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The opinion of the court was delivered by
Schroeder, J.:
This is a direct appeal by the defendant in a criminal action from a conviction for escaping lawful custody contrary to the provisions of K. S. A. 21-734. Appeal has been duly perfected.
The underlying issue presented is whether the appellant was in lawful custody on June 26, 1967, at the time he actually departed from the Pomona Reservoir Honor Camp, and thereby unlawfully gained his liberty contrary to the provisions of 21-734, supra.
On the 19th day of March, 1965, the appellant was sentenced to the Kansas State Penitentiary at Lansing, Kansas, for a term less than life by the district court of Reno County, Kansas, upon his plea of guilty to the crime of uttering, as defined by K. S. A. 21-609.
On the 24th day of January, 1967, while the appellant was serving the sentence imposed by the district court of Reno County, he was transferred by the Director of Penal Institutions of the State of Kansas from the Kansas State Penitentiary at Lansing to the Kansas State Industrial Reformatory at Hutchinson as a permanent party to the Honor Camp at Pomona Reservoir. The appellant remained at the Pomona Honor Camp until his departure therefrom on the 26th day of June, 1967.
The Pomona Honor Camp is located at the Pomona Reservoir which is situated wholly within Osage County, Kansas. The campsite is located approximately four miles north of Lyndon on U. S. Highway No. 75, and is located on a portion of the public park leased to the Kansas State Park and Resources Authority, by the Department of the Army.
The Honor Camp consists of approximately two acres of land and the facilities thereon for prison inmates assigned to the camp are mobile units providing dining and sleeping accomodations. There is also a movable building located on the site which provides laundry and recreational facilities for the prison inmates, as well as housing for camp supplies. A small trailer house provides quarters and office space for the correctional officers in charge of the prison inmates assigned to the Honor Camp. The camp has no perimeter walls or fences, and the officers in charge are unarmed.
The inmates at the camp perform labor in the public park that is leased to the Kansas State Park and Resources Authority, and the labor consists of general park clean-up and maintenance work. The work day at the camp begins at 8:00 a. m. and ends at 4:30 p. m., except for those inmates who are selected to cook for the other inmates and perform housekeeping duties in the maintenance of the camp itself. The inmates who cook and perform housekeeping duties are selected on a rotation basis as nearly as possible, and the hours they work vary accordingly.
Three correctional officers are assigned for duty at the Pomona Honor Camp twenty-four hours a day. They are employed by the State of Kansas under the management and supervision of the Director of Penal Institutions, as are other correctional officers who are assigned duty at the Kansas State Penitentiary and the Kansas State Industrial Reformatory. (K. S. A. 75-20d02.)
Upon being transferred to the Honor Camp each inmate is oriented with respect to the conduct expected of him, primarily as it pertains to the inmates’ presence which must be known by one of the correctional officers at all times, particularly while at the campsite during nonworking hours. The inmates are allowed time for a limited amount of recreation at the campsite, but are required to be within the above described sleeping facilities by 10:30 p. m.
A “head count” of the inmates is made by the correctional officers periodically during the twenty-four hour day, including the hours while the inmates are performing labor at the direction of personnel employed by the Kansas State Park and Resources Authority. On the 26th day of June, 1967, Royce Pendlay, one of the correctional officers, made a “head count” of the inmates at 10:30 p. m., at which time the appellant was present. Another '“head count” made at 11:45 p. m. on that day disclosed the appellant was not present at the camp.
The appellant was not seen again by any correctional officer or other prison official employed by the State of Kansas until the 11th day of September, 1967, at which time he was returned to the Kansas State Penitentiary from the custody of the Los Angeles police department, Los Angeles, California.
Thereafter the appellant was returned to Osage County, Kansas, where in accordance with K. S. A. 62-401 he was tried by a jury and convicted of the crime of escape as defined by K. S. A. 21-734, which reads:
“If any person confined at hard labor for any term less than life shall escape therefrom without being guilty of breaking such prison within the meaning of the preceding section, he shall upon conviction be punished by confinement and hard labor for a term not exceeding three years, to commence at the expiration of the original term of imprisonment.”
The preceding section, K. S. A. 21-733, reads:
“If any person confined in the penitentiary for any term less than life shall escape from such prison or from the custody of the officers, he shall be liable to the punishment imposed for breaking prison.”
From the foregoing two sections it is apparent that 21-733, supra, makes it a criminal offense to escape from confinement in the penitentiary or from the custody of the officers at the penitentiary, while 21-734, supra, makes it a criminal offense to “escape” from confinement at hard labor without breaking prison.
In State v. Dearman, 199 Kan. 357, 430 P. 2d 285, the court said:
“To determine which of the various statutes relating to escape is applicable to the situation at hand, consideration of each of the sections is required. K. S. A. 21-732, 21-733, 21-734 and 21-737 all relate to the confinement of a person ‘for any term less than for life.’ In 21-733, supra, specific reference is made to confinement in the penitentiary, while in both 21-734, supra, and 21-737, supra, at hard labor is specifically mentioned in connection with the confinement. Clearly, the confinement mentioned in each of these sections has reference to sentence resulting from a felony conviction. A study of the severity of the sentence prescribed for a violation of each of tírese sections also discloses they relate to felony convictions.” (pp. 358, 359.)
Here, too, application of 21-734, supra, to the situation at hand requires a consideration of K. S. A. 21-732, 21-733 and 21-734.
Another recent case dealing with the crime of “escape” is State v. Davis, 199 Kan. 33,427 P. 2d 606, where the court said:
“. . . Our statutes relating to the administration of justice do not define the term ‘escape.’ It has been held that statutes enacted covering escape have been considered declaratory of, and supplementary to, the common law. . . . At the common law, the crime of ‘escape’ was committed by a prisoner when he voluntarily departed from lawful custody without breach of prison. . . . To constitute an escape on the part of the prisoner there must be lawful custody and an actual departure from the place of confinement whereby he unlawfully gains his liberty. . . . The use of force or violence is not a necessary element of an escape . . ., and an escape is distinguished from prison break by this circumstance. . . .” (p. 35.) (Emphasis added.)
Was the appellant in lawful custody when he departed from the place of confinement at the Pomona Honor Camp?
The appellant would answer this question in the negative, and makes various approaches in his attack. In his motion for a new trial the appellant challenged three instructions given by the trial court as erroneous. If these instructions are correct the foundation of his attacks fails. These instructions are:
“No. 6. The law provides that under the general supervision and management of the State Director of Penal Institutions, all persons committed to the State Penitentiary at Lansing or the Industrial Reformatory at Hutchinson are required to perform labor in the construction and repair of the buildings or property on state owned or leased grounds. The Warden of the Penitentiary and the Superintendent of the Industrial Reformatory shall, when so requested by the Director of Penal Institutions, designate such prisoners as are deemed trustworthy, dependable and capable for such employment. It is also provided by law that under the direction of the Director, the Warden shall employ the surplus prison labor in extending and repairing the state and county roads and upon other work exclusively for the benefit of the state.
“A person lawfully committed to the penitentiary who is transferred or assigned to perform such work or labor is in lawful custody at the place assigned.
“No. 10. The written instrument identified as Exhibit 5 is a commitment on a judgment rendered and sentence imposed on the 19th day of March, 1965, by the District Court of Reno County, Kansas, and constitutes lawful custody and the defendant was lawfully committed thereon for a term less than life, to the Kansas State Penitentiary at Lansing, Kansas, and that the same thereafter continued and was on June 26, 1967, in full force and effect. [This instruction has not been attacked on appeal.]
“No. 11. By the terms of the written instrument identified as Exhibit 2, the defendant was lawfully transferred to the Pomona Honor Camp.”
In our opinion these instructions correctly state the law.
The information originally filed charged that the appellant did “unlawfully, willfully and feloniously, while confined at hard labor for a term less than life, escape therefrom without breaking the prison of the penitentiary.”
Thereafter the trial court sustained a motion to quash on the ground the information was insufficient to apprise the appellant of the nature and cause of the criminal act charged.
The appellant was then charged in an amended information which reads that the appellant did:
“. . . unlawfully, willfully and feloniously, while confined at hard labor for a term less than life, being lawfully committed to the Kansas State Penitentiary at Lansing, Kansas, on a commitment issued on a judgment rendered and sentence imposed on the 19th day of March, 1965, by the District Court of Reno County, Kansas, and being therefrom transferred on the 24th day of January, 1967, by order of the Director of Penal Institutions, State of Kansas, pursuant to K. S. A. 76-2442 and K. S. A. 76-2442a, to the Kansas State Industrial Reformatory at Hutchinson, Kansas, as a Permanent Party to the Honor Camp at Pomona Reservoir located in Osage County, Kansas, escape therefrom without breaking the prison of the Penitentiary. . . .”
The basis of the appellant’s attack in most of his specifications of error is that he was convicted of escape without breaking the prison of the penitentiary on a charge of escaping from the Pomona Reservoir Honor Camp. Stated in another way, the appellant asks whether the crime of escaping without breaking the prison of the penitentiary can be committed by absenting himself from the Pomona Reservoir Honor Camp.
The appellant has attacked the information on the ground the trial court did not have venue or jurisdiction of the offense alleged, and that the information did not state facts sufficient to constitute a public offense. He makes a further attack contending his motion to discharge should have been sustained on the ground the evidence was insufficient to support the verdict, and that the trial court erred in giving instructions to the jury.
It must be conceded K. S. A. 62-401 makes it mandatory that a criminal offense be prosecuted in the county in which it is committed. It has been held that a court must have venue of an offense or it does not have jurisdiction. (State v. Fields, 182 Kan. 180, 318 P. 2d 1018.)
The appellant argues nowhere in the statutes is there created a state penal institution in Osage County, Kansas, or one which could be called or considered a prison or penitentiary as contemplated in K. S. A. 21-734 or 21-733. If the appellant’s conviction is upheld, it is argued, the Director of Penal Institutions is given the authority under K. S. A. 76-2442a to create venue or jurisdiction over the offense charged, and he is thereby authorized to modify the code of criminal procedure. The appellant argues the trial court could not find that 21-734, supra, applied to an Honor Camp situation; that to do so would hold the Honor Camp facility to be the prison or penitentiary. To pursue his point further the appellant contends he was neither in lawful custody nor in confinement pursuant to his conviction and commitment when he departed the Pomona Reservoir Honor Camp because his custody and confinement at the time of departure was pursuant to K. S. A. 76-2442 and 76-2442a.
The appellant contends to construe 76-2442 and 76-2442a, supra, together with 21-734, supra, as creating the crime of escaping from an Honor Camp is violating the well recognized criminal rule against any liberal construction of a criminal or penal statute.
We think the appellant misconstrues the applicable statutes.
K. S. A. 76-2311 authorizes the State Director of Penal Institutions to transfer prisoners from the state penitentiary to the reformatory in the following language:
“The director may make requisition upon the warden of the state penitentiary, who shall select such prisoners as are required by such requisition from among the youthful, well-behaved and most promising prisoners of the state penitentiary convicted of felony, and transfer them to the reformatory, for education and treatment under the rules and regulations thereof; and the director is hereby authorized to receive and retain, during the term of their sentence to the state prison, such prisoners so transferred.”
Among other things 76-2442, supra, authorizes the warden to employ prisoners in the penitentiary to perform labor in extending and repairing the state and county roads, and upon other work exclusively for the benefit of the state.
K. S. A. 76-2442a provides in part:
“The director is hereby authorized to use any of the prisoners at the state penitentiary and the industrial reformatory at Hutchinson, for common or skilled labor so far as practicable in the construction and repair of the buildings or property on state owned or leased grounds. The warden of the penitentiary and the superintendent of the industrial reformatory shall, when so directed by the director, designate such prisoners as within their discretion are deemed trustworthy, dependable and capable for such employment. All such prisoners shall be accompanied by sufficient guards designated by such officers: . . .”
Under the foregoing statutes it is readily apparent the appellant was properly assigned to the Honor Camp at Pomona Reservoir to perform “hard labor” pursuant to his commitment.
The evidence established that the appellant was in the lawful custody of correctional officers assigned for duty at the Pomona Honor Camp; that these officers were employed by the State of Kansas under the management and supervision of the Director of Penal Institutions. The appellant, therefore, was in lawful custody at the place to which he was assigned for work in Osage County.
To adopt the reasoning of the appellant would mean that a prison inmate could not be employed to perform labor on state property outside Leavenworth and Reno Counties where the penal institutions are located. It is inconceivable the legislature had any such geographical restriction in mind when it passed the legislation in question authorizing employment of prison inmates. We hold the statutes authorizing the use of prison labor authorizes the performance of such labor in each and every county of the state.
K. S. A. 21-734 is a penal statute and has statewide application. We think the appellant erroneously construes 21-734, supra, to require that the escape of a prisoner shall be from the penitentiary. Such construction fails to give adequate consideration to K. S. A. 21-732 and 21-733.
By the provisions of 21-733, supra, the escape of a prisoner is limited to a person confined in the penitentiary for any term less than life. This statute then proceeds to speak of the escape from such prison or from the custody of the officers at the penitentiary.
The language of 21-734, supra, does not speak of a person confined in the penitentiary, but of a person “confined at hard labor for any term less than life” who “shall escape therefrom,” where the escape does not fall within the provisions of 21-733, supra. The further expression “without being guilty of breaking such prison” within the meaning of the preceding section is designed to exclude those who escape from confinement in the penitentiary. The literal interpretation of the provisions of 21-734, supra, covers the situation in which the appellant escaped precisely. He did not escape from confinement in the penitentiary, but did escape while in lawful custody under a court order which confined him at hard labor for a term less than life.
The elements of the crime of “escape” under 21-734, supra, are (1) the prisoner must be in lawful custody serving a sentence confining him at hard labor for a term less than life; and (2) the prisoner must actually depart from the place of confinement where he unlawfully gains his liberty. These elements were established by the evidence presented by the state, and upon such evidence the jury found the appellant guilty. The evidence consisted of the testimony of witnesses and a certified copy of the journal entry, sentence and commitment of the appellant, together with a certified copy of the order of transfer dated January 24, 1967, signed by the Director, disclosing the transfer of the appellant to the Kansas State Industrial Reformatory, Hutchinson, Kansas, as a permanent party to the Honor Camp at Pomona Reservoir. This transfer recited as authority the provisions of 76-2311 and 76-2442a, supra. It has been held that certified copies of the records of commitment of a prisoner kept by state penal institutions as authorized or required by law are admissible in evidence to prove lawful confinement. (State v. Davis, supra; State v. Hall, 187 Kan. 323, 356 P. 2d 678; State v. Loyd, 187 Kan. 325, 356 P. 2d 825; and see K. S. A. 60-465 [2] and [3].)
There is no dispute in the evidence that the appellant actually departed from the Pomona Honor Camp located in Osage County, Kansas, on June 26, 1967.
The appellant’s contention that he was illegally transferred from the Kansas State Penitentiary at Lansing, Kansas, to the Kansas State Industrial Reformatory at Hutchinson, Kansas, as a permanent party to the Honor Camp at Pomona Reservoir is without merit. The work performed by the appellant while assigned for labor and correction to the Pomona Honor Camp was exclusively for the benefit of the state.
The appellant contends the trial court erred in excluding certain testimony of the witness, Charles D. McAtee, the Director of Penal Institutions.
The appellant’s proffer of the testimony of Mr. McAtee pertains to financial arrangements made with the State Park and Resources Authority for any building or repair done at the Pomona Reservoir Honor Camp in compliance with the provisions of 76-2442a, supra. This testimony was immaterial to the issues in the case, and the trial court properly sustained an objection thereto. The authority of the Director of Penal Institutions to transfer the appellant to the Pomona Reservoir Honor Camp is a question of law to be determined from the statutes and not a question of fact.
After a careful review of the record presented on appeal, we hold the appellant has failed to make it affirmatively appear the trial court erred.
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The opinion of the court was delivered by
Harman, C.:
This appeal is from a post-divorce allowance of increased child support payments together with attorney fees for obtaining the increase.
The appellee, Nancy Perry Shaw, formerly Nancy Perry Tyler, and the appellant, Daniel Waldo Tyler, who were married in 1953, were divorced October 21, 1959, in the district court of Johnson county, Kansas. They were the parents of two children, Frank Waldo and Lisa, then aged four and two years, respectively. The divorce decree approved a property settlement agreement entered into by the parties and, subject to further order of the court, ordered support money to be paid by appellant in accord with the agreement, that is, the sum of $150.00 per month for each child; when each child entered high school the payments were to be $200.00 per month and when each child entered college the monthly payments were to be increased to $250.00; additionally appellant was to pay medical and dental expenses for each child in excess of $200.00 annually, and tuition, room and board for a child attending a private school or a college located outside the greater Kansas City area. The divorce decree approved an irrevocable trust agreement established by appellant for the benefit of the children which was provided for in the property settlement agreement, and it also recited the trial court retained jurisdiction of the matter of support of the children during the minority of each. The property settlement agreement also provided that appellee receive the sum of $160,000 in cash, wedding gifts and, as alimony, the sum of $1,250 per month during her lifetime or until remarried.
Appellee remarried in December, 1961. She and the two children, and another child bom as a result of her marriage to Mr. Shaw, have since resided in Wichita. Appellant has also remarried, as a result of which he has a natural born child and two adopted children.
February 16, 1967, appellee filed her application in the trial court for increased monthly child support payments to be made by appellant, requesting the sum of $500.00 for each child. Appellant resisted this application. The trial court heard evidence and on October 30, 1967, ordered appellant to pay $400.00 per month support for each child, and also, as part of the costs, the sum of $2,000 for attorney fees for appellee’s counsel. Appeal is from these orders.
The trial court made findings of fact including the following:
“5. At the time of the divorce of tire parties, the minor children were age two and four, and were the only children in the home. The parties and the two minor children lived at 3117 West 68th Street, Mission Hills, Kansas. The home had approximately 4,500 square feet in it situated on extensive grounds, and had a 35-foot living room and lovely bedrooms and bathrooms for the children. At that time, the parties belonged to the Mission Hills Country Club, the Saddle and Sirloin Club, and the River Club. The house in which the parties lived, and furnishings therein, were valued by the two of them at $160,000.00. This was the figure used in the divorce proceedings to obtain Plaintiff’s $160,000.00 cash settlement while Mr. Tyler received the home and all furnishings, fixtures and household goods situated therein except Plaintiff’s personal effects and certain wedding gifts. With the settlement money of $160,000.00, Plaintiff bought and furnished a $45,000.00 house on 70th Terrace, Johnson County, Kansas, for herself and the minor children. The balance was invested in municipal bonds.
“The Tyler family traditionally lived a relatively formal life. Plaintiff and Defendant spent about $5,000.00 annually to pay for a nurse-maid and other help. Plaintiff and Defendant constantly had a nurse-maid for the children.
“Defendant and Plaintiff took numerous trips dining their marriage. Their honeymoon was in Hawaii and they went to Nassau and went on a Caribbean •cruise and were guests on General Sarnoff’s yacht, to name a few.
“During their marriage, Defendant purchased a great deal of jewehy for Plaintiff, totaling about $70,000.00, $35,000.00 of which Plaintiff returned to the jewehy company and would not accept. The children had everything in the way of clothing, toys, and anything else they wanted. Their clothing was the finest. The children went to Barstow summer camp. Mr. Tyler always -wanted the best and enjoyed the best. He drove Cadillac automobiles and always wore custom made suits.
“6. The adjusted gross income of the parties, for federal income tax purposes, during the year of divorce, 1959, was as follows:
“Plaintiff............................... $8,610.14
“Defendant .............................. $54,700.00
“The adjusted gross income of each of the respective parties during the year 1965 as reported for federal income tax purposes, was as follows:
“Plaintiff — $5,868.75 “Defendant — $87,285.00
“(Gross income for year, including tax “(Gross income for year, including tax
■exempt municipal securities income, exempt municipal securities income,
etc., was $7,413.55.) etc., was $104,613.00.)
“Mr. Tyler’s income as disclosed by his tax returns is derived not from any ■salary but solely from stocks, bonds, investments and trusts.
"8. An unaudited and unverified balance sheet submitted by Defendant ■as of February 26, 1959, disclosed Defendant’s net worth to be $1,402,164.00. An unaudited and unverified balance sheet submitted by Defendant as of .August 31, 1965, disclosed Defendant’s net worth to be $1,448,554.58.
“9. Plaintiff acquired a residence with her own funds in 1962 in Wichita for $45,000.00, which property is now subject to a mortgage in the approximate amount of $23,000.00.
“14. Since October of 1959, the date of divorce, the Defendant has paid a total of $300.00 for medical and dental expenses for the children, all other medical and dental expenses having been paid by plaintiff. Each of the minor children went to a private school in Wichita for a year and a half after Plaintiff moved to Wichita. Thereafter, the minor children have been in public schools with the exception of Lisa, who went to a private school for the school year commencing in September, 1966. Defendant has paid the tuition to private schools, but has refused to pay for text books, lunches, and bus transportation. He has also refused to pay $150.00 for special therapy for Frank at the Institute of Logopedics, a special therapy and correctional institution in Wichita.
“15. The children are very active, energetic children and participate in many activities and athletics. The only real vacation the children have had before and since Plaintiff’s marriage to Mr. Shaw has been a trip to Hawaii taken in the summer of 1965. This trip was financed by the proceeds of sale of some stock Plaintiff held in Martin-Marietta Corporation and Lear Jet.
“16. Defendant had been around the world by the time he was a teenager and had gone to camp every year and had been to Hawaii on vacation with his family. When Plaintiff was a child she always went to summer camp.
“17. The Property Settlement Agreement hereinabove referred to provided for the creation and establishment of an Irrevocable Trust for each of the two children and on the 11th day of August, 1959, such a trust was established with the Commerce Trust Company. A copy of such trust has been admitted into evidence and is referred to by reference herein. At the time the trust was executed on the 11th day of August, 1959, the sum of $100.00 was transferred to it and that remained the only asset of the trust until February of 1962, several months after the remarriage of Mrs. Shaw, when securities in Martin-Marietta Corporation having a value of approximately $249,900 were transferred and deposited into the trust. The present value of the corpus and accumulated income of such trust is $231,530.91.
“18. In August of 1959, the Defendant was required to establish an escrow account at the Commerce Trust Company, Kansas City, Missouri, consisting of securities which would secure the performance by the Defendant of obligations imposed upon him in the Property Settlement Agreement of the 11th day of August, 1959. Capital stock in Martin-Marietta Corporation valued at approximately $249,900.00 was transferred from such escrow account at Commerce Trust Company to the Irrevocable Trust for the benefit of the children, in February, 1962. In February of 1967, the Defendant withdrew from said escrow account securities having a value of more than $300,000.00. At the present time, this escrow account consists of securities having a value of approximately $50,000.00.
“19. Only one discretionary distribution has been made from said trust, that in the amount of $375.00, to send Frank to camp during the summer of 1966, which distribution was requested by Waldo E. Tyler, grandfather of the minor children, without Plaintiff’s knowledge.
“20. At no time has Plaintiff requested a distribution from the trust for the benefit of the children. The income from the trust in 1966 was $7,188.74. Considering the accumulated income of the trust for five years and three months, the trust estate has suffered an attrition of $19,000.00, with only one distribution in the amount of $375.00 as aforesaid. Mr. Vernon Kassebaum, an attorney in Kansas City, Missouri, had contacted the Commerce Trust Company, Trustee, in 1965, as counsel for Plaintiff, the mother of the children, to see what could be done to produce some appreciation in the trust.
“21. Plaintiff has always known that she could apply for a discretionary distribution from the Commerce Trust Company for the benefit of the children, but she has declined to attempt this for the reason that she considers the trusts as an ‘inheritance’ for the children. Plaintiff did not know the $375.00 distribution was an invasion of the trust.
“22. This Court cannot make an order herein which is binding on the Trustee of said trusts to make or not to make a discretionary distribution.
“23. From all of the testimony herein, and the circumstances involving the divorce, said trusts were in fact created chiefly and principally to provide the children with an estate of their own and not to provide the children with current support. The trusts were created at the insistence of Plaintiff, mother of the minor children. . . .
“24. The cost of living has risen since the divorce in 1959, and the cost of supporting and maintaining children 10 and 12 years old (now) is greater than supporting children 2 and 4 years old (at time of divorce).
“25. The sum of $150.00 per month support is inadequate for the current maintenance and support of the children, and the Defendant is financially able to contribute substantially more to their support.”
Additionally, the trial court made findings as to amounts of capital expenditures made by appellee for the benefit of her family, living expenses allocable to each member thereof, and specifically found appellee had expended for the support and maintenance of Frank and Lisa the sum of $523.85 each per month, and it made the following conclusions of law:
“1. The child support and other payments concerning which Defendant is obligated to pay for the benefit of the minor children, are insufficient. On the basis of the facts and evidence, Defendant should be ordered to pay Plaintiff the additional sum of [$250.00] per month for child support for each child . . . commencing with the month of June, 1967, until further order of this Court. All other provisions set forth in the Property Settlement Agreement relating to the minor children shall remain the same. The Defendant is financially able to make such increased support payments.
“2. The minor children are entitled to be raised in substantially the same environment and station of life as they would have enjoyed had their parents continued living together.
“3. It is obligatory upon the Commerce Trust Company, Trustee of the trusts dated August 11, 1959, in considering whether or not a discretionary distribution should be made to or for the benefit of the minor children herein, to consider whether or not Defendant, the children’s father, who is primarily responsible for their support, has income and resources separate and apart from the trusts which are ‘available’ for the support of said children, and, if so, to refrain from making a distribution. Creation of such trusts did not forever expunge the right of the minor children to seek an increase in child support from their father. This is further evidenced by this Court finding in its decree of divorce that provisions pertaining to support of the minor children would be subject to further order of this Court. Such trusts were set up chiefly and principally for the purpose of providing an estate for these minor children, and the mother of these minor children, mindful of their future welfare, has treated such trust in light of such purpose. The existence of these trusts, which have suffered an attrition in value after considering accumulated income for five years and three months, of $19,000.00 since their creation (despite a contention by counsel for Defendant that the trusts by attainment of majority of the childen should be worth a half million dollars), should not be material in this cause in light of the substantial income and wealth of the Defendant, whose resources are ‘available’ for the benefit and support of the minor beneficiaries as their father.
“4. The minor children are not precluded from attaining an increase in child support payments by their father simply indicating to the Court as his counsel has done in this case that Defendant is willing that all of the income of the trust may be used for the benefit and support of these minor children. The Trustee of the trust is not bound by order of this Court relative to distribution of funds from the trust. If the mother of these children would have requested and received a distribution of income from the trusts, then the trusts would now be worth approximately $190,000, some $60,000 less than the original value of the trusts created over five years ago.”
Appellant contends the trial court abused its discretion in ordering him to pay $250.00 per month additional support money without requiring appellee first to resort to the trust fund for such increase. He argues the trust fund was established to provide support for the children and was, under its terms, available for their support during their minority. This contention requires a closer look at the trust agreement. Funds came into it by reason of the following proviso in the parties’ property settlement agreement:
“Second Party [appellant] hereby agrees that either [1] upon the death of First Party [appellee], or [2] the marriage of First Party, or [3] as soon as there is no living child of First and Second Parties who is younger than twenty-one (21) years of age, whichever first occurs, he will transfer and deliver, or cause to be transferred and delivered, cash or securities having a then market value of two Hundred and Fifty Thousand Dollars ($250,000.00) to Commerce Trust Company, Trustee under the Trust Indenture dated 11th day of August, 1959, a copy of which is attached hereto and by reference is made a part hereof.”
The trust agreement itself first recited that appellant, the settlor, had deposited with the trustee, The Commerce Trust Company, the sum of $100.00 to be held by it under the terms of the agreement, along with all other property coming into the trust estate. In pertinent part the trust agreement then provided:
“B. Either [1] upon the death of Nancy P. Tyler, if she should not remarry, or [2] upon her remarriage if she should remarry, or [3] as soon as there is no living child bom of the settlor’s marriage with Nancy P. Tyler who is younger than twenty-one (21) years of age, whichever first occurs, the trustee shall divide all of the property then constituting the trust estate into two equal shares. One of said shares shall be named for the settlor’s son, Frank Waldo Tyler, and shall be designated as the ‘Frank Waldo Tyler Share’, and the other of said shares shall be named for the settlor’s daughter, Lisa Tyler, and shall be designated as the ‘Lisa Tyler Share’. Each of said shares shall be held, administered and distributed as follows:
“(1) In the event any payment should be made to the trustee by the settlor to carry out his obligation to make certain payments for the support of his children or the education of his children or for the medical and dental expenses of his children, all pursuant to a certain property settlement agreement between the settlor and Nancy P. Tyler dated August 11, 1959, then the trustee shall immediately pay to the beneficiary for whom said share is named any payment made by the settlor to the trustee for the support of said beneficiary, and the trustee shall immediately pay to or use for the benefit of said beneficiary any payment made by the settlor to the trustee for the education of said beneficiary or for the medical and dental expenses of said beneficiary. In no event shall any payment made by the settlor to the trustee under this subparagraph (1) be retained in trust by the trustee.
“(2) If the beneficiary for whom said share is named is younger than twenty-one (21) years of age at the time said share is to be set aside then until said beneficiary attains the age of twenty-one (21) years (or until the death of said beneficiary if he or she should die prior to attaining said age) the trustee shall pay to or use for the benefit of said beneficiary as much of the net income derived from said share as the trustee may deem necessary or proper for the comfortable maintenance, support, education and general welfare of said beneficiary, taking into consideration any other resources available to said beneficiary of which the trustee has actual knowledge. Any net income not so paid to or used for the benefit of said beneficiary shall be added to the principal of said share at such times as the trustee may deem appropriate; provided, however, that at the time said beneficiary attains the age of twenty-one (21) years any collected but undistributed net income shall immediately be added to the principal of said share, and any accrued but uncollected net income shall be treated as income derived from said share after said beneficiary attains the age of twenty-one (21) years.
“(3) From the time the beneficiary for whom said share is named attains the age of twenty-one (21) years (or from the time said share is to be set aside if said beneficiary has then already attained said age) until said beneficiary attains the age of forty (40) years (or until the death of said beneficiary if he or she should die prior to attaining said age) the trustee shall pay to said beneficiary, at convenient intervals but not less frequently than quarter annually, all of the net income derived from said share.”
Further provisions directed fractional parts of the principal of each share to be paid each beneficiary upon attainment of age twenty-five, thirty, and thirty-five years, with final distribution and termination of the trust at age forty. Provision was also made for disposition of the fund in event of death of either beneficiary. The trustee was authorized in its discretion to invade the principal if deemed necessary to carry out the provisions of the trust and was directed “to be liberal in its exercise of said power.” The trust agreement was made irrevocable as to appellant.
Appellant directs particular attention to the first sentence in subparagraph B(2) of the instrument directing that during the minority of each beneficiary the trustee shall pay over such amount of income as it may deem necessary for the maintenance and support of such beneficiary “talcing into consideration any other resources available to said beneficiary of which the trustee has actual knowledge.” He argues the language of the trust agreement explicitly and clearly shows it was created to provide support for the children during their minority and that it is inequitable and an abuse of discretion on the part of the trial court to require him to pay additional support money rather than look to the trust fund for such increase. He says that parties can by contract provide for the discharge of their obligation for support of their minor children.
Appellant’s position cannot be sustained.
Any provision in a separation agreement entered into by the parties for the custody, support or education of their minor children remains subject to the control of the district court (K. S. A. 1968 Supp. 60-1610 [d]). Subsequent to the decree in a divorce action, the district court, under K. S. A. 1968 Supp. 60-1610 (a), has a continuing discretion to modify or change an order therein made for support of minor children when facts and circumstances are shown which make such change or modification proper. These statutes accord with long prevailing doctrine that parents cannot, by agreement between themselves, deprive the courts of their inherent power to make such provision for the support of their minor children as the latter’s welfare may require. Upon appeal a ruling of the district court increasing child support will not be disturbed unless there is a clear showing of abuse of discretion (Grunder v. Grunder, 186 Kan. 766, 352 P. 2d 1067; Herzmark v. Herzmark, 199 Kan. 48, 427 P. 2d 465). In Allison v. Allison, 188 Kan. 593, 363 P. 2d 795, the holding was:
“In a divorce action, where the welfare of minor children is involved, the trial court’s power in dealing with the property of parents is necessarily very broad, and unless that power is obviously abused, its exercise will not be disturbed on appeal.” (Syl. f 4.)
The evidence before the trial court here consisted of the testimony of appellee, an officer of the trustee and a medical witness, and documents reflecting the parties’ assets, expenses and income. Appellee testified and the trial court found as a fact that the trust was established chiefly to provide the children with estates of their own and not to provide for their current support (finding No. 23). Appellee testified as to motives and considerations prompting establishment of the trust fund, at her insistence and as a part of her contractual adjustment with appellant, so as to provide an inheritance for the children. No complaint is made here on the reception of this testimony, which apparently was uncontradicted, and it is entitled to its full import on the side of the trial court’s ruling. The conclusion the trust fund was intended primarily to insure an inheritance is further buttressed by the fact that under the provisions of the trust agreement no funds were to come into it (except the nominal deposit of $100) until one of three events occurred: Appellee’s death, her remarriage, or the attainment by the youngest child of the age of twenty-one years; hence, so long as appellee remained alive and single there was nothing in the trust fund from which support could be provided for either child during its minority. By her action, and at cost to herself, appellee has so interpreted the agreement. And appellant has always made the support money payments separately and apart from the trust fund, instead of using the optional method mentioned in subparagraph B (1) of the trust indenture. On the question of administration of the fund, the trust officer did testify the trustee would take into consideration any court order for support money for the children but it is manifest the trial court correctly ruled it could not make a binding order on the trustee with respect to its discretionary distribution. The trust officer’s testimony that the trustee in determining whether to make distribution would not consider appellant’s resources was purely a legal conclusion which the trial court was at liberty to disregard in reaching its decision. Noteworthy also is the fact that, at appellee’s instance, a separate escrow account was required and established, in order to provide her security for appellant’s performance of his obligations arising from the property settlement agreement (finding No. 18). Although, being immaterial here, the terms of the escrow agreement are not included in the record before us, evidently, upon appellee’s remarriage, appellant withdrew funds from the escrow account no longer necessary to secure alimony payments and placed them in the trust fund.
If appellant’s interpretation of the purpose of the trust fund were correct, it would have been easy to have inserted in the agreement plain language to that effect. A simple statement as to purpose and a simple covenant that the funds therein must first be resorted to before any increase could be sought from appellant’s resources would have sufficed. This would have been in sharp contrast to the broad language actually used — that in making any distribution during minority the trustee should take into account “any other resources” available.
Appellant also argues the result of the trial court’s ruling is to compel him to create an estate out of his property to support minor children beyond their minority, which is prohibited. However, if that could be construed to be the effect of the order, we know of no rule making it invalid when based on an agreement entered into by the parent whose property is so taken (see Hayn v. Hayn, 162 Kan. 189, 175 P. 2d 127).
Here, the trial court made its approval of the property settlement agreement (of which the trust indenture was a part) and its initial allowance of support money subject to further order of the court and expressly retained jurisdiction for that purpose. The trial court had evidence as to the financial and social position of the parties and made specific factual findings as to expenses of the children. Appellant does not seriously contend the amount allowed was excessive either as to need or as to his ability to pay. The court found that appellee was making substantial contributions from her own resources toward the children’s support. It also made factual findings as to the intent of the parties in establishing the trust fund which findings we may not ignore. In making its order the court was primarily concerned with the welfare of the two children as shown by the evidence. Everything considered, we cannot say the court’s order was so inequitable as to amount to abuse of discretion.
The trial court also made an allowance of attorney fees for appellee’s counsel. In Herzmark v. Herzmark, supra, it was pointed out that K. S. A. 1968 Supp. 60-1610 (f) vests a trial court with wide discretion in awarding attorney fees in proceedings for the modifi cation of an order respecting the care and support of minor children. The allowance here was substantiated by evidence as to time actually spent and services rendered, and we find it was properly within the sound discretion of the trial court.
The judgment is affirmed.
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The opinion of the court was delivered by
Kaul, J.:
These two consolidated cases stem from an explosion of liquified petroleum gas (hereafter referred to as L. P. gas) in the farm home of R. C. and Charlotte Dykeman on July 31, 1963. As a result of the explosion John B. Hendrix was killed, Lester O. Garrett and R. C. Dykeman suffered personal injuries, and the Dykeman home was destroyed.
John B. Hendrix, deceased, and Garrett were employees of the Hentzen Construction Company, which specializes in the repair of fire damaged property. At the time of the explosion, Hendrix and Garrett were engaged in repairing damages to the Dykeman home caused by a previous explosion and fire. Plaintiff-appellant Geneva Hendrix is the widow and sole heir-at-law of John B. Hendrix, deceased.
Appellant-defendant Fortner (hereafter referred to as Fortner) was a distributor of L. P. gas, sold to him by defendant-appellee Phillips Petroleum Company (hereafter referred to as Phillips). Fortner was allowed to sell other brands of L. P. gas, but as a branded Phillips distributor he was required to use its product “Philgas” in ninety percent of his total sales.
Plaintiffs-appellants Garrett and Hendrix (hereafter referred to as plaintiffs or Garrett and Hendrix) commenced separate actions against Fortner, Phillips and R. C. Dykeman. During the pleading stage of the actions defendant R. C. Dykeman joined with his wife Charlotte Dykeman and filed a third party petition in each action against Fortner and Phillips, respectively. Issues were joined by the answers of Fortner and Phillips in each action and as to Dyke-mans as third party plaintiffs. At this juncture the two cases were consolidated by order of the trial court.
Hendrix and Garrett dismissed as to R. C. Dykeman. The Dykemans, as third party plaintiffs, dismissed as to Garrett and Hendrix and other parties which they had interpleaded, but retained their action against Fortner and Phillips.
Through the commendable cooperative efforts of all counsel, at a pretrial conference the case was reassigned and the parties realigned to proceed to trial as follows: Garrett, Hendrix and Dyke-mans as plaintiffs and Fortner and Phillips as defendants. At the pretrial conference the parties entered into a comprehensive stipulation as to the procedure to be followed in the trial in which the actions of Garrett and Hendrix were consolidated with that of (third party plaintiffs) Dykemans.
In this format, the cases proceeded to trial to a jury. Separate interrogatories and verdicts, as to each of the three claims, were submitted to the jury on each of the issues of liability of Fortner and Phillips to the respective plaintiffs. The issues of damages were reserved for future trial in the case of verdicts of liability. The jury found in favor of Hendrix and against Fortner but in favor of Phillips. Likewise, as to Garrett it found in favor of him and against Fortner but in favor of Phillips. As to Dykemans the jury found in their favor and against both Fortner and Phillips.
In answering special interrogatories in the Hendrix and Garrett cases the jury found Dykemans, though no longer in the cases as defendants, guilty of contributory negligence along with Fortner in causing the death of Hendrix and injuries of Garrett. The court then submitted a further question as to the contributory negligence of Dykemans in their own case. The jury was unable to answer this subsequent question.
Motions for a new trial were filed by the various parties as to each finding of the jury adverse to them. Both Garrett and Hendrix filed motions for a new trial as to Phillips, and Hendrix filed a motion for judgment notwithstanding the verdict as to Phillips. Fortner filed a motion for judgment notwithstanding the verdicts and in the alternative a motion for a new trial as to all plaintiffs. Phillips filed a motion for an order entering final judgment in its favor against Garrett and Hendrix and for judgment against Dyke-mans, or in the alternative for a mistrial or new trial as to Dykemans. The trial court overruled all motions except that it sustained the motion of Phillips for a mistrial or new trial as to Dykemans. Dyke-mans did not appeal, and as a result the issue of liability of Phillips to third party plaintiffs Dykemans is not involved in this appeal. The court also sustained the motion of Phillips for a judgment on the verdicts of the jury as to Garrett and Hendrix.
Garrett and Hendrix have appealed from the verdicts and judgments rendered in favor of Phillips. Fortner has appealed from the verdicts and judgments in favor of Garrett and Hendrix.
The appeals have been consolidated on the stipulation of the parties that a decision in one appeal controls disposition of both the Hendrix and Garrett appeals as to Phillips and, likewise, as to the appeals of Fortner from the judgments in favor of Hendrix and Garrett.
In 1958 Dykemans commenced construction of a new house on then- farm.. The house was built over a preexisting basement, and a cistern was located beneath the basement. The cistern was twenty-two feet in depth and eight to ten feet in width. It was used to store water for drinking purposes. Dykemans hauled water to fill the cistern. The cistern was filled by means of a filler pipe, which opened outside the house. The pipe opening, through which water was poured or hosed to fill the cistern, was located near the back door of the house. The pipe descended down through the ground, outside of the basement wall, then through the basement wall down through the basement floor and into the cistern.
Dykemans had purchased L. P. gas from Fortner for a period of from ten to fifteen years. The gas was used to supply a Coleman furnace and hot water heater in the house. Fortner installed the L. P. gas system at the time the house was constructed. Fortner had installed a tank and gas line on the Dykeman place prior to 1958. After Dykemans built their new house he installed a “T” at the east side of the house and ran one line into the basement, which operated the hot water heater, and another line around to the northwest side of the house, which serviced the furnace. The L. P. gas tank was owned by Dykemans.
Philgas was the trade name of the gas sold by Fortner, and was purchased by him from Phillips. Philgas was identified as propane and described as odorless in its original form. It is admittedly a dangerous commodity. For safety purposes a malodorant called mercaptan is added to the L. P. gas. The odor of mercaptan was described by various witnesses as being similar to that of rotten cabbage, rotten eggs or a dead mouse.
Early in July of 1963 Dyekmans noticed an unusual odor around the house, they described it as smelling like rotten eggs. The Dyekmans could find no cause for the odor and finally determined it might be a gas leak. Fortner was called and he came out to the Dykeman house on July 8. Fortner checked the hot water heater in the basement and found a defective part, which he replaced. Fortner testified that he pressure checked the gas line and found there was a leak. He dug down to the gas line, next to the house, where he found the leak and repaired it by replacing a short copper line.
Dykemans continued to smell the odor and, on July 13, Dykeman turned off the fuel. Mrs. Dykeman testified that Fortner came out on July 15 and it was on this occasion that Fortner dug down to the gas line and replaced the riser.
On July 21, while Dykeman was putting water through the fill pipe into the cistern, an explosion occurred, followed by a fire, which damaged the house. After this explosion Fortner replaced the entire L. P. gas line from the tank into the house.
Following the explosion and fire of July 21, the Hentzen Construction Company was engaged by Dykemans to repair the damage to the house. The new gas line was completed on July 25. After the new gas line was completed several conversations took place concerning the safety of the premises. The substance of these conversations is disputed. Mr. Dykeman testified that on July 22 Fortner told him it was safe to relight the water heater and that there was no longer any danger of gas in the cistern, as it had already burned out.
Another conversation took place on July 25 between Mrs. Dyke-man, Harold Mumma, an insurance investigator, and Fortner. Roy Thomas, brother of Mrs. Dykeman, was present during this conversation, which took place in the Dykeman kitchen. Mumma testified that he inquired of Fortner if it was safe to light the appliances and also if the cistern was safe and that Fortner replied “yes.”
On July 31 Garrett and Hendrix, employees of Hentzen, were engaged in making repairs on the Dykeman house. Garrett was a painter and was painting the basement. Hendrix, a carpenter and fellow employee, asked Garrett for assistance in getting down into the cistern in order to repair a crack in the cistern wall. Hendrix was lowered into the cistern by means of a chain hoist with the assistance of Garrett.
Garrett’s testimony is narrated as follows:
“. . . I helped him down in there and he got on his ladder and he had his little drill motor or jackhammer, or whatever it was, already anchored there and he was going to rim that crack out inside the cistern. As he picked it up to, I presume he pulled the trigger to go to work at it, that’s when the explosion, the fire happened. I do recall he picked it up and placed it like he was going to work. I don’t know if he could hear it or not. This was the last time I saw Mr. Hendrix alive.
“After this all I can recall was a swirl of fire down in the cistern then I blacked out. I didn’t hear the explosion. I didn’t know there was gas in the cistern and nobody had told me there was.”
The explosion of July 31 was much more severe than that of July 21 and the following fire entirely destroyed the Dykeman house. Witnesses for both plaintiffs and defendants agreed that both explosions were caused by L. P. gas in the cistern.
We shall first consider Fortner’s appeal from the judgments rendered against him in favor of Hendrix and Garrett. At the outset, it may be said that the issues raised by Fortner’s appeal as to Hendrix and Garrett are identical in each case.
The Hendrix and Garrett cases were submitted to the jury by the trial court on the theory that the duty owed by Fortner was one of ordinary care. Fortner claims that his duty was only to refrain from willfully injuring employees Garrett and Hendrix.
Fortner further claims, in the alternative, that if the duty owed by him was that of ordinary care then the instructions given did not properly state the law in that regard.
We shall first examine the basic question of the duty of care required of Fortner as to the injured Garrett and deceased Hendrix. The degree of duty of care between these parties depends largely upon the legal relationship between them at the time of the explosion.
Fortner was on the premises to repair the L. P. gas fine at the request of Dykemans. Hendrix and Garrett, as employees of Hentzen, were on the premises also at the request of Dykemans to repair damages sustained in the first explosion and fire.
We believe that under the facts and circumstances, shown by the record, that Fortner and Hentzen, as independent contractors employed by Dykeman to perform services for his benefit and for their financial gain, were on Dykeman s premises as his business invitees. (65 C. J. S., Negligence, § 63 [113], p. 871.)
This court has on a number of occasions dealt with the troublesome problem of defining and distinguishing the terms trespassers, licensees and invitees, as used in the law of negligence.
In Bessette v. Ernsting, 155 Kan. 540, 127 P. 2d 438, we defined the terms licensee and business visitor and held:
“A licensee is a person who is privileged to enter or remain upon land by virtue of the possessor’s consent, whether given by invitation or permission.
“A business visitor is a person who is invited or permitted to enter or remain on land in the possession of another for a purpose directly or indirectly connected with business dealings between them.” (Syl. ¶¶ 1, 2.)
The subject was most recently discussed in Graham v. Loper Electric Co., 192 Kan. 558, 389 P. 2d 750. In Graham we recognized that although the question whether a person is on property as a licensee or invitee depends on the facts and circumstances of each particular case, there are, however, some established principles which serve as a guide. In Graham we quoted with approval definitions of and distinctions between the terms trespasser, licensee and invitee, as used in negligence law, as set out in 65 C. J. S., Negligence, § 63 (26) (a), pp. 680-682, § 63 (41), pp. 715-717, and §63 ( 43) (b), pp. 722-725. Applying those principles in Graham we held:
“Where there is a mutual interest or a relationship inuring to the benefit of both the injured party and the occupier of premises, an invitation is implied and the injured party is considered a business visitor or invitee.” (Syl. ¶ 2.)
Applying what has been said to the facts in the instant cases we have no difficulty in determining that Fortner and Hentzen were on the property of Dykemans as their business invitees.
Fortner further claims, however, that even though a person may be on the premises of an owner in the status of an invitee, as to the owner, the same person may well be in a different status as to other persons upon the same premises. He claims that even though he and Hentzen were invitees, as to Dykeman, they were in the lesser status of mere licensees as to each other, since there was no mutual benefit flowing between them and thus each only owed a duty to refrain from willful injury to the other.
The mutual benefit (sometimes called economic benefit) test has been resorted to in determining whether one coming on the land of another does so as a licensee or invitee of the landowner. (See cases collected in 95 A. L. R. 2d, Anno. p. 992, § 4, p. 1009.) Where the status of the parties is established as invitees of the possessor or occupier of land, as in this case, this court has not applied the test in determining the duty of care owed by one invitee to another.
Fortner relies heavily on the case of Toomey v. Wichison Industrial Gas Co., 144 Kan. 534, 61 P. 2d 891. Toomey involved the presence of two competing natural gas distributing companies on the owner’s property for the purposes of disconnecting its gas line by one company and the installation of its line by the other. When an employee of one gas company was injured by the alleged negligence of the other, it was held the duty owed was only that of refraining from willful injury. Toomey fails to support Fortner’s position here, because the duty between invitees was not involved. The decision was based on the premise that the plaintiff’s company was on the property only as a licensee. It was stated in the opinion:
“. . . The status of plaintiff in that laundry room at the time defendant was detaching and removing its equipment was that of a licensee. Counsel for appellee do not suggest that plaintiff’s presence in the basement at the time of the accident gave him any more potent status. As such licensee the only duty of defendant towards plaintiff in the circumstances was not to willfully injure him; . . .” (pp. 538, 539.)
Since the status of invitee was not urged or considered in Toomey, the decision only determined the duty owed to a licensee.
Fortner cites the case of Birt v. Drillers Gas Co., 177 Kan. 299, 279 P. 2d 280. Here again the case turns on the proposition that the injured plaintiff was a mere licensee, rather than an invitee as to defendant Gas Company. In Birt defendant owned a right-of-way in the owner’s property, rather than being on the premises as an invitee of the owner. Plaintiff, a customer of the landowner’s grocery store, departed from the usually traveled entrance to the store, and fell into a hole on defendant Gas Company’s right-of-way. The hole was made by defendant in connection with repair work on its gas line. While the jury found plaintiff guilty of contributory negligence, it was noted in the opinion that though plaintiff may have been a business invitee, as to the landowner, she was at most a mere licensee as to the Gas Company. The existence of a licensee relationship on the facts in Birt is no authority for the establishment of a licensee relationship between Fortner and Hentzen on the facts in this case.
Fortner argues that our holding in Graham v. Loper Electric Co., supra, requires a mutuality of benefit between two business invitees of the owner in order to create a duty of ordinary care between the invitees. We are unable to find in the Graham opinion the meaning urged by Fortner.
In Graham plaintiff’s husband was an employee of an electric company engaged in construction work as a business invitee on the owner’s premises, he was injured and died as a result of negligence on the part of Loper Electric Co., also engaged in the construction work as a business invitee of the landowner. We held plaintiff’s husband was entitled to the exercise of ordinary care on the part of Loper, rejecting the argument of Loper that under the Toomey decision deceased was a licensee and as such was only entitled to the exercise of duty to refrain from willful injury on the part of Loper. In the Graham opinion it was noted that the particular work being done was to the mutual benefit of the owner Loper Electric Company and K. G. & E., employer of deceased. The point noted, however, was only incidental and did not control the decision as it was stated in the opinion:
“The liability of the appellant therefore hinges on the determination of whether or not Graham, an employee of K. G. & E., was on the premises as a business invitee.” (p. 562.)
The rule controlling the duty of care between invitees is bluntly stated in 65 C. J. S., Negligence, § 63(45):
“Duty as between invitees. Invitees owe each other the duty of ordinary care.” (p. 734.)
Two decisions of the Tenth Circuit Court of Appeals, dealing with cases arising in Oklahoma are cited in support of the rule as stated.
In Peak Drilling Co. v. Halliburton Oil Well Cement Co., 215 F. 2d 368 (10th Cir. 1954), it was stated:
“Where oil company employed independent contractor to drill oil well and employed another corporation to perform a hook-wall test, independent contractor and corporation employed to run test each owed to the other the duty to exercise ordinary care.” (Headnote f 4.)
In E. L. Farmer & Company v. Hooks, 239 F. 2d 547 (10th Cir. 1956), cert. den. 353 U. S. 911, 1 L. Ed. 2d 665, 77 S. Ct. 669, the accident involved occurred in Texas. The court noted, that in Texas the general rule is that a licensor assumes no duty toward a licensee except to refrain from causing him injury by active negligence or willful conduct, and stated:
“. . . But here both appellant and appellee were on the premises as invitees of Kerr-McGee. Appellee was not there pursuant to direction, consent, or other permissive grant of appellant. There was no relationship of licensor and licensee between them in respect to the occupancy of the premises. And there was nothing in the relationship between them which operated to narrow or limit any extent the duty resting upon appellant to exercise reasonable care under the circumstances for the safety of appellee while they were on the premises of their common employer in connection with the discharge of their respective duties. . . .” (p. 551.)
Here the evidence discloses that Fortner was on the Dykeman premises in connection with his L. P. gas installation several times in the interim between the first and second explosions. He was well aware of the presence of workmen engaged in the repair of damages caused by the first explosion and fire. An applicable statement is found in 65 C. J. S., Negligence, § 63(113):
“. . . As between two independent contractors who work on the same premises, either at the same time or one following the other, each owes to the employees of the other the same duty of exercising ordinary care as they owe to the public generally. . . .” (p.873.)
As an alternative position taken in his appeal, Fortner asserts that if he did owe a duty of ordinary care the instructions given by the trial court fell short of an adequate statement of the rules of law regarding his duty of care. His complaint, in essence, appears to be that he was entitled to a more specific definition of his duties and that the refusal of the trial court to submit his requested instructions in this regard amounted to reversible error.
In the instructions given the trial court reviewed the various acts of negligence on the part of Fortner, claimed by Garrett and Hendrix, and summarized the contentions of both defendants. The court instructed as to intervening cause, concurrent causes and proximate cause, about which there is no complaint. In Instruction No. 11 the court defined negligence in terms of ordinary care. In Instruction No. 13 negligence as lack of ordinary care was applied to Fortner. It reads:
“Negligence is the lack of ordinary care under the existing circumstances. As applied to defendant Fortner, it means the failure to do something that a reasonably careful distributor engaged in the same business would do or the doing of something by a distributor that a reasonably careful distributor engaged in the same business would not do. The degree of care must be equal to the foreseeable danger reasonably to be anticipated measured by all of the facts and circumstances.”
Essentially, Fortners defenses were (1) the explosion was not caused by willful conduct and (2) he had no duty to warn Garrett and Hendrix. The first was removed as an issue in the case when the trial court ruled the duty owed was that of ordinary care. As to his second defense, Fortner appears to take the position that his only duty was to warn Dylcemans of the possibility of gas in the cistern; that this duty was discharged either by his warning to Dylcemans or that Dylcemans already had knowledge from Deputy State Fire Marshal Hickman of the danger which absolved Fortner. As to this point, as we have noted, the evidence was in sharp conflict. The general and special verdicts of the jury must be construed as resolving the conflicting testimony in favor of Garrett and Hendrix.
The liability for negligence of a distributor of liquid gas is stated in 26 Am. Jur. 2d, Electricity, Gas, and Steam, §246, as follows:
“However, although a distributor of liquid gas is not ordinarily charged with the duty of inspecting or maintaining privately owned pipes or appliances in the buildings or on the property of its customers, if it undertakes to inspect pipes and installations on the property of the customer or to service or repair leales or defects therein, it will be liable for its negligence in so doing. . . .” (p. 455.)
See, also, 38 C. J. S., Gas § 42(d), pp. 735, 738; Vol. 2 Restatement of Torts (2nd), §§ 388, 389, pp. 300, 311; Miller v. Wichita Gas Co., 139 Kan. 729, 33 P. 2d 130; Carlisle v. Union Public Ser. Co., 137 Kan. 636, 21 P. 2d 395, and Atkinson v. Wichita Gas Co., 136 Kan. 854, 18 P. 2d 127.
Instructions are to be considered as a whole and in their entirety and each instruction is to be considered with all other instructions in the case. (Thompson v. Norman, 198 Kan. 436, 424 P. 2d 593, and Schroeder v. Richardson, 196 Kan. 363, 411 P. 2d 670.)
Instruction No. 11, in essence, charged Fortner with the standard o£ care required of a reasonably careful distributor. Other instructions relating to causation, negligence in general and setting out contentions of the parties considered with No. 11, fully and fairly covered the law of the case and the theories and contentions of the parties in the Garrett and Hendrix cases.
We turn next to the appeals of Garrett and Hendrix from the verdicts and judgments in favor of Phillips.
Plaintiffs first contend that by virtue of the jury’s answers to special interrogatories 3 and 4 in the Dykeman case they are entitled to judgment against Phillips or in the alternative they should be granted a new trial.
In the Dykeman case the jury rendered a general verdict in favor of Dykemans against both Fortner and Phillips- As to special interrogatories in the Dykeman case the journal entry recites as follows:
“In the case of plaintiffs, R. C. Dylceman and Charlotte Dykeman:
“1. Do you find the defendant, Marion Fortner, guilty of any act or acts of negligence which were a proximate cause of plaintiffs, Dykemans, injuries and damages?
“Answer: Yes.
“2. If your answer to the above question is yes, state the specific act or acts of negligence.
“Answer: We feel Mr. Fortner was negligent because he did not notify Phillips of the first explosion and because of his lack of knowledge.
“3. Do you find the defendant, Phillips Petroleum Company, guilty of any act or acts of negligence which were a proximate cause of the Dykemans injuries and loss?
“Answer: Yes.
“4. If your answer to the above question is yes, state the specific act or acts of negligence.
“Answer: We do not feel that they gave proper instruction and training in accordance with Number 16 of the Court Instructions for a distributor of LP gas.
“After discussion between court, counsel and the jury, a further special question was submitted by the court as follows:
“Do you find the Dykemans guilty of negligence which contributed to their own injury and damage?
“As revealed by the record this question was never answered. The objections, court’s ruling and proceedings concerning this special question appear in the record made at the time.”
Plaintiffs claim that the findings of negligence on the part of Phillips as to Dykemans in interrogatories 3 and 4 are inconsistent with the findings of no negligence on the part of Phillips in interrogatory 3 in each of their cases. Plaintiffs argue the findings should be reconciled with each other and with the general verdicts if possible, but if not, either a new trial should be granted or judgment entered on the special findings.
The principles proposed by plaintiffs are sound but the applicability thereof to the question here is not at issue. The present posture of the Dykeman case is as though it had never been tried. It is a nullity with respect to any inconsistency between findings therein and those made in plaintiffs’ cases.
The record discloses that the further special question was submitted in the Dykeman case because of the jury’s answers in plaintiffs’ cases indicating contributory negligence on the part of Dyke-mans; The jury was unable to agree on an answer and was discharged. The trial court sustained a motion of Phillips for a new trial or mistrial. The order was not appealed from.
A mistrial is a nugatory trial and is equivalent to no trial. (Vilander v. Hawkinson, 183 Kan. 214, 326 P. 2d 273; 39 Am. Jur., New Trial, § 2, pp. 33, 34; 58 C. J. S., Mistrial, pp. 833, 834.)
Plaintiffs next claim the trial court erred in failing to rule as a matter of law that under the evidence Phillips was negligent in its failure to adequately train Fortner. They argue that under Fortner’s own testimony Phillips had failed to inform him as to the propensities of L. P. gas, in particular that malodorant would be filtered out by soil in case of underground leak and that he should have been informed as to gas scopes and their use. Plaintiffs assert that Phillips was negligent as a matter of law in failing to give Fortner training or instructions in these matters.
Under the evidence in this case the question framed was one of fact for determination by the jury under proper instructions.
Fortner’s testimony discloses that he had been in the L. P. gas business for many years, having joined his father in the business in 1947. He knew that L. P. gas is heavier than air; that it would seek out low pockets in the ground. He did not know that malodorant in L. P. gas would be filtered out by the ground but he testified he did know there was a disagreement between experts on the subject. Although he stated in a pretrial deposition that he had never heard of a gas scope, he testified at the trial that he did know of it and that he told Dykemans to have the fire marshal bring his scope out to their farm. He also testified that he received pamphlets or letters all the time from Phillips; he was familiar with Kansas rules and regulations for the L. P. gas industry and had in his possession the National L. P. gas laws and regulations. Fortner admitted that he had been instructed to inform Phillips of any explosion of fire but that he had failed to inform Phillips of the first Dykeman explosion.
Fortner further testified that Phillips had nothing to do with his activities in the sale of appliances and installation and repair of fixtures and gas lines. He testified:
“. . . Besides delivering gas we sold tanks and furnaces and hot water heaters and installed them. We laid lines. Phillips had nothing to- do with that part of our work. We didn’t buy from them, and I started with Phillips in 1954. . . .”
In Instruction No. 16 the court instructed the jury as to the duty of Phillips with respect to Fortner. It reads as follows:
“You are instructed that defendant Phillips had a duty to instruct Fortner or ascertain that he had been instructed as to the proceedings to be followed in the event of a leak in an L. P. gas system or explosion.
“In this connection it is not required that Fortner be educated or instructed as an expert in the field. Phillips has the duty to instruct or ascertain that Fortner has been instructed to the extent that he have such knowledge as is reasonable under the circumstances to give him information sufficient to take appropriate action and give appropriate advice to his customer. The violation of such duty is negligence.
“Phillips, once having fulfilled the above duty, cannot be held liable for Fortner’s failure to take advantage of, use or impart to others such instruction.”
Phillips objected to the instruction as placing too great a responsibility upon it. We believe the instruction fairly states the duty imposed under the facts and circumstances of this case. A manufacturer of L. P. gas is under a duty to instruct a distributor or to ascertain that he has been instructed in the use and handling of its commodities. (26 Am. Jur. 2d., Electricity, Gas and Steam, §244, p. 453; Hulke v. International Mfg. Co., 14 Ill. App. 2d 5, 142 N. E. 2d 717.)
Plaintiffs claim the trial court erred in ruling as a matter of law that there was no issue of fact as to malodorization of the L. P. gas. Plaintiffs concede the evidence clearly showed that the gas in the Dykeman tank was malodorized. They appear to claim that, although everyone smelled the gas at the tank, some witnesses did not smell gas in the basement and, therefore, the gas must have lost its odor, thus creating an issue for the jury. We are unable to follow plaintiffs’ reasoning in this regard. All parties agree that malodorant is absorbed by the passing of gas through the ground. Plaintiffs’ expert, Dr. Fred Kurata, testified that the malodorant might have been filtered out by soil but he did not describe any way to malodorize the gas so that it could not be filtered out in case of an underground leak.
Eldon Means, a consulting chemist, testified as an expert for both plaintiffs and defendants. He agreed with Dr. Kurata that mercaptan used as a gas malodorant would be filtered out of the gas when exposed to soil. Means did propose a theory that in the case of a prolonged exposure, a point of equilibrium or saturation of the soil would be reached, following which the malodorant would remain with the gas as it proceeded in its course of escape. Neither Means nor Kurata, nor any other witness, suggested any malodorization which would resist filtering out by soil exposure. Nor was any more efficient system of malodorization suggested. Since malodorant in the first instance is conceded, the filtering process was not disputed and no better means of malodorization indicated by any of the witnesses, there was no issue of fact framed by the evidence in this connection; and the trial court correctly removed the question from the jury. Failure to do an act which is physically impossible is not negligence. (Gibbs v. Mikesell, 183 Kan. 123, 325 P. 2d 359.)
The issue of odorization of L. P. gas was removed from the case by a directed verdict of the trial court and affirmed on appeal in Scalzo v. Marsh, 13 Wis. (2d) 126, 108 N. W. 2d 163, where it was stated:
“. . . Not only did the evidence establish that each of the 13 tank cars of Skelgas, from one of which the gas that caused the explosion had been drawn, had been odorized with the proper amount of such chemical, but the expert witness, Statz, who tested the gas remaining in such two cylinders after the explosion, testified that such gas had been properly odorized. Any testimony of a casual observer, to the effect he did not smell gas just prior to the explosion, is not sufficient to raise a jury issue as to the odorization of the gas where the same has been verified conclusively as a scientific fact by proper expert testimony.” (p. 150.)
There is no issue framed as to malodorization by the evidence in this record.
Plaintiffs next assert the trial court erred in ruling as a matter of law that Fortner was not the agent of Phillips. In their limited argument on this point plaintiffs appear to contend, in essence, that agency must be inferred from Fortner’s position as a distributor of Phillips products.
As a branded distributor Fortner was entitled to, and did use, Phillips’ trademarks and decals on his uniform and equipment. Phillips made no arrangements to supply a distributor with decals, stationery or bills. It was left up to the distributor to purchase these items from manufacturers and printers. Phillips did have a cooperative advertising agreement with Fortner to the extent that Phillips reimbursed Fortner one-half the cost of advertising, not exceeding a limited amount, when Fortner advertised Phillips’ products. Under the provisions of his distributor’s contract, Fortner was required to check gas for malodorant on delivery from Phillips. He was instructed to report any explosion or fire.
The evidence is undisputed that Phillips had nothing to do with any repair or installation work, if such were undertaken by a distributor. In this jurisdiction the controlling test in determining the existence of agency, so that the doctrine of respondeat superior would be applicable, is the right to control the purported servant. Application of the rule to facts quite similar to those here is found in Greiving v. LaPlante, 156 Kan. 196, 131 P. 2d 898. Greiving leased a Phillips gasoline filling station and sold Phillips products. In considering an assertion of agency we stated:
“. . . the mere fact of ownership of property or that goods marketed under the trade name of such owner are advertised and sold there is insufficient to show that the one who sells the goods is the agent or employee of such owner. (2 C.J.S. 1030; 32 Am. Jur. 537; Tice v. Crowder, 119 Kan. 494, 240 Pac. 964; Stilwell v. Faith, 142 Kan. 730, 732, 52 P. 2d 635.) The trial court erred in overruling the Phillips Petroleum Company’s demurrer to the evidence.” (p. 198.)
The determination of what constitutes agency, and whether there is any competent evidence reasonably tending to prove its existence, is a question of law. (Shugar v. Antrim, 177 Kan. 70, 276 P. 2d 372, and Greep v. Bruns, 160 Kan. 48, 159 P. 2d 803.)
There is no showing in the evidence that Phillips'reserved the right to control the physical manner in which work was done by Fortner. The undisputed evidence is that Phillips had nothing to do with installation or repair work, such as Fortner was engaged in at the Dykeman place. Nor does the evidence here establish liability on the part of Phillips on the theory of an attempt to contract away a nondelegable duty. Application of this rule was considered in Reilly v. Highman, 185 Kan. 537, 345 P. 2d 652, where we said:
“. . . Stated another way, intrinsic danger in an undertaking is one which inheres in the performance of the contract and results directly from the work to be done — not from the collateral negligence of the contractor. . . .” (p. 541.)
In view of what has been said we hold the evidence failed to frame an issue of fact with respect to the agency of Fortner, therefore, the trial court’s ruling in this regard was correct.
At this juncture we direct our attention to further contentions relating to the point under consideration. Plaintiffs not only seek to impose liability on Phillips, via the agency of Fortner, but they contend in the alternative that, even though Fortner was not an agent, the work being done was so dangerous that Phillips is liable for Fortner’s conduct, regardless of their relationship. They argue that Phillips had a duty to advise and instruct the ultimate consumer of the dangerous propensities of L. P. gas.
Plaintiffs rely primarily on Hulke v. International Mfg. Co., supra, where Skelly Oil Company and its distributor were held liable for personal injuries suffered by Hulke resulting from an explosion of L. P. gas, manufactured and sold by Skelly under the trade name of Skelgas. Hulke, a workman on a construction job of his employer, was injured when he attempted to ignite a salamander space heater used to prevent a newly poured concrete wall from freezing. Hulke observed the space heater had “gone out” and when he attempted to relight it the explosion occurred. Fuel was supplied to the space heated by a portable “Skelgas” cylinder to be returned to Skelly within six months from the date of delivery. The explosion was caused by the lack of an automatic cutoff valve, thus permitting gas to accumulate when the flame went out.
In Hulke the negligence of the distributor, for which Skelly was held liable, involved the installation of a cylinder of “Skelgas” owned by Skelly to a heater that did not have an automatic shutoff device. The negligence was directly related to the distributor’s function as a “Skelgas” distributor.
The negligent conduct in the instant case occurred in Fortner’s independent undertaking to repair the Dykeman gas line, a service neither directly nor indirectly required by Phillips or directly related to his function as a Philgas dealer. Under these circumstances, Phillips is not liable for the collateral negligence of Fortner. (Reilly v. Highman, supra.)
Unlike the process in Hulke, in this case Phillips sold and delivered L. P. gas in bulk to Fortner. The gas was not delivered to the customer in a Phillips container. Fortner stored the gas in his tanks and delivered it to the tanks of customers when sold. As the court instructed, it was the duty of Phillips to instruct or ascertain that Fortner had been instructed to the extent that he have reasonable knowledge under the circumstances, including the ability to give appropriate advice to customers. Since the first explosion was not reported to Phillips by Fortner the duty of Phillips on receipt of such knowledge is not a question in this appeal.
We have examined plaintiffs’ requested instructions and their complaints as to the instructions given. It will suffice to say that under the facts and circumstances shown in the record, we believe the jury was fully apprised of the duty of Phillips under Instruction No. 16 read together with the other instructions of the court. Instructions to a jury are to be considered as a whole and in their entirety, and each instruction is to be considered in connection with all other instructions in the case. (Thompson v. Norman, supra, and Schroeder v. Richardson, supra.)
Plaintiffs next claim error in the trial court’s refusal to allow plaintiffs to introduce evidence of practices in the LPG Industry. Plaintiffs proffered the testimony of a Mr. Cheatum for the alleged purpose of proving a standard for training programs in the industry. The proffer was not included in the record on appeal. However, a transcript thereof has been submitted on stipulation of the parties.
The record on appeal does not detail the background of plaintiffs’ proffer nor does the transcript received by stipulation reflect the precise qualifications of Cheatum as an expert in this regard.
The most that can be gleaned from the transcript of Cheatum’s proffered testimony is that he claimed to know that one and possibly two companies in the industry provided training programs. Cheatum had attended a training program of one company but he had never attended a class for employees in handling gas after it had escaped. On cross-examination it was shown that Cheatum’s knowledge of the extent of training programs, by companies in the industry, was very limited. The fact that there were industry standards in this regard was not established, nor did Cheatum attempt to say what those standards should have been or whether they did, or did not, include training as to employees’ conduct after an explosion. Under such circumstances the trial court’s rejection cannot be said to amount to reversible error. (Huddleston v. Clark, 186 Kan. 209, 349 P. 2d 888.)
Plaintiffs argue the trial court erred in submitting special interrogatories to the jury and especially in giving separate interrogatories as to each of their claims. It must be conceded the submission of three sets of interrogatories created a considerable undertaking for the jury. However, we are not inclined to agree with plaintiffs that the jury was confused by the interrogatories, though the language used by the jury in their answers was not as specific or accurate as it might have been, nevertheless, it indicates an understanding of the issues. The present jury was simply unable to agree as to contributory negligence on the part of Dykemans with respect to their claim.
In any event, under K. S. A. 60-249 (b) submission of special interrogatories is discretionary with the trial court judge, (Thompson v. Norman, supra) included therein is discretionary supervision of the form and nature thereof. (Albin v. Munsell, 189 Kan. 304, 369 P. 2d 323.)
Finding no error shown the judgments are affirmed. | [
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|
The opinion of the court was delivered by
Price, C. J.:
These actions — consolidated in the court below— were to enjoin the City of Wichita from levying and collecting special asessments against lands owned by plaintiffs — such assessments arising out of the construction of a sewer.
Judgment was for defendant city, and plaintiff landowners have appealed.
No procedural problems are involved. As we view the case the basic question concerns the factors (or lack thereof) taken into consideration by the city-appointed appraisers in fixing the values of plaintiffs’ lands.
The applicable statute (K. S. A. 12-608) under which the city proceeded, reads in part—
“As soon as the cost of such improvement is determined, the governing body shall determine and assess to each lot or parcel of ground liable for such special assessment the amount to be paid thereon, which amount shall be determined by the assessed value of the lots and pieces of land without regard to the buildings or improvements thereon, which value shall be ascertained by three disinterested appraisers appointed by the mayor and confirmed by the council or commission.”
Plaintiff Strickland owned a tract of 58 acres of farm land in the area involved. For general tax purposes it was valued at approximately $12,000.00, and was used exclusively for farming purposes. Its actual value was about $600.00 per acre. The city appraisers valued it at $209,065.00 — which resulted in a special assessment of $49,033.48.
Plaintiff Schramm owned a tract of 57 acres of farm land in the area involved. For general tax purposes it was valued at approximately $11,000.00, and was used exclusively for farming purposes. Its actual value was about $600.00 per acre. The city appraisers valued it at $224,630.00 — which resulted in a special asessment of $52,686.20.
All of the lands in the large area involved had been zoned— ranging from “AA Single Family” to “F Heavy Industrial”.
Plaintiffs’ tracts, together with a number of others — were included in the portion zoned “heavy industrial”.
As will be shown later, the appraisers applied a per square foot price based on zoning.
Plaintiffs then brought these actions — contending the appraisal so based was incorrect and unrealistic, that it was made without regard to the value of their lands as compared to adjacent lands within the same zoning, and that such appraisal — based solely upon mathematical computation — resulted in an unreasonable, arbitrary and grossly excessive assessment — all of which entitled them to injunctive relief.
The pretrial order — among other matters — included the following question for determination:
“2. (b) Is appraisement based upon zoning a proper measure for assessment without regard to land use?”
There was no material dispute in the evidence relating to actual land values. As earlier stated — the underlying question concerns the factors — or lack of them — taken into consideration by the appraisers in fixing values for purposes of the special assessment.
The method and procedure used by the appraisers can best be shown by quoting portions of the testimony — on both direct and cross-examination — of the witness Arnold (one of the appraisers) as abstracted in the Record on Appeal:
. . He further testified that in making appraisals, he usually took into consideration location, topography and environment, trafficways, streets and the foregoing covered the matters considered in this type of appraisal because this type of appraisal excluded any type of improvement. That in this type of appraisal they were trying to equalize land values by zoning classifications; that they were not trying to determine a fair market value or a market value of the property or any specific property within the benefit district; that the figure used was an arbitrary figure used in trying to equalize the value.
“The witness testified that each piece of property was figured for square footage by the City Engineer and that the figures were accepted as correct by the appraisers. He further testified that the panel of appraisers applied a per square foot price based on zoning to the square footage in the various plots, tracts of land and railroad property; that they arrived at the figure to be applied to each zoning so as to get uniformity, to arrive at a uniform value and that they applied in each zone a definite per square foot value; that this was done in the whole benefit district and that the whole purpose of their appraisal was to be sure that each piece of property in a particular type of zoning paid the same per square foot value as did all the other property in that particular type of zoning. The witness stated that it was his opinion, as an appraiser, that the whole area zoned “heavy industrial” was not too remote to be developed in the foreseeable future. That they, the appraisers took location of property into consideration but that they still applied the same per square footage price to all of the property in a particular zone in spite of differences of location.
“The witness testified that he had never read K. S. A. 12-608 under which he was appointed and acted and that nobody had pointed out his duties under that statute, that his impression was that they were to arrive at an equitable value of the property assigned to them according to zoning and classifications and the highest, best use. The value arrived at was for uniformity in establishing evaluation.
“That his idea was that they were to arrive at a value without reference to improvements; that it was not a fair market value but a value that the appraisers to arrive at to equalize the value according to zoning classifications; that when they zoned tire property, the fifty acres, belonging to one of these plaintiffs at $200,000 that they did not intend that they thought the property was worth $200,000; that the figures could be anything just so we get proportion of the zoning; that the word “value” meant nothing; that it was merely part of a mathematical formula that they were working out.
“. . . that uniformity is what they were seeking to achieve and that in the witness’ opinion and judgment as an appraiser, considering the multitude and varieties of environmental factors that zoning was as even a measure as they could devise to relate to land values.
“The witness testified on re-direct examination that it did not matter what figures were used as long as they were uniform in proportion to the zoning classifications;.....”
There was evidence that land owned by two existing heavy industrial users was worth $1,500.00 and $3,500.00 per acre.
The formula adopted by the appraisers and applied to the entire area, was as follows:
Valuation per front foot Valuation
based on depth per
of 150 feet Square foot
“AA” Zoning (Single Family) ............ $6.00 $0.04
“A” Zoning (Two-Family Dwellings) ...... 6.00 .04
“RB” Zoning (Four-Family Dwellings) .... 8.00 .0533
“B” Zoning (Multiple-Family Dwellings) .... 15.00 .10
“BB” Zoning (Offices) ................... 20.00 .1333
“LC” Zoning (Light Commercial) ......... 25.00 .1667
“C” Zoning (Commercial) ................ 50.00 .3333
“D” Zoning (Central Business District) ...... Variable
“E” Zoning (Light Industrial) .............. 15.00 .10
“F” Zoning (Heavy Industrial) ............ 15.00 .10
In its findings of fact the court found the values and assessments placed on plaintiffs’ lands to be as related earlier in this opinion.
The court further found that the use of zoning as a measure of value was utilized by the appraisers to equalize values, and that the value of each parcel was determined according to zoning and the rate was applied and values were determined according to the square footage contained in each such parcel, and that thereafter the total costs were used as a basis of arriving at a factor, and from this factor the square footage in each parcel was assessed its proportionate share of the cost of construction.
The court’s conclusions of law were for the most part general statements of law pertaining to the levy of special assessments, the presumptions of validity surrounding such proceedings, and the power of courts to interfere with the administrative process — concerning which no complaint is made.
In addition, the court held—
“Tenth: Zoning is a reasonable classification upon which to project land values and assess benefits to individual property owners.”
Injunctive relief was denied and judgment entered for the city. This appeal followed.
Although the brief of plaintiffs contains numerous statements of points — their contentions actually narrow down to the one main point — that the “appraisal” was based solely on zoning without regard to actual land values — all of which resulted in such an unjust and arbitrary assessment as to entitle them to injunctive relief.
The statute (K. S. A. 12-608) provides that the values are to be determined without regard to the buildings or improvements— and it appears the appraisers followed that mandate. Concededly, zoning is a factor to be considered in arriving at value in a matter of this kind — but it is not the only one. The evidence is undisputed that other lands in the same zoning were worth $1,500.00 and $3,500.00 per acre, and yet those lands were valued by the appraisers on the same square-footage basis as the lands of plaintiffs —which, under the evidence, were worth approximately $600.00 per acre.
The case of Mullins v. City of El Dorado, 200 Kan. 336, 436 P. 2d 837, is relied on by the city in support of the judgment. We believe the general statements of law contained in the syllabus of that case are correct — and that under the facts of that case were correctly applied. It is to be borne in mind, however, that in the Mullins case the appraisers did not arrive at values based solely on zoning — as was done here. There is another distinguishing feature —and we quote from page 346 of the opinion—
“There was no evidence, however, that those portions of the tracts lying within the districts were other than comparable in value. One of the sewer district appraisers testified, We developed a front foot valuation for this ground as it was all fairly comparable.’ ”
To sum up — while it appears the appraisers here gave “lip service” to other factors such as location, topography and the like— it is clear they ended up by basing values solely on zoning— the end result being to saddle plaintiffs’ lands with an unreasonable and arbitrary assessment. For this reason we believe the trial court erred in denying injunctive relief.
The judgment is reversed. | [
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Atcheson, J.:
The Kansas Attorney General has appealed a question reserved from the unsuccessful criminal prosecution of Defendant Troy James Cooper for possession of marijuana he lawfully obtained as a resident of Colorado for medicinal use. The Ellsworth County District Court acquitted Cooper based on the Privileges or Immunities Clause of the Fourteenth Amendment to the United States Constitution. The question reserved, not surprisingly, is essentially this: Does the Privileges or Immunities Clause of the Fourteenth Amendment preclude Kansas from enforcing its statutes criminalizing the possession of marijuana against a Colorado resident in this state with marijuana lawfully obtained under the laws of that state? Based on what the Attorney General has presented, the answer must be in the negative. The answer, however, is a narrow one and has nothing to say about other constitutional grounds that might bar such a prosecution.
Colorado permits its residents to lawfully obtain and possess limited amounts of marijuana for medical use with a prescription from a physician. Colo. Const. Art. 18, § 14. The criminal case against Cooper was submitted to tire district court on stipulated facts. As a resident of Colorado, Cooper lawfully obtained medical marijuana there. Cooper came to Kansas with his medical marijuana and intended to stay here for several weeks visiting family and friends before returning to Colorado. A law enforcement officer stopped Cooper in Ellsworth County and found him to have the prescribed medical marijuana. The State charged Cooper with simple possession of marijuana, a misdemeanor, in violation of K.S.A. 2011 Supp. 21-36a06. The district court acquitted Cooper on the grounds the prosecution contravened protections afforded him under the Privileges or Immunities Clause of the Fourteenth Amendment and impermissibly interfered with his constitutional right to interstate travel.
The Attorney General has appealed under K.S.A. 22-3602(b)(3), allowing the prosecution to seek review of “a question reserved.” An appellate court should address a question reserved only if the issue is “of statewide interest” bearing on “the correct and uniform administration of criminal law.” State v. Berreth, 294 Kan. 98, 121, 273 P.3d 752 (2012); State v. Finch, 291 Kan. 665, Syl. ¶ 1, 244 P.3d 673 (2011). Conversely, an appellate court should not proceed if the State’s purpose simply appears to be demonstrating that the trial judge made a mistaken ruling. Berreth, 294 Kan. at 121. An appellate decision responding to a question reserved does not affect the named defendant because the process presumes the underlying case to have been concluded. 294 Kan. at 124-25.
We suppose the question fits within the framework for a proper question reserved, although tire contrary supposition could be well debated. The Attorney General does not indicate that individuals are regularly prosecuted in Kansas for possession of medical marijuana or, more particularly, that those prosecutions have been routinely thwarted by arguments based on the Privileges or Immunities Clause. The State submits this is a question of first impression, meaning it is one of a land. Colorado, however, has permitted possession of marijuana for medical treatment since 2000. See People v. Clen denin, 232 P.3d 210, 215 (Colo. App. 2009). So the particular issue hasn’t arisen in tire past dozen years. But legalized medical marijuana is becoming more prevalent. On November 6, 2012, Massachusetts voters approved a ballot referendum allowing medical marijuana. www.cbsnews.com/8301-505245_162-57546629/mass-oks-medical-marijuana-but-questions-remain/ (accessed November 14,2012). According to one clearinghouse, 18 states and the District of Columbia have authorized die use of marijuana for medical purposes. See medicalmarijuana.procon.org/view.resource.php ?resourceID?00881 (accessed November 14, 2012). As more states permit the use of medical marijuana, more people may be travelling through Kansas with their medication. That at least suggests the question could be of some broad interest.
We also venture forth with some trepidation given the vehicle provided in the question reserved process and the appellate briefing in this case. Questions reserved come to the appellate courts in an atypical way basically at odds with the adversarial adjudicative process and the benefits afforded through that process in resolving contested legal issues. The adversarial system rests, in part, on the notion that competing arguments from opposing sides will define and clarify the court’s resolution of the dispute. See United States v. Cronic, 466 U.S. 648, 656, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984) (“ ‘The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free.’ ”) (quoting Herring v. New York, 422 U.S. 853, 862, 95 S. Ct. 2550, 45 L. Ed. 2d 593 [1975]); GTE Sylvania, Inc. v. Consumers Union, 445 U.S. 375, 382-83, 100 S. Ct. 1194, 63 L. Ed. 2d 467 (1980) (“The clash of adverse parties ‘ “sharpens the presentation of issues upon which the court so largely depends for illumination of difficult . . . questions.” ’ ”). But in presenting a question reserved, die State acts in a case that has concluded favorably to a criminal defendant. So that defendant has little or no incentive to continue the legal debate. Commonly, only the State presents argument to the appellate court on a question reserved. That is true here. Cooper has neither appeared nor filed a brief in this court. We, therefore, have no counterargument to test the State’s' thesis or authority.
The State argues that the Privileges or Immunities Clause protects only federal rights and, therefore, does not prohibit law enforcement officers from applying tiiis state’s statutes criminalizing possession of marijuana against persons within the borders of Kansas even though their marijuana may have been lawfully obtained under another state’s laws. The State has gone to some pains in its briefing to establish that the federal government has not carved out an exception to its criminal statutes for the use of medical marijuana. We acknowledge that proposition in the absence of any contraiy presentation.
The State principally relies on the United States Supreme Court’s decision in Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 79, 21 L. Ed. 394 (1872). The Slaughter-House Cases majority held that the Privileges or Immunities Clause of the Fourteenth Amendment protects only certain federal rights against state encroachment. Slaughter-House Cases, 83 U.S. at 74, 79 (Privileges or Immunities Clause extends no further than rights that “owe their existence to the Federal government, its National character, its Constitution, or its laws”). The Slaughter-House Cases decision has since been commonly construed as confining the Privileges or Immunities Clause to a narrow set of federal rights, not even including those contained in the Bill of Rights. See McDonald v. Chicago, 561 U.S. 742, 130 S. Ct. 3020, 3028-31, 177 L. Ed. 2d 894 (2010); National Rifle Ass’n of Amer. v. City of Chicago, 567 F.3d 856, 857 (7th Cir. 2009) (Privileges or Immunities Clause does not apply the Bill of Rights to the states), rev. sub nom McDonald, 130 S. Ct. 3020; Newsom, Setting Incorporationism Straight: A Reinterpretation of the Slaughter House Cases, 109 Yale L.J. 643, 657-58 (January 2000). In turn, Slaughter-House Cases necessarily supports the view that the Clause does not protect rights grounded in state law. McDonald, 130 S. Ct. at 3028. The Slaughter-House Cases decision has been much criticized. The McDonald Court noted that “many legal scholars dispute the correctness of the narrow Slaughter-House interpretation” of the Clause. 130 S. Ct. at 3029-30 (citing authority); see Benedict, Slaughterhouse Cases, The Oxford Guide to the Supreme Court of the United States, 924 (Hall, editor, 2d ed. 2005); Lurie, Reflections on Justice Samuel F. Miller and the Slaughter-House Cases, 1 N.Y.U. J. L. & Liberty 355, 355-56 (2005).
The holding in Slaughter House Cases has not been overruled, according to the State. The Court’s decision in McDonald confirms as much. The McDonald Court rejected an opportunity to reconsider or overrule Slaughter House Cases and simply discarded it as unnecessary to the disputed issues in that case. 130 S. Ct. at 3030-31. Accordingly, the Privileges or Immunities Clause applies only to certain federal rights—however long, short, or obscure the list of the particular rights.
Based on the State’s briefing, we respond to tire question reserved this way: The Privilege or Immunities Clause of the Fourteenth Amendment does not bar the enforcement of Kansas criminal statutes prohibiting possession of marijuana against someone traveling through or staying temporarily in this state even though that individual possesses the marijuana in conformity with another state’s law allowing its use and possession for medical purposes. In those circumstances, the right to lawfully possess the marijuana rests on state law and, therefore, is outside the scope of the Clause.
As the State mentions in its brief, citizens have a federal constitutional right to interstate travel that may not be unreasonably burdened by state law or local regulation. Shapiro v. Thompson, 394 U.S. 618, 629-30, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969). That right has at least three components: (1) a citizen of one state may enter and leave another state; (2) a citizen of one state must “be treated as a welcome visitor rather than an unfriendly alien when temporarily” in another state; and (3) one who elects to travel to and become a resident of a state must be “treated like other citizens of that state.” Saenz v. Roe, 526 U.S. 489, 119 S. Ct. 1518, 143 L. Ed. 2d 689 (1999). The Saenz Court held that the third component of the right to travel is constitutionally protected by the Privileges or Immunities Clause, since it was expressly identified in Slaughter-House Cases, 83 U.S. at 80. Saenz, 526 U.S. at 503-04. Whatever the scope of that aspect of the constitutional right to travel, it was factually inapposite in Cooper’s case. Based on the stipulated facts, he indisputably intended to be in Kansas only briefly. In turn, the question reserved does not embrace the right of a citizen to travel to and become a permanent resident of Kansas. And, therefore, our response to the question reserved doesn’t encompass that right. To the extent the district court might have relied on that component of the right to travel in ruling for Cooper, its reliance would have been misplaced based on the facts. Addressing a factual error of that type falls outside the proper purpose for entertaining a question reserved.
The State does not otherwise discuss the right to travel or present authority extending beyond Saenz. The State does cite a portion of Doe v. Miller, 405 F.3d 700, 712-13 (8th Cir. 2005), that simply paraphrases tire Saenz Court’s discussion of the right to travel. In Saenz, the Court declined to identify the specific constitutional source of tire first component of the right to travel and placed the second outside the Privileges or Immunities Clause of the Fourteenth Amendment. 526 U.S. at 501-02. We, therefore, have no need to comment on those aspects of the constitutional right to travel in responding to the question reserved. We likewise express no opinion on other constitutional rights or protections that conceivably might afford a defense to a person prosecuted under the Kansas Criminal Code for possessing marijuana obtained legally through another state’s laws permitting its use as medication.
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Standridge, J.:
Brandon Castleberry appeals from convictions against him for obstruction of official duty, distribution of methamphetamine, unlawful use of a communication facility to arrange a drug sale, failure to affix a drug tax stamp, and fleeing or attempting to elude a police officer. For the reasons stated below, we affirm each of Castleberry’s convictions.
Facts
On June 10, 2010, Emporia Police Officer Lance Delgado stopped a vehicle driven by Mark Foltz and discovered that Foltz and his passenger were in possession of methamphetamine. In order to prevent his own prosecution, Foltz agreed to make a controlled purchase of methamphetamine from Castleberiy. From the Emporia police station, Foltz used his cell phone to place two calls to Castleberiy, both of which were monitored and recorded by law enforcement. During the course of the first conversation, Foltz and Castleberiy discussed “going fishing,” which Foltz explained to police was code for a methamphetamine purchase. During the second conversation, Foltz and Castleberry agreed to meet at Peter Pan Park in Emporia.
The police set up video camera surveillance at the park, secured a wireless transmitter on Foltz, and provided him with $600 in cash to purchase the metham-phetamine. An officer followed Foltz to the park and, in addition to that officer, several other officers later observed Castleberry pull up next to Foltz. After 3 to 5 minutes, Foltz and Castleberry parted ways and separately left the park. Both Foltz and Castleberry were followed by the police. When Foltz arrived back at the Emporia police station, he turned over a Marlboro cigarette box containing two plastic baggies with a substance that was later confirmed to be methamphetamine. Foltz reported he had given Castleberiy $600 in exchange for the drugs.
When the police officers following Castleberiy attempted to pull him over, he sped up and led the officers on a high-speed chase outside the city limits. The chase lasted approximately 45 minutes, during which Castleberiy ran multiple stop signs and traffic lights. Castleberry eventually came to a stop and exited his vehicle. He ignored officers’ warnings to get down on the ground, put his hands up in what officers believed to be a taunting and aggressive manner, and told the officers to shoot him. Officer Delgado ultimately tased Castleberry and took him into custody.
Castleberiy was charged with one count each of aggravated assault of a law enforcement officer, obstructing legal process or official duty, distribution of methamphetamine, unlawful use of a communication facility to arrange a drag sale, failure to affix a drag tax stamp, fleeing or attempting to elude a law enforcement officer, and reckless driving.
At trial, Castleberry denied that he provided methamphetamine to Foltz in exchange for money. Castleberry testified that he and Foltz occasionally went fishing together and that he believed both of their June 10,2010, phone conversations were related to fishing. Castleberry claimed they always met at an agreed upon location before going fishing because they would take Foltz’ car. Castle-berry testified that before meeting Foltz at the park on the day in question, he received a text from Foltz’ girlfriend, Stacy Ragsdale, who said Foltz had been “busted” by police and was in jail. On his way to the park, Castleberry called Ragsdale and told her that Foltz could not be in jail because he was on his way to meet Foltz. When he pulled up beside Foltz in the car, Castleberry gave the phone to Foltz so Foltz could talk to Ragsdale. After Foltz got off the phone, he told Castleberry that he could not go fishing that day and suggested they go another time. Castleberry reported that they each left the park separately.
As Castleberry was leaving the park, he noticed a police officer following him and “panicked” because he just then realized he had associated with someone who allegedly had been caught with drags. Castleberry decided to “take off’ and leave town; he finally stopped his car after talking to his mother and a friend, who convinced him that he needed to pull over. Castleberry testified that after he stopped his car, he found himself surrounded by five or six police cars and could not hear anything due to all the sirens. Castleberry reported that he threw his keys down, put his hands up in the air, and told the officers not to shoot. Castleberry denied resisting arrest aiid claimed that his large size, combined with the stress of being tased, made it hard to get his hands behind his back, which caused the officers difficulties in trying to handcuff him.
After the close of evidence, the State dismissed the reckless driving charge. After deliberation, the juiy acquitted Castleberry of aggravated assault of a law enforcement officer but found him guilty of obstructing official duty, distributing methamphetamine, illegal use of a communication facility, failure to affix a drag tax stamp, and fleeing or attempting to elude a police officer. The district court sentenced Castleberry to a controlling prison term of 61 months.
Analysis
On appeal, Castleberry argues: (1) The evidence was insufficient to convict him of unlawful use of a communication facility to arrange a drug sale; (2) the district court erred in failing to instruct the jury on the specific offenses that constitute moving violations for the fleeing and eluding charge; (3) the district court erred in failing to give a unanimity instruction on the obstruction of official duty charge; (4) the State failed to present sufficient evidence on each of the alternative means of committing the crime of distribution of methamphetamine; and (5) the district court erred in enhancing his sentence based on criminal history without proving it to a jury beyond a reasonable doubt. We address each of Castle-berry’s arguments in turn.
I. Sufficiency of the Evidence: Unlawful Use of a Communication Facility
Castleberry challenges the sufficiency of the evidence supporting his conviction in Lyon County of unlawfully using a communication facility to distribute methamphet-amine. Specifically, he contends the State failed to prove that he committed this crime in Lyon County, which necessarily renders Lyon County an improper venue for the charge against him.
Venue is a necessary jurisdictional fact that must be proven along with the elements of the actual crime. See State v. Rivera, 42 Kan. App. 2d 1005, 1008-10, 219 P.3d 1231 (2009), rev. denied 290 Kan. 1102 (2010). Because venue is jurisdictional and implicates the district court’s subject matter jurisdiction, our standard of review is de novo. State v. Jackson, 280 Kan. 16, 20, 118 P.3d 1238 (2005), cert. denied 546 U.S. 1184 (2006); see State v. Calderon-Apancio, 44 Kan. App. 2d 830, 836-41, 242 P.3d 1197 (2010), rev. denied 291 Kan. 913 (2011). In this case, resolution of the venue issue also involves interpretation of K.S.A. 2010 Supp. 21-36a07, which is subject to de novo review. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
We begin our discussion of venue with K.S.A. 22-2602, the statutory authority for conferring venue in criminal prosecutions. This statute authorizes the State to prosecute a crime in the county where the crime was committed. Where two or more acts are requisite to the commission of the crime charged and such acts occur in different counties, however, K.S.A. 22-2603 authorizes the State to prosecute the crime “in any county in which any of such acts occur.”
In this case, Castleberiy was charged in Lyon County with unlawful use of a communication facility in violation of K.S.A. 2009 Supp. 21-36a07. This statute prohibits the knowing or intentional use of a communication facility to commit, cause, or facilitate the unlawful manufacture, distribution, cultivation, or possession of a controlled substance. At the close of evidence, the jury was instructed that in order to find Castleberiy guilty of this crime, tire State was required to prove:
“1. That the defendant intentionally used a cell phone in committing, causing the actual commission of, or facilitating the actual commission of distribution of Methamphetamine; and ■
“2. That this act occurred on or about the 10th day of June, 2010, in Lyon County, Kansas.”
Castleberry argues the second part of this jury instruction requires the State to prove that he was physically present in Lyon County when he used the cell phone. In support of this argument, Castleberry cites State v. Price, No. 92,012, 2005 WL 823912 (Kan. App.) (unpublished opinion), rev. denied 280 Kan. 989 (2005). In Price, the defendant was charged with illegal use of a communication facility to arrange a sale of a controlled substance. At trial, the State presented evidence that Denise Muhins had called the defendant from an apartment in Atchison County, but the record was silent as to the defendant’s location when he received the call. The State alleged that Mullins’ use of a telephone in Atchison County was sufficient to satisfy the venue element, relying on K.S.A. 22-2603. A panel of this court rejected the State’s argument, stating:
“Apparently, tire argument is that Mullins’ use of tire Atchison County telephone to call Price was a required element to convict him of unlawful use of a telephone to commit or facilitate tire commission of possession of marijuana with intent to sell. We are unpersuaded that Mullins’ act in Atchison County was an element of Price’s crime.” 2005 WL 823912, at *3.
The Price court reversed the defendant’s conviction, holding that the evidence did not support the required venue element of the crime. 2005 WL 823912, at *3. The State claims Price—an unpublished decision with no precedential value—was wrongly decided. For purposes of venue, the State asserts the unlawful “use” of a cell phone under K.S.A. 2009 Supp. 21-36a07 is not limited solely to the county where the defendant was physically located when the call was made or received, but instead is unlawfully “used” in both the county where the call was made and the county where the call was received.
In order to address the State’s claim, we must review the statute itself. Interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011). The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. State v. Collins, 294 Kan. 780, 782, 280 P.3d 763 (2012). An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010).
K.S.A. 2009 Supp. 21-36a07(a) states: “It shall be unlawful for any person to knowingly or intentionally use any communication facility . . . .” In the context of this sentence, the term “use” is a transitive verb meaning “to put into action or service.” See Webster’s Third New International Dictionary 2523 (1993). As a transitive verb, it requires and places emphasis on an object. See Chicago Manual of Style 172 (15th ed. 2003) (“A transitive verb requires an object to express a complete thought; the verb indicates what action the subject exerts on the object.”). Focus on the object—-in this case, a communication facility—is therefore critical to giving full effect to the term “use.”
To that end, K.S.A. 2009 Supp. 21-36a07(c) defines “communication facility” as “any and all public and private instrumentalities used or useful in the transmission of writing, signs, signals, pictures or sounds of all lands and includes telephone, wire, radio, computer, computer networks, beepers, pagers and all other means of communication.” Reading the two subsections in conjunction with each other, K.S.A. 2009 Supp. 21-36a07(a), (c) makes it unlawful for any person to “use” any communication instrumentality “used or useful in the transmission of writing, signs, signals, pictures or sounds of all kinds.” Given the statute specifically requires that the instrumentality be one that is used or useful in transmitting signals and sounds of all kinds, we believe the legislature intended the act of using any communication instrumentality (in this case a cell phone) to include the transmission of information from one party to another. That is, although the act of using a cell phone technically may require only unilateral conduct, the language of the statute substantively requires the act of using that cell phone to be made for purposes of communicating information from one person to another. For venue purposes, then, we conclude as a matter of law that “use” of a communication facility in violation of K.S.A. 2009 Supp. 21-36a07(a) occurs simultaneously where the parties to the communication are located. Having so concluded, we are ready to apply the law to the facts presented in this case.
The record does not indicate whether Castleberry was in Lyon County when he received Foltz’ phone calls. There is no dispute, however, that Foltz made the phone calls from Lyon County. Because an act requisite to Castleberry’s commission of the crime of unlawful use of a communication facility was committed in Lyon County, we hold the district court properly exercised subject matter jurisdiction over the offense and tire State presented sufficient evidence that Castleberry committed the crime in Lyon County.
II. Instructing the Jury on the Charge of Fleeing and Eluding a Police Officer
With regard to the charge of fleeing and eluding, Castleberry claims die district court erred in failing to instruct the jury on the specific offenses that could constitute moving violations. Castle- berry did not request the instruction he now asserts should have been provided.
“K.S.A. 22-3414(3) establishes a preservation rule for instruction claims on appeal. It provides that no party may assign as error a district court’s giving or failure to give a particular jury instruction, including a lesser included crime instruction, unless: (a) that party objects before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds for objection; or (b) the instruction or the failure to give the instruction is clearly erroneous. If an instruction is clearly erroneous, appellate review is not predicated upon an objection in the district court.” State v. Williams, 295 Kan. 506, Syl. ¶ 3, 286 P.3d 195 (2012).
In determining whether an instruction or a failure to give an instruction was clearly erroneous, an appellate court must first determine whether there was any error at all. To make that determination, “the appellate court must consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record.” 295 Kan. 506, Syl. ¶ 4. If the appellate court concludes the district court erred in giving or failing to give a challenged instruction, the clearly erroneous analysis moves to a reversibility inquiry, wherein the court assesses “whether it is firmly convinced that the juiy would have reached a different verdict had the instruction error not occurred.” 295 Kan. 506, Syl. ¶ 5.
K.S.A. 2009 Supp. 8-1568(a) prohibits a driver from willfully failing or refusing to bring his or her motor vehicle to a stop for a pursuing police officer when tire driver is given a visual or audible signal to do so. A first-time conviction of fleeing or attempting to elude is a class B misdemeanor. K.S.A. 2009 Supp. 8-1568(a) and (c)(1). The statute elevates the crime to a severity level 9 person felony when certain circumstances occur during the pursuit. These circumstances include when the driver engages in reckless driving or commits five or more moving violations during a police pursuit. K.S.A. 2009 Supp. 8-1568(b)(1)(C), (b)(1)(E), and (c)(4).
The jury was instructed that in order to find Castleberry guilty of felony fleeing or attempting to elude a police officer, the State was required to prove:
“1. That tlie defendant was driving a motor vehicle; and
“2. That the defendant was given a visual or audible signal by a police officer to bring the motor vehicle to a stop; and
“3. That the defendant intentionally failed or refused to bring the motor vehicle to a stop, or otherwise fled or attempted to elude a pursuing police vehicle; and
“4. That the police officer giving such a signal was in uniform, prominently displaying such officer’s badge of office; and
“5. That the police officer’s’vehicle was appropriately marked showing it to be an official police vehicle; and
“6. That the defendant engaged in reckless driving or committed five or more mooing violations[; and]
“7. That this act occurred on or about die 10th day of June, 2010 in Lyon County, Kansas.
“The elements of reckless driving are as follows;
1. That the defendant was driving a vehicle;
2. That the defendant was driving in a reckless manner[.]
“Reckless means driving a vehicle under circumstances that show a realization of the imminence of danger to anodier person or the property of another where there is a conscious and unjustifiable disregard of drat danger.” (Emphasis added.)
Although die instruction did not define the phrase “moving violation,” the jury was provided with a unanimity instruction, which read:
“The State claims distinct multiple acts which each could separately constitute the crime of fleeing or attempting to elude a law enforcement officer. In order for the defendant to be found guilty of fleeing or attempting to elude a police officer, you must unanimously agree upon the same underlying act[s].”
As Castleberry asserts, the jury was instructed on two alternative theories of fleeing and eluding: reckless driving or committing five or more moving violations. As Castleberry also asserts, the phrase “moving violations” in the second alternative was not defined for the jury. In the absence of such a definition, Castleberry argues it is impossible to know which specific acts the juiy unanimously relied on to support his conviction and, in turn, it is impossible to know whether the specific acts relied upon qualify as moving violations—as opposed to nonmoving traffic infractions—as a matter of law. For support, Castleberry relies on State v. Richardson, 290 Kan. 176, 224 P.3d 553 (2010).
In Richardson, a police officer attempted to stop Richardson for a traffic violation. Richardson did not stop but sped away, resulting in a police pursuit. During the pursuit, Richardson committed a number of traffic violations. The State charged Richardson with, among other things, felony fleeing or attempting to elude the officer while committing at least five moving violations. The jury convicted Richardson of felony fleeing or attempting to elude.
On appeal, a panel of this court held the court’s failure to instruct the jury on the specific underlying moving violations and their respective elements was erroneous. The court reasoned that in the absence of instructions specifying which of Richardson’s various traffic infractions constituted moving violations, the jury may have found Richardson guilty of a traffic infraction that was not a moving violation. Applying a clearly erroneous standard of review, however, the panel determined that—in light of the overwhelming evidence of Richardson’s 14 moving violations—there was no real likelihood that the juiy could have returned a different verdict. As a result, this court affirmed Richardson’s conviction for felony fleeing or attempting to elude. State v. Richardson, 40 Kan. App. 2d 602, 610-11, 194 P.3d 599 (2008), aff'd in part and rev'd in part 290 Kan. 176.
On review, our Supreme Court agreed that the failure to instruct the juiy on the specific underlying moving violations was erroneous, but it disagreed with this court’s application of the clearly erroneous standard. Richardson, 290 Kan. at 181-82. Rather, the Supreme Court observed that when district courts err by omitting an element of a crime, Kansas courts apply a harmless error analysis. Under this standard of review, an appellate court looks to “whether the omitted element was uncontested and supported by such overwhelming evidence that the jury verdict would have been the same without the omission.” 290 Kan. at 182. Ultimately, the Supreme Court held that the trial court’s error in failing to instruct the juiy with definitions of at least five underlying moving violations was not harmless and reversed the conviction. 290 Kan. 182-84. The Supreme Court noted that when conducting a harmless error review, an appellate court may not “speculate with legal finality which of a wide range of conduct, some legal and some illegal, a jury elected to consider moving violations.” 290 Kan. at 183. The court reasoned:
“This court cannot know whether tire jury found that Richardson committed at least five moving violations, since they were not identified or defined to the jury, and we do not know which specific acts the jury deemed to be moving violations. It may be that the jury included speeding violations that are excluded from the list of moving violations compiled by the Kansas Department of Revenue. It may also be that the jury included acts that are not even statutory infractions ....
“We will not step into the shoes of the jurors and convict Richardson of five moving violations of our choice—the jury did not make tire necessary determination of guilt beyond a reasonable doubt on all tire elements of the crime charged. The failure to provide the jury with instructions specifying and defining at least five underlying moving violations as elements of the fleeing or attempting to elude crime charged against Richardson constitutes clear error, and we reverse 290 Kan. at 183.
In light of the holding in Richardson, we find the district court’s failure to provide the specific elements of each kind of moving violation at issue in the case was error. Accordingly, we now must determine whether there exists “a real possibility that the jury could have rendered a different verdict had the trial error not occurred.” See 290 Kan. at 182. In making this determination, we must examine the record “to determine whether the omitted element was uncontested and supported by such overwhelming evidence that tire jury verdict would have been the same without the omission.” 290 Kan. at 182.
Before undertaking this examination, we find it helpful to consider the definition of the term “moving violation.” Kansas statutes and administrative regulations provide various definitions for the term. In the context of regulating motor carriers, the Kansas Corporation Commission defines moving violation as “the commission or omission of an act by a person operating a motor vehicle that could result in injury or property damage and that is also a violation of a statute, ordinance, or regulation of this state or any other jurisdiction.” K.A.R. 82-4-1(t). In the context of regulating drivers’ licenses, the Kansas Department of Revenue lists specific statutory violations that qualify as moving violations. K.A.R. 92-52-9(a). In lieu of providing an exhaustive definition, K.S.A. 2009 Supp. 8-1560c identifies certain traffic violations that are excluded from the definition of “moving violations,” including any speeding offense within 6 to 10 miles per hour over the applicable speed limit.
In this case, there was no evidence to establish that Castlebeny committed a traffic infraction excluded from the definition of moving violation under K.S.A. 2009 Supp. 8-1560c. The evidence at trial included testimony from Officer Delgado that Castleberry drove through at least eight intersections controlled by a stop sign or stop light and drove at speeds over 100 miles per hour and as high as 120 miles per hour. Castleberry did not dispute this evidence and admitted his speedometer indicated that he was driving over 100 miles per hour.
Even if the more restrictive definition of “moving violation” found at K.A.R. 92-52-9(a) is considered, all of the offenses described by Officer Delgado constitute moving violations. See K.A.R. 92-52-9(a)(1)(I) (traffic control obedience under K.S.A. 8-1507); K.A.R. 92-52-9(a)(1)(Q) (minimum and maximum speed limits under K.S.A. 8-1560b). The only evidence.of speeding presented in this case was driving at speeds over 100 miles per hour, which rules out conduct that would fall within the exclusion of K.S.A. 2009 Supp. 8-1560c. Thus, regardless of the traffic offenses presented at trial upon which the jury relied to support Castle-beny s conviction for felony fleeing or attempting to elude, they all constituted moving violations. As such, we find the instructional error had no effect on the verdict for this conviction and therefore was not clearly erroneous. A panel of this court recently reached a similar conclusion in State v. Cordova-Hipolito, No. 103,793, 2011 WL 3658368, at *3-4 (Kan. App. 2011) (unpublished opinion), rev. denied 293 Kan. 1109 (2012).
III. Instructing the Jury on the Obstruction of Official Duty Charge . ■,
Castleberry alleges the State presented evidence of multiple acts that could have supported the charge of obstruction of official duty, which necessarily means the district court erred, in failing to give a unanimity instruction on that charge.
A defendant is entitled to a unanimous jury verdict. See K.S.A. 22-3421; State v. Stevens, 285 Kan. 307, 313, 172 P.3d 570 (2007). A multiple acts case is one in which several distinct and separate acts are alleged, any one of which could constitute the crime charged. In a case involving multiple acts, unless the State elects what act it is relying on to base a conviction, a unanimity instruction is required to make sure the jurors understand that they must unanimously agree on the act constituting the crime. See State v. Colston, 290 Kan. 952, 968-69, 235 P.3d 1234 (2010); State v. Sanborn, 281 Kan. 568, 569, 132 P.3d 1277 (2006). Whether a case involves multiple acts is a question of law over which appellate courts have unlimited review. State v. Kesselring, 279 Kan. 671, 682, 112 P.3d 175 (2005).
The jury was instructed that in order to find Castleberry guilty of obstructing official duly, the State was required to prove:
“1. That Officer Lance Delgado was discharging an official duty, namely the arrest of the defendant;
“2. That the defendant knowingly and intentionally obstructed Officer Lance Delgado in die execution of the arrest;
“3. That the act of the defendant substantially hindered or increased the burden of the officer in the performance of the officer’s official duty;
“4. That at the time the defendant knew or should have known that Officer Lance Delgado [was] a law enforcement officer; and
“5. That this act occurred on or about the 10th day of June, 2010, in Lyon County, Kansas.”
Castleberry contends the State presented two distinct acts, each of which could have been used to support the obstruction of official duty charge: (1) He fled from police in a high-speed chase, and (2) officers had to tase and struggle with Castleberry in order to handcuff and arrest him. The State disagrees with this characterization and maintains that Castleberry’s actions in fleeing from law enforcement and Delgado’s subsequent use of the taser on Castle-berry constituted a continuous, unbroken chain of events.
In State v. Voyles, 284 Kan. 239, 160 P.3d 794 (2007), tire Kansas Supreme Court set out a three-part test to determine when a multiple acts situation has occurred such that the jury must agree on the same underlying criminal act. First, the court must determine if the case truly involves multiple acts, i.e., whether the defendant’s conduct was part of one act or represents multiple acts which are separate and distinct from each other. Second, the court must consider whether error occurred, i.e., whether there was a failure by the State to elect an act or a failure by the trial court to instruct. Third, the court must determine whether the error is reversible. 284 Kan. at 252-53.
Step 1—Is this a multiple acts case?
The threshold question in a multiple acts analysis is whether the defendant’s conduct is part of one act or represents multiple acts that are separate and distinct from each other. There is no single test for whether conduct constitutes one act or separate and distinct multiple acts; rather, the courts must look to the facts and the theory of the crime as argued to determine whether a jury verdict implicates unanimity issues. State v. Allen, 290 Kan. 540, Syl. ¶¶ 1, 2, 232 P.3d 861 (2010).
Factors for determining if there is unitary conduct in a multiple acts case include: “(1) whether the acts occur at or near the same time; (2) whether the acts occur at the same location; (3) whether there is a causal relationship between the acts, in particular whether there was an intervening event; and (4) whether there is a fresh impulse motivating some of the conduct.” State v. Schoonover, 281 Kan. 453, 507, 133 P.3d 48 (2006). Additionally,
“ ‘[i]ncidents are legally separate when the defendant presents different defenses to separate sets of facts or when the court’s instructions are ambiguous but tend to shift the legal theory from a single incident to two separate incidents. Incidents are factually separate when independent criminal acts have occurred at different times or when a later criminal act is motivated by “a fresh impulse.” ’ [Citation omitted.]” Allen, 290 Kan. at 543.
We find Casdeberry’s conduct here—fleeing from law enforcement, stopping his vehicle, being tased, and being taken into custody—amounts to one continuous act in which- Castleberry substantially hindered or increased the burden of the law enforcement officers who were trying to effect his arrest. Although the entire incident started in one location, ended in another, and took place over a time period of approximately 45 minutes, Castleberry’s actions reflect a seamless and singular occurrence, undistinguished by any intervening event or fresh impulse. See Kesselring, 279 Kan. at 683 (length of time involved did not prevent a finding of a continuous incident, and moving of a kidnapping victim from one lo cation to a car and from the car to another location did not constitute separate acts). The jury instruction was consistent with this concept of one continuous act and did not shift the legal theory to two separate incidents. Moreover, the record does not reflect that Castleberry raised different defenses to his actions prior to or during the chase and after he stopped his car. Castleberry testified that he initially fled from law enforcement because he “panicked” and he continued to be in a state of panic during the entire chase. Castleberry generally denied any aggressive behavior that occurred after he stopped his car and was arrested.
Because Castleberry’s actions of fleeing from law enforcement and struggling with law enforcement prior to his arrest do not constitute multiple acts, his argument fails to survive the threshold question under the Voyles analysis.
Step 2—Did the distríct court err?
Even if this court were to determine that Castleberry’s actions constituted multiple acts, he cannot show that the district court erred under the second step of the Voyles test.
In a multiple acts case, either the State must inform the jury which act to rely upon in its deliberations or the court must instruct the jury to agree on the specific criminal act. The failure to either instruct or elect is error. Voyles, 284 Kan. 239, Syl. ¶ 2. In this case, the district court did not instruct the jury to agree on the specific criminal act supporting the obstruction charge. Therefore, we must determine whether the State properly informed the jury which act to rely upon to support the obstruction conviction.
During closing argument, the prosecutor stated:
“As far as obstruction of official duty, we maintain that happened the minute that he ran from Lance Delgado in Emporia, continued along the route that they took out through Lyon County, North Lyon County, Kansas, until he stopped south of Americus. The actions that he took constituted both obstruction of official duty and fleeing and eluding.”
Castleberiy argues that because the prosecutor failed to specifically exclude anything that took place after Castleberry stopped his car, the jury could have inferred that these actions also constituted a potential act of obstruction.
Castleberry’s argument is without merit. The prosecutor’s statements clearly informed the jury that to support the obstruction charge, the State was relying on Castleberry’s actions in substantially hindering the law enforcement officers who were trying to effect his arrest, beginning when he fled from Delgado and ending when “he stopped south of Americus.”
In sum, Castleberry’s actions did not constitute distinct multiple acts. But even if they did, the district court was not required to provide the jury with a unanimity instruction because foe State properly informed the jury which act to rely upon to support the obstruction charge.
IV. Alternative Means of Distributing Methamphetamine
Castleberry argues that the definition of “distribute” provided to the jury establishes alternative means of committing tire crime of distribution of methamphetamine and the State failed to present sufficient evidence at trial to support his conviction under one or more of these means.
A criminal defendant has a statutory right to a unanimous jury verdict on each individual offense charged. See State v. Wright, 290 Kan. 194, 201-03, 224 P.3d 1159 (2010). In an alternative means case—where a single offense may be committed in different ways—there must be jury unanimity as to guilt for the single offense but not as to the particular means by which the crime was committed so long as any means of committing the crime is supported by sufficient evidence. 290 Kan. at 202. If a case presents alternative means of committing the offense and the record does not provide sufficient evidence supporting each of the alternative means, foe conviction must be reversed and the case remanded for a new trial. 290 Kan. at 205-06 (specifically disapproving of the harmless error analysis applied in State v. Dixon, 279 Kan. 563, 112 P.3d 883 [2005]).
Before addressing whether there was sufficient evidence to prove tire alleged alternative means, however, we must first determine whether this case truly presents an issue of alternative means. If the offense of distribution of methamphetamine cannot be committed in more than one way, jury unanimity is not at issue and an alternative means analysis is inapplicable. Resolution of this issue involves statutory interpretation which is a question of law over which an appellate court has unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
The jury was instructed that in order to convict Castleberry of distribution of methamphetamine, the State was required to prove (1) Castleberry intentionally distributed methamphetamine (2) on or about June 10, 2010, in Lyon County, Kansas. The instruction further defined the term “ ‘[distribute’ ” to mean “the actual, constructive, or attempted transfer of some item from one person to another, whether or not there is an agency relationship between them. ‘Distribute’ includes sale, offer for sale or .any act that causes some item to be transferred from one person to another.” This instruction is modeled on PIK Crim. 3d 67.32 and is consistent with the definition of “distribute” as set forth in K.S.A. 2009 Supp. 21-36a01(d), the statute in effect at the time of Castleberry’s crime.
Castleberry contends the State failed to prove that he distributed methamphetamine by each of the alternative means of (1) actual, (2) constructive, or (3) attempted transfer. Although conceding the evidence was sufficient to support a finding that he actually—and even constructively—transferred methamphetamine to Foltz, Cas-tleberry argues the State failed to prove that he attempted to transfer the methamphetamine because all the evidence showed that the transfer was successfully accomplished.
Although we could find no Kansas appellate decision discussing whether actual transfer and attempted transfer are alternative means of distributing controlled substances as defined by K.S.A. 2009 Supp. 21-36a01(d), we find persuasive the reasoning of another panel of this court that examined the same issue in the context of a different criminal statute. See State v. Aguirre, 45 Kan. App. 2d 141, 245 P.3d 1, aff'd in part and rev'd in part 296 Kan. 99, 290 P.3d 612 (2012). In Aguirre, the defendant was charged, among other things, with aggravated intimidation of a victim. Aguirre argued there were alternative means by which he could have committed the crime, including either (1) preventing or dissuading tire victim from reporting the sexual abuse or (2) attempt ing to so prevent or dissuade the victim. The panel rejected Aguirre’s argument.
“Normally, attempted crimes are distinct from completed crimes and constitute separate crimes. See K.S.A. 21-3301. However, K.S.A. 21-3833 defines aggravated intimidation of a victim or witness to encompass both the successful intimidation and the attempted but unsuccessful intimidation. By so doing, it is clear that whether the crime is committed is not a function of how effective the intimidation was. Rather, there is but one criminal act: to intimidate a victim or witness with the intent to deter the reporting of a crime, whether or not the intimidation is successful. One does not commit the crime of intimidating a witness by alternative means of either doing it or merely trying to do it.
“... [W]hether the intimidation is successful or not, the gravamen of the statute is the act of intimidation.
“The charge in die complaint and the court’s instructions did not present alternative means used by Aguirre to intimidate [the victim], leaving the possibility of different members of die jury settling on different conduct as a basis to convict. The crime as defined by die statute is completed at the time of the intimidation regardless of the results of the intimidation. Accordingly, the charge in the complaint and the court’s instruction do not present a true alternative means issue.” 45 Kan. App. 2d at 148-49.
The Supreme Court affirmed the conclusion that the statute involved did not present an alternative means issue and affirmed Aguirre’s conviction. 296 Kan. at 110.
We find the Aguirre rationale is readily applicable to the statu-toiy definition of “distribute.” Using this rationale, we conclude actual transfer and attempted transfer do not present alternative means of distributing controlled substances under K.S.A. 2009 Supp. 21-36a01(d)(1). Our conclusion in this regard is consistent with the recent decision in State v. Brown, 295 Kan. 181, 284 P.3d 977 (2012), where our Supreme Court held that “options within a means,” i.e., options that do not state a material, distinct element, do not warrant application of the “alternative means rule/super-sufficiency requirement.” 295 Kan. at 188, 196-97. Specifically, the Brown court ruled that definition statutes which merely describe a material element or a factual circumstance that would prove the crime are “options within a means” that do not create additional alternative means of committing an offense. 295 Kan. at 196-97.
Here, the statutory definition of “distribute” lists options within a means, as it merely describes the types of factual circumstances that may prove the material element of “distribute.” As such, it does not trigger concerns of juiy unanimity or raise a sufficiency issue that requires us to examine whether these options are supported by evidence. See 295 Kan. at 196-200; see State v. Waldrup, 46 Kan. App. 2d 656, 669, 263 P.3d 867 (2011) (holding that “the district court’s definitional jury instruction of the term ‘sale’ did not create alternative means of committing the crime of sale of cocaine” because the definition is “more aptly categorized as an explanatory definition rather than a fundamental definition of the crime itself’), petition for rev. filed November 16, 2011.
Castleberry concedes the State presented sufficient evidence that he actually or constructively transferred the methamphetamine to Foltz. Because the State was not also required to present evidence that Castleberry attempted to transfer the methamphetamine, he is not entitled to reversal of his distribution conviction on this issue.
V. Criminal History
Finally, Castleberry challenges the district court’s use of his prior convictions as reflected in his criminal histoiy score to enhance his sentence based on the due process concerns of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Castleberry acknowledges that our Supreme Court has rejected his argument in State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002), but raises the issue in order to preserve it for federal review.
We are duty bound to follow Kansas Supreme Court precedent absent some indication that the court is departing from its previous position. State v. Jones, 44 Kan. App. 2d 139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011). Our Supreme Court continues to reaffirm its precedent in this area. See State v. Barnes, 293 Kan. 240, 265, 262 P.3d 297 (2011). Therefore, the district court did not violate Castleberry’s constitutional rights at sentencing.
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McAnany, J.;
In this appeal we are asked to apply a requirement in a “Protective Safeguards” endorsement to a fire insurance policy that “All Electric is on Functioning and Operational Circuit Breakers.”
Mount Vernon Fire Insurance Company (Mount Vernon) issued the policy that contained this endorsement to Gold Mine Investments, Inc., doing business as Gold Realty (Gold) for fire coverage on a commercial building Gold owned in Atchison. The building was destroyed by fire, and Mount Vernon denied coverage, claiming that Gold breached the policy by having both a fuse box and circuit breakers protecting the electrical service in the building. According to Mount Vernon, the building’s electrical circuits had to be protected by cbcuit breakers to the exclusion of any fuses.
Gold sued Mount Vernon for its denial of coverage, and the district court granted summary judgment in favor of Mount Vernon on Gold’s claims. In our de novo review we conclude that Mount Vernon was not entitled to summary judgment, so we reverse the judgment in its favor and remand the case for further proceedings in the district court.
The Policy
The policy Mount Vernon issued to Gold was a commercial package policy which included general liability and commercial property coverage for Gold’s building. The commercial property coverage portion of the policy was subject to a “Protective Safeguards” endorsement which required the insured to maintain certain protective safeguards listed on a schedule. The schedule included the following: “All Electric is on Functioning and Operational Circuit Breakers.” Further, the endorsement stated:
“We will not pay for loss or damage caused by or resulting from fire if, prior to tlie fire, you:
“1. Knew of any suspension or impairment in any protective safeguard listed in the Schedule above and failed to notify us of that fact; or
“2. Failed to maintain any protective safeguard listed in the Schedule above, and over which you had control, in complete working order.”
Mount Vernons Summary Judgment Motion
The district court denied Mount Vernon’s first summary judgment motion, finding unresolved issues of material fact for trial. Later, Mount Vernon filed the current summaiy judgment motion. In support of this motion, Mount Vernon stated that the “record establishes that Gold Realty failed to comply with the Endorsement because the building’s electrical system at the time of the fire used both fuses and circuit breakers.” Here, in abbreviated form, are Mount Vernon’s key claimed uncontroverted facts:
8. Before the fire the building “did not have all electric power on functioning and operational circuit breakers.”
12. The fuse panel “remained energized after Mr. Ochoa finished his work.”
15. There was a three-phase fuse box in the building just before the fire.
19. The building had at least one fuse panel installed which was connected to the power source and energized with electricity.
20. The building had at least one fuse panel that was installed and operational before the fire.
21. The building had one or more fuses energized with power that were in operation right before the fire.
22. Power to the building was distributed through a disconnect switch, a fuse panel, and a circuit breaker before the fire.
23. The fuse panel was not “fully terminated” at foe time of the fire.
24. The building used both fuses and circuit breakers to provide electrical power before the fire.
The citations from the record in support of Mount Vernon’s motion included the depositions of Jason Ochoa and Jake Hawk, the sworn statement of Dedtrick Haley taken by Mount Vernon, and affidavits of Karen Gorsld and Eric Drews.
Ochoas and Hawk’s Depositions
Ochoa, referred to in uncontroverted fact 12, was the electrician who installed a walk-in cooler on the premises a couple of years before the fire. Mount Vernon cited Ochoa’s deposition testimony that when he did the work, there was a fuse panel, circuit panel, and distribution panel from which the building’s electricity operated. Ochoa said the fuses were still energized when he finished his work on the cooler.
Mount Vernon’s reference to the Hawk deposition is unclear. In the cited reference Hawk agreed that “it is possible for someone to run a circuit box and a fuse box in a parallel or series.”
Haley’s Sworn Statement
Haley, Gold’s representative, said that the electrical service in the building remained unchanged during the time Gold owned the building and that the circuit breakers in the building were working, to the best of his knowledge. Haley said there were occasions when he had to change out fuses in foe building.
Gorski’s and Drews’ Affidavits
Gorski, an underwriter for Mount Vernon, stated that an energized fuse panel would constitute an increased risk of fire and a violation of the endorsement to the policy.
Drews, a mechanical engineer, stated that fuses create a greater fire risk than circuit breakers because fuses can be tampered with so as to overcome the protection they afford and fuses deteriorate with age. Further, if a fuse on a circuit trips but the downstream circuit breaker does not, there is an increased risk of fire. In Drews’ opinion, having an electrical circuit protected by both fuses and circuit breakers increases the risk of fire.
Gold’s Response to the Summary Judgment Motion
Gold filed its response to the motion several days late. Though the district court expressed its displeasure with Gold’s late filing, in ruling on the motion the court stated: “The Court finds that it is not necessary to grant summaiy judgment based upon the un-controverted facts as a result of the plaintiff s failure to respond within the 21 day period. This matter is ripe for summaiy judgment based upon the evidence presented.” The district court then discussed Gold’s response and its references to the depositions of Hawk and Ochoa in support of its argument. Thus, it appears that the court took into account Gold’s references to additional facts, though it ultimately found that they failed to create a genuine issue of material fact which would preclude summaiy judgment. While on appeal we consider Mount Vernon’s motion de novo, we defer to the district court on whether facts asserted in the nonmoving party’s response should be considered or rejected out of hand for being untimely. Because it appears that the district court considered (but ultimately found unpersuasive) Gold’s additional citations to the record, we will likewise consider them in our de novo review.
Haley’s Affidavit
Gold provided an affidavit from Haley, who applied for the insurance on behalf of Gold. He stated that when he applied for the coverage he was not asked any questions about the condition of the building’s electrical system.
Hawk’s and Ochoa’s Depositions
Gold cited additional testimony from Hawk’s deposition. Hawks, who examined the scene after the fire, was of the opinion that because of tire absence of necessary wiring, the fuses in the fuse box did not appear to have been energized at the time of the fire and the fuse box was being used simply as a junction box.
Gold cited testimony from Ochoa’s deposition, the same deposition cited by Mount Vernon. Mount Vernon cited Ochoa’s statement that the fuses were still energized when he finished his work on the cooler. Gold cited later testimony in the same deposition: “Q. Were there any wires energizing any of tire fuse holders in that fuse box? A. No, sir. Q. No doubt in your mind? A. No, sir.”
Hawk’s Affidavit
Gold also cited an affidavit from Hawk in which he stated that when he examined the electrical service in the building, the panel covers were removed and he could see that
“[a]ll of the fuse panel circuits had the wires either cut or removed. The functioning wires that entered into the fuse panel were wired nutted to an extension wire, were routed through the gutter tray and into breaker protected circuits within the circuit breaker panel.
“All of the circuits in [the] building start at tire panel box, run through a breaker and to an electrical device.”
Mount Vernon’s Reply
Mount Vernon filed its reply brief. To counter Haley’s affidavit, Mount Vernon referred generally to tire policy application in which it claimed that Haley “expressly warranted] certain conditions of the building—-including that ‘all electric is on functioning and operational circuit breakers.’ ” The policy application we examined is not the clearest of copies and we may have missed it, but we fail to see where over Haley’s signature he made any such representation.
Citing Watkins v. McAllister, 30 Kan. App. 2d 1255, 59 P.3d 1021 (2002), Mount Vernon argued that the court should disregard Hawk’s affidavit because in it he attempts to recant testimony he gave in his sworn deposition. In support of this argument, Mount Vernon cited portions of Hawk’s deposition which are not in the record but were attached to Mount Vernon’s appellate brief. Consequently, we disregard such references. See Supreme Court Rule 6.03(b) (2012 Kan. Ct. R. Annot. 43); Edwards v. Anderson Engineering, Inc., 284 Kan. 892, 895, 166 P.3d 1047 (2007) (stating that an appendix is limited to containing extracts from the record on appeal and cannot serve as a substitute for the record itself).
Rut in reviewing the portions of Hawk’s deposition contained in the record and cited by Gold in its response to the motion (without the benefit of the photo exhibits referred to in the deposition), we see that Hawk testified that there were no wires leading from the outbound side of tire fuse box and, more importantly, there were no wires on the inbound side of the box. There was wiring in tíre box, but it was “[n]ot coming out of the fuses. There was wiring in tire fuse box because they used it as a junction box. . . . [Tjhere were no service wires into the lugs. . . . That would have been how they would have fed the fuse box.” When asked whether those wires could have been burned up in the fire, Hawks stated, “They were gone. They are big. They are very big. They wouldn’t have burned completely up.”
Standards of Review
Our standards for reviewing on appeal an order granting summary judgment are the same standards the district court must apply in the first instance in considering a summary judgment motion. Those standards are well known to the parties and nearly eveiy reader who may stumble upon this opinion. For those who need a refresher, they can be found in O’Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 330, 277 P.3d 1062 (2012).
Because our review is de novo, we focus on the motion itself and the later response and reply, together with the citations to the record, upon which we must determine whether there remains any genuine issue of material fact. If -there are no unresolved material facts requiring a trial, we must then determine whether, under the language of the policy, Mount Vernon is entitled to judgment as a matter of law.
In considering the language of the Protective Safeguards Endorsement to the policy, we examine the language of the endorsement without applying any rules of construction if the terms of the endorsement are clear. See Carrothers Constr. Co. v. City of South Hutchinson, 288 Kan. 743, 751, 207 P.3d 231 (2009). The test for determining the meaning of the language of an insurance policy is what a reasonable person in the position of the policyholder would understand the language to mean. Farm Bureau Mut. Ins. Co. v. Horinek, 233 Kan. 175, 180, 660 P.2d 1374 (1983). Unless a contrary intention is shown, words used in an insurance contract are to be given the natural and ordinary meaning they convey to the ordinary mind. Kansas Farm Bureau Ins. Co. v. Cool, 205 Kan. 567, 572, 471 P.2d 352 (1970).
Discussion
The basic factual premise for Mount Vernon’s motion appears to be that the building had a fuse panel which was connected to the building’s power source and was energized with electricity (statement of uncontroverted fact 19) and that the building used both fuses and circuit breakers to provide protection for the building’s electrical service before the fire (statement of uncontroverted fact 24). The essence of Mount Vernon’s defense is that Gold used fuses and circuit breakers in series on the same electrical circuit, in violation of the policy endorsement.
As we review the evidence, which consists of only bits and pieces of depositions and none of the deposition exhibits, the truth of this purported fact remains unresolved. Haley gave Mount Vernon a sworn statement in which he indicated that the electrical system had not been changed during tire time Gold owned the building and that he had replaced fuses in the past. We do not know when Haley replaced fuses. But we do know that Ochoa installed on the premises an electrically operated walk-in cooler while Gold owned the building. Ochoa’s testimony appeared to be all over tire map. He said that when he installed the cooler, there was a fuse panel, circuit panel, and distribution panel from which the building’s elec tricity was supplied. He said that when he finished his work the fuses were still energized. But later in the same deposition he testified: “Q. Were there any wires energizing any of the fuse holders in that fuse box? A. No, sir. Q. No doubt in your mind? A. No, sir.”
Further, Hawk testified that when he examined the system after the fire, there were no wires supplying electricity to the fuse terminals and, in his opinion, those wires would have been so big that they would not have been fully consumed in the fire. It appeared to Hawk that the fuse box was being used simply as a passive junction box.
Mount Vernon does not contend that there were electrical circuits in the building that were protected only by fuses. Rather, it claims there is uncontroverted evidence that fuses and circuit breakers were used in series on at least one electrical circuit in the building. When considering this factual theory, it is apparent that there remains a genuine issue as to whether there were operating fuses in place in any of the electrical circuits in the Gold building at the time of tire fire. It is not our task, nor was it the task of the district court, to weight conflicting evidence on this point in determining the outcome of the summary judgment motion. That task is reserved for the fact-finder at trial.
But even if it were undisputed that fuses and circuit breakers were used in series in the same electrical circuit in the Gold building, was that a material fact entitling Mount Vernon to judgment as a matter of law based on the plain language of the policy?
The Protective Safeguards Endorsement contains a schedule of required protective devices. The first entry on the schedule states: “All Electric is on Functioning and Operational Circuit Breakers.” First, this provision lacks grammatical clarity. The adjective “Electric” has no noun to modify. Further, the verb requires a singular noun, which is contradicted by the adjective “All.” Mount Vernon contends that what it really meant to say was that all electric circuits must be on functioning and operational circuit breakers. This, too, seems rather odd, since one would expect tire breakers to be on the circuits, not the other way around. Be that as it may, in oral argument Gold expressed a willingness to acquiesce to this after- the-fact policy redrafting. Therefore, for our purposes, we will presume that what Mount Vernon meant to say was that all electric circuits shall have functioning and operational circuit breakers.
Mount Vernon points to the testimony of Drews, its mechanical engineering expert. According to Drews, under a specific set of circumstances the presence of both fuses and circuit breakers in an electrical circuit can create a risk of fire greater than when only circuit breakers are present. But, as noted earlier, we give common, ordinary words their common, ordinaiy meaning and view the policy language from the perspective of an ordinary, reasonable policyholder.
As now reconstructed, the policy requires that all electric circuits have functioning and operational circuit breakers. It does not say “circuit breakers to tire exclusion of fuses.” There certainly is evidence in the record so far that there were circuit breakers in the line. The rub seems to be the possible presence of fuses in series with circuit breakers.
We are willing to reconstruct the Protective Safeguards Endorsement to malee some sense out of it. But we are unwilling to read into the policy a wholly new provision: a requirement that there be no fuses in any electrical circuit serving the building.
A reasonable policyholder would not read tire language of tire policy as prohibiting the use of fuses. While Mount Vernon’s expert sees danger in this practice, the average, reasonable policyholder would view the presence of multiple protective devices as a cautious belt-and-suspenders approach. Whole commercial product lines are built around downstream ground fault interrupters and surge protectors (some of which may use fuses) to protect expensive computers and other sensitive electronic devices. Whatever meaning can be derived from Mount Vernon’s policy language, that meaning does not reasonably include a requirement that only circuit breakers may be used to protect an electrical circuit in the insured building.
Mount Vernon has failed to establish that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Therefore, we reverse the district court’s contraiy holding, set aside the judgment, and remand the case to the district court for further proceedings.
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Bruns, J.:
TransCanada Keystone Pipeline, L.P. (Keystone) applied for a tax exemption under K.S.A. 2010 Supp. 79-227 for a portion of its pipeline known as the Cushing Extension. This portion of the pipeline transports Canadian crude oil through Kansas to a terminal located in Cushing, Oklahoma. Although it is undisputed that Kansas refineries have access to the Canadian crude oil by means of existing pipelines that connect to the Cushing terminal, the Director of Property Valuation (Director) recommended denying the application because refineries do not have direct access to the pipeline in this state. The Court of Tax Appeals (COTA) granted summary judgment in favor of Keystone, finding that the plain language of K.S.A. 2010 Supp. 79-32,223(d)—which defines the term “qualifying pipeline”—does not require Kansas refineries to have a direct connection to the Cushing Extension within the boundaries of Kansas. Because we also find that the plain and unambiguous language of K.S.A. 2010 Supp. 79-32,223(d) does not require that Kansas refineries have direct access to the Cushing Extension in Kansas, we affirm the COTA’s decision.
Facts
The material facts of this case are not in dispute. Keystone is a limited partnership authorized to do business in tire state of Kansas. The partnership is engaged in the business of constructing and/or operating pipelines for the transportation of oil and natural gas. In February 2005, Keystone announced plans to construct a 2,148-mile pipeline—known as the “Mainline”—from Alberta, Canada, to Illinois. Ultimately, the Mainline is to pass through the states of North Dakota, South Dakota, Nebraska, Kansas, Missouri, and Illinois.
The Cushing Extension—which is the portion of the pipeline project at issue in this case—begins in Steele City, Nebraska, traverses Kansas for approximately 210 miles, and ends at an oil terminal in Cushing, Oklahoma. The Cushing terminal is one of the largest crude oil storage and pipeline hubs in the United States. Keystone first proposed the Cushing Extension in late 2005, and it began to examine the possibility in earnest during early 2006. At the same time, the Kansas Legislature was considering whether to provide income tax credits and property tax exemptions to encourage new qualifying pipeline projects.
In June 2006, the Kansas Legislature passed the Kansas Energy Development Act (the Act), L. 2006, ch. 209. As part of the Act, K.S.A. 2010 Supp. 79-227 provides a 10-year property tax exemption for “new qualifying pipeline property” constructed after December 31, 2005. K.S.A. 2010 Supp. 79-32,223(d) defines “qualifying pipeline” to mean “a pipeline which is located in this state, is used primarily for transportation of crude oil or natural gas liquids and has a length of more than 190 miles in this state and to which refineries or natural gas liquid processing facilities in this state have access.”
On July 3, 2007, after securing contracts for an additional 155,000 barrels of Canadian crude oil per day, Keystone announced its decision to move forward with plans to construct the Cushing Extension through Kansas. Construction began on the project in the spring of 2010, and the Cushing Extension began commercial operation in February 2011. The pipeline, which passes through Washington, Marion, Dickinson, Cowley, Clay, and Butler counties, delivers approximately 156,000 barrels of crude oil each day from Steele City, Nebraska, to Cushing, Oklahoma. It is undisputed that all three Kansas refineries have access to the crude oil by means of existing pipelines that connect with the Cush-ing terminal.
On October 17, 2008, Keystone filed an initial request for a property tax exemption as required by K.S.A. 2010 Supp. 79-213. The then Director of Property Valuation, Mark S. Beck, issued a written recommendation on October 29, 2010, recommending the denial of Keystone’s request for a property tax exemption. Specifically, the Director noted that “[ajlthough refineries in this state have access to crude oil being transported into Cushing, Oklahoma via the subject pipeline, no evidence has been submitted establishing that they have access to a pipeline which is located in this state.’ ” The Director recognized, however, that the issue required interpretation of K.S.A. 2010 Supp. 79-227 and K.S.A. 2010 Supp. 79-32,223 by COTA.
After the Director made his written recommendation, Keystone’s application for exemption was filed with COTA on November 1, 2010. At the same time, the parties filed a joint statement of stipulated facts. Subsequently, Keystone and the Director filed motions for summary judgment. Both parties recognized that the issue of whether Keystone is entitled to a property tax exemption involves statutoiy interpretation, which is a question of law subject to de novo review.
COTA granted summary judgment to Keystone on April 13, 2012, finding that “the refineiy access requirement of K.S.A. 79-32,223(d) is susceptible of but one reasonable meaning and is, therefore, unambiguous.” Further, COTA rejected the Director’s argument, concluding that “[t]he statute requires no direct connection and no particular means of access. Nor does the statute require that access be established at any particular location or proximity to refineries in Kansas.”
One member of COTA wrote a concurring opinion expressing his concern that K.S.A. 2010 Supp. 79-32,223(d) may not effectuate the legislature’s purpose for granting the tax exemption and suggesting that the legislature may desire to revise the statute to clarify its intention. Nevertheless, the judge concurred “with the majority that K.S.A. 79-32,223(d) is cleat and unambiguous.” Accordingly, the concurring judge agreed “with the majority's' .decision to grant the applicant’s request for [a] tax exemption.”
The Director subsequently filed a motion for reconsideration, which was denied in a unanimous order entered on May 16, 2012. In denying the motion, COTA noted that the Director had “stipulated that ‘[a]ll three Kansas refineries . . . will have access to the [Keystone] crude oil by means of existing pipelines that connect with the Cushing terminal.’ ” Likewise, COTA found that “[t]he technical mechanics, engineering and logistics of how oil is moved through the apparatus at the Cushing hub and ultimately conveyed to refineries in Kansas is not material to our analysis.”
Analysis
Issue Presented
On appeal, the sole issue presented is whether COTA erred in concluding that Keystone is entitled to a property tax exemption for the Cushing Extension under K.S.A. 2010 Supp. 79-227 and K.S.A. 2010 Supp. 79-32,223(d).
Standard of Review
We review COTA decisions under the Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq. Under the KJRA, the burden of proving the invalidity of COTA’s action rests on the party asserting invalidity. See K.S.A. 2010 Supp. 77-621(a)(l). Although judicial review is strictly limited by the KJRA, the issue on appeal involves statutoiy interpretation, which is a question of law. See K.S.A. 2010 Supp. 77-621(c)(4). As such, our review of the COTA’s decision is unlimited. See In re Tax Appeal of LaFarge Midwest, 293 Kan. 1039, 1043, 271 P.3d 732 (2012).
In interpreting a statute, the intent of the legislature governs. See Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607, 214 P.3d 676 (2009). When die plain language of a statute is unambiguous, we are to give effect to that language without resorting to principles of statutory construction or legislative history. See Double M Constr. v. Kansas Corporation Comm'n, 288 Kan. 268, 271-72, 202 P.3d 7 (2009). Because the statutes to be interpreted in this case involve exemptions from taxation, we must construe them strictly against the party claiming the exemption. See In re Tax Exemption Application of Mental Health Ass’n of the Heartland, 289 Kan. 1209, 1211, 221 P.3d 580 (2009). “Strict construction, however, does not warrant unreasonable construction.” In re Tax Application of Lietz Constr. Co., 273 Kan. 890, 905, 47 P.3d 1275 (2002).
K.S.A. 2010 Supp. 79-227 and K.S.A. 2010 Supp. 79-32,223(d)
K.S.A. 2010 Supp. 79-227 provides:
“(a) The following described property, to the extent herein specified, shall be exempt from all property taxes levied under tire laws of the state of Kansas: Any new qualifying pipeline property.
"(b) The provisions of subsection (a) shall apply from and after purchase or commencement of construction or installation of such property and for the 10 taxable years immediately following the taxable year in which construction or installation of such property is completed.
“(c) The provisions of this section shall apply to all taxable years commencing after December 31, 2005.
“(d) As used in this section:
(1) ‘New qualifying pipeline property’ means any real or tangible personal property purchased, constructed or installed for incorporation in and use as part of a new qualifying pipeline, construction of which begins after December 31, 2005.
(2) ‘Qualifying pipeline’ has the meaning provided by K.S.A. 2010 Supp. 79-32,223, and amendments thereto.”
K.S.A. 2010 Supp. 79-32,223(d) defines “qualifying pipeline” as follows:
“ ‘Qualifying pipeline’ means a pipeline which is located in this state, is used primarily for transportation of crude oil or natural gas liquids and has a length of more than 190 miles in this state and to which refineries or natural gas liquid processing facilities in this state have access.”
Application of K.S.A. 2010 Supp. 79-227 and K.S.A. 2010 Supp. 79-32,223(d)
It is undisputed that if the Cushing Extension is a “qualifying pipeline” as defined in K.S.A. 2010 Supp. 79-32,223(d), Keystone is entitled to a property tax exemption under K.S.A. 2010 Supp. 79-227 for the 10 taxable years following completion of the pipeline. Likewise, the parties agree that there are no genuine issues of material fact presented in this case. Rather, the dispute between the parties is over the interpretation of K.S.A. 2010 Supp. 79-32,223(d). Although both parties agree that the statute is unambiguous, their interpretation of its meaning differs dramatically.
According to the joint stipulation of the parties, “the-primary purpose of the Cushing Extension is the transportation of crude oil” and it is “more than 190 miles in length in the State of Kansas.” Moreover, the parties have stipulated that “[a]ll three Kansas refineries . . . will have access to the crude oil by means of existing pipelines that connect with the Cushing terminal'.” (Emphasis added.) Keystone contends—and COTA agrees—that this access is sufficient to justify a property tax exemption under K.S.A. 2010 Supp. 79-227. On the other hand, the Director contends that there must be direct access to the pipeline within the boundaries of Kansas to justify an exemption.
The Director concedes that Keystone has met the first three statutory requirements for a “qualifying pipeline” under K.S.A. 2010 Supp. 79-32,223(d). In particular, the Director agrees that the Cushing Extension is a pipeline that primarily transports crude oil and has a length of more than 190 miles in Kansas. But the Director asserts that Keystone has failed to meet the fourth statutory requirement for a “qualifying pipeline” because it has not shown that Kansas refineries have access to the pipeline within the boundaries of the State of Kansas.
We note that the legislature included the “in this state” language immediately following three of the four requirements for a “qualifying pipeline” under K.S.A. 2010 Supp. 79-32,223(d). Clearly, to meet the statutory requirements, the pipeline must be located in this state, at least 190 miles of the pipeline must be in this state, and refineries and natural gas liquid processing facilities in this state must have access. But notably missing from the statute is similar in this state language following the word “access.” We find this omission to be significant because the legislature obviously knew how to make an in this state requirement. See Richards v. Schmidt, 274 Kan. 753, 758, 56 P.3d 274 (2002) (“So long as it does not work to defeat clear legislative intent to the contrary, under the doctrine of expressio unius est exclusio alterius, we are to presume that when-legislation expressly includes specific terms, it also'intends to exclude those items not listed.”). Accordingly, we find that it is unlikely that the legislature’s omission of an in this state requirement following the word “access” was a mistake.
Even if we were to assume that the omission was a mistake by the legislature, it is simply not the role of courts to rewrite statutes—in particular those in which the parties agree are unambig uous. See Ft. Hays St. Univ. v. University Ch., Am. Ass’n of Univ. Profs, 290 Kan. 446, 464-65, 228 P.3d 403 (2010). Furthermore, “ ‘[t]ax statutes ■. . . should not be so read as to add that which is not readily found therein or to read out what as a matter of ordinary English language is in it.’ ” In re Tax Appeal of McKee, 19 Kan. App. 2d 43, 49, 861 P.2d 1386 (1993) (quoting In re Tax Appeal of Atcheson, Topeka & Santa Fe Ry. Co., 17 Kan. App. 2d 794, Syl. ¶ 5, 844 P.2d 756 [1993]). Here, only the legislature can add a requirement that Kansas refineries must have access to a “qualifying pipeline” in this state.
Hence, the plain and unambiguous language of tire statute requires that Kansas refineries have access to a “qualifying pipeline” transporting crude oil or natural gas liquids. The word “access” is defined as “[a] means of approaching, entering, exiting, communicating with, or making use of.” The American Heritage Dictionary 10 (4th ed. 2006). And the Kansas Supreme Court has defined “access,” albeit in other contexts, as the “ ‘freedom or ability to obtain or malee use of.’ ” State v. Allen, 260 Kan. 107, 114, 917 P.2d 848 (1996) (citing Webster’s New Collegiate Dictionary, 7 [1977]). Here, as the parties have stipulated, “Kansas refineries. . . will have access to tire crude oil [flowing through the Cushing Extension] by means of existing pipelines that connect with the Cushing terminal.” In other words, tire existing pipelines provide Kansas refineries a means of approaching and malting use of the Cushing Extension to obtain crude oil.
The Director claims that tire access requirement is meaningless if it permits an access point to a pipeline to be outside of the boundaries of Kansas. See State ex rel. Tomasic v. City of Kansas City, 237 Kan. 572, Syl. ¶ 3, 701 P.2d 1314 (1985) (holding that tax exemptions must “have a public purpose and promote the general welfare”). But even if the access point to a pipeline is outside this state, K.S.A. 2010 Supp. 79-32,223(d) serves a public purpose. The statute requires that those seeking the benefit of a property tax exemption provide Kansas refineries or natural gas liquid processing facilities the opportunity to make use of the crude oil or natural gas liquid that flows through the “qualifying pipeline” constructed or installed in the State of Kansas. Although requiring a direct connection to a “qualifying pipeline” by Kansas refineries would arguably benefit Kansans more, this is a question for the legislature and not for the courts. See O’Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 348, 277 P.3d 1062 (2012) (“[T]he legislature, unlike the judiciary, is one of the branches of government charged with development of public policy on behalf of the electorate . . . .”).
Conclusion
Applying a strict and reasonable interpretation of the plain language of K.S.A. 2010 Supp. 79-32,223(d), we find as a matter of law that direct access to a pipeline within the boundaries of Kansas is not required. To find otherwise would require us to rewrite the statute, which we have no authority to do. We, therefore, conclude that COTA properly granted Keystone’s application for a property tax exemption for the Cushing Extension under K.S.A. 2010 Supp. 77-227.
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Leben, J.:
Robert Uhlmann guaranteed die debt of a failed business. A jury decided that Jay and Cynthia Richardson did too, though drey had denied having done so. When the business failed, Uhlmann paid the remaining business debt and then sued the Richardsons for their share under two legal tiieories, contribution and unjust enrichment. The trial judge submitted die unjust-enrichment claim to a jury, and the jury ruled in Uhlmann’s favor.
The Richardsons have appealed, claiming that the unjust-enrichment claim shouldn’t have been submitted to a jury at all. We agree with them that only die more closely confined contribution claim fit the facts of this case. Under contribution rules long recognized in Kansas, each coguarantor must pay his or her proportionate share of the guaranteed indebtedness—not die much more uncertain measure of damages normally applied in unjust-enrichment cases.
The Richardsons’ victory on diis issue may be in name only, however, because Uhlmann cross-appealed to preserve his contribution claim in case we held that unjust enrichment didn’t apply. Because the jury determined tiiat the Richardsons did sign the guarantee of die business debt, the Richardsons are responsible— subject to one caveat—for dieir proportionate share of the debt they had guaranteed. And that amount is slightiy greater than the jury award.
The caveat is that Uhlmann’s contribution claim is a claim in equity, and the Richardsons claimed equitable defenses—defenses that could limit or eliminate Uhlmann’s recovery. The district court made no factual findings regarding those defenses, so we must remand the case to the district court for its determination on whether any equitable defense affects the Richardsons’ liability for contribution.
We also address one other issue on this appeal: The Richardsons contend that Uhlmann lost the ability to pursue his cross-appeal because Uhlmann first attempted to use court procedures to collect the judgment he had obtained against the Richardsons in the district court. But Uhlmann didn’t collect anything on the judgment; he merely filed a garnishment so as to force the Richardsons to file an appeal bond, staying collection efforts on appeal. A judgment creditor does not forfeit the right to appeal merely by engaging in collection efforts that collect no money, and we find that Uhlmann did not lose the ability to pursue his cross-appeal.
Factual Background
Michael Russell started and managed a self-storage business in Dallas, a business drat he got off die ground by borrowing $2.67 million in August 2004 from Great Southern Bank. The business was formed as a limited-liability company called Walton Walker U-Stor, LLC (Walker U-Stor). Loan documents from Great Southern Bank included several guarantors: Russell and his wife, Carol; Robert Uhlmann (personally and through a revocable trust); and Jay and Cynthia Richardson (personally and through their revocable trusts).
According to the documents, the Russells gave a written guarantee for $427,200, or 16% of the total loan. Uhlmann’s guarantee covered 60% of the loan, just over $1.6 million. And the Richard-sons guaranteed 24%, or $640,800.
The Richardsons denied having signed any guarantees. But at trial, the juiy was separately asked to determine drat question, and the jury found tiiat both of the Richardsons signed the guarantee agreements.
Even so, outside of the guarantees, the Richardsons clearly had a different relationship with Russell and with the business than Uhlmann did. Uhlmann and Russell had a long-standing friendship and had worked together on past business ventures, and Uhlmann was a part owner of Walker U-Stor. No formal agreement gave the Richardsons either an ownership interest or any other right to share in business profits.
Whether the Richardsons would have shared in business profits was never tested in practice. When Russell died in February 2009, the business was losing money, and the bank attempted to foreclose the loan. Uhlmann took over effective ownership and control of the business when Russell died; with the help of Carol Russell, Uhlmann sold Walker U-Stor s property for $2 million. Uhlmann agreed not to seek any payment from Carol Russell on her guarantee. After turning proceeds of the property sale over to the bank, a deficiency of $962,547.46 remained, and Uhlmann paid it. He then brought suit against the Richardsons for their share.
Two other sums were part of Uhlmann’s claims in the lawsuit.
First, Walker U-Stor took out an additional $200,000 loan from the bank in 2006, and Uhlmann signed a new guarantee for that amount. The Richardsons didn’t sign any new documents in 2006, and there’s no evidence they even knew of the additional loan. Their written guarantee covered renewals and substitutes for the original $2.67 million loan, but it didn’t provide a guarantee of additional indebtedness. Still, Uhlmann sought contribution from tire Richardsons for 24% of die entire deficiency to the bank, which included whatever was attributable to the original loan as well as whatever might be attributable to the additional $200,000 loan taken out in 2006.
Second, Uhlmann incurred $18,684.50 in attorney fees in selling die remaining property of Walker U-Stor so that the proceeds could be paid to the bank. Uhlmann also sought to assess 24% of that amount against the Richardsons.
A jury trial was held in September 2010. After the first day of trial, Uhlmann’s counsel said that he would proceed on the equitable-contribution theory, though he also said that unjust enrichment might apply to the request that the Richardsons pay part of the $18,684.50 in attorney fees. Later, after the court had prepared jury instructions to submit the case to the jury under an unjust-enrichment dieoiy, Uhlmann’s counsel said that he was “willing to go forward on our equitable contribution claim,” recognizing that equitable claims are decided by the court, not a jury. But he added that the Richardsons had requested a juiy trial and that the question of whether the Richardsons had signed the guarantee agreement was a jury question.
The district judge then said that the case still would be presented to tire juiy under the unjust-enrichment theory: “Now I’m not go ing to make these folks sit through an entire trial because you’re [now] going to decide to sort of lack the [unjust-enrichment] theory loose. . . . [A]t this point, it’s going to them on unjust enrichment.” Uhlmann’s counsel replied, “All right,” and the parties agreed upon an additional question that the jury would answer as to whether the Richardsons had signed a guarantee. The Richardsons objected to submitting the case under an unjust-enrichment theory and to the jury instructions about that legal theory.
The jury found that the Richardsons had signed a guarantee agreement, and the juiy also ruled in favor of Uhlmann on the unjust-enrichment claim. As damages, Uhlmann had sought 24% of the $981,231.96 he had paid (an amount that comprised the total deficiency to the bank, $962,547.46, plus tire attorney fees incurred in selling Walker U-Stor’s property, $18,684.50), or $235,495.67. The jury awarded $182,165 in damages, and the district court entered judgment in that amount. Apparently because recovery on an alternate legal theory was not needed, the court’s journal entry of judgment denied Uhlmann’s claim for equitable contribution.
After the entry of judgment, Uhlmann had garnishment orders issued to a bank at which the Richardsons were thought to have one or more accounts. After that, the Richardsons posted a cash appeal bond (known as a supersedeas bond) of $230,000; the district court then stayed further proceedings to collect on the judgment, as authorized by K.S.A. 60-262(d). No money was collected through the filing of these garnishments.
Both parties have appealed to this court. The Richardsons contend on appeal that the district court should not have submitted an unjust-enrichment claim to tire jury. Uhlmann argues in his cross-appeal that even if an unjust-enrichment claim wasn’t appropriate, Uhlmann was entitled to recover under the equitable-contribution theory for the Richardsons’ pro rata share of the deficiency to the bank. Uhlmann also argues that the jury award for unjust enrichment was proper.
Usage Note
Lest we risk confusion over one aspect of legal word usage that comes up in this opinion, we offer this note. Traditionally, and especially in British legal usage, there were two words used to describe the situation where one person agreed to be responsible for a debt: used as a noun, it was a “guaranty,” but used as a verb, it was “guarantee.” Today, guarantee is more commonly used both as a noun and as a verb. See Garner, Garners Dictionaiy of Legal Usage 399 (3d ed. 2011). We have used guarantee in this opinion, but you will sometimes see guaranty when we have quoted from or cited to another’s work. We note as well that the document signed by the Richardsons in this case was titled, “COMMERCIAL GUARANTY.” However spelled, we are all talking about the same thing.
Standards of Review on Appeal
Whether one party can recover damages from another based on the legal theory of unjust enrichment presents a legal question that we must decide independently, without any required deference to the district court. T.R., Inc. of Ashland v. Brandon, 32 Kan. App. 2d 649, 655, 87 P.3d 331 (2004). We also exercise independent review in the determination of whether the legal rules of equitable contribution apply and, if so, how to apply them. There are no factual disputes that affect these determinations given the jury’s finding that the Richardsons signed the guarantee agreement. We therefore determine the rules of equitable contribution and apply them as a matter of law, independently and without any required deference to the district court. See, e.g., Emprise Bank v. Rumisek, 42 Kan. App. 2d 498, 504, 215 P.3d 621 (2009); Downriver Com. Fed. Credit U. v. Penn Square Bank, 879 F.2d 754, 758 (10th Cir. 1989).
We also must address the Richardsons’ contention that Uhlmann waived his right of appeal by acquiescing in the judgment. That presents a question of our jurisdiction on appeal; that too is a legal question that we determine independently. Alliance Mortgage Co. v. Pastine, 281 Kan. 1266, Syl. ¶ 2, 136 P.3d 457 (2006).
Analysis
I. The Generic Rules for Unjust-Enrichment Claims Do Not Apply Here Because More Specific Ones for Contribution Do.
The first issue in our appeal presents an odd battle. Uhlmann argues that the legal theory of unjust enrichment fits these facts, while the Richardsons claim that the relationship of coguarantors is governed by the law of contribution and the rules of suretyship, which apply when parties agree to be liable for another’s debt. Uhlmann defends the jury’s verdict in his favor on an unjust-enrichment theory; as a back-up argument, Uhlmann contends that if unjust enrichment isn’t the right basis for his claim, he should still win on an equitable-contribution claim. Meanwhile, the Rich-ardsons argue that the case shouldn’t have been submitted to the jury on that theoiy at all. And as to contribution; the Richardsons point out that the district court entered judgment in dieir favor on the contribution claim.
But the way the parties have argued these legal theories hides the relationship between them. A contribution claim is based upon concepts of unjust enrichment. The law on contribution simply represents a specific application of more general unjust-enrichment principles.
Perhaps the best recognition of this comes in the Restatement (Third) of Restitution and Unjust Enrichment, published in 2011. Its authors recognized that the American Law Institute had already published the Restatement (Third) of Suretyship and Guaranty in 1996. So even though the law of contribution is based on unjust-enrichment principles, the Restatement on Restitution and Unjust Enrichment doesn’t cover it because it has already been addressed in detail elsewhere:
“Some important topics in restitution receive more comprehensive treatment in other Restatements. Where they have not been specified by contract, the characteristic remedies of the law of suretyship (exoneration, indemnification, subrogation, and contribution) all enforce a liability founded on unjust enrichment, but the present Restatement does not duplicate the more specialized treatment of Restatement Third, Suretyship and Guaranty.” Restatement (Third) of Restitution and Unjust Enrichment § 1, comment g (2011).
The problem here is that more detailed rules have been stated for contribution between coguarantors, while the general rules for unjust enrichment are left quite broad so that they may be applied in a variety of situations. The more detailed rules for contribution between coguarantors tell us that “ [contribution must be equally and ratably made” so that each guarantor shares based upon the guarantor s share of the debt. Kee v. Lofton, 12 Kan. App. 2d 155, 159, 737 P.2d 55 (1987). On the other hand, as reflected in the jury instructions used in our case, the determination of damages is more amorphous in the ordinary unjust-enrichment case. See Leathers v. Leathers, No. 08-1213-WEB, 2010 WL 1936137, at *19 (D. Kan. 2010) (unpublished opinion) (stating that the measure of damages for unjust enrichment is “the value of the benefit conferred”); PIK Civ. 4th 124.17 (stating that the measure of damages for unjust enrichment is “the reasonable worth” of what was provided under “reasonable expectation of being compensated”).
Here, our jury was told to determine “the reasonable amount” of Walker U-Stor’s debts paid “either directly or indirectly” by Uhlmann or his trusts “that should be paid” by the Richardsons to Uhlmann. The jury was also told that “[wjhere a party contributes more than a party’s share of another’s debt and has a reasonable expectation of being compensated, the one benefited is responsible for paying the reasonable amount of the debt.” The jury then awarded $182,165, an amount that we can’t explain and can’t tie in any way to the more detailed rules for contribution among guarantors, where the contribution “must be equally and ratably made.” See Kee, 12 Kan. App. 2d at 159.
In a case like ours, which involves a claim for contribution among coguarantors, liability and damages must be determined under the special rules applied to that situation. These rules are based on unjust-enrichment notions, and unjust-enrichment cases may provide some useful guidance. But the case cannot be submitted to a jury under generic instructions that call for the award of a “reasonable amount” or that call for liability only when there is “a reasonable expectation of being compensated.” The law of contribution imposes an implied agreement on the parties if they have not explicitly agreed otherwise, and the law of contribution also determines—with fixed rules—the extent of that obligation. See Kee, 12 Kan. App. 2d at 159. We conclude that this case should not have been submitted to the jury under a generic unjust-enrichment legal theory.
We should add that there is no issue before us about a party’s right to trial by jury. Whether the Richardsons signed the guarantee agreement was submitted to the jury, and neither the decision to do so nor the jury’s verdict on that question have been challenged on appeal. As to any potential remand, neither party has suggested further jury proceedings: the Richardsons have argued that the equitable-contribution claim didn’t present a jury question, and Uhlmann has not suggested on appeal that any remand would require a further jury trial. As we will discuss below, the damages due based on a contribution claim among tíre cog-uarantors here are capable of determination from the undisputed evidence, subject to any equitable defenses.
II. Subject to Any Equitable Defenses, the Richardsons Are Liable to Uhlmann for Their Pro Rata Share of the Loan Deficiency.
We turn next to Uhlmann’s argument that he is still entitled to recover against the Richardsons under an equitable-contribution theory. We have two primaiy questions to sort through here. First, does an equitable-contribution theory apply at all? Second, if it does, what amount do the Richardsons owe?
That second question becomes complicated, though, because—■ as the name “equitable contribution” implies—the right of one guarantor or surety to get contribution from a coguarantor or co-surety is an equitable one and thus subject to various equitable defenses. See generally Restatement (Third) of Suretyship and Guaranty § 56 (1996); Alces, The Law of Suretyship & Guaranty § 5:5 (2012). These defenses might affect the amount of any recovery; they could even eliminate the recovery altogether. We will set aside consideration of any defenses until we have first determined what the equitable-contribution rules would provide in the absence of a viable equitable defense.
We must address one other preliminary question up front. The district court’s written judgment entered judgment against Uhlmann on the equitable-contribution claim: “The Court takes up plaintiff s claim of equitable contribution and denies said claim, thereby resolving the sole remaining issue in the case.” The Rich-ardsons urge that this be treated, as it appears to be, as a judgment on the merits against this claim. If so, we would reverse only if the district court abused its discretion in ruling against Uhlmann on the merits of his equitable claim, see Fleetwood Enterprises v. Coleman Co., 37 Kan. App. 2d 850, 864-65, 161 P.3d 765 (2007), something that would be hard to do here.
But we do not believe the district court ruled on the merits. The court made no oral pronouncements that it had rejected the equitable-contribution claim on its merits. When discussing whether to submit the unjust-enrichment claim to the jury, the court said of the equitable-contribution claim that it would “set that aside” for later consideration and that the jury verdict “may abrogate the need for [the court] to even look at equitable contribution.” We acknowledge that the court also said that “the claim for equitable contribution is extremely thin,” but that was a comment made before the jury concluded that the Richardsons had signed the guarantee. We also recognize that a district court’s journal entry of judgment in a civil case controls over its prior oral statements from the bench. Steed v. McPherson Area Solid Waste Utility, 43 Kan. App. 2d 75, 87, 221 P.3d 1157 (2010). Here, though, the district court’s written denial of the equitable-contribution claim is consistent with its earlier statement that the jury verdict “may abrogate the need” for the court even to consider equitable contribution. After that jury verdict, the court appears to have considered the equitable-contribution claim only as an alternative legal theory that was no longer needed given the jury award for unjust enrichment. Only after that verdict did the court “deny” the equitable-contribution claim—without making any factual findings that would support a merits ruling to that effect.
We proceed then to determine whether an equitable-contribution theory fits our facts, and it is a perfect fit: “The right to contribution ... is based on an implied agreement that if the guaranty is enforced, each guarantor will contribute his or her just proportion of the amount for which he or she might be held hable.” Kee, 12 Kan. App. 2d at 159. That contribution “must be equally and ratably made,” 12 Kan. App. 2d at 159, something that is easily done here.
Uhlmann had guaranteed 60% of tire bank loan but paid 100% of the loan deficiency to the bank. The Richardsons had guaranteed 24% of the loan, so their share would be 24% and that share can be easily calculated.
To do so, we first remove two items that the Richardsons neither guaranteed payment of nor agreed to pay: the additional $200,000 loan Walker U-Stor obtained in 2006 and the $18,684.50 in attorney fees Uhlmann incurred in selling the remaining property of Walker U-Stor (property sold so that the proceeds of that sale could be paid to the bank).
We subtract the $200,000 loan later obtained by Walker U-Stor based on the fact that much more than $200,000 was still owed when Walker U-Stor ceased doing business and on the assumption that loan payments went first to pay the original note, not the additional $200,000 loan. See State v. Guaranty Co., 81 Kan. 660, Syl. ¶ 5, 106 P. 1040 (1910) (applying first-in, first-out rule to payments on multiple debts without advance agreement on how to apply payments); In re Gibson, 16 B.R. 257, 268-69 (Bankr. D. Kan. 1981) (same). The Richardsons’ guarantee covered the original $2.67 million note and “renewals” or “substitutions” for that note; it had no provision covering additional advances made to Walker U-Stor.
As to the attorney fees, such fees are ordinarily not recoverable under the “American rule” unless the parties specifically agree or a statute provides for the recovery of attorney fees. Robinson v. City of Wichita Retirement Bd. of Trustees, 291 Kan. 266, 279, 241 P.3d 15 (2010). Here, there was no agreement under which the Richardsons would pay Uhlmanris attorney fees related to selling Walker U-Stor’s property. In addition, there was no evidence that the Richardsons had notice that Uhlmann was incurring these fees and would be seeking reimbursement for them. See Restatement (Third) of Suretyship & Guaranty § 55, comment c (1996) (noting that right to reimbursement of reasonable expenses in conjunction with performing duties as guarantor depends upon notice to co-surety).
Subtracting those amounts from the $981,231.96 Uhlmann paid leaves $762,547.46, and 24% of that amounts to $183,011.39. Subject to any equitable defenses, that would be the Richardsons’ con-tributive share.
We should add that the rule we cited from Kee applied equitable contribution when “the guaranty is enforced,” while here Uhlmann made good his guarantee without waiting for the bank to sue him. The Richardsons do not suggest that this makes a difference, and we conclude it does not. Kee also noted that the right to seek contribution arises when “a guarantor has paid more than his or her share.” 12 Kan. App. 2d 155, Syl. ¶ 5. If one coguarantor malees payment for more than his or her share, that party- has a right of contribution against other guarantors. See Restatement (Third) of Suretyship & Guaranty § 55 (1996).
We turn last to the subject of equitable defenses. The Richard-sons asserted several defenses, including ones based on acts Uh-lmann took in wrapping up Walker U-Stor’s business affairs. If Uhlmann did something that resulted in increased liability to the Richardsons, it could provide an equitable defense. But deciding that issue would require making factual findings and then exercising the discretion given to die trial court when considering equitable claims. Those are the functions of the trial court, not an appellate court.
We therefore remand the equitable-contribution claim to the district court for its further consideration. If the court finds no equitable defenses were proven (then Uhlmann is entitled to judgment for $183,011.39. If the -court finds that equitable defenses were proven, then it must make appropriate factual findings and exercise its discretion over this equitable claim.
III. Uhlmann Did Not Lose His Right to Appeal by Getting the Richardsons to Rost an Appeal Rond Rut Not Collecting Any Money on the Judgment.
The Richardsons contend that Uhlmann lost his right to appeal when he issued garnishment orders trying to collect on the judg ment—even though no funds have yet been collected. A party’s voluntary acceptance of the benefits or burdens of a judgment generally constitutes acquiescence in the judgment and eliminates the right of appeal. Hemphill v. Ford Motor Co., 41 Kan. App. 2d 726, Syl. ¶ 1, 206 P.3d 1 (2009). Thus, if a party actually collects money obtained through a judgment, the party who collected funds—and thus accepted a benefit from the judgment—loses the right to appeal. Hemphill, 41 Kan. App. 2d at 728-29.
But here, Uhlmann collected no funds. Once he filed the garnishment, the Richardsons filed a cash appeal bond and the district court stayed further proceedings to collect on the judgment while the appeal was ongoing.
The Richardsons have cited one of our court’s past decisions, Almack v. Steeley, 43 Kan. App. 2d 764, 230 P.3d 452 (2010), in support of their argument that Uhlmann lost his right to appeal, and we agree that Almack supports them. The facts in Almack are not materially different than those we face: in Almack, the judgment creditor issued a general order in aid of execution that collected nothing, while here Uhlmann issued a garnishment that collected nothing. The Almack court concluded that tire judgment creditor had acquiesced in the judgment and lost the right to appeal. 43 Kan. App. 2d at 776.
But we have concluded that the result in Almack was not required by any of the precedents it considered and is contrary to sound policy arguments. This is an important conclusion because panels of the Kansas Court of Appeals are not bound by prior rulings of another panel. State v. Urban, 291 Kan. 214, 223, 239 P.3d 837 (2010). While we must carefully consider each precedent cited to us, we also must uphold our duty to correctly determine the law in each case that comes before us. In doing so, we sometimes find that we must respectfully disagree with the opinion of another panel.
The Almack court recognized that most courts hold that a judgment creditor must actually receive some tangible benefit—like collecting part of the money owed—to be deemed to have acquiesced in a judgment so as to lose tire right to appeal. 43 Kan. App. 2d at 771-73; see DiFrancesco v. Particle Interconnect Corp., 39 P.3d 1243, 1247 (Colo. App. 2001) (“Most courts that have considered the issue . . . deny an appeal only when the party has received some benefit of tangible value under the judgment. . . .”). But it concluded that Kansas precedents put us in a more restrictive posture in which even a failed attempt to collect money on the judgment forfeits appellate rights. 43 Kan. App. 2d at 773-75. Then-Judge Nancy Caplinger (now Justice Nancy Moritz) dissented, 43 Kan. App. 2d at 776-78, and we agree with her that none of the published precedents cited by the Almack court called for a Kansas court to enforce such an aggressive version of the acquiescence doctrine.
The published cases relied upon by the Almack majority were McDaniel v. Jones, 235 Kan. 93, 95, 679 P.2d 682 (1984); Tice v. Ebeling, 238 Kan. 704, 713, 715 P.2d 397 (1986); and Harsch v. Miller, 288 Kan. 280, 200 P.3d 467 (2009). None of these cases require the result reached in Almack and urged in this case by the Richardsons.
The Almack majority said it “reified] heavily” on McDaniel. Almack, 43 Kan. App. 2d at 774. But the McDaniel court recognized that the acquiescence rule is a form of implied waiver of a party’s rights, something that shouldn’t be done lightly. Thus, the court noted the general “rule that a waiver is not implied from measures taken by an appellant in defense of and to protect his rights or interest.” 235 Kan. at 104; accord Alliance Mortgage Co., 281 Kan. at 1271-72; Bank IV Wichita v. Plein, 250 Kan. 701, Syl. ¶ 6, 830 P.2d 29 (1992). That’s what Uhlmann has done here: he garnished the Richardsons’ bank accounts to spur them to file an appeal bond, which protects Uhlmann’s ability to collect the judgment after the appeal. The McDaniel court found acquiescence, but that situation isn’t analogous to ours. Acquiescence was found in McDaniel because the judgment creditor in a foreclosure action forced sale of the property while tire appeal was pending. That judgment creditor gained a tangible benefit; Uhlmann did not.
Neither Harsch nor Tice compels the result reached by the Almack court, either.
The Almack court’s citation of Harsch was merely to “distinguish cases where the actions of the acquiescing party were done invol untarily.” Almack, 43 Kan. App. 2d at 773; see Harsch, 288 Kan. at 292 (noting that only voluntary compliance with the judgment constitutes acquiescence). Indeed, if a party is forced by its opponent to take an action consistent with the judgment, that doesn’t constitute acquiescence. So if a party’s bank account is garnished by the other party, the party whose funds have been involuntarily taken through garnishment hasn’t acquiesced in the judgment. Younger v. Mitchell, 245 Kan. 204, 207-08, 777 P.2d 789 (1989); Van Nguyen v. Ortiz, No. 94,884, 2007 WL 881848, at *4 (Kan. App. 2007) (unpublished opinion). But that rule doesn’t tell us whether a party who voluntarily takes some action toward enforcing the judgment—but receives no money or property—should be deemed to have acquiesced in the judgment so as to lose appellate rights.
The acquiescence ruling in Tice was merely that an attorney waived the right to appeal a trial court’s evidentiary ruling during trial. The attorney contended that a witness’ testimony varied from what he’d said in a deposition, and the court offered a recess to let the attorney check the deposition transcript. The attorney elected to proceed, which our Supreme Court held waived any right to appeal on limits the court imposed on cross-examination. 238 Kan. at 712-13. In making this ruling about an evidentiary issue, the court did say that “anything which savors of acquiescence in a judgment cuts off the right of appellate review.” 238 Kan. at 713. But reading those words to require a finding of acquiescence in our case would give those words a meaning they certainly did not bear in Tice.
More importantly, we are convinced that there are good reasons in support of what Almack conceded was the majority rule, under which some tangible benefit of the judgment must be received before the party’s appellate rights will be taken away. To place this into context, we need to consider three underlying aspects of the situation we are considering—what it normally takes to collect a judgment, what it normally takes to appeal a judgment, and what it normally takes before we declare the implied waiver of important rights.
One of the surprises litigation holds for most laypeople is that getting a money judgment against someone is just the first step. Nothing happens automatically to get the judgment debtor to pay up. Instead, the judgment creditor must go out and collect it, and statutes provide a variety of options to the judgment creditor to try to do so. If the judgment creditor can find out where the judgment debtor has a bank account, that account can be garnished for its current balance, up to a bit more than the judgment amount (to allow for interest and costs of the suit). See K.S.A. 60-731, 60-733. If the judgment debtor earns wages, those wages can be garnished—subject to statutory limits on wage garnishments. See K.S.A. 60-734. If the judgment creditor doesn’t know where to go to find funds or property of the judgment debtor, then the judgment debtor can be called into court for an examination under oath “in aid of execution.” See K.S.A. 60-2419. The process of collecting a judgment can be a difficult one, and often parties who become judgment debtors have diminishing assets and more tiran one creditor.
In the meantime, one of the parties in the case—either the judgment debtor or judgment creditor—may want to appeal some ruling made by the district court. The rules allow tire judgment debtor who appeals to get a stay of execution on the judgment (preventing collection efforts) by posting a bond approved by the court. See K.S.A. 60-262(d). The bond is called a supersedeas bond, and it suspends the judgment creditor’s authority to collect on the judgment. See Black’s Law Dictionary 1576 (9th ed. 2009).
Let’s turn next to how an appeal normally works. Most civil cases come on appeal to the Kansas Court of Appeals, and it takes about a year from the time an appeal is filed to when it is heard on one of our dockets, with a decision rendered soon after. But a party may request further review by the Kansas Supreme Court, something that’s discretionary. If our Supreme Court decides to hear the case, that will add at least another year before the case is set on a docket, heard, and decided.
So if a judgment creditor can take no action at all other than asking if the judgment debtor might want to consider filing a su-persedeas bond, then the judgment creditor will be unprotected for perhaps 2 years or more. And not many judgment debtors will post a supersedeas bond when the judgment creditor s inquiry is,' “We’re not going to engage in any effort to collect the judgment so that we don’t waive our appellate rights, but would you mind posting a supersedeas bond while the appeal is pending to protect our right to collect the judgment?” The only effective means a judgment creditor has to spur the judgment debtor into filing an appeal bond—which protects the judgment creditor’s right to collect tire judgment while tire appeal goes on—is by taking some action toward execution on the judgment.
Finally, let’s consider acquiescence for what it is—an implied waiver of rights. The acquiescence doctrine is based on the concept that a party who acquiesces in a judgment “impliedly waives” the right to appeal it. In re Estate of Hill, 179 Kan. 536, Syl. ¶ 1, 297 P.2d 151 (1956); Harmon v. James, 146 Kan. 205, 207-08, 69 P.2d 690 (1937); see generally 36 C.J.S., Federal Courts § 419 (noting drat a party who acquiesces in judgment’s validity “impliedly waives” right to appeal). Since implied waivers aren’t favored, acquiescence should be found only when the party’s actions “ ‘clearly and unmistakably show an inconsistent course of conduct or an unconditional, voluntary and absolute acquiescence.’ ” James v. Amrine, 157 Kan. 397, 403, 140 P.2d 362 (1943) (quoting 4 C.J.S., Appeal and Error § 212, p. 397); see generally Orgeron v. Sec. Indus. Funeral Homes, 690 So. 2d 243, 245 (La. App. 1997) (“Appeals are favored in law and forfeiture of a party’s right to an appeal through acquiescence should be decreed only when the party’s intention to acquiesce and to abandon his right of appeal is clearly demonstrated.”); 4 C.J.S., Appeal and Error § 275 (citing the rule quoted above in James); 5 Am. Jur. 2d, Appellate Review § 578 (“The loss of a party’s right to appeal through acquiescence should be decreed only when the party’s intention to abandon the right of appeal is clearly demonstrated.”).
In context, then, we conclude that there is no sound policy reason to deem a judgment creditor to have waived its appellate rights merely because it has sufficiently invoked collection procedures so as to spur the judgment debtor into posting an appeal bond-—when no money has been collected and no property sold to partially sat isfy the judgment. We recognize that this results in a practical choice to be made by the judgment debtor when, as here, the judgment creditor garnishes a bank account. Had the Richardsons allowed Uhlmann to collect money from the garnished account, that presumably would have resulted in Uhlmann losing his appellate rights through acquiescence under Kansas law because he would have received a tangible benefit from the judgment through partial collection on the judgment. And that would not have affected the Richardsons’ appellate rights because the funds would have been taken from them involuntarily. See Younger, 245 Kan. at 207-08; Van Nyugen, 2007 WL 881848, at *4.
This may mean that judgment creditors who have issues to take up on appeal may want to start with a collection effort that’s not likely to garner immediate funds, like an aid-in-execution hearing or mere issuance of a general order of execution to the sheriff (which is usually returned unsatisfied). Those are choices for the parties to make in each case. The question before us is whether the mere issuance of some execution on a judgment should be deemed an implied waiver of appellate rights when no funds are collected and an appeal bond is posted. We see no policy reason to do so and find no published Kansas appellate opinion requiring us to do so. All that Uhlmann did here was to cause the Richardsons to post a supersedeas bond, which protected Uhhnann’s rights (as well as the Richardsons’) pending conclusion of the appeal. And acquiescence is not to be implied from actions a party takes to protect its rights. Alliance Mortgage Co., 281 Kan. at 1271-72; Plein, 250 Kan. 701, Syl. ¶ 6; McDaniel, 235 Kan. at 104; 4 C.J.S., Appeal and Error § 275. We therefore conclude that Uhlmann did not acquiesce in the judgment so as to waive his appellate rights.
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|
McAnany, J.:
Continental Plastic Containers and its insurance carrier, American Home Assurance Company, appeal the decision of the Workers Compensation Board awarding claims to Carol Messner in two separate workers compensation cases.
In Messner’s first claim, Docket No. 253,153, Messner sought compensation for injuries she sustained as a result of a fall which occurred on July 18, 1999. Messner claimed that her disability increased from a functional impairment to a work disability when she left her employment with Continental. Thus, she sought an award of functional disability followed by an award of general disability, or work disability.
In her second claim, Docket No. 261,143, Messner alleged that she received additional injuries to her right shoulder from repetitive job duties she performed for Continental after returning to work following her fall.
On October 21, 2011, the Board determined that both of Mes-sner s alleged injuries were work related and awarded compensation for both claims.
Continental raises three issues. First, Continental challenges the award of work disability in Docket No. 253,153, asserting that K.S.A. 44-510e(a) prohibits an award of work disability because Messner’s award for functional disability would have been paid in full before she became eligible for work disability upon leaving her employment. Continental relies on the language in K.S.A. 44-510e(a) that states: “The resulting award shall be paid for the number of disability weeks at the full payment rate until fully paid or modified.” We disagree with Continental’s analysis. The Board found that Messner showed an increase in disability during the 415-week benefit period provided for in K.S.A. 44-510e(a). Thus, the Board had the authority to enter a lump-sum award that provided benefits for Messner’s functional disability as well as her later work disability, both of which occurred as a result of her work related injury.
The remaining two issues relate to the Board’s award in Docket No. 261,143. First, Continental appeals the Board’s finding that Messner’s shoulder injury arose out of and in the course of her employment. Our examination of the record discloses substantial evidence to support this finding by the Board. Next, Continental claims the Board erred in awarding Messner temporary total disability (TTD) compensation from April 26, 2001, to December 13, 2002, because Messner’s list of work restrictions was not from an authorized treating physician. We agree with this contention. Mes-sner’s work restrictions that led to her leaving her employment were imposed by her personal chiropractor, not by an authorized treating physician. No authorized treating physician found that Messner experienced temporary total disability during the relevant time period as required by K.S.A. 44-510c(b)(2).
Factual and Procedural Background
The protracted factual and procedural history of this case extends from July 1999 to November 2011. We will provide a full narrative of the relevant events.
On July 18, 1999, Messner was working for Continental, a manufacturer of plastic bottles, as a factory line inspector when she tripped and fell. She landed on her left leg and hip, and her left arm jammed into her ribs. She felt her neck snap and was in immediate pain. She attempted to finish her shift, but she left work before her shift was over.
Messner notified Continental of her injury, and she was sent to tire Shawnee Mission Urgent Care facility where she was diagnosed as having sustained contusions to her left arm, elbow, wrist, knee, and anide. Messner s pain persisted, and she was provided additional medical treatment and physical therapy. In addition to her work-related injuries, an MRI revealed that Messner had a preexisting degenerative disc disease.
On January 27, 2000, Continental sent Messner to Dr. Ira Fish-man, who examined Messner and found “mild residuals of cervical, thoracic, and lumbar strains, as well as contusions to her left upper and lower extremities.” Dr. Fishman referred Messner for a functional capacity evaluation (FCE) to determine whether she could meet the physical demands of her employment. After receiving tire results of the evaluation, Dr. Fishman gave a recommendation for Messner
“to return to work in die light physical demand category, with a maximum lifting of 15 pounds on an occasional basis, as well as performance of positional activities on an occasional basis, and standing and walking on a frequent basis. However, it was noted in the summary of this FCE that ‘based on self-limiting behaviors, demonstrated performance should be considered the minimum she is capable of functioning [at] the present time.’... Messner did self-limit on positional activities due to reported complaints of mid, upper, and lower back pain and therefore because of this self-limiting behavior, the actual functional assessment was not a true reflection of her full capabilities.”
Dr. Fishman opined that Messner had reached maximum medical improvement (MMI) and was not in need of further physical therapy treatments or medical intervention. Dr. Fishman believed that Messner’s soft tissue injuries would resolve with time and that she had not sustained any permanent partial impairments as a result of her fall. Dr. Fishman concluded:
“In terms of Ms. Messner’s return to work status, even with her identified self-limiting behavior on the [FCE], she is functioning quite close to her regular job duty physical demands. Since it has been identified on the FCE report that the results of this test may not be a true reflection of Ms. Messner’s actual physical capabilities due to her self-limiting behavior, it is my opinion at this time that Ms. Messner can return to her regular job duties without restrictions. It is my impression that Ms. Messner is capable of tolerating light duty work and I am, therefore, releasing her to her regular job duties without restrictions, effective on Monday (February 14, 2000).”
On February 16, 2000, Messner returned to work without restrictions to her previous position of line inspector. Messner had been off work from July 18, 1999, until February 16, 2000. The parties have stipulated that Messner was paid TTD benefits for the weeks she was off work for these injuries.
Messner continued to experience pain and various other symptoms from her injury. She testified that she did not feel that she was physically ready to go back to work because “I just was still hurting too much and I just couldn’t do it.” She claimed she was unable to do her job because of pain “from my shoulders and my neck and down through my right shoulder and my upper back, then right on down into my hip area, and then I still had the problems with the left thigh and down into the left knee.” She claimed she was unable to do “the pulling or the pushing and the squatting and bending” required of a line inspector. She said she was unable to work full days and took vacation time or “would go home with points.” Messner described her position as a line inspector as the lightest job available to her at Continental.
During her first week back to work, Messner’s attorney referred her to Dr. Edward Prostic for an evaluation. Dr. Prostic examined Messner on February 18, 2000, and found that she was suffering from “chronic sprains and strain superimposed upon preexisting degenerative disc disease in the low back.” Dr. Prostic recommended additional medical treatment and job restrictions, stating that Messner should avoid lifting more than “25 pounds occasionally, 10 pounds frequently, or 5 pounds constantly.” Dr. Prostic also stated that Messner should avoid frequent bending or twisting at the waist, forceful pushing or pulling, use of vibrating equipment, and working in a captive position. He found Messner’s permanent partial impairment rating to be 15% to the body as a whole on a functional basis. Messner did not mention complaints about her right shoulder to Dr. Prostic at this time.
In March 2000, Messner filed her first workers compensation claim, Docket No. 253,153. She alleged that the July 18, 1999, fall caused various work-related injuries.
After Messner reported the worsening of her physical condition to Continental, the administrative law judge (ALJ) sent Messner to Dr. Scott Luallin for an examination, which took place on August 28, 2000. Dr. Luallin noted in his report that his evaluation was to include an impairment rating and appropriate work restrictions. Dr. Luallin suggested certain work restrictions, such as limitations on lifting, using good lifting techniques, 'and avoiding forceful pushing or pulling. Dr. Luallin found Messner s functional impairment rating to be 10% to the body as a whole.
In November 2000, Messner filed a second workers compensation claim, Docket No. 261,143, alleging aggravation of her condition each and every working day from August 29, 2000, tire day after she was evaluated by Dr. Luallin.
Messner had a follow-up visit with Dr. Prostic on February 12, 2001. Messner continued to complain of pain in her neck and back. She had also developed right carpal tunnel syndrome and right rotator cuff tendinitis. Dr. Prostic stated that the rotator cuff tendinitis and the right carpal tunnel syndrome were caused or contributed to by the work Messner performed for Continental each day beginning on August 29,2000. Dr. Prostic concluded that Mes-sner was suffering from a 20% impairment to the body as a whole, 15% from injuries resulting from the first accident, and an additional 5% for injuries to her upper right shoulder.
Messner claimed that her condition continued to deteriorate. She testified that her right shoulder would pop and a pain would shoot down her arm, sometimes causing her to lose control over her right hand. She continued working until April 25, 2001, when she delivered a note from her personal chiropractor with a list of work restrictions that Continental was unable to accommodate.
Beginning on September 10, 2001, Messner was examined and treated by Dr. Terrence Pratt, a board certified physical medicine and rehabilitation specialist. Messner came to court several times in an attempt to obtain authorization for medical treatment by Dr. Pratt. Dr. Pratt’s notes from his initial examination identify the July 1999 fall as Messner s only work-related injuiy; however, Messner mentioned to Dr. Pratt that she was experiencing symptoms in her right shoulder and into her right extremity. After treatment was approved, Messner returned to Dr. Pratt for water therapy.
On December 13, 2002, Dr. Pratt concluded that Messner had reached MMI and should be released from his care. Dr. Pratt testified that he believed that Messner should be able to return to work in the sedentary or light physical demand levels of work.
Dr. Pratt last examined Messner on August 11, 2003, when he was asked to assess Messner for restrictions. Dr. Pratt believed that Messner was able to return to some form of substantial gainful employment in the open labor market if she was limited to sedentary and light physical work. Dr. Pratt did not link Messner’s right upper extremity complaints to her July 18, 1999, accident, but he did not have any new claims of injury in the history given to him. On cross-examination, Dr. Pratt affirmed that he was not requested to address causation in his evaluation of Messner.
On November 10, .2003, Dr. Prostic found that Messner continued to have evidence of strain and sprain to her neck and back, trochanteric bursitis, rotator cuff disease of the right shoulder, and right carpal tunnel syndrome. Dr. Prostic increased his rating of Messner s impairment to the body as a whole to 24%. Of that 24%, Dr. Prostic attributed 15% impairment for the neck and back and 9% impairment to the whole body for the right upper extremity. Dr. Prostic reported that the cause of Messner s rotator cuff tendinitis was the repetitious lifting, pushing, and pulling that she performed during the.final stage of her employment with Continental.
Dr. Craig Satterlee, a shoulder specialist, performed surgery to Messner s right shoulder on August 14, 2007, to repair the right rotator cuff. Dr. Satterlee found a 14% impairment to the right shoulder as a result of his surgical repair. Messner was released with restrictions on July 14, 2008. Dr. Satterlee found Messner to be at MMI on September 16, 2008.
Dr. Prostic reexamined Messner on July 21,2008. He found that Messner continued to have chronic sprains and strains of her neck and back. After undergoing shoulder surgery, Messner continued to have right carpal tunnel syndrome. Dr. Prostic determined that Messner s permanent partial impairment was 15% to tire body as a whole for the spine and 20% for the upper right extremity. He opined that the injury to Messner’s shoulder was work-related but was not the result of her July 1999 fall.
In his deposition in 2010, Dr. Prostic testified that the combined value of his impairment ratings for Messner’s injuries from her fall on July 18, 1999, was 19% to the body as a whole based on the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (4th ed. 1995). He stated that Messner had sustained a 75% loss of task performing ability and was permanently and totally disabled from performing substantial gainful employment and is “realistically unable to return to gainful employment in the open labor market.”
Continental hired Dr. Chris Fevurly, a physician with a specialty in occupational medicine, to examine Messner on April 3, 2009. Dr. Fevurly found that Messner’s right shoulder complaints were not related to her work with Continental because they developed in 2003, 2 years after she left active employment with Continental. Dr. Fevurly believed Messner’s right shoulder condition was the result of the degenerative process and the thinning of the rotator cuff that is commonly seen in people of a similar age. Dr. Fevurly agreed with Dr. Satterlee’s assessment of a 14% impairment to the right shoulder but did not find it to be a work-related injury.
The ALJ ordered an independent medical examination with Dr. Thomas Shriwise. Dr. Shriwise opined that “half of [Messner’s] shoulder impairment is from her ongoing work activities when she was sent back to work and half would be secondary to rotator cuff disease from her aging process.”
In 2009, the decision was made that Messner would not return to work. Messner testified that her physical condition rendered her unable to engage in any type of employment.
Both of Messner’s claims were consolidated for a hearing and the award. A regular hearing was held on July 9, 2010, and the ALJ issued an award of compensation on May 26, 2011:
• In Docket No. 253,153, for injuries sustained as a result of Messner’s fall on July 18, 1999, the ALJ found that Messner was entitled to 31 weeks of temporaiy total disability (TTD) compensation, followed by 47.88 weeks of permanent partial disability (PPD) compensation for a 12% functional impairment. Finally, the ALJ awarded PPD compensation not to exceed $100,000 for a 78.75% work disability after April 25, 2001, which was Messner’s last day of work at Continental.
• In Docket No. 261,143, tire ALJ found that Messner “sustained her burden as more probably true [than] not that she sustained an injury to her right shoulder” during the time period of August 29, 2000, to her last day worked, April 25, 2001. The ALJ awarded 127.43 weeks of TTD compensation followed by 15.61 weeks of PPD compensation for a 16% loss of use of the shoulder.
On May 27, 2011, Continental appealed to the Board, claiming the ALJ erred in its award in both cases. On October 21,2011, the Board generally affirmed the ALJ’s findings, with various housekeeping corrections to the calculations of the awards. The Board modified the awards to correctly reflect the proper average weekly wage, date of accident, maximum weekly benefit level, appropriate weeks of TTD, and the correct mileage reimbursement. It noted the ALJ’s findings were “affirmed in all other regards.”
In Docket No. 253,153, tire Board found that Messner sustained a 12% functional impairment to the body as a whole while still employed and a 78.75% permanent partial general work disability once her employment ended. Messner was also awarded 29.57 weeks of TTD benefits from the date of injury (July 18, 1999) until tire date she returned to work. The Board stated:
“With a date of accident of July 18,1999, and a last day worked of April 25, 2001, the 12 percent functional impairment will fully pay out prior to claimant’s last day worked. Therefore, the functional impairment will be paid at the reduced rate of $354.82. As claimant’s permanent partial general (work) disability award of 78.75 percent will not begin until after claimant last worked for respondent, any [amount] due and owing or which comes due in the future will be paid at the stipulated maximum rate of $383.00 per week.”
The Board concluded:
“Claimant is entitled to 29.57 weeks of temporary total disability compensation at the rate of $354.82 per week or $10,492.03, followed by 48.05 weeks at the rate of $354.82 per week or $17,049.10, for a 12 percent permanent partial whole person functional disability, followed by 188.31 weeks permanent partial general disability at the weekly rate of $383.00 per week in the amount of $72,122.73, for a 78.75 percent permanent partial general disability making a total award not to exceed $100,000.00.
“As of tire date of this Award, the entire amount would be due and owing and ordered paid in one lump sum, minus any amounts previously paid.”
In Docket No. 261,143, the Board affirmed the ALJ’s determination that Messner suffered injury to her right shoulder each day from August 29, 2000, through her last day worked on April 25, 2001. TTD benefits were awarded from April 26, 2001, through December 13, 2002. Messner was awarded a 16% permanent partial functional disability at the level of the shoulder. The Board concluded:
“Claimant is entitled to 127.43 weeks of temporary total disability compensation at the rate of $401.00 per week or $51,099.43, followed by 15.61 weeks at the rate of $401.00 per week or $6,259.61, for a 16 percent permanent partial functional disability at the level of the shoulder, making a total award of $57,359.04.”
Continental initiated this appeal on November 18, 2011.
Work Disability Benefits
We are first asked to interpret whether K.S.A. 44-510e(a) prohibits an award of PPD benefits when an employee’s functional impairment benefits would have been fully paid before the event triggering a work disability.
There is no dispute that Messner suffered a work-related injury on July 18, 1999. As a result, the Board found that Messner was entitled to receive TTD benefits followed by PPD benefits through approximately mid-Januaiy 2001. On April 25, 2001, Messner left her work with Continental. The Board rejected the claim that Mes-sner was permanently and totally disabled as a result of her injuries. She was not found by Dr. Prostic to be totally disabled until 2010, long after she had left the labor market. However, the Board did find that Messner was entitled to work disability benefits under K.S.A. 44-510e(a) beginning in April 2001 when she left Continental’s employment. The Board stated:
“Here, K.S.A. 44-510e is clear and unambiguous. Once claimant is no longer receiving compensation for wages equal to 90 percent or more of her average gross weekly wage from the date of injury, she becomes entitled to compensation for work disability. As of April 25, 2001, claimant was no longer employed, under the statute, she has suffered a 100 percent wage loss.”
Continental does not contend that Messner did not have an ongoing disability. Rather, it contends that the Board incorrectly applied K.S.A. 44-510e(a) in awarding work disability benefits from the date Messner left her employment. Continental relies on the provision in the statute that directs that an award for permanent partial general disability shall be paid for the calculated number of disability weeks at the full payment rate “until fully -paid, or modified.” (Emphasis added.) See K.S.A. 44-510e(a). Continental argues that tire award for PPD was fully paid and never modified. Thus,
“the full payout would have occurred during the second week of January, 2001. Claimant continued to work, presumably at full pay and without workers compensation benefits, until her stipulated last day of work on April 25, 2001, approximately three months following the full payment of her permanent partial disability award.
“The statute makes no provision for events occurring subsequent to the full payment of an award.”
Continental raises an issue of first impression. Our appellate courts have not yet determined the limitation denoted by the specific language of K.S.A. 44-510e(a)—“until fully paid or modified.”
Under K.S.A. 2012 Supp. 44-556(a), final orders of the Workers Compensation Board are subject to review under the Kansas Judicial Review Act (KJRA), K.S.A. 77-601, etseq., as amended. Redd v. Kansas Truck Center, 291 Kan. 176, Syl. ¶ 1, 239 P.3d 66 (2010). We have unlimited review of questions involving the interpretation or construction of a statute, owing “no significant deference” to the Board’s interpretation or construction. See Ft. Hays St. Univ. v. University Ch., Am. Ass’n of Univ. Profs, 290 Kan. 446, 457, 228 P.3d 403 (2010). The most fundamental rule of statutory construction is that the intent of the legislature controls if that intent can be ascertained. Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607, 214 P.3d 676 (2009). But
“[w]lien a workers compensation statute is plain and unambiguous, the courts must give effect to its express language rather than determine what the law should or should not be. The court will not speculate on legislative intent and will not read the statute to add something not readily found in it. If the statutory language is clear, there is no need to resort to statutoiy construction.” 289 Kan. 605, Syl. ¶ 1.
In our review of a statute we give the words of the statute their natural and ordinary meaning. Schmidtlien Electric, Inc. v. Greathouse, 278 Kan. 810, 822, 104 P.3d 378 (2005).
Continental asserts that once Messner would have been paid her full functional impairment benefits arising from her injuries from the July 1999 accident, she no longer qualified for additional benefits even if her impairment increased. Continental does not appeal the disability calculation. Instead, Continentars sole challenge to the award rests on its assertion that the Board failed to apply the plain language of K.S.A. 44-510e(a) in awarding compensation for a general work PPD.
In considering Continentals argument, we are mindful of the protracted nature of these proceedings.
• Messner was injured in July 1999.
• She returned to work at her old job in February 2000 but had problems doing the work, though she had the lightest available job.
• She filed this claim in March 2000.
• She left work in April 2001.
• The regular hearing on her award was not held until July 2010.
• The ALJ’s made an award in May 2011.
• The Board entered its order awarding compensation benefits in October 2011.
The Board’s award was a lump sum award. Continental paid TTD benefits for tire period when Messner was initially off work. There is no indication in the record that prior to the Board’s award in October 2011 Messner received any PPD benefits for her injuries.
When an injured worker receives benefits for a work-related injury not listed on the K.S.A. 44-510d schedule, the Act provides for an award of PPD. A PPD award may be calculated in two ways: (1) based on an overall functional impairment calculated according to the AMA Guides to the Evaluation of Permanent Impairment; or (2) based on a statutorily defined work disability. See K.S.A. 44-510e(a). This case involves an award based on both calculations: a functional disability for one period of time followed by an award of general work disability.
K.S.A. 44-510e(a), the statute in effect at the time of Messner s injury, provides that a claimant suffering an injury is entitled to TTD and PPD benefits for up to 415 weeks from the date of injury. See Casco v. Armour Swift-Eckrich, 283 Kan. 508, 528, 154 P.3d 494 (2007). K.S.A. 44-510e(a) sets forth the following formula for calculating the weekly benefits for PPD:
“The amount of weekly compensation for permanent partial general disability shall be determined as follows:
(1) Find the payment rate which shall be the lesser of (A) the amount determined by multiplying the average gross weekly wage of the worker prior to such injury by 66⅜% or (B) the maximum provided in K.S .A. 44-510c and amendments thereto;
(2) find the number of disability weeks payable by subtracting from 415 weeks the total number of weeks of temporary total disability compensation was paid, excluding the first 15 weeks of temporary total disability compensation that was paid, and multiplying the remainder by the percentage of permanent partial general disability as determined under this subsection (a); and
(3) multiply the number of disability weeks determined in paragraph (2) of this subsection (a) by the payment rate determined in paragraph (1) of this subsection (a).
“The resulting award shall he paid for the number of disability loeeks at the full payment rate until fully paid or modified. ... In any case of permanent partial disability under this section, the employee shall be paid compensation for not to exceed 415 weeks following the date of such injury, subject to review and modification as provided in K.S.A. 44-528 and amendments thereto.” (Emphasis added.) K.S.A. 44-510e(a).
Claimants are not eligible to receive PPD in the form of work disability as long as the claimant is earning at least 90 percent of the preinjury wage. So long as the claimant’s wage rate is at least 90 percent of the preinjuiy wage, the claimant receives compen sation based on an award of functional impairment. K.S.A. 44-510e(a). K.S.A. 44-510e(a) defines functional impairment as
“die extent, expressed as a percentage, of the loss of a portion of the total physiological capabilities of the human body as established by competent medical evidence and based on the fourth edition of the American Medical Association Guides to the Evaluation of Permanent Impairment, if the impairment is contained therein.”
The formula in K.S.A. 44-510e(a) was adopted in 1993. See L. 1993, ch. 286, § 34. Prior to the 1993 amendments to the Workers Compensation Act, injured workers were entitled to 415 weeks of PPD benefits, but the weekly benefit was 2/3 of his or her weekly wage multiplied by his or her disability rating. Thus, prior to 1993, the injured employee received less every week but for a longer period of time. See K.S.A. 1992 Supp. 44-510e(a).
Under the current formula provided in K.S.A. 44-510e(a) for calculating PPD benefits, an employee is entitled to receive a full ⅜ of his or her regular weekly wage—-up to the statutory maximum—even if he or she continues to work. However, the length of time the employee receives benefits is determined by the amount of TTD benefits the employee received and the disability rating attributable to the injury. The higher the disability rating, the longer period the employee receives PPD benefits.
Here, the Board awarded Messner 29.57 weeks of TTD compensation at the rate of $354.82 per week, or $10,492.03, followed by 48.05 weeks at the rate of $354.82 per week, or $17,049.10, for a 12% permanent partial whole person functional disability, followed by 188.31 weeks of permanent partial general disability at the weekly rate of $383 per week in the amount of $72,122.73, for a 78.75% permanent partial general disability, for a total award somewhat less than the $100,000 cap.
The language of K.S.A. 44-510e(a) that Continental claims prohibits an award of general work disability in Messner s case appears immediately after the language providing for the calculation of the award of PPD. K.S.A. 44-510e(a) provides as follows:
“The resulting award shall be paid for the number of disability weeks at the full payment rate until fully paid or modified. If there is an award of permanent disability as a result of the compensable injury, there shall be a presumption that disability existed immediately after such injury. In any case of permanent partial disability under this section, the employee shall be paid compensation for not to exceed 415 weeks following the date of such injury, subject to review and modification as provided in K.S.A. 44-528 and amendments thereto.” (Emphasis added.)
As noted earlier, Continental asserts that at the conclusion of Messner s 48.05 weeks of functional PPD, and so long as the payment rate was not modified under K.S.A. 44-528, Messner s claim should have been considered to be fully paid. But the Board rejected this argument when, in awarding work disability, it acknowledged that “[wjith an accident date of July 18,1999, and a last day worked of April 25, 2001, the 12 percent functional impairment will fully pay out prior to claimant’s last day worked.” The Board found:
“K.S.A. 44-510e is clear and unambiguous. Once claimant is no longer receiving compensation for wages equal to 90 percent or more of her average gross weekly wage from the date of injury, she becomes entitled to compensation for work disability. As of April 25, 2001, claimant was no longer employed, under tire statute, she has suffered a 100 percent wage loss.”
In Ponder-Coppage v. State, 32 Kan. App. 2d 196, 83 P.3d 1239 (2002), this court held that if there is an increase or decrease in functional impairment or work disability during the 415 weeks, an award may be modified to reflect such a change in impairment. In Ponder-Coppage, the employer appealed the Board’s award of work disability, which was awarded after the claimant filed for a modification of a prior award. After an injury in 1994, the claimant returned to work in 1996. The claimant received an award of PPD based on a 5% functional impairment rating. In 1997, claimant’s pain increased, and she was given an accommodated position. Later that same year, she accepted a voluntary layoff due to the closing of the hospital where she worked. In 1998, she filed an application for review and modification under K.S.A. 44-528(d), asserting that her condition had worsened and requesting an award of work disability. The Board awarded PPD based on a 23% work disability. 32 Kan. App. 2d at 197. The employer disputed the award, arguing that the claimant could not be awarded .compensation for a time period that occurred more than 6 months before she filed her application for modification. See K.S.A. 44-528(d). The court held the claimant was entitled to receive full compensation for her work disability. 32 Kan. App. 2d at 198. In interpreting the language of the Act, this court stated:
“K.S.A. 44-510e(a) sets forth the number of weeks that compensation is received but limits that compensation to 415 weeks from the date of the work-related accident. Consequently, even if the effective date of a modified award is 6 months before the application was filed, the modified award only compensates for the remaining unpaid weeks, if any, that are proven but not yet expired. If an employer has paid the maximum amount, the modified award does not offer further payment.” 32 Kan. App. 2d at 200.
Applying these principles to the present case, K.S.A. 44-510e(a) limits compensation to up to 415 weeks after the date of the accident. Here, there was not an award and a later application for modification. In fact, no award was entered until many years after Messner ended her employment at Continental, thereby commencing the period of her work disability. Nevertheless, the same 415-week limitation applies.
Messner was injured on July 18, 1999. She was off work for a time, thus resulting in an award of TTD benefits. After her return to work, Messner ultimately was awarded PPD benefits for 48.05 weeks for her functional disability. That period would have ended in mid-Januaxy 2001. Messner s condition worsened, and she left her employment in April 2001. After April 25, 2001, her last day worked, the Board later declared that Messner was entitled to compensation for a work disability under K.S.A. 44-510e(a). As in Poncler-Coppage, the limitation provided under the statute is a maximum of 415 weeks after the accident.
In Lee v. Boeing Co., 21 Kan. App. 2d 365, 899 P.2d 516 (1995), this court examined the portion of K.S.A. 44-510e(a) which prohibits an award of work disability benefits as long as the claimant earns at least 90 percent of his or her preinjuiy wage. This provision was enacted to prevent an employee from “double-dipping” by collecting substantial postinjuxy wages while simultaneously collecting woi'k disability. 21 Kan. App. 2d at 371. Lee was injured while working for Boeing. When he returned to work he could not complete his job tasks because of the excessive bending the job required, so lie was moved to a light duty job. Lee was paid a wage comparable to his preinjuiy wage during the time he held this light duty job. Ultimately, Lee was laid off for economic reasons. After die layoff, Lee found work paying $150 per week, which apparently was less than 90 percent of his prior wage at Boeing.
Under K.S.A. 44-510e(a), the claimant must overcome the presumption that he or she is not entitled to work disability. Here, the court rejected Boeing’s argument that if Lee could not overcome the presumption of work disability for the period when he did hght duty work at Boeing at his preinjuiy wage, then he could not overcome the presumption later when he was laid off from work and then earned less than 90 percent of his preinjury wage. The Lee court found that the statute protects the worker from an employer providing accommodating work to avoid liability for work disability benefits.
“The effect of Boeing’s construction is this: A large, well-paying employer could return an employee to a tight duty job at his or her pre-injury wage. After a period of time, the employer could discharge the injured employee in the midst of downsizing. In this way, the employer would save money by paying the injured worker an inflated salary in an accommodated job for a period of time, then discharging the worker and avoiding work disability benefit payments based on the presumption.” 21 Kan. App. 2d at 372.
Thus, the Lee court concluded that if a claimant can meet the burden of proving a work disability, the claimant is not limited from doing so because the employee was first able to return to work at a comparable wage. “The presumption of no work disability set out in [K.S.A. 44-510e(a)] may be applied as to one period of time and overcome as to a later period; for example, after an accommodated worker is laid off.” 21 Kan. App. 2d 365, Syl. ¶ 4.
Here, Messner testified that she never felt able to return to work and she often left work early due to her pain and discomfort. However, she attempted to perform her job from February 2000 through April 2001. For a period of48.05 weeks after she returned to work, Messner was limited to benefits for a functional impairment. After she left work, Messner sustained a 100 percent wage loss. Messner’s effort to continue her employment after her injury did not bar her from collecting work disability after she was unable to continue working.
Continentars proposed interpretation of the statute provides for a situation in which an injured worker may not want to risk an award of work disability by attempting to return to work. Using Continental’s construction of the “until fully paid or modified” language reduces an employee’s incentive to return to work following a work disability. When reading the statute as a whole, K.S.A. 44-510e(a) provides for an award of compensation for a time period of 415 weeks after a work-related accident. An award for functional impairment may apply to one period of time, and an award of work disability may apply to a later period of time within the. 415 weeks that a worker is eligible to be compensated. 21 Kan. App. 2d at 372.
Most of the cases with the factual scenario of a functional impairment followed by a work disability involve K.S.A. 44-528(a), which provides for a modification of an award in such a situation. See Ponder-Coppage, 32 Kan. App. 2d at 199; Ramey v. Cessna Aircraft, No. 104,819, 2011 WL 4035762 (Kan. App. 2011) (unpublished opinion) (claimant filed an application for modification to determine whether his disability had increased resulting in a modified award of PPD benefits); Serratos v. Cessna Aircraft Co., No. 104,106, 2011 WL 2637449 (Kan. App. 2011) (unpublished opinion) (if claimant’s condition is increased or decreased under K.S.A. 44-528, the extent or duration of a claimant’s disability and the employer’s liability are redetermined under K.S.A. 44-510e[a]); Stinchcomb v. Raytheon Aircraft Co., No. 92,174, 2005 WL 1214246 (Kan. App. 2005) (unpublished opinion) (an award can be modified to compensate for any unpaid weeks remaining within the 415-week limitation).
The present case doe's not involve K.S.A. 44-528(a) because there was no award followed by an application for modification. Although Messner’s accident occurred'in 1999, the Board did not enter its' award until October 2011, over a decade after Messner left her employment in April 2001.
K.S.A. 44-528(a) provides the agency with the ability to review and modify the extent or duration of a claimant’s disability and the employer s liability to accommodate a situation in which there is a change in disability. In this case, an award was not initially made then modified-- But K.S.A. 44-510e(a) clearly contemplates a change in the award of compensation according to a claimant’s increased or decreased level of impairment. When construing statutes to determine legislative intent, an appellate court must consider various provisions of an act in pari materia with a view to reconciling and harmonizing the provisions if possible. Nistler v. Footlocker Retail, Inc., 40 Kan. App. 2d 831, 839, 196 P.3d 395 (2008). K.S.A. 44-510e(a) provides that “the resulting award shall be paid for the number of disability weeks at the full payment rate until fully paid or modified.” See K.S.A. 44-510e(a). This language makes clear that an award can be modified within the 415-week limit, as is provided in K.S.A. 44-528(a). Here, Messner was awarded compensation for a functional impairment during the time that she returned to work; but her condition worsened and the Board awarded work disability benefits for the period after she was no longer able to work. Continental does not challenge the Board’s finding that Messner’s disability increased as the natural and probable consequence of the July 18, 1999, injury.
If, after an award is made, a claimant can obtain a modification of the award upon showing an increased level of disability, it naturally follows that the same can be accomplished in tire first instance when the Board is considering for die first time all of the disabling consequences of a single job-related injury, provided that its award is confined to the 415-week limitation for benefits set forth in K.S.A. 44-510e(a).
Messner had not received any PPD benefits for her July 1999 injury by the time she quit work in 2001. The Board did not affirm the award of compensation until a decade later in 2011. At that time, the Board ordered “the entire amount would be due and owing and ordered paid in one lump sum, minus any amounts previously paid.” The record does not indicate that Continental had paid any of, let alone “fully paid,” the functional disability award before Messner left Continental. Thus, even if we accept Continental’s interpretation of the “fully paid or modified” lan guage in K.S.A. 44-510e(a), Continental did not prove that it had “fully paid” Messner s PPD benefits.
The Board found that Messner showed an increase in disability during the 415-week limitation. We conclude that the Board had the authority to enter a lump-sum award that provided benefits for both Messner’s functional disability and her work disability occurring as a result of her July 18, 1999, injuiy.
Right Shoulder Injury
We are asked to determine whether substantial competent evidence, when viewed in light of the record as a whole, supports the Board’s finding that Messner sustained a second injury to her right shoulder beginning on August 29, 2000, and continuing every day through her last day worked on April 25, 2001.
We review a challenge to the Board’s factual findings by examining the record as a whole to determine whether the findings are supported by substantial evidence. See K.S.A. 2012 Supp. 77-621(c)(7).
“ ‘[I]n light of the record as a whole’ means that the adequacy of the evidence in the record before the court to support a particular finding of fact shall be judged in light of all the relevant evidence in the record cited by any party that detracts from such finding as well as all of the relevant evidence in the record, compiled pursuant to K.S.A. 77-620, and amendments thereto, cited by any party that supports such finding, including any determinations of veracity by the presiding officer who personally observed the demeanor of the witness and the agency’s explanation of why the relevant evidence in the record supports its material findings of fact. In reviewing the evidence in light of the record as a whole, tire court shall not reweigh the evidence or engage in de novo review.” K.S.A. 2012 Supp. 77-621(d).
Under this standard of review, we do not weigh conflicting evidence except to determine whether the evidence supporting the Board’s decision has been so undermined by conflicting evidence that we no longer have confidence in the substantial nature of the evidence. Herrera-Gallegos v. H & H Delivery Service, Inc., 42 Kan. App. 2d 360, 363, 212 P.3d 239 (2009). Although not statutorily defined, “substantial evidence” refers to “evidence possessing something of substance and relevant consequence to induce the conclusion that the award was proper, furnishing a basis of fact from which the issue raised could be easily resolved.” Redd, 291 Kan. at 183-84.
The claimant has the burden to establish his or her right to an award of compensation under the Workers Compensation Act and to prove the various conditions on which his or her right depends. K.S.A. 2011 Supp. 44-501b(c); K.S.A. 2011 Supp. 44-508(h). “Once the claimant has met his or her burden of proving a right to compensation, the employer has the burden of proving relief from that liability through [a statutory defense or exception].” Foos v. Terminix, 277 Kan. 687, 693, 89 P.3d 546 (2004).
Continental complains that “the only evidence of work related aggravation of Claimant’s right shoulder” comes from Messner’s testimony at the preliminary and regular hearings and from her own medical expert, Dr. Prostic. Continental claims that eveiy other source of information about the causation of Messner’s right shoulder injury suggests that it was not connected to her work activities from August 2000 to April 2001. Continental contends that the ALJ and the Board erred by accepting the medical testimony of Dr. Prostic regarding causation and impairment ratings and by discounting the opinions of the “neutral” physicians without any explanation as to the reasoning behind their decisions to do so.
Essentially, Continental is asking this court to reweigh the evidence and assess the credibility of the testimony. As previously noted, we limit our review to determining whether the Board’s decision has been so undermined by conflicting evidence that we no longer have confidence in the substantial nature of the evidence. Herrera-Gallegos, 42 Kan. App. 2d at 363.
With respect to the claim that the Board discounted without explanation the opinions of all the physicians except Dr. Prostic, we note that in its award the Board stated that “it is questionable whether either [Dr. Pratt or Dr. Vito Carabetta] had an accurate history regarding the timing of the onset of tiróse right upper extremity problems.” The ALJ made a similar observation. Our review of Messner’s medical history indicates that the ALJ and the Board had reason to view some of the medical testimony with caution.
Messner testified that she was required to do repetitious pulling, lifting, and overhead reaching in the performance of her job duties. On August 28, 2000, the ALJ sent Messner to Dr. Luallin for an independent medical evaluation for rating and restriction purposes. At this time, Messner reported “right parascapular tightness.”
From August 29, 2000, to April 25, 2001, Messner s condition worsened and she developed pain in her right shoulder. She often worked 12-hour days. In February 2001, Dr. Prostic’s examination reported that Messner had developed evidence of right carpal tunnel syndrome and rotator cuff tendinitis of the right shoulder.
In March 2001, while Messner was still working for Continental, she filed a new workers compensation claim at Continental’s request in order to obtain medical treatment for her right shoulder injuiy.
In May 2001, Messner visited Dr. Fishman, and the pain diagram indicated that she was having pain in her upper right extremity. In September 2001, Dr. Pratt’s report showed that Messner complained of discomfort and problems with the range of motion in her right shoulder.
In 2004, the ALJ requested that Dr. Pratt provide an independent evaluation to determine Messner’s restrictions. The ALJ asked Dr. Pratt not to provide an opinion regarding causation. In 2007, Messner eventually had surgery to repair the damage to her right shoulder.
Dr. Prostic testified that Messner’s right shoulder injuiy was caused by her work at Continental. He testified that from August 29, 2000, through April 25, 2001, Messner sustained a series of traumas to her upper right extremity. Dr. Shriwise found that “half of her shoulder impairment is from her ongoing work activities when she was back to work and half would be secondary to rotator cuff disease from her aging process.”
Both the ALJ and the Board found that Messner sustained injuiy to her right shoulder arising out of and in the course of her employment. We are persuaded that the record contains substantial competent evidence in support of the Board’s factual determination that Messner’s right shoulder injury arose out of her work activities from August 2000 to April 2001.
Temporary Total Disability Benefits
Continental claims the Board erred in awarding Messner TTD compensation for her right shoulder injury from April 25, 2001, Messner s last day of work and the date of injury, to December 13, 2002, when Dr. Pratt indicated that Messner had reached MMI.
This final argument involves the evaluation of the Board’s factual findings. We review a challenge to the Board’s factual findings in light of the record as a whole to determine whether they are supported by substantial evidence. See K.S.A. 2012 Supp. 77-621(c)(7). However, resolution of this issue also requires statutory interpretation over which we have unlimited review. See Ft. Hays St. Unto., 290 Kan. at 457.
In April 2001, Messner visited her personal chiropractor, who imposed work restrictions. Messner communicated the chiropractor’s work restrictions to Continental, but Continental would not accommodate tírese work restrictions so Messner did not return to work. Messner claims she was forced to leave her employment on April 25, 2001, due to a worsening of her condition and Continental’s inability to accommodate her work restrictions.
TTD benefits should be awarded when the injured worker, on account of the injury, is rendered completely and temporarily incapable of engaging in any type of substantial and gainful employment. K.S.A. 44-510c(b)(2). This statute states:
“Temporary total disability exists when the employee, on account of the injury, has been rendered completely and temporarily incapable of engaging in any type of substantial and gainful employment. A release issued by a health care provider with temporary medical limitations for an employee may or may not be determinative of the employee’s actual ability to be engaged in any type of substantial and gainful employment, except that temporary total disability compensation shall not be awarded unless the opinion of the authorized treating health care provider is shown to be based on an assessment of the employee’s actual job duties toith the employer, with or without accommodation.” (Emphasis added.) K.S.A. 44-510c(b)(2).
The Board found Messner to be temporarily and totally disabled from April 26,2001, when she left Continental, through December 13, 2002, when Dr. Pratt found she had reached MMI. But there is no indication in the record that Dr. Pratt or any other authorized treating health care provider found Messner to be incapable of engaging in substantial and gainful employment when she left Continental. Under K.S.A. 44-510c(b)(2), the mere fact that a physician has released the employee with restrictions does not establish whether the employee is capable of engaging in any type of employment.
Leading up to Messner’s last day of work, she was first seen by Dr. Prostic in February 2000. He imposed work restrictions that Messner worked under for more than a year. He did not find any temporary total disability on account of Messner’s shoulder condition. In fact, Messner did not mention her shoulder to Dr. Prostic at that time. Dr. Luallin agreed with Dr. Prostic when he examined Messner in August 2000. Dr. Prostic again saw Messner in February 2001, at which time she had right shoulder complaints. But Dr. Prostic did not find that she suffered TTD from that condition.
Messner quit work in April 2001 based on restrictions imposed by her personal chiropractor, not by an authorized treating physician. On direct examination at the regular hearing, Messner testified:
“Q- • • • Your last day that you physically worked at the facility was April 26 of 2001?
“A. Yes.
“Q. What happened at that time?
“A. That was when I had went to a doctor of my own and he put restrictions on me, and they wouldn’t let me work with restrictions. And he was not a workmen’s comp doctor.” (Emphasis added.)
Neither Dr. Fishman nor Dr. Pratt, the doctors who examined or treated Messner’s shoulder between the time she quit work and the time she reached MMI, opined that Messner suffered a TTD. In fact, Dr. Pratt opined that at the time Messner reached MMI she should be able to return to work in a sedentary job or one that imposes only a light physical demand.
Under K.S.A. 44-510c(b)(2), an authorized treating physician needed to find Messner to be “completely and temporarily incapable of engaging in any type of substantial and gainful employment” in order for Messner to be eligible for TTD benefits. Mess-ner has not met this burden. Thus, we reverse the award of TTD compensation for Messner’s right shoulder for the period from April 26, 2001, through December 13, 2002, and remand for the Board to recalculate Messner’s award for her right shoulder injury in Docket No. 261,143.
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Green, P.J.:
Woodland Park at Soldier Creek, LLC (Woodland Park) appeals from the trial court’s decision: (1) that denied Woodland Park’s application to vacate or modify and correct arbitration; and (2) that confirmed an arbitration award in favor of Neighbors Construction Co., Inc. (Neighbors Construction) in the amount of $1,277,701.31. On appeal, Woodland Park makes the following arguments: (1) that the trial court misapplied the standard of review when it confirmed the arbitration award in favor of Neighbors Construction; (2) that the trial court erred when it confirmed the arbitration award because the arbitrator exceeded his statutory power; (3) that the trial court erred when it confirmed Neighbors Construction’s attorney-fee award because the arbitrator relied on the wrong statute; and (4) that the trial court erred when it denied Woodland Park’s motion to add the arbitration transcript to the record. We disagree. Accordingly, we affirm.
On May 17, 2007, Neighbors Construction entered into a standard form construction agreement with Woodland Park. The contract agreement was amended and signed by the parties on May 21, 2007. Under the agreement, Neighbors Construction was to serve as the general contractor for the Woodland Park at Soldier Creek multi-family housing project (project) located in Topeka, Kansas. Woodland Park was the owner of the project. The contract required Neighbors Construction to “fully execute the Work described in the Contract Documents, except to the extent specifically indicated in the Contract Documents to be the responsibility of others.”
The contract, in part, contained the following terms: (1) that Neighbors Construction would receive $16,611,466 in compensation for performing the contract; (2) that Neighbors Construction would receive periodic progress payments as provided in the contract; and (3) that Neighbors Construction should achieve “substantial completion” of the entire work no later than 608 days from the date of commencement. The contract also incorporated by reference the American Institute of Architects (AIA) Document A201, General Conditions to the contract for construction (1997 ed.) (General Conditions). Section 4.4 of the General Conditions, entitled “resolution of claims and disputes,” contained several numbered paragraphs that explained the process tire parties were to use if a dispute arose. Section 4.4.1 stated that claims
“shall be referred initially to the Architect for decision. An initial decision by the Architect shall be required as a condition precedent to mediation, arbitration, or litigation . . . unless 30 days have passed after the Claim has been referred to the Architect with no decision having been rendered by the Architect”
Section 4.6 contained the arbitration procedures. Section 4.6.1 read as follows:
“Any Claim arising out of or related to the Contract, except Claims relating to aesthetic effect and except those waived . . . shall, after decision by the Architect or 30 days after submission of the Claim to the Architect, be subject to arbitration. Prior to arbitration, the parties shall endeavor to resolve disputes by mediation in accordance with the provisions of Section 4.5”
After the execution of the contract, Neighbors Construction began to perform and Woodland Park timely paid Neighbors Construction the first 19 progress payments. In Application 20R, Neighbors Construction requested a progress payment of $845,273.92. Woodland Park short-paid Application 20R by $200,000. On February 11, 2009, Neighbors Construction provided Woodland Park with notice that it intended to stop work on the project until it received payment. Neighbors Construction also submitted Application 21 to Woodland Park in the amount of $626,801.86, which included the unpaid balance of $200,000 from Application 20R. Woodland Park disputed Neighbors Construction’s progress payment request for Application 21, disputed the $200,000 balance owed on Application 20R,,and submitted a claim to the architect asking him to review all previous pay applications.
On March 25, 2009, the architect rescinded its certification of the $200,000 owed to Neighbors Construction under Application 20R. Neighbors Construction and its subcontractors then returned to the project and continued to work. At that time, however, Neigh bors Construction filed a demand for arbitration. Before the arbitration hearing, the architect certified Application 21 for payment, but he did not include the $200,000 from Application 20R in the certification. As of July 14, 2009, the architect had determined that Woodland Park owed Neighbors Construction $622,102.84. On July 31, 2009, Neighbors Construction told Woodland Park that it would stop work until the balance was paid. When Woodland Park failed to pay the $622,102.84, Neighbors Construction gave Woodland Park a notice of termination, as required under the contract, and the contract was terminated.
In June 2010, an arbitration hearing was held to settle the parties’ payment dispute. At the hearing, Woodland Park argued that the architect’s decision was final and binding on the parties absent fraud or gross mistake. Moreover, Woodland Park argued that the arbitrator must defer to the architect’s decision, unless the evidence established that the architect committed fraud or gross mistake. The arbitrator, however, disagreed with Woodland Park and ruled that General Condition Section 4.4.1 did not make the architect’s decisions final and binding on the parties but instead was merely a condition precedent to arbitration.
Following the hearing, the arbitrator issued his written decision. In his decision, tire arbitrator found that “Woodland Park’s repeated requests for [the architect] to reconsider its certifications of Neighbors’ Applications 20R and 21 were part of a concerted attempt to create an excuse for non-payment.” Thus, the arbitrator made the following findings: (1) that Woodland Park materially breached the contract by its nonpayment of $200,000 on Application 20R; (2) that Woodland Park’s breach excused all further performance by Neighbors Construction; and (3) that because Neighbors Construction completed the project, it was entitled to recover the balance of the adjusted contract sum less the amount it would have cost Neighbors to complete or correct the work. The arbitrator then awarded Neighbors Construction $1,277,770.31, which included interest, costs, and Neighbors Construction’s attorney fees.
On June 16, 2010, Neighbors Construction filed an application for confirmation of its arbitration award and entry of judgment in Shawnee County District Court. In opposition, Woodland Park filed a response to Neighbors Construction’s application and also filed an application to vacate or modify and correct the arbitration awai'd. In its application, Woodland Park argued, in part, that the ai'bitrator erred when he failed to defer to the architect’s decision, that the arbitrator exceeded his power, and that the arbitrator showed a manifest disi'egard for the law.
The trial couit found that the architect’s decision was not entitled to deference and that Woodland Pai’k failed to prove that the arbitrator exceeded his power or showed a manifest disregard for the law. On May 31, 2010, Woodland Park filed a motion to alter or amend judgment. The trial court denied Woodland Park’s post-trial motions.
Standard of Review
Initially, we must detennine if the trial court used the appropriate standard of review. Woodland Park argues that the trial court ei'red when it applied a defei’ential standard of review to the arbitrator’s decision. Specifically, Woodland Park argues that the trial court should have applied a deferential standard of review to the architect’s decision instead of the arbitrator’s decision. Neighbors Construction disagrees and argues that the trial court did not err when it applied a deferential standard of review to the arbitrator’s decision because the architect’s decision was merely advisoiy.
An appellate court’s standard of review of an arbitration award is highly deferential. The court must affirm an award if the arbitrator acted within the scope of his or her authority. As long as the arbitrator’s errors are not in bad faith or so gross as to amount to affirmative misconduct, an appellate court is bound by the arbitrator’s findings of fact and conclusions of law. City of Coffeyville v. IBEW Local No. 1523, 270 Kan. 322, 336, 14 P.3d 1 (2000).
In this case, the architect ruled that Neighbors Construction was not entitled to receive the $200,000 that it alleged was owed to it under Application 20R. The arbitrator rejected the architect’s decision and ruled, in part, that Woodland Park materially breached the contract by its nonpayment of the $200,000 under Application 20R. Woodland Park argues that the arbitrator should have de ferred to the architect when he made his decision, i.e., that that architect was the “first arbitrator” and that the trial court erred in giving deference to the “second arbitrator” instead of the architect. In other words, Woodland Park argues that “if the proper standard of review was utilized by the second arbitrator, he would have been reviewing the initial decisions of the Architects solely for fraud, gross mistake, irrational interpretations of the contract or errors as a matter of law.”
Woodland Park’s argument is misplaced. In its brief, Neighbors Construction relies on O. K. Johnson Electric, Inc. v. Hess-Martin Corporation, Inc., 204 Kan. 478, 464 P.2d 206 (1970). O. K. Johnson involved a payment dispute between a subcontractor and a general contractor. The general contractor refused to pay the subcontractor die full amount of money that the subcontractor alleged was owed to it under the contract. The general contractor maintained that the subcontractor was not entitled to payment because die subcontractor had used excess labor in performing its subcontractor work. The terms of the parties’ contract required that the total direct cost, which was used to calculate die subcontractor’s compensation, was “subject to approval” of the architect. 204 Kan. at 479. On appeal, the owner of the construction project (who indemnified the general contractor) argued that the subcontractor was not entitled to payment because the architect’s decision to refuse payment was binding and final absent a showing of fraud, bad faith, or gross mistake.
In disagreeing with the owner’s contention, our Supreme Court noted the following rule:
“In building and construction contracts the parties frequently agree that the finding of an architect or other designated person in respect to quantity and character of work done shall be conclusive, in which case it can only be impeached upon the ground of fraud, gross mistake, bad faith, undue influence, or some other good cause. [Citations omitted.] But the decision of the person designated on matters entrusted to him is deemed final and conclusive only where it appears from express terms of the contract, or from plain language therein, that the parties intended his decision have that effect. [Citations omitted.]” O. K. Johnson, 204 Kan. at 483.
The O. K Johnson court reasoned that the architect’s payment decision was not final because the express terms and plain language of the contract did not show that the architect’s decision was final. Moreover, the O. K Johnson court reasoned that the subject to approval clause “lack[ed] plain and unequivocal language indicating a binding conclusive effect was to be given any decision rendered by . . . the architect.” 204 Kan. at 484.
Neighbors Construction’s reliance on O. K Johnson is warranted. Here, like the contract language in O. K Johnson, the express terms and plain language of the construction agreement with Woodland Park failed to show that the architect’s decision was to be final and conclusive. For example, Section 4.6.1 of the General Conditions contains the decisions that are considered to be final by the architect. Under this section, the architect is the sole decision maker on rulings of aesthetic effects and claims waived under Sections 4.3.10, 9.10.4, and 9.10.5, i.e., the architect’s rulings on these decisions are not subject to arbitration. Section 4.6.1, however, does not contain a similar finality clause for payment disputes. Because Section 4.6.1 contains a clause for when the decisions of the architect are final and this section fails to include payment disputes, the contract fails to show that the architect’s payment dispute decision is final and conclusive.
Moreover, Section 4.4.1 further supports the conclusion that the architect’s payment dispute decision was not final. As mentioned earlier, Section 4.4.1 states:
“Decision of Architect. Claims . . . shall be referred initially to the Architect for decision. An initial decision by the Architect shall be required as a condition precedent to mediation, arbitration, or litigation . . . unless 30 days have passed after the Claim has been referred to the Architect with no decision having been rendered by tire Architect.”
Thus, Section 4.4.1 shows that the architect’s decision is merely a condition precedent to arbitration. If the architect’s decision is final, the condition precedent language would be unnecessary. Indeed, the condition precedent language would be merely surplus-age as neither party would be entitled to mediation or arbitration.
Although Section 4.4.5 states that “[t]he approval or rejection of a Claim by the Architect shall be final and binding on the parties,” this section is qualified by the phrase that directly follows this language, which states that the architect’s decision is “subject to me diation and arbitration.” Moreover, the finality of the architect’s ruling under Section 4.4.5 is further qualified by Section 4.4.6, which requires the parties to make a demand for arbitration within 30 days of the architect’s written decision. If tire parties fail to make a demand for arbitration within tire applicable time frame, then the architect’s written decision becomes final. Thus, Section 4.4.6 indicates that the arbitrator’s decisions—except those of aesthetic effect or those waived under Sections 4.3.10, 9.10.4, and 9.10.5— are not final unless tire parties fail to make a demand for arbitration within 30 days. Additionally, Section 4.4.6 clearly states that “[i]f the Architect renders a decision after arbitration proceedings have been initiated, such decision may be entered into evidence, but shall not supersede arbitration proceedings . . . .” Here, if tire architect’s payment decision is final and subject to deference by the arbitrator, then there would be no need to enter the architect’s decision into evidence; instead, the architect’s decision would be final and arbitration proceedings would be unnecessaxy. Yet, the express terms and the plain language of the contract do not lead to this interpretation. Consequently, Woodland Park’s argument fails because the architect’s decision was not final and therefore not entitled to deference by the arbitrator or the trial court.
Other jurisdictions have reached similar decisions under analogous circumstances. See, e.g., Sue Klau Enterprises, Inc. v. Am. Fid. Fire Ins. Co., 551 F.2d 882, 886 (1st Cir. 1977) (The architect’s decision became final after defendant failed to file required notice requesting arbitration within 30 days of architect’s decision.); Sussex County Senior Services, Inc. v. Carl J. Williams & Sons, Inc., No. CIV.A. 99-473-GMS; 2000 WL 1726527, at *4 (D. Del. 2000) (unpublished opinion) (The written decision of the architect becomes final and binding under these circumstances: [1] the decision must inform parties that the ruling is “final but subject to arbitration”; [2] the decision must tell the parties that they must file a demand for arbitration within 30 days if they want to preserve its claims; and [3] the party must fail to request arbitration within 30 days); see also Beers Construction Co. v. Pikeville United Methodist Hospital of Kentucky, Inc., No. 03-6264, 129 Fed. Appx. 266, 271, 2005 WL 977264 (6th Cir. 2005) (unpublished opinion) (The architect’s decision was “merely advisory” where contract stated architect’s decisions were “final and binding” because phrase was qualified by the phrase “subject to legal proceedings.”). Although not binding precedent upon us, these cases further illustrate that the architect’s payment dispute decision was not entitled to deference.
Moreover, Woodland Park conceded at oral arguments that it had the power to choose the architect and did choose the architect in this case. Certainly, as the owner of the project it is understandable that Woodland Park would choose the architect. The architect chosen by Woodland Park should be allowed to make final decisions regarding aesthetics. But this does not mean that the architect’s decision as to payment disputes was final and binding on the parties. In addition, Woodland Park also conceded at oral argument that an adversarial process was not used when the architect made his decision. For example, no witnesses were called and no evidence was presented to the architect before he made his decision. These facts further support our decision that the architect’s payment dispute decision was not final and binding.
For the foregoing reasons, the trial court applied the proper standard of review when it confirmed Neighbors Construction’s arbitration award. The express terms and plain language of the contract did not show that the architect’s payment dispute decision was final. Thus, the trial court did not err when it failed to defer to tire architect’s decision instead of the arbitrator’s decision. Consequently, we affirm the trial court’s decision.
Did the Trial Court Err When It Ruled That the Arbitrator Did Not Exceed His Statutory Power or Show a Manifest Disregard for the LawP
Next, Mjoodland Park argues that the trial court erred in failing to rule that the arbitrator exceeded his statutory power. Moreover, Woodland Park argues that the trial court erred in confirming the arbitrator’s award because the arbitrator showed a manifest disregard for Kansas law. On the other hand, Neighbors Construction argues that Woodland Park has intermixed statutory and nonsta- tutoiy grounds for relief in its brief, which makes it difficult to comprehend Woodland Park’s precise argument on appeal.
The Kansas Uniform Arbitration Act, which is set forth at K.S.A. 5-401 et seq., allows a party to appeal from an order confirming or vacating an arbitration award. K.S.A. 5-418(a). A trial court must presume an arbitration award is valid unless there is proof of one of the specific grounds set forth in K.S.A. 5-412(a). Moreland v. Perkins, Smart & Boyd, 44 Kan. App. 2d 628, 633, 240 P.3d 601 (2010).
K.S.A. 5-412(a) sets forth five circumstances where an arbitration award must be vacated.
“(1) The award was procured by corruption, fraud or other undue means;
“(2) There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any party;
“(3) The arbitrators exceeded their powers;
“(4) The arbitrators refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of K.S.A. 5-405, as to prejudice substantially tire rights of a party; or
“(5) There was no arbitration agreement and the issue was not adversely determined in proceedings under K.S.A. 5-402 and the party did not participate in the arbitration hearing without raising the objection.”
Nevertheless, K.S.A. 5-412(a) then states; “But the fact that the relief was such that it could not or would not be granted by a court of law or equity is not ground for vacating or refusing to confirm the award.” Moreover, our court has considered an additional ground for vacating an arbitration award: when there is a “manifest disregard” of Kansas law by the arbitrator. See Moreland, 44 Kan. App. 2d 628, Syl. ¶ 12; Griffith v. McGovern, 36 Kan. App. 2d 494, 499, 141 P.3d 516 (2006). In Moreland, this court explained that manifest disregard of the law occurs when an arbitrator knows of a governing legal principle but refuses to apply it—not when an arbitrator merely misinterprets the law. 44 Kan. App. 2d at 635.
As mentioned earlier, an appellate court’s standard of review of an arbitration award is highly deferential. The court must affirm an award if the arbitrator acted within the scope of his or her authority. As long as the arbitrator’s errors are not in bad faith or so gross as to amount to affirmative misconduct, an appellate court is bound by the arbitrator s findings of fact and conclusions of law. City of Coffeyville, 270 Kan. at 336. Moreover, an arbitrator is not required to provide reasons for his or her award. Moreland, 44 Kan. App. 2d at 633.
Our court has further explained the standard of review for an arbitration decision:
“ ‘Generally, where the parties have agreed to be bound to a submission to arbitration, errors of law and fact, or an erroneous decision of matters submitted to die judgment of the arbitrators, are insufficient to invalidate an award fairly made. Nothing in the award relating to the merits of the controversy, even though incorrectly decided, is grounds for setting aside the award in the absence of fraud, misconduct, or other valid objections. Further, where an arbitration award made under the Kansas Uniform Arbitration Act is attacked by one of die parties, it is not the function of the court to hear the case de novo and consider the evidence presented to the arbitrators. [Citations omitted.] Ordinarily, an arbitrator’s award will not be subject to judicial revision unless such award is tainted or based on an irrational interpretation of die contract. [Citations omitted.]’ ” Nowicki v. Project Paint Research Labs, 40 Kan. App. 2d 733, 737, 195 P.3d 273 (2008). (Quoting Jackson Trak Group, Inc. v. Mid States Port Authority, 242 Kan. 683, 689, 751 P.2d 122 [1988]).
Once an arbitration award is entered, the finality that courts should afford the arbitration process weighs heavily in favor of upholding the award. According to Kansas precedents, Kansas courts must exercise immense caution when asked to vacate an arbitration award. Because a focal purpose of arbitration agreements is to avoid the expense and delay of court proceedings, judicial review of an arbitration award is veiy narrowly limited. See Moreland, 44 Kan. App. 2d at 635-36. The party seeking that an arbitration award be vacated bears the burden of proving a basis for setting aside the award. Griffith, 36 Kan. App. 2d at 500.
Woodland Park’s statutory arguments fall under K.S.A. 5-412(a)(3),-and we have paraphrased them as follows:
(1) The arbitrator exceeded his power by rewriting the contract because he ruled that Woodland Park’s nonpayment of the $200,000 was a material breach of the contract.
(2) The arbitrator exceeded his power by deleting terms in the contract.
(3) The arbitrator exceeded his power by rewriting the contract to delete the liquidated damages provision. CO
(4) The arbitrator exceeded his power by failing to grant specific performance.
(5) The arbitrator exceeded his power by excluding evidence. ID
(6 )The arbitrator exceeded his power by rewiiting the lien release provisions under the contract. CD
(7) The arbitrator exceeded his power by rewriting the contract to “change its very essence.”
The powers of an arbitrator or arbitrators ordinarily are identified and defined in an agreement between the parties. Here, Section 4.6.2 of the General Conditions contains the parties’ arbitration agreement. This section states that “[c]laims not resolved by mediation shall be decided by arbitration, which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Arbitration Rules [CIAR] of the American Arbitration Association currently in effect.”
In this case, there is no indication that tire parties have agreed to be bound by anything other than tire CIAR. Thus, the CIAR in effect when the arbitration occurred would control. Rule 45(a) of the CIAR (2009 ed.) states that the arbitrator “may grant any remedy or relief that the arbitrator deems just and equitable and within the scope of the agreement of the parties, including but not limited to, equitable relief and specific performance of a contract.”
Woodland Park first argues that the arbitrator exceeded his power because he ruled that Woodland Park’s nonpayment of the $200,000 was a material breach of the contract. In particular, Woodland Park lists several reasons why its nonpayment of the $200,000 was not a material breach of the contract. For instance, Woodland Park argues that because the parties’ disputed payment issue involved only 1.2 percent of the contract, it cannot be said to be a material breach.
But even if Woodland Park is correct that it did not materially breach the contract, it still has failed to meet the high burden required by Kansas precedents to show that the arbitrator’s ruling was outside the scope of his powers. Errors of law and fact, or an erroneous decision of matters submitted to the judgment of the arbitrators, are insufficient to invalidate an award fairly made. Nothing in the award relating to the merits of the controversy, even though incorrectly decided, is grounds for setting aside the award in tire absence of fraud, misconduct, or other valid objections. Nowicki, 40 Kan. App. 2d at 737. Moreover, when there is evidence that the parties’ contract contained a broad arbitration clause, that broad arbitration clause grants arbitrators wide discretion in ruling on the issues submitted for arbitration. In other words, evidence of a broad arbitration clause in the parties’ contract can support the position that the issues addressed by the arbitrators were within the scope of their authority. See City of Lenexa v. C.L. Fairley Constr. Co., Inc., 15 Kan. App. 2d 207, 211, 805 P.2d 507 (arbitrator did not exceed his statutory power when he ruled on procedural matters because parties’ arbitration agreement contained broad arbitration clause), rev. denied 248 Kan. 994 (1991).
Here, the General Conditions of the parties’ contract stated that the CIAR would control their arbitration. Under the CIAR Rule 45(a), tire arbitrator was entitled to “grant any remedy or relief that the arbitrator deems just and equitable.” In addition, an exhibit attached to Woodland Park’s application to vacate or modify and correct arbitration states that “the parties have requested an [arbitration] award based on finding of fact and conclusions of law.” Thus, even if Woodland Park’s nonpayment of the $200,000 was not a material breach of the contract, the arbitrator’s conclusion to the contraiy alone is insufficient to set aside the arbitrator’s ruling. As Woodland Park has failed to show that one of the previously mentioned limited reasons for vacating an arbitration award applies, we reject Woodland Park’s excess of power argument.
The same rationale applies to Woodland Park’s second, third, sixth, and seventh excess of power arguments, i.e., that the arbitrator exceeded his power in: (2) deleting terms in the contract; (3) rewriting the contract to delete the liquidated damages provision; (6) rewriting the hen release provisions under the contract; and (7) rewriting the contract to “change its very essence.” Woodland Park has failed to show that any of tírese decisions were outside the arbitrator’s powers under the terms of the contract or the CIAR. In fact, Neighbors Construction contends that “[Woodland Park’s arguments on appeal are] yet another attempt to couch this as an excess of power issue; however [Woodland Park] is requesting the Court to reevaluate the evidence submitted to the Arbitrator and come to a different conclusion.” The trial court asserted a similar position: “[Woodland Park] asks the Court to substitute its judgment for that of the arbitrator. This Court does not believe that is [its] function and will not do so.”
Neighbors Construction and the trial court’s positions are correct. Although Woodland Park maintains that the arbitrator exceeded his powers by either rewriting the contract or deleting some of its terms, the substance of Woodland Park’s argument asks us to reevaluate the evidence under the arbitrator’s decision. We refrain from doing so. Woodland Park’s disagreement with the arbitrator’s decision is insufficient to vacate the arbitration award. Consequently, Woodland Park’s second, third, sixth, and seventh excess of power arguments must fail.
Woodland Park also fails to show that the arbitrator exceeded his power under its fourth excess of power argument that the arbitrator exceeded his power by failing to grant specific performance. Under CIAR Rule 45(a) the arbitrator was entitled to “grant any remedy or relief that the arbitrator deems just and equitable . . . including but not limited to . . . specific performance of a contract.” Because the arbitrator was entitled to grant any remedy or relief, he did not exceed his power in failing to grant specific performance. In fact, the arbitrator was granted the power to choose any remedy that was just and equitable. Certainly, the arbitrator could have chosen to grant specific performance. But because the arbitrator was granted such a broad scope of power, it cannot be said that he exceeded his power in granting a remedy other than specific performance. Consequently, Woodland Park’s fourth excess of power argument must fail.
Finally, Woodland Park also fails to show that the arbitrator exceeded his power under its fifth excess of power argument—that the arbitrator exceeded his power by excluding evidence. In particular, Woodland Park argues that the arbitrator exceeded his power when he “refused to allow evidence of why [a] professional would not ‘seal’ his work.” Woodland Park also argues that “tire second arbitrator absolutely refused to hear any evidence that could have immediately eliminated [many] of the questions about financing in this case.” In support of its argument, Woodland Park cites to a portion of the arbitration transcript that reads as follows:
“[COUNSEL WEIR]: ... I notice that it’s not sealed. Do you seal any of your work?
“[WITNESS]: I don’t routinely seal any of my correspondence, letters or reports, no.
“[COUNSEL WEIR]: For the record, can you tell me what sealing a document means to you?
“[THE ARBITRATOR]: I understand.
“[COUNSEL WEIR]: Well, I mean, just doing it for tire record.
“[THE ARBITRATOR]: I understand. Let’s move on please. You’re not making a record on that point for the Court to review this deal. I represent people before die board of technical professions. I understand what a statute requires and what it means.
“[COUNSEL WEIR]: Okay.
“[COUNSEL WEIR]: So were any of die documents tiiat you provided in this case any of the letters, your report, sealed?
“[WITNESS]: I routinely do not seal my reports.”
The arbitrator’s evidentiary powers are contained under CIAR Rule 33. Rule 33(a) and (b) (2009 ed.) read as follows:
“(a) The parties may offer such evidence as is relevant and material to die dispute and shall produce such evidence as the arbitrator may deem necessary to an understanding and determination of the dispute. Conformity to legal Rules of evidence shall not be necessary.
“(b) The arbitrator shall determine the admissibility, relevance, and materiality of the evidence offered. The arbitrator may request offers of proof and may reject evidence deemed by die arbitrator to be cumulative, unreliable, unnecessary, or of slight value compared to the time and expense involved. All evidence shall be taken in the presence of all of the arbitrators and all of the parties, except where: 1) any of the parties is absent, in default, or has waived die right to be present, or 2) the parties and the arbitrators agree otherwise.”
Here, Woodland Park has failed to give any indication as to how the arbitrator’s actions exceeded the scope of his authority, i.e., that the arbitrator’s actions fall outside his authority to determine the admissibility, relevance, and materiality of the evidence offered. Because the arbitrator had the power to make these deci sions, he did not exceed his authority in ruling on the admissibility of evidence. Indeed, the arbitrator allowed Woodland Park to question the witness about the seal. Although the arbitrator could have used a better choice of words, he merely stated that he was familiar with the applicable statutes and understood them. Thus, Woodland Park has failed .to meet its burden to show that the arbitrator exceeded his power by excluding evidence. Consequently, Woodland Park’s fifth excess of power argument must fail.
We also note that Woodland Park cites to Kopp v. Kopp, 44 Kan. App. 2d 573, 239 P.3d 878 (2010). But Woodland Park fails to indicate how the Kopp case supports its position that the arbitrator exceeded his power. Given the distinctly different posture of the case now before us, Kopp is distinguishable.
Kopp involved a real estate contract dispute between two brothers. After litigation was initiated, tire brothers essentially agreed to settle their dispute, but they were unable to reconcile their differences over the settlement agreement. Thus, one of the brothers moved to enforce the settlement agreement. The trial court determined that an agreement had been reached with respect to all the material terms, and the court then resolved the nonmaterial discrepancies. As part of the journal entry, the trial court incorporated a copy of the contract, which contained an arbitration clause. One of the brothers later moved for arbitration, at which the arbitrator ruled on an issue the court had already resolved: “the existence of a valid and enforceable agreement between the parties. 44 Kan. App. 2d at 582. The Kopp court held, in part that the arbitrator exceeded his power when he decided an issue that had already been determined by the trial court. The Kopp court reasoned:
“The arbitrator had the power to resolve disputes with respect to the parties’ rights and obligations under the real estate sales, contract which embodied the parties’ settlement agreement. Notwithstanding tire district court’s directions to the contrary, the arbitrator did not have the pqwer to determine whether the contract (which was the basis for the arbitrator’s power to act) was in force. As discussed earlier, that was a matter for the district court. In ruling on the enforceability of the parties’ contract, the arbitrator exceeded his power. Accordingly, the district court erred in failing to vacate the arbitrator’s award.” Kopp, 44 Kan. App. 2d at 582-83.
In this case, however, no such problem exists. Unlike Kopp, where the arbitrator decided an issue that had already been determined by the trial court, die arbitrator here simply resolved a dispute with respect to Neighbors Construction and Woodland Park’s rights under the construction contract: whether Neighbors Construction was entitled to damages for Woodland Park’s alleged breach of contract. Thus, even if Woodland Park had explained its argument adequately, its rebanee on Kopp is misplaced because Kopp is distinguishable from this case.
As stated earlier, Woodland Park commingles nonstatutory grounds with statutory grounds to support its argument that the arbitration award should be vacated, which makes Woodland Park’s precise argument more difficult to understand. In doing so, Woodland Park seems to maintain that the arbitrator’s award was in manifest disregard of the law. For instance, Woodland Park contends that “[t]he 2nd Arbitrator[’s] refusal to even recognize or apply specific terms in this Contract is also a 'manifest disregard of the law’ requiring enforcement of contract terms and not re-writing or making new contracts for the parties.” In addition, Woodland Park argues “[s]uch refusal to recognize contract provisions and remedies for one party at the same time it applies other provisions but the same remedy to the other party is a 'manifest disregard for the law’ and exceeds the Arbitratorias] ‘power.’ ”
Kansas courts have recognized nonstatutory grounds for vacating an arbitration award when an applicant demonstrates the arbitrator’s award is in manifest disregard of the law. See e.g., Griffith, 36 Kan. App. 2d at 499 (citing Jackson Trak Group, 242 Kan. at 689); see also Sheldon v. Vermonty, 269 F.3d 1202, 1206 (10th Cir. 2001) (manifest disregard of the law, violation of public policy, and denial of a fundamentally fair hearing). Manifest disregard of the law occurs when the arbitrator knew of a governing legal principle yet refused to apply it, but this exception does not apply when an arbitrator simply misinterprets the law. Moreland, 44 Kan. App. 2d at 635; see Jackson Trak Group, 242 Kan. at 689; ARW Exploration Corp. v. Aguirre, 45 F.3d 1455, 1463 [10th Cir. 1995]).
Woodland Park has failed to cite to any Kansas case, nor does our research find any case, where an arbitration award was actually overturned for a manifest disregard of the law. See Griffith, 36 Kan. App. 2d at 500; Dunn v. A.G. Edwards & Sons, Inc., No. 96,669, 2007 WL 2767997, at *7 (Kan. App. 2007) (unpublished opinion) (“[The] Dunns have failed to demonstrate the arbitrator manifestly disregarded the law in calculating damages, and we conclude the district court did not err in confirming the award.”). Although Woodland Park maintains that the arbitrator showed a manifest disregard of the law, it has failed to present evidence to show that die arbitrator knew of a governing legal principle but refused to apply it. Instead, Woodland Park once again argues that the arbitrator should have interpreted the contract in such a way as to benefit its position. Thus, Woodland Park’s manifest disregard of the law argument is not warranted by the law. When dealing with the issue of manifest disregard of the law, this court declared:
“Courts must tread lightly in the area of manifest disregard of the law. The statutory mandate of K.S.A. 5-412(a) indicates the legislature’s clear intention to not permit a court to vacate or refuse to confirm an award even if the relief ‘could not or would not be granted by a court of law or equity.’
“In short, even though the limited scope of review of what could appear to be very odd arbitration awards might cause cold shivers to go down the spines of reviewing courts, highly limited review is the law.” Moreland, 44 Kan. App. 2d at 636.
Woodland Park has failed to prove that the arbitrator showed a manifest disregard of the law. Thus, Woodland Park’s nonstatutory grounds argument must fail.
Next, Woodland Park argues that the arbitrator’s award was based on an irrational interpretation of the contract. Our Supreme Court has stated that “ordinarily, an arbitrator’s award will not be subject to judicial revision unless such award is tainted or based on an irrational interpretation of the contract.” Jackson Trak Group, 242 Kan. at 689. Although several Kansas appellate cases use the phrase “irrational interpretation of the contract,” it seems that no Kansas case has stated what is- required to show that the award was based on an irrational interpretation of the contract. Kansas cases have simply summarily dismissed this argument. See Foley Co. v. Grindsted Products, Inc., 233 Kan. 339, 347, 662 P.2d 1254 (1983) (“[Arbitration awards may be vacated only if they were tainted by improbity or based on a completely irrational interpretation of the contract. [Citation omitted]. No such conditions exist in this case and [the defendant general contractor] has never asserted or even attempted to meet such a condition to set aside the arbitration award.”).
Thus, we look to other jurisdictions for guidance. An arbitration award may be found irrational only under extraordinary circumstances. Nat. R.R. Pass. Corp. v. Chesapeake & O. Ry., 551 F.2d 136, 142 (7th Cir. 1977) (“[Assuming ‘irrationality’ is a possible ground for vacating an award under the Federal Arbitration Act, its application will be reserved [only] for truly extraordinary circumstances.”). Indeed, when there is a rational basis for the award, it must be upheld. Carte Blanche (Singapore) v. Carte Blanche Intern., 683 F. Supp. 945, 951 (S.D.N.Y. 1988). When the facts and the law support the arbitrator’s decision, the arbitration award may be shown to have a rational basis. See, e.g., Amoco Overseas Oil Co. v. Astir Navigation, 490 F. Supp. 32, 38 (S.D.N.Y. 1979); Mobile Oil Indonesia v. Asamera Oil, Etc., 487 F. Supp. 63, 65 (S.D.N.Y. 1980) (motion to vacate arbitration denied because arbitrators’ decision supported by “ ‘barely colorable justification’ arbitrators based award on applicable state law, and arbitrators construed agreement as requested); In Matter of Manhattan & Bronx Surface Transit Operating Authority v. Local 100, Transport Workers Union of America, 84 A.D.2d 749, 750, 443 N.Y.S.2d 875 (1981) (arbitration award not irrational where agreement did not specify details of scheduling, parties’ past practice established scheduling routine, and issue had been left to discretion of arbitrator).
Woodland Park argues that the arbitrator’s decision was based on an irrational interpretation of the contract because he ruled that Woodland Park materially breached the contract by its failure to pay Neighbors Construction the $200,000 under Application 20R. Even so, the facts of this case do not present an extraordinary situation where the irrational interpretation doctrine should be applied.
In this case, the arbitrator ruled that Woodland Park materially breached the contract because it failed to pay Neighbors Construe tion the $200,000 under Application 20R. Nevertheless, the essence of the arbitrator s ruling does not rely on the material breach, because the arbitrator deducted “credits” and correction or completion costs from Neighbors Construction’s arbitration award. For these reasons, Woodland Park’s argument that the arbitrator’s award was based on an irrational interpretation of the contract fails.
Woodland Park has also raised numerous other statutory and nonstatutoiy arguments as to why the arbitration award should be vacated. None of Woodland Park’s arguments is convincing. Consequently, we affirm the trial court’s decision not to vacate the arbitration award.
Attorney Fees
Next, Woodland Park argues that the arbitrator exceeded his power when he awarded Neighbors Construction attorney fees and interest. Specifically, Woodland Park maintains the following: (1) that the arbitrator exceeded his power in awarding Neighbors Construction attorney fees and interest because he applied the wrong statute; (2) that the arbitrator exceeded his power in awarding Neighbors Construction attorney fees and interest because Section 4.3.10 of the parties’ contract contained a waiver of consequential damages; and (3) that the arbitrator exceeded his power in awarding Neighbors Construction attorney fees because he ignored the requirement in the applicable statute that there be a prevailing party. On the other hand, Neighbors Construction disputes Woodland Park’s assertions and contends that the arbitrator did not exceed his power because the CIAR expressly granted the arbitrator authority to award attorney fees and interest and because the consequential damages waiver under Section 4.3.10 does not relate to an award of attorney fees and interest.
The applicable standard of review of an arbitration award is detailed extensively in the previous sections. Thus, it will not be repeated here.
In support of its argument, Woodland Park relies on Flenory v. Eagle’s Nest Apartments, 28 Kan. App. 2d 906, 22 P.3d 613 (2001). Woodland Park maintains that Flenory “specifically requires Va- eating’ an award that improperly applies a statute that does not apply.” Neighbors Construction disagrees and argues the following:
“Flenory is distinguishable from this case in that there was no motion filed to vacate an arbitration award but instead was a party’s attempt to eliminate an arbitrator’s enforcement of a statutory cap on the damages award. Furthermore, Flenory stands only for the holding that where the parties want a statutory cap to apply to any arbitration award it must be included in the parties’ written agreement. As set forth below, Flenory is further distinguishable in that the parties here specifically agreed that the AAA Rules would apply which permits the award of fees.”
Neighbors Construction’s argument is correct. In Flenory, a mother brought a wrongful death action against an apartment complex after her son nearly drowned in a pool owned by the complex and later died in a hospital. The parties submitted the claim to binding arbitration under a high-low award agreement in which the minimum award would be $50,000 and the maximum $300,000. If the arbitrator’s award fell between tiróse two amounts, then the parties’ agreed that the amount of the award would control. After a hearing, the arbitrator made the following award:
“ 1 have determined that the net award, after adjustment for fault of plaintiff and others, is as follows: for the survival action, no award: for the wrongful death action, pecuniary damages of $27,339.79 and nonpecuniary damages of either $100,000.00 or $137,500.00, depending on loheiher the one hundred thousand dollar cap or the two hundred fifty thousand dollar cap applies.’ ” 28 Kan. App. 2d at 906-07.
The arbitrator referred to the two damages caps because our Kansas Legislature had decided to increase the cap under K.S.A. 60-1903 for nonpecuniary damages in wrongful death actions from $100,000 to $250,000 effective July 1, 1998. See L. 1998, ch. 68, sec. 1. After the arbitrator made his decision, Flenory moved to have the trial court interpret the award, i.e., to determine whether the statutory cap applied to the decision and, if so, whether the $100,000 or the amended statutory cap of $250,000 applied. The trial court held that the $100,000 cap was applicable to the non-pecuniary portion of the arbitrator’s award. The Flenory court held that “the arbitrator exceeded his authority by providing for application of a statutory cap to Flenory’s nonpecuniary damages.” 28 Kan. App. 2d at 906. The Flenory court’s reasoning reads as follows:
“The arbitrator was not empowered to apply a cap not agreed to by the parties. Here, in this quasi-judicial proceeding, the high-low agreement was a stand-in for the statutory cap.
“In our view, the arbitrator in this case can be compared to the jury in the traditional personal injury trial. Such a jury is instructed to decide liability and arrive at the amounts of various types of damages, if any. Only later does the court reduce any nonpecuniary damages award if it exceeds the applicable cap. This is what tire parties or, in the event of a disagreement, the court would have done here if it had been necessaiy to confirm the award to the high-low agreement.” 28 Kan. App. 2d at 907.
In other words, the Flenory court reasoned that the arbitrator exceeded his powers because he made a damages award outside the scope of his authority.
Unlike Flenory, where the arbitrator exceeded his power in granting an award outside the scope of his authority, the arbitrator in this case did not grant an award outside the scope of his authority. As mentioned by Neighbors Construction, the contract in this case expressly gave the arbitrator the authority to award attorney fees and interest. The applicable CIAR Rule 45(d), states that “[t]he award of the arbitrator may include: (i) interest at such rate and from such date as the arbitrator may deem appropriate; and (ii) an award of attorneys’ fees if all parties have requested such an award or it is authorized by law or their arbitration agreement.” Thus, because CIAR Rule 45(d) expressly gave the arbitrator the authority to award attorney fees, he did not exceed his authority in doing so.
Moreover, Woodland Park has failed to show why the consequential damages waiver clause under Section 4.3.10 applies to attorney fees or interest. In Kansas, common-law consequential damages are defined as damages that are recoverable from a breach of contract, which are limited to the damages that arise from the breach itself, or damages drat “may reasonably be assumed to have been within the contemplation of both parties as the probable result of the breach. [Citations omitted.]” Hochman v. American Family Ins. Co., 9 Kan. App. 2d 151, 153, 673 P.2d 1200 (1984). Attorney fees do not fall under tire category of consequential damages because they are treated separately by Kansas courts. See, e.g., Estate of Kirkpatrick v. City of Olathe, 289 Kan. 554, 215 P.3d 561 (2009) (containing a separate analysis for award of attorney fees and consequential damages); Hochman, 9 Kan. App. 2d at 155. The treatment of interest, however, is not as clear; our court has held that interest payments can be included as consequential damages. See Hochman, 9 Kan. App. 2d at 154.
The consequential damages waiver clause is contained under Section 4.3.10 of the General Conditions, which reads as follows:
“Claims for Consequential Damages. The Contractor and Owner waive Claims against each other for consequential damages arising out of or relating to this Contract. This mutual waiver includes-.
.1 damages incurred by the Owner for rental expenses, for losses of use, income, profit, financing, business and reputation, and for loss of management or employee productivity or of the services of such persons; and
.2 damages incurred by the Contractor for principal office expenses including the compensation of personnel stationed there, for losses of financing, business and reputation, and for loss of profit except anticipated profit arising directly from the Work.” (Emphasis added.)
Woodland Park’s waiver argument fails for several reasons. First, Section 4.3.10 includes the claims that are waived under the consequential damages clause. This clause does not include attorney fees or interest. Because this clause does not include these items, it cannot be said that they were waived by Neighbors Construction. Second, attorney fees are not considered as consequential damages in Kansas. Thus, even if the waiver applied, Woodland Park’s argument would still fail because attorney fees are treated separately from consequential damages. Third, to the extent that interest could be considered as consequential damages, Woodland Park’s argument still fails because the consequential damages waiver provision is inconsistent with the power tiiat was granted to the arbitrator under CIAR Rule 45. Because Rule 45 gave the arbitrator the express power to award interest, the arbitrator’s power was not limited by the waiver provision. Regardless, the arbitrator’s power under Rule 45 is not inconsistent with the consequential damages waiver clause under Section 4.3.10 here because the waiver clause fails to make any reference to interest. Thus, the arbitrator did not exceed his powers in awarding attorney fees and interest to Neighbors Construction.
Woodland Park next argues that the award of attorney fees and interest was improper here because the arbitrator applied the Kansas Fairness in Private Construction Contract Act, K.S.A. 16-1801 et seq., instead of the Kansas Fairness in Public Construction Contract Act, K.S.A. 16-1901 et seq. In addition, Woodland Park argues that even if the arbitrator’s use of the wrong statute is insufficient to vacate tire award, the award should be vacated because attorney fees can be awarded only to the prevailing party. In other words, Woodland Park argues that Neighbors Construction should not have received an award of attorney fees and interest because Neighbors Construction was not the prevailing party under the arbitration ruling.
The relevant Private Construction Contract Act statute, K.S.A. 16-1806, reads as follows:
“In any action to enforce K.S.A. 16-1803,16-1804 or 16-1805, and amendments thereto, including arbitration, the court or arbitrator shall award costs and reasonable attorney fees to the prevailing party. Venue of such an action shall be in the county where the real property is located. The hearing in such an arbitration shall be held in the county where the real property is located.”
The relevant Public Construction Contract Act statute, K.S.A. 16-1906, reads as follows:
“In any action to enforce K.S.A. 16-1903,16-1904 or 16-1905, and amendments thereto, including arbitration, between a contractor and subcontractors or subcontractors and subcontractors, the court or arbitrator shall award costs and reasonable attorney fees to die prevailing party. Venue of such an action shall be in the county where the real property is located and under Kansas law. The hearing in such an arbitration shall be held in the county where tire real property is located.”
Woodland Park has failed to show why the arbitrator’s decision should be vacated because of the use of K.S.A. 16-1806 instead of K.S.A. 16-1906. As previously discussed in detail, errors of fact and law alone are insufficient to vacate an arbitration award. Thus, Woodland Park is not entitled to relief even if the arbitrator relied on the wrong statute. Moreover, any error here would have been harmless as the substance of the two statutes is the same in this case. Thus, the arbitrator did not err in awarding Neighbors Construction attorney fees and interest.
The trial court adequately handled Woodland Park’s other argument that Neighbors Construction was not the prevailing party. The trial court stated:
“[Woodland Park] argues [that] to be the prevailing party [Neighbors Construction] must totally prevail. In Szobszlay v. Glessner, 233 Kan. 475, 482, 664 P.2d 1327 (1983), the Court indicated successful has been held to be synonymous with ‘prevailing.’ The Court defined successful party as ‘substantially successful in a cause of action, although tire judgment awarded him may have been reduced by an amount awarded tire Defendant on a counterclaim or appeal.’ The Court finds [Woodland Park’s] position on tins point without merit.”
The trial court is correct. Here, Woodland Park argues that Neighbors Construction was not the prevailing party because Woodland Park received “credits” for correction or completion costs as a deduction from Neighbors Construction’s arbitration award. But Woodland Park’s argument fails as the trial court correctly points out that a successful party is defined as a party that is “ ‘substantially successful in a cause of action, although the judgment awarded him may have been reduced by an amount awarded the Defendant on a counterclaim or appeal.’ ” Here, the arbitrator stated: “I find in favor of Neighbors Construction Co., Inc. and enter this Award against Woodland Park at Soldier Creek, LLC in the amount of $1,277,770.31.” Thus, Neighbors Construction clearly was the prevailing party. Consequently, Woodland Park’s argument carries little weight and must fail.
For the foregoing reasons, the trial court did not err in confirming the arbitrator’s award of attorney fees and interest.
Did the Trial Court Err When It Denied Woodland Park’s Motion to Add the Arbitration Transcript to the Record on Appeal?
Finally, Woodland Park maintains that the trial court erred when it denied its motion to add certain documents to the record. Nevertheless, Woodland Park fails to cite any authority to support its argument that these documents should have been included in the trial court record and in the record on appeal. Neighbors Construe tion points out Woodland Park’s deficient argument and states: “[Woodland Park] provides no legal support for its contention that the District Court erred by refusing to transfer the arbitration transcript record.” “ ‘ “Simply pressing a point without pertinent authority, or without showing why it is sound despite a lack of supporting authority or in the face of contrary authority, is akin to failing to brief an issue.” ’ ” McGinty v. Hoosier, 291 Kan. 224, 244, 239 P.3d 843 (2010) (quoting State v. Torres, 280 Kan. 309, 321, 121 P.3d 429 [2005]). An issue not briefed by the appellant is deemed waived or abandoned. See Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 395, 204 P.3d 562 (2009). Consequently, Woodland Park’s argument is deemed waived or abandoned and will not be addressed in diis opinion.
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Bruns, J.:
Michael L. Hall was injured when he fell from a ladder while working on a roof for Knoll Building Maintenance, Inc. (Knoll Corporation). The Knoll Corporation is a Kansas for profit corporation, and all of the corporation’s shareholders are related to one another. Following his work-related injury, Hall made a claim for workers compensation benefits. His claim was preliminarily denied by an administrative law judge (ALJ), who found that the Kansas Workers Compensation Act (KWCA), K.S.A. 44-501 et seq., did not apply to the Knoll Corporation because all of its shareholders are members of the same family.
In reviewing the ALJ’s preliminary hearing order, the Kansas Workers Compensation Board (Board) concluded that the exclusion for family members set forth in K.S.A. 44-505(a)(2) does not apply to the Knoll Corporation because corporations cannot have a family by marriage or consanguinity. In reaching this conclusion, the Board noted that K.A.R. 51-11-6 expressly states that “[t]he provision in K.S.A. 44-505 excluding the payroll of workers who are members of the employer’s family shall not apply to corporate employers.” Although die Board remanded Hall’s workers compensation claim to die ALJ for further consideration, the Kansas Workers Compensation Fund (Fund) filed a petition for judicial review in this court. Because we find that the Board correctiy interpreted K.S.A. 44-505(a)(2) and that K.A.R. 51-11-6 is valid, we affirm.
Factual and Procedural Background
On May 20,2011, Hall injured his right shoulder at work. Several weeks later, Hall filed an application for hearing with the Division of Workers Compensation, seeking to recover workers compensation benefits for his injury. In his initial application for hearing, Hall listed Doug Knoll—who is an uncle of Hall’s wife and one of tire shareholders in the Knoll Corporation—as his employer. But Hall later filed an amended application for hearing in which he listed his employer as the Knoll Corporation.
In response, the Knoll Corporation alleged that Hall was an independent contractor and not an employee. Likewise, the Knoll Corporation alleged that although it was not insolvent, it did not have workers compensation coverage on the date of Hall’s accident and was not financially able to pay the workers compensation ben efits requested by Hall. As such, the Fund was impleaded into the workers compensation case pursuant to K.S.A. 44-532a and actively participated in the workers compensation proceedings.
At a preliminary hearing held by the ALJ on September 8, 2011, tire parties stipulated that the gross annual payroll of the Knoll Corporation was in excess of $20,000 and that the corporation would be covered by the KWCA if Hall was deemed to be an employee rather than an independent contractor. Later in the preliminary hearing, die ALJ raised the issue of whether K.S.A. 44-505(a)(2) was applicable to this case, and the Knoll Corporation was allowed to withdraw from the stipulation that it would be covered by the KWCA if Hall was found to be an employee of the corporation. At the conclusion of the preliminary hearing, the ALJ granted the parties leave to file written arguments on the issues of (1) whether Hall was an employee or an independent contractor and (2) whether the Knoll Corporation was exempt from the Act under K.S.A. 44-505(a)(2).
On September 30, 2011, the ALJ issued a preliminary hearing order in which he found that Hall was an employee of the Knoll Corporation. But the ALJ also found that the Knoll Corporation was not subject to the KWCA at the time of Hall’s injury because “its payroll, exclusive of wages paid to ‘member[s] of the employer’s family by marriage or consanguinity’ did not exceed $20,000.00 for the year in which [Hall’s] injury was sustained.” In reaching this decision, the ALJ determined that K.A.R. 51-11-16—which states that the exclusion of wages paid to members of an employer’s family shall not apply to corporate employers—is invalid because it conflicts with the provisions of K.S.A. 44-505(a)(2).
Hall filed an application for review of the ALJ’s preliminary hearing order with the Board on October 12, 2011. In his application for review, Hall identified the issue presented as whether the ALJ erred in concluding that the Act did not apply to the Knoll Corporation. Specifically, Hall argued that K.A.R. 51-11-16 did not conflict with K.S.A. 44-505(a)(2). As authorized by K.S.A. 44-551(i)(2)(A), tire review of the AJL’s preliminary hearing order was performed by only one board member rather than by the entire Board.
On November 29, 2011, a member of the Board issued an order partially reversing the ALJ’s preliminary hearing order. Expressly, the Board found that the exclusion set forth in K.S.A. 44-505(a)(2) is not applicable to the Knoll Corporation because “a corporation cannot be said to have any family members by marriage or consanguinity.” In addition, the Board found that neither it nor the ALJ had jurisdiction or authority to determine whether K.A.R. 51-11-16 is invalid. Thus, the Board concluded that the Knoll Corporation was covered by the provisions of the KWCA, and Hall’s claim for workers compensation benefits was remanded to the ALJ for further consideration.
On December 21, 2011, the Fund filed a petition for judicial review with this court. In its petition, the Fund asks that the order entered by the Board be reversed. The Fund also asks that this court find that K.S.A. 51-11-6 is void as a matter of law. In response to the petition, Hall filed a motion to dismiss in which he argued that the order entered by the Board on November 29, 2011, was not a final order subject to judicial review. On January 26, 2012, Hall’s motion to dismiss was denied because the petition for judicial review presents a jurisdictional issue reviewable by this court.
Analysis
Issue Presented and Standard of Review
The sole issue presented is whether K.A.R. 51-11-6 conflicts with K.S.A. 44-505(a)(2). Specifically, the Fund and the Knoll Corporation—which has adopted the Fund’s legal arguments in its brief—contend that K.A.R. 51-11-6 is void because it contravenes the provisions of K.S.A. 44-505(a)(2). Consequently, they argue that the Division of Workers Compensation lacks jurisdiction to adjudicate the merits of Hall’s claim for workers compensation benefits. On the other hand, Hall contends that K.A.R. 51-11-6 and K.S.A. 44-505(a)(2) are not in conflict. Rather, Hall argues that the regulation simply confirms that the family exclusion set forth in the statute is not applicable to corporate employers.
Our standard of review in addressing the issue presented is statutorily controlled by the Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq.; see also K.S.A. 2011 Supp. 44-556. Under the KJRA, we may grant relief if the Board erroneously interpreted or applied the law. See K.S.A. 2011 Supp. 77-621(c)(4); Redd v. Kansas Truck Center, 291 Kan. 176, 187, 239 P.3d 66 (2010); Higgins v. Abilene Machine, Inc., 288 Kan. 359, 361, 204 P.3d 1156 (2009).
Interpretation of a statute is a question of law subject to unlimited review. In reviewing a workers compensation statute, we afford “no significant deference” to the interpretation given to it by an ALJ or by the Board. Instead, we must independently interpret statutes by ascertaining the intent of the legislature. Redd, 291 Kan. at 187-88; Higgins, 288 Kan. at 361.
“The first step is to ascertain legislative intent through the language employed, giving ordinary words their ordinary meaning.” Redd, 291 Kan. at 188 (citing Higgins, 288 Kan. at 361-62). “When a statute is plain and unambiguous, [we] must give effect to the statute’s express language, instead of determining what the law should or should not be. Appellate courts will not speculate about legislative intent or read a statute in a manner that adds something not readily contained within it.” Redd, 291 Kan. at 188 (citing Higgins, 288 Kan. at 362).
The same standard of review applies to the interpretation of an administrative regulation as applies to the interpretation of a statute. See Cole v. Mayans, 276 Kan. 866, 873, 80 P.3d 384 (2003); Jones v. The Grain Club, 227 Kan. 148, 150, 605 P.2d 142 (1980). Rules and regulations “are presumed to be valid, and one who attacks them has the burden to show their invalidity.” Ruddick v. Boeing Co., 263 Kan. 494, 499, 949 P.2d 1132 (1997) (citing Capital Electric Line Builders, Inc. v. Lennen, 232 Kan. 379, 383, 654 P.2d 464 [1982]). But “[t]hose rules or regulations that go beyond the authority authorized, which violate the statute, or are inconsistent with the statutory powers of the agency, are void.” Ruddick, 263 Kan. 494, Syl. ¶ 4.
Interpretation of K.S.A. 44-505(a)(2) and K.A.R 51-11-6
With limited exceptions, the KWCA applies to all employers that have an annual payroll exceeding $20,000. K.S.A. 44-505. Employers subject to the KWCA must maintain workers compensation insurance. K.S.A. 2011 Supp. 44-532(b); see Hill v. Kansas Dept. of Labor, 42 Kan. App. 2d 215, 220, 210 P.3d 647 (2009), aff'd in part and revd in part on other grounds 292 Kan. 17, 248 P.3d 1287 (2011). Under the direction of the Secretary of Labor, the Director of Workers Compensation has been charged with administering the KWCA. See K.S.A. 2011 Supp. 75-5708(a).
One of the primary duties of the Director of Workers Compensation is to “adopt and promulgate such rules and regulations as [he or she] deems necessary for the purposes of administering and enforcing the provisions of the workers compensation act.” K.S.A. 44-573. Upon filing with tire Secretary of State, the rules and regulations adopted by the Director of Workers Compensation shall have the force and effect of law. See K.S.A. 77-425; Ruddick, 263 Kan. at 499.
K.S.A. 44-505(a)(2) provides that the KWCA does not apply to
“any employment . . . wherein tire employer had a total gross annual payroll for the preceding calendar year of not more than $20,000 for all employees and wherein the employer reasonably estimates that such employer will not have a total gross annual payroll for the current calendar year of more than $20,000 for all employees, except that no wages paid to an employee who is a member of the employer s family by marriage or consanguinity shall be included as part of the total gross annual payroll of such employer for purposes of this subsection.” (Emphasis added.)
To assist in the determination of gross annual payrolls under K.S.A. 44-505(a)(2), die Director of Workers Compensation adopted K.A.R. 51-11-6, which states:
“In computing the gross annual payroll for an employer to determine whether they are subject to the workers’ compensation act, all payroll paid by that employer to all workers shall be included. The computation shall include all payroll whether or not that payroll is paid to employees in the state of Kansas or outside the state of Kansas.
“The provision in K S.A. 44-505 excluding the payroll of workers who are members of the employer s family shall not apply to corporate employers.
“A corporate employer’s payroll for purposes of determining whether the employer is subject to the workers’ compensation act shall be determined by the total amount of payroll paid to all corporate employees even when a corporate employee has elected out of the workers’ compensation act pursuant to K.S.A. 44-543.” (Emphasis added.)
Here, the parties agree that the language of K.S.A. 44-505(a)(2) is not ambiguous. Consequently, we must give effect to the express language used in the statute. In doing so, we must give ordinary words their ordinary meanings, and we must resist the temptation of determining what the law should or should not be. See Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, Syl. ¶ 1, 214 P.3d 676 (2009).
Based on the plain and unambiguous language used in K.S.A. 44-505(a)(2), we find that the legislature intended to exclude small businesses from the KWCA with gross annual payrolls of not more than $20,000. Further, we find that the legislature intended the wages of employees who are family members of the employer—by marriage, by blood, or by a common ancestor—are not to be included in calculating whether the employer s gross annual payroll is greater than $20,000.
As Kansas courts have recognized, a corporation cannot have a family or be a family member. See Sears v. Wilson, 10 Kan. App. 2d 494, 495, 704 P.2d 389 (1985) (“a corporation cannot have a family, a household, or a spouse”); accord Thornburg v. Schweitzer, 44 Kan. App. 2d 611, 623, 240 P.3d 969 (2010), rev. denied 292 Kan. 969 (2011). This is also true in Delaware, the state from which much of Kansas corporate law is derived. See Ruggiero v. Montgomery Mut. Ins. Co., No. Civ.A. 03C-04-022ESB, 2004 WL 1543234, at *2 (Del. Super. 2004) (unpublished opinion) (“It is well established in Delaware that a corporation cannot have ‘family members’. . . .”).
The Fund equates the shareholders—who are all members of the Knoll family—-with the Knoll Corporation. In doing so, however, the Fund disregards the fact that a corporation “has a legal personality distinct from the natural persons who make it up.” (Emphasis added.) Matney v. Matney Chiropractic Clinic, 268 Kan. 336, Syl. ¶ 3, 995 P.2d 871 (2000). In other words, “a corporation is an artificial being” that “must be thought of without reference to members who compose it.” 268 Kan. at 341.
The Fund notes that pursuant to K.S.A. 2011 Supp. 44-508(a) the term “ ‘[e]mployer includes: (1) Any person or body of persons, corporate or unincorporated, and the legal representative of a deceased employer or the receiver or trustee of a person, corporation, association or partnership.” Of course, K.S.A. 44-508(a) also includes the state, cities, counties, school districts, and other political subdivisions under the definition of employer. In other words, K.S.A. 2011 Supp. 44-508(a) simply lists the various types of persons and entities that are to be considered employers under the KWCA. In the present case, it is undisputed that the employer is a corporation.
In reviewing the definitions section of the KWCA, we also note that K.S.A 2011 Supp. 44-508(c)(2) defines the phrase “[m]embers of a family” to mean a “legal spouse and children [including a birth child or an adopted child],. . . parents or grandparents,. . . grandchildren, or . . . brothers and sisters.” We find this definition to be consistent with the language used by the legislature in K.S.A. 44-505(a)(2) because both statutes refer to natural persons—not artificial legal entities—as members of a family. Thus, we conclude that the family member exclusion set forth in K.S.A. 44-505(a)(2) only applies to natural persons and is not applicable to artificial entities such as corporations because they are separate legal entities distinct from those who own shares in the corporation.
In light of our interpretation of K.S.A. 44-505(a)(2), we do not find that K.A.R. 51-11-6 is invalid. Rather, we find that the regulation correctly states the current status of Kansas law—that the provision in K.S.A. 44-505(a)(2) excluding the wages of employees who are members of the employer s family does not apply to corporate employers. Because a corporate employer cannot have a family, K.A.R. 51-11-6 does not conflict with K.S.A. 44-505(a)(2). Thus, we find tire regulation to be valid.
Finally, the Fund contends that if a family business decides to incorporate, it should still be. entitled to benefit from the family member exclusion under K.S.A. 44-505(a)(2). Perhaps this is true. But such public policy determinations are to be made, by our elected representatives in the legislature—not by judicial fiat. See Ft. Hays St. Univ. v. University Ch., Am. Ass’n of Univ. Profs, 290 Kan. 446, 460, 228 P.3d 403 (2010) (“[S]uch considerations in the area of statutory provisions are for the legislature to resolve rather than this court.”); see also State v. Prine, 287 Kan. 713, 737, 200 P.3d 1 (2009) (“Of course, the legislature, rather than this court, is the body charged with study, consideration, and adoption of any statutoiy change . . . .”).
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|
Buser, J.:
Mathew Paul Markovich, pro se, appeals the dismissal of his petition for habeas corpus filed pursuant to K.S.A. 60-1501. Among numerous claims of error, Markovich contends the district court’s failure to appoint appellate counsel for him upon the filing of his appeal was a violation of K.S.A. 22-4506(c).
We conclude that under K.S.A. 22-4506(c), an indigent inmate has a statutory right to the appointment of appellate counsel upon the filing of a notice of appeal of the district court’s ruling on a petition for a writ of habeas corpus filed pursuant to K.S.A. 60-1501. Accordingly, we remand to tire district court with directions.
Factual and Procedural Background
Markoyich filed his K.S.A. 60-1501 petition for a writ of habeas corpus while incaracerated at the Ellsworth Correctional Facility. In the petition, he alleged numerous violations of his liberty interests at both the Ellsworth facility and the Larned Correctional Mental Health Facility. These violations primarily related to disciplinary actions taken by correctional authorities against Markov-ich and denial of program credits and good-time credits. Because Markovich had previously filed a federal civil rights case raising similar claims, the Ellsworth County District Court summarily dismissed the K.S.A. 60-1501 petition as duplicative.
Markovich appealed the dismissal to our court. See Markovich v. Green, No. 104,800, unpublished opinion filed Februaiy 25, 2011. Our court noted that Markovich’s federal case was voluntarily dismissed without prejudice and without a decision on the merits. As a result, the Ellsworth County District Court’s dismissal of the K.S.A. 60-1501 petition was reversed and the case was remanded for further proceedings. Slip op. at 5.
Upon remand, the Ellsworth County District Court appointed trial counsel for Markovich. When Markovich was moved to the Hutchison Correctional Facility, however, venue was transferred to the Reno County District Court. Consequently, the Ellsworth County District Court allowed Markovich’s appointed counsel to withdraw.
Markovich asked the Reno County District Court to appoint trial counsel, but the court refused after reviewing the petition and concluding it did not contain substantial issues of law or triable issues of fact justifying the appointment. The Reno County District Court held several hearings on Markovich’s K.S.A. 60-1501 petition. At the final hearing on September 27, 2011, the court dismissed the petition.
On October 4, 2011, Markovich filed a timely notice of appeal of the dismissal and a request for appointment of appellate counsel with the Reno County District Court. In support of his request, Markovich filed a statement of his inmate account to establish his indigency. The record does not show whether the Reno County District Court ruled on the request for appointed appellate counsel. Next, Markovich filed a motion for appellate counsel with our court, which initially denied the request. Markovich also petitioned our Supreme Court for a writ of mandamus to compel the Reno County District Court to appoint appellate counsel. Our Supreme Court denied the petition as moot.
The Right to Appointed Appellate Counsel in K.S.A. 60-1501 Cases
On appeal, Markovich raises numerous claims of error by the Reno County District Court in dismissing his K.S.A. 60-1501 petition. For purposes of this opinion, however, we will only review Markovich’s claim that the district court erred in failing to appoint appellate counsel for him to prosecute this appeal.
Markovich cites K.S.A. 22-4506(c) in support of his contention that he has a statutory right to appointed counsel in these proceedings despite the district court’s “silent denial” of his request for appellate counsel. The State responds that the district court did not abuse its discretion because Markovich’s petition did not raise substantial questions of law or triable issues of fact. The resolution of this issue depends on interpretation of K.S.A. 22-4506(c). Appellate courts exercise unlimited review over statutory interpretation. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
K.S.A. 22-4506 states in relevant part:
“(a) Whenever any person who is in custody under a sentence of imprisonment upon conviction of a felony files a petition for writ of habeas corpus or a motion attacking sentence under K.S.A. 60-1507 and files with such petition or motion such person’s affidavit stating that the petition or motion is filed in good faith and that such person is financially unable to pay the costs of such action and to employ counsel therefor, the court shall make a preliminary examination of the petition or motion and the supporting papers.
“(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 as provided by K.S.A. 22-4504 and amendments thereto, the court shall appoint counsel... to assist such person
“(c) If an appeal is taken in such action and if the trial court finds that the petitioner or movant is an indigent person, the trial court shall appoint counsel to conduct the appeal.”
The most fundamental rule of statutoiy construction is that the intent of the legislature governs if that intent can be ascertained. Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607, 214 P.3d 676 (2009). An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. Padron v. Lopez, 289 Kan. 1089, 1097, 220 P.3d 345 (2009).
The language of K.S.A. 22~4506(c) is plain and unambiguous. K.S.A. 60-1501(a) is the statutory vehicle by which persons “detained, confined or restrained of liberty” in this state may prosecute a writ of habeas corpus. K.S.A. 22-4506(c) clearly provides that when an indigent petitioner appeals in such an action “the trial court shall appoint counsel to conduct the appeal.”
The State implies that, similar to subsection (b), the petition must present substantial questions of law or triable issues of fact before the petitioner is entitled to the appointment of appellate counsel under subsection (c). But neither of those preconditions, while required before appointment of trial counsel under subsection (b), is mentioned with regard to appointment of appellate counsel under subsection (c). See K.S.A. 22-4506. When a statute is plain and unambiguous, an appellate court will not read into the statute something not readily found in it. Double M Constr. v. Kansas Corporation Comm'n, 288 Kan. 268, 271-72, 202 P.3d 7 (2009). There is no threshold requirement found in K.S.A. 22-4506(c) that a petition for writ of habeas corpus under K.S.A. 60-1501 must present substantial questions of law or triable issues of fact in order for an indigent petitioner to obtain appointed appellate counsel.
Our reading of K.S.A. 22-4506(b) and (c) is consonant with Kansas caselaw precedent. Our Supreme Court interpreted tire language of K.S.A. 22-4506 in Guillory v. State, 285 Kan. 223, 170 P.3d 403 (2007). In Guillory, an inmate filed a pro se K.S.A. 60-1507 motion which was summarily denied by the district court. Guillory then filed a pro se appeal to our court, which dismissed it for lack of jurisdiction because the notice of appeal was not filed in a timely manner. Our Supreme Court granted a petition for review to consider whether Guillory’s untimely appeal should have been permitted as an exception under State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982). Guillory, 285 Kan. at 224.
In its discussion of the “fundamental fairness principle underlying all three exceptions recognized in Ortiz,” our Supreme Court considered the language of K.S.A. 22-4506. Guillory, 285 Kan. at 228.With reference to subsection (b) the court observed that “[t]here is no statutory right to counsel at the district court level stage for indigent K.S.A. 60-1507 movants until they meet the threshold showing of substantial legal issues or triable issues of fact.” 285 Kan. at 228. Next, our Supreme Court examined the statutory language in subsection (c) and concluded that “[m]ovants who fail to meet this threshold do have a statutory right to appointment of counsel on appeal but not until after a notice of appeal has been filed.” (Emphasis added.) 285 Kan. at 228-29.
Of course, Guillory dealt with a K.S.A. 60-1507 motion, not a K.S.A. 60-1501 petition. However, because K.S.A. 22-4506(a) clearly applies to both a “petition for writ of habeas corpus or a motion attacking sentence under K.S.A. 60-1507,” we are confident that K.S.A. 22-4506(c) also applies to a petition filed under K.S.A. 60-1501. See Brown v. State, 278 Kan. 481, 483, 101 P.3d 1201 (2004) (“ ‘Our statutes provide that an indigent defendant is entitled to counsel... in habeas corpus proceedings and motions attacking sentence under K.S.A. 60-1507.' ” [quoting State v. Andrews, 228 Kan. 368, 375, 614 P.2d 447 (1980)]). This conclusion is also bolstered by our court’s opinion in Holt v. Saiya, 28 Kan. App. 2d 356, 17 P.3d 368 (2000), wherein we applied subsection (b) of K.S.A. 22-4506 to a petition for writ of habeas corpus under K.S.A. 60-1501.
Notwithstanding tire district court’s ruling that Markovich’s K.S.A. 60-1501 petition did not present any substantial legal issues or triable issues of fact, we conclude that Markovich had a statutory right to the appointment of appellate counsel under K.S.A. 22-4506(c) upon the filing of his notice of appeal.
Finally, tire Reno County District Court did not make a finding on whether Markovich was indigent. The affidavit and statement of inmate account he submitted to the Reno County District Court, however, did not differ appreciably from his indigency submission that the Ellsworth County District Court ruled was sufficient to establish his right to an appointed trial attorney. Accordingly, we conclude that Markovich has established indigency for purposes of obtaining appointed appellate counsel under K.S.A. 22-4506(c).
The case is remanded to the Reno County District Court for appointment of an attorney to assist Markovich in filing and prosecuting his appeal. The appointment shall be made within 20 days after the filing of this opinion. The clerk of the Reno County District Court shall submit the order of appointment to the Clerk of the Appellate Courts within 10 days after the filing of the order of appointment. After counsel is appointed, the district court should allow counsel 30 days in which to file a notice of appeal and docket the appeal in accordance with the Rules of the Kansas Supreme Court. See Kargus v. State, 284 Kan. 908, 929, 169 P.3d 307 (2007).
Remanded with directions. | [
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Bruns, J.:
Dieondra Sanchez was charged and convicted of driving under the influence (DUI) and driving with a suspended license. In the early morning, Sanchez, who had been drinking, was riding in the passenger seat of her boyfriend’s car. While arguing with her boyfriend, Sanchez grabbed the steering wheel, jerked it to the right, and caused the car to crash into a concrete barrier. She walked away from the accident, but a Highway Patrol trooper found her about a block away. Sanchez consented to the trooper’s request for a blood test, which showed that her blood alcohol concentration was .21. The trooper also discovered that she had a suspended driver’s license. Sanchez appeals her convictions, maintaining that she was not driving or operating the car when she grabbed the steering wheel while sitting in the passenger seat. We disagree and affirm her convictions.
Facts
On May 1, 2009, at about 1 a.m., Trooper Aaron McGuire responded to an accident on 1-135 in Sedgwick County. At the scene of the accident, Trooper McGuire met with Curtis Hines to determine what had happened. Hines said that he and his passenger, who he identified as Sanchez, got into an argument while he was driving. According to Hines, Sanchez grabbed the steering wheel, jerked it to die right, directed the car through crash barrels into a concrete barrier, then got out of the car and walked away. Trooper McGuire performed field sobriety tests on Hines and determined that he was not intoxicated. Hines then voluntarily filled out a statement recounting his version of the events.
Trooper Ryan Barnes arrived at the accident scene to assist Trooper McGuire. Shortly thereafter, Sanchez was located about a block away. She claimed that Hines had cut her, and she requested transport to the hospital. At the hospital, Sanchez alternated from being calm to acting aggressively. She admitted she had been drinking and consented to a blood alcohol test. Test results revealed a blood alcohol concentration of .21, which is over the limit of .08, and she was issued a citation for DUI and driving with a suspended license.
During a bench trial, Hines recanted the version of events that he gave Trooper McGuire at the scene. He testified that he had lied because he was mad at Sanchez. He further testified that neither he nor Sanchez had been drinking the night of the accident. He explained that they got into an argument in the car after he asked Sanchez to return an engagement ring, and when he tried to grab the ring, the car crashed into the concrete barrier.
Sanchez also testified that she had an argument with Hines over the ring and she denied grabbing the steering wheel. Although Sanchez admitted that she had one glass of wine before tire accident, she claimed she drank a bottle of Jack Daniels that she had in her purse as she was walking away from the accident. According to Sanchez, she tossed tire bottle somewhere prior to making contact with Trooper Barnes.
The district court determined the testimony of the troopers regarding the version of events to be more credible than that of Hines or Sanchez. It concluded that Sanchez had grabbed the steering wheel from the passenger seat and, as a result, caused the car to crash. The district court also concluded that at the time she grabbed the steering wheel, Sanchez was under the influence of alcohol. Thus, Sanchez was found guilty of DUI and driving with a suspended license.
Analysis
Issues Presented
There are three issues presented on appeal. First, whether the district court erred in finding that while riding as a passenger, Sanchez had operated or attempted to operate tire car at the time of the accident. Second, whether there was sufficient evidence presented at trial that Sanchez’ level of intoxication rendered her incapable of safely operating or attempting to operate a vehicle. Third, whether the district court erred in convicting Sanchez of driving with a suspended license.
Operating or Attempting to Operate a Motor Vehicle
Interpretation of a statute is a question of law subject to unlimited review. See State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011). Determining the intent of the legislature'is the fundamental rule of statutoiy construction. See State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010). When a statute is unambiguous, the plain and ordinary language of the statute is the best evidence of legislative intent. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
K.S.A. 2008 Supp. 8-1567(a)(3) states that “[n]o person shall operate or attempt to operate any vehicle within this state while . . . under the influence of alcohol to a degree that renders the person incapable of safely driving the vehicle.” The Kansas Supreme Court has previously determined that “operate” as used in K.S.A. 8-1567 is synonymous with the word “drive.” State v. Kendall, 274 Kan. 1003, 1009, 58 P.3d 660 (2002). Naturally, one who “operates” or “drives” a vehicle would be the “operator” or “driver” of that vehicle.
The Kansas Legislature defined “driver” in the Uniform Act Regulating Traffic as “every person who drives oris in actual physical control of a vehicle.” (Emphasis added.) K.S.A. 8-1416. Because K.S.A. 2008 Supp. 8-1567 is part of the Uniform Act Regulating Traffic, this definition is controlling in this case. See Kendall, 274 Kan. at 1009. So we must decide whether Sanchez was “in actual physical control” of the vehicle—as its operator or driver—when she grabbed tire steering wheel from the passenger seat and caused tire car to crash into a concrete barrier.
The plain meaning of “control” is “to exercise authoritative or dominating influence over; direct.” (Emphasis added.) The American Heritage Dictionary 400 (4th ed. 2006). Here, tire district court concluded based on the evidence presented at trial that Sanchez physically grabbed the steering wheel and caused the car to hit the concrete barrier. Assuming there was sufficient evidence presented to support the district court’s conclusion, we find that Sanchez was in actual physical control of tire vehicle—as its operator or driver—at the time of tire accident.
Currently, no Kansas case has determined the scope of the phrase “actual physical control of a vehicle” in the context of a passenger. But numerous jurisdictions across the United States have held that a passenger can exert actual physical control over a vehicle by grabbing the steering wheel or by doing other things that cause the vehicle to move. See State v. Rivera, 207 Ariz. 69, 74, 83 P.3d 69 (2004) (“[W]e conclude that, a passenger who grabs the steering wheel of a moving car and alters the car’s movement has assumed actual physical control for purposes of the DUI statutes.”); In re F.H., 192 Cal. App. 4th 1465, 1472, 122 Cal. Rptr. 3d 43 (2011) (“The defendant. . . grabbed the wheel and caused tire vehicle to change direction and crash. By that act she .. . made herself the driver as she exercised actual physical control over the vehicle.”); People v. Yamat, 475 Mich. 49, 57-58, 714 N.W.2d 335 (2006) (“[D]efendant’s act of grabbing the steering wheel and thereby causing the car to veer off the road clearly constitutes 'actual physical control of a motor vehicle/ ”); People v. Crombleholme, 8 A.D.3d 1068, 1070, 778 N.Y.S.2d 256 (2004) (“Defendant's action in grabbing the steering wheel [as passenger] and controlling tire direction of the vehicle fall within the definition of operation of a motor vehicle.”); City of Valley City v. Berg, 394 N.W.2d 690, 691 (N.D. 1986) (holding passenger exercised “actual physical control” by starting the vehicle, after which it lurched forward and struck another vehicle); State v. Wallace, 166 Ohio App. 3d 845, 849, 853 N.E.2d 704 (2006) (“Wallace’s conduct [as passenger] caused movement of the vehicle and the driver s loss of control when she grabbed the steering wheel and caused the vehicle to crash.”); Moe v. MVD, 133 Or. App. 75, .79, 889 P.2d 1334 (1995) (holding passenger was a “driver” by turning on the ignition and inadvertently putting the car into gear, causing it to move); Com., Dept. of Transp. v. Hoover, 161 Pa. Commn. 517, 522, 637 A.2d 721 (1994) (“When a passenger in a vehicle chooses to engage in such foolish conduct as grabbing the steering wheel . . . that person is assuming actual physical control.”); Dugger v. Com., 40 Va. App. 586, 594, 580 S.E.2d 477 (2003) (“By forcibly taking the steering over from the driver, appellant manipulated perhaps the most fundamental feature of a moving vehicle—the direction in which it would travel. That deliberate act placed him in actual physical control of. the vehicle.”); In re Arambul, 37 Wash. App. 805, 808, 683 P.2d 1123 (1984) (“[M]omentary grabbing of the steering wheel of a vehicle [by the passenger] comes within the ordinary meaning of the term ‘actual physical control/ ”).
As the Kansas Supreme Court has recognized, because K.S.A. 2008 Supp. 8-1567 prohibits even the attempt to drive or operate a motor vehicle under thpinfluenceof alcohol,; a violation can occur when an individual does not actually cause the vehicle to move. See Kendall, 274 Kan. at 1009-10; State v. Ahrens, 296 Kan. 151, Syl. ¶ 4, 290 P.3d 629 (2012); State v. Suter, 296 Kan. 137, Syl. ¶¶ 10-12, 290 P.3d 620 (2012). Here, the district court found that Sanchez, riding as a passenger, not only attempted to grab the steering wheel but actually did so, causing the car to crash. Thus, considering the plain language of K.S.A. 8-1416 and K.S.A. 2008 Supp. 8-1567(a)(3), as well as the authority from other jurisdictions, we conclude that a passenger becomes the driver or operator when he or she grabs the steering wheel and alters the vehicle’s movement.
Sufficiency of Evidence of Driving Under the Influence
When the sufficiency of tire evidence is challenged, this court reviews the evidence in the light most favorable to the prosecution to determine if a rational factfinder could have found the defendant guilty beyond a reasonable doubt. See State v. Frye, 294 Kan. 364, 374-75, 277 P.3d 1091 (2012). In conducting this review, we do not reweigh the evidence or the credibility of the witnesses. See State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011).
A review of the record reveals that there was sufficient evidence presented at trial from which a reasonable factfinder could conclude that Sanchez’ alcohol consumption rendered her “incapable of safely driving [the] vehicle” in violation of K.S.A. 2008 Supp. 8-1567(a)(3). Importantly, circumstantial evidence can support even the gravest offense. See State v. Ward, 292 Kan. 541, 581, 256 P.3d 801 (2011).
Here, Hines filled out a voluntary statement immediately following the accident in which he reported that Sanchez grabbed the steering wheel and caused the accident. He further reported that Sanchez walked away from the scene of the accident, and she was found approximately one block away. Because she complained of an injury to her arm, Sanchez was taken to a hospital. At the hospital, Sanchez admitted to Trooper Barnes that she had been drinking at a club prior to the accident.
The results of Sanchez’ consensual blood test showed an alcohol concentration of .21, which was over the legal limit of .08. Moreover, Trooper Barnes testified that her breath smelled like alcohol and that she was combative in a way that was consistent with intoxication. Given that all this occurred shortly after the accident, we find that there was sufficient evidence, when viewed in the light most favorable to the State, for the district judge to conclude that Sanchez had grabbed the steering wheel of the car and caused the accident while under the influence of alcohol in violation of K.S.A. 2008 Supp. 8-1567(a)(3).
Although Hines testified at trial about a version of events that differed from his account at the scene of the accident, we cannot reweigh the evidence or determine the credibility of witnesses. Hall, 292 Kan. at 859. Clearly, the district court did not believe this new version of events to be credible.
Sufficiency of Evidence of Driving with Suspended License
Sanchez raises an identical legal challenge to her conviction for driving with a suspended license. She maintains that from the passenger seat, she was not “driving” the vehicle when she grabbed the wheel and crashed the car into the wall barrier. As before, we disagree.
Again, a statute’s plain meaning controls when its language is unambiguous. Arnett, 290 Kan. at 47. It is unlawful for any person to drive while his or her license is suspended. K.S.A. 2008 Supp. 8-262(a)(l). And K.S.A. 2008 Supp. 8-234a(b) malees clear that the definition of “driver” set forth in K.S.A. 8-1416 is controlling—a driver is one “who drives or is in actual physical control of a vehicle.” Because Sanchez was in actual physical control of the car when she directed it into the wall barrier, she was the “driver” of the vehicle; and she was driving it with a suspended license in violation of K.S.A. 2008 Supp. 8-262(a)(l).
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Leben, J.:
More tiran 4 years after Osage City had authorized contracts to participate in a federal rails-to-trails project, Bisses-samath Ramcharan-Maharajh submitted petitions seeking to put the project before the voters for approval—or disapproval—in a referendum. But referendums are available in Kansas only when specifically authorized by statute, and no statute authorized the referendum Ramcharan sought. The district court therefore properly dismissed Ramcharan’s lawsuit, which sought to force county officials to put the referendum on the ballot.
Factual Background ,
In 2004, the Osage City Council passed a resolution authorizing tine mayor to apply to the Kansas Department of Transportation for funds to participate in a federal rails-to-trails project, which converts unused railroad tracks into recreational trails. This particular project would convert some unused tracks in Osage City into pedestrian and bicycle trails. In January 2006, the city council passed resolutions that authorized the mayor to enter into a lease and a contract for design services, and the council passed another resolution that authorized the city manager to enter into a contract with the Kansas Department of Transportation that assigned responsibilities for completing the project.
More than 4 years later, in March 2010, Bissessamath Ram-charan-Maharajh attended an Osage City Council meeting and expressed concern about the rails-to-trails project. The next month, Ramcharan presented the county clerk with a petition calling for a public vote on the four resolutions, which had passed in 2004 and 2006. The petition proposed a ballot question of whether the city’s resolutions to construct the trails at a cost of more than $1 million should be effective.
In August 2010, the county clerk notified Ramcharan that the clerk was declining to review the signatures because Ramcharan’s petition didn’t present a question that could be the subject of an election. The same day, the county counselor notified Ramcharan that there was no legal basis in his petition that would compel an election.
Ramcharan filed suit in November 2010, seeking a writ of mandamus that would compel the clerk to accept, verify, and certify the names on .the petition. Ramcharan named the county clerk, the county counselor, and three county commissioners as respondents in his petition, _
The district court granted the county’s motion for judgment on the pleadings and dismissed Ramchararis petition. Ramcharan has appealed that dismissal to this court.
Analysis
Ramcharan raises a number of arguments on appeal, but we find three broad propositions decisive. First, referendums are only authorized in Kansas where provided for by statute, and no statute authorizes the referendum Ramcharan seeks. Second, the city has no authority to agree to a referendum that’s not authorized by Kansas statute, so even if—as Ramcharan alleges—the city agreed to the referendum, the agreement wouldn’t be valid. Third, the First Amendment doesn’t guarantee a right to referendum, so the inability to put these city actions to public vote in a referendum doesn’t violate Ramchararis constitutional rights. We will discuss the specific arguments Ramcharan makes on appeal in the context of these rales.
Because Ramchararis suit was dismissed on a motion for judgment on the pleadings, we review the matter independently, without any required deference to the district court. Wagner v. State, 46 Kan. App. 2d 858, 860, 265 P.3d 577 (2011). We must accept as true the factual allegations made in Ramchararis petition; we then decide whether he has stated a potentially valid claim based on those facts. Purvis v. Williams, 276 Kan. 182, 186-87, 73 P.3d 740 (2003).
Ramcharan seeks mandamus as a remedy; mandamus is an order that some public official or lower court perform a specified legal duty. See K.S.A. 60-801. Someone seeking an order (or writ) of mandamus must show that the respondent has a clear legal duty to take the action at issue. Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, 620, 244 P.3d 642 (2010). Whether to issue a mandamus order depends on statutory interpretation regarding the duties of the officials involved; we also review those matters independently, without any required deference to the district court. 291 Kan. at 620.
Before discussing the issues, we also place in context what Ram-charan asks the court to order the public officials to do, i.e., hold a referendum. A referendum is a public vote—secured by a petition signed by a certain number of voters—approving or rejecting an action already taken (or, in some states, merely proposed) by a governmental body.
There is another process for voter input in government—the initiative process—that’s sometimes confused with referendums. The difference is that a referendum is a public vote taken in response to a measure initiated by the government, while in the initiative process citizens develop the proposal that is then placed on the ballot for public approval. See generally Eskridge, Frickey & Garrett, Cases and Materials on Legislation: Statutes and the Creation of Public Policy, pp. 523-24 (4th ed. 2007); Ramcharan has not suggested that his proposal be considered as an initiative.
I. No Statute Authorizes the Referendum Ramcharan Seeks.
Local governments in Kansas are legal creations of the State of Kansas, and local governments have only the authority granted to them by the state or by the people (through the state constitution). See Heim, Home Rule Power for Cities and Counties in Kansas, 66 J.K.B.A. 26, 27-28 (Jan. 1997); Clark, State Control of Local Government in Kansas, 20 U. Kan. L. Rev. 631, 654-55, 658-59 (1972). The Kansas Constitution gives broad home-rule powers to cities, but the home-rule provision in the Kansas- Constitution provides for “referendums only in such cases as prescribed by the legislature." Kan. Const, art. 12, § 5(b). So if there is to be any authority for a city to hold a referendum, that authority must come from the legislature: aside from home-rule authority, cities have only such authority as has been granted by the state, and the home-rule authority given t;o Kansas cities specifically limits referendums to cases “prescribed by the legislature.”
Initiatives in Kansas are authorized by one broad statute, K.S.A. 12-3013. But referendums, brought about by protest petitions, are authorized by about 40 different statutes concerning specific subjects. Protest petitions are most commonly used to force a referendum when a city government authorizes a tax or a bond issue. See K.S.A. 12-137; Heim, Kansas Local Government Law §§ 5.70, 5.90-5.91(4th ed. 2009). Ramcharan points to no subject-specific statute authorizing a referendum here.
Instead, Ramcharan cites to K.S.A. 2011 Supp. 25-3601, a procedural statute that applies only when some other statute provides authority for a referendum. K.S.A. 2011 Supp. 25-3601 provides a format for submitting ballot questions and a process for getting official approval of questions before getting citizen signatures on petitions seeking a public vote. But the statute applies only when “a petition is required or authorized as part of the procedure applicable” to the governmental entity involved. Some statute other than K.S.A. 2011 Supp. 25-3601 must provide the authority for a referendum; K.S.A. 2011 Supp. 25-3601 is purely procedural.
One of the provisions of K.S.A. 2011 Supp. 25-3601 provides that the form of the proposed ballot question be submitted for approval to the county counselor or to the county or district attorney, who has 5 calendar days to respond. K.S.A. 2011 Supp. 25-3601(a). If the response is not made within that time limit, then “the form of the question shall be deemed in compliance” with legal requirements. (Emphasis added.) K.S.A. 2011 Supp. 25-3601(a). Ramcharan suggests that this part of K.S.A. 2011 Supp. 25-3601 provides authorization for a referendum since the county counselor failed to respond to Ramcharan’s proposed ballot question within 5 days. But even if the county counselor failed to respond, that only confers approval of the form of the question, not the right to place it before the people in a referendum. K.S.A. 2011 Supp. 25-3601 simply doesn’t provide substantive authority for placing a referendum before the voters.
II. A City Cant Agree to Have a Referendum That’s Not Authorized by Statute.
Apart from any statutory authority, Ramcharan contends that Osage City entered into a valid contract with him under which a referendum must be held. He says this agreement was reached during a city council meeting in 2010, and he provides this description of the terms agreed upon:
“If Ramcharan could show the City Council that a substantial number of the electorate would like to have the proposed continuation of the expenditure of tax dollars on the Rails to Trails project placed on a ballot, then the city of Osage City will have an election on whether the resolutions authorizing the expenditure would continue to be effective or not.”
The minutes of the city council’s March 9, 2010 meeting noted that Ramcharan spoke to the council and that the mayor told Ram-charan “that there would be approximately 60 days before any further action is taken and that would be substantial time for Mr. Ramcharan to get his petition in order prior to any action.” The district court found that there was no evidence of any contract between the city and Ramcharan, and our record certainly doesn’t provide evidence of one.
But even if the city had agreed to a referendum if Ramcharan got enough signatures, cities are special entities that may not enter into contracts that contravene statutes or public policy. See Anderson Construction Co. v. City of Topeka, 228 Kan. 73, 79-80, 612 P.2d 595 (1980). As we’ve noted previously, the Kansas Constitution provides for referendums “only in such cases as prescribed by the legislature.” (Emphasis added.) Kan. Const, art. 12, § 5(b). The Kansas Constitution is the preeminent declaration of Kansas public policy, so we are once again left with the proposition that unless a statute authorizes this referendum, it can’t be had. The city has no power to provide for a referendum that’s not authorized by statute since the city’s home-rule authority provides for referendums “only” as legislatively authorized. A city’s agreement to put a referendum on the ballot would contravene public policy and thus be invalid unless there’s statutoiy authority for the referendum. Since no statute authorizes the referendum Ramcharan proposed, any agreement by the city to put it on the ballot would be invalid.
III. There Is No First Amendment Right to Referendums.
Even if no statute authorizes his proposed referendum, Ram-charan argues that statutory authority isn’t needed because his right “to petition the Government for a redress of grievances” is guaranteed by the First Amendment. He’s correct, of course, that he has a right to petition the government, seeking government action in response to his complaints or suggestions. But tire First Amendment does not require that the government respond to a citizen’s petition. As the United States Supreme Court has said, “Nothing in the First Amendment or in this Court’s case law interpreting it suggests that the rights to speak, association, and petition require government policymakers to listen or respond to individuals’ communications on public issues.” Minnesota Bd. for Community Colleges v. Knight, 465 U.S. 271, 285, 104 S. Ct. 1058, 79 L. Ed. 2d 299 (1984); see 2 Tribe, American Constitutional Law § 13-17, p. 1095 (2d ed. 1988).
Nor does the United States Constitution require that states provide for initiative and referendum rights. See Kendall v. Balcerzak, 650 F.3d 515, 523 (4th Cir. 2011); Molinari v. Bloomberg, 564 F.3d 587, 597 (2d Cir. 2009); American Constitutional Law Foundation v. Meyer, 120 F.3d 1092, 1100 (10th Cir. 1997). Rather, the right to initiative and referendum in a city or state derives from a state constitution or statute, not from federal law. See Loonan v. Woodley, 882 P.2d 1380, 1383 n.3 (Colo. 1994); In re Initiative Petition No. 349, 838 P.2d 1, 9 (Okla. 1992).
Where a state establishes initiative and referendum rights, the state has the power to provide reasonable restrictions on access to the ballot. Meyer, 120 F.3d at 1097. The state’s important interest in regulating ballot access generally is sufficient by itself to justify reasonable, nondiscriminatoiy ballot-access restrictions. Timmons v. Twin Cities Area New Party, 520 U.S. 351, 364-65, 117 S. Ct. 1364, 137 L. Ed. 2d 589 (1997). Ramcharan has not shown that there’s anything unreasonable in providing for protest petitions in some situations but not in others, including his attempt to seek a referendum over Osage City’s decisions to participate in the federal rails-to-trails program.
In addition to his broad argument that the First Amendment petition right guarantees his right to the referendum he seeks, Ramcharan also argues that the varying requirements under different statutes for different numbers of signatures to get something on the ballot constitutes an undue burden upon him. Ramcharan is correct that more signatures are required to get some things on the Kansas ballot than others. But we return to our conclusion that no statute authorizing a referendum applies to his case. We see no valid constitutional objection in Ramcharan’s argument that there are differing petition requirements in statutes that have no application here.
Finally, on the constitutional front, Ramcharan also argues that it violated his due-process rights to dismiss his case without an evidentiaiy hearing. In support of his argument, he cites a habeas corpus case that applies a familiar rule in those cases that an evi-dentiary hearing is ordinarily required if tire person being held in custody alleges facts that, if true, would warrant relief. But Ram-charan seeks a writ of mandamus requiring a government official to act, not a writ of habeas corpus ordering the release or change in treatment of a prisoner. Due process doesn’t require an eviden-tiary hearing when the issue raised is purely a matter of law and we accept as true the allegations Ramcharan made in his petition. See Chester Water Authority v. Public Util., 581 Pa. 640, 653-54, 868 A.2d 384 (2005).
Conclusion
No statute authorized the referendum Ramcharan sought; no constitutional provision requires Kansas to provide for referendums where not authorized by statute; and a Kansas city may not agree to a referendum that the legislature hasn’t provided for. The district court properly dismissed Ramcharan’s petition.
The district court’s judgment is affirmed. | [
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Leben, J.;
After her employer denied disability benefits to her, Jana Hague sued the company, Hallmark Cards, Inc., for breach of contract and for unpaid wages. But she was subject to an agreement with Hallmark that required arbitration of any claims “under the law” and “arising out of the employee’s employment.”
Hague contends that there are exclusions from the arbitration requirement that can be found in Hallmark documents, including that claims objecting to Hallmark policies aren’t subject to arbitration. But what Hague has filed in court is a lawsuit, not an objection to Hallmark policies, and her agreement with Hallmark requires that legal claims be arbitrated. We therefore reverse the district court’s ruling that her claims were not subject to arbitration, and we return the case to the district court with directions to stay further proceedings in the lawsuit and to compel arbitration.
Factual Background
Hague began suffering health problems in 2008, and she took a leave of absence from her employment at Hallmark Cards, Inc. Hallmark provides short-term disability benefits to its employees under a company-funded program, and Hallmark initially approved Hague’s application for short-term disability benefits. But after additional review, Hallmark denied further benefits. Hallmark’s decision was supported by Union Security Insurance Company, which Hallmark hired to review short-term disability benefit requests. Hague didn’t return to work, and Hallmark fired her.
We have not detailed Hague’s heahh problems or the reasons that Hallmark gave for denying her short-term disability benefits. That’s because the issues of this lawsuit relate only to the proper forum within which to determine the merits of Hague’s legal claims—before an arbitrator or in court—and not to the merits themselves.
Hague filed suit against Hallmark. She asked that the court determine that she should have received further short-term disability benefits and that the court award her back benefits plus interest, penalties, and attorney fees. She characterized her claims as “claims filed to recover unpaid employee benefits,” a claim for “breach of contract,” and a claim for “violations of the Kansas Wage Payment Act.”
Hallmark moved to dismiss or stay the lawsuit, putting it on hold while the parties arbitrated their dispute. Hallmark claimed that Hague’s claims were subject to mandatory arbitration under Hallmark’s dispute-resolution program.
Hague argued that the dispute-resolution program didn’t require her to arbitrate her claims, and the district court agreed. The district court cited a provision in the short-term disability policy that it quoted as saying: “STD [short-term disability] claims are not a covered claim under the DRP [dispute-resolution program].” The district court held that “ ‘any conflicting language’ ” in the dispute-resolution policy must be “construed against Hallmark,” apparently because Hallmark chose the language.
Hallmark has appealed to this court. We have jurisdiction to hear the appeal under 9 U.S.C. § 16(a)(1)(A), (B) (2006).
Analysis
We must determine whether the claims Hague has made in her lawsuit are subject to arbitration under Hallmark’s dispute-resolution program. Two overriding considerations guide us in this process. First, the Federal Arbitration Act, 9 U.S.C. § 1 etseq. (2006), applies here, and under that statute “[a]ll doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.” Packard v. Credit Solutions of America, Inc., 42 Kan. App. 2d 382, Syl. ¶ 4, 213 P.3d 437 (2009). Second, we must independently review the provisions that call for arbitration to determine whether they apply. 42 Kan. App. 2d at 384. When we do, we find that Hallmark’s dispute-resolution program document clearly requires that Hague’s claims be arbitrated.
We Apply the Federal Arbitration Act, Which Strongly Favors Arbitration.
The Federal Arbitration Act applies when a case involves a written agreement and interstate commerce. See 9 U.S.C. § 2 (2006). The United States Supreme Court has held that the Act was intended to have the broadest possible reach under the Commerce Clause. See Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 56-57, 123 S. Ct. 2037, 156 L. Ed. 2d 46 (2003).
Hague argues that some concepts of Kansas law should be applied here, specifically canons of contract interpretation like construing ambiguities against Hallmark as the drafter of the documents. But Hague makes no argument that the Federal Arbitration Act is inapplicable. The Act applies generally to employment agreements, Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 118-19, 121 S. Ct. 1302, 149 L. Ed. 2d 234 (2001), and other courts have applied the Act when considering whether Hallmark’s dispute-res olution program required arbitration of an employee’s claim against Hallmark. E.g., Rangel v. Hallmark Cards, Inc., No. 10-4003-SAC, 2010 WL 781722, at *3-4 (D. Kan. 2010) (unpublished opinion); Kenney v. Hallmark Cards, Inc., No. 08-CV-2134-CM, 2009 WL 102682, at *2 (D. Kan. 2009) (unpublished opinion); Morrow v. Hallmark Cards, Inc., 273 S.W.3d 15, 20 (Mo. App. 2008). We apply it here.
The Federal Arbitration Act establishes a strong federal policy in favor of arbitrating disputes. KPMG LLP v. Cocchi, 565 U.S. _, 132 S. Ct. 23, 25, 181 L. Ed. 2d 323 (2011). Thus, as our court noted in Packard, all doubts about the scope of what issues are subject to arbitration “should be resolved in favor of arbitration.” 42 Kan. App. 2d 382, Syl. ¶ 4. As the United States Supreme Court has directed, ambiguities as to the scope of the arbitration clause itself are resolved in favor of arbitration. Volt Info. Sciences v. Leland Stanford Jr. U., 489 U.S. 468, 475-76, 109 S. Ct. 1248, 103 L. Ed. 2d 488 (1989). Accordingly, when interpreting provisions that determine the scope of the arbitration agreement, normal state-law canons of contract construction—such as construing ambiguous provisions against the party that drafted it—generally are trumped by the Act’s policy in favor of arbitration. Dialysis Access Center, LLC v. RMS Lifeline, Inc., 638 F.3d 367, 382 (1st Cir. 2011); see Volt Info. Sciences, 489 U.S. at 475-76; Moses H. Cone Hospital v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983); Gulf Ins. Co. v. Neel-Schaffer, Inc., 904 So. 2d 1036, 1049-50 (Miss. 2004).
For the presumption in favor of arbitration to apply, of course, there must first be a valid agreement between the parties. Granite Rock v. Intern. Broth. of Teamsters, 561 U.S. 287, 299-00, 130 S. Ct. 2847, 177 L. Ed. 2d 567 (2010). If so, and if there’s a provision in the parties’ agreement that seems to require arbitration, then arbitration should be ordered “ ‘unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.’ [Citations omitted.]” AT&T Technologies v. Communications Workers, 475 U.S. 643, 650, 106 S. Ct. 1415, 89 L. Ed. 2d 648 (1986).
Here, Hague doesn’t dispute that there’s a valid agreement between herself and Hallmark: she sets out the sole issue on appeal as whether her claim is a “covered claim,” and thus subject to arbitration, under Hallmark’s dispute-resolution program. (Although not contested here, the Kansas federal court has found that Hallmark’s current dispute-resolution program creates a valid, contractual arbitration agreement between Hallmark and its employees because both employer and employee are required to arbitrate. Rangel, 2010 WL 781722, at *5; Kenney, 2009 WL 102682, at *2-3.) With the general principles of the Federal Arbitration Act in mind, we turn next to consider whether Hallmark’s dispute-resolution program requires the arbitration of Hague’s claims.
Hallmark’s Dispute-Resolution Program Requires Arbitration of Hague’s Claims.
We start with the four-page agreement that sets out the terms of Hallmark’s dispute-resolution program. It describes the program as “a structured dispute resolution process that consists” of four sequential parts, with binding arbitration as the final step:
• “Level 1—Open Door Process,” where “an employee and the management team attempt to resolve the employee’s dispute.”
• “Level 2—Final Internal Review,” where “the Company’s designees will review the employee’s written complaint and other relevant documentation and issue a written decision.”
• “Level 3—Nonbinding Mediation,” where “an independent mediator helps the employee and the Company open lines of communication in an attempt to facilitate resolution.”
• “Level 4—Binding Arbitration,” where “an independent arbitrator provides the employee and the Company with a ruling on the merits of the employee’s covered claims.”
That describes the process but doesn’t tell us what’s covered. Separate sections describe “Covered Claims” and “Excluded Claims.” Only “covered claims” can reach Level 4, binding arbitration, and these include claims arising out of the employee’s employment that give rise to a legal claim for breach of contract, for unpaid wages, or for other compensation:
“Covered Claims
“While employees may submit any timely-filed employment-related dispute at Levels 1 and 2, only covered claims will be accepted and processed at Level 3 and 4. Covered claims are those claims arising out of the employee’s employment that the Company may have against the employee or that the employee may have against the Company and/or individual employees acting within tire scope of their employment regarding alleged unlawful or illegal conduct on the part of the Company and/or individual employees acting within the scope of their employment that give rise to a claim under the law including, but not limited to, the following:
• “Claims for breach of contract or covenant (express or implied).
• “Claims for unpaid wages or other compensation.” (Emphasis added.)
We must also check to see whether Hague’s claims have been excluded from the arbitration process. Excluded claims include ones for benefit under ERISA benefit plans and ones that seek to establish, modify, or object to a Hallmark company policy:
“Excluded Claims
“The following claims shall be excluded from the DRP [dispute-resolution program]:
• “Claims for benefits under a Company benefit plan covered by ERISA ....
• “Claims that seek to establish, modify, or object to the Company’s policies (including, but not limited to, compensation, vacation and short-term disability) except claims that allege discriminatory application or impact of such policies.”
Hague does not contend that the short-term disability benefits are covered by ERISA, but she does contend that her claims are excluded because she objected to some of the procedures under which Hallmark administered its short-term disability benefits.
If we consider only the terms of the dispute-resolution plan itself, Hague’s claims are a “covered claim” subject to the full dispute-resolution process, including Level 4 arbitration on the merits of the claim. Hague contends she was contractually entitled to the short-term disability benefits, and she sued Hallmark for breach of contract to get them. Claims “under the law” arising out of a person’s Hallmark employment are covered, and breach-of-contract claims are explicitly included, as are claims for unpaid wages or other compensation. Hague also explicitly set out a claim in her petition under the Kansas Wage Payment Act for unpaid wages.
Hague contends that her clams are nonetheless excluded as ones that “seek to establish, modify, or object” to Hallmark policies. She emphasizes that she objected to Hallmark’s use of an insurance company to help review the claims because she contends it had a conflict of interest.
But Hague’s lawsuit cannot be premised on any attempt by her to “establish” or “modify” a Hallmark policy. Only Hallmark can create an employee benefit that the employee might then have some entitlement to; an employee can’t establish a benefit program without the employer’s agreement. Nor can an employee “modify” an existing employee benefit so as to expand the employee’s rights without the company’s agreement. If an employee can’t establish or modify a company policy—and then claim legal entitlement to the newly established or modified benefit—the mere objection to a company policy doesn’t create any legal entitlement for the employee, either.
Hallmark’s dispute-resolution program reasonably excludes employee attempts to establish, modify, or object to Hallmark policies from mandatory arbitration. No company is obligated to give an arbitrator the authority to create or modify policies that would cost the company money or place other burdens upon it without its agreement.
So far, based only on the document that establishes the dispute-resolution program, it appears that Hague’s claims are covered and subject to arbitration. We turn next to the provision within Hallmark’s “Career Rewards” booklet that sets out the terms of its short-term disability benefits at the time of Hague’s employment.
Hallmark’s short-term disability plan provided for continuation of an employee’s pay for up to 6 months. After that, a long-term disability plan provided the potential for another 6 months of payments. The short-term benefits were provided entirely at Hallmark’s expense, and Hallmark’s policy provided that its own “Medical Department” was “solely responsible” for determining whether an employee qualified for short-term benefits. Long-term benefits were provided through a voluntary employees’ beneficiary associ ation under Section 501(c)(9) of the Internal Revenue Code, and the long-term plan was administered by Union Security Insurance Company. But one condition for receipt of long-term benefits was that the employee had to first qualify either for short-term disability benefits or workers-compensation benefits.
Things become a bit confusing because the short-term disability program has its own “appeal process.” We will set it out in full because the district court relied upon one sentence in it (misquoted a bit) for its conclusion that Hague’s lawsuit wasn’t subject to arbitration. The key features are that the appeal provided through the short-term disability program only considers “whether proper procedures were followed” and only includes Level 2, the process for internal review within Hallmark:
“Short-Term Disability Policy
“Case Management Provisions and Appeal Process
“Eligibility for STD [short-term disability] benefits is case managed. If an absence extends beyond established medical guidelines or if there is no clear medical rationale for work restrictions, the treating physician’s office may be contacted by the Medical Department to determine whether there are extenuating circumstances that would justify a period of incapacity longer than the period determined by tlie Medical Department.
“If a reasonable medical explanation for exceeding established medical guidelines is not provided and the employee remains off of work for three or more days beyond the length of time the Medical Department has determined to be appropriate, the employee may request a third-party review. Provided the employee timely signs and returns a consent form to the Medical Department[,]... trained medical personnel at an outside case management firm will review records that were timely submitted and determine the appropriate period for STD benefits. STD benefits will not be paid during the third-party review until the results of the review are provided to the Medical Department.
“If the employee is not satisfied with the results of the third-party review and/ or the case management process, and the employee wants to pursue a claim, the employee must file a request for a Level 2—Final Internal Review under the Hallmark Dispute Resolution Program (DRP). However, this review will only consider whether proper procedures were followed (it is not a medical review) and the decision will be upheld if it is reasonable. The employee’s claim is not a covered claim under the DBF and therefore the employee’s claim will not be eligible for review at Levels 3 or 4 of the DRP. For more information about the DRP, see the Problem Solving section of this booklet.” (Emphasis added.)
So what did the short-term disability policy add to our understanding? It contains its own appeal process, one that applies only to whether proper procedures were followed. That procedure-only appeal involves only one step—the one described in tire dispute-resolution program as Level 2, in which a designated Hallmark representative will consider the employee’s appeal, review relevant documents, and issue a written decision. In addition, this procedure-only appeal is not a “covered claim” under the dispute-resolution program and the employee doesn’t have the ability to obtain binding arbitration on whether proper procedures were followed.
But nothing in the short-term disability policy’s grant of a procedural appeal purports to amend tire document that established and governs the Hallmark dispute-resolution program. That doc'ument, as we have already noted, provides for the resolution of claims “under the law” arising out of a person’s Hallmark employment, including claims for breach of contract, for unpaid wages, and for other compensation. And those are the claims being pursued by Hague.
We noted previously that the district court quoted the Hallmark short-term disability policy as saying: “STD [short-term disability] claims are not a covered claim under the DRP [dispute-resolution program].” The actual sentence in the short-term disability policy’s section on appeals read: “The employee’s claim is not a covered claim under the DRP and therefore the employee’s claim will not be eligible for review at Levels 3 or 4 of the DRP.” In context, “[t]he employee’s claim” here referred to tire employee’s claim that proper procedures weren’t followed in denying short-term disability benefits; the only “claim” being discussed in the paragraph was the employee’s Level 2 appeal over the procedures that had been used to deny short-term disability benefits.
Hague wants to read “[t]he employee’s claim” to refer to the employee’s substantive legal claim for short-term disability benefits, along with any related relief (like attorney fees, which she sought in her petition) that the employee might later seek in a lawsuit. We can’t do so given the context of the paragraph and the admonition that doubts about the scope of an arbitration provision should be resolved in favor of arbitration.
Hague’s claims are subject to arbitration under her employment agreement, which includes the Hallmark dispute-resolution program. We therefore reverse the district court’s order and remand the case with directions to grant Hallmark’s motion to stay further proceedings in the lawsuit and to compel arbitration. | [
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Green, J.:
Matt Kincaid and Julie Kincaid appeal from a summary judgment granted in favor of David Dess and Sandra Dess involving the Kincaids’ breach of contract, fraud, negligent misrepresentation, civil conspiracy, and rescission claims. The Kincaids purchased a house from Sirva Relocation LLC (Sirva) for approximately $1,040,000. The bases of the' Kincaids’ claims involve the alleged failure of the Desses to disclose the true condition of their home before they sold it to Sirva. Nevertheless, the Desses moved for summary judgment. The Desses sought dismissal of the action on grounds that the Kincaids purchased the house from Sirva so there was no privity between the Desses and the Kincaids. The Desses maintained that the Kincaids’ claims for fraud and negligent misrepresentation, breach of contract, and rescission should fail because of a lack of privity. The Desses further maintained that the Kincaids’ civil conspiracy claim should fail because the Kincaids failed to show a meeting of the minds. The trial court agreed and granted summary judgment in favor of the Desses on all of the Kincaids’ claims.
On appeal, die Kincaids contend that the trial court erred in granting summary judgment on their breach of contract, fraud, and negligent misrepresentation claims. We agree. The Kincaids further contend that the trial court erred in granting summary judgment on their civil conspiracy and rescission claims. We disagree. Accordingly, we reverse and remand for trial on the Kincaids’ breach of contract, fraud, and negligent misrepresentation claims. We affirm the trial court’s grant of summary judgment in favor of the Desses on the Kincaids’ civil conspiracy and rescission claims.
The Desses entered into an option to purchase contract in the spring of 2007 with Sirva which gave Sirva the exclusive right to list the Desses’ house for sale. The Kincaids entered into a real estate contract with Sirva to purchase the Desses’ home.
As part of their contract with Sirva, the Desses completed two separate “Seller’s Disclosure” statements, one was the local form (local disclosure statement) and one was Sirva’s form (Sirva disclosure statement). Sirva then provided these disclosure statements to the Kincaids. The Sirva disclosure statement indicated that the type of exterior material on the home was “unknown.” The Desses also denied any knowledge of mold or mildew or any dampness or leaks in the walls. The Desses further denied that they were aware of any wood rot or any other conditions that might adversely affect the value or desirability of their home.
The Kincaids signed a rider to the sales agreement with Sirva. The rider contained numerous clauses which explained that the disclosure statements were completed by the Desses and that Sirva was not making any representations about the condition of the property. The rider stated the following:
“Buyer must acknowledge receipt of the disclosure forms identified below. Said forms are informational only and represent only the opinions of the individuals or firms which prepared them and SIRVA makes no representation or recommendation concerning said reports. Buyer further acknowledges that the home owner disclosure forms were completed by the owner of the Property previous to SIRVA, that said disclosures fulfill any obligation of SIRVA to disclose conditions of the Property to Buyer and that SIRVA may not complete an independent investigation and/or disclosure for the Property.”
The rider also stated the following:
“It is acknowledged that SIRVA has never occupied the properly and, as such, the Property is being sold in ‘as is’ condition to the maximum extent allowed by law. Neither Seller or any of its agents make any representations concerning the Property, including but not limited to, representations regarding the size of the buildings and improvements, the presence or absence of toxic or hazardous substances, or the presence or absence of any encroachments or unrecorded easements.”
The rider further stated the following:
“SIRVA makes no representations or warranties of any sort whatsoever regarding the Property, its condition, value or surrounds and may not be held liable or responsible for any damages or liability to Buyer or any other person or entity. Buyer is agreeing to fully rely on its right to inspections, tests and surveys granted herein to discover any undesirable or latent conditions regarding this property, and acknowledges that Sirva has made no representations thereon upon which Buyer may rely. The provisions herein shall survive closing and delivery of the deed. The closing of this transaction shall constitute buyer’s full and complete acceptance and release of claims for all conditions and inspection matters herein.”
The Kincaids had an inspection done on the home which informed the Kincaids that the exterior of the property did not consist of an exterior insulation and finish system (EIFS), also known as synthetic stucco. EIFS is a multi-layered exterior finish system that looks similar to traditional stucco but is soft and sounds hallow when tapped. The problem with EIFS is when moisture is present behind the covering it can become trapped behind the layers and can lead to wood rot. The Kincaids testified that the Desses’ realtor assured them that the exterior of the home was not EIFS. The fact that the exterior of the home was not EIFS was particularly important to the Kincaids because they were aware of the problems that can arise with an EIFS exterior if it is not installed properly. The Kincaids testified that they would not have purchased the home if they knew that the exterior was EIFS. As a result of the inspection, the Kincaids requested that some repairs be made before they would close on the house. The Desses paid for and com-. pleted the requested repairs. The Kincaids closed on the house on August 9, 2007.
In September 2007, 1 month after closing on the house, the Kincaids discovered numerous defects that had not been disclosed by the Desses. The Kincaids discovered (1) that the exterior of the home was EIFS; (2) that the property had prior water damage; (3) that some of the exterior and interior walls had dampness problems; (4) that many windows were defective and rotten; and (5) that the home was contaminated with mold. As a result of those defects, the Kincaids were not allowed to live in the home for a year while tire defects were being repaired.
In April 2009, the Kincaids sued foe Desses, Reece & Nichols Realtors, Inc., and Tricia Wolfe, foe Desses’ realtor, for breach of contract, fraud and negligent misrepresentation, and civil conspiracy. The Kincaids did not include Sirva in the lawsuit. The Kincaids sought damages of $350,000 to pay for the cost;to repair the property, tire diminution in value to foe property, and foe cost of additional living expenses during the repairs.
The Desses moved for summary judgment on all counts. On November 17, 2010, the trial court issued a memorandum opinion granting summary judgment in favor of the Desses on the claims of breach of contract and fraud and negligent misrepresentation. The trial court held that there was a lack of privity between the Kincaids and the Desses, and therefore, the Kincaids’ breach of contract claim failed. The trial court further held that the Kincaids failed to come forward with any evidence that they reasonably relied on any statements made by the Desses. The trial court allowed the claims for civil conspiracy and rescission to proceed to discovery.
On January 10, 2011, the Desses filed a second motion for summary judgment. The Desses filed an amended motion for summary judgment on October 17, 2011, which asked the court to dismiss the remaining claims. After a hearing, the trial court granted summary judgment in favor of the Desses on the remaining claims. Only the Dess defendants are involved in this appeal.
Standard of Review
When the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, the same rules apply; summary judgment must be denied if reasonable minds could differ as to the conclusions drawn from the evidence. O’Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 330, 277 P.3d 1062 (2012).
Additionally, for this court to determine whether the trial court erred, it must interpret the sales contract. The legal effect of a written instrument is a question of law. It may be construed and its legal effect determined by the appellate court regardless of the construction made by the trial court. Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011). “The primary rule for interpreting written contracts is to ascertain the parties’ intent. If tire terms of the contract are clear, the intent of the parties is to be determined from the contract language without applying rules of construction. [Citation omitted.]” Carrothers Constr. Co. v. City of South Hutchinson, 288 Kan. 743, 751, 207 P.3d 231 (2009).
Did the trial court err in granting summary judgment on the Kin-caids’ breach of contract claim?
In granting the Desses’ motion for summary judgment on the breach of contract claim, the trial court ruled that privity is essential to maintain an action on a contract and that such privity did not exist between the Kincaids and the Desses in the residential real estate contract.
On appeal, the Kincaids make numerous arguments that privity did exist between them and the Desses. For example, the Kincaids argued: (1) that the facts of the case alone established privity; (2) that as a matter of law the signed disclosure statements established privity; (3) that the disclosure statements were incorporated by reference to the contract and therefore established privity; and (4) that privity was established because they were intended third-party beneficiaries. We will first address the third-party beneficiaiy argument.
Third-Tarty Beneficiary
The Kincaids argue that the trial court erred in granting the Desses’ motion for summary judgment on their breach of contract claim because they are intended third-party beneficiaries of the contract of sale between Sirva and the Desses under the identifiable class -called prospective buyers. The Desses respond that the Kincaids are merely incidental third-party beneficiaries and "that they do not have the necessary privity of contract.
In the present case, the trial court granted the Desses’ motion for summary judgment because it ruled the Kincaids did not have privity of contract, and therefore, no standing to sue. Standing is a requirement for the court to have jurisdiction to hear the case, so the existence of standing is a question of law over which an appellate court’s scope of review is unlimited. Board of Sumner County Comm’rs v. Bremby, 286 Kan. 745, 751, 189 P.3d 494 (2008). Moreover, a lack of standing was based on tire residential real estate contract, and the interpretation and legal effect of written instruments are matters of law over which appellate courts exercise unlimited review. Miller v. Westport Ins. Corp., 288 Kan. 27, 32, 200 P.3d 419 (2009). Regardless of a trial court’s construction of a written contract, an appellate court may construe it and determine its legal effect. City of Arkansas City v. Bruton, 284 Kan. 815, 828-29, 166 P.3d 992 (2007).
Here, privity turns on whether Sirva and the Desses intended to create an identifiable class of third-party beneficiaries, called prospective buyers, whom Sirva and the Desses intended to benefit by the contract of sale and to which the Kincaids belong.
To determine whether a particular person is an intended beneficiary of a contract, the court applies the general rules for construction of contracts. Gray v. Manhattan Med. Center, Inc., 28 Kan. App. 2d 572, 580-81, 18 P.3d 291 (2001). When inteipreting written contracts, the contract should not be interpreted by isolating one particular sentence or provision, but by construing and considering the entire contract. If the terms of the contract are clear, the parties’ intent is determined from the contract itself without applying rules of construction. A contract is ambiguous when the words in the contract expressing the intent of the parties may be understood in two or more ways. Fasse v. Lower Heating & Air Conditioning, Inc., 241 Kan. 387, 388-91, 736 P.2d 930 (1987).
Third-party beneficiaries of a contract are divided into intended beneficiaries and incidental beneficiaries, and only intended beneficiaries have standing to sue for damages resulting from the breach of a contract. See State ex rel. Stovall v. Reliance Ins. Co., 278 Kan. 777, 793, 107 P.3d 1219 (2005) (finding the State was not an intended third-party beneficiary of a subcontract). The burden of establishing standing to bring suit as a third-party beneficiary rests with the party asserting it. See Stovall, 278 Kan. at 793; See also Byers v. Snyder, 44 Kan. App. 2d 380, 386-87, 237 P.3d 1258 (2010).
Before a third party, in this case the Kincaids, may enforce a contract from which they would benefit, the Kincaids must show the existence of some provision in the contract that operates to their benefit. A third-party beneficiary does not need to be personally named in the contract to have standing, as long as he or she is a member of a designated class or identifiable as a benefitted person. Hartford Fire Ins. Co. v. Western Fire Ins. Co., 226 Kan. 197, 210, 597 P.2d 622 (1979).
In the case before us, the trial court incorrectly held that the third-paiiy beneficiary needed to be specifically named:
“Plaintiffs reference no provisions in any of the several contracts referred to which include a promise or the specific intention to benefit them nor any provisions made directly and primarily for their benefit.
. . The disclosure statement given to SIRVA signed by die defendants Dess . . . states it is intended to provide full disclosure to potential buyers but that is not the document plaintiffs claim to be third party beneficiaries of and even if it were, die use of ‘potential buyers’ eliminates any suggestion of an intent to benefit diis specific buyer plaintiff.”
The Desses support this interpretation, arguing that “there is no reference to Plaintiffs [the Kincaids], or to any other individual potential buyers, whatsoever. Without such stated intent, Plaintiffs cannot sustain any claim under a third-party beneficiary theory as a matter of law.”
Nevertheless, as explained earlier, a third-party beneficiary does not need to be personally named in the contract to have standing, as long as he or she is a member of a designated class or identifiable as a benefitted person. See Hartford Fire Ins. Co. 226 Kan. at 210; see also Restatement (Second) of Contracts § 308 (1981) (“It is not essential to the creation of a right in an intended beneficiary that he be identified when a contract containing the promise is made.”). Thus, it is sufficient that he or she can be identified when performance is due and the promisor fails to perform his or her promise.
As a result, the key inquiry is whether the Kincaids were intended to be benefited by the contract provision in question. Here, the Desses contracted with Sirva to assist in selling their home. In the contract between the Desses and Sirva, the Desses promised Sirva to be hable for any damages for an “action brought by any purchaser from the Buyer [Sirva] relating to . . . the condition of the Property . . . which the Seller [the Desses] would otherwise be hable to Buyer [Sirva].”
Thus, the Desses are the promisors, the ones who make die promise to be enforced. Sirva is the promisee, the one to whom the promise is -made. The Desses agreed to fully disclose all information about the property on a seller’s disclosure statement furnished by Sirva. = It was further agreed between Sirva and the Desses that Sirva and “other prospective buyers” could rely on the seller’s (the Desses’) disclosure statement in determining “whether and on what terms to purchase the Property.” Although the Kin-caids are not a party to the contract between Sirva and the Desses, the Kincaids are intended by both Sirva and the Desses to be the third-party beneficiary of the contract.
In tiie contract between the Desses and Sirva, the Desses promised to do the following: “Fully disclose all information about the Property on a Seller Disclosure Statement provided by Buyer [Sirva] upon which Buyer and other prospective buyers may rely in deciding whether and on what terms to purchase the Property.” (Emphasis added.) It was not necessary that the Kincaids be named as third-party beneficiaries when tlié contract was made between Sirva and the Desses. It was sufficient that the Kincaids were a member of an identified class. Here, the Kincaids were sufficiently described or designated as “other prospective buyers” of the property in question. Thus, the Kincaids are intended by both Sirva and the Desses to be the third-party beneficiaries of the contract and are intended by Sirva and the Desses to have enforceable rights against the Desses, the promisors, under the contract based on their alleged failure to “[fjully disclose all information about the Property.” '
Incorporation by reference
Next, the Kincaids maintained that the signed disclosure statements formed a contract between the parties and that because the disclosure statements were incorporated by reference into their contract with Sirva, they had privity. To support their argument, the Kincaids relied on this court’s decision in Osterhaus v. Toth, 39 Kan. App. 2d 999, 187 P.3d 126 (2008), aff'd 291 Kan. 759, arguing that the Osterhaus court held that disclosure statements are contracts. The trial court rejected this argument:
“The first argument is that the disclosure statement signed by the Dess defendants March 20, 2007 and by the plaintiffs [Kincaids] April 25, 2007 (Ex. 3 of Kincaids), is a contract between them relying on the authority of Osterhause [sic] v. Toth, 39 Kan. App. 2d 999, 1006, 187 P.3d 126 (2008). The disclosure signed March 20, 2007 and April 25, 2007, referred to is entirely different than the documents relied on in the Osterhause [sic] case and it contains no language indicating it to be a contract. The plaintiffs [the Kincaids] signed it acknowledging receipt, but nowhere is there language referring to it as a contract or justifying that implication or inference. In addition, of course, it is not the ‘contract’ sued upon, and cannot provide ‘privity’ for the contract sued upon.”
Clearly, the primaiy issue here is whether the Kincaids and the Desses have privity of contract. Privity of contract is the connection or relationship which exists between two or more contracting parties. It is essential to the maintenance of a lawsuit based on a contract that there is privity between the plaintiff and the defendant. State ex rel. Stovall v. Reliance Ins. Co., 278 Kan. 777, 793, 107 P.3d 1219 (2005).
In this case, the Kincaids further argue that under the rider sales agreement, the disclosure statements provided by the Desses were incorporated into their agreement with Sirva. When a writing is incorporated by reference, it becomes a part of tire contract only so far as to effectuate the specific purpose intended. Starr v. Union Pacific Ry. Co., 31 Kan. App. 2d 906, 910, 75 P.3d 266 (2003). The Kincaids argue that the purpose of the disclosure statement was to inform prospective buyers of the conditions of the property. The Kincaids contend that the Desses knew that the disclosure statements would be provide^ to prospective buyers of their house and knew that the prospective buyers would be relying on the disclosure statements. The Kincaids further maintain that Sirva was simply a “straw man” in the transaction and that the Desses should not be allowed to make false representations in their disclosure statements and then be protected by tire “straw man.”
Alternatively, the Desses deny that they were a party to the real estate contract between the Kincaids and Sirva. The Desses acknowledge that although the original residential real estate contract had the Desses listed as the sellers, their name was later crossed out by the Kincaids who then listed Sirva as the sellers of the property. The Desses argue that their disclosure statement was given to Sirva who then provided it to the Kincaids. The Desses maintain that this disclosure statement does not create any contractual relationship between them and the Kincaids. The Desses contend that the Kincaids are simply trying to substitute the Desses into their contract with Sirva because tire Kincaids voluntarily waived their right to hold Sirva liable.
To determine die specific purpose of incorporating the disclosure statements, we must interpret the language of the disclosure statements. In reviewing the disclosure statements completed by the Desses, it is readily apparent that the Desses knew: (1) that the disclosure statéments would be provided to prospective buyers; (2) that prospective buyers would rely on the information; and (3) that they needed to make an honest effort to fully reveal the information requested.
Additionally, under the Sirva disclosure statement, it is clear that Sirva denies any knowledge of the property and that Sirva cannot be held responsible for the content or accuracy of the disclosure statement. The Sirva disclosure statement states: “Seller(s) [the Desses] agree to indemnify and hold SIRVA Relocation LLC (SIRVA Relocation) harmless from any claim made against SIRVA Relocation regarding conditions of the property, which are not disclosed to SIRVA Relocation herein.” This means that the Desses knowingly agreed to be held liable to any claim regarding the conditions of the property based on their disclosure statement.
While the Desses argue that the Kincaids are simply -trying to substitute tire Desses into their contract with Sirva because they waived the right to sue Sirva, the Desses ignore the fact that they also agreed to hold Sirva harmless from any claim regarding the conditions of the property, leaving the Desses as the responsible party.
After reviewing the disclosure statements, it is readily apparent that the disclosure statements were incorporated into the contract for two specific purposes: (1) to inform the Kincaids of the condition of the house, and (2) to place liability for the condition of the house on the Desses. Thus, because the disclosure statements were incorporated by reference, they became a part of the contract between Sirva and the Kincaids and provide the required privity between the Kincaids and the Desses.
In summary, privity was established because the Kincaids were intended third-party beneficiaries and because the disclosure statements were incorporated by reference into the contract between Sirva and the Kincaids.
Did the trial court err in granting summary judgment on the Kin-caids’ fraud and negligent misrepresentation claim?
In granting the Desses motion for summary judgment, the trial court ruled that the Kincaids failed to establish reasonable reliance which is an essential element of fraud and negligent misrepresentation. The trial court stated:
“Reasonable reliance is essential for negligent misrepresentation as well as fraud; movants [the Desses] have pointed out the absence of evidence of any reliance and non-movants [the Kincaids] have not come forward with any facts to support the claim. Therefore, the claims of fraud and negligent misrepresentation fail.”
Based on the trial court’s ruling, it seems that the trial court wanted the Kincaids to provide a separate document containing the seller’s disclosures relied upon by the Kincaids to prove reliance. This argument was rejected in Osterhaus v. Toth, 291 Kan. 759, 249 P.3d 888 (2011). In Osterhaus, our Supreme Court held that it was error to require a separate writing to prove rebanee because the separate writing would essentially make the disclosure statement have no legal effect. 291 Kan. at 777-79.
In addition to not having a separate writing to show rebanee, the Desses argue that tire Kincaids cannot show reasonable rebanee because they specifically affirmed that they were hot relying on any representations when they signed the disclosure statements and the rider sales agreement. The Desses maintain that the Kincaids represented in their contract that they were relying solely on théir own opinions and inspections and that, this representation negates any alleged reliance on the Desses’ disclosure statement.
The rider sales agreement contains a “Buyer Beware Clause” which states:
“Sirva makes no representations or warranties of any sort whatsoever regarding the property, its condition, value or surrounds and may not be held liable or responsible for any damages or liability to buyer or any other person or entity. Buyer is agreeing to fully rely on its right to inspections, tests and surveys granted herein to discover any undesirable or latent conditions regarding this property, and acknowledges that Sirva has made no representations thereon upon which Buyer may rely. The provisions herein shall survive closing and delivery of the deed. The closing of this transaction shall constitute Buyer s full and complete acceptance and release of claims for all conditions and inspection matters herein.”
The Desses maintain that the Kincaids knowingly waived their rights to rely on any representations when they signed the rider sales agreement.
In arguing that the Kincaids failed to show reasonable reliance, the Desses present the same arguments that were rejected by our Supreme Court in Osterhaus. In Osterhaus, the purchasers of a house sued the seller after discovering defects that were not disclosed by the seller. The seller moved for summary judgment arguing that the buyer could not show reasonable rebanee because the buyer had waived its right to rely upon tire seller s representations by signing tire buyer’s acknowledgement. Our Supreme Court rejected that argument and held that a contractual waiver does not bar breach of contract or fraudulent misrepresentation claims as a matter of law where a buyer’s reasonable inspection before purchasing the house did not reveal a seller’s false representations and later defects are discovered.
Therefore, based on Osterhaus, the trial court erred in holding that the Kincaids could not show reasonable rebanee. As a result, we reverse the trial court’s grant of summary judgment to the Desses on the Kincaids’ claims for fraud and negbgent misrepresentation which were based on the rationale that the rebanee element could not be met as a matter of law due to the Kincaids’ signature on the rider sales agreement.
Next, we must determine whether the Desses’ alleged misrepresentations or their alleged failure to disclose the defects could have been reasonably relied on by tire Kincaids, or whether a reasonable inspection would have revealed the defects complained of.
In this case, the Kincaids had an inspection done on the house but did not discover the defects until a month after closing. The Kincaids maintain that numerous items were not disclosed by the Desses or were concealed by them and their realtor. The Kincaids discovered the following defects: (1) that the exterior of the home was EIFS; (2) that the property had prior water damage; (3) that some of the exterior and interior walls had dampness problems; (4) that many windows were defective and rotten; and (5) that the home was contaminated with mold.
Because the trial court granted summary judgment on this issue, we cannot conclude from tire record whether a reasonable inspection would have revealed the defects about which the Kincaids complain. Moreover, our court has previously held that the reasonableness of an inspection was a question of fact. See Brennan v. Kunzle, 37 Kan. App. 2d 365, 386, 154 P.3d 1094 (2007) (“The determination of whether the defects were discoverable through a reasonable inspection was a function of the trier of fact.”)- Thus, we reject the Desses’ arguments that, as a matter of law, the Kin-caids could not have relied on the Desses’ representations because the Kincaids were relying on their own inspections. We determine that summary judgment was improperly granted in favor of the Desses.
The “as is” and release provisions in the contract do not bar the Kincaids’ claim for breach of contract and fraud and negligent misrepresentation.
Next, the Desses argue that they are entitled to summary judgment because the amendment titled “Resolution of Unacceptable Conditions” contains an “as is” provision. Specifically, paragraph 1 of the amendment states that “Buyer now agrees to accept tire Property ‘as is’ without correction of, or other action by the Seller.” Paragraph 3 also states in relevant part that “Seller and Licensees assisting in the sale of the Property are released from any further obligation or liability related to the condition of tire Property.”
This exact argument was made in Osterhaus. The amendment in Osterhaus contained similar language to the amendment in this case. In rejecting this argument, the Osterhaus court held that tire “as is” clause must be read in context. 291 Kan. at 786. Our Supreme Court noted that the amendment clearly dealt with the issue of unacceptable conditions revealed by the buyer’s inspection and that it did not extend to defects that were for some reason not discovered during the inspection. Therefore, this “as is” language did not extend to tire defects that were not discovered during the Kincaids’ inspection and does not preclude the Kincaids’ claim for fraud and negligent misrepresentation.
Did the trial court err in granting summary judgment on the Kin-caids’ civil conspiracy claim?
Next, the trial court also granted summary judgment on the Kin-caids’ civil conspiracy claim based on a lack of evidence of a meeting of the minds. The Kincaids argue drat the evidence was sufficient to support a civil conspiracy claim that the Desses, along witir their realtor Trida Wolfe, conspired to defraud the Kincaids by omitting known defects in the house in order to finalize the sale of the house.
Our Supreme Court has held that civil conspiracy is an actionable tort in Kansas. Stoldt v. City of Toronto, 234 Kan. 957, 967, 678 P.2d 153 (1984). The elements of a civil conspiracy are:
“ ‘(1) two or more persons; (2) an object to be accomplished; (3) a meeting of the minds in the object or course of action; (4) one or more unlawful overt acts; and (5) damages as the proximate result thereof.’ [Citation omitted.] Conspiracy is not actionable without commission of some wrong giving rise to a cause of action independent of the conspiracy.” 234 Kan. at 967.
The Kincaids assert that the independent wrong giving rise to the cause of action is the Desses’ decision to defraud them. In response, the Desses maintain that the trial court properly granted them summaiy judgment on this issue because the Kincaids failed to establish the underlying unlawful act of fraud. Nevertheless, we have reversed the grant of summary judgment on the fraud and negligent misrepresentation claim and remanded the issue to the trial court. Therefore, the Kincaids’ civil conspiracy claim does not fail simply because they could not establish the underlying crime of fraud.
In addition to proving the underlying crime of fraud, the Kin-caids also must show a meeting of the minds to prove civil conspiracy. The Kincaids argue that “Wolfe and the Dess Defendants knew of the problems, had a financial interest in selling the property for as much as possible, and knowingly sold the property without disclosing the defects.” The problem with this argument, however, is that tire record does not contain evidence that there was ever an agreement or meeting of the minds between the Desses and Wolfe to defraud the Kincaids. A party cannot avoid summary judgment on the mere hope that something may develop later during discovery or at trial. U.S.D. No. 232 v. CWD Investments, 288 Kan. 536, 559, 205 P.3d 1245 (2009). Mere speculation is similarly insufficient to avoid summary judgment. Unified Gov’t of Wyandotte County v. Trans World Transp. Svcs., 43 Kan. App. 2d 487, 490, 227 P.3d 992 (2010). Moreover, as the trial court correctly stated, anyone who sells a house has a financial interest in selling the property for as much as possible, so that is not evidence of a conspiracy. As a result, the trial court properly granted summary judgment to the Desses on the Kincaids’ civil conspiracy claim.
Did the trial court err in granting summary judgment on the Kin-caids’ rescission claimP
Finally, the Kincaids argue that the trial court erred in granting summary judgment to the Desses on their rescission claim based on a lack of privity and a lack of reliance. As explained earlier, there was privity between the Kincaids and the Desses and the Kincaids did not need to provide any additional documents to prove that they relied on the Desses’ disclosure statement. Thus, the trial court’s reasoning for granting summary judgment was incorrect. We also reject die Desses’ contention that the Kincaids cannot maintain an action for rescission because they cannot prove fraud. Again, as explained earlier, the trial court improperly granted summary judgment on the Kincaids’ fraud and negligent misrepresentation claim.
In Dreiling v. Home State Life Ins. Co., 213 Kan. 137, 147, 515 P.2d 757 (1973), our Supreme Court defined rescission as follows:
“Rescission of a contract is the annulling or abrogation or unmaking of the contract and die placing of the parties to it in status quo. It necessarily involves a repudiation of die contract and a refusal of die moving party to be further bound by it. (Black’s Law Dictionary 4th Ed. p. 1472.) It is said to be die unmaking or an undoing of the contract from the beginning, and not merely a termination. [Citation omitted.] Rescission is described in Cleaves v. Thompson, 122 Kan. 43, 46, 251 P. 429, as follows:
‘Rescission is an equitable remedy designed to afford relief from contracts entered into through mistake, fraud, or duress. Ordinarily, the nature of relief asked in such cases must be such as to place die parties in tiieir original situation. . . .’ ”
In their brief, the Kincaids rely on the rule stated in Sharp Electronics Corp. v. Lodgistix, Inc., 772 F. Supp. 540, 546 (D. Kan. 1991), which stated “unilateral rescission is generally available . . . as an equitable remedy to the victim of fraud who ceases to accept the benefits of the contract and promptly gives notice to the other party.” (Emphasis added.)
Here, the Kincaids maintained possession of the property after discovering the defects in the home rather than rescinding the contract. The Kincaids began repairing the defects long before they filed suit against the Desses where they sought damages. Further, the Kincaids’ failed to give the Desses prompt notice of their intent to rescind the contract. Thus, the Kincaids claim for rescission fails. See Morse v. Kogle, 162 Kan. 558, 560, 178 P.2d 275 (1947) (one who seeks to rescind a contract on the grounds of fraud must do so with reasonable promptness after discoveiy of the fraud). As a result, the trial court properly granted summary judgment in favor of the Desses on the Kincaids’ rescission claim. See Hockett v. The Trees Oil Co., 292 Kan. 213, 218, 251 P.3d 65 (2011) (If a trial court reaches the correct result, its decision will be upheld even though it relied upon the wrong ground or assigned erroneous reasons for its decision.).
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The opinion of the court was delivered by.
Brewer, J.:
This was an action commenced iu the district court of Saline county by the county commissioners of that county, to recover for the conversion of certain bonds of that county., The petition .charges a conspiracy on the part of the defendants. A change of venue was had and the case taken to Ottawa county, where, after a protracted trial, judgment was rendered in favor of the plaintiff and against certain of the defendants for $60,616. To reverse said judgment against them, the plaintiffs in error, Robert Morrow, John W.McMillan, John K. Rankin, Andrew Terry, j. G. Mohlér and Wm. A. Simpson, have instituted this proceeding in error. We have given this case a very careful and thorough examination, for three reasons — 1st, the record is very voluminous, amounting to nearly 600 pages of closely-printed matter, and only by careful examination could all the facts developed in-the trial receive due consideration; 2d, the amount involved is large; and, 3d, and chiefly because it presents a case altogether too common in the history of such matters, in which a-county acting in good faith and with an honest desire to aid in a railroad enterprise, suddenly awakes to a realization of the fact that its bonds have passed beyond' its control and into the hands of innocent holders, without a compliance with the conditions upon which those bonds were voted, and without a receipt of the consideration for which its tax-payers voluntarily assumed an onerous burden of taxation. It is, in such cases, a cheerful duty for the courts to reach out the strongest hand after the guilty perpetrators of such wrong. It is no less a duty, and a duty resting with the largest burden upon this court,Oto see that the eager hand of anxious justice shall touch no one innocent of the wrong. That a wrong was done to the plaintiff, no one in this case questions; but the various counsel strenuously assert that their respective clients are innocent. No one will dispute the fundamental proposition which underlies the claims of' these plaintiffs in error, which is, that the mere fact; that the guilty parties have used these plaintiffs in error to make profitable unto themselves the wrong, does not necessarily make such' plaintiffs guilty of the wrong, or responsible to the county for the injuries received thereby: A party who purchases stolen property from a thief is guilty of no wrong, if he were ignorant of the larceny and purchased in good faith in the ordinary course of business and without notice of any facts calculated to arouse supicion or put him upon inquiry. On the other hand, it is equally true, that he who is so destitute of moi’al sense as to knowingly assist a thief in' the disposal of his stolen property, is seldom so impressed with the solemnity of an oath as to be unwilling to testify to his entire ignorance and innocence, and also true that the fact of his guilty knowledge is one of the most difficult-things to establish by evidence; and often it is only shown by a series of minute, and, each by itself considered, apparently trifling and immaterial facts. And while this is true where the transaction is one of open, bald larceny, it is still more true where the principal accomplishes his wrong, not by direct and wrongful taking, but under semblance of law and right — by trick, overreaching, and fraud. In such case, the evidences of guilty participation are often most difficult of detection. The line which separates the guilty from the innocent assistant in the wrong, is often exceedingly hard to trace.
With these preliminary suggestions, let us proceed to a consideration of the facts in the case, and the following are undisputed: In 1871, a corporation was in existence, known as the Republican, Salina & Arkansas "Valley railway company, organized for the purpose of constructing a -railroad from Concordia on the north, through Saline county, south to the Arkansas river. September 18th, 1871, it submitted a proposition to Saline county for a subscription of $150,000. Such proposition, known as the second proposition, contained, among other things, these provisions:
The Republican, Salina & Arkansas Valley railway company propose to the county of Saline as follows: To build, equip, and operate a first-class railroad, with a gauge common to the railroads of the state, from the town of Concordia, in the Republican valley, via the counties of Cloud, Ottawa, Saline, and McPherson, in a southerly direction, passing through the city of Salina.
“ In consideration of the above-named proposal, the county of Saline, one of the counties named, agrees to subscribe one hundred and fifty thousand' dollars to the capital stock of said company, and to issue in payment therefor, bonds of said county to that amount, payable in thirty years after date, and bearing interest at the rate of seven per cent, per annum, payable semi-annually, principal and the interest payable in the city of New York.
“If at an election to be held in said county of Saline to determine the question of such subscription and the disposal of the stock so to be subscribed upon the terms set forth in this proposal, a majority of all the votes cast at such election shall be found to be in favor of -such subscription, and such disposal, then such subscription shall be made in the manner prescribed by law, and bonds to the amount of such subscription shall be prepared and delivered to such persons as the county commissioners and said railway company shall agree upon as trustee.
“Said bonds to be held by said trustee until said line of road is completed as follows: When said company have graded the road and put in the proper masonry through the county of Saline, then it shall be the duty of said trustee, when said, work is thus completed as stipulated, to pay and deliver to said railway or their assigns, on the certificate of governor of the state of such * completion, the sum of fifty thousand dollars of such bonds, so held, cutting off the interest-bearing coupons to the date fixed in the certificate of said governor of the state, showing when said grading and .masonry were completed from the county line to the town of Salina, and said ■interest-bearing coupons, when so cut off, shall be delivered to the county treasurer of the county of Saline for the disposal of the county.’ And when said company shall have put down the ties, built the bridges, put on the rails, and have so completed the road that it can be operated from the south boundary line of the county to the town of Salina, then said trustee shall deliver to said railway company or its assigns, when thus due, the further amount of fifty thousand dollars of such bonds, and the remaining sum of fifty thousand dollars, to be delivered to said company or its assigns, on the completion and operation of the road through the said county of Saline. But no bonds issued to said company shall draw any interest prior to the date fixed in the certificate of the governor determining that said road has been properly graded, and the masonry completed, to the town of Salina, which date thus fixed shall be the date of accruing interest ■ on the bonds; and if the railway company deem it best to build from the town of Salina to the northern boundary of the county, rather than to, or from the southern boundary first, then this proposition thall be so construed that the said company may build from Salina north or south, or to Salina from north boundary or the south boundary as deemed best by said company, and the payments shall fall due in the .same manner as if said road had been built from the southern boundary of the county.
“Certificates of stock in the capital stock of said company shall be issued by said company to said county of Saline at the time specified for payments of the several installments of bonds by said company.”
The proposition was submitted to a popular vote, October 24th, 1871, and carried. After this vote, the matter seemed tow rest in abeyance until the spring of 1873, when Abram Cutler appeared on the scene. March 15th, 1873, he entered into a contract with said railway company to construct that portion of its road running through Saline county. As part payment, he was to receive the bonds of Saline county, the same to be delivered to him at the times and in the manner specified in the proposition of the company to the county. March 18th, 1873, the company signified to the county that it was ready to proceed with the building of the road, and on the 19th the county commissioners passed a resolution directing its chairman to make the subscription, directing, also, the preparation of the bonds and their delivery to Winslow, Lanier & Co., bankers of New York city, the trustee agreed upon by all parties, such delivery to be accompanied by a copy of the proposition and of the proceedings of the county board. In pursuance of this resolution the subscription was made. On the 29th of March the commissioners met in special session and passed a resolution directing that no bonds should be delivered to the trustee until the company had given to the county a bond in the sum of $150,000, conditioned for its performance of the terms of the proposition. On April 1st, only the third day thereafter, the commissioners again met and made an order expunging its resolution of March 29th, and in lieu thereof approved a contract between the company and the county, whereby the former agreed to comply with the terms of the proposition in regard to building, equipping and operating a railroad through Saline county, and elected to build and equip that part of the road lying south of the city of Salina before commencing the grading on the line north of Salina. The bonds, 150 in number, of the amount of $1,000 each, fully executed, were thereafter taken to New York by the chairman, and delivered to Wins-low, Lanier & Co. The latter, however, refused to accept the trust, and merely received the bonds as an accommodation until the parties in interest could agree upon a new trustee. June 11th, 1873, there appears of record in the proceedings of the county commissioners these resolutions and orders:
“Salina, Kas., June 11, 1873.
“Members all present as yesterday. It was resolved that, whereas, on the 21st day of March, A. D. 1873, one hundred and fifty (150) bonds, of the denomination of one thousand (1,000) dollars each, were issued by the county of Saline, Kansas, in aid of the Republican, Salina & Arkansas Valley railway company; and whereas, by an order of the board of said county commissioners of Saline county, said bonds were placed on deposit with Messrs. Winslow, Lanier & Co., bankers in New York city, as trustees; and whereas, the said Winslow, Lanier & Co., bankers as aforesaid, have refused to accept said bonds and act as such trustees, it is hereby ordered that the Lawrence Savings Bank, of Lawrence, Kansas, whereof Andrew Terry is president, Charles Robinson vice president, and John K. Rankin cashier, be and is hereby appointed trustee for said bonds, to keep the same safely and to deliver the same in accordance with the terms of the proposition upon which said bonds were voted for, on the 24th day of October, A. D. 1871, a copy of which accompanies the bonds, and also in accordance with the agreement and election of the said party of the second part, under the said proposition, which is as follows, to wit: ‘To first build and equip that part of the said line of road lying south of the city of Salina, before commencing the grading on the line north of Salina.’
“And it is further ordered, that Abram Cutler & Co., commissioner II. F. Woolley, be required to give their respec- . tive orders on Messrs. Winslow, Lanier & Co., in favor of said Lawrence Savings Bank, as trustee for the said one hundred and fifty (150) bonds as aforesaid, (the said orders having been approved by Abram Cutler, assignee.)
“And be it further ordered, in the following words, to wit: Having this day passed over, viewed and inspected the grading and masonry of the Republican, Salina & Arkansas Valley railway, through the county of Saline, from 'the south county line to the city of Salina: therefore,
“Resolved, In our opinion the same is graded, and the proper masonry is put in on said line, of railway in accordance with the meaning and true intent of the second proposition submitted to and voted upon by the people of Saline county on the 24th day of October, A. D. 1871.
“Board adjourned.
“[l. s.] D. Beebe, County Clerk”
And on the same day the chairman wrote an order, concurred in by Cutler, to Winslow, Lanier & Co., to deliver the bonds to the Lawrence Savings Bank. The bonds were . obtained from Winslow, Lanier & Co. by Andrew Terry, the president of the savings bank; $100,000 of them left on deposit in New York city, and the remaining $50,000 brought ■to Lawrence and left with the savings bank there. A formal acceptance of this trust was executed, on behalf of the bank, by one Charles S. Treadway, assistant cashier. No date appears to this acceptance, and it is not clear from the testimony when the bonds were obtained from Winslow, Lanier & Co., whether before or after the date of the resolution above named. On the 23d of June, 1873, the $50*000 " of bonds were registered in the auditor’s .office at Topeka. With the auditor was filed a certificate of the governor and indorsement of the attorney general. It would appear probable from the testimony, that these bonds were not registered during ordinary business hours, and also that the attorney general did not write his indorsement ón the certificate until after the bonds had in fact been registered; but it is unquestionable that the certificate of the governor was obtained at about the day of its date, and the indorsement of the attorney general made within a day or so of the registration. Such certificate and indorsement are in these words:
“ Whereas, by the terms of- a proposition voted upon by the legal voters of Saline county, Kansas, on the 24th day of October, 1871, a copy of which is hereto attached, that the
governor of the state of Kansas,’ upon conditions therein named, shall issue this certificate; and whereas, it has been made to appear by the affidavit of A. D. Searl, H. W. Jame-son, H. C. Jones, Wm. Armstrong, and C. W. Wiley, .now on file with me, and by a certificate of the county attorney of Saline county, Kansas, and a letter from S. M. Palmer, a county commissioner of said county of Saline, that the Republican, Salina & Arkansas Valley railway company did have said railway graded, and the proper masonry put in, through the county of Saline, Kansas, from the town of Salina to the county line of Saline county, Kansas, on the 19th day of May, 1873, in conformity to the terms of the proposition above referred to:
“Now, therefore, I, Thomas A. Osborn, governor of the state of Kansas, on the information above cited, do hereby certify that the said Republican, Salina & Arkansas Valley railway company did have the said railway graded, and the proper masonry put in, on the 19th day of May,1873, through the county of Saline from the town of Salina, Saline county, Kansas, to the county line of said county, in conformity to the terms of the proposition, a certified copy of which is hereto attached.
“In testimony whereof, I have hereunto subscribed my name and caused the great seal of state to be attached, at Topeka, this 4th day of June, A. D. one thousand eight hundred and seventy-three, and this tenth year of the state.
Thomas. A. Osborn.
“By the Governor:
“[l. s.] W. H. Smallwood, Secretary of State.
“The bonds’within described are entitled to registration. Topeka. A, L. Williams, Attorney General.”
On June 24th the bonds were delivered to Robert Morrow under an order from Cutler, the contractor, of date April 15th, 1873. At least, that is the date of the receipt to the bank therefor, and the date of the actual delivery as the jury find, though the testimony of the clerk of the auditor is to the effect that Cutler and Morrow presented the bonds for registration. Of these bonds, six passed into the possession of defendant Mohler, being left by Morrow in the savings bank for him. Forty-four passed from Morrow into the possession of defendant McMillan. McMillan transferred thirty of" these to defendant Richardson, twelve to defendant Rankin, and two back to Morrow. On June 26th, 1873, the county commissioners, having heard of the registration and delivery of these bonds, met, and passed a resolution denouncing such delivery as a wrong upon the county, and directing the county attorney to institute legal proceedings against "the bank; also, directing the chairman to telegraph to the presidents of certain boards of stock exchange that the bonds had been obtained by fraud, and that their payment would be resisted. And telegrams were accordingly sent to such parties giving that notice. The following is a copy of one:
“Salina, Kas., June 27, 1873.
“To the President of Stock Exchange, Boston, Mass.: Fifty thousand dollars Saline county railway bonds were wrongfully obtained. Payment will be contested.
“H. F. Woolley,
“Chairman Board Co. Com.”
Several meetings of the board were had on succeeding days, and many resolutions concerning the bonds considered, and some passed. On July 17th following, this telegram was sent to the various parties to whom the former telegram had been sent, and also to the savings bank:
“Salina, Kas., July 17, 1873.
“To the President of the Board of Stock Eaechange, Boston, Mass.: Our telegram of June 27th, 1873, having reference to fifty thousand dollars Saline county bonds issued to aid in constructing the Republican, Salina & Arkansas, Valley railway, is hereby withdrawn. By order of board of county commissioners. H. F. Woolley,
“Chairman Board Co. Com., Saline Co., Kas.”
This action grew out of these matters. On July 8th, 1873, the following proposition was made to the county:
“To the Hon. Board of County Commissioners, Saline Co., Kansas — Gentlemen : On behalf of the Lawrence Savings Bank, as also on behalf of Robert Morrow and the holders of the bonds of Saline county, Kansas, issued in aid of the Republican, Salina & Arkansas Valley railway, I request a retraction or withdrawal of the telegram of the chairman of the board of county commissioners, Saline county, Kansas, and David Beebe, county clerk, Saline county, Kansas, to the president of the stock exchanges of New York, Philadelphia,Boston, Chicago, St. Louis and Kansas City, discrediting $50,000 of Saline county bonds. And T also offer and propose in behalf of said savings bank and Robert Morrow to the county of Saline, Kansas, through its board - of county commissioners, as follows-: To give a good, sufficient and legal bond in the penal sum of $100,000, conditioned to save Saline county, Kansas, harmless from any damages by reason of the delivery of the $50,000 in Saline county bonds, should the said county be in anywise damaged by reason of any premature delivery of said bonds. W. W. Nevison,
“Att’y for Lawrence Sav’gs Banlc and Bobt. Morrow, et al.
“Salina, Kas., July 8, 1873.”
On July 15th this proposition was accepted by the commissioners. On July 16th the following bond was executed:
Know all men by these presents, That we, the Lawrence Savings Bank, of Lawrence, Kansas, as principal, and Robert Morrow, and J. W. McMillan, and W. A. Simpson, of Lawrence, Kansas, as sureties,-are held arid firmly bound unto the board of county commissioners of the county of Saline, in the state of Kansas, in the penal spin of one hundred thousand dollars, to the payment of which, well and truly to be made, we do hereby bind ourselves and each of us, our heirs, executors and administrators, firmly by these presents.
Witness our hands, at Lawrence, in the county of Douglas and state of Kansas, this the 16th day of July, A. D. 1873.
The condition of this obligation is such, that whereas, the said Lawrence Savings Bank was heretofore chosen by the board of county commissioners of said county of Saline, and the Republican, Salina & Arkansas Valley railway company, trustee to receive, hold and deliver certain bonds of said Saline county issued to aid in the construction of said railway; and whereas, the sum of fifty thousand dollars of said bonds has been delivered by said Lawrence Savings Bank, trustee as aforesaid, to the assignee of said railway company:
Now, therefore, if the said Lawrence Savings Bank shall save the said Saline county harmless from all damage or loss by reason of the said delivery of said sum of fifty thousand dollars in bonds as aforesaid, in case the same shall be adjudged to have been prematurely delivered, or delivered in violation of the trust of said Lawrence Savings Bank, and shall deliver into the possession of the state treasurer of the state of Kansas, upon the order of the chairman of said County board, the one hundred thousand dollars in bonds of said county still remaining in the hands of said savings bank as trustee, then this obligation shall be void; otherwise, shall be and remain in full force and effect.
Lawrence Sayings Bank,
By John K. Rankin, Cash. Lawrence Savings Bank.
Robert Morrow.
J. W. McMillan.
W. A. Simpson.
Thereupon, on July 17th, the board of county commissioners met, and passed these resolutions:
“Whereas, on the 15th day of July, A. D. 1873, it was ordered by the board of county commissioners as follows:
“‘Salina, Kas., July 15, 1873.
“‘Ordered, by the board of county commissioners of Saline county, Kansas, that upon the filing with the county clerk of said county, and the acceptance of the same by the board of county commissioners,, by the Lawrence Savings Bank, of a good and sufficient bond in the penal sum of one hun•dred thousand dollars ($100,000), conditioned to save Saline county, Kansas, harmless from any damage by reason of any premature delivery of Saline county railway bonds to Abram Cutler or his assigns, by said Law•ence Savings Bank, also conditioned that the Lawrence Savings Bank surrender the one hundred thousand dollars ($100,000) railway bonds now in their possession to the state treasurer, that the chairman of the board ■of county commissioners is hereby instructed to telegraph to the presidents of the stock exchanges of New York city, Boston, Philadelphia, Chicago, St. Louis, and Kansas City, Missouri, withdrawing the telegram of June 27th, 1873, having reference to Saline county bonds issued in aid of the Republican, Salina & Arkansas Yalley railway company.’
“Whereas, ou the 17th day of July, A. D. 1873, the Lawrence Savings Bank presented to the board of county commissioners of Saline county, for its acceptance, a bond for the sum of $100,000, and conditioned as set forth in the foregoing order of July 15th, 1873, which bond was in full-compliance with the conditions of the order above mentioned,- and which said bond was filed by the county clerk, and, upon motion of S. M. Palmer, seconded by H. E. Woolley, was duly accepted by the board as being in full compliance and conformity with the conditions .of said order:
“Therefore, ordered, that the chairman of the board of county commissioners of said county of Saline be and he is hereby ordered to forthwith telegraph to the presidents of the stock exchanges of New York, Philadelphia, Boston, Chicago, St. Louis, and Kansas City, notifying said stock exchanges or the presidents thereof, that the said county of 'Saline, by an order of the board of county commissioners of said county, do withdraw their telegrams sent to several boards of exchange on the 27th day of June, A. D. 1873, having reference to. $50,000 of Saline county bonds issued to aid in the construction of the R.S. & A. V. R. W.”
Nothing further seems to have done by the county until January, 1875, and then, on January'22d, this action was commenced. The amended petition sets forth in detail the various transactions which led to the issue and the placing of the bonds in the hands of the savings bank as trustee; the ■non-completion of the railroad, or of any such portion thereof as would entitle the company to any of the bonds; alleges a conspiracy on the part of the defendants to cheat and defraud the plaintiff out of these bonds, and a conversion of such bonds by them. After a protracted trial, the jury returned a general verdict in favor of the plaintiff, now defendant in •error, and against Abram Cutler and such other defendants as are now plaintiffs in error. In addition to this general verdict, they also answered certain questions of fact submitted to them. So far as those submitted at the instance of the plaintiff are concerned, the answers simply stated that the' bonds had been prematurely delivered, and showed such noncompliance with- the terms of the proposition by Cutler and the railroad company, as made it clear that the bonds were wrongfully delivered. The record shows as to the defendants’ questions, the rulings of the court thereon and the answers thereto, as follows:
If the jury find for the plaintiff against any of the defendants, except Abram Cutler and the Republican, Salina & Arkansas Valley railway company, then they will answer the following questions. If they find for the defendants, except as aforesaid, the questions need not be answered :
1. Did the defendant, John K. Rankin, deliver to Robert Morrow, defendant, the fifty bonds of Saline county (mentioned in plaintiff’s petition) on the 24th day of June, 1873? —Yes.
2. Had said John K. Rankin, at the time of such delivery, any knowledge that the railroad had not been graded and the proper masonry put in through the county of Saline, pursu ant to the proposition voted upon and accepted by the board of Saline county, as set forth in the plaintiff's petition? — Not that we know.
3. If the last above question is answered in the affirmative, then the jury will state when and how said Rankin obtained such knowledge and who communicated the same to said Rankin.
4. Did said Rankin act negligently in. the delivery of said bonds to Robert Morrow? — No.
5. If the last above question is answered in the affirmative, then the jury will state in what such negligence consisted.
5J. Did the said defendant, John K. Rankin, before delivering said bonds, submit the question of the legality and propriety of such delivery to proper and competent legal counsel, and did he follow and act upon the advice of such counsel in making such delivery, and did he then believe such delivery to be legal and proper? — He did.
6. Did the defendant, John K. Rankin, have any pecuniary interest in the delivery of said bonds to the defendant, Robert Morrow? — Not that we know of.
7. If the above sixth interrogatory be answered in the affirmative, then the jury will state how said Rankin was interested in such delivery, and the extent, value and amount of such interest.
8. Did the governor of the state, prior to the delivery of said fifty bonds by said Rankin to said Morrow, certify that the Republican, Salina & Arkansas Valley railway company did have the said railroad graded, and the proper masonry put in, on the 19th day of May, 1873, through the county of Saline, from the town of Salina, Saline county, Kansas, to the county line of said county, in conformity to the terms of a proposition to said certificate attached? — Yes.
9. If the jury.find that such certificate as is mentioned in the above eighth interrogatory was made, then they will find and state whether said Rankin delivered said bonds upon such certificate and under advice of competent legal counsel ? —Yes.
10. Did the defendant, Robert Morrow, at the time of the delivery of said bonds to him, have knowledge that the Republican, Salina & Arkansas Valley railway company had not their road graded, and the proper masonry put in, through the county of Saline, as stated in the certificate of the governor? — We cannot say.
10J. If the jury answer the last above question in the affirmative, then they will state when and how said Morrow received such information.
11. Did the defendants, John K. Rankin and Robert Morrow, or either of them, and if so, which, in any way procure, or aid in procuring the certificate of the governor hereinbefore mentioned, and if so, how? — No evidence to prove that they did.
12. Did the defendant, Jeremiah G. Mohler, act otherwise in the procuring the said governor’s certificate, than as the attorney'of defendant, Abram Cutler? — Yes.
13. Did the defendant, Jeremiah G. Mohler, conspire with any of the defendants in this action to procure the improper delivery of the said fifty bonds of Saline county by defendant, John K. Rankin, to Robert Morrow, and if so, with which of the defendants and when and where was such conspiracy formed? — Yes; with Abram Cutler.
13J. Did defendant, John K. Rankin, conspire with any of the other defendants in this action to cause the said fifty bonds of Saline county to be illegally delivered, and if so, with whom did he so conspire, and when and where was such conspiracy formed? — No.
14. What other persons, defendants herein, than John K. Rankin, and Robert Morrow, if any such there were, took part in the delivery of said bonds on June 24th, 1873?— Don’t know.
15. Did the defendant, William A. Simpson, ever conspire with any of the other defendants in this action to procure the delivery of said fifty bonds of Saline county without the party to whom the same were delivered" being entitled thereto? — Don’t know.
16. If the jury answer the last aforesaid question in the affirmative, then they will state with whom said Simpson conspired, and when and by what act he, the said Simpson, manifested his adhesion to such conspiracy.
17. Did the defendant, John W. McMillan, ever conspire with any of the other defendants in this action to procure the delivery of the aforesaid fifty bonds of Saline county without the party to whom the same were delivered being entitled thereto, and if so, with whom and by what act did he manifest his adherence to such conspiracy? — We don’t know.
18. Did the defendant, Andrew Terry, ever conspire with any of the other defendants in this action to procure the unauthorized delivery of the said' fifty bonds of Saline county, and if so, with whom, where and by what act did he manifest his adherence to such conspiracy? — Don’t know.
19. Did the defendant, Jeremiah G. Mohler, ever have any knowledge of or acquaintance with either of the defendants, William A. Simpson, Andrew Terry, John K. Rankin, John W. McMillan, or Robert Morrow, until after the delivery of said fifty bonds by John K. Rankin to Robert Morrow, on the 24th day of June, 1873, and if so, with which of the said defendants?
(Refused to be submitted, and excepted to by defendants, asking submission.)
20. Has Jeremiah G. Mohler ever seen or conversed with defendant William A. Simpson, or directly or indirectly ever had any communication whatever with said Simpson?
(Refused to be submitted, and excepted to by defendants, asking submission.)
21. Did the defendant, John W. McMillan, ever have any other interest in or connection with the said fifty bonds, excepting as he purchased the same in‘the. ordinary course of trade for full value, and if so, the jury will state what said interest was? — Yes, an interest in common with Rankin, Morrow, Richardson, Cutler, Mohler, and Simpson.
22. Did John W. McMillan, at the time he purchased a part of the bonds in suit, so purchase the same on the faith of the telegrams of the plaintiff and the letter of the chairman of the board of county commissioners of Saline county, affirming their validity and stating that the interest thereon would be promptly paid at maturity? — Yes, partly.
Ü3. Did the defendant, Abram Cutler, after the delivery of the said fifty bonds of Saline county by John K. Rankin to Robert Morrow on the 24th day of June, 1873, procure and deliver to the plaintiff a bond in settlement and satisfaction of the plaintiff’s claim for damages on account of any premature delivery of said fifty bonds, and did the plaintiff accept such bond as full indemnity therefor?
(Refused to be submitted, and excepted to by defendants, asking submission.)
24. Has the plaintiff still possession of said bond ?
(Refused to be submitted, and excepted to by defendants, asking submission.)
25. Did Robert Morrow, at the time he sold forty-four of said bonds to John W. McMillan, have in his presence or possession the telegram to the Lawrence Savings Bank, dated July 17th, 1873, and signed by H. F. Woolley, chairman board of county commissioners, withdrawing their former telegram discrediting said bonds, and also the letter of the said chairman of said board of county commissioners affirming the validity of said bonds and stating that the interest thereon would be promptly paid at maturity? — Cannot answer.
26. Did Robert Morrow sell said forty-four bonds to John W. McMillan upon the faith of said telegram and letter, and did said McMillan buy the same upon the faith of said telegram and letter? — John W. McMillan bought partly on the faith of the telegram and letter. Robert Morrow sold wholly on the faith of what he received.
27. Did Robert Morrow loan money, to Abram Cutler with which to carry on the work of grading and building the said line0of railway, taking as security for said loan a pledge of forty-four of the.fifty bonds first due and deliverable to said Cutler under his contract? — He did, according to the deposition of Abram Cutler..
28. If the defendant, Robert Morrow, had any other or different connection with Abram Cutler, or the said railroad enterprise in Saline county, than that stated in the last interrogatory, state what it was and when it began.
29. Did said Robert Morrow receive the said bonds to indemnify himself on said loan in pursuance of said pledge ?— He did, according to the deposition of Abram Cutler.
30. If said Robert Morrow received said forty-four bonds otherwise than in pursuance of said pledge, the jury will find how otherwise.
31. Was Jeremiah G.. Mohler entitled to receive six of said fifty bonds for services rendered said Cutler, when said bonds were deliverable under said contract between the county of Saline and the said railway company? — No.
- 32. Did Robert Morrow turn over for the benefit of Jeremiah G. Mohler six of said fifty bonds, supposing that the said Mohler was entitled to the same? — No.
33. Was Robert Morrow, under his contract with Abram Cutler -for moneys loaned, entitled to receive forty-four of said bonds as an indemnity for such moneys loaned; and did he receive them believing himself so entitled? — As between Cutler and Morrow, he was. We have no knowledge of his belief.
34. Did defendant, William A. Simpson, havé any knowledge of the delivery of any of the coupons, or bonds men tioned in plaintiff’s petition, until after they were so delivered? Had he any interest in such delivery, and if so, what interest? — We think not.
35. What was the market value of the bonds and coupons mentioned in the plaintiff’s petition on the 24th day of June, 1873? — No evidence showing what it was.
Upon the record, counsel call our attention to various alleged errors:
1. In impanneling the jury.
2. In the admission of testimony.
3. In the instructions.
4. In overruling a demurrer to the evidence.
5. In refusing to submit certain questions to the jury.
6. In placing the jury in custody of the bailiff while the court was adjourned for a couple of days to permit the judge to open court in an adjoining county.
7. In refusing to enter judgment upon the answers to the special questions in favor of the defendants.
8. And as to all the plaintiffs in error except Mohler, in sustaining its jurisdiction over the action.
We shall devote our attention, in the first place, to the question of the proper judgment to be entered upon the verdict and the answers. So far as the defendant Mohler is concerned, the inquiry is easily answered. Aside from the inferences arising from the general verdict, the jury specifically answer that he conspired with Abram Cutler to procure the improper delivery of the bonds. He therefore stands charged directly, as well as by implication, with the wrong done to the county.
With reference to the other defendants, the inquiry is attended with more difficulty. It will be necessary to consider more particularly the charges in the petition, so as to determine the scope of the general verdict. It charges that defendants fraudulently conspired to cheat and defraud the plaintiff out of these bonds, and to convert the same to their own use, and to put them into circulation without compliance by the railroad company with the conditions upon which the bonds might be properly delivered; that, in pursuance of such conspiracy, the savings bank and John K. Rankin, its cashier, delivered the bonds to Robert Morrow on June 24th, 1873, in order that the same might be by said defendants converted and disposed of to their own use; also, that on said 24th of June, 1873, and before the commencement of this action, said defendants fraudulently converted the bonds to their own use; also, that since the bonds were so delivered to defendant Morrow, the defendants put said bonds into circulation and disposed of them to bona fide holders; also, that said defendants, in pursuance of said conspiracy, knowingly aided and abetted each other in so placing, disposing of, and converting said bonds. Now the general verdict is an affirmation that these charges are true. In other words, it affirms that the conspiracy existed; that in pursuance thereof the bonds were prematurely delivered, were put into circulation, and disposed of to bona fide holders; and also, generally, that they were converted to their own use by defendants. Turning now to the special questions, we find that to several the jury simply answered, “Don’t know.” We have had occasion heretofore to refer to the irregularity of such answers. Answers should be direct and positive. A case is to be tried upon the evidence, and according as an alleged fact is or is not established by that evidence, it does or does not for the purposes of that case exist. The main object of special questions is, to bring out the various facts separately, in order to enable the court to apply the law cor-_ . ,, rectly, and to guard against any misapplication of the law by the jury. It is matter of common knowledge,'that a jury influenced by a general feeling that one side ought to recover, will bring in a verdict accordingly, when at the same time it will find a certain fact to have been proved which in law is an insuperable barrier to a recovery in accord with the general verdict. And this does not imply intentional dishonesty in the jury, or a failure on the part of the court to instruct correctly, but rather a disposition to jump at results upon a general theory of right and wrong, instead of patiently grasping, arranging and considering details. Scarcely any jury will, when questioned! as to a single separate fact, respond that it exists, without some sufficient evidence of its existence. Its response will as a rule be correct, if direct, and if not correct, then evasive and equivocal. And such evasive and equivocal answers always cast suspicion on the verdict. The suggestion springs almost involuntarily, that the answers are thus evasive and equivocal from an unwillingness on the part of the jury to stultify themselves so far as to say that the-facts were or were not proved, mingled with a fear that a direct and positive answer will avoid the effect of the general verdict they have returned. We do not mean to affirm that this is always the case, or that, in fact, such were the motives that influenced the action of this jury, for sometimes, doubtless, the jury are really uncertain as to the fact, and at the-same time their verdict should be in favor of the one party,, whether the fact did or did not exist. It is therefore a right of a party to have a direct response to the questions. Here,, however, the parties were content to abide by these answers;, and each party when invited by the court, declined to ask for further or more specific answers. Now. what construction is to be placed upon such answers ? They imply a denial of the existence, or perhaps more correctly, of proof of the existence, of the facts concerning # t ° which the questions were propounded. And one, for all the purposes of the case, is the same as the other. And this lack of proof operates against the party who needs to make the proof. Take the case at bar: If, for instance,, it was necessary to sustain plaintiff’s recovery against defendant Simpson, to show that he was a party to the conspiracy, then an answer that the jury “don’t know” whether he ivas or was not such a party, is equivalent to saying that the fact was not.proven; and so, for all the purposes of the case, it is to be taken as not a fact.
The allegation in the petition is, that the bonds were delivered by the trustee on June 24th, 1873, and so the jury find. They also say that none of the defendants, save Rankin and Morrow, took part in such delivery; (Question No. 14.) The jury find that neither McMillan, Terry nor Simpson conspired with any of the other defendants to procure such delivery; (Questions. Nos. 15, 17 and 18.) The jury show that they took no part in the delivery, and were not in the conspiracy to effect the delivery. They were neither the real actors nor conspirators with the real actors. If the wrong then charged was simply the obtaining of the bonds from the hands of the trustee, these answers would seem clearly to relieve these defendants from liability. But, say counsel for the county, the wrong charged is not simply obtaining the bonds from the trustee, but passing them into the hands of innocent holders, thus putting it out of the power of the county to defend against or to recover the bonds, and making the wrong profitable to the wrongdoers. And while Simpson, McMillan and Terry may have been entirely innocent and ignorant as to the first wrong, yet they afterward came into the conspiracy and assisted in putting these bonds into circulation, and thus became jointly responsible with the original conspirators for the conversion — and all this is implied in the general verdict. As for instance, if two parties were sued for the conversion of certain property, and it appeared upon the trial that one stole and the other .thereafter helped to dispose of the property, the latter would be equally responsible with the former, though he had nothing to do with the larceny, providing that at the time he assisted in disposing of the property he knew that it was stolen, and was helping the thief to profit by his larceny. He aids in completing the wrong; and a special finding that he had nothing to do with the larceny in the first place, and was in fact entirely ignorant of it at the time it was perpetrated, is not so inconsistent as to avoid the effect of a general verdict against him.
That the jury intended only this by these answers is, it is said, made more clear by the answer to the 21st question, in which they say that McMillan had an interest, in common with Nankin, Morrow and the rest, other than as he purchased the bonds for full value in the ordinary course of trade. What such interest was, is not disclosed, but the affirmation is that there was a community of interest, and an interest other than such as would result from the ordinary purchase and sale of bonds. But a community of interest suggests a community of purpose; and an interest other than that of an ordinary purchaser or vendor, implies, under the circumstances of this case, an interest in the wrongful delivery and conversion of the bonds. If these parties were successive purchasers in good faith, how would they have any interest in common? The very idea of succession implies a want of community, and outside the interest as purchasers and vendors of these bonds, no other interest is suggested in the pleadings than that of conspirators in the success of their conspiracy.
This argument is strong. Technically, it is correct; for the allegations of the petition are broad, and it is possible for these defendants to have been free from all connection with the delivery of the bonds to Morrow — indeed, to have been at the time entirely ignorant of it, and yet to have afterward so connected themselves with the disposal of the bonds as to be in law equally responsible for their conversion. But when we examine the testimony, and read the instructions of the court, there is strong reason to believe that the jury understood these questions to be as broad as the allegations of the petition, and hence returned the evasive answers. The court commenced its charge in these words:
“The theory of the plaintiff in this case is, that the defendants, and each of them, conspired and confederated together to get possession of and convert to their own use, unlawfully, the fifty bonds, and coupons attached, mentioned in the pleadings and evidence in this cause. The defendants, on the other hand, deny that there was any conspiracy upon their part in that respect, and say that the bonds were properly delivered and purchased by them in good faith, and for value.”
And again, further on, it used this language:
“This is the important question in the case, i. e., to determine if there was any conspiracy upon the part of any two or more of the defendants.”
And such was the tenor and effect of the entire charge. It placed before the jury as the pivotal fact, the existence of a conspiracy to wrongfully obtain the possession of these bonds, and asserted a liability .upon all who were members of such conspiracy. It defined the meaning of the term conspiracy} gave the rules of evidence for determining its existence, as also, who were its members, and responsible each for the actions of the others. And going beyond the instructions to the testimony, the evident aim of that was to link all the defendants in a single conspiracy, and make all the various acts of the several parties their appointed contribution to the consummation of the single wrong. It is impossible to read the testimony without being convinced that the case was tried upon the assumption on the part of the plaintiff, that the defendants were all parties to the conspiracy to obtain possession of the bonds. Even with regard to the explanation suggested by counsel, that these defendants did not enter into the conspiracy until after the actual delivery of the bonds, is it not true that he who enters in at any time, becomes party to, and responsible for all the acts done in furtherance of the conspiracy, ab initio¶ We.quote from counsel’s brief:
“Every one who enters into a common purpose or design ’ is deemed, in law, a party to any act which had before been done by the others, without regard to the time at which he "entered the combination, and is a party to every act which may afterward be done by any of the others, in furtherance of such common design. (Wharton’s Am. Grim. Law, 325; 2 Russell on Crimes, 698.)”
Is not this a correct statement of the law? — and is not a finding that they did not conspire to procure the wrongful delivery of the bonds, tantamount to a finding that they were not parties to the conspiracy to defraud the county, either before or after the actual delivery by the trustee to Morrow ?
Passing by the doubt which hangs over the intention of the-jury in these answers, to an examination of the testimony — and as the bulk of this, so far at'least as it attempts to connect these three defendants with the wrong, is in deposition, we can properly review it and determine its weight nearly as well as the jury — and it seems to us, that there was not sufficient to justify any verdict against these parties.
So far as Terry is concerned, the only connection he is.shown to 'have had with the bonds is, that -as president of the savings bank he received an order for these bonds, went to Wins-low, Lanier & Co., and obtained the bonds; that he offered them for sale, and failing to find a purchaser, left $100,000 in New York subject to the order of the savings bank; brought the remaining $50,000 to Lawrence and placed it in the vault of the savings bank. It is not shown that he participated in the delivery of the bonds to Morrow, or was present at the time, or even knew of its being done. None of the bonds are shown to have passed into his possession after the delivery, nor does it appear that he ever had a dollar’s worth of interest in them or profited in any manner by the transaction. If it be said that he was president of the bank named as trustee, and therefore responsible for what the bank did, we reply that whether the acceptance of the trust by the bank was ultra vires or not, an officer of the bank who took no part in and was not-privy to and had no interest in the delivery of the bonds and who was not specially charged with their care and custody, will not be responsible for the delivery by another officer made without negligence upon the advice of competent legal counsel, although it should afterward appear that such delivery was in fact premature and wrongful.
So far as Simpson is concerned, his connection with the transaction consisted simply in signing as one of the sureties the bond executed by the bank to the county after the question was raised as to the propriety of the delivery to Morrow. It is true that about the time Cutler commenced work in Saline county, he applied to Simpson for pecuniary aid in carrying on the work, but the application was declined. And it is also true that testimony was' admitted of Cutler’s statements when he first visited Salina to secure his contract, that Simpson was interested with him and that he was to get money from Simpson’s bank, etc. But such testimony is of no earthly value to connect Simpson with the conspiracy or the conversion. It is as to him the merest hearsay.
The testimony places McMillan in a different attitude, for it shows that he purchased from Morrow the forty-four bonds, and thereafter disposed of them to other parties. Now such purchase may have been in good faith, or merely colorable, to assist in putting the bonds into the hands of bona fide holders and as his appointed part in carrying out the common purpose of wrong. To determine which was the fact, it will be necessary to consider briefly the conduct of others, and also the conduct of the' authorities of Saline county. And. it will be borne in mind that his sharing in the purpose of wrong, his connection with the conspiracy, must be shown, and is not presumed. He is presumed innocent until the contrary appears. Mere negligence even does not make him a wrong-doer or a conspirator. Knowledge of the wrong and an intention to assist are essential. And first, .it will be noticed that the governor had given a certificate as contemplated by the terms of the original proposition to the county. Such certificate was, to say the least, one calculated to mislead. The proposition contemplated but one certificate, and' that not to be issued until the time at which the company should be entitled to receive $50,000. That certificate was to be of the completion of the grading and masonry through the county, and was also to state the time of the completion of such work through part of the county as the date for the commencement of interest on all the bonds. Such certificate was to be the evidence upon which the trustee was to act, for while the language is not entirely perspicuous, it can hardly be that the parties intended that a trustee, for whose compensation no provision was made, should himself come to Saline county and make a personal examination. The issue then of a certificate by the governor would naturally suggest that the time for the trustee to deliver the $50,000 of bonds had arrived. And a mere casual examination of the certificate actually made would only confirm this impression, for he certifies that the work has been completed “through the county of Saline ... in conformity to the terms of the proposition.” A more careful reading, however, would show that it does not .go to the full extent required by the proposition to entitle the railroad company to the bonds. Yet upon this certificate the attorney general certified that the bonds were entitled to registration, and the auditor registered the bonds.
Again, on the 11th of June the county commissioners had passed a resolution stating that they had passed over and examined the work, and that between Salina and the south line of the county the work had been done according to the true intent and meaning of the proposition — a statement which the testimony in this case would seem to show was entirely unwarranted. And after the delivery of the bonds, and a dispute had arisen as to the propriety of that delivery, the county commissioners had accepted a bond, upon which McMillan was one of the sureties, as a settlement of the dispute, and had withdrawn their adverse telegrams. In addition thereto, the chairman of the county board had written to the contractor this letter:
“Salina, Kas., Aug. 4, 1873.
“Abram Cutler, Esq., Supt. and General Manager R. 8. & A. V. R. W. Co., Salina, Kansas — Dear Sir: In reply to yours of 2d inst., I will say that I have no doubt that the interest on the $50,000 voted in aid of the R. S. & A. V. R. W. will be paid promptly when due.
“Yours truly, H. F. Woolley,
“Chairman Board County Comm’rs.” ,
Of all these facts McMillan had knowledge at the time he purchased. This purchase was not made until after the date of the letter just quoted, which was some six weeks after the delivery of the bonds, and after the commissioners had knowledge of such delivery, and nearly three weeks after the commissioners had accepted the bond of indemnity and withdrawn their adverse telegrams. The circumstances of the purchase do not cast suspicion on the transaction. Mr. McMillan had been for some years in the banking business at Lawrence, and was at the time president of the Second National Bank of that city. The price paid was reasonable— about what, from the other testimony,-would seem to have been the market value of such bonds of unquestioned valid- ° ity. He disposed of the bonds thereafter to apparently • bona fide purchasers. He paid for the bonds, and received pay for them; and the manner of adjusting and making these payments was not such as would be resorted to by parties conscious of wrong-doing, and seeking to place a color of fair dealing upon a dishonest act. To conclude, then, as to these three parties, it seems to us that looking simply at the pleadings, the verdict, and the answers to the special questions, it is a matter of doubt whether judgment should not have been entered in favor of, instead of against, them; that, interpreting the answers by the instructions and the testimony, it should have been entered in their favor; and that upon the testimony in the case they were entitled to a verdict and judgment. As all the testimony pointing against them was admitted before the plaintiff rested, the court erred in not sustaining their demurrer to. the evidence.
We pass now to a -consideration of the case as it stands against the defendant Rankin. He was the cashier of the savings bank, and the officer who delivered the bonds to Morrow. Two questions arise as to him: Was he a member of the conspiracy to obtain the wrongful possession of. the bonds? If not, and- he acted innocently in the matter, is he responsible to the county for his error of judgment in prematurely delivering the bonds? From the answer to the second question, construing it in the manner we have heretofore indicated was proper, it appears that he had no actual ■ knowledge of the non-completion of the proper amount of work at the time he made the delivery. It also appears that he was not guilty of any negligence in making the delivery; (Question No. 4.) That he submitted the question of the legality and propriety of such delivery to-proper and competent legal counsel, acted upon the advice of such counsel, and believed that delivery legal and proper; (Question No. 5J.-) That he had no pecuniary interest in such delivery; (Question No. ■6.) That he had before him the certificate of the governor, and acted upon such certificate and the advice of counsel; {Questions 8 and 9.) That he did not procure or aid in procuring such certificate of the governor. (Question No. 11.) That he did not conspire with the other defendants to cause the illegal delivery of said bonds; (Question No. 13§.) These answers leave as the only possible grounds for sustaining the general verdict, either that he entered into the conspiracy after the actual delivery, and then illegally and knowingly contributed to the conversion of the bonds, or that the fact of a wrongful and premature delivery renders him liable, independent of any question of knowledge or intent. With reference to the first, we need add nothing to what we have already said, when construing the verdict as to Simpson, Terry and McMillan. With reference to the second, it implies these two propositions: 1st, That a trustee, acting in good faith upon the advice of competent counsel, is responsible for any error in his judgment or mistake in such advice; and 2d, That where such trustee is a corporation, the officer thereof, who actually performs the duty intrusted to the corporation, is, also personally responsible for any such error or mistake. We do not understand that to be the law. A trustee is not an insurer. He is not absolutely bound for the results of his actions. He must exercise the highest good faith, He may not speculate m the property placed m his hands. He not interest adverse to the trust. He is bound to use care and diligence in the execution of the trust and the management of the trust property — as much care and diligence as a man of prudence would in his own affairs. Having done all that, he is not responsible for mere error or mistake. A trustee to loan, may loan on security which proves insufficient or the title to which fails; a trustee to sell, may sell at a price below that which might have been obtained; but if he has acted in good faith, with reasonable diligence, and upon the advice of competent ■counsel, he is free from personal responsibility. Any other rule would cast upon a trustee a burden which no prudent man would ever assume.
Turning now to the testimony, and it justifies these findings of care, good faith, etc., in the delivery of the bonds, and it fails to show any subsequent coming into the conspiracy, or any wrongful assistance in the subsequent disposition of the bonds. True, it appears that after McMillan had obtained these bonds, he transferred twelve to Rankin, but the testimony shows that Rankin purchased them for a gentleman named Baldwin, living in Waterbury, Conn. Mr. Rankin also, as cashier in behalf of the bank, signed the bond of indemnity executed to the county after the delivery. Both of these transactions seem to have been in good faith, ■and we cannot conceive why these, unaccompanied by evidences of wrongful intent, should be made the basis of recovery against this defendant. We shall not recapitulate the •circumstances attending the delivery, as in respect to that the jury exonerate Mr. Rankin, and it is enough to say that the testimony justifies such finding.
We pass now to a consideration of the case as it stands against the defendant Morrow; and here the peculiar answers made by the jury to some of the questions surround the question as to the effect of these answers with doubt and ■difficulty. It appears that he was the party who received .the bonds from Rankin; (Question No. 1.) That at the time he did not know whether the proper amount of work had actually been done; (Question No. 10.) That he did not procure or aid in procuring the governor’s certificate; (Question-No. 11.) The answers to these questions tend to exculpate ■Morrow, but still they do not exclude the idea of Morrow’s •connection with the conspiracy; neither is there any direct assertion anywhere in the answers that Morrow was not in .such conspiracy. In this respect there is a marked and significant distinction between Morrow and the four defendants, whose connection with the case we have just been consider ing. ■ Such an omission can -hardly be deemed accidental. "As he actually received the bonds from the trustee, and put them into circulation, a general verdict against him under the charge of conspiracy and wrongful conversion would seem to be,conelusive, unless there be some plain denial of wrongful intent' in such transaction. None such is found in these answers. In response to the 25th question, the jury say they cannot answer. This is about, equivalent to the-“Don’t know” of which we have heretofore spoken, and must be taken as asserting that Morrow did not have the-telegram and letter referred to. Yet such conclusion is not at variance with what is implied, if not asserted, in the very next answer, for there it is said that McMillan, who bought-from Morrow, bought partly on the faith of said telegram and letter, and that Morrow sold wholly on the faith of what he received; and this in response to a question whether Morrow and McMillan respectively sold and bought upon the faith of said telegram and letter. Unsatisfactory as are-these answers, they are not so much,so as some that follow. The 27th and 29th questions the jury answer by saying that “'He did according to the deposition of Abram Cutler.” This-amounts to nothing. It is simply a statement of the import of some part of the testimony. But was the testimony-true? Was the fact as stated by the witness? To determine this is the function of the jury. A stenographer will give us the testimony. An inference might be drawn from the form of the answer that the jury did not believe the-witness, but it would be simply an inference. The most that can be said of this is, that the jury stated the testimony, and referred the question of fact to the court to determine. Such an .answer may be, should be, wholly disregarded.
The answer to the 32d question seems to fully imply knowledge, at least, of the wrong on th.e part of Morrow,, or else is entirely immaterial, according as the negation goes to the belief of Morrow as to Mohler’s rights, or the fact of Morrow’s turning over to Mohler the- bonds.
The answer to the 33d question does not relieve Morrow,. for while it shows that, as between Cutler and himself, he was entitled to the bonds, it is limited solely to that, and when considered in reference to the question asked, excludes the idea of any absolute right to. the bonds, and also any belief on his part that he was in fact so entitled.
It follows from’ this examination that, upon the pleadings, verdict and answers, the judgment was properly rendered against Morrow and Mohler, for .the reason that, as to the former, the answers are not inconsistent with and do not therefore overbear the verdict; and as to the latter, the answers are in accord with and support ' ^ 1 L the verdict. As to these two parties, therefore, the inquiry is, whether there was any error in the trial sufficient to compel a reversal of the judgment, and if not, whether the testimony was sufficient to sustain a verdict against them. As to the former, we think little need be said.
So far as any question arises on the. impanneling of the ' jury, nothing appears outside of the journal entry; and eliminating therefrom all mere matters of evidence which are improperly there entered, there is nothing to show any impropriety or irregularity in the matter. (McArthur v. Mitchell, 7 Kas. 173.) So far as the testimony is concerned, some of ^ seems unnecessary, and a useless cumbering °f the reCOl’d, but none of it such as would jusin ,i tify a reversal so far as these two defendants are , affected. Cutler’s declarations were admissible against him. So far also as they affect these parties, they were substantially made good by his testimony; and that certainly was . as strong as his declarations. There was sufficient prima fade evidence of the signatures to the various telegrams to justify their admission; and independent of the question whether they were shown to have reached the parties to ■whom they were addressed, they were competent as written admissions or statements of the parties whose names were subscribed thereto.
Objection is made also to the action of the court in refusing to submit to the jury the question of the giving and acceptance of the indemnity bond. That such a bond was given is undisputed, and the court might properly have submitted the question. But still we think that upon the theoi'y of this case of a conspiracy, the execution of such a bond would not prove a bar to the action. It would be but one fact in the case; evidence pro or con on the question of the conspiracy, and not a merger of the cause of action for the conspiracy.
Error also is alleged in adjourning the case from Saturday until Tuesday, and committing the jury meantime to the custody of the bailiff. In making such adjournment, which was made on Saturday night at 11:45 o’clock, the court directed the bailiff in charge of said jury to keep the jury in his custody, excepting that he might allow them to separate at six o’clock p.m. until nine o’clock A.M., and also each day from twelve o’clock M. until half-past one o’clock p.m. for the purpose of dinner, and at the same time duly admonished and cautioned the said jury; and the jury were thereupon permitted to separate until Sunday morning at nine o’clock. Nothing further appears of record until Tuesday morning, when the court again convened and the jury came in and returned their verdict. That such a proceeding was irregular, we are all agreed; and that it is an irregularity which calls for a reversal,' the writer of this opinion is inclined to think. The court may have power to permit the jury to separate, but can it delegate such power to the bailiff? Must it not determine the question at each time of separation, and ought it not then to admonish the jury? My associates, however, incline to the opinion that though irregular, the proceeding does not appear to have wrought any prejudice to the substantial rights of the defendants. It does not appear that the jury were not in fact kept together from the moment they convened on Sunday morning until the court met on Tuesday. Nothing is shown as to what transpired between the hour of adjournment on Saturday and the convening of the court on Tuesday, and in the silence of the record injury will not be presumed. The rule might be more strict in a criminal case, and under the circumstances in such a case it might be the duty of the court to grant a new trial. But in a civil action this irregularity is not deemed of sufficient moment to justify this court in setting aside the verdict.
These are all the matters suggested as occurring during the trial which we deem necessary to notice, and as to these we have simply mentioned our conclusions, without entering into any lengthy discussion. We pass then to the final question, and that is, whether there was sufficient testimony to sustain the verdict as to these defendants. And here the question as often stated is not whether, upon the testimony, we should have come to the same conclusion, but whether there was testimony which, uncontradicted and unexplained, is sufficient to sustain the verdict. This question must be answered in the affirmative. There wás testimony tending to connect these parties with a conspiracy to wrongfully obtain and convert these bonds, and testimony which, disregarding all contrary evidence, was sufficient to justify the verdict. A brief glance at some of the items of testimony is all that we shall attempt. And first, as to Mohler. He was living in Salina, and as a citizen there, interested in the welfare of the city; would probably know whether work was being done on the line of the railroad north, as well as south, of Salina. He was the attorney of the contractor, Cutler, as prior to the contract between the railroad company and Cutler, he had been the attorney of the company. Under such circumstances, it is not reasonable to suppose that he was ignorant of the fact that no work had been done north of Salina. Would he not know whether the right of way had been obtained or not? -Again, he was instrumental in obtaining the evidence upon which the'governor’s certificate was issued. Could he still be ignorant of the extent of the work done? Certainly a jury would be warranted in finding that he knew exactly the situation, and that the bonds were not in fact earned. Fur- " ther, he was during that year a partner with T. F. Garver in the practice of the law. A contract in writing of date June 3, 1873, was entered into between Mohler and Garver on the one side, and Cutler on the other, for services of the former for one year for $400 cash and one $1,000 bond of Saline county. Mohler testified that the firm had no previous employment from Cutler, but that Cutler agreed with him about the 29th of March, 1873, to give him $6,000 of these bonds if he should procure a rescission of the order of the county commissioners of March 29th, 1873, requiring the railroad company to give a bond. This rescission was made April 1st, 1873. Mr. Garver was not informed of this employment, and received none of these bonds. „ Cutler testified that the contract with Mohler for the $6,000 bonds was for legal services as to any and all matters pertaining to the construction of the railroad.
Now the inquiry which naturally suggests itself is, if this employment was for professional services, why was his partner excluded from knowledge of the employment and share in the compensation; and why this formal written contract about two months thereafter with the firm of Mohler & Garver for a year’s services? And if the employment was not for professional services, would any legitimate transaction justify the giving away of about one-eighth of the first series of bonds to induce the county commissioners to recede from' the precautionary measures they had already taken to protect the county against just such rascality as afterward took place? Again, as showing knowledge and assistance, it appears that on the 23d of June, the day on which the bonds were registered, Cutler telegraphed from Topeka to Mohler to have the chairman of the county board say who signed the bonds; and on the same date, at the instance of Mohler, two telegrams were sent from the chairman and one from the county clerk to Cutler in reference to the issue and signature of the bonds. On the 24th, as we have seen, the bonds were delivered by the trustee to Morrow upon the order of Cutler. The order specified no number of bonds, but Morrow received fifty, the entire number then in the vault of the savings, bank, giving a receipt for the fifty, and immediately deposited six in said bank for Mohler. On the 25th and 27th, respectively, Mohler sent these telegrams:
• “Salina, Kansas, June 25,1873.
“To R. G. Jamison, Esq., Cashier State Bank, Lawrence, Kansas: See cashier savings bank, and ascertain whether the papers I wrote you about are on deposit there to my credit. Answer. J. G. Mohler.”
“Salina, Kansas, June 27,1873.
“To Maj. J. W. Johnston, President State Bank, Lawrence, Kansas: Please do not mention any correspondence I have had with your bank. Speak to Jamison and Crommie. Answer. J. G. Mohler.”
“(17-Pd-110.-Collect of Cutler.)”
And on the same day he wrote, at the dictation of Cutler, a dispatch of the latter to Rankin, the cashier of the savings bank, to “divulge no names of parties having bonds.”
"Without further noticing the testimony in detail, it seems to us that the jury were warranted in concluding that Mohler knew that the bonds were unearned, and that Cutler was seeking to obtain them before he was entitled thereto, and that he lent his services to Cutler to accomplish this wrong upon the county, in consideration of the promise and receipt of a no trifling share of the bonds.
As to Morrow, the question is not so clear. Indeed,^the Chief Justice inclines to the opinion that the testimony is not sufficient to warrant the judgment against him. The other judges think, however, that the case as to him comes within the settled rule of decision in this court as to the conclusiveness of a verdict upon questions of fact. Morrow was the party who received the bonds from the trustee and put them into circulation. Prior thereto, and from the commencement of the work, he advanced money to Cutler, the contractor. He was present, assisting in securing the registration of the bonds. Seven days after the governor’s certificate, we find Cutler telegraphing to him to have the savings bank accept the trust for the bonds, and his dispatch to Cutler, inquiring, “Have you got matters fixed with Woolley? Can I help you by coming to Salina?” On receipt of the bonds, he deposits six in the same bank, to the order of Mohler. And when sued on a charge of conspiracy to cheat and defraud the county of these bonds, he offers no syllable of his own testimony as to his acts in the premises, his knowledge or his ignorance of the facts, the moneys he advanced and the moneys he received, or any other matter to show him innocent of wrong. And the testimony of Cutler, which is “ offered for the defendants is of that character, which, as has been said, “damns the witness and ruins the client.” One closes the perusal of his testimony with little confidence in the credibility of the witness, and with strong suspicions of the bona fides of a transaction in which he was one of the prime actors.
Giving weight to all the testimony, and considering the relations of Morrow to the principal facts in the case, his conduct as shown by others, his silence as a witness, and the presumption of knowledge existing in favor of one who had so much at stake, and we are forced to the conclusion that it cannot be said, as a matter of law, that there was no testimony to support the verdict and judgment against him.
This disposes of the case; and -we can only say in conclusion as at the commencement, that we have given the voluminous record a protracted and careful examination. We believe we have considered every question, and weighed every part of the testimony, and the conclusion we have reached, while not entirely satisfactory or free from doubt, is our best judgment in the premises.
The judgment of the district court as to Mohler and Morrow will be affirmed; and as to Rankin, Terry, Simpson, and McMillan, the judgment will be reversed, and the case remanded with instructions to sustain their demurrer to the plaintiff’s evidence.
The costs in this court will be divided between the county and the defendants, Mohler and Morrow.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
Counsel for the defendant in error attacks the proceedings filed in this court, and an examination of them conclusively shows that the merits of the case cannot be considered upon the record presented to us.
The papers attached to the petition in error purport to be copies of the case-made, and of certain pleadings and journal entries, and, within M. K. T. Co. v. Palmer, 19 Kas. 471, are not available on review.
Since the brief of the counsel for the defendant in error was filed, the plaintiff in error has transmitted to us the original case-made, but even if we consider this as a part of and as attached to the petition in error, the record is still defective. The case-made does not purport to incorporate therein the pleadings, judgment, or any of the proceedings of the court, except the evidence produced and offered on the trial. Prior to the certificate of the judge signing and settling the case, the record reads as follows:
“The above and foregoing is all the evidence úsed or offered on the trial of this case in the district court by both plaintiff' and defendant, which with copies of the pleadings of the parties, motions, orders and rulings of the court and journal entry of the judgment in the case, constitute the case-made for the supreme court.”
No copies of the pleadings, motions, orders, rulings of the court or judgment were, at the time of the' settling of the case, attached to such case-made, nor have they been attached since then. If we however consider the copies annexed to the transcript as attached to the case, we must do so upon the certificate of the clerk of the district court, and we at once come in conflict with Shumaker v. O’Brien, 19 Kas. 476. The settling and signing of a ease-made is an act of the judge, and a reference in the case to papers, copies of proceedings, etc., to be certified by the clerk of the court and not to be incorporated into the case-made as a part of it, is insufficient. In this cause sixty days were taken to make a case, and the copies of certain papers and proceedings referred to in the original case-made cover less than ten pages, so there seems to be no reasonable excuse for not having these pages annexed to the original case when signed, and certified to by the judge; but if not then copied and ready to be attached to the case, they should have been clearly made a part of the same without our being compelled to take evidence aliunde that the papers separate and detached from the case-made, are intended to belong to it and are the same as therein referred to. (Railroad v. Wagner, 16 Kas. 335; Transportation Co. v. Palmer, supra; Shumaker v. O’Brien, supra.)
The judgment of the district court must be affirmed.
Valentine, J., concurring. | [
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Elliott, J.:
Kansas Pipeline Partnership (KPP) and Western Resources, Inc., (WRI) entered into natural gas . sales and transportation contracts. KPP submitted the contracts to the Kansas Corporation Commission (KCC) for approval pursuant to K.S.A. 1995 Supp. 66-117(a). WRI also requested KCC approval of the contracts and requested permission to pass contract costs through to its customers. Complicating matters, the KCC shifted a $5.9 million Linchpin Development cost item from another rate hearing into this KPP application. The other rate hearing is currently pending in this court as appeal No. 75,730.
On judicial review, KPP asserts that because the KCC failed to make a decision on these contracts and the development cost item within time limits established by KCC regulations and K.S.A. 1995 Supp. 66-117(b), the contracts and other requested relief became “deemed approved” by operation of law. This is the ultimate question for us to decide on the merits of this appeal.
We agree with KPP and reverse.
A brief description of the major participants is as follows:
KPP is a natural gas public utility and the applicant before the KCC.
The KCC is the state regulatory agency with the power and authority to supervise and control intrastate natural gas public utilities doing business in Kansas. See K.S.A. 66-101 et seq.
WRI is a class A natural gas public utility, authorized to deliver natural gas to customers in Kansas, and was the other signatory to the KPP contracts for which approval was sought. WRI also sought approval of the contracts, but has not appealed the matter to this court.
Williams Natural Gas Company (WNG) is also a natural gas public utility and is a marketplace competitor of KPP.
The Citizens’ Utility Ratepayer Board (CURB) is a state agency created to look out for the interests of individuals and small businesses in regulating public utilities.
The Federal Energy Regulatory Commission (FERC) is a federal agency regulating interstate pipelines which are within its exclusive jurisdiction.
The five contracts may be summarized thus: The contracts between KPP and WRI call for the sale and transportation of increased volumes of natural gas for deliveiy in Johnson, Wyandotte, Franklin, and Miami Counties in Kansas. Two of the three gas purchase contracts require KPP to deliver natural gas to the city gates at Ottawa, Paola, and Osawatomie for a term of 20 years. The third gas purchase contract calls for KPP to transport and sell natural gas to delivery points in Johnson and Wyandotte Counties for a term of 10 years.
The two transportation contracts call for the construction of a 24-mile pipeline spur to connect the Panhandle Eastern Pipeline Company’s facilities to those of WRI (the “Metcalf Contract”), and for KPP to provide natural gas to WRI for Johnson and Wyandotte Counties commencing in the year 2009 (the “2009 Contract”).
Jurisdiction
Without detailing the various dates on which various pleadings were filed, we have determined the jurisdictional filings by KPP are timely.
We have exclusive jurisdiction to review any action of the KCC arising from a rate hearing. K.S.A. 1995 Supp. 66-118a(b). In KPP’s original filing, it did not request a rate increase, but WRI did. The WRI docket was consolidated with the KPP filing. Additionally, the joinder of the Linchpin Project Development costs into this proceeding made it an action intimately related to a prior rate case. See MAPCO Intrastate Pipeline Co. v. Kansas Corporation Comm'n, 10 Kan. App. 2d 527, 530-31, 704 P.2d 989 (1985); In re Application of Southwestern Bell Tel. Co., 9 Kan. App. 2d 525, 529, 685 P.2d 304, rev. denied 236 Kan. 875 (1984).
The parties seem to agree that this case is closely enough connected to an underlying rate case to give us jurisdiction.
While we have determined we have jurisdiction under K.S.A. 1995 Supp. 66-118a(b), a question still remains whether the KCC order of November 22, 1995, is reviewable.
By applying the relevant considerations of Southwestern Bell, the KCC order is a final agency action entitling KPP to judicial review. The KCC’s denial of KPP’s arguments that the contracts were “deemed approved” due to the expiration of time is a final decision on this issue. It has a direct effect on KPP and presents a legal question for our review. Further, ruling on this issue does not disrupt the orderly process of adjudication in the administrative proceeding. The November 22, 1995, KCC order is final agency action subject to review.
In Southwestern Bell, we did not clearly state whether we were considering a final agency decision or a nonfinal agency decision ripe for interlocutory review. Either way, we have jurisdiction to consider KPFs appeal. See K.S.A. 77-607(b), K.S.A. 77-608.
Merits
In orders mailed April 21 and 24, 1995, the KCC suspended the effective dates of the contracts for 180 days of their filing on March 31,1995; the WRI rate request and the KPP contract dockets were consolidated. After numerous continuances, hearings were finally conducted between August 21, 1995, and September 6, 1995. At the close of the hearings, the KCC closed the record, ordered briefs filed by October 6, 1995, and took the dockets under advisement.
After briefs were filed but before the KCC issued a decision, FERC issued a draft order stating it had jurisdiction over KPP as an interstate pipeline. When FERC asserts jurisdiction, any state regulatory agency loses jurisdiction. As a result, the KCC staff on November 1, 1995, requested a stay pending a final order from FERC. KPP opposed the stay. The KCC issued a stay on November 3, 1995, and on November 22, 1995, issued an order superseding the earlier order, in which it found:
(1) Expiration of the initial 180-day time period set by the KCC did not cause the contracts to be deemed approved because that order was subject to further KCC orders and KPP did not object to the closing of the record as of October 6,1995 (beyond the 180-day period);
(2) The KCC order of November 3,1995, which was within the 240-day limitation of K.S.A. 1995 Supp. 66-117(b) was “probably a sufficient adjudication within tire 240-day period of time”;
(3) The KCC restarted the 240-day clock called for by K.S.A. 1995 Supp. 66-117(b) because the FERC finding of jurisdiction over KPP was a “substantial alteration of the facts” forming the basis for the KPP request; and
(4) “a continued stay at this juncture serves the public interest especially in light of the unbundling concerns raised by [sjtaff should FERC ultimately find it has jurisdiction” over KPP.
On December 8, 1995, several things occurred:
(1) FERC stayed its assertion of jurisdiction over KPP and clarified that KCC orders regarding KPP will remain in effect until FERC made its final rulings in the case.
(2) The KCC denied KPP’s request to reconsider its November 3, 1995, order because it was superseded by the KCC order of November 22, 1995.
(3) KPP requested reconsideration of the November 22 KCC order, which was denied on December 28, 1995.
(4) FERC issued an order clarifying a prior order. In this order, FERC stayed its assertion of jurisdiction over KPP until 60 days after an order on the merits of petitions for rehearing. FERC also ruled that, meanwhile, KPP could continue to provide services, collect rates on file with the KCC, and “undertake all other activities authorized by [FERC] and the KCC.” (Emphasis added.)
On appeal, our scope of review is set forth in K.S.A. 77-621, which codified principles repeatedly recognized by Kansas courts. See, e.g., Kansas Gas & Elec. Co. v. Kansas Corporation Comm’n, 239 Kan. 483, 497-98, 720 P.2d 1063 (1986); Midwest Gas Users Ass’n v. Kansas Corporation Commission, 3 Kan. App. 2d 376, 380-81, 595 P.2d 735, rev. denied 226 Kan. 792 (1979).
Further, we recognize that the cardinal rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. City of Wichita v. 200 South Broadway, 253 Kan. 434, 436, 855 P.2d 956 (1993).
As indicated earlier, at the close of the technical hearings, the KCC ordered the filing of briefs by October 6, 1995. KPP did not object to the October 6 date, although it was beyond the 180 days mentioned in the original suspension orders which expired on September 27, 1995. Accordingly, we shall concentrate our evaluation of this appeal on the 240-day limitation contained in K.S.A. 1995 Supp. 66-117(b).
The KCC has never suggested this case is not controlled by K.S.A. 1995 Supp. 66-117(b). Although the statute does not specifically list “gas purchase contracts” or “gas service agreements,” clearly these would fall within “practice pertaining to the service or rates of such public utility.” See K.S.A. 1995 Supp. 66-117(a).
CURB argues this case is governed by K.S.A. 1995 Supp. 66-1,203, which specifically applies to natural gas public utilities. Pursuant to that statute, every natural gas public utility regulated by the KCC must furnish the KCC with copies of all contracts between natural gas public utilities and all jurisdictional services to be rendered by the utility. WNG also urged this position during oral arguments. This statute applies specifically to natural gas public utilities regulated by the KCC, while K.S.A. 1995 Supp. 66-117(b) merely applies to all public utilities regulated by the KCC.
If a general and a specific statute both apply to a given situation, they should be read together and harmonized when possible. See Kansas Racing Management, Inc. v. Kansas Racing Comm’n, 244 Kan. 343, 353, 770 P.2d 423 (1989). The provisions of these two statutes can be read consistently.
K.S.A. 1995 Supp. 66-117(b) applies when any public utility is requesting a change in its rates or services that will have an impact on its customers. On the other hand, 66-1,203 requires a natural gas public utility to file copies of its rates and contracts, even if no changes are requested. Although the statutes overlap to some extent, they are not inconsistent and both are applicable.
At last, we reach the core question for our determination: Is KPP’s request for relief “deemed approved” by the KCC’s failure to issue a final order on the proposed changes within the 240-day period mandated by K.S.A. 1995 Supp. 66-117(b)? We answer in the affirmative.
Preliminarily, at oral argument, the KCC acknowledged that 66-117 is the only statute permitting suspension of an effective date, and CURB candidly, but reluctantly, agreed that 66-117 controls this appeal.
No one contests that the KCC’s authority is limited to that conferred by statute. Cities Service Gas Co. v. State Corporation Commission, 197 Kan. 338, 342, 416 P.2d 736 (1966); Kansas-Nebraska Natural Gas Co. v. Kansas Corporation Commission, 4 Kan. App. 2d 674, 675, 610 P.2d 121, rev. denied 228 Kan. 806 (1980). We must determine what now happens when the KCC fails to exercise the power conferred on it by statute.
K.S.A. 1995 Supp. 66-117(b) specifically provides that the KCC shall not delay the effective date of a proposed change in rate or in any practice pertaining to service for more than 240 days beyond the date the utility filed its application with the KCC.
The statute further provides that if the KCC has not issued a final order within those 240 days, then
“the schedule shall be deemed approved by the commission and the proposed change shall be effective immediately, except that (1) . . . any amendment to an application . . . which increases the amount sought by the ptiblic utility ... or substantially alters the facts used as a basis for requested change . . . shall, at the option of the commission, be deemed a new application and the 240-day period shall begin again from the date of the filing of the amendment, and (2) if hearings are in process before the commission ... on the last day of such 240-day period, such period shall be extended to the end of such hearings plus 20 days to allow the commission to prepare and issue its final order.” K.S.A. 1995 Supp. 66-117(b) (Emphasis added.)
No one contends the hearing was “in process before the commission” on the 240th day. The KCC closed the record and took the matter under advisement prior to expiration of the 240-day period. The question is whether either of the KCC orders of November 3 and 22, 1995, was a “final order” for purposes of 66-117(b). If so, both were entered within the 240-day clock. If not, we must decide whether the KCC acted properly in restarting the 240-day clock. We note that the KCC closed the record in these consolidated dockets at the conclusion of hearings on September 6, 1995. So far as we can determine, the KCC never reopened the record in these consolidated dockets. See K.A.R. 82-l-230(k), (1).
KPP filed its request for approval of the five contracts on March 31, 1995; the 240th day thereafter would be November 29, 1995. On November 2, FERC issued a draft order asserting jurisdiction over KPP, and on November 3 the KCC, sua sponte, determined the dockets should be stayed.
Then on November 22, 1995, the KCC issued another order affirming its order of November 3 and ordering these dockets be stayed until FERC took final, appealable action. This order also purported to restart the 240-day clock “(to the extent, if any, that it applies”) as of November 2, 1995. The KCC also stated its November 22 order superseded its November 3 order.
“Final order” has been defined as one which terminates the litigation on the merits and leaves nothing to be done except to enforce the result. Black’s Law Dictionary 630 (6th ed. 1990). In an administrative setting, a final order needs to be more than a mere procedural ruling, and “finality” should be interpreted in a pragmatic way. Southwestern Bell Tel. Co. v. Kansas Corporation Commission, 6 Kan. App. 2d 444, 452-53, 629 P.2d 1174, rev. denied 230 Kan. 819 (1981). See Oilfield Fluid Motor Carriers v. Kansas Corporation Comm’n, 234 Kan. 983, 988, 677 P.2d 982 (1984).
In the present case, the KCC orders enter a stay pending a decision by FERC. A “stay” is a suspension of a case. Black’s Law Dictionary 1413 (6th ed. 1990). By entering a stay, the KCC did not issue a final order in the proceeding.
Accordingly, this case presents a good example of when a KCC order can be final agency action under 77-607(b)(l), but not a final order under 66-117(b). The KCC’s decision rejecting KPP’s argument the contracts should be deemed approved (66-117[bj) is a final ruling on that statutory interpretation question. Nothing is unresolved, rendering it a final agency action under 77-607(b)(l). On the other hand, since the KCC has made no ruling regarding whether KPP’s contracts should be approved, it has not entered a final order on the proposed changes under 66-117(b).
As WNG argues, both times the “deemed approved” language appears in the statutes, the phrase refers to a “schedule.” “Schedule” is not defined in any statute or any KCC regulation which we have been able to discover, and the parties have not referred us to any such definition. The general definition of “schedule” would cover almost any filing, and pragmatically, we conclude the KPP contracts and other documents appended to its application meet the requirement of a schedule. See K.A.R. 82-1-231; Black’s Law Dictionary 1344 (6th ed. 1990).
The KPP contracts would change the practices pertaining to services made available by KPP for WRI’s customers. Accordingly, the changes set forth in the contracts fall under the provisions of 66-117(b) requiring KPP to request approval of the changes.
Before leaving this aspect of the case, we need to discuss the legislative history for 66-117. Dramatic changes were made to KCC procedures in 1980 by the enactment of S.B. 881. L. 1980, ch. 200. Minutes of hearings before the House Ways and Means Committee on the bill make clear the legislature was aware it was making significant changes. Minutes to a hearing on April 8, 1980, report that Senator Frank Gaines supported the bill which would permit a utility to automatically get the increase sought when the KCC did not act within a certain time frame. See House Ways and Means Committee, 1980 Session, Minutes of April 8, 1980, p. 1. Throughout the debate on S.B. 881, the KCC was given only 180 days to decide a case, but the final bill changed this to 240 days.
Most of the testimony before the Ways and Means Committee uses the term “utility rate cases” in discussing the bill, but the term is never defined. Further, “schedule” is not mentioned, except in a proposed draft of the bill. A main proponent of the bill was Southwestern Bell Telephone Company (SWB), which argued time limits were not new and had been adopted by numerous regulatory agencies across the country. Testimony of Bill Ewing (SWB), Attached to Minutes of House Ways & Means Committee, April 8, 1980.
Opposing S.B. 881 was Pete Loux, then chair of the KCC. He argued the states which had adopted time limits had much larger staffs or were responsible for regulating fewer companies. Chairman Loux also presented a staff position paper authored by Brian Moline, then general counsel of the KCC. Moline expressed concern that the language of S.B. 881 was very broad and cautioned that the bill “changes long established public policy of Kansas.” KCC Staff Position on S.B. 881, Attached to Minutes of House Ways & Means Committee, April 8, 1980, at 4.
Our review of the legislative history convinces us the purpose of S.B. 881 was to adopt time limits to remedy delays utilities had experienced with the KCC. Nothing in the legislative history sug gests the legislature intended to distinguish between “pure” rate cases and hybrid cases that could be considered “arising from a rate hearing” and thus appropriate for exclusive review by this court.
While S.B. 881 does not refer specifically to 66-118a, giving us exclusive jurisdiction over appeals arising from a rate hearing, the bill did amend 66-118g, setting the time limits in which we must decide such cases.
Nothing we have discovered suggests the time limits covered by S.B. 881 were intended to be different for rate cases under 66-117 as opposed to cases arising from a rate hearing pursuant to 66-118g. If a case arises from a rate hearing for purposes of 66-118g, legislative history suggests the time limits of 66-117(b) would also apply.
No one really contests that this case is one arising from a rate hearing. Under the express language of 66-117(b), the schedules/ contracts are deemed approved and the proposed changes take effect immediately unless a final order is issued by the KCC within 240 days of KPP’s application, or unless one of the exceptions applies.
Here, no final order was issued. As a result, our final question is whether the KCC had the statutory power and authority to restart the 240-day clock under the peculiar facts of this case.
K.S.A. 1995 Supp. 66-117(b) provides that after 240 days, the schedule is deemed approved except where an amendment to an application seeks an increase in the amount sought or substantially changes the facts used as a basis for the requested change.
The KCC interprets the statute broadly to include any change of the facts, regardless of whether an amendment to the application has been filed. We are unable to agree with the KCC’s interpretation.
Here, none of the parties filed any amendment to the application for proposed change that increased the amount sought by die KPP. Thus, the only way this proceeding could be extended is if the KCC were correct in finding (1) that FERC’s preliminary assertion of jurisdiction substantially altered the facts used as a basis for the requested change and (2) that this gave the KCC the option to deem a new application had been filed.
The KCC does not directly address the problem created by the failure of anyone to file an amendment to the application. CURB does not address the need for an amendment either; rather, it argues the KCC was in substantial compliance with the statutory mandate when it restarted the 240-day clock. WNG asserts that 66-117(b) simply does not apply. As previously held, the legislature did not distinguish between types of rate hearings in enacting S.B. 881. The legislature intended the time limits to apply to all hearings requesting a change, including those arising from a rate hearing.
KCC regulations provide for specific procedures to follow when a public utility wants to revise or amend its application or schedules. See K.A.R. 82-l-231(d). Further, Chairman Loux, in his letter to Mike Hayden, then chair of the House Ways and Means Committee, specifically voiced his concern whether an amendment by an applicant would restart the time clock. Loux Memo dated April 8, 1980, attached to House Ways and Means Committee Minutes.
FERC issued its initial order on November 2, 1995. Yet in its order of November 22, the KCC recognized it had continuing jurisdiction over KPP. FERC then stayed its earlier order and clarified that KPP was allowed to undertake all activities authorized by the KCC. The KCC did not issue its order denying KPP’s petition to reconsider until December 28, 1995.
The KCC argues that the FERC order asserting jurisdiction over KPP was a substantial alteration of the facts. An agency’s interpretation of a statute should be given deference, but when reviewing a question of law, we may substitute our judgment for that of the agency. See Hickey v. Kansas Corporation Comm’n, 244 Kan. 71, 76, 765 P.2d 1108 (1988).
We note that the KCC was aware as early as June 2, 1995, that FERC was considering asserting jurisdiction over KPP. Since the parties were aware of FERC’s interest in KPP for 5 months, we are unable to understand how FERC’s order of November 2,1995, is a substantial alteration of the facts used as a basis for the requested approval of contracts. The facts supporting the proposed changes remained the same although the status of the parties may well have been altered.
Simply put, the punctuation of the statute in light of the legislative history precludes the KCC’s interpretation of 66-117(b).
The legislature is presumed to understand the meaning of the words it uses and procedures it establishes. State Bank Commissioner v. Emery, 19 Kan. App. 2d 1063, 1071, 880 P.2d 783 (1994). And when a statute is clear and unambiguous, we must give effect to the legislature’s intent as expressed, rather than determine what the law should or should not be. Martindale v. Tenny, 250 Kan. 621, Syl. ¶ 2, 829 P.2d 561 (1992).
Finally, we must decide whether the statutory phrase “substantially alters the facts used as a basis for such requested change of rate” modifies “any amendment” or whether it applies to any change regardless of origin. Grammatically, we have no hesitancy in holding “amendment” is the controlling noun which is the subject of the modifying phrase.
An amendment makes a change or modification. Black’s Law Dictionary 81 (6th ed. 1990). It suggests an action by one of the parties to change, correct, or revise. No action was taken by KPP, WRI, or the KCC to change or modify the application which would trigger the provisions of 66-117(b).
Further review of the legislative history concerning the evolution of this provision supports our conclusion that an amendment is required.
The phrase “which amendment” contained in the original 1980 legislation, was deleted in 1988, as part of legislation that broadened application of the administrative procedures act. The legislation changed all time limits from being written out, to numerals (■i.e., two hundred forty, to 240). See L. 1988, ch. 356, § 225.
When the phrase under scrutiny is read to include “which amendment” the original intent of the legislature is clearer. The 1988 changes were the result of S.B. 334, which made some substantive changes to the administrative procedures act, but overall appears to be a technical bill to “clean up” the statutes by converting to numerals.
Ordinarily, a change in statutory language is presumed to result from a legislative purpose to change its effect. Schuhs v. Schuhs, 20 Kan. App. 2d 98, 99, 883 P.2d 1225 (1994). But this presumption is of little force if an amendment is adopted as part of a general, technical revision to a statute. Board of Education U.S.D. 512 v. Vic Regnier Builders, Inc., 231 Kan. 731, 736, 648 P.2d 1143 (1982).
We do not view the deletion of the phrase “which amendment” by the legislature in 1988 as a substantive change intended to modify the meaning of 66-117(b). Rather, the change was merely part of a larger bill seeking to bring consistency to statutes under the administrative procedures act.
At the time the original provisions imposing time limits on the KCC were adopted, the House Ways and Means Committee rejected without discussion a suggestion that would have given the KCC more flexibility in deciding cases under the new time limits. House Ways and Means Committee Minutes, May 2, 1980, p. 2.
Thus, the legislature was intent on forcing the KCC to act within prescribed time limits; if it does not, the proposed changes take effect. In 1980, the legislature recognized the increased burden the time limits would place on KCC staff. Senator Frank Gaines assured members of the House that adequate funds would be provided for the KCC “to adequately and efficiently carry out the provisions of this act” and further “gave his personal assurance that funds would be provided.” House Ways and Means Committee Meeting, May 2, 1980, p. 1.
CURB asks us not to abandon or ignore the “thousands” of hours of staff work and the “hundreds of thousands of dollars” of legal and technical analysis expended on the five contracts submitted for approval. But legislative histoiy makes clear that was precisely an anticipated result should the KCC fail to make a final decision within the time limits provided by K.S.A. 1995 Supp. 66-117(b).
The contracts and related requests contained in KPP’s consolidated KCC dockets must be deemed approved by operation of law.
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Pierron, J.:
The Riley County Board of Commissioners appeals the decision of the district court sustaining an administrative order of the Kansas State Board of Tax Appeals (BOTA) requiring them to refund certain mortgage registration taxes assessed against a mortgage upon property owned by Judith K. Zivanovic. We affirm.
On February 23, 1990, a mortgage (mortgage A) in the amount of $62,400 was recorded with the register of deeds. The mortgagors were Milan and Judith K. Zivanovic, and the mortgagee was the First Savings Bank (FSB). That same day, a mortgage registration fee of $156 was paid on mortgage A.
Also on that date, FSB assigned the mortgage to the Regional Investment Company (Regional). On March 6, 1990, the assignment of mortgage A to Regional was recorded with the register of deeds. On April 24,1991, Regional assigned mortgage A to Mellon Financial Services Corporation #9 (Mellon). This assignment was recorded with the register of deeds on June 21, 1992.
On August 13,1993, the Zivanovics acquired a second mortgage (mortgage B) in the amount of $65,250. The mortgagee was FSB and mortgage B was recorded with the register of deeds. On August 18, 1993, a $169.78 mortgage registration fee was paid on mortgage B. On this date, mortgage A was still held by Mellon. On November 29, 1993, mortgage A was released by Mellon.
The Zivanovics protested the payment of the registration fee on mortgage B for the refinancing of their house. BOTA ruled that K.S.A. 1993 Supp. 79-3102(d) did not require payment of a registration fee on the refinancing of mortgage A. Riley County’s petition for reconsideration was denied, and it subsequently filed a petition for review with the district court, which sustained B OTA’s decision.
Riley County argues that BOTA and the district court have erroneously applied K.S.A. 1993 Supp. 79-3102(d). On review, this court may find the agency action is invalid if the agency erroneously interpreted or applied the law. 537721 Ontario, Inc. v. Mays, 14 Kan. App. 2d 1, 2, 780 P.2d 1126, rev. denied 245 Kan. 785 (1989). “Interpretation of a statute is a question of law. An appellate court’s review of a question of law is unlimited.” Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995).
The Kansas Supreme Court has held that the mortgage registration fee is a tax. See Missouri Pacific Railroad Co. v. Deering, 184 Kan. 283, 286, 336 P.2d 482 (1959). Because the mortgage registration fee is a tax, an exemption from the fee must be strictly construed against the party who claims the exemption, and such party must bring itself clearly within the exemption provisions. Meadowlark Hill, Inc. v. Kearns, 211 Kan. 35, Syl. ¶ 2, 505. P.2d 1127 (1973).
Had the original lender held the mortgage and then refinanced, a registration fee would be owed only on any amount over that which was originally secured. See Fourth National Bank v. Hill, 181 Kan. 683, 695, 314 P.2d 312 (1957) (where a note is given merely in renewal of another and not in payment thereof, the renewal does not extinguish the original debt). Also, had the assignee holding mortgage A done the refinancing, there would be no fee owed except on the amount over what was originally secured, •Att’y Gen. Op. Nos. 93-82 and 92-211. Riley County argues the situation is different when refinancing is done with the original bank, but the original mortgage is held by an assignee. Riley County contends the exemption from the mortgage registration fee follows the mortgage and does not create an exemption for any prior holder of a mortgage.
K.S.A. 1993 Supp. 79-3102(d) states, in pertinent part:
“No registration fee whatsoever shall be paid, collected or required for or on . . . (3) any mortgage or other instrument upon that portion of the consideration stated in the mortgage tendered for filing which is verified by affidavit to be principal indebtedness covered or included in a previously recorded mortgage or other instrument with the same lender or their assigns upon which the registration fee herein provided for has been paid.” (Emphasis added.)
Riley County argues that this language, specifically the úse of the word “or” as opposed to “and,” dispels any notion that the exemption can be claimed by the prior holder of a mortgage. However, it appears the word “or” is used simply because the prior recorded mortgage cannot be held by both the original lender and its assigns, but only one or the other. Furthermore, because “same lender or their assigns” modifies “a previous recorded mortgage” and “any” modifies the second mortgage, the exemption appears to be avail able regardless of which institution currently holds the prior mortgage as long as the refinancing occurred within the chain of assignment.
Riley County points to two attorney general opinions, Nos. 93-82 and 93-156, which state that unless the assigned mortgage was reassigned to the original lender, the extension of new funds by the original lender constituted a new loan and not the “same indebtedness.” Riley County argues that at the time of the second mortgage, the Zivanovics owed nothing to FSB. BOTA concluded that because the Zivanovics remained indebted under mortgage A, the proceeds of their second loan from FSB are the same indebtedness. Riley County argues this conclusion fails to recognize that “indebtedness” is the duty to pay money to another. In the instant case, the Zivanovics’ duty of payment of mortgage A was to Mellon, while the refinancing occurred with FSB. Riley County argues that under BOTA’s interpretation, the word “same” in K.S.A. 1993 Supp. 79-3102(d)(3) becomes meaningless. Under BOTA’s interpretation, however, the refinancing would have to occur within the chain of the original lender and their assigns. Most important, the exemption of K.S.A. 1993 Supp. 79-3102(d) applies to “any mortgage” covering principal indebtedness covered in a previous recorded mortgage with the same lender or their assigns. This language appears to rule out the interpretation favored by Riley County and the attorney general.
Riley County argues that, if upheld, BOTA’s order would redefine basic property law to allow the exemption to become a perpetual, vested right of any lender that has, at one time, held a mortgage on a parcel of real property regardless of whether there exists an “assignment.” Similarly, Riley County argues that the rationale of the BOTA decision would exempt all “refinancings” regardless of lender or the existence of an assignment because the “indebtedness” was being substituted for another. The holding of BOTA and the district court seems limited, however, to the refinancing of a mortgage within the chain of assignment of the original mortgage.
In ruling that the exemption covered the Zivanovics’ situation, BOTA and the district court reasoned that Riley County’s inter pretation would create a “disparate treatment” of like taxpayers. Riley County responds that mortgage registration fees are paid by the mortgagee (lender) and not the mortgagor (borrower). See Misco Industries, Inc. v. Board of Sedgwick County Comm’rs, 235 Kan. 958, 961, 685 P.2d 866 (1984). Riley County argues that the taxpayers are not treated disparately when the responsibility to pay rests with the mortgagee. The district court noted, however, that the property owner is almost always responsible for the fee through the mortgage contract. Despite the fact that the tax is technically placed upon the mortgagee, the resulting reality does appear inequitable to homeowners who would randomly be assessed the fee depending on whether or not their bank has assigned their mortgage.
The purpose of the registration fee is to insure that the cost of recording mortgages is not paid by the public but by those who seek the protection that the public notice affords. Misco Industries, 235 Kan. at 961. The public notice affords protection to the holder of the mortgage because it prevents bona fide purchasers from buying the property without notice. Once a mortgage is recorded, all purchasers are put on actual or constructive notice of the mortgage regardless of who holds the mortgage. See Bank Western v. Henderson, 255 Kan. 343, 348, 874 P.2d 632 (1994) (“There is nothing in the statutes or case law which indicates that an assignment of a mortgage or the failure to record that assignment somehow affects the priority of the mortgage. ‘An assignment of a mortgage is merely a formal transfer of title to the instrument.’ ”) (quoting Middlekauff v. Bell, 111 Kan. 206, 207, 207 Pac. 184 [1922]). The language of Middlekauf contradicts the same indebtedness arguments made by Riley County and the attorney general. It is logical then that a new fee be charged only to that portion of the mortgage covering more than what had previously been covered in a prior mortgage, regardless of who holds the original mortgage. Only that amount would otherwise be unprotected.
Both the language of K.S.A. 1993 Supp. 79-3102(d) and the policy behind it support the decisions of the district court and BOTA.
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Rogg J.:
James P. Douglass appeals from the decision of the district court dismissing his breach of contract action against Kansas State University (KSU) for failure to state a claim upon which relief may be granted. Douglass contends the district court erred in finding that his exclusive remedy was under the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq.
Douglass was employed by the College of Veterinary Medicine at KSU as an assistant professor of surgery and medicine from May 27, 1984, until June 16, 1991. During that time, Douglass’ employment agreement was controlled by a series of 1-year contracts, the last of which was signed on June 29, 1990. In October 1989, Douglass submitted his tenure application. On February 20, 1990, Douglass was notified that his tenure application had been denied and that his terminal date of employment would be June 16, 1991.
Douglass sought administrative review of his tenure denial through the University Provost, Dr. James Coffman, but such review was denied on September 5, 1990. Douglass then requested a second administrative review, which was denied on September 21, 1990. On February 7, 1991, Douglass initiated grievance procedures with the General Faculty Grievance Board, claiming that KSU did not properly consider him for tenure. This grievance was denied, after a hearing, on May 15, 1991. On June 6, 1991, Jon Wefald, KSU President, received and accepted the recommendations of the grievance panel that no action be taken on behalf of Douglass.
On June 16, 1994, Douglass filed suit against KSU, alleging breach of contract. Douglass’ petition asked for relief only in the form of a declaratory judgment and a mandatory injunction compelling KSU to appoint him as a tenured professor.
KSU filed a motion to dismiss under K.S.A. 60-212(b)(6) for failure to state a claim upon which relief can be granted, which was granted by the district court. The district court found that Douglass’ “exclusive remedy was under the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 to 627, and the time for exercising such remedy has long since expired.”
The parties agree that the standard of this court’s review is set out in Knight v. Neodesha Police Dept., 5 Kan. App. 2d 472, 475, 620 P.2d 837 (1980): “ The question for determination is whether in the light most favorable to plaintiff, and with every doubt resolved in plaintiff’s favor, the petition states any valid claim for relief. Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim’ ” (quoting Weil & Associates v. Urban Renewal Agency, 206 Kan. 405, 413, 479 P.2d 875 [1971]).
Douglass argues that his petition presented a claim for breach of contract and that his action was well within the 5-year statute of limitations for that action. See K.S.A. 60-511(1).
KSU counters that the KJRA, which has a 30-day statute of limitations, provides Douglass’ exclusive remedy but bars his action due to delay.
Lindenman v. Umscheid, 255 Kan. 610, 875 P.2d 964 (1994); Fowles v. Kansas State Lottery, 254 Kan. 557, 867 P.2d 357 (1994); and Kansas Sunset Assocs. v. Kansas Dept. of Health & Environment, 16 Kan. App. 2d 1, 818 P.2d 797 (1991), are the three cases which lead to the rationale for deciding this case.
In Fowles, the Kansas Supreme Court ruled that plaintiff’s “sole action against the Lottery here is based on judicial review of an agency action under the [KJRA,] K.S.A. 77-601 et seq.; he may not maintain a separate action for breach of contract.” 254 Kan. at 565. Like the present case, the claim was pled as a breach of contract. The agency was empowered to grant Fowles all of the relief requested. This was also the case here. The agency action in both cases was reviewable under the KJRA.
Lindenman is distinguishable. In Lindenman, the action was pled in tort, and the agency had no power to grant the relief requested. It, therefore, was a separate action maintainable outside the exclusive provisions of the KJRA. See 255 Kan. at 616-20.
Sunset, like Fowles, is a case where the requested relief was relief which could be granted in reviewing the complained-of agency action. The KJRA was found to offer the exclusive remedy for the plaintiff. See 16 Kan. App. 2d at 4.
The declaratory and equitable relief asked for by Douglass is exactly the type of relief envisioned by. the KJRA. See K.S.A. 77-622. Under K.S.A 77-610, Lindenman, and Fowles, the ruling of the district court is proper. The KJRA is the exclusive remedy for all requested relief which an agency can grant under its authority. Only actionable claims which fall outside the authority of an agency to grant can support a separate action by an aggrieved party.
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|
Green, J.:
This appeal by Manor of Burlingame, Inc., (Manor) involves a claim of unfair competition. Manor is the owner of the “Santa Fe Trail Nursing Center,” an adult care facility located in Burlingame, Kansas. SHCC, Inc., (SHCC) is the owner of “Santa Fe Trail Health Care of Topeka.” This business is also an adult care facility. Manor unsuccessfully sought to enjoin SHCC from using the phrase “Santa Fe Trad” in the name of its facility. On appeal, Manor contends that the trial court erred in determining that SHCC’s use of that phrase was not unfair competition. We agree and reverse the judgment of the trial court.
Manor s facility has operated continuously using the phrase “Santa Fe Trail” as part of its name since 1973. In July 1994, SHCC purchased an adult care facility known as “Samaritan Home.” SHCC then changed the name of the facility to “Santa Fe Trail Health Care of Topeka.”
At trial, Manor introduced evidence that it had received a great deal of correspondence in the form of misdirected mail, telephone calls, and even medically sensitive and confidential reports, x-rays, and test results. Witnesses testified that this confusion began when SHCC changed the name of its facility. Manor also presented a witness who heard a television broadcast describing Kansas Health Department violations, for which “Santa Fe Trail Health Care” was fined. The witness believed that the article referred to “Santa Fe Trail Nursing Center.”
On the other hand, SHCC offered evidence from employees that no misdirected mail or correspondence intended for Manor had been delivered to its Topeka facility. Over Manor’s objection, SHCC testified that to remove the term “Santa Fe Trail” from its name would be expensive and detrimental to its company.
After adopting many of Manor’s findings of fact, the trial court concluded that Manor had not acquired a proprietary interest in the phrase “Santa Fe Trail” and that the phrase had not gained a secondary significance. The trial court found for SHCC and denied Manor’s request for an injunction. Manor timely appeals.
The ultimate question is whether the phrase “Santa Fe Trail” had acquired a secondary meaning with respect to Manor’s facility. A business name in which another has a proprietary interest or which has taken on a secondary meaning is entitled to protection under the common-law theory of unfair competition. Harp v. Appliance Mart, Inc., 16 Kan. App. 2d 696, 700, 827 P.2d 1209 (1992).
Whether the phrase “Santa Fe Trail” has acquired a secondary meaning is a question of law over which this court has unlimited review. When reviewing a question of law, this court is not bound by the determination of the trial court. Memorial Hospital Ass'n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986).
Few Kansas cases address the common-law theory of unfair competition. One, Milling Co. v. Flour Mills Co., 89 Kan. 855, 133 Pac. 542 (1913), which is cited by both parties and which the trial court relied upon in making its decision, is instructive. In Milling, a company operating under the name of “The Kansas Milling Company” (Milling Co.) sought to enjoin a second company, “The Kansas Flour Mills Company,” from the use of the similar name. Although Milling Co. had been in business for 6 years before the second company adopted its name, the Supreme Court found against Milling Co. Evaluating the character of both names, the court reasoned that the use of the term Kansas was merely geographical, describing the location of the business as well as much of its trade area. Similarly, the court determined that the words “milling” and “flour mills” were descriptive. 89 Kan. at 857. Based upon these factors, the court found that Milling Co. was not entitled to injunctive relief.
SHCC contends that Milling is analogous to the instant case. SHCC argues that the term “Santa Fe Trail” is geographical, generally describing the location of the businesses, and that the terms “Nursing Center” and “Health Care Center” merely describe the services the businesses provide.
On the other hand, Manor argues that this case bears a greater factual resemblance to American Fence Co. v. Gestes, 190 Kan. 393, 375 P.2d 775 (1962). In American, two fence companies, American Fence Company and All-American Fence Company, operated in the same trade area. All-American Fence Company argued that the word “American” was a geographical designation in which American Fence Company could not claim a proprietary interest. In rejecting this argument, the court stated:
“[T]he word ‘American’ on the facts in this case has no real relation to the business involved, and is, in our opinion, an arbitrary and fanciful word which has acquired a secondary meaning in connection with the appellees’ fence business.
“A distinction must be recognized between different geographical terms, according to their descriptive quality, the desirability of their use, and their connection with the subject to which they are applied. (Milling Co. v. Flour Mills Co., supra, p. 860.) Here the word ‘American’ is indefinite when translated in terms of the appellee’s business, its location and area of activity; and its classification as a descriptive or geographical term is unwarranted. The word ‘American’ is so broad that it is not descriptive of the business in any just sense as we view the facts in this case.” 190 Kan. at 400.
Although SHCC argues that the term “Santa Fe Trail” is geographical, the term is not used in its geographic context. It denotes neither the location of the business, nor its market or trade area. As the court emphasized in American, geographic terms bearing no geographic relation to a business are arbitrary and fanciful.
The American court concluded that American Fence Company, by its previous adoption of the name “American Fence Company” and its continued use for a period of years, acquired trade name rights to the name entitling the business to protection under the doctrine of unfair competition. The court stated: “The appellants’ use of the name ‘All-American Fence Company is likely to cause confusion in the trade, deceive the public, and substantially prejudice the rights of the appellee who is dealing in similar products and services in the same trade area.” 190 Kan. at 402-03.
Similarly, in the instant case, Manor showed that it had used the phrase “Santa Fe Trail” for 20 years before SHCC adopted the phrase. Manor offered evidence that it had advertised extensively in Topeka and the surrounding area. Significantly, Manor also showed that the public had indeed become confused between the two names through evidence of misdirected mail, phone calls, and other correspondence. Manor’s previous adoption of the name “Santa Fe Trail” and its continued use for a period of years entitles the company to protection under the doctrine of unfair competition.
Secondary Meaning
The trial court found, and SHCC argues, that Manor failed to prove that the phrase “Santa Fe Trail” had acquired a secondary meaning because Manor did not offer evidence that customers were confused by the similar names. SHCC argued, and the trial court agreed, that Manor was required to show that actual customers, who intended to choose Manor’s facility, had mistakenly chosen SHCC’s facility. SHCC fails to cite any Kansas cases or federal cases interpreting Kansas law requiring this type of evidence. Our research indicates that the evidence required to prove unfair competition varies considerably from one jurisdiction to another. In 2 McCarthy on Trademarks and Unfair Competition § 15.10[3] (3d ed. 1996), the author emphasizes that secondary meaning may be proven by both direct and circumstantial evidence. The author describes the evidence traditionally accepted by the courts as follows:
“Direct evidence means the actual testimony of buyers as to their state of mind. As explained below in detail, such direct evidence may consist of either the testimony of random buyers in court or ‘quasi-direct evidence’ by means of consumer surveys, professionally conducted. In fact, the Ninth Circuit has gone so far as to state that: ’An expert survey of purchasers can provide the most persuasive evidence of secondaiy meaning.’
“The other traditional manner of proving secondary meaning is by circumstantial evidence of the seller’s efforts in advertising the mark throughout a wide group of prospective buyers. Such circumstantial evidence can consist of evidence of the size of the seller, the number of actual sales made, large amounts spent in promotion and advertising, the scope of publicity given the mark, and any similar evidence showing wide exposure of the buyer class to the mark in question.
“As listed by the Seventh Circuit, courts usually consider the following factors in determining whether a term has acquired secondary meaning:
Direct Evidence:
a. Direct consumer testimony
b. Consumer survey
Circumstantial Evidence:
c. Exclusivity, length and manner of use
d. Amount and manner of advertising
e. Amount of sales and number of customers
f. Established place in the market
g. Proof of intentional copying.”
Although Manor did not present survey results or other direct evidence, it presented many of the suggested forms of circumstantial evidence. In its findings of fact and conclusions of law, the trial court stated that it considered the case of Milling in reaching its decision. In Milling, the Supreme Court stated: “The degree to which the similarity of names will naturally tend to deceive a reasonably intelligent and careful person is undoubtedly the vital question on which the controversy turns. ” 89 Kan at 859; see American, 190 Kan. at 398. In the instant case, doctors and hospitals repeatedly mailed and faxed important, and sometimes confidential, information to the wrong organization. Manor demonstrated through circumstantial evidence that it had used the phrase “Santa Fe Trail” in connection with its nursing center for years, it had advertised extensively, and a number of people had confused the two businesses. This evidence, which was comparable to thát' accepted in both Milling and American; demonstrated that the phrase “Santa Fe Trail” had acquired a secondary meaning in the mind of the public. • ■ ' ''
Although the trial court considered SHCC’s evidence that it would suffer financial hardship if it had to change its name, this evidence was irrelevant. In Middlebrook v. Winterscheidt, 118 Kan. 731, 236 Pac. 825 (1925), the trial court enjoined “The Golden Rule Mercantile Company,” a newly created corporation, from using the trade name of an older competing business in another town, but the court allowed the new corporation to keep some of the signs it had already erected because they would be expensive to replace. Our Supreme Court, however, modified the judgment to prohibit any use of the name and reasoned that “the protection of the plaintiff from unfair competition required the discontinuance altogether by the defendants of the use of the name ‘Golden Rule Store,’ the name adopted by the plaintiff. The fact that the signs were expensive to replace [was] not a sufficient reason for permitting their retention . . . .” 118 Kan. at 732. The Middlebrook court’s reasoning is applicable here. Consequently, SHCC’s potential financial hardship is immaterial to whether Manor is entitled to injunctive relief or has established a common-law claim of unfair competition.
Because Kansas courts have shown diligence in protecting established businesses from unfair competition, the American Fence court stated:
“ ‘[I]t is the duty of a subsequent trader, coming into an established trade, not to dress up his goods or market them in such a way as to cause confusion between his goods or business and that of a prior trader. [Citation omitted.]’
“ ‘The argument in these cases is a simple one: Where the defendant has so dressed his goods that they may be mistaken for the goods of the complainant his motive in so doing is either honest or dishonest; if honest, he should stop voluntarily; and, if dishonest, he should be compelled to stop.’ [Citation omitted.]” 190 Kan. at 397-98.
Manor established that the phrase “Santa Fe Trail” had acquired a secondary significance in the mind of the public with regard to its nursing center. Based upon Kansas precedent, SHCC’s adoption of the phrase “Santa Fe Trail” in an identical business and the resulting confusion is sufficient to establish a common-law claim of unfair competition.
Reversed and remanded with directions to grant Manor’s request for injunctive relief, enjoining SHCC from using the phrase “Santa Fe Trail” in the name of its facility. | [
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Royse, J.:
James Knoff appeals the district court’s determination that he is a habitual violator as defined by K.S.A. 8-285. He contends he did not have three convictions within the required period, because he entered into a diversion agreement more than 5 years before his last qualifying DUI conviction.
This appeal presents a question of first impression. At issue is the construction of K.S.A. 8-285(b), which contains a definition of “conviction” for purposes of the Habitual Violator Act.
A 'habitual violator” is any person who, within the immediately preceding 5 years, has been convicted in this or any other state three or more times of certain listed offenses. K.S.A. 8-285(a). One of the offenses listed is driving a motor vehicle while under the influence of drugs or alcohol, contrary to K.S.A. 1995 Supp. 8-1567. K.S.A. 8-285(a)(2).
K.S.A. 8-285(b) defines “conviction”:
“For the purpose of subsection (a)(2) [driving under the influence], in addition to the definition of ‘conviction’ otherwise provided by law, conviction includes, but is not limited to, a diversion agreement entered into in lieu of further criminal proceedings, or a plea of nolo contendere, on a complaint, indictment, information, citation or notice to appear alleging a violation of K.S.A. 8-1567 and amendments thereto. . . .”
The State brought this action to have Knoff declared a habitual violator. The parties stipulated to Knoff’s driving record:
January 6, 1988 Knoff entered into diversion agreement on DUI charge.
May 11, 1989 After diversion was revoked, Knoff pled nolo contendere to DUI charge.
September 15, 1989 Knoff pled nolo contendere to second DUI charge.
February 7, 1994 Knoff pled nolo contendere to third DUI charge.
Based on the last three events in this record, the district court determined that Knoff was a habitual violator.
Knoff argues his first conviction for purposes of K.S.A. 8-285 occurred on January 6, 1988, the date he entered into a diversion agreement. That date is more than 5 years before his latest qualifying conviction on February 7, 1994. The State argued in the district court that only a successful diversion may be considered a conviction; if diversion is not completed successfully, then the later finding of guilt is the conviction. The State later adopted the position that where a person fails to complete a diversion program successfully, then either the diversion or a later plea of nolo contendere in the same case may be considered a conviction at the discretion of the State. Thus, the State argues Knoff was properly determined to be a habitual violator because he had convictions on May 11, 1989, September 15, 1989, and February 7, 1994.
Interpretation of K.S.A. 8-285(b) is a question of law. Appellate review of questions of law is unlimited. State v. Donlay, 253 Kan. 132, 133-34, 853 P.2d 680 (1993).
Knoff relies on State v. Booze, 238 Kan. 551, 712 P.2d 1253 (1986). In Booze, the Supreme Court examined the definition of “conviction” in 8-1567, a “self-contained habitual criminal act.” 238 Kan. at 552. “Conviction” is defined in 8-1567 as follows:
“(k) For the purpose of determining whether a conviction is a first, second, third or subsequent conviction in sentencing under this section:
“(1) [the term] ‘[c]onviction’ includes being convicted of a violation of this section or entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging a violation of this section.”
Booze was charged with DUI on July 3, 1983, and entered into a diversion agreement on the DUI on December 23,1983. He was arrested on a second DUI on November 30, 1984, approximately 1 month before the end of his diversion. The State subsequently filed a motion to terminate the diversion and reinstate prosecution on Booze’s first DUI. Booze pled guilty to both DUI charges on February 21,1985. The district court sentenced Booze as a second offender on the second DUI and Booze appealed. Booze argued that this sequence — offense, offense, conviction, conviction — violated the sequential requirement for enhancement of sentences as set forth in State v. Osoba, 234 Kan. 443, 444, 672 P.2d 1098 (1983): “ ‘ “[F]or enhancement of sentence of a defendant as a second offender [under 8-1567], the previous conviction must have occurred prior to commission of the principal offense.” ’ ” Booze, 238 Kan. at 553.
The State, taking a position in Booze opposite to the one it argues here, argued there was a conviction on the first offense at the moment the defendant entered into the diversion agreement. 238 Kan. at-553.
The Supreme Court observed that K.S.A. 1983 Supp. 8-1567(i) [now 8-1567(k)(l)] “clearly states that ‘entering’ into a diversion agreement is a conviction for purposes of enhancing sentence. If the drafters had intended that diversion would operate as a conviction only upon its completion, they could easily have said so.” Booze, 238 Kan. at 555.
The Supreme Court in Booze also examined legislative intent:
“The only real difference between diversion and being sentenced as a first offender (K.S.A. 1983 Supp. 8-1567[c]) is the incarceration. Under 22-2909(c), the defendant must pay the minimum statutory fine for a first offense or complete a set number of hours of community service, and he must enroll in and complete an alcohol and drug safety program. Moreover, the purpose behind the first offender sentence and the requirements of diversion are the same — both seek to rehabilitate.
“This court, in Clevenger, discussed the public policy behind considering a diversion a ‘conviction’ for purposes of sentence enhancement and stated: ‘The intent of allowing diversion for the first DUI offense was the legislature’s recognition that although it had done away with plea bargaining, it deemed it appropriate to offer a less harsh option for a first offense. If, however, a defendant commits a second offense, there are no breaks. The purpose of sentence enhancement is to punish those who violate the law repeatedly. See State v. Lohrbach, 217 Kan. 588, 591, 538 P.2d 678 (1975). A repeated violator of the DUI law should be subject to sentence enhancement on a second offense regardless of whether the individual went to jail or sought diversion for the first offense.’ 235 Kan. at 868.
“In view of the nature of diversion in DUI cases, and the public policy behind sentence enhancement in DUI cases, it is apparent that the legislature must have intended that once a defendant has entered into a diversion agreement, he will be considered as having been ‘convicted’ for purposes of enhancing his sentence if he commits another DUI offense. There is no reason to presume the legislature intended that only a person who has successfully completed diversion should be treated as a repeat offender if he is again charged with DUI.” 238 Kan. at 555-56.
Thus, relying on the plain meaning of the statute and legislative intent, the Supreme Court concluded that for purposes of sentencing under 8-1567, “a diversion agreement is considered a conviction when it is first entered into. K.S.A. 1993 Supp. 8-1567 does not require the diversion agreement to be completed and the charges dismissed with prejudice before it is considered a conviction for purposes of sentencing.” 238 Kan. 551, Syl. ¶ 2.
The State in this case does not attempt to distinguish Booze directly, although it does argue that 8-285 is civil in nature and subject to different rules of statutory construction than those applicable to 8-1567. That argument is not persuasive. First, Booze noted that the rule of strict construction applicable to penal statutes “simply means that ordinary words are to be given their ordinary meanings.” 238 Kan. at 555. A penal 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. [Citations omitted.]’ ” State v. Kitzman, 240 Kan. 191, 193, 727 P.2d 491 (1986). Second, Booze explicitly compared 8-285 and 8-1567: “[T]he diversion is considered a ‘conviction’ only for purposes of sentence enhancement pursuant to 8-1567, and for purposes of determining whether [the defendant] is a ‘habitual violator’ pursuant to K.S.A. 8-285.” 238 Kan. at 557. Third, this court has previously relied on a decision interpreting 8-1567 to interpret 8-285(b). See State v. Underwood, 10 Kan. App. 2d 116, 122, 693 P.2d 1205 (1985).
The State makes no claim there is any significance in the fact that 8-1567(k)(l) refers to “entering into a diversion agreement in lieu of further criminal proceedings,” whereas 8-285(b) uses “a diversion agreement entered into in lieu of further criminal proceedings.” (Emphasis added.) To the contrary, it is well recognized that in order to construe one part of a statute, it is permissible to look at other parts of it. State v. Gonzales, 255 Kan. 243, 248, 874 P.2d 612 (1994). These provisions were both enacted as parts of the same act. L. 1982, ch. 144, §§ 2(b) and 5(i); see State v. Reves, 233 Kan. 972, 974, 666 P.2d 1190 (1983). The fact that the legislature used different forms of the same verb in the two statutes does not demonstrate the legislature intended different meanings for the two provisions.
Implicit in the State’s position in this case is the assumption that the legislature intended that a person entering into a diversion agreement could face two possible conviction dates. The State cites no authority for this assumption, beyond noting the obvious legislative intent that diversion agreements would not be used to escape the Habitual Violator Act. That intent is served by treating a diversion as a conviction when it is entered into. Moreover, the either/or approach urged by the State was an option available to the Supreme Court in Booze, but the court did not embrace it.
In summaiy, the reasoning and result of Booze are both applicable in this case. The plain meaning of 8-285 is that conviction includes a diversion agreement for purposes of the Habitual Violator Act. If the legislature had intended that diversion would operate as a conviction only upon its successful completion, it could easily have said so.
An examination of legislative intent produces the same result. Both 8-285 and 8-1567 share the purpose of punishing repeat offenders. See K.S.A. 8-284; State v. Clevenger, 235 Kan. 864, 868, 683 P.2d 1272 (1984); State v. Walden, 15 Kan. App. 2d 139, 142, 803 P.2d 1054 (1990). There is no justification for giving a different construction to two statutes sharing a common purpose and common language. Moreover, the legislature has had ample opportunity to revise its definition of “conviction” in either or both of these statues following the Booze decision and has not done so. See City of Lenexa v. Board of Johnson County Comm’rs, 237 Kan. 782, 786, 703 P.2d 800 (1985) (presumption that in amending statute, legislature acted with full knowledge of judicial decisions concéming the statute); State v. Osoba, 234 Kan. at 444-45.
For all the foregoing reasons, we conclude that for purposes of determining whether a person is a habitual violator under K.S.A. 8-285, a diversion agreement is considered a conviction when it is first entered into.
Reversed. | [
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Pierron, J.:
Clem A. J. and Pauline Zerr challenge an order confirming the sale of their real estate at a sheriff’s sale after Farm Credit Bank of Wichita executed on a deficiency judgment. The Zerrs also argue the district court set an improper redemption period and failed to consider the appraised value of the real estate in confirming the sale. We affirm in part, reverse in part, and remand for further proceedings.
The pertinent facts are not in dispute. In 1982, the Zerrs borrowed $620,000 from Farm Credit Bank of Wichita (FCB) and granted a mortgage on approximately 2,180 acres of farm land as security. As did many farmers, the Zerrs encountered financial difficulties and defaulted on the loan. On July 15,1992, FCB filed its petition in district court seeking judgment for the amount owed and foreclosure of the mortgage securing the note. The Zerrs answered the petition, admitting default under the terms of the note and mortgage and requesting that the mortgaged property be sold subject to appraisement.
On September 4, 1992, FCB filed a motion for summary judgment. However, the Zerrs subsequently filed a Chapter 12 bankruptcy, leaving this matter dormant until 1994. On April 4, 1994, the bankruptcy court dismissed the Zerrs’ bankruptcy, and on May 10, 1994, FCB filed a motion for judgment on the pleadings as well as summary judgment. The district court granted FCB’s motion and entered a journal entry of foreclosure on June 16, 1994. The amount due and owing on the note and mortgage was $864,858.28, plus interest and the costs of the action.
Pursuant to the foreclosure action, the 2,180 acres of real estate was sold at a sheriff’s sale for a total of $632,000. FCB successfully bid on all the property. The district court confirmed the sale and entered a deficiency judgment in favor of FCB for $257,948.25. To help satisfy its deficiency, FCB executed on four additional tracts of real estate owned by the Zerrs. The sheriff offered the four tracts for sale on September 23, 1994.
Prior to the sale, FCB filed a motion to establish redemption rights, and the Zerrs similarly filed a motion for a sale subject to appraisement and to establish redemption rights. The district court found that K.S.A. 60-2414(m) was applicable and set a redemption period of 3 months from the date of the sale. Three tracts of real estate were sold at a sheriff’s sale on August 29, 1994.
On October 10,1994, the district court heard FCB’s motion for confirmation of the second sale. The appraiser for the Zerrs testified that one of the tracts had a value of $199,000 and that FCB had successfully bid the property at $170,200. On November 9, 1994, the district court filed its order confirming the sheriff’s sale and found that a deficiency judgment of $23,416.85 still remained. The fourth tract of land, which was not sold at the sale, was later republished and sold at a subsequent sheriff’s sale.
The Zerrs contend the district court erred in setting a redemption period of 3 months. They argue the provisions of K.S.A. 60-2414(m) establishing a 3-month redemption period are not applicable.
The statutory right of redemption is a judgment debtor’s privilege to regain property lost by sale under process by permitting purchase at the price at which the property was sold. Southwest State Bank v. Quinn, 198 Kan. 359, Syl. ¶ 2, 424 P.2d 620 (1967). Kansas case law on redemptive rights shows that the right of redemption is controlled by statute. See Federal Land Bank v. Hart, 157 Kan. 664, 143 P.2d 649 (1943); Piatt v. Flaherty, 96 Kan. 42, 149 Pac. 734 (1915); Federal Land Bank of Wichita v. Brown, 15 Kan. App. 2d 302, 305, 807 P.2d 702, rev. denied 248 Kan. 995 (1991) (ability of holder of first mortgage to redeem property from a successful purchaser at sale); Federal Savings & Loan Ins. Corp. v. Treaster, 13 Kan. App. 2d 305, 770 P.2d 481 (1989) (court’s discretion in extending the redemption period).
Our standard of review is clearly one of statutory interpretation. “Interpretation of a statute is a question of law. An appellate court’s review of a question of law is unlimited.” Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995).
The general rule is that a defendant owner is entitled to redeem real property sold under execution or order of sale within 12 months after the date of the sale. K.S.A. 60-2414(a) provides in applicable part:
“Except as stated in subsection (m) and as otherwise provided by law, the defendant owner may redeem any real property sold under execution, special execution or order of sale, at any time within 12 months from the day of sale, for the amount paid by the current holder of the certificate of purchase, including expenses incurred by the holder of the certificate of pinchase in accordance with subsection (d), together with interest at the rate provided for in subsection (e)(i) of K.S.A. 16-204, and amendments thereto, costs and taxes to the date of redemption.”
An exception to the 12-month redemption period is found in K.S.A. 60-2414(m). Even in early Kansas redemption law, one who had paid less than Vs of an agreed purchase price for realty was only entitled to a 6-month redemption period in a foreclosure action. G. S. 1909, § 6098. See Ruf v. Grimes, 104 Kan. 335, Syl. ¶ 4, 179 P. 378 (1919); Hines v. Kays, 93 Kan. 209, 211, 144 Pac. 240 (1914); Neef v. Harrell, 82 Kan. 554, 109 Pac. 188 (1910). This 6-month redemption period was recently embodied in the 1992 Kansas Legislature’s amendment to 60-2414. L. 1992, ch. 320, § 1. These amendments became effective July 1, 1992.
In 1994, the Kansas Legislature again amended 60-2414(m), reducing the redemption period in specified situations from 6 months to 3 months. L. 1994, ch. 230 § 1. The 1994 amendments became effective July 1, 1994. K.S.A. 60-2414(m) currently provides:
“In the event a default occurs in the conditions of the mortgage or instrument of the most senior lien foreclosed before Vs of the original indebtedness secured by the mortgage or lien has been paid, the court shall order a redemption period of three months. If, after proper showing, the court finds that the total outstanding amount of all mortgages or hens is less than % of the market value of the property, the court shall order a redemption period of 12 months. If the court finds after a hearing with not less than 21 days’ notice to all parties, that the defendant owner has involuntarily lost such owner’s primary source of income after the date of the foreclosure sale and prior to expiration of a three-month period of redemption, the court may extend the three-month period of redemption an additional three months. If the court orders a redemption period of six months or less, the right of the defendant owner or successors and assigns to redeem is exclusive for the first two months of the redemption period. This subsection shall not apply in the event redemption rights have been shortened, waived or terminated pursuant' to subsection (a).”
The question before the court is whether the present case falls within this exception. Does the reduced redemption period in the above-cited subsection apply to real property that has been executed upon in order to satisfy a deficiency judgment? The answer is no.
In the case at bar, FCB foreclosed the Zerrs’ mortgage and note and sold all the property at the sheriff’s sale. The Zerrs had not paid Vz of the original indebtedness on this mortgage and pursuant to K.S.A. 1992 Supp. 60-2414(m), the district court correctly granted a 6-month period of redemption. After the sale of all the mortgaged property, a deficiency of approximately $258,000 still remained. The Zerrs argue that at this time FCB was nothing more than a unsecured creditor with a deficiency judgment. FCB then executed on four other tracts of real estate, and the district court decided pursuant to K.S.A. 60-2414(m) that the Zerrs would only have 3 months after the sheriff’s sale in which to redeem the property.
The Zerrs raise two arguments as to why the 3-month redemption period is inapplicable to their case. First, the sheriff’s sale for the deficiency judgment was not predicated upon a default in the condition of a “mortgage or instrument” in the context of K.S.A. 60-2414(m), but was rather a simple monetary judgment. Second, they contend that even if the deficiency judgment is somehow considered an extension of the note and mortgage, FCB has already received $632,000 by selling the mortgaged property and thus Vz of the original indebtedness has been paid.
The Zerrs also contend the case at bar was not a situation contemplated by the legislature in providing the 3-month exception. They believe the amendments were designed to address a perceived prejudice to mortgage lenders in the existing redemption law by allowing a shorter period in situations where Vz of the original indebtedness has not yet been paid. The scales balance in favor of the creditors instead of the borrowers in such a situation. The Zerrs submit the foregoing considerations are illogically applied to the present situation. FCB had already obtained full benefit of the mortgaged property. The property sold to satisfy the deficiency judgment was simply a nonexempt asset of the judgment debtor. The Zerrs argue that FCB had no contractual rights in the property, that “equity” in this situation is inapplicable, and that they had 100% equity in the real estate sold at the sale.
FCB argues that the Zerrs failed to pay the deficiency judgment within the statutory time frame and, as a result, it executed against unencumbered real estate. FCB claims it is the default on the deficiency judgment that gives rise to the reduced redemption period under K.S.A. 60-2414(m). Therefore, the lien referred to in K.S.A. 60-2414(m) is the deficiency judgment entered on August 19, 1994, and the district court correctly set a 3-month redemption period because Vs of thát indebtedness had clearly not been paid.
We are asked to construe an exception to the general rule of a 12-month redemption period. We are guided by the following established principles. “ ‘It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained/ [Citation omitted].” City of Wichita v. 200 South Broadway, 253 Kan. 434, 436, 855 P.2d 956 (1993). It must be remembered that ordinarily a strict or narrow interpretation is applied to statutory exceptions. Furthermore, in construing a statute, any doubt should be resolved against the exception, and anyone claiming to be relieved from the statute’s operation must establish that he or she comes within the exception. Broadhurst Foundation v. New Hope Baptist Society, 194 Kan. 40, 44, 397 P.2d 360 (1964).
A mortgagor’s redemptive rights are zealously guarded in Kansas. See Quinn, 198 Kan. 359, Syl. ¶ 2; Broadhurst Foundation v. New Hope Baptist Society, 194 Kan. at 42-43. The court in Mid Kansas Fed’l Savings & Loan Ass’n v. Zimmer, 12 Kan. App. 2d 735, 738, 755 P.2d 1352 (1988), stated that “[p]ublic policy strongly supports the right of redemption.” A statutory provision for the redemption of real property from an execution sale should, as a statute remedial in character, be given a broad and liberal construction, so as to effectuate its purpose and encourage redemption. 30 Am. Jur. 2d, Executions and Enforcement of Judgments § 435, p. 284. The purpose of the redemption statute is to prevent hardship and inequity. Needham v. Young, 205 Kan. 603, 606, 470 P.2d 762 (1970).
When the district court granted FCB a deficiency judgment, FCB automatically received a judgment lien against all of the Zerrs’ real property. K.S.A. 60-2202(a) provides that any judgment rendered by the district courts of Kansas in an action commenced under Chapter 60 of the Kansas Statutes Annotated shall be a Hen on the real estate of the judgment debtor within the county in which judgment is rendered. See Astle, Collecting Judgments in Kansas, pp. 82-84 (1992). We believe that an execution on property pursuant to this lien is subject to the general 12-month redemption period and does not fall within the purview of the 3-month exception under K.S.A. 60-2414(m).
The language of K.S.A. 60-2414(m) is clear and unambiguous. There are three factors that we believe demonstrate the intent of the legislature and at the same time preclude this case from application of the exception. First, the statute states “[i]n the event of a default.” Contrary to FCB’s statement, no “default” has occurred with regard to the deficiency judgment. Furthermore, there is no statutory time frame in which the Zerrs were required to pay the deficiency judgment. The facts of this case demonstrate that virtually no time expired from the time the district court entered the deficiency judgment on August 19,1994, and FCB’s execution on the four tracts of real estate on August 22, 1994.
Second, a default has to occur “in the conditions of the mortgage or instrument.” There were no conditions which the Zerrs had to abide by under the deficiency judgment. Last, the original indebtedness of the deficiency judgment was not “secured” by a mortgage or hen. It is obvious from the language of K.S.A. 60-2414(m) that the reduced redemption period was intended to apply in situations of collateral used to secure a loan or a mortgage, not executions upon real property to satisfy a deficiency judgment.
It appears die legislative intent of a shortened redemption period under K.S.A. 60-2414(m) is to prevent equity skimming. See K.S.A. 60-1101 and K.S.A. 21-4410. A shortened redemption period theoretically helps deter the practice of skimming by shortening the time period an equiteer has control of the property. The legislature heard ample testimony before amending 60-2414(m) in 1994 that real estate lenders face substantial problems when re covering property that has been rented by an equiteer. Many times the property is in such poor condition that substantial improvements must be made before trying to resell it. This occurs because many equiteers have no real vested interest in seeing that the property is maintained once it is rented. The equiteers also do not pay property taxes, and the lenders are essentially forced into paying the property taxes in order to avoid a state-imposed tax lien on the property. Senate Committee on Judiciaiy, March 16,1994, attachments 5-13, H.B. 2992.
Kansas case law and other supporting authority recognize the general 12-month redemption period in cases involving executions on a judgment. In Ropfogel v. Enegren, 7 Kan. App. 2d 644, 646 P.2d 1138 (1982), the plaintiff obtained a $250,000 judgment against the defendants, and the court granted a 12-month redemption period on a number of parcels of land which were sold pursuant to writs of execution. In Anspacher & Assocs., Inc. v. Leslie, 5 Kan. App. 2d 348, 616 P.2d 297 (1980), the district court set a 12-monfh redemption period for property sold at an execution sale.
The Zerrs should have been granted a 12-month period in which to redeem the property sold to satisfy the deficiency judgment. Our decision in no way hampers the ability of the holder of a deficiency judgment to obtain a shortened redemption period or extinguish the redemption period where the proper showing is made under K.S.A. 60-2414(a) that the property is abandoned or is not occupied in good faith. We must reverse and remand to the district court for further proceedings consistent with this opinion. We note other issues such as the disposition of the proceeds of a crop need to be addressed at the district court level.
Next, the Zerrs argue that at the confirmation hearing the district court erred in not considering the appraised value of one of the tracts of land sold at the sheriff’s sale. It appears thát they argue the court abused its discretion by not crediting them with the appraised value of their property or at least deferring confirmation of the sale until after a hearing to determine the value of the property.
In contrast, FCB argues that even considering the evidence in the light most favorable to the Zerrs, there was only about a 15% difference in the value of the property in question. FCB directs the court’s attention to the appraiser’s testimony that the sales at a sheriff’s sale are normally depressed values. However, the appraiser stated that one could get more than the value of the property, but normally that is not the case.
. We are required to determine whether, under these facts and circumstances, the trial court abused its discretion by confirming the sale. “Judicial discretion is abused when judicial action is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only where no reasonable [person] would take the view adopted by the trial court.” Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172 (1973). This court has recently reiterated that under K.S.A. 60-2415, the district court has the discretion to refuse to confirm a sheriff’s sale if it finds the bid substantially inadequate, but its decision of whether or not to confirm must be supported by the record. See Olathe Bank v. Mann, 17 Kan. App. 2d 112, 115, 834 P.2d 1365 (1992), aff’d 252 Kan. 351, 845 P.2d 639 (1993).
K.S.A. 60-2415 governs the confirmation of a sheriff’s sale and governs this specific issue. It provides in pertinent part:
“The court may decline to confirm the sale where the bid is substantially inadequate, or in ordering a sale or a resale, may, in its discretion, if conditions or circumstances warrant and after a proper hearing, fix a minimum or upset price at which the property must be bid in if the sale is to be confirmed; or the court may, upon application for the confirmation of the sale, if it has not theretofore fixed an upset price, conduct a hearing to establish the value of the property, and as a condition to confirmation require the fair value of the property be credited upon the judgment, interest, taxes and costs. A sale for the full amount of the judgment, taxes, interest and costs shall be deemed adequate.” K.S.A. 60-2415(b).
The Zerrs take issue with the real estate described as the North 468 acres of Section 5, Township 13 South, Range 28 West of the 6fh P.M. The Zerrs provided testimony at the confirmation hearing from an appraiser that the market value of this property was $199,000, approximately $29,000 more than what FCB bid and ultimately paid for the property at the sheriff’s sale. They argue that in the interest of public policy, the manipulation that can occur at a sheriff’s sale requires the district court to diligently protect the rights of the borrowers by insuring that fair value of the property is obtained. Citing K.S.A. 60-2415(b), the Zerrs argue the district court failed to take any of three statutory options: (1) refuse to confirm the sale and order a resale; (2) order a resale subject to a minimum bid; or (3) conduct a hearing to establish the value of the property and make confirmation conditioned upon the fair value of the property being credited to the judgment.
The court in Olathe Bank described the considerations in determining whether “fair value” of real property was received at a sheriff’s sale.
" ‘Fair value,’ for the purpose of credit upon a deficiency claim arising out of a mortgage foreclosure proceeding, is that sum which the mortgagee purchaser should, under all circumstances, reasonably expect to realize from the acquired premises, either by way of sale in the future or upon the basis of a permanent investment. ‘Fair value’ is not market value, fair market value, reconstruction or replacement value, real value, intrinsic value, or income value alone, nor is it the highest and best price that the property would bring in cash. ‘Fair value’ means value of property which will produce a fair and equitable result between the parties.” 17 Kan. App. 2d 112, Syl. ¶ 4.
We look to several Kansas cases for guidance as to whether the Zerrs received “fair value” for the property sold at the sheriff’s sale on the deficiency judgment. In Broughton v. Murphy, 155 Kan. 454, 126 P.2d 207 (1942), the trial court determined the reasonable value of the property was $2,500 and refused to confirm a sale for $800. The case was affirmed on appeal. 155 Kan. at 455, 457. In Liberty Savings & Loan Ass’n v. Jones, 143 Kan. 422, 425, 54 P.2d 937 (1936), the trial court heard conflicting evidence of the property’s value at the confirmation hearing. The trial court determined the bid was “substantially the real value of the property” and confirmed the sale. The Jones court found abundant competent evidence to support that finding and refused to reverse the trial court. In contrast, in Liberty Savings ir Loan Ass’n v. Hanson, 145 Kan. 174, 175-76, 64 P.2d 609 (1937), the court reversed the trial court and ordered confirmation because there was “no substantial disparity between the actual value of the property and the selling price at the sale in foreclosure” and there was no irregularity in the proceedings.
In rendering its decision confirming the second sheriff’s sale, the district court found that a substantially adequate price had been obtained for the three tracts of real properly. The court stated:
“The defendants claim that the sale of their mortgaged property should be set aside because the value of the property was more than the price garnered at the sheriff’s auction. The evidence and the exhibits, however, do not bear out the defendants’ claim. In order for the Court to decline to confirm the sale, the Court must find that the bids submitted were substantially inadequate. The evidence reflects the contrary. In looking at the evidence in the light most beneficial to the defendants, there may have been a 15% variance in the actual value of the property as opposed to the bid garnered by the sheriff’s sale. The Court cannot find that this bid then is substantially inadequate. The Court finds no other circumstances which in the Court’s discretion it could refuse to confirm the sale.”
We find the district court did not abuse its discretion in confirming the sheriff’s sale. Also, we do not find that the 15% variance in the value of the property and the price paid by FCB was substantially inadequate to deny confirmation.
Finally, the Zerrs argue the district court erred in entering the confirmation of sale because of the erroneous description of one of the tracts of real estate. They contend the notice was factually incorrect and, therefore, the sale should not have been confirmed because it was insufficient as a matter of law. On the other hand, FCB submits that the error was discovered prior to the sale and the sheriff did not sell the affected property at sale; thus, the district court did not abuse its discretion in confirming the sale of the other property.
The execution, order of the sale, and notice of the sale, including the published notice, all contained an erroneous description of one of the four tracts of real estate for sale. The property was described as the Northeast Quarter of Section 30 but should have been described as the Northwest Quarter of Section 30. In the way of explanation, the East Vz of the Northeast Quarter of Section 30 was sold at the sheriff’s sale for the mortgage foreclosure and the West Vz of the Northeast Quarter of Section 30 was encompassed in one of the descriptions of the other three tracts of real estate offered for sale to satisfy the deficiency judgment. Prior to the sale, FCB informed the sheriff of the error. At the sale, the sheriff announced the error and that neither the Northeast nor the Northwest Quarters of Section 30 would be sold. However, the sheriff sold the three other tracts of real estate not affected by the error.
The Zerrs cite provisions in K.S.A. 60-2415(a) as authority. It provides in relevant part that “[i]f the court finds the proceedings regular and in conformity with law and equity, it shall confirm the same.” K.S.A. 60-2415(a). The Zerrs speak of the inequity in allowing this sale to stand in light of the erroneous description. They argue that anyone reading the published notice could see that a portion of the real estate was included in two parcels listed for sale. They contend there is no way of knowing whether potentiál bidders were confused or discouraged by the incorrect notice. The Zerrs contend this issue was not an issue for the trial court to weigh.
FCB cites Carter v. Hyatt, 76 Kan. 304, 91 Pac. 61 (1907). In Carter, the court considered whether the failure of the clerk to affix his seal to the order of sale rendered all the subsequent proceedings void. 76 Kan. at 305. In upholding the sale, die Carter court stated: “The weight of authority seems to be that in the absence of fraud or circumstances that might affect substantial rights the court may cure by confirmation any infirmity in the proceedings which it could correct by immediately ordering a new sale.” 76 Kan. at 310.
We find that the sheriff took the appropriate corrective measures by not selling the improperly described property at the sale. The record is also void of any circumstances demonstrating fraud or an infringement of the Zerrs’ substantial rights. The Zerrs’ claim that individuals could be confused or discouraged by the incorrect notice is nothing more than speculation. Besides, if an individual is truly interested in purchasing the property described in the notice, he or she will attend the sheriff’s sale regardless of the error. We find the district court did not abuse its discretion in confirming the sale
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. | [
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|
Pierron, J.:
Lucy Cunningham, formerly Patterson, appeals the district court’s failure to utilize the formula in the Kansas Child Support Guidelines (KCSG) for computing a child support payment for a combined gross monthly income exceeding the highest amount shown in the child support schedules. She also raises issues concerning payment of past private education costs, payment of uninsured medical expenses, and the district court’s denial of her request for attorney fees. .
Jerry Patterson and Cunningham were divorced on November 14, 1985. They had two children, Jennifer, bom April 10, 1980, and Stephanie, bom March 6, 1985. The divorce decree incorporated a property settlement agreement between Patterson and Cunningham. The district court granted joint legal custody of the two children, with primary residential custody with Cunningham. Pursuant to the property settlement agreement, Patterson agreed to pay $750 per month in child support and the cost of private schooling of the two children, including college.
On September 11, 1989, Cunningham sought a child support increase based on Patterson’s increased income and an increase in the expenses of raising the two children. At the time, Patterson had a monthly income between $7,500 and $8,000. He filed a list of proposed supplemental considerations where he reaffirmed his agreement to pay the private school tuition and expenses of the two children. The district court granted Cunningham’s request and increased Patterson’s child support payment, in accordance with the KCSG, to $1,500 per month. However, the order stated that Cunningham would be responsible for any private schooling expenses of the two children prior to college. Cunningham did not appeal the decision.
On November 17, 1992, Patterson filed a motion to decrease child support because he was now supporting another child bom during his subsequent marriage. His proposed child support worksheet stated he had a monthly income of $12,500. In computing the child support, he used the number corresponding to support of two children, ages 7-15, in the highest gross monthly income ($8,400) on the three-child family schedule. Cunningham filed a motion seeking to enforce the September 11, 1989, order granting child support in the amount of $1,500 per month based on Patterson’s income and his ability to pay. In an order dated November 30,1992, the district court, utilizing Patterson’s worksheet, granted the motion and decreased his child support payment to $1,224 per month. No appeal was taken.
On July 14, 1994, Cunningham filed a motion for an order increasing child support commensurate with the updated child support guidelines effective August 1, 1994. Patterson’s monthly income was now in excess of $26,000 — over $300,000 a year. Cunningham also sought a qualified medical support order and reimbursement for private schooling expenses of the two children pursuant to the property settlement agreement and divorce decree. Cunningham alleged that Patterson had failed and refused to pay any of the private schooling expenses since the divorce.
In response, Patterson filed a motion which requested the court to set his child support payment at the top of the child support schedules. Patterson’s motion also stated that his request had historically been the practice in Sedgwick County; that there were no extraordinary needs in this case justifying child support beyond the highest amount on the guidelines; and that to hold otherwise would result in a windfall to Cunningham.
On August 30,1994, the district court increased Patterson’s child support obligation to $1,721 per month, consistent with the highest monthly income on the child support guidelines. Patterson and Cunningham were ordered to execute a qualified medical child support order. For uninsured medical expenses, Patterson was responsible for the first $1,000 and after that he would pay 75% and Cunningham would pay 25%. The district court ordered Patterson to pay all private schooling expenses as agreed upon in the divorce decree, bringing his monthly support obligation to $1,981, and to reimburse Cunningham for the private schooling expenses for the past 5 years.
Patterson filed a motion for clarification of ruling and/or reconsideration of the district court’s order. He requested that the district court modify its order requiring him to reimburse Cunningham for the previous 5 years of private schooling expenses. Patterson argued the September 11, 1989, order specifically ordered Cunningham to pay these expenses.
Cunningham requested that the district court enforce the parties’ property setdement agreement incorporated in the divorce decree and reconsider its ruling not to extrapolate the amount of child support beyond the top of the child support schedules. She also filed a motion to set aside the portion of the September 11, 1989, order modifying the property settlement agreement and the payment of private schooling expenses. Cunningham argued the district court lacked subject matter jurisdiction and therefore the judgment was void.
The district court set aside the August 30, 1994, judgment awarding Cunningham past private schooling expenses. The court based its decision upon the September 11, 1989, order which provided that Patterson was not responsible for such costs. However, the court ordered Patterson to pay the private schooling expenses from the 1994-95 school year forward. The court also declined to reconsider a child support payment in excess of the highest amount in the child support schedules, but offered to reconsider its decision if Cunningham could prove at an evidentiary hearing that there were extraordinary expenses or special needs in raising the two children.
Cunningham’s motion to set aside the September 11,1989, judgment was also denied. The court found the judgment modified Patterson’s child support payment and relieved him of his obligation to pay the private schooling expenses. The court pointed out that Cunningham did not appeal that judgment, and child support and educational expenses are subject to modification by the court during the child’s minority.
This appeal presents a question of first impression. Cunningham contends the district court abused its discretion in failing to follow the child support guidelines by not using the extrapolation formula to figure the child support payment since the combined monthly income was beyond the highest amount in the child support schedules. Cunningham contends the amount computed by this formula presents a rebuttable presumption of the child support payment. Therefore, a person requesting an increase or decrease from that amount, in this case Patterson, would have the burden of coming forward and rebutting the presumed paymentin order to obtain a reduction.
The standard of appellate review of a district court’s order determining the amount of child support is abuse of discretion. In re Marriage of Schletzbaum, 15 Kan. App. 2d 504, 505, 809 P.2d 1251 (1991). Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court. In re Marriage of Wade, 20 Kan. App. 2d 159, 168, 884 P.2d 736 (1994) rev. denied 256 Kan. 995 (1995).
The 1994 KCSG, Administrative Order No. 90 (1995 Kan. Ct. R. Annot. 83), were adopted by the Kansas Supreme Court and became effective August 1,1994. The underlying intent of the child support guidelines is explained in § II.A. as follows:
“The purpose of child support is to provide for the needs of the child. The needs of the child are not limited to direct needs for food, clothing, school, and entertainment. The child support is also to be used to provide for housing, utilities, transportation, and other indirect expenses related to the day-to-day care and well-being of the child.” 1995 Kan. Ct. R. Annot. 84.
The child support guidelines clearly address the situation presented in the case at bar. Section IV.C., entitled “Income Beyond the Child Support Schedule,” provides:
“If the Combined Child Support Income exceeds the highest amount shown on the schedules, the Court should exercise its discretion by considering what amount of child support should be set in addition to the highest amount on the Child Support Schedule. For the convenience of the parties, a formula is contained at the end of each child support schedule to compute the amount that is not set forth on the schedules.” 1995 Kan. Ct. R. Annot. 88.
An additional step-by-step example is then provided to demonstrate the use of the formula.
Prior to the Kansas Supreme Court’s adoption of the 1994 KCSG, the child support schedules did not contain the extrapolation formula or the language that the formula was for the convenience of the parties. The 1992 KCSG, Administrative Order No. 83 (1993 Kan. Ct. R. Annot. 71), merely provided in § IV.C.: “If the Combined Child Support Income exceeds the highest amount shown on the schedules, the Court should exercise its discretion by considering what amount of child support should be set in ad dition to the amount on the Child Support Schedule.” 1993 Kan. Ct. R. Annot. 75.
The question for our consideration is whether this formula and process create a rebuttable presumption as to the amount of child support that should be awárded in situations where the combined incomes exceed the usual schedule. We believe they do not.
Cunningham states the district court made it clear that extrapolation was not going to be used in Sedgwick County absent extraordinary expenses in raising the children. She argues this puts her in the position of rebutting the presumption that child support should never be higher than the highest amount on the schedules. She suggests if this were the case, the framers of the guidelines would not have included the extrapolation formula in the guidelines. Furthermore, Cunningham directs the court’s attention to the fact that nowhere in the guidelines does it mention a required showing of special needs in order to use the formula.
Patterson argues the guidelines do not state the use of the formula is mandatory. He contends the court is not deviating from the guidelines because it followed the guidelines to the top of the schedule. Given that extrapolation is discretionary, the trial court was not required to make specific findings for deviation. There are five factors which Patterson believes demonstrate that the district court did not abuse its discretion: (1) Extrapolation is not mandatory, (2) he is paying the highest amount on the support schedules, (3) the children do not have any special needs, (4) their lifestyle has not changed since the divorce, and (5) Cunningham has remarried and is not working.
Professor Linda Henry Elrod served as Vice-Chair of the Kansas Commission on Child Support and on the subcommittee which drafted the original child support guidelines proposal in Kansas. In her article Kansas Child Support Guidelines: An Elusive Search for Fairness in Support Orders, 27 Washburn L.J. 104 (1987), Professor Elrod discussed the problems associated with putting a cap on the highest combined monthly income in the child support schedules:
“A final question that caused considerable debate was whether there should be a cap on-the schedule. The subcommittee felt that judges should follow the general principle that children have a right to share in both parents’ standard of living regardless of income. Does this mean, however, that if the parent earns income of a million dollars, the child is entitled to that much as ‘child support’? The problem with requiring child support in amounts far in excess of the usual expenditures on children is that it effectively transfers most of the discretionary spending on children to the custodial parent. Some states Emit application of the schedule to certain income levels, while other states do not. Dr. Terrell’s economic data supports percentage amounts above the charted figures. At least one court, however, has held that child support guidelines used without limitations are unrealistic and unfair when both parents have substantial income. The Kansas guidelines include a table which stops at $8400 per month gross income. The trial court judge’s discretion will govern amounts above the charted figures. Hopefully, parents with incomes above the charted amounts will set up trusts or educational funds to provide equitably for their children." 27 Washburn L.J. at 124-25.
Practitioners dealing with situations such as this sometimes refer to the “Three Pony Ride.” That is, no child, no matter how wealthy the parents, needs to be provided more than three ponies.
The court in In re Marriage of Lee, 246 Ill. App. 3d 628, 615 N.E.2d 1314, reh. denied 153 Ill. 2d 560 (1993), discussed the problem of determining child support in high-income families. Illinois follows a flat percentage rate, rather than a schedule, for determining the amount of child support. Ill. Comp. Stat. ch. 750, 5/505(a)(l) (1994).
“Determining the amount of child support to be paid by a high-income parent is a difficult exercise for the trial court. Where the individual incomes of both parents are more than sufficient to provide for the reasonable needs for the parties’ children, taking into account the life-style the children would have absent the dissolution, the court is justified in setting a figure below the guideline amount. (In re Marriage of Bush (1989), 191 Ill. App. 3d 249, 260, 547 N.E.2d 590, 596.) In Bush, we reversed an award of 20% [pursuant to Illinois guidelines] of the noncustodial parent’s income where such an award was approximately $30,000 per year and both parents were doctors and earned significant incomes. We noted a reasonable basis for high support payments may be warranted in the case of high medical expenses or expensive private education; however, we found Bush was not such a case. Bush, 191 Ill. App. 3d at 260-61, 547 N.E.2d at 596.
In fixing the child support obligation of a high-income parent, the trial court must balance competing concerns. On the one hand, the trial court should not Emit the amount of child support to the child’s ‘shown needs,’ because a child is not expected to Eve at a minimal level of comfort while the noncustodial parent is Eving a life of luxury. (People ex rel. Graham v. Adams (1993), 239 Ill. App. 3d 643, 645, 608 N.E.2d 614, 616.) The trial court must consider the standard of living the child would have enjoyed absent parental separation and dissolution. (Bush, 191 Ill. App. 3d at 261, 547 N.E.2d at 596.) On the other hand, child support payments are not intended to be windfalls, but rather adequate support payments for the upbringing of the children. Bush, 191 Ill. App. 3d at 261, 547 N.E.2d at 596-97" 246 Ill. App. 3d at 643-44.
The KCSG provides that “[j]udges and hearing officers must follow the guidelines.” 1995 Kan. Ct. R. Annot. 83. Cunningham cites several cases demonstrating it is mandatory that a judge or hearing officer comply with the child support guidelines. In Schletzbaum, 15 Kan. App. 2d 504, the district court ignored the amount due under the child support guidelines and ordered a payment of approximately $100 less than the amount stated in the guidelines. The trial court made no findings setting forth its reasons for deviating. In addressing the lack of specific findings, the Schletzbaum court stated: “The guidelines are mandatory and must be complied with by the trial court when ruling on child support matters to which the guidelines are applicable.” 15 Kan. App. 2d at 506. This court reversed the lower court’s decision, finding that the child support guidelines require the trial court either award the amount established by the guidelines or use § E of the worksheet to make written findings or specific findings on the record as to the reasons for deviating. 15 Kan. App. 2d at 506-07. See Shaddox v. Shoenberger, 19 Kan. App. 2d 361, Syl. ¶¶ 1, 2, 869 P.2d 249 (1994).
Schletzbaum and Shaddox are distinguishable. They dealt with deviations from the presumptive payment established in the support schedules. Furthermore, neither involved a monthly income higher than that found on the support schedules and would not have required the use of the extrapolation formula.
Cunningham cites two other cases Baker v. Baker, 866 P.2d 540 (Utah App. 1993), and Anonymous v. Anonymous, 631 So. 2d 1030 (Ala. Civ. App. 1993). She states the Utah Court of Appeals, when ruling on this issue, held:
“[T]he court shall establish support after considering all relevant factors, including but not limited to:
(a) the standard of living and situation of the parties;
(b) the relative wealth and income of the parties;
(c) the ability of the obligor to earn;
(d) the ability of the obligee to earn;
(e) the needs of the obligee, the obligor, and the child;
(f) the ages of the parties; and
(g) the responsibilities of the obligor and the obligee for the support of others.” 866P.2d at 545.
Cunningham’s so-called “holding” in Baker is actually a reproduction of the language in Utah Code. Ann. § 78-45-7(3) (1995 Supp.). The beginning of that statute, which Cunningham omits, reads: “If the court finds sufficient evidence to rebut the guide-fines, the court shall . . . .” Utah Code. Ann. § 78-45-7(3) (1995 Supp.) The court in Baker actually held that the amount of the child support was just and appropriate under the circumstances. 866 P.2d at 545. With regard to the factors cited by Cunningham, the Baker court held:
“However, by the very language of that section [Utah Code. Ann. § 78-45-7(3) (1995 Supp.)], a trial court need consider these enumerated factors only when there is sufficient evidence to rebut the guidelines set forth in section 78-45-7.14. In the case at bar, since the award of child support was beyond the amount listed in the statutory guidelines, neither party’s proposed award even addressed, much less rebutted, the guidelines. Accordingly, the trial court did not err in declining to address the factors listed in section 78-45-7(3).” 866 P.2d at 545.
Utah’s Uniform Civil Liability for Support Act is very similar to the KGSG in dealing with child support in high-income families. Utah Code Ann. § 78-45-7.12 (1995 Supp.) states:
“If the combined adjusted gross income exceeds the highest level specified in the table, an appropriate and just child support amount shall be ordered on a ease-by-case basis, but the amount ordered may not be less than the highest level specified in the table for the children due support.”
Cunningham also cites Anonymous, 631 So. 2d 1030. However, Anonymous only found it was not an abuse of discretion to award support in excess of the child support schedule. 631 So. 2d at 1032.
Pursuant to the language of § IV.C. of the KCSG, we find the district court has wide discretion in determining the amount of child support when the monthly income of one of the parties exceeds the highest amount in the child support schedules. Additionally, the formula found at the end of each of the child support schedules is merely for the convenience of the parties and the district court and does not create a rebuttable presumption of the amount of child support.
In this case, the district court stated that unless Cunningham was able to show special needs of the minor children, the court would not award child support higher than the highest amount in the support schedules. We note the district court had a very generous definition of special needs, including medical needs, physical or mental handicap, counseling needs, unique talents, or educational needs. However, we are concerned with the district court’s seemingly flat declaration that extrapolation would not even be considered absent some special showing of need.
While the district court has very wide discretion in this area, it does not have the discretion to refuse to consider exercising it. We realize, as a practical matter, that requiring the district court to consider the extrapolation tables without making them presumptive may have veiy little if any impact on the decision-making process. However, the guidelines require discretionary consideration of them, and we so order.
Next, Cunningham argues the September 11,1989, order, where the district court directed her to be responsible for the private schooling costs, is a void judgment. She concedes that pursuant to K.S.A. 1995 Supp. 60-1610(b)(3), the district court has continuing jurisdiction to modify orders pertaining to custody, support, or education of the minor children. However, she argues this is only if the parties have not otherwise reached an agreement in their separation agreement which had been incorporated in their journal entry and divorce decree.
Kansas law is clear that a property settlement, once accepted by the court and incorporated into the divorce decree, may not generally be modified by the court except as prescribed by the agreement or subsequent consent by the parties. Miller v. Miller, 6 Kan. App. 2d 193, 194-95, 627 P.2d 365 (1981). However, K.S.A. 1995 Supp. 60-1610(b)(3) unquestionably provides that the district court retains jurisdiction to modify issues dealing with custody, support, or education of the minor children. Beard v. Beard, 12 Kan. App. 2d 540, Syl. ¶ 1, 750 P.2d 1059 (1988).
K.S.A. 1995 Supp. 60-1610(b)(3) explains as follows:
“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.” (Emphasis added.)
“Interpretation of a statute is a question of law. An appellate court’s review of a question of law is unlimited.” Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995). Two rules of statutory interpretation are relevant to our examination of K.S.A. 1995 Supp. 60-1610(b)(3). “It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained.” City of Wichita v. 200 South Broadway, 253 Kan. 434, Syl. ¶ 1, 855 P.2d 956 (1993). “When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be.” Martindale v. Tenny, 250 Kan. 621, Syl. ¶ 2, 829 P.2d 561 (1992).
Cunningham quotes Bair v. Bair, 242 Kan. 629, 634, 750 P.2d 994 (1988), where the court stated:
“ ‘A party who seeks and obtains from a trial court its approval of a separation agreement and the incorporation thereof in a decree of divorce and thereafter accepts the benefits of the decree cannot avoid its disadvantages by a motion to modify except as to those matters over which the court has continuing jurisdiction.’ ” (Emphasis added.) (Quoting Spaulding v. Spaulding, 221 Kan. 574, Syl. ¶ 1, 561 P.2d 420 [1977]).
Bair and Spaulding considered issues surrounding the modification of alimony payments, not child support, and are not relevant to this case. Furthermore, utilizing the language of Bair, K.S.A. 1995 Supp. 60-1610(b)(3) provides that the district court has continuing jurisdiction over a minor child’s education.
Cunningham’s interpretations of K.S.A. 1995 Supp. 60-1610(b)(3) are clearly erroneous. The statute states in plain and unambiguous language that the district court continues to have jurisdiction over educational matters of a child until he or she reaches majority. The fact that the district court on September 11, 1989, was not directly presented with the question of private schooling costs does not alter the district court’s jurisdiction over such matters.
We are fully aware that in some cases, perhaps even the instant one, a party may compromise on other areas in order to secure particular provisions for child support and education. A modification of child support and education provisions by the court may therefore indirectly affect the delicate balance the parties struck in their property settlement agreement. While 60-1610(b)(3) may cause some difficulties in such situations, and require more thought and planning in the drafting of property settlement agreements, its mandate is clear. The trial court had jurisdiction to modify the educational provisions of minor children.
Next, Cunningham submits the district court abused its discretion by ordering her to pay 25% of the uninsured medical expenses after the first $1,000. She argues the child support guidelines provide that all necessary medical expenses which are not covered by insurance should be assessed to the parties in accordance with the parties’ proportional share as established in the child support worksheets. Since she has no income, Cunningham argues the district court abused its discretion by requiring her to pay any of the medical expenses without making any specific findings on the record or in the journal entry as to why she should. Cunningham argues that since Patterson is only paying approximately half of what he would have paid had the court used the extrapolation formula to figure his child support payment, and since his current child support payment is only approximately 6% of his gross monthly income, it is inequitable and an abuse of discretion to order her to pay any of the medical expenses.
The child support guidelines state in § V.D.4.: “The court shall provide that all necessary medical expenses (including dental, orthodontic, optometric, etc.) which are not covered by insurance (including deductible) should be assessed to the parties in accordance with the parties’ proportional share on Line D.2. of the worksheet.” 1995 Kan. Ct. R. Annot. 94.
Patterson states the child support guidelines use the language “should be assessed” in accordance with the proportional share and therefore a mandatory rule is not created. He suggests if the guidelines used words like “shall” or “must” it would be mandatory. Patterson argues it was clear the district court felt it was necessary to make Cunningham responsible for these medical expenses in order to prevent frivolous medical visits. He also alleges the district court imputed income to Cunningham since she was not working. He argues it is clear that $1,000 of uninsured medical expenses per year is high for two healthy children and that anything exceeding that amount would be unusual.
The record does not contain any of the district court’s rationale as to why it ordered the medical expenses to be divided in this manner. We are also concerned that the record lacks a child support worksheet. “Child support worksheets approved by the court shall be filed in every case where an order of child support is entered.” In re Marriage of Beacham, 19 Kan. App. 2d 271, Syl. ¶ 1, 867 P.2d 1071 (1994). The appellate record does not contain a transcript of the August 30, 1994, hearing where the court made the order, nor is there any evidence in the written order as to why Cunningham should be responsible for 25% of the uninsured medical expenses over $1,000. There may be good cause, but we have no way to know. We must remand for preparation of a worksheet and appropriate rationale.
Finally, Cunningham makes a similar argument concerning the district court’s denial of her request for attorney fees. K.S.A. 1995 Supp. 60-1610(b)(4) provides that costs and attorney fees may be awarded to either party in domestic matters “as justice and equity require.” “It is within the discretion of a trial court to award attorney fees when motions are filed to modify child custody orders or child support orders.” Dunn v. Dunn, 3 Kan. App. 2d 347, Syl. ¶ 2, 595 P.2d 349 (1979). Pursuant to K.S.A. 1995 Supp. 60-1610(b)(4), the district court is vested with wide discretion to determine both the amount and the recipient of an allowance of at tomey fees. See Baker v. Baker, 217 Kan. 319, 321, 537 P.2d 171 (1975). Upon review of an award of attorney fees, the appellate court does not reweigh the testimony or evidence presented nor reassess the credibility of witnesses. See Wiles v. Wiles, 200 Kan. 574, 576, 438 P.2d 81 (1968). “Where the exercise of discretion is arbitrary and not judicial, and the judgment is inequitable, it will be set aside.” St. Clair v. St. Clair, 211 Kan. 468, 499, 507 P.2d 206 (1973).
Patterson does not directly address Cunningham’s request for attorney fees. Rather, he argues it is clear that each of the issues raised on appeal are clearly supported by statutes and cases in his favor and that Cunningham’s request for additional hearings and this appeal are not meritorious and have caused him unnecessary attorney fees. He also states that at the August 30, 1994, hearing, where the district court ordered him to reimburse Cunningham for the private schooling expenses, Cunningham did not mention the September 11,1989, order requiring her to pay those expenses. Patterson argues that Cunningham’s new attorney violated MRPC 3.3(d) (1995 Kan. Ct. R. Annot. 311) when she became aware of the September 11,1989, order and failed to bring it to the attention of the district court. Therefore, Patterson argues he should be awarded attorney fees since he had to take the proper remedial measures.
We do not consider Patterson’s requests for attorney fees for this appeal. He has failed to follow the necessary procedures in Kansas Supreme Court Rules 5.01 (1995 Kan. Ct. R. Annot. 26) and 7.07 (1995 Kan. Ct. R. Annot. 44) for such a request. Nor do we address his request for attorney fees for his motion for clarification of ruling and/or reconsideration based on the September 11, 1989, order requiring Cunningham to pay the private schooling expenses.
In making its ruling that Patterson was not required to reimburse Cunningham for the expenses, the district court stated that neither party was responsible for the other party’s attorney fees. Patterson failed to appeal this decision or file a cross-appeal in the present case. The notice of cross-appeal must be filed within 20 days after notice of appeal has been served. K.S.A. 60-2103(h). “We have held failure to file a cross-appeal precludes the appellate court from reviewing the district court’s rulings complained of by appellees.” City of Lenexa v. Board of Johnson County Comm’rs, 237 Kan. 782, 784, 703 P.2d 800 (1985).
The district court did not abuse its discretion by failing to award attorney fees to either Patterson or Cunningham for the motion to reconsider. Patterson argues it was Cunningham’s error for not bringing to the attention of the court the September 11, 1989, order requiring her to pay the private schooling expenses. Cunningham argues Patterson’s failure to present the September 11, 1989, order to the court resulted in a second hearing on an issue that should have been addressed at the first hearing. We also note that the reason for the confusion appears to be that both Cunningham and Patterson had changed attorneys in the period between September 1989 and August 1994.
The ultimate question is whether the substantial disparity of income is sufficient reason to require Patterson to pay the attorney fees. The trial judge is considered an expert in determining attorney fees. See St. Clair, 211 Kan. at 499-500. We cannot say the district court abused its discretion in the case.
We reverse and remand with instructions that the district court consider the use of the extrapolation formula and prepare a child support worksheet and appropriate findings concerning medical expenses. We affirm on all other issues.
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by C. 'H. Lamb against the receiver of the Peoples State Bank of Coffeyville to recover $500 and to have it adjudged to be a trust fund payable in full out of the assets of the insolvent bank in preference to the claims of general creditors. Judgment was given for plaintiff and the deposit was adjudged to be a preferred claim. Defendant appeals.
The case was tried upon agreed facts, in substance that plaintiff deposited in the bank in an escrow account $500 to be paid to one Anderson on the fulfillment of a ■ contract between him and plaintiff. The contract, executed on November 23, 1920, was to the effect that Anderson would drill a well for oil or gas on certain premises and plaintiff was to have a one-eighth interest in the lease, and if oil was found should pay one-eighth of the cost of equipping the oil well. It was stipulated that upon the completion of the oil yrell and the delivery to plaintiff by Anderson of a one-eighth interest in the lease and the disposition of the remaining interests in the lease, the deposit was to be paid to Anderson, but if he failed to perform these conditions the bank was to return the money deposited to the plaintiff. Anderson failed to perform the conditions, but the money was not returned to plaintiff. Instead of holding the money for the specified purpose it Was commingled with the general funds of the bank and used in honoring checks, making loans and carrying on the general business of the bank. After-wards the bank became insolvent, and, on January 20, 1921, a receiver was appointed who took charge of its assets and is now winding up its, business. Andérson was indebted to the bank in an amount of $3,000 and the receiver claimed a lien on the escrow deposit for the payment of Anderson’s indebtedness. The plaintiff claimed that the escrow deposit was a trust fund in the hands of the receiver and should be treated as a preferred claim against the assets in the hands of the receiver. The court sustained the claim of the plaintiff and held that he was entitled to a preferential payment out of the assets in the hands of the receiver. The facts relating to the misappropriation of the special deposit, the insolvency of the bank and the passing of the assets into the hands of a receiver, are the same as in the companion case of Secrest v. Ladd, Receiver, just decided, ante, p. 23, and under the rule of that authority the plaintiff is entitled to follow the fund and reclaim it in full out of the assets which passed to the receiver before distribution is made to general creditors.
The receiver asserted a claim against the fund because Anderson was indebted to the bank in the sum of $3,000. That indebtedness did not give the bank or the receiver a lien on the trust fund. Anderson acquired no interest or ownership in the special deposit because of his noncompliance with the contract. The contract not being fulfilled, the money equitably belonged to the plaintiff. The ownership of the fund held in trust by the bank never passed to the bank, and the receiver can have no better title to it than the bank had. There is no ground for setting off the indebtedness of Anderson as against the claim of plaintiff.
Judgment affirmed. | [
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The opinion of the court was delivered by
BueCH, J.:
The action was one by the depositors in a bank, to recover from the receiver the amounts of their deposits, as trust funds. The plaintiffs prevailed, and the defendant appeals.
' On January 18, 1921, the bank was hopelessly insolvent, and a draft for $52,000, drawn by the county treasurer against his account in the bank, went to protest. On the next day the bank continued to do business, and accepted the deposits sued for. Its conduct amounted to a fraud on the depositors. (20 A. L. R., 1206, annotation; 7 C. J. 730; 3 R. C. L. 557.) The proof was that the assets which came into the hands of the receiver were augmented by the full amounts of the deposits. That being true, the plaintiffs were entitled to recover the deposits, as trust funds. (Secrest v. Ladd, Receiver, ante p. 23, 209 Pac. 824.)
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
C. A. Leinbaeh brought this action seeking the specific performance of a written contract by which he claims that J. B. Dyatt agreed to sell to him a tract of several sections, and asking damages as alternative relief in case specific performance could not be had. The trial court decided in favor of the plaintiff, and finding that a conveyance of a clear title could not be made, gave him a personal judgment against Dyatt for the amount of the purchase price he had paid, secured by a lien upon the land, which had been deeded to Andrew Dyatt, his brother. The two Dyatts and their wives, who were also made defendants, appeal from this judgment, and the plaintiff, by way of cross-appeal, asks that he have personal judgment also against Andrew Dyatt. The North American Life Insurance Company has a mortgage on the land (perhaps including other tracts), executed by Andrew Dyatt and his wife. That company was also made a defendant, but the judgment did not attempt to disturb its lien, and it does not appeal. As it is not an interested party the term defendants will be used to designate the Dyatts.
In April, 1919, a written contract was.entered into which may be spoken of as one between J. B. Dyatt and the plaintiff, for the latter acquired the interest of a partner who was originally associated with him in the deal. It provided that the plaintiff was to advertise and conduct an auction sale of 16,000 acres of land owned by Dyatt, for a commission of 10 per cent of the sale price, sales to average $20 an acre, terms to be 25 per cent cash, deferred payments to bear 6 per cent interest. The advertising was done and arrangements made for the sale, which was begun in the presence of prospective bidders and many others on the afternoon of May 6, and continued during the afternoon of the next day, Andrew Dyatt acting as clerk. A number of bids were made and accepted on each day, some of them by Andrew Dyatt and Dyatt relatives. On the second day the tract here in controversy was put up and bid on, being run up to $34.50 an acre. The plaintiff then made a bid of $35 an acre, which was accepted.
From this point the testimony is in conflict. According to the plaintiff’s version of the affair this is what happened: His bid was made in behalf of, and at the request of, Andrew Dyatt, who after-wards repudiated it. The plaintiff then agreed to stand by it and take the property. There was a disagreement between him and J. B. Dyatt as to what sales had been made and what amount of commission had been earned. They finally agreed to a settlement on this basis: the plaintiff was to have a commission of $27,200, which was arrived at by including a commission on the sale of the tract to himself ; he was to be paid $2,000 in money; the remaining $25,200 was to be credited as his cash payment upon the land in controversy, the deferred amount, $75,600, to be payable in ten years, secured by note and mortgage. A written contract for the sale of the land on these terms was executed by J. B. Dyatt and the plaintiff. Another written agreement was made between them at the same time giving J. B. Dyatt an option to receive the land back by paying the plaintiff $27,200 by July 15, ‡919.
J. B. Dyatt denied having made such a settlement or having knowingly signed the contracts relating to the sale of the land to the plaintiff. He testified, in effect, that he signed them supposing them to be two of some ten sales contracts that were to be executed in duplicate — papers to close up the sales.
1. The defendants urge that the petition did not state and the evidence did not tend to show a cause of action. We regard the petition as sufficient to advise the defendants of the nature of the plaintiff’s claims, and the objections made to it will necessarily be covered in a consideration of the question whether the evidence was sufficient to support the judgment.
There is a conflict in the testimony as to how many and what sales were made, and what commission, if any, the plaintiff had earned. The decision of the trial court must of course be regarded as settling all such disputes in favor of the plaintiff. Moreover, inasmuch as the plaintiff relies upon an adjustment and settlement of these matters the merits of the original disagreement are no longer important if his claim in that regard is sustained. The vital questions in the case are involved in a discussion of the making, validity and effect of the compromise, and the extent to which the original contract was performed will only be hereinafter referred to in connection therewith.
The defendants urge that the claim of the plaintiff to the commission could not serve as a sufficient consideration for the com promise, on the ground that it was not made in good faith and was wholly without foundation in law or fact, and specifically because the provisions of the original contract that the land sold should average $20 per acre, and that 25 per cent of the purchase price should be paid in cash, were not complied with. “A doubtful or disputed claim, sufficient to constitute a good consideration for an executory contract of compromise, has been defined as one honestly and in good faith asserted, arising from a state of facts upon which a cause of action can be predicated, with the reasonable belief on the part of the party asserting it that he has a fair chance of sustaining his claim, and concerning which an honest controversy may arise, although in fact the claim may be wholly unfounded.” (5 R. C. L. 881; see, also, 12 C. J. 327-333.) From what has already been stated it is evident that it cannot be said as a matter of law that the plaintff could not reasonably have believed in the claim he put forward. The question of good faith was likewise one of fact in which the decision of the trial court is final. There was evidence that before the beginning of the sale there was an-agreement, to which J. B. and Andrew Dyatt were parties, that the land might be put up for sale without the $20 per acre restriction. If J. B. Dyatt entered into contracts of sale with the persons with whom the plaintiff had negotiated deals, he could hardly be heard to complain in a controversy over commission that the terms were not such as he had originally fixed. There was specific testimony that J. B. Dyatt accepted two bids about which there had been a con-trovery, and acknowledged that they were satisfactory to him. In the defendants’ brief it is said: “The evidence of the appellee tended to show that all of these sales (referring to sales of 13,280 acres) were satisfactory to and accepted by J. B. Dyatt, and that J. B. Dyatt agreed to allow commissions thereon, said commissions being, by virtue of the auction contract, ten pen cent of the amount for which the property sold.” Questions are raised as to the financial ability of some of the buyers, including the plaintiff. Where the seller accepts a buyer produced by his agent, so far as to enter into a contract of sale with him, his lability for the commission is no longer affected by the question of the buyer’s ability, to pay. (Button v. Stewart, 90 Kan. 602, 135 Pac. 681.) The trial court having found, upon sufficient evidence that-the written contract for the sale of land to the plaintiff was knowingly entered into by J. B. Dyatt, a case for specific performance was made out unless it should be denied for some special reason.
The defendants assert that the plaintiff’s action is founded on the original contract for the ten per cent commission; that to entitle him to recover it was necessary for him to show a full compliance therewith on his part; and that he has not done so. As already indicated we regard the question of performance as taken out of the case by the compromise. It is also urged that the plaintiff’s conduct, according to his own story, in putting in a bid in behalf of Andrew Dyatt, precludes a recovery of commissions, on the ground that he could not act as the agent both of the buyer and the seller. He was not personally acting as the auctioneer, and it is not clear that in merely putting in a bid in his own name for another person he was guilty of any disloyalty to the owner of the land; but whatever right J. B. Dyatt might have had to avail himself of that contention, or to object to the plaintiff himself being a purchaser, has ip our judgment likewise been lost by his entering into the adjustment referred to.
The contract sued upon, by which J. B. Dyatt agreed to convey the land to the plaintiff, recited that the plaintiff had deposited the payment of $25,200 in a bank. The defendants urge that the fact that the money had not been so deposited is sufficient to defeat the performance of the contract. The contract giving J. B. Dyatt the option to repurchase or redeem the land contained, as a part of the recital of the execution of the sale agreement, the words, “and in consideration of a settlement of certain auctioneer and sale commissions, the party of the first part (the plaintiff) has paid twenty-seven thousand two hundred dollars.” It is clear from this as well as from the oral evidence concerning the settlement that $25,200 of the amount of commissions agreed upon was paid by treating it as the cash payment on the sale of the land to the plaintiff.
2. The defendants complain of the admission -of testimony that at the time of the sale J. B. Dyatt consented to a removal of the $20 per acre restriction on the average price at which the land should be sold, on the ground that it was an attempt to vary the terms of a written contract by parol. The alleged consent was given after the execution of the contract, and it would appear that the seller might, if he saw fit, waive a condition of the sale without affecting his liability. But in any event, the evidence was admissible upon the issue of the good faith of the plaintiff’s claim to having earned his commissions. A witness testified that J. B. Dyatt told him he was willing to carry out the contract -to convey the land to the plaintiff, but that Andrew Dyatt would not allow him to do so. Objection is made to this testimony on the ground that it was not binding on Andrew Dyatt because the statement was not said to have been made in his presence. The presumption is that the trial court did not give the evidence any weight as against Andrew Dyatt.
3. The trial court found specifically that Andrew Dyatt had knowledge of the material contents of the two contracts relating to the sale of the land to the plaintiff before he purchased it from his brother, and also that he entered into a fraudulent agreement with him for the purpose of depriving the plaintiff of his rights under such contracts, “and took a conveyance to the land in question.” The defendants assert that there was no evidence to support either of these findings.
The plaintiff testified that he reported to Andrew Dyatt his bid of $35 an acre, and the latter said: “We were willing for it to sell for less money, you have bid it in, now you can just keep it. . . . I don’t want it, and you can just keep it as your bid.” J. B. Dyatt testified that he first learned of the plaintiff’s bid when he got word from Andrew. A part of his cross-examination was as follows:
“Q. Did you tell Andrew that Leinbach. had demanded this property? A. We had a little talk about it, one way or another.
“Q. Did you tell him anything about these papers having been signed? A. I told him about the papers I had signed at the bank.
“Q. One was the Leinbach sales contract? A. I suppose so, and that they figured up the amount of $300,000, and he said that was wrong and don’t settle on that kind of commission, it will not amount to one-third of that.
“Q. Did you tell him you signed this, agreeing to sell the land to Leinbach? A. I don’t know; I supposed it was a sales contract I signed.”
A Tribune attorney who had taken part in the negotiations resulting in the compromise wrote to Andrew Dyatt at Almena on May 17 reciting the settlement and the execution of the contracts for the sale of the land to the plaintiff, and saying that it seemed imperative that an action should be brought against the brothers and a receiver of the land asked for, adding that he would be in Goodland on the morning of the 23d. He testified that at the same time he sent a telegram to Andrew Dyatt, who denied receiving it. Andrew Dyatt testified that he thought he got the letter about the 21st or 22d. The deed from J. B. Dyatt to his brother was dated May 19. Andrew Dyatt testified that he bought the property for $40,000 over the mortgage, which he assumed and renewed. That he met the attorney referred to on May 26, and at that time had not paid his brother in full.
It is obvious that Andrew Dyatt is not entitled to the full rights of an innocent purchaser, since he does not profess to have paid all of the purchase price at the time he admits he had full knowledge of the situation (Green v. Green, 41 Kan. 472, 21 Pac. 586), and indeed did not testify that he had paid any cash before learning of the plaintiff's claim. We regard the evidence already recited as sufficient to support the inference which the trial court drew, that Andrew Dyatt knew of the deal with the plaintiff when he took the deed, and that he took it in collusion with his brother for the purpose of defeating the plaintiff’s right to the land.
The rights obtained by Andrew Dyatt through the deed from his brother being subordinate to those of the plaintiff, his wife could acquire no higher interest in the land by virtue of that relation. If the wife of J. B. Dyatt should survive him she would take no interest in his land sold on judicial sale or necessary for the payment of his debts. (Gen. Stat. 1915, § 3831.)
4. The defendants seek to invoke the rule that a simple contract creditor, having no lien on the property, cannot successfully attack as fradulent a conveyance made by his debtor. The present case is not within that rule. The plaintiff by, his contract of purchase acquired a right to the property which could not be defeated by a conveyance to one having knowledge of it. (39 Cyc. 1647, 1648.)
5. J. B. Dyatt filed a demurrer to the petition on the ground that several causes of action were improperly joined, and complaint is made of the order overruling it. The allegations of the making of the original contract, of the things done under it, and of the compromise of the disagreement about the amount due the plaintiff were all essential to the case for specific performance, because showing in what manner the 25 per cent of the purchase price was paid, and this cause of action affected all parties. But, as already shown, the commission agreed to was $27,200, and only $25,200 of this was turned on the contract of sale, leaving a balance of $2,000 for which the plaintiff asked and obtained judgment against J. B. Dyatt. The facts essential to specific performance could not be established without also establishing the existence of the personal demand for $2,000 against J. B. Dyatt. None of the other defendants, however, were directly affected by this part of the plaintiff’s claim, and ordinarily its inclusion in the petition would seem to amount to a misjoinder. But the rule that only those causes can be joined which affect all the parties does not apply in actions to enforce mortgages or other liens. (Gen. Stat. 1915, § 6979.) A substantial part of the relief sought by and granted to the plaintiff was the enforcement of a lien against the land in question; the defendants, other than J. B. Dyatt, were brought in wholly or in part because of their actual or supposed interest in the land; the only judgment (other than for costs) rendered against anyone except J. B. Dyatt was the decree for the sale of the property to pay the lien. In this situation the overruling of the demurrer was not error.
6. The plaintiff asks the modification of the trial court’s decision so that the personal judgment for the $25,200 shall run against Andrew Dyatt as well as against J. B. Dyatt. It has been held that where the vendor, in conspiracy with a third person who assists him therein, disables himself to perform a contract for the conveyance of land, the purchaser, when denied specific performance on that account, may have judgment for damages against both of the persons by whose conduct it was prevented. (Powell v. Young, 45 Md. 494.) We do not think the present case falls within that rule, for while the trial court found that Andrew Dyatt entered into a fraudulent agreement with J. B. Dyatt for the purpose of depriving the plaintiff of his rights, the fair implication is that the method by which this purpose was sought to be carried out was by the conveyance of the land to Andrew Dyatt. That conveyance did not prevent the specific performance of the contract. So far as it was concerned, specific performance could have been adjudged and enforced, the decree cutting off the interests of both the Dyatts. What prevented an effective judgment for specific performance was the existence of the mortgage, without the release of which the Dyatts could not make a good title. This mortgage was not a new lien, but á mere renewal of an old one. J. B. Dyatt’s agreement to convey the land was presumably entered into in the expectation that he would make some provision for its release as to this -tract. Because of his failure to do so, a deed from him would not have passed a clear title, even if he had not executed the deed to his brother. It was not found that his omission to provide for the release of the mortgage was in any degree due to the conduct of Andrew Dyatt. In this situation we cannot say that it was error to deny a personal judgment against the latter.
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The opinion of the court was delivered by
MaRShall, J.:
The plaintiff brought this action under section 722 of the General Statutes of 1915 for personal injuries to her, caused by a defective public road in the defendant township. Judgment was rendered in favor of the plaintiff, and the defendant appeals.
The defendant in its reply brief states that “all the error upon which we rely is involved in the claim that the evidence does not show notice to the township trustee of the defect complained of.”'
The road was on a hill side, and the defect in the road consisted of ditches on its sides, in its center, and across it. The plaintiff testified in part as follows:
“Q. Now, Mrs. Joyce, do you know Mr. Emmet Scanlon? A. Yes.
“Q. Was the township trustee out there at that time? A. Yes.
“Q. You had been acquainted with him before this accident, hadn’t you? A. No, I had known him — Yes, I had mqt him on the road and spoke to him about repairing it but I was introduced to him later.
“Q. How long was that before the accident? A. That would be about three months before the accident.
“Q. What did you tell him about the road? A. I told him the road was in a condition needed fixing or some of us would get hurt sooner or later.
“Q. Did you specify any particular part of the road? A. Yes.
“Q. What did you say to him with reference to the particular part of the road you was complaining of? A. I told him it was funny that we paid our taxes and we never could get any work done on the road. I says, ‘Here around Barker’s they work on the road but our part they never.’ I told him the road was in very bad condition and needed taking care of.
“Q. Did you tell him what road? A. I told him the Merritt road right where we live.
“Q. What did he say to that? A. He told me he would look after it.”
She further testified to a conversation had by her with the township trustee after the accident in which he said, “I would have fixed the road but there was no money in the treasury and I thought to fix this road many times. They wouldn’t let me do it because there was never no money in the treasury.”
In response to inquiries she testified as follows:
“Q. What, if anything, did he say about knowing the road was in bad condition? A. He said he had known it was in bad condition for three or four months.
“Q. What I am trying to get at is, did he say anything about whether or not he knew the road was in bad condition before you was hurt or after? A. He said he knew the road was in bad condition for'three or four months before I was hurt.”
Another witness, a son of the plaintiff, testified that in a conversation with the township trustee after the accident, the latter stated that he knew the road was in bad condition for about three months before the accident, that the township was out of money, and that they would not appropriate any money to have him repair the road.
That evidence tended to prove that the township trustee had both notice and knowledge of the defect in the road at the place where the accident occurred. There was no other defect at that place. The township trustee had notice and knowledge sufficient to charge the defendant with liability for the damage sustained by the plaintiff on account of the defect in the highway.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is an appeal from a judgment awarded to plaintiff upon an insurance policy.
By the policy plaintiff’s building in Neutral was insured against loss by fire or lightning for a period of one year from June 24, 1918. It appears that a small loss by fire was sustained on October 21, 1918, which was adjusted, and later the defendant sent a draft for that amount to J. Wilbur Logan, its agent at Baxter Springs, but this draft was not delivered to plaintiff. On February 10, 1919, the building was entirely destroyed by fire and there is no dispute as to the extent of the loss nor as to the fact that proper proofs of loss were given to defendant. The defense made against the claim was that the policy had been canceled and terminated by the defendant on October 22, 1918, when the defendant was given credit on the books of the agency for the return premium. A state agent of the defendant testified that when the first loss of $30 was adjusted it was agreed that the policy should be canceled and that he was authorized to obtain the policy, which was then in the hands of the local agent. The state agent said he computed the amount of the return premium, which he paid to the local agent. On what is called the “Daily Report” of the local agent, there was written the words “canceled by special agent, $3.85 return premium allowed, October 1st, 1918,” but when this entry was made is not shown. It is conceded that the plaintiff had the right to cancel the policy upon giving due notice thereof to the defendant, but plaintiff testifies that no agreement for a cancellation had ever been made and no notice of cancellation had ever been given to him by the company or by any of its agents. Logan, the local agent, who had procured the insurance, testified that he did not know of a cancellation and had never heard of one until after the fire had destroyed the building. Whether or not the policy had been canceled was an issue of fact for the jury. The burden was upon the defendant to establish the fact and it has been settled against the contention of defendant. . An effective cancellation could not be made without notice to the plaintiff or to his duly authorized agent.
It is argued the entry made on the “Daily Report” indicates that notice was given to Logan, but even if that is granted it would be fruitless unless Logan can be regarded as the agent of the plaintiff. If he was not authorized by plaintiff to receive notice of a cancellation or unless he stood in such a relation to plaintiff that agency as to the transaction may be implied, a notice to him would be unavailing. The claim is that plaintiff had entrusted to Logan the -matter of keeping his property insured and therefore he must be •treated as the agent of the plaintiff. The only basis for the claim iof agency is that plaintiff telephoned to the agent of defendant, about the time the original policy expired, asking him to issue the policy in question, and that he expected Logan to issue the policy, and thus keep his property covered by insurance. The fact that plaintiff requested an agent of an insurance company to renew a policy and thus continue the insurance on it, a not uncommon practice, did not make the defendants the agent of plaintiff to receive, notice of cancellation. Besides, Logan expressly stated in his testimony that there was no such relationship; nor that he was to take care of his insurance business, nor that plaintiff depended on him to do so, and plaintiff himself testified that his part in the transaction was merely to telephone the agent requesting the renewal of the policy before- it expired, and that he had previously asked him to take care of his insurance in that way. The court correctly advised the jury that:
“If you find that said J. Wilbur Logan was the agent of plaintiff and authorized to receive notice of cancellation, and that the company did cancel the policy and notify said Logan of such cancellation prior to the fire in question, then that would be a cancellation and be binding on the plaintiff, even though said Logan may not have communicated such notice to the plaintiff. On the other hand, if you do not find that said Logan was the agent of said plaintiff and authorized to receive notice of cancellation, then any notice of cancellation that may have been given to said Logan would not be notice to or binding upon the plaintiff.”
The finding of the jury determines that Logan was not the agent of plaintiff to receive notice of cancellation, and the. evidence furnished a good basis for the finding.
Error is also assigned on the ruling of the court in permitting secondary evidence of the provisions of the policy, when no showing was made that plaintiff had made efforts to obtain possession of the policy. This contention is without merit, as the defendant concedes that it had in some way gained possession of the policy and had destroyed it. Why should the plaintiff go through the useless task of a search for a policy or make a showing that it could not be produced when it is admitted that defendant had already destroyed it?
The judgment is affirmed. | [
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The opinion of the coure was delivered by
DawsoN, J.:
These consolidated cases are appeals from judgments of the district court of Labette touching the correctness of its determination of a matter brought to it from the probate court for review, and also its determination of an action on a related matter which originated in the district court.
In No. 23,734, the plaintiff,'Ellen Dunn, administratrix of the estate of her deceased husband, P. L. Dunn, brought an action in the district court, alleging that P. L. Dunn and S. G. Dunn had formed a partnership in 1911 to engage in mercantile business in Chetopa, that pursuant thereto the “Dunn General Store” was conducted by these alleged partners for several years, and that owing to physical disability P. L. Dunn was unable to participate in the management of the store and it was conducted by defendant S. G. Dunn. Plaintiff alleged that after the death of P. L. Dunn and her appointment as administratrix she cited defendant to appear before the probate court to administer the partnership estate, and that defendant appeared and denied the existence of the partnership and refused to give bond and administer. Plaintiff thereupon gave a statutory bond in the sum of $25,000 to administer the alleged partnership estate, and demanded of defendant the surrender of the partnership property. Defendant refused to deliver. Hence, this lawsuit to determine the fact of partnership and adjudicate the title to the property.
Defendant’s demurrer to this petition was sustained, and plaintiff appeals.
In case No. 23,895, the record shows that plaintiff had filed a petition in the probate court which alleged her appointment as ad-ministratrix and alleged the existence of a partnership, consisting of the defendant and the decedent whose estate she was authorized to administer, alleged the citation of defendant to appear and give bond to administer as surviving partner, and that defendant had filed an affidavit in the probate court denying the existence of the partnership; that plaintiff consequently executed a bond for $25,000 to administer the partnership property, and alleged her demand for the possession of the partnership assets; that defendant refused to surrender the property; and concluded with a prayer that defendant be cited before the probate court for contempt. She also alleged that defendant had filed a demurrer to her pleadings, which the probate court sustained. Plaintiff appealed to the district court, which reversed the judgment of the probate court and remanded the cause with directions to set aside its ruling on the demurrer and for further proceedings. From this judgment the defendant appeals.
Touching the first of these appeals, No. 23,754, it should be noted that the trial court’s original jurisdiction was invoked to determine questions which it alone' could decide. The probate court could not adjudicate the controverted question of the fact of partnership; it could not adjudicate the title to the property. (Leyerly v. Leyerly, 87 Kan. 307, 124 Pac. 405; Yockey v. Yockey, 95 Kan. 519, 522, 523, 148 Pac. 408.) Counsel for defendant suggest no defect in the matter pleaded in plaintiff’s petition and we discern none. It stated a cause of action, and all that is really urged in support of the demurrer is that it was essentially the same cause of action as the one appealed from the probate court, which is No. 23,895. This contention is unsound. The original action in the district court was a straight lawsuit involving a plain issue which no other court could entertain, while the ease appealed from the probate court only concerned the question whether defendant had stated a good defense to the citation for contempt. The demurrer admitted the truth of the material matters alleged in plaintiff’s petition and it should have been overruled.
Touching No. 23,895, which was the case appealed from the probate court to the district court, and which the latter court reversed, it appears that the plaintiff administratrix proceeded in substantial conformity with the statute; she gave defendant an opportunity as surviving partner to give bond 'and close up the partnership estate (Gen. Stat. 1915, §§ 4515 et seq.); and when he failed to undertake that duty and privilege, she gave the requisite bond, Snd she was thereupon entitled to its possession, and when defendant resisted her right thereto, a citation against him (Gen. Stat. 1915, § 4522) was properly issued. His mere affidavit denying the existence of the partnership did not raise an issue justiciable in the probate court, and his demurrer was not good against the allegations of the petition. The bond of the administratrix protected his just rights, and neither on his own determination of this disputed matter nor on the probate court’s futile ruling on the demurrer could the main controversy between the parties be determined. Therefore the trial court’s judgment reversing the decision of the probate court was correct. As a practical matter the probate court might well have deferred its ruling on the citation until1 a court of competent jurisdiction had determined the fact of partnership and the controverted title to the property; but defendant was bound to surrender the property unless he had timely invoked the jurisdiction of the district court to adjudicate between himself and plaintiff the main question in dispute.
The decision of the district court in No. 23,734 is reversed, and its decision in No. 23,895 is affirmed. | [
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The opinion of the court was delivered by
Johnston', C. J.:
In this action plaintiff, recovered damages for a breach by the defendant of his promise to marry her, and from the judgment defendant appeals.
Upon the first trial the jury returned a verdict in favor of plaintiff, but the trial court granted a motion for a new trial and that ruling was affirmed in this court. (Hughes v. Vossler, 110 Kan. 279, 203 Pac. 1107.) The second trial resulted in another verdict for the plaintiff, which has been approved by the trial court, and the defendant insists that it was not warranted by the evidence.
It is not contended that there is an absence of evidence of a promise to marry but rather that the testimony of plaintiff to the effect that such a promise was made is so at variance with her acts and conduct as to be unworthy of belief. Plaintiff testified that she had been well acquainted with the defendant for about five years before entering into the contract of marriage; that he had proposed marriage several times before she agreed to marry him; that he had taken her to entertainments, gave her a number of valuable presents, and was very affectionate in his relations with her; and further, that on December 6, 1919, he renewed his offer of marriage which was then accepted. She testified that January 2, 1920, was fixed as the wedding day, and that he gave her money to pay for a wedding dress, but that when she met him on January 30, 1920, and told him of a report that she had heard that he was going to marry another, he replied that he was already married. At the time of the claimed engagement the parties had passed the period of adolescence, both being about fifty years old. Each was capable of making a valid marriage contract at the time it was alleged to have been made. She had been married twice but had been divorced from her former husbands, and he had not married until after the alleged betrothal. Defendant testified that there was no promise of marriage; that while he roomed and boarded with plaintiff and paid her for rent and board and had other business relations with her, the matter of mar-raige was never discussed between them. It is contended that as the correspondence between the parties did not refer in terms to a contemplated marriage, and further that the fact that no reference was even made to the contract in the letters exchanged between them after the alleged contract, and the open rupture between the parties about two months later, refutes plaintiff's evidence that a contract had been made. The plaintiff’s testimony in support of her claim is direct and positive and that of the defendant is equally positive that there was no promise to marry. The jury it appears gave credence to that of the plaintiff and disbelieved that given by the defendant and the trial court has added its approval to the verdict.
There were some circumstances in the oral testimony and some in the letters which tend to support the claim of plaintiff. It is conceded that defendant made substantial presents of money to her, amounting in all to about $3,000. She testified that $50. of that amount was for the purchase of a' wedding dress. He was engaged in the oil business and boarded and roomed with her at Osawatomie for a considerable time, and when she moved to Kansas City to attend school he visited her frequently, and his own testimony indicates that there was a close intimacy between them. In his letters he used expressions of endearment and in one of them said to her: “Buy what clothes you want. As long as oil is going up I will not be stingy with you. If you want any more money drop me a line.”' While she was attending business college and giving special attention to bookkeeping, he wrote her saying: “Well, I hope you will graduate before long, then you can come down and keep books for me and do my cooking.” The direct testimony of plaintiff that a promise was made, supported as it is by a number of circumstances, believed as it was by the jury, and which received the approval of the trial court is, under the rule that governs on an appeal, conclusive on this court.
Some objections are made to rulings on the admission of testimony. The plaintiff was asked on cross-examination to give the total amount of money she had received from defendant during the time she had been acquainted with him, to which an objection was sustained. In view of the fact that the many payments of money made by him to her for rents, board and in business transactions, as well as presents given her, had been testified to in detail by the plaintiff in the cross-examination, this ruling cannot be regarded as material error.
Nor was there any error in excluding the evidence as to the amount she had paid for a house which she had purchased.
An objection was sustained to a question asked of witnesses who had executed a lease to defendant as to whether plaintiff had assisted in obtaining the lease. This was manifestly immaterial to the case and its exclusion cannot be regarded as error.
To a question why plaintiff did not, in a letter written by her to defendant after the marriage contract was made, make any reference to the prospective marriage, an objection was sustained. The letter was an acknowledgment of the payment of rent which defendant had made, a business letter in fact. In addition to acknowledging the payment she told him of the serious sickness of her mother, of the treatment given the mother by doctors and a nurse, but no mention was made of the deferred wedding. This inquiry might well have been allowed but we cannot hold that the exclusion of the proposed evidence as to her reasons for not extending her letter and discussing the contract and its performance is so material as to amount to a ground of reversal.
Finding no substantial error, the judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The defendant appeals from a conviction of wounding and giving great bodily harm to one with a riñe, and assigns as error the giving and refusing of certain instructions, the reception of certain evidence and the refusal to discharge the defendant.
The information charged that the defendant unlawfully, feloni-ously and with malice aforethought made an assault on George Sharp with a loaded rifle which he unlawfully and feloniously shot at, against, upon and into the body of George Sharp thereby inflicting upon him a severe and dangerous wound with the intent to kill him. It will be seen that this charge was drawn under section 72 of the crimes act, old section 38. (Gen. Stat. 1915, § 3399.) The jury found the defendant guilty of “wounding or causing great bodily harm to said George Sharp under sec. 3403" (old section 42) of the General Statutes of 1915. Section 76 provides that:
“If any person shall be maimed, wounded or disfigured, or receive great bodily harm, or his life be endangered by the act, procurement or culpable negligence of another, in cases and under circumstances which would constitute murder or manslaughter if death had ensued, the person by whose act, procurement or negligence such injury or danger of life shall be occasioned shall, in cases not otherwise provided for, be punished by confinement and hard labor not exceeding five years, or in the county jail not less than six months.”
The penalty under section 72 is confinement for a term not exceeding ten years. It is insisted that there is no evidence whatever on which to base the verdict of the jury; that if the defendant fired the shot which injured the prosecuting witness he was guilty of the crime charged and nothing else, but if he fired the shot he must have done so with the intent to kill, and the jury in finding the defendant not guilty of this offense reached a compromise verdict without evidential basis.
According to the testimony of the prosecuting witness, after hearing certain whistles and calls he took his lantern and went downstairs, got an old army musket from a woodshed and started back into the house, and heard “a little scuffle on the ground.”
“There is a good large elm tree standing there; and right at that John Wright turned — just kind of stepped around the tree that way — and raised a rifle and shot me. . . . He just lent over sideways and it showed him full down along here, and about that far down, and that is all the further down I could see to do any good. . . .
“Q. Oh, all right go ahead and tell what occurred. A. I have already said he raised the rifle to his shoulder and shot me.
“Q. How many shots did he fire? A. One shot.
“Q. One shot; did the bullet strike you? A. Yes, sir, it struck me.”
In the written confession made by the defendant, he said among other things:
“I then walked out to George Sharp’s home. George and family were home. George came to the door and I shot him with a 22 rifle. There was only one shot fired.”
As one is presumed to intend the natural and probable consequences of his acts, and as the foregoing were the only versions of the shooting, the record fails utterly to establish anything in the , nature of culpable negligence. It does clearly establish an intentional shooting with a deadly weapon. However, the conviction under which the information was drawn would require malice, assault with a deadly weapon and an intent to kill, maim, rob, or commit some other felony, and while the circumstances detailed indicated all these things clearly .enough to warrant a conviction, still it might possibly be that the wounding took place by the act of the defendant under such circumstances as would have constituted murder or manslaughter if .death had ensued. In The State v. Burwell, 34 Kan. 312, 8 Pac. 470, it was held that when the information is drawn under section 38, and the facts also constitute manslaughter if death had ensued under section 42, the jury may find the defendant guilty of either offense if the evidence will justify. In The State v. Countryman, 57 Kan. 815, 48 Pac. 137, the informa-' tion was drawn under section 38, but the conviction was had under .section 42, and it was held that the refusal to instruct the jury that the state must prove specific intent to kill the particular person named in the information is harmless error. The rule announced in The State v. Burwell, supra, was followed. In The State v. Ryno, 68 Kan. 348, 74 Pac. 1114, the defendant was charged under section 38 and convicted under section 42. It was said with reference to The State v. Burwell:
“We see no reason to change the rule which has been so long followed and which no doubt guided the court in the submission of the case.” (p. 351.)
The charge in The State v. Ireland, 72 Kan. 265, 83 Kan. 1035, was under sections 38 and 42, and the conviction was under the latter section. It was held that as section 42 makes no degrees of murder or manslaughter there was no necessity to instruct upon the different degrees of murder of such offenses. The court discussed the distinction between the two sections in The State v. McCullough, 96 Kan. 453, 152 Pac. 766, and apparently approved an instruction of the trial court that section 38 requires malice and intent to kill, while the other section defines a lower grade of offense in which the element of malice aforethought is not included; and in order to sustain a ponviction under the latter section it is only incumbent upon the state to prove that the assault was made under such circumstances as would have constituted manslaughter if death had ensued. The State v. Burwell and The State v. Countryman, were followed and approved. It appears, therefore, to be thoroughly settled that when'the shooting results in wounding, and the elements of malice and intent to kill are not shown, 'a conviction may be had under section 42.
Complaint is made that the confession was received over the objection of the defendant who contended that it was procured by third-degree methods, but other persons present when it was made testified to its voluntary character and the court took this view, and by its conclusion we are necessarily bound.
Fault is found for covering section 41 in the charge (Gen. Stat. 1915, § 3402) which section covers an assault with an intent to commit felony, but leaves out malice aforethought, but as this section works the same penalty as section 42 and is as well within the purview of section 38 as the latter section, we do not see that any harm could have come to the defendant from including section 41 in the charge.
On the motion for a new trial there was presented an affidavit of one of the jurors stating that he voted “Not guilty” when the jury retired to their room, but finally, in order to reach an agreement, he consented to vote for the charge that would not send the defendant to the penitentiary and then it was agreed amongst the jurors to return the verdict which was returned, and he stated he was not entirely satisfied that John Wright fired the shot in question. Attention is called to this affidavit in connection with a complaint touchr ing instruction No. 15 given by the court which concluded by telling the jury that after considering the whole case and consulting with each other “yon cannot acquit the defendant unless all of the jurors entertain a reasonable doubt of his guilt.” This same instruction was given full consideration in The State v. Wimer, 97 Kan. 353, 360, 155 Pac. 7, and the sentiments there expressed are still maintained, but while such an instruction is not to be commended, it was not materially prejudicial. Once more it must be said that jurors cannot impeach their verdicts by. disclosing the mental operations by which they reached them.
In the charge touching the defendant’s alibi, the jury were told that testimony had been introduced to show “that the defendant was at another place when the crime charged in the information was committed, and that the defendant did not participate in the crime.” This is criticized as if it told the jury that the crime charged in the information was committed. What then? Testimony certainly showed its commission, the only question being the identity of the culprit; hence, there was no error in using this language. With the charge that if the jury believed from all the evidence beyond a reasonable doubt that the defendant committed the offense charged or any lower offense within the one charged it was their duty to convict, fault is found that the court did not explain the distinction between section 75 and section 76, especially as such an instruction was requested and refused, but we perceive no error in this regard.
The stock instruction on circumstantial evidence was properly refused because all the evidence touching the shooting in this case was purely direct evidence.
The court was requested to instruct that the jury had no right to guess at or surmise the guilt of the defendant and that he could be convicted only when each juror was satisfied of his guilt beyond a reasonable doubt. This was no improvement on the definition of “reasonable doubt” given by the court, and in the opinion of the writer all definitions of the plain expression have failed to elucidate its meaning.
On the motion for a new trial, an affidavit was presented showing what a witness named George Trackwell would have testified to had he been present at the trial, but there was no showing of any diligence to secure his attendance or any reason for failure so to do.
The strangest thing about the entire case is the absence of any apparent motive for the commission of the crime charged. The defendant was on good terms with the victim of his assault, and had been paying considerable attention to his young daughter with apparent approval of the family. Some question had arisen about his being of pure Caucasian race, but that seems to have been settled satisfactorily, and at the meeting between him and the family on the evening of the shooting everything appeared harmonious and friendly. But the story of procuring a 22-caliber weapon, the purchase of the shells, the defendant’s connection with the car on the evening in question and the way the shells were scattered, the direct evidence of the prosecuting witness and the equally direct statement contained in the confession of the defendant all taken together are so conclusive as to relieve the matter of any serious doubt. The defense has been thoroughly made and skillfully presented, but being unable to find any material error we are compelled to affirm the judgment, and it is so ordered. | [
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The opinion of the court was delivered by
JOHNSTON, C. J.:
This action was brought upon a note given by defendants in the purchase of a tractor in which the title thereto was reserved to the plaintiff as security for the payment of the purchase price. Plaintiff asked for a recovery upon the note and for a foreclosure of his security on the machine sold. The result of the trial before a jury was a verdict and jrrdgment for the defendants. The plaintiff'appeals.
The ground of error principally relied on is that the court in its instructions did not fairly submit the issues to the jury. The defendants were dealers in tractors and automobiles at Hillsboro, and had previously obtained a tractor from plaintiff 'for which payment had been made. Thinking they had a customer for another, they phoned the plaintiff at Abilene and 'asked him if he would sell them one. He replied that he had one near Salina that had been used in demonstrating to a proposed purchaser, and that he could furnish it. Pie was asked to drive it over to Hillsboro, a distance of about seventy miles, and he did so. When it was delivered it was covered with dust and there was some grease on the axles and bearings, which attracted the attention of the defendants, and plaintiff said that it was a new one, except that it had been used in demonstrating, and in driving from Salina to Hillsboro. The defendants accepted the tractor .and settled with the plaintiff, after making certain discounts that had been agreed upon. They gave plaintiff a check for 8100 and executed and delivered the title note on which the action is brought. They cleaned the tractor and offered it for sale to the prospect they had, but it is said that he declined to buy it for the reason that it was not a new tractor. After a number of months they placed the tractor in the garage of another and declined to make payment. The defendants admitted the execution of the note but claimed that the plaintiff had agreed to furnish a new tractor and that that furnished was a secondhand one. Further, they claimed that they were acting as subagents of plaintiff, and in taking the tractor they were acting for him and were to receive á commission of 8300 in case a sale was made. They further alleged that the note was no more than a memorandum of the delivery of the tractor, and some evidence of that kind was permitted to be introduced. There wras a further averment that plaintiff had agreed to take the tractor back and had exercised acts of ownership over it. The instrument given to plaintiff was an ordinary chattel or title note which contained no stipulations as to agency or commissions, and the making of it was expressly admitted.
In submitting the case to the jury the court rightly instructed that defendants having admitted the execution of the. note were not allowed to dispute its terms or claim that it was not given in consideration of the purchase of the tractor described in the note and therefore the burden of proof in the case was placed upon the defendants. The pertinent part of the challenged instruction is:
“You are instructed that if you find and believe from the evidence that the plaintiff in making sale of the tractor in question falsely represented that the tractor was a new tractor, and that the defendants at the time same was delivered and at the time of the giving of the note in question had not and were not able to inspect and examine said tractor to determine whether the same was a new tractor or not and further find and believe from the evidence that said tractor was not a new tractor but that the same was a secondhand or used tractor, and further find and believe, from the evidence that when defendants discovered the fact that said tractor was not a new tractor that defendants gaVe plaintiff prompt notice to take said tractor back, and that plaintiff after such notice accepted said tractor or exercised acts of ownership over the same, that then and in such case you are instructed that the contract itself so far as said tractor is concerned would be rescinded, and defendants would in such case be relieved from the payment of the price that was agreed to be paid for said tractor. . . . On the other hand, if you find and believe from the evidence that said tractor was a new tractor and the kind that plaintiff agreed to sell and defendants agreed to purchase from plaintiff, or if you find and believe from the evidence that defendants before the execution of the note in question did have opportunity to examine said tractor and did in fact examine it and accept it before the execution of said note, relying upon their own judgment from such inspection and examination that then and in such case your verdict and finding should be for the plaintiff for whatever you find to be due upon the note in question with all the interest due thereon.”
The issues in the case were not fairly or properly presented by the instructions. The jury were in effect advised that the rescission of the contract depended on whether the tractor was a new or a used one, although the defendants knew when they accepted it • and gave their note for it that it had been used for a demonstration and in .driving it about seventy miles for delivery. It necessarily became dirty and somewhat greasy on the trip, and this condition was not only evident but was a subject of comment by the defendants and others when it arrived and before settlement for it was made. They were then informed that it had not been used except for a brief demonstration, in hauling two harvesters and in driving it to Hillsboro, and with this knowledge the tractor was accepted and the note given. The defendants say. that they bought a new tractor, and one of them said his idea of a new tractor is one “that has been sent out immediately from the factory and has never been used in any way.” The court appears to have submitted the case upon that theory and not upon the one shown by the testimony and in fact conceded' by the defendants, that they purchased the tractor and executed the note knowing it had been used at least to the extent stated. There was no substantial testimony that it had been otherwise used, and one of the defendants in his testimony stated that he did not know that it had been used more than plaintiff said it had. The plaintiff was entitled to instructions based on the evidence as to use about which the defendants had information before the transaction was closed, but the jury were in effect told that the contract was not binding unless the tractor was absolutely new and had never been used in any way, not even in demonstration or in driving it from depot to place of delivery. It was not a question whether the tractor was new or old, a used or an unused one, but whether the one delivered and conceded to have been used for two purposes had been accepted with knowledge of such uses or whether there had been any material misrepresentations as to the extent that it had been used.
There is some.dispute as to whether defendants had an opportunity to inspect the tractor before the sale was consummated, but the evidence in the record leaves little ground for contention on that score.
It was also claimed that since the sale plaintiff had accepted a return of the tractor and had exercised acts of owmership over it. Upon that question the evidence is conflicting, and hence the request by plaintiff for judgment cannot be given. The plaintiff admits making efforts to help defendants find a purchaser, but he insists that he never accepted a return of the tractor. Under the terms of the note the plaintiff retained ownership and right of possession until the note was paid, and that in case of nonpayment, removal, sale or incumbrance of it without written consent, or if plaintiff deemed himself or the debt to be insecure, he might retake and sell the property and apply the proceeds beyond the expenses of sale to the payment of the note. The taking of possession under the terms of tile note, if it had occurred, would not amount to a waiver of the defendants’ obligation to pay the note nor be regarded as a ground of rescission. (Christie v. Scott, 77 Kan. 257, 94 Pac. 214; Threshing Machine Co. v. Nash, 103 Kan. 871, 176 Pac. 628.) Whether or not there was an agreement to take back the tractor and cancel the debt or that after the sale the plaintiff exercised acts of ownership over it, cannot be determined upon the conflicting evidence. It may be said, however, that the taking of possession because of the violation of the terms of the security and the enforcement of defendants’ obligation did not amount to a revocation of the sale or a bar to a recovery on the note. Upon this feature of the case no instruction was given.
For the error in the instructions the judgment is reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Mason, J.:
George F. Schultze was employed by the Farmers Union Cooperative Shipping Association, of Natoma, of which he was a member, as manager of its elevator at that place. His duties included the buying and selling of grain, he fixing the price. On August 9, 10, 11 and 12, 1920, he delivered to the elevator a fraction over 795 bushels of wheat for which he paid himself from the funds of the association $1,947.75, and on October 18, 1920, he delivered a fraction over 195 bushels for which he paid himself $351.60. On November 22, 1920, the association discharged Schultze and thereafter brought this action against him for $418.55, claiming that what he had received for his wheat was excessive by that amount. A verdict was returned in his favor, on which judgment was rendered, from which this appeal is taken.
The plaintiff contends that the evidence showed conclusively that it was entitled to recover. No special findings were made, and so far as necessary to support the judgment it must be assumed that the jury disbelieved all evidence where a question of veracity or, opinion was involved and resolved in favor of the defendant all debatable inferences from admitted or established facts.
The instructions are accepted as correct by both parties. They included statements that the defendant owed a duty to the plain tiff'to deal fairly and in good faith with it and had no right to make an individual profit out of transacting its business. They did not in terms refer to market value, but submitted the vital issue in these words:
“If you believe from the evidence in this case that the defendant sold his wheat to plaintiff and paid himself more than he was paying or would have paid other customers selling wheat of the same grade, he would be liable to plaintiff for said amount, if any, he paid himself in excess of what he was paying or would have paid other customers for similar wheat, at that time.”
The defendant’s mental attitude — the honesty of his intentions — • was a matter on which the decision of the triers of the facts is final. The only relief asked is the recovery of the amount by which the price received by the defendant for his own wheat exceeds what as' manager, he had a right to pay, which the plaintiff in its brief assumes to have been the market price at Natoma. The question to be determined is therefore whether the evidence, rejecting such portion as the jury may have discredited, compels the conclusion that the defendant paid himself more than he was paying or would have paid others under the same circumstances.
The defendant as the plaintiff’s agent paid himself $2.46 a bushel for the wheat he delivered in August. He testified that in arriving at this he averaged the market price at Kansas City for the four days, making $2.60%, and that the plaintiff was given a clear profit of 4% cents a bushel. There was evidence that the expense of shipment to Kansas City was 10% cents. A former manager of the association testified that “in a way, the plaintiff’s elevator bought wheat on a different basis from those who were buying for profit;” that “three cents per bushel is not considered a fair profit on $2.50 wheat but is what we figured when wheat was 50 or 60 cents. When war time came we took more margin on high-priced wheat.” Two buyers in Natoma (one of whom bought under outside instructions as td price) testified that at the time of the transaction here in question they were paying about $2 for wheat. There was other testimony tending to show that to have been the approximate local market price, but obviously this evidence taken altogether was not absolutely conclusive on the subject. The market price at Kansas City was an element to be considered. (Evans v. Moseley, 84 Kan. 322, 114 Pac. 374.)
From August 7 to 17, 1920, the defendant bought no wheat except his own, because the scales were out and, as he said, “I could not expect customers to weigh on my competitor’s scales and dump in my elevator.” He admitted on the stand that on August 7 he bought two loads of wheat at $2.05 or $2.10 while the Kansas City price was about $2.60. Being asked by the plaintiff what the price was then he said he could explain the price of the two loads, but was not at the time asked to do so. Testifying in his own behalf he said, “I probably had some bids’over the phone that influenced price on the 7th.” He also said: “In fixing the price of wheat I took into consideration my bids, the Kansas City market and my hedging sales.” The effect of all this testimony was for the jury and trial court, and we cannot say that the verdict and judgment were against the admitted or conclusively established facts.
The defendant testified that he paid $1.80 for four loads of his own No. 1 wheat on October 18, 1920, and on the same 'day paid to another seller $1.75 for No. 2 and $1.72 for a load of weedy wheat. Here the disparity is. obviously not so great as to suggest unfairness.
It is unnecessary to detail other circumstances relied upon by the plaintiff as supporting its view, for the inference to be drawn from them was a matter for the determination of the jury and trial court.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
A partnership known as the S-H-E Petroleum Company, owning an oil and gas lease on a quarter section, entered into a written contract with J. W. Craig for the purchase by him of their rights in the south half thereof for $11,200. This action was brought by the company against Craig for the specific performance of the contract. The defendant pleaded that he was induced to execute it by false representations. A demurrer to his evidence was sustained, and he appeals.
The defendant testified that in the course of the negotiations leading up to the contract the plaintiffs, referring to a well which they were drilling on the north half of the quarter section, said to him: “We have got a commercial well if we don’t go an inch deeper, but we are going on down and see if we can find more oil”; that one of them said “they were somewhere around 2,800 feet and they would go down until they found a better well”; that he believed these statements and relied upon them. The plaintiffs’ evidence showed that at the time of the contract the well referred to had reached 2,858 feet and later was drilled to a depth of 3,200; that it was not considered paying and was plugged.
This evidence taken alone was sufficient to present the issue of fraud and would have carried the defendant’s case past the demurrer except for the fact that the written contract provided that the purchase price in excess of a cash payment of $1,000 should be paid “upon completion of well now drilling on this quarter section to a depth of 2,900 feet unless oil is found in commercial quantities at' a lesser depth.”
With the written contract in effect providing that nine-tenths of the purchase price should be payable when oil should be found in commercial quantities in the well then drilling (or when the well reached a depth of 2,900 feet), we do not think the defendant should be heard to say that he was led to sign it by the belief, induced by the statement of the plaintiffs, that the well was already a commercial one. He cannot say that with effect because he must have known the contents of the contract, no claim being made to the contrary even if one could be asserted, and in our judgment the provision referred to is entirely inconsistent with the existence of a commercial well at the time of its execution. Knowing the fact, he cannot recover because of a misstatement concerning it. (26 C. J. 1136.)
There was also evidence of a representation that there was 150 feet of oil in the hole, but no one testified that this was untrue. Other misrepresentations alleged were not supported by the evidence.
The defendant asserts that error was committed in the refusal to impanel a jury, but if so it was nonprejudicial, inasmuch as in the view we take there was nothing to submit to one.
The judgment is affirmed. | [
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The opinion of the court was delivered by
HopKINS, Jr:
The defendant appeals from a judgment of the district court granting her.husband a divorce on the ground of abandonment.
Plaintiff and defendant were married April 14, 1891, and lived together in Miami county until August 10, 1918, when, it is alleged by the husband, the defendant willfully abandoned him.
Three children were bom of the marriage — two sons and a daughter. One son was killed in service in France during the World War.
The husband is a speculator in stock, and according to his own testimony, has been absent from home at least two-thirds of the time, covering a period of twenty-five years. A daughter-in-law (wife of the son who died in France) lived with the family from 1914 to 1917.
The plaintiff claimed, that the night before his wife went to Kansas City she said she “was going out to make her own living”; that “all she asked was to just turn her loose,” that “she had no love for me, and never did have, and that her beauty and pretty form would carry her through the rest of her life, and if I could help it to help myself.”
Asked what he said when his wife stated that she was going to Kansas City, plaintiff stated that he didn’t think he said anything, at least, he had no recollection of anything he had said to restrain or persuade her from going. It is apparent that, if there was any intention on the part of the wife to abandon her husband at the time claimed by him, he made no effort to prevent it.
A daughter-in-law, who had resided with the family from her marriage to the son in 1914 to 1917, a.short time previous to the alleged' abandonment, testified that she had never heard Mrs. Banta use a harsh word toward-the plaintiff, but that she had, on frequent occasions, heard plaintiff “quarrel at his wife.”
The evidence shows that the defendant was in poor health and grieved a great deal because of the loss of her son, and that her leaving Paola in August, 1918, was according to a prearranged plan of the family. ■ v
It appears that, previous to the alleged abandonment, the daughter and daughter-in-law had perfected arrangements to live in Kansas City, Mo., which is not a great distance by rail from Paola where the parties resided. The family occupied a home of nine rooms in Paola; that, because of the absence from home of the husband so great a portion of the time, when she was necessarily left alone, it was agreed between her husband and herself, and concurred in by the other members of the family, that she should go to Kansas City and live with her daughter and daughter-in-law.
The evidence further shows that within three weeks after the defendant went to Kansas City, on the 10th of August, the plaintiff visited her there with the family and occupied the same room with her. It further shows that this continued at frequent intervals every week or ten days, whenever plaintiff was in Kansas City up until a little over one year previous to the filing of the petition in this case. It shows also that on frequent occasions when defendant learned that plaintiff was to be in Paola, she returned there and occupied the same room with him. It shows that the parties had conversations relative to the sale of the home in Paola and the purchase of a home in Kansas City; that the plaintiff agreed to purchase a home in Kansas City; that he went to look at houses in Kansas City, with some member or members of the family for the purpose and with the view of considering the purchase of a home; that the plaintiff found a purchaser for the Paola home and that the defendant joined in the deed without any other protest than that she thought they might not be satisfied in Kansas City and might want to return to their Paola home, that she made no claim for any part of the proceeds. "
Following the sale of the Paola home the defendant continued to return to Paola and meet her husband, and occupied the same room with him as his wife. He procured a small farm near Paola on which lie built a barn in which he lived.
The trial in the district court took place December 5, 1921, plaintiff’s petition having been filed the first of August preceding. The plaintiff was asked:
“Q. When was the last time that -Mrs. Banta was down at your place where you are stopping now, to stay all night with you? A. It has been over a year ago.
“Q. How much? A. I could not recall it to memory. About a year, I should judge.”
It will readily be seen from plaintiff’s own testimony that he lived and cohabited with his wife up to within eight months previous to the filing of the petition in this case.
Four or five days after the filing of plaintiff’s petition in Miami county, the defendant, not being apprised of such action, filed a suit for divorce against plaintiff in Wyandotte county. Her claim was that the plaintiff had been urging her to procure a divorce. Both parties had apparently arrived at the stage where they were willing to be divorced.
We do not believe that the evidence produced in this case warrants the granting of a divorce to either party. The marriage institution should not be lightly treated. Courts are reluctant to grant divorces unless the testimony is clear that the party applying is entitled to such a decree.
Where a man and wife have resided together for a period of thirty years and have reared a family which has grown to manhood and womanhood they should not seek a divorce unless on the most substantial ground. Section 7571 of the General Statutes of 1915 provides that “The district court may grant a divorce for any of the following causes: . . . Second, Abandonment for one year .” The evidence shows there was no such abandonment as is contemplated by the statute on which to base a decree for divorce, “to establish desertion three things must concur and must be proved; these are, cessation from cohabitation continued for the statutory period, intention in the mind of the deserter not to resume cohabitation, and the absence of the other party’s consent to the separation or misconduct on his or her part justifying the separation.” (9 R. C. L. § 140.)
It is admitted by both parties to this suit that cohabitation between them continued long after the alleged desertion, and up to within eight months of the time of the filing of the petition in this case. We are forced to the conclusion that there was no intention on the part of the wife to abandon the husband or not to resume cohabitation.
“It is the well settled general rule that to prove a desertion the separation must be shown to be against the will and without the consent of the complaining spouse, for a separation with the consent or acquiescence of the parties does not constitute desertion, no matter how long continued. So,, if a husband, not entirely blameless for the act, makes no effort to prevent his desertion by his wife, and acquiesces in and appears satisfied with its continuance, he is not entitled to a divorce on the ground of desertion.” (9 R. C. L. § 144.)
The record in this case shows that the absencl®: 'the wife was not against the will of the husband; it appears to have been with his consent and full acquiescence. The plaintiff failed to establish abandonment for one year, as is required by the statute before the court would be authorized to render a decree of divorce. The court has no power to prescribe a shorter period. (Phelan v. Phelan, 135 Ill. 445; 25 N. E. 751; 14 Cyc. 641.)
Upon the whole record, we conclude that plaintiff was not entitled to a divorce. The judgment is therefore reversed. | [
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The opinion of the court was delivered by
Mason, J.:
In an action begun July 7, 1921, the plaintiff recovered judgment on an account for goods sold, and the defendant appeals.
1. The goods were sold in Missouri, November 9, 1917, while both parties were residents of that state. The defendant moved to Kansas March 7, 1919. He contends that the action was barred by the three-year statute of limitations (Civ. Code, § 17). His 'theory is that the action began to run with the sale of the goods and was not interrupted. It was not barred by the ordinary Kansas statute, because that did not begin to run until he came into the state (Civ. Code, § 20). It was not barred by the specific provision that where a cause of action arising out of this state between nonresidents of Kansas is barred by the local law it is also barred here (Civ. Code, §21), because the Missouri statute of limitations (assuming it to be the same as ours; nothing being pleaded or proved to the con-tary) ceased to run when he left that state (Civ. Code § 20). In the situation presented “when the debtor leaves the state where the action accrued, before the claim is barred, and comes to Kansas, the ordinary statute of limitation of this state begins to run in his behalf; for the action is deemed to accrue within the meaning of section 17 whenever, after the maturity of the debt, the defendant comes into this state and thus gives the plaintiff an opportunity to sue him here.” (Perry v. Robertson, 96 Kan. 96, 99, 150 Pac. 223.)
2. Complaint is made of the introduction of entries in a ledger showing the items of the account sued upon, on the ground of their secondary character, and because they were made too long after the transactions referred to. They were made about thirty days after the sales, -from temporary daybooks which had been destroyed. The showing of the destruction of the books of original entry rendered the ledger admissible,, even if otherwise incompetent, which is at least doubtful. (The State v. Stephenson, 69 Kan. 405, 76 Pac. 905; 22 C. J. 870.) The interval between the sale and the transfer of the entries to the ledger was not so long as to require their exclusion. (Civ. Code, §384; 22 C. J. 882.)
3. A new trial was asked on the ground of newly discovered evidence, but no sufficient reason was shown for the failure to produce it at the trial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Action to enjoin the county officers from proceeding with the collection of taxes from plaintiff upon bonds of the United States which the latter had purchased and held during the year following the listing on March 1, 1920. The injunction was denied and plaintiff appeals.
Plaintiff had made three separate purchases of liberty bonds in 1920 in the months of April, ‘August and October, amounting to $30,000. In 1921 the taxing officers, against the protest of the plaintiff, listed the bonds for taxation as money owned on March 1, 1921, fixing the amount of the assessment in accordance with the time that the bonds had been owned during the preceding year. The assessment was made under the authority and rule prescribed in General Statutes 1915, section 11163, and the contention is that this section is unconstitutional and afforded no authority for imposing the tax.
The precise question presented was directly involved and definitely determined in Lantz v. Hanna, 111 Kan. 461, 207 Pac. 767. It was there held that the part of the statute providing for the listing and taxation of bonds of the United States violated the constitutional principles of equality and uniformity of taxation in this state as well as' the federal statute and constitution. It may be said that the decision in the Lantz case had not been made when the trial court decided that the bonds were taxable and denied the injunction.
Following that authority the judgment of the district court is reversed and the cause remanded with the direction to enter judgment in favor of the plaintiff. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This proceeding was brought by John B. Moore, to annul a judgment foreclosing a mortgage given by him to the defendants upon land in Grant county. On a demurrer to the petition the court ruled against the contention of the plaintiff, and he appeals.
The only question presented upon the appeal is as to the validity of the judgment of foreclosure and of the order confirming a sale made under the judgment. Plaintiff’s contention is that the judg ment and order are void because rendered by the district court of Kearny county, whereas the land upon which the judgment operated was situated in Grant county. The action in which the'foreclosure was decreed was brought in Grant county where the mortgaged land is situated, but on an application for a change of venue the' case was transferred to the district court of Kearny county, The question presented then is, Did that court acquire jurisdiction of the case by the change of venue or can the venue of a local action affecting an interest in or title to land be changed to a county other than that in which the land is situated? The statutes relating to venue determine the question. The legislature has provided that a local action affecting the title to land or an interest in it shall be brought in the county in which the subject of the action is situate. (Gen. Stat. 1915, § 6938.) The foreclosure proceeding.^ of course a local action and it was brought in Grant county in conformity with the statutory requirement. But must such a case be tried only in the county in which it is properly brought? It will be observed our statute does not, as do those of some states, require that the action shall be tried in the county where the land lies, but only that it shall be brought there. We have another statutory provision affecting venue, and one equally as obligatory as the one referred to. It is that in all cases a change of venue must be granted where it is shown that a fair trial cannot be had in the county where the suit is pending, or where other statutory grounds for a change are shown to exist. (Gen. Stat. 1915, § 6947.) This provision follows the ones which fix the venue of all civil cases, and instead of making an exception of local actions it specifically provides that a change may be had for good cause shown in all civil actions. It is not suggested that the provision for a change conflicts'with any constitutional limitation nor that there is any lack of power in the legislature to prescribe that the venue of actions properly begun may be changed and the case tried in a county other than where it was brought. Manifestly the legislature intended that a case should not be tried in a county where either party could not have a fair trial nor before a disqualified judge. It is said to have been the legislative purpose that one dealing in land should not be required to inquire as to the title thereto outside of the county in which it lies. Under our system of registration a record of the title or of anything affecting the title to land is kept in the county where the land is situated. To further this purpose the legislature made the requirement that suits relating to interest in lands should be brought in the county where it lies. One purchasing or contracting for an interest in land may by an examination of the records in that county obtain notice of any instrument or of any judicial proceeding relating to the title to the land. Now an examination of the records in the office of the clerk of the district court of Grant county would have disclosed that a foreclosure action had been brought in Grant county and would also have disclosed that it had been transferred by a change of venue to Kearny county, and anyone having this notice could then have ascertained in Kearny county the nature of any judgment rendered there. The question of jurisdiction, however, depends upon the statutory provision and, as we have seen, the legislature did not provide that a case affecting real estate must be tried in the county where it lies, but only that it shall be commenced there. The provision that the venue of the case might be changed to another county gives the court to which it is transferred jurisdiction to adjudicate the issues as completely as the court in which the case was brought could have done if no change had been made. In Hazen v. Webb, 65 Kan. 38, 68 Pac. 1096, it was in effect decided that a change of venue can be had in a local action of this kind, and that when the venue is changed the court to which it is removed acquires full jurisdiction and may render any judgment which the court in which it originated could have rendered. It has been held that even a constitutional provision to the effect that a case for the recovery of land shall be brought in the county where it lies does not prevent a change of venue authorized by statute, and that the provision fixing the place in which it shall be brought does not imply that it shall be tried there. (Hancock v. Burton, 61 Cal. 70.) To the same effect is Duffy v. Duffy, 104 Cal. 602. See, also, Campau v. Dewey, 9 Mich. 381; 40 Cyc. 120. In a note in Ann Cas. 1912 B, 534, it is said that the above holding is supported by all the authorities.
The cases which counsel for plaintiff cites and on which he relies, Neal v. Reynolds, 38 Kan. 432, 16 Pac. 785, and Martin v. Battey, 87 Kan. 582, 125 Pac. 88, do not sustain his contention. They refer to a lack of jurisdiction in local actions which have been brought in a county other than where the land is situated. When so brought that court is of course without jurisdiction to render judgment or make any order other than for a dismissal of the proceeding. The question of whether a case properly brought can be transferred to another county by a change of venue in compliance with the statute regulating changes of venue was not considered.
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The opinion of ,the court was delivered by
Fromme, J.:
The present claim for relief arises from an automo bile collision in Jackson county, Kansas, involving an automobile driven by Deane W. Barr, a resident of Jackson county, and one driven by William G. MacHarg, Sr., a resident of the state of Michigan. Both drivers were killed in the accident.
The plaintiff is the widow of Deane W. Barr. She is the duly appointed, qualified and acting administratrix of his estate in Kansas. The defendant, William G. MacHarg, is a resident of Wayne county, Michigan, and is the duly appointed, qualified and acting administrator of the estate of William G. MacHarg, Sr., by appointment of the probate court of Wayne county, Michigan.
The present claim for relief was filed in the district court of Jackson county, Kansas, where the collision occurred, by plaintiff Eunice Barr pursuant to K. S. A. 60-1901, et seq. to recover damages and losses sustained by reason of the wrongful death of Mr. Barr.
The foreign administrator filed a motion to dismiss the action. The district court sustained the motion on the ground the district court did not have jurisdiction of the subject matter or of the parties. The court in a letter of decision said:
“It seems to the court that K. S. A. 60-308b does not change substantive law to the State of Kansas wherein the Probate Court is held to have exclusive original jurisdiction of claims against a decedent’s estate.”
On appeal to this court it is stipulated that William G. MacHarg, Sr., deceased, at the time of the alleged accident on September 29, 1965, had in full force and effect a policy of liability insurance affording said William G. MacHarg, Sr., protection against his liability, if any, in said accident. It was further stipulated the plaintiff filed a petition for the appointment of an administrator for William G. MacHarg, Sr., deceased in the probate court of Jackson county, Kansas, but no further proceedings were had in that court. No administrator has been appointed and no claim for wrongful death has been filed therein by plaintiff.
K. S. A. 60-1901 provides:
“If the death of a person is caused by the wrongful act or omission of another, an action may be maintained for the damages resulting therefrom if the former might have maintained the action had he lived, in accordance with the provisions of this article, against the wrongdoer or his personal representative if he is deceased.” (Emphasis added.)
We note this statute specifically authorizes an action against the personal representative of the wrongdoer if the wrongdoer is deceased.
K. S. A. 60-1902 provides:
“The action may be commenced by any one of the heirs at law of the deceased who has sustained a loss by reason of the death. Any heir who does not join as a party plaintiff in the original action but who claims to have been •damaged by reason of the death shall be permitted to intervene therein. The action shall be for the exclusive benefit of all of the heirs who has sustained ■a loss regardless or whether they all join or intervene therein, but the amounts ■of their respective recoveries shall be in accordance with the subsequent provisions of this article.”
The defendant points to the changes made in this wrongful death statute effective January 1, 1964. He contends the administratrix of the estate of Deane W. Barr, deceased, is not the real party in interest to this action since K. S. A. 60-1902 now provides the action should be brought by an heir at law who sustained loss by reason ■of the death.
Eunice Barr alleges in the petition she is the administratrix of her husband’s estate, but she also alleges she is the surviving spouse ■and brings the action for the benefit of herself as surviving spouse and for the surviving children. She sues for losses sustained by her and the surviving children and the elements of damage alleged in her petition are those specified in K. S. A. 60-1904 as recoverable by an heir at law. The allegation that she is the administratrix of her husband’s estate would not be fatal to her cause of action under •our present liberal rules relating to pleading. Eunice Barr is the widow and an heir at law of Deane W. Barr, deceased. As such she is a real party in interest to bring the action. (See Gard, Kansas Code of Civil Procedure § 1902 and 5 K. S. A. Code of Civ. Proc., Eowks, Harvey and Thomas § 60-1902.)
As indicated in the district court’s letter of decision service was •completed upon the defendant-administrator in the state of Michigan pursuant to K. S. A. 60-308 which provides in pertinent part:
“(a) Proof and effect. (1) Personal service of summons may be made upon any party outside the state. If upon a person domiciled in this state or upon a person who has submitted to the jurisdiction of the courts of this state, it shall have the force and effect of personal service of summons within this state; otherwise it shall have the force and effect of service by publication.
“(b) Submitting to jurisdiction — process. Any person, whether or not a citizen or resident of this state, who in person or through an agent or instrumentality does any of the acts hereinafter enumerated, thereby submits said person, and, if an individual, his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of said acts:
“(2) The commission of a tortious act within this state;
“Nothing herein contained limits or affects the right to serve any process in any other manner now or hereafter provided by law.”
We note in passing that the method of service provided does not limit or affect the right to serve process in any other manner, such as is provided in K. S. A. 8-402, et seq. However, the controversy in this case focuses on K. S. A. 60-308.
As pointed out in Woodring v. Hall, 200 Kan. 597, 600, 438 P. 2d 135, subsection (b) subparagraph (2) of K. S. A. 60-308 was taken from the Illinois Civil Practice Act of 1955 (Smith-Hurd, Ill. Annot. Statutes, Ch. 110, § 17) by the committee which drafted our Code of Civil Procedure. The Supreme Court of Illinois has held under their statute an action may be brought in Illinois for damages against a foreign appointed administrator for injuries sustained in an automobile accident in Illinois caused by decedent and that said statute secures jurisdiction over a foreign administrator, notwithstanding the general rule that courts of one state should not interfere with the administration of a decedent’s estate in another jurisdiction. (Hayden v. Wheeler, 33 Ill. 2d 110, 210 N. E. 2d 495; see also Nelson v. Miller, 11 Ill. 2d 378, 143 N. E. 2d 673.)
This court has recognized and applied the rule that a statute adopted from another state generally carries with it the construction placed upon it by the courts of that state. (Woodring v. Hall, supra.)
When we consider the plain provisions of K. S. A. 60-308 and the source from which it stems we are convinced the legislature intended to and did extend jurisdiction of our courts to include a foreign administrator in actions brought in Kansas for injuries sustained in an automobile accident in Kansas arising out of a tortious act of a deceased nonresident motorist. Our decision in this matter appears to have the support of decisions from a majority of those states having similar statutes. (See 18 A. L. R. 2d 544.)
In Tilley v. Keller Truck & Implement Corp., 200 Kan. 641, 650, 438 P. 2d 128, we pointed out this statute was constitutional whether tested under the commerce clause or the due process clause of the United States Constitution. (See also Woodring v. Hall, supra.)
The defendant-administrator argues in support of the district court’s judgment that a demand against the estate of the deceased wrongdoer on account of a wrongful death must be made in the probate court where the estate of the deceased wrongdoer is being administered, citing Shively v. Burr, 157 Kan. 336, 139 P. 2d 401. He further points out in Hildenbrand v. Brand, 183 Kan. 414, 327 P. 2d 887 and In re Estate of Meyer, 191 Kan. 408, 381 P. 2d 546, we held when the purpose of an action or claim is to get something out of an estate of a decedent the probate court has exclusive original jurisdition of the matter and the action or claim must be filed in the probate court. He points out this court has held an insurance policy constitutes such an estate of a nonresident decedent as to justify the appointment of an administrator. (See In re Estate of Preston, 193 Kan. 145, 392 P. 2d 922.) He therefore concludes the plaintiff was required to obtain the appointment of an administrator for the MacHarg estate in Jackson county, Kansas, and file the wrongful death claim in the probate court.
We do not agree with this conclusion. After Preston was decided the legislature of this state spoke on the subject of jurisdiction of our probate courts over nonresident estates. K. S. A. 1968 Supp. 59-805 now provides:
“The courts of this state have jurisdiction over all tangible and intangible property of a nonresident decedent having a situs in this state. For the purpose of such jurisdiction it is recognized as to other states and countries, and declared with respect to this state, that the situs of debts, rights and choses in acio'n which are embodied in legal instruments such as stock certificates, bonds, negotiable instruments, insurance policies payable to an estate and other similar items is in that state or country in which such legal instruments are located, so that whatever state or country has jurisdiction of such instruments has, and of right ought to have, jurisdiction to administer upon or otherwise direct the disposition of the debts, rights and choses in action which they embody, or voluntarily relinquish such jurisdiction to other states and countries. For such purpose the situs of other debts, rights and choses in action is where the debtor is found.” (Emphasis added.)
Under the provisions of this statute on and after July 1, 1967 the probate jurisdiction of a nonresident decedent’s estate is limited to tangible and intangible property having a situs in Kansas. The liability insurance policy affording William G. MacHarg, Sr., protection, and the rights embodied therein, had a situs in the state of Michigan. The nonresident decedent had no tangible or intangible property upon which the jurisdiction of our probate courts could operate.
Therefore, the rule of exclusive original jurisdiction enunciated in Shively v. Burr, supra, and similar cases has no application to the present case. That rule relates to estates where a probate court in this state has jurisdiction to administer the decedent’s estate.
The defendant-administrator points to the provision of our non-claim statute, K. S. A. 59-2239, which states it applies to both domiciliary and ancillary administration. He argues this statute has been construed as a statute of limitations on tort claims not otherwise barred on the date of decedent’s death. (See In re Estate of Wood, 198 Kan. 313, 424 P. 2d 528.)
As previously pointed out herein our nonclaim statute does not apply in the present case. The MacHarg estate is being administered in Michigan. The Kansas probate courts have no jurisdiction of this estate since there is no property in Kansas and we cannot speculate on the effect of the Michigan nonclaim statute. This statute may prevent eventual recovery from assets of the estate. Any recovery from the assets in a foreign estate is determined by the law of the state where the probate proceeding is pending (Brooks v. National Bank of Topeka, [Mo. 1958] 251 F. 2d 37, 42.)
The parties stipulated on appeal that a policy of liability insurance affording William G. MacHarg, Sr., protection was in full force and effect at the time of the accident. We do not base our decision in this case on the availability of insurance. However, the existence of liability insurance does indicate a judgment against the nonresident administrator may be collectible in the present case.
The defendant relies heavily upon the case of Knoop v. Anderson, (Iowa 1947 ) 71 F. Supp. 832, to support his claim of lack of jurisdiction.
The Knoop case was discussed and rejected in Brooks v. National Bank of Topeka, supra. We believe the reasoning and logic of Brooks is more in line with the modern trend of authorities. We-hold a nonresident who commits a tortious act within this state-submits himself, and the administrator of his estate in event of his death, to the jurisdiction of the courts of this state as to any cause-of action arising from the commission of said tortious act. When, service of summons was obtained in the present case upon the nonresident administrator as provided in K. S. A. 60-308 (b) (2) jurisdiction of the district court attached to both the party and the subject matter of the action. (Hayden v. Wheeler, supra. See also-Brooks v. National Bank of Topeka, supra, and cases cited therein.)
The judgment dismissing plaintiff’s action is reversed and the case is remanded for further proceedings. | [
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Arnold-Burger, J.:
When a borrower defaults on a promissory note that is secured by a real estate mortgage, the lender may foreclose on the mortgaged property to collect on the note. In this case, MetLife Home Loans, a Division of MetLife Bank, N.A. (MetLife) claims to be the holder of both the promissory note (Note) and the corresponding mortgage (Mortgage) on property owned by C.T. and Kelly Hansen (Hansens). There is no dispute that the Note is in default. Due to the default, MetLife seeks to foreclose on the property to collect on the Note. The sole issue in this appeal is whether the district court was correct to grant sum-maiy judgment to MetLife.
The Hansens argue that because the Note and the Mortgage took divergent paths, i.e., the Note was separately endorsed between various lenders, while the Mortgage remained recorded in the name of Mortgage Electronic Registration Systems, Inc. (MERS), there was an irreparable legal separation of the Note and the Mortgage, rendering the Mortgage unenforceable by MetLife. MetLife counters that the path the various assignments took is irrelevant because at the time the action was filed, MetLife held both the Note and the Mortgage. In other words, MetLife contends that even if there was a defect in assignment that split the two interests, that defect was cured when the interests were rejoined under MetLife’s common holding.
The district court agreed with MetLife and granted it summaiy judgment. Because we find that summary judgment was proper, albeit for different reasons than the district court, we affirm.
Factual and Procedural History
Execution of the promissory note and the mortgage
On March 4, 2004, Clarence Hanson (C.T.) executed and delivered the Note to Sunflower Mortgage Company (Sunflower), promising to pay Sunflower $168,750 plus interest in monthly installments over a 15-year period. As security for the Note, the Han-sens (C.T. and his then-wife Kelly) signed a Mortgage on their Baldwin City home, which was filed with the Douglas County Register of Deeds on March 10, 2004.
The definitions, powers, and obligations of the parties to the Mortgage are important here. The Mortgage names the Hansens as tire “Borrower” and Sunflower as the “Lender.” It also references the Note signed between C.T. and Sunflower. The Mortgage defines MERS, a separate corporation, as the mortgagee and states that MERS is acting “solely as nominee” for Sunflower and Sunflower’s successors and assigns. In the Mortgage, the Hansens specifically and irrevocably mortgaged their home to MERS—solely as nominee for Sunflower and Sunflower’s successors and assigns-—■ and to the successors and assigns of MERS. MERS reserved the right to take any action required of the Lender including, but not limited to, releasing and cancelling the Mortgage.
The Note and the Mortgage came under MetLife’s common holding through a series of nonparallel endorsements or assignments.
Both the Note and the Mortgage eventually came to be held by MetLife through a series of separate endorsements or assignments:
• The Note: Sunflower exercised its right of transfer provided for in the Note and endorsed it to Ohio Savings Bank (Ohio Savings) on March 4, 2004—the same day it was signed by C.T. The Note was thereafter twice endorsed (on dates unknown): from Ohio Savings to First Horizon Loan Corporation (First Horizon); and from First Horizon to MetLife.
• The Mortgage: The central point of contention in this appeal stems from the fact that during the course of the above endorsements of the Note between the various lenders, the original Mortgage remained recorded in the name of MERS up until MERS assigned it to MetLife, “solely as nominee for Sunflower Mortgage Co.” (Emphasis added.)
Defendants challenged MetLife’s standing to foreclose.
C.T. eventually defaulted on the Note, so on February 16, 2010, MetLife filed the foreclosure petition that is the underlying subject matter of this case. In addition to the Hansens, MetLife named Wellsville Rank as a defendant because on August 29, 2008, it had recorded a $70,000 mortgage granted by C.T. on the same Baldwin City property. Wellsville Bank filed a cross-claim for foreclosure because C.T. had also defaulted on its note secured by that mortgage. '
The Hansens and Wellsville Bank challenged MetLife’s standing to foreclose in their affirmative defenses in their answers to MetLife’s petition and in summary judgment pleadings initiated by Wellsville Bank. While their arguments took on many different angles, the gist of their complaint was that ownership of the Note and the Mortgage had irreparably split when the Note was endorsed between the various lenders while the Mortgage remained recorded in MERS’s name, as the mortgagee. Consequently, Wellsville Bank and the Hansens claimed that MetLife either wholly lacked an interest in the Hansens’ Baldwin City property or any interest MetLife did have was unsecured and, therefore, junior to Wellsville Bank’s interest.
MetLife primarily responded that it had standing to foreclose based simply on its holding of both the Note and the Mortgage, regardless of any prior split in the holdings of each; and even if it had to establish the legality of how it came to hold both, it did so.
It should be noted that after filing its foreclosure petition, MetLife assigned both the Note and Mortgage to Fannie Mae and moved the district court to substitute Fannie Mae as the plaintiff as a result. The district court orally granted that motion at the hearing upon finding that the substitution of Fannie Mae as plain tiff did not affect any of the summary judgment arguments concerning MetLife’s standing to foreclose. Because the issue was challenged below based on MetLife’s standing at the time it filed the petition, Fannie Mae is not further mentioned, although it is technically now the plaintiff/appellee.
The district court held MetLife had standing to foreclose.
Following a hearing on the parties’ competing motions for summary judgment, during which the sole issue argued was MetLife’s standing to foreclose, the district court entered judgment in MetLife’s favor. In support, the district court reasoned that the Mortgage and Note had indisputably come under MetLife’s common control. And even if an agency relationship might have been lacking between the various lenders that held the Note and MERS—which could be interpreted as causing an improper split of the Mortgage and Note—the court found that any such split was “cured” upon the assignments of both instruments to MetLife. Upon the district court’s denial of their motion to reconsider, the Hansens filed this pro se appeal. Wellsville Bank did not appeal.
Analysis
Standard of review
The standards for granting summary judgment are well known. When the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. The district court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. On appeal, the same rules apply; summary judgment must denied if reasonable minds could differ as to the conclusions drawn from the evidence. Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011). In addition, to the extent this case involves a jurisdictional question, that being whether MetLife has standing to bring this foreclosure action, our review is unlimited. Board of Sumner County Comm’rs v. Bremby, 286 Kan. 745, Syl. ¶ 1, 189 P.3d 494 (2008).
The elements of a mortgage foreclosure action.
“The main purpose of a mortgage is to insure the payment of the debt for which [it] stands as security; and foreclosure is allowed when necessary to carry out that objective.” United States v. Loosley, 551 P.2d 506, 508 (Utah 1976). Accordingly, in order to grant summary judgment in a mortgage foreclosure action, the district court must find undisputed evidence in the record that the defendant signed a promissory note secured by a mortgage, that the plaintiff is the valid holder of the note and the mortgage, and that tire defendant has defaulted on the note. See Cornerstone Homes v. Skinner, 44 Kan. App. 2d 88, 97-98, 235 P.3d 494 (2010). So in this case, if tire pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact regarding: (1) MetLife’s beneficial interest in the Note signed by C.T. Hansen; (2) Met-Life’s beneficial interest in the Mortgage signed by the Hansens to secure the Note; and (3) a default on the Note by C.T. Hansen, then MetLife is entitled to judgment as a matter of law.
It is undisputed that MetLife was the assignee of the Note and that C. T. is in default on the Note.
The first and third conditions, or elements for foreclosure, are met on the undisputed record facts. C.T. signed a promissory note to Sunflower, secured by a real estate mortgage that he and his wife both gave to MEPiS as nominee of Sunflower. Documents submitted by the Hansens show that the Note was thereafter assigned to Ohio Savings from Sunflower; from Ohio Savings to First Plorizon; and from First Horizon to MetLife. We also note that MetLife presented the original Note to the district court. C.T. is in default on the Note. The Hansens summarily denied both the proper assignment of the Note and the subsequent default in their response to MetLife’s summaiy judgment motion.' But a party opposing summary judgment may not rely merely on allegations or denials in its own pleadings. Rather a response to a summaiy judgment motion must set out specific facts supported by affidavits or declarations, showing a genuine issue for trial. K.S.A. 60-256. Because the Hansens failed to present evidence supported by affi davits or declarations that sufficiently disputed MetLife’s claims regarding MetLife’s valid interest in the Note via the endorsements and C.T.’s default on the Note, these facts are deemed admitted. See Supreme Court Rule 141 (2011 Kan. Ct. R. Annot. 232).
The issue here centers on MetLife’s interest in the Mortgage.
The issue key to this appeal is the evidence to support the second element, i.e., whether the record supports the finding that MetLife is also the undisputable holder of the Mortgage and therefore, summary judgment is proper on the issue of its standing to foreclose on the Mortgage as collateral for the Note. The Hansens confirmed at oral arguments before tire district court that this was the primary issue they were raising in their challenge to MetLife’s standing.
Before addressing the Hansens’ argument and MetLife’s response, we pause briefly to discuss MERS’s role in mortgage transactions and the legal concept of splitting a promissory note and the mortgage that secures it.
How MERS works.
The Kansas Supreme Court has described MERS as a private corporation that administers a national electronic registry that tracks the ownership interests and servicing rights in mortgage loans. MERS becomes the mortgagee of record for participating members through assignment of the members’ interests to MERS. MERS is listed as the mortgagee in the official records maintained at county register of deeds offices. The lenders retain the promissory notes. The lenders can then sell their interests to investors without having to record each transaction in die public records. Landmark Nat’l Bank v. Kesler, 289 Kan. 528, 536, 216 P.3d 158 (2009) (Landmark); see also Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1039 (9th Cir. 2011) (providing more in-depth description of MERS’s functions in mortgage transactions).
In the absence of this arrangement, each time a lender assigned a promissory note, the lender would have to record the action with the county register of deeds in order to preserve its priority position over subsequent lenders. See K.S.A. 58-2308. The intent of this arrangement with MERS as mortgagee acting solely as nominee of tire lender was to facilitate the purchase and sale of mortgages in the secondary market. See In re Martinez, 444 B.R. 192, 196 (Bankr. D. Kan. 2011), clarified on denial of reconsideration by In re Martinez, 455 B.R. 755 (Bankr. D. Kan. 2011).
In Landmark, our Supreme Court described 'MERS’s role as that of a “straw man,” functioning solely as nominee for the lender. 289 Kan. at 539-40. Quoting Black’s Law Dictionary’s definition of a nominee as one “ who holds bare legal title for the benefit of others,’ ” the court pointed out-that this definition suggests that a nominee possess few or no legally enforceable rights beyond those of the principal whom the nominee serves. 289 Kan. at 538 (quoting Black’s Law Dictionary 1076 [8th ed. 2004]).
A promissory note and a mortgage may become separated or split, rendering the mortgage unenforceable.
Also in Landmark, our Supreme Court noted that a mortgage may become unenforceable when it is not held by the same entity that holds the promissory note. However, an exception exists where there is an agency relationship between the holder of the mortgage and the holder of the promissory note. 289 Kan. at 540. This concept is one of practicality: In the absence of an agency relationship between the holder of the mortgage and the holder of the note, the entity holding only the note lacks the power to foreclose in the event of a default, and the entity holding only tire mortgage will never experience a default because it has no right to payment under tire note. Landmark, 289 Kan. at 540 (quoting Bellistri v. Ocwen Loan Servicing, LLC, 284 S.W.3d 619, 623 [Mo. App. 2009]).
Here, the Note and the Mortgage were not split.
The Hansens argue that because there was ño evidence presented that any of the assignees of the Note in this case (Sunflower, Ohio Savings, First Horizon, or MetLife) were MERS members, then diere was no evidence of an agency relationship with MERS. They contend that based upon our Supreme Court’s holding in Landmark, if there was no agency relationship between the holder of the Note and MERS, then the holding of the Note and the Mortgage by separate entities created a split, and, as a result MetLife had no standing to foreclose the mortgage.
This court recently addressed tire concept of the splitting of a promissory note and the mortgage that secures it in U.S. Bank v. Howie, 47 Kan. App. 2d 690, 280 P.3d 225 (2012). Unfortunately, the district court did not have the benefit of Howie at the time it ruled on the summary judgment motion in this case.
The facts in Howie are fairly similar to those in the case now before this court. James Howie executed a promissory note to U.S. Bank. That same day he and his wife, Georgia, executed a mortgage on real property they owned in Ottawa. Under the terms of the mortgage, the Howies were named as the borrower, U.S. Bank as the lender, and MERS was named as the mortgagee “ ‘acting solely as a nominee for Lender and the Lender’s successors and assigns.’ ” 47 Kan. App. 2d at 691. When the note entered into default following James’ death, MERS assigned the mortgage to U.S. Bank, which subsequently filed an action to foreclose the mortgage. Georgia argued that when the note and the mortgage were held by two separate entities (U.S. Bank and MERS) they were irreparably severed and the severance could not be cured by the subsequent assignment of the mortgage from MERS to U.S. Bank prior to the filing of the foreclosure action. 47 Kan. App. 2d at 694. Georgia noted that there was no evidence of any agency relationship between MERS and U.S. Bank. 47 Kan. App. 2d at 702. The district court—like the district court in this case—did not expressly decide whether MERS held the mortgage as an agent of U.S. Bank. Instead, the district court held that even if there was no agency relationship between MERS and U.S. Bank such that the note and the mortgage were severed, any severance was cured by MERS’s subsequent assignment of the mortgage to U.S. Bank.
In reviewing the arguments made by Georgia and U.S. Bank, the court in Howie, identified the dispositive issue as whether MERS, as the initial holder of the mortgage, was acting as an agent for U.S. Bank. 47 Kan. App. 2d at 696-97. It found, consistent with Landmark’s characterization of MERS as a “ ‘straw man,’ ” that MERS had few if any rights other than acting on behalf of the lender to secure the lenders rights where necessary. Accordingly, MERS was an agent of the lender. Howie, 47 Kan. App. 2d at 699-700.
The Howie panel also considered at length and agreed with the reasoning by the United States Bankruptcy Court for the District of Kansas in In re Martinez, 444 B.R. at 192. Howie, 47 Kan. App. 2d at 701-02. Simply put, Martinez held that where there is sufficient evidence to establish that MERS is acting as an agent of the lender, there is no split between the note and mortgage that renders the mortgage unenforceable. 444 B.R. at 206.
The Howie panel also rejected Georgia’s challenge to the sufficiency of the evidence to find that MERS was acting as an agent for U.S. Bank for summary judgment purposes. Although direct evidence of an agency relationship may have been lacking in Howie, the panel held that the plain language of the mortgage provided sufficient and undisputed evidence from which it could be conclusively held that MERS was acting as an agent of U.S. Bank at all relevant times. While that was not the reasoning relied upon by the district court in granting summary judgment, the Howie panel held that the district court reached the correct result and affirmed its grant of summary judgment to U.S. Bank.
We find Howie’s reasoning persuasive in this case. As in Howie, the only evidence regarding the existence of an agency relationship between MERS and MetLife in this case is the language of the Mortgage itself, which the parties do not dispute. Because we are in just as good a position as the district court to review that contractual language, our review is unlimited. See Kuxhausen v. Tillman Partners, 291 Kan. 314, 318, 241 P.3d 75 (2010).
But this case is distinguishable from Howie in one important aspect: here, MetLife was not the original holder of the note, as was U.S. Bank in Howie, but was instead a subsequent assignee of the original lender, Sunflower. Because there was no direct evidence that MetLife maintained an independent agency relationship with MERS—by proving it was a MERS member, for example—the question becomes whether, as in Howie, the language of the Mortgage alone conclusively establishes an agency relationship between MERS, Sunflower, and Sunflowers assignees. We believe that it does for the following reasons.
As recognized in the Restatement (Third) of Property: Mortgages, an agency relationship may arise between a holder of the note and the holder of the mortgage
“from the terms of the assignment, from a separate agreement, or from other circumstances. Courts should be vigorous in seeking to find such a relationship since the result is otherwise likely to be a windfall for the mortgagor and the frustration of [the note holder’s] expectation of security.” Restatement (Third) of Property: Mortgages § 5.4, comment e (1996).
Promissory notes and mortgages are contracts to which the rules of contract construction apply. Blair Const., Inc. v. McBeth, 273 Kan. 679, 691, 44 P.3d 1244 (2002). Absent an ambiguity in a contract, a court must give effect to the intent of the parties as expressed within the four corners of the instrument. 273 Kan. at 691.
We find no ambiguity in the Note or the Mortgage in this case. The Mortgage clearly states that the Hansens mortgaged the listed property “to MERS (solely as nominee for Lender and Lenders successors and assigns).” (Emphasis added.) This language unambiguously advised the Hansens that tire Mortgage would be held by MERS for the benefit of Sunflower and any of Sunflower s successors and assigns. The Mortgage also provided that the Mortgage secures the repayment of the Note and that the Note, together with the Mortgage, could be sold one or more times. Finally, die Mortgage allows the Lender to foreclose on the Mortgage by judicial proceeding. The Note also specifically cross-references the Mortgage. The plain language of both the Note and the Mortgage indicates that the parties’ intended to keep diem together, intertwined, as part of one transaction.
Our interpretation is also consistent with Kansas mortgage law. Generally, the transfer of an obligation or debt secured by a mortgage also transfers the mortgage unless the parties to the transfer agree otherwise. Martinez, 444 B.R. at 202 (citing Restatement [Third] of Property: Mortgages § 5.4[a]). This has long been the common law in Kansas. See Kurtz v. Sponable, 6 Kan. *395, *397 (1870) (recognizing tiiat “[u]nder our laws, the mortgage is but appurtenant to the debt; a mere security; and, under ordinary circumstances, whoever owns the debt, owns the mortgage”).
More recent authorities confirm that this common-law concept of the mortgage following the note remains good law. For example, in Army Nat'l Bank v. Equity Developers, Inc., 245 Kan. 3, 17, 774 P.2d 919 (1989), our Supreme Court held: “Our view is that the mortgage follows the note. A perfected claim to the note is equally perfected as to the mortgage.” See also Federal Land Bank of Wichita v. Krug, 253 Kan. 307, 314, 856 P.2d 111 (1993) (noting that real estate mortgage is a contract which conveys no legal title, but is merely mortgagee’s security for mortgagor’s debt; and because mortgage is only security, and incident to debt, it follows debt and partakes of its nature and character).
In fact, our legislature directs the converse concept is also true under Kansas law. More specifically, K.S.A. 58-2323, first adopted in 1899, directs that the assignment of any mortgage also carries with it the debt thereby secured. See Reinstatement (Third) of Property: Mortgages § 5.4, comment c.
From all of these authorities, it is clear that Kansas law favors keeping the mortgage and the right of the enforcement of tire obligation it secures in tire hands of the same person or entity.
To support their claim that MetLife does not hold the Mortgage, and, therefore, an irreparable “split” has occurred, the Hansens rely on the fact that in the assignment document it recorded with the register of deeds, MERS explicitly assigned the Note and the Mortgage to MetLife “solely as nominee for Sunflower Mortgage Co.,” not as nominee for Sunflower and its successors and assigns. (Emphasis added.) They contend that because MERS did not hold, nor had it ever held the Note, and because Sunflower no longer held the Note and was no longer even a viable business, the assignment failed to transfer any interest in the Mortgage to MetLife. Accordingly, the Note and the Mortgage were split; and once split, like Humpty Dumpty, they can never be put back together again. We disagree for the following reason.
As we have already found, MERS held the Mortgage as nominee or agent for MetLife. As our Supreme Court held in Landmark, a nominee possesses few or no legally enforceable rights beyond those of the principal whom the nominee serves. 289 Kan. at 538. In this case, the principal’s rights in the Mortgage were not transferred to MERS; instead MERS only held the Mortgage as a “straw man” subject to tire superior rights of the principal—in this case the lender, Sunflower, and its successors and assigns. In other words, the beneficial interest in the Mortgage and Note remained vested in Sunflower and its successors and assigns by the clear language of both the- Note and the Mortgage. See MERS v. Saunders, 2 A.3d 289, 295 (Me. 2010) (holding that MERS’s sole right as nominee was to record mortgage, with all beneficial rights in mortgage and note remaining with lender and its successors and assigns); In re Corley, 447 B.R. 375 (Bankr. S.D. Ga. 2011) (holding under similar facts and contract language that by language of note and mortgage, beneficial interest remained with lender and its successors and assigns).
Accordingly, MetLife, as a downstream assignee of the Note, also retained a beneficial interest in the Mortgage. So even if the language of MERS’s assignment of the Mortgage to MetLife was somehow faulty, the result would be the same as far as MetLife’s standing to foreclose is concerned. This is because MetLife did not need that assignment in order to vest it with a beneficial interest in the Mortgage. As a valid holder of the Note, it already had such an interest sufficient to give it standing to initiate a foreclosure action. See Army Nat’l Bank, 245 Kan. at 16 (quoting recognition in Middlekauff v. Bell, 111 Kan. 206, 207, 207 P. 184 [1922] that “ c[a]n assignment of a mortgage is merely a formal transfer of title to the instrument .... [drat the debt owner] did not need the assignment in order to invest her with ownership of the mortgage [because the debt owner] acquired full tide by purchase of the note which it secured’ ”). The assignment of the Mortgage was merely recorded notice of a formal transfer of the title to the instrument as required by recording , statutes, which are primarily designed to protect the mortgagee against other creditors of the mortgagor for lien-priority purposes, not to establish the rights of the mortgagee vis—vis the mortgagor. See Army Nat'l Bank, 245 Kan. 3, Syl. ¶ 6.
Other jurisdictions have recognized that because the mortgage follows the note, formal assignment of tire mortgage is not necessary to secure the note holder s rights in the mortgage, albeit in different circumstances. See Second National Bank of New Haven v. Dyer, 121 Conn. 263, 269, 184 A. 386 (1936) (finding that “as between the indebtedness and the mortgage securing it, the debt is the principal thing and the security incidental,”; so “an assignment of the debt carries with it the right and benefit of the security,” even if the security it is not assigned along with the debt); Johns, et ux., v. Gillian, et al., 134 Fla. 575, 582, 184 So. 140 (1938) (finding that even if there had been no assignment of mortgage, purchaser of debt would be entitled to foreclose on mortgage); Ogilvie v. First Nat. Bank in Enid, 179 Okla. 111, 64 P.2d 875, 877 (1937) (pointing out that “[t]he mortgage securing a note is merely incident and accessory to the note, partakes of its negotiability so that the indorsement and delivery of the note secured by the mortgage carries the mortgage with it without formal assignment thereof.”).
Therefore, because the record conclusively establishes that at all times MetLife held a beneficial interest in both the Note and the Mortgage executed by the Hansens and C.T. was in default on the Note, MetLife was entitled to summary judgment on its mortgage foreclosure action as a matter of law.
Hansens’ remaining claims
In addition to the appropriateness of tire district court's granting of summary judgment, tire Hansens raise several other issues.
First, they ask this court to award them damages against MetLife for fraud and impose sanctions against, or otherwise penalize, MetLife and its counsel for statements made to support their summary judgment pleadings. This court does not perform such functions for the first time on appeal, so we will decline the invitation.
Next, they argue that Sunflower never properly perfected its lien because, by the time the Mortgage was recorded on March 10, 2004, Sunflower had lost any interest in the Note based on its endorsement to Ohio Savings on March 4, 2004. The Hansens contend as a result the Mortgage became a “ ‘Wild Deed’ ” under the Uniform Commercial Code, leaving any interest that MetLife held based on the Mortgage null and unsecured and rendering Wellsville Banks lien superior.
Whether the lien was properly perfected for purposes of lien priorities is not relevant here. As the district court explained at the hearing, perfection through recording is a notice requirement only; it does not affect the validity of an assignment. See, e.g., Restatement (Third) of Property: Mortgages § 5.4, comment b. Moreover, any right to challenge the propriety of perfection of the lien belonged to Wellsville Bank, not the Hansens.
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|
Standridge, J.:
After Gregory Coker’s new home was damaged, he filed a lawsuit for breach of express warranty against the company that sold him the house and for negligence against John M. Chaney, the plumber whose act caused the damage. The district court ultimately dismissed Coker’s claim of negligence against Chaney based on the economic loss doctrine, which—as it existed under Kansas law at the time—prevented a homeowner from bringing a tort action under circumstances governed by contract. But a subsequent Kansas Supreme Court ruling has refused to extend tire economic loss doctrine to homeowner claims against construction contractors. Thus, we must reverse the district court’s decision and remand the case so that Coker may go forward with his tort claim against Chaney.
Facts
In August 2006, J.M.C. Construction (J.M.C.) purchased a partially built house from Michael D. Siler. At the end of that month, Chaney, president of J.M.C., personally installed the main water line into the residence.
In July 2007, Coker purchased the house from J.M.C. The contract for sale included a 1-year express warranty provision, which stated:
“Seller agrees to warrant the improvements on the property for defects in materials and workmanship for a period of one year from the date of possession and agrees to pass on to Buyer all warranties provided on mechanical equipment installed on the property.”
Coker took possession of the residence in September 2007.
In April 2008, Coker received a higher-than-average water bill but attributed it to watering the lawn during that time. However, in May 2008, he received another high water bill. Finding no evidence of a leak above the ground, Coker contacted J.M.C. On May 9, 2008, Chaney came to the home along with R.D. Johnson Excavation and dug up the water line. They discovered that the main water line had separated from a coupling, creating a ¼- to ⅜-inch gap through which water was escaping. An engineer hired by Coker determined that the water went underneath the foundation slab of the home and caused heaving, which resulted in cracks in the walls and uneven doors.
Coker sued Siler, J.M.C., and Chaney (defendants) for negligence, breach of implied warranty, and strict liability. He also claimed breach of express warranty against J.M.C. and Chaney. Coker asserted $79,697.56 in damages.
J.M.C. and Chaney filed a motion for summary judgment, which the district court granted in part. The district court denied the defendants’ motion for summary judgment on the breach of express warranty claim based on the fact that Coker offered evidence through an expert’s testimony sufficient to support his position that the cause of the leak was within the defendants’ exclusive control. The district court dismissed Coker’s negligence, strict liability, and breach of implied warranty claims against J.M.C. and Chaney because they were barred under the economic loss doctrine.
Upon the defendants’ motion for clarification, the district court thereafter dismissed Coker’s breach of express warranty claim against Chaney based on a lack of evidence in the record to support contractual privity between Coker and Chaney in his individual capacity. The district court also denied Coker’s motion to reconsider its order dismissing his claims of negligence, strict liability, and breach of implied warranty against Chaney.
On December 5, 2011, Coker accepted an offer of judgment on the breach of express warranty claim from J.M.C. in the amount of $40,000. The district court entered a final journal entry of judgment on January 25, 2012, and also dismissed the claims against Siler with prejudice upon Coker’s oral motion.
Analysis
Coker claims the district court erred by granting summary judgment against him on the negligence and implied warranty claims he brought against Chaney. Specifically, Coker challenges the district court’s decision finding that the economic loss doctrine barred his negligence and implied warranty claims against Chaney. Specifically, Coker argues the district court’s decision was based on Prendiville v. Contemporary Homes, Inc., 32 Kan. App. 2d 435, 83 P.3d 1257, rev. denied 278 Kan. 847 (2004), which—although good law at the time the court issued its opinion—subsequently was overruled by the Kansas Supreme Court in David v. Hett, 293 Kan. 679, 699, 270 P.3d 1102 (2011).
We review a district court’s decision to grant or deny a motion for summary judgment as follows:
“ ‘Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive, issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to tire conclusions drawn from the evidence, summary judgment must be denied.’ [Citations omitted.]” Scott v. Hughes, 294 Kan. 403, 411, 275 P.3d 890 (2012).
1. Applicability of the Economic Loss Doctrine■
The economic loss doctrine is a judicially created rule that governs the ability of a plaintiff, to bring a tort action when the only damages claimed by such plaintiff are economic losses. See David, 293 Kan. at 683, 687-88. The doctrine was an attempt to prevent contract law from dissolving into tort law by drawing a distinction between commercial transactions, where contract law protects economic expectations, and consumer transactions, where tort law remedies physical injuries to individual consumers. See 293 Kan. at 686, 692, 698. The doctrine originated in product liability law to prevent the purchaser of a defective product from suing in tort when the damages claimed were purely economic in nature, such as the cost to repair or replace the defective product. To recover in tort, the doctrine required the purchaser to demonstrate more than tire product’s failure to meet economic expectations; tire purchaser had to demonstrate some harm above and beyond a broken contractual promise. See Koss Construction v. Caterpillar, Inc., 25 Kan. App. 2d 200, 205, 960 P.2d 255, rev. denied 265 Kan. 885 (1998).
Our Court of Appeals first adopted tire economic loss doctrine in a commercial product liability case in Koss Construction, 25 Kan. App. 2d at 205. Six years later, our court expanded the scope of the doctrine by applying it to cases relating to residential home construction. Prendiville, 32 Kan. App. 2d at 445-46. In Prendiville, a homeowner contracted with the defendants to build a house and signed a 1-year new home warranty. More than 4 years later, the plaintiff noticed water infiltration through the stucco siding and sued the siding company, the construction contractor, and the contractor company’s president for breach of warranty, negligent construction, and violations of the Kansas Consumer Protection Act (KCPA). A panel of this court held that the plaintiff was barred from bringing a tort claim against his contractor for purely economic loss. 32 Kan. App. 2d at 446. In so holding, the court noted that applying the economic loss doctrine to residential home construction services was consistent with the policy considerations underlying the doctrine’s initial adoption:
“[W]e find no compelling reason why the economic loss doctrine should not be applied to a claim against a contractor in residential construction defect cases. Whether or not a house is deemed to be a ‘product,’ we find that the principles underlying the economic loss doctrine apply to a residential construction transaction where the rights and liabilities of the parties are governed by contract and express warranty. This does not bar all of [plaintiff s] claims against the defendants, but only those claims based on tort.” 32 Kan. App. 2d at 445.
As noted above, however, the Kansas Supreme Court recently overruled Prendiville in the case of David. In David, the Davids acted as their own general contractor to build a home and hired David Hett under an oral agreement for the excavation, basement, and concrete work. Five years later, the Davids experienced unusual settling in their home’s garage and basement areas and sued Hett for breach of contract, negligence, fraud, fraudulent concealment, and violation of the KCPA. Relying on Prendiville, the district court found the economic loss doctrine prevented the Davids from bringing a tort action under circumstances governed by contract. A panel of this court affirmed, and the Kansas Supreme Court granted the Davids’ petition for review in order to decide whether the economic loss doctrine should bar claims by homeowners seeking to recover economic damages resulting from negligently performed residential construction services.
The court in David began its discussion with a comprehensive summary of tire history of the economic loss doctrine and its development in Kansas. The court ultimately found the rationale supporting the economic loss doctrine failed to justify a departure from a long line of cases in Kansas that establish a homeowner’s right to assert claims against residential contractors “in tort, contract, or both, depending on the nature of the duty giving rise to each claim.” 293 Kan. at 680, 698-99. In support of this finding, the court noted that application of warranty law offers very limited protection for homeowners because the nature of home defects and damages that arise from them are often not discoverable until after a warranty period expires. The court further noted that residential construction contracts rarely involved the sophisticated parties with equal bargaining positions present in commercial products cases. 293 Kan. at 699-700. Finally, the court noted it found the economic loss doctrine’s application to home construction troubling because it focused on the damages rather than the duty breached, which could allow a contractor to escape liability simply because the negligence was discovered before someone was harmed. 293 Kan. at 700.
Having determined that the economic loss doctrine does not bar claims by homeowners seeking to recover economic damages resulting from negligently performed residential construction services, the court moved on to determine whether the gravamen of the Davids’ claim arose in tort. In so doing, the court adopted the pre-Prendiville independent legal duty analysis used by Kansas courts:
“Whether a claim sounds in tort or contract is determined by the nature and substance of the facts alleged in the pleadings. Nelson v. Nelson, 288 Kan. 570, 582, 205 P.3d 715 (2009); Malone [v. University of Kansas Medical Center], 220 Kan. [371,] 374 [, 552 P.2d 885 (1976)]. A breach of contract claim is the failure to perform a duty arising from a contract, and a tort claim is the violation of duty imposed by law, independent of tire contract. 220 Kan. at 374. But the fact that the parties have a contractual relationship does not necessarily control the inquiry because legal duties may arise even though the parties also have a contract, so that ‘ “[w]here a contractual relationship exists between persons and at the same time a duty is imposed by or arises out of circumstances surrounding or attending the transaction, the breach of the duty is a tort.” ’ 220 Kan. at 375 (quoting Yeager v. National Cooperative Refinery Ass’n, 205 Kan. 504, 509, 470 P.2d 797 [1970]).” David, 293 Kan. at 701.
Finding that the appellate record did not reveal whether the Davids had supported their negligence claims by citing any independent duty owed by Hett that was breached, the court remanded the case to the district court to determine whether the Davids’ claims arose in tort or contract. 293 Kan. at 702-03.
In this case, the district court relied on Prendiville to support its conclusion that the economic loss doctrine applied to the residential construction at issue here. The district court noted that although damages to “other property” precludes application of the economic loss doctrine, Kansas has adopted the integrated systems approach in which damage by a defective component of an integrated system to the system as a whole or any system component is not damage to “other property.” Citing Prendiville and cases from other jurisdictions, the district court concluded that tire coupling at issue here was within the integrated system of the house and the damage caused by the leak was “consequential economic loss” placing it within the economic loss doctrine’s reach. As a result, the court held that Coker’s negligence, strict liability, and breach of implied warranty causes of action against J.M.C. were barred under the doctrine. The court also found Coker’s negligence, strict liability, and breach of implied warranty claims against Chaney were barred, because “the president of a construction company, who has acted within that capacity, is sufficiently a party to the contract to defeat a lack-of-contractual privity claim.”
Although the district court properly relied on the law as it existed at the time of its ruling, the intervening change in the law necessarily renders the conclusion reached by the district court erroneous as a matter of law. Although this means that the economic loss doctrine does not preclude Coker from seeking economic damages from Chaney for negligently performed residential construction services, Coker’s tort claims will survive only if Coker can establish that Chaney owed Coker a duty imposed by law, independent of the underlying construction contract. See David, 293 Kan. at 701.
2. A Legal Duty Imposed by Law, Independent of the Contract
Coker contends that Chaney owed him a legal duty to perform his plumbing services free from negligence and that this duty exists independent of the underlying construction contract. The existence of a legal duty is a question of law over which this court exercises unlimited review. Glassman v. Costello, 267 Kan. 509, 521, 986 P.2d 1050 (1999). Thus, if a court concludes that a defendant accused of negligence did not have a duty to act in a certain manner toward the plaintiff, summary judgment is proper. Elstun v. Spangles, Inc., 289 Kan. 754, 757, 217 P.3d 450 (2009).
In his brief, Coker claims Chaney had a legal duty to perform plumbing services free from negligence under the following two theories, both of which existed independent of the underlying construction contract: (1) A construction contractor’s implied warranty that the work will be done in a workmanlike manner, using appro priate care and skill, and (2) a construction contractor’s liability for any personal or economic injury to a third party resulting from work negligently performed.
a. Duty Arising Out of Implied Warranty
An implied warranty is one arising by operation of law and not by express agreement of the parties, the rationale being to protect a party from loss in circumstances where the contract fails to expressly state the prevailing standard of care. See Corral v. Rollins Protective Services Co., 240 Kan. 678, Syl. ¶ 6, 732 P.2d 1260 (1987). “The law in Kansas and, indeed, the general rule throughout tire United States is that there is Implied in every contract for work or services a duty to perform it skillfully, carefully, diligently, and in a workmanlike manner.’ [Citations omitted.]” Zenda Grain & Supply Co. v. Farmland Industries, Inc., 20 Kan. App. 2d 728, 738, 894 P.2d 881, rev. denied 257 Kan. 1096 (1995). Kansas courts have found such implied warranties of workmanlike performance in various agreements, including building contractors and subcontractors. 20 Kan. App. 2d at 739 (citing Ware v. Christenberry, 7 Kan. App. 2d 1, 637 P.2d 452 [1981]).
Notably, implied warranties of workmanlike performance exist only when the parties have negotiated an underlying agreement for consideration and the agreement does not expressly state that the performance will be carried out under the prevailing standard of care for the industiy. Zenda Grain & Supply Co., 20 Kan. App. 2d at 737.
Because there can be no implied warranty of workmanlike performance in die absence of an underlying agreement between the parties to provide services, we must now determine whether Coker and Chaney entered into such an agreement. As Coker points out, the district court came to two seemingly contradictory conclusions with respect to this issue on summary judgment. In finding the economic loss doctrine applied to bar Coker’s tort claims against Chaney, the court concluded in its memorandum decision tiiat “die president of a construction company, who has acted within that capacity, is sufficiently a party to the contract to defeat a lack-of-contractual privity claim.” In response to Chaney’s motion to ciar ify, however, the court explained in a supplemental memorandum decision that Chaney, in his individual capacity as a plumber performing work for Coker, was not a party to the J.M.C. contract.
These holdings, however, are not mutually exclusive. The district court correctly made a distinction between Chaney s acts within his capacity as president of J.M.C. and his acts as an individual. Although Chaney may have been a party to the contract with Coker as president of J.M.C., the district court correctly held Chaney was not a party to that contract in Chaney’s capacity as an individual plumber. The record in this case reflects that Coker’s implied warranty claim against Chaney is based on Chaney’s failure as an individual plumber to provide services skillfully and in a workmanlike manner. Because there is no evidence of an underlying agreement between Coker and Chaney to provide those plumbing services in the first instance; Coker’s claim that Chaney breached an implied duty within such a contract fails as a matter of law.
b. Contractor Liability for Injury to Third Tarty
As an alternative theoiy of recovery, Coker cites to this court’s decision in Kristek v. Catron, 7 Kan. App. 2d 495, 499, 644 P.2d 480, rev. denied 231 Kan. 800 (1982), to establish that Chaney had a legal duty—independent of any contract—to perform plumbing services without causing economic injury to third parties. In Kris-tek, a builder contracted with and built a house for an investment company. The investment company later sold the house to the plaintiff. After the plaintiff noticed stains on the ceiling and walls of the house resulting from a water leak, the plaintiff sued the builder for damages on a theory of negligent construction. The court held:
“[A] construction contractor is liable for any injuiy to a third party, personal or economic, resulting from work negligently performed even though the injury occurs after completion of the work and its acceptance by the owner, when such injuiy is reasonably certain to occur if the work is negligently done.” 7 Kan. App. 2d at 499.
Applying the rule enunciated in Kristek to the facts here, Chaney is liable for injuries sustained by third parties as a result of any torts he may have committed as an individual plumber. Under this the ory of recovery, then, Chaney owed Coker a legal duty independent of Cokers contract with J.M.C. Because the district court found Coker offered sufficient evidence to present a question of fact as to whether there was a defect that caused the leak at the time the home left J.M.C.’s possession, Coker’s claim of negligence against Chaney in his individual capacity as a plumber must be reinstated.
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Hill, J.:
In our system of ordered liberty, ordinances and statutes regulate the actions of people—while constitutions regulate the actions of states. In this case, we are confronted with the question whether the State has exceeded constitutional bounds by enacting a law making sexual relations between a teacher and student a crime. Charles L. Edwards, a Wichita area high school music instructor, engaged in sexual intercourse with one of his 18-year-old high school students. In this appeal of his unlawful sexual relations conviction, Edwards contends the statute defining his conduct as a crime is unconstitutional because it infringes upon his fundamental right, while in the privacy of his home, to engage in sexual conduct with a consenting adult. In sharp contrast, the State maintains Edwards has no constitutional right to have sexual relations with one of his students and there are legitimate reasons to make such conduct a crime. Because the statute applied in this case implicitly recognizes the disparity of power inherent in the teacher/student relationship, we conclude that the right of privacy does not encompass the right of a high school teacher to have sex with students enrolled in the same school system. We hold the statute in question is constitutional. Therefore, we affirm Edwards’s conviction.
There are no factual disputes here.
This prosecution is straightforward and uncomplicated. Edwards waived his right to a jury trial and made an agreement with the State about the facts. At Edwards’ bench trial, the parties stipulated that at the times pertinent to the charge:
• Edwards was a 30-year-old choir teacher employed by Wichita U.S.D. No. 259.
• A.C.A. was a student enrolled at the same high school where Edwards was employed.
• A.C.A. was 18 years old and had reached the age of majority and was an adult before March 2010.
• A.C.A. was the natural mother of a child as of March 2010 (although the State disputes the relevancy of this fact).
• Edwards and A.C.A. were not married to each other.
• A.C.A. willingly transported herself to Edwards’ home in Sedgwick County and supplied a condom worn by Edwards.
• Edwards engaged in consensual sexual intercourse with A.C.A.
• This act occurred on or about March 3, 2010, in Sedgwick County.
- That in return for the submission of this matter to the court for bench trial on stipulated facts, the State agreed to dismiss Counts 2 and 3 of the complaint/information.
Weighing these stipulations, the district court found Edwards guilty of unlawful sexual relations in violation of K.S.A. 21-3520(a)(8). See K.S.A. 2011 Supp. 21-5512(a)(8).
On appeal, Edwards argues K.S.A. 21-3520(a)(8) is unconstitutional because it infringes upon a privacy right protected by both the United States Constitution and the Kansas Constitution—the right to engage in private, consensual sexual conduct. We look first at the right of privacy.
We track the Supreme Court’s search for the right of privacy.
We begin our analysis by pointing out there is no specific language in either the Kansas Constitution or the United States Constitution guaranteeing the right to privacy. A series of cases dealing with contraception, pregnancy, and consensual sexual relations established this court-created right of privacy, when a court is considering intimate conduct.
The:Due Process Clause of die Fourteenth Amendment to the United States Constitution states simply: “[N]or shall any State deprive any person of life, liberty, or property, without due process of law.” But the question that arises is what liberty interests are protected by that Amendment? Our constitutional jurisprudence has placed privacy on the periphery, where it is implicitly recog nized because of the existence of other more certainly stated rights in tire Bill of Rights. It is a right created by inferences. For want of a better word, the astronomical term “penumbra” has been used to communicate that the right to privacy arises in the periphery, at the edge next to the more clearly stated rights. Justice Douglas wrote in Griswold v. Connecticut, 381 U.S. 479, 484, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965): “[S]pecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that give them life and substance. [Citation omitted.] Various guarantees create zones of privacy.” Griswold, striking down Connecticut’s ban against selling contraceptives as it applied to married persons, certainly implied there was, at least for married persons, an implicit right to marital privacy. 381 U.S. at 485-86. The cases that followed Griswold expanded the “zones of privacy.”
In Eisenstadt v. Baird, 405 U.S. 438, 448-54, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972), the Supreme Court pushed past Griswold by rejecting Massachusetts’ law banning the sale of contraceptives to unmarried persons, ruling the law impaired their personal rights, there-was no rational basis for the law, and the law was a violation of equal protection. Next, the Supreme Court announced its ruling in Carey v. Population Services International, 431 U.S. 678, 97 S. Ct. 2010, 52 L. Ed. 2d 675 (1977), where the Court overturned three New York rules: one against selling contraceptives to people younger than 16, one requiring contraceptives to be sold only by licensed pharmacists, and a third banning advertisements for these items or displaying them.
Even diough the “outer limits of the substantive sphere” of protected liberties have not been defined, the United States Supreme Court has indeed recognized certain liberties as protected—including a right of personal privacy or a guarantee of certain zones of privacy. Planned Parenthood of Southeastern PA. v. Casey, 505 U.S. 833, 848, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992). These zones of privacy includes certain rights deemed “fundamental”— such as those related to marriage, procreation, contraception, family relationships, and child rearing. Roe v. Wade, 410 U.S. 113, 152-53, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). The substantive component of the Due Process Clause protects only those rights considered to be fundamental. These “fundamental” rights include those clearly enumerated in the Bill of Rights, along with some other rights the Supreme Court has recognized as requiring constitutional protection. See Wooten v. Campbell, 49 F.3d 696, 699 (11th Cir. 1995).
But the case most pertinent to this appeal is Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003). In Lawrence, the United States Supreme Court held the Texas law against homosexual sodomy was unconstitutional. In the majority’s view, the Texas statute furthered no legitimate state interest which would justify its intrusion into an individual’s intimate personal and private life. The case was resolved by the Court deciding the petitioners were free, as adults, to engage in private conduct in die exercise of their liberty under the Due Process Clause. 539 U.S. at 560.
From this line of cases, we conclude that a court-recognized constitutional right to privacy is now out of the shadows and has become clearer with each Supreme Court case dealing with the subject. But we caution that liberty must never be confused with license.
We turn to the statute at issue.
The criminal charge here arises under K.S.A. 21-3520(a)(8), which defines unlawful sexual relations as engaging in consensual sexual intercourse, lewd fondling or touching, or sodomy with a person who is not married to the offender if
“the offender is a teacher or a person in a position of authority and the person with whom die offender is engaging in consensual sexual intercourse, not otherwise subject to subsection (a)(2) of K.S.A. 21-3502, or subsection (a)(1) of K.S.A. 21-3504, and amendments diereto, lewd fondling or touching, not odierwise subject to K.S.A. 21-3503, or subsection (a)(2) or (a)(3) of K.S.A. 21-3504, and amendments thereto, or sodomy, hot otíierwise subject to subsection (a) of K.S.A. 21-3505 or, subsection (a)(1) or (a)(2) of K.S.A: 21-3506, and amendments thereto, is a student enrolled at die school where the offender is employed.”
Significantly, according to the statute, a “teacher” includes teachers, supervisors, principals, superintendents, and any other professional employees in any public or privaté schools offering grades kindergarten through 12. K.S.A. 21-3520(b)(9). We note that other sections of the statute similarly prohibit sexual conduct between department of corrections employees and inmates, parole officers and parolees, and SRS employees and their clients or patients. See K.S.A. 21-3520(a)(1), (2), and (7).
It is beyond dispute that the interpretation of a statute and the determination of its constitutionality are questions of law over which an appellate court has unlimited review. When a court considers tire constitutionality of a statute, the court must presume the statute is constitutional. Consistent with this principle, all doubts must be resolved in favor of the statute’s validity; a court must interpret the statute in a manner that makes it constitutional if there is any reasonable way to do so within the apparent intent of the legislature in passing the statute. State v. Laturner, 289 Kan. 727, 735, 218 P.3d 23 (2009).
When read in its entirety, it is clear that the intent of this statute is to prohibit sexual conduct of certain persons who have authority over other persons where die ability to freely consent is questionable.
It is important to decide if a fundamental right is involved here.
Because of prior United States Supreme Court rulings, the determination whether a fundamental right has been implicated is important because it makes a difference in what state interest is at stake. If a fundamental right or interest is involved, a state law limiting that fundamental right can be justified only hy a compelling state interest. Roe, 410 U.S. at 155. In Planned Parenthood, 505 U.S. at 929, the Court said that limitations on the right to privacy are permissible only if they survive strict constitutional scrutiny—i.e., if the government can demonstrate the limitation is both necessary and narrowly tailored to . serve a compelling governmental interest. On the other hand, if a fundamental-right or interest is not implicated, the statute at hand is reviewed under the rational basis test. Under this test, a statute withstands a constitutional challenge as long as tire State identifies a legitimate state interest that the legislature could rationally conclude was.served by the statute. See Romer v. Evans, 517 U.S. 620, 631, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996). Obviously, the second test is easier to pass than the first.
Interestingly, the parties here frame the question whether K.S.A. 21-3520(a)(8) infringes a fundamental right much differently. Edwards suggests (without explicitly saying so) that the fundamental right at stake in this case is the right to consensual, private sex. The State frames the question as whether teachers have a right to consensual, private sex with their students. Edwards frames the issue in broad terms speaking of persons in general, while the State narrows the issue focusing on persons in authority, such as teachers. We will, just as the statute does, focus on the specific question and not the general.
We turn first to review cases from other jurisdictions.
Other state courts have ruled this is not a fundamental right.
No reported Kansas case has addressed whether a teacher has a fundamental right to engage in consensual sexual relations with adult students or whether there is a more general fundamental right to consensual sex between adults. When courts in other jurisdictions have addressed constitutional challenges to statutes similar to K.S.A. 21-3520(a)(8), those courts have applied a rational basis test when upholding the constitutionality of the statutes— meaning tire courts have concluded such statutes do not implicate a fundamental right.
In State v. Hirschfelder, 170 Wash. 2d 536, 242 P.3d 876 (2010), the Washington Supreme Court upheld a statute criminalizing sexual intercourse between school employees and students who are at least 16 years old. Hirschfelder was convicted under the statute after having sex with an 18-year-old student.
Hirschfelder challenged the constitutionality of the statute by arguing it violated his equal protection rights—complaining the statute did not apply to some school employees, such as those who interacted with students through certain school programs. On appeal, the Washington Supreme Court noted that the level of scrutiny in equal protection claims depends on tire nature of the classification or rights involved, noting a strict scrutiny review applies to laws burdening fundamental rights while a rational basis review applies when no fundamental right is involved. 170 Wash. 2d at 550. Noting Hirschfelder was not claiming school employees have a fundamental right to sexual relations with students, the court applied a rational basis review to uphold the statute. 170 Wash. 2d at 550-51. Quoting from a prior case, the court reasoned that student safety from sexual exploitation is important:
“ ‘The statute singles out public school employees because they have unique access to children, often in an unsupervised context, and can use that access to groom or coerce children or young adults into exploitive or abusive conduct. Given the important goals of providing a safe school environment for children and preventing the sexual exploitation of children, this distinction has a basis that is rationally related to those important and compelling government purposes.’ ” 170 Wash. 2d at 551 (quoting State v. Clinkenbeard, 130 Wash. App. 552, 567, 123 P.3d 872 [2005]).
Next, we turn to a case from Connecticut. In State v. McKenzie-Adams, 281 Conn. 486, 489-90, 915 A.2d 822 (2007), overruled in part on other grounds by State v. Payne, 303 Conn. 538, 34 A.3d 370 (2012), the defendant challenged a state statute prohibiting sexual intercourse between a school employee and a student. In that case, the defendant had engaged in sexual activity with two 16-year-old students. On appeal from his convictions, the defendant claimed the state statute violated his right of privacy under the state and federal Constitutions, which he claimed included the right to engage in noncommercial consensual sex with other adults. Notably, Connecticut law grants minors the legal capacity to consent to sex at age 16.
While addressing the issue on appeal, the Connecticut Supreme Court said it need not decide whether a fundamental right of sexual privacy exists generally because even if such a right exists, it does not protect sexual conduct in the context of an inherently coercive relationship such as the teacher-student relationship where consent might not easily be refused. 281 Conn. at 498-99. Applying the rational basis test, the court concluded the right of privacy does not encompass the right of a teacher to have sex with students enrolled in the same school system. 281 Conn. at 502. Noting the defendant’s claim that Lawrence establishes a fundamental right to sexual privacy, the court said it need not determine whether Lawrence established such a right because the defendant’s conduct would not be protected by that right. The court said this was because of the “disparity of power inherent in the teacher-student relationship.” 281 Conn. at 506.
In determining the Connecticut statute was rationally related to a legitimate government interest, the court reasoned that the State has an interest in providing a safe and healthy educational environment for school students. The court noted that school employees have unique access to students and are vested with great trust and confidence by the school, parents, and public. The court opined that the legislature could have sought to preserve or strengthen that trust by prohibiting school employees from misusing their access to students as a conduit for sex. The court said the legislature could also have concluded that a sexually charged learning environment may confuse, disturb, and distract students, thereby undermining the quality of education in the state. 281 Conn, at 507-08.
The Connecticut court concluded that because of the unique position of trust and the unsupervised access teachers have to coerce students into sexual conduct, no educational interest is promoted by such conduct and it should be prohibited:
“Elementary and secondary schoolteachers are entrusted with the important task of cultivating and educating impressionable young minds. Thus, not only are teachers afforded unique access to students, they also are vested with significant authority and control over those students. As such, a teacher easily could use his or her position of trust and authority to coerce a student into a sexual relationship. Indeed, in light of the significant disparity of power inherent in the teacher-student relationship, a student reasonably may not be able to refuse a teacher s sexual advances. Because die state has a strong interest in protecting and educating the elementary and secondary school students of this state, and because the defendant has failed to highlight any societal interest furthered by a recognition of a state constitutional right of sexual privacy between a teacher and a student, we conclude that this . . . factor weighs heavily in favor of the state. [Citation omitted.]” 281 Conn, at 514-15.
Moving on, we note that the Texas Court of Appeals in In re Shaw, 204 S.W.3d 9 (Tex. App. 2006), also upheld a state statute criminalizing sexual contact between school employees and students. There, the defendant first claimed the statute was overbroad and violated his rights under the First Amendment to the United States Constitution because it applied to all students, regardless of their age, and infringed upon his right to engage in consensual sex that other adults could engage in freely. The court on appeal rejected these arguments, holding the statute is not impermissibly broad when judged in relation to the statute’s legitimate sweep. The court observed that a vast majority of secondary school students are not adults. 204 S.W.3d at 15. The court also rejected the defendant’s next argument, that tire statute violates the Equal Protection Clause. In doing so, the court applied a rational basis test, noting Shaw had failed to demonstrate that school employees are a protected class. The court upheld the statute under a rational basis review, reasoning that protecting students from the pressures, emotional strain, conflicts, distractions, and other difficulties brought on by sexual conduct with school employees is a legitimate state interest. 204 S.W.3d at 18.
Finally, in a civil context, the Sixth Circuit Court of Appeals in Flaskamp v. Dearborn Public Schools, 385 F.3d 935 (6th Cir. 2004), upheld the constitutionality of a school board’s decision to deny tenure to a teacher based on her sexual conduct with a former student. Flaskamp filed a 42 U.S.C. § 1983 (2000) action against the school and its board members alleging the denial of tenure violated her Fourteenth Amendment rights—including her right to intimate association, right to privacy, and right to be free from arbitrary state action.
In rejecting Flaskamp’s argument that the statute burdened her right to intimate association, the court reasoned that only governmental action that has a direct and substantial influence on intimate association receives strict scrutiny review. 385 F.3d at 942. The court concluded the board’s action did not directly and substantially affect Flaskamp’s right of association, noting it did not prevent teachers from dating a “wide range” of other adults and there was a plausible policy reason for the statute under the rational basis test. 385 F.3d at 943-44. In rejecting Flaskamp’s argument that the board violated her right to privacy, the court again reasoned that the board’s action did not directly and substantially affect her right of privacy. 385 F.3d at 944-46.
We examine a ruling of the Arkansas Supreme Court cited by Edwards.
Only one case cited by Edwards supports the view that a fundamental right is at stake here, so that a strict scrutiny review should apply. In Paschal v. State, No. CR 11-673, 2012 Ark. 127, 388 S.W.3d 429, the Arkansas Supreme Court determined drat a state statute criminalizing sexual conduct between a teacher and a student (who is younger than 21) violated the Arkansas Constitution. 2012 WL 1034538, at *8-15. There, high school teacher Paschal was engaged in a consensual sexual relationship with an adult student. After Paschal was convicted of sexual assault under the relevant statute, Paschal challenged the statute on the basis that it infringed upon his fundamental rights.
On appeal, the State argued there is no fundamental right for a teacher to have sex with an 18-year-old student. The Arkansas Supreme Court rejected the State’s characterization of die issue, instead framing the issue as “whether the statute, as applied in this case, infringes on Paschal’s fundamental right to engage in private, consensual, noncommercial acts of sexual intimacy with an adult.” 2012 WL 1034538, at *10-11. Applying a strict scrutiny review, the court held that the statute criminalizes consensual sex between adults and, therefore, infringes on the fundamental right to privacy. 2012 WL 1034538, at *11-12. For support, the court noted that although the General Assembly may have intended to criminalize a teacher’s use of his or her position of trust or authority to procure sex, the statue did not specifically state such an intent. 2012 WL 1034538, at *11. And according to the court, even if the State had asserted a compelling state interest preserving the learning environment and protecting students from teachers who have authority and control), the statute was not the least restrictive method available to carry out this interest. 2012 WL 1034538, at *13. The court noted another state statute that was available to advance the State’s interest—one that prohibits a person in a position of trust or authority over a victim from using that position to gain sex. 2012 WL 1034538, at *14.
The Arkansas Supreme Court specifically relied upon a prior Arkansas case in which the court construed its state constitution as protecting all private, consensual, noncommercial acts of sexual intimacy between adults. 2012 WL 1034538, at *9; see Jegley v. Picado, 349 Ark. 600, 632, 80 S.W.3d 332 (2002). In Jegley, the court held the fundamental right to privacy implicit in the Arkansas Constitution protects all private, consensual, noncommercial acts of sexual intimacy between adults and struck down the Arkansas sodomy law. 349 Ark. at 632.
In Kansas, no court has ever construed our state constitution in such a manner. Also, Edwards does not argue that our Kansas Constitution provides such protection for private, consensual, noncommercial acts of sexual intimacy between adults, as the Arkansas Constitution prorides.
We conclude that no fundamental right is involved here.
The United States Supreme Court in Lawrence—the case most frequently cited to support the right to consensual sexual privacy— did not make explicit whether it viewed this right as a fundamental right. At one point the Court said the “right to liberty” under the Due Process Clause gives homosexual persons the right to engage in sodomy without State intervention—thereby suggesting a fundamental right to sexual privacy was at stake. But the Court’s ultimate conclusion was that the Texas statute furthered “no legitimate state interest,” thereby suggesting the Court applied a rational basis review. 539 U.S. at 578. We find it significant that some federal courts have construed Lawrence as failing to recognize a fundamental right to sexual privacy. See Muth v. Frank, 412 F.3d 808, 817-18 (7th Cir. 2005); Williams v. Attorney General of Ala., 378 F.3d 1232, 1236 (11th Cir. 2004).
Finally, in two of the key Supreme Court cases Edwards relies upon—Roberts and Lawrence—the Court’s focus was on whether certain personal relationships are afforded constitutional protection. In Roberts v. United States Jaycees, 468 U.S. 609, 619, 621-22, 104 S. Ct. 3244, 82 L. Ed. 2d 462 (1984), the Court found that the Jaycees’ membership policies did not create relationships worthy of constitutional protection, while the Lawrence court held that adult homosexual relationships were protected relationships. Lawrence, 539 U.S. at 563-64, 578. The Roberts Court explained there are some “limitations on the relationships that might be entitled to . . . constitutional protection.” 468 U.S. at 619.
The teacher/student sexual relationship is not a relationship that warrants protection as a fundamental right. We will therefore apply a rational basis test in reviewing K.S.A. 21-3520(a)(8).
There is a legitimate state interest rationally promoted by this law.
We note, as other courts have done, that teachers have constant access to students, often in an unsupervised context. Thus, teachers are in a unique position to groom or coerce students into exploitive or abusive conduct. It is uncontestable that the State must provide a safe school environment for students, which includes preventing the sexual exploitation of students. Teachers are vested with a great deal of trust by the school districts, the parents, the public, and the students themselves. Our legislature has sought to preserve that trust by prohibiting teachers from misusing their access to students as a means to obtain sex. A sexually charged learning environment would confuse, disturb, and distract students, thus undermining the quality of education in Kansas. See McKenzie-Adams, 281 Conn. at 507-08; Hirschfelder, 170 Wash. 2d at 551.
We find it exceedingly important that the United States Supreme Court in Lawrence specifically noted: “The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused.” (Emphasis added.) 539 U.S. at 578.
This case does involve persons who are situated in a relationship where consent may not be easily refused. In Kansas, children are required by law to attend school “continuously” and are only exempt from this requirement at age 16 or 17 by written parental consent;, by court order, or in other circumstances not relevant here. See K.S.A. 2011 Supp. 72-1111(a), (b). Students are a captive audience in the classrooms, the gymnasiums, and the music practice halls of this state. Students veiy well may not have the nec-essaiy level of maturity to remove themselves from a sexually charged situation.
Equally important is the fact that a different statute, K.S.A. 21-3522, makes voluntary sexual relations with children younger than 16 a crime. This is commonly referred to as the age of consent. This means if we were to strike down K.S.A. 21-3520, there would be no restriction against teachers having sexual relations with children who are 16 and 17, as well as those who are 18 years old as the case was here. We are not prepared to hold that the maturity level of a 16-year-old is comparable to another student who is 18. We cannot say that a 16-year-old student has the same ability to refuse consent to sexual relations with a teacher as a student who is 18.
Going further along this line, we note that the legislature in 2007 removed from the unlawful sexual relations statute, K.S.A. 21-3520(a)(8), any language concerning the age of tire student. See L. 2007, ch. 172, sec. 2. When the legislature revises an existing law, it is presumed the legislature intended to change the law from what existed prior to the amendment. It is likewise presumed the legislature does not intend to enact useless or meaningless legislation. State v. Sedillos, 279 Kan. 777, 782, 112 P.3d 854 (2005). From this amendment, we conclude that the age of the student is not as important to the legislature as the relationship of teacher/student. Not even Edwards argues that a social interest is promoted by teachers and students dating.
Moreover, K.S.A. 21-3520(a)(8) is narrowly tailored to serve the State’s compelling interest. The statute does not infringe upon any sexual activity unrelated to the job of teachers and does not prevent teachers from having sexual relationships with adults who are not students.
We have several reasons why we are not persuaded by Paschal. First, as pointed out previously, in reaching its holding the Paschal court specifically cited Arkansas precedent in which the state constitution had been construed as protecting all private, consensual, noncommercial acts of sexual intimacy between adults. 2012 WL 1034538, at *9. Similar precedence is lacking in Kansas. Second, as one of the several dissenting justices pointed out in Paschal, the majority in that case “skews and minimizes the role of a teacher” and views the sexual relationship as merely one between consent ing adults. 2012 WL 1034538, at *18 (Brown, J., concurring in part and dissenting in part; joined by Gunter and Baker, JJ.). Our view of the teacher/student relationship is not so narrow.
But more importantly, the Paschal majority emphasized that the Arkansas statute did not specifically state that the teacher’s behavior was criminal because he or she is in a position of trust or authority. 2012 WL 1034538, at *11. There is a specific Arkansas statute making it a crime to use a position of trust or authority to coerce another into having sexual relations. See Ark. Code Ann. § 5-14-126(a)(1)(B) (Repl. 2006). Kansas has no such statute.
On this point, Edwards contends in his reply brief drat the legislature failed to include language about the position of authority of teachers over students and this court should not read any such language into the law. Two points lead us to a contrary view. First, as a dissenting justice in Paschal pointed out, it is “preposterous” to think that a teacher may be unaware of his or her authority; any teacher knows that he or she occupies a position of trust and authority and to say that such authority vanishes when a student turns 18 ignores the realities of the teacher/student relationship. 2012 WL 1034538, at *18-19 (Brown, J., concurring in part and dissenting in part). Secondly, in contrast to the Arkansas crime, our Kansas statute does recognize the aspect of authority. The statute provides that the sexual relations at issue are unlawful if tire offender “is a teacher or a person in a position of authority.” K.S.A. 21-3520(a)(8). A fair reading of the entire statute reveals that all of the prohibited conduct arises from circumstances where the offender has authority of some sort over another person.
Finally, tire Paschal court cites no caselaw to support its holding (as it pertains to the teacher/student situation in particular) and fails to acknowledge McKenzie-Adams, Hirschfelder, and Flaskamp.
We hold there is a rational basis to find K.S.A. 21-3520(a)(8) is constitutional.
We deal with some arguments raised hy Edwards.
Edwards says K.S.A. 21-3520(a)(8) does not pass the strict scrutiny test for three reasons: First, the statute was passed to appease one person who had no standing to complain; second, the same conduct—-sex with students—is not criminal in the college setting; and third, the statute imposes criminal liability even though Idaho and Iowa courts have determined there is no civil liability for tire same conduct. All three arguments leave us unconvinced.
We find the first argument curious. Edwards claims that K.S.A. 21-3520(a)(8) was enacted only to “appease one parent” who was “upset that the person with whom her adult daughter had a consensual relationship would not be prosecuted for getting her pregnant.” While it is true that a parent did testify about the bill amending this law, Edwards’ assertion that the law was amended just for this reason is unsupported speculation on his part. Clearly, the legislature did not say so. Even if this were true, it would not mean the statute is unconstitutional. Many legislative enactments arise from suggestions by complaining citizens. In addition, our United States Supreme Court has said that “because we never require a legislature to articulate its reasons for enacting a statute, it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature.” F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 315, 113 S. Ct. 2096, 124 L. Ed. 2d 211 (1993).
Next, Edwards argues that because it would have been legal for him to engage in a sexual relationship with A.C.A. had she been a college student and he a professor, this fact somehow makes K.S.A. 21-3520(a)(8) unconstitutional. While it is true that both situations involve learning environments, the circumstances are hardly comparable. High school attendance is mandatory—except for those who fall under a statutory exception—while attendance at college is voluntary. Most of the children attending K-12 schools are minors, while most college students are adults. In our view, the fact that K.S.A. 21-3520(a)(8) is limited to teachers and students in their schools, actually supports the constitutionality of the statute— as it causes the statute to be more narrowly tailored to support the State’s interest in prohibiting teacher/student sex with persons who may not be capable of easily refusing consent to sexual conduct.
Finally, the fact that Idaho and Iowa courts have refused to find civil liability based on a teacher’s sexual relations with a student does not malee Kansas’ criminal statute unconstitutional. Edwards cites no support for the proposition that there can be no criminal liability where there is no corresponding civil liability. And other courts have held a student does have an action against a teacher for an alleged violation of the Fourteenth Amendment—as a basis for a 42 U.S.C. § 1983 claim—when there was a consensual sexual relationship between the student and teacher. See Kinman v. Omaha Public School Dist., 171 F.3d 607, 609-11 (8th Cir. 1999); Doe v. Claiborne County, Tenn., 103 F.3d 495, 506 (6th Cir. 1996); Doe v. Taylor Independent School Dist., 15 F.3d 443, 451 (5th Cir. 1994).
In conclusion, we are persuaded that the State has a legitimate interest in keeping the environment of those children required by law to attend school safe and free from sexual coercion from those in positions of authority or trust. This law recognizes the disparity of power inherent in the teacher/student relationship. Students attend school to learn and should not be subject to sexual pressures from their teachers. There is a rational basis for this law. It is constitutional. We affirm the conviction. | [
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|
McAnany, J.:
This is an action to foreclose on the mortgage of a home. The district court granted summary judgment in favor of the plaintiff. The mortgagors Steven McConnell and his wife, Janet McConnell, appeal. The McConnells raise a number of issues regarding the propriety of U.S. Bank’s foreclosure action and of the district court’s entry of summary judgment. Having considered each in detail, we find no error and affirm the district court.
Facts
On July 13, 2005, Steven McConnell executed an adjustable rate promissory note in the principal sum of $94,500 to be repaid in monthly installments over 30 years. Janet McConnell did not sign the note. Flatirons Financial, LLC, originated the loan. The loan was secured by a mortgage on the McConnells’ home. Both Steven and Janet signed the mortgage. The mortgage was recorded with the Johnson County Register of Deeds on the following day.
In March 2008, Steven entered into a “Balloon Loan Modification Agreement” with U.S. Bank (Bank), the holder of the note. At least by April 1, 2008, the note was in default, and the Mc-Connells do not dispute this fact.
In October 2008, the Bank filed this action to foreclose on the mortgage. The Bank did not seek a personal judgment against Steven on the unpaid note.
On November 21, 2008, tire court entered an order extending the McConnells’ date for filing their responsive pleading to December 24, 2008. Then on January 13, 2009, the Mortgage Electronic Registration Systems (MERS) assigned the McConnell mortgage to the Bank. As stated in In re Martinez, 444 B.R. 192, 196 (Bankr. D. Kan. 2011):
“Tire MERS System, a database owned by MERSCORP, Inc., tire parent company of MERS, is designed to allow its members, which include originators, lend-ex's, seiricei's and investor's, to accurately and efficiently track ti’ansfers of servicing rights and beireficial ownership in the notes that are secured by the mortgages and deeds of trust held by MERS.”
When no responsive pleading was forthcoming from the Mc-Connells on December 24, 2008, the district court entered default judgment in favor of the Bank on February 9, 2009. On February 20, 2009, the court ordered a sheriff s sale of the property.
Five days later, on February 25, 2009, tire McConnells moved for leave to file their answer out of time and to set aside the default judgment. The district court granted both motions. In their answer, the McConnells admitted that Steven executed the note and that they both executed the mortgage and that “they may be delinquent in their mortgage payments.” However, the McConnells disputed the Bank’s ownership of the note and tire mortgage. The Mc-Connells claimed the Bank was not the real party in interest, had violated their homestead rights, and had violated the Kansas Consumer Protection Act (KCPA), K.S.A. 50-623 et seq.
On March 17,2009, the January 13,2009, the MERS assignment of the mortgage to the Bank was recorded.
On June 1, 2009, tire Bank moved for summary judgment, asserting that it was tire holder of the note and mortgage, that the promissory note was in default, and that less than ½ of the principle of the note had been repaid. In support of its motion the Bank included (1) an affidavit of Kathy Watson, the asset manager of the company that serviced loans for the Bank, with an accompanying ledger detailing the mortgage loan records; (2) the August 8, 2008, “Notice to Collect Debt” letters addressed to the McConnells; (3) an unofficial reinstatement letter detailing the reinstatement totals; and (4) a document dated January 13, 2009, detailing the assignment and transfer of tire mortgage from MERS to the Bank.
The McConnells failed to respond to the motion, and the court entered summary judgment in favor of the Bank on July 15, 2009.
On August 5, 2009, the Bank moved to set aside the judgment, stating that “the parties have agreed to set aside tire Judgment in anticipation that the Debtor will be able to bring the loan current.” On August 6, 2009, the district court granted the motion and set aside the judgment.
On July 30, 2010, the McConnells filed their brief opposing the Bank’s summary judgment motion. There followed various continuances. The hearing on tire Bank’s motion was continued from April 22, 2011, to June 27, 2011, to allow the McConnells time to review the assignment documents and to submit additional discovery requests to tire Bank.
At tíre June 27,2011, hearing on the summary judgment motion, the McConnells’ counsel asked for a further continuance to conduct more discovery because “the note didn’t transfer with the mortgages necessarily, or at least I can’t tell.... I don’t understand how MERS could then transfer what they don’t own.” The Bank’s counsel replied, “MERS is an agent, pure and simple.” Upon questioning by the court, the Bank’s counsel stated, “This loan was transferred into MERS at one point in time in—it’s been transferred several times. It was transferred into MERS at one point in time into tire MERS system and it has since been transferred out. It was actually transferred out quite some time ago.” The court denied a continuance but permitted the Bank to file a reply brief on these issues before ruling on the merits. Thereafter, the Bank filed its reply, and the McConnells filed their final response.
On July 30, 2011, the district court granted U.S. Bank’s motion for summary judgment. The court ruled:
• U.S. Bank was the holder of the note and was entitled to enforce both the note and die mortgage.
• The McConnells’ claims that U.S. Bank violated the KCPA were not properly identified as counterclaims and were also not substantiated by anything of evidentiary value.
• Janet McConnell, by signing the mortgage, consented to the alienation of the homestead under K.S.A. 60-2301; therefore, the mortgage was enforceable as to her.
On October 4,2011, the district court entered its final judgment, and the McConnells then appealed.
Standard of Review
The parties are well acquainted with the standards for granting summary judgment. They are stated in detail in O’Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 330, 277 P.3d 1062 (2012). In our de novo review of the Bank’s motion, we apply those same standards.
Standing
The McConnells challenge the Bank’s standing in this foreclosure action because it was not the holder of the note and mortgage on the day suit was filed.
In Kansas, standing is a part of subject matter jurisdiction, and the issue may be raised by the parties or the court at any time. Vorhees v. Baltazar, 283 Kan. 389, 397, 153 P.3d 1227 (2007). We have unlimited review over whether the Bank had standing to bring this foreclosure action. See Board of Sumner County Comm’rs v. Bremby, 286 Kan. 745, Syl. ¶ 1, 189 P.3d 494 (2008).
“Standing is a question of whethér the plaintiff has alleged such apersona! stake in the outcome of a controversy as to warrant invocation of jurisdiction and to justify exercise of the court’s remedial powers on his-or her behalf. A party must have a sufficient stake in the outcome of an otherwise justiciable controversy in order to obtain judicial resolution of that controversy. The party must have personally suffered some injury and there must be a causal connection between the injuiy and the challenged conduct.” Mortgage Electronic Registration Systems v. Graham, 44 Kan. App. 2d 547, Syl. ¶ 1, 247 P.3d 223 (2010).
There is no' question that the Bank held the note before filing this foreclosure action. The Bank and Steven entered into a loan modification agreement dated March 7, 2008, in which Steven acknowledged that the Bank held the note and the mortgage at the time. Steven signed the agreement and his lawyer, the same lawyer representing the McConnells in this foreclosure, witnessed Steven's signature. But this suit was filed on October 2, 2008, and the mortgage was not formally assigned to the Bank until January 13, 2009.
K.S.A. 60-217 provides that “[ejvery action shall be prosecuted in the name of the real party in interest.” The statute further provides:
“No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.” K.S.A. 60-217.
Thus, it is apparent that commencement of an action by one who is not the real party in interest can be corrected in certain circumstances, and the correction relates back to the date the action was commenced.
In Kansas, it has been the law since 1899 that the note follows the mortgage. In other words, if one holds the mortgage, it necessarily follows that one also holds the note that the mortgage secures. Thus, K.S.A. 58-2323 provides: “The assignment of any mortgage as herein provided shall cany with it the debt thereby secured.” The question is whether the converse is true: Does the mortgage follow the note? If not, can the absence of the mortgage be corrected by a later transfer and thereby satisfy tire standing requirement of K.S.A. 60-217?
In McLean v. JP Morgan Chase Bank Nat. Ass'n, 79 So. 3d 170 (Fla. Dist. App. 2012), the Florida District Court of Appeals dealt with a comparable situation. Chase brought suit to foreclose on a mortgage given by McLean to secure his note, but the mortgage was not assigned to Chase until 3 days after suit was filed. Chase moved for summary judgment and attached an affidavit stating that it was the owner of the note and mortgage but did not specify when Chase acquired the note in relation to the date suit was filed. Citing Florida case authorities, the court noted:
“ ‘[A] mortgage is but an incident to the debt, the payment of which it secures, and its ownership follows the assignment of the debt. If tire note or other debt secured by a mortgage be transferred without any formal assignment of the mortgage, or even a delivery of it, the mortgage in equity passes as an incident to the debt
“Even in the absence of a valid written assignment, the ‘mere delivery of a note and mortgage, with intention to pass the title, upon a proper consideration, will vest the equitable interest in the person to whom it is so delivered.’ Johns v. Gillian, 134 Fla. 575, 184 So. 140, 143 (1938). Thus, where there is an indication that equitable transfer of the mortgage occurred prior to the assignment, dismissal of the complaint is error, even if the assignment was executed after the complaint was filed. See Salomon, 874 So.2d at 682-83.” 79 So. 3d at 173.
While this Florida court held that standing to foreclose could not be cured by an after-filing assignment of the note, the court held that there were still ways in which the plaintiff could establish standing to foreclose.
“Where the plaintiff contends that its standing to foreclose derives from an endorsement of the note, the plaintiff must show that the endorsement occurred prior to the inception of the lawsuit. If tire note or allonge reflects on its face that the endorsement occurred before the filing of the complaint, this is sufficient to establish standing. [Citation omitted.]” 79 So. 3d at 174.
Thus, the key document granting standing was die note, not the mortgage, since the mortgage followed the note. Because the assignment of the note did not specify the date on which the assignment occurred, Chase’s summary judgment was reversed and the case remanded for a determination of when Chase acquired the note in relation to the date suit was filed. 79 So. 3d at 174-75.
CitiMortgage, Inc. v. Patterson, 2012 Ohio 5894, 984 N.E.2d 392 (2012), presented a similar situation. The assignment of the mortgage to CitiMortgage occurred 9 days after CitiMortgage filed its mortgage foreclosure action. CitiMortgage obtained a default judgment, and Patterson moved to set it aside, claiming Citi-Mortgage lacked standing to foreclose. The district court set aside the default judgment and dismissed the action on the grounds that CitiMortgage lacked standing to prosecute the action.
CitiMortgage argued that any defect in standing was cured when it obtained an assignment of the mortgage before obtaining a default judgment against Patterson. The Ohio Court of Appeals cited the Ohio Supreme Court’s decision in Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St. 3d 13, 979 N.E.2d 1214 (2012), in which the court stated that while the plaintiff could not obtain standing through a postfiling assignment of the mortgage,
“ ‘[h]ere, Federal Home Loan concedes that there is no evidence that it had suffered any injury at the time it commenced this foreclosure action. Thus, because it failed to establish an interest in the note or mortgage at the time it filed suit, it had no standing.’ ” CitiMortgage, 984 N.E.2d at 396.
From this the CitiMortgage court reasoned that though the plaintiff did not obtain an assignment of the mortgage until after suit was filed, unlike the plaintiff in Schwai~tzwald, CitiMortgage held the note at the time it filed suit and being the holder of the note it had standing to pursue this action. Thus, the trial court erred in setting aside CitiMortgage’s judgment. 984 N.E.2d at 398.
Here, the record conclusively shows that the Bank held Steven’s note, which was the subject of a loan modification agreement the parties entered into well before the Bank initiated this foreclosure action.
Kansas has long held that the holder of the note is also tire holder of the mortgage securing it. In Anthony v. Brennan, 74 Kan. 707, 87 P. 1136 (1906), the plaintiff obtained an assignment of the mortgage from one, but not all, of the mortgagees before filing a foreclosure action. The mortgagor claimed the plaintiff lacked standing, and the plaintiff s later efforts to obtain assignments from the remaining mortgagees did not cure the standing defect that existed at the time suit was filed. In rejecting the mortgagor s argument, the court cited O’Keeffe v. National Bank, 49 Kan. 347, 30 P. 473 (1892), in which the court held that “the title to a note and the mortgage securing its payment passed by delivery, and that the possession of the instruments and their production at the trial by the plaintiff furnished prima facie evidence of his ownership.” Anthony, 74 Kan. at 708-09.
In Middlekauff v. Bell, 111 Kan. 206, 207, 207 P. 184 (1922), our Supreme Court held:
“An assignment of a mortgage is merely a formal transfer of title to tire instrument, and tire assignment from the bank to the plaintiff was admittedly good for that purpose. The plaintiff, however, did not need the assignment in order to invest her widr ownership of the mortgage. She acquired full title by purchase of the note which it secured, and the assignment may be excluded from consideration without prejudice to her lien.”
The court reasoned:
“ ‘The mortgage is a mere security, creating a lien upon the property, but vesting no title. The debt secured by the mortgage is the principal tiling, and the mortgage die mere incident following the debt wherever it goes, and deriving its character from the instrument which evidences die debt.’ ” 111 Kan. at 208.
Further, the Middlekauff court quoted Insurance Co. v. Huntington, 57 Kan. 744, Syl. ¶ 1, 48 P. 19 (1897): “ ‘The assignment and delivery of a negotiable promissory note'before maturity operates as an assignment of a mortgage given as security for the payment of the note/ ”111 Kan. at 209.
In a case with disparate facts, Army Nat’l Bank v. Equity Developers, Inc., 245 Kan. 3, 17, 774 P.2d 919 (1989), the court reaffirmed this notion by stating: “Our view is that tire mortgage follows the note. A perfected claim to the note is equally perfected as to the mortgage.”
Likewise, in MetLife Home Loans v. Hansen, 48 Kan. App. 2d 213, Syl. ¶ 5, 286 P.3d 1150 (2012), a panel of our court held that the mortgage follows the note when it stated: “The transfer of an obligation or debt secured by a mortgage also transfers the mortgage unless the parties to the transfer agree otherwise.” Further: “Kansas law favors keeping the mortgage and the right of the enforcement of the obligation it secures in the hands of tire same person or entity.” 48 Kan. App. 2d 213, Syl. ¶ 6.
Finally, Restatement (Third) of Property (Mortgages) § 5.4(a) (1996) provides: “A transfer of an obligation secured by a mortgage also transfers the mortgage unless the parties to the transfer agree otherwise.”
This approach is consistent with the reality of modern residential lending practices, in which the lender or a later holder of the note ordinarily does not look to the borrower’s financial ability to satisfy a money judgment in the event of default on the note, but rather to the value of the home which stands as collateral for the debt. That was the case here, where the Bank did not seek a personal judgment against Steven but only sought to foreclose on the residence which stood as collateral for the loan.
Because the mortgage followed the note and there is no genuine fact issue about the Bank being the holder of the note at the time suit was filed, we conclude that the Bank had standing to pursue this foreclosure action. The formal assignment of the mortgage after the date suit was filed did not create a genuine issue of material fact that stood in the way of summary judgment because, under the analyses in JP Morgan Chase, CitiMortgage, and the Kansas cases discussed above, the fact that the Bank held the promissory note was sufficient to give it standing to pursue this action.
The McConnells’ KCPA Counterclaims
The McConnells argue that the district court erred in granting summary judgment to the Bank without first addressing tire KCPA claims that they raised in their answer to the petition for foreclo sure and in their response to the Bank’s motion for summary judgment.
In the McConnells’ answer to the Bank’s petition, they alleged that the Bank violated the KCPA by engaging in unfair and deceptive acts and practices, including: (1) wrongful acceleration of the loan; (2) failure to provide the McConnells any opportunity to mitigate or obtain mortgage forbearance or mortgage modification opportunities; and (3) breach of the Bank’s duty of good faith and fair dealing. The McConnells reiterated these alleged violations of the KCPA in their memorandum in opposition to the Bank’s motion for summary judgment. The McConnells did not support these allegations with any evidence or argument regarding the elements of tire alleged KCPA violations.
In ruling on the Bank’s motion for summary judgment, the district court stated:
“Defendants also argue that summary judgment cannot be granted without considering whether Plaintiff has committed violations of the [KCPA], Although die KCPA violations were [mentioned] in Defendants’ Answer, diey were not properly identified as a part of a formal counterclaim and are currently unsubstantiated by anything of evidentiary value. Therefore, the Court need not address Defendants’ KCPA arguments prior to considering Plaintiffs Motion for Summary Judgment.”
The McConnells contend that the district court erred in stating that it was necessary to formally allege their defenses as counterclaims before tire court would consider them. The McConnells point to K.S.A. 2012 Supp. 60-208(c), which provides: “(2) Mistaken designation. If a party mistakenly designates a defense as a counterclaim or a counterclaim as a defense, the court must, if justice requires, treat the pleading as though it were correctly designated, and may impose terms for doing so.”
But the district court also clearly stated that the McConnells’ KCPA claims “are currently unsubstantiated by anything of evi-dentiary value.”
The McConnells claim drat die Bank never responded to their allegations of KCPA violations and that this failure to respond should be viewed as an admission of the KCPA violations. But in its motion for summary judgment, the Bank specifically responded to the McConnells’ claims that it violated the KCPA:
“The Defendants assert that the Plaintiff violated the [KCPA] by engaging in unfair and deceptive practices. They cite the Plaintiff s ‘wrongful acceleration of the loan’ and the incursion of ‘foreclosure related fees and costs’ without first providing notice. However, the acceleration was not wrongful since the Defendants have a balance due and owning since March 1, 2008, and they were sent notice of their default on or about August 8, 2008. Nor was the commencement of foreclosure proceedings wrongful, since the Defendants are in default, have had proper notice, and have not taken the opportunity to cure the default. The Plaintiffs have a right to bring suit under the terms of the mortgage and note, and have satisfied all requirements to do so.”
The McConnells did not respond to these assertions in opposing the Bank’s summary judgment motion.
To oppose a motion for summary judgment, a party must come forward with something of evidentiary value to establish a material dispute of fact. O’Brien, 294 Kan. at 330. “Summary judgment is appropriate on claims under the KCPA if there is no evidence of deceptive or unconscionable acts. [Citations omitted.]” Bomhoff v. Nelnet Loan Services, Inc., 279 Kan. 415, 424, 109 P.3d 1241 (2005).
K.S.A. 2012 Supp. 60-256(e)(2) provides:
“When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must, by affidavits or by declarations pursuant to K.S.A. 53-601, and amendments thereto, or as otherwise provided in this section, set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party.”
No such evidence was forthcoming from the McConnells, and their mere allegations in a pleading are not an effective substitute. K.S.A. 2012 Supp. 60-256(e)(2). Even on appeal, they have not provided any argument to support their contentions that the Bank violated the KCPA. Issues not briefed are deemed abandoned. See Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011).
The McConnells have failed to present any evidence which would create a genuine issue of material fact regarding their KCPA claims which would bar summary judgment.
Appropriateness of Summary Judgment
The Bank presented a prima facie case for summary judgment based on evidence that Steven signed the note and Steven and Janet signed tire mortgage, that Steven has defaulted in tire repayment of the note, and that the Bank is now the holder of the note and tire mortgage. See Hansen, 48 Kan. App. 2d at 218. The McConnells raise a number of assertions which they claim bar the entry of summary judgment against them.
First, the McConnells refer to a law review article by Christopher Peterson, Foreclosure, Subprime Mortgage Lending, and the Mortgage Electronic Registration System, 78 U. Cin. L. Rev. 1359 (2010), which the McConnells claim “gives great insight as to the inner works of MERS and the problems that arose as a result of tire use of MERS and the securitization process in the subprime mortgage market.” The McConnells then “incorporate the law review article” in their appellate brief but do not explain how it supports dre arguments they now make in opposing summaiy judgment.
Next, the McConnells contend that the record does not establish the chain of title of the mortgage. They claim that the Bank presented no evidence regarding the transfer or assignment of tire note. The Bank responds that a complete chain of title was produced to the court. But the controlling factor is whether the Bank was the holder of the note and mortgage so as to have standing to bring this action. As discussed above, that clearly was the case.
But the McConnells argue that the note was not negotiable because Steven was already in default when the purported transfer to the Bank occurred. The McConnells base this argument on the assertion that tire Bank could not have been a holder in due course under K.S.A. 84-3-302. It is true that a holder in due course takes the instrument and may enforce it without being subject to the obligor s defenses. See K.S.A. 84-3-302, Comment 4; Kaw Valley State Bank & Trust Co. v. Riddle, 219 Kan. 550, 555, 549 P.2d 947 (1976). But the Bank was still the holder of the note, and tire McConnells have failed to present facts supported by a viable legal theory that bar summary judgment on the note which clearly was in default.
Next, the McConnells claim the district court erred in requesting additional pleadings “with no concomitant right to discovery, especially regarding the documents that were first produced to Defendants’ counsel earlier that day.” Unlike the de novo review of the Bank’s summary judgment motion which we have conducted so far, this argument is premised on the district court having abused its discretion on a discovery question. Troutman v. Curtis, 286 Kan. 452, 458-59, 185 P.3d 930 (2008).
The district court did not permit the filing of additional pleadings. Rather, the judge allowed additional briefing, following which “[i]f I determine that there’s still some unanswered questions or issues, then I’ll probably grant [the defendants] some time for additional discovery.” The parties provided additional briefing. In their final brief, the McConnells sought additional discovery on the chain of title to the note and mortgage. The district court denied additional discovery, stating:
“This matter has been pending since October 8, 2008. Now almost three years later, Defendants claim that further discovery is necessary. This Court finds that Defendants have had ample time to conduct discovery, and the Court has delayed ruling on the merits of the subject Motion for well over a year. . . . [T]he Court finds that Defendants have been given more than enough time to conduct discovery.”
We find no abuse of the district court’s discretion in this ruling.
Finally, the McConnells claim that the documents and affidavits provided in support of the Bank’s motion for summary judgment contained hearsay statements. They specifically attack the affidavit of Kathy Watson, the asset manager of the company that serviced the loan.
But Watson’s affidavit was introduced to establish that Steve was in default on the note, a fact which was uncontroverted. Through Watson’s affidavit the Bank established the unpaid balance on Steven’s promissory note. But the Bank is not seeking a personal money judgment against Steven, only foreclosure of the mortgage. Watson asserts that less than one-third of the original balance of the note has been repaid, and the McConnells admit this fact. While the McConnells question the calculation of interest on the note, because no personal judgment is being sought against Steven and there is no issue about redemption rights in view of the agreed unpaid principle on the loan, any dispute regarding the facts contained in the Watson affidavit do not involve disputed issues of material fact which precludes summary judgment.
Severance of the Note from the Mortgage
As a stand-alone argument against granting summary judgment of foreclosure, the McConnells argue that the note and the mortgage were severed when the note was held by the Bank and the mortgage was held by MERS. They claim that tire severance cannot be cured by MERS’s subsequent assignment of the mortgage to the Bank.
Our Supreme Court described the problems that arise when a mortgage is separated from the promissory note it secures by quoting Bellistri v. Ocwen Loan Servicing, LLC, 284 S.W.3d 619, 623 (Mo. App. 2009), in which the Bellistri court stated:
“ ‘The practical effect of splitting the deed of trust from the promissory note is to make it impossible for the holder of the note to foreclose, unless the holder of the deed of trust is the agent of the holder of the note. [Citation omitted.] Without tire agency relationship, tire person holding only tire note lacks the power to foreclose in the event of default. The person holding only the deed of trust will never experience default because only the holder of the note is entitled to payment of the underlying obligation. [Citation omitted.] The mortgage loan becomes ineffectual when the note holder did not also hold the deed of trust.’ ” Landmark Nat'l Bank v. Kesler, 289 Kan. 528, 540, 216 P.3d 158 (2009).
Thus, our Supreme Court held: “Indeed, in tire event that a mortgage loan somehow separates interests of the note and the [mortgage] with the [mortgage] lying with some independent entity, the mortgage may become unenforceable.” (Emphasis added.) 289 Kan. at 540.
While the McConnells argue Steven’s note became severed from the McConnells’ mortgage, they fail to explain how the note holder’s interest and the mortgagee’s interest could not later be reunited before judgment.
First, we note our earlier discussion in the section on standing regarding the law in Kansas that a promissory note and the mortgage securing it are, as a general rule, inseparable. Bank Western v. Henderson, 255 Kan. 343, 354, 874 P.2d 632 (1994); Middle kauff, 111 Kan. at 207. Generally, “ ‘the mortgage follows the note. A perfected claim to the note is equally perfected as to the mortgage/ ” Bank Western, 255 Kan. at 354 (quoting Army Nat'l Bank, 245 Kan. at 17). The assignment and delivery of a negotiable promissory note operates as an assignment of the mortgage given as security for payment of the note. Middlekauff, 111 Kan. at 209.
But even if the interests of the note holder become separated from the interests of the mortgage holder, we see no impediment to a foreclosure action if tírose interests are subsequently reunited before judgment. The approaches used by the courts in Ohio and Florida in CitiMortgage and JP Morgan Chase discussed earlier are logical, practical, and consistent with our law. Under Kansas law the mortgage follows the note. But any arguable severance of the note holder s interest from the mortgage holder’s interest should be able to be cured with the transfer of the mortgage to the Bank, even if that occurs after suit was filed so long as the transfer occurs before the Bank moves for summary judgment.
But the McConnells argue that it was MERS that made the assignment of the mortgage to die Bank, and because MERS served only as the morgagee’s “nominee” and as a “digital mortgage tracking service,” MERS had no rights in the mortgage which it could assign to the Bank. If this is true, then MERS’s holding die mortgage as a “nominee” while die lender continued to hold the promissory note did not result in a splitting of the interests. In In re Martinez, 444 B.R. 192 (Bankr. D. Kan 2011), die court determined that in this context the terms “nominee” and “agent” are interchangeable. The court concluded: “Because MERS was holding die Mortgage in question as an agent of Countrywide, the Court finds tiiat die Note and Mortgage were never split, and remain enforceable.” 444 B.R. at 206. See Landmark Nat'l Bank, 289 Kan. at 539, wherein our Supreme Court characterized MERS as a mere “straw man.”
As stated in Restatement (Third) of Property (Mortgages) § 5.4(c): “A mortgage may be enforced only by, or on behalf of, a person who is entitled to enforce the obligation the mortgage secures.” The Bank is the holder of the note. Steven acknowledges tiiat he signed the note and that he is in default. The McConnells acknowledge that they signed the mortgage securing the note. The Bank has sued to foreclose on the mortgage but is not seeking a personal judgment against Steven. The McConnells would have us declare the mortgage entirely unenforceable and thereby create an unwarranted windfall for them. A mortgage foreclosure is a proceeding in equity. Karnes Enterprises, Inc. v. Quan, 221 Kan. 596, 602, 561 P.2d 825 (1977). The McConnells’ position is inconsistent with principles of equity and contrary to the Restatements’ admonition against unwarranted windfalls. See Restatement § 5.4, Comment (e).
Homestead Rights
Finally, the McConnells argue that Janet signed only the mortgage but not the promissory note or the loan modification agreement; thus, she has not consented to the impairment of her homestead rights in the family residence.
K.S.A. 60-2301 provides:
“A homestead to the extent of 160 acres of farming land, or of one acre within tire limits of an incorporated town or city, or a manufactured home or mobile home, occupied as a residence by the owner or by the family of the owner, or by both die owner and family diereof, together with all the improvements on the same, shall be exempted from forced sale under any process of law, and shall not be alienated widiout die joint consent of husband and wife, when diat relation exists; but no property shall be exempt from sale for taxes, or for the payment of obligations contracted for the purchase of said premises, or for the erection of improvements thereon. The provisions of this section shall not apply to any process of law obtained by virtue of a lien given by the consent of both husband and wife, when that relation exists.” (Emphasis added.)
Janet signed the mortgage whereby the family residence became security for Steven’s loan. The homestead rights described in K.S.A. 60-2301 do not apply when both spouses have consented to a lien on the property. Janet clearly consented to the mortgage lien which the Bank now seeks to foreclose.
Based upon our examination of the record and the applicable law, the Bank has demonstrated that there exists no genuine issue of material fact and that it is entitled to a judgment of foreclosure as a matter of law. None of the arguments presented by the McConnells creates a disputed issue for trial. The district court correctly granted summary judgment in favor of the Bank.
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Greene, C.J.:
National Catastrophe Restoration, Inc. (NCRI) appeals from an order of the Kansas Court of Tax Appeals (COTA) affirming an assessment issued for unpaid retailers’ sales taxes due for the period May 1,2003, to December 31,2004. NCRI contends that COTA erred in presuming the assessment valid, in disregarding undisputed evidence that the sampling technique employed in the audit was flawed, and in rejecting three stipulations after the hearing was closed. NCRI also contends the assessment amounted to an unconstitutional assessment of sales taxes on out-of-state sales. We reject the constitutional challenge and affirm COTA’s affirmation of the assessment except to the extent that stipulations requiring adjustments to the error rate must be honored in part and reconsidered in part.
Factual and Procedural Background
NCRI is a retailer of goods and services sold to repair and restore Kansas and out-of-state property damaged by natural and man-made disasters. NCRI is based in Wichita and registered with the Kansas Department of Revenue (KDOR) as a retailer. NCRI’s Kansas sales and purchases are subject to tax assessment under the Kansas retailers’ sales tax act and the Kansas compensating use tax. The record reflects that NCRI filed sales tax returns from May 2003 to December 2004 certifying that no tax was owed.
In November 2004, KDOR initiated an audit of NCRI’s financial records for sales and use taxes for the period Januaiy 1, 2002, to December 31,2004. NCRI, through attorney Jerry Capps of Allen, Gibbs & Houlik (an accounting firm), responded to a pre-audit questionnaire; Capps was designated as NCRI’s representative for purposes of the audit. NCRI had no explanation for its failure to remit taxes. Prior to KDOR’s field audit work, however, NCRI voluntarily reviewed its books and records and admitted there were numerous untaxed or undertaxed transactions.
In Februaxy 2005, KDOR’s auditor met with Capps and another NCRI representative who provided the auditor with access to NCRI’s records. Because of the voluminous records provided, the auditor and NCRI agreed that using a sampling method would be the best process for an audit. Upon reviewing the records, the auditor determined that a 3-month block sample would work best. Capps advised the auditor that NCRI did not have seasonal variations, therefore any 3 months chosen would be representative of NCRFs business. The auditor then randomly chose the months of November 2002, May 2003, and February 2004 to serve as the sample months for the audit.
In March 2005, Capps executed a formal notice from KDOR that a sample audit would be performed to determine whether NCRI had remitted all sales taxes due on taxable Kansas sales transactions. The audit was to cover the period of January 1, 2002, through December 31, 2004. NCRI was notified of the sampling methodology that would entail a sample base and population of all NCRFs gross sales and all tax-free sales in the sample months. Based on dais population, the results were to be determined as follows:
“The total dollar value of the error revealed by the sample will be divided by the total dollar value of the sales in the three months transactions in the sample to obtain a percent of error. This percent of error will be multiplied by audited sales in each reporting period within the audit period that is not included in the sample to determine the additional amounts subject to sales tax. For the sample months, actual error amounts will be assessed.” (Emphasis added.)
NCRI never objected to the sampling methodology announced by KDOR during the audit procedure or at any time prior to the COTA hearing.
Between November 2004 and July 2006, KDOR performed tire sales tax audit. The business records provided by NCRI for the audit period were voluminous. NCRI admitted the business records were not complete because it did not have a good bookkeeping system. Job files contained reports in which sales figures did not match invoice amounts for the materials sold and worked performed. In some instances, sale proceeds received by NCRI were overreported and some were underreported to KDOR. NCRI treated some invoice amounts as estimates and later adjusted the figures. Moreover, sales report entries did not actually reflect the final amount of the invoice, and there was no documentation tracing adjustments made. In addition, NCRFs income statements compiled from sales reports did not match the income reported on income tax returns. Some of NCRFs job files and sales reports were missing, and its sales reports and cash receipts did not match.
In January 2007, KDOR sent notices of final assessment to NCRI reflecting assessments of $236,669 in retailers’ sales tax (plus interest and penalties) and $4,567 in compensating use tax (plus interest and penalties). NCRI requested an informal conference with KDOR regarding the assessments. The use tax portion of the assessments has not been disputed and is not before us in this appeal.
On October 31, 2007, after failing to receive a written determination from KDOR, NCRI filed an application for review of the final sales tax assessment with the Board of Tax Appeals (BOTA). NCRI asserted the assessment was invalid, because: (1) KDOR used November 2002—which was outside the statute of limitations—as one of the “sample” months for calculating the assessment; (2) KDOR did not credit sales taxes actually paid during the sample months; (3) KDOR did not hold a personal or telephone conference with NCRI; and (4) KDOR did not identify the KDOR employee, the employee’s identification number, and the employee’s contact phone number as required by statute.
BOTA successor COTA conducted pretrial hearings, entered a final pretrial order, and then conducted a final evidentiary hearing August 25, 2009. In a July 2011 order, COTA “reluctantly” granted NCRI’s request to amend the pretrial order to raise a new theory suggesting that out-of-state transactions had been taxed. COTA also found that it was NCRFs burden to rebut the presumption that the assessment and/or Sampling method was valid. COTA indicated that it was unclear whether NCRI’s sole witness, Sarah Guzman, was a. fact witness or an expert witness; in any event, COTA expressly found “there is no indication that she provided any specialized knowledge or expertise that could assist [COTA] in determining the validity and reliability of the sampling technique used in the subject audit.” Although Guzman based her testimony on review of the audit documents, COTA concluded she had “contrived her own method of determining [NCRI’s] sales tax liability” despite NCRI’s failure to introduce factual evidence to support an alternative method of assessment. COTA specifically found Guzman’s testimony lacldng “foundation and credibility.” Accordingly, COTA found that NCRI failed to rebut the presumption of validity of the assessment and held that a taxpayer could not rebut the presumption “merely by proffering, in the eleventh hour, a new hypothesis based on self-serving interpretations of its own inadequate business records.”
COTA also rejected NCRI’s constitutional challenges. COTA expressed uncertainty regarding whether NCRI was challenging KDOR’s authority to tax transactions involving materials inventoried in Kansas but sold to out-of-state customers or was asserting KDOR taxed out-of-state transactions. Both arguments were rejected. Finally, COTA found that three stipulations pertaining to a need to adjust tire error rate used to calculate the tax deficiency were ineffectual “because they were entered into based on mistaken assumptions and would result in unintended consequences.”
Both NCRI and KDOR filed timely petitions for reconsideration. NCRI argued that it was entitled to directed judgment, that any presumption of validity of the assessment was rebutted, that KDOR was obligated to abate any sales tax assessment taxing out-of-state sales, and COTA erred in ignoring tire parties’ stipulations. KDOR requested reconsideration of COTA’s decision to allow NCRI to amend the pretrial order at tire beginning of the hearing and requested clarification of the order to cite tire current version of an applicable regulation. On August 16, 2011, COTA issued an order amending the applicable citation and otherwise denying the motions for reconsideration.
NCRI filed a timely petition for judicial review with this court.
Did COTA Err in Failing to Rule on NCRI’s Motion for Directed Judgment and for Presuming KDOR’s Sales Tax Assessment Valid?
On appeal, NCRI first contends that COTA erred in denying its motion for directed judgment after KDOR presented the audit without witnesses and rested its case solely on doe audit documents. NCRI argues that COTA never ruled on its motion and then erred in its final order by presuming KDOR’s assessment valid when no such presumption is authorized by Kansas law. We conclude the arguments to be procedurally unusual and legally erroneous.
The Motion for Directed Judgment Was Procedurally Unusual and Need Not Have Been Ruled Upon Immediately
For reasons unclear from the record, the parties agreed that KDOR would proceed first with presentation of evidence to COTA, even though NCRI agreed that it bore the burden of proof as to the validity of the assessment. KDOR then proceeded to introduce its Exhibit 1, the notice of final assessment, complete with details of unreported sales/purchases subject to tax by jurisdiction, tax by issue, calculation of error rate for the sample months, and all auditors’ comments and logs. COTA admitted the exhibit, and then KDOR rested. NCRI’s motion for “directed judgment” followed.
We find NCRI’s motion to be procedurally unusual and legally erroneous for several reasons. First, given NCRI’s express admission that it bore the burden of proof “as to the validity of the assessment issue,” we do not understand how an “agreement” for KDOR to proceed out of order could justify a ruling for NCRI as a matter of law prior to evidence from the party with the burden of proof. See K.S.A. 60-250(a)(l) (motion for judgment as a matter of law not ripe until party has been fully heard on an issue). Second, on the record at the opening of COTA’s hearing, KDOR’s notice of final assessment was expressly stipulated to as admissible by NCRI. Third, the exhibit reflects “detail[s] of unreported sales/ purchases subject to Retailers’ Sales Tax for the period May 01, 2003 to December 31, 2004, inclusive.” Thus, to tire extent KDOR had any initial burden in the matter, the admission of the exhibit satisfied any such initial burden. Fourth, COTA was within its legal prerogative to postpone a ruling on the issue. See K.S.A. 60-250(b) (when motion is not granted, court is deemed to have submitted the action subject to a later determination of tire legal questions raised). Fifth, we do not find in the record any renewal of the motion at any time prior to the motion for reconsideration by NCRI, but COTA essentially ruled against the motion in its post-hearing order, where it held that KDOR was entitled to a presumption of validity. And finally, the principal evidentiary issue now argued by NCRI, specifically whether tire transactions in question were retail sales to a final user or consumer (citing incorrectly to K.A.R. 92-16-61a, but presumably intending K.A.R. 92-19-61a), was never preserved in COTA’s pretrial order and therefore not subject to adjudication. See K.S.A. 60-216(e) (implicitly controlling COTA procedure under K.A.R. 94-5-1 [2010 Supp.]); McCain Foods USA, Inc. v. Central Processors, Inc., 275 Kan. 1, Syl. ¶ 8, 61 P.3d 68 (2002) (issue not contained in pretrial order should not be considered).
For any of these reasons, and particularly in light of their cumulative effect, we conclude there was no error by COTA in failing to rule on NCRI’s motion for directed judgment prior to NCRI’s presentation of its case.
KDOR Was Entitled to a Presumption of Assessment Validity
NCRI contends that COTA erred in holding that KDOR’s assessment was entitled to a presumption of validity because there is no statutory basis for any such presumption. We disagree. COTA’s rationale and ruling on this issue were as follows:
“The Department’s sampling technique, as well as its assessment, are presumed valid, and it is Taxpayer’s burden to rebut those presumptions. See K.S.A. 79-3610 (placing burden of proof on Taxpayer to demonstrate invalidity of sampling method); see also K.A.R. 92-19-61 (placing burden on Taxpayer to prove the invalidity of the assessment).
“As noted above, a presumption of validity attaches to die Department’s audit assessment, and it is Taxpayer’s burden to rebut that presumption. The outcome of any fact-driven proceeding such as the instant case is determined by die ability of die party bearing the burden of proof to persuasively carry that burden. See In re Marriage of Grippin, 39 Kan. App. 2d 1029, 186 P.3d 852 (2008). ‘Burden of proof means preponderance of the evidence, that is, die greater weight of evidence, in view of all facts and circumstances of the case. Matter of Estate of Robinson, 236 Kan. 431, 690 P.2d 1383 (1984). The burden of proof on any point is upon tire party asserting it, and it is incumbent upon that party to prove its allegations by a preponderance of the evidence. [Citation omitted.]”
NCRI concedes that a KDOR income tax assessment is entitled to such a presumption, citing In re Tax Appeal of Broce Constr. Co., 27 Kan. App. 2d 967, 980, 9 P.3d 1281, rev. denied 270 Kan. 898 (2000), where the court held:
“Our Supreme Court has long held that ‘the tax found by the tax commission to be due is presumed to be valid [and] the taxpayer has the burden of showing its invalidity.’ Nutrena Mills, Inc. v. State Tax Comm., 150 Kan. 68, 75, 91 P.2d (1939) (citing United States v. Reitmeyer, 11 F.2d 648 [E.D. La. 1926]). Similarly, Crawford noted:
“ ‘The order of the [Department] carries with it a presumption of validity which continues until [the taxpayer] establishes that the method of allocation adopted is inherently arbitrary, or that its application to [the taxpayer] produces an unreasonable result .... The burden was upon [the taxpayer] to show . . . that the factor formula method ordered by tire [Department] to be applied, does not ‘clearly reflect’ a just and equitable allocation of net income to Kansas. 180 Kan. at 264.’ ”
NCRI argues that this clearly established presumption from the income tax context cannot be transported to sales and use tax context. We disagree. The auditing, assessment, and review process under K.S.A. 79-3610 specifically incorporates by reference the auditing, assessment, and review statute under the Kansas Income Tax Code. See K.S.A. 2011 Supp. 79-3226. Neither statute specifically states that the final determination of the Director of Taxation is entitled to a presumption of validity, but—as conceded by NCRI—Kansas has long recognized such a presumption. See Becker v. City of Wichita, 231 Kan. 322, 324-25, 644 P.2d 436 (1982) (presumption of validity which attaches to the determination of tire governing body regarding special assessments for sidewalks and public improvements); In re Burrell, 22 Kan. App. 2d 109, 112, 912 P.2d 187 (1996) (rebuttable presumption of validity attaches to KDOR’s determination Burrell owed drug stamp tax), rev. denied 260 Kan. 993.
Moreover, the Kansas Legislature has explicitly removed the presumption of validity as to some initial tax decisions. See K.S.A. 2011 Supp. 79-1609 (no presumption of validity of county appraiser’s determination of residential or commercial real estate val uations); K.S.A. 2011 Supp. 79-2005 (no presumption of validity for county appraisals of real estate in tax protests filed with COTA). Presumably, if the legislature had intended to remove the long-recognized presumptions regarding sales or income taxes, it simply could have used the same language used elsewhere.
Finally, other jurisdictions recognize the presumption of validity of an agency’s assessment of sales taxes. See, e.g., LZM, Inc. v. Virginia Dept. of Taxation, 269 Va. 105, 109, 606 S.E.2d 797 (2005) (applying presumption of validity to an assessment of sales tax and stating that “the burden is on the taxpayer to show that such assessment was the result of ‘manifest error’ or in ‘total disregard of controlling evidence’ ”); see also HKD Lo, Inc. v. Commissioner of Revenue, No. 8028 R, 2011 WL 1049196, at *4 (Minn. Tax Div. 2011) (unpublished opinion) (orders of Commissioner under Minnesota Sales and Use Tax presumed valid and correct).
Thus, we hold that KDOR’s sales tax assessment against NCRI, as reflected in the final notice of assessment, was entitled to a presumption of validity under K.S.A. 79-3610 and COTA neither erred in failing to immediately rule on NCRI’s motion for judgment nor in presuming the validity of the assessment.
Did COTA Err in Concluding NCRI Failed to Sustain its Burden to Rebut Presumption of Assessment Validity?
NCRI next argues on appeal that even if KDOR was entitled to a presumption of validity, that presumption was fully rebutted (1) by the KDOR auditor’s admission that the assessment does not represent actual tax liability; (2) because the sampling technique employed was flawed; and (3) because KDOR knowingly imposed sales tax on out-of-state transactions. We will examine each of these challenges, but we do so understanding that COTA made a negative finding that cannot be disturbed on appeal absent an arbitrary disregard of undisputed evidence or a showing of bias, passion, or prejudice. See Hall v. Dillon Companies, Inc., 286 Kan. 777, 781, 189 P.3d 580 (2008).
The approach utilized by KDOR in its audit was sampling; i.e., 3 months were selected from a 2-year period, and the error rate determined in those months was then spread over the entire pe riod. This approach is authorized by K.S.A. 79-3610, which provides:
“Any determination [of tax liability] may be made on the basis of a generally recognized valid and reliable sampling technique, whether or not the person being audited has complete records of transactions and whether or not such person consents. In any such case, the director shall notify the taxpayer in writing of the sampling technique to be utilized, including the design and population of such sample. If the taxpayer demonstrates that any such technique use was not in accordance with generally recognized sampling techniques, the portion of the audit shall be dismissed with respect to that portion of the audit based upon such technique, and a new audit shall be performed. Within 60 days after the mailing of notice of the director’s determination any taxpayer may request an informal conference ... relating to the taxpayer’s tax liability, including the issue of whether the use of a generally recognized sampling technique achieved a result that was reflective of die taxpayer’s actual tax liability.” (Emphasis added.)
COTA concluded that NCRI failed to sustain its burden to show the invalidity of the assessment, reasoning as follows:
“Based upon the evidence presented, we find Taxpayer has failed to rebut die presumption of validity in favor of the Department. It is not enough for a taxpayer to merely raise concerns about possible flaws in the audit or to cast aspersions, without providing any countervailing proof, on the factual basis of certain aspects of the Department’s analysis. Cf. Lewis v. City of South Hutchinson, 162 Kan. 104, 174 P.2d 51 (1946) (holding presumption favoring official actions of public agents cannot be rebutted by suspicion, surmise, insinuation, and innuendo). A taxpayer also cannot rebut the presumption merely by proffering, in the elevendi hour, a new hypothesis based on self-serving interpretations of its own inadequate business records.
“In order to rebut the presumption of validity, it is incumbent upon a taxpayer to show either that'the sampling technique used by the Department was invalid or that certain factual assumptions upon which the audit assessment was predicated were materially incorrect. The presumption of validity is overcome not by conjecture but by substantial competent evidence, such as business records and fact testimony, which proves both die manner and extent of the alleged assessment error.”
We agree with COTA. When sampling is the basis for a sales tax assessment, it is incumbent upon tire taxpayer to show that die technique was not in accordance with generally recognized sampling techniques. Perhaps because COTA found NCRI’s singular witness to lack foundation and credibility, no such challenge has been mounted on appeal. Instead, NCRI challenges the assess ment on appeal with purported undisputed evidence consisting principally of hearing testimony by KDOR’s auditor witness.
KDOR’s Admission of. “No Actual Tax Liability” Is Taken Out of Context
NCRI initially suggests that the KDOR auditor admitted in the auditor log that she agreed “failure to give credit [for belated payments in sample months] doesn’t represent the actual tax liability per K.S.A. 79-3610.” This so-called admission does not impeach the sampling procedure or the error rate employed, but it is a disingenuous attempt to gain advantage through distortion of the sample and the resulting discussion with the auditor.
The events that gave rise to the discussion were NCRI’s attempt to file supplemental returns and make payments of tax in the months already selected by KDOR for sampling. NCRI argued to the auditor that such payments should be accepted and credited to the sample months, thus reducing the error rate within the sample. Of course, KDOR refused to accept and credit these payments as requested because this would skew the sample. Instead, KDOR agreed to accept the payments and apply them to the overall tax liability that would be determined from completion of the audit. When NCRI’s representative Capps learned of this, he argued that refusal to credit the payments within the sample months would result in a distortion of “the actual tax liability” in the sample months as required by K.S.A. 79-3610. The auditor’s log states that the auditor “agreed” but that due credit would be given for the tax paid.
First and foremost, we agree with KDOR that belated tax payments need not be credited to months that have been selected for sampling because this would distort the error rate. The auditor’s log reflects the balance of the discussion and KDOR’s rationale for its credit procedure:
“Jeny C. called and talked to me about the audit.... We discussed the documents that he had given me that had changed the sample months. He said he gave credit for the invoices that they had remitted tax on. I told him that the sample was set up to determine the total tax due and then we gave credit for every dollar paid in. He said that this way would not be correct because we are projecting every dollar in the sample month to the other periods and the amount paid is only good for the one month. He said he had given Christina the sheet that determines which invoices they had remitted tax on in 2005. He emailed me the sheet and I told him I would review it and see what it looks like.
“I reviewed the file. It appears that around 75% of the invoices listed and paid on were from the sample month. The additional returns were filed a month after tire 3 month sample selection was made. It appeal's that NCRI tried to pay tax on the sample months to lower the projections. Jerry had told me that they should have credit for the tax paid in the sample months. It appears Aat Aey are trying to cheat the system. I talked to Jim about Ais and he agreed not to accept any of Ae tax paid on Ae projections and give them credit after the projections on Ae tax paid.”
We agree with KDOR. Attempting to reduce tax due within the sample months selected after the audit had begun would distort the error rate, invalidate the conclusions, and “cheat the system.” And the ensuing conversation between the auditor and Capps now relied on by NCRI to show some admission against KDOR’s interest is taken wholly out of context and is of no legal significance to the validity of the resulting assessment.
The Sampling Technique Was Not Flawed
Next, NCRI suggests that KDOR’s auditor witness “impeached the validity of its calculated error rate.” Testimony cited by NCRI to support this impeachment is from a portion of the auditor’s direct testimony intended to demonstrate the error inherent in NCRI’s contention that out-of-state transactions should be deducted from the general population before application of the error rate. The testimony was as follows:
“Q. [KDOR Attorney:] Okay. Now, Ae Taxpayer—assume Ae Taxpayer says our audit error rate is correct. Okay?
“A. [KDOR Auditor:] Okay.
“Q. And Aen assume that Ae Taxpayer wants to use that error rate and multiply Aat error rate times all of Ae transactions in the non-sample months. Okay?
“A. Mm-hmm.
“Q. Do you understand me so far?
“A. Got you.
“Q. Okay. Rut assume before it multiplies the error rate against all Aose transactions, it wants to throw out of the general population [out-of-state] transactions. Do you understand Ae—■
“A. Yes.
“Q. —assumption? Do you?
“A. Yes, I do.
“Q. Okay. If the error rate is not changed, does the quotient—does the result of the multiplication of the population that’s left in the assessment period months accurately reflect die tax owed by die Taxpayer?
“A. No.
“Q. And why is that? If you change one set of circumstances, do you not have to change die other? If you change the population—
“CHIEF JUDGE CROTTY: Let her answer.
“Q. (Ry Ms. Rawlings)—do you have to change die error rate?
“A. You’d have to do the same tiling in die same as what you’re projecting. So if you removed the non-taxable from the population,... [out-of-state] sales from the population, you would also have to do that for the tiiree sample montiis.
“Q. And if you removed the [out-of-state] transactions from die tiiree sample montiis, die error rate would have actually been higher. Correct?
“A. Correct.”
This testimony does not impeach KDOR’s error rate or sampling technique. The testimony merely serves to show that so long as out-of-state transactions are not indicated as taxable within tire sample montiis, the error rate so derived must be applied to a general population where the out-of-state transactions are not removed. In fact, the testimony would indicate that if out-of-state transactions are removed from the general population, the error rate would have to be similarly adjusted, and this adjustment would tend to drive the rate higher rather than lower.
Of particular note is that NCRI’s counsel objected to the testimony of KDOR’s auditor on the calculation of the error rate because “we specifically stipulated that the error rate was true and correct.” Thus, it appears NCRI merely objected to the application of an undisputed error rate to an adjusted general population. Again, this would be “cheating the system.” Having examined the cited testimony thoroughly, we reject NCRI’s contention that it impeaches the sampling technique. -
KDOR Did Not Intentionally Impose Sales Tax on Out-of-State Transactions
Finally, NCRI argues that the KDOR auditor’s testimony demonstrates that tax was intentionally imposed on out-of-state trans actions. We conclude that tax may have been imposed on some out-of-state transactions as an inherent outcome of the sampling approach to tax liability, but that consequence does not invalidate an assessment based on the statutory approach allowed under K.S.A. 79-3610.
KDOR’s auditor witness clarified precisely how out-of-state transactions were treated during the audit in her testimony on redirect. We find the following testimony revealing as to the approach and its treatment of out-of-state transactions:
“Q. And you agree that we don’t tax [out-of-state] transactions. Correct?
“A. Correct.
“Q. We do not directly tax [out-of-state] transactions.
“A. Correct.
“Q. But when you’re doing a sample, the whole purpose of the sample is you’re not going to go over every transaction during tire entire audit assessment period. Correct?
“A. Correct.
“Q. Okay. Now in those records it was clear that some were out-of-state transactions. Correct?
“A. You could assume they were, yes.
“Q. Okay. And you—and we—the audit department made that assumption—
“A. Right.
“Q. —if you could, from the document. Correct?
“A. Correct.
"Q. Those were never designated as taxable transactions. Correct?
“A. Correct.
“Q. They were simply used in the entire sample period to set up how many dollars were in those sample months resulting from sales, whether they be in Kansas or out of Kansas. Correct?
“A. Correct.
“Q. Now, you have to decide how many dollars are in all the sales transactions during tiróse months which should have been taxed but weren’t. Correct?
“A. Correct.
“Q. And those dollars go into the numerator. Correct?
“A. Correct.
“Q. Okay. You didn’t identify any of the . . . out-of-state sales transactions as being tax errors that were included in the numerator. Correct?
“A. Except for that one we discussed.
“Q. Except for tire one. And I appreciate your—your paying attention to the question and the details. Okay. So you divide the denominator—all the sales during the sample months, regardless of whether they’re taxable or not, they all go in there—and you divide that number into the numerator— which are just tax errors, and there’s no [out-of-state] transactions that were designated as tax errors. Correct?
“A. Correct.
“Q. And so you get a number, a percentage?
“A. Correct.
“Q. Then you go back to die whole audit period, and you say, Tm going to multiply all the transactions in this audit period by tills tax error rate and determine what the assessment should be.’
“A. Correct.”
Thus, we perceive NCRI’s position on appeal to be a challenge not to specific errors made in employing a valid sampling technique, but rather a facial challenge to sampling as an approach to die auditing. Sampling itself is not intended to result in precise identification of sales tax liability on each and every transaction within the audit period, but rather to calculate a precise error rate for a small period of time and then apply that rate to the entire period of tire audit. The statutory goal is to “achieve a result that is reflective of the taxpayer’s actual tax liability.” (Emphasis added). K.S.A. 79-3610. Unless we decide that sampling as authorized by this statute is unconstitutional, there has been no showing that KDOR’s audit of NCRI was in any way violative of the statutoiy methodology. This is especially confirmed by the complete absence of any competent evidence that the methodology utilized here resulted in any specific and calculable inclusion of out-of-state transactions. We recognize that NCRI attempted to establish this fact, but its singular witness was deemed to lack foundation and credibility by COTA, and we are bound to consider this finding of veracity in our review of record as a whole. See K.S.A. 2011 Supp. 77-621(d).
For these reasons, we reject NCRI’s challenge to tire methodology employed by KDOR, and we deem any inclusion of out-of-state transactions to be unproven; but if any were incidentally taxed, this was an inherent potential result of employing the statutory sampling approach of auditing sales tax returns under K.S.A. 79-3610.
In summary, we conclude that NCRI has not demonstrated that COTA arbitrarily disregarded undisputed evidence or manifested bias, passion, or prejudice. Thus, COTA must be affirmed in its conclusion that NCRI failed to sustain its burden to rebut the presumption of assessment validity.
K.S.A. 79-3610 Is Not Unconstitutional as Applied in KDOR’s Audit
NCRI next argues that “the Commerce Clause and the Due Process Clause forbid Kansas from imposing its sales tax on out of state transactions.” KDOR failed to brief this issue on appeal. A statute is presumed constitutional and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court has the authority and the duty to do so. Rural Water District No. 2 v. City of Louisburg, 288 Kan. 811, 817, 207 P.3d 1055 (2009).
NCRI correctly observes that COTA has no authority to decide constitutional questions. See Zarda v. State, 250 Kan. 364, Syl. ¶3, 826 P.2d 1365, cert. denied 504 U.S. 973 (1992). COTA did, however, weigh in on these questions, stating:
“It is unclear whether Taxpayer now objects to the Department’s authority to tax transactions involving inventoried material sold to out-of-state customers pursuant to K.A.R. 92-19-66(d), or whether it contends that in this case the Department improperly taxed certain out-of-state transactions not covered by K.A.R. 92-19-66(d). Neither argument is availing. If the argument is tire former, we decline to pass on the issue because the issue was neither included in the pre-hearing order nor addressed at tire hearing. If tire argument is the latter, we find insufficient evidence to establish that the Department’s audit approach resulted in tire taxation of non-taxable transactions.”
In the absence of a record establishing that out-of-state transactions were indeed taxed (and both COTA and this court have concluded otherwise), there is an insufficient factual predicate for us to address the constitutional issue. The rule that a constitutional issue cannot be decided by an administrative agency does not preclude making a factual record adequate for the reviewing court to apply constitutional principles. Obviously, this court is not equipped to be a fact-finder; thus, constitutional issues must be raised at the administrative agency and factual predicates for constitutional questions must be established in that forum. See Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 633-34, 176 P.3d 938 (2008); see also Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 773-74, 148 P.3d 538 (2006) (failure to raise the constitutional issue at the administrative proceeding fatal to jurisdiction of reviewing court on that issue); In re Tax Appeal of City of Wichita, 274 Kan. 915, 920, 59 P.3d 336 (2002) (factual predicate for equal protection claim made at BOTA but addressed on review). This rule is consistent with K.S.A. 2011 Supp. 77-618 and K.S.A. 77-619, which require that judicial review of disputed issues of fact shall be confined to the agency record except in certain limited situations.
Here, we agree with COTA in its conclusion that NCRI has not precisely articulated its constitutional challenge. We note at the outset that KDOR’s regulations allow for the taxation on the retail sale of materials from inventory even though the material may be used in a construction project outside of Kansas. K.A.R. 92-19-66(d) provides in material part:
“[B]ulk purchases of all mateiial by persons who are contractors only, and all material removed from inventoiy by a retailer to perform a construction project shall be subject to sales tax at the time of purchase or at the time the material is removed from inventoiy, even though the material may be used in a construction project outside of Kansas. No deduction, exclusion, refund or credit for sales tax shall be allowed when a contractor purchases material in Kansas, or when a retailer who is also a contractor removes material from inventory as a sale in interstate commerce, even though the material may be used in a construction project outside of Kansas.”
It does not appear that NCRI has mounted a facial constitutional challenge to this regulation, nor does the record on appeal indicate whether the auditor applied this regulation to the determination of taxable sales in the sample months. Moreover, our search of the record does not establish any details of a typical sales transaction by NCRI; e.g., we do not know if the projects were originated within Kansas, we do not know if the projects were serviced by trucks or equipment from Kansas, and we do not know if the projects were performed using materials or labor from Kansas.
Thus, we are unable to determine the precise nexus with Kansas for a Due Process or Commerce Clause analysis. See In re Tax Appeal of Family of Eagles, LTD, 275 Kan. 479, 485-86, 66 P.3d 858 (2003). Finally, as we have already noted, NCRI has not es tablished with competent evidence that the sampling technique employed for the audit resulted in any specific taxation of one or more out-of-state transactions and, if so, whether that transaction was bifurcated in accordance with K.A.R. 92-19-66(d) so as to tax only materials from Kansas inventoiy. In the absence of clarity of the challenge and factual predicate, we are unable to apply traditional Due Process or Commerce Clause analyses. See Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279, 97 S. Ct. 1076, 51 L. Ed. 2d 326 (1977).
At best, it would appear that NCRI complains on appeal that the sampling technique employed in the audit under K.S.A. 79-3610 may have resulted in the taxation of some aspect of transactions that were performed outside the state. Yet, the only witness who testified to this was deemed by COTA to lack foundation and credibility, and our review of her testimony still leaves us without the clarity or factual predicate to perform any constitutional analysis. Perhaps—at best—the argument is that a sampling technique lacks precision to guarantee that Kansas has not overstepped its constitutional bounds in assessing sales tax to an entity that has performed some of its work outside the state. In constitutional terms, we consider this an apportionment issue.
We find litde guidance for an analysis of this sort. There does not appear to be helpful caselaw from our appellate courts or others across the nation that assess proper apportionment of state sales taxation when sampling techniques have been utilized to determine tax liability for an entity having some out-of-state transactions. We examine cases from the property tax context for some determining principles.
For example, our Supreme Court has acknowledged the unit valuation methodology and apportionment to Kansas using original cost as meeting the requirements set forth by tire United States Supreme Court in Commonwealth Edison Co., v. Montana, 453 U.S. 609, 101 S. Ct. 2946, 69 L. Ed. 2d 884 (1981). See In re Tax Appeal of ANR Pipeline Co., 254 Kan. 534, 547, 866 P.2d 1060 (1994) (The court indicated diat the unit valuation methodology, and apportionment to Kansas according to original cost results in a pipeline company’s property being assessed in Kansas in proportion to the pipeline’s presence in Kansas.).
In Norfolk & W. R. Co. v. Tax Comm'n, 390 U.S. 317, 88 S. Ct. 995, 19 L. Ed. 2d 1201 (1968), the United States Supreme Court considered Due Process and Commerce Clause challenges to state taxation of an interstate enterprise. The Court recognized that States could tax the fair share of an interstate transportation enterprise which is permanently or habitually employed in the taxing State, “including a portion of the intangible, or ‘going-concern,’ value of the enterprise.” 390 U.S. at 323-24. Norfolk recognized that the process of evaluating the going-concern value is “an elusive concept not susceptible of exact measurement.” 390 U.S. at 324.
“As a consequence, the States have been permitted considerable latitude in devising formulas to measure the value of tangible property located within their borders. [Citation omitted.] Such formulas usually involve a determination of the percentage of the taxpayer’s tangible assets situated in the taxing State and the application of this percentage to a figure representing the total going-concern value of the enterprise. [Citations omitted.]” 390 U.S. at 324.
Moreover, we also find persuasive decisions from other states that have concluded state sales tax auditors properly resorted to alternative auditing methodology on the ground of inadequate record keeping when the taxpayer was able to provide only limited documentation. For example, in Matter of Licata v. Chu, 64 N.Y.2d 873, 874, 487 N.Y.S.2d 552, 476 N.E.2d 997 (1985), the New York Court of Appeals concluded that the “auditor’s use of a test period and markup audit to estimate the tax due from [taxpayers] was neither arbitrary nor without rational basis” when the “[taxpayers’] sales tax records have as their source cash register tapes which show only total sales and sales tax collected by categories” since the “auditor could not determine from the tapes available whether tax had been charged on all taxable items and whether the proper tax had been charged in each instance.” See also McDonald’s v. Kosydar, 43 Ohio St. 2d 5, 8, 330 N.E.2d 699 (1975) (A “‘test-check method’ ” is acceptable where “no delineation showing what items were considered taxable or nontaxable, and no indication of which sales were for consumption on the premises as opposed to consumption off the premises.”).
Here, it was NCRI’s inability to produce reliable records that forced KDOR to employ this audit methodology, and any complaints have to be viewed in that context. See Matter of Center Moriches Monument Company v. Commissioner of Taxation & Finance, 211 App. Div. 2d 947, 948, 621 N.Y.S.2d 720 (1995). Simply because “ 1 “a different audit methodology might provide a more precise estimate of tax liability” ’ does not mean that the method used was unreasonable.” Matter of Rodriguez v. Tax Appeals Tribunal of State, 82 App. Div. 3d 1302, 1306, 918 N.Y.S.2d 625 (2011).
We deduce from all these cases a general rule that for purposes of compliance with Due Process and Commerce Clause dictates, apportionment of state sales tax liability auditing technique of an entity conducting business both within and outside a state can be achieved by a sampling if reasonably designed after consultation widr the taxpayer to determine tax deficiency within the best judgment and information available to the taxing authority.
Similarly, K.S.A. 79-3610 is a reasonable approach to measuring sales tax liability when a portion of the sáles occur beyond the state. Particularly where a taxpayer has failed to carefully document its business transactions, a sampling technique such as that contemplated by our statute is a necessary remedy. To require precise measurement and exclusion of each out-of-state transaction would benefit the taxpayer’s poor record-keeping. After the taxpayer has been given notice of the sampling technique to be employed, consulted about selection of the sample, and then' silent during a long and complicated audit, we have little sympathy for a belated constitutional challenge.
For all these reasons, we reject NCRI’s constitutional, challenge to K.S.A. 79-3610 as applied here.
Did COTA Err by Refusing to Honor Stipulations of the Parties?
Finally, NCRI challenges the portion of COTA’s order in which it found three stipulations made by the parties during hearing to be ineffectual because they were “entered into based on mistaken assumptions and would result in unintended consequences.”
All three of these stipulations were initiated and announced during the evidentiary hearing. The most significant, Stipulation No. 1, was introduced by KDOR as follows:
“MS. RAWLINGS: . . . [W]e have agreed that the Department will remove from the assessment documents for the month of February 2004,
“MS. RAWLINGS: And we are removing from the assessment the Hilton Week 1 and Hilton Week 2—
“CHIEF JUDGE CROTTY: Okay.
“MS. RAWLINGS: —as part of the error rate.
“MR. CAPPS: Correct.
“MS. RAWLINGS: And we will calculate-what the new error rate is and what the new tax would be prior to the close of this case. So we are stipulating that those two entries are actually already contained . . . under an entry identified as Hilton Garden Inn. So it’s a duplicate.”
But in KDOR’s posthearing prepared findings -and conclusions, it argued that the stipulation was a mistake and sought to be relieved of it, finding that—although the invoice was a duplicate—-it had already been disregarded in calculating the error rate.
With respect to Stipulation No. 1, NCRI relies on In re Tax Application of Emporia Motors, Inc., 30 Kan. App. 2d 621, 44 P.3d 1280, rev. denied 274 Kan. 1112 (2002). This case involved ad valorem tax exemptions sought by the taxpayers and for which the three counties involved agreed the exemption should be granted and that no hearing was needed. The taxpayers participated in the BOTA hearing “in a rather perfunctory manner” and assumed “the matter was essentially settled.” Emporia Motors, 30 Kan. App. 2d at 622. BOTA, however, found the taxpayers had failed to prove they were entitled to the tax exemptions claimed. Needlessly surprised, the taxpayers asked BOTA for another opportunity to appear and document their entitlement to the exemption. BOTA denied the application. A panel of this court reversed BOTA’s order, concluding that it was arbitrary and capricious under the circumstances, reasoning:
“We are not saying that BOTA must accept every stipulation submitted to it by the parties to BOTA proceedings. However, when BOTA fails to question the adequacy of the documentation submitted or to give the parties any notice that it is electing to reject their stipulations, this, in our opinion, denies due process. Where a party has been led to believe that it need not provide exhaustive evidence because everyone agrees it is entitled to the relief requested, BOTA must notify the parties should it decide to reject the stipulations of the parties and conduct a full and complete hearing on the application.” Emporia Motors, 30 Kan. App. 2d at 624-25.
See In re Tax Exempt Application of World Impact, No. 93,781, 2005 WL 3434015, at * 5-7 (Kan. App. 2005) (unpublished opinion).
Therefore, applying the rationale of this court’s opinion in Em-poria Motors, we conclude COTA’s rejection of Stipulation No. 1 must be set aside and the matter remanded for a full hearing before COTA to address the circumstances surrounding the disputed invoice, whether there was a mutual mistake in offering and agreeing to the stipulation, and other factors deemed by COTA to be in the interests of justice. See Connelly v. State, 271 Kan. 944, 963, 26 P.3d 1246 (2001), cert. denied 534 U.S. 1081 (2002). Ultimately, COTA must oversee recalculation of tax deficiency based on the stipulations that are not rejected.
Stipulation Nos. 2 and 3 were less significant, but they also addressed errors by KDOR in calculating the error rate in the sample months. Neither party sought to be relieved of these stipulations, however, and there is absolutely no record to support that they were “based on mistaken assumptions and would result in unintended consequences.” We must conclude that COTA’s rejection of Stipulation Nos. 2 and 3 was arbitrary and capricious and must be set aside. See Zinke & Trumbo, Ltd. v. Kansas Corporation Comm'n, 242 Kan. 470, 474-75, 749 P.2d 21 (1988) (action is ar-bitraiy and capricious if unreasonable, without foundation in fact, not supported by substantial evidence, or without adequate determining principles).
In summary, we hold KDOR was entitled to a presumption of validity of its assessment based on K.S.A. 79-3610. NCRI failed to sustain its burden to rebut this presumption of validity. NCRI’s challenge to the constitutionality of K.S.A. 79-3610 is rejected. Finally, COTA’s rejection of Stipulation No. 1 is reversed and vacated, its rejection of Stipulation Nos. 2 and 3 is reversed, and the matter is remanded for further proceedings not inconsistent with this opinion.
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|
Arnold-Burger, J.:
J.M. wants to adopt his former stepdaughter, I.M. I.M. has always considered J.M. her father. I.M/s mother agrees that the adoption would be in I.M/s best interest, but does not want to give up her own parental rights to I.M. The sole issue in this case is whether Kansas law allows such an adoption. Because we find Kansas law does not allow adoptions by former stepparents without a relinquishment of parental rights by the natural parents, we affirm the district court’s dismissal of J.M/s action.
Factual and Procedural History
Mother and E.B. are I.M/s natural parents. They were never married. Mother has always had sole custody of I.M. When I.M. was a toddler, Mother and J.M. married. They had one biological child together. Three years later they divorced. I.M. participated in parenting time with J.M. just as J.M/s own biological child participated, although custody and visitation of I.M. does not appear to have been part of the divorce decree. Mother has since remarried. I.M. considers J.M. to be her father and she calls him her father.
Three years after the divorce, J.M. filed a petition for the adoption of I.M. The petition indicated that J.M. was I.M.’s former stepparent. In addition, the petition stated that Mother consented to J.M.’s adoption of I.M., so long as Mother retained her parental rights to I.M. The petition also set forth that consent from E.B. was unnecessary because he was an unfit parent who made no effort to support or communicate with I.M. before or after her birth.
The district court dismissed the petition because of the lack of statutory authority to grant this particular type of adoption. In essence, the district court believed that because J.M. was a single person attempting to adopt I.M., the Kansas statutory scheme requires that Mother s parental rights must be terminated if the adoption were to be granted. Although E.B. appeared at the hearing, his position on the adoption does not appear in the record on appeal.
Analysis
J.M. contends that the district court’s dismissal of his petition to adopt I.M. for failure to state a claim was erroneous. J.M. asserts that he has constitutionally protected parental rights regarding I.M. because he was acting as her father in loco parentis.
We begin by noting that adoption is not a right, it is a statutory privilege. See Lofton v. Secretary of Dept. of Children & Family, 358 F.3d 804, 809, 812 (11th Cir. 2004) (acknowledging that since “there is no fundamental right to adopt or to be adopted, it follows that there can be no fundamental right to apply for adoption”); Mullins v. State of Or., 57 F.3d 789, 794 (9th Cir. 1995) (“whatever claim a prospective adoptive parent may have to a child, we are certain that it does not rise to the level of a fundamental liberty interest”); Lindley for Lindley v. Sullivan, 889 F.2d 124, 131 (7th Cir. 1989) (“Because the adoption process is entirely conditioned upon the combination of so many variables, we are constrained to conclude that there is no fundamental right to adopt.”).
This court has likewise held that because adoption is not recognized under common law, it is wholly a creature of statute. In re Application to Adopt H.B.S.C., 28 Kan. App. 2d 191, 196, 12 P.3d 916 (2000). Accordingly, we must determine if Kansas statutes, specifically the Kansas Adoption and Relinquishment Act, K.S.A. 59-2111 et seq., allow J.M. to adopt I.M., while still allowing Mother to retain her parental rights. Interpretation of a statute is a question of law over which our review is unlimited. Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009).
The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607, 214 P.3d 676 (2009). An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. Padron v. Lopez, 289 Kan. 1089, 1097, 220 P.3d 345 (2009). When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. Where there is no ambiguity, the court need not resort to statutory construction. Only if the statute’s language or text is unclear or ambiguous does die court use canons of construction or legislative history to construe the legislature’s intent. Double M Constr. v. Kansas Corporation Comm’n, 288 Kan. 268, 271-72, 202 P.3d 7 (2009).
So we begin by reviewing the statutes governing adoption as they apply in this case.
Any adult may adopt any minor or adult as his or her child in the manner provided in the Kansas Adoption and Relinquishment Act (the Act). K.S.A. 59-2113. There are four types of adoptions listed in the Act, adult adoption, agency adoption, stepparent adoption, and independent adoption. K.S.A. 59-2112(a)-(d). I.M. is a minor, her custody has not been relinquished to any agency that would be required to consent to her adoption, and J.M. is no longer I.M.’s stepparent, so we must treat this as an independent adoption under the statute. The Act goes on to provide that “[u]pon adoption, all the rights of birth parents to the adopted person, including their right to inherit from or through the person, shall cease, except the rights of a birth parent who is the spouse of the adopting parent.” K.S.A. 59-2118(b). Accordingly, in Kansas, if an unmarried individual wishes to adopt a child, the birth parents of the child are required to relinquish all parental rights to the child. There is no exception to this requirement contained within the Act. J.M. could certainly proceed with an application for the adoption of I.M., but if successful, Mother and E.B. will lose their parental rights to I.M.
J.M. suggests several paths this court should take to avoid this result.
First, he asserts that he has acquired parental rights over I.M. by acting in loco parentis and, accordingly, he can consent to her adoption. He relies heavily on Anderson v. Anderson, 191 Kan. 76, 379 P.2d 348 (1963), and its predecessor, State v. Taylor, 125 Kan. 594, 264 P. 1069 (1928), for this proposition, so we will review tiróse cases.
In both Anderson and Taylor, the former stepmother was given custody of the children after divorcing the biological father. Both fathers were found to be unfit. In each case the father challenged the court’s authority to award custody of his child to his former spouse when she was neither the biological mother nor the adoptive mother. Both fathers relied on the language of the statute, which provided drat upon granting a divorce, the court was required to make provisions for the minor children of the marriage. The fathers contended that their sole biological children were not children of the marriage. In both cases the Kansas Supreme Court held that the children were included in the meaning of “minor children of tire marriage” as contained in the statute. Anderson, 191 Kan. at 79; Taylor, 125 Kan. at 596. Moreover, the court relied on the fact that courts have broad jurisdiction to protect infants, with the overriding and controlling consideration regarding their custody being the best interest of the child. 125 Kan. at 596. Because the fathers were unfit, having abandoned their wives and children, and tire stepmothers had been acting in loco parentis to the children; the court found that the best interest of the children dictated they remain in the custody of their respective stepmothers.
But both Taylor and Anderson exclusively discuss custody determinations and make no mention of adoption. Custody and adoption are entirely different species, governed by different statutory provisions, and cannot be equated as J.M. desires this court to do. See Wilcox v. Fisher, 163 Kan. 74, 79, 180 P.2d 283 (1947). Whether J.M. stands in loco parentis to I.M., based on his voluntary assumption of a parental role in her life, is irrelevant in the case of an independent adoption when both parents are alive and have not had their parental rights terminated. See K.S.A. 59-2129(a). Moreover, the Act specifically defines a person in loco parentis for purposes of adoption as an “individual or organization vested with the right to consent to the adoption of a child pursuant to relinquishment or an order or judgment by a district court of competent jurisdiction.” (Emphasis added.) K.S.A. 59-2112(g). No one has relinquished any rights to I.M., nor has there been any court order or judgment concerning her availability for adoption. J.M. does not qualify under tire statute as a person in loco parentis. He has no statutory authority to consent to his own adoption of I.M.
Next, J.M. asserts that he is I.M.’s common-law guardian and as such he has a constitutionally protected liberty interest in her adoption. But under the common law, guardianship of a child was vested in tire father and in the event of his death in the mother, and in the event of the death of both parents in the next of kin. Paronto v. Armstrong, 161 Kan. 720, 725, 171 P.2d 299 (1946). This was later codified at K.S.A. 59-3051(l), defining a “natural guardian” for a minor as the minor’s biological parents, if the parental rights have not been terminated. See K.S.A. 59-3053. J.M. is not I.M.’s biological parent, and even if E.B.’s parental rights were terminated, Mother remains her sole natural guardian. So this argument also fails.
Finally, J.M. asserts that by expanding the common definitions of parent, spouse, and stepparent, we could interpret this action to be the equivalent of a stepparent adoption. But we must give common words their common meaning. The statute defines a stepparent adoption as “the adoption of a minor child by the spouse of a parent with the consent of that parent.” (Emphasis added.) K.S.A. 59-2112(d). It is undisputed that I.M. has two parents, a mother and a father, Mother and E.B. A stepparent is the spouse of one’s mother or father by a later marriage. Black’s Law Dictionary 1223 (9th ed. 2009). Mother and J.M. are no longer married and have not been for several years. In fact, Mother is married to someone else. Because J.M. is no longer Mother’s spouse, he is no longer I.M.’s stepfather. We note that some states do specifically allow former stepparent adoptions under the same terms as current stepparent adoptions, but they do so by specific statutory language. Cf. Tex. Fam. Code Ann. § 162.001(b)(4) (Vernon 2008). We are not in a position to add words and meaning to a statute that is clear and unambiguous.
We are aware that several courts around the country have recognized what has been called a “second-parent” adoption. A second-parent adoption is when an unmarried partner is permitted to adopt the biological or legal child of the parent without requiring the parent to relinquish any parental rights, so long as the parent consents to the adoption. Cottor, Current Trends in Second-Parent Adoptions, 17 No. 9 Divorce Litig. 141 (September 2005). Generally, unlike here, these adoptions involve persons in a committed relationship at the time of the adoption. Courts that have recognized second-parent adoptions either do so by specific statutory authority or by broad judicial interpretation of existing statutes. Cf. Vt. Stat. Ann. tit. 15A, § 1-102(b) (2010); Cal. Fam. Code § 9000(b) (West 2004); Con. Gen. Stat. § 45a-724(a)(3) (2004); In re M.M.D., 662 A.2d 837, 860 (D.C. 1995); Adoption of Two Children by H.N.R., 285 N.J. Super. 1, 8-9, 666 A.2d 535 (1995).
Again, lacking any clear statutory authority in Kansas to allow J.M. to adopt I.M. while allowing Mother to retain her parental rights, we are not inclined to judicially create such authority. We agree with our sister states that have strictly interpreted similar statutory language to require the relinquishment of all parental rights of the biological parents, except in the case of a traditional stepparent adoption. Cf. S.J.L.S. v. T.L.S., 265 S.W.3d 804, 828 (Ky. App. 2008); In re Adoption of Luke, 263 Neb. 365, 371, 640 N.W.2d 374 (2002); Boseman v. Jarrell, 364 N.C. 537, 545, 704 S.E.2d 494 (2010).
Accordingly, we find that Kansas adoption laws do not allow a former stepparent to adopt a former stepchild while also allowing the biological parents to retain parental rights over the child. If such an adoption is to be allowed in the future it will have to be by legislative enactment. Therefore, the district court did not err when it dismissed J.M.’s petition to adopt I.M. for failure to state a claim.
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Leben, J.:
Paul H. Parker Jr. appeals his convictions for rape and other charges because he says the district court should have moved his trial from Salina to another location due to pretrial publicity. He also contends that the district court should have ordered a public-opinion survey from public funds in support of his request to move tire trial.
But an appellate court reviews these rulings only for an abuse of discretion. And even though the rape of a 94-year-old hospitalized woman understandably received widespread media attention, the district court instituted special measures for jury selection that resulted in the selection of a fair and impartial jury without undue difficulty. We therefore find no abuse of discretion.
Parker also claims that the district court made several other errors during his trial. We have considered each of them but find no error, so we affirm Parker’s convictions.
Factual Background
To set the stage for our discussion of the legal issues, we first must go through the facts in some detail. Because we must take the facts in the light most favorable to the jury’s verdict on some issues, such as whether the evidence was sufficient to convict Parker, we will begin with the version of events presented by the victim, investigating officers, and witnesses other than the defendant. Later, we will also review what the defendant said took place.
The events relevant to this case began on the evening of February 20, 2010, at the Salina Regional Health Center. E.A.—a 94-year-old woman—was recovering from surgery. At the time, she couldn’t walk without assistance and had substantial swelling in her left leg. During her surgery, surgeons had made incisions in her groin, and she felt “veiy weak.”
After visiting hours were over, a man that E.A. had never seen before entered her room. She described him as heavyset, not terribly tall, “black, but not black,” with dark skin and closely cut hair; she would later identify that man as Parker. Parker sat down in E.A.’s room and chatted with her. E.A. assumed that Parker was a therapist, although Parker never said that he was.
After a nurse left the room, Parker got up and closed the door. Parker sat on the edge of the bed and rubbed E.A.’s swollen left leg. Then he touched, agitated, and penetrated E.A.’s vagina with his finger. E.A. testified that the contact hurt and was rough. She denied giving Parker any permission to penetrate her with his finger.
Parker then told E.A. to get up and lie on her stomach. E.A. protested, saying, “This isn’t therapy.” Parker tried unsuccessfully to penetrate her with his penis. Parker tiren exposed himself and told E.A. to fondle his penis, but she refused. Parker told E.A. to turn over on her hands and knees, and he unsuccessfully tried again to penetrate her in that position. As E.A. described it, Parker then “mounted [her].” E.A collapsed under Parker s weight screaming, “You’re killing me.”
After collapsing, E.A. was lying flat on her stomach, and Parker was lying on top of her. For the third time, Parker tried unsuccessfully to penetrate E.A. with his penis. E.A. denied giving Parker permission to attempt to penetrate her with his penis.
At this point, a nurse entered the room and saw Parker on E.A.’s bed with his pants down. Parker told the nurse that he was from physical therapy and E.A. was his aunt. He jumped to the floor, pulled up his pants, and left the room.
Parker tried to leave the hospital, but he was physically restrained by various members of the hospital staff. Parker calmed down only when officers arrived and handcuffed him.
A sexual-assault nurse examiner swabbed Parker’s hands for possible DNA evidence. All four swabs contained significant amounts of E.A.’s DNA. The DNA analyst believed that the large amount of E.A.’s DNA collected from the swabs was more consistent with vaginal secretions than mere skin-to-skin touching.
The same nurse gave E.A. a sexual-assault examination and found extensive bruising in E.A.’s groin area from the surgery and a laceration below her clitoris.
Before trial, Parker filed a motion to change venue, alleging that the extensive pretrial publicity in Salina was so great as to deny him an opportunity for a fair and impartial trial. To support the motion, Parker presented several newspaper articles covering the case—some of which reported on Parker’s prior criminal history— along with anonymous reader comments from the Internet. The court denied the motion to change venue.
At a later hearing, the State orally asked the court to reconsider Parker’s motion to change venue. The prosecutor expressed a concern that the case would be delayed if a jury could not be selected. After further consideration, the court once again denied the motion; the court said that reasonable measures could be taken to assure a fair and impartial jury.
Parker also filed a pretrial motion for expert services, requesting that the judge order the funding of a public-opinion poll “to sample community sentiment and the likelihood Mr. Parker can obtain a fair trial before an unbiased and impartial jury in Saline County.” The district court denied the motion, remarking that the poll would not be particularly helpful since the court planned to take additional measures in jury selection due to the pretrial publicity and “because the likelihood that those individuals that are polled are going to actually be on the panel that come[s] before the court is unlikely.” In support of the motion, the Board of Indigents’ Defense Services (BIDS) submitted an affidavit stating that it did not have the money to fund a public-opinion poll. During the hearing, the district court noted that Parker could proceed with a poll if BIDS chose to fund it or other funds were found that could be used: “[I]f you can get BIDS to agree to pay that, certainly, that’s what you all can work out. Or if Mr. Parker or his family can afford to pay for that poll, they can pursue that. . . . Again, if you can get BIDS to pay for it, that’s between you and them.”
Written questionnaires sent in advance of trial were among the measures the district court chose to use to help in selecting an impartial jury. The parties agreed to send out the questionnaires to 100 potential jurors. Additionally, the parties agreed to use small-group interviews, with individual questioning (away from other jurors) on material facts. This way, if one potential juror mentioned information that could bias others, at most a small group would be disqualified.
Based on the responses to the questionnaires alone, the parties agreed to excuse 46 potential jurors out of the 100 who had returned questionnaires. The parties then agreed to mail additional questionnaires to a new group of 46 people. The parties agreed to excuse an additional 20 potential jurors from that group. In total, then, 66 of 146 (45%) potential jurors who filled out the questionnaires were released based on the potential for bias before the jury-selection process began in the courtroom.
Questioning of potential jurors in the courtroom then began with groups of 20 to 23 members. Three panels with a total of 66 potential jurors were questioned. A fourth panel was canceled, and all but 10 members of the third panel were released because tire court had already qualified enough jurors (46) to seat a full jury of 12 plus 2 alternates (based on the number of peremptory challenges each side is allotted by law). Only a few additional jurors were excused for potential bias during questioning of the three panels. The district court commented on the relative ease it had in selecting the jury, noting that even those who had heard about the case or formed opinions “were readily able to admit that they were able to presume the defendant was not guilty, that he was innocent, and that they would be able to set aside what they had read and heard and readily agreed that they would base their decision upon the evidence presented.”
During jury selection, Parker renewed his motion to change venue several times. In addition, Parker refused to pass any of the three small groups “for cause,” something that is ordinarily done once a party has no more challenges to potential jurors based on specific claims of bias shown by individual jurors in answer to questions during the selection process. Parker s counsel conceded that he had no further for-cause challenges to individual jurors but still would not agree that he had no cause to object to the remaining potential jurors.
At trial, Parker made an oral motion to suppress the swabs of DNA collected from his hands, arguing that the DNA was obtained in an illegal search without a warrant or consent. In response, the State presented evidence that the officer who ordered collection of the swabs believed there was both (1) probable cause to believe a felony was committed and (2) exigent circumstances, circumstances that can justify a warrantless search. The officer explained that there were exigent circumstances because even though Parker was handcuffed, he still could have wiped his hand on his pants and destroyed possible DNA evidence before the officer could have obtained a warrant. The court found both probable cause and exigent circumstances, and it denied Parker’s motion to suppress.
Parker testified that he had entered the hospital to use the restroom. He said he could not find a restroom until he reached the third floor and entered E.A/s hospital room. Parker testified that after he noticed E.A. in the bed, he chatted with her and shook her hand. He insisted that this handshake was his only physical contact with E.A. Parker admitted that no one gave him permission to enter E.A.’s hospital room. Parker also said that his sweatpants often fell down and that he had to pull his sweatpants up when he got up from the chair.
The district court instructed the jury that “[sjexual intercourse means any penetration of the female sex organ by a finger or the male sex organ. Any penetration, however slight, is sufficient to constitute sexual intercourse.” The term “sexual intercourse” was used in the instructions on the charges of rape and attempted rape. For rape, attempted rape, and aggravated sexual battery, the State charged Parker with two different counts each—once under the theory that the victim was “overcome by force” and once under the theory that the victim was “physically powerless” to resist the offense. Each of the sex crimes required that the action was done “without the consent” of E.A.
The jury found Parker guilty on all charges—rape, attempted rape, aggravated sexual batteiy, battery, and aggravated burglary. Additionally, the jury unanimously found that because E.A. was particularly vulnerable due to her age, an aggravating sentencing factor had been established. The district court sentenced Parker to a controlling term of 1,240 months in prison.
Parker has appealed to this court.
Analysis
We will separately review each of the arguments Parker has raised on appeal. Before doing so, we note that the Kansas Criminal Code was recodified effective July 1,2011. Because Parker’s crimes occurred on February 20, 2010, we cite to the statutes defining each offense as of that date. See State v. Denney, 278 Kan. 643, 646, 101 P.3d 1257 (2004) (holding that criminal statutes in effect at date of crime govern).
I. The District Court Did Not Abuse Its Discretion in Denying Parkers Motion to Fund a Public-Opinion Poll About the Effects of Pretrial Publicity.
Parker’s first argument on appeal is that the district court should have granted his motion to require that public funds be spent to obtain a public-opinion survey that would show what impact there had been on potential jurors from extensive pretrial publicity about the case. The Board of Indigents’ Defense Services (BIDS) declined Parker’s request to fund that study, so Parker asked the court to order funding. Because Parker was indigent, his defense was paid for by public funds. He was represented by a salaried public defender, but out-of-pocket costs would be submitted to and paid for by BIDS.
A district court’s decision on a motion to fund expert services for an indigent defendant is reviewed for abuse of discretion. State v. Snodgrass, 252 Kan. 253, 265, 843 P.2d 720 (1992); State v. Haislip, 237 Kan. 461, 484, 701 P.2d 909, cert. denied 474 U.S. 1022 (1985). A district court abuses its discretion if its judgment is so arbitrary that no reasonable person would agree with it or if its ruling is based on an error of law or fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).
A reasonable person could agree with the district court’s decision. The court noted that it planned to take extra measures during jury selection to make sure that a fair and impartial jury could be found despite the extensive pretrial publicity. And the court worked with counsel for both sides to make that happen—first using written questionnaires to narrow down the potential jurors to an initial group that seemed untainted by pretrial publicity and then questioning them in greater detail usually in small groups, sometimes individually. The district court noted that it had no difficulty in qualifying a sufficient number of jurors, and no request by Parker to disqualify an individual juror for cause was denied. In similar cases, our Supreme Court has found no abuse of discretion in denying state funds for a pretrial public-opinion poll. See Haislip, 237 Kan. at 484-85 (finding no abuse of discretion in denying opinion survey when no significant difficulties were encountered at trial based on pretrial publicity and no challenge defendant made to strike an individual juror for bias was denied); State v. May, 227 Kan. 393, 396-97, 607 P.2d 72 (1980) (finding no abuse of discretion in denying opinion survey when juiy selection took only 3 hours and no significant difficulties were encountered at trial based on pretrial publicity).
Parker argues that the district court “abandoned” its role and “completely left the decision up to BIDS.” Were that the case, it would be an abuse of discretion. Discretion is granted to a trial judge so that decisions can be made based on appropriate considerations in a given case. And an abuse of discretion does occur if the judge refuses to exercise discretion or fails to appreciate the discretion he or she has. See State v. Horton, 292 Kan. 437, 440, 254 P.3d 1264 (2011). In support of this argument, Parker notes the comment the judge made that if BIDS agreed to pay, then Parker could have a survey. In our view, Parker misreads what took place at that hearing. The district judge concluded that a venue study wasn’t needed, explaining that the court and the parties were already taking appropriate measures to account for pretrial publicity. The judge also said that an opinion survey wouldn’t be particularly helpful. The judge didn’t abandon his duty here to exercise discretion—he simply noted that BIDS was free to fund a study if it chose to, but the court wasn’t going to order it to do so.
Parker also makes some legal arguments on this issue that we find off the mark. He argues that BIDS has a conflict of interest when it considers whether to grant funding for an expert. But whatever BIDS may do (or may have done here), Parker made a request to the district court to have it order the State to pay (through BIDS) for this public-opinion poll, and the district court exercised its discretion and denied the request. Parker also argues that his right to equal protection of the laws was violated because he says that Kansas statutes provide different standards for getting expert services for an indigent defendant depending upon whether a salaried public defender is involved or the defendant is represented by other counsel paid by the State. According to Parker, it’s unconstitutional for a statute to allow direct access to the court to request expert services if the indigent defendant is represented by an attorney other than a public defender, see K.S.A. 22-4508, while the public defender must first apply to BIDS. But equal protection is not about “theoretical inconsistencies.” Railway Express v. New York, 336 U.S. 106, 110, 69 S. Ct. 463, 93 L. Ed. 533 (1949). Even according to Parker’s argument, all defendants have the ability to apply for a court order that a study like the one requested here be funded at State expense. Parker has not shown any actual difference in treatment. See Board of Miami County Comm’rs v. Kanza Rail-Trails Conservancy, Inc., 292 Kan. 285, 315, 255 P.3d 1186 (2011) (noting that equal-protection claim rests on differing treatment of similarly situated individuals).
II. The District Court Did Not Abuse Its Discretion in Denying Parkers Motion to Change Venue.
Parker separately argues that tire district court should have granted his motion to change venue, thus moving the trial to an-otirer community. The decision on a motion to change venue is another matter entrusted to the district court’s discretion, and we do not reverse that decision unless there is an abuse of discretion that harms the defendant’s rights to a fair trial. State v. Higgenbotham, 271 Kan. 582, 591, 23 P.3d 874 (2001); State v. Krider, 41 Kan. App. 2d 368, Syl. ¶ 1, 202 P.3d 722 (2009), rev. denied 289 Kan. 1283 (2010). Even so, in determining whether the district court has taken sufficient measures to make sure that the case is tried to an impartial jury, an appellate court must make an independent evaluation of the circumstances. State v. Hayden, 281 Kan. 112, 128-29, 130 P.3d 24 (2006).
K.S.A. 22-2616(1) provides that a change-of-venue motion must be granted “if the court is satisfied that there exists in the county where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in that county.” Kansas courts consider a number of factors in determining on appeal whether such a motion should have been granted. Those factors include the ease with which a jury was selected, the degree to which publicity had circulated to other parts of the state where the trial could have been held, the challenges exercised by the defendant during jury selection, whether government officials contributed to the pretrial publicity, the severity of the offense, and the size of the area from which jurors were drawn. Higgenbotham, 271 Kan. at 592; Krider, 41 Kan. App. 2d at 372. But media publicity alone is never enough to establish prejudice. State v. Verge, 272 Kan. 501, 508, 34 P.3d 449 (2001); Krider, 41 Kan. App. 2d at 372. And the defendant has the burden to show that prejudice exists in the community, not as a matter of speculation but as a demonstrable reality; Higginbotham, 271 Kan. at 591-92; Krider, 41 Kan. App. 2d at 372.
Parker correctly notes that there was extensive pretrial publicity in the Salina media. He also notes that members of the public (though not necessarily from Salina) entered comments following stories on the Salina Journal website and that many of those comments showed bias against whoever committed the crime, a person many assumed to have been Parker. There was also mention in the media of Parker’s past convictions, and some members of the public commented about that too.
But this doesn’t show that fair jurors couldn’t be found in Salina. Any reasonable person would react with revulsion and anger at the facts that were alleged (and ultimately proven) in this case^—-the rape of a 94-year-old woman who was recovering from surgery in a hospital room. That revulsion doesn’t cloud eveiy person’s willingness to keep an open mind about what really happened and, if a rape took place, to keep an open mind about who committed it.
Parker is right that a significant number of potential jurors were biased against him: 45% of the potential jurors were eliminated due to apparent bias based on their written questionnaires. What Parker has not shown, however, is that he was unable to get a fair trial in Saline County. Jury selection went smoothly once potential jurors had passed the screening process of the questionnaires, and no request by Parker to excuse a juror for bias was denied by the district court.
Paifer argues that the publicity here was so extensive that prejudice should be presumed and the sworn statements of potential jurors that they could be impartial should be disregarded. In support, Parker cites Irvin v. Dowd, 366 U.S. 717, 727-28, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961), a case in which 8 of the 12 jurors selected had said that drey believed the defendant was guilty, and some jurors had said Üiat diey’d need evidence to overcome that belief, that they couldn’t give the defendant the benefit of the doubt, and that they had a “ ‘somewhat’ certain” fixed opinion. 366 U.S. at 728. Here, Parker points to only one juror actually selected who said he had “probably” formed an opinion but who also said that he could set that aside and hear the case impartially. Even in a highly publicized criminal case, “if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court,” that’s acceptable. 366 U.S. at 723. Notably, Parker neither asked to strike that juror for cause nor used one of his peremptory challenges to remove him.
Parker has not shown an inability to select a fair and impartial jury in Saline County. The district court effectively managed the jury-selection process so as to eliminate those who might be biased against Parker. The district court did not abuse its discretion by denying the motion to change venue. See State v. Deiterman, 271 Kan. 975, 978-79, 29 P.3d 411 (2001) (finding no abuse of discretion in denial of motion to change venue despite substantial pretrial publicity); Higginbotham, 271 Kan. at 593-95 (same); Krider, 41 Kan. App. 2d at 373-74 (same).
III. There Was Sufficient Evidence That E.A. Didn’t Consent to Parkers Actions, That She Was Overcome by Force, and That She Was Physically Powerless.
Rape, attempted rape, and aggravated sexual battery all require that the act be done without consent. In addition, as relevant in our case, the victim must be overcome by force or be physically powerless to resist. See K.S.A. 21-3502(a)(l)(A), (B) (rape); K.S.A. 21-3518(a)(l), (2) (aggravated sexual battery); K.S.A. 21-3301(a) (attempt crimes). Here, the State charged each of the crimes in two separate counts. For the rape charge, for example, there was one charge of rape by force and a separate charge of rape in which the victim was physically powerless. The district court separately instructed the jury on each of those as separate counts, though the court ultimately entered only a single rape conviction, a single attempted-rape conviction, and a single aggravated-sexual-battery conviction.
Parker contends that the evidence wasn’t sufficient for the jury to find lack of consent, force, or physical powerlessness. Because the juiy is the fact-finder and it convicted Parker, we must look at the evidence in the light most favorable to the State and determine whether, viewed in that light, a rational fact-finder could have found the defendant guilty beyond a reasonable doubt. See State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).
Lack of Consent
Parker claims that E.A. consented to be treated by hospital staff and that she believed that he was a therapist. Thus, he argues, she consented to what he did.
But E.A. never consented to sexual contact by hospital staff, and she testified that she didn’t consent to Parker putting his finger insider her or attempting to put his penis inside her—the acts that constituted rape and attempted rape.
The jury instructions said that Parker’s rubbing of E.A.’s leg, touching her breast, or rubbing her vaginal area could constitute aggravated sexual batteiy. The jury’s verdict concluded that Parker was guilty because he had rubbed her vaginal area and her leg. Arguably, had Parker been a therapist, E.A. might have consented to the therapeutic rubbing of her leg. But an additional element of aggravated sexual battery is that the act be done “with the intent to arouse or satisfy the sexual desires of the offender or another.” K.S.A. 21-3518(a). There was no evidence that E.A. consented to anyone rubbing her leg to satisfy that person’s sexual desires, which is what the jury found Parker did here. The jury could reasonably find that E.A. didn’t consent to any of Parker’s actions that were part of the charged crimes.
Overcome by Force
Parker contends that the evidence didn’t show that E.A. was overcome by any force other than the force required to achieve penetration. Parker’s argument highlights the elusiveness of any specific definition of the concept. Our Supreme Court has said that “[fjorce or fear within the definition of rape is a highly subjective concept that does not lend itself to definition as a matter of law.” State v. Tully, 293 Kan. 176, Syl. ¶ 12, 262 P.3d 314 (2011); see State v. Brooks, 46 Kan. App. 2d 601, 613, 265 P.3d 1175 (2011), rev. granted 294 Kan. 944 (June 13, 2012).
Parker cites State v. Hendrix, 289 Kan. 859, 862, 218 P.3d 40 (2009), which defined force as physical contact—not just threats or displays of force. But Hendrix wasn’t a rape case. Its discussion related to the conclusion that a jury instruction on self-defense wasn’t needed unless actual physical force was used and the crimes at issue were criminal threat and aggravated assault. But even if actual physical force is required, the State presented evidence that Parker “agitated” E.A.’s vagina before inserting his finger and that the contact hurt and was rough. In addition, E.A. suffered a laceration, collapsed under Parker’s weight after he “mounted” her, and she screamed out, “You’re killing me!” There was sufficient evidence for the jury to find that E.A. was overcome by force with respect to each of the crimes.
Physically Powerless
Parker claims that the evidence wasn’t sufficient to show that E.A. was physically powerless because “[t]he ordinary meaning of the words physically powerless’ would seem to be bodily immobile or without power." Whatever abstract meaning can be attributed to the words “physically powerless,” we confront them in the context of a rape statute that forbids sexual intercourse without consent “when the victim is . . . physically powerless.” K.S.A. 21-3502(a)(1)(B).
E.A. was 94 years old and recovering in a hospital from major surgeiy. She had been in the intensive-care unit the day before the attack. She couldn’t walk by herself and was essentially bedridden. Additionally, Parker outweighed her by about 150 pounds, and E.A. testified that she couldn’t have done anything to fight him. The ordinary meaning of “physically powerless” in the context of the rape statute doesn’t require total immobility; it requires only a physical inability to resist the attacker. There was sufficient evidence to find that E.A.’s age, frailty, and weakness left her physically powerless to resist Parker, a man who was far bigger, stronger, and younger.
IV. There Was Sufficient Evidence to Support Parkers Convictions for Rape and Attempted Rape. ,
Based on the charges and the applicable. statutes, the district court instructed the jury that it could find rape or attempted rape if E.A. was penetrated either by a finger or by the male sex organ. On the rape charge, Parker concedes there was evidence of finger penetration but argues that that was no evidence of penile penetration. On tlie attempted-rape charge, he argues that there was no evidence of attempted penetration by a finger—only completed penetration by a finger. Thus, Parker contends that the State presented alternative means of committing these crimes but proved only one of two alternatives. He then contends that because the evidence wasn’t sufficient to meet one of the alternative means, die rape and attempted-rape convictions must be set aside.
Parker is right that the statute provides that the penetration necessary to commit the crime of rape may be done by a finger or by a penis. K.S.A. 21-3501(1) defined sexual intercourse as “any penetration of the female sex organ by a finger, the male sex organ or . any object,” and K.S.A. 21-3502(a)(l)(A) defined rape generally as sexual intercourse without consent when the victim is overcome by force or fear. The juiy instructions generally tracked these statutes to define sexual intercourse.
Parker is also right that when a statute defines a crime through alternative means, either of which might be committed, the jury may convict without agreement on which of the means took place so long as there is sufficient evidence to support each of the means. State v. Wright, 290 Kan. 194, Syl. ¶ 2, 224 P.3d 1159 (2010). But “alternative means” is a legal term of art, meaning the term has a specific meaning apart from its general usage—it is only when a statute creates “materially different” ways of committing a crime, i.e., two or more truly “distinct ways of committing an offense,” that there are alternative means for the purpose of an argument like Parker makes here. State v. Johnson, 46 Kan. App. 2d 870, Syl. ¶ 8, 265 P.3d 585 (2011). So we must first determine whether rape and attempted rape are alternative-means crimes in the way Parker contends.
Our court recently-held in State v. Schreiner, 46 Kan. App. 2d 778, 783-84, 264 P.3d 1033 (2011), petition for review filed December 5, 2011, that the rape statute did not create an alternative means so as to require evidence of penile penetration, finger penetration, and penetration by some other object to convict a defendant of rape:
“The statutes actually define a single means of committing rape; it is nonconsen-sual penetration of the female genitalia with something. The definitional statute then characterizes the instrumentality as a finger, the male sex organ, or an object. All of those terms, strictly speaking, may be unnecessary. If they were omitted, sexual intercourse would be defined as penetration of the female sex organ. Anything used to accomplish the act of penetration would meet that definition. . . .
. . The wording reflects verbal redundancy rather than differing ways or alternative means of committing a criminal offense. In short, the definition of sexual intercourse cannot reasonably be viewed as creating alternative means of committing rape.”
The Schreiner court acknowledged that some degree of redundancy is acceptable in criminal statutes in the interests of comprehensibility, completeness, and giving fair notice of the criminalized conduct. 46 Kan. App. 2d at 785.
The Schreiner decision has been followed by several other panels of this court. See, e.g., State v. Boyd, 46 Kan. App. 2d 945, 949, 268 P.3d 1210 (2011), petition for review filed January 23, 2012; State v. Martinez, No. 104,695, 2012 WL 1524034, at *4-5 (Kan. App. 2012) (unpublished opinion), petition for review filed May 29, 2012; State v. Jones, No. 105,480, 2012 WL 1072761, at *2-3 (Kan. App. 2012) (unpublished opinion), petition for review filed April 19, 2012; State v. Brooks, No. 105,358, 2012 WL 309075, at *3-4 (Kan. App. 2012) (unpublished opinion), petition for review filed February 27, 2012; State v. Ochoa, No. 104,746, 2012 WL 98508, at *6 (Kan. App. 2012) (unpublished opinion), petition for review filed February 6, 2012. Additionally, this court has ruled that explanatory definitions in jury instructions do not create an alternative means for committing a crime. See State v. Waldrup, 46 Kan. App. 2d 656, 668-69, 263 P.3d 867 (2011) (holding jury instruction’s explanatory definition of sale of cocaine did not create alternative means of committing crime because the broad definition of the term “sale” did not reasonably confuse the jury about what criminal conduct the State had to prove to find defendant guilty), petition for review filed November 16,2011. We agree with these previous opinions that the Schreiner decision is well reasoned and highly persuasive. The State wasn’t required to present evidence that E.A. was penetrated by both Parker’s finger and his penis for him to be convicted of rape. Nor did the State have to present evidence that Parker tried—but-failed—to achieve penetration with both his finger and his penis for him to be convicted of attempted rape.
V. There Was Sufficient Evidence to Support Parker s Conviction for Aggravated Burglary.
Aggravated burglary is the knowing entry into ■ or remaining within, without authority, “any building, manufactured home, mobile home, tent or other structure . . .-in which there is a human being, with intent to commit a felony, theft or sexual battery therein.” K.S.A. 21-3716. Parker contends that E.A.’s hospital room was not a “structure” under the aggravated-burglary statute.
We once again look at the evidence in the light most favorable to the State. To the extent we must interpret the aggravated-burglary statute, we do so independently, without any required deference to the district court. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
Parker relies primarily on State v. Hall, 270 Kan. 194, 14 P.3d 404 (2000), in which the defendant’s conviction for burglary from an unlocked stockroom inside a K-Mart store was reversed because the defendant was authorized to enter the store. Similarly, Parker argues that he was authorized to enter the hospital, which was open to the public.
Two other cases suggest a different result here. The closest precedent to our case is an unpublished decision, but it is factually similar to our case. In State v. Hauser, No. 95,744, 2007 WL 2819883 (Kan. App. 2007) (unpublished opinion), rev. denied 286 Kan. 1192 (2008), the defendant entered a tanning salon asking about a tanning package for his girlfriend. He then asked to use the bathroom but instead went into a tanning booth occupied by a woman. The victim noticed him watching her, and the man then attempted to take the victim’s folded-up clothing and wallet but fled after she began shouting. Our court noted that the tanning room was temporarily “ ‘leased’ ” to occupants and was designed to exclude others from entry and protect the security and privacy of the occupant. Thus, our court held that the tanning booth was a structure capable of being burglarized. 2007 WL 2819883, at *2-3.
Another case of note is State v. Vinyard, 32 Kan. App. 2d 39, 78 P.3d 1196 (2003), rev. denied 277 Kan. 927 (2004). In it, the defendant entered a Dillard’s store within a shopping mall to steal a CD player and sunglasses. The defendant had previously been banned from entering that particular store but not the mall. Our court held that when someone enters “a business that is completely enclosed and secured separate and distinct from the other businesses in a public mall, the individual is entering a building as described in K.S.A. 21-3716.” Vinyard, 32 Kan. App. 2d at 42-43.
E.A.’s hospital room shared nearly all the characteristics of the tanning booth in Hauser. The hospital room had a door, was temporarily leased to occupants, was designed to exclude others, and was intended to protect the occupant’s privacy and security. Just as the defendant in Hauser wasn’t authorized to enter the tanning booth even though he’d made permissible entry to the business and had permission to use its bathroom, Parker wasn’t authorized to enter E.A.’s third-floor patient room even though the public could enter the hospital building. As in Vinyard, an individual patient room is enclosed and distinct from the public areas of tire hospital. And unlike Hall, where there are normally no people who occupy a K-Mart stockroom, a patient usually occupies a hospital patient room.
Parker entered a patient room in which E.A. resided, albeit temporarily. Thus, Parker entered a structure as defined in K.S.A. 21-3716.
VI. The District Court Did Not Err in Ruling the DNA Swabs Taken from Parkers Hands Were Admissible.
Parker sought to exclude the DNA evidence obtained from the swabs taken from his hands shortly after his arrest based on his argument that taking the swabs violated his constitutional rights. Of course, the Fourth Amendment to the United States Constitution (applied to the states under the Fourteenth Amendment) prohibits unreasonable searches, and warrantless searches are considered unreasonable unless a recognized exception permits them. State v. Daniel, 291 Kan. 490, 496, 242 P.3d 1186 (2010), cert. denied 131 S. Ct. 2114 (2011). Here, the State argues the recognized exception for probable cause plus exigent circumstances. The State must show that its agent had probable cause to search and that die immediate search was justified by exigent circumstances, which exist when the officer “reasonably believes there is a threat of imminent loss, destruction, removal, or concealment of evidence.” State v. Fewell, 286 Kan. 370, 377, 384-85, 184 P.3d 908 (2008).
There can be no doubt that the officer here had probable cause to believe that Parker had committed a felony. E.A. had told officers what had happened, and a nurse had found Parker on E.A.’s bed with his pants down. So the only question is whether Aere were exigent circumstances to take swabs for DNA evidence from Parkers hands.
An officer testified that even though Parker was handcuffed, he could have wiped his hand on his pants before officers could get a warrant, potentially destroying fragile DNA evidence. Parker suggests that officers instead could have monitored him for however long it took to locate a judge and get a search warrant. But even a momentary slipup might result in the destruction of evidence. The Astrict court properly concluded Aat Ae officer reasonably believed there was a Areat of imminent loss or destruction of evidence if the swabs weren’t taken immeAately. The Astrict court Aus properly denied Ae motion to suppress Ae DNA evidence and properly admitted that evidence.
We find Aat the Astrict court Ad not abuse its Ascretion here, and we have found no other errors on appeal. The district court’s judgment is therefore affirmed. | [
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Knudson, J.:
This is an interlocutory appeal by Rebecca Foley from the order of the district court denying her petition to dismiss the claim of Greta Holsinger filed in the estate proceedings of Jack V. Foley, deceased. Greta contends that Foley is her biological father. Rebecca contends that Greta’s claim is time barred. The district court disagreed and dismissed Rebecca’s petition.
We reverse, concluding Greta’s claim is time barred and must be dismissed.
Factual Circumstances
Foley died intestate on September 12, 1995. Greta filed a proof of claim, alleging that Foley was her biological father. Greta stated that her biological mother, Betty Wilkinson, had been married at the time when she became pregnant by Foley. Greta filed a motion that requested DNA testing on blood samples in order to prove that she is Foley’s biological daughter. The motion stated that (1) Foley had died in an automobile accident in Missouri; (2) the coroner in Missouri had withdrawn blood samples from Foley and those samples were being held in Missouri; and (3) during a paternity action in 1993, a DNA test had been administered to Foley which established that he was the biological father of Rebecca Good (now Rebecca Foley) and those test results were available.
Analysis
Greta claims that she is Foley’s daughter. For intestate succession purposes, a child includes someone “whose parentage is or has been determined under the Kansas parentage act.” K.S.A. 59-501(a).
The Kansas Parentage Act (KPA) is codified in K.S.A. 38-1110 et seq. Two provisions of the KPA directly bear on the issue before this court.
K.S.A. 1995 Supp. 38-1114 consists of various circumstances under which there is a presumption of paternity. For purposes of this appeal, the statute states in material part:
“(a) A man is presumed to be the father of a child if:
“(1) The man and the child’s mother are . . . married to each other ....
“(5) Genetic test results indicate a probability of 97% or greater that the man is the father of the child.
“(c) If two or more presumptions under this section arise which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic, including the best interests of the child, shall control.”
K.S.A. 1995 Supp. 38-1115 states:
“(a) A child or any person on behalf of such a child, may bring an action:
“(1) At any time to determine the existence of a father and child relationship presumed under K.S.A. 38-1114 and amendments thereto; or
“(2) at any time until three years after the child reaches the age of majority to determine the existence of a father and child relationship which is not presumed under K.S.A. 38-1114 and amendments thereto.”
In her written claim filed with the court, Greta asserted that she was Foley’s daughter and “a comparison of her DNA with Jack V. Foley’s DNA will conclusively show that Jack V. Foley is her biological father.”
In the hearing to dismiss Greta’s proof of claim, the district court determined K.S.A. 38-1114(a)(l) to be applicable rather than K.S.A. 38-1114(a)(2) and ordered release of Foley’s blood samples and DNA tests for genetic testing to “try [and] establish a presumption of paternity under K.S.A. 38-1114(a)(5).” (The blood samples and DNA tests referred to by the district court were taken in a paternity action prior to Foley’s death and by a medical coroner after his death.)
Because the issue on appeal requires us to construe the KPA, our scope of review is unlimited. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995). We also observe that “[w]hen a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be.” Martindale v. Tenny, 250 Kan. 621, Syl. ¶ 2, 829 P.2d 561 (1992).
The KPA has previously been construed in In re Marriage of Ross, 245 Kan. 591, 594, 783 P.2d 331 (1989). The Supreme Court stated:
“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.”
The KPA became law in 1985 (L. 1985, ch. 114), and there were no amendments to either K.S.A. 38-1114 or K.S.A. 38-1115 until 1994 (L. 1994, ch. 292, §§ 5, 6).
In 1994, K.S.A. 38-1114(a) was amended to provide a presumption of paternity if “genetic test results indicate a probability of 97% or greater that the man is the father of the child.” L. 1994, ch. 292, § 5. It is apparent from a review of legislative history that the amendment was believed necessary to bring the KPA into compliance with Congress’ Omnibus Budget Reconciliation Act of 1993 (OBRA). OBRA required all states to develop a hospital-based paternity acknowledgment program, as well as provide for a presumption of paternity, if genetic test results exceeded a specific threshold of probability. See 42 U.S.C. § 652(g) (1994).
K.S.A. 38-1115(a) was not amended as a result of OBRA, and the minutes of the Senate Judiciary Committee do not indicate any discussion whatsoever of this section of the statute. Consequently, a review of legislative history is not affirmatively helpful in resolving the issue on appeal.
However, by reading the subsections of K.S.A. 1995 Supp. 38-1114(a) in pan materia, legislative intent is ascertained. Before the 1994 amendment of K.S.A. 38-1114, each set of circumstances giving rise to a presumption of paternity rested solidly on facts in being before the paternity action was commenced. For example, the putative father was married to the child’s mother, or he had a duty to support the child under an order of support, or he executed a voluntary acknowledgment of paternity.
We believe that the genetic test results amendment in K.S.A. 1995 Supp. 38-1114 must be construed in a manner consistent with the other circumstances giving rise to a presumption of paternity; that is, genetic test results giving rise to a presumption of paternity must be known before an action is commenced under the KPA. A contrary construction would render the 3-year statute of limitations in K.S.A. 1995 Supp. 38-1115(a)(2) meaningless until genetic testing has been completed under K.S.A. 1995 Supp. 38-1118. We should not conclude that the legislature intended to make a nullity of an existing law by implication.
In summary, we hold the district court erred in its construction of K.S.A. 1995 Supp. 38-1114(a)(5) and application of K.S.A. 1995 Supp. 38-1115(a)(l). The genetic test results must be known before a presumption of paternity arises; if no genetic test results to establish paternity have been completed before the parentage action is commenced, K.S.A. 38-1115(a)(2) is applicable. When Greta filed her lawsuit, the only presumption was that J.D. Wilkinson, who was married to Greta’s mother and the man who reared her, was her father. Thus, K.S.A. 38-1115(a)(2) is applicable and bars her claim against Foley’s estate.
Reversed. | [
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|
Pierron, P.J.:
Darryl Payton appeals the district court’s denial of his motion for writ of habeas corpus pursuant to K.S.A. 60-1507. Payton argues he was denied 3 years of jail time credit when the district court refigured his sentence under the Kansas Sentence Guidelines Act (KSGA) after he committed a felony while on parole. We agree and reverse.
On September 24, 1991, a jury convicted Payton of aggravated battery, and the district court sentenced him to 5 to 20 years’ imprisonment. On November 24, 1993, the Kansas Parole Board granted Payton parole, and he was released from custody. While on parole, Payton was convicted of one count of possession of narcotics for events occurring on December 31, 1993, and one count of robbery for events occurring on January 9, 1994. He was sentenced to concurrent terms of 28 months’ and 57 months’ incarceration respectively. It is unclear from the record, but the State does not contest the fact that Payton’s 5- to 20-year sentence was then converted pursuant to K.S.A. 1993 Supp. 22-3717(f) to 12 months, to run consecutive to his new sentence. This gave Payton a new sentence of 69 months’ incarceration [57 (new) + 12 (original then converted)].
Payton filed a motion for writ of habeas corpus pursuant to1K.S.A. 60-1507 requesting that he receive 3 years jail time credit against the converted 12-month sentence. The district court denied the motion, stating:
“I believe it’s clear and specific and converts the unused portion of the sentence to 1 year. The reason they say parole or conditional release is that these particular individuals are in a unique situation as opposed to someone who served his entire sentence and just been released, flat out. Not on parole or anything else. Parole implies there’s something remaining and if you violate these conditions, you’ll have to go back and serve the rest of that sentence.”
Payton argues the district court incorrectly denied his motion for writ of habeas corpus because he has 3 years of jail time credit that should be applied to this converted sentence under the KSGA.
A resolution of the issue will require this court to interpret the applicable provisions of the KSGA. Questions of statutory interpretation are questions of law. When determining questions of law, this court is not bound by the decision of the district court. State v. Donlay, 253 Kan. 132, 133-34, 853 P.2d 680 (1993). We are guided in our statutory analysis by the following:
“The power to prescribe the penalty to be imposed for the commission of a crime rests exclusively with the legislature, not the courts. The power of the legislature to specify the punishment for a crime is controlled only by the Constitutions of the United States and the State of Kansas.” State v. Keeley, 236 Kan. 555, 560, 694 P.2d 422 (1985).
“We have stated that the fundamental rule of statutory construction, to which all others are subordinate, is that the purpose and intent of the legislature governs when that intent can be ascertained from the statute. In determining legislative intent, courts are not limited to a mere consideration of the language employed but may properly look to the historical background of the enactment, the circumstances attending its passage, the purposes to be accomplished and the effect the statute may have under the various constructions suggested. [Citations omitted.]” State v. Thompson, 237 Kan. 562, 563, 701 P.2d 694 (1985).
“Penal statutes must be strictly construed in favor of the persons sought to be subject to them. The rule of strict construction simply means ordinary words are to be given their ordinary meaning. The 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 contained therein. A statute should never be given a construction that leads to uncertainty, injustice or confusion, if it is possible to construe it otherwise. In construing a statute, words and phrases should be construed according to the context, and the approved usage of the language and words in common use are to be given their natural and ordinary meaning. [Citation omitted.]” 237 Kan. at 566.
This case deals with a relatively small window of applicability. With the implementation of the KSGA, the legislature amended K.S.A. 22-3717 to provide that if an inmate was sentenced for a felony committed after July 1, 1993, while on parole or conditional release for a felony committed prior to July 1, 1993, the old sentences would be converted into a determinate sentence. The converted sentence would then run consecutive to the new sentences: 12 months for class C, D, or E felonies or the conditional release date, whichever is shorter, and 36 months for class A or B felonies or the conditional release date, whichever is shorter. See K.S.A. 1993 Supp. 22-3717(f); Kansas Sentencing Guidelines Desk Reference Manual, p. 36 (1995).
Soon after imposition of the KSGA, the Kansas Legislature amended K.S.A. 1993 Supp. 22-3717(f), and the changes became effective March 24, 1994. L. 1994, ch. 21, § 1. This statute now reads in relevant part:
“If a person is sentenced to prison for a crime committed on or after July 1, 1993, while on probation, parole, conditional release or in a community corrections program, for a crime committed prior to July 1,1993, and the person is not eligible for retroactive application of the sentencing guidelines and amendments thereto pursuant to K.S.A. 21-4724 and amendments thereto, the new sentence shall not be aggregated with the old sentence, but shall begin when the person is paroled or reaches the conditional release date on the old sentence. If the offender was past the offender’s conditional release date at the time the new offense was committed, the new sentence shall not be aggregated with the old sentence but shall begin when the person is ordered released by the Kansas parole board or reaches the maximum sentence, whichever is earlier. The new sentence shall then be served as otherwise provided by law.”
Applying the new version of K.S.A. 22-3717(f), if an inmate is sentenced to prison for a crime committed on or after March 24, 1994, upon revocation of parole the old sentence will not be converted to a determinate term of months and aggregated with the sentence for the new crime. Instead, after revocation of parole, the offender will not begin serving the new sentence until the offender is reparoled, conditionally released, or reaches the maximum expiration date of the sentence. This is contrary to the 1993 version of 22-37l7(f), and it evidences a clear intent by the legislature to remedy the problem involved in this case. However, we are concerned with tíre 1993 version of22-3717(f) since Payton committed the crimes while on parole during December 1993 and January 1994. Criminal statutes and penalties in effect at the time of a criminal offense are controlling. State v. Mayberry, 248 Kan. 369, Syl. ¶ 15, 807 P. 2d 86 (1991).
The State argues it is absurd to think that a parolee would serve no additional time after violating parole by committing a new offense and insists the statute does not provide that “if the inmate has already served the converted time and his conditional release date has passed, he would no longer be subject to further ‘incarceration.’ ” However, the State’s proposition fails to take into consideration the fact that the offender must still serve the jail time for the crimes committed on parole regardless of whether he or she has completed the sentence of the old crimes.
Additionally, the State’s theory does not account for the situation of an inmate being on parole during the implementation of the KSGA. The underlying premise of the KSGA was to reduce the prison population while protecting public safety. Those inmates who were considered “less serious offenders” were granted a conversion of their sentence under the KSGA. Chiles v. States, 254 Kan. 888, 901, 903, 869 P.2d 707, cert. denied 130 L. Ed. 2d 88 (1994). Arguably, a somewhat similar rationale is used for inmates who are granted parole. In this case the parole board found there was a “reasonable probability that [Payton] is able and willing to fulfill the obligations of a law-abiding citizen” and granted him parole. Therefore, inmates who are granted parole are those individuals considered less serious offenders or not a threat to public safety.
There are no provisions in the KSGA to support the district court’s holding that only the unserved portion of Payton’s original sentence is converted to the 12-month determinate sentence. K.S.A. 1993 Supp. 22-37l7(f) provides for the conversion of the old sentence, not conversion of the remaining time on the old sentence. In general, if an inmate was incarcerated during the imposition of the KSGA, the Kansas Department of Corrections was required to convert the sentences of those eligible inmates. See State v. Gonzales, 255 Kan. 243, Syl. ¶ 5, 874 P.2d 612 (1994) (legislative intent in adopting the retroactivity provision of the KSGA was to make conversion mandatory). In converting the indeterminate sentences, the inmates are not required to serve the KSGA sentence in addition to the time already served, but are released if the jail time credit already exceeds the inmate’s KSGA converted sentence. See Phillpot v. Shelton, 19 Kan. App. 2d 654, 661-64, 875 P.2d 289, rev. denied 255 Kan. 1003 (1994) (court considered and rejected the argument that time spent in prison under the prior sentence should satisfy both the prison and post-release supervision portions of the converted guidelines sentence). The language of K.S.A. 1993 Supp. 22-3717(f) provides for nothing but mandatory conversion of the parole violator’s indeterminate sentence.
We adhere to the principle of statutory construction that a statute should not be read to add that which is not readily found therein. See Thompson, 237 Kan. at 566. Although the legislature has apparently remedied the jail time credit problems of a case of this nature for felonies committed on parole or conditional release after March .24, 1994, Payton is covered by the 1993 version of K.S.A. 22-3717(f). Payton is entitled to conversion of his entire indeterminate sentence, and given his time served, he has completed his sentence for the crimes committed in 1991. Otherwise, he would be deprived of jail time credit. See State v. Fowler, 238 Kan. 326, 336, 710 P.2d 1268 (1985) (in Kansas, the right to jail time credit is statutory); State v. Babcock, 226 Kan. 356, Syl. ¶ 1, 597 P.2d 1117 (1979) (K.S.A. 21-4614 requires that a defendant be given credit for time spent in jail).
This decision, of course, does not affect the 57-month sentence imposed for the robbery and possession of narcotics convictions.
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Pierron, J.:
Donald E. Cukjati, Joe Cukjati, and Frank Leroy Cukjati each filed a petition requesting that the inheritance taxes on the joint tenancy property they held with the decedent (their mother’s sister’s husband) be paid out of the estate. The district court denied the petitions, and the Cukjatis now appeal. We affirm.
Charles William Shoemaker (testator) died testate on June 22, 1994. On the date of the testator’s death, $194,488.87 of the $262,762.82 estate was jointly owned property. The Cukjatis were joint owners of approximately $115,000 of this property.
The will contains, inter alia, the following clauses:
“SECOND: Bequest of Property. I give, devise and bequeath all of my property whether real or personal and wheresoever situated, including any vehicles which I may own, to my brother, Robert L. Shoemaker, and my sister, Helen Helms, in equal shares, share and share alike.
“FOURTH: Payment of Taxes. I direct that all federal estate and inheritance taxes of every kind and nature, shall be paid from the residue of my estate.
“FIFTH: Joint Tenancy. I declare that it is my intention that any property I own at the time of my death with any individual or individuals as joint tenants with right of survivorship, shall pass to such named individual or individuals by survivorship and that nothing in this Will, or any Codicil later executed by me, shall be construed to destroy any joint tenancy provision affecting said property.”
The district court held that the will did not clearly and unambiguously demonstrate an intent by the testator to burden the estate (which he bequeathed to his sister and brother) with payment of inheritance taxes on the joint tenancy property.
The issue is whether the language of the will defeats the statutory apportionment of inheritance tax and requires the payment of the inheritance taxes on the Culq'atis’ property by the residuary estate. We believe it does not.
The parties disagree as to the appropriate standard of review. The Cukjatis argue that because the only evidence before the district court was documentary in nature, this court can interpret the documents as well as the district court. The executor argues that this court cannot disregard the district court’s finding absent a finding of an arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias.
In interpreting wills, Kansas appellate courts have uniformly held that where the only evidence before the trial court is documentary in nature, the appellate court can interpret the document as well as the district court. See In re Estate of Miller, 186 Kan. 87, 95, 348 P.2d 1033 (1960); Bradley v. Estate of Jackson, 1 Kan. App. 2d 695, 696, 573 P.2d 628 (1977). This rule is applied where the parties provide a stipulation of facts. See Wallace v. Magie, 214 Kan. 481, 488, 522 P.2d 989 (1974).
There is no indication that any evidence was submitted to the district court other than the documents in the record. The district court made its decision based on the will, the briefs, and a stipulation of facts agreed to by the parties.
Moreover, in In re Estate of Cline, 258 Kan. 196, 199, 898 P.2d 643 (1995), in interpreting a will, the court held: “The construction of a written instrument is a question, of law, and the instrument may be construed and its legal effect determined by an appellate court.”
Thus, this court has unlimited review of the issues presented in this appeal.
Kansas inheritance tax is a succession tax imposed upon the right of the recipient to receive property. See K.S.A. 1995 Supp. 79-1537(a); Wendland v. Washburn University, 8 Kan. App. 2d 778, 779, 667 P.2d 915 (1983). Inheritance taxes are to be paid so that “each distributive share of the estate shall bear a just and equitable proportion of such taxes unless otherwise directed by the will of the decedent or trust agreement.” K.S.A. 1995 Supp. 79-1564(d). See In re Estate of West, 203 Kan. 404, 407, 454 P.2d 462 (1969).
Property owned by a testator and another as joint tenants passes to the survivor, and such property is not part of the probate estate. See In re Estate of Laue, 225 Kan. 177, 185, 589 P.2d 558 (1979). However, joint tenancy property is subject to inheritance tax. K.S.A. 79-1554(a). If an executor does not deduct the tax, the surviving joint tenant is personally liable. K.S.A. 1995 Supp. 79-1569(b). In this case, the executor did not deduct the taxes from the Cukjatis’ joint tenancy property.
The intent of the testator to defeat the statutory apportionment and shift the tax burden must be expressed in clear and unambiguous language. The burden of proof is on the party contending that the statutory apportionment should not be applied. Wendland, 8 Kan. App. 2d at 779-80.
In Kansas, a general direction to pay “taxes” out of the estate is not sufficient to shift the burden of tire statutory apportionment of payment of inheritance taxes by the recipients to the estate. In Wendland, 8 Kan. App. 2d at 778-79, the will provided that “ '[wjhatever is left after paying taxes, expenses of administration, etc., may be divided’ ” among the various devisees and legatees. The Wendland court stated:
“Inheritance taxes . . . are not charged to the estate itself, but rather are imposed upon the right of the distributee to receive the property. Absent a clear and unambiguous direction to the contrary, Kansas inheritance taxes are to be paid from the assets of the decedent’s estate or proceeds therefrom, in order, so far as practicable, that each distributive share of the estate shall bear a just and equitable proportion thereof.” 8 Kan. App. 2d at 781-82.
The court held that the language of the will was insufficient to defeat the statutory apportionment of inheritance taxes. 8 Kan. Ápp. 2d at 781.
The Wendland court noted there is a split of authority as to whether a simple direction to pay taxes is sufficient to shift the tax burden. Wendland discusses cases from other jurisdictions involving variations of the phrases “taxes,” “all taxes,” and “all taxes of my estate.” 8 Kan. App. 2d at 780-81. See also Bushee v. Bushee, 303 N.W.2d 320, 321-22 (N.D. 1981) (holding that a direction to pay “all of my debts, taxes, etc.” was insufficient to defeat the statutory apportionment of estate taxes); In re Henderson s Estate, 46 Wash. 2d 401, 402, 281 P.2d 857 (1955) (holding that “[a] mere statement that the testator desires his taxes to be paid does not clearly express an intention to charge his estate with taxes imposed by law upon a beneficiary”); In re Ogbum’s Estate, 406 P.2d 655, 657, 661-62 (Wyo. 1965) (holding that a clause that directs payment of “all . . . taxes ... of my estate” was insufficient to overcome the statutory allocation).
In Illinois, a specific direction to pay inheritance taxes out of the estate is generally sufficient to defeat the statutory apportionment. See, e.g., In re Estate of Wheeler, 65 Ill. App. 2d 201, 213 N.E.2d 35 (1965). Along these lines, the Wendland court noted “the need to clearly specify the nature of the taxes embraced.” 8 Kan. App. 2d at 781 (citing Starr v. Watrous, 116 Conn. 448, 452, 165 A. 459 [1933]).
In Starr, 116 Conn, at 449, Article I of the will provided: “1 direct that all my just debts, funeral expenses, succession and other taxes be paid by my executors hereinafter named.’ ” The court reasoned:
“If the testatrix had merely directed that her debts, funeral expenses, and taxes be paid by her executors, without specific mention of succession taxes, the pro vision doubtless would be construed as referring only to taxes which are ordinarily payable out of the estate as are other debts of the testatrix and, as in Jones Estate, 12 Pa. Dist. R. 83, not expressing with sufficient clearness an intention to include taxes normally payable out of the several legacies.” 116 Conn, at 452.
The Starr court held that specifying the succession taxes were to be paid by the executor was sufficient to defeat the statutory apportionment. See 116 Conn, at 452-54.
The executor argues that because the joint tenancy property passed outside the will, the failure to specifically mention the non-probate or nontestamentaiy property in the tax clause indicates that the testator did not intend for the estate to pay the inheritance taxes on the joint tenancy property. We agree.
We note authorities outside Kansas differ on whether the failure to specifically mention or include nontestamentary property in a tax clause renders the tax clause ineffective in defeating the statutory apportionment of taxes on that property.
In Wheeler, 65 Ill. App. 2d at 203, the will provided that the executor should pay from the principal of the estate “ ‘all estate, inheritance, transfer and succession taxes.’ ” The issue was whether the estate should pay the inheritance tax on an inter vivos trust. The court held that die language of the will was sufficient to require the executor to pay the inheritance tax out of the estate, even though the trust was not an asset of the probate estate and the will did not specifically refer to the trust. 65 Ill. App. 2d at 206. But see Skaggs v. Yunck, 10 Or. App. 536, 500 P.2d 1230 (1972) (holding that the failure to specifically refer to the inter vivos trust prevented burdening the estate with the inheritance taxes on the trust).
The executor points to Annot., Construction and Effect of Will Provisions Expressly Relating to the Burden of Estate or Inheritance Taxes, 69 A.L.R.3d 122, 270-71, for contrary authority. Many of the cases cited therein, however, are factually distinguishable from the instant action.
In the instant action, the district court and the executor both noted that the testator could have specifically referred to the non-probate property in the tax clause. See Industrial Nat. Bank v. Barrett, 101 R.I. 89, 101-02, 220 A.2d 517 (1966) (relying on the testatrix’s failure to specifically refer to nonprobate assets, the court held that a direction to pay all debts, including all estate and inheritance taxes, did not clearly express the intent to burden the estate with the payment of inheritance taxes on “appointed,” non-probate property). Several Kansas cases recite will language specifically referencing nonprobate property in the tax clause. See Cline, 258 Kan. at 198; In re Estate of Pickrell, 248 Kan. 247, 249-50, 806 P.2d 1007 (1991). These cases clearly express the intent to defeat the statutory apportionment. See 4 Bartlett’s, Kansas Probate Law and Practice § 1815 (rev. ed. 1953).
The district court’s memorandum decision stated that “the Court cannot find that Paragraph Four of the testator’s will clearly and unambiguously demonstrates an intent to burden the corpus of the estate with payment of inheritance taxes.”
The district court stated further: “In reviewing the will as a whole, in a common sense approach, there is simply no showing that the testator intended for his blood relatives to assume the tax burden engendered by joint tenancy property held by relatives of his pre-deceased wife.”
As was accurately stated by counsel at oral argument, the language of the instrument in this case concerning the payment of the taxes is somewhere between the clear statements in Cline and Pickrell, and the fatally fuzzy formulation in Wendland.
Although we acknowledge the precedent and cogent arguments presented by the Cukjatis and the dissent, we concur with the trial court.
A provision for paying “all federal estate and inheritance taxes of every kind and nature” from the residue of the estate is presumed to apply only to the property disposed of in the will, unless a wider meaning is clearly expressed, as it was in Cline and Pickrell. Only by such clear reference to nontestamentary property can the statutory apportionment be defeated.
Affirmed.
Marquardt, J., dissenting: I respectfully dissent from the majority’s holding.
A specific direction to pay inheritance taxes out of the estate is generally sufficient to defeat the statutory apportionment. See, e.g., In re Estate of Wheeler, 65 Ill. App. 2d 201, 213 N.E.2d 35 (1965). In Wheeler, 65 Ill. App. 2d at 203, the will provided that the executor should pay from the principal of the estate “ ‘all estate, inheritance, transfer and succession taxes.’ ” The issue was whether the estate should pay the inheritance tax on an inter vivos trust. The court held that the language of the will was sufficient to require the executor to pay the inheritance tax out of the estate even though the trust was not an asset of the probate estate and the will did not specifically refer to the trust. 65 Ill. App. 2d at 206.
When confronted with facts similar to the instant action, a New York court has held that the language “I direct that all inheritance, estate, transfer and succession taxes be paid out of my residuary estate” clearly expressed the intention that taxes upon two joint bank accounts were to be paid by the executor out of the estate. Matter of Halle, 270 App. Div. 619, 621, 61 N.Y.S.2d 694 (1946).
Absent an ambiguity, the court must “ascertain the testator’s intent from the four comers of the will and . . . carry out that intent if possible and not contrary to law or public policy.” In re Estate of Cline, 258 Kan. 196, 205, 898 P.2d 643 (1995). A court should not rewrite an unambiguous will in accordance with the court’s notions of what is a fairer distribution of the tax burden. See Central Trust Co. v. Burrow, 144 Kan. 79, 81, 58 P.2d 469 (1936).
The mle of construction in favor of the testator’s heirs has been relied on in cases determining whether the statutory allocation of the tax burden has been altered by the will. See Wendland v. Washburn University, 8 Kan. App. 2d 778, 780, 667 P.2d 915 (1983); Weiss v. Grant, 87 Colo. 144, 147, 286 Pac. 114 (1930). Rules of construction, however, should not be applied where the language of the will is not ambiguous. See Cline, 258 Kan. at 199, 205.
The testator’s will specifies that “inheritance taxes of every kind and nature, shall be paid from the residue of my estate.” Failure to identify the nontestamentaiy property passing outside the will does not prevent language such as “all inheritance taxes” or “inheritance taxes of every kind and nature” from including the non- testamentary property. See Starr v. Watrous, 116 Conn. 448, 453, 165 A. 459 (1933); Wheeler, 65 Ill. App. 2d at 206. Directing that “all inheritance taxes” or “inheritance taxes of every kind and nature” be paid from the residue of the estate is sufficient to defeat statutory apportionment. See, e.g., Wendland, 8 Kan. App. 2d at 781; Starr, 116 .Conn, at 452-54; Halle, 270 App. Div. at 621-22.
In Kansas, a direction to pay “all federal estate and inheritance taxes of every kind and nature” out of the residue of the estate is clear and unambiguous and sufficient to shift the payment of inheritance taxes to the estate.
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The opinion of the court was delivered by
Johnston, C.’ J.;
The defendant was prosecuted for the violation of the cigarette law. There were three counts in the information — the first, for selling; the second, for having in possession for sale and distribution; and the third, for selling cigarette papers. He was found guilty on the second count, of having cigarettes and cigarette papers in his possession for sale and distribution. Motions for a new trial and in arrest of judgment were made and overruled. Defendant appeals.
The principal complaint is that the count of the information on which he was convicted was insufficient in that it omitted to describe the place of the offense, which it is claimed is an indispensable element of the offense. The pertinent part of the statute under which the charge was made provides:
“It shall be unlawful for any person, company or corporation to barter, sell or give away any cigarettes or cigarette papers, or any disguise or subterfuge of either of these, or to have any cigarettes or cigarette papers in or about any store or other place for barter, sale or free distribution. . The possession of such cigarette materials shall be considered prima facie, evidence of a direct violation of this act. (Laws 1917, ch. 166, § 1.) ■ jk
The charging part of the second count was, “that Carl gardner did on said day and date then and there unlawfulb^^^B wilfully have in his possession, for sale and distribution, cigarettes and cigarette papers.” Is the omission of an averment describing a particular place in which the inhibited articles were held or kept by the accused, for sale.and distribution, important or fatal? The essential element of the acts condemned is the selling of cigarettes or having them in possession for sale and distribution. The keeping of a place is not an essential ingredient against which the prohibition was directed. If the' keeping of a place where the prescribed articles were sold, or kept for sale or distribution, had been declared to be an offense, there would be ground for the contention made by defendant, but it is the sale or having them in possession for sale or distribution that is denounced. Such articles were formerly kept for sgle in what are generally called stores, and the legislature, to make the offense all-inclusive, declared that the having of them in possession not only in stores but in or about any store or other place was an offense. The having of them in possession for sale or distribution is the offense. The keeping of them in or outside of a store or any other place, whether in his residence, garage, or even if he went up and down the streets and peddled them from his pockets, would be a violation of the statute. From the nature of the offense and the language employed, it is manifest that the legislature did not regard the place as the essence of the offense. If the keeping of a place had been made an essential element it might be said that the term “or other place” following the word “store” meant a place of a similar kind, but an abatement of the place was not sought nor was it an essential'ingredient of the offense of which defendant was convicted.
In The State v. Oswald, 59 Kan. 508, 53 Pac. 525, an information charging the setting up and keeping of a gambling device was attacked because the place in which it was set up and kept was not alleged, and it was held that the keeping of a place was not an ingredient of the offense and therefore it was sufficient to charge that the offense had been committed in the county and state. Where a nuisance is charged, and an abatement follows conviction, a description of the place is necessary to charge that offense, but even in such cases it has been held that it was enough to charge and show that beer was kept in a barrel in an alley, for sale. (The State v. Dykes, 83 Kan. 250, 111 Pac. 179.)
Btln another case it was held that a nuisance might be maintained ^BPen ground and a description of the place as two lots of a cer tain block was sufficient. (The State v. Walters, 57 Kan. 702, 47 Pac. 839.)
In a later case it was held that an allegation that the nuisance was maintained on the streets and alleys of a city was sufficient. It was said that the offender could not escape the consequences of his act by taking a push cart loaded with intoxicating liquors and moving it about from one place to another while making sales, nor could he by making use of a house-boat which he moved up and down a river, in the city. It was decided that where the offense is ambulatory in character it may be described as broadly as the scope of the operations of the offender in committing it. (The State v. Rabinowitz, 85 Kan. 841, 118 Pac. 1040.) Here, however, the place not being one of the essentials of the offense the information was not bad because it did not describe the place or places in which the accused had the cigarettes and cigarette papers in his possession for sale and distribution. It was enough to allege that he had the inhibited articles in his possession in the county and state.
No error was committed in overruling the motion in arrest of judgment, and there being sufficient evidence to sustain the conviction the motion for a new trial was properly overruled.
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The opinion of the court was delivered by
DawsoN, J.:
This was’ an action to recover on a life insurance policy. The defense was nondelivery of the policy, and conspiracy on the part of the insured and the local insurance agent and the local medical examiner to defraud the insurance company.
On these issues the cause was tried. A general verdict and answers to special questions were returned in plaintiff’s favor; and defendant appeals from the judgment rendered thereon.
Defendant’s brief discusses many matters which were a fair subject of controversy in the trial court but which are all settled by the jury’s verdict. As in Upton v. Pendry, 110 Kan. 191, 203 Pac. 300, it may be here said: “This court is not trying this lawsuit; its jurisdiction is limited to a review of errors alleged to have been made by the district court which did try this lawsuit.” This disposes of most of the matters argued in the defendant’s behalf; it settles the question whether or not the policy had been delivered to the insured in his lifetime; settles the question whether there was a conspiracy to defraud the company; settles the question whether the insured made false statements on material matters in his application for insurance; and settles every disputed question of fact upon which there was any competent and substantial testimony. (Bruington v. Wagoner, 100 Kan. 439, 164 Pac. 1057.)
Among the matters complained of in defendant’s brief is one concerning the exclusion of some testimony touching the death of the insured’s father. In his application for insurance, the insured, William S. Hayslip, stated that his father had died of an accidental gunshot wound. The excluded evidence was designed to show that the father had committed suicide and that the insured was aware of that fact. In this case such evidence was immaterial. (Gen. Stat. 1915, § 5290.) The insured did not die of suicide. He died of dou ble pneumonia following an attack of influenza, during the “flu” epidemic in December, 1918.
In Newton v. Insurance Co., 95 Kan. 427, 148 Pac. 619, it was said:
“The withholding or misrepresentation of facts in an application for life insurance will not defeat the insurance policy unless those facts, thus withheld or misrepresented, pertain in some degree to the malady which occasions the death of the assured, following section 4200 of the General Statutes of 1909.” (Syl. H 1.)
Error is urged on the trial court’s rejection of “offers, of proof of current newspaper reports; current rumor concerning the suicide of Albert Hayslip” (insured’s father). This rejected evidence — if it could be characterized as such. — -was not brought on the record in support of the motion for a new trial, so neither its competency nor materiality can now be considered. (The State v. Ball, 110 Kan. 428, 432, 433, 204 Pac. 701.) Complaints touching other matters excluded are not reviewable for the same reason.
An attempt is made to base error on “voluntary prejudicial remarks and comments of the court” in certain given instances, and “also by way of facial expression, gestures, voice inflection and those numerous exhibitions which one unconsciously manifests when sympathies are enlisted on one side of a controversy.”
The record does not justify any such criticism of the trial court. In connection with its rulings and in explanation of them, as the trial progressed, the court did sometimes make remarks. For example, an officer of the defendant testified that in the course of his investigation of this claim for insurance'he called on Doctor Miers, who had served the defendant as local medical examiner and who is one of the parties alleged to have been in the conspiracy to defraud the defendant. There had been evidence tending to show that the insured had left his insurance policy in the custody of Doctor Miers. Defendant’s officer testified:
“He showed me the Hayslip policy of life insurance in the defendant company, insuring the life of Mr. Hayslip.
“A. He showed me the receipt that is usually given with — delivered to the agent to be delivered to the applicant, showing the payment of the first year’s premium, and also the note that Mr. Hayslip had given in payment of the life insurance premium.
“Q. State whether at that time he claimed to own this note — had cashed the note?
“[Counsel for plaintiff] We object to that as calling for the conclusion of the witness, incompetent, irrelevant and immaterial. We are not bound by anything that Dr. Miers may have said or done, no .foundation having been laid for this testimony.
“[Counsel for defendant] If this man was chosen as the agent for the purpose of holding these papers, and this office safe was selected as a depository for those papers, then any act that he did with reference to those particular papers so deposited would be binding upon the plaintiff. They have introduced evidence in this case to show that Robert McCracken held and retained this note at all times there in his wallet in his pocket or after the delivery of the policy in his files at his home until he brought it down to Salina and let it be paid off. Now, we have the right to show by this witness that the man who was chosen as the agent to hold these papers, stated whether or not he had bought that note from McCracken.
“By the Court: Wouldn’t the doctor have the right to advance money on this note if he wanted to take it up, or do anything he wanted to do with it?
“[Counsel for defendant] Your Honor-will understand me if I ask to have an exception taken to that question.
“By the Court: Sure.”
We discern neither prejudice nor impropriety in this instance. Others of like nature noted in the record have not been overlooked, but they disclose nothing which would justify discussion.
Fault is also found with the instructions given and refused. Those given fully and fairly covered the matters in issue, those refused were properly denied. Despite the lengthy abstract and brief presented by the defendant for our consideration, and notwithstanding the large sum involved in this lawsuit, the issues were simple and clearly defined, and a painstaking review thereof suggests nothing approaching reversible error and nothing worthy of discussion.
Affirmed.
BuRCi-i, J., not sitting. | [
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The opinion of the court was delivered by
Mason, J.:
The appeal is taken from the sustaining of a demurrer to the petition.
The petition contained this language; “Plaintiff alleges that he is the manager and owner of the Mayetta Indian Baseball Club of Mayetta, Kansas, and as such owner and manager he makes all contracts for them 'in his name, and for them, and is authorized to collect all monies due them for playing baseball, and that the defendant Lou Hauck holds a like position with the Valley Falls Baseball Club of Valley Falls, Kansas.” It also alleged these facts: The two entered into an oral agreement “that the said clubs should meet at the baseball park or grounds, at Valley Falls, Kansas, . . . and play a game of baseball according to the rules and regulations of professional baseball, and that the winner of the game should have 60 per cent of the gate receipts or paid admissions to said game, and the loser to have 40 per cent of said gate receipts-or paid admissions to said game, añd that in any event the plaintiff was guaranteed that he should receive not less than thirty-five dollars for the game so agreed to be played.” The game was played until the ninth inning, when, the score standing 5 to 4 in favor of the visiting team, the umpire called a base runner ' of the home team out, and was immediately compelled to leave the grounds in fear of bodily injury by reason of a demonstration for which an agent of the defendant was responsible. The defendant thereupon declared the game forfeited to his team. The gate receipts amounted to $300, which was paid to the defendant and remains in his hands. The plaintiff sues for the full sum of $180 as the winner’s share.
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 the courts will not lend their aid to its enforcement.
“In most jurisdictions statutes .making void all contracts or transactions based on a gambling or wagering consideration now exist. 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 df the age, and void as against public policy. For example, in some of the earlier decisions wagers on horse races have been regarded as indifferent wagers on indifferent matters, and therefore not obnoxious to the law. But a wager on a horse race is now very generally held to be void as contravening good morals and public policy. ...
“Whether or .not certain forms of betting or wagering are punishable as criminal offenses depends on the phraseology of the gaming statutes. But though a transaction may not be criminal it may none the less in the eyes of the law be gambling in the sense at least that comes within the condemnation of the civil law, the tendency of which, as has been seen, is to repudiate all wagers of every kind on any subject.” (12 R. C. L. 747, 748.)
“At common law, all betting or wagering contracts, which affected injuriously the interests, feelings, or character of third persons, or led to in-' decent evidence, or were contrary to public policy, or tended to immorality, or a breach of some law, were held to be void; and such is now the law. Formerly, in England, it was supposed that a great proportion of the wagering contracts were not subject to- any of said objections, and were therefore not void, but valid. Such is not the^case in this country, and at the present day. Now, as a rule, all betting or wagering contracts are considered as inconsistent with the interests of society, at variance with the/laws of morality, against public policy, and therefore void.” (Cleveland v. Wolff, 7 Kan. 184, 187.)
It is argued in behalf of the plaintiff that the case falls within the rule that competing for a premium offered by others than the competitors is not a betting transaction, but we think the argument unsound. The law on that subject has been thus stated:
“A prize, purse, or premium offered to the successful player in a game or competitor in a contest by persons other than such players or competitors is not a bet or wager. Thus, unless prohibited by statute, racing for a purse, prize, or premium offered by racing or other associations is not gaming. The fact that each player or competitor is required to pay an entrance fee does not make the transaction a bet or a gaming transaction. But when the stake is contributed by the participants alone, and the successful contestant is to have the fund thus created, this does constitute a bet' or wager.” (27 C. J. 1003.)
Here no prize was offered by a third person. No other person or- association arranged with the plaintiff and defendant to provide a ball game as a part of an exhibition including different features. The ball game was the whole thing and it was arranged by the parties hereto. The money that was competed for did, it is true, come from the pockets of those who paid admission fees. But they had nothing to do with the arrangement or management of the affair. They did not offer a prize for the winner of the contest. They merely paid forty cents apiece for the privilege of seeing the game — to be entertained. The gate money belonged (apart from the agreement to divide it in accordance with the result of the game) to the plaintiff and the defendant. They might have made a valid contract for its division in any proportion they saw fit, not dependent upon the result of the game. It was their property and not that of some one else. It had no other claimant after it left the hands of those who paid for their admission. The petition does not allege that the players had any interest in it or were to receive any part of it. If from the allegation that the owners were authorized to make all contracts for the clubs and collect all monies due them, an inference is to be drawn that the gate money was to be divided arpong them, that would not render the transaction an offer of a prize by one not a party to the contest. Their áttitude would be no different from that of their respective owners, who in their oym behalf or as representatives of the players were the “competitors” in the same sense in which that term is applied to those entering horses in a race. If the players are to be regarded as competing for a prize it consisted of money already belonging to them and staked by them on the result of the game. In one of the cases applying the premium rule it was said:
“If two or more men. owning trotting horses should contribute equally or otherwise a sum of money, and put it into the hands of some other person for the purpose of offering it as a premium or reward to them only, and to the owner of the horse who should win the race, such a transaction would undoubtedly come within the rule which prohibits betting on a horse or other race; and it was so held in the case of Gibbons v. Gouverneur, supra. (1 Denio, 170.) Where there is no claim that the competitors are the sole contributors to the premium or purse which is offered to them as competitors, we are unable to find any decided case which holds that the competing for such purse or premium is illegal or prohibited.” (Porter v. Day and others, 71 Wig. 296, 300.)
It might be suggested that the enterprise was organized and conducted by the defendant; that the proceeds were his and that he offered the larger share in them to the winner as an inducement to the plaintiff to compete. We do not regard the language of the petition as open to that construction. The guaranty that the plaintiff, being the owner of the visiting team and subject to certain expenses on that account, should receive at least $35, does not imply that the defendant alone was- the proprietor of the exhibition. But if that were the fact it is at least doubtful whether the situation would be so changed as to make the plaintiff’s claim enforceable. The money risked on the result of the game would still be that of a participant and not of a third person. In order that a transaction should amount to a bet it has been held not to be necessary that both parties should risk a loss — it being enough that one does. (Lang v. Merwin, 99 Maine, 486.)
While the analogy is not close, such a situation would have something in common with that presented where billiards or pool is played with the understanding that the loser shall pay for the use of the table. By the weight of authority such an agreement is regarded as involving a bet upon the result of the game. (Note, 121 A. S. R. 695.)
The conclusion we have reached renders it unnecessary to pass upon other objections which are made to the validity of the contract.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The defendants appeal from an order overruling their motion for a new trial.
The plaintiff held a mortgage on personal property consisting of machinery and tools used in drilling oil wells. The action, which was begun October 20, 1920, was in replevin to recover the property, and alleged a special interest in the plaintiff as mortgagee. The defendants gave a redelivery bond and retained possession. The answer was a general denial. The case was not reached at the January, 1921, term, and was set down a second time for trial on April 7. At that time attorneys for defendants appeared in court, and at their request the case was passed and set down for April 11, when it was regularly called for trial. No one appeared for defendants. A jury was impanelled, plaintiff introduced its evidence and there was a verdict in its favor for $8,812.32, upon which the court rendered judgment. Within three days the defendants filed a motion for a new trial, alleging abuse of the court’s discretion, misconduct -of the plaintiff, accident and surprise which ordinary prudence could not have guarded against; and alleged that defendants had a good and valid defense to the action and would have presented it at the trial but were prevented by accident and surprise, in that their attorneys employed to represent them withdrew from the case and defendants did not discover this fact until a few hours before the case was called for trial.
Another ground stated in the motion was that the verdict was contrary to the evidence, as there was no proof of a demand prior to bringing the action.
Upon the hearing of the motion, affidavits of certain officers of the defendant companies were introduced, among them that of the treasurer of the Liberty Refining Company, to the effect that on April 12 he was in Tulsa, Okla., and received a long-distance telephone message from the field superintendent of the company, which was the first intimation he had of the intention of counsel to withdraw from the case; that he had frequently consulted with the attorneys; and that the company was not informed by their attorneys of their intention to withdraw, in time to employ other counsel. In this affidavit it was stated that defendant was at all times prepared to defend the action and had a complete, just, true and legal defense to the entire claim.
The affidavit of the secretary of the same company showed that on April 12 he received a telephone message from Thomas H. Lewis, whom he describes as “former president” of the Liberty-Texas Refining Company, in which Lewis said he was in receipt of a telegram from the attorney stating that he had withdrawn from the case. The secretary testified that he immediately wired the field superintendent instructing him to employ counsel and appear in court and represent the defendants, and that prior to the information he received he, personally, had never had any communication from the attorney to the effect that the case was to be called for trial, and that he was taken by complete surprise when he first learned of the withdrawal of the attorney.
It appears that new attorneys were employed who appeared in court a few hours after the judgment had been rendered.
The plaintiff presented the affidavits of its attorneys stating the history of the litigation and the various assignments of the case for trial, and the fact that it had been passed over at the request of defendants’ attorneys from April 7 to April 11. The affidavits also set forth at length copies of correspondence had with the former attorneys for defendants requesting them to furnish an affidavit showing their excuse for their failure to appear. No affidavits were furnished by the former attorneys, but copies of their letters to the plaintiff’s attorneys show that they had withdrawn from the ease for the failure of the defendants to pay attorneys’ fees, and that they had notified Thomas H. Lewis, president of the Liberty-Texas Refining Company of that fact -before the case was actually tried, and had written him two months before April 11, threatening to withdraw unless their fees were paid.
The motion for a new trial appears to be based upon the provisions of section 305 of the code, and the ground relied upon falls within the claim of “accident or surprise which ordinary prudence could not have guarded against, or for any other cause whereby the party was not afforded a reasonable opportunity to present his evidence and be heard on the merits of the case.”
Some abuse of discretion must appear in order to justify a reversal of the ruling. We think none is shown. This is especially true in view of the fact that defendants, while alleging that they had a just and meritorious defense to the action, failed to set forth any facts upon which their claimed defense is based. It devolved upon defendants not only to show they were within the provisions of the statute, that is, they were the victims of accident or surprise which ordinary prudence could not have guarded against, or for some other cause they were not “afforded a- reasonable opportunity to present their evidence and be heard on the merits of the case,” but they should show a meritorious defense. If there were no merits to the case; if the mortgage was valid, the debt due and unpaid, the plaintiff would be entitled to maintain the action to recover possession of the property because of his special interest. The mere statement in the motion and in the affidavits to the effect that the defendants had a good and valid defense to the action amounted to a mere conclusion of law. It gave the court no facts upon which to exercise discretion in determining whether defendants should have a new trial. The same rule that obtains where a separate action is brought to set aside a judgment by default applies here. In such cases it has been held that the court may properly overrule the motion, unless it appears not only that the default is excusable but that the defendants have a meritorious defense to the action.
In McPherson v. Kingsbaker, 22 Kan. 646, it was said:
“Now, before a party against whom a judgment is rendered'by default can have that judgment set aside, and be let in to answer, the court must be advised of the defense which is to be presented, and assured by affidavit or other testimony, that such defense is at least believed to be true. Otherwise the defendant might delay and put the plaintiff to costs without any just defense to his claim. And the absence of counsel for defendant at the time of trial, or any other accident, might be productive of great benefit to defendant.” (p. 648.)
In Mulvaney v. Lovejoy, 37 Kan. 305, which was a separate proceeding to vacate a judgment against a defendant on the ground that his attorney had abandoned the cause without notifying him, and wholly neglected to appear and present his defense, it was said in the opinion:
“Judgments will not be set aside merely to allow a defendant to make a technical objection or an ineffectual defense. The provisions of the code under which this action 'is brought were enacted in furtherance of justice, and to relieve parties from unjust judgments that were obtained through no fault of their own. If the defendant has no valid defense, and the result of a second trial must be the same as the first, no actual injustice has been done, and it would be idle to disturb the judgment. The facts constituting the defense should be fully stated, and from them it must appear that the defendant has an existing legal and meritorious defense.” (p. 308.)
In State v. Soffietti, 90 Kan. 742, 136 Pac. 260, an application for a new trial was presented after the term at which the judgment was entered. Following the Mulvaney case, it was held that the application was defective for not showing that the plaintiff had a valid and meritorious defense to the action.'
(See, also, annotation, “Right to open default as affected by character of defense,” L. R. A. 1916 F. 839, 861.)
The motion having been filed within three days after the rendering of the judgment, it is urged that any errors of law are available to the defendants; and in this connection it is claimed that the judgment should be set aside because there was no proof of a demand upon the Liberty Refining Company for the return of the property. The abstract shows that a demand was made on the Liberty-Texas Oil Company prior to the beginning of the action, and a refusal to surrender possession. The petition alleged possession by the defendants generally, without specifying that any particular part of the property was in the possession of either defendant alone. The plaintiff insists that the possession being joint, it required the consent of both defendants before either could make a delivery. However that may be, it has been held that a refusal to deliver- possession by the giving of a redelivery bond, and contesting the action, amount to a waiver of a demand. In Hutchings v. Cobble, 30 Okla. 158, it was held under these circumstances a writ amounted to a demand, and defending of the suit was a refusal to deliver. Moreover, it has been held that the question of demand could affect nothing more than the question of costs. In Beal v. Speer, 106 Kan. 690,189 Pac. 938, it was said: “The question of demand could in any event affect only the question of costs, for, of course, the property would not be returned for want of it, and its omission could hardly be regarded as material here.” (p. 692.)
The defendants saw fit to refuse to surrender the property and to give a redelivery bond; they filed an answer which denied the plaintiff’s right to recover under the petition. It is apparent that a demand would have been useless. The subsequent conduct of the' defendant, shows that it would not have complied with the demand. Besides, there was evidence of a demand on one of the defendants.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Buech, J.:
The action was one for damages for personal injuries sustained by an automobile driver on a public street, when his automobile went into an excavation between the rails of the defendant’s track. The plaintiff recovered, and the defendant appeals.
The petition, the instructions to the jury, and the special findings and general verdict of the jury, are brought up, and the complaint is, the special findings are inconsistent with the general verdict.
The petition described the excavation, alleged that, at the close of the day on December 19, 1918, it was left unguarded by lights or barricades, and continued as follows:
“That, at about the hour of 7:30 o’clock p. m. of said day, the appellee, while driving his automobile in a westerly direction along the north or right-hand side of said Main street, came up behind a horse-drawn vehicle and, in passing around said vehicle, appellee turned to the left and drove over said obstruction and into said excavation, without any warning or knowledge thereof; that he was an experienced driver of automobiles; that his headlights were lit, and he was driving not to exceed twelve miles per hour, and was in perfect control of his car; that, because of the darkness and the sharpness of the turn necessary in passing the horse-drawn vehicle, it was impossible for him to see or be aware of said excavation until his car was lodged therein.”
The answer charged contributory negligence,. in driving without lights and at an unlawful rate of speed. Two instructions read as follows:
“9. To entitle plaintiff to a recovery in this -action, he must show you by the evidence that the injury complained of was occasioned by the carelessness and negligence of the defendant as alleged and set up in the petition, and was not the result of an accident that could not have been foreseen and guarded against by the exercise of ordinary and usual care and prudence on the part of the defendant.
“10. An accident is an inevitable casualty, or the act of Providence, or such unforeseen events, misfortunes, losses, acts or omissions as are not the result of carelessness, negligence, or misconduct of the party.”
The special findings follows:
“Q. 1. Was the plaintiff, at the time and immediately before he alleges he ran into the obstruction, driving his car without headlights? A. No.
“Q. 2. Immediately before the plaintiff ran into the obstruction as alleged in his petition, at what rate of speed was he driving his automobile? A. About ten miles. *
“Q. 3. Was the dirt and other material from the excavation between the rails piled a foot and a half to two feet high on each side of the track? A. Yes.
“Q. 4. On the night plaintiff alleges he was injured, was there an electric street light burning at or near the place of the accident? A. Yes.
“Q. 5. If you answer the last question ‘yes,’ did the street light light up the street where the obstruction was so that the obstruction could be seen by the driver of an automobile, if he was exercising ordinary care? A. No.
“Q. 6. Was the plaintiff, at the time and just before he alleges he was injured, looking in the direction in which he was driving? A. Yes.
“Q. 7. If you answer the last question ‘yes,’ what prevented him from seeing the obstruction? A. The obstruction not lighted with danger signal.
“Q. 8. Were the plaintiff’s injuries, if you find that he sustained any, the result of an accident? A. Yes.
“Q. 9. Could the plaintiff, by the exercise of ordinary care on his own part, have prevented the accident? A. No.”
The argument is that the jury was bound by the definition of the word accident contained in the instructions. It must be assumed the jury understood the word, as used in question 8, as having the meaning given it by the instructions. Therefore, the jury found the defendant liable by its general verdict, and found the defendant not liable by the answer to question 8. The court is of opinion that, under the definition of the word accident, and the application of the definition, in the instructions, finding 8 was correct, and was consistent with the general verdict.
In the case of Gilliland v. Cement Co., 104 Kan. 771, 180 Pac. 793, the court was called on to consider the meaning of the word accident as contained in the workmen’s compensation act, and so to consider'the meaning of the word generally. In the opinion it was said:
“The word accident does not have a settled legal signification. It does have, however; a generally accepted meaning, which is the same whether considered- according to the popular understanding or the approved usage of language. An accident is simply an undesigned, sudden, and unexpected event, usually - of an afflictive or unfortunate character, and often accompanied by a manifestation of force. The word undesigned must not be taken too liter ally in this connection, because a person may suffer injury accidental to him, under circumstances which include the design of another. The same warning maybe extended regarding other elements of the definition; but as definitions go, the one here proposed is correct, at least for present purposes.” (p. 773,)
It may be added that the word is popularly and properly used in its true etymological sense of that which falls to or happens, without implication of more than just the event; as, for example, “The accident occurred at seven o’clock in the evening.” In two instructions to the jury other than those quoted, the district court used the word in this sense, and whoever prepared the special questions did so in questions 4 and 9.
For the purposes of this case, the matter of what may be designated an accident was reduced to a certainty by instruction 10. It will be observed the instruction closes with the words, “the party.” There were two parties to the case, the plaintiff and the defendant, and so, in determining whether or not the occurrence was accidental, it was proper to distinguish between the parties. The distinction was made in instruction 9. The jury was told that, to entitle the plaintiff to recover, the injury must have been occasioned by negligence and not by accident, on the side of the defendant. The plaintiff was charged with contributory negligence, and all the special findings relate to him: Was he driving without headlights; was he driving too fast; was the excavated material piled up so high on each side of the Track, and did the street light so illuminate the place, that he ought to have seen the obstruction; was he looking; what prevented him from seeing; and then, was it an accident that caused his injury? The implied alternative was, or was it negligence on his part? The jury said it was an accident. The jury must be credited with intelligence, not stupidity. It was warranted in assuming the questions were consistent with each other, and that No. 8, like those which preceded it, referred to the plaintiff, and not, by sudden jump to the other side of the case, to the defendant. So understanding it, the jury answered it consistently with the instructions, with the other findings, and with the general verdict.
The defendant says the plaintiff was required to have lights sufficient to enable him to see objects ahead of him, and to have his car under such control that he could stop in time to avoid obstructions revealed by whatever lights he had; and consequently, he must have been guilty of contributory negligence, as a matter of law. The court properly instructed the jury the plaintiff could assume the street was reasonably safe for travel. He was not obliged to anticipate that, in turning aside to pass a vehicle in front of him, he would land in an unguarded excavation. From the description of the accident contained in the petition, he fell into the excavation immediately, upon turning his lights toward it, and it must be assumed there, was sufficient evidence to sustain finding No. 9.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
MaRshall, J.:
In this action, the plaintiff seeks to recover the purchase price of void or “spurious” stock illegally issued by a corporation. Special findings of fact were made as follows:
“First. Prior to the 16th day of September, 1918, the Railroad Men’s Refining Company was a Kansas corporation and the amount of its authorized capital stock was $50,000.00.
“Second. Prior to the 16th day of September, 1918, such corporation had issued certificates of stock for the entire amount of its capitalization, to wit, $50,000.00.
“Third. After,the full amount of the original authorized stock, to wit, $50,000.00, had been issued, the corporation passed a resolution to increase its capital stock and made application for such increase, and before said application was acted upon, proceeded to and did issue stock in excess of the authorized capital to the amount of between $14,000.00 and $19,000.00, which was thereafter by those connected with said corporation called ‘spurious stock.’ This stock was illegally issued and is void stock. One of the certificates of this spurious stock was issued on September 16, 1918, and delivered to one Frank Schmitz, purporting to be for fifty shares of the par value of $10.00 each of the capital stock of such corporation. Said application for authority to increase the capital stock was refused.
“Fourth. Thereafter the Railroad Men’s Refining Company sold the entire property and assets of the Company to the defendant, C. V. Van Matre, for the sum of $2,500.00 in money, and the further consideration that said C. V. Van Matre would pay the outstanding debts and obligations then owing by the Company and should hold the Railroad Men’s Refining Company harmless by reason of what the parties to the contract termed ‘spurious stock.’
“Fifth. It was within the contemplation of the Company and the said Van Matre that the certificate referred to in plaintiff’s petition should be considered ‘spurious stock.’
“Sixth. The certificate in question was transferred by Frank Schmitz to one Victor Clark, by said Schmitz signing a blank assignment on the back of said, certificate and delivering the same to said Clark. Clark in turn transferred the certificate as collateral security, to plaintiff, for a note of $2,000.00, on February 21, 1919, and as part of said transaction delivered said certificate so assigned to plaintiff. The note held by plaintiff for which said certificate was given as collateral security, has never been paid. The plaintiff has made no sale of said stock so held by it as collateral security.
“Seventh. There is no evidence to establish what amount, if anything, Frank Schmitz paid to the Company for said stock, and there is no evidence in the Record to show what Victor Clark paid Schmitz therefor. There is no evidence to show the market price of the genuine stock of said Corporation as of September 16," 1918, but the market value of genuine stock on February 21, 1919, when plaintiff took the stock as collateral, was not to'exceed One Dollar per share of the par value of $10.00.
"Eighth. After the contract was entered into between the Corporation and the defendant on July 7, 1919, said Corporation delivered to the defendant the property which he was to receive under and by the terms of said contract.
"Ninth. At the time plaintiff made the loan to Victor Clark and at the time it took the certificate in question as collateral security for the note for $2,000.00, it had no knowledge of the fact that said stock was spurious stock or illegal stock, but took the same as such collateral believing it to be genuine stock of said Company.”
On these findings, the court made the following conclusion of law:
“The court is of the opinion that the true measure of plaintiff’s recovery would be the amount paid by Schmitz to the corporation for the stock, but that, in the absence of any proof as to what this was, it is then limited to the par value of real stock at the time it took same as collateral, it being presumed that such was received by the bank as collateral to the extent, and upon basis, of such value. Plaintiff is therefore entitled to recover from the defendant the sum of Fifty Dollars and six per cent interest thereon from February 21, 1919.”
Each side moved for judgment on the findings. Both motions were denied. Judgment was rendered in favor of the plaintiff for $50 with interest thereon from February 21, 1919, at six per cent. The plaintiff appeals.
Only one question is argued, and that is that the court applied the wrong rule in measuring the plaintiff’s damages. The rule stated by the court to be the true measure of the plaintiff’s recovery was the correct one, but there was no evidence to which that rule could have been applied. The plaintiff contends that in the absence of evidence, the presumption is that the plaintiff was damaged in an amount equal to the par value of the stock. With this contention, the court cannot agree. Shares of stock in corporations are known to be of such variable value that no presumption concerning value can be applied. There is just as much of a presumption that shares of stock are worthless as there is that they have any value. The plaintiff could not recover until it had proved what had been paid for the stock or had proved its value. The only rule for measuring the plaintiff's damages that could have been applied by the court under the evidence was the one that was followed. The court, therefore, did not commit error.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
Olivia E. Peugh died holding two life insurance policies in the Prudential Insurance Company of America, for the benefit of her sister, Bertha C. Galloway, who brought this action for their collection. The company defended on the ground that material misrepresentations had been fraudulently made by the insured in her application. A verdict was returned in favor of the plaintiff, on which judgment was rendered, and the defendant appeals.
1. The policies contained the clause that “all statements made by the insured shall in the absence of fraud be deemed representations and not warranties” and the defendant concedes that in order for misrepresentations to defeat the plaintiff’s claim they must have been fraudulently made. To the question in the printed application blank — “Have you ever had uterine or ovarian disease?” the answer of the insured was “No.” This is the representation chiefly relied upon by the defendant as having been wilfully false. Its principal contention is that the evidence conclusively showed that the insured at the time had a uterine disease, knew of the fact, and by stating the contrary made an intentionally false representation.
The application was made June 14, 1920. In January of that year a doctor examined her primarily for influenza and gave her treatment at various times extending from January 6 to’ May 25. She complained of a pain in the right side and low down in the back in the lumbar region. The doctor described her condition thus: “I found the uterus to be misplaced, backward. It was fixed in the second degree, retrodisplacement. I found the uterus slightly to the left of the mid line, and to the right of the tubo-ovarian region I found resistance and tenderness. The tenderness above’ described might be attributed to an ovarian condition, a tubal condition, or to some other condition due to the displacement of the uterus or possibly some inflammatory condition in the neighboring structures.” He acquainted her with these findings and advised “that she place herself under the care of her home physician as her condition might require an operative procedure to cure her.” An osteopathic physician examined and treated her at about the same time — “in the late winter of 1920.” He testified that she came to him for an examination, primarily for an extremely nervous condition following an attack of the influenza, and marked constipation; that he “discovered a retroflexed uterus, also lying slightly to the left with an enlarged and hardened fundus, also tenderness along the course of 'the right tube extending to the ovary,” gave her treatment for this condition, and “found it necessary to raise the uterus and get it back in position and support it with lamb’s wool tampons;” and that she seemed to have a full knbwledge of her condition. She died November 16, 1920, following an operation, the cause of death being thus given in the attending physician’s statement: “Inanition following foecal fistulse which in turn resulted from peritonitis as result of breaking up adhesions between retroflexed uterus and intestine, removal right ovarian tumor and fibroid on posterior wall of uterus.” The purpose of the operation was to correct the misplacement of the uterus, the existence of which she stated to the doctor. He testified that the foecal fistulse were “caused by breaking up the adhesions that existed between the uterus and the bowels, in which the intestines were injured, making a leak finally that broke through. These adhesions were brought about by a small fibroid that existed in the uterus; I think that is what caused the adhesions. I do not think it would be possible for the adhesions to be caused by a retroflexed uterus against the intestines.”
It is clear that at the time of her application the insured had a retroflexed uterus and knew of it, but the matter to be determined is whether the evidence compelled the conclusion that her trouble was a uterine disease and that she knew it was a uterine disease, within the meaning of the word as used in the application. The formal definitions of the word disease, found in the general and technical lexicons, seem broad enough to include a dislocated joint or a severed artery. That of Webster’s International Dictionary is “An alteration in the state of body or of some of its organs, interrupting ’or disturbing the performance of the vital functions, or a particular instance or case of this.” That of Appleton’s Medical Dictionary is, “Any departure from, failure in, or perversion of normal physiological action in the material constitution or functional integrity of the living organism.” The trial court was not asked to define the word and did not do so. A retroflexed or backward bent uterus would not seem to be a disease any more than a hernia is. The defendant’s examining physician, however, testified that he would classify a retroflexed uterus as a disease if symptoms had developed from it, meaning by symptoms “something that would cause the patient some trouble” — “that would attract her attention to the condition.” On the other hand, two doctors called by the plaintiff said that a woman would not necessarily have an ovarian or uterine disease if she had “a reflexed uterus lying slightly to' the left, with an enlarged and hardened fundus, and tenderness along the right tube.” There being conflicting evidence on the subject, the question whether the insured had a disease was one properly to be submitted to and determined by the jury.
2. The really vital issue, however, is whether the insured was conclusively proved to have known that her condition amounted to a disease in the sense in which the word was used in the application. Assuming that a retroflexed uterus which produces symptoms is properly described as a disease and is so classified by doctors, it does not at all follow that the insured knew of that usage or understood that the expression was employed in that sense in the question asked her. Whatever the word may mean when u§ed with technical accuracy, to the lay mind it suggests something different from a displaced organ, and 'the distinction based upon the presence or absence of symptoms, however sound it may be, is one the knowledge of which is not necessarily to be imputed to those unlearned in medical terminology.
3. The question in the application, “On what dates and for what complaints have you been attended by a physician during the past three years?” was answered, “Dr. Watkins (the first doctor she consulted), Farmington, Mo. Influenza, Jan. 1920.” The defendant urges that in omitting to name the osteopath, whom she consulted at about the same time, and in omitting to refer to the re-troflexion of the uterus, the insured necessarily practiced fraud upon the company. The question did not, in terms at least, call for the number of doctors by whom she had been attended, or their names, although the instructions gave a version of it which did, and which is repeated in the briefs. It called only for the dates and complaints. The services of the two doctors were rendered practically at the sarnie time, and it is readily conceivable that she saw no occasion for naming both of them. The month named — January, 1920 — was that in which Dr. Watkins’ treatments were begun, and in which six of them were given; he gave daily treatments from January 30 to February 3, inclusive, and treatments on February 13, May 12 and May 25. The claim made by the defendant in this connection and in others that in order to exercise good faith she was bound to make a full disclosure of all facts, even to the extent of volunteering information, is untenable. The medical questionnaire contained fifteen inquiries, several of them subdivided and one of them having thirty-three subdivisions. Fraud cannot be attributed to an applicant for supposing that it was only necessary to answer the questions asked. The omission to refer to the displacement of the uterus is not necessarily inconsistent with good faith. The evidence was that the two doctors referred to were consulted primarily for influenza, or for a condition following influenza, and a physician testified that after an attack of “flu” a condition was frequently left like that described as “a retrofiexed uterus lying slightly to the left, with an enlarged and hardened fundus, and tenderness along the course of the right tube.” Moreover, it is possible, as the plaintiff suggests, that the insured understood the word “physician” to apply only to one in the general practice of medicine, conceiving an osteopath not to be covered by the term, on the theory that he treated only such troubles as displacements of various kinds, and these by manipulation. However erroneous such a conception may bé, it would not be inconsistent with good faith.
4. To the question, “Are you now in good health.?” the applicant answered “Yes,” and this is relied upon as conclusive proof of a fraudulent intent. She of course knew that in a sense she was not in good health — in perfect physical condition. But it is entirely possible that she regarded the retroflexion of the uterus and the attending symptoms as sequalse of the influenza, unpleasant and perhaps requiring even surgical treatment, but not of such character as to impair her general health or increase the risk, and that she understood “good health” to be so used as not to include matters of that sort. The phrase, while positive in form, is in a way a comparative term — it is not mathematically exact and leaves some latitude for opinion.
5. The jury were told that if the insured “returned untrue answers to material questions and knew at the time that they were untrue, the law implies an intention to deceive, but this implication can be rebutted, and if upon a consideration of all the evidence in the case you find that said answers were made in good faith, with no intention to deceive, then your verdict will be for the plaintiff.” The defendant complains of the language making the implication rebuttable, and insists that if a statement were made with the knowledge that it was untrue there should be no recovery by the plaintiff. Assuming that a knowingly false answer may sometimes be conclusive proof of fraud, we regard the instruction given as proper in this case. Although the jury believed that the statement of the applicant that she was in good health was to her knowledge literally untrue, they were justified in returning a verdict for the plaintiff if they found that she thought the defect in her physical condition was not important enough to require a qualification of her answer. An instruction was properly refused which made knowledge on the part of the insured that she had a uterine trouble equivalent to knowledge that she had a uterine, disease. Complaint is made of the following instruction as placing the whole emphasis upon good faith without defining it, and making no reference to the possibility of evasion, fraud or suppression of facts; we think, however, that it sufficiently defined the issue.
“You are instructed that the law does not require an absolutely literal interpretation, of the provisions in an application and policy of life insurance with respect to untruthful answers; and if you find that the said Olivia E. Peugh acted in good faith and honestly in making the answers set out above and had no purpose to conceal any fact which she would naturally suppose was contemplated by the questions, and that the answers were made without fraud or intention to deceive or suppress the facts, then such answers, even though not literally true, would not avoid the policies or defeat the liability of the defendant thereon. The test is the good faith of the deceased in making the answers she did.”
Complaint is also made of an instruction that a misrepresentation in the application would not be material unless the fact misrepresented actually contributed to 'the death of the insured. The statute provides that “No misrepresentation made in obtaining or securing a policy of insurance on the life or lives of any person or persons, citizens of this state, shall be deemed material or render the policy void unless the matter misrepresented shall have actually contributed to the contingency • or event on which the policy is to become due and payable.’’ (Gen. Stat. 1915, § 5290.) The defendant argues, however, that the applicant’s statement that she was in good health, and her omission to tell of her having been treated by the osteopath, related to matters of moral risk which could not in any event have contributed to her death and therefore were not within the operation of the statute. (Becker v. Surety Co., 105 Kan. 99, 181 Pac. 549.) These misrepresentations, assuming for the moment that they were such, fell within the scope of the statute. They bore upon her condition at the time and affected the physical risk. Their whole importance was based on the fact that the matter misrepresented — the state of her health when she mjade the application — did contribute to her death. If she had been killed by a stroke of lightning, for instance, these misrepresentations would under the statute have been immaterial.
The testimony already referred to, given by two medical witnesses, that the condition of the insured described by the osteopath did not necessarily constitute a disease was objected to in one in stance on the ground that the witness had shown no knowledge of the subject and in both instances because the hypothetical question did not include all the symptoms shown by the evidence. The witness to whose testimony the first objection was made had said he was a practicing physician and had been engaged in surgery for fourteen years, which was a sufficient qualification. The hypothetical question included all the conditions described by the osteopath, and it was proper to frame a question upon that testimony alone. Moreover, the evidence was admissible as tending to contradict that of the doctor who said he would class a retroflexed uterus as a disease if any symptoms accompanied it. The witness first referred to was asked by the defendant on cross-examination whether the addition of other symptoms testified to would indicate the existence of a uterine disease. The sustaining of an objection to the question is complained of, but as it was not shown what the answer would have been the ruling is unavailable on review. (Civ. Code, § 307.) The court ruled out of the deposition of the doctor first consulted by the insured a statement that he had told her there might have to be an operation, but no prejudice could have resulted, for, as already indicated, his testimony that was admitted showed he had told her that “her condition might require an operative procedure to cure her.” The court ruled out of the deposition referred to a statement that the witness doubted whether, at the time of his examination of the applicant, there would have been any other symptoms disclosing its existence if a tumor which was revealed by the operation had been then present, and an affirmative answer to the question “Would the removal of the right ovarian tumor and fibroid on posterior wall bear out the fact that the same was an existing condition which was responsible and evidenced by the resistance and tenderness by the right tubo region?” This ruling is complained of, but whether or not it was correct the evidence is not important enough to justify a reversal. A medical witness was asked whether, he would say the death was due to an ovarian or uterine disease, if it resulted from the causes stated in the death certificate already referred to, and answered that he would say the cause was fcecal fistulse. The question was objected to as not based on the facts shown to exist and the answer as not being responsive. Neither objection is well taken.
The jury found in answer to special questions that the insured at the tirrie of her application did not know that she had a uterine or ovarian disease and in fact did not have one, but that she knew she had a retroflexed uterus. For the reasons already stated, the first two findings were fair matters for the determination of the jury and the last was not inconsistent with the verdict.
The judgment is affirmed.
Bueoh, Maeshall, J. J., dissenting. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff seeks to compel the defendant to issue to the plaintiff a certificate for $20,000 with interest thereon against the bank guaranty fund. An alternative writ of mandamus has been issued, and a return thereto has been filed. Honorable Charles L. Hunt, of Concordia, was appointed commissioner to take the testimony and report to the court his findings of fact and conclusions of law. That report has been made. On the facts found by the commissioner, he concluded that a peremptory writ of mandamus should issue.
This litigation arises out of the failure of the Kansas State Bank of Salina. At the time of the transactions out of which this action grew, R. L. Hamilton was president and active managing officer of the Farmers & Merchants State Bank of Clafiin. H. J. Lefferdink was the cashier of the Kansas State Bank, and E. J. Guilbert was its president. Felix Broeker had been cashier of the latter bank. Lefr ferdink and Broeker were intimately associated with each other in business matters outside the bank. At the time of*these transactions, the Kansas State Bank was in a failing condition.
In the latter part of February, 1919, Broeker met Hamilton in Wichita and requested that the latter make a deposit for the plaintiff in the Kansas State Bank. A day or two after that, Guilbert met Hamilton in Hutchinson and solicited a deposit. After the conversation between Guilbert and Hamilton in Hutchinson, the former wrote the latter, February 25, 1919, and again solicited a deposit, and in the letter said, “We will also pay four per cent on certificates of deposit for six months, and in addition Mr. Lefferdink and myself will agree to add three per cent personally in order to build up a good strong reserve.” Nothing came of those solicitations at that time.
On March 10, 1919, Broeker, from Kansas City, Mo., in the presence of Lefferdink, called Hamilton over the long-distance telephone and solicited a deposit of $10,000 by the.plaintiff in the Kansas State Bank. That deposit was made, and a certificate of deposit was issued, dated March 12, 1919, payable in six months with interest at four per cent per annum, the rate fixed by the bank commissioner.
On March 19, 1919, Broeker, from Kansas City, Mo., in the presence of Lefferdink, again called Hamilton by telephone and solicited another deposit of $10,000. Hamilton agreed to make such deposit for three months. Under agreement, the Kansas State Bank issued a .draft for $10,000 on the plaintiff bank. That draft was paid, and the money was received by the Kansas State Bank, but no certificate of deposit was issued for the last $10,000. On the same day, and after Hamilton had agreed to make the last deposit, Broeker, from Kansas City, wrote Hamilton as follows: “In compliance with my agreement, I am enclosing herewith Mr. Lefferdink’s check, in the amount of $1,000, and wish to assure you that we appreciate your assistance at this time very much.” That check was one signed by the Bankers Land, Cattle & Development Company, and was received by Hamilton on March 20, 1919, but he did not cash it, nor attempt to cash it.
Among the findings of fact made by the commissioner are the following:
“9. There is no positive testimony from any witness that the plaintiS bank, or any of its officers, were promised anything in the way of extra interest, compensation or bonus for the making of these advancements, and both Mr.' Hamilton and Mr. Broeker deny that any such arrangements existed, but your commissioner believes, from all the circumstances, and therefore finds it to be a fact, that the funds were advanced on the promise of both Broeker and Lefferdink that the plaintiff, or its president, Mr. Hamilton, should receive some sum of mone3r, in at least the amount of $1,000.00, as bonus or extra interest, and that the one-thousand-dollar check referred to was drawn and transmitted to Mr. Hamilton in compliance with that agreement, but your commissioner is unable to determine from the evidence the exact terms'thereof. There is no evidence that the agreement required the Kansas State Bank to pay such extra compensation, and the bank did not pay or offer to pay it. Plaintiff would not have made this advancement except on the faith of such agreement, and except for the belief on the part of Mr. Hamilton that such advancements would be protected by the Bank Guaranty Law.
“10. There is no evidence that the proceeds of the second advancement of ten'thousand dollars were improperly or wrongfully passed to the credit of either Felix Broeker or the Bankers Land, Cattle & Development Company, and if the passing of such credits was wrongful, the plaintiff had no knowledge thereof.
“11. Neither the plaintiff bank, nor any of its officers, actually received any extra money or compensation for making the advancements or deposits or (of) twenty thousand dollars. The Kansas State Bank received the full benefit of that amount so advanced by the plaintiff bank. There is no evidence that had the one-thousand-dollar check been presented and paid the assets of the Kansas State Bank would have been decreased.”
The plaintiff cites Mortgage Trust Co. v. Bank Commissioner, 110 Kan. 786, 205 Pac. 610, where this court said:
“A deposit in a bank for which a certificate was issued bearing interest at the rate approved by the bank commissioner is not rendered invalid nor taken out of the protection of the state guaranty fund because it was solicited by a third party not the agent of the bank, and who to advance his own interest paid the depositor a bonus to procure the making of a deposit.” (Syl. ¶ 1.)
The difference between the present case and the case cited is that here Broeker had been cashier of the Kansas State Bank ahd Leffer-dink, who was present during the telephone conversation by Broeker, was cashier of that bank; in the case cited, the persons who solicited the deposit had no connection with the bank. In the present case, the plaintiff bank did not get the benefit of the $1,000 check; in the case cited, the mortgage company received the benefit of the money paid by those who solicited the deposit. The findings show that the Kansas State Bank received the benefit of each deposit of $10,000.
If there was a contract, the court does not know its terms nor who was to be benefited by it. There is nothing to show that either of the banks was to receive or pay anything under it.
If the claim of the plaintiff cannot be paid out of the guaranty fund, it is because of that part of section 601 of the General Statutes of 1915, which reads as follows:
“After the passage of this act any officer of any bank who shall pay interest on different terms or in excess of a rate (which rate shall be uniform within each county) that shall be approved by the bank commissioner from time to time, on any form of deposits or pays any interest on any savings deposit withdrawn before July 1, or January 1, next following the date of the deposit, or on any time certificate cashed before maturity, shall be deemed to be reckless and may be removed from office as provided by law, and such bank shall not be permitted to participate in the benefits of this act. . . . Any managing officer of any bank guaranteed under this act, or any person acting in its behalf or for its benefits, who shall hereafter pay or promise to pay any depositor, either directly or indirectly, any rate of interest on different terms or in excess of or in addition to the maximum rate of interest permitted by this act, or who shall, with intent to evade any of the provisions of this act, pledge the time certificate or other obligation of such bank as security for the personal obligation of himself or any other person, or who shall display any card or other advertising tending to convey the impression that the deposits of the bank are guaranteed by the state of Kansas, either directly or indirectly, shall disqualify the bank from further participation in the bank depositors’ guaranty fund, and forfeit its bonds or money deposited in lieu thereof, with the state treasurer for the benefit of such fund . . .”
It has not been shown that the prohibitions of this statute have been violated. There is nothing to take this case out of the rule declared in Mortgage Trust Co. v. Bank Commissioner, 110 Kan. 786, 205 Pac. 610. It follows that the peremptory writ of mandamus should be allowed.
The writ shall issue. | [
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The opinion of the court was delivered by
MasoN, J.:
Samuel C. Hawthorne was a' member of the Travelers Protective Association of America, a fraternal and beneficiary society incorporated in Missouri, his membership entitling him to certain payments in case of disability resulting from accident. On April 13, 1913, he was nailing wire netting to his porch, standing upon an upturned candy bucket, and holding an additional fence staple in his mouth. His foot went through the bucket and the staple disappeared. His first thought was that it had gone down- his throat, but physicians whom he consulted assured him this was not the case. Nearly two years later an X-ray examination disclosed that the staple was embedded in his bronchial tube. It was removed by an operation early in April, 1915. He at once made a claim against the society on the ground that he had suffered disability •from the effects of the staple ever since it was lodged in his throat. The society denied liability, and on April 23, 1920, he brought this action against it. He recovered a judgment and the defendant appeals.
1. By an amendment made May 28, 1920, a copy of the plaintiff’s certificate of membership was attached to the petition. The defendant asserts that its demurrer to the amended petition should have been sustained because of the failure to attach such a copy to the original pleading. The question so presented requires to be decided, notwithstanding the amendment, because there is a contention that between the bringing of the action and the making of the amendment the statute of limitations had run. It has been doubted (Sturgeon v. Insurance Co., ante, p. 206, 210 Pac. 342) whether an insurance policy is an evidence of indebtedness within the meaning of the statute requiring that “If the action, ... be founded on account or on a note, bill, or other written instrument, as evidence of indebtedness, a copy thereof must be attached to and filed with the .pleading.” (Civ. Code, § 120.) Assuming that the provi sion applies to such a certificate of membership as that here involved, the defect resulting from a failure to comply with it could not be reached by a demurrer to the petition, which, by saying that the certificate defined an accident and fixed the amount of payments for total and partial disability, showed enough of its effect so that a cause of action was stated. “No such question can be raised . . . on demurrer” (Andrews v. Alcorn, 13 Kan. 351, syl. ¶ 1), or otherwise than by motion. (Bunes v. Simpson, 9 Kan. 658.) although there are some decisions to the contrary. (The Peoria Marine & Fire Insurance Co. v. Walser, 22 Ind. 73; Acme Mfg. Co. v. Reed, 181 Pa. St. 382; see, also, Shawmut Mutual Fire Insurance Co. v. Stevens, 91 Mass. 332; but on the other hand see State v. S. A. L. Railway, 56 Fla. 670; Riley v. Royal Arcanum et al., 140 Ga. 178; Kraver v. City of Henderson, 155 Ky. 633; The Hann. & St. Jo. R. R. Co. v. Knudson, 62 Mo. 569; Rogers Milling Co. v. Goff, Gamble & Wright Co., 46 Okla. 339.) Moreover, the defect in this case was purely technical. The petition referred to the certificate in this language: “A copy of which policy or certificate of membership is filed herewith marked Exhibit ‘A’.” While the statute literally calls for a physical attachment, the legislative purpose is substantially fulfilled by the copy being filed with the petition, and this manner of pleading by reference to an unattached document is not open to objection by demurrer.
The certificate recited that it, together with the constitution, bylaws and articles of incorporation of the society, and the application for membership, should constitute th§ agreement and govern the payment of benefits. The defendant urges that the demurrer should have been sustained because of the omission to attach any of these documents. If the statute in question covers all documents affecting the validity of the claim sued on, still the failure to attach them does not justify sustaining a demurrer to a petition which states facts sufficient to constitute a cause of action. Nor did such failure call for the rejection of the constitution and by-laws when offered in evidence by the plaintiff, on the ground that they had not been pleaded.
The original petition having been, sufficient to arrest the running of the statute of limitations, the claim was not barred.
2. On the back of the.certificate were printed the words: “In case of injury, fatal or disabling, immediately notify the Secretary of the Travelers Protective Association, at St. Louis, Mo.” The constitution and by-laws provided that “any member in good standing meeting with an accident must notify the State Secretary of the Division of which he is a member and the National Secretary, within thirty days of said accident; giving full particulars of the same and name of attending physician;” and that “in case of failure to notify, except because of unconsciousness, or physical disability, the member or his beneficiary in case of death, shall forfeit all rights to insurance benefits.” The contract therefore made the defendant’s liability contingent upon a claimant’s giving written notice of a disabling accident within thirty days of its occurrence, except in case of his unconsciousness or physical disability. The plaintiff gave no notice until April 1, 1915. Under various specifications of error the defendant urges that the failure to give an earlier notice is an absolute bar to his claim. The plaintiff’s contention in this regard is that although from the time the staple entered his body he suffered total disability which was actually due to its presence, it was not until the X-ray examination that this fact was ascertained, and that under .a fair construction of all parts of the contract he was relieved from giving an earlier notice.
It is said that “the time allowed by the policy for giving notice begins to run when the particulars or result of an accident are ascertained, where these are not immediately apparent” (1 C. J. 475), and that “if the insured, or the beneficiary under the policy, does not know that the accident was the cause of the injury, the giving of the notice within the prescribed time after he learns that the accident was the cause of the injury is a sufficient compliance with the provision for such notice” (14 R. C. L. 1334). There is some difference of judicial opinion on the subject. Perhaps the strongest case favoring a literal construction of the policy is Hatch v. United States Casualty Co., 197 Mass. 101, 14 L. R. A., n. s., 503, where it is held (as expressed in the L. R. A. headnote) that—
“A provision in an accident insurance policy that written notice of the injury must be given within ten days of the event causing such injury refers to the accident, and not to the time when the effect is discovered although "the discovery of the injurious effect is not made until more than ten days after the accident.” (Syl. If 1.)
Of this decision it is said in the L. R. A. note thereto:
“Although only one other ease [United States Casualty Co. v. Hanson, 20 Colo. App. 393, annotated in 18 L. R. A., n. s., 109] has been found in which a court has been called upon to construe language of a provision for notice, which was as unfavorable to the insured as that considered in Hatch v. United States Casualty Co., it may be doubtful, in view of the decision in that one case especially, and of the strong inclination of all courts to resolve all doubts created by the language of an insurance policy unfavorably to the company, whether very many courts, if called upon squarely to pass upon the question, would arrive at the same conclusion.” (p. 503.)
Cases of interest here will be found in a note on a related question in 7 A. L. R. 186. This court is fully satisfied with the view, to which it is already committed, that where the fact that a disability is due to an accident is not known, the time for the giving of a notice does not begin to run until its discovery. We have held an accident insurance company liable-under a contract calling for a notice ten days after an accident, where none was given for more than two months, assigning as a reason that “during all that time neither Barnes [the plaintiff] nor anyone connected with him knew that an accident had occurred or wh'at was the cause of his malady.” (Commercial Travelers v. Barnes, 75 Kan. 720, 724, 90 Pac. 293.)
Roscoe Pound, in his lecture on “Judicial Empiricism,” notes “eight noteworthy changes in the law in the present generation, which are in the spirit of recent ethics, recent philosophy and recent political thought.” The second change to which he refers he describes as limitations upon freedom of contract, imposed both by legislation and through judicial decision, saying:
“As examples of judicial, limitations, it is enough to remind you that our courts have taken the law of insurance practically out of the category of contract, have taken the law of surety companies practically out of the law of suretyship and have established that the duties of public service companies are not contractual, flowing from agreement, but instead flow from the calling in which the public servant is engaged.” (Pound’s Spirit of the Common Law, pp. 185, 186.)
That the modern tendency is to hold insurers to a more strict accountability is undoubted. Those who disapprove the process often characterize it as making a new contract for the parties. We think, it may fairly be called interpreting the contract in the light of the general purpose for which it was entered into, and of the consideration that the obvious purpose of an insurance policy is to insure. The language employed in an insurance policy may properly be limited in its application to the situation to which it is adapted and which it presumably was intended to meet. We do not undertake to say that a valid insurance contract could not be drawn providing for a forfeiture of the right to indemnity if the insured should fail to give notice of something that he did not know had taken place. But. a purpose to impose a condition so impossible of performance ought not to be attributed to the parties unless evidenced by express and unmistakable language — as for instance by saying that ignorance of the fact should not excuse a delay. In the present case the inference that because two exceptions to the rule requiring notice at the time of injury are expressed — unconsciousness and .physical disability — it was not intended that want of knowledge should be implied may well give way to the presumption that only a fair and reasonable requirement was intended.
The defendant suggests that the contract sued upon was made in Missouri and is to be given effect according to the laws of that state; and that 'the law as there declared by the courts is contrary to the view we have announced. We do not regard the Missouri decisions referred to as in conflict with our own conclusion, but if such were the case they would not be controlling, for while Missouri statutes were pleaded the pleadings contained no allegations with respect to any decisions of the courts of that'state.
3. It is argued that the conclusions just stated do not reach the present case because “the physical fact of the swallowing of the staple was known and believed by Hawthorne.” The jury gave affirmative answers to questions whether the plaintiff believed on April 13, 1913, that he had swallowed or inhaled a fence staple, and whether he continued to believe this and so notified the doctors whom he consulted during the following months. Under the instructions the general verdict necessarily implied a finding that the plaintiff did not think and believe that his disability was due to swallowing the staple, for the jury were told, in effect, that in order for the plaintiff to recover it must be shown that he did not discover and did not know or believe his disability was caused by the accident until about April 1, 1915. The special findings must be interpreted so as to harmonize with the verdict if reasonably open to such construction. The findings that the plaintiff believed he had swallowed or inhaled the staple seem fairly to mean that, noting the symptoms that followed his fall from the bucket while the staple was in his rnquth, his own idea was that the staple had gone down his throat, and he so informed the doctors, but when assured by them that this was impossible he yielded his personal impression to their experienced judgment, and accepted their view.
4. The jury were instructed that the plaintiff could not recover if he knew or thought and believed that his disability was due to swallowing the staple. Complaint is made because nothing was said concerning the reasonableness of his belief. No instruction was asked making that distinction, and a requested instruction on the general subject did not refer to it. The omission did not constitute reversible error.
The instruction, already referred to, relating to the same subject is also criticised as omitting matters necessary to be presented to the jury. We think, however, they were such as the jury would consider without attention being specifically called to them.
5. On April 26, 1914, the plaintiff sprained his ankle, the result being a disability on that account from that date to May 13, 1914, for which he received indemnity from the defendant for total and later for partial disability. By the instructions of- the trial court no allowance was made in this action for such period. The defendant’s , by-laws provide for indemnity for total disability “not exceeding one hundred and four consecutive weeks.” The claim is made that the episode of the sprained ankle, and the allowance on that account, broke the consecutive character of the present demand, and resulted in the immediate accrual of a cause of action upon the preexisting disability, which was barred 'by the statute of limitations before the petition in this case was filed. We do not accept this view: Under the verdict and findings the plaintiff suffered total disability from the time the staple entered his throat; the sprained ankle then created a condition which of itself amounted to a concurrent disability, for which payment was made. The rights of the defendant with respect to this matter were fully protected when the period of disability caused by the sprain was deducted from that due to the staple.
6. The jury found specially that the plaintiff’s general health was not good at the time he sprained his ankle. The defendant asserts that this finding is not supported by the evidence, because in connection with his claim against the company for indemnity in that connection he made statements to the contrary. These statements were merely matters of evidence to be considered by the -jury. They did not estop the plaintiff or otherwise preclude him from showing the real facts. In answer to special questions the jury said that they indemnified him from April 13, 1913, to April 13, 1915, but not from April 26, 1914, to May 13, 1914. This is said to be inconsistent with an instruction that nq recovery could be had after the date of the commencement of his indemnity on account of his sprained ankle. We do not discover that such an instruction was given. Nor do we regard the findings as inconsistent. Indemnity was allowed in this action for two years, excluding the period for which payment had already been made. A finding of total disability Was warranted, notwithstanding the plaintiff was not literally prevented from engaging in any activity whatever. (Commercial Travelers v. Barnes, 72 Kan. 306, 82 Pac. 1099.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In this action Sallie Keeton asked and obtained a recovery on a beneficiary certificate issued by the Ancient Order of United Workmen upon the life of her husband, Will D. Keeton, who died on August 30, 1921. In its appeal the defendant insists that Keeton was not a member of the order when he died, having been suspended for nonpayment of assessments and that he had never been legally reinstated. A further contention is that when he applied for reinstatement and paid certain assessments he falsely certified that he was then in a good state of bodily health whén in fact he was not.
As to the suspension and reinstatement, the trial court found that the assessments for February, March and April were delinquent, but that on May 21, 1915, he paid the financier of the lodge $6.80, to cover the delinquent assessments' and dues, for which that officer issued a receipt reciting that if reinstatement should be refused the moneys would be refunded by the financier. The matter of reinstatement was brought before the local lodge on June 24, and the record discloses that a motion to reinstate was made and carried by the order with the proviso that it should be accepted by the grand lodge and not conflict with the constitution. A motion was made and carried to refund to Mrs. Keeton the $6.80, but at the same meeting the action was reversed and the motion was adopted to retain the money until a communication from the grand lodge in regard to the same was received. On May 29 Keeton paid to the financier another assessment of $1.45 and took his receipt therefor. On June 25, 1915, Mrs. Keeton called at the office of the financier to make a payment, and not finding him in she inquired of the wife of the financier as to the payment and was directed to pay the same to the clerk of the financier, which was done, and a receipt issued which recited that it was for lodge dues to the A. O. U. W. Two subsequent tenders of assessments were made, in July and August, which the financier refused to accept. In July, 1915, a motion was entered in the record of the local lodge declaring that the reinstatement of Keeton was illegal. This followed a postal card notice to Keeton, signed by the recorder of the local lodge, advising that the grand lodge had not approved his reinstatement. However, no part of the money paid by Keeton or by his wife for him was ever returned to Keeton in his lifetime or to his widow since his death, and no tender thereof has ever been made. The money has been retained, but whether it is in the possession of the local lodge or the grand lodge was not shown. In a report issued by the auditing committee of the local lodge for June, 1915, it was not shown that Keeton was in arrears for dues and assessments. The monthly publication of the order, which is sent to members only and is revised once every six months, dropping out those who have been suspended and adding those who have been initiated, was sent to Keeton’s home address up until the time of his death. On May 29 an inquest was held as to the mental condition of Keeton and he was then adjudged to be insane and a fit subject to be sent to the hospital for the insane, and about two months later his death occurred. There was no evidence to sustain the claim that Keeton was not in good bodily condition when he signed the health certificate prior to his reinstatement except the report of the commission which examined him at the time of the inquest. This commission was composed of two physicians, one of whom, Dr. Candler, was the physician of the order who had examined Keeton when he was admitted into the order. That report contained conflicting statements, one of which was a statement that he was afflicted with syphilis. In another part of the report the commission stated that the usual conditions of the bodily health of Keeton were good. When Keeton was examined for admission to the order the previous December, the question of whether he had a venereal disease was a matter of inquiry, and Dr. Candler recommended him as free from disease and a fit person for membership. There was testimony tending to show that he did not have the disease mentioned when he signed the health certificate for reinstatement, and upon the whole evidence, which is deemed to be sufficient, the court found that he was in good bodily health at the time of reinstatement. The contention, therefore, that the reinstatement is void because of fraud in the application for reinstatement and of false representations made by Keeton at that time in the certificate cannot be sustained.
There is a contention that Keeton had been suspended from the order and never had in fact been reinstated. There was a recognized delinquency in the payment of assessments by Keeton which operated automatically as a suspension, but the local lodge, which had authority to reinstate suspended members, accepted the delinquent dues and assessments and voted in favor of reinstatement. It is true that the lodge at a later time entered a declaration on the record to the effect that the former action was illegal, but the retention of the dues and assessments is a more effective declaration that the reinstatement is valid. While there was a condition attached to the reinstatement, and later a declaration that the action previously taken reinstating,Keeton was illegal, the acceptance and retention thereafter of payments precludes the order from insisting that the reinstatement was invalid, and that Keeton had lost his rights in the beneficiary fund. In view of the recital in the receipt for the delinquent assessments that the money would be refunded if reinstatement was refused, the retention of the money was an assurance to the member that reinstatement had not been refused, and the acceptance and retention of fees and assessments thereafter paid tended to confirm that assurance.
The authority of the financier to accept payments is questioned, but the court found that this officer pursued the same course- and handled the fees and assessments paid by Keeton in the same manner as had been generally followed in other cases of a like character. Having collected the assessments and dues both before and after the vote for reinstatement and having retained them ever since, thereby treating Keeton as a member, the order is estopped to deny his membership and rights in the beneficiary fund. Authorities supporting this view in some measure are Foresters v. Hollis, 70 Kan. 71, 78 Pac. 160; United Workmen v. Smith, 76 Kan. 509, 92 Pac. 710; Benefit Association v. Wood, 78 Kan. 812, 98 Pac. 219; Allen v. Knights and Ladies, 102 Kan. 128, 169 Pac. 569; Ellis v. Fraternal Aid Union, 108 Kan. 819, 197 Pac. 189.
On the record as presented it must be held that the recovery was justified, and therefore the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
DawsoN, J.:
The defendant was convicted on two counts of grand larceny and one count of petit larceny for specified thefts of goods from her employer, a dry-goods company in Clay Center.
Various errors are assigned; and it is argued in her behalf that her several abstractions of goods from her employer’s establishment were not larcenies bwt purchases on account; that if she was guilty of wrongdoing it was embezzlement and not larceny; knd she complains of the exclusion of evidence, and that the valúe of the goods was not properly proved.’
Noting these matters in the order presented, the first contention is that the trial court erred in excluding the evidence of a petition and stipulation for judgment in a civil action by her employer against her for $10,000 for divers goods appropriated by her during the last six years. Counsel for defendant sought to introduce this petition and stipulation as a part of the cross-examination of the state’s chief witness, the proprietor or manager of the dry-goods company.' This witness had not testified on direct examination to anything pertaining to this civil action, and therefore it was not within the scope of proper cross-examination. (Seifert v. Schaible, 81 Kan. 323, 105 Pac. 529.) The defendant had the right to explain this civil action and settlement. She could have made the proprietor her own witness, or shown the facts by other witnesses, but no evidence was offered in her defense. (Reeves v. Brown, 80 Kan. 292, 102 Pac. 840.) If there was any merit in the present contention that the goods in controversy had been purchased, and that the mere relation of debtor and creditor between herself and her employer arose therefrom, there should have been a formal presentation of some evidence to that effect, not a futile reliance on an inference or argument to be founded on these documents irregularly dragged' in by improper cross-examination. Moreover, the excluded petition and stipulation merely showed that after her arrest on the criminal charge her employer filed a civil action charging her with appropriating to her own use $10,000 worth of dry goods, and that she immediately paid over that large sum in cash, and that the action was settled and dismissed. There was evidence that following her arrest her room had been searched and a vast amount of goods was found therein and that she admitted she had been taking goods from her employer for several years — that this was a habit of hers. It cannot be discerned how the excluded evidence would have helped her plight, for certainly her employer had a perfect right to sue her for the value of all the goods she had appropriated, notwithstanding the original action and regardless of the outcome of that- action. (Crimes act, § 24, Gen. Stat. 1915, § 3351; 1 C. J. 50.)
Complaint is also made because the jury was shown a large amount of goods seized in defendant’s room, other than those for the theft of which she was on trial. But the trial court properly limited the significance to be attached to that evidence. It was competent to show the method and intent of the defendant. As part of the state’s case on the particular larcenies charged against her, it was competent to show that she had a system of thieving and that the particular thefts charged were pursuant to that system. (The State v. Ridgway, 108 Kan. 734, 736, 197 Pac. 199; Commonwealth v. Coyne, 228 Mass. 269, 3 A. L. R. 1209, and note, 1213.) .
The next error urged relates to the insufficiency of the evidence of value pertaining to the stolen goods; but this contention lacks merit. While some of the testimony as to values was not to the point, as where the proprietor testified that certain of the articles were worth $6, and others xoorth 85 cents per suit, and the like, yet there was no want of evidence showing the retail selling price of these articles in Clay Center, and retail selling price is market value and was a proper basis for determining values in a case of larceny of goods from a retail store. (The State v. Brown, 55 Kan. 611, 40 Pac. 1001.)
A point is sought to be made because of the wide difference between the jury’s findings of values and the values testified to by the state’s witnesses. But the only importance attaching to the jury’s findings of values was to determine whether the crimes involved in the several counts were grand or petit larceny. This disparity between the evidence and the verdict resulted in a conviction of defendant of petit larceny on one count when the evidence seemed to show that the value was over $20 and that a conviction for grand larceny should have followed. But that is certainly not prejudicial error.
Touching the argument that the defendant’s crimes, if any, were offenses of embezzlement and not larcenies, the evidence did not show that defendant had legal possession of the goods and that she converted them to her own use. The evidence merely showed that she had a methodical system of pilfering from her employer, and that she had long pursued that system, and that pursuant thereto she stole, took and carried away the specific goods for which she was charged and for which she was convicted.
There is no error in the record, and the judgment is affirmed'. ’ | [
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The opinion of the court was delivered by
JohnstoN, C. J.:
J. E. Brewer & Company sued the Postal Telegraph r Cable Company for damages resulting from the failure of the latter to properly transmit and deliver an interstate telegram. The case was submitted to the court, upon the pleadings, and the opening statement of counsel for plaintiff, and upon these judgment was ordered and given for the defendant. Plaintiff appeals.
In their petition plaintiffs alleged that on the evening of March 14, 1920, they filed with defendant a telegram, to Brokers in Chicago, ordering the purchase of fourteen cars of eggs, four hundred cases to the car and thirty dozen to the case. When the telegram was filed and accepted, plaintiff told the agent of the defendant' that it was an important message, asked her if the wires were open so that the message could be put through, and her reply was that the wires were in good working order and the defendant would be able to transmit the message at once. It appears that the wires were not in commission between Abilene and Topeka, and for that reason defendant sent the message by mail to its office at Topeka and it was sent from there to Chicago, and was not delivered in Chicago until 11:10 a. m. of the following day nor until the exchange where the eggs were to be purchased had closed. Plaintiffs further alleged that they relied on the statement of defendant that the wires were in order and that the message would be promptly transmitted, and further say, that, if they had been informed of the break in the wires, they could have sent the message by another telegraph company whose lines were in working condition between Abilene and Chicago. The failure to receive the telegram until after the close of the exchange and the advance in the price of eggs occasioned a loss to plaintiff of $1,680, and for that amount judgment was demanded.
The defendant answered and claimed that it had carried out its contract, with plaintiff in accordance with the_ regulations established by the interstate commerce commission under the act of congress. The telegram filed was a night message, and it is claimed that' under the classifications and regulations applicable to such messages they are “accepted to be sentencing the night and delivered not earlier than the next ensuing business day, at reduced rates, but in no case for less than twenty cents toll for a single message.” There was no controversy as to the character of the message deposited and sent. It was a night interstate message and as to rates and regulations in its transmission and delivery, those established by the interstate commerce commission must control.
There is a dispute between the parties as to whether "the telegram was accepted as a repeated message or an unrepeated one. On its face it was not marked to be repeated and there was a condition printed on the blank telegram used that “unless otherwise indicated on its face, this is an unrepeated telegram and paid for as-such,” in consideration whereof certain conditions and rates were applicable. Brewer, however, says that he directed that the telegram should be repeated and delivered not later than nine o’clock the next morning, and that he would pay the repeated message rate. The matter of repeating the telegram is not of great consideration in the present case, except as it may indicate its importance, as there is no claim that'the message was not correctly transmitted as written. The real contention is that the defendant was negligent in transmitting it and that there was unreasonable delay in the delivery of the message, by which a substantial loss was occasioned to plaintiffs. According to the opening statement of plaintiffs’ counsel, defendant’s agent did not inform plaintiffs that the wires were down or that defendant could not put the telegram through, but did say that she would handle the message as an important one and put it through promptly. Further, that on the morning of March 15, at 8:30 a. m., plaintiffs inquired of the agent as to the message and she told them that she had not heard from it. Again at 9:30 a like inquiry was made by plaintiff and the agent again replied that she had received no information as to the message. A few minutes before twelve o’clock noon of that day a third inquiry was made and the defendant’s agent stated that she had no information of the message. At about one-thirty on the afternoon of that day the operator informed the plaintiffs that the message had been repeated and that delivery had been made to the broker at 11:10 a. m. of that day. It appears that the hours for trading in eggs on the Chicago mercantile exchange is from 9:30 a. m. to 10:00 a. m. for spot sales and from 10:15 a. m. to 10:45 a. m. for future sales. The sale under the order given to the broker would have come under the future trading period from 10:15 a. m. to 10:45 a. m., but the telegram was not received until after that hour and the eggs could not be purchased on the exchange until the following day. The market price for eggs on the next day was one cent per dozen more than on the 15th, and the delay and advance in price occasioned a loss of $1,680.
Defendant contends that its contract with the plaintiffs was actually fulfilled. This is based on the printed rule that night messages which go at reduced i rates are to be sent during the night and delivered not earlier than the next ensuing business day. The telegram was not delivered until the business day for the purchase of eggs on the exchange had expired. While it was a night message, the words used apprized the defendant of its urgency and importance, and besides, its agent was expressly informed of the importance of having the message delivered early in the morning of the next day. As we have seen, plaintiffs inquired if the wires were open and in working condition and was informed that they were and that the message would be sent according to instructions.- The wires were not open, and because of that condition the message was sent by mail to Topeka to be transmitted from there to Chicago by wire. By reason of the delay in transmission the message was not received until the exchange in Chicago had closed. To send the message by mail after assuring the plaintiff that the wires were open' and that it would be promptly sent by wire without notifying the sender of the broken wires and of the delay there would be in transmission, was palpable and gross negligence. Reasonable classifications of messages into day, and night, and repeated and unrepeated ones, and regulations of rates for each, are not open to valid objections. The rules and regulations established and approved are to be reasonably interpreted. The contention that the rule for the delivery of a night message at any time on the next ensuing day cannot be sustained. It should have been delivered within a reasonable time on the morning of the next business day. (Western Union Telegraph Company, v. Van Cleave, 107 Ky. 464; 26 R. C. L. 563.) What is a reasonable time for delivery depending of, course on the volume' of business of the company, the messenger service ordinarily required for its business, and the hour when business begins at the place to which it was sent, but the failure to deliver the message after the business to which it related had closed for the day was not within a. reasonable time. It at least should have been delivered during the period the exchange was open for the purchase and sale of eggs.
There is a suggestion that as the telegraph business was under federal control the action could only be brought in the federal court. There is no ground for this contention. Such an action may be brought in a state court of general jurisdiction where service upon the defendant can be obtained. When so brought the rules laid down by the federal supreme court interpreting the act of congress and the regulations of the interstate commerce commission are of course controlling.
The judgment is reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an action for damages arising from personal injuries sustained by the plaintiff who was about to enter the automobile of the defendant. The trial court sustained the defendant’s motion for summary judgment on the ground the plaintiff was a guest within the meaning of K. S. A. 8-122b, which required the showing of gross and wanton negligence as a basis for recovery, gross and wanton negligence not having been alleged by the plaintiff in her amended petition. Appeal has been duly perfected by the plaintiff.
The only question presented is whether the plaintiff (appellant) was a guest within the meaning of the Kansas guest statute at the time of her alleged injury.
After the filing of the first amended petition, it was stipulated and agreed for the purpose of submitting the defendant’s motion for summary judgment to the trial court that Frances Marie Chapman (plaintiff-appellant) was standing with one foot on the street and the other foot on the inside of the defendant’s (appellee’s) automobile on or near the right rear door sill. The plaintiff was preparing to enter the defendant’s automobile through the right rear door as she was in this position. The plaintiff’s hands at this time were on the defendant’s automobile, when it moved forward.
The plaintiff at the time she was in the above stated position was preparing to enter the defendant’s automobile for the purpose of riding to church with the defendant, who was driving. The date of this occurrence was December 20, 1964, and the location was the intersection of Seminary and Rainbow Streets in Kansas City, Wyandotte County, Kansas. The plaintiff had not promised to give nor had she given the defendant any consideration for this ride.
The plaintiff’s first amended petition alleged the defendant was guilty of ordinary negligence, and the plaintiff does not contend the defendant was guilty of gross or wanton negligence.
The defendant contends the plaintiff was a guest within the meaning of the guest statute.
Upon the foregoing facts the trial court sustained the defendant’s motion for summary judgment, holding that the plaintiff was a guest within the meaning of the Kansas guest statute.
The question herein presented is not one requiring us to define the word “guest” to determine whether the guest statute applies, but is a question whether the provisions of the statute have application at all.
The appellant contends the guest statute, by its terms, is not invoked by the factual situation here presented.
K. S. A. 8-122b provides:
“That no person who is transported by the owner or operator of a motor vehicle, as his guest, without payment for such transportation, shall have a cause of action for damages against such owner or operator for injury, death or damage, unless such injury, death or damage shall have resulted from the gross and wanton negligence of the operator of such motor vehicle.” (Emphasis added.)
Rased upon the emphasized language above, the statute clearly imposes the burden of proving gross and wanton conduct only upon those who are transported.
We think the appellant’s position is meritorious. Under the facts the appellant was not being transported; she had not even entered the appellee’s vehicle at the time she was injured. Consequently, the guest statute is inapplicable and the appellant stated a cause of action in ordinary negligence.
Innumerable opinions have been written by this court, and in other jurisdictions, construing and interpreting the meaning of guest statutes. The holdings of the courts are not in agreement as to when the status of host and guest is established or ceases. Many of the cases on the subject are collected in an annotation in 50 A. L. R. 2d 974 where a variety of holdings may be found. The Iowa Supreme Court in Rainsbarger v. Shepherd, 254 Iowa 486, 118 N. W. 2d 41 (1962), held on facts similar to those presented in the instant case that the plaintiff was a guest while attempting to enter the car; that her “ riding in’ ” had started. The Iowa court reviewed the many decisions from other jurisdictions touching the factual situation here presented, and reference is made thereto for a discussion of these cases.
The Kansas Supreme Court in Marsh v. Hogeboom, 167 Kan. 349, 205 P. 2d 1190, held that a plaintiff who had departed from a vehicle and was in the process of closing a door on that automobile when it moved forward, dragging her with it, was a guest and, therefore, was required to show gross and wanton negligence against the owner or operator of the vehicle in order to recover. The court there discusses the fact that the act of closing the door must be considered the natural and normal act culminating the gratuitous undertaking that is referred to in the guest statute. In the opinion the court said:
“We think every case of this character must of necessity be decided upon its own peculiar facts. It must therefore not be assumed the conclusion we reach in the instant case necessarily means we are adopting similar decisions reached by some courts on materially different facts. We prefer to rest our decisions upon our own statute and the particular facts involved in each case as it may arise.
“Did the negligence alleged in the instant petition constitute an incident of the gratuitous undertaking which appellee had assumed? If it constituted such incident it is clear the incident occurred in the course of carrying out the gratuitous undertaking.
“Is it reasonable to assume that as a part of completing the gratuitous under taking appellee would not be required to permit appellant to disconnect herself from the vehicle? We do not think so. Is it reasonable to assume the closing of the door after appellant alighted was no part of the completion of the undertaking? We think it is not. The alleged negligent act occurred while appellant had her hand on the door handle and was attempting to close the door. Surely a host would not naturally or normally expect a guest to get out of the car and leave the car door open.” (pp. 352, 353.)
In summing up its discussion of the case the court said:
“. . . It seems to us it would be drawing too fine a distinction to say if the negligent act of the driver occurred after the car had stopped and while the guest was endeavoring to open the door from the inside, the negligence occurred in the course of the gratuitous undertaking but if the negligent act occurred while the guest was endeavoring to close the door from the outside then the negligence did not occur in the course of the gratuitous undertaking. The closing of the door was the natural, the normal act culminating the gratuitous undertaking. The alleged negligence occurred while that act was in progress.
“We think the demurrer was properly sustained and the order is affirmed.” (p. 353.) (Emphasis added.)
The appellee relies upon Marsh v. Hogeboom, supra, and in particular the language emphasized, contending that the facts in the instant case involve the acts initiating the gratuitous undertaking. It is argued if the act of closing a door of an automobile after the guest has alighted is “the natural, the normal act culminating the gratuitous undertaking,” then certainly a guest who is entering a vehicle through an opened door, having placed one foot inside the automobile and having placed both hands on the automobile, is well within the natural, the normal acts initiating the gratuitous undertaking. '
The appellee also relies upon Cohee v. Hutson, 143 Kan. 784, 57 P. 2d 35, where the plaintiff had departed from a vehicle in which he was riding, during an interruption of the trip, and was in the process of placing a block under the front wheel of the stopped vehicle when it moved forward and injured the plaintiff. The court there held the plaintiff was a guest within the Kansas guest statute and was required to prove gross and wanton negligence before he could recover against the owner and operator of the vehicle.
The Cohee decision, however, is distinguishable because the parties agreed the guest statute was involved, and the court was not required to determine the issue for which the appellee cites the case.
In Economou v. Anderson, 4 Ohio App. 2d 1, 211 N. E. 2d 82 (1965), the Ohio court was presented with a factual situation almost identical to the facts herein, except that the defendant slammed the door shut and crushed the plaintiff’s right foot and leg between the door and the frame of the vehicle. The language of the Ohio guest statute is similar to the Kansas statute in that it absolves the operator of a motor vehicle of liability for injury resulting to a guest from ordinary negligence in the operation of such motor vehicle while the guest is being transported, without payment, in or upon such motor vehicle. The Ohio court, in holding the plaintiff was not a guest within the meaning of the statute, said:
“In harmony with sound reasoning, we are compelled to hold that the injured man, at the time of the accident, was not a guest being transported in or upon the motor vehicle. A person in the process of entering an automobile parked at a curbstone is not being transported in any sense of the word. In order to claim the benefit of the lessened liability in the statute, it must appear that the owner, operator, or person responsible for the operation of an automobile, invited a guest to ride, and, as a result of the operation of the automobile, while in the process of being driven from one place to another, the guest was injured. A contrary ruling in this case would require the court to add to, or delete words from, the statute. This we cannot do.
“If it may be said that closing the door on one’s parked automobile preparatory to driving it away constitutes a part of the operation of the car, nevertheless, a guest who has partly entered a parked, stationary automobile is not at that time being transported.” (pp. 3, 4.)
Similarly, Smith v. Pope, 53 Cal. App. 2d 43, 127 P. 2d 292 (1942), involves a factual situation almost identical to the instant case. There the driver’s foot slipped off the clutch pedal, while the plaintiff was in the process of entering on the passenger side of the vehicle, and the passenger was injured. The pertinent part of the California guest statute provided:
“No person who as a guest accepts a ride in any vehicle upon a highway without giving compensation for such ride, . . . has any right of action for civil damages against the driver of such vehicle ... on account of personal injury to . . . such guest during such ride, . . .” (Vehicle Code, § 403, St. 1935, p. 154.) ( Emphasis added.)
The court there, holding the plaintiff was not a guest under the above statute, said:
“The conditions for the exemption from liability thus granted are two. (1) A guest shall accept a ride ‘in any vehicle’; and (2) the injury must occur ‘during such ride.’ In order to claim the benefit of the lessened liability provided by this section the defendant must show that the ‘guest’ first accepted a ride in a vehicle and was thereafter injured during such riele. The term ‘in any vehicle’ as here used, is not, and by force of reason would not be, limited to the construction that a person must be actually seated within the enclosure of the automobile before a person could be said to be ‘in any vehicle’. It might well be anticipated that a person could be invited to ride on a vehicle other than within the enclosure so provided and still be a guest ‘in any vehicle,’ but we believe the additional term used, i. e., that the person must be injured ‘during such ride’ contemplates that such a ride by the guest must have been actually commenced. In other words, it was not necessary, as it was before under the former section, to show that the vehicle was ‘moving upon any highway,’ but only to show that the injury occurred ‘during the ride’ which would include in that category all the time elapsed from the time of entering the vehicle, and while so continuing such occupancy, until the journey’s end. . . . ” (pp. 46,47.)
It is noted that both the Ohio decision (Economou v. Anderson, supra) and the California decision (Smith v. Pope, supra) mention the fact that their guest statutes are in derogation of the common law and, as a consequence, must be strictly construed. By reason thereof, the appellee challenges the persuasive effect of these decisions in Kansas because K. S. A. 77-109 provides:
“The common law as modified by constitutional and statutory law, judicial decisions, and the conditions and wants of the people, shall remain in force in aid of the General Statutes of this state; but the rule of the common law, that statutes in derogation thereof shall be strictly construed, shall not be applicable to any general statute of this state, but all such statutes shall be liberally construed to promote their object.” (Emphasis added.)
The foregoing statute has been considered in connection with the Kansas guest statute in Wright v. Pizel, 168 Kan. 493, 214 P. 2d 328.
In spite of the foregoing statute, which requires a liberal construction of the Kansas guest statute to promote its object, the statute should not be extended beyond the situations it was intended to remedy. (Thomas v. Hughes, 177 Kan. 347, 353, 279 P. 2d 286.) It should not be extended, therefore, to situations involving one who was not transported. The statute is designed to serve as a shield, and not a sword, for the owner or operator of an automobile. (Ehrsam v. Borgen, 185 Kan. 776, 780, 347 P. 2d 260.)
The factual situation presented herein has not previously been considered by this court in connection with the guest statute, and while authorities from other states interpreting similar statutes are helpful, they do not control in construing our own guest statute.
Here the appellee had not yet begun to physically transport the appellant. Therefore, the appellant was not one “who is transported,” and she does not have to allege and prove gross and wanton negligence to recover damages from the appellee.
Marsh v. Hogeboom, supra, is distinguishable on the ground that the plaintiff there had ridden with the defendant — had been transported — and was injured after she had alighted from the vehicle but was in the process of closing the door. The act of closing the door was part of the gratuitous undertaking performed by the defendant. The fact that the plaintiff had been transported in the Marsh case indicates that the terms of the statute applied, and the only question was: When did the transportation cease under the guest statute? Here the appellant had not been transported, and the statute would not be applicable in the first place.
We hold the appellant in the instant case was not being transported, and the guest statute applies only to those who are actually being transported.
Accordingly, the judgment of the lower court is reversed. | [
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The opinion of the court was delivered by
O’Connor, J.:
This is an action brought pursuant to K. S. A. 12-712 by plaintiffs, a group of homeowners within or near the Wycliff subdivision in Overland Park, to test the reasonableness of an ordinance enacted by the city governing body rezoning a nearby tract of land. The district court, after hearing the matter, entered judgment for the defendant city and intervenor, Century Development Company, Inc., and plaintiffs have appealed.
The several assignments of error resolve themselves into two basic questions: (1) whether the trial court properly restricted the evidence to the transcript of the hearing and those matters actually considered by the city council in enacting the ordinance, and (2) whether the court erred in upholding the reasonableness of the council’s action.
Century Development Company, Inc. is the owner of approximately thirty-eight acres of land located on the northwest comer of the intersection of 103d street and Antioch road in Overland Park. On August 29, 1966, the company filed an application to rezone approximately the south thirty-four acres of the tract from R-l (single family residential) to R-3 (garden apartments). After public hearing and study, the planning commission recommended approval of the application, and the matter was forwarded to the city council for final disposition. The council conducted a public hearing on December 5, at which numerous interested persons, including attorneys for the applicant and protesting homeowners, appeared and made statements supporting their respective views. A verbatim record was made of the proceedings. The council, by majority vote, approved the application and an ordinance was duly enacted rezoning the property.
Plaintiffs filed their petition January 11, 1967, alleging the action of the defendant city was unreasonable, arbitrary, capricious, and without just cause. It was alleged the rezoning ordinance would, among other things, depreciate the values of plaintiffs’ properties, would cause an additional safety hazard for children attending a nearby school, would create an undue burden upon existing sewers and streets in the area, would change the complexion of the area, and was adopted in complete disregard of the city’s general and comprehensive plan of development prepared and published pursuant to K. S. A. 12-704. Thereafter, Century Development Com pany, Inc. was permitted to intervene, and the company, as well as the defendant city, filed answers generally denying the allegations of plaintiffs’ petition.
Plaintiffs later sought to amend their original petition to state as an additional ground for the city’s action being unreasonable that the council adopted the ordinance “upon the assumption” an adjoining tract of land to the west of the one in question (hereafter referred to as the Shorten-Sharp tract) had been lawfully rezoned to predominantly R-3 classification in late 1965 or early 1966, but in law and fact such purported rezoning was void and of no force and effect. At a pretrial conference held June 26, 1967, the district court, after noting that a transcript of the hearing before the city council was avaliable, and apparently relying on our decision in Bodine v. City of Overland Park, 198 Kan. 371, 424 P. 2d 513, ruled that the transcript would be admissible in evidence, and further, that the court would confine itself only to evidence relating “to the matters heard by the city governing body along with any exhibits or documentary evidence that were likewise submitted and considered” by the city council in making its decision.
Following the trial in district court, at which all parties introduced evidence, the district judge, on July 31, 1967, specifically found the city governing body considered numerous factors in enacting the ordinance, such factors being: a comprehensive plan of development for the entire area; the nature, type and appearance of structures to be built on the tract in question, including an acreage set aside for a church; the fact the tract was bounded on the south and west by R-3 zoning and on the south and east by two major thoroughfares, and the relative location of plaintiffs’ properties in the Wycliff subdivision; provision was made for more than adequate parking; the terrain of the land; problems, if any, of sewers and traffic congestion; the number of school children .that could be expected; the substantial increase in tax base and the capital investment differential; community demand for apartments; depreciation in value of surrounding property; possibility of future change in area zoning; and the relation of the proposed development with others in the Kansas City area and future development impacts. The court further found that the question of the validity of the zoning of the Shorten-Sharp tract need not be decided “for assuming arguendo that same could be injected into the case, the plaintiffs have failed in their burden of proof, as a matter of law, to show that same was a material assumption by the city.” The court concluded from all the evidence that plaintiffs had failed to sustain their burden of proof to show the city acted unreasonably, and entered judgment for the defendants.
Plaintiffs’ pricipal complaint on appeal raises the question of what evidence may be considered by the district court in testing the reasonableness of an ordinance or regulation under K. S. A. 12-712.
Plaintiffs urge that as a result of the trial court’s pretrial ruling restricting the evidence to the “record and all evidentiary matters” considered by the city governing body in making its decision they were precluded from establishing the invalidity of the earlier rezoning of the Shorten-Sharp tract lying west of and immediately adjacent to the Century Development Company property. Since the zoning of surrounding property is always an important factor in considering an application for rezoning, plaintiffs argue the validity of the zoning on the Shorten-Sharp tract was relevant to the reasonableness of the city’s action in rezoning the property in question.
Plaintiffs’ contention the trial court misconstrued our decision in Bodine v. City of Overland Park, supra, with respect to what evidence may be considered in an action of this nature is well founded. In Bodine we said:
“. . . The statutory proceeding authorized by 12-712, supra, (and 19-2913, supra) is neither a trial de novo nor an appeal in the true sense of the word. When the trial court hears evidence anew in a case of this character, the proceeding resembles a trial de novo, but there the semblance ends.
“It is to be noted the statutes (12-712, supra, and 19-2913, supra) do not set out the procedure to be used in the district court in proceedings of this nature. In Appleby v. Board of County Commissioners, 166 Kan. 494, 203 P. 2d 224, the court recognized this fact and held that the trial procedure is governed by our code of civil procedure; that the defendants may defend the action, demur to the plaintiffs’ evidence and appeal if the demurrer is overruled. While the Appleby decision was made prior to the adoption of our new code of civil procedure the basic rule must be the same. In other words, in the instant case the proceeding was to be conducted in accordance with the new code of civil procedure which became effective January 1, 1964. Incorporated therein is Article 4 — Rules of Evidence. (K. S. A. 60-401 to 60-470, inclusive.) Thus, tire reasonableness of the action taken by the governing body of the city of Overland Park in denying the appellees’ R-4 garden apartment zoning application should be determined from the issues made up by the pleadings and the evidence submitted thereon in accordance with the rules of evidence. (See, Hillebrand v. Board of County Commissioners, 180 Kan. 348, 350, 304 P. 2d 517.)” (Emphasis added.) (pp. 385, 386.)
Although we said that the proceeding in district court bears some semblance of a trial de novo, we cautioned that the power of the court is limited to determining (a) tbe lawfulness of the action taken, that is, whether procedures in conformity with law were employed; and (b) the reasonableness of such action. With respect to the question of reasonableness, the court may not substitute its judgment for that of the governing body and should not declare the action of the governing body unreasonable unless clearly compelled to do so by the evidence. The presumption exists that the governing body acted reasonably, and it is incumbent upon those attacking its action to show the unreasonableness thereof. (Also, see, Arkenberg v. City of Topeka, 197 Kan. 731, 421 P. 2d 213; Moyer v. Board of County Commissioners, 197 Kan. 23, 415 P. 2d 261; Konitz v. Board of County Commissioners, 180 Kan. 230, 303 P. 2d 180.)
The city governing body in Bodine, unlike here, made no record of the hearing which it conducted upon the zoning application. The district court heard evidence as if the case were presented as a trial de novo upon the issues framed by the pleadings.
Since Bodine we have had further occasion to reemphasize the limitations upon the power of the district court to review by a trial de novo the decisions of administrative bodies. (Rydd v. State Board of Health, 202 Kan. 721, 451 P. 2d 239; Lauber v. Firemens Relief Association, 202 Kan. 564, 451 P. 2d 488; Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 436 P. 2d 828.)
In Rydd v. State Board of Health, supra, we had before us the provisions of K. S. A. 65-504 wherein an applicant or licensee aggrieved by the order of the board in denying or revoking a license may seek judicial review in the district court on the limited question of whether or not the order was arbitrary, unlawful or unreasonable. The statute provides that “Such an appeal shall be tried de novo and the court shall receive and consider any pertinent evidence, oral or documentary, concerning the order of the board from which the appeal is taken.” In the opinion we stated:
“It is true the appeal statute here (65-504) provides for trial de novo; however, as in Foote, the statute is to be construed in the light of the constitutional inhibition prescribed by the separation of powers doctrine. This means the legislature may not impose upon the judiciary the function of a trial de novo of action of an administrative agency in the sense of authorizing the court to substitute its judgment for that of the administrative agency in matters other than law or essentially judicial matters.
“65-504 authorizes the court to act if it finds the board’s order arbitrary, unlawful or unreasonable. The issue, then, before the district court upon appeal is the reasonableness and legality of the order appealed from. . . .” (p. 729.)
In the instant case the lawfulness of the action taken by the city governing body from a procedural standpoint was not attacked. The sole question presented for determination by the district court was the reasonableness of the governing body’s action in rezoning Century Development Company’s property. The burden was on the plaintiffs to prove the action unreasonable.
The rules of evidence (Art. 4) of the new code of civil procedure apply to the proceeding in district court. (Bodine v. City of Overland Park, supra.) These rules recognize as a fundamental principle that the primary test of admissibility of evidence is its relevancy to the issue in dispute, and that all relevant evidence is admissible unless limited by the various exclusionary rules. (See, Gard, Kansas Code of Civil Procedure, Annotated, § 60-407, pp. 370, 371.) Thus, a district court, in determining the reasonableness of the action of a city governing body, is not necessarily limited to those matters considered by the city fathers. Within the framework of issues made up by the pleadings or at pretrial conference, the court may receive .and consider any evidence relevant to the limited question of .reasonableness. The test of relevancy should not depend on the .availability of a full and complete transcript of the proceedings "before the city governing body. In actual practice, the proceedings may or may not be recorded. If a record is made, as it was here, it is relevant and admissible in the district court. Parties attacking the reasonableness of an ordinance should not be precluded from the presentation of relevant evidence showing unreasonableness, even though such evidence was not presented to the governing body. This is not meant to imply that the hearing in district court should be a retrial on the merits of the zoning application, irrespective of whether or not a record was made of the city council’s proceedings; neither does it imply that a party may lie in wait and ambush the ■other side at the district court hearing. The district judge remains ■armed with his usual discretion in admitting or rejecting evidence, and his rulings will not be disturbed unless substantial rights of a party are thereby affected. (See, Bodine v. City of Overland Park, supra.)
Our view on the point under consideration is fully supported by •our decision in Rydd v. State Board of Health, supra, where the district court had concluded it could not consider evidence which had not been presented to the administrative board. Although the "lower court’s disposition of the case was affirmed on other grounds, we added the following words of guidance with respect to the court’s reviewing authority:
. . The lack of uniform requirements and resultant practice in recording evidence supporting administrative action, as well as the indiscriminate use of the term trial de novo, has contributed to some confusion in our law and points up the desirability of greater uniformity in our statutes governing hearings by administrative agencies and judicial review of their actions. This problem was recently discussed in Bodine v. City of Overland Park, 198 Kan. 371, 424 P. 2d 513, where it was stated that evidence submitted upon judicial review of a zoning action was to be received in accord with our evidentiary code. (K. S. A. Chap. 60, Art. 4). The trial in district court then is de novo in the sense the court may take its own evidence and is not necessarily limited to the evidence presented before the administrative board. The power to receive and consider such evidence, however, is not to be employed for the purpose of enlarging the scope of judicial review — that test being, the evidence must be relevant to the limited issue before the court on appeal; namely, the reasonableness and legality of the order appealed from. . . .” (pp. 731, 732.)
Over the years, the scope of judicial review of actions by administrative bodies had been of perplexing concern to the bench and bar of this state. The confusion has apparently arisen because of the creation of an ever increasing number of administrative agencies, boards and tribunals, each with its own peculiar statutory provisions. The present case, like others reaching this court recently (see, e. g., Rydd v. State Board of Health, supra; Lauber v. Firemens Relief Association, supra; Kansas State Board of Healing Arts v. Foote, supra; Board of County Commissioners v. Brookover, 198 Kan. 70, 422 P. 2d 906; Moyer v. Board of County Commissioners, supra; Lira v. Billings, 196 Kan. 726, 414 P. 2d 13), clearly demonstrates the need for legislation providing for greater uniformity in the areas of administrative practice and procedure and judicial review of administrative decisions.
Although the trial court’s ruling was unduly restrictive as h> what evidence was admissible, the plaintiffs are not entitled to a. reversal of the judgment. The court did not abuse its discretion in excluding certain evidence offered by plaintiffs, which was mainly repetitious of that given at the hearing before the city council. In ruling on plaintiffs’ proffered evidence to establish their claim that the city’s action was based in part on the alleged invalid zoning: of the Shorten-Sharp tract, the court considered such evidence beyond the scope of proper inquiry. Despite the ruling, the court, in the journal entry of judgment, specifically found that even if such. zoning was in fact void, plaintiffs had nevertheless failed to show it was “a material assumption” by the city. This, in effect, constituted a finding that the alleged invalidity of the rezoning of the Shorten-Sharp tract was not of such materiality as to make the action of the governing body unreasonable. The district court’s other findings previously recited disclose the numerous factors taken into consideration by the council in granting the application in question. The zoning on the Shorten-Sharp tract was only one of those many factors. The court’s findings which have not been challenged, except as they relate to the Shorten-Sharp tract, were supported by the evidence. Under all the facts and circumstances, we agree with the trial court’s conclusion that plaintiffs failed to sustain their burden of proving the action of the city governing body was unreasonable. The judgment is affirmed. | [
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The opinion of the court was delivered by
Fontron, J.:
This is an appeal by the plaintiff, Dorothy A. Flannery, from an order overruling her motion to modify a divorce decree in two particulars: (1) Ry requiring her former spouse, the defendant Lawrence S. Flannery, to pay for certain repairs to the ancestral home being occupied by Mrs. Flannery and a minor son, the title to which had been awarded equally to the two Flannerys and which plaintiff had been given the right to occupy until September 6, 1969; (2) by increasing the child support of $120 per month originally set by the court.
The divorce case, itself, was heard by Judge Floyd H. Coffman of Ottawa who was assigned to hear the matter after the regular district judge, Frank R. Gray, disqualified himself. Shortly after the motion for modification was filed, plaintiff’s counsel, Mr. Ross, wrote Judge Coffman asking him to set the motion for hearing. The following day, the defendant’s counsel, Mr. George Melvin, sent a letter to Judge Coffman objecting to his hearing the motion and stating that Judge Gray should hear it even though he had disqualified himself from hearing the divorce.
Three days later Judge Coffman advised both attorneys by mail that he had set the matter for hearing but would not insist on bearing it if Judge Gray should hold that he, Coffman, had no jurisdiction. A further letter was mailed to Judge Coffman by Ross advising that he assumed Judge Gray would not wish to hear the motion but that he had no preference as to which judge heard it and would leave that to the sound discretion of the courts. Thereafter Judge Gray advised by letter that the matter which had required his disqualification appeared to have been finally adjudicated and he saw no reason why he could not hear the motion.
The upshot of the extended colloquy was that Judge Gray determined he would hear plaintiff’s motion, and this he did, despite a motion filed by plaintiff for a change of venue. In ruling on this motion, Judge Gray said:
“. . . that the reason for the disqualification in the divorce hearing is, in the Court’s judgment, now resolved inasmuch as a divorce has been granted,' and the issues upon which the Court felt disqualified to hear have been resolved. . . . The only basis of your motion, if it could be construed as one, is that you feel the Court should disqualify itself, and I think the only person who can determine whether he can disqualify himself is the Court himself. I don’t feel that I will be biased or prejudiced in connection with this motion, so I do not disqualify myself.”
The plaintiff contends that Judge Gray erred in malting this ruling and in proceeding to hear plaintiff’s motion to modify.
Treating plaintiff’s motion for change of venue as a motion for disqualification, as it seems to have been considered by Judge Gray, we entertain the view that no error was committed in its denial or in Judge Gray’s proceeding to act . in the matter. In so concluding, we have no intention of repudiating the principle that one who acts in a judicial capacity is disqualified to hear any matters concerning which he may be biased or prejudiced, or in which he may have an interest. That principle is far too basic to the Anglo-American concept of justice to be abrogated or debased. In Tootle v. Berkley, 60 Kan. 446, 56 Pac. 755, it was said:
“. . . It is the purpose of the law that no judge shall hear and determine a case in which he is not wholly free, disinterested, impartial, and independent. . . .” (p. 448.)
See, also, Peytons Appeal, 12 Kan. 398.
However, the fact of disqualification, that is, the existence of bias or prejudice or of conflict of interest on the part of a judicial officer is a matter which must be established. In this state a judge may not be disqualified by the simple expedient of a certificate filed by a litigant alleging bias, prejudice or conflicting interest, although such a rule exists in some jurisdictions by legislative enactment. Ordinarily it may be said, absent circumstances which of themselves would tend to cast doubt as to the fairness of whatever judgment the judge might pronounce, the question of bias or prejudice on the part of a court rests largely within the conscience of the court itself. In the early case of City of Emporia v. Volmer, 12 Kan. 622, it was held:
“In criminal cases, on an application for a change of venue on account of the prejudice of the judge, such facts and circumstances must be shown by affidavits or other evidence as clearly establish such prejudice; and unless it be by such testimony clearly established, a reviewing court will sustain an overruling of the application, on the ground that the judge must have been personally conscious of the falsity or non-existence of the grounds alleged.” (Syl. ¶1.)
This holding was cited with approval in Sheldon v. Board of Education, 134 Kan. 135, 140, 4 P. 2d 430, and applies with equal force in both civil and criminal cases.
In the present case Mrs. Flannery did not allege in her motion for change of venue that Judge Gray was biased or prejudiced. She merely set out that she felt Judge Coffman was acquainted with the facts and circumstances involved in the dispute between the parties, including their financial situation, and that it had already been detrimental to her health to have the matter assigned to a different judge.
Indeed, the argument pressed most strongly by Mrs. Flannery in this appeal is that where a judge has once disqualified himself, his disqualification persists throughout all subsequent proceedings which may arise in connection with the case. Her position in this respect conflicts with the generally accepted view in this country as set out in 30A Am. Jur., Judges, § 220, pp. 115,116:
“The question whether the order or determination of a judge that he is disqualified may be revoked by himself, or by some other member of the same court, depends upon the construction of the local statutes, if any, governing the disqualification of judges, upon the effect to be given to the filing of a sufficient affidavit of prejudice, and also depends on whether another judge has been called to act in the case and has proceeded therein and still retains the case for disposition. In view of the general control of a court over its orders and decrees rendered at the same term, most of the cases are consistent with the doctrine that, absent statutory provision to the contrary, the bare fact of there having been a judicial order or determination of a judge’s disqualification does not prevent his reassuming full jurisdiction by timely order showing that in fact there was no disqualification or that the same has been removed.”
See, also, annotation in 162 A. L. R., Judge — Revocation of Disqualification, III, p. 646, et seq.
Although this court has never had occasion to pass upon the matter of disqualification under the precise circumstances now before us we believe some analogy can be found in Price v. Gibson, 165 Kan. 10, 192 P. 2d 219, where a probate judge pro tem was selected to hear a petition for probate of a will when it developed the regular judge would be a witness as to the testator’s mental capacity. It was held in this case that the authority of the judge pro tem ceased at the time he admitted the will to probate and that he had no jurisdiction to issue letters testamentary or to fix bond, or to act in other matters concerning the administration of the estate.
In the action now before us, Judge Gray pointed out that the reason for his prior disqualification had been resolved and he expressed the feeling he would not be biased or prejudiced in hearing the present motion. Our search of the record reveals nothing either in Judge Gray’s remarks or in his ruling on the motion for modification to suggest partiality or prejudice on his part. Accordingly, plaintiff’s first point is not well taken.
We proceed to consider plaintiff’s motion to modify the decree, itself, the first ground of which was to require the defendant to pay such extraordinary expenses of repair, maintenance and upkeep of the home as were necessary to preserve it. The trial court held this was an attempt by plaintiff to alter the property division previously adjudicated in the divorce action and held, further, that the court was without power or authority to change that portion of its decree. This ruling we believe to be correct.
K. S. A. 1968 Supp. 60-1610 (b) governs the disposition of property in a divorce action. It provides in pertinent part:
“The decree shall divide the real and personal property of the parties, whether owned by either spouse prior to marriage, acquired by either spouse in his or her own right after marriage, or acquired by their joint efforts, in a just and reasonable manner, either by a division of the property in kind, or by setting the same or part thereof over to one of the spouses and requiring either to pay such sum as may be just and proper, or by ordering a sale of the same under such conditions as the court may prescribe and dividing the proceeds of such sale.”
This court has had no occasion to determine what power, if any, may be retained by a trial court under this statute with respect to property which has been divided, and property rights which have been settled, in a preceding divorce decree. The question has arisen, however, in actions where permanent alimony had been awarded in accordance with the provisions of a predecessor statute, G. S. 1949, 60-1511. In Conway v. Conway, 130 Kan. 848, 288 Pac. 566, the trial court awarded alimony to the plaintiff wife in an amount of $200 per month, together with the right to occupy the family residence as a home, expressly retaining jurisdiction to control and change the amount of alimony in the future. In a proceeding to modify the judgment this court, on appeal, held the alimony judgment to be void, and had this to say on the question of continuing jurisdiction:
“In framing the existing law, the legislature had distinctly in mind and expressly dealt with the subject of continuing jurisdiction. The regulation relating to settlement of property interests follows immediately after the regulation relating to custody and maintenance of children. Continuing jurisdiction to change any order relating to custody, support and education of children was granted. No such power was granted with respect to settlement of property interests, and the omission is tantamount to express denial. The judgment for alimony is a final determination of the rights of the parties in respect to alimony. A court cannot give itself power by its own order to make future revisions of the merits of the judgment, and, of course, the parties to the action cannot confer such jurisdiction by agreement. (pp. 850, 851.)
“The district court had no power to reserve jurisdiction to modify either the money portion of the judgment or the portion relating to the real estate.” (p. 852.)
The rule expressed in Conway was followed in cases involving alimony (see Hinshaw v. Hinshaw, 166 Kan. 481, 203 P. 2d 201; Henderson v. Henderson, 194 Kan. 456, 399 P. 2d 877) until, in 1963, the legislature changed the existing law with respect to alimony. K. S. A. 1968 Supp. 60-1610 (c) enacted at that time, now governs the allowance and payment of alimony. Among other major changes effected in the realm of alimony by this statute is the provision which authorizes the court to modify the amounts or conditions for payment of alimony originally awarded, but not yet due, except that no modification may be made without the consent of the obligor which would effect an increase or acceleration of liability for unpaid alimony beyond that prescribed in the original decree.
It is significant that while the statute expressly authorizes the court, upon notice and hearing, to modify the original award of alimony, subject, of course, to the limitation therein set out, there is no comparable authority granted with respect to that part of a divorce decree which relates to an award or division of property. This omission can be construed only as a deliberate legislative design to withhold from a trial court the power to modify its original decree as to property rights or division of property. Had the legislature intended to vest the court with continuing jurisdiction in matters of property, as well as alimony, we must presume it would have made similar provisions as to both.
Plaintiff directs attention to the provision in K. S. A. 1968 Supp. 1610 (a) empowering the court to set aside such part of the family property as seems needed for support of the children. That section of the statute has no relevance here. The decree gave plaintiff sole possession until September 6, 1969, when the home might be sold and the proceeds equally divided. It is clear this portion of the decree was not framed under the above provision but was part and parcel of the property division decreed when Mrs. Flannery was granted the divorce.
We are forced to conclude the trial court was without power to compel Mr. Flannery to pay for repairs to the house, since the original decree imposed that expense on Mrs. Flannery. This result is inescapable even though the property may be deteriorating rapidly, to the probable detriment of both parties.
No purpose would be served in detailing the evidence relating to the question of increased child support. It is sufficient to say that both sides had their day in court and that both plaintiff and defendant testified at length. The trial court was apprised not only of the needs of Mrs. Flannery and her two sons, one of whom attends St. Johns University at his fathers expense, but of the current resources and financial obligations of Mr. Flannery, as well.
From a review of the evidence in its entirety we cannot say the trial court’s action in refusing to increase child support was not based on substantial competent evidence, even though a different conclusion might have been supported. Our function on appeal is not to weigh conflicting evidence but to determine if the court’s decision finds substantial support in the evidence. This rule is too firmly established to require lengthy citation. (See cases in 1 Hatcher’s Kansas Digest (Rev. Ed.) Appeal and Error, §§ 502-508.)
Other matters argued by plaintiff have been examined and found to be without merit. The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Hatcher, C.:
This appeal stems from a prosecution of defendant as principal in the second degree or accessory before the fact of the crime of manslaughter in the first degree.
The basic facts may be briefly stated. On the 5th day of August, 1965, the wife of the appellant gave birth to a boy child at the Kansas University Medical Center in Kansas City, Kansas. The birth was recorded as not unusual and the baby was released to its parents, the appellant and his wife, on August 10, 1965. When the child was released to its parents, the hospital records showed its condition as heathy and normal.
On or abouUthe 20th day of August, 1965, the child was readmitted to the Kansas University Medical Center in what was described as a battered and beaten condition. It subsequently died of this condition on August 21,1965.
The appellant was arrested after the doctors at the Kansas University Medical Center alerted the police. The defendant was charged with the crime of principal in the second degree or an accessory before the fact to manslaughter in the first degree.
The defendant was tried and convicted as charged. Hence this appeal.
Appellant first contends that the trial court erred in not discharging him because the state failed to prove venue.
The evidence clearly established the residence of the defendant as 2270 Russell Street, Kansas City, Kansas. The baby was at the residence of the appellant from August 10, to August 20, 1965, during which time the injuries were inflicted which resulted in its death. The baby was born and died in the Kansas University Medical Center, Kansas City, Kansas.
There is no merit in appellant’s contention. In State v. Fields, 182 Kan. 180, 318 P. 2d 1018, we held:
“It is not necessary to prove the jurisdictional facts of venue by specific question and answer that the offense occurred in the county. They may be established by other competent evidence in the record.” (Syl. 4.)
This court will take judicial knowledge of the fact that the city of Kansas City and the Kansas University Medical Center are in Wyandotte County, Kansas. (K. S. A. 60-409 (b) (4), 60-412.) In State v. Neil, 203 Kan. 473, 454 P. 2d 136, we stated:
“Although the record does not set out any direct evidence that the offenses were committed in Montgomery County, Kansas, the uncontradicted testimony shows they occurred in the city of Caney, Kansas. Under the provisions of K. S. A. 60-409 the trial court could take judicial notice that Caney is within the territorial boundaries of Montgomery County. Moreover, this court, under the provisions of K. S. A. 60-412, is empowered to take judicial notice thereof in this appeal.” (p. 476.)
The appellant next argues that the evidence is insufficient to sustain the verdict.
It would perhaps be of assistance if we first considered the rules under which this court considers the sufficiency of the evidence.
In considering the sufficiency of evidence to sustain a conviction, this court looks only to the evidence in favor of the verdict, it does not weigh the evidence and if the essential elements of the charge are sustained by any competent evidence the conviction stands. In State v. Dill, 182 Kan. 174, 319 P. 2d 172, we stated at page 175 of the opinion:
“We will examine the record to determine wjiether there is an entire absence of substantial evidence proving or tending to prove the essential elements of the crimes charged. If from all of the facts and circumstances disclosed by the evidence the jury might have reasonably drawn an inference of guilt, defendant’s motion for discharge was then properly overruled and the verdict of guilty will not be disturbed. (State v. Long, 148 Kan. 47, 79 P. 2d 837; State v. McCoy, 160 Kan. 150, 160 P. 2d 238; State v. Osburn, 171 Kan. 330, 232 P. 2d 451; State v. Haught, 180 Kan. 96, 100, 299 P. 2d 573.) In State v. Goetz, 171 Kan. 703, 704, 237 P. 2d 246, we stated that if the evidence tended to disclose that the offense charged was committed and the defendant committed it, the question was for the jury to decide, even though the evidence was weak.” (See, also, State v. Townsend, 201 Kan. 122, 439 P. 2d 70.)
We will search the record for tire purpose of determining if, from the facts and circumstances, a reasonable inference of guilt could be drawn.
Carol Ann Reese, a pediatric resident at the Kansas University Medical Center, testified that when the baby was discharged to its parents on August 10, 1965, “at that time the child was healthy and normal.” She described the baby when it was returned on August 20, 1965, as follows:
“Blue extremities and body. Mottled appearance. Pupils dilated. Skin had multiple second-degree burns on the buttocks and left leg. Not all on diaper area. Bruises and hematoma present over face, trunk and extremities. H. E. N. T., which means the'head, ears, nose and throat, were negative. Fundi were negative. Chest — there were coarse rhonchi bilateraly. Heart— irregular rate. No bowel sounds. No masses. Penis — the tip of the meatus was burned. Catheter was inserted and no urine was obtained. Extremities, as I had noted, were quite cyanotic in the previous description. . . .”
Another resident physician testified from his notes, which read: “Probably this child has been beaten.”
The doctor who performed the autopsy on the child stated:
“It is my further opinion that these traumatic lesions were inflicted upon the deceased by a person or persons unknown. . . .”
The mother of the child testified:
“Q. All right, now, let’s go back prior to tire 20th, the day you took it to the hospital, what, if anything, happened to cause this child to be taken to the hospital?
“A. Well, I fed it some sour milk and my husband started pushing on his stomach, and I told him to stop, and he got mad and he said, ‘Get the God damn hell out of here,’ and reached his hand to me.
“Q. What did you do?
“A. I moved. I got out of the way.
“Q. When did he push on its stomach? When was this, the 20th, the same day you took it to the hospital?
“A. No, it was the day before we took it to the hospital.
“Q. The day before, all right, and you had told him you had fed him sour milk?
“A. Yes, sir.
“Q. All right, when he was pushing on the stomach, how was he doing this?
“A. He was in a chair with arms on it.
“Q. The baby was?
“A. Yes, and he was leaning over it pushing with all his might on its stomach.”
She further testified that the appellant refused to take the baby to the hospital when he came home from work but they did take it that night. The witness related a conversation between her and the appellant before entering the hospital:
“Q. All right, while you were there, did you have any conversation with your husband?
“A. Well, before we went there, I said something to him, I didn’t know what to tell the people at the K. U. Medical Center, and so I told him—
"Q. Relate that conversation.
“A. I told him, I said, 1 don’t know what to tell them but that I had a seizure.’ He said, ‘Go ahead and tell them that.’ So, stupid me, I went ahead and told them I had a seizure.
“Q. Had you had a seizure?
“A. No, sir, I have not had a seizure on my baby, no, sir.
“Q. You told them this because you didn’t know what else to say?
“A. No, sir, I didn’t know what else to say. What would I have said with all the bruises and stuff all over his body?
“Q. Your husband agreed to have you say this?
“A. Yes, sir, he told me to go ahead, so I told them.
“Q. What conversation, if any, can you remember that your husband made or comment your husband made at the hospital?
“A. He said he hoped the little bastard died.”
The appellant attempted to convince the jury that the baby was injured when he accidentally dropped it on the sofa, but the jury did not see fit to believe him. The nature of the injuries were hardly consistent with injuries resulting from such a fall. The question was for the trier of facts, not this court on appellate review.
The appellant in the court below and in his specifications of error contended — “That the court erred in not instructing on 4th degree manslaughter as requested by the defendant.”
Appellant has changed his contention on appeal and now contends — “The court erred in failing to instruct the jury on manslaughter in the third degree.”
We pass the procedural question raised by the change in position and consider the contention on its merit.
In State v. McDermott, 202 Kan. 399, 449 P. 2d 545, we disposed of this question and we do not propose to extend the discussion further.
In the McDermott case, while considering when an instruction should be given as to a lesser offense, we stated:
“Defendant contended the killing was in the heat of passion without design to effect death and requested an instruction on third degree manslaughter. The court refused to give the instruction.
“The instructions in a criminal case are to be confined to the issues in the case as determined by the charge in the information and the evidence adduced at the trial. Failure to instruct the jury on some lesser degree of the crime charged is not ground for reversal if the evidence at the trial excludes a theory of guilt on tire lesser degree of the crime. In State v. Linville, 148 Kan. 142, 79 P. 2d 869, it was held reversible error to instruct on second degree manslaughter when the evidence adduced at tire trial failed to establish such crime as charged in the information. In State v. Hockett, 172 Kan. 1, 238 P. 2d 539, the defendant was charged with robbery in the first degree and it was held the court was not required to instruct on any lesser degree of the crime when the trial evidence negated guilt of a lesser degree. Similar holdings in first degree murder cases may be found in State v. Zimmer, 198 Kan. 479, 426 P. 2d 267, cert. den. 389 U. S. 933, 19 L. Ed. 2d 286, 88 S. Ct. 298, and State v. Hoy, 199 Kan. 340, 430 P. 2d 275.” (p. 401.)
Manslaughter in the third degree is defined by K. S. A. 21-413 as—
“The killing of another in the heat of passion, without design to effect death, by a dangerous weapon, . .
In the McDermott case we considered the term “heat of passion” in the following language:
“We must next determine the legal meaning and significance of the term ‘heat of passion.’ In 1 Wharton’s Criminal Law and Procedure (Anderson) § 275 it is said:
“ ‘When the defendant seeks to reduce his offense from murder to manslaughter on the ground that he acted in hot blood upon circumstances constituting legal provocation, it is necessary that he show that he was in fact provoked by circumstances constituting legal provocation. If the defendant has voluntarily committed homicide without in fact having been provoked into a passion, he is guilty of murder.
“ ‘The passion aroused by the provocation must be so violent as to dethrone die reason of the accused for the time being; it must prevent thought and reflection, and the formation of a deliberate purpose. The theory of the law is that malice cannot exist at the same time as passion of this degree, and that tire act of the defendant therefore cannot be considered the product of malice aforethought. Mere anger, in and of itself, is not sufficient, but must be of such a character as to prevent the individual from cool reflection and a control of his actions. . . .’ (p.583.)
“This court has said the term ‘heat of passion’ includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror. (State v. Linville, supra; State v. Jones, 185 Kan. 235, 341 P. 2d 1042.) However, in order for a defendant to be entitled to a reduced charge because he acted in the heat of passion his emotional state of mind must exist at the time of the act and it must have arisen from circumstances constituting sufficient provocation.” (p. 402.)
In the present case there is no evidence of any provocation stirring appellant to the heat of passion. The evidence would indicate that the injuries were inflicted over a period of time without any legal provocation or heat of passion.
A careful examination of the record discloses no error which would justify the granting of a motion for a new trial.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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|
The opinion of the court was delivered by
Schroeder, J.:
This is an appeal from the district court of Shawnee County, Kansas, in a criminal action wherein the defendant was convicted by a jury of receiving stolen property in violation of K. S. A. 21-549. Sentence was imposed in accordance with the provisions of K. S. A. 21-534 and the habitual criminal act (K. S. A. 21-107a).
Various trial errors are raised, the primary one being whether the testimony of an accomplice was properly received in evidence.
In the lower court Felix Lemon, a/k/a Bob Lemon (defendant-appellant) was charged in an information with receiving stolen property consisting of nineteen console model color television sets having a total value in excess of $10,000.
The evidence disclosed that on the 23rd day of August, 1967, a Topeka appliance store, known as Jack Boring’s, was burglarized and nineteen console model color television sets were stolen. The appellant and Charles Griffiths, a co-defendant, were engaged in the sale of these color television sets, some fourteen of them having been recovered by the Topeka police department. The sale of each of these sets had been traced to either the appellant or his co-defendant. The stolen television sets were sold from $200 to' $250 each and had a list price range between $550 to $1,000 per set.
Headquarters for the sales operation was the Sportsman Barber Shop in the 1300 block on Kansas Avenue in Topeka, where the appellant and Griffiths worked as barbers, Griffiths being the employee of the appellant.
At the time of the appellant’s trial Griffiths had pleaded guilty and was awaiting sentencing.
Griffiths testified that he, Ted Henry and J. R. Timmons were selling the television sets in question, and the money received for them was turned over to the appellant. Although the evidence is conflicting it appears that Griffiths, Henry and Timmons were to receive a sum of money for each set sold. Griffiths, however, rather than taking money for his services, took a television set. This set was found in his home and was confiscated by the police.
Griffiths testified the appellant had previously requested permission to store television sets in his garage, stating that the sets were coming from the Detroit riot area. Griffiths said he had been dealing with the appellant on pushing some color television sets that were later to come out of the Detroit riot area. Griffiths’ first contact with the television sets in question was at his garage shortly after the burglary of Jack Boring’s appliance store in the early morning hours of August 23, 1967. Upon seeing the sets in his garage Griffiths noticed Jack Boring’s stickers or tags on them. He removed the stickers or tags and destroyed them. Whereupon he insisted that the appellant move them from his garage. The sets were then removed by “two colored fellows” and taken to the basement of a country home in the 3700 block on Burlingame Road. Griffiths showed them the place to move the sets.
Griffiths’ testimony was that he made most of the sales, but on at least one of the sales he received payment for a set from Timmons and immediately, in the presence of Timmons, transferred the money to the appellant. This is confirmed by the testimony of Timmons. Theodore (Ted) Henry testified the appellant took him to a darkened basement in a rural Shawnee County home and sold him one television set, receiving $250 from him, and then the appellant aided him in loading two sets into a truck and the appellant took Henry to his home where he aided in unloading them.
Two witnesses, including Griffiths, testified the appellant tried to borrow $1,000 from them to pay for the sets. A banker testified that on the same date as the burglary of Jack Boring’s store, the appellant borrowed $1,500 from the bank, and within a week paid $1,000 of it back. Griffiths testified the appellant gave him $1,000 one or two days after the burglary of Jack Boring’s to give to “A colored fellow that came in the barber shop.”
Griffiths testified the color television sets were being marketed by the appellant, and that he was merely aiding the appellant in the sale of the sets, knowing they were stolen and where they came from; that all the money collected on the sale of sets by Griffiths was turned over to the appellant.
The appellant contends he was not afforded a fair and unbiased trial as defined by the Sixth, Fifth and Fourteenth Amendments to the Constitution of the United States and Section 10 of the Bill of Rights of the Constitution of the state of Kansas.
On this point he charges that the issue of guilt or innocence was not reliably determined in this case. He argues the only evidence adduced by the prosecution that the appellant actually knew the television sets in question were stolen property came from the co-defendant, Griffiths.
Griffiths had previously entered his plea of guilty to the charge of receiving stolen property and at the time of the appellant’s trial was awaiting sentencing upon such plea. By reason thereof it is argued by the appellant under such circumstances it should be apparent the co-defendant would have every reason to be as cooperative as possible with the prosecution in order to secure the best recommendation regarding his sentence, thereby making his reliability as a witness extremely suspect.
The foregoing argument coupled with the appellant’s attack upon several instructions given by the trial court (which the appellant has not seen fit to set forth in the record) leads the appellant to the conclusion that he was denied a fair trial because of the admission of the testimony of the co-defendant, Griffiths, in evidence.
The appellant’s argument is presented on the assumption that Griffiths’ testimony was the only evidence before the trial court linking the appellant to the offense. This approach excludes the testimony of J. R. Timmons, who saw Griffiths surrender the money paid by Timmons for a set he sold another to the appellant. It also excludes the testimony of Theodore Henry that the appellant had taken him in the nighttime to the basement of a rural home and helped him remove two of the sets. Henry also testified the appellant later called him by telephone and told him the sets “were stolen and to get rid of them.” In a later conversation with the appellant concerning the issuance of a subpoena, the appellant told Henry he ought to get out of town.
Timmons testified the appellant told him:
“ ‘When they serve you with a subpoena about the only thing you can do is that you can take a vacation or you can just disappear, you can get sick like some other guy.’ ”
The appellant ignores the testimony of Timmons and Henry favorable to the state on the theory that their entire testimony before the trial court was such as to indicate its unreliability.
These witnesses together with Griffiths were all implicated in the crime with which the appellant was here charged, and counsel for the appellant made the most of it at the trial and in argument to the jury. Henry and Timmons were both given immunity from prosecution by the state, and counsel for the appellant fully cross-examined them before the jury on it. Basically, the appellant’s attack is upon the credibility of these witnesses, but the extent to which their testimony was worthy of credence was for the jury to determine and not this court on appellate review.
The appellant’s attack upon several instructions given by the trial court is not adequately presented in the record for review. The record does not show any objections to instructions given, nor does the record presented for review set forth any of the instructions given by the trial court, not even those under attack. Under these circumstances the appellate court is in no position to consider a claim that improper instructions were given. (See, State v. Peasley, 179 Kan. 314, 295 P. 2d 627; State v. Johnson, 189 Kan. 571, 370 P. 2d 107; State v. Ellis, 192 Kan. 315, 387 P. 2d 198; and State v. Omo, 199 Kan. 167, 428 P. 2d 768.)
At the hearing on the motion for a new trial the appellant presented tape recordings of statements made by Griffiths and Timmons to the appellant in the privacy of the appellant’s automobile after the trial of the action. These tape recordings contained statements that were contrary to certain key testimony given by these witnesses at the trial which linked the appellant to the offense.
Each of these witnesses testified at the hearing on the motion for a new trial to the effect that he was in fear when the statements were made with only the appellant and the witness present; and that under the circumstances they would have said anything the appellant wanted them to say. The witnesses when in court under oath affirmed their prior testimony given at the trial of this matter. The trial court after hearing the motion for a new trial found the witnesses affirmed their prior testimony, and the evidence presented by the tape recordings did not show any material variation in their testimony. Under these circumstances we cannot say the trial court erred in denying the appellant’s motion for a new trial on the basis of the tape-recorded statements. (See, Martin v. Edmondson, 176 Kan. 374, 270 P. 2d 791.)
The appellant next contends the state did not prove the property alleged to have been stolen was actually stolen property, or that the appellant received such property knowing it to have been stolen.
The representative of Jack Boring’s who testified stated the color television sets taken from Jack Boring’s were either owned by or were under consignment to Jack Boring’s. The appellant argues if the sets were under consignment to Jack Boring’s, they were not the property of Jack Boring’s. Hence, it was not shown that a larceny actually occurred; “that it was not shown that it was not someone having a claim of ownership who committed the burglary and took the property.”
If the television sets in question were on consignment to Jack Boring’s, the store had a right to possession over all other persons. Proof of a greater right to possession than the thief is always sufficient proof of “ownership.”
The appellant’s contention that there is no proof he knew the sets were stolen flies in the face of evidence which the jury was entitled to give credence. The jury was entitled to give credence to evidence which would establish that approximately thirty days prior to the burglary of Jack Boring’s store, arrangements were made for several persons to try to sell color television sets which were supposed to be coming from the Detroit riot; that the appellant sought a storage place and did store the sets stolen from Jack Boring’s in Griffiths’ garage; that he caused the sets to be moved to a different location when directed; that he received money from the sale of the sets; took Henry to a darkened basement of a rural house where the sets were located, sold him one set and gave him possession of another and aided in delivery; instructed Henry to “get rid” of the sets; and was selling sets valued at between $550 to $1,000 for $200. All of this evidence was sufficient, if believed by the jury, to establish the crime charged.
The appellant contends he was improperly sentenced under the habitual criminal act. Counsel for the appellant states he never received notice of the state’s intention to proceed under the habitual criminal act, although he concedes the notice was filed in court and the county attorney certified that he mailed a copy to counsel for the appellant. It may be conceded the defendant in a criminal action is entitled to notice that the state intends to invoke the provisions of K. S. A. 21-107a. The appellant also concedes it may be shown that both the appellant and his counsel were aware that the habitual criminal act might possibly be invoked.
The trial court found the state had duly filed its notice of intention to seek sentencing under the provisions of the habitual criminal act. While the appellant’s counsel denied receiving a notice in the mail, the trial court found from the appellant’s own testimony on the motion for a new trial that he knew the state intended to seek sentencing under the habitual criminal act. Assuming, under these circumstances, counsel did not receive the notice, the appellant was present at the hearing with his attorney, and no contention is made that he did not have full opportunity to be heard on all matters under consideration, and to controvert the allegations that he had been convicted of a previous felony which would make him subject to the penalties of the habitual criminal act. (Hicks v. Hand, 189 Kan. 415, 369 P. 2d 250; and Burnett v. State, 199 Kan. 362, 429 P. 2d 923.)
The appellant contends his right to the effective assistance of counsel was thwarted by the trial court’s refusal to grant a continuance before trial, and by its refusal to order production by the prosecution for the use of appellant’s counsel of statements made by prosecution witnesses sometime prior to the trial.
The record establishes the complaint against the appellant in the instant case was filed in the court of Topeka on the 30th day of August, 1967; a preliminary examination conducted on the 6th day of November, 1967; that arraignment was had on the 12th day of January, 1968; and that trial was set for the 4th day of March, 1968. It was not until the day set for trial that a request for continuance was made. The appellant made no showing of cause other than that his father had a week or so earlier been operated. Under these ■circumstances, whether or not a continuance is granted is within the sole discretion of the trial court, and absent a showing of abuse of discretion such ruling will not be disturbed on appeal. The record here shows no abuse of discretion. (State v. Dickson, 198 Kan. 219, 424 P. 2d 274.)
The appellant relies upon the following quotation in Brady v. Maryland, 373 U. S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194:
“We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” (p. 87.)
The appellant also cites Giles v. Maryland, 386 U. S. 66, 17 L. Ed. 2d 737, 87 S. Ct. 793, as further explaining the Brady case.
The appellant argues the record reveals that a number of statements made by prosecution witnesses were withheld and suppressed by the prosecution, and that requests of counsel for the defense for the production of these statements were overruled by the trial court.
The state concedes it did not supply the appellant with copies of pretrial statements of witnesses against the appellant. The state did, however, provide the appellant with the pretrial statement of the co-defendant, Griffiths, for use during cross-examination. The statements taken by the state, of which the appellant complains, were taken at an inquisition conducted by the county attorney of Shawnee County, in which immunity was granted to some of the witnesses. The appellant complains of the fact that the witness, Henry, was not permitted to have counsel of his own at the inquisition, and the appellant’s counsel cross-examined the witness, Henry, to some extent on this point. The substance of Henry’s testimony as a result thereof was that his testimony might well have been different had he been permitted to have counsel present. Obviously, the appellant cannot assert as error a right which Henry may have had to counsel at an inquisition proceeding. (See, State, ex rel., v. American Oil Co., 202 Kan. 185, 446 P. 2d 754.)
Cross-examination of Henry established that he made no prior statement to the prosecution more favorable to the appellant than his testimony given under oath in court.
This court has heretofore held that a report compiled by a law enforcement agency in the course of its investigation into a criminal offense is quasi-private in character, and it was not error for the trial court to refuse a defendant’s motion to require the state to produce such a report in court for the defendant’s inspection and use in cross-examination of a witness whose statement was contained therein. (State, ex rel., v. Showalter, 189 Kan. 562, 370 P. 2d 408; State v. Hill, 193 Kan. 512, 394 P. 2d 106; and State v. Oswald, 197 Kan. 251, 417 P. 2d 261.)
The factual situation here presented does not warrant full consideration of the Federal authorities. Counsel for the appellant was given the prior written statement made by Griffiths to cross-examine Griffiths, and its use was fully developed showing that Griffiths had made prior inconsistent statements. The critical issue upon which the appellant sought the prior statements made by witnesses was the credibility of such witnesses whose testimony linked the appellant to the crime. Aside from Griffiths, the only other witnesses in this category were Timmons and Henry.
It has been impossible to make an intelligent review of the record presented by the parties herein. Favorable portions of the testimony in the transcript have been excerpted by the appellant in his abstract, other portions favorable to the prosecution have been excerpted by the state in a counter abstract, which the .appellant challenged in a reply with further excerpts. Of necessity, the court procured a copy of the transcript from the lower court -to make its review of the evidence.
A review of the transcript discloses the testimony of Timmons and Henry to be rather shoddy. Timmons was cross-examined on •statements he made at the preliminary hearing disclosing inconsistent statements made by this witness on vital points in his testimony. Henry’s capability of making inconsistent statements was also brought out on cross-examination by appellant’s counsel, as heretofore indicated. Henry’s overall testimony may well have been -interpreted by the jury as failing to implicate the appellant.
Under these circumstances prior statements made by the witnesses could not have assisted the appellant more than cross-examination had accomplished. Actually, the state offered to supply the prior statements of these witnesses to the appellant on the condition that the appellant put them in evidence, but this offer was declined. The prior statements made by these witnesses were not used by the state to examine the witnesses on the witness stand, and nothing in the record of trial even suggests the prior statements made by Timmons and Henry were favorable to the appellant -within the meaning of Brady or Giles.
Assuming the appellant was entitled to a copy of the prior written statements made by Timmons and Henry at tbe inquisition, a review of the transcript discloses the appellant was not prejudiced by the order of the trial court denying the appellant’s motion for their production.
For those interested in pursuing the point further, see, in addition to the Brady and Giles cases cited by the appellant: Jencks v. United States, 353 U. S. 657, 1 L. Ed. 2d 1103, 77 S. Ct. 1007; Palermo v. United States, 360 U. S. 343, 3 L. Ed. 2d 1287, 79 S. Ct. 1217; Rosenberg v. United States, 360 U. S. 367, 3 L. Ed. 2d 1304, 79 S. Ct. 1231; Duncan v. United States, 379 F. 2d 148 (D. C. Cir. 1967); Daniel v. State, 118 Ga. App. 370, 163 S. E. 2d 863; Armstrong v. State, 214 So. 2d 589 (Miss. 1968); State v. White, 15 Ohio St. 2d 146, 239 N. E. 2d 65; and Noel v. State, 215 N. E. 2d 539 (Ind. 1966), cert. denied 385 U. S. 934, 17 L. Ed. 2d 214, 87 S. Ct. 294.
Finding nothing on appellate review of the record which warrants a reversal, the judgment of the lower court is affirmed. | [
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|
The opinion of the court was delivered by
Fatzer, J.:
At issue is the construction and application of K. S. A. 8-135 (c), and particularly subsection (6), with respect to the sale and delivery of a 1962 three-ton used truck-tractor, hereafter re ferred to as the truck, where no certificate of title, stating all Hens or encumbrances thereon, was assigned to the purchaser at the time of delivery of the truck.
Following initial argument and conference of the court, this case was ordered restored to the docket. In their briefs and on oral argument, counsel was requested to advise the court of their respective views of the law of this state on specific questions propounded. Briefs were filed and reargument was had, and the case now stands for decision.
The story of this controversy commences on January 14, 1964, at the Button Chevrolet Company, Plainville, Kansas. On that date, Button, as seller, sold the truck to Donald W. Prickett, as buyer, and to the plaintiff, Elvin Melton, as co-buyer, for the total time balance price of $8,832.90, to be paid in 30 monthly installments of $294.43, commencing on February 26, 1964. The agreement was reduced to writing on a General Motors Acceptance Corporation retail installment contract, and was signed by Button as seller, Prickett as buyer, and Melton as co-buyer.
The truck had previously been sold to one Donald E. Wise. Wise and Prickett signed a retail installment contract for purchase through Button, which was assigned to GMAC. Later Wise was killed in an accident, and GMAC, with Prickett’s approval, placed the truck in Button’s garage. By word of mouth, it was made known the truck was for sale. Melton was contacted in PhilHpsburg and went to Plainville to talk with Prickett who said he was the owner of the truck. Melton decided to purchase the truck.
Because Prickett was obligated to GMAC on the Wise contract and had necessary credit requirements, he agreed with Melton to pay the difference between the monthly installments of $294.43, which would be due under the GMAC contract, and the sum of $253.73 which Melton was willing to pay.
Prickett and Wise had previously paid $1,525.77 on their contract with GMAC, and that amount was applied as a down payment on the Prickett-Melton contract. No charge was included in the contract for fire insurance and other risks on the truck, but the seller or buyer were required to furnish satisfactory evidence the truck was adequately covered by such “required insurance.” There was no requirement the co-buyer procure such insurance. The contract further provided that insurance settlement should be payable to the 'buyer, seller, or seller’s assigns, as their interest may appear, and that:
“(b) Proceeds of the aforesaid requirement car insurance, by whomsoever -procured, shall be applied toward replacement of the property or payment of -this obligation at the option of the seller.”
Neither Button nor Prickett purchased insurance to cover fire and •other risks on the truck.
GMAC’s representative was present during the Prickett-Melton negotiations, and was aware of all transactions concerning the truck, including Melton’s agreement with Prickett to purchase the same. He was also aware the registered title to the truck had been issued in the name of Prickett’s deceased father, W. L. Prickett, and that Iris unacknowledged signature was all that appeared on the assignment on the back of the certificate of title. Thus, Button made no assignment of the certificate of title stating the liens and encumbrances thereon, to either Prickett or Melton upon delivery of the truck to Prickett.
On the same day, January 14,1964, and for value received, Button .assigned and transferred all his right, title and interest in the contract to GMAC and authorized it to collect and discharge the :same.
Two days later, and on January 16, 1964, Prickett, as seller, and Melton, as purchaser, entered into a written contract designated “Conditional Sales Contract of Personal Property,” by which Prickett sold the truck to Melton for the purchase price of $6,500, upon the condition that possession of the truck would be delivered to Melton but title thereto would remain in Prickett until Melton made ■30 monthly payments of $253.73, beginning February 26, 1964. When 30 payments had been made in accordance with the contract, Prickett agreed to deliver to Melton “complete and clear title” to the truck. A St. Paul bed and hoist owned by Melton was de•scribed in the contract as part of the purchase price. Melton agreed to carry life and health and accident insurance sufficient in the event of his death or disability to pay the unpaid balance of the contract. The sum of $3.73 was included in the monthly payments to purchase such insurance. The contract contained no provision that Melton purchase insurance covering fire and other risks on the truck, nor did it require a loss payable clause in favor •of Prickett or GMAC, in the event Melton purchased such insurance. .Prickett agreed to make all monthly payments he and Melton were obligated to make to GMAC, upon the condition Melton regularly made his payments to Prickett, and further, that Prickett would pay off GMAC’s lien on the truck at any time Melton paid his obligation in full to Prickett.
Prickett is president and general manager of Prickett & Son, Inc., of Plainville, a Kansas corporation, which is the holder of a certificate of convenience and necessity issued by the State Corporation Commission. It is regularly engaged as a common carrier in the transportation of livestock, grain and other commodities in central and northwest Kansas. In addition to owning its trucks, it leases truck-tractors from others, who in turn operate under its KCC authority.
The record indicates Melton purchased the truck for the purpose of leasing it to Prickett, and for him to qualify financially, Prickett signed the GMAC contract with him. Prickett states the reason the registered title to the truck was placed in the name of W. L. Prickett was to enable Wise, and later Melton, to prorate their truck registration fees with the Motor Vehicle Department, and to permit Prickett & Son’s cargo and public liability insurance on file with the State Corporation Commission to be effective on Melton’s truck.
Possession of the truck was given to Melton, but Prickett made no assignment of title noting all liens and encumbrances thereon, when he delivered the truck to Melton, as required by 8-135 (c). Title was never delivered to Melton.
Thereafter, Melton procured insurance from Hartford Fire Insurance Company covering the truck for fire and other risk for actual cash value. Melton was the sole beneficiary and there was no loss payable clause in favor of either Prickett or GMAC.
The truck was destroyed by fire on December 21, 1964. Prior to the fire, it had an actual cash value of $6,000. Under the terms of its contract, GMAC repossessed the truck, and the court found it had a salvage value of $288. On February 12, 1965, Hartford informed Melton it was not liable for the loss on the ground that, at the time of the fire, the truck was being operated outside the 50-mile radius limit contained in the policy, and it was the subject of a conditional sales contract not specifically described in the policy.
On February 19, 1965, Melton employed Stowell & Stowell as his attorneys to secure a settlement with Hartford. A settlement was achieved and Hartford agreed to pay Melton $3,118.92, upon Melton’s payment of an additional premium of $181 for operating outside the 50-mile limit, to be deducted from Hartford’s payment. However, Hartford refused to comply with its agreement with Melton and on January 17, 1966, wrote GMAC, Prickett and Melton no coverage was provided.
On January 25, 1966, Melton commenced this action against Hartford for breach of its contract of settlement, and made GMAC and Prickett parties defendant. On the same date, Melton executed a written retainer with his attorneys stating the terms of the employment, thus creating a lien in their favor (K. S. A. 7-108, 7-109), upon any money paid by Hartford by way of settlement, judgment or otherwise. A copy thereof was duly served upon counsel for the defendants in open court. On a date not disclosed by the record, Hartford paid Melton and his attorneys $3,118.92, which was placed in an escrow account.
In view of conclusions hereafter announced, we deem it unnecessary to detail the various pleadings filed by the parties except to say GMAC’s answer and counterclaim alleged the execution of the Button contract on January 14, 1964, a copy of which was attached as Exhibit A, and of its assignment to GMAC; that Prickett and Melton were indebted to GMAC in the sum of $4,122.02 for the unpaid balance thereon, and the prayer was for judgment against Prickett and Melton in that amount. GMAC further prayed for an order giving it a “lien and first right” to the proceeds of any judgment Melton might recover against Hartford, or obtain in a settlement. Prickett’s answer and counterclaim alleged the execution of the Prickett-Melton contract on January 16, 1964, and a copy thereof was attached as an exhibit; that as a result of such contract Melton was indebted to him in the sum of $3,805.95 for which he was entitled to recover; that Melton had in his possession the St. Paul bed and hoist which should be delivered to Prickett; that GMAC had a first and prior lien on the proceeds of insurance under Exhibit A, and that any payment made by Hartford to Melton should be paid to GMAC, since it was orally understood by all the parties when the contracts were executed on January 14, and 16, 1964, that Melton would procure fire insurance on the truck. Prickett sought judgment against Melton for the sum of $3,805.95, being the unpaid balance due on the conditional sales contract; for delivery of the St. Paul bed and hoist, and for an order directing that all proceeds from the insurance settlement with Hartford be paid to GMAC to satisfy the terms of the retail installment contract. Melton s reply denied he executed the contract attached to GMAC’s answer and counterclaim; he alleged that both contracts for the sale of the truck executed on January 14, and 16, 1964, were in violation of 8-135 (c) (6), since the certificate of title to the truck was not delivered to the purchaser as required by law; that the contracts were fraudulent and void, and formed no basis for the recovery of any judgment against him.
The district court ordered Melton to pay into court the amount of money he received from Hartford in settlement of his claim, less the sum of $181 he was directed to pay as an additional premium. By agreement of all parties, the action against Hartford was dismissed with prejudice.
Upon trial to a jury, it found that Melton signed the retail installment contract shown as GMAC’s Exhibit A. It further found that Prickett had previously and without authority of the plaintiff, gone upon his premises and removed the St. Paul bed and hoist and a dump box frame and cylinder which were the property of Melton, and the jury fixed the value of those items at $1,200.
The district court overruled Melton’s motion for a directed verdict against Prickett for the reason the certificate of title to the truck was not delivered to him on January 16, 1964, with the proper assignment thereof, noting the liens and encumbrances thereon, and that Prickett possessed the title with the signature of W. L. Prickett, deceased, on the back of the assignment in blank, all of which was in violation of law, and formed no basis for the recovery against him. It likewise overruled Melton’s motion for a directed verdict against GMAC for the same reason.
In substance, the district court rendered judgment in favor of GMAC on its counterclaim, and against Prickett and Melton in tire sum of $4,122.02, and held it had a prior lien on the insurance proceeds in the net amount of $2,922.82; that the attorneys’ lien of Stowell & Stowell should be denied; that Prickett be given judgment against Melton in the sum of $3,805.95, and that Melton be given judgment against Prickett for the value of the items the jury found to be reasonably worth $1,200.
As indicated, the truck was originally sold to Wise, and Prickett acted as co-buyer to qualify Wise for financing with GMAC. Presumably, Button executed a bill of sale to W. L. Prickett for the new truck (8-135 [c] [3]) rather than to Wise, since the truck was duly registered with the Motor Vehicle Department, and a certifi cate of title was issued in the name of W. L. Prickett. But no lien-holder was named. Later, and following the death of W. L. Prickett, his unacknowledged signature appeared on the assignment in blank on the back of the certificate of title. Thus, W. L. Prickett, deceased, was the owner of the truck at all times here material.
Following Wise’s death, the truck was redelivered to Button by GMAC with Prickett’s approval. Later, and on January 14, 1964, Button “sold” the truck to Prickett and Melton, but executed no bill of sale stating the lien or encumbrance thereon when he delivered the truck to Prickett. Two days later, Prickett sold the truck to Melton as heretofore related, but failed to deliver the certificate of title, with an assignment thereof, stating the liens or encumbrances thereon, when he delivered the truck to Melton. Thus, the truck was “sold” twice on a GMAC-Prickett contract and once on a Prickett-Melton contract, all in utter disregard of 8-135 (c) which reads, in part:
“(c) Certificate of title: No vehicle required to be registered hereunder shall be registered or number plates issued therefor, either original issue, or duplicate, unless the applicant for registration thereof shall at the same time present satisfactory evidence of ownership and make application for an original certificate of title for such vehicle.
“(1) Said application for certificate of title shall be made by the owner or his agent upon a blank form to be furnished by the department and shall contain all liens of encumbrances thereon, and such other information as the department may require . . .
“(2) The certificate of title shall contain upon the reverse side a form for assignment of title to be executed by the owner before a notary public or some other officer authorized to administer an oath. This assignment shall contain a statement of all liens or encumbrances of whatever nature and kind thereon at the time of assignment . . .
“(3) Dealers shall execute, upon delivery to the purchaser of every vehicle, a bill of sale stating the lien or encumbrances thereon, in accordance with form prescribed by the commission for all vehicles sold by them . .
“(5) It shall be unlawful for any person to operate in this state a vehicle registered under the provisions of this act, or to transfer his title to a vehicle to any person or dealer, unless a certificate of title shall have been issued as herein provided. In the event of a sale or transfer of ownership of a vehicle for which a certificate of title has been issued, the holder of such certificate of title shall endorse on the same an assignment thereof, with warrranty of title in form prescribed by the commission and printed thereon and the transferor must deliver the same to the buyer at the time of delivery to him of said vehicle . . .
“(6) It shall be unlawful for any person to buy or sell in this state any vehicle required to he registered hereunder, unless, at the time of delivery hereof there shall pass between the parties such certificate of title with an assignment thereof, as herein provided, and the sale of any vehicle registered under the laws of this state, without the assignment of such certificate of title, shall be fraudulent and void.” (Emphasis supplied.)
Subsection (c) (5) also provides the specific means for titling a “security interest.” (K. S. A. 84-1-201 [37]; 8-126 [«].) It does not provide that a title may be “held for ransom,” but, rather, that a security interest should be made a part of the title. It reads, in part:
“. . . Whenever a person acquires a chattel mortgage on a vehicle subsequent to the issuance of the original tide on such vehicle, he shall require the holder of such certificate of tide or his agent to surrender the same and sign an application for a mortgage title in form prescribed by the department and upon such surrender, shall immediately deliver said certificate of tide, application, and a fee of one dollar ($1) to the department. Upon receipt of the said certificate of title, application, and fee, the department shall, without delay, issue a new certificate of title showing the liens or encumbrances so created . . .”
Where the legislature speaks upon a particular subject over which it has constitutional power to legislate, public policy is what the statute enacts. (State, ex rel., v. Anderson, 195 Kan. 649, 408 P. 2d 864.) And so with the Registration of Motor Vehicles Act. Section 8-135 specifically regulates the registration, transfer, and sale of motor vehicles and its provisions are written into the contract for the sale of every vehicle in this state. The statute is both remedial and penal or punitive in nature. Its violation is made a criminal offense (K. S. A. 8-142, 8-149), and a sale of a vehicle in violation of its terms is declared fraudulent and void. In Elrod v. Preferred Risk Mutual Ins. Co., 201 Kan. 254, 440 P. 2d 544, it was held:
“The act or omission made unlawful by K. S. A. 8-135 (c) (6) and which renders a sale fraudulent and void is the delivery of the vehicle to the purchaser without assignment of the certificate of title.” (Syl. If 1.)
This court has held that the provisions of the statute are mandatory in their requirements and are to be literally interpreted and strictly enforced to render void all sales of motor vehicles required to be registered, where no certificate of title with an assignment thereof, containing a statement of all liens or encumbrances thereon, is not delivered by the seller to the purchaser at the time of the delivery of the vehicle. In Maryland Cas. Co. v. American Family Insurance Group, 199 Kan. 373, 429 P. 2d 931, it was said:
“. . . [E]ven if a buyer is a conditional vendee, and thus is an ‘owner’ as defined by the statute, that fact does not free him or the vendor from the regulatory provisions of the act relating to registration, sale and transfer of a motor vehicle. For example, not only are the parties subject to K. S. A. 8-135 (c) (6), but also to K. S. A. 8-135 (c) (2), specifying an assignment of certificate of title shall contain a statement of all liens or encumbrances of whatever nature and kind; K. S. A. 8-127, requiring every ‘owner’ to secure registration of a motor vehicle intended to be operated in this state; and K. S. A. 8-135 (c), compelling the new ‘owner’ to present either a bill of sale, if the motor vehicle is new, or a certificate of title properly endorsed by the seller, if the vehicle is a used one, in order to register the vehicle.
‘‘Since the enactment of what is now K. S. A. 8-135 (c) (6) (L. 1937, ch. 72, § 5), we have numerous decisions holding that the statute means just what it says, and failure to comply therewith renders the sale of an automobile fraudulent and void . . .” (1. c. 378, 379.)
The purpose of the statute is to require the issuance of a certificate of title for every vehicle required to be registered under the Act (Wilcox Trailer Sales, Inc. v. Miller, 200 Kan. 315, 320, 436 P. 2d 860), and to provide a means whereby one may readily ascertain who is the owner of a motor vehicle, thus protecting the public from the evils arising from the unregulated use, transfer and sale of such a vehicle. In Maryland, supra, it was further said:
“. . . The statute was enacted not only to protect the public against fraud and prevent traffic in the sale of stolen automobiles but also to lend stability and certainty in the business climate surrounding each transaction . . .” (1. c. 379.)
GMAC and Prickett rely upon Crow v. Hershberger, 170 Kan. 492, 226 P. 2d 846. The case before us does not fall within the rule of that case. That was an action involving possessory rights to a motor vehicle (Maryland, supra), and it was held that one whose name was not on the certificate of title and who had a valid interest in the vehicle was not barred from asserting ownership because title was in another. But, see, Stebbins v. Heidebrecht, 186 Kan. 484, 350 P. 2d 783.
As we have seen, a certificate of title was issued for the truck in question. Under the provisions of 8-135 (c) (5), it was unlawful to sell or transfer ownership of the truck without the holder of such certificate of title assigning and delivering the title to the purchaser at the time of delivery of the vehicle. There is no contention that was done. Likewise, subsection (6) made the purported sale of the vehicle by Button to Prickett, represented by the contract assigned to GMAC, fraudulent and void, and also made the purported sale of the truck by Prickett to Melton fraudulent and void. In Roddy v. Hill Packing Co., 156 Kan. 706, 137 P. 2d 215, it was said:
“It is elementary law that a contract obligating the parties or either of them to violate a penal statute is unenforceable and void; and the breach of such contract is damnum absque injuria — a matter for which the law provides no redress. A long line of well-considered cases has committed this court to the rule that where a statute expressly provides a violation thereof shall be a misdemeanor, a contract made in direct violation of the same is illegal and there can be no recovery thereon although such statute does not in express terms prohibit the contract or pronounce it void. (Setter v. Alvey, 15 Kan. 157; Ainsworth v. Miller, 20 Kan. 220; Finney v. Bank, 68 Kan. 223, 75 Pac. 119; Ridgway v. Wetterhold, 96 Kan. 736, 153 Pac. 490; Thacher v. Smith, 103 Kan. 641, 175 Pac. 983; Morris v. Firemen’s Ins. Co., 121 Kan. 482, 247 Pac. 852; School District v. Roanoke State Bank, 126 Kan. 122, 267 Pac. 35; Ewing v. Halsey, 127 Kan. 86, 272 Pac. 187; Bourbon County Comm’rs v. Miller, 132 Kan. 52, 294 Pac. 863; National Bank v. White, 133 Kan. 490, 1 P. 2d 257; Cook v. Donner, 145 Kan. 674, 66 P. 2d 587.)” (1. c. 715.)
GMAC stands in the shoes of Button, and it has no greater right to enforce its contract than has Button. (General Motors Acceptance Corp. v. Davis, 169 Kan. 220, 218 P. 2d 181, 18 A. L. R. 2d 808.) Giving the provisions of the statute a literal and mandatory interpretation, we must hold that neither GMAC nor Prickett has any lawful right to the fruits of an unlawful contract and cannot recover the unpaid purchase price alleged to be due thereon. The district court should have dismissed the counterclaims of both GMAC and Prickett. When an action has been brought on a contract and during the course of the trial it becomes apparent that the contract sued on is in violation of law, it is the duty of the district court to dismiss the action. (Sage v. Oil Country Specialties Mfg. Co., 138 Kan. 501, 27 P. 2d 542; Ditzen v. Given, 139 Kan. 506, 32 P. 2d 448; Brumm v. Goodman, 164 Kan. 281, 286, 188 P. 2d 913.)
It is conceded by the parties that Melton had an insurable interest in the truck when he procured the fire insurance policy from Hartford. (Weaver v. Hartford Fire Ins. Co., 168 Kan. 80, 211 P. 2d 113; Maryland Cas. Co. v. American Family Insurance Group, supra.) But the point becomes immaterial because Hartford, following the commencement of Melton s action, paid him the amount agreed upon to settle the litigation, and all parties agreed to Hartford’s dismissal from the action with prejudice.
GMAC argues that if the contract assigned to it is declared fraudulent and void (8-135 [c] [5] and [6]), it is nevertheless entitled to a lien and first right to the proceeds of the insurance settlement. As indicated, the contract contained language that proceeds of required insurance, by whomsoever procured, should be applied toward payment of the obligation. It argues it is entitled to have the insurance provisions of its contract enforced, and that the court rightly ordered the proceeds applied to its obligation. We do not agree.
Where the complaining party can establish his claim without relying on the illegal transaction, it is the general holding of courts that he can recover; but if it requires the aid of the illegal contract or transaction, he cannot. (Surety Co. v. Brick Co., 73 Kan. 196, 84 Pac. 1034; Ridgway v. Wetterhold, 96 Kan. 736, 153 Pac. 490.) GMAC’s contract is entire. It cannot stir a step but through its fraudulent and void contract (8-135 [c] [5] and [6]), and it cannot enforce its claim to the insurance proceeds. In order to- maintain such a claim, it was necessary to allege and prove the illegal contract, which, from the facts alleged and admitted, was unlawful and fraudulent and void. A contract which is fraudulent and void by statute and prohibited by law, may not be used as the basis of recovery in an action by a party who acquired his rights with full knowledge of the facts which rendered the contract fraudulent and void. It is futile to say that conduct of GMAC, which is unlawful and the road to prison on the criminal side of the court, may be made lawful on the civil side of the court, and entitle it to the proceeds of Melton’s independent contract with Hartford.
Melton contends the district court erred in holding he had no recourse against Prickett for his alleged fraud. Melton sought to recover the sum of $3,750, being the amount paid Prickett under the Conditional Sales Contract. The point is not well taken. Melton’s purported claim for relief was made more than two years after January 16, 1964, and it was barred by the statute of limitations. (Gurley v. Broadway Sales Co., 184 Kan. 179, 334 P. 2d 312, Syl. ¶ 3.)
The judgment of the district court is reversed with directions to dismiss the counterclaims of GMAC and Prickett and to set aside GMAC’s judgment against Prickett and Melton, and Prickett’s judgment against Melton, since they were based upon fraudulent and void contracts. The district court is further ordered to ascertain the amount due Stowell & Stowell by reason of their attorneys’ lien, which is conceded to be sufficient both in terms of employment and service of the lien, and to enforce the same; to sustain the judgment entered in favor of Melton and against Prickett, and to proceed in accordance with the views expressed in this opinion.
It is so ordered.
Fontron, J., concurs in the result.
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Green, J.:
On appeal, the defendants, Centennial Park, LLC, Bradley D. Vince, and Richard H. Sailors, challenge the trial court’s summary judgment granted in favor of First National Bank of Omaha as successor by merger to First National Bank of Kansas (FNB). Specifically, the defendants raise four arguments on appeal: (1) that equitable principles should have prevented FNB from accelerating the defendants’ loan debt obligation even though FNB was entitled to accelerate the loan under the terms of the promissory note; (2) that thé trial court erred when it found that the defendants had not substantially performed under the terms of the loan documents and therefore had committed a material breach of the contract; (3) that FNB waived its right to accelerate the loan debt when it accepted the defendants’ late payment of $9,349 by depositing the check in its account; and (4) that FNB breached the implied covenant of good faith and fair dealing when it sent the defendants a billing statement requiring a principal payment of $1,350,000. We disagree.
First, the equitable principle that the defendants rely on—mistake-—does not apply here because there was no mistake made. Second, tire trial court correctly held that the defendants had not substantially performed under the terms of the note and the loan documents, and, therefore, had materially breached the contract. Third, FNB did not waive its right to accelerate the loan debt when it accepted the defendants’ late payment because the parties’ note contained multiple anti-waiver provisions. Finally FNB did not breach the implied covenant of good faith and fair dealing when it sent the defendants a billing statement requiring a principal payment of $1,350,000. Even though the trial court determined that the defendants did not owe a principal payment of $1,350,000 on April 10, 2010, the trial court found that Centennial Park owed an unpaid balance of $176,880.57 on that date. Accordingly, we affirm.
Generally, the underlying facts of this case are undisputed. On May 7, 2008, FNB entered into a loan agreement with the defendants. The defendants wanted this loan to start a commercial real estate development project located on the borders of Johnson County, Kansas, and Jackson County, Missouri. Under the terms of the promissory note (note), FNB agreed to loan the defendants $9,716,600. The note contained the following payment terms:
“(1) Monthly installments of accrued and unpaid interest shall be due and payable on the tenth day of each month commencing with the payment due on May 10, 2008; (2) A principal payment in a minimum amount of $1,350,000.00 on or before April 10, 2010; and (3) A final payment of all unpaid principal and all accrued and unpaid interest shall be due and payable April 10, 2011.”
The note was secured by a document entitled “Amended And Restated First Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing” that was signed by the' defendants’ manager on May 7, 2008. The parties also executed other loan documents that day, including: a construction loan agreement and personal guarantees executed by Centennial Park’s managing members, Bradley D. Vince and Richard Sailors. Centennial Park and the guarantors did not negotiate any changes to the documents previously listed before they were signed by the parties. Under the terms of the construction loan agreement, FNB agreed to release part of its collateral each time lots in the development were sold in exchange for 75 percent of the net proceeds of sale. For more than a year, the parties’ relationship continued as planned.
By the end of the second anniversary of the loan, May 7, 2010, the defendants had paid FNB $1,173,119.43 in principal payments. On March 31, 2010, FNB sent Centennial Parle an automated invoice statement that indicated a payment of $1,350,000 was required for “Current Principal.” After Centennial Park received the statement, defendant Vince, a Centennial Park managing member, contacted FNB’s vice president, Christopher Willis, to ask about the statement. Willis told defendant Vince that he was unaware of the statement and that he was surprised such an amount would be due. The next morning, Willis sent an email to defendant Vince’s attorney. In the email, Willis changed his position from tire previous day. Specifically, Willis stated that his previous recollection on whether a $1,350,000 principal payment was required was “faulty” and he “did not remember this principal reduction payment, but it was clearly required by the terms of the Note.”
The defendants failed to make any additional payments on the loan on or before April 10, 2010. Because the terms of the defendants’ note required a minimum principal payment of $1,350,000 on or before April 10, 2010, and it had paid only $1,173,119.43, the defendants were in default according to the terms of the note. Although the terms of the note gave FNB the authority to accelerate the loan immediately after default and without notice, FNB did not accelerate tire loan debt on April 10, 2010.
On April 23, 2010, FNB received the proceeds of a lot sale in Centennial Park’s development project in the amount of $167,531.49. The proceeds brought the defendants’ total principal paid balance to $1,340,650.80, which was $9,349 short of the amount that was due on April 10, 2010. On May 17, 2010, FNB sent the defendants a default letter stating that their account was delinquent for its failure to pay $1,350,000 on April 10, 2010. Even so, FNB still did not accelerate the loan then. Instead, FNB told the defendants that they would be allowed to cure the default by delivering a plan, acceptable to FNB, at its sole discretion, to cure tire default on or before May 31, 2010. The letter also told the defendants that FNB would accelerate the loan debt on May 31, 2010, without further notice if the defendants failed to deliver an acceptable plan. Although the defendants offered a plan to cure the default, FNB apparently did not feel that the plan was acceptable, and on June 1, 2010, FNB told the defendants that it was accelerating the loan debt.
On September 17, 2010, defendant Vince’s attorney sent FNB’s attorney a letter concerning the payment dispute along with a check for $9,349.20. The check represented the difference between $1,350,000 and $1,340,650.80 before FNB accelerated the loan on June 1, 2010. FNB accepted the check and deposited it in its account.
On August 6,2010, FNB sued Centennial Park and it guarantors, Vince and Sailors. Eventually, defendants Centennial Park, Vince, and Sailors, collectively moved for summary judgment. FNB then filed a competing motion for summary judgment. After the trial court conducted multiple hearings, it granted FNB’s summary judgment motion and denied Centennial Park’s summary judgment motion. The trial court’s final judgment order granted FNB the following: (1) damages of $7,239,654.14 (principal), $550,587.57 (accrued interest), $1,659,087 (per diem interest), and $123,071.62 (attorney fees and costs) against Centennial Park; (2) judicial foreclosure of the Kansas portion of the Centennial Park property; and (3) damages of $7,239,654.14 (principal), $550,587.57 (accrued interest), $1,659,087 (per diem interest), and $123,071.62 (attorney fees and costs) against defendants Vince and Sailors, jointly and severally.
After an additional hearing, the trial court denied defendants Centennial Park, Vince, and Sailors’ motion to reconsider.
Should equitable principles have prevented FNB from accelerating the defendants’ loan debt obligation even though FNB was entitled to accelerate the loan based on the terms of the promissory note P
The defendants first argue that the trial court erred when it refused to prevent acceleration of its loan debt obligation under equity principles. Conversely, FNB maintains that the undisputed material facts defeat the defendants’ equity arguments and that the trial court did not abuse its discretion when it denied the defendants’ equity arguments.
The defendants expressly concede in their brief that they technically defaulted on their loan obligation on April 10, 2010: “It was clear error for the district court not to alleviate [the defendants] from this technical default.” The defendants’ concession is supported by the record on appeal. As mentioned earlier, paragraph three of the note provided that “a principal payment in a minimum amount of $1,350,000.00 [was due] on or before April 10, 2010.” (Emphasis added.) Moreover, paragraph seven of the note provided: “This Note shall be in default upon the occurrence of any one of the following events (‘Event of Default’): (a) if any payment of principal or interest is not made when the same becomes due and payable.”
By April 10, 2010, the defendants had paid only $1,173,119.43 in principal payments. Because the terms of the defendants’ note required a minimum principal payment of $1,350,000 on or before April 10, 2010, and they had not paid that amount, the defendants were in default under the note when they failed to pay the amount due on that date. After default, FNB was allowed to accelerate the loan debt obligation under the note’s acceleration clause, which stated the following:
“If this Note is in default, then upon and after such default the holder hereof shall have the right, exercisable at such holder’s discretion, to declare tire entire unpaid principal amount and all accrued interest due hereunder immediately due and payable without notice ... to the undersigned, and [FNB] shall have all the remedies available to it at law or in equity for the collection of the amounts due. Failure at any time to exercise this option shall not constitute a waiver of the right to exercise the same at any other time.” (Emphasis added.)
FNB did not accelerate the loan debt obligation immediately, and on April 23, 2010, FNB received the proceeds of a lot sale in Centennial Park’s development project in the amount of $167,531.49. Even so, Centennial Park’s proceeds still did not bring its principal payments to the amount required under the note, and after notice from FNB, FNB accelerated the loan on June 1, 2010.
The defendants do not dispute that the terms of the promissory note allowed FNB to accelerate the loan balance after default. Instead, the defendants maintain that FNB should have been prohibited from accelerating the loan under equitable principles. Specifically, the defendants argue that the trial court should have disallowed the acceleration here because of FNB’s “accident, mistake, or inequitable conduct.” Thus, we must answer the following question: Did equitable principles prevent FNB from accelerating the defendants’ loan debt obligation even though it was entitled to accelerate the loan under tire terms of the note?
Under Kansas law, “the application of an equitable doctrine rests within the sound discretion of the trial court. [Citation omitted.]” National City Mortgage Co. v. Ross, 34 Kan. App. 2d 282, 287, 117 P.3d 880, rev. denied 280 Kan. 984 (2005). A judicial action constitutes an abuse of discretion if the action: (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012) (criminal); Critchfield Physical Therapy v. The Taranto Group, Inc., 293 Kan. 285, 292, 263 P.3d 767 (2011) (civil). Moreover, an abuse of discretion occurs if discretion is guided by an erroneous legal conclusion or goes outside the framework of or fails to consider proper statutory limitations or legal standards. O’Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 331, 277 P.3d 1062 (2012) (civil); State v. Woodward, 288 Kan. 297, 299, 202 P.3d 15 (2009). The party asserting that tire trial court abused its discretion bears the burden of showing this abuse of discretion. State v. Wells, 289 Kan. 1219, 1226, 221 P.3d 561 (2009).
Generally, courts may invoke equitable principles to reheve a mortgagor from acceleration of the maturity of a debt secured by a mortgage or deed of trust. 59 C.J.S., Mortgages § 681. Even so, courts should use their power to refuse to accelerate the maturity of a debt on equitable grounds sparingly and should refuse to foreclose a mortgage only under certain clearly defined'circumstances. 59 C.J.S., Mortgages § 681. When making this determination, courts generally have considered the following factors: (1) the conduct of the parties; (2) the amount paid- in reduction of tire debt; and (3) the improvements made on the property by the mortgagor. 59 C.J.S., Mortgages § 681. Courts also may use equity to provide relief to the mortgagor against acceleration where the default results from accident, mistake, or where strict enforcement of acceleration would impose an inconceivable hardship on the mortgagor and give the mortgagee an unconscionable advantage. 59 C.J.S. Mortgages § 681; see also Greenberg v. Service Business Forms Industries, 882 F.2d 1538, 1542 (10th Cir. 1989) (“a court in equity can relieve a debtor from the hardship of acceleration based on accident, mistake, fraud, or inequitable conduct of the creditor”).
While there seems to be no Kansas precedent involving the defendants’ particular argument, Kansas law recognizes similar equitable principles. Specifically, our Supreme Court has stated the following:
“[!]£ the default was induced by the fraudulent or inequitable conduct of the creditor, or by any agreement or promise upon which the debtor might rely which operated to mislead or throw the debtor off his guard, a court of equity would interfere to stay proceedings, or the action might be abated upon the facts being properly pleaded.” Snyder v. Miller, 71 Kan. 410, 421, 80 P. 970 (1905).
When the trial court made its decision below, it adopted tire equitable principles listed in Greenberg, stating that it had “traced the legal basis in Greenberg to its origin, and finds that tire accident, mistake, fraud or inequitable conduct of the creditor exceptions to acceleration are sensible.”
In the absence of direct authority, we will draw guidance from several factors in determining whether equitable principles should be used to reheve a mortgagor from acceleration after default. The factors are the following: (1) the conduct of the parties; (2) the amount paid in reduction of the debt; and (3) the improvements made on the property by the mortgagor. Moreover, a court should consider whether the default resulted from accident, mistake, or inequitable conduct of tire mortgagee. Nevertheless, as stated earlier, courts should use their power to refuse to accelerate the maturity of a debt on equitable grounds sparingly and should refuse to foreclose a mortgage only under limited circumstances.
There was confusion below about the repayment schedule for the note. FNB believed that a lump sum payment of $1,350,000 was due on April 10, 2010. The defendants questioned this payment amount when they received the March 31, 2010, statement. Then, according to defendant Vince’s affidavit, Willis told him that he was unaware of any billing for principal reduction and that he was surprised that a lump sum $1,350,000 payment would be due. But Willis changed his position the following day after he was contacted by defendant Vince’s counsel, Brandon Ferguson.
In an email sent to Ferguson, Willis stated the following:
“Brandon,
“I am in meetings this morning. However, I will forward to you a copy of the Amended and Restated Promissory Note. My recollection on this question was faulty. I did not remember this principal reduction payment, but it is clearly required by the terms of the Note. We will get the copy of the Note to you today.
“Chris Willis.”
When the default occurred, FNB interpreted the loan documents to require a full $1,350,000 payment, not a payment of $1,350,000 less lot sale proceeds to date. On the other hand, the defendants contended, and the trial court later agreed, that the loan documents as a matter of law required tire latter (a payment of $1,350,000 less lot sale proceeds to date), leaving an unpaid amount due of $176,880.57 on April 10, 2010. In later briefing and bankruptcy court litigation, FNB accepted the trial court’s ruling. Nevertheless, FNB pointed out that the defendants had failed to pay die shortfall amount of $176,880.57. Moreover, FNB noted that the defendants had presented no evidence that FNB had hindered them from making that payment.
The defendants assert that they did not make the $176,880.57 payment because they disagreed with the automated billing statement. Nevertheless, the automated monthly billing statements did not waive the requirements of the note. The parties expressly agreed in the note that any waiver must be signed by the holder. Moreover, the note also stated in the middle of page 2 that FNB would simply “attempt” to notify the borrower of amounts due, but “the failure to give such notice will not affect the obligation of the undersigned to pay the principal and interest due.”
The trial court summarized the billing statement in this way:
“And there just simply isn’t any evidence that anything tire bank did, even the 3/31/10 billing statement... There is just no reason to believe that what the bank did resulted in the default. And that’s where the law is. So there is no basis for the application of an equity defense preventing acceleration in this case.” (Emphasis added.)
Equity cannot excuse Centennial Park’s failure to pay because none of the equitable principles that it relies on are present here, as the trial court ruled that, notwithstanding the various asserted defenses, no basis existed for the application of an equity defense preventing acceleration in this case. Moreover, the trial court pointed out that “[t]here is no evidence of an honest endeavor in good faith on the part of tire defendant to pay that amount of money on 4/10/10.”
Further, Centennial Park’s classification as a commercial entity also supports the position that equity should not be invoked here. As a commercial entity, Centennial Park was in a better position than a consumer would have been in a similar situation. Cf. Medling v. Wecoe Credit Union, 234 Kan. 852, 678 P.2d 1115 (1984) (“It cannot be denied that tire more sophisticated debtor is in a better position to grapple fairly with the creditor . . . .”). Indeed, as a commercial entity, Centennial Park could have negotiated terms more favorable to it.
The record does not indicate that the defendants made any attempt to pay the amount that it believed it owed. For instance, the defendants could have done any of the following: tendered the $176,880.57 to FNB while informing them that it was disputing the $1,350,000 lump sum payment; placed the $176,880.57 in escrow until it resolved the payment dispute; or filed suit and offered the money to the court until the dispute was decided. The defendants did not take any of these actions.
Because Centennial Park failed to pay the amount due of $176,880.57 by April 10, 2010, the trial court properly rejected the use of its equitable powers to prevent the acceleration of the defendants’ loan balance. .
Did the trial court err when it found that the defendants had not substantially performed under the terms of the loan documents and therefore had committed a material breach?
Under the principles of contract law, the doctrine of substantial performance provides that a party’s performance may be considered complete if the essential purpose of the contract is accomplished and that party has made a good-faith attempt to comply with the terms of the agreement even though he or she fails to meet the precise terms of the agreement. Dexter v. Brake, 46 Kan. App. 2d 1020, 1033, 269 P.3d 846 (2012). “Substantial performance is the antithesis of material breach. If it [is] determined that a breach is material, it follows that substantial performance has not been rendered. [Citation omitted.]” Almena State Bank v. Enfield, 24 Kan. App. 2d 834, 838, 854 P.2d 724 (1998). A material breach is one where the promisee receives something substantially less or different than what he or she bargained for. 24 Kan. App. 2d at 838.
Kansas courts commonly characterize substantial performance as a fact question. 24 Kan. App. 2d at 838. But, as with other fact-based issues, we may determine if a contractual party has substantially performed under die contract when the relevant circumstances are undisputed. See, e.g., St. Clair v. Denny, 245 Kan. 414, 420, 781 P.2d 1043 (1989) (proximate cause decided as matter of law on undisputed facts); Lay v. Kansas Dept. of Transportation, 23 Kan. App. 2d 211, 215, 928 P.2d 920 (1996) (same), rev. denied 261 Kan. 1085 (1997). This is such a case.
Substantial performance does not apply if the breach was willful. The defendants’ failure to pay all but $176,880.57, which is undisputed, was deliberate. “The doctrine of substantial performance does not apply where the breach is willful. ‘The willful transgressor must accept the penalty of his transgression.’ ” Calamari and Perillo on Contracts, § 157, p. 249 (1970). Moreover, some courts have refused to apply substantial performance when the variation from the contract was intentional, even though the variation was made with good motives. See Shell v. Schmidt, 164 Cal. App. 2d 350, 330 P.2d 817 (1958), cert. denied 359 U.S. 959 (1959).
Here, the parties agreed in the loan documents to the specific and controlling terms of this commercial development loan. As determined by tire trial court, Centennial Park failed to pay the amount due of $176,880.57 by April 10, 2010. The later payment of $167,531.49 from lot sale proceeds on April 26, 2010, was applied to the debt owed, but, under the terms of the loan documents, it did not constitute a partial cure or waiver of the default.
With respect to the defense of substantial compliance and material breach, the trial court relied on Almena State Bank v. Enfield, 24 Kan. App. 2d 834, 954 P.2d 724 (1998). The trial court stated:
“Almena State Bank case enumerated the factors to consider with substantial compliance, which is a concept that developed in construction law settings. While the Court is reluctant to treat tire concept of substantial compliance as a defense in this case because of the history of the concept, it feels obligated to do so. One of the factors for substantial compliance, from Almena State Bank is an honest endeavor to perform. The contract before this Court called for a payment of $1.35 million on or before April 10, 2010. There is no evidence of an honest endeavor to make the full payment of $1.35 million on or before April 10, 2010. It was not paid. The Court does not believe that there is substantial compliance. The court believes that tire failure to pay, whether it is $176,880.57 or $9,349.20 is a modest amount and percentage, and that the law in Kansas on substantial compliance does not analyze the amount of money at issue, but rather, pursuant to the contract, $1,350,000 was due on or before April 10, 2010 and it was not paid.”
In fhe present case, there was no written agreement to allow the defendants a partial payment breach or a right to cure for $176,880.57 or even $9,349.20.
As determined by the trial court and as admitted by the defendants, the full payment of $1,350,000 was not made by April 10, 2010. On May 17, 2010, FNB gave the defendants a 2-week opportunity to present a plan acceptable to FNB before it accelerated the debt. The defendants presented no plan acceptable to FNB.
In short, the defendants’ default was willful. The defendants argue that they honestly believed that they did not owe a separate principal payment of $1,350,000. Nevertheless, even if their belief was true, as the trial court later determined, they could not have honestly believed that they had made principal payments totaling $1,350,000 by April 10,2010. Thus, an excuse of mistake as to what performance the loan documents imposed on the defendants would not have legally excused them from performing under the loan documents by paying the sum of $176,880.57 by April 10, 2010. Because the deviations from the loan documents were deliberate, the defendants have not substantially performed under the loan documents. As a result, the defendants’ substantial performance argument fails.
Did FNB waive its right to accelerate the loan debt when it accepted the defendants' late payment of $9,349 by depositing the check in its account?
The defendants next argue drat the trial court “erred by failing to find Üiat a check for $9,349 tendered to and deposited by FNB, did not constitute a waiver.” FNB disagrees and argues that it did not waive any of its rights and its acceptance of the $9,349 check did not cure the defendants’ accelerated debt. “The legal effect of a written instrument is a question of law. It may be construed and its legal effect determined by the appellate court regardless of the construction made by tire trial court.” Foundation Property Investments, 286 Kan. 597, Syl. ¶ 2. Consequently, review of this issue is de novo.
The defendants argue that FNB waived its right to accelerate tire note when it accepted tire $9,349 late payment. Their argument is flawed. Promissory notes and mortgages are contracts between the parties, and the ordinary rules of construction applicable to contracts apply to them. Carpenter v. Riley, 234 Kan. 758, 763, 675 P.2d 900 (1984). Under Kansas law, waiver is an intentional relinquishment of a known right and intention may be inferred from conduct. Iola State Bank v. Biggs, 233 Kan. 450, 458-59, 662 P.2d 563 (1983). Generally, a mortgagee’s acceptance of a late or partial payment will result in a waiver of the right to declare default and accelerate a debt because of the lateness of that payment. Postal Savings & Loan Ass’n v. Freel, 10 Kan. App. 2d 286, 287, 698 P.2d 382 (1984). Moreover, “ ‘a past practice of excusing defaults occasioned by late payments may under certain circumstances be construed as an implied waiver of an acceleration clause.’ ” Foundation Property Investments, 286 Kan. at 609. But when the unambiguous language of the contract states a contrary intention, no such inference of waiver can be drawn. Freel, 10 Kan. App. 2d at 287. In other words, when the parties’ contract contains an unambiguous anti-waiver provision, acceptance of a late payment does not waive a mortgagee’s contractual right to accelerate the loan after default.
In this case, the parties agreed to the following provisions in the promissoiy note:
“If this Note is in default, then upon and after such default the holder hereof shall have the right, exercisable at such holder’s discretion, to declare the entire unpaid principal amount and all accrued interest due hereunder immediately due and payable without notice ... to tire undersigned, and [FNB] shall have all the remedies available to it at law or in equity for the collection of the amounts due. Failure at any time to exercise this option shall not constitute a toaiver of the right to exercise the same at any other time.
. . No delay or omission of the holder of this Note to exercise any right or power hereunder shall impair such right or power or be a waiver of any default or an acquiescence therein. Any single or partial exercise of any such right or power shall not preclude other or further exercises of any other right. No waiver shall be valid unless in writing signed by the holder of this Note and then only to the extent specifically set forth in such writing.” (Emphasis added.)
Based on the contract provisions cited above, FNB did not waive its right by accepting the defendants’ late payment. Indeed, the clear language of the note provisions italicized earlier constitute anti-waiver provisions. Because FNB and the defendants agreed to these anti-waiver provisions under the terms of the note, FNB’s acceptance of the $9,349 late payment did not constitute a waiver of its contractual right to accelerate the debt after the defendants’ default.
Moreover, Kansas appellate courts have upheld lenders’ contractual rights where their loan documents contained anti-waiver provisions similar to the ones present here. See, e.g., Riley State Bank v. Spillman, 242 Kan. 696, 701, 750 P.2d 1024 (1988) (Bank did not waive its right to declare default after accepting late payment because promissoiy note contained anti-waiver clause: “No waiver by the Secured Party of any default shall be effective unless in writing nor operate as a waiver of any other default or of the same default on a future occasion.”); Freel, 10 Kan. App. 2d at 287 (Past practice of accepting late payments did not waive party’s right to accelerate a promissory note because the note contained an express anti-waiver provision: “Any waiver of any payment hereunder or under the instrument securing this note at any time, shall not, at any other time, be taken to be a waiver of the terms of this note or the instrument securing it.”); Foundation Property Investments, 286 Kan. at 607 (citing Phipps v. First Federal Sav. & Loan, 438 N.W.2d 814 [S.D. 1989]) (mortgage note provision stating “failure to exercise this option shall not constitute a waiver of the right to exercise the same in the event of any subsequent default” created an anti-waiver provision indicating that bank’s failure to exercise its acceleration option did not constitute a waiver of its acceleration right); Beneficial Mortg. Corp. v. Gietzen, No. 104,818, 2011 WL 4357841 (Kan. App. 2011) (unpublished opinion), rev. denied November 4, 2011 (mortgagee not prohibited from accelerating debt because mortgage contained anti-waiver provision). Consequently, the defendants’ waiver argument fails.
Did FNB breach the implied covenant of good faith and fair dealing when it sent the defendants a statement requiring a principal payment of $1,350,000?
Finally, the defendants argue that FNB “breached their covenant of good faith and fair dealing by first issuing the March Statement, and then proceeding to repeatedly demand $1,350,000 when far less was due.”
Under Kansas law, “[t]he duty of good faith and fair dealing is implied in eveiy contract, with the exception of employment-at-will contracts.” Estate of Draper v. Bank of America, 288 Kan. 510, Syl. ¶ 13, 205 P.3d 698 (2009). The duty requires that contractual parties refrain from intentionally doing anything to prevent the other party from cariying out his or her part of the agreement, or from doing anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract. Bonanza, Inc. v. McLean, 242 Kan. 209, 222, 747 P.2d 792 (1987). “[W]hether the good faith standard was met is a question of fact. [Citation omitted.]” St. Catherine Hospital of Garden City v. Rodriguez, 25 Kan. App. 2d 763, 765, 971 P.2d 754 (1998). Nevertheless, we may determine whether tire implied covenant of good faith and fair dealing was violated as the underlying facts here are undisputed. See St. Clair v. Denny, 245 Kan. 414, 420, 781 P.2d 1043 (1989) (proximate cause decided as matter of law on undisputed facts); Lay v. Kansas Dept. of Transportation, 23 Kan. App. 2d 211, 215, 928 P.2d 920 (1996) (same), rev. denied 261 Kan. 1085 (1997).
In this case, nothing FNB did hindered the defendants from carrying out their part of the agreement. The billing statement was automated. The May 17, 2010, letter simply stated the uncontrov-erted fact that the full $1,350,000 payment had not been made. The billing statement accurately reflected the balance that was due by April 10,2010, under the terms of the note. Consequently, FNB did not breach the implied covenant of good faith and fair dealing, and the defendants’ implied covenant of good faith and fair dealing argument fails.
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Hill, J.:
This is an appeal of a district court order directing a debtor involved in a Chapter 11 bankruptcy proceeding, Brundage-Bone Concrete Pumping, Inc., to malee a $50,000 cash payment to a creditor, Sanford R. Fyler. Chapter 11 cases seek reorganization of the assets of a debtor rather than a liquidation of assets sought in Chapter 7 filings. All bankruptcy proceedings are within die exclusive jurisdiction of the federal courts. State courts can decide only ancillary matters, such as tort claims against a debtor, as permitted by the appropriate federal court. In this case, the alternative dispute resolution order of the bankruptcy court directed that any settlement or judgment made on a tort claim against Brundage-Bone shall be in die form of an allowed general unsecured claim. Because the order of a cash payment here violates the mandatory alternative dispute resolution procedures adopted by the United States Bankruptcy Court overseeing this debtor-in-possession proceeding, we hold the district court had no jurisdiction to order a cash payment. We reverse and remand.
Brundage-Bone seeks reorganization.
In January 2010, Brundage-Bone Concrete Pumping, Inc., filed a voluntary bankruptcy petition in the United States Bankruptcy Court for the District of Colorado under 11 U.S.C. § 301 (2006). Brundage-Bone’s petition estimated the number of its creditors to be between 1,000 and 5,000, and funds would be available to pay unsecured creditors. Then, in March 2010, Sanford R. Fyler asked the bankruptcy court for relief from its stay order so he could proceed with a state court tort claim against Brundage-Bone. In seeking relief under 11 U.S.C. § 362(d)(1) (2006), Fyler sought to pursue litigation in state court to establish the fact and amount of Brundage-Bone’s alleged liability arising out of Fyler’s tort claim for negligence against Brundage-Bone and a codeferidant.
In due course, the bankruptcy court, upon Brundage-Bone’s request, entered an alternative dispute resolution.(ADR) order under 11 U.S.C. § 105(a) (2006) that established procedures for resolution of any toil claims. This ADR order enjoined all claimants from commencing or continuing any action to establish, liquidate, collect or otherwise enforce any tort claim against Brundage-Bone other than through the ADR procedures described in the ADR order. After that, Brundage-Bone and Fyler jointly submitted a stipulation agreeing to lift the stay order concerning Fyler’s claim. The bank ruptcy court approved the stipulation and lifted its stay order concerning Fyler s claim-in.January 2011.
The dispute moves to Kansas.
After that, Fyler filed a petition in Sedgwick County District Court seeking damages from Brundage-Bone for injuries and damages caused by its negligence in operating a concrete pumping unit at a residential construction site accident in December 2008. The district court later denied Brundage-Bone’s motion to dismiss, which argued Fyler’s claim was barred by the statue of limitations. The parties participated in mediation where Brundage-Bone agreed to pay Fyler $50,000. The parties acknowledged that Brun-dage-Bone had to obtain “formal approval” to pay the claim. The settlement notes from the mediator stated Brundage-Bone’s counsel had “oral authorization from the [bankruptcy] trustee” and would “take all actions necessary to expedite payment.”
After mediation, Fyler submitted a proposed journal entry of judgment to Brundage-Bone that required Brundage-Bone to malee a direct cash payment to Fyler. Brundage-Bone refused to sign and submitted a competing stipulation of release and settlement of claim. In response, Fyler filed a motion to enforce settlement, alleging that Brundage-Bone would not consent to its proposed journal entry or “ falce all actions necessary to expedite payment.’ ” Brundage-Bone then filed a motion in opposition of Fyler’s motion and a counter-motion to enforce the settlement that claimed Fyler’s motion violated the ADR order. Specifically, Brun-dage-Bone argued the district court lacked jurisdiction to enforce Fyler’s motion because the settlement only provided Fyler with a general unsecured claim against the bankruptcy estate for $50,000 subject to the bankruptcy court’s approval.
The district court took evidence on the matter. The district court heard testimony from Dennis Gillen, the mediator who negotiated the settlement. The district court granted Fyler’s motion, ruling that the settlement terms did not provide for a general unsecured claim against Brundage-Bone’s bankruptcy estate. Instead, the district court ordered the settlement required Brundage-Bone to take all the necessary steps with the bankruptcy trustee to expedite a direct $50,000 cash payment to Fyler through the bankruptcy court.
In this appeal, Brundage-Bone argues the district court exceeded its jurisdiction under the terms of the controlling ADR order when it ruled the mediation settlement terms required Brun-dage-Bone to ask tire bankruptcy trustee to make a direct $50,000 cash payment to Fyler instead of liquidating Fyler’s tort claim as a general unsecured claim.
We state our standard of review.
Whether jurisdiction exists is a question of law over which an appellate court’s scope of review is unlimited. Associated Wholesale Grocers, Inc. v. Americold Corporation, 293 Kan. 633, 637, 270 P.3d 1074 (2011). In addition, the legal effect of a written instrument is a question of law. Because the settlement between the parties here was a written agreement it may be construed and its legal effect determined by this court regardless of the construction made by the district court. See Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011). Finally, to the extent this appeal involves statutory interpretation this court has unlimited review. Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009).
A review of some bankruptcy principles is helpful.
The primary purpose of the United States Bankruptcy Code is the collection and equitable distribution of the debtor’s estate to its creditors. Dalton Dev. Project #1 v. Unsecured Creditors Comm., 948 F.2d 678, 682 (10th Cir. 1991). Chapter 11 of the Bankruptcy Code authorizes reorganization of any assets held by the debtor (usually a business) rather than liquidation under Chapter 7.
The Bankruptcy Code provides for an automatic stay of all proceedings against the debtor the moment the bankruptcy petition is filed, irrespective ofnotice. 11 U.S.C. § 362(a); see United Northwest Fed’l Credit Union v. Arens, 233 Kan. 514, 516, 664 P.2d 811 (1983). The purpose of the automatic stay is to protect the debtor and its creditors by allowing the debtor to organize its affairs and ensuring that tire bankruptcy procedure provides an orderly reso lution of all claims. The stay terminates automatically when the bankruptcy case is closed or dismissed. 11 U.S.C. § 362(c)(2). Section 362(d), however, provides relief from the automatic stay upon a showing for-cause before the bankruptcy court by terminating, annulling, modifying, or conditioning of the stay. See Pursifull v. Eakin, 814 F.2d 1501, 1504 (10th Cir. 1987).
At the end of these proceedings, 11 U.S.C. § 1141(d)(1) (2006) states that confirmation of a reorganization plan discharges the debtor of any debt that arose before the date of confirmation and replaces the automatic stay with a permanent injunction under 11 U.S.C. § 524 (2006). Our Kansas Supreme Court has recognized “the provisions of a confirmed plan [under 11 U.S.C. § 1141(a)] bind the debtor and any creditor whether or not such creditor has accepted the plan.” Waterview Resolution Corp. v. Allen, 274 Kan. 1016, Syl. ¶ 6, 58 P.3d 1284 (2002). Going further, a discharge injunction under § 524 voids any judgment “to the extent that such judgment is a determination of the personal liability of die debtor with respect to [a discharged] debt” and operates as an injunction against any effort to collect “any such debt as a personal liability of the debtor.” 11 U.S.C. §§ 524(a)(1) and (2).
We note two controlling orders of the bankruptcy court.
Brundage-Bone's Chapter 11 petition operated as an automatic stay of all pending legal actions or those that could be taken against it. Therefore, Fyler was required to seek relief under § 362(d) to proceed with his tort claim before the bankruptcy case was either closed, dismissed, or Brundage-Bone was discharged by the bankruptcy court. See Becker v. Becker, 28 Kan. App. 2d 616, 620, 19 P.3d 794, rev. denied 271 Kan. 635 (2001). The bankruptcy court granted a request for such relief to allow Fyler to file his-toft claim in Kansas. In granting relief, the bankruptcy court’s order lifting the automatic stay reiterated, “Mr. Fyler’s Tort Claim shall remain subject to the applicable provisions of the ADR Order.”
The ADR order approved and incorporated a document entitled “MANDATORY ALTERNATIVE DISPUTE RESOLUTION PROCEDURES FOR TORT CLAIMS.” Section I of the ADR procedures warns all holders of tort claims against Brundage-Bone that failure to comply with the ADR procedures “may result in the disallowance of your Tort Claim.” Section V contains two relevant subsections.
First, subsection C(3) entitled “Recovery on-Any Judgment” provides:
“Upon termination of the automatic stay, [Fyler] may prosecute to judgment a Tort Claim in a court of competent jurisdiction. Enforcement of any judgment by [Fyler] against [Brundage-Bone], however, shall take place only before the Bankruptcy Court pursuant to the terms of any chapter 11 plan or plans confirmed in [Brundage-Bone’s] chapter 11 cases.”
Second, subsection F, called “Payment of Any Settlement or Judgment and Bankruptcy Court Approval”, provides:
“To the extent [Brundage-Bone’s] insurance policies are not .available to pay the amount of such settlement or judgment, you will not receive a cash payment but only an allowed general unsecured claim in [Brundage-Bone’s] estates to be treated and paid pursuant to a confirmed chapter 11 plan.
“Specifically, payment. . . shall be governed by the following procedures:
“1. To the extent not paid from insurance, payment of any settlement of or judgment on a Tort Claim against [Brundage] shall be in the form of an allowed general unsecured claim (the ‘GUC’) to be paid in the amount and form as set forth in a plan or plans confirmed in [Brundage-Bone’s] chapter 11 cases.
“2. [Brundage] and [Fyler] shall enter into a stipulation, agreement and order (‘Allowed Claim Stipulation’) allowing the GUC in the amount of the deficiency between any settlement or judgment on a Tort Claim against the Debtor and the amount of available insurance coverage.
“4. Bankruptcy Court approval pursuant to Fed. R. Bankr. P. 9019 will be required for any Allowed Claim Stipulation. The Allowed Claim Stipulation may be approved and entered by the Bankruptcy Court if a written objection thereto is not timely interposed.” (Emphasis added.)
We examine the question of jurisdiction of the Kansas district court.
We must point out initially that Brundage-Bone claims the bankruptcy court confirmed a plan of reorganization and that all debts except tiróse paid under tire plan were discharged. Nothing in the record on appeal indicates the bankruptcy court entered a discharge injunction. The burden is on the party making a claim to designate facts in the record to support that claim; without' such a record, the claim of error fails. National Bank of Andover v. Kansas Bankers Surety Co., 290 Kan. 247, 283, 225 P.3d 707 (2010). We are not persuaded by this contention.
In addition, Brundage-Bone did not raise this specific argument of discharge before the district court. Issues not raised before tire district court cannot be raised on appeal. In re Care & Treatment of Miller, 289 Kan. 218, 224-25, 210 P.3d 625 (2009). Consequently, Brundage-Bone cannot state a claim for a violation of § 524 of the Bankruptcy Code. See In re Houlik, 481 B.R. 661, 672 (10th Cir. 2012), where the court held that a discharge is necessary to give rise to the § 524(a)(2) discharge injunction.
Notwithstanding that line of argument, we are persuaded that Brundage-Bone raises a valid argument over jurisdiction. In United Northwest, the Kansas Supreme Court held that the district court was without jurisdiction to enter a default judgment in a mortgage foreclosure action because the appellees filed their lawsuit in violation of the automatic stay after the Chapter 7 bankruptcy petition was filed. 233 Kan. at 516.
The federal preemption of all bankruptcy matters imposes an order to court authority here. “By respecting the automatic stay, a .state court helps to insure the orderly and fair administration of the debtor s estate in the .bankruptcy proceeding.” Ace Tile Co., Inc. v. Casson Const. Co., Inc., 715 P.2d 344, 346 (Colo. App. 1986). This principle was recognized by the United Northwest court when it ruled: “It is settled that acts done in violation of the stay are Void and without effect/ [Citation omitted.]” 233 Kan. at 516.
We see no difference between the significance of an automatic stay order issued in accordance with a Chapter 7 bankruptcy filing and an ADR order issued by the bankruptcy court in a Chapter 11 proceeding that limits what can be done in state court concerning payment of any settlement of or judgment on a tort claim. Here, the ADR order against Brundage-Bone clearly limited claims to “allowed general unsecured claims. ” The district court could not go beyond the bounds established by the bankruptcy court in its ADR order. The ADR order is simply a manifestation of the stay order that permits only limited actions by creditors, debtors, and state courts. In other words, the district court here could determine the amount of Fyler s claim but could not issue an order to enforce a settlement that contradicts the ADR order.
We have examined the district court’s words on the subject both written and oral. The district court’s minute sheet reads:
“Court finds settlement should be enforced. Settlement terms included a $50,000 cash payment, approved by the bankruptcy [trustee], from defendant Brundage [sic] to Plaintiff. Defendant is ordered to take the necessary steps to submit the [Trustee’s] approval of settlement as soon as practicable.”
During his remarks from the bench, the judge stated:
“[W]ith respect to the enforcement of the order, the court is going to order that the defendant Brundage-Bone take any necessary steps to present this matter to tire trustee for payment as a cash payment and not as a general unsecured liability or credit that the plaintiff may have, and that will be the order of the court.” (Emphasis added.)
That order is in direct contravention of the ADR order. The clear meaning of the federal order is that after the amount of the tort claim is determined the debtor and creditor are governed exclusively by die orders of the bankruptcy court. Also, we must point out that there is no bankruptcy trustee in this case. Brundage-Bone-is known as a “debtor in possession” because this involves a Chapter 11 reorganization.
The district court had no authority to direct Brundage-Bone to present this matter “as a cash payment and not as a general unsecured liability.” If we were to rule otherwise, a state court could modify any order of the bankruptcy court and interfere with the orderly and fair administration of the bankrupt’s estate. We reiterate, die bankruptcy court was dealing with somewhere between 1,000 and 5,000 creditors.
We turn now to Fylers contentions.
We are not persuaded by Fyler’s argument diat we should somehow construe the value of his claim to be $300,000 so Brundage-Bone’s insurance carrier could pay die $50,000. This court has no authority to modify the terms of the agreement, especially in the absence of anything in die record that remotely suggests the claim is in that amount, or that the parties agreed to such terms.
Next, Fyler s contention that the ADR order can be bypassed via an administrative convenience settlement offer seems to be clutching at straws. Indeed, a section of the ADR order permits debtors, if they believe it is economically beneficial and administratively convenient, to waive certain claimants’ requirement to complete a confirmation of loss form. But that does not mean that Brundage-Bone can pay a separate claim outside of the confines of the ADR order. To interpret that procedure in such a fashion would mean that tire debtor is free to pay such claims in a fashion not in compliance with any plan and without bankruptcy court approval.
Also, Section V(F) of those procedures clearly states:
“If you hold a Tort Claim . . . read the following carefully. To the extent file Debtors’ insurance policies are not available to pay the amount of such settlement or judgment, you will not receive a cash payment but only an allowed general unsecured claim in the Debtors’ estates to be treated and paid pursuant to a confirmed Chapter 11 plan.”
We see no back door in the administrative convenience settlement offer procedures here that allows Fyler to escape the confines of the bankruptcy court’s ADR order.
Fyler did not assert any of these arguments regarding the settlement before the district court. Issues not raised before the trial court cannot be raised on appeal. In re Care & Treatment of Miller, 289 Kan. at 224-25.
As a final point, we note that if the district court lacks jurisdiction to enter an order, an appellate court does not acquire jurisdiction over the subject matter on appeal. Friedman v. Kansas State Bd. of Healing Arts, 287 Kan. 749, 752, 199 P.3d 781 (2009).
We hold the district court was without jurisdiction to order Brundage-Bone to submit this $50,000 claim as anything other than a general unsecured claim as described in the bankruptcy court’s ADR order.
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|
Standridge, J.:
Edwin S. Dana, Sr., and Douglas E. Dana (plaintiffs) appeal from the decision of tire district court to grant summary judgment in favor of the defendants—a funeral and cremation company and staff—on plaintiffs’ claims related to the temporary loss of the cremated remains of plaintiffs’ son and twin brother, respectively, Edwin Dana, Jr. Plaintiffs contend the district court erred in granting summary judgment in favor of the defendants on their claims of outrage, willful interference with Edwin Jr.’s cremated remains, violations of the Kansas Consumer Protection Act (KCPA), and breach of fiduciary duty. Plaintiffs also claim the district court erred in dismissing as moot their motion to amend petition to add a claim of punitive damages.
Facts
On August 12, 2010, the deceased body of Edwin Jr. was discovered in his Topeka home. Edwin Jr. was a Native American member of the Passamaquoddy Indian Tribe and a military veteran. On August 13, 2010, Douglas went to Dove Cremation and Funeral Service and met with Richard Rausch, a funeral director and manager, to make arrangements for Edwin Jr.’s cremation. Rausch also spoke to Edwin Sr. by phone and informed him that as the next of kin he was required to sign an authorization for cremation. Rausch prepared a document titled “Authority to Cremate and Order for Disposition” and faxed it to Edwin Sr., who signed the document and sent it back to Dove. The document included directions that Edwin Jr.’s cremated remains should be shipped via registered mail to Edwin Sr. at his home address in Maine. There was no shipment date indicated on the authorization form, but according to Edwin Sr.’s testimony, Rausch told him that the ashes would be shipped “as soon as possible; more than likely [August] 17th.” Conversely, Rausch claimed that he made no promises to Edwin Sr. or Douglas about when the remains would be sent. In alleged reliance on Rausch’s promise to send Edwin Jr.’s remains by August 17, Edwin Sr. planned to have a wake, funeral, and burial on the Passamaquoddy Reservation in Maine on August 24-26, 2010.
On August 14, 2010, Douglas viewed Edwin Jr.’s body in the garage of the Penwell-Gabel Mid-Town Chapel. When a body is decomposed, as Edwin Jr.’s was, viewings generally occur in the chapel garage. Before viewing the body, Rausch had Douglas sign a waiver of liability acknowledging that the body was in an advanced state of decomposition. Upon viewing the body, Douglas performed a smudge, a ceremonial release of the spirit which involved putting a substance on Edwin Jr.’s body and waving an eagle’s wing. Douglas placed some items, including a fan, beads, and an eagle’s wing in the body bag with Edwin Jr. Douglas returned to the funeral home on August 15, 2010, and observed Edwin Jr.’s body as it was placed into the crematory retort.
The cremation process
Newcomer Funeral Service Group owns the stock of Heartland Management Company, Inc., which does business as Dove Cremation and Funeral Services and Penwell-Gabel Funeral Homes. Shared Mortuary Services (SMS) is part of the Penwell-Gabel Funeral Homes and is an in-house centralized preparation center that performs cremation services at the Shawnee County Crematory. When a body is cremated there, the body is placed in a cooler until the time the cremation is to take place. Each body is accompanied throughout the process by a metal disk with a cremation ID number and a case record. The ID number is recorded on the case record, along with the following information: the date, the primary authorizing agent, the coroner’s permit, the county, the container in which the body was brought to the crematoiy, and a description of the urn in which the cremated remains are to be placed. SMS also has a daily cremation log where the ID number is recorded along with the date and time the remains are placed inside and removed from the crematory retort.
At the time of Edwin Jr.’s cremation, when the body was placed into the retort, the metal ID disk was attached to a magnetic clip that hung on the outside. After processing, the remains were placed in a plastic bag and, along with the metal ID disk and case record, were taken to the SMS office where tire ID number, name, location of death, date of cremation, and the responsible funeral home were entered in a log. The remains were placed in an urn and then put into a locked storage locker. When the remains were placed into an urn, the person who removed the remains from the crematory created three identical labels containing the deceased’s name, tire cremation ID number, the date of cremation, place of death, and the responsible funeral home. One label was affixed on the outside of the urn; one label was placed on a note card and placed outside of the locker; and one label was laminated, affixed to tire metal ID disk, and placed inside the urn.
Edwin Jr.’s cremation and the search for his remains
At 9:46 a.m. on August 15, 2010, Jay Luehring, an embalmer and funeral director at Shawnee. County Crematory, placed Edwin Jr.’s body into the retort to be cremated. At 6:30 p.m., Luehring removed Edwin Jr.’s ashes, placed them in a temporary urn, and created three labels for the remains. In creating tire labels, Lueh-ring did not look at or read the labels before affixing them to the urn, the note card, and the ID disk and did not compare the ID number on the metal disk to the number on the label.
Late in the afternoon of August 18, Lary Dodge, tire manager of SMS, received Edwin Jr.’s death certificate via fax. Dodge unsuccessfully attempted to locate a .locker or urn labeled with Edwin Jr.’s name in order to place the death certificate in the file. Dodge also checked tire completed case records and the filing cabinet where permanent files were kept but could not locate Edwin Jr.’s case file. Dodge then told Luehring that he was unable to locate the locker with Edwin Jr.’s remains; Luehring accompanied Dodge as he looked at the labels on the outside of each locker and checked inside, each labeled locker to see if the label on the urn matched the label on the outside of the locker. Dodge did not look at the case file inside each locker to compare it to the labels. Dodge notified Rausch of his inability to located Edwin Jr.’s urn or case file. Rausch went to SMS and met with Dodge, where Rausch opened each locker, looked at the label on the urn in each locker, and compared the urn label to the label on the outside of the locker. Rausch also searched a filing cabinet at SMS. Rausch did not look at the case files in any of the lockers.
On August 19, Dodge, Rausch, Luehring, and Jed Dunnichay, the senior vice-president of Heartland Management Company, went to Dove, the Parker-Price Funeral Home, and other funeral homes in Topeka to see if Edwin Jr.’s remains had been mistakenly taken to another funeral home. In the course of searching, they looked in other rooms in the basements of the Dove and Parker-Price funeral homes, emptied the shelving at SMS, went through tire storeroom in the back of the building, and looked through a trash dumpster. Dodge also told Melissa Schroeder, an embalmer at SMS, that Edwin Jr.’s remains and case file were missing. Schroeder searched the file cabinet that held the closed files and made phone calls to other funeral homes.
On August 20, Dunnichay interviewed Rausch, Dodge, Luehr-ing, and other individuals to discuss the chain of custody that had occurred with Edwin Jr.’s remains. Dunnichay also examined the inside and outside of each locker but did not look at the case files or the ID disks in any of the lockers. In addition, Dunnichay spoke with funeral directors at other Penwell-Gabel funeral homes about the search for Edwin Jr.’s remains.
That same day, Warren Newcomer, president of Newcomer Funeral Service Group, was notified of the situation. Newcomer met with Dodge, Luehring, Dunnichay, and Ed Tuggle, the chief operating officer of Newcomer Funeral Service Group, and reviewed their procedures and discussed the steps that had been taken to locate Edwin Jr.’s remains. Newcomer was convinced at that time that a thorough search had been conducted.
On August 21, Dunnichay met with Daniel Werner, the managing funeral director at Dove, and explained the loss of Edwin Jr.’s remains and told him that all avenues to locate the remains had been exhausted. Dunnichay and Werner called Edwin Sr. to notify him of the loss. Dunnichay informed Edwin Sr. that Edwin Jr.’s remains had either been misplaced or stolen, and he described the procedures that were taken to safeguard the remains and the steps drat had been taken to search for them. Edwin Sr. called Douglas and informed him what had happened.
That same day, Werner filed a police report with the Topeka Police Department, and Werner and Dunnichay met with the police. On August 23, Newcomer wrote a letter to Edwin Sr. apologizing for die loss of Edwin Jr.’s remains and informing him that a theft must have occurred and that the police were investigating the matter.
On August 24-26, Edwin Jr.’s wake and funeral service were held. Edwin Sr. had sought advice as to whether to tell the tribal members and his other children what had happened; he ultimately decided to go ahead with the planned wake and funeral, and he and Douglas did not tell anyone other than the priest that Edwin Jr.’s ashes were not present.
Discovery of Edwin Jr.’s remains
On August 31, Becca Duncan, a funeral director at Penwell-Gabel, noticed the name Swenson on the outside of a storage locker. Duncan had previously made funeral arrangements with the Swenson family, so she called them to verify that the burial had already occurred. Duncan opened the locker and saw that the urn in the locker had a label with Swenson’s name, but the ID disk and the case file in the locker belonged to Edwin Jr.
As it turned out, Edwin Jr.’s remains were never missing but were instead mislabeled by Luehring when he created the labels for Edwin Jr. and Swenson. Labels are not kept in the printer but are instead fed one sheet at a time as they are needed. Luehring believed that instead of single eliciting on the print command when malting Swenson’s labels, he double-clicked it, which sent two sets of Swenson labels to the printer queue. Then, when Luehring entered the information for Edwin Jr. and attempted to print it, the second set of Swenson labels printed, and he mistakenly placed those on Edwin Jr.’s urn. Luehring was later disciplined for this error.
After the discoveiy of Edwin Jr.’s remains on August 31, Dun-nichay called Edwin Sr. to advise him that the remains had been located and explained how they had been verified as belonging to Edwin Jr. Rausch personally took Edwin Jr.’s remains to the post office and mailed them to Edwin Sr., who signed for them on September 8, 2010.
Plaintiffs file suit
On November 15, 2010, plaintiffs filed a petition against the defendants alleging claims of negligence, willful interference with plaintiffs' right to Edwin Jr.’s cremated remains, violations of the KCPA, breach of fiduciary duty, and outrage. Plaintiffs subsequently moved to amend their petition to include a claim for punitive damages.
The defendants answered, opposed plaintiffs’ motion to amend, and moved for summaiy judgment after discovery, including depositions regarding the circumstances involved. The district court ultimately granted the defendants’ motion for summary judgment on all claims and dismissed as moot plaintiffs’ motion for punitive damages.
Analysis
On appeal, plaintiffs contend the district court erred in granting summaiy judgment in favor of the defendants on their claims of outrage, willful interference with Edwin Jr.’s cremated remains, violations of the KCPA, and breach of fiduciary duty. Plaintiffs also argue that their motion to amend petition to include a claim for punitive damages was not moot. Plaintiffs do not challenge the district court’s decision to grant summary judgment on their negligence claim or the district court’s ruling that Douglas lacked standing with respect to certain claims.
When the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact, the moving party is entitled to judgment as a matter of law and summary judgment is appropriate. The district court is required to resolve all facts and inferences which may reasonably be drawn from tire evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, the adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dis pute must be material to the conclusive issues in the case. On appeal, the same rules apply; summary judgment must be denied if reasonable minds could differ as to the conclusions drawn from the evidence. Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011).
“An issue of fact is not genuine unless it has legal controlling force as to the controlling issue. The disputed question of fact which is immaterial to the issue does not preclude summary judgment. If the disputed fact, however resolved, could not affect die judgment, it does not present a genuine issue of material fact. [Citation omitted.]” ’ Mitchell v. City of Wichita, 270 Kan. 56, 59, 12 P.3d 402 (2000) [citation omitted].” Hall v. Shelter Mutual Ins. Co., 45 Kan. App. 2d 797, 800, 253 P.3d 377 (2011), rev. denied 293 Kan. 1106 (2012).
1. Outrage
In order to establish a claim of outrage, a plaintiff must prove: (1) the defendant engaged in intentional or reckless conduct; (2) such conduct was extreme and outrageous; (3) such conduct was causally connected to plaintiffs mental distress; and (4) the plaintiff s mental distress was extreme and severe. Valadez v. Emmis Communications, 290 Kan. 472, 476, 229 P.3d 389 (2010); PIK Civ. 4th 127.70.
In response to the defendants’ summary judgment motion, plaintiffs offered an affidavit from a licensed family therapist, Dr. Pauline Boss. Dr. Boss did not examine Edwin Sr. or Douglas but reviewed plaintiffs’ petition, deposition testimony, affidavits, and medical records. Dr. Boss opined that the normal grief and distress felt by plaintiffs resulting from Edwin Jr.’s death could not be separated from the emotional distress caused by the defendants’ conduct of losing the ashes and lying about them being stolen, which caused “unnecessary pain and suffering piled on top of a family’s normal grieving.” Dr. Boss claimed that plaintiffs’ emotional distress was compounded by going through with the wake and funeral service with an empty urn and that plaintiffs suffered shame and embarrassment by having to endure the Passamaquoddy rituals and military honors being performed over the urn that only they knew was empty. Dr. Boss stated that plaintiffs’ emotional distress was not cured upon receipt of the ashes, as the inconsistency of being told the ashes were stolen and tiren being told they were found at the funeral home was “an unusually painful and traumatic situation” that ruined plaintiffs' trust and left them with no closure.
The district court granted summary judgment in favor of the defendants on the outrage claim, finding there was no evidence that the defendants acted willfully, intentionally, wantonly, or recklessly with regard to the misplacement of Edwin Jr.’s remains.
Plaintiffs allege that the district court erroneously granted summary judgment on this claim by focusing solely on the defendants’ conduct in losing Edwin Jr.’s remains. Instead, plaintiffs contend genuine issues of material fact exist with respect to the following series of transactions which must be resolved before it can be determined whether the defendants acted intentionally or recklessly, including defendants’ “conducting a wholly inadequate search for the ashes, recklessly concealing the loss of the ashes from plaintiffs and lying to plaintiffs by telling them the ashes were stolen.” Specifically, plaintiffs claim that the following factual disputes in the record preclude summary judgment because they could show that the defendants acted intentionally and with reckless disregard: (1) whether Rausch told plaintiffs that Edwin Jr.’s remains would be shipped by August 17; (2) when the defendants became aware of the date of Edwin Jr.’s wake and funeral; (3) whether the search for the remains was reasonable; (4) why plaintiffs were not told right away that the remains were missing; (5) whether there was a reasonable basis to believe the remains were stolen; and (6) Newcomer’s intent in sending the apology letter to Edwin Sr.
A claim of outrage has two threshold requirements: (1) The defendant’s conduct must be regarded as “so extreme and outrageous as to permit recovery” and (2) plaintiffs emotional distress must be “so severe that no reasonable person should be expected to endure it.” Valadez, 290 Kan. at 477. Plaintiffs contend that the defendants’ conduct was outrageous in the context of the vulnerable, emotional, and confusing time that typically follows the death of a loved one. Plaintiffs further claim that the district court ignored Dr. Boss’ affidavit and did not point to any evidence in tire record that contradicted her opinion regarding the severity of their emotional distress.
a. Extreme and outrageous conduct
Extreme and outrageous conduct goes “beyond the bounds of decency and [is] to be regarded as atrocious and utterly intolerable in a civilized society.” Miller v. Sloan, Listrom, Eisenbarth, Sloan & Glassman, 267 Kan. 245, 257, 978 P.2d 922 (1999).
Kansas cases have generally held in favor of defendants in outrage cases, finding that the alleged conduct was insufficiently outrageous to support the claim. Lindemuth v. Goodyear Tire & Rubber Co., 19 Kan. App. 2d 95, 100-01, 864 P.2d 744 (1993); see, e.g., Moore v. State Bank of Burden, 240 Kan. 382, 388, 729 P.2d 1205 (1986), cert. denied 482 U.S. 906 (1987) (no outrage claim where bank erroneously set off funds against a legitimate indebtedness owed to bank); Burgess v. Perdue, 239 Kan. 473, 475-77, 721 P.2d 239 (1986) (mother who was told that her son’s brain was in a jar could not maintain an action for outrage); Neufeldt v. L. R. Foy Constr. Co., 236 Kan. 664, 665, 668-69, 693 P.2d 1194 (1985) (no outrage claim allowed by a wife recovering from a miscarriage who was falsely told that an arrest warrant had been issued for her husband); Roberts v. Saylor, 230 Kan. 289, 295, 637 P.2d 1175 (1981) (no outrage claim where doctor expressed dislike of patient prior to patient undergoing surgeiy); Ely v. Hitchcock, 30 Kan. App. 2d 1276, 1289, 58 P.3d 116 (2002) (funeral director allowing plaintiff to view his mother’s body with a cut to her forehead and blood on her face and hair not sufficient to support claim of outrage).
In Burgess, the plaintiff s son was a resident of the Kansas Neurological Institute (KNI) at the time of his death. The plaintiff refused to grant permission for a full autopsy, but the paperwork mistakenly did not limit the autopsy as the plaintiff had requested. After a full autopsy was performed, the coroner removed the brain of the plaintiff s son and sent it to KNI. After her son’s funeral, a doctor from KNI called tire plaintiff, informed her they had her son’s brain, and asked what they should do with it. The plaintiff brought a claim of outrage against the State based on its employee informing her they had her son’s brain. Our Supreme Court rejected this argument, holding that while the wording used by the doctor was not the most tactful, the doctor s conduct was not outrageous:
“While the statements made to the mother were probably shocking, they were not outrageous—‘so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ The doctor called the mother because she knew tire mother had not wanted the brain autopsied. The doctor was concerned that any impropriety be resolved. She did not intend to harass or intimidate or otherwise abuse the mother. No malice was involved.” 239 Kan. at 477.
In the present case, there is no suggestion that the defendants’ actions here—temporarily misplacing Edwin Jr.’s cremated remains, delaying shipment to Edwin Sr., and claiming that the remains may have been stolen—were so outrageous in character or so extreme in degree as to go beyond the bounds of decency. Nor were they so atrocious as to be regarded as utterly intolerable in a civilized society. See Miller, 267 Kan. at 257. At most, plaintiffs have alleged facts showing that the defendants’ actions were irresponsible and/or negligent. Under Kansas law, this is not enough to recover for a claim of outrage.
b. Severe emotional distress
Additionally, liability for a claim of outrage only arises when the plaintiffs distress is “extreme” or “severe.” See Taiwo v. Vu, 249 Kan. 585, 593-94, 822 P.2d 1024 (1991); Restatement (Second) of Torts § 46, comment j, pp. 77-78 (1964). Fright, concern, embarrassment, worry, and nervousness do not constitute sufficient harm to warrant the award of damages. See Roberts, 230 Kan. at 293-94. “ There is no laundry list of what qualifies as the requisite level of severity [of emotional distress] .... [I]t is fair to say that headaches, sleeplessness, irritability, anxiety, depression, listlessness, lethargy, intermittent nightmares, and the like would probably not suffice ....’” Valadez, 290 Kan. at 479 (quoting Boston, Kline & Brown, Emotional Injuries: Law and Practice § 22:7 [1998]); see Ely, 30 Kan. App. 2d at 1289-90.
In response to interrogatories served upon diem, plaintiffs described the injuries they sustained as “ ‘extreme and severe emotional distress.’ ” Plaintiffs also alleged that the mental anguish re- suiting from the cover-up and events surrounding Edwin Jr.’s cremation aggravated their existing health conditions. Specifically, Douglas testified that prior to Edwin Jr.’s death, he suffered from posttraumatic stress and depressive disorders and he had a pacemaker and a defibrillator. After the events occurred with Edwin Jr.’s remains, Douglas claimed that he suffered from chest pain, discomfort, and crying and that he had to increase his heart and sleep medications. Douglas stated that he did not really believe the ashes sent to Edwin Sr. really belonged to Edwin Jr. Edwin Sr. testified that prior to Edwin Jr.’s death, he had a brainstem he-mangioma and suffered from posttraumatic stress disorder. He testified that he had seen a psychologist at the veteran’s hospital twice following Edwin Jr.’s death.
But plaintiffs’ claimed injuries do not rise to die level of extreme or severe distress. Even if we consider Dr. Boss’ affidavit, we must do so in conjunction with the fact that Dr. Boss did not examine plaintiffs and her affidavit is conclusory in nature and not based on any specific facts demonstrating plaintiffs’ level of distress. Moreover, the record does not explicitly show that plaintiffs sought medical treatment or psychological counseling specifically related to die defendants’ loss of Edwin Jr.’s remains.
None of die disputed facts alleged by plaintiffs are material to whether the defendants’ conduct was extreme and outrageous or to whedier plaintiffs suffered extreme and severe emotional distress. Accordingly, the district court properly granted summary judgment on plaintiffs’ claim of outrage.
2. Willful interference with cremated remains
Kansas recognizes the tort of interference with a dead body. Recovery on a claim of intentional interference with a dead body requires proof of intentional or malicious conduct. See Burgess, 239 Kan. at 479-80; Ely, 30 Kan. App. 2d at 1283-85.
In granting summary judgment on plaintiffs’ claim of intentional interference with Edwin Jr.’s remains, the district court found that the tort of intentional interference with a dead body should be extended to include cremated remains. However, the court held that the claim failed because there was no evidence that the de fendants5 conduct as it related to misplacing Edwin Jr.’s remains was intentional.
Plaintiffs urge this court to affirm the district court’s ruling extending tire tort of intentional interference with a dead body to include cremated remains but claim the court erred in granting summary judgment on this issue because there are genuine issues of material fact that exist as to whether the defendants’ conduct was intentional or reckless, including: (1) when the defendants knew of the wake and funeral plans, (2) whether the defendants’ search for Edwin Jr.’s remains was reasonable, (3) whether the defendants had a reasonable basis to claim that a theft had occurred, (4) what Newcomer’s intent was in sending the apology letter to Edwin Sr., and (5) whether Newcomer genuinely believed a theft had occurred.
It does not appear that the question of whether the tort of intentional interference with a dead body should include cremated remains has been decided in Kansas or in other jurisdictions. Given that cremation is a common alternative to burial in this countiy, it makes sense that the tort should be extended to include cremated remains. However, it is not necessary for this court to decide the issue in this case because plaintiffs cannot show that the defendants’ conduct was intentional or malicious.
In Burgess, our Supreme Court held that a physician was negligent in failing to inform the coroner that the decedent’s mother did not want an autopsy to include her son’s brain but was not liable to the mother for emotional distress damages for interfering with her son’s dead body because recovery of such damages requires proof of intentional or malicious conduct. 239 Kan. at 479-80. In Ely, the plaintiff claimed that a mortuary worker intentionally interfered with his mother’s body when the transportation cot carrying her body fell over, resulting in a laceration and blood on his mother’s face, head, and hair. On appeal, this court held that summary judgment was appropriate because the evidence indicated that the cot fell accidentally and there was no evidence that the worker intentionally battered tire woman’s body. 30 Kan. App. 2d at 1284-85.
Here, none of the disputed facts alleged by Edwin Sr. are material to the defendants’ handling of Edwin Jr.’s remains. There is no evidence or allegation that the defendants mishandled Edwin Jr.’s corpse or cremated remains or that the defendants intentionally or maliciously kept the remains from Edwin Sr. Rather, it appears that the remains were accidentally mislabeled, and when the labeling error was discovered and the remains located, they were mailed to Edwin Sr. Because there is no evidence that the defendants committed an intentional or malicious act with regard to Edwin Jr.’s remains, the district court properly granted summary judgment on plaintiffs’ claim of intentional interference with the remains.
3. The Kansas Consumer Protection Act
Plaintiffs argue that the district court erred in granting summary judgment on their claims that the defendants violated the KCPA by engaging in deceptive and unconscionable acts in connection with a consumer transaction. Specifically, plaintiffs contend that the defendants violated K.S.A. 2012 Supp. 50-626(b)(2) and (b)(3) and K.S.A. 50-627(b)(6) when they told plaintiffs that Edwin Jr.’s remains had been stolen.
The KCPA was enacted “to protect consumers from suppliers who commit deceptive and unconscionable practices.” K.S.A. 50-623(b). In granting summary judgment on this claim, the district court found there was no evidence of deceptive or unconscionable conduct because the defendants’ actions in misplacing Edwin Jr.’s remains and telling plaintiffs the remains may have been stolen was not willful or done with an intent to injure or harm plaintiffs. The court further held that whether the defendants believed the ashes had been stolen was not material to any delay in advising plaintiffs of the situation.
a. Deceptive acts under K.S.A. 2012 Supp. 50-626
K.S.A. 2012 Supp. 50-626 provides, in relevant part:
“(a) No supplier shall engage in any deceptive act or practice in connection with a consumer transaction.
“(b) Deceptive acts and practices include, but are not limited to, the following, each of which is hereby declared to be a violation of this act, whether or not any consumer has in fact been misled:
(2) the willful use, in any oral or written representation, of exaggeration, falsehood, innuendo or ambiguity as to a material fact;
(3) the willful failure to state a material fact, or the willful concealment, suppression or omission of a material fact.”
Whether a person has engaged in deceptive acts or practices under K.S.A. 2012 Supp. 50-626 is ordinarily a question of fact. However, summary judgment is appropriate on claims where there is no evidence of deceptive conduct. Crandall v. Grbic, 36 Kan. App. 2d 179, 196, 138 P.3d 365 (2006); accord Bomhoff v. Nelnet Loan Services, Inc., 279 Kan. 415, Syl. ¶ 4, 109 P.3d 1241 (2005). Intent is an element of a deceptive practices claim under K.S.A. 2012 Supp. 50-626(b)(2) and (b)(3). Crandall, 36 Kan. App. 2d at 196. A willful act under the KCPA is one performed with a designed purpose or intent on the part of a person to do wrong or to cause injury to another. Tufts v. Newmar Corp., 53 F. Supp. 2d 1171, 1178 (D. Kan. 1999); see PIK Civ. 4th 103.04.
Plaintiffs argue that the defendants committed deceptive acts by purposefully lying to them about Edwin Jr.’s remains being stolen and in purposefully and intentionally concealing the loss from them. For support, plaintiffs rely on the fact that there was no evidence of a brealc-in, none of the employees or senior management believed there was a break-in, police were not contacted until Edwin Sr. demanded it, the search for Edwin Jr.’s remains was not reasonable, a theft had never occurred there before, and there is a dispute as to whether Newcomer had a reasonable basis to conclude that there was a theft. Plaintiffs also allege that the defendants’ conduct was material to their claims of emotional distress as set forth in Dr. Boss’ affidavit and that the defendants’ failure to earlier disclose the loss of Edwin Jr.’s remains prevented the postponement of the wake and funeral, which further contributed to their emotional distress.
Plaintiffs’ argument is without merit for three reasons. First, there is no evidence in the record to show that the defendants purposefully lied to plaintiffs about Edwin Jr.’s remains being stolen. While several of the defendants and other employees testified in depositions that there had been no evidence of a break-in and that they drought a theft was unlikely, they could not come up with any other explanation at that time for die loss of Edwin Jr.’s remains and wanted to explore all avenues while they continued to investigate the circumstances.
Second, even if it is true that the defendants did not believe that Edwin Jr.’s remains had been stolen, there is no evidence in the record to establish that tíre defendants’ act of telling plaintiffs tiiat Edwin Jr.’s remains must have been stolen was made with the purpose or intent to do wrong or cause injury to plaintiffs. See Tufts, 53 F. Supp. 2d at 1178. Although the remains were later found and turned out not to have been stolen, it does not make the defendants’ mistaken belief at tire time they spoke to plaintiffs about the possible theft willful. After the defendants discovered Edwin Jr.’s remains were missing, they spent 2 days searching for them before they called plaintiffs. The fact that the defendants did not call plaintiffs immediately does not suggest malicious behavior.
Third and finally, the defendants’ actions of telling plaintiffs that the ashes must have been stolen arguably did not involve a material fact. K.S.A. 2012 Supp. 50-626 does not define the term “material fact,” but it has been defined as “ ‘one to which a reasonable person would attach importance in determining his [or her] choice of action in the transaction involved.’” Farrell v. General Motors Corp., 249 Kan. 231, 244, 815 P.2d 538 (1991).
The defendants learned the ashes were missing on the afternoon of August 18, and the plaintiffs received notice of the loss on the morning of August 21. The wake and funeral were scheduled for August 24-26. Edwin Sr. testified that he spoke to a church official, Sister Janice, about the -missing ashes on August 21 or 22 and sought advice about whether to go ahead with the services or to postpone them. Sister Janice recommended that he go ahead with the wake and funeral without the ashes and do another service later when the ashes were found. Thus, as late as August 21, Edwin Sr. had tiie option to postpone the wake and funeral but chose not to. Plaintiffs do not claim, and there is no indication in the record, that Edwin Sr. would have chosen a different option if he had been told the remains were simply lost or misplaced rather than stolen.
b. KS.A. 50-627
K.S.A. 50-627 provides, in relevant part:
“(a) No supplier shall engage in any unconscionable act or practice in connection with a consumer transaction. An unconscionable act or practice violates this act whether it occurs before, during or after the transaction.
“(b) The unconscionability of an act or practice is a question for the court. In determining whether an act or practice is unconscionable, the court shall consider the circumstances of which the supplier knew or had reason to know, such as, but not limited to the following that:
(6) the supplier made a misleading statement of opinion on which the consumer was likely to rely to tire customer’s detriment.”
Whether a defendant committed unconscionable acts is a question of law for the court. K.S.A. 50-627(b); State ex rel. Stovall v. DVM Enterprises, Inc., 275 Kan. 243, 248, 62 P.3d 653 (2003). Summary judgment is appropriate if there is no evidence of unconscionable acts. Bomhoff, 279 Kan. 415, Syl. ¶ 4. An appellate court has unlimited review of the district court’s unconscionability determination. State ex rel. Kline v. Berry, 35 Kan. App. 2d 896, 907, 137 P.3d 500 (2006).
Plaintiffs claim that genuine issues of material fact exist with respect to whether the defendants’ loss of Edwin Jr.’s remains and unconfirmed statement to the family that the remains must have been stolen was unconscionable, including the adequacy of the search for Edwin Jr.’s remains, the date that the defendants learned of the wake and funeral plans, the reason for the defendants’ concealment of the loss of the remains from the plaintiffs, whether the defendants had a reasonable basis for telling plaintiffs the remains must have been stolen, and the defendants’ intent in telling plaintiffs the remains must have been stolen.
“Broadly viewed, unconscionability reflects a gross disparity in the value of a transaction favoring the supplier resulting, at least in part, from unequal bargaining power or knowledge, often tied to the buyer’s physical or mental infirmity, illiteracy, or lack of fluency in the language used to make the sale. [Citation omitted.]” Golden v. Den-Mat Corporation, 47 Kan. App. 2d 450, 491, 276 P.3d 773 (2012). In order to render the contract between the parties unconscionable, there must be “some element of deceptive bargaining conduct present as well as unequal bargaining power.” Willman v. Ewen, 230 Kan. 262, 266, 634 P.2d 1061 (1981).
In this case, there is nothing in tire record to indicate deceptive bargaining or unequal bargaining power in negotiating the contract at issue. Plaintiffs entered into a contract with Dove to perform cremation services, which were performed. Although the defendants were in a position of having greater knowledge of the circumstances involved and had, in fact, misplaced Edwin Jr/s remains, the remains were later located and shipped to Edwin Sr. The defendants’ conduct, while perhaps careless or negligent, does not rise to the level of unconscionable. Moreover, there is no showing that the defendants knowingly, or with reason to know, made a misleading statement of opinion or that plaintiffs relied on such a statement to their detriment. Rather, it appears that the defendants merely expressed their mistaken belief that Edwin Jr.’s remains must have been stolen, and plaintiffs do not suggest what they would have done differently if the defendants had stated that the remains were lost or misplaced rather than stolen.
Because there is no evidence showing that the defendants committed deceptive or unconscionable acts in connection with the temporaiy loss/misplacement of Edwin Jr.’s remains, the district court properly granted summary judgment on plaintiffs’ claims of KCPA violations.
4. Breach of fiduciary duty
The district court granted summary judgment on plaintiffs’ breach of fiduciary duty claim, finding, in part, that there was no evidence of a fiduciary relationship or any special trust that existed between plaintiffs and the defendants upon which plaintiffs relied. Plaintiffs allege the district court erred in granting summary judgment on this claim because a fiduciary relationship existed between the parties due to tire trust and confidence they placed in the defendants to safeguard Edwin Jr.’s remains.
“A fiduciary relationship exists where there has been a special confidence reposed in one who, in equity and good conscience, is bound to act in good faith and with due regard to the interests of the one reposing the confidence. [Citation omitted.]” Reebles, Inc. v. Bank of America, N.A., 29 Kan. App. 2d 205, 208, 25 P.3d 871, rev. denied 272 Kan. 1419 (2001). Whether a fiduciary relationship exists depends on the facts and circumstances of each case. Denison State Bank v. Madeira, 230 Kan. 684, 691, 640 P.2d 1235 (1982). In reviewing a district court’s determination of the existence or nonexistence of a fiduciaiy relationship, an appellate court is required to consider the evidence in the light most favorable to the party who prevailed below. Olson v. Harshman, 233 Kan. 1055, 1057, 668 P.2d 147 (1983); Wilson v. Wilson, 37 Kan. App. 2d 564, 576, 154 P.3d 1136 (2007).
Two types of fiduciaiy relationships exist: (1) those specifically created by contract such as principal and agent and (2) those implied in law due to the factual situation surrounding the involved transactions and the relationship of the parties to each other and to the questioned transactions. Wilson, 37 Kan. App. 2d at 577. Examples of a fiduciary relationship include the acting of one party for another, the exercising of influence by one party over another, the reposing of confidence by one party in another, tire inequality of the parties, and the dependence of one party on another. Morrison v. Watkins, 20 Kan. App. 2d 411, 422, 889 P.2d 140, rev. denied 257 Kan. 1092 (1995). “A confidential relationship is not presumed, and the burden of proving such a relationship existed rests upon the party asserting its existence. [Citation omitted.]” Kampschroeder v. Kampschroeder, 20 Kan. App. 2d 361, 365, 887 P.2d 1152, rev. denied 257 Kan. 1092 (1995). A party may not “unilaterally impose a fiduciaiy relationship on another without a conscious assumption of such duties by the one sought to be held liable as a fiduciary.” Linden Place v. Stanley Bank, 38 Kan. App. 2d 504, Syl. ¶ 5, 167 P.3d 374 (2007).
Plaintiffs claim that funeral homes have a unique relationship with, and owe a special duty of care to, their customers. They contend that Edwin Sr.’s designation of the funeral home as his agent to ship Edwin Jr.’s remains could have created a fiduciaiy relation ship, and they suggest that the defendants’ own policies and advertising—which note the professionalism and public trust they are charged with in providing the “vital service” of cremation'—contributed to the establishment of a fiduciary relationship. To that end, plaintiffs allege that they placed their trust in the defendants to keep track of Edwin Jr.’s remains and ship them to Edwin Sr. in time for the wake and funeral, and that once they agreed to let the defendants cremate Edwin Jr., all information and control over die whereabouts of Edwin Jr.’s remains rested solely with the defendants.
No Kansas case has addressed the issue of whether a fiduciaiy duty arises between a funeral home and its customers, but other jurisdictions addressing the issue have held that such a relationship does not exist. See, e.g., Jackson v. McKay-Davis Funeral Home, Inc., 830 F. Supp. 2d 635, 649-50 (E.D. Wis. 2011) (no fiduciary relationship formed when funeral home assumed control over decedent’s remains and agreed to return remains to plaintiffs for burial); Kennedy v. Carriage Cemetery Services, Inc., 727 F. Supp. 2d 925, 931 (D. Nev. 2010) (no fiduciary duty where decedent cremated without required authorization); In re Tri-State Crematory Litigation, 215 F.R.D. 660, 683 (N.D. Ga. 2003) (“’[t]he mere fact that one reposes great trust and confidence in another does not serve to create a confidential relationship’ ”); Gakin v. City of Rapid City, 698 N.W.2d 493, 500 (S.D. 2005) (no fiduciaiy relationship existed between plaintiff and cemetery because plaintiff “did not relinquish control over confidential decision making inherent in fiduciary relationships”); Evans v. Chambers Funeral Homes, No. 89,900, 2008 WL 2766173, at *3 (Ohio App. 2008) (unpublished opinion) (holding that there is no fiduciary duty between funeral homes and their customers in wrongful burial cases); but see Pacheco v. Rogers & Breece, Inc., 157 N.C. App. 445, 452-53, 579 S.E.2d 505 (2003) (stating that “a personal service contract to provide funeral arrangements might, in appropriate circumstances, give rise to a fiduciary relationship,” but declining to find such a relationship existed in that case).
Plaintiffs rely on California caselaw which recognizes mortuaries and crematories owe an independent tort duty arising from a spe cial relationship with their customers. However, this duty is specific to California common law and is a separate relationship from a fiduciary duty. See Wilson v. Houston Funeral Home, 42 Cal. App. 4th 1124, 1140, 50 Cal. Rptr. 2d 169 (1996) (funeral home’s failure to provide family with appropriate and dignified burial service not a breach of fiduciary duty, but rather a breach of mortuary’s special relationship with the family, a separate relationship recognized by California common law).
There is no question that plaintiffs placed trust and confidence in the defendants’ ability to safeguard and ship Edwin Jr.’s remains in a timely manner. But
"[i]f a fiduciary duty were created in all instances where one party to a contract placed trust and confidence in the other party to complete such contract as agreed, every breach of contract claim could give rise to a counterpart breach of fiduciary duty claim, a result not supported by the law.’’ Jackson, 830 F. Supp. 2d at 650.
Plaintiffs entered into a contract widi Dove for cremation services. There is no evidence to suggest that the defendants were in a superior position to exercise influence over plaintiffs as a result of their contractual relationship. The contract itself does not give the funeral home an unfair advantage or relinquish Edwin Sr.’s control over decision making related to the shipment of Edwin Jr.’s remains, which are key characteristics of fiduciary relationships. Additionally, plaintiffs do not allege, and the record does not suggest, that the parties had unequal bargaining power based on unequal knowledge of the facts. In fact, plaintiffs’ claims do not arise from any exercise of undue influence by the defendants, but instead from the defendants’ actions of mislabeling Edwin Jr.’s remains, expressing a mistaken belief that the remains had been stolen, and failing to deliver the remains in time for the wake and funeral. Simply put, the facts here do not demonstrate anything beyond a normal relationship between a hereaved family and a funeral home. Thus, the district court properly held that no fiduciary relationship existed between the parties and granted summary judgment on this claim. ■ ■
5. Motion to amend petition to add claim for punitive damages
On the same day that the defendants filed their summary judgment motion, plaintiffs moved to amend their petition to assert a claim for punitive damages against Newcomer and Newcomer Funeral Services Group, Inc. on their claims of willful interference with Edwin Jr.’s remains, violations of the KCPA, and breach of fiduciary duty. Following its decision to grant summary judgment in favor of the defendants, the district court dismissed the punitive damages motion as moot.
On appeal, plaintiffs contend the district court erred in ruling that the punitive damages motion was moot because there are genuine issues of material fact relating to whether the defendants’ conduct in concealing the loss of Edwin Jr.’s remains and telling plaintiffs the remains must have been stolen was intentional, willful, and reckless. However, because the district court’s grant of summary judgment was proper on all claims, this issue is moot. See Bezona v. Tomson, 25 Kan. App. 2d 210, 214, 960 P.2d 252 (1998).
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Green, J.:
Kevin Frost pleaded guilty to one count of aggravated indecent liberties with a child in violation of K.S.A. 2010 Supp. 21-3504(a)(3)(A). The trial court sentenced Frost to life imprisonment with a mandatory minimum term of 25 years (hard 25) under K.S.A. 2010 Supp. 21-4643(a)(1)(C). On direct appeal, Frost’s principal argument is that his hard 25 life sentence constitutes cruel and unusual punishment under the United States Constitution. There is no merit in this contention. Accordingly, we affirm.
Frost entered a guilty plea to one count of aggravated indecent liberties with a child. The factual basis offered by the State at Frost’s plea hearing stated the following:
“In Sedgwick County, Kansas, on or about July 19tlr of 2010, [Frost] unlawfully and intentionally engage[d] in lewd fondling or touching of a child who [was] under 14 years of age, this being a child 12 years of age, with the initials of SMG, or of the defendant by the child, done with the intent to arouse or satisfy the sexual desires of the child, [Frost] or both, and at the time of this incident [Frost] was 18 years of age or older.”
Under this factual basis and after the trial court determined that Frost’s plea was knowingly and voluntarily made, the trial court accepted his plea and found him guilty. The trial court then sentenced Frost to a hard 25 life sentence as required under K.S.A. 2010 Supp. 21-4643(a)(1)(C).
Does Frost’s Sentence Constitute Cruel or Unusual Punishment?
Frost contends that his sentence constitutes cruel and unusual punishment under the United States Constitution. A categorical proportionality challenge under the Eighth Amendment to the United States Constitution does not require a review of the trial court’s factual findings. Instead, only questions of law are raised. Questions of law are subject to unlimited appellate review. See State v. King, 288 Kan. 333, 355, 204 P.3d 585 (2009); State v. Martinez, 288 Kan. 443, 449, 204 P.3d 601 (2009).
The Eighth Amendment to the United States Constitution prohibits inflicting cruel and unusual punishment. The Eighth Amendment has been made applicable to die states under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. See Robinson v. California, 370 U.S. 660, 667, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962). An Eighth Amendment challenge to a term-of-years sentence as disproportionate falls under two general classifications: (1) challenges that argue the term of years is grossly disproportionate given all the circumstances in a particular case; and (2) challenges where the court implements the proportionality standard by certain categorical restrictions. Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010); State v. Gomez, 290 Kan. 858, Syl. ¶ 4, 235 P.3d 1203 (2010).
We first observe that Frost does not argue that his hard 25 life sentence violates § 9 of the Kansas Constitution Bill of Rights or that his sentence is unconstitutional under the first proportionality classification recognized by federal law, i.e., a case-specific proportionality challenge. Consequently, we will focus only on Frost’s categorical proportionality challenge.
Frost argues that the second federal classification—a categorical proportionality challenge—leads to the conclusion that the hard 25 life sentence, as imposed on a certain class of offenders, is cruel and unusual punishment under the Eighth Amendment to the United States Constitution. Specifically, Frost describes the classification of offenders as those who have committed offenses “against minors, involving sexual contact, as opposed to a sexual act or penetration.” A statute is presumed constitutional, and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court has the authority and the duty to do so. Rural Water District No. 2 v. City of Louisburg, 288 Kan. 811, 817, 207 P.3d 1055 (2009) (civil); State v. Laturner, 289 Kan. 727, 735, 218 P.3d 23 (2009) (criminal).
Before we can reach the merits of Frost’s argument, we first must determine this threshold question: Does this court have jurisdiction to reach Frost’s constitutional argument?
The United States Supreme Court has not clarified if a categorical proportionality challenge is available to all criminal defendants. Historically, the categorical proportionality challenge was limited to death penalty cases. See e.g., Kennedy v. Louisiana, 554 U.S. 407, 128 S. Ct. 2641, 171 L. Ed. 2d 525 (2008) (capital punishment is impermissible for nonhomicide crimes against individuals); Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005) (categorical rules prohibiting the death penalty for defendants who committed their crimes before the age of 18); Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982); Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977). Even so, the Graham majority applied the categorical analysis to a juvenile offender who was sentenced to life imprisonment without the possibility of parole for a nonhomicidal crime. Graham, 130 S. Ct. at 2034.
After Graham, our Supreme Court noted that it was not clear if the United States Supreme Court would apply Grahams categor ical analysis in contexts other than death penalty cases and cases involving juvenile offenders sentenced to life imprisonment without the possibility of parole for nonhomicide crimes. See State v. Gomez, 290 Kan. 858, 865-66, 235 P.3d 1203 (2010). Since Graham, however, the United States Supreme Court has used the categorical proportionality analysis to find that mandatory life imprisonment without parole for offenders who committed homicide crimes as juveniles violates the Eighth Amendment’s prohibition on “cruel and unusual punishments.” Miller v. Alabama, 567 U.S. _, 132 S. Ct. 2455, 2460, 183 L. Ed. 2d 407 (2012).
Moreover, other courts—including our Supreme Court—have applied Graham to categorical proportionality challenges involving issues besides the death penalty. See State v. Mossman, 294 Kan. 901, 281 P.3d 153 (2012) (applying Graham to a categorical proportionality challenge arguing that lifetime postrelease supervision for aggravated indecent liberties with a child conviction constituted cruel and unusual punishment); State v. Cameron, 294 Kan. 884, 281 P.3d 143 (2012) (same); State v. Woodard, 294 Kan. 717, 280 P.3d 203 (2012). Thus, we will address Frost’s constitutional challenge.
Next, the threshold question is what should be the appropriate category to which the categorical proportionality analysis applies. In Graham, the United States Supreme Court indicated that its earlier decisions had considered two categorical subsets in the context of its death penalty cases: (1) the nature of the offense; and (2) the characteristics of the offender. As mentioned earlier, Frost describes the appropriate class of offenders as those who have committed offenses “against minors, involving sexual contact, as opposed to a sexual act or penetration.” The State disagrees and argues that Frost “is essentially trying to apply the analysis set forth in State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1978), to all offenders who are convicted of a specific sex offense rather than to a specific individual.” In other words, the State argues that Frost tries to categorize a much too narrow and specific class of offenders.
Regarding the nature or classification of the crime, Frost’s brief fails to cite to any examples or authority to support his position for such a specific and narrow classification. Indeed, our Supreme Court consistently has held that when an appellant challenges a sentence as categorically disproportionate, the nature of the offense that applies to the analysis is the category reflecting the crime of conviction. Mossman, 294 Kan. at 827-29; Cameron, 294 Kan. at 897. Thus, the appropriate nature of offense here is Frost’s crime of conviction—-aggravated indecent liberties with a child.
The steps for a categorical proportionality challenge are outlined in Graham and read as follows:
“The Court first considers objective indicia of society’s standards, as expressed in legislative enactments and state practice’ to determine whether there is a national consensus against the sentencing practice at issue. Roper, supra, at 572, 125 S. Ct. 1183. Next, guided by ‘the standards elaborated by controlling precedents and by the Court’s own understanding and interpretation of the Eighth Amendment’s text, history, meaning, and purpose,’ Kennedy, 554 U.S., at 421, the Court must determine in the exercise of its own independent judgment whether the punishment in question violates the Constitution. Roper, supra, at 572[, 125 S. Ct. 1183].” Graham, 130 S. Ct. at 2022.
Thus, our analysis begins with objective indicia of national consensus. “[T]he ‘clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country’s legislatures.’ ” 130 S. Ct. at 2023. Frost maintains that there is a national consensus against life imprisonment for aggravated indecent liberties with a child convictions because only three other states— Idaho, Montana, and Utah—have statutes similar to Kansas’ statute, i.e., statutes that permit life imprisonment for crimes involving sexual contact as opposed to sexual penetration. See K.S.A. 2010 Supp. 21-4643(a)(1)(C); Idaho Code § 18-1508 (2004); Mont. Code Ann. § 45-5-502 (2012); Utah Code Ann. § 76-5-404.1 (2008).
While less than a handful of states have statutes similar to K.S.A. 2010 Supp. 21-4643, Frost’s argument is flawed. “ ‘There are measures of consensus other than legislation.’ [Citation omitted.]” Graham, 130 S. Ct. at 2023. In fact, “sentencing practices are an important part of the Court’s inquiry into consensus.” 130 S. Ct. at 2023. Here, Frost’s argument that there is a national consensus against life imprisonment for this class of offenses is misplaced because he fails to mention that the hard 25 life sentence is not out of proportion to sentences imposed in other states which have withstood cruel and unusual punishment challenges.
For instance, in Adaway v. State, 902 So. 2d 746 (Fla. 2005), the Florida Supreme Court upheld the constitutionality of a statute that mandated life imprisonment without the possibility of parole for persons convicted of a crime similar to aggravated indecent liberties with a child, i.e., “capital sexual battery.” In Martin v. Commonwealth, 493 S.W.2d 714 (Ky. 1973), tire Kentucky Court of Appeals held that a 24-year-old’s life imprisonment without parole conviction for rape did not constitute cruel and unusual punishment. The Montana Supreme Court made a finding similar to the Martin court when it held that a sentence of life imprisonment without the possibility of parole for the crime of sexual intercourse without consent did not constitute cruel and unusual punishment. See State v. Thorp, 356 Mont. 150, 231 P.3d 1096 (2010). In State v. Alwinger, 236 Or. App. 240, 236 P.3d 755 (2010), die Oregon Court of Appeals held Üiat a mandatory 25-year prison term for a sexual offense against a child violated neither the United States nor the Oregon constitutional prohibitions against cruel and unusual punishment. Finally, the Iowa Supreme Court recendy held that a sentence of life imprisonment without parole for a second offense of sexual abuse did not violate the Eighdt Amendment’s prohibition against cruel and unusual punishment. State v. Oliver, 812 N.W.2d 636 (Iowa 2012).
While some of the cases described earlier involve sexual penetration of the victim, this line of cases still remains persuasive. Although Frost tries to narrow the category to offenses “against minors, involving sexual contact, as opposed to a sexual act or penetration,” his argument fails because the appropriate category is his crime of conviction—aggravated indecent liberties with a child. If Frost wanted to argue that his sentence was unconstitutional based on either his individual characteristics or the Kansas Constitution Bill of Rights, tiren he could have done so. Frost, however, has not chosen to challenge the constitutionality of his sentence under either of these theories. Thus, Frost has failed to show that there is a national consensus against life sentences for crimes involving aggravated indecent liberties with a child.
Moreover, the United States Supreme Court has held that a life sentence for even a nonviolent property crime can be constitutional. See Ewing v. California, 538 U.S. 11, 123 S. Ct. 1179, 155 L. Ed. 2d 108 (2003) (offender sentenced to 25 years to life for theft of a few golf clubs under California’s three-strikes recidivist sentencing scheme did not violate Eighth Amendment); Harmelin v. Michigan, 501 U.S. 957, 962-64, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) (first-time felony offender’s sentence of life without possibility of parole for a conviction of cocaine possession did not violate Eighth Amendment). In addition, our Supreme Court has held that an offender’s sentence of a minimum of 80 years to life for convictions of four counts of criminal indecent liberties with a child and three counts of aggravated criminal sodomy was not so oppressive as to amount to an abuse of discretion. State v. Nunn, 247 Kan. 576, Syl. ¶ 4, 802 P.2d 547 (1990). Finally, our Supreme Court recently addressed arguments substantially similar to Frost’s cruel and unusual punishment argument raised here. See Woodard, 294 Kan. at 717. Although the Woodard court did not address a categorical proportionality challenge in its opinion, the Woodard court did find that Kansas’ hard 25 life sentence under K.S.A. 2010 Supp. 21-4643(a)(1)(C) does not violate either the Kansas or United States Constitutions. 294 Kan. at 723. This line of cases and our Supreme Court precedent supports the conclusion that there is not a national consensus against hard 25 life sentences for offenders sentenced under K.S.A. 2010 Supp. 21-4643(a)(1)(C), and that these types of sentences are constitutional.
But “[cjommunity consensus, while ‘entitled to great weight,’ is not itself determinative of whether a punishment is cruel and unusual.” Graham, 130 S. Ct. at 2026. Indeed, the task of interpreting the Eighth Amendment to the United States Constitution remains a judicial responsibility. 130 S. Ct. at 2026. Thus, under the second step of a categorical proportionality challenge, this court must exercise independent judgment to determine whether the punishment in question violates the Constitution. 130 S. Ct. at 2022. “The judicial exercise of independent judgment requires consideration of the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question.” 130 S. Ct. at 2026. “In this inquiry the Court also considers whether tire challenged sentencing practice serves legitimate penological goals,” i.e., retribution, deterrence, incapacitation, and rehabilitation. A sentence that lacks any legitimate penological justification is by its nature disproportionate to the offense. 130 S. Ct. at 2028. Even so, “[c]riminal punishment can have different goals, and choosing among them is within a legislature’s discretion.” 130 S. Ct. at 2028.
To support his argument, Frost maintains that the penological goals of retribution and deterrence are not met because his crime is less serious tiran homicide but is punished more severely. Specifically, Frost contends that the penological goal of retribution is not met because “[t]he sentencing practice in Kansas does not conform to the offender’s personal culpability. The retribution is not proportional because the more severe level of life imprisonment is not being imposed on a convicted murderer. The case for retribution is not met.” As for the penological goal of deterrence, Frost maintains that “the punishment is grossly disproportionate in light of any justification of protecting the public. It is disproportionate because serious crimes such as second degree murder only require thirty-six months postrelease.”
Frost’s argument is misplaced. When the legislature enacted Jessica’s Law, which includes the hard 25 life sentence requirement, its intent was to protect children by removing perpetrators of sexual crimes against children from society. State v. Spencer, 291 Kan. 796, 823-24, 248 P.3d 256 (2011). The United States Supreme Court has noted that sex offenders represent a particularly severe threat to society and that they are more likely than any other category of offenders to reoffend after they are released from prison. McKune v. Lile, 536 U.S. 24, 32-33, 122 S. Ct. 2017, 153 L. Ed. 2d 47 (2002). Accordingly, our Supreme Court has held that “the State therefore has a particularly compelling interest in using incarceration as a means of protecting its youth from sexual offenders.” Woodard, 294 Kan. at 722.
Our Supreme Court recently rejected an argument substantially similar to Frost’s contention that the hard 25 life sentence is unconstitutional because aggravated indecent liberties is less severe than homicide but punished more severely. See Woodard, 294 Kan. at 723-24. In particular, the Woodard court stated the following when it rejected the appellant’s argument:
“This argument suffers from several flaws. In the first place, it assumes that murderers necessarily receive more lenient sentences in Kansas than violators of Jessica’s Law. This is not the case. In fact, the Kansas Criminal Code sets out a list of transgressions that constitute capital murder, which is an off-grid offense. K.S.A. 21-3439. Capital murder is subject to punishment by death. K.S.A. 21-4624. The penalty for homicide in Kansas may thus be much more severe than the penalties under Jessica’s Law. See K.S.A. 21-4638; K.S.A. 21-4643. The fact that the penalty for certain categories of homicide may be less severe than the penalties for other, nonhomicide crimes does not automatically render the penalties for the nonhomicide crimes unconstitutional. There is no strict linear order of criminal activity that ranks all homicides as the most serious crimes and all nonhomicide crimes as less serious, with the corresponding penalties necessarily ranking in diminishing durations of imprisonment.
“Furthermore, as the State points out, Jessica’s Law is not the only Kansas statute' that provides for more severe penalties for nonhomicide crimes than for certain categories of homicide. Compare, e.g., rape, K.S.A. 21-3502, and aggravated kidnapping, K.S.A. 21-3420, which are severity level 1 offenses, with reckless second-degree murder, K.S.A. 21-3402(b), which is a severity level 2 offense.” 294 Kan. at 723-24.
The Woodard court’s reasoning equally applies to the underlying facts here. Thus, Frost’s argument concerning the difference in severity for aggravated indecent liberties with a child and second-degree murder lacks merit.
The third legitimate reason for imprisonment, incapacitation, also justifies the sentence in question here. “Recidivism is a serious risk to public safety, and so incapacitation is an important goal.” Graham, 130 S. Ct. at 2029. As mentioned earlier, the United States Supreme Court has noted that sex offenders represent a particularly severe threat to society and that they are more likely than any other category of offenders to reoffend after they are released from prison. McKune, 536 U.S. at 32-33. Because of the high risk of recidivism for sex offenders, the hard 25 life sentence serves the penological goal of incapacitation.
The final penological goal, rehabilitation, is also justified by the hard 25 sentence under K.S.A. 2010 Supp. 21-4643(a)(1)(C). “The concept of rehabilitation is imprecise; and its utility and proper implementation are the subject of substantial, dynamic field of inquiry and dialogue.” Graham, 130 S. Ct. at 2029. “It is for legislatures to determine what rehabilitative techniques are appropriate and effective.” 130 S. Ct. at 2029. K.S.A. 21-4643(a)(1)(C) includes a mandatory term of life imprisonment with a mandatory minimum term of 25 years for offenders convicted of aggravated indecent liberties with a child. Nevertheless, K.S.A. 2010 Supp. 21-4643(a)(1)(C) does not include a provision stating that aggravated indecent liberties with a child offenders are not eligible for parole after they have served the mandatory minimum 25 years. While K.S.A. 2010 Supp. 21-4643(a)(1)(C) does not guarantee offenders’ eventual freedom, it does not foreclose altogether their opportunity to obtain release from prison “based on demonstrated maturity and rehabilitation." Graham, 130 S. Ct. at 2030. Because K.S.A. 2010 Supp. 21-4643(a)(1)(C) does not state that aggravated indecent liberties with a child offenders shall be sentenced to life without parole, those offenders have the possibility of reentering the community, which would allow them to show that they have been rehabilitated since their conviction.
In sum, penological theory is adequate to justify the hard 25 life sentence under K.S.A. 2010 Supp. 21-4643(a)(1)(C) because the accepted penological goals of retribution, deterrence, incapacitation, and rehabilitation are met. Consequently, tire hard 25 life sentence under K.S.A. 2010 Supp. 21-4643(a)(1)(C) does not constitute cruel and unusual punishment under the Eighth Amendment to the United States Constitution.
For the foregoing reasons, Frost’s hard 25 life sentence under K.S.A. 2010 Supp. 21-4643(a)(1)(C) for his aggravated indecent liberties with a child conviction is not categorically disproportionate and, therefore, is not cruel and unusual punishment under the Eight Amendment to the United States Constitution. Accordingly, we affirm the trial court’s decision.
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Bruns, J.:
This is the third appeal in a dispute over access to real property. The Wichita Terminal Association, Burlington Northern & Santa Fe Railway Company, and Union Pacific Railroad (collectively WTA) own and operate railroad tracks in Wichita. F.Y.G. Investments, Inc., andTreatco, Inc. (collectively FYG) own real property adjacent to the WTA’s tracks. In 2008, the WTA was ordered to provide access—by way of a permanent railroad crossing—from a public street to FYG’s real property.
In the present appeal, although the WTA does not dispute the district court’s authority to require it to install a permanent railroad crossing to provide access to FYG’s property, it contends that federal law preempts state courts from requiring interstate rail carriers to remove or reconstruct existing tracks in order to install a permanent railroad crossing. Specifically, the WTA argues that provisions of the Interstate Commerce Commission Termination Act (ICCTA), 49 U.S.C. 10101 et seq. (2006), preempted the remedies ordered by the district court in a journal entry filed on Januaiy 25, 2012. Because we find that federal .preemption is applicable to some of the remedies ordered by the district court, we affirm in part, vacate in part, and remand with directions.
Facts
Wichita City Ordinance No. 5436—which was enacted in 1916—grants the WTA the right to construct, operate, and maintain railroad tracks along 25th Street in Wichita. Pursuant to the ordinance, the WTA continues to own and operate two sets of parallel railroad tracks that run within a 30-foot right-of-way located south of 25th Street. Burlington Northern & Santa Fe and Union Pacific use the tracks as an interchange to move rail traffic between their rail lines. In addition, they temporarily store railcars on tire tracks to facilitate the interchange of rail traffic.
In 1996, FYG purchased approximately 27 acres of undeveloped land directly to the south of the WTA’s railroad tracks. After the WTA began repairing its railroad tracks in September 2002, FYG claimed that the WTA was a trespasser. Thereafter, on November 6, 2002, the WTA initiated this action, seeking to enjoin FYG from interfering with its right to maintain the railroad tracks. In response, FYG filed a counterclaim requesting an easement to allow vehicles to cross the WTA’s tracks in order to access its property from 25th Street.
The district court granted summary judgment in favor of the WTA on January 7, 2004, finding that FYG had no legal right to ingress and egress across the WTA’s railroad right-of-way. The district court also found that the city ordinance gave the WTA the right to construct, operate, and maintain railroad tracks along 25th Street. On appeal, a panel of this court reversed the district court’s ruling and remanded the case to the district court “to determine if an injunction to provide- ingress and egress [was] appropriate.” See Wichita Terminal Association v. F.Y.G. Investments, Inc., No. 92,132, 2005 WL 824042, *4 (Kan. App. 2005) (unpublished opinion) (Wichita Terminal Association I).
On February 20, 2007, the district court held an evidentiary hearing on remand. After hearing the testimony of several witnesses, the district court announced its decision on the record. The district court found that 25th Street—although undeveloped—is a public street and that the city ordinance required the WTA to provide ingress and egress over its railroad tracks to FYG’s real property. In addition, the district court announced that it was entering a mandatory injunction requiring the WTA to construct and install a permanent railroad crossing and, in the interim, to keep a temporary crossing open to provide access to FYG’s land adjacent to the railroad tracks. Following the hearing, the district court filed a minute order and directed FYG’s attorney to prepare a journal entry.
Because the parties could not agree on the terms of the journal entiy, one was not filed until August 1, 2008. In the journal entiy, the district court ordered the WTA to:
“construct and install, within 90 days after [FYG’s] presentation to [the WTA] of sealed engineering drawings ..., (i) a permanent railroad crossing at least 32 feet in width at the point where the centerline of the dedicated Emporia Court street intersects with the railroad tracks, and (ii) permanent railroad crossing protection in compliance with Federal Railroad Administration requirements.”
No appeal was filed from this journal entry, and it became a final order of the district court.
On December 18, 2008, FYG presented the WTA with a set of engineering drawings approved by the City of Wichita for the construction of a permanent railroad crossing at Emporia Court. Under the terms of the journal entiy, the WTA was obligated to complete a permanent railroad crossing at Emporia Court by March 22, 2009. Because work on the project had not commenced as of April 2, 2009, FYG filed a motion for order to appear and show cause. The motion requested that the court hold the WTA in contempt for failing to begin work on the Emporia Court crossing and for failing to keep the temporaiy crossing open as required by the journal entiy filed on August 1, 2008.
In response, the WTA moved for relief from judgment under K.S.A. 60-260(b). In die motion, the WTA argued that the installation of a permanent railroad crossing at the Emporia Court lo cation would be impractical, if not impossible, because the placement of crossing protection devices would impede the public right-of-way on 25th Street and would violate the Manual on Uniform Traffic Control Devices (MUTCD). Moreover, in its response to FYG’s contempt motion, the WTA also argued that the Surface Transportation Board (STB) had express or implied jurisdiction to review the matter under the ICCTA because a railroad crossing at Emporia Court would have a substantial impact on interstate commerce.
On June 9, 2009, a different district judge conducted an eviden-tiary hearing to consider both FYG’s contempt motion and the WTA’s K.S.A. 60-260(b) motion. At the hearing, tire judge questioned an employee of Burlington Northern & Santa Fe regarding whether the WTA could construct the Emporia Court crossing in compliance with the MUTCD if it removed the north track to allow more room for the placement of crossing protection devices. The judge also questioned the employee regarding whether the WTA could install an undeqpass or overpass at Emporia Court.
At the conclusion of tire hearing, the district court granted the WTA’s K.S.A. 60-260(b) motion and denied FYG’s contempt motion. Specifically, the district court found that “the installation of traffic protection for a crossing over two tracks at Emporia Court is practically impossible . . . without impeding traffic on the unimproved 25th Street.” Hence, the district court concluded that the WTA had shown good cause for failing to timely construct and install a permanent crossing at Emporia Court. The district court, however, rejected the WTA’s suggestion that the permanent crossing be placed at the location of the temporary crossing because no appeal was taken from the journal entry filed on August 1, 2008.
In a journal entry entered on July 20, 2009, the district court ordered the WTA:
“to construct and install (i) a permanent railroad crossing at least 32 feet in width at the point where the centerline of the dedicated Emporia Court Street intersects the railroad tracks, and (ii) permanent railroad crossing protection in compliance with all federal, state, and local laws, regulations, and ordinances. This crossing shall not impede in any manner in the public right-of-way of 25th Street. [The WTA] must remove the north track in the area of the crossing if that is the only means to construct the crossing and crossing protection without impeding 25th Street... . [The WTA] must construct the crossing and crossing protection within 90 days after the entry of [this] Journal Entry. ... All other provisions of the August 1, 2008 Journal Entry . . . will remain in effect.”
On the same day the journal entry was filed, the WTA filed an objection to the proposed journal entry, arguing that it contained inaccurate statements and failed to remedy the problems with the August 2008 journal entiy. Further, the WTA argued that the district court exceeded its jurisdiction and authority because the removal of railroad tracks falls under the exclusive jurisdiction of the ICCTA. The WTA also argued that because of its substantial impact on interstate commerce, the ICCTA impliedly preempted an order requiring removal of the north track. In addition, the WTA argued that even if the north track were removed, compliance with the MUTCD was not possible without placing crossing protection devices that would impede 25th Street. The WTA also requested that the action be stayed so that it could “pursue appropriate authorizations from the STB before proceeding any further with any proposed scenario that would require interference with the existing tracks.” It appears from a review of the record that the court never ruled upon the objection or the request for stay.
In tire second appeal, a panel of this court affirmed the district court’s granting of die WTA’s K.S.A. 60-260(b) motion “based on the impossibility of the remedy ordered” in the journal entry filed on August 1, 2008. But the panel reversed that portion of the district court’s ruling in which it “sua sponte required a remedy [of removal of a railroad track] that was neidier proposed by the parties nor supported by the evidence.” Accordingly, die case was again remanded to the district court to “give both parties -a limited time period in which to propose and address die options for viably implementing the injunction in compliance with the MUTCD, including but not limited to removal of the north track at Emporia Court and/or any other legally compliant crossing.” Although the panel mentioned the issue of federal preemption, it did not reach the issue in its opinion. Wichita Terminal Association v. F.Y.G. Investments, Inc., No. 103,015, 2011 WL 588505, at *11 (Kan. App. 2011) (unpublished opinion) (Wichita Terminal Association II).
Following the second remand, the original district judge held an evidentiary hearing. Following the hearing, the district court entered a journal entry filed on January 25, 2012, finding that “the most viable option for providing access to F.Y.G.Is real property is removal of the north track coupled with the laying of a new track south of the existing tracks.” Moreover, the district court found “that removal of the north track would allow the Emporia Court location to be built in compliance with the MUTCD.” Based on these findings, the district court ordered that the WTA must “complete construction of the permanent crossing [at Emporia Court] by April 1, 2012.” In the interim, the district court required the WTA to “keep open the temporary timber crossing at the northwest comer of F.Y.G.’s property ... to provide ingress and egress from 25th Street to F.Y.G.’s property.” Once again, the issue of federal preemption was not decided.
Subsequently, the WTA filed a timely notice of appeal.
Analysis
Contentions of the Parties
In the present appeal, the WTA contends that the ICCTA preempted the remedies ordered by the district court on January 25, 2012. Specifically, the WTA argues that the ICCTA places the construction and removal of railroad track under the exclusive jurisdiction the STB. Moreover, the WTA contends that the remedies imposed by the district court unreasonably burden interstate commerce. The WTA, however, does not challenge the district court’s jurisdiction to require it to provide access to FYG’s real property from the adjacent public street.
In response, FYG makes three arguments. First, FYG contends that the WTA did not timely raise federal preemption as a defense. Second, FYG argues that even if the issue of federal preemption was raised in a timely manner, it is not a justification for the WTA to deny FYG’s previously determined right of access to a public street. Third, FYG contends that the district court’s order was reasonable because the Emporia Court location is the most viable option for a permanent railroad crossing and that the crossing can be constructed in compliance with the MUTCD.
Federal Preemption of State Law
The Supremacy Clause of Article VI of the United States Constitution establishes the doctrine of federal preemption:
“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 Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const, art. VI, cl. 2.
“Simply put, the Supremacy Clause invalidates state laws that interfere with, or are contrary to, federal law.” Board of Miami County Comm’rs v. Kanza Rail-Trails Conservancy, Inc., 292 Kan. 285, 294, 255 P.3d 1186 (2011). In determining whether federal preemption is applicable in a given case, we must look to “the language of the pre-emption statute and the ‘statutory framework’ surrounding it.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 485-86, 116 S. Ct. 2240, 135 L. Ed. 2d 700 (1996). Accordingly, because federal preemption involves an interpretation of law, our review is unlimited. See Zimmerman v. Board of Wabaunsee County Comm’rs, 289 Kan. 926, 974-75, 218 P.3d 400 (2009); see also Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, Syl. ¶ 18, 296 P.3d 1106 (2013).
The Kansas Supreme Court has identified several categories and subcategories of federal preemption:
“Broadly speaking, a preemption analysis divides into two principal categories: express and implied preemption. Implied preemption is further divided into two analytical subcategories: field preemption and conflict preemption. Then, yet a third strata of analytical subcategories is used when examining claims of conflict preemption: per se conflict and obstacle preemption. [Citations omitted.] Even though it is analytically helpful to consider the relationship of these categories, it must be remembered that these analytical categories are not ‘rigidly distinct.’ English, 496 U.S. at 79 n.5. For example, ‘field pre-emption may be understood as a species of conflict pre-emption: A state law that falls within a pre-empted field conflicts with Congress’ intent (either express or plainly implied) to exclude state regulation.’ English, 496 U.S. at 79 n.5.” Board of Miami County Comm’rs, 292 Kan. at 294-95.
Express preemption is applicable “when Congress makes its intent known through explicit statutory language.” 292 Kan. at 295 (citing English, 496 U.S. at 79). On the other hand, implied preemption is applicable “when Congress does not expressly preempt state law, but its intent to do so can be inferred from a statutory or regulatory scheme.” 292 Kan. at 296 (citing English, 496 U.S. at 79). Thus, federal preemption is ultimately a question of congressional intent. See Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S. Ct. 2608, 120 L. Ed. 2d 407 (1992).
In the present appeal, the WTA argues both express and implied preemption. Although the WTA asserts that the ICCTA expressly preempts state law regarding the removal and reconstruction of railroad tracks, it concedes that federal law does not expressly preempt the resolution of railroad crossing disputes by state courts. Nevertheless, it argues the congressional intent to preempt state courts from entering orders that would place an unreasonable burden on interstate commerce can be inferred from the language of the ICCTA.
Interstate Commerce Commission Termination Act
Congress enacted the ICCTA in 1995. The ICCTA abolished the Interstate Commerce Commission (ICC) and created the STB to regulate rail transportation in the United States. 49 U.S.C. § 10501(a)(1) (2006). Prior to the adoption of the ICCTA, there was confusion regarding the roles of federal and state governments to regulate railroads. Hence, the ICCTA was enacted “to reflect the direct and complete preemption of state economic regulation of railroads.” H.R. Rep. 104-311, at 95-96 (1995).
The ICCTA provides that the jurisdiction of the STB over:
“(1) transportation by rail carriers, and die remedies provided in this part with respect to rates, classifications, rules (including car service, interchange, and other operating rules), practices, routes, services, and facilities of such carriers; and
(2) the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if tire tracks are located, or intended to be located, entirely in one State, is exclusive.” (Emphasis added.) 49 U.S.C. § 10501(b).
Furthermore, tire ICCTA contains an express preemption provision, which states:
“Except as otherwise provided in this part, the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law.” (Emphasis added.) 49 U.S.C. § 10501(b).
Accordingly, “congressional intent is clear, and the preemption of rail activity is a valid exercise of congressional power under the Commerce Clause.” City of Auburn v. U.S. Government, 154 F.3d 1025, 1031 (9th Cir. 1998). “If a railroad line falls within [the ICCTA’s] jurisdiction, the STB’s authority over abandonment is both exclusive and plenary.” Railroad Ventures, Inc. v. Surface Transp. Bd., 299 F.3d 523, 530 (6th Cir. 2002). In other words, “Congress has delegated to the [STB] exclusive jurisdiction to regulate Transportation by rail carriers’ and 'the construction, acquisition, operation, abandonment, or discontinuance’ of rail facilities . . . with the instruction that the agency 'ensure the development and continuation of a sound rail transportation system’ [citation omitted].” City of South Bend, IN v. Surface Transp. Bd., 566 F.3d 1166, 1168 (D.C. Cir. 2009).
In Emerson v. Kansas City Southern Ry. Co., 503 F.3d 1126, 1130 (10th Cir. 2007), the United States Court of Appeals for the Tenth Circuit stated:
“ ‘[T]he courts have found two broad categories of state and local actions to be preempted regardless of the context or rationale for die action. The first is any form of state or local permitting or preclearance diat, by its nature, could be used to deny a railroad the ability to conduct some part of its operations or to proceed with activities diat the Board has authorized.
“ ‘Second, diere can be no state or local regulation of matters directiy regulated by the Board—such as the construction, operation, and abandonment of rail lines (see 49 U.S.C. §§ 10901-10907); railroad mergers, line acquisitions, and other forms of consolidation (see 49 U.S.C. §§ 11321-11328); and railroad rates and service (see 49 U.S.C. §§ 10501(b), 10701-10747, 11101-11124).’ ”
Moreover, the Kansas Supreme Court has recognized that “there are areas related to railroads and the possession and use of railroad right-of-way where Congress expressly preempts state law,” noting:
“[T]he federal regulation of railroads ... is botir pervasive and comprehensive. See, e.g., Chicago & N.W. Tr. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 318, 101 S. Ct. 1124, 67 L. Ed. 2d 258 (1981). Numerous court decisions recognize that Congress has exercised preemptive, if not exclusive, power to regulate the railroads. See, e.g., Norfolk & Western R. Co. v. Train Dispatchers, 499 U.S. 117, 128, 111 S. Ct. 1156, 113 L. Ed. 2d 95 (1991) (Congress’ intent to exempt railroads from antitrust laws and all other laws, including state and municipal laws, was ‘clear, broad and unqualified’); Chicago & N.W. Tr. Co., 450 U.S. at 320 (ICC’s [now STB’s] abandonment authority is ‘plenary’ and ‘exclusive’); Missouri Pacific R.R. Co. v. Stroud, 267 U.S. 404, 408, 45 S. Ct. 243, 69 L. Ed. 683 (1925) (Congress’ acts concerning interstate commerce are ‘supreme and exclusive’).
“In addition, through other legislation, Congress has exercised federal authority over railroad rights-of-way when possessed for railway purposes. For example, the STB preemption statute provides that the STB’s jurisdiction over ‘the construction, acquisition, operation, abandonment, or discontinuance' of spur, industrial, team, switching, or side tracks, or facilities ... is exclusive.’ 49 U.S.C. § 10501(b) (2010). This provision continues with an express statement of preemption: ‘[T]he remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law.’ 49 U.S.C. § 10501(b).” Board of Miami County Comm’rs, 292 Kan. at 295-98.
As such, it is apparent “that a state or local law that permits a non-federal entity to restrict or prohibit the operations of a rail carrier is preempted under the ICCTA.” Norfolk Southern Ry Co. v. City of Alexandria, 608 F.3d 150, 158 (4th Cir. 2010). But states and municipalities “may exercise traditional police powers ... to the extent that the regulations protect public health and safety, are settled and defined, can be obeyed with reasonable certainty, entail no extended or open-ended delays, and can be approved (or rejected) without tire exercise of discretion on subjective questions.” Green Mountain R.R. Corp. v. Vermont, 404 F.3d 638, 643 (2d Cir. 2005). Therefore, the ICCTA “preempts all state laws that may reasonably be said to have the effect of managing or governing rail transportation, while permitting the continued application of laws having a more remote or incidental effect on rail transportation.” Adrian & Blissfield R. Co. v. Village of Blissfield, 550 F.3d 533, 539 (6th Cir. 2008).
Application of ICCTA
FYG argues that the WTA waived its right to assert federal preemption as a defense. Based on our review of the record, however, we find that the WTA timely asserted that the STB has exclusive jurisdiction over the removal of railroad track. As noted in Wichita Terminal Association II, it was the district judge handling the hearing held on June 9, 2009, who sua sponte raised the possibility of removing the north railroad track to accommodate the construction of a crossing at Emporia Court. As such, the panel in Wichita Terminal Association II found that “the district court abused its discretion in ordering removal of the track” and it reversed “that portion of the [July 20, 2009] order in which the district court sua sponte ordered a remedy that was neither proposed by the parties nor supported by the evidence . . . .” 2011 WL 588505, at *6, 11.
A review of the record reveals that counsel for the WTA immediately questioned the district courts authority to order the removal of railroad track when the judge first raised this issue at the hearing on June 9, 2009. In addition, the WTA filed an objection to the proposed journal entry following the hearing on the grounds that the district court exceeded its jurisdiction and authority because the removal of railroad tracks falls under the exclusive jurisdiction of the STB as set forth in the ICCTA. Furthermore, the WTA expressly presented the issue of STB jurisdiction to a panel of this court in Wichita Terminal Association II. In particular, the WTA argued in the second appeal that the remedy ordered by the district court was “preempted by the ICCTA because it forces abandonment of the track and results in an unreasonable burden on interstate commerce.” 2011 WL 588505, at *6. Although the panel in Wichita Terminal Association II did not reach the issue, we conclude that the WTA timely asserted and therefore preserved the issue of federal preemption.
As indicated above, the ICCTA expressly grants exclusive jurisdiction to the STB over “the construction, acquisition, operation, abandonment, or discontinuance” of railroad tracks. 49 U.S.C. § 10501(b)(2). Likewise, 49 U.S.C. § 10903(d) (2006) requires the approval of the STB before an interstate rail carrier can be lawfully abandoned. “In general, this abandonment licensing requirement applies to all carrier lines, including both ‘main’ lines and ‘branch’ lines . . . .” Joseph R. Fox—Petition for Declaratory Order, 2009 WL 1383503, at *2 (S.T.B. 2009). Furthermore, even a railroad track “excepted under 49 U.S.C. 10906 from the need to obtain Board authority for the construction, abandonment, or operation, is nevertheless subject to the Board’s jurisdiction and is not subject to state or local regulation.” 2009 WL 1383503, at *3; see also United Transp. Union v. Surface Transp. Bd., 183 F.3d 606, 612 (7th Cir. 1999).
In Port City Properties v. Union Pacific R. Co., 518 F.3d 1186, 1188 (10th Cir. 2008), the Tenth Circuit noted that 49 U.S.C. § 10906 provides that “the STB has no authority over the regulation of spur and industrial tracks as opposed to main railroad lines.” But “[tjhat authority is left entirely to railroad management who may contract services as they see fit.” 518 F.3d at 1189. “In sum, Congress granted exclusive jurisdiction to the STB over the construction, operation, and abandonment of spur or industrial lines, thereby precluding state regulation” and “then withdrew regulation of such lines from the STB leaving their management solely to the respective railroads.” 518 F.3d at 1189.
In Union Pacific Railroad Company-Judgment with Order, 2001 WL 1396718 (S.T.B. 2001), the STB held that a city could not require a rail carrier to remove tracks without filing an application for adverse abandonment. In reaching this holding, the STB noted that “[t]he board and tire courts have consistently held that such local regulation [of railroad carriers] is precluded.” 2001 WL 1396718, at *3 (citing New Orleans Terminal Company v. Spencer, 366 F.2d 160, 163-64 [(5th Cir. 1966]) (an ordinance requiring the removal of railroad crossings was unenforceable); City of Des Moines, Iowa v. Chicago & N.W. Ry. Co., 264 F.2d 454, 457-60 (8th Cir. 1959) (city could not oust a rail carrier from using streets without abandonment authority).
Although it is unfortunate that this action must be further delayed, we are obligated to conclude as a matter of law that the STB has exclusive jurisdiction over the question of whether the WTA should be required to remove the north track and to construct a new track south of tire existing tracks. Accordingly, we vacate those portions of the journal entry filed on January 25, 2012, which purport to require the “removal of the north track coupled with the laying of a new track south of the existing tracks.” We also conclude that it is within the exclusive jurisdiction of the STB to determine whether constructing a permanent railroad crossing at Emporia Court is impossible or would unreasonably burden interstate commerce—even with the relocation of north track—as the WTA contends.
Under the ICCTA, a rail carrier or a third party may file a petition seeking a declaration of abandonment of a railroad track. See Modern Handcraft, Inc., 363 I.C.C. 969, 971 (1981) (adjacent landowner has standing to bring adverse abandonment action). During oral argument, counsel for the WTA represented that his client was willing to file an application with the STB for determination of the issues within its jurisdiction. Because the WTA has been under an order to provide access to FYG’s real property by installing a permanent railroad crossing at Emporia Court for several years, we believe it is appropriate for the WTA to initiate an action before the STB to obtain a determination of those questions within the STB’s jurisdiction. Of course, if FYG would prefer to commence an adverse abandonment action in the STB, it may do so.
“In the case of an ‘adverse’ abandonment proceeding—one brought by a party other than the carrier whose operating authority is at issue—[a] finding that the public convenience and necessity do not require . .. operation of the track by the carrier in question removes [the STB’s] exclusive and plenary jurisdiction as a regulatory obstacle to abandonment, thereby enabling the parties to undertake other legal remedies .... Where no overriding federal interest exists, [the STB] will not allow [its] jurisdiction to be used to shield a carrier from the legitimate processes of state law. [Citation omitted.]” CSX Corporation and CSX Transportation, Inc.—Adverse Abandonment Application, 2002 WL 127074, at *4 (S.T.B. 2002).
Thus, the STB may impose appropriate remedies and/or decide if “removal of [its] jurisdiction as a shield against state law is in the public interest.” 2002 WL 127074, at *4.
Finally, we have no reason to dispute the district court’s conclusion that “the most viable option for providing access to F.Y.G.’s real property is removal of the north track coupled with the laying of a new track south of the existing tracks.” Moreover, we have no reason to dispute the district court’s conclusion “that removal of tire north track would allow the Emporia Court location to be built in compliance with the MUTCD.” Based on our review of the record, we find that substantial evidence supported both of these conclusions. To enforce such a remedy, however, the STB must either relinquish its jurisdiction to the district court or approve of the removal and reconstruction of track to allow for the installation of a permanent railroad crossing at Emporia Court.
Conclusion
Accordingly, we remand this case to the district court and direct it to enter an order requiring the WTA to file an application with the STB to resolve any issues concerning the STB’s jurisdiction no later than 60 days following the issuance of a mandate from this court. Until the STB has completed its review, the district court shall retain jurisdiction to enforce its order requiring the WTA to keep open a temporary crossing over its railroad tracks in order to provide reasonable access from 25th Street to FYG’s real property.
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Standridge, J.:
Paul Hunt appeals from the district court’s decision to deny his K.S.A. 60-1507 motion after an evidentiary hearing. Hunt claims the district court erred in denying his ineffective assistance of counsel claims and in denying his claim for relief under Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). Because Hunt fails to establish that counsel was deficient or that he was prejudiced by the Doyle violation, we affirm.
Facts
In its opinion affirming Hunt’s conviction on direct appeal, our Supreme Court summarized the material facts as follows:
“On Sunday, June 23, 2002, family members of Mary Sue Taylor, a resident of Fort Scott, Rourbon County, Kansas, reported to law enforcement that [Mary Sue] could not be located. [Maiy Sue’s] vehicle was parked in the driveway, her house was unlocked, the television was on, and items that she would normally take with her were still in the house. Nothing appeared out of the ordinaiy inside or outside the house. Neighbors reported last seeing [Maiy Sue] the morning of June 20. [Maiy Sue] had not appeared at her job on June 22 and 23.
“At the time of the disappearance, Hunt and his minor child, Ryan, had been living with [Mary Sue], albeit Hunt and his mother had a volatile, contentious relationship. Hunt told police that he last saw his mother at about 10:40 p.m. on June 20, before he left for work. Upon completing his shift on the morning of June 21, Hunt did not return to his residence before going to the house of his girlfriend, Tammy Rees, in Cartersville, Missouri. His son, Ryan, was also out of town, visiting maternal grandparents. After spending the weekend with [Tammy], Hunt returned to the Fort Scott home about 10:30 p.m. on Sunday, June 23, where the investigation into [Mary Sue’s] whereabouts had commenced.
“Several days later, on June 29, [Maiy Sue’s] body was found floating in a strip pit in Crawford County. The body was wrapped in a gray tarp which was tied with rope and taped, and the tarp-wrapped body was inside a sleeping bag which had also been wrapped with rope and tape. A rope was around the victim’s neck. The coroner opined that [Maiy Sue] died of ligature asphyxiation and ruled the death a homicide, albeit he could not determine the date of death. The coroner described the manner in which the body had been wrapped and secured with rope and tape as a fairly complicated and involved mechanism.
“Hunt’s behavior both before and after the discoveiy of [Maiy Sue’s] body caused some suspicion. The weekend of [Mary Sue’s] disappearance, Hunt took some of [Mary Sue’s] clothing to his girlfriend, saying that his mother wanted the girlfriend to have it. He also brought camping equipment and stored it in his girlfriend’s shed. Later testing revealed that two ropes found with the equipment were consistent with the color, construction, and chemical composition of the rope around die victim’s neck.
“On the day before the discovery of the body, Hunt and a friend were leaving a convenience store in Missouri when police stopped Hunt’s pickup. Hunt declared to his friend: ‘[M]an, I’m in trouble,’ and fled afoot after imploring his friend not to disclose that Hunt was driving. The police did not pursue Hunt, and the friend thought Hunt was concerned about being arrested for driving under the influence.
“The day after die body was discovered, Hunt called his girlfriend to say that he was leaving town. He left his son with a brother but did not tell family members he was leaving. The following day he asked his girlfriend to bring soda and cigarettes to a park in Joplin, Missouri, where he planned to spend the night. He then rode a freight train to Kansas City, but then hitched a ride on a southbound freight train, eventually winding up in Emporia. There, he called his brother, Patrick, on July 4 asking Patrick to get him a motel room and to provide him with a ride back to Fort Scott. .
“Hunt did not attend his mother's funeral, ostensibly because his brother, Patrick, and an uncle were accusing Hunt of being the murderer. Hunt subsequently left the Fort Scott area, first going to live with Ryan’s maternal grandparents in Missouri. He was in Pennsylvania when he was arrested in March 2005.
“Police also located a witness who had observed a pickup truck parked in a low-lying area, adjacent to a strip pit situated on the Missouri side of the Missouri-Kansas border, near evening on June 20, 2002, the last day that [Mary Sue] was seen alive. The witness, who owned land containing strip pits in the area, proceeded to investigate whether someone was fishing on his land. As the witness approached tire pickup, he observed a person initially standing next to the passenger door who then entered the pickup on the driver’s side. Upon making contact with the pickup driver, tire witness observed a motionless person in the passenger seat covered with a blanket or sleeping bag. In answer to the witness’ inquiry, the pickup driver said tire passenger was his sleeping fiance. Being suspicious of a person being covered up with a blanket in hot weather, tire witness went to the local sheriff s office to report his concerns. At trial, the witness could not identify Hunt, other than to say that he was about the same size as the pickup driver. Likewise, tire witness’ recollection of the pickup was limited to describing it as being a dark color which comported with the color of Hunt’s pickup.
“Because [Mary Sue’s] body was discovered in Crawford County, Hunt was tried in that county. The jury convicted him of first-degree, premeditated murder.” State v. Hunt, 285 Kan. 855, 857-59, 176 P.3d 183 (2008).
At Hunt’s jury trial, Agent Frank Papish with the Kansas Bureau of Investigation (KBI) testified on behalf of the State about tire 2-day interview with Hunt in Pennsylvania after Hunt was arrested for Mary Sue Taylor’s murder. On the first day of the interview, Hunt told Papish he would talk about his mother the next morning and tell Papish what he needed to know. On the second day of the interview, Hunt did not tell Papish what happened to his mother.
Hunt testified in his own defense at trial. During his testimony, the State asked Hunt whether he told Papish everything he knew about the murder of his mother. Hunt responded to the State’s question by stating that he asked for an attorney, and Papish left the interview. The district court immediately called a bench conference and asked Hunt’s counsel if he wanted an instruction to the jury to disregard Hunt’s response. Hunt’s counsel declined the request for an instruction. After the State rephrased the question, Hunt replied, “There was nothing to tell.”
While cross-examining Hunt’s brother Patrick Hunt, Hunt’s counsel asked if Patrick requested a warrant to be issued for Plunt’s • arrest based on Patrick’s belief that Hunt murdered their mother. Hunt’s counsel tiren asked if Patrick was “definitely sure today that [Hunt] killed her.” The State immediately objected and no answer was given. Hunt’s counsel also elicited testimony from Chris Hollingsworth, Mary Sue’s son and another brother of Hunt, stating that several members of the family, including Chris, had believed Hunt was responsible for Mary Sue’s disappearance.
The jury ultimately convicted Hunt of first-degree, premeditated murder. After the Supreme Court issued its opinion affirming Hunt’s conviction, Hunt filed a motion pursuant to K.S.A. 60-1507 alleging ineffective assistance of trial counsel. At a preliminary hearing on the motion, the district court summarily denied relief on all claims except for the one alleging counsel’s ineffectiveness in failing to challenge venue. After an evidentiary hearing on that claim, the court denied Hunt’s motion in its entirety.
Hunt appealed and, in an unpublished opinion, a panel of this court affirmed tire district court’s finding and conclusions on some issues but reversed and vacated the district court’s decision on others and remanded the case with directions. Specifically, tire panel found that Hunt was entitled to a full evidentiary hearing on his ineffective assistance claims regarding (1) counsel’s failure to object on relevancy grounds to Papish’s testimony; (2) counsel’s failure to object to questions posed by the State to Hunt regarding his meeting with Papish; (3) counsel’s failure to request a cautionary instruction after the Doyle violation; and (4) counsel’s actions in eliciting opinion testimony from Hunt’s brothers on the question of guilt. Hunt v. State, No. 103,073, 2011 WL 1475778, at *9-10 (Kan. App.) (unpublished opinion), rev. denied 293 Kan. 1106 (2011).
The district court held that evidentiary hearing on February 24, 2012. Based on the evidence presented at the hearing, the court found Agent Papish’s testimony to be highly relevant outside the scope of Doyle; thus, Hunt’s trial counsel was not ineffective in failing to object to it as irrelevant. Relying on the Kansas Supreme Court’s decision in Hunt’s direct appeal, the district court also found that although the State committed a Doyle violation in questioning Hunt about the second day of his interview with Papish, Hunt failed to establish prejudice based on his counsel’s failure to object. The district court further found that Hunt’s counsel was not ineffective for failing to request a cautionary instruction as to the Doyle violation because the decision was based on trial strategy. Finally, the district court concluded that counsel was not ineffective in asking Hunt’s brothers whether they thought Hunt murdered their mother because the questions were a matter of trial strategy, and even if counsel were ineffective, Hunt failed to establish prejudice.
Analysis
On appeal, Hunt asserts the district court erred (1) in finding that Hunt’s trial counsel was not ineffective and (2) in finding that Hunt could not establish prejudice from the Doyle violation that arose during his cross-examination. Hunt further asserts that even if the individual instances of error are insufficient to grant him relief, the cumulative errors establish that he was deprived of a fair trial.
1. Ineffective Assistance of Counsel
A claim alleging ineffective assistance of counsel presents mixed questions of fact and law requiring de novo review. Thompson v. State, 293 Kan. 704, 715, 270 P.3d 1089 (2011). After a full evi-dentiaiy hearing, an appellate court reviews the district court’s findings of fact to determine whether they are supported by substantial competent evidence and, if so, whether those factual findings are sufficient to support the court’s conclusions of law. An appellate court must give deference to the district court’s findings of fact, accepting as true the evidence and any inferences that support or tend to support the district court’s findings. Bellamy v. State, 285 Kan. 346, 354-55, 172 P.3d 10 (2007). In addition, we give particular deference to the trial judge who observed counsel’s performance firsthand. Chamberlain v. State, 236 Kan. 650, 659-60, 694 P.2d 468 (1985). Appellate review of the district court’s ultimate conclusions of law is de novo. Bellamy, 285 Kan. at 354-55.
To establish ineffective assistance of counsel, it is not enough to merely surmise, with the benefit of hindsight, that another attorney may have tried the case differently. Rather, before counsel’s assistance can be found to be so defective as to require reversal of a conviction, the defendant must establish two things. First, the defendant must establish that counsel’s performance was constitutionally deficient. Judicial scrutiny of counsel’s performance in a claim of ineffective assistance of counsel is highly deferential and requires consideration of the totality of the evidence before the judge or jury. Second, the defendant must establish that counsel’s deficient performance prejudiced the defense. To establish prejudice, the defendant must demonstrate a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S. 1267 (1984); Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009).
a. Ineffective Assistance of Counsel Related to the Testimony of Hunt’s Brothers
In his first claim of ineffective assistance, Hunt asserts his trial counsel was ineffective for asking Hunt’s brothers, Patrick and Chris, for their respective opinions on whether Hunt was guilty of murdering their mother. Notably, testimony in tire form of an opinion otherwise admissible is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of fact. K.S.A. 60-456(d). Byway of example, Kansas courts have found that no-nexpert witnesses who have been shown to have had special opportunities to observe may give opinion evidence as to sanity and intoxication. City of Dodge City v. Hadley, 262 Kan. 234, 240-41, 936 P.2d 1347 (1997) (citing State v. Shultz, 225 Kan. 135, 587 P.2d 901 [1978], and State v. Townsend, 146 Kan. 982, 986, 73 P.2d 1124 [1937]). But witness testimony expressing an opinion on a defendant’s overall guilt or innocence necessarily falls outside the scope of K.S.A. 60-456(d) because it “is inadmissible as a matter of law.” State v. Drayton, 285 Kan. 689, 701, 175 P.3d 861 (2008). This is because “[i]n a criminal trial, the defendant has the right to have the juiy determine from the evidence whether the defend ant is guilty or not.” State v. Steadman, 253 Kan. 297, 304, 855 P.2d 919 (1993).
With these legal principles in mind, we turn to the testimony provided by Hunt’s brothers. Patrick testified that he was living in South Dakota when he learned about his mother’s disappearance sometime in June 2002. After Chris called Patrick on July 2, 2002, to report that an unidentified body had been found that could be their mother, Patrick drove 12 hours from South Dakota to the Fort Scott area. During cross-examination, Patrick acknowledged that he went to the Fort Scott Police Department on July 7, 2002, to tell Sergeant Curtis Bowman that he believed Hunt murdered their mother and to request that a warrant be issued to arrest Hunt for the crime. Patrick also acknowledged that he met with KBI Agent Bruce Adams the following day, July 8, 2002:
“Q. And that’s—did you tell Officer Adams that you suspected Paul Hunt was the person involved in the disappearance and murder of your mother?
“A. I believe my comment was he could be involved, yes.
“Q. And what was the basis for that?
“A. My personal opinion was based on behavior that I had witnessed.
“Q. What behavior had you witnessed that caused you to come to that conclusion?
“A. Several forms of behavior. One of them being leaving, the train incident, you know, running away and that type of behavior, sir, and also comments drat he had made to me directly.
“Q. What comments had he made?
“A. One I referred to earlier was one of them. That stands out in my mind. There was—seemed to have been overall disgust drat he was showing.”
Counsel further cross-examined Patrick:
“Q. Would it be a fair statement that you came to the conclusion very quickly that Paul was guilty?
“A. No sir.
“Q. You don’t consider a few days after the body was found that you had already made that decision to be quick?
“A. I had not made that decision at drat time, sir, a few days after, no.
“Q. Well, I mean, you requested—
“A. Was drere suspicion, suspected, yes. Definite, no.
“Q. Now, are you definitely sure today that he killed her?
“MR. BAUCH: Your Honor, I’m going to object. This is a question for the jury to decide.
“THE COURT: Probably it is irrelevant in any event. I will sustain the objection.”
Chris’ opinion testimony consisted of the following:
“Q. After your mother was found, did you and Pat[rick] have any discussions about what might have happened to her?
“A. Yes, we did.
“Q. And did any of those involve [Hunt] being responsible?
“A. Yes, it did.
“Q. By the time of the funeral, several of you believed drat [Hunt] was die responsible person; is diat correct?
“A. Yes.”
Based on testimony from Hunt’s counsel at the K.S.A. 60-1507 evidentiary hearing that the questions set forth above were asked as a matter of trial strategy, tire district court ultimately concluded that counsel was not ineffective for asking Patrick and Chris for their respective opinions on whether Hunt was guilty of murdering their mother. Specifically, the district court concluded that Hunt’s counsel had to combat the evidence of Hunt’s “exceedingly incriminating and bizarre” actions following his mother’s disappearance, like jumping on trains’ hiding in the park, not attending his mother’s funeral, and making unusual comments. The theory of defense to explain this behavior was that Hunt had discovered his family members believed he killed Mary Sue and that he was experiencing a great deal of stress as a result of those unjust accusations. The judge noted that Hunt’s counsel was
“given a certain set of facts and they have to deal with diose facts and attempt to mitigate those facts the best they could, and this is die only real way they could play these cards to mitigate the evidence against you, to explain that your actions were premised upon your family’s belief that you were guilty, and to explain diat tiiis belief came about arbitrarily and very early on in the process before any evidence was even developed to tie you to your mother’s murder.”
The judge repeatedly suggested that Hunt’s counsel did not have much choice and that it would have been a more serious error to have left Hunt’s bizarre actions unexplained from which the jury could draw inferences.
In discussing trial strategy, our Supreme Court has explained that strategic decisions made by trial counsel based on a thorough investigation are virtually unchallengeable:
“Trial counsel has the responsibility for making tactical and strategic decisions including the determination of which witnesses will testify. Even though experienced attorneys might disagree on the best tactics or strategy, deliberate decisions based on strategy may not establish ineffective assistance of counsel. Strategic choices based on a thorough investigation of the law and facts are virtually unchallengeable.” Flynn v. State, 281 Kan. 1154, Syl. ¶ 5, 136 P.3d 909 (2006).
Nevertlieless, defense counsel may not “disregard pursuing a line of investigation and call it ‘trial strategy.’” State v. James, 31 Kan. App. 2d 548, 554, 67 P.3d 857, rev. denied 276 Kan. 972 (2003). “[Wjhen counsel lacks the information to make an informed decision due to inadequacies of his or her investigation, any argument of ‘trial strategy’ is inappropriate.” Mullins v. State, 30 Kan. App. 2d 711, 716-17, 46 P.3d 1222, rev. denied 274 Kan. 1113 (2002). Upon review, “[strategic choices based on less than a complete investigation are reasonable to the extent that reasonable professional judgment supports the limitation on the investigation.” Flynn, 281 Kan. at 1157.
The district court’s finding that trial counsel asked the questions at issue based on trial strategy is supported by sufficient evidence in the record of the evidentiary hearing. Both of Hunt’s trial attorneys testified that the questions were based on the trial strategy of explaining Hunt’s bizarre behavior. Attorney Philip Bemhart testified that he asked Hunt’s brothers about their opinions on whether Hunt was guilty of murdering their mother because he was trying to do two things: (1) to show that Chris’ opinion had come about very early on and was not based on rationality, just wild speculation and (2) to explain Hunt’s bizarre behavior, “which was a major problem,” by showing that it was a response to his family accusing him of being the killer. Bernhart also said that he was trying to show die brothers’ bias on the day of the trial. Bem-hart explained that the brothers’ testimony confirmed Hunt’s own testimony that he believed they were accusing him of murder.
Hunt’s other attorney, David Clark, also testified tíiat the defense’s trial strategy was to explain Hunt’s bizarre behavior. Clark said he thought asking the brothers questions about their opinions on whether they had believed Hunt was guilty of murdering their mother was important because it “confirmed that Mr. Hunt’s be liefs were accurate in terms of his brothers’ feelings.” Clark also testified that Hunt’s anticipated testimony on that issue subsequently would have opened the door for the brothers’ testimony to come in anyway; therefore, it was better for the defense to introduce it before the State did in order to characterize it in the best way possible.
Although there is sufficient evidence in tire record to support the district court’s finding that trial counsel asked these questions based on trial strategy, Hunt argues counsel’s actions in effecting that strategy permitted the jury to consider inadmissible opinion evidence regarding his guilt, which necessarily establishes deficient performance as a matter of law. Taken in context, however, we are not persuaded that Patrick’s and Chris’ testimony amounts to inadmissible opinion evidence.
As set forth above, a witness cannot testify that in his or her opinion the defendant is guilty. See Steadman, 253 Kan. at 304. Allowing such testimony invades the jury’s role to determine guilt or innocence based on the totality of the evidence presented at trial. Considering the context within which it was offered, however, we find the testimony provided by Patrick and Chris was limited in both scope and time to the perceptions and beliefs they held while the police were investigating the murder in the few days after their mother’s body had been discovered. As a result, this testimony did not invade the jury’s role to determine guilt or innocence based on the totality of the evidence presented at trial. In so finding, we acknowledge that defense counsel did ask Patrick on tire day of trial whether he still believed Hunt killed their mother, but the trial court sustained the State’s objection to the question and Patrick was not permitted to respond. Given the narrow context in which Patrick and Chris actually testified regarding their opinions, we are not persuaded that the opinion testimony at issue here invaded the jury’s role to determine guilt or innocence based on the evidence presented at trial. Because the testimony was otherwise admissible, defense counsel’s strategic decision to elicit such testimony cannot be considered deficient performance.
Even if we had found trial counsel’s performance deficient in asking Hunt’s brothers for their respective opinions on whether they believed in the few days after their mother’s body was found that Hunt was guilty of murdering their mother, Hunt has faded to establish the second prong of an ineffective assistance of counsel claim: that this testimony prejudiced his defense. Establishing prejudice requires a showing that counsel’s errors were so severe as to deprive the defendant of a fair trial. Strickland, 466 U.S. at 687; Harris, 288 Kan. at 416. Specifically, the defendant must demonstrate a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Harris, 288 Kan. at 416.
Hunt argues the opinion testimony at issue significantly prejudiced his defense because there was no direct evidence of his guilt presented at trial and the circumstantial evidence presented was not overwhelming. Hunt is correct that the evidence in this case was circumstantial and not overwhelming. The Kansas Supreme Court itself said so in Hunt’s direct appeal, noting that “by any measure, the State’s evidence in this case was not of a direct and overwhelming nature.” Hunt, 285 Kan. at 874. But a finding that evidence is circumstantial and less than overwhelming falls far short of the standard necessary to establish prejudice here: a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different. Based on the following evidence, we do not believe such a reasonable probability exists.
As a preliminaiy matter, there was evidence presented at the trial that Hunt’s odd behavior began before his brothers accused him of the murder. Specifically, Hunt’s girlfriend, Tammy Rees, testified that Hunt gave her his mother’s clothes the weekend that she went missing, claiming that his mother had grown out of them and wanted Tammy to have them—even though Maiy Sue had never given Tammy any clothes before and the two women were not that close. Tammy also testified that Hunt brought a large quantity of camping equipment to her house before Maiy Sue went missing, which later turned out to include a rope that was consistent with the rope found on Mary Sue’s body.
Moreover, Chris testified that right after Hunt learned that his mother went missing, Hunt told Chris, “[I]t will not go to Court.” Chris further stated Hunt told him that “if you really wanted to get away with it, you could, if you really wanted to.” Finally, Chris testified that while he and Hunt were putting up missing person posters before the police discovered Maiy Sue’s body had been dumped in a strip pit, Hunt commented that “Teriy Taylor [Mary Sue’s ex-husband] knows every strip pit from here to West Mineral” just as they were nearing the strip pit where Mary Sue’s body was later found. The State also presented a witness who stated that, 3 days before Hunt’s mother was reported missing, he saw a man near the strip pits in a dark-colored truck, consistent with the color of Hunt’s truck, and that the man claimed a motionless person in the passenger seat covered with a blanket was his sleeping fiance.
Although we find the facts set forth above effectively eliminate any reasonable probability that the verdict would have been different if counsel had not asked Patrick and Chris to provide their opinions, there is also additional support for such a finding. Specifically, the particular opinion evidence about which Hunt complains was presented to the jury through two other sources besides his brothers: his own testimony and the testimony of Officer Adams, who testified that Patrick told him he believed Hunt was involved in the disappearance and murder of his mother. In fact, the district court commented at the evidentiary hearing that tire brothers’ testimony was essentially the “same tiring” as Hunt’s testimony in that it conveyed to the jury that his brothers thought he was guilty.
Based on the discussion above, Hunt has failed to establish that the opinion testimony provided by his brothers was inadmissible in the first instance; thus, counsel was not deficient for eliciting that testimony as part of the defense trial strategy. And, even if Hunt had established the opinion testimony was inadmissible, Hunt has failed to demonstrate how the outcome of the trial would have been different had the testimony in dispute been presented to the jury only through Officer Adams and Hunt.
b. Ineffective Assistance of Counsel Related to the Testimony of Agent Papish
Next, Hunt claims his trial counsel was ineffective for failing to file a motion in limine or to object to the testimony of Agent Papish on grounds that the testimony was not relevant. Again, to support a claim of ineffective assistance of counsel, the defendant must prove that (1) counsel’s performance was deficient and (2) counsel’s deficient performance was sufficiently serious to prejudice the defense and deprive the defendant of a fair trial. Thompson, 293 Kan. at 715.
Generally, all relevant evidence is admissible. State v. Patton, 280 Kan. 146, 156, 120 P.3d 760 (2005), disapproved on other grounds by State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006). Relevant evidence is defined as “evidence having any tendency in reason to prove any material fact.” K.S.A. 60-401(b). There are two elements of relevant evidence: a materiality element and a probative element. State v. Houston, 289 Kan. 252, 261-62, 213 P.3d 728 (2009). Evidence is material if the fact is “ ‘ “significant under the substantive law of the case and properly at issue.” ’ ” State v. Reid, 286 Kan. 494, 505, 186 P.3d 713 (2008). Evidence is probative if it has “ ‘any tendency in reason to prove’ ” a fact. 286 Kan. at 505. The issue of whether evidence is probative is reviewed under an abuse of discretion standard whereas the materiality of evidence is reviewed de novo. State v. Berriozabal, 291 Kan. 568, 586, 243 P.3d 352 (2010).
As a rule of necessity, however, even relevant evidence may be excluded if the court determines that the probative value of that evidence is substantially outweighed by the risk of unfair prejudice. Patton, 280 Kan. at 156 (quoting State v. Meeks, 277 Kan. 609, 618, 88 P.3d 789 [2004]). Appellate courts review this determination for abuse of discretion. State v. Wells, 289 Kan. 1219, 1227, 221 P.3d 561 (2009).
At the K.S.A. 60-1507 evidentiary hearing on this issue, the district court found that Hunt was Mirandized, waived his Miranda rights, agreed to talk with Papish, and did not invoke his Miranda rights on the first day of his interview with Agent Papish. See Mir anda v. Arizona, 384 U.S. 436, 460, 86 S. Ct. 1602, 16 L. Ed. 2d 694, reh. denied 385 U.S. 890 (1966). The court also found that Hunt’s invitation to talk the following day intimated that he knew what happened to his mother, which was relevant and admissible evidence. The court specifically found that Papish’s testimony regarding Hunt’s intention to talk the following day did not constitute a Doyle violation because Hunt had not invoked his Miranda rights that first day, had not agreed to talk, and had, in fact, remained silent. The court ultimately concluded that “the first interview conducted between Agent Papish and [Hunt] was admissible, relevant, and did not violate Doyle because [Hunt] freely and voluntarily waived his rights.”
On appeal, Hunt argues that Papish’s testimony about Hunt’s intention to talk the following day was irrelevant because Hunt ultimately did not make any statements that could be connected with other evidence to bolster the State’s case. As Hunt’s own counsel stated at the K.S.A. 60-1507 evidentiary hearing, however, Hunt’s statements to Papish were relevant in their own right because they implied “ ‘if you will come back, I will have something to tell you.’ ” Even the Kansas Supreme Court noted in Hunt’s direct appeal that “[t]he inference to be drawn from that testimony was that Hunt possessed personal information about the murder.” Hunt, 285 Kan. at 872. This evidence was probative because it had a tendency to prove that Hunt knew something about his mother’s death. And Hunt’s knowledge about his mother’s death was a material fact because Hunt’s involvement in the murder was significant under the substantive law of the case and properly at issue.
To that end, both of Hunt’s attorneys testified at the K.S.A. 60-1507 evidentiary hearing that they thought there was no legal basis to suppress Papish’s testimony. In fact, die district court stated at the evidentiary hearing that “had a motion to suppress of that particular interview been filed by your counsel... it would have been denied by the Court because there is simply no basis.” Hunt’s counsel was certainly not ineffective for failing to bring a motion with no legal basis that would have been denied by die district court. See State v. Gleason, 277 Kan. 624, 648, 88 P.3d 218 (2004) (finding that counsel was not ineffective for failing to object to admissible, relevant evidence that the court would have admitted even if counsel had objected).
For the reasons stated above, the district court did not err in finding no merit to Hunt’s claim that trial counsel was ineffective for failing to file a motion in limine or to object to the testimony of Agent Papish on grounds that the testimony was not relevant. Because Hunt failed to establish his counsel’s performance was deficient, we do not need to address the prejudice prong of the Strickland ineffective counsel test.
2. The Doyle Violation—Hunt’s Testimony
Although he did so in his first K.S.A. 60-1507 appeal, Hunt does not frame the Doyle violation as an ineffective assistance of counsel claim but instead as a deprivation of due process. Specifically, Hunt claims the admission of evidence at trial indicating that he invoked his constitutional right to remain silent deprived him of a fair trial; thus he is entitled to a new trial under Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976).
The Fifth Amendment to the United States Constitution guarantees the right against self-incrimination, including the right to have a lawyer present during a custodial interrogation and the right to remain silent. U.S. Const. amend V; Miranda, 384 U.S. at 479. Consequently, Miranda requires law enforcement officers to inform suspects of these rights before statements—whether exculpatory or inculpatory—made in a custodial interrogation may be admitted against them. 384 U.S. at 444; State v. Cosby, 285 Kan. 230, 241, 169 P.3d 1128 (2007). Once a defendant states that he or she wants an attorney, the interrogation must cease until an attorney is present. Miranda, 384 U.S. at 473-74. “It is constitutionally impermissible for the State to elicit evidence at trial of an accused’s post-Miranda silence.” State v. Edwards, 264 Kan. 177, 195, 955 P.2d 1276 (1998) (citing Doyle, 426 U.S. at 618). This violation is called a Doyle violation, which occurs when the State attempts to argue or introduce evidence that the defendant did not avail himself or herself of the first opportunity to clear his or her name when confronted by police officers, but instead invoked the constitutional right to remain silent. Edwards, 264 Kan. at 195; State v. Pruitt, 42 Kan. App. 2d 166, 172, 211 P.3d 166 (2009).
Agent Papish interviewed Hunt after his arrest over the course of 2 days. On the first day, Papish asked Hunt to “tell me about your mother and what happened,” but Hunt said several times that he would talk about it the next morning and tell Papish what he needed to know. When Papish returned the next morning, Hunt invoked his Miranda right to an attorney, and Papish left.
During Hunt’s trial, tire district court suppressed the videotape from the first day of the interview, finding the tape inadmissible because it had no probative value since Hunt did not make any incriminatory statement and Hunt’s long periods of silence were unduly prejudicial because they implied that he refused to defend himself when given the opportunity to do so. Nevertheless, the district court ruled that the State would be permitted to “fully explore the conversation [from the first interview day].” With that said, the district court also ruled that Papish would not be allowed to testily that Hunt had invoked his right to an attorney on that second day.
Once on the stand, Papish testified about the first day’s interview and Hunt’s statements indicating that Hunt would talk with Papish the following day. When asked by the State if Hunt told him what happened to his mother on that second day, Papish responded, “No, he did not.”
When Hunt later took the stand, the State cross-examined him as follows:
“Q. Do you recall speaking to Agent Papish out in Pennsylvania after you had been arrested?
“A. I remember some of it, yes.
“Q. And you told him—he asked you I want to talk about your mom’s murder and you told him not once, not twice, but three to four times I will tell you everything you want to know about the murder of her in tire morning. You told him that, didn’t you?
“A. Meaning I would tell him everything I know in the morning, yes.
“Q. Did you tell Agent Papish everything you knew?
“A. After I asked for an attorney, he left me.
“THE COURT: Hold on just a second. Come forward, please.”
The district court then called a bench conference, during which Hunt’s counsel declined the court’s offer for an instruction to the jury to disregard Hunt’s response. The court then allowed the State to ask the following:
“Q. Did you tell him everything you knew about the murder of your mother Mary Sue Taylor, yes or no?
“A. There was nothing to tell.”
In the context of Hunt’s claim of prosecutorial misconduct on direct appeal, the Kansas Supreme Court found that both the State’s question to Hunt and his first response constituted a Doyle violation, because the question “on its face ‘attempts to impeach [Hunt’s] credibility at trial by arguing or by introducing evidence that [Hunt] did not avail himself ... of the first opportunity to clear his or her name when confronted by police officers.’ ” Hunt, 285 Kan. at 872. It explained that “[e]ven in context, the question suggested that Hunt knew something about the murder that he failed to share with Agent Papish and that the jury should discount Hunt’s trial testimony because of the unfavorable inference to be drawn from that silence.” 285 Kan. at 872. Thus, the court found the question impermissible under the first step of die prosecutorial misconduct analysis.
Nevertheless, the Kansas Supreme Court went on to find that the Doyle violation did not constitute plain error requiring reversal under the second step of the prosecutorial misconduct analysis, which requires the court to consider “ ‘(1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor’s part; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors.’ ” Hunt, 285 Kan. at 872. In so finding, the court stated:
“We perceive the most harmful evidence was Agent Papish’s description of the initial interview with Hunt, in which Hunt said several times that he would talk with the agent the next morning about what happened to his mother. The inference to be drawn from that testimony was that Hunt possessed personal information about the murder. In comparison, the fact that Hunt did not cany through with his promise to talk about the murder is rather harmless. Especially, in light of Hunt’s ultimate answer, ‘There was nothing to tell.’ ” Hunt, 285 Kan. at 872-73.
Although in the context of prosecutorial misconduct as opposed to the due process claim asserted in Hunt’s K.S.A. 60-1507 motion, the district court here relied on the Supreme Court’s finding to similarly hold that Hunt’s testimony about his second day of interviews with Papish was a Doyle violation but that “this limited error was not so serious as to deprive [Hunt] of a fair trial or to undermine the Court’s confidence in the outcome of the case.” In support of this holding, the district court found that the State had a strong case against Hunt and that the violation was rather harmless, especially in light of Hunt’s ultimate answer that “[t]here was nothing to tell.” The district court concluded:
“[I]n light of the evidence, the weight of the evidence against you, in light of the fact that the Supreme Court has indicated that it was relatively harmless, and even without that finding by the Supreme Court, in a week-long juiy trial, a lot of witnesses testifying, a lot of pieces of the puzzle, so to speak, to piece together, I don’t see that this one comment, that was a Doyle violation, undermines my confidence in the jury’s verdict. I think, certainly, the jury’s verdict should survive this Doyle violation.”
Hunt claims die district court erred in concluding diat the Doyle violation was harmless. We disagree.
In State v. Ward, 292 Kan. 541, 556-65, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012), our Supreme Court clarified the harmless error standard applied to claims of constitutional error. The degree of certainty by which the court must find a constitutional error is harmless beyond a reasonable doubt that there was no impact on the trial’s outcome. That means that the error will be declared harmless if this court concludes beyond a reasonable doubt that the error, in light of the whole record, had no reasonable possibility of changing the result of the trial. Ward, 292 Kan. 541, Syl. ¶ 6.
Applying this legal standard, the narrow question presented here is whether this court—in light of the record as a whole—can conclude beyond a reasonable doubt that the following question posed by the State and the following response provided by Hunt had no impact on the trial’s outcome:
“Q. Did you tell Agent Papish everything you knew?
“A. After I asked for an attorney, he left me.
“Q. Did you tell him everything you knew about the murder of your mother Mary Sue Taylor, yes or no?
“A. There was nothing to tell.”
Hunt contends that in the absence of the first question and answer, there is at least a reasonable possibility that the outcome of the trial would have been different. In support of this contention, Hunt argues the case against him was circumstantial at best and weighed heavily on the question of whether his strange behavior was due to his guilt or the pressure he felt from his family’s accusations. Hunt claims that the case essentially was a credibility contest between himself and his brothers and that the statement he made about requesting an attorney critically damaged his credibility in the eyes of the jury because, to the common juror, an innocent man would not invoke his right to an attorney.
First of all, the fact that the evidence of Hunt’s guilt was circumstantial and not overwhelming does not mean the statement he made about requesting an attorney impacted the trial’s outcome. Instead, we are required to review the Doyle violation in light of the whole record in order to determine whether we can conclude beyond a reasonable doubt that the violation had no impact on the trial’s outcome.
The evidence presented in this case established that prior to her death, Mary Sue, Hunt, and Hunt’s son lived together in a rental home located in Fort Scott. Maiy Sue and Hunt shared the bills and often fought over them. Mary Sue reported to Hunt’s brothers and her own brother that Hunt had opened up credit card accounts in her name and made purchases on those cards without her authorization. Although Hunt testified at trial that he did not do so, he thereafter admitted that he fraudulently filled out the credit card applications.
At approximately 7 a.m. on June 20, 2002, Hunt arrived home after working the graveyard shift at his job. That same day, Maiy Sue arrived home around 5:30 p.m. Both were alone in the house from that time to approximately 10:45 -p.m. During the course of the day and evening, Hunt called his girlfriend many times, although there were no calls between 2:36 p.m. and 8 p.m.
Near evening on that same day, a witness observed a pickup truck parked in a low-lying area, adjacent to a strip pit situated on the Missouri side of the Missouri-Kansas border. As the witness approached the pickup, he observed a person initially standing next to the passenger door who then entered the pickup on tire driver s side. Upon making contact with the pickup driver, the witness observed a motionless person in the passenger seat covered with a blanket or sleeping bag. In answer to the witness’ inquiry, the pickup driver said the passenger was his sleeping fiance. Being suspicious about a person covered up with a blanket in hot weather, the witness went to the local sheriff s office to report his concerns.
Hunt ended his work shift around 7 a.m. on Friday, June 21. He cashed his paycheck and drove to Tammy’s house in Carterville, Missouri. Hunt arrived at her house that morning with a parcel of his mother’s clothes. Tammy thought the gift of clothing was unusual because she and Hunt recently had begun dating, and she barely knew Maiy Sue. Hunt also brought a truckload of plastic totes filled with camping equipment and stored the totes in her shed.
Hunt arrived home late in the evening on June 23 to find several members of his family investigating the whereabouts of Mary Sue. No one had seen or heard from Maiy Sue after June 20, and she did not report to her scheduled work at the hospital. Right after Hunt learned that his mother was missing, he told Chris, “[I]t will not go to Court.” Hunt then told Chris that “if you really wanted to get away with it, you could, if you really wanted to.”
Between June 23 when Hunt returned home to find his family searching for his mother and June 29 when the police discovered his mother’s body, the family searched for Mary Sue. During this period of searching, Hunt was driving with his brother and sister-in-law near Arcadia where authorities eventually found Mary Sue’s body, when Hunt declared that “Terry Taylor [Maiy Sue’s ex-husband] knows eveiy strip pit from here to West Mineral.” Hunt made this remark days before the police found the victim in a nearby strip pit.
On June 28, Hunt visited his friend Frank Ames in Carterville. They purchased some beer at a convenience store. As they were leaving in Hunt’s truck, tire police initiated a traffic stop, at which time Hunt told Frank, “[M]an, I’m in trouble.” Hunt instructed Frank not to tell them who was driving and then jumped out of tire truck and ran from the police.
On June 29, the police discovered a body thought to be Mary Sue’s wrapped in a blanket and a tarp and floating in a Crawford County strip pit. A few hours after receiving notice that the police found a body in a nearby strip pit, Hunt called Tammy and said, “I love you, I’m leaving.” Without telling anyone, Hunt' then left Iris son and family behind and hitched a freight train to Joplin, Missouri. Once in Joplin, Hunt hid in the park and called Tammy to ask her if she could bring him cigarettes and a Dr. Pepper. She did. Hunt tiren hopped a freight train to Kansas City after which he hopped another freight train heading in the opposite direction, ending up in Emporia.
After authorities confirmed the body was Mary Sue, the police went to Tammy’s house and confiscated Hunt’s totes. The totes contained an assortment of camping equipment including tarps, tents, lantern mantles, plates, foil, and utensils. The police found rope in one of the totes with a pink and white braided pattern. Testing later revealed that the rope found in Hunt’s tote had the same pattern, size, and chemical composition as the rope binding the victim’s corpse. The State emphasized the significance of the chemical composition match by showing a different sample that was similar to dre rope found in Hunt’s tote in terms of look, manufacturer, and lot number, but actually different at the composition level.
In addition to the rope, the police also found masking tape at the home Hunt shared with Mary Sue that had the same chemical composition to the tape binding tire victim’s body. The tape on her body and the tape from the house had the same width, thickness, chemical composition of the tape backing, and chemical composition of the tape adhesive.
Based on the evidence presented to the jury as set forth above, as well as the fact that the Doyle violation was fleeting and confined to one question and one answer, we conclude beyond a reasonable doubt that the Doyle violation had no impact on the trial’s outcome.
3. Cumulative Error
Hunt’s final claim on appeal is that even if each of the individual errors committed by his counsel were not ineffective assistance of counsel, the cumulative effect of those errors are sufficient to constitute ineffective assistance. In support of this claim, Hunt points to the State’s underwhelming evidence and the Kansas Supreme Court’s opinion in Hunt’s direct appeal, which noted that “by any measure, the State’s evidence in this case was not of a direct and overwhelming nature.” Hunt, 285 Kan. at 874.
Cumulative trial errors, when considered collectively, may require reversal of the defendant’s conviction when the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. If tire evidence is overwhelming against the defendant, however, no prejudicial error may be found based upon this cumulative error rule. Thompson v. State, 293 Kan. 704, 721, 270 P.3d 1089 (2011). However, “[cjumulative error will not be found when the record fails to support the errors raised on appeal by the defendant. [Citations omitted.]” State v. Cofield, 288 Kan. 367, 378, 203 P.3d 1261 (2009). The Kansas Supreme Court has considered cumulative error in an ineffective assistance of counsel claim before. See Thompson, 293 Kan. at 721. Thus, it is possible for individual errors of counsel to cumulatively constitute ineffective assistance of counsel.
After the evidentiary hearing, the district court judge addressed Hunt:
“I am the one that heard the trial. I think your attorneys did a fine job in representing you. They left no stone unturned. They presented the best case they could with the facts that tiren existed.
“. . . This was a strong circumstantial case against you that the State was able to put together, and I am confident that dre outcome of your case is a fair outcome, is a valid outcome, and my confidence, again, in the outcome is not undermined through the actions of your attorney.”
We agree that the State had a strong circumstantial case against Hunt. Although the evidence supporting the verdict may not have been direct or overwhelming, we have considered the totality of circumstances and conclude that Hunt was not substantially prejudiced or denied a fair trial.
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|
McAnany, J.:
On May 20, 2009, Cyndi Carr was injured when she was bitten on the ankle by a pit bull owned by Rodney Van-noster while she was on the premises occupied by Rodney. She sued Rodney and Rodney s wife, Mary Vannoster.
In her amended petition Carr also asserted negligence claims against Rodney’s father, Jim Vannoster, claiming that Jim, who owned the properly where Rodney and Mary lived and kept the dog, was negligent in: (1) failing to act on his knowledge that Rodney’s dog was dangerous; (2) failing to direct Rodney to properly restrain the dog; (3) failing to direct Rodney to properly pen the dog; (4) failing to direct Rodney to post a warning sign announcing the presence of the dog; and (5) failing to exercise his rights as owner of the premises to expel Rodney or the dog or both of them from the property. Carr did not make a specific claim against Jim for strict liability as the possessor or harborer of a dangerous animal, though she later asserted that as a basis for denying the summary judgment Jim later requested.
Carr moved for summary judgment against Rodney and Mary and was awarded a judgment against them in the amount of $325,000.
The issues now before us came to a head when Jim moved for summary judgment on Carr’s claims against him. While Jim asked that the case be dismissed for failure to state an actionable claim, he couched his request in the form of a summary judgment motion because he asked tire court to consider facts beyond the face of Carr’s pleading. The court granted Jim summary judgment on Carr’s claim against him, finding that Carr failed to state an actionable claim against Jim. It is the propriety of this ruling that Carr asks us to review.
Review Standards
The district court based its summary judgment ruling upon Carr’s failure to state an actionable claim as it would in the case of a motion to, dismiss. But this does not affect our review. The motion was one for summary judgment. Jim relied on facts beyond the face of Carr’s pleading and enumerated them in his statement of claimed uncontroverted facts. Accordingly, we review Jim’s motion for what it was: a motion for summary judgment.
The standards courts apply in summary judgment proceedings are well established. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with any supporting affidavits, show that there is no genuine issue of material fact and that the moving party is en-tided to judgment as a matter of law. K.S.A. 2011 Supp. 60-256(c)(2). In opposing a defendant’s summary judgment motion, the plaintiff may not rely merely on allegations in the petition. To the contrary, the plaintiff must establish by affidavits or facts in the record that there exists a genuine issue of material fact for trial. See K.S.A. 2011 Supp. 60-256(e)(2).
The court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom summary judgment is sought. In order to preclude summary judgment, the facts subject to the dispute must be material.
“ 'An issue of fact is not genuine unless it has legal controlling force as to the controlling issue. The disputed question of fact which is immaterial to the issue does not preclude summary judgment. If the disputed fact, however resolved, could not affect the judgment, it does not present a genuine issue of material fact. [Citation omitted.]’ ” Mitchell v. City of Wichita, 270 Kan. 56, 59, 12 P.3d 402 (2000).
Summary judgment is not appropriate if reasonable minds can differ as to the conclusions drawn from the evidence. Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011); see Supreme Court Rule 141 (2011 Kan. Ct. R. Annot. 232). On appeal, we apply these same rules de novo. Kuxhausen v. Tillman Partners, 291 Kan. 314, 318, 241 P.3d 75 (2010).
The central issue in this case is whether Jim owed a duty of due care to Carr. Carr had the burden of proving that Jim owed her this duty. While the breach of a duty is an issue of fact, whether a duty exists is an issue of law for the court. See Schmidt v. HTG, Inc., 265 Kan. 372, 396-97, 961 P.2d 677, cert. denied 525 U.S. 964 (1998). Carr also raises the issue of strict liability for Jim possessing or harboring a dangerous animal.
Uncontroverted Facts
The following facts set forth in the memorandum supporting Jim’s motion are uncontroverted. In her response to Jim’s motion, Carr set forth additional claimed uncontroverted facts. Because we have in the record no response from Jim regarding these additional facts, we accept them as also being uncontroverted. They are as follows:
Jim lived in a house located on 80 acres he acquired over 20 years before this May 20, 2009, incident. Jim was retired. His address was 2612 County Road 3500, Independence, Kansas.
Jim’s son, Rodney, suffered a spinal cord injury in a stock car race in approximately 2000. As a result, Rodney was disabled and confined to a wheelchair.
For about 5 years before this incident, Rodney lived in a home with 4 acres owned by Jim. Jim purchased the property in about 2000 as a home for Rodney. The address of the property was 3337 County Road 2800, Independence, Kansas. This is approximately 1 mile from Jim’s residence. Jim built a wheelchair ramp for Rodney and paid the liability insurance premium on this property as well as the property taxes. Jim described the arrangement as “more or less land of a rental.” There was no written lease agreement between Jim and Rodney. Rodney said in his deposition the rent was $350 per month. Jim said in his deposition the rent was $300 per month. Rodney had not paid Jim any rent for over 1 year before the May 20, 2009, incident.
Rodney repaired lawnmowers as a hobby in the garage located at his residence. However, some people paid Rodney for his repair work. Rodney had people stopping by his shop from time to time. Jim visited Rodney once or twice a week and sometimes helped Rodney with his lawnmower activities.
Rodney acquired the pit bull 3 years before this incident. The dog was never at Jim’s residence during the time Rodney owned her. Jim never owned, possessed, kept, or cared for the dog. (He claimed that he never “harbored” the dog, but Carr disputed this.) Jim never transported the dog in one of his vehicles and never took tire dog away from tire house and 4 acres that Rodney occupied. Whenever Jim visited Rodney, the dog was running loose without any enclosure.
Rodney s pit bull was approximately 3 years old at the time of this incident and had recently had a litter of pups. Sometime before the current incident the dog had nipped a neighbor on the back of his pant leg. Jim knew that the dog had “extremely dangerous propensities” because pit bulls were banned in the City of Independence. (The properties in question were located outside the city.)
On May 20, 2009, Rodneys dog attacked and injured Carr in Rodney’s driveway approximately 50 feet from the garage where Rodney was working on lawnmowers.
Analysis
Liability for Negligence as a Landlord
Whether Jim was a Landlord
Jim relied on Colombel v. Milan, 24 Kan. App. 2d 728, 952 P.2d 941 (1998), as support for his summary judgment motion. In Colombel, this court was called upon to decide whether “a landlord may be held liable under Kansas law for the injuries a third party suffers due to the actions of his or her tenants’ vicious dog on the leased property.” 24 Kan. App. 2d at 729-30. The court in Colombel dealt with the issue at the pleading stage (the defendant had moved to dismiss for failure to state a claim), rather than in a summary judgment motion following discovery.
The Colombel court discussed Borders v. Roseberry, 216 Kan. 486, 532 P.2d 1366 (1975), in which our Supreme Court considered a landlord’s liability to a tenant’s guest who fell on ice that had accumulated on the leased property. The Borders court held that a landlord not in possession of the premises owed no duty of due care to third parties, subject to certain exceptions which we will discuss later. The Colombel court determined that the Borders exception relied upon by the plaintiff did not apply and affirmed the district court’s dismissal for failure to state an actionable claim. 216 Kan. at 494.
In her response to Jim’s motion, Carr contended that Jim was liable either on a negligence theory based on his status as a landlord, on a general negligence theory, or on a strict liability theory based upon Jim having harbored a dangerous animal. With respect to Carr s first negligence theory, Carr claimed there was a genuine issue of material fact as to whether Jim actually was Rodney s landlord. Her first position was that Jim was not Rodneys landlord and so the general rule of no liability for landlords in Borders did not apply.
In considering Jim’s motion, we are required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of Carr, the party against whom summary judgment was sought. See Osterhaus, 291 Kan. at 768. Jim claims he was Rodney’s landlord and the no-liability rule of Borders applies. In resisting Jim’s motion Carr claims that summary judgment cannot be awarded based on the Borders no-liability-for-landlords rule because there is a genuine issue as to whether Jim was a landlord.
Jim’s assertion that he was a landlord protected by the principle in Borders makes the facts surrounding the landlord/tenant issue material. Therefore, in determining whether there remains an issue for trial, we are required on this issue to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of there being no landlord/tenant relationship, the position Carr, the nonmoving party, asserts on this issue.
We need not recount all the uncontroverted facts outlined above on this point. It is clear that Jim and Rodney did not have a typical landlord/tenant relationship. Jim referred to the property that Rodney lived on as “more or less kind of a rental property.” There was no written lease or rental agreement. Jim and Rodney claim they had an oral agreement to pay monthly rent, but they disagreed on the amount of the monthly rent. The tenant’s obligation for periodic rent is a typical element of most landlord/tenant relationships. See K.S.A. 58-2545(b). Rodney failed to pay any rent whatsoever for a protracted period before this incident. Jim took no action to require Rodney to pay rent during this period.
It would seem that viewing the evidence in the light more favoring Carr’s position on this point it is possible that a jury could determine that there was no landlord/tenant relationship. The contested issue of Jim’s status vis-a-vis Rodney remains. But the real question is, regardless which way a jury might resolve this issue, would Jim ultimately prevail at trial based on the current state of the law? To answer this question we need to turn to the issue of the Borders exceptions to the rule of no liability for landlords.
The Borders Exceptions to the No-Liability Rule
The court in Borders enumerated six exceptions to the no-liability-for-landlords rule. Carr contends that there is evidence to support two of these exceptions and, therefore, there remains a genuine issue of material fact that must be resolved at trial before Jim’s liability for Rodney’s dog can be determined. The Borders exceptions are:
“(1) when there are dangerous conditions known to the lessor and unknown to the lessee;
“(2) when there are conditions dangerous to persons outside of the premises;
“(3) when the premises are leased for admission of the public;
"(4) when parts of the land are retained in the lessor’s control which tire lessee is entitled to use;
“(5) when the lessor contracts to repair the premises; and
“(6) when the lessor is negligent in making repairs.” Colombel, 24 Kan. App. 2d at 730-31.
Carr relies on the following exceptions:
“(3) when tire premises are leased for admission of the public;
“(4) when parts of the land are retained in the lessor’s control which the lessee is entitled to use.” Colombel, 24 Kan. App. 2d at 731.
Of course, a Borders exception can apply only if there is a landlord/tenant relationship. Jim claimed he was Rodney’s landlord, but Carr denied this claim and contended there is a genuine issue of material fact regarding Jim’s status.
We have determined that Jim’s status as a landlord remains an issue for trial. The sub-issue of the Borders exceptions comes into play only if Jim is found to be a landlord. If Carr prevails on her original contention that Jim was not a landlord, then she must premise her liability claim against Jim on some other theory, because Borders and its exceptions only apply to landlords.
To successfully preserve for trial the claim that Borders exceptions (3) and (4) apply, Carr is in the interesting position of having to infer from the evidence that a landlord/tenant relationship ex isted, the exact opposite of her earlier position. To determine whether there is a genuine issue of material fact as to whether Borders exceptions (3) and (4) apply, we now have to view the evidence from the perspective favoring the existence of a landlord/ tenant relationship, the position advanced by Carr, the nonmoving party, on this point.
Under Borders the general rule of no liability for landlords does not apply:
“(3) when die premises are leased for admission of the public;
“(4) when parts of the land are retained in the lessor’s control which the lessee is entitled to use.” Colombel, 24 Kan. App. 2d at 731.
Borders Exception (3)
With respect to exception (3), we must determine whether, viewing the evidence in the light more favoring Carr, there remains a triable issue as to whether the premises were leased to Rodney for admission of the public. While Rodney characterized his work on lawnmowers as a hobby, he also testified that he received payment for his work on occasion and had visitors at his garage in connection with that activity.
But the Borders exception requires that renting the premises was, at least to some extent, for the purpose of admitting the public to the premises. While we give the nonmovant Carr the break on inferences that can be derived from the evidence, we cannot create an inference out of thin air. Here, the uncontroverted facts do not suggest that Jim acquired the property, fixed it up, and turned it over to Rodney for the purpose or with the expectation that Rodney would use part of the property to operate a repair business that would entertain business invitees. We have no facts as to when Rodney started his lawnmower repair activities. It may have been years after Jim entered into his rental arrangement with Rodney. We have no evidence from which we can infer that running a lawnmower repair business was part of the original plan when Jim turned the premises over to Rodney. Carr has come forward with no evidence from which a jury could reasonably conclude that Jim rented the premises to Rodney so that Rodney could engage in an activity that would involve admitting the public to the premises. We find no triable issue with respect to Borders exception (3).
Borders Exception (4)
Borders exception (4) applies “when parts of the land are retained in the lessors control which the lessee is entitled to use.” Colombel, 24 Kan. App. 2d at 731. In her brief in opposition to Jim’s motion for summary judgment, Carr argues that this exception applies because
“the loose-running Pit Bull bit Plaintiff in Defendant Jim’s driveway, which was the entrance to Defendant Jim’s land where Defendant Jim had retained control over the lessee, Defendant Rodney, and Defendant Jim had failed to exercise reasonable care to make the driveway safe.
“Exception (4) is the second exception that Defendant Jim has satisfied, because he was in control of the driveway which was the common entrance to the house provided to Defendant Rodney.”
We also find no facts from which one could reasonably infer that Jim, as the landlord, leased the house to his son but retained a possessory interest in the driveway. The fact that Jim frequently visited his son and, we presume, used tire driveway in doing so, does not raise the inference that he retained a possessory interest in the driveway. Carr asserts that the driveway was the entrance to Jim’s land. But this was land that Jim rented to Rodney. Jim’s separate residence was about a mile away from Rodney’s rented house. Carr cites nothing in the record that suggests that the driveway served any property other than Rodney’s rented house and garage.
In her brief in opposition to Jim’s motion for summary judgment, Carr argued further: “Because Defendant Rodney was living rent-free and his father, Defendant Jim, was allowing his son to live rent-free, Defendant Jim, as a landlord and father, had almost exclusive control over the premises where Plaintiff was attacked.” We cannot make this inference of control based upon Rodney’s failure to pay rent. The premise for Carr’s contention that Borders exception (4) applies is that a valid landlord/tenant relationship existed. We must infer from the existence of such a relationship that Rodney had exclusive control of the rented premises, and Carr provides no evidence to the contrary.
We find no evidence to support the application of Borders exception (4). Carr, the nonmoving party, was required to come forward with some evidence on this point; she cannot rely on mere allegations. We find no facts from which one could reasonably infer that Jim exercised control over Rodney, or that the driveway where Carr was bitten served any property other than Rodney’s rented house and garage.
Other Theories of Liability
Expanded Landlord Liability for Negligence
Carr contends, in essence, that the Borders exceptions to the rule of no landlord liability should be expanded consistent with holdings from other jurisdictions such as Uccello v. Laudenslayer, 44 Cal. App. 3d 504, 512, 118 Cal. Rptr. 741 (1975); Park v. Hoffard, 315 Or. 624, 632, 847 P.2d 852 (1993); and Palermo v. Nails, 334 Pa. Super. 544, 548-49, 483 A.2d 871 (1984). Carr admits that there is no case in Kansas that expands a landlord’s liability to situations presented in those cases. As an intermediate appellate court we are not inclined to do so when the limited exceptions to the no-liability rule come from our Supreme Court. When one strays beyond those Supreme Court defined exceptions to the no-liability rule, Colombel reminds us: “Kansas follows the common law of injuiy-by-animal. Under the common law, no one but an owner, possessor, keeper,' or harborer of an animal can be held liable for its actions.” 24 Kan. App. 2d at 732.
Strict Liability as a Possessor or Harborer
Jim also relied upon the Restatement (Second) of Torts as support for his summary judgment motion. The court in Colombel considered the application of the strict liability principle found in the Restatement (Second) of Torts § 509(1) (1977), which provides:
“ ‘A possessor of a domestic animal that he knows or has reason to know has dangerous propensities abnormal to its class, is subject to liability for harm done by the animal to another, although he has exercised the utmost care to prevent it from doing the harm.’ (Emphasis supplied.)” 24 Kan. App. 2d at 731.
Carr does not contend that Jim possessed the dog. There certainly is no evidence that he did. But liability is not limited solely to a possessor. The Colombel court noted that § 514 of the Restatement recognizes that one who harbors a vicious animal bears the same strict liability as one who possesses the animal. This is the alternative Carr asserted to her claim that Jim was hable as a landlord. She stated in her brief in opposition to Jim’s motion: “If Defendant Jim is not held to be a landlord, he is strictly liable to Plaintiff as a ‘harborer’ of Defendant Rodney’s dog because he permitted Defendant Rodney, his son, to keep the dog on his property.” She argued that there remained a genuine issue of material fact as to whether Jim harbored the pit bull and, thus, was liable as if he were its possessor.
The court in Colombel found Comment a following Restatement § 514 to be helpful. The comment states:
“The rule stated in this Section imposes tire same liability upon one who, although neither the owner nor the possessor of the animal, harbors it by making it part of his household. This he may do by permitting a member of his household, including those servants who are regarded as members, to keep the animal either in the house or on the premises that are occupied as the home of the family group of which he is tire head. Thus a person harbors a dog or cat by permitting his wife, son or household servant to keep it in the house or on part of his land that is occupied by the family as a group. On tire other hand, the possession of the land on which the animal is kept, even when coupled with permission given to a third person to keep it, is not enough to make the possessor of the land liable as a harborer of tire animal. Thus a father, on whose land his son lives in a separate residence, does not harbor a dog kept by his son, although he has the power to prohibit tire dog from being kept and fails to exercise the power or even if he presents tire dog to his son to be so kept. The same is true when a master permits his servant to keep a dog in a house or part of the premises that is given over to the exclusive occupation of his servant. So, too, he does not become a harborer of a dog that he permits a friend to keep on his land unless he takes it into his home and thus makes it, as it were, a member of his household.” Restatement (Second) of Torts § 514, Comment a.
The Colombel court concluded: “Kansas follows the common law of injury-by-animal. Under the common law, no one but an owner, possessor, keeper, or harborer of an animal can be held liable for its actions.” 24 Kan. App. 2d at 732.
Restatement (Second) of Torts § 514, Comment a, presents a strikingly apropos scenario:
“Thus a father, on whose land his son lives in a separate residence, does not harbor a dog kept by his son, although he has the power to prohibit the dog from being kept and fails to exercise tire power or even if he presents the dog to his son to be so kept.”
This example fits the facts now before us.
As noted in Nichols v. Kansas Political Action Committee, 270 Kan. 37, 43, 11 P.3d 1134 (2000), the Restatement “is not a compilation of Kansas law.” Nevertheless, as our court recently recognized in Estate of Beldon v. Brown County, 46 Kan. App. 2d 247, 271-72, 261 P.3d 943 (2011):
“The Kansas Supreme Court has regularly relied upon die Restatement (Second) of Torts for authoritative guidance in fashioning controlling doctrine on scope of duty, negligence, and related liability issues when a plaintiff alleges a special relationship. [Adams v. Board of Sedgwick County Comm’rs, 289 Kan. 577, 593-97, 214 P.3d 1173 (2009)]; [Hesler v. Osawatomie State Hospital, 266 Kan. 616, 624, 971 P.2d 1169 (1999)] (citing Restatement [Second] of Torts §§ 314A, 316, 319 and 320 [1964]); [Jackson v. City of Kansas City, 263 Kan. 143, 156-57, 947 P.2d 31 (1997)] (applying Restatement [Second] §320); Boulanger v. Pol, 258 Kan. 289, 303-08, 900 P.2d 823 (1995) (noting Restatement [Second] §§ 31520 and applying § 315). The court also frequently draws on the Restatement (Second) in other areas of tort law. See, e.g., Valadez v. Emmis Communications, 290 Kan. 472, 477, 229 P.3d 389 (2010); Puckett v. Mt. Carmel Regional Med. Center, 290 Kan. 406, 421, 228 P.3d 1048 (2010); Thomas v. Benchmark Ins. Co., 285 Kan. 918, 930-33, 179 P.3d 421 (2008). The considered and continuing reliance the court affords die Restatement (Second) as a sound source for legal principles shaping common-law tort doctrine in Kansas lends considerable support to our conclusion here.”
Jim was not a harborer of Rodney’s dog as described in the Restatement. Rodney was not a member of Jim’s household. Rodney maintained his own household on the premises where he lived with his wife. The home where he kept his dog was not the home or premises occupied “as the home of the family group of which [Jim was] the head.” The two homes were about a mile apart. Carr does not provide us with any evidence in the record that Rodney was ever physically present in his father’s house after he took up residence with his wife in the separate house where he kept the dog.
We find no facts from which, with the guidance of the Restatement, we can reasonably infer that Jim harbored the dog. The court in Colombel found the Restatement view of harboring to be persuasive. We do too. We conclude that summary judgment in favor of Jim is appropriate on Carr’s claim of strict liability based on the theory that Jim is liable for possessing or harboring a dangerous dog.
Summary and Conclusion
To briefly summarize our analysis, Jim was either a landlord or he was not. If Jim was a landlord, then the general rule of no liability for landlords announced in Borders applied to insulate him from liability for the injury caused by a dog owned by his tenant and kept on the leased property.
But Carr asserted that if Jim was a landlord, he was subject to two exceptions to the no-liability-for-landlords rule. Our analysis of the two Borders exceptions Carr relied on led us to conclude that neither applied. Thus, if Jim was a landlord, based on the analysis in Colombel and the uncontroverted facts before us, Jim was entitled to judgment as a matter of law on Carr’s claim that he was hable for Carr’s injuries caused by his tenant’s dog.
Carr argued for the application of theories advanced in some other states for imposing liability on a landlord under certain special circumstances. Having determined that those cases do not reflect the law of Kansas on this subject, we concluded that if Jim was a landlord he had no liability to Carr for her injuries and he was entitled to judgment as a matter of law.
If Jim was not a landlord, he could be held liable for Carr’s injuries if he was found to have either possessed or harbored the dog. But there was no claim that Jim possessed the dog; and applying the Restatement (Second) of Torts as Kansas courts regularly do in analyzing tort liability, we concluded that there was no genuine issue of material fact as to whether Jim harbored the dog and Jim was entitled to judgment as a matter of law on Carr’s theory of strict liability.
The district court found that Jim was entitled to summary judgment, and in our de novo review we do too.
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Standridge, J.:
A jury determined Lenny D. Lowry was a sexually violent predator under the Kansas Sexually Violent Predator Act (KSVPA), K.S.A. 59-29a01 et seq. Lowiy appeals from the jury’s verdict, arguing that the district court lacked jurisdiction over him, that he was denied his statutory right to effective assistance counsel, and that the State’s attorney committed reversible misconduct during closing arguments. Because we find no merit to any of these arguments, we affirm the jury’s verdict.
Facts
Lowry was convicted in 1989 of two counts of aggravated incest. The victim was his 12-year-old son. In 1993, Lowry was convicted of two counts of sexually exploiting a 10-year-old child. The 1993 convictions occurred while Lowry was on parole for the 1989 convictions, after Lowry had completed a sex offender treatment program in prison and contemporaneously with Lowry’s participation in an outpatient sexual offender treatment program.
As Lowiy’s prison term for the 1993 convictions neared its end, the State filed a petition requesting civil commitment of Lowry as a sexually violent predator. The court appointed Mark Sevart to represent Lowry and thereafter conducted a probable cause hearing. The court ultimately found the evidence established probable cause to believe that Lowry was a sexually violent predator and, as a result, ordered Lowry to undergo an evaluation at the Lamed State Security Hospital (Larned). Dr. Greg Shannon, under the supervision of Dr. John Reid, evaluated Lowry at Lamed. After the evaluation process was complete, Lowry returned to district court for trial so that a jury could determine whether Lowry was a sexually violent predator under the KSVPA.
Prior to trial, the State’s attorney and Sevart stipulated to the foundation of a file consisting of 2,338 documents reviewed by the doctors evaluating Lowry. These documents included police reports, records of prior legal proceedings, records from the Kansas Department of Corrections (KDOC), and mental health records. The State described the nature of the stipulation in a document it filed with the court:
“[The State] believes the parties have agreed to stipulate to the foundation for die [2,338 pages of] documents in discovery. Specifically, neither side will be required to produce a custodian of records from Lamed State Hospital, the Department of Corrections of Kansas or any othér State or jurisdiction, or the crim inal clerk of any jurisdiction where [Lowry] is alleged to have committed a crime, to provide foundation for the admission, pursuant to K.S.A. 60-460(m) business records hearsay exception, prior to the admission of said documents. Similarly, neither side will be required to produce a certified shorthand reporter to provide foundation for the use of a transcript from prior testimony of any witness.
“The parties reserve the right to object at the time of trial to the admission of said documents on grounds other than foundation, including but not limited to objections based on hearsay and relevance.”.
The parties’ stipulation also included an agreement by the parties that &e documents would be admitted for the limited purpose of an appellate record and, although any of the documents could be used to question the experts testifying at trial, the jurors would not have access to the documents during their deliberations.
At trial, the State presented the testimony of Drs. Reid and Shannon. Dr. Reid, a psychologist at Lamed, testified that he regularly performed evaluations at the hospital in order to determine whether, in his opinion, a particular individual was a sexually violent predator under the KSVPA. Dr. Reid estimated he had performed 40 such evaluations in the past and determined about 50 percent of the time that the individual evaluated was a sexually violent predator. In addition to conducting evaluations, Dr. Reid supervised other staff members at Larned who performed the evaluations. In this case, Dr. Reid supervised Dr. Shannon, the staff member who was assigned to evaluate Lowiy. Specifically, Dr. Reid participated in Dr. Shannon’s 45-minute interview of Lowry and examined Dr. Shannon’s evaluation and report.
Dr. Reid testified that an important component of tire evaluation process is a determination regarding whether the individual evaluated has accepted responsibility for his or her past actions. Dr. Reid noted that accepting responsibility for past actions demonstrates the individual has changed his or her behavior and thus is unlikely to reoffend in the future. Dr. Reid testified that during Lowry’s 45-minute interview, Dr. Shannon asked Lowry about tire circumstances surrounding his 1993 convictions for sexual exploitation of a child. Lowry responded that he was not going to deny that the acts occurred but explained that he had told the children he did not care what they did in his home as long as they did not hurt themselves. Dr. Reid testified Lowry’s explanation indicated that Lowry was not willing to take responsibility for his past actions.
Dr. Reid rioted that Lowry had been through a sex offender treatment program while incarcerated but found no evidence— based on his interview with Lowry and his review of Dr. Shannon’s report—that Lowiy had benefitted from the treatment he received. Specifically, Dr. Reid noted that Lowry reoffended in 1993 while on parole from his first convictions after receiving treatment in prison.
Based on his observation of Dr. Shannon’s interview with Lowry, his review of Dr. Shannon’s report and evaluation of Lowiy, and his subsequent discussion with Dr. Shannon about the report and evaluation, Dr. Reid testified he agreed with the conclusions drawn by Dr. Shannon, which diagnosed Lowiy as suffering from the mental abnormalities of pedophilia, nonexclusive (attracted to both adults and children) and alcohol dependence in a controlled environment. Dr. Reid testified that he also agreed with Dr. Shannon’s conclusion that Lowry suffered from antisocial personality disorder. Finally, Dr. Reid testified that he agreed with the ultimate conclusion in Dr. Shannon’s report finding Lowiy to be a sexually violent predator.
On cross-examination, Dr. Reid admitted that during the time Dr. Shannon was conducting Lowry’s evaluation and completing the report, Dr. Shannon was not licensed as a doctor of psychology in Kansas. Dr. Reid also admitted not knowing whether Dr. Shannon had completed all of the course work necessaiy to earn a doctorate during the time period in question. Dr. Reid conceded Dr. Shannon’s evaluation of Lowry was either the first or second evaluation ever completed by Dr. Shannon and that because Dr. Shannon had performed most of the interviews of Lowiy outside of Dr. Reid’s presence, Dr. Reid could not know for sure whether Dr. Shannon performed the interviews correctly.
Although initially refusing to permit this line of questioning on cross-examination, the district court ultimately permitted Sevart to ask Dr. Reid about three instances in which Dr. Reid’s staff had evaluated individuals who ultimately were not deemed to be sexually violent predators by the hospital staff, notwithstanding the fact that each of the individuals had committed sexual offenses that arguably were much worse than those committed by Lowry. Dr. Reid conceded during this cross-examination that one of the individuals evaluated had received a higher score on the Static-99 test (an actuarial test used to determine the chances of a person committing a new sexual offense once he or she is released from prison) than the score Lowry received on the same test.
On redirect-examination, Dr. Reid explained that past offenses, regardless of how objectionable they may have been, were not the sole factor for determining whether an individual qualified as a sexually violent predator. With regard to his confidence in Dr. Shannon’s work, Dr. Reid said that he believed Dr. Shannon was qualified to perform Lowry’s evaluation. Dr. Reid also said that he found nothing in the evaluation to indicate that Dr. Shannon did not meet the highest standards of the psychiatric profession in completing the report.
Dr. Shannon testified that his duties at Larned included performing competency and sexually violent predator evaluations. Dr. Shannon stated that at the time he evaluated Lowry, he had received his doctorate in psychology but had not received his temporary license (a temporary license can only be issued to a person with a doctorate in psychology). At the time of trial, Dr. Shannon had received his temporary license but was awaiting his results from the national licensure examination.
In describing the process of conducting an evaluation to determine whether a person is a sexually violent predator, Dr. Shannon said:
“There are several pieces then to such an evaluation. We want to do a clinical interview and look at the biopsychosocial aspect of the individual; what life was like growing up, developmental kind of issues. That’s one set of data.
“We may do testing as a second piece of data. We do record reviews from various records from various sources. Perhaps treatment records from past hospitalizations, records from the Department of Corrections, records from the sex offender treatment program the individual may have gone through.
“So it’s a veiy comprehensive review of the individual.”
Dr. Shannon said that in considering whether Lowry was a sexually violent predator, he reviewed the 2,338 pages of documents contained in Lowry’s file, interviewed Lowry for about 8 hours over the course of 1½ months, and had Lowry perform two personality tests and an aggression questionnaire. Dr. Shannon stated that the results from one of the personality tests were invalid because the responses Lowry gave to the questions on the test (true or false questions) were inconsistent and indicated that Lowry was trying to portray himself in an overly positive light. Although die results from the other personality test also indicated that Lowry was not being completely honest in answering questions, Dr. Shannon did not believe the indicators were strong enough to render die test results invalid. Dr. Shannon noted, however, that the responses on this test suggested diat Lowry did not believe he suffered from problems which are common to most people.
During his interview with Lowry, Dr. Shannon said that Lowry described his childhood as troubled. Lowiy reported dropping out of high school when he was 16 years old and getting married when he was 21 years old. Two children resulted from this relationship.
Dr. Shannon testified that Lowry reported limited legal troubles in his life but not to the extent set forth in Lowry’s official file. For instance, during his interview, Lowry failed to tell Dr. Shannon about being charged in 1981 with impersonating an officer and escaping from custody. The impersonating an officer charge was ultimately dismissed, but Lowry was convicted of escaping from custody.
When Lowry was asked about the 1989 convictions for aggravated incest involving his then 12-year-old son, Lowry told Dr. Shannon that he was trying to teach his son that he ioved him. Lowry also explained that he engaged in sex acts with his son after his son asked him about homosexual sex. Lowry mentioned in passing that after going through a sex offender treatment program, he realized that his behavior was inappropriate.
With regard to Lowry’s 1993 convictions for sexual exploitation of a child, Dr. Shannon said that Lowry did not provide much information to him about die underlying facts other than stating that he encouraged children to be free inside his home, to run naked, and to do what they wanted. Dr. Shannon noted, however, that the records from that case reflect that Lowry was convicted of two counts of sexual exploitation based on his act of setting up a video camera inside his home and persuading a 10-year-old boy to take his clothes off and fondle himself in front of tire camera. Nevertheless, Lowry failed to acknowledge during his interview that he violated tire child. Dr. Shannon also reviewed a statement about tire incident that Lowry wrote while participating in a prison sex offender treatment program between September 1996 and February 1998. In the statement, Lowry admitted to providing cigarettes and alcohol to children in order to persuade them to engage in sex acts. Dr. Shannon noted that the 1993 incident occurred while Lowry was on parole and participating in an outpatient sexual offender treatment program and after he had received sex offender treatment in prison.
Dr. Shannon testified that an individual who successfully has completed a sex offender treatment program will be very honest in describing past thoughts, fantasies, and actions and will acknowledge the harm caused to his or her victims. Dr. Shannon reported that Lowry did not display these characteristics during his interview. Dr. Shannon said that when Lowry spoke about his past sexual transgressions, he appeared to downplay their significance and did not take full responsibility for his actions. Dr. Shannon also said that Lowry did not display empathy for his victims or recognize tire harm that he had inflicted on them.
Dr. Shannon noted that Lowry had drafted a relapse prevention plan in February 1998 while participating in the prison sex offender treatment program. In his plan, Lowry described his victims as male and female, ages 10 to 13 years old, and described his sex acts as voyeurism, fondling genitals, masturbating; and/or performing oral sex. When Dr. Shannon asked Lowry about the conditions that “trigger” his desire to engage in deviant sex acts, Lowry de- ■ scribed his triggers as secrecy, dependency on work, stress, eating junk food, consuming alcohol, and not taking care of himself. Dr. Shannon believed those triggers were the same ones Lowry described in his' prior relapse prevention plan. Other tiran vague references to joining a support group or being involved in community activities, 'Lowry did not explain how he planned to prevent those triggers from occurring. .
Lowiy noted in his 1998 prevention plan that, if released from prison, he would join an Alcoholics Anonymous group, involve himself in a support group, and join a church .group. When Dr. Shannon asked Lowiy about his current prevention plan, Lowiy described doing essentially the same things to prevent himself from reoffending. Dr. Shannon said Lowry’s 1998 relapse prevention plan and his current plan were both “woefully inadequate.” In fact, Dr. Shannon noted that after Lowiy completed sex offender treatment in 1998, he was issued two disciplinary reports involving sexual behavior with another inmate. The most recent disciplinary report was issued in 2005. Based on the information gleaned from Lowry and his file during the evaluation, Dr. Shannon concluded that tire sexual offender treatment program in prison failed to rehabilitate Lowry.
As a result of the evaluation process, Dr. Shannon diagnosed Lowiy as suffering from the mental disorders of pedophilia, nonexclusive (attracted to children and adults) and alcohol dependence in a controlled environment—meaning Lowry currently was in an institutional setting where alcohol was not available, but the issue of alcohol dependence had not been fully addressed clinically. Dr. Shannon also diagnosed Lowry as suffering from antisocial personality disorder, which causes the sufferer to have a pervasive disregard for tire rights of others. Dr. Shannon stated that a person with antisocial personality disorder is generally described as being callous, unemotional, perhaps impulsive, and unable “to recognize the emotional state of another.” Dr. Shannon further stated that Lowry’s disorders and his lack of response to treatment indicated that Lowry lacked “the volitional capacity to control his impulses,” making it likely that Lowiy would engage in future acts of sexual violence. In support of this conclusion, Dr. Shannon referenced results from the Static-99 test and the'Minnesota Sex Offender Screening Tool-Revised (MnSOST-R) he administered to assess the likelihood of Lowry committing a new sex offense after being released from prison. On the Static-99, Lowry scored a 6, placing Lowry in the high risk category with a sexual recidivisiri risk of 36 percent within 5 years, 44 percent within 10 years, and 51 percent within 15 years. On the MnSOST-R, Lowry scored a 7, placing him within the moderate category for sexual recidivism with a 29 percent risk of reoffending within 6 years.
In response to Dr. Shannon’s testimony on direct examination, Sevart conducted an extensive and aggressive cross-examination of tire doctor. Counsel presented Dr. Shannon with various documents from Lowry’s file to demonstrate that Dr. Shannon selectively extracted from the file only those documents unfavorable to Lowry and ignored those documents in Lowiy’s file that were favorable. For instance, Dr. Shannon conceded that he did not include within his report a statement from Lowry’s son about the circumstances surrounding the 1989 convictions. Lowry’s son stated that his father had gotten carried away teaching him about girls and “the birds and the bees.” Lowry’s son asked that his father not be put in prison and that he receive counseling for his drinking problem. Finally, the son said that he forgave Lowry for what he had done.
Additionally, Dr. Shannon conceded that his report focused primarily on Lowry’s past behavior and did not include some of his more recent accomplishments. For example, Dr. Shannon also conceded that he mentioned Lowry’s work history as a child and teenager but failed to include any information in his report regarding the positive reviews Lowry received from an employer in 1989 or that, while incarcerated, Lowry was trusted to work in the kitchen of a minimum security facility. Dr. Shannon noted in his report that Lowry had dropped out of high school in the 10th grade but failed to include the fact that Lowry received his GED and a diploma from a technical college while in prison. Dr. Shannon acknowledged that he failed to document Lowry’s statement in 1998 that if released from prison, he would live in an adult apartment complex, he would attend counseling, and he would tiy to find a job that he could advance in and enjoy. Finally, Dr. Shannon acknowledged he did not include in his report the fact that Lowry successfully had completed a substance abuse program in April 1996 and a mental health treatment program in October 1998.
Sevart also questioned Dr. Shannon about the manner in which he scored Lowry’s responses on the Static-99. At first, Dr. Shannon admitted he made mistakes in calculating the score. Upon further review, however, Dr. Shannon told the jury on redirect-examination that he had misspoken about making errors in the calculation and that Lowry’s original score of 6 was correct. Regardless, Dr. Shannon acknowledged that the Static-99 test does not give credit for completing sex offender treatment and that the MnSOST-R actually assigns a higher score to a person with a shorter history of sexually deviant behavior than compared to a person with a longer history.
Dr. Shannon also testified on cross-examination about documents contained in Lowry’s file related to his mental health between February 2003 and September 2005. Sevart elicited testimony from Dr. Shannon about an April 26, 2005, treatment note that identified Lowry’s mental health problem as grief issues and thereafter recommended grief counseling (not sex offender treatment) to address this problem. But Dr. Shannon explained that the treatment recommended did not stem from a general or comprehensive evaluation of Lowry, but instead was in response to a particular issue presented by Lowry at the time.
Sevart then presented Dr. Shannon with other mental health treatment notes that omitted any reference to Lowry ever receiving a diagnosis of pedophilia. With regard to one of these documents, Dr. Shannon responded that the notes were not documented properly and thus failed to affirmatively rule out the possibility that the evaluator would have diagnosed Lowry as suffering from pedophilia. At this point, counsel accused Dr. Shannon of intentionally disregarding documents in Lowxy’s file that failed to support his diagnosis of Lowry. This drew an objection from the State, which the district court sustained.
Sevart also questioned Dr. Shannon about a discharge summary from 1998 detailing Lowry’s performance in sex offender treatment. Dr. Shannon conceded that this program was probably better than the one Lowry attended during his first stint in prison but noted that the author of the summary gave Lowry only an average chance of following the program’s recommendations. Dr. Shannon also admitted that the program’s recommendations could be achieved through Lowry’s parole plan, which counsel thereafter introduced into evidence. The plan reflected that Lowry would be on parole until July 2020.
When Sevart finished cross-examination, Dr. Shannon testified on redirect examination that Lowry’s work history and prison education, while commendable, were not relevant to making an ultimate determination in this case. Dr. Shannon found it significant that Lowry’s 1998 relapse prevention plan stated he was open to options and recommendations to help him prevent relapse once released. Dr. Shannon testified such a statement indicates that Lowry had failed to establish a personal plan to effectively control himself once he was released on parole.
After Dr. Shannon was through testifying, tire State rested. Se-vart did not present any evidence on Lowry’s behalf. During closing argument, Sevart argued the State had failed to establish beyond a reasonable doubt that Lowry was a sexually violent predator. Specifically, Sevart argued the documents used to question Dr. Shannon established that Lowry was never diagnosed with a mental abnormality (other than alcoholism) by any of the prison staff who worked with him on mental health issues in prison. Sevart further argued that there were no documents in Lowry’s prison file recommending that he be sent to Lamed.
Sevart reminded the jury that Lowry had been through extensive sexual offender and drug and alcohol treatment programs while in prison and had a comprehensive parole plan in place that would ensure he would not reoffend. In addition, Sevart pointed out that Lowiy was educated, marketable, and had received favorable reviews while he was working. Finally, Sevart noted that prison officials had trusted Lowiy to work in the prison kitchen and in minimum security settings.
With regard to Dr. Shannon’s testimony, Sevart suggested to the jury that Dr. Shannon was a biased witness who relied only on those documents in Lowry’s extensive file that supported his conclusions. Sevart also pointed out that Dr. Shannon had a hard time determining whether he had made a mistake in scoring Lowry’s Static-99 test. Sevart also attacked the reliability of the Static-99 and MnSOST-R tests in predicting Lowry’s chances of reoffending. Sevart argued that the Static-99 did not give Lowry credit for com pleting a sexual abuse treatment program in prison, and Sevart argued that the MnSOST-R was illogical because it predicted that people with a longer history of committing sexual offenses would have a lesser chance of reoffending than compared to people with a shorter history. Finally, Sevart reminded the jury that Dr. Reid and his colleagues had found three individuals not to be sexually violent predators despite the fact that the sex offenses they committed were more egregious than Lowry’s and the fact that they received higher scores on the Static-99 than Lowry.
Despite Sevart’s efforts, the jury concluded that Lowry was a sexually violent predator. After denying Lowry’s motions for judgment notwithstanding the verdict and a new trial, the district court ordered Lowry to be committed to Larned to undergo treatment. Lowry filed a timely notice of appeal and was appointed new counsel to represent him on appeal. Prior to briefing the appeal, Lowry filed a motion to remand his case to the district court for a Van Cleave hearing to determine whether his trial counsel provided ineffective assistance. See State v. Van Cleave, 239 Kan. 117, 119-20, 716 P.2d 580 (1986). This court granted the motion and, while retaining jurisdiction, remanded the matter to the district court to conduct a hearing.
At the hearing, Sevart described his defense strategy:
“Well, I felt that the record from the prison demonstrated that Mr. Lowry did not suffer from pedophilia or any other mental defect or disorder as enumerated under the sexual predator statute; that particular element of the offense just was not there.
“I also felt that he was not likely to reoffend; that there was insufficient evidence to support that; and that essentially his parole plan would be an appropriate disposition of his status or situation.”
In preparing for trial, Sevart said that he reviewed the thousands of documents contained in Lowry’s file and hired Dr. Robert Barnett to review Dr. Shannon’s evaluation as well as other evaluations and documents contained in Lowry’s file. Dr. Barnett ultimately interviewed Lowry at the Sedgwick County jail. After consulting with Dr. Barnett, Sevart determined Barnett’s opinion was not helpful to Lowry and that Dr. Barnett’s testimony at trial could be damaging to Lowry’s case. Sevart did not consult with another expert.
Sevart also testified about the parties’ stipulation to the documents contained in Lowry’s file. Sevart said he understood the stipulation permitted the parties to use any document in Lowry’s file to question Dr. Reid and Dr. Shannon at trial. With that said, Sevart also believed the stipulation prohibited the parties from providing the documents to the jurors during their deliberations. Se-vart conceded that the stipulation prevented the parties from objecting to the introduction of the documents based on hearsay but noted that the stipulation did not prevent the parties from lodging objections based on other objections, such as relevance or the evidence being cumulative.
Sevart said that he used the documents in Lowry’s file to challenge Dr. Shannon’s conclusions but noted that Dr. Shannon was a difficult witness who routinely questioned the validity or downplayed the significance of documents used to cross-examine him. Sevart believed Dr. Shannon’s conduct at trial violated the parties’ stipulation to the truth of the matters stated within any particular document. Sevart explained that tire parties intended the documents contained in Lowry’s file to speak for themselves, which eliminated the need for the author of a particular report to testily at trial about the report’s validity.
Finally, and with regard to Sevart’s failure to use two documents from Lowry’s file to question Dr. Shannon’s conclusions, Sevart agreed—based on the description of the documents provided to him at the Van Cleave hearing—that they would have been helpful in questioning Dr. Shannon and disputing his conclusions.
After closing arguments, the district court concluded that Se-vart’s representation of Lowry did not constitute ineffective assistance of counsel. Lowry then filed a second, timely notice of appeal.
Analysis
Lowry asserts the following three points of error on appeal: (1) The district court did not have jurisdiction in the proceedings below; (2) he was denied his statutory right to effective assistance counsel; and (3) the State’s attorney committed reversible misconduct during closing arguments. We address each point of error in turn.
1. Jurisdiction
Lowry contends the district court never acquired jurisdiction over him because the State’s petition failed to allege sufficient facts to show that he was a sexually violent predator. Specifically, Lowry contends the petition references an attachment in support of the allegation that Lowry suffers from pedophilia, but there was never an attachment to the petition and one is not contained in the record on appeal. Given the referenced document was not attached, Lowry argues the petition failed to allege sufficient facts to initiate commitment proceedings and thus deprived the district court of jurisdiction over him.
Lowry’s argument raises an issue of statutory interpretation, a question over which this court exercises unlimited review. Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009). Furthermore, whether jurisdiction exists is a question of law over which this court’s scope of review is unlimited. Steed v. McPherson Area Solid Waste Utility, 43 Kan. App. 2d 75, 87, 221 P.3d 1157 (2010).
K.S.A. 59-29a04(a) states:
“When it appears that tire person presently confined may be a sexually violent predator and the prosecutor’s review committee appointed as provided in subsection (e) of K.S.A. 59-29a03 and amendments thereto has determined that the person meets the definition of a sexually violent predator, the attorney general, within 75 days of the date the attorney general received the written notice by the agency of jurisdiction as provided in subsection (a) of K.S.A. 59-29a03 and amendments thereto, may file a petition in the county where the person was convicted of or charged with a sexually violent offense alleging that the person is a sexually violent predator and stating sufficient facts to support such allegation. ” (Emphasis added.)
Fatal to Lowry’s claim here, subsection (b) of the statute specifically states that “[t]he provisions of this section are not jurisdictional, and failure to comply with such provisions in no way prevents tire attorney general from proceeding against a person otherwise subject to the provision of K.S.A. 59-29a01 et seq., and amendment thereto.” K.S.A. 59-29a04(b). Thus, even if Lowry’s argument concerning the need to attach a document to the petition was true, it would not deprive the district court of jurisdiction.
Regardless, the petition clearly sets forth that (1) Lowry had been convicted of and sentenced for a sexually violent offense, i.e., sexual exploitation of a child; (2) he has a history of sexual conduct demonstrating a mental abnormality or personality disorder; (3) his mental abnormality or personality disorder made him likely to engage in repeat acts of sexual violence; and (4) his condition makes it difficult for him to control his dangerous behavior. These factual allegations are sufficient to support the ultimate allegation in the petition that Lowry may be a sexually violent predator. See K.S.A. 59-29a02(a) (defining the term sexually violent predator); In re Care & Treatment of Williams, 292 Kan. 96, 106, 253 P.3d 327 (2011) (listing elements that must be proved beyond reasonable doubt in order to find that someone is a sexually violent predator).
2. Assistance of Counsel
Because commitment proceedings under the KSVPA are civil in nature, Lowry did not have a constitutional right to counsel, but he did have a statutory right. See K.S.A. 59-29a06(b) (“At all stages of the proceedings under [the KSVPA], any person subject to [the KSVPA], shall be entitled to the assistance of counsel, and if the person is indigent, the court shall appoint counsel to assist such person.”); In re Care & Treatment of Ontiberos, 45 Kan. App. 2d 235, 237, 247 P.3d 686, aff'd 295 Kan. 10, 287 P.3d 855 (2012). When a person has a statutory right to counsel, he or she is entitled to receive effective assistance of counsel. Cf. Robertson v. State, 288 Kan. 217, 228, 201 P.3d 691 (2009) (once statutory right to counsel attaches in a K.S.A. 60-1507 proceeding, movant is entitled to effective assistance of counsel; appointment of counsel should not be a useless formality). “The benchmark forjudging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. [Citation omitted.]” Crowther v. State, 45 Kan. App. 2d 559, 563-64, 249 P.3d 1214, rev. denied 293 Kan. 1105 (2011).
Regardless of whether the right to effective counsel is based on the Sixth Amendment to United States Constitution or on a state statute, we apply the traditional, two-prong test to determine whether the right has been violated. See Robertson, 288 Kan. at 232 (after establishing that counsel’s performance was deficient, a 60-1507 movant must establish that he or she was prejudiced by counsel’s performance; the level of prejudice that must be established is the same as that imposed in constitutional cases).
“The first prong of the test for ineffective assistance of counsel requires a showing that counsel made errors so serious that his or her performance was less than guaranteed by the Sixth Amendment to the United States Constitution. [Citation omitted.] This prong requires a showing that counsel’s representation fell below an objective standard of reasonableness, considering all the circumstances. Our scrutiny of counsel’s performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. This court indulges a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.
“The second prong of the test for ineffective assistance of counsel requires a showing that there is a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation omitted.]” Crowther, 45 Kan. App. 2d at 564.
To that end, Lowry contends Sevart’s performance at trial was deficient in the following ways: (a) Sevart misconstrued the parties’ stipulation to the foundation of the documents, which prevented Lowry from challenging unfavorable testimony provided by Dr. Shannon; (b) Sevart’s cross-examination of Dr. Shannon was ineffective because he failed to use two specific documents to contest Dr. Shannon’s conclusions regarding Lowry; (c) Sevart failed to argue that the State’s evidence did not establish all of the elements of pedophilia contained in the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV); and (d) Sevart failed to ask the district court for funds for an expert witness based on a mistaken belief that funds for such an expert were unavailable.
a. Sevan’s Understanding of the Parties’ Stipulation
Lowry argues Sevart’s testimony at the Van Cleave hearing established Sevart mistakenly believed that by stipulating to the foundation of the documents contained in Lowry’s file, the parties agreed that the information contained in the documents was truthful. Lowry contends this mistaken belief caused Sevart to decide against calling any witnesses at trial to establish the validity of documents favorable to Lowry but construed as unfavorable by Dr. Shannon. Lowxy further contends Sevart’s mistaken belief about the stipulation allowed the State to present evidence at trial with no challenge from Sevart.
But even if, as Lowry argues, Sevart did not present a competing expert to challenge Dr. Shannon’s unfavorable interpretation of documents on cross-examination and did not lodge an objection to Dr. Shannon’s unfavorable interpretation of documents on direct examination, Lowry has failed to explain why Sevart’s actions in this regard rise to the level of deficient performance. In fact, the trial transcript reflects that Sevart used numerous documents from Lowry’s file to question Dr. Shannon in an attempt to show that the doctor had only considered negative information about Lowry to determine that he was a sexually violent predator. Sevart was successful in having Dr. Shannon admit (albeit temporarily) that he had made a mistake in calculating Lowiy’s Static-99 score. Se-vart also questioned Dr. Shannon thoroughly about the mental health records contained in Lowry’s file. Although Dr. Shannon downplayed the significance or challenged the validity of some of these documents, he also conceded that other documents showed that Lowry had been previously diagnosed as suffering from substance abuse and not pedophilia. Lowry fails to explain how these concessions by Dr. Shannon could have been enhanced at trial with expert testimony.
During Dr. Shannon’s direct examination, Sevart prevented Dr. Shannon from testifying about two disciplinary reports that Lowry had received in prison for possessing obscene material. This is just one example of the numerous objections Sevart raised at trial during Dr. Shannon’s testimony, and Lowry fails to identify other ob jections that Sevart could have raised during Dr. Shannon’s testimony. Contrary to Lowry’s assertion, the State did not present evidence at trial with impunity.
Simply put, Lowry has failed to show that counsel’s representation fell below an objective standard of reasonableness, considering all the circumstances.
b. Sevart’s Failure to Use Two Documents in Questioning Dr. Shannon
Next, Lowry argues that Sevart was ineffective by failing to confront Dr. Shannon with two reports on cross-examination, the result of which would have cast doubt on Dr. Shannon’s conclusions that Lowry suffered from pedophilia and antisocial personality disorder and scored a 6 on the Static-99.
The first report referenced by Lowry is what he describes as a “full psychological evaluation” that diagnosed Lowry as engaging in adult antisocial acts and suffering from alcoholism. Notably, the report does not indicate that Lowry suffers from pedophilia or antisocial personality disorder. Lowry contends that Sevart should have used this report to question Dr. Shannon about his conclusion that Lowry suffers from the two disorders.
But Lowry misconstrues the context in which the report was written. The document at issue—an intake summary—is from April 26, 1989, and details the findings of a 1-hour intake session that Lowry underwent at the Sedgwick County Mental Health Department. The cover letter to the report, dated January 8, 1990, specifically states that Lowry did not undergo a “psychological examination.” Furthermore, the diagnoses contained in tire report are explicitly described as “tentative,” and the report defers making a personality disorder diagnosis. Although the report describes one diagnosis of Lowry as “Adult Antisocial Acts,” it notes parenthetically that the acts at issue are “[ijncest and indecent liberties.”
The second document referenced by Lowry is a “Clinical Service Report for the Kansas Parole Board” written in 2003. The report was written following a short interview with Lowry (1 hour and 30 minutes). While the authors of the report ruled out pedophilia, nonexclusive, they did diagnose Lowry with suffering from a “per sonality disorder, not otherwise specified.” And, although tire authors gave Lowry a score of 4 on the Static-99 (indicating that Lowry had a medium-high chance of reoffending), the authors also used the RRASOR test to evaluate Lowry. The results of this test showed that Lowry scored a 5, indicating ¡that Lowry had a 49.8 percent chance of reoffending within 5 years after release and a 73.1 percent chance of reoffending within 10 years after release. Notably, the report stated that “[t]he results of the Static 99 and the RRASOR show that the prognosis for this inmate to successfully complete parole and not re-offend again is poor.”
Although the two reports may have contained some conclusions about Lowry that were at odds with the conclusion reached by Dr. Shannon, the first report does not discuss the results of a full psychological evaluation and thus would not have detracted from Dr. Shannon’s conclusions that Lowry suffered from pedophilia and antisocial personality disorder and scored a 6 on the Static-99. Meanwhile, the second report contains more damaging information than it does beneficial. Considering all of the circumstances, we are not persuaded that counsel’s representation fell below an objective standard of reasonableness.
c. Sevart’s Failure to Argue that the Elements of Pedophilia Contained in the DSM-IV Were Not Established in this Case
Next, Lowry argues Sevart should have used the elements of pedophilia listed in the DSM-IV to argue that the State failed to present sufficient evidence at trial to show that Lowry suffered from that abnormality. But there is no requirement under the KSVPA that the State must establish that a person suffers from a mental abnormality recognized by the DSM-IV before that person can be found to be a sexually violent predator. See In re Care & Treatment of Dahl, No. 96,728, 2007 WL 2768036, at *2 (Kan. App. 2007) (unpublished opinion). By statutory definition, a mental abnormality is “a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others.” K.S.A. 59-29a02(b); PIK Civ. 3d 130.21. Presuming that the plain language of the statute expresses the legislature’s intent, there is no indication that the legislature intended mental abnormalities or personality disorders to be limited to those specifically referenced in the DSM-IV. Consequently, the State is not required to establish the elements of a mental abnormality (as defined by the DSM-IV) before a person can be declared a sexually violent predator. Because such an argument lacks merit, Sevart’s performance was not deficient for failing to raise the argument at trial or for failing to question Dr. Reid and Dr. Shannon about the elements of pedophilia listed in the DSM-IV.
d. Sevart’s Failure to Seek the Assistance of an Expert Due to His Belief that Funds for an Expert Were Unavailable
Finally, Lowry claims Sevart was ineffective for failing to seek tire assistance of an expert due to a mistaken belief that there was. no funding available to do so. The record shows that Sevart expressed frustration numerous times with the budget he was given to defend Lowry. But, contrary to Lowry’s claim, the record also shows that Sevart did seek the assistance of an expert. Specifically, Sevart hired Dr. Barnett to review Dr. Shannon’s evaluation of Lowry and to review other evaluations and documents contained in Lowry’s file. Sevart also had Dr. Barnett interview Lowry at the Sedgwick County jail. In fact, there is a journal entry in the record showing that the district court, based on Sevart’s motion, ordered the Board of Sedgwick County Commissioners to pay Dr. Barnett $1,250 for his “Clinical Review, Mental Status Examination, Psychological Testing, Review of Records, Consultation with Attorney, and his commute to provide services.” Sevart noted at the Van Cleave hearing that after speaking to Dr. Barnett, he concluded that the doctor’s opinion was not helpful to Lowry and that his testimony at trial was potentially damaging to Lowry’s case.
In light of the circumstances presented, we find Sevart’s decision to refrain from seeking the services of another expert was a reasonable one. See Rowland v. State, 289 Kan. 1076, 1083-84, 219 P.3d 1212 (2009) (If counsel has made a strategic decision after making a thorough investigation of the law and the facts relevant to the realistically available options, then counsel’s decision is vir tually unchallengeable. Strategic decisions made after a less tiran comprehensive investigation are reasonable exactly to the extent a reasonable professional judgment supports die limitation on the investigation.); Sidebottom v. Delo, 46 F.3d 744, 753 (8th Cir.) (Counsel is not required to “ ‘continue looking for experts just because the one he has consulted gave an unfavorable opinion.’ ”), cert. denied 516 U.S. 849 (1995).
Based on the above analysis, we are not persuaded that Sevart’s representation fell below an objective standard of reasonableness. To the contrary, the transcript of Lowry’s trial shows that Sevart was well prepared and performed admirably in defending Lowry. Because there is no evidence of deficient performance, it is unnecessary to address the prejudice prong of Lowry’s ineffective assistance of counsel claim.
3. Prosecutorial Misconduct
Finally, Lowry argues that he did not receive a fair trial due to comments made by the State during its rebuttal argument.
Recently, a panel of this court in In re Care & Treatment of Ontiberos stated that “complaints of prosecutorial misconduct, common in our criminal jurisprudence, are inappropriate in sexually violent predator proceedings” and, thus, the two-step analysis used in criminal cases to judge alleged instances of prosecutorial misconduct claims is inapplicable in sexually violent predator cases. 45 Kan. App. 2d at 247. Instead, the central consideration for a court reviewing comments made by counsel during a sexually violent predator proceeding is whether the comments deprived the respondent of a fair trial. 45 Kan. App. 2d at 248.
After Sevart argued during his closing argument that the conditions placed on Lowiy while on parole would be sufficient to ensure that he would not reoffend, the State presented its rebuttal argument, during which counsel stated:
“I’m asking you to follow foe law. Hold me to the burden the law requires of me.
“This parole plan, it’s handy, it’s not, but it doesn’t come from him. There is something die parole board imposed on him you shall do, and diey give out a litany of dungs he’s going to be required to do. Great.
“The question is, has he learned anything. Can he articulate what he will do.
“Unless there’s a parole officer standing at his hip 24/7 until 2020, that is not worth the paper it’s written on.
“He has to—this has to last him the rest of his life. He has to show you—he has to show that he has learned something; that he can, indeed, change; that he is no longer a risk.
“What he actually changed. Can he tell the doctors that he’s changed.
“I understand the static test only looks at static things. MnSOST, we can mock it all you want. Well, it’s generally accepted test in the field. They look at all kinds of things. Other treatments he’s been through, they still find that he’s in that moderate risk. He is beyond just he doesn’t pose a risk, he still poses a risk.
“Worked in the kitchen. His son thought he had some good part to him, he wasn’t worth throwing away, he needs treatment.
“I understand there are—he’s not some knuckle dragging mean guy who beats people up in the yard at prison.
“The question is, his pedophilia, his anti-social personality disorder cause him to pose a risk. The tests say yes. He can’t prove to tire doctors otherwise.
“Mr. Sevart: I’ll object to burden shifting.
“THE COURT: Sustained.
“One minute.
“MR. BENNETT [the State’s attorney]: I have to prove beyond a reasonable doubt. Don’t misunderstand my statement.
“When given the opportunity to explain himself to those doctors, he can not do it after all this time.
“As Mr. Sevart points out, with all that’s at stake, he still can’t. Does that not answer the question for you.
“Thank you.”
Lowiy contends the State’s comments during its rebuttal argument suggested to the jurors that Lowry had the burden of proving to them that he did not pose a risk to reoffend if released on parole. But in making this argument, Lowry misconstrues the reference made within the State’s comments. Specifically, the State’s comments relate to Dr. Reid’s and Dr. Shannon’s testimonies at trial regarding Lowry’s statements in response to questions posed about Lowry’s past crimes. Both Dr. Reid and Dr. Shannon testified that when determining whether someone is likely to reoffend in tire future, it is important to determine whether that person has accepted responsibility for his or her past crimes. Both doctors stated that Lowry’s comments about his past crimes demonstrate that he did not take responsibility for his actions, which in turn demon strates that prior sex offender treatment programs had failed to rehabilitate Lowry.
Furthermore, Lowry described his triggers for engaging in unlawful sex acts as secrecy, dependency on work, stress, eating junk food, consuming alcohol, and not taking care of himself—normal conditions of everyday life. But, when Dr. Shannon asked Lowry how he would prevent these triggers from occurring, Lowry offered vague references to joining a support group and being involved in community activities. In his 1998 prevention plan, Lowry noted that if released from prison, he would join an Alcoholics Anonymous group, involve himself in a support group, and join a church group. When Dr. Shannon asked Lowry about his current prevention plan, Lowry described doing essentially the same things to prevent himself from reoffending. Dr. Shannon concluded that Lowry’s personal plan for preventing himself from reoffending was “woefully inadequate.”
Based on this evidence, we conclude the State simply was commenting on what Dr. Reid and Dr. Shannon had already indicated to the jurors—that Lowry’s statements during the interviews did not correspond to what Dr. Reid and Dr. Shannon would expect from a sex offender who had been rehabilitated and prepared for life outside of prison. In other words, Lowry had failed to show the doctors that he was likely to control his behavior if released on parole. Thus, the statements at issue were simply comments on the evidence and were also in response to Sevart’s closing argument, in which Sevart argued that the conditions imposed on Lowry while on parole would be sufficient to prevent him from reoffending. As such, we conclude the statements at issue did not deprive Lowiy of a fair trial.
Affirmed. | [
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|
Greene, C.J.:
Christian W. Reese appeals his sentence for a fifth lifetime conviction of driving under the influence of alcohol (DUI), arguing that the district court erred in failing to retroac tively apply K.S.A. 2011 Supp. 8-1567(j)(3), which, for purposes of determining whether a DUI conviction is a first, second, third, fourth, or subsequent conviction, shortens the “look-back” provision language from “any convictions occurring during a person’s lifetime” to “only convictions occurring on or after July 1, 2001.” L. 2011, ch. 105, sec. 19.
Factual and Procedural Background
On July 3, 2009, Reese was arrested for DUI, and he was convicted on June 6, 2011. His presentence investigation report reflected DUI convictions from 1983, 1985, 1988, and 1999. Reese filed a motion to strike his prior DUI convictions as being outside the scope of the new “look-back” provision of K.S.A. 2011 Supp. 8-1567(j)(3) in effect at the time of sentencing. The district court denied the motion and found that Reese’s July 3, 2009, DUI was a fourth or subsequent DUI conviction under K.S.A. 2009 Supp. 8-1567 and sentenced Reese accordingly.
Reese appeals, arguing that the district court erred in refusing to retroactively apply K.S.A. 2011 Supp. 8-1567(j)(3).
Did the District Court Err in Refusing to Retroactively Apply K.S.A. 2011 Supp. 8-1567(j)(3)?
Reese argues that the change to K.S.A. 8-1567’s “look-back” provision should be applied retroactively. At the time Reese committed his fifth lifetime DUI, the Kansas DUI statute contained a lifetime “look-back” provision; that is, any conviction occurring during a person’s lifetime was taken into account when determining the sentence to be imposed for a second, third, fourth, or subsequent offender. K.S.A. 2009 Supp. 8-1567(o)(3). It was not until 2011 that the legislature amended the “look-back” period to provide that “only convictions occurring on or after July 1, 2001, shall be taken into account when determining the sentence to be imposed for a first, second, third, fourth or subsequent offender.” K.S.A. 2011 Supp. 8-1567(j)(3); L. 2011, ch. 105, sec. 19.
Reese argues that because each of his four prior DUI convictions occurred before July 1, 2001, he should have been sentenced as a first-time offender under the amended statute that became effec tive before his sentencing. Interpretation of a statute is a question of law over which an appellate court has unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
Reese argues that the amendment is clear, plain, and unambiguous on its face; as of July 1, 2011, DUI convictions occurring before July 1,2001, are not to be considered for sentence enhancement. Although the amendment was effective before Reese’s sentencing, it was not effective when his crime was committed.
It is a fundamental rule of criminal procedure in Kansas that a defendant is sentenced based on tire law in effect when the crime was committed. State v. Williams, 291 Kan. 554, 559, 244 P.3d 667 (2010); State v. Walker, 277 Kan. 849, 850, 89 P.3d 920 (2004). As a policy matter, our Supreme Court has explained that “having the penalty parameters for an offense ‘fixed as of the date of the commission of the offense is fair, logical, and easy to apply.’ ” Williams, 291 Kan. at 560. Our Supreme Court has found that a defendant’s sentence was properly enhanced under the habitual criminal statute even though after the defendant committed aggravated burglary, but before his trial and sentencing, the statute was amended and no longer authorized a trial court to double the maximum sentence for a defendant convicted of aggravated burglary. State v. Mayberry, 248 Kan. 369, 387, 807 P.2d 86 (1991). Similarly, a panel of this court has found that an amendment to the driving while suspended statute, changing the conviction from a felony to a misdemeanor, did not apply retroactively. State v. Edwards, 28 Kan. App. 2d 379, 380-81, 15 P.3d 855 (2000); see State v. Martin, 270 Kan. 603, 607-10, 17 P.3d 344 (2001).
Moreover, we discern no language in the legislation that would indicate intent for retroactive application of this provision. Our Supreme Court has stated the fundamental rule regarding retro-activity of statutory changes:
“The fundamental rule is that a statute operates prospectively unless its language clearly indicates that the legislature intended it to operate retroactively. [Citation omitted.] An exception to the fundamental rule is that if the statutory change does not prejudicially affect the substantive rights of tire parties and is merely procedural or remedial in nature, it applies retroactively. [Citation omitted.]” Williams, 291 Kan. at 557.
Because the legislature did not clearly indicate that it intended the amendment to operate retroactively, it operates prospectively unless we conclude that tire procedural or remedial exception somehow applies. Our Supreme Court has defined substantive and procedural laws as follows: “ ‘As related to criminal law and procedure, substantive law is that which declares what acts are crimes and prescribes the punishment therefor; whereas procedural law is that which provides or regulates the steps by which one who violates a criminal statute is punished.’ ” Tonge v. Werholtz, 279 Kan. 481, 487, 109 P.3d 1140 (2005). Prospective application of a statute affecting sentencing necessarily means it applies to crimes committed thereafter.
Here, the district court found that the “look-back” amendment was a substantive change in the law and should not be applied retroactively. We agree. Our Supreme Court has found that a stat-utoiy amendment modifying the severity of punishment for a conviction alters substantive rights, and therefore only operates prospectively. Williams, 291 Kan. at 557. We see no reason the Williams rationale and conclusion should not apply here.
Reese also argues, however, that the legislature clearly intended K.S.A. 2011 Supp. 8-1567(j)(3) to apply retroactively where a sentence had not been imposed prior to the effective date of the amendment. We disagree. The legislature explicitly provided for retroactive application of some provisions within the Act, thus indicating no intent for retroactivity where not explicitly provided; specifically, K.S.A. 2011 Supp. 8-1014(g) allows a defendant to retroactively apply the amended penalty provisions regarding suspension and restriction of driving privileges. This amendment was contained in the same act as the amendment to K.S.A. 2011 Supp. 8-1567(j)(3). See L. 2011, ch. 105, secs. 14,19. Similarly, the DUI Commission recommended retroactive application of the amended penalty provisions of K.S.A. 2011 Supp. 8-1014 if requested. Report of the Kansas DUI Commission to the 2011 Kansas Legislature, at 21-25 (2010). Because the legislature clearly provided for retroactive application in one area of the Act, its failure to do so for K.S.A. 2011 Supp. 8-1567(j)(3) must be considered as reflective of an intention for the “look-back” change to be applied prospec tively only. See In re Petition to Call Grand Jury, No. 103, 723, 2011 WL 4716342, at *4 (Kan. App. 2011) (unpublished opinion) (noting that although the legislature knew how to provide a right to appeal, it did not do so), rev. denied 294 Kan. 944 (2012).
Finally, Reese argues that the statute should be applied retroactively because he should receive the benefit of an ameliorative sentencing amendment, citing Alaska caselaw to support his argument. As the State notes, however, Reese does not cite Kansas caselaw supporting this argument. Our Supreme Court has never recognized any such rule, and until it does, we are not inclined to embrace it despite its recognition elsewhere. See, e.g., State v. Jaben, 294 Kan. 607, Syl. ¶¶ 3-4, 277 P.3d 417 (2012); State v. Roseborough, 263 Kan. 378, 383-86, 951 P.2d 532 (1997); Mayberry, 248 Kan. at 387; see also State v. Nunn, 244 Kan. 207, Syl. ¶ 8, 768 P.2d 268 (1989) (remedial statute applied retroactively when it is merely procedural).
For all of these reasons, we conclude that the district court did not err in refusing to apply K.S.A. 2011 Supp. 8-1567(j)(3) retroactively.
Affirmed. | [
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|
McAnany, J.:
This is the parties’ second visit to our court following proceedings in the district court. Their dispute centered on the formation of a business called Winning Streak Sports, LLC (WSS), which apparently took over and continued a business operated by Christopher J. Davis and Winning Streak, Inc. (WSI).
First Suit
In 2006, WSI and Davis sued U.S. Hardwood Distributors, Inc. (Hardwood), Lauren Larson, and WSS for various claims, including breach of fiduciary duties. Davis also sought a declaratory judgment that he owned a 49% membership interest in WSS. The defendants denied that Davis had any membership interest in WSS and counterclaimed for damages for Davis’ claimed overstatement of the net value of assets he sold to the new venture. They also asked the court to declare that Davis had no membership interest in WSS. The fiduciary duty claims were tried to a jury, and the question of Davis’ membership in WSS was reserved for the court.
The jury returned its verdict finding that (1) Davis had been a member of WSS, (2) Davis never withdrew from membership in WSS, (3) Larson and Hardwood breached fiduciary duties they owed to Davis, and (4) Davis suffered $600,000 in damages from the acts of Larson. The jury awarded no punitive damages. On WSS’s counterclaim for breach of contract, the juiy awarded damages against Davis in the amount of $74,788.39. The jury awarded an equal amount against Davis and in favor of WSS, Hardwood, and Larson for negligent misrepresentation.
Following the jury trial, the district court took up the competing declaratory judgment claims and determined that Davis had a 0.96% membership interest in WSS.
First Appeal
Hardwood and Larson appealed the $600,000 juiy verdict, and Davis cross-appealed the declaratory judgment ruling. Hardwood and Larson argued that the district court erred in instructing the jury on Davis’ breach of fiduciary duty claims. They argued that there was no evidence to support Davis’ breach of fiduciary duty claims because any such claims belonged to WSS and not Davis individually. Hardwood and Larson did not object to the court’s instructions, possibly because they did not concede that Davis had any membership interest in WSS, which would have given him standing to pursue the fiduciary duty claims on behalf of the limited liability company (LLC). On appeal, we rejected this claim of error because evidence at trial supported all the elements necessary to support a favorable verdict for Davis.
On Davis’ cross-appeal of the district court’s declaratory judgment, we found that viewing die evidence in the light favoring the prevailing parties and leaving to the district court matters regarding the credibility of the witnesses, there was substantial evidence to support the district court’s finding that Davis’ membership interest in WSS was only 0.96%. Our Supreme Court denied further review. See Winning Streak, Inc. v. Winning Streak Sports, LLC, No. 100, 725, 2010 WL 348272 (Kan. App.) (unpublished opinion), rev. denied 291 Kan. 918 (2010).
Current Suit
Davis then brought this current action in which he seeks indemnification under K.S.A. 17-7670(b) for his attorney fees incurred in the original action against WSS. The parties filed cross-motions for summary judgment. The district court entered summary judgment in favor of WSS, finding that Davis was only “nominally successful” in his claim against WSS and, therefore, was not a prevailing party under K.S.A. 17-7670(b) and was not entitled to attorney fees.
Current Appeal
Davis appeals. The controlling statute for this appeal is K.S.A. 17-7670, which provides:
“(a) Subject to such standards and restrictions, if any, as are set forth in its operating agreement, a limited liability company may, and shall have the power to, indemnify and hold harmless any member or manager or other person from and against any and all claims and demands whatsoever.
“(b) To the extent that a member, manager, officer, employee or agent has been successful on the merits or otherwise or the defenses of any action, suits or proceeding, or in defense of any issue or matter therein, such director, officer, employee or agent shall be indemnified against expenses actually and reasonably incurred by such person in connection therewith, including attorney fees.”
There is no contention on appeal that subsection (a) of the statute applies. Davis’ overarching claim on appeal is that the district court erred in entering summary judgment in WSS’s favor. He argues that the uncontroverted facts establish he was “successful” in his litigation against WSS, and thus, entitled to an award of attorney fees under K.S.A. 17-7670(b). WSS argues that Davis was not the prevailing party, and thus, not entitled to fees because he sought to establish that he had a 49% interest in WSS and the district court found that his interest was only 0.96% membership interest.
Standard of Review
This matter comes to us following the district court’s entry of summary judgment in favor of WSS. The parties and their counsel are well acquainted with the standards by which the district court considers a summary judgment motion. We apply those same standards de novo on appeal. See Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011).
The interpretation of K.S.A. 17-7670(b) is central to our resolution of this appeal. The interpretation of a statute is a question of law over which we have unlimited review. Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009). In examining K.S.A. 17-7670(b), we are mindful of the fundamental consideration that the intent of the legislature governs if that intent can be discovered. See Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607, 214 P.3d 676 (2009). In attempting to discover the legislature’s intent, we examine the language of the statute, giving common words their common and ordinary meanings. Padron v. Lopez, 289 Kan. 1089, 1097, 220 P.3d 345 (2009). When the language of the statute is plain and unambiguous, we do not speculate as to the legislative intent behind it and do not read into the statute something that is not there. Double M Constr. v. Kansas Corporation Comm'n, 288 Kan. 268, 271-72, 202 P.3d 7 (2009). Nevertheless, we can correct clerical or inadvertent errors in terminology if the intent of the legislature is plain and unmistakable. Ft. Hays St. Univ. v. University Ch., Am. Ass’n of Univ. Profs, 290 Kan. 446, 464-65, 228 P.3d 403 (2010).
Once we establish the meaning of K.S.A. 17-7670(b) and identify the class of persons entitled to relief under its provisions, we must examine the uncontroverted facts to determine whether Davis, as a matter of law, falls within the class. If he does, he is only entitled to partial summary judgment because the facts upon which to determine the proper amount of an award of fees are unresolved. In that case, the matter must go back to the district court for further proceedings on the proper amount that should be awarded. If Davis does not fall within the class of persons entitled to indemnity by WSS under K.S.A. 17-7670(b), tiren resolution becomes simpler: WSS is then entitled to judgment as a matter of law.
Discussion
In arguing their positions before the district court, and again before us on appeal, the parties focused on the question of who was the successful or prevailing party in the case. WSS argued in oral argument before us that there can only be one prevailing party. Davis cannot be considered the prevailing party because he lost on the issue of the extent of his interest in WSS. He claimed a 49% interest in WSS, but the court determined in the declaratory judgment action that his interest was only 0.96%. The defendants also prevailed on their counterclaims.
On the other hand, Davis argued that he did prevail because he succeeded in the key determination that he had an interest in WSS. The defendants had contended that Davis had no interest what soever. Further, Davis obtained a $600,000 judgment in the jury trial on his breach of fiduciary duty claims against Larson and Hardwood.
The parties argue that, under the statute, whether there is indemnification for fees depends on whether the party making a claim for indemnity “has been successful on the merits or otherwise.”
The legislature easily could have provided for the right to indemnity if “a member . . . has been successful on the merits or otherwise.” See K.S.A. 17-7670(b). But that is not what tire legislature said. It provided a right to indemnity to the extent that “a member... has been successful on the merits or otherwise.” K.S.A. 17-7670(b). Applying the fundamental rules of statutory interpretation, we give ordinary words their ordinary meaning. What tire legislature enacted was not an indemnity right reserved for only the wholly successful litigant. The statute in plain and simple language requires indemnity to the extent that a litigant prevails.
There is no doubt that Davis prevailed, at least in part, in this litigation. The proceedings in the district court were divided between the membership issue, which was the subject of the declaratory judgment action to be resolved by the court, and the breach of fiduciary duly claims, which were resolved by the jury.
In the declaratory judgment action the court determined that Davis’ interest in WSS was only 0.96%, not the 49% he claimed. Many of the defendants’ arguments carried tire day. Nevertheless, the jury determined that Davis was a member of WSS, a fact that die defendants hotly disputed. Being recognized as a member of WSS, though having only a miniscule interest, gave Davis certain rights and privileges as a member that otherwise would have been denied to him.
In the jury trial regarding Davis’ breach of fiduciary duty claims, he obtained a $600,000 verdict. But he was not wholly successful in that action. On WSS’s counterclaim for breach of contract, the jury awarded damages against Davis in the amount of $74,788.39. The jury awarded an equal amount against Davis and in favor of WSS, Hardwood, and Larson for negligent misrepresentation.
The indemnity provision in K.S.A. 17-7670(b) is mandatory. To the extent that the party has been successful, indemnity shall be provided. Davis is entitled to indemnity to the extent that he was successful.
Davis’ indemnity claim is for the attorney fees he incurred in the original action. These summary judgment proceedings cut short the inquiry into what would be a reasonable fee under the circumstances. While the language of K.S.A. 17-7670(b) is mandatory with respect to indemnity for fees, the amount of fees awarded rests within the sound discretion of the district court. See Unruh v. Purina Mills, 289 Kan. at 1200. In making its determination of the amount of fees for which WSS must indemnify Davis, the district court must consider not only tire extent to which Davis succeeded in the original suit, but also the factors set forth in Rule 1.5(a) (2012 Kan. Ct. R. Annot. 492) of the Kansas Rules of Professional Conduct which are used in deciding the reasonableness of an attorney fee request. See Johnson v. Westhoff Sand Co., 281 Kan. 930, 940, 135 P.3d 1127 (2006).
Our analysis is consistent with that employed by the Delaware Court of Chancery in May v. Bigmar, Inc., 838 A.2d 285 (Del. Ch. 2003). Delaware has a statute, Del. Code Ann. tit. 8, § 145(c), which is markedly similar to K.S.A. 17-7670(b). May was a former officer and director of the defendant Bigmar. She contended that a meeting of the board of directors had not been validly convened. She also contended that the written consents removing a number of directors from tire board were valid. The vice chancellor hearing the casé determined that the board meeting had not been properly convened and that the written consents removing the various directors were not valid consents. Thus, May prevailed on one issue but not tire other. As a result of the unfavorable ruling on the directors issue, May resigned from Bigmar. The court stated:
“The right to indemnification for corporate officers is well established in Delaware. This right, however, is not a ‘blank check for corporate officials’ and the court must determine the extent of indemnification in light of the results of the litigation. The idea that a corporate officer should only be indemnified in an amount that reflects her limited success is supported by Section 145 jurisprudence. In this case, May was successful on the claim relating to the validity of die November 16-18 meeting, but she lost the claim that she removed directors by written consent. Plaintiff seeks an indemnification award of $588,273.32, an amount that she says represents the cost of litigating whether die November 16-18 meeting was validly held.
“The touchstone for awarding fees in an indemnification action is reasonableness. In a partial indemnification case, the burden is on the plaintiff to submit ‘a good faith estimate of expenses incurred’ relating to die indemnifiable claim. May is entitled to partial indemnification to die extent that she can prove that die expenses were ‘actually and reasonably incurred in relation to die November 16-18 meeting claim.” 838 A.2d at 288-89.
We commend to the district court on remand the discussion in May regarding the calculation of indemnifiable fees in a case such as this. The factors to be considered in assessing reasonable attorney fees under the Delaware Lawyers’ Rules of Professional Conduct are the same factors found in Rule 1.5 of the Kansas Rules of Professional Conduct. See Mahani v. EDIX Media Group, Inc., 935 A.2d 242, 245-46 (Del. 2007).
In concluding our discussion of this initial point, we need to discuss the cases cited by WSS in its appellate brief.
WSS cites Harris Market Research v. Marshall Marketing, 948 F.2d 1518, 1527-28 (10th Cir. 1991), and a slew of other cases to support the proposition that we should apply the abuse of discretion standard in reviewing the district court’s ruling on indemnification for attorney fees. Those cases apply when it is discretionary with the court whether, and how much, fees should be awarded. Here, the language of K.S.A. 17-7670(b) is mandatory, not discretionary. So the threshold “whether” issue is not left to tire discretion of the district court. Only the “how much” issue remains discretionary with the district court, and that issue has yet to be addressed by the district court.
WSS cites C.W. Beamgard Co. v. Luedke, 17 Kan. App. 2d 654, 656, 842 P.2d 317 (1992), as an example in which “the plaintiff was not a ‘successful appellee’ where the court reduced a small claims judgment by 60 percent.” The issue was whether Beamgard was entitled to an award of attorney fees under K.S.A. 1991 Supp. 61-2709(a), which stated that an appellee that successfully defends an appeal from small claims proceedings is entitled to reasonable attorney fees incurred on appeal. Unlike K.S.A. 61-2709(a), the in demnity provision in K.S.A. 17-7670(b) now before us cuts the all- or-nothing Gordian knot by a determination of whether a party was successful by providing for indemnification to the extent that a member succeeds. The issue then becomes not whether, but how much.
We also note Fusion Inc. v. Nebraska Aluminum Castings, Inc., 962 F. Supp. 1393 (D. Kan. 1977), which was considered by the district court. There, applying Kansas law, the district court applied the net judgment rule in considexing who the prevailing party was and in apportioning the award of attorney fees based upon the extent of the prevailing party’s success. Fusion was analyzed under a different rubric: whether the party claiming fees was the prevailing party. Yet approaching the issue from this different perspective still led the court to an analysis based on the extent that the fee-claiming party was successful in the litigation. Here, we have an explicit legislative directive that a party be indemnified for expenses to the extent that party is successful.
WSS’s Other Arguments
Because the district court determined that Davis was not a successful paily and not entitled to indemnity, the court did not reach other issues raised by WSS. Because we have determined so far that Davis is entitled to indemnity under K.S.A. 17-7670(b) to the extent that he succeeded, we must address WSS’s other contentions.
• No Operating Agreement
WSS argues that because there was no operating agreement Davis cannot seek relief under K.S.A. 17-7670(b). It is undisputed that there was no WSS operating agreement that provided indemnification for fees.
K.S.A. 17-7670(a) permits, but does not require, an LLC operating agi'eement to provide indemnity for its members. The statute provides that “a limited liability company may, and shall have the power to, indemnify and hold harmless any member.” K.S.A. 17-7670(a). WSS contends “the requirement of an operating agreement must extend to parts (a) and (b) . . . [ojtherwise, pail: (b) is an inflexible mandate that erases the discretion granted by part (a).”
WSS relies on In re ALH Holdings LLC, 675 F. Supp. 2d 462 (D. Del. 2009), and Senior Tour Players v. Golftown, 853 A.2d 124 (Del. Ch. 2004). Neither appears to advance WSS’s cause.
In ALH Holdings, there was an operating agreement, but it did not provide for indemnification. After denying indemnification based on the terms of the operating agreement, the district court addressed an alternative claim that the plaintiffs raised under Del. Code Ann. tit. 8, § 145(c). That is the statute that is substantially similar to K.S.A. 17-7670(b). The district court denied that claim because “[t]he challenged transactions resulted from decisions made by the Supervisory Board, not from any actions taken by a director of ALH’s subsidiary companies.” 675 F. Supp. 2d at 484-85.
The court in ALH Holdings had the opportunity to expressly hold that indemnification is not permissible unless it is called for in the operating agreement. It declined to do so, instead noting that invoicing the rights under Del. Code Ann. tit. 8, § 145(c) would be inappropriate because of the circumstances of the parties’ transaction. Thus, the court applied the two statutory indemnity provisions independently of one another.
In Senior Tour Players, which also deals with Del. Code Ann. tit. 6, § 18-108, the parties had an operating agreement that required die company to indemnify and advance legal fees to the extent allowed by law. The court did not discuss Del. Code Ann. tit. 8, § 145(c), Delaware’s statute comparable to K.S.A. 17-7670(b), but addresses only the law applicable when an operating agreement is already in place.
Finally, we need only turn to the plain and unambiguous language of the statute to resolve this issue. When the language of a statute is plain and unambiguous, we do not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. Double M Constr., 288 Kan. at 271-72.
Under K.S.A. 17-7670(a) an LLC is permitted, but not obligated, to indemnify a member against “any and all” claims. This is without regard to the merits of the claim or the rightness of the members position. On the other hand, under K.S.A. 17-7670(b) the LLC is required to provide indemnity to the extent that the member has been successful. The fact that indemnity is required when the member is successful, in spite of the lack of an indemnity provision in an operating agreement, does not undermine the LLC’s discretionary power to provide indemnity to a member with regard to all claims, regardless of their merit.
We conclude that the lack of an operating agreement does not render K.S.A. 17-7670(b) inoperative.
• Unconstitutionally Vague
WSS next argues that K.S.A. 17-7670 is unconstitutionally vague because subsection (b) “does not clearly define who is entitled to indemnity.”
A statute is presumed constitutional, and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court has the duty to do so. Rural Water District No. 2 v. City of Louisburg, 288 Kan. 811, 817, 207 P.3d 1055 (2009).
As noted earlier, the fundamental rule of statutoiy construction is that the intent of the legislature governs if that intent can be ascertained. Bergstrom v. Spears Manufacturing Co., 289 Kan. at 607. If the intent of the legislature is plain and unmistakable, we are permitted to correct clerical or inadvertent errors in terminology. Ft. Hays St. Univ. v. University Ch., Am. Ass’n of Univ. Profs., 290 Kan. at 464-65.
WSS’s argument is based on an obvious clerical error in the drafting of K.S.A. 17-7670(b). The statute reads:
“(b) To the extent that a member, manager, officer, employee or agent has been successful on the merits or otherwise or the defenses of any action, suits or proceeding, or in defense of any issue or matter therein, such director, officer, employee or agent shall be indemnified against expenses actually and reasonably incurred by such person in connection therewith, including attorney fees.” (Emphasis added.) K.S.A. 17-7670(b).
WSS.points out directors do not exist in an LLC and argues that the legislature “confused corporate participants with LLC partid- pants.” But considering the statute in its entirety, including subsection (a), which permits indemnity by agreement of LLC members for any and all claims, we are satisfied that the legislature intended in K.S.A. 17-7670(b) to require indemnity for LLC members to the extent that they have been successful in any suit or proceeding contemplated by the statute.
In upholding our duty to resolve all doubts in favor of this statute’s validity if there is any reasonable way to do so, and in exercising our power to correct clerical or inadvertent errors in terminology when the intent of the legislature is plain and unmistakable, we read K.S.A. 17-7670(b) to include LLC’s members in the class of persons entitled to indemnity to the extent &ey are successful in litigation.
We find no merit in WSS’s constitutional challenge to the statute.
• Claims Personal To Davis
Finally, WSS argues that Davis is precluded from recovery under K.S.A. 17-7670(b) because the statute “is not designed to reimburse Davis for the prosecution of his personal ownership claims.” WSS contends that Davis’ suit advanced only his private interest; therefore, he should not be entitled to indemnity as a member of WSS.
WSS relies on Shearin v. E.F. Hutton Group, Inc., 652 A.2d 578 (Del. Ch. 1994), which is a whistleblower case in which the plaintiff was fired from her position as in-house counsel to E.F. Hutton Trust Company after disclosing to the Hutton Trust board of directors what she thought was inappropriate use of Hutton Trust by its parent company, E.F. Hutton Group, Inc. The plaintiff sought damages for defamation, breach of employment contract, and interference with her employment contract. She also sought to assert the rights of E.F. Hutton Group’s shareholders from an unrelated merger.
The court held that Shearin was not entitled to be indemnified for her litigation expenses because “permissible indemnification claims will include those deriving from lawsuits broüght by directors, officers, agents, etc., only insofar as the suit was brought as a part of the employee’s duties to the corporation and its shareholders.” 652 A.2d at 594. Shearin did not meet that qualification because she was no longer an employee at Hutton Trust and no longer had any responsibilities to the company when she filed suit.
The circumstances here are different from those in Shearin. In Shearin, the plaintiff sued her former company after she was already disassociated from it. Davis’ contention was that he was a member in WSS at the time of his suit, and he sought to invoke his rights as a member.
WSS argues that Davis’ “litigation provided no benefit to the corporation” and therefore he is not entitled to be indemnified for his legal expenses. WSS does not provide any support for the notion that indemnity is not required when the underlying action benefits both the LLC and the individual plaintiff.
At the jury trial in the first suit Davis claimed Larson and Hardwood engaged in improper conduct that directly affected Davis’ claim of membership in WSS. He claimed that Hardwood and Larson backdated stock certificates that inaccurately recorded that Hardwood and Larson were members of WSS but Davis was not. Davis claimed Hardwood and Larson backdated meeting minutes, resolutions, and operating agreements in order to improperly defeat his claim of membership. Davis made other claims that he alleged affected him personally but also dealt with the integrity of the LLC’s books and records. The juiy returned a general verdict in favor of Davis, so we have no basis for determining on which of the various claims the jury based its verdict. But in the first appeal we determined that under our standard of review, there was substantial evidence that Davis suffered a personal loss to support a jury verdict in his favor. Nevertheless, it is apparent that the issues Davis brought forth also benefited WSS’s interest in being able to properly identify its members and to determine what intei'est they held in the LLC. Davis’ suit also brought to light irregularities in essential books and records of the company..
As Davis points out, his efforts to gain recognition as a member of WSS were closely tied to the alleged improper conduct of Hardwood and Larson in conducting the business of WSS and main taining WSS’s books and records. We cannot conclude, as WSS argues, that Davis’ suit advanced only his private interest.
WSS’s motion for summary judgment should be denied. Davis is entitled to partial summary judgment on his claim for indemnification for attorney fees. But before a final judgment for indemnification can be entered, the district court must exercise its discretion in establishing an amount of recoverable attorney fees, which is reasonable under the circumstances.
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Malone, C.J.:
Mary Ann Wright appeals the district court’s-judgment denying her claims for relief under K.S.A. 60-1507. Wright was convicted of rape and her conviction was affirmed by the Kansas Supreme Court on direct appeal. State v. Wright, 290 Kan. 194, 224 P.3d 1159 (2010). Wright later filed a K.S.A. 60-1507 motion raising claims of ineffective assistance of counsel. The district court denied relief after conducting an evidentiary hearing. On' appeal, Wright argues that her trial counsel’s - request for a general verdict form when she was charged with alternative means of committing rape violated her constitutional right to effective assistance of counsel. Wright further argues that her appellate counsel was unconstitutionally ineffective for failing to argue in her direct appeal that sexual intercourse with a person who does not consent under circumstances when the victim is overcome by force or fear constitutes alternative means of committing rape.
We conclude that Wright’s trial counsel was not ineffective for requesting a general verdict form on tire rape charge. As to Wright’s appellate counsel, the district court’s finding that counsel’s performance did not fall below an objective standard of reasonableness is supported by substantial competent evidence. But even if the performance of Wright’s appellate counsel was somehow deficient, we conclude that Wright has failed to show prejudice. Accordingly, we affirm the district court’s judgment denying Wright’s claims for relief under K.S.A. 60-1507.
Factual and Procedural Background
Wright provided massages out of her home, and the rape charge stemmed from a client’s allegations that Wright had penetrated her vagina with two fingers during a May 2005 massage. At the March 2006 trial, the evidence established that the client, J.L., had dozed off during the massage and when she awoke to the realization that Wright was digitally penetrating her vagina, she was paralyzed with fear. The district court instructed the jury that it could find Wright guilty of rape- if “ The act of sexual intercourse was committed without the consent of J.L. under circumstances-when: (a) she was overcome by force or fear; or (b) she was unconscious or physically powerless.’ ” See 290 Kan. at 199. The district court and the State initially agreed that an appropriate verdict form would list two alternative means of committing rape and give the jury the option to convict Wright on either, both, or neither. But at the specific request of Wright’s trial counsel, the district court gave the juiy a general verdict form on the charge of rape. The jury found Wright guilty of rape, and the district court sentenced her to 155 months’ imprisonment.
Wright appealed to this court, arguing that her conviction should be reversed because there was insufficient evidence to convict her under the “force or fear” means of committing rape. See 290 Kan. at 200. This court affirmed Wright’s conviction in an unpublished opinion filed June 6, 2008, (citing Griffin v. United States, 502 U.S. 46, 112 S. Ct. 466, 116 L. Ed. 2d 371 [1991], and State v. Dixon, 279 Kan. 563, 112 P.3d 883 [2005], disapproved by Wright, 290 Kan. at 206) rev. granted 287 Kan. 769 (2008), and holding that it is proper to affirm an alternative means case “ ‘if there is strong evidence supporting one theory and no evidence supporting the other theory’ because any error is harmless. [Citation omitted.]” See 290 Kan. at 200. Because Wright effectively conceded that there was sufficient evidence to convict her under the unconscious or physically powerless means of committing rape, this court rejected Wright’s alternative means argument and upheld her rape conviction. See 290 Kan. at 200.
On a petition for review before our Supreme Court, Wright again did not challenge the sufficiency of tire State’s proof on the unconscious or physically powerless means of committing rape; rather, she asserted again that there was insufficient proof of rape committed by force or fear. Wright contended that even though one of the alternative means of committing rape was sufficiently proved the court should reverse her conviction because another alternative means was not sufficiently proved pursuant to State v. Timley, 255 Kan. 286, 875 P.2d 242 (1994).
In analyzing Wright’s claim, our Supreme Court traced the history of alternative means jurisprudence in Kansas. 290 Kan. at 201-06. In reviewing Kansas caselaw, our Supreme Court acknowledged a perceived tension between Timley and Dixon. In Timley, the defendant was convicted of multiple counts of rape and aggravated criminal sodomy, and on appeal, the defendant argued that the district court erred in instructing the jury that it could find him guilty if it found that the sexual acts were perpetrated by use of force or fear because the instructions deprived him o.f a unáriimous verdict. The Timley court found that in an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged, but unanimity is not required as to the means by which the crime was committed so long as substantial evidence supports each alternative means. 255 Kan. at 289. The court concluded there was sufficient evidence for the jury to find Timley guilty of the crimes both by the means of force and by the means of fear, so there was no error in including both alternative means in one instruction to the jury. 255 Kan. at 290. In Dixon, a case involving alternative means of committing burglary, the court concluded that when there is sufficient evidence supporting one alternative means of committing a crime and no evidence of the other theory, instructing the jury on both means is harmless error. 279 Kan. at 605-06. The Wright court determined that Timley and Dixon “ ‘simply cannot coexist.’ ” 290 Kan. at 205. The Wright court specifically adopted the Timley rule, disapproving any contrary language in Dixon. 290 Kan. at 206.
Applying the Timley rule to Wright’s case, our Supreme Court found no error and affirmed Wright’s rape conviction, stating there was sufficient evidence to find Wright guilty beyond a reasonable doubt of committing rape by force or fear. 290 Kan. at 206. The court stated that it did not matter that the initial penetration by Wright may not have been temporally coincidental with J.L.’s fear. 290 Kan. at 207. The court concluded that “[tjhere is no error under the Timley alternative means rule here, because the evidence of each means of committing rape—by force or fear or by unconsciousness—was sufficient to uphold a guilty verdict on the rape charge.” 290 Kan. at 207.
Wright subsequently filed a motion pursuant to K.S.A. 60-1507. She argued that her right to effective assistance of counsel under the Sixth and Fourteenth Amendments to the United States Constitution had been violated by both her trial and appellate counsel. Among other reasons, Wright claimed that her trial counsel was ineffective because he erroneously argued for a general verdict form instead of a special verdict form which would have required the jury to identify the specific means of committing rape upon which the guilty verdict was based. Wright contended that her appellate counsel was ineffective for failing to argue that rape by force or fear presented two alternative means of committing the crime. After a preliminary review of the motion, the district court appointed counsel for Wright and granted an evidentiary hearing.
At the evidentiary hearing, Gail Jensen, Wright’s trial counsel, testified that he did not argue force and fear as separate alternative means of committing rape, nor did he malee a distinction between the two. He believed that the only way the State could prove rape was on tire theory that the sexual act occurred while J.L. was unconscious. Regarding the verdict form, Jensen did not recall whether he requested a general or a special verdict form. Upon reviewing the transcript of the jury trial, Jensen stated that it appeared he argued for a general form. When asked why, Jensen stated that he believed a general verdict form was more consistent with his position that the evidence supported only one means by which his client could have committed the crime.
Next, Michelle Davis, Wright’s appellate counsel, testified at the hearing. Davis testified that she. argued force and fear as one means of committing rape and that she understood Timley as ruling that a jury need not be unanimous on one alternative means of committing the crime as long as there is sufficient evidence of each means. Davis also testified that the Timley court treated force and fear as two separate means of committing rape, and Davis stated that although she did not raise force and fear as separate means, she should have done so because it was a meritorious argument. Davis admitted that it was not a strategic move; rather, she just did not think of raising force and fear as separate means of committing rape.
After hearing the evidence, the district court took the matter under advisement. The district court subsequently filed a written opinion denying Wright’s K.S.A. 60-1507 motion, finding that neither trial counsel nor appellate counsel was ineffective. Wright timely appealed the district court’s judgment.
Ineffective Assistance of Trial Counsel
Wright argues that her constitutional right to effective assistance of counsel, as guaranteed by the Sixth and Fourteenth Amendments, was violated by her trial counsel’s request for a general verdict form instead of a special verdict form that would have required the jury to identify the specific means of committing rape upon which the guilty verdict was based. Wright contends that this action prejudiced her right to a fair trial because without a special verdict form it is impossible to determine which means of committing rape die jury found in convicting her. The State argues diat trial counsel was not ineffective for requesting a general verdict form and that Wright has failed to show prejudice.
When a district court holds a full evidentiary hearing on the issues raised in a K.S.A. 60-1507 motion, the court must issue findings of fact and conclusions of law concerning all the issues presented. Supreme Court Rule 183(j) (2011 Kan. Ct. R. Annot. 259). An appellate court reviews the district court’s findings of fact to determine whether they are supported by substantial competent evidence and are sufficient to support die district court’s conclusions of law. Appellate review of the district court’s conclusions of law is de novo. Bellamy v. State, 285 Kan. 346, 354-55, 172 P.3d 10 (2007).
To support a claim of ineffective assistance of counsel, the defendant must prove that (1) counsel’s performance was deficient, and (2) counsel’s deficient performance was sufficiently serious to prejudice the defense and deprive the defendant of a fair trial. Thompson v. State, 293 Kan. 704, 715, 270 P.3d 1089 (2011).
“ ‘The first prong of the test for ineffective assistance of counsel requires a defendant to show that counsel’s representation fell below an objective standard of reasonableness, considering all the circumstances. Judicial scrutiny of counsel’s performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate die distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. We must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. [Citation omitted.]
“ ‘Once a defendant has established counsel’s deficient performance, the defendant also must establish prejudice by showing that there is a reasonable prob ability that, but for counsel’s deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of tire evidence before the judge or jury.’ [Citations omitted.]” 293 Kan. at 715.
Here, the judge who presided over the hearing on Wright’s K.S.A. 60-1507 motion was the same judge who presided over her jury trial. Regarding trial counsel’s alleged ineffectiveness, the district court found that the law was clear at the time of trial that a special verdict form was not required in an alternative means case. Thus, the district court found that Jensen’s request for a general verdict form did not constitute deficient performance and that “Jensen faithfully and zealously represented his client and advocated her version of the case.”
At the K.S.A. 60-1507 hearing, when asked why he requested a general verdict form over a special verdict form, Jensen stated:
“I believe in general my thinking was that since I had taken the position that there was only one way it could have possibly occurred, according to the State’s theory, that the other two alternates simply weren’t supported by evidence. That it allowed my closing argument to, in effect, be more focused or consistent on that one issue.”
Our Supreme Court has stated:
“ ‘Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable, and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.’ [Citations omitted.] The burden is on a defendant to demonstrate that the alleged deficiencies were not the result of strategy. [Citations omitted.]” State v. Adams, 292 Kan. 151, 167-68, 254 P.3d 515 (2011).
On appeal, Wright does not explain why her trial counsel’s strategic choice to focus on what he thought was the only viable means to commit rape in this scenario constituted ineffective representation. Although our Supreme Court held in Wright’s direct appeal that there must be sufficient evidence to support a conviction under each alternative means presented to a jury, it does not necessarily follow that a special verdict form is required or that it is ineffective assistance of counsel to request a general verdict form. Wright does not cite any legal authority for the proposition that the use of a general verdict form in an alternative means case constitutes ineffective assistance of counsel. In fact, there is legal authority to the contrary. See State v. Boyd, 46 Kan. App. 2d 945, 948, 268 P.3d 1210 (2011) (“ ‘A general verdict of conviction is legally proper so long as the record contains sufficient evidence to support each means.’ [Citations omitted.]”), petition for rev. filed January 23, 2012; cross-petition for rev. filed February 6, 2012.
We agree with the district court that the trial counsel’s request for a general verdict form did not fall below an objective standard of reasonable representation. Because Wright has failed to meet the showing required under the first step of an ineffective assistance of counsel claim, there is no need to proceed to the second step and analyze prejudice. See State v. Bricker, 292 Kan. 239, 250, 252 P.3d 118 (2011) (stating that where defendant failed to show counsel’s performance was deficient, court need not consider prejudice prong). Accordingly, we conclude the district court did not err in denying Wright’s K.S.A. 60-1507 motion alleging ineffective assistance of trial counsel.
Ineffective Assistance of Appellate Counsel
Wright also argues that her constitutional right to effective assistance of counsel, as guaranteed by the Sixth and Fourteenth Amendments, was violated by her appellate counsel’s failure to argue that sexual intercourse with a person who does not consent under circumstances when the victim is overcome by force or fear constitutes alternative means of committing rape. She contends that force and fear are alternative means of committing rape and that there was no evidence that she used force to overcome J.L. Wright argues that had appellate counsel raised the issue, there is a reasonable probability that her conviction would have been reversed on direct appeal.
The State argues that Wright’s appellate counsel’s actions and arguments constituted effective assistance of counsel under the existing law at the time. The State also asserts that cáselaw that came into existence after Wright’s appeal is inapplicable, as an attorney is not required to foresee the future in order to provide objectively reasonable representation. Finally, the State argues that the failure to raise the issue on direct appeal was not prejudicial because the issue has been subsequently decided against Wright.
As stated in the first issue, when the district court conducts an evidentiary hearing on a K.S.A. 60-1507 motion, the appellate court reviews any factual findings for substantial competent evidence and evaluates whether those findings support the district court’s conclusions of law. The district court’s legal conclusions are reviewed de novo. Bellamy, 285 Kan. at 354-55.
To establish ineffective assistance of counsel on appeal, defendant must show (1) counsel’s performance, based upon the totality of the circumstances, was deficient in that it fell below an objective standard of reasonableness, and (2) the criminal defendant was prejudiced to the extent that there is a reasonable probability that, but for counsel’s deficient performance, the appeal would have been successful. State v. Smith, 278 Kan. 45, 51-52, 92 P.3d 1096 (2004). As in tire case of a claim of ineffective assistance of trial counsel, a claim of ineffective assistance of appellate counsel requires a party to establish both a performance prong and a prejudice prong in order to succeed on the claim.
As the district court noted, the relevant portion of the rape statute as it existed in 2004 defined rape as:
“(1) Sexual intercourse with a person who does not consent to the sexual intercourse, under any of the following circumstances:
(A) When the victim is overcome by force or fear;
(B) When the victim is unconscious or physically powerless; or
(C) When the victim is incapable of giving consent because of mental deficiency or disease, or when the victim is incapable of giving consent because of the effect of any alcoholic liquor, narcotic, drug or other substance, which condition was known by the offender or was reasonably apparent to the offender.” K.S.A. 2004 Supp. 21-3502(a)(l)'.
Regarding appellate counsel’s effectiveness, the district court examined the statute and found that the terms “force or fear” were listed in the same subsection and were grouped together while other alternative means such as “unconscious or physically powerless” were fisted in separate subsections. The district court noted that nearly everyone involved in the case treated force or fear as a single means of committing rape. Additionally, the district court noted that, at the time of Wright’s case and direct appeal, “alternative means law was far from crystal clear” and the tension between Timley and Dixon was not resolved. With such uncertainty in mind, the district court found “it [was] objectively reasonable for appellate counsel to have pursued a strategy which focused on trying to get Wright’s conviction reversed by resolving this caselaw conflict (which ultimately was a successful effort on clarification of the law, even though Wright’s conviction was upheld).”
As stated above, the first step in examining an ineffective assistance of counsel claim is determining whether, under the totality of the circumstances, the challenged conduct fell below an objective standard of reasonableness. Smith, 278 Kan. at 51-52. The United States Supreme Court has further stated that “a court deciding an actual ineffectiveness claim must judge tire reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.” Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Here, Wright argues that her appellate counsel was ineffective for failing to argue that force and fear are two distinct alternative means of committing rape. Wright argues that force and fear are alternative means of committing rape, asserting that case-law to the contrary is wrong. While this is a tempting path to follow, the question at this point is not whether force and fear constitute alternative means of committing rape—the question is whether, under the totality of the circumstances at the time of Wright’s appeal, her appellate counsel’s failure to argue this point was outside an objective standard of reasonableness.
Wright points out that her appellate counsel Davis testified that she should have raised the issue that force and fear are alternative means of committing rape, that it was a meritorious issue, and that she failed to raise the issue simply because she did not think of it, not for strategic reasons. As the State counters, however, in reviewing a claim of ineffective assistance of counsel, the courts apply an objective standard. See Smith, 278 Kan. at 51-52. Thus, Davis’ subjective beliefs are not controlling.
In light of the circumstances existing at the time of Wright’s appeal and given the treatment of force or fear as a single means of committing1 rape by nearly everyone involved in the case, we agree with tho district court that Wright has not overcome the strong presumption that her counsel’s conduct “ '[fell] within the wide range of reasonable professional assistance.’ ” See Thompson, 293 Kan. at 715. The district court’s finding that counsel’s performance did not fall below an objective standard of reasonableness is supported by substantial competent evidence. Although we could end our analysis here because Wright has failed to meet the first prong of the test for ineffective assistance of appellate counsel, we also will examine whether Wright is able to establish prejudice as a result of her appellate counsel’s performance. To determine whether Wright was prejudiced as a result of her appellate counsel’s performance, we must resolve the legal issue of whether rape committed under circumstances when the victim is overcome by force or fear is, in fact, a single means or alternative means of committing the crime.
Wright contends that had her appellate counsel argued that force and fear are separate alternative means of committing rape, there is a reasonable probability that her conviction would have been reversed on direct appeal. At the time of Wright’s direct appeal, Timley was the only Kansas appellate case that directly addressed the issue of whether force and fear are separate alternative means of committing rape. The Timley court clearly treated force and fear as separate alternative means of committing rape, but the court concluded there was sufficient evidence of bodi means to uphold the defendant’s conviction in that case. 255 Kan. at 290.
In Wright’s direct appeal, the Kansas Supreme Court analyzed the Timley decision and reiterated its conclusion that force and fear are separate alternative means of committing rape, requiring sufficient evidence of both means to uphold a conviction. Wright, 290 Kan. at 203. The Wright court stated:
“The [Timley] court then held that there was sufficient evidence to convict Timley of rape and aggravated criminal sodomy either by force or by fear; thus ‘there was no error in including both alternative means in one instruction to the jury.’ [Citation omitted.] The indispensable component in the court’s holding was ‘super-sufficiency’ of evidence, i.e., proof adequate to persuade a rational fact-finder of Timley’s guilty on rape by fear and rape by force. See Beier, 44 Washburn L.J. at 283, 294, 296-99 (discussing ‘super-sufficiency’). If evidence had been lacking on either means alleged, Timley’s rape conviction would have been reversed.” (Emphasis added.) Wright, 290 Kan. at 203.
Based on this discussion, it appears that the Wright court was reaffirming Timley’s analysis that force and fear arc separate alternative means of committing rape. But Wright did not argue in her direct appeal that force and fear were separate alternative means of committing rape. Instead, she argued that the alternative means of committing rape were when the victim (a) was overcome by force or fear, or (b) was unconscious or physically powerless. See 290 Kan. at 199-200. Wright conceded there was sufficient evidence that the victim in her case was unconscious or physically powerless. Her only argument on appeal was that there was insufficient evidence to establish that the victim was overcome by force or fear. In addressing Wright’s argument, our Supreme Court stated:
“The evidence in this case was sufficient to find Wright guilty beyond a reasonable doubt of committing rape by force or fear. J.L. testified that she woke to the realization that Wright was digitally penetrating her vagina and was paralyzed with fear. Under [State v. Bunyard, 281 Kan. 392, 133 P.3d 14 (2006)], it does not matter that the initial penetration by Wright may not have been temporarily coincidental with J.L.’s fear; it is enough drat the penetration and fear were eventually contemporaneous. There is no error under the Tiinley alternative means rule here, because the evidence of each means of committing rape—by force or fear or by unconsciousness—was sufficient to uphold a guilty verdict on the rape charge.” 290 Kan. at 206-07.
This final paragraph of the Supreme Court’s analysis in Wright seems to support the proposition that sexual intercourse committed when the victim is overcome by force or fear is- a single means of committing rape. But it is important to note that Wright did not argue to the Supreme Court that force and fear were separate alternative means of committing rape. Thus, the Supreme Court’s analysis in Wright must be limited in scope to the argument the defendant made to the court. Because Wright did not argue in her direct appeal that force and fear are separate alternative means of committing rape, we are unable conclude that this specific issue was definitively resolved by the Supreme Court’s decision in Wright.
Subsequent to Wright, the Court of Appeals has held that force and fear are not separate alternative means of committing rape. In State v. Brooks, 46 Kan. App. 2d 601, 610, 265 P.3d 1175 (2011), rev. granted 294 Kan. 944 (2012), this court “accepted] the rationale and outcome of Wright as authoritative precedent for the proposition that ‘force or fear’ is a single, unified means of committing rape.” In reaching this conclusion, this court dismissed the treatment of force and fear as separate alternative means in Timley as “unstudied dicta.” 46 Kan. App. 2d at 611.
Our Supreme Court recently published its opinion in State v. Brown, 295 Kan. 181, 284 P.3d 977 (2012), which clarified the test for determining whether a statute creates alternative means of committing a crime. In Brown, our Supreme Court stated that in deciding whether a statute creates alternative means of committing a crime, courts should apply traditional rules of statutory construction to determine legislative intent. See 295 Kan. at 193-94. Our Supreme Court further explained:
“In- examining legislative intent, a court must determine for each statute what the legislature’s use-of a disjunctive .‘or’ is.intended to accomplish. Is it to list alternative distinct, material elements of a crime—that is, the necessary mens rea, actus reus, and, in some statutes, a causation element? Or is it to merely describe a material element or a factual circumstance that would prove the crime? The listing of alternative distinct, material elements, when incorporated into an elements instruction, creates an alternative means issue demanding super-sufficiency of the evidence. But merely describing a material element or a factual circumstance that would prove tire crime does not create alternative means, even if the description is included in a jury instruction. [Citations omitted.]” 295 Kan. at 194.
The Brown court emphasized a critical distinction between alternative means and what the Washington courts have termed “means within a means” and the Kansas Supreme Court labeled “options within a means.” Brown, 295 Kan. at 196-98. The Washington Supreme Court has stated that “a legislature will signal its intent to state alternative means through structure, separating alternatives into distinct subsections of the same statute. [Citation omitted.] Such structure is an important clue to legislative intent.” 295 Kan. at 196. In the rape statute relevant to Wright’s case, the language “[w]hen tire victim is overcome by force or fear” is listed in a different subsection of the statute than “[w]hen the victim is unconscious or physically powerless,” or “[w]hen the victim is incapable of giving consent [for other various reasons].” K.S.A. 2004 Supp. 21-3502(a)(l)(A), (B), (C). These structural divisions support the conclusion that the language “[w]hen the victim is overcome by force or fear” constitutes one means of committing rape, whereas the other subsections constitute alternative means of committing the crime.
The Brown court went on to say, however, that
“[r]egardless of such subsection design, ... a legislature may list additional alternatives or options within one alternative means of committing the crime. But these options within an alternative do not constitute further alternative means themselves if they do not state additional and distinct ways of committing die crime, that is, if diey do not require proof of at least one additional and distinct material element. Rather diey are only options witiiin a means if. . . their role is merely to describe a material element or to describe the factual circumstances in which a material element may be proven. [Citation omitted.]” 295 Kan. at 196-97.
In Brotan, the statutory language defining aggravated indecent liberties with a child stated in one subsection that the crime was committed by “any lewd fondling or touching of either a child who is under 14 years of age or the offender 'done or submitted to with the intent to arouse or satisfy the sexual desires of either the child or the offender, or both.’ ” 295 Kan. at 201. Brown argued that the language “either the child or the offender, or both” created alternative means of committing the crime, but the Supreme Court found that tire language created options within a means instead. 295 Kan. at 201-02. According to the court, the language “is merely descriptive of the types of factual circumstances that may prove the distinct, material element of intent to arouse or satisfy sexual desires, that is, the mens rea required for commission of the offense.” 295 Kan. at 201; see also State v. Burns, 295 Kan. 951, 962-64, 287 P.3d 261 (2012) (finding options within a means in tire statutory language defining sodomy); State v. Rojas-Marceleno, 295 Kan. 525, 546-48, 285 P.3d 361 (2012) (finding options within a means in the language defining indecent liberties with a child).
Likewise, the statutory language “[wjhen a victim is overcome by force or fear” does not present two alternative means of committing rape; rather, the language describes options within a means. As in Brown, the language is merely descriptive of the types of factual circumstances that may prove a distinct, material element of committing the crime. See Brown, 295 Kan. at 201. In other words, force and fear are options of overcoming the victim’s will, which constitutes a single material element of committing rape. Considering the evidence presented at Wright’s trial, her conviction could be affirmed based on the evidence that the victim did not consent to the sexual intercourse and was overcome by fear, even if the State presented insufficient evidence to show force.
Based on tire analysis of Broum and its progeny, we conclude as a matter of law that sexual intercourse with a person who does not consent under circumstances when the victim is overcome by force or fear, in violation of K.S.A. 21-3502(a)(l)(A), is a single, unified means of committing rape. The statutory language “[wjhen a victim is overcome by force or fear” describes options within a means of committing rape. Thus, even if the performance of Wright’s appellate counsel was somehow deficient for failing to raise this issue in the direct appeal, Wright cannot show how she was prejudiced as a result of her counsel’s performance. Accordingly, we conclude the district court did not err in denying Wright’s K.S.A. 60-1507 motion alleging ineffective assistance of appellate counsel.
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Buser, J.:
Rudy Delarosa appeals from his conviction by a juiy of possession of marijuana and/or its primary active ingredient tet-rahydrocannabinol (THC). We affirm the conviction.
Factual and Procedural Background
At about 9:30 in the evening on June 4,2009, Garden City Police Officer Clint Brock was on patrol with Officer Jason Chase in Garden City, Kansas. The officers drove to the 200 block of Washington Street to serve a curfew citation. Upon their arrival, the officers walked through an alleyway toward the residence where they intended to serve the citation. Each officer was dressed in his “street gang unit uniform” with pistol, flashlight, and taser.
As Officer Brock walked toward the residence, he was observed by a man standing at the end of the alleyway. The man began to whistle. Officer Brock ran towards the end of the alleyway, around a building, and onto Washington Street. There, the officer saw seven or eight people standing around a blue vehicle. The area was known for gang activity and illegal narcotics.
As Officer Brock approached the group, he observed something suspicious—Delarosa “tossed something behind him into the grass.” In particular, Officer Brock testified that Delarosa was looking at him when “[h]e turned to the side and tossed an object behind him.” The item landed about 2 to 5 feet behind Delarosa. The officer asked Delarosa what he had just thrown, and Delarosa responded, “A roach.” According to Officer Brock, the term “roach” means “the last little bit of a marijuana cigarette that they re not able to, I guess, ingest without burning themselves or— swallowing. A very small bit of marijuana.” (Emphasis added.) Later that evening, Delarosa told Officer Burke that “earlier” he had “smoked marijuana, but that he didn’t have any on him.”
Officer E. J. Ochs arrived at the scene, and Officer Brock asked him to search the grassy area where Delarosa had thrown the “roach.” During his search of that area Officer Ochs discovered a blue metallic pipe. According to Officer Brock, this type of pipe is “commonly used for smoking marijuana.” At the scene, no one claimed ownership of the pipe. Of note, the vehicle Delarosa was standing beside at the time he encountered Officer Brock contained a plastic baggy of marijuana.
Delarosa was charged with possession of “a hallucinogenic drug . . . Marijuana and/or its active ingredient Tetrahydrocannabinol, a Schedule I drug as listed in K.S.A. 65-4105(d)(16) and (24),” and possession of drug paraphernalia, a class A nonperson misdemeanor.
Delarosa’s case proceeded to a trial by juiy. At trial, Harold Riddle, a chemist with the Kansas Bureau of Investigation (KBI), testified that he conducted several forensic tests on the blue metallic pipe recovered by Officer Ochs. According to Riddle, he performed these tests “looking for components of marijuana, and specifically tetrahydrocannabinol.” As a result of tire testing, Riddle “detected tetrahydrocannabinol, or THC, which is the active ingredient of marijuana, in the residues [sic] of the pipe.” In Riddle’s opinion, the metal pipe tested positive for THC.
The jury found Delarosa guilty of possession of marijuana and/ or its active ingredient THC. Delarosa was found not guilty, however, of possession of drug paraphernalia. He was sentenced to 14 months’ imprisonment but granted a 12-month probation.
Delarosa appeals.
Sufficiency of the Evidence
For his first issue on appeal, Delarosa contends: “The testimony at trial proved only possession of THC and not marijuana; thus, there was insufficient evidence to sustain Mr. Delarosa’s conviction.”
“ ‘ “'When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” ’ [Citation omitted.]” State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).
On appeal, Delarosa cites the expert testimony of Riddle that THC was, in fact, found in the pipe: “[T]he chemist testified only that he tested for and found THC.” We agree that this expert testimony was direct evidence sufficient to prove the State’s claim that Delarosa possessed THC.
The question tiren becomes: Was there sufficient evidence produced at trial to prove that Delarosa possessed marijuana? Dela-rosa responds in the negative, arguing that Riddle “did not testify that he tested for or found marijuana.” The crux of Delarosa’s argument is that the jury “could not have found the defendant guilty of possession of marijuana, because there was absolutely no evidence presented at trial to prove that Mr. Delarosa possessed marijuana.”
Contrary to Delarosa’s argument, whether Riddle specifically testified that he tested the pipe for marijuana is not determinative of this question on appeal. In considering the sufficiency of proof of a conviction, we consider all the evidence, both direct and circumstantial. Moreover, “[a] conviction of even tire gravest offense ‘ “can be based entirely on circumstantial evidence and the inferences fairly deducible therefrom.” ’ [Citation omitted.]” McCaslin, 291 Kan. at 710. As a result, we have carefully reviewed the entire trial record to ascertain whether sufficient evidence existed to prove that Delarosa possessed marijuana.
At trial, Riddle testified as follows:
“On [tire blue metallic pipe], tlie tests which I performed were to first take an extract of the residues [sic] in the pipe by using a solvent, in this case petroleum ether. And tiren tire extract, it was actually divided into three different samples for three separate tests. I performed a thin-layer chromatography test, a Du-quenois-Levine, or a color test, and then also a gas chromatography mass spectrometry test, all looking for components of marijuana, and specifically tetrahy-drocannabinol.”
Riddle also testified that he “detected tetrahydrocannabinol, or THC, which is the active ingredient of marijuana, in the residues [sic] of the pipe.” Thus, the uncontroverted expert testimony established that the THC found in the pipe’s residue was a “component” or “ingredient” of marijuana. This expert testimony established die intrinsic relationship between THC and marijuana—that THC is one of the primary active ingredients of marijuana.
The State emphasizes this analysis on appeal: “As THC is a component/active ingredient of marijuana, a jury could have reasonably inferred that Delarosa possessed marijuana based on any evidence that he possessed a pipe with THC [residue].” This is essentially the same point the State made to the jury in closing argument:
“As to tire first point, that the defendant possessed marijuana. Remember, again, you heard the testimony of a KBI chemist, who said that he had tested this item using scientifically valid tests, and detected THC, which is the active ingredient in marijuana. I think that we can say that that evidence alone establishes beyond a reasonable doubt that there was marijuana in the pipe.”
Of course, Riddle’s expert testimony was only part of the proof of Delarosa’s possession of marijuana. As detailed earlier, the jury was also informed: (1) Delarosa, upon seeing Officer Brock in uniform, tossed an item—apparently the pipe—on the ground; (2) the pipe seized was identified as “commonly used for smoking marijuana”; (3) when specifically asked, Delarosa identified the thrown item as a “roach”; (4) the term “roach” relates to “[a] veiy small bit of marijuana”; (5) Delarosa admitted (after tossing the “roach”) that earlier he had “smoked marijuana, but that he didn’t have any on him”; (6) the vehicle Delarosa was standing beside at the time he initially was confronted by Officer Brock contained a plastic baggy of marijuana; and (7) the area where the vehicle and Dela-rosa was found was known for gang activity and illegal narcotics.
Given the totality of the expert and lay testimony (including both direct and circumstantial evidence) produced at trial, we are convinced that, “ ‘ “viewed in the light most favorable to the prosecution,” ’ ” a rational jury could have found Delarosa guilty beyond a reasonable doubt of possession of the marijuana contained in the pipe. See McCaslin, 291 Kan. at 710.
Alternative Means
For his second and related claim of error, Delarosa contends his “right to a unanimous jury verdict was violated because the State alleged, in a single count of the complaint, that the crime could be committed by alternative means—by possessing marijuana, or by possessing THC—and there was not substantial evidence to support possession of marijuana.” Jury unanimity is statutorily required in Kansas. K.S.A. 22-3421; State v. Wright, 290 Kan. 194, 201, 224 P.3d 1159 (2010).
Delarosa’s argument is predicated on the alternative means rule established by our Supreme Court in State v. Timley, 255 Kan. 286, 875 P.2d 242 (1994). Timley established: “ ‘[Wjhere a single offense may be committed in more than one way, there must be juiy unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to tire means by which the crime was committed so long as substantial evidence supports each alternative means.’ ” 255 Kan. at 289 (quoting State v. Kitchen, 110 Wash. 2d 403, 410, 756 P.2d 105 [1988]). In reviewing an alternative means case, an appellate court must determine if a. rational trier of fact could have found each means of committing the crime proven beyond a reasonable doubt. Wright, 290 Kan. at 202.
For purposes of Delarosa’s argument, it is unnecessary to address whether,, in fact, the crime of possession of marijuana and/ or its primary active ingredient THC is an alternative means crime. This is because, as detailed earlier, our review of the trial record convinces us that substantial evidence supports both possession of marijuana and THC. As a result, assuming without deciding that Delarosa has properly identified an alternative means crime, there is no danger of a less than unanimous verdict. Both means that Delarosa allege—possession of marijuana and .possession of THC—were proven by substantial evidence such that a rational trier of fact could have found each purported means of committing the crime proven beyond a reasonable doubt. See Wright, 290 Kan. at 202.
Finally, our dissenting colleague would reverse and remand the conviction because the criminal charge is duplicitous. Our colleague conducts this appellate review and arrives at this judgment while candidly admitting that “neither party addresses tire problem with the complaint/information and jury verdict form.” State v. Delarosa, No. 105,534, slip op. at 9 (Green, J., dissenting). Indeed, in the district court, Delarosa never raised a duplicity challenge and, as a result, the State was not provided an occasion to address this claimed error. Of course, because of Delarosa’s failure to complain at trial, the district court never had the opportunity to review the issue, rule on it, and remedy any infirmity. Moreover, on appeal Delarosa is not heard to complain of duplicitous charging, and the State was not alerted to the need to brief the matter.
Two long-standing rules of law underscore that an appellate court should resist die temptation to, sua sponte, seek out and discover error when that purported error is not presented to the appellate court. First, issues not raised before the trial court generally may not be raised on appeal. State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008). Second, an issue not briefed by the appellant is deemed waived or abandoned on appeal. State v. Martin, 285 Kan. 994, 998, 179 P.3d 457, cert. denied 555 U.S. 880 (2008). As Justice Allegrucci once wrote for a majority of our Supreme Court: “We refrain from basing our decision on grounds not addressed by the lower courts or the parties, where the countervailing arguments have not been made and certainly have not been considered.” State v. Ibarra, 282 Kan. 530, 544, 147 P.3d 842 (2006). Accordingly, whetiier die charging document was duplicitous is not properly before us for review and decision.
Affirmed.
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Malone, J.:
The Sedgwick County, Kansas, Board of Zoning Appeals (Board) appeals the district court’s decision vacating the Board’s grant of three zoning variances to Norman and Leatha Hein related to their lawn care business operated from their rural home. The Board argues that Larry Hacker, Terry Hacker, Richard Gronniger, and Kansas Paving Company, who are the owners and lessees of real property adjacent to the Heins’ property, lacked standing to appeal the Board’s grant of the zoning variances to the district court, and that therefore the district court lacked jurisdiction to rule on the matter. The Board also argues that the district court erroneously determined that strict application of the zoning regulations would not constitute an unnecessary hardship, as required under K.S.A. 12-759(e)(l)(C), because the hardship was imposed by the Heins’ self-created business growth. We conclude that under the facts of this case, the neighboring landowners had standing under K.S.A. 12-759(f) to appeal the Board’s grant of the zoning variances. We also conclude as a matter of law that self-created business growth is not an exception to the general rule that unnecessary hardship may not be self-created. Accordingly, we affirm the district court’s judgment vacating the zoning variances.
The Heins have operated a lawn care business from their rural home for over 30 years. The business is located on a portion of their 75-acre tract of land on West 73rd Street North in Sedgwick County, Kansas. The property is zoned RR Rural Residential. In 1990, the Heins petitioned for and were granted two zoning variances by the Board: (1) to allow the business to operate within 220 feet of a nearby residence; and (2) to allow up to four employees on the property at any given time. In granting the second variance, tire Board noted that the business was primarily conducted off site and that the employees would only be at the property for a limited amount of time in order to maintain and transport the lawn care equipment, which was stored at the property. The Heins later explained that although they employed 19 people at that time, most employees reported directly to the job sites and did not need to go to the property.
In 2010, the Heins filed a petition with the Board for three variances: (1) to allow up to 20 employees with no more than 15 on site in excess of 1 hour per day; (2) to allow the use for business purposes of existing outbuildings with a combined floor area exceeding 3,000 square feet; and (3) to allow outdoor storage closer to the street than the buildings used for tire business and closer than 200 feet from property lines. In their petition, the Heins alleged that new variances were necessaiy because they had “obtained additional customers and changed the way their employees work.” Specifically, the Heins stated that more equipment was stored at the property and employees now met at the property and rode together to job sites. The Heins further stated that, as part of their commitment to keeping their full-time employees at work even during inclement weather, the new variances were necessaiy to permit employees to perform occasional yard work and equipment maintenance at the property.
Board staff prepared a report on the Heins’ petition. Staff considered each of the five criteria under K.S.A. 12-759(e)(l) that must be met before the Board may grant a variance. Staff recommended that the Board deny the first variance, finding that the increased number of employees would violate four of the five criteria. In particular, staff found that strict application of the zoning regulations would not constitute an unnecessary hardship under K.S.A. 12-759(e)(l)(C) because tire hardship was imposed by the Heins’ self-created business growth. Staff recommended that the other two variances be granted subject to certain conditions.
On October 12, 2010, the Board held a meeting at which the Heins’ petition was considered. After receiving staff s report, tire Board heard comments on tire matter. Norman Hein explained that the reason for requesting the first variance, to increase the number of employees allowed on the property, was that the business now needed six drivers to transport the lawn care equipment as opposed to the four drivers needed in 1990. Furthermore, the variance would allow employees to gather at the property and catch rides to the job sites and would account for the occasional situation in which employees performed yard work and equipment maintenance at the property. Several of Heins’ neighbors and customers spoke in support of the petition for variances.
But Richard Gronniger, who owns the property just south of the Heins across West 73rd Street North, and Terry Hacker, who operates Kansas Paving, a sand pit on Gronniger’s property, spoke in opposition to the Heins’ petition. They argued that the requested variances were tantamount to rezoning and that since Gronniger and Kansas Paving were paying for road maintenance in relation to the conditional use permit to operate the sand pit, the Heins should also be required to seek a conditional use permit and contribute to road maintenance costs. Hacker stated that Kansas Paving spends about $15,000 per year on road maintenance costs. He believed that because the Heins’ business constituted about one-third of the traffic on West 73rd Street North, the Heins should contribute about $5,000 per year for road maintenance costs.
The Board found that all five criteria under K.S.A. 12-759(e)(l) had been met for each variance and granted all three requested variances subject to certain conditions. On November 10, 2010, Larry Hacker, Terry Hacker, Richard Gronniger, and Kansas Paving (plaintiffs) filed a petition in the district court under K.S.A. 12-759(f) and K.S.A. 12-760 challenging the reasonableness of the Board’s decision. They argued that the decision was not supported by substantial evidence and requested either that the variances be vacated as unreasonable or that the matter be remanded to the Board for further findings.
On April 14, 2011, the district court held a bench trial based on stipulated facts. Based on the evidence presented, the district court rejected the plaintiffs’ argument that the Heins were required to seek a conditional use permit rather than zoning variances. The district court further found that the requested variances were properly classified as area variances (as opposed to use variances) and as such, the Board had the authority to grant those variances if all five criteria under K.S.A. 12-759(e)(l) were supported by substantial evidence. Although the district court was satisfied that four of the five criteria were supported by substantial evidence, the court found that the Board had failed to adequately address whether strict application of the zoning regulations constituted an unnec-essaiy hardship as required by K.S.A. 12-759(e)(l)(C). The district court remanded the case to the Board to specifically address whether the hardship was self-created.
On remand, the Board found that the hardship was not self-created. The Board reasoned that the Heins had a vested property right in their business and that reasonable growth of an existing business was not a self-created hardship under Kansas caselaw. In light of the Board’s findings, the parties submitted supplemental briefs to the district court. On October 28, 2011, the district court concluded the bench trial. The district court found that all three requested variances were the result of the Heins’ business growth and that the business growth was the result of the Heins’ conscious effort to increase their customer base. Furthermore, the district court found that the Heins grew their business with full knowledge of the zoning regulations under which they were operating. The district court rejected the Board’s interpretation of Kansas caselaw and found that self-created business growth was not a reasonable basis for granting an area variance under K.S.A. 12-759(e)(l). The district court reasoned that it would be poor precedent to allow an area variance due to self-created business growth because there would be virtually no limitations on the granting of such variances. The district court determined that the Board’s findings were based on an incorrect interpretation of the law and were not supported by substantial evidence. Accordingly, the district court vacated the Board’s grant of the three variances. The Board timely appealed the district court’s judgment.
On appeal, the Board first argues that the plaintiffs lacked standing to appeal the Board’s grant of the zoning variances to the district court, and that therefore the district court lacked jurisdiction to rule on the matter. Although tire Board did not challenge the plaintiffs’ standing in district court, the Board asserts that standing is a component of subject matter jurisdiction, which maybe raised for the first time on appeal. As to the merits of the district court’s ruling, the Board argues on appeal that there was substantial competent evidence to support the Board’s finding that the hardship was not self-created by the Heins, and that the Board correctly interpreted and applied Kansas law. Thus, the Board argues that the district court erred in vacating the three variances.
Standing and Jurisdiction
The Board argues that the plaintiffs lacked standing to appeal the- Board’s decision to the district court and that therefore the district court lacked jurisdiction to rule on the matter. The Board contends that the only available avenue for the plaintiffs to appeal was under K.S.A. 12-759(f), which permits appeals to the district court by any person “dissatisfied with” the decision of a board of zoning appeals. The Board urges this court to interpret “dissatisfied with” as used in K.S.A. 12-759(f) to confer standing only on some narrower class of persons, e.g., original parties to proceedings before a board of zoning appeals, than tire class of persons “aggrieved by” the zoning decision of a city or county who are permitted to appeal to the district court under K.S.A. 12-760. The Board concludes that the plaintiffs had no legitimate, particularized interest that was impacted by the Board’s decision sufficient to confer standing under either the established “aggrieved by” standing test of K.S.A. 12-760 or the allegedly narrower “dissatisfied with” standing test of K.S.A. 12-759(f).
The plaintiffs argue that they could appeal under both K.S.A. 12-759(f) as persons “dissatisfied with” the Board’s decision and under K.S.A. 12-760 as persons “aggrieved by” the Board’s deci sion. They contend that the standing requirement of K.S.A. 12-759(f) should not be construed in the manner urged by the Board, i.e., as conferring standing only on original parties to proceedings before a board of zoning appeals, because such a limitation would effectively prevent neighbors from appealing decisions that adversely impact their interests. The plaintiffs instead suggest that this court adopt a broader standing test for K.S.A. 12-759(f) that would confer standing on any interested person who submitted written comments and/or made oral comments at a board of zoning appeals hearing. The plaintiffs conclude that they had particularized interests—namely, increased traffic and increased maintenance costs for West 73rd Street North-—-to confer standing under the established “aggrieved by” standing test of K.S.A. 12-760 and that they also sufficiently participated in proceedings before the Board to confer standing under their suggested “dissatisfied with” standing test of K.S.A. 12-759(f).
Standing is a component of subject matter jurisdiction, which may be raised for the first time on appeal. State v. Ernesti, 291 Kan. 54, 60, 239 P.3d 40 (2010). Whether standing exists is a question of law subject to unlimited review. State v. Gilbert, 292 Kan. 428, 431-32, 254 P.3d 1271 (2011). Resolution of this issue also requires this court to interpret K.S.A. 12-759 and K.S.A. 12-760. Interpretation of a statute is a question of law over which an appellate court has unlimited review. Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009).
The Kansas Legislature has enabled cities and counties to enact planning and zoning laws for the protection of public health, safety, and welfare. K.S.A. 12-741 et seq. K.S.A. 12-759 provides that when a city or county has enacted zoning ordinances or regulations, it must also create a board of zoning appeals. The statute describes the organization and administration of such boards and sets out the various matters a board may hear and decide. Finally, subsection (f) permits certain interested persons to appeal a board’s decision to the district court:
“Any person, official or governmental agency dissatisfied totth any order or determination of tire board may bring an action in the district court of the county to determine tire reasonableness of any such order or determination. Such appeal shall be filed within 30 days of the final decision of the board.” (Emphasis added.)
K.S.A. 12-760 provides in part: “(a) Within 30 days of the final decision of the city or county, any person aggrieved thereby may maintain an action in the district court of the county to determine the reasonableness of such final decision.” (Emphasis added.) The plaintiffs argue that they could appeal from the Board’s decision under both K.S.A. 12-759(f) and K.S.A. 12-760. But a specific statute controls over a general statute. In re K.M.H., 285 Kan. 53, 82, 169 P.3d 1025 (2007), cert. denied 555 U.S. 937 (2008). K.S.A. 12-759(f), which applies only to decisions made by a board of zoning appeals, is more specific than K.S.A. 12-760, which on its face applies to any final planning or zoning decision made by a city or county. Because the specific statute controls, we conclude that the legislature intended for appeals from a board of zoning appeals to be governed solely by K.S.A. 12-759(f).
Given that the plaintiffs’ only available avenue of appeal was under K.S.A. 12-759(f), we must determine whether plaintiffs had standing under that statute to appeal to the district court. Although the parties argue at length about whether and how “dissatisfied with” under K.S.A. 12-759(f) should be differently interpreted from “aggrieved by” under K.S.A. 12-760, neither party cites any controlling authority to support their respective interpretations. Under the plain meaning of the statutory language, any person “dissatisfied with” a board of zoning appeals’ decision covers a broader group than any person “aggrieved by” a decision of the board. A person can be “dissatisfied with” a board of zoning appeals’ decision even if that person’s pecuniary interest was not adversely affected by the decision. But it would make no sense to allow any person to appeal a board of zoning appeals decision to the district court unless the decision somehow adversely affected the person’s pecuniary interest.
In the absence of any obvious reason or persuasive authority suggesting that the class of persons who have standing to appeal a board of zoning appeals’ decision under K.S.A. 12-759(f) should be any more or less restricted than the class of persons who have standing to challenge any other zoning decision by a city or county under K.S.A. 12-760, it is reasonable to apply the same standing test under both statutes. Thus, we construe the “dissatisfied with” standard under K.S.A. 12~759(f) to mean the same as the “aggrieved by” standard under K.S.A. 12-760.
This court has previously articulated a test for whether a person has standing to appeal to the district court under the “aggrieved by” standard set forth in K.S.A. 12-760. In Tri-County Concerned Citizens, Inc. v. Board of Harper County Comm'rs, 32 Kan. App. 2d 1168, 95 P.3d 1012, rev. denied 278 Kan. 852 (2004), the plaintiffs, a concerned citizens group along with individual petitioners, brought an action under K.S.A. 12-760 challenging the county’s grant of a special use permit to a waste disposal company to build a sanitary landfill. The district court set aside the special use permit, and the waste disposal company appealed to this court. The waste disposal company argued that the plaintiffs lacked standing to challenge the county’s decision under K.S.A. 12-760. This court applied the following test to determine whether the plaintiffs had standing to appeal the county’s decision to issue the special use permit:
“ ‘Any person aggrieved’ as contained in K.S.A. 12-760, means a person who suffers a substantial grievance, a denial of some personal or property right, or the imposition of some burden or obligation. It does not refer to persons who may happen to entertain desires on the subject but only to those who have rights which may be enforced at law and whose pecuniary interest may be affected.” 32 Kan. App. 2d 1168, Syl. ¶ 2.
This court found that, under the above definition, the plaintiffs were “aggrieved” and thus had standing to sue. The court noted that the plaintiffs lived within 1,000 feet of the proposed landfill and would potentially suffer substantial grievance and a loss of pecuniary interest not shared by the general public. 32 Kan. App. 2d at 1174-75.
Adopting and applying the Tri-County standing test in this case, we find'that the plaintiffs have-alleged a substantial grievance and impact on a pecuniary interest sufficient to confer standing. The plaintiffs are the owners, lessees, and occupiers of real property just south of the Heins across West 73rd Street North. As part of the plaintiffs’ conditional use permit to operate a sand pit on the property, they are required to treat and maintain a portion of West 73rd Street North. Increased traffic on that street, which is a likely result of the requested variances, would directly impact the plaintiffs’ road maintenance costs. We conclude that the plaintiffs have a substantial grievance and pecuniary interest related to road maintenance, not shared by members of the general public, and thus have standing under K.S.A. 12-759(f) to challenge the Board’s decision.
Unnecessary Hardship
As to the merits of the district court’s ruling, the Board argues that it had the authority to grant the requested variances because all five statutory criteria under K.S.A; 12-759(e)(l) were supported by substantial evidence. In particular, the Board argues that an unnecessary hardship under K.S.A. 12-759(e)(l)(C) may be found where the hardship is imposed by self-created business growth. The Board urges this court to take a less restrictive view of unnecessary hardship in light of modern trends in zoning law which give more consideration to the constitutional right to enjoy property. The plaintiffs argue that hardship imposed by self-created business growth cannot constitute an unnecessary hardship under K.S.A. 12-759(e)(1)(C) and thus the Board’s grant of the variances was not supported by substantial evidence and was not within the Board’s authority.
The district court’s scope of review of a board of zoning appeals’ decision to grant a variance is restricted to considering whether, as a matter of law: (a) the board of zoning appeals acted fraudulently, arbitrarily, or capriciously; (b) the board’s decision is substantially supported by the evidence; and (c) the board’s action was within the scope of its authority. The second two factors flow together, because in determining whether a.decision was within the Board’s authority, the district court must determine whether there-is substantial evidence to support the findings required to grant the variance. On appeal, this court applies the same scope of review as the district court. City of Olathe v. Board of Zoning Appeals, 10 Kan. App. 2d 218, 222-23, 696 P.2d 409 (1985). To the extent that resolution of this issue requires this court to interpret the criteria for granting an area variance under K.S.A. 12-759(e)(l), our review is unlimited. Unruh, 289 Kan. at 1193.
Kansas law contemplates two types of variances: (1) use variances, which permit a use of land other than that prescribed by the zoning regulations and inconsistent with uses in the surrounding area; and (2) area variances, which have no relation to change of use, but allow for modifications of area, yard, height, floor space, frontage, density, setback, and similar restrictions. City of Merriam v. Board of Zoning Appeals, 242 Kan. 532, 537, 748 P.2d 883 (1988). Under K.S.A. 12-759(e)(l), a board of zoning appeals is authorized to grant an area variance only if all five statutory criteria are met. Those criteria do not apply to use variances, which are permitted under K.S.A. 12-759(e)(2) only if specifically authorized by the applicable zoning regulation. See 242 Kan. at 537-38 (construing identical language in predecessor statute). Here, die district court found that all three variances were area variances, a finding which none of the parties contest.
The only criteria for granting an area variance at issue here is the “unnecessary hardship” criteria set forth in K.S.A. 12-759(e)(1)(C). K.S.A. 12-759 states in part:
“(e) When deemed necessary by the board of zoning appeals, tire board may grant variances and exceptions from the zoning regulations on the basis and in the manner hereinafter provided: (1) To authorize in specific cases a variance from the specific terms of the regulations which will not be contrary to the public interest and where, due to special conditions, a literal enforcement of the provisions of the regulations, in an individual case, results in unnecessary hardship, and provided that the spirit of the regulations shall be observed, public safety and welfare secured, and substantial justice done. Such variance shall not permit any use not permitted by the zoning regulations in such district. A request for a variance may be granted in such case, upon a finding by the board that all of the following conditions have been met: . . . (C) that the strict application of the provisions of the zoning regulations of which variance is requested will constitute an unnecessary hardship upon the property owner represented in the application.”
Several Kansas cases construe the meaning of “unnecessary hardship” under predecessor statutes to K.S.A. 12-759(e)(1). In Stice v. Gribben-Allen Motors, Inc., 216 Kan. 744, 534 P.2d 1267 (1975), the plaintiffs, who were homeowners in a zoned residential area, challenged the board of zoning appeals’ grant of a variance to allow the defendant to build a car dealership in the neighborhood. The defendant had purchased the tract of land in June 1970 after the county had formally determined to zone the area but before the effective date of the zoning regulations. In 1973, after the defendant’s rezoning petition was denied by the county planning commission, tire defendant applied for a variance from the county board of zoning appeals. The board approved the petition and issued a building permit for the car dealership but shortly thereafter rescinded its order. The defendant ignored the rescission order and began construction on the car dealership. The plaintiffs challenged the grant of the variance, but the district court upheld the board’s original order.
On appeal, our Supreme Court considered whether there was substantial evidence to support the board’s finding that strict application of the zoning regulations would cause unnecessary hardship on the defendant, as required under K.S.A. 19-2934a(b)(3) (Ensley 1988). In particular, the court considered whether the requisite unnecessary hardship could be based on either: (1) the fact that the defendant bought the land, with the intent to build a car dealership, before the zoning regulations went into effect; or (2) the fact that it would be more expensive for the defendant to build at a more suitably zoned site. 216 Kan. at 750. The Stice court rejected both alleged bases of unnecessary hardship, finding that zoning was a future certainty when the defendant purchased the land and that the defendant had failed to apply for a nonconforming use permit. More importantly, the court reasoned that a person’s intention when purchasing land cannot form a basis for a finding of unnecessary hardship and that a landowner’s desire for pecuniary advantages only comes into play when the zoning regulation deprives tire landowner of any economically feasible use of the property. 216 Kan. at 752. In reaching this conclusion, the Stice court relied on the following definition of unnecessary hardship:
“ ‘The criterion of unnecessary hardship is that the use restriction, viewing the property in the setting of its environment, is so unreasonable as to constitute an arbitrary and capricious interference with the basic right of private property; or that there is convincing proof that it is impossible to use the property for a con forming purpose; or that there are factors sufficient to constitute such a hardship that would in effect deprive the owner of his properly without compensation. An unnecessary hardship exists when all the relevant factors taken together convince that the plight of the location concerned is unique in that it cannot be put to a conforming use because of the limitations imposed upon the property by reason of its classification in a specific zone.’ ” 216 Kan. at 751 (quoting Peterson v. Vasak, 162 Neb. 498, 508, 76 N.W.2d 420 [1956]).
In City of Olathe, the city challenged the board of zoning appeals’ grant of a variance to the defendant, who operated a filling station and truck stop along Interstate 35, to change the business name on its free-standing pole signs. The request for the variance was made necessary by the city’s new ordinance, which prohibited pole signs but permitted preexisting nonconforming signs. The defendant, who was a franchisee of a national company, was required by the new owners of the national company to either change its business name or lose its franchise license. However, by changing the name on the pole sign, the sign would be considered a new sign and would no longer fall under the preexisting use exception. The district court upheld tire board’s order granting the variance.
On appeal, this court considered whether there was substantial evidence supporting all five criteria necessary for the board to grant an area variance under K.S.A. 12-715(a) (Ensley 1982), including unnecessary hardship. This court found there was substantial evidence that the defendant would suffer unnecessary hardship if it were not permitted the variance because (1) the name change was not the defendant’s own decision but forced upon tire defendant by the national company and (2) the defendant alleged that it would go out of business if it were to take down the pole signs completely. This court distinguished Stice on the basis that the hardship in that case was only the loss of potential profitable use of the land, as opposed to the complete loss of an ongoing business. 10 Kan. App. 2d at 223-24.
In City of Merriam, the city challenged the board of zoning appeals’ grant of a variance to the defendant, a telecommunications company, to build a 990-foot communications tower necessary for the defendant to meet FCC regulations. The defendant entered into a contract to purchase tire land in October 1985, before there were any height restrictions in the applicable zoning regulation. A 75-foot height restriction was enacted in January 1986, and the defendant shortly thereafter petitioned for the variance, which the board granted subject to certain requirements. The defendant immediately renewed its contract to purchase the land. Several weeks later, the city filed an appeal with the district court. The defendant closed on the purchase contract before the district court issued its decision.
The district court reversed the board, finding that three of the five criteria under K.S.A. 12-7l5(a) (Ensley 1982) had not been met and thus the board had acted outside its authority in granting the variance. 242 Kan. at 535-36. With respect to the unnecessary hardship requirement of K.S.A. 12-715(a)(3) (Ensley 1982), the district court found that the hardship was self-created by the defendant’s decision to close on its purchase contract before the appeal had been finalized. The district court further found that no unnecessary hardship existed because tire defendant had not developed the property prior to the passing of the 75-foot height restriction. 242 Kan. at 539, 542.
On appeal, our Supreme Court acknowledged that, as a general rule, a variance may not be granted to relieve a self-created hardship. Furthermore, a hardship may be self-created when the landowner purchased the property with knowledge of the zoning restrictions. 242 Kan. at 541. Although our Supreme Court was “not in full agreement” with the district court’s findings, the court could not say as a matter of law that the district court had erred since the defendant did not have an ongoing business at the site in question. 242 Kan. at 542.
Finally, in Cooper v. City of Kansas City, No. 61,980, unpublished opinion filed November 4, 1988 (Kan. App.), the defendants built a commercial building that intruded 9 inches into the side-yard setback required by zoning regulations. The abutting landowner complained, so the defendants sought and were granted a curative variance from the board of zoning appeals. The district court upheld the board’s decision. On appeal, this court rejected the board’s finding that the requisite unnecessary hardship was satisfied by the combined economic hardship on the defendants, who would have to alter the building, and the good-faith calculation error by the defendants’ architect. This court found that, unlike the hardship in City of Olathe, this hardship was clearly self-created. Furthermore, this court found that there is no good-faith exception to the rule that an unnecessary hardship cannot be self-created. Slip op. at 4-7.
Several relevant principles can be drawn from the above cases. Stice concerned a use variance, which was permitted under the statute applicable at that time, and it would be inappropriate to apply the strict definition of “unnecessary hardship” used in that case in tire context of area variances. Nevertheless, Stice supports the proposition that mere economic advantage or disadvantage to the landowner applying for die variance does not in itself constitute unnecessary hardship. City of Olathe and City of Merriam both support the proposition that unnecessary hardship may be found where strict application of the zoning regulations would result in the complete loss of an existing business at the location in question, but not where strict application would merely prevent increased profitable use of that land. Finally, Stice, City of Olathe, City of Merriam, and Cooper all indicate that where a hardship is self-created, it cannot be deemed to be an unnecessary hardship. Under Stice and City of Merriam, a hardship may be self-created where the landowner purchased the property with knowledge of the zoning restrictions. Under Cooper, a hardship may be self-created even where it was the result of a good-faith error.
Returning to our facts, it is clear that the variances requested by the Heins would be economically advantageous to their business because the variances would allow more equipment storage space and more drivers to transport the equipment, which in turn would allow the Heins to serve more customers. Furthermore, to the extent that the Heins would lose existing customers and be required to reconfigure their business operations, it is reasonable to infer that the Heins would suffer economic disadvantage without the variances. Nonetheless, there is no indication that the Heins would lose their business without the variances; the business would simply be less profitable.
As to whether the hardship was self-created, the Heins acknowledged to the Board that the requested variances were made necessary as a result of their self-created business growth. Although there are no Kansas cases directly addressing whether self-created business growth can ever constitute an unnecessary hardship, courts of other jurisdictions have rejected that position. See, e.g., Bowman v. City of York, 240 Neb. 201, 212-13, 482 N.W.2d 537 (1992) (finding no undue hardship where business sought variance from setback requirement in order to expand its facilities and increase its profits); Ken-Med Associates v. Bd. of Tp., 900 A.2d 460, 466 (Pa. Commw. 2006) (holding that “expanding the use of a particular property to maximize profitability is not a sufficient hardship to justify the granting of a variance, because such financial hardship is in the form of a self-inflicted hardship”). The Bowman court stated that although a business' desire to maximize its profits “is certainly an understandable, even laudable, goal, it does not provide a basis for riding roughshod over the rights of others by obtaining a variance from zoning regulations with which the rest of the community must live.” 240 Neb. at 213.
Given that the main purpose underlying self-created business growth is generally to maximize a business' profits, and given that Kansas courts have indicated that mere economic advantage or disadvantage to a landowner is not a sufficient basis for a finding of unnecessaxy hardship, we conclude as a matter of law that self-created business growth is not an exception to the general rule that unnecessary hardship may not be self-created. Here, the Heins acknowledged that the requested variances were made necessary by their self-created business growth. Thus, the district court properly determined that the Board’s finding of unnecessary hardship was not supported by substantial evidence. The district court's determination was bolstered by its finding that the Heins grew their business with full knowledge of the zoning regulations under which they were operating. Because the Board’s findings were not supported by substantial evidence, the district court properly determined that the Board had acted outside the scope of its authority in granting the variances. Accordingly, we conclude that the district court did not err in vacating the variances granted by the Board.
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GREEN, J.:
This litigation arises out of a negligence action where the plaintiff, Jason Michaelis, sued the defendants, Gerald Farrell and Peggy Farrell, for an electrical shock he suffered while at the defendant’s property. A jury allowed recovery on plaintiffs claim. Moreover, the jury determined that Michaelis did not reasonably ascertain that he had sustained substantial injury until 5 years after receiving the electrical shock, which allowed him' to overcome the applicable 2-year statute of limitations hurdle. On appeal, the Far-rells contend that tire trial court erred in denying their posttrial motions, arguing (1) that Michaelis was barred from bringing his action under the applicable 2-year statute of limitations, and (2) that juiy instruction 8 misstated the law regarding this issue. We disagree. Accordingly, we affirm.
Michaelis’ plans were to spend the Fourth of July holiday with his mother and stepfather at their lake home in Climax Spring, Missouri. Michaelis’ stepfather had been experiencing problems with the boat lift on his dock, and he asked Michaelis, an electrician, to bring his tools when he came to the lake. While at the lake house on the morning of July 2, 2005, Michaelis answered a knock on the door. A woman was frantic because what she thought was a dead dog was floating in the lake. When Michaelis walked down to die dock, he saw another man was about to enter the water. As the man stepped onto a ramp, he fell in the water. Michaelis stated he understood the man to say he was being “electrocuted.” Mi-chaelis thought the dock was electrified so he told the man to move away from the dock. The man let go of the dock and disappeared under the water. The man’s daughter was present and asked Mi-chaelis to save her father. Michaelis still believed the dock was conducting a current so he assumed if he jumped in die water far enough from the dock he would avoid getting shocked. Michaelis jumped in the lake and was immediately aware the water had become electrified and he was getting shocked. Right before Mi-chaelis jumped in the lake, he had yelled for someone to cut off die electricity, and the next thing he knew, he had popped out of the water.
Michaelis testified diat after the power was shut off, his body felt like it had been through a workout; his body felt numb and was tingling. But other than those sensations, Michaelis thought he was fine. Eveiyone survived the electrified water, including the dog.
Beyond what he described as “nerves” after returning to work as an electrician, Michaelis did not initially note any difficulties. Over time, however, he began experiencing problems with memory and concentration which became progressively worse over the years. In March 2007, he consulted Dr. George Wurster, a psychiatrist, for severe overwhelming anxiety. Dr. Wurster was aware that Michaelis had suffered an electrical shock in 2005, but it was not until late 2009 that the doctor noted possible central nervous system syndrome secondary to the electrical shock. Dr. Wurster referred Michaelis to Dr. Sandi Isaacson, a neuropsychologist, to help ascertain if Michaelis had suffered neurological injury because of tire electrical shock. After testing Michaelis in March 2010, Dr. Isaacson concluded he had suffered a neurocognitive brain dysfunction as a result of the electrical shock. Michaelis sued the Far-rells for negligence on July 2, 2010.
The Farrells moved for summary judgment arguing that, as a matter of law, Michaelis suffered an injury immediately after the accident, or soon thereafter, when Michaelis was experiencing the problems he was having. Accordingly, the Farrells maintained that Michaelis’ suit was barred by the 2-year statute of limitations. The trial court denied the motion, finding there was a genuine issue of material fact as to when Michaelis reasonably ascertained he had suffered substantial injury caused by the electrical accident.
The matter went to trial and the jury awarded total damages of $120,412 and assigned comparative fault at 50% for tire Farrells and 50% for Michaelis. As a result, the damages assessed against the Farrells totaled $60,206. In answer to the question asking on what date did Michaelis reasonably ascertain he suffered a substantial injury, the jury verdict stated: “Spring 2010.”
Although Michaelis filed his petition in Johnson County, Kansas, where the parties resided, Missouri law applied to the cause of action. Thus, Michaelis was still entitled to recover damages despite the jury finding him equally at fault. See Mo. Rev. Stat. § 537.765.2 (2000) (“Any fault chargeable to the plaintiff shall di minish proportionately the amount awarded as compensatory damages but shall not bar recovery.”); cf. K.S.A. 60-258a(a) (the plaintiff s contributory negligence does not bar recovery as long as that party’s fault is less than the causal negligence of the defendant). Nevertheless, the Farrells’ statute of limitations defense was governed by Kansas statutory law.
Did the trial court err in denying the Farrells’ posttrial motions for directed verdict and judgment as a matter of law as to their statute of limitations defense P
The Farrells moved for a directed verdict on their statute of limitations defense during trial and timely renewed the motion after entry of judgment under K.S.A. 2012 Supp. 60-250(b). The Farrells argued that there was no genuine issue of material fact regarding when Michaelis suffered an actionable injury as a result of the accident on July 2, 2005, and Michaelis filed his action outside the permissible 2-year statute of limitations in K.S.A. 60-513(b). In their motion, the Farrells maintained that the evidence showed Michaelis suffered an immediate shock and pain when he entered the water, and soon after the accident, Michaelis reported anxiety about continuing his employment as an electrician. The Farrells further contended that Michaelis’ problems following the accident—trouble comprehending blueprints and issues with concentration and anxiety—were associated by both Michaelis and his psychiatrist, Dr. Wurster, with the electrical accident. The Farrells. maintained Dr. Isaacson’s 2010 diagnosis was merely verification of the extent of Michaelis’ injuries, which is not the standard to determine when there was objective knowledge of the injury.
The trial court found tire issue of when Michaelis reasonably ascertained he suffered an injury as a result of the accident was similar to the case of Gilger v. Lee Constr., Inc., 249 Kan. 307, 820 P.2d 390 (1991). As in Gilger, the trial court found there were disputed facts regarding when Michaelis realized his injury was connected with the electric shock. Consequently, the trial court determined this was a fact question for the jury.
Standard of Review
Our Supreme Court in National Bank of Andover v. Kansas Bankers Surety Co., 290 Kan. 247, 267, 225 P.3d 707 (2010), provides the following standard of review regarding a motion for judgment as a matter of law (formerly a directed verdict) under K.S.A. 2012 Supp. 60-250:
“Appellate courts apply the same standard as trial courts when considering a motion for directed verdict, now known as a judgment as a matter of law under K.S.A. 60-250. See Smith v. Kansas Gas Service Co., 285 Kan. 33, 40, 169 P.3d 1052 (2007).
“When ruling on a motion for directed verdict, the trial 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. Where reasonable minds could reach different conclusions based on the evidence, the motion must be denied. A similar analysis must be applied by an appellate court when reviewing the grant or denial of a motion for directed verdict.’ ” [Citations omitted.]’ 285 Kan. at 40.
“Stated another way, tire inquiry is ‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.’ Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); see, e.g., Smith, 285 Kan. at 40 (‘In other words, a motion for judgment as a matter of law must be denied when evidence exists upon which a jury could properly find a verdict for the nonmoving party.’).”
Analysis
K.S.A. 60-513(a)(4) provides that an “action for injury to the rights of another, not arising on contract, and not herein enumerated” shall be brought within 2 years. K.S.A. 60-513(b) provides, in relevant part:
“[T]he causes of action listed in subsection (a) shall not be deemed to have accrued until the act giving rise to tire cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injuiy becomes reasonably ascertainable to the injured party, but in no event shall an action be commenced more ffian 10 years beyond &e time of the act giving rise to die cause of action.”
On appeal, the Farrells contend that K.S.A. 60-513(b) presents two alterative bases to determine if a cause of action has accrued, which they arbitrarily label the “threshold standard” and the “al ternative standard.” The Farrells maintain that throughout the case, the trial court failed to consider the “threshold standard”— an action is deemed to have accrued when the act first causes substantial injury—which would have entitled them to judgment as a matter of law. According to the Farrells, the trial court wrongly found the fact of injury was not reasonably ascertainable until sometime after the accident by addressing only the “alternative standard.”
In response, Michaelis claims that this issue is raised for the first time on appeal and, further, that the Farrells offer no authority to support a two-part distinction in K.S.A. 60-513(b). As a result, Mi-chaelis contends that this issue is waived. But the Farrells contend that they were merely providing a way to differentiate the two alternatives bases from which a trial court could determine when a cause of action accrues; this was not a new argument. The Farrells maintain that from tire beginning they argued the electric shock accident immediately gave rise to substantial injury and that, had the trial court considered the first basis for accrual, it would have held that Michaelis suffered substantial injury on July 2, 2005.
The Farrells seem to be arguing that the trial court erred in submitting this issue to the juiy because the electric shock caused substantial injuiy to Michaelis on July 2, 2005, or soon thereafter, as a matter of law. There is no indication that the trial court did not consider if the negligent act caused substantial injury when Michaelis received the electric shock. Rather, the trial court found this was a disputed question of fact. The trial judge stated, “I can see the arguments [whether there was actionable injuiy immediately after the incident or not until years later] both ways.”
Caselaw
The statute of limitations starts to run in a tort action when the act first causes “substantial injuiy.” K.S.A. 60-513(b). Kansas courts have interpreted the phrase “substantial injuiy” to mean “actionable injury.” Roe v. Diefendorf, 236 Kan. 218, Syl. ¶ 2, 689 P.2d 855 (1984). “The rule which has developed is: The statute of limitations starts to run in a tort action at the time a negligent act causes injury if both the act and the resulting injuiy are reasonably ascertainable by the injured person.” 236 Kan. at 222. “[T]he term "reasonably ascertainable’. . . suggests an objective standard based upon an examination of the surrounding circumstances.” P.W.P. v. L.S., 266 Kan. 417, 425, 969 P.2d 896 (1998).
“Inherent in "to ascertain’ is ‘to investigate.’ ” Davidson v. Denning, 259 Kan. 659, 675, 914 P.2d 936 (1996). When reason exists to suspect a negligent act and when information exists from which negligence can be determined, the limitations period will start. See 259 Kan. at 675-76. In other words, “Kansas’ ‘fact of injury’ standard postpones tire running of the limitations period until the time the plaintiff is able to determine that [his or her] injury may be caused by some act of the defendant.” Benne v. International Business Machines Corp., 87 F.3d 419, 427 (10th Cir. 1996).
The use of the phrase “substantial injury” in K.S.A. 60-513(b) does not require tire injured person to have knowledge of the full extent of his or her injuries, but the person must have a “sufficient [reasonably] ascertainable injury to justify an action for recovery of damages.” 236 Kan. at 222. “ ‘The trae test to determine when an action accrues is that point in time at which the plaintiff could first have filed and prosecuted his action to a successful conclusion.’ [Citation omitted.]” KPERS v. Reimer & Roger Assocs., Inc., 262 Kan. 110, 116, 936 P.2d 714 (1997). Both the act and resulting injury must be reasonably ascertainable to the injured party. Roe, 236 Kan. at 222.
If examining the surrounding circumstances shows that the plaintiff clearly has knowledge of his or her injury and that the defendant was the likely cause, the trial court can make the legal determination that the injury was reasonably ascertainable at that point. See Lehmann v. Young, No. 97,602, 2007 WL 3146699, at *6 (Kan. App. 2007) (unpublished opinion). But if the trial court finds the evidence is in dispute as to when substantial injury first appeared or became reasonably ascertainable, the issue is for determination by the trier of fact. Gilger, 249 Kan. at 311.
Underlying Facts
Michaelis testified that when he jumped in the water his body shook with electricity; his arms would not move to bring him back to the surface; and he was afraid he would drown. On cross-examination, defense counsel asked Michaelis if feeling the electrical current running through his body was painful. Michaelis answered, “Yes.” When asked about this answer on redirect, Michaelis stated, “It wasn’t pain like excruciating pain. It was ... discomfort.” Emergency medical personnel arrived and checked Michaelis’ vital signs, which were normal. They wanted to take Michaelis to the hospital as a preventative measure, but he refused. Michaelis had been around people who had suffered electrical shocks, and he knew he had not suffered any injury typically seen from an electrical shock. Immediately after the accident, Michaelis’ stepfather saw him standing up in the water and he asked Michaelis if he was okay. Michaelis said he was okay. Michaelis’ stepfather further testified that Michaelis lifted the dog out of the water and drat the dog weighed around 100 pounds.
When Michaelis returned to work after the accident, he admitted he was afraid when it came time to work on “hot” electrical panels, describing it as being “gun-shy.” Over time he began having trouble with his memory, focusing, and reading blueprints. He thought he might be having problems with his eyes and that he might be developing diabetes. When his symptoms became progressively worse, he investigated those problems by seeking medical advice. He was referred to Dr. Wurster. Michaelis testified that he told Dr. Wurster he had had those difficulties since the time of the electrical shock, but Dr. Wurster dismissed the suggestion that his condition was caused by the accident. According to Michaelis, Dr. Wurster finally referred him to Dr. Isaacson for further investigation because medication had not ameliorated the symptoms. Michaelis testified that Dr. Isaacson told him that he had suffered a physical brain injury as a result of tire electric shock.
Dr. Wurster testified that he first saw Michaelis in March 2007. Michaelis was complaining of severe overwhelming anxiety, depression, memory problems, and difficulty reading blueprints. Mi-chaelis reported he could no longer supervise people at work, and he was not able to follow directions like before. Dr. Wurster testified that Michaelis told him about the electrical shock, and Dr. Wurster thought it had something to do with Michaelis’ problems, but it was not until late 2009 that Dr. Wurster diagnosed Michaelis with posttraumatic stress disorder brought on by the electric shock. When Dr. Wurster was asked if this was the first time he had relayed to Michaelis that he believed Michaelis’ problems were due to the electrical shock, he answered:
“I probably made it more clear then. Initially, when I saw him over the months, I wasn’t—I don’t know anything about electricity, so it was hard for me to understand the severity of the shock. And I didn’t understand that, and, therefore, I didn’t want to jump to that conclusion. But over time it became more and more obvious that that could be the problem—part of the problem, and, therefore, I recommended he investigate it more.”
That was when Dr. Wurster referred Michaelis to Dr. Isaacson.
Dr. Isaacson testified that she first saw Michaelis in February 2010. At that time, he was complaining of multiple symptoms— memory issues, anxiety, inability to concentrate, and difficulty with problem solving. Michaelis reported he noted those problems after receiving a large dose of electricity, but he thought it might simply be part of being depressed and was concerned that the depression had not remitted. After testing Michaelis and reviewing medical research, Dr. Isaacson testified that she concluded that Michaelis had a disruption in the way his brain cells communicate and that these changes were brought on by the electric shock.
Dr. Isaacson explained that brain injuries from electrocution are different than traumatic brain injuries. As opposed to traumatic brain injuries, which cause immediate injury and get better over time, electrical shock injuries to the brain are insignificant initially and worsen over time, particularly around the fourth or fifth year. Dr. Isaacson further explained that electrical shock injuries to the brain cause cognitive functions to deteriorate over time, including increased memory and attention problems and difficulty regulating emotions. In the spring of 2010, Dr. Isaacson diagnosed Michaelis with injury to his brain caused by the electrical shock.
Arguments
The Farrells repeatedly assert that Michaelis suffered substantial or actionable injury on July 2, 2005, because he knew he had suffered an electric shock when he entered die water and, immedi ately thereafter, Michaelis experienced paralysis, pain, fear, anxiety, and emotional distress. The Farrells note that the trial court relied on Gilger, but they contend that case is distinguishable because the plaintiffs in Gilger suffered symptoms at various times from carbon monoxide exposure but were unaware of the cause for many years. The Farrells argue that Michaelis was aware he was receiving an electric shock when it was occurring and he was equally aware of the symptoms he experienced as a result of the shock. According to the Farrells, the only delayed aspect of Mi-chaelis’ case was the formal diagnosis made by Dr. Isaacson; Mi-chaelis knew or reasonably should have ascertained that the electric shock caused his injuries. In that respect, the Farrells contend that this case is similar to Friends University v. W.R. Grace & Co., 227 Kan. 559, 608 P.2d 936 (1980), and Roe, 236 Kan. 218.
In Gilger, within a year of moving into their home, the plaintiffs began experiencing health problems and suspected, at least in part, that gas in the house was the source of their problems. Over the years, the furnace was repeatedly checked for gas or carbon monoxide leaks, but none were found. About 4 years after moving into the house, an inspection of the furnace showed it was improperly vented. The plaintiffs thereafter filed a negligence action, claiming they did not discover their health problems were caused by the furnace until the inspection showed it was improperly vented. The trial court granted summary judgment in favor of die defendants, concluding that the plaintiffs knew or could have reasonably ascertained before the 2-year statute of limitations that their injuries were caused by the defendants’ negligent acts.
On appeal, the appellees argued that the appellants became aware of their problems shortly after they moved into the house because they sought medical treatment for their symptoms and were periodically suspicious of gas in the house. The appellants admitted they were aware they were suffering substantial health problems, but they did not know the nature and cause of their problems until they were told the furnace was installed without proper venting.
As did the Farrells, the appellees in Gilger relied on Friends and Roe. Our Supreme Court ruled that their reliance on Friends and Roe was misplaced. Gilger, 249 Kan. at 321. In Friends, the plaintiff s new roof began to leak soon after it was installed. The plaintiff complained to the roofing company. At some point tire roofing manufacturer became involved and attempts were made to repair the roof. About 4 or 5 years after the roof first started leaking, the plaintiff retained an expert, who determined the manufacturer was at fault. The plaintiff brought an action within 2 years of the experfs report but well beyond the 2-year statute of limitations. Our Supreme Court determined that tire plaintiff s failure to know the exact scientific nature of the problem did not toll the statute of limitations when it was clearly apparent when the roof first started leaking that there was a problem with the roof caused by a defective design, materials, or workmanship. 227 Kan. at 563, 565.
In Roe, the plaintiff was in a car accident and suffered a back injury that caused pain and required him to be laid off work for several days. Plaintiff did not file suit, however, until he reinjured his back over 2 years later. Plaintiff argued that he did not realize the full extent of his injuries until then. Our Supreme Court ruled that the action accrued when the plaintiff sustained sufficient ascertainable injuries to justify an action for damages regardless of the extent of the injuries. 236 Kan. at 222-23.
The Gilger court distinguished both Friends and Roe because in those cases the party whose negligence caused tire injuries was immediately known and the injuries were ascertainable within a short period of time. 249 Kan. at 322. Although the Gilger court acknowledged that the appellants knew they were ill long before they filed suit and that they suspected carbon monoxide gas poisoning, the court noted that the appellants received different opinions on the cause of their symptoms and stated: “Injury and damages alone are not sufficient for tire accrual of a negligence action. Establishing when the facts of injury were reasonably ascertainable is an essential element in determining when a tort action accrued.” 249 Kan. at 322. Because the evidence was controverted as to when tire appellants’ injuries were reasonably ascertainable and when the cause of the injuries was determined, tire Gilger court ruled that a material question of fact existed that should be resolved by a jury. 249 Kan. at 322.
The surrounding circumstances of Michaelis’ case are more similar to Gilger than either Friends or Roe. Contrary to the Farrells’ assertions, when viewing the evidence in a light favorable to Mi-chaelis, the evidence indicates that no actionable injuiy existed on July 2, 2005. Michaelis did not believe he suffered any injury at that time and, by all appearances, he had no physical or acute injuiy immediately after the electric shock. At some point Michaelis knew he was having difficulties with memory, concentration, anxiety, and depression, and he suspected his problems were related to the electric shock. Moreover, Michaelis investigated the symptoms that he was experiencing by seeking medical help. But, as explained earlier, Dr. Wurster initially dismissed any connection between Michaelis’ symptoms and his electric shock. Arguably, unlike Friends or Roe, Michaelis did not know that his injury was associated with the electrical shock until late 2009 pr early 2010 when Dr. Isaacson told Michaelis that his test results and problems were consistent with electrical injuries to the brain. The statute of limitations commenced running at that time. Accordingly, Michaelis’ claims would have to be brought no later than late 2011 or early 2012 for his claims not be be barred by the 2-year statute of limitations. Because Michaelis filed his cause of action on July 2, 2010, the applicable 2-year statute of limitations did not bar his claims.
The evidence was controverted as to when Michaelis’ injury was reasonably ascertainable and the cause of the injuiy was determined. We draw some guidance from Hall v. Miller, 29 Kan. App. 2d 1066, 1073, 36 P.3d 328 (2001). In Hall, the court pointed out that when dealing with mental conditions, bright-line events may not be present under K.S.A. 60-513(b). Accordingly, the trial court properly submitted the question to the jury and properly denied the Farrells’ motion for a directed verdict and motion for judgment as a matter of law.
Did the trial court err in denying the Farrells’ motion for new trial because jury instruction 8 misstated the law under K.S.A. 60-513(b)?
The Farrells filed a motion for new trial arguing the trial court’s jury instruction regarding K.S.A. 60-513(b) was a misstatement of the law because it failed to define “substantial injury.”
Juiy instruction 8 stated: “If you find any fault on defendants and that plaintiff has sustained damages, you must determine on the verdict form the date when plaintiff reasonably ascertained that he had suffered a substantial injury related to the electric shock received on July 2, 2005.”
On appeal, tire Farrells contend this instruction misstated Kansas law because (1) it ignored the “threshold standard” language that would have allowed tire jury to find Michaelis suffered substantial injury on July 2, 2005; (2) the trial court should have defined the phrase “substantial injury” in a manner consistent with Roe or used the phrase “ascertainable injury” or “any injury”; and (3) the instruction provided the jury with a subjective standard instead of an objective standard.
Michaelis contends that the Farrells did not properly object to jury instruction 8. According to Michaelis, the Farrells indicated they were agreeable to the instruction but wanted an additional instruction defining the word “substantial”; but they never proposed a definition. Michaelis further contends that the Farrells are not just claiming the instruction was incomplete but now, for the first time on appeal, maintain that the instruction misstated the law in ways they never mentioned below. The Farrells disagree and assert their objection was not a request for a jury instruction but an objection that instruction 8 misguided and misled the juiy. Accordingly, they contend that their objection did not require a supplemental instruction.
Underlying Facts
Before the juiy instruction conference, the Farrells submitted an instruction that read: “Your verdict must be for the defendants if you believe plaintiff had an ascertainable injury arising from the incident at issue, regardless of the extent, prior to June 2, 2008.”
On the record, defense counsel made the following statements regarding tire trial court’s proposed instruction on this issue.
“THE COURT: . . . Anything else anybody else wants to state regarding the instructions?
“MR. BARTALOS [Defense Counsel]: Judge, I think that we believe that substantial’ should be defined or that it should be ‘any injury’ subject to Roe.
“THE COURT: I think that folks in a lay jury can figure out what the word ‘substantial’ means—
“MR. BARTALOS: Okay.
“THE COURT: —and ‘reasonable’ and ‘ascertainable.’
“MR. BARTALOS: Okay.
“THE COURT: I think those are common English language words. I don’t think we need to lawyer that up.”
A little later, the trial court asked the parties if, after having seen the final draft of the jury instructions, they had any other objections. Defense counsel stated:
“And Instruction No. 8 and the verdict form, we believe the use of the word, quote, substantial, unquote, injury is improper without being defined pursuant to the Roe decision that we’ve discussed; and to that extent believe it’s misguiding and misleading this jury in their determination and, therefore, the defendant is prejudiced.”
Analysis and Standard of Review
K.S.A. 2012 Supp. 60-251(c) states that “[a] party who objects to an instruction or the failure to give an instruction must do so on the record, stating distinctly the matter objected to and the grounds ■for the objection.”
The above exchange between the trial court and defense counsel could fairly be interpreted as an objection to the trial court’s instruction regarding K.S.A. 60-513(b). Assuming the Farrells properly objected, the standard of review is as follows:
“ ‘It is the duty of the trial court to properly instruct the jury upon a party’s theory of the case. Error regarding jury instructions will not demand reversal unless it results in prejudice to the appealing party. Instructions in any particular action are to be considered together and read as a whole, and where they fairly instruct the jury on the law governing the case, error in an isolated instruction may be disregarded as harmless. If the instructions are substantially correct, and the jury could not reasonably be misled by them, the instructions will be approved on appeal.’ [Citation omitted]” Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, 383, 266 P.3d 516 (2011).
Here, the Farrells asked for a definition of “substantial” consistent with Roe. Roe found there cannot be a legal distinction between an unsubstantial injury and a substantial one. Thus, tire Roe court construed tire phrase to mean “actionable injury.” 236 Kan. at 222-23. But still, defense counsel’s offer of the phrase “any in jury” may not have conveyed the appropriate standard. See Olson v. State Highway Commission, 235 Kan. 20, 26-27, 679 P.2d 167 (1984) (finding the initial injury was not necessarily substantial enough to trigger the running of die statute of limitations, reasoning that parties should not be “forced into court at the first sign of injuiy, regardless of how slight it might be”). Further, as Michaelis contends, the use of the phrase “actionable injury” would have asked the jury to form a legal conclusion. There was no PIK instruction available, but in this case it seems the trial court attempted to follow die language of K.S.A. 60-513(b) by using the term “substantial injury,” which would have allowed the jury to find Michaelis suffered his injury on July 2, 2005 (Farrells’ alleged threshold standard) or anytime after that.
The Farrells also argue tiiat the jury instruction asked the jury to use a subjective standard rather than an objective standard. They contend the instruction should have asked when the injury was reasonably ascertainable to Michaelis, not when Michaelis reasonably ascertained die injury. Michaelis asserts that this was the language found appropriate in Gilger and, additionally, by using die term “reasonably,” it was clear die jury was asked to use an objective standard. The Farrells did not object to the instruction on this ground; however, the instruction asked the juiy to determine when Michaelis “reasonably” ascertained his injury, which would satisfy the objective requirement.
Jury instruction 8 was a substantially correct statement of the law, and the jury was not misled. Throughout the trial the Farrells tried to emphasize diat Michaelis suffered an injuiy on July 2,2005. Because die jury rejected that premise, instruction 8 did not prejudice the Farrells.
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|
Pierron, J.:
The Unified Government of Wyandotte County/ Kansas City, Kansas, (UG) appeals the district court's refusal to overturn an arbitrator’s award reducing construction worker Anthony Herron’s discharge to a suspension. We affirm.
This appeal arises out of the arbitration undertaken by the parties regarding the discharge of an employee of UG’s Water Pollution Control Division. The employee, Herron, was protected by the provisions of the Memorandum of Agreement (MOA) previously negotiated between the International Brotherhood of Electrical Workers, Local 53 (IBEW) and UG. Under this contract, the issue of whether UG had “just cause” to terminate Herron’s employment was submitted to arbitration. The arbitrator elicited testimony at a hearing as well as legal arguments in the form of briefs and rendered a decision in favor of Herron and IBEW. The arbitrator ordered UG to reduce Herron’s discharge to a suspension. At UG’s request, the district court reviewed the contract between the parties, the decision of the arbitrator, and the legal arguments of die parties, and then issued a memorandum decision affirming the arbitrator’s decision.
We start with the facts as found by the arbitrator. Herron began working for UG on April 6, 2000, and at the time of his discharge he was a Construction Worker III. On the morning of July 26,2010, Herron was working with a four-person crew, including employees Macan, Rangel, and Walker. Walker was the senior crewmember, but he had assigned foreman duties to Herron for the day. At around 7 a.m., Herron asked Rangel to “get the shovels,” which meant, among other things, open the manhole at the project site. When Herron, Macan, and Walker arrived at the site, Herron saw Rangel sitting down and the manhole unopened. Herron asked Rangel why the manhole had not been opened. At the same time, Herron and Walker were joking about how to get a concrete truck to the site to fill the trench, which had to be dug to reach the line being plugged. Rangel suggested that the crew “put the dirt back.” Herron told Rangel that when he had his own crew, he could decide how to fill the hole. Herron and Rangel exchanged words as Macan and Walker dug the trench.
At some point, Herron asked Rangel if he had something to get off his chest. Rangel testified he responded by saying, “Whatever. Then [Herron] started staring at me and calling me a pussy. [I] said shut the fuck up and leave me alone.” Herron said it was then that Rangel “bumped” him. Macan told UG that Rangel “pushed [Herron] and they started wrestling around a little bit.” Walker told UG that Rangel “bumped” Herron and Herron “bumped him back.” Then Herron “hit” Rangel. Rangel grabbed a trenching shovel but did not swing it at Herron. The two employees scuffled but were quickly separated by Macan and Walker. Following the incident, Herron admitted he had “lost it” and was angry at himself for not keeping his cool.
Rangel called the supervisor, who took statements from the entire crew. Walker told UG that “both men were in the wrong . . . [and] should not have been in this fight.” The supervisor’s incident report read that Rangel was “punched in the face by a coworker and pushed to the ground.” It also read that Rangel had sustained “contusions to face, back, loose teeth and cut and swollen lip.”
On July 26, 2010, UG suspended Herron for assaulting Rangel. Herron’s suspension letter advised that UG would recommend termination to the deputy county administrator. UG ultimately discharged Herron.
On July 27,2010, Rangel saw a doctor, who reported Rangel had a “facial contusion and lumbar contusions” and sent him back to work. That same day, Rangel filed a “report by injured employee” stating that he had been “assaulted on the job site by a coworker and that he had sustained injuries to his teeth, nose, hand and back.”
On August 23, 2010, IBEW filed a Step 3 grievance form declaring that Herron had been discharged “without just cause” and requested that he be reinstated with full back pay and benefits. On October 5, 2010, UG responded by stating that while it agreed with IBEW that Herron was “a very good employee and this was a very unfortunate incident in that [Herron] regrets his actions*,” it was denying the grievance because “reinstatement of [Herron] would be setting a very bad precedent.”
The IBEW and UG had entered into a MOA through the negotiation process which provided arbitration in cases such as these. After the parties sought arbitration of the matter, a hearing was held on March 4,2011. The issue submitted for a final and binding decision was stated as follows: “[W]hether the Grievant, Anthony Herron, was discharged for just cause; and, if not, what is the proper remedy?”
UG claimed it had just cause to discharge Herron. IBEW countered that mitigating circumstances justified Herron’s reinstatement. The arbitrator noted that UG had discharged Herron for assaulting a coworker, both parties agreed that fighting on the job was a serious offense requiring discipline, and UG bore the burden of proving just cause by clear and convincing evidence.
The arbitrator began his analysis by setting out a five-part test to determine whether there was just cause for Herron’s termination, citing one of his previous arbitrations, In re Unified Government of Wyandotte County/Kansas City, Kansas and Fraternal Order of Police, Lodge No. 40. The arbitrator found that the first four requirements were undisputed: (1) the employee’s conduct (assault) was a violation of a rule reasonably related to the safe operation of the employer’s enterprise; (2) the employee had notice of disciplinary consequences—Herron had received training on workplace violence; was a foreman who knew or should have known that fighting would result in discipline; and he admitted “losing it” and was mad at himself for his misconduct; (3) the relevant facts supported the charge against the employee—Herron had hit Rangel causing harm to Rangel’s mouth and back; and (4) whether the discipline was consistent with the employer’s past actions in similar situations—this was UG’s first assault incident.
The fifth and final requirement—whether the discipline was appropriate considering die seriousness of the infraction, the employee’s work record, and the mitigating circumstances—was deemed to be “the crux of th[e] arbitration.” The arbitrator found that the following mitigating circumstances supported reduced discipline: (1) Herron had been a good employee for almost 10 years and had been promoted to foreman in part because of his good work record; (2) Rangel had provoked Herron by bumping him (citing Lennox Manufactures, 119 Lab. Arb. Rep. [BNA] 405, 409 [2003] [Hoh, Arb.], for the proposition that provocation is mitigating factor if it causes an employee to lose temporary control of emotions and act out of irritation); and (3) Herron was “truly and genuinely remorseful” immediately after his altercation with Rangel (citing Clow Water Systems Co., 102 Lab. Arb. Rep. [BNA] 377, 380 [1994] [Dworkin, Arb.], for the proposition that an employee’s honest remorse is a mitigating factor).
We note some chance for confusion in the language used. While UG probably had “just cause” to discharge Herron, the issue on appeal is the level of punishment.
Due to the mitigating circumstances, the arbitrator exercised his power under the MOA’s “unusual provision” that gave him “discretion to reduce or raise discipline imposed.” He ordered UG to reduce Herron’s discharge to a suspension and reinstate him without back pay or benefits.
UG sought review of the arbitrator’s award in the district court. The court rejected UG’s argument that the MOA mandated immediate termination of an employee who assaults another employee: “[Section 11.2] authorizes immediate termination for assault. It does not mandate it, and provides that assault among other things constitutes ‘justification’ for immediate termination.” The court affirmed the arbitrator’s award, finding it was not arbitrary, capricious, and/or unreasonable. UG timely appeals.
UG argues the district court should have vacated the arbitrator’s award because it was arbitrary, capricious, and unreasonable. We have very limited review of this issue. An appellate court must affirm an arbitration award as long as the arbitrator acted within the scope of his or her authority, and is bound by an arbitrator’s findings of fact and conclusions of law unless an error was made in bad faith or amounts to affirmative misconduct. City of Coffeyville v. IBEW Local No. 1523, 270 Kan. 322, 334, 336, 14 P.3d 1 (2000). Moreover, tire parties’ MOA allows for judicial review of an arbitrator’s award, but permits the district court to “only determine whether the Arbitrator’s decision was 'arbitrary, capricious and/or unreasonable.’ ”
The Kansas Supreme Court has defined “unreasonable” as “action taken without regard to the benefit or harm to all interested parties,” and “arbitrary and capricious” as action that is “unreasonable or without foundation in fact.” Peck v. University Residence Committee of Kansas State Univ., 248 Kan. 450, 456, 807 P.2d 652 (1991) (reviewing administrative decision under Kansas Judicial Review Act).
The Arbitrator Had Authority to Reduce Herrons Discipline.
First, UG claims the arbitrator lacked authority to modify Herron’s discipline because the MOA mandates termination of employees who assault or batter other employees. IBEW counters that UG cannot raise this issue after conceding it at arbitration. We will address the issue because UG raised it before the district court.
UG and IBEW entered into a MOA under K.S.A. 75-4330(a). See K.S.A. 75-4330(b) (MOA can contain grievance procedure and provide for impartial arbitration of disputes arising from interpretation of MOA). Article 11 of the MOA concerns the discipline of an employee:
“11.1 GENERAL
. . . Employees, excluding probationary employees, shall only be disciplined or discharged for just cause. .. .
11.2 IMMEDIATE TERMINATION
The following reasons, by themselves, shall be considered justification for immediate termination of employees covered by the Memorandum of Agreement....
(e) Assault and/or battery upon a supervisor or another employee.
“11.4 DISCIPLINE
Upon violation of one or more of the reasons referenced below, the employee shall receive a first warning . . . oral or written. Upon a second violation of tire same nature . . . written warning .... A third violation . . . written warning and a three (3) days’ suspension, without pay. ... A fourth violation . . . within any consecutive twelve (12) month period, shall result in the termination of the employee.
Violations pertinent to Section 11.4 shall include but not be limited to:
(a) Insubordination
(1) Violation of Department Rules and Regulations.”
Article 12 of the MOA deals with the grievance procedure:
“Step 4 - Arbitration:
(d) The Jurisdiction and authority of the arbitrator shall be governed by the following:
2. The Arbitrator shall have no power to add to, subtract from or modify any of the terms of this Memorandum.
4. The Arbitrator shall have no authority to substitute his judgment for that of the management of the UG, Division or Administrator . . . except that he shall have discretion to reduce or raise discipline imposed.” (Emphasis added.)
The primary rule for interpreting a written contract is to ascertain the intent of the parties. If the contract’s terms are clear, such intent is to be determined from the contract’s language without applying rules of construction. Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011). And contractual provisions must be construed together and in harmony rather than in isolation. 291 Kan. at 778.
Section 11.2 does not provide that assaulting another employee mandates immediate termination. It does, however, set assault apart from Section 11.4 conduct, like insubordination, requiring three warnings before termination. But even if Section 11.2 does, as UG claims, confer just cause to fire Herron, MOA provisions must still be construed together. Section 12.3 permitted the arbitrator to reduce Herron’s discharge to a suspension.
In Weems v. Buildex, Inc., 8 Kan. App. 2d 321, 325, 657 P.2d 72 (1983), this court explained an arbitrator’s common role:
“ ‘In many disciplinary cases, the reasonableness of the penalty imposed on an employee rather than the existence of proper cause for disciplining him is the question an arbitrator must decide. This is not so under contracts or submission agreements which expressly prohibit an arbitrator from modifying or reducing a penalty if he finds that disciplinary action was justified, but most current labor agreements do not contain such limiting clause.’ ”
UG claims the reduction of Herron’s discipline was arbitrary, capricious, and unreasonable because the arbitrator failed to consider the harm to all interested parties and made factual findings not supported by the evidence.
The arbitrator applied a test similar to a seven-part test, which our Supreme Court has recognized as a proper tool for arbitrators to use in making just cause rulings in discharge cases:
“(1) Did the employer give the grievant forewarning or foreknowledge of the possible or probable disciplinary consequences of the grievant’s conduct? (2) Was the employer’s rule or managerial order reasonably related to the orderly, efficient, and safe operation of the company’s business and the performance that the employer might properly expect from the employees? (3) Did the employer, before administering discipline to the grievant, malee an effort to discover whether the grievant did in fact violate or disobey a rule or order of management? (4) Was the employer’s investigation conducted fairly and objectively? (5) Did the investigator obtain substantial evidence or proof that the grievant was guilty as charged? (6) Has the employer applied its rules, orders, and penalties evenhandedly and without discrimination to all employees? and (7) Was the degree of discipline administered by the employer reasonably related to the seriousness of the grie-vant’s proven offense and the record of the grievants’s service to the employer?” City of Coffeyville, 270 Kan. at 330
But in this case, the arbitrator used the test to decide whether he should reduce Herron’s discipline. We believe that was appropriate.
The arbitrator’s use of the test’s appropriateness/reasonableness prong was far from unreasonable. Before exercising his discretion to reduce Herron’s discipline, the arbitrator made factual findings regarding Herron’s work record (good employee for almost 10 years and was promoted to foreman) and other mitigating circumstances (Herron was provoked and was genuinely remorseful about assaulting Rangel). These findings suggest the arbitrator believed UG would not be harmed by Herron’s continued employment and that Herron would benefit from a chance to redeem himself. Keep in mind that this award does not mean every UG employee who assaults another employee will be reinstated—not every arbitrator will exercise his or her discretion to reduce discipline, not eveiy employee will have a sparkling work record, and not every situation will have compelling mitigating circumstances. Finally, because of the rule against reweighing evidence, we cannot consider UG’s claim that Herron was not truly sorry about hurting Rangel.
Therefore, the district court did not err in finding that the arbitrator’s award was not arbitrary, capricious, or unreasonable.
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McAnany, J.:
The State charged Samantha Coty in Ellis County with credit card fraud. The credit card Coty allegedly used was physically located in Ellis County where the cardholder, Kenneth Jacobs, lived and worked. Coty was in Sedgwick County when she allegedly made unlawful charges using information from Jacobs’ credit card. There was no evidence that Coty had ever been in Ellis County. The district court dismissed the charge, finding that Ellis County was not the proper venue for prosecution because no elements of the crime occurred there. The State appeals.
The Visa credit card was issued by UMB Bank to Jacobs in his capacity as plant director of Fort Hays State University in Ellis County. Jacobs was entitled to use die card for purchases related to his work at the university. He kept the card in a locked file cabinet in his office. He had not been to Wichita during the year and a half before the events surrounding this case and had not authorized anyone else to use the card during the relevant time period.
When UMB Bank inquired of Jacobs about certain purchases made with die card, it became apparent that information from the card was being used without Jacobs’ consent to make purchases. One of tire unauthorized charges was for the purchase of airline tickets. The tickets were purchased in Wichita through the Expedia on-line travel service and were for a flight from Wichita Mid-Continent Airport to Alexandria Air Force Base in Louisiana. The tickets were to be picked up at the airport on die day of the flight. Sedgwick County law enforcement authorities intercepted Coty at the airport when she arrived for the flight and claimed the tickets. Coty was arrested and eventually transported to Ellis County where she was charged with criminal use of a financial card in violation of K.S.A. 2012 Supp. 21-5828(a)(1). The complaint stated:
“That on or about the 13th day of September, 2011, in Sedgwick County, Kansas, Samantha Thompson Coty, then and there being present did unlawfully, feloni-ously, and knowingly use a number issued by Visa Credit Car'd, last four digits 0218, issued by UMB Bank Card Center to tire cardholder Fort Hays State University, person authorized to use said card, Ken Jacobs, in Ellis County, KS, without tire consent of cardholder Ken Jacobs, with the intent to defraud and to obtain, money, goods, property or services, and did obtain flight tickets on Continental Airline totaling $1,622.00 in violation of the 2010 Kansas Sessions Laws Chap 136 Sec. 114(a)(1), to be codified at K.S.A. 2011 Supp 21-5828(a)(1), formally codified at K.SA. 21-3729, Criminal Use of a Financial Card, a severity level 9 nonperson felony.”
Coty moved to dismiss the charge on the grounds that the crime as alleged was committed in Sedgwick County and Ellis County was not the proper venue for the case pursuant to K.S.A. 22-2602. The district court dismissed the charge for lack of venue. In doing so, the court rejected the State’s argument that failing to obtain the cardholder’s consent was an act that occurred in Ellis County. The court found no evidence that “the defendant was in Ellis County at any time” and dismissed the charge because no elements of the crime took place in Ellis County. The court stated: “If the defendant charged using the financial card numbers without the consent of Kenneth Jacobs, the lack of consent occurred in Sedgwick County, and not in Ellis County.”
We have unlimited review of the venue issue in this appeal. See State v. McElroy, 281 Kan. 256, 264, 130 P.3d 100 (2006). When resolving a claim of improper venue requires statutory interpretation, “such interpretation also raises issues of law subject to de novo review on appeal. [Citation omitted.]” 281 Kan. at 264-65.
Under our Kansas Constitution, Coty is entitled to be tried in “the county or district in which the offense is alleged to have been committed.” Kan. Const. Bill of Rights, § 10; see K.S.A. 22-2602. In situations in which two or more acts are required for the commission of a crime and the acts occur in different counties, the State can prosecute the defendant in any county in which any such acts occurred. See K.S.A. 22-2603.
Coty was charged with criminal use of a financial card in violation of K.S.A. 2012 Supp. 21-5828(a)(1). That statute provides:
“(a) Criminal use of a financial card is any of the following acts done with intent to defraud and to obtain money, goods, property or services:
(1) Using a financial card without the consent of the cardholder.”
Coty has never visited Ellis County, and the unauthorized purchases were not for goods or services in Ellis County. Coty argues that “the elements of the alleged crime clearly took place” in Sedgwick County. The only issue before this court is whether Ellis County is a proper venue based on the fact that it is where the cardholder, Jacobs, resides.
K.S.A. 2012 Supp. 21-5111(a) defines an “act” in our criminal code to include “a failure or omission to take action.” The State argues that Coty’s failure to obtain Jacobs’ consent was an act that constitutes an element of the crime and that this act occurred in Ellis County because it is where Jacobs and the credit card were located when the unauthorized purchases were made.
The State relies on three Kansas cases for support: State v. Boorigie, 273 Kan. 18, 41 P.3d 764 (2002); State v. Womelsdorf, 47 Kan. App. 2d 307, 274 P.3d 662 (2012), petition for rev. filed May 10, 2012; and State v. Jones, 9 Kan. App. 2d 106, 673 P.2d 455 (1983).
In Jones, the earliest of these cases, Jones was in custody in Allen County awaiting trial on felony-theft charges. Jones required medical attention while in jail and was taken to a hospital in Kansas City, Missouri. When he was released from the Kansas City hospital, he absconded and failed to return to Allen County for trial. When Jones was apprehended, he was returned to Allen County and tried on the original theft charge plus a new charge of aggravated escape. On appeal, the court found that Allen County was an appropriate venue for the aggravated escape charge. 9 Kan. App. 2d at 106-07.
The court determined that Jones had an affirmative duty he had to perform in Allen County: the duty to return to the Allen County jail after being released from his medical treatment in Missouri. Having breached that duty when he absconded in Missouri, Jones could be tried in Allen County where he failed to perform this duty. Unlike Jones, Coty had no duty to perform in Ellis County. She had the duty not to use Jacobs’ credit card information without his permission, but her use of the credit card without Jacobs’ permission occurred in Sedgwick County, not Ellis County.
The State analogizes Jones to our present facts as follows: Jacobs in Ellis County was the victim of Coty’s actions in Sedgwick County, just as Allen County was the victim of Jones’ absconding in Missouri. Thus, the State argues that “the county in which the victim of .a crime is located when the crime occurs is a logical and sensible place for jurisdiction and venue to lie.” As we will discuss later, this policy argument is best left to our legislature, as has been the case in 21 other states where state legislatures have enacted special venue statutes.
In Boorigie, the defendant was charged in Montgomery County with first-degree murder and arson, stemming from the death of his estranged wife. While awaiting trial, Boorigie asked several people to help him find someone willing to confess to the crimes. In most cases, Boorigie offered money in exchange for assistance. Not surprisingly, all of Boorigie’s contacts refused. The State added charges of criminal solicitation to the pending murder and arson charges.
Two of the solicitation charges arose from conversations in the Elk County jail, where Boorigie was housed during part of the time he was awaiting trial in Montgomery County. The third charge related to a conversation that took place in Wilson County, while Boorigie was out on bond. Boorigie was convicted in Montgomery County of all of the charges.
On appeal, Boorigie argued that Montgomery County lacked jurisdiction over tírese three criminal solicitation charges because they arose from conversations that took place in other counties. But our Supreme Court determined that Montgomery County was an appropriate venue for the convictions because the criminal solicitations that took place in Elk and Wilson Counties related to the murder and arson crimes for which Boorigie was being prosecuted in Montgomery County. The Boorigie court held that because there was a “direct link between the Montgomery County criminal charges and the crimes committed in Elk and Wilson Counties, it is logical that Montgomery County was a proper venue for the prosecution of [Boorigie’s] solicitations for false testimony.” 273 Kan. at 24-25.
The facts in the present case are markedly different from those in Boorigie. The criminal solicitation charges against Boorigie would not have existed but for the original charges in Montgomery County. But in the present case, the crime charged against Coty did not arise from any prior criminal act that occurred in Ellis County.
In Womelsdorf, the most recent case cited by the State, the State charged the defendant in Anderson County with arson and insurance fraud in connection with a fire at Womelsdorf s home in Anderson County. Womelsdorf appealed her conviction for insurance fraud, arguing that she filed the insurance claim in Johnson County so Anderson County had no jurisdiction over the alleged crime. On appeal, the court determined that “the arson in Anderson County was requisite to the fraudulent insurance act in Johnson County. Under K.S.A. 22-2603 and the rationale of Boorigie, venue was proper in Anderson County.” Womelsdorf, 47 Kan. App. 2d at 318-19.
The State argues that the “requisite act” in the present case was Coty’s failure to obtain Jacobs’ consent to use his credit card information. But failing to get Jacobs’ consent was not a separate crime from the charge against Coty of credit card fraud the way insurance fraud was a separate crime from arson in Womelsdosrf, the way murder was a separate crime from criminal solicitation in Boorigie, and the way aggravated escape was a separate crime from felony theft in Jones.
The State’s argument rests on the notion that the failure to obtain Jacobs’ consent was an element of the underlying crime, which calls K.S.A. 2012 Supp. 21-5111(a) into play. We will next address that issue.
The State argues that criminal use of a financial card requires “[ujsing a financial card without tire consent of the cardholder.” K.S.A. 2012 Supp. 21-5828(a)(1). It claims that Coty’s failure to obtain Jacobs’ consent was an element of the crime. But this is not a case in which Coty called Jacobs in Ellis County to ask for permission to use the credit card and Jacobs refused. There is no evidence that Jacobs expressly denied consent. K.S.A. 2012 Supp. 21-5111(a) defines an “act” in our criminal code to include “a failure or omission to take action.” The State argues that the act of not getting Jacobs’ consent to use the card occurred in Ellis County, making Ellis County an appropriate venue under K.S.A. 2012 Supp. 21-5111(a).
In Kansas, several criminal statutes state that the act must be nonconsensual to be considered a crime. See, e.g., K.S.A. 2012 Supp. 21-5803(a) (criminal deprivation of property); K.S.A. 2012 Supp. 21-5807(a) (burglary); K.S.A. 2012 Supp. 21-5813(a)(1) (criminal damage to property). In the case of burglary, for example, K.S.A. 2012 Supp. 21-5807 defines the crime as entering into or remaining within a dwelling, building, structure, vehicle, etc., without authority with the intent to commit a felony, theft, or sexual battery therein. Using the State’s analysis, the act of not getting permission to enter the premises occurs where the owner of the premises is located so as to invoke criminal jurisdiction in the county where the owner resides. Thus, under the State’s theory, if a person in Baxter Springs owns a farm house near St. Francis which is burglarized, the burglar could be prosecuted in either Cheyenne County in the northwest corner of the state where the house is located or in Cherokee County in the southeast corner of the state where the owner resides. We find no support for such a notion.
But the State argues that because of the nature of credit card fraud cases such as this, we should adopt a venue rule that permits prosecution where the cardholder resides. The State argues:
“Modern technology enables criminals to accomplish much crime in the netherworld of cyberspace while never physically crossing traditional geographic boundaries that typically have defined criminal jurisdiction.
“The question presented here is fundamentally one of fairness, and in particular of fairness to society and the victims of cyberspace crimes: when a criminal utilizes modem technology such as the internet from an unknown and often unknowable location to commit fraud, causing harm to an identifiable victim in a specific location, does jurisdiction to prosecute the crime lie in the victim’s home county?”
Of course, these concerns do not apply to Coty. She was caught picking up the tickets in Sedgwick County, about 180 miles or so from where Jacobs lived. Sedgwick County was where the State contends Coty purchased the tickets. The tickets had been purchased on-line with a phone contact reference which was the same as Coty’s Sedgwick County telephone number. Here, Coty’s alleged act of using Jacobs’ credit card information was not from an unknown or unknowable location. The State alleged that Coty used Jacobs’ credit card information in Sedgwick County.
The State also argues that it is unfair to have the victim and the State’s witnesses travel to Sedgwick County to prosecute this case. But here the contraiy is true. Key witnesses for .the State, law enforcement officers from the Sedgwick County Sheriff s Department, had to travel from Sedgwick County to Ellis County for the preliminary hearing.
In any event, while the State’s policy concerns are worthy of serious consideration, these arguments should be directed to our legislature rather than to this court. Our role in government does not include engaging in and resolving such public policy debates. The legislatures in other states have addressed the issue and have enacted special venue statutes for these new types of crimes based on new technologies. We leave it to the Kansas Legislature to consider the wisdom of doing so in our state. See State v. Britt, 295 Kan. 1018, 1031, 287 P.3d 905 (2012).
In State v. Mayze, 280 Ga. 5, 622 S.E.2d 836 (2005), the Georgia Supreme Court considered the constitutionality of a special venue provision enacted by the Georgia Legislature as part of its identity fraud statute. Mayze obtained tire victim’s credit history in DeKalb County. The victim resided in Clayton County. Mayze was charged in Clayton County with identity fraud in violation of Ga. Code Ann. § 16-9-121 (2002). Pursuant to that statute, venue is proper where the victim “ ‘resides or is found, . . . regardless of whether the defendant was ever actually in such county.’ ” 280 Ga. at 5.
Mayze contended before the Georgia Supreme Court that the statute was unconstitutional in light of a provision in the Georgia Constitution that stated: “ ‘[A]ll criminal cases shall be tried in the county where the crime was committed . . . .’ Art. VI, Sec. II, Par. VI of the Georgia Constitution of 1983.” Mayze, 280 Ga. at 5-6. Mayze interpreted this to mean that identity fraud could be committed only in a county where the defendant obtained or recorded identifying information of the victim, or where the defendant accessed or attempted to access the resources of the victim; in Mayze’s case, DeKalb County.
The court rejected Mayze’s constitutional challenge, holding that Georgia could charge Mayze in the county where the victim re sided as provided for by the statute. 280 Ga. at 7-8. The Mayze court held:
“The extent of' our holding is that, when exercising its constitutional power to create crimes, the General Assembly is authorized to define identity fraud in such a way that, regardless of where the defendant may have accessed the records, the offense actually constitutes an unauthorized use of the personal information contained therein, which proscribed conduct occurs in the county where the information and the individual who is the subject thereof, rather than the underlying records themselves, are located.” 280 Ga. at 10.
Georgia’s Legislature is not alone in enacting special venue provisions in its identity theft laws. The Mayze court cited 20 other states in which state legislatures have enacted similar special venue provisions. 280 Ga. at 5.
The State argues that the analysis in Mayze used to support the constitutionality of the Georgia statute supports the creation of this special venue rule that would allow prosecution in the victim’s home county. (We say “special” rule because it would stand apart from the way we apply our venue statute in cases such as the burglary case we discussed earlier.) We do not take the path of judicially creating such a special venue rule. We leave that to our legislature.
We find no error in the district court’s determination that Ellis County was not the proper venue for the State to prosecute Coty for this crime.
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|
Leben, J.:
Katherine Davis stole goods from JC Penney, a retail merchant, and the district court ordered that she pay restitution to the merchant equal to the retail sales price of the items. Davis contends that the court should have awarded restitution only for the amount the merchant paid to buy the goods from its supplier.
But no evidence was presented in this case outlining any value other than the retail price of the goods, and no evidence showed that the recovery of that amount by the retailer would be inappropriate. Kansas statutes and caselaw emphasize that the district court has substantial discretion in determining the amount of restitution, and choosing the retail value of goods stolen from a retail merchant as the value for restitution in these circumstances is within the district court’s discretion. We therefore affirm its judgment.
Statutory Framework
Two similar statutes provide the district court its authority to order a convicted criminal defendant to pay restitution. We cite here to the statutes that were in effect when Davis was sentenced, K.S.A. 2010 Supp. 21-4603d and K.S.A. 21-4610, but the same provisions have found their way into statutes enacted as part of a general recodification of the Kansas criminal laws. See K.S.A. 2011 Supp. 21-6604(b)(1) and K.S.A. 2011 Supp. 21-6607(c)(2).
K.S.A. 2010 Supp. 21-4603d gives the district court general sentencing authority, and this statute provides that along with any other sentence that may be entered, “the court shall order the defendant to pay restitution.” K.S.A. 2010 Supp. 21-4603d(b)(l). As to amount, the statute provides that the restitution “shall include, but not be limited to, damage or loss caused by the defendant’s crime, unless the court finds compelling circumstances which would render a plan of restitution unworkable.”
K.S.A. 21-4610 gives the district court authority to order restitution as part of a probation order. It provides that “the court shall order” that the defendant “[m]ake reparation or restitution to the aggrieved party for the damage or loss caused by the defendant’s crime.” K.S.A. 21-4610(d)(l). As to amount, this statute provides that restitution be “in an amount and manner determined by the court.” K.S.A. 21-4610(d)(l). Once again, restitution must be ordered “unless the court finds compelling circumstances which would render a plan of restitution unworkable.” K.S.A. 21-4610(d)(1).
Here, as would often be the case, the district court made its restitution order both as part of its sentence and as a condition of the defendant’s probation. Nothing in the text of either of these statutes indicates that any different rules were intended to apply to the determination of restitution amounts in these two related situations (i.e., the sentence itself and the conditions of probation). Statutes on the same subject are considered “in pari materia” (in the same matter) and are to be interpreted to achieve consistent results whenever possible. In re Marriage of Takusagawa, 38 Kan. App. 2d 401, 411, 166 P.3d 440 (2007). We would expect, then, to be able to use the statutoiy text from either statute to guide us in concluding whether the district court has correctly determined the amount of restitution to be paid, which is the only disputed issue in our case.
Existing Caselaw Interpreting These Statutes
We can draw additional guidance in interpreting and applying these statutes from Kansas Supreme Court decisions on restitution ordered under the present statutoiy framework. Five cases provide substantial guidance: State v. Dexter, 276 Kan. 909, 80 P.3d 1125 (2003); State v. Hunziker, 274 Kan. 655, 56 P.3d 202 (2002); State v. Applegate, 266 Kan. 1072, 976 P.2d 936 (1999); State v. Allen, 260 Kan. 107, 917 P.2d 848 (1996); and State v. Beechum, 251 Kan. 194, 833 P.2d 988 (1992).
From these cases, we know that the starting point is generally the fair-market value of the stolen goods. See Hunziker, 274 Kan. at 664. But restitution can go beyond merely awarding the value of damaged or stolen property. Allen, 260 Kan. at 115. In Hunziker, for example, the court approved the award of an amount reimbursing a backhoe owner for work lost while the damaged backhoe wasn’t available for use. 274 Kan. at 664. In Beechum, the court approved the award of airfare for the murder victim’s 12-year-old son to travel from Kansas to New York to live with his father, along with the father’s lost wages for spending the day traveling on airplanes accompanying Iris son after the mother was murdered. 251 Kan. at 202-03.
Although restitution may go beyond property loss so as to include other losses, as Hunziker and Beechum illustrate, restitution should be provided only up to the amount of the victim’s loss, however characterized. See Hunziker, 274 Kan. at 663-64. The court provided two examples of costs not subject to restitution in Hunziker. There, the court overturned an award of the cost of touch-up paint for the backhoe when the full fair-market value of the backhoe had already been awarded in restitution, and the court overturned reimbursement of the amount the victim paid an attorney to provide advice and prepare exhibits regarding the victim’s losses. 274 Kan. at 664, 667-68; see Beechum, 251 Kan. at 203 (noting that “[n]ot all tangential costs incurred as a result of a crime should be subject to restitution”). As to the attorney fees, the court noted that there had been no need in Hunziker “to trace embezzled funds, recreate destroyed data, or recover stolen property.” 274 Kan. at 667-68. So the fees did not count toward the victim’s loss and could not be included in the restitution amount.
The court has given us guidance regarding comparisons between determining a restitution amount and determining damages for other purposes:
• First, we can draw only limited guidance from the legal rules generally applied in determining damages. In Hunziker, the court advised that “ ‘the rigidness and proof of value’ ” for damages in a civil-damages suit “ ‘does not apply in a criminal case.’ ” Rather, what’s required for restitution in a criminal case is that “ ‘tire court’s determination ... must be based on reliable evidence which yields a defensible restitution figure.’ ” 274 Kan. at 660 (quoting State v. Casto, 22 Kan. App. 2d 152, 153-54, 912 P.2d 772 [1996]).
• Second, “[t]he amount of restitution can be greater than the damages used to classify the crime.” Allen, 260 Kan. at 116. Thus, for example, there may be cases in which damages are calculated conservatively when determining whether the crime is a felony but for which a greater amount could be awarded in restitution.
• Third, although there are similar federal statutes regarding restitution in criminal cases, our Supreme Court has found them of limited usefulness since the federal statutes are much more detailed on this topic than are our Kansas statutes. Hunziker, 274 Kan. at 665-66; Applegate, 266 Kan. at 1077-78.
The final point of significance is that the district court exercises its discretion in determining the amount of restitution. Dexter, 276 Kan. at 912. There are legal limits, of course, as Hunziker demonstrates. But we are not applying rules as rigid as applied in determining civil damages. Hunziker, 274 Kan. at 660.
The extent of a trial court’s discretion was demonstrated in Ap-plegate. There, two people were felled and another injured in an auto accident in which the defendant was driving drunk and recklessly. Before the district court set the restitution amount, the heirs and the injured party settled all claims with the defendant’s auto insurance company for $100,000. Our Supreme Court held that the existence of a civil settlement didn’t preclude a further restitution award in the criminal case, but it concluded that the district judge did not abuse his discretion in finding that the civil settlement “satisfied the statutory requirement for restitution in the criminal proceeding.” 266 Kan. at 1079-80.
We will draw on these previous decisions, as well as the statutes, to determine whether the district court erred in its restitution order.
How the District Court Exercised Its Discretion
With this legal background in mind, let’s turn next to how the district court exercised its discretion in this case. In doing so, we first will summarize the evidence and arguments presented to the district court. Then we’ll consider its ruling.
The State presented the testimony of the JC Penney store manager, Sarah Louise Guinn. She said that the retail value of the items Davis stole was $1,168 and that the items weren’t in condition to be sold when they were recovered from Davis. Guinn testified a stolen suitcase had dirt and stains on it and that the clothing had a smoke smell; Davis was a smoker.
Under questioning by Davis’ attorney, Guinn conceded that $1,168 represented a retail price, not the cost of the goods to JC Penney. But no evidence was presented of any other specific value for the merchandise. Davis also testified at the restitution hearing, but her testimony mostly dealt with the condition of the items when they were recovered, not their retail value or the price JC Penney had paid to purchase the goods.
Based on this evidence, the State argued for restitution of $1,168. Davis’ attorney argued that JC Penney should only receive the cost of the goods, not the retail price. Davis’ attorney also noted Davis’ testimony that the suitcase hadn’t been damaged, that the smoke smell could have come from other JC Penney employees, and that some items hadn’t been fully described.
The district judge noted that it was “stuck with whatever information ... is presented by the parties,” and that the retail value was “the only figure I’ve got.” The court said that it “normally” wouldn’t award an amount that would include a profit for the re tailer, but that since it had only the $1,168 figure, it would enter a restitution order in that amount.
Standard of Review on Appeal
We begin our review of the district court’s decision by considering the standards that must guide us, generally known as the standards of review. The Kansas Supreme Court advised in Dexter that three different standards of review can apply to a district court’s determination of restitution. 276 Kan. at 912-13.
The first is the abuse-of-discretion standard, which generally applies to tire determination of the amount of restitution. 276 Kan: at 912. Under the most common application of that standard, a district court abuses its discretion only when no reasonable person would have taken the view adopted by the court. But it’s also an abuse of discretion if the district court’s decision is based on a factual or legal error. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).
The second Dexter standard tests the finding of causation—a finding that the crime actually caused the victim’s loss. There must be substantial evidence to support that causal link. 276 Kan. at 913.
The third Dexter standard is that we have unlimited review over any statutory interpretation that affects tire restitution determination. 276 Kan. at 913.
On appeal, Davis primarily argues that awarding anything more than the cost paid by JC Penney for these goods gives the merchant a windfall. Davis also argues that some deduction should have been made to recognize that the recovered items still had some value. Arguably, all three Dexter standards may be worth considering in examining these arguments on appeal.
Analysis
Review for Abuse of Discretion or Statutory-Interpretation Errors
Well consider die first (abuse of discretion) and third (statutory interpretation) Dexter factors together. After all, one way a judge can abuse his or her discretion is by making a legal error, and misinterpreting tire restitution statutes would qualify. So we consider together whether the judge here abused his discretion in the traditional manner, i.e., by making a decision no reasonable person would have made, or by making a legal error, i.e., misinterpreting the statute.
We find nothing unreasonable about adopting the retail value of the stolen merchandise for restitution purposes in this case when that was tire only value presented in evidence. If the district court has some discretion in determining the amount of restitution—and we know it does—then choosing the retail value is within that discretion when (a) that is tire only value in evidence and (b) no other evidence convincingly shows that an award of the retail value would be inappropriate. Those conditions are met here.
We add tire second condition—that no other evidence convincingly shows that an award of the retail value would be inappropriate—because we can imagine such a case. For example, let’s assume that one company, Company A, sells a single product to Company B. Company A buys the product at wholesale from a supplier and sells it at retail to Company B. Let’s also assume that Company A has a contract with Company B to sell a fixed quantity of the product each year. If a thief steals some of the product from Company A, and if Company A can simply replace that amount at its normal wholesale cost, then Company A’s loss is only the wholesale price, not the retail one—it hasn’t lost any sales to Company B.
But our case has no such evidence. In its absence, the district court has sufficient discretion to award the retail price if supported by the evidence that has been presented.
Still, even with no abuse of discretion on the traditional test (whether a reasonable person could agree with the district court), we must also examine the statutory language: Does the statute somehow prevent an award of tire retail value of goods stolen from a retail seller? We find that the answer is no.
In fact, the statutory language emphasizes the district court’s discretion. K.S.A. 21-4610, the statute providing for restitution as a condition of probation, notes that restitution shall be “in an amount and manner determined by the court.” Neither K.S.A. 21-4610 nor K.S.A. 2010 Supp. 21-4603d, the sentencing statute, references specific methods of determining value. K.S.A. 21-4610 does limit restitution to “the damage or loss caused by the defendant’s crime,” though K.S.A. 2010 Supp. 21-4603d provides broad authority for restitution “not. .. limited to[] damage or loss caused by the defendant’s crime.”
By noting that language, we do not suggest that there need be no causal connection between the restitution amount and the crime. After all, these statutes should be read together, and our Supreme Court has held that only losses caused by tire crime may be compensated through restitution and that some losses are too tangential to be assessed. State v. Sammons, 276 Kan. 574, Syl., 78 P.3d 470 (2003); Hunziker, 274 Kan. at 664, 667-68; Beechum, 251 Kan. at 202-03. Even so, the statutory language suggests broad authority for the district court in picking the appropriate value for a given case.
Review for Substantial Evidence
We turn then to the final Dexter standard for our appellate review—whether substantial evidence supports the finding of causation between the crime and the victim’s loss. The evidence is pretty straightforward in demonstrating causation. The store manager, Ms. Guinn, testified that each of the items Davis stole from the store was damaged, soiled, previously worn, or smelled like smoke, which made it impossible to return the items to store shelves for sale. She also testified that the retail value of the items was $1,168.
It’s true that the prosecutor could have presented even more evidence to support causation, especially in establishing the retail value as the proper one for restitution. No evidence was presented to demonstrate that these items were likely to have been sold or what might have been done with them if they weren’t sold within a reasonable time frame. But surely a prosecutor is not required to eliminate every possibility that another value might be more appropriate.
Even in a civil trial for damages, the plaintiff need only show “a reasonable basis for computation” of the damages so that the fact-finder can “arrive at an approximate estimate” of them. Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, Syl. ¶ 7, 266 P.3d 516 (2011). But restitution hearings are not civil-damages trials; they are add-on evidentiary hearings at the end of a criminal proceeding that has focused mainly on the question of guilt or innocence. Accordingly, our Supreme Court has said that the rules for proving damages in a restitution hearing are not as strict, and the district court’s value determination ultimately must be based on reliable evidence that leads to a defensible figure. Hunziker, 274 Kan. at 660. That standard was met in Davis’ case.
Davis also argued on appeal that some deduction should have been made to the restitution amount to recognize that the recovered items still had some value. We need to evaluate this argument only to determine whether substantial evidence supports the district court’s ruling. By awarding the full retail value with no deductions, the district court impliedly found that the recovered goods had no value—and that’s supported by the store manager’s testimony. She testified that all of the items were "unsellable” and that the loss was $1,168. Since we do not reweigh the evidence on appeal, Johnson v. Westhoff Sand Co., 281 Kan. 930, 954, 135 P.3d 1127 (2006), we have no authority to conclude that the recovered items had some specific value and to deduct that from the restitution amount.
Two Recent Opinions from Our Court
Before we close this opinion, we should comment on two recent opinions of our court that might suggest a different result here: State v. Behrendt, 47 Kan. App. 2d 396, 274 P.3d 704 (2012), petition for rev. filed May 10, 2012; and State v. Hall, 45 Kan. App. 2d 290, 247 P.3d 1050 (2011), rev. granted September 23, 2011. Neither is officially precedential at this point because a petition for review by our Supreme Court was granted in one and a petition for review is pending in the other. See Supreme Court Rule 8.03(i) (2012 Kan. Ct. R. Annot. 72). But these are published opinions of our court, and Davis has cited to Hall in her appellate brief. Accordingly, we should explain why we have not found their reasoning decisive in Davis’ case.
In Hall, the defendant had stolen veterinary services and products from her employer, a veterinary clinic. Our court said that restitution normally should be set at fair-market value of the stolen items, 45 Kan. App. 2d at 301, but concluded that the wholesale cost of the items should have been used in this case. 45 Kan. App. 2d at 304. It may have been significant that Hall’s employer “had a policy of providing discounted veterinaiy care and products for employees’ pets.” 45 Kan. App. 2d at 292. But to the extent that Hall stands for the broader proposition that a retail merchant can only recover its purchase price—not its retail selling price—for goods stolen from the merchant, see 45 Kan. App. 2d 290, Syl. ¶ 8, we find the primary authority relied upon in Hall unpersuasive when applied in the restitution context. That primary authority was a 1930 United States Supreme Court case dealing with the calculation of damages in a civil lawsuit, 45 Kan. App. 2d at 303 (citing Illinois Cent. R. Co. v. Crail, 281 U.S. 57, 50 S. Ct. 180, 74 L. Ed. 699 [1930]). But as we’ve previously noted, our Supreme Court has said that the rules applied in determining civil damages are of limited use in determining the rules to be applied in determining restitution amounts. Hunziker, 274 Kan. at 660.
The plaintiff in the Illinois Central Railroad case was a company that sold coal, and it bought coal regularly to have supplies on hand to sell. One shipment that it had paid for was short 5,500 pounds of coal, and the Court had to determine whether the proper damage figure was the cost the plaintiff had paid (the wholesale price) or the price it would have received in selling the coal (the retail price). Since the cost for the company to purchase coal hadn’t increased after it received the short shipment, and it lost no sales before it received more shipments, the United States Supreme Court ruled drat it could only recover the price it had paid, not what it might later have sold the coal for. Illinois Cent. R. Co., 281 U.S. at 63-65. Although it arose in the context of a civil lawsuit, the Illinois Central Railroad case was much like the hypothetical situation we discussed earlier, in which the crime victim sells a fixed quantity of goods, replaces die stolen goods at cost, and loses no sales. In that context, awarding anything more tiran die merchant’s cost to purchase the goods—the wholesale price—would be excessive. But there is no evidence in our case about whetirer JC Penney lost sales, and we see no reason to limit a retail seller’s restitution as a matter of law to the seller’s initial cost in purchasing the items.
In Behrendt, the other recent opinion we’ll consider, the defendant had stolen beer from a wholesale beer distributor. Our court concluded that restitution could be awarded only for the cost paid by the crime victim, not the price at which it had planned to sell the beer to a tavern or liquor store. 47 Kan. App. 2d at 403. The Behrendt court relied upon three precedents to support its ruling: Hall, Illinois Central Railroad, and United States v. Cummings, 798 F.2d 413 (10th Cir. 1986). We have already discussed Hall and Illinois Central Railroad, which we do not find persuasive. But the Cummings case, in our view, supports the decision we have made in Davis’ case, not the result in Behrendt.
The Cummings court said that when merchandise is stolen from a merchant, “market value is the sales price the merchant would have obtained for the merchandise.” 798 F.2d at 416. It concluded that where the crime victim is a retail merchant, the retail sales price is the market value, and where the crime victim is a wholesale merchant, the wholesale price is the market value. 798 F.2d at 416. In each case, the Cummings court adopted the price at which the crime victim/merchant was to have sold the stolen property to another. For example, a retail merchant buys goods at wholesale and sells them at retail; so the Cummings court said the retail value was the market value.
The Behrendt court seemed to apply Cummings by saying that tire crime victim, a wholesale merchant, should receive restitution in the market value, which “would be its wholesale price.” 47 Kan. App. 2d at 402. But the court then said that this would be “the amount it paid for its beer inventory, not the amount it would receive by selling that inventory.” 47 Kan. App. 2d at 402-03. That would not be the result called for under Cummings. After all, a wholesale merchant buys goods at a price less than wholesale and sells them at the wholesale price; otherwise, there would be no profit. Had Cummings been applied in the Behrendt case, the crime victim there would have been able to receive restitution in an amount representing the price at which the merchant would have sold the beer at wholesale to retail taverns or liquor store, not the price at which it purchased the goods from a manufacturer or other supplier.
Cummings is of limited help anyway, because it dealt with determining property value for the purpose of classifying a crime, not for restitution; our Supreme Court has said that the amount of restitution can be greater than the damages used to classify the crime. Allen, 260 Kan. at 116. But even in the context of classifying a crime, the Cummings court would generally value items at retail when stolen from a retail merchant and at wholesale when stolen from a wholesale merchant. In each case, the value chosen is the price át which tire crime victim would have sold the goods.
Conclusion
Katherine Davis stole goods from a retail merchant, and the district court awarded restitution in the amount of the retail sales price for those goods. Both .caselaw and the Kansas restitution statutes emphasize that the district judge has substantial discretion in determining restitution amounts. In this case, the district court didn’t abuse its discretion when it chose the retail sales price as the restitution amount.
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Green, J.:
Bank of America, the mortgage note holder, brought an action to foreclose on Dennis Inda’s mortgage after he defaulted on his loan. The trial court granted Bank of America’s motion for summaiy judgment, finding that Bank of America was the holder of the note (Note) and the mortgage (Mortgage) and that Inda had defaulted on the loan. We affirm.
On March 30, 2007, Inda executed and delivered the Note to Pulaski Bank (Pulaski), promising to pay Pulaski the principal sum of $244,000 plus interest in monthly installments. As security for the Note, Inda and his wife, Jacque Gichuki, signed the Mortgage on their Olathe home, which was filed with the Johnson County register of deeds on April 3, 2007.
The Mortgage defines the Mortgage Electronic Registration Systems, Inc. (MERS), a separate corporation, as the mortgagee and states that MERS is acting “solely as nominee” for Pulaski and Pulaski’s successors and assigns.
The Note was endorsed by Pulaski to Countrywide Bank, N.A. Countiywide Bank, FSB, formerly known as Countiywide Bank N.A., endorsed the Note to Countiywide Home Loans, Inc. Countrywide Home Loans, Inc., then endorsed the Nóte “in blank.”
Inda challenged Bank of America’s standing to foreclose.
Inda eventually defaulted on the Note, so on Januaiy 25, 2010, Bank of America filed the foreclosure action which is the underlying subject matter of this case.
Inda challenged Bank of America’s standing to foreclose arguing that Bank of America was not the owner of the Note. Inda maintained that Bank of America was simply the servicer of the Note and not tire owner; therefore, it did not have standing to foreclose. Inda further contended that Bank of America committed fraud by alleging that it was the owner of the Note at times while also alleging that it was the servicer of the Note.
Bank of America primarily responded that it had standing to foreclose based simply on its holding of both the Note and the Mortgage. To show its interest in the Note, Bank of America provided the trial court with the original Note which contained the three previous endorsements showing that the last endorsement was “in blank.” Moreover, to show its interest in the Mortgage, Bank of America provided tire trial court with the assignment of the Mortgage to BAC Home Loans Servicing, LP., as well as the Certificate of Merger of BAC Home Loans Servicing, LP., into Bank of America. Bank of America also informed the trial court that it had sold its beneficial interest in the Note to Freddie Mac, making Freddie Mac the owner of the Note, but that Bank of America continued to possess the Note.
The trial court held Bank of America had standing to foreclose.
Following a hearing on the parties’ competing motions for summary judgment, during which the sole issue argued was Bank of America’s standing to foreclose, the trial court entered judgment in Bank of America’s favor. In support, the trial court reasoned that Bank of America was the holder of the Note and it therefore had the authority to enforce the Note and the Mortgage. Upon the trial court’s denial of his motion to set aside judgment, Inda filed this pro se appeal.
Before we can address Inda’s arguments, we need to address a jurisdiction argument raised by Bank of America. Bank of America argues that we do not have jurisdiction to consider whether the trial court erred in granting summary judgment in favor of Bank of America because Inda did not timely appeal that judgment. Bank of America notes that under K.S.A. 2012 Supp. 60-2103(a) an appeal must be made within 30 days after the judgment, unless there was a posttrial motion filed that tolled the time to appeal. Bank of America contends that Inda’s posttrial motion was not one of the motions that extended the time to appeal and, therefore, Inda failed to timely appeal the grant of summary judgment in favor of Bank of America. Bank of America maintains that the only judgment properly before this court is the judgment denying Inda’s posttrial motion filed under K.S.A. 2012 Supp. 60-260.
As Bank of America properly states, a timely posttrial motion stops the appeal time from running. See State ex rel. Secretary of SRS v. Mayfield, 25 Kan. App. 2d 452, Syl. ¶ 4, 966 P.2d 85 (1998). The time starts running again in its entirety on the date of entry of the order ruling upon the posttrial motion. K.S.A. 2012 Supp. 60-2103(a). K.S.A. 2012 Supp. 60-2103(a) lists the only timely post-trial motions that extend the time for appeal: (1) renewal of motion for judgment as a matter of law under K.S.A. 2012 Supp. 60-250(b); (2) motion to amend or make additional findings of fact under K.S.A. 2012 Supp. 60-252(b); (3) motion for new trial other than motions for new trial based on newly discovered evidence under K.S.A. 2012 Supp. 60-259; and (4) motions to alter or amend the judgment under K.S.A. 2012 Supp. 60-259(f). Motions to reconsider are generally treated as motions to alter or amend the judgment under K.S.A. 2012 Supp. 60-259(f). Exploration Place, Inc. v. Midwest Drywall Co., 277 Kan. 898, 900, 89 P.3d 536 (2004). Moreover, a K.S.A. 2012 Supp. 60-260 motion for relief from judgment does not extend the time for appeal. Giles v. Russell, 222 Kan. 629, 632, 567 P.2d 845 (1977); see State ex rel. Secretary of SRS v. Keck, 266 Kan. 305, 969 P.2d 841 (1998).
In this case, Inda filed a posttrial motion entitled “Defendant’s Motion to Set Aside Summary Judgment.” The motion states that Inda seeks relief from judgment under K.S.A. 2012 Supp. 60-260. As stated earlier, K.S.A. 2012 Supp. 60-260 does not extend the time for appeal. Nevertheless, the content of the motion, not the heading, determines the type of motion, and pro se motions are to be liberally construed. See State v. Kelly, 291 Kan. 563, 565, 244 P.3d 639 (2010); In re Marriage of Hansen, 18 Kan. App. 2d 712, 714, 858 P.2d 1240 (1993).
In denying the motion, the trial judge stated:
“[T]hese are not the kind of arguments that are available to a party under K.S.A. 60-260. Which is a motion to set aside a judgment, or relief from judgment or order, for some specific reasons. None of those reasons are advanced to the Court today. So if I am to take tire—treat this really as a K.S.A. 60-260 motion, there’s really no basis for it.
“I looked at whether or not this might be some sort of a reconsideration motion under K.S.A. 60-259, thinking that perhaps we don’t get too hung up over what people call their papers. We try to look at what they’re really trying to accomplish and see if drat provides them an opportunity for relief.
“I don’t really think this is a motion under [K.S.A. 60-]259. I think you’re really—what you’re really trying to do is, you’re really trying to bring to my attention some points that you think are error in the decision that I made on the summary judgment motion. . . .
“The Court feels, in this instance, however, that what you believe to be errors, were not errors. The Court is satisfied that it made the correct ruling on tire points that you have raised, and that your motion for relief should be denied. And is denied.”
Considering the motion and the comments made by the trial judge, we determine that under K.S.A. 2012 Supp. 60-260, Inda’s motion could be considered a motion to reconsider or motion to alter or amend die judgment. In his motion, Inda does not raise any new arguments; he simply reiterates his summary judgment arguments and argues that the trial court erred in granting summary judgment. Thus, because this motion fits within one of the exceptions diat extends the time to appeal, Inda’s notice of appeal was timely filed. Also, although Inda filed his notice of appeal 8 days before die trial court filed the order denying his posttrial motion, but after the trial court announced its judgment on die order, his notice of appeal is still timely under Kansas Supreme Court Rule 2.03 (2012 Kan. Ct. R. Annot. 11).
As a result, die issues of granting summary judgment in favor of Bank of America and the denial of Inda’s posttrial motion are botii properly before this court. Nevertheless, we will not address whether the trial court properly denied Inda’s posttrial motion because Inda has failed to brief this issue. An issue not briefed by an appellant is deemed waived and abandoned. See State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011).
Did the trial court err in granting summary judgment in favor of Bank of America?
Standard of review
The standards for granting summary judgment are well known. When the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. On appeal, the same rules apply; summary judgment must be denied if reasonable minds could differ as to the conclusions drawn from the evidence. Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011). In addition, to the extent this case involves a jurisdictional question, that being whether Bank of America has standing to bring this foreclosure action, our review is unlimited. Board of Sumner County Comm’rs v. Bremby, 286 Kan. 745, Syl. ¶ 1, 189 P.3d 494 (2008).
The elements of a mortgage foreclosure action
“The main purpose of a mortgage is to insure the payment of the debt for which [it] stands as security; and foreclosure is allowed when necessary to carry out that objective.” United States v. Loosley, 551 P.2d 506, 508 (Utah 1976). Therefore, in order to grant summary judgment in a mortgage foreclosure action, the trial court must find undisputed evidence in the record that the defendant signed a promissory note secured by a mortgage, that the plaintiff is the valid holder of the note and the mortgage, and that the defendant has defaulted on the note. See Cornerstone Homes v. Skinner, 44 Kan. App. 2d 88, 97-98, 235 P.3d 494 (2010). So in this case, if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact regarding (1) Bank of America’s beneficial interest in the Note signed by Inda; (2) Bank of America’s beneficial interest in the Mortgage signed by Inda and his wife to secure the Note; and (3) a default on the Note by Inda, then Bank of America is entitled to judgment as a matter of law.
It is undisputed that Inda is in default on the Note
The third condition, or element, for foreclosure is met on the undisputed record facts. Inda is in default on the Note. Although Inda denied the later default, he admitted that the last payment on tire Note was made on November 2, 2009, which constituted a default. This admission by Inda is sufficient to show that Inda was in default on the Note.
The issue centers on Bank of America’s interest in the Note and the Mortgage
The main issue here is whether the record supports the trial court’s finding that Bank of America was the undisputable holder of the Note and therefore summary judgment was proper on the issue of its standing to foreclose on the Mortgage as collateral for the Note.
Inda argues that Bank of America is merely the servicer of the Note and is not the actual owner of the Note or the holder of the Note. Inda maintains that Bank of America is not the beneficial owner of the Note because it sold its interest in the Note to Freddie Mac and thus is now merely a servicer without standing to bring a foreclosure action. Inda further argues that Bank of America has not produced any evidence that Freddie Mac has authorized Bank of America to act on its behalf in seeking foreclosure.
On the other hand, Bank of America contends that it is the holder of the Note. Bank of America admitted that although Freddie Mac owned the Note, Bank of America was in possession of the Note and was therefore the holder of the Note.
In Kansas, a note is a negotiable instrument which is subject to Article 3 of the Kansas Uniform Commercial Code (UCC), K.S.A. 84-1-101 et seq. K.S.A. 2012 Supp. 84-3-104. Under K.S.A. 84-3-301, a person entitled to enforce an instrument can be any of the following:
“(a) the holder of tire instrument, (b) a nonholder in possession of the instrument who has the rights of a holder, or (c) a person not in possession of the instrument who is entitled to enforce die instrument under K.S.A. 84-3-309 or 84-3-418(d). A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.” (Emphasis added.)
“ ‘Holder’ ” means a “person in possession of a negotiable instrument that is payable either to bearer or to an identified person [who] is the person in possession.” K.S.A. 2012 Supp. 84-1-201(21)(A).
“ ‘[A] person who is a holder remains a holder although that person has made an assignment of a beneficial interest therein.’ [Citation omitted.] ‘Consequently, the payee in possession of a note is the holder and may bring suit on the note even though the payee had already assigned the note as the holder of an instrument whether or not he is the owner may . . . enforce payment in his own name.’ [Citation omitted.]” In re Martinez, 455 B.R. 755, 763 (Bankr. D. Kan. 2011).
Further, under K.S.A. 84-3-205(b), like in this case, a note can be endorsed “in blank,” which means that the instrument becomes payable to the bearer and may be negotiated by transfer of possession alone until specifically endorsed.
Based on these provisions of the UCC, Bank of America was entitled to enforce the Note against Inda upon a showing (1) that the Note was made payable to Bank of America or was endorsed in blank and (2) that Bank of America remained in possession of the note.
In this case, Inda signed a promissory note to Pulaski, secured by a real estate mortgage that he and his wife both gave to MERS as nominee of Pulaski. Documents submitted to the court show that the Note was thereafter endorsed to Countrywide Bank, N.A.; Countrywide Bank, FSB, formerly known as Countrywide Bank, N.A., endorsed the Note to Countrywide Home Loans, Inc.; and Countrywide Home Loans, Inc., endorsed the Note “in blank.” We also note that Bank of America presented the original Note to the trial court.
As a result, Bank of America is the holder of the Note because Bank of America presented the original Note to the trial court, which showed the three previous endorsements, with the last endorsement made “in blank.” Moreover, as stated earlier, a person may be entitled to enforce an instrument even though the person is not the owner of the instrument. K.S.A. 84-3-301; see also In re Martinez, 455 B.R. at 763 (the fact that a holder is not the owner who is entitled to keep the proceeds for his or her own personal use does not affect the holder s right as holder to sue on the instrument). Therefore, Bank of America had the authority under the UCC to enforce the Note even though it had sold the beneficial interest in the Note to Freddie Mac. This was true regardless of whether Freddie Mac expressly authorized Bank of America to enforce the Note.
The next issue we must determine is whether Bank of America had the authority to enforce the Mortgage. Under Kansas mortgage law, because Bank of America was the holder of the Note, Bank of America was also the holder of the Mortgage. Generally, the mortgage follows the note. See Kurtz v. Sponable, 6 Kan. 395, 397 (1870) (stating that “[ujnder our laws, the mortgage is but appurtenant to the debt; a mere security; and, under ordinary circumstances, whoever owns the debt, owns the mortgage”); see K.S.A. 2012 Supp. 84-9-203(g). Therefore, a perfected claim to the note is equally perfected as to the mortgage. See Federal Land Bank of Wichita v. Krug, 253 Kan. 307, 314, 856 P.2d 111 (1993).
In this case, the Mortgage stated that it was held by MERS “solely as nominee” for Pulaski and Pulaski’s successors and assigns. Bank of America furnished the court with an assignment of the Mortgage to BAC Home Loans Servicing, LP., as well as the Certificate of Merger of BAC Home Loans Servicing, LP., into Bank of America. Thus, Bank of America has sufficiently proven that it was the successor to the Mortgage; therefore, it had the authority to enforce the Mortgage.
Thus, because the record conclusively establishes that at all times Bank of America was the holder of the Note executed by Inda, that Bank of America was the successor to the Mortgage, and that Inda was in default on the Note, Bank of America was entitled to summary judgfnent on its mortgage foreclosure action as a matter of law.
Inda’s remaining claims
In addition to the appropriateness of the trial court’s granting of summary judgment, Inda raised several other issues.
Fraud
Next, Inda argued that Bank of America committed fraud by asserting that it was the holder of the Note. Inda contends that by claiming to be the holder of the Note, Bank of America is in contravention in its agreement with the owner, Freddie Mac.
The elements required to sustain an action for fraud include: “[1] an untrue statement of fact, [2] known to be untrue by the party making it, [3] made with the intent to deceive or with reckless disregard for the truth, [4] upon which another parly justifiably relies and [5] acts to his or her detriment.” ’ ” Mortgage Electronics Registration Systems v. Graham, 44 Kan. App. 2d 547, 555, 247 P.3d 223 (2010) (quoting Bomhoff v. Nelnet Loan Services, Inc., 279 Kan. 415, 422, 109 P.3d 1241 [2005]; PIK Civ. 4th 127.40).
Although the existence of fraud is normally a question of fact, when a plaintiff fails to present any evidence of an essential element of his or her claim in responding to motion for summary judgment, “ ‘there can be “no genuine issue as to any material fact,” since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial/ ” Crooks v. Greene, 12 Kan. App. 2d 62, 64-65, 736 P.2d 78 (1987) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 [1986]).
■ The untrue statement of fact that Inda relies on is the statement that Bank of America is the holder of the Note. As explained earlier, we found this statement to be true; therefore, Inda’s fraud argument fails on the first element. When a plaintiff lacks evidence to establish an essential element of his or her claim, summary judgment is appropriate. Graham, 44 Kan. App. 2d at 555. Therefore, the trial court properly granted summary judgment on Inda’s fraud claim.
Deceptive acts and practices
Additionally, in Inda’s brief, he contends that Bank of America engaged in deceptive acts or practices, but he failed to present any facts or cite any authority to support tire allegation. Instead, Inda broadly suggested that “[t]he consent order and the servicing guides, outline several practices that tire plaintiff [Bank of America] should have adhered to.” Again, issues not briefed are deemed abandoned. See McCaslin, 291 Kan. at 709.
Clean hands
Inda also contends that the equitable doctrine of clean hands bars Bank of America’s motion for summary judgment concerning its foreclosure action. Inda maintains that he was enticed into entering into a loan modification and was told to stop making mortgage payments until his modification was either approved or denied. The doctrine of “clean hands” is applied sparingly and only to “willful conduct which is fraudulent, illegal or unconscionable” that “shockfs] the moral sensibilities of the judge.” Green v. Higgins, 217 Kan. 217, 221, 535 P.2d 446 (1975). Here, there is no evidence that Bank of America’s conduct was fraudulent, illegal, or unconscionable. Thus, the doctrine of clean hands does not apply here.
Kansas Supreme Court Rule 141
Finally, Inda argues that the trial court erred in granting summary judgment in favor of Bank of America because Bank of America’s motion did not comply with Kansas Supreme Court Rule 141 (2012 Kan. Ct. R. Annot 247). Bank of America concedes that the trial court stated that both parties failed to fully comply with Rule 141. Bank of America notes that the trial court stated that it would hear the motions nevertheless. Bank of America further contends that it substantially complied with Rule 141, and any failure to comply with Rule 141 constituted harmless error; therefore, the trial court’s grant of summary judgment in Bank of America’s favor should be upheld.
During the hearing on Inda’s motion for summary judgment, the trial judge stated:
“In some of your [Bank of America’s] papers, both in the motion and in your reply to Mr. Inda’s motion for summary judgment, you also failed to comply with Rule 141, and failed to set out clearly, make the statement that they were statements were controverted, and when controverted, failed to set out the facts as you assert them to be with precise reference.
“So both of you have failed to comply with Rule 141 of die Supreme Court. . . And a way to deal with . . . these motions . . . would have been simply to cite that rule and to deny both of your motions. . . .
“But I chose not to do that.... I prefer to hear your arguments and rule on the substance of your arguments in this particular case.”
As recognized in McCullough v. Bethany Med. Center, 235 Kan. 732, 736, 683 P.2d 1258 (1984), the purpose of Rule 141 is to identify “what facts are or are not controverted” or “on what evidence the parties rely.” Our Supreme Court has stated that a technical violation of Rule 141 does not automatically result in judgment for the opposing party. See City of Arkansas City v. Bruton, 284 Kan. 815, 836-37, 166 P.3d 992 (2007). Also as held in Calver v. Hinson, 267 Kan. 369, 377-78, 982 P.2d 970 (1999), substantial compliance with Rule 141 can be enough.
Inda would have this court reverse the entry of summary judgment on the ground that the trial court considered Bank of America’s motion for summary judgment despite its having failed to comply with Rule 141, irrespective of harm or substantial compliance. Here, clearly the trial court found that Bank of America substantially complied with Rule 141. After reviewing the motions, we hold that any Rule 141 violations here did not prevent the trial court from granting summary judgment in favor of Bank of America.
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Green, J.:
In this defamation case, Stephen E. Purdum sued his former wife, Katherine C. Harcsar, for allegedly libelous statements she made to the Archdiocese of Kansas City in Kansas. These alleged defamatory statements were made to the Archdiocesan Tribunal when Harcsar sought to annul her sacramental marriage to Purdum. Harcsar moved to dismiss Purdum’s defamation action under K.S.A. 60-212(b)(6) for failure to state a claim upon which relief can be granted. She maintained that because the statements were made in foe context of the annulment action, they were absolutely privileged as part of a “quasi-judicial proceeding.” Before ruling on Harcsar’s motion to dismiss, the trial court, with the parties’ consent, solicited the Archdiocese for input as amicus curiae.
The Archdiocese submitted an amicus brief in favor of dismissal, although on somewhat different grounds. It argued that the defamation action should be dismissed under K.S.A. 60-212(b)(1) for lack of subject matter jurisdiction because it impermissibly interfered with the free exercise of religion under the First Amendment to the United States Constitution, that the statements were absolutely privileged, and that the suit ran afoul of the church autonomy doctrine. The Archdiocese further argued that church autonomy doctrine prevented the courts from reviewing or interfering with church affairs that involve faith, doctrine, governance, and policy.
When foe trial court denied Harcsar’s motion to dismiss, foe Archdiocese moved to intervene and to become a party in foe action. In its motion to intervene, the Archdiocese argued that foe church autonomy doctrine prevented foe trial court from exercising subject matter jurisdiction over the action. After reviewing foe briefs and hearing arguments, the trial court again rejected the Archdiocese’s argument based on the church autonomy doctrine and also denied its motion to intervene. In rejecting the church autonomy doctrine, the trial court recognized that no claims were made against the church, that the statements about Purdum’s mental condition were secular in .nature, and that determining tire truth or falsity of such statements would not require interpretation of ecclesiastical doctrine or other such entanglement with the church. Nevertheless, the trial court held that the alleged defamatory statements were made in the context of a written statement to the Archdiocese, an activity that was “absolutely privileged as made pursuant to the defendant’s First Amendment right to, Free Exercise of her religion.” As a result, tire trial.court dismissed the defamation action against Harcsar for lack of subject matter jurisdiction under K.S.A. 60-212(b)(1).
On appeal, Purdum argues that the trial court erred by holding that the statements made in Plarcsar’s petition for annulment were absolutely privileged. Thus, he asserts that the trial court erred by finding that it lacked subject matter jurisdiction as a result of absolute privilege. This court agrees. Nevertheless, when a trial court reaches the correct result, its decision will be upheld even though it relied upon the wrong ground or assigned erroneous reasons for its decision. Robbins v. City of Wichita, 285 Kan. 455, 472, 172 P.3d 1187 (2007).
Here, Harcsar’s alleged defamatory statements are inextricably part of the Archdiocesan Tribunal. Moreover, Purdum conceded that the only defamatory publication allegedly made by Harcsar was made to the Archdiocesan Tribunal, within its ecclesiastical procedure. Harcsar raised defenses of consent and qualified privilege to the allegedly defamatory statements she made to the Archdiocesan Tribunal. Purdum’s suit thus would require the civil courts to interpret canon law concerning Plarcsar’s consent defense. Harcsar’s consent defense and her qualified privilege defense would excessively entangle the civil courts in a matter that the First Amendment to the United States Constitution forbids. Because tire Establishment Clause of the First Amendment precludes jurisdiction over the subject matter of Purdum’s defamation action, this court determines that the trial court properly concluded drat the First Amendment precluded its exercise of subject matter' jurisdiction in this defamation action.
Facts
As stated earlier, the trial court dismissed Purdum’s defamation action against Harcsar for lack of subject matter jurisdiction under K.S.A. 60-212(b)(1). The parties did not dispute the material facts upon which the trial court relied in dismissing the case, nor do they dispute those factual assertions for purposes of this appeal.
Purdum and Harcsar were married on April 25, 1993, in New Jersey. Before marrying, Purdum and Harcsar completed and signed the prenuptial inquiry prescribed by the Catholic Church. Moreover, in this inquiry, they both stated that they understood and consented to the obligations for a Catholic marriage. Under paragraph “44” of Exhibit C-l, it addressed Purdum’s and Harc-sar’s consent to the authority of the Catholic Church over their marriage:
“Both spouses assent to the authority of the Catholic Church over their marriage by their free request to be married within the Catholic Church. This assent endures if one or both of the spouses later asks the Church to declare the invalidity of tire same marriage. In other words, if the marriage is sacramentally celebrated within the Catholic Church, the Catholic Church has jurisdiction over not only the preparation for and liturgical celebration of the sacrament of marriage, it also has jurisdiction over the judicial process to discern whether there were defects in die marriage that warrant an ecclesiastical declaration of invalidity. Nonetheless, participation in the tribunal process is voluntary and uncoerced.”
The record indicates that “ when [a] non-Catholic spouse voluntarily enters into the process of spiritual and religious preparation for sacramental marriage, that person freely submits to the jurisdiction of the Church as regards the celebration and oversight of the sacrament of marriage.’ ” He or she is told about the jurisdiction of the church. For example, under Purdum’s prenuptial inquiry, he was asked the following question: “Are you giving your consent to this marriage freely, without force or fear of any kind?” Purdum answered “Yes” to that question. At the end of Purdum’s prenuptial inquiry, a priest/deacon and Purdum signed the inquiry. The priest/deacon affirmed that he had instructed Purdum “according to the prescripts of Canon Law and the regulations of the Diocese.”
Purdum filed for divorce in Johnson County in late 2001, and the divorce was granted about 6 years later. Harcsar apparently wished to remarry in a Catholic ceremony. The Catholic Church will allow a later marriage when an annulment is granted for any previous marriage. Thus, before Harcsar could remarry in a Catholic ceremony, she needed to obtain an annulment of her marriage to Purdum.
In February 2009, Harcsar filed a petition for annulment with the Archdiocesan Tribunal. As provided in the mies for the Tribunal, the Archdiocese sent a copy of the petition to Purdum and informed him that he could participate in the annulment proceeding if he wanted. Persons affiliated with the Archdiocese read the petition in connection with the annulment process. The petition and the process are confidential. Only church officials directly involved in that process would be privy to the information contained in the petition.
In his civil suit, Purdum alleged that the statements Harcsar made about him in her annulment petition were false and defam-atoiy. His amended petition described briefly the nature of the alleged defamation as an assertion that he had been “diagnosed as bipolar.” The suit contends that Harcsar knew those statements to be false. The amended petition made no claim against the Archdiocese or any of its employees, agents, or members of tire Tribunal.
With the consent of Purdum and Harcsar, the trial court invited the Archdiocese to appear in the case as amicus curiae because tire dispute arose out of an annulment of a sacramental marriage. In tlrat capacity, the Archdiocese filed a brief urging dismissal of the suit based on privilege and church autonomy. The Archdiocese tiren moved to intervene as a party as a matter of right under K. S. A. 60-224(a)(2). As an exhibit to the request to intervene, the Archdiocese submitted a motion to dismiss Purdum’s suit under K.S.A. 60-212(b)(1) for lack of subject matter jurisdiction. Harcsar endorsed and incorporated the arguments made in tire Archdiocese’s motion to dismiss as her own arguments. The motion to dismiss focused on various theories grouped under the church autonomy doctrine. The trial court ultimately denied the Archdiocese’s re quest to intervene but ruled on the substantive arguments that the Archdiocese had raised for dismissing Purdum’s suit. In its memorandum decision, the trial court ruled that church autonomy doctrine did not warrant dismissal of the defamation action. But the trial court ruled that the Free Exercise Clause of the First Amendment to the United States Constitution afforded Harcsar an absolute privilege against liability for her statements to the Archdiocesan Tribunal.
Did the Trial Court Err in Dismissing Purdum’s Defamation Claim for Lack of Subject Matter Jurisdiction Based on an Absolute Privilege under the First Amendment to the United States Constitution?
Purdum maintains that the trial court’s holding that Harcsar’s alleged defamatory statements were absolutely privileged under the First Amendment was unjustified. Moreover, he contends that the trial court compounded this error in holding that it lacked subject matter jurisdiction as a result of the absolute privilege. Whether jurisdiction exists is a question of law over which this court’s scope of review is unlimited. Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, 609, 244 P.3d 642 (2010).
On the other hand, Harcsar, endorsing and incorporating the briefs and exhibits filed by the Archdiocese as her own briefs and exhibits, contends that because an absolute privilege existed under the Free Exercise Clause of the First Amendment and that because Purdum’s defamation action would entangle the civil courts in an ecclesiastical subject matter contrary to the church autonomy doctrine, this divested the trial court of subject matter jurisdiction.
At the outset, this court notes that the trial court dismissed Purdum’s defamation action under K.S.A. 60-212(b)(1) for lack of subject matter jurisdiction because the First Amendment to the United States Constitution prohibited the trial court from adjudicating this matter. Under the Federal Rules of Civil Procedure, a Rule 12(b)(1) motion goes to the court’s “ Very power to hear the case.’ ” Robinson v. Dalton, 107 F.3d 1018, 1021 (3d Cir. 1997).
Religious Guaranty under the First Amendment
The religious guaranty under the First Amendment is divided into two parts: (1) the Establishment Clause and (2) the Free Ex ercise Clause. These clauses draw a line between church and state in two important ways. First, the Establishment Clause states: “Congress shall make no law respecting an establishment of religion.” Based on the language of this clause, Congress remains free to legislate on matters about religion (for example, the excusing of religious pacifists from military service), but Congress cannot enact any legislation advancing a matter “respecting an establishment of religion.”
Yet, tire reach of the Establishment Clause is not limited to forbidding an established church. This Clause imposes a requirement of official neutrality in religious disputes, which the United States Supreme Court has characterized as one of “benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.” Walz v. Tax Commission of New York, 397 U.S. 664, 669, 90 S. Ct. 1409, 25 L. Ed. 2d 697 (1970).
Second, the Free Exercise Clause “withdraws from legislative power, state and federal, the exertion of any restraint on the free exercise of religion”; it protects the right of “religious liberty in tire individual” to practice one’s faith unrestricted by civil authority. School Dist. v. Schempp, 374 U.S. 203, 222-23, 83 S. Ct. 1560, 10 L. Ed. 2d 844 (1963).
The First Amendment religious clauses are applicable to the states by virtue of die Fourteenth Amendment to the United States Constitution. Moreover, the First Amendment applies to judicial power. Kreshik v. St. Nicholas Cathedral, 363 U.S. 190, 191, 80 S. Ct. 1037, 4 L. Ed. 2d 1140 (1960).
The threshold inquiry here is whether the underlying dispute is a secular one, capable of review by a civil court, or an ecclesiastical one about “discipline, faith, internal organization, or ecclesiastical rule, custom, or law.” Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696, 713, 96 S. Ct. 2372, 49 L. Ed. 2d 151 (1976).
Free Exercise Clause
In ruling that defendant’s alleged defamatory statement was protected under “the defendant’s First Amendment right to Free Exercise of her religion,” the trial court grounded its decision upon the holding in Cimijotti v. Paulsen, 230 F. Supp. 39 (N.D. Iowa 1964), aff'd 340 F.2d 613 (8th Cir. 1965). In Cimijotti, a husband sued his wife and two other women for conspiracy to harm the husband’s reputation because of testimony they gave to the Catholic Church. The court dismissed the claim against the wife because of common-law spousal immunity. It dismissed the case against the two other witnesses, reasoning:
“To allow slander actions to be based solely upon statements made to the Church before its recognized officials and under its disciplines and regulations would be a violation of the First Amendment. The law withdraws from the State any exertion of restraint on free exercise of religion. The freedom of speech does not protect one against slander, yet a person must be free to say anything and everything to his Church, at least so long as it is said in a recognized and required proceeding of the religion and to a recognized official of the religion. . . . [T]he person .must not be prohibited, by fear of court action either civil or criminal against his person or property, from actually malting the communication.” (Emphasis added.) 230 F. Supp. at 41.
The Cimijotti court then held that “based upon the common law . . . and the First Amendment,” the defendants’ statements to the Catholic Church “are absolutely privileged against an action for defamation. On this basis, the plaintiff s complaint would have to be dismissed.” 230 F. Supp. at 42.
Here, Harcsar claims an absolute privilege against liability for her statements to the Archdiocesan Tribunal under the First Amendment. In Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S. Ct. 900, 84 L. Ed. 1213 (1940), the Court stated that the First Amendment has a dual purpose. First, “it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship.” Second, “it safeguards the-free exercise of the chosen form of religion.” As a result, “the Amendment embraces two concepts—freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot.be.” 310 U.S. at 303-04. Thus, the freedom to act, even when the action is in accord with one’s religious convictions, is not totally free from regulation for the protection of society. In other -words, laws over one’s religious beliefs and opinions are prohibited by the First Amendment. Nevertheless, laws may reach one’s actions or practices when they are found to violate some important social order, although the ac tions or practices are required by one’s religion. See Prince v. Massachusetts, 321 U.S. 158, 166-68, 64 S. Ct. 438, 88 L. Ed. 645 (1944) (The Court upheld a statute making it a crime for a girl under 18 years of age to sell any newspapers, periodicals, or merchandise in public places despite the fact that a child of the Jehovah’s Witnesses’ faith believed that it was her religious duty to perform this work.); Reynolds v. United States, 98 U.S. 145, 166-67, 25 L. Ed. 244 (1878) (The Court upheld the polygamy conviction of a member of the Mormon faith despite the fact that an accepted doctrine of his church then imposed upon its male members the duty to practice polygamy.).
Here, Harcsar’s alleged defamatory statements—that Purdum had been “diagnosed as bipolar”—are not of the land normally associated with someone’s religious beliefs and opinions. Harcsar’s statements do not express an inherently religious belief or religious purpose. Thus, these statements should not enjoy an absolute privilege against liability under the Free Exercise Clause of the First Amendment. Although the trial court’s reliance on Cimijotti s absolute privilege ruling may have been misplaced, a trial court’s decision will be upheld even though it relied upon the wrong ground or assigned erroneous reasons for its decision. Robbins, 285 Kan. at 472.
Harcsar, in her responsive pleadings, advances another absolute privilege argument. She maintains that an absolute privilege existed for her alleged defamatory statements on tire grounds drat her statements were made in a “quasi-judicial proceeding.” Privilege, absolute or qualified, is a complete defense against liability for libel. Prosser, Law of Torts § 114, at 776 (4th ed. 1971). The question of whether a publication is privileged is a question of law to be determined by dre court. Turner v. Halliburton Co., 240 Kan. 1, 8, 722 P.2d 1106 (1986).
Absolute privilege concerning defamatory publications has been “confined to a few situations where there is an obvious policy in favor of permitting complete freedom of expression, without inquiry as to the defendant’s motives.” Prosser, Law of Torts § 114, at 777. For example, in Kansas, an absolute privilege has been limited to those individuals “who serve in a legislative, executive or judicial capacity.” Turner, 240 Kan. at 7. See also Weil v. Lynds, 105 Kan. 440, 443, 185 P. 51 (1919) (Witnesses in judicial proceedings enjoy an absolute privilege against slander actions so long as their answers to questions are some way pertinent to the issue being tried; otherwise they enjoy a qualified privilege, depending upon whether they “acted in good faith and believed the matter to be pertinent as well as true.”). Absolute privilege is granted by constitution, legislative enactment, or caselaw to facilitate the effective performance of government. Turner, 240 Kan. at 7.
This court explained the purpose of absolute privilege in Sampson v. Rumsey, 1 Kan. App. 2d 191, 194, 563 P.2d 506 (1977):
“Absolute privilege is founded on public policy and provides immunity for those engaged in the public service and in the enactment and administration of law. It is not intended so much for the protection of those engaged in that service as it is for the promotion of the public welfare, the purpose being that members of the legislature, judges of courts, jurors, lawyers and witnesses may speak their minds freely and exercise their respective functions without incurring the risk of a criminal prosecution or an action for recovery of damages.”
See Redgate v. Roush, 61 Kan. 480, 59 P. 1050 (1900) (“The defamatory statement was not absolutely privileged, as words spoken or written by judges, jurors, or witnesses in the course of judicial proceedings, or as in legislative debates, but it was, at most a case of qualified privilege.”).
Returning to Harcsar’s “quasi-judicial proceeding” argument, this court notes that Black’s Law Dictionary 849 (6th ed. 1990) defines a “judicial proceeding” as follows: “Any proceeding wherein judicial action is invoked and taken .... Any proceeding to obtain such remedy as the law allows .... A proceeding in a legally constituted court.” These definitions all describe secular, non-ecclesiastical, proceedings. Because Harcsar’s “quasi-judicial proceeding” occurred in an ecclesiastical setting and because the occasions for absolute privilege are limited by court precedent, this court determines that Harcsar’s absolute privilege argument fails.
Harcsar and the Archdiocese also advance several other arguments for the dismissal of this action. This court determines that their argument under the Establishment Clause requires the dismissal of this action. The judicial resolution of this defamation ac tion would inexorably entangle the civil courts in an attempt to interpret canon law in violation of the First Amendment of the United States Constitution.
Establishment Clause
There are three main concerns against which the Establishment Clause sought to protect: “sponsorship, financial support, and active involvement of tire sovereign in religious activity.” Walz, 397 U.S. at 668. There are three tests that a law must pass if it is challenged under the Establishment Clause: (1) the statute must have a secular legislative purpose; (2) the statute’s primary effect must be one that neither advances nor inhibits religion; and (3) the statute must not foster an excessive government entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971).
In Lemon, the Court determined that excessive government entanglement with church-related schools would occur. This entanglement was found to inhere in state laws providing for payment of part of the salaries of teachers in parochial schools. The laws were held invalid even though their operation was limited to teachers of secular subjects. The Court reasoned that to ensure enforcement of the limitation, there would have to be excessive entanglement arising from the state’s power of continuing surveillance to determine if the limitation was obeyed. 403 U.S. at 614.
No Excessive Government Entanglement with Religion
An excessive entanglement in violation of the Establishment Clause can occur when states or civil courts are required to interpret and evaluate church doctrine. If civil courts can resolve the issues by “neutral principles of law” by applying rules or standards without inquiiy into religious doctrine, there is no entanglement problem. Jones v. Wolf, 443 U.S. 595, 602-04, 99 S. Ct. 3020, 61 L. Ed. 2d 775 (1979).
To determine whether the Establishment Clause prohibits die civil courts from exercising jurisdiction over this matter, this court, must consider the specific elements of Purdum’s claim. In other words, this court must determine the nature and extent of the doctrinal relevance involved in the dispute.
Purdum bases his suit on a letter that Harcsar wrote to the Archdiocese asking for an annulment of her marriage to Purdum. Paragraph 9 of Purdum’s first amended petition states that the letter “contained several false and damaging statements of fact about Plaintiff s behavior and psychological state, including but not limited to an assertion that Plaintiff was diagnosed as bipolar.’ ”
As stated earlier, Harcsar’s petition for annulment was published solely to the Archdiocesan Tribunal in an ecclesiastical context. In that respect, the petition for annulment supplied the basis for Harcsar’s initiation of annulment proceedings against Purdum under canon law. The Catholic Church does not permit divorce and remarriage. The Catholic Church will allow a later marriage when an annulment, which is also known as a “declaration of invalidity,” is granted for any previous marriage. Thus, Harcsar’s petition for annulment was used to invoke the church’s jurisdiction to determine if the defects, if any, in her marriage justified an ecclesiastical declaration of invalidity. Indeed, Purdum’s notice of Harcsar’s petition for annulment, which included the alleged defamatory statements, is grounded upon religious doctrine. Moreover, Harcsar’s petition for annulment inextricably became part of the Archdiocesan Tribunal, within its ecclesiastical procedure.
Essentially, Purdum’s contentions allege that the alleged defamatory statements made by Harcsar can be “evaluated solely by the application of neutral principles of law and do not implicate matters of religious doctrine and practice.” This court disagrees. For example, Harcsar claims an absolute privilege, which this court briefly discussed earlier, and, in the alternative, a qualified privilege to the alleged defamatory communication. In addition, Harcsar has raised, in her responsive pleadings, a defense of consent to her allegedly defamatory statements. The very nature of Harcsar’s defenses and Purdum’s defamation action will entangle the civil courts in the details of tire administration and procedures of the Archdiocese’s annulment proceedings. To illustrate, Purdum, at the trial court level, sought discovery from the Archdiocese for the following documents:
“1. Any and all correspondence and documents exchanged by you or the Archdiocese of Kansas City in Kansas (‘Archdiocese’) and Stephen Purdum in connection with his marriage case (the ‘Marriage Case’).
“2. Any and all correspondence and documents exchanged by you or the Archdiocese and Katy Purdum in connection with the Marriage Case.
“3. Any and all correspondence and documents exchanged by you or the Archdiocese and any third party or witness in connection with the Marriage Case.
“4. The file created by you or the Archdiocese in connection with the Marriage Case.”
This requested discovery alone will entangle the civil courts in the administration of the Archdiocese’s annulment proceedings. Moreover, there is no way for Purdum to prove his defamation action against Harcsar without excessive entanglement between the civil courts and the Archdiocese. For instance, Purdum conceded to the trial court that the only defamatory publication allegedly made by Harcsar was made to the Archdiocesan Tribunal:
“TPIE COURT: His claim is that he received this publication or that it was given to the church?
“[PLAINTIFF’S ATTORNEY]: Well, he received the publication, and it was published to the Archdiocese.
“TPIE COURT: Not the parishioners, but to the hierarchy?
“[PLAINTIFF’S ATTORNEY]: Right. And I believe that there may have been witnesses to the Archdiocese proceeding. But within the Archdiocese proceeding, not to the parishioners at large.
“THE COURT: Which he knows about because he received his notice as part of the church process which he at least impliedly knows exists because he signs on to the process, submits to the marriage in the church?
“[PLAINTIFF’S ATTORNEY]: It was a Catholic marriage.
“TPIE COURT: So his main complaint arises from him being notified. Otherwise he would have never known anything about the process.
“[PLAINTIFF’S ATTORNEY]: Well, that was how he received notice, but the publication at issue wouldn’t be the publication to him.”
Moreover, Purdum’s first amended petition makes no allegation that Harcsar repeated her allegedly defamatoiy statements to any other persons or in any other forum except to the Archdiocese. Thus, there is no claim that Harcsar disseminated the defamatoiy statements outside the Catholic Church.
As stated previously, Harcsar’s petition for annulment is inextricably part of the Archdiocesan Tribunal. Purdum’s suit would require discovery and depositions of employees of tire Archdiocese and would require the civil courts to interpret canon law concerning Harcsar’s consent defense. For instance, the consent to submit to the discipline or authority of the church, sect, or congregation is one of contract; therefore, it is between the person who has given his or her consent and the religious body. Rosicrucian Fellow. v. Rosicrucian Etc. Ch., 39 Cal. 2d 121, 132, 245 P.2d 481 (1952). Determining whether Harcsar’s consent defense is valid and proper would clearly involve the courts in questions of religious doctrine. Thus, adjudication of Harcsar’s consent defense would entail judicial intrusion into a matter that the Catholic Church is entitled to decide, free from government intrusion.
There is no doubt that the First Amendment offers no protection to religious worshipers who make slanderous or libelous statements outside ecclesiastical tribunals, but that is not the case here. Harc-sar asked for an annulment in a church forum as part of a church-approved, church-defined, and church-controlled process where the church would determine the validity of the church’s marriage sacrament. There is no evidence that she took any action against Purdum outside tire Archdiocesan Tribunal. Purdum’s defamation action involves an ecclesiastical subject matter, and adjudication of it would entangle the civil courts in a church matter.
The First Amendment to the United States Constitution gives to churches freedom in managing their affairs in accordance with their own internal law and procedure, free from civil courts and governmental intervention:
“The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine, and to create tribunals for tire decision of controverted questions of faith within the association, and for the ecclesiastical government of all tire individual members, congregations, and officers within the general association, is unquestioned. All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed.” Watson v. Jones, 80 U.S. (13 Wall.) 679, 728-29, 20 L. Ed. 666 (1871).
Although Watson was based on federal common law, the United States Supreme Court has expressly applied Watson to the first Amendment. Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696, 710, 96 S. Ct. 2372, 49 L. Ed. 2d 151 (1976); see also King v. Smith, 106 Kan. 624, 89 P. 89 147 (1920).
To avoid paying damages to Purdum, Harcsar would have to prove in the civil courts that the statements she made in her petition for annulment were true. Moreover, if Harcsar relies on the defense of qualified privilege, she has the initial burden of establishing a prima facie case of qualified privilege. “A qualified privileged publication is one made on occasion which furnishes a prima facie legal excuse for making it unless additional facts are shown which alter the character of the publication.” Munsell v. Ideal Food Stores, 208 Kan. 909, 920, 494 P.2d 1063 (1972). As a result, Harc-sar would have to show that the statements she made in her petition for annulment were “made in good faith, without malice, and with reasonable or probable grounds for believing them to be true.” 208 Kan. at 920-21.
How can the civil courts—and perhaps a jury—determine if the statements Harcsar made in her petition for annulment were “made in good faith, without malice, and with reasonable or probable grounds for believing them to be true” without entangling itself in the religious sincerity and conscience of Harcsar? The resolution of these factual disputes would require the courts to inquire into religious practices. Moreover, how can the civil courts—and perhaps a jury—consider Harcsar s consent defense without entangling itself in the details of the administration and procedures of the Archdiocese’s annulment proceedings? Indeed, Harcsar’s consent deféhse would require the civil courts to interpret canon law. This is the sort of entanglement that the Establishment Clause forbids. Thus, this court determines that the Establishment Clause under the First Amendment precludes jurisdiction over the subject matter of Purdum’s defamation action. Although this court holds under a different ground than adopted by the trial court, this court determines that the trial court properly concluded that the First Amendment precluded its exercise of subject matter jurisdiction in this defamation action.
Because this court has affirmed the trial court’s dismissal of this action, it is not necessary for this court to address the Archdiocese’s motion to intervene and Church autonomy doctrine issues.
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Hill, J.:
In this case, the district court dismissed a lawsuit based upon the grounds (among others) of concurrent-jurisdiction with the federal court. At first, three corporations started to litigate their contractual disputes in state court in Johnson County-. Then, by agreement, the companies moved their disputes to federal court in Kansas. After protracted battles in federal court, one of die parties, HR Technology, Inc. (HRT) filed this petition in Sedgwick County District Court, making guaranty claims against one of the other corporations. These guaranty claims arose from the counterclaim made by one of the parties in the federal litigation question ing the validity of HRT’s patents. HRT’s claims could have been raised in the federal litigation. In our view, the state district court could decline to hear the lawsuit as a matter of comity between the state and federal courts. Our Supreme Court has recognized that the rule of comity between courts of concurrent jurisdiction rests upon the principles of wisdom and justice, to prevent vexation, oppression, and harassment, and eliminate unnecessary litigation and the multiplicity of suits. Because we find no abuse of discretion here, we hold the district court did not err when it granted summary judgment, and we affirm the dismissal of the lawsuit.
Two corporations enter into license agreements and then a third joins in.
HRT is a Kansas corporation. It is the leading inventor and developer of heat retention technology and radio frequency identification (RFID) technology that is used in cookware. In 2003, HRT made an agreement with another Kansas corporation, Imura International U.S.A., Inc. (Imura), granting Imura the right to use the RFID technology and some related patents held by HRT. The parties refer to this agreement as “the Asia License.”
Under this Asia License, Imura received the exclusive right to market and sell residential cooking systems using HRT’s licensed technology in Japan, Taiwan, and mainland China. But Imura did not have the right to manufacture the cookware. Instead, Imura agreed to purchase the cookware from an “Authorized Manufacturer” as defined in the agreement.
Then, late in 2004, HRT and Imura entered a second agreement in which Imura was granted the right to sell the cooking systems worldwide, except for the countries of Japan, Taiwan, and mainland China. This agreement is known as “the Worldwide License.” In tire Worldwide License, Imura was granted the right to manufacture cookware utilizing HRT’s licensed technology.
In addition to those two corporations, another party to these proceedings is Vita Craft Corporation (Vita Craft), a Kansas corporation, a wholly owned subsidiary of Imura. In 2003 and then in 2004, Imura assigned all its rights and interests in the License Agreements to Vita Craft through two assignment and assumption agreements.
Disputes arose.
The parties’ license disputes move from one court to another.
In early 2006, HRT terminated Imura’s rights under the License Agreements, claiming Imura had breached certain provisions of the agreements. Imura and Vita Craft then filed suit against HRT in the Johnson County District Court, asking the court to:
• issue orders prohibiting HRT from notifying other companies that the License Agreements had been terminated;
• render a declaratory judgment that the two companies did not breach the License Agreements;
• award them damages based on HRT’s tortious interference with contracts they had with third parties; and
• find HRT breached the License Agreements by terminating them.
In response, HRT filed a counterclaim against Imura and Vita Craft alleging fraud, breach of contract, and tortious interference with a contract. In an amended pleading, HRT added a claim for post-termination breach of contract (asserting Imura and Vita Craft continued to use its patents and technology without permission after the License Agreements were terminated) and made a patent infringement claim. HRT asked the court to declare the patent Imura was attempting to have authorized (referred to as “Patent 675”) invalid.
A little more than a year later, HRT filed suit against Imura and Vita Craft in the United States District Court for die District of Kansas. In that case, HRT again asked die court to declare Patent 675 invalid and claimed Imura had infringed upon its patents. The parties later agreed to consolidate the Johnson County case with the federal case, so the Johnson County case was dismissed without prejudice. HRT dismissed its initial federal court case and filed a new federal case in May 2008 asking the court to declare Patent 675 invalid and claiming, among other things, that Imura and Vita Craft breached the License Agreements, breached the License Agreements post-termination, and infringed upon HRT’s patents.
Then, Imura and Vita Craft filed a counterclaim alleging HRT breached the License Agreements by terminating them and also claimed HRT tortiously interfered with its contracts with third parties and business advantages. Imura and Vita Craft also claimed they did not infringe upon HRT’s patents and asked the court to find HRT’s patents unenforceable.
In August 2010, the federal court granted Imura’s and Vita Craft’s motion for summary judgment on HRT’s state tort claims, statutory claims, and contract claims after determining HRT failed to provide a sufficient evidentiary basis to support these claims. The federal court did not address Imura’s and Vita Craft’s counterclaims at that time.
Soon after the federal court ruled, HRT filed this lawsuit.
Shortly after the ruling dismissing its claims, HRT filed suit in the Sedgwick County District Court, claiming Imura breached its guaranty obligation under the License Agreements and both Imura and Vita Craft breached its indemnification obligation under the agreements. HRT’s claims were based on the following provisions of the License Agreements:
• Paragraph 3(c)(2) and (3) of the License Agreements provide that Imura must represent and warrant to HRT that any Authorized Manufacturer will be bound by the manufacturing agreements and terms set forth in the agreement and that every manufacturer agreement entered into by Imura will not cause HRT to lose, in whole or part, any rights it has in its RFID technology or patents.
• Schedule C requires the Authorized Manufacturer to expressly agree that:
1. the RFID technology and patents belong to HRT and the Authorized Manufacturer will not make any claim in the future as to any ownership or right to use the RFID technology or patents, nor make any claim inconsistent with HRT’s ownership of the RFID technology and patents;
2. it does not have and will not pursue any claim for damages against HRT related to the cookware, the manufacturing agreement, tire RFID technology, or the patents; and
3. its rights to the RFID technology and patents are subject to and subordinate to the rights granted to Imura, and the Authorized Manufacturers rights will cease upon termination of Imura’s rights.
• Paragraph 3(d) of the License Agreements states that Imura will indemnify and hold HRT harmless from all damages, costs, and expenses resulting from any claims or suits of any type made or asserted by any such manufacturer against HRT.
• Paragraph 3(e) provides that Imura will guarantee to HRT that any Authorized Manufacturer will not breach the terms of tire manufacturing agreement or assert any rights inconsistent with HRT’s ownership of its technology and patents.
In its petition in the Sedgwick County case, HRT claimed that after it terminated the License Agreements, Vitá Craft asserted the right to use tire RFID technology and patents without a license, made claims inconsistent with HRT’s ownership of the technology and patents—including claims that HRT’s patents were invalid and unenforceable, and made claims for damages seeking recovery of expenses it incurred as a purported Authorized Manufacturer. Thus, HRT claimed that (1) Imura breached its guaranty obligation under paragraphs 3(c) and (e); (2) Imura breached its indemnification and hold harmless obligation (as a result of Vita Craft’s suit); and (3) Vita Craft, as assignee of the License Agreements, breached its indemnification and hold harmless obligation.
In due course, Imura and Vita Craft moved for summary judgment in the Sedgwick County case, claiming (1) HRT’s claims were compulsoiy counterclaims that should have been made in either the Johnson County case or in the federal case; (2) the claims are barred by the doctrine of res judicata and the rule against claim splitting; (3) the alleged breaches occurred after HRT terminated the License Agreements; and (4) the claims could only be made if an Authorized Manufacturer brought suit against HRT—and Vita Craft was not an Authorized Manufacturer.
After holding a hearing on Imura’s and Vita Craft’s motion, the district court granted summary judgment to Imura and Vita Craft, ruling HRT’s claims were barred by the compulsory counterclaim rule, the doctrine of res judicata, the rule against claim splitting, and the doctrine of concurrent jurisdiction. The court said HRT’s claims were an attempt to “recast litigation” and get a “second bite of the apple” on claims that should have been presented in the federal case, noting the present claims involved the same parties, the same relationships, and the same contracts. The court concluded that HRT’s current claims did not pass the “smell test.”
HRT appeals rthe district court’s grant of summary judgment. This court reviews an order granting summaiy judgment de novo. In re Tax Appeal of LaFarge Midwest, 293 Kan. 1039, 1043, 271 P.3d 732 (2012).
“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summaiy judgment, the facts subject to dispute must be material to the conclusive issues in the case. On appeal the court applies the same rules, and where the court finds that reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.” Osterhaus v. Toth, 291 Kan. 759, Syl. ¶ 1, 249 P.3d 888 (2011).
We examine the issue of concurrent jurisdiction.
The district court concluded HRT’s claims were barred, in part, by the doctrine of concurrent jurisdiction. The court cited Nixon v. Nixon, 226 Kan. 218, 596 P.2d 1238 (1979), for the rule that a court of coordinate jurisdiction should not interfere with pending proceedings under way in a sister court. The court reasoned that Imura’s and Vita Craft’s claims against HRT in the prior litigation (i.e., in die Johnson County case and the federal case) triggered HRT’s guaranty and indemnification claims, so those claims should have been presented “to die court that ha[d] the jurisdiction” to resolve all the claims at once. The court opined that the current claims were so similar and interconnected to the prior claims that it would be unjust to require Imura and Vita Craft to “subject themselves to [die] jurisdiction [of]” the Sedgwick County District Court.
In its initial brief, HRT did not challenge the district court’s application of the doctrine of concurrent jurisdiction. HRT only addressed the issue in its reply brief, after Imura and Vita Craft suggested that we simply affirm the district court’s- decision on this basis. In its reply, HRT explains its failure to brief the issue by noting that Imura and Vita Craft did not rely upon the doctrine of concurrent jurisdiction in their motion for summary judgment and by arguing the district court did not explain how the doctrine applies or serves as an independent basis for granting summary judgment.
We are not so persuaded. The district court specifically cited the doctrine of concurrent jurisdiction in its decision, discussed jurisdiction in its analysis, and cited Nixon for support. Moreover, when the district court reaches tire correct result, its decision will be upheld on appeal even if it relied on the wrong ground or assigned erroneous reasons for its decision. Rose v. Via Christi Health System, Inc., 279 Kan. 523, 525, 113 P.3d 241 (2005).
A review of caselaw is helpful at this point. It has long been the rule in Kansas that the court of competent jurisdiction which first acquires jurisdiction retains it to the exclusion of any other court of concurrent jurisdiction. A court of coordinate jurisdiction should not interfere with pending proceedings underway in a sister court. Nixon, 226 Kan. at 221-22. The rule is applicable not only between courts within the same state, but also between federal courts and state courts and state courts of different states. Marriage of Laine, 34 Kan. App. 2d 519, 525, 120 P.3d 802 (2005), rev. denied 280 Kan. 1378 (2006).
Kansas law reflects that a court’s application of the doctrine is entirely discretionary. In Laine, this court held the district court did not abuse its discretion in setting aside a divorce where a Texas court was already handling the divorce. 34 Kan. App. 2d at 520, 525. In doing so, the court confirmed the general rule that courts should exercise comity in order to avoid additional costs and inconvenience to litigants. See Reynolds-Rexwinkle Oil, Inc. v. Petex, Inc., 25 Kan. App. 2d 707, 969 P.2d 906, rev’d on other grounds 268 Kan. 840 (1998); Nixon, 226 Kan. at 221-22.
While it is true that many of the cases where the doctrine of concurrent jurisdiction has been applied involve family law matters, such as divorce, child custody, and support issues, nonetheless, the doctrine has been applied in other contexts as well.
In Reynolds, Petex, Inc. asked a Missouri court to enter declaratory judgment and reform an oil and gas contract. The opposing party in the case later filed suit in Sedgwick County District Court seeking enforcement of its interest under the contract. In holding the Sedgwick County District Court did not abuse its discretion in exercising jurisdiction over the case, this court noted there was no evidence the opposing party was attempting to escape an adverse judgment from another jurisdiction; no evidence the Missouri court had addressed any substantive issues related to the contract; tire case involved a Kansas corporation, a Missouri corporation doing business in Kansas, Kansas landowners, Kansas lease properly, and a Kansas oil and gas distribution company; and the parties did not dispute that the Sedgwick County court had subject matter and personal jurisdiction over the parties. 25 Kan. App. 2d at 711-12.
The court said:
“While forum shopping is not favored by Kansas courts, district courts are afforded significant discretion in determining whether the facts constitute such a practice. The most important issue is whether the court had jurisdiction over the subject matter and the parties, not whether one party filed its suit before the other.” 25 Kan. App. 2d at 711.
We apply the doctrine to the facts of this case.
Turning to the facts of this case, we first note that there has been no suggestion that the federal court lacked proper jurisdiction over tire dispute between HRT and Imura and Vita Craft. The federal case was filed before tire Sedgwick County case and was still being litigated at the time the Sedgwick County case was filed. Although the specific legal claims raised in the federal case differed from those presented to the Sedgwick County court, the claims revolved around the same license agreements, involved the same parties, and involved the same facts.
Indeed, these guaranty and indemnification claims arose from Vita Craft’s attack on HRT’s patents. All of the discovery accu mulated during the protracted federal litigation would be available to all of the parties to assist in the resolution of these new claims by HRT if it was litigated in federal court. Expensive new discovery would be necessary in a new state court action. After all, our Supreme Court has held:
“[T]he recognition of the rule of comity between courts of concurrent jurisdiction is most beneficial. The rule rests upon the principle of wisdom and justice, to prevent vexation, oppression and harassment, and eliminate unnecessary litigation and multiplicity of suits. A state court should exercise its discretion with care in refusing to stay the prosecution of an action where a prior action has been filed in the federal district court between the same parties, involving the same issues, and capable of authorizing the-same relief.” Farmers Union Cooperative Elevator v. Grain Dealers Mut. Ins. Co., 194 Kan. 181, 184, 398 P.2d 571 (1965).
On appeal, HRT correctly points out that courts typically apply the doctrine of concurrent jurisdiction when refusing to exercise jurisdiction over a plaintiff s claims. The district court held HRT’s claims were barred by the doctrine and did not simply refuse to exercise jurisdiction over the claims. Rut no matter how it was worded the result is the same: the court refused to consider HRT’s claims on the merits. The fact that the district court held HRT’s claims were barred as opposed to abstaining from exercising jurisdiction over the case does not prevent us from affirming the grant of summary judgment on this basis. Simply put, HRT has not shown us that the court abused its discretion.
In like manner, while it is true that prior cases dealing with the subject'have all involved identical claims made in both courts, we are not persuaded that bars the application of the concurrent jurisdiction doctrine here, where HRT is raising derivative claims in the state lawsuit. After all, the indemnification and guaranty claims of HRT were triggered by actual claims made in the federal lawsuit. The goal of exercising comity between courts is to avoid expense, harassment, and inconvenience. Perrenoud v. Perrenoud, 206 Kan. 559, 573, 480 P.2d 749 (1971). We see no bettér place for these parties to seek justice than in federal court.
Affirmed. | [
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The opinion of the court was delivered by
Larson, J.:
Kristine Rayman Carpenter appeals the trial court’s order continuing residential custody in her ex-husband, Thomas Rayman, during his military tour in Korea, where dependants are not allowed to accompany him; She argues the trial court (1) misapplied K.S.A. 2001 Supp. 60-1610(a)(2) and the parental preference doctrine, (2) abused its discretion in failing to find a material change of circumstances occurred and the best interest of the children would be served by changing residential custody to her during Thomas’ 1-year Korean military tour of duty.
In July 1997, Kristine and Thomas were divorced. At the time, they had two boys, ages 11 months and 3 years. Both Thomas and Kristine were on active duty in the United States Army when they divorced, and, by agreement, they shared joint custody of the children, with Thomas having primary residential custody. Kristine was given “reasonable visitation privileges at times mutually agreed upon.”
On June 25, 2001, Kristine filed a motion which she captioned Motion for Specific Visitation and for Future Change of Custody. She requested her visitation rights be made more specific and she be given temporary custody of the children for the year in which Thomas would be in Korea, beginning October 2001. She contended it was in the children’s best interests for them to be placed with her.
The motion was heard on August 24 and 27, 2001. Thomas clarified that he would be leaving for Korea on October 15, 2001, and returning October 15, 2002, with 30 days of leave back in the United States with his family, which he planned to take during the middle of his tour. He testified the children would live in Michigan with his present wife, Leisha, and the paternal grandparents during the time he would be gone. This plan for the children, however, was changed after the court issued its ruling, and the children were moved to Texas, where Leisha’s parents reside. The change in plans was due to the health problems of Leisha’s father. Texas is also where Thomas will be stationed at Fort Hood after he returns from Korea.
No evidence was introduced tending to show either parent was unfit, nor were any allegations of such nature made. Thomas stated that he believed the boys should remain in his custody but with Leisha during his absence because putting them under a new parenting technique or new parenting attitude would add to the already existing trauma of the coming move and change in school systems. He testified that Kristine did not properly discipline the boys and after they returned from a 2-month visit to Kristine they were generally less obedient.
Leisha testified that it would be traumatic to the boys for them not to have contact with her for the year in. which Thomas would be gone as she had been caring for them for the last several years. She and Thomas both testified that it was their belief that it was in the children’s best interest to remain in his residential custody. Her testimony established that she has a strong relationship with the children and has been a stay-at-home mother who is expecting a child in 2002.
Kristine testified that she was going to be medically retired from the Army in September 2001, due to migraines, problems with her hips, and an undisclosed condition. She stated the medical conditions would not affect her parenting abilities. While on medical retirement, she planned to attend school in Tennessee. Michael Carpenter, Kristine’s current husband, testified that due to schooling and training he would not join Kristine in Tennessee until May or June 2002. Kristine admitted that she knew at the time she agreed to Thomas being the primary physical custodian that he might at some future date face a hardship tour.
The trial court adopted the agreements of the parties as to an extended visitation schedule and tiren stated:
“As to the next year, the motion to modify the custody on a temporary basis, that request is denied for the following reasons. I find that the more stable environment is with the respondent, that the children have been with him since they were a very young age and that the transfer to their mother, even for only a year period, is likely to be unsettling to them. It doesn’t appear to be in the best interests.
“I’ll also note that the mother has significant medical problems which are leading to her medical retirement from the military, that there are going to be major changes in her life, including that her present husband will be gone away to school for the vast majority of the time that’s under question here, that the children are more likely to be successful in the custody of their father and his present wife with the help of the paternal grandparents.
“It is in the nature, I suppose, of military children that they’re going to be moved around a lot. It doesn’t make any difference where they spend the next year. A year from now they’re moving to Texas. For those reasons that motion is denied.
“During this year, however, I want the petitioner to have visitation at Thanksgiving time, at Christmas time, spring break, and for eight weeks during the summer. As we have set out in other orders, the parties are to share the expenses concerned with the transportation for visitation. If they can not agree on how to do that bring an appropriate motion back before me and I’ll make an order.”
After discovering the children would be moving to Texas rather than Michigan, Kristine asked the court to reconsider its ruling and the trial court declined to do so. From these orders, Kristine appeals.
Our jurisdiction is pursuant to K.S.A. 20-3018(c) (transfer from the Court of Appeals on our own motion).
Kristine contends we must interpret K.S.A. 2001 Supp. 60-1610(a)(2) in connection with the parental preference doctrine, which she argues is a conclusion of law over which our review is unlimited, citing Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995). She agrees that whether a child custody order is to be changed or modified rests with the sound judicial discretion of the trial court. See Richardson v. Richardson, 211 Kan. 172, 505 P.2d 690 (1973).
Thomas states the interpretation of K.S.A. 2001 Supp. 60-1610(a)(2) as to the application of the parental preference doctrine is an issue of both fact and law, with our review being abuse of discretion as to issues of fact, see Dickison v. Dickison, 19 Kan. App. 2d 633, 874 P.2d 695 (1994), and unlimited as to questions of law. See In re R.C., 21 Kan. App. 2d 702, 706, 907 P.2d 901 (1995), rev. denied 259 Kan. 928 (1996).
We said in In re Marriage of Whipp, 265 Kan. 500, 506, 962 P.2d 1058 (1998), that
“[w]hen the custody issue Mes only between the parents, the paramount consideration of the court is the welfare and best interests of the child. The trial court is in the best position to make the inquiry and determination, and in the absence of abuse of sound judicial discretion, its judgment will not be disturbed on appeal. [Citations admitted.]”
We have further said that judicial discretion is abused only when no reasonable person would take the view adopted by the trial court. State v. Williams, 268 Kan. 1, 8, 988 P.2d 722 (1999).
The caption of Kristine’s motion was for Specific Visitation and for Future Change of Custody. The motion first stated the separation and joint custody agreement had been for “reasonable visitation” and she requested specific visitation. The motion then asked for temporary custody of the children at a date certain in the future. The motion requested residential custody of the children to be changed as of the time Thomas was posted to Korea on October 15, 2001. This request was denied by the court. Kristine’s first appellate contention is that K.S.A. 2001 Supp. 60-1610(a)(2) was unconstitutionally applied in that it controls the change of custody between natural parents while in fact the trial court’s decision placed residential custody in Thomas’ wife, a stepparent or non-parent, which Kristine claims to be a violation of the parental preference doctrine.
Although the evidence presented to the trial court did show the stepmother would be caring for the children during the two 5Vz-month periods Thomas was in Korea, the trial court’s ruling was that residential custody was to remain with Thomas, and Kristine was granted increased visitation rights.
The argument in Kristine’s brief of an unconstitutional application of 60-1610(a)(2) was not made to the trial court, and we have clearly held that “[w]here constitutional grounds for reversal are asserted for the first time on appeal, they are not properly before the appellate court for review. [Citations omitted.]” Ruddick v. Boeing Co., 263 Kan. 494, 498, 949 P.2d 1132 (1997).
The issue before the trial court did, however, involve the application of K.S.A. 2001 Supp. 60-1610(a)(2), which in applicable part provides:
“Subject to the provisions of the uniform-custody jurisdiction and enforcement act (K.S.A. 38-1336 through 38-1377, and amendments thereto), the court may change or modify any prior order of custody, residency, visitation and parenting time, when a material change of circumstances is shown . . . ."
The contest for residential custody was between Kristine and Thomas. The residential custody was continued in Thomas, the biological father, who had faithfully cared for his two children for the 4 years since the parties’ divorce. It is true that he has enjoyed the assistance of his present wife in caring for the children, but the residential custody was and remains with Thomas.
This is not a contest as to custody between a natural parent and a grandparent or nonparent who have no permanent right to the children’s custody as was the case in In re Guardianship of Williams, 254 Kan. 814, Syl. ¶¶ 1, 2, 3, 869 P.2d 661 (1994), which Kristine relies on in characterizing the trial court’s order as granting custody to Thomas’ present wife. Such is not the court’s order. The Williams decision, the case cited therein, and the parental preference doctrine are not applicable to the facts of our case.
What Kristine in fact appears to request on appeal (although this is not how she couched her request to the trial court) is for a bright line rule that a parent with residential custody of his or her children loses that custody when required to be away from- his or her children for an extended period of time such as a 5%-month military tour to Korea, followed by a month’s time with his or her family, and then followed by an additional SMs-month military tour back to Korea. We decline to adopt such a bright line rule requiring change of residential custody to the noncustodial parent.
Each situation involving military families has distinct differences, as do the facts of temporary changes which relate to nonmilitary custodial relationships. The temporary transfer of the parent with residential custody must not automatically trigger a custody change. We reject Kristine’s argument that the parental preference doctrine was violated by the trial court’s ruling under the facts of this case. Custody is an issue to be determined on a case-by-case basis as the trial court did here.
Kristine’s second contention that the trial court abused its discretion in failing to find there was a material change of circumstances that warranted a change in the best interests of the children flies in the face of contrary factual findings made by the trial court in resolving the disputed evidence. The trial court heard the evidence and saw each witness who testified. Issues of credibility are the providence of the trial courts.
As we have previously said, we utilize an abuse of discretion standard when reviewing a trial court’s child custody determination. In re L.A.M., 268 Kan. 441, 445, 996 P.2d 834 (2000); In re Marriage of Whipp, 265 Kan. at 502.
There was substantial competent evidence to support the trial court’s findings and rulings. The trial court did not abuse its discretion in denying Kristine’s motion, and its ruling is affirmed.
Davis, J., not participating.
David S. Knudson, J., assigned. | [
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Per Curiam-.
This is an original uncontested proceeding in discipline filed by the Disciplinary Administrator s office against Vashti Winterburg, of Lawrence, an attorney admitted to the practice of law in Kansas.
The formal complaint against respondent alleges violations of KRPC 1.3 (2001 Kan. Ct. R. Annot. 323), diligence and promptness; 1.4 (2001 Kan. Ct. R. Annot. 334), communication; 1.16(d) (2001 Kan. Ct. R. Annot. 387), terminating representation; 3.2 (2001 Kan. Ct. R. Annot. 398), expediting litigation; 3.3 (2001 Kan. Ct. R. Annot. 402), candor; 8.4(c) (2001 Kan. Ct. R. Annot. 437), misconduct; and Supreme Court Rule 207 (2001 Kan. Ct. R. An-not. 246), failure to cooperate.
A hearing before the panel of the Kansas Roard for Discipline of Attorneys was held on June 6, 2001, in the hearing room of the office of Disciplinary Administrator, Topeka, Kansas. Respondent appeared in person and through counsel Jonathan C. Recker. Respondent testified at the panel hearing and stipulated to the facts and to the violations of KRPC as set forth in the complaint. The panel found the following by clear and convincing evidence:
“Gillaspie Complaint: DA8007
“2. On August 11,1999, Mary Ellen Gillaspie retained the Respondent to represent her in an action for divorce. Ms. Gillaspie paid the Respondent $265.00. Although the Respondent failed to provide a written engagement letter, Ms. Gillaspie understood that the Respondent’s time would be billed at $100.00 per hour.
“3. On August 13, 1999, the Respondent filed a petition for divorce in behalf of Ms. Gillaspie, Petitioner. After a hearing on October 25,1999, the divorce was granted. Pursuant to local custom, the matter was bifurcated and the issues of property settlement and assignment of debt were scheduled for hearing on January 20, 2000.
“4. Ms. Gillaspie and the Respondent did not meet to prepare for the January 20, 2000, hearing. On January 20, 2000, Ms. Gillaspie took a day off from work to attend the hearing. Prior to the hearing, the Respondent telephoned Ms. Gillaspie and falsely informed her that the hearing was ‘bumped’ and would be rescheduled.
“5. With respect to the hearing scheduled for January 20,2000, the Respondent represented to the Court and to Timothy G. Riling, opposing counsel, that Ms. Gillaspie was ill and unable to attend the hearing scheduled for that day. Ms. Gillaspie was not ill on January 20, 2000.
“6. Regaining in January, 2000, and continuing through November, 2000, Ms. Gillaspie made many attempts to contact the Respondent. Ms. Gillaspie telephoned the Respondent, Ms. Gillaspie sent the Respondent notes by facsimile, and Ms. Gillaspie sent the Respondent letters. The Respondent failed to return Ms. Gillaspie’s telephone calls and failed to respond to Ms. Gillaspie’s written correspondence. The Respondent never rescheduled the property division hearing.
“7. On July 20, 2000, Ms. Gillaspie sent a letter of complaint to the Office of the Disciplinary Administrator, regarding the Respondent and Mr. Riling. The Deputy Disciplinary Administrator attempted to handle the complaint informally. However, the Respondent failed to provide a written response. As a result, on September 1, 2000, Ms. Gillaspie’s complaint was docketed for investigation.
“8. Jeffrey O. Heeb, the attorney assigned to investigate Ms. Gillaspie’s complaint, sent to the Respondent two letters requesting that the Respondent provide a written response to Ms. Gillaspie’s complaint. The Respondent never provided a written response to Ms. Gillaspie’s complaint.
“9. On two occasions, Ms. Gillaspie demanded the return of her file. On November 7, 2000, Ms. Gillaspie wrote to the Respondent, demanding that the Respondent ‘return all documents pertaining to [Ms. Gillaspie’s] case to [Ms. Gillaspie] immediately.’ The Respondent failed to respond to Ms. Gillaspie’s request and the Respondent failed to return the documents to Ms. Gillaspie. Then, on November 20, 2000, Ms. Gillaspie wrote to the Respondent asking that the Respondent ‘release to Todd L. Crenshaw all materials from the file [that the Respondent was] maintaining on [Ms. Gillaspie’s] behalf.’ At that time, the Respondent did not release any materials to Mr. Crenshaw.
“10. At the insistence of her attorney, shortly before the hearing held on the Formal Complaint in this case, the Respondent returned Ms. Gillaspie’s materials to Mr. Crenshaw. Ms. Gillaspie then retrieved the materials from Mr. Crenshaw.
“11. The property division issue in Ms. Gillaspie’s divorce remains unresolved.
“Rohr Complaint: DA8205
“12. In June, 2000, Deborah Rohr retained the Respondent to represent her in post-divorce child custody and child support matters. At the time she retained the Respondent, Ms. Rohr paid the Respondent $100.00. The Respondent promised Ms. Rohr that the Respondent would immediately file the necessary motions.
“13. Ms. Rohr paid to the Respondent an additional $300.00, to file and prosecute the necessary motions.
“14. From June, 2000, to December, 2000, Ms. Rohr telephoned the Respondent on numerous occasions, attempting to learn the status of her case. Only occasionally was Ms. Rohr successful in contacting the Respondent. When Ms. Rohr was successful in contacting the Respondent, the Respondent provided excuses for her failure to file the necessary motions.
“15. Finally, on December 6, 2000, the Respondent filed a motion to change child custody, a motion to change child support, and a motion for reimbursement of medical and dental expenses.
“16. After filing the motions, the Respondent failed to take any further action in Ms. Rohr’s case. The Respondent did not inform Ms. Rohr that she was terminating the representation; nor did the Respondent return the unearned retainer.
“17. On March 29, 2001, Ms. Rohr traveled to the Respondent’s office, which is located in the Respondent’s residence. At the time Ms. Rohr arrived, the Respondent was not at home. Ms. Rohr waited in her car until the Respondent returned home. At that time, Ms. Rohr demanded the return of her file and the unused retainer. The Respondent refunded $80.00 to Ms. Rohr.
“18. On April 9, 2001, the Deputy Disciplinary Administrator sent the Respondent a copy of Ms. Rohr’s complaint and a letter informing the Respondent that Ms. Rohr’s complaint had been docketed. Additionally, the Deputy Disciplinary Administrator, in his letter, requested that the Respondent provide a written response to Ms. Rohr’s complaint within ten days.
“19. On April 11, 2001, Don Bums, investigator for the Office of the Disciplinary Administrator contacted the Respondent by telephone. Mr. Bums confirmed with the Respondent that she had received the Deputy Disciplinary Administrator’s letter and a copy of Ms. Rohr’s complaint. The Respondent assured Mr. Bums that a written response would be provided within ten days as requested. The Respondent failed to respond.
“20. On May 14, 2001, the Respondent wrote to Ms. Rohr regarding the status of her case.
“21. Athough the date in the Notice of Mailing is December 19, 2000, it appears as though in May, 2001, the Respondent finally filed a motion to withdraw in Ms. Rohr’s case.
“22. On May 18, 2001, James G. Chappas entered his appearance in behalf of Ms. Rohr. On May 23, 2001, through her attorney, the Respondent forwarded Ms. Rohr’s file to Mr. Chappas.”
The panel made the following conclusions of law:
“1. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. In this case, the Respondent failed to provide diligent representation to Ms. Gillaspie when she failed to timely reschedule the property division hearing. The Respondent violated KRPC 1.3 with regard to Ms. Rohr when she failed to timely file and prosecute the necessary motions. Because the Respondent failed to act with reasonable diligence and promptness in representing Ms. Gillaspie and Ms. Rohr, the Hearing Panel concludes that the Respondent violated KRPC 1.3.
“2. KRPC 1.4(a) provides:
‘A lawyer shall keep a client reasonably informed about the status of a matter and prompdy comply with reasonable requests for information.’
Id. The Respondent failed to respond to requests for information from Ms. Gillaspie and Ms. Rohr. Additionally, the Respondent failed to keep Ms. Gillaspie and Ms. Rohr reasonably informed about the status of their cases. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.4(a).
“3. KRPC 1.16(d) provides:
‘Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.’
Id. The Respondent ceased representing Ms. Gillaspie and Ms. Rohr and failed to take reasonable steps to protect them. The Respondent did not give any notice to them and did not surrender their papers, in violation of KRPC 1.16(d). The Hearing Panel concludes that the Respondent violated KRPC 1.16(d) with regard to Ms. Gillaspie and Ms. Rohr.
“4. An attorney violates KRPC 3.2 if she fails to make reasonable efforts to expedite litigation consistent with the interests of her client. Id. Because the Respondent continued Ms. Gillaspie’s property division hearing, and failed to have it rescheduled, the Hearing Panel concludes that the Respondent violated KRPC 3.2.
“5. KRPC 3.3(a)(1) provides that ‘[a] lawyer shall not knowingly make a false statement of material fact to a tribunal.’ Id. The Respondent provided false information to the Court and opposing counsel, claiming her client was ill and unable to attend the January 20, 2000, hearing. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 3.3(a)(1) by making a false statement of material fact to a tribunal.
“6. [KRPC 8.4 provides:]‘It is professional misconduct for a lawyer to:
(a) Violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through die acts of another;
(g) engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law.’
Id. In this case, the Hearing Panel concludes that the Respondent violated KRPC 8.4(a) when she violated other rules of professional conduct. Additionally, the Hearing Panel concludes that falsely informing the Court and opposing counsel that Ms. Gillaspie was ill, when she was not ill, adversely reflects on the Respondent’s fitness to practice law, in violation of KRPC 8.4(g).
“7. Kan. Sup. Ct. R. 207(b) provides as follows:
‘(b) It shall be the duty of each member of the bar of this state to aid the Supreme Court, the Disciplinary Board, and the Disciplinary Administrator in investigations concerning complaints of misconduct, and to communicate to the Disciplinary Administrator any information he or she may have affecting such matters.’
Id. The Respondent failed to respond to the complaints filed by Ms. Gillaspie and Ms. Rohr as requested by the Deputy Disciplinary Administrator and the attorney investigator. Accordingly, the Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 207(b).”
The panel applied the ABA Standards for Imposing Lawyer Sanctions (1991) and considered ABA Standard 3 in making its recommendation as to the discipline to be imposed against the respondent.
The panel found the following aggravating factors: bad faith obstruction, failure to acknowledge that her conduct was wrong, vulnerability of victims, and a pattern of misconduct. The panel found several mitigating circumstances, including absence of disciplinary record and inexperience in die practice of law. The panel considered and rejected respondent’s depression as a mitigating factor:
“The Respondent testified, in mitigation of the complaint, that she suffers from depression, that she has been under the care of a psychiatrist since May, 1999, and that she is currently taking medication for this condition. The Hearing Panel concludes, however, that this is not a factor in mitigation. The Respondent’s depression is not a factor in mitigation because (1) there was no evidence, other than the Respondent’s testimony, of the Respondent’s diagnosis, (2) there was no evidence that the depression caused the misconduct, (3) there was no evidence either that the Respondent has recovered from the depression or the Respondent’s prognosis, and (4) there was no evidence that recurrence of the misconduct is unlikely.
“It is of particular concern to the Hearing Panel that the majority of the misconduct in this case occurred after the Respondent initially sought assistance from a psychiatrist and after the Respondent began taking medication for depression and a hormonal imbalance.”
In addition to the above-cited factors, the panel thoroughly examined and considered Standards 4.42 and 6.12. Standard 4.42 provides, in pertinent part: “Suspension is generally appropriate when: (a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or (b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.” Here, “Respondent knowingly failed to perform services for Mrs. Gillaspie and Ms. Rohr and caused actual injury to both clients.”
Standard 6.12 provides:
“Suspension is generally appropriate when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action, and causes injury or potential injury to a parly to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding.”
The panel stated: “Here, the Respondent included false information in a pleading filed with the Court. The false information provided the basis for the continuance of the property division hearing in the Gillaspie matter.”
The panel then concluded its recommendation as follows:
“Based upon the findings of fact, conclusions of law, and standards, the Hearing Panel unanimously recommends that the Respondent be suspended from the practice of law in the state of Kansas for a period of twelve (12) months. The Hearing Panel also recommends that the Respondent be required to undergo a reinstatement hearing, pursuant to Kan. Sup. Ct. R. 219. At the reinstatement hearing, the Respondent should be required to establish that she has received the appropriate professional help to enable her to prevent a repeat of the misconduct present in this case.”
In addition to her objection to the recommended discipline, on appeal respondent takes exception to three findings of the panel: the finding of bad faith obstruction, the finding of refusal to acknowledge the wrongful nature of her conduct, and the finding that depression was not a factor in mitigation.
With regard to the bad faith finding, respondent urges the court to ignore it. She explains that her failure to respond to the Disci plinary Administrators inquiries was due to her being in the grip of untreated depression. Respondent testified that her untreated depression caused her to be in a state of near paralysis.
With regard to the refusal to acknowledge wrongdoing finding, respondent would have the court equate steps that have been taken to ameliorate the harm suffered by her clients with acknowledgment of wrongdoing. She directs the court’s attention to her probation plan.
With regard to depression as a mitigating factor, respondent contends that her testimony and that of her treating physician contradict the panel’s determination. There was no evidence given by her treating physician. There is a letter appended to her brief at Tab A, which does not seem to be in the record, from a psychiatrist who examined respondent for the first time in June 2001. That psychiatrist states that he did not have the records from Dr. Wang, who, according to respondent, had been her treating physician. The hearing panel expressed grave concern at the lack of evidence, apart from respondent’s own testimony, of a diagnosis of depression; whether depression caused the misconduct; and whether and when it was being treated. The hearing panel’s concern was warranted.
The court, having reviewed the record herein and the reports of the hearing panel, concurs in the findings, conclusions, and recommendation of the panel.
It Is Therefore Ordered that Vashti Winterburg be suspended from the practice of law in the State of Kansas for a period of 1 year, effective the date of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2001 Kan. Ct. R. Annot. 224).
It Is Further Ordered that respondent shall be subject to all of the reinstatement requirements, including a hearing as provided by Supreme Court Rule 219 (2001 Kan. Ct. R. Annot. 285).
It Is Further Ordered that respondent fully comply with Supreme Court Rule 218 (2001 Kan. Ct. R. Annot. 276), that the costs of these proceedings be assessed to the respondent, and this opinion be published in the official Kansas Reports.
Davis, J., not participating.
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The opinion of the court was delivered by
Allegrucci, J.:
J’Noel Gardiner appealed from the district court’s entry of summary judgment in favor of Joseph M. Gardiner, III, (Joe) in the probate proceeding of Marshall G. Gardiner. The district court had concluded that the marriage between Joe’s father, Marshall, and J’Noel, a post-operative male-to-female transsexual, was void under Kansas law.
The Court of Appeals reversed and remanded for the district court’s determination whether J’Noel was male or female at the time the marriage license was issued. See In re Estate of Gardiner, 29 Kan. App. 2d 92, 22 P.3d 1086 (2001). The Court of Appeals directed the district court to consider a number of factors in ad dition to chromosomes. Joe’s petition for review of the decision of the Court of Appeals was granted by this court.
The following facts regarding J’Noel’s personal background are taken from the opinion of the Court of Appeals:
“J’Noel was bom in Green Bay, Wisconsin. J’Noel’s original birth certificate indicates J’Noel was bom a male. The record shows that after sex reassignment surgery, J’Noel’s birth certificate was amended in Wisconsin, pursuant to Wisconsin statutes, to state that she was female. J’Noel argued that the order drafted by a Wisconsin court directing the Department of Health and Social Services in Wisconsin to prepare a new birth record must be given full faith and credit in Kansas.
“Marshall was a businessman in northeast Kansas who had accumulated some wealth. He had one son, Joe, from whom he was estranged. Marshall’s wife had died some time before he met J’Noel. There is no evidence that Marshall was not competent. Indeed, both Marshall and J’Noel possessed intelligénce and real world experience. J’Noel had a Ph.D in finance and was a teacher at Park College.
“J’Noel met Marshall while on the faculty at Park College in May 1998. Marshall was a donor to the school. After the third or fourth date, J’Noel testified that Marshall brought up marriage. J’Noel wanted to get to know Marshall better, so they went to Utah for a trip. When asked about when they became sexually intimate, J’Noel testified that on this trip, Marshall had an orgasm. J’Noel stated that sometime in July 1998, Marshall was told about J’Noel’s prior history as a male. The two were married in Kansas on September 25, 1998.
“There is no evidence in the record to support Joe’s suggestion that Marshall did not know about J’Noel’s sex reassignment. It had been completed years before Marshall and J’Noel met. Nor is there any evidence that Marshall and J’Noel were not compatible.
“Both parties agree that J’Noel has gender dysphoria or is a transsexual. J’Noel agrees that she was bom with male genitalia. In a deposition, J’Noel testified that she was bom with a ‘birth defect’ — a penis and testicles. J’Noel stated that she thought something was ‘wrong’ even prepuberty and that she viewed herself as a girl but had a penis and testicles.
“J’Noel’s journey from perceiving herself as one sex to the sex her brain suggests she was, deserves to be detailed. In 1991 and 1992, J’Noel began electrolysis and then thermolysis to remove body hair on the face, neck, and chest. J’Noel was married at the time and was married for 5 years. Also, beginning in 1992, J’Noel began taking hormones, and, in 1993, she had a tracheal shave. A tracheal shave is surgery to the throat to change the voice. All the while, J’Noel was receiving therapy and counseling.
“In February 1994, J’Noel had a bilateral orchiectomy to remove the testicles. J’Noel also had a forehead/eyebrow lift at this time and rhinoplasty. Rhinoplasty refers to plastic surgery to alter one’s nose. In July 1994, J’Noel consulted with a psychiatrist, who opined that there were no signs of thought disorder or major affective disorder, that J’Noel fully understood the nature of the process of transsexual change, and that her life history was consistent with a diagnosis of transsexualism. The psychiatrist recommended to J’Noel that total sex reassignment was the next appropriate step in her treatment.
“In August 1994, J’Noel underwent further sex reassignment surgery. In this surgery, Eugene Schrang, M.D., J’Noel’s doctor, essentially cut and inverted the penis, using part of the skin to form a female vagina, labia, and clitoris. Dr. Schrang, in a letter dated October 1994, stated that J’Noel has a ‘fully functional vagina’ and should be considered ‘a functioning, anatomical female.’ In 1995, J’Noel also had cheek implants. J’Noel continues to take hormone replacements.
“After the surgery in 1994, J’Noel petitioned the Circuit Court of Outagamie County, Wisconsin, for a new birth certificate which would reflect her new name as J’Noel Ball and sex as female. The court issued a report ordering the state registrar to make these changes and issue a new birth certificate. A new birth certificate was issued on September 26, 1994. The birth certificate indicated the child’s name as J’Noel Ball and sex as female. J’Noel also has had her driver’s license, passport, and health documents changed to reflect her new status. Her records at two universities have also been changed to reflect her new sex designation.” 29 Kan. App. 2d at 96-98.
Before meeting Marshall, J’Noel was married to S.P., a female. J’Noel and S.P. met and began living together in 1980, while J’Noel was in college. They married in 1988. J’Noel testified she and S.P. engaged in heterosexual relations during their relationship. J’Noel believed she was capable of fathering children, and the couple used birth control so S.P. would not become pregnant. J’Noel and S.P. divorced in May 1994.
J’Noel Ball and Marshall Gardiner were married in Kansas in September 1998. Marshall died intestate in August 1999. This legal journey started with Joe filing a petition for letters of administration, alleging that J’Noel had waived any rights to Marshall’s estate. J’Noel filed an objection and asked that letters of administration be issued to her. The court then appointed a special administrator. Joe amended his petition, alleging that he was the sole heir in that the marriage between J’Noel and Marshall was void since J’Noel was bom a man. J’Noel argues that she is a biological female and was at the time of her marriage to Marshall. There is no dispute that J’Noel is a transsexual.
According to Stedman’s Medical Dictionary 1841 (26th ed. 1995), a transsexual is a “person with the external genitalia and secondary sexual characteristics of one sex, but whose personal identification and psychosocial configuration is that of the opposite sex; a study of morphologic, genetic, and gonadal structure may be genitally congruent or incongruent.” A post-operative transsexual, such as J’Noel, is a person who has undergone medical and surgical procedures to alter “external sexual characteristics so that they resemble tiróse of the opposite sex.” Stedman’s Med. Diet. 1841 (26th ed. 1995). The external sexual characteristics may include genitalia, body and facial hair, breasts, voice, and facial features.
Joe opposed J’Noel’s receiving a spousal share of Marshall’s estate on several grounds — waiver, fraud, and void marriage in that J’Noel remained a male for the purpose of the “opposite sex” requirement of K.S.A. 2001 Supp. 23-101.
On cross-motions for summary judgment, the district court denied J’Noel’s motion by declining to give full faith and credit to J’Noel’s Wisconsin birth certificate, which had been amended as to sex and name. Joe’s waiver argument was based on a writing that purports to waive J’Noel’s interests in Marshall’s property. The district court declined to conclude as a matter of law that the writing constituted a waiver. The factual issue of fraud was not decided on summary judgment. The district court granted Joe’s motion with regard to the validity of the marriage on the ground that J’Noel is a male.
J’Noel appealed from tire district court’s entry of summary judgment against her and in Joe’s favor. Joe did not cross-appeal. The Court of Appeals affirmed the district court’s ruling denying J’Noel’s motion for summary judgment. J’Noel did not file a cross-petition for review of that ruling, and it is not before this court. Since Joe did not file a cross-appeal of the district court’s decision on waiver and fraud, those issues are likewise not before the court. The sole issue for review is whether the district court erroneously entered summary judgment in favor of Joe on the ground that J’Noel’s marriage to Marshall was void.
On the question of validity of the marriage of a post-operative transsexual, there are two distinct “lines” of cases. One judges validity of the marriage according to the sexual classification assigned to the transsexual at birth. The other views medical and surgical procedures as a means of unifying a divided sexual identity and determines the transsexual’s sexual classification for the purpose of marriage at the time of marriage. The essential difference between the two approaches is the latter’s crediting a mental component, as well as an anatomical component, to each person’s sexual identity.
Among the cases brought to the court’s attention not recognizing a mental component or the efficacy of medical and surgical procedures are Corbett v. Corbett, 2 All E.R. 33 (1970); In re Ladrach, 32 Ohio Misc. 2d 6, 513 N.E.2d 828 (1987); and Littleton v. Prange, 9 S.W.3d 223 (Tex. Civ. App. 1999), cert. denied 531 U.S. 872 (2000). Recognizing them are M.T. v. J.T., 140 N.J. Super 77, 355 A.2d 204, cert. denied 71 N.J. 345 (1976); and In re Kevin, FamCA 1074 (File No. SY8136 OF 1999, Family Court of Australia, at Sydney, 2001).
The district court, in the present case, relied on Littleton. The Court of Appeals relied on M.T. In re Kevin was decided after the Court of Appeals issued its opinion, and it cites In re Estate of Gardiner with approval; review of that case by the full Family Court of Australia has been heard, but an opinion has not yet been issued.
Littleton was the source for the district court’s language and reasoning. The Texas court’s statement of the issue was: “[C]an a physician change the gender of a person with a scalpel, drugs and counseling, or is a person’s gender immutably fixed by our Creator at birth?” 9 S.W.3d at 224. For what purported to be its findings of fact, the district court restated the Texas court’s conclusions nearly verbatim (See 9 S.W.3d at 230-31):
“Medical science recognizes that there are individuals whose sexual self-identity is in conflict with their biological and anatomical sex. Such people are termed transsexuals. . . .
“[T]ranssexuals believe and feel they are members of the opposite sex. . . . J’Noel is a transsexual.
"[T]hrough surgery and hormones, a transsexual male can be made to look like a woman, including female genitalia and breasts. Transsexual medical treatment, however, does not create the internal sexual organs of a woman, except for the vaginal canal. There is no womb, cervix or ovaries in the post-operative transsexual female.
“[T]he male chromosomes do not change -with either hormonal treatment or sex reassignment surgery. Biologically, a post-operative female transsexual is still a male. . . .
“The evidence fully supports that J’Noel, bom male, wants and believes herself to be a woman. She has made every conceivable effort to make herself a female.
“[S]ome physicians would consider J’Noel a female; other physicians would consider her still a male. Her female anatomy, however, is still all man-made. The body J’Noel inhabits is a male body in all aspects other than what the physicians have supplied.
“From that the Court has to conclude, and from the evidence that’s been submitted under the affidavits, as a matter of law, she — J’Noel is a male.”
The Court of Appeals found no error in the district court’s not giving the Wisconsin birth certificate full faith and credit. 29 Kan. App. 2d at 125. With regard to the validity of the marriage, the Court of Appeals reversed and remanded for the district court’s determination whether J’Noel was male or female, for the purpose of K.S.A. 2001 Supp. 23-101, at the time the marriage license was issued. 29 Kan. App. 2d at 127-28.
The Court of Appeals rejected the reasoning of Littleton “as a rigid and simplistic approach to issues that are far more complex than addressed in that opinion.” 29 Kan. App. 2d at 127. The Court of Appeals “look[ed] with favor on the reasoning and the language” of M.T. 29 Kan. App. 2d at 128. The Court of Appeals engaged in the following discussion of the decision in M.T.:
“In M.T., a husband and wife were divorcing, and the issue was support and maintenance. The husband argued that he should not have to pay support to his wife because she was a male, making the marriage void. The issue before the court, similar to that before this court, was whether the marriage of a post-operative male-to-female transsexual and a male was a lawful marriage between a man and a woman. The court found that it was a valid marriage. 140 N.J. Super. at 90.
“In affirming the lower court’s decision, the court noted the English court’s previous decision in Corbett. 140 N.J. Super. at 85-86. The court rejected the reasoning of Corbett, though, finding that ‘for marital purposes if the anatomical or genital features of a genuine transsexual are made to conform to the person’s gender, psyche or psychological sex, then identity by sex must be governed by the congruence of these standards.’ 140 N.J. Super. at 87. Since the court found that the wife’s gender and genitalia were no longer ‘discordant’ and had been harmonized by medical treatment, the court held that the wife was a female at the time of her marriage and that her husband, then, was obligated to support her. 140 N.J. Super. at 89-90.
“The importance of the holding in M. T. is that it replaces the biological sex test with dual tests of anatomy and gender, where ‘for marital purposes if the anatomical or genital features of a genuine transsexual are made to conform to the person’s gender, psyche or psychological sex, then identity by sex must be governed by the congruence of these standards.’ 140 N.J. Super. at 87.
“The M.T. court further stated:
‘In this case the transsexual’s gender and genitalia are no longer discordant; they have been harmonized through medical treatment. Plaintiff has become physically and psychologically unified and fully capable of sexual activity consistent with her reconciled sexual attributes of gender and anatomy. Consequently, plaintiff should be considered a member of the female sex for marital purposes. It follows that such an individual would have the capacity to enter into a valid marriage relationship with a person of the opposite sex and did so here. In so ruling we do no more than give legal effect to a fait accompli, based upon medical judgment and action which are irreversible. Such recognition will promote the individual’s quest for inner peace and personal happiness, while in no way dis-serving any societal interest, principle of public order or precept of morality.’ 140 N.J. Super at 89-90.
“In M.T., the husband was arguing that he did not owe any support because his wife was a man. However, in the record, it was stated that the wife had a sex reassignment operation after meeting the husband. Her husband paid for tire operation. The husband later deserted the wife and then tried to get out of paying support to someone he had been living with since 1964 and had been married to for over 2 years.” 29 Kan. App. 2d at 113-14.
In his petition for review, Joe complained that the Court of Appeals failed to “ask the fundamental question of whether a person can actually change sex within the context of K.S.A. 23-101.” On the issue of the validity of the marriage, Joe’s principal arguments were that the Court of Appeals failed to give K.S.A. 2001 Supp. 23-101 its plain and unambiguous meaning and that the Court of Appeals’ opinion improperly usurps the legislature’s policy-making role.
K.S.A. 2001 Supp. 23-101 provides:
“The marriage contract is to be considered in law as a civil contract between two parties who are of opposite sex. All other marriages are declared to be contrary to the public policy of this state and are void. The consent of the parties is essential. 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.”
Joe’s principal argument is that the statutory phrase is plain and unambiguous. His statements of the issue and his position, how ever, go beyond the statutory phrase to pin down the time when the two parties are of opposite sex. The plain and unambiguous meaning of K.S.A. 2001 Supp. 23-101, according to Joe, is that a valid marriage must be between two persons who are of opposite sex at the time of birth.
Applying the statute as Joe advocates, a male-to-female transsexual whose sexual preference is for women may marry a woman within the advocated reading of K.S.A. 2001 Supp. 23-101 because, at the time of birth, one marriage partner was male and one was female. Thus, in spite of the outward appearance of femaleness in both marriage partners at the time of the marriage, it would not be a void marriage under the advocated reading of K.S.A. 2001 Supp. 23-101. As the Court of Appeals stated in regard to J’Noel’s argument that K.S.A. 2001 Supp. 23-101, as applied by the district court, denied her right to marry: “When J’Noel was found by the district court to be a male for purposes of Kansas law, she was denied the right to marry a male. It logically follows, therefore, that the court did not forbid J’Noel from marrying a female.” 29 Kan. App. 2d at 126.
Joe’s fallback argument is that the legislature’s intent was to uphold “traditional marriage,” interpreting K.S.A. 2001 Supp. 23-101 so that it invalidates a marriage between persons who are not of the opposite sex, i.e., a biological male and a biological female.
Joe also contends that the legislature did not intend for the phrase “opposite sex” in K.S.A. 2001 Supp. 23-101 to allow for a change from the sexual classification assigned at birth.
The other facet of Joe’s argument is that policy questions are for the legislature rather than the courts. In K.S.A. 2001 Supp. 23-101 and K.S.A. 2001 Supp. 23-115, the legislature declared the public policy of recognizing only marriages between a man and a woman. K.S.A. 2001 Supp. 23-115 provides:
“All marriages contracted without this state, which would be valid by the laws of the countiy in which the same were contracted, shall be valid in all courts and places in this state. It is the strong public policy of this state only to recognize as valid marriages from other states that are between a man and a woman.”
The Court of Appeals extensively reviewed cases involving transsexuals from other states and countries. Rather than restate what already has been well stated, the Court of Appeals’ discussion of cases is, in part, quoted here:
“The cases generally fall into three categories: cases dealing with the amendment of identification records, usually birth certificate name and/or sex changes; cases dealing with discrimination, most pointedly in the workplace; and cases dealing with marriage between a transsexual and a nontranssexual. An additional case which will be discussed deals with transsexuals and competition in sporting events. The analysis will follow the cases chronologically.
“The first case in the United States to deal with transsexualism involved a petition for a change of sex on a birth certificate. In Mtr. of Anonymous v. Weiner, 50 Misc. 2d 380, 270 N.Y.S.2d 319 (1966), a post-operative transsexual who had assumed the name and role of a female applied to the Bureau of Vital Statistics in the New York City Health Department for a new birth certificate. The Bureau requested guidance from tire Board of Health, who, in turn, called on a committee on public health of tire New York Academy of Medicine to investigate the issue and malee recommendations. The group called on to assist included gynecologists, endocrinologists, cytogeneticists, psychiatrists, and a lawyer.
“The transsexual’s application in Weiner was denied. In a resolution passed by the Board of Health, it was stated that ‘ “ ‘an individual bom one sex cannot be changed for the reasons proposed by the request which was made to us. Sex can be changed where there is an error, of course, but not when there is a later attempt to change psychological orientation of the patient and including such surgery as goes with it.’ ” ’ 50 Misc. 2d at 383.
“However, a civil court in New York, in 1968 and then again in 1970, granted an application for a change of name to a post-operative transsexual. Matter of Anonymous, 57 Misc. 2d 813, 293 N.Y.S.2d 834 (1968); Matter of Anonymous, 64 Misc. 2d 309, 314 N.Y.S.2d 668 (1970). In the 1968 case of Anonymous, a male-to-female transsexual petitioned the court to order the Bureau of Vital Statistics of the Department of Health of the City of New York to change his birth certificate to reflect a name and sex change. Based on New York law, the civil court lacked jurisdiction to change the sex on the birth certificate. 57 Misc. 2d at 813-14. Even so, the court still criticized the findings of the Academy.
“The court noted that all male organs had been removed and that the petitioner could no longer have sex as a male. The court stated that where, with or without medical intervention, the psychological sex and the anatomical sex are ‘harmonized,’ then the social sex or gender of the individual should conform to the harmonized status of the individual, and if such conformity requires a change in statistical information, the changes should be made. 57 Misc. 2d at 816.
“Later, in Mtr. of Hartin v. Dir. of Bur. of Recs., 75 Misc. 2d 229, 232, 347 N.Y.S.2d 515 (1973), the appellate court reaffirmed the decision in Weiner. We can conclude that as of the filing date of Hartin, New York was stating that its birth records should reflect the sex of an individual as determined at birth.
“The next case, often cited, but perhaps colored by the fact that the parties lived together only 14 days of their 3-month marriage, is Corbett v. Corbett, 2 All E.R. 33 (1970), an English opinion dealing with transsexualism. One of the parties was a male-to-female transsexual and former female impersonator named April Ashley, who married Arthur Corbett. Arthur was a homosexual and transvestite ‘prone to all kinds of sexual fantasies and practices.’ 2 All. E.R. at 38. An English court in the probate, divorce, and admiralty division ruled that a marriage between a post-operative male-to-female transsexual and a male was void. 2 All. E.R. at 50.
“After the surgery, the respondent had her passport changed to reflect a female name. The respondent also had insurance papers changed to reflect her sex as female. An attempt to change the respondent’s birth certificate failed.
“In Corbett, some dispute existed as to whether the respondent was ‘intersexed,’ which was described then as a medical concept meaning ‘something between intermediate and indeterminate sex.’ 2 All E.R. at 43. The court rejected this notion, finding enough evidence to support the view that the respondent was bom a male. 2 All E.R. at 43.
“The court found that biological sex is determined at birth and cannot be changed by natural or surgical means. The respondent’s operation, the court stated, cannot affect the true sex. The only cases where the term ‘change of sex’ is appropriate, the court opined, is when there has been a mistake as to sex at birth that is subsequently revealed in a medical examination. 2 All E.R. at 47.
“In dealing with the argument that it is illogical for the court to treat the respondent as a male while other paperwork may have been changed to say differently, the court declared: ’Marriage is a relationship which depends on sex and not on gender.’ 2 All E.R. at 49. The court distinguished marriage from other social situations. 2 All E.R. at 49. Sex is clearly an essential determinant of the relationship 'in marriage, the court stated, as it is recognized as the union between a man and woman. The court established a three-part test in determining what is a person’s sex for purposes of the law, stating:
‘Having regard to the essentially heterosexual character of the relationship which is called marriage, the criteria must ... be biological, for even the most extreme degree of transsexualism in a male or the most severe hormonal imbalance which can exist in a person with male chromosomes, male gonads and male genitalia cannot reproduce a person who is naturally capable of performing the essential role of a woman in marriage. In other words, the law should adopt in the first place . . . the chromosomal, gonadal, and genital tests, and if all three are congruent, determine the sex for the purpose of marriage accordingly, and ignore any operative intervention.’ 2 All E.R. at 48.
“The unusual facts and die lack of a relationship in Corbett make it of questionable precedential value here. We recognize that it may have been the first time a court addressed these issues in the context of marriage.
“A change in thinking can perhaps be observed beginning in 1975 in Darnell v. Lloyd, 395 F. Supp. 1210 (D. Conn. 1975). The petitioner, called a male at birth, had a sex change operation and later requested that the Commissioner of Health change the sex on his birth certificate from male to female. The Commissioner refused to make such a change. The transsexual sued to have the Commissioner ordered to make this change, and the Commissioner moved for summary judgment.
“The court denied the motion for summary judgment, finding that the Commissioner of Health must show some substantial state interest in his policy of refusing to change a birth certificate to reflect current sexual status unless that was also the status at birth. 395 F. Supp. at 1214. The court found that this heightened level of scrutiny exists because the court felt that the fundamental right to marry could be implicated by the Commissioner’s decision. 395 F. Supp. at 1214.
“The court held that the Commissioner of Health had not met his burden of proof. 395 F. Supp. at 1214. It indicated that the exact anatomical condition of the petitioner at birth was unclear, as were all of the details of the operation and present circumstances. 395 F. Supp. at 1213.
“The case of M.T. v. J.T., 140 N.J. Super. 77, 355 A.2d 204, cert. denied 71 N.J. 345 (1976), deserves greater attention, in our view, than Corbett, Hartin, or Darnell.
“In M.T., a husband and wife were divorcing, and the issue was support and maintenance. The husband argued that he should not have to pay support to his wife because she was a male, making the marriage void. The issue before the court, similar to that before this court, was whether the marriage of a post-operative male-to-female transsexual and a male was a lawful marriage between a man and a woman. The court found that it was a valid marriage. 140 N.J. Super. at 90.
“In affirming the lower court’s decision, the court noted the English court’s previous decision in Corbett. 140 N.J. Super. at 85-86. The court rejected the reasoning of Corbett, though, finding that ‘for marital purposes if the anatomical or genital features of a genuine transsexual are made to conform to the person’s gender, psyche or psychological sex, tiren identity by sex must be governed by the congruence of these standards.’ 140 N.J. Super. at 87. Since the court found that the wife’s gender and genitalia were no longer ‘discordant’ and had been harmonized by medical treatment, the court held that the wife was a female at the time of her marriage and that her husband, then, was obligated to support her. 140 N.J. Super. at 89-90.
“The importance of the holding in M.T. is that it replaces the biological sex test with dual tests of anatomy and gender, where ‘for marital purposes if the anatomical or genital features of a genuine transsexual are made to conform to the per son’s gender, psyche or psychological sex, then identity by sex must be governed by the congruence of tírese standards.’ 140 N.J. Super. at 87.
“The M.T. court further stated:
Tn this case the transsexual’s gender and genitalia are no longer discordant; they have been harmonized through medical treatment. Plaintiff has become physically and psychologically unified and fully capable of sexual activity consistent with her reconciled sexual attributes of gender and anatomy. Consequently, plaintiff should be considered a member of tire female sex for marital purposes. It follows that such an individual would have the capacity to enter into a valid marriage relationship with a person of tire opposite sex and did so here. In so ruling we do no more than give legal effect to a fait accompli, based upon medical judgment and action which are irreversible. Such recognition will promote the individual’s quest for inner peace and personal happiness, while in no way dis-serving any societal interest, principle of public order or precept of morality.’ 140 N.J. Super. at 89-90.
“In M.T., the husband was arguing that he did not’ owe any support because his wife was a man. However, in the record, it was stated that the wife had a sex reassignment operation after meeting the husband. Her husband paid for the operation. The husband later deserted the wife and then tried to get out of paying support to someone he had been living with since 1964 and had been married to for over 2 years.
“In 1977, the Oregon Supreme Court was faced with the issue of whether a birth certificate of a transsexual should be changed to reflect a different name and sex. K. v. Health Division, 277 Or. 371, 560 P.2d 1070 (1977). In K., the court first looked to the statutes regarding birth certificate changes. The court found limited circumstances existed under the law for birth certificate amendments. The amendments, further, only dealt with name changes and only in the case of adoption or if a parent name changes. 277 Or. at 374-75.
“Despite the Court of Appeals finding that the birth certificate could be amended, the Oregon Supreme Court held that no such authority existed in Oregon to change the birth certificate to reflect a change in sex or name in this instance. 277 Or. at 374-76. The court stated that ‘it has not been demonstrated, by legislative history or otherwise, that it would be “at variance with the apparent policy” of either the legislature or the State Board of Health to deny the issuance of a “new birth certificate” to a transsexual.’ 277 Or. at 375. The court further stated:
Tn our opinion, it is at least equally, if not more reasonable, to assume that in enacting these statutes it was the intent of the legislature of Oregon that a “birth certificate” is an historical record of the facts as they existed at the time of birth, subject to the specific exceptions provided by statute.’ 277 Or. at 375.
“In so finding, the Supreme Court declared that ‘it is not for this court to decide which view is preferable. On the contrary, we hold that this is a matter of public policy to be decided by the Oregon legislature.’ 277 Or. at 376.
“In 1984, the United States Court of Appeals, Seventh Circuit, analyzed an issue concerning transsexualism and workplace discrimination. In Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984), cert. denied 471 U.S. 1017 (1985), a post-operative male-to-female transsexual who was a pilot for Eastern Airlines was fired in 1981, shortly after sex reassignment surgery. The transsexual sued the airline, alleging that the employer violated Title VII by discharging her from her position as a pilot. A federal district court agreed with the transsexual, finding discrimination against this person as both a female and a transsexual, and the airline appealed. 742 F.2d at 1082.
“The Seventh Circuit disagreed with the district court. The court stated that while it does not condone discrimination in any form, it must hold that Title VII does not protect transsexuals. 742 F.2d at 1084. First, the court stated: Tt is a maxim of statutory construction drat, unless otherwise defined, words should be given their ordinary, common meaning.’ 742 F.2d at 1085. The court explained that the words of Tide VII do not oudaw discrimination against a person who has a sexual identity disorder. It noted that the law clearly prohibits discrimination against women because they are women or men because they are men; it does not protect a person bom with a male body who believes himself to be female or a person bom with a female body who believes herself to be male. 742 F.2d at 1085.
“After noting that nothing was said in the legislative history about transsexuals, the court stated that it appears clear that Congress did not intend the legislation to apply to anything other than ‘the traditional concept of sex.’ 742 F.2d at 1085. Had Congress intended it to apply, surely it would have said so, the court explained. 742 F.2d at 1085. Thus, the court declined to expand the definition of ‘sex’ as used in Title VII beyond its ‘common and traditional interpretation,’ stating: “We agree with the Eighth and Ninth Circuits that if the term “sex” as it is used in Title VII is to mean more than biological male or biological female, the new definition must come from Congress.’ 742 F.2d at 1087. See Sommers v. Budget Marketing, Inc., 667 F.2d 748, 750 (8th Cir. 1982); Holloway v. Arthur Andersen & Co., 566 F.2d 659, 662-63 (9th Cir. 1977).
“The two most recent decisions in the United States in the area of transsexualism have dealt with the precise issue before this court, that is, whether two individuals, biologically and legally of the same sex at birth, may contract to marry each other.
“In 1987, a probate court in Ohio addressed the question in the case of In re Ladrach, 32 Ohio Misc. 2d 6, 513 N.E.2d 828 (1987). In Ladrach, a post-operative male-to-female transsexual and the transsexual’s fiancé, a biological male, applied for a marriage license. The application indicated that the transsexual had been married two times before to spouses of the female gender and that both marriages had ended in divorce.
“After reading the application, the clerk at the license bureau called a judge who reviewed the application. The judge also reviewed a signed letter by a physician indicating that the transsexual had undergone sex reassignment surgery. After reviewing the marriage statute in Ohio, the judge concluded that the application must be denied. Later, the transsexual also filed a petition to have the sex corrected on the transsexual’s birth certificate to state ‘Girl’ instead of‘Boy.’ This application was dismissed, and the transsexual filed a complaint for declaratory judgment to have the birth certificate changed and the marriage license issued.
“The Ohio Probate Court found that the birth certificate, based on Ohio law, should not be changed. The court stated that its statute is a ‘correction’ type statute, which permits a court to correct errors such as spelling of names, dates, race and sex, if in fact there was an error. 32 Ohio Misc. 2d at 8. Since there was no error in the designation of the transsexual as a boy, the application, the court stated, must be dismissed as to the birth certificate change. 32 Ohio Misc. 2d at 8.
“The court concluded, after a review of prior case law, law review articles, and the posthearing brief of the applicant, that no authority existed in Ohio for the issuance of a marriage license to a post-operative male-to-female transsexual and a male person. 32 Ohio Misc. 2d at 10. If it is to be the public policy of the state of Ohio to issue marriage license in such cases, the court stated, ‘it is this court’s opinion that the legislature should change the statutes.’ 32 Ohio Misc. 2d at 10.
“The most recent decision in the United States regarding transsexualism was decided by the Texas Court of Appeals in Littleton v. Prange, 9 S.W.3d 223 (Tex. Civ. App. 1999), cert. denied 531 U.S. 872 (2000). In J’Noel’s case, the district court appears to rely heavily on this case in rendering its decision that J’Noel is a male, quoting some of its language verbatim. In Littleton, a transsexual, now called Christie, who was bom a man but had undergone sex reassignment surgery, brought a medical malpractice suit under Texas’ wrongful death statute as a surviving spouse of a male patient. The doctor who was sued filed a motion for summary judgment, asserting that Christie was a male and, therefore, could not be the surviving spouse of another man. The trial court granted summary judgment to the doctor, and Christie appealed.
“Christie had a name and sex change made on her birth certificate during pendency of the suit. During the surgical procedures, Christie’s penis, scrotum, and testicles were removed, and a vagina and labia were constmcted. Christie also had breast construction surgery. One of Christie’s doctors testified that Christie has the capacity to function sexually as a female’ after the surgery. 9 S.W.3d at 225. Doctors testified that medically Christie was a woman.
“Christie married a man by the name of Jonathon in 1989, approximately 9 or 10 years after sex reassignment surgery. The two lived together until Jonathon’s death in 1996, after which time Christie filed suit against Jonathon’s doctor. In Christie’s affidavit, Christie asserted that Jonathon knew about Christie’s background and sex reassignment surgery.
“The court in Littleton stated that in Texas, marriage must be between two parties of the opposite sex. 9 S.W.3d at 225. Further, in order for Christie to sue under the wrongful death statute in Texas, Christie must be the surviving spouse. 9 S.W.3d at 225. Thus, if Christie was a man, summary judgment would be ap propriate. After a brief review of what transsexualism is, the court next examined the case law in this area. The court discussed Corbett and the case of Anonymous v. Anonymous, 67 Misc. 2d 982, 325 N.Y.S.2d 499 (1971). The court also referenced such cases as M.T. v. J.T., In re Ladrach, and K. v. Health Division, 9 S.W.3d at 227-29.
“After a review of the case law, the court concluded that Christie was a male as a matter of law. 9 S.W.3d at 231. The court noted that this was an issue of first impression in Texas. 9 S.W.3d at 230. In line with previous cases, the court stated: ‘[I]t is for the legislature, should it choose to do so, to determine what guidelines should govern the recognition of marriages involving transsexuals. . . . It would be intellectually impossible for this court to write a protocol for when transsexuals would be recognized as having successfully changed their sex.’ 9 S.W.3d at 230.
“While Christie argued that amputation was ‘ “a pretty important step,” ’ the court, while agreeing, explained that it had ho authority to fashion a new law on transsexuals, or anything else. We cannot make law when no law exists: we can only interpret the written word of our sister branch of government, the legislature.’ 9 S.W.3d at 230.
“Thus, the court found that even though surgery and hormones can make a transsexual male look like a woman, including female genitalia, and in Christie’s case, even breasts, transsexual medicine does not create the internal sex organs of a woman (except for a man-made vaginal canal). There is no womb, cervix, or ovaries in tire post-operative transsexual female. The chromosomes do not change. Biologically, the post-operative female is still a male. 9 S.W.3d at 230. Even though some doctors would consider Christie a female and some a male, the court concluded: ‘Her female anatomy, however, is all man-made. The body that Christie inhabits is a male body in all aspects other tiran what the physicians have supplied.’ 9 S.W.3d at 231.
“A petition for writ of certiorari of the Littleton holding was denied by the United States Supreme Court on October 2, 2000.” 29 Kan. App. 2d at 1100-06.
J’Noel submitted a supplemental brief to this court in order to bring to the court’s attention a decision of the Family Court of Australia, which is dated October 12, 2001. J’Noel refers to the new decision as In re Kevin, FamCA 1074 (File No. SY8136 OF 1999, Family Court of Australia, at Sydney, 2001). In that case, applicants, Kevin and Jennifer, sought a declaration of the validity of their marriage. Kevin (f.ka. Kimberley) is a female-to-male transsexual. His birth certificate recorded his sex as “female,” but Kevin always considered himself to be a male. Kevin met Jennifer in October 1996. He told her of “his transsexual predicament.” They began living together in February 1997 and agreed to marry. In November 1977, Kevin had breast reduction surgery, and in September 1998 he had “a total hysterectomy with bilateral oophorectomy.” Slip op. at 8. Kevin has elected not to undergo further surgery involving construction of a penis or testes. Due to hormone treatments, Kevin’s voice has deepened and he has coarse hair growth on his face, chest, legs, and stomach. In October 1998, Kevin was issued a new birth certificate showing his sex as “male,” and he and Jennifer were married.
Jennifer became pregnant through in vitro fertilization with donated sperm and gave birth in November 1999. The couple plans to have another child in this way. Kevin’s history of transsexuality was made known to the infertility clinic where he and Jennifer applied for treatment, and after full consideration by a team of scientists, physicians, and nurses “ ‘it was decided that Kevin and Jennifer be considered a heterosexual couple with infertility consequent to absent sperm production.’ ” Slip op. at 10.
Two psychiatrists examined Kevin. Both concluded that Kevin is and always has been psychologically male. One wrote that he believed Kevin’s “ ‘brain sex or mental sex is male,’ ” and then stated his agreement with the opinion of Milton Diamond, an American professor of anatomy and reproductive biology, “ ‘that further research will confirm the present evidence that brain sex or mental sex is a reality which would explain the persistence of a gender identity in the face of or contrary to external influences.’ ” Slip op. at 11.
The record in the Australian case was richly and comprehensively developed, in sharp contrast with the record in the case before us. In In re Kevin, the court had the benefit of the testimony of many people who were colleagues, friends, and family of Jennifer and Kevin, as well as volumes of medical and scientific evidence.
Here, the district court’s conclusion of law, based on its findings of fact, was that “J’Noel is a male.” In other words, the district court concluded as a matter of law that J’Noel is a male and granted summary judgment on that basis.
The district court stated that it had considered conflicting medical opinions on whether J’Noel was male or female. This is not the sort of factual dispute that would preclude summary judgment because what the district court actually took into account was the medical experts’ opinions on the ultimate question. The district court did not take into account the factors on which the scientific experts based their opinions on the ultimate question. The district court relied entirely on the Texas court’s opinion in Littleton for the “facts” on which it based its conclusion of law. There were no expert witnesses or medical testimony as to whether J’Noel was a male or female. The only medical evidence was the medical report as to the reassignment surgery attached to J’Noel’s memorandum in support of her motion for partial summary judgment. There was included a “To Whom It May Concern” notarized letter signed by Dr. Schrang in which the doctor wrote: “She should now be considered a functioning, anatomical female.”
The Court of Appeals found deficiency in the district court’s entry of summary judgment. Supplying some of what the district court omitted, the Court of Appeals included in its opinion a review of some scientific literature. As courts typically do, the Court of Appeals also turned to a law journal article that reported on scientific matters relevant to legal issues. The Court of Appeals quoted extensively from Greenberg, Defining Male and Female: Intersexuality and the Collision between Law and Biology, 41 Ariz. L. Rev. 265, 278-92 (1999). 29 Kan. App. 2d at 101-09. Professor Greenberg’s thesis is that sexual identification is not simply a matter of anatomy, as demonstrated by a number of intersex conditions — chromosomal sex disorders, gonadal sex disorders, internal organ anomalies, external organ anomalies, hormonal disorders, gender identity disorder, and unintentioned amputation.
Thus, the essential difference between the line of cases, including Corbett and Littleton, that would invalidate the Gardiner marriage and the line of cases, including M.T. and In re Kevin, that would validate it is that the former treats a person’s sex as a matter of law and the latter treats a person’s sex as a matter of fact. In Littleton, the thread running throughout the majority’s opinion was that a person’s gender was immutably fixed by our Creator at birth. 9 S.W.3d at 224. Summing up its view of Christie’s mission to be accepted as a male, the court stated: “There are some things we cannot will into being. They just are.” 9 S.W.3d at 231. Corbett was approvingly described by the Texas majority as holding, “once a man, always a man.” 9 S.W.3d at 227. The Texas court decided that there was nothing for a jury to decide, and “[t]here are no significant facts that need to be decided.” 9 S.W.3d at 230. Because “Christie was created and bom a male,” the Texas court “h[e]ld, as a matter of law, that Christie Littleton is a male.” (Emphasis added.) 9 S.W.3d at 231.
In contrast, the Australian court stated:
“It will be necessary to identify whether particular propositions in the reasoning are statements of fact or of law. I take it to be a question of law what criteria should be applied in determining whether a person is a man or a woman for the purpose of the law of marriage, and a question of fact whether the criteria exist in a particular case,” In re Kevin, slip op. at 17.
The Australian court’s analytical approach echoes that of our Court of Appeals. Indeed, Gardiner is cited and discussed by the Australian court. Slip op. at 44-45, 51-52.
The Court of Appeals rejected the district court’s sex-at-birth-answers-the-question rationale in part, at least, because the Court of Appeals opined that there are a number of factors that make sexual identification at birth less than certain. In chromosomal sex disorders, the chromosomal pattern does not fit into the XX and XY binary system. Among the chromosomal sex disorders described by Greenberg are Klinefelter Syndrome, which affects approximately 1 in 500 to 1,000 babies identified at birth as males based on the appearance of external genitalia, in which multiple X chromosomes may become manifest in puberty with breast development. Turner Syndrome affects babies identified at birth as females, who in fact typically have only one X chromosome. As a result, a person with Turner Syndrome will have female appearing genitalia but may have unformed and nonfunctioning gonads. What the district court said about J’Noel, that “[t]here is no womb, cervix or ovaries,” also could be true for a person with Turner Syndrome who had been identified as a female at birth. Other anomalies and conditions that could not be accounted for in the district court’s approach are discussed in the Court of Appeals’ quotation of Greenberg at 29 Kan. App. 2d at 103-07. However, that is not the issue that is before this court in this appeal.
The district court concluded as a matter of law that J’Noel was a male because she had been identified on the basis of her external genitalia at birth as a male. The Court of Appeals held that other criteria should be applied in determining whether J’Noel is a man or a woman for the purpose of the law of marriage and remanded in order for the district court to apply the criteria to the facts of this case. In this case of first impression, the Court of Appeals adopted the criteria set forth by Professor Greenberg in addition to chromosomes: “gonadal sex, internal morphologic sex, external morphologic sex, hormonal sex, phenotypic sex, assigned sex and gender of rearing, and sexual identity,” as well as other criteria that may emerge with scientific advances. 29 Kan. App. 2d at 127.
The harmonizing of psychological and anatomical sex was the touchstone for the New Jersey court. It also was the touchstone for the Australian court. The New Jersey court reasoned that a person who has become physically and psychologically unified and fully capable of sexual activity consistent with her reconciled psychological sexual attributes should be considered a member of the reassigned sex for marital purposes:
“In this case the transsexual’s gender and genitalia are no longer discordant; they have been harmonized through medical treatment. Plaintiff has become physically and psychologically unified and fully capable of sexual activity consistent with her reconciled sexual attributes of gender and anatomy. Consequently, plaintiff should be considered a member of the female sex for marital purposes. It follows that such an individual would have the capacity to enter into a valid marriage relationship with a person of the opposite sex and did do so here. In so ruling we do no more than give legal effect to a fait accompli, based upon medical judgment and action which are irreversible.” M.T., 140 N.J. Super at 89-90.
The Australian court, too, concluded that the law should treat postoperative transsexuals as members of their reassigned sex. Critical to the court’s determination was successful reassignment surgery.
On appeal, J’Noel argues that the marriage is valid under Kansas law. However, in the district court, J’Noel’s sole argument was that the marriage was valid under Wisconsin law and Kansas must give full faith and credit to Wisconsin law. In fact, J’Noel argued that the validity of the marriage under Kansas law was not an issue in this case and intimated the marriage would be prohibited under K.S.A. 2001 Supp. 23-101. She argued, in part:
“The way that counsel for Joe Gardiner portrayed this issue, I think, is perhaps very clever and it’s probably something that I would have done if I were in his shoes. He said, can someone change their sex? Does a medical doctor or a judge have the right to change somebody’s sex?
“And the answer to that may, in fact, be no, but I think the more interesting question, and the question that’s really before the Court is one which I think was addressed by Counsel, and that is — perhaps that is an issue for the State legislature to deal with. In Wisconsin the State legislature has clearly held this issue. The statute in Wisconsin is clear, and this statute has been cited in the brief.
“However, we would urge the Court to rule on our motion favorably with respect to the sexual identity of Miss Gardiner and we would urge the Court to rule that as a matter of summary judgment she is, in fact, a female entitled, under the listed very narrow interpretation of Wisconsin law.
"... Does this, in fact, make J’Noel Gardiner a man — from a man to a woman?
“I think the answer is, well, no, not technically speaking, but we’re not talking about technically. We’re talking about that as a matter of law, not technically, not talking scientifically.. . .
“In this case, the Wisconsin legislature clearly contemplated a person who had sexual reassignment surgery is allowed to change her sexual identity in conformance with the surgery that transpired.
“Going onto the sexual identity question, I think that counsel for Joe Gardiner have very cleverly tried to posture the questions differently than it actually exists. This is really a very simple, straightforward matter. The question is, does Kansas need to give full faith and credit to the Wisconsin statute and court order and the birth certificate that order created under Wisconsin law?
“I think the answer to that is clearly yes. This Court is not being asked to determine whether or not J’Noel Gardiner is, in fact, a male or female. That is simply not a matter that is before this Court on this motion for summaiyjudgment, and we would submit even at the time of trial. Surgeons may testify as to certain scientific facts and they may disagree as to whether or not that Miss Gardiner is, in fact, a male or a female.
“There is no need for this Court to make a decision of whether or not Miss Gardiner is in fact, a man or a woman. That’s simply not a matter before this Court. The issue is whether or not Wisconsin is allowed to create their own laws and whether those laws and those decisions made by a Wisconsin tribunal and the administrative acts that follow that court order are in fact something that this Court is bound to follow.
“[W]e re not asking the Court to approve or disapprove of issues that relate to transsexuals marrying. We really encourage the Court to look at the very, very narrow issue here.
“Clearly, there’s issues for the Kansas legislature to look at, and I don’t think this Court or any other Court in Kansas should impose its own opinions on the legislature, but I think this Court does have a responsibility to enforce the law as it applies in other states to Kansas and give those other states full faith and credit.”
The district court granted summary judgment, finding the marriage void under K.S.A. 2001 Supp. 23-101. Summary judgment is appropriate when there is no genuine issue of material fact. Bergstrom v. Noah, 266 Kan. 847, 871, 974 P.2d 531 (1999). Here, the parties have supplied and agreed to tire material facts necessary to resolve this issue. There are no disputed material facts. We disagree with the decision reached by the Court of Appeals. We view the issue in this appeal to be one of law and not fact. The resolution of this issue involves the interpretation of K.S.A. 2001 Supp. 23-101. The interpretation of a statute is a question of law, and this court has unlimited appellate review. State v. Lewis, 263 Kan. 843, 847, 953 P.2d 1016 (1998).
The fundamental rule of statutory construction is that the intent of the legislature governs. In determining legislative intent, courts are not limited to consideration of the language used in the statute, but may look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested. Sowers v. Tsamolias, 23 Kan. App. 2d 270, 273, 929 P.2d 188 (1996). Words in common usage are to be given their natural and ordinary meaning. State v. Heffelman, 256 Kan. 384, 886 P.2d 823 (1994). When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. In re Marriage of Killman, 264 Kan. 33, 42-43, 955 P.2d 1228 (1998).
The words “sex,” “male,” and “female” are words in common usage and understood by the general population. Black’s Law Dictionary, 1375 (6th ed. 1999) defines “sex” as “[t]he sum of the peculiarities of structure and function that distinguish a male from a female organism; the character of being male or female.” Webster’s New Twentieth Century Dictionary (2nd ed. 1970) states the initial definition of sex as “either of the two divisions of organisms distinguished as male or female; males or females (especially men or women) collectively.” “Male” is defined as “designating or of the sex that fertilizes the ovum and begets offspring: opposed to female.” “Female” is defined as “designating or of the sex that produces ova and bears offspring: opposed to male.” [Emphasis added.] According to Black’s Law Dictionary, 972 (6th ed. 1999) a marriage “is the legal status, condition, or relation of one man and one woman united in law for life, or until divorced, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex.”
The words “sex,” “male,” and “female” in everyday understanding do not encompass transsexuals. The plain, ordinary meaning of “persons of the opposite sex” contemplates a biological man and a biological woman and not persons who are experiencing gender dysphoria. A male-to-female post-operative transsexual does not fit the definition of a female. The male organs have been removed, but the ability to “produce ova and bear offspring” does not and never did exist. There is no womb, cervix, or ovaries, nor is there any change in his chromosomes. As the Littleton court noted, the transsexual still “inhabits ... a male body in all aspects other than what the physicians have supplied.” 9 S.W.3d at 231. J’Noel does not fit the common meaning of female.
That interpretation of K.S.A. 2001 Supp. 23-101 is supported by the legislative history of the statute. That legislative history is set out in the Court of Appeals decision:
“The amendment to 23-101 limiting marriage to two parties of the opposite sex began its legislative history in 1975. The minutes of the Senate Committee on Judiciary for January 21, 1976, state that the amendment would ‘affirm the traditional view of marriage.’ The proposed amendment was finally enacted in 1980.
“K.S.A. 23-101 was again amended in 1996, when language was added, stating: ‘All other marriages are declared to be contrary to the public policy of this state and are void.’ This sentence was inserted immediately after the sentence limiting marriage to two parties of the opposite sex.
“In 1996, K.S.A. 23-115 was amended, with language added stating: ‘It is the strong public policy of this state only to recognize as valid marriages from other states that are between a man and a woman.’ ” 29 Kan. App. 2d at 99.
The Court of Appeals then noted:
“The legislative history contains discussions about gays and lesbians, but nowhere is there any testimony that specifically states that marriage should be prohibited by two parties if one is a post-operative male-to-female or female-to-male transsexual. Thus, the question remains: Was J’Noel a female at the time the license was issued for the purpose of the statute?” 29 Kan. App. 2d at 100.
We do not agree that the question remains. We view the legislative silence to indicate that transsexuals are not included. If the legislature intended to include transsexuals, it could have been a simple matter to have done so. We apply the rules of statutory construction to ascertain die legislative intent as expressed in the statute. We do not read into a statute something that does not come within the wording of the statute. Joe Self Chevrolet, Inc. v. Board of Sedgwick County Comm'rs, 247 Kan. 625, 633, 802 P.2d 1231 (1990).
In Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984), the federal district court, like the Court of Appeals here, held sex identity was not just a matter of chromosomes at birth, but was in part a psychological, self-perception, and social question. In reversing the district court, the Seventh Circuit stated:
“In our view, to include transsexuals within the reach of Tide VII far exceeds mere statutory interpretation. Congress had a narrow view of sex in mind when it passed the Civil Rights Act, and it has rejected subsequent attempts to broaden the scope of its original interpretation. For us to now hold that Tide VII protects transsexuals would taire us out of the realm of interpreting and reviewing and into die realm of legislating. See Gunnison v. Commissioner, 461 F.2d 496, 499 (7th Cir. 1972) (it is for the legislature, not the courts, to expand the class of people protected by a statute). This we must not and will not do.
“Congress has a right to deliberate on whether it wants such a broad sweeping of the untraditional and unusual witirin the term ‘sex’ as used in Tide VII. Only Congress can consider all the ramifications to society of such a broad view. We do not believe that the interpretation of the word ‘sex’ as used in the statute is a mere matter of expert medical testimony or the credibility of witnesses produced in court. Congress may, at some future time, have some interest in testimony of that type, but it does not control our interpretation of Title VII based on the legislative history or lack thereof. If Congress believes that transsexuals should enjoy the protection of Title VII, it may so provide. Until that time, however, we decline in behalf of tire Congress to judicially expand the definition of sex as used in Title VII beyond its common and traditional interpretation.” 742 F.2d at 1086.
We agree with the Seventh Circuit’s analysis in Ulane. It is well reasoned and logical. Although Ulane involves sex discrimination against Ulane as a transsexual and as a female under Title VII, the similarity of the basic issue and facts to the present case make it both instructive and persuasive. As we have previously noted, the legislature clearly viewed “opposite sex” in the narrow traditional sense. The legislature has declared that the public policy of this state is to recognize only the traditional marriage between “two parties who are of the opposite sex,” and all other marriages are against public policy and void. We cannot ignore what the legislature has declared to be the public policy of this state. Our responsibility is to interpret K.S.A. 2001 Supp. 23-101 and not to rewrite it. That is for the legislature to do if it so desires. If the legislature wishes to change public policy, it is free to do so; we are not. To conclude that J’Noel is of the opposite sex of Marshall would require that we rewrite K.S.A. 2001 Supp. 23-101.
Finally, we recognize that J’Noel has traveled a long and difficult road. J’Noel has undergone electrolysis, thermolysis, tracheal shave, hormone injections, extensive counseling, and reassignment surgery. Unfortunately, after all that, J’Noel remains a transsexual, and a male for purposes of marriage under K.S.A. 2001 Supp. 23-101. Wé are not blind to the stress and pain experienced by one who is bom a male but perceives oneself as a female. We recognize that there are people who do not fit neatly into the commonly recognized category of male or female, and to many life becomes an ordeal. However, the validity of J’Noel’s marriage to Marshall is a question of public policy to be addressed by the legislature and not By this court.
The Court of Appeals is affirmed in part and reversed in part; the district court is affirmed.
Davis, J., not participating.
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The opinion of the court was delivered by
Larson, J.:
This appeal raises the conflict between a lessor (Marvin Hrabe, et al, herein called Hrabe or lessor) and a lessee (Steve Crawford, d/b/a S & M Oil Co., herein called Crawford, lessee, or operator) over whether the implied covenants and rights under an oil and gas lease executed in 1962 between the present parties’ predecessors in interest allow the lessee to bring off-lease water on the leased premises to be used for injection purposes in a Kansas Corporation Commission (KCC) approved secondary recovery project without the lessor’s consent or agreement.
Background of the case
The oil and gas lease in issue is a Form 88 (Producers) 1-48 B+, which grants usage of Hrabe’s land “for the sole and only purpose of mining and operating for oil and gas, and laying pipe lines, and building tanks, power stations and structures thereon to produce, save and take care of said products.” An additional granting clause gives the lessee “the right to use, free of cost, gas, oil, and water produced on said land for its operation thereon, except water from wells of lessor.”
The history of operations on the property disclose a disposal agreement permitting the lessee to dispose of salt water from off-lease property, a pipeline right of way, complaints concerning salt water related to faulty operations, and the plugging and abandonment of the salt water disposal well in 1988.
The present controversy appears to have its beginnings in the spring and early summer of 1996. Crawford began injecting water from other leases he operated into one of the Hrabe wells. Crawford filed an application with the KCC to inject salt water from the Hrabe “B” lease, the Hrabe “C” lease, and the Baxa lease into the G-2 well on the Hrabe property. A hearing was held on this application on April 18, 1996, with Hrabe protesting the application, contending the only benefit would be to the Baxa lease and that pollution could be caused by poorly plugged wells.
The KCC order dated June 5, 1996, but not mailed until June 10, 1996, found (1) permitting the injection would prevent waste and likely allow additional oil to be recovered from the Hrabe.lease, (2) correlative rights would not be violated, and (3) usable water would be protected. The order acknowledged it could not be certain which direction the water flood would drive the oil but it was more likely the oil would be driven to the higher structure G-l and C-l wells on the Hrabe property.
The KCC conditioned its order by requiring Crawford to pay fines levied for injecting water without a permit and in a later writing stated the issue of the right to use off-lease water in the Hrabe G-2 well was a “civil matter between the operator and mineral/or surface owner which is outside the jurisdiction of the Commission.”
On June 7,1996, Hrabe stopped the off-site water from coming on his land by severing the pipeline running to the Hrabe G-2 well. Shortly thereafter, Crawford commenced this action by asking for a temporaiy restraining order to prevent Hrabe from damaging pipelines used to transport and inject salt water into the Hrabe G-2 well. The trial court initially denied the request.
In response to Hrabe’s summary judgment motion, the court found that Crawford did not have a right to dispose of salt water by injecting it in the G-2 well, either in law, under the lease, or by the right of way agreement. Hrabe asked for the trial court’s decision to be clarified to hold that Crawford could not bring off-lease salt water onto his property for any purpose, whether for disposal, or secondary recovery purposes. Additional briefs were requested and the parties entered into the following stipulation of facts:
1. Crawford has the authority from the KCC to operate a secondary recovery operation on the Hrabe lease.
2. Crawford’s secondary recovery operation consists of the injection of Kansas City sourced brine, from off Hrabe lease sources, into the Kansas City oil producing formation in the Hrabe lease wells.
3. Crawford’s secondary recovery operations on the Hrabe lease have increased the production of oil from the Hrabe lease wells.
4. The increased oil production is economically beneficial to interested parties.
5. The KCC approved Crawford’s utilization of off-lease brine for secondary recovery operations on the Hrabe lease, but the KCC’s position is that whether the water can be brought in is a civil matter between the landlord and the tenant.
6. The oil and gas lease in this case gives the tenant the right to use, free of charge, water produced on the premises for its operations.
7. A geologist has stated that the Hrabe lease oil wells produce insufficient salt water with which to adequately complete and continue ongoing secondary recovery operations by means of salt water injection.
8. Crawford produced salt water from other oil wells in the area (not on the Hrabe lease) sufficient to complete and continue sec ondary recovery operations by means of salt water injection on the Hrabe lease wells.
9. If Crawford did not have the off-lease brine available from off-lease sources, and if he was to continue utilization of secondary recovery operations by means of salt water injections into the Hrabe lease wells, he would have to drill a supply well to obtain water.
10. That supply well would produce Dakota water.
11. It is more economical for Crawford to use off-lease Kansas City brine in the Kansas City formation on the Hrabe lease wells than to undertake the cost to drill and maintain a supply well or to convert an abandoned hole on the Hrabe lease as a supply well.
12. A number of operators in the area pay the landowner to bring off-lease water onto the landowners property for injection purposes.
13. A number of operators in the area bring off-lease brine onto the premises under the assumption that they have an implied right to do so as a prudent operator.
14. Not all operators utilize secondary recovery operations.
15. A geologist’s testimony would indicate that a prudent operator would use secondary recovery operations to improve production from the Hrabe lease.
16. Dakota water, or water from any source, would serve the same purposes as off-lease Kansas Cily water injected into the Hrabe lease’s Kansas City formations.
17. A geologist would testify that for production purposes it is more beneficial that Kansas City formation generated water be injected into Kansas City oil producing formation.
Trial Court’s Ruling
The decision of the trial court confirmed that Hrabe concedes Crawford’s right to engage in secondary recovery operations but that Hrabe contended the lease itself prohibits the usage of off-lease water. The trial court’s decision discounted the lessor’s ar gument that the standard clause in the Producer’s Form 88 lease which states: “Lessee shall have the right to use, free of cost, gas, oil, and water produced on said land for its operations thereon, except for water from wells of lessor,” constituted a limitation on water usage to on-site water. The court held this provision is a grant of a right and not a restriction. In that the lease language does not prohibit or permit usage of off-lease water, the trial court held the lease offered little guidance.
The trial court concluded there was nothing in the lease or in the law implying that the right to engage in secondary recovery is limited to injection of water obtained on the lease. The trial court pointed out that the parties had stipulated that production increased from the use of off-lease water injection and to drill a supply well on the property would not be as economical or reasonable as using the off-lease water, and from this concluded that Crawford was not prohibited from using off-lease water in his secondary recovery operations. From this decision, Hrabe appeals.
Standard of Review
Our standard of review is as set forth in Heiman v. Parrish, 262 Kan. 926, 927, 942 P.2d 631 (1997), where we said:
“Where the controlling facts are based upon written or documentary evidence by way of pleadings, admissions, depositions, and stipulations, the trial court had no peculiar opportunity to evaluate the credibility of witnesses. In such situations, this court on appellate review has as good an opportunity to examine and consider the evidence as did the court below, and to determine de novo what the facts establish. Kneller v. Federal Land Bank of Wichita, 247 Kan. 399, 400, 799 P.2d 485 (1990). This court’s review of conclusions of law is unlimited. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).”
Analysis
The limited issue presented to us is whether a lessee/oil operator has the right without the lessor/landowner’s consent to bring off-lease salt water upon the leased premises for purpose of injecting it into the producing formation in a secondary recovery project.
Although some of the authority we quote relates to an operator’s usage of the leased property in its production operations, both par ties to this appeal are in agreement that Crawford has the right to conduct secondary recovery operations under the oil and gas lease.
Several courts and treatises have alluded to a potential duty upon the operator and lessee to engage in secondary recovery. See Williams, Problems in the Conservation of Gas, Second Annual Rocky Mountain Mineral Law Institute, 295,338 (1956) (quoting Merrill, Implied Covenants and Secondary Recovery, 4 Okla. L. Rev. 177, 181 [1951], which states that “since [secondary recovery methods] afford a means of increasing the return to the lessor from oil which would be left in the ground if operations were confined to primary methods, they constitute a part of the general duty of diligent operation of the premises”); 5 Williams and Meyers, Oil and Gas Law § 861.3, p. 429 (1997) (noting that there is “limited authority” that an oil and gas lessee may be subject to a duty to institute secondary recovery, but also suggesting such litigation would be rare due to the high burden of proof on the lessor to show the operations would be profitable); Ramsey v. Carter Oil Co., 74 F. Supp. 481, 482 (E.D. Ill. 1947) (“[I]t would seem that a reasonably prudent operator . . . has the right implied in an oil lease to adopt proper gas repressurizing systems for secondary recovery. . . . Indeed, it would seem that he is under the same duty to do so as he is to drill offset wells.”); Utilities Production Corporation v. Carter Oil Co., 72 F.2d 655, 659 (10th Cir. 1934) (while discussing the use of injected gas for secondary recovery, the court stated: “In fact, the lessor would doubtless have just cause to complain if an inefficient operation of the leases resulted from the failure of the lessees to use improved methods which came in common use during the terms of the leases.”). We have not recognized such a duty to this date in Kansas and point out that Hrabe has argued that he would rather have the wells on his property plugged and the oil and gas lease abandoned than subject his property to the unwanted and claimed illegal water from beyond his property’s boundaries.
Hrabe looks to the water being injected as placing a burden on his property which improperly benefits Crawford, who is also the operator of the two adjacent leases from which the water is obtained. He points to the language of the oil and gas lease which states that allowing water from his premises to be used as meaning the converse that off-lease water may not be used. He contends the trial court has improperly modified the lease to impose a burden which the original lessors and their successors never intended.
Hrabe asks that the wording of the lease be construed against the lessee preparer, citing Holmes v. Kewanee Oil Co., 233 Kan. 544, 552, 664 P.2d 1335 (1983). He suggests the trial court expanded the effect of the KCC order beyond its intended purpose.
While Hrabe admits that an operator does not need a landowner s permission to dispose of salt water produced on the landowner’s land, Colburn v. Parker & Parsley Dev. Co., 17 Kan. App. 2d 638, Syl. ¶¶ 1, 2, 842 P.2d 321 (1992), his basic position is that a different rule applies if the water comes from outside the leasehold property. In that scenario he argues the operator must have the landowner’s permission to dispose of or inject off-lease water on a landowner’s land even where the usage is for a KCC-approved secondary recoveiy project.
Finally, Hrabe argues the trial court’s decision provides operators with an unfair economic benefit of obtaining money to dispose of water from a third party under the guise of injecting it for secondary recoveiy process. Even though an early increase in production might exist, Hrabe says affirming the trial court may impose an undue detriment on him when oil migrates to adjoining leases. This is why he contends that secondary recoveiy projects should be unitized either by an agreement or pursuant to unitization authority under the control of the KCC . If such were the case, Hrabe admits he would not question the trial court’s decision.
Crawford argues, in accordance with the trial court’s decision, that the oil and gas lease neither permits nor prohibits off-lease water to aid in secondaiy recovery, resulting in “little guidance on the issue.” He points to the following quotes from Colburn:
“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 Services Gas Company, 131 F. Supp. 449 (D. Kan. 1955) (a mineral lessee may malee 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 lease land to conduct operations. 1 Pierce, Kansas Oil and Gas Handbook § 12.05, p. 12-8.” 17 Kan. App. 2d at 644-45.
Crawford quotes from Williams and Meyers, Oil and Gas Law §§ 218.5, 218.7, 218.8 (1997), to suggest that necessary usage of the surface is accepted and salt water produced from a lease may clearly be used in secondary recovery, but none of the cited sections sets forth the recognized right to use off-lease water for secondary recovery operations.
What Crawford really relies on are the factual stipulations of increased production, economic benefit to all parties, insufficient salt water for secondary recovery operations from Hrabe'wells, availability of ready water source, and that drilling of an additional well on the premises would be less economical. Crawford contends the trial court’s decision is grounded on good oil business practices and, having been blessed by the geologist, the KCC and the trial court should be affirmed on appeal.
The cases which have been decided by the courts of the oil producing states have discussed the ramification of subsurface migration of salt water or oil from one leasehold to another caused by secondary recovery operations, the implied right to dispose of salt water, and the effect of administrative agency control over secondary recovery projects, but amazingly little case law, treatise discussions, or law review writings bear precisely on the question we face.
We first discuss three cases upon which Hrabe relies but which we do not find to be precisely on point. In Robinson v. Robbins Petroleum Corporation, Inc., 501 S.W.2d 865 (Tex. 1973), the owner of the surface estate in land which was subject to an oil and gas lease sued the unit operator and mineral interest owners for wrongfully taking salt water from a well on his land to repressure the oil-bearing formation. The unit included substantial acreage not owned by the plaintiff.
The Texas Supreme Court held that although lessee-owners of mineral interest had an implied easement to use the surface, including water, to the extent reasonably necessary to develop and provide the minerals, lessees had no right to produce the salt water from owner’s surface estate and drive it through a secondary recovery unit that included acreage outside the leased tract, notwithstanding that the Railroad Commission had entered orders approving recovery units. 501 S.W.2d at 868.
While this holding can be read to be one of Hmitation of salt ' water usage to the leased premises, it would more properly be construed to uphold the right of the surface and mineral owners of the off-lease water to have a cause of action against Crawford than for Hrabe to have the right to restrict usage of off-lease water from coming on his premises. The Robinson opinion suggests that a contrary result to its decision would obtain in Oklahoma under the holding of Holt v. Southwest Antioch Sand Unit, Fifth Enlarged, 292 P.2d 998 (Okla. 1955).
In Gill v. McCollum, 19 Ill. App. 3d 402, 311 N.E.2d 741 (1974), the Illinois Appellate Court found that under the oil and gas lease in question, which permitted injection of fluids for the purpose of recovery of oil and other hydrocarbons, the lessee did not have a right to dispose of salt water from other leases. The lease did not limit the potential source of salt water for injection, but the facts of the case clearly evidenced that the salt water disposal would not increase oil or gas production from the lessor’s wells. In upholding the trial court’s injunction against the lessee, the court noted:
“Since the primary purpose of an oil and gas lease is to obtain production the above provisions must be read with this purpose in mind. The injection must have some relation to the primary purpose of obtaining production. Since in this case there was none, the injunction was properly granted.” (Emphasis added.) 19 Ill. App. 3d at 404.
Applying this logic to our present case (although the Illinois court was not faced with our facts), because Crawford’s salt water injection is related to the primary purpose of obtaining additional oil production, it should be found permissible under the lease.
A contrary result was reached in Farragut v. Massey, 612 So. 2d 325, 328 (Miss. 1992), where the Mississippi Supreme Court reversed the trial court’s finding that off-lease salt water could be injected absent a separate agreement consenting to the disposal. The lessee’s purpose for injecting the salt water was two-fold: (1) it increased the proceeds received by the lessee (the lessee charged a disposal fee), and (2) it extended the useful life of the oil field, thus preventing waste. It is not clear from the opinion whether the salt water injections actually increased production from the lessor’s property or whether they were merely a general benefit to the entire oil field.
The Farragut court first turned to the relevant language of the agreement: “[Lessee may] establish and utilize [salt water disposal facilities] necessary or useful in lessees operations in . . . producing . . . minerals . . . from the land covered hereby or any other land adjacent thereto.” 612 So. 2d at 328. The court noted that this language permits the lessee to dispose of salt water it produces from the lessor’s property as well as other properties the lessee operates, but it does not grant authority to dispose of salt water from third parties. We note this relates to the disposing of salt water and not a successful secondary recovery project. Also, Crawford is the operator of the properties from which the salt water is being utilized in our case.
The Farragut opinion appears to change the language of Gill v. McCollum when it states:
“Guided by this principle, an Illinois Court in Gill v. McCollum. . . . found that the holder of a mineral lease does not have the right to import [the Gill court actually held there was no right to dispose] salt water from adjacent lands absent an express grant of authority. Professor Kuntz recognizes the same rule:
‘The right of the mineral owner to use and occupy the land is restricted to operations for exploring for and extracting minerals from that land. Thus, the land cannot be used ... to dispose of salt water from other land.’ 1 E. Kuntz, A Treatise on the Law of Oil and Gas, § 3.2 at 87-88 (1987). Citing Gill, Kuntz notes that ‘[the] grant of the right to inject liquids and gas does not give the lessee the right to use a well on the leased premises for the disposal of salt water from other leases.’ 4 E. Kuntz, § 50.4(c) (Supp. 1989).” 612 So. 2d at 328.
This decision is in fact a disposal situation and not one where beneficial results are being obtained in a secondary recovery pro ject. We do not believe that either Robinson, Gill, or Farragut support Hrabe’s arguments other than incidentally.
Although somewhat factually different, in Cassinos v. Union Oil Co., 14 Cal. App. 4th 1770, 18 Cal Rptr. 2d 574 (1993), the operator of an oil and gas lease, with permission of the surface owner but lacking permission of the lessor and owner of the mineral interest, injected off-lease salt water into the lease premises. The injections were for the benefit of outside leases, and the injections damaged the productivity of other wells on the leased premises. The trial court granted an injunction against the lessee and awarded damages in the amount of $1.75 per barrel of salt water injected. The lessee/operator appealed the court’s finding that it committed trespass by interfering with the mineral owner’s estate.
The California court first noted the standard for civil trespass in the context of a lessor/lessee relationship: ‘Where one has permission to use land for a particular purpose and proceeds to abuse the privilege, or commits any act hostile to the interests of the lessor, he becomes a trespasser.” 14 Cal. App. 4th at 1780. The appellate court upheld the decision at trial: “[The lessee’s] injection of offsite wastewater ‘to maintain production of oil on leases other than the [lessor’s] lease’ exceeded the scope of consent under the lease.” 14 Cal. App. 4th at 1781. Applying this logic to our present case would again lead to the conclusion that if off-site water is injected for lease related purposes, then it would be permissible and not a trespass.
While Hrabe has not centered his arguments on Crawford’s actions as constituting a trespass which he is entitled to enjoin or for which he is entitled to collect damages, that is in great part the underlying basis for his complaints. As such, we will also consider additional cases which relate to intrusions of salt water in secondary recovery situations.
Even when no contractual rights exist between a property owner and an oil and gas lease operator, courts have been reluctant to apply the general rules of trespass to subsurface intrusions of migrating salt water. In West Edmond Salt Water Disposal Ass’n v. Rosecrans, 204 Okla. 9, 18, 226 P.2d 965 (1950), the Oklahoma Supreme Court refused to uphold an ejectment action and dam ages in favor of a property owner who complained of a subsurface intrusion of salt water from a nearby injection well where no actual damages had been shown. But, in West Edmond Hunton Lime Unit v. Lillard, 265 P.2d 730, 732 (Okla. 1954), the court permitted a property owner to recover actual damages for harm caused to him from subsurface salt water injected by an adjacent oil and gas lease operator. In Mowrer v. Ashland Oil & Refining Co., Inc, 518 F.2d 659, 662 (7th Cir. 1975), the court upheld the award of actual damages caused to plaintiff s property by a neighboring water flood project under a theory of private nuisance (the court noted the award could have been upheld on alternate theories). In California Co. v. Britt, 247 Miss. 718, 154 So. 2d 144 (1963), the court reversed a trial court’s finding of trespass and damages for the displacement of oil from the plaintiff s property due to defendant’s injections from another location under an approved unitization plan. The Britt court noted that it was one of the rare instances where the rule of capture applied. 247 Miss, at 727.
In Railroad Commission of Texas v. Manziel, 361 S.W.2d 560, 568 (Tex. 1962), a case we will discuss in more detail later in this opinion, the migration of injected salt water across plaintiff s property line was not considered an enjoinable trespass even where oil was displaced from the plaintiff s property, so long as the injection was part of an approved secondary recovery operation. In Baumgartner v. Gulf Oil Corp., 184 Neb. 384, 394, 168 N.W.2d 510 (1969), citing to the logic of Manziel, the Nebraska Supreme Court held where the plaintiff whose oil had been displaced by injected salt water from neighboring properties refused to participate in a unitization program to his own detriment, the plaintiff was not entitled to damages for trespass in the amount of the displaced oil.
In Tidewater v. Jackson, 320 F.2d 157 (10th Cir. 1963), a Kansas case, the defendant sought and gained approval from the KCC for secondary recovery by use of a water flood program. While operating under the conditions of the approved plan, the defendant caused damage to the plaintiff s neighboring wells. Plaintiff s wells were still producing oil from primary pressure until defendant’s water flood operations caused the wells to be overtaken by salt water. The court found no shield for tort liability offered by the KCC’s order and upheld the trial court’s award of damages for lost profits. 320 F.2d at 163-64.
In 1 Williams and Meyers, Oil and Gas Law § 204.5 (1997), the authors note during a discussion of liability for the migration of salt water in secondary recovery operations: “The liability vel non of the injector to the adjoining landowner does not appear to turn upon the view held in the state as to the nature of the landowner’s interest in oil and gas.” While the cases reviewed generally involved the potential damages resulting from displacement of oil and gas by the waste water injections, which has not been proven in our present case, the authors discovered no cases where an injunction was permitted to stand to prevent further trespass where no damages had been shown. The authors concluded after a thorough review of the relevant case law: “It is hazardous, therefore, to engage in a secondary recovery program in the absence of unitization (voluntaiy or compulsory) of all premises which may he adversely affected by injection of fluids.” (Emphasis added.) 1 Williams and Meyers § 204.5. Thus, the authors conclude that only in situations where adverse effects may occur to properties invaded by injected salt water, unlike our present facts, should a lessee be concerned with violating the rights of the estates affected by secondary recovery operations.
The case of Manziel, 361 S.W.2d 560, is an important holding relating to Hrabe’s claims in this case. It involved competitive water flooding between two operators where one had received an exemption for the location of an injection well from the Texas Railroad Commission which was claimed to severely disadvantage the other. The well location was upheld. But, the decision is significant for the discussion of trespass in secondary recovery projects.
The Manziel opinion quotes from Williams and Meyers, Oil & Gas Law § 204.5 n.l, which in considering the legal consequence of secondary recovery injections in the subsurface states:
“ “What may be called a “negative rule of capture” appears to be developing. Just as under the rule of capture a land owner may capture such oil or gas as will migrate from adjoining premises to a well bottomed on his own land, so also may he inject into a formation substances which may migrate through the structure to the land of others, even if it thus results in the displacement under such land of more valuable substances (e.g., the displacement of wet gas by dry gas).’ ”
In broadly discussing trespass in relation to secondary recovery, the court continued:
“Secondary recovery operations are carried on to increase the ultimate recovery of oil and gas, and it is established that pressure maintenance projects will result in more recovery than was obtained by primary methods. It cannot be disputed that such operations should be encouraged, for as the pressure behind the primary production dissipates, the greater is the public necessity for applying secondary recovery forces. It is obvious that secondary recovery programs could not and would not be conducted if any adjoining operator could stop the project on the ground of subsurface trespass. As is pointed out by amicus curiae, if the Manziels’ theory of subsurface trespass be accepted, the injection of salt water in the East Texas field has caused subsurface trespasses of the greatest magnitude.
“The orthodox rules of and principles applied by the courts as regards surface invasions of land may not be appropriately applied to subsurface invasions as arise out of the secondary recovery of natural resources. If the intrusions of salt water are to be regarded as trespassory in character, then under common notions of surface invasions, the justifying public policy considerations behind secondary recovery operations could not be reached in considering the validity and reasonableness of such operations. See Keeton and Jones: ‘Tort Liability and the Oil and Gas Industry II,’ 39 Tex. Law Rev. 253 at p. 268. Certainly, it is relevant to consider and weigh the interests of society and the oil and gas industry as a whole against the interests of the individual operator who is damaged; and if the authorized activities in an adjoining secondary recovery unit are found to be based on some substantial, justifying occasion, then this court should sustain their validity.
“We conclude that if, in the valid exercise of its authority to prevent waste, protect correlative rights, or in the exercise of the powers within its jurisdiction, the Commission authorizes secondary recovery projects, a trespass does not occur when the injected, secondary recovery forces move across lease lines, and the operations are not subject to an injunction on that basis. The technical rules of trespass have no place in the consideration of the validity of the orders of the Commission.” 361 S.W.2d at 568-69.
This decision, while thought to justify relaxing the rule of trespass in water flooding operations, when critically read, does not fully support Crawford’s argument that an operator has the right to use the most economical water available even if objected to by the lessors.
This is not the last chapter in trespass discussions by the Texas Supreme Court. In Geo Viking, Inc. v. Tex-Lee Operating Co., 817 S.W.2d 357 (Tex. Civ. App. 1991), the issue of trespass appeared in a case raising the rules of capture and trespass as they applied to hydraulic fracturing. Further analysis on our part is not helpful, but we point to the excellent article by Professor Jacqueline Lang Weaver entitled The Politics of Oil and Gas Jurisprudence: The Eighty-Six Percent Factor, 33 Washburn L.J. 492, 510-14, 523-25 (1994), where Manziel is criticized and Geo Viking is discussed.
In a case somewhat like Robbins Petroleum Corporation, Inc., which we discussed earlier, the Oklahoma Supreme Court was asked to consider whether an actionable trespass had occurred where an operator took salt water from the plaintiffs property in order to-increase production of a unit, of which plaintiff was a part and would directly benefit by increased unit royalties. Holt v. Southwest Antioch Sand Unit, Fifth Enlarged, 292 P.2d 998 (Okla. 1955). In Holt, the plaintiff sued for the profits created by the injection of salt water in surrounding leases. Part of the salt water had been produced from a former oil well on plaintiffs premises that had been converted without plaintiff s express permission. The plaintiff claimed that as the surface rights owner, she also retained title to the salt water and any unauthorized removal constituted a trespass. Without resolving the question of whether fresh water rights are applicable to salt water, the court found that the water was used to increase the production of oil and gas of the entire unit which by law constituted a single lease operation. The court upheld the dismissal of the plaintiff s action and opined that the operator had broad implied rights to accomplish the goal of oil and gas production:
“Whether the conveyance or reservation of the minerals provides therefor or not ‘an owner of minerals may °°0 use such amount of water from the land as is reasonably necessary to develop the mineral rights.’ 58 C.J.S., Mines and Minerals, § 159, p. 334.
“In die case of Stradley v. Magnolia Pet. Co., Tex. Civ. App., 155 S.W.2d 649, 652, the Texas Court said:
‘The general rule seems to be that a person who owns the minerals in certain land has as incidental to his ownership the rights and privileges that are necessary for the profitable production of such minerals, and in determining his rights the courts take into consideration the circumstances, the right conveyed, the purpose for which it was conveyed and the information of the grantor and grantee in order to ascertain the intention of the parties.’ ” 292 P.2d at 1000.
Extending the reasoning of Holt, it can be argued that if a surface owner does not have an action in trespass for the removal of salt water so long as it is done for the purpose of increasing the lessor s production, then neither would a cause of action for trespass lie where off-lease salt water is injected for the purpose of increasing production. As the Holt court noted, “ "a person who owns the minerals in certain land has as incidental to his ownership the rights and privileges that are necessary for the profitable production of such minerals.’ ” 292 P.2d at 1000.
While our discussion of trespass cases is helpful, it is not conclusive. We turn to consideration of the economics and practical usage of salt water or other water in a secondary recovery operation.
The record reflects that the injection of salt water was necessary in the case before us in order to sustain production, as the lease was near its economic limit of primary production. The KCC order, while not binding on the issues we face, found that waste would be prevented and additional recovery obtained by the secondary recovery project. The question then remains one of the source of the water to be used and the lessor’s control or lack thereof over its source.
Hrabe is correct that the use of off-lease salt water is not required in order to complete the secondary recovery operation. A well or wells could be drilled into the Dakota aquifer on his property, and that water could be used in the secondary recovery operation. There is no evidence in the record as to the cost of drilling such a supply well, but it would obviously increase operating costs. Clearly, the most economically sound and prudent source of water is that which has already been produced from the same Kansas City formation on outside leases. Also, as stipulated by the parties, a geologist would testily that Kansas City formation water would be the best to use for production of oil. To establish a rule which prevents importation of water for secondary recovery, yet requires additional wells to be drilled on the lessor’s premises to produce water for the same purpose, would appear to undermine conservation, promote waste, and foster uneconomic actions.
The Ninth Annual Institute on Oil and Gas Law and Taxation published an article stating:
“A source of water is the most important single item in any waterflood project. The right to use water for lease operations is a right which is sometimes granted expressly in the ordinary oil and gas lease and implied when not granted in a conveyance or reservation .... As the use of water flooding becomes more widespread and the water supply of the country becomes more and more limited, as apparently it will, the problem will become even more important.” (Emphasis added.) Hughes, Operational Problems Arising Out of Secondary Recovery, Ninth Annual Institute on Oil and Gas Law and Taxation 128 (1958).
Accord McElroy, Water Flooding of Oil Reservoirs, 7 Baylor L. Rev. 18, 27 (1955) (“Water is the most important single item in a water flood project.”).
A finding that the use of off-lease water in the present case is not an enjoinable trespass is conceptually supported by the cases we have previously cited and the authors’ comments concerning reasonable use of our water supply. Because the water supply in this country will become more and more limited, it should not be uselessly disposed of but rather should be used for the beneficial purposes of increasing oil production whenever possible.
We, like the trial court, do not believe that our decision should be reached on the language, or lack thereof, in the oil and gas lease involved in this case.
Hrabe’s reliance on Professor Pierce’s statement in the Kansas Oil and Gas Handbook § 12.05 (1991), that “the right to dispose of substances through injection wells and the right to conduct enhanced recovery operations, should also be addressed in agreements separate from the oil and gas lease” does not help us in deciding this appeal. It certainly would be to the parties’ benefit if they had been able to resolve this matter by a separate agreement, but, the fact of the matter is, they could not do so. Nothing in the Handbook suggests secondary recovery cannot be an implied right in an oil and gas lease or that the most economical usage of salt water produced should not be encouraged.
We have previously cited Professor Weaver’s article, The Politics of Oil and Gas Jurisprudence: The Eighty-Six Percent Factor, in 33 Washburn L.J. 492 (1994), as it relates to Texas cases involving trespass but the article also pointed out that had the Texas court adhered to the traditional rules of trespass it would have encouraged positive legislative action. The author argues that compulsory unitization of a production area is the best route in achieving conservation and economic results and a strict application of trespass jurisprudence would force unit operations.
Adoption of this view would run counter to our consistent reluctance to take judicial action to attempt to force a legislative response. In fact, the 1967 Kansas Legislature (in L. 1967, ch. 299, secs. 1-15) did enact provisions relating to unitization which are set forth in K.S.A. 55-1301 et seq. There is little doubt that if Crawford had obtained a KCC unitization order, Hrabe would appear to have no grounds to dispute the use of off-lease salt water on his property. He concedes such in his brief.
In the final analysis our decision must, as the trial court’s was, be driven by the facts of this particular case. The secondary recovery operations have increased production. This increase is economically beneficial to all parties. Off-lease salt water is economically available. To drill a supply well on the Hrabe property would increase expenses of lease operations. The water from the Kansas City formation is more beneficial than water from the Dakota formation. This is a true injection of salt water necessary to increase production and not the disposal of water being attempted under the injection banner.
Limited to the facts of this case as all decisions must be, we hold the trial court reached the correct result.
The stipulation of the parties provided: “In the event the Court determines that secondary recovery operations of Plaintiff are lawful and authorized, damages shall be the actual and reasonable cost of pipeline repair.” Because of the result we reach, this matter must be remanded to the trial court to make the necessary determination of damages to be awarded to Crawford.
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|
Per Curiam:
This is an original uncontested proceeding in discipline filed by the Disciplinary Administrator s office against the respondent, George W. Swisher, of Oskaloosa, an attorney admitted to the practice of law in Kansas, alleging violations of the Kansas Rules of Professional Conduct (KRPC) 1.1 (2001 Kan. Ct. R. An-not. 312) (competence); 1.3 (2001 Kan. Ct. R. Annot 323) (diligence); 1.4 (2001 Kan. Ct. R. Annot. 334) (communication); 1.16(d) (2001 Kan. Ct. R. Annot. 387) (declining or terminating representation); 3.2 (2001 Kan. Ct. R. Annot. 398) (expediting litigation); and 8.4(a), (c), (d), and (g) (2001 Kan. Ct. R. Annot. 437) (misconduct). We impose a 2-year suspension from the practice of law, at the end of which, Swisher must undergo a reinstatement hearing and establish that he has received appropriate professional help to enable him to prevent further misconduct, establish his ability to obtain legal malpractice insurance, and evidence a commitment to the orderly practice of law.
A hearing before the panel of the Kansas Board for Discipline of Attorneys was held on August 29, 2001. Respondent stipulated to the facts and to the violations of the KRPC as set forth in the complaint. Respondent and the Deputy Disciplinary Administrator stipulated to the admission of exhibits. The panel heard the testimony of Michael Chandler, Sheila Jones, Patrick Nichols, Laurie Martinez, and the respondent.
After hearing the testimony presented and the arguments of the parties, and after reviewing the exhibits admitted into evidence, the panel made the following findings of fact:
“DA 7962: Chandler Case
“2. In July, 1998, Michael Chandler retained the Respondent to recover property that he owned, but that was in the possession of his half-sister. At that time, Mr. Chandler paid the Respondent a retainer of $150.00. The Respondent assured Mr. Chandler that he would file suit in the District Court of Jefferson County, Kansas, in his behalf.
“3. In October, 1998, Mr. Chandler again called the Respondent to get an update on the repossession case. At that time, the Respondent told Mr. Chandler he forgot to file the petition.
“4. In December 1998, Mr. Chandler again called the Respondent to learn the status of the case. At that time, the Respondent told Mr. Chandler he filed the ‘wrong’ papers in court and that he needed to re-file the case.
“5. In February, 1999, Mr. Chandler called the Respondent to find out the status of the case. The Respondent told Mr. Chandler that the court docket was overloaded and that he should call back in six weeks.
“6. Mr. Chandler next contacted the Respondent in March, 1999. At that time, the Respondent told Mr. Chandler that the judge was on vacation for a month and that the Respondent would call Mr. Chandler when the judge returned from vacation.
“7. When Mr. Chandler did not hear from the Respondent, in May, 1999, Mr. Chandler again called the Respondent. The Respondent informed Mr. Chandler that the judge ruled in Mr. Chandler’s favor and that the sheriff was in possession of a garnishment order to serve on Mr. Chandler’s half-sister.
“8. Later, Mr. Chandler called to find out the status of the collection effort. At that time, the Respondent told Mr. Chandler that his half-sister hired an attorney, that the garnishment order was ‘annulled,’ and that the case was scheduled for trial.
“9. On the date the Respondent said that [the] matter was scheduled for trial, Mr. Chandler traveled from his residence in Kansas City, to Oskaloosa for trial. Mr. Chandler did not see his half-sister in the courthouse. The Respondent asked Mr. Chandler to wait in the hallway while he visited with the judge. When the Respondent returned, the Respondent told Mr. Chandler that the judge issued a new garnishment order and that he should have his money in approximately thirty days.
“10. After approximately six weeks passed, Mr. Chandler called the Respondent and was informed that his half-sister’s attorney had the garnishment order ‘blocked’ and that a new hearing was scheduled.
“11. Mr. Chandler repeatedly tried to contact the Respondent by telephone. When Mr. Chandler was unable to contact him, Mr. Chandler drove to the Respondent’s office in Oskaloosa. When he arrived at the Respondent’s office, he observed a sign in the door that said that the Respondent was no longer in private practice. Mr. Chandler then went to the Jefferson County Courthouse to find out the status of his case. Someone in the clerk’s office informed Mr. Chandler that no petition had been filed, no hearings had been set, and that no garnishment orders had been issued.
“12. Mr. Chandler confronted the Respondent with the information from the clerk’s office. The Respondent assured Mr. Chandler that the case had been filed and told Mr. Chandler that the person in the clerk’s office was wrong.
“13. The Respondent never filed suit in behalf of Mr. Chandler. The Respondent repeatedly provided Mr. Chandler with false information regarding the representation.
“14. On August 27, 2001, Mr. Chandler received a letter of apology from the Respondent, along with a refund of the $150.00 paid to the Respondent initially.
“DA 7963: Jones Complaint
“15. In 1992, Sheila M. Jones was working at the Peyton Liquor Store. One of her job duties included lifting heavy boxes high in the air. Ms. Jones suffered a work-related injury and began receiving medical attention for the injury.
“16. Thereafter, in early 1993, Ms. Jones engaged the Respondent to represent her in filing a worker’s compensation claim. The Respondent prepared a contingency fee contract regarding his representation of Ms. Jones in the worker’s compensation matter. However, the contract was never executed.
“17. In May, 1996, Ms. Jones lived in an apartment that she rented from Dr. Paul Rebek, a Topeka dentist. At that time, Ms. Jones’ neighbor experienced a clogged pipe. The maintenance man from the management company was able to unclog the neighbor’s clogged pipe, but in doing so, caused sewage to backup into Ms. Jones’ apartment. Apparently, the sewage came out of the kitchen sink, onto the floor and carpet. The management company examined the damage, accepted responsibility, decided that the carpet needed to be replaced, and agreed to reimburse Dr. Rebek for the expenses of having the carpet replaced. While the carpet was cleaned, it was never replaced.
“18. Thereafter, Ms. Jones became ill. She underwent many examinations. It was not until September, 1997, that Ms. Jones discovered that the sewage caused mold and mildew to grow in the carpet, and that the mold and mildew in the carpet was making her ill. As soon as Ms. Jones realized that it was the carpet that was making her ill, she moved from the apartment.
“19. In June, 1996, and again in January, 1997, an attorney representing the employer and insurance carrier in the worker’s compensation case, offered to settle the matter for $10,000.00. However, Ms. Jones had incurred more than $10,000 in medical expenses and, therefore, directed the Respondent to reject the settlement offer.
“20. In August, 1997, the Respondent rejected a second offer to settle the case, this time for $12,000.00. In his letter rejecting the offer, the Respondent wrote, T am not sure what my role will be from this point forward. I will contact you if there is any change in that situation.’
“21. In August, 1997, Ms. Jones contacted the Respondent and asked him to file suit in her behalf against Dr. Rebek for the physical injury she suffered when Dr. Rebek failed to replace the carpet after the sewage backup. The Respondent agreed to represent Ms. Jones, again on a contingent fee arrangement. And, again, the Respondent and Ms. Jones did not execute a written fee agreement.
“22. For a period of time, Ms. Jones made repeated attempts to contact the Respondent by telephone. However, the Respondent failed to return her phone calls.
“23. On February 4, 1999, Ms. Jones signed the verified petition to initiate the lawsuit against Dr. Rebek. However, the Respondent failed to file the petition until May 25, 1999. According to the petition, Ms. Jones was seeking in excess of $15,000.
“24. After he filed the petition, the Respondent informed Ms. Jones that he had obtained a judgment in the amount of $75,000 against Dr. Rebek. The Respondent also told Ms. Jones that a garnishment proceeding had'been intiated to collect the judgment.
“25. However, tire Respondent had not obtained a judgment in behalf of Ms. Jones. The Respondent never obtained service of process on Dr. Rebek.
“26. Then, on November 5, 1999, the Honorable Marla J. Lukert [sic] wrote to the Respondent informing him that Jones v. Rebeck (sic) would be dismissed for failure to obtain service and failure to prosecute unless the Respondent provided an explanation within fifteen days. The Respondent failed to notify Ms. Jones of the judge’s letter, and the Respondent failed to respond to the judge’s letter. On December 8, 1999, Judge Lukert [sic] dismissed Jones v. Rebeck (sic) for failure to obtain service of process and failure to prosecute.
“27. The Respondent failed to notify Ms. Jones that the lawsuit had been dismissed. Additionally, die Respondent failed to inform Ms. Jones of the statutory provisions regarding refiling cases that had been dismissed for failure to prosecute.
“28. Ms. Jones continued to try to contact die Respondent. Ms. Jones’ attempts to contact the Respondent were unsuccessful. On one occasion, Ms. Jones reached a telephone recording which stated that the Respondent was no longer practicing law. After learning that the Respondent was no longer practicing law, Ms. Jones sought new counsel.
“29. In early 2000, Ms. Jones retained Patrick Nichols to represent her in the worker’s compensation case as well as the personal injury case.
“30. On April 4, 2000, the Respondent wrote to Ms. Jones providing her with a copy of die petition in Jones v. Rebeck (sic). In his letter, the Respondent stated, ‘You should refile as soon as possible to preserve your rights. It still appeal's that your only hope of prevailing will be to get this considered as a contract issue.’ The Respondent failed to inform Ms. Jones that she would not be able to recover for her personal injuries under a contract theory.
“31. Mr. Nichols notified the Respondent by letter that Mr. Nichols had been hired to represent Ms. Jones. Mr. Nichols asked the Respondent to withdraw from the worker’s compensation case. The Respondent failed to respond to Mr. Nichols’ letter and failed to withdraw from the case.
“32. Mr. Nichols testified that Ms. Jones’ recovery in the worker’s compensation case will be limited because evidence of causation has been lost due to the passage of time. Mr. Nichols testified that he has had difficulty in getting the physicians to acknowledge that the injury was work-related because the injury was so long ago. In addition, Mr. Nichols testified that Ms. Jones will not recover in the personal injury case, even though liability was fairly clear, because the statute of limitations expired before the Respondent filed the petition. Mr. Nichols suggested that Ms. Jones may have been able to recover between $50,000 to $100,000 in the personal injury case, had the Respondent properly filed the case. Prior to the misconduct in these cases, the Respondent allowed his professional liability insurance to lapse.
“DA 8035: Wilson Complaint
“33. In 1996, Laurie Wilson retained the Respondent to obtain a divorce. Ms. Wilson, and her then-husband, Kevin Wilson, agreed to the division of the personal and real property of the marriage. The Respondent prepared and filed a petition for divorce. In the petition, without providing a description of the real property, the Respondent made a general reference to real property owned by the parties. According to the petition, the real property was to be ‘divided.’ It was Ms. Wilson’s understanding that Mr. Wilson was to remain in the residence. Additionally, it was Ms. Wilson’s understanding that, at the time Mr. Wilson sold the property, she was to receive one-half of the proceeds of the sale.
“34. On May 22,1996, a hearing on the petition for divorce was held. At that time, the Respondent appeared in behalf of Ms. Wilson. Because Mr. Wilson was not represented, the Respondent prepared an entry of appearance and waiver of service for Mr. Wilson. Following the hearing, the Respondent prepared the journal entry of divorce. The journal entry of divorce did not include a disposition of the real property.
“35. Later, Mr. Wilson attempted to sell the property. However, because there had been no disposition of the property included in the journal entry of divorce, it was unclear who was to receive the proceeds from the sale. As a result, the property was not sold.
“36. Ms. Wilson contacted the Respondent to correct the problem. However, Ms. Wilson was unable to contact the Respondent. Eventually, Ms. Wilson and Mr. Wilson each obtained new counsel. The matter was settled by passing the property to the children of Mr. Wilson and Ms. Wilson. Unfortunately, the real estate taxes went unpaid for a couple of years and, at the time the children received the property, they were unable to pay the outstanding taxes.”
The panel made the following conclusions of law:
“1. It is appropriate to consider violations not included in the Formal Complaint under certain circumstances. The law in this regard was thoroughly examined in State v. Caenen, 235 Kan. 451, 681 P.2d 639 (1984), as follows:
‘Supreme Court Rule 211(b) (232 Kan. clxvi), requires the formal complaint in a disciplinary proceeding to be sufficiently clear and specific to inform the respondent of the alleged misconduct.
‘The seminal decision regarding the applicability of the due process clause to lawyer disciplinary proceedings is found in In re Ruffalo, 390 U.S. 544, 88 S. Ct. 1222, 20 L. Ed. 2d 117, reh. denied 391 U.S. 961, 88 S. Ct. 1833, 20 L. Ed. 2d 874 (1968). There the United States Supreme Court held that a lawyer charged with misconduct in lawyer disciplinary proceedings is entitled to procedural due process, and that due process includes fair notice of the charges sufficient to inform and provide a meaningful opportunity for explanation and defense.
‘Decisions subsequent to Ruffalo have refined the concept of due process as it applies to lawyer disciplinary hearings, and suggest that the notice to be provided be more in the nature of that provided in civil cases. The weight of authority appears to be that, unlike due process provided in criminal actions, there are no stringent or technical requirements in setting forth allegations or descriptions of alleged offenses. . . . Due process requires only that the charges must be sufficiently clear and specific to inform the attorney of the misconduct charged, but the State is not required to plead specific rules, since it is the factual allegations against which the attorney must defend. . . . However, if specific rules are pled, the state is thereafter limited to such specific offenses. . . .
‘Subsequent to the Ruffalo decision, the due process requirements in lawyer disciplinary proceedings have been given exhaustive treatment by this court. In State v. Turner, 217 Kan. 574, 538 P.2d 966 (1975), 87 A.L.R.3d 337, the court summarized prior Kansas and federal precedent on the question, including Ruffalo, and held in accordance with established precedent that the State need not set forth in its complaint the specific disciplinary rules allegedly violated . . ., nor is it required to plead specific allegations of misconduct .... What is required was simply stated therein:
“ We must conclude that where the facts in connection with the charge are clearly set out in the complaint a respondent is put on notice as to what ethical violations may arise therefrom. . . .”
“ ‘It is not incumbent on the board to notify the respondent of charges of specific acts of misconduct as long as proper notice is given of the basic factual situation out of which the charges might result.’ ”
235 Kan. at 458-59 (citations omitted). Thus, only when the Formal Complaint alleges facts that would support findings of violations of the amendments, will considering additional violations be allowed. In this case, the Formal Complaint contains sufficient facts to support a finding that the Respondent violated KRPC 1.1 in his representation of Ms. Jones. Thus, in the opinion of the Hearing Panel, it is appropriate to consider whether the Respondent violated KRPC 1.1 in his representation of Ms. Jones.
“2. Lawyers must provide competent representation to their clients. KRPC 1.1. ‘Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.’ Id. The Respondent failed to competently represent Ms. Jones when he failed to file the personal injury case within the statute of limitations. Additionally, the Respondent violated KRPC 1.1, in regard to Ms. Martinez, when he failed to include the disposition of the real estate in the divorce decree.
“3. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. The Respondent failed to file suit in behalf of Mr. Chandler as promised. Because he failed to take the action that he agreed to take, Mr. Chandler is no closer to recovering his property than he was when he retained the Respondent. After the Respondent filed the personal injury case in behalf of Ms. Jones, the Respondent failed to obtain service of process on Dr. Rebek. Because of the Respondent’s lack of diligence, Ms. Jones lost her cause of action against Dr. Rebek. In the worker’s compensation case, the Respondent’s lack of diligence resulted in a significant delay in the prosecution of the matter. Because the Respondent failed to act with reasonable diligence and promptness in representing Mr. Chandler and Ms. Jones, the Hearing Panel concludes that the Respondent violated KRPC 1.3.
“4. KRPC 1.4(a) provides:
‘A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.’
Id. In the Chandler matter, the Respondent failed to remain in contact with Mr. Chandler. Additionally, when the Respondent did communicate with Mr. Chandler, he provided false and misleading information. The Respondent also failed to adequately communicate with Ms. Jones. The Respondent’s failure in this regarding caused significant delays in the worker’s compensation case and the personal injury case. The Hearing Panel concludes that the Respondent failed to provide adequate communication with Mr. Chandler and Ms. Jones, in violation of KRPC 1.4(a).
“5. KRPC 1.16(d) provides:
‘Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.’
Id. Apparently the Respondent terminated his representation of Ms. Jones, without notification. However, at the time the Respondent ceased his representation of Ms. Jones, the Respondent failed to ‘take steps to the extent reasonably practicable to protect’ Ms. Jones. The Hearing Panel concludes that, accordingly, the Respondent violated KRPC 1.16(d).
“6. An attorney violates KRPC 3.2 if he fails to make reasonable efforts to expedite litigation consistent with the interests of his client. Id. In this case, the Respondent faded to expedite the worker’s compensation case and the personal injury case in behalf of Ms. Jones. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 3.2.
“7. KRPC 8.4 provides, in pertinent part, as follows:
‘It is professional misconduct for a lawyer to:
(a) Violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(g) engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law.’
Id. The Respondent violated KRPC 8.4(a), KRPC 8.4(c), KRPC 8.4(d), and KRPC 8.4(g), as detailed below:
“a. The Respondent violated KRPC 8.4(a) by violating KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.16, KRPC 3.2, KRPC 8.4(c), KRPC 8.4(d), and KRPC 8.4(g).
“b. The Respondent repeatedly provided false and misleading information to Mr. Chandler and Ms. Jones. The Respondent informed Mr. Chandler that he had obtained a favorable judgment when he had not filed the case. The Respondent told Ms. Jones that he was able to setde her personal injury case against Dr. Rebele for $75,000.00, when he had failed to achieve service of process on Dr. Rebek. Accordingly, the Hearing Panel concludes that by repeatedly providing false information to Mr. Chandler and Ms. Jones, the Respondent ‘engage[d] in conduct involving dishonesty, fraud, deceit or misrepresentation,’ in violation of KRPC 8.4(c).
“c. The Respondent engaged in conduct that was ‘prejudicial to the administration of justice,’ when he failed to file Mr. Chandler’s case, when he failed to obtain service in Ms. Jones’ personal injury, case and when he failed to prosecute Ms. Jones’ worker’s compensation case. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 8.4(d).
“d. Repeatedly providing false information to clients regarding the representation, adversely reflects on the Respondent’s ability to practice law. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(g).”
The panel made the following recommendation as to discipline:
“In making this recommendation for discipline, tíre Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duty to his clients to provide honest, diligent, and competent representation, his duty to the legal system to expedite litigation, and his duty to the legal profession to maintain personal integrity and honesty.
"Mental State. The Respondent knowingly violated his duties.
“Injury. Mr. Chandler, Ms. Jones, and Ms. Martinez suffered actual injury as a result of the Respondent’s misconduct.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“Prior Disciplinary Offenses. On January 9, 2001, the Respondent was informally admonished for violating KRPC 1.4(a).
“Pattern of Misconduct. The Respondent engaged in a pattern of misconduct when he repeatedly provided false information regarding the status of the representations and when he repeatedly failed to provide competent and diligent representation.
“Multiple Offenses. By violating KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.16, KRPC 3.2, KRPC 8.4(a), KRPC 8.4(c), KRPC 8.4(d), and KRPC 8.4(g), the Respondent engaged in multiple offenses.
“Vulnerability of Victim. Mr. Chandler, Ms. Jones, and Ms. Martinez were vulnerable victims. Each of the complainants relied upon the Respondent to be honest and to provide diligent representation. Because the Respondent provided Mr. Chandler and Ms. Jones with false information regarding the status of their cases, the Respondent exacerbated their vulnerability.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“Present and Past Attitude of Cooperation. During the hearing on this matter, the Respondent fully admitted his misconduct.
“Inexperience in the Practice of Law. The Respondent was admitted to the practice of law in Oklahoma in 1988, and in Kansas in 1991. During his career, the Respondent worked for the State of Kansas, Department of Social and Rehabilitation Services in child support enforcement for a number of years. The Respondent was inexperienced in the private practice of law.
“The Hearing Panel received four letters from friends and clients written in support of the Respondent. The Hearing Panel has reviewed the letters and concludes that the letters fail to establish ‘good character and reputation in the community.’
“The Respondent also forwarded letters of apology to each of the complainants, and a refund of $150.00 to Mr. Chandler, during the week preceding the hearing. Standard 9.4 and its commentary addresses this type of restitution and expression of remorse:
‘9.4 Factors Which Are Neither Aggravating nor Mitigating
‘The following factors should not be considered as either aggravating or mitigating:
(a)forced or compelled restitution;
‘Commentary
“While courts have considered each of these factors, the purposes of lawyer discipline are best served by viewing them as irrelevant to the imposition of a sanction. Lawyers who make restitution voluntarily and on their own initiative demonstrate both a recognition of their ethical violation and their responsibility to the injured client or other party. Such conduct should be considered as mitigation (see Standard 8.32), even if the restitution is made in response to a complaint filed with the disciplinary agency. Lawyers who make restitution only after a disciplinary proceeding has been instituted against them, however, cannot be regarded as acting out of a sense of responsibility for their misconduct, hut, instead, as attempting to circumvent the operation of the disciplinary system. Such conduct should not be considered in mitigation.’
Id. (emphasis added; citations omitted).
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered Standard 4.42. That standard provides as follows:
‘Suspension is generally appropriate when:
(a) a lawyer abandons the practice and causes serious or potentially serious injury to a client; or
(b) a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to a client; or
(c) a lawyer engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to a client.’
Id.
“After careful consideration of the findings of fact, conclusions of law, and standards, the Hearing Panel unanimously recommends that Respondent be suspended from the practice of law in the state of Kansas for a period of one year. The Hearing Panel further recommends that the Respondent be required to undergo a reinstatement hearing. See Kan. Sup. Ct. R. 219. At the reinstatement hearing, the Respondent should be required to establish that he has received the appropriate professional help to enable him to prevent a repeat of the misconduct present in this case, and to evidence a commitment to the orderly practice of law.”
Swisher indicated that he did not wish to file any exceptions to the hearing panel report. We find the panel’s findings of fact are supported by clear and convincing evidence. However, we disagree with the recommendations of the panel regarding sanctions. This court is not bound by the panel’s recommendations, which are only advisory, and may impose sanctions greater or lesser than those recommended. Pursuant to Rule 212(f) (2001 Kan. Ct. R. Annot. 263), this court has a duty to examine all the evidence in disciplinary proceedings and determine the judgment to be entered. In re Bailey, 268 Kan. 63, 64, 986 P.2d 1077 (1999).
It Is Therefore Ordered that the respondent, George W. Swisher, be and he is hereby disciplined by a 2-year suspension from the practice of law in accordance with Supreme Court Rule 203(a)(2) (2001 Kan. Ct. R. Annot. 224) for his violations of the KRPC. Swisher shall be required to undergo a reinstatement hearing pursuant to Supreme Court Rule 219 (2001 Kan. Ct. R. Annot. 285), at which he will be required to establish that he has received appropriate professional help to enable him to prevent further misconduct, establish his ability to obtain legal malpractice insurance, and evidence a commitment to the orderly practice of law.
It Is Further Ordered that this order be published in the official Kansas Reports and that the costs of this action be assessed to the respondent.
Davis, J., not participating.
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|
The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by the defendant, Deanna C. Wiggett, from her convictions for attempted kidnapping, battery, and aggravated burglary. She was sentenced to a controlling term of 68 months. The charges against Wiggett arose after she approached a young mother in a store parking lot in Wichita, Kansas, sprayed her twice with pepper spray, knocked her to the ground, and attempted to take her infant daughter from a car seat in the rear seat of the mother s car.
Following the suggestion of her own mother, Wiggett went to the Toys-R-Us store in Wichita on June 27, 2000, to pick up a baby book to have ready for the expected birth of Wiggett’s daughter. Wiggett approached Kristen Downing, a first-grade teacher, and Downing’s two children in the Toys-R-Us parking lot. Downing had observed Wiggett in the parking lot before she entered the store and testified that Wiggett appeared to be pregnant. After shopping for 20 or 30 minutes, Downing and her children left the store to return to their car. Downing had carried her daughter T.D., who was almost 6 weeks old, in an infant carrier. After Downing returned to her car, she opened the rear passenger door and her 4-year-old son Z.D. jumped in first. Then Downing began to latch T.D.’s baby carrier into the car seat.
Downing testified:
“About that time I felt someone tap me on my shoulder, and I started to turn around, and I heard her say, Ma’am, someone hit your car while you were — I think she was starting to say while I was in the store or something, and then I— I turned around to face her, and at that point she sprayed me in the face and then pushed me towards the back of tire car where I — I landed on all fours. And I remember looking back up over my shoulder and seeing someone tug at the car seat, trying to pull the car seat out, and then I remember hearing my son screaming, and — and I thought . . . someone’s trying to carjack my car, and my kids are in it.”
Downing ran at Wiggett and struggled to lodge herself between Wiggett and the children, yelling, “No.” Wiggett sprayed her again with pepper spray, and Downing said she “started yelling for someone to help me because she was trying to take my baby.” At that point, Wiggett ran to a green vehicle and left in it.
Officer Shek Weber told jurors that he and his wife, Debra, had known Wiggett for 2 years and that Wiggett was a bridesmaid in their May 1999 wedding. Debra and Wiggett were good friends with Kristi Hulse. Debra, Hulse, and Wiggett’s sister-in-law all had babies in 1999. According to Officer Weber, all the girls were pregnant at about the same time, except for Wiggett.
Jason Dunn, Debra’s brother from New Jersey, came to Wichita for Debra’s wedding on May 15 and returned to Wichita again on June 28,1999, to help his family because their home was damaged by a tornado. Dunn began dating Wiggett after his arrival in June. In early September, Dunn returned to Trenton, New Jersey. At some time before Dunn left, Wiggett told him that she might be pregnant and that she planned to see a doctor to confirm her pregnancy. After Dunn returned to New Jersey, Wiggett told him she was, in fact, pregnant. Dunn continued to talk with Wiggett by telephone, and during their calls they discussed sonograms and the progress of the baby. In March 2000, Wiggett told Dunn the sonogram showed the baby was a girl. Up to the time of Wiggett’s arrest for this incident, Dunn believed Wiggett was pregnant and would have a baby sometime around the end of June 2000.
Officer Weber testified that Wiggett told all her family members and friends that she was pregnant. Debra gave Wiggett some of her maternity clothes to wear.
Wiggett’s mother Carol testified that Wiggett lived at home with her parents and attended nursing school. From May 1999 to June 2000, she observed physical changes in Wiggett’s appearance. She thought she felt the baby move and believed her daughter was pregnant.
After Carol asked Wiggett several times whether the doctor would perform a sonogram, Wiggett showed Carol a sonogram picture of a baby with the word “girl” written on it. Carol said that she and her husband redecorated a room in their house for the baby.
On June 27, 2000, as Carol, her husband, and Wiggett watched the 10 p.m. news, they saw a news broadcast about the incident at Toys-R-Us that described a green teal Honda. Carol testified, “Roger and I were kind of sitting across from each other, and we just looked at each other, then we looked at [Wiggett], and she just burst out in tears. She told us that it was her.”
When Carol asked Wiggett why she did it, Wiggett replied that she lost the baby at 8 months. Carol’s husband called Hulse, Officer Weber, and Debra and asked them to come over. They asked Weber how Wiggett should turn herself into police. Hulse, Debra, and Carol went to Wiggett’s room to try to determine what happened, and they found itemized bills from The Center for Reproductive Medicine, in Wichita, and photographs of a sonogram reproduced at Wal-Mart. Upon examining the pictures closely, Debra and Hulse realized that the sonogram was actually a picture of Hulse’s baby girl. A few weeks later, Carol learned that Wiggett did not have a miscarriage at 8 months and, in fact, had not been pregnant.
Joleen Zivnuska, a nurse practitioner at The Center of Reproductive Medicine, stated that she had seen Wiggett as a patient from September 1999 through June 26, 2000. On October 10, 1999, Wiggett was inseminated with donor sperm for the first time. Wiggett received a total of 11 inseminations over the next 6 months. In May 2000, Wiggett was given a prescription for clomiphene citrate, a fertility medication. Zivnuska confirmed that Wiggett did not appear for her June 29, 2000, appointment, 2 days after the incident in the Toys-R-Us parking lot.
Dr. Douglas Mould, an expert psychologist for the defense, found Wiggett’s symptoms consistent with the mental disorder pseudocyesis, also known as false or hysterical pregnancy. Mould testified that in his opinion Wiggett was in a dissociative state and was not capable of forming criminal intent when the incident took place.
Dr. William Levine, a psychiatrist, testified as a rebuttal witness on behalf of the State. Levine stated that it was possible Wiggett suffered from pseudocyesis, but concluded that, apart from Wiggett’s own statements, the evidence did not show that Wiggett suffered from a mental disorder at the time of the offense.
Prior to trial, defense counsel filed a motion attacking the sufficiency of the affidavit of probable cause. On July 26, 2000, a hearing was conducted on the .motion by Judge Rebecca Pilshaw. Defense counsel contended that the unlawful interference with parental custody statute more specifically described the crime committed by Wiggett and was a lesser included crime of kidnapping. Therefore, the defense contended that the probable cause affidavit did not support the charge of kidnapping. Judge Pilshaw found that the “taking” required in the interference statute did not necessarily involve the element of force required in kidnapping. Therefore, she denied the motion.
During the trial, defense counsel filed a motion for judgment of acquittal, asserting that the evidence adduced at trial was insufficient to support the jury’s finding of guilt as to the attempted kidnapping charge. Judge Malone overruled the motion. After the trial, defense counsel renewed the motion for judgment of acquittal and also filed a motion for a new trial, contending that the arrest affidavit was insufficient, that the trial court failed to properly in struct the jury, and that the trial court erred by denying defense counsel’s motions for judgment of acquittal made during the trial.
Judge Malone conducted a hearing on post-trial motions and sentencing proceedings. Judge Malone found that both parental interference and kidnapping involved a taking or confining, but that kidnapping required the use of force while interference did not, which made the two crimes distinct. Therefore, he overruled the motion for judgment of acquittal and the motion for a new trial.
For her first assertion of error, Wiggett argues that the trial court erred when it overruled her motion to dismiss the attempted kidnapping charge filed against her, and when it overruled her succeeding motions for judgment of acquittal concerning the same charge.
“In ruling on a motion for judgment of acquittal, if a trial judge concludes from the evidence that a reasonable mind might fairly decide a defendant is guilty beyond a reasonable doubt, the motion must be denied and the case must go to the juxy. On appeal, the reviewing court must decide whether a rational factfinder could have found the accused guilty without a reasonable doubt. [Citation omitted.]” State v. Valdez, 266 Kan. 774, 784, 977 P.2d 242 (1999).
The standard of review on a motion for a judgment of acquittal in a criminal case is sufficiency of the evidence. State v. Juiliano, 268 Kan. 89, 95, 991 P.2d 408 (1999); State v. Wilkins, 267 Kan. 355, 365, 985 P.2d 690 (1999).
The crime of attempt is defined as “any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.” K.S.A. 21-3301(a).
Kidnapping is defined as follows:
“Kidnapping is the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person:
“(a) For ransom, or as a shield or hostage;
“(b) to facilitate flight or the commission of any crime;
“(c) to inflict bodily injury or to terrorize the victim or another; or
“(d) to interfere with the performance of any governmental or political function.” K.S.A. 21-3420.
The crime of interference with parental custody is defined as “leading, taking, carrying away, decoying or enticing away any child under the age of 16 years with the intent to detain or conceal such child from its parent, guardian, or other person having the lawful charge of such child.” K.S.A. 21-3422(a).
The crime of interference with parental custody may be accomplished in several ways. The perpetrator may lead the child away, physically take or carry the child away, or decoy or entice the child away. The removal of the child from his or her parent or lawful custodian must be accomplished with the specific intent to detain or conceal the child. There is no requirement that the taking be accomplished by force or deception. See K.S.A. 21-3422; PIK Grim. 3d 56.26.
State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976), is instructive. There, kidnapping was defined as “ To take and carry away any person by unlawful force or by fraud, and against his will.’ [Citation omitted.]” 219 Kan. at 209 (quoting State v. Brown, 181 Kan. 375, 388, 312 P.2d 832 [1957]). In addition, the kidnapping statute was construed to require no particular distance of removal or time or place of confinement. 219 Kan. at 214. The Buggs court, however, qualified that construction by stating:
“Our statute requires that the taking or confinement be accomplished not only by the proscribed means (i.e., ‘by force, threat or deception’) but also with the specific intent to accomplish one of four types of objectives. . . .
“We are concerned here with the second type of intent, i.e., to hold the victim ‘(b) to facilitate . . . the commission of any crime.’ . . . Under our statute a taking is a kidnapping if its purpose is to ‘facilitate’ the commission of any crime, even if the crime facilitated be a less serious crime such as robbery or rape.
“. . . To be kidnapping, therefore, the taking need not be necessary to the accomplishment of the underlying crime, but it must be aimed at making it at least ‘easier.’ ” 219 Kan. at 214-15.
The Buggs court further explained that “[t]he completed crime of robbery is thus the Taking’ of property from the person by the proscribed means; an ‘attempt’ to commit robbery occurs only when the taking is not accomplished.” 219 Kan. at 206.
In this case, an attempt to kidnap a person would only have occurred when the taking was not accomplished. The State was not required to prove that a taking occurred. Rather, the State was required to show that Wiggett committed an overt act toward the perpetration of kidnapping the baby and acted with the specific intent to facilitate the commission of a crime.
Wiggett believes that her actions constituted a single attempted taking and that under the Buggs holding, a single taking cannot support both the attempted kidnapping charge and the underlying charge of interference with parental custody. Wiggett’s argument arises from the portion of Buggs where this court stated:
“[Our] kidnapping statute is not reasonably intended to cover movements and confinements which are slight and ‘merely incidental’ to the commission of an underlying lesser crime. ... In the light of our statute, however, we cannot agree that merely because a taking ‘facilitates’ another crime it must necessarily be ‘merely incidental’ to the other crime. Whether a taking substantially‘facilitates’ another crime or whether it is ‘merely incidental’ are two different things. The same taking cannot be both." (Emphasis added.) 219 Kan. at 215.
The Buggs court sought to define and distinguish the “taking” requirement of a kidnapping from the incidental movement that often occurs during a robbery or a rape. There, the court concluded:
“[I]f a taking or confinement is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement:
“(a) Must not be slight, inconsequential and merely incidental to the other crime;
“(b) Must not be of the kind inherent in the nature of the other crime; and
“(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.” 219 Kan. at 216.
Here, Wiggett broadly characterizes the taking necessary for the commission of both crimes as one continuous action. Wiggett argues that under the Buggs analysis, the one attempted taking cannot constitute both the taking element of a kidnapping and the taking element of the underlying crime. If we were to accept this characterization, however, it would be impossible for any person who forcibly abducts a child for the purpose of keeping the child permanently to commit a kidnapping.
“[C]riminal statutes must be strictly construed in favor of the accused. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute. The rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. [Citations omitted.]” State v. Vega-Fuentes, 264 Kan. 10, 14, 955 P.2d 1235 (1998).
“The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutoiy provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 76 L. Ed. 306, 52 S. Ct. 180 (1932). The crime of kidnapping requires the element of taking by force, and that force is not inherent in the nature of the crime of interference with parental custody. In addition, kidnapping does not require that a perpetrator act with the intent to detain or conceal a child from his or her parent and does not require that a victim be under 16 years of age.
Here, once the child was taken by force from her mother, Wiggett intended to take the child elsewhere, permanently removing the child from the custody of her parents while concealing her identity. Wiggett told Dr. Mould that when she went into the store and saw Downing and her baby girl, she thought to herself that could have been her, and then she thought she could take the baby and it would be hers. Thus, the actions of Wiggett, although never brought to fruition, may be separated into (1) a taking with force intended to facilitate a crime and (2) the permanent nonforceful removal of a child under 16 years of age from her legal custodians with the intent to detain or conceal the child.
Although Wiggett was unsuccessful, her use of force in an attempt to remove the child from her mother was neither slight, inconsequential, nor incidental to the commission of interference with parental custody. Furthermore, Wiggett’s violent attack on Downing was not of the kind inherent in the nature of the underlying crime. Because the underlying crime did not require the use of force, Wiggett’s attack on Downing has significance independent of the nonforceful taking or separation requirement of interference with parental custody.
We find there is sufficient evidence for a rational factfinder to find Wiggett guilty beyond a reasonable doubt of attempted kidnapping. Therefore, the trial court did not err in overruling Wiggett’s motion to dismiss the attempted kidnapping charge or her motions for judgment of acquittal.
For her second assertion of error, Wiggett claims that the trial court erred in failing to instruct the jury on several lesser included offenses. Wiggett contends that die crimes of (1) attempted aggravated interference with parental custody; (2) attempted interference with parental custody; and (3) attempted criminal restraint may all be classified as lesser included offenses of attempted kidnapping. The issue before us is whether Wiggett was entitled to instructions on these three offenses.
“When reviewing challenges to jury instructions, we are required to consider all the instructions together, read as a whole, and not to isolate any one instruction. If the instructions properly and fairly state the law as applied to the facts of the case, and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous. [Citation omitted.]” State v. Mitchell, 269 Kan. 349, 355, 7 P.3d 1135 (2000).
“Whether a crime is a lesser included offense is a question of law over which we have unlimited review. [Citation omitted.]” State v. Belcher, 269 Kan. 2, 4, 4 P.3d 1137 (2000).
“The trial court has the duty to instruct the jury not only as to the crime charged in the information, but also as to such lesser offenses included therein as may be justified by the evidence.” State v. Evans, 219 Kan. 515, 517, 548 P.2d 772 (1976). “If evidence at trial merits a lesser included offense instruction, ‘a court is under an affirmative duty to give an instruction on a lesser included offense . . . even if a defendant fails to request it. [Citation omitted.]’ ” State v. Orr, 262 Kan. 312, 336, 940 P.2d 42 (1997) (quoting State v. Southerland, 248 Kan. 96, 101, 804 P.2d 970 [1991]).
Here, Wiggett was charged with attempted kidnapping, aggravated battery, and aggravated burglary. The aggravated battery and aggravated burglary charges are not at issue. Furthermore, Wiggett concedes that the physical acts which gave rise to the charges actually occurred. Wiggett’s brief states: “[T]he Defendant never de nied the physical acts which gave rise to the charges against her. Instead she presented a psychological defense, alleging that by reason of mental disease or defect, she was incapable of forming the required criminal intent. In the alternative, Defendant argued that she was "overcharged.’ ”
The State maintains that since the elements of the crimes of attempted or aggravated interference with parental custody are not identical to some of the elements of kidnapping, neither is a lesser included offense of attempted kidnapping. Second, the State contends that the evidence excluded a theory of guilt on the lesser included offense of criminal restraint. First, we turn to aggravated interference with parental custody and attempted interference with parental custody to determine whether these offenses are lesser included crimes of attempted kidnapping.
K.S.A. 2001 Supp. 21-3107 states:
“(1) When the same conduct of a defendant may establish the commission of more than one crime under the laws of this state, the defendant may be prosecuted for each of such crimes. Each of such crimes may be alleged as a separate count in a single complaint, information or indictment.
“(2) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or a lesser included crime, but not both. A lesser included crime is:
(a) A lesser degree of the same crime;
(b) a crime where all elements of the lesser crime are identical to some of the elements of the crime charged;
(c) an attempt to commit the crime charged; or
(d) an attempt to commit a crime defined under subsection (2)(a) or (2)(b).”
As discussed previously, the elements of interference with parental custody are not identical to some of the elements of kidnap-, ping. Both crimes require a taking, but kidnapping requires a forceful taking. Further, kidnapping does not necessarily involve a victim under 16 years of age and does not require that the perpetrator act with the intent to detain or conceal the child victim from his or her legal custodian. Because these crimes require different elements, conduct constituting interference with parental custody cannot be equated with an attempt to commit a kidnapping or a lesser degree of kidnapping. Therefore, we hold that neither attempted interference with parental custody nor aggravated inter ference with parental custody is a lesser included offense of attempted kidnapping.
We now turn to Wiggett’s claim of error as to the trial court’s refusal to instruct the jury on criminal restraint. “Criminal restraint is knowingly and without legal authority restraining another person so as to interfere substantially with such person’s liberty.” K.S.A. 21-3424(a).
Previously, in State v. Timms, 29 Kan. App. 2d 770, 31 P.3d 323 (2001), we compared the crime of criminal restraint with kidnapping. There we stated:
“Ordinarily, criminal restraint is a lesser included offense of kidnapping. [Citations omitted.] When there is a factual question as to whether a defendant had the specific intent required to prove kidnapping, an instruction on criminal restraint is warranted. See State v. Carter, 232 Kan. 124, 126, 652 P.2d 694 (1982).
“The key difference between kidnapping and criminal restraint is that kidnapping requires specific intent and criminal restraint does not.” 29 Kan. App. 2d at 774.
The State contends that here the trial court did not challenge the legal conclusion that criminal restraint is a lesser included offense of kidnapping but, instead, based on Wiggett’s admissions, decided that the evidence excluded the crime of criminal restraint. The State cites State v. Carter, 232 Kan. 124, 652 P.2d 694 (1982), where the defendant argued he lacked the capacity to commit the crime of kidnapping because of voluntary intoxication. There, this court held that unlawful restraint was a lesser included offense of the crime of kidnapping, but also noted:
“ ‘The rule is well established that the duty to instruct on lesser included crimes arises only when there is evidence under which the defendant might have reasonably been convicted of the lesser offense. [Citations omitted.] Thus, if the evidence offered excludes a theory of guilt on a lesser included offense, the instruction need not be given. [Citations omitted.]’ ” 232 Kan. at 125-26.
The question here is whether the evidence presented excludes a theoiy of guilt on criminal restraint. See State v. Spresser, 257 Kan. 664, 672, 896 P.2d 1005 (1995). If there was no factual question as to whether Wiggett acted with the specific intent to take the Downing baby to facilitate the commission of a crime, then the theory of guilt for criminal restraint would be ruled out. See State v. Dunn, 223 Kan. 545, 548, 575 P.2d 530 (1978) (concluding that the evidence presented did not require an instruction on the lesser offense of unlawful restraint).
Here, the trial court noted that the evidence was uncontroverted that Wiggett’s actions in the parking lot were done with force and concluded that the jury should either find her guilty or not guilty of attempted kidnapping.
The evidence presented in this case shows that Wiggett acted with specific intent, unnecessary for criminal restraint, but required for the crime of kidnapping. “As in Timms, [t]his case involved more than just grabbing someone’s arm and delaying them or blocking someone’s path to prevent them from leaving.” Timms, 29 Kan. App. 2d at 774. Wiggett readily admitted to family, friends, and the police that she fabricated a story to distract Downing, sprayed her face with pepper spray, knocked her down, and then tried to pull the baby’s car seat out of the vehicle. Wiggett’s own admissions establish that she attempted to forcefully take the baby from Downing so that she could keep the baby as her own.
After reviewing the record, we conclude that a jury could not reasonably convict Wiggett of criminal restraint, even if instructed on the same as a lesser included offense. Therefore, the court did not err in refusing to give the requested instructions.
For her final assertion of error, Wiggett contends that her convictions should be set aside because of overwhelming evidence that she was in a dissociative state on June 27, 2000, in the parking lot of Toys-R-Us. According to Wiggett, the evidence presented was insufficient to support the finding that she had the required criminal intent or state of mind at the time of her conduct.
“When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Mason, 268 Kan. 37, 39, 986 P.2d 387 (1999).
Dr. Mould testified as an expert witness for Wiggett. Mould initially performed a psychological assessment of Wiggett in preparation for a bond hearing and later provided counseling to her. Mould learned that Wiggett still believed she was pregnant, even though she was receiving the inseminations, and found her symptoms consistent with the mental disorder pseudocyesis, also known as false or hysterical pregnancy. Mould testified that in his opinion, Wiggett was in a dissociative state and was not capable of forming criminal intent when the incident took place.
Dr. Steven Zielke, a board-certified obstetrician and gynecologist, testified for the defense that Wiggett’s inability to ovulate in May and June was one symptom that would be consistent with a diagnosis of pseudocyesis, but did not testify as to her psychological condition.
Janis Roberts, a registered nurse who was married to Wiggett’s cousin, testified that she saw Wiggett at Toys-R-Us between 3 and 4 p.m. on June 27, 2000. When Roberts tried to start a conversation, she reported that Wiggett acted strangely. “It’s like I was talking to her but she wasn’t really responding or grasping what I was saying to her. It’s like she wasn’t — -she was there physically, but not in reality.” Roberts was concerned and later went looking for Wiggett but could not find her in the store.
Dr. William Levine, a psychiatrist, testified as a rebuttal witness on behalf of the State. Levine stated that it was possible Wiggett suffered from pseudocyesis, but said he could not confirm or reject that diagnosis. Levine concluded that, apart from Wiggett’s own statements, the evidence did not show that Wiggett suffered from a dissociative state or mental disorder at the time of the offense. Rather, Levine believed Wiggett suffered from an antisocial personality disorder and acted impulsively on the date of the incident without thinking of the consequences of her actions. Levine testified that he believed it was still possible for a person in a dissociative state to form criminal intent.
We will not reweigh the evidence. Levine testified that he did not believe Wiggett was in a dissociative state at the time of the incident. Further, even if the jury chose to believe Mould’s assertion that Wiggett was in a dissociative state, Levine testified that he thought such a person could still form criminal intent. Considering the evidence in the light most favorable to the State, we find there was sufficient evidence for the jury to find beyond a reason able doubt that Wiggett had the required criminal intent or state of mind at the time of her conduct. Thus, Wiggett’s final claim of error fails.
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|
The opinion of the court was delivered by
Larson, J.:
This is Daniel F. Schuette’s direct appeal of his convictions of criminal threat under K.S.A. 21-3419(a)(l) (a person felony) and harassment by telephone under K.S.A 21-4113(a)(2) (a nonperson misdemeanor). Our jurisdiction is under K.S.A. 20-3018(c).
The relevant facts can be tersely summarized. In the early morning hours of May 26, 2000, Theodore Wright received two calls at his home, which was located behind Don’s Steak House in Shawnee County, Kansas. During the first call, Wright said, “Hello,” but did not hear anyone on the other line and hung up the phone. The second call came immediately afterward. The caller was angry, sounded drunk, and was yelling loudly.
Wright recognized the caller’s voice as that of Daniel Schuette. Schuette talked for several minutes. Wright remembered Schuette making the following comments: “I’m going to f... you in the butt, you fagot. I’m going to break your neck and your arms and your legs and chop you up in little pieces and I’m going to kill you.” Wright knew Schuette’s voice from the several times he had heard him speak while dining at Don’s Steak House. He had previously conversed with Schuette by phone when he asked Schuette to stop harassing the waitresses at the restaurant.
Wright’s fiance, Lori Holstead, was with him when he received the call. At some point, Wright turned the phone so Holstead could hear the call. She heard Schuette comment that he was going to chop her up into little pieces and kill both her and her children. She recognized the voice as Schuette’s, a regular customer at Don’s Steak House, where she was employed at the time as a waitress.
Wright reported the call to the Sheriffs Department, and an investigating officer was sent in response. Wright’s telephone had caller ID service. His caller ID showed, per his testimony as well as Holstead’s and the investigating officer’s, that there was a call placed to his home on May 26, 2000, at 7:20 a.m., from Daniel Schuette, accompanied by Schuette’s phone number. The caller ID showed that another call from the same phone number was received at 7:21 a.m., but no name registered for that call. The number displayed on the caller ID was the same as that listed for Daniel F. Schuette in both the 1999-2000 and 2000-2001 Southwestern Bell telephone directories.
Schuette was charged and convicted of one count of criminal threat and one count of harassment by telephone. He was sentenced to 12 months’ probation, with an underlying prison sentence of 6 months for the felony charge. He appeals, claiming that the caller ID evidence was improperly admitted and the two crimes for which he was charged and convicted were multiplicitous.
Caller ID evidence
In arguing the trial court erred in admitting the caller ID evidence, Schuette contends (1) there was not a sufficient foundation laid, (2) the caller ID evidence was inadmissable hearsay, and (3) admission of testimony concerning the caller ID information violated the best evidence rule.
Generally, the admission of evidence lies in the sound discretion of the trial court. “Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.” State v. Whitesell, 270 Kan. 259, 276, 13 P.3d 887 (2000).
Schuette argues that because the trial court failed to require any foundation to admit the caller ID evidence, it committed a mistake of law over which this court’s review is plenary, citing Kuhn v. Sandoz Pharmaceuticals Corp., 270 Kan 443, 445-456, 14 P.3d 1170 (2000). In Kuhn, expert medical testimony was excluded by the trial court based on the test pronounced in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). We held that admission of the particular expert testimony was not subject to the Frye test, reversing the district court’s summary judgment and remanding with instructions. In deciding whether the Frye test was applicable, we noted that while generally the admission of evidence is reviewed for abuse of discretion, it is a question of law as to whether the Frye test should be applied.
Schuette correctly points out there are no Kansas cases which have articulated the necessary foundation for caller ID evidence. Schuette proposes that foundation testimony must establish (1) the scientific or technical principles employed by the caller ID unit, (2) the device was working properly and reliably on the date in question, and (3) the operator of the caller ID unit was sufficiently qualified to use the device. He relies on the Kansas decisions of State v. Lowry, 163 Kan. 622, 185 P.2d 147 (1947), State v. Estill, 13 Kan. App. 2d 111, 764 P.2d 455 (1988), rev. denied 244 Kan. 739 (1989), and State v. Primm, 4 Kan. App. 2d 314, 606 P.2d 112 (1980).
Prim and Lowry are factually distinguishable. In Prim, the Kansas Court of Appeals considered whether read outs from police radar units were admissible, and the analysis was clearly limited to cases pertaining to radar. 4 Kan. App. 2d at 315-17. In Lowry, this court considered and rejected the admissibility of lie detector tests. 163 Kan. 622. Both situations differ from our facts.
In Estill, the Court of Appeals considered the admissibility of a computer-generated “phone trap” record The court explained that a phone trap is where “a telephone company computer traces all calls made to [the requesting customer’s] number and records and stores the numbers of the phones from which the calls originated.” 13 Kan. App. 2d at 112. A Southwestern Bell employee testified the records were kept in the ordinary course of business. He could not testify, on cross-examination, as to the internal operations of the computer. After citing decisions from several jurisdictions pertaining to the admissibility of similar electronic devices, the court concluded:
“We are of the opinion the trial court properly admitted the evidence as a business record. The question of reliability goes to the weight of the evidence and not to its admissibility. The evidence here concerns the method used to employ the trap. A corresponding log attests to the accuracy and trustworthiness of the computer, and the fact that harassing calls were traced to two separate numbers, both tied to the defendant, adds to the information’s reliability and trustworthiness.” 13 Kan. App. 2d at 116.
The Esttll court analyzed the opinions of People v. Holowko, 109 Ill. 2d 187, 191, 486 N.E.2d 877 (1985), and State v. Armstead, 432 So. 2d 837 (La. 1983), which both agreed that computer-generated data (data which is reflective of the internal operations of a computer system), as opposed to computer-stored data (data which is placed into a computer by an out-of-court declarant), should be treated as nonhearsay:
“ ‘The evidence is generated instantaneously as the telephone call is placed, without the assistance, observations, or reports from or by a human declarant. The printouts of such data are merely the tangible result of the computer’s internal operations.’ . . .
“The court in Armstead noted that the underlying rationale of the hearsay rule is that out-of-court statements are made without an oath and their truth cannot be tested by cross-examination. With a machine, however, there is no possibility of a conscious misrepresentation, and the possibility of inaccurate or misleading data only materializes if the machine is not functioning properly.’ 432 So. 2d at 840.
“ ‘Since the computer was programmed to record its activities when it made the telephone connections, the printout simply represents a self-generated record of its operations, much like a seismograph can produce a record of geophysical occurrences, a flight recorder can produce a record of physical conditions onboard an aircraft, and an electron microscope can produce a micrograph, which is a photograph of things too small to be viewed by the human eye.’ 432 So. 2d at 840.” 13 Kan. App. 2d at 114.
Two opinions concerning the admissibility of caller ID evidence, cited and relied on by both parties, are also referenced by the Wright and Gold Treatise of Federal Practice and Procedure on Evidence. In discussing Fed. R. Evid. 901(b)(5), authentication of voice identification, the treatise notes:
“Caller ID is a device that displays for the recipient of a telephone call the number of the telephone from which the call was made. While Caller ID information may be admitted to prove the source of the call, a foundation is necessary to establish the proper functioning of that device. [Citations omitted.]” 31 Wright & Gold, Federal Practice and Procedure: Evidence § 7110 n.42 (2000).
The cited opinions are Culbreath v. State, 667 So. 2d 156 (Ala. Crim. App. 1995), and Tatum v. Commonwealth, 17 Va. App. 585, 588-89, 440 S.E.2d 133 (1994).
In Tatum, the Virginia court considered as a matter of first impression the admissibility of caller ID evidence. After first holding that caller ID evidence is not hearsay because it is computer-generated information, with no out-of-court declarant, the court analyzed the issue of reliability. The court noted the recipient of the call had received other calls from this particular individual in the past, of which he was able to recall at least one specific instance, and the same number registered on the caller ID. The court found that this was sufficient to show the caller ID device attached to the witness’ phone was rehable.
In Culbreath, caller ID evidence was introduced against the defendant. On appeal, he argued the evidence was hearsay, the witness who introduced the reading was not an expert, and the Frye standards were not met. The court rejected all of the defendant’s arguments, finding the only prerequisite to admission of caller ID evidence was a showing of reliability of the device used. In so holding, the court relied on Tatum. The court noted that reliability of the particular caller ID device was shown through the victim’s testimony, specifically that each time she received the harassing phone calls she would activate her caller ID and the same number would appear for each call. 667 So. 2d at 162.
The logic of Tatum, Culbreath, and Estill is sound. The foundation requirement of reliability is satisfied through witness testimony that the caller ID device is or has in the past been operating properly. In our present case, both Holstead and Wright testified that it was Schuette’s voice on the other line during the second call. They both knew and recognized Schuette’s voice. Schuette’s number appeared on the caller ID display for that call, as well as his name and number on the call received just one minute earlier. This evidence supplies sufficient foundation to establish that the device was reliable.
Schuette’s arguments that the users of the caller ID unit were not trained experts in its operation, as well as his contention that the underlying scientific principles must be introduced before admission of the evidence, are disingenuous. We take judicial notice that the operation of caller ID units does not require any advanced training; the record additionally reflects that by merely pressing arrow buttons, the user could review prior calls that were made. This fact is “so generally known or of such common' notoriety within the territorial jurisdiction of the court that [it] cannot reasonably be the subject of dispute.” K.S.A. 60-409(b)(3).
Schuette’s claim that the Frye test must be applied, or some other scientific proof, in order to introduce caller ID evidence is rejected based on Estill, Culbreath, and Tatum.
Schuette’s argument that caller ID evidence constitutes inadmissible hearsay appears to run contraiy to every jurisdiction that has broached this matter. Each court has held that caller ID displays are merely computer generated read outs and not hearsay statements of persons or electronically regenerated hearsay statements. Bowe v. State, 785 So. 2d 531, 532 (Fla. Dist. App. 2001); Inglett v. State, 239 Ga. App. 524, 526, 521 S.E.2d 241 (1999); Culbreath, 667 So. 2d at 162; Tatum, 17 Va. App. at 588.
Schuette’s citation to Estill is not persuasive. The court’s holding did not “necessarily recognize” that phone trap records must come in through the business records exception; rather, the court merely affirmed the trial court’s admission of the evidence through that exception. The court never specifically found whether phone trap records constituted hearsay. The caller ID display is not the output of statements from an out-of-court declarant but merely the result of the device’s operations, which is not hearsay.
Schuette contends that admission of testimony concerning the caller ID display constitutes a violation of the best evidence rule. He claims that the only proper method of introducing the evidence would be to introduce the caller ID unit itself.
K.S.A. 60-467(a) states in relevant part: “As tending to prove the content of a writing, no evidence other than the writing itself is admissible, except as otherwise provided in these rules, unless the judge finds [one of the enumerated exceptions].” At issue is whether a caller ID display constitutes a writing.
K.S.A. 60-401(m) defines a “writing” as “handwriting, typewriting, printing, photostating, photographing and every other means of recording upon any tangible thing any form or communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof.” (Emphasis added.)
Caller ID displays by their nature are not “recording[s] upon any tangible thing.” The results cannot be printed out or saved on an electronic medium. As the prosecutor noted during arguments prior to trial, “when we unplug it, it’s gone.” Schuette’s argument is akin to contending that a clock must be produced before a witness can testify as to the time he or she observed an accident. Schuette’s best evidence argument is not persuasive.
Schuette’s reliance on this court’s holding in State v. Muck, 262 Kan. 459, 939 P.2d 896 (1997), is misplaced. In Muck, we upheld the trial court’s exclusion of the results of a breath alcohol test due to the officer’s failure to produce his certification card. 262 Kan. at 464-65. At trial, the State did not attempt to argue that the card had been lost, nor did it attempt to show compliance with any other statutory exceptions to the best evidence rule. Certification to use the equipment was required by statute. K.S.A. 8-1002(a)(3). The card is a tangible recording of the certification and not merely a phantasmagorical electronic display. As such, this case is entirely distinguishable and has no relevant application to the present facts.
As a final note, while only a few courts have squarely addressed the issue of admissibility of caller ID evidence, the evidence has been used in several criminal cases. See United States v. Marshall, 132 F.3d 63, 66 (D.C. Cir. 1998); State v. Gordon, 234 Ga. App. 551, 507 S.E.2d 269 (1998); State v. Ware, 795 So. 2d 495, 501 (La. App. 2001); State v. Harris, 145 N.C. App. 570, 581, 551 S.E.2d 499 (N.C. 2001). It also appears that caller ID evidence aided in the discovery and conviction of the defendant in our recent decision of State v. Kleypas, 272 Kan. 894, 40 P.3d 139 (2001).
Multiplicity
Schuette contends that his convictions of telephone harassment and criminal threat were multiplicitous. As we have recently held: “Whether convictions are multiplicitous is a question of law subject to unlimited review.” State v. Robbins, 272 Kan. 158, 32 P.3d 171 (2001).
The most current pronouncement regarding multiplicity is found in State v. Garcia, 272 Kan. 140, 143-44, 32 P.3d 188 (2001):
“Multiplicity is the charging of a single offense in several counts of a complaint or information. The primary concern with multiplicity is that it creates the potential for multiple punishments for a single offense. State v. Vontress, 266 Kan. 248, 255, 970 P.2d 42 (1998). Such multiple punishments are prohibited by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); State v. Edwards, 250 Kan. 320, 329, 826 P.2d 1355 (1992). . . .
“The concept of multiplicity in Kansas comes from two sources. The first is the traditional ‘common-law’ multiplicity concept. This exists where the State attempts to use a single wrongful act as the basis for multiple charges and is based on die merger of the charges. State v. Garnes, 229 Kan. 368, 372, 624 P.2d 448 (1981). This concept has been a part of Kansas law since at least our decision in State v. Colgate, 31 Kan. 511, 515, 3 P. 346 (1884), wherein we stated: ‘[U]pon general principles a single offense cannot be split into separate parts, and the supposed offender be prosecuted for each of such separate parts, although each part may of itself constitute a separate offense.’ The test for whether the offenses merge and are, therefore, multiplicitous is whether each offense charged requires proof of a fact not required in proving the other; if so, then the offenses do not merge and are not multiplicitous. Garnes, 229 Kan. at 373, 624 P.2d 448. Offenses also do not merge if they are committed separately and severally at different times and at different places. 229 Kan. at 373, 624 P.2d 448.”
The second source, or layer, of the multiplicity analysis formerly came by statute in K.S.A. 21-3107(2)(d). K.S.A. 21-3107(2)(d) defined an included offense as “a crime necessarily proved if the crime charged were proved” and stated that a defendant could not be convicted of both the crime charged and the included offense. This statute was amended in 1998, and subsection (2)(d) was eliminated. L. 1998, ch. 185, sec. 1. It was replaced with language defining an included crime as “a crime where all elements of the lesser crime are identical to some of the elements of the crime charged.” See K.S.A. 2001 Supp. 21-3107(2)(b). The present statutory language in essence mirrors the common-law elements test, thereby leaving it as the only remaining test for multiplicity. See also State v. Saiz, 269 Kan. 657, 662-63, 7 P.3d 1214 (2000) (for crimes committed after effective date of 1998 amendment of K.S.A. 21-3107, second prong of State v. Fike, 243 Kan. 365, 757 P.2d 724 [1988] disregarded).
Criminal threat is defined in relevant part as “any threat to . . . [c]ommit violence communicated with intent to terrorize another.” K.S.A. 21-3419(a)(l). Harassment by'telephone is, for purposes applicable to this charge, “use of telephone communication for. . . making a telephone call, whether or not conversation ensues, . . . with intent to abuse, threaten or harass any person at the called number.” K.S.A. 21-4113(a)(2).
As stated previously: “The test for whether the offenses merge and are, therefore, multiplicitous is whether each offense charged requires proof of a fact not required in proving the other; if so, then the offenses do not merge and are not multiplicitous.” Garcia, 272 Kan. at 143-44.
Schuette contends that the element of intent to terrorize as required for criminal threat is the same as intent to harass, abuse, or threaten by telephone. This point is immaterial in resolving whether criminal threat and telephone harassment are multiplicitous under the present charges.
Criminal threat requires that the threat be communicated. Communication is not a required element of harassment by telephone. Harassment by telephone requires using a telephone with the intent to harass, abuse, or threaten the person called. A defendant need not use a telephone in order to be found guilty of criminal threat. In that criminal threat requires proof that the threat was communicated and telephone harassment does not, and telephone harassment requires proof that the telephone was used and crim inal threat does not, the two offenses do not merge in the present context. Schuette’s convictions are, therefore, not multiplicitous.
Schuette’s additional arguments are not persuasive. First, Schuette’s conclusion that “telephone harassment is actually a telephone communication expressing an intent to inflict, among other things, physical harm” is erroneous. K.S.A. 21-4113(a)(2) prohibits use of the telephone itself for harassment and other listed purposes, not the actual communication of the threats. As stated at the beginning of the statute: “Harassment by telephone is use of telephone communication for any of the following purposes.” (Emphasis added.) K.S.A. 21-4113(a). The particular subsection applicable here also states “making a telephone call, whether or not conversation ensues.” (Emphasis added.) K.S.A. 21-4113(a)(2). Hence, it is the use of the telephone as an instrument of harassment that the statute seeks to prevent. Further supporting this conclusion is the legislature’s classification of telephone harassment as a nonperson misdemeanor. K.S.A. 21-4113(d).
Second, Schuette purports that two convictions cannot arise from a single act or transaction. In support, he cites to State v. Warren, 252 Kan. 169, 175, 843 P.2d 224 (1992), in which this court stated:
“ ‘Multiplicity in the crimes charged exists if the crimes charged are based on “a series of violent acts occurring] simultaneously.” State v. Cathey, 241 Kan. 715, 720, 741 P.2d 738 (1987); see State v. Smith, 245 Kan. 381, 392, 781 P.2d 666 (1989). This court has found offenses multiplicitous if the “defendant’s conduct constituted a single continuous transaction” or “one continuing unbroken act of force.” State v. Bishop, 240 Kan. 647, 653-54, 732 P.2d 765 (1987).’ ”
Schuette is correct that a defendant cannot be convicted and punished for two crimes whose elements merge if they are derived from the same act or from conduct that constituted a single continuous transaction. However, the attempt to apply this statement in the present context fails where the elements do not merge.
Both convictions are affirmed. | [
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The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by the defendant, Alroy V. Martens, from his convictions following a bench trial for three felony counts of sale of marijuana, and one count each of felony man ufacture of methamphetamine, felony possession of marijuana with intent to seE, felony cultivation of marijuana, felony possession of drug paraphemaEa, felony possession of a stimulant, felony possession of marijuana without a tax stamp affixed, and misdemeanor possession of marijuana.
Martens contends on appeal that the district court committed error by: (1) denying his motion to arrest judgment; (2) convicting him of manufacture of methamphetamine when the evidence was only sufficient to show attempt to manufacture; and (3) aEowing the late endorsement of two crucial witnesses for the State whose testimony substantiated his sale of marijuana.
During June and July of 1998, a confidential informant purchased marijuana from Martens in a series of controlled buys. Following the controlled buys, a search warrant was issued for Martens’ residence. During the subsequent search, officers discovered numerous items associated with the cultivation of marijuana and what appeared to be a methamphetamine lab.
Martens waived his right to a jury trial, and a bench trial was conducted. The district court found Martens guilty of the charges set forth in the preceding paragraphs.
Martens filed a motion for judgment of acquittal on the charge of manufacturing methamphetamine. The stated basis for die motion was that “the state presented no evidence whatsoever that the defendant manufactured methamphetamine.” In addition, counsel for Martens filed a motion to arrest judgment of conviction, arguing that the information was jurisdictionally defective in that it failed to sufficientiy charge the crime of attempted manufacture of methamphetamine.
In denying the motion for judgment of acquittal, the district judge stated: “I think Mr. Martens, according to my earlier findings, was charged under a statute which prohibited both or either . . . kind of conduct [attempt to manufacture or manufacture of a controlled substance].”
, Martens was sentenced to a controlling term of 49 months’ confinement in connection with the primary offense of “manufacture or attempt to manufacture methamphetamine” under K.S.A. 1997 Supp. 65-4159. Martens was also sentenced to a term of 15 months each for the three convictions for sale of marijuana, to run consecutive to each other but concurrent to the base sentence and, in addition, was sentenced to 36 months of postrelease supervision. In other words, the district court fashioned the sentence so that if Count 5 were reversed and not retried, Martens would still serve a controlling sentence of 45 months.
The Court of Appeals affirmed the district court’s decision. In doing so it held that because K.S.A. 1997 Supp. 65-4159 creates a single offense of manufacturing a controlled substance, the complaint was fatally defective in failing to incorporate the elements of attempt. The Court of Appeals found, however, that because the amended complaint charged Martens with both manufacturing or attempting to manufacture a controlled substance and alleged the elements of unlawful manufacture of methamphetamine, it “fully informed Martens of the crime with which he was charged.” 29 Kan. App. 2d at 366. Without further comment, the Court of Appeals concluded that the amended complaint was not jurisdiction-ally defective.
In addition, the Court of Appeals found the evidence sufficient to support Martens’ conviction for manufacturing methamphetamine. Further, that court held that the late endorsement of two witnesses for the State did not result in surprise or prejudice to Martens.
Martens timely petitioned for review. This court granted his petition for review.
MOTION TO ARREST JUDGMENT
According to Martens, Count 5 of the amended complaint was fatally defective as to the charge of manufacturing or attempting to manufacture methamphetamine in that it failed to include the essential elements of attempt. Martens argues that the Court of Appeals found attempt to manufacture a controlled substance was a separate and distinct crime from the offense of manufacture of a controlled substance, and that the complaint did not include the elements of attempt and was therefore fatally defective as to that crime. Martens asserts that the district court improperly convicted him of attempt to manufacture methamphetamine after he was charged with the manufacture of methamphetamine under K.S.A.1997 Supp. 65-4159, and, therefore, he believes his conviction is void for lack of subject matter jurisdiction.
Martens followed the proper procedure and filed a motion for arrest of judgment. Therefore, we must determine whether the amended complaint clearly informed Martens of the precise offense charged against him. This court’s review of an allegedly defective complaint or information is unlimited. State v. Crane, 260 Kan. 208, 221, 918 P.2d 1256 (1996).
On appeal, the State admitted that the amended complaint failed to allege the elements of attempt, but contended it was not required to list them because K.S.A. 1997 Supp. 65-4159 encompassed by definition the attempt to manufacture a controlled substance.
In his petition for review, Martens asserts that the Court of Appeals held there were two criminal charges in Count 5 of the complaint: (1) attempt to manufacture methamphetamine and (2) the actual manufacture of methamphetamine. Martens argues that the Court of Appeals found the attempt charge jurisdictionally defective and the manufacture charge proper, but erred in upholding his conviction because the district court convicted him of attempted manufacture of methamphetamine.
A. Manufacture versus attempted manufacture of methamphetamine.
Our analysis of this issue involves the interpretation of K.S.A. 1997 Supp. 65-4159. Interpretation of a statute is a question of law, and our review is unlimited. An appellate court is not bound by the district court’s interpretation of a statute. Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000).
Here, the district court stated that it found Martens “guilty of manufacturing or attempting to manufacture as the statute states.” In addition, the district judge stated: “I think Mr. Martens, according to my earlier findings, was charged under a statute which prohibited both or either . . . kind of conduct.” These statements establish the fact that the district court believed that K.S.Á. 1997 Supp. 65-4159 included both the actual manufacture of metham phetamine as well as the attempted manufacture of methamphetamine.
In its review of this case, our Court of Appeals distinguished the crime of attempt to manufacture methamphetamine from the crime of manufacture of methamphetamine, stating:
“K.S.A. 1997 Supp. 65-4159 is titled, in part, as ‘Unlawful manufacturing or attempting such of any controlled substance.’ The title of the statute, however, is not dispositive to the issue of whether the statute creates a single offense because ‘[t]he title or caption prefacing the text of a statute is prepared by the revisor of statutes (K.S.A. 77-133[b]) and “forms no part of the statute itself.” [Citation omitted.]’ State v. Larson, 12 Kan. App. 2d 198, 201, 737 P.2d 880 (1987).
“Section (a) of K.S.A. 1997 Supp. 65-4159 states as follows: ‘Except as authorized by the uniform controlled substances act, it shall be unlawful for any person to manufacture any controlled substance or controlled substance analog.’ (Emphasis added.) We interpret this subsection as providing the elements of the offense. The only means of violating the statute is manufacturing a controlled substance or a controlled substance analog. Because the statute does not specify attempted manufacture of a controlled substance as a means of violating the statute, attempted manufacture of a controlled substance is a separate offense created under K.S.A. 21-3301(a). This interpretation is supported by PIK Crim. 3d 67.21-A (1999 Supp.), which lists manufacture of a controlled substance, not attempted manufacture, as the means of violating K.S.A. 1997 Supp. 65-4159.” 29 Kan. App. 2d at 364-65.
The legislature enacted 65-4159 in 1990, and subsequently amended it in 1993 and 1994. The 1990 and 1993 statutes included language prohibiting “the unlawful manufacturing or attempting to unlawfully manufacture any controlled substance.” K.S.A. 65-4159; K.S.A. 1993 Supp. 65-4159. In 1994, however, the legislature extensively revised 65-4159, dividing it into four subsections and changing the language of the first subsection to read: “(a) Except as authorized by the uniform controlled substances act, it shall be unlawful for any person to manufacture any controlled substance or controlled substance analog.” The 1994 amendment omitted the words “or attempting to unlawfully manufacture” from the statutory prohibition subsection.
Although subsections (b) and (c) of 65-4159 still mention “attempting to unlawfully manufacture,” those subsections only mandate the imposition of the same penalty for attempting to unlawfully manufacture as for the actual manufacture of a controlled substance. Subsections (b) and (c) do not criminalize any specific conduct.
Within subsection (a) of 65-4159, the legislature in 1994 deleted the phrase “or attempting to unlawfully manufacture” previously seen in the statute. ‘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. [Citation omitted.]” Kaul v. Kansas Dept. of Revenue, 266 Kan. 464, 471, 970 P.2d 60 (1980), cert. denied 528 U.S. 812 (1999).
We conclude that following its amendment in 1994, 65-4159 no longer includes the crime of attempting to manufacture a controlled substance. In addition, we find that the attempted manufacture of a controlled substance is a separate offense controlled by K.S.A. 21-3301(a).
In reviewing this case, the Court of Appeals stated that “[t]he only means of violating [K.S.A. 1997 Supp. 65-4159] is manufacturing a controlled substance,” which seems to imply that the term “manufacture,” as used in K.S.A. 1997 Supp. 65-4159, maybe defined to mean only the completed process of producing methamphetamine. Upon review of the statutory definitions provided in K.S.A. 1997 Supp. 65-4101(e) and (n), however, we cannot fully agree with that interpretation of K.S.A. 1997 Supp. 65-4159.
In K.S.A. 1997 Supp. 65-4101(n), “manufacture” was defined as the “production, preparation, propagation, compounding, conversion or processing of a controlled substance either directly or indirectly by extraction from substances of natural origin or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis . . . .” Likewise, in K.S.A. 1997 Supp. 65-4101(e), a “controlled substance “meant” any drug, substance or immediate precursor included in any of the schedules designated in K.S.A. 65-4105, 65-4107, 65-4109, 65-4111 and 65-4113, and amendments to these sections.” (Emphasis added.)
The statutory definitions of the terms “manufacture” and “controlled substance” in the Uniform Controlled Substances Act include but do not mandate the consummation of a final product. See People v. Lancellotti, 19 Cal. App. 4th 809, 814, 23 Cal. Rptr. 2d 640 (1993) (quoting People v. Jackson, 218 Cal. App. 3d 1493, 1504, 267 Cal. Rptr. 841 [1990]) (“ ‘The ongoing and progressive making, assembly or creation of [a controlled substance] from its component chemicals may, but does not necessarily by definition, include the culmination of the manufacturing process, the finished . . . product.’ [Citation omitted.]”). In other words, to prove the crime of manufacture of methamphetamine, the State must show that the defendant (1) intentionally (2) completed the manufacture of methamphetamine or (3) could have successfully manufactured methamphetamine.
Under K.S.A. 21-3301(a), the anticipatory crime of attempt is defined as “any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.” To establish attempt, the State must show that the defendant: (1) performed an overt act toward the commission of a certain crime; (2) did so with the intent to commit the crime; and (3) failed to perpetrate the crime or was prevented or intercepted in the execution of the crime. See Crane, 260 Kan. at 222; State v. Sullivan & Sullivan, 224 Kan. 110, 122, 578 P.2d 1108 (1978); PIK Crim. 3d 55.01 (1999 Supp.).
“It is the intent to commit the crime, not the possibility of success, which determines whether the defendant’s act or omission constitutes the crime of attempt.” 21 Am. Jur. 2d, Criminal Law § 174, p. 251. By contrast, the focus of the crime described in 65-4159 is the successful manufacture or potentially successful manufacture of a controlled substance. Thus, while the crimes of attempt to manufacture methamphetamine and actual manufacture of methamphetamine may overlap somewhat, the distinction between the two crimes may be said to depend upon the degree of likelihood that a defendant’s efforts will succeed in producing methamphetamine.
B. Offenses charged in the amended complaint.
In order to determine whether the complaint against Martens was jurisdictionally defective, we next examine the offenses charged against Martens in the criminal complaint. The handwritten amendments to Count 5, made on August 30, 1999, read:
“That in Saline County, Kansas, on or about or between March 1 through the 9th day of July, 1998, one, ALROY VERN MARTENS did then and there unlawfully, willfully, and feloniously manufacture or attempt to manufacture a controlled substance, to wit: methamphetamine.
“K.S.A. 65-4159 (1997 Supp.) (Manufacture of Methamphetamine)
“Level 2D Nonperson Felony (Sentence range 46-83 months)”
While Count 5 does allege that Martens “willfully . . . attempted] to manufacture . . . methamphetamine,” K.S.A. 21-3301 was not cited.
In State v. Hall, 246 Kan. 728, 793 P.2d 737 (1990), this court previously stated:
“The Bill of Rights in the Kansas Constitution requires that the accused be allowed to demand the nature and cause of the accusation. Kan. Const. Bill of Rights, § 10. A defendant cannot be charged in the information with one offense and be convicted of another and different offense which is not a lesser included offense of the crime charged when instructed upon pursuant to statute. [Citation omitted.] The § 10 language is similar to the language of the Sixth Amendment to the United States Constitution, which extends to an accused the right ‘to be informed of the nature and cause of the accusation.’ [Citation omitted.]
“The constitutional protections referred to are implemented by the requirements of K.S.A. 22-3201. The complaint, information, or indictment shall be a plain and concise written statement of the essential facts constituting the crime charged and, when drawn in the language of the statute, shall be deemed sufficient. An information is sufficient if it clearly informs the defendant of the precise offense of which he or she is accused so that the accused may prepare a defense and so that a judgment thereon will safeguard the accused from a subsequent prosecution for the same offense. [Citation omitted.]” 246 Kan. at 753-54.
“The sufficiency of the charging document is measured by whether it contains the elements of the offense intended to he charged, sufficiently apprises the defendant of what he or she must be prepared to meet, and is specific enough to make a subsequent plea of double jeopardy possible. The charging document is sufficient if it substantially follows the language of the statute or charges the offense in equivalent words or words of the same import. [Citations omitted.]” State v. Smith, 268 Kan. 222, 226-27, 993 P.2d 1213 (1999).
The record reveals the following discourse between the Honorable Dan Boyer and counsel for Martens on September 3, 1999, regarding the court’s findings on the charges of manufacturing or attempting to manufacture methamphetamine:
“[THE COURT]: Let’s go back to Count 5.1 gave that particular consideration. It’s in the Court’s view that you’re charged under a statute which in its clear terms makes it unlawful to either manufacture, attempt to manufacture a controlled substance. The Court must necessarily though because of the inherent nature of that statute look at the law of attempt.
“. . . Specifically, as I considered Count 5, Mr. Martens, I had to consider had you just simply gone through acts of preparation or had you made significant steps toward the commission of the crime of manufacturing. Your intent is not in dispute. In the Court’s opinion, it’s very clear, you admitted at the police station when you were interviewed, on July the 8th I think it was, that you had attempted to manufacture methamphetamine but had failed to do so. ... So I come down to the issue, had you gone far enough to be guilty of the crime of attempt to manufacture. Now, I’m not so sure I agree with Mr. Stanton that buying the flask and the chemicals are enough, that’s a separate crime as I recall, precursors is a separate crime. I’m not sure that’s enough. . . . But it seems to the Court when you start mixing and baking you’ve gone beyond that step. The lab man who came in who is supposed to be one of the State’s experts, Dwain Worley, a KBI specialist on clandestine labs, called from the evidence he inferred this was a failed attempt to manufacture methamphetamine. He lent great credit to the coffee filters which contained ephedrine. . . . [A]ll in all, I must conclude, based — I find that intent, there’s no question about it. Now your statement was that you attempted to cook within two months prior to your arrest, statute of limitations two years. Mr. Stanton did amend the Complaint regarding Count 5 to include the language on or between March 1 and the 9th day of July, 1998. All things considered, sir, I find you guilty of Count 5—
“[Counsel for Martens]: Your Honor.
“THE COURT: —manufacture, attempt to manufacture of methamphetamine.
“[Counsel for Martens]: Your Honor, is the Court then finding the defendant guilty of manufacturing?
“THE COURT: No, I’m finding him guilty of manufacturing or attempting to manufacture as the statute states.
“[Counsel for Martens]: Your Honor, I don’t know how the Court can do that when they’re separate offenses, Your Honor.
“THE COURT: Well, I conclude that they aren’t; that’s my premise.”
The district court’s discourse reveals that the judge found Martens guilty of conduct meeting the elements of attempt to manufacture methamphetamine. The sentencing sheet, however, lists the primary offense of conviction as the manufacture or attempted manufacture of methamphetamine under K.S.A. 1997 Supp. 65-4159. The box next to the word “attempt” on the sentencing sheet is not marked, however. After carefully reading the judge’s com ments as well as other documentation in the record, it appears that the district court intended to convict Martens of both attempt and actual manufacture because the court believed both were encompassed within 65-4159.
Here, Martens contends that his conviction should be overturned because the district court clearly convicted him of attempt to manufacture, a crime not charged against him in the amended complaint. Martens challenges the subject matter jurisdiction of the district court, arguing that the court had no authority to find him guilty of attempt to manufacture methamphetamine because the complaint was fatally defective, failing to set forth the elements of attempt.
“Unless otherwise provided by law, a prosecution shall be commenced by filing a complaint with a magistrate. K.S.A. 22-2301. The complaint shall be a plain and concise written statement of the essential facts constituting the crime charged. K.S.A. 22-3201(b). Two or more crimes may be charged against a defendant in the same complaint, information or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan. K.S.A. 22-3202(1).
“The purpose of a complaint or information is to inform the accused of the particular offense or offenses with which die defendant is charged and which the defendant must defend against at time of trial. K.S.A. 21-3107(1) states which crimes may be alleged in a complaint or information by the State and how the offenses must be alleged in the charging instrument.” State v. Mincey, 265 Kan. 257, 262, 963 P.2d 403 (1998).
K.S.A. 21-3107 states:
“(1) When the same conduct of a defendant may establish the commission of more than one crime under the laws of this state, the defendant maybe prosecuted for each of such crimes. Each of such crimes may be alleged as a separate count in a single complaint, information or indictment.
“(2) Upon prosecution for a crime, the defendant máy be convicted of either the crime charged or a lesser included crime, but not both.”
The statute does not mandate that each crime be alleged separately, but simply says each may be alleged as a separate count. We have previously stated that even when a statute within the Uniform Controlled Substances Act provides various means of violation, “the better practice is to charge the alternative charges in separate counts.” State v. Anthony, 242 Kan. 493, 497, 749 P.2d 37 (1988).
Here, the State failed to mention the statute that covers attempt, K.S.A. 21-3301(a), in the charging document. Attempt was not an offense under the statute cited by the State (K.S.A. 1997 Supp. 65-4159), although that statute does deal with the sentence for an attempt to manufacture the prohibited substances. Nevertheless, attempt to manufacture a controlled substance is a lesser included crime of the manufacture of a controlled substance. See State v. Peterson, 273 Kan. 217, 42 P.3d 137 (2002). Therefore, Martens could be charged in the complaint with violating 65-4159 and subsequently be convicted of the lesser included crime of attempt to manufacture methamphetamine. K.S.A. 21-3107(2).
The problem here, however, is that the district court seemingly convicted Martens of both attempted manufacture and actual manufacture of methamphetamine contrary to K.S.A. 21-3107(2). We therefore reverse Martens’ conviction and remand the matter for a new trial on the issue of whether he was guilty of manufacturing or attempting to manufacture methamphetamine.
By reason of our decision on this issue, the remaining issues are moot.
Davis, J., not participating.
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Standridge, J.:
Bobby D. Edwards was convicted of aggravated robbery. On appeal, he raises several arguments: (1) The State presented insufficient evidence to convict him of aggravated robbery; (2) the district court erred in instructing the jury on aggravated robbery; (3) the district court erred in allowing the State’s expert witness to testify at trial; (4) the district court erred when it limited Edwards’ direct examination of his expert witness; (5) defense counsel provided him with ineffective assistance; and (6) cumulative errors deprived him of a fair trial. For the reasons stated below, we affirm Edwards’ conviction.
Factual Background
During the evening of September 15, 2008, police arrested Edwards and transported him to the hospital after receiving reports of his causing a disturbance. Edwards appeared to be extremely intoxicated. According to tests conducted at the hospital, Edwards had a blood-alcohol concentration of .375. Because Edwards was fighting with and spitting on hospital staff, he was given a 2.5-milligram, intramuscular injection of Haldol—an anti-psychotic medication that can be given to severely intoxicated individuals who are behaving aggressively to calm them down. Edwards was given a second 2.5-milligram injection of Haldol 10 minutes later. After administering the Haldol, hospital staff reported that Edwards calmed down and went to sleep.
At 1:15 a.m. on September 16, hospital staff reported that Edwards tried getting out of his bed, so he was placed in restraints. At 2:30 a.m., staff reported that Edwards was mumbling incoherently at times. At 4:30 a.m., Edwards sat up but still had slurred speech. At 6 a.m., hospital staff reported that Edwards appeared “clinically sober” and, thus, discharged him from the hospital sometime between 6:30 and 7 a.m.
Shortly after 7:30 that morning, Kristie Zenner heard someone knocking on the front door of an apartment she shared with her boyfriend and her 6-year-old son. Zenner s boyfriend had just left for work, so she thought it was him knocking on the door because he had forgotten something. Zenner got out of bed, walked down the stairs to the first floor of the apartment, and opened the front door. Instead of her boyfriend, Zenner saw Edwards standing in front of her wearing hospital scrubs.
Although she did not know his name at the time, Zenner recognized Edwards as someone who lived in the apartment complex. On one prior occasion, Zenner allowed Edwards to use her phone—while standing outside her apartment—to call someone. After completing his call, Edwards returned the phone to Zenner without incident. Thus, Zenner did not think much of it when Edwards asked her that morning if he could use her phone. Zenner agreed but closed her front door before retrieving her phone for Edwards. After grabbing her phone off of her couch, Zenner turned around and saw Edwards standing near her. Zenner gave Edwards the phone and told him he could use it, but he needed to do so outside. Edwards took the phone but put it in the pocket of his scrubs. He then looked down at a coffee table next to him and saw a hammer lying on it. Zenner was in the process of moving and had been using the hammer to remove picture nails from her walls. Edwards picked the hammer up, pushed Zenner into a chair behind her, and swung die hammer at Zenner, hitting her in the head. After hitting her, the hammer fell out of Edwards’ hand, so he began searching around for the hammer while, at the same time, struggling to keep Zenner seated in the chair.
Zenner managed to stand up from the chair, but Edwards, while standing behind her, placed her in a choke hold. Based on previous training she received in martial arts—and 'because she was slick from blood oozing from her head—Zenner was able to slip out of Edwards’ choke hold. Zenner then saw her phone (which apparently had fallen out of Edwards’ pocket during the struggle) lying on the chair. Zenner grabbed the phone, thinking she could quickly dial 911, but Edwards forcibly took the phone away from her before she could do so. Edwards then threw Zenner onto her couch. During her struggle with Edwards on the couch, Zenner yelled out “rape” a couple of times. Edwards responded by saying that he was not going to rape her, that he was just looking for the hammer and that he wanted to take his “evidence” and leave.
At this point, Edwards asked Zenner if she could take him somewhere, but Zenner responded by telling him she could not because she needed medical attention. Edwards then asked Zenner for her keys, but she did not respond to his request. Edwards then said, “[Y]ou can’t even give me your keys to save your life?” In response, Zenner said that she needed to go upstairs to put on some clothes (she was wearing only a t-shirt and underwear), but Edwards did not want her to go upstairs. Edwards also asked Zenner several times if anyone else was in the apartment with her, and she eventually told him that her son was upstairs.
Zenner got herself off of the couch, and Edwards frantically searched the living room area for the hammer, going as far as to lift the couch up and toss it across the room before ultimately finding the hammer in what Zenner described as a vase. Because Edwards was facing the front door—his back toward Zenner— when he found the hammer, Zenner believed that Edwards would simply leave her apartment at that moment. Edwards, however, turned around and swung the hammer at Zenner, again hitting her in the head and causing her to fall into the chair. In response, Zenner kicked Edwards in the groin a couple of times, but the kicks did not incapacitate Edwards. Edwards swung the hammer at Zenner a third time, but she blocked the swing, causing the hammer fall out of Edwards’ hand and into Zenner’s lap. Zenner immediately grabbed the head of the hammer while Edwards reached down and grabbed its handle.
As both of them held onto the hammer, Zenner told Edwards that he could just leave and take the hammer and her phone with him. At first, Edwards was hesitant, but when he heard Zenner’s son ciying upstairs, he told Zenner he wanted to leave. He asked Zenner to let go of the hammer, but Zenner told him she was not going to let go. Edwards implied he might hurt her son if she did not let go of the hammer. Zenner, however, convinced Edwards to walk to the door with her while they both held on to the hammer. She then told Edwards she would let go of the hammer once he was outside. Zenner, while holding onto the hammer, opened up the front door and walked outside with Edwards. Zenner then released her grip of the hammer and quickly went back inside her apartment, shutting die front door behind her and locking it.
After washing off some of the blood that was on her, Zenner went to her son’s bedroom to calm him. Because Edwards had taken her phone, Zenner had to walk through the basement she shared with her neighbor to ask her neighbor to call 911. While Zenner was waiting for the police to arrive, Edwards knocked on her front door and asked if he could come in to retrieve a bag that he had left. Zenner told him no and that he needed to leave because she had called the police. Edwards eventually walked away from the apartment.
Soon thereafter, police arrived and spoke briefly with Zenner about the incident before EMS transported her to the hospital for treatment. Zenner told police that her neighbor had attacked her and pointed out his apartment to them. The police searched Zen-ner’s apartment and found a red plastic bag that contained hospital papers with Edwards’ name on it and a wallet which contained Edwards’ identification and Social Security cards. Officers also searched the apartment that Zenner had identified as Edwards’ apartment but did not find anyone inside. Because the door to the apartment next to Edwards’ apartment was open, police went inside the apartment and found a silver-colored cell phone with blood on it. Officers later determined that the cell phone belonged to Zenner. Thereafter, police showed Zenner a photo lineup, and she identified Edwards as her attacker. Edwards was later arrested in Oklahoma on October 7, 2008.
The State charged Edwards with attempted murder, aggravated robbery, and aggravated burglary. His case proceeded to a jury trial. The theory of defense presented at trial was that Haldol, the drug Edwards was given at the hospital prior to his later attack on Zenner, caused him to suffer from akathisia (a sensation of inner restlessness) which, in turn, caused him not to understand the wrongfulness of his conduct on the morning of September 16, 2008, or be able to conform his conduct to the requirements of the law. Thus, the defense conceded Edwards committed the acts against Zenner but argued he could not be held criminally liable because he was involuntarily intoxicated when he committed the acts. The juiy ultimately found Edwards not guilty of attempted murder and aggravated burglary, but it could not reach a verdict on the aggravated robbery charge. The district court declared a mistrial on the aggravated robbery charge, which resulted in a second trial on that charge. The second trial ended in a mistrial when Zenner, the State’s first witness, testified about a prior bad act involving Edwards in violation of an order in limine.
At the third trial, Zenner testified about her encounter with Edwards. Zenner stated she did not notice anything to indicate that he was under the influence of alcohol or drugs while Edwards was inside her apartment. Specifically, she did not notice him staggering, slurring his speech, or having any trouble communicating with her. She said that his train of thought was coherent and that he did not seem to be in a daze. Finally, she did not notice Edwards shaking or suffering from tremors.
Edwards did not testify but presented the testimony of Dr. Mark Goodman, a clinical psychologist who specialized in psychophar- macology (the study of how mental health medications affect the brain). Dr. Goodman testified that Haldol is an anti-psychotic medication that is generally used to treat psychosis such as schizophrenia. Because the drug can quickly calm down an individual, it can be given intramuscularly to someone with acute alcohol intoxication if that person is angry and acting very aggressively. Dr. Goodman said the typical dosage of Haldol for someone prescribed the drug is 1 to 6 milligrams a day.
Dr. Goodman said that a side effect of taking Haldol is akath-isia—a sensation of inner restlessness that can lead to a person feeling confused, aggressive, and can lead to an increase in homicidal or suicidal behavior. Dr. Goodman said someone could experience alcathisia 8 hours after being administered Haldol and that the side effect could last beyond 12 hours. He said that administering Haldol to someone after the person has consumed alcohol generally causes that person to be sedated but that the combination of alcohol and Haldol could cause aggressive behavior, delirium, and confusion.
Dr. Goodman testified that he interviewed Edwards for 4½ hours and reviewed his medical records from September 15 and 16, 2008, his past treatment records, tire police reports concerning the September 16 incident, and Zenner’s statement to tire police. Based on his interview of Edwards and his review of the documents, Dr. Goodman concluded there was a greater than 50 percent chance that Edwards suffered from alcathisia on the morning of September 16 as a result of being given Haldol several hours earlier at the hospital. Dr. Goodman opined that the alcathisia caused Edwards not to appreciate or understand his actions that morning and caused him to be incapable of conforming his conduct to the requirements of the law. Dr. Goodman based his opinion on Edwards’ having no memory of the September 16 incident and reporting that Haldol had been given to him in the past, causing his jaw to lock up, making him more irritable, and causing him to hallucinate. Furthermore, Dr. Goodman stated that Edwards’ medical records showed that he had been given Haldol in April 1997 and experienced hallucinations, confusion, and anger as a result. Dr. Goodman noted that Edwards’ use of Haldol was dis continued after that experience. Dr. Goodman also noted that Edwards’ behavior during his encounter with Zenner (the aggression he displayed, his nonreaction to being lacked in the groin, the weak neck lock he applied to Zenner, his walking away from the apartment after the altercation, and his return to the apartment in order to retrieve the red plastic bag) indicated to him that Edwards was suffering from akathisia during that time period.
On cross-examination, Dr. Goodman admitted that he was not “a hundred percent sure” whether Edwards would still have had Haldol in his system when he was at Zenner’s apartment. He also conceded that Edwards’ medical records from September 16 indicated he was not suffering any side effects from Haldol and that he was “clinically sober” when he was released from the hospital. Dr. Goodman also acknowledged that Edwards’ previous reaction with Haldol came after being given 10 milligrams of the drug—an amount Dr. Goodman considered as “a high dosage.”
Dr. Timothy Rohrig, a toxicologist and director of the Sedgwick County Regional Forensic Science Center, testified as a rebuttal witness for the State. Dr. Rohrig testified that aggressive behavior has been linked as a side effect of chronic Haldol ingestion, but Dr. Rohrig noted that such occurrences were extremely rare. Dr. Rohrig said that he reviewed medical literature regarding Haldol and did not come across a study reporting a person experiencing akathisia or violent behavior as a result of receiving a single-dose administration of Haldol. Dr. Rohrig also said that a person who was not chronically using Haldol but only given a single dose of the drug should experience akathisia—if at all—shortly after being administered the drug. Dr. Rohrig said that it was highly unlikely that a person would start to experience akathisia several hours after receiving the drug due to the concentration of Haldol in the person’s system decreasing over time. Finally, Dr. Rohrig said that an acute, one-time administration of Haldol would not cause “mental clouding” in a patient. He said that such a side effect would only be experienced by a very small number of patients who have taken Haldol for several weeks or months.
The district court instructed the jury that in order to find Edwards guilty of aggravated robbery, tire State had to prove the following elements:
‘T. That [Edwards] intentionally took property from the person or presence of Kristie Zenner;
“2. That the taking was by threat of bodily harm or force;
“3. That [Edwards] was armed with a dangerous weapon; and
“4. That this act occurred on or about tire 16th day of September, 2008, in Sedgwick County, Kansas.
“An object can be a dangerous weapon if intended by the user to convince the victim that it is a dangerous weapon and which the victim reasonably believed to be a dangerous weapon.”
The district court also instructed the juiy on the lesser included offense of robbery and instructed tire jury that in order to find Edwards guilty of aggravated robbery or robbery, it had to agree on what underlying act constituted the crime.
During its closing argument, the State argued that Edwards committed aggravated robbery when he used force to take Zenner’s phone away from her. The State also argued that the hammer Edwards used to hit Zenner constituted a dangerous weapon for aggravated robbery purposes. The jury ultimately found Edwards guilty of aggravated robbery. The district court sentenced Edwards to 247 months’ imprisonment. Edwards filed a timely notice of appeal.
Analysis
I. Did the State Present Sufficient Evidence to Support the Jury’s Decision to Convict Edwards of Aggravated Robbery?
When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, taken in the light most favorable to the State, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. In making this determination, an appellate court does not-reweigh evidence, assess the credibility of witnesses, or resolve conflicting evidence. State v. McClaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011). To the extent that Edwards’ claim requires interpretation of Kansas’ robbery and aggravated robbery statutes (K.S.A. 21-3426 and K.S.A. 21-3427, respectively), this court applies an unlimited standard of review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
Edwards raises several arguments to support his claim that the State presented insufficient evidence to convict him of aggravated robbery. We address each of these arguments in turn.
A. Use of Force in Taking the Cell Phone from Zenner
Edwards contends the evidence presented at trial established he took Zenner s phone away from her prior to any show of force and, although such evidence would support a theft conviction, it is insufficient to support a conviction of robbery and, in turn, aggravated robbery.
Robbery is “the taking of property from the person or presence of another by force or by threat of bodily harm to any person.” K.S.A. 21-3426. Aggravated robbery is a robbery “committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any.person in the course of such robbery.” K.S.A. 21-3427. Relevant to Edwards’ argument here, theft is defined as obtaining or exerting unauthorized control over property, done with the intent to deprive the owner permanently of the possession, use, or benefit of the owner’s property. K.S.A. 21-3701(a)(1).
Our Supreme Court has held that in order for a taking of property to constitute a robbery as opposed to a theft, the perpetrator’s use of force against the victim must either precede or be contemporaneous with the perpetrator’s taking of property from the victim. State v. Bateson, 266 Kan. 238, Syl. ¶ 1, 970 P.2d 1000 (1998). If the taking of the property is completed by the time the perpetrator used force, then no robbery is committed; instead, a theft may have occurred. See Bateson, 266 Kan. 238, Syl. ¶¶ 1-3. Thus, we must review all the evidence, in the light most favorable to the State, to determine whether there was sufficient evidence from which a rational factfinder could have found Edwards’ use of force against Zenner occurred prior to, or contemporaneous with, taking Zenner’s cell phone.
Zenner testified at trial that after she retrieved her phone from the couch, she turned to walk back to the front door and saw that Edwards had'already come into her apartment and was standing near her. Zenner gave Edwards tire phone and told him he could use it but needed to do so outside. Edwards took the phone and put it in the pocket of his scrubs. He then picked up a hammer lying on a coffee table, pushed Zenner into a chair that was behind her, and swung the hammer at Zenner, hitting her in the head. After hitting her, the hammer fell out of Edwards’ hand, so he began searching around for the hammer while, at the same time, struggling to keep Zenner seated in the chair. Eventually, Zenner was able to stand up from the chair, but Edwards got behind her and placed her in a choke hold. Zenner, however, was able to slip out of Edwards’ choke hold. After getting out of the choke hold, Zenner saw her phone lying on a chair in her living room. The phone apparently fell out of Edwards’ pocket during his struggle with Zenner. According to Zenner’s testimony at trial, she grabbed the phone and tried to quickly dial 911, but Edwards forcibly took the phone away from her before she could do so. Edwards then threw Zenner onto her couch and continued to struggle with her.
When this evidence is viewed in tire light most favorable to the State, we conclude that Edwards took possession of the phone the first time without having to use force against Zenner. But after Edwards hit Zenner in the head with a hammer and placed her in a choke hold, Edwards lost possession of the phone because it fell out of his pocket and onto a chair in Zenner’s living room. Zenner picked up the phone off the chair, regaining possession of it, but Edwards forcibly removed the phone from her possession a second time. Thus, the evidence presented at trial established that Edwards used force against Zenner before and during his act of taking the phone away from her this second time. Accordingly, we find sufficient evidence to support the jury’s finding that Edwards used force prior to or contemporaneous with the taking of property from Zenner.
B. Aggravated Robbery Incidental to Another Crime
Edwards contends he took the phone from Zenner for the sole purpose of facilitating his getaway after battering her. Relying on State v. Montgomery, 26 Kan. App. 2d 346, 988 P.2d 258 (1999), Edwards argues a taking that does nothing more than facilitate the commission of another crime is insufficient to support a conviction of robbery and, in turn, aggravated robbery.
In Montgomery, the defendant accosted a jogger and attempted to rape her. During the attempted rape, the woman’s glasses came off several times, but each time she put her glasses back on. When the attack ended, the defendant grabbed the woman’s glasses and left. The glasses were later found near the area where the woman was attacked. The State charged the defendant with attempted rape and aggravated robbery, and he was convicted of both counts.
On appeal, the defendant claimed there was insufficient evidence to support his conviction for aggravated robbery. In support of his claim, the defendant argued the fact that he left the victim’s glasses near the scene of the crime establishes that the act of taking property from the victim—a necessary element to the crime of robbery and aggravated robbery—was never completed. The panel rejected the defendant’s argument, finding the evidence established that the defendant completed the act of removing the victim’s glasses from her possession and thus the element of a taking within the robbery statutes was satisfied. In the process of considering defendant’s claim of insufficient evidence, however, the panel found that the only reason defendant took the woman’s glasses was “to facilitate his crime of attempted rape and to make it more convenient, as [the victim] might be less able to identify him.” 26 Kan. App. 2d at 350. Based on this particular factual finding, the panel concluded it was necessary to decide whether a taking that does nothing more than facilitate the commission of another crime is sufficient to support a conviction for robbeiy and aggravated robbery. 26 Kan. App. 2d at 348-49. Thus, the panel set out to determine whether the robbery statutes require evidence that a defendant took property by force or threat of bodily harm and evidence that the defendant did so intending to permanently deprive the victim of such property.
The panel began its analysis by acknowledging that there is express language in the theft statute that requires a defendant to have intended to permanently deprive the victim of his or her property in order to commit tire crime but there is no such language in the robbery statutes. The panel found this troubling:
“[I]t is incongruous that theft—which in this case would be a class A nonperson misdemeanor—requires an intent to permanently deprive the victim of her prop erty, but robbeiy—a [severity] level 5 person felony—does not. More confusing, still, is the fact that theft—which contains an explicit intent requirement—has been defined as a lesser degree of robbery. State v. Long, 234 Kan. 580, 592, 675 P.2d 832 (1984), disapproved in part on other grounds [State v. Keeler,] 238 Kan. 356, 365, 710 P.2d 1279 (1985). Cf. PIK Crim. 3d §§ 56.30 and 59.01. How can a lesser crime have & greater intent requirement?” Montgomery, 26 Kan. App. 2d at 349-50.
Citing Supreme Court precedent, however, thé panel ultimately determined that—despite the lack of express language—the rob-beiy statutes actually did require a defendant to have taken property with the intention of permanently depriving the owner of it in order to commit the crime. Montgomery, 26 Kan. App. 2d at 349-50; see State v. Adam, 257 Kan. 693, 697-700, 896 P.2d 1022 (1995). In Adam, our Supreme Court reversed a defendant’s conviction for aggravated robbeiy because a supplemental jury instruction on aggravated robbeiy omitted the essential element that a defendant, in order to be found guilty, must have the general intent to take the property at issue. 257 Kan. at 699-700. The Montgomery panel viewed the Adam decision as reading “an intent requirement into K.S.A. 21-3426” and, consequently, as supporting the panel’s conclusion that an intent to permanently deprive the owner of property is an essential element to committing the crimes of robbery and aggravated robbery. Montgomery, 26 Kan. App. 2d at 349-50.
Applying its construction of die robbeiy and aggravated robbery statutes to the facts of the case, the Montgomery panel stated:
“It is clear that the removal of [the victim’s] glasses was incidental to the commission of the attempted rape. [The defendant] removed—and then discarded— [the victim’s] glasses. Clearly, he did so to facilitate his crime of attempted rape and to make it more convenient, as [the victim] might be less able to identify him. There is no evidence in the record that [the defendant] 'removed the glasses with an intent to keep them. All of the evidence leads to the conclusion that he took the glasses to facilitate the crime of attempted rape but not to commit the crime of robbeiy. And without a robbery, there can be no aggravated robbeiy.
“Under the ruling in Adam, the taldng.of [the victim’s] glasses was incidental to the crime of attempted-rape and had no significance independent of that crim.e. The trial court erred in denying [the defendant’s] motion for acquittal of the aggravated robbery charge.” (Emphasis added.) Montgomery, 26 Kan. App. 2d at 350.
For the reasons stated below, we respectfully disagree with the decision of the Montgomery panel that intent to permanently deprive the owner of property is an essential element to committing the crimes of robbery and aggravated robbery.
We begin our analysis with the well-known rule of statutory construction:
“When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readihj found in it. Where there is no ambiguity, the court need not resort to statutory construction. Only if the statute’s language or text is unclear or ambiguous does the court use canons of construction or legislative history or other background considerations to construe the legislature’s intent. [Citation omitted.]” (Emphasis added.) State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010).
The language of K.S.A. 21-3426 and K.S.A. 21-3427 is plain and unambiguous. K.S.A. 21-3426 defines robbery as “the taking of property from the person or presence of another by force or by threat of bodily harm to any person.” K.S.A. 21-3427 defines aggravated robbery as “a robbery, as defined in K.S.A. 21-3426 and amendments thereto, committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery.” Kansas appellate courts long have held both robbery and aggravated robbery to be general intent crimes, which only require proof that the defendant engaged in intentional conduct. See State v. McDaniel & Owens, 228 Kan. 172, 177, 612 P.2d 1231 (1980) (“Aggravated robbery is not a specific intent crime, it requires only general criminal intent.”); State v. Esher, 22 Kan. App. 2d 779, 783-84, 922 P.2d 1123 (robbery and aggravated robbery are general intent crimes), rev. denied 260 Kan. 997 (1996), overruled on other grounds State v. Schoonover, 281 Kan. 453, 133 P.3d 48.(2006); see also K.S.A. 21-3201(a) (“Except as otherwise provided, a criminal intent is an essential element of every crime defined by this code. Criminal intent may be established by proof that the conduct of the accused person was intentional or reckless. Proof of intentional conduct shall be required to establish criminal intent, unless the statute defining the crime expressly provides that the prohibited act is criminal if done in a reckless manner.”). Thus, the Montgomery panel’s decision to in corporate a specific intent to permanently deprive the owner of property as an essential element of robbery and aggravated robbery is contrary to the plain and unambiguous language used by the legislature in those statutes.
Moreover, we find the Adam opinion provides no support for the Montgomery panel’s decision to read a specific intent element into K.S.A. 21-3426 and K.S.A. 21-3427. At most, the Adam court recognized that aggravated robbery is a general intent crime and that a jury instruction suggesting that the taking of property does not need to be an intentional act constitutes reversible error. Adam, 257 Kan. at 697-700. There simply is no language in the Adam opinion to suggest that a specific intent element should be read into the robbeiy and aggravated robbery statutes.
Lastly, and long before the panel decided Montgomery, our Supreme Court in State v. Thompson, 221 Kan. 165, Syl. ¶ 7, 558 P.2d 1079 (1976), rejected the notion that a specific intent element should be read into the robbeiy and aggravated robbery statutes. In Thompson, the defendant argued the district court should have instructed the jury that in order to find him guilty of aggravated robbery, it had to find that he specifically intended to deprive the owner permanently of the property taken in the robbeiy. The Thompson court disagreed, concluding that neither K.S.A. 21-3426 nor K.S.A. 21-3427 included such an element. Thompson, 221 Kan. at 173-75. The court stated:
“There is no specific intent required beyond the general intent to commit the act of forcible taking. All that is required is an intentional taking of property from the person or presence of another by force or threat of bodily harm. It has long been the law of Kansas that when the commission of an act is made a crime by statute, without any express reference to any intent, the only criminal intent necessarily involved in the commission of the offense is the intent to commit the interdicted act. [Citation omitted.]
“At common law the crime of robbeiy as forcible larceny required an animo furandi, a specific intent to deprive the owner of the property taken, not temporarily, but permanently. Our former robbery statutes (K.S.A. 21-527 and 21-528 [Corrick 1964]) required a ‘felonious’ taking as an essential element of rob-beiy. The term ‘felonious’ was defined as requiring an intent to deprive the owner not only temporarily but permanently of his property, without color of right or excuse for the act, and to convert it to the taker’s use without the consent of the owner. [Citations omitted.]
“In enacting K.S.A. 21-3426 and 21-3427 (Weeks 1974) the legislature eliminated the requirement of a ‘felonious taking’ and required only a ‘taking’ of the property by threat or force. The language of the new statutes broadened the statutory crime of robbery to cover any taking of property from the person or presence of another by threat of bodily harm or by force. The requirement of a specific intent to deprive the owner permanently of his property toas eliminated. It is sufficient under the present statutes if the taking is done with the general intent to commit the act of taking the properly by threat of bodily harm or by force. ... It follows that the trial court did not err in failing to instruct the jury that a specific intent to deprive the owner permanently of the property taken is an essential element of the crime of-robbery.” (Emphasis added.) Thompson, 221 Kan. at 174-75.
See also State v. Poulos & Perez, 230 Kan. 512, 515, 639 P.2d 477 (1982) (The specific intent to permanently deprive the owner of his or her property is not an element of robbery or aggravated robbery.).
Based on the language used in the statutes and our Supreme Court’s holding in Thompson, we hold that, regardless of the purpose behind the taking, any taking of property from the person or presence of another by force or by threat of bodily harm to any person is sufficient to constitute a robbery under K.S.A. 21-3426. If the perpetrator is armed with a dangerous weapon or inflicts bodily harm upon any person during the course of such a taking, the perpetrator is guilty of aggravated robbery under K.S.A. 21-3427. Likewise, a defendant who takes property by force or by threat of bodily harm for the purpose of facilitating the commission of another crime is guilty of robbery. In holding that a defendant need not act with a specific intent to keep the property taken in order to commit the crime of robbery or aggravated robbery, we acknowledge our decision directly conflicts with the decision reached in Montgomery. See Urban, 291 Kan. at 223 (Kansas Court of Appeals is not bound by prior rulings of another panel.). “While we must carefully consider each precedent cited to us, we also must uphold our duty to correctly determine the law in each case that comes before us. In doing so, we sometimes find that we must respectfully disagree with the opinion of another panel.” Uhlmann v. Richardson, 48 Kan. App. 2d 1, 13, 287 P.3d 287 (2012).
Applying the law to the facts here, we find no merit to Edwards’ claim of insufficient evidence based on his assertion that he took the property from Zenner for the sole purpose of facilitating another crime; i.e., battering Zenner. The evidence presented at trial to establish that he took property from Zenner by force while armed with a dangerous weapon was sufficient to support his conviction for aggravated robbery.
C. Alternative Means of Committing Robbery
The district court instructed the jury it could find Edwards guilty of aggravated robbery if it found that he, among other things, took property from the person or presence of Zenner. Edwards contends the phrase “person or presence” establishes alternative means of committing aggravated robbery and that the State presented no evidence to establish that he took property from Zenner’s person. As such, he argues his conviction for aggravated robbery must be reversed under State v. Wright, 290 Kan. 194, 224 P.3d 1159 (2010), based on a lack of evidence to support both of these alternative means.
The jury in a criminal case is required to arrive at a unanimous verdict. K.S.A. 22-3421. When the jury is presented with alternative means by which the crime charged can be committed, it is possible for some jurors to arrive at one alternative means to support a conviction and other jurors to settle on another alternative means. Notably, our Supreme Court has held that a defendant’s right to a unanimous verdict is not undermined when this happens so long as there was sufficient evidence presented at trial to support each alternative means for committing the crime. See Wright, 290 Kan. 194, Syl. ¶ 2; State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994). If there is inadequate evidence to support a particular means for committing the crime, the conviction must be reversed. See Wright, 290 Kan. at 203.
Before addressing whether there was sufficient evidence to prove each of the alternative means alleged by Edwards, however, we first must determine whether the aggravated robbery statute truly presents alternative means by which the crime can be committed. If aggravated robbery cannot be committed in more than one way, jury unanimity is not at issue and an alternative means analysis is inapplicable. The question of whether alternatives within a statute define alternative means is a question of law subject to de novo review. See State v. Brown, 295 Kan. 181, 193-94, 284 P.3d 977 (2012).
Our Supreme Court recently clarified the test for identifying whether a statute contains alternative means. The court first noted that “ ‘[t]he mere use of a disjunctive in a statute does not an alternative means crime make/ ” Brown, 284 P.3d at 988 (quoting State v. Peterson, 168 Wash. 2d 763, 770, 230 P.3d 588 [2010]). Instead, courts must look primarily to legislative intent to determine whether statutory alternatives are alternative means. The court summarized the proper analysis as follows:
“[I]n determining if the legislature intended to state alternative means of committing a crime, a court must analyze whether the legislature listed two or more alternative distinct, material elements of a crime—that is, separate or distinct mens rea, actus reus, and, in some statutes, causation elements. Or, did the legislature list options within a means, that is, options that merely describe a material element or describe a factual circumstance that would prove the element? The listing of alternative distinct, material elements, when incorporated into an elements instruction, creates an alternative means issue demanding super-sufficiency of the evidence. Often this intent can be discerned from the structure of the statute. On the other hand, the legislature generally does not intend to create alternative means when it merely describes a material element or a factual circumstance that would prove the crime. Such descriptions are secondary matters—options within a means—that do not, even if included in a jury instruction raise a sufficiency issue that requires a court to examine whether the option is supported by evidence.” Brown, 284 P.3d at 991-92.
K.S.A. 21-3426 defines robbeiy as the taking of property from the person or presence of another, which Edwards argues .creates alternative means of committing robbery. Edwards concedes that the State presented evidence from which-the jury could find that he took property from the presence of Zenner but claims there was no evidence from which the juiy could have found he-took the property from her person.
Our court rejected Edwards’ argument in State v. Boyd, 46 Kan. App. 2d 945, Syl. ¶ 3, 268 P.3d 1210 (2011), petition for review filed January 23, 2012; cross-petition for review filed February 6, 2012. The Boyd court held that “taldng property from the person of the victim and taldng property from the presence of the victim do not constitute alternative means of committing aggravated robbery” under K.S.A. 21-3427 because the robbery statutes would criminalize the same sort of conduct had the term “person” been omitted:
“The essence of the crime is forcibly taldng properly when a person is present. The term ‘from the person or the presence’ of the victim describes the proximity of the properly and the individual. It does so with phraseology that overlaps. Taldng property from the presence of the victim (who need not be the owner of whatever the perpetrator seizes) describes an area in the general vicinity of the victim. Taldng property from the person of the victim refers to the immediate environs of the body such as a pocket, a purse, or the hands. Thus, a taldng ‘from the person’ is actually encompassed within a taldng ‘from the presence’ of the victim. The robbery and aggravated robbery statutes would criminalize the same range of conduct even if the phrase ‘the person’ had been omitted from the definitions of those crimes. Accordingly, taldng property from the person of the victim and taking property from the presence of the victim do not constitute alternative means of committing aggravated robbery.” 46 Kan. App. 2d at 950.
The legal analysis in Boyd is well reasoned, persuasive, and has been adopted by other panels of this court. See State v. Myers, No. 105,252, 2012 WL 2476978, at *2-3 (Kan. App. 2012) (unpublished opinion), petition for review filed July 23, 2012; State v. Delacruz, No. 106,082, 2012 WL 1352865, at *4 (Kan. App. 2012) (unpublished opinion), petition for review filed May 10, 2012. Although decided prior to Brown, the analysis in Boyd is entirely consistent with that set forth in Brown. Specifically, a determination regarding whether the crime is committed is not a function of how close the property was to the victim when the taldng occurred. Rather, the essence of the crime is forcibly taldng property when a person is present, regardless of whether the property is found on or near the victim’s person.
We conclude that the taldng of property from the person or presence of another establishes a single means of committing robbery. Accordingly, there is no merit to Edwards’ claim that he was deprived of his statutory right to a unanimous verdict on the aggravated robbery charge. As noted above, the evidence presented at trial shows that Edwards forcibly took Zenner’s phone away from her after she regained possession of it. Thus, sufficient evidence supports the finding that Edwards took property from Zenner s person or presence.
II. Did the District Court Err in Instructing the Jury on Aggravated Robbery?
In this claim of error, Edwards argues that, based on Montgomery, the district court should have instructed the jury that in order for the taking of property from Zenner to constitute an aggravated robbeiy, the taking could not be incidental to another crime. Edwards also argues that the district court should have instructed the jury that the use or threat to use force against Zenner had to precede or be contemporaneous with the taking of property from her in order for the taking to constitute an aggravated robbery.
A. The Incidental Taking Instruction
The district court denied Edwards’ request that the jury be instructed that in order to constitute robbery, the taking of property could not be incidental to another crime. Thus, this court applies the following standard of review:
“When the trial court refuses to give a requested instruction, an appellate court must view the evidence in a light most favorable to the party requesting the instruction. A defendant is entitled to an instruction on his or her theory of the case, even if the evidence of the theory is slight and supported only by the defendant’s own testimony. However, an appellate court cannot consider the requested instruction in isolation. Rather, the court must consider all of the instructions together as a whole. If the instructions as a whole properly and fairly state the law as applied to the facts of the case, and the jury could not reasonably be mislead by them, the instructions are not reversible error even if they are in some way erroneous. [Citation omitted.]” State v. Jackson, 280 Kan. 541, 549-50, 124 P.3d 460 (2005).
As already noted above, our Supreme Court in Thompson stated that any intentional taking of property from the person or presence of another by threat of bodily harm or by force constitutes a robbery. Thus, in order for a defendant to be found guilty of either robbery or aggravated robbeiy, there is no requirement that he or she must have specifically intended to keep the property taken from the victim. Thompson, 221 Kan. at 173-75. Based on Thomp son, die district court did not err when it denied Edwards’ request to instruct the jury pursuant to Montgomery.
B. Preceding or Contemporaneous Use or Threat to Use Force Instruction
Edwards did not ask the district court to instruct the jury that his use or threat to use force against Zenner had to precede or be contemporaneous with his act of taking property from Zenner. Accordingly, this court applies the following standard of review:
“An appellate court reviewing a district court’s giving or failure to give a particular instruction applies a clearly erroneous standard where a party neither suggested an instruction nor objected to its omission. See K.S.A. 22-3414(3). An instruction is clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred. [Citation omitted.]” State v. Martinez, 288 Kan. 443, 451-52, 204 P.3d 601 (2009).
We will assume, without deciding, for purposes of our discussion that the district court erred in failing to instruct the jury that the use or threat to use force against Zenner had to precede or be contemporaneous with Edwards’ act of taking property from Zen-ner. Given the facts presented at trial and the applicable standard of review, however, we find any such error to be harmless. The evidence presented at trial established that Edwards initially took possession of the phone without having to use force against Zenner. But sometime between hitting Zenner in the head with a hammer and placing her in a choke hold, Edwards lost possession of the phone because it fell out of his pocket and onto a chair in Zenner’s living room. Zenner picked up the phone from off the chair, regaining possession of it, but Edwards (according to Zenner’s testimony) then forcibly removed the phone from her possession. Thus, the evidence presented at trial established that Edwards used force against Zenner before and during his act of taking the phone away from her the second time. Given this evidence presented, we find no real possibility that the jury would have rendered a different verdict if the requested instruction had been provided to the jury.
III. Did the District Court Err in Allowing the State’s Expert to Testify at Trial?
Edwards argues that the district court erred when it allowed the State’s expert witness, Dr. Rohrig, to testify as a rebuttal witness at trial. At trial, Edwards objected to Dr. Rohrig testifying because the State did not disclose information about Dr. Rohrig to the defense prior to trial pursuant to K.S.A. 2008 Supp. 60-226. Relevant here, the State responded by arguing it was under no obligation to provide discovery to the defense concerning Dr. Rohrig or the nature of his testimony because he was being called as a rebuttal witness and did not perform an evaluation or produce a report concerning his testimony prior to trial. The district court agreed with the State’s argument and overruled Edwards’ objection, allowing Dr. Rohrig to testify at trial.
As noted by the State, Dr. Rohrig did not testify in the State’s case-in-chief but instead testified at trial as a rebuttal witness. With the exception of witnesses called by the State to rebut a defendant’s alibi witnesses, see K.S.A. 22-3218, prosecuting attorneys are not required to disclose or endorse names of rebuttal witnesses. See State v. Drach, 268 Kan. 636, 646, 1 P.3d 864 (2000); State v. Trotter, 245 Kan. 657, 660, 783 P.2d 1271 (1989); State v. Hunter, 241 Kan. 629, 638, 740 P.2d 559 (1987); Talley v. State, 222 Kan. 289, 292, 564 P.2d 504 (1977). This rule makes sense because the purpose of a rebuttal witness is to refute testimony given in the opposing party’s case-in-chief, and it. would be hard to list rebuttal witnesses in advance not knowing exactly what detailed testimony may be elicited during the case-in-chief. For this reason, we find the State was under no obligation to disclose Dr. Rohrig as an expert because he testified as a rebuttal witness at trial. Accordingly, the district court did not err when it permitted Dr. Rohrig to testify as an expert.
IV. Did the District Court Err in Limiting the Testimony of Edwards’ Expert?
Next, Edwards argues that the district court erred when it did not allow him to question his own expert witness, Dr. Goodman, about whether Edwards suffered from a mental illness and whether the hospital staff should have held Edwards in observation for 48 to 72 hours instead of releasing him on the morning of September 16, 2008. Edwards claims Dr. Goodman’s testimony on these two issues was relevant because it would have given the jury a full picture of how Haldol affected his mental state on the morning of September 16.
“Tlie first step when reviewing the exclusion of evidence is to determine whether the evidence is relevant. K.S.A. 60-401(b) defines relevant evidence as ‘evidence having any tendency in reason to prove any material fact.’ [Citation omitted.] This definition encompasses two components: whether the evidence is probative and whether it is material. [Citations omitted.] Probative evidence is evidence that ‘ “furnishes, establishes or contributes toward proof.” ’ [Citation omitted.] It is reviewed under an abuse of discretion standard. [Citation omitted.] Material evidence goes to a fact at issue that is significant under tire substantive law of the case. [Citation omitted.] The determination whether evidence is material is reviewed under a de novo standard. [Citation omitted.]” State v. Garza, 290 Kan. 1021, 1027, 236 P.3d 501 (2010).
A. Factual and Procedural Background Relevant to this Claim
As set forth above, Edwards’ defense theoiy at trial was involuntary intoxication. Specifically, he claimed that during his altercation with Zenner on the morning of September 16, he was suffering from akathisia as a result of being given Haldol the previous night at the hospital. Edwards maintained that the akathisia caused him to not understand the wrongfulness of his conduct and rendered him incapable of conforming his conduct to the requirements of the law. K.S.A. 21-3208(1) describes the defense of involuntary intoxication:
“The fact that a person charged with a crime was in an intoxicated condition at the time the alleged crime was committed is a defense only if such condition was involuntarily produced and rendered such person substantially incapable of knowing or understanding the wrongfulness of his [or her] conduct and of conforming his [or her] conduct to the requirements of law.”
Before Edwards’ first trial, the district court ruled that Edwards could not elicit testimony from Dr. Goodman that Edwards suffered from a mental illness or that hospital staff should have kept Edwards under observation instead of discharging him on the morning of September 16. Specifically, the district judge stated:
“Before we get to opening statement, there’s some issues that we need to make a record on. The issue has come up on two subjects: One is tire degree to which evidence of Mr. Edwards’ bipolar condition-or other mental health issues can be admitted or mentioned to the jury; the second is die statement found in Dr. Goodman’s report having to do with tire practice of hospitals of keeping individuals, who have been administered Haldol, under observations for 48 to 72 hours. Let me take up the first issue on the mental health and mental illness. Dr. Goodman states in his report that Mr. Edwards has a severe mental illness. And he references in his primary report that, in his opinion, his diagnostic impression is that Mr. Edwards sufferers from a bipolar disorder, a psychotic disorder, and a polysubstance dependence. He gives an Axis-II diagnosis of a paranoid personality disorder. It seems to me that die defense that’s been raised in this case is one of intoxication, and that defense is governed by statute, specifically K.S.A. 21-3208. [K.S.A.] 21-3208 contemplates a defense in certain circumstances where an individual is intoxicated to the point where he is substantially incapable of knowing or understanding the wrongfulness of his conduct and conforming his conduct to the requirements of the law. So the question is whether or not the alcohol and the Haldol that was given to Mr. Edwards rendered him substantially incapable of knowing or understanding the wrongfulness of his conduct. The report prepared by Dr. Goodman does not allege that Mr. Edwards was suffering from a mental defect that would give rise to the defense of insanity or the defense of lack of mental state as set forth in K.S.A. 22-3219 and [K.S.A.] 22-3220. And because that’s not what Dr. Goodman is going to say, then it seems to me the testimony of Dr. Goodman should be limited to the defense which has been asserted, which is one of intoxication. We take Mr. Edwards as we find him with his current physical and mental state. And the question for the jury is given that current physical and mental state, was the ingestion of alcohol to the degree to which Mr. Edwards has—has shown by the evidence to have consumed alcohol on the times in question, and was the administration of Haldol such to render him substantially incapable of knowing or understanding tire wrongfulness of his conduct, and rendered him incapable of conforming his conduct to the requirements of the law. I don’t want the juiy confused about that defense, and so I’m ruling that Dr. Goodman should confine his testimony to what he knows about the effects of Haldol and what he knows about tire effects of alcohol, and then he can—he can testify as to his knowledge of the effects of those intoxicants on somebody with Mr. Edwards’ known physical and mental condition. And then beyond that, I don’t want Dr. Goodman testifying as to what that physical and mental condition is, because I don’t want the jury deliberating on a defense that is not presented, and I don’t want tire jury confusing the mental defect defense found in K.S.A. 22-3219 and [K.S.A. 22-32]20 with the defense that’s asserted under K.S.A. 21-3208. Similarly, Dr. Goodman’s opinion that the hospital should have kept Mr. Edwards under observation for 48 to 72 hours, it seems to me leads tire jury down a trail that doesn’t lead to anywhere. What’s important under the defense and tire statute is what was Mr. Edwards’ mental state after having consumed alcohol and after having been administered Haldol at tire time that these crimes were alleged to have occurred, and whether the hospital should have kept him under observation or not is—-is irrelevant.”
The district court judge who presided over Edwards’ first trial did not preside over his second trial (which ended in a mistrial) or his third and final trial. At the third trial, the district court reaffirmed the limitations previously imposed on Dr. Goodman’s testimony. Defense counsel objected to this ruling.
At trial, Dr. Goodman testified that he interviewed Edwards for 4½ hours and reviewed his medical records from September 15 and 16, 2008, his past treatment records, the police reports concerning the September 16 incident, and Zenner’s statement to the police. Based on his interview of Edwards and his review of the documents, Dr. Goodman concluded there was a greater than 50 percent chance that Edwards suffered from akathisia on the morning of September 16 as a result of being given Haldol several hours earlier at the hospital. Dr. Goodman opined that the akathisia caused Edwards not to appreciate or understand his actions that morning and incapable of conforming his conduct to the requirements of the law. Dr. Goodman stated that his opinion was based on Edwards having no memoiy of the September 16 incident and reporting that he had been given Haldol in the past which caused his jaw to lock up, made him more irritable, and caused him to hallucinate. Furthermore, Dr. Goodman stated that Edwards’ medical records showed that he had been given Haldol in April 1997 and experienced hallucinations, confusion, and anger as a result. Dr. Goodman noted that Edwards’ use of Haldol was discontinued after that experience. Dr. Goodman also stated that Edwards’ behavior during his encounter with Zenner (the aggression he displayed, his nonreaction to being kicked in the groin, the weak neck lock he applied to Zenner, his walking away from the apartment after the altercation, and his return to the apartment in order to retrieve the red plastic bag) indicated that Edwards was suffering from akathisia during that time period.
B. Analysis
Edwards argues that whether he suffered from a mental illness and whether the hospital staff should have held him in observation for 48 to 72 hours instead of discharging him on the morning of September 16 constituted relevant evidence because it would have established how Haldol affected his mental state on September 16. We agree that the effect Haldol had on Edwards’ mental state on September 16 was a material issue at trial, given the fact that Edwards raised an involuntary intoxication defense based on hospital staff administering Haldol to him the previous night. See K.S.A. 21-3208(1) (Intoxication is a defense to a crime “if such condition was involuntarily produced and rendered such person substantially incapable of knowing or understanding the wrongfulness of his [or her] conduct and of conforming his [or her] conduct to the requirements of law.”).
Given the record before us, however, it is unlikely that evidence of Edwards’ mental illness would have been probative to the issue of how Haldol affected his mental state on September 16. If there had been evidence presented to establish that people suffering from a certain type of mental illness were particularly susceptible to suffering from akathisia (which, in turn, rendered them involuntarily intoxicated) as a result of being administered Haldol, then evidence of Edwards suffering from the same type of mental illness would have been probative to establishing what his mental state was on September 16 as a result of being given Haldol. This is especially true given the fact that Dr. Rohrig’s rebuttal testimony indicated that akathisia—as a side effect of Haldol-—was extremely rare in the general population. Edwards, however, does not claim in his brief—and the record on appeal does not show-—that he ever proffered evidence showing that he suffered from a mental illness that made him particularly susceptible to suffering from ak-athisia as a result of taking Haldol. Instead, it appears that Edwards merely wanted Dr. Goodman to testily drat Edwards, in addition to being given Haldol, also suffered from a mental illness. Such testimony would not constitute probative evidence establishing his mental state on September 16 as a result of being administered Haldol. Accordingly, the district court did not abuse its discretion in preventing Dr. Goodman from testifying about Edwards’ mental illness. Furthermore, it appears that Edwards was not prejudiced by the district court’s decision given the fact that Dr. Goodman, without mentioning Edwai'ds’ mental illness, was able to testify at trial that Edwards was involuntarily intoxicated on the morning of September 16 as a result of being given Haldol the previous night.
With regard to Dr. Goodman’s testimony stating that the hospital should have held Edwards in observation for 48 to 72 hours instead of discharging him the morning of September 16, Edwards argues this evidence also was probative to the issue of Haldol’s effect on him. But evidence that the hospital staff should have kept Edwards for observation instead of discharging him would not have aided the jury in deciding the central issue of the case: whether Haldol rendered Edwards substantially incapable of knowing or understanding the wrongfulness of his conduct and of conforming his conduct to the requirements of law when he encountered Zen-ner on September 16. The evidence does nothing to help the jury understand Edwards’ actual mental state on September 16 as a result of being administered Haldol. Thus, the district court did not abuse its discretion in preventing Goodman from testifying about whether the hospital should have kept Edwards in observation.
V. Did Defense Counsel Provide Ineffective Assistance of Counsel?
Next, Edwards argues that his attorney, Blake Cooper, committed numerous errors at trial which constituted ineffective assistance of counsel: (1) Cooper failed to have Edwards’ sister, Amber, testify at trial so she could contradict Detective David Crump’s statement at trial that he never contacted Edwards’ family during his investigation of the case; (2) Cooper failed to have Edwards’ mother, Linda, testify at trial about a statement Crump made to her that would have supported an involuntary intoxication defense; (3) Cooper failed to interview Axell Lopez Lara, a neighbor of the victim; (4) Cooper should have asked Dr. Rohrig whether hospital staff erred when they administered Haldol to Edwards due to him hav ing alcohol in his system and having low blood potassium; and (5) Cooper should have questioned Zenner about bruises on her arm and investigated her phone records.
Generally, claims of ineffective assistance of counsel are not appropriate on direct appeal. Such claims usually are raised in the context of a postconviction motion filed with the district court so that an evidentiary hearing can be held to resolve any dispute in material fact. This court can consider such a claim on direct appeal, however, when the record is sufficient to consider tire claim. See State v. Paredes, 34 Kan. App. 2d 346, 348-49, 118 P.3d 708, rev. denied 280 Kan. 989 (2005).
In this case, the district court held a preliminary hearing on Edwards’ pro se motion claiming that he received ineffective assistance from Cooper. At this hearing, Edwards was allowed to testify about all the reasons he believed Cooper provided ineffective assistance of counsel to him. After Edwards was finished testifying, the district court ruled that all of Edwards’ claims—except for one—did not constitute ineffective assistance of counsel and thus denied those claims without hearing further evidence. The one issue that the court believed potentially raised a meritorious claim of ineffective assistance was Edwards’ claim that Cooper should have interviewed Lara. As such, the district court heard testimony from Cooper on this single issue. After hearing Cooper’s testimony, tire district court ruled that it was proper for Cooper to forego interviewing Lara based on the involuntary intoxication defense he raised at trial. After making this ruling, the district court denied Edwards’ motion in its entirety.
Because Edwards was able to testify at trial regarding his claims and the district court heard limited testimony from Cooper, we find it appropriate to address the district court’s decision to deny Edwards’ motion in this direct appeal. Because the district court held a preliminary hearing where it heard limited evidence, we apply the same standard of review as when a district court conducts die same type of hearing to address the merits of a K.S.A. 60-1507 motion. This court reviews the district court’s factual findings to ascertain whether they are supported by substantial competent evidence and are sufficient to support the district court’s legal con- elusions. This court applies a de novo standard of review to the district court’s ultimate conclusions of law. Bellamy v. State, 285 Kan. 346, 354, 172 P.3d 10 (2007).
In order to demonstrate that trial counsel was ineffective, a defendant must establish two essential elements: (1) counsel’s performance was constitutionally deficient and (2) but for counsel’s deficient performance there is a reasonable probability that the movant would have obtained a more favorable outcome. Rowland v. State, 289 Kan. 1076, 1083, 219 P.3d 1212 (2009). To prove counsel’s performance was deficient, the movant must show that counsel made such serious errors that counsel’s legal representation was less than what is guaranteed by tire Sixth Amendment to the United States Constitution. Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009). Edwards has the burden to show by a preponderance of the evidence that Cooper’s representation was deficient and prejudiced him. See State v. Barahona, 35 Kan. App. 2d 605, 611, 132 P.3d 959, rev. denied 282 Kan. 791 (2006).
A. Amber Edwards
At the evidentiary hearing, Edwards testified that Cooper “deceived” him into believing that Amber could not be called to testify on his behalf at trial to rebut Detective Crump’s claim that he never spoke with Edwards’ family. Notably, at Edwards’ first trial, Crump was asked whether he spoke to members of Edwards’ family. Crump said he could not remember if he spoke with Edwards’ mother, but he did admit to speaking to Edwards’ two sisters. At the third trial, Crump was not asked any questions about whether he spoke to Edwards’ family. Accordingly, there would have been no purpose in having Amber testify about Crump speaking to Edwards’ family. Crump admitted doing so at the first trial, and the issue was never brought up at the third trial. Consequently, Edwards ■ cannot show that Cooper erred in failing to have Amber testify at trial or drat he was prejudiced by Cooper’s decision.
B. Linda Edwards
Edwards said that he told Cooper that Linda could testify about a conversation she had with Crump during which Crump told Linda that Edwards had been taken to the hospital after displaying bizarre behavior and that the hospital staff had given him a shot which caused him to be more irritated. Edwards argued that this testimony would have supported his claim of involuntary intoxication. The record shows that before Edwards’ first trial began, Cooper asked the district court to allow Linda to testify about a detective (she did not know his name) who told her that the police were looking for Edwards and that he had been “released too soon from tire hospital.” Cooper argued that this evidence was relevant to show that Edwards should not have been released from the hospital on September 16. The district court found that Linda’s testimony would constitute inadmissible hearsay and thus did not allow her to testify.
As already mentioned, Crump testified at the first trial that he could not remember whether he had spoken to Linda. Crump also testified at the first trial that he did not even become aware of this case until after lunch on September 16—long after Edwards was released from the hospital and attacked Zenner. Crump was never asked at the first trial whether he spoke to any members of the hospital staff who treated Edwards on September 15 and 16. At the third trial, Crump testified that he conducted some investigation regarding Edwards’ stay at the hospital, but he could not remember whether he actually spoke to anyone from the hospital.
The record shows that Cooper attempted to have Linda testify about her conversation with an unnamed detective, but the district court found that such evidence constituted inadmissible hearsay and, thus, denied Cooper’s request. Furthermore, the record does not support Edwards’ claim that Crump spoke to Linda or that he told her that hospital staff had given Edwards a shot which irritated him. Even if we assume that Crump made such a statement to Linda, it is unlikely that having Linda testify about the statement at trial would have changed the outcome, given the fact that Dr. Goodman testified extensively about Haldol being administered to Edwards at the hospital and opined that this drug caused Edwards to be involuntarily intoxicated when he encountered Zenner on September 16. Linda’s testimony would have added very little to Edwards’ involuntary intoxication defense—an argument the jury rejected by finding Edwards guilty of aggravated robbery.
Cooper’s failure to have Linda testify at trial about an alleged conversation she had with Crump was not deficient performance and did not prejudice Edwards.
C. Axell Lopez Lara
Edwards testified at the ineffective assistance of counsel hearing that his attorney failed to speak with Lara, a neighbor of Zenner’s who had contact with Zenner on the morning of the incident. Edwards said he was not aware of what evidence Lara could have provided to his defense, but he said that he “just felt like it would be good trial strategy to find out what she had to say, at least send an investigator to talk to her.”
Cooper testified that Edwards approached him about contacting Lara and told him that Lara might testify that Zenner went back into her apartment and rearranged some of her furniture in order to make her apartment look worse for insurance purposes. Cooper decided not to investigate this claim because he believed it would not make any sense to attack Zenner’s credibility, given the fact that Edwards’ defense at trial was involuntary intoxication and, therefore, Edwards would not dispute the fact that he attacked Zenner in her apartment.
If counsel has made a strategic decision after making a thorough investigation of the law and the facts relevant to the realistically available options, then counsel’s decision is virtually unchallengeable. Strategic decisions made after a less than comprehensive investigation are reasonable exactly to the extent a reasonable professional judgment supports the limitations on the investigation. Rowland, 289 Kan. at 1083-84. Cooper’s decision to not interview Lara constituted a reasonable professional judgment. Lara’s alleged testimony would not have supported Edwards’ defense at trial. The jury could have perceived such testimony as a needless attack on the credibility of Zenner.
D. Dr. Rohrig
Edwards testified that he was aware, based on the directions printed on a container of Haldol, that a person should not take the drag if he or she has consumed alcohol or has low blood potassium. Edwards testified that his toxicology report from the hospital stated that he had low blood potassium and had alcohol in his system. Based on this information, Edwards claimed that Cooper should have asked Dr. Rohrig whether it was correct for hospital staff to administer Haldol to Edwards.
Whether hospital staff erred in administering Haldol to Edwards was irrelevant to determining the main issue at trial—whether the Haldol rendered Edwards involuntarily intoxicated during the time he attacked Zenner. Furthermore, Edwards’ expert witness, Dr. Goodman, testified about the effect Haldol has on a person who has consumed alcohol, eliminating the need for Cooper to ask Dr. Rohrig about the subject on cross-examination and risk having him give an answer unfavorable to Edwards. With regard to the low blood potassium, Dr. Goodman, who reviewed all of Edwards’ medical records from September 15 and 16, did not mention anything about low blood potassium contributing to a person having a bad reaction to Haldol. This would indicate that a low blood potassium level would have no bearing on determining whether Haldol rendered Edwards involuntarily intoxicated. Accordingly, the record does not support Edwards’ claim that Cooper’s failure to ask Dr. Rohrig on cross-examination about alcohol and low blood potassium constituted deficient performance or prejudiced Edwards at trial.
E. Kristie Zenner
Edwards testified that he asked Cooper at trial to question Zen-ner about bruises on her arms, which she claimed resulted from her encounter with Edwards. Edwards believed that the bruises were caused by Zenner’s boyfriend. Edwards said that Cooper declined his request to question Zenner about the cause of the bruises because Cooper believed it would be a bad idea to attack Zenner on the stand. Edwards also testified that Cooper should have investigated the records of the phone he took from Zenner. When asked why those telephone records were significant, Edwards said, “I just wanted to know who used tire phone. I mean, they say that she gave me the phone. I was just wondering, you know, what the record would show.”
Because Edwards’ defense at trial was involuntary intoxication, he did not dispute Zenner’s claim that he entered her apartment, attacked her, and took property from her. The only issue that was in dispute was whether Edwards was substantially incapable of knowing or understanding the wrongfulness of his conduct and of conforming his conduct to the requirements of law when he committed these acts. Accordingly, Cooper made a reasonable, strategic decision when he declined to question Zenner about the cause of the bruises on her arm, given the fact there was no dispute that Edwards had attacked her and caused her injuries. Furthermore, it was appropriate for Cooper to forego acquiring Zenner’s phone records, given the fact that there was no dispute that Edwards took Zenner’s phone away from her. The phone records would not have provided any evidence to support Edwards’ involuntary intoxication defense.
For all of these reasons, we affirm the district court’s decision to deny relief to Edwards based on his claims of ineffective assistance of counsel.
VI. Did Cumulative Error Deprive Edwards of His Right to a Fair TrialP
Finally, Edwards claims that he is entitled to have his aggravated robbeiy conviction reversed based on cumulative trial error.
Although one error may not warrant reversal, cumulative errors, considered collectively, may warrant reversal where the totality of the circumstances demonstrate tire errors substantially prejudiced and denied the defendant a fair trial. State v. Dixon, 289 Kan. 46, 71, 209 P.3d 675 (2009). But a single error cannot constitute cumulative error. State v. Foster, 290 Kan. 696, 726, 233 P.3d 265 (2010). Based on the above analysis, Edwards has failed to establish that any errors occurred during his trial; thus, there is no merit to Edwards’ claim of cumulative error.
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Greene, C.J.:
Marian Riley and her parents, Jack and Julie Riley, appeal the .district court’s summaiy judgment against them on their claim against Allstate Insurance Company and Allstate Property and Casualty Insurance Company (collectively referred to as Allstate) for personal injury protection (PIP) benefits on the parents’ Allstate policy after collecting the maximum PIP benefit under Marian’s Allstate policy. The Rileys argue drat K.S.A. 40-3109(b) is applicable and does not prohibit stacking benefits under these circumstances. We disagree, concluding that the applicable statute is K.S.A. 40-3109(a)(3) and that it implies that an insurer need not pay PIP benefits under the parents’ policy under these circumstances. Thus, we affirm the district court as correct for a different reason.
Factual and Procedural Background
Marian Riley was driving her parents’ vehicle when she took evasive action to avoid an object on the highway and suffered serious injuries when the vehicle left the road and overturned. Both Marian and her parents carried separate Allstate automobile policies, which each provided $25,000 in PIP benefits. When Marian made PIP claims under both policies, Allstate paid the maximum benefit under Marian’s policy but refused to pay PIP benefits under her parents’ policy even though Marian was a listed driver on that policy and her eligible loss exceeded the $25,000 already paid by Allstate. The record does not reflect and the parties do not address whether policy language itself addressed stacking of benefits under these circumstances; in fact, the entirety of the policies at issue are not a part of the record on appeal.
Marian filed an action against Allstate, claiming the insurance company was obligated to pay PIP benefits due under both policies. Allstate filed a motion for summary judgment, alleging there were no controverted facts and under the language of K.S.A. 40-3109(b) (which was also specifically reflected by language in the policies), where “two or more insurers”—or policies—are liable to pay PIP benefits for the same injury, “the maximum benefits payable from all applicable policies shall be the highest limit of any one policy providing [such personal injury protection] benefits.” Marian maintained that the anti-stacking language of the statute and policies did not apply where she had outstanding medical bills exceeding the maximum benefit under each policy; thus, she argued that under her circumstances additional PIP benefits would not constitute a windfall.
At summary judgment, both parties focused their arguments on K.S.A. 40-3109(b), with Marian relying on Bradley v. AID Insurance Co., 6 Kan. App. 2d 367, 629 P.2d 720, rev. denied 230 Kan. 817 (1981), and with Allstate arguing that a 1984 amendment to this subsection expressly limited PIP recovery to one policy. The district court granted summary judgment in favor of Allstate.
On appeal, this court believed the case was likely controlled not by K.S.A. 40-3109(b) but rather by K.S.A. 40-3109(a)(3). Accordingly, after oral argument, the court invited each party to submit a supplemental brief addressing the potential applicability of this statutory subsection. Supplemental briefing from each party was filed and has now been considered by the court.
Standards of Review
From our review of both appellate briefs, we do not perceive there to be any disputed facts, thus reducing this appeal to a question of law. Where there is no factual dispute, appellate review of an order regarding summary judgment is de novo. Adams v. Board of Sedgwick County Comm’rs, 289 Kan. 577, 584, 214 P.3d 1173 (2009). Although Marian suggests that the district court “failed to consider whether a genuine issue as to any material fact existed or not,” she does not argue on appeal that any such dispute of material fact should have precluded summaiy judgment.
Interpretation of a statute presents a question of law over which we have unlimited review. Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009). The most fundamental rule of statutory interpretation is that the intent of the legislature governs if that intent can be ascertained. Our first task is to ascertain the legislature’s intent through the statutory language it employs, giving ordinaiy words their ordinary meaning. When a statute is plain and unambiguous, we do not speculate as to the legislative intent behind it and will not read the statue to add something not readily found in it. Redd v. Kansas Truck Center, 291 Kan. 176, 188, 239 P.3d 66 (2010). Only if the statute’s language or text is unclear or ambiguous do we move to the next analytical step, applying canons of construction or relying on legislative history to construe the statute to effect the legislature’s intent. Phillips v. St. Paul Fire & Marine Ins. Co., 289 Kan. 521, 525, 213 P.3d 1066 (2009).
The legal effect of an insurance policy is also a question of law over which we exercise unlimited review. Halsey v. Farm Bureau Mut. Ins. Co., 275 Kan. 129, 132, 61 P.3d 691 (2003).
Did the District Court Err in Granting Summary Judgment to Allstate?
The purpose of the Kansas Automobile Injury Reparations Act (KAIRA), K.S.A. 40-3101 et seq., “is to provide a means of compensating persons promptly for accidental bodily injury arising out of the ownership, operation, maintenance, or use of motor vehicles in lieu of liability for damages.” K.S.A. 40-3102. To this end, every owner of a motor vehicle operated on Kansas highways must purchase motor vehicle liability insurance coverage in accordance with the KAIRA. K.S.A. 2011 Supp. 40-3104(a).
Every motor vehicle liability policy issued to an owner in this state must “insure the person named and any other person, as insured, using any such vehicle with the express or implied consent of such named insured, against loss from the liability imposed by law,” subject only to the limits stated in tire policy. K.S.A. 40-3107(b). As for PIP benefits, the policy must insure the
“named insured, relatives residing in tire same household, persons operating the insured motor vehicle, passengers in such motor vehicle and other persons struck by such motor vehicle and suffering bodily injury while not an occupant of a motor vehicle, not exceeding the limits prescribed for each of such benefits, for loss sustained by any such person as a result of injury.” K.S.A. 40-3107(f).
Under these statutory provisions, Allstate was liable to Marian for PIP benefits because she was the “named insured” under her own policy. Marian apparently was not a relative residing in her parents’ household, but she argues Allstate was potentially hable to her for PIP benefits under her parents’ policy as a listed driver and, moreover, because she was operating the “insured vehicle” under her parent’s policy when she was injured. The question is whether she could permissibly stack benefits under both policies to the extent of her injuries.
Stacking is defined as “ The right to recover on two or more policies in an amount not to exceed the total of the limits of liability of all polices up to the full amount of the damages sustained.’ [Citation omitted.]” Eidemiller v. State Farm Mut. Auto. Ins. Co., 261 Kan. 711, 712, 933 P.2d 748 (1997); see also Bradley, 6 Kan. App. 2d at 376 (similar language).
K.S.A. 40-3109(b) expressly prohibits stacking of PIP benefits where two or more insurers are liable. It provides:
“(b) If two or more insurers or self-insurers are liable to pay personal injuiy protection benefits for the same injuiy to any one person, the maximum benefits payable from all applicable policies shall be the highest limit of any one policy providing such personal injuiy protection benefits. The primary personal injury protection coverage shall be provided by the policy covering:
“(1) The motor vehicle occupied by the injured person at the time of the accident; or
“(2) the motor vehicle causing such physical contact.” K.S.A. 40-3109(b).
This anti-stacking language was added in 1984. L. 1984, ch. 167, sec. 3. A subsequent amendment is not relevant to the analysis. See L. 1987, ch. 173, sec. 4.
No Kansas case has interpreted the current version of K.S.A. 40-3109(b). The prior version was discussed in two cases, Farm & City Ins. Co. v. American Standard Ins. Co., 220 Kan. 325, 552 P.2d 1363 (1976), and Bradley, 6 Kan. App. 2d 367. We distinguish these cases because they address liability when there are two insurers involved and, thus, are not controlling on the proper analysis to be applied here.
Despite the sole focus of the parties, district court, and appellate briefs on K.S.A. 40-3109(b), we have concluded that this subsection has no applicability here because it has application only where “two or more insurers or self-insurers are liable to pay personal injuiy protection benefits for the same injuiy to any one person.” This is simply not the scenario before us; here, the same insurer— Allstate—had issued two separate policies that may have PIP coverage for Marian’s losses. In the absence of “two or more insurers or self-insurers liable” for PIP for the same injuries, we decline to apply K.S.A. 40-3109(b).
Instead, we conclude the more applicable statutory subsection is K.S.A. 40-3109(a)(3), which provides as follows:
“(a) A self-insurer or the insurer of the owner of a motor vehicle covered by a policy of motor vehicle liability insurance meeting the requirements of this act shall pay any personal injury protection benefits which are required to be provided by this act or in such owner’s policy of motor vehicle liability insurance for any injuiy:
“(3) sustained in this state by any other person while occupying such motor vehicle or, if a resident of this state, while not an occupant of such motor vehicle if the injuiy is caused by physical contact with such motor vehicle, and the injured person is not the owner of a motor vehicle with respect to which a motor vehicle liability insurance policy is required under this act.”
K.S.A. 40-3109 specifies the circumstances under which an insurer must pay PIP benefits. Dreiling v. State Farm Mut. Auto. Ins. Co., 227 Kan. 851, 855, 610 P.2d 611 (1980). Unless this statute contemplates and requires PIP liability, the insurer is not obligated to pay. Accordingly, under 40-3109(a)(3), if the injured person owns a motor vehicle and was required by the KAIRA to have liability insurance, that person is not eligible for PIP coverage under the policy of the vehicle owner even if the owner’s policy would seem to provide such coverage. See Dreiling, 227 Kan. at 855-56.
At the outset, we note that this identical provision—previously found at K.S.A. 40-3109(a)(4)—was first construed by our Supreme Court in Farm & City Ins. Co., 220 Kan. at 334, where the court held:
“The last qualifying provision in K.S.A. 1975 Supp. 40-3109(a)(4), '. . . and tire injured person is not himself the owner of a motor vehicle with respect to which a motor vehicle liability insurance policy is required under this act’ modifies both preceding clauses separated by the conjunctive word ‘or’; such qualification relates to both an occupant and a pedestrian injured by another person’s motor vehicle.”
Accordingly, for purposes of this appeal, we read K.S.A. 40-3109(a)(3) to say that PIP benefits are required to be provided by the insurer of the owner of a motor vehicle for any injury sustained in this state by any person other than the owner of the motor vehicle if that person is injured while occupying such motor vehicle and the injured person is not the owner of a motor vehicle with respect to which a motor vehicle liability insurance policy is required under K.S.A. 40-3101 et seq. Conversely, if the injured person is tire owner of a motor vehicle required to be insured in Kansas, PIP benefits are not payable by the insurer of the owner of the motor vehicle involved in the accident.
Our court had occasion to construe and apply K.S.A. 40-3109(a)(3) in Hernandez v. Guaranty National Ins. Co., 29 Kan. App. 2d 47, 22 P.3d 1075 (2001). Although the facts were not quite aligned with those before us, the court held:
“[A] person injured while occupying a motor vehicle owned and insured by someone else is not entitled to recover any PIP benefits if he or she owns a motor vehicle, with respect to which a liability insurance policy is required by the KAIRA.” 29 Kan. App. 2d at 48.
See also Dreiling, 227 Kan. at 855-56 (denying PIP benefits to plaintiff because he owned a vehicle for which he was required, but had failed, to maintain an insurance policy).
Applying K.S.A. 40-3109(a)(3) in this manner to the facts before us, Allstate had no obligation to pay PIP benefits under the parents’ policy because Marian was a person other than tire owner of the parents’ vehicle who sustained injuries while occupying the parents’ vehicle but she was the owner of a motor vehicle with respect to which a motor vehicle liability insurance policy is required under tire KAIRA. This holding is consistent with the policy underlying the KAIRA, l.e., “It is clear from this and other provisions of the act that the legislature intended to prevent double recovery of PIP benefits.” Farm & City, 220 Kan. at 335.
In the Rileys’ supplemental brief on appeal, they argue that K.S.A. 40-3109(a)(3) does not apply here because Marian was not “any other person” as contemplated by the statutory subsection. They argue “[Marian] was occupying tire vehicle that was owned and insured by Jack Riley to the extent that she was driving it at tire time of the accident. She was doing all of this as a driver named, not just some other or any other person.” We disagree. The plain meaning of the statute dictates that “any other person” must be read with tire opening phrase which refers to the “owner of a motor vehicle;” thus, “any other person” is a person other than the owner of the motor vehicle. And Marian was indeed such an “other person” who was injured driving a motor vehicle owned by her parents.
In summary and conclusion, where a person injured in this State while occupying an automobile is not the owner of the vehicle, K.S.A. 40-3109(a)(3) precludes recovery of PIP benefits under the owner’s policy if the injured person was the owner of a motor vehicle for which a motor vehicle liability insurance policy is required under KAIRA. In other words, where a single insurer has written separate automobile policies for both the automobile owner and the person injured while occupying the vehicle, the injured person may not stack PIP coverage under both policies. The district court’s summary judgment in favor of Allstate must be affirmed for the reasons outlined in this opinion. See Robbins v. City of Wichita, 285 Kan. 455, 472, 172 P.3d 1187 (2007).
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