and substantiated in the record. In Roda v. Williams, 195 Kan. 507, 514, 407 P.2d 471 (1965), the Supreme Court refused to reverse a $4,000 wrongful death award to the parents of a 20-year-old boy. The record there was silent concerning the relationship between the decedent and his parents, and it appears the verdict included over $2,000 for nonpecuniary damages. The exact amount to be awarded for nonpecuniary damages is a question for the jury. In the case before us, there was no award to Putter’s parents for their nonpecuniary loss. If the jury in this case had awarded plaintiffs two or three thousand dollars more than the medical and burial expenses, our decision would be a more difficult one.
In a wrongful death action, the trier of facts is not required as a matter of law to award damages for any or all of the elements authorized by K.S.A. 60-1904. The jury, however, must not disregard the law and evidence and award nothing when the record clearly discloses an entitlement to damages for at least some of the elements for which recovery is permitted. The record before us convinces us the verdict is so inadequate that it indicates passion and prejudice on the part of the jury and requires a new trial.
The question arises whether plaintiffs are entitled to a new trial on all issues or to one limited to the nature and amount of damages. Prior to the advent of comparative negligence (K.S.A. 60-258a), a new trial could be limited to the issue of damages when that issue and liability were separable and the interests of justice would be served by a separate trial on the single issue. A new trial on both issues was granted when the record indicated that inadequate damages were awarded as a compromise on the issues of liability and damages. Corman, Administrator v. WEG Dial Telephone, Inc., 194 Kan. 783; Timmerman v. Schroeder, 203 Kan. 397, 401-02, 454 P.2d 522 (1969). In fairness to the trial judge here, we note that plaintiffs did not file a motion for a new trial; thus, the trial judge had no opportunity to rule on the adequacy of the verdict. Such a motion is not necessary, however, for us to consider the issue on appeal. Atkinson v. Orkin Exterminating Co., 5 Kan. App. 2d 739, 625 P.2d 505, aff’d 230 Kan. 277, 634 P.2d 1071 (1981). The jury in this case was instructed to fix damages without considering the percentage of fault of the parties. In view of the instruction on comparative fault, of the instruction not to consider the percentage of fault in fixing damages, and of the jury’s finding of fault within a range which we feel is supported by the record, we are unable to say the inadequate damages were awarded as a compromise on the issue of liability.
Reversed and remanded with directions to grant a new trial on the issue of damages only. | [
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Parks, J.:
This is an appeal by the defendant Cheryl R. Robinson from a judgment of the district court holding that her counterclaim for damages arising out of plaintiff’s alleged violations of the Truth in Lending Act, 15 U.S.C. § 1601 et seq. (1976), was barred by the statute of limitations.
In May 1978, defendant executed a security agreement and installment note for the purchase of a 1975 automobile. The note and security agreement were subsequently assigned to the plaintiff, United Missouri Bank of Kansas City. After defendant defaulted on the payments and the proceeds of the repossession sale were applied to the balance due on the note, this suit was brought to recover a deficiency judgment of $1,856.76. Defendant raised two technical defenses and counterclaims in avoidance of plaintiff’s action. The first defense was that the installment note signed by the defendant and purchased by the plaintiff was negotiable and therefore in violation of K.S.A. 16a-3-307. The trial court held that the note was not negotiable and this point is not disputed on appeal. The second defense alleged a violation of the federal Truth in Lending Act and asserted a claim for damages based on that Act. Because the loan agreement was entered into on May 15, 1978, and the counterclaim was not filed until April 2, 1980, the trial court held that the counterclaim was barred by the one year statute of limitations mandated by 15 U.S.C. § 1640(e).
The Truth in Lending Act, 15 U.S.C. § 1601 et seq., was intended to aid consumers in making informed decisions concerning the extension of credit by requiring use of a uniform vocabulary and disclosure of the costs of credit. 15 U.S.C. § 1601. In order to compel disclosure, Congress created a cause of action for consumers who did not receive the proper disclosures, which included civil penalties (15 U.S.C. § 1640 [a][2][A]) and provisions for attorney fees. 15 U.S.C. § 1640 (a)(3). The Act is remedial in nature and must be liberally construed in favor of the consumer in order to effectuate the underlying congressional purpose. Ed Marling Stores, Inc. v. Miracle, 6 Kan. App. 2d 175, Syl. ¶ 1, 627 P.2d 352 (1981). However, the actions of aggrieved consumers are limited by the following two provisions:
15 U.S.C. § 1640(e) provides:
“Any action under this section may be brought in any United States district court, or in any other court of competent jurisdiction, within one year from the date of the occurrence of the violation.”
15 U.S.C. § 1640(h) provides:
“A person may not take any action to offset any amount for which a creditor is potentially liable to such person under subsection (a)(2) of this section against any amount owing to such creditor by such person, unless the amount of the creditor’s liability to such person has been determined by judgment of a court of competent jurisdiction in an action to which such person was a party.”
The district court interpreted these two provisions and held that defendant’s counterclaim was barred by each section.
I. Choice of Law
Before reviewing the substance of this holding, we must consider whether state or federal law governs our determination of the issues. The Truth in Lending Act permits any court of competent jurisdiction to entertain an action to enforce its provisions. 15 U.S.C. § 1640(e). Additionally, the entire federal Act is incorporated by reference in Kansas law (K.S.A. 16a-3-206) and independent remedies are available in the state cause of action. K.S.A. 16a-5-203(l). However, no action may be maintained for the same violation pursuant to both the federal Act and the Kansas incorporation of that Act. K.S.A. 16a-5-203(7). Thus, an aggrieved debtor must choose to pursue his claim in our courts in an action premised on either the Kansas Consumer Credit Code (K.S.A. 16a-l-101 et seq.) or the federal cause of action created by the Truth in Lending Act. In this case, defendant chose in stating her counterclaim, to seek the remedies of the federal Act. We, therefore, must decide what law should govern the resolution of a federally-created cause of action raised as a defense in state court.
The Truth in Lending Act creates a federal right against lenders which may be litigated in state court. Moreover, state courts are required to enforce federal law under the supremacy clause of Article VI of the United States Constitution. Testa v. Katt, 330 U.S. 386, 91 L.Ed. 967, 67 S.Ct. 810 (1947).
In Dice v. Akron, C. & Y. R. Co., 342 U.S. 359, 361, 96 L.Ed. 398, 72 S.Ct. 312 (1952), suit was instituted in state court on the basis of the Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq. (1946). The Supreme Court held that the validity of the employer’s defense raised a federal question to be determined by federal rather than state law. The court was specifically concerned that only if federal law controlled could the Act be given the uniform application necessary to effectuate its purpose throughout the country. See also Clearfield Trust Co. v. U. S., 318 U.S. 363, 87 L.Ed. 838, 63 S.Ct. 573 (1943).
The federal rights created by the Truth in Lending Act require similar protection from local bias if its goal of compelling uniform disclosure of credit terms is to be carried out. Household Consumer Disc. v. Vespaziani, 490 Pa. 209, 215, 415 A.2d 689 (1980). Additionally, there appears to be no reason to alter this conclusion when the federal right is asserted defensively. Household Consumer Disc., 490 Pa. at 216. We therefore conclude that the viability of defendant’s counterclaim must depend on our interpretation of the federal law.
II. Effect of § 1640(e)
Defendant acknowledges that the one year statute of limitations of § 1640(e) would bar an affirmative action for damages because more than one year has elapsed since the alleged violations occurred. However, she contends that a counterclaim raising truth in lending violations in defense should not be time barred because (1) the counterclaim is in the nature of a recoupment which under common law is unaffected by the statute of limitations, and (2) the policies underlying the Act would not permit such a limitation.
“Recoupment is the right of a defendant, in the same action, to cut down the plaintiff’s demand either because the plaintiff has not complied with some cross obligation of the contract on which he sues or because he has violated some duty which the law imposes on him in the making or performance of that contract. It means a deduction from a money claim whereby cross demands arising out of the same transaction are allowed to compensate one another, the balance only to be recovered.” 20 Am. Jur. 2d, Counterclaim, Recoupment and Setoff § 1, p. 228. (Emphasis added.)
The classification of a defense as recoupment rather than setoff turns on whether the claim arises from the “same transaction” as the plaintiff’s cause of action. Pennsylvania R. Co. v. Miller, 124 F.2d 160, 162 (5th Cir.), cert. denied 316 U.S. 676 (1942). Federal common law has long acknowledged that a defense which is termed a recoupment is never barred by a statute of limitations so long as the main action itself is timely. Bull v. United States, 295 U.S. 247, 79 L.Ed. 1421, 55 S.Ct. 695 (1935).
The decisions of the Supreme Court discussing the doctrine of recoupment have been confined to the area of tax liability. See e.g., Rothensies v. Electric Battery Co., 329 U.S. 296, 299, 91 L.Ed. 296, 67 S.Ct. 271 (1946). However, the courts which have considered whether a truth in lending claim is in the natürfe bf a recoupment are split on the question. See generally; Arinot., 36 A.L.R. Fed. 657 (1978). Many of the State court opinions have relied on local law regarding the doctrine of recoupment and are not authority for interpreting the federal statute. See cases cited in Nat’l Blvd. Bk. of Chicago v. Thompson, 85 Ill. App. 3d 1145, 407 N.E.2d 739 (1980).
There are few federal decisions on point. In Ballew v. Associates Financial Services Company of Nebraska, Inc., [1974-1980 Transfer Binder] Cons. Cred. Guide (CCH) ¶ 98, 327 (D.C. Neb. Aug. 18, 1976), the Nebraska district court reached the fóílbwiñg conclusion:
. A Truth in Lending Act úlaim, although it fridy involve certain additional facts or a different perception thereof, nevertheless involves the same transaction; that transaction resulted in the note upon which the defendant now seeks recovery. It is from that same document that the plaintiff’s counterclaim for the Truth in Lending Act violation emerges.”
Plant v. Blazer Financial Services, Inc. of Ga., 598 F.2d 1357 (5th Cir. 1979), considered the reverse side of the issue raised here when it determined that a creditor’s counterclaim of default in a truth in lending action was of the same transaction so as to be compulsory rather than permissive. Thfe cbúrt concluded that the plaintiff’s and defendant’s claims arose from “a single aggregate of operative facts, the loan transaction . . . .” Plant, 598 F.2d at 1361. The only contrary federal authority, Basham v. Finance America Corp., 583 F.2d 918, 927-28 (7th Cir. 1978), cert. denied, sub nom. First National Bank of Peoria v, Childs, 444 U.S. 825 (1979), focused on the type of relief Sought by the defendant rather than the identity of the parties5 claims in the same transaction.
Turning to the case before us, the district court held that the debt owed the lender was unaffected by the claimed violations of the Truth in Lending Act and that therefore the two actions were not of the same transaction. However, both the obligation of the debt and the alleged violations of federal law arose out of the same loan transaction. The note and security agreement not only represented the defendant’s indebtedness, they also evidenced plaintiff’s compliance with the requirements of federal law. A defense need not be of the same form or controlled by the same body of law as the plaintiff’s claim to be a recoupment. Comment, Truth in Lending and the Statute of Limitations, 21 Vill. L. Rev. 904, 916 (1975-76).
The broad remedial purpose of the Act additionally persuades us that defendant’s counterclaim should not be barred by § 1640(e). It is the goal of the Act to facilitate responsible and intelligent indebtedness through the disclosure of credit terms. Without knowledge of the costs of credit, a debtor may be unaware of the actual debt he is incurring. Moreover, it is unlikely a debtor will discover the improper disclosure until some action by the creditor compels him to seek legal assistance. Finally, it would certainly circumvent the Act and the policy of prompt vindication of contractual rights if a creditor could simply sit on his claim for a year until the truth in lending statute of limitations runs to avoid compliance with the Act.
We conclude that the truth in lending counterclaim is in the nature of a recoupment and should not be barred by the statute of limitations. Accord, Household Consumer Disc., 490 Pa. at 215-16; Nat’l Blvd. Bk., 85 Ill. App. 3d at 1149; Easy Living v. Whitehead, 65 Ohio App. 2d 206, 417 N.E.2d 591, 596 (1979); Pacific Concrete Federal Credit U. v. Kauanoe, 62 Hawaii 334, 614 P.2d 936, 940 (1980); Tuloka Affiliates, Inc. v. Moore, 275 S.C. 199, 203, 268 S.E.2d 293 (1980); Brown v. U.S. Life Credit Corp., 602 S.W.2d 94, 96 (Tex. Civ. App. 1980); Household Finance Corp. v. Hobbs, 387 A.2d 198, 200 (Del. Super. Ct. 1978).
III. Section 1640(h)
The district court also concluded that § 1640(h) operated as an independent bar to defendant’s claim. Relying on Enterprises, Inc. v. Neal, 29 N.C. App. 78, 223 S.E.2d 831 (1976), the district court interpreted this section as precluding a truth in lending counterclaim since the creditor’s liability had not been judicially determined in an earlier proceeding. Defendant contends that this holding is erroneous and that the purpose of § 1640(h) is to prevent the borrower from simply deducting the statutory penalty from his monthly payments without a judicial determination of liability because he believes the lender violated the Act.
The language of the provision is by no means clear; however, the Act must be liberally construed to effectuate its remedial purpose. Ed Marling Stores, Inc., 6 Kan. App. 2d at 181. The holding of the district court would effectively bar any defensive use of the Act and would, thus, severely curtail the ability of consumers to enforce its provisions. Additionally, the trial court’s interpretation would require multiple adjudications for claims arising out of the same loan transaction between the same parties contrary to the liberal joinder policy reflected in modern rules of civil procedure. See Fed. R. Civ. P. 13. The interpretation urged by defendant has been adopted by the majority of courts construing the section (see, e.g., Nat’l Blvd. Bk., 85 Ill. App. 3d at 1147; Akron National Bank & Trust Co. v. Roundtree, 60 Ohio App. 2d 13, 395 N.E.2d 525 [1978]; Stephens v. Household Finance Corp., 566 P.2d 1163 [Okla. 1977]) and is also supported in its legislative history. Senate Comm, on Banking, Housing and Urban Affairs, Truth in Lending Act Amendments, S. Rep. No. 278, 93rd Cong., 1st Sess. 16 (1973). See also, Comment, Truth in Lending and the Statute of Limitations, 21 Vill. L. Rev. 904, 925 (1975-76). We concur with the holding of these courts and conclude that § 1640(h) requires a consumer to litigate an alleged truth in lending violation but that it does not bar assertion of the claim as a defense or counterclaim in an action on the debt.
Finally, while it can have no bearing on this case, we note that effective April 1, 1982, both section 1640(e) and section 1640(h) will be amended to avoid the questions raised in this appeal. The new provisions shall include the following language:
§ 1640(e)
“This subsection does not bar a person from asserting a violation of this title in an action to collect the debt which was brought more than one year from the date of the occurrence of the violation as a matter of defense by recoupment or set-off in such action, except as otherwise provided by State law.”
§ 1640(h) shall read:
“A person may not take any action to offset any amount for which a creditor or assignee is potentially liable to such person under subsection (a)(2) against any amount owed by such person, unless the amount of the creditor’s or assignee’s liability under this title has been determined by judgment of a court of competent jurisdiction in an action to which such person was a party. This subsection does not bar a consumer then in default on the obligation from asserting a violation of this title as an original action, or as a defense or counterclaim to an action to collect amounts owed by the consumer brought by a person liable under this title.” Truth in Lending Simplification and Reform Act of 1980, Pub. L. No. 96-221, Title VI § 615, 94 Stat. 180.
As a final note, we consider defendant’s motion for attorney fees generated by this appeal. This motion is granted and plaintiff is hereby ordered to pay $750 in attorney fees.
Judgment is reversed and the case is remanded for the purpose of deciding the issues raised by the counterclaim. | [
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Miller, J:
This case began as a lawsuit filed by the plaintiff, Forbes Credit Union, against the defendant, Ronnie C. Mewhinney, to recover on a promissory note for money loaned to defendant under plaintiff’s open-end credit plan. Defendant filed a counterclaim alleging violations of the Federal Truth in Lending Act. Both parties moved for summary judgment on the counterclaim, and this appeal arises from the decision of the trial court in granting summary judgment in favor of defendant on the counterclaim.
The trial court found that plaintiff had violated the disclosure requirements of the Truth in Lending Act in two separate respects, and entered judgment in favor of defendant on the counterclaim, by way of set-off against plaintiff’s claim, for twice the amount of the finance charges, including insurance charges, and for costs and attorney fees.
The Truth in Lending Act (15 U.S.C. § 1601 et seq.) was passed by Congress in 1968 and became effective on May 29, 1968. The requirements of the act are implemented by the provisions of 12 C.F.R. § 226, commonly known as Regulation Z. On January 1, 1974, the disclosure requirements of the Truth in Lending Act and Regulation Z were incorporated into Kansas law by the adoption of the Uniform Consumer Credit Code (K.S.A. 16a-l-302, 16a-3-206).
The Truth in Lending Act was enacted by Congress in response to the divergent, and sometimes fraudulent, practices by which credit customers were apprised of the terms of the credit extended to them. These practices often prevented consumers from shopping for the best credit terms available, and sometimes led to them assuming liabilities they could not meet. Mourning v. Family Publications Service, Inc., 411 U.S. 356, 363, 36 L.Ed.2d 318, 93 S.Ct. 1652 (1973). The congressional intent underlying this legislation was not only to protect consumers from inaccurate and unfair credit billing and credit card practices but to avoid the uninformed use of credit by compelling a meaningful disclosure of credit terms so that the consumer would be able to compare more readily the various credit terms available to him. (15 U.S.C. § 1601.) This was sought to be done by requiring all creditors to disclose credit information in a uniform manner, and by requir ing all additional mandatory charges imposed by the creditor as an incident to extending credit to be included in the computation of the .applicable percentage rate.
The Act and Regulation Z set out in precise form and content the credit information required to be given by a creditor to a consumer in conjunction with all credit transactions within the purview of the act. The courts have recognized that strict enforcement of these requirements is mandatory if the purpose of the Act is to be achieved. There is no requirement that a consumer must have been misled or deceived or otherwise injured in order to be entitled to the penalties, fees and costs provided for in the Act. Smith v. Chapman, 614 F.2d 968 (5th Cir. 1980), Ed Marling Stores, Inc. v. Miracle, 6 Kan. App. 2d 175, 627 P.2d 352 (1981).
It is in this context that we must examine the contentions of the parties here.
The facts pertinent to this appeal are not disputed. On November 8, 1976, plaintiff and defendant entered into an agreement denominated “Open End Promise to Pay to the Forbes Credit Union” whereby the defendant agreed to repay to plaintiff all sums loaned to defendant from time to time by the plaintiff.
On November 15, 1976, plaintiff made the first advance to defendant, pursuant to the open-end credit agreement, in the sum of $1,955.21, and obtained from defendant a security agreement on defendant’s car to secure repayment. Contemporaneously therewith, and in order to comply with the requirements of 12 C.F.R. § 226.7(a), plaintiff gave defendant a disclosure statement entitled “Credit Union Application — Notice of Terms — Disclosure Statement.”
Of the amount first advanced by plaintiff, $55.21 was for group creditors’ disability insurance which defendant purchased from plaintiff, although he was advised that such insurance was not required as a condition of the loan.
On March 25, 1977, plaintiff and defendant entered into another open-end agreement identical in terms to the agreement of November 8, 1976.
On March 28, 1977, plaintiff advanced to defendant an additional sum of $200.76. This sum was added to the outstanding balance of the original loan, creating a total balance of $1,857.90. Contemporaneously therewith, and in order to comply with 12 C.F.R. § 226.7(a), plaintiff gave defendant another disclosure statement on a form identical to the one used on November 15, 1976.
At the same time the insurance coverage previously purchased by defendant was cancelled and defendant was refunded the unearned premium in the amount of $34.97. Defendant then purchased new insurance coverage sufficient to cover the new outstanding balance of his loan. Defendant was again advised that such insurance was not required by plaintiff.
The trial court found, first, that plaintiff had violated the disclosure requirement of 12 C.F.R. § 226.7(a)(7) which provides:
“§ 226.7 Open end credit accounts — specific disclosures.
(a) Opening new account. Before the first transaction is made on any open end credit account, the creditor shall disclose to the customer in a single written statement, which the customer may retain, in terminology consistent with the requirements of paragraph (b) of this section, each of the following items, to the extent applicable:
(7) The conditions under which the creditor may retain or acquire any security interest in any property to secure the payment of any credit extended on the account, and a description or identification of the type of the interest or interests which may be so retained or acquired.”
We agree. The disclosure statement given to defendant on November 15, 1976, at the time of the first advance on the loan, and again on March 28, 1977, at the time of the second advance, relating to the above regulation, reads in part as follows:
“Where a security agreement in the nature of a chattel mortgage has previously been given to the above named credit union and said Security Agreement has not been released or terminated, the credit union shall retain such security interest in the property therein described to secure payment of any credit extended on this open end plan until all liabilities to the credit union have been paid in full and then only upon a request for termination of the Security Agreement. A true copy of the Security Agreement was heretofore furnished to the borrowing member at the time of the signing of the Security Agreement in accordance with the requirements of the Uniform Commercial Code. Any balance in the member’s share account shall also be security. Where a payroll deduction authorization has previously been given to the member’s employer authorizing him to deduct money from the member’s pay each payroll period to be transmitted currently to the above named credit union, such authorization shall remain in effect until cancelled or altered by the undersigned in a written notice. This disclosure in no way alters the terms of said authorization.” (Emphasis supplied.)
The act mandates that the required disclosures be given before such an account is opened. 15 U.S.C. § 1637(a) and 12 C.F.R. § 226.7(a) require that the disclosure be given before the first transaction is made on the account. Under either requirement, the required disclosure in this case was not timely made. The account was opened by the agreement entered into on November 8, 1976. The first transaction under the account took place on November 15, 1976, at which time the security agreement was executed and the loan proceeds disbursed.
Disclosure is required prior to the time a customer contractually binds himself to accept particular credit terms. Copley v. Rona Enterprises, Inc., 423 F.Supp. 979 (S.D. Ohio 1976). A disclosure made contemporaneously with the execution of the security agreement and disbursement of the loan does not meet the dictates of the Act or Regulation Z. Goldman v. First Nat. Bank of Chicago, 532 F.2d 10 (7th Cir.), cert, denied 429 U.S. 870 (1976).
Moreover, the above disclosure statement discloses only the conditions under which a security interest previously given may be retained by the lender. It does not disclose any conditions under which the lender may acquire a security interest or a description of the interest to be taken, such as for example, that under Kansas law, any loan made by a credit union in excess of $1,000.00 requires a security interest to secure repayment of the loan. K.S.A. 17-2201 et seq.
While there appear to be no cases concerning the exact language used in plaintiff’s disclosure statement, several cases involving open end credit sales interpreting disclosure requirements under the Act are helpful. In Willis v. American National Stores, 350 F.Supp. 173, 175-76 (N.D. Ga. 1972), the court held that a disclosure statement that merely stated that “the seller may, at his option, retain a security interest in the merchandise at the time of purchase” was not specific enough because it did not sufficiently inform the consumer so that he may “compare . . . various credit terms available to him.”
In Pennino v. Morris Kirschman & Co., Inc., 526 F.2d 367, 371 (5th Cir. 1976), the court ruled that the disclosure stating that the creditor was “hereby granted a security interest in the merchandise purchased ... in accordance with existing state laws” was inadequate in that it failed to specifically disclose a “vendor’s privilege”, a lien granted to the creditor by Louisiana law.
In Jacklitch v. Redstone Federal Credit Union, 615 F.2d 679 (5th Cir. 1980), the court ruled that a disclosure was inadequate that did not disclose an after-acquired property clause in the security agreement that could be construed to include replacements and additions to the property itself.
These cases all recognize that the disclosures required by the Act and 12 C.F.R. § 226.7(a) must be sufficiently specific to apprise the consumer of the precise circumstances under which a security interest may be acquired as well as retained by the creditor so that the consumer may explore other credit alternatives.
The trial court found also that plaintiff had violated 12 C.F.R. § 226.4(a)(5) concerning charges for credit disability insurance. This regulation, implementing 15 U.S.C. § 1605 of the Act, reads:
Ҥ 226.4 Determination of finance charge.
(a) General rule. Except as otherwise provided in this section, the amount of the finance charge in connection with any transaction shall be determined as the sum of all charges, payable directly or indirectly by the customer, and imposed directly or indirectly by the creditor as an incident to or as a condition of the extension of credit, whether paid or payable by the customer, the seller, or any other person on behalf of the customer to the creditor or to a third party, including any of the following types of charges:
(5) Charges or premiums for credit life, accident, health, or loss of income insurance, written in connection with any credit transaction unless
(i) The insurance coverage is not required by the creditor and this fact is clearly and conspicuously disclosed in writing to the customer; and
(ii) Any customer desiring such insurance coverage gives specific dated and separately signed affirmative written indication of such desire after receiving written disclosure to him of the cost of such insurance.”
Both disclosure statements given to defendant at the time of extending credit on November 15, 1976, and on March 28, 1977, contained an appropriate paragraph informing defendant that group credit disability insurance was not required to obtain the loan, with appropriate spaces to disclose the cost of such insurance and for defendant to give his separately signed affirmative indication for such insurance if desired. In both disclosure statements, these spaces were left blank. The defendant did, however, purchase such insurance from the plaintiff in connection with both advances and the premiums were included in the amount advanced, upon which the finance charge was calculated and not as a part of the finance charge.
The plaintiff argues that the amount of the insurance premium was inserted on the insurance form, that defendant knew exactly how much it cost and what he was receiving, and that the failure to fill in the blanks in the disclosure statement was, at most, an unintentional and bona fide error for which it should not be held liable.
The regulations are very specific in requiring (1) the disclosure of the optional nature of the insurance and (2) a “specific dated and separately signed affirmative indication” for such insurance. Otherwise, the cost of such insurance must be included as part of the finance charges imposed by the creditor. Copley v. Rona Enterprises, Inc., 423 F.Supp. at 983. Requiring anything less is to ignore the clear language of the regulation. The court correctly concluded that plaintiff had violated this regulation.
15 U.S.C. § 1640(c), to which K.S.A. 16a-5-203(3) is substantially identical, provides:
“A creditor may not be held liable in any action brought under this section for a violation of this subchapter if the creditor shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.”
The leading case construing this provision is Ratner v. Chemical Bank New York Trust Company, 329 F.Supp. 270 (S.D. N.Y. 1971), where the court found that the “good faith” defense was specifically intended to apply to clerical errors of all sorts, although this case has been criticized. See Welmaker v. W.T. Grant Company, 365 F.Supp. 531 (N.D. Ga. 1972). Regardless, plaintiff has made no showing that it maintained any procedures reasonably adapted to avoid any such error. It concedes, in fact, that it was the customary practice in such case to insert the amount of the premium on an insurance form. Clearly plaintiff has not sustained the burden of proof imposed upon it in this respect. Ed Marling Stores, Inc. v. Miracle, 6 Kan. App. 2d 175.
Plaintiff next challenges the propriety and amount of attorney fees granted counsel for defendant for the reason that defendant was represented by a Legal Aid Society. K.S.A. 16a-5-203(l) and 16a-5-201(8) vest authority in the court to award reasonable attorney fees. Ed Marling Stores, Inc. v. Miracle, 6 Kan. App. 2d 175. We find no abuse of discretion in the amount of fees awarded by the court. An additional $750.00 is awarded to counsel for defendant as attorney fees for services in connection with this appeal.
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Bullock, J.:
Prior to the dates material in this controversy, the life of Michael G. Bennett was insured by Colonial Life and Accident Insurance Company under a policy of insurance Michael obtained through his employer. Peggy Bennett, plaintiff below, was designated beneficiary of Michael’s insurance policy. The premiums for this insurance were paid by Michael’s employer under a payroll deduction plan. The entire premium was deducted from Michael’s wages, the employer contributing nothing.
On or about August 24, 1977, Michael communicated to his employer his desire to cancel his insurance coverage. Pursuant to these instructions, the employer struck Michael’s name from Colonial’s August 24, 1977, invoice and returned the invoice to Colonial with no payment for Michael. No further withholdings were made from Michael’s pay for insurance premiums.
Upon receipt of the August invoice, Colonial canceled Michael’s policy on September 13, 1977 (premiums having been previously paid through September 4, 1977). On September 15, 1977, Michael died.
After stipulating to the foregoing facts, both parties below filed motions for summary judgment. The trial court sustained plaintiff’s motion, holding the 31-day grace period for the payment of premiums contained in the policy operated to extend coverage beyond Michael’s death. This appeal followed.
1. Colonial’s first issue turns on the construction and interpretation of the following clause in the contract:
“Grace Period — Any premium not paid on or before its due date is in default but a grace period of thirty-one days, without interest, will be allowed for the payment of every premium after the first, during which period this policy will continue in force. If death occurs within the grace period, any premium then due and unpaid will be deducted from the amount otherwise payable.”
Colonial argues that this clause provides a 31-day grace period before the policy can be canceled by the insurer for nonpayment of premiums, and that the clause does not apply where the policy is canceled at the request of the insured. Colonial further argues that the insured here expressly requested cancellation of the policy and that pursuant to that request the policy was canceled prior to the death of the insured.
Plaintiff, on the other hand, argues that the clause applies to any nonpayment of premium, regardless of the reason therefor, and that in any event the insured here did not cancel the policy. In essence plaintiff’s position is that this clause in the policy operates to extend coverage for 31 days in all cases.
The question of whether the policy was canceled by the insured will be addressed first.
The policy here contains no provisions regarding cancellation by the insured, nor would such provisions be exclusive if provided in the policy.
“A method of cancellation provided for in an insurance policy is not necessarily exclusive so as to preclude an effective cancellation by mutual agreement without compliance with the method so provided.” Shunga Plaza, Inc. v. American Employers’ Ins. Co., 204 Kan. 790, Syl. ¶ 1, 465 P.2d 987 (1970).
The rules governing the cancellation of an insurance contract by mutual consent are the same as those governing the cancellation of any contract by mutual consent, and are similar to those for making a contract. There must be a meeting of the minds of the parties. Riddle v. Rankin, 146 Kan. 316, 323, 69 P.2d 722 (1937). In the case at issue, the insured told his employer to cancel the policy and to stop withholding the premium from his salary. The employer communicated this to the insurer by not withholding and forwarding the premium and by removing the name of the insured from the list of covered employees. The insurer acted on this information by cancelling the policy prior to the death of the insured. On these facts we conclude that there was a meeting of the minds of the parties regarding cancellation of the policy, prior to the death of the insured.
The remaining question is whether the grace period in the policy applies to extend coverage where the policy is canceled by the mutual consent of the parties. Our examination of the authorities reveals that the sole purpose of a grace period is to prevent immediate lapse upon failure to pay a premium. Although the effect is to continue the policy in full force during the grace period, the clause does not change the due date of the premium, it merely provides a period within which the default may be cured without lapse of the policy. It is in essence a waiver of default provision. 6 Couch on Insurance 2d § 32:132.
As observed in Davis v. Met. Ins. Co., 161 Tenn. 655, 659, 32 S.W.2d 1034 (1930):
“It must be borne in mind that this grace provision does not contemplate free [emphasis in original] insurance. The grace is allowed in order that the insured may have this extension of opportunity within which to pay another premium and thus avoid forfeiture for non-payment on the date fixed for payment. But the contemplation is that the charge accruing as compensation for a continuance of the liability obligation will ultimately be paid. This, of course, involves a mutual expectation that the policy contract is to be continued in force as between the parties, at least throughout the period of grace. For example, in this case the premiums were payable monthly in advance and the monthly premium charge is for that service, that is, the carrying of the risk for that month. If by a mutual agreement, or upon notice duly given by the insured, the contract of insurance between the parties is cancelled as of an approaching date, to which date the premium has been theretofore paid, the contract terminates as of that date, and all obligations as between the parties, on the one hand to pay further premiums, and on the other to incur extension of liability, are at an end. ” Emphasis added.
Likewise, a grace period applies only to the date when a premium is due and by definition has no application to the terminal date on which an insurance policy expires by its terms or by mutual agreement of the parties. 6 Couch on Insurance 2d § 32:121. See also Miller, Ap., v. The Travelers Ins. Co., 143 Pa. Super. Ct. 270, 17 A. 2d 907 (1941), and Johnson v. Metropolitan Life Ins. Co., 52 Ga. App. 759, 184 S.E. 392 (1936).
Thus, we conclude the policy was canceled by the mutual consent of the parties prior to the time this claim arose and the grace period of the policy does not apply.
2. The second issue pertains to the applicability of K.S.A. 40-434 to the policy in question. K.S.A. 40-433 provides: “No policy of group life insurance shall be delivered in this state unless it conforms to one of the following descriptions: (1) ... (b) .. . No policy may be issued on which the entire premium is to be derived from funds contributed by the insured employees.” This language appears in the statute in effect at the time the policy here was issued, and was not altered by the 1980 amendment of 40-433. Since the entire premium here was deducted from the employee’s salary, this policy does not qualify as a policy of group life insurance. K.S.A. 40-434 sets forth required provisions for group life insurance policies. Since the policy here is not a group policy, 40-434 does not apply.
3. The third issue concerns the cancellation notice requirements of K.S.A. 40-434(1). Having previously determined that the provisions of K.S.A. 40-434 are not applicable to the policy which is the subject of this action, this issue is moot.
From the foregoing, we conclude that the trial court erred in sustaining plaintiff’s motion for summary judgment and in denying Colonial’s motion. Accordingly the judgment is reversed and judgment is herewith entered for Colonial and against plaintiff for costs. | [
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Flood, J.:
This is a case of first impression for the State of Kansas. It concerns the due process standards to be applied to prerelease rescission of a parole grant. It does not concern due process standards for parole revocation. See K.A.R. 1981 Supp. 45-9-1.
On April 24, 1978, Albert F. Uphoff, appellee, was convicted of aggravated incest and sentenced to serve not less than three nor more than ten years in the custody of the Secretary of Corrections. On January 10, 1980, the appellee was certified as parole eligible by the Secretary of Corrections and recommended for a hearing before the Kansas Adult Authority (the Authority). Following a hearing on February 18, 1980, the appellee was informed in writing that the Authority had decided to “parole to placement on or after March 3, 1980, when arrangements completed.” On March 10, 1980, the Authority received a letter from the appellee’s ex-wife, enclosing a letter the appellee had allegedly written to the victim of the crime for which he was incarcerated. The appellee’s letter was apparently written before the February 18 hearing but its existence was unknown to the Authority at that time. As a result of the receipt of the letters, the Authority scheduled the appellee for a special hearing before Dr. Alfredo R. Calvillo, a member of the Authority, on March 18, 1980. On March 12 or 13, 1980, the appellee was shown the following written notice:
“Memorandum Kansas Adult Authority
Date March 11, 1980
TO: Wichita Work Release Center
FROM: Kansas Adult Authority
SUBJECT: UPHOFF, Albert WWRC 31715
Please schedule the above named inmate for a special hearing on the March 17, 1980 docket.
/s/ Keith E. Magers
Keith E. Magers
Assistant Director”
He was not advised of the subject matter of the hearing nor was he given other explanation or information. He was not represented by counsel at the hearing. He did have the opportunity at the hearing to discuss the letters. On March 25, 1980, after a further review by the Authority members Calvillo, Mills and Walker, the Authority rescinded its earlier decision and recommended the appellee be passed to December, 1980, for further parole consideration.
The appellee, who was in custody at the Wichita Work Release Center, then filed an application for habeas corpus in the Sedgwick County District Court challenging the legality of his confinement. Upon hearing on the appellee’s application, the trial court found the appellee had in fact been granted a parole subject only to mechanical issuance of a parole certificate. In such instance, the trial court held, the appellee was entitled to the full due process procedures mandated by Morrissey v. Brewer, 408 U.S. 471, 33 L.Ed.2d 484, 92 S.Ct. 2593 (1972), before the parole grant could be rescinded. Further, the trial court found the letter written by the appellee did not constitute “substantial information that was not available at the hearing which would indicate that the inmate cannot reasonably lead a law abiding life” (see K.A.R. 1981 Supp. 45-7-3 [e]), and the action of the Authority in rescinding the parole grant as a result of that letter was arbitrary, capricious and an abuse of discretion. The trial court ordered the appellee released on parole. The Secretary of Corrections appealed. The trial court subsequently ordered the appellee released on bond pending resolution of this appeal.
In Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 60 L.Ed.2d 668, 99 S.Ct. 2100 (1979), the Supreme Court held the Fourteenth Amendment due process clause does not apply to discretionary parole release determinations unless state law makes parole release more than a possibility. 442 U.S. at 7-8. Similarly, the Supreme Court has recently held that prerelease rescission of a state parole grant requires no due process hearing where state law creates no protected “liberty interest.” Jago v. Van Curen, 454 U.S. 14, 70 L.Ed.2d 13, 19, 102 S. Ct. 31 (1981).
In contrast, Morrissey v. Brewer, 408 U.S. 471, dealt with the revocation of a state parole after the parolee had been conditionally released in society. Morrissey held termination of the parolee’s “indeterminate liberty” inflicts a “grievous loss” and this liberty interest is within the protection of the Fourteenth Amendment. 408 U.S. at 482. Therefore, according to Morrissey, revocation of a released parolee’s parole requires two hearings, one preliminary and the other final. The preliminary hearing (a) must be before an independent officer to determine whether there is probable cause or reasonable ground to believe a parole violation has been committed; (b) the parolee must have written notice of the hearing and its purpose; (c) the notice must state what parole violations have been alleged; (d) the parolee must have the opportunity at the hearing to present evidence or documents; and (e) the hearing officer should make a determination of probable cause with the reasons therefor and the evidence relied upon summarized. Within a reasonable time after the parolee is taken into custody, the parole authority, prior to its decision, must afford the parolee a hearing, the final hearing, to determine the relevant facts regarding a basis for revocation and whether revocation is warranted. 408 U.S. at 488. Due process at such latter hearing includes a minimum:
“(a) [W]ritten notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a ‘neutral and detached’ hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.” 408 U.S. at 489.
Jago v. Van Curen, 454 U.S. 14, 70 L.Ed.2d 13, recently decided, concerned an Ohio prisoner. It holds parole rescission requires no due process hearing where state law creates no protected “liberty interest.” In State, ex rel., v. Auth., 45 Ohio St. 2d 298, 299, 345 N.E.2d 75 (1976), the Ohio Supreme Court found “[t]he Adult Parole Authority has no regulation requiring a hearing prior to rescinding the grant of a parole before release.”
When the Authority decided to rescind the appellee’s parole grant on March 25, 1980, its adopted regulations included the following;
“(e) Deferred release. Any inmate who has been granted parole and who commits an institutional infraction shall not be released as scheduled but shall remain in the institution until the authority has acted upon a report to be submitted promptly by the institution concerning the violation and results of the disciplinary proceedings. The report from the institution may include a recommendation to the authority. If the authority is considering rescission of parole or further deferment of the established release date, it shall promptly hold a special hearing with the inmate to allow the inmate an opportunity to comment on the status of the case or incident of the misconduct and make statements in mitigation of such proposed rescission or deferment.
“Inmates who have been granted parole may have their release deferred or have the parole rescinded on the basis of (1) institutional infractions in which the inmate was found guilty; (2) failure to comply with a specific condition of the parole contract; (3) an inadequate parole plan that does not provide for sufficient supervision; or (4) substantial information that was not available at the hearing which would indicate the inmate cannot reasonably lead a law abiding life.” (K.A.R. 1981 Supp. 45-7-3 [e].)
In Drayton v. McCall, 584 F.2d 1208 (2nd Cir. 1978), the Court of Appeals dealt with federal parole rescission. Because the United States Parole Commission’s regulations limited the Commission’s positive authority to rescind a parole grant to carefully defined situations, the Court felt there was an expectation of future liberty based upon a governmentally established entitlement which could not be withdrawn without due process of law. Due process, it was held, did not require the full protection provided by Morrissey. The federal regulations in question were not substantially different from K.A.R. 1981 Supp. 45-7-3 (e).
Drayton relied heavily on Wolff v. McDonnell, 418 U.S. 539, 41 L.Ed.2d 935, 94 S.Ct. 2963 (1974), where it was held that loss of good time credit in a prison disciplinary action did not require the Morrissey standards of due process protection, but did require written notice of the charges with at least twelve-hour notice, an impartial hearing, a written statement by the fact-finders of the reasons for their decision and the evidence relied on, and the opportunity to call witnesses and present documentary evidence. Wolff did not require the right to confront and cross-examine witnesses or the right to counsel in all cases. Drayton goes further than Wolff in requiring the right to counsel at a rescission hearing.
The 10th Circuit considered federal parole rescission in Robinson v. Benson, 570 F.2d 920 (10th Cir. 1978), and held the Wolff standards were sufficient and no right to cross-examination or counsel was constitutionally required.
We conclude that because Kansas parole grant rescission is limited to situations carefully defined in K.A.R. 1981 Supp. 45-7-3 (e), there exists a liberty interest requiring certain minimum due process safeguards. We should emphasize, however, as the United States Supreme Court did in Morrissey v. Brewer, 408 U.S. at 481:
“[T]hat due process is flexible and calls for such procedural protections as the particular situation demands. ... Its flexibility is in its scope once it has been determined that some process is due; it is a recognition that not all situations calling for procedural safeguards call for the same kind of procedure.”
We hold that where, after a future parole date has been fixed, and, prior to releasing the inmate, the Authority considers rescission of parole or deferment of the release date, the Authority should give to the inmate:
(1) Written notice, at least twenty-four hours before the hearing, of the purpose of the hearing and the nature of the charges to be heard;
(2) A special hearing before the Authority or one or more of its members;
(3) An opportunity to appear, to hear or read the evidence against him, to confront and cross-examine any witnesses against him (unless the hearing officer finds this should not be allowed because of threat to institutional safety or for other good cause), to testify, and to present witnesses or documentary evidence in his behalf; and
(4) A written statement of the board’s order, including the reasons therefor.
Counsel need not be furnished, but staff assistance should be provided if requested.
In this case, the action of the Authority met some, but not all, of these suggested standards. Uphoff was given notice of the hearing, but not of the purpose or the charges. In the special hearing before a board member, he was made aware of the purpose of the hearing and of the only evidence against him, a letter he admitted writing. Presumably, he was permitted to make a statement or give an explanation, and to testify in his own behalf. No witnesses testified against him, and he makes no suggestion, even at this late date, of evidence he might have had, or witnesses he might have called, in his behalf. The action of the board was based entirely upon the letter; its content and authorship is unchallenged. The Authority could not anticipate the standards which we now adopt. Its failure to give written notice of the purpose of the hearing and the nature of the charges, in order that Uphoff might have a reasonable opportunity to prepare for the hearing, is the principal error. However, since Uphoff now suggests no evidence in mitigation which might have been presented, we conclude that the Authority’s error was harmless. The trial court’s finding that appellant’s right to due process of law was violated is correct, although the trial court applied too stringent a standard.
In Kansas, the authority to release on parole is vested in the sound discretion of the Kansas Adult Authority. K.S.A. 1980 Supp. 22-3717(1). Its orders are not subject to review except for violation of law. K.S.A. 22-3710. The district court has no authority to substitute its discretion for that of the board in granting parole. If there is a serious due process violation, or if the board abuses its discretion, the district court can only remand the case to the Kansas Adult Authority with instructions to grant the proper hearing and make the proper findings. See Billiteri v. United States Bd. of Parole, 541 F.2d 938 (2nd Cir. 1976).
The judgment is reversed. | [
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|
Spencer, J.:
Topeka Halfway House, Inc., respondent in an employee discrimination suit filed with the Kansas Commission on Civil Rights (KCCR), appeals the district court’s dismissal of its appeal for lack of jurisdiction.
Complainant William Legg filed this complaint charging a violation of K.S.A. 44-1009(a)(l) in that he was terminated from employment with Topeka Halfway House, Inc., because of his race. The KCCR examiner found respondent had discriminated against complainant and awarded lost wages and damages for humiliation. Respondent’s application for review by the KCCR was denied. Respondent timely filed notice of appeal with the district court, but addressed the notice to the KCCR staff attorney rather than mailing it to complainant’s last known address as provided in K.S.A. 44-1011. After a pretrial conference at which this defect was not mentioned, complainant filed a motion to dismiss the appeal for failure to comply with 44-1011, which motion was granted.
The sole issue on appeal is whether respondent properly perfected its appeal to the district court. There is no question that respondent applied for and was denied rehearing as required by K.S.A. 44-1011. Further, there is no question concerning the timeliness of respondent’s filing of notice of appeal with the district court. The question is whether respondent’s serving no tice of appeal on the KCCR attorney who prosecuted the complaint before the Commission, rather than mailing a copy thereof to the complainant’s last known address as provided in K.S.A. 44-1011, deprived the district court of subject matter jurisdiction of the appeal. Because the issue of subject matter jurisdiction may be raised at any time (K.S.A. 60-212[/i][3]), the question was not foreclosed in this case by failure to raise it at the pretrial conference.
Kansas courts have only such appellate jurisdiction as is conferred by statute and, in the absence of compliance with the statutory rules, the appeal should generally be dismissed. See Brown v. Brown, 218 Kan. 34, 542 P.2d 332 (1975). For example, an untimely filing of notice of appeal is fatal (Brown, 218 Kan. at 37-38), and filing notice of appeal in the wrong forum is fatal (City of Bonner Springs v. Clark, 3 Kan. App. 2d 8, 588 P.2d 477 [1978]), but not all statutory requirements for an appeal are jurisdictional. Under Kansas practice, although timely filing of notice of appeal is jurisdictional (Everett v. Blue Cross-Blue Shield Ass’n, 225 Kan. 63, 587 P.2d 873 [1978]), failure to strictly comply with other prerequisites for appeal, such as timely payment of the docket fee (Avco Financial Services v. Caldwell, 219 Kan. 59, 547 P.2d 756 [1976]), timely designation of the record (Kleibrink v. Missouri-Kansas-Texas Railroad Co., 224 Kan. 437, 581 P.2d 372 [1978]), certification by a municipal court of the complaint, warrant and appearance bond to the district court on appeal (City of Garnett v. Zwiener, 229 Kan. 507, 625 P.2d 491 [1981]), and timely filing of an appeal bond (In re Estate of Duncan, 7 Kan. App. 2d 196, 638 P.2d 992, rev. denied March 3, 1982), are not jurisdictional where no prejudice results. See In re Lakeview Gardens, Inc., 227 Kan. 161, 605 P.2d 576 (1980).
The Supreme Court has distinguished KCCR appeals pursuant to K.S.A. 44-1011 from the more general administrative appeals allowed by K.S.A. 60-2103, and K.S.A. 44-1011 controls this case. See Everett v. Blue Cross-Blue Shield Ass’n, 225 Kan. 63. K.S.A. 44-1011 states in part:
“The attorney general, county attorney or any person aggrieved by an order made by the commission may obtain judicial review thereof in the said court by filing with the clerk of said court within thirty (30) days from the date of service of the order, a written appeal praying that such order be modified or set aside. The appeal shall certify that notice in writing of the appeal, with a copy of the appeal, has been given to all parties who appeared before the commission at their last known address, and to the commission by service at the office of the commission at Topeka. The evidence presented to the commission, together with its findings and the order issued thereon, shall be certified by the commission to said district court as its return. No order of the commission shall be superseded or stayed during the proceeding on the appeal unless the district court shall so direct.”
It is clear that, by mailing notice of appeal to the KCCR staff attorney and not to complainant’s last known address, respondent technically failed to comply with the statute. But this court recently ruled failure to strictly comply with 44-1011 does not always defeat appellate jurisdiction.
In U.S.D. No. 259 v. Kansas Comm’n on Civil Rights, 7 Kan. App. 2d 319, 320-21, 640 P.2d 1291, rev. denied April 14, 1982, this court stated:
“Palmer’s and the KCCR’s motion to the district court to dismiss because the school district did not comply with statutory procedural requirements in appealing the KCCR decision is without merit. The notice of appeal was timely filed by the school district, and there is no contention by appellants that they were misled by the format of the appeal. The trial court properly refused to dismiss the appeal.”
In this case, the district court did not have the benefit of our recent opinion in U.S.D. No. 259 when making the ruling on complainant’s motion to dismiss. Nevertheless, because the notice of appeal was timely filed and complainant has at no time shown prejudice by virtue of service on the KCCR staff attorney, we hold this technical noncompliance with K.S.A. 44-1011 did not defeat subject matter jurisdiction over the appeal.
The judgment of the district court is reversed and the cause is remanded for hearing pursuant to K.S.A. 44-1011. | [
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|
Meyer, J.:
This case involves the question of title to a stock trailer given to Daniels Trucking, Inc. (appellant) by one of the former partners of a dissolved partnership after the dissolution of the partnership.
Prior to June, 1975, appellee Jimmie Rogers (Rogers) and Roger Noble (Noble) were in partnership under the name of R & N Trucking Co. Title to the disputed trailer prior to the date of dissolution was in the name of “Jimmie Rogers & or Roger Noble dba R & N Trucking Co.” The trailer was leased to appellant who, having advanced some of the purchase price to the partnership, retained a lien on the trailer. When the partners dissolved their partnership in June of 1975, the property of the partnership was divided between the partners. The trailer in question was one of the items of what was formerly partnership property which was allocated to Rogers, and he obtained possession of the trailer at that time.
Some 3V2 years after dissolution of the partnership, Noble (by then an employee of appellant) undertook to transfer title to appellant. Prior to such date, however, Rogers had obtained title to the trailer; hence at the time of the institution of the instant case, appellant had an Oklahoma certificate of title in the name of Daniels Trucking, Inc., and Rogers had a Kansas title bearing an earlier date than that of Daniels Trucking, Inc.
It is important to note that there is sufficient evidence to substantiate the conclusion of the trial court that the partnership was formally dissolved in June of 1975, and that appellant herein knew of said dissolution at or about that same date, and knew that possession of the trailer in question at that time passed to Rogers and that Rogers retained possession thereof at all times after such dissolution.
It seems apparent that Noble promised appellant on one or more occasions after June of 1975 that the indebtedness due appellant would be paid. There is no evidence to suggest that Rogers made any promise to appellant after the dissolution of the partnership. Also, Rogers specifically denies having made any such promise; and it is clear that Rogers did not in any way participate in the transfer of the title to the trailer to appellant.
Appellant argues that the dissolution of the partnership did not discharge the liability of either partner, and that either partner could convey partnership property in satisfaction of partnership debts. Clearly, upon dissolution of a partnership, the partners remain jointly and severally liable for partnership debts.
K.S.A. 56-315 states in part: “All partners are liable jointly and severally for everything chargeable to the partnership . . . .” K.S.A. 56-336(a) states: “The dissolution of the partnership does not of itself discharge the existing liability of any partner.” Hence, both partners remained jointly and severally liable to appellant. See also Mildfelt v. Lair, 221 Kan. 557, 561 P.2d 805 (1977).
The trial court, while noting that the action of appellant was for possession of the trailer, nevertheless concluded that the real issue in the case was the indebtedness of the partnership to appellant. There is some evidence to support this conclusion. Accordingly, the trial court held that such indebtedness was barred by the applicable statute of limitations, K.S.A. 60-512.
Considering the trial court’s conclusion to the effect that the real issue was the indebtedness of the partnership, and considering also that the petition was one seeking possession based on transfer of title, we will address the issues under both theories. Therefore, the questions we consider are (1) whether Noble had authority to convey the trailer, (2) whether he had an interest to convey, and (3) whether he could, as to Rogers, renew a debt on which the statute of limitations had run by his promise to pay. We will consider these questions in that order.
A comparison of appellant’s choses in action before and after dissolution reveals that appellant was not prejudiced by the dissolution agreement. Both before and after the dissolution, appellant had a cause of action on partnership debts and a lien on the trailer. The dissolution agreement did not affect either of these rights, and both partners remained personally jointly and severally liable. K.S.A. 56-315, 56-336(o). Hence, the dissolution agreement did not prejudice appellant, and was therefore valid, and Noble had no interest in the trailer to convey to appellant. Because, strictly construing the petition, this is not a suit on the partnership debt or a foreclosure on the lien on the trailer (i.e., appellant’s only claim to the trailer is through the assignment of the original Oklahoma title by Noble), and because Noble had no interest in the trailer to convey, the court properly found for Rogers. Also, although Noble might have been able to defeat Rogers’ interest in the trailer by assigning the original Oklahoma title to an innocent third party, appellant does not appear justified in relying on the certificate because it knew the partnership had been dissolved and that its assignor of the title had not had possession of the trailer since 1975. See Farm Bureau Mutual Ins. Co. v. Carr, 215 Kan. 591, 528 P.2d 134 (1974).
From the foregoing, it is clear that Noble had no authority to convey the trailer, nor did he have an interest to convey. Appellant had no justifiable reason to assume that Noble could do so and therefore appellant cannot prevail under the foregoing theories (1) or (2).
We will now address the question whether the trial court was correct in concluding that the statute of limitations precluded appellant’s recovery herein, and as a corollary thereto will decide whether laches would bar the appellant.
K.S.A. 56-337 states:
“Subject to the provisions of the acts contained in article 10 of chapter 59 of the Kansas Statutes Annotated, unless otherwise agreed, the partners who have not wrongfully dissolved the partnership or the legal representative of the last surviving partner, not bankrupt, has the right to wind up the partnership affairs: Provided, however, That any partner, his or her legal representative or his or her assignee, upon cause shown may obtain winding up by the court.”
K.S.A. 56-335 states in part:
“(d) After dissolution a partner can bind the partnership, except as provided in subsection (c).
(1) By any act appropriate for winding up partnership affairs or completing transactions unfinished at dissolution;
(2) by any transaction which would bind the partnership if dissolution had not taken place, provided the other party to the transaction (i) had extended credit to the partnership prior to dissolution and had no knowledge or notice of the dissolution; or (ii) though he or she had not so extended credit, had nevertheless known of the partnership prior to dissolution, and, having no knowledge or notice of dissolution, the fact of dissolution had not been advertised in a newspaper of general circulation in the place (or in each place if more than one) at which the partnership business was regularly carried on.
“(b) The liability of a partner under subsection (a)(2) shall be satisfied out of partnership assets alone when such partner had been prior to dissolution;
(1) Unknown as a partner to the person with whom the contract is made; and
(2) so far unknown and inactive in partnership affairs that the business reputation of the partnership could not be said to have been in any degree due to his or her connection with it.” (Emphasis added.)
We interpret K.S.A. 56-335(1) as contemplating that the “winding up” of partnership affairs be accomplished within a reasonable time, and that under the facts of the instant case such reasonable time had long since passed. In any event such time could not logically extend beyond the time limits of K.S.A. 60-512. K.S.A. 56-335(2) has specific reference to situations where the creditor had no knowledge or notice of the dissolution as indicated by the portions of that statute which we have emphasized as set out above. This subsection is also unavailing to appellant herein because of appellant’s long-time notice of such dissolution. Moreover, K.S.A. 56-335(fe)(l) is applicable when the partner who is sought to be held liable is unknown to the creditor.
While the above statutes give a former partner the right in some instances to bind the partnership (and therefore all partners) after dissolution, it does not appear applicable to the case at hand for the reasons stated above. But even if appellant were not excluded from the protective terms of. the above statutes for other reasons, we feel the statutes should be interpreted as requiring that, for one former partner to so bind another former partner, he must undertake to do so within a reasonable time. Additionally, the statute of limitations, K.S.A. 60-512, continues to run, and the creditor will be barred if he fails to bring his action within the time period prescribed by that statute. The real question then becomes whether one member of a dissolved partnership can revive a partnership debt barred by the statute of limitations and thereby bind another former partner by such revival.
Because partners remain jointly and severally liable for partnership debts under K.S.A. 56-315, even after dissolution of the partnership, K.S.A. 56-336(o), K.S.A. 60-520(¿) is in point:
“If there be two or more joint contractors, no one of whom is entitled to act as the agent of the others, no such joint contractor shall lose the benefit of the statute of limitations so as to be chargeable by reason of any acknowledgment, promise or payment made by any other or others of them, unless done with the knowledge and consent of, or satisfied [ratified] by the joint contractor sought to be charged.”
This statute was applied in Brandeberry v. Goodpaster, 302 F. Supp. 736 (W.D. Okla. 1969). The court noted that the burden of proof is on the party claiming revival of a barred debt, and ruled the debt was barred because there was no showing that defendants had consented to the partial payments which tolled the statute of limitations.
It appears to be a sound rule that absent agency or ratification, one codebtor is not bound by another’s acknowledgment of a barred debt. This rule has been adopted in other states. Lyons National Bank v. Moore, 14 App. Div. 2d 488, 217 N.Y.S.2d 279 (1961); Bender v. Vaughan, 106 Ohio App. 136, 153 N.E.2d 778 (1958). Applying that rule to the present case, it seems clear that after dissolution of the partnership, Noble was not entitled to act as Rogers’ agent in acknowledging or agreeing to pay the barred debt. It is also clear that the trailer was not conveyed with Rogers’ consent nor did he ratify that conveyance. Therefore, Rogers was not bound by Noble’s acknowledgment or attempted partial payment of the debt.
We further conclude that laches bars appellant from now asserting title to the trailer involved in this case, in view of the fact that appellant knew of the partnership dissolution, of Rogers’ possession of the trailer, and that appellant had known such facts since on or about June of 1975, or some 3 % years before bringing the current action.
Since appellant had knowledge of the dissolution of the partnership and of the location of the trailer for some 3Vz years, he could not take advantage of Noble’s abortive attempt to bind Rogers under K.S.A. 56-335. Further, appellant would be precluded under K.S.A. 60-520(b) from binding Rogers after the applicable statute of limitations (K.S.A. 60-512) had run its course.
Accordingly, we hold that the judgment of the trial court must be affirmed. This is because not only did Noble lack an interest in, or the authority to convey, the trailer; but also because appellant was barred by both the statute of limitations and by laches.
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Innes, J.:
Appellants Alice Walden and CACE Investment, Inc., appeal from the trial court’s decision denying them what they claim to be improperly garnished funds.
The facts which gave rise to this dispute are as follows: The plaintiffs, Robert V. Dailey and Amy K. Dailey, successfully sued the defendant, William H. Walden, Jr., on a promissory note. The judgment for plaintiffs was entered on September 3, 1980. Thereafter, the plaintiffs initiated several garnishments in an effort to satisfy the judgment.
Two of the garnishees were Melvin Herndon and Mary Herndon who were tenants at 6334 Millbrook, Shawnee, Kansas. The record owners of the property were the defendant, William H. Walden, Jr., and the appellant-intervenor Alice R. Walden, who had purchased the property on October 1, 1976, and held it as joint tenants with the right of survivorship.
The first order of garnishment initiated by the plaintiffs was served on the garnishees, the Herndons, on March 11, 1981. On March 17,1981, the garnishees filed their answer. As for money or indebtedness due the defendant they answered: “I owe a Lease payment on April 1, 1981.” They did not specify the amount of the payment.
A second order of garnishment was served on the Herndons on April 1, 1981. They answered on April 20, 1981. The answer stated that they were holding the April 1, 1981, lease payment in the amount of $525.00.
The first two garnishments apparently resulted in the plaintiffs collecting $525.00 toward their judgment since the second garnishment would have attached the same funds sought by the first. At any rate, an order of payment was entered on May 13, 1981, by the trial court directing that the garnishees, the Herndons, pay the $525.00 to the clerk of the court and then to the plaintiffs’ attorney. This order evidences that the source of the funds to be paid into court was evidenced by the first garnishment answer filed March 17, 1981, although apparently the funds were being held pursuant to the second answer of the garnishees filed April 20, 1981.
A third and final order of garnishment was served on the Herndons on April 30, 1981. By their answer to that garnishment they stated they owed a lease payment to the defendant on May 1, 1981, in the amount of $525.00.
Attached to the second answer of the garnishees was a letter from the Westgate State Bank, Kansas City, Kansas, which recited that the Waldens had assigned the lease payments to the bank. An assignment was included which was signed only by the defendant. This assignment was dated May 6, 1980.
On May 5, 1981, CACE Investment Company began doing business. On May 6, 1981, CACE purchased 6334 Millbrook from William Walden and Alice Walden. It is not disclosed who the stockholders of CACE might be.
The rent was due to Walden on May 1, 1981, for the month of May. On June 3,1981, Alice Walden, through her attorney, filed a motion in this case requesting return of one-half of all garnished funds from the plaintiffs. Alice Walden admits she was not a party to that action and there was no application for intervention pursuant to K.S.A. 60-224. It appears William Walden has never appeared in any garnishment proceeding.
On June 8, 1981, CACE moved for the return of $437.50 of the $525.00 May rental garnished pursuant to the journal entry in the captioned case. CACE was represented by the same attorney as Alice Walden. Again, no application for intervention was filed pursuant to K.S.A. 60-224.
On the 24th day of June, 1981, the court ordered the garnishee to pay the funds held by virtue of their May 1,1981, answer to the clerk of the court, who then was ordered to disburse them to plaintiffs’ attorney.
On the 26th day of June, 1981, the motions of the appellants were overruled. The basis for this decision was that appellant Alice Walden had failed to timely object pursuant to K.S.A. 60-718(c) and because CACE took the realty subject to the garnishment.
The appellants argue that the trial court erred in ruling that: (1) A person or entity not a party in the original suit or a garnishee was bound by the time provisions of K.S.A. 60-718(c); (2) the interests of Alice Walden were subject to garnishment in satisfaction of the judgment debt of her husband; and (3) a third-party purchaser for value, without notice of a garnishment, took subject to a garnishment on real property.
As a preliminary matter, it must be noted that neither appellant was a party to the lawsuit when the motions were filed and therefore, technically, had no authority to file motions in the case. However, given the liberal construction given to the Code of Civil Procedure, K.S.A. 60-102, the motions for return of garnished funds could also be treated as applications to intervene which the trial court implicitly granted by ruling on the merits of the motion. Cf., Gilley v. Farmer, 207 Kan. 536, 539-40, 485 P.2d 1284 (1971) (court allowed motion for summary judgment in garnishment case; held K.S.A. 60-102 applied to garnishment); Vernon’s Kansas C. Civ. Proc. § 60-102 (1963), Authors’ Comments.
Appellees contend that the intervention is not permissible because the Kansas statutes on garnishment are silent on the propriety of intervention. Kansas has no case law in this subject; intervention in a garnishment action in Kansas has occurred although neither party raised the issue. Purma v. Stark, 224 Kan. 642, 585 P.2d 991 (1978). The State of Washington did face the question, however, and stated:
“NACM contends that it had a right to intervene in the garnishment proceedings under CR 24(a)(2), which provides:
‘Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
In resolving this contention, we initially note that since there is a statutory void in the garnishment statutes as to intervention, the civil rules control except where inconsistent. Snyder v. Cox, 1 Wn. App. 457, 462 P.2d 573 (1969).” Zesbaugh, Inc. v. General Steel, 26 Wash. App. 929, 930, 614 P.2d 699 (1980).
The Supreme Court of Washington reversed the decision of the appeals court on other grounds, but specifically approved the conclusion that intervention is proper in garnishment actions. Zesbaugh, Inc. v. General Steel, 95 Wash. 2d 600, 601, 627 P.2d 1321 (1981).
In 38 C.J.S., Garnishment § 277(a), it is stated that some jurisdictions do not permit intervention in garnishment cases absent statutory authority; however, research of more current case law indicates no support for that rule and it appears timely intervention should be permitted. See, e.g., Pine Bluff Nat’l Bank v. Parker, 253 Ark. 966, 490 S.W.2d 457 (1973) (garnishment statute silent on intervention); El Paso County Bank v. Charles R. Milisen & Co., ___ Colo. App. ___, 622 P.2d 594 (1980) (Colo. Rev. Stat. § 103[o] allows intervention in garnishment action). From this, it appears intervention may be proper in a garnishment proceeding.
However, intervention must be timely sought. Generally, where there are no time provisions in the statute, the application must be made before the garnishment is satisfied. 38 C.J.S., Garnishment § 277(c). Here, the March and April payments were apparently already paid over to the plaintiffs in satisfaction of their garnishment request in those months. Therefore, Alice Walden’s motion to intervene and motion for return of garnished funds for March and April were not timely filed and should not have been granted. However, they were, as was CACE’s concerning the May garnishment.
Do the time limitations of K.S.A. 1981 Supp. 60-718(c) apply?
K.S.A. 1981 Supp. 60-718(c) states in pertinent part:
“The clerk shall cause a copy of the answer to be mailed promptly to the plaintiff and the defendant. Within twenty (20) days after the filing of the answer the plaintiff or the defendant or both of them may reply thereto controverting any statement in the answer. ... If the garnishee answers as required herein and no reply thereto is filed, the allegations of the answer are deemed to be confessed. If a reply is filed as herein provided, the court shall try the issues joined, the burden being upon the party filing the reply to disprove the sworn statements of the answer, except that the garnishee shall have the burden of proving offsets or indebtedness claimed to be due from the defendant to the garnishee, or liens asserted by the garnishee against property of the defendant.”
Garnishment is a creature of and governed by statute. Bollinger v. Nuss, 202 Kan. 326, 342, 449 P.2d 502 (1969). In construing statutes, when statutory language is plain and unambiguous, a court must follow that language. Krauzer v. Farmland Industries, Inc., 6 Kan. App. 2d 107, Syl. ¶ 4, 626 P.2d 1223, rev. denied 229 Kan. 670 (1981). Here the intervenors are neither plaintiffs, defendants nor garnishees so the statute does not apply. Furthermore, considerations of fundamental fairness would preclude applying this time limitation to an intervenor when it does not appear the intervenor was given notice of the action under the statute. Cf., Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 314, 94 L.Ed. 865, 70 S.Ct. 652 (1950) (’’elementary and fundamental requirement of due process in any proceeding ... is notice . . . and afford them an opportunity to present their objections.”); see also Board of Leavenworth County Comm’rs v. Cunningham, 5 Kan. App. 2d 508, 510, 619 P.2d 525 (1980), rev. denied 229 Kan. 669 (1981).
Considering the circumstances in this case, it appears the trial court was correct in denying Alice Walden’s motion for the return of the garnished funds of March and April, not because the 20-day time limit of K.S.A. 1981 Supp. 60-718(c) had passed, but because the intervenor did not timely file the motion, as the funds had already been paid over to the plaintiffs in satisfaction of the order. 38 C.J.S., Garnishment § 277(c). The decision of a trial court should be affirmed if correct, even if based on erroneous grounds. Farmers State Bank v. Cooper, 227 Kan. 547, Syl. ¶ 10, 608 P.2d 929 (1980). The May garnishment intervention was timely, however, because that money was not paid over until after the motion was made.
This case must be remanded to the trial court for findings of fact as to whether Alice Walden had an interest in the property. A jury trial would not be mandatory for such findings. Bollinger v. Nuss, 202 Kan. at 342.
Were the interests of Alice Walden subject to garnishment in satisfaction of the judgment debt of her husband? A review of the agreed statement of facts does not support the appellants’ contention that the court made such a finding. Such a ruling would be clear error because garnishment of joint tenancy property severs the joint tenancy and the garnishor can only seize that property which belongs to the judgment debtor. Purma v. Stark, 224 Kan. at 645; Walnut Valley State Bank v. Stovall, 223 Kan. 459, 462-63, 574 P.2d 1382 (1978).
Does a third-party purchaser for value, without notice of a garnishment, take subject to a garnishment on real property? As a general rule, rental payments which accrue before passing of title belong to the grantor without apportionment to the grantee. Stephenson v. Patton, 86 Kan. 379, 384, 121 Pac. 498 (1912); 52 C.J.S., Landlord & Tenant § 531. Here, the evidence shows the rental was due on May 1, 1981. As such, the rental accrued to CACE’s predecessor in interest, either William Walden or William and Alice Walden, and CACE had no interest in the rental for the month of May. See, e.g., Veatch v. Laskey, 29 Colo. App. 31, 477 P.2d 468 (1970).
Inasmuch as the appellant-intervenor Alice Walden may have an interest in the May, 1981, proceeds and timely intervened, we reverse and remand for further proceedings consistent with this opinion. The decision as to CACE Investment, Inc., is affirmed. | [
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McLaughlin, J.:
This is an action by the plaintiff, The First State Bank of Thayer, Kansas, for judgment on a promissory note executed by the defendant, Roe Spencer, to plaintiff-bank on July 19,1974, to pay off a gambling debt to two members of the board of directors of the bank, one being the chairman of the board and principal stockholder. The matter was submitted to the district court on a stipulated statement of facts. Defendant filed a motion for summary judgment, which was denied. Plaintiff then filed a motion for summary judgment, which was granted. Defendant appeals from this judgment.
In the latter part of April, 1974, defendant Roe Spencer, along with Larry Hudson, chairman of the board of the plaintiff, The First State Bank of Thayer, Cale Hudson, president of said bank, Dick Cornell, executive vice-president of said bank, Richard Debauge and Bob McGregor, both directors of said bank, and Art Brigham, Ed Sell and Corbett Thompson, all of Iola, went on a fishing trip to Toledo Bend, Louisiana. The trip was made in a motor home owned either by Larry Hudson or by Southeast Microwave Company, a company owned by Larry Hudson. Defendant was invited to make the trip by Larry Hudson.
During the trip, several members of the expedition indulged freely in the use of alcoholic beverages, including the defendant. A poker game was also organized with Larry Hudson, Richard Debauge and the defendant the prime participants. Markers were used in lieu of cash, and the defendant found himself owing approximately $6,760 by the end of the trip. Due to his inebriation, the defendant was never quite sure how much money he lost.
After the fishing trip, defendant went to Seattle for three to four weeks and upon his return, he learned that Larry Hudson had been trying to contact him. Larry Hudson did later contact defendant and advised him that Richard Debauge had either written a check on Larry, or somehow put Larry Hudson in a bind, and that Hudson had to have money from defendant. Hudson suggested that defendant get the money through defendant’s bank at Iola, but defendant advised him that he could not do that. Then Hudson made arrangements for the money to be obtained through his bank, The First State Bank of Thayer, plaintiff herein. The arrangements for the loan were made by Larry Hudson who directed the executive vice-president of the bank, Dick Cornell, to prepare the note for execution by defendant and to pay the proceeds over to Hudson, chairman of the board of the bank. All the arrangements for the loan, including the certified check, the promissory note, and all other papers in connection with the loan were prepared prior to the defendant going to the bank. The entire loan transaction was completed in five to ten minutes. The proceeds from the note (an envelope filled with $100 bills) were delivered to Larry Hudson by Dick Cornell. The note was dated July 15,1974, but the cashier’s check was dated July 19, 1974, which was the date the defendant went to the bank and the only day the defendant was in the bank concerning this transaction. That consideration for this note was a gambling debt to two members of the board of directors of the bank, one being chairman of the board, was common knowledge to all officers of the bank. The officers of the bank knew that some explanation of the basis for the note would have to be given to the bank examiners, and the explanation given was that the defendant’s personal financial statement justified the making of this unsecured note.
Defendant has never paid anything on the principal of this note, but did make a number of interest payments. The last interest payment was made in January, 1978.
The defendant contends: (1) that it was error for the court to find the promissory note of defendant was not made in further anee of a gambling transaction and therefore was not void as against the public policy of Kansas; (2) that it was error for the court to find the promissory note of defendant was supported by valuable consideration received by defendant and was not in furtherance of an illegal transaction; (3) that it was error for the court to find that plaintiff or its officers were not a part of the illegal gambling transaction or without knowledge of the intended use of the proceeds of the promissory note; (4) that it was error for the court to find the plaintiff was not responsible for the acts of its chairman of the board and other officers and their actions concerning the defendant’s promissory note; and (5) that it was error for the court to find the plaintiff was not a part of an illegal gambling transaction when it was conceded by plaintiff that its officers had full knowledge of the gambling transaction and that the intended use of the funds was to reimburse the board chairman and one of its directors who participated in the illegal gambling transaction.
The plaintiff contends: (1) that the trial court properly held that plaintiff was not a participant in the illegal transaction; and (2) that the trial court properly held that defendant’s promissory note was supported by valuable consideration received by defendant and was not in furtherance of an illegal transaction.
The enforceability of antecedent gambling debts has never been determined by the Kansas courts. The majority view may be found in Annot., 53 A.L.R.2d 345, which states at 367:
“Unlike loans to enable the borrower to engage in gambling, loans extended to enable the borrower to pay antecedent gambling debts generally are recoverable by the lender, in the absence of specific statutory regulation to the contrary.”
See also Clemons v. Succession of Johnson, 10 La. App. 230, 120 So. 664 (1929); Pohlman v. Bretz, 20 Ohio App. 273, 153 N.E. 139 (1921). However, would the foregoing be applicable in a situation where the transaction was all arranged by the bank’s officers and directors, which gave the corporation full knowledge of the entire transaction?
Defendant advises us that in the trial court plaintiff relied upon a statement contained at 38 C.J.S., Gaming § 27, which states:
“In the absence of statute, loans made in good faith to a loser to pay his gambling losses may be recovered, even though the lender knew the purpose of the loan; and payments at the loser’s request in discharge of such debts are similarly recoverable.”
It appears that plaintiff and the court relied only upon a portion of the statement contained in the foregoing section 27, because the same section continues:
“However, the lending must not be a device of one of the parties to the contract to enable the winner to sue the loser for his losses, for the law pierces disguises of this sort, and will not allow the winner to recover from the loser by a subterfuge.”
It appears that the promissory note transaction was actually a device for Larry Hudson, chairman of the board of the plaintiff, to enable him to recover the gambling debt from the loser through the bank.
The rules of law which have come to our attention in this case which would favor plaintiff’s position contain the additional proviso that the plaintiff may recover only if the evidence shows the plaintiff was not in any way connected with or aided in the unlawful gambling contract. In 53 A.L.R.2d at 367, we find the general rule stating that loans extended to enable the borrower to pay antecedent gambling debts generally are recoverable by the lender, in the absence of specific statutory regulation to the contrary. However, further along in the annotation we find the following:
“The evidence failing to show that either the lending bank or any of its officers were in any way connected with or aided in the unlawful gambling contract which the borrower had entered into with a commission company, and such evidence showing that the ‘margins’ which the borrowers used the borrowed money in paying, and the illegal contract under which they accrued, had accrued before the money was loaned to them, the bank was not particeps criminis with the borrower . . . .” (Emphasis supplied.) Annot., 53 A.L.R.2d at 368.
See also Lyons Milling Co. v. Goffe & Carkener, 46 F.2d 241, 247 (10th Cir. 1931); Leite v. Dietz, 95 Cal. App. 2d 41, 212 P.2d 265 (1949).
In Irwin v. Williar, 110 U.S. 499, 510, 28 L.Ed. 225, 4 S.Ct. 160 (1884), the Supreme Court stated:
“It is certainly true that a broker might negotiate such a contract without being privy to the illegal intent of the principal parties to it which renders it void, and in such a case, being innocent of any violation of law, and not suing to enforce an unlawful contract, has a meritorious ground for the recovery of compensation for services and advances.” (Emphasis supplied.)
It has long been the settled law of this state that enforcement of a gambling debt is against public policy and that the courts will not aid in the enforcement of such debts. In the case of Cooney v. Hauck, 112 Kan. 562, 563, 211 Pac. 617 (1923), our court stated:
“The contract was a wager upon the result of a game. Whether or not it was forbidden by the statute making it a misdemeanor to bet ‘upon the result of any game of skill or chance, whether with dice or cards or other thing’ (Gen. Stat. 1915, § 3632), it was against public policy, and courts will not lend their aid to its enforcement.”
The court also cited 12 R.C.L. at 747, 748, which stated:
“ ‘Moreover, as a general rule, the courts of this country, in the more recent decisions, have refused to enforce all wagering contracts, even though they are not declared illegal by statute, holding that wagers of all kinds are inconsistent with the established interests of society, in conflict with the morals .of the age, and void as against public policy.’ ” 112 Kan. at 563.
See also Cleveland v. Wolff, 7 Kan. 184, 187-188 (1871).
The plaintiff urges it is an innocent third party in this transaction. However, the depositions taken in this case reveal that the plaintiff and its officers were fully aware of all the circumstances involved in this transaction from its inception. The loan was arranged by the chairman of the board of the bank. The note was prepared by the executive vice-president of the bank four days prior to the defendant going to the bank and signing the same. The chairman was a participant in the poker game and received the proceeds of the loan. A director, Richard Debauge, appears to have also shared handsomely in the proceeds.
It is clear from the stipulated facts that the plaintiff had full knowledge of this fishing trip and poker game. The chairman of the board, the bank president and two more directors of the bank were present on the trip, and the chairman of the board and one of the directors were major participants in the poker game in addition to the defendant. Further, other bank officers who did not make the trip were fully aware of the fishing trip, the poker game and the purpose of the promissory note and loan made to defendant on July 19, 1974. Such knowledge must be imputed to plaintiff.
We are not ready to say that the public policy of Kansas is such that it would allow all of these bank officers, particularly the chairman of the board, the president, the executive vice-president and two other directors, to take part in illegal gambling contracts and transactions and, being unable to enforce or collect the illegal gambling debt, to transfer this to the bank, which is a distinct entity but is governed by its board of directors and officers, and to say that all the officers and members of the board of directors can do through a bank as a separate entity what they could not do themselves, i.e., collect an unlawful gambling debt, thus being able to accomplish indirectly what could not be done directly.
This case was submitted to the trial court on a stipulated statement of facts. Therefore, this court has the same opportunity to consider the evidence as the trial court. Stith v. Williams, 227 Kan. 32, Syl. ¶ 1,605 P.2d 86 (1980). The knowledge of the nature and purpose of the note is imputable to the bank through the knowledge of its officers and directors. We conclude the promissory note, under the facts of this case, was made in furtherance of a gambling transaction known to the plaintiff and is unenforceable as against the public policy of this state. Cooney v. Hauck, 112 Kan. 562; 38 C.J.S. Gaming § 27.
The judgment of the trial court is reversed with directions to enter judgment for the defendant. | [
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