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The opinion of the court was delivered by
AtkinsoN, J. :
This is an action in ejectment brought to recover the possession • of 16.53 acres of land in Dickinson county. In July, 1886, Frederick Eicholtz died testate. He devised to his daughters, Sarah Catharine Steinhilber and Martha Ellen Holmes, plaintiff and defendant, certain lands of which the tract in controversy is a part. George A. Rush, a brother-in-law of plaintiff and Mrs. Holmes, was appointed executor of the estate. During the greater part of the year before and for several years after the death of her father, plaintiff was absent from home attending school. In January, 1887, she attained her majority. In March following, with the view of establishing the lines between the lands devised by the father- to plaintiff and her sister, a surveyor, W. S. Anderson, made a survey'. Upon the lines established by this survey fences were constructed and have since been maintained. In June, 1901, plaintiff caused a second survey of the premises to be made. The second survey established the lines substantially the same as the first survey. Neither of these surveys followed the statutory requirements for establishing division lines. The Anderson survey gave the tract in controversy to Mrs. Holmes. In July, 1901, plaintiff brought this action, basing her claim to the tract in controversy upon the devise of the premises to her by the will of her deceased father.
The claim of plaintiff was that the will in express terms excepted the tract in controversy from the premises devised to her sister, and in express terms added it to premises devised to herself. The defense was that the tract in controversy had not been devised to plaintiff- under the will; that the division or boundary lines between the premises of plaintiff and her sister had been established by the Anderson survey; that these lines so established had been recognized and acquiesced in by plaintiff and her sister for many years; that all controversies as to them were thereby settled, and that plaintiff, for the reasons stated, could ■not maintain her action to recover the tract in controversy. The trial court found generally in favor of defendants and against plaintiff for costs, from which judgment plaintiff brings error to this court.
A careful reading of the will satisfies us that the construction given to it by plaintiff is correct, and that it was the intention of the testator to devise the tract in controversy to. plaintiff. On the trial, evidence was offered showing the Anderson survey, made.in 1887 ; the establishing thereby of division lines ; the fencing of the same ; the recognition by the parties of the division lines thus established and their acquiescence in them, and the subsequent occupancy and possession by defendants of the premises in .controversy. It was also shown that the defendants had, at considerable expense, cleared up a portion of this tract of land.
The Anderson survey was made, not to determine or reestablish old lines, but to establish the division line between the premises devised to plaintiff and her sister. These lines so established were recognized by the parties and acquiesced in for a period of fourteen years. Not until defendants denied to plaintiff the right and use of a private roadway over the premises of defendants, when a bad feeling arose between them, was the second survey caused by plaintiff to be made and this action commenced. The weight of authorities is against the right of plaintiff-to recover. Where parties by mutual agreement fix boundary lines, and thereafter acquiesce in the lines so agreed upon, they must b6 considered as the true boundary lines between them, even though the period of acquiescence falls short of the time fixed by statute for gaining title by adverse possession. (Jones v. Pashby, 67 Mich. 459, 35 N. W. 152, 11 Am. St. Rep. 589; Eiden v. Eiden, 76 Wis. 435, 45 N. W. 322; Glover v. Wright, 82 Ga. 114, 8 S. E. 452 ; Lecomte v. Toudouze, 82 Tex. 208, 27 Am. St. Rep. 870, 17 S. W. 1047 ; City of Bloomington v. Cemetery Association, 126 Ill. 221, 18 N. E. 298.)
Plaintiff at the trial offered evidence .tending to show that the Anderson survey was made when she was absent from home attending school, and that she had never authorized the survey, and, in fact, had no knowledge of it. As against this claim of plaintiff, evidence was offered to show that George A. Rush was the agent of plaintiff during her absence; that he rented the premises for her, collected the rents, and used the same wherever he deemed it necessary for her interest; that he was instrumental in having the Anderson survey made ; that he paid from money in his hands one-half of the expense of this survey, the defendants paying the other half; that he constructed for plaintiff one-half of the division-line fence; that plaintiff, when at home from school, had opportunity to see and did see and know of the established lines and the construction of the fences; that after her marriage, and for years before the commencement of this action, she resided upon the premises devised to her, except the tract in controversy.
The disputed facts were before the trial court upon .conflicting evidence. The finding of that court is conclusive here. It is claimed that the agreement as to the boundary lines, if there was any agreement between the parties, was in parol. It is contended that-the owners of adjoining lands cannot, by parol agreement, mutually settle and establish boundary lines-between them. The law upon that proposition is-well settled. The owners of adjoining tracts of land may, by parol agreement, settle and permanently establish a boundary line between their lands, which, when followed by possession according to the line agreed upon, will be binding tipon the parties and their grantees. Such an agreement, followed by possession, is not- obnoxious to the statute of frauds. The agreement is not viewed as one passing title ; but it is viewed as an agreement fixing the location where the estate of each is supposed, to exist. (Lecomte v. Toudouze, supra; City of Bloomington v. Cemetery Association, supra; Edwards v. Smith, 71 Tex. 156, 9 S. W. 77 ; Burris v. Fitch, 76 Cal. 395, 18 Pac. 864 ; Diggs v. Kurtz, 132 Mo. 250, 53 Am. St. Rep. 488, 33 S.W. 815.)
The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J. :
David Z. Foster sued Lyon county to: recover damages resulting to him from the loss of profits which he would have earned on certain thrashing contracts had it not been for the negligence of the board of county commissioners of said county in‘ knowingly permitting a certain wagon bridge on the public highway over the Cottonwood river to become and remain out of repair and unsafe for public travel, by reason whereof it gave way while plaintiff was, crossing with an engine and separator and precipi-' tated the engine to the bottom of the river, thereby' preventing him from fulfilling his contracts and depriving him of earning his profits. The plaintiff was defeated in the court below and prosecutes this error.
It appears from the petition that in June, 1893, the' plaintiff and A. G. Robb and J. A. Robb entered into, a written contract of copartnership for thrashing grain during that season, the material part of which, and all that is necessary to an. understanding of its, application to. this litigation, is as follows
“.Admire, Kan., June 30, 1893. .
“This contract, by and between A. G. Robb and J. A. Robb, of the county and state above written, and David Z. Foster, of said county and state,
“Witnesseth : That the said A. G. Robb and J. A. Robb and David Z. Foster have agreed to and do enter into a general thrashing business for the year 1898, and the said A. G. and J. A. Robb are to furnish a fifteen-horse-power traction-engine, in good repair and running order, and the said David Z. Foster agrees to furnish a Minnesota Chief separator, in good repair and running order, with a wagon, elevator •and loader attached. And it is agreed that parties of the first part will put and keep said engine in good repair, and run the same during the thrashing season, of 1893. David Z. Foster is to furnish a team and man to haul water for engine, also two experienced feeders to feed and tend said machine.”
It will be observed, from an examination of this contract, that the Robbs agreed to furnish a fifteen-],iorse-power traction-engine, in good repair and ruhning order, to be operated during the thrashing season. The engine that went through the bridge was the property of the Robbs, and at the time it was lost was being used and operated in carrying on the thrashing business. It was not, however, the contract on the part of the Robbs that they were to furnish this particular engine. The contract was that they should furnish an engine of a certain kind and power, in good running order ; therefore, plaintiff had no interest or property in this particular engine. If this engine had been defective the plaintiff could have required the Robbs to put it in order or furnish another, and neglect or refusal to perform such duty would have made them liable for damages ; or if the engine had been blown up while being operated, without the fault of plaintiff, the Robbs, upon demand, would have been compelled to furnish another or respond in damages. They could not be heard to say that under the contract they were to furnish only this particular engine. Conceding, then, that the county was so negligent in keeping this bridge in repair that it would have been liable for the anticipated profits to the owner of the engine, or to another who had some special interest or ownership therein, the contract of partnership disproves any such property interest in the plaintiff. If the plaintiff could recover in this action, the farmer who lost his grain by, reason of the delay of plaintiff occasioned by the loss of this engine could also recover from the county. He sustained about the same property relation to this engine that the plaintiff did.
There is no question of proximate or remote damage involved. The plaintiff had no interest in the engine and was not entitled to recover in the action upon any theory.
The judgment of the court below is affirmed.
Ail the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action brought by B. W. Grant, a minor, to recover from the Ping Mining and Milling Company for personal services rendered as bookkeeper. He recovered $213.60, and of some of the rulings made the company complains.
There is a contention that a recovery was not warranted because Grant was a minor. The petition alleges, and therecord discloses, that he was abouttwenty years of age when the contract was made and the services were performed. The mere fact of minority, however, does not bar a recovery or defeat the judgment. While the parents. are the natural guardians of the infant, and ordinarily control him and his services, binding contracts may be made by the infant. Contracts for his benefit may be upheld, and among these are contracts for necessaries, as well as contracts of service. As a contract of service may be beneficial to a minor, it would, generally speaking, be binding upon him, and as between the infant and a third person such a contract is not to be regarded as void, merely because the previous consent of the parent may not have been given. Here no claim was made by the parent, and the record does not show that either of the parents of the minor is living, or, if living, that they have not relinquished their right to his services and time. It is shown that the contract for service was made with the minor, and with him alone ; that the services were rendered in accordance with the contract, and, under the statute, the mining company is fully protected in a payment for the services to him. General Statutes of 1901, section 4185, provides :
“When a contract for the personal service of a minor has been made with him alone, and those services are afterwards performed, payment made therefor to such minor in accordance with the terms of the contract is a full satisfaction for those services, and the parent or guardian cannot recover therefor.”
The amended petition fairly stated that the claim for services was due when the action was commenced, and the objection made to the pleading is not good. The proof sufficiently established the claim for services, and the objections made to the admission of testimony are not substantial. The judgment of the district court is affirmed.
All the Justices concurring. | [
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Per Curiam:
Thomas Holmes sued the Union Pacific Railroad Company for the value of some wheat destroyed by fire set by sparks from one of defendant’s engines, and recovered judgment. The defense was that before the fire the company had offered that if plaintiff would plow a few furrows across his field its employees would burn a guard from its track to the furrows; that plaintiff refused or failed to do so; and that if this had been done the property would not have been destroyed. We find no sufficient reason for disturbing the verdict, so far as it relates to this matter. Plaintiff in error, however, also complains that the jury was permitted to allow interest on the value of the wheat from the date of the fire. This was error. (A. T. & S. F. Rld. Co. v. Ayers, 56 Kan. 176, 42 Pac. 722.)
The cause is remanded, with directions that, if plaintiff consents, the judgment be modified by the elimination of interest; otherwise, that a new trial be granted. The costs in this court will be divided. | [
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Per Curiam:
This was an action to partition a tract of land which had been jointly owned and held by E. Gf. Raynsford and O. M. Raynsford. E. Gf. Raynsford died while the land was so held, and, after his personal estate had been administered, the brother claimed that the land was partnership property, and undertook to have it administered upon and sold to satisfy partnership ‘debts. The-heirs of the deceased denied the claim, and contended that the land was not affected by the probate proceedings because it was not partnership property; that E Gf. Rayns-ford was not a resident of Kansas when he died, and that therefore the probate court acquired no jurisdiction over the estate.
Whether or not the land was partnership property was the principal issue in the case, and the trial court appears to have found that it did not belong to the partnership, but was the individual property of the deceased, and, at his death, descended to his heirs, among whom it was partitioned in proportion to their respective rights. Whatever the testimony may have shown as to the relations of the brothers in some lines of business, it tends to show that the land in question was held as individual property, and was so treated by them in their actions concerning it. It appears, too, that E. Gf. Raynsford removed from Kansas to California in 1887. Later he went to Louisiana, where he died in 1895.
In view óf the finding of the trial court, supported, as it is, by sufficient testimony, it cannot be held that the district court was without jurisdiction, or that the parties were estopped by any proceedings in the probate court from insisting upon a partition of the land.
The judgment of the district court will be affirmed. | [
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Per Curiam:
The action of plaintiffs in error, who were plaintiffs below, was brought for the purpose of recovering damages to a stock of goods owned by them, occasioned by the explosion of natural gas in the cellar of the building in which they were doing business. The court sustained a demurrer to plaintiffs’ evidence, which action they claimed to be ground for error.
The allegations of the petition were, substantially, that the defendant had constructed and was maintaining a gas- well about fifty feet from the premises occupied by the plaintiffs ; that, in constructing and maintaining the gas-well, defendant was guilty of negligence in not properly casing the well, ánd in capping the easing and confining the pressure of gas, so.that it escaped into and through the crevices in the earth and accumulated in the cellar, where, upon being ignited, it exploded and caused the injury of which plaintiffs complain. In support of this petition, the evidence showed'that defendant bored and was maintaining this well within fifty or sixty feet of the premises occupied by the plaintiffs; that subsequent to the boring of the gas-well three wells of water within a radius of 200 feet from it became impregnated w ith gas and unfit for use; that at various times prior and subsequent to the explosion gas had escaped from some source info the cellar under the building occupied by plaintiffs; and that gas escaped along the curb of .the street in front of the plaintiffs’ place of business.
This was substantially all of the evidence tending to show negligence on the part of the defendant or leading to the conclusion that the gas which caused the explosion came from the well maintained by it. No effort was made to show any fault in the casing of the well, or other defect, or that there were no other gas-wells in the immediate vicinity from which gas might have escaped. In short, nothing except the fact that defendant maintained this gas-well and that gas accumulated in the cellar and was found in the water-wells, as above stated, was shown.
We think that this showing does not warrant the conclusion either that the gas which caused plaintiffs’ injury came from defendant’s well, or that the well had been negligently constructed or was being negligently maintained. Therefore, the court correctly, sustained the defendant’s demurrer to the evidence.
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Per Curiam:
'These are companion cases to Manley v. Mayer, ante, page 377, involving the same questions. For the reasons given in the opinion filed in that case, the same order is made in each of these. | [
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The opinion of the court was delivered by
CuNningham, J. :
The plaintiff in error, a resident of Colorado, placed in the hands of his attorney in Denver a note, with a mortgage on lands in Comanche county, Kansas, securing it, for collection. This attorney forwarded the same to an attorney living at Coldwater, in Comanche county, for foreclosure, which was had, with a stay of sale for six months. It seems that the local attorney who procured the foreclosure removed from the county prior to the sale and left the further supervision of the matter with another attorney there. The plaintiff knew nothing about this subsequent arrangement between attorneys. He was not represented at the sale by any one, and the land, which was worth $200 at the time, was stricken off to the defendant in error for $10. The land was subject, however, to a tax lien of $60, and the purchaser paid the costs of the action, amounting to about $32, in addition to his bid,- making the total amount $102 which the land cost him. The local attorney reported the matter to the Denver attorney and informed him that he would file a motion to set aside the sale and would have no difficulty in having this done. He did file such motion, but failed to attend court when it came on for hearing or to make any showing why the sale should be set aside. The court overruled the motion and confirmed the sale, and deed was issued to the purchaser. Thereafter this action was brought against the purchaser to set aside this deed upon the ground of inadequacy of price, and the shortcomings of his attorney, with allegations of fraud on his part and collusion by him in the transaction with the purchaser. The allegations of fraud and collusion were not sustained upon the trial and are abandoned in this court, but it is here contended that the plaintiff had a right by this independent procedure to have this deed set aside because of the unfaithfulness of his representatives and the inadequacy of price for which the land was sold.
We are well satisfied that neither one of these things-nor both taken together are sufficient to require the-setting aside of the deed. Had the court sustained the motion to set aside and refused to confirm, suck action would hardly have been ground of error, but this was not done. The sale was confirmed, the court at the time having the motion to set aside before it. This motion contained as grounds therefor substan-stantially the reasons which are now urged why the deed should be set aside, to wit, the negligence of the attorney and inadequacy of price. This action of the court in overruling the motion to set aside and sus- taming the motion to confirm is an adjudication of all the matters now at bar. It certainly would be an anomaly to permit a review of the court’s judgment upon these motions in an independent action based upon the same grounds presented before.
The case of Phillips v. Love, 57 Kan. 828, 48 Pac. 142, involved this exact question, and it was there held that such independent action could not be maintained. If, however, we were to consider the case upon its merits we should find no error. The inadequacy of price is not glaring, as it appears the defendant actually paid at least one-half the value of the land. The fact that plaintiff’s representatives were not diligent in guarding his rights adds little to. his claim. If they were unfaithful, he has his remedy against them.
Finding no error in the judgment of the court, it is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Geeene, J. :
J.T. Clark sought to enjoin the city of Topeka from purchasing a system of water-works subject to an encumbrance not payable for more than twenty years, and from issuing its bonds in payment of such water-works subject to the encumbrance. The cause was tried in the court below upon the pleadings and an agreed statement of facts. The injunction was denied and the plaintiff prosecutes error. After the cause was submitted to this court the parties agreed that the state be made plaintiff, and the proceedings were so amended and the state substituted for Clark as plaintiff in error.
The mayor of Topeka, upon the presentation of a petition and without consulting the council, issued his proclamation calling an election at which the question of voting bonds to be used in the purchase of a system of water-works was submitted. It is contended that, the mayor of a city of the first class has no authority to issue a proclamation calling for an election to vote-upon the question of issuing bonds with- , „ , . . ,, ^ ,. out first fiaving tfie sufficiency of the pe- ° d x tition therefor passed upon by the council. In support of this contention, reference is made-to section 721, General Statutes of 1901, being section 5 of the general charter act of cities of the first class. (Laws 1881, ch. 37, §5), which provides that “the power hereby granted shall be exercised by the mayor and council of such city, as hereinafter set forth.”
The contention is that inasmuch as the city did not act in calling the election, but only the mayor, the election was without authority and void. It appears both from the petition and the proclamation that the city was acting under chapter 82, Laws of 1897, as amended by chapter 107, Laws of 1901. The provisions of these acts pertinent to an understanding o.f the questions presented in this case are sections 8 audio, chapter 82, Laws of 1897, and section 1, chapter 107, Laws of 1901, which read :
“Sec. 8. That all cities of the first, second and third class of the state of Kansas are hereby granted full power and authority on behalf of such cities to-purchase, procure, provide and contract for the construction of, and to construct and operate, . . .. water-works ... for the purpose of supplying; such cities and the citizens thereof with water. . .
“Sec. 10. On presentation of a petition signed by two-fifths of the resident taxpayers of any such city as-, shown by the last assessment roll, the acting mayor of such city shall issue a proclamation for a city election to be held ... for the purpose of submitting to the electors of such city a proposition to issue bonds of such city for any and all purposes mentioned.- . . .” (Gen. Stat. 1901, §§660, 662.)
Section 1, chapter 107, Laws of 1901, reads:
“. . . That for any and all indebtedness created for any of the purposes mentioned in section 8 of this act any city of the first, second or third class is hereby granted full power and authority to issue and sell bonds of the city to an amount equal to said indebtedness, . . . and such bonds shall not be issued in amounts to exceed twenty per cent, of the assessed value of such city as shown by the last preceding assessment. Said bonds shall be issued in denominations of not less than ten dollars nor more than one thousand dollars and shall run for a period not to exceed twenty years, and shall bear interest at a rate not to exceed six per cent, per annum, payable semiannually, and may be used in payment of the purchase or construction of a plant or plants. . . .” (Gen. Stat. 1901, §661.)
Chapter 82 of the Laws of 1897 was passed for the express purpose of authorizing cities to obtain such utilities as light, heat and water, either by contracting with private corporations to furnish the same or by purchase or construction. It appears from this act that it was the intention of the legislature ‡0 embody all provisions necessary to enable citizens to secure these utilities in either of the ways designated.' They are authorized by section 8 of the Laws of 1897 to contract with private corporations to furnish such utilities or to purchase or construct plants for such purpose. Section 1, chapter 107, Laws of 1901, amending section 9, chapter 82, Laws of 1897, authorizes cities to issue bonds to pay the indebtedness incurred in obtaining such utilities either by purchase or construction, and section 10, chapter 82, Laws of 1897, provides in what manner the question of voting bonds therefor shall be submitted to the electors of the city.
It will be observed there is no requirement that the petition for an election proclamation shall be presented to, or passed upon by, the council. The provision is that “on presentation of a petition signed by two-fifths of the resident taxpayers of any such city as shown by the last assessment roll, the acting mayor of such city shall issue a proclamation for a city election.. . . . ”
The act provides that the mayor shall issue the proclamation, but contains no provision that the petition shall be presented to, or acted upon by, the council. In case the mayor refuse, mandamus would lie to compel him to act, and in such proceeding the council could not be involved. The rule is that where an act has reference to a particular subject, and prescribes the procedure to be adopted in carrying the purpose of the act into effect, the law is satisfied if such procedure be followed.
A second contention is that cities of the first class have no power to purchase property subject to an encumbrance or lien to be impressed with a public trust. This contention is not based upon any law directly prohibiting such transactions, but is deduced from the law that a city cannot mortgage or give a lien upon such property. We think the authorities well sustain the contention that unless expressly so authorized a municipality cannot mortgage or encumber property impressed with a public trust. That water-works owned by a city belong to that class of public property is undeniable. Conceding that the city of Topeka could not give a lien upon its water-works to secure the purchase-price, is it a fair deduction therefrom, in view of our statute, that it could not purchase such works subject to an encumbrance payable in the future?
Neither counsel for plaintiff nor those for defendants, in their very able presentation of this case, have cited us to any case where this precise question has been involved and determined, and we have been unable to find one exactly in point.
Cities are the agents of the state in the administration of government and possess such powers as are specifically delegated, and such other powers necessary and incidental thereto which will enable them effectually to perform the duties imposed by the legislature as departments of government. In determining what duties are imposed and what powers are conferred the statute should be liberally construed, to effectuate the general purpose of the legislature.
The provision of section 8, supra, is “that all cities of the first, second and third class . . . are hereby granted full power and authority on behalf of such cities to purchase, procure, provide and contract' for the construction of, and to construct, •. . . waterworks.” In the performance of this purely business trust no inhibition is imposed. They are circumscribed by no restriction, but are left free to exercise their best business judgment. They may contract to have water supplied by private corporations for any term of years and at any rate that seems to them to be for the best interests of the citizens. In contracting for the construction of water-works they may determine the amount to be expended,' and the time and manner of payment, as freely as an individual. In the construction of such works they may enter into an agreement with material-men and contractors, or they may employ a superintendent and day-laborers and construct such works under their own general supervision. Whichever course they pursue, they are at liberty to exercise their judgment for the best interest of the people. The legislature1 apparently intended that cities should be free to make the best contract possible in obtaining public utilities. Possessing this unrestricted power in the performance of a purely business transaction, we think cities may make the most advantageous contract possible. If they find that water-works which are encumbered can be bought at an advantage, it is within their power to contract therefor.
In support of its contention plaintiff in error cites several cases. In Browne v. Boston, 179 Mass. 321, 60 N. E. 934, it appeared that the city of Boston was desirous of acquiring certain lands adjacent to lands already owned by it, the price of which was $226,000. Under a statute restricting the indebtedness of the city, its borrowing capacity was a little in excess of $24,000. An agreement was entered into between the city and the owner of the land that he should mortgage the land for $202,000, and the city would buy from him for' $226,000, paying $24,000 and taking the property subject to the mortgage. In an action to enjoin the city from carrying out this contract, it was held that it was an attempt to evade the law limiting its indebtedness, and the injunction was sustained.
In Water-works Co. v. City of Ironwood, 99 Mich. 454, 58 N. W. 371, the same principle was involved as in Browne v. Boston, supra. The court held that it was an attempt on the part of the city to evade the law limiting its indebtedness and that the contract was not enforceable. In the syllabus it was said : “ Municipal corporations cannot avoid restrictions upon the amount of indebtedness they may incur by purchasing property for public purposes subject to liens.”
The case of The Fidelity Trust and Guaranty Co. v. Fowler Water Co., 113 Fed. (C.C.) 560, was an action in equity to foreclose a deed of trust executed by the Fowler Water Company to secure the payment of bonds issued by it to the amount of $30,000. It ap pears that the town of Fowler granted' a franchise to the Fowler Water Company to erect a system of waterworks and to furnish water to the town, under an ordinance by which it was agreed that, in order to obtain money to erect the water-works, the company might mortgage such plant for $30,000. This ordinance also contained a provision that the company should not alienate the same, except to the town of Fowler, within one year from the date of the completion of the works, and that the town might purchase them within a period of thirty days after the same had been tested and accepted by the town; that certain hydrant rentals should be paid by the town semiannually, and in case the water company should encumber the property to secure an issue of bonds not exceeding $30,000 the town would pay such hydrant rentals directly to the trustee named in the mortgage. The town exercised its option and purchased the works subject to the encumbrance. Default having been made by the town in the payment of hydrant rentals, the trustee brought action against the water company to foreclose the deed of trust. It was contended that, when the ordinance was passed granting the franchise, the town of Fowler was financially unable to purchase or construct waterworks, and the contract with the water company was in pursuance of a scheme to evade the constitutional provision forbidding the town to create an indebtedness in excess of two per cent, of the taxable property. It is true that in subdivision four of the syllabus the court held that a town could not purchase waterworks subject to an encumbrance. This question, however, was not involved and its determination disposed of no question in controversy. All plaintiff sought was a foreclosure of his trust deed against the water company, and for this purpose the town was a necessary party only because it held the legal title to the property. Whether the ordinance was void or the agreement between the town and water company a scheme to evade the constitutional provisions, or whether the town could purchase such property subject to an encumbrance, were not questions involved in determining the plaintiff’s right to foreclose his trust deed on the tangible property owned by the water company and covered by his deed of trust.
It is also contended that the petition upon which the proclamation was issued and the proclamation were fatally defective in that neither stated the denomination of the bonds to be issued, the rate of interest, when payable, or what property it was intended to purchase with the proceeds. The petition stated that it was presented
“pursuant to the provisions of chapter 82 of the Session Laws of 1897 of the legislature of the state of Kansas, as amended by chapter 107 of the Session Laws of 1901 of the legislature of the state of Kansas, to issue a proclamation for a city election, for the purpose of submitting to the electors of said city a proposition to issue the bonds . . . to be used in payment of the purchase of the water plant furnishing water in the city of Topeka.”
The proclamation contained the same recitals. Section 1, chapter 107, Laws of 1901, provides that “said bonds shall be issued in denominations of not less than ten dollars nor more than one thousand dollars, and shall run for a period not to exceed twenty years, and shall bear interest at a rate not-to exceed six per cent, per annum, payable semiannually.” The voters knew of these statutory provisions, and in exercising their right of franchise did so in view of them, intending to leave the minor details to be determined by the council. The provisions of the statute by reference became part of the petition as well as part of the proclamation. In this respect both were sufficient. According to the agreed statement of facts, there was but one water plant in Topeka furnishing water. Both the petition and proclamation stated that the bonds were to be used in the purchase of the water plant furnishing water to the city of Topeka. The court below ruled correctly on the objection raised. This description of the property intended to be purchased was sufficient to inform the voter.
It is also contended that both chapter 82, Laws of 1897, and chapter 107, Laws of 1901, were repealed by chapter 122, Laws of 1903, before the eieC£ion was held at which the bonds were voted. The petition requesting the mayor to issue an election proclamation was presented, and the proclamation issued, March 4, 1903. The election was called and held April 7, 1903. Chapter 122, Laws of 1903, went into effect March 18, 1903. This act concerns cities of the first class, and specifically repeals chapter 82, Laws of 1897, and all acts amenda-tory and supplemental thereto, in so far as the same apply to cities of the first class. Section 200, however, reads:
“The passage of this act shall in no way affect any bond heretofore issued, contract entered into for any public building, pavement, or sewer,-tax or special assessment levied, action now pending, or proceeding of any kind commenced and not completed, by or on behalf of any city.”
The contention is that the action taken by the city to vote the bonds before the passage of chapter 122, Laws of 1903, was not a “proceeding,” and therefore not within the saving clause of the act. It is urged that the word “proceeding” has been judicially interpreted by this court to apply only to judicial proceedings. (Gordon v. The State, ex rel., 4 Kan. 489.) This interpretation was given to the expression as used in section -7342, General Statutes of 1901. It was not, however, determined that the term could not be used to apply to other proceedings. In section 200, chapter 122, Laws of 1903, the legislature had in mind, and spoke directly with reference to, proceedings which had been taken by cities prior to the adoption of that act in the administration of governmental duties under previously existing laws, and specifically excepted from its operation all bonds issued, contracts entered into, special, assessments levied, actions pending, and all proceedings of any kind commenced and not completed by or on behalf of any city under such laws. The legislature used the expression “proceeding of any kind commenced and not completed, by or on behalf of any city” with reference to the subjects then under consideration. The act does not treat of judicial proceedings but of the organization, powers and duties of cities of the first class, and particularly of issuing bonds and the erection of public improvements, and it was to protect pfoceedings of this character commenced under previously existing laws that the saving clause was enacted.
.Another contention is that the bonds were illegally voted, because at the time of the election no indebtedness had been contracted by the city for water-works. An existing obligation on the part of a city is not a necessary condition precedent to the voting of bonds. Chapter 107, Laws of 1901, makes the existence of an indebtedness a condition precedent to the issuance of such bonds, but there are no provisions which declare that the liability must exist before bonds are voted.
It is also contended that chapter 107, Laws of 1901, under which the bonds were voted, never became operative for want of publication. Section 3 of the act provides “that this act shall take effect and be in force and after its publication in the of-ficiai city paper.” It was stipulated on the trial that the act in question was published in “The Mail and Breeze,” the official state paper. It was also published in the statute-book. Section 19, article 2, of the constitution, provides :
‘ ‘ The legislature shall prescribe the time when its acts shall be in force, and shall provide for the speedy publication of the same ; and no law of a general nature shall be in force until the same be published.”
Section 6750, General Statutes of 1901, provides :
“All acts of the legislature which shall provide for their taking effect on publication in any newspaper shall be published in the official state paper, which shall be deemed the official publication.”
The act in question provides that it shall take effect and be in force from and after its publication in “the official city paper.” This violates no provision of the constitution. Under section 6750, if the act was published in the official state paper such publication is all that is required. From and after such publication the act became operative, notwithstanding the provision that it should become operative after its publication in “the official city paper.”
It is also contendedjthat a majority of the votes cast at the election were notin favor of issuing bonds. In determining how many votes are cast at an election upon any given proposition, in the absence of fraud or mistake, the number of legal countable ballots found m the ballot-box at the close of the polls, upon which the voter has intelligently expressed himself, is determinate of the question. Ballots which are illegally cast, ot which for any reason are so defective that they should not be counted, and ballots upon which the voter has not expressed himself upon the particular proposition, should not be counted in determining the number of votes cast upon that question. Applying this rule, it plainly appears from the agreed statement that a majority of the electors voting were in favor of issuing the bonds.
The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
UuNNÍnghaM, J.:
If McNeal -was bound by the ■general appearance entered for him by his attorney, ¡(x. M. Martin, we need not consider the sufficiency of the Oklahoma service of notice to bring him in. He claims, however, that, as he authorized only a special appearance, anything beyond that did not bind him ■Or give the court jurisdiction over him. In the letters ■of the 17th and 23d- of May nothing was stated by McNeal that looked to the limitation of the right to ■enter a general appearance for him. That of the 17th called upon the attorney to defeat the motion to revive. That of the 28d indicated a method by which it could be defeated, to wit, the pleading of the statute of limitation, which, of course, if done, would be the entry of a general appearance. That of May 19 specially called upon the attorney to defeat the motion, but suggested the advisability of entering a special ..appearance. That of May 24 countermanded nothing that had been advised before, except what might -•be implied from the suggestion that McNeal would ■much rather have no appearance at all than to have a ■ general appearance entered for him. We do not see • from these letters, taken together, that the attorney ■ was at liberty to disregard one instruction more than ; another. What McNeal wanted was to defeat the ^motion to revive. If this could be done by specially pleading want of jurisdiction, well and good; if it could be done by pleading the statute of limitations, the same end would be accomplished.
But more than this, where the’ authority to the attorney is to enter a special appearance only, yet such attorney enters a general appearance for his client, the client is bound by such general appearance. Having procured and authorized the attorney to enter an- appearance, he was bound by the appearance, even though it was in excess of the authority conferred.' The client might be of the opinion that his purpose would best. be accomplished by a special appearance. The attorney to whom the accomplishment of this purpose is committed might think other-wise. Gould he excuse himself to his client if he failed to take the step best calculated, in his judgment, to guard the client’s interests? The object of the client in this case, was to defeat the allowance of the motion ; the method of accomplishing this object was committed to the attorney. The following authorities sustain this view Harshey v. Blackmarr, 20 Iowa, 161, 89 Am. Dec. 520; Hendrickson v. Hendrickson and others, 15 N. J. L. 102 ; Chambers v. Hodges, 23 Tex. 104 ; Kramer v. Gerlach, 59 N. Y. Supp. 855 ; 2 Encyc. of Pl. and Pr. 692.
It follows that, as the Barber county judgment was properly revived, there was no error in rendering-judgment thereon by the court below.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J. :
The plaintiff recovered a judgment for damages against the defendant, resulting from personal injuries claimed to have been received by him while in the railroad company’s employ. He charged that the defendant sent him into a box car to unload wooden ties which had been prepared for use by immersion in creosote, a virulent poison, the natural effect of which is to destroy the tissues of the human body with which it may come in contact, and that in handling the ties a fine, light dust which had accumulated upon them and which had become impregnated with the creosote was disseminated in the air and into his eyes, by means of which they were badly burned and his vision was permanently impaired. On the trial, the only evidence offered to prove that the ties had been treated with creosote, or that the defendant had any knowledge of the fact that they had been so treated, was the following:
"I,got in to unload the ties, and the only place for me to work was to get behind that pile of ties and shove them out; the other places were filled up; I was told to get into this separate car ; the rest of my gang went to another car, all except one man, and I went to shove these ties out; there was dry stuff on top of the ties blew into my eyes and burned my eyes for fifteen minutes, so that I had to stop work for about that long, and I went to the door, and as I went to the door, after I got so that I could see again, I saw on the end of the ties a card about five or six inches square”— . . .
“Q,. Now, you may tell what you saw, Herschell ? A. I saw a card; at the heading of the card was printed, says ‘Arkansas & Texas Tie Company;’ in indelible blue pencil was marked ‘creosote-treated ties.’
‘ ‘ You say the card was printed on it ‘Arkansas & Texas Tie Company’? A. Printed at the top, the heading of the card, and in blue pencil was marked ‘creosote-treated ties.’
“ Q. Where was the card? A. Is was tacked on the end of a tie about the middle of the pile on that ^ond.” ...
“Q. And that was on one tie? A. One tie, about the middle of the car.”
' The railroad company insists that the card itself should have been produced or accounted for. In strictness the card would have furnished the best evidence of whatever information its inscriptions imparted. Its affixture was so slight and temporary that it was removable without effort.- It was easily portable and preservable, and its description falls within that of a private document best provable production. But inasmuch as the card was casually discovered by a laborer when unloading the ties for final use, and inasmuch as it is apparent that the card was not intended to be and was not likely to be. preserved, only very slight evidence was required to show its loss, and that is sufficiently furnished by the very statement of the circumstances, so that a verdict should not be overturned because a foundation for secondary proof was not sufficiently established.
A more serious objection to the proof of the language of the card is that the defendant was not shown to be cognizant of it or privy to it in any way. The card could be important only as an admission of the truthfulness of its recitals or as ah admonition concerning the character of the ties. Without some proof that the company made the one or had due information of the other it could not be bound. The fact that the plaintiff found the card tacked to the ties was wholly inadequate for either purpose. Any stranger to the company might have placed it there ; and if it were affixed without the authority of the officers or agents of the company, it was' nothing more than the declaration of the person doing so, and of no binding effect without proof of facts showing it was intended as a means of conveying information concerning the character of the ties, and that the officers or agents of the company were, or should have been, apprised of it in time to notify the plaintiff. Unsup-plemented as the evidence stood, it was not only insufficient to establish a liability on the part of the company, but it should have been stricken out.
Before the trial began the defendant made a request for an expert physical examination of theplaintifffs eyes in the- usual and ordinary manner. No objection was made to the time or form or propriety of the request. On behalf of the plaintiff, it was stated that he consented that experts might examine his eyes by inspecting them, but that he protested against the court permitting experts or anybody else to put drugs into his eyes for the purpose of dilating them. No. reason whatever for this protest was vouchsafed. On the part of the defendant, it was suggested that in no instance could a proper examination of the eye be made without dilating certain of its parts, and the request was made that this feature of the examination be left to the experts themselves. Thereupon the court made the following order :
“The plaintiff by his consent may subject' himself to have his eyes examined, but the court will not permit any drugs to be used in the examination without the consent of the plaintiff.”
On the trial the plaintiff himself testified to a great destruction of his eyesight. Two physicians produced by:him detailed the results of superficial observations of the eyes and pronounced his vision to be permanently impaired. One of them was twenty-five years of age, had been practicing medicine but eighteen months, and had been without eye practice except in a clinical way connected with his college work. The other was a physician of experience, but he was not interrogated concerning any special qualifications he might possess for the diagnosis of cases of this character. Two physicians called by the defendant stated they had inspected the plaintiff’s eyes and were able to describe the condition of the outer tissues, but they united in asserting that no superficial examination could discover the facts or test the truthfulness of the plaintiff’s statements ; that the true condition of his eyes could/>nly be ascertained by an ophthalmoscopic examination of their deeper structures ; that a dilation of the pupils by appropriate drugs for that purpose was essential, and that such was the usual and ordinary method of examining eyes by all specialists.
Upon the submission of the cause the jury returned the following remarkable special findings :
“Q,ues. If you find for plaintiff, what do you allow him for loss of time in the past? Ans: Nothing.
“Q. If you find for plaintiff, what do you allow him for loss of time in the future? A. Nothing.
“Q,. If you find for plaintiff, what do you allow him for pain and suffering in the past? A. Nothing.
. “Q. If you find for plaintiff, what do you allow ■him for prospective pain and suffering? A. Nothing.
“Q. If you find for plaintiff, what do you allow .him for mental pain and anxiety ? A. Nothing.
UQ. If you find for plaintiff, what do you allow him for loss of ability to earn a livelihood? A. 'Nothing.
If you find for plaintiff, what do you allow ■ him for permanent injuries? A. $5000.”
Tf, therefore, the ruling of the court upon the ap plication for an examination of the plaintiff’s eyes was erroneous, it was not cured by any subsequent circumstance of the trial.
■ It is a matter of common knowledge that through the restriction of the energies of trained students and investigators to that single field, ophthalmology has been brought to a state of comparative perfection. Here, as in all other quests for truth conducted under the guidance of the scientific method, the first requirement is a full and accurate observation of the facts. The sages of old, from the data at hand, before the eye of the explorer rested upon the melting snows of the mountain peaks of central Africa, proved that the flood of the Nile is caused by the tears of Isis shed for Osiris. The ancient method of establishing facts yet dominates some minds, but the modern scientific expert will be content with nothing short of a view of the facts where they can be seen. Therefore, he has invented the ophthalmoscope for the exploration of the interior of the eye, the rhinoscope for the exploration of the nasal cavities, and other appropriate instruments for the exploration of other hollow organs of the body, and he will not attempt to bridge the chasm between ignorance and knowledge in any case where they may be of assistance until he has availed himself of their use. •
The question therefore arises whether or not the law, as a means of justice, will tolerate any other than the surest method of ascertaining truth; whether or not, with all the marvels of scientific achievement placed at it's command, the rule of thumb shall be sufficient for its purposes ; and whether or not, in this case, the timely application of the defendant for the production of the best evidence shall be granted before a transfer from the treasury of the defendant to the plaintiff of the sum of $5000 is ordered. In the case of A. T. & S. F. Rld. Co. v. Thul, 29 Kan. 466, 44 Am. Rep. 659, an order of a district court denying an application requiring a plaintiff, in a personal-injury case, to submit to an expert examination of his eyes, was declared to be erroneous. Mr. Justice Valentine, speaking for the court, said :
“The tendency of. modern adjudications and of modern thought is to open the door as wide as possible for the introduction of all evidence that may throw light upon the particular subject then undergoing investigation. All attainable evidence and instruments of evidence, within certain limitations, may be presented to the jury for their inspection and consideration, and all proper modes of investigation or inspection may be resorted to for the purpose of enabling the jury to arrive at just and correct conclusions. Many instruments of evidence, however, can be examined only by the aid of experts, and in all such cases the aid of experts is not only allowable, but may be demanded as a matter of right by the party needing such aid.
“It was shown in the present case by the testimony of Doctor Williams that the nature, the extent and the permanency of the injury to the plaintiff’s eyes could not be determined with any reasonable degree of accuracy except by a careful examination, made by some oculist or person who had made diseases and affections of the eyes a special study; and we would naturally suppose that such would be the case, independent of the testimony of Doctor Williams. Hence it would seem that in a case like the present the evidence of some such expert who had made such an examination would be an almost indispensable necessity ; but such evidence in many cases could not be obtained unless the plaintiff were first compelled by an order of the court to submit himself to a personal examination by some such expert. Now, is such evidence to be lost and justice possibly defeated, or may the court order that such an examination may be had? We favor the proposition contained in the latter portion of this alternative.” 0 (Page 474.)
It does not affirmatively appear from the statement of facts, however, that the examination of Thul contemplated the use of drugs, and in support of its opinion the court quoted from a decision of the supreme court of Iowa, as follows :
“To our minds the proposition is plain that a proper examination by learned and skilled physicians and. surgeons would have opened a road by which the cause could have been conducted nearer to exact justice than in any other way. The plaintiff, as it were, had under his control testimony which would have revealed the truth more clearly than any other that could have been introduced. The cause of. truth, the right administration of the law, demand that he should have produced it. . . '.
“The use of anesthetics, opiates or drugs of any kind should have been forbidden, if, indeed, it had been proposed, and it should have prescribed that he should be subjected to no tests painful in their character.”
This authority, however, is by no means conclusive. Drugs are of infinite shades of potency, from the rankest poisonousness to absolute innocuousness; they may produce death, or an effect so fleeting and temporary that only the most skilled observer can be conscious of it; and reactions from them range from the utterly intolerable to the positively pleasurable. The question, therefore, is not if drugs shall be used, but if an examination shall be made without serious inconvenience and without deleterious effect. Any enforced examination is vexatious and embarrassing, and very frequently must involve some slight degree of that discomfort which is denominated pain, but an examination may, nevertheless, be made with due consideration of both the sensibilities of the plaintiff and the demands of justice. Other adjudicated cases cast little light upon the question. In the case of Strudgeon v. Village of Sand Beach, 107 Mich. 496, 60 N. W. 616, the court said :
“An order requiring the plaintiff in an action for personal injuries to submit to an examination by physicians, necessarily involving the use of anesthetics, is properly refused.’5
It is to be inferred, however, from the report of the case, that the physicians were there demanding the total subjugation of consciousness — a measure so extreme that the court might well refuse to consider it. In Hess v. Lake Shore & Michigan Southern R. R. Co., 7 Pa. Co. Ct. 565, 567, the court in a speculative way remarked :
“The examination should, however, be conducted in such a manner as to avoid the infliction of pain, the subjection to indignity, or the endangering of health or life. No anesthetics, opiates or drugs should be administered.”
But it then proceeded to order an examination
“by electric tests by means of a battery of such moderate power as is approved by medical authority in like cases, and as will not inflict pain or endanger the health or life of plaintiff, either or all.”
Just why degrees of potency should be recognized in the application of a powerful natural agent like electricity and rejected when considering vegetable or mineral substances is not obvious. In the case of Belt Electric Line Co. v. Allen, 102 Ky, 551, 44 S. W. 89, 80 Am. St. Rep. 374, it was said :
“The examination should be ordered and had lender the direction and control of the court whenever it fairly appears'that the ends of justice require the disclosure or more certain ascertainment of facts which can' only be brought to light or fully elucidated by such an examination-, and that the examination may be made without danger to the plaintiff's life or health and without the infliction of serious pain.”
. And in the case of City of South Bend v. Turner, 156 Ind. 418, 428, 60 N. E. 271, 54 L. R. A. 396, 83 Am. St. Rep. 200, after reviewing the authorities to the date of the decision, the supreme court of Indiana drew the following conclusion :
“The cases above cited as affirming the existence of the power establish the following propositions : . . . (4) That the examination should be applied for and made before entering upon the trial, and should be ordered and conducted under the direction of the court, whenever it fairly appears that the ends of justice require a more certain ascertainment of important facts which can onty be disclosed or fully elucidated by such an examination, and such an examination may be made without danger to the plaintiff's life or health, or the infliction of serious pain.”
In these two cases, however, the narrow question under consideration was not independently discussed. So far as the intrinsic character of the agency employed is concerned, the law should not distinguish between dilations accomplished by mechanical and by medicinal means.
In- the case of O’Brien v. The City of La Crosse, 99 Wis. 421, 75 N. W. 81, 40 L. R. A. 831, the refusal of the plaintiff’s physician to permit the use of a catheter in the course of an examination by physicians employed by the defendant was upheld, because it appeared that a dangerous inflammation was likely to result.
In the case of Louisville Ry. Co. v. Hartlidge, 74 S. W. (Ky.) 742, the supreme court of Kentucky adhered to .the rule announced in Belt Electric Line Co. v. Allen, supra, but affirmed an order denying an examination of the person of a woman which involved a mutilation and severe pain. But in the carefully considered cases of Ala. Great Southern R. R. C. v. Hill, 90 Ala. 71, 8 South. 90 L. R. A. 442, 24 Am. St. Rep. 764, and Brown v. Chicago, M. & St. P. Ry. Co., 95 N. W. 163, the examinations authorized necessarily contemplated either an internal digital exploration or the use of 'the speculum. The conclusion to* be drawn from these decisions therefore is, that due precautions for the comfort and safety of the subject are the matters for primary consideration. With these provided for, the method and means employed should be left to the discretion of the expert making the examination.
From all this the conclusion must follow that the district court should have required an expert examination of the plaintiff's eyes to be made, subject to the- limitation that it should not produce serious discomfort or any deleterious consequence ; and in order to insure the execution of its order according to the strict letter of its terms, the court should have approved, if it did not actually select, the experts appointed to make the examination.
The judgment of the district court is reversed, with direction to proceed further in accordance with this opinion. ■
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J. :
The nunc pro tunc order of the district court by which the original, judgment in the ejectment action was supplemented ■ by adding thereto an order for a writ of assistance in favor of Shaffer was without force and not warranted by the pleadings. The very nature of the action in which the order was made recognized the possession of Shaffer. Its sole object was to dispossess him. The latter, also, asserted his occupancy of the land through Creamer, his tenant, and for this reason he was substituted by the court for the tenant as defendant in the ejectment suit. With this recognition of his initial status by both parties to the . action, any order for a writ of assistance in Shaffer’s behalf, after judgment in his favor, was beyond the issues in' the case and void (Gille v. Emmons, 58 Kan. 118, 48 Pac. 569, 62 Am. St. Rep. 609.)
• On the trial of the present case the jury found that the writ of assistance, under which plaintiff below was evicted was sued out at the instance of Shaffer. If there was no question of the .terminated tenancy of Creamer in .the case, it might be said that there was abuse.of legal process. Plaintiff below made no claim of right to occupancy except as a guest of his son, who was a subtenant of Creamer. This subtenancy was never recognized by Shaffer, the landlord. The lease in express terms provided that Creamer should not “lease nor underlet or permit any other person or persons to occupy the same (meaning the premises rented) without the consent of said party, of the second part (the landlord), in writing, having been first obtained.” No such consent was shown. Creamer, the tenant at the time defendant in error was evicted, had abandoned the premises and had been away from the land for more than three months. Whatever claim of occupancy Noble F. Austin had he derived from his son, D. R. Austin. Defendant in error disclaimed any rights except those of a visitor.
We view the action of defendant below in the samé light as if he or his attorneys had prepared the order for the eviction of Austin and caused the sheriff to serve it. Shaffer was entitled to the exclusive possession of the land as against Creamer, the tenant, D. R. Austin, the subtenant, and defendant in error, the guest of the subtenant. The right of the plaintiff below to occupy the land, or any part of it, could not rise higher- than that of his son. The latter was a mere interloper, an intruder holding adversely to the landlord, in violation of the express terms of the lease. As against D. R. Austin, and all persons holding under him, the owner had the privilege of reentry. This right he exercised through an agent: While there was a technical assault and battery by the under-sheriff on defendant in error, when he took hold of the latter’s arm, yet no actual force was used. Molliter manus imposuit. The plaintiff testified : “Q. He took you by the arm and led you off? A. Yes, sir. Q. That was all he did to you. personally ? A. Yes, sir; he didn’t hurt me any.” The goods removed fi’om the premises were not the property of plaintiff below. For the assault and battery nominal damages only might have been awarded. This, however, would constitute no basis for the imposition of exemplary damages. (Bank v. Grain Co., 60 Kan. 30, 55 Pac. 277. See, also, Mitchell v. Woods, 17 Kan. 26.)
Touching the question of the right of the landlord to take possession without legal process, see Bergland, v. Frawley and another, 72 Wis. 559, 40 N. W. 372; Goshen v. The People, 22 Colo. 270, 44 Pac. 503; 2 McAdam on Landlord and Tenant, 3d ed., § 275.
Under the authority of State v. Bradbury, 67 Kan. 808, 74 Pac. 231, the assault and battery on defendant in error was not justifiable, yet, as before said, no substantial injury resulted from it.
The judgment of the court below is reversed and a new trial granted.
All the Justices concurring. | [
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The opinion of the court was delivered by
Cunningham, J. :
This was an action of replevin, in which the plaintiff in error, as plaintiff below, sought to recover of both the defendants in error certain articles of personal property on which he claimed to have a mortgage. -The general verdict, which, in its entitling, named both defendants, was in the following language:
“We, the jury in this case, find for the plaintiff against the defendant James Robinson, that at the commencement of this action the plaintiff was entitled to the immediate possession of the property taken in this case, and that said defendant wrongfully detained the same, and we find the value of the property is *1100.”
The defense made by Elizabeth Robinson was that the mortgage was invalid as to her because, subsequent to her signing it, and without her knowledge or consent, other property had been inserted therein. Responding to this issue, the jury made a special finding as follows :
“ Ques. Did the defendant Elizabeth Robinson ever authorize the plaintiff to insert said property in said chattel mortgage? If so, when and where? Ans. No.”
Upon this general verdict and special finding, and over the objection of the plaintiff, the court rendered judgment in favor of Elizabeth Robinson for her costs, and directed the cancelation of the mortgage as to her. Of this action complaint is now made for two reasons : (1) That under section 286 of the civil code, a general verdict is required to be rendered in all cases, and that, as to Mrs. Robinson, the verdict which was returned did not amount to this, and, hence, that she was not entitled to have judgment rendered in her favor; (2) that in any event she was not entitled to have the mortgage canceled, that relief being equitable in its nature, and could' not be afforded in this kind of an action.
Concerning the first objection, we are of the opinion that the statute requires a general verdict to be rendered in all cases. We are further of the opinion that the verdict which was rendered in this case is sufficient as to Mrs. Robinson to satisfy the requirements of the statute, especially so when it was not objected to because of informality or want of definiteness at the time it was rendered. The issues involved were duly submitted to the jury as to both of the defendants upon evidence pro and con, and they were required to determine upon this evidence .whether Mr. or Mrs. Robinson, either or both, unlawfully detained the replevied property. By the verdict, the jury declared that Mr. Robinson so detained it; being silent as to Mrs. Robinson, in view of the issue submitted to it, this verdict was, by a fair and ordinary inference, a declaration that Mrs. Robinson did not detain the property; at least, if there was any uncertainty upon this point, the court might well look to the special findings for its interpretation, and thus looking, there could be no longer any doubt as to the meaning of the general verdict. The Encyclopedia of Pleading and Practice, volume 22, page 905, announces the doctrine as follows :
“It is not necessary, as a rule, for a verdict in a civil case to name the party in whose favor or against whom it is found, as a verdict in favor of or against one party is construed to be a verdict against or in favor of the other.”
In C. C. C. & St. L. Ry. Co. v. Eggmann, 71 Ill. App. 42, where the concurrent negligence of two defendants was counted upon as a ground for plaintiff’s recovery, the jury returned its general verdict against one defendant only, and in its special findings found for the other defendant. The court said :
“That while the verdict should have included both defendants, yet the omission was technical and not material, as the special findings were conclusive, and the judgment was the only one that could have been rendered even had there been a general verdict of guilty.”
In G. C. & S. F. Ry. Co. v. James, 73 Tex. 12, 18, 10 S. W. 744, 15 Am. St. Rep. 743, the action was one for damages against three defendants, arising out of a malicious prosecution. The verdict was in favor of the plaintiff against one of the defendants, without mentioning the others. The court said :
“The. verdict by necessary implication found in favor of the defendants Snyder and Spillane (the defendants not named in the verdict). If they entertained any doubt as to that it could have been corrected at the time. ... In cases where the verdict was not altogether certain, it has been uniformly held in this state that it should be upheld when its meaning can be made manifest beyond doubt by reference to the entire record.”
In Doremus v. Root, 23 Wash. 710, 714, 63 Pac. 572, 54 L. R. A. 649, the court said :
“It seems to be equally well settled, also, that silence of the verdict as to one of the defendants will not vitiate it as against the others. Such a verdict is treated as a finding in favor of the defendant not named on all of the issues, on which he is entitled to a judgment that plaintiff take nothing by his action.”
See, also, Ryors v. Prior, 31 Mo. App. 555; N. Y. T. & M. Ry. Co. v. Gallaher, 79 Tex. 685; Blue v. McCabe, 5 Wash. 125, 31 Pac. 431; Alexander Mining and Exploring Company v. Painter et al., 1 Ind. App. 587, 28 N. E. 113.
As to the plaintiff’s second contention, he may, technically, be correct. This was not an action equitable in its nature ; but how was he injured by the entry of the formal order for the cancelation of the mortgage as to Mrs. Robinson? The jury having found in her favor, both in the general verdict and by the special finding, there is nothing left for the plaintiff as against her, and what might become of the mortgage so far as Mrs. Robinson was concerned was of slight moment or concern to the plaintiff.
We find no material error, and hence affirm the judgment.
All the Justices concurring. ■ | [
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Per Curiam:
The record in this case presents the proceedings in an action for damages for personal injuries claimed negligently to have been inflicted. The decision depended upon the probative force of facts. The .trial court dispensed with the service of the jury and drew the definitive conclusion itself.
The plaintiff was the conductor of an electric street-railway car. The car was without an aisle or other passageway lengthwise through it, and the conductor was obliged to perform his duties from a foot-board running the length of the car on the outside. The electric current was conveyed to the car by a wire supported by poles placed at the side of the track, and at haphazard distances from it. These poles, in the long course of a tortuous track, zigzagged from one side of it to the other, and, through a skimped and niggard plan of construction, some of them were so near as to imperil the safety of a conductor in the performance of his duties in collecting fares from passengers aboard the car. The plaintiff was struck by a pole on a trestle, and, when knocked from the car, fell twenty-five or thirty feet before reaching the earth. This prodigality of the body and members of human beings was clearly occasioned by the negligence of the company maintaining the plant.
The plaintiff, upon entering the defendant’s service, accepted no risk arising from its negligence. He had a right to assume that the company had not set him to toil in the midst of danger. He had a right to assume that the road was built with ordinary care and consideration for the safety of the men who were to operate it, and he was not obliged to make any independent investigation for hazards resulting from the disregard of such care. Without actual knowledge of his peril, or a patency so ample as to exclude ignorance, the plaintiff assumed no risk in continuing to work under the conditions surrounding him.
Upon a demurrer to the plaintiff’s evidence, every propitious fact which it fairly supports is accepted as proved, and every favorable inference which may be fairly deduced must be indulged. So considered, the evidence-on behalf of the plaintiff is such that a jury might say he stood acquitted of any knowledge of the jeopardy occasioned by the particular pole which caused his injury, and of any culpable carelessness in failing to observe it, and that his conduct at the time of his injury was that of a reasonably prudent man. Other elements essential to a recovery were admittedly established. Therefore, the jury should have been permitted to weigh the testimony and to approve or condemn the plaintiff’s conduct, as they saw fit.-
The cases of Rush, Adm’x, v. Mo. Pac. Rly. Co., 36 Kan. 129, 12 Pac. 582; A. T. & S. F. Rld. Co. v. Schroeder, 47 id. 315, 27 Pac. 965; Clark v. Mo. Pac. Rly. Co., 48 id. 654, 29 Pac. 1138, and Hall v. Wakefield & Stoneham Street R’y, 178 Mass. 98, 59 N. E 668, relied upon by the defendant in error, were all decided upon the theory of actual knowledge of his danger by the employee.
The case of St. Louis Cordage Co. v. Miller, 126 Fed. 495, 61 C. C. A. 477, cited to the court since the oral argument, cannot be followed. It collates almost 200 cases, but not one of them is from this state. It adopts principles in direct conflict with those announced in St. L. Ft. S. & W. Rld. Co. v. Irwin, 37 Kan. 701, 16 Pac. 146, 1 Am. St. Rep. 266; A. T. & S. F. Rld. Co. v. Rowan, 55 id. 270, 39 Pac. 1010; Railway Co. v. Michaels, 57 id. 474, 46 Pac. 938; Rouse v. Ledbetter, 56 id. 348, 43 Pac. 249, and numerous other cases decided by this court. Besides, the distinguished judges of the court of appeals were themselves divided in opinion as to whether or not the case should have been submitted to the jury — a plain indication that such was the only proper course.
The case of Glenmont Lumber Co. v. Roy, 126 Fed. 524, 61 C. C. A. 506, follows St. Louis Cordage Co. v. Miller, supra, as an authority. Judge Thayer dissented, as be did in the former case, and, among other things, said:
“At all events, juries should be permitted to find, in such cases as this, whether the servant, with a full knowledge and appreciation of the risk, agreed with his master to assume it and absolve him from liability. This is an inference of fact, and juries should be left to determine it. It is an invasion of the province of the jury to do otherwise.”
The legal principles involved in this case were announced last month in the case of Buoy v. Milling Co., ante, page 436, 75 Pac. 466, as they have been time and again since the organization of the court, and, as heretofore in such cases, the judgment of the district court is_ reversed, and the cause remanded for further proceedings according to -law. | [
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The opinion of the court was delivered by
Fontron, J.:
This appeal involves but one issue; the constitutional right to a speedy trial.
On November 13, 1962, a Wichita home was burglarized and valuable items of jewelry were stolen therefrom. On March 12, 1963, charges of burglary and larceny were filed against the defendant, Frank R. Otero, in connection with the break-in.
Sometime in the month of May, 1963, the defendant was picked up in Florida and released to California where he was tried on charges of conspiring to commit robbery and Iddnapping. He was convicted of those charges and was sentenced to serve a term of from one year to life. He is still incarcerated on the California sentence.
In April of 1964, Otero became aware of the charges pending against him in Sedgwick County and requested a copy of the complaint from the county attorney. On being supplied with a copy of tihe charges against him, the defendant wrote the county attorney demanding that he be returned for trial. This letter was written April 22, 1964, and on April 27 it was received in the county attorney’s office where it languished for a substantial number of years.
It is not clear when efforts may have been started to return Otero to Kansas, but it appeai-s from the state’s brief that on May 25, 1971, Sedgwick County requested temporary custody of the defendant in order to return him to Kansas for trial. On August 3, 1971, the defendant was released to a Sedgwick County officer who returned him to Kansas. At the time of his preliminary hearing, Otero moved for a dismissal of the charges because of the state’s failure to accord him a speedy trial. This motion was overruled and the defendant was bound over for trial. On September 16, 1971, an amended information was filed. Trial was commenced October 18, after a second motion to dismiss the charges had been overruled by the trial court, and the defendant was convicted on both charges. Sentence was pronounced November 29,1971, after which Otero was returned to California authorities.
The concept of a speedy trial is threaded throughout this nation’s entire history. It has been given expression not only in the Sixth Amendment to the Constitution of the United States, but in § 10 of the Bill of Rights of the Kansas Constitution, as well. No constitutional precept is more inviolable, no right of an accused more precious, tihan that one who is accused of crime be tried promptly and with due dispatch.
No long litany of modern judicial pronouncements focusing on the federal right to a speedy trial is believed to be necessary in this opinion. However, three decisions may properly be noted briely at this time. In Klopfer v. North Carolina, 386 U. S. 213, 226, 18 L. Ed. 2d 1, 87 S. Ct. 988, the Federal Supreme Court specifically held that the Sixth Amendment guarantee of the right to a speedy trial was enforceable against the states through the medium of the Fourteenth Amendment, as “one of the most basic rights preserved by our Constitution.”
In a somewhat later case, Smith v. Hooey, 393 U. S. 374, 383, 21 L. Ed. 2d 607, 89 S. Ct. 575, the high court held that the imprisonment of an accused in a penal institution of one jurisdiction (being a federal penitentiary in that case) did not per se deprive him of the right to a speedy trial on charges pending in another jurisdiction but that upon a demand by the accused the state in which the untried charges were pending “had a constitutional duty to make a diligent, good faith effort” to bring the accused before the proper court for trial.
Soon after Smith was handed down, the nation’s supreme tribunal adhered to the rationale of that decision and in Dickey v. Florida, 398 U. S. 30, 38, 26 L. Ed. 2d 26, 90 S. Ct. 1564, the court directed the vacation of a judgment of conviction which had been entered against Dickey predicated on charges which had originated some eight years before he was tried. As was true in Smith, the petitioner in the Dickey case had been held in “durance vile” by federal penal authorities during the long interval which elapsed between the filing of the state charges and their ultimate disposition. As in Smith, also, timely demands had been made for a prompt and speedy trial of the charges. In ordering dismissal of the state proceedings, the supreme court tersely observed that no valid reason existed for the delay; that it was exclusively for the convenience of the state; and that on the record the delay, with its consequent prejudice, was “intolerable as a matter of fact and impermissible as a matter of law.” A concurring opinion authored by Mr. Justice Brennan delved more deeply into the matter of prejudice.
The most recent pronouncement from the Olympian heights finds its earthly embodiment in the pages of Barker v. Wingo, 407 U. S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182, which was decided after the briefs in the instant appeal were filed. In that case the supreme court fathered the thought that there is more than one criterion for determining whether an accused has been deprived of or has been accorded a speedy trial; that the true test rests not alone on the length of time transpiring after charges have been filed or on whether demand for trial has been made. Rather, opined the august court, the approach to the problem is a balancing test in which the conduct of both prosecution and accused is to be weighed. This approach suggests an ad hoc basis in which various factors are to be taken into account.
Baker identifies four factors entitled to consideration, although the list is obviously not intended to be exclusive: Length of the delay, reason for the delay, the defendant’s assertion of his rights and prejudice resulting to the defendant. A discussion by the court of the four factors named by it is to be found in Barker but the same need not be repeated here. The opinion is readily accessible to every reader who may be interested in the reasoning on which the decision rests.
Applying the criteria set forth in Barker v. Wingo, supra, for this common sense opinion gives flesh to the rule which we are to follow, this court inclines to the view that the defendant was not accorded his constitutional right to a speedy trial and that his motion for discharge should have been sustained by the trial court.
In the first place, the delay itself was lengthy, extending somewhat more than eight years from the filing of charges to eventual date of trial. Thus it spanned nearly a decade, a far greater time than was the case in either State v. Stanphill, 206 Kan. 612, 481 P. 2d 998, or State v. Brooks, 206 Kan. 418, 479 P. 2d 893, both cited in the state’s brief. We believe, in strict fact, the delay was inordinate.
Secondly, the delay cannot be attributed to the defendant. He did not court delay nor did he assent to any sort of continuance. For seven long years, so far as the record shows, the state simply did nothing to bring the charges to trial; it made no demand upon or inquiry of California authorities concerning the custody of Otero for purposes of trial.
It is quite true that Kansas did not become a party to the Interstate Agreement on Detainers (K. S. A. 1971 Supp. 22-4401) until 1969, when it was adopted by the legislature to become effective July 1 of that year. That compact was “far down the road” when the defendant demanded he be returned for trial, and the procedures set out therein were not available either to him or to the state. But, as we said in State v. Stanphill, supra, “A constitutional right is not to be limited or denied simply because of the lack of implementing legislation.” (p. 615.)
Moreover, we think it worthy of note that the state exerted no effort to secure the defendant’s presence by means of a writ of habeas corpus ad prosequendum, a writ well known to the common law, nor did the state attempt to use the avenues available to it under the Agreement on Detainers Act until some eighteen months more or less after the agreement had taken effect. The record is entirely barren of any showing that the state fulfilled its “constitutional duty to make a diligent good faith effort” to bring this defendant before the proper court until some seven years had come and gone. Under circumstances such as these we are obliged to infer that the delay was for the convenience of the state — not of the defendant.
So far as the defendant’s assertion of his rights is concerned, his demand to be returned for trial on the pending charges was clearly and forcefully expressed in the letter he directed to the county attorney on April 22, 1964. The state asserts, however, that the letter was misaddressed; that it should have been dispatched to the court rather than to the prosecutor. We are not unduly impressed by this argument despite the fact that statements to such effect may be found in a few cases.
The defendant’s letter was written before Kansas had provided any statutory avenue for a convict imprisoned in another state to request trial on charges pending against him in the courts of this state. Hence the defendant, unlearned as he must have been in the law, had no guidelines to follow in seeking the disposition of criminal charges pending in Kansas. We deem it not surprising that he directed his demand for trial to the county attorney, the public officer whose well known responsibility it is to prosecute offenders against the law and to press their cases before the courts of this state. We cannot fault the defendant for making his demand upon the county attorney, nor do we hold his demand insufficient for that reason.
We must point out, however, that under Article III of the Agreement on Detainers, supra, which now applies in Kansas, a prisoner’s written request for final disposition of untried criminal charges pending in the courts of another state must be delivered both to the prosecuting attorney and to the appropriate court of the prosecuting officer’s jurisdiction.
We pass now to the last of the four factors identified in Barker as requiring consideration, namely, prejudice to the defendant. This court has always recognized prejudice as an element of prime importance in speedy trial cases, although it has tended to view prejudice in the context of the accused’s ability to defend himself. (State v. Brooks, supra; State v. Stanphill, supra.)
The record offers no concrete evidence that the long delay in this case hampered the defendant in presenting his defense at the trial. There is nothing to show, for example, that witnesses were dead or could not be located; nothing to suggest that records had been destroyed or had come up missing. Nonetheless we cannot say the element of prejudice is entirely missing in this case. It is increasingly being recognized in this modern age that the impairment of a defendant’s capacity to conduct his defense is only one form of prejudice which may flow from long delay in bringing charges to trial. Justice Brennan, concurring in Dickey v. Florida, supra, makes this point clear on page 54 by quoting from United States v. Mann, 291 F. Supp. 268, 271:
“. . . ‘[P]rejudioe may fairly be presumed simply because everyone knows that memories fade, evidence is lost, and the burden of anxiety upon any criminal defendant increases with the passing months and years’ . . .” (Emphasis supplied.)
Psychological factors play a great part in man’s well being and the oppressive impact of long standing and unresolved criminal charges upon a prisoner may well have a debilitating effect both on his health and his potential for rehabilitation. This aspect of the problem is articulately explored in Smith v. Hooey, supra, and deserves quotation:
“. . . Suffice it to remember that this constitutional guarantee has universally been thought essential to protect at least three basic demands of criminal justice in the Anglo-American legal system: ‘[1] to prevent undue and oppressive incarceration prior to trial, [2] to minimize anxiety and concern accompanying public accusation and [3] to limit the possibilities that long delay will impair the ability of an accused to defend himself.’ United States v. Ewell, 383 U. S. 116, 120. These demands are both aggravated and compounded in the case of an accused who is imprisoned by another jurisdiction.
“At first blush it might appear that a man already in prison under a lawful sentence is hardly in a position to suffer from ‘undue and oppressive incarceration prior to trial.’ But the fact is that delay in bringing such a person to trial on a pending charge may ultimately result in as much oppression as is suffered by one who is jailed without bail upon an untried charge. First, the possibility that the defendant already in prison might receive a sentence at least partially concurrent with the one he is serving may be forever lost if trial of the pending charge is postponed. Secondly, under procedures now widely practiced, the duration of his present imprisonment may be increased, and the conditions under which he must serve his sentence greatly worsened, by the pendency of another criminal charge outstanding against him.
“And while it might be argued that a person already in prison would be less likely than others to be affected by ‘anxiety and concern accompanying public accusation,’ there is reason to believe that an outstanding untried charge (of which even a convict may, of course, be innocent) can have fully as depressive an effect upon a prisoner as upon a person who is at large. Cf. Klopfer v. North Carolina, supra, at 221-222. In the opinion of the former Director of the Federal Bureau of Prisons,
‘“[I]t is in their effect upon the prisoner and our attempts to rehabilitate him that detainers are most corrosive. The strain of having to serve a sentence with the uncertain prospect of being taken into the custody of another state at the conclusion interferes with the prisoner’s ability to take maximum advantage of his institutional opportunities. His anxiety and depression may leave him with little inclination toward self-improvement.’” (pp. 377-379.)
The rehabilitative aspect of punishment for crime is predominant in the thinking of many penologists and sociologists these days. The dread of having to face undetermined criminal charges upon release from incarceration, it is said, may prove to be quite damaging to a prisoner’s mental health as well as negating efforts to prepare him for adjustment to the outside world, once he re-enters it. Recognition of the harmful effects which a detainer may have upon a prisoner is to be found at the beginning of Article I of the Agreement on Detainers, in these words:
“The party states find that charges outstanding against a prisoner, detainers based on untried indictments, informations or complaints, and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions, produce uncertainties which obstruct programs of prisoner treatment and rehabilitation. . .
The state argues vigorously that prejudice is not to be presumed from a long lapse of time, alone, but that the burden of establishing prejudice rests upon the accused. Statements to the contrary may be found among the cases involving the speedy trial issue. Moreover, it must be kept in mind that the primary burden is on the courts and prosecutors to assure that cases are brought to trial. (See Barker v. Wingo, p. 529.)
But we do not predicate our opinion on a presumption of prejudice arising from lengthy delay, but on a balancing of factors of which prejudice is only one, albeit an important and substantial one. Furthermore, the state’s argument assumes that prejudice is important only as it relates to the ability of an accused to make his defense. We have already demonstrated the error of such an assumption. Mr. Justice White put the matter succinctly in United States v. Marion, 404 U. S. 307, 320, 30 L. 2d 468, 92 S. Ct. 455, where he said:
“. . . [T]he major evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused’s defense.
Giving consideration to all the circumstances shown to exist in this case we hold that the defendant was deprived of his right to a speedy trial.
The judgment is reversed with directions to sustain the defendant’s motion to dismiss the proceedings. | [
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal in a criminal action in which Chester L. Clinton (defendant-appellant) was tried to a jury and convicted of felony theft pursuant to K. S. A. 1971 Supp. 21-3701 (a). The court, having found that defendant had previously been convicted of two felonies, applied the Habitual Criminal Act, K. S. A. 1971 Supp. 21-4504 in imposing sentence. The facts of this case are undisputed and no detailed statement is necessary. The evidence was sufficient to show that appellant shoplifted a coat from a retail store.
Appellants first point of error for reversal is that there was insufficient evidence to support a finding that the stolen coat had a value of $50 or more which would make the offense a felony. Appellant further contends that the trial court’s instruction on value was erroneous because it failed properly to instruct on the meaning of market value and, as given, was a comment on the evidence. The record indicates that evidence was introduced as to both the retail and wholesale price of the coat, the former being $69.95 and the latter being $37.80. The testimony also showed the procedure for determining retail value by taking into account the operating expenses of the store. Furthermore the coat itself was admitted into evidence, and thus the jury was able to examine it. The law is clear that the retail price of stolen property may be admitted to show the value of property taken so as to establish the degree of the crime. (State v. Mall, 112 Kan. 63, 209 Pac. 820.) We hold the evidence in this case clearly sufficient to uphold the jury’s determination as to the value of the coat. We have examined the trial court’s Instruction No. 10. Although slightly argumentative, this instruction presents a correct statement of the law. We find no reversible error in its presentation to the jury by the trial judge.
Appellant’s second point challenges the qualifications of the jury which convicted appellant. The thrust of appellant’s argument is that the district court erred when it permitted three jurors to try appellant’s case when these same individuals had served as members of the panel on another jury previously the same week. The appellant contends that K. S. A. 43-103 should be interpreted to mean that an individual is prohibited from sitting on more than one jury case during any one year. K. S. A. 43-103, now repealed, in substance prohibited the selection of persons for the jury list who actually served as jurors during the year next preceding the date of selection. We find appellant’s argument without merit. In State v. Hamilton, 74 Kan. 461, 87 Pac. 363, this court construed section 3797 of the General Statutes of 1901, which statute is identical in language with K. S. A. 43-103. It was held that the words “during the year next preceding such selection” meant the preceding year, counting back from the time of the making of the jury list. It is clear that persons selected for jury service pursuant to K. S. A. 43-101 and 43-102, both now repealed, were eligible to serve as jurors for the ensuing year following their selection as members of a jury panel.
Appellant’s final point of error is that the trial court was not justified in invoking the provisions of the Habitual Criminal Act, K. S. A. 1971 Supp. 21-4504. It is argued that under the circumstances of this case a sentence of five to fifteen years for felony theft is excessive punishment and thus in violation of the Eighth Amendment to the United States Constitution. The cases are legion in upholding the constitutionality of the Habitual Criminal Act. See State v. Caldrone, 205 Kan. 828, 473 P. 2d 66, cert. den. 401 U. S. 916, 27 L. Ed. 2d 817, 91 S. Ct. 896 (1970). The trial court did not err in its application of K. S. A. 1971 Supp. 21-4504 in imposing sentence in this case.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Owsley, J.:
Defendant was convicted by jury trial of permanent deprivation of property valued over $50.00 (K. S. A. 1971 Supp. 21-3701) and the burglary of an automobile (K. S. A. 1971 Supp. 21-3715). He appeals from the verdict, order overruling motion for new trial, order overruling motion to arrest judgment, judgment of conviction and imposition of sentence.
On October 26, 1970, plaintiff filed a complaint in the Johnson County Magistrate Court, charging Robert Gregory Burns and Kenneth Scott with the crimes of theft of property of a value in excess of $50.00 and burglary.
On November 24, 1970, a hearing was held in the magistrate court in regard to the defendant Bums only. At the time of the hearing, the complaint on file with the court was amended by interlineation as to Bums only, amending Count I to charge the crime of theft of property of the value of less than $50.00 and dismissing the burglary as it was alleged in Count II of the complaint, following which the defendant Bums entered a plea of guilty.
On December 10, 1970, defendant appeared before the court for a preliminary hearing on the felony theft and burglary charges and following the presentation of evidence by the state, the court bound the defendant over for trial in the district court of Johnson County, Kansas, finding that the crimes as set out in the complaint and as defined by K. S. A. 1971 Supp. 21-3701 and K. S. A. 1971 Supp. 21-3715 were committed in Johnson County and that there was probable cause to believe the defendant had committed them.
At the trial the state’s evidence established that John Wright, Jr., a high school senior, had car trouble on the 20th day of October, 1970, and at that time he left his car at a Phillips 66 service station at 67th Street and 1-35 in Johnson County, Kansas. At that time he asked the attendant at the station if it was all right to leave the car there and was advised that it would be all right but that he should lock the car. When he returned to the station on October 22, 1970, he observed that the wing window of the car had been forced open and that a Sun Super Tachometer which had been attached to the steering column was missing. Cap screw bolts which had held the tachometer in place had been undone and wires leading to the tachometer had been cut and it had been removed from the steering column of the automobile. Additionally, upon looking under the hood of the vehicle he observed that the manifold, manifold adapter on the carburetor, distributor, distributor cap and plug wire were also missing.
According to Burns, who testified on behalf of the state, he and the defendant had been working at the service station in October of 1970 and on the 20th day of October, 1970, John Wright left his car there after a conversation with both of them. He testified further that on the 24th day of October, 1970, at approximately 7:20 in the evening he and the defendant went over and looked in Wright’s vehicle and saw the tachometer attached to the steering column. Defendant then popped open the wing window, opened the door and removed the tachometer with a screw driver. Defendant then raised the hood of the car, saw the carburetor and sent Burns into the station to get some tools to remove the carburetor. Defendant then removed the carburetor, distributor and manifold, kept the tachometer stating that he was going to give it to his brother-in-law, and told Burns to take the rest of the parts home. Burns then took the parts home and put them in the basement until the 25th day of October, 1970, at which time defendant requested that he bring them back to the station which he did.
Mike Burgess, a friend of Wright’s, upon learning from Wright that these parts had been taken from his automobile, agreed to help Wright attempt to locate them. In the course of this he talked to Burns concerning the purchase of the carburetor and upon seeing it, recognized it as belonging to his friend, Wright. On October 25, 1970, Burgess, accompanied by Detective Cobb of the Johnson County sheriff’s office, proceeded to the service station where he attempted to purchase the manifold from Burns. Upon seeing the manifold which was the subject of the discussion, Burgess recognized it as belonging to Wright and so advised Detective Cobb, at which time Burns was placed under arrest.
The defense presented the testimony of defendant’s brother-in-law, James Pflumm, Jr., the defendant’s wife, and the defendant, to show only Burns was guilty of taking the auto parts. Pflumm testified that he had not seen the said automotive parts in defendant’s presence, but had seen them in the trunk of Bums’ car on a Sunday. Pflumm had wanted to trade carburetors and defendant had advised Pflumm that Bums had a carburetor that he wanted to trade since Burns indicated it was too big for his car. Defendant and Pflumm went to the service station. Bums drove off and returned, opening his trunk where Pflumm saw all of the parts. Pflumm declined to trade his carburetor for Burns’. Defendant agreed to rebuild Bums’ carburetor and Bums offered defendant a tachometer to pay him for his work in such rebuilding. Defendant and Pflumm took the carburetor for rebuilding and the tachometer for payment. Pflumm borrowed the distributor to check out on a racing car which he and another friend owned.
Defendant denied entering Wright’s car for any purpose. He stated that two or three weeks earlier Bums had been wanting to buy a carburetor. Pflumm had one but Bums didn’t have any money. On Friday or Saturday, when defendant stopped by the service station for gas, Burns told appellant that he had a carburetor to trade for Pflumm’s carburetor. On Sunday, defendant and Pflumm went to the service station and defendant saw all of the property in the trunk of Bums’ car. Pflumm decided not to trade carburetors. There was a discussion about defendant’s rebuilding Bums’ carburetor for $8.00 to $10.00 for the kit and for $10.00 for his work. However, Burns offered to give defendant the tachometer. Defendant didn’t want the tachometer but offered to give it to Pflumm who would pay defendant one-half the cost of the work. Defendant confirmed that he and Pflumm borrowed the distributor to check on a friend’s car. The manifold remained in Bums’ trunk.
On appeal, the defendant lists 46 assignments of error. He covers the assignments of error under 18 different headings. We will discuss the arguments as they are numbered and identified in defendant’s brief.
Defendant in Argument I claims the magistrate court lost jurisdiction of the defendant and the district court never acquired jurisdiction.
The state commenced prosecution of defendant and the witness, Burns, by filing in magistrate court a complaint charging each of them with the felonious permanent deprivation of property having an approximate value of over One Hundred Sixty Dollars, in violation of K. S. A. 1971 Supp. 21-3701, in Count I, and with burglary in violation of K. S. A. 1971 Supp. 21-3715, a felony, in Count II. Defendant points out that the complaint was amended in the magistrate court to charge a misdemeanor in Count I and to dismiss Count II. Defendant further points out that the journal entry binding the defendant over for trial in' the district court referred to the “offenses as set out in the complaint.”
Defendant argues that since the only offense set out in the complaint was a misdemeanor he could not have been bound over to the district court on a felony.
The state shows that at the hearing in magistrate court for Burns the complaint was amended as indicated, but only as to defendant Burns. In support, the state points out that the court made a note on the face of the complaint that the amendment applied to Burns only. An examination of the record discloses the court’s note on the face of the complaint and the judge’s minutes are consistent with an amendment as to Bums only. We conclude that the amendment of the complaint did not apply to defendant Scott and he could be properly bound over on any charges satisfactorily proven at the preliminary hearing. (The State v. Fields, 70 Kan. 391, 78 Pac. 833.)
Defendant in Argument II attacks the sufficiency of the information. He contends the information was jurisdictionally defective in that it faffed to state in what manner defendant exercised unauthorized control over the stolen property. He further contends the information was jurisdictionally defective in that it alleged facts in the disjunctive.
It is not necessary to consider the extended argument of the defendant on these points. The defendant on arraignment entered a plea of not guilty and subsequently was tried and convicted. No attack was made on the information until the close of the state’s case.
This court has long held that an attack on the information must be filed prior to the plea. In considering like arguments on the sufficiency of an information, we said in State v. Ashton, 175 Kan. 164, 262 P. 2d 123:
“. . . Does the record indicate the information failed to apprize appellant with reasonable certainty of the nature of the accusation against him? . . . In September appellant waived arraignment and joined issues on the offense as charged, which he now says is too indefinite, by entering his plea of not guilty thereto. It was not until the day of the trial, over a month later, that appellant moved to quash the information on the grounds stated at the beginning of this opinion.
“It will be observed appellant filed no motion for a bill of particulars and did not move that the information set forth any additional facts in order to apprize him more fully of the accusation against him.
“Our bill of rights is frequently misinterpreted. Unlike bills of rights in some states section 10 of ours does not prescribe the degree of particularity and specifications required in an indictment or information. It guarantees only the right to every accused person to appear and ‘demand the nature and cause of the accusation against him.’ Appellant, as already indicated, had made no demand for a more elaborate or detailed statement of the facts but on the contrary joined issues on the charge as framed. . . .
“In other words section 10 of our bill of rights grants an accused a privilege which he may exercise or waive as he sees fit. Here appellant waived the privilege. We have said a motion to quash should be filed before a defendant pleads thereto. (State v. Hupp, 154 Kan. 410, 412-413, 118 P. 2d 579.) In State v. Finney, 141 Kan. 12, 28, 40 P. 2d 411, we said an attack on the information must be filed prior to the plea. . . .” (pp. 174,175.)
We conclude each o£ the defendant’s arguments is without merit on the rationale of Ashton. In further support of our position, see State v. McArthur, 186 Kan. 745, 352 P. 2d 954, and Kelly v. State, 196 Kan. 428, 411 P. 2d 611, which hold technical defects in an information are waived by entering a plea thereto.
Argument III claims error in the admission of State’s Exhibit No. 5. This was a written statement of state’s witness, Bums, taken at the time of his arrest and introduced to corroborate his testimony at the trial. Defendant contends it was hearsay and was not admissible unless the witness had been impeached, citing State v. Fonts, 169 Kan. 686, 221 P. 2d 841.
If witness Burns was impeached the written statement was properly admitted in evidence. We must determine under the facts in this case whether the witness was impeached. Impeachment occurs when a suggestion is made by direct proof or by the nature of an examination that a witness has testified falsely for hope of reward, promise of immunity, fear, or malice. The record discloses the defendant’s counsel asked the witness the following questions:
“Q. Now, you originally were charged in this thing as a codefendant with the Defendant Kenneth Scott, were you not?
“Q. And there was some sort of a deal made whereby you entered a plea of guilty to a lesser charge, was there not?
“Q. And then you entered a plea of guilty to a lesser charge, didn’t you?
“Q. Was any promise made to you at the time of that plea?
“Q. After you entered a plea you did not go to jail?
“Q. (By Mr. Fleming) Only one or two more questions, Your Honor. Mr. Bums, do you know why the charge was reduced from two felonies to one misdemeanor in your case?”
The gist of these questions suggests to the jury that the witness was fabricating testimony in return for a dismissal of the felony charges against him, and permitting him to plead to a misdemeanor. In these circumstances the witness stands impeached. Previous statements of the witness consistent with his trial testimony made prior to the reduction of the charges, and a plea of guilty thereto, are admissible to bolster his credibility.
We find no error in admitting the prior statement of the witness, Burns, under the facts in this case.
Arguments IV and V claim error in allowing the state to introduce evidence of prior convictions and of a confession of a prior crime. The prior convictions consisted of a burglary and larceny of the Livesay residence and a burglary and larceny of the Gibson Skelly Service Station. The confession made to a testifying officer concerned a burglary of the Schauble D-X Service Station.
Prior to the admission of the prior convictions and the confession, and outside the hearing of the jury, counsel made the following statement to the court:
“I will state, for the record, that the Defendant will, in fact, testify. The Defendant will, in fact, testify on these very points as to what he was guilty of, what he entered a plea to. There was no trial in those previous cases. It is not saying that the State was not prepared for trial. I am sure that they were, but the fact is that this Defendant entered a plea to two of three felonies that were charged. . . .”
In addition, the following colloquy took place between the court and counsel for the defendant:
“The Court: Let me inquire, Mr. Fleming. Did I understand you to say that it was your intent to introduce evidence with reference to these prior pleas?
“Mr. Fleming: Absolutely. I will stipulate to the fact that the Defendant is going to testify. They can pull him out as part of the Prosecution case, if they want him.
“The Court: What is your basis for contending that you have the right to put that evidence in?
“Mr. Fleming: To put in what his record is?
“The Court: Yes.
“Mr. Fleming: Because his character is going to be in question, and he will be on the stand, and he will testify in regards to his prior ofíenses, and as to what they were. What he entered a plea to, and what he was sentenced to.
“The Court: If you intend to introduce evidence yourself, what possible objection could you have to the State introducing evidence?
“Mr. Fleming: By the manner in which it is going to be introduced, the vehicle, I mean, of which is coming before this Jury.”
In connection with the arguments on the motion for a new trial the trial court made the following statement:
“. . . This Court believes that the Defendant would not and could not have been convicted, except for the evidence of prior crimes. Accordingly, I would grant a new trial, except for the fact that the game plan or trial strategy of the Defendant’s attorney called for the Defendent to produce this same evidence as character evidence. The apparent theme being that the young man standing accused had previously erred, candidly admitted guilt, mended his ways and would not have been involved in so petty of a crime with such magnificent circumstances. Offering such would also tend to explain an undue fear of being used and tends to justify the temporary throwing away of some of the auto parts in his possession prior, to his reconsideration and having these parts delivered to his counsel. Inasmuch as the Defendant announced his intention to introduce this evidence prior to the trial commencing, the Court will not grant a new trial on this ground.”
We agree with the trial court.
The defendant, during the presentation of the state’s case, announced that he was going to testify, and that he would admit the prior convictions. Under these circumstances, we find no abuse of discretion by the trial comb in permitting this evidence to be admitted on introduction by the state.
Argument VI claims error in allowing the state to impeach a witness called by the defendant, but endorsed on the information as a state’s witness.
Whatever merit defendant’s argument may have, it was eliminated with the enactment of the new code of civil procedure in 1964. K. S. A. 60-420 provides:
“Subject to sections 60-421 and 60-422, for the purpose of impairing or supporting the credibility of a witness, any party including the party calling him may examine him and introduce extrinsic evidence concerning any conduct by him and any other matter relevant upon the issues of credibility.”
Argument VII claims error in failing to order the state to furnish defendant with all evidence favorable to the defendant.
Such a motion was made by the defendant and although presented to the trial court no formal ruling was made. Knowing the court had not ruled, the defendant elected to proceed to trial. The act of the defendant in proceeding to trial without requesting a ruling on the motion constitutes a waiver of all rights sought by the motion.
Argument VIII claims error in failing to grant the defendant’s motion for a directed verdict, judgment of acquittal, or for a new trial.
This argument centers around the statement of the trial court that the defendant would not have been convicted without the evidence of prior crimes. The trial court also comments that the evidence of prior crimes was not admissible as relevant to the elements set forth in K. S. A. 60-455.
We have previously stated under Argument IV that the trial court did not abuse its discretion in admittting evidence of prior crimes. The application of K. S. A. 60-455 was not the basis for the admission of such evidence. Furthermore, the testimony of witness Bums, if the jury believed it and apparently they did, was sufficient to support the conviction. We see no merit in defendant’s contention.
Arguments IX, X, XI, XII, and XIII relate to instructions. The record discloses no timely objection by the defendant to any instructions attacked on appeal. Defendant claims, however, that he is entitled to review the instructions based on provisions of K. S. A. 1971 Supp. 22-3414 (3), which reads in part:
“No party may assign as error the giving or failure to give an instruction unless he objects thereto before the jury retires to consider its verdict stating distinctly the matter to which he objects and the grounds of his objection unless the instruction is clearly erroneous. . . .”
After carefully reviewing the instructions we cannot say that any of them are “clearly erroneous.”
Arguments XIV and XV claim a new trial should have been granted on account of newly discovered evidence in the form of an analysis of a polygraph examiner concluding that defendant told the truth. Defendant further claims that the analysis discloses witness Burns gave false testimony which resulted in defendant’s conviction.
The results of a polygraph or lie detector test are not admissible as evidence under the decisions of this court. (State v. Lee, 197 Kan. 463, 419 P. 2d 927, cert. den. 386 U. S. 925, 17 L. Ed. 2d 797, 87 S. Ct. 900, reh. den. 386 U. S. 978, 18 L. Ed. 2d 142, S. Ct. 1170.) Newly discovered evidence must be admissible to form a basis for granting a new trial.
Additional arguments have been covered in connection with other contentions made by defendant and we find they are without merit.
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|
The opinion of the court was delivered by
Schroeder, J.:
This is an action in the district court to foreclose an alleged equitable mortgage covering an undivided %eth interest in a producing oil and gas lease. Appeal has been duly perfected from an order of the district court of Russell County, Kansas, entered on the 10th day of April, 1961, sustaining a demurrer to the appellants’ petition and denying their application for the appointment of a receiver.
The controlling question is whether the district court has jurisdiction to entertain the action. Embraced within the foregoing question is whether, on the facts in this case, the probate court has exclusive original jurisdiction to foreclose an equitable lien against personal property in a decedent’s estate.
The petition alleged in substance that Howard D. Fink died testate on the 27th day of December, 1960, a resident of Russell County, Kansas, leaving surviving him as his sole and only heirs at law the defendant Lorene S. Fink, his wife, the defendant Howardine Faust, his daughter, and the defendant Arnold D. Fink, his son. The decedent’s last will and testament dated December 19, 1960, was duly admitted to probate and record in the probate court of Russell County, Kansas, on the 17th day of January, 1961. On that day Lorene S. Fink was appointed and qualified as executrix of said estate and continues to be the duly appointed, qualified and acting executrix of said estate.
The petition further alleged that on the 14th day of September, 1959, Howard D. Fink for a valuable consideration executed and delivered to Dan B. Shields and E. K. W. Shields (plaintiffs-appellants) his promissory note in the amount of $12,000, payable on the 14th day of September, 1960, with interest thereon at the rate of six percent per annum.
Thereafter, Howard D. Fink on or about the 24th day of September, 1959, executed an assignment of his undivided Vieth working interest in the Heim oil and gas lease dated March 26, 1952, on a described quarter section of land in Russell County, Kansas. This assignment was subject to its proportionate part of an overriding royalty interest of Victh of Jsths of all oil and gas which may be produced from the land under said lease. This instrument was marked as an exhibit and attached to the petition and incorporated therein by reference.
The petition alleged that on the 24th day of September, 1959, Howard D. Fink delivered said assignment to Eric E. Smith, his attorney and agent, and authorized him to hold such assignment until the aforesaid note, including interest thereon, should be paid in full; that on September 25, 1959, Smith in accordance with instructions from Howard D. Fink duly acknowledged his holding of said assignment by a letter to the plaintiff Dan B. Shields, the material portion of which reads:
“Mr. Howard Fink of Russell, Kansas has explained to me in detail a recent loan which you made to him for $12,000.00, and has made the following arrangements in order to secure your position.
“Mr. Fink has delivered to this office an assignment of his interest in the Heim oil and gas lease located in Russell County, Kansas, and has instructed me to record the assignment in your name in the event of his death prior to his making full payment of the loan including interest. Mr. Fink has advised me that he intends to make every effort to repay this loan within the shortest possible time as he has no desire to violate your confidence.
“The above mentioned assignment of oil and gas lease will be held in my office until such time as the loan, including interest, has been paid in full and evidence of payment received.”
The petition alleged that on the 19th day of October, 1960, the plaintiff Dan B. Shields granted an extension of six months for payment of the note, and that on the 20th day of October, 1960, interest due upon the note was paid to September 14, 1960. The petition then states:
“8. (a) That the defendant Eric E. Smith holds in his possession the original executed copy of the aforesaid assignment of oil and gas lease and refuses to deliver the same to these plaintiffs; that the original copy thereof has not been acknowledged; that it does not bear the name of the assignee, but was executed by the said Howard D. Fink and delivered to the said Eric E. Smith, as his agent and attorney, as security for the promissory note above described; that Eric E. Smith holds said original assignment for instructions by this court as to whom he should deliver the same;
“(b) That said assignment has not been offered for recording in the office of the Register of Deeds of Russell County, Kansas; that the same is not subject to recording in the office of said Register of Deeds in that it has not been acknowledged in the manner provided by law. That the mortgage registration fee, payable upon the recording of mortgages, has not been paid upon the aforesaid instrument in that it is not subject to recording and plaintiffs do not have possession of said instrument; that plaintiffs do hereby tender and pay to the Clerk of the District Court for the benefit of Russell County, Kansas, the sum of Thirty Dollars ($30.00) in payment of the mortgage registration fee which may be due on the recording of the original copy of the aforesaid assignment of oil and gas lease interest.
“9. That no part of the aforesaid note to these plaintiffs from Howard D. Fink has been paid, except the interest as hereinabove alleged; that the whole of said note is now due and owing; that the aforesaid assignment of oil and gas lease interest in the possession of Eric E. Smith is a mortgage and default has occurred in the payment of the note for which the same was given as security.
“10. That the defendants above named, except the defendant Eric E. Smith, claim some right, title or interest in and to the aforesaid off and gas lease interest described in said assignment, but that whatever right, title or interest said defendants have is subject to and inferior to the claim, lien and mortgage of these plaintiffs; that plaintiffs make no claim of personal judgment against any of the defendants.”
The prayer sought judgment for the amount due on the note, an adjudication that the assignment be declared a mortgage in favor of the plaintiffs, and an adjudication that the mortgage be foreclosed and the oil and gas lease interest be sold as provided by law and the proceeds applied to the indebtedness.
Thereafter, on the 7th day of April, 1961, the plaintiffs filed their application for the appointment of a receiver. This application incorporated the allegations of the petition by reference and alleged the oil and gas lease interest covered by the mortgage was producing monthly income to the executrix of the estate of Howard D. Fink, deceased, of approximately $175 with operating expenses attributable to said interest of approximately $50 per month. It alleged the leasehold interest was probably insufficient to discharge the mortgage debt in that the reasonable value of said leasehold was not in excess of $5,000.
It further alleged the operator of the lease had the right to subject the interest in the leasehold to a hen for its proportionate share of the expenses incurred in operating the lease, and in such further amounts as may be attributable to such interest during the pendency of the action, if the same should not be paid; and that by reason thereof the leasehold interest, covered by the plaintiffs’ mortgage, was in danger of being lost or materially injured.
Lorene S. Fink, individually and as executrix of the estate of Howard D. Fink, deceased, filed a joint and separate demurrer to the petition. After hearing and argument the district court sustained the demurrer and denied the application for the appointment of a receiver.
An oil and gas lease conveys no interest in land but is merely a license to explore and is personal property, an incorporeal hereditament — a profit a prendre. (Connell v. Kanwa Oil Inc., 161 Kan. 649, 170 P. 2d 631; and Denver National Bank v. State Commission of Revenue & Taxation, 176 Kan. 617, 272 P. 2d 1070.) The same is true of an undivided fractional interest in an oil and gas lease, as here.
For purposes of a demurrer the allegations of the petition are presumed to be true, including the allegations that Howard D. Fink died testate on the 27th day of December, 1960, and that the defendant, Lorene S. Fink, was the duly appointed, qualified and acting executrix of the decedent’s estate, which was in the process of administration in the probate court of Russell County, Kansas, on the date the petition was filed.
In the absence of allegations to the contrary it is presumed the executrix complied with the law and as of December 27, 1960, took possession of the assets of the decedent’s estate, including the undivided %oth interest in the oil and gas lease here in question. It was the obligation of the executrix under the probate code to protect the creditors of the decedent as well as his heirs, devisees and legatees. It may therefore be said that when the petition herein was filed on the 25th day of March, 1961, the executrix had inventoried the undivided working interest of the decedent in the oil and gas lease here in question, and was holding the possession and administering the same as an asset of the estate. Thus, when the instant action was filed in the district court of Russell County, the probate court of Russell County had long since assumed and was then exercising jurisdiction over the entire estate of the decedent, including the decedent’s interest in the property here in question.
The appellants assert the facts alleged in the petition disclose the existence of an equitable mortgage, and contend the district court has jurisdiction of actions to foreclose equitable mortgages created by a decedent against property owned by him at the date of his death. They rely upon Hill v. Hill, 185 Kan. 389, 345 P. 2d 1015, which they contend is squarely in point. We think the trial court properly distinguished the Hill case in the journal entry announcing its decision. There the court was confronted with an equitable purchase money mortgage on real estate, title to which was taken by the decedent during his life in joint tenancy with his wife. Upon the decedent’s death legal title to the property passed to the decedent’s widow by survivorship and not to his estate. As the opinion progresses other facts will be discussed and decisions cited which readily distinguish the instant case from that of Hill v. Hill, supra.
It must be conceded that since 1868 general original jurisdiction has been conferred on the district court as to all matters not otherwise provided by law. (G. S. 1961 Supp., 20-301.) But the probate code enacted by the legislature in 1939 made material changes in the law providing for administration of decedents’ estates.
The probate court under the provisions of the Kansas probate code is granted original jurisdiction and general powers with respect to certain definitely enumerated matters pertaining to the administration of decedents’ estates. (G. S. 1949, 59-301.) Included in the general grant of jurisdiction and powers to the probate court is contained both authority and direction to exercise such equitable powers as may be necessary and proper fully to hear and determine any matter properly before such court. (G. S. 1949, 59-301 [12].)
It was the intent and purpose of the framers of the Kansas probate code, and of the legislature which enacted it, to grant to the probate court exclusive original jurisdiction over all matters incident and ancillary to the control, management, administration, settlement and distribution of decedents’ estates, including the exhibition and establishment of claims and irrespective of whether those claims be denominated legal or equitable, except as to any matter over which the probate code expressly confers concurrent jurisdiction upon the district court.
Decisions construing the force and effect of the probate code enacted in 1939 and discussing the various provisions which support the foregoing statements are Foss v. Wiles, 155 Kan. 262, 124 P. 2d 438; Egnatic v. Wollard, 156 Kan. 843, 137 P. 2d 188; Burns v. Drake, 157 Kan. 367, 139 P. 2d 386; Gantz v. Bondurant, 159 Kan. 389, 155 P. 2d 450; Searight v. Chor, 170 Kan. 271, 225 P. 2d 118; and authorities cited in these decisions.
Language used in Egnatic v. Wollard, supra, which bears directly upon the facts in the instant case is as follows:
“. . . it has been definitely and finally determined that where a party has an adequate remedy for equitable relief in the probate court and that court is exercising its jurisdiction, such party may not invoke the jurisdiction of the district court. The rule announced simply determines the remedy and jurisdiction in the first instance. It denies a litigant no right based upon any theory, either legal or equitable, for if a claimant is dissatisfied with the ultimate outcome of his litigation in probate court the new code gives the district court on appeal the same general jurisdiction and power, as though the controversy had been directly commenced by action or proceeding therein and as though it would have had original jurisdiction of the action. (G. S. 1941 Supp., 59-2408 [now G. S. 1949, 59-2408].)” (p. 849.)
In addition to the cases cited in Egnatic v. Wollard, supra, for the above proposition, Asendorf v. Asendorf, 162 Kan. 310, 313, 176 P. 2d 535; and Hoard v. The Home State Bank, 176 Kan. 624, 272 P. 2d 1054, are in point.
The foregoing rule is fortified by the well-established rule that even in cases where there is concurrent jurisdiction, the court which first acquires jurisdiction retains it to the exclusion of another corut which seeks to assume it. (Egnatic v. Wollard, supra, including authorities cited therein; Charvat v. Moore, 167 Kan. 336, 339, 205 P. 2d 980; Searight v. Chor, supra; and Hoard v. The Home State Bank, supra.)
The following sections of the probate code relate to liens upon property of a decedent. G. S. 1949, 59-2239, known as the nonclaim statute, provides in part:
“. . . No creditor shall have any claim against or lien upon the property of a decedent other than liens existing at the date of his death, unless an executor or administrator of his estate has been appointed within one year after the death of the decedent and such creditor shall have exhibited his demand in the manner and within the time herein prescribed. . . .” (Emphasis added.)
G. S. 1949, 59-1303 reads:
“When a claimant holds any security for his demand, it may be allowed, conditioned upon the claimant surrendering the security or upon the claimant exhausting the security; it shall be allowed for the full amount found to be due if the security has been surrendered, or for any remaining amount found to be due if the security has been exhausted.”
See also the provisions of G. S. 1949, 59-2238 (Searight v. Chor, supra); G. S. 1961 Supp., 59-2238, indicating the change made by the legislature in 1951; G. S. 1949, 59-1301 and 59-1304 (In re Estate of Cline, 170 Kan. 496, 227 P. 2d 157).
It has been held that the last sentence of 59-2238, supra, now appearing as G. S. 1961 Supp., 59-2238 (3), was intended by the legislature to confer jurisdiction on the district court to render original judgments only on the kind and character of demands over which that court now retains original jurisdiction under the provisions of the probate code. (Searight v. Chor, supra, p. 275; and see Egnatic v. Wollard, supra, p. 856.)
The word “demands” as used in the nonclaim statute (59-2239, supra) was before the court for consideration in Burns v. Drake, supra. There an action was filed in the district court against a decedent’s estate, in process of administration, for specific performance of an oral contract, alleged to have been made by the decedent, to convey by deed or will real property which was part of the decedent’s estate. This was held to constitute a demand within the meaning of the nonclaim statute over which the probate court had exclusive original jurisdiction, and the trial court’s order sustaining a demurrer to the petition filed in the district court was affirmed. In the opinion it was said:
“We cannot agree that the word ‘demands’ refers solely to claims to be paid in money. In view of the fundamental purposes sought to be accomplished by the new code we think the legislature intended the term ‘demands’ as here used to be all-inclusive — to include all demands against the estate, whether legal or equitable in character, except in particular cases where the statute may expressly provide otherwise. All property in the estate is drawn into administration. Upon final settlement the court must determine the heirs, devisees, legatees, and by decree make proper assignment. The determination of an issue such as that here involved is as much a prerequisite to distribution as any money demand. To hold otherwise would defeat one of the purposes of the code — the plain legislative intent to unify administration and expedite the closing of decedents’ estates.” (p. 371.)
In Leidigh & Havens Lumber Co. v. Wyatt, 153 Kan. 214, 109 P. 2d 87, the court had before it the foreclosure of a statutory materialman’s hen (G. S. 1949, 60-1401). Upon review of the applicable provisions of the new probate code it was held, under the express statutory provision as it appeared in G. S. 1949, 59-2238, that action in the district court against the administratrix to foreclose the hen is considered a demand legally exhibited against the decedent’s estate from the time the original process is served on the adminis tratrix. The materialman’s hen constituted security for the plaintiff’s money demand against the estate. In the opinion, after quoting from 59-2239, supra, it was said:
“In the instant case the liens on this specific real estate existed prior to decedent’s death and the lien claimants were not precluded from enforcing their security by appropriate actions in the district court. . . (p. 218.) (Emphasis added.)
In Egnatic v. Wollard, supra, the court indicated that 59-1303, supra, was what the legislature had in mind when it authorized action in the district court under 59-2238, supra, as it appeared prior to the change in 1951. In the opinion the court went on to say:
“. . . If a claimant sees fit to surrender his security he may file his claim in probate court and have it allowed for the full amount. If he chooses to exhaust his security he may do so by an action filed in district court to foreclose his lien. If the property sold under that proceeding is insufficient to pay the full amount the district court is given the power to render a deficiency judgment for the remaining amount it finds to be due and such amount shall be considered a demand legally exhibited against the executor or administrator from the time of the original service of summons upon him.” (p. 854.)
In further discussing 59-2238, supra, the court said, applicable rules of statutory construction justified ihe conclusion that this section of the code applies solely to a situation where the code makes no express or adequate provision for the establishment of a demand in the probate court.
It will be noted from the foregoing language that no distinction was indicated between liens upon real property and liens upon personal property, or chattel mortgages. The only case which our research has disclosed concerning the enforcement of a lien on a decedent’s personal property against an administrator in the district court, while the administration of the decedent’s estate was pending in the probate court, is Grinnell State Bank v. Fellhoelter, 153 Kan. 554, 112 P. 2d 116. This action, however, did not arise under the new probate code. There the decedent was a shareholder in an insolvent bank, and an action was begun to recover for the so-called double liability imposed by statute (then G. S. 1935, 9-110) on stockholders of insolvent banks. By another provision of statute such liability became a lien on the property of the stockholder for its satisfaction (then G. S. 1935, 9-156). Under the old probate code it was held the district court had jurisdiction to maintain the action, allhough reference was made to the new statutory provision applicable to demands arising from or out of any statutory liability of a decedent in G. S. 1949, 59-2239.
Another rule to which our attention must be focused is expressed in the case of In re Estate of Thompson, 164 Kan. 518, 190 P. 2d 879, where numerous authorities are reviewed and classified as to whether jurisdiction of a matter concerning a decedent’s estate is in the probate court or in the district court. Reference is made to pages 522 and 523 which are incorporated herein by reference. Summarizing, the rule may be stated as follows:
Generally speaking, 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 jurisdiction of the matter and the action or claim must be filed in the probate court (In re Estate of Thompson, supra; Gebers v. Marquart, 166 Kan. 604, 608, 203 P. 2d 125; Rowe v. Childers, 169 Kan. 616, 219 P. 2d 1066; and In re Estate of Weaver, 175 Kan. 284, 287, 262 P. 2d 818); but when the purpose of an action or claim is to bring something into an estate of a decedent, that is, when an estate has a claim which its personal representative is attempting to enforce, the action is to be filed in the district court or some other court of competent jurisdiction (In re Estate of Thompson, supra; In re Estate of Weaver, supra; Coffey v. Shrope, 180 Kan. 621, 306 P. 2d 164; and Hildenbrand v. Brand, 183 Kan. 414, 327 P. 2d 887).
Turning now to the facts in the case at bar, the appellants are holders of a promissory note. They are seeking to establish the existence of an equitable mortgage on personal property based upon the promissory note and the letter from Eric E. Smith, the decedent’s attorney, to Dan B. Shields dated September 25, 1959. The letter says the decedent “has made the following arrangements in order to secure your position.” (Emphasis added.) These arrangements were: “Mr. Fink has delivered to this office an assignment of his interest in the Heim oil and gas lease located in Russell County, Kansas, and has instructed me to record the assignment in your name in the event of his death prior to his making full payment of the loan including interest.” (Emphasis added.)
The assignee’s name in the document, alleged to be an assignment, was left blank and it was not acknowledged by the decedent. It was never filed or recorded with the register of deeds of Russell County after the decedent’s death by Eric E. Smith as he wrote he was instructed to do.
Any mortgage on the decedent’s interest in the oil and gas lease in question, which is personal property, is subject to the Kansas chattel mortgage statute, G. S. 1949, 58-301, which insofar as material herein reads:
“Every mortgage or conveyance intended to operate as a mortgage of personal property, which shall not be accompanied by an immediate delivery and be followed by an actual and continued change of possession of the things mortgaged, shall be absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless the mortgage or a true copy thereof shall be forthwith deposited in the office of the register of deeds of the county in which the mortgagor resides, . .
In the absence of stipulations to the contrary, under G. S. 1949, 58-307, the mortgagee of personal property shall have the legal title thereto, and the right of possession. The right of the mortgagee to sell the property after condition broken is authorized by G. S. 1949, 58-309, in accordance with the conditions stated. (See Foy v. Comanche County, 69 Kan. 206, 76 Pac. 859; Watkins v. Layton, 182 Kan. 702, 324 P. 2d 130; and authorities annotated under the foregoing statutory sections.)
On the facts in the instant case the executrix has not only the possession but also the legal title to the personal property in question. The petition alleges the purported assignment has never been recorded and, not being acknowledged, is not subject to recording.
The appellants admit that neither the letter written by Smith “nor the facts and circumstances surrounding the transaction could be construed as a sale because it lacks the statutory prerequisites for a testamentary disposition.” Under G. S. 1949, 59-606, cited by the appellants, a testamentary document must be signed at the end by the testator, or some other person at his direction, and the execution must be witnessed by two or more competent witnesses who saw the testator subscribe to it or heard him acknowledge the instrument.
Whether the facts alleged in the petition herein give rise to an equitable mortgage is a question we leave open.
As we construe the allegations of the petition, and in particular the letter dated September 25, 1959, from Smith to Shields, there was no intention on the part of the decedent to give the appellants any interest in the oil and gas lease here in question prior to his death. In other words, the equitable lien here in question, if it exists at all, was not in existence at the time of the decedent’s death. The appellants admit in their brief: “Unless they take some action to establish their specific claim to the property, it is subject to sale to satisfy the claims of general creditors.” (Emphasis added.)
We construe the probate code, and the decisions interpreting it, to require the existence of a lien upon specific property of the decedent at the date of his death, before the Hen claimant is entitled to proceed in the first instance in the district court to exhaust his security. (G. S. 1961 Supp., 59-2238 [2]; G. S. 1949, 59-1303; and Leidigh & Havens Lumber Co. v. Wyatt, supra.)
Under 59-2239, supra, the probate court is given exclusive original jurisdiction concerning the establishment of liens which do not exist at the date of the decedent’s death. This section of the code provides in substance that no creditor shall have a lien upon property of the decedent, other than Hens existing at the date of his death, unless an executor or administrator of his estate has been appointed and such creditor shall have exhibited his demand in the probate court in the manner and within the time prescribed.
It may be said the facts in the instant case are somewhat analogous to the situation presented in Burns v. Drake, supra, where it was held the claimant should have proceeded initially in the probate court to estabHsh his claim for specific performance of an oral contract to convey by deed or will real property which was part of the decedent’s estate. There, as here, the claimant was attempting to get property out of the decedent’s estate by virtue of an oral contract made with the decedent in his lifetime.
Before the appeHants in the instant case are entitled to have the personal property in question subjected to the payment of their claim, they must first establish the existence of a Hen against such property. This is a contingent claim or demand. It is contingent upon a question of law, and if the matter is eventuaHy tried in the probate court, it may further prove to be contingent upon a question of fact. (See G. S. 1949, 59-2241.)
The wisdom of the legislature in granting exclusive original jurisdiction to the probate court regarding the establishment of Hens against property of the decedent, which are not in existence at the date of the decedent’s death, is indicated by the logic of the situation herein presented.
If the decedent’s estate is not insolvent, the assertion of the indebtedness of $12,000, evidenced by the promissory note, as a claim timely filed against the estate would probably be sufficient. But the appellants could, and in the event the estate is insolvent should, within time assert their claim to a Hen on the property in question, and thus assert their right, if estabHshed, to have the property subjected to the payment of the debt. The probate court under its equitable powers could hear the matter, upon compliance with G. S. 1949, 59-2237, and apply the provisions of G. S. 1949, 59-1303, 59-1304, and other applicable sections of the probate code, and make such orders as may be necessary to fully determine the matter and expedite administration of the estate. (See In re Estate of Cline, supra.) Under these circumstances the probate court is a proper forum in which the lien claimants could exhaust their security.
Here the property for which the appellants seek the appointment of a receiver in the district court is already in the hands of a fiduciary, the executrix of the decedent’s estate, who is subject to the direction of the probate court for the administration of the personal property in question. This amounts to a considerable savings in expense to the litigants.
In any event, should it appear in a proceeding pending in the probate court that a decision upon any question of which the probate court does not have jurisdiction is necessary to a full determination of the proceeding, the provisions of G. S. 1949, 59-2402, authorize transfer of the matter to the district court having appellate jurisdiction, which court shall proceed the same as though an action involving that question had been filed originally therein.
Under G. S. 1961 Supp., 59-2402a, demands over $500 in value, among other matters, may be transferred to the district court upon request of any interested party, and such issues shall thereupon be heard and determined in the district court as on appeal as provided by G. S. 1949, 59-2408. (G. S. 1949, 59-2402b.)
In conclusion, therefore, we hold the trial court properly sustained a demurrer to the petition filed in the district court of Russell County, Kansas, by the appellants, and the court did not err in its refusal to appoint a receiver.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
The appellant will be designated as the “bank” and the appellees as “Frozen Foods” or the “plaintiff.” Frozen Foods commenced this action based upon a breach of an implied contract to pay nothing out of its checking account except upon its valid order. The bank has appealed from the district court’s order overruling its demurrer to the plaintiff’s petition.
Frozen Foods alleged that it was incorporated on October 17, 1958, and that on October 24, 1958, it opened an active checking account with the bank under the name of Wichita Frozen Foods Company, Inc., with an initial deposit of $5,000, and submitted to the bank a resolution of the corporation as to authorized signatures as required by the bank, and delivered to it a signature card duly signed, which resolution and signature card were in the possession of the bank; that for a considerable period of time prior to October 24,1958, there existed in the bank the account of an entity of similar name known as “Wichita Frozen Foods Company” which firm was either a copartnership or corporation, the exact status unknown to the plaintiff but well known to the bank; that the bank knew and had knowledge, and its bank records so showed, that plaintiff corporation and the Wichita Frozen Foods Company were separate and distinct firms.
Frozen Foods further alleged that several months prior to the filing of its petition on October 19, 1961, it discovered from an audit made of its business affairs that the bank charged and deducted from its active checking account six checks of the Wichita Frozen Food Company amounting to $2,472.35; that the said six checks of the Wichita Frozen Food Company were written by that company on its own active checking account prior to October 24, 1958, but were charged and deducted by the bank against the plaintiff’s checking account after the opening thereof, and that the unauthorized deductions were reflected on monthly checking statements to Frozen Foods at the close of the months of October and November, 1958.
The petition further alleged that the bank by its monthly statements represented and stated thereby that each of said statements were true and correct statements of plaintiff’s checking account be tween the bank and Frozen Foods when the bank knew or could have known that the monthly statements for October and November, 1958, containing the checks of the Wichita Frozen Food Company, were not correct statements of Frozen Foods’ account for those months and that the said six checks, more fully described in Exhibit B attached to the petition, should have been charged to and deducted from the checking account of Wichita Frozen Food Company.
The petition further alleged that the disputed charges were made without valid order from Frozen Foods and that in accepting its checldng account, the bank impliedly contracted with Frozen Foods that it would pay nothing out of its checking account except on the plaintiff’s valid order; that the checks of the Wichita Frozen Food Company drawn on its own account, but charged to and deducted from Frozen Foods’ checking account by the bank without a valid order of plaintiff’s corporation was negligence on the part of the bank and its employees and was a breach of the implied contract.
The prayer was that plaintiff recover the sum of $2,472.35 together with 6 percent interest from November 4,1958, and for costs.
Exhibit A attached to the petition was a copy of Frozen Foods’ resolution dated October 17,1958, and showed that funds on deposit with the bank were subject to withdrawal on the signatures of either John G. Roe, president, or Charles Huffman, vice president, and countersigned by either Maurice Bruenger, secretary, or Robert Critzer, treasurer. Exhibit B listed the checks written by Wichita Frozen Foods Company which were charged to Frozen Foods’ account, and contained the date, amount, payee, signatures, date paid by the bank, and the date the checks were returned with monthly statements to Frozen Foods. The checks in question were signed by John G. Roe and Charles Huffman. Whether Roe and Huffman are the same persons whose names appear as president and vice president in Frozen Foods’ resolution and signature card which was delivered to the bank is not disclosed by the record. However, it is clear from the petition that Roe and Huffman, as officers of Wichita Frozen Foods Company, were not authorized to sign checks for the withdrawal of funds from Frozen Foods’ checking account. Moreover, for the purpose of this appeal, whether the checks drawn on the Wichita Frozen Foods Company’s account were signed by unauthorized officers of that company is immaterial.
The bank’s sole contention is that Frozen Foods’ claim falls squarely within the provisions of G. S. 1949, 9-1209, which reads:
“No bank shall be liable to a depositor for the payment by it of any altered, forged or raised check, or a check with an unauthorized signature, unless the depositor shall notify such bank within six months after the return to the depositor of the voucher or canceled check that the check so paid was altered, forged, raised or unauthorized.”
It argues that regardless of its negligence, the statute is applicable in any circumstance whereby a loss is sustained by a depositor by reason of a charge being made upon a check or checks bearing an unauthorized signature; that since the petition disclosed that the bank charged Frozen Foods’ account with another depositor’s checks, the signatures on the other depositor’s checks were unauthorized signatures of Frozen Foods, that is, while the principal signatory was affixed in accordance with Frozen Foods’ signature card on file with the bank, the counter-signatures were not, hence the signatures were “unauthorized” within the meaning of the statute, and since Frozen Foods failed to notify the bank within six months after the return of its canceled checks and monthly statements of its account the bank was relieved of liability. The contention is not easy to understand. It has the effect of excusing the bank of its negligence in charging a depositor’s checking account with checks drawn upon the account of another depositor.
The parties concede that the relationship between a bank and a depositor is that of debtor and creditor; that a bank is charged with knowledge of the depositor’s signature and pays an unauthorized check at its peril, and in legal contemplation such a payment is made out of the bank’s own funds and it has no right to charge a depositor’s account with the amount thereof; that under the doctrine of strict liability a bank is virtually an insurer of the validity of a depositor’s signature and must pay checks in strict accordance with directions of a depositor. (United Workmen v. Bank, 92 Kan. 876, 142 Pac. 974; Kansas City Title & Trust Co. v. Fourth Nat’l Bank, 135 Kan. 414, 10 P. 2d 896; Herbel v. Peoples State Bank, 170 Kan. 620, 228 P. 2d 929; 5 Zollman, Banks and Banking, § 3411 [1954].)
This brings us to the statute (G. S. 1949, 9-1209) and to the allegations of the petition. The statute was first enacted in 1911 (Laws 1911, Ch. 64, § 1) and was revised by the Commission to Revise the Statutes in 1923 (R. S. 1923, 9-171). It was repealed in 1947 (Laws 1947, Ch. 102, § 143) and re-enacted by the same legislature (Laws 1947, Ch. 102, § 58), and the words, “or a check with an unauthorized signature” were added. In Herbel v. Peoples State Bank, supra, the statute was examined and construed, and it was held that the bank was not liable to the depositor for the payment of forged checks from the depositor’s account where he failed to notify the bank within six months after the return of the canceled checks that the checks so paid were forged. Obviously, a check is forged within the meaning of the statute when the name of the depositor as maker is forged. It is altered or raised when the body as originally executed is changed or when the amount as originally executed is increased. We think the words “a check with an unauthorized signature” must be construed to mean something other than an altered, forged, or raised check, and was intended by the legislature to mean a check to which the depositor’s name as maker is signed by a purported agent without authority.
When the petition is carefully analyzed it alleges that Frozen Foods made a deposit with the bank and delivered the signatures of its officers on a signature card provided by the bank, who were authorized to withdraw funds of the plaintiff; that through the negligence of the bank’s employees, checks drawn upon the account of another depositor, that is, the Wichita Frozen Foods Company, were charged to and deducted from the separate checking account of Frozen Foods, and that despite the unauthorized deductions, the bank has never credited said account with $2,472.35 nor paid the plaintiff that amount.
The petition discloses no scheme by Roe and Huffman to draw checks on Frozen Foods’ account for their own purpose, or that they drew the checks upon Frozen Foods’ account and signed their names as purported agents without authority. On the contrary, the petition alleged that an implied contract existed between the bank and Frozen Foods and was breached by the negligence of the bank in charging the checks and deducting their amounts from plaintiff’s account.
No point is made that Frozen Foods cannot now maintain this action which was commenced approximately two and a half years after the canceled checks and statements were returned to it in October and November, 1958, and the bank was well advised not to make such a contention. (G. S. 1949, 60-306, Second; Kansas City Title & Trust Co. v. Fourth Nat’l Bank, supra, p. 245; Herbel v. Peoples State Bank, supra, p. 627).
We have examined Valley Nat. Bank of Phoenix v. Electrical Dist. No. 4, 90 Ariz. 306, 367 P. 2d 655 (1961), cited by the defendant. There, an employee of the district, without authority and before delivery to the bank, added his name on the district’s signature card as a person authorized to sign checks on behalf of the district. Thereafter he drew checks on the district’s account for his own purposes. Later it was discovered his signature was not authorized. The supreme court of Arizona correctly concluded that the provisions of a statute similar to our own were applicable to the employee’s “unauthorized” signature and barred recovery for noncompliance to the condition precedent on the part of the district to give the bank notice of the unauthorized payment within the six-months period. Obviously, that is not the case here.
Under the allegations of the petition G. S. 1949, 9-1209 is not applicable and the district court did not err in overruling the bank’s demurrer. | [
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The opinion of the court was delivered by
Fatzer, J.:
In this workmen’s compensation case the examiner found that the accident in which the claimant’s decedent was killed did not arise out of and in the course of his employment with respondent, and denied an award of compensation. Upon appeal and review of the record, the district court adopted the findings of the examiner as approved by the workmen’s, compensation director and denied an award in favor of the claimants. Hence, this appeal.
The parties stipulated to the usual preliminary features of a com pensation case such as employment, being under the Act, notice of the accident, demand for compensation, amount of wages; also, that the decedent, Edward R. Middleton, died in an airplane crash on December 19, 1960, in Johnson County, Kansas, and that the two minor children, claimants herein, were at the time of the accident total dependents of the decedent, the widow of the decedent having remarried. No point is urged as to the fact that decedent met with personal injury by accident, so, the serious question presented is the sufficiency of the evidence to sustain the district court’s finding that the accident did not arise out of and in the course of the employment.
The evidence disclosed that respondent, King Radio Corporation, Inc., was in the business of manufacturing and developing aircraft radio equipment. Edward J. King was president and principal stockholder, James R. Harris was vice president in charge of manufacturing with a background in accounting, Wallace Wiley was chief electrical engineer, and Edward R. Middleton was design engineer, working under Wiley’s direction in the Engineering Department.
Middleton was employed by respondent during the spring of 1960 and continued to work in that capacity until the date of his death. There was some discussion at the time he was being interviewed for employment by Wiley that it might be desirable from the standpoint of prestige if the engineers were pilots themselves. When Middleton was interviewed by King, there was discussion of flying in general but no discussion relative to Middleton becoming a pilot or taking flying lessons. Tire specifications of design engineer did not require that he be a pilot, and becoming a pilot or taking flying lessons was not a condition of his employment. There was no plan for respondent to have its engineers qualify as pilots, although the subject was discussed by the officers of the company. Middleton went up in an aircraft on one or two occasions to test equipment in flight, but did not act as pilot on those occasions. It was not feasible for an engineer to perform his duties as an engineer in flight and also act as pilot.
During 1960 Harris took flying lessons which were paid for by respondent. However, Harris discontinued his lessons in the fall without qualifying as a pilot. Respondent offered to pay for flying lessons for Wiley, but he refused to take lessons.
About two months after Middleton entered respondent’s employment, he asked King if respondent would pay for flying lessons for him as they were doing for Harris. King contacted Wiley, Middle- tons supervisor, and Wiley had no objection so long as the lessons would not detract from Middleton’s work. King and Wiley felt that perhaps a closer association would increase Middleton’s enthusiasm for his work which appeared to be somewhat lacking. King thereafter agreed that the company would stand the “financial cost of the flying lessons. He (Middleton) was to get his own textbooks and be on his own time, but so far as paying for the lessons, we would do so.” Harris called Skyway, Inc., and made arrangements for Middleton’s flying lessons. Skyway was selected on the basis of being most convenient. Subsequently respondent paid approximately $585 for Middelton’s flying lessons, which were continuing at the time of the fatal accident.
Middleton was unable to obtain physical clearance in Kansas City for flying, and was allowed to make a trip to Washington, D. C., on regular company business so that while there he could attempt to secure physical clearance for flying from the Federal Aviation Agency for a private pilot’s license, which approval was seemed.
After Middleton had commenced his flying lessons, he made one flight to Columbia, Missouri, on company business. He was advised by Harris not to take another similar trip he had planned because it was a violation of F. A. A. rules for a student pilot to take business flights.
■It was Middleton’s procedure to work from 7:30 a. m. to 4:30 p. m. on days when he took flying lessons, so he could get an early start on his flying. Normal company hours were from 8:00 a. m. to 5:00 p. m. On the day of the accident Middleton was at work sometime before 8:00 a. m. and left work at about 4:40 or 4:45 p. m.
In reviewing the record in a workmen’s compensation case our task is to determine whether there is any evidence which supports the judgment rendered, and if there is any evidence to support the judgment, it must be affirmed even though the record discloses evidence which might warrant the district court making a finding to the contrary (Kafka v. Edwards, 182 Kan. 568, 322 P. 2d 785; Allen v. Goodyear Tire & Rubber Co., 184 Kan. 184, 334 P. 2d 370; Heer v. Hankamer Excavating Co., 184 Kan. 186, 334 P. 2d 372). The rule applies with equal force whether compensation has been allowed or denied by the district court (Rorabaugh v. General Mills, 187 Kan. 363, 356 P. 2d 796).
At the time of the accident and death was Middleton performing a service required by his contract of employment, directly or incidentally? There was substantial evidence that he was not. He was hired to do electrical design work on a regular salary eight hours a day. He was neither required to take flying lessons or urged to take them to perform his actual or anticipated job, nor was there a company custom or practice that he do so. His job was on the ground in the laboratory. The lessons were taken on his “own time” —in the evenings, Saturdays and Sundays. Flying was not a requirement or a condition of his job, and on the evening of his fatal flight he was doing nothing for respondent. He took the lessons only on condition they did not detract from his work.
Claimants rely heavily on Blair v. Shaw, 171 Kan. 524, 233 P. 2d 731. We think it is not helpful to them. There, the “approved mechanics’ examinations” given annually by the Chevrolet Division of General Motors was so well established as to amount to a custom of employment; also, the Chevrolet mechanics expected to take the examination and knew that their employers expected them to do so. It was concluded the examinations and trips there involved were “incidental and actually a part of the decedents’ employment”; that they were “actually contemplated by the very employment itself.”
The phrase “arising out of” the employment points to the cause or origin of the accident and requires some causal connection between the injury and the employment. An injury arises out of the employment if it arises out of the nature, conditions, obligations, or incidents of employment (Pinkston v. Rice Motor Co., 180 Kan. 295, 302, 303 P. 2d 197, and cases cited).
There was no evidence that Middleton had a duty or was performing a duty for the company at the time of his accident and death. On the contrary, there was specific evidence by the president, vice president and chief engineer that he had no duties with respect to flying in connection with his regular hire. He was not acting within the scope of his employment when killed; his death did not follow as a natural incident from the work he was then employed to do, or have its origin in a risk connected with that employment.
The burden of proof was upon the claimants to show a causal connection between the conditions under which the work was required to be performed and the accident causing death. The district court found that they had not sustained that burden, and there was substantial evidence to support the finding.
The judgment is affirmed.
Wertz, J., dissents. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal in a divorce proceedings. In a previous appearance of this case before the supreme court (Hodge v. Hodge, 186 Kan. 361, 349 P. 2d 947) the trial court was affirmed in its order overruling defendant’s demurrer to plaintiff’s petition.
When our present case was ready for trial in the eighteenth judicial district, Sedgwick county, the assignment judge thereof proceeded to assign the trial of the cause to another judge of that judicial district. Plaintiff’s counsel sought a change of venue for the reason that he and the trial judge had had differences and he believed he would not be able to obtain a fair and impartial trial for his client. Counsel requested the assignment judge either to pass the case or assign it to another division of the district court for trial. The assignment judge announced to plaintiff’s counsel that the case had been regularly assigned for trial and it should be tried by the judge of the assigned division or the case could be dismissed without prejudice. Plaintiff’s counsel orally moved for dismissal of the case without prejudice and it was so dismissed by the assignment judge at the cost of the plaintiff. This appeal was perfected from the trial court’s order of dismissal of the action without prejudice.
The record shows another lawsuit was then filed and is now pending between the same parties covering the same subject matter in the same district court.
We have considered the record in its entirety and in our opinion the order appealed from was not a final order under G. S. 1949, 60-3303, and there is nothing here for appellate review.
The appeal, therefore, is dismissed. | [
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The opinion of the court was delivered by
Price, J.:
Under a stipulation of the parties, approved by this court, the above cases, which are actions to recover for personal injuries arising out of an automobile collision, were consolidated for purposes of appeal. It was further stipulated that only the case of Theodore Eugene Jobst, No. 42,824, be abstracted and briefed, and that the decision in such case would control and be considered as the decision in the other three cases.
The appeal is by two of the defendants from an order striking certain portions of their amended answer.
The question presented is whether, under the facts and circumstances disclosed by the pleadings, those defendants are entitled to plead the doctrines of “sudden emergency” and “rescue” as a defense to the action.
Highly summarized, the allegations of the petition are as follows:
The collision out of which this action arose occurred at about 8:15 o’clock on the evening of January 2, 1960, on a north-south blacktop county highway a few miles north of the city of Augusta. The defendant Hanks, an employee of defendant Butler Well Servicing, Inc., was driving his employer’s truck in a southerly direction. He brought the truck to a stop in the west traffic lane of the highway. The highway was twenty-four feet wide. The distance from the left side of the stopped truck to the east edge of the highway was approximately thirteen feet. He placed no flares, flags or other warnings alongside of or to the rear of his truck.
While Hanks was thus stopped on the highway defendant Bass approached from the south. When he came even with the Hanks truck Bass stopped his car in the east traffic lane just opposite the truck. The distance from the left side of Bass’s car to the west edge of the. highway was approximately twelve feet. While stopped in this manner, and without turning off his headlights, Bass engaged in a conversation with Hanks, who was standing near his stopped truck. So stopped, the truck and car completely obstructed the highway, and the headlights of the Bass car were left burning.
Very shortly thereafter an automobile, in which plaintiff was a passenger and which was being driven by his father, approached from the north. The father was blinded by the headlights of the Bass car, and, there being no flares or other warnings, his car crashed into the rear end of the Hanks truck, resulting in severe injuries to plaintiff, but which, for our purposes, need not be related.
Paragraph three of the amended answer of defendants, Butler Well Servicing, Inc., and Hanks, alleged that as Hanks was driving the truck south on the highway he noticed that a vehicle, operated by a person not a party to this action, had been driven off the highway and into the ditch. Hanks pulled his truck as far to the right as was possible, leaving the lights of his truck burning. It reasonably appeared to him that the persons in the ditched car were in serious condition and in need of immediate medical attention to prevent their death, and in stopping his truck he was attempting to save a life. While so engaged, defendant Bass approached from the south and brought his car to a stop. The car in which plaintiff was riding was visible for over a quarter of a mile as it proceeded southward toward the scene. Bass flashed his lights and signalled to plaintiff’s driver in an effort to warn him, but the driver proceeded down the highway at a high and dangerous rate of speed, and, failing to heed the warning, drove directly into the rear of Hanks’ truck at the very moment Hanks was attempting to save a life or lives of those persons in the ditched car, and that, under the circumstances, he had no time or opportunity to set out flares, and that the collision was solely and proximately caused by the negligence of plaintiff’s driver.
The amended answer also contained the following allegations as further defenses:
“Fourth: In the alternative, these defendants allege and state that plaintiff’s injuries were caused by the negligence of William E. White, Gary Devore and Susan Wright. . . .
“Fifth: These defendants allege and state that at all times material, defendant Hanks was acting in a sudden emergency not caused or created by his conduct, but caused by the conduct of William E. White, Gary Devore and Susan Wright. While so acting, he chose that course of conduct designed to prevent harm to the plaintiffs, his co-defendant Bass, the said White, De vore and Wright as well as any other users of the highway, and to save the life of said Devore.
“Seventh: At the very moment of the accident, defendant Hanks was attempting to rescue the said Gary Devore from death by bleeding which resulted from the injuries the said Devore had received in a prior accident. The blood was running down the neck of Gary Devore like jelly and it appeared to the defendant Hanks that if he did not come to the aid of the said Devore and rescue him, he would immediately and surely bleed to death. The defendant was not guilty of negligence as a matter of law for conduct performed in the attempt to rescue the said Gary Devore from sudden death.”
(From the foregoing it will be seen that White, Devore and Wright are the parties who were in the ditched automobile.)
Plaintiff moved to strike the above-quoted portion of the fourth paragraph of the amended answer on the ground that such allegation was a bald conclusion, was redundant and immaterial, and constituted no defense to plaintiff’s cause of action, and was highly prejudicial.
Plaintiff also moved to strike the above-quoted fifth paragraph of the amended answer on the ground that it did not state facts sufficient to constitute a defense, and that its allegations were redundant, immaterial and highly prejudicial.
Plaintiff also moved to strike the above-quoted seventh paragraph of the amended answer for the reason that other allegations of that pleading showed that Hanks was not involved in the prior accident which occasioned injury to Devore, who, it is alleged, he, Hanks, was trying to rescue, and that the conduct of Hanks, who came upon the scene of that accident after it had occurred, in attempting to rescue Devore, constituted no defense to the negligent conduct of Hanks as alleged in the petition.
This motion was sustained and the above-quoted portions of the answer were stricken.
From that ruling defendants, Butler Well Servicing, Inc., and Hanks, have appealed.
The status of defendant Bass in the action is not disclosed by the record, and he is not involved in this appeal.
Although defendants have appealed from and specify as error the entire order striking the above-quoted allegations from the amended answer, any question concerning such ruling with respect to that portion stricken from paragraph four appears to have been abandoned, for in their brief they state the questions to be:
“When plaintiff alleges defendant is negligent in stopping a truck on a highway, may defendant plead in defense to such charge of negligence—
“(a) the emergency doctrine based on an emergency arising when defendant came upon an injured person by the roadside needing immediate aid; and
“(b) the rescue doctrine based on defendant rescuing such injured person from danger of death at the time of the accident.”
G. S. 1949, 8-570, in substance provides that no person shall stop, park or leave standing any vehicle upon the paved part of the highway when it is practical to stop, park or leave such vehicle off such part of the highway, and that in every event a clear and unobstructed width of at least twenty feet of such part of the highway opposite such standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicle be available from a distance of 200 feet in each direction upon such highway. An exception is contained therein to the effect that it shall not apply to the driver of any vehicle which is disabled while on the paved portion of the highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving the disabled vehicle in such position.
Plaintiff contends that the mandatory provisions of the statute prohibit stopping on the paved, improved or main traveled portion of a highway except under the conditions therein set forth (Martin v. National Mutual Casualty Co., 169 Kan. 110, 114, 217 P. 2d 1055); that defendant Hanks was guilty of negligence per se not only in stopping his truck — which was not disabled — where he did, but also in failing to leave twenty clear feet to the left thereof for the passage of other vehicles, and that under the facts of the situation presented is not to be relieved of liability by relying on either the doctrine of “sudden emergency” or that of “rescue.”
Defendants, while inferentially — if not directly — conceding that the petition alleges facts which, if true, render them guilty of negligence per se in stopping the truck upon the highway in violation of the statute, contend that under G. S. 1949, 60-710, they are permitted to plead as many defenses as they may have; that in addition to pleading their version of the facts regarding the collision they should be permitted to plead the specific defenses of “sudden emergency” and “rescue” in an effort to modify the rule making violation of a statute negligence per se, and that as a result of the order striking those defenses they will be precluded from asserting such issues and introducing evidence in support thereof upon the trial of the cáse.
As pointed out in plaintiff’s brief, defendants’ version of the facts of the collision, as alleged in paragraph three of their amended answer, and which is summarized above, remains in that pleading and was not stricken. That being the case, defendants are not to be deprived of their right to introduce evidence of those facts.
The theory and rule of the doctrine of “sudden emergency” is that one who, in a sudden emergency, acts according to his best judgment, or one who, because of want of time in which to form a judgment, omits to act in the most judicious manner, is not chargeable with negligence; that one so confronted is not held to the accuracy as would be required of him if he had time for deliberation, and if he exercises such care as an ordinarily prudent man would exercise when confronted by a like emergency, is not liable for an injury which has resulted from his conduct, and that failüre to exercise the best judgment in an emergency created by another person is not necessarily negligence even though the error of judgment has results which are lamentable from the standpoint of injurious consequences to others. (Metzinger v. Subera, 175 Kan. 542, 547, 548, 266 P. 2d 287; Meng v. Penner, 179 Kan. 789, 792, 793, 298 P. 2d 246, and the numerous cases cited therein.)
In this connection defendants argue that violation of a statute or rule which would be negligence in ordinary circumstances may be excused under the emergency doctrine, and that when Hanks suddenly came upon the car in the ditch with its severely injured occupants, he was confronted with an “emergency” and acted in the same manner as other ordinary reasonable-minded persons would have acted under the same circumstances.
We feel compelled, however, to agree with plaintiff’s contention that under the circumstances of the situation Hanks was not confronted with a “sudden emergency” within the meaning of the doctrine and the many authorities dealing with it. The one-car accident had already occurred before he came upon the scene. That accident was, so to speak, an “accomplished fact.” In no sense of the word was Hanks in a position of imminent peril involving danger by impending accident calling for instantaneous exercise of judgment on his part. The most that can be said of his conduct is that he was merely engaged in rendering aid and assistance to persons already injured. Under the allegations of the pleadings we believe that it was not error for the trial court to strike the defense of “sudden emergency,” as such, from the amended answer.
With respect to their defense based upon the doctrine of “rescue” defendants take substantially the same position as that urged concerning the defense of “sudden emergency.”
Because of the high regard placed by the law on human life, the doctrine of “rescue” — sometimes referred to as the “humanitarian” or “Good Samaritan” doctrine — has been developed over the years, and the principle of it is that one who sees a person in imminent and serious peril through the negligence of another cannot be charged with contributory negligence, as a matter of law, in risking his own life or serious injury in attempting to effect a rescue, provided the attempt is not recklessly or rashly made. In other words, in attempting to save the life of another, one is justified in exposing himself to danger in a manner that under other circumstances would deprive him of legal redress for injuries sustained. (65 C. J. S., Negligence, § 124, p. 736; 38 Am. Jur., Negligence, § 228, p. 912; Smith v. Ice and Delivery Co., 117 Kan. 485, 232 Pac. 603; Parnell v. Security Elevator Co., 174 Kan. 643, 258 P. 2d 288; Brock, Administrator, v. Peabody Cooperative Equity Exchange, 186 Kan. 657, 352 P. 2d 37.)
As will be seen from the above authorities the “rescue” doctrine has application where the one attempting the rescue seeks to recover damages for his own injuries received while undertaking the rescue. We believe defendants seek to apply the doctrine to a situation where it has no application. Defendant Hanks was not injured and he is not attempting to recover for injuries sustained by him in his rescue efforts, and under the allegations of the pleadings it was not error for the trial court to strike the defense of “rescue,” as such, from the amended answer.
The judgment in each of the four cases is affirmed. | [
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The opinion of the court was delivered by
Jackson, J.:
This is an original proceeding brought by the petitioners for a writ of habeas corpus. The petitioners were each convicted of first degree murder on four counts in the district court of Finney county and the jury assessed the death penalty on each count. Just a year ago, petitioners’ appeal from the above convictions came on for decision in this court. (State v. Hickock & Smith, 188 Kan. 473, 363 P. 2d 541.)
The court-appointed attorneys filed motions for rehearing as to the above decision, but immediately the court began to receive letters from the petitioners complaining about the court-appointed counsel. Soon the court was informed that counsel had been discharged.
In a short time petitioners were writing to various legal' aid groups in Kansas seeking counsel. Letters reached the chairman of the legal aid committee of the Kansas Bar Association alleging grave injustices and need for counsel. The committee of the Wichita Bar Association also received letters and the two chairmen had some consultations. The Wichita committee suggested Russell Shultz, Esquire, of Wichita as a suitable person to investigate the situation. At this point, Mr. Shultz applied to this court for a delay in the disposal of the motion for a rehearing. The court, under the circumstances, granted the delay with the request that Mr. Shultz file with the court a copy of his report to the Kansas Bar Committee.
The report was filed in the early fall, and seemed to have some basis for showing that petitioners Hickock and Smith had not received a fair trial. This showing disturbed this court and it was determined that we would appoint Mr. Shultz as attorney for petitioners to bring an original proceedings in habeas corpus.
It was necessary to bring the new proceeding in habeas corpus since it was thought there was a possibility of discovering matters outside of the record in the criminal proceeding.
The court was greatly pleased when the Honorable Walter G. Thiele, now on retirement after twenty-four years as an outstanding member of this court, consented to act as our commissioner in this matter and to take the evidence in this proceeding. It should be noted that Justice Thiele retired as Chief Justice being at that time the Justice with the longest period of continuous service on the court and therefore Chief Justice (State Constitution, Art. 3, sec. 2).
Justice Thiele was able to hold the required sessions in Finney county and at the penitentiary during the month of February of this year and the Commissioner’s report is set out below. We have taken the opportunity of setting out certain authorities supporting the conclusions of law.
It will be noticed that Mr. Shultz has given of his time to represent the petitioners and argued this matter as shown above. Hence, we were surprised to receive a motion from petitioner Smith shortly before the hearing of this case in which Mr. Shultz was criticized. Petitioner Smith asked to be allowed to be represented by a certain inmate of the penitentiary instead of by Mr. Shultz. Only members of the bar are permitted to represent clients in this court. Therefore, the request was denied.
The Commissioner’s report was as follows:
“REPORT OF COMMISSIONER
“Pursuant to the order of the Supreme Court of the State of Kansas made January 15, 1962, appointing Walter 'G. Thiele as Commissioner of the Court in the matter of the Application of Richard Eugene Hickock and Perry Edward Smith for a writ of habeas corpus, for the purpose of hearing the evidence in support of the application and against the granting thereof, and making suggested findings of fact and conclusions of law, your Commissioner did, after taking the required oath, and pursuant to the above order, commence hearing the evidence offered by the petitioners in support of their application and by the respondent in opposition thereto, at Garden City, Kansas, on February 13, 1962, adjourned that hearing and heard further evidence at the Kansas State Prison, in Lansing, on February 15, 1962, and adjourned that hearing and completed the taking of testimony at Garden City on February 19, 1962, at which time the petitioners and the respondent rested and submitted the matter to the Commissioner, who then ordered the petitioners and the respondent to file with him their suggested findings of fact and conclusions of law on or before March 5th, 1962, and if either party deemed it necessary to comment on the proposed findings or conclusions, report of that to be submitted on or before March 10, 1962, which order has been complied with by the petitioners and by the respondent. Consideration of the testimony and of the documentary evidence submitted has resulted in the following suggested findings of fact and conclusions of law.
“FINDINGS OF FACT.
“I.
“On March 29, 1960, as the result of a joint trial, Richard Eugene Hickock and Perry Edward Smith were each convicted on four counts charging murder in the first degree, and were later sentenced to death and ordered committed and delivered to the Warden of the Kansas State Penitentiary for execution of the sentences against them and they were taken to the Penitentiary. On appeal to the Supreme Court the judgments were affirmed in an opinion filed July 8, 1961, reported in State v. Hickock & Smith, 188 Kan. 473, 363 P. 2d 541.
“On December 3, 1961, Hickock and Smith 'filed their joint application in the Supreme Court for a writ of habeas corpus to secure their release from idle custody of the Warden of the Kansas State Penitentiary. On January 15, 1962, the Supreme Court made its order appointing Walter G. Thiele its Commissioner in the case to hear the evidence, make suggested findings of fact and suggested conclusions of law, and report to the Court, and this Report is in conformity with that order.
“II.
“The evidence and the circumstances of its taking, included the following:
“At the commencement of the hearing, counsel for the petitioners and counsel for the respondent agreed to the introduction in evidence of
(a) The complete record of the trial in the District Court of Finney County of the criminal action of the State of Kansas v. Richard Eugene Hickock and Perry Edward Smith, Defendants, No. 2322, and the transcript of the record of the proceedings had in the District Court and filed in the office of the Clerk of the District Court. Subsequently, by stipulation of the parties, there was received in evidence (h) a transcript of the proceedings had before M. C. Schrader, Judge of the County Court of Finney County, to acquaint the defendants with the charges against them and to give them the opportunity to have a preliminary hearing; (c) a transcript of the proceedings had in the Finney County District Court on the hearing of the defendants’ motion for a new trial at which time die motion was overruled and the defendants sentenced; (d) certain photographs, newspapers, excerpts from newspapers on reproduc tions thereof, letters and copies of letters admitted for restricted purposes; and (e) the oral testimony of witnesses at Garden City and the Kansas State Penitentiary, all of which has been transcribed.
“HI.
“At the opening of the hearing, the Commissioner called attention of the petitioners to the fact their petition does not specifically and with particularity allege why they contended they had not been offered a constitutional fair trial and asked for an outline of what they proposed to show and was informed by counsel that he was not certain what might be shown and it was a matter of calling witnesses to determine whether there had been a fair trial, and counsel was then and at later times informed he would have every opportunity to present any evidence that bore on the question. The oral evidence was then received. Because of the above stated facts, much testimony was received covering matters considered by the Supreme Court in its opinion on the appeal from the conviction as it appears in State v. Hickock & Smith, supra, or which should have been urged on appeal for any bearing it might have on the fundamental question as to whether petitioners had been afforded a constitutional fair trial. At the concluding second hearing in Garden City, petitioners stated they had nothing further to add. The respondent then offered some rebuttal testimony and rested. The Commissioner then stated that strict order and proof had not been followed and that if petitioners or the respondent had any further evidence it would be received. After recess granted for their consideration of the situation, both the petitioners and the respondent rested except for some newspaper copies to be furnished under stipulation, and the Commissioner took the cause for consideration and determination.
“IV.
“The homicides were committed on November 15, 1959, and immediately thereafter there was considerable feeling of fear and danger of further crimes of similar nature. On December 30, 1959, the petitioners were arrested in Las Vegas, Nevada, and thereafter the above feeling dissipated to a great extent. The petitioners were returned by automobile to Garden City, Kansas, arriving there about 6 o’clock p. m. on January 6, 1960. On the afternoon of that day a crowd of about three hundred people had congregated on the court house lawn. The Jail was in the upper part of the courthouse. By the time of the arrival of the petitioners the crowd had dwindled to about twenty-five citizens and a number of newspaper people. Various witnesses described the crowd as curious, congenial or jovial and that there were no demonstrations against the petitioners. There is no evidence as to conditions between January 6, 1960, and the date of the trial which began on March 22, 1960. At the trial there were no demonstrations against the petitioners or otherwise and the trial was described as orderly. The petitioners’ inferred, rather than specific, complaint that there was an unfair and hostile atmosphere toward the petitioners from the date of their arrival and during the trial is contrary to the record, and not sustained.
“V.
“After the arrest of the petitioners in Las Vegas, Nevada, and before they were returned to Kansas, the petitioners made confessions, admissions and statements to the officers in the course of which they detailed their actions in committing the homicides, and the disposal they had made of the murder weapons and other articles used by them, and of a radio and pair of binoculars taken by them from the premises where the homicides were committed. It was not contended at the trial, nor was it contended at the instant hearing, that the confessions, admissions and statements were not true or that they were obtained by duress, threats, promises of leniency or other improper means. The truthfulness of the confessions was corroborated by the finding of shotgun shells, tape and rope at a place indicated by the petitioners, of the shotgun and knife at another place indicated by the petitioners and by the recovery of the radio and binoculars from the person to whom petitioners said they had sold them.
“VI.
“On January 7, 1960, the petitioners were taken before M. C. Schrader, Judge of the County Court of Finney County, to acquaint them with the charges filed against them. The warrant against Hickock was read to him and he was asked if he understood the charges against him, and was told the purpose of bringing him before the court was formally to acquaint him with the charges and to give him a preliminary hearing if he so desired; that a preliminary hearing is one in which the state must produce evidence to cause the court to find that a crime had been committed and there was probable cause for believing the proper party had been charged, and if so proved, to bind him over to the district court for trial, and if the state failed to make such proof, the defendant may be discharged. Hickock was asked if he was prepared at the time to elect whether he wished a preliminary hearing or wished to waive, and he answered that he would waive preliminary hearing. He stated the county attorney had advised him of his right to counsel and he understood he had such right.
“Similar proceedings were had with respect to Perry Edward Smith, except there was no reference to counsel, and he also waived a preliminary hearing.
“VII.
“Petitioners were brought before the District Court of Finney County for arraignment on January 8, 1960. At the hearing Hickock stated he was twenty-eight years of age, was asked if he had legal counsel and answered he did not and had no funds to employ counsel and that he desired the court to appoint counsel for him; that he was not acquainted with any local attorney. The trial court appointed Mr. Harrison Smith to represent Hickock. Immediately following Perry Edward Smith stated he was thirty-one years of age; that he had no legal counsel and no funds to employ any and that he desired the court to appoint counsel for him, and that he did not know any local attorney, and the trial court appointed Mr. A. M. Fleming as his counsel.
“At the times of their appointment, Harrison Smith had been an admitted practicing attorney for twenty-two years, and A. M. Fleming had been an admitted practicing attorney for thirty-nine years.
“VIII.
“After their appointment as counsel as found in Finding VII, the county attorney made available to them all of the evidence then available to the state, including a written form of confession of Perry Edward Smith, which was not signed by him and which was not introduced in evidence at the later trial, and the written confession of Hickock, which was introduced at the trial. The attorneys also had for their use whatever their clients said to them.
"Petitioners’ contention that their counsel were remiss and did not competently and adequately represent them in that counsel did not, after their appointment, seek to have a preliminary examination for petitioners, cannot be sustained. The petitioners were fully informed as to their rights to have a preliminary hearing by the judge of the county court, stated they understood the explanation, and each was aware of what he was doing. Assuming a preliminary hearing could have resulted from any action taken by the court appointed counsel, no purpose would have been served for counsel was fully informed of the proof then available to the state, which was all that a preliminary hearing could have disclosed.
“X.
“Petitioners’ contention that their counsel were remiss and did not completely, fully and ably represent them, is based on their own testimony that except at the times they were together in open court in connection with hearings preliminary to the trial, counsel had consulted with them not more than four times concerning their defense. Other testimony shows that counsel consulted with their clients separately and on occasions together, fifteen or more times not counting appearances in court, and discussed with them the matters of change of venue, joint or separate trials, and their defenses. The conferences were each more than thirty minutes in time and one conference between Plickock and his attorney lasted about four hours. Petitioners stated they had had conferences about change of venue and joint trial. Your Commissioner believes the testimony last mentioned and finds that the petitioners’ contention is not sustained by the evidence.
“XI.
‘Tetitioners’ contention that their counsel did not competently, fully and ably represent them and were remiss in their duty to them in not seeking a change of venue is contrary to the weight of the evidence and is not sustained. At conferences between petitioners and their counsel there was discussion of the fact that there had been a series of sermons and speeches in pulpits and public places in Finney County decrying against capital punishment; that tihe senior Clutter had been engaged in some civil litigation for damages in which he did not prevail; that each of counsel was well known in Finney County, and that these conditions might not prevail in some other county to which the case might be sent, and it was the opinion of counsel that a fair trial would be had in Finney County. As a result of such conference, it was agreed that no change of venue should be sought. Hickock’s father, when informed of the situation agreed thereto. There is no evidence that counsel did not exercise their best judgment in the situation.
“XII.
“Petitioners’ contention that their counsel was remiss and did not competently, fully and ably represent them in not demanding separate trials for them is based solely on their own testimony that they had not agreed to be tried jointly. The facts are the petitioners were charged jointly in one information and that on February 6, 1960, a severance had been granted and the case against each defendant set for March 22, 1960, with the trial of Perry Edward Smith to be held first. On March 1, 1960, the state asked for and received authority to endorse on the information the names of twelve persons, including Richard Eugene Hickock and Perry Edward Smith, as state’s witnesses. At a conference later between the petitioners and their counsel, the possibility that one of the accused defendants might be called and might be a potential witness against the other was discussed. In view of the setting of the cases, Harrison Smith was fearful that when Perry Edward Smith was tried first he might be a potential witness against his client Hickock. Fleming consulted his client who replied that they were charged together and should be tried together. With knowledge of the petitioners and their respective counsel as to the nature of the state’s evidence to support the allegations of the information, a joint trial was agreed on and the trial court was so advised. Hickock’s father was also advised and agreed. The petitioners’ contention is contrary to the testimony and is not sustained.
“XIII.
“On March 2, 1960, on motion of defendant petitioners the trial court quashed the panel of jurors then existing and called a new panel of one hundred fifty and no complaint is made thereof. Defense counsel made an intensive examination into the background of each of the potential jurors in preparation for trial. At the trial no stenographic record was made of the voir dire examination, it not being required by statute. The practice followed in Finney County District Court and in other district courts of that section of the state was that such a record is not made except on request. There was no request made. As is found later, all of the jurors who served at the trial, were called as witnesses in the present hearing and were examined. It is found that the petitioners were not prejudiced by the failure of their counsel to demand that a stenographic record be made of the voir dire examination, nor because such a record was not made.
“XIV.
“At the trial in the district court forty-five prospective jurors were examined, some of whom were challenged for cause and excused. The state exercised three peremptory challenges and the petitioners seven, leaving twelve as the regular panel. Six more men were called into the box to obtain two alternate jurors, and two were chosen. Their services were not required and they are not noticed further. Petitioners contend that the jury panel which tried the criminal action included some who should have been excused under G. S. 1949, 62-1409, because they had formed or expressed an opinion on the issues. In support of that contention petitioners offered in evidence a copy of the “Garden City Telegram” on March 23, 1960, which contained an article headed “Here’s Jury Rundown,” listing each juror, stating who he was, and listing single statements attributed to some of those named. The article’s content is obviously incomplete. It is not noticed further for no witness was produced to testify to the accuracy of the matter contained or that the statements attributed to jurors in the articles were in fact made.
“In the present hearing, petitioners called as witnesses all of the members of the panel of the jury at the trial and examined each not only as to questions asked him and answers made at the trial, but also as to whether, at the time of the trial, any one of them had formed or expressed any opinion as to the guilt or innocence of tire petitioners (defendants), or for any other reason was not a fair and impartial juror. It is found from the evidence adduced that although the jurors had some knowledge of the crimes charged, and some of them knew the senior Clutter, no one of them had formed or expressed an opinion as to the guilt or innocence of the accused, or either of them, prior to the close of the trial, and each one asked the question stated he was able to render a fair and impartial verdict on the evidence introduced, and did so. There was no testimony disputing the answers made at the hearing before the Commissioner. It is found that the contention one or more of the jurors was disqualified is not sustained by the record.
“XV.
“No complaint was made that at their trial the accused petitioners were deprived of calling any witness they wished, or that they were deprived of asserting any defense they or either of them had and they do not now contend that they did not have a full and complete hearing at their trial except in the two following instances. Petitioner Hickock testified he believed the issue of his sanity should have been presented. The answer is that it was. See State v. Hickock & Smith, supra. Petitioner Perry Edward Smith testified he told his attorney he felt under duress 'not under duress of any physical violence but under mental duress.’ It is not made to appear just what the statement meant or what could have been asserted in the trial court with respect thereto.
“XVI.
“At the hearing before the Commissioner, no complaint was made that any competent evidence was available and not asserted by counsel for petitioners.
“XVII.
“There was no testimony of any practicing attorney or of any person learned in the law that either of the court appointed attorneys A. M. Fleming and Harrison Smith, did not completely, ably, competently and adequately represent their clients or that they or either of them committed any act, either of commission or omission, to the prejudice of their respective clients.
“XVIII.
“In the manner provided by statute, counsel for the defendants perfected an appeal from the judgments of conviction and sentences thereunder to the Supreme Court of the State of Kansas. Harrison Smith, attorney for Hickock, became the County Attorney of Finney County in January, 1961, and shortly thereafter resigned as the court appointed attorney for Hickock and Dale H. Corley, an attorney of Garden City, was appointed in his stead. There is no complaint that either Corley as attorney for Hickock or Fleming as attorney for Perry Edward Smith were remiss in any manner in prosecuting the appeal.
“XIX.
“The Commissioner has, in addition to the specific complaints above considered, examined and considered the entire record cumulatively and it is found that the whole record discloses no facts that warrant any conclusion of fact that the petitioners or either of them were deprived of a fair trial or were denied due process of law under the Constitution of the United States or the Constitution and laws of the State of Kansas.
“CONCLUSIONS OF LAW
“I.
“In a proceeding for a writ of habeas corpus, it is the burden of the applicant to establish a ground which warrants the relief he seeks.”
(Scott v. Hudspeth, 171 Kan. 320, 232 P. 2d 464, syl. ¶ 4. Hightower v. Hand, 186 Kan. 377, 379, 350 P. 2d 31.)
“II.
“Due process under the Fourteenth Amendment to the Constitution of the United States does not require that a prospective juror in a criminal case be totally ignorant of the facts and issues involved, and the fact he may have heard thereof and formed a tentative opinion is not sufficient to rebut the presumption of his impartiality if he can put aside his impressions and render a verdict based on the evidence presented at the trial.”
(State v. Spaulding, 24 Kan. 1; Irwin v. Dowd, 366 U. S. 717, at 756, 6 L. Ed. 2d 751, 81 S. Ct. 1639.)
“III.
“G. S. 1949, 62-1409, providing it shall be good cause for challenge to a juror that he has formed or expressed an opinion on the issue or any material fact to be tried, has no application to a prospective juror who testifies that he has not formed or expressed such an opinion.”
(State v. Hooper, 140 Kan. 481, 497, 37 P. 2d 52; State v. Spaulding, 24 Kan. 1.)
“IV.
“Counsel appointed by the district court to represent an indigent defendant in a criminal action, owes to his client the duty to act diligently, faithfully and honestly in behalf of the client, but where the proof shows only a situation where honest exercise of discretion is involved, it may not be held counsel was remiss or that he did not fully and adequately represent his client in the absence of proof of bad faith.”
(Miller v. Hudspeth, 164 Kan. 688, 192 P. 2d 147; Trugillo v. Edmondson, 176 Kan. 195, syl. ¶ 2, 270 P. 2d 219; Cox v. Hand, 185 Kan. 780, 347 P. 2d 265.)
“V.
“The fact that two persons, jointly charged in one information of the commission of crimes in which both parties participated were, under the circumstances set forth in the findings of fact, tried together, does not entitle either, as a matter of law, to a writ of habeas corpus.”
(Levell v. Simpson, 142 Kan. 892, 893-894, 52 P. 2d 372; In re Light, 147 Kan. 657, 78 P. 2d 23.)
“VI.
“No ground has been established for the issuance of a writ of habeas corpus on the part of either of the petitioners, and the writ prayed for should be and is denied.
“The Commissioner further reports that he has delivered to the Clerk of the Court the transcript of the record in State v. Hickock, No. 42,068, in this court, the transcript of the testimony heard by him at Garden City oh February 13th and February 19th, 1962, the transcript of the testimony heard by him at the Kansas State Penitentiary on February 15th, 1962, the transcript of proceedings before M. C. Schrader, Judge of the County Court of Finney County, when the accused petitioners were given an opportunity to have a preliminary hearing, the transcript of the proceedings had in the District Court of Finney County on the motion for a new trial and the entry of judgment against the defendants, the exhibits and documents received in evidence and delivered to him, and the praecipe for subpoenas, the subpoenas and returns thereon, and the statutory oaths of the court stenographers.
“A statement of the costs and expenses, so far as they have come to the attention of the Commissioner, will be separately reported at a later date.
“Your Commissioner asks that his Report be examined and approved.
“Dated at Topeka, Kansas, March 20, 1962.
/s/ Walter G. Thiele, Commissioner.
“Amended Report of Commissioner.
“Comes now Walter G. Thiele, the Commissioner heretofore appointed in the above entitled cause, and shows that on March 20, 1962, he filed his Report of proceedings theretofore had. On the same date, Russell Shultz, attorney for the petitioners, mailed to C. Richard Foth, Assistant Attorney General, attorney for the respondent, twenty-two exhibits, all being excerpts from the Garden City Telegram, and asked that Mr. Foth examine them and advise him of any objections, the ones not objected to to be filed with the Commissioner. A copy of Mr. Shultz’ letter to Mr. Foth was delivered to the Commissioner who directed Mr. Foth to reduce to writing any objections he might have to the exhibits or any of them, and to deliver all of the exhibits and any objections made to the Commissioner for consideration. That direction has been complied with, and the exhibits and objections, which have been filed with the Clerk of the Court, have been examined and considered by the Commissioner, who reports to the Court as follows: The exhibits above referred to include twenty-two excerpts from the Garden City Telegram. There is no proof as to the truth and accuracy of the statements contained in the exhibits and the respondent objects to their being received in evidence if the purpose is to prove the truth of the statements. That objection is sustained. The exhibits are received, however, for the purpose of determining whether their publication deprived the petitioners of a constitutional fair trial. The result is that the statement in Finding IV of the Report of the Commissioner filed March 20, 1962, that ‘There is no evidence as to conditions between January 6, 1960, and the date of the trial which began on March 22, I960,’ is no longer accurate, and your Commissioner suggests that the quoted statement and the following portion of Finding IV be stricken out and the following substituted therefor.
“AMENDMENT TO FINDING IV.
“There is no evidence as to conditions between January 6, 1960, and the date of the trial which began on March 22, 1960, except twenty-two excerpts from the Garden City Telegram of which eleven appeared in January, 1960, issues, five in February, 1960, issues and six in March, 1960, issues. There was no evidence as to how widely the Telegram was circulated. The various excerpts are in the nature of a running account of what transpired from the time of the arrest of the petitioners in Las Vegas, Nevada, their confessions, their return to Garden City, their waivers of preliminary hearings, their arraignment in the district court, the appointment of counsel for them and of various matters in the district court preceding the trial which commenced on March 22, 1960. A reading of the excerpts discloses a factual recital, and there is no inflammatory language tending to prejudice the petitioner defendants in their right to a fair and impartial trial. The Commissioner further finds that the publications above mentioned and their effects on a constitutional fair trial must be measured also by the other circumstances preceding and during the trial and set forth in other findings. Aside from the newspaper publications there is no evidence of any demonstrations against the petitioner defendants either preceding or at the trial, and the trial itself was described as orderly. The petitioners’ inferred, rather than specific, complaint that there was widespread unfair, hostile and prejudicial atmosphere toward the petitioners from the date of their arrival in Garden City and during the trial, is contrary to the evidence and is not sustained.
“Your Commissioner asks that the Amended Report be examined and approved and that the suggested Amendment to Finding IV of his original report be ordered made.
“Dated at Topeka, Kansas, this 4th day of April, 1962.
“/s/ Walter G. Thiele, Commissioner”
We may observe that in an original proceedings where a commissioner has been had to take testimony, the findings of the commissioner upon the testimony are advisory only and the ultimate weight of the evidence rests with the court. (State, ex rel., v. Buchanan, 142 Kan. 515, 51 P. 2d 5; State, ex rel., v. Harvey, 148 Kan. 166, 80 P. 2d 1095; State, ex rel., v. Schmitt, 174 Kan. 581, 585, 258 P. 2d 228.)
We have fully considered the whole record before the commissioner and it is our firm conviction that the commissioner’s report gives an accurate summary of the testimony taken by him and that his conclusions of law based on the record are entirely correct.
Therefore, the findings of fact and conclusions of law of our commissioner are hereby approved, adopted and made a part of this opinion.
We cannot help but point out one matter in the argument of the petitioners which seems overstressed. The statement is made that all jurors who did not believe in capital punishment would be challenged and removed from the jury. Yet, counsel for petitioners may well have thought that even those who said they were not against capital punishment might well be influenced by the campaign of the churches in Finney county against the death penalty. Certainly, the attorneys cannot be said to be deceitful if they placed some hope in such a result.
The newspapers of Kansas did have considerable coverage of the crime and the trial. In the United Kingdom such coverage would, as we understand it, be subject to contempt proceedings, which, at the present time, our constitutional law forbids. As in any sensational case of this kind, the newspapers all over the state carried the stories and there would be question about jurors in any county in Kansas as feeling was not limited to Finney county. We do not think it was unreasonable for the court appointed counsel to believe that defendants could have a fair trial in Finney county — in fact, we believe they did have a fair trial.
To requote the commissioner: No ground has been established for the issuance of a writ of habeas corpus on the part of either of the petitioners, and the writ prayed for should be and is denied. It is so ordered. | [
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|
The opinion of the court was delivered by
Price, J.:
This is an appeal from an order of the district court of Leavenworth county denying an application for a writ of habeas corpus.
In March, 1958, the appellant here, John Byers, was placed on trial in the district court of Neosho county on charges of grand larceny, in three counts. He was represented by counsel throughout the trial and was convicted on each of the three counts. The state, following notice to Byers of its intentions, introduced evidence of two prior convictions of armed robbery. Accordingly, under the habitual criminal statute (G. S. 1949, 21-107a), Byers was sentenced to confinement in the state penitentiary for a term of fifteen years on each of the three counts — the sentences to run consecutively.
While so confined Byers filed in the probate court of Leavenworth county an application for a writ of habeas corpus, setting forth a number of alleged errors in his trial in Neosho county. Following a hearing thereon the application for a writ was denied, whereupon Byers filed an appeal to the district court of Leavenworth county. That court, following a hearing at which Byers was present in person, found that he was legally and lawfully confined in the penitentiary and denied the application for a writ.
This appeal followed.
At the outset we are confronted with the fact the “abstract” filed by appellant fails to include a specification of errors in compliance with rule number 5 of this court (see 188 Kan. XXVII).
The principle is thoroughly settled that where an appellant has made no effort to comply with rule number 5 appellate review is precluded and the appeal will be dismissed. For recent decisions dealing with the question see Blevins v. Daugherty, 187 Kan. 257, 356 P. 2d 852; State v. Armstrong, 188 Kan. 567, 363 P. 2d 520, and Lemon v. Pauls, 189 Kan. 314, 369 P. 2d 355.
There being nothing before us for review, the appeal is dismissed. | [
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|
The opinion of the court was delivered by
Parker, C. J.:
This appeal, the aftermath of a divorce action, involves what should be the last of a prolonged series of controversies regarding the custody of two minor children of divorced parents. The participating adults are the appellant mother, Wanda M. McGuire (now James), the appellant maternal grandmother, Nema Dunn, and the appellee father, R. Elwood McGuire. The unfortunate children are Sherry McGuire, a daughter, and Kenneth McGuire, a son, who, on the date of the custody order here involved, were eight and six years of age respectively.
Much time and space in the abstracts and briefs of record is devoted to the merits of disputes existing among the parties between March 9, 1959, the date when the district court of Pratt County rendered the original divorce decree, to the lattér part of August or the forepart of September, 1961, the date on which the father commenced the instant custody proceeding in the same court. In the face of the record presented such disputes have little, if any, bearing on the merits of the issues involved in the present appeal. For that reason no further reference will be made to the facts relating to such disputes unless they become necessary to dispose of questions raised respecting the sufficiency of the evidence to sustain the involved decision and judgment of the district court.
The facts, highly summarized, required to give readers of this opinion a proper understanding of what we deem to be the de cisive issues involved on appellate review of the decision and judgment just mentioned will now be stated.
The father’s application, asking that the district court of Pratt County change a prior custody order and judgment, the validity of which is not here in question, giving the maternal grandmother custody of the minor children and that he be granted their custody, was filed at a time when, pursuant to the terms and conditions of the prior order and judgment, such children were residents of, and domiciled in, Pratt County.
In substance such application stated that since the date of the prior custody order there had been a change in conditions (detailing them) which, since the father was now remarried, made it possible for him to maintain a suitable and proper home for his children, and alleged that it was not to the best interest of such children that their custody be given to either the maternal grandmother or the mother.
In response to the father’s application the maternal grandmother-filed an answer wherein she alleged there had been no material change of conditions warranting a change in the custody of the children; asserted that all allegations upon which the father based his application for a change of custody were res judicata and he was precluded from raising any of the issues contained in such application by virtue of estoppel; charged that the father was not a fit and proper person to care for the children; and alleged that she was a fit and proper person to continue with their care, custody and control.
The mother also resisted the father’s application by way of an answer wherein, in substance, she averred that the facts upon which he relied in support of his application had theretofore been judicially determined and were res judicata; stated that the application failed to set forth sufficient facts to support his claim for change of custody as to her or the maternal grandmother; alleged that she and the maternal grandmother were fit and proper persons to have the custody of the children, but that if a change was to be made she should be granted custody; and charged that the father was not a fit and proper person to have custody.
After joinder of issues, as heretofore indicated, the court, at a time when all parties were present in person and represented by counsel, held a full and complete hearing at which all interested parties were permitted to adduce evidence in support of their respective positions. The result of that hearing is fully demonstrated by the district court’s journal entry of judgment which should be quoted at some length. So far as pertinent to all questions raised by the parties, which are subject to appellate review, that instrument reads:
“Thereupon, the defendant (appellee) introduced his evidence and rested. Thereupon, a demurrer was interposed on behalf of the plaintiff (appellant), Wanda M. James, formerly Wanda M. McGuire, which demurrer was by the court considered and overruled. Thereupon, a demurrer was interposed on behalf of Nema M. Dunn as to the evidence offered by the defendant (appellee), which demurrer was considered by the court and duly overruled.
“Thereupon, evidence was offered on behalf of Nema M. Dunn, and after the conclusion of such, evidence was offered on behalf of Mrs. Wanda M. James, the mother of said children, and after the conclusion of all evidence and after argument by counsel, the court finds that the defendant (appellee) is a fit and proper person to have the care, custody, and control of the minor children, Sherry McGuire and Kenneth McGuire.
“The court further finds that the grandmother, Nema M. Dunn, has no rights under the law as to the care, custody, and control of such children, and that her claim to such care, custody, and control is denied in that the father has paramount rights to the care, custody and control of said children, he being a fit and proper person to have such care and custody of the children.
“The court further finds that the mother of the children, Wanda M. James, is not a fit and proper person to have the care, custody, and control of said children, and her claim to the care and custody of such minor children is denied
“It Is Therefore By The Court Ordered, Adjudged, and Decreed that the father of the above named children, R. Elwood McGuire, is a fit and proper person to have the care, custody, and control of the minor children and said children are therefore placed in the custody of the father.
“It Is Further Ordered, Adjudged, and Decreed By The Court that the father, having found to be a fit and proper person to have the care, custody, and control of his minor children, under the law has paramount rights thereto as between him and the grandmother, Nema M. Dunn, and It Is Therefore Ordered, Adjudged, and Decreed By The Court that Nema M. Dunn has no right to the care, custody, and control of such children.
“It Is Further Ordered, Adjudged, and Decreed By the Court that the mother, Wanda M. James, is not a fit and proper person to have the care, custody, and control of such children, and her claims to the care, custody and control of such children is therefore denied.
“It Is Further Ordered, Adjudged, and Decreed By The Court that reasonable rights of visitation with said children should be granted to the mother, Wanda M. James, and it is provided that in connection with such visitation rights the children should from time to time be taken to the home of the grandmother, Nema M. Dunn, and that Wanda M. James shall be permitted to visit with said children while such children are at the home of the grandmother.”
Following rendition of the foregoing orders and judgment the appellant Wanda M. McGuire and the appellant Nema Dunn gave separate notices of appeal to this court and now seek appellate review of such orders and judgment.
At the outset we are confronted with the question whether the appellant Wanda M. McGuire has perfected an appeal within the time prescribed by our statute (G. S. 1949, 60-3306 and 60-3309). This presents a jurisdictional question and must be determined even though the parties have not seen fit to raise it.
The jurisdiction of this court to entertain an appeal is conferred by statute, pursuant to Article 3, Section 3 of the Constitution of Kansas and, when the record discloses lack of jurisdiction by reason of noncompliance with the sections of the statute above cited, it is the duty of the Supreme Court to dismiss the appeal (See Polzin v. National Cooperative Refinery Ass'n, 179 Kan. 670, 298 P. 2d 333, on rehearing 180 Kan. 178, 302 P. 2d 1003; Thompson v. Groendyke Transport, Inc., 182 Kan. 616, 322 P. 2d 341, and the numerous decisions there cited).
Section 60-3306, supra, prescribes the manner in which appeals can be perfected. Provisions here pertinent read:
“Appeals to the supreme court shall be taken by notice filed with the clerk of the trial court, stating that the party filing the same appeals from the judgment, order or decision complained of ... A copy of such notice must be personally served on all adverse parties whose rights are sought to be affected by the appeal, and who appeared and took part in the trial, or their attorneys of record; or, if such service cannot be made within the state, service may be made by a notice, properly addressed to such persons or their attorneys of record at their places of residence, deposited in the mail, if their place of residence are known. Proof of such service shall be made by affidavit, . . .; and thereupon the appeal shall be deemed to be peifected.” (Emphasis supplied.)
Section 60-3309, supra, fixes the time for perfection of appeals. Its involved provisions read:
“The appeal shall be perfected within two months from the date of the judgment or order from which the appeal is taken. . . .” (Emphasis supplied.)
In Allbritten v. National Acceptance Co., 183 Kan. 5, 325 P. 2d 40, with direct reference to 60-3309, supra, this court held:
“Within the exception provided in G. S. 1957 Supp. 60-3314a, an appeal to the supreme court shall be perfected within two months from the date of the judgment or order from which the appeal is taken (G. S. 1949, 60-3309).
“Where the judgment or order appealed from was rendered December 26, 1956, and the notice of appeal was not filed until February 27, 1957, the appeal was not perfected within two months from the date the judgment or order was entered.” (Syl. ¶¶ 1, 3.)
See, also, Rockhill, Administrator v. Tomasic, 186 Kan. 599, 605, 352 P. 2d 444.
Resort to the record in the case at bar discloses that the judgment now before this court on appellate review was rendered on October 5, 1961, and that Wanda filed her notice of appeal with the clerk of the district court of Pratt County on November 29, 1961, within two months from the date of the judgment. However, the same source reveals that she did not file any proof of service of her notice of appeal or acknowledgment thereof with the clerk of such court until December 6, 1961, which, under the rule of the heretofore cited decisions, was more than two months from the date of the judgment from which the appeal is taken.
Thus we come to the vital question: In the face of the foregoing uncontroverted factual situation, does this court have jurisdiction of Wanda’s attempted appeal? That it does not is squarely answered by our established decisions. See Nicolay v. Parker, 185 Kan. 481, 345 P. 2d 1013, which holds:
“Where in attempting to perfect an appeal to this court under the provisions of G. S. 1949, 60-3306, no proof of service of the notice of appeal or acknowledgment thereof is timely filed although it is admitted the notice of appeal was in fact properly served, this court has no jurisdiction of the attempted appeal and it must be dismissed.” (Syl.)
For other decisions of like import, both civil and criminal, see National Reserve Life Ins. Co. v. Hand, 188 Kan. 521, 363 P. 2d 447; State v. Hanes, 187 Kan. 382, 357 P. 2d 819; Krehbiel v. Juhnke, 186 Kan. 514, 516, 517, 351 P. 2d 206; State v. Shehi, 185 Kan. 551, 345 P. 2d 684; State v. Sims, 184 Kan. 587, 337 P. 2d 704; Cochran v. Amrine, 155 Kan. 777, 779, 130 P. 2d 605, and the many cases therein cited.
Application of the rule of the foregoing decisions, to which we adhere, when applied to the undisputed facts of record compels a conclusion this court has no jurisdiction of Wanda’s attempted appeal and that it must be dismissed. It is so ordered.
In view of what has been heretofore stated and held it becomes apparent that, for purposes of issues subject to appellate review, we have before us a child custody case, in which a father is seeking custody of his minor children, now in custody of their maternal grandmother (hereinafter referred to as appellant) under a prior order of the same court; and that the all-decisive question involved is whether the district court erred in granting the custody of such minors to their father as against the appellant.
Nothing would be gained by burdening this opinion with a recital of the controlling facts of record. It suffices to say we have carefully reviewed such record and find substantial competent evidence to support the trial court’s findings to the effect the appellee was able to care for his children, desired to do so, and was a fit and proper person to have their care, custody, and control. Under such circumstances we believe the case now before us falls squarely within the established rule of this jurisdiction as stated in Christlieb v. Christlieb, 179 Kan. 408, 295 P. 2d 658, where it is held:
“A parent who is able to care for his children and desires to do so, and who has not been found to be an unfit person to have their custody in an action or proceeding where that question is in issue, is entitled to custody as against grandparents or others who have no permanent or legal right to custody.” (Syl.)
And in the opinion said:
“It is a firmly-established rule in this state that a parent who is able to care for his children and desires to do so, and who has not been found to be an unfit person to have their custody in an action or proceeding where that question is in issue, is entitled to the custody of his children as against grandparents or others who have no permanent or legal right to their custody, even though at the time the natural parent seeks their custody such grandparents or others are giving the children proper and suitable care and have acquired an attachment for them. We cite but a few of our many decisions in support of the rule: In re King, 66 Kan. 695, 72 Pac. 263, 97 Am. St. Rep. 399, 67 L. R. A. 783; Wood v. Shaw, 92 Kan. 70, 139 Pac. 1165; Crews v. Sheldon, 106 Kan. 438, 186 Pac. 498; Jendell v. Dupree, 108 Kan. 460, 195 Pac. 861; In re Kailer, 123 Kan. 229, 255 Pac. 41; Smith v. Scheuerman, 133 Kan. 348, 299 Pac. 616; Jones v. Jones, 155 Kan. 213, 124 P. 2d 457; May v. May, 162 Kan. 425, 427, 176 P. 2d 533; In re Jackson, 164 Kan. 391, 190 P. 2d 426; Bailey v. Bailey, 164 Kan. 653, 192 P. 2d 190; Stout v. Stout, 166 Kan. 459, 463, 201 P. 2d 637; Ramey v. Ramey, 170 Kan. 1, 223 P. 2d 695, and Monroe v. Slaughter, 171 Kan. 614, 237 P. 2d 372.” (p. 409.)
Application of the rule of the foregoing decision, and we may add the same rule as announced and applied in the many decisions therein cited, compels a conclusion that, under the controlling facts of this case, the trial court did not err in its orders and judgment changing the custody of the involved minors from the appellant to the appellee.
With reference to contentions advanced and strenuously argued by appellant’s counsel it should be stated that in reaching the conclusion just announced we have not overlooked but rejected:
(1) A claim the prior custody judgment was res judicata and fixed the rights of the parties. See Kamphaus v. Kamphaus, 174 Kan. 494, 256 P. 2d 883, where it is held:
“A decree awarding custody of a child becomes res adjudicata only concerning matters determined as of the time the decree was rendered. Such a decree does not import finality but is subject to modification depending upon changed conditions affecting the best interests and welfare of the child.” (Syl. ¶ 1.)
(2) A claim that appellee was precluded from raising any of the issues raised in his application by virtue of estoppel in that prior to rendition of the immediate preceding custody order he had joined in an agreement the district court should make an award granting the appellant custody of the minor children. See Goetz v. Goetz, 184 Kan. 174, 176, 334 P. 2d 835, and Jackson v. Jackson, 181 Kan. 1, 309 P. 2d 705, holding that under our statute jurisdiction of the district court over the custody of children involved in a divorce action is a continuing one and its custody orders may be changed whenever conditions and circumstances permit. See, also, Tucker v. Finnigan, 139 Kan. 496, 499, 32 P. 2d 211, and Wood v. Shaw, 92 Kan. 70, 72, 139 Pac. 1165, holding that the custody of children is not a matter to be determined by contract.
Another claim, that remarriage and the establishment of a home by a father who desires the custody of his minor children as against a grandparent is not a material change of the conditions existing at the time of a prior custody order, is rejected because such claim finds no support in our decisions.
Additional claims, to the effect the trial court erred in rendering judgment while under passion and prejudice against appellant and for appellee, and in rendering a judgment contrary to the evidence, are rejected because they are not sustained by the record.
Finally appellant insists that she is entitled to an allowance of attorney fees in this court in connection with her attempt to reverse the trial court’s judgment. We know of, and are cited to, no decisions of this jurisdiction holding that attorney fees are recoverable by either an appellant or appellee under the existing facts and conditions.
Appellant cites four cases dealing with the allowance of attorney fees to a wife, under the provisions of G. S. 1949, 60-1507, but they are clearly distinguishable and do not support her position.
The law of this jurisdiction is well-established that attorney fees and expenses of litigation, other than court costs, incurred by a pre vailing party in an action, are not chargeable as costs against the defeated party, in the absence of a clear and specific statutory provision therefor. See, e. g., State, ex rel., v. Sage Stores Co., 158 Kan. 146, 145 P. 2d 830; Murrow v. Powell, 167 Kan. 283, 205 P. 2d 1193; Vonachen v. Pratt Glass Co., 172 Kan. 545, 241 P. 2d 775; Ablah v. Eyman, 188 Kan. 665, 682, 365 P. 2d 181.
Of a certainty the rule of the decisions just cited is equally, if not more so, applicable to situations where defeated parties are seeking the allowance of attorney fees.
In Maston v. Maston, 171 Kan. 112, 229 P. 2d 756, a child custody case, with specific reference to the provisions of G. S. 1949, 60-1507, we said at page 115 of the opinion that “The allowance of attorney fees is wholly statutory, and insofar as the instant case is not covered by statute, it is no different from any other law suit between the individuals where there was no contract to pay attorney fees.”
Resort to the provisions of 60-1507, supra, reveals it permits an allowance of attorney fees to the wife in a divorce action but fails to disclose any language authorizing the allowance of such a fee to a grandparent who — as here — is seeking to set aside the decision of a trial court awarding custody of minor children to a parent as against the grandparent. Moreover, we find no other section of our statute which warrants or permits any such action. Therefore we are constrained to hold that appellant’s request for the allowance of attorney fees must be denied.
Based on what has been heretofore stated and held the judgment of the district court awarding the custody of the involved minor children to their father must be affirmed.
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The opinion o£ the court was delivered by
Fatzer, J.:
This was an action to recover for personal injuries sustained in a collision of two automobiles at a blind rural intersection in Rush County. Judgment was for the plaintiff, and the defendant has appealed.
There is very little, if any, dispute as to the facts. They are briefly summarized: The collision occurred at about 6:15 p. m. at the intersection of two county roads; both were graveled, and approximately 25 feet in width; the north-south road on which the defendant’s car was traveling north was elevated slightly above the east-west road on which the plaintiff was traveling west. Weeds and crops were growing at the southeast corner of the intersection, limiting visibility. When the plaintiff was about a quarter of a mile east of the intersection he was traveling 30 to 35 miles per hour. He was familiar with the intersection and knew it to be dangerous and hazardous, and as he approached it, he reduced his speed to ten or fifteen miles per hour. When he was 50 to 60 feet from the intersection he looked to the north and to the south, and could see tall feed and weeds and some of the county road about 40 feet south. When he reached a point ten feet east of the intersection, he observed the defendant’s car 100 feet south. Believing he had ample time to cross, he proceeded into the intersection. As his car was leaving the intersection, it was struck in the left rear portion by the defendant’s car.
The defendant’s driver testified that he observed plaintiff’s car when it was 25 feet east of the intersection and at that time he was 175 feet south of the intersection; that he traveled about 100 feet before he applied his brakes; that he left 103 feet of skid marks, and that he struck plaintiff’s car, demolishing both vehicles. He further testified that it would take from 300 to 400 feet to stop his car at the speed he was traveling; that he was familiar with the intersec tion and knew it to be dangerous and hazardous; that he had worked his crew late that evening and was hurrying home; that he could not stop within the range of his vision, and that one could not slow down for every intersection.
A passenger in the defendant’s car testified he was crew foreman for the defendant, and they were probably 200 or 300 feet south of the intersection when the plaintiff’s car was 20 or 30 feet east of it; that because he threw his hands up and covered his face he did not see the plaintiff’s car again, nor could he see the speedometer to know how fast they were going.
The plaintiff’s son was riding with him and he testified that the defendant’s car was traveling between 70 and 75 miles an hour when the driver applied his brakes, and that it slid or skidded to the west or left side of the road, striking the plaintiff’s car on its side toward the rear.
The plaintiff was thrown from his car and suffered severe permanent injuries requiring long hospitalization and continued medical and surgical care.
The case was tried by a jury which returned a general verdict for plaintiff in the amount of $55,000, and answered special questions as follows:
“1. Do you find that the defendant’s driver was guilty of any acts of negligence which were a proximate cause of the collision?
“Answer: Yes.
“2. If you answer No. 1 in the affirmative, state what those acts of negligence consisted of?
“Answer: (1) Failure to keep his automobile under reasonable and proper control; (2) Defendant’s driver failed to yield the right of way to the vehicle driven by plaintiff.
“3. Do you find that the plaintiff was guilty of any acts of negligence which were a proximate cause of the collision?
“Answer: No.
“4. If you answer No. 3 in the affirmative, state what those acts of negligence consisted of?
“Answer: No answer.
“5. If you find in favor of the plaintiff, how much do you allow for the following elements of damage:
Past Medical Expense: $ 3,000.
Future Medical Expense: $ 7,000.
Loss of Earnings: $30,000.
Pain & Suffering: $ 5,000.
Permanent Injury: $10,000.
Total: $55,000.”
The defendant first contends the district court erred in overruling its demurrer to the plaintiff’s evidence, its motion for a directed verdict at the close of all the evidence, and its motion for judgment. It argues that thé admissions of the plaintiff during the course of his testimony clearly established that he was contributorily negligent as a matter of law, and cites and relies upon Green v. Higbee, 176 Kan. 596, 272 P. 2d 1084.
In determining whether a plaintiff is guilty of contributory negligence when tested by a demurrer, the question must be submitted to the jury if the facts are such that reasonable minds might reach different conclusions. (Cain v. Steely, 173 Kan. 866, 873, 252 P. 2d 909.) Simply stated, did the plaintiff’s evidence show that he acted as an ordinary, prudent person would act under the same or similar circumstances? We are of the opinion that reasonable minds might reach different conclusions on the question, and that it was properly submitted to the jury. (Lawrence v. Kansas Power & Light Co., 167 Kan. 45, 49, 204 P. 2d 752.) The evidence was undisputed that the plaintiff looked to the south and could see part of the county road 40 feet to the south of the intersection and no cars were in sight. He reduced his speed from 30 to ten or fifteen miles per hour. When he was ten feet from the intersection he saw the defendant’s car 150 feet to the south and he thought he had ample time to cross. As the front of his car was leaving the intersection and when there was room for the defendant’s car to have passed to the rear, the defendant’s vehicle skidded or swerved to the left or west side of the road and struck the left side of the plaintiff’s car at the rear. We think what was said and held in Domann v. Pence, 183 Kan. 135, 139, 325 P. 2d 321, is controlling. The facts of both cases are almost identical, and the reader is referred to that opinion. It was there held that those facts did not give rise to the application of the rule announced in Green v. Higbee, supra, where it was held that a demurrer was properly sustained to the plaintiff’s evidence which showed that plaintiff had entered a blind rural intersection at a speed of approximately 40 to 50 miles per hour. The district court was of the opinion this was not a “Green v. Higbee” case. We agree. An examination of instruction 13 establishes that the jury was fully and properly instructed where an accident occurs at a blind intersection of rural roads without stop signs. We are of the opinion the district court did not err in overruling the defendant’s demurrer and its motions for a directed verdict and for judgment.
It is next contended that the district court committed reversible error when it denied the defendant the right to submit to the jury ten special questions as provided by G. S. 1949, 60-2918, upon claimed material controverted issues of fact. The questions read:
“Q. Do you find from the evidence that the Southeast comer of the intersection involved was a blind intersection? Q. Was this a hazardous and dangerous intersection? Q. Did the plaintiff have his auto under control for whatever he might encounter at the intersection while approaching and entering said intersection? Q. At what rate of speed was plaintiff traveling as he entered the intersection? Q. At what portion of the intersection did the collision occur? Q. How far East of the East edge of the North and South gravel road could the plaintiff have seen the defendant’s vehicle? Q. How far East of the East edge of the North and South gravel road did the plaintiff see the defendant’s vehicle? Q'. Where was the defendant’s vehicle at the time plaintiff first saw it? Q. When plaintiff first saw defendant’s vehicle did he make any effort to judge the speed of said defendant’s vehicle? Q. Did the plaintiff attempt to avoid the collision and if so state how?”
The defendant’s contention cannot be sustained. Under the issues formed by the pleadings and the evidence, the only questions of ultimate fact were: Was the defendant negligent? Was the plaintiff contributorily negligent? What was the proximate cause? And, what were the items of damages? All of those were covered in the special questions submitted to the jury. The well-considered case of Albin v. Munsell, 189 Kan. 304, 369 P. 2d 323, is decisive of the question under consideration, hence we quote at length from that opinion:
“Appellants next complain because the trial court refused to give most of the special questions prepared and asked by them and instead prepared and gave some of its own. The gist of all arguments advanced on this point is that under the provisions of G. S. 1949, 60-2918, appellants were entitled to request ten questions and the court was required to give them. Conceding appellants had a right to request submission of their requested questions it does not follow the trial court was required to give them, particularly in the form requested. This court long ago established the rules governing the contentions raised by appellants in connection with the matter now under consideration. See Doty v. Crystal Ice & Fuel Co., 122 Kan. 653, 253 Pac. 611, where it is held:
“ ‘The trial court has discretionary supervision of the form and nature of special questions which may be submitted to a jury, and may properly refuse to submit questions which are highly technical, or which are not focused on the ultimate facts of the matter in issue, or which are designed merely to recapitulate the evidence rather than to determine the facts proven by the evidence.’ (Syl. ¶ 1.)
“See, also, Sluss v. Brown-Crummer Inv. Co., 143 Kan. 14, 53 P. 2d 900, which holds:
“'The trial court has a wide discretion as to the special questions to be submitted to the jury, and where it appears that a question is not intended to bring out some ultimate fact in the case it is proper to refuse to submit it.’ (Syl. ¶ 5.)
“And in more recent decisions the court has consistently adhered to the rules announced in the foregoing decisions. See Reda v. Lowe, 185 Kan. 306, 314, 342 P. 2d 172; Kurdziel v. Van Es, 180 Kan. 627, 633, 306 P. 2d 159; Finke v. Lemle, 173 Kan. 792, 797, 798, 252 P. 2d 869; Alexander v. Wehkamp, 171 Kan. 285, 291, 232 P. 2d 440.” (l. c. 312, 313.)
In denying the motion for a new trial, the district court pointed out that it refused to submit the requested special questions because they were evidentiary in nature and did not pertain to matters of ultimate fact, and would not have affected the verdict. The requirement is that the district court submit special questions on issues of ultimate fact and not those designed to cross-examine the jury, or which are evidentiary in nature. An examination of the record discloses that the special questions submitted were limited to the ultimate facts on the controverted issues. Those requested by the defendant tended to recapitulate the evidence rather than to determine the ultimate facts. For that reason the district court’s denial of the defendant’s requested special questions did not result in such an abuse of its discretionary power as to constitute reversible error. (Albin v. Munsell, supra.)
The defendant lastly contends the jury’s award of $30,000 damages for loss of earnings was entirely speculative and conjectural. It is claimed there was no competent evidence upon which to base such an award. The plaintiff testified on redirect examination as follows:
“Q. I have one or two questions. Mr. Folkerts, how much money were you earning annually prior to your injuries in 1958? Mr. Russell: Object to it as improper redirect, if Your Honor please. The Court: Overruled. A. Four Thousand Dollars. Q. And how much have you earned since your injuries? A. About fifteen hundred dollars.”
On cross-examination he testified:
“Q. Mr. Folkerts, I believe you said that you are still operating the same land that you operated before the accident? A. Yes, sir. Q. And isn’t it a fact that you have testified previously that your 1959 income, gross income, was around three thousand dollars? A. That’s right.”
The plaintiff is a farmer operating 324 acres. At the time of the accident he was 48 years old and capable of doing a hard day’s work. The evidence showed he was a good farmer; that he was industrious, thrifty, and in good health. As previously indicated, he received severe permanent injuries to his back, spine, legs, bladder and pelvis, and that he would never again be able to carry on his work as he had prior to his injuries. There was evidence that he would need medical care for the remainder of his life and that once each six weeks or oftener he would be required to have surgical operations. It was stipulated that he had a life expectancy of 300 months, or 25 years.
The only question before this court is whether there was evidence to support the finding of the jury of loss of earnings of $30,000. The defendant argues that there was no testimony of any profit in the plaintiff’s farming activities; that he produced no records and no income tax reports or books, and that it was impossible to tell from the record whether he made or lost money each year. We do not agree. There was evidence that the plaintiff was losing $2,500 a year in earnings as a result of his injuries, and that he had a life expectancy of 25 years. That evidence would support a finding of more than was returned by the jury. Whether error might have been committed in admitting the evidence that plaintiff was losing $2,500 per year is not before us. At the hearing of the motion for a new trial the defendant did not stress the fact that such evidence might have been incompetent. It merely argued that there was no evidence to support the finding. On this point we think what was said in Gaynes v. Wallingford, 185 Kan. 655, 347 P. 2d 458, is pertinent:
“. . . The short answer to the contention is that the appellant made no objection to the testimony as not being the best evidence, or that it was hearsay as to the appellant, and made no motion to strike the evidence for those reasons. Under such circumstances, the objection comes too late when it is first made on appellate review (Long v. Lozier-Broderick & Gordon, 158 Kan. 400, 147 P. 2d 705).” (l. c. 661.)
See, also, Jaggar v. Plunkett, 81 Kan. 565, 106 Pac. 280; Leake v. Chaddock, 129 Kan. 499, 283 Pac. 625; Kirkpatrick v. Wickwire, 138 Kan. 230, 25 P. 2d 371, and Thornton v. Bench, 188 Kan. 89, 360 P. 2d 1065.
In Albin v. Munsell, supra, the rule regarding damages was stated as follows:
“. . . In this jurisdiction the kind of proof required to establish the essential elements of damage involved in a tort action may be different but when the evidence with respect thereto is all in and it affords data, facts, and circum stances reasonably certain from which liability, and actual loss can be determined, it is the jury’s province to determine the amount of damages sustained on the basis of such evidence. This, we may add, is so even though no witness has testified in the case expressing an opinion as to the amount of such damages. . . .” (l. c. 311.)
There was evidence of what the plaintiff was earning before his injuries and what he earned subsequent thereto. On appellate review this court does not weigh evidence, but merely determines whether the evidence supports the findings. In this case it is clear that it does.
The burden is upon the defendant to make it affirmatively appear that there is reversible error in the record, and we fail to perceive any. The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal from a verdict and judgment for the plaintiff in an automobile collision case.
The primary question presented is whether the special findings of the jury establish contributory negligence on the part of the plaintiff as a matter of law.
The collision out of which this lawsuit results occurred in Bourbon County, Kansas, on July 9, 1958. The plaintiff (appellee) was operating a 1950 G. M. C. 1 ton pick-up truck. The defendant Culbertson, employed by defendant Snyder (appellants), was driv ing a 1951 Ford 2-ton truck. It was loaded with lime and the overall weight was 21,000 pounds.
The plaintiff emerged from a driveway on the north side of a county road. It was stipulated that the east-west road upon which the defendant was traveling was a public county road, and that the driveway from which the plaintiff emerged was a private drive owned by the county and used in connection with the county rock crusher and quarry. The county road was surfaced with gravel.
It was the plaintiff’s theory that his pick-up truck had emerged from the private quarry road on the north side of the county road; that he had made a left turn; that he had driven east some 70 feet and had pulled over to the south side of the road and stopped with his right front wheel in the ditch a little on an angle when his pick-up was struck by the defendants’ lime truck which was proceeding west on the county road. The plaintiff testified the front of the lime truck shuck the pick-up on the left side between the front wheel and the door post.
In his petition the plaintiff charged the defendants with six specific acts of negligence, among which was failure to have reasonable control of the vehicle.
The defendants by their answer set up the plaintiff’s contributory negligence charging, among other things, that the plaintiff failed to yield the right of way. They also filed a cross petition. The drivers of both vehicles were injured and the vehicles damaged. Upon issues joined the case was tried to a jury which returned a verdict for the plaintiff in the sum of $22,124.88 upon which judgment was entered in the sum of $22,015.28, to which the plaintiff agreed by reason of patent error in arithmetic in the verdict.
Special questions submitted to the jury were answered in the following manner:
“1. Was the defendant, Bennie C. Culbertson, guilty of negligence which was a proximate cause of the collision? Answer: Yes.
“2. If your answer to the above question was ‘yes’, state what that negligence was. Answer: Failing to have his vehicle under reasonable control.
“3. Was the plaintiff, Earl Ater, guilty of contributory negligence which was a proximate cause of the collision? Answer: No.
“4. If your answer to the above question was yes’, state what that contributory negligence was. Answer:
“5. Please locate as accurately as possible the point of impact on the county road. Answer: 40 feet east of center of quarry road and center of east-west county road heading east.
“6. Please state whether the plaintiff’s truck was moving or stopped at the time of impact. Answer: In motion.
“7. If your verdict is for the plaintiff, please itemize his damages, if any. For medical and hospital expense and nursing care. . $ 2,824.88
For damages to plaintiff’s truck.................$ 400.00
For loss of wages............................$ 900.00
For pain and suffering..........................$ 2,000.00
For permanent injuries......................$15,000.00
For future medical expense....................$ 1,000.00”
Thereafter the defendants filed a motion for a new trial, a motion for judgment on answers to special questions notwithstanding the general verdict, and a motion to set aside the answer to special question No. 3. These motions were overruled and appeal has been duly perfected by the defendants presenting the questions hereafter considered.
Throughout this opinion we shall continue to refer to the parties as they appeared in the lower court.
It was the defendants’ theory of the case that the lime truck was proceeding west, downgrade, on the county graveled road when the plaintiff’s pick-up truck pulled out of the private quarry road on the north side, and that when the plaintiff pulled out onto the county road his pick-up was in such close proximity to the defendants’ truck that the collision occurred. The defendants contend the answers to special questions Nos. 2, 5 and 6 establish as a matter of law that when the plaintiff emerged from the quarry road he failed to yield the right of way to the defendants. It was stipulated the plaintiff’s pick-up truck was 16 feet long.
It was established that the vehicles after the collision came to rest opposite the west edge of the quarry road with both vehicles partially in the traveled portion of the county road and partially south of it. The undersheriff testified that he found skid marks of 51 feet from the center of the county road over into the ditch, measuring from the closest point on the plaintiff’s pick-up in the direction from which the skid marks were made. He observed dirt, oil and water in the middle of the road, and from that point to where the vehicles came to rest was 51 feet.
The exhibits introduced in evidence disclosed that the quarry road did not meet the county road at 90 degrees but at a slight angle northwest from north. The exhibits also disclosed the two roads at the time of the collision to have been approximately 20 feet wide. The defendant Culbertson testified he was driving the lime truck between 30 and 40 miles per hour in the center of the road and that the impact occurred in the middle of the road while the plaintiff’s pick-up was moving. He testified the point of impact was at the east edge of the curved portion of the quarry road. The evidence disclosed, however, that the east corner of the quarry road as it joined the county road had been rounded to a considerable extent since the accident, and the exhibit from which this testimony was given did not represent the quarry road as it was when the accident occurred.
The defendants argue the jury adopted their factual theory of the case, but drew an erroneous conclusion therefrom. To support this argument they present their own interpretation of the answers given to the special questions.
The jury in special question No. 5 was asked to locate as accurately as possible the point of impact on the county road. By their answer they placed this point at “40 feet east of center of quarry road and center of east-west county road heading east.” (Emphasis added.) The defendants construe this answer to mean that the point of impact was in the center of the county road 40 feet east of the center of the quarry road. Under this interpretation the words “heading east” must be regarded as surplusage.
The rule is well established that special findings are to be construed liberally and that any ambiguity must be resolved in favor of the general verdict. In Kitchen v. Lasley Co., 186 Kan. 24, 348 P. 2d 588, it was said:
“. . . Under all our decisions a general verdict imports a finding upon all the issues of the case not inconsistent with the answers to special questions submitted, and such special findings are to be given such a construction, if possible, as will bring them into harmony with the general verdict. See Giltner v. Stephens, 166 Kan. 172, 200 P. 2d 290; Hubbard v. Allen, 168 Kan. 695, 701, 215 P. 2d 647; Cain v. Steely, 173 Kan. 866, 252 P. 2d 909; Hurley v. Painter, 182 Kan. 731, 736, 324 P. 2d 142. For numerous other decisions of like import see West’s Kansas Digest, Trial § 343. . . .” (p. 29.)
While nothing will be presumed in favor of special findings as against the general verdict, it has been said, the special findings may be viewed and interpreted in the light of the testimony. (Schroeder v. Nelson, 157 Kan. 320, 326, 139 P. 2d 868; and Hubbard v. Allen, 168 Kan. 695, 701, 215 P. 2d 647.)
We do not think the words “heading east” in answer to question No. 5 can be ignored. Giving effect to these words places the point of impact in the center of the south lane,, or in plaintiff’s proper lane of traffic. This interpretation is in harmony with the general verdict.
From the record it may be said there is evidence to support the special findings made by the jury. Several of the plaintiff’s witnesses placed the skid marks of the lime truck as commencing on the south half and south shoulder of the county road.
The plaintiff’s testimony pertinent to this point is as follows:
“There is a double entrance from the county road to the rock quarry. He drove his pick-up truck out the west entrance and pulled up where he could see east and west. He was going to the east. He saw a truck coming quite a little way and noticed he had plenty of time to pull out on the road. He pulled out on the road and started east, slow. The oncoming truck was ‘from five to three hundred feet and there’s where he started to wobbling, I just shot my truck over a little further, had my right front wheel clear over in the ditch just a little on the angle, and the closer he got to me the more he wobbled.’ ”
This evidence is sufficient to support the jury’s finding that the defendant Culbertson did not have his vehicle under control, and it also supports the finding that the plaintiff was not guilty of contributory negligence which was a proximate cause of the collision. Insofar as the record discloses the jury found that the plaintiff emerged from the west lane, or right side, of the quarry road onto the county road and had proceeded 40 feet in an easterly direction in his lane of traffic driving at a slow rate of speed, when the defendants’ truck collided with him in his own lane of traffic as the defendants’ truck proceeded in a westerly direction out of control down the highway. It may therefore be said the answer to question No. 3 was consistent with the general verdict and in harmony with the answers to the special questions and the trial court did not err in its failure to strike this answer as inconsistent.
The defendants argue the only possible way the answers to special questions Nos. 5 and 6 could be reconciled with the negative answer to special question No. 3 would be that the defendants’ truck was traveling at an extraordinary rate of speed. They further argue the jury’s special finding, that the defendants’ negligence consisted of lack of control, exonerated them of all other charges of negligence, including that of speed (citing Roberts v. Railway Co., 98 Kan. 705, 161 Pac. 590; Rasing v. Healzer, 137 Kan. 516, 142 P. 2d 832; and Stevens v. Allis-Chalmers Mfg. Co., 151 Kan. 638, 100 P. 2d 723). The foregoing argument and rule would have application to this case only if the court adopted the defendants’ interpretation of the special findings and their theory of the evidence.
It must be conceded G. S. 1949, 8-523, as construed in Adams v. Dennis, 171 Kan. 32, 229 P. 2d 740, requires the driver of a vehicle entering a public road from a private driveway to yield the right of way to all other vehicles approaching so closely on the public road as to constitute an immediate hazard. The jury was properly instructed on this point but found against the defendants, and since there is some evidence to support such finding the matter has been resolved. Considering the evidence most favorable to the plaintiff we cannot say the plaintiff failed to yield the right of way as a matter of law.
The defendants argue it seems incredible that notwithstanding the concession of plaintiff’s attorneys in arguing the case to the jury that the plaintiff could not recover unless their theory of the collision (70 feet or so east of the quarry road and while plaintiff’s vehicle was stopped on the shoulder) was accepted by the jury as proved, the jury could nevertheless, in effect, adopt the defendants' testimony as to how the collision occurred but award damages to the plaintiff.
Actually the jury did not adopt the theory of either of the parties. Whether the distance between the point of impact and where the vehicles came to rest was 51 feet or 70 feet, or whether the plaintiff’s vehicle was moving or stopped at the time of impact, are not of vital importance when viewed in connection with the over-all findings of the jury and the most favorable evidence adduced in support of such findings. The jury is not bound by the theory of either party. The fact that counsel for the plaintiff argued plaintiff’s theory of the evidence and said plaintiff would not be entitled to judgment unless this theory were adopted, does not require a reversal of the judgment merely because the findings of the jury varied somewhat from the plaintiff’s testimony, or the evidence of plaintiff’s witnesses.
The jurors are the exclusive judges of the credibility of the witnesses. They are required to carefully and impartially consider all the testimony, and if possible, reconcile any apparently conflicting statements of the witnesses; but if after full and fair consideration they find the testimony is conflicting, they must then reject such parts of it as they believe to be least worthy of credit. They are at liberty to reject the entire testimony of any witness that they believe has willfully sworn falsely as to any material fact in the case, but they are not bound to do so. They may still give the testimony of such witness such weight as they think it is entitled to receive, and if from a consideration of all the testimony they feel warranted in so doing, they may reject a part and believe a part of the testimony of such witness.
The fact that a jury rejects part of the testimony of a plaintiff in a lawsuit does not necessarily preclude findings favorable to the plaintiff, or prevent a judgment for the plaintiff. Here, for example, the jury found the point of impact to be at a place other than where either the plaintiff or the defendant Culbertson testified.
The defendants contend the trial court erred in submitting, over objection, special question No. 7 containing various items of alleged damage, such as “pain and suffering” and “permanent injuries.” It is argued the giving of this special question suggested to the jury that they should allow damages for each of these items. This point is not well taken. No objection was made to an instruction given by the trial court which informed the jury that the plaintiff was entitled to recover such sum of money as would fully compensate for the injuries sustained. The jurors were instructed they were entitled to consider the health and physical condition of the plaintiff just before the injury, present health and physical condition, and how much the injury would impair health, if at all, in the future. They were also instructed they could consider the physical pain and suffering, if any, to which the plaintiff was or may in the future be subject as a result of the injury; and that after considering the entire case they could allow such sum of money as in their opinion would be fair and just compensation for the injury sustained. (See Domann v. Pence, 183 Kan. 135, 325 P. 2d 321.)
Ry a specific instruction on special damages the jury was given the amount of special damages for each of the first three items enumerated in question No. 7, without objection by the defendants. These’ amounts were undisputed.
Defendants next contend there was no evidence to support the jury’s award of $1,000 in damages for future medical expense. There was evidence that the plaintiff took medicine three times a day which he purchased from a drug store under a doctor’s supervision, and that it cost $8 or $10 per month. We think the jury was entitled to consider the plaintiff’s condition along with the evidence offered and conclude what allowance should be made for future medical expense. On the record presented we cannot say the jury’s award of $1,000 for future medical expense was unwarranted.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Parker, C. J.:
This is a workmens compensation proceeding brought by John P. Sirico (hereinafter referred to as claimant), under the provisions of the Workmen’s Compensation Act, particularly Chapter 246, Laws 1953, now G. S. 1961 Supp., 44-5a01 to 44-5a22, incl., against Jess Burch and his insurance carrier, Western Casualty and Surety Company (hereinafter referred to as Burch or as appellants), and Fox Construction Company and its insurance carrier, Central Surety and Insurance Corporation (hereinafter referred to as Fox or as appellees).
Before submitting the cause to the Compensation Director, and at his direction, hearings were conducted by an Examiner who, after hearing the evidence adduced by all parties, made a summary of such evidence which reads:
“Claimant testified that he had been a carpenter for about 10 years and for a considerable portion of that time had been particularly engaged in sheet rock finishing; that on July 21 to July 26, 1960, he was working for Jess Burch tearing out a concrete wall and was working in a closed in area in a garage; that the garage was full of cement dust; that dust would kick back from the jack hammer onto his trousers; that it was very hot during this time and he was sweating profusely; that when he went home on July 26 he found he was broken out from the waist down; that it was about this time he concluded work for Jess Burch; that he went to work for Fox Construction Company on August 3; that while working for Fox be broke out all over his face, chest and arms; that one of the representatives of Fox asked him what the breaking out was; that he advised that the doctor had told him it was dermatitis; that the following day he was laid off, and has not worked since; that previous to the breaking out in July he had had no similar difficulty except for a rash on his hands which did not keep him from working; that he had certain medical bills for the years 1960 and 1961, consisting of bills for treatment at the Medical Arts Clinic and St. Mary’s Hospital, and medical attention given him by Dr. Joe Barker and Dr. Joseph Hovorka.
“Mary Sirico, wife of claimant, testified that she recalled the claimant’s breaking out on or about July 25 or 26; that she had never observed any such breaking out on his body since their marriage in 1949; and that she informed Jess Burch of the breaking out of claimant within ten days after its occurrence.
“Dr. Joseph Hovorka testified that claimant was suffering from acute contact dermatitis, caused by an extremely heavy exposure to cement dust; that this attack of dermatitis left claimant with allergies to numerous substances; ■ that he first saw claimant on August 11, 1960; and that in his opinion claimant could not return to construction work or any work around wood.”
In connection with his summarization of the evidence the Examiner then made findings and an award, in favor of claimant and against appellants (Burch and Western), all of which were filed with and approved by the Director and thereupon became his findings and award.
The findings on which the Director based his award read:
“. . . that claimant contracted acute contact dermatitis while employed by Jess Burch sometime between July 21 and July 26,1960; that said contraction of disease arose out of and in the course of claimant’s employment by Jess Burch; that claimant was in fact incapacitated by the said disease on July 26, 1960, even though he did do some work thereafter; that respondent Jess Burch had notice of such contraction of disease as required by law; that written claim for compensation was timely filed; that as a result of the contraction of contact dermatitis claimant is totally and permanently disabled from performing any work of the same or similar nature to that which he was performing at the time the said disease was contracted; that claimant is entitled to be compensated at the rate of $38.00 per week for 415 weeks; and that claimant is entitled to recover all medical expenses, past and future, incurred at the direction of Dr. Joe Barker or Dr. Joseph Hovorka, in connection with the said contact dermatitis, not to exceed the total amount of $2,500.00.”
Subsequently appellants perfected an appeal from the Director’s award to the district court. So far as here pertinent such award reads:
“Wherefore, Award of Compensation Is Hereby Made in favor of the claimant, John P. Sirico, and against the respondent, Jess Burch and insurance carrier, Western Casualty and Surety Company for permanent total disability resulting from occupational disease contracted during the period of July 21 through July 26, 1960, . . .”
After hearing the appeal, in conformity with the provisions of G. S. 1961 Supp., 44-556, the district court found there was sufficient evidence introduced at the hearing to support the findings of the Director. This, it should be noted, is a finding which, under our decisions (see e. g., Wilson v. Santa Fe Trail Transportation Co., 185 Kan. 725, 727, 347 P. 2d 235, and Davis v. Harin & Laughlin Construction Co., 184 Kan. 820, 822, 823, 339 P. 2d 41), must be treated in effect as a statement that after independent determination it “adopted” the Director’s findings and award. Thereupon the court rendered judgment for the claimant in accordance with the findings and award of the Director. Appellants then perfected the instant appeal.
In approaching questions raised by the appellants in support of the over-all claim of error raised in their notice of appeal to the effect the trial court erred in rendering an award of compensation in favor of claimant and against them, i. e., Rurch as employer and Western as his insurance carrier, we note, at the outset, their statements that in their research they found only one Kansas case dealing with the occupational disease act and it was not concerned with the issues here involved. Assuming that by these statements they have reference to Weimer v. Sauder Tank Co., 184 Kan. 422, 337 P. 2d 672, and mindful that we were there — as here — dealing with the right of a workman to recover a compensation award, under then comparatively new occupational disease statute, particularly 44-5a01, supra, from an employer for an occupational disease — there poisoning by aluminum fumes and here dermatitis — contracted during the course of employment, we cannot agree with appellants’ position that case was not concerned with issues here involved.
In the Weimer case, after quoting at length from pertinent portions of the provisions of G. S. 1957 Supp., 44-5a01, now G. S. 1961 Supp., 44-5a01, that being the section of the statute in which the legislature gave workmen the right to recover for occupational diseases in workmen’s compensation proceedings and outlined and defined the conditions and circumstances under which awards of such diseases could be obtained, and with particular reference as to what a workman was required to show in order to establish his right to an award under the terms of 44-5a01, supra, we said and held:
". . Therefore we hold the proviso on which appellants rely is to be construed as contemplating that in a claim for compensation, such as is here involved, all that is required of the workman as a condition to his right to receive compensation is to show that his disability, if otherwise within the provisions of such statute, is due to the peculiar and unusual hazards of the particular occupation in which he was engaged at the time that disability occurred.” (p. 428.)
Notwithstanding they concede that claimant was injuriously exposed to the hazards of dermatitis while working for Burch between the dates of July 21, 1960, and July 26, 1960, the gist of several complaints made by appellants, when combined and considered together, is that there was no substantial competent evidence presented to tire trial court which would sustain its heretofore quoted findings. We are not disposed to labor the evidence of record on which such findings are based. It suffices to say that after carefully reviewing the record we are satisfied it discloses substantial competent evidence to sustain each and all of such findings, including a finding, which is inherent in the other findings as made, that claimant’s incapacity, resulting from occupational disease contracted during the period of July 21 through July 26, 1960, as found by the court, was due to the peculiar and unusual hazards of the particular occupation in which he was engaged at the time such disability occurred. It follows such findings are conclusive and will not be disturbed on appellate review, even though the record discloses some evidence which might have warranted findings to the contrary (see e. g., Dexter v. Wilde Tool Co., 188 Kan. 816, 819, 365 P. 2d 1092, and cases there cited). And it further follows that the trial court’s judgment and award, based on such findings, must be upheld unless, of course, under the facts of record other provisions of the statute (44-5a01 and 44-5a22, supra.) preclude the affirmance of such award and judgment.
Ignoring other provisions of the occupational disease statute, to which we have heretofore specifically referred, appellants direct our attention to the provisions of G. S. 1961 Supp., 44-5a06, which, so far as here pertinent reads:
“The date when an employee or workman becomes incapacitated by an occupational disease from performing his work in the last occupation in which he was injuriously exposed to the hazards of such disease, shall be taken as the date of the injury equivalent to the date of accident under the workmen’s compensation act. Where compensation is payable for an occupational disease, the employer in whose employment the employee or workman was last injuriously exposed to the hazards of such disease, and the insurance carrier, if any, on the risk when such employee was last so exposed under such employer, shall be liable therefor, without the right to contribution from any prior employer or insurance carrier; . . .”
and insist that the foregoing provisions, when considered in connection with the facts of record, preclude the affirmance of the trial court’s award and judgment.
The trouble, from appellants’ standpoint, with all arguments advanced by them on this point is that inherent in the previously quoted findings of the district court is the finding that claimant was not injuriously exposed to the hazards of dermatitis in his second employment with Fox. It may be added that, in the face of the record presented, this was a finding of fact and is as binding on appellants as if it had been specifically set forth in the findings and judgment.
Thus we come to the question — does the record disclose some substantial competent evidence to sustain such finding? Without detailing the evidence it may be stated that we have painstakingly reviewed portions of the record touching on the point now in question and have reached the conclusion that, while it must be conceded there was some evidence which would have warranted the district court in making a contrary finding, if it had seen fit to do so, there was nevertheless some substantial competent evidence, which it obviously gave credence, to warrant its ultimate decision that claimant was not injuriously exposed to the hazards of dermatitis in his second employment. Therefore, having reached that conclusion and applying the universal rule of our decisions, to which reference has been heretofore made, we are constrained to hold appellants’ position on the point now under consideration lacks merit and cannot be upheld.
We find nothing in the record or in other contentions advanced by appellants to warrant a reversal of the award and judgment. It is therefore affirmed. | [
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The opinion of the court was delivered by
Price, J.:
This is an action wherein plaintiff seeks to recover certain sums of money belonging to it and which were unlawfully appropriated or converted to the use and benefit of defendants. The case is still in the “pleading stage,” and defendants have appealed from various adverse orders.
Very highly summarized, the record presented shows substantially the following:
In the petition it is alleged that plaintiff, Rock, Inc., is engaged in the quarrying and sale of limestone for agricultural and road purposes, with its principal place of business and office at Frontenac, in Crawford county. The defendant, George O. Fauvergue, Jr., hereafter referred to as F, is a resident of Fort Scott, in Bourbon county. Defendant, Pittsburg Reclaiming Company, Inc., hereafter referred to as Company, has its principal place of business in Crawford county. Defendant F was secretary-treasurer of plaintiff and was the sole officer in charge of its business, and as such was in charge of all sales, purchases, books and records, and handled all monies and accounts of plaintiff. Defendant F also was the managing officer, primary stockholder and president of defendant Company, and had full charge of and was in control of all receipts and disbursements of monies of the Company. Checks were drawn on plaintiff by F, payable to the Company, although at the times in question no sums were due and owing by plaintiff to either of the defendants. F also borrowed money from various banks on the credit of plaintiff, but such borrowed sums were not deposited to the credit of plaintiff. Certain checks made payable to plaintiff were endorsed by F but never deposited to plaintiff’s account. F, when mailing deposits for plaintiff, would make cash withdrawals for the benefit of both defendants, although the amounts so withdrawn were not due and owing to defendants. All of the above and other alleged transactions by F were made without authority.
Service of summons on defendant Company was made in Crawford county — where the action was filed.
Service o£ summons on defendant F was made in Bourbon county —that being the county of his residence.
Each defendant filed a motion to quash service of summons. Both motions were overruled.
Defendants filed a joint motion to require plaintiff to make its petition definite and certain in thirty-four particulars. They also moved to strike certain allegations from the petition.
Defendants also filed a joint motion to require plaintiff to separately state and number its alleged causes of action.
The motion to make definite and certain was sustained in part.
The motion to strike was overruled.
The motion to separately state and number was confessed by plaintiff in open court and plaintiff was given twenty days in which to file an amended petition.
The amended petition, not' being filed within the twenty-day period, defendants subsequently filed a motion to dismiss the action. This motion was denied and plaintiff was granted permission to file an amended petition out of time.
Defendants then filed their motion to strike the amended petition from the files or, in the alternative, to dismiss the action. This motion was denied.
Each of the defendants then filed a demurrer to the petition and amended petition.
Each demurrer was overruled, and defendants have appealed from all of the aforementioned adverse rulings and specify each as error.
Concerning the correctness of the order overruling the separate motions to quash service of summons, the contentions appear to be:
The sheriff’s return on the summons issued to defendant Company in Crawford county reads:
“Received this writ May 18, 1959 and as commanded therein, I summoned the following defendant at the time and in the manner following, to-wit:
“Pittsburg Reclaiming Co., Inc., a Kansas corporation, with registered office in Crawford County, Kansas, on May 18, 1959,
by delivering in said County and State a true and correct copy of said summons with all endorsements thereon personally to Zula Fauvergue, she being the Secretary-Treasurer of said corporation, the President, Resident Agent and other chief officers of the corporation not being found within said County and State.”
Defendant Company contends the service thus had is not in compliance with G. S. 1949, 60-2518, which in material part reads:
“A summons against a corporation may be served upon the president, resident agent, mayor, chairman of the board of directors, or trustees, or other chief officer; or, if its chief officer is not found in the county, upon its cashier, treasurer, secretary, clerk or managing agent; . .
Without further discussion we hold that the service upon defendant Company in Crawford county was, on its face, in compliance with the mentioned statute, and as to defendant Company the motion to quash was properly overruled.
With respect to defendant F, a resident of Bourbon county, and who was served with summons in that county, it is contended that (1) there was no valid service of summons upon defendant Company in Crawford county, and therefore jurisdiction was not obtained of that defendant so as to authorize service of summons upon him in Bourbon county; and (2) the petition does not allege a joint liability of defendants so as to authorize service of summons upon him in Bourbon county.
We have already held that valid service of summons was had in Crawford county on defendant Company.
G. S. 1949, 60-2502, reads:
“Where the action is rightly brought in any county, according to the provisions of article 5, a summons shall be issued to any other county against any one or more of the defendants, on die plaintiff’s praecipe.”
The mentioned statute has been considered many times and the rule is that where joint liability of multiple defendants is sufficiently alleged in a petition filed in a county where one of such defendants can be and is served with summons, the issuance and service of summons upon another or other defendants in another county is justified. The test is not whether the alleged joint liability can be established at the trial, but whether the petition sufficiently alleges joint liability of such defendants. (Jones v. Coate, 177 Kan. 109, 276 P. 2d 329; First National Bank of Topeka v. United Telephone Ass'n, 187 Kan. 29, 353 P. 2d 963.)
Examining the petition, we have no difficulty in concluding that it sufficiently alleges a joint liability of defendants so as to justify the issuance of summons to defendant F in Bourbon county, and his motion to quash service of summons was likewise properly overruled.
With respect to the order overruling in part the motion to make definite and certain, and the orders overruling the motions to strike, granting plaintiff permission to file an amended petition out of time, and overruling the motion to dismiss the action, it is sufficient to state that rulings on such matters rest to such a great extent within the sound discretion of a trial court that they will not be disturbed absent a clear showing of abuse of judicial discretion. Without detailing the numerous points raised by the motions in question, we simply hold that no abuse of discretion has been made to appear, and under all of the circumstances disclosed by the record the rulings in question were proper.
With respect to the orders overruling the demurrer of each defendant to the petition and amended petition, a detailed discussion of the many transactions alleged in those pleadings would serve no purpose other than unnecessarily to encumber this opinion. We have examined the allegations of the petition and amended petition and are convinced they are sufficient to withstand each of the demurrers, and each was properly overruled.
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The opinion of the court was delivered by
Mason, J.;
A. B. Lloyd is the holder of a certified check for :$5,000 on the Butler County State Bank, which was outstanding at the time the bank passed into the control of the banking department in a state of insolvency. He brought this action against the bank, the bank commissioner and the receiver, asking that in addition to a general charge against the assets he be given a right to look to the guaranty fund for the amount; or if that were denied that he be made a preferred claimant. His claim was adjudged to be a charge against the guaranty fund, but otherwise his claim of preference was denied. He appeals from the latter part of the decision and the defendants appeal from that in relation to the guaranty fund.
1. The check was drawn to the order of Nelson Brothers by the plaintiff, who procured it to be certified and then placed it in another bank with a contract for the drilling of an oil well, in accordance with an agreement theretofore made. After the defendant bank was closed the check was presented for payment, which was refused, and the plaintiff then paid the holder its amount and it was returned to him. The defendants suggest that the plaintiff may not be authorized to enforce collection of the check — that in contemplation of law the certification may be regarded as having been procured by the payees, and the plaintiff’s redemption as a voluntary act. His holding of the check under the circumstances stated would seem to protect the bank and those distributing its assets against any claim on the part of Nelson Brothers. But in any event there is an admission in the pleadings that the defendants are liable to the-plaintiff on the check as a common claim.
2. The guaranty fund is for the benefit of depositors with respect, to deposits. (R. S. 9-204, 9-206.) “Speaking generally, to create a deposit, within the meaning of the statute, money or the equivalent of money must in intention and effect be placed in or at the command of the bank, under circumstances which do not transgress-specific limitations of the bank guaranty law.” (National Bank v. Bank Commissioner, 110 Kan. 380, 390, 204 Pac. 715.) A certified: check is in effect an accepted bill of exchange drawn against a deposit. Its amount is withdrawn from the deposit of the drawer, which is diminished t'o that extent, and the bank becomes liable to-the holder of the check. While the bank’s responsibility to him is-much the same as though he held a certificate of deposit, the relation between them as debtor and creditor is still more analogous to-' the situation in that regard created by the bank’s acceptance of a. bill of exchange. The holder of a certified check, which is payable on presentation, may refrain for a considerable period from asking payment, but he does not thereby become one of the class it was the-intention of the legislature to protect by the guaranty'fund. He has made no deposit. He is merely a creditor who has delayed presenting his claim.
The plaintiff cites a case to the effect that the holder of a. cashier’s check, which was delivered to him in exchange for his own, is within the protection of the guaranty fund, under a statute protecting “unsecured and noninterest-bearing deposits.” (Middle kauff v. State Banking Board, 111 Tex. 561.) The court said: “Had relator had his own $3,000 check certified, or had he taken the bank’s formal certificate of deposit for that amount, no one could maintain that he meant such negotiable paper to extinguish the bank’s liability to him as a depositor.” (p. 567.) The basis of the decision is indicated by this language.
“We express no opinion as to the right, with respect to the guaranty fund, of a payee of a cashier’s check, to whom no obligation has been previously incurred under a general deposit. It is enough to say that relator’s unextinguished rights under his open, unsecured and non-interest-bearing deposit furnish the basis on which we predicate the decree in his favor.” (p. 568.)
Whether or not that case is distinguishable in principle from this we hold the certification of the plaintiff’s check, although it was not paid because not presented until after the bank had been closed, effected such a change in the situation of the plaintiff that he was no longer entitled to look to the guaranty fund as security for the amount of the check, upon the theory that by its nonpayment he was restored to his rights as a general depositor, or upon any other ground.
3. The certification of a check makes the bank the primary debtor of its holder, under an absolute duty to pay, without reference to the state of the drawer’s account. But by the act the bank does not undertake to set aside specific coins, greenbacks or other currency to meet this obligation. Nor does any practice of that kind exist. Language is often used which may be open to interpretation as indicating the contrary, just as a depositor is often spoken of as having money in the bank- — an expression technically inaccurate but not misleading, everyone understanding that the depositor is a creditor of the bank but has no title to any of the money in its vaults. A good illustration of the expressions referred to is the following text, from which is adapted the first paragraph of the syllabus in McAdoo v. Bank, 106 Kan. 662, 189 Pac. 155:
“As a general proposition it may be said that the certification of a check by a bank is equivalent to the acceptance of a bill of exchange by the drawee, and implies that the check is drawn on sufficient funds in the drawee’s possession, that they have been set apart for its payment, and that they will be thus applied when the check is presented for that purpose.” (7 C. J. 706.)
The statement in the syllabus referred to that the certification implies the check is drawn upon sufficient funds, which have been set apart for its payment and will be so applied on presentation, must be interpreted in the light of the situation to which they were applied. 'It was made in a case where the bank sought to escape its own liability to the holder of the check and give the drawer an opportunity to make a defense to it. It does not mean that money had physically been set apart to meet the check, but that a corresponding amount had been deducted from the drawer’s deposit and in effect entered to the credit of the owner of the check. The opinion quotes from an earlier case a more general statement of the effect of certification:
"A request upon a bank that it accept a check is a request for the creation of a legal relation between the holder and the bank wholly without and beyond the purview of the paper. If such relation be established it imposes upon the bank a liability to a party to whom it was not before bound at all, and it converts the privilege of the bank to pay if in funds into an absolute and unconditional duty to pay, no matter what may be the state of the depositor’s account.” (Bank v. Bank, 74 Kan. 606, 609, 87 Pac. 746.)
A paragraph of a note to the passage from Corpus Juris above quoted reads: “The certifying creates no trust in favor of the holder and no lien on any particular assets of the certifying bank.” In what appears to be the-leading case on the subject, cited in the note referred to, it is said:
“And as said by Rapallo, J., in speaking of the nature of the contract that a bank makes on certifying checks (Thompson v. Bank, 82 N. Y. 6):
“ ‘The bank has given a negotiable obligation to the holder of the check which is equivalent to a certificate of deposit. If the holder of the certified check should lose it, he would still have his remedy upon it against the bank, but could not have recourse against the drawer, whose funds had thus been locked up or transferred to the credit of- another party.’
“The contract, therefore, that a bank makes when it certifies a check, is in effect an acceptance. There is no trust relationship between such bank and the holder of the check, nor is the bank bound to set apart from its other funds a particular sum for its payment. (Bank v. Leach, 52 N. Y. 350; Lynch v. Bank, 107 N. Y. 179, 13 N. E. 775; Bank v. Bingham, 118 N. Y. 349, 23 N. E. 180.) These cases are authority for the proposition that by the certification of a check, or the issuance of a certificate of deposit, a bank becomes debtor to the holder of such check, and is not obliged to set apart any portion of its assets as a particular fund to pay such check.” (People v. St. Nicholas Bank, 28 N. Y. S. 407, 412.)
This case is cited in 1 Morse on Banks & Banking, 5th ed., sec. 414, with the statement: “The certification of a check will not give the holder a preference over other creditors upon insolvency of the bank.”
The case is also cited, with others, in support of this text:
“The certification creates no trust relation between the bank and the holder of the check, so as to give the holder a lien upon any particular fund. The relationship merely of debtor and creditor is established, and the bank is not obliged to set apart from its other funds a particular sum for its payment.” (5 A. & E. Encyc. of L., 2d ed., 1056.)
The federal statute forbids the officers of a national bank to certify a check unless the drawer has on deposit an amount equal to that for which it is drawn, but expressly provides that any check so certified shall be a valid obligation of the bank. (R. S. § 5208; 40 U. S. Stat. 232.) State banks are subject to a like regulation. (R. S. 9-139.) The federal law requires the amount of a certified check to be entered to the credit of the dealer upon the books of the bank, but does not direct the setting apart of a specific fund to meet it. (R. S. §§ 5208, 5209; 40 U. S. Stat. 232.)
Good banking requires that when a check is certified the drawer shall actually have its amount on deposit, that an entry shall be made on the bank’s books showing the withdrawal of the amount from his account, and its transfer to a fund from which payment of the check is to be made; and that this fund will be maintained until the check’s presentation. The bank by certifying a check is regarded as asserting the existence of these conditions, but its act is contractual rather than evidentiary. It undertakes to pay the check on presentation, regardless of the state of the drawer’s account. Its obligation in this respect is of no different character than that to a depositor to pay a check drawn on sufficient funds. If the drawer of a check which a bank has certified has in fact no funds on deposit the instrument is still a certified check and the bank’s liability thereon is in no wise affected.
Money may be deposited with a bank for a particular purpose as, for instance, to pay a specified note or draft, under such circumstances that while 'it is not strictly a special deposit, although sometimes given that term, the depositor may upon insolvency recover it as a trust fund (7 C. J. 631, 632), but that it is upon the theory that the relation of principal and agent existed, which is not the case here; and we have already determined that the holder of the certified check is not in virtue thereof a depositor.
We agree with the district court in its conclusion that the certification of the check did not give it a preferential standing as a charge against the assets in the receiver’s hands.
The judgment is reversed so far as the plaintiff’s claim is made a charge against the guaranty fund, and affirmed so far as it is denied a preference over ordinary debts of the bank. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action in ejectment, for a strip of land about 80 rods long and 12 feet wide at one end and 5 feet wide at the other. It was tried to the court. Judgment was rendered for plaintiff. The defendant has appealed.
The circumstances giving rise to the controversy are substantially as follows: On October 6, 1908, and for some time prior thereto, Geo. H. Graves was the owner of the southeast quarter of the northeast quarter of section 24, township 13, range 1, in Dickinson county (except the north 10 acres thereof). There was a road along the south” line of this land. On October 6, 1908, Graves sold the south nine acres of his land to one Ramsey. Perhaps Ramsey wanted nine full acres, exclusive of the road; at any rate he agreed to buy only on condition that the land be measured and the north line of the tract he was buying should be definitely fixed and marked, and that he and Graves should build a partition fence on such line — each to build one-half of the fence. This was agreed to by Graves. A surveyor was called in, the nine acres sold to Ramsey was meas ured, iron pins were driven at the northeast and at the northwest corners of the nine-acre tract and the line was run between the nine-acre tract sold to Ramsey and the land retained by Graves. The parties agreed this should be the line between them. The sale was then completed. The nine acres so measured off was conveyed by Graves to Ramsey. Soon thereafter they built a partition fence on the line so. marked and measured. Ramsey took actual possession of the nine acres which, he had purchased from Graves and farmed it up to this partition fence. Plaintiff is the owner of this nine acres through mesne conveyances from Ramsey. He and his grantors had been in actual possession of such property from October 6, 1905, to April 5, 1924, when defendant took possession of the strip in question under circumstances which will now be stated.
Some time after selling the nine acres to Ramsey, Graves sold the twenty acres directly north of it. The defendant is the owner of this twenty acres through mesne conveyance from Graves. Early in April, 1924, the defendant White had his twenty acres surveyed. This survey showed his south line to be south (12 feet at one end and 5 feet at the other) of the partition fence built by Graves and Ramsey on the line which they established, as above recited. Defendant tore down this partition fence and took possession of this strip of land. Hence, this lawsuit.
Appellant contends that the possession of plaintiff, and his grantors, to the strip in question, although for more than fifteen years, did not ripen into title, for the reason that such possession was not adverse to defendant and his grantors; citing Scott v. Williams, 74 Kan. 448, 87 Pac. 550; Edwards v. Fleming, 83 Kan. 653, 112 Pac. 836, and Kinne v. Waggoner, 108 Kan. 814, 197 Pac. 195. In these cases the doctrine is stated and applied that one who holds title to land, and by mistake as to a boundary line occupies a strip of land owned by another, without any intention to take and hold land which does not belong to him, or any land beyond the tru’e line of the land which he owns, will not acquire title to such strip by adverse possession. In such a case, if the intent to claim title exists only on condition that the fence is on the true line, the intention is not absolute but conditional, and the possession is not adverse. If, however, there is a clear intention to claim the land up to the fence, whether it be the correct boundary or not, the possession will be held adverse.
But under the facts in this case there is no necessity of resorting to the doctrine of acquiring title by adverse possession. The evidence in this case shows there was an agreement between Graves and Ramsey as to the boundary line between them. Ramsey made it a condition of his purchase that the line be so established. When the land was measured off, the stakes set, and the line laid out, the parties agreed that should be the- division line between them, and that they would build a partition fence on that line, and they did so. Ramsey claimed to own the land up to that partition fence because he had bought it and paid for it. The evidence clearly supports the view that he had a clear intention to claim the land up to the fence. Under the facts established the case is governed by the rule announced in Steinhilber v. Holmes, 68 Kan. 607, 75 Pac. 1019, where it was held:
“Where parties by mutual agreement' fix boundary lines and thereafter acquiesce in the- lines so agreed upon, they must be considered as the true boundary lines between them, even though the period of acquiescence falls short of the time fixed by statute for gaining title by adverse possession.”
In Shafer v. Leigh, 112 Kan. 14, 209 Pac. 830, it was held:
“Where the owner of a block of a platted addition to a city causes a resurvey of the block to be made and causes stakes to be placed to indicate the comers of the lots, and then conveys the lots to separate purchasers, describing the land as described in the plat, and uses the stakes to indicate the comers of the lots, and the purchasers agree among themselves that the lines between the lots shall be as indicated by the stakes, those lines, as between those purchasers and their grantees, become the boundaries of the lots, where the original marks indicating the location of the lots have become obliterated and the location of the corners is unknown.”
And see Rodriguez v. Ranch Co., 17 N. M. 246, where many cases ■ on the subject are collected and the doctrine applied.
The court below made no specific findings of fact, but it is clear that the judgment for plaintiff is based upon the evidence and is in accord with the authorities.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This appeal required the consideration of the ■ right of officers to collect a tax assessed upon a stock of goods from one who purchased the entire stock after the assessment was made and which had not been paid by the seller. The question is raised upon a demurrer to the petition of the purchaser, who sought to enjoin the collection of the tax, which was sustained by the trial court.
In the petition it was alleged, in substance, that on March 1,1924, a stock of groceries was owned by W. H. Blenkarn and was listed by him for taxation. Verne C. Andrews, the plaintiff, owned the building and fixtures where the business was carried on and he held a mortgage on the goods of Blenkarn. About a month after the assessment was made Andrews took possession of the entire stock under his chattel mortgage, and thereafter operated the grocery. It appears there was a default by Blenkarn in the performance of the conditions of the mortgage under which Andrews was entitled to take possession of the goods. Since taking possession he has operated the grocery and in the course of his business has sold from the stock and replenished the same from time to time so that at the time the action was begun no part of the stock taken over in April, 1924, remained. It was alleged that Andrews had paid all the tax assessed against him and his contention was that he was not liable for the tax on the goods, but that a tax warrant had been issued and placed in the hands of the sheriff who had indicated that he was about to levy it upon other property now in the store. The trial court ruled that a cause of action had not been stated in plaintiff’s petition and plaintiff has brought the question up for review. The controlling statute provides:
“If any person, in this state, after his personal property is assessed and before the tax thereon is paid, shall sell all of the same to any one person, and not retain sufficient to pay the taxes thereon, the tax for that year shall be a lien upon the property so sold, and shall at once become due and payable, and the county treasurer shall at once issue a tax warrant for the collection thereof, and the sheriff shall forthwith collect it as in other cases. The one owing such tax shall be civilly liable to any purchaser of such property for any taxes he owes thereon, but the property so purchased shall be liable in the hands of the purchaser or purchasers for such tax: Provided, however, If the property be sold in the ordinary course of retail trade it shall not be so liable in the hands of the purchasers.” (R. S. 79-317.)
The statute has been interpreted as applying to sales in bulk of all of a class of property without retaining sufficient of the same to pay the taxes thereon, and it was held that where such a sale is made after the tax has been assessed and before the taxes have been paid, a lien arises on the goods purchased sufficient to pay the taxes thereon. (Witschy v. Seaman, 83 Kan. 634, 112 Pac. 739. See, also, Boxer v. Sears, 119 Kan. 733, 241 Pac. 443.) It is clear that a lien attached to the stock of goods- purchased by plaintiff on which the taxes were not paid and that he took and held the property so purchased subject to that tax. Such a lien follows the goods into the possession of a purchaser except as to that which has been sold in the ordinary course of retail trade, and so long as the purchaser holds the property it may be seized and sold to satisfy the tax. Plaintiff argues that an interpretation which would require one who has already paid the taxes assessed against him to pay those assessed against another would be unjust, but all know that property is subject -to be taxed and every purchaser can ascertain in advance whether taxes assessed against property which he proposes to purchase have been paid. He should inquire as to liens before he purchases property and he necessarily takes the risk of a seizure of the same to satisfy the lien just as he would if the property purchased had been subject to a mortgage or execution lien. Here, however, plaintiff alleges that he no longer has any of the goods purchased from Blenkarn, and he argues that in no event can a lien extend to property other than that purchased from Blenkarn. The statute appears to place the liability on the property purchased rather than to make the tax a personal liability of the purchaser.
Defendant contends that the lien attaches to the stock of goods and covers those which have been substituted for those actually purchased and hence it is immaterial that none of the goods purchased could be found or seized by the officer. The same contention was made by a purchaser in Mercantile Co. v. Blair & Wendt, 123 Ia. 290, where the tax against a stock of goods purchased had not been paid, and the goods had been disposed of by the purchaser. A statute of Iowa provided that taxes upon a stock of goods or merchandise should be a lien thereon when sold in bulk and could be collected from the owner, purchaser or vendee, and it was held that the statute created a lien on the goods for the taxes, but that the tax did not become a personal liability against the purchaser. The lien, it was said, might be enforced against the goods and a collection made by the ordinary methods provided for the collection of taxes, but could not be collected by an ordinary action for debt. It was remarked:
“In no event is anyone other than the owner of the goods when the tax is assessed and levied against it, under a personal liability to pay the taxes. Trae, a lien for the amount of these taxes follows the goods so long as they remain in bulk, but this lien is not a personal charge against the vendee.” (p. 293.)
In a note in 41 A. L. R. 190, a list of decisions from several states are collected based on somewhat similar statutes which tend to support the view that in a sale of property the purchaser takes it subject to a lien but that no personal liability is incurred by him for the taxes assessed against his seller, and that the lien only extends to the property purchased, and does not attach to other goods that he may acquire or possess.
Our statute provides that the lien does not follow the property sold at retail in the ordinary course of business and to meet the difficulty of enforcing the lien in such a case, it is provided that when the goods are sold without retaining enough to pay the taxes levied thereon which have not been paid, the taxes at once become due and payable and the county treasurer may issue a tax warrant for the collection of the tax, which the sheriff shall forthwith collect. In this manner the tax may be collected before any part of the property is sold by retail or otherwise disposed of. If a part of the property remains in the possession of the purchaser and can be identified it may be seized and sold in satisfaction of the lien. In case they are intermingled with other goods it is the duty of the purchaser to segregate or point them out to the tax officer. If he intermingles them with other goods and fails to point them out the doctrine-of the confusion of goods would apply and any of the goods so intermingled might be taken-for the tax. (Mills v. Thurston County, 16 Wash. 378; Robinson v. Youngblood, 54 Ind. App. 669.) Here, however, it is recited in the petition that none of the property purchased is in the possession of the plaintiff and therefore it must be held that a cause of action was stated in the petition.
The judgment is reversed and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Johnston, C. J.:
R. C. Jackman, the surviving partner of the firm of Bowersock Mills and Power Company, brought this action against the Kansas Electric Power Company to recover on two claims, one for a balance of $117,791.74, alleged to be due for electric current furnished to and used by the latter. The partnership, spoken of hereinafter as plaintiff, owned a water power and also mills at Lawrence. The Kansas Electric Power Company, hereinafter designated as defendant, is the successor in interest of the Lawrence Electric Light Company, and the Lawrence Railway and Light Company, and is operating an electric street-railway system as well as the lighting of the city of Lawrence. In 1906 a contract was made between the plaintiff and the Lawrence Electric Light Company, a predecessor of the defendant, in which the plaintiff agreed to purchase certain equipment and furnish electric current generated by water power suitable for commercial lighting at one and one-fourth cents per kilowatt. Later and on April 24, 1909, when the Lawrence Railway and Light Company had arranged a purchase of the property of the Lawrence Electric Light Company, the plaintiff and the Lawrence Railway and Light Company entered into a contract by which it was provided that plaintiff should furnish electrical energy to defendant for twenty-one years suffi cient for the operation of the street cars and the lighting system of the defendant, also to supply an auxiliary steam or gas plant so far as necessary, and to install electric storage batteries of a stated power with certain equipment necessary to supply a specified character of current. While providing for the auxiliary plant and storage batteries, there was a stipulation in the contract that:
“It is not the understanding nor agreement that the Bowersock Mills and Power Company will operate the steam or gas plant continuously, or the water power plant and steam plants together continuously. It is the understanding that the water power under ordinary conditions will supply the power to be required, and the steam or gas plant is for extraordinary occasions, accidents or emergencies.”
The plaintiff was operating mills of its own from the same power plant, but it was stipulated that the defendant should have the first right and the first call on the auxiliary plant, and that plaintiff should not use or dispose of power from that plant unless there remained sufficient power to care for the demands of the defendant. Power was furnished to defendant under the contract from 1909 until about July 1, 1919, at the stipulated price of one and one-fourth cents per kilowatt, but shortly before that time plaintiff indicated a purpose to terminate the contract, and thereupon a dispute arose between the parties as to the right of plaintiff to.terminate it. A conference between the parties representing plaintiff and defendant was held and both being desirous of having the question settled, it was agreed that plaintiff should serve a notice upon defendant of its intention to abrogate the contract, and the defendant should thereupon procure an injunction so that the matter in dispute might be determined. The notice was served upon defendant, the temporary restraining order was asked for and issued, restraining the plaintiff from cutting off the supply of electric energy until the further order of the court. No bond was given ydien the order was obtained nor was any bond ever asked for or furnished. Evidently it was anticipated that an early decision of the dispute would be obtained, but for some reason not shown a decision of the district court was not made until January, 1920, when an appeal was taken to the supreme court, and in November, 1921, that court reversed the judgment of the district court sustaining the injunction, and held that the plaintiff had a right to terminate the contract. (Utilities Co. v. Bowersock, 109 Kan. 718, 202 Pac. 92.) During this litigation power was furnished by the plaintiff as had been previously done, and it was paid for at the price fixed in the contract. There was no specific agreement with reference to the price, but defendant insists that it was tacitly understood that the contract price would be the measure of compensation to be paid until the question of the right to abrogate the contract had been settled. The reasonable value of electric energy during the injunction period was found to be a little more than two cents per kilowatt, and would not exceed two and one-fourth cents per kilowatt. There was a finding that the evidence was not sufficient to show an express agreement that the old rate should continue in force during the contemplated litigation, nor any expression by either party of an intention that a different rate should be charged. On this branch of the case the trial court found that each month during what is termed the injunction period the plaintiff rendered bills for the electric current in which the whole number of kilowatts furnished was stated, the price per kilowatt, one and one-fourth cents, and the total amount due. On these bills the defendant issued its voucher check reciting “in full settlement of statement accompanying this check.” Upon the check was printed an indorsement as follows: “The indorsement of the payee hereon is an acknowledgment - of the receipt of the statement referred to on the face of this check and in full payment thereof.” It was further found that all of the checks were indorsed and cashed by the plaintiff without question, objection or comment. Among other things the court found was that during this period the plaintiff at no time asked, demanded, or in any way intimated to defendant that a different price would be charged; that during that time the defendant believed that it was paying in full for the service rendered and made the payments as specified under the belief that payment in full was being made. Judgment was therefore rendered denying a right of recovery upon the first count of plaintiff’s petition.
It is contended by plaintiff that the contract having been abrogated in July, 1919, it had the right to demand and receive the reasonable value of the electric energy furnished; that defendant by its act in obtaining an injunction had placed the plaintiff in a position where it could not present bills or demand more than the contract price. It is contended that while the injunction was pending it was not permissible for it to insist on a higher price until the right to abrogate the contract had been determined. It is said that the district court having adjudged that the plaintiff could not terminate the contract nor change the price, plaintiff could have done nothing more under the circumstances than to have notified defendant that if the judgment was reversed plaintiff would demand a higher rate.
On the other hand, it is insisted that there has been accord and satisfaction, in that the monthly bills were presented, paid in the manner hereinbefore described, and, further, that under the agreement to submit the matter of the abrogation of the contract to the court, and the action of the parties since that time, as well as the proceedings had, the plaintiff was estopped to claim more than was paid and which was accepted without objection by plaintiff. On this branch of the case the finding and conclusion of the trial court in favor of defendant must be sustained. A written opinion was prepared and delivered by that court in which the facts relating to this claim were carefully considered and the grounds of the decision so well stated that the opinion is reproduced here with approval and a judgment of affirmance. After reciting facts already stated, the opinion proceeded:
“In January, 1922, the defendant company elected to buy the plant as provided for by the contract, and took the plant over. Afterwards this suit was brought. The first count is to recover for the reasonable value of the current furnished the defendant during the time the injunction order was in force. The first question presented is as to the character of this first cause of action. Is it a suit in damages, or is it a suit upon an implied contract? If it is a suit in damages, it cannot be maintained, because it would be a suit brought for wrongfully obtaining the injunction, and inasmuch as no bond was given, a recovery could not be had thereon. If it is a suit upon an implied contract, a recovery might be had. The plaintiff is not seeking to recover profits lost, but is seeking rather, to recover the reasonable value of the service which it furnished during the time the injunction was in force. The plaintiff offered evidence as to the cost of production, and the expense which it was required to pay, by reason of furnishing this current, but I think at the time that it was offered, it was made very clear, that it was offered upon the theory of its being a proper element to be considered in arriving at the reasonable value of the service furnished. Under the pleadings I think the court should hold that this was a suit brought upon an implied contract. The law recognizes three kinds of contracts, namely, express contracts, contracts which are implied in fact, and contracts which are implied in law. I think that the substance of the petition clearly shows that this comes within the third class, as being a contract implied by law. That kind of a contract is recognized in the case of Foundling Hospital v. Harrington, 113 Kan. 521, which I will not take the time to read, as no doubt all the parties are familiar with it. In other words, I think that the plaintiff’s theory of recovery is tenable. The extent of the service furnished is definitely ascertained. During this period, there were some 6,730,780 kilowatts delivered. The contract rate was one and one-fourth cents per kilowatt. The defendant paid the contract rate during that time. The plaintiff now claims that the contract rate was not the reasonable value of the energy that was furnished, but that it was worth three cents per kilowatt, and that there is now due the plaintiff the difference between the contract rate and the rate actually paid by the defendant, which it claims was the reasonable value of the energy so furnished.
“From the evidence I think the court can fairly conclude that the value of the steam-generated electricity at Lawrence at the time in question was worth slightly in excess of two cents per kilowatt; that it could be procured from Leavenworth or Kansas City for two and a fraction cents; that the price of it varied, but that two and one-fourth cents would probably be the fair and reasonable value of the steam-generated electricity. Some of the electricity furnished by the plaintiffs ’to the defendant was generated by the water wheels, the manufacturing cost of which is much less than that manufactured by steam.
“The first defense made by the defendant is, that there has been an accord and satisfaction by the plaintiff, and that there is nothing due the plaintiff by reason of the energy furnished. After the temporary injunction order was served upon the plaintiff, it continued to furnish electrical energy to the defendant just like it had for the ten years preceding, from the time the contract was entered into in 1909. The contract was for a period of twenty-one years, and in 1919 when the controversy arose between the parties, still had eleven years to run.
“Each month the plaintiff billed the defendant for the amount of current furnished during the preceding month. I have taken exhibit Q as a sample bill. The current furnished the defendant was divided into two classes, that which was furnished for the railway company’s use in the operation of its streetcar system, and the other that was furnished to the inhabitants of the city of Lawrence for illuminating purposes, each class being measured by a separate meter, and bills rendered therefor. The bill rendered August 1, 1919, for electric current furnished for illuminating purposes shows 104,540 kilowatts, at 1% cents, $1,306.75; while the bill rendered on the same date for electric current furnished for the operation of the street-car system shows a total of 34,990 kilowatts, at 114 cents, $437.38. These bills were rendered for electric energy furnished during the time the injunction order was in effect. On receipt of these bills the defendant would make a monthly statement of them, and issue their voucher check reading as follows:
“‘Light current ............................ $1,306.75
Railway current.......................... 437.38
Total................................. $1,744.13’
“On the bottom of the voucher it says:
“ ‘Pay to the order of Bowersock Mills and Power Company, $1,744.13, amount payable in full settlement of statement accompanying this check.’
“The check read the same way: ‘In full settlement of statement accompanying this check.’ I presume that the statement has reference to the items at the head of the voucher, on the voucher check. On the back of the check is 1h« indorsement:
‘“Indorsements. The indorsement of the payee hereon is an acknowledgment of the receipt of the statement referred to on the face of this check, and in full payment thereof.’
“These checks were made monthly by the defendant and given to the plaintiff company.
“The first question is, did that constitute an accord and satisfaction? I think we must first determine what the circumstances were at the time these checks were given. In 1918 the plaintiff complained, and had been for some time, that the contract was burdensome on it, and it had a right to terminate the contract under the terms thereof, and in fact did serve a notice of termination in 1918, but never carried it into effect. In June, 1919, a notice to terminate was served by the plaintiff upon the defendant and the injunction suit followed. No bond was given at the time that the temporary restraining order was procured from the probate court, no bond was ever given in the district court, and no bond was ever asked for. The validity of the proceedings was never challenged on account of the failure of the Railway and Light Company to give such a bond. The order of the probate court reads as follows:
“ ‘That said defendants (the plaintiff in this case) and each of them, be and they are hereby restrained, until the further order of the court, from discontinuing and cutting off the supply of electric energy necessary for the uses of said plaintiff.’
“The restraining order simply enjoined them from cutting off and discontinuing the supply of electric current to the plaintiffs in that case. Nothing was said as to the rate at which they should continue to furnish the electricity, other than that they were enjoined from cutting off the supply. Undoubtedly the Lawrence Railway and Light Company at the time thought that they were paying the full value of the service, all that they would be required to pay at the time of these various monthly payments. They were contending that they had a right to this service at the rate of one and one-fourth cents under the contract, and brought this injunction suit to determine whether or not the plaintiff had a right to abrogate the contract. The defendants undoubtedly thought that" they had a right to that current at one and one-fourth cents — that was their position in court, and that was their position out of court. So far as the intentions of the defendant were concerned, its attitude in the matter, I am satisfied that they were of the belief they were paying the full amount which they were required to pay for the current during this interim. As to the attitude of the plaintiff, they either did or did not intend to charge an additional amount. If the plaintiff did not intend to charge anything in addition to the one. and one-fourth cents and billed the defendant company at the rate of one and one-fourth cents per kilowatt each month for the current used during the preceding month, the question of accord and satisfaction does not enter into the case. It isn’t a question of accord and satisfaction, but rather as to the effect of the extinguishment or payment of the debt. If the plaintiff only intended to charge one and one-fourth cents per kilowatt for the energy furnished and the defendant paid that amount, the debt was extinguished. If, on the other hand, they intended to charge an additional amount in excess of the one and one-fourth cents, then perhaps the doctrine of accord and satisfaction would enter into the case. But I am inclined to think, as I have stated, that it was not the intention of the plaintiff to charge any more, and that the debt was extinguished by these -monthly payments. If we assume that the plaintiff did in fact intend to charge more than the contract rate, then we would have to look into the facts and circumstances of the ease to determine whether or not there has been an accord and satisfaction.
“The authorities seem to make a distinction between a liquidated debt and an unliquidated debt. I do not know as it is necessary to go into the law of the case, as the attorneys are familiar with the rule. I might, however, state my own views with reference to it. When the amount of the debt is not liquidated and is in dispute, then a payment of an amount conceded to be due is an accord and satisfaction. The rule is just the opposite if it is a liquidated, statement. The rule is found in 1 C. J., at pp. 539-555 and 56-1, and as applied to checks at 562. In the case of Neely v. Thompson, 68 Kan. 193, 197, I think a good deal of light is thrown upon that proposition. I do not think it is necessary for the court to refer to it in detail, as the attorneys in this case are familiar with it. In that case Neely wrote and mailed a letter to Thompson, who was evidently an employee of Neely as United States marshal, with reference to an amount of money which was owing to Thompson. In the letter Neely said:
“ ‘I have credited you with all reallowances and send herewith a full statement of your account. Look it over, and if there is any item you do not understand, if you will come to Leavenworth we will go through the original statements and I will explain it to you. Please find inclosed my check for $7.90, payable to your order, by the Manufacturers’ National Bank of Leavenworth, which is in full satisfaction of balance due you on account of fees and expenses as deputy U. S. marshal.’
“The court held that the letter written under the circumstances stated in the opinion, constituted an accord and satisfaction when the check for $7.90 was retained by Thompson. The court in its opinion quotes from 1 Cyc. 333, note 72, as follows:
“ ‘According to the weight of authority, where a claim is in dispute and the debtor sends or gives the creditor a check for a less sum, which he declares to be in full payment of all demands, the retention thereof by the creditor constitutes an accord and satisfaction.’
“In the present case we have the defendant each month sending a check with the statement on the back reciting that:
“ ‘The indorsement of the payee hereon is an acknowledgment of the receipt of the statement referred to on the face of this check and in full payment thereof.’
“The statement does not say at what rate the current was billed. The original statement from the Bowersock Company said one and one-fourth cent. The statement referred to upon this check does not give any rate, but refers to it as the service which was supplied, and then says that it is payment in full for that service. I am inclined to think that if the plaintiff intended to charge an amount in addition to the contract price, and the amount of the excess was not ascertained, it would be unliquidated, and it would be as the plaintiff now contends, the reasonable value of the energy furnished. So far as the plaintiff is concerned, it probably never thought of any excess or ever having a claim therefor. If the plaintiff received these monthly checks intending at the time to charge more, and under circumstances which would indicate that the defendant thought it was paying the full amount for the energy furnished, I am inclined to think that would be an accord and satisfaction.
“I do not care, however, to base my opinion upon that point solely. I think there is the additional ground of estoppel that is perhaps the better one on which to base the opinion. The defendant contends that the plaintiff is es-topped to claim an additional sum in this case over the contract price. As I have stated, the parties had had some disagreement over this contract. In June, 1919, the four, parties met, Mr. Jackman and Mr. Bowersock, the two members of the firm operating the Mills and Power Company, and Mr. Emanuel and Mr. Skinner, president and superintendent respectively of the defendant company. These four men had a conference in Lawrence as to what should be done. It was discussed pro and con as to whether the plaintiff had a right to terminate the contract, the plaintiffs contending that they had that right and the defendant contending that they did not have that right. The testimony shows that Mr. Emanuel suggested the plan of the plaintiff serving a notice that they intended to abrogate the contract, and that then the defendant would go into court and procure a temporary injunction, restraining the plaintiffs from discontinuing the service, and in that way they could determine whether or not the contract could be abrogated by the plaintiffs, as they contended. The parties were very friendly at the time. The matter apparently was freely discussed. The railway company wanted considerable time, and wanted the notice to be of such duration that they would have plenty of time to prepare their case for filing. On the other hand, Mr. Bower-sock contended that the matter had continued too long and he wanted early action. The result of the conversation was that Mr. Emanuel’s request for a longer period within which to get ready for the suit was not complied with, and Mr. Bowersock served his notice, effective July 1. The procuring of this temporary injunction was discussed as a means of getting the matter before the court for determining the right of the plaintiff to terminate the contract.
“The court has had the testimony of those men transcribed. The evidence is not sufficient for the court to base a finding that there was an agreement that the old rate would continue. The transcript shows that Mr. Emanuel testified that it was to be a friendly suit, and that he suggested the giving of the notice, and that Bowersock and Jackman agreed to serve the notice. The testimony of Mr. Skinner goes further and shows that in response to a question which was asked:
“ ‘Q. I want to know, Mr. Skinner, what, if anything, was said at that conversation, either by Mr. Jackman or Mr. Bowersock, in regard to the furnishing of the current or service during the pendency of the case? A. Go ahead and continue the service.
‘“The Court: Who would? A. Between Mr. Bowersock and Mr. Emanuel; the agreement was that they would go ahead and furnish the current just as they had in the past.’
“Mr. Jackman testified, ‘I am satisfied there was never any such conversation as testified to by Mr. Skinner.’ So, you have the testimony of Mr. Emanuel seemingly to the effect that this matter was discussed, and that it was to be a friendly suit. Mr. Skinner testified that the Mills Company was to go ahead and furnish the current just as they had before, and Mr. Jackman testified for the plaintiff that there was no such conversation had. Under this testimony the court would not be warranted in finding that the parties expressly agreed that they would continue to furnish the current under the contract rate. I think the situation was just this: The plaintiffs contended that they had a right to abrogate the contract, the defendants contended that they did not have that right, and that both sides wanted the question determined. In fact, they had discussed having it determined, as I recall the evidence, by the judge of the district court, as an arbitrator, but it was said that would not be final, so they discussed bringing this suit. The suit was brought, the intent being by both parties to have a determination of the matter of the plaintiffs’ right to abrogate. I think both sides anticipated that the matter would soon be disposed of, and they hurried the matter along so the issues could be made up for the November term of court.
“Probably at the outset, as in many other cases, the parties never contemplated the filing of an appeal. I doubt if they contemplated an appeal to the supreme court at that time. They probably thought that within a few months they could get the matter determined by the district court of Douglas county. However, instead of an early determination and adjudication by the district court, a determination was not had until, I think, in January, 1920. The defendant then took an appeal and that delayed the final adjudication until November, 1921. I think the mandate was received in Douglas county from the supreme court some time in the early part of January, 1922. I do not think in 1919 that it was ever within the contemplation of either party that there would not be a final judicial determination as to whether or not the plaintiff had a right to teminate the contract, until 1922. The parties never contemplated such a delay. I think at that time neither side thought very much about the price; they wanted, and I think, anticipated an early decision. I do not think the parties agreed that it would be at the old contract price, that no express agreement was made, but simply that they anticipated an early decision would be had, and that was all they wanted.
“The defendant believed, or had reason to believe, that the plaintiffs intended, by what they did, to charge the value of this current every month. When the plaintiff accepted these checks in full payment therefor, and refrained from saying anything at that time as to their intention of charging an amount in excess of the contract price, I think they would be estopped from claiming the excess at this time. If the plaintiffs intended at that time to charge an extra amount, I think they should have notified the defendant of their intehtion to do so. It may very well be that the defendant could have gotten current elsewhere — they might have made some other arrangement. It might be that the defendant light company would have made some provision to recoup itself against this extra charge by an increase of rates to the general public for the electric current furnished by it. There was no suggestion whatever that any additional or excess amount would ever be charged, or that the plaintiff intended to make that claim. One would think that if the plaintiff had in mind the intention of claiming an amount in excess of what they had already asked for and received, they would have required the giving of an injunction bond, in order to protect themselves from any damages they might have suffered, if any. I think the very fact that there was no complaint made of the fact that the defendant had not given a bond, nor that the validity of the temporary injunction order was never questioned — and of course the temporary injunction order up until the time it went into final judgment was not valid without a bond — that question was never raised. I think both parties acquiesced in the suggestion that they wanted an early trial, and at the outset, at any rate, I doubt if the plaintiff ever intended to claim an additional amount. If they did have that in their mind, I think it was their duty to indicate it to the defendant. The plaintiffs having failed to do anything to indicate that they intended to charge more, and the defendants believing all of the time that these monthly payments satisfied in full the amount to be charged for the current, I think the plaintiff would be estopped at this time to claim an additional amount over and above the contract price.
“If I am right on either of the two propositions, either accord and satisfaction or the doctrine of estoppel, it renders a consideration of the other defenses unnecessary. In other words, it would not be necessary for the court to determine the effect of the defense of the statute of limitations, and neither would it be necessary for the court to determine how much power was generated by steam and how much was generated by water power, to which the defendants were entitled under the 1909 contract.
“I think I can say, in effect, that the court would find the value of the steam power that the plaintiffs furnish the defendant worth approximately two cents per kilowatt. The amount of steam power that was furnished, as distinguished from the water power, if I am right in either of those two propositions, it would be unnecessary for the court to determine.
“The defendant claims that the restraining order was invalid because there was no bond given. That defense would not be tenable for a moment, because the defendant itself procured the temporary injunction, and it could not turn around and say what they did was not lawfül because it did not do all that it should have done. There is nothing to that defense.
“I think the first question the plaintiff is met with is the defense of accord and satisfaction, and, second, the doctrine of estoppel. I think that disposes of the first question.”
The second count in the petition is based on a claim for equipment taken over by defendant in pursuance of the contract of 1909. Plaintiff had contracted to supply an auxiliary steam or gas plant and furnish electric-storage batteries to supplement the water-power plant, and plaintiff was given the right to take over a small electric plant owned by the defendant at a price of $8,000, which was done. This plant it appears was built into the larger auxiliary plant provided by plaintiff, which, with the storage batteries furnished, was of the value of $99,843 on July 1, 1919, when the contract was abrogated. That contract had provided that if the water power was not satisfactory for carrying out the purposes of both parties, the de fendant should have the right to purchase the auxiliary plant at its then value, to be fixed by agreement or by arbitration, but that pending a determination of the value the defendant had a right to take immediate possession of it. Possession of the plant was taken by the defendant on January 22,1922, and its value at that time, including the storage batteries, was $88,897. Payment has not been made for this equipment. The storage batteries it appears were installed, to equalize surges in the current caused by the street-railway system and were operated for the mutual benefit of both parties. A question was raised as to whether the batteries should be regarded as included in the plant. They were taken over by defendant with the other property and were treated as a part of the plant. In fixing the value of the auxiliary plant taken over, the court included the storage batteries. They were used to start the motor generators, were necessary to the operation of the defendant street railway, and aided in the operation of the plant during the peak hours of the electric-lighting load. We think they may fairly be considered a part of the plant within the meaning of the option contract.
The principal dispute that has arisen between the parties under the second count is as to the value of the plant. The amount of recovery is to be fixed by the value of the property at a certain time. What is that time? The plaintiff contends that it is the time the contract was abrogated, in July, 1919, while the defendant urges that it was the time the defendant took possession of the property, which was January, 1922, and the contention of defendant was sustained by the trial court. There was a substantial difference in the values of the plant at the different times mentioned, and to enable the parties to present and have determined the bare legal question, the court made findings of value a§ of each date. What time did the parties intend when they contracted for the payment of value? Their intention must of course be obtained from the language employed in the contract. As we have seen, the parties contracted that in the event the water power did not satisfactorily accomplish their purposes, the contract might be annulled and the right to purchase the auxiliary plant at its then value acquired. What is its “then” value? Webster defines the word “then” as “at that time, referring to a time specified.” The time fixed by the contract is the event previously specified therein, and to which the term “then” must have referred. When the contract was terminated the rights of the parties became fixed, both as to the right to purchase and the date on which value was to be measured in case of purchase. As values fluctuate with the lapse of time, it was important to the parties that a time for fixing values should be named. In stipulating that a certain event shall mark the termination of the contract, and the right of purchase, we conclude that it necessarily also fixes July 1, 1919, as the time for measuring the value of the plant taken over.
The judgment of the court as to the first cause of action is af•firmed, and on the second cause of action the judgment is modified to the extent that plaintiff shall be awarded judgment for the amount found to be the value of the property on July 1, 1919. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff sought to have property devised by Henry Lassen to A. H. Lassen subjected to the payment of a judgment in favor of the plaintiff and against W. H. Lassen, as administrator of the estate of A. H. Lassen, deceased. Judgment was rendered in favor of the defendants, and the plaintiff appeals.
The action turns on the construction of the will of Henry Lassen. The will contained nine principal paragraphs, the first of which was in the nature of a preamble, the second of which devised a residence to the wife of Henry Lassen, and the third of which reads as follows:
“All the rest, residue, and remainder of my estate, whether real, personal or mixed, wheresoever situate, of which I may die seized or possessed, I devise and bequeath in trust to C. V. Topping, C. M. Jackman, Howard L. Case, and my beloved wife, Mary E. Lassen, all of Wichita, Kan., upon the uses and trusts and for the purposes following, namely, to be held, managed, handled and ultimately distributed by my said trustees as hereinafter directed for the use, benefit and advantage of my said wife, Mary E. Lassen, and of our children, including the children of both of us and of either of us, to wit: James Taylor Mclnnes, Frances Mary Elsie Mclnnes, Teresa Gertrude Lassen, William Henry Lassen, and Aldrich H. Lassen.”
The fourth, fifth, and sixth paragraphs prescribe the manner in which the trust should be operated by the trustees. Part of the seventh paragraph reads as follows:
“I direct that this trust shall terminate on the first day of January 1926; and I further direct that, subject to the disbursements and advances herein elsewhere provided for, that one-lialf of the said trust estate and of the rents, issues and profits thereof shall at the termination of said trust be paid or distributed to my said wife and the other half in. equal parts to said children, share and share alike, the descendants of any such child or children as may die before such distribution, taking the share of the deceased parent, or if any such child die leaving no issue of its body, then such share shall be divided equally between the then survivors of said children.”
The remainder of the seventh paragraph does not assist in the determination of the present controversy. The eighth paragraph is as follows:
“I further direct and authorize my said trustees to pay or distribute out of the rents, profits and issues of the trust estate a sum not exceeding ten thousand dollars to any of the children above mentioned at the time such child marries or becomes twenty-five years of age. Any advancements made to any of the children mentioned herein by said trustees under any provision of the will authorizing same, shall be charged to any such child receiving the same in final settlement and distribution of the estate.”
The ninth paragraph appointed executors and trustees, which were subsequently changed by a codicil thereto. Mary E. Lassen, the wife of Henry Lassen, consented to the will and to the codicil. A. H. Lassen died September 4,1924, and W. H. Lassen was appointed administrator of his estate.
The plaintiff contends that A. H. Lassen under the will took a vested remainder in the property devised to him. The defendants contend that he took a contingent remainder therein.
The will discloses the intention of the testator, that the property should go to trustees to be managed and controlled by them until January 1, 1926, when it should be distributed by them, one-half to the wife of the testator, and the other one-half in equal parts to his children if they were then all alive, or to the descendants of any of the children named in the will that should have died before January 1,1926, or to the surviving children of Henry Lassen, if any of his children died leaving no issue of his body. All that any child of Henry Lassen obtained under the will before the termination of the trust was $10,000 that might be paid by the trustees when such child . married or became twenty-five years of age. Other than the $10,000, no child of Henry Lassen obtained anything under the will until after the termination of the trust. Those of the children of Henry Lassen who were then living, or the descendants of any who might be dead, then took the property that had been devised by the will except the $10,000 that might have been paid under the eighth subdivision of the will. Until the termination of the trust, it could not at any time be known who would take the property devised. All of the children of Henry Lassen might die before the termination of the trust. Under repeated declarations of this court, the will created a contingent remainder in A. H. Lassen. (Purl v. Purl, 108 Kan. 673, 197 Pac. 185; Kirkpatrick v. Kirkpatrick, 112 Kan. 314, 211 Pac. 146.) He died before the trust terminated, and his estate did not receive anything from the trust estate.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by a vendee, in a contract for sale of real estate, to procure title. The husband of the vendee joined with her as plaintiff. They were defeated, and appeal.
Lucy Williams purchased from George Frank, went into possession, and defaulted. The contract came into possession of Forrest B. Anderson. Frank deeded to Anderson, and Anderson took steps to obtain possession. The petition charged Anderson obtained possession of the contract by defrauding plaintiffs, and procured the deed by defrauding Frank. The court found that, for a valuable consideration, plaintiffs sold, assigned and transferred the contract to Anderson; that Frank consented to the assignment; that Anderson fully complied with the contract; and that Frank gave Anderson-a warranty deed whereby Anderson became vested with full legal title and became entitled to possession. The court further found that after Anderson procured title, plaintiffs leased from him, for a specified term, for a specified rent, which they paid. These findings discredited the testimony of the principal witnesses for plaintiffs, and negatived fraud, which was the sole ground on which recovery was sought. The findings are based on ample evidence, which the court chose to rely on, and are not contested here. The plaintiffs, however, present to this court two new grounds of recovery.
Plaintiffs went into possession under the contract received from Frank, and have continued to occupy the premises as a homestead. It is now claimed Charles Williams did not join with his wife in the alienation to Anderson. It was not necessary that Williams execute the assignment of the contract to Anderson, because he was not a party to it. His wife did execute a proper assignment indorsed on the instrument, and the instrument so assigned was delivered to Anderson, who paid a valuable consideration for it. Therefore, Anderson became assignee of the contract, unless the assignment were ineffectual for some reason. The reason relied on in the district court was stated in the petition. The word “homestead” does not appear in the petition, and Williams did not allege he did not consent to the assignment. He put his eggs in his wife’s basket, and alleged the assignment was procured by fraud. The court determined the issue of fraud against him, and that ends the matter.
Plaintiffs further' attempt to mend their hold in this court by contending Anderson was incompetent to take assignment from them, and to take the deed from Frank. Plaintiffs allege Anderson was their attorney, and included breach of professional duty in the charge of fraud. The testimony disclosed Anderson was employed by Frank as Frank’s attorney to see that plaintiffs paid up, or to get possession of the property. Anderson said he would see what he could do. A few days later he returned with the assignment of the contract to himself and a receipt for $200 which he had paid for it. He outlined a course of procedure which was satisfactory to Frank, which was carried out. The arrangement included a mortgage to' the Minnesota Avenue Bank to secure a loan of $700. At that time plaintiffs were out of the picture. After Anderson procured his deed from Frank, they reappeared as tenants of Anderson, and their present solicitude regarding the integrity of the transaction between Anderson and Frank is purely vicarious.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Mary S. Jewett, for herself and as guardian of Stella Chrisman, brought this action against the Coffeyville Vitrified Brick and Tile Company, to cancel an oil and gas lease and recover a penalty and damages. Upon a trial plaintiff prevailed and defendant appeals.
On January 25, 1917, G. A. Chrisman and wife, parents of the plaintiffs, since deceased, executed an oil and gas mining lease upon a tract of real estate which has since become the property of the plaintiff. The lease provided that the lessor would be entitled to one-eighth of the oil realized from the premises and also gas for domestic purposes, together with an annual rental of $1 per acre. The term of the lease was fixed at five years and as long thereafter as oil oí gas was produced in paying quantities. During the year 1917 the defendant drilled a well in which gas was found. A second well was drilled thereafter which was found to be dry. " Later, and in 1922, another well was drilled by defendant on the premises, which proved to be a producing gas well. These gas wells were connected up with pipe lines leading to the. defendant’s brick plant. Rentals and royalties were paid until February 15, 1924. Free gas for domestic use was also furnished for plaintiff’s home. When the gas wells were connected up with the pipe line a meter was placed on the line to measure the gas produced by the two .wells. Production was so reduced, however, that the meter was taken off sometime after the five-year period of the lease had expired, and before June 28, 1924, and when inquiry was made of the defendant as to the removal of the meter a letter was written by defendant stating that, “the one-eighth royalty was averaging, while we had a meter on it, about $1.50 per month. The wells being so very small, we took the meter off the lease and are holding your lease solely for the purpose of prospective value in the deeper gases which may be drilled later on. The purpose of this letter is to make it plain why we took out the meter, and further, the lease up to the present time has not been a profitable one for us, and we are holding it only for the deeper strata values.”
In the latter part of 1924 the plaintiff demanded a release of the record of the forfeited lease, but the demand was refused. It was alleged that plaintiffs had opportunities to lease! the land to others which was frustrated by the refusal of the defendant to release and rid the records of the defendants’ lease, and that by reason of the refusal they were prevented from leasing the land at a rental of $10 per acre and thereby sustained damages in the sum of $1,010.
The jury found that rent was paid to January 25,1922, and royalties were paid to February 25, 1924; that gas for domestic use to plaintiff’s home was furnished free; that in October, 1924, a check for $163.36 was tendered to plaintiffs in payment of royalties to January 25, 1925, and deposited in the Peoples State Bank to the credit of the plaintiffs, according to custom, but it was not accepted. There was also a finding that plaintiffs were offered a fixed sum as a consideration for a new lease in the year 1924. Judgment was . rendered in favor of plaintiffs sustaining the forfeiture and awarding them $1,010 as damages and $250 as attorney fees.
Defendants insist that there was no such failure of compliance with its terms as would justify the cancellation of the lease. So far as the damage is concerned, it is insisted that the testimony is insufficient to sustain the claim that plaintiffs could have obtained a lease from a Mr. Reynolds at $10 per acre.
Under the testimony the plaintiffs were entitled to a cancellation of the lease. It was given for a period of five years, and as long thereafter as oil or gas was produced in paying quantities. The term of the lease had expired and the wells which had been drilled had become unproductive. The statement in the letter of the defendant in respect to the removal of the meter is in fact an admission that the wells were not producing gas in paying quantities. It admitted that the product was only $1.50 per month and was not regarded by the defendant as worth the expense of measuring it. Defendant frankly stated that the wells had never been profitable up to that time, and it was only holding the lease for prospective value that there might be in the deeper strata. However, no other wells had been drilled and no search for gas made in the deeper strata. The only way the lease could be extended beyond the five-year period was a demonstration by the defendant that gas was being produced in paying quantities. When the term had expired and the wells had become unprofitable, the lease was at an end. Defendant was not entitled to hold it thereafter upon a possibility that they might find a deeper gas at some later time when they chose to drill for it.
There is complaint that there is insufficient testimony to uphold the finding of damages. The basis of that finding is that plaintiff had an opportunity to lease the land to one Reynolds for $10 an acre, but that he had declined to take the lease because of the recorded lease to defendant, which he refused to surrender. In that respect the testimony is meager, but under our rule for measuring testimony on an appeal it is deemed to be sufficient. It was the duty of the defendant to discharge the record of the forfeited lease upon demand. If plaintiffs were deprived of a sale of the lease by the refusal of defendant they are entitled to the damages sustained by such refusal. (Mollohan v. Patton, 110 Kan. 663, 202 Pac. 616, 205 Pac. 643.) ■ Reynolds, who was a witness, testified that he desired to obtain a lease on plaintiff’s land and had tried to purchase it and had paid $10 an acre for leases of adjoining land. He stated that he would not buy the lease until the record was cleared. When questioned about the price he would have paid he was somewhat indefinite in his replies. He said he did not know whether or not he would have given $10 an acre for it at the time he sought to lease it, that he would have given $5 an acre and probably would have given more, but stated- that he could not say positively whether he would have given $10 an acre for it. He admitted that he had leased similar land near it at that price, and he also admitted that in a conversation with a neighbor he may have said he was willing to give $10 an acre for it. On the whole of the testimony it cannot be said that the evidence was insufficient to uphold the finding that plaintiffs could have leased the land at the price mentioned. As to the damages in such a case it was held in Mollohan v. Patton, supra, that:
“The depreciation in value during the time the defendant wrongfully prevented a sale, appears to be a just measure of damages in accordance with the usual rules notwithstanding the pendency of the litigation.” (p. 667.)
In that case testimony equally meager was deemed to be sufficient to sustain the judgment.
There is a suggestion in the brief of defendant that at one time defendant attempted to go upon the premises and drill additional wells, but was prevented from doing so by reason of an order of injunction obtained by plaintiffs. In a search of the record we are unable to find anything of that land in it.
Some complaint is also made of the instructions of the court, but they appear to be in accord with the view we have taken of the case.
No error being found the judgment must be affirmed. | [
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The opinion of the court was delivered by
, Dawson, J.:
This was an action on a fraternal insurance policy. Plaintiff’s wife, Juanita Rogers, twenty-one years old, and mother of two children, made application on May 27, 1923, for membership and insurance in the defendant institution. She was asked the usual precautionary questions. Some of these and her answers thereto read:
“20. Are you of sound body, mind and health, . . . ? A. Yes. . . .
“12. Have you in the past five years been treated by or consulted any physician in regard to personal ailment? No. ...
“15. ... If applicant is a woman . . . how many miscarriages? None. Are you pregnant? No.”
These questions and answers were incorporated in her written application, and that instrument also contained the following recitals :
“I hereby waive all benefits paid under the laws of the order, in event of my death or disability resulting directly or indirectly from my being pregnant at this time. I hereby also waive all benefits under the said laws on account of any disability or death occurring to me as a result of abortion or attempted abortion. . . .
“I further agree for myself and my beneficiary, or beneficiaries, that no right to or claim'for benefits of any nature shall accrue by virtue of this application or benefit certificate issued thereon until the same has been approved by the supreme physician, and I have been initiated and had delivered to me personally, by the local lodge secretary, a benefit certificate, accepted by me in writing while in sound health, free from disease.” [Italics ours.]
The defendant’s constitution and by-laws which governed the insurance contract contained these provisions:
“Section 48. . . . No liability upon the part of this association for the payment of any death or disability benefits shall arise or be incurred until . . .
“Second. Has been initiated. . . .
“Fourth. Had delivered to him, while in good health, his benefit certificate. . . .
“Section 55. ... If the statements, declarations or warranties in his application for membership . . . shall be found in any respect untrue, his certificate shall become and be null and void and of no effect.”
On the evening of July 14, 1923, Mrs. Rogers and her husband called on defendant’s local secretary and paid the first monthly assessment of dues exacted by defendant from its insured members; and although she had not yet been initiated as a member of the society, the insurance certificate was delivered to her upon her written acceptance which reads thus:
“I hereby accept certificate No. 259,360, delivered to me'this 14th day of July, 1923, subject to all the conditions and provisions thereof. ... I further declare and warrant that I am in sound bodily health and of temperate habits. [Italics ours.] Mrs. Juanita Rogers.”
The next day Mrs. Rogers died on an operating table in her own home while undergoing a surgical operation called a “curettement” for the correction or cure of uterine hemorrhage.
Payment of the policy being refused, this action by the husband as designated beneficiary was begun.
Defendant’s answer set up various defenses which provoked a sharp contest in the trial court. There was testimony which tended to show that Mrs. Rogers was enciente when she signed her application on May 27, and that she had sounded a physician about getting relief therefrom. This doctor testified:
“I remember Juanita Rogers'. . . <, I had occasion to administer to her in 1923; must have been two or three months before her death. . . . She complained to me of a cold and nauseated. There was no examination made otherwise than a few simple questions. . . . The questions that were asked elicited the fact that there was a possible pregnancy, and that this nausea and vomiting was possibly due to the condition of pregnancy. I gave her something for her cold and made an effort to check the nausea. Nausea could have been due to pregnancy or to other causes. In my judgment it was caused by pregnancy. She stated if she was pregnant she wished she would not have it. I just laughed at her and said, Well, do not come to me for it.”
One matter of controlling importance was the deceased’s condition of health at the time she made her application for insurance, and especially at the time she gave her receipt for the insurance certificate the night before her death. Her husband, this plaintiff, testified:
“Prior to July 14 or 15, 1923, my wife was apparently in perfect health as far as I know.. We would go out and play ball and run around and cut up all the time. There was no apparent change in her health immediately before her death or any time during the two years. . . . [July 14 we] went over to Mr. Shepard’s house and got our policies. It is my wife’s signature to exhibit 1, signed by her on the day before her death at about eight o’clock in the evening. We took the policies back over to the house and then ran for the street car to go to town and seen the last show at the Miller and had to run to catch the Harry Street street car. Ran nearly a block, I ran, but she outran me. I used to run 100 yards in 10% seconds, but could not catch my wife to the street car. She- seemed to have better wind than I had, because I was puffing and she was not. . . . She seemed to be active. She would get out and play ball in the front yard, cutting up all the time like kids; get in a little wagon like kids and coast up and down the street with them.” -
However, plaintiff also testified to this effect:
“Her menstrual periods were regular until about thirty days before she died, and then she began to flow. She would flow for a day and then quit, and flow of a night and quit. I kept telling her she ought to see a doctor. . . . On July 11th I came down here. I told her to call the doctor. She called Doctor Smith, and she gave her some medicine and she went to Cookson’s and got it; she took this medicine three times. I heard Doctor Smith say, ‘If this medicine doesn’t do you any good I will have to curette you.’ It was on the day she prescribed the medicine. The medicine was for menstruation. It did not inconvenience her, but I was worried about it, and knew it was not right why she was flowing that way. I insisted on calling a doctor. I noticed the medicine made her worse. . . .
‘‘Cross-examination:
“ I noticed she began flowing about thirty days before her death. It started about the regular time to start, but never stopped. About -the first o} June I did not think it was natural; she said, ‘I am not worrying about it, because I am feeling all right.’ Talked to Doctor Smith about July 11; she said if it did not stop there would have to be a curettement. She came down to our house at that time. The prescription was made out and she got it filled at Cookson’s; she went up herself and got it, and on July 11 the medicine seemed to make her worse; she was flowing harder, and that flowing continued in intensity up to the time of her death.”
Plaintiff’s stepmother testified in his behalf:
“I am a practical nurse. ... I went over to her house on Sunday morning. She called me on the phone, said she wanted me there through a curettement. . . . When I arrived she said she was going to have a curettement; said there was something wrong, and the doctor said she had to have it. . . . She did not tell me she had been flowing. I knew it was a' curettement, and as a practical nurse I knew what a curettement was for. Knew it was to stop flowing and remove any foreign tissue that might be in the uterus. She did not tell me what caused the flowing or the dead tissue in the uterus, and I did not ask her. ... I did not see how much dead tissue was removed; I have no idea; I wouldn’t say, I couldn’t say. It just came out, washed out, just a mass of stuff.”
Doctor Gouldner, a witness for plaintiff, testified:
“Many women flow during the menstruation periods irregularly and for some periods of time without being in bad bodily health. A prolonged flow which has been going on for over four weeks is self-evidence as to some disturbance of the normal health.”
Doctor Smith testified:
“She called me over the telephone in the morning of Saturday the 14th, the day before the operation. . . . Then she called me again . . . and asked me to make arrangements with some physician to do the surgical work, . . . also talked to Doctor Bernstorf. ... I told her I had made arrangements with Ddctor Bernstorf to do this for her. . . . Her aunt was there, Mrs. Lee, and assisted us in getting her ready for her operation. Mrs. Lee was a domestic nurse and was there as a nurse.”
The jury returned a verdict for plaintiff and answered certain special questions submitted by the court:
“1. On what date do you find the insurance policy involved in this case was delivered? A. July 14, 1923.
“2. What date do you find the application was signed by Juanita Rogers? A. May 27, 1923.
“3. Did Juanita Rogers consult Dr. H. P. Daniels in the early spring of 1923? A. Yes.
“4. Did Juanita Rogers about three months prior to her death consult Dr. H. P. Daniels as a physician concerning her ailments, if any? A. Yes. ...
“7. Was Juanita Rogers pregnant on May 27, 1923? A. No.
“8. Did the death of Juanita Rogers result directly or indirectly from' her pregnancy? A. No.
“9. What do you find the death of Juanita Rogers resulted from? A. Chloroform not properly administered as an anesthetic. . . .
“17. Was said Juanita Rogers of sound mind, body and health . . . on May 27, 1923? A. Yes.
“18. Had said Juanita Rogers consulted any physician regarding her personal ailment within five years immediately preceding May 27, 1923? A. Yes.
“19. If you answer the foregoing question in the affirmative, then state what physician and when she so consulted the physician and for what purpose? A. Doctor Daniels about April, 1923, for a cold. Doctor Smith about January and April, for a cold.”
Other significant findings read:
“20. Was said Juanita Rogers of sound bodily health on July 14, 1923? A. Yes. . . .
“22. Did Juanita Rogers have any physical ailment on July 15, 1923, immediately prior to her death? A. Yes.
“23. If you answer the foregoing No. 22 in the affirmative, then state of what said ailment or ailments consisted. A. Probably uterine hemorrhage. ... •
“28. Did Juanita Rogers call Dr. Orril Smith on July 14, 1923, and make arrangements for the performing of an operation on July 15, 1923? A. Yes.
“29. If you answer the foregoing question in the affirmative, then state what operation was to be performed on July 15, 1923. A. Curettement.”
Judgment was entered in plaintiff’s behalf.
Defendant assigns various errors, but we shall go directly to the simplest and most obvious of these, since its determination may conclusively settle this lawsuit.
On the night before her death, at the time the beneficiary certificate was delivered to her, and as a condition of that delivery, Juanita Rogers represented and warranted that she was then in sound bodily health. The jury found that such was her condition (No. 20), but that finding was a mere conclusion and manifestly an erroneous one, since findings 22 and 23 are squarely and specifically to the contrary. The two latter findings deal with the specific facts, and are in accord with the testimony adduced in favor of plaintiff, and that she had engaged physicians to perform that operation that Mrs. Rogers was in apparent good health, an athlete, a tomboy, an efficient cook and housekeeper up to the minute she doffed her clothes and donned her gown and kimono and climbed on the operating table, where she died 25 minutes later on that Sunday afternoon, yet the facts of her physical ailment which had afflicted her for some weeks and which necessitated the surgical operation which had been arranged to take place the following day, were developed by the evidence of plaintiff’s own witnesses. Plaintiff and the witnesses in his behalf testified that deceased had been flowing for some thirty days to six weeks prior to her death, that plaintiff was worried about her condition and said she must see a doctor. Plaintiff testified that two or three days before her death the medicine she was taking had made her worse. Moreover, at the very hour Mrs. Rogers set her signature to the acceptance agreement reciting, “I further declare and warrant that I am in sound bodily health,” she knew she had been flowing for 30 or 40 days, that she had been taking medicine to relieve that ailment, that the medicine had made her worse, and that her doctor had told her she would probably have to undergo a surgical operation to rectify some derangement or abnormality in her womb, and she knew that her bodily health was then and there so unsound that she was to undergo a surgical operation next day and that she had already engaged two physicians to perform that operation. All these facts, with no evidence to the contrary (and disregarding altogether defendant’s evidence to the same effect), compelled the jury to find that Mrs. Rogers did have a physical ailment (finding No. 22), probably a uterine hemorrhage (finding 23) of sufficient gravity to require her to undergo a surgical curettement, and that she had engaged physicians to perform that operation (finding 28) — she knew all this before she warranted that she was in sound bodily health. The surgical operation did disclose the presence of a mass of dead tissue in the uterus. A woman so afflicted must be held as a matter of law to have been of unsound bodily health, and neither the equivocation of witnesses nor the Sophistical conclusions of juries can alter that self-evident proposition. Special findings 22, 23 and 28, with the undisputed evidence which supported those findings, make it perfectly clear that the warranty of sound bodily health, given by the deceased on the night prior to her death, was breached as soon as made. By the terms of the certificate of insurance and by .the provisions of defendant’s constitution and by-laws, there was to be no liability unless the certificate was delivered and accepted by the member “while in good health.” The by-laws provided that the certificate should be void in the event of a false warranty. Such a by-law was binding on the assured and her beneficiary. (Miller v. Knights and Ladies of Security, 103 Kan. 575, 175 Pac. 397; Pickens v. Security Benefit Association, 117 Kan. 475, 231 Pac. 1016; 40 A. L. R. 654 and note. See, also, Hoover v. Royal Neighbors, 65 Kan. 616, 70 Pac. 595; In surance Co. v. Brubaker, 78 Kan. 146, 96 Pac. 595; Glasgow v. Woodmen of the World, 107 Kan. 354, 358, 191 Pac. 470; Hiatt v. Woodmen of the World, 107 Kan. 359, 191 Pac. 492; Steele v. Woodmen of the World, 115 Kan. 159, 222 Pac. 76.)
In view of the conclusion just reached, the other errors assigned and argued by appellant — although some of them are rather striking —need not be considered.
The judgment is reversed and the cause remanded with instructions to enter judgment for the defendant. | [
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The opinion of the court was delivered by
Mason, J.:
Ernest M. Hodges, a widower, 84 years of age, died intestate March 6, 1925. His heirs were four daughters, Vanie M. Post, Ethel D. Dalton, Aimee M. Pratt and Belle T. French, and three sons, Norman W., Lembum and Elmer E. On February 26, 1924, he executed a deed to each of the three sons. This action was brought against them by the four daughters asking the setting aside of these deeds on the grounds of undue influence and want of capacity. A trial resulted in findings of undue influence by an advisory jury, which were adopted by the judge, with numerous detailed findings of his own, and a judgment in favor of the plaintiffs, from which the defendants appeal.
On February 19, 1925, the father executed a deed to each of his daughters. Their petition also asked that these be set aside on the same grounds. At a first trial of the case the court held that these ■deeds were valid and were made while the grantor was of sound and disposing mind, but that the deeds to the sons were procured by means of undue influence and should for that reason be set aside.' On motion of the defendants a new trial was granted, but only upon the issue of the validity of the deeds to the sons. On the second trial evidence was introduced on both sides concerning the father’s capacity, a number of witnesses saying they thought him of unsound mind, but a question which was submitted to the jury on that subject was allowed to remain unanswered, and the findings made by' the judge were silent on the subject, save for a recital that he was “in a very weakened and feeble condition, in fact on the verge of death” when he executed the deeds to his sons. The judgment, however, included an adjudication of capacity. The allegations df want of capacity must therefore be regarded as disproved, and the evidence on the subject is important only as it may affect the question of undue influence.
1. The principal contention of the defendants is that there was no evidence whatever to support the finding of undue influence. The findings of the court recited in considerable detail the facts on which that finding was based. The vital question may therefore be determined from a consideration of these detailed findings, subject ' to a further claim that some of them are wholly without support in the evidence. The following are the findings of the court in full, with such comment on each as is made necessary by the defendants' contention that it is not supported by any evidence:
“1. Ernest M. Hodges was a man of about eighty-four years of age and the plaintiffs, four daughters, and the defendants, three sons, were all his children.
“2. That Ernest M. Hodges was a widower and lived alone, and as years came upon him he at times was not well, and it was customary for him to go-to his daughter, Ethel Dalton, when so incapacitated.
“3. That at about the first of November, 1924, the said Ernest M. Hodges became ill, and as was his custom went to his daughter, Ethel Dalton, in St. George, Kansas. That on Thanksgiving day that month he became seriously ill, from which sickness he never recovered, but died on March 6, 1925.
“4. That while the said Ernest M. Hodges was at the home of his daughter, Ethel Dalton, he had every convenience and comfort and a trained nurse to-wait upon him, but that upon the 23d day of January, 1925, the said Ernest M. Hodges was taken from his said home, against the advice of his physician by the said sons, or defendants, and taken to the home of the defendant, Elmer Hodges, about four miles in the country, where he was kept without modern conveniences and without a nurse until his death; that shortly prior to such removal the defendant, Elmer Hodges, was whispering to his said' father, and after the departure of the said son, the said elder Hodges was more nervous and dissatisfied; that prior to the removal of the said Ernest M. Hodges, the defendants called in a strange physician and prepared for the removal of their said father, without consulting with or notifying the plaintiff, Ethel Dalton, other than that some one of the defendants suggested upon one occasion that he thought their father would be better off in a hospital, to which the said Ethel Dalton assented; that a short time prior to such removal the said Ernest M. Hodges stated that he desired to go to his son Elmer’s house to make division of his property.”
The defendants challenge these findings: That Ernest M. Hodges had a trained nurse; that he was moved to Elmer’s house against the advice of his physician; that a strange physician was called in; and that shortly prior to the removal he said he desired to go to Elmer’s house to divide his property. The sick man’s attendant was rather a “practical” than a “trained” nurse as these words are commonly used, but the departure from usage in the description adopted is not very important. The physician originally in charge said he thought the patient should be kept quiet — if there was a chance he could have it that way. “If there was a chance that was the only chance I knew he had.” The finding that the doctor advised against removal was doubtless based on this testimony, although he said he told them he didn’t know whether it would harm him or be beneficial, and (on cross-examination) gave an affirmative answer to the question, “You told them he might be taken out without doing him any particular harm, but that he should be kept quiet.” The sons employed another physician, who was new and strange in the sense that a change was made. The defendants say he was well known. The only basis we discover for the finding that the father said he desired to go to Elmer’s house to divide his property is testimony that five or six times he had a whispered conversation with Elmer and “he would be excited and’nervous . . . and was always talking about dividing his property,” and that his daughter Ethel said to Lem (Lemburn) and his wife, “Every time you boys are down here he is dividing the property.”
“5. That just prior to the removal of the said Ernest M. Hodges he stated that the boys, meaning the defendants, wanted him to divide his property and give the girls $1,500, as their share; that the property of the said Ernest M. Hodges was of about the aggregate value of $20,000.”
The part of this finding preceding the semicolon is vigorously attacked as without support in the evidence. It is clearly based on the testimony of M. M. Dodson, an old friend of Ernest M. Hodges, who was acting as his nurse. But the abstracts differ in stating his testimony in this respect. The plaintiffs give this renditon of it:
[The father] “said he thought he would give girls $1,500 apiece and divide land between boys; Dodson asked him if he thought that would be a fair settlement and he said he didn’t know whether it was or not; Ernest M. Hodges said to him they are trying to get me to give the girls $1,500 apiece and he did not know whether it would be fair or not.”
The defendants print it this way:
“Said he thought he should give the girls $1,500 apiece and divide the land with the boys. I asked him if he called that a fair settlement. He studied a little and said, he did not know whether it was or not. He said they were trying to get him to give the girls $1,500 apiece and he did not know whether it would be fair or not.
“Q. Did he say they were trying to get him to give the girls $1,500 apiece and he did not know whether that was fair or not? A. No.”
The full transcript as to the episode reads:
“Said he thought he should give the girls $1,500 apiece and divide the land with the boys. I asked him if he called that a fair settlement. He studied and little and said he did not know whether it was or not. He said they were trying to get him to give the girls $1,500 apiece and he did not know whether it would be fair or not.
“Q. Did he say they were trying to get him to give the girls $1,500 apiece and he did not know whether that was fair or not? A. No. He could not remember what he had for breakfast, and could not remember the day of the week. If some acquaintance came in he would brighten up for a few minutes but would soon get dozy.”
It seems probable that something is omitted that might explain the seeming irrelevance of the last two sentences, but assuming, as we must, that the transcript is literally accurate, and that the witness contradicted himself, it was for the trial court to determine which version was to be accepted. (Acker v. Norman, 72 Kan. 586, 84 Pac. 531.) It is doubtless not a matter to be considered here, but a transcript of the evidence at the first trial, which is among the papers, shows testimony of the witness in accordance with his first statement as above quoted. It will be observed that the court finds it was the sons who wanted the father to give the girls $1,500 as their share, while the testimony of the .witness was that the father said “they” were trying to get him to make such a division. We think, however, it is fairly to be inferred that if he used the language attributed to him he was referring to his sons.
"6. That the defendant, Norman Hodges, resides at Palco, Kansas; that on the 20th day of January, 1925, three days before Ernest M. Hodges was moved, Elmer Hodges telephoned the defendant, Norman Hodges, to come, and that from the 23d day of January, 1925,’ the three defendants were constantly with the said Ernest M. Hodges until his death.”
The defendants criticize this finding as “a little strong, as Leniburn Hodges was not there only a part of the time.”
“7. That on the 22d day of January, 1925, the defendant, Norman Hodges, went to the St. George Bank, secured a statement in writing from said bank showing what money and bonds his father had in the bank; that said account was changed to a checking account and removed from said St. George bank by one of the defendants and the money taken to another bank; ,that Norman W. Hodges receipted the St. George Bank for the liberty bonds and took the bonds with him from the bank; these bonds were assigned to Elmer Hodges the next day, to wit: February 19, 1925.
“That on the 19th day of February, 1925, an attorney was called in and certain deeds were made to the girls to real estate ranging in value from $1,-200 to $1,500 to tracts so deeded and checks were made to each of the defendants for the sum of $3,000; that upon a prior hearing of this case the court sustained the deeds and checks so made and the said Ernest M. Hodges declared at that time that he was going to retain the rest of his property.”
This finding is said by the defendants to be immaterial. They say also: “The boys did not take a dollar out of the bank which was not given to them by their father prior to the time the money was removed.”
There appears to be no finding number 8.
“9. That on the 26th day of February, 1925, the defendants procured the same attorney to come to the home of Elmer Hodges, brought the notary public and made provisions for witnesses, when the deeds in question were made, the said Ernest M. Hodges at the time being in a very weakened and feeble condition, in fact on the verge of death, as he never rallied and died the evening of March 6, 1925; that at the time of the making of the deeds in question the plaintiffs were not notified and knew 'nothing of the transaction, though with one exception, living within á few miles of the Elmer Hodges home, except upon one occasion the defendant, Lemburn Hodges, stated to Percy Post that Ernest M. Hodges was going to make deeds and they could not be broken, and for the girls to just start something.”
The.defendants say “finding No. 9 is a little strong, too.” They deny the evidence showed either that on February 26, 1925, their father was on the verge of death and never rallied, or that Lemburn said to Percy Post he was going to make deeds that could not be broken, and for the girls to start something. The accuracy of the statement concerning the sick man’s condition is perhaps a matter of opinion. Percy Post’s testimony was: “Lem said, Dad is not going to make a will. I said, Why? He said a will can be broken. He said, Do you know he can deed to whoever he wants to? I said I guess he can, it is his. I said, If a will won’t stand, ‘will a deed? and he gave no answer.” His wife testified: “He [Lem] said let them start something if they want to, and the other brother said, yes, let them start something.”
“10. That the deeds in question were all recorded the next dajj at one and the same time, and the recording fee therefor paid by the defendant, Elmer Hodges; that there was no consideration for said deeds.
“11. That the deeds in question were drawn by an attorney from Manhattan, acknowledged by a notary public from Wamego, and witnessed by a man from St. George and the nearest neighbor of the defendant, Elmer Hodges.
“12. That the defendants were arranging for their father’s funeral before he was taken from the Dalton home and moved to the Elmer Hodges home; that on February 12 the defendants had J. M. Best of Manhattan come to the Elmer Hodges home, where Ernest M. Hodges was sick and make arrangements for Ernest M. Hodges’ funeral; that these arrangements made with J. M. Best were made without consulting any of the plaintiffs, and made two weeks before the deeds in question were executed.”
The defendants say this finding is on matters not involved in this litigation, adding: “The defendants made no arrangements whatever with reference to their father’s funeral until after be was dead, other than to find out, at the request of their father, whether a Klan funeral could be had at the home of Ethel Dalton.” A witness for the defendants testified that the defendants came to him at Manhattan in January and told him their father desired a Klan funeral — that he was a very sick man and could not live a great while.
“13. That the testimony of the defendants that they knew nothing of the deeds in question until delivered to them is not true, every circumstance in the case pointing to the contrary, and the court so finds.”
The defendants say: “No one testified that the boys ever talked to their father with reference to the deeds. They swore positively that they did not know to whom and how the deeds were to be made.”
Norman testified: “I did not know my father was going to make the deeds as he did on February 26, 1925.” Lem testified: “I did not know the deeds were going to be executed until they were signed.” Elmer testified: “I did not know prior to February 26, 1925, that my father was going to make a deed to me.” Mrs. Po.st testified that two weeks or two and a half weeks before their father’s death Lem told her papers were going to be made out. To the question in cross-examination: “Do you know when it was they told you papers were going to be made out?” she answered, “I don’t know the exact date.” Testimony has already been quoted in which an intention was indicated of having deeds made instead of a will.
“14. That the deeds in question were procured by defendants by undue influence.”
This of course involves the general question whether there was evidence sufficient to support the judgment.
Proof of just what was said by the sons to the father is lacking. We think, however, the findings made by the court, after disregarding any parts that may not be sustained by the evidence, fairly tend to show that the sons advised their father to limit the share of the property given the girls to $1,500, and also that the division made was influenced by that advice. If these facts are established we think an inference that the influence so exerted was “undue” may reasonably be drawn from the attendant circumstances — the arrangements made by the brothers which resulted in giving them convenient access to their father in the absence of their sisters; their covert talk with him; their apparent cooperation with each other in the matter; their father’s enfeebled condition, and their arrangements in advance for his funeral; their omission to let the sisters know what was going on; and their false statements that they did not know in advance that the deeds were going to be made.
2. The defendants also complain of the refusal of the court to make additional findings setting out the character of the acts by which the several defendants induced the execution of the deeds. From what has already been said it is manifest this could not be done.
“In the nature of things it would be a rare case where the details of conversation or conduct could be shown indicating undue persuasion and influence. Such arts would be exercised only in the absence of witnesses, or, at most, in the presence of those whose interest and inclination would impel to their denial.” (Howard v. Carter, 71 Kan. 85, 92, 80 Pac. 61.)
The court was asked to make two additional findings — not to find either one way or the other upon a suggested question, as the court should determine, but to find in favor of the defendant’s contention. The refusal to do this is not available as error on review. If the evidence left the matter in doubt it was for the court to decide upon the proper finding. If as a matter of law only one conclusion was possible to be drawn there wds no occasion for a finding. (Johnson v. Schrader, 114 Kan. 341, 219 Pac. 269.)
“To be of any avail, a request for a finding must be made by one of the parties, and should not be in the form of a finding, but should point the propositions on which a finding is desired.” (38 Cyc. 1957.)
3. Complaint is made of the refusal to admit in evidence the entry upon the journal concerning the proceedings relating to the first trial. There could be no occasion for the introduction of the record in evidence, for the court would take judicial notice of it. The jury of course served in a purely advisory capacity.
The judgment is affirmed.
Burch, J., dissenting. | [
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The opinion of the court was delivered by
Mason, J.:
A school district employed an architect to draw plans for a new schoolhouse, and to supervise its construction. The plans were drawn and a contract for its construction was entered into between the district and a film of contractors. The building was erected, accepted and paid for, the last payment being made in November, 1921. This action was brought by the district against the contractors and the architect, the petition alleging that they had entered into a conspiracy, which was not discovered until June 1, 1923,-to defraud the district, in pursuance of which a new set of blue prints was made, involving the- skimping of material in quantity and quality, and by this device an inferior building was constructed at a saving of cost to the contractors. A jury trial resulted in a verdict and judgment for the defendants, from which the plaintiff appeals, contending that the uncontroverted facts entitled it to a judgment, and that the instructions to the jury were materially erroneous.
1. The working drawings, which were made after the contract had been signed, called for the use of reenforced concrete instead of certain structural steel provided for in the original plans. The plaintiff’s theory is that this was in pursuance of a conspiracy to defraud entered into by the architect and contractors. The defendants’ explanation, which there was evidence to support, may be thus summarized:
There is a general custom for concerns interested, with the permission of the architect of a proposed building, to submit an alternate design with respect to some detail, stating the price, for the use of any bidder who may see fit to include in his bid an alternate proposition based upon such change, the proposer later making working drawings in case a bid is accepted which includes his alternative. The Concrete Engineering Company, of Kansas City, made an estimate on a part of the construction, on the basis of the elimination of a part of the structural steel work already noted, which it furnished to the bidders on the schoolhouse, including the defendant contractors. The proposal as submitted to contractors for bids included eleven alternates. One of them, numbered 7, was for a system of reenforced concrete floor construction instead of steel form construction specified in the plans. This was submitted by the Concrete Products Company, a different concern from the Concrete Engineering Company. The defendant contractors made the lowest bid. They did not bid on the seventh alternative. After the bids were opened on July 14,1920, the architect and the school board discussed them for several hours in executive session. The proposal for the alternate design of the Concrete Engineering Company was specifically discussed at- this meeting. . The defendant contractors were called in on the suggestion of the architect, who asked them particularly, and in the presence of all three members of the board, why they had not filled out the blank opposite alternative number 7. They answered that the reason was that their bid was based on the alternative design of the Concrete Engineering Company. The next day the bid of the defendant contractors was accepted (this being at the option of the district, for the call for bids reserved the right to reject all) and the contract was executed. Later the working plans corresponding to the estimate of the Concrete Engineering Company were prepared by that company, approved by the architect, and turned over to the contractors. On the morning of July 14 the contractors asked the architect if the Concrete Engineering Company’s design would be acceptable and he told them it would.
The jury, in response to special questions, made findings to this effect: The design of the Concrete Engineering Company, used in constructing the building, was approved by the architect. Neither defendant attempted to conceal from the members of the school board the fact that this design was used. The Concrete Engineering Company’s plans were around the building during its construction, where they could have been examined by the members of the school board if they desired. The architect acted in good faith in approving these plans, so far as the jury knew. The contractors acted in good faith in bidding and in constructing the building, and did not intend to defraud the plaintiff in any manner in connection with its construction. The architect and the contractors did not conspire together to defraud the plaintiff. To the question whether the architect intended to defraud the plaintiff in any manner in connection with the construction, the jury answered: “We do not know his intentions.”
Obviously the issue whether the defendants were guilty of the charge upon which the action was based — conspiracy to defraud— was one to be submitted to the jury, upon which the verdict, approved by the trial judge, is final unless shown to be affected by some error committed at the trial. In behalf of the plaintiff, however, it is argued that upon the conceded facts the defendants were guilty of legal fraud and breach of contract resulting in recoverable damages. Assuming that evidence given of defects in the building was conclusive, and that as a legal proposition, by virtue of the parol evidence rule, the obligation of the contractors was the same as though no change of design had been made or attempted, the question whether the defendants could be held liable in the present action is substantially the same as that raised by the objection to the instructions, which will now be considered.
2. After the jurors had deliberated a part of two days they asked for further instructions. In response to this application the court gave an additional instruction which, after defining a “contract” and “fraud,” proceeded:
“A ‘tort’ is a legal wrong committed upon a person or property, independent of contract. In modern practice, tort is constantly used as an English word to denote a wrong, or wrongful act, for which an action will lie, as distinguished from a contract.
“In connection with the above definitions, which are given to help make plainer this, and other, instructions heretofore given you, you are instructed that you cannot allow damages to plaintiff in this case simply because you may believe from the evidence, if you do so believe, that the defendants, or any of them, failed to perform their contracts with the plaintiff, and that by reason of such breach of contract the plaintiff suffered some damage. In this connection you are further instructed that, although you may believe from the evidence that plaintiff sustained some damage, yet, unless you shall further find and believe from a preponderance of the evidence that such damage was the direct and proximate result or consequence of the fraud of defendants, or some of them, intentionally practiced upon the plaintiff, and was not merely from breach of contract, then your verdict should be for the defendant, or such of the defendants as you find from the evidence were not guilty of such fraudulent conduct.”
While some verbal criticism is made of this instruction, it affords no ground of reversal unless the court erred in holding that no recovery could be had for mere breach of contract, as the jury had been told in the original charge by fair implication. The present case is not one where under the doctrine of the election of remedies the plaintiff is bound to choose between tort and contract, and the selection of one prevents a reliance at any time or in any way on the other, as for illustration, where one whose property has been wrongfully taken waives the tort and sues for its value as upon an implied contract, thereby committing himself to the theory that the title has passed. Here there is no necessary inconsistency between the existence of both fraud and breach of contract. There may possibly have been a failure to carry out the contract and a conspiracy to cover up the fact by fraud. But the plaintiff, having specifically pleaded fraud and tried the case on that basis, could not effectively complain of the refusal of the court to allow a recovery to be had for breach of contract. Especially is this so in view of the fact that a cause of action against the contractors for failure to perform their contract to erect the building could not have been rightly joined with one against the architect for the breach of his contract to supervise the erection; nor could an action upon the contract of either have been joined with an action for the fraud of the other. The plaintiff elected to proceed against the architect and the contractors for a fraud for the perpetration of which they were alleged to have conspired. It could not, by virtue of that proper joinder, get them into court upon a pleading adapted thereto, and then in the same action obtain relief against them on a basis which if pleaded would have made its petition demurrable for misjoinder.
The judgment is affirmed.
Johnston, C. J., not sitting. | [
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|
The opinion of the court was delivered by
Mason, J.:
This is an appeal from a judgment against a plaintiff who sought to have a demand against the receiver of an insolvent bank, at Cunningham, declared a preferred claim, as constituting a trust fund.
The plaintiff, the Massey-Harris Harvester Company, of Kansas City, in July, 1925, sent a note to the bank for collection. About August 15 the bank collected $3,184 on the note and reported the fact, asking what to do with the proceeds. The plaintiff answered by wire directing a draft to be sent. This was not done, but on August 21 a representative of the plaintiff called at the bank and asked a settlement. The banker asked him how he wanted the remittance, and he answered that he would take a cashier’s check. A cashier’s check for $3,180 was given him, $4 being held as a collection charge. The bank at that time had more than that amount of cash on hand. The plaintiff's representative at once sent the cashier’s check to the plaintiff at Kansas City. It was there deposited for collection and in the usual course of business reached the Cunningham bank on August 29. On that day the bank sent to the forwarder of the check a draft drawn by it on the Federal Trust Company, of Kansas City, for $8,262.28, which included the amount of the cashier’s check. This draft was presented to the drawee on August 31, payment being refused. It has never been paid. On September 8 the plaintiff was notified that the check had been charged back to its account. The last day on which the Cunningham bank was open for business was September 5. The sixth was Sunday and the seventh was Labor Day. The bank commissioner took charge on the eighth. The cash on hand then amounted to $400.
We think the plaintiff was entitled to no preference over general creditors of the bank. After the bank had made the collection of the note we may assume the relation between the plaintiff and it was that of principal and agent and not creditor and debtor; and that if the bank had been closed while that condition existed the plaintiff would have been entitled to reclaim the money as its own. But when the plaintiff by its representative, having the opportunity to receive in cash the proceeds of the note, chose instead to accept a cashier's check — doubtless for convenience in transmission — it voluntarily placed itself in the attitude of an ordinary depositor. The situation is substantially the same as though the money had been paid over the counter and the plaintiff had then used it to purchase the cashier’s check.'
Where the holder of a check presented it to the bank on which it was drawn and upon his request was given for it a draft on another bank, which was refused payment because the bank drawing it failed before its presentation, a preference was claimed as in this case. The court said:
“The transaction was the ordinary one of the purchase of a draft for convenience in the remitting of money, and the giving to it of a different name cannot alter its essential character. In a stipulation regarding the .facts upon ■which, together with the plaintiff’s evidence, the case was submitted, it was stated that the plaintiff was at no time a creditor of the failed bank, but this statement cannot overcome the effect of the specific facts admitted and shown, if inconsistent with them. It must be interpreted as meaning either that the plaintiff was not a creditor of the bank, except so far as that relation was created by the facts already recited in detail, or as a mere conclusion of law, to be disregarded by the court if found to be incorrect.” (Clark v. Bank, 72 Kan. 1, 2, 82 Pac. 582.)
In another case it was said:
“In this ease the Chetopa State Bank was the holder of checks drawn by various individuals upon the Farmers & Merchants State Bank. It presented these checks at the time of clearing for payment. It was in the same situation as though it had taken the checks direct to the Farmers & Merchants State Bank and there purchased a draft for them, or in the same situation as though it had purchased a draft from the Farmers & Merchants State Bank for cash.
The great weight of authority is that under such circumstances the relation of debtor and creditor is created and not that of trustee and cestui que trust. In all, or nearly all, of the cases holding to the contrary some other element enters into it, as that of fraud or fiduciary relationship, which, as we have already seen, are not present in this case.” (State Bank v. State Bank, 114 Kan. 463, 467, 218 Pac. 1,000.)
To meet this line of argument the plaintiff cites a number of cases holding that the acceptance of a cashier’s check by a creditor is not an absolute payment, but merely a conditional payment depending on the payment of the check. In none of these cases, however, is that principle so applied as to warrant a preference over general creditors in such a situation as that here presented. The plaintiff also cities several cases in which language is used to the effect that the giving of a cashier’s check does not change the nature of the debt, but that rule likewise is applied in circumstances quite unlike those here presented, and where the question to be determined was not whether the relation of debtor and creditor resulted.
In view of the conclusion announced we need not consider whether, if the trust character of the deposit were conceded, there was a sufficient showing that the funds in the hands of the receiver were augmented by it.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages for personal injury to a house mover who came in contact with an electric wire which was suspended above the highway on which he was moving a house. The answer pleaded noncompliance with the statute regulating the moving of houses upon highways over which electric power wires are strung. A demurrer to the answer was sustained, and defendant appeals.
The accident occurred at the intersection of two highways, one extending north and south and the other extending east and west from the intersection. On the east side of the north-and-south highway were poles supporting three high-voltage wires, which the petition alleged were twenty-two feet from the surface of the highway, and were uninsulated. At the south side of the east-and-west highway were poles supporting insulated wires suspended some dis tance beneath the high-tension wires. From a pole at the southeast corner of the highway intersection, two insulated service wires extended in a northwesterly direction across the intersection. The petition alleged these wires were only fifteen feet above the surface of the highway. Plaintiff was assisting Joe Reddick in moving the house. The house was mounted on trucks drawn by an engine, which came from the south, and which turned east on the highway ■ intersection. Plaintiff was on top of the house, and while attempting to lift the two insulated service wires, he came in contact with or near to the upper high-voltage wires, and was injured.
The wires belonged to defendant. The answer denied that the service wires were only fifteen feet from the surface of the highway, alleged that the high-voltage wires were twenty-five feet from the ground, and alleged that the house extended to a height of sixteen feet or more after it was placed in final position for moving on the highway. The statute provides that no one shall move any house, building, or derrick of that height, upon or across any rural highway on which telephone, telegraph, electric light, or electric power wires are strung, without first obtaining a permit to do so. (R. S. 17-1914.) Permits are issued by the county clerk, on application and payment of a fee. If it will be necessary to cut, move, raise, or in any way interfere with the wires, the applicant must state the name of the owner of the wires and the time and place of the necessary interference. (R. S. 17-1915.) The county clerk shall then give twenty-four hours’ notice to the owner, and after service of notice it becomes the duty of the owner to furnish competent workmen or linemen to do whatever is necessary to facilitate moving of the house. Persons engaged in moving houses are forbidden to interfere with wires unless the owner, after notice, refuses to raise or cut them, and in that event, the house mover shall emplojr none but competent and experienced workmen or linemen to do the work. (R. S. 17-1917.) Provision is made for paying the expense of moving poles and raising and cutting wires to allow structures to pass, and two sections of the statute read as follows:
“It shall be unlawful for any person, firm, or corporation engaged as principal or employee in moving any house, building, derrick or other structure, as provided in the above sections, upon, across, or over, any public highway outside of the limits of any incorporated city, to move, touch, cut, molest, or in any way interfere with any telephone, telegraph, electric light or electric power wires or any poles bearing any such wires, except under and in compliance with the provisions of this act.
“Any person violating the provisions of this act shall be deemed guilty of a misdemeanor, and shall upon conviction thereof, be punished by a fine of not more than $100, or by imprisonment in the county jail for not more than sixty days, or by both such fine and imprisonment.” (R. S. 17-1918 and 17-1920.)
Plaintiff contends this statute was enacted for the single purpose of protecting the property of telephone, telegraph, electric light and electric power companies from damage by building and derrick movers, and had no public aspect beyond suppression of this species of interference with private property. The case of La Dow v. Oklahoma Gas and Eleotric Co., 28 Okla. 15, is cited in support of the contention. That case involved a city ordinance which forbade, under penalty, interference with electric wires without a permit from the owner of the wires, and the court held the ordinance was one to protect property from mischievous molestation.
As the result of needs arising in the economic development of the state, buildings were frequently moved from site to site, in both city and country. Occasionally, as the result of construction of a railroad, or location of a county seat, all the buildings of a town would migrate. After a mine in a particular locality was worked out, the mining community would move, taking their buildings with them; and in the mineral district it became a common practice to move houses, derricks, and other tall structures from place to place over the country roads. When this court was called on to define the nature of this use of roads and streets, the prevailing legal theory was that the use was extraordinary, and was discoi’dant with normal primary highway uses. The fact was, the use had become ordinary, in the sense of common and customary. The court gave due recognition to the fact, and declared the use to be lawful. Use of streets and highways for telegraph and telephone communication and for transmission of electric energy had become common. That use was also- lawful (State, ex rel., v. Weber, 88 Kan. 175, 127 Pac. 536), and it was inevitable that the house and derrick mover and the public service corporation should clash. Several interests were involved. Maintenance of efficient service to the public was jeopardized by haphazard and inexpert wire cutting and wire raising. Such operations left in their train crippled men and widows and orphans. The property of public service companies was damaged and their expenses were increased, and permissible use of highways by house movers was delayed and obstructed. It so happened the contest was waged chiefly in personal-injury cases. (Winegarner v. Edison, 83 Kan. 67, 109 Pac. 778 [1910]; Wade v. Electric Co., 94 Kan. 462, 147 Pac. 63 [1915]; Wade v. Electric Co., 98 Kan. 366, 158 Pac. 28 [June, 1916]).
In the Wade case, a house and derrick mover, without electrical training or experience, was killed while lifting a wire stretched across a highway, to permit the derrick he was moving to pass. The action was commenced by his widow. At the first trial a demurrer was sustained to plaintiff’s evidence. On appeal to this court the judgment was reversed. At the second trial the widow recovered a judgment of $8,000, and the electric company appealed. The case aroused unusual public interest, and briefs were filed on behalf of municipalities and public service companies not parties to the action. Besides that, the Kansas State Federation of Labor obtained permission to file a brief prepared by its attorney, J. I. Shepard. In that brief, the veteran workingman’s advocate made a characteristic appeal for conservation of human life and limb as a subject of vastly more importance to society than the accumulation of wealth. The judgment was affirmed on June 10, 1916. The legislature met on January 9, 1917, and on January 17 Senator Warlc introduced senate bill No. 169, entitled “An act regulating the moving of houses, buildings, derricks, and other structures, upon, across, or over certain public highways.” The bill passed with but slight amendment, and became a law on March 7, 1917. (Laws 1917, ch. 251; R. S. 17-1914 to 17-1920.) It is manifestly a statute enacted in the interest of the public welfare generally, and so far from being a petty, malicious-mischief act, it touches all the important interests suggested above which had been brought sharply to legislative attention by lamentable consequences of the conflict between the two kinds of exceptional highway use.
In this instance, the statute required Joe Reddick, assuming him to have been plaintiff’s employer, to apply for and procure a license to move the house upon the highway intersection over which dedendant’s wires were strung.. He was further required to furnish the necessary information to the county clerk to enable that officer to notify defendant of time when and place where these wires would be interfered with. The purpose was that defendant might furnish workmen to lift or cut the wires, and do whatever was necessary to allow the house to pass. To that end, defendant was required to furnish “competent workmen or linemen,” and competency includes not only ability to do the work in proper manner, but ability to appreciate all the ‘dangers of doing the work at the particular time and place, and to accomplish the desired result with safety to themselves and to those concerned in moving the house.
It is not to be presumed or inferred that if defendant had been notified it would have refused to do what the law required. Assume for the moment it had refused. It-then devolved on Reddick to employ “only competent and experienced workmen or linemen to do the work,” and he became subject to fine or imprisonment or both should he touch or molest defendant’s wires except through the agency of qualified workmen. Plaintiff does not venture to plead that he had any qualification whatever to do what he attempted to do, and even if defendant had been delinquent, plaintiff as the employee of a house mover was expressly forbidden to touch defendant’s wires, under the same penalty as his employer.
The petition had much to say about danger attending maintenance of a system for transmission of electric energy of high voltage, and duty of defendant to take measures commensurate with the danger, for protection of persons lawfully using the highway; and it was alleged the high-tension wires should have been insulated for the benefit of plaintiff who, as he worked on top of the moving house, was obliged to come in contact with or in close proximity to them. The difficulty is, plaintiff misconstrued the statute. Having misconstrued it, he ignored it, and pleaded common-law negligence, in a case peculiarly within purview of the statute. Plaintiff was not lawfully using the highway, and insulation or noninsulation of wires at this highway intersection Was a subject of no concern to him, because he was forbidden by law to be in the vicinity of the wire which injured him. The testimony in the Wade case disclosed it was not the practice to insulate high-tension wires between supports, and there was expert testimony that such insulation is not feasible. In any event, noninsulated high-tension wires were maintained along and across the highways of the state when the legislature acted. It did not provide that such wires should be insulated for the benefit of house and derrick movers. It provided that house and derrick movers should not use the highway beneath such wires in the prosecution of their business, without license to do so, and should not go among the wires at all. The statute is not a one-wire statute. The legislature was not ignorant of the fact that, in order to lift or remove a wire to permit a building to pass, a lineman may be obliged to work in the midst of or in proximity to a network of wires. Because of the great danger necessarily attending' such work, it was made unlawful for any one except a qualified workman to engage in it for the benefit of a house or derrick mover.
The result of the foregoing is, it was wholly immaterial to plaintiff how defendant maintained its wires at the time and place of the accident, and plaintiff was injured, not because defendant was guilty of breach of duty toward him, but because of his own unlawful conduct in placing himself in the dangerous situation which he occupied when he was injured.
It was admitted at the oral argument that if the statute were held to apply, no license to move the house had been procured, and no notice had been given to defendant to enable it safely to lift its own wires. Under these circumstances, the demurrer to the answer should be carried back to the petition, and will be so treated.
The judgment of the district court is reversed, and the cause is remanded, with direction to sustain the general demurrer to the petition. | [
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The opinion of the court was delivered by
Marshall, J.:
The action is one by a trustee in bankruptcy to set aside deeds conveying real property and asking that plaintiff as trustee be declared the owner of that property to be used for the payment of claims against the estate of the bankrupt. It is alleged that the deeds were made for the purpose of hindering, delaying, and defrauding the creditors of the bankrupt. Judgment was rendered in favor of the defendants, and the plaintiff appeals.
The action was tried without a jury, and special findings of fact and conclusions of law were made as follows:
“1. On the 26th day of December, 1919, and for some time prior thereto one James C. Tyler was the owner of the real estate described in the plaintiff’s petition consisting of approximately 1,760 acres in Finney county, Kansas.
“2. On the said 26th day of December, 1919, the said James C. Tyler and his wife made, executed and delivered to the Davis-Wellcome Mortgage Company a mortgage on said lands to secure the payment of the sum of $17,500, and on the same date made, executed and delivered to the said Davis-Wellcome Mortgage Company a second mortgage on said lands to secure the payment of the sum of $1,837.50 payable as follows: $131.25 on the 15th day of July, 1920, and $131.25 at the end of each six months thereafter. Both of said mortgages were duly filed for record in the office of the register of deeds of Finney county, Kansas, on the 29th day of January, 1920.
“3. On the 29th day of January, 1921, the said James C. Tyler made, executed and delivered to one W. B. George a mortgage on the lands described in plaintiff’s petition to secure the payment of the sum of $24,396.39, which mortgage was duly filed for record in office of the register of deeds in Finney county, Kansas, on said 29th day of January, 1921, which said mortgage was by the said W. B. George duly assigned to the First National Bank of Garden City, Kansas, on the 28th day of January, 1922.
“4. That on the 19th day of February, 1921, at a term of court which began on the second Monday of December, 1920, and in an action which was filed on the 3d day of April, 1920, one J. W. Gray, doing business as the Gray Tractor Company, recovered a judgment in the district court of Finney county, Kansas, against the said James C. Tyler for the sum of $760, debt bearing interest at the rate of 7 per cent per annum and $8.20 costs.
“5. That on the 14th day of June, 1921, pursuant to an execution issued out of the district court of Finney county, Kansas, on the judgment mentioned in finding No. 4, the sheriff of Finney county, Kansas, sold the lands described in the plaintiff’s petition to the said J. W. Gray for the sum of $804, which sale was later, and on the 17th day of June, 1921, duly confirmed by the district court.
“6. That on the 4th day of February, 1922, and for some time prior thereto the McAllister Lumber Company, a corporation, had a lien on the lands described in plaintiff’s petition by virtue of a mechanic’s lien and a judgment foreclosing same recovered in the district court of Finney county, Kansas, which on said date amounted to approximately $360.
“7. That on the said 4th day of February, 1922, the said James C. Tyler conveyed by quitclaim deed to the defendant L. E. Chase, who is an uncle of the said Tyler, all of his right, title and interest in and to the lands de scribed in the plaintiff’s petition, which deed was filed for record in the office of the register of deeds of Finney county, Kansas, on the 6th day of April, 1922.
“8. That in consideration of the conveyance of said lands to him, the said L. E. Chase paid to the said James C. Tyler the sum of one dollar ($1) in cash, and shortly thereafter paid taxes on said lands in the sum of approximately $776, paid the lien of the McAllister Lumber Company, and paid interest on the two mortgages on said lands in the sum approximating $2,000, which included some installments of the principal due on the second mortgage, redeemed said land from the sheriff’s sale to Gray on the 6th day of April, 1922, the amount necessary to effect such redemption being $840.27, and took said lands, subject to a balance of principal and interest due on the first and second mortgages hereinbefore mentioned of approximately $18,800.
“9. That on the 29th day of June, 1922, the defendant L. E. Chase and his wife conveyed said lands by general warranty deed to the defendant C. W. Haflick, who is a brother-in-law of said Tyler, said deed reciting a consideration of $40,950, which deed was filed for record in the office of the register of deeds of Finney county, Kansas, on the 5th day of July, 1922.
“10. That the consideration for the conveyance of said lands from Chase to Haflick as described in finding No. 9 was $500 cash, which went to the said J. C. Tyler, who conducted the necessary negotiations for the sale, the transfer of indebtedness due the said Haflick from the said J. C. Tyler, secured by mortgage on Tyler’s interest in Brown county lands, in the sum of $11,500 and mortgage back from Haflick to Chase in the sum of $11,450, and the mortgages against said land which were figured at $17,500, the second mortgage being treated as a part of the interest on the first mortgage, or what is generally known as a commission mortgage.
“11. That the said 4th day of February, 1922, the debt due from the said James C. Tyler to the First National Bank of Garden City, upon the note and mortgage originally given to W. B: George and described in finding No. 3 was wholly unpaid, and in addition thereto, the said James C. Tyler was indebted in sums totaling several thousand dollars to other persons, including the witnesses F. M. Dunn, L. A. Baugh, M. O. Willey and L. L. Jones, and was on said date insolvent, and the said L. E. Chase was on the said date fully aware of the financial condition of the said Tyler and that he was insolvent.
“12. That before taking said quitclaim deed from the said Tyler the said L. E. Chase consulted with attorneys and was advised that by taking such a deed and redeeming said lands from the sheriff’s sale to Gray he would acquire the title to said land free from the lien of the mortgage executed to George and held by the First National Bank, and he took said deed and made such redemption with the intention and understanding that by so doing he would deprive the said First National Bank of any opportunity to redeem said land from the sale to Gray and leave the bank without any security for its debt, knowing at said time that this said James C. Tyler at said time had practically no other assets from which said bank or any of the other creditors mentioned in finding No. 11 could realize upon the debts due them from the said Tyler.
“13. That at the time he took the conveyance of said lands from the de fendant Chase the defendant Haflick was in a general way aware of the financial condition of the said James C. Tyler and of the manner in which said lands had been conveyed by Tyler to Chase.
“14. That said lands were at the date of the conveyance from Tyler to Chase and at the date of the conveyance from Chase to Haflick of the value of $20 per acre.
“15. That on the 23d day of January, 1923, the said James C. Tyler was adjudged bankrupt upon his voluntary petition, and on the third day of February, 1923, at the first meeting of his creditors, the plaintiff herein was duly elected as trustee of said bankrupt estate, and ever since has been and now is the qualified acting trustee of the same.
“16. That at'the time of filing his voluntary petition in bankruptcy the said James C. Tyler scheduled as unsecured indebedness approximately $40,000 in claims, including the debt to the First National Bank, all of which claims either have been or will be claimed and proven in bankruptcy proceedings and will or should be allowed as just claims against the estate of said James C. Tyler.
“17. That the property of the estate of the said James C. Tyler which has or will come into the hands of the trustee for the payment of unsecured claims and the costs and expenses of the bankruptcy proceedings will not exceed in value the sum of $200.
“Conclusions of Law.
“1. The lien of the judgment in the case of Gray against Tyler dated back to the beginning of the term at which it was rendered and was prior and superior to the lien of the mortgage given to George and transferred to the bank.
“2. Tyler’s equity of redemption in the land after the sale to Gray was exempt from execution and his creditors cannot complain of the purpose or consideration for which the same was transferred.
“3. The defendants are entitled to judgment for costs.”
The principal question is: What was conveyed by the quitclaim deed from James C. Tyler to L. E. Chase? Tyler, at the time he executed the deed, had only a right of redemption from the sheriff’s sale of the land. The determination of the question presented depends on the law of the state of Kansas giving the right to redeem land sold on execution. Section 60-3460 reads:
“Real estate once sold upon order of sale, special execution or general execution, shall not again be liable for sale for any balance due upon the judgment or decree under which the same is sold, or any judgment or lien inferior thereto, and under which the holder of such lien had a right to redeem within the fifteen months hereinbefore provided for.”
The liens of some of the creditors of J. C. Tyler on the land were terminated by their failure to redeem from the sheriff’s sale. Other creditors of J. C. Tyler did not have any lien on the land. What complaint can they make of the fact that Tyler conveyed his right of redemption to L. E. Chase? Tyler was not compelled to redeem. He could have allowed the sale to stand. Section 60-3455 of the Revised Statutes reads:
“The rights of the defendant owner in relation to redemption may be assigned or transferred, and the purchaser or assignee thereof shall have the same right of redemption as the defendant owner; but the right of redemption shall hot be subject to levy or sale on execution.”
. In Kueker v. Murphy, 86 Kan. 332, 334, 120 Pac. 362, this court said:
“The sale of the land under the judgment extinguishes the lien on it, without doubt, and the statute also provides that ‘the right of redemption shall not be subject to levy or sale on execution’.”
In Jones v. Perkins, 115 Kan. 759, 760, 225 Pac. 97, this court said:
“The right of redemption is not subject to levy or sale on execution.”
In In re Estate of Wood, 118 Kan. 548, 235 Pac. 864, this court held that the right of redemption could not be ordered sold by the probate court for the payment of the debts of the deceased. The court said:
“If the right reserved to him by the statute — to retain the possession of the land for a fixed period with the privilege of redeeming it — were subject to be taken by a creditor this purpose would be defeated. To prevent this the clause was inserted that ‘the right of redemption shall not be subject to levy of sale on execution.’ The language should be interpreted liberally to promote the-general end sought, rather than strictly according to the bare letter. A purpose is not lightly to be attributed to the legislature to withhold the occupancy and use of the land for eighteen months from the creditor (in this case a first lien holder) for whose benefit the sheriff’s sale was made, while leaving it open to the claims of other creditors.” (p. 549.)
If the right of redemption cannot be sold On execution, the trustee in bankruptcy cannot look to that right for assets with which to pay claims of creditors. If he cannot look to the right of redemption for assets he cannot maintain this action.
The judgment is affirmed.
Hopkins, J., not sitting. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by the administratrix of the estate of a deceased principal to require his agent and attorney in fact to account, and to recover judgment for the balance found due as the result of the accounting. Among other defenses, the agent pleaded the statute of limitations. Plaintiff recovered, and defendant appeals.
P. D. Brown was a prosperous farmer, who lived in Mercer county, Missouri. He owned 660 acres of land, and possessed ■liquid financial resources. In 1910 he commenced to send money to Kansas, to be loaned on real estate and other security, and he continued to do so until the greater portion of his investable funds had been transferred. Early in 1910 he gave W. J. Madden, of Hays, power of attorney to lend money, buy and sell commercial paper, release mortgages, and do other business for him. Later in the year he removed to Hays, where he resided until his death, which occurred on December 19,1917. From the time of Madden’s appointment until Brown’s death, Madden was Brown’s business and financial agent, in active charge of the investment, collection, and reinvestment of Brown’s funds. The business was so conducted that the relations between Madden and Brown were highly fiduciary.
Brown and his wife had an only child, a daughter, who was married to Ed F. Madden, of Hays. After Brown and his wife removed to Hays, Mrs. Brown died, and Brown went to live with his daughter. After his daughter’s death, he continued to live in the Ed F. Madden home. Ed F. Madden and his wife had two children, W. J. Madden and Mollie Madden Glathart. At the time of Brown’s death, W. J. Madden, his wife and two children, and Mollie Glathart, were living with Ed F. Madden. Ed F. Madden died in September, 1921.
Brown died intestate, leaving as his heirs his two grandchildren, W. J. Madden and Mollie Glathart. He was buried in Missouri, and the two grandchildren attended the funeral held there. After they returned from the funeral, and in December, 1917, at her father’s home, Mollie inquired of her father and brother about her grandfather’s estate. They told her Brown left no estate, that he had deeded his land to Ed F. Madden, and had given his personal property to Ed F. and W. J. Madden. The deed was produced, and was exhibited to her. In April, 1922, Mollie was appointed admin istratrix of Brown’s estate, and on August 17, 1923, she commenced the action which resulted in the judgment appealed from.
The petition alleged that an arrangement was made in 1910 between Brown and W. J. Madden for Madden to lend, collect, and reinvest money belonging to Brown, and pleaded execution of the power of attorney. The petition further alleged that, pursuant to the arrangement, money, credits, and securities came into Madden’s possession, that at the time of Brown’s death Madden had not been called on for the money and securities in his hands, and that he had in his possession money, notes, mortgages, and other securities belonging to Brown’s estate which plaintiff was unable to itemize, but which amounted to approximately fifty thousand dollars. The petition also alleged death of Brown, appointment of plaintiff as administratrix, demand on Madden for an accounting, and his refusal to account. The prayer was for an accounting, and for judgment for the amount found due. Among other defenses, the answer alleged that any cause of action arising out of the transactions referred to in the petition accrued in Brown’s lifetime, and plaintiff’s action was barred by the statute of limitations. The cause was referred to a referee, who returned findings of fact and conclusions of law. The referee found Brown made no gift of his personal property to Ed F. and W. J. Madden, and found W. J. Madden was indebted to the estate in the sum of $30,343.35. The referee’s conclusions of law which are now material follow:
“4th. The conversation found to have been had between Mollie Glathart and Ed F. Madden at the home of the latter soon after the death of P. D. Brown, did not constitute a demand for money or property or an accounting for the same, and no other act or word on the part of Mollie Glathart started the statute of limitations in operation in favor of the defendant.
“5th. The statute of limitations did not begin to run in favor of the defendant until the appointment of the plaintiff as administratrix in April, 1922.
“6th. Plaintiff’s cause of action is not barred by the statute of limitations.
“7th. The plaintiff is entitled to judgment against the defendant for the sum of $30,343.45, which should bear interest at the rate of six per cent per annum from and after the appointment of the plaintiff as administratrix. . . .”
In the district court, defendant moved to modify certain findings of fact returned by the referee, including finding No. 24, which related to the conversation referred to in the fourth conclusion of law. Plaintiff strenuously denied that any such conversation took place. Her testimony follows:
“Q. Did you have a conversation with W. J. Madden respecting the estate of your grandfather, P. D. Brown, at the home of Ed F. Madden, where you say you had all been living together prior to the death of P. D. Brown, the day after your grandfather’s funeral? A. I did not — no, sir.
“Q. You say no; now is it not a fact that at the home the day after the grandfather’s funeral, in the presence of W. J. Madden’s children, you had a conversation with W. J. Madden respecting your grandfather’s estate? A. I did not — no, sir; I did not.
“Q. And is it not a fact that at that time, in the presence of Mr. Madden’s children and your father, W. J. Madden told you that P. D. Brown left no estate? A. No, sir. That is not a fact; no, sir.
“Q. You say then that there was no such conversation had at that home with reference to your grandfather’s estate, at which time W. J. Madden told you that P. D. Brown left no estate? A. No, sir — no, sir.”
The referee found a conversation took place, but that W. J. Madden was not present. The district court modified the finding in accordance with the evidence, to read as follows:
“24th. Shortly after the funeral of P. D. Brown, which took place in Missouri, and which was attended by Mrs. Glathart and the defendant, and in December, 1917, Mrs. Glathart, at the home of her father in Hays, made some inquiry of her father, E. F. Madden, and of her brother, W. J. Madden, the defendant herein, concerning the Brown estate, and was told by her father and her brother that her grandfather left no estate, that Brown had deeded his real estate to E. F. Madden and had given his personal property to him and the defendant. The defendant’s daughters went at the suggestion of E. F. Madden to the defendant’s office to procure a deed to real estate, so that Mrs. Glathart might examine it. The daughters procured the deed from their father at the office, took it to the residence of Ed F. Madden, and it was exhibited to Mrs. Glathart. Mrs. Glarhart did not know at the time anything concerning her grandfather’s estate, and had no knowledge as to whether in fact the gift referred to by her father had actually been made, or if made, rightfully so, except as indicated by the deed just referred to, the nature of which and the property described therein is not disclosed by the evidence.”
The district court having indicated that it would adopt the referee’s findings and conclusions of law, defendant asked and was granted leave to amend his answer to conform to the proof, by alleging Mollie Glathart as an individual was the only person interested in the result of the action, alleging notice to her of defendant’s claim as appeared by finding No. 24, and alleging the action was barred by the statute of limitations. Plaintiff then asked and was granted leave to amend her reply to meet the issue tendered by the amendment of the answer.
The amendment to the reply consisted of three paragraphs. The first was a general denial. The second reads as follows:
“For further answer to the amendments to defendant’s answer, the plaintiff states the cause of action set forth in plaintiff’s petition did not accrue until after the death of P. D. Brown, and that there was no one who could bring said action until an administrator was appointed for said estate, and that no administrator was appointed until the letters of administration were granted to this plaintiff on the 21st day of April, 1922, and within less than two years next prior to the commencement of this action.”
The substance of the third paragraph was that Madden alone knew about Brown’s property; he was plaintiff’s brother, and older than she; she reposed implicit trust and confidence in him; he knew she reposed implicit confidence and trust in him, and knew she relied on him to divulge the true facts concerning the condition and affairs of Brown’s estate; if the statements found to have been made in finding No. 24 were made, they were made maliciously and fraudulently; that disregarding his duty to make full and truthful exposition of the affairs of the estate, Madden concealed the facts, and made the statements for the purpose of deceiving and defrauding plaintiff, and for the purpose of inducing her to forego investigation ; and she did not discover the fraud practiced on her until within two years before the action was commenced.
Plaintiff had moved the court to adopt the referee’s findings of fact and conclusions of law. The findings having been modified, and the pleadings having been amended, this motion was sustained, and judgment was rendered accordingly.
When P. D. Brown died, he left no will, he had no widow to claim exempt articles, and no administrator of his estate was appointed. What became of his personal property?
The property was subject to appropriation for payment of debts, if there were debts, but property not necessary for payment of debts is distributed to heirs, and is distributed in kind whenever that may be done satisfactorily and equitably. (R. S. 22-130, 22-131.) If an administrator be appointed, he takes legal title which relates to date of death. This is necessary in order that he may properly perform his functions, and in order that the probate court may properly perform its functions. (Citizens State Bank v. Moore, 121 Kan. 628, 630, 249 Pac. 587.) The administrator takes title, however, for purpose of administration only. He represents the estate for the benefit of two classes of persons, creditors and heirs. The claims of creditors come first. When they are satisfied, the residue of the estate goes to heirs. The result is, on death of an intestate his heirs take an interest in his personalty by descent. This interest is property, and is often referred to as equitable title. The interest is not equitable, however, but legal, and although it may be extinguished, is not contingent. The extent of the privileges and powers of heirs which constitute their property is conditioned, however, by liability of assets to appropriation for payment of debts.
Appropriation for payment of debts depends, first, on existence of debts, and second, on the taking of proper steps to secure allowance and payment of debts. No debt may be exhibited as a demand against an estate until an administrator has been appointed. A creditor may not wait indefinitely, however, for appointment of an administrator to whom demand may be exhibited. For fifty days after death of an intestate, his widow and next of kin are preferred for appointment. After that, administration may be granted to a principal creditor, if there be one competent and willing to undertake the trust, and if not, to some suitable person (R. S. 22-312); and a creditor who fails to exercise diligence to procure appointment of an administrator to whom he may present his claim for allowance, loses it. (Timmonds v. Messner, 109 Kan. 518, 200 Pac. 270, and cases cited in the opinion.) Formerly, the reasonable time within which a creditor might secure appointment of an administrator was three years. In 1911 the period was reduced to two years. The result is, at the expiration of two years and fifty days from death the contingency that personalty may be appropriated for payment of debts no longer exists if no administrator has been appointed. The privileges and powers of the heirs are no longer limited, and their ownership becomes unqualified ownership. The same is true if the primary condition to appropriation — existence of debts to be paid— does not attach. Ordinarily, letters of administration, title in the administrator, reduction of property to possession, inventory, and appraisement, are means to the end that creditors may be satisfied, and when creditors are satisfied the function of administration has been performed. Likewise, when there are no creditors administration has no office to perform. There are some exceptions. There may be compulsory administration for succession tax purposes. Administration may be resorted to, and sometimes may be a practical necessity when there are no creditors. (Nickel v. Vogel, 76 Kan. 625, 633, 92 Pac. 1105.) In the latter instance, however, the administrator acts for the sole benefit of the heirs. Their interests are not subject to extinguishment, they are the real parties in interest, and their interests are only nominally qualified by the administrator’s legal title.
When liability to appropriation for payment of debts does not exist, or has been removed, and no administrator has been appointed, heirs hold in common, and have all the privileges of ownership. They may take or recover possession of assets, collect debts, and make distribution, in kind or otherwise. On division by agreement, each one becomes owner in severalty of his share. (Brown v. Baxter, 77 Kan. 97, 94 Pac. 155, 574.) Because of the derivative character of the law relating to administration of decedents’ estates, there is some conflict in the authorities upon this subject. (23 C. J. 1001.) This court prefers the liberal view, and is already committed to it by the decisions in the cases of Nickel v. Vogel, supra, and Brown v. Baxter, supra.
P. D. Brown died on December 19, 1917. After February 7, 1920, claims of creditors against his estate, if there were any, were barred. After that, no person in existence was interested in requiring W. J. Madden to render an account oh his conduct as P. D. Brown’s agent, except Mollie Glathart. By changing the petition which she filed to state that Brown died intestate, that she and Madden were his only heirs, and that no administrator of his estate had been appointed, she could have filed the petition in her individual capacity, to obtain the relief she prayed for as administratrix. The district court possessed the same power to compel discovery and to require an accounting for her benefit as an individual that it possessed to compel discovery and to require an accounting for her benefit as administratrix. If she were successful, the same result Would be attained, with this difference: Suing as an individual, she would recover one-half the amount due from Madden to Browh’s estate. The other half would belong to Madden. Suing as administratrix, she would take the entire sum found due from Madden to the probate court, the probate court would deduct the costs of administration, including an allowance to the administratrix, the probate court would order her to pay back to Madden one-half the remainder, and she would keep the other half. Defendant could not object to her suing in her individual capacity, because it was sufficient for him that he would not be denied privilege to urge whatever defenses he might have.
The law favors economy, prefers direction to indirection, and is definitely committed to a policy of repose. The statute of limitations may not be evaded by circuitousness. The principle involved is that the record is searched for the essence of the controversy and the real party in interest, and application of the statute is considered as it affects them. A statement of the principle, and a negative application of it, appear in Horton v. Jones, 110 Kan. 540, 204 Pac. 1001:
“In applying statutes of limitation, courts are not concluded by the names of the parties to an action, but look to the merits of the controversy, the nature of the relief, and the effect of the judgment. The nominal plaintiff is passed by, the record is examined to ascertain who is the real party in interest and, if the real party in interest be not barred, the nominal plaintiff is not barred.”- (p. 541.)
Strike, from the concluding portion of the quotation the word “not,” and a positive application of the principle is stated.
The action of Mollie Glathart as administratrix was based on implied contract of the agent to pay money and the value of property due to his principal, on an accounting. Regarded as an action by Mollie Glathart for her share of her grandfather’s estate, it was based on the implied contract of her brother to pay money and the value of property received and held for her use and benefit. The three-year statute of limitations applies to a cause of action of this nature. The action was commenced five years and eight' months after Brown’s death, and more than three years and six months after Mollie Glathart’s interest in his estate had ripened to unqualified ownership.
Plaintiff confidently relied, and the district court evidently rested the judgment, on the cases of Carney v. Havens, 23 Kan. 82, and Mills v. Mills, 43 Kan. 699, 23 Pac. 944. Those cases involved claims in favor of the estates of deceased persons. In each one no cause of action accrued until after death of the creditor. The court held the running of the statute of limitations in favor of the debtors was suspended until, by appointment of an administrator, some one was in existence who could bring suit.
In the case of Toby v. Allen, 3 Kan. 399, the court said death of a debtor suspends the statute of limitations until an administrator is appointed, because there must be a party to be sued. .In the case of Nelson, Adm’r, v. Herkel, Adm’r, 30 Kan. 456, 2 Pac. 110, the syllabus reads:
“Not only must there be a person to sue, but a cause of action cannot accrue or exist unless there is a person in being against whom an action can be brought and the right of action enforced. Held, therefore, that the death of the debtor operates to suspend the statute of limitations until an administrator is appointed.”
In the case of Bauserman v. Charlott, 46 Kan. 480, 26 Pac. 1051, the question was whether death of a debtor suspends the statute indefinitely — a question not presented to the court in any previous case. In the opinion prepared by Chief Justice Horton, who had Written the opinion in the case of Nelson v. Herkel, it was said:
“It is also true that this court has said that the death of the debtor operates to suspend the statute. (Toby v. Allen, 3 Kan. 399; Hanson v. Towle, 19 id. 273; Nelson v. Herkle, 30 id. 456; Mills v. Mills, 39 id. 455.) But this court' has never said, when the question was properly presented, that the creditor can indefinitely prolong the time of limitation by his own omission or refusal to act', or that the death of the debtor operates to suspend the statute of limitations indefinitely.” (p. 483.)
It will be observed the case of Mills v. Mills, relied on by plaintiff in the present action, was cited. The opinion emphasized the sound policy of statutes of limitation, and it was held that if a creditor would save his claim against a decedent from bar of the statute, he must use diligence to take out letters of administration for himself or some other person.
In this case, it is sufficient to say the court has never held, when the question was properly presented, that death of a creditor operates to suspend the statute of limitations indefinitely. To do so would defeat the policy of the statute. One who is privileged to sue on his own account without appointment of an administrator should do so, and should do so within the statutory period. His situation is analagous to that of a creditor of a decedent, who may end suspense by procuring appointment of an administrator. He should not 'be allowed to circumvent the statute by having himself appointed administrator and bringing suit in his representative capacity for his sole benefit as an individual, after direct action in his own behalf has become barred. It may be observed here that in this instance plaintiff was next of kin and preferred by law for appointment as administrator, and the court has not said, in any case in which the question was properly presented, that such a person may prolong the time of limitation indefinitely by omission or refusal to act.
Plaintiff's amendment to her reply did not remove the bar of the statute. To do that it was necessary the facts pleaded in the third paragraph of the amendment be established by findings of fact. Plaintiff did not ask for any modification of the findings of fact, the findings did not include and were not extended to cover the new matter, and the decision was based on the second paragraph of the amendment, as indicated by the fourth conclusion of law.
Madden’s agency for Brown ended with Brown’s death, or at least with the conclusions of certain transactions in fieri at the time of his death. At Brown’s death, his property descended to his heirs; but the statute of descents and distributions does not provide that the confidential relation of agency also descends to heirs. There must be a new agency for the heirs, created in some consensual way, and Madden repudiated that relation immediately after Brown’s funeral.
The fact that Madden was plaintiff’s brother and older than she, did not make his relation to her fiduciary. The test is not what she supposed, but what ground he furnished her for belief. The litigation concerns property. Madden was heir and plaintiff was heir, and unless he manifested to her an attitude furnishing ground for belief that he would stand toward her in a relation of trust and confidence with respect to the property, and she accepted and relied on that manifestation, he may not be held to such relation. There is no finding of any fiduciary relation, and the 24th finding of fact made a finding of the character indicated impossible.
The 24th finding is that shortly after Brown’s funeral, plaintiff, not knowing at the time anything about her grandfather’s estate, asked for information concerning it. Her father and her brother told her her grandfather left no estate; they said her grandfather had deeded his real estate to her father, and the deed was shown to her; and they said he had given his personal property to her father and brother. She alleged in the amendment to the reply that if that statement was made, it was made with malicious intent to deceive and defraud. The court did not so find. Assume intent to deceive is inferable from the fact the court found Brown made no gift of his personal property to plaintiff’s father and brother, as they said he did; plaintiff did not allege that she placed any.reliance whatever on the statement, or was induced to act or remain inactive on account of it. She could not consistently do so, because she denied the conversation occurred; and there is no finding that she did act to her detriment in reliance on the statement.'
The cause of action pleaded in the petition was based on contract, and not on fraud, and the fraud pleaded in the reply was restricted to the statement which appears in the 24th finding. Just before the reply was amended, that finding was modified on defendant’s application, to conform to the proof. If plaintiff wished to get fraud into the finding, or to secure an independent finding of fraud relating to the incident narrated, she had opportunity to do so. The court covered the incident by the modified finding, and fraud was not included.
Plaintiff’s motion that the court adopt the findings of fact and conclusions of law was sustained, judgment was rendered accordingly, and she is concluded by the findings of fact.
“If, upon the trial of a question of fact by the district court, findings of fact are made, and such findings are not assailed in the district court as incomplete or incomprehensive, it wll be presumed by this court that they embrace all the facts of the controversy established by the proof.” (Shuler v. Lashhorn, 67 Kan. 694, syl. ¶4, 74 Pac. 264.)
It is clear the action was commenced and prosecuted on the theory that Brown’s death suspended running of the statute of limitations until it pleased plaintiff to release it. Judgment was invoked and was rendered on that theory. ' The court holds the theory is unsound.
The judgment of the district court is reversed, and the cause is remanded with direction to render judgment for defendant. | [
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|
The opinion of the court was delivered by
Hopkins, J.:
The action was one to recover damages for breach of a pasturage contract. The plaintiff, who lived in Pawhuska, Olda., was extensively engaged in the cattle business. The defendant, who lived in Viroqua, Wis., owned what was known as the Ohio ranch, sixteen miles east of Arkansas City, in Cowley county. H. H. Rice represented the plaintiff in certain negotiations for the rental of the Ohio ranch for the summer season of 1923. His father, H. J. Rice, had for some years previous had charge of the Ohio ranch for the defendant. The questions Were whether H. J. Rice had authority as agent for the defendant to rent the ranch and whether a contract was actually entered into. A demurrer to plaintiff’s evidence was sustained, and he appeals.
Was there sufficient evidence to require submission of the case to a jury?
H. H. Rice, among other things, testified in substance:
“Am living in Grainola, Olda., engaged in grazing cattle, have pasture for rent down there. Know the Ohio ranch, have known Eckhardt for 12 to 15 years. Have known Walker about 8 years. Along in Feburary, 1923, about the time of the cattlemen’s convention at El Paso, I had a letter in my possession written by Mr. Eckhardt to my father with reference to renting of the Ohio ranch. Met Mr. Walker on that trip. Had a conversation with him. After I returned talked to my father about it at Arkansas City. This conversation was about three weeks before April 10. Told my father Walker would give $6 for this grass. He said Mr. Eckhardt had asked $7 for it; that he would wire him or write him and see what he had to say about it. I came back a few days after that. He had heard from him (Eckhardt). He showed me a letter from Eckhardt of March 31, which says: ‘However, I w'ould like to have the refusal of $6 up until April 10, if necessary.’ I read this letter over, told my father that I would wait until the 10th if he would draw a contract if he hadn’t heard from Mr. Eckhardt about that time. He said he would. I came up on Monday and saw my father at his home. I stayed all night the 9th and 10th. My father told me to go and draw a contract and he would let me have the pasture for $6 for the grazing season. I had this contract drawn, signed the name of E. C. Walker. About this time, I sent a telegram to Mr. Walker. My father, at the same time, sent a telegram to' Mr. Eckhardt the same day. We were both in the office together.”
On cross-examination, among other things, he testified:
“My father showed me a letter showing where he was instructed to rent this grass. I had a conversation with my father about renting the pasture prior to the time I. went to the cattlemen’s convention at El Paso. He wanted me to rent it for him. I was to get $7 per head if I could. I couldn’t get $7 per head. . . . My father just told me that Eckhardt said, ‘Go ahead and draw a contract about the 10th.’ ... It wasn’t my intention for Mr. Eckhardt to sign the contract. I took this contract home, my father’s home, just gave it to him and asked him how it was. He said it was all right. Said he would sign it and send it to Mr. Eckhardt. ... I was acting for Mr. Walker. My father didn’t sign it. He said he would sign it and send it to Mr. Eckhardt. Yes, I say here to the court and jury that my father said he would sign it. We both went and wired. I left the contract with him, expecting him to sign. I didn’t think it .was necessary for me to have my contract signed up and take a copy. . . . We both wired on this contract that the deal was made. . ■. .1 don’t know whether both contracts were sent to Mr. Eckhardt or not. I know we agreed on the terms. . . . He read the contract over after I showed it to him. He said ‘the contract is all right.’ ”
James E. Warren, among other things, testified in substance:
“Live in Cowley county. Know Eckhardt and the Ohio ranch. Sent a telegram, to Eckhardt in April, 1923. Did not get a reply to that telegram. Next evening, after 8 o’clock, called Eckhardt at Viroqua by telephone. Told him I had a chance to get 850 cattle; could use the grass at that place. All the grass on the Ohio ranch and the Kolar ranch for that many cattle. ■ He told me he thought that Rice had sold it, but didn’t know for sure, but would let me know the next day. He didn’t let me know the next day. Two or three days after I talked with him, I got a card from Mr. Rice saying Mr. Eckhardt asked him to advise me that the grass was sold to Walker.”
On January 13, 1923, Eckhardt wrote H. J. Rice, among other things, as follows:
“Am pleased to' know that you have the cattle promised and hope the price of grass is good, but will be willing to accept the highest going price (think $7 not too much).... Would want to hold these you have promised I think in preference to buying if price of pasturage is fair, but should I decide to buy they would not be hard to place. Wish you would write me who owns these steers and who they are coming through, as we do not want to lose them, and would correspond with them direct. ... If these cattle are absolutely certain and the owner wishes this grass and no other, there is only one of two things to do, which is to accept or reject. ... If you can get a letter from the party, do so and send it to me and send name and address, that I may get in touch with him. You may be sure I will not spoil anything for you.”
On February 16 he wrote:
"I have your letter in regard to the pasturage, and will say I am willing to depend upon you for the cattle if I was sure you can furnish them and at a price that we should have as compared to other pastures with one commission.”
On March 20 he wrote:
“Sorry you did not get to go down, but presume it would have made no difference. Possibly you can find them yet if you could see Walker yourself. . . . See what you can do as to cattle and wire me if you can furnish them.”
On March 31 he wired:
“Have other good prospects at $1.50 per head more money; nothing sure; my old offer holds good to you any time before I close. Wire me latest date your offer will stand and if I feel justified may accept offer to cover one thousand head of steers.”
The same date he wrote:
“Will consider for a few days, and ask you if you cannot raise it to hold onto it as’long as possible, then before passing it up give me another chance by wire. . . . However, would like to have the refusal of the $6 up until April 10th if necessary and he can wait that long.”
On April 6 he wrote:
“We ought to have $7, but possibly better take the Walker cattle at the best price we can get as it is getting time. If he will advance some money so we can take up the mortgage, just have it assigned to me instead of paying it off. Then it will stand ahead of anything else. Also have them assign the note same as though I was buying it from them, which in fact is the case. ... I hope you can arrange for the mortgage. Will send receipt to Walker for what money we get. . . . Will forward contract if necessary; otherwise draw it for October 10 to 15 with $1 per month per head after October 15. Will have pastures burned. Am writing Mr. Wicker to-day. Wire if he does not take grass.”
On April 7 Rice wired Eckhardt:
“Wilkers wants to know at once about grass, as it is getting late.”
On April 9 Eckhardt wired Rice:
“Wire received yesterday; letter of 6th has doubtless reached you by now. The F. Jacksons of Miami, Tex., want grass for 600 steers if Walker deal is not closed. Wire Jackson $7 for season. Do not lose Walker, but get the high dollar.”
On April 10 H. H. Rice wired Walker:
“Drew contract to-day on thousand steers at six; let me know about Miller grass later in care of St. Angelo hotel; answer soon.”
On April 12 Eckhart wired H. J. Rice:
“Can you close Walker? If not see Warren to-day; wire.”
Rice replied by wire the same date:
“Closed with Walker; will send contract to-day. Did not get any money down.”
•On April 16 Eckhardt wired Rice:
“Have you sent contracts? Am offered $8. Can I accept it? Wire.”
Other evidence need not be detailed. On April 18 Eckhardt wrote the plaintiff Walker he was returning contract and thought it best to cancel the same, and on the nineteenth he wired Mrs. Rice that the contract by Rice was refused. Other communications were had between the plaintiff and defendant, from which it appears that after transmission of the contract to defendant by H. J. Rice the defendant received an offer of a higher price for the renting of his ranch and therefore canceled the deal with Walker.
“An agency has been defined as a contract, either express or implied by which one of the parties confides to the other the management of some business to be transacted in his name, or on his account, by which that other assumes to do the business and to render an account of it.” (21 K. C. L. 817.)
In Wilson v. Haun, 97 Kan. 445, 155 Pac. 798, it was said:
“To establish the relation of agency an express appointment and acceptance thereof is not essential, but it may be implied from other facts, such as the statements of the parties, their conduct and the relevant circumstances.”
In Hucabee v. Pullman Company, 8 F. (2d) 48, it was said:
“It is not essential that any actual contract should subsist between the parties or that compensation should be expected by the agent. ... If relations exist which will constitute an agency, it will be an agency, whether the parties understood it to be or not. Their private intentions will not affect it.”
The rule is thus stated in 21 R. C. L. 819:
“Whether an agency has been created is to be determined by the relations of the parties as they in fact exist under agreements or acts. If relations exist which will constitute an agency, it will be an agency, whether the parties understood it to be or not. Their private intention will not affect it. It is not essential that any actual contract should subsist between the parties or that compensation should be expected by the agent; and while the relation in its full sense, invariably arises out of a contract between the parties, yet the contract may be either express or implied.” (See, also, Banks Brothers v. Everest and Waggener, 35 Kan. 687, 12 Pac. 141; Raynor v. Bryant, 43 Kan. 492, 23 Pac. 601; Hansford v. Meserve, 97 Kan. 450, 53 Pac. 835; Linscott v. Conner, 85 Kan. 865, 118 Pac. 693; 2 C. J. 435; Mitchell v. Derby Oil Co., 117 Kan. 520, 232 Pac. 224.)
“A demurrer to the evidence of plaintiff should not be sustained unless the court is able to say that, admitting every fact that is proven which is favorable to the plaintiff, and admitting every fact that the jury might fairly and logically infer from the evidence favorable to the plaintiff, still the plaintiff has failed to make out some one or more of the material facts of his case.” (Rowan v. Rosenthal, 113 Kan. 604, 215 Pac. 1008. See, also, Prewett v. Sholl, 120 Kan. 158, 242 Pac. 149.)
We are of opinion that the evidence, when given every fair inference to which it was entitled, was sufficient to require submission of the case to the jury.
The judgment is reversed, and the cause remanded for a new trial. | [
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|
The opinion of the court was delivered by
Stutzman, J.;
The State of Kansas appeals the Court of Appeals’ affirmation of the district court’s order dismissing the charges against Carlos E. Montes-Mata based on speedy trial violations. We affirm.
Factual and Procedural Background
Carlos Montes-Mata was arrested in October 2005 by a Kansas Highway Patrol trooper and was held in the Lyon County jail on drug-related charges. He did not post an appearance bond. The protracted procedural journey thereafter included a plea by Mon tes-Mata, a change of counsel, and the withdrawal of his plea. Subsequently, the district judge granted a motion to suppress, the State filed an interlocutory appeal from that suppression, and the Court of Appeals affirmed the action by the district judge. State v. Montes-Mata, No. 97,155, 2007 WL 959703 (Kan. App. 2007) (unpublished opinion).
Shortly after the mandate from the Court of Appeals was issued, Montes-Mata filed a motion to dismiss the charges against him for violation of his right to a speedy trial. The district judge held a hearing and granted the motion, dismissing the pending charges. The State appealed the dismissal, and the Court of Appeals affirmed the district judge’s ruling. State v. Montes-Mata, 41 Kan. App. 2d 1078, 208 P.3d 770 (2009). The State then petitioned for review on this issue of first impression.
The State’s appeal is not based on the calculation of the length of Montes-Mata’s incarceration. Counsel agreed that, excluding the time for the interlocutory appeal, Montes-Mata had been held for approximately 111 days when his motion to dismiss was heard. Instead, the appeal centers on the question of the effect, if any, to be given an immigration document sent to the jail while Montes-Mata was incarcerated.
During that 111-day period of incarceration, on February 6, 2006, the Lyon County Sheriff received a Form 1-247 from the Kansas City, Missouri, office of the United States Department of Homeland Security, Immigration and Customs Enforcement (ICE), titled “Immigration Detainer — Notice of Action.” The I-247 identified Montes-Mata by name, date of birth, and nationality, and declared: “Yorr are advised that the action noted below has been taken by the Immigration and Naturalization Service concerning the above-named inmate of your institution.” Below that statement, four possible actions were listed, as follows:
“□ Investigation has been initiated to determine whether this person is subject to removal from the United States.
□ A Notice to Appear or other charging document initiating removal proceedings, a copy of which is attached, was served on_(Date).
□ A warrant of arrest in removal proceedings, a copy of which is attached, was served on_(Date).
□ Deportation or removal from the United States has been ordered.”
In this case, only the first of those options was marked.
The form also stated that the originator requested that the recipient “Please accept this notice as a detainer,” and another box was marked stating that:
"Federal regulations (8 CFR 287.7) require that you detain the alien for a period not to exceed 48 hours (excluding Saturdays, Sundays and Federal holidays) to provide adequate time for ICE to assume custody of the alien.”
Additional facts will be added to the analysis as necessary.
Analysis
Standard of Review
Violation of the statutory right to speedy trial is a question of law. Our review, therefore, is de novo. State v. Adams, 283 Kan. 365, 368, 153 P.3d 512 (2007).
Discussion
K.S.A. 22-3402(1) states:
“If any person charged with a crime and held in jail solely by reason thereof shall not be brought to tnal within 90 days after such person’s arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (5).” (Emphasis added.)
The 111 days that Montes-Mata was held obviously exceeded the 90-day statutory speedy trial limit. The State contends, however, that when the sheriff received the Form 1-247 from the ICE, Montes-Mata no longer was being held “solely” on the Lyon County charges, thus tolling the 90-day requirement in K.S.A. 22-3402(1).
The effect of delivery of a Form 1-247 on a defendant’s speedy trial right was considered by the Supreme Court of Ohio in State v. Sanchez, 110 Ohio St. 3d 274, 853 N.E.2d 283 (2006). When felony charges are pending, the Ohio speedy trial statute requires a trial within 270 days of the date of arrest. If the defendant fails to post bond, a “triple-count” provision applies, with each day incarcerated counting as 3 days toward the speedy trial deadline. Ohio Rev. Code Ann. § 2945.71 (Lexis 2006). As with our explicit provision at K.S.A. 22-3402(1) tolling the 90-day speedy trial time when a defendant is not held solely on the pending charges, Ohio courts have held that its speedy trial statute becomes inapplicable when the incarcerated defendant has parole or probation holds lodged, so that the defendant is no longer held solely on the pending charges. See State v. Brown, 64 Ohio St. 3d 476, 597 N.E.2d 97 (1992); State v. Hubbard, 104 Ohio App. 3d 443, 662 N.E.2d 394 (1995). In Sanchez, neither the immigration detainer filed by the ICE nor its specific wording was part of the record. The Ohio Supreme Court, therefore, looked to federal regulations to determine the effect of that document and concluded that “a detainer filed by the ICE that does not purport to hold the defendant in custody does not nullify the triple-count provision within Ohio’s speedy-trial statute.’’ 110 Ohio St. 3d at 279.
Although helpful, the federal regulations governing immigration detainers are not necessary to our decision since the 1-247 is part of our record. It is worth noting, however, that although the various federal jurisdictions have not been in complete harmony, the predominant view has been that a defendant is not “in custody” in the sense necessary to support a petition for habeas corpus relief merely because he or she is the subject of a detainer from the ICE. See, e.g., Zolicoffer v. U.S. Dept. of Justice, 315 F.3d 538, 541 (5th Cir. 2003); Prieto v. Gluch, 913 F.2d 1159, 1164 (6th Cir. 1990); Campillo v. Sullivan, 853 F.2d 593, 595-96 (8th Cir. 1988). But see Vargas v. Swan, 854 F.2d 1028, 1032-33 (7th Cir.1988).
On its face, the Form 1-247 sent to the Lyon County Sheriff is not the equivalent of an outstanding warrant for probation revocation, parole violation, or new charges in another jurisdiction. Each of those represents a custodial claim on a defendant’s presence to adjudicate existing charges or allegations. The 1-247 sent to the Lyon County jail presented the interest of the ICE in clear terms, disclosing that an investigation “has been initiated” and that the ICE would like to know when the defendant was going to be released from custody in Lyon County. The ICE notice in this case is analogous to a call to a sheriff from a law enforcement agency in a neighboring county, expressing interest in one of his or her inmates and asking the sheriff for notice when the inmate is to be released. The request is for cooperation, not custody. It is not particularly helpful that the 1-247 form bears the heading “Immigration Detainer—Notice of Action” since, in this case, the “action” was inconsistent with the common custodial use of the term detainer.
The 1-247 sent to the Lyon County Sheriff by the ICE represented nothing more than information about the possibility of formal proceedings. Unless a communication from another agency or jurisdiction constitutes a present custodial claim on a defendant, it cannot affect the speedy trial question of whether the defendant is being held solely on pending charges. In this case, the State did not bring Montes-Mata to trial within the time required by K.S.A. 22-3402(1), and the district judge properly discharged him from further liability for trial on the crimes charged.
Affirmed.
Moritz, J., not participating.
David L. Stutzman, District Judge, assigned. | [
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|
The opinion of the court was delivered by
Malone, J.:
Jamil Fulton was convicted of first-degree murder in violation of K.S.A. 21-3401(a) and criminal possession of a fire arm in violation of K.S.A. 21-4304(a)(3). He received a hard 25 life sentence for the off-grid murder offense and a concurrent 8 months’ imprisonment for the criminal possession of a firearm conviction. We review the off-grid conviction on direct appeal pursuant to K.S.A. 22-3601(b)(l).
The issues on appeal, and our accompanying holdings, are as follows:
1. Was there sufficient evidence to convict Fulton? Yes.
2. Did the district court err in denying Fulton’s motion for a new trial? No.
3. Is Fulton entitled to a new trial because of his counsel’s failure to request that his trial be severed from his codefendant’s trial? No.
Facts
A jury convicted Jamil Fulton of the murder of Christopher Caraway. Caraway was a member of a subdivision of the Cripps gang. Fulton was a member of the Traveling Vice Lords gang.
On Saturday, July 16, 2005, Officer Charles Nadeau of the Topeka Police Department saw Caraway at a Mexican fiesta in the Oakland area of Topeka, Kansas. Several months earlier, Caraway had told Nadeau that he was leaving town because of a “bad deal that he had made.” At the fiesta, Nadeau asked Caraway why he was back in town. Caraway answered that he was just back in town over the weekend to visit family, that he had not resolved the earlier situation, and that some members of the Traveling Vice Lords gang were looking for him.
Later, at the fiesta, there was a run-in between Caraway’s friend, Antony Sullivan, and Antuan Harness. Sullivan told Harness that he wanted to fight him. A group of people gathered, including Fulton, Rashawn Anderson, and Caraway. Caraway also offered to fight; however, the police dispersed the group before a fight broke out.
On July 17, 2005, Caraway and his friend, Leonardo Martinez, were visiting Jasmine Phelps at the Highland Park Apartments in Topeka. Shortly before midnight, Caraway and Martinez left Phelps’ residence and were walking the short distance to Martinez’ residence when a group of people approached and started shooting at them. Martinez and Caraway ran in different directions in an attempt to flee the shooters. Martinez returned to the Phelps apartment and told Phelps and her little brother some of the people that Caraway saw at the fiesta were shooting at Caraway and him. Martinez, however, was never able to identify the shooters..
On the morning of July 18, Caraway was found dead in a parking lot near where Martinez and he had separated when the shooting began. He died of a single bullet wound to his back that was approximately 9 mm in size. Police marked multiple bullet holes and recovered bullet fragments and casings from the crime scene. In processing the crime scene, it was concluded that at least three different weapons were used in the shooting.
Several neighbors testified to the events surrounding the shooting. One neighbor, Latonya Boyd, explained that she did not see the shooters, but she heard multiple gunshots. Shortly after hearing the gunshots, she saw two cars, a red-colored one and a champagne-colored one, quickly leaving the area in the same direction. Another neighbor, Gaiy Johnson, stated his wife, Koren Johnson, woke him up because she heard gunshots. He ran to the front window and looked out onto the parking lot. He saw three black men chasing another black man, and two of the men were also shooting at the man being chased. He then saw all three men return, and the two shooters got into a red Pontiac Grand Am, while the third man got into a silver or grayish Dodge Stratus. The cars then left in the same direction. Gary Johnson further explained that he never saw the man who got into the Dodge Stratus fire a weapon, although Johnson heard gunfire before he looked out the window.
Koren Johnson testified that early Monday, July 18, around 12:45 to 1 a.m., she heard 6 to 10 popping noises. She thought the noises were gunshots. She got out of bed to look out her front window. She noticed four black men running in front of her apartment. She recognized Robert Patterson as the second person running by. She did not recognize any of the other men.
Other witnesses provided additional details. Tranice Nance was at the Highland Park Apartments partying with Fulton and others. She became drunk and high, and she then went to her car — a metallic gray Dodge Intrepid — to listen to music. While in the car, she heard gunfire. She scrunched down in the seat and then Fulton jumped into her car and said, “People are shooting, let’s go.” She then drove away.
Lindsay Wenniham was also in the neighborhood of the Highland Park Apartments at the time of the shooting. She owns a red Pontiac Grand Am. She was with her boyfriend, Lindsey Wallace, who was there to deal drugs to Fulton. Wenniham was sitting in the front passenger seat of her car when she heard gunshots. Soon after, Wallace jumped into the driver’s seat of her car and began backing out to leave, Anderson jumped into the car, and they drove away.
Wallace was the only individual who testified that he actually saw the shooting take place. Wallace testified that he was rolling a blunt with Fulton when he saw Caraway with another person. Someone yelled, “There’s Chris,” and people started shooting. According to Wallace, as Caraway ran off, Fulton, Harness, and Anderson chased after him. Fulton pulled out a gun and started shooting at Caraway. Wallace then jumped into Wenniham’s car, started it, and backed up to leave. As he was backing up, Anderson jumped into the car, and Wallace drove away. At the time that Wallace testified, he was facing drug charges. Wallace stated he was involved in on-going plea bargain negotiations for the drug charges and that he was testifying in hopes of receiving a plea bargain.
Two additional witnesses, Alonzo Lax and Ian Hudson, testified that they heard Fulton discussing the murder and taking credit for shooting Caraway. Lax testified that he was hanging out at a friend’s house when he overheard a conversation in which Fulton admitted to shooting Caraway. According to Lax, codefendant Robert Patterson, the other alleged shooter, was also there when Fulton said that he was one who shot Caraway. Lax was specifically asked on direct examination by the prosecutor if the codefendant “Robert Patterson agreed that Jamil Fulton was probably the one that did it?” Lax answered the question in the affirmative without any objection by either Patterson or Fulton.
Hudson testified that in December 2005, Fulton, he, and several other individuals were shooting dice at Kajun Jackson s house in Topeka. Hudson testified that there he overheard Fulton brag that he had shot Caraway in order to earn his gang stripes. Jackson, however, testified that no such conversation occurred. Both Hudson and Lax were testifying in order to receive favorable plea deals.
Fulton presented testimony that Hudson and Lax were committing perjury in order to receive favorable plea deals. Robert Green testified that Lax was going to testify that Fulton committed the crime even though Lax “didn’t know for sure” who committed the crime. Green further testified that Lax told him he was not present at the shooting and his testimony would be what “he’d hear from other people that Jamil did.” Further, Green testified that Hudson and Lax were together in the Shawnee County jail and spoke with each other to “make stories together that match.”
Fulton was convicted of first-degree murder and criminal possession of a firearm for the murder of Caraway. His motion for a new trial based on insufficient evidence was denied. Patterson, Fulton’s codefendant, was also charged with murder in the first degree, but the jury was unable to return a verdict on the charge against him.
Additional facts will be provided as necessary to the analysis.
Discussion
There was sufficient evidence to convict Fulton.
Fulton argues that the evidence was insufficient to convict him of first-degree murder.
Standard of Review
Our standard of review is well settled. In reviewing a challenge to the sufficiency of evidence
“we view [all] the evidence in a light most favorable to the prosecution to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. See State v. Vasquez, 287 Kan. 40, 59, 194 P.3d 563 (2008); State v. Saleem, 267 Kan. 100, 104, 977 P.2d 921 (1999). We do not weigh the evidence or reassess witness credibility. See Ives v. McGannon, 37 Kan. App. 2d 108, 124-25, 149 P.3d 880 (2007).” State v. Trussell, 289 Kan. 499, 503, 213 P.3d 1052 (2009).
Analysis
Fulton argues that there was insufficient evidence to convict him. First, Fulton contends that the witnesses, specifically Wallace, “lacked any credibility upon which a rational factfinder could rely . . . that Fulton [was involved].” Second, the defendant claims that there was no evidence that his gun fired the shot that struck Caraway. Finally, the defendant claims that there was no evidence that he aided or abetted. The State replies that Fulton is impermissibly asking this court to reweigh evidence.
Fulton argues that Wallace lacked credibility. However, Wallace’s credibility was front and center at the trial for the jury to evaluate. Wallace testified that he was providing testimony in hopes of leniency, but no deals were currently in place at the time of his testimony. Wallace’s hope of a plea deal was disclosed to the jury during his examination, and the trial judge properly instructed the jury that, in determining the weight and credit to be given to the testimony of each witness, it had the right to use common knowledge and experience in regard to that testimony. See PIK Crim. 3d 52.09.
Fulton was provided the “crucial” opportunity of inquiry into whether Wallace had made a deal with die State. See State v. Davis, 237 Kan. 155, 158, 697 P.2d 1321 (1985); see also State v. Sharp, 289 Kan. 72, 98, 210 P.3d 590 (2009) (recognizing the importance of “ ‘inquiry into whether the witness was offered any “arrangement or deal” by the State in exchange for his testimony’ ”). It is not the function of this court “to weigh conflicting evidence, to evaluate witnesses’ credibility, or to redetermine questions of fact.” State v. Johnson, 289 Kan. 870, 888, 218 P.3d 46 (2009). And Fulton cannot demonstrate that Wallace’s plea bargain negotiations rendered Wallace’s testimony incredible as a matter of law. Fulton’s argument is without merit.
Fulton next argues:
“There were no facts upon which a rational factfinder could have found that even if Fulton had fired a gun in the direction of Caraway that the gun he fired— out of many that were fired in Caraway’s direction — fired the shot that struck Caraway.”
The record on appeal does not support Fulton’s assertion. The State presented evidence that Caraway died from a 9 mm bullet. According to a prosecution witness, Fulton stated that he shot Caraway with a 9mm handgun. Again, we do not redetermine questions of fact. Johnson, 289 Kan. at 888.
Fulton’s final argument is there was no evidence that Fulton “aided or abetted any other shooter.” Fulton contends that he was a “mere associate” to the crime. The record on appeal, once again, does not support Fulton’s argument. An eyewitness testified he saw Fulton chasing and shooting at Caraway. Fulton presents no evidence as to how the facts of his case show that he was a “mere associate.”
Viewing the evidence in the light most favorable to prosecution, we conclude there was sufficient evidence to convict Fulton.
The district court did not err in denying Fulton’s motion for a new trial.
Fulton next contends that the district court erred in denying his motion for a new trial.
Standard of Review
Our standard of review of this issue is well established:
“The decision to grant or deny a motion for a new trial rests in the sound discretion of the district court. State v. Flynn, 274 Kan. 473, 513, 55 P.3d 324 (2002). Judicial discretion is abused only when no reasonable person would take the view of the district court. The party who asserts abuse of discretion bears the burden of showing it. See State v. Moses, 280 Kan. 939, 945, 127 P.3d 330 (2006). The abuse of discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions. State v. White, 279 Kan. 326, 332, 109 P.3d 1199 (2005).” State v. Stevens, 285 Kan. 307, 319, 172 P.3d 570 (2007).
Analysis
Fulton argues a new trial was warranted because (1) evidence was not available to Fulton concerning the full extent of tire benefits that Wallace, Lax, and Hudson received; (2) his trial counsel “did not present the full extent” of the evidence concerning Fulton’s absence from Kansas at the time Hudson testified that Fulton stated he committed the crime; and (3) evidence was not available to the extent that Wallace, Lax, and Hudson fabricated their stories.
On Fulton’s first point, Wallace, Lax, and Hudson all testified concerning their existing or pending plea bargains. As already mentioned, Fulton was provided the crucial opportunity to inquire whether the witnesses had any arrangements or deals with the State in exchange for their testimony. See Davis, 237 Kan. at 158. Fulton presents no argument as to what additional evidence the jury needed to hear regarding the potential plea-bargain benefits Wallace, Lax, and Hudson may have received.
Fulton argues in his second point that trial counsel erred because he “did not present the full extent” of possible evidence concerning Fulton’s absence from the state. Fulton argues that a new trial should have been granted so the evidence of his absence from the state could be introduced. At the hearing on the motion for a new trial, several witnesses testified Fulton was absent from the state during the time that Hudson supposedly overheard Fulton brag to Jackson that he had killed Caraway. It must be noted that these witnesses also testified that they were available to be called as witnesses during the trial. In addition, the jury heard the testimony of Jackson. Jackson not only denied Hudson’s claim that Fulton bragged to Jackson about killing Caraway; Jackson testified that Fulton never discussed with him the murder of Caraway. The truthfulness of Hudson’s testimony that he overheard Fulton brag about killing Caraway was challenged before the jury.
The test for determining whether a new trial is warranted on the ground of newly discovered evidence has two parts: (1) whether fhe defendant has met the burden of establishing that the newly proffered evidence could not, with reasonable diligence, have been produced at trial and (2) whether the evidence is of such materiality that it would be likely to produce a different result upon retrial. State v. Cook, 281 Kan. 961, 992, 135 P.3d 1147 (2006). Fulton’s argument fails each part of this test. The witnesses who would testify about Fulton’s absence from the state were available to be called at Fulton’s trial. Also, given the denial by Jackson thatFulton made these incriminating statements, the evidence would not have been new evidence that Hudson’s testimony was not credible.
Finally, Fulton argues his motion for a new trial should have been granted since new evidence came to light revealing that the witnesses Wallace, Lax, and Hudson fabricated their testimony. However, at the motion for a new trial, the district court appropriately noted that the testimony largely consisted of people testifying that “other people testified falsely at trial.” The district court considered the testimony and found most of it was rooted in hearsay and was not credible. Importantly, the district court considered Lax’s recantation and found it not to be credible. As to Green’s testimony that Wallace, Lax, and Hudson were fabricating the story, the district court noted that the jury heard the same testimony at trial and rejected it.
The trial judge conducted a full hearing on Fulton’s motion for a new trial. In a thorough and well-delivered opinion, the judge appropriately weighed die evidence and determined the credibility of the witnesses testifying at the motion for new trial. The district court did not abuse its discretion in denying the defendant’s motion for a new trial. See State v. Green, 211 Kan. 887, Syl. ¶¶ 2, 5, 508 P.2d 883 (1973) (holding in a first-degree murder case that the district court did not abuse its discretion in denying a motion for a new trial based on a State’s material witness’ recantation and stating where a new trial is sought on the basis of the recanting testimony of a prosecution witness, the weight to be given such testimony is for the trial judge to determine.
Fulton has failed to show that the district court abused its discretion in denying a new trial.
Fulton is not entitled to a new trial because of his counsel’s failure to request that his trial be severed from his codefendant’s trial.
Fulton argues that his counsel should have moved the district court to sever his trial from the trial of codefendant Patterson. He alleges that severing was necessary because Lax testified that Patterson agreed with Fulton’s statement that Fulton was probably the one who fired the bullet that killed Caraway. Fulton relies on Bruton v. United States, 391 U.S. 123, 137, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). In Bruton, the Supreme Court held that admission of a codefendant’s confession that implicated the defend ant at joint trial constituted prejudicial error even though the trial court gave a Hmiting instruction. Bruton, 391 U.S. at 137 (“Despite the concededly clear instructions to the jury to disregard Evans’ inadmissible hearsay evidence inculpating [the defendant], in the context of a joint trial we cannot accept limiting instructions as an adequate substitute for [the defendant’s] constitutional right of cross-examination.”).
Fulton’s situation is distinguishable because the alleged error occurred when Lax testified that the codefendant agreed with Fulton’s statement that Fulton was the shooter. Additionally and more importantly, Fulton is not alleging that the district court erred in admitting Lax’s statement into evidence. Instead, Fulton alleges that his counsel was negligent because he failed “to request a separate trial [and therefore] fell below the standard of a reasonable attorney.” Fulton is presenting an ineffective assistance of counsel argument for the first time on appeal because no motion to sever the joint trial was filed.
Ineffective assistance of counsel claims cannot generally be raised for the first time on appeal. See Trotter v. State, 288 Kan. 112, 127-28, 200 P.3d 1236 (2009). In Trotter, we elaborated:
“On several occasions, we have considered whether the exceptions relating to ineffective assistance of counsel can be applied when raised for the first time on appeal, and, as a general rale, we have concluded the exception cannot be applied. See, e.g., State v. Gleason, 277 Kan. 624, Syl. ¶ 5, 88 P.3d 218 (2004). Rather, we have generally determined a district court must consider the evidence to determine the two-prong test for establishing ineffective assistance of counsel, which requires a defendant to ‘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) [defendant] was prejudiced to the extent that there [was] a reasonable probability [of success], but for counsel’s deficient performance.” [Citations omitted.]’ State v. Smith, 278 Kan. 45, 51-52, 92 P.3d 1096 (2004); see Bledsoe, 283 Kan. at 90-91. In most cases, we would remand to the district court for an evidentiary hearing on at least the first prong of the ineffective assistance of counsel standard. See, e.g., Lujan v. State, 270 Kan. 163, 14 P.3d 424 (2000); State v. Van Cleave, 239 Kan. 117, 119-21, 716 P.2d 580 (1986).
“We have rarely found an exception to the general rule that an ineffective assistance of counsel claim should be first considered by the district court, but did so on at least one occasion in Laymon v. State, 280 Kan. 430, 444, 122 P.3d 326 (2005), under circumstances we recently labeled ‘extraordinary.’ State v. Swisher, 281 Kan. 447, 450, 132 P.3d 1274 (2006). In our decision in Layman, we held that the two prongs of ineffective assistance—deficient performance by counsel and prejudice as a result of the deficiency—were demonstrated as a matter of law by the appellate record and, therefore, remand to the district court was not necessary.” 288 Kan. at 127-28.
Fulton points to no set of facts that would make this situation “extraordinary,” and prejudice is not apparent “as a matter of law by the appellate record.” See 288 Kan. at 128. Therefore, this issue is not appropriately before us. See State v. Gleason, 277 Kan. 624, 647, 88 P.3d 218 (2004) (“This specific allegation of ineffective assistance of counsel was not preserved at the district court, either at trial or the September 5 [posttrial motions] hearing. It cannot be considered now.”).
Affirmed.
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The opinion of the court was delivered by
Beier, J.:
Defendant Ho K. Duong was charged with aggravated indecent liberties with a child, and his first trial ended with a hung jury. Duong was convicted by the jury at his second trial, and the district judge departed from Jessica’s Law and sentenced him to 61 months in prison and lifetime postrelease supervision with lifetime electronic monitoring. On this direct appeal, Duong asserts four trial errors and one sentencing error: (1) The prosecutor’s comments in closing argument denied him a fair trial; (2) the district judge erred by failing to give the jury an eyewitness identification instruction; (3) the district judge erred by giving the jury an erroneous Allen-type instruction; (4) cumulative errors denied him his right to a fair trial; and (5) the journal entry of judgment was in error because of its provision for lifetime electronic monitoring.
We affirm Duong’s conviction and vacate the electronic monitoring portion of his sentence.
Factual and Procedural History
S.S. took her two children, 6-year-old A.C. and his 10-year-old sister, to the Wichita public library. Upon their arrival, the three used the public restrooms on the third floor. A.C. went into the men’s restroom alone.
A.C. would testify later to the following: There was no one else in the restroom when he entered it. A.C. walked up to a urinal and pulled his pants half-way down to urinate. While A.C. was urinating, a man entered the restroom and stood at the urinal next to A.C. A.C. testified that the man reached over and used both of his hands to “wiggle” A.C.’s penis. A.C. eventually pulled the man’s hands away, pulled up his pants, and left the restroom. No one else had entered the restroom during the incident.
A.C.’s mother was waiting for him when he emerged from the restroom. She noticed that A.C. looked “kind of shaken,” and he immediately told her that a man had touched him in the restroom. After further inquiry, A.C. said that the man had grabbed his “private.”
Jessica Gagnon was working that day in the nearby children’s reading room, and she heard A.C. tell his mother about the man in the restroom. S.S. asked Gagnon to call for security, and Gagnon complied. After making the call, Gagnon stood with A.C. and S.S. near a staircase outside the restroom. While Gagnon was there, defendant Duong exited the men’s restroom, and A.C. immediately-said, “That’s him.” S.S. told Duong to stop. Duong complied.
Library Security officer Winthrop Stanley arrived at the scene, and Gagnon returned to her post in the children’s reading room. She had not seen anyone other than Duong exit the men’s restroom during the time she stood with A.C. and S.S.
A.C. told Stanley what had happened, and Stanley called for a police officer to come to the library. After collecting identification from S.S. and Duong, Stanley took them and A.C. downstairs to wait for tire police. At that point, Stanley had not seen anyone else exit the men’s restroom, but he did not check whether anyone else was still inside it.
Wichita Police Officer Nathan Toman was one of the officers dispatched to the library. Toman did check the inside of the men’s restroom, but he did not do so until 20 to 40 minutes after Stanley arrived at the scene. Toman found no one else inside the restroom.
Wichita Police Sergeant Kelly Mar interviewed both A.C. and Duong shortly after the incident was reported. During his interview, Duong initially stated that nobody else was in the restroom when he first entered. Duong repeatedly said he did not even notice the little boy. More than three-quarters of the way into Duong’s interview with Mar, he changed his account, claiming that “many people” were in the restroom. Specifically, he said that there were two or three other men in the restroom, but he was unable to give a description of any of them. Duong also claimed that the men were still in the restroom when he left it.
The centerpiece of Duong’s defense at trial was misidentification. The jury heard that Mar had asked A.C., “If you saw this man would [you] recognize him?” and A.C. had replied, “Probably.” A.C. told Mar that the man was not wearing anything on his head. At trial, he did not remember if the man had a hat. A.C.’s description of the color of the man’s shirt also varied slightly, from “red” to “light red” to “reddish-pinkish.” Gagnon testified at trial that Duong was wearing a “funny” newsboy cap and a bright pink or fuchsia shirt.
Duong did not seek and the district judge did not give the jury a cautionary eyewitness instruction, as set out in PIK Crim. 3d 52.20. The district judge did give an Allen-type instruction, as set out in PIK Crim. 3d 68.12.
During closing argument, the prosecutor made the following statements without a defense objection:
“The facts surrounding the disclosure of this abuse lend to the credibility of State’s theory of this case. [A.C.] told right away, he told immediately, the immediacy of his disclosure only adds to [A.C.’s] credibility. He came right out of that bathroom and he said mom, that guy in there tried to touch me. It’s so credible because of that.
“So look at yourselves, you are a combination of men and women of different ages and different occupations and some of you have kids of your own or siblings that you’re taking care of, how do you — how do you analyze the credibility of the stuff that people tell you every single day in your lives? ... You use your common sense in how you evaluate [A.C.’s credibility] and I suggest that he is credible.
“Why is he credible? Because of consistency, corroboration, and this child has no motive, there is such a lack of motive for this kid to falsify or distort. This is a stranger case. This isn’t a sexual abuse allegation arising out of a child custody scenario, where two people are getting divorced or anything like that. There’s no ill will here on the part of this kid or even on the part of [A.C.’s] family to make this thing up against this guy. He’s an absolute stranger to their family, there’s no motive on [A.C.’s] part to make this up.
“[A.C.] is consistent. He has never wavered on whether or not he was touched in the bathroom. Yeah, he says to his mom that guy tried to touch me in there, but think about it, how does a child communicate that first disclosure and then when you have a detailed interview of the child, he is absolutely consistent that he was actually touched on his penis .... He has never wavered on his identify of the person that did this to him.
“What about, you know, you talk about [A.C.’s credibility], talk about — talk about the defendant’s credibility. His undulating statement at the early part of the interview. Did you see a boy in that bathroom? No boy at all. He didn’t see any boy. You know, it’s deny, deny, deny, deny, until maybe three-quarters or maybe even little further into the interview and it’s just like on TV, you know, the detective presses to get clarity, do you think that this detective was overreaching with this defendant in an unfair way?
“You know, he starts talking about Jesus Christ and so forth. And [Detective Kelly Mar] says well, that’s great, but you know what Mr. defendant, I have had Christians in here who have also molested children, why do I have this child telling me this. You know, let’s get to the point here separate and apart from what your interpretation is, what happened in the bathroom? Why is this child telling me that he was touched? So he — falls apart. When confronted with the stark difference, the child is firm that he was touched and the defendant’s stark denial, tiren he begins to fall apart.
“I didn’t know, I didn’t know what the problem was, I didn’t know, I didn’t know. Ladies and Gendemen, he knew, he knew as soon as he came out of the bathroom door, [A.C.] was right there and says that’s him, tíiat’s the man that tried to touch me or tirat’s the man that touched me. He knew as soon as he came out of the bathroom door what this case was about and what he was going to be confronted with.
‘Where are these many, many people who were in and out of the public bathroom that day? Or can you give us any information on the two to three other men who were in the bathroom that day? The officers were — and the family were [sic] right outside tiiat bathroom door for five to [ten] minutes. Nobody else exited, folies. It is him. [A.C.’s] always described the touching in the same way.
“You know, there were many people in the bathroom, in and out, in and out, it was two or three men. Tell us about these men, give a description. He is unable to give a description. You know, to play the whole interview for you is so helpful because you get a good grip on the quality of his ability to understand English, the quality of his ability to — to communicate in question and answer form. Yes, English is not his native language. Yes, he has an accent. But under the circumstances of what you’ve got here, don’t you find, folks, that English is not the problem, but his credibility is?
“. . . Think about the circumstances, taking advantage of this little boy in a badiroom, where there’s nobody else watching. The sexual intent comes from him. The sexual intent comes from what he did to the child, in the place that he did it, under the circumstances of where he did it. It was — you know, it is — -the facts are compelling because this is such a breach of trust, because this was a public place.
“And there is no alternative theory of innocent touching, such as was the child so young, like in pull-ups or something, and he was just trying to help [A.C.] pee. No. Intentional means willful and purposeful and not accidental. Determine intent from all the facts of the case. And we’ve talked about this, you know, [A.C.], unfortunately, was vulnerable, he was exposed, his penis was already out when this began.”
Prosecutorial Misconduct
We analyze allegations of prosecutorial misconduct in two steps.
“ ‘First, the appellate court must determine whether the comments were outside the wide latitude allowed in discussing the evidence. Second, the appellate court must decide whether those comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial, thereby requiring reversal.’ ” State v. Richmond, 289 Kan. 419, 439, 212 P.3d 165 (2009) (quoting State v. White, 284 Kan. 333, Syl. ¶ 1, 161 P.3d 208 [2007]).
See also State v. Tosh, 278 Kan. 83, 85, 91 P.3d 1204 (2004).
The second step has required us to consider three additional factors:
“ ‘(1) whether the misconduct is gross and flagrant; (2) whether the misconduct shows ill will on the prosecutor’s part; and (3) whether the evidence against the defendant is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors. None of these three factors is individually controlling. Before the third factor can ever override the first two factors, an appellate court must be able to say that the harmlessness tests of both K.S.A. 60-261 (inconsistent with substantial justice) and Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967) (conclusion beyond reasonable doubt that the error had little, if any, likelihood of having changed the results of the trial), have been met.’ ” Richmond, 289 Kan. at 440 (quoting State v. Bryant, 285 Kan. 970, Syl. ¶ 2, 179 P.3d 1122 [2008]).
See also State v. Tosh, 278 Kan. 83, 93, 91 P.3d 1204 (2004) (second step essentially directed to whether misconduct so prejudicial that it denied fair trial).
In addition, we have required a reviewing court to analyze the facts of each case to determine whether a prosecutor’s statements denied the defendant a fair trial. Tosh, 278 Kan. at 85. A defendant is not required to make a contemporaneous objection to prosecutorial misconduct during closing argument to preserve the issue for appeal. State v. Stone, 291 Kan. 13, 17, 237 P.3d 1229 (2010).
Our recent decision in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), synthesized and clarified our caselaw on definition and application of harmless error standards, including the two we have relied upon in the second step of our analysis of prosecutorial misconduct claims. Because we conclude, as discussed below, that we need not reach the question of plain error in this case, we need not address the changes wrought by Ward or address any questions it leaves open.
Duong alleges that the prosecutor in this case committed misconduct during closing argument in three ways: By improperly bolstering the credibility of the victim and criticizing the credibility of tire defendant; by improperly shifting the burden of proof to the defendant; and by inflaming the passions or prejudices of jurors by appealing to their fear of sex predators. We address each allegation in turn below.
Comments on Credibility
Duong alleges that, during closing arguments, the prosecutor improperly commented on both the victim’s and defendant’s credibility and accused the defendant of lying.
Generally, prosecutors cannot offer juries their personal opinions on the credibility of witnesses. State v. Stone, 291 Kan. 13, 19, 237 P.3d 1229 (2010). We prohibit the prosecutor from expressing personal opinions on the credibility of a witness because such comments are “unsworn, unchecked testimony, not commentary on the evidence of the case.” State v. Pabst, 268 Kan. 501, 510, 996 P.2d 321 (2000). We also have held that accusing a defendant of lying is outside the wide rhetorical latitude afforded prosecutors in closing argument. State v. Davis, 275 Kan. 107, 121, 61 P.3d 701 (2003).
On the other hand, we permit lawyers to make statements during closing arguments that draw reasonable inferences from the evidence. Stone, 291 Kan. at 19. Specifically, prosecutors may explain “ To juries what they should look for in assessing witness credibility, especially when the defense has attacked the credibility of the State’s witnesses.’ ” Stone, 291 Kan. at 19 (citing State v. Scaife, 286 Kan. 614, 623-24, 186 P.3d 775 [2008]). We recognize that it is proper for a prosecutor to assert “reasonable inferences based on the evidence and that, when a case turns on which of two conflicting stories is true, certain testimony is not believable.” Davis, 275 Kan. at 121. Nevertheless, the jury must be left to draw the ultimate conclusion regarding the credibility of a witness. 275 Kan. at 121.
In Davis, the defendant challenged three statements by the prosecutor. First, the prosecutor argued that the victim’s statements were more credible than the defendant’s because the victim made his statements while in an emotional state to a police officer, and the defendant made his statements after 10 months “with plenty of time for reflection and creation.” 275 Kan. at 122. Second, the prosecutor argued that the evidence indicated that the victim “should be believed.” 275 Kan. at 122. Finally, the prosecutor claimed that the defendant’s allegation drat the victim “set this whole thing up” was not believable. 275 Kan. at 123. This court held that the prosecutor was within the latitude afforded to the State during closing argument because the prosecutor “stated reasonable inferences based on the evidence,” and the statements did not constitute vouching for the victim’s credibility. 275 Kan. at 122-23.
Conversely, in State v. Magallanez, 290 Kan. 906, 235 P.3d 460 (2010), we held that there was prosecutorial misconduct when the statements made were not based on any reasonable inference from the evidence. In that case, the prosecutor had told the jury that “you trust children until you have a reason not to. We assume that. We assume we have taught them correctly.” 290 Kan. at 912. This amounted to unsworn testimony about the truthfulness of children. 290 Kan. at 914.
We do not view a prosecutor’s statement in isolation but in context. See Stone, 291 Kan. at 19-20. In Stone, the prosecutor had said, “A.L. told [the juiy] what happened,” and, “She is a credible witness.” Stone, 291 Kan. at 19. We observed: “[Tjhese comments were the brackets around an argument that detailed for the juiy the factors that it could and should consider in determining the credibility of the witness.” 291 Kan. at 19. With this broader view, we held that the prosecutor’s statements were within the latitude afforded the State. We saw them as attempts to summarize the conclusion the prosecutor wanted the jury to reach from the evidence rather than expressions of the prosecutor’s own judgment on the credibility of the witness. 291 Kan. at 20.
With these cases as our foundation, we hold here that the prosecutor’s statements about A.C.’s and Duong’s credibility were within proper bounds. The prosecutor drew reasonable inferences based on the evidence presented at trial and merely directed the jury to specific testimony. For example, with regard to A.C., the prosecutor reminded the jury that A.C. disclosed his experience in the restroom immediately, that A.C. identified Duong immediately and consistently, and that Duong was a complete stranger. On Duong’s credibility, the prosecutor pointed out that Duong first said that no one else was in the restroom and then changed his story. The prosecutor did not accuse Duong of lying but referenced evidence that rebutted Duong’s statements to Mar. Each of the prosecutor’s remarks fit within the context of an overarching evidence-based argument that A.C.’s story was more believable than Duong’s.
Burden Shifting
Duong also alleges that the prosecutor improperly shifted the burden of proof to the defense by questioning Duong’s failure to present evidence of misidentification.
Kansas courts deem it “improper for the prosecutor to attempt to shift the burden of proof to the defendant or to misstate the legal standard of the burden of proof.” Stone, 291 Kan. at 18 (citing Tosh, 278 Kan. at 89-92). But we grant prosecutors considerable latitude to address the weaknesses of the defense. Stone, 291 Kan. at 18 (citing State v. Burden, 30 Kan. App. 2d 690, 703, 46 P.3d 570 [2002], rev’d on other grounds 275 Kan. 934, 69 P.3d 1120 [2003]).
In Tosh, a rape case, the prosecutor asked rhetorically during closing: “ ‘[I]s there any evidence that it didn’t happen? Is there any evidence that the things she told you didn’t happen?’ ” Tosh, 278 Kan. at 90. We held that posing these questions constituted an impermissible attempt to shift the burden of proof to the defendant. 278 Kan. at 92.
In Stone, we discussed the Court of Appeals’ decision in Burden, 30 Kan. App. 2d 690. Stone, 291 Kan. at 18. There, the prosecutor had said, “ ‘[T]he most overwhelming thing that the defense cannot overcome in this case is the physical evidence that corroborates [the victim’s] initial statements.’ ” Burden, 30 Kan. App. 2d at 703. The Court of Appeals held that the prosecutor’s argument, while inartful, did not attempt to shift the burden of proof to the de fendant. 30 Kan. App. 2d at 703. The court noted that the district judge had properly instructed the jury on the burden of proof and that the statements merely commented on the weaknesses of the defense. 30 Kan. App. 2d at 703.
Likewise, in this case, we read the statements at issue as mere comment on the weakness of Duong’s defense. Duong wanted the jury to believe that there were several men in the bathroom with him and A.C. and that one of the other men was the perpetrator of the crime. The prosecutor’s references to Duong’s inability to give a description of the other men and to the fact that no one saw any other man leave the restroom were fair game. The prosecutor did not, as in Tosh, call upon the defense to disprove the occurrence of a crime; the prosecutor only pointed out that the evidence supporting the defense theory-of the case was thin. We are further reassured that, as in Stone, Duong’s- jury was properly instructed on the State’s burden to prove guilt beyond a reasonable doubt.
Inflaming Passion or Prejudice
Duong’s last challenge to the prosecutor’s closing argument focuses on her discussion of the intent required for aggravated indecent liberties. In particular, Duong takes issue with the prosecutor’s use of the words “exposed, “litde boy,” taken “advantage of,” in a “public place,” and a “breach of trust” in the following passage:
“Think about the circumstances, taking advantage of this little boy in a bathroom, where there’s nobody else watching. The sexual intent comes from him. The sexual intent comes from what he did to the child, in the place that he did it, under the circumstances of where he did it. It was — you Know, it is — the facts are compelling because this is such a breach of trust, because this was a public place.
“And there is no alternative theory of innocent touching, such as was the child so young, like in pull-ups or something, and he was just trying to help [A.C.] pee. No. Intentional means willful and purposeful and not accidental. Determine intent from all the facts of the case. And we’ve talked about this, you know, [A.C.], unfortunately, was vulnerable, he was exposed, his penis was already out when this began.”
It is improper for a prosecutor to make statements during closing argument “intended to inflame the passions or prejudices of the jury or to divert the jury from its duty to decide the case based on the evidence and the controlling law.” Tosh, 278 Kan. at 90. A prosecutor has a duty to “ensure only competent evidence is submitted to the jury and avoid arguments that could prejudice the jurors’ minds, preventing them from deciding the case on the evidence.” State v. Martinez, 290 Kan. 992, 1015, 236 P.3d 481 (2010) (citing State v. Ruff, 252 Kan. 625, 636, 847 P.3d 1258 [1993]).
Duong cites nothing to support his position that the use of these particular words or phrases was intended to inflame the passions or prejudices of jurors. Of course, we generally view comments on issues outside the evidence presented as improper. See Tosh, 278 Kan. at 90 (prosecutor’s comment that victim raped second time by credibility attack at trial improper); State v. Henry, 273 Kan. 608, 621, 44 P.3d 466 (2002) (prosecutor’s comment encouraging jury to think about Mother’s Day, feelings of victim’s mother improper). And, in other cases involving sex crimes perpetrated against children, we have deemed it error for a prosecutor to appeal to parental instincts or urge the jury to protect the victim. Martinez, 290 Kan. at 1015 (“[let the victim] know ‘she did the right thing’ [by reporting the crime]” improper); Tosh, 278 Kan. at 92 (“When [the victim] was little, and even today, her father failed to protect her. He raped her. You can protect her. You can find him guilty” improper).
We reject Duong’s claim that the selected language was intended to inflame the passions or prejudices of the jury and are exceedingly skeptical that it could have done so. Rather, the comments were closely tied to the admitted evidence in this case and were designed to address opportunity and motive. They illustrated, for example, how circumstantial evidence could be probative on the element of intent. Whatever embellishments the prosecutor added were tame. She stated only the obvious when she observed that fondling of a 6-year-old child in a public bathroom is a breach of trust that tears at our social fabric. Neither this remark nor the others Duong stresses were equivalent to improper, highly emotional pleading for parental protection of this victim or potential future victims.
Conclusion
Duong has not persuaded us that any of his criticisms of the prosecutors statements in closing argument resulted in error. Lacking error, we need not move to the second step we employ in analysis of a claim of prosecutorial misconduct, i.e., evaluation of whether any error is harmless.
Eyewitness Identification Instruction
Duong’s second claim on this appeal asserts error in the district judge’s omission of a cautionary jury instruction on eyewitness identification pursuant to PIK Crim. 3d 52.20. This instruction reads:
“The law places the burden upon the State to identify the defendant. The law does not require the defendant to prove (he)(she) has been wrongfully identified. In weighing the reliability of eyewitness identification testimony, you should first determine whether any of the following factors existed and, if so, the extent to which they would affect accuracy of identification by an eyewitness. Factors you may consider are:
“1. The opportunity the witness had to observe. This includes any physical condition which could affect the ability of the witness to observe, the length of tire time of observation, and any limitations on the observation like an obstruction or poor fighting;
“2. The emotional state of the witness at the time including that which might be caused by the use of a weapon or a threat of violence;
“3. Whether the witness had observed the defendant(s) on earlier occasions;
“4. Whether a significant amount of time elapsed between the crime charged and any later identification;
“5. Whether the witness ever failed to identify the defendant(s) or made any inconsistent identification;
“6. The degree of certainty demonstrated by the witness at the time of any identification of the accused; and
“7. Whether there are any other circumstances that may have affected the accuracy of the eyewitness identification.” PIK Crim. 3d 52.20.
At trial, Duong neither requested the instruction nor objected to its omission. He therefore cannot obtain reversal on this ground unless the judge’s failure to give the instruction was clearly erroneous. K.S.A. 22-3414(3); State v. Mann, 274 Kan. 670, 677, 56 P.3d 212 (2002). We must be “firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.” 274 Kan. at 677.
District courts should give the eyewitness cautionary instruction “in any criminal action in which eyewitness identification is a critical part of the prosecution’s case and there is serious question about the reliability of the identification.” 274 Kan. at 677; PIK Crim. 3d 52.20 (Notes on Use). Evidence calling reliability into question is key. See State v. Harris, 266 Kan. 270, 278, 970 P.2d 519 (1998). We consider five factors in determining whether there is a question about the reliability of eyewitness identification, as set forth in State v. Saenz, 271 Kan. 339, 354, 22 P.3d 151 (2001):
“(1) the opportunity of the witness to view the defendant at the time of the crime, (2) the witness’ degree of attention, (3) the accuracy of the witness’ prior descriptions of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation.”
Duong argues that A.C.’s identification of him was the principal issue in this case and that, without the cautionary eyewitness instruction, the jury lacked the tools necessary to evaluate the identification. He cites State v. Simpson, 29 Kan. App. 2d 862, 32 P.3d 1226 (2001), to support his claim.
Simpson involved an eyewitness who saw the suspect for the first time for only 60 seconds in a dimly lit kitchen during a drug bust. In addition, the witness’ view of the suspect’s face was obstructed by a cell phone. The suspect had numerous gold teeth, which the eyewitness did not see. And the drug bust setting may have meant that the witness was nervous at the time she had contact with the suspect. In these circumstances, a panel of our Court of Appeals held that the cautionary eyewitness instruction was indispensable. 29 Kan. App. 2d at 881. Had the district judge given the instruction, there was a real possibility that the jury would have returned a different verdict. 29 Kan. App. 2d at 881.
We came to an opposite conclusion in State v. Richmond, 258 Kan. 449, 904 P.2d 974 (1995), in which we held that the cautionary eyewitness identification instruction was unwarranted because the reliability of the eyewitness identification was not seriously in question. In that case, the eyewitness testified that she saw the defendant clearly and had six opportunities to observe the defendant. We also considered additional evidence against the defendant significant, concluding that there was no real possibility the jury would have rendered a different verdict if the court had given the eyewitness instruction. 258 Kan. at 457.
Duong insists that A.C.’s identification of him was so shaky that this case is far closer to Simpson than Richmond. We disagree. It is true that the State’s evidence had a glaring weakness here — the failure of the security officer and the police to check the men’s restroom for 20 to 40 minutes — but it was not A.C.’s immediate identification of Duong, unprompted by anything other than Duong’s exit from the restroom. A.C. also consistently said that he and the man who touched him were alone in the restroom at the time. The man stood next to him at the urinals and then fondled his penis with both hands. Even though, as Duong argues, A.C. said on cross-examination that he only looked a “little bit” up at the man who touched him, it is apparent from A.C.’s description of the event that he had ample time to observe and had an unobstructed view. On these facts, the reliability of A.C.’s identification was not seriously in question; and the cautionary eyewitness instruction certainly was not indispensable.
We also are confident that, if the instruction had been given, it would not have made an acquittal of Duong likely, i.e., “a real possibility” under our clearly erroneous standard of review. Indeed, the instruction both giveth and taketh away. A.C.’s instant report of the touching and his spontaneous and immediate identification of the perpetrator were among the factors on the instruction’s fist that would have cut persuasively in the State’s favor. We see no similarly convincing factors on Duong’s side of the case.
The district judge’s omission of the cautionaiy eyewitness instruction was not clearly erroneous, and Duong is not entitled to reversal on that basis.
Allen-type Instruction
Duong next argues that the district judge erred by giving the following jury instruction:
“Like all cases, this is an important case. If you fail to reach a decision on some or all of the charges, that the charge or charges are left undecided for the time being. It is then up to die state to decide whether to resubmit the undecided charge(s) to a different jury at a later time. Another trial would he a burden to both sides.
“This does not mean that those favoring any particular position should surrender their honest convictions as to the weight or effect of any evidence solely because of the opinion of other jurors or because of the importance of arriving at a decision.
“This does mean that you should give respectful consideration to each other’s views and talk over and differences of opinion in a spirit of fairness and candor. If at all possible, you should resolve any differences and come to a common conclusion.
“You may be as leisurely in your deliberations as the occasion may require and take all the time you feel necessary.” (Emphasis added.)
This instruction, PIK Crim. 3d 68.12, is commonly referred to as an Allen or Allen-type instruction, after Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896). Historically this court has allowed the instruction when given before jury deliberations began. See State v. Anthony, 282 Kan. 201, 216, 145 P.3d 1 (2006); State v. Makthepharak, 276 Kan. 563, 569, 78 P.3d 412 (2003).
In particular, however, Duong challenges the instruction’s inclusion of the language “[a]nother trial would be a burden on both sides,” which he regards as coercive, legally incorrect, and in conflict with another typical instruction, given here, which tells jurors not to concern themselves with anything beyond their determination of the defendant’s guilt or innocence. See PIK Crim. 3d 51.10.
We have specifically addressed this language in several recent cases, filed since Duong’s second trial, holding that the language was error because it was misleading and inaccurate. But we have not gone so far as to hold it clearly erroneous. See State v. Brown, 291 Kan. 646, 660, 244 P.3d 267 (2011); State v. Colston, 290 Kan. 952, 977-78, 235 P.3d 1234 (2010); State v. Ellmaker, 289 Kan. 1132, 1146, 221 P.3d 1105 (2009); State v. Salts, 288 Kan. 263, 266-67, 200 P.3d 464 (2009).
Our first question thus becomes whether the clearly erroneous standard applies to this case. As discussed, this court’s review is governed by the standard when a party has failed to object to an instruction’s inclusion or omission in the district court. See K.S.A 22-3414(3); Ellmaker, 289 Kan. at 1145. The objection must be timely and specific. See Puckett v. Mt. Carmel Regional Med. Center, 290 Kan. 406, Syl. ¶ 2, 228 P.3d 1048 (2010). To reverse, we must be convinced that “there is a real possibility the juiy would have rendered a different verdict if the error had not occurred.” Salts, 288 Kan. at 265-66.
If, instead, a party objected to an instruction before the district court, an appellate court applies a less demanding standard of review, considering whether the instructions as a whole properly and fairly stated the law as applied to the facts of the case and whether they could have misled the jury. See State v. Pruitt, 42 Kan. App. 2d 166, 175, 211 P.3d 166 (2009); State v. Page, 41 Kan. App. 2d 584, 586, 203 P.3d 1277 (2009).
Here, during the jury instructions conference, Duong’s attorney stated only: “Just for the record, [the defense] would object to the instruction, I believe it’s number two, commonly known as the Allen instruction and wanted to get that on the record.” The State contends that this vague statement was inadequate for Duong to escape the clearly erroneous standard of review on appeal.
We agree with the State. Although Duong’s objection to the Allen-type instruction was timely, it was not specific. The district judge had no way of knowing that he needed to focus on the “burden” language eventually held to be misleading and erroneous in our Salts decision.
Application of the clearly erroneous standard of review dooms Duong’s challenge to his conviction on this issue. We see no sign in the record on appeal that Duong’s second jury was aware that his first jury had hung. Such awareness might have heightened any coercive effect of the “burden” language, at least marginally. We also perceive no other reason to depart from our conclusion in Salts that the “burden” language was erroneous but not clearly so. See Salts, 288 Kan. at 267. In our view, there is no real possibility that the outcome of Duong’s second trial would have been different if the “burden” language had been omitted from the jury instructions. If we are not convinced on that point, no reversal is warranted.
Cumulative Error
Duong also invokes the cumulative error rule, which permits us to aggregate the prejudicial effect of more than one otherwise non-reversible error to grant a criminal defendant relief. See State v. Cosby, 285 Kan. 230, 250, 169 P.3d 1128 (2007) (citing State v. Anthony, 282 Kan. 201, 216-17, 145 P.3d 1 [2006]). The rule is not applicable when only one error has been identified, see State v. Nguyen, 285 Kan. 418, 436, 172 P.3d 1165 (2007), such as the inclusion of the “burden” language in the Allen-type instruction.
Lifetime Electronic Monitoring
The journal entry of judgment in Duong’s case ordered lifetime electronic monitoring after his release from prison. Duong argues that there is no statutory authority for a sentencing judge to impose such monitoring, and the State concedes this issue.
We have unlimited review over issues of statutory interpretation. See State v. Bello, 289 Kan. 191, 195-96, 211 P.3d 139 (2009).
Under K.S.A. 22-3717(u) and our decision in State v. Jolly, 291 Kan. 842, 847-48, 249 P.3d 421 (2011), the parties are correct. Lifetime monitoring is associated with parole rather than the post-release supervision to which Duong will be subject when he is released from prison. The district judge lacked power to impose parole conditions.
Conclusion
In light of all of the foregoing discussion, defendant Ho Duong’s conviction for aggravated indecent liberties is affirmed. The lifetime electronic monitoring provision of his sentence is vacated. | [
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The opinion of the court was delivered by
Biles, J.:
Gregory L. Berry directly appeals his conviction and sentence for first- degree felony murder. Berry struck and killed another motorist during a high-speed getaway from a traffic stop. He was apprehended, and cocaine was discovered. The underlying felony for the first-degree felony-murder conviction was possession of cocaine. At trial, Berry requested lesser included offense instructions for second-degree reckless murder, involuntary manslaughter, and vehicular homicide. His request was denied pursuant to the judicially created felony-murder instruction rule, which treats felony murder differently when considering whether to instruct a jury on lesser included offenses. See State v. Jones, 287 Kan. 547, 556-57, 198 P.3d 756 (2008). We have jurisdiction under K.S.A. 22-3601(b)(l) (direct appeal for conviction of an off-grid crime; life sentence).
We reverse Berry’s conviction and sentence on the felony-murder charge and remand for a new trial because we hold the judicially created felony-murder instruction rule must be abandoned. We do so after carefully reviewing the rule’s history and concluding that the rationale for adopting it was flawed. We hold that the better course is to follow K.S.A. 22-3414(3) — the statute governing when lesser included offenses must be issued. That legislative mandate provides no exception for felony murder and malees no allowance for the felony-murder instruction rule. We explain our decision below.
Factual and Procedural Background
A jury convicted Beriy of felony murder, possession of cocaine, and driving while a habitual violator. He pleaded no contest to criminal possession of a firearm. These convictions stem from a chain of events beginning at 1:45 a.m. on November 25, 2004, when a Sedgwick County Sheriff s Deputy driving a marked patrol vehicle spotted a dark-colored Cadillac Berry was driving. The deputy observed what he believed to be an illegitimate 30-day license tag on the vehicle. The Cadillac pulled into a motel parking lot before the deputy could initiate a stop. The deputy waited out of view for the Cadillac to continue down the street. When the Cadillac exited the parking lot, the deputy followed.
Both cars turned and traveled about a block before the deputy activated his patrol car s emergency lights. The Cadillac pulled over. The deputy exited his vehicle and approached. He examined the 30-day tag more closely. It appeared to be legitimate. The deputy then went to the driver s side window and asked Berry for his driver’s license and insurance. Berry did not respond verbally. He looked around, put his vehicle into drive, and sped away. The deputy then ran back to his vehicle and pursued Berry with the patrol car’s emergency lights and siren activated.
The deputy testified at trial that his vehicle’s speed reached 70 miles per hour, which was still not enough to overtake Berry, who kept pulling further ahead. Eventually, the deputy slowed and deactivated his lights and siren because he knew a nearby bar was about to close. The deputy said he was concerned the high-speed chase would endanger the departing patrons, so he hoped turning off his emergency equipment would cause Beriy to slow down. The deputy lost sight of the Cadillac for 30 to 45 seconds, but then saw a large plume of smoke and dust near an approaching intersection. When the deputy arrived, he saw the aftermath of a collision involving the Cadillac and a Chrysler driven by Vicki K. Brown. The Chrysler was struck on the passenger-side door, with the driver trapped inside. Brown died from injuries sustained in the accident.
When a second deputy arrived at the scene, he saw Berry, who had exited his vehicle and was wearing a black coat, running out of a ditch. Berry collided with the second deputy’s vehicle, struck the side mirror, but continued to evade police. A short time later, Berry barged into Fernando Mendoza’s house uninvited. He did not know Mendoza or his family. Mendoza testified Berry said, he needed a place to rest, displayed a “big ole wad of money,” and offered to pay to stay there. Berry told Mendoza the police were after him and that he was a drug dealer. Mendoza’s family called police. When Berry was apprehended, he was not wearing a black coat.
Berry consented to a medical assessment to determine if he was injured. He was taken to a hospital, examined, and released to another deputy. But as Berry stood up from the examining table and turned to be handcuffed, a clear plastic bag containing a white rock-like substance fell from his boxer shorts, landing on the floor between his legs. The bag held 9.31 grams of cocaine. A second clear plastic bag with white rocks was found by a K-9 unit searching in a field near where the unit’s dog identified Berry’s trail. The second bag contained 1.8 grams of cocaine. At another location in the field, a black coat was found. Footprints also were visible, with the trail ending at Mendoza’s house.
Berry was charged with: (1) first-degree felony murder based on the underlying felonies of possession of cocaine with intent to sell or, in the alternative, possession of cocaine; (2) aggravated burglary; (3) felony obstructing official duty; (4) possession of cocaine with intent to sell; (5) possession of cocaine; (6) criminal possession of a firearm; and (7) driving while a habitual violator.
Before trial, Berry filed a motion to dismiss the felony-murder charge based on two premises. First, Berry argued the victim’s death was not within the res gestae of the alleged cocaine possession. He claimed that crime was complete before the car chase began, so the victim’s death did not occur during commission of a felony as required by the felony-murder statute. See K.S.A. 21-3401(b). Second, Berry argued there was no causal connection with the accident because at the time Berry’s car struck and killed the victim, the deputy had abandoned pursuit and Berry was no longer running from police. The motion was overruled. Subsequent motions on the same grounds for judgment of acquittal were denied twice more. One occurred at the close of the State’s case and the other at the conclusion of all the evidence.
The jury convicted Berry of felony murder, possession of cocaine, and driving while being a habitual violator. He pled no contest to criminal possession of a firearm. He was acquitted of aggravated burglary for the Mendoza home intrusion, felony obstructing official duty, and possession of cocaine with intent to sell. He was sentenced to life imprisonment, with a mandatory minimum of 20 years for the felony-murder conviction. He received a consecutive 15-month sentence for possession of cocaine. The remaining sentences ran concurrently to the felony-murder sentence.
Berry filed a timely appeal but failed to properly docket it, resulting in its dismissal. The district court later held a hearing under State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982) (recognizing limited exceptions to permit untimely completion of appeal), and found Berry entitled to continue with his appeal.
Berry raises nine issues: (1) whether there was sufficient evidence of a direct causal connection between the cocaine possession and the killing to support the felony-murder charge; (2) whether Berry was entitled to jury instructions on lesser included offenses of felony murder; (3) whether the district court was required to issue an additional instruction on causation for felony murder; (4) whether the district court improperly restricted Berry’s closing argument; (5) whether the prosecutor committed misconduct by misstating the law on causation during closing arguments; (6) whether Berry preserved for appeal an ineffective assistance of counsel claim; (7) whether the district court erred by failing to raise sua sponte an ineffective assistance of counsel inquiry; (8) whether cumulative error deprived Berry of his right to a fair trial; and (9) whether Berry’s sentence was unconstitutional because his criminal history score was not proven to the jury.
We address first Berry’s claim that the felony-murder charge should have been dismissed before trial because there was insufficient evidence of a causal connection between the traffic fatality and the underlying felony (possession of cocaine). We decide that issue against Berry. Next we consider whether the jury should have been instructed on lesser included offenses. Our decision to aban don the felony-murder instruction rule in favor of following K.S.A. 22-3414(3) resolves that decision in Berry’s favor and renders moot the remaining issues. But we will discuss briefly his arguments relating to his request for an additional causation instruction and the prosecutor’s closing argument because it may be helpful on retrial. Additional facts are included below as required.
Sufficiency of the Evidence
Berry argues first that the district court erred by denying his pretrial motion to dismiss the felony-murder charge. He contends there was insufficient evidence of a causal connection between the traffic fatality and the cocaine possession charge.
K.S.A. 21-3401(b) defines felony murder as “the killing of a human being committed... in the commission of, attempt to commit, or flight from an inherently dangerous felony, as defined in K.S.A. 21-3436.” Possession of cocaine is an inherently dangerous felony. See K.S.A. 21-3436(a)(14) (any felony under K.S.A. 65-4160); K.S.A. 65-4160(b) (person has prior conviction under this section or substantially similar offense and possesses drug listed in K.S.A. 65-4107). We note K.S.A. 21-3436 has since been amended, and K.S.A. 65-4160 has been repealed and replaced with K.S.A. 2010 Supp. 21-36a06.
The felony-murder statute requires two causation elements. First, the death must be within the res gestae of the underlying crime, regardless of the sequence of events leading to the death. State v. Beach, 275 Kan. 603, 609-10, 67 P.3d 121 (2003) (citing State v. Jacques, 270 Kan. 173, 189-90, 14 P.3d 409 [2000]). We define res gestae in the felony-murder context as “acts done before, during, or after the happening of the principal occurrence when those acts are so closely connected with the principal occurrence as to form, in reality, a part of the occurrence.” State v. Jackson, 280 Kan. 541, 545, 124 P.3d 460 (2005). Second, there must be a direct causal connection between the felony and the homicide. Beach, 275 Kan. at 612. Our case law finds this direct causal connection exists unless an extraordinary intervening event supersedes the defendant’s act and becomes the sole legal cause of death. 275 Kan. at 612.
In his motion to dismiss, Berry argued the fatality was not within the res gestae of the cocaine possession. He claimed the cocaine possession was complete before the death occurred. He also argued there was insufficient evidence of a causal connection because at the time Berry’s car struck the victim’s vehicle, the deputy had abandoned pursuit and Berry was no longer running from police.
But Berry did not couch this argument in terms of an intervening or superseding event. He simply argued there was no causal connection because he claims the officer quit the chase before the killing. Berry recites no evidence to support his assertion that he was no longer running from police or that the police were no longer pursuing him. The only evidence in the record is that the officer deactivated his emergency lights and sirens in the hope that Berry would slow to a safer speed.
No doubt recognizing this weakness now on appeal, Berry abandons the res gestae claim and solely argues there was insufficient evidence to make a causal connection between the cocaine possession and the fatality. And in doing so, he offers this court a different theory from what he advanced to the district court. He contends now it was his decision to evade the traffic stop that was the legal cause of the victim’s death and this decision was unrelated to the cocaine possession. To support this, Berry notes he fled after the officer requested his driver’s license and insinuates his effort to escape was to avoid being caught while driving on a suspended license — not because he possessed more than 11 grams of cocaine.
Standard of Review
The standard of review for denial of a motion to dismiss depends on the ground on which dismissal was sought. When insufficient evidence is the basis alleged, our review “asks whether review of all the evidence, viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Garcia, 282 Kan. 252, 259-60, 144 P.3d 684 (2006).
Discussion
A defendant can avoid responsibility for a death occurring during the commission of a felony “ ‘if an extraordinary intervening event supersedes the defendant’s act and becomes the sole legal cause of death.’ ” Beach, 275 Kan. at 612 (quoting State v. LaMae, 268 Kan. 544, 555, 998 P.2d 106 [2000]). In this context, the three factors examined are time, distance, and die causal relationship between die underlying felony and the killing. 275 Kan. at 613. Two prior cases dealing with sufficiency of evidence of a causal connection are relevant: Beach, 275 Kan. at 611-14, and Jackson, 280 Kan. at 546-49. We detail both cases below to explain our rationale in denying Berry’s argument.
In Beach, the defendant was convicted of felony murder based on the underlying felony of sale of methamphetamine. The defendant coordinated the sale. She drove a companion and the supplier to a house where the transaction was to take place. Then, Beach met the victim and led him back to that location. Beach took the money for the drugs from the victim and walked up to the house. Then she heard her companion shoot die victim and another person. Beach left with the shooter. Beach later claimed she did not know her companion was planning to shoot the victim. She argued the plan and actions of her companion and the supplier caused the victim’s death, so their decision to kill the victim was an extraordinary intervening event.
In analyzing the three factors, the Beach court held the time criteria was satisfied because the two events took place simultaneously. The distance factor was satisfied because the defendant chose the location for the drug transaction and the victim waited there in the car for her to complete it. The court then found the events were causally related — the third factor — because Beach told the shooter about the drug sale and that the victim was cariying a lot of cash. 275 Kan. at 613-14.The court reasoned that “[a] person with a large amount of cash intent on engaging in an illegal transaction is a foreseeable target of violent crime.” 275 Kan. at 614.
The facts in Jackson are very similar. Jackson’s felony-murder conviction was based on the underlying felony of selling cocaine. The victim contacted a third party looking for drugs. That person contacted Jackson, who secured the drugs through two other persons. Jackson then picked up the drug suppliers and suggested they meet the victim at a house. When they could not enter, the victim and one of the suppliers got into a fight, and the victim was shot and killed. To avoid the felony-murder charge, Jackson argued the supplier s act of shooting the victim was an extraordinary intervening event that broke the causal connection between the drug transaction and the murder. Citing Beach, the Jackson court rejected that argument. It found the time factor supported conviction because the victim was shot while the victim and the supplier were in the process of completing the drug transaction. It found the distance factor satisfied because a conversation regarding the transaction occurred a few feet from the shooting. As to the causal relationship, the court noted the defendant arranged the drug transaction and was aware selling drugs was a dangerous business in which most people carry guns. The court held the violence was foreseeable and the jury could infer a causal connection. 280 Kan. at 548-49.
Turning to the facts here, it is immediately apparent the posture is different. In Berry’s case, the underlying felony is drug possession (not sale) and Berry was the only participant. But the time and distance factors still support conviction. The time factor is satisfied because Berry had the cocaine in his possession when the accident happened. The distance factor is satisfied because the accident and possession occurred at the same location. The causal connection factor is also clear because it is foreseeable that a person possessing more than 11 grams of cocaine would attempt to flee from law enforcement officers. See, e.g., State v. Anderson, 281 Kan. 896, 899, 136 P.3d 406 (2006) (Defendant attempted to flee from police on foot before arrest and tried to discard baggies of drugs near a dumpster and hide others in his shoe.); State v. Le, 260 Kan. 845, 845-46, 926 P.2d 638 (1996) (Defendant attempted to flee a traffic stop and was later found in possession of marijuana.). To be sure, there is foreseeable danger when engaging in a high-speed motor vehicle chase with law enforcement officers. See, e.g., State v. Johns, 237 Kan. 402, 403, 699 P.2d 538 (1985) (Fatality collision resulted from defendants attempting to elude police after committing an armed robbery.); see also Sykes v. United States, No. 09-11311, 2011WL 2224437, at *7 (U.S. 2011) (Risk of violence and physical injury are inherent in vehicle flight.).
Put simply, it belies common sense to argue Berry’s decision to flee the traffic stop was limited to just one of his crimes and not the others. There is no evidence to reasonably determine Berry’s flight was due to the driver’s license violation to the exclusion of the more serious crimes involved here. We find it reasonable for a jury to conclude Berry fled because of all his crimes: the suspended license, illegal possession of a firearm, and possession of cocaine. And considering his attempts to discard and hide the cocaine after the accident and his statement to Mendoza that he was a drug dealer, a rational factfinder, based on all the evidence viewed in a light most favorable to the prosecution, could have concluded that Berry fled the deputy and initiated a dangerous high-speed car chase specifically to avoid being caught with a substantial quantity of cocaine. We find the evidence sufficient to support the causal connection required for the felony-murder conviction.
Lesser Included Offenses for Felony Murder
Berry next argues he was entitled to instructions on the lesser included offenses of second-degree reckless murder, involuntary manslaughter, and vehicular homicide. He concedes the evidence of the underlying felony (possession of cocaine) is strong, but asserts he still was entitled to the lesser included offense instructions because the jury could have found no causal connection between the felony and the killing. The State responds that under the applicable test used in determining whether lesser included offense instructions are required in a felony-murder case, the evidence of the felony must be weak, inconclusive, or conflicting to justify giving tiróse instructions. The State argues the evidence of the felony is strong. The district court overruled Berry’s request.
Standard of Review
Our initial inquiry is whether the court-made felony-murder instruction rule violates K.S.A. 22-3414(3). Interpretation of a statute is a question of law, and the standard of review is unlimited. State v. Gracey, 288 Kan. 252, 257, 200 P.3d 1275 (2009).
Discussion
K.S.A. 22-3414(3) directs trial courts to issue lesser included offense instructions “where there is some evidence which would reasonably justify a conviction of some lesser included crime.” Under that statute, the analysis focuses on the evidence supporting the lesser offense, and evidence of the higher offense is considered only in determining whether that evidence would allow a jury to reasonably convict of a lesser included offense. We have held in nonfelony-murder cases that the statute triggers lesser included offense instructions upon the request of the defendant, if the jury could reasonably convict the defendant of the lesser included offense based on the evidence presented. State v. Houston, 289 Kan. 252, 273-74, 213 P.3d 728 (2009).
Notably, K.S.A. 22-3414 does not exclude felony murder cases from its jury instruction requirements. And despite the statute’s provisions, felony-murder cases have not followed the statutoiy model. Instead, these cases have been analyzed under a court-made rule, commonly referred to as the felony-murder instruction rule. See State v. Becker, 290 Kan. 842, 856-57, 235 P.3d 424 (2010) (holding the statute governing lesser included offense instructions does not apply to felony murder); State v. Jones, 287 Kan. 547, 558, 198 P.3d 756 (2008) (Johnson, J., dissenting).
Under the felony-murder instruction rule, lesser included offense instructions have been required only when evidence of the underlying felony is weak, inconclusive, or conflicting. State v. Hoffman, 288 Kan. 100, 105, 200 P.3d 1254 (2009). To determine if the evidence is strong or weak, appellate courts have considered whether a reasonable trier of fact could determine the felony was committed beyond a reasonable doubt. If so, the evidence of the felony is not deemed weak or inconclusive. State v. Dixon, 289 Kan. 46, 63, 209 P.3d 675 (2009). But if evidence of the underlying felony is weak, the court has examined whether enough evidence exists to support a conviction for a lesser included offense. Jones, 287 Kan. at 557.
The court-made felony-murder instruction rule has its detractors. See Jones, 287 Kan. at 558 (Johnson, J., concurring) (“The felony-murder [instruction] rule turns the [ordinary nonfelonymurder] analysis on its head by focusing on the evidentiary support for the charged crime, rather than looking at the evidence to support the lesser included crime.”); Note, Felony Murder in Kansas — The Prosecutor’s New Device: State v. Goodseal, 26 Kan. L. Rev. 145, 155 (1977).
Acknowledging this criticism, as well as the clarity provided by K.S.A. 22-3414(3), we take the opportunity presented by Berry’s arguments to revisit this court-made rule. At its conclusion, our review shows the prior analysis leading to the felony-murder instruction rule is flawed. We find that lesser included offense instructions in felony-murder cases must be issued as directed by the statute and the case law applying its provisions. To explain our reasoning, we explore the early case law leading to the emergence of the current felony-murder instruction rule. We next apply our conclusion to Berry’s case and then address how other cases still pending or not yet final are affected by our holding.
(1) Early case law
Since 1868, trial courts have been statutorily required in all criminal cases to instruct juries on “all matters of law which are necessary for their information.” G.S. 1868, ch. 82, § 236. This statute was held to require instructions on lesser offenses if even “slight evidence” was produced to support a conviction of the lesser offense. State v. Woods, 105 Kan. 554, 558, 185 P. 21 (1919) (citing State v. Clark, 69 Kan. 576, 77 P. 287 [1904]). This statutory rule— as well as our courts — treated felony murder the same as other offenses, even though the courts discerned two categories of felony-murder cases.
In the first category, the evidence was undisputed that a homicide occurred during commission of a felony, but the defendant typically claimed innocence of all charges. Under these circumstances, the court reasoned lesser included offense instructions were not required because the defendant was either guilty of both the felony and the murder, or innocent. See State v. Roselli, 109 Kan. 33, 40,198 P. 195 (1921) (Defendant and a companion killed a merchant while robbing a Kansas store. Lesser included instructions to felony murder were not required because the defendant claimed he was in Missouri and not present at the robbery.).
The second category was more varied because the defendant typically admitted guilt for some offense but argued that misconduct did not amount to felony murder. For example, in State v. Severas, 158 Kan. 453, 148 P.2d 488 (1944), the defendant was convicted of felony murder for the death of an 8-year-old girl. The defendant admitted he committed a physical assault but argued he was entitled to a first-degree manslaughter charge because he claimed he was punishing the child for lying and did not intend to kill her. The Severas court held that under this defense theory, the jury could have concluded the defendant did not intend the child’s death and the crime perpetrated was a misdemeanor. As such, the defendant was entitled to instructions on all lesser degrees of homicide. 158 Kan. at 458-59.
Notably, the Severas court found the weight of the evidence irrelevant, stating the “fact that the court may deem the evidence supporting a lesser degree to be weak and inconclusive does not warrant it in refusing the instruction, for the weight of the evidence is for the jury.” 158 Kan. at 458; see also State v. Bradford, 219 Kan. 336, 342-44, 548 P.2d 812 (1976) (Second-degree murder instruction was proper in a felony-murder case because the jury could have concluded defendant did not commit robbery when evidence was introduced that the deceased had a large sum of money and a pad of paper when he was killed and defendant was found later that morning with only $5 and the pad of paper.).
The first case in which this court found lesser included offense instructions were not required despite some evidence supporting lesser charges was State v. Germany, 173 Kan. 214, 245 P.2d 981 (1952). Germany is striking because it recites no case law or statutory authority for its holding. It simply recites the facts from the record and then declares no trial court error. In that case, the defendant was convicted of felony murder for a robbery and killing and sentenced to death. An eyewitness testified Germany approached the victim and a witness while they sat in a parked car and then demanded the victim get out and hand over his wallet. When the victim complied, Germany asked instead for the car keys. The surviving witness testified she heard the keys fall to the ground and saw Germany raise his gun and shoot the victim. The defendant’s confession was admitted at trial. In it, he conceded he approached the car, opened the front door, and said, “This is a hold up.” 173 Kan. at 222. Then, he said, he asked for the wallet and keys but did not take the wallet. The wallet was never found.
Germany argued on appeal that he was entitled to instructions on second-degree murder and manslaughter because he testified at trial that he did not know the gun was cocked, the whole incident was a Halloween prank, and there was no evidence he intended to commit robbery since he asked for the car keys instead of taking the wallet. The State objected, arguing it was in the defendant’s best interest not to issue lesser included offense instructions because the defendant would be acquitted if the State did not prove the robbeiy. The district court agreed but then commented that the evidence was so strong against the defendant that the jury could only conclude the killing was committed during a robbery. On appeal, this court lumped together all the trial errors alleged, did not analyze them individually, and stated only that “no error was committed in any manner of which the appellant now complains.” 173 Kan. at 225-26.
Undoubtedly, the evidence in Germany challenging the robbery element was implausible and contradicted by the defendant’s own testimony, but this court’s simplistic decision departed without explanation from the Severn court’s analysis that the weight of the evidence is a jury consideration. More oddly, this court would later characterize Germany in a subsequent decision as a case in which the evidence at trial excluded the theory of guilt on any lesser degree of crime. State v. Hoy, 199 Kan. 340, 343, 430 P.2d 275 (1967). But it would not be until 20 years after Germany that this court would again weigh evidence to find the giving of lesser included offense instructions unnecessary and produce the felony-murder instruction rule in its current form.
(2) Emergence of the current felony-murder instruction rule
The decision that followed 2 decades after Germany was State v. Masqua, 210 Kan. 419, 502 P.2d 728 (1972), cert. denied 411 U.S. 951 (1973). In that case, the court again found lesser included offense instructions were unnecessary due to the weight of evidence supporting the underlying felony. In doing so, it provided a more detailed analysis for its outcome.
In Masqua, the defendant was convicted of felony murder for killing the victim while committing rape. Masqua presented two defense theories. First, he argued he did not do it. Second, he argued that even if he did it, he was too intoxicated to be culpable. The defendant’s statements to police that he was drinking beer that evening were the only evidence of intoxication admitted at trial. There was no evidence as to the degree of intoxication.
But the Masqua court held that since the defendant did not testify, his admissions to police regarding intoxication were “self-serving” and not “so cogent as to require the giving of the instruction requested.” 210 Kan. at 425. It further held that issuing lesser included offense instructions would force the jury to speculate on a degree of homicide “not in the case upon any theory.” 210 Kan. at 425. The lack of evidence of intoxication and a determination that there was no evidence supporting lesser included offense instructions would have been sufficient under then-existing case law to find lesser included offense instructions were not required, but the Masqua court went further. It stated:
“More compelling, however, is the character of the charges against the appellant. The state’s theory was that [defendant] had committed a murder while perpetrating a felony (forcible rape). Homicide while committing a felony is the statutory equivalent to the deliberation and premeditation essential to murder in the first degree. It follows that if the appellant was present at the rape, the mere participation in that felony would supply the elements of deliberation and premeditation, both of which must be absent from second degree murder and manslaughter. Either the rape was perpetrated by the appellant and he necessarily is responsible for the murder, or he was not present at the rape where the killing occurred and not guilty of any degree of homicide. [Citations omitted.]” (Emphasis added.) 210 Kan. at 425.
This analysis made two important changes to the case law preceding it. First, it hinted that second-degree murder and man slaughter were not lesser included offenses of felony murder by noting felony murder requires deliberation and premeditation. Second, the Masqua court grafted the “guilty of both or innocent of all” analysis from the older cases in which a defendant claimed innocence onto a case where the defendant admitted misconduct but argued he was not culpable because he was intoxicated. Since the court had already concluded this theory was not supported by the record, this holding was unnecessary. Two years after Masqua, this court relied on it and Germany to explicitly hold that the rule for lesser included offenses in felony-murder cases was an exception to the general rule applied in all other criminal cases. State v. Reed, 214 Kan. 562, 564, 520 P.2d 1314 (1974).
In Reed, the defendant was convicted of felony murder for the robbery and killing of a store clerk. Reed and an accomplice robbed the store at gunpoint. They shot the clerk when they discovered the register contained little money. Both defendants were apprehended immediately after leaving the store. They were tried together, and the facts were outlined in the codefendant’s appeal, State v. Osbey, 213 Kan. 564, 517 P.2d 141 (1973). Reed argued he was entitled to lesser included offense instructions, but the court held the instructions were not required. In reaching this holding, the court did not examine any facts or trial theories. Instead, the Reed court simply began by stating that lesser included offense instructions were only required if there was evidence of circumstances allowing for tire reasonable conviction of the lesser included offense. If the court had stopped there, no change in direction or confusion with previous analysis would have been signaled. But it then stated:
“In die past this court lias held that in a murder committed during the commission of a felony the usual rule requiring instructions on lesser included offenses does not apply. [Citations omitted.] If a murder is committed while-engaged in a felony the felonious conduct itself is held tantamount to the elements of deliberation and premeditation which are otherwise required for first degree murder. [Citations omitted.]
“Therefore, to support a conviction for felony murder all that is required is to prove that a felony was being committed which was inherently dangerous to human life, and that the homicide was a direct result of the commission of that felony. [Citation omitted.] If such proof is produced the only possible conviction can be that of first degree murder under the felony murder rule.” (Emphasis added.) 214 Kan. at 564.
This analysis — that felony murder is the only crime that could be established if the State proves the murder was committed during a felony — strongly suggested there should be no lesser included offenses to felony murder. And in Bradford, 219 Kan. 336, 341-42, the defendant argued that Reed established that principle. But this court disagreed, changing the evaluation process again.
In Bradford, the defendant and a friend were drinking and walking around Manhattan, Kansas. Bradford said something to his friend about robbing someone, and the two separated. The friend heard Bradford demand someone’s wallet, and the victim indicated he did not have one. The friend returned to the scene, and the victim attempted to flee. Both Bradford and the friend hit the victim, knocking him down. After the victim lost consciousness, Bradford said they should kill him since he was almost dead. Bradford repeatedly struck the victim in the head, killing him. Then Bradford searched his pockets and removed a pad of paper, which he still possessed when arrested. Bradford offered evidence that the victim had a lot of money with him before he died, but Bradford only took the paper. As such, he argued the evidence of the robbeiy was disputed. Bradford also contended that a second-degree murder instruction was improper because it was not a lesser included offense of felony murder, citing Reed.
The Bradford court began by noting the general rule for lesser included offenses set out by statute. See 219 Kan. at 341. It then stated that Germany and Masqua established an exception for felony-murder cases. And after quoting Masqua at length, the Bradford court concluded the evidence of the felony was uncontroverted in Masqua and Reed and, in those cases, the defendant was either guilty of felony murder or innocent. The Bradford court concluded Masqua and Reed were distinguishable because there was conflicting evidence as to whether the robbery occurred in Bradford. The Bradford court then adopted a rule more similar to that applied in the earlier cases, holding:
“Ordinarily, in a felony murder case, where the evidence of the commission of the felony is clear and uncontroverted, no instruction on lesser degrees of homi cide should be given. But where, as here, there is conflicting evidence as to the commission of the felony, and where the evidence will support a conviction of a lesser degree of homicide, instructions on appropriate lesser degrees should be given.” 219 Kan. at 343.
Before concluding that the instructions were proper, the Bradford court went on to hold:
“While we agree that in a felony murder case no instructions on lesser degrees of homicide should be given where all of the evidence demonstrates that the homicide was committed during the commission of a felony (40 Am. Jur. 2d, Homicide, § 534), we hold that the rule is otherwise where, as here, evidence of the commission of the felony is disputed or unclear, where the evidence supports instructions on lesser degrees, and where different inferences and conclusions might be drawn by the trier of fact as to which degree of homicide, if any, was committed. State v. Wilson, 182 Or. 681, 684, 695, 189 P.2d 403 [1948].” (Emphasis added.) 219 Kan. at 344.
This reasoning effectively rescinded the Reed court’s analysis suggesting there were no lesser included offenses to felony murder. Instead, the Bradford court focused on the evidence and defense theories supporting the lesser homicide. It did not hold, as we have more recently, that the sole consideration should be evidence of the felony — that emphasis emerged in State v. Rueckert, 221 Kan. 727, 561 P.2d 850 (1977), and the focus again shifted.
In Rueckert, the defendant was convicted of felony murder for the shooting and aggravated robbery of a motorist. Three witnesses and the defendant testified. Rueckert’s accomplice claimed Rueckert hit the victim on the head with a jack post and took the victim’s wallet. Two other witnesses testified that Rueckert confessed to hitting the victim and taking his money. Rueckert claimed that because he was intoxicated, he did not remember whether he struck and robbed the motorist. Rüeckert then argued he was entitled to instructions on the lesser degrees of homicide because the aggravated robbery evidence was weak.
The Rueckert court cited Bradford at length. It specifically referenced the paragraph from Bradford quoted above, which held lesser included offense instructions are required when evidence of the commission of the felony is disputed or unclear, the evidence supports lesser instructions, and when the trier of fact coiild draw different inferences or conclusions from the evidence. 221 Kan. at 732. But after acknowledging the Bradford analysis was sound, the Rueckert court curiously concluded that lesser included offense instructions were not required because “the undisputed evidence was sufficient to convince a reasonable mind that a felony had been committed; therefore, instructions on lesser degrees of homicide were not warranted.” 221 Kan. at 732. The court then examined the evidence supporting the aggravated robbery and discounted the defendant’s voluntary intoxication defense because aggravated robbery is not a specific intent crime. 221 Kan. at 732-33. As such, the court concluded Rueckert either committed robbery and murder or he was innocent.
This analysis signaled a return to the distinct categories made decades earlier by the court. But given its expressed affirmation of the Bradford rule, it seems unlikely the Rueckert court really intended to create a new standard, though Rueckert was the precursor for the current felony-murder instruction rule. That is seen by this court’s citation to Rueckert in State v. Sullivan & Sullivan, 224 Kan. 110, 121, 578 P.2d 1108 (1978), for estabhshing the principle that lesser included offense instructions are only required if the evidence of the underlying felony is weak or inconclusive.
In Sullivan, the defendant was convicted of felony murder in a joint trial with his accomplice, James Sullivan. Three people testified: a witness, John, and James. The witness testified that the night before the homicide James and John planned to rob Randy Moore’s home because Moore had taken some of John’s possessions. The witness also testified John told him he had to shoot the victim because the victim recognized him. For his part, John testified he went to Moore’s house to retrieve property Moore had taken and thought Moore was not home. John had armed himself, he said,' because he was afraid of Moore’s vicious attack dog. John waited in the yard, realized Moore was home, and was about to leave when he heard someone say they were going to let the dog out. John said he did not see anyone on the porch and he shot at the advancing dog to defend himself. James’ confession conflicted with John’s story. James stated they went with the intention of burglarizing the home and the shooting occurred before the dog advanced. John’s trial theory was that the homicide was unintentional and he was not guilty of attempted burglary because they had not entered the home. As such, he argued the only crime committed was trespass — a misdemeanor not subject to the felony-murder statute. 224 Kan. at 120-21.
The Sullivan court began by citing Bradford as holding that lesser included offense instructions are required for felony murder unless no possible view of the facts justified another verdict. 224 Kan. at 121 (citing 41 C.J.S., Homicide § 392c). The court held that the felony would have to be attempted burglary because the defendant had not entered the home. The court then reasoned that to deny the lesser included offense instructions the trial court had to have concluded as a matter of law that the evidence established the defendants committed attempted burglary and no other conclusion was possible. 224 Kan. at 121. Citing Rueckert and Bradford, this court found the trial evidence of the felony was not so compelling that another verdict was impossible and the trial court erred in refusing the lesser included offense instructions. 224 Kan. at 122.
Again, this analysis examined both the evidence and the defendant’s trial theory supporting the lesser included offenses in order for the court to reach its outcome. But the cases immediately following Sullivan tend to be conclusory and cite the “weak and inconclusive” rule to support a holding that the evidence of the felony was strong. See State v. Strauch, 239 Kan. 203, 218-19, 718 P.2d 613 (1986); State v. Rider, Edens & Lemons, 229 Kan. 394, 399-400, 625 P.2d 425 (1981).
Over time, the felony-murder instruction analysis became solely focused on the evidence supporting the felony, and at times the reasoning became circular. See State v. Hobbs, 248 Kan. 342, 348, 807 P.2d 120 (1991) (finding the evidence undisputed and not weak or inconclusive considering it “convinced twelve reasonable jurors that an aggravated robbery had been committed and a death resulted”). Our review of the cases that followed did not uncover any opinion explicitly altering the more rigorous analysis of the cases in the 1970s that led to the current rule. But it seems that once the abbreviated language of tire rule was established in the 1970s, this court’s analysis became less rigorous because it was no longer required to do more under the reasoning so simply stated in Sullivan.
Given this less than precise development for what has now become our felony-murder instruction rule, we hold it must be overruled because it unnecessarily misdirects a district court’s analysis, especially given the express language in K.S.A. 22-3414(3) that applies to all offenses without distinguishing felony murder. We consider next what analysis should be used.
(3) Lesser included offense analysis should apply to felony-murder cases
As mentioned above, K.S.A. 22-3414(3) directs courts as to how they must decide requests for lesser included instructions from criminal defendants. Lesser included offense instructions must be issued if “there is some evidence which would reasonably justify a conviction of some lesser included crime.” K.S.A. 22-3414(3). It makes no exception for the judicially created felony-murder instruction rule and does not require there to be conflicting evidence as to the commission of the felony before the statute is applied.
Accordingly, and after thoroughly reviewing the case law developed since Germany, we find lesser included offense instructions should follow the statutory mandate so that instructions are issued if there is some evidence that would reasonably justify the conviction of the lesser included crime. In short, we would apply K.S.A. 22-3414(3) as written to felony-murder cases. Cf. State v. Gunby, 282 Kan. 39, 57, 144 P.3d 647 (2006) (requiring all other crimes and civil wrongs evidence to be governed by K.S.A. 60-455 and ending past practices of permitting admission of such evidence independent of the statute). We disapprove any language to the contrary in our previous opinions.
In Berry’s case, and using the statutory viewpoint directed by K.S.A. 22-3414(3), we find the evidence could reasonably justify a conviction for lesser included crimes. Indeed, the evidence is undisputed that Berry fled from the traffic stop and recklessly drove down city streets at an unconscionably high rate of speed. His flight caused an automobile accident that took someone’s life. Such ev idence could support a conviction for second-degree reckless murder. See K.S.A. 21-3402(b) (unintentionally killing a person recklessly under circumstances manifesting extreme indifference to the value of human life). Also, the evidence could justify a conviction for involuntary manslaughter. See K.S.A. 2004 Supp. 21-3404(a) (unintentionally killing a person recklessly). And the evidence could support a conviction of vehicular homicide. See K.S.A. 21-3405 (unintentionally killing a person while operating an automobile in a manner that created an unreasonable risk of injury to the person of another and constituted a material deviation from the standard of care a reasonable person would observe under the same circumstances.). As such, the failure to issue the lesser included offense instructions amounts to reversible error when following the statutory directive of K.S.A. 22-3414(3). We reverse Berry’s felony-murder conviction based on the above analysis and order a new trial on that charge.
Finally, we hold that the decision announced in this case is to have application in all pending felony-murder cases. This court previously has noted that a new rule for the conduct of criminal prosecutions is to be applied to all cases, state or federal, pending on direct review or not yet final. Gaudina v. State, 278 Kan. 103, 106, 92 P.3d 574 (2004) (adopting rule set out in Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 93 L. Ed. 2d 649 [1987]). A conviction is generally not final until: (1) the judgment of conviction is rendered; (2) the availability of an appeal is exhausted; and (3) the time for any rehearing or final review has passed. State v. Boggs, 287 Kan. 298, 305-06, 197 P.3d 441 (2008) (holding new rule in criminal prosecutions is applied to cases pending on direct review but not final); see Gaudina, 278 Kan. at 105-06; State v. Heath, 222 Kan. 50, 54, 563 P.2d 418 (1977).
Our ruling in Beriy’s appeal renders moot the remaining issues he raises, but we elect to discuss the arguments relating to Berrys request for an additional causation instruction and the prosecutor’s closing arguments. We do so in the interest of judicial economy and because these questions may arise again on remand.
Causation Instruction for Felony Murder
At trial, Berry argued there should be an additional jury instruc tion regarding the causal relationship between the murder and the underlying possession of cocaine felony. But Berry’s trial counsel did not offer alternative language. He simply argued that a causal connection between the commission of the crime and the death required more detailed instruction rather than simply establishing that the two events occurred at the same time. The district court denied the request. It followed PIK Crim. 3d 56.02, stating:
“To establish [the felony-murder] charge, each of the following claims must be proved:
“1. That the defendant killed Vicki K. Brown;
“2. That such killing was done while in the commission of possession of cocaine with intent to sell or possession of cocaine
“3. That this act occurred on or about the 25th day of November, 2004, in Sedgwick County, Kansas.” (Emphasis added.)
On appeal, Berry argues additional instructions would have better explained causation to the jury. He also argues additional instruction would have clarified the prosecutor’s alleged mischaracterization of the elements of the crimes alleged, which is discussed below. But Berry does not articulate in his appeal brief what instruction should have been given, arguing simply that something else should have been done.
Standard of Review
When the trial court refuses to give a requested instruction, an appellate court views the evidence in a light most favorable to the party requesting the instruction. A defendant is entitled to an instruction on his or her defense theory, even if the evidence is slight and only supported by the defendant’s own testimony. But appellate courts do not consider the requested instruction in isolation. It is considered in light of all the instructions. The instructions are not reversible error, even if they are in some way erroneous, if they properly and fairly state the law as applied to the facts of the case and the jury could not reasonably be misled by them. Jackson, 280 Kan. at 549-50. We will use this standard of review, but we note Berry did not actually request a specific alternative instruction.
Discussion
This court has previously approved the causation element stated in PIK Crim. 3d 56.02, finding this instruction requires that the death is perpetrated by the defendant or someone else during the commission of the felony. Jackson, 280 Kan. at 550 (citing Beach, 275 Kan. at 625, and State v. LaMae, 268 Kan. 544, 555, 998 P.2d 106 [2000]). In Jackson, the second requirement in tire instructions differed slightly from the one issued here. It required the State to prove “ ‘[t]hat such killing was done while in the commission of or attempting to commit sale of cocaine.’ ” 280 Kan. at 551. The attempt language was not included in the instruction issued at Berry’s trial.
The Jackson court focused on the commission requirement, concluding that the claim of felony murder would not have been satisfied if the jury had found the drug transaction was complete or the defendant had abandoned it before the killing occurred. The court found the instructions would have required the jury to acquit in those circumstances. 280 Kan. at 551. We recently affirmed this holding in State v. Ransom, 288 Kan. 697, 713, 207 P.3d 208 (2009) (PIK Crim. 3d 56.02 sufficiently incorporates the causation requirement). The same analysis applies here. As such, the trial court did not err in refusing to create and issue an additional instruction on causation.
Prosecutorial Misconduct
Berry also argues the prosecutor committed misconduct during closing arguments by omitting the causation requirement when describing the elements of felony murder.
Standard of Review
This court employs a two-step analysis for determining whether a prosecutor committed misconduct. First, the court must determine whether the prosecutor’s statements were outside the wide latitude for language and manner allowed when discussing the evidence. Second, it must determine whether the comments constitute plain error, i.e., the statements were so gross and flagrant that they prejudiced the jury against the defendant and denied the de fendant a fair trial. State v. Scott, 286 Kan. 54, 77, 183 P.3d 801 (2008) (citing State v. Tosh, 278 Kan. 83, Syl. ¶ 1, 91 P.3d 1204 [2004]).
Three factors must be considered under the second step: (1) whether the misconduct is so gross and flagrant as to deny the accused a fair trial; (2) whether the remarks demonstrate the prosecutor harbored ill will; and (3) whether the evidence against die defendant is of such a direct and overwhelming nature that the misconduct is unlikely to have had much weight with the jurors. Scott, 286 Kan. at 78. None of these factors is individually controlling. Before the third factor can override the other two, it must satisfy the harmlessness test from both K.S.A. 60-261 and Chapman v. California, 386 U.S. 18, 22, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). 286 Kan. at 79.
Discussion
The State began its closing arguments by reviewing the elements required to convict on each charge. The prosecutor stated:
“I’m going to go through these elements. The jury instructions the judge gives you, that’s the law. I’m paraphrasing, obviously, trying to malee this readable. So if there’s anything that I put on this presentation that is different than the jury instructions, the jury instructions are the law because that’s [the judge’s] province.”
Regarding felony murder, the prosecutor stated the State must prove Berry killed the victim and that the killing occurred while he possessed cocaine. Specifically, the prosecutor stated:
“[W]hen you have the crime of felony murder, what we have to show is that the defendant killed Vicki Brown. It doesn’t say intentionally. We don’t have to show he intentionally killed her. It doesn’t say premeditated. We don’t have to show that he acted with premeditation. . . . The only element that you’ll see on felony murder is the defendant killed Vicki Brown. That’s it on that one, not intentionally, not with premeditation. Doesn’t matter if it’s an accident. Your question is did he kill her.
“Continuing on that, ask yourself this: Did his actions cause her death? If yes, then he killed her. Now, the killing — the second part of it is that the killing has to be done while possessing cocaine or possessing cocaine with intent to sell. Obviously if you possess cocaine with intent to sefl you are possessing cocaine, but it’s — so essentially when you’re looking at felony murder you have two decisions: one, did he kill her; two, was he possessing cocaine at the time. If you answer yes to those, yes, his actions killed her, yes, he was possessing cocaine at the time whether it be in his pocket or in the car, then he’s guilty of felony murder.” (Emphasis added.)
At the conclusion of rebuttal argument, the prosecutor again stated the jury must find Berry caused the victim’s death and possessed cocaine at the time it occurred. He argued:
“Ladies and gentleman, when we went through voir dire we asked about following law in the case and we asked about following the instructions. Instructions on felony murder are very clear. I’m asking that you not add to them. Did he possess — did he cause her death? Was he possessing cocaine at the time? If those two factors are there then he is guilty of murder.” (Emphasis added.)
Berry contends these statements fail to instruct the jury on the causal connection required to convict for felony murder. And while it may seem minor, there is a distinction between the language approved for the jury instructions — a killing done while in the commission of possessing cocaine — and the prosecutor’s comment that the killing occurred while possessing cocaine. As discussed above, the “in the commission of’ language is critical because the jury’s determination that there is not a superseding event is inferred from this finding. Jackson, 280 Kan. at 550 (stating “ ‘ “if the jury found that the defendant or another was responsible for the death in the commission of the felony, the jury by definition found that no extraordinary intervening cause existed that was the sole cause of the death” ’ ”). As such, the State’s closing arguments failed to adequately describe the elements of felony murder. This was error under the first step of the prosecutorial misconduct analysis.
But we need not address the second step of the prosecutorial misconduct analysis because the case is being remanded. We presume the State will be more artful in its closing arguments if this case is retried.
Reversed and remanded.
Davis, C.J., not participating.
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The opinion of the court was delivered by
Beier, J.:
This is a direct appeal from defendant Jerry D. Sellers, Jr.’s jury conviction on two counts of aggravated indecent liberties with a child, in violation of K.S.A. 21-3504(a)(3)(A). Sellers re ceived a consecutive 72-month prison sentence on Count 1 and 59-month sentence on Count 2. The district court judge also ordered that Sellers be subject to lifetime postrelease supervision and lifetime electronic monitoring.
Sellers raises five issues for our consideration: (1) Whether the district judge erred in denying his motion for a psychological evaluation of the victim; (2) whether his convictions were multiplicitous; (3) whether the order for lifetime postrelease is unconstitutional; (4) whether the district judge erred in modifying his sentence; and (5) whether the district judge erred by ordering lifetime postrelease and lifetime electronic monitoring.
Factual and Procedural Background
The Incidents and Accusation
Sellers lived with C.M. and her 13-year-old daughter, M.R.C., in C.M.’s home. Sellers and C.M. had previously been deployed together in the Army National Guard, serving in Kuwait. Sellers’ relationship with M.R.C. became strained, and C.M. and M.R.C. began to argue about him. The worst of these arguments occurred in early December 2007.
On December 3, 2007, C.M. went to her sister’s home to talk about the situation. C.M. asked her sister to try to talk to M.R.C. to find out what was bothering her. The sister did as asked the same evening while making dinner with M.R.C. When M.R.C. learned from the sister that Sellers was going to ask C.M. to marry him, M.R.C. told the sister that Sellers had touched her. Upon urging by the sister, M.R.C. also told C.M. that Sellers had touched her “up top and down below.”
Later that evening, C.M. told Sellers that M.R.C. had said he touched her breast and “down there.” C.M. told Sellers she would get him some help. When Sellers left for work the next morning, however, C.M. took M.R.C. to the police station to report the incident.
C.M. and M.R.C. arrived at the police station at 6 a.m. and met with Officer Joshua Lowe to give an initial report. Lowe interviewed C.M. and M.R.C. and prepared a report before referring the case to a detective for further investigation.
M.R.C. reported that Sellers put his hands up her shirt and felt her chest and touched her on her pubic area. Lowe asked a series of yes/no follow-up questions, including whether “Jerry had put his hands down her pants.” M.R.C said Sellers had not done so. M.R.C. believed that the touching incident occurred around Saturday, November 17, 2007. Lowe asked M.R.C. if she was home alone with Sellers when the touching occurred, and she replied that she was. In addition, in response to Lowe’s question about how Sellers went about touching her, M.R.C. said that Sellers just walked up and touched her.
Lowe eventually would testify that his purpose with the initial interview was to get enough information to see if the matter warranted calling in a detective to conduct a forensic interview.
At 10 a.m. the same day as the Lowe interview, Detective Michael Yoder interviewed M.R.C. at the Heart to Heart Advocacy Center. M.R.C. told Yoder that she did not get along with Sellers and worried that he would divert her mother’s affection. M.R.C. also told Yoder that the touching incident occurred around Thanksgiving; she thought it happened on November 16.
Describing the incident, M.R.C. told Yoder that between 10 a.m. and 11 a.m., she went to lie down with her mother on her mother’s bed. M.R.C. lay on one side of the bed and her mother on the other, and the two held hands. Sellers joined them on the bed, lying between M.R.C. and her mother with his head level with M.R.C.’s waist. Sellers put his arm over M.R.C.’s leg, then moved his hand so it was between M.R.C. and the mattress, and then moved it from touching her stomach to her chest. M.R.C. told Yoder that when Sellers’ hand had reached her breast, he moved his hand around over her breast. Sellers then stopped touching M.R.C. and left the room to go check on the family’s dog, which was making noise in another room.
M.R.C. told Yoder that Sellers then came back into the room, checked to see if her mother was asleep, lay back down, and put his hand on M.R.C.’s leg. He moved his hand up to M.R.C.’s pubic area. Sellers then got off the bed again and walked over to her mother’s side of the bed to see if she was still asleep. He then walked to M.R.C.’s side of the bed and started to push M.R.C.’s shirt up. At that point, M.R.C. squeezed her mother s hand and woke her up.
Yoder asked M.R.C. if there had been any other incidents in which Sellers touched her inappropriately; and she said there was another incident the previous Halloween. M.R.C. said that Sellers touched her on her buttocks when she, Sellers, and her mother were cooking in the kitchen. M.R.C. also reported a third incident, in which she hugged Sellers goodnight and he grabbed her on the buttocks.
The Charges and Pretrial Proceedings
Sellers was charged with three counts of aggravated indecent liberties with a child under K.S.A. 21-3504(a)(3)(A). Count 1 was for touching M.R.C.’s breast on or about November 17, 2007. Count 2 was for touching M.R.C.’s pubic area on or about November 17, 2007. Count 3 was for touching M.R.C.’s buttocks around Halloween 2007.
At Sellers’ December 19,2007, preliminary hearing, M.R.C. testified. Her story about the touching on the bed around Thanksgiving was the same as that she had told to Yoder. On cross-examination, M.R.C. admitted that she initially dismissed the Halloween touching of her buttocks as accidental. She also admitted that she did not tell anyone about Sellers touching her until she learned about Sellers’ and her mother’s marriage plans and that this news upset her.
About a month after the preliminary hearing, Sellers filed a notice of alibi, stating that he was on duty with the Army National Guard on November 17, 2007, i.e., the date of the incidents supporting Counts 1 and 2.
The State filed its first amended complaint the next day, changing the dates for Counts 1 and 2 to “on or about November 24, 2007.”
A week later, Sellers served a motion for psychological evaluation of M.R.C. on the State. In his motion, Sellers argued that there was no evidence corroborating M.R.C.’s story. He further contended that M.R.C. had admitted that she was afraid Sellers’ interest in her mother would interfere with her mother’s affections for her. Sellers also argued that M.R.C. had demonstrated a lack of veracity by giving investigators two different stories about the circumstances of the Thanksgiving touchings and by changing their date from November 17 to November 24.
At Sellers’ second preliminary hearing on the first amended complaint, M.R.C. testified that her testimony at the first preliminary hearing was accurate except for the date underlying Count 1 and Count 2. M.R.C. testified that she had remembered a friend’s birthday party the night of November 24, which helped her to identify the correct date. At the conclusion of the evidence in the second preliminary hearing, the district judge determined there was probable cause to believe the touching charged in Counts 1 and 2 occurred on November 24.
The district judge also took up Sellers’ motion for the psychological evaluation of M.R.C. at the second preliminary hearing. Sellers argued that M.R.C. did not tell anyone about the incidents until weeks after they occurred; that there was no corroborating evidence; that M.R.C. and Sellers were having a lot of problems and that M.R.C. had been worried Sellers would take her mother away; and that the first prehminary hearing supported a need for counseling for M.R.C. The State responded by reviewing factors outlined in State v. Price, 275 Kan. 78, 61 P.3d 676 (2003), contending that M.R.C. did not demonstrate mental instability; that she did not demonstrate a lack of veracity; that she had not made similar charges in the past; that Sellers’ motion was merely a fishing expedition; that no other reasons existed to submit M.R.C. for evaluation; and that M.R.C. did not demonstrate difficulty with telling the truth. The district judge found M.R.C. credible, having seen her testify at both preliminary hearings. The judge also found that Sellers overstated the friction between himself and M.R.C. and that there was no history of mental instability on the part of M.R.C. The judge thus denied Sellers’ motion.
Sellers also filed a pretrial motion to the dismiss the charges, arguing that K.S.A. 21-3504(a)(3)(A) and the life imprisonment punishment of Jessica’s Law violated the Due Process and Equal Protection Clauses of the federal Constitution, as well as the federal and state constitutional prohibition on cruel and/or unusual punishment. The district judge presumed the statutes were constitutional and denied the motion. Sellers also moved to dismiss either Count 1 or Count 2 as multiplicitous; the district judge took the motion under advisement.
Trial and Sentencing
At trial, the State called Yoder, M.R.C., Lowe, M.R.C.’s aunt, the mother of M.R.C.’s friend whose birthday party had been on November 24,2007, and C.M. M.R.C. again testified to the events surrounding the Thanksgiving touchings and the Halloween touching. Her trial testimony about the Thanksgiving touchings was consistent with her statement to Yoder and her testimony at the first preliminary hearing, with the exception of the date being November 24 rather than about a week before. Cross-examination of M.R.C. established that she initially believed the Halloween touching to be an accident.
After the State rested, Sellers renewed his motion to dismiss arguing that Jessica’s Law was unconstitutional and that Counts 1 and 2 were multiplicitous. The district judge rejected the Jessica’s Law constitutional challenge and reserved ruling on the multiplicity issue.
The jury found Sellers guilty on Counts 1 and 2 for the Thanksgiving touchings and acquitted Sellers on Count 3 for the Halloween touching.
Sellers filed a motion for departure from the life sentence and mandatory 25-year minimum of Jessica’s Law, arguing that he was a productive member of the community and a noncommissioned military officer with an excellent service record. Sellers also argued that there was little, if any, harm to the victim.
At his sentencing hearing, Sellers again argued that Counts 1 and 2 were multiplicitous. He also argued that the district court should grant him a new trial because the court should have ordered the psychological evaluation of M.R.C. The district judge rejected both arguments, ruling that the two acts of touching underlying Counts 1 and 2 were separate and that the second was motivated by a fresh impulse. The district judge also affirmed the previous rejection of Sellers’ argument that Jessica’s Law was unconstitutional.
Sellers did receive a departure from the life sentence and 25-year mandatory minimum of Jessica’s Law. The district judge handed down a 72-month sentence for Count 1 and a consecutive 59-month sentence for Count 2. The district judge also initially ordered 36 months’ postrelease supervision. After going off the record briefly, the judge reopened the record and corrected the 36-month postrelease period to life. He also imposed lifetime electronic monitoring.
Analysis
Psychological Evaluation of Victim
Sellers argues that the district judge erred in denying his motion for a psychological evaluation of M.R.C. On appeal, the State responds by saying that Sellers was unable to satisfy his burden to show the evaluation was compelled under State v. Gregg, 226 Kan. 481, 602 P.2d 85 (1979).
Our standard of review of the district judge’s decision on such a motion is abuse of discretion. See Price, 275 Kan. at 80 (quoting State v. Rucker, 267 Kan. 816, 821, 987 P.2d 1080 [1999]). Discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court. Price, 275 Kan. at 83 (citing State v. Saiz, 269 Kan. 657, 667, 7 P.3d 1214 [2000]).
Most recently, in State v. Berriozabal, 291 Kan. 568, 581, 243 P.3d 352 (2010), this court stated that the determination of whether compelling circumstances existed to support an order for a psychological evaluation requires an examination of the totality of the circumstances in the case, considering the following nonexclusive list of factors:
“(1) whether there was corroborating evidence of the complaining witness’version of the facts,
“(2) whether the complaining witness demonstrates mental instability,
“(3) whether the complaining witness demonstrates a lack of veracity,
“(4) whether similar charges by the complaining witness against others are proven to be false,
“(5) whether the defendant’s motion for a psychological evaluation of the complaining witness appears to be a fishing expedition, and
“(6) whether the complaining witness provides an unusual response when questioned about his or her understanding of what it means to tell the truth.”
Here, Sellers does not argue that the fourth, fifth, or sixth factors apply. He focuses his arguments on the first three factors, which we discuss in order below.
On the first factor, corroboration, Sellers argues that there is little or no corroborating evidence in this case. Although we agree that M.R.C.’s repetition of her story to her aunt, her mother, and investigators was only repetition and did not qualify as corroboration in the strictest sense of the word, we note that the district judge’s décision to deny the psychological evaluation came at the end of the second preliminary hearing. In that hearing, M.R.C.’s mother testified that she confronted Sellers with M.R.C.’s allegations, and he responded that M.R.C. had given him access to her breasts and moved her hips. Further, when M.R.C.’s mother asked Sellers why he had touched M.R.C., she reported that he had said, “I don’t know[;] I’m sick[;] maybe I like them like that.” M.R.C.’s mother’s testimony also supported peripheral details from M.R.C.’s recitation of her memories from the critical Thanksgiving 2007 weekend. For example, C.M. testified that she lay down for a nap that weekend and that M.R.C. and Sellers eventually joined her on the bed.
Regarding mental instability, Sellers relies in part on M.R.C.’s conflict with him and with her mother. To the extent he does so, a reasonable person could certainly conclude that he is unrealistic in his expectation of constant adolescent equanimity. Heated disagreements between adults and teenagers are more a norm than an aberration; and the existence of such disagreements, without more, does not demonstrate mental instability on the part of the teenagers. M.R.C.’s testimony at trial that her mother had suggested counseling for herself, her mother, and Sellers also does not make a compelling case for teenage mental instability. And we note that the suggestion that M.R.C. could benefit from counseling originated with defense counsel at the first preliminary hearing.
Also in support of the second factor, Sellers asserts that M.R.C. may have been bipolar, but this assertion is nothing more than rank speculation. M.R.C.’s aunt testified at trial that bipolar disorder ran in M.R.C.’s family, and there was discussion during the first prefiminary hearing of M.R.C.’s mother’s depression upon return from her military deployment. There is no testimony anywhere in the record that M.R.C. was ever tested for or diagnosed with this potentially serious mental illness. The mental instability factor demands “demonstrable evidence of a mental condition that requires further investigation, not the mere allegation of some untoward mental condition.” Berriozabal, 291 Kan. at 581.
As to the third factor, lack of veracity, Sellers points to two inconsistencies in M.R.C.’s versions of the Thanksgiving touching.
First, he relies upon M.R.C.’s change of date — from the Saturday before Thanksgiving 2007 to the Saturday after Thanksgiving 2007 — which followed his service of notice of an alibi defense for the first date. Second, he relies upon M.R.C.’s initial statement to Lowe that she and Sellers were alone on the Thanksgiving weekend when Sellers simply walked up to her and touched her, as compared to her statement to Yoder and repeated later testimony that she was on her mother’s bed with her mother when Sellers touched her.
The district judge made findings that guide our view of each of these inconsistencies, and the record on appeal supplies vital additional information.
On the date change, the district judge found that M.R.C.’s mother first suggested the November 17 date and that, upon M.R.C.’s further reflection, the date was corrected to November 24. From this finding and the totality of circumstances revealed by the remainder of the record on appeal, it is apparent that M.R.C. was eventually able to pinpoint the date exactly because she remembered additional details about the weekend after Thanksgiving, including the visit of a friend from out of town.
With regard to the second inconsistency, the district judge found that M.R.C. testified clearly about the circumstances surrounding the Thanksgiving touching and who was present. We also note that the record reflects Lowe’s pertinent characterization of his task in interviewing M.R.C. He testified that he merely took an initial report from M.R.C. and avoided getting too many specific details so that she could tell her story to a detective. In other words, Lowe’s mission was limited. His interview was designed only to determine whether there was an allegation that a crime occurred before referring the case to an investigator. He employed “yes or no” and leading questions to get the necessary information because M.R.C. did not volunteer information herself. The single inconsistency between the story told to him and the subsequent story may have been an artifact of varying interview techniques.
Our Price case considered an allegation of lack of veracity of a complaining witness and noted that the issue was whether the alleged untruthfulness related to the victim’s contact with the defendant. Price, 275 Kan. at 88. Here, the inconsistencies Sellers relies upon do relate to M.R.C.’s contact with him. However, a reasonable person could regard the two inconsistencies at issue here as isolated or “occasional” rather than indicative of general lack of veracity such that a psychological examination was compelled. See Berriozabal, 291 Kan. 568, Syl. ¶ 6 (merely occasional inconsistent statements by complaining witness do not compel psychological evaluátion). We are also appropriately mindful that the district judge, who found no indication of lack of veracity on M.R.C.’s part, had the advantage of observing her demeanor on the witness stand. We, of course, do not.
Having fully reviewed and considered Sellers’ arguments on the three factors relevant to this issue, we hold that the district judge did not abuse his discretion in denying the motion for a psychological evaluation of M.R.C. Sellers did not meet his burden to demonstrate a compelling need for such an evaluation, under the totality of circumstances present in this case.
Multiplicity
The issue of multiplicity is a question of law, and this court’s review is unlimited. State v. Appleby, 289 Kan. 1017, 1026, 221 P.3d 525 (2009) (citing to State v. Thompson, 287 Kan. 238, 243, 200 P.3d 22 [2009]); State v. McCarley, 287 Kan. 167, 177, 195 P.3d 230 (2008). In addition, questions of statutory interpretation and construction, on which multiplicity turns, are reviewed de novo on appeal.
“When reviewing a statute, an appellate court first attempts to give effect to the intent of the legislature as expressed. When the language of a statute is plain and unambiguous, the court must give effect to that language, rather than determine what the law should or should not be. The court will not speculate as to legislative intent or read such a statute to add something not readily found in it. State v. Harris, 284 Kan. 560, 572, 162 P.3d 28 (2007); State v. Post, 279 Kan. 664, 666, 112 P.3d 116 (2005). The court will not resort to canons of statutory construction or consult legislative history if the language of a statute is clear and unambiguous as written. See State v. Robinson, 281 Kan. 538, 539-40, 132 P.3d 934 (2006).” Thompson, 287 Kan. at 243-44.
Sellers argues that Counts 1 and 2 arise from the same conduct and are thus multiplicitous. The State responds that there was a break between the touchings of M.R.C.’s breasts and pubic area and thus the conduct was not unitaiy. In the State’s view, a fresh impulse supported charging the touchings in two counts.
This court has defined multiplicity as “ ‘the charging of a single offense in several counts of a complaint or information.’ ” State v. Schoonover, 281 Kan. 453, 475, 133 P.3d 48 (2006). A two-prong test determines whether convictions are for the same offense: “ ‘(1) Do the convictions arise from the same conduct and, if so, (2) by statutory definition are there two offenses or only one?’ ” Thompson, 287 Kan. at 244 (quoting Schoonover, 281 Kan. at 496). If the convictions are not based upon the same, or unitary, conduct under the first prong, then the analysis ends. Thompson, 287 Kan. at 244.
Our decision in Schoonover provided four guiding factors on the first prong:
“(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.” Schoonover, 281 Kan. at 497.
Sellers believes that the charged acts were part of a single, continuous behavior. The State relies upon Sellers’ exit from the room to check on the dog as a break in the action with significance to the third and fourth factor.
The district judge conceded that this case was a close one on the facts, but he ruled that the exit from the room justified the State’s decision to charge two crimes. He determined that Sellers had to malee a conscious decision to reoffend when he came back into the bedroom and was motivated by a fresh impulse.
The sequence of events underlying Counts 1 and 2 occurred as follows, according to M.R.C.’s trial testimony:
M.R.C. and her mother lay down on her mother’s bed in her mother’s room. M.R.C. was on the right and her mother was on the left. They were lying with their heads on the pillows, and M.R.C. was on her stomach, holding hands with her mother.
• Sellers lay down on his stomach between M.R.C. and her mother. Sellers was positioned on the bed so that his head was about waist-level with M.R.C. and her mother. Sellers puts his arm over M.R.C.’s legs.
• Sellers moved his right hand under M.R.C. and moved it up to her breast where he then moved his hand around.
• Sellers got up from the bed and left the room to check on the dog, who was making noise as though he was tearing up paper in the other room. Sellers was gone for 30 to 90 seconds.
• Sellers returned to the room and lay between M.R.C. and her mother again. He put his hand on the inside of M.R.C.’s left thigh and moved it up toward her pubic area. He reaches her “private part” and wiggled his fingers.
• Sellers stopped again and got up and walked around to M.R.C’s mother’s side of the bed to see if she was still sleeping.
• Sellers walked around to M.R.C.’s side of the bed and started to lift up her shirt.
• M.R.C. squeezed her mother’s hand and woke her.
The first and second Schoonover factors — whether the acts occurred at or near the same time and in the same location — -are clearly met in this case. The fondling of M.R.C.’s breast and the touching of her pubic area occurred within minutes of each other, both on the bed in her mother’s room. The more difficult ques tions, as the parties realize, arise out of the third and fourth Schoonover factors — whether the break to check on the dog in another room was sufficient to constitute an intervening event and whether Sellers formulated a fresh impulse to reoffend in the time between leaving the room and returning to the bed.
This court has considered the question of multiplicity many times in sexual assault cases. In State v. Dorsey, 224 Kan. 152, 156, 578 P.2d 261 (1978), this court held that multiple acts of attempted rape over the course of about 45 minutes resulted in only one count of rape. But subsequent decisions have reached different results. See State v. Richmond, 250 Kan. 375, 378-79, 827 P.2d 743 (1992) (distinguishing Dorsey, holding two counts of rape not multiplicitous despite time frame similar to that in Dorsey); State v. Zamora, 247 Kan. 684, 693-94, 697-98, 803 P.2d 568 (1990) (two rape charges not multiplicitous when digital penetration preceded intercourse); State v. Howard, 243 Kan. 699, 703-04, 763 P.2d 607 (1988) (multiple counts of rape, sodomy not multiplicitous when occurring over span of 90 minutes to 3 hours; when separate, distinct; when occurring in different locations in house; when separated from each other by other sex acts); State v. Wood, 235 Kan. 915, 920, 686 P.2d 128 (1988) (incidents of sexual intercourse separate, distinct when separated by 2 to 3 hours).
However, in State v. Potts, 281 Kan. 863, 872, 135 P.3d 1054 (2006), this court held that a short break between events did not demonstrate the existence of a fresh impulse. We said:
“Although the defendant calmed down momentarily when he laid down on the bed, the record suggests that only a few minutes went by before he told V.H. to perform oral sex on him. All of the acts seemingly stemmed from V.H.’s refusal of Potts’ sexual advances, and the evidence does not demonstrate a fresh impulse motivating some of the conduct. Rather, the evidence demonstrates that the charges arose out of the same continuous transaction involving Potts’ violent reaction to V.H. repeatedly refusing his sexual advances.” Potts, 281 Kan. at 872.
As the district judge noted, this case is a close call. The sequence of events is subject to the interpretation that Sellers checked on the dog, and, for that matter, on the continuing slumber of M.R.C.’s mother, to ensure that no noise impeded his overall plan to molest M.R.C. But he did leave the room for 30 to 90 seconds, breaking the chain of causality and giving him an opportunity to reconsider his felonious course of action. The district judge ultimately determined that Sellers had to make a second conscious decision to touch M.R.C., and, acknowledging the difficulty of this call, we agree. The conduct underlying Counts 1 and 2 was not unitary, and our multiplicity analysis ends here.
Constitutionality of Lifetime Postrelease Supervision
Sellers argues on appeal that the imposition of mandatory lifetime postrelease supervision under Jessica’s Law violated the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights because it constitutes cruel and unusual punishment. We do not reach this issue because it is not preserved for our review.
“Ordinarily, constitutional challenges to a statute raise questions of law subject to unlimited appellate review.” State v. Seward, 289 Kan. 715, 718, 217 P.3d 443 (2009). But constitutional claims must be preserved for appeal by advancement and argument in the district court. See, e.g., State v. Thomas, 288 Kan. 157, 160-61, 199 P.3d 1265 (2008); State v. Ortega-Cadelan, 287 Kan. 157, 161, 194 P.3d 1195 (2008).
Sellers thoroughly preserved the issue of whether the life sentence and mandatoiy minimum of Jessica’s Law violated the federal or state constitutions before the district court. He filed a pretrial motion to dismiss; argued the issue at the opening of trial; renewed his claim to dismissal on the issue at the close of trial; and, finally, challenged those aspects of Jessica’s Law at his sentencing hearing. But all of that careful preservation was aimed at unrealized threats. When the district judge sentenced Sellers, he departed from the life sentence and mandatoiy minimum of Jessica’s Law to the non-drug grid under the sentencing guidelines, as he was expressly permitted to do under K.S.A. 21-4643(d). See also State v. Spencer, 291 Kan. 796, 248 P.3d 256 (2011) (discussing departures from Jessica’s Law, further departures from sentencing grid imprisonment ranges).
Sellers simply never raised a challenge to the constitutionality of lifetime postrelease supervision under Jessica’s Law in the district court. We therefore do not reach the unpreserved issue on this direct appeal.
Lifetime Postrelease Supervision v. 36-Month Term
Sellers next challenges the district judge’s ability to impose a lifetime postrelease supervision term because he believes the district judge lost jurisdiction to impose increased punishment when the record of his sentencing hearing was briefly closed after initial pronouncement of a 36-month postrelease term. In Sellers’ view, his situation also is distinct from that of the Jessica’s Law defendant in State v. Ballard, 289 Kan. 1000, 218 P.3d 432 (2009), in which we affirmed a district judge’s correction of an illegal 36-month postrelease term to a lifetime term, even though 2 weeks had passed between the original imposition and the correction. See Ballard, 289 Kan. at 1012. The defendant in Ballard had entered a no contest plea. Sellers, on the other hand, went to trial, putting every element of the State’s case in issue. This is a distinction with a difference, he argues, because the State failed to prove that he was 18 or older at the time of his crimes. Thus, under State v. Bello, 289 Kan. 191,199-200,211 P.3d 139 (2009), and its progeny, he cannot be subjected to punishment for an off-grid Jessica’s Law offense, including lifetime postrelease.
We exercise unlimited review over jurisdictional questions. See Bello, 289 Kan. at 195-96. Also, to the extent this issue requires us to determine the statutorily authorized postrelease term for off-grid and the grid form of aggravated indecent liberties with a child, we exercise unlimited review. See Ballard, 289 Kan. at 1010 (citing State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 [2008]).
Sellers is correct that a defendant’s age of 18 or older is an element of the off-grid Jessica’s Law aggravated indecent liberties charged in Counts 1 and 2. See K.S.A. 21-3504(a)(3)(A); K.S.A. 21-3504(c) (aggravated indecent liberties with child as described in subsection [a] [3] is a sentencing grid severity level 3 person felony unless offender 18 years of age or older; if offender 18 or older, then aggravated indecent liberties with child as described in subsection [a][3] is an off-grid person felony).
We have excused the State from charging and ensuring jury instruction on the element of a Jessica’s Law defendant’s age only when evidence in the trial record has left no doubt that the omissions made no practical difference in the verdict. See State v. Reyna, 290 Kan. 666, 234 P.3d 761 (2010); State v. Colston, 290 Kan. 952, 235 P.3d 1234 (2010). When there has been no such evidence, we have not been so sanguine. Rather, we have held that the defendant can be exposed to punishment only for the grid form of the crime. See Bello, 289 Kan. at 200; State v. Morningstar, 289 Kan. 488, 213 P.3d 1045 (2009); State v. Gonzales, 289 Kan. 351, 212 P.3d 215 (2009).
In this case, the charging document did not allege that Sellers was 18 or older at the time of the crimes; it did list his year of birth as 1971. There was no evidence of Sellers’ age admitted at trial, other than whatever circumstantial weight could be given to passing mention of his military service with M.R.C.’s mother. The jury instructions on the elements of the aggravated indecent liberties offenses charged in Counts 1 and 2 did not inform jurors that they must agree that Sellers was 18 or older when he molested M.R.C.
At Sellers’ sentencing hearing, the district judge initially imposed a 36-month postrelease supervision term and then went off the record. After what appears to be at most a few minutes, the judge reopened the record and changed the postrelease supervision period to lifetime, stating that he had made a mistake in his initial pronouncement.
A judgment generally is effective upon pronouncement from the bench, and, once imposed, a sentence cannot be increased by the court. See State v. Miller, 260 Kan. 892, 900, 926 P.2d 652 (1996). In Ballard, despite the passage of 2 weeks between pronouncement of a 36-month postrelease term and correction to lifetime postrelease, we did not apply this general rule because a court may correct an illegal sentence that fails to conform to the governing statutory provision at any time under K.S.A. 22-3504. We held that a 36-month postrelease term for an off-grid Jessica’s Law offense would have been illegal, even though the district judge had, under K.S.A. 21-4643(d), departed to the sentencing grid from the usual life sentence and mandatory minimum. Ballard, 289 Kan. at 1012 (nature of sexually violent off-grid crime not changed by departure; defendant therefore could only be subject to lifetime postrelease under K.S.A. 22-3717[d][l][G], rather 36-month postrelease under K.S.A. 22-3717[d][l][A]).
In this case, we are not sure that the general rule on effectiveness of a judgment upon pronouncement would compel us to vacate Sellers’ lifetime postrelease term in favor of a 36-month term. The district judge’s brief closure of the record makes us doubtful. But Sellers’ lifetime postrelease term must be vacated in any event. An illegal sentence may be challenged at any time, and his lifetime postrelease term is illegal. Given the State’s failure to prove Sellers’ age at the time of his crimes, he cannot be subject to lifetime postrelease under K.S.A. 22-3717(d)(l)(G). Rather, he is subject only to the punishment tied to the grid form of aggravated indecent liberties; and that means a 36-month postrelease term under K.S.A. 22-3717(d)(l)(A).
Lifetime Electronic Monitoring
Sellers’ last argument on this appeal focuses on the propriety of the district judge’s specification that he be subject to lifetime electronic monitoring. Because his lifetime postrelease term must be vacated and the case remanded for replacement of the lifetime postrelease term with a 36-month postrelease term, the electronic monitoring element of Sellers’ sentence also must be vacated. On remand, the district judge who resentences Sellers will have the benefit of our intervening decision in State v. Jolly, 291 Kan. 842, 249 P.3d 421 (2011), which discusses electronic monitoring and the entity with the authority to impose it. See Jolly, 291 Kan. at 848; see also K.S.A. 22-3717(u) (lifetime monitoring associated with parole rather than postrelease); K.S.A. 21-4703(p) (Parole Board has authority to set conditions for postrelease).
Conclusion
In view of all of the discussion above, defendant Sellers’ convictions for aggravated indecent hberties are affirmed. The bfetime postrelease and bfetime electronic monitoring portions of his sen tence are vacated, and the case remanded for further proceedings consistent with this opinion.
Convictions affirmed; sentence vacated in part; and case remanded with directions.
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The opinion of the court was delivered by
Nuss, C.J.:
The district court denied Maurice J. Walker s motion to suppress evidence, and a jury convicted him of possession of cocaine and marijuana discovered during a pedestrian stop. The Court of Appeals affirmed. We granted Walker’s petition for review under K.S.A. 20-3018(b).
The issues on appeal and our accompanying holdings are as follows:
1. Did the officer have reasonable suspicion to detain Walker? Yes.
2. Did the officer exceed the scope of the detention by running a records check on Walker? No.
Accordingly, we affirm the decisions of the Court of Appeals and the district court.
Facts
On September 16,2006, Kansas City, Kansas police officer Jason D. Pittman was driving a marked patrol car when a pedestrian, Angel Torono, flagged him down on Central Avenue at 5:55 p.m. Torono did not speak English. With two children translating, he told Officer Pittman that a man burglarized his truck minutes earlier. Torono described the man as “a black male wearing a black shirt and black shorts.” He alleged that the man “broke out the side window of [Torono’s] truck and removed a CD case, then went walking eastbound on Central Avenue from that location.” Pittman asked Torono and the two children to stay put while he searched for the suspect.
Pittman drove in the suspect’s direction of travel: eastbound on Central Avenue. At 10th and Central — approximately two blocks from the crime scene — Pittman spotted Walker, whom he described as “a black male wearing a black t-shirt and black shorts,” sitting next to a bus stop. Pittman parked near the bus stop, exited his car, and approached Walker. According to Pittman, he “told [Walker] the reason I came up to him, that he fit the description of a suspect in an incident that occurred up the street and asked him if he had any identification.”
Pittman and Walker offered conflicting testimony on the rest of their encounter. According to Pittman, he asked Walker for identification, and Walker produced a Missouri ID. Pittman provided Walker’s information to police dispatch for a records check, which revealed an arrest warrant for Walker in Kansas City. Pittman then arrested Walker per the warrant. The resultant search incident to arrest revealed one clear plastic baggy of marijuana and another one of cocaine in Walker’s pockets.
In contrast, Walker testified that he started to remove his backpack to obtain his ID when Pittman placed him under arrest. According to Walker, Pittman then searched the backpack, removed the wallet, and asked Walker to take the ID out of the wallet. Walker replied, “[W]ell, I’m handcuffed. Why do you think I can take it out?” Pittman’s continued search of the backpack revealed a CD with Walker’s initials on it. Walker claims that only after Pittman finished searching the backpack did he run a records check, i.e., once Walker was already under arrest.
Walker admitted ownership of the marijuana. But he claimed he took the cocaine from a kid in an alley and intended to throw it away. Sergeant George Sims arrived to conduct a field test of the two substances found on Walker. Sims testified that the substances tested positive for marijuana and cocaine, while Walker alleges that Sims said they tested negative while on site.
The State charged Walker with one count of possession of cocaine in violation of K.S.A. 65-4160(a) and one count of possession of marijuana in violation of K.S.A. 65-4162(a). Walker filed a pretrial motion to suppress the drug evidence, essentially arguing that Pittman did not have reasonable suspicion to detain him because the description of the suspect was “grossly inadequate.”
. In denying the motion, the district judge stated in relevant part:
“[T]he officer had a legal justification to inquire of a possible suspect who matched the description of the perpetrator of a crime only minutes before. It was a detention. He ascertained his identity. The defendant cooperated. He gave him some sort of a Missouri identification card.
“At that point, the officer found out there was an active arrest warrant for the defendant. At that point in time, the arrest was legal, it was constitutional, and the subsequent search was legal and constitutional.”
A jury found Walker guilty on both counts. He appealed, but a Court of Appeals panel affirmed his convictions in State v. Walker, 41 Kan. App. 2d 337, 202 P.3d 685 (2009). We granted Walker’s petition for review.
More facts will be added as necessary to the analysis.
Analysis
Issue 1: The officer had reasonable suspicion to detain Walker.
Walker argues that the district court erred in denying his motion to suppress. He contends that the encounter with Officer Pittman was not only an investigatory detention but it was also unsupported by reasonable suspicion of criminal activity. Walker specifically argues that a reasonable person would not feel free to terminate an encounter with a police officer after learning he or she is a possible suspect in criminal activity. Walker further argues that the suspect’s description — a black male wearing a black shirt and black shorts— was insufficient to provide Pittman with a reasonable and articulable suspicion that Walker committed a crime. Walker particularly points to the fact that his shirt was dark blue, with a picture of Mickey Mouse on the front. Consequently, Walker demands that all evidence obtained be excluded as fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963).
The State responds that the encounter was consensual and did not become an investigatory detention until Pittman discovered Walker’s arrest warrant. In the alternative, if the encounter was an investigatory detention from the onset, the State argues that Pittman possessed reasonable suspicion. It points out that Walker matched the suspect’s description, he was the only person Pittman saw matching the description, he was located within minutes of the crime, and he was found just two blocks away.
Standard of Review
When reviewing general motions to suppress evidence, we employ the following standard of review:
“ ‘ “ ‘[T]his court reviews the factual underpinnings of a district court’s decision for substantial competent evidence and the ultimate legal conclusion drawn from those facts de novo. The ultimate determination of the suppression of evidence is a legal question requiring independent appellate review. [Citation omitted.] The State bears the burden to demonstrate that a challenged search or seizure was lawful. [Citation omitted.]’ ” ’ ” State v. Thomas, 291 Kan. 676, 682, 246 P.3d 678 (2011) (quoting State v. McGinnis, 290 Kan. 547, 551, 233 P.3d 246 [2010]).
Walker contends that the facts material to our decision are not in dispute and, therefore, the question of whether to suppress is a question of law. See, e.g., State v. Ingram, 279 Kan. 745, 113 P.3d 228 (2005). But as noted above, the parties disagree on when Walker was arrested during the encounter and on the results of the field tests. As a result, we will employ the mixed standard recently affirmed in State v. Thomas.
Valid Investigatory Detention
Similar to our recent holdings in Thomas and McGinnis, the present case concerns an officer’s questioning and eventual arrest of a pedestrian. We established our analytical framework in McGinnis:
“The United States Supreme Court has developed a ‘totality of the circumstances’ test to determine if there is a seizure, or instead a consensual encounter. See State v. Thompson, 284 Kan. 763, 775, 166 P.3d 1015 (2007). ‘[UJnder the test, law enforcement interaction with a person is consensual, not a seizure if, under the totality of the circumstances, the law enforcement officer’s conduct conveys to a reasonable person that he or she was free to refuse the requests or otherwise end the encounter.’ 284 Kan. at 775. Stated another way, ‘ “[s]o long as a reasonable person would feel free to ‘disregard the police and go about his business,’ [citation omitted], the encounter is consensual and no reasonable suspicion is required.” ’ State v. Reason, 263 Kan. 405, 410, 951 P.2d 538 (1997) (quoting Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 115 L. Ed. 2d 389 [1991]). Consequently, in Reason we held that only if ‘ “ ‘the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a “seizure” has occurred.’ ” ’ 263 Kan. at 410-11.
‘We begin our analysis by acknowledging that a seizure does not occur simply because a police officer approaches an individual and asks a few questions:
‘[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, [or] by putting questions to him if the person is willing to listen .... [Citations omitted.] Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification. [Citation omitted.] The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way. [Citations omitted.]’ Florida v. Royer, 460 U.S. 491, 497-98, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983).’
See Thompson, 284 Kan. 763, Syl. ¶ 17 (‘Law enforcement questioning, by itself, is unlikely to result in a Fourth Amendment violation. Unless the surrounding conditions are so intimidating as to demonstrate that a reasonable person would have believed he or she was not free to disregard the questions, there has been no intrusion upon the detained person’s liberty or privacy that would implicate the Fourth Amendment.’).
“Accordingly, over the years we have recognized several objective factors to help determine whether a law enforcement-citizen encounter is voluntary or an investigatory detention. This nonexhaustive and nonexclusive list includes: the presence of more than one officer, the display of a weapon, physical contact by the officer, use of a commanding tone of voice, activation of sirens or flashers, a command to halt or to approach, and an attempt to control the ability to flee. See State v. Lee, 283 Kan. 771, 775, 156 P.3d 1284 (2007); State v. Morris, 276 Kan. 11, 19-20, 72 P.3d 570 (2003); State v. Gross, 39 Kan. App. 2d 788, 798-800, 184 P.3d 978 (2008).
“There is no rigid application of these factors; instead, we analyze the facts of each case independently. We have held that ‘[i]n applying the totality of the circumstances test in a Fourth Amendment context, no one factor is legally determinative, dispositive, or paramount. The outcome does not turn on the presence or absence of a single controlling or infallible touchstone and requires careful scrutiny of all the surrounding circumstances.’ Thompson, 284 Kan. 763, Syl. ¶ 20. On the other hand, we do not expect courts to merely count the number of factors weighing on one side of the determination or the other. In the totality of the circumstances, a factor may be more indicative of a coercive atmosphere in one case than in another. [Citations omitted.]’ 284 Kan. at 804.” McGinnis, 290 Kan. at 552-53.
Walker contends that a reasonable person would not have felt free to refuse the requests or otherwise end the encounter under the totality of the circumstances. This specific subset of suppression determinations — the trial court’s determination of whether the encounter is consensual or a seizure — is also a mixed question of fact and law. McGinnis, 290 Kan. at 552. We agree with Walker that the encounter was a seizure.
In McGinnis, an officer approached the defendant and asked if he had knowledge or information about a partially submerged vehicle nearby. The officer did not initially suspect the defendant of criminal activity and did not mention to him that the submerged vehicle was allegedly stolen. We determined the officer’s question was innocuous and that under all the circumstances, the encounter was voluntary. We reiterated that a court must consider all the circumstances surrounding the encounter “ ‘ “to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ request or otherwise terminate the encounter.” ’ ” (Emphasis added.) 290 Kan. at 556 (quoting State v. Reason, 263 Kan. at 411).
Here, by contrast, Pittman approached Walker to confirm or dispel Pittman’s belief that Walker might be the person who broke into Torono’s truck. Pittman also immediately conveyed his intentions to Walker: Pittman told Walker he was talking to Walker because he fit the suspect’s description in a nearby criminal inci dent and immediately asked for Walker s ID. Consequently, unlike the officer in McGinnis, Pittman’s statement and accompanying question were not innocuous. Under these circumstances, we conclude that a reasonable person in Walker’s position would not feel free to refuse Pittman’s request or otherwise terminate the encounter. Cf. State v. Thompson, 284 Kan. at 804 (“[W]e do not expect courts to merely count the number of factors weighing on one side of the determination or the other. In the totality of circumstances, a factor may be more indicative of a coercive atmosphere in one case than in another.”).
Nevertheless, investigatory detentions are generally permitted under the Fourth Amendment to the United States Constitution and K.S.A. 22-2402 if “ ‘an objective officer would have a reasonable and articulable suspicion that the detainee committed, is about to commit, or is committing a crime.’ ” Thomas, 291 Kan. 676, 687, 246 P.3d 678 (2011) (quoting State v. Pollman, 286 Kan. 881, 889, 190 P.3d 234 [2008]).
The district court essentially held that reasonable suspicion existed: “[T]he officer had a legal justification to inquire of a possible suspect who matched the description of the perpetrator of a crime only minutes before.” We recently discussed considerations for how “reasonable suspicion” is evaluated in Thomas, 291 Kan. 687-88, where we stated:
“What is reasonable is based on the totality of the circumstances and is viewed in terms as understood by those versed in the field of law enforcement.’ [quoting State v. Toney, 253 Kan. 651, 656, 862 P.2d 350 (1993)]
“ ‘[W]e judge the officer’s conduct in light of common sense and ordinary human experience. [Citation omitted.] “Our task ... is not to pigeonhole each purported fact as either consistent with innocen[ce] ... or manifestly suspicious,” [citation omitted], but to determine whether the totality of the circumstances justify the detention. [Citation omitted.] We make our determination with deference to a trained law enforcement officer’s ability to distinguish between innocent and suspicious circumstances, [citation omitted], remembering that reasonable suspicion represents a “minimum level of objective justification” which is “considerably less than proof of wrongdoing by a preponderance of the evidence.” ’ ” 263 Kan. at 734-35 (quoting United States v. Mendez, 118 F.3d 1426, 1431 [10th Cir. 1997]; citing United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 104 L. Ed. 2d 1 [1989]).’
“Similarly, the United States Supreme Court has stated:
‘While ‘reasonable suspicion’ is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification .... [Citation omitted.] The officer must be able to articulate more than an ‘inchoate and unparticularized suspicion or “hunch” ’ of criminal activity. [Citation omitted.]” Illinois v. Wardlow, 528 U.S. 119, 123, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000).’ Moore, 283 Kan. at 354-55.
Whether reasonable suspicion exists is a question of law. We use a mixed question standard of review, determining whether substantial competent evidence supports the district court’s findings, while the legal conclusion is reviewed de novo. Moore, 283 Kan. at 350 (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 134 L. Ed. 2d 911 [1996]).”
In support of Walker’s position that the district court erred and that Pittman did not possess reasonable suspicion, Walker cites State v. Anguiano, 37 Kan. App. 2d 202, 151 P.3d 857 (2007). There, an officer was on patrol on St. Patrick’s Day when he noticed a pedestrian that “semifit” the description of a wanted man. “The description included only that the [wanted] man was Hispanic and wearing a coat and ‘dark-type green colored pants.’ ” 37 Kan. App. 2d at 203.
The pedestrian, Anguiano, was wearing dark-colored, grayish-green pants and a coat. The officer stopped his patrol car by the pedestrian and asked for his name and origin of travel. The officer thought Anguiano’s direction of travel was inconsistent with his answer given. As a result, the officer asked for identification and ran the information through dispatch “for aliases or outstanding warrants.” The opinion does not indicate the response, if any, dispatch provided to the alias and warrants check. But Anguiano consented to a search of his person, which produced cocaine. 37 Kan. App. 2d at 203-04.
The Anguiano court held that the encounter was not only an investigatory detention, but also that Anguiano’s “semifit" of the description provided was insufficient to form reasonable suspicion. The court opined:
“[T]he description is so nonspecific or generic in nature as to defy reasonable suspicion of criminal activity. Not only did the officer admit that Anguiano’s pants were ‘grayish-green’ radier than ‘dark-type green,’ merely being Hispanic and wearing a coat with green pants may have described much of the population of Seward County on St. Patrick’s Day.” 37 Kan. App. 2d at 207.
In the instant case, the Court of Appeals panel distinguished Anguiano, writing:
“[T]he sole basis for [Anguiano’s] detention was a ‘semifit’ general description. Here, the victim gave Officer Pittman the direction the suspect was last seen traveling. The crime occurred only a few minutes prior to Officer Pittman’s arrival. And unlike in Anguiano, September 16 is not traditionally a day when individuals dress similarly by wearing dark-colored clothes.” 41 Kan. App. 2d at 341-42.
For the reasons given by the panel, we agree that Anguiano is distinguishable from the present case. We further note that pedestrian Walker was located in the direction the suspect had been said to flee on foot, within 5 minutes and two blocks of the reported crime. Accordingly, we find better guidance in State v. Baker, 239 Kan. 403, 720 P.2d 1112 (1986), and State v. Glass, 40 Kan. App. 2d 379, 192 P.3d 651 (2008).
In Baker, while the armed robbers of a gas station fled, the clerk called the police. Dispatch informed officers of an armed robbery by two black men in black jackets and blue jeans. Two officers, located 16 blocks from the reported robbery, then drove toward the robbery on separate side streets they believed could be used for a getaway. One officer saw no traffic until he observed a white automobile with three black males in dark clothes approaching from the direction of the robbery. He decided to check the vehicle and its occupants further. The officer followed the automobile to the next intersection, where it was parked at the curb with the lights out. As the officer approached, the lights on the automobile turned on in preparation for leaving. He activated his emergency lights and ordered the occupants out. All were in dark clothing: at least two were in black jackets and blue jeans.
The Baker court held that although the report was of two robbers and there was no indication of how they made their getaway, it was not unreasonable for the officers to anticipate the robbers fled in a waiting vehicle with a third person acting as the wheelman. In light of all the information available to the officer, when coupled with the officer’s background, training, and experience, we determined that he possessed reasonable suspicion to make the stop.
In Glass, police dispatch described two suspects, within 30 seconds of a reported liquor store robbery, as “black males wearing white t-shirts and black hooded zip-up jackets, who left westbound on foot around the building.” 40 Kan. App. 2d at 380. A few blocks from the liquor store and within 1 minute of receiving the dispatch, an officer noticed a lone vehicle traveling away from the crime scene. The officer drove past the vehicle, shone a fight inside, and noticed “two black males in the front seat. One was wearing a white t-shirt and the other was wearing a black outfit.” The officer stopped the car, and eventually arrested the occupants after finding one was stuffing something between seat and console and another had a large sum of money fall out of his lap. 40 Kan. App. 2d at 380-81.
The Glass panel rejected the defendant’s motion to suppress and determined that the officer possessed reasonable suspicion to stop the vehicle based on five factors. First, as in Baker, the information given to police was reputable and from an identified citizen. Second, similar to Baker, the officer observed the suspect vehicle traveling away from the crime scene using a known “back way.” Third, “mirroring the facts in Baker,” the officer located the vehicle within 1 minute of the reported robbeiy and only a few blocks from the crime scene. Indeed, it was the only vehicle in the area observed by the officer. Fourth, unlike Baker, the officer noticed two black males inside the vehicle “identical to [the citizen’s] description of the number, race, and sex of the robbers.” Fifth, akin to Baker, one of the occupants was wearing dark clothing, consistent with the suspect’s description. 40 Kan. App. 2d at 385-86.
In considering the facts, rationale, and holdings of Baker and Glass, and viewing the totality of the circumstances, we conclude as a matter of law Pittman possessed reasonable suspicion to detain Walker. Moore, 283 Kan. at 350. First, Pittman received information from an identified citizen, Torono. Second, although Walker was not found while traveling away from the crime scene, he was found sitting at a bus stop east of the crime — the direction Torono told Pittman the suspect had fled on foot. Third, Walker was located within 5 minutes and within two blocks of the reported crime. Fourth, Walker was found sitting alone: identical to Torono’s description of the race, gender, and number of the suspects, i.e., one black male. Fifth, Walker was dressed in dark shorts and t-shirt, consistent with the description provided.
Walker primarily argues that Torono’s description was overbroad and that Walker did not match it. More particularly, he contends his shirt’s color was midnight blue and featured Mickey Mouse on its front. However, we hold it is possible that someone could identify the shirt as black and similarly fail to mention Mr. Mouse if the shirt had been viewed from behind. Indeed, when Torono saw Walker at the scene and Pittman later spotted Walker at the bus stop, they each described the clothes as black shirt and black shorts.
We observe that other jurisdictions have found reasonable suspicion based on similar descriptions of the suspect’s clothing, in light of the totality of the circumstances. See, e.g., Commonwealth v. Dargon, 457 Mass. 387, 930 N.E.2d 707 (2010) (suspect was wearing blue jacket with white markings and fled toward waterfront); People v. Ross, 317 Ill. App. 3d 26, 28, 739 N.E.2d 50 (2000) (suspect described as “black man wearing blue shirt and pants” was found one half-block away from reported crime scene); State v. Taylor, 965 S.W.2d 257, 259 (Mo. Ct. App. 1998) (suspect described as “black male wearing a black skullcap, a full length black coat, and having his right hand in his front coat pocket” was found three blocks from reported crime within minutes of report).
Issue 2: Officer Pittman’s records check did not exceed the scope of the legally commenced detention.
Walker next argues that if the stop was supported by reasonable suspicion, that Officer Pittman exceeded its scope. More specifically, Walker contends that the purpose of the encounter-was to investigate the alleged burglary and that Pittman abandoned that investigation when he conducted a general and unrelated records check.
The State responds that police, in general, should be permitted to run such checks during investigatory detentions to “determine who [the officer] was talking with and whether that person ha[s] a history [the officer] should be aware of.” We observe that the United States Supreme Court has held: “[I]f there are articulable facts supporting a reasonable suspicion that a person has committed a criminal offense, that person may be stopped in order to identify him, . . . or to . . . obtain additional information.” Hayes v. Florida, 470 U.S. 811, 816, 105 S. Ct. 1643, 84 L. Ed. 2d 705 (1985).
The Court of Appeals panel acknowledged K.S.A. 22-2402(a) which provides that, when stopping a suspect whom an officer reasonably suspects is committing, has committed, or is about to commit a crime, the officer may demand the suspect’s name, address, and an explanation of the suspect’s action. The panel also acknowledged the statute does not expressly authorize running a computer records check on the pedestrian suspect, although this court has authorized drivers’ records checks during traffic stops for which reasonable suspicion exists. See, e.g., State v. Smith, 286 Kan. 402, 410, 184 P.3d 890 (2008); State v. DeMarco, 263 Kan. 727, 952 P.2d 1276 (1998); State v. Damm, 246 Kan. 220, 787 P.2d 1185 (1990).
The panel held that Pittman’s records check did not exceed the permissible scope of the encounter. Noting that no Kansas case discusses the validity of a records check during a police-pedestrian encounter, the panel adopted the rationale of the court in United States v. Villagrana-Flores, 467 F.3d 1269 (10th Cir. 2006), cert. denied 549 U.S. 1149 (2007).
In Villagrana-Flores, an officer detained the defendant, whom he believed was a danger to himself and others. During the detention, the officer ran a warrants check which revealed outstanding warrants and prior deportations on the defendant. After determining that the encounter was a valid Terry stop, the court analyzed whether the officer was justified in using defendant’s identification to run the warrants check during the course of the stop. “In other words, we must determine whether running a warrants check was ‘reasonably related in scope to the circumstances which justified the interference in the first place.’ ” 467 F.3d at 1276.
The Villagrana-Flores court extended its reasoning from traffic stop cases, in which an officer has the right to run a background check on drivers unrelated to the purpose of the stop, to police-pedestrian encounters. The court reasoned that both types of encounters implicate officer safety, and the officer in both situations has a “strong interest in knowing whether th[e] individual has a violent past or is currently wanted on outstanding warrants.” 467 F.3d at 1277. Such a result “also promotes the strong government interest in solving crimes and bringing offenders to justice.’ [Citation omitted.]” 467 F.3d at 1277. The court observed in a footnote that “the Fourth Amendment is not implicated simply because a name, legally obtained, is later used to run a criminal background check. That action is neither a search nor a seizure, for there is no legitimate expectation of privacy in one’s criminal history.” 467 F.3d 1277 n.4.
See also United States v. Vance, 553 F. Supp. 2d 1308, 1318 (D. Utah 2008) (citing Villagrana-Flores, holding the officer’s decision to run a warrants check on defendant after the investigatory detention began was not violation of defendant’s Fourth Amendment rights); see, e.g., State v. Markland, 112 P.3d 507, 513-14 (Utah 2005) (warrants check within permissible scope of justified detention of pedestrian can quickly provide highly relevant information that serves to either heighten or alleviate the suspicion that originally justified the check and can also prove invaluable to officer safety). Contra, United States v. Luckett, 484 F.2d 89, 90-91 (9th Cir. 1973) (holding jaywalker for warrant check unreasonable without reason to suspect there may be outstanding warrant).
While these cases are of some utility, we note that they all predate the United States Supreme Court’s decision in Arizona v. Johnson, 555 U.S. 323, 129 S. Ct. 781, 172 L. Ed. 2d 694 (2009). We included Johnson in our analysis in State v. Morlock, 289 Kan. 980, 218 P.3d 801 (2009). There, we expressly approved law enforcement’s running of a records check on a vehicle passenger when reasonable suspicion existed for him independent of the initial reason for the legitimate traffic stop. We have not yet expressly approved such checks, as here, on pedestrians stopped by police for which reasonable suspicion exists. We find Morlock and Johnson of guidance on this issue.
As the Morlock court observed, Johnson permitted an officer, in the context of traffic stops, to inquire into passenger “matters unrelated to the justification for the ... stop,” i.e., without reasonable suspicion, “ ‘so long as those inquiries do not measurably extend the duration of the stop.’ ” 289 Kan. at 987 (quoting Johnson, 129 S. Ct. at 788). Johnson relied upon Muehler v. Mena, 544 U.S. 93, 125 S. Ct. 1465, 161 L. Ed. 2d 299 (2005).
Muehler, in turn, relied upon Illinois v. Caballes, 543 U.S. 405, 125 S. Ct. 834, 160 L. Ed. 2d 842 (2005), which held that, without more, a drug dog sniff performed during a lawfully commenced traffic stop did not violate the Fourth Amendment. The Muehler court essentially held that law enforcement officers could ask questions unrelated to the purpose of executing a residential search warrant — without reasonable suspicion — as long as the questions did not prolong the search:
“Because we held [in Caballes] that a dog sniff was not a search subject to the Fourth Amendment, we rejected the notion that ‘the shift in purpose’ . . . was unlawful because it was not supported by a reasonable suspicion.’ Id. at 408.” (Emphasis added.) Muehler, 544 U.S. at 101.
Using this Supreme Court framework, we determined in Morlock that certain questions asked of the passenger did not exceed the traffic stop’s constitutionally permissible boundaries. More important to the instant case, we also determined that the deputy sheriffs taking passenger Morlock’s driver’s license to his patrol vehicle and using it to run a warrants check on the vehicle computer was likewise constitutionally permissible. We specifically held that the computer check was warranted by the deputy’s reasonable suspicion of passenger Morlock based upon Morlock’s own conduct and verbal responses. 289 Kan. at 995-99.
In the instant case, we previously concluded as a matter of law that under the totality of the circumstances, Officer Pittman had reasonable suspicion to detain and investigate pedestrian Walker for allegedly breaking Torono’s truck window and stealing a CD case. Based upon Morlock and the United States Supreme Court authority it cites, we likewise readily conclude Pittman did not exceed the detention’s constitutionally permissible boundaries by taking Walker’s ID and using it to run a computer records check.
Walker disputes the sequence of these events, e.g., he claims he was arrested and his backpack was searched before Pittman ran the records check. However, the district judge’s sequential findings indicate he believed Pittman: “he [defendant] gave him some sort of Missouri identification card. At that point, the officer found out there was an active arrest warrant for the defendant. At that point in time, the arrest was legal
The court’s findings are supported by substantial competent evidence. State v. Thomas, 291 Kan. 676, 246 P.3d 678 (2011). We do not weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact. We also accept as true all inferences to be drawn from the evidence which support or tend to support the findings of the district court. U.S.D. No. 233 v. Kansas Ass’n of American Educators, 275 Kan. 313, 320, 64 P.3d 372 (2003).
In light of our ruling, we need not reach the final issue raised in the briefs: whether Pittman’s discovery of the outstanding arrest warrant precludes application of the exclusionaiy rule.
Affirmed.
Paul E. Miller, District Judge, assigned. | [
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The opinion of the court was delivered by
Beier, J.:
Defendant Kevin Gatlin appeals his conviction for intentional aggravated battery causing disfigurement under K.S.A. 21-3414(a)(l)(A), which arose out of a bar fight in which Gatlin bit off the tip of another man’s thumb. Gatlin argues that the district judge erred in failing to instruct the juiy on recklessness and the lesser included crimes of reckless aggravated batteiy under K.S.A. 21-3414(a)(2)(A) and (B). We reverse his conviction and remand to the district court for a new trial.
Factual and Procedural Background
George Hoffman -and Gatlin were the combatants involved in a fight outside the Tradewinds Bar in Garnett, Kansas. The men’s stories vary on how the fight began and how Hoffman’s thumb was severed.
Hoffman testified that he left the bar about 2 a.m. to look for his brother and Gatlin struck him in the temple without provocation. Hoffman pushed Gatlin away in an attempt to defend himself, at which point several other people tried to separate the two men. During the scuffle, Hoffman and Gatlin were “grappling or wrestling” when they both fell to the ground, and Hoffman’s left thumb somehow ended up in Gatlin’s mouth. While on the ground Gatlin was on top of Hoffman, straddling him, and Gatlin was holding down Hoffman’s right arm with both of his own. Hoffman tried to pull his thumb out and push Gatlin off of him. Hoffman stopped struggling and pleaded with Gatlin to stop biting his thumb, at which point Gatlin bit Hoffman’s thumb off with a “crazed look on his face.” It took 5 to 10 seconds from the time he and Gatlin hit the ground until Hoffman’s thumb injury occurred.
In contrast, Gatlin testified that, as he attempted to leave the bar, Hoffman and a woman were talking on the stoop outside the exit, blocking Gatlin’s path. When the couple did not acknowledge him, Gatlin moved Hoffman out of the way by nudging him. Hoffman got mad and started pushing Gatlin. A shoving match ensued; Gatlin hit Hoffman; Hoffman swung back; and, as Gatlin ducked, Hoffman put him in a chokehold. At this point, Hoffman’s thumb somehow ended up in Gatlin’s mouth. The two men were positioned facing each other, and Hoffman increased the pressure on the chokehold, lifting Gatlin off the ground. Gatlin bit Hoffman’s thumb in the hope that Hoffman would release him from the chokehold. At some point, the two men fell to the ground — Hoffman falling backward and Gatlin falling forward — and Gatlin’s head “slammed” against the street, causing him to bite down and sever Hoffman’s thumb.
Officer Kurt King responded to the fight at the bar. King testified that, when he arrived, Hoffman approached him and stated that Gatlin bit his thumb off, specifically pointing to Gatlin. Gatlin then told Officer King, “I bit his fucking finger off. Take me to jail.” Gatlin admitted to making this statement to Officer King but explained that he did so to persuade Officer King to remove him from the danger of the fight. Three more times throughout the police investigation that would follow, Gatlin admitted to biting someone’s thumb off. At one point during the investigation, an officer was making a tape recording of Gatlin’s statements and Gatlin bent down to the recorder to speak directly into it, stating that he “bit the guy’s thumb off.”
Gatlin was charged with intentional aggravated battery causing disfigurement under K.S.A. 21-3414(a)(l)(A), among other offenses. While both Hoffman and Gatlin testified on the first day of trial, Hoffman testified earlier, during the State’s case-in-chief. Gatlin testified later, during the defense case.
The district judge discussed juiy instructions with counsel five different times during trial.
At the conclusion of the State’s case-in-chief on the first day, Gatlin requested a definition of recklessness with the lesser included offenses of aggravated batteiy under K.S.A. 21-3414(a)(2)(A) and (B), i.e., reckless aggravated batteiy that did or could have caused disfigurement or great bodily harm. Gatlin argued that the recklessness instructions were appropriate because a jury could decide that becoming intoxicated, getting into a fight, and holding someone’s thumb in your mouth were reckless acts and that it would be foreseeable for the person’s thumb to be bitten off. The district judge stated that instructing on reckless aggravated batteiy was not appropriate because biting someone’s thumb seemed intentional, concluding that the only appropriate lesser included offenses would be intentional aggravated battery that could have caused disfigurement and simple battery. The judge did not finally rule on the instructions at this time, however.
At the end of the first day of trial, the district judge again discussed the propriety of instructions for the lesser offenses of intentional aggravated battery that could have caused disfigurement and simple battery. Gatlin did not renew his argument for recklessness-based lesser included offenses during this second discussion.
The district judge raised the subject of instructions a third time the following morning. Gatlin renewed his argument for the recklessness instruction and the recklessness-based lesser included of fenses. The district judge again said that the evidence suggested Gatlin s act was intentional and concluded that the requested instructions would not be given.
The district court reviewed jury instructions for a fourth time at the close of the defense case. The district court read the final version of the instructions to counsel for both parties, asking for additional proposed instructions and any objections. Gatlin did not object when the court read the aggravated battery instructions without the recklessness-based lesser included instructions.
After the State’s rebuttal, the court discussed jury instructions for a fifth and final time, asking counsel if they had any objections before the court read the instructions to the jury. Gatlin’s counsel answered no. The court thus gave lesser included instructions only on intentional aggravated battery that could have caused disfigurement and simple battery.
On appeal to the Court of Appeals from Gatlin’s jury conviction for intentional aggravated battery causing disfigurement, the panel ruled that Gatlin failed to preserve the issue of failure to instruct on recklessness-based lesser included offenses. State v. Gatlin, No. 99,091, 2009 WL 596601, at *1-2 (Kan. App. 2009) (unpublished opinion). The panel thus applied a clearly erroneous standard. Gatlin, 2009 WL 596601, at *2. Gatlin argued that the district court erred by failing to give the two specific lesser included offense instructions, one for reckless aggravated battery under K.S.A. 21-3414(a)(2)(A) that did cause disfigurement or great bodily harm and one for reckless aggravated battery under K.S.A. 21-3414(a)(2)(B) that could have caused disfigurement or great bodily harm. The Court of Appeals held that there was no real possibility the jury would have reached a different result had the instructions been given, because “Gatlin did not show by his testimony and evidence that he had a conscious and unjustifiable disregard of the danger which would justify the giving of the two reckless aggravated battery instructions.” 2009 WL 596601, at *3.
We granted Gatlin’s petition for review.
Analysis
When an appeal turns on whether the district judge erred by failing to instruct on a lesser included crime, our standard of review varies depending on whether the appealing party preserved the issue below.
We apply a clearly erroneous standard, “unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds of the objection.” K.S.A. 22-3414(3). “Instructions are clearly erroneous only if the reviewing court is firmly convinced there is a real possibility that the jury would have rendered a different verdict if the error has not occurred.” State v. Vasquez, 287 Kan. 40, Syl. ¶ 6, 194 P.3d 563 (2008).
When the issue has been preserved, we review the trial evidence in the light most favorable to the defendant. State v. Jones, 283 Kan. 186, 207-08, 151 P.3d 22 (2007); see State v. Young, 277 Kan. 588, 599-600, 87 P.3d 308 (2004); State v. Boone, 277 Kan. 208, 220-21, 83 P.3d 195 (2004). A district court must instruct the jury on lesser included crimes when there is some evidence that would reasonably justify a conviction of some lesser included crime. K.S.A. 22-3414(3). State v. Foster, 290 Kan. 696, 710, 233 P.3d 265 (2010). But an “instruction need not be given if the evidence would not have permitted a rational factfinder to find the defendant guilty” of the lesser offense. Young, 277 Kan. at 599. Generally, this court does not weigh evidence or determine the credibility of witnesses. Hodges v. Johnson, 288 Kan. 56, 65, 199 P.3d 1251 (2009).
In this case, Gatlin s counsel made two specific requests during trial for recklessness-based lesser included instructions, both times explaining the rationale behind the requests. It was not necessary for him to repeat what had become a fruitless exercise three more times in order to preserve the issue for appellate review. He had made his position clear to the district judge and given him ample opportunity to rule correctly. See State v. Boyd, 257 Kan. 82, 89, 891 P.2d 358 (1995). This situation is distinct from those in which a precise evidentiary objection must be contemporaneous with admission under K.S.A. 60-404. See State v. King, 288 Kan. 333, Syl. ¶ 5, 204 P.3d 585 (2009).
The pertinent language of K.S.A. 21-3414(a)(2)(A) and (B) defining reckless aggravated battery states that it is: “(A) recklessly causing great bodily harm to another person or disfigurement of another person; or (B) recklessly causing bodily harm to another person ... in any manner whereby great bodily harm, disfigurement or death can be inflicted.” Reckless conduct is “conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger.” K.S.A. 21-3201(c). To act recklessly, a defendant must know that he or she is putting others in imminent danger, State v. Jenkins, 272 Kan. 1366, 1375, 39 P.3d 47 (2002), but need not foresee the particular injury that results from his or her conduct. State v. McCoy, 34 Kan. App. 2d 185, 194, 116 P.3d 48 (2005) (citing State v. Davidson, 267 Kan. 667, 682-84, 987 P.2d 335 [1999]). By contrast, intentional conduct is purposeful, willful, and not accidental. K.S.A. 21-3201(b).
Viewing the evidence at trial in a light most favorable to Gatlin, a reasonable juiy instructed on the elements of the two types of reckless aggravated battery and the definition of recklessness could have concluded that Gathn engaged in reckless conduct and did not intentionally sever Hoffman’s thumb. He may have chosen to continue biting Hoffman’s thumb to persuade Hoffman to release the chokehold, knowing that this put Hoffman in danger and yet consciously disregarding that danger; or he may have chosen to allow Hoffman’s thumb to remain in his mouth as the two men struggled, knowing but consciously disregarding the danger that they would lose their balance and hit the ground. Under Kansas’ definition of recklessness, Gatlin need not have foreseen the specific harm that Hoffman suffered — losing the tip of his thumb. Although the circumstantial evidence supporting recklessness comes solely from the testimony of Gatlin, this is all that Kansas law requires before a lesser included crime instruction is warranted. See State v. Johnson, 290 Kan. 1038, 1042, 236 P.3d 517 (2010) (defendant entitled to instruction on theory of case even though evidence slight, supported only by defendant’s testimony).
We acknowledge that there was also ample evidence at trial that the act of biting off Hoffman’s thumb was intentional, but neither the district judge’s nor this court’s task in this case is to weigh evidence or determine the credibility of witnesses. And there is no evidence so damning as to prevent a rational juror from believing that Gatlin’s behavior was reckless rather than intentional.
Given all of the discussion above, we hold that the district court committed reversible error in refusing to instruct on the definition of recklessness and the recklessness-based lesser included offenses sought by Gatlin and his counsel. We therefore reverse the decision of the Court of Appeals, reverse Gatlin’s aggravated battery conviction under K.S.A. 21-3414(a)(l)(A), and remand to the district court for a new trial.
Davis, C.J., not participating.
William B. Elliott, District Judge, assigned. | [
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On November 19, 2010, this court suspended the petitioner, Charles T. Frahm, from the practice of law in Kansas for a period of 3 years. See In re Frahm, 291 Kan. 520, 241 P.3d 1010 (2010). This court made the suspension effective as of the date of the temporary suspension order, April 1, 2008.
Before reinstatement, the petitioner was required to pay the costs of the disciplinary action, comply with Supreme Court Rule 218 (2010 Kan. Ct. R. Annot. 370), and otherwise comply with Supreme Court Rule 219 (2010 Kan. Ct. R. Annot. 370).
On April 27, 2011, the petitioner filed a motion for reinstatement. After careful consideration, this court grants Frahm’s motion and reinstates him to the practice of law in Kansas.
It Is Therefore Ordered that Frahm be reinstated to the practice of law in the state of Kansas conditioned upon his compliance with the annual continuing legal education requirements and upon his payment of all fees required by the Clerk of the Appellate Courts and the Kansas Continuing Legal Education Commission. Upon the report to the Clerk of the Appellate Courts that the petitioner has complied with the annual continuing legal education requirements and has paid the fees required by the Clerk of the Appellate Courts and the Kansas Continuing Legal Education Commission, the Clerk is directed to enter petitioner’s name upon the roster of attorneys engaged in the practice of law in Kansas.
It Is Further Ordered that this order of reinstatement for Charles T. Frahm shall be published in the Kansas Reports. | [
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The opinion of the court was delivered by
Johnson, J.:
The State of Kansas seeks review of the Court of Appeals’ decision which reversed the district court’s summary denial of Will A. Wimbley’s second K.S.A. 60-1507 motion. In addition to reversing the summary denial, the Court of Appeals reversed Wimbley’s underlying convictions for first-degree murder and criminal possession of a firearm and remanded the case to the district court for a new trial with directions to conduct a pretrial hearing on the questions surrounding DNA evidence on the murder weapon. Finding the district court’s rulings to be appropriate, we reverse the Court of Appeals.
Factual and Procedural Overview
On Februaiy 10, 1999, Tina Cooper, a/k/a Leola Christina Has-kins, Wimbley’s ex-girlfriend, was found shot to death. She had been shot seven times from very close range, as indicated by the presence of stippling and soot in the gunshot wounds. Wimbley was charged and tried for the crime. He defended on the basis that he had not seen or had any contact with the victim on the day of the crime. However, tire jury convicted Wimbley of premeditated first-degree murder and criminal possession of a firearm.
Wimbley pursued a direct appeal with appointed counsel, albeit Wimbley was permitted to submit pro se supplemental briefs. State v. Wimbley, 271 Kan. 843, 26 P.3d 657 (2001) ('Wimbley I). One of the issues raised on direct appeal was whether the prosecutor had committed misconduct during closing argument. Wimbley s specific claim was that the prosecutor had improperly commented on Wimbley s post-Miranda silence during closing, which claim was rejected. 271 Kan. at 854-55.
Wimbley also challenged the sufficiency of the evidence to support premeditation. He argued that the Supreme Court’s definition of premeditation had blurred the line between first- and second-degree murder and that the prosecutor’s closing argument had exacerbated the confusion. 271 Kan. at 849. Specifically, Wimbley complained of the following statement:
“ ‘Premeditation requires no specific time period. That’s what the law is. It doesn’t require any. It doesn’t say well, you have to think about it for 30 seconds, or five, or five hours or anything else. Premeditation can occur in an instant. It can be a thought. Just like that (indicating). I can decide to kill anybody in this room and that would be premeditation. That’s what the law is. And you swore — you all swore drat you would follow tire law, and tire law says premeditation can happen just like that.’ ” 271 Kan. at 849-50.
Wimbley I pointed out that Wimbley’s argument was identical to the one made by the defendant in State v. Jamison, 269 Kan. 564, 7 P.3d 1204 (2000). As in Jamison, Wimbley I found that the trial court’s jury instruction on premeditation had been a correct statement of Kansas law and “that there was ‘a very real distinction between the argument of a prosecutor and the instruction of a trial court.’ ” 271 Kan. at 850 (quoting Jamison, 269 Kan. at 573). Wimbley I affirmed the convictions.
In February 2002, some 6 months following the decision in Wimbley I, Wimbley filed his first K.S.A. 60-1507 motion. He supplemented his motion in July 2002. The district court appointed counsel to represent Wimbley, conducted a preliminaiy hearing, and ultimately denied the motion without an evidentiaiy hearing. Wimbley appealed, raising a number of issues, including ineffective assistance of his trial counsel. Wimbley v. State, No. 90,025, 2004 WL 1191449, at *3 (Kan. App. 2004) (unpublished opinion) ('Wimbley II). Specifically, Wimbley complained that his trial counsel had failed to adequately investigate, that trial counsel had improperly conceded in opening statement that Wimbley’s DNA was on the murder weapon, and that trial counsel had failed to object to tire prosecutor’s misconduct during closing argument.
The Wimbley II panel affirmed the district court’s denial of the 1507 motion. With respect to the prosecutorial misconduct issue, the Court of Appeals found that Wimbley had not raised the issue in his 1507 motion and noted that the issue of prosecutorial misconduct had been raised and decided in the direct appeal. Wimbley II, 2004 WL 1191449, at *9.
Four years later, in July 2008, Wimbley filed a second 1507 motion, again claiming ineffective assistance of his trial counsel for fading to object to prosecutorial misconduct during closing argument. This time, Wimbley’s complaint singled out the prosecutor’s statement that premeditation can occur in an instant. The motion also faulted Wimbley’s direct appeal counsel for failing to claim prosecutorial misconduct for the closing argument misstatement of the law on premeditation, instead of using the prosecutor’s misstatement of law to bolster an insufficiency of the evidence issue. Wimbley argued that the district court should address the merits of his claim because of an intervening change in the law effected by the Supreme Court’s decision in State v. Holmes, 272 Kan. 491, 33 P.3d 856 (2001), which was filed November 9, 2001, approximately 4 months after Wimbley I. The second 1507 motion also requested DNA retesting on the murder weapon.
With respect to the prosecutorial misconduct question, the district court found Wimbley’s second motion to be successive and untimely. It denied the motion without reaching the merits. In denying Wimbley’s request for DNA retesting, the district court noted that DNA evidence on the firearm had not been used to convict Wimbley because the State had not presented such evidence at trial, and that Wimbley’s own expert had informed the jury at trial that all of the State’s DNA evidence was unreliable because of cross-contamination between different items of evidence.
Wimbley appealed and filed a pro se brief. The issues identified in that brief claimed: (1) appellate counsel in the direct appeal was ineffective for fading to frame the issue of the misstated law on premeditation as prosecutorial misconduct, instead of an attack on the sufficiency of the evidence; (2) trial counsel was ineffective for failing to object to the prosecutor’s misconduct during closing argument, including the prosecutor’s misstatement of the law on premeditation; (3) appellate counsel in the appeal of the first 1507 motion was ineffective for failing to have the case remanded to the district court for rulings on the prosecutorial misconduct issues; (4) the district court erred in allowing prior crimes evidence without a limiting instruction; (5) the district court should have ordered that the DNA found on the murder weapon be retested; and (6) newly discovered evidence warranted a new trial. The State’s brief relied solely on the argument that Wimbley’s second 1507 motion was successive and that he had not established exceptional circumstances to warrant the consideration of a successive motion.
The Court of Appeals reversed the district court’s ruling that Wimbley’s second 1507 motion was procedurally barred. Wimbley v. State, No. 101,595, 2010 WL 597008 (Kan. App. 2010) (unpublished opinion) (Wimbley III), rev. granted 290 Kan. 1105 (2010). The panel opined that the Supreme Court’s decision in Holmes, 272 Kan. 491, represented a “clear change in the law” from that applied some 4 months earlier in Wimbley’s direct appeal. Wimbley III, 2010 WL 597008, at *6. The panel then determined that the failure of Wimbley’s first 60-1507 counsel and appellate counsel to “call to any court’s attention the clear change in the law represented by the distinction between the Supreme Court’s opinion in Wimbley’s direct appeal and its opinion in Holmes” provided the exceptional circumstances to permit consideration of the successive 1507 motion and triggered the manifest injustice exception to the time limitation of K.S.A. 60-1507(f). Wimbley III, 2010 WL 597008, at *6.
However, Wimbley 111 did not remand to the district court for a consideration of the merits of Wimbley’s second 1507 motion. Instead, the panel determined that Wimbley was entitled to relief as a matter of law, resulting in the reversal of the convictions and a remand for a new trial. Wimbley III, 2010 WL 597008, at *6.
In addition, Wimbley III speculated that the DNA on the murder weapon might be exculpatory, especially given the fact that the State did not offer such evidence at trial. Therefore, the panel directed tire district court to conduct a comprehensive hearing on the questions surrounding DNA evidence on the firearm such as whether the firearm was in the State’s possession and whether it had been previously tested and compared to Wimbley’s most recent DNA sample. Wimbley III, 2010 WL 597008, at *9.
In seeking our review, the State argues that the Court of Appeals erred on multiple levels. On one level, the State contends that the only issue preserved for appellate review was whether Wimbley’s second 1507 motion was procedurally barred as being successive and untimely, which was the ruling of the district court. Accordingly, the State asserts that the panel should not have considered the effectiveness of either trial or appellate counsel on the first 1507 motion because those issues had not been decided below. Moreover, by deciding issues not litigated in the district court, the Court of Appeals denied the State’s opportunity to be heard on those issues.
With respect to the procedural rulings which were properly before the Court of Appeals, the State contends that Holmes could not be the basis for a finding of exceptional circumstances because it was neither a change in the law nor an intervening event. Further, the State suggests that the holding in Holmes did not establish a structural error which automatically mandates a new trial. Therefore, the State contends that an appellate finding of exceptional circumstances should result in a remand to the district court to consider the merits of the successive 1507 motion.
Intervening Change in the Law
At the core of the Court of Appeals’ decision is its characterization of Holmes as an intervening change in the law. Accordingly, before proceeding further, we pause to analyze and clarify the holding in Holmes.
A. Standard of Review
Our interpretation of the scope of this court’s prior decisions is necessarily a question of law. Legal questions are subject to unlimited review. Cf. Prague v. Monley, 29 Kan. App. 2d 635, 637, 28 P.3d 1046 (2001) (whether a legal duty exists is a question of law subject to unlimited review).
B. Analysis
The facts in Holmes bear some resemblance to those in this case. In Holmes, the deceased victim had a contact gunshot wound to the chest, indicating the firearm had been held next to the victim’s skin when fired. As a result of that shooting, Holmes was also convicted of premeditated first-degree murder and criminal possession of a firearm.
However, an important factual distinction is that, unlike Wimbley, Holmes did not deny that he was present when the firearm discharged a round into the victim’s chest. Rather, Holmes’ defense was that he had taken the weapon away from the attacking victim and that the firearm had discharged accidentally during a struggle over the weapon.
During the jury instruction conference at Holmes’ trial, the judge and attorneys had an extended discussion on the definition of premeditation to be given to the jury. During the discussion, the prosecutor explained that the State’s proposed instruction did not contain the statement that premeditation may arise in an instant because in State v. Moncla, 262 Kan. 58, 936 P.2d 727 (1997), the Supreme Court “ ‘didn’t like that particular language.’ ” 272 Kan. at 494. The district court ultimately instructed the jury, with the prosecutor’s approval, as follows: “ ‘Premeditation means to have thought over the matter beforehand. There is no particular length of time required for premeditation to occur.’ ” 272 Kan. at 497. Conspicuously (and deliberately) absent from the jury instruction was any mention that premeditation could occur in an instant or in a second.
Notwithstanding the State-approved jury instruction, the prosecutor in Holmes told the jury during the first portion of the State’s closing argument: “ ‘Ladies and gentlemen, premeditation can occur in an instant. That’s the law in the State of Kansas.’ ” Then, during the rebuttal portion of closing argument, the prosecutor said that “ premeditation can take a second.’ ” 272 Kan. at 497. On appeal, Holmes argued that the prosecutor purposefully misstated Kansas law on premeditation in closing argument and that the misstatement denied him the right to a fair trial. 272 Kan. at 498.
The Holmes court had no trouble finding the prosecutor’s statement — that premeditation may occur in an instant — to be a misstatement of Kansas law. However, that finding was not an epiphanous declaration of new Kansas law. The Holmes court specifically noted Monoids rejection of the phrase that premeditation “may arise in an instant.” 272 Kan. 499. Likewise, Holmes relied on the observation in Jamison “that the concept of premeditation,’ as defined in PIK Crim. 3d 56.04(b), is more than the instantaneous, intentional act of taking another’s life.” 272 Kan. at 499. Both Monda and Jamison were decided prior to Wimbley I. Accordingly, Holmes was not an intervening change in the law with respect to the legal definition of premeditation.
Wimbley III found a “clear change in the law represented by the distinction between the Supreme Court’s opinion in Wimbley’s direct appeal and its opinion in Holmes.” Wimbley III, 2010 WL 597008, at *6. By “distinction,” the panel was apparently referring to the difference in the ultimate dispositions, i.e., Wimbley I affirmed the convictions, whereas Holmes reversed. Otherwise, as we have already noted, Wimbley’s complaint about the prosecutor’s closing argument definition of premeditation was presented on direct appeal as part of a sufficiency of the evidence issue. In that context, the Wimbley I opinion essentially found that the trial judge’s correct jury instruction remedied the prosecutor’s incorrect statement of the law in closing argument. On the other hand, the issue presented in Holmes was prosecutorial misconduct, which the court found to be purposeful and prejudicial. The standards of review and analyses for those issues are different. Therefore, the fact that Wimbley I and Holmes reached different end results on different issues cannot be construed as a change in the law.
What Wimbley III must have divined from Holmes was the creation of a new rule that a prosecutor’s closing argument misstatement of the definition of premeditation constitutes structural error, entitling the defendant to a new trial as a matter of law. Wimbley III, 2010 WL 597008, at *6 (“Wimbley is entitled to relief as a matter of law.”). But, of course, Holmes did not explicitly declare such a new structural error rule, and one cannot be implied from the analysis employed.
To the contrary, Holmes stated that its first task was to “determine if the prosecutor s misstatement of the Kansas law violated Holmes’ right to a fair trial.” 272 Kan. at 499. Such an endeavor, i.e., a prejudice inquiiy, would have been unnecessary if the error were structural. Likewise, Holmes found it necessary to look at the particular conduct of the prosecutor in that case to determine whether the misstatement was purposeful and to consider the jury instructions that were given on the different degrees of homicide. In short, Holmes looked at the prejudicial impact of the prosecutor’s comments, rather than treating the misstatement of law as automatically reversible structural error. That process is confirmed by the opinion’s summarized holding: “Here, the prosecutor, after informing the judge as to the law, deliberately misstated the law to the jury, and the trial court’s failure to act to correct the misstatement deprived Holmes of his right to a fair trial.” 272 Kan. at 499-500.
To conclude, Holmes did not change the legal definition of premeditation and did not create a new structural error rule. The case simply reiterated that a prosecutor’s statement that premeditation can occur in an instant is a misstatement of the law and that if such an error denied the defendant a fair trial, a reversal for a new trial is required.
Untimely or Successive Motion
A. Standard of Review
When the district court summarily denies a K.S.A. 60-1507 motion, an appellate court conducts de novo review to determine whether the motion, files, and records of the case conclusively establish that the movant is not entitled to any relief. Holt v. State, 290 Kan. 491, 495, 232 P.3d 848 (2010); Trotter v. State, 288 Kan. 112, 132, 200 P.3d 1236 (2009).
B. Analysis
As noted, this is Wimbley s second K.S.A. 60-1507 motion. The first was filed in February 2002 and supplemented in July 2002. The district court’s denial of that motion was affirmed by the Court of Appeals in 2004. Wimbley II, 2004 WL 1191449. This second 1507 motion was filed in July 2008.
The district court is not required to entertain a second or successive motion for similar relief filed by the same prisoner absent a showing of exceptional circumstances. K.S.A. 60-1507(c); Holt, 290 Kan. at 495; Supreme Court Rule 183(c), (d) (2010 Kan. Ct. R. Annot. 255). “ ‘Exceptional circumstances are unusual events or intervening changes in the law that prevented the defendant from raising the issue in a preceding 60-1507 motion. [Citation omitted.]’ ” Holt, 290 Kan. at 496 (citing State v. Mitchell, 284 Kan. 374, 379, 162 P.3d 18 [2007]). The burden to make such a showing lies with the movant. Holt, 290 Kan. at 495.
In his second 1507 motion, Wimbley attempts to obtain relief for alleged prosecutorial misconduct in closing argument based upon a misstatement of the definition of premeditation. When he filed his direct appeal, Wimbley was cognizant of the prosecutor’s incorrect statement of the law — that premeditation can occur in an instant — because he incorporated that complaint into his sufficiency of the evidence issue. Likewise, Wimbley understood the concept that reversible error could be predicated upon a prosecutor’s improper closing argument statements because he raised that precise issue in his direct appeal, albeit based upon another statement. Obviously, then, Wimbley had the requisite knowledge to make his current prosecutorial misconduct claim in his first 1507 motion.
Wimbley argues that Holmes’ intervening change in the law prevented him from raising the issue before now. As the State points out, Wimbley’s intervening change in the law argument is unavailing for two reasons: Holmes was neither a change in the law nor an intervening event.
First, as noted above, Holmes did not redefine premeditation. Monda had previously rejected the notion that premeditation “may arise in an instant,” and Jamison had previously conveyed the concept “that ‘premeditation’ means something more than the instantaneous, intentional act of taking another’s me.” Jamison, 269 Kan. at 573. Like the defendant in Holmes, Wimbley had the law he needed to pursue his current prosecutorial misconduct claim in either his direct appeal or in his first 1507 motion, without having to refer to the Holmes opinion.
Perhaps more importantly, Wimbley did have the benefit of the decision in Holmes by the time he filed his first 1507 motion. Holmes was filed November 9,2001. Wimbley s first 1507 was filed some 3 months later, in February 2002, and was subsequently supplemented in July 2002. Because Holmes was filed before Wimbley’s first 1507, it could not be an intervening change in the law between the first and second 1507 motions and could not have prevented Wimbley from raising any issues derived from Holmes in the first 1507 motion.
The Court of Appeals side-stepped the temporal problem with Wimbleys exceptional circumstances argument by finding that the attorneys appointed to represent him on his first 1507 motion were ineffective for failing to “call to any court’s attention the clear change in the law” and for “failing to heed Wimbleys pleas to make this argument a part of his initial 60-1507 motion.” Wimbley III, 2010 WL 597008, at “6. We find the Court of Appeals tactic to be procedurally and substantively flawed.
The first procedural hurdle is that, as the State points out, Wimbley has never raised an ineffective assistance of counsel claim based upon the performance of the attorney that represented him in the district court on his first 1507 motion. The Court of Appeals conjured up that claim on its own. Ordinarily, an appellate court does not consider an issue sua sponte, and appellate courts have often declared that an unbriefed issue is deemed waived or abandoned. See State v. Martin, 285 Kan. 994, Syl. ¶ 2, 179 P.3d 457, cert. denied 129 S. Ct. 192 (2008) (party that does not brief an issue is deemed to have waived or abandoned that issue); but cf. Rhoten v. Dickson, 290 Kan. 92, 117, 223 P.3d 786 (2010) (appellate court has power to address issue parties failed to raise in exceptional circumstances).
Likewise, Wimbleys second 1507 motion, now before us, did not raise the issue of the effectiveness of his representation on his first 1507 motion — either with regard to the trial attorney or to the appellate attorney. Accordingly, the district court did not consider or rule on those ineffective assistance of counsel claims in this case. Granted, Wimbley does attempt to challenge his first 1507 appellate counsel’s representation by raising the issue for the first time in this appeal. However, such a procedure is generally not allowed.
“Claims of ineffective assistance of counsel, as a general rule, cannot be raised for the first time on appeal. Rather, in most cases a district court must consider the evidence to determine the two-prong test for establishing ineffective assistance of counsel, which requires a defendant to 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) defendant was prejudiced to the extent that there was a reasonable probability of success but for counsel’s deficient performance.” Trotter, 288 Kan. 112, Syl. ¶ 10.
Only under extraordinary circumstances, i.e., where there are no factual issues and the two-prong ineffective assistance of counsel test can be applied as a matter of law based upon the appellate record, may an appellate court consider an ineffective assistance of counsel claim without a district court determination of the issue. Trotter, 288 Kan. 112, Syl. ¶ 11. As will be discussed below, this case does not present such an extraordinary circumstance.
Further, Wimbley’s claim, embraced by the Court of Appeals, that his attorneys failed to heed his pleas to make the prosecutorial misconduct claim a part of Wimbley’s first 1507 motion is curious, if not disingenuous. As noted, Wimbley filed a pro se supplemental brief in his direct appeal and has consistently displayed an ability to make himself heard by the courts. Moreover, it was Wimbley who prepared, filed, and supplemented the first 1507 motion, i.e., Wimbley controlled the content of the 1507 motion before any attorney was appointed to represent him.
Finally, as noted above, ineffective assistance of counsel involves a two-prong test, the second prong of which requires a finding of sufficient prejudice to create a reasonable probability of success without counsel’s deficient performance. Trotter, 288 Kan. 112, Syl. ¶ 10. Wimbley would have needed to establish that, if the attorneys appointed on the first 1507 motion had raised the issue of prosecutorial misconduct based on misstating the legal definition of premeditation in closing argument, there was a reasonable probability of obtaining a reversal.
In Holmes, the defendant acknowledged involvement in the shooting, but claimed self-defense and accident. Obviously, Holmes’ intent and premeditation were squarely in issue. Accordingly, the prosecutor’s misstatement of the legal definition of premeditation directly interfered with the defense theoiy and was obviously prejudicial.
In contrast, the victim here sustained seven gunshot wounds to the upper body, fired at close range, providing a strong indicator that whoever killed the victim did so in a deliberate and premeditated manner. Moreover, Wimbley proffered an alibi defense, denying that he had even seen the victim on the day of the shooting. One might ponder why the prosecutor was even arguing the definition of premeditation when the principal question was the identity of the killer and not the mindset of the shooter. Certainly, the case does not present the kind of exceptional circumstances that would permit the appellate court to find ineffective assistance of counsel as a matter of law without a prior determination in the district court.
With respect to the appellate counsel on the first 1507 motion, we note yet another impediment to the Court of Appeals’ finding of ineffectiveness. In the appeal on the first 1507 motion, counsel raised the issue that the original trial counsel was ineffective for arguing during closing argument that the State had not proven premeditation. The contention was that the premeditation argument indicated that Wimbley was involved in the shooting, which was contrary to Wimbley’s alibi defense. Wimbley II, 2004 WL 1191449, at °4. It would have been awkward, if not inconsistent, for appellate counsel to claim reversible error for the prosecutor’s misstatement of the legal definition of premeditation, after claiming ineffective assistance of counsel for arguing the State had not proven premeditation. In other words, if the concept of premeditation was contrary to or inconsistent with Wimbley’s alibi defense, then an inaccurate definition of premeditation would not have been prejudicial to the alibi defense theoiy.
In short, the ineffective assistance of counsel claims were not properly before the court and were not established as a matter of law. The Court of Appeals is reversed. The district court’s denial of this second and successive 1507 motion is affirmed.
DNA Retesting
In his second 1507 motion, Wimbley also sought to invoke the provisions of K.S.A. 21-2512(a)(3) to obtain a retesting of the DNA found on the hammer of the firearm allegedly used to murder Haskins. K.S.A. 21-2512(a) provides:
“(a) Notwithstanding any other provision of law, a person in state custody, at any time after conviction for murder as defined by K.S.A. 21-3401, and amendments thereto, or for rape as defined by K.S.A. 21-3502, and amendments thereto, may petition the court that entered the judgment for forensic DNA testing (deoxyribonucleic acid testing) of any biological material that:
(1) Is related to the investigation or prosecution that resulted in the conviction;
(2) is in the actual or constructive possession of the state; and
(3) was not previously subjected to DNA testing, or can be subjected to retesting with new DNA techniques that provide a reasonable likelihood of more accurate and probative results.”
The district court summarily denied Wimbley s request, finding a'failure of the statutory requirements for testing because Wimbley had not shown that the DNA evidence on the gun was used to convict him as it was never introduced at trial, that the gun was in the State’s possession, or that there were new testing methods available. The court also noted that Wimbley’s own expert had informed the jury at trial that all of the State’s DNA evidence was irreparably contaminated and unreliable, suggesting that retesting could not produce exculpatory evidence. See State v. Smith, 34 Kan. App. 2d 368, 373, 119 P.3d 679, rev. denied 280 Kan. 990 (2005) (court not required to appoint counsel and hold evidentiary hearing where files and records demonstrate conclusively that DNA testing could not lead to exculpatory evidence).
A. Standard of Review
Citing to State v. Lackey, 42 Kan. App. 2d 89, 94, 208 P.3d 793 (2009), rev. granted 290 Kan. 1099 (2010) (pending), the Court of Appeals held that the summary denial of a request for DNA testing under K.S.A. 21-2512 presents a question of law over which an appellate court has unlimited review. We agree with that review standard.
B. Analysis
To be eligible for testing under the statute, the biological material to be tested must meet three criteria, the first of which is that the material “[i]s related to the investigation or prosecution that resulted in the conviction.” K.S.A. 21-2512(a)(l). It appears that the district court in this instance read that prerequisite to mean that the material must have been actually used at trial as part of the evidence presented by the State to convict the defendant. The district court’s construction of the statute is too restrictive. All that is required is that the material be related to either the investigation or the prosecution. Unquestionably, the biological material on the murder weapon was intimately related to both the investigation and prosecution of Wimbley that resulted in his murder conviction. The district court erred in finding that Wimbley could not obtain testing of the biological material on the firearm under K.S.A. 21-2512 because the State had not presented evidence of that material at the trial.
The second requirement is that the material is “in the actual or constructive possession of the state.” K.S.A. 21-2512(a)(2). The district court found that Wimbley had failed to make a showing that the State possessed the firearm. The Court of Appeals took issue with that finding because a defendant in Wimbley’s circumstance would have no ability to prove whether the State still had possession of the gun. Moreover, the Court of Appeals cited to Bruner v. State, 277 Kan. 603, 606, 88 P.3d 214 (2004), for the proposition that K.S.A. 21-2512 only requires a prisoner to allege that the State has possession of evidence.
In his request for retesting, Wimbley recited that the State had done DNA testing on the murder weapon and had used the results at the preliminaiy hearing to get Wimbley bound over for trial. Obviously, the State had to actually or constructively possess the firearm in order to have the initial DNA testing performed on it. If the State subsequently divested itself of possession of the firearm, then it would need to be prepared to explain the divestiture. Contrary to the district court’s ruling, Wimbley made a sufficient initial showing that the State possessed the biological material he wanted tested.
The third statutory prerequisite is that the biological material has not been previously subjected to DNA testing or that it could be subjected to “retesting with new DNA techniques that provide a reasonable likelihood of more accurate and probative results.” K.S.A. 21-2512(a)(3). The Court of Appeals was troubled that the record did not provide a clear history of the DNA testing of the murder weapon. Wimbley III, 2010 WL 597008, at *8. Further, the panel was “at a loss to know whether DNA testing has actually been performed on the gun.” Wimbley III, 2010 WL 597008, at *9.
The Court of Appeals’ confusion over the existence of prior testing is curious. Wimbley did not allege that the firearm had not previously been subjected to DNA testing. To the contrary, his petition acknowledged that DNA testing results were admitted at his prehminary hearing and recited that “[petitioner seeks to have the DNA found on the hammer of the alleged weapon retested.” (Emphasis added.)
The petition also explains that the State subsequently obtained a court order for new blood and saliva samples from Wimbley. Wimbley III recited a portion of the opinion from the first 1507 appeal that related that circumstance:
“ ‘A lab report showing Wimbley’s DNA was on the handgun was admitted at the prehminary hearing. Based on comments by the prosecutor at another hearing, the DNA for that test came from an unrelated 1998 case where Wimbley was the victim and a lab investigator took blood on a hair and other items. The officer who saw Wimbley bleeding in that case apparently did not state it was Wimbley’s blood that was collected. To counter Wimbley’s trial counsel’s argument that the 1998 sample may not have been Wimbley’s blood, the State requested Wimbley to provide a DNA sample for testing, which was granted. Wimbley II.’ ” 2010 WL 597008, at *8.
Wimbley s actual complaint appears to be contained in his allegation that “the state never introduced any DNA evidence concerning petitioner’s DNA found on the hammer of the gun as compared with the new DNA samples ordered by the court.” (Emphasis added.) The unknown is the DNA profile from Wimbley’s court-ordered bodily fluid samples. What is needed to determine whether DNA will exculpate Wimbley is for the State to disclose the DNA profile from the new bodily fluid samples, if it exists, so that it can be compared to the existing DNA profile from the murder weapon. In other words, the requested retesting of the murder weapon will not assuage the concerns of either Wimbley or the Court of Appeals without a concurrent request for DNA testing of the bodily fluid samples for comparison purposes. Wimbley did not request testing of the new, court-ordered samples of his bodily fluids. Therefore, the requested retest of the murder weapon cannot, standing alone, produce noncumulative exculpatoiy evidence, which is the determination to be made by the district court under K.S.A. 21-2512(c).
Moreover, Wimbley has made no showing whatsoever that there is “a reasonable likelihood of more accurate and probative results” of the murder weapon DNA profile if it were to be retested. His allegation that there are new testing procedures since his conviction are totally unsupported, conclusoiy, and insufficient to meet the requirement of K.S.A. 21-2512(a)(3). Accordingly, the district court was justified in declining Wimbley s request for retesting of the murder weapon and on that issue, the district court is affirmed.
To reiterate, we affirm the district court’s summary denial of Wimbley’s 60-1507 motion with respect to his claims of ineffective assistance of counsel and his request for DNA retesting. Given its order for a new trial, the Court of Appeals panel determined that Wimbley’s other issues—specifically the impact of State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006), and the newly discovered evidence in the form of an affidavit from a recanting witness—were moot. Because we are reversing the order for a new trial, those additional issues are no longer moot, and we remand the case to the Court of Appeals to resolve the remaining issues. | [
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|
The opinion of the court was delivered by
Kingman, C. J.:
The appellant McCord was tried on an information charging him with murder in the first degree. He was found guilty of murder in the second degree, and sentenced to ten years imprisonment in the penitentiary. He brings the case to this court by appeal, and assigns three errors — first, that the information is defective; second, that the wife of the accused was improperly permitted to testify in behalf of the state on his trial; third, the misdirection of the court in a material matter of law.
I. The information is good. See Smith v. The State, 1 Kas., 365. It contains every averment necessary to be stated in an indictment at common law. See 3 Chitty ** Or. L., 751, 752, and authorities there cited. It contains such further averments as are necessary in an information for murder in the first degree under our statute, stated with accuracy, precision, and certainty — so that the defendant could not be misled as to the charge against him, nor the court in doubt as to ■ the judgment to be pronounced on a verdict.
II. On the trial Sarah McCord, the wife of the appellant, was offered as a witness on the part of the State, and avowed her willingness to testify on the trial. The appellant objected to her as an incompetent witness. The objection was overruled, and the witness permitted to testify. The propriety of this ruling must be determined by , , J , , , ., P _ . _ . J the late statute on this subject. Laws 1871, p. 280, ch. 118, § 1. This section provides that no person shall be incompetent to testify in a criminal case “ by reason of being the husband or wife of the accused,” and contains this proviso, “That no person on trial or examination, nor wife or husband of such person, shall be required to testify, except as a witness on behalf of the person on trial or examination.”
The body of the section makes the husband or wife of the accused a competent witness in all cases. The proviso is a limitation, not on the competency of the witness, but on the power of the court to compel such witness to testify. When by the body of the section the witness was made competent, then if that stood alone ah the measures that the law gives to courts could be resorted to to enforce the witness to testify. By the proviso this power is limited; and this is all the proviso attempts to do. Had the legislature intended such a witness competent only when called by the accused they could easily have made it plain by using the word permitted or allowed, instead of the word required. This word has a definite meaning. It simply means that the State shall not demand as a right that such a witness under such circumstances shall testify. It does not profess to deal with the competency of the witness; only with the right of the prosecu tion. to demand, that they should testify, and the power of the court to enforce that demand. Therefore it does not prevent any such testimony from being voluntarily given.
Counsel claim that the word regw/red has acquired a technical meaning in the law, and refer us to sections 325 and 326 of the code in support of their view. But in each of these sections the word is used in its common and ordinary sense, and the precise one we have given it above. The subpoena demands as a right that the witness shall attend, and of course th,e court can enforce such a demand by appropriate proceedings. The witness in this case was clearly not within the terms of the proviso, and the court correctly permitted the witness to testify. It would have been error had the court reguvred her to testify on behalf of the State.
The sanctity and inviolability of the marriage relation is appealed to, and to preserve them the court is urged to give the statute a construction which we have seen it will not bear. The argument is one ^addressed more properly to the legislature than the court. If the law is open to the objections urged it should be repealed; but this should be done by the legislature, and not by judicial construction.
III. The charge objected to is in these words: “The defendant being charged in the information with murder in the first degree, you may, if in your opinion the evidence warrants the same, find him guilty of murder in the first or second degree, or of any one of the several degrees of manslaughter, or of an assault only.”
The objection to this charge arises from the peculiar status of the case, and not from any inherent impropriety in the charge itself as applied to cases generally. The accused had been before tried on the same information, and bad been found guilty of manslaughter in the third degree. On his motion a new trial was granted, and on the new trial the verdict was for murder in the second degree. It is contended that on the second trial he could not be convicted of a higher degree of the crime of which he was charged than that of which he was found guilty by the verdict on the first trial. The argument in support of this position may be briefly stated as follows: The verdict of “guilty of manslaughter in the third degree,” on the first trial, was a verdict of not guilty as to all the higher degrees of the offense than the one of which he was found guilty; that when he moved for a new trial he only moved for a new trial of the issue as found against him, and therefore only waived the constitutional guaranty that he should not be twice put in jeopardy for the same offense, so far as was necessary to obtain a new trial, and that it was not necessary to, nor did he waive that constitutional right except as to the issue found against him, and not on those degrees of the offense of which by the verdict he was inferentially acquitted. In support of this reasoning counsel refer to Brennan v. The People, 15 Ill., 511; Hunt v. State, 25 Miss., 378; People v. Gilman, 4 Cal., 376; State v. Ross, 29 Mo., 35; Jones v. The State, 13 Texas, 184; Lithon v. The Commonwealth, 2 Va. Cases, 311; Slaughter v. The State, 6 Humph., 410; Campbell v. The State, 9 Yerger, 333, and The State v. Tweedy, 11 Iowa, 350. These cases, and some others from the same States, seem to support the doctrine for which the appellant contends. A contrai-y doctrine is maintained in The State v. Comm’rs, 2 Hill (S. C.,) 273; The State v Morris, 1 Blackf., 37; United States v. Harding, 1 Wallace, Jr., 127. And the absence of decisions in the older States upon the point may .be suggested as showing that the theory is one that has only of late years found its way into our jurisprudence.
The power to grant a new trial in criminal cases constituted no part of the jurisdiction of the court at common law. In this country the courts have assumed and exercised with great uniformity the power of granting new trials in criminal cases. It is said, and so far as our researches extend it is true, that there are but two reported cases that deny this power: The People, ex rel. Case, v. The Judges, &c., 2 Barb., 282, and United States v. Gibert, 2 Sumner, 19. This power to grant new trials is in some States conferred by express legislation. In others the courts have assumed the power in the interests of justice and public safety, as was done in Massachusetts in Com v. Green, 17 Mass., 532. In other States its origin is found in the law organizing the court: People v. Munson, 1 Parker’s C. R., 625. In every case where we have seen the question discussed it is assumed as a power conferred by legislation or by long usage. An(i in no case is it held to be a constitutional grant. It is a pri/oilege offered by the law to the accused, in addition to the guaranties afforded by the constitution. As the power is conferred by law, it is competent for the law-making branch of the government to extend it, or to limit and modify it, at its pleasure, or to prescribe upon what terms it may be granted, so that it does not infringe upon any constitutional guaranty. In this State the terms are prescribed by law. In the code of criminal procedure are these provisions:
' “Sec. 270. A new trial is a re-examination of the issue in the same court.
“ Sec. 274. The granting of a new trial places the parties in the same position as if no trial had been had. The former verdict cannot be used or referred to either in evidence or argument.”
The plain reading of these sections is conclusive of the whole matter under discussion. A critical examination of the sections does not change the result. A re-examination of the issue is to again examine it. The issue is the issue on the record, as it is there made up. It consists of the charge of the offense in all its degrees, as set out in the information, on the part of the State, and the plea ofnot guilty,” which is a denial of each and all the allegations of the information, on the part of the defendant. Such is the issue on the record, and the only issue in the case. It was the issue tried, and the issue to be re-tried, or, in the words of the statute, to be reexamined. The statute uses the words “ the issue,” not some part of the issue that may be ascertained by judicial construction — but the issue. Section 274 is quite as plain, and as if to guard against any misinterpretation declares that the granting of a new trial places the parties in the same position as if no trial had been had. This is clear and conclusive. The very essence of the argument in favor of the rulings contended for by counsel for appellant is that the new trial places the party in a very different position from what he would have occupied if no trial had been had.
The statute and the decisions cited, are in direct conflict. The decisions are but evidence of what the law is, in absence of express statutory regulations, and cannot be used to overturn the law. Nor does our law conflict with any principle asserted in these decisions as can easily be shown: Three propositions are asserted: lst.-That a verdict of acquittal or conviction is a perfect bar to another prosecution for the same offense, and this is a constitutional guaranty, of the benefit of which neither courts nor legislatures can deprive a party. 2d.-That a party may waive this constitutional safeguard, and that he does so when on his own motion he obtains a new trial. 3d.-That he waives this right only so far as may be necessary to obtain the new trial; and that it is only necessary to waive this right to so much of the verdict as finds him guilty of a certain degree of the offense, and not to that part that inferentially finds him not guilty of the other degrees. The first two of these propositions are admitted by all the authorities. As to the third there is some contrariety of opinion, upon which it is not our purpose to comment. Eor, assuming all the propositions to be correct in the absence of statutory regulations, and the result is not affected in this state, where, as we have seen, the legislature had a right to make a law, and where they have made one, that measures the extent of the waiver, and fixes its necessity. The authorities all agree that the constitutional right may be waived by the party convicted, and that this waiver is commensurate with the necessities of the party, in order to obtain a new trial. Whatever may be the proper rule as to the extent of the waiver where there is no statute, it is plain that where the statute has fixed the necessity, it has also there placed the extent of the waiver. In this state the necessity is that the party should waive the entire fight so as to bring himself within the power of the court to grant him a new trial. His waiver goes no farther than his necessities. He makes his motion with a full knowledge of the risks he takes, and of all the possible consequences. To obtain a new trial, he voluntarily waives a right that neither courts nor the legislature can take ftom him — a right that he surrenders for his own benefit, and the exact extent of which was plainly written, as the terms on which it could be done, when his motion was allowed. He is estopped from now complaining. He has been unfortunate, but such a result must sometimes follow any new trial, even on the theory contended for by appellant, though the misfortune may not be so great.
We are aware that the decision in the case of the People v. Gilman, 4 Cal., 376, was made under a law similar to our own, and such may be the fact in some of the other States. If so, they must hold the law unconstitutional; and before the decisions are convincing, they must show them to be so. The law is admitted to be constitutional in the California case, and is then construed away by reasoning that violates every well-established principle of construction, and holds that if it is to be understood as it is written it is unconstitutional, but fails to show how. We are not convinced by the case. We believe the law to be constitutional. By its terms it is decisive. The judgment is therefore affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Beier, J.:
Defendant Charles Denmark-Wagner appeals the denial of his motion to withdraw his plea of guilty to one count of felony first-degree murder. He also challenges his sentence to lifetime postrelease and the district judge’s order that he register as a violent offender for his lifetime.
This case arose out of the November 2008 murder of Alesia Dorris-Graham in her home in Pratt County. Denmark-Wagner and codefendant Daniel John Riendeau went to Dorris-Graham’s home to purchase prescription drugs from her. When she refused to sell, the defendants took the drugs by force. Riendeau confronted Dorris-Graham in her bedroom and stabbed her to death.
The complaint filed against Denmark-Wagner contained four counts: Count 1 — felony first-degree murder (K.S.A. 21-3401[b]) with the underlying felony of aggravated robbery (K.S.A. 21-3427) and/or aggravated burglary (K.S.A. 21-3716) or, in the alternative, felony first-degree murder (K.S.A. 21-3401[b]) with the underlying felony of attempted possession of opiates and/or narcotics (K.S.A. 2008 Supp. 65-4160; K.S.A. 22-3301); Count 2• — aggravated robbery (K.S.A. 21-3427); Count 3 — aggravated burglary (K.S.A. 21- 3716); Count 4 — attempted possession of opiates, opium, narcotic drugs or designated stimulants (K.S.A. 2008 Supp. 65-4160; K.S.A. 21-3301).
Denmark-Wagner entered into a written plea agreement on February 25, 2009, on Count 1, on the theory that he participated in a murder committed in the course of an aggravated robbery and/ or aggravated burglary. In exchange, the State agreed to dismiss Counts 2, 3, and 4. The plea agreement stated: “I understand that the mandatory sentence for Count [1] is life in prison and that I will be sentenced to life in prison.” At the time of his plea agreement, Denmark-Wagner was 18 years old and had completed 12 years of schooling. Through his attorney, he stated that he would accept the plea on February 13, 2009.
Denmark-Wagner s written plea agreement repeated that his sentence would be “[l]ife in prison and a fine of up to $300,000.00,” and Denmark-Wagner acknowledged: “I understand that if I enter a plea of guilty this court must impose a life sentence against me.” In the agreement, Denmark-Wagner also signed the following statement:
“After fully discussing my potential defenses to the charges in this case, the legal options available to me in these proceedings, and the above-mentioned matters with my attorney, I advise this court that I understand it is my decision, alone, whether to accept or reject the plea agreement and whether to enter a plea of guilty to the charge(s) herein. My decision to accept the plea agreement and change my plea is completely voluntary without anyone having threatened me or promised me anything of benefit, and it is without duress or coercion other than that which the plea agreement provides.”
In the agreement, Denmark-Wagner further stated that the only drug or medication he had taken during the preceding 48 hours was “trazadone,” affirming that “[a]ny such drugs or medications do not impair my mental faculties or [judgment], I remain in full control of my mental faculties or [judgment].”
At the plea hearing on February 25, 2009, the district judge thoroughly described all of the rights that Denmark-Wagner would waive by pleading guilty and confirmed that Denmark-Wagner understood his rights. When asked, “Are you entering a plea of guilty to this crime because you are, in fact, guilty of this crime?” Den mark-Wagner asked, “May I have a second to talk to my lawyer?” After being permitted to consult counsel, he answered, “Yes, sir.” During the hearing, Denmark-Wagner also confirmed that he had signed the written plea agreement and that he did not have any questions regarding the document. He denied that any threats or promises had been made to induce him to plead guilty rather than proceed to trial. Further, Denmark-Wagner s counsel stated, “I have personally spent numerous hours with Mr. Denmark-Wagner going over the evidence, possible defenses that could have been raised[;] and I am satisfied that he is doing this intelligently and freely and voluntarily.” The district judge also asked Denmark-Wagner about his understanding of the sentence he was facing, “[Y]ou understand that the penalty for murder in the first-degree is life in prison, a fine of up to $300,000, or both a prison sentence and a fine and that potentially you could spend the rest of your natural fife in the custody of the Secretary of Corrections?” Denmark-Wagner responded affirmatively.
Denmark-Wagner moved to withdraw his plea on March 9, 2009, before his sentencing. In his motion, Denmark-Wagner argued that his plea of guilty was not entered into voluntarily because “he entered the guilty plea as a result of pressure placed upon him by his family to accept the plea agreement.” He also argued that his plea of guilty was not entered into intelligently because “he did not fully understand the possible sentence that he would receive.”
At the hearing on the motion to withdraw 2 days later, Denmark-Wagner testified that his mother and sister pressured him into accepting the plea because “[m]y family thought it would be better for me to go so they can see me sooner and just be able to hug me and stuff during visitation instead of waiting and seeing me through the glass.” Denmark-Wagner stated that he agreed to the plea because he “didn’t want to just up and say the opposite of what everyone wanted [him] to do.” During his cross-examination by the State, Denmark-Wagner engaged in the following exchange:
“Q. Okay, but ultimately it was your decision to go ahead and enter the plea?
“A. Yeah, I did. They can’t say it for me.
“Q. But ultimately, I mean, I’m not trying to trick you. Ultimately it’s your decision to do it?
“A. Yes.
“Q. Okay. And now you have second thoughts about it?
“A. Well, I didn’t — my thought of what I wanted to do was not take the plea.
“Q. Okay. Well, you’re the one that wanted — told your attorney you wanted to take the plea, right?
“A. That’s because my mother told me.”
Denmark-Wagner also testified that he did not understand the possible sentence, believing he would be released from prison in 20 years rather than merely be eligible for parole in 20 years. As his explanation for what led him to this belief, Denmark-Wagner said, “I must have misread things wrong because that’s how I assumed it would be.” On this subject, Denmark-Wagner engaged in the following exchange with the State:
“Q. . . . You signed a plea agreement in this case, is that correct?
“A. Yes, sir.
“Q. The plea agreement said that you understood that the Count 1, the penalty is life in prison, correct?
“A. Yes, with getting out after 20.
“Q. And you read that life in prison, right?
“A. And I get out after 20.
“Q. Does it say that in the plea agreement?
“A. It says somewhere.
“Q. It does? And so it should be in the plea agreement if it says that, right?
“A. Yeah.
“Q. Well, because the plea agreement I have only says the penalty is life in prison. Where [does] the get out after 20 come from?
“A. What I understood from the plea agreement [was] that I was getting out after 20 years.
“Q. Okay. And it should be in the plea agreement, then, right, if it said that?
“A. Umm . . .
“Q. I mean, you would agree if it said it in the plea agreement then the Judge should be able to find it in there, right?
“A. Yes.”
The district court specifically noted that Denmark-Wagner’s plea agreement did not mention that a life sentence translates into release in 20 years, stating:
“The suggestion that the means of how one visits with family at the Pratt County Jail, talking through glass rather than being able to hug them or touch them or matters of that nature does not constitute grounds to withdraw the plea from the Court’s perspective.
“The suggestion that the plea agreement misstated the potential sentence, the Court has carefully reviewed the plea agreement which was filed with the Court on February 25th and the suggestions that it indicated that he would not serve more than 20 years of a life sentence is nowhere set forth in that plea agreement and the motion to withdraw his plea would be denied.”
The district court judge immediately sentenced Denmark-Wagner to life in prison with a minimum sentence of 20 years. Denmark-Wagner also was sentenced to lifetime postrelease supervision and ordered to register under the Kansas Offender Registration Act for his lifetime.
Withdrawal of Guilty Plea
Whether a defendant’s guilty plea may be withdrawn is controlled by statute, K.S.A. 22-3210(d), which provides: “A plea of guilty or nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged.” This court will not disturb a district court’s decision to deny defendant’s presentence motion to withdraw his guilty plea unless the defendant demonstrates that the judge abused his or her discretion. State v. Plotner, 290 Kan. 774, 777, 235 P.3d 417 (2010). The defendant bears the burden of establishing such an abuse. Plotner, 290 Kan. at 777 (citing State v. White, 289 Kan. 279, 284-85, 211 P.3d 805 [2009]). Judicial discretion is abused where no reasonable person would take the district judge’s view. Plotner, 290 Kan. at 777 (quoting State v. Ortega-Cadelan, 287 Kan. 157, 165, 194 P.3d 1195 [2008]).
Historically, this court focused on three factors to be considered in determining whether a defendant has demonstrated good cause to withdraw his or her plea under K.S.A. 23-3210(d): (1) whether the defendant was represented by competent counsel; (2) whether the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3) whether the plea was fairly and understandingly made. State v. Aguilar, 290 Kan. 506, 511, 231 P.3d 563 (2010). We have now clarified that these factors are “viable benchmarks for judicial discretion,” but that “[a]ll of the . . . factors need not apply in defendant’s favor in every case, and other factors may be duly considered in the district judge’s discretionary decision on the existence or nonexistence of good cause.” Aguilar, 290 Kan. at 512, 513.
Denmark-Wagner first asserts that his plea was not voluntarily entered into because he was coerced by his mother and sister into taking the plea agreement. In his view, such family pressure constitutes good cause to allow him to withdraw his plea.
In Williams v. State, 197 Kan. 708, 421 P.2d 194 (1966), and in Wippel v. State, 203 Kan. 207, 453 P.2d 43 (1969), this court considered similar arguments and rejected the defendants’ claims.
In Williams, the defendant argued that his attorney and his wife pressured him into pleading guilty to statutory rape “by pointing out the damage to the reputation of his stepdaughter and the worry and strife a trial would cause his wife.” 197 Kan. at 710. This court concluded that “[ejvery man charged with crime is influenced by personal considerations which may later not appear valid to him, but psychological self-coercion is not the coercion necessary in law to destroy an otherwise voluntary plea of guilty.” Williams, 197 Kan. at 711.
In Wippel, the defendant alleged that he was pressured by his attorney into pleading guilty because his attorney advised him that “if he did not do so, both he and his neighbor might be prosecuted for attempted bribery” and because the plea was made “with the understanding” that his sentence would be short enough so that his children would not be placed in foster care. 203 Kan. at 209. As in Williams, this court concluded that “[tjhese personal considerations now being voiced by [defendant] may have been of some psychological influence on his decision to plead guilty; but personal considerations of this nature do not constitute the coercion required to vitiate an otherwise voluntary plea.” Wippel, 203 Kan. at 209.
Denmark-Wagner attempts to distinguish Williams and Wippel on the grounds that both involved plea withdrawals after sentencing rather than before sentencing. It is true that the statutory standard for withdrawal of a plea after sentencing is higher for a defendant — manifest injustice rather than good cause. However, as the State has pointed out, Williams and Wippel do not appear to rely upon, or even discuss, this difference.
Further, although not binding on this court, the Court of Appeals has recently considered Williams and Wippel and found them to be influential in its analysis of a motion to withdraw a guilty plea before sentencing. State v. Bartlow, No. 96,933, 2008 WL 2051672, at *3 (unpublished opinion), rev. denied 286 Kan. 1180 (2008). In Bartlow, the defendant argued that he demonstrated good cause to withdraw his plea before sentencing because his parents had pressured him into taking the plea. The Court of Appeals held that, as there was a thorough plea hearing during which the defendant was informed of his rights, the defendant stated that he understood his rights, and the defendant stated he was not coerced into pleading guilty, the plea would not be disturbed because of a defendant’s mere “ ‘change of mind.’ ” 2008 WL 2051672, at *3. Absent any “evidence his plea was made unwillingly or without an understanding of the consequences,” such a change of mind was not enough to show good cause. 2008 WL 2051672, at *4. Pressure by the defendant’s parents was insufficient. 2008 WL 2051672, at *4.
We evaluate Denmark-Wagner’s argument with these precedents in mind.
Denmark-Wagner argues that he was coerced into pleading guilty purely because his mother and sister wanted to be able to see him sooner and hug him during visitation. Denmark-Wagner originally affirmed that his plea was freely made in his written plea agreement and again when he entered his plea in court. At the hearing to withdraw his plea, Denmark-Wagner maintained that he had never wanted to enter the plea, but he acknowledged that it was ultimately his own choice to make to do so. Further, Denmark-Wagner acknowledged that he knew the decision whether to accept the plea agreement was his. As with the defendants in Williams, Wippel, and Bartlow, Denmark-Wagner appears to have given heavy weight to the advice of others, but he made his own decision. We hold that the district judge did not err in refusing to grant the motion to withdraw Denmark-Wagner’s plea as involuntary. Whatever family pressure existed did not rise to the level of good cause.
As he did in district court, Denmark-Wagner also argues here that his plea of guilty was not intelligently entered into because he misunderstood the possible sentence, believing that life in prison meant he would be released rather than merely eligible for parole after 20 years. The essence of Denmark-Wagner s argument is that he misunderstood what “life in prison” means. Although the district court explained to Denmark-Wagner that the sentence meant that he could spend the rest of his natural life in prison, Denmark-Wagner maintains that, as an 18 year-old, he thought 20 years seemed like the rest of his life.
At this level, Denmark-Wagner also argues that his plea was not intelligently entered into because he was taking trazodone at the time of his plea agreement. Neither party has provided this court with information on what type of medication trazodone is or its effects. Further, nothing in the record indicates why Denmark-Wagner was taking the drug or any side effects he may have personally experienced. Denmark-Wagner indicated in his written plea agreement that he had taken “trazadone” within 48 hours of signing the agreement, but he affirmed that it did not impair his mental faculties or judgment. He now asserts that the district judge abused his discretion by “fail[ing] to ask at the plea hearing about [defendant’s] medication and its [effects] on his understanding of the proceedings and when [he] failed to inquire again about the drug at the plea withdrawal hearing.” This, Denmark-Wagner asserts, was a “potentially important factor” in determining whether his plea was knowingly made.
Although the trazodone ground for withdrawing Denmark-Wagner’s plea could be construed as a new issue not raised below, it is more fairly characterized as additional support for Denmark-Wagner’s claim that his plea was unintelligent, a claim he did present below. We treat it that way in the following discussion.
We note initially that there is nothing in the statute governing acceptance of pleas to require a judge to ask specifically about medications the defendant may be taking, as long as the court ensures: (1) that the defendant is informed of the maximum penalty that may be imposed if the defendant accepts the plea, (2) that the defendant understands the nature of the charge, and (3) that the defendant understands the consequences of pleading guilty. K.S.A. 22-3210(a)(2), (3).
In State v. Adams, 284 Kan. 109, 115-16, 158 P.3d 977 (2007), this court found that the district court judge properly exercised his discretion in denying a presentence motion to withdraw defendant’s plea on the grounds that he did not understand the difference in the possible charges and sentences. In reaching its decision, this court focused on the facts that the judge inquired during the plea hearing about whether the defendant understood the possible sentences and that the defendant gave an affirmative response. Adams, 284 Kan. at 115.
In State v. Harned, 281 Kan. 1023, 135 P.3d 1169 (2006), this court also reviewed a motion to withdraw a plea under the good cause standard. One of the defendant’s claims was that he misunderstood the sentence likely upon conviction, believing that felony murder would draw 20 years. Although this court ultimately did not reach this issue because it was abandoned, the court noted that the trial court informed the defendant of the sentence during the plea hearing and that counsel testified that he had informed the defendant of the sentence. Harned, 281 Kan. at 1043.
In State v. Frost, No. 100,743, 2010 WL 1379112 (Kan. App. 2010) (unpublished opinion), the defendant attempted to withdraw his plea, arguing that the pain medication he had taken clouded his judgment. The defendant raised this as an obstacle to a valid plea at a hearing on his motion to withdraw. The Court of Appeals concluded that the district judge had properly exercised his discretion in denying the defendant’s motion, because the judge had inquired into the defendant’s mental state and had determined that the defendant was competent to enter a plea. Moreover, the defendant’s attorney had testified that he did not notice that the defendant was under the influence. Frost, 2010 WL 1379112, at *4. The court noted favorably a prior Court of Appeals decision, concluding that a “ ‘defendant who is taking prescription drugs, and who informs the court that he or she is not under the influence of any intoxicating drugs, is able to make a voluntary plea.’ ” Frost, 2010 WL 1379112, at *4 (quoting State v. Christiansen, 23 Kan. App. 2d 910, 913, 937 P.2d 1239 [1997], disapproved on other grounds by State v. Bolin, 266 Kan. 18, 968 P.2d 1104 [1998]).
Like the defendants in Adams and Hamed, Denmark-Wagner claims that he did not understand the meaning of his sentence, but all of the evidence in the record refutes this claim. The written plea agreement and the plea hearing both demonstrate that Denmark-Wagner was well informed about his likely sentence and that he affirmed his understanding of this information. At the hearing on his motion to withdraw his plea, Denmark-Wagner could not point to anything suggesting that life in prison meant anything other than a prison term up to the length of Denmark-Wagner’s entire natural life. In fact, the district judge confirmed during the plea hearing that Denmark-Wagner understood that a life sentence meant Denmark-Wagner could spend “the rest of [his] natural life” in prison. Denmark-Wagner’s assertion that his plea was unintelligently made on this basis is meritless.
Regarding the trazodone, although the district judge here did not directly address Denmark-Wagner’s medication in the hearing on the motion to withdraw his plea, as the judge did in Frost, Frost still is persuasive; Denmark-Wagner had already informed the court through his written plea agreement that the drug had no impact on his ability to make an intelligent plea. Moreover, there is nothing in the record from the plea hearing to contradict Denmark-Wagner’s confirmation in the written agreement that trazodone did not impair his mental faculties or judgment. In fact, from the record, Denmark-Wagner appears to have been actively and sensibly engaged in the proceedings, even asking to confer with his attorney at one point.
Based on the record, the district judge did not abuse his discretion in determining that Denmark-Wagner understood his plea and likely sentence and thus refusing to permit withdrawal of Denmark-Wagner’s plea as unknowingly or unintelligently made.
Lifetime Postrelease and Offender Registration
During sentencing, Denmark-Wagner was informed by the court that he had 10 days to appeal the sentence or to challenge the denial of his motion to withdraw. Denmark-Wagner’s attorney did not object to the legality of any facet of her client’s sentence at the hearing. Further, nothing in the record suggests that Denmark-Wagner filed a motion to correct an illegal sentence before the district court. However, an illegal sentence can be corrected at any time. K.S.A. 22-3504(1). Denmark-Wagner now challenges both the lifetime postrelease and lifetime offender registration features of his sentence as illegal, and the question of whether a sentence is illegal is subject to unlimited appellate review. State v. Davis, 288 Kan. 153, 154, 200 P.3d 443 (2009).
The State concedes that Denmark-Wagner’s lifetime postrelease and registration requirements did not conform to the governing statutory provisions. An illegal sentence under K.S.A. 22-3504(1) “ Is a sentence imposed by a court without jurisdiction; a sentence that does not conform to the statutory provision, either in the character or the term of the punishment authorized; or a sentence that is ambiguous with respect to the time and manner in which it is to be served.’ ” State v. Peirano, 289 Kan. 805, 807, 217 P.3d 23 (2009) (quoting State v. Gracey, 288 Kan. 252, 261, 200 P.3d 1275 [2009]).
Under K.S.A. 2008 Supp. 22-3717(b)(2), “an inmate sentenced to imprisonment for an off-grid offense committed on or after July 1, 1999, shall be eligible for parole after serving 20 years of confinement without deduction of any good time credits.” (Emphasis added.) In contrast, under K.S.A. 2008 Supp. 22-3717(d)(l), “[p]ersons sentenced for crimes, other than off-grid crimes, committed on or after July 1,1993, or persons subject to subparagraph (G) [persons convicted of a sexually violent crime], will not be eligible for parole, but will be released to a mandatory period of postrelease supervision upon completion of the prison portion of their sentence . . . .” (Emphasis added.) Denmark-Wagner argues that “[p]ostrelease and parole are two distinct terms in the Kansas criminal justice system” and that, under the statute, his sentence can include only parole, not postrelease supervision.
In State v. Ballard, 289 Kan. 1000, 1014, 218 P.3d 432 (2009), this court explained the statutoiy distinction between parole and postrelease supervision as follows:
“The term ‘parole’ generally means ‘the release of a prisoner to the community by the Kansas parole board prior to the expiration of such prisoner’s term.’ K.S.A. 21-4602(d). Thus, ‘parole’ is a term of art that is limited to off-grid crimes .... By contrast, the term ‘postrelease supervision’ generally means ‘release of a prisoner to the community after having served a period of imprisonment or equivalent time served in a facility where credit for time served is awarded as set forth by the court, subject to conditions imposed by the Kansas parole board and to the secretary of correction’s supervision.’ K.S.A. 21-4703(p). This term has traditionally been applied to only grid crimes.”
A sentence of life imprisonment is an indeterminate sentence under which a defendant is subject to parole, rather than a determinate sentence under which a defendant will be placed on post-release supervision. See Ballard, 289 Kan. at 1014. Further, “the time served on parole is limited by the sentence of confinement,” while the “time served on postrelease supervision is not.” State v. Guadina, 284 Kan. 354, 361, 160 P.3d 854 (2007).
Based on the clear language of K.S.A. 2008 Supp. 22-3717(b)(2) and (d)(1), because Denmark-Wagner was sentenced to life in prison for an off-grid offense, Denmark-Wagner is eligible for parole after 20 years and should not be subject to postrelease supervision. Therefore, as both Denmark-Wagner and the State agree, Denmark-Wagner’s sentence of lifetime postrelease does not conform to the statute and is illegal. The postrelease supervision portion of Denmark-Wagner’s sentence must be vacated.
Denmark-Wagner’s argument on lifetime offender registration also has merit. At the most, under K.S.A. 2008 Supp. 22-4902 and K.S.A. 22-4906, he was eligible for a 10-year registration requirement. The State agrees.
Under K.S.A. 22-4906(a), any person who is a “violent offender” under the terms of the statute is required to register under the Kansas Offender Registration Act, K.S.A. 22-4901 et seq. A violent offender includes any person convicted of murder in the first degree. K.S.A. 2008 Supp. 22-4902(a)(2), (d)(2). Murder in the first degree includes felony murder. K.S.A. 21-3401(b). A violent offender also includes any person convicted of a person felony after the court makes a finding on the record that a deadly weapon was used in the commission of that felony. K.S.A. 2008 Supp. 22-4902(a)(7). Any person required to register for a first conviction must register “for a period of 10 years after paroled, discharged or released, whichever date is most recent." K.S.A. 22-4906(a). Upon a second or subsequent conviction, a person must instead register “for such person’s lifetime.’’ K.S.A. 22-4906(a).
Here, pursuant to the terms of his plea agreement, Denmark-Wagner was convicted of one count of felony first-degree murder. Under the terms of the plea agreement, all other charges against the defendant stemming from the same underlying events were dropped. Denmark-Wagner’s journal entry of judgment notes that he was sentenced to register as a violent offender because of his conviction of murder in the first degree. The journal entry also notes that he was required to register as a violent offender because of his conviction of a person felony with a finding on the record that the felony was committed with a deadly weapon.
Although the State presented evidence during the plea hearing that Denmark-Wagner’s codefendant used a knife to stab and kill the victim, the district court appears not to have made any specific finding on the record that the crime was committed with a deadly weapon, instead asking Denmark-Wagner only if “for purposes of this plea is [the State’s account of the facts of the crime] substantially correct as to what occurred?” Even if the district court’s question to Denmark-Wagner could be construed as leading to a finding that the crime was committed with a deadly weapon, there appears to be no showing in the record that such a use of a deadly weapon was a second or subsequent crime requiring lifetime registration.
Denmark-Wagner has two prior juvenile adjudications for petit theft, a juvenile adjudication for a possession of marijuana, and a juvenile adjudication for burglary of a structure. All of these adjudications occurred in Florida. Denmark-Wagner’s adjudication for the burglary of a structure was classified in the presentence report as a juvenile felony person. There is nothing in the record demonstrating that Denmark-Wagner’s burglary of a structure involved the use of a deadly weapon.
Further, this court held in State v. Jackson, 291 Kan. 34, 39-40, 238 P.3d 246 (2010), that juvenile adjudications and extended jurisdiction juvenile proceedings for Kansas crimes are not convictions for the purposes of the Kansas Offender Registration Act. Instead, the registration statute applies only to “convictions arising from adult prosecutions.” Jackson, 291 Kan. at 40. Although Denmark-Wagner s juvenile proceedings were in Florida, there is nothing in the statutory scheme to suggest that they should be treated differently from a juvenile adjudication in Kansas. Therefore, even if Denmark-Wagner s prior juvenile adjudications were for crimes specified in K.S.A. 22-4906 for which a “second or subsequent conviction” would result in lifetime registration, this court has made clear that such juvenile proceedings are not within the scope of the statute.
An addendum to Denmark-Wagner s presentence report states that Denmark-Wagner was on felony bond for felony possession of illegal drugs and for burglary when the crime at issue here was committed. However, nothing in the record shows a conviction for either of these crimes.
Based on the clear language of K.S.A. 22-4906, because Denmark-Wagner has only one eligible conviction, Denmark-Wagner should have been sentenced to register as an offender for a period of 10 years, not life. The lifetime offender registration requirement of his sentence does not conform to the statute and is illegal. It must be vacated.
Conclusion
In view of all of the foregoing discussion, Denmark-Wagner s conviction of first-degree felony murder is affirmed and the lifetime postrelease and offender registration portions of his sentence are vacated. This case is remanded to the district court for resentencing to correct the offender registration period.
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The opinion of the court was delivered by
Moritz, J.:
Rafael Flores appeals the district court’s denial of his motion to withdraw his no contest plea after sentencing. Finding no error, we affirm.
Factual and Procedural Background
After being certified to be tried as an adult, Flores was charged with one count of premeditated first-degree murder, with an alternative count of felony murder; two counts of attempted first-degree murder; one count of criminal damage to property; and one count of criminal possession of a firearm by a juvenile. Flores pled no contest to and was convicted of one count of first-degree felony murder and one count of attempted voluntary manslaughter. The district court imposed consecutive sentences of life imprisonment for the felony-murder conviction and 34 months’ imprisonment for the attempted voluntary manslaughter conviction.
On direct appeal to this court, Flores argued the district court abused its discretion in sentencing him consecutively. This court dismissed the appeal for lack of jurisdiction. State v. Flores, 268 Kan. 657, 660, 999 P.2d 919 (2000) (Flores I).
In 2004, Flores filed a pro se motion to correct an illegal sentence pursuant to K.S.A. 22-3504. Flores argued that a “provision of the Juvenile Offenders Code in effect at the time of the shooting, K.S.A. 38-1636(i) (Furse 1993), precluded the imposition of an adult sentence because the attempted voluntary manslaughter conviction was a lesser included offense of the originally charged crime of attempted first-degree murder.” State v. Flores, 283 Kan. 380, 381, 153 P.3d 506 (2007) (Flores II). This court affirmed the district court’s denial of Flores’ motion to correct an illegal sentence. Flores II, 283 Kan. at 388.
In 2009, Flores moved to withdraw his plea pursuant to K.S.A. 2009 Supp. 22-3210(d), arguing the district court lacked subject matter jurisdiction because felony murder with an underlying felony of attempted voluntary manslaughter is not a crime. In the alternative, he claimed his trial counsel was ineffective for failing to file a motion to arrest judgment.
Flores now appeals the district court’s denial of his motion to withdraw his plea. We have jurisdiction over this appeal under K.S.A. 22-3601(b)(l) (off-grid crime; fife sentence). See State v. Kelly, 291 Kan. 563, 244 P.3d 639 (2010).
Analysis
Following sentencing, the district court may set aside the judgment of conviction and permit the defendant to withdraw the plea in order to correct manifest injustice. K.S.A. 2009 Supp. 22-3210(d)(2). Absent an abuse of discretion, we will not disturb a trial court’s denial of a motion to withdraw plea after sentencing. State v. Woodward, 288 Kan. 297, 299, 202 P.3d 15 (2009). A district court abuses its discretion if its action is arbitrary, fanciful, or unreasonable. A trial court does not abuse its discretion if reasonable persons could differ as to the propriety of the court’s action. State v. Gant, 288 Kan. 76, 81-82, 201 P.3d 673 (2009).
Further, in determining whether the district court abused its discretion, we must consider whether its ruling was based upon a correct understanding of the law. State v. Edgar, 281 Kan. 30, 38, 127 P.3d 986 (2006); see also State v. Gonzalez, 290 Kan. 747, 756, 234 P.3d 1 (2010) (abuse of discretion review includes consideration of whether the lower court correctly understood and applied controlling legal standards).
Flores concedes he received a “beneficial plea agreement” but nevertheless contends he pled to a nonexistent crime because K.S.A. 21-3436 (Furse 1995) does not include attempted voluntary manslaughter as an inherently dangerous felony.
On appeal, the State agrees “that the plea deal orchestrated by the [Sjtate and defense . . . was not supported by the law.” Nevertheless, the State urges this court to affirm the district court’s rationale in denying the motion to withdraw the plea — namely, that a defendant may plead to a nonexistent crime if the defendant initially was brought into court on a valid complaint; received a beneficial plea agreement; and voluntarily, knowingly, and intelligently entered into the plea agreement. See Spencer v. State, 24 Kan. App. 2d 125, 129, 942 P.3d 646 (1997), aff'd 264 Kan. 4, 954 P.2d 1088 (1998); see also Easterwood v. State, 273 Kan. 361, Syl., 44 P.3d 1209, cert. denied 537 U.S. 951 (2002) (holding that defendant, who had opportunity to challenge felony-murder charge but knowingly waived that right and pled guilty to felony murder and other charges, was bound by plea agreement and was not entitled to collaterally attack his convictions); McPherson v. State, 38 Kan. App. 2d 276, 285, 163 P.3d 1257 (2007) (holding “[a]s long as due process requirements are met and the bargain is beneficial to the defendant, the defendant cannot later validly collaterally attack either the plea or the bargained-for sentence”).
However, we need not address the district court’s rationale as we have concluded that the charge to which Flores ultimately pled — felony murder with an underlying felony of attempted voluntary manslaughter — was a crime under the circumstances presented here.
Flores ignores the specific language of K.S.A. 21-3401(b) (Furse 1995), which defines murder in the first degree as the killing of a human being committed “in the commission of, attempt to commit, or flight from an inherently dangerous felony as defined in K.S.A. 21-3436 and amendments thereto.” (Emphasis added.) K.S.A. 21-3301(a) (Furse 1995) defined attempt 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.”
And while Flores correctly contends that K.S.A. 21-3436 (Furse 1995) does not include “attempted voluntary manslaughter” as an inherently dangerous felony, 21-3436(b) does define inherently dangerous felonies to include voluntary manslaughter “when such felony is so distinct from the homicide alleged to be a violation of subsection (b) of K.S.A. 21-3401 and amendments thereto as to not be an ingredient of the homicide alleged to be a violation of subsection (b) of K.S.A. 21-3401 and amendments thereto.”
Thus, Flores could be charged with and plead no contest to felony murder with the underlying charge of attempted voluntaiy manslaughter as long as the underlying attempted voluntary manslaughter charge was so distinct from the homicide which was the subject of the felony murder charge as not to be an ingredient of the homicide alleged to be the felony murder. See State v. Gayden, 259 Kan. 69, 79, 910 P.2d 826 (1996) (holding that attempted voluntary manslaughter of one victim can be an independent underlying collateral felony supporting a conviction for felony murder of another victim).
Here, the amended information filed the day of the plea hearing specifically charged Flores with the felony murder of Justin Mercado based on the underlying felony of attempted voluntary manslaughter of John Moses. The transcript of the plea hearing demonstrates that Flores pled no contest to the amended information. Therefore, the underlying felony to which Flores pled was distinct from and not an ingredient of the homicide alleged to be the killing under K.S.A. 21-3401(b), and we reject Flores’ claim that he pled to a nonexistent crime.
Although the district court denied Flores’ motion to withdraw his plea for a reason it need not have considered, it reached the correct result, and we uphold the denial of the motion. See State v. Murray, 285 Kan. 503, 533, 174 P.3d 407 (2008).
Affirmed. | [
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|
The opinion of the court was delivered by
Rosen, J.:
Kevin Hernandez was convicted of premeditated first-degree murder, aggravated robbery, aggravated burglary, and residential burglary following a jury trial. He was sentenced to fife imprisonment with a hard 50 mandatory minimum term on the primary offense of murder, plus a consecutive term of 74 months for the other offenses.
Factual Background
On June 9, 2007, Melissa Whitemore encountered Hernandez, an acquaintance of hers, while she was driving around Countryside Estates in Manhattan, Kansas. She stopped to talk to him because she had a couple of bags of his clothing to return to him. Hernandez told Whitemore he had moved back into the trailer home of the eventual victim, Adam Hooks. Together, they took the clothing into Hooks’ trailer. Hernandez collected a Sony Play Station and several DVDs, which he said belonged to him. Hernandez then helped Whitemore locate her boyfriend, Anthony Cassell, and all three drove to a pawn shop. Hernandez went in alone to sell the Play Station and DVDs that he had taken from Hooks’ trailer. The three of them then went to a hotel room in Junction City.
Meanwhile, Hooks returned to his trailer home at Countryside Estates from his parents’ home to find that his trailer had been broken into and items had been taken. Hooks discussed the burglary and theft with several people, including his father, Stan Gettys, a close friend, and a pawn shop owner and reported the incident to the police. Hooks identified his former roommate, Hernandez, as the only person who might have had reason to steal his Sony Play Station and over 100 DVDs.
Near the end of his shift on June 9, 2007, Officer Apodaca of the Riley County Police Department met Hooks to take a report of the burglary and theft. After returning to the office to finish his report, Officer Apodaca looked up and identified Hernandez on the police department’s computer.
During this same time, at the hotel room in Junction City, Hernandez and Cassell smoked some marijuana, drank, and possibly used cocaine. When Whitemore and Cassell were ready to go to bed, they asked Hernandez to leave. Hernandez called a friend to pick him up from the hotel. Crystal Coker picked Hernandez up from the hotel in Junction City at the request of the friends she was hanging out with that evening. She dropped Hernandez and the friends off at Countryside Estates around midnight.
Brock Baker-Odell, one of the friends riding with Coker that evening, testified that Hernandez appeared to have been “pretty well intoxicated,” as though “he had been having fun all day,” when they picked him up at the hotel. He described Hernandez’ speech as unimpaired, although Hernandez “wasn’t speaking like a normal person would that would be sober. He wasn’t using long words. He was just being brief and talking, but we were still talking and carrying on a conversation.” Baker-Odell said that they smoked marijuana on the trip from Junction City to Countryside Estates in Manhattan and, upon arriving at Countryside Estates, they went to a storm shelter and smoked more marijuana before they parted company.
Virgil Koppenhoffer, whose backyard abutted Hooks’ backyard in Countryside Estates, testified that Hernandez stopped by in the early morning hours of June 10, 2007, and “drank some beers and left.” Koppenhoffer stated that Hernandez was “[n]ot intoxicated, not drunk like I was.” In fact, Koppenhoffer testified that he was already intoxicated when Hernandez arrived such that he could not remember the time, and he passed out after Hernandez left.
When Officer Apodaca began his patrol the next morning, June 10, 2007, he saw Hernandez driving Hooks’ vehicle near Countryside Estates. The officer followed, but ultimately lost sight of the vehicle. He decided to return to Hooks’ residence to see if Hooks could explain this unusual occurrence. When Officer Apodaca arrived at Hooks’ trailer home, the vehicle was parked in the driveway. He could see Hernandez walking away from the trailer, taking off a red shirt and exchanging it for a blue shirt. The officer followed Hernandez on foot, but again lost sight of him.
Officer Apodaca returned to the trailer home to attempt to make contact with Hooks. The officer knocked on the door and attempted numerous times to call Hooks’ cell phone. On one occasion, the cell phone was answered by a male who identified himself as “Ryan” and told the officer that he had the wrong number. Officer Apodaca called Hooks’ father, Stan Gettys, to see if anyone else might answer Hooks’ cell phone and if he knew a person named Ryan.
At Officer Apodaca’s request, Gettys arrived at the trailer home. Gettys eventually forced open the window to a bedroom, where Officer Apodaca was able to enter and search the home for Hooks. Other officers, as well as Gettys, walked through the trailer looking for Hooks, but Hooks was not in the residence.
After the backup officers left, Officer Apodaca obtained permission from Gettys to look in Hooks’ vehicle. The officer saw several white trash bags with miscellaneous paperwork and clothing in them leaning against the door. In the back of the vehicle, Officer Apodaca opened a Rubbermaid container that was among more bags of what appeared to be laundiy. Gettys identified the jeans in the top layer of the container as Hooks’ jeans by the belt still through the loops of the jeans. Underneath the jeans, Officer Apodaca found what appeared to be human remains. Hooks’ body, in seven parts, was ultimately recovered from the Rubbermaid container, four individual trash bags, and two trash bags wrapped in blankets located in the vehicle.
Police located Hernandez and arrested him at a movie theater, where Hernandez had been watching the movie Hostel 2. After being transported to the Riley County Law Enforcement Center, Hernandez was interviewed and recorded on a videotape in which he provided a fairly detailed description of the events of June 9 and 10. Hernandez said that he knew basically where he went that night, but he was “really messed up.” He admitted that after leaving Koppenhoffer’s residence, he went to Hooks’ trailer to see if he could stay there for the night. Hernandez was unable to remember the details of the conversation, but he knew they had argued.
Hernandez explained that he felt like he was outside his body, watching what happened. Hernandez described finding a hammer on the floor, chasing Hooks into the bedroom, and hitting Hooks, “just [going] off on him,” with the hammer. Hernandez was so disturbed by the sight of blood gushing out of Hooks’ head and the sound of Hooks’ labored breathing that he ran into the living room, sat on the couch, and chain-smoked a pack of cigarettes. Hernandez said that he considered killing himself, because he did not think he was capable of something like that. Feeling bad about what had happened, he decided to hide the body.
Hernandez returned to the bedroom, turned on the fight, and observed that “it was bad.” Hooks was still gasping for air. Her nandez first said that Hooks “just died” while he tried to figure out what to do, but he eventually admitted that he stabbed Hooks twice in the chest. He described two different knives, one that he used to stab Hooks in the heart and another that he used to cut up the body after razor blades did not work. Hernandez described dismembering the body and putting it into plastic bags. He remembered that it was difficult to cut the body into pieces. He wrapped the torso in blood-soaked blankets from the bed and then used towels to clean up the scene. He put the bedding and towels in the vehicle to dispose of with the body and flipped the mattress over to hide the bloodstains. He remembered taking several trips out to the vehicle.
At trial, the juiy found Hernandez guilty of premeditated first-degree murder, aggravated robbery, aggravated burglary, and residential burglary. He was sentenced to fife imprisonment with a hard 50 mandatory minimum prison term on the primary offense of murder, plus a consecutive term of 74 months for the other offenses.
Analysis
Prosecutors Closing Argument
Hernandez argues that a comment during closing argument constituted misconduct and denied him a fair trial. The disputed comment was made when the prosecutor began the rebuttal portion of his closing argument: “Since June 10th of 2007, when I watched Adam Hooks’ body being removed from a vehicle . . . .” An objection made at trial was directed at another part of the closing argument, but the State concedes that a timely objection is not required to preserve an issue of prosecutorial misconduct that occurs during closing argument. See State v. Morningstar, 289 Kan. 488, Syl. ¶ 5, 213 P.3d 1045 (2009).
Hernandez contends that this was a statement of fact not in evidence because no evidence had been presented that the prosecutor actually watched Hooks’ body being removed from the vehicle. Further, Hernandez argues that this statement improperly bolstered the State’s case by painting the prosecutor “as an insider who had personal knowledge of the case, and therefore the authority to dismiss doubts.”
The standard of review is well established:
“We employ a two-step analysis in considering claims of prosecutorial misconduct. First, the court must determine whether the prosecutor’s statements were outside the wide latitude for language and manner a prosecutor is allowed when discussing the evidence. If the first step of the analysis has been met, we consider whether the comments constitute plain error, that is, whether the statements were so gross and flagrant as to prejudice the jury against the accused and deny him or her a fair trial.”
“In determining whether a new trial should be granted because of prosecutorial misconduct under the second step in our analysis, we consider: (1) whether the misconduct is so gross and flagrant as to deny the accused a fair trial; (2) whether the remarks show ill will on the prosecutor’s part; and (3) whether the evidence against the defendant is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors. None of these three factors is individually controlling, and before the third factor can ever override the first two factors, an appellate court must be able to say both the K.S.A. 60261 and the Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), harmlessness tests have been met.” State v. Scott, 286 Kan. 54, Syl. ¶¶ 17-18, 183 P.3d 801 (2008).
Our decision in State v. Ward, No. 99,549, this day decided, synthesized and clarified our case law on the definition and application of the harmless error standard, including the two standards we have relied upon in the second step of our analysis of prosecutorial misconduct claims, concluding:
“[Bjefore a Kansas court can declare an error harmless it must determine the error did not affect a party’s substantial rights, meaning it will not or did not affect the trial’s outcome. The degree of certainty by which the court must be persuaded that the error did not affect the outcome of the trial will vary depending on whether the error implicates a right guaranteed by the United States Constitution. If it does, a Kansas court must be persuaded beyond a reasonable doubt that there was no impact on the trial’s outcome, i.e., diere is no reasonable possibility diat the error contributed to the verdict. If a right guaranteed by the United States Constitution is not implicated, a Kansas court must be persuaded that there is no reasonable probability that the error will or did affect the outcome of the trial.” State v. Ward, No. 99,549.
Like Ward, Hernandez claims a violation of rights guaranteed by the United States Constitution, specifically, a violation of his right to a fair trial and a violation of his Fourteenth Amendment right to due process. As such, we need not address the questions left open by Ward regarding the standard that applies to errors which do not implicate the federal constitution. In this case, it is the State’s burden, as the party favored by the error, to prove beyond a reasonable doubt that the error did not affect Hernandez’ substantial rights, meaning it did not contribute to the verdict obtained. See State v. Ward, No. 99,549.
A comment on a matter outside the evidence is improper. Scott, 286 Kan. at 84. In Scott, the disputed statement was that the prosecutor had listened to the 3-hour confession tape for 60 hours and knew it by heart. Scott argued that the statement was improper because (1) it was a statement outside the evidence, and (2) the statement was designed to make the jury believe the prosecutor’s recollection of the tape was especially accurate. After noting that Scott did not argue that the prosecutor’s subsequent characterization of his confession was false or misleading, we concluded that the comment was nothing more than a “harmless retrospection.” 286 Kan. at 84. Similarly, in this case, the prosecutor’s comment was a harmless retrospection on how this case began.
At oral argument, the prosecutor candidly acknowledged that his statement during rebuttal was a comment on a matter outside the evidence. We agree that the statement should have been more artfully phrased to avoid reference to the prosecutor’s involvement in the investigation of this case and that this statement was in error. However, we are satisfied by the State’s explanation of the statement and persuaded beyond a reasonable doubt that this statement was little more than harmless retrospection that did not contribute to the verdict obtained.
Further, Hernandez does not argue that the statement shows ill will on the part of the prosecutor. Direct physical evidence put Hernandez in close proximity to Hooks at the time of death. Additional testimony showed Hernandez was attempting to dispose of the body and all evidence of the murder when Officer Apodaca interrupted. Combining the physical evidence and the testimony presented at trial with Hernandez’ confession, which did not implicate a third person, the evidence in this case was overwhelming and sufficient such that the jury was not likely influenced by the prosecutor’s statement.
Voluntary Intoxication Instruction
Hernandez objected to the lack of a voluntary intoxication instruction. The State did not oppose such an instruction. In denying the request, the trial court relied on State v. Brown, 258 Kan. 374, 904 P.2d 985 (1995), for the proposition that evidence that the defendant consumed alcohol and drugs on the night of the offense was not enough to support an instruction on voluntary intoxication unless there was evidence that the defendant’s consumption of those substances impaired his mental faculties so as to render him unable to form the requisite intent. The trial court went on to say that, as in Brown, the “evidence showed the defendant’s mental abilities were intact and the defendant’s ability to recall in detail the events occurring on the night of the offense. The defendant gave a statement in this case within a number of hours after the events must have occurred and gave a fairly explicit description of what happened. That is a detailed recollection of the events occurring the night of the offense.”
Hernandez points to one witness who said that while Hernandez’ speech was not impaired by his intoxication, Hernandez’ vocabulary was limited and he was unable to use big words. At oral argument, Hernandez reiterated his position that any evidence of consumption of alcohol and/or marijuana is sufficient to require a voluntary intoxication instruction. In this instance, counsel argued that the jury could infer from evidence of consumption alone that Hernandez was intoxicated to the extent that his ability to form the requisite intent was impaired.
The State concedes that there was evidence that Hernandez had gotten high, had consumed alcohol, and had used marijuana and possibly cocaine on June 9, 2007, but maintains that there was no evidence that Hernandez was intoxicated at the time of the murder. The State focuses on Hernandez’ confession, in which he stated that he apologized to Hooks before stabbing him twice in the heart so that Hooks would not suffer. Further, shortly after the stabbing, Hernandez admitted to dismembering the body, wrapping it in plastic bags, and moving it to the vehicle with the ultimate plan of disposing of the body in the river. Finally, Hernandez used latex gloves while dismembering the body, carefully collected bloodstained items at the scene to dispose of with the body, and attempted to clean up himself and the crime scene before leaving. These actions, the State argues, are not the actions of a person who is so intoxicated that he is unable to form the specific intent required for murder.
“ ‘A defendant is entitled to instructions on die law applicable to his or her theory of defense if there is evidence to support the theory. However, there must be evidence which, viewed in the light most favorable to the defendant, is sufficient to justify a rational factfinder finding in accordance with the defendant’s theory.’ ” State v. Anderson, 287 Kan. 325, 334, 197 P.3d 409 (2008).
Voluntary intoxication may be a defense to any crime that requires specific intent. Brown, 258 Kan. at 386. Hernandez was charged with premeditated first-degree murder, aggravated burglary, and burglary, all of which require specific intent. K.S.A. 21-3401; K.S.A. 21-3716; K.S.A. 21-3715. This question hinges on whether the evidence, viewed in the light most favorable to Hernandez, shows that Hernandez was intoxicated to the extent that his ability to form the requisite intent was impaired. See, e.g., Brown, 258 Kan. at 386-87 (“Although there was evidence, presented by both the State and the defense, that the defendant had consumed alcohol and drugs on the night of the offense, the record is devoid of evidence that the defendant’s consumption of those substances impaired his mental faculties so as to render him unable to form the requisite intent. There was no evidence that the defendant’s physical or mental abilities were impaired. In fact, the evidence demonstrates the defendant’s mental abilities were clearly intact in that he was able to recall in detail the events which occurred the night of the offense.”); State v. Johnson, 258 Kan. 475, 486, 905 P.2d 94 (1995) (“Although there was evidence, presented by both the State and the defense, that the defendant had consumed alcohol, and even by one witness that he was ‘drunk,’ the record is devoid of evidence that the defendant’s consumption of alcohol impaired his mental faculties so as to render him unable to form the requisite intent. The defendant was able to recall his activities on the night of the offense. [Citations omitted.] An instruction on voluntary intoxication was not required.”).
Although there was evidence in this case that Hernandez had consumed alcohol and marijuana on the night of the murder, there was not evidence which, viewed in the light most favorable to the defendant, is sufficient to justify a rational factfinder finding that Hernandez was so intoxicated that he was unable to form the specific intent necessary for the crimes charged. Witnesses described Hernandez as “high” or “intoxicated,” but all believed that Hernandez was aware of what was going on and what he was doing. Perhaps more importantly, Hernandez provided a detailed recollection of the events on the night of the offense, which demonstrates that Hernandez’ mental faculties were intact. The trial court used the appropriate standard to determine whether a voluntary intoxication instruction was appropriate. A defendant must present evidence that his or her consumption of alcohol or drugs impaired his or her mental faculties so as to render him or her unable to form the requisite intent. State v. Parker, 22 Kan. App. 2d 206, 209, 913 P.2d 1236 (1996). This court will not infer impairment based on evidence of consumption alone. Accordingly, the trial court did not err in finding that there was insufficient evidence to find that Hernandez’ mental faculties were so impaired as to render him unable to form the requisite intent.
Identical Offense Doctrine
Hernandez argues that the premeditation required for premeditated first-degree murder is no different from the intentional killing required for intentional second-degree murder. Further, Hernandez argues that the instructions defining “premeditation” and “intentional” imply that acting on purpose, with knowledge of one’s actions, satisfies both elements. This court rejected this argument in State v. Warledo, 286 Kan. 927, 951, 190 P.3d 937 (2008).
“It is well established that offenses are identical when they have the same elements. [Citations omitted.] In order to determine whether the elements are identical for sentencing purposes, an appellate court must consider the statutory elements and that review is unlimited.” Warledo, 286 Kan. at 951. In Warledo, this court considered the argument that premeditated first-degree murder and intentional second-degree murder run afoul of the identical offense sentencing doctrine because there is no appreciable difference between “premeditation” and “intentional.” This court concluded that the two “crimes are clearly not identical.” Warledo, 286 Kan. at 951. Hernandez has not presented any new arguments or rationale that persuades us to change our analysis of this issue.
Hard 50 Sentencing Scheme
Hernandez argues that the hard 50 sentencing scheme is unconstitutional because a jury does not find the facts that increase the term of parole ineligibility beyond a reasonable doubt. This court has repeatedly upheld the hard 50 sentencing scheme against constitutional challenges of this nature. See, e.g., State v. Ellmaker, 289 Kan. 1132, Syl. ¶ 11, 221 P.3d 1105 (2009); State v. Horn, 278 Kan. 24, 44, 91 P.3d 517 (2004); State v. Washington, 275 Kan. 644, 680, 68 P.3d 134 (2003). Again, we see no new arguments that persuade us to alter our analysis.
Sentence to the Highest Term in a Presumptive Grid Block
Hernandez argues that it was error for the trial court to sentence him to the high or aggravated sentence in the grid box for aggravated robbery, aggravated burglary, and burglary without a finding of the aggravating factors made by a jury. “Under K.S.A. 21-4721(c)(1), an appellate court is without jurisdiction to consider a challenge to a presumptive sentence, even if that sentence is to the highest term in a presumptive grid block.” State v. Johnson, 286 Kan. 824, Syl. ¶ 6, 190 P.3d 207 (2008). As we noted in Johnson, we have consistently found that a sentence that falls within the grid box is constitutional and may be considered a presumptive sentence; therefore, the appellate courts lack jurisdiction to consider such sentences. Johnson, 286 Kan. at 842.
BIDS Fee
Hernandez claims that although the trial court considered his ability to pay, the trial court’s assessment of Board of Indigents’ Defense Services (BIDS) attorney fees defies logic and is uncon stitutional because the court acknowledged that the fees may never be paid in full. The trial court made the following findings:
“The Court will direct that the restitution and the reimbursement to BIDS be paid in that order. Restitution first and then other matters following — other financial matters following over the period of sentence. I recognize that Mr. Hernandez is not going to be in a position to gain outside employment. On whatever limited basis that he is able to engage in the remunerative employment during his incarceration that that should go toward these items. The Court will direct that reimbursement to BIDS be made for fees. Again, I understand that that may never get paid in full, but there is a long period of time that is involved and to the extent that money can be paid toward it that it can and should be done because it enables others to be represented as well. I don’t want to diminish in any respect the efforts — substantial efforts made by counsel for the defendant on his behalf by implying through the Court’s order that he has not received anything other than the best benefit of counsel throughout this case.”
The assessment of attorney fees involves the interpretation of a statute, which is a question of law over which an appellate court exercises unlimited review. State v. Robinson, 281 Kan. 538, 539, 132 P.3d 934 (2006). This court has interpreted the statute at issue here to
“ ‘clearly require!] a sentencing judge, “in determining the amount and method of payment” of BIDS reimbursement, i.e., at the time the reimbursement is ordered, to “take account of the financial resources of the defendant and the nature of the burden that payment of such sum will impose.” The language is mandatory; the legislature stated unequivocally that this “shall” occur.’ ” State v. Drayton, 285 Kan. 689, 715-16, 175 P.3d 861 (2008) (quoting Robinson, 281 Kan. at 543).
This court uses an abuse of discretion standard to review the amount of the fee imposed. Drayton, 285 Kan. at 716. In Drayton, this court reversed the assessment of attorney fees for reimbursement of BIDS fees because the district court found Drayton was essentially unable to afford to reimburse any of the $7,110 fee imposed because he would be imprisoned for the next 25 years. Drayton, 285 Kan. at 716. In this case, the trial court made a finding that Hernandez would have some ability to pay the BIDS fees due to the possibility of remunerative employment during his lengthy incarceration period. The fee imposed here was not an abuse of discretion.
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The opinion of the court was delivered by
Kingman, C. J.:
This was an action against plaintiff in error for damages accruing to the defendant in error from the Bail-road Company’s not fencing the land of McCarty, in accordance with a decree of the Leavenworth district court made on the 24th of December, 1863.
The central questions in the case, and the ones decisive of the merits, are, whether the record and decree in the case decided in 1863 was admissible in evidence; and if so, what effect was to be given to the decree. That proceeding was one commenced by the plaintiffs in error to have the right of way condemned through the land of the defendant in error, and many, others, for the use of the railroad of plaintiffs in error. The proceeding was initiated and conducted under the provisions of sections eight and nine, ch. 86, (pp. 916, 917,) of the Ter. Laws of 1855. A petition was presented by the plaintiff in error to the district court alleging that McCarty and some fifty or more other named persons owned mahy tracts and lots of land, which were described, and that they refused to relin quish the right of way. Upon that petition the court appointed certain persons to view the premises, assess the damages, etc., and report. The report was made, and among many others, assessed the damages to McCarty for the land of his proposed to be taken by the said road at $125. McCarty objected to the report on legal grounds stated. Finally a decree was rendered which was for $125 in money to be paid to McCarty, and that the Railway Co. should fence his land, on each side of the track, prior to the time when they commenced running their cars on the road. The decree recites that the case came up regularly for healing on the objections to the report of the viewers by McCarty, and by consent of parties it was rendered as above described. The plaintiff in error insists that the record and decree ought not to have been received in evidence on four different grounds, namely:
1. That the proceeding was against several persons, while the law only authorized it against each person separately.
2. The land was not sufficiently described in the petition. McCarty’s land was described as a certain quarter-section, while the land reported by the viewers was only fifty acres of that quarter-section.
3. An interested man (Yorke,) was appointed one of the viewers.
4c. That there could be no appearance of a corporation in the court but by an attorney, and that an attorney cannot bind his principal by any such consent as the decree recites. .
For these reasons it is urged that the decree is void, the court having no jurisdiction of the corporation, and no power to render such a decree.
The first three grounds above specified may be disposed of by a single remark. There was no issue made up that would authorize a consideration of them. The petition alleged the judgment; the answer was a general denial, and several clauses of the statute of limitations. So far as the statute of limitations is concerned, it disappears from the case. Now if it is conceded that the general denial was sufficient to put the existence of the judgment in question, it did not raise any question. as to the regularity of the proceedings on which it was founded. The only question that could by any possibility be raised on that issue would be whether there was such a judgment. This reason alone disposes of these three objections. Quite as valid a one might be given that none of the three questions could be raised except on direct proceedings in error. A judgment is conclusive and final until reversed. The peace of society requires that there should be some end to litigation. It is possible that a third reason might be given, quite as satisfactory, but two surely are enough.
The fourth objection requires a separate examination, because it not only goes to the admission of the judgment, but also to what effect shall be given to it. It is pretended that the district court had not jurisdiction of the proceedings to condemn the land; that the attorney for the corporation had no authority to consent to a decree for any other compensation than of money; that he could not stipulate that the corporation should, as a condition to getting the right of way through McCarty’s land, build a fence along their track through his land. The record of the proceedings does not show that the corporation consented by its attorney, or that the stipulation as to the fence was made by an attorney; it recites that the decree was so rendered by the consent of the corporation itself, and of McCarty. To avoid this, the counsel for the plaintiff in error say that tne corporation could appear only by attorneys. Suppose this is conceded, and also that the attorney had no power to make a stipulation of the character represented in the decree in this case for the condemnation of the land, and it does not by any means follow that the corporation did not consent to the decree as it was made. This judgment or decree was between the same parties; and upon another proceeding every presumption is to be indulged that would support it. In this case there is not even a presumption necessary. The corporation consented to the decree. That consent was matter of evidence on the trial of the case. It must have appeared by legal and competent evidence. That evidence did not become a part of the record. If the attorney had no right to make such a stipulation, or to give such a consent, the fact must have appeared in some other way that was legal and satisfactory. We by no means intend to decide that even if the consent was made by an attorney, it would invalidate the judgment in this case. When that question arises it will be time enough to consider it. The corporation was in court on its own motion, and on proceedings instituted by itself. By tho decree in the case it obtained all the right it has and which it is using over the land of McCarty. If the decree is illegal, the plaintiff in error is a mere trespasser.
But it is insisted that the decree as to the fence is erroneous. That may be so. It may be that the plaintiff in error has got its right of way over McCarty’s land, and can avoid the compensation decreed for that right of way so far as x ° d that compensation consists of anything other than money; that it is not estopped by its solemn consent made of record from performing a part of a decree, and claiming the benefit of another part of the same deci’ee, a part which would probably have never been made but for the part which it attempts to repudiate. All these questions would arise on review on error. If it was then determined that the decree was erroneous the case could be sent bach; and if McCarty was entitled to more than the amount awarded him in money he could get, on a retrial, that for which the court, instead of money, gave him compensation in protecting his land. The court that rendered the judgment had jurisdiction of the parties, and the subject-matter; and until reversed the judgment is final and conclusive. The judgment is not evidence of a contract; it is the recorded decision of a court having jurisdiction, in the course of regular proceedings, under a law which authorized the court “ to make such orders, and take such other steps as will promote the ends of justice between the owners of such lands, and said company.” If the court erred in the manner of settling the question of damages and giving relief, (which is not admitted,) it is an error that cannot be examined under the issues presented in this case.
Having thus disposed of the main point in the case we proceed to notice those that are alleged to have occurred on the trial. It is suggested that the petition does not make an exhibit of the record of the judgment sued on, as required by the code, and that there is no allegation that the judgment was “ duly given or made.” The attention of the court below was not called to these matters, and they cannot be successfully raised here for the first time.
The plaintiff in error asked a series of instructions most of which were based upon the supposed invalidity of the decree of December, 1863, which the court correctly refused to give. The court then substantially charged on the same points, that if the defendant in error had proved that he had sustained damages at the hands of the road, and that such loss had occurred by reason of the neglect of the Eailroad Company to build the fence along both sides of its track as far as it run through the plaintiff’s land, then for such loss to the extent to which it was proved he was entitled to recover, but in no event could he recover for any loss an amount greater than he had alleged in his petition. This we think was correct ruling. If the loss was the direct result of the neglect of the plaintiff in error, it is but right and law that he who did the wrong should make it good.
The judgment is affirmed.
Yalentine, J., concurring.
Brewer, J., not sitting. | [
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The opinion of the court was delivered by
Yaíentine, J.:
The plaintiff in error Fox Diefendorf complains of a judgment rendered against him in the court below in favor of the defendant in error Henry A. Oliver. The facts are substantially as follows: On the 2d of August, 1867, there was a suit pending in the district court of Jefferson county in which Fox Diefendorf was plaintiff and Alex. W. Eobb was defendant. On that day said Oliver and Anna Eobb were summoned to answer as garnishees in said suit. They answered, but their answers were not satisfactory to Diefendorf. Hence he proceeded with said suit until he obtained a judgment against Alex. W. Eobb for $3,326 and costs, and then commenced the present action against all the defendants in error jointly for that amount and interest .and costs. We suppose he claims to recover from Alex. W. Eobb as the original debtor, and to recover from Anna Eobb and Henry A. Oliver as garnishees in the other suit. The case was tried by the court without a jury, and special findings were made; and upon these findings the court rendered a judgment in favor of Diefendorf and against the two Eobbs jointly for $3,558.82 and costs, and also rendered a judgment in favor of Oliver and against Diefendorf for costs, and this is the judgment of which Diefendorf now complains.
The facts upon which Diefendorf claims that Oliver is liable as garnishee are as follows: On the 17th of July, 1867, Oliver bought some goods of Alex. W. Eobb and gave therefor four negotiable promissory notes, each for $1,125, payable to Anna Eobb the wife of Alex. W. Eobb. Said notes to become due in three, six, nine, and twelve months, respectively, from that time. The first two of said notes were paid before Oliver was garnisheed, and the other two were paid afterwards. On the first day of August 1867, (one day before garnishment,) these notes were indorsed by Anna Eobb to her son Charles J. Eobb, and about March, 1868, they were indorsed by him to A. M. Cowan. On May 4th, 1868, Oliver paid the amount of these two last mentioned notes to Cowan. When Oliver was garnisheed both of these notes were in the hands of Charles J. Eobb, and neither of them was due. When this suit was commenced, (January 31st, 1868,) they were still in the hands of Charles J. Eobb, and neither note was then due; nor’was either note yet due when the two notes were assigned to Cowan. When the trial was had in this case both notes were due and paid in full.
The court below found that the sale of said goods was made by the Eobbs with the intent to defraud Alex. W. Eobb’s creditors, and the court also found some facts that would tend to show that the assignment of the notes by Anna Eobb to her son was also fraudulent. But the court also found that Oliver acted in good faith during the whole transaction; that he had no notice of the fraudulent intent of the Eobbs. The first complaint of the plaintiff in error is, that this last-mentioned finding is against the evidence, and is therefore erroneous. We are of a different opinion however. We think this finding is established by abundant evidence, and is therefore correct.
The second and only other complaint of the plaintiff in error is, that, taking the facts as established, still the judgment of the court below is nevertheless erroneous. Again we think the plaintiff in error is mistaken. If Oliver is liable at all as garnishee it must be because he at the time he answered as garnishee had property in his hands belonging to Alex. "W". Eobb, or because he at that time was indebted to Alex. W. Eobb. First: Had he property belonging to Alex. W. Eobb in his possession? He probably had the goods or a portion of them which he bought of said Eobb; but the evidence hardly shows that the goods ever belonged to Alex. W. Eobb. The evidence rather tended to show that they belonged to Anna Eobb when Oliver bought them. But suppose they belonged to Alex. W. Eobb when Oliver bought them; still, Oliver was an innocent and bona fide purchaser, without any notice of the fraudulent intentions of the Eobbs, and therefore he obtained a good and absolute title to them, legal and equitable, and no creditor of Eobb’s had any right to question his title. 8eeond: Was Oliver indebted to Alex. "W. Eobb ? In a transaction in which Oliver acted in entire good faith he purchased some goods which he supposed belonged to Anna Eobb, and with the consent of Alex. W. Eobb, from whom he purchased them, he gave in payment therefor his negotiable promissory notes to Anna Eobb, two only of which notes remained unpaid at the time he was garnisheed, and these two were not yet due. Hnder these circumstances we do not think he was indebted to Alex. W. Eobb. His answer when he was garnisheed, “ that he was not indebted to Alex. W. Eobb,” was correct. On such notes as these he was not liable to be garnisheed by the creditors of Alex. W. Robb. The judgment of the court below is affirmed.
Kingman, O. J., concurring.
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The opinion of the court was delivered by
Beier, J.:
This appeal arising out of an initial residential custody determination requires this court to revisit the potential for tension between a parent’s constitutionally protected right to free exercise of religion and the judicial system’s responsibility to further the best interests of the child.
Factual and Procedural Background
The subject of this dispute, J.D.H., was 4 years old when his mother, Monica Harrison, filed a paternity action in Wichita. The district court entered a temporary order granting Monica primary residential custody of J.D.H. In response to the paternity action, father Adiel Tauheed admitted paternity and sought primary residential custody of his son.
The district court entered an Order for Limited Case Management, and attorney David N. Johnson was appointed as the case manager. He prepared two comprehensive reports and made recommendations based on interviews he had conducted with the parties and others connected with J.D.H., including extended family members, day care workers, teachers, and counselors.
Johnson’s first report recommended that the parties share joint legal custody of J.D.H. and that Monica be designated J.D.H.’s primary residential parent, with specific parenting time awarded to Adiel. Johnson emphasized: “Both parties appear to be very educated, reasonable, responsible, loving parents to [J.D.H.]. I have no doubt [J.D.H.] would thrive in the primary residential custody of either parent.” Johnson concluded:
“Monica has been [J.D.H.’s] primary (but certainly not exclusive) caretaker throughout his five (5)-year lifetime to date. With all of the statutory factors and other considerations being relatively equal . . . the deciding factor in this case comes down to which arrangement would most closely mirror the status quo. Although Adiel presents plausible arguments and supporting facts in his case for primary residential custody, there ultimately is no compelling reason to significantly change the arrangement that has existed all of [J.D.H.’s] life.”
Johnson s second report also recommended that Monica be designated J.D.H.’s primary residential parent with specific parenting time awarded to Adiel. Before the second report, Adiel reported concerns regarding J.D.H.’s emotional wellbeing, schooling, and health and'hygiene. He also reported an incident in which Monica left J.D.H. unattended. Monica’s religious beliefs and practices as a Jehovah’s Witness also arose as a potential issue. Johnson’s report concluded:
“[T]here are a number of questions/concems that made it difficult to arrive at a conclusion that would best serve [J.D.H.’s] interests in this updated Recommendation. Reasonably sound arguments can be made for either parent to be designated as having primary residential custody. Ultimately, the burden of proof is that a preponderance of the ‘evidence’ must favor a change in the existing primary residential placement. I am concluding that there is not a preponderance of evidence to establish that a change in the primary placement of [J.D.H.] with his mother should occur at this time.”
Adiel objected to Johnson’s recommendation, arguing that he should be awarded primary residential custody, and the parties proceeded to bench trial on that issue.
In opening statement, Monica’s counsel emphasized that she had been J.D.H.’s primary caregiver his whole life, while Adiel’s counsel stressed that Adiel had been an actively involved father. Counsel for Adiel also asserted that Monica’s religious teachings were harming J.D.H. and that Monica was alienating J.D.H. from Adiel.
Monica testified that Adiel was a good father but that he had not had extended parenting time with J.D.H. since J.D.H. was 3 years old. She said that she spoke very highly of Adiel in J.D.H.’s presence. Monica expressed her belief that she should continue to have primary residential custody because J.D.H. had been with her from the beginning; was grounded and excelling in school; and was happy with his religious activities. Monica admitted to having left J.D.H. at home alone at night on at least two occasions, with a police report filed in one instance. She also admitted to representing on one of J.D.H.’s school forms that a man was his stepfather when he was not.
During Monica’s cross-examination, her counsel objected to questions about her religious beliefs. The district court permitted the questions as “fair cross.” Monica testified that she was a member of the Watchtower Bible and Tract Society of the Jehovah’s Witness religion. Her faith, she said, prohibits the celebration of certain events, such as holidays and birthdays, as well as saluting the flag, saying the Pledge of Allegiance, and serving in the military. Certain extracurricular activities, such as sports, also are not encouraged. Monica testified that J.D.H. was not involved in school-related extracurricular activities. She also testified that her faith discouraged “unwholesome relationships,” which are distractions that deter a believer from doing what he or she is supposed to be doing. Relationships with some who are not Jehovah’s Witnesses qualify as unwholesome associations. According to Monica’s faith, all who reject Jehovah will be annihilated. She also testified about her religious practice of going door-to-door “witnessing” with J.D.H. and said that Adiel had been accommodating about her beliefs, as well as the religious training J.D.H. was receiving from her.
Monica also responded to a hypothetical scenario posed on cross-examination, saying that she would not consent to a blood transfusion even if it were necessaiy to save J.D.H.’s life. However, she also testified that, if such circumstances arose, she would talk to Adiel.
Monica’s trial testimony also focused on her dispute with Adiel over a “bring your mentor” pizza party at J.D.H.’s school. Monica maintained that it was not a “bring your father” party but admitted that she did not contact Adiel to tell him about it. She and Adiel also differed on which school J.D.H. should attend. Monica enrolled J.D.H. in a school other than the one to which he ordinarily would have been assigned, even though its academic rating was lower, because it was closer to her work and she believed it was a better fit for J.D.H. Adiel was not informed of the change until Monica dropped J.D.H. off for his first day.
Monica also testified about a 2001 incident in which she alleged that Adiel pushed her, resulting in the filing of a police report. She also expressed her fear at one point in time that Adiel would try to kidnap J.D.H., because Adiel had told her that he was not going to bring J.D.H. back. Monica also expressed concern that Adiel did not believe that all persons are equal.
Monica’s mother testified, describing Monica as a very good parent and the relationship between Monica and J.D.H. as very close. She also testified about one incident in which Monica left J.D.H. alone, believing that her husband was coming home. Monica’s mother reinforced Monica’s testimony that Jehovah’s Witnesses are not supposed to have relationships with unbelievers.
Sonya Atencio, a friend of Monica’s who provides day care for J.D.H., also testified. She described J.D.H. as a “wonderful ldd” who never struggled and was not unkempt or dirty while in her care.
Shane Vondracek, J.D.H.’s teacher at the time of trial, gave testimony via a deposition. Vondracek had participated in a parent-teacher conference with Monica in person and Adiel on the telephone. She also had participated in another telephone conversation with Adiel in which she told him about the pizza party designed to involve male role models. According to Vondracek, Adiel told her he would like to attend but could not because of short notice. Vondracek also testified that J.D.H. had not acted in a manner causing concern, despite his inability to participate in birthday celebrations at school. She also testified that J.D.H. did not misbehave and did not come to school unkempt. Vondracek said that J.D.H. showed no signs of future failure in school and that curriculum in various schools was standardized across the district.
Adiel testified that he is married and works at an engineering firm in the Kansas City area, where he lives. When he moved to California for school at Stanford shortly after J.D.H. was bom, he had hoped that Monica and J.D.H. would also move to California. They did not. Adiel set up a fund to support J.D.H. while he was out of state. Adiel admitted that he had not applied to any schools in Kansas and had not applied for any jobs in Wichita after he finished school.
Adiel further testified that there were periods of time when it had been difficult for him to have parenting time, including when Monica was arguing that Adiel was going to kidnap J.D.H. Adiel stated that he would never take J.D.H. away from Monica.- Adiel also discussed Monica’s unilateral decision making, including her decision to send J.D.H. to a different school. He also discussed the pizza party, which he said he did not learn about until the night before the event. Adiel testified that J.D.H. told him on-the telephone that he knew he would not be there because he was busy with a new baby and work, which made Adiel feel like his son thought he had abandoned him. Adiel recorded this conversation with J.D.H., as well as other conversations between them.
Adiel also expressed concern over behavioral changes that he said he had observed in J.D.H. He took J.D.H. to see a professional for therapy and did not discuss the professional’s report with Monica. Adiel also was concerned that J.D.H. had called other men in Monica’s life “dad” and had begun calling him “Adiel.” Adiel expressed concern that Monica was not looking after J.D.H.’s health and diet properly. Adiel stated that J.D.H. told him he was becoming frustrated with his mom and wanted to run away. Adiel acknowledged that J.D.H.’s current teacher said he was a happy kid and well adjusted in school.
Adiel testified that he had never heard Monica say that she would not allow a blood transfusion even if it were necessary to save J.D.H.’s life. Adiel stated that he would consent to any treatment. He also testified that he has not interfered with J.D.H.’s religious beliefs, even though he believed Monica’s religious practices and what she was teaching J.D.H. were alienatingJ.D.H. from him. Adiel is a Muslim.
Meighan Peifer, an early childhood educator, testified regarding time J.D.H. spent in her educational facility in Kansas City, where J.D.H. attended when he was in Kansas City with his father. Peifer described certain incidents with J.D.H. as “odd.” In one, J.D.H. “froze” during a school performance. In the other, J.D.H. was unresponsive when another student asked J.D.H. to come to his house. She said that J.D.H. was shaking and saying, “[N]o, my mom said no, that it was wrong,” when there was a school parade coinciding with the Fourth of July. Peifer expressed concern that J.D.H. was not developing personal autonomy, although all of his development in other areas was on target for his age. She said she had referred the family to a child psychiatrist because “something was off’for J.D.H. Peifer described Adiel as a very involved parent, and she said she believed it was very important that J.D.H. be able to make his own choices about religious practices or “emotionally, it is [going to] scar him for life.”
Adiel’s mother testified about the closeness of her son’s relationship with her grandson. She described Adiel as an excellent and caring dad and discussed the financial support Adiel had given to Monica while Adiel was away at school. She also testified about two incidents in which J.D.H. grew upset while with her. At a birthday celebration for his grandfather, J.D.H. stated, “I broke my promise” not to celebrate birthdays. Another time, when at his uncle’s house, J.D.H. refused to go inside because there was a flag outside of the door, which he described as an “idol.” She further testified that Adiel had been excluded from parenting decisions but had been allowed consistent parenting time since 2006. She also testified that she believed J.D.H. should have been placed in a school with higher academic ratings.
Adiel’s father also testified about Adiel and J.D.H., as well as J.D.H.’s school. His testimony was consistent with that of Adiel’s mother. He also said that he believed Monica’s religious practices had created greater tension in the bond between Adiel and J.D.H.
Adiel’s wife also testified regarding the pizza party issue. Her testimony on this point was consistent with her husband’s. She said J.D.H.’s teacher had not mentioned the pizza party, although she did seek Adiel’s participation in a mentoring program.
Case Manager Johnson testified about his recommendation. Before Johnson’s testimony began, Adiel’s counsel objected, arguing that Johnson’s reports were hearsay and that Johnson was acting as “judge junior.” There was no objection to the evidentiary standard Johnson invoked in arriving at his recommendations. The district judge permitted Johnson to testify and admitted Johnson’s reports into evidence.
Johnson testified that he met with Adiel and Monica and spoke over the telephone with several witnesses. Johnson’s testimony also included information from a report by the psychologist who saw J.D.H. after the recommendation by Peifer. The report stated that Monica’s family dynamic was unhealthy for J.D.H. and that much of his spiritual teaching involved the end of times and what would happen to people who did not follow Jehovah’s Witness’ teachings. Johnson testified that the information in the psychologist’s report was of concern. He also said that specific aspects of the report indicated that J.D.H. was being alienated from his father, but that the report also indicated J.D.H. still had a good bond with his father and stepmother. Johnson further explained that he was concerned about separation of church and state when he arrived at his recommendation.
Ultimately, Johnson said that he considered the impact “these things [are] having on the best interests of the child.” He described the residential custody decision as a close call, and he said the information revealed at trial about Monica’s unwillingness to consent to a blood transfusion for J.D.H. was concerning — potentially concerning enough to cause him to change his recommendation. Johnson also said it disturbed him to learn that Monica had left J.D.H. alone on more than the one occasion Johnson already knew about.
In regard to alienation, Johnson testified that Monica and Adiel were better than most parents involved in custody disputes and that J.D.H. had bonded with both parents. Johnson concluded that the “main reason” for his recommendation that Monica be the primary residential parent was that she had been the “primaiy caretaker” and “that there weren’t enough compelling reasons to justify a change — making a recommendation for a change in the existing status quo.”
Both parties filed post-trial briefs in the district court, focusing primarily on what role, if any, Monica’s religious beliefs and practices should play in the court’s decision.
In his memorandum decision, the district judge first noted: “This has been a difficult case for the Court. Both parents are capable and loving parents, and both naturally want to be the primary residential custodian for [J.D.H.].” He described the situation as ideal for shared custody, not possible because of the parties’ geographic distance from one another. He repeatedly referenced his understanding that he should not consider Monica’s religious beliefs and practices in his decision, but made clear that a parent could not be permitted to cloak alienation of the other parent in religion’s protective garb. He ultimately concluded: “[J.D.H.] is well adjusted to his current living arrangements, and although the Father has raised legitimate concerns, the Court has concluded that it is in [J.D.H.’s] best interests to retain primary residential custody with die Mother.”
On appeal to the Court of Appeals, Adiel argued that the district judge applied the wrong legal standard, treating this action as though it concerned modification of a prior child custody order rather than one seeking an initial custody determination. Adiel also argued generally that the district judge failed to give any negative impact on J.D.H. from Monica’s religious practices due consideration. In particular, he argued that the district judge erred by refusing to consider Monica’s attitude about potential necessary medical treatment of J.D.H., which would violate her religious beliefs. Monica responded that Adiel had failed to preserve his challenge to the legal standard applied, that the district judge followed a proper best interests of the child standard, and that Kansas precedent supported the district judge’s reluctance to evaluate her religious beliefs and practices.
A divided panel of our Court of Appeals affirmed. Harrison v. Tauheed, 44 Kan. App. 2d 235, 235 P.3d 547 (2010). Judge Michael B. Buser, writing for himself and Judge G. Joseph Pierron, concluded that the district judge had applied the correct legal standard to the evidence and that “a parent’s religious beliefs and practices may not be considered by the trial court as a basis to deprive that parent of custody unless there is a showing of actual harm to the health or welfare of the child caused by those religious beliefs and practices.” Harrison, 44 Kan. App. 2d at 236. Judge Nancy L. Ca plinger (now Justice Moritz) dissented, saying the district judge failed to “fully and consistently” apply the best interests of the child standard. Harrison, 44 Kan. App. 2d at 260 (Caplinger, J., dissenting). She also would not have required a showing of “actual harm to tire health or welfare of the child” before making a parent’s religious practices one of the factors to be weighed in arriving at a custody determination based on the child’s best interests. Harrison, 44 Kan. App. 2d at 263 (Caplinger, J., dissenting). To the extent one or the other parent’s religious views and practices “impact upon the child’s best interests,” she wrote, “they are admissible and should be considered.” Harrison, 44 Kan. App. 2d at 264.
We granted Adiel’s petition for review.
Analysis
The Legal Standard Used in the District Court
This court has repeatedly held that
“ ‘[w]hen the custody issue lies 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 omitted.]’ ” In re Marriage of Rayman, 273 Kan. 996, 999, 47 P.3d 412 (2002) (quoting In re Marriage of Whipp, 265 Kan. 500, 506, 962 P.2d 1058 [1998]).
See also K.S.A. 60-1610(a)(3) (mandating best interests standard, taking into account “all relevant factors”). Under an abuse of discretion standard, “the trial court’s decision is protected if reasonable persons could differ upon the propriety of the decision as long as the discretionary decision is made within and takes into account the applicable legal standards .... [A]n abuse of discretion may be found if the trial court’s decision goes outside the framework of or fails to properly consider statutory hmitations.” State v. Shopteese, 283 Kan. 331, 340, 153 P.3d 1208 (2007) (citing State v. Edgar, 281 Kan. 30, 36-38, 127 P.3d 986 [2006]); see State v. Gonzalez, 290 Kan. 747, 755-56, 234 P.3d 1 (2010). Determination of the correct legal standard raises a question of law subject to de novo appellate review. See In re M.F., 290 Kan. 142, 150, 225 P.3d 1177 (2010) (citing State v. Moore, 287 Kan. 121, 135, 194 P.3d 18 [2008]).
Adiel argues that district judge’s memorandum decision shows that the judge followed Johnson into error by applying an incorrect legal standard to evaluate the evidence before him. In his view, first Johnson and then the district judge demanded that he demonstrate a compelling reason to have J.D.H.’s living arrangement changed. This pattern of analysis, Adiel asserts, improperly allocated to him “a burden of proof to alter the status quo” or forced him to overcome a presumption or “super factor” in favor of residential custody remaining with Monica. See K.S.A. 60-1610(a)(3)(C):
“Neither parent shall be considered to have a vested interest in the custody or residency of any child as against the other parent, regardless of the age of the child, and there shall be no presumption or that it is in the best interests of any infant or young child to give custody or residency to the mother.”
Although such a pattern may govern when a change in custodial status is sought, see K.S.A. 60-1610(a)(2) (court may change any prior order of custody, residency, visitation, parenting time when material change of circumstances shown), it does not govern an initial custody determination under K.S.A. 60-1610(a)(3)(B).
Monica reads the district judge’s memorandum decision differently. She believes that the district judge properly applied the best interests of the child standard pursuant to K.S.A. 60-1610(a)(3)(B), and she emphasizes that the statute’s list of factors is not exclusive. Monica argues that the district judge was forced to “look outside the box for a reason to appoint one party over the other as residential custodian,” and he made a legally legitimate choice to place persuasive weight on the living arrangement that had existed for all of J.D.H.’s life.
The majority of the Court of Appeals panel first ruled that Adiel failed to raise this issue before the district court. It nevertheless addressed the merits, concluding:
“Our review of the trial court’s memorandum decision convinces us the correct legal standard and statutory factors were applied in this case. In particular, in its ‘Summary of the Court’s ruling,’ the trial court explicitly stated that after weighing the evidence it had reached a conclusion to award Monica residential custody based on ‘[J.D.H.’s] best interests.’ ” Harrison, 44 Kan. App. 2d at 241.
The majority determined that “the trial court explicitly identified the proper statutory factors to be considered” in determining the best interests of the child. Harrison, 44 Kan. App. 2d at 241. The district judge’s use of the phrase “compelling reason” was “never made in the context of referencing a legal standard,” but instead merely to reference “the weight of the evidence in favor of maintaining the existing residency arrangement.” Harrison, 44 Kan. App. 2d at 241-42. Moreover, there was “no showing the trial court relied on Johnson for any legal standard.” Harrison, 44 Kan. App. 2d at 243.
Judge Caplinger dissented on the merits of this issue, accepting Adiel’s argument that the district court erred by demanding proof of a “compelling reason” to change residential custody. Harrison, 44 Kan. App. 2d at 261-62. She would have remanded the case to the district court “with instructions to consistently apply the ‘best interests of the child’ standard to this initial custody determination.” Harrison, 44 Kan. App. 2d at 262.
We are satisfied that this issue has been adequately preserved for appellate review. The question of whether the district judge applied the correct legal standard in evaluating the evidence did not fully surface until the filing of his memorandum decision. Adiel then took advantage of his appeal to the Court of Appeals as a timely opportunity to raise it. We granted an unlimited review of the matter, which means we are free to examine any issue that was before the Court of Appeals. See Supreme Court Rule 8.03(g)(1) (2010 Kan. Ct. R. Annot. 68).
Turning to the merits, the parties do not dispute that the best interests of the child must control a district judge’s initial custody determination. See K.S.A. 60-1610(a)(3); see In re Marriage of Rayman, 273 Kan. at 999; Jensen v. Runft, 252 Kan. 76, Syl. ¶ 2, 843 P.2d 191 (1992). Further, the parties have not alleged a lack of substantial competent evidence to support the district judge’s factual assessment. The only question, therefore, is whether the district court properly employed a best interests of the child analysis, upon which all agree.
K.S.A. 60-1610(a)(3)(B) provides a nonexclusive list of factors to be considered by a district court in determining the best interests of the child:
“(i) The length of time that the child has been under the actual care and control of any person other than a parent and the circumstances relating thereto;
“(ii) the desires of the child’s parents as to custody or residency;
“(iii) the desires of the child as to the child’s custody or residency;
“(iv) the interaction and interrelationship of the child with parents, siblings and any other person who may significantly affect the child’s best interests;
“(v) the child’s adjustment to the child’s home, school and community;
“(vi) the willingness and ability of each parent to respect and appreciate the bond between the child and the other parent and to allow for a continuing relationship between the child and the other parent;
“(vii) evidence of spousal abuse;
“(viii) whether a parent is subject to the registration requirements of the Kansas offender registration act, K.S.A. 22-4901, et seq., and amendments thereto, or any similar act in any other state, or under military or federal law;
“(ix) whether a parent has been convicted of abuse of a child, K.S.A. 21-3609, and amendments thereto;
“(x) whether a parent is residing with an individual who is subject to registration requirements of the Kansas offender registration act, K.S.A. 22-4901, etseq., and amendments thereto, or any similar act in any other state, or under military or federal law; and
“(xi) whether a parent is residing with an individual who has been convicted of abuse of a child, K.S.A. 21-3609, and amendments thereto.”
We must carefully review the language the district judge used in his memorandum decision to decide whether he applied the required legal standard, including these factors and others merited by the case. The district judge’s memorandum decision discusses at least (ii), (iii), (iv), (v), and (vi) among the statutory factors, and his summary of his ruling explicitly invokes best interests of the child.
We note that the judge acknowledged Adiel’s allegation of alienation unrelated to Monica’s religious practices, specifically her failure to communicate on school-related functions, which left Adiel unable to participate. The judge also explicitly recognized and evaluated the evidence concerning Adiel’s accusation that Monica left J.D.H. home alone. Regarding the latter, the judge stated: “While these events should not be minimized (whether it was one occurrence or two, it was one or two too many), they do appear to be isolated occurrences. Taking into account consideration [of] the bigger picture, there is no evidence that [J.D.H.] is suffering from neglect.” Although Adiel also had alleged poor hygiene, the district judge found that photographs submitted by Adiel depicted the “normal dirt and grime that children of [J.D.H.’s] age attract during regular play” and that there was “no evidence that [J.D.H.’s] hygiene was of concern to his teachers.”
The judge next considered the “[interaction of the child with his parents and the willingness of each parent to respect the bond between the child and the other parent.” He concluded: “He gets along well with both parents, and is well bonded to both parents.” The judge agreed with Johnson’s observation that J.D.H. “ would thrive in the primary residential custody of either parent.’ ”
The judge then addressed “other acts of alienation,” namely Adiel’s allegation that Monica did not keep him informed of important school events. The judge stated: “It is clear from the evidence presented at trial that Mother is less concerned about involving Father in events important to [J.D.H.] than she should be” and that “[t]he effort by one parent to undermine a child’s relationship to the other parent can form the basis for a change of custody.” He concluded, however, that Monica had not “intentionally” tried to harm Adiel’s relationship with J.D.H. and that, in fact, J.D.H. and Adiel have a “healthy relationship.”
The judge also considered the desires of the parents and J.D.H., stating that “[b]oth parents desire to be the residential custodian” and “[J.D.H.] seems comfortable with both parents.”
The judge also “placed great weight” on the “[l]ength of time [J.D.H.] has spent with each parent and his adjustment to his home, school and community.” He determined that “Mother has been [J.D.H.’s] primary residential custodian since birth” and that J.D.H. was “well adjusted” and a “very successful student.” Although tire length of time a child has spent with one of his or her parents is not listed in the statute, it is certainly an appropriate consideration. See La Grone v. La Grone, 238 Kan. 630, 633, 713 P.2d 474 (1986) (one factor: which parent has had actual care, custody of child during child’s lifetime).
Finally, the judge noted: “Once those factors related to religion are removed from this case, what is left is a very bright little boy who is well adjusted to his current living environment.” He thus reached the same conclusion Johnson had reached in his written reports, that is, that residential custody should remain with Monica.
The district judge’s choice to “place great weight” on the length of time J.D.H. had spent with each parent and his adjustment to his home, school, and community was selected as part of application of the correct legal standard and was not an abuse of discretion for deviation from that standard. Placing “great weight” on the length of time a child has spent living with a parent as part of a court’s analysis of the best interests of the child was different from treating a parent as though he or she has a “vested interest in the custody or residency” of that child, which would have been impermissible pursuant to K.S.A. 60-1610(a)(3)(C). Further, as the Court of Appeals majority noted, the judge’s decision did, not reference K.S.A. 60-1610(a)(2)(A), the statute governing modification of a prior custody order, and the district court’s decision did not use the term “material change of circumstances.” Harrison, 44 Kan. App. 2d at 242. Rather, the judge plainly arrived at his ultimate decision on residential custody by exploring what would best serve J.D.H.’s best interests. There is no reversible error on this issue.
Propriety of Consideration of Mothers Religious Beliefs and Practices
Again, failure to apply the correct legal standard is an abuse of discretion. See Gonzalez, 290 Kan. at 755-56. Also, we have plenary review to determine whether a legal standard was correct. See In re M.F., 290 Kan. at 150; Owen Lumber Co. v. Chartrand, 283 Kan. 911, 916, 157 P.3d 1109 (2007).
Adiel argues that “[t]he trial court erred in refusing to consider all the evidence related to the negative impact upon [J.D.H.] that was caused by Monica Harrison’s religious beliefs and practices.” Although “[b]y itself, the mother’s religion and her beliefs are beyond the scope of the trial court’s inquiry,” he asserts that it is proper for a district court to consider “evidence of the negative impact upon the child and the negative impact to the relationship with the parent . . . even if it is caused by religious beliefs and practices.” Adiel further argues that Monica’s “medical philosophy [opposing blood transfusions] towards [J.D.H.] is not in his best interests.” Adiel’s position is that “[t]rial courts are not prohibited under the best interest analysis from considering the medical philosophies of a parent as it bears upon future medical treatment.” According to Adiel, the majority of the Court of Appeals improperly concluded that “there must be a requisite showing of ‘actual harm’ ” before religious beliefs and practices can be considered in determining the best interests of the child.
Monica responds that the district court “correctly noted that Kansas case law prohibited the Court from considering these [religious] factor[s] in determining custody” and that “[t]he Court of Appeals correctly restated and applied the legal standard for use of religious testimony in a ‘best interests’ hearing.”
Best interests of the child analysis is complicated when a parent’s rights may conflict. See, e.g., In re Cooper, 230 Kan. 57, 62-63, 631 P.2d 632 (1981), superseded by statute on other grounds, as recognized by In re 285 Kan. 375, 172 P.3d 1 (2007); In re Armentrout, 207 Kan. 366, 370, 485 P.2d 183 (1971). Further, one parent’s rights may conflict with the rights of the other parent. Although the best interests of the child are always to remain the paramount consideration of the court in making a custody determination, we have explained that “[t]he parents’ rights cannot be disregarded, . . . and the child’s best interests may be considered in conjunction with the parents’ rights.” In re Cooper, 230 Kan. 57, 62, 631 P.2d 632 (1981) (citing In re Armentrout, 207 Kan. 366, 370, 485 P.2d 183 [1971]; Lennon v. State, 193 Kan. 685, 691, 396 P.2d 290 [1964]).
“A parent’s right to make decisions regarding the care, custody, and control of his or her child is a fundamental liberty interest protected by the Fourteenth Amendment.” In re J.D.C., 284 Kan. 155, 166, 159 P.3d 974 (2007) (citing Troxel v. Granville, 530 U.S. 57, 65-66, 120 S. Ct. 2054, 147 L. Ed. 2d 49 [2000]; Sheppard v. Sheppard, 230 Kan. 146, 152, 630 P.2d 1121 [1981], cert. denied 455 U.S. 919 [1982]). Further, all individuals in Kansas have the right to religious freedom, protected by both the First and Fourteenth Amendments of the Constitution of the United States and the Kansas Bill of Rights. Kan. Const. Bill of Rights, § 7; Employment Div., Ore. Dept. of Human Res. v. Smith, 494 U.S. 872, 876, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990) (citing Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S. Ct. 900, 84 L. Ed. 1213 [1940]).
Custody cases impheating questions of religious belief and practice require a delicate balancing of the rights of each parent and the welfare of the child whose custody is in question. Prior cases from this court, Beebe v. Chavez, 226 Kan. 591, 602 P.2d 1279 (1979), Sinclair v. Sinclair, 204 Kan. 240, 461 P.2d 750 (1969), Jackson v. Jackson, 181 Kan. 1, 309 P.2d 705 (1957), and have provided some guidance to the lower courts on this subject, yet additional clarification is needed to enable review of the district judge’s performance here.
In Jackson, the father moved for a change in custody, which was granted by the district court. Mother appealed, arguing that “ ‘the real, underlying reason for depriving her of custody was her membership in Jehovah’s Witnesses and training the children in that faith’ ” and that the “ ‘ “emotional instability” argument against her . . . was a mere subterfuge.’ ” Jackson, 181 Kan. at 4. This court concluded that the “question of religion ... permeates the record.” Jackson, 181 Kan. at 5. We noted that “[t]he evidence in trial was replete with testimony and exhibits as to the tenets of Jehovah’s Witnesses and the possible effect of such beliefs upon the children.” Jackson, 181 Kan. at 5. Thus the “only question upon this appeal is whether or not the court abused its discretion by allowing the matter of religion to become an integral part of its determination of this custody matter.” Jackson, 181 Kan. at 8
Jackson held that “the court abused its discretion in allowing the matter of religion to become an integral part of its decision to change custody,” that “the question of religion cannot be regarded by the court in determining the care, custody and control of minor children . . . and in a dispute relating to custody, religious views afford no ground for depriving a parent of custody who is otherwise qualified,” and that “[r]eligious freedom, as guaranteed by our Constitution, should be faithfully upheld, and religious teachings to the children . . . regardless of how obnoxious the same might be to the Court . . . should not and must not be considered as basis of malting child custody orders.” (Emphases added.) Jackson, 181 Kan. 1, Syl. ¶¶ 1, 5, 6.
Justice Robert Price, joined by Justice William Wertz, dissented, arguing:
“If a divorced parent’s extreme religious views and activities are such as to result in emotional instability in such parent, then most certainly I feel that a trial court has not only the right, but the duty, to take such fact into consideration in the determination of what appears to be the welfare and best interests of the child.” Jackson, 181 Kan. at 12.
In Sinclair, the father was awarded custody of the children in a divorce action and the mother appealed. 204 Kan. at 241. Mother had become a Jehovah’s Witness and “had become so obsessed with her religious beliefs and activities that she completely neglected her duties and a wife and mother,” including moving away from the home and maintaining little contact with her family. Sinclair, 204 Kan. at 241-42. Mother argued that the district court’s decision was “based solely on the ground of religion, which is impermissible.” Sinclair, 204 Kan. at 244. This court distinguished Jackson, stating:
“The import of our holding in Jackson was that religious views alone afford no ground for depriving custody to a parent who is otherwise qualified. Here, the religious beliefs of [Mother] precipitated a course of action on her part of utter disregard and indifference to her children and their activities.” (Emphases added.) Sinclair, 204 Kan. at 244.
The court stressed that “[t]he paramount consideration of the court in custody cases between parents is always the welfare and best interests of the children” and concluded that the district court did not abuse its discretion in awarding custody to the father. Sinclair, 204 Kan. at 244.
In Beebe, father filed a habeas corpus action seeking custody of his son. Mother, characterized by the district court as a “ ‘nonsecretarian religious sermonizer,’ ” had been granted custody in an Arizona divorce decree, but the Kansas district court determined that there had been a change in circumstances necessitating a switch in custody to father. Beebe, 226 Kan. at 597, 601.
On appeal, this court first noted that the absence of an emergency meant that the courts of Arizona had continuing jurisdiction and that the Kansas courts should not have intervened. Beebe, 226 Kan. at 599. However, we addressed the merits, “assuming that jurisdiction was properly exercised.” Beebe, 226 Kan. at 601. Regarding the district court’s finding that the child was not receiving proper medical attention in Mexico, where he and mother were living part of the time, this court noted that the child had emerged from that period healthy. Beebe, 226 Kan. at 602.
“[Mother] was not questioned as to her religious beliefs concerning medical treatment, and the evidence of her beliefs is sparse. Assuming, however, that her religion does discourage or prohibit the use of drugs or medications, or treatment by physicians, is that a valid reason to change custody? Christian Science, a denomination with wide membership, has similar teachings; it discourages as unnecessary the use of drugs or treatment by physicians; yet though such beliefs may be ‘unorthodox’ to the trial judge, they are constitutionally protected and form no basis for denying or changing custody.” (Emphasis added.) Beebe, 226 Kan. at 602.
The court then quoted from Jackson and concluded that mother’s custody should not have been terminated. Beebe, 226 Kan. at 602-OS.
Then Chief Justice Alfred Schroeder dissented, joined by Justices Alex Fromme and Kay McFarland. Beebe, 226 Kan. at 603-608. He argued: “The question in this case goes beyond religious freedom. Here the trial court was concerned that appellant’s religious beliefs had led to neglect of [the child’s] health.” Beebe, 226 Kan. at 606. Chief Justice Schroeder then concluded: “If the religious beliefs of a parent threatened a child’s health or well-being, or would lead to neglect of the child, the adverse effects upon the child may be considered in making a change of custody.” Because the “trial court clearly concerned itself with the appellant’s religion as it affected [the child’s] health and education, it cannot be said the trial court abused its . . . discretion.” Beebe, 226 Kan. at 606-07.
The majority of the Court of Appeals panel in this case reviewed these Kansas cases and believed they demonstrate that Kansas courts have distinguished between “State disapproval of religion, which is improper under our constitution, and State disapproval of actual harm suffered by children as a result of religious beliefs and practices.” Harrison, 44 Kan. App. 2d at 248. The majority thus held that Kansas law prohibits a parent’s religious beliefs and practices from being considered in a custody determination, absent a threshold showing of actual harm to the health or welfare of the child caused by those religious beliefs and practices. Harrison, 44 Kan. App. 2d at 248.
Judge Caplinger’s dissent, in contrast, argued that Kansas precedent does not require a threshold showing of “actual harm”; “impact” on the best interests of the child is enough. Harrison, 44 Kan. App. 2d at 264. Still, Judge Caplinger stated that courts must “be mindful” not to make a parent’s religious beliefs and practices the “sole deciding factor” and “be mindful” of each parent’s two constitutional rights — freedom to exercise care, custody, and control of his or her child and freedom to exercise his or her religion without government interference. Harrison, 44 Kan. App. 2d at 267.
We are of the view that neither the majority opinion nor the dissenting opinion from the Court of Appeals got the standard for consideration of a parent’s religion in child custody proceedings completely correct, although each has correct elements and any confusion is understandable. In Jacltson, some of this court’s language suggested a bright-line rule: religious beliefs and practices could play no role in custody determinations. 181 Kan. 1, Syl. ¶¶ 1, 5, and 6. In Sinclair, however, this court blurred the line, instead saying Jackson held that “religious views alone afford[ed] no ground for depriving custody to a parent who [was] otherwise qualified.” (Emphasis added.) 204 Kan. at 244. This court also emphasized in Sinclair that the “paramount consideration” for custody always remains the best interests of the child. 204 Kan. at 244. Beebe also stressed that religious belief alone, including belief regarding the propriety of specific medical treatment, is “constitu tionally protected and [can] form no basis for denying or changing custody.” 226 Kan. at 602.
The majority of the Court of Appeals apparently was led to its actual harm threshold because Sinclair hinged on the behavioral change the mother’s religious beliefs “precipitated,” i.e., “utter disregard and indifference’ ” to her children. Harrison, 44 Kan. App. 2d at 248. But, as Judge Caplinger observed, the court in Sinclair “did not restrict the trial court’s consideration to such egregious circumstances.” Harrison, 44 Kan. App. 2d at 263.
Instead, what we discern in our previous cases, including Sinclair, is an attempt to differentiate between religious beliefs on the one hand and religiously motivated actions or conduct with implications for the paramount best interests of the child on the other. Disapproval of mere belief or nonbelief cannot be a consideration in a custody determination — judges are not trained to mediate theological disputes. Yet consideration of religiously motivated behavior with an impact on a child’s welfare cannot be ignored. It is one of the many relevant factors that must be part of the holistic custody calculus required under Kansas law. See K.S.A. 60-1610(a)(3)(B) (“In determining the issue of child custody, residency and parenting time, the court shall consider all relevant factors.”).
With that as theorem, we move to corollaries. Just as mere religious beliefs cannot be solely determinative of custody, a court may not speculate about behavior that religious beliefs may motivate in the future. See Beebe, 226 Kan. at 602; Sinclair, 204 Kan. at 244. A court also may not weigh the merit of one parent’s religious belief or lack of belief against the other’s. Nothing in law school or practice in any setting qualifies a judge for this task, and any judicial effort to tackle it is far too likely to lead to the substantial impairment of the free exercise of religion our federal and state constitutional provisions were designed to avoid. Courts must be vigilant to avoid invidious discrimination against religious beliefs or practices merely because they seem unconventional. The consideration of religiously motivated actions as a part of holistic evaluation of the best interests of the child, while excluding consideration of religious beliefs, strikes an appropriate balance among the free exercise rights of each parent; the right of each parent to the care, custody, and control of his or her child; and the welfare of the child. See Smith, 494 U.S. at 879 (“[T]he right of free exercise does not reheve an individual of the obligation to comply with a Valid and neutral law of general applicability on the ground that the law proscribes [or prescribes] conduct that his religion prescribes [or proscribes].’ [Citation omitted.]”); Wisconsin v. Yoder, 406 U.S. 205, 233-34, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972) (“[T]he power of the parent, even when linked to a free exercise claim, may be subject to limitation ... if it appears that parental decisions will jeopardize the health or safety of die child.”); but see Shulman, What Yoder Wrought: Religious Disparagement, Parental Alienation and the Best Interests of the Child, 53 Vill. L. Rev. 173, 205-08 (2008); Note, Free Exercise Claims in Custody Battles: Is Heightened Scrutiny Required Post-Smith?, 108 Colum. L. Rev. 716, 734-36, 740-41 (2008) (discussing the applicability of the concept of hybrid rights to child custody determinations).
Our research into how our sister states have dealt with the doctrinal and emotional tension inherent when religion and child custody become intertwined satisfies us that the clear distinction we draw today between beliefs and action is endorsed by other courts. See 124 A.L.R.5th 203, § 2[a] (“While it would presumably be possible to leave the religious factor entirely out of consideration, at least formally, most of the courts have taken the view that while they will adopt an attitude of strict impartiality between religions and will not disqualify any applicant for custody because of the faith the applicant follows . . . the religious factors involved in an award are a proper matter to be considered by the court in determining what decision is best for the general welfare of the child, temporally considered.”); Waites v. Waites, 567 S.W.2d 326, 333 (Mo. 1978) (‘We hold that no judicial officer may determine child custody based on approval or disapproval of the beliefs, doctrine, or tenets of the religion of either parent or their interpretation thereof. We recognize it would be impossible and unrealistic to expect courts to ignore the existence of religion or to be blind to its place in our mores. But there is a vast difference between concentrating on the religious choice of a parent as compared to con centrating on what is best for the child.”); Pater v. Pater, 63 Ohio St. 3d 393, 397-98, 588 N.E.2d 794 (1992) (“Courts have repeatedly held that custody cannot be awarded solely on the basis of the parents’ religious affiliations and that to do so violates the First Amendment to the United States Constitution .... On the other hand, a parent’s actions are not insulated from the domestic relations court’s inquiry just because they are based on religious beliefs, especially actions that will harm the child’s mental or physical health.”).
Likewise, we see support in other jurisdictions for our caution regarding speculation about future behavior that religious beliefs may motivate. See, e.g., Varnum v. Varnum, 155 Vt. 376, 385, 586 A.2d 1107 (1990) (“We are also concerned about the use of the finding that defendant would not allow her children to have blood transfusions even if medically necessary, in the absence of any evidence that such an eventuality is likely and cannot be resolved in ways other than depriving defendant of custody.”); Garrett v. Garrett, 3 Neb. App. 384, 395, 527 N.W.2d 213 (1995) (“Likewise, regarding [Mother’s] refusal to consent to a blood transfusion for her children even in the event of an emergency, no evidence was presented showing that any of the minor children were prone to accidents or were plagued with any sort of affliction that might necessitate a blood transfusion in the near future. We cannot decide this case based on some hypothetical future accident or illness which might necessitate such treatment.”).
It also appears our sister states share our wariness of interference with the fundamental right to religious freedom that court comparison of beliefs or lack of beliefs between parents is likely to foster. See 124 A.L.R.5th 203, § 3 (listing cases “supporting] the view that a court in a child custody proceeding cannot pass on the comparative merits of various religions”); Osteraas v. Osteraas, 124 Idaho 350, 355, 859 P.2d 948 (1993) (“It is thus clear that the trial court’s distinction between religion and lack thereof cannot prevail against provisions stated in the United States Constitution.”); Waites, 567 S.W.2d at 333 (“Any suggestion that a state judicial officer was favoring or tending to favor one religious persuasion over another in a child custody dispute would be intolerable to our organic law.”); LeDoux v. LeDoux, 234 Neb. 479, 485, 452 N.W.2d 1 (1990) (“Courts must preserve an attitude of impartiality between religions and may not disqualify a parent solely because of his or her religious beliefs.”); In re Marriage of Decker, 666 N.W.2d 175, 179 (Iowa App. 2003) (“We do not favor one religion over another in a custody determination.”); but see Pietrzak v. Schroeder, 759 N.W.2d 734, 744-45 (S.D. 2009) (“The manner in which a parent encourages his or her child to practice a religion is a legitimate factor for trial courts to consider when awarding custody.”).
Turning to the question of whether the district judge correctly applied this clarified legal standard when arriving at his initial custody determination in this case, we conclude that the judge properly distinguished between religious belief and religiously motivated conduct having an impact on the best interests of the child. Despite his protestations to the contrary, it is apparent from the judge’s memorandum decision that he did in fact consider religiously motivated action. But he stopped there. He did not improperly consider religious belief alone or allow speculation about conduct potentially affecting the child.
The judge first considered “the degree to which the Court may consider Monica’s religious practices in making a determination of the residential custody of [J.D.H.].” He cited two decisions of this court and two decisions of the Court of Appeals in his assessment as to what extent religious practices could be considered. The judge noted that religious views cannot deprive a person of custody who is otherwise qualified, Denton v. James, 107 Kan. 729, 736, 193 P. 307 (1920), and that freedom of religion prevents a court from considering “solely” religion, Anhalt v. Fesler, 6 Kan. App. 2d 921, Syl. ¶ 3, 636 P.2d 224 (1981). The judge also explained that a court must segregate factors that are proper for consideration from legitimate religious practices, citing Jackson, 181 Kan. at 11. The judge then noted that a parent cannot hide behind religion to alienate a child from the other parent, citing In re Marriage of Cobb, 26 Kan. App. 2d 388, 988 P.2d 272 (1999). He then went on to address the evidence presented at trial by Adiel regarding Monica’s religious beliefs and practices.
The judge divided Adiel’s concerns based on Monica’s religious beliefs and practices into the following categories: (1) “Father contends that the Mother’s religious practices are alienating him from his son”; (2) “Father further contends that Mother’s religious practices are creating problems for his son’s social interactions with other children”; (3) “Father contends that [J.D.H] is being forced to participate in activities associated with the Jehovah’s Witnesses which are not in his best interests”; and (4) “Father contends that the Jehovah’s Witness prohibition on blood transfusion, and the Mother’s reluctance to disavow this prohibition as it relates to the possible future medical needs of [J.D.H.], creates an unacceptable risk that [J.D.H.] would not receive medically necessary healthcare.”
In regard to the claim that J.D.H. experienced social anxiety in connection with holiday celebrations, the district court stated: “While this is a concern to the Court, ultimately the Court must respect Mother’s religious practices. Case law which is binding precedent on this Court prohibits consideration of matters direcdy associated with decisions a parent makes in an effort to put into practice the teachings of that parent’s faith.” With respect to J.D.H. disliking going door-to-door with his mother to teach about the Jehovah’s Witnesses, the judge stated: “Kansas case law prohibits the Court from considering these factors.” He nevertheless went on to find that “these activities do not appear to have any adverse impact on [J.D.H.].” We first observe that it is ever important for any district judge examining claims such as those advanced by Adiel to analyze whether any anxiety, doubt, frustration, or guilt a child may suffer from being identified with a particular religious group is due to our society’s tendency to bestow public recognition or endorsement upon a different, dominant religious group. The district judge in this case appears to have grasped this point. And, because of the district judge’s factual finding that J.D.H. did not seem to be adversely affected, we need not further discuss here whether a child’s general discomfort or uneasiness stemming from participation in a parent’s religious practices can ever influence a custody decision in favor of the other parent.
Adiel also argued to the district judge that he was being alienated from his son because the Jehovah’s Witnesses believe only they will survive annihilation, a claim the district judge stated “is a particularly thorny issue for the Court to wade through.” The judge stated: “The teachings of the Jehovah’s Witnesses, including those that teach non-Jehovah’s Witnesses will suffer annihilation, may not be considered by this Court in deciding custody issues.” He went on to state, however, that “while Mother has the constitutional right to raise [J.D.H.] as a Jehovah’s Witness, she cannot hide behind this right to alienate [J.D.H.] from his father” and that “Mother should respect the bond [J.D.H.] has with his father.” In other words, the judge properly disregarded Monica’s religious belief alone, while noting that her professed belief could not be used to shield inquiiy into acts of alienation.
The district judge was most clearly troubled with Monica’s beliefs concerning blood transfusions. He stated: “Of greater concern to the Court is the practice by Jehovah’s Witnesses prohibiting the use of blood products. . . . [I]t was clear to the Court that Mother was not going to disavow the teachings of the Jehovah’s Witnesses on the use of blood products.” He urged this court to reconsider what he believe to be Beebe’s rule prohibiting consideration of a religious practice discouraging medical treatment. The district judge also noted Johnson’s revised recommendation at trial based on Monica’s testimony regarding the use of blood products, but he determined that “the limited case manager’s revised recommendation is of little use since it depends in no small part on consideration of factors which the Court constitutionally may not take into account.” Although it obviously made the district court uncomfortable, he proceeded correctly, albeit for the wrong reason. It would not have been appropriate for him to speculate about an unlikely future event; and, in fact, Monica testified that she would consult Adiel in the event a blood transfusion was recommended for J.D.H. In such a case, Adiel would be empowered to consent to the treatment for his minor son.
In conclusion, although the district judge attempted to cabin his consideration of Monica’s religion, it is apparent from the rest of his decision that he did not in fact categorically exclude all matters religious from his examination. Instead, while he properly excluded religious belief alone and refused to speculate about potential religiously motivated conduct in the future, he did in fact consider the ways in which current religiously motivated conduct affected J.D.H.’s best interests. This was the right approach, striking the delicate balance necessary in this difficult area. There was no abuse of discretion for failure to apply the correct legal standard.
The majority of the Court of Appeals is affirmed; the district court is affirmed.
Johnson and Moritz, JJ., not participating.
Charles E. Andrews, Jr., and David L. Stutzman, District Judges, assigned. | [
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The opinion of the court was delivered by
Kingman, O. J.:
Two questions are presented in this case: First, The action is brought against “ School District No. 14, of Atchison County, Kansas.” The law makes each School District organized under the law, a body corporate by the name and style of “School District No.-,-County, State of Kansas.” The error is, leaving out the words “ State °£>” ™ name °f the corporation. The defendairt answered the petition on the merits, and a reply was duly filed. On the trial the defendant objected to the introduction of testimony by the plaintiff because of the defect above stated. The error could not be taken advantage of in this way. It must be raised in the pleadings. Formerly it could only be taken advantage of by plea in abatement. 1 Chitty Pl., 451; Gilbert v. Nantucket Bank, 5 Mass., 97; Com. v. Dedham, 16 Mass., 141; Trustees of M. E. Church v. Tryon, 1 Denio, 451; Gray v. Mongahela Nav. Co., 2 Watts & Serg., 156. The objection to evidence only goes to the point of whether the petition states facts sufficient to constitute a cause of action; not to such a defect as the one under consideration.
Second: This is error of the court in refusing to grant a new trial because the verdict is against the evidence. The record contains all the evidence, and it has been examined with care. The facts necessary to make out the plaintiff’s right of action are abundantly sustained, and about ° . n* rrn them there is little conflict. Ihe greater number of the witnesses sustain the defense set up to defeat the action, while the plaintiff unqualifiedly testifies against the witnesses for defense; and some of the undisputed facts tend to sustain his testimony. It seems to us that it would have been proper for the court below to have granted a new trial. A re-examination of the questions in dispute, by another jury, would have been likely to promote the cause of justice. But as has been frequently decided, this court will not order a new trial because there seems a preponderance of evidence against the verdict. To weigh the evidence was the special province of the jury. If their verdict was wrong, the court below ought to have given a new tidal. That court, like the jury, saw the witnesses, heard the testimony, and was in a more favorable position to form an opinion than this court. "We cannot, when there is such a conflict in the evidence, reverse the decision of the court below in refusing to grant a new trial. The judgment is affirmed.
Brewer, J., concurring. | [
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The opinion of the court was delivered by
Beier, J.:
This is a direct appeal in defendant Asa Adams’ first-degree felony-murder case. Adams argues that the district judge erred in his answer to a jury question and in giving an expert witness instruction and that she received ineffective assistance of counsel, necessitating a new trial. We affirm.
Factual and Procedural Background
Adams’ felony-murder conviction arose out of events on May 16, 2007, when she was home alone with her two children, 1-year-old Shymire and 4-month-old Righteous. Early that evening, Adams placed Shymire in a bath. Ultimately, she called 911 because Shy-mire needed emergency medical care. Exactly what transpired between was subject to dispute before the district court.
When Shymire reached the hospital, she was treated for head trauma, severe bums to her lower legs and feet, and other injuries. Despite efforts to save her, Shymire was declared brain dead on May 22, 2007, and the court ordered her life support to be terminated on May 24, 2007. Shymire’s heart stopped beating soon after.
Adams was charged with first-degree felony murder, predicated upon felony child abuse, as defined in K.S.A. 21-3609. She pleaded not guilty.
The State’s theory of the case was that medical evidence established Shymire’s cause of death as traumatic brain injury, complicated by severe bums and other injuries, and that Adams was the only person with an opportunity to inflict the injuries. Its evidence consisted of testimony from medical first responders, police officers, an apartment manager, treating physicians, and a medical examiner. The defense theory of the case was that Shymire’s injuries resulted from accidents and were unintentionally exacerbated by defendant’s untrained effort to resuscitate her daughter. Adams was the only defense witness. Her lack of memory of certain events was attributed to her illegal dmg use on the day of Shymire’s injuries and the stress of the entire ordeal.
Given Adams’ claim that she received ineffective assistance of counsel at her trial, and the requirement that we pass on prejudice, it is necessary to include the following extensive review of the evidence presented to the jury and the evidence supporting Adams’ motion for new trial.
The State’s first trial witness was Chad Maugans, a paramedic from Sedgwick County EMS. He testified that he and his partner were dispatched to a seizure call at Adams’ apartment and arrived there at 5:18 p.m. During the drive, the call was recategorized to a choiring injury. Upon his entry into the apartment, he testified, Shymire was seated on the couch and had little to no consciousness. She was staring ahead of her, making no noises. Maugans noticed burns on her leg and feet and observed mucus in her nose and mouth, although she was breathing. He cleared her airways. As she was being moved to the ambulance, Maugans notified the hospital that it had a burn victim on her way. On route, Maugans said, he continued to treat Shymire and noticed petechial hemorrhages in her eyes and ligature marks around her neck, injuries usually associated with asphyxiation or strangulation. He also observed abrasions on Shymire’s head.
On cross-examination, Maugans testified that Adams stood quietly by and watched his and his partner’s efforts to treat Shymire. He said that Adams appeared to be in shock or stunned. His dispatch computer indicated Adams had been frantic when she called 911.
The State’s second witness, Sherri Rene Brown, was Maugans’ partner. She testified that her efforts to gather information from Adams at the scene were futile. She got no responses to any of her questions.
The State’s third witness, Josh Mullen of the Wichita Fire Department, testified that he also responded to Adams’ 911 call. He observed Shymire on the couch, observed her severe bums, removed mucus from her nose and mouth, and determined that she had a low level of consciousness.
The State’s next witness, Wichita police officer Ian Wolfe, became involved in the case when he made contact with Adams shortly after she arrived at the hospital. Adams confirmed that she had been home alone with her two children and was able to respond to his questions logically and coherently. According to Wolfe, Adams said that she had not wanted to leave Shymire alone in the bathtub, that Shymire had had a seizure, and that Adams then moved Shymire to the couch and noticed Shymire’s slrin was falling off her lower legs. Wolfe testified that Adams told him Shy-mire had been seated in the bathtub. Wolfe also testified that Adams expressed a lack of understanding of a doctor’s comments about bums on Shymire’s legs, explaining that the injuries on her legs were the result of sensitive skin or some kind of skin disorder.
Wichita police officer Naomi Arnold was the State’s next witness. She was responsible for keeping Adams’ apartment clear for investigation, and she walked through the apartment and went into the bathroom. When she opened the bathroom door, she said, the room felt like a sauna; she put her finger in the tub and felt hot water in it.
Kent Bauman, another Wichita police officer with the Exploited and Missing Children Unit, testified next. He too went to Adams’ apartment on May 16, 2007. He stated that he did not notice any bath towels, lotions, or baby soaps set out in the bathroom when he entered it, nor did he notice any standing water on the bathroom floor. He said that he had arrived about 8 p.m., and there was no water in the bathtub at that time. He ran each of the bathtub faucets for 30 seconds to 60 seconds and measured the temperature of the water at 138 degrees.
The State’s next witness, Frank Johnson, was the on-site apartment manager of the complex in which Adams lived. Johnson testified that he observed Robert Turner, Adams’ common-law husband and the children’s father, leave the complex on his bicycle at approximately 12:30 p.m. on May 16, 2007. The parties stipulated that Turner clocked into his job at 12:49 p.m. and clocked out at 9:42 p.m. on that day. At about 6 p.m. on May 16, 2007, Johnson testified, he received numerous calls from Adams, instructing him not to allow police to enter her apartment.
Jonathan Dort, Chief of Surgery at St. Francis Hospital, testified next. Dort was part of the emergency room trauma team that treated Shymire on her arrival at the hospital. Dort observed that Shymire was poorly responsive, somnolent, and not alert. She was not scared or crying like a normal child with her bum injuries would be. He observed no signs indicating that she had suffered a seizure. A CAT scan showed small hemorrhages to Shymire’s brain. It also showed fluids and stomach contents in her chest and in her lungs, which was evidence of aspiration. Dort observed bruises on Shymire’s abdomen and testified that they were not consistent with an effort to resuscitate her. Dort said that, while he treated Shy-mire in the ER, he suspected that the injuries were not accidental, because the combination of bums, head trauma, and marks on the neck could not be attributed to a single cause or mechanism. Defense counsel did not cross-examine Dort.
Pediatrician Katherine Melhom, M.D., testified next for the State. She said that she specialized in child abuse evaluations. She visited Shymire in the hospital the day after she arrived, read Shy-mire’s medical history, and concluded that Shymire did not have a seizure disorder. Melhom also concluded that Shymire’s injuries could not have been caused by a short seizure and that there was nothing to indicate any preexisting health issue that could have caused her injuries. Melhorn described the injuries to Shymire’s lower legs and feet as inflicted immersion bums. Shymire also had bmises on her legs and torso resulting from inflicted blunt force trauma and three bruises behind her right ear resulting from blunt force trauma. She had a bruise and abrasion on her forehead, which Melhom was less certain about; but she testified they too had probably been caused by blunt force trauma. Shymire’s internal brain damage resulted from a closed head injury caused by blunt force trauma. In Melhom’s opinion, the bums on Shymire’s legs may have contributed to Shymire’s death, but the ultimate cause of death was marked swelling to brain tissue. On cross-examination, Melhom conceded that her conclusions did not mle out the occurrence of a seizure on May 16, 2007. On redirect, she said she could not conceive of a sensible, single mechanism for all of Shy-mire’s injuries, but Shymire could have had a seizure as a result of the brain injury.
Doctor William Waswick, a surgeon and specialist in trauma and bums, testified next. He treated Shymire on the day she arrived at the hospital. Waswick stated that Shymire had second- and third-degree bums on her legs and feet. A small area would have required skin grafting to heal, but most of the bums would have healed without grafting. Waswick also testified that bums such as those to Shymire’s legs would be “exquisitely painful,” and that the bums alone would not have caused Shymire’s observed low-consciousness state. He said that the bums were consistent with forced immersion injuries, not accidental bums, because there were no splash bums to other parts of Shymire’s body. On cross-examination, Waswick testified that 3 seconds to 5 seconds underwater would have been enough time to have caused Shymire’s bums. In addition, minor bums on Shymire’s chest and cheek were consistent with the toddler climbing or being pulled out of the tub.
Jaime Oeberst, chief medical examiner for the Wichita Police Department and county coroner, performed an autopsy on Shy-mire’s body the day after her heart stopped and was die next witness during the State’s case in chief. Oeberst had ultimately concluded that Shymire’s cause of death was complications from blunt force trauma to the head and abdomen and from the bums. He had ruled that the manner of death was homicide. On cross-examination, Oeberst stated that the petechial hemorrhages in Shy-mire’s eyes and chest may have resulted from periods of distressed breathing. On redirect examination, Oeberst testified that blunt force trauma to the head would have resulted in a visible change of the state of the child’s consciousness.
Clay Germany, a Wichita police detective with the Exploited and Missing Children Unit, was the State’s next witness. He testified that he interviewed Adams at the hospital on May 16, 2007. He also interviewed her at the EMCU offices. The State played two DVDs of the police interviews.
William Alexander Riddle, a detective with the Wichita Police Department’s Exploited and Missing Children Unit, was the State’s last witness. He testified that he learned from doctors at St. Francis that Shymire was suffering from bleeding in the brain. During interviews with Adams, Riddle said he and other detectives asked Adams to explain how Shymire’s head injury occurred. He said that Adams denied ever hitting Shymire and said that a wall mirror had fallen on Shymire’s head earlier in the week and may have caused the head injury.
Defense counsel did not make an opening statement.
Adams testified that she was 19 years old and had moved to Wichita from North Carolina with Turner and their two children in March 2007. She described her life in Wichita as a stay-at-home mother, struggling with finances as her husband sought work. Turner worked evenings, and she had full responsibility for caring for the children at all times of the day. Adams said, “I was tired all the time. Stressed. I was just exhausted.” She also acknowledged that she was being physically, emotionally, and mentally abused by her husband.
On May 16, 2007, Adams testified, her husband went to work around noon and she was alone with her children for the afternoon and evening. Righteous, the baby, was abnormally fussy. Adams was operating on 3 hours of sleep from the previous night and some short naps. She ingested Ecstasy, marijuana, Lortabs, and cocaine to “get my mind off of what was going on around me and what I was going through.” She followed her normal routine with the children, feeding them dinner, then giving them each a bath.
Adams said that she gave Righteous a bath first, then moved him to the crib in the living room. She started a bath for Shymire, failing to bring anything but a towel into the bathroom with her because she was distracted by Righteous’ crying. She tested the water and thought it was fine, put Shymire into the tub, and sat in the bathroom with her until she heard Righteous screaming in the living room. She went to the living room to comfort Righteous and heard a thud from the bathroom. Shymire then walked out into the living room. Adams testified that she put Righteous back down into the crib, picked up Shymire, carried her to the bathroom, and put her back into the bathtub in a. standing position. The water was still running, and Shymire started screaming. Adams said she observed Shymire “began to wander to the ceiling, and I asked her, Shymire, what’s up there .... And then she began to jerk and then she just flew back.” Adams testified that she thought she had caught Shy-mire but it was possible she nevertheless hit her head in the bathtub. She acknowledged she heard a thud and immediately picked Shymire up.
When Adams picked Shymire up, she testified, she noticed the water was much hotter than it was when she first put Shymire in the tub. She also testified that she noticed Shymire’s feet were scalded and that she was not responding or making any sounds. Adams said she took Shymire to the living room and put her on the couch, and she observed mucus coming from Shymire’s mouth and nose. Adams said she tried to perform CPR, but she acknowledged that she had no training in how to do so. She described her efforts at CPR as thrusts to Shymire’s abdomen. Adams then called 911.
Adams said she was in a state of shock when emergency personnel arrived. She testified that she did not tell the detectives about the bums on Shymire’s legs because she had not seen them at the time. She also said that she was worried throughout the police interviews that she might be deemed unfit and have her children taken from her. She said this was the reason she failed to tell the 911 dispatcher and detectives that she left Shymire alone in the tub and failed to mention her drug use. Adams believed Shymire was capable of manipulating the tub water faucets, but she had never observed her turn them before.
On cross-examination, Adams said that the reason investigators found no drugs at her apartment was that she had used them all and then cleaned. She also testified that she did not recall shutting the bathroom door or pulling the stopper on the bathtub. She did recall telling detectives that she was emotionally well and would not have been caring for her kids alone if she could not handle them. The prosecutor also asked questions emphasizing discrepancies between the evidence in the police interview DVDs and Adams’ testimony on direct, including her earlier statement that she had lotions and powders with her in the bathroom. The prosecutor also questioned Adams about Righteous’ behavior while the EMS personnel were in the apartment. She had testified on direct that Righteous was veiy fussy and was crying constantly. On cross-examination, Defendant testified that he was quiet when the paramedics were there, although he had been veiy noisy all day. The prosecutor also read from the transcript of the police interview in which Adams had said that Shymire splashed water when she began to fall backwards and that there may have been water on the bathroom floor. Adams acknowledged that Shymire had no bums except on her lower legs and feet. She testified that she did not strike Shymire in the head or thigh and that she had no intent to harm Shymire while performing abdomen thrusts.
When instructing the jury, the district judge used the weight and credibility instruction from PIK Crim. 3d 52.09 but added a second paragraph about expert testimony from PIK Civ. 4th 102.50. The expanded instruction read:
“It is for you to determine the weight and credit to be given the testimony of each witness. You have a right to use common knowledge and experience in regard to the matter about which a witness has testified.
“Certain testimony has been given in this case by experts; that is, by persons who are specially qualified by experience or training and possess knowledge on matters not common to mankind in general. The law permits such persons to give their opinions regarding such matters. The testimony of experts is to be considered like any other testimony and is to be tried by the same tests, and should receive the same weight and credit as the jury deems entitled to, when viewed in connection with all the other facts and circumstances, and its weight and value are questions for the jury.”
The court said that the modified instruction told jurors that they were “to consider expert witnesses by the same standard” used for any witness. Defense counsel objected because the instruction was not “standard PIK.” The judge overruled the objection, finding the modified instruction “helpful for the jury.”
Jurors asked two questions during their deliberations. The first jury question was: “Did the Specialist ?_[] say the blow to the back of the head would/could have caused instant inc[a]pacit[at]ion?” A typewritten document in the record on appeal, signed by the district judge and both counsel, reflects the following response by the court:
“The Court reminds the jury that they are the trier of the facts. It is their perception and recollection of testimony that should control their deliberations, not counsel[’]s. The Court will advise the jury that, should they desire it, it is possible to have that portion of the Doctor’s testimony read back to them.
“Counsel agree that the specialist, Dr. Oeberst, testified in essence, that the head trauma would have caused the brain to swell within a very short time but did not provide specific time estimates. She further testified that, once the brain swelling started, it would have caused an immediate and noticeable change of consciousness.”
When the jury had completed its deliberations, but before it was brought into court for the reading of its verdict, the prosecutor stated the following on the record:
“[T]here was a question the jury asked. Counsel considered the questions with the Court. [Defense counsel] was given an opportunity along with his client to speak privately about that. They did before all the parties came back in chambers and agreed to the question response to be given to both questions. The response was reduced to a typewritten form and all parties signed it, and it was answered in that fashion to the jury.
“The question and the answers, I think it may have been a part of the record already, but I just wanted in the record that [defendant] Ms. Adams was allowed plenty of time to confer with counsel prior to the answer being given.”
The district judge then asked defense counsel whether he agreed with the prosecutor s recitation, and defense counsel said “I do.” Nothing in the record on appeal reflects whether Adams was present during any discussion by the court and counsel of the jury questions and responses.
After the guilty verdict but before sentencing, Adams wrote a letter to the district judge. It read in pertinent part:
“I am writing you because I would like to know what I need to do to get a new attorney. I felt that I was not represented properly. There are a lot of facts to my case that were not mentioned w[h]ich I believe would help my case. I refuse to accept the fact that I have been found guilty for something that I did not do. I am aware of the severity of my case. That is why I’m asking you to appoint another attorney to my case.”
The judge construed the letter as a motion for appointment of new counsel and a motion for new trial on the basis of ineffective assistance of trial counsel. He appointed the requested new counsel and conducted an evidentiary hearing on the motion for new trial.
At that hearing, Adams testified that many facts were not mentioned at her trial. She also said that she believed she had inadequate opportunities to discuss her case with her trial counsel. She said she had wanted him to put on evidence of Battered Woman’s Syndrome and had wanted him to subpoena her husband to testify about the abuse and hardship she was suffering at the time of Shymire’s injuries. Adams also said that she had wanted her trial counsel to present medical records of her children showing no history of abuse, but she conceded that she did not give her counsel any contact information for medical providers. Adams also testified that she had wanted her trial counsel to call character witnesses and put on evidence of her successes in high school. She further testified that she was not able to understand what was going on at the time of trial and had felt forced to testify in her own defense. She stated that her counsel did not threaten her but that “[h]e just said that I don’t have a choice.”
Adams also presented documents establishing that Shymire was a child in need of care (CINC) from the time of her injuries until the termination of her fife support. She testified that she had wanted her counsel to present the CINC documents at trial to demonstrate that she was not permitted to make the fife support termination decision ordinarily allocated to a parent. Adams asserted that this should have absolved her of first-degree murder.
Adams also testified on direct that she could have given her counsel photographs that illustrated her loving relationships with her two children and that he should have filed a motion to suppress certain of the statements she had made during police interviews. She also said that she had not wanted to admit using drugs and that she had made this clear to her counsel. She said she did not know whether her trial counsel had filed any proposed jury instructions.
On cross-examination, Adams conceded that she was not alleging that her husband killed Shymire. She also admitted that she had told the jury she had a rocky relationship with Turner. Adams further testified that she had received mental health treatment when she was about 12 years old in North Carolina, but could not recall the diagnosis or form of treatment. Adams also testified that she suffered from a mental disability that made it difficult to remember things; she did not know the name of the malady.
Adams’ trial counsel, Kenneth Newton, also testified at the hearing on the motion for new trial. He said he had worked for the Sedgwick County Public Defender’s Office for about 12 years and had defended five to eight murder cases. He further testified that he had had a pediatrician with expertise in neurology review Shy- mire’s medical records. That doctor concluded that there was a 2-hour time lapse between the occurrence of Shymire’s head injuries and the time Adams called 911. This evidence eliminated Turner as a suspect. The pediatrician also told Newton that he would not testify to any reasonable degree of medical certainty that Shymire’s injuries could have resulted from an accidental slip and fall. Under these circumstances, Newton said, he could not put the doctor on the stand before the jury.
Newton further testified that he did not call Turner to testify because he was difficult to reach, missed appointments to come in to discuss the case, and posed too great a risk that he would invoke his privilege against self-incrimination on the stand because of Adams’ abuse allegations. Newton also considered calling Adams’ mother to testify, but he and Adams decided as trial neared that it would be better not to do so. Newton did not recall that Adams ever mentioned suffering from a mental disability, and he never had the impression that Adams was not competent to stand trial.
Newton also testified that he did not attempt to put photographs of Adams with her children into evidence because controlling case law did not support their admissibility. He did not offer medical records of Shymire’s previous medical treatment because they contained damaging evidence — specifically, documentation that Adams had engaged in inappropriate behavior during an infant Shy-mire’s visit to an emergency room and that Shymire had been malnourished. Newton made a strategy judgment not to sponsor such evidence because it would hurt Adams’ case and portray her as a “neglectful mom,” a characterization she had made clear she wanted to avoid.
Newton further testified that he believed he had spent adequate time discussing the case with Adams. He said he could not be sure whether he submitted proposed jury instructions to the district court. Newton also said that he did not force Adams to testify. She had insisted that she wanted her story to be heard; and he told her that there was no way for that to happen if she did not testify.
The district judge denied the motion for new trial based on ineffective assistance of trial counsel, relying on Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and Chamberlain v. State, 236 Kan. 650, 694 P.2d 468 (1985). Adams was sentenced to life imprisonment with parole eligibility in 20 years.
Handling of Jury Question
Defendant argues that the district judge erred both procedurally and substantively in responding to the jury’s question during deliberations. Procedurally, the judge should not have provided a written response that summarized a portion of a witness’s testimony; rather, he should simply have offered a readback of the testimony. Substantively, Adams argues, the judge’s summary was inaccurate.
The standard of review for a trial court’s response to a jury question during deliberations is abuse of discretion. State v. Hoge, 276 Kan. 801, 815-16, 80 P.3d 52 (2003) (citing State v. Moore, 274 Kan. 639, 643, 55 P.3d 903 [2002]). The State points out, however, that Adams invited this error by acquiescing in the trial court’s handling of the question. If so, the question is not reviewable. See State v. Prouse, 244 Kan. 292, 298-99, 767 P.2d 1308 (1989).
The invited error doctrine has been applied in reviewing a district judge’s compliance with the statutory procedures governing jury questions. State v. Bruce, 255 Kan. 388, 397, 874 P.2d 1165 (1994); State v. Cramer, 17 Kan. App. 2d 623, 632-33, 841 P.2d 1111 (1992). K.S.A. 22-3420(3) provides:
“After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant, unless he voluntarily absents himself, and his counsel and after notice to the prosecuting attorney.”
The court has construed this provision to require the defendant’s presence for any discussions about a jury’s questions and “[w]here the record does not affirmatively reflect the presence of the defendant, this court will presume that the defendant’s constitutional right to be present was violated and that K.S.A. 22-3420(3) was not followed.” State v. Betts, 272 Kan. 369, 391, 33 P.3d 575 (2003) (citing State v. Bell, 266 Kan. 896, 920, 975 P.2d 239 [1999]). This Betts court has further noted that invited error doctrine would not apply to an allegation that defendant’s right to be present during jury question discussions was violated, because this is a right personal to the defendant. Betts, 272 Kan. at 392; see State v. Bolton, 274 Kan. 1, 5, 49 P.3d 468 (2002). But harmless error analysis does apply. 272 Kan. at 391-92.
In this case, Adams does not argue that her right to be present was violated. This is wise because, although the record is less than crystal clear, it is not silent. The prosecutor’s comments on the record show that she participated at least in a discussion of the jury’s question and the response with her counsel. This makes her situation analogous to that of the defendants in State v. Bruce and State v. Cramer.
In Bruce, this court applied the invited error doctrine to the defendant’s objection on appeal to the court’s response to a jury question. 255 Kan. at 397. The record indicated that the defense counsel agreed to the response that the court, with input from the prosecution and defense, formulated in open court. Because the defendant participated and, in fact, joined in the request for specific language, defendant could not argue for error before this court. Bruce, 255 Kan. at 397. Similarly, in State v. Cramer the Kansas Court of Appeals applied the invited error doctrine to a defendant’s argument that the district court improperly responded to a jury’s question. 17 Kan. App. 2d at 631-32. Defense counsel stated on the record that he had no problem with setting out the standard suggested by the prosecutor. It was just that standard that both parties agreed to that the court used to answer the question. Because of the defendant’s on-the-record agreement to the answer, he could not argue the error on appeal. 17 Kan. App. 2d at 632-33 (citing State v. Salton, 238 Kan. 835, 837, 715 P.2d 412 [1986]; State v. Falke, 237 Kan. 668, 682, 703 P.2d 1362 [1985]; State v. Reynolds, 230 Kan. 532, 535-36, 639 P.2d 461 [1982]).
It would be better practice, in future cases, for the district judge to take special care to deal with jury questions only in open court and to ensure a recording of the presence of the defendants as well as the prosecutor and defense counsel. In addition, a judge who summarizes testimony rather than merely offer a readback, plays with fire. See Betts, 272 Kan. at 393 (error to summarize but harmless). However, on the record in this case, we are satisfied that Adams invited any error that may have occurred in the district judge’s handling of the jury’s question. We therefore decline to review her procedural and substantive complaints.
Witness Credibility Instruction
Adams next contests the propriety of the district judge’s instruction on the credibility of witnesses, which went beyond the wording of PIK Crim. 3d 52.09. The district judge declined to heed the Advisory Committee’s recommendation in the comment to PIK Crim. 3d 52.14, which says no separate instruction about expert witnesses should be given. As set forth above, the judge added language regarding experts borrowed from PIK Civ. 4th 102.50. Adams’ counsel objected to this instruction at trial on the ground that it deviated from the standard pattern instruction for Kansas. Although this is true, such deviation is not automatically fatal. Use of PIK instructions is encouraged but not mandatory. If the particular facts of a case require modification of a pattern instruction, the court should not hesitate to change it. See State v. Gallegos, 286 Kan. 869, 190 P.3d 226 (2008) (citing State v. Mitchell, 269 Kan. 349, Syl. ¶ 4, 7 P.3d 1135 [2000]).
This court has acknowledged, however, a trend away from instructions that focus on the credibility of certain witnesses. State v. Willis, 240 Kan. 580, 587, 731 P.2d 287 (1987). The Advisory Committee Notes on Use also demonstrate this trend. See PIK Crim. 2d 52.10 (defendant as witness); PIK Crim. 2d 52.11 (number of witnesses); PIK Crim. 2d 52.14 (expert witness); PIK Crim. 2d 52.15 (impeachment). This goes to the essence of Adams’ argument on appeal; she asserts that the district judge’s instruction put undue emphasis on the four experts’ trial testimony.
We acknowledge that the notes to the PIK Criminal instruction and the PIK Civil instruction used here counsel against inclusion of a supplemental expert witness instruction. PIK Crim. 3d 52.14 Comment (“The Committee believes that an expert should be considered as any other witness as set forth in PIK 3d 52.09, [Crim.] Credibility of Witnesses.”); PIK Civ. 3d 102.50 Notes on Use (“While this instruction may be requested, the Committee discourages its use.”). But it appears in this case that, if anything, the hybrid instruction was intended to de-emphasize the weight and credit of the expert witnesses’ testimony. Its plain language discouraged jurors from being overly impressed with the expertise and official positions of those testifying during the State’s case-in-chief. In a case where, as here, the nonexpert defendant is her only witness, as a matter of common sense, the hybrid does no harm and may actually help.
Moreover, our legal standard for assessing jury instructions requires that we view them as a whole and determine whether they accurately state the law so the jury could not reasonably have been misled by them. See Gallegos, 286 Kan. at 877 (citing State v. Wilkerson, 278 Kan. 147, 158, 91 P.3d 1181 [2004]). On this standard, Adams’ claim fails.
The instruction accurately stated the law as it stands in Kansas. The jury should weigh expert witness testimony in the same manner it weighs all testimony. See PIK Civ. 3d 102.50, Notes on Use (“The essence of the instruction is nothing more than a statement justifying the decision of the trial judge to allow a supposed expert to testify more broadly than an ordinary witness is allowed to testify.”). The State laid a proper foundation for all of its expert medical witnesses, making the jury well aware of their qualifications to give opinions on medical issues and cause of death.
In addition, Adams’ jury would not reasonably have been misled by the instruction. Had the first paragraph of the hybrid stood alone, the jury still would have been instructed as to how to assess credibility of all witnesses, regardless of expertise. The effect of the second paragraph on experts was merely cautionaiy. Again, it guarded against a likely misimpression about the influence of experts. The district judge was justified in adding the second paragraph because it was helpful to the jury.
In sum, although the district judge deviated from the standard jury instructions on witness credibility, doing so was not error in this case. Any practical effect would have worked to Adams’ benefit, and the instructions as given were fair and accurate statements of the law that would not reasonably have misled the jury.
Motion for New Trial Based on Ineffective Assistance
Adams’ last argument on this appeal is that the district judge erred in denying her motion for new trial based on ineffective assistance of trial counsel. A claim alleging ineffective assistance of counsel presents mixed questions of law and fact requiring de novo review. Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009). When a district judge has held a full evidentiary hearing on the issue, this court determines whether the district judge’s factual findings are supported by substantial competent evidence and whether those findings are sufficient to support the trial court’s conclusions of law. See Bellamy v. State, 285 Kan. 346, 354-55, 172 P.3d 10 (2007).
To establish reversible error, Adams must meet the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.2d 674 (1984); see also Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985) (adopting the Strickland holding). The test requires a defendant to show: (1) counsel committed serious errors that undermined the Sixth Amendment’s guarantee to effective assistance, and (2) counsel’s deficient performance prejudiced the defendant. 466 U.S. at 689-96; Harris, 288 Kan. at 416.
The first prong of the Strickland test requires a finding that trial counsel’s representation fell below an objective standard of reasonableness. Chamberlain, 236 Kan. at 656-57. The sphere of permissible, reasonable professional conduct is broad, and courts are highly deferential in their assessment of attorney performance. There is a strong presumption that counsel’s representation fell within the wide range of professional conduct. Harris, 288 Kan. at 416. “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.” State v. Gleason, 277 Kan. 624, 644, 88 P.3d 218 (2004) (citing Strickland, 466 U.S. at 690-91.) The burden is on a defendant to demonstrate that the alleged deficiencies were not the result of strategy. Gleason, 277 Kan. at 644 (citing Ferguson v. State, 276 Kan. 428, 446, 78 P.3d 40 [2003]).
The second prong of the Strickland test requires a defendant to show there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Chamberlain, 236 Kan. at 656-57.
Adams cannot meet either prong of the Strickland test.
At the evidentiary hearing on Adams’ motion for new trial, both she and her trial counsel testified about the alleged defects in his representation. Their testimony demonstrated that Newton’s performance was well within the bounds of competent, professional representation. Indeed, his concession to several of the additional demands Adams placed on him would have been detrimental to her interests. In other words, he exercised exactly the judgment counsel is meant to exercise, including judgment designed to save the client from himself of herself. Under the circumstances presented here, the district judge’s findings on Strickland’s first-prong were amply supported by substantial competent evidence and those findings were sufficient to support the judge’s conclusions of law.
The situation is likewise on the second prong of Strickland. Shy-mire’s injuries were catastrophic. The State’s case against her mother was powerful. Even if we perceived weakness in Newton’s performance, which we do not, there was no prejudice flowing from it. There was virtually no chance the jury could have concluded other than it did.
In view of all of the foregoing discussion, Adams’ claims of error on this appeal are rejected, and her conviction of first-degree felony murder is hereby affirmed.
Davis, C.J., not participating.
Philip C. Vieux, District Judge, assigned. | [
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The opinion of the court was delivered by
Yalenxinb, J.:
At common law the husband and wife were one, and all contracts between them were void; and this is the rule that the plaintiff in error wishes to have enforced in this case. Our statues have greatly changed and modified the rules of the common law with respect to the rights of married women. Under our statutes a wife may hold property separate from her husband, and may bargain, sell, convey, contract, sue and be sued, and carry on business in the same manner that a married man may. (Gen. Stat., 562.) These statutes probably do not authorize husbands and wives to buy from, sell to, and trade, traffic, and contract with, each other, to the same extent as though they were each unmarried; but they authorize the wife to buy from, sell to, and trade, traffic, and contract with every other person with reference to her separate property to the same extent that a married man may with his property. We think it will be conceded as a general rule of both law and equity, that a wife may, through the intervention of a trustee or third person, buy from her husband, or sell -to him, or contract with him, to the same extent that ^ may fronij sell to, or contract with, any other person. For instance, the husband might have sold the horse in controversy to some third person for the benefit of his wife; and if the sale was bona fide, \so\h. law and equity would uphold the sale. And we further suppose it will be conceded as a general rule of equity, that whenever a contract would be valid and binding at law, if made through the intervention of a trustee, or third, person, that it will be valid and binding in equity if made directly between the husband and wife. Such at least has been decided by the courts: Tennison v. Tennison, 46 Mo., 77; Livingston v. Livingston, 2 Johns. Ch., 537; Putnam v. Bicknell, 18 Wis., 333; Baron v. Baron, 24 Vt., 375; See also Garlick v. Strong, 3 Paige Ch., 440; Wellingsford v. Allen, 10 Peters, 583; Pinney v. Fellows, 15 Vt., 525; Huler v. Huler, 10 Ohio, 371; Wood v. Warden, 20 id., 518; Logan v. Hall, 19 Iowa, 491; Sexton v. Wheaton, 8 Wheat., 229; Wright v. Wright, 16 Iowa, 496; Jaynes v. Meth. Fpis. Ch., 17 Johns., 548; Cruger v. Douglass, 4 Edw. Ch., 433; Cruger v. Cruger, 5 Barb., 225; Reser v. Reser, 9 Ind., 347; 1 Dev. Eq., 187; 3 Desaus. Eq., 158; 4 Desaus. Eq., 560; Wright, Ohio, 406, 604. These authorities are applicable to this case, although some of them have but little application to the point under which we have cited them.
About the only difference between contracts made between husband and wife concerning their separate property, and those made between other persons is, that contracts made between husband and wife in order to be valid and binding must be equitable, while contracts made between other persons may often be valid and binding though not equitable. In any case if contracts tend to defraud creditors they are void. In the present case it seems from the record that the contract was Iona fide, equitable, and upon a good and sufficient consideration. And there is nothing that tends in the least to show that the contract was made to defraud, or that it did defraud the husband’s creditors. This horse may have been sold to the wife long before any credit was given to the husband; and the party giving the credit to the husband may have known at the time that the horse belonged to the wife. There is nothing in the record that tends to show the reverse; and unless it can be seen from what is brought here that the court below committed an error the judgment will not be reversed.
While under the rules of chancery it may be admitted that husbands and wives could always to a certain extent contract with each other, hold, property separate and distinct from each other, and sue and be sued by each other, (Willard’s Eq. Jur., 634, et seq., and cases there cited,) yet it may be claimed that whenever a wife sets up an equitable claim to property it can be done only in an action in the nature of a .suit in equity. This claim would have great if not controlling force in a State where actions at law and suits in equity are kept separate and distinct; but in a State like this, where all such distinctions, and the forms of all such actions and suits, are abolished, (Gen. Stat., 631, § 10,) such a claim can have but little force. Equity was always the stronger jurisdiction; and whenever a party was the equitable owner of property he could always enforce his equitable title in a suit in equity against the party who held the mere legal title, and he could restrain such party from ever setting up, in a court ^aw or elsewhere, his merely legal title. Now case; whether the right of the wife to said horse was a legal right or an equitable right, we can see no reason why she could not set up her right in an action of replevin. If she was the legal owner of the horse no one would have any doubts of her right to maintain such an action; and if she was the equitable owner, equity being stronger than law, there would seem to be no reason why she could not maintain such an action. In Iowa, where equity and common law jurisdictions are kept separate, still the wife during coverture may maintain an action of replevin against her husband. (Jones v. Jones, 19 Iowa, 236.) It has been decided in Maine that “ A woman, after a divorce a vmeulo, may maintain an action against her former husband on a promissory note given by him to her in 1861, cLwr'wig coverpwre for money borrowed of and belonging to her: Webster v. Webster, 58 Me., 139. And see authorities there cited, p. 142, et seq. The action of replevin in this State is for any owner of personal property, legal or equitable, general or special. During the pendency of the action the defendant has his choice, by giving suitable bond, whether he will retain the property or allow the plaintiff to have it; and at the termination of the action the property is given to the party entitled thereto.
We think from the record in this ease that said Sarah A. Orns was the equitable owner of said horse, and that she could maintain an action of replevin for the recovery of the same.
The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was-an action for injuries sustained by defendant in error while in the employ of the plaintiff in error, through the alleged negligence of a co-employee. At tlie time of tlie injury defendant in error was engaged in coupling cars, and while thus engaged his hand was caught between the bumpers and crushed so that amputation became necessary. He claimed that the injury was caused by the negligence of the engineer in hacking without a signal. In the course of his charge to the jury the learned judge before whom this case was tried, thus instructed them — “ and the defendant undertook that its engineers should be reasonably fit and competent for their positions.” That is to say, such was the obligation the company assumed when it made the contract of employment; a failure to employ such engineers would be a breach of such contract: proving incompetency of the engineer would prove breach of the contract; if the contract was x . broken by the company, and iniury resulted there- ° . x d J J from, the injured party would be entitled to damages therefor. Such would be the legitimate inference from this instruction; such would be the probable reasoning in the minds of the jury. This instruction does not embody a correct statement of the law. The contract is not that the engineers shall be competent, but that the company will make reasonable efforts to secure competent engineers. The company does not bind itself absolutely to have such engineers, but that it will use all ordinary care and diligence to obtain them. The contract of employment is not broken by a failure to have but only by a failure to use reasonable efforts to obtain them. The company does not guarantee to one employee competency of all the others. In Tarrant v. Webb, 18 C. B., 797, (37 Eng. L. and Eq., 281,) Creswell, J., says: “In a case of this kind the negligence which causes the wrong is that of the servant; and not that of the master; and the question thus arises whether there was any negligence in the master in not employing competent servants.” And in the same case Jervis, C. J., uses this language: “Negligence may consist of more than one matter. But it cannot exist if the master does his best to employ competent persons. He cannot warrant the competency of his servants.” This rule is well settled by authority both in England and this country: Elizabeth Clark, or Reid, v. Tie Bartonshill Coal Co., 3 McQueen, 206, cited in Hay’s Digest, p. 221; Frazier v. Penn. Rly. Co., 38 Penn. St., 104; Farwell v. Borton & Morse. R. R. Corp., 4 Met., 49; C. & I. C. R. R. Co. v. Arnold, 31 Ind., 182; 5 Ohio St., 560; 18 Wis., 700; 1 Redfield on Rlys., 531, and cases there cited; Dow v. Kansas Pacific Rly., Co., decided the present term, (ante, p. 642.)
But in another part of his charge to the jury the court below laid down the rule correctly, as follows:
“ If the evidence shows that Allison and the plaintiff were both in the service of the defendant, and both engaged in the common service of making up a train of cars for the company, although the particular duties of Allison pertained to the managing of the motive power of the train, and the plaintiff’s to the coupling the cars, the defendant is not liable for an injury resulting from the negligence of Allison, unless it appears that Allison was not reasonably careful or skillful as an engineer, and that the company was • aware of his unfitness or did not use reasonable diligence in employing him in that capacity.”
Is not the error in the one instruction corrected by the giving of this other? The whole charge must be taken together, and oftentimes an incorrect statement of the law in one portion is so far explained, limited, or qualified by some other, that it is evident the jury cannot have been misled. But where error of law occurs in the charge it should be perfectly plain that the jury have not been misled, or a new trial will be granted. There is nothing in the words used which would lead the jury to understand that one instruction is used in limitation or qualification of the other. If the jury perceived the contradiction there was nothing by which they could determine in which the court erred, or which should receive the most consideration. Indeed, the verdict they rendered, as will appear from the next point considered, shows that they followed the erroneous instruction rather than the other. Upon this point we quote the clear language of Judge Thompson upon a kindred question in the case of the Cattavissa R. R. Co. v. Armstrong, 49 Penn. St., 192: “Therewas error in this, unless we can see clearly that it was neutralized by wbat preceded it. How is it possible to ascertain this? Can we suppose it made no impression? The jury heard it; it had meaning, and was given to guide them to what principles they were bound to apply the tacts, and it was almost the last words that fell on their ears in closing this part of the instructions. It will not do to hope or conjecture that a false rule will do no evil, because a true one also was given. To a court it would have been harmless; but how was a jury to say which was right and which was wrong?” See also Horne v. The State, 1 Kas., 73.
Defendant in error claimed that the injury was caused by the negligence of a co-employee of the company. This co-employee did not occupy a higher grade of employment, but was subject to his orders, and disregarding them wrought the injury. It was alleged in the petition that this fellow-servant was utterly incompetent and unfit for Ms work, that of engineer; that the company was aware of this fact, and that it had employed him “without reasonable grounds to believe he was competent for sirch service, and without having exercised reasonable diligence to ascertain his fitness to act in that capacity.” Two facts are alleged, each essential to recovery: first, incompetency of the engineer, and second, a continuance in employment by the company with knowledge of his unfitness; or, what is equivalent to this in fixing the liability, an employment without reasonable inquiry into his fitness. In regard to the first, the evidence of incompetency was the transaction itself which caused the injury, the testimony of Nelson that Allison the engineer was not a regular engineer, and the testimony of Granger as to what a competent and skillful engineer would and would not do. This testimony, though it may not carry the clearest conviction of the incompetency of Allison, is yet evidence from which a jury might legitimately find it. Yet it does not disclose such gross and patent incompetency as would justify the inference that his employer must have known it. We can conceive of cases where the proof of incompetency might be so overwhelming, and extending over such a length of time, that it could reasonably be inferred no employer could be ignorant of its existence. But this is no such case. There may be proof enough to sustain a finding of incompetency, but nothing which could be held to impart notice. Turning now to the second point noticed, that is, continuance of employment with knowledge of unfitness, or employment without reasonable inquiry as to fitness, we are constrained to say after careful examination of the record, that there is no testimony tending to establish either, sufficient to support a finding. Either one of these is sufficient. One is equivalent to the other. One or the other must be shown, or the company is not liable. The rule to be followed where there is a total failure of evidence on any point essential to a recovery was laid down in the case of Backus v. Clark, 1 Kas., 303. It was there held that such a failure presented a simple question of law, and necessitated the setting aside of a verdict in the plaintiff’s favor. Applying that rule to this case and we are compelled on this ground to reverse the judgment and order a new trial. It must be remembered that these are independent, substantial facts, facts which must be proved as much as the fact of injury. And the burden of proof on these points as well as the others was with the defendant in error. It is not sufficient to show such a combination of circumstances as renders it possible that one of these alleged facts existed, any more than it would be sufficient to show such a combination of circumstances as rendered it possible that the defendant in error was injured. The question is not what might have been, but what was. The place of the accident was Ellsworth. Allison, the engineer, had been there but a few days. The only direct testimony as to who employed him, and how he came to be at Ellsworth, is that furnished by Granger, a witness for plaintiff in error, and its yard-master and despatcher of trains at that place. This was his testimony on that point:
“ Q.-Did you know this Jack Allison? A.-Yes, sir. Q.-Do you know how he came there? A.-Mr. Boon, the master mechanic at Wyandotte, sent him there. Q.-IJpon what occasion? A-Alr. Walsh sent for a man, and Allison was sent up with a letter to Walsh, and he set him to work on the west end of the road. lie gave him a letter of introduction. (Plaintiff moved to strike out all the witness said about a letter, which motion was by the court sustained.) Q.-Was there any engineer wanted up there? A.-I think so. Q.-You think he came up at the instance of Mr. Boon? A.-Yes, sir. Q.-Who was Mr. Boon? A.-Master mechanic of the whole road. Q.-Do you know his reputation as to skill? A.-I know his reputation is good. I don’t know him personally.”
Now so far as this testimony goes it points to care and diligence. True, it does not amount to very much, being mainly’ important as indicating the line of inquiry. But whatever of bearing it has is on the side of the plaintiff in error. It tends to show that the employment was made by one qualified, one of the chief officers of the road, and one especially charged with the supervision of that kind of service. What knowledge, what information this master-mechanic had, what inquiries he made as to Allison’s competency are undisclosed. We have no right to infer in the absence of testimony that he employed without knowledge or inquiry. We are never justified in imputing negligence or wrong-doing to one without proof. But it may be said the jury were under no obligation to accept the testimony of one of the company’s witnesses and employees — that they might have seen enough in the manner of his testifying to satisfy them of his untruthfulness. Suppose it was evident that he was falsifying, and the jury therefore rightfully rejected all his testimony, what is there then in the record to indicate when, how, or by whom Allison was employed? The defendant in error on his direct examination testified as follows:
“ Q.-How long had you known Jack Allison who was in charge of the engine? A.-I saw him about four days before the day I was injured. I never knew he was an engineer till that day. Q.-What had he been doing? A.-Loafing around the depot, and around there. Q.-Had he been doing anything for the company? A. — Nothing that I ever saw, except to go out one night to fire. Q.-Do you know how that man Allison came to be acting as engineer on that day? A.-I do not. Q.-Had you ever seen Jack Allison acting as engineer before that day? A.-No, sir. Q.-Do you know whether he had acted on the road as engineer before? A.-Not to my knowledge. Q. — Do you know how he came to be acting as engineer on that day? A.-I don’t know; I had no charge of the engineers. Q.-Wlio had? A.-George Walsh.' Q.-Whowashe? A.-What is called a master mechanic. Q.-Where was he that day ? A.-I suppose at his office. Q.-Where was that? A.-At the Round House, above Ellsworth. Q.-What had Allison been doing, to your knowledge, before that day? A.-Nothing. Only one time 1 saw him on an engine firing, going to Hays. Q.-Do you know what he did after that date? A.-No, sir.”
His cross-examination upon this, though a little longer, elicited no new fact. Now in this testimony the witness plainly denies any knowledge in regard to the point we are considering. He does not know how Allison came to be employed, by whom he was employed, what information such employer had, or what inquiries he made concerning Allison’s qualifications. It would seem from this testimony to have been the opinion of the witness that George Walsh, the master mechanic at the station, was the party chargeable with the employment of Allison; yet this is merely an inference as to his opinion, and not his testimony as to a fact. Now the testimony of these two witnesses is all that bears upon the circumstances of Allison’s employment. The one witness denies knowledge; the other’s testimony points to diligence. What then can support a finding of negligence? Nor does the case stand any better in reference to the allegation of a continuance of the employment after knowledge of Allison’s unfitness. The plaintiff testified that Allison had been at Ellsworth only three or four days before the injury — that he had run an engine only once or twice during that time. No one of the officers of the road is shown to have been present while he was so engaged. True, the witness Nelson, in answer to this question, “What officers of said defendant passed through and stopped at that yard at Ellsworth during the time said Jack Allison was in the employ of said railroad company, or while you were there,” testified— “The superintendent,road-master, and supervisor of said road. The superintendent was there very often, and road-master there very often also.” But as Allison was in the employ of the company for a time subsequent to tbe injury, this may have reference entirely to such subsequent time. Assume that it did not, but referred partly to the time prior to the accident, and still it is far from bringing home knowledge of Allison’s incompetency to the officers of the company. It is possible that Allison’s incompetency was manifested before the time of the accident. It is possible that some one of the officers of the company was present and noticed it. But upon which trip, and which officer, are questions which find no answer in the testimony. The time of service was too short to raise any presumption of knowledge of his incompeteney. It must be shown that some officer having responsibility for his continuance in service was aware of his unfitness for it. Upon this the record is absolutely silent.
The injury in this case was the loss of a hand. The damages assessed were ten thousand dollars. No fixed rule can be laid down for estimating the damages to be awarded for physical injuries. Great latitude is of necessity allowed to a jury, and within certain limits their assessment, whether inadequate or excessive, cannot be disturbed. Still, the action of the jury is not altogether beyond control. There are some rtlles and principles to guide in the assessment, a disregard of which will avoid the verdict. Outside of those cases in which the question of exemplary or punitive damages is involved, the basis of the assessment is compensation. No verdict is right which more than compensates; none which fails', to compensate. But how shall it be ascertained what- is--compensation? One method of determining it, which-wé often hear when appeals are made- to a jury for large 'damages, is this: “ What would you take and suffer the same pain and loss? ” In other words, the price at •which one would-voluntarily undergo physical pain and suffering and loss of limb, is claimed to be a fair test of the compensation which should be awarded to another who has thus suffered. Or, more shortly, the sum you would have to give to buy is the sum you should pay. This is radically, intrinsically wrong. It seeks to parallel such injuries with injuries to property, and in making the parallel ignores the test of values. Not what you can buy an article for, but what you can sell it for is the test of its market value. Here there can be no sale; for we can find no purchaser. Every one realizes that it is time, as said, that “ life and wealth are not commensurate, much less convertible values.” Everyone feels that no man of good judgment would voluntarily exchange his limbs for any sum. Whatever may be their pecuniary value to him in the matter of obtaining a livelihood, they are so necessary to the comfort and pleasure of living that he would not assent to give them up upon any conditions. And no man would purchase that which would be of no value to him when obtained, but a great and irreparable loss to the seller. Again, a corporation doing an injury should not be mulcted in any greater sum than an individual doing like injury. The former has the same rights, and is subject to the same obligations in this respect, as the latter. Yet no one can be blind to the fact that jurors too often ignore this rule. Suits for damages against colorations average larger verdicts than like suits against individuals. Because the party paying is an impersonal, intangible existence, a soulless organization, destitute of feeling, it does not seem so harsh to mulct it in heavy damages. More than that, the relations of a corporation to the public frequently develop an imitation and dislike which unconsciously finds expression in enormous verdicts. That this feeling arises from the conduct of the agents and officers of the corporation may be conceded; yet it furnishes no justification for increasing an award above the compensation the injury demands— for not the agents and officers, but the stockholders, suffer the loss. In fixing the amount which may be recovered by the personal representatives, in case of death from the injury, the legislature furnished some guide for determining the sum to be awarded when death does not ensue. The largest sum which can be recovered in case of death is ten thousand dollars — just the amount of this verdict.' In other words, the jury have given to this plaintiff as much for the loss of his hand as they could have given to his representatives and those dependent on him if he had been killed. We do not wish to be understood as holding that in no case of physical injury, where the party survives, may a verdict properly exceed the amount which could be awarded in case of death. There may be cases where the injury is so overwhelming, so prostrating, that the party not only ceases to be of any assistance to his family, but becomes a burden upon them; or cases where the party is confined to his bed for a great length of time, and put to large expenses for surgical skill and nursing, with the certainty of being permanently disabled from any employment, which may justify verdicts in excess of ten thousand dollars. But in a case like the one before us, where the sole permanent injury was the loss of a hand, which was amputated just above the wrist, without any protracted sickness or lengthened confinement, an award of ten thousand dollars shocks the sense of right. Is his hand worth as much as his life? Again, some light may be thrown by comparing the wages a party could earn before and after the injury. If he could earn fifty dollars a month before, and twenty-five after, the award for a sum whose interest was fifty dollars per month would seem to make the injury a pecuniary blessing. The defendant in error was earning pior to the injury sixty-seven dollars a month, or about eight hundred dollars a year. The sum awarded, at the ordinary rate of interest in Kansas, would give him twelve hundred dollars a year. An award of an annuity of twelve hundred dollars for the loss of a hand, to one who prior to the loss was earning but eight hundred, certainly presents a case where the verdict more than compensates. It is not the purpose of the law to encourage idleness, to take away the necessity for, or incentive to toil. The obligation to labor should remain as strong after as before tlie injury. It is compensation when the diminished value of such labor is made good. Still again, the annuities granted by the government by way of pension to those who suffer injuries in its service furnish some criterion. He who loses a limb in defense of his country has as much claim upon that country for compensation as one man can have upon another for injuries received through the latter’s negligence. Of course, these pensions cannot be so graded as to meet tbe necessities of every individual case. They respond only to the average. But such response is the judgment of the most thoughtful minds, based upon the most complete information. It averages values in different parts of the nation as well as classes of injuries, so that it is not an absolute guide in any given locality. But .being an average it helps to determine what is compensation. The elements which lift any given case above or reduce it below such average can generally be ascertained without difficulty. At least an average furnishes a starting point. In whatever light we look upon this verdict it seems to us to be largely in excess of a fair compensation for the injury. The judgment of the court below will be reversed, and the case remanded for further proceedings.
Yalbntine, J., concurring. | [
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The opinion of the court was delivered by
Kingman, C. J.:
The plaintiffs in error brought this action to recover a quarter-section of land in Shawnee county. The plaintiffs in error and defendant both claim as grantees under one Manfred Stafford. The plaintiffs in error claim by deed dated August 16th, 1859, recorded the same day. The defendant in error claims by deed dated July 4,1859, but not recorded until Aug. 20th, 1859.
The defendant’s testimony tended to show that he was in possession under his unrecorded deed at the time of the purchase of plaintiffs, and that the possession was such as to be constructive notice to the plaintiffs of his having title thereto. The plaintiffs’ testimony on this point tended to show that defendant lived on said land before he bought it, and that there was no such change in the possession and occupancy of the land after making the deed by Stafford to him and before the making the deed to plaintiffs as would put purchasers upon inquiry. There was also testimony tending to show actual notice to Greer and to the agent of Moore; and on the other hand there was an absolute denial of such notice by the plaintiffs in their testimony. The question on the trial on which the decision hinged was, whether the plaintiffs or either of them had such notice of the prior unrecorded deed to defendant as to prevent them from holding the land in controversy in good faith. On the trial the defendant offered in evidence the deposition of D. S. McIntosh. Each of the plaintiffs objected to reading that portion of the deposition that purported to give a conversation between the witness and Greer, and a separate conversation between witness and Jacob Safford, (Moore’s agent.) This testimony tended to prove that Greer had actual knowledge of the deed from Stafford to defendant when the plaintiffs bought the land, and that Safford had a like knowledge. It was elsewhere proved by the testimony of the plaintiff Mrs. Moore that Safford had acted as her agent in the purchase of the land, and continued to be her agent in relation to the land up to the time of the trial. The admission of this testimony is the first error alleged. “ The general doctrine is that the declarations of a party to the record, or of one identified in interest with him, are, as agaánst such pa/rty, admissible in evidence.” 1 Greenl. on Ev., § 171. That part of the deposition showing a knowledge by Greer of the prior deed of defendant when he purchased was clearly admissible as to him under the rule just quoted. The testimony as to the declarations of Safford made after the .purchase of the land stands on a different footing. There can be no doubt that notice to Safford of the outstanding title, while he was acting as the agent of Mrs. Moore in purchasing the land, was notice to Mrs. Moore of that fact. It is the duty of the agent to apprise his principal of all the facts necessary to be known, and it is presumed that that duty is always performed, and therefore notice to the agent is notice to the principal: Hiem v. Mill, 13 Vesey, 113, and note 2 to same case, p. 123; Jackson v. Sharp, 9 Johns., 161; Astor v. Wells, 4 Wheaton, 486; Fulton Bank v. N. Y. & Sharon Canal Co., 4 Paige Ch., 137; Bank of U. S. v. Davis, 2 Hill, 461; Mechanics’ Bank v. Seaton, 1 Peters, 309; 1 Parsons on Con., 64; Story’s Eq., § 408. But while this principle is true, the fact of notice must be proved, as any other fact, by competent evidence. When these admissions of the agent purport to have been made the land had already been purchased. Safford was no longer the agent for the purchase of the land. He was agent for the care of it, and the plaintiff Moore’s interest in it. Was his admission, made after the transaction was closed, evidence against his principal? It will be conceded that the admission of a stranger could not be so proved against a party, for such testimony would be only hearsay. There is a class of cases in which the admissions or declarations of the agent may be given in evidence against his principal, but it is when such declaration is made within the scope of the agent’s authority, and then it is in the nature of original evidence and not hearsay — the representations or statement of the agent in such cases being the ultimate fact to be proved, and not an admission of some other fact: 1 Phil, on Ev., 381. The limitation of the rule as to the admission of the declarations of agents is thus stated by Mr. Greenleaf in his treatise on Evidence, Vol. 1, § 113: “ The party’s own admission, whenever made, may be given in evidence against him; but the admission or declaration of his agent binds him only when it is made during the continuance of the agency in regard to a transaction depending, et dvm fervet opus. It is because it is a verbal act, and part of the res gestae, that it is admissible at all; and therefore it is not necessary to call the agent himself to prove it; but wherever what he did is admissible in evidence, there it is competent to prove what he said about the act while he was doing it; and it follows that when his right to act in the particular matter in question has ceased, the principal can no longer be affected by his declarations, they being mere hearsay.” The authorities on this point are collected in Paley’s Agency, 267, et seq., and notes. Applying the rule as laid down, the declarations of the agent, made as they were after the purchase had been concluded, and the transaction no longer depending or in agitation, could not be received as against the principal; therefore that part of the deposition should have been suppressed. The deposition as to Greer, as we have seen, was properly admitted as to Greer; it was legal evidence as to him, as tending to show knowledge on his part of the prior deed of defendant. But it was not evidence as against his co-plaintiff Moore. She had no such privity of estate with Greer as to make an attempted fraud on his part in the purchase of the land operate against her, as we shall presently see.
The next point raised is on the instructions. The court among others gave the following: “Notice to the agent of a party is notice to his principal; and notice to one of two joint parties is notice to both.” The instructions contain two propositions. The first one we have already seen is correct. The last one although it may in some cases where the relation of the parties is such as to justify it, be correct, is not so as applied to this case. The plaintiffs held by a deed to them jointly, which made them tenants in common. Comp. Laws, 354, § 8, in force when these deeds were made. Each purchased for himself or herself, and owned an undivided-half of the laird purchased. There was not such a joint interest as would make a notice to one a notice to both; nor did they stand in such a relation to each other that one would be considered as the agent of the other. The reasons of the law on this point are well stated in the case of Snyder v. Sponable, 1 Hill, 567, wherein Bronson, L, observes: “ On a conveyance to two or more persons, whatever may be the nature of their estate, I am not prepared to admit that notice to one would be sufficient to overcome the registry laws as to all the purchasers. "We have not been referred to any authority in support of such a position, nor has any fallen under my observation. It is easy to see why the estate of the fraudulent vendee should fail; but it is difficult to understand on what principle the other and innocent vendee can also be punished for his transgression. This is not a question concerning the validity of the deed as between the immediate parties to it. The conveyance was undoubtedly operative as between Cochran and the grantees. But a third party comes in and says, The deed ought not to operate against me because you had notice of my mortgage. The reason upon which the objection rests goes only to the party who had the notice; and such estate as he would otherwise have taken under the conveyance may well fail without involving the other and innocent vendee in tbe same consequence. This would I think be so on a conveyance to several persons either as joint tenants, (except in the case of a trust estate,) or as tenants in common.” The same doctrine is decided in Parker v. Kane, 4 Wis., 1, and Wiswall v. McGown, 2 Barb., 281. Erom these authorities, as weE as from the reason of the case, we conclude that the instruction as to the last clause was erroneous. The judgment must be reversed and the cause sent back for a new trial.
All the Justices concurring | [
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The opinion of the court was delivered by
Yalentinb, J.:
This was an action on the official bond of P. S. Eerguson, late sheriff of Wyandotte county. James A. Cruise, John E. Zeits, and Isaiah Walker were the sureties of Eerguson. The plaintiffs below, (defendants in error,) allege in their petition in the court below among other things as follows: “On the 2d of October, 1865, a decree of foreclosure of a mortgage was rendered in the district court of Wyandotte county in an action wherein Michael Dively, Edward Terry and others, were plaintiffs, and Wilkins T. Wheatley, and these plaintiffs and others, were defendants. Said decree among other things ordered that the undivided half of lot five in block six, in Wyandotte City be sold, and the proceeds be applied, first, in payment of the costs, second in payment of the claim of Edmund Terry, amounting to $2,317.90 and interest at the rate of seven per cent, per annum, and third that the remainder, if any, should be paid to the plaintiffs in this action. Afterwards an order of sale was issued, and the said Eerguson, as sheriff, collected tliei'eon $125.73. Afterwards another order of sale was issued, and the said sheriff under said order sold said lot for $4,500, making a total that he collected on said orders of sale $4,625.73. That of this sum it would require $2,509.67 to pay the costs and to pay Terry, and that the remainder, to-wit, $2,116.06, should have been paid to these plaintiffs; yet the said sheriff refused so to do.” A trial was had before a jury. The verdict was for the plaintiffs for $2,500. The plaintiffs remitted $150, and judgment wras rendered accordingly for the plaintiffs for $2,350, and costs. The defendants now seek to reverse said judgment.
I. The first action of the court complained of is, that the court erred in receiving a copy of the sheriff’s bond in evidence, and permitting it to go to the jury. Such evidence was of course unnecessary, because there was no issue upon which it could be introduced; but we cannot see that it prejudiced the defendants’ substantial rights. The plaintiffs founded their action upon said bond, alleging its execution, and setting it out in full. The defendants did not put the existence of the same in issue by denying its execution by a pleading verified by ajfidamt. (Comp. Laws, 235, eh. 30, § 1; Code of 1868, § 108.) The copy of the bond introduced in evidence was an exact copy of the bond pleaded in the .plaintiffs’ petition, and therefore the copy introduced in evidence could prove nothing more than had already been admitted by the pleadings. Admitting then, that the evidence was unnecessary and therefore erroneous, or admitting that the preliminary evidence of the execution of the bond, or of the genuineness of the copy introduced in evidence, was not sufficient, and therefore that there was error, still the error was not substantial.
II. It is claimed that the testimony of Jesse Cooper stating that on the first order of sale “ there was indorsed in the handwriting of the defendant Ferguson his receipt of $125 as received from defendant Chrysler on the-day of —-—was incompetent and illegal. There are several answers to this objection: First, the record does not show that there was any amov/nt testified to. Second, if there was any amount stated it was probably $125.73, and the plaintiffs remitted from their judgment more than enough to cover this amount. Third, if there had been an amount stated the evidence would have been competent in either of two different aspects: 1st, it tended to prove the contents of a lost record, (for a sheriff’s return on an order of sale showing that he had collected money thereon is a part of the record of the proceeding, and it had already been shown that the instrument was lost,) which record tended to show liability on the part of the sheriff; and 2d, it tended to prove the contents of a lost written admission of the defendant Eerguson, without regard to whether said written admission was a record, or not.
III. It is also claimed that the other evidence of Jesse Cooper as follows was incompetent: “On the next day after the confirmation of the sale, namely, Nov. 2d, 1866, he for the plaintiffs demanded of the defendant Eerguson the overplus proceeds of the sale after paying the mortgage debt; that he told Eerguson he demanded it for the plaintiffs, and Eerguson knew he was acting as their attorney.” If a demand was necessary, or if it was necessary under the pleadings to prove a demand, then this was certainly competent evidence. A person may make a demand as well through an agent as by himself. The plaintiffs in this action were defendants in said foreclosure case. Said Cooper was their attorney of record. The decree of the court in said foreclosure ease showed these facts. A copy of this decree accompanied and constituted the body and substance of the order of sale issued by the clerk to the sheriff, January 5th, 1866. Under this order of sale the sheriff levied upon said lot, had it appraised, advertised it for sale, and struck it off to one Moses M. Broadwell, but as Broadwell did not immediately pay the purchase money the sheriff made return of no sale, as follows — “ But said M. M. Broadwell having failed to pay the purchase money aforesaid, said property is not sold for want of buyers.” On the 24th of May, the clerk issued an alias order of sale referring especially to the former order, and the decree of the court, and under this order the sheriff without having the property again appraised, advertised the same and sold it to A. B. Bartlett for the sum of $4,500, and this sale was, on the first day of November, 1866, confirmed by the court. Now, notwithstanding the foregoing facts, the counsel for plaintiffs in error, in his argument on this point, and as his main argument thereon, states in his brief that “his (Cooper’s) name did not appear on the execution as attorney,” and that “ Tutt was not a defendant in the execution.”
IV. “The court’ defendant Ferguson did not “err in refusing to allow the to testify as to whether he received any money on the sale made by him under the order of sale of May 24th, 1866, or whether he executed a deed of the premises so sold to the purchaser, and whether he had asked the court for his sale to be confirmed.” After’a sale of real estate has teen made by a sheriff on execution or order of sale, and the sale confirmed by the court, the sheriff cannot be allowed to show that he has not received the purchase money on said sale. It is his duty to receive it when he makes the sale. He then holds it until the sale is confirmed by the court, and then, without waiting, he pays it over to the persons entitled thereto. He has no right to wait, as is claimed by counsel for Ferguson and his sureties, until a deed is due, (two years, as the law then was — Comp. Laws, 1862, p. 769, ch. 171, §§ 1, 3, 4,) or until a deed is demcmded by the purchaser, as the law now is, or until a deed shall be actually executed. Immediately upon the confirmation of the sale it is his duty to pay “ the purchase money in his hands ” “ to the person entitled thereto.” (Civil code of 1862, § 449; code of 1868, § 458.) In this case the sheriff was bound under the order of sale issued to him when the sale was confirmed first to pay the costs, second to pay said Edmund Terry $2,317.90 and interest, and third to pay the plaintiffs in this case (defendant* in that case) the balance. It does not belong exclusively tó'clie sheriff, as seems to be supposed by counsel for plaintiffs in error, to determine when his sale shall be confirmed. The sale may be confirmed at any time after the sheriff has made his return, and on motion of any person interested therein, or on the court’s own motion, and with or without the consent of the sheriff. (Code of 1862, § 449; Code, 1868, § -458.) The same questions which we have already considered are again raised on the instructions, but it is not necessary to consider them further. There may be a few other questions attempted to be raised which we do not think are of sufficient importance to be considered in detail. Upon the pleadings, the evidence, and verdict, we think the judgment was correct. And it makes _. oa no difference that there was no reply to the defendants’ answer. We have not discovered anything in the answer that required a reply. If the last nine supposed defenses contained in the defendants’ answer had been stricken therefrom the answer would have been just as good as it was with them. The plaintiffs alleged certain facts constituting their cause of action. Now if these facts were true, what was there in any of these nine supposed defenses that would have defeated the plaintiffs’ cause of action? Counsel for plaintiffs in error have not pointed anything out that would; and, if they only raised the questiozr of the truth of the allegations set forth in the petition, then they did not reqzzii-e a reply. Even the general denial, the first defense stated in the answer, was worth nothing so far as it attempted to put in issue the execution of any written instrument set forth in the petition, as said defense was not verified.
The court in the said foreclosure case may have committed some ei’rors, but the sheriff had no right in this proceeding to complain of them. As a rule, none but the par^es 1° an action cam complain of any ez’rors of the e0urt. It is certain that the couz’t committed azz error in confirming said sale; and while we think that, if the order of confirmation had been vacated or the sale set aside at any time before the sheidff had paid over the pz-oceeds o 'ye sale to the persons entitled by the decree of the cozm receive the same, it would have relieved the sheriff from pa) ing over the same, yet while said confirmation remains in force the sheriff is bound to recognize the confirmation as valid, and the sale as valid; and neither he nor his sureties have any right to attack either when sued for the purchase money, as in this case. They can raise no questions of mere irregularity in any of the prior proceedings. The judgment of the court below is affirmed.
Kingman, O. J., concurring.
Brewer, J., did not sit in the case. | [
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|
On October 9, 2009, this court suspended the petitioner, James A. Cline, from the practice of law in Kansas for a period of 3 years. See In re Cline, 289 Kan. 834, 217 P.3d 455 (2009). In its opinion, this court permitted the petitioner to seek reinstatement after serving 1 year of the 3-year period of suspension.
Before reinstatement, the petitioner was required to pay the costs of the disciplinary action, comply with Supreme Court Rule 218 (2010 Kan. Ct. R. Annot. 370), and otherwise comply with Supreme Court Rule 219 (2010 Kan. Ct. R. Annot. 370).
On June 10,2011, Cline filed a motion to suspend the remaining 2 years of the suspension. After careful consideration, this court grants Cline’s motion, suspends the remaining period of suspension, and reinstates the petitioner to the practice of law in Kansas.
It Is Therefore Ordered that Cline be reinstated to the practice of law in the state of Kansas conditioned upon his compliance with the annual continuing legal education requirements and upon his payment of all fees required by the Clerk of the Appellate Courts and the Kansas Continuing Legal Education Commission. Upon the report to the Clerk of the Appellate Courts that the petitioner has complied with the annual continuing legal education requirements and has paid the fees required by the Clerk of the Appellate Courts and the Kansas Continuing Legal Education Commission, the Clerk is directed to enter petitioner’s name upon the roster of attorneys engaged in the practice of law in Kansas.
It Is Further Ordered that this order of reinstatement for James A. Cline shall be published in the Kansas Reports. | [
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|
The opinion of the court was delivered by:
Nuss, C.J.:
Corinthian Bricker pled no contest to one count each of aggravated batteiy (a severity level 5 person felony), driving under the influence (a class B misdemeanor), and failure to present proof of insurance (a class B misdemeanor). Contrary to the plea bargain agreement that recommended sentencing to “Labette Bootcamp Probation,” the district court sentenced Bricker to 36 months in prison on the felony charge and 180 days in jail on each of the misdemeanor charges, with all sentences to run concurrently.
After sentencing, Bricker filed a motion to withdraw plea alleging his counsel was ineffective for failing to learn before the plea that Bricker was actually ineligible for Labette. The district court denied the motion, and the Court of Appeals affirmed. We granted Bricker s petition for review under K.S.A. 20-3018(b) and now affirm.
Facts
In the early morning hours of June 21,2005, Brieker was driving his Ford Ranger between 58 and 62 mph in a 35-mph zone when he broadsided Andrea Cunningham’s Ford Explorer at an intersection in Lenexa. While Brieker was in the hospital, blood and urine samples were drawn. His blood alcohol level measured .22, and his urine indicated the presence of cocaine, marijuana, and barbiturates.
The State secured a search warrant for Bricker’s truck and discovered a crack pipe. Police would later learn that Brieker was driving without any insurance. The State eventually charged Brieker with: (1) aggravated batteiy in violation of K.S.A. 21-3414(a)(2)(A) because of Cunningham’s serious injuries; (2) driving under the influence in violation of K.S.A. 8-1567; and (3) operating a motor vehicle without insurance in violation of K.S.A. 40-3104(d), (g)-
Bricker’s counsel was Mark Fumey. The Friday before his bench trial scheduled for the following Monday, March 6, Brieker entered into a written plea agreement with the State. Under its terms, Brieker agreed to plead no contest to all three charges and to pay a $500 fine on the DUI charge. He also agreed to pay restitution for Cunningham’s vehicle and any of her medical bills not covered by “any available insurance.” In return, the State agreed to join in a recommendation for “Labette Bootcamp Probation,” i.e., placement at Labette Correctional Conservation Camp (LCCC). In the alternative, the State agreed to recommend (1) the middle sentence in the applicable grid box for the felony; (2) 90 days in jail plus a $500 fine on the misdemeanor DUI; and (3) that all sentences run concurrent. The plea agreement appears to be silent on the specifics of the disposition of the misdemeanor insurance charge.
The March 6 bench trial was replaced by a hearing for the court to consider Bricker’s plea. There, the judge advised Brieker that the parties’ joint recommendation for LCCC was not binding on the court:
“[Court]: I have your plea agreement, Mr. Brieker. I want you to understand the court is not obligated or required to follow the recommendations in the plea agreement. They are simply recommendations to the court. You understand that?
“[Bricker]: Yes, I do, sir.
“[Court]: ... I know there is a recommendation to screen your case for possible placement at Labette. You understand the court does not have to place you at Labette? You understand that?
“[Bricker]: Yes, sir.”
Bricker was further advised of the maximum sentences for all of his charges, and the court ultimately accepted his no contest plea.
On March 10, the court ordered Bricker screened for LCCC admission. Bricker would later learn that he was ineligible for admission because he was taking two different antidepressants. After receiving word of Bricker’s ineligibility, Fumey filed a motion for interpretation of plea the day before sentencing.
At sentencing on May 5, Fumey argued that even though Bricker was ineligible for LCCC, the spirit of the plea bargain required treatment and probation. One plea agreement condition included “follow ADSAP [Alcohol and Drug Safety Action Program] recommendations,” and next to the form’s caption “Agreed Disposition,” a handwritten checkmark appeared on the “Probation” line.
The State continued to formally recommend LCCC even though it was not an option. The State further contended that the form’s Probation line was checked only because it was required for LCCC to be an option. Cunningham and her family testified that they supported LCCC and treatment but opposed probation.
The court then sentenced Bricker to the middle grid box sentence of 36 months’ imprisonment on the felony charge of aggravated battery. It also sentenced him to 180 days in jail on each of the misdemeanor charges, with a $500 fine for the DUI charge, with all sentences to run concurrently.
On October 16, 2006, Bricker changed to counsel Jessica Travis, who filed a motion to withdraw his plea. The motion alleged Furney was ineffective because Fumey (1) failed to determine whether Bricker would be eligible for LCCC; and (2) failed to negotiate an “alternative resolution should Mr. Bricker be rejected” by LCCC.
At the hearing on his motion, Bricker presented testimony of criminal defense attorney Jason Billam, who stated his policy was to discuss LCCC eligibility with clients before accepting a plea bargain. Bricker also presented an affidavit from Fumey, where Fumey conceded that he “did not advise [Bricker] that because he was on certain medications, he in fact would not be accepted into [LCCC].”
According to Bricker s testimony, Fumey never discussed with bim “things that might disqualify” him from LCCC placement. Bricker testified Fumey approached him the day before sentencing and stated that “he [Fumey] screwed up and I wasn’t able to get into boot camp, and Judge Davis was going to sentence me to prison the following day.” Bricker testified that he also was never advised by counsel about the possibility of plea withdrawal until after sentencing or that the standard permitting withdrawal would then be higher.
Bricker admitted he understood from his earlier plea acceptance hearing that the judge was not required to sentence him to LCCC. He believed, however, there was a chance he would be sentenced to LCCC. He also admitted that although he had not been sentenced to LCCC, if the judge had instead “granted [him] probation ... or let [him] go to some sort of drag and alcohol treatment program,” he would not be attempting to withdraw his plea.
The district court denied Bricker’s motion, concluding there was no manifest injustice as required under the plea withdrawal statute. The judge stated:
“So the question here is did Mr. Fumey violate some standard of care such that it changed everything in your mind. And I listened to your testimony. I heard the fact that had you gotten a less restrictive probation, you wouldn’t be here asking to have your plea withdrawn. You didn’t get what you wanted. Not everybody at sentencing gets what they want. It’s the judge’s prerogative to pass the sentencing. I make determination[s] based on all the information, what is proper sentence in your case. And I did agree to give you a chance at Labette. I did not agree to give you a chance anywhere else. And Labette did not accept you.
“There is only one other door, and that is the prison door.
“So whether Mr. Fumey failed to negotiate a fall-back position or told you about withdrawing your plea earlier, the point is, it is ... in the final analysis up to the Court’s good judgment and discretion, and I exercised that discretion by sending you to prison based on the information that I had in the case.
“I do not find there is manifest injustice shown here such that the plea should be withdrawn.”
Bricker appealed and the Court of Appeals affirmed. State v. Bricker, No. 99,934, 2009 WL 743375 (2009) (unpublished opinion).
Additional facts will be added as necessary.
Analysis
Issue: The district court correctly denied Bricker s motion to withdraw plea.
Standard of Review
Motions to withdraw pleas are governed by K.S.A. 2010 Supp. 22-3210(d)(l) and (2), which provide:
“(1) A plea of guilty or nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged.
“(2) To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea.”
The district court’s decision to deny a postsentence motion to withdraw a plea is reviewed under an abuse of discretion standard. State v. Beauclair, 281 Kan. 230, 235-36, 130 P.3d 40 (2006). Bricker bears the burden to prove the district court abused its discretion. State v. Sanchez-Cazares, 276 Kan. 451, 454, 78 P.3d 55 (2003). A number of considerations comprise this standard, including review to determine that the discretion was not guided by erroneous legal conclusions. State v. Gonzalez, 290 Kan. 747,755-56, 234 P.3d 1 (2010); State v. Skolaut, 286 Kan. 219, Syl. ¶ 3, 182 P.3d 1231 (2008).
Discussion
Bricker filed a postsentence motion to withdraw his plea, and K.S.A. 2010 Supp. 22-3210(d)(2) authorizes the district court to grant a defendant’s motion only to correct manifest injustice. Kansas courts review at least three factors, commonly known as Edgar factors, after State v. Edgar, 281 Kan. 30, 127 P.3d 986 (2006), when considering whether a defendant has demonstrated the requisite manifest injustice. These are: (1) whether the defendant was represented by competent counsel; (2) whether the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3) whether the plea was fairly and understandingly made. Edgar, 281 Kan. at 36; see State v. Green, 283 Kan. 531, 545-46, 153 P.3d 1216 (2007) (applying the Edgar factors to a postsentence plea withdrawal case); see also State v. Aguilar, 290 Kan. 506, 511, 231 P.3d 563 (2010) (collecting cases discussing the Edgar factors).
While the Edgar factors are “viable benchmarks for judicial discretion,” we have made clear they should not be relied on to the “exclusion of other factors.” Aguilar, 290 Kan. at 512. See State v. Freeman, 292 Kan. 24, 28, 253 P.3d 1 (2011).
As the sole basis for his postsentence plea withdrawal, Bricker argues ineffective assistance of counsel. Our recent opinion in Aguilar is of some assistance. There, the defendant filed a presentence motion to withdraw plea alleging ineffective assistance of counsel due to a concurrent representation conflict of interest. To show a Sixth Amendment violation, a claim of ineffective assistance of counsel based upon conflict of interest requires the defendant to show that the conflict affected the adequacy of the representation. See Mickens v. Taylor, 535 U.S. 162, 172-73, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002); Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980). However, the Aguilar court refused to “equate the lesser K.S.A. 22-3210(d) good cause standard governing a presentence plea withdrawal motion to the high constitutional burden” required for Sixth Amendment purposes by Mickens. 290 Kan. at 513. In reaching its conclusion, the Aguilar court noted that it nevertheless “may be logical and fair to equate the K.S.A. 22-3210(d) manifest injustice standard governing a post-sentence plea withdrawal motion to the high burden imposed on a constitutional claim of ineffective assistance.” Aguilar, 290 Kan. at 513.
What we recently implied in Aguilar, we plainly express today. A defendant filing a postsentence motion to withdraw plea under K.S.A. 22-3210(d) that alleges ineffective assistance of counsel due to deficient performance must meet constitutional standards to demonstrate manifest injustice. See also State v. Muriithi, 273 Kan. 952, 955-56, 46 P.3d 1145 (2002) (applying constitutional standard to a postsentence plea withdrawal motion alleging ineffective assistance of counsel). Consequently, Bricker must meet the commonly known Strickland test and show that (1) Fumey’s perform anee fell below the objective standard of reasonableness and (2) there is a reasonable probability that but for Fumey’s errors, the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S. 1267 (1984); Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985) (adopting Strickland standards); Muriithi, 273 Kan. at 955-56. A “ ‘reasonable probability’ ” is a probability sufficient to undermine confidence in the outcome. State v. Gleason, 277 Kan. 624, 644, 88 P.3d 218 (2004).
On appeal to this court, Bricker continues to argue Furney’s performance was deficient because, before Bricker’s plea entry, Fumey (1) failed to familiarize himself with LCCC admission criteria and (2) failed to advise Bricker of those criteria. He now abandons his lower court contention that Fumey was deficient for failing to negotiate a fallback plan and instead argues that Fumey failed to inform him he could move to withdraw his plea before sentencing. This failure resulted in Bricker having to meet the “manifest injustice” standard instead of the lesser “good cause” standard. Although this two-fold argument was not stated in Bricker’s written motion to withdraw plea, it was sufficiently raised at the hearing to allow its consideration on appeal.
Failure to learn, and advise, of LCCC admission entena
Bricker first analogizes his case to State v. Davis, 277 Kan. 309, 85 P.3d 1164 (2004), to support his claim that the court should allow withdrawal of his plea to correct manifest injustice because of Fumey’s deficiencies regarding LCCC admission criteria. There, Davis’ counsel based the defense on the ground that Davis was not able to “understand the nature and quality of his acts” and therefore was legally insane at the time of the crime. Davis, 277 Kan. at 325. Unfortunately, the defense of insanity or diminished capacity had already been abolished in K.S.A. 22-3220. Additionally, the defense’s own expert witness eventually aided the State by opining that Davis did possess the mental capacity to form the requisite intent to commit the crime. As the Davis court stated, “Had counsel understood the correct legal standard to be applied, counsel would have attempted to secure an expert witness whose testimony would not destroy the very defense he was attempting to establish.” 277 Kan. at 328. The court concluded that defense counsel’s actions were both deficient and prejudicial under Strickland entitling Davis to a new trial.
In a letter Bricker submitted pursuant to Supreme Court Rule 6.09 (2010 Kan. Ct. R. Annot. 48), he argues withdrawal of his plea to correct manifest injustice is also required by Wilkinson v. State, 40 Kan. App. 2d 741, 195 P.3d 278 (2008). Wilkinson was charged with possession of cocaine. While out on felony bond, he was arrested again and received a second charge of cocaine possession. Wilkinson pleaded guilty to the first charge and received probation with an underlying sentence of 28 months. Before his second charge proceeded to a plea, Wilkinson was picked up on a probation violation for failing a drug test.
Wilkinson eventually admitted his probation violation and agreed to plead guilty to the second charge of cocaine possession. In exchange, the State agreed to recommend that Wilkinson’s sentences for both charges run concurrent. However, concurrent sentences were impeded by an obstacle that was “nearly insurmountable.” 40 Kan. App. 2d at 745. Specifically, Wilkinson committed his second offense while he was out on felony bond for the first offense, and Kansas statutes require consecutive sentences in such situations unless that disposition “would result in a manifest injustice.” See K.S.A. 21-4608(d) and K.S.A. 21-4720(a). The Wilkinson court acknowledged that a sentence results in manifest injustice only when it “is obviously unfair and shocks the conscience of the court.” 40 Kan. App. 2d at 742 (citing State v. Medina, 256 Kan. 695, Syl. ¶ 1, 887 P.2d 105 [1994]). The district court ultimately imposed consecutive sentences.
Wilkinson filed a motion to withdraw plea that the district court denied without an evidentiary hearing. He essentially alleged his attorney was ineffective for failing to advise him of the manifest injustice requirement for the court to order concurrent sentences. The Court of Appeals panel held that Wilkinson could not make an informed decision without being advised of the requirements of K.S.A. 21-4608(d) and K.S.A. 21-4720(a):
“fl]n Wilkinson’s case, a concurrent sentence could be given only if consecutive sentences would shock the conscience of the court, and that’s more than a tilted playing field — the test is nearly insurmountable. Yet Wilkinson had eveiy reason to believe that the odds were spread out evenly, not rising to die peak of a mountain. Wilkinson pled guilty in exchange for the State’s recommendation of a concurrent sentence, but the manifest-injustice standard substantially undercut the value of that bargain. Wilkinson could not malee an informed decision about that plea bargain without knowledge of this standard.” Wilkinson, 40 Kan. App. 2d at 745.
The panel reversed the district court and remanded for an evidentiary hearing to determine whether Wilkinson s attorney, as alleged, did not tell him about the manifest injustice standard. If not, “then the attorney s performance fell below the standard of reasonableness.” 40 Kan. App. 2d at 746.
We disagree with Bricker that his situation is sufficiently similar to those of the defendants in Wilkinson and Davis to require withdrawal of his plea to correct manifest injustice. In both those cases, defense counsel took positions that were clearly barred by statute or else contained statutory obstacles that were “nearly insurmountable.”
In Davis, counsel was ineffective for advocating an insanity defense abolished by statute. Accordingly, we held counsel “did not adequately prepare for trial because, by his own admission, he was unaware of the proper legal standard for a defense of mental disease or defect.” (Emphasis added.) 277 Kan. at 327.
Similarly, in Wilkinson, counsel plea bargained for concurrent sentences despite statutes requiring consecutive sentences unless that disposition “would result in a manifest injustice.” Consequently, we held counsel was ineffective because his client “needed to know the applicable legal standard so he could intelligently evaluate this plea agreement.” (Emphasis added.) 40 Kan. App. 2d at 746.
By contrast, Bricker s plea bargain was not statutorily barred. Nor did it contain an obstacle that was almost statutorily insurmountable. More specifically, his counsel did not fail to advise him of an applicable statutory or other legal standard. Fumey’s failure to familiarize himself with the factual admission criteria of the LCCC and his failure to advise Bricker of those facts before Bricker s plea bargain simply do not approach that level.
Bricker s witness, Billam, did testify that the type of LCCC-related facts he discussed with his clients included whether they are mentally ill, have asthma or “anything that you are going to require medication,” and whether they can meet the physical challenges such as sit-ups, push-ups, running, and “those types of things.” However, the hearing transcript discloses that Billam was never offered as an expert witness, much less qualified as one by the defense, a designation which might authorize him to establish standards of performance for criminal defense attorneys. His personal practices, however exemplary, are insufficient for measuring Furney’s performance under a claim of ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S. 1267 (1984) (When criminal defendant complains of ineffectiveness of counsel’s assistance, the proper measure of attorney performance remains simply reasonableness under prevailing professional norms.); cf. Bowman v. Doherty, 235 Kan. 870, 879, 686 P.2d 112 (1984) (Expert testimony is generally required to establish the appropriate standard of care by which professional actions of attorney are measured in malpractice claim because such matter is outside knowledge of the average person.).
Additionally, the record reveals Bricker understood at all material times (1) his admission into LCCC was not guaranteed but depended upon LCCC’s favorable screening; and (2) even if admitted to LCCC, he still was not entitled to have the court order him there. Bricker was clearly advised of these substantial risks when he affirmed his plea bargain with the court and, unlike the defendant in Wilkinson, was able to make an informed decision about it. As mentioned, the judge stated at Bricker’s plea acceptance hearing:
“[Court]: ... I know there is a recommendation to screen your case for possible placement at Labette. You understand the court does not have to place you at Labette? You understand that?
“[Bricker]: Yes, sir.” (Emphasis added.)
During the colloquy at the later plea withdrawal hearing, Bricker was asked about this earlier judicial reference to screening:
“[State Attorney]: What did you think it meant when the judge said, “We’re going to screen your case as a possible placement for Labette?’
“[Bricker]: I just would have said basically that I had a chance to go.
“[State Attorney]: A chance to go?
“[Bricker]: Yes, ma’am. I would be screened to go.
“[State Attorney]: You knew it wasn’t a done deal?
“[Bricker]: Somewhat, yes.” (Emphasis added.)
The judge confirmed this understanding with Bricker at the same hearing: “You were screened for it [LCCC], Screening by implication means you may or may not pass through. There is a possibility you don’t go through.” Indeed, Bricker’s own witness testified that because many times defendants are not screened for LCCC until after they plead, he will, if possible, “negotiate alternatives in case they do not get into boot camp.” (Emphasis added.)
Under all of these circumstances, we cannot conclude that Furney’s performance was constitutionally deficient. As a result, Bricker fails to meet the first prong of the Strickland test. Consequently, we need not consider the second Strickland prong: prejudice. See State v. Gleason, 277 Kan. 624, 649, 88 P.3d 218 (2004). Therefore we need not reach Bricker’s “frustration of purpose” argument contending that without Fumey’s deficient performance, “Bricker would never have entered into a plea agreement of which placement at LCCC was the primary benefit.”
Because Bricker has not met the high burden required under the 6th Amendment to show ineffective assistance of counsel, he has concomitantly failed to show the “manifest injustice” pursuant to K.S.A. 2010 Supp. 22-3210(d)(2) to justify withdrawal of his plea based upon Fumey’s deficiencies regarding LCCC admission criteria.
Failure to advise of plea toithdrawal option before sentencing
Bricker briefly argues that “[compounding Fumey’s failure to inform Mr. Bricker that he was presumptively ineligible for LCCC prior to entering the plea agreement is the fact that” upon learning of LCCC’s rejection, Fumey failed to inform Bricker of two more points before sentencing. First, he could move to withdraw the plea. Second, he would be more likely to prevail in filing such a motion before sentencing, rather than after, because of the resultant change in the standard from good cause to manifest injustice.
In short, Bricker argues these two failures could impact our earlier Strickland analysis of Fumey’s performance regarding the LCCC admission criteria. More specifically, Bricker contends Furney caused him to lose the opportunity to have that particular performance judged on the lesser good cause standard. See Aguilar, 290 Kan. 506 (presentence motion to withdraw plea for ineffective assistance of counsel merely requires good cause, while postsentence requirement of manifest injustice requires meeting 6th Amendment standards). Bricker also appears to suggest these two failures are additional Furney performance episodes to be analyzed under Strickland to demonstrate manifest injustice — either aggregated with Fumey’s LCCC-related performance, or at least independently.
We begin by analyzing the two failures independently under Strickland to determine whether Bricker has met his burden to demonstrate manifest injustice. Under this analysis, Bricker must show that Fumey’s performance fell below the objective standard of reasonableness. If so, he must then show there is a reasonable probability that but for Fumey’s errors the result of the proceeding would have been different: Bricker would have then filed a motion to withdraw his no contest plea and would have insisted on proceeding to bench trial. See Strickland v. Washington, 466 U.S. at 687; State v. Gleason, 277 Kan. at 644; State v. Muriithi, 273 Kan. at 955-56.
Unlike the factual admission criteria for LCCC, the right to seek plea withdrawal, and the applicable legal standards, are statutory. See K.S.A. 2010 Supp. 22-3210(d); Wilkinson v. State, 40 Kan. App. 2d at 746 (if counsel indeed failed to advise client of statutory manifest injustice requirement for court to order concurrent sentences, “then the attorney’s performance fell below the standard of reasonableness”). Moreover, with the disappearance of one of the factual premises upon which the plea bargain is based, it is reasonable to expect that a defendant would be advised of alter natives, e.g., the right to seek plea withdrawal. Bricker s testimony is uncontroverted: Fumey never so advised him.
The State argues it was nevertheless reasonable for Fumey to believe he could convince the judge at sentencing to grant Bricker probation. For example, we have held: “ ‘A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’ ” Gleason, 277 Kan. at 644 (citing Chamberlain, 236 Kan. at 657). We observe, however, that only one sentence of Fumey’s affidavit, and not the affidavit itself, is included in the record on appeal. Accordingly, there is nothing to suggest Fumey even considered anything besides arguing probation, i.e., that there was a strategic choice to be made from various options, including the filing of a plea withdrawal motion. Moreover, the failure to advise a defendant of such an important right is difficult to consider as a deliberately chosen strategy. State v. Carter, 270 Kan. 426, 441, 14 P.3d 1138 (2000) (decision to enter a plea of guilty or not guilty to a criminal charge is a fundamental constitutional right guaranteed to a defendant and lies solely with the defendant). See also Rowland v. State, 289 Kan. 1076, 1086, 219 P.3d 1212 (2009) (only criminal defendant can malee choice of plea).
Accordingly, under these circumstances, Bricker has met his burden to demonstrate the deficiencies were not the result of Furney’s strategic choices. See Gleason, 277 Kan. at 644. As we stated there, “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.” 277 Kan. at 644. As a result, we conclude Fumey’s performance was constitutionally deficient when he failed to advise Bricker of this important option and its accompanying good cause standard.
The prejudice prong of the Strickland test requires Bricker to show a reasonable probability that he would have filed a presentence motion to withdraw his plea and insisted on proceeding to bench trial had Furney advised him of this option. Based upon our reading of the record on appeal, we conclude Bricker has not made this showing.
First, Bricker never testified that had Furney advised him of this option to file a presentence withdrawal motion he would certainly, or even probably, have done so. Indeed, the evidence strongly points the other way. In lieu of prison, the plea bargain provided for joint recommendation of LCCC. See K.S.A. 21-4603d(5) (6 months in LCCC residence while on probation plus 6 months additional probation upon release). It also required payment of restitution for all bills not paid for by any available insurance. In the alternative, the plea bargain recommended a sentence at the middle number on the grid box for the level 5 felony of aggravated batteiy (36 months) and a sentence of 90 days in jail and a $500 fine on the DUI, with all sentences to run concurrently. It does not specify the sentence for the insurance misdemeanor.
If Bricker had attempted to withdraw his plea, and been successful, he would have faced considerably worse with his criminal history score of “H.” Technically, he could have received (1) the upper number in the aggravated batteiy grid box: 38 months imprisonment; (2) per statute, a maximum of 180 days in jail for the DUI plus $1000 fine; and (3) per statute, a maximum of 180 days in jail for the lack of insurance, or fine of $300-$1000. The sentences could have been served consecutively, resulting in a maximum of 38 months in prison, followed by 360 days in jail, or total consecutive incarceration of slightly more than 4 years.
Moreover, the evidence of Bricker’s guilt was overwhelming. His blood alcohol level was .22, almost three times the minimum needed for proving DUI. See K.S.A. 8-l567(a)(l) (legal limit for blood alcohol concentration is .08). His urine revealed a mixture of three different drugs in his system, at least two of which were illegal. He drove a highway speed in the city of Lenexa and eventually broadsided the victim’s car at an intersection. He was belligerent and combative: an officer and firefighter were forced to hold him down at the scene.
Bricker’s victim, Cunningham, sustained a broken pelvis, a broken bone in her low back, a bruised heart, and a punctured lung. She also sustained damage to her liver, spleen, and kidneys. Cun ningham has scars on her abdomen, right leg, and neck and a metal rod inserted in her right arm. She additionally suffered memory loss and depression. Given her injuries and his conduct, we conclude the elements of a level 5 aggravated battery offense are easily met: “recklessly causing great bodily harm to another person or disfigurement of another person.” K.S.A. 21-3414(a)(2)(A) and (b).
Second, once Furney advised Bricker of his LCCC ineligibility, that same day he filed a motion for interpretation of plea to argue for probation because it was “within the spirit of the plea agreement.” It states in relevant part:
“On March 3, 2006, the State and the accused entered into a plea agreement. Line 3 of that agreement states: ‘Parties malee joint recommendation for Labette Bootcamp Probation.’ At the bottom of the agreement under the sub-head ‘AGREED DISPOSITION’, the ‘Probation’ box is checked.
“Because Mr. Bricker is taking certain medications, he is medically un-qualified for the Labette bootcamp. The accused believes the plea agreement clearly contemplated probation, and that it would be within the spirit of the plea agreement for the defendant to ask the court to consider other non-prison sentence alternatives in light of his disqualification from Labette for medical reasons.
“However, the defendant does not want to be accused of breaking the plea agreement, and for that reason, the accused asks for the Court’s guidance in interpretation on this issue.” (Emphasis added.)
Consistent with the written motion, at sentencing Furney did ask for the plea agreement to be interpreted in “the spirit of the plea bargain” to allow for even lesser sanctions than LCCC: probation in this “border box” case and/or 6 months in a drug treatment center, the same time period as Bricker’s required residence in LCCC. Furney also provided an Alcohol and Drug Safety Action Program evaluation strongly suggesting Bricker receive treatment providing that the evaluation was consistent with the plea agreement condition that the parties “follow AD SAP recommendations.” He further noted that eveiyone at the hearing had testified they would like to see Bricker receive treatment. Furney additionally argued they had “bargained for probation,” and screening for the therapeutic community was necessary “in order to live up to the terms of the plea agreement.”
Bricker was present for the hearing, and in his later testimony at the plea withdrawal hearing, acknowledged hearing these Fur ney arguments. As mentioned, Bricker also later testified that had Fumey successfully obtained probation, or some type of drug and alcohol treatment program, Bricker would not be attempting to withdraw his plea. Although not dispositive of the Strickland prejudice prong, Bricker s admission undermines his argument that once he learned he was ineligible for the plea-bargained LCCC, he would have moved to withdraw his plea to face trial — and probable incarceration.
Under these circumstances, we conclude there was no reasonable probability Bricker would have moved to withdraw his plea based upon his LCCC inehgibility and insisted on proceeding to trial had Fumey actually advised him of this option. Instead, Bricker more likely would have approved of Fumey s argument “in the spirit of the plea bargain” for treatment and probation without the accompanying harshness of LCCC.
We finally turn to the additional failures’ impact on, or aggregation with, Fumey’s LCCC-related conduct. As noted, we held this conduct had not independently risen to a constitutional deficiency under Strickland. We agree with Bricker’s implication that Fumey’s presentence failure to advise him of the option of filing a motion to withdraw- — -with its resultant heightened burden of proving manifest injustice — can itself be considered in the determination of whether manifest injustice now exists to warrant plea withdrawal. After all, the failures clearly increased the difficulty of Bricker’s- task.
However, this new “mixed” claim has the same problem as the claim based upon Fumey’s presentence failure to advise Bricker of the ability to file a motion to withdraw plea. As explained previously, under the circumstances of this case, there simply is no reasonable probability Bricker would have requested his plea to be withdrawn before the prison sentence was pronounced. As a result, Bricker has not proven the need to correct manifest injustice — still his statutoiy requirement, given the timing of his plea withdrawal motion — even when influenced by Fumey’s failure to advise him of the ability to file such a motion presentence. See State v. Sanchez-Cazares, 276 Kan. 451, 454, 78 P.3d 55 (2003).
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The opinion of the court was delivered by
Rosen, J.:
On review of an unpublished opinion by the Court of Appeals, Bryant v. Midwest Staff Solutions, Inc., No. 99,913, filed March 13, 2009, claimant James Biyant asks this court to affirm the administrative finding that he was entitled to workers compensation benefits and to reverse the Court of Appeals finding that his injuries were the result of normal activities of daily living and therefore noncompensable.
James Biyant is now approximately 38 years old. In August 1997, he suffered a back injury while jumping from a boat onto a dock. He had a lumbar spine diskectomy on October 15, 1998. While the surgery helped, he experienced ongoing lower-baclc pain, for which different treatments were prescribed.
Bryant began working as a service technician for Shawnee Heating and Cooling/Midwest Staff Solutions through respondent Axiom HR Solutions, Inc., in 2001. While working there, he missed a number of days of work due to persistent back pain.
On March 2, 2003, Bryant was working on a service call. He stooped over to grab a tool out of his tool bag, and when he twisted back to work on the equipment, he felt a “pop” or a “snap.” He experienced a sudden, severe increase of pain in his lower back. The symptoms became significantly worse the following day.
He nevertheless returned to work, but on May 13, 2003, while he was working on an air conditioner installation, he stooped down or tried to lean over to carry out some welding and felt an explosive increase in pain. He then consulted various medical doctors, who eventually recommended surgery to carry out a multi-level fusion. The surgery was performed on September 23, 2003. Following about 6 months of progressive physical therapy, he was discharged from further care in the spring of 2004. He returned to work as a dispatcher in March 2004, but his wages were lowered from $22 to $20 per hour, and his working hours were also reduced.
Biyant voluntarily resigned from his job as a dispatcher in November 2005, having accepted other employment that promised him more hours, advancement, and specialized training in distribution. He subsequently voluntarily resigned from that job because the promised opportunities did not materialize.
On May 19, 2003, Bryant filed an application for a hearing with the Division of Workers Compensation. The administrative law judge (ALJ) found that Biyant was injured in the course of his employment and entered an award totaling $65,966.40. On review, the Kansas Workers Compensation Board (Board) issued an order affirming the. finding of entitlement to compensation and modifying the compensation to a total award of $68,882.40. One Board member dissented, disagreeing with the manner in which insur anee benefits were included in the postinjury wage calculations. Midwest took a timely appeal to the Kansas Court of Appeals.
The Court of Appeals reversed the ALJ and the Board, finding that Bryant was precluded from compensation because his injuries were the result of the “normal activities of daily living.” Bryant, slip op. at 14. The Court of Appeals did not address Midwest’s other issues. This court granted Bryant’s petition for review.
The Court of Appeals concluded that the record did not contain substantial competent evidence to support the Board’s finding that Biyant suffered an injury under K.S.A. 2009 Supp. 44-508(e), because the acts of “stooping” and “leaning” were normal activities of daily living. Slip op. at 14.
Standard of Review
Whether an injury is compensable is a question over which an appellate court exercises unlimited review. Coleman v. Swift-Eckrich, 281 Kan. 381, 383, 130 P.3d 111 (2006).
When issues of statutoiy interpretation arise, the appellate court is presented with a question of law over which it has unlimited review. Pruter v. Larned State Hospital, 271 Kan. 865, 868, 26 P.3d 666 (2001). This court exercises unlimited review over questions involving the interpretation or construction of a statute and owes “no significant deference” to the ALJ’s or the Board’s interpretation or construction. Higgins v. Abilene Machine, Inc., 288 Kan. 359, 361, 204 P.3d 1156 (2009).
An appellate court’s review of questions of fact in a workers compensation appeal is limited to whether, when reviewing the record as a whole, the Board’s findings of fact are supported by substantial evidence, which is a question of law. K.S.A. 2010 Supp. 77-621(c)(7); Casco v. Armour Swift-Eckrich, 283 Kan. 508, 514, 154 P.3d 494 (2007). In reviewing the evidence, the court does not reweigh the evidence or engage in de novo review. K.S.A. 2010 Supp. 77-621(d).
Analysis
As a preliminary matter, we note that during the 2010 legislative session the Kansas Legislature passed and the Governor signed into law significant changes to the Kansas Workers Compensation Act. See Substitute for H.B. 2134, effective May 15, 2011. These changes included the addition of a requirement that an accident or cumulative trauma be the prevailing factor in causing a compensable injury, medical condition, or resulting impairment. The new law also introduces several exclusions from compensability, including “triggering or precipitating events” and “aggravations, accelerations, or exacerbations of a preexisting condition.” The amended statute removes any reference to disabilities resulting from the “normal activities of day-to-day living,” although it addresses situations when employment increases risks or hazards to which workers would not have been exposed “in normal non-employment life.” Substitute for H.B. 2134, sec. 5.
Despite these modifications, the statutory scheme in place when Biyant was injured and filed his claim continues to control in this case.
As a general rule, a statute operates prospectively in the absence of clear statutory language that the legislature intended it to operate retroactively. Owen Lumber Co. v. Chartrand, 276 Kan. 218, 220, 73 P.3d 753 (2003). Even if the legislature expressly states that a statute will apply retroactively, vested or substantive rights are immune from retrospective statutory application. Substantive rights include rights of action “for injuries suffered in person.” Harding v. K.C. Wall Products, Inc., 250 Kan. 655, 667, 831 P.2d 958 (1992) (citing the Kansas Constitution Bill of Rights, § 18). The retroactive application of laws that adversely affect substantive rights violates a claimant’s constitutional rights, because it constitutes a taking of property without due process of law. Rios v. Board of Public Utilities of Kansas City, 256 Kan. 184, 190, 883 P.2d 1177 (1994).
Nothing in the language of the Substitute for H.B. 2134 suggests that the legislature intended that the sections relevant to the present case be applied retroactively. In fact, the legislature singled out one section, new K.S.A. 44-529(c), for retroactive application and was silent about the application of the remainder of the statutory amendments. In addition, Bryant has a vested right to seek com pensation for his injury, and retroactive application would violate due process.
We therefore analyze the issues in this case under the statutory scheme in place when Bryant incurred his injury.
The respondents made two arguments that Bryant’s injury did not arise out of and in the course of his employment, as required for compensation under the Workers Compensation Act (Act). First, Bryant failed to prove that the events of March 2, 2003, and May 13, 2003, constituted injuries, because he already suffered from back pain and the work incidents did not change his condition — they simply intensified it. The second argument, which the Court of Appeals found controlling, was that any injury that Bryant sustained on the job was the result of the normal activities of day-to-day living.
The first contention, while argued at some length by the respondents, carries little force. The record contains credible testimony that the March 2, 2003, incident changed the physical structure of Bryant’s body, causing damage or harm to it. Dr. Vito Carabetta, an independent medical examiner, testified that the incident was an instigating event that changed Bryant’s relatively stable back condition, which was controlled by intermittent treatment, into a condition that required surgery. Dr. Theodore Sandow also testified that the work incidents were the triggering events that led Bryant to needing surgery in 2003. Both doctors opined that Bryant suffered a 25 percent permanent partial functional impairment, of which only 10 percent preexisted the injury. Furthermore, Bryant himself testified that his pain had been intermittent before March 2, 2003, but was continuous afterwards.
An accidental injury is compensable if it only aggravates or accelerates an existing disease or intensifies the condition. Demars v. Rickel Manufacturing Corporation, 223 Kan. 374, 377, 573 P.2d 1036 (1978); Chinn v. Gay & Taylor, Inc., 219 Kan. 196, 202, 547 P.2d 751 (1976). Legal authority and substantial evidence support the Board’s conclusion that the work incidents were injuries.
The second argument revolves around whether the damage to his health that Bryant suffered was a consequence of the normal activities of day-to-day living.
K.S.A. 2010 Supp. 44-508(e) defines injuries:
“ ‘Personal injuiy’ and ‘injuiy’ mean any lesion or change in tihe physical structure of the body, causing damage or harm thereto, so that it gives way under the stress of the worker’s usual labor. It is not essential that such lesion or change be of such character as to present external or visible signs of its existence. An injury shall not be deemed to have been directly caused by the employment where it is shown that the employee suffers disability as a result of the natural aging process or by the normal activities of day-to-day living.” (Emphasis added.)
The nonitalicized language is traceable at least as far back as the amendment to the workers compensation statute enacted inl974. L. 1974, ch. 203, sec. 7. The italicized language was added in 1993. L. 1993, ch. 286, sec. 28. Although no legislative history explains the addition of the new language, the language echoes doctrine found in the case law that had developed around the definition of injuries caused by employment.
The phrase “suffers disability ... by the normal activities of day-to-day living” is susceptible to two subtly yet critically different interpretations. Under one interpretation, the injury is the result of day-to-day living — say, degeneration of a joint that occurs because of the ongoing strain that is placed on the joint both away from the job and on the job. Under the second interpretation, the injury is the result of the same kind of activity that may take place on the job as off the job — say, twisting the body to reach for an object. The syntax of the statute suggests that the former interpretation is correct, in that the wear of day-to-day living resembles the results of the natural aging process and is not like the stress of the worker’s usual labor. Our courts have nevertheless at times followed an interpretation closer to the second way of reading the statutory language.
In Covert v. John Morrell & Co., 138 Kan. 592, 27 P.2d 553 (1933), this court considered a claim by a traveling salesman who lost the use of an eye after someone threw a chunk of mud at the windshield of his car while he was on the road pursuant to his employment. This court found that, while “arising out of the employment” does not require that a claim results from an accident that is peculiar to the worker’s particular employment, the injury
“must arise out of a risk in some way peculiar to that in which he was engaged and not out of a hazard to which he would be equally exposed outside of the business. Claimant’s injury might have been sustained while traveling for his own pleasure as well as while he was in defendant’s employment. The employment in no way provoked or invited the attack.” Covert, 138 Kan. at 593.
The court invoked the doctrine of proximate cause to resolve the issue, finding that an intervening extraneous factor, not the claimant’s employment, was the proximate cause of the injury. Covert, 138 Kan. at 593.
In Taber v. Tole Landscape Co., 181 Kan. 616, 313 P.2d 290 (1957), the claimant suffered permanent injuries from heatstroke sustained after he worked on a hot day trimming trees and cleaning a yard. This court affirmed a finding that the injury arose out of the claimant’s employment. The court held that the workers compensation statute does not apply to an injury
“which cannot fairly be traced to the employment as a contributing proximate cause, and which comes from a hazard to which the workman would have been equally exposed apart from the employment. In other words, the causative danger must be peculiar to the work and not common to the neighborhood — that is, the employment must bring with it greater exposure to injurious results than the exposure to which persons generally in the locality are subjected.” Taber, 181 Kan. at 620.
The court nevertheless rejected the employer’s argument that the heat was a hazard faced by all residents of the community, whether they were working or engaged in any other activity that exposed them to the heat. The court noted that the employment subjected the claimant “to a greater hazard or risk than that to which he otherwise would have been exposed, and . . . the true test in a case such as this is whether the employment exposed the employee to the risk.” Taber, 181 Kan. at 621.
In Siebert v. Hoch, 199 Kan. 299, 428 P.2d 825 (1967), a dairy deliveryman was murdered in his sleep on the premises of his employer. This court held that the death did not arise out of employment. The court noted that, in order to be compensable, an injury must both “arise out of’ and “arise in the course of’ employment. Siebert, 199 Kan. at 303. The two phrases have distinct meanings, and each condition must exist before compensation is available. Siebert, 199 Kan. at 303. An injury arises out of employment when
“there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. [Citations omitted.]
“An injury arises ‘out of employment if it arises out of the nature, conditions, obligations and incidents of the employment. [Citations omitted.]” Siebert, 199 Kan. at 304.
In Boeckmann v. Goodyear Tire & Rubber Co., 210 Kan. 733, 504 P.2d 625 (1972), this court considered a 54-year-old claimant who had a history of degenerative arthritis of the hips. As he stooped down to pull a tire off of a conveyor belt, he was immobilized by pain. The workers compensation examiner found that the claimant’s hip joints had deteriorated to the point where he was unable to perform his job duties and that he was disabled because of the diseased hips and not because of the incident with the tire. The court agreed that the injuries did not arise out of the claimant’s employment and concluded:
“Whatever the origin of Mr. Boeckmann’s crippling arthritis may have been, it was not bom of his employment. It existed before claimant entered upon his duties as an inspector of heavy tires, and it is safe to infer the degenerative process will continue to progress long after Iris retirement. . . .
“[A]ny movement would aggravate Boeckmann’s painful condition and there was no difference between stoops and bends on the job or off.
“[T]he physical, commonplace, day to day activities of a person’s employment, whatever they may be, as they continue to nibble and wear away the bones, joints and tissues which once were strong and sturdy in the early days of youth bring in their wake an endless succession of minute compensable accidents unrelated to time, place or circumstance. In our opinion this philosophy is not encompassed within the boundaries of the Workmen’s Compensation Act . . . .” Boeckmann, 210 Kan. at 736, 739.
In Hensley v. Carl Graham Glass, 226 Kan. 256, 597 P.2d 641 (1979), this court considered a claim that followed the death of a worker who was shot by randomly targeted sniper fire while working on roof-top air conditioners next to a motel from which the sniper was firing. The court noted that there are three general categories of risks: those distinctly associated with the job; those that are personal to the worker; and those that are neutral in that they have no particular employment or personal character. Hensley, 226 Kan. at 258. Even though 15 other people were injured by the sniper, this court found that the employment on the roof made the deceased worker a more accessible and obvious target and the injury therefore arose out of and in the course of his employment. Hensley, 226 Kan. at 261-62.
In Martin v. U.S.D. No. 233, 5 Kan. App. 2d 298, 615 P.2d 168 (1980), a custodian who had chronic lower-back problems was injured when he twisted his body to get out of his truck after arriving at the school parking lot. The court concluded that
“neither the claimant’s vehicle nor the condition of the premises had anything to do with the injury. There were no intervening or contributing causes to the accident except for claimant’s own actions in exiting from the truck. Considering the history of claimant’s back problems, it is obvious that almost any everyday activity would have a tendency to aggravate his condition, i.e., bending over to tie his shoes, getting up to adjust the television, or exiting from his own truck while on a vacation trip. This is a risk that is personal to the worker and not compensable.” Martin, 5 Kan. App. 2d at 300.
In Anderson v. Scarlett Auto Interiors, 31 Kan. App. 2d 5, 61 P.3d 81 (2002), our appellate courts dealt for the first time with the new language of K.S.A. 44-508(e). A worker who routinely got in and out of cars in the course of modifying their interiors injured his back while climbing into a vehicle. The worker had a history of back pain and testified that his back condition could be aggravated by any activity that required him to bend over, stoop, or lift heavy items. The court affirmed the administrative finding for the claimant, concluding that the claimant’s injuiy “followed not only from his personal degenerative conditions but from a hazard of his employment, i.e., the requirement that he constantly enter and exit vehicles. ... If [the claimant] had not been employed as he was, he would not have been equally exposed to the risk that ultimately caused his injury.” Anderson, 31 Kan. App. 2d at 11.
In Poff v. IBP, Inc., 33 Kan. App. 2d 700, 106 P.3d 1152 (2005), the Court of Appeals addressed, in part, the claim of a worker that his varicose veins were a compensable injury resulting from the great amount of time spent standing as part of his job. The employer argued that the varicose veins were a personal condition resulting from the natural aging process and the normal activities of day-to-day living. The court agreed with the appeals board, finding that the legislature did not intend for the “normal activities of day-to-day living” to be so broadly defined as to include injuries caused or aggravated by the strain of physical exertion of work. Poff, 33 Kan. App. 2d at 709. The court concluded that, although standing and sitting are normal everyday activities, the lack of movement and the captive standing for prolonged periods of time were not normal everyday activities and were aggravating factors. Poff, 33 Kan. App. 2d at 710.
In Johnson v. Johnson County, 36 Kan. App. 2d 786, 147 P.3d 1091, rev. denied 281 Kan. 1378 (2006), the claimant, a child-care facilities inspector, injured her knee when she simultaneously turned in her chair and attempted to stand while reaching for an overhead file. The administrative law judge found:
“ ‘It is true that the claimant could have bent her knee in a similar fashion away from work, and thereby injured her knee away from work, but that did not happen here. This was a knee bend in furtherance of the employment — it was something the claimant did to accomplish her job — and it produced a locked up knee.’ ” Johnson, 36 Kan. App. 2d at 787.
The Court of Appeals disagreed, holding that the injury was the result of a degenerative condition that was aggravated by an activity that was not unique to the job. The court relied on the principle that an injury is compensable only if the employment exposes the worker to an increased risk of injury of the type actually sustained. Johnson, 36 Kan. App. 2d at 789.
In Heller v. ConAgra Foods, Inc., No. 96,990, unpublished opinion by the Court of Appeals filed June 22, 2007, the claimant experienced escalating severe osteoarthritis in both knees during her employment on a meat processing production line. The Court of Appeals affirmed the administrative determination that the injuries arose out of the claimant’s employment. The court rejected the employer’s argument that K.S.A. 44-508(e) precluded compensation, because the claimant presented evidence showing that the particular conditions of her employment aggravated or accelerated her condition. The evidence consisted of medical testimony that the prolonged standing and walking on slippery concrete was an important contributing factor that aggravated a preexisting condition.
In Brazil v. Bank One Corp., No. 100,989, unpublished opinion by the Court of Appeals filed June 26, 2009, rev. denied 290 Kan. 1092 (2010), the claimant, a mortgage underwriter, had chronic back problems that grew worse if she sat for long periods of time. On one particular day she flew from Kansas City to Houston and then drove 2 hours to Beaumont, Texas. There she reviewed mortgage files, which required her to sit at a table, reach down for a file, scrutinize the file 15 to 30 or more minutes, shut the file, and reach for a new one. While engaging in this process, she felt a sharp pain go down her left leg, and by the end of the day the pain radiated down both legs. The ALJ found that the employment aggravated the underlying degenerative disease. The Board reversed, finding that the claimant had failed to show that her injury was caused by prolonged sitting or extensive twisting, bending, or sitting. The Court of Appeals affirmed the appeals board, finding that sitting, bending, or twisting were normal activities of day-to-day living and the injury was not compensable.
We cannot discern a consistent principle in these various opinions. Certainly, no bright-line rule emerges from analysis of these cases or from the plain language of the statute. To be sure, twisting or bending over are daily activities, for workers as well as non-workers. So are lifting objects, cutting pieces of meat, typing on keyboards, and walking and standing for extended periods of time. The Court of Appeals’ opinion in the present case tends to remove from the purview of workers compensation protection the many work-related ailments that follow from activities that may also be carried out away from the job.
Although no bright-line test for what constitutes a work-injury is possible, the proper approach is to focus on whether the injuiy occurred as a consequence of the broad spectrum of life’s ongoing daily activities, such as chewing or breathing or walking in ways that were not peculiar to the job, or as a consequence of an event or continuing events specific to the requirements of performing one’s job. “The right to compensation benefits depends on one simple test: Was there a work-connected injuiy? . . . [T]he test is not the relation of an individual’s personal quality (fault) to an event, but the relationship of an event to an employment.” 1 Larson’s Workers’ Compensation Law § 1.03[1] (2011).
Even though no bright-line test for whether an injury arises out of employment is possible, the focus of inquiry should be on whether the activity that results in injury is connected to, or is inherent in, the performance of the job. The statutory scheme does not reduce the analysis to an isolated movement — bending, twisting, lifting, walking, or other body motions — but looks to the overall context of what the worker was doing — welding, reaching for tools, getting in or out of a vehicle, or engaging in other work-related activities.
This approach is consistent not only with the specific language of the statute in question but also with the general purpose of workers compensation laws:
“Workers’ compensation acts are largely the outgrowth of modem industrial life. They give recognition to a broad social obligation, in furtherance of sound public policy. The public has come to realize that in many cases an injured employee engaged in a hazardous employment will be unable to establish actionable negligence on the part of the employer, but that it is unjust to deny relief to the employee on that account. For this and similar reasons, workers’ compensation acts have shifted from the employee to the industry and indirectly to the general public certain burdens incidental to modem industrial operations.” Hormann v. New Hampshire Ins. Co., 236 Kan. 190, 192, 689 P.2d 837 (1984).
Bryant was not engaged in the normal activities of day-to-day living when he reached for his tool belt or when he bent down to carry out a welding task. We therefore reverse the Court of Appeals and hold that Bryant’s injury was covered by the Kansas workers compensation statute.
The Court of Appeals did not address the other issues before it, which related to the calculation of wages. We accordingly remand this case to the Court of Appeals for the purpose of ruling on the other issues originally raised on appeal. We note that relevant case-law has developed between the time when the Court of Appeals decided this case and when this court heard the review.
The case is reversed and remanded to the Court of Appeals with directions.
Robert J. Schmisseur, District Judge, assigned. | [
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The opinion of the court was delivered by
Foth, C.:
This is an appeal from an order quashing service of summons under our long arm statute, K. S. A. 60-308 (b), made on the defendant, J. Albert Murphy, a resident of Iowa. The motion to quash claimed no procedural deficiencies in the manner of service but went only to the question of jurisdiction over the person of the defendant.
Plaintiff claims to have been defrauded — and in one lawsuit it was determined that he was — by a franchise-selling operation out of Iowa. Advertisements in the Wichita papers and the blandishments of a salesman named Coy led plaintiff to become, in May, 1965, a licensee of Speed Print Duplicating, Inc., a purveyor of licenses which authorized its licensees to use its trade name in the printing business. When the results failed to live up to the expectations fostered by the ads and Coy’s promises and the losses mounted, plaintiff looked for someone to sue.
His field of vision narrowed to Speed Print and “J. A. Murphy Company, Inc.,” and, in his first effort to obtain redress, in November, 1968, he sued both, alleging them to be Iowa corporations.
Speed Print shortly drops from sight, but Murphy remains as a central figure. At least three Murphy’s appear in this narrative, and it is essential to understanding the plot to distinguish among them as best one can. The first is J. Albert Murphy, the individual who is the defendant-appellee in this action. The second is “The J. Albert Murphy Co.,” sometimes known as “The Murphy Co.,” sometimes as “J. A. Murphy d/b/a The J. Albert Murphy Co.,” and sometimes as “The J. A. Murphy Co., Inc.” Whether this Murphy was or is a corporation — or if so whether that fact should be ignored — is one of the points of contention in this case. The third is “J. Albert Murphy Enterprises, Inc.,” surely a corporation but just as surely a creature of no substance and uncertain virtue. They will sometimes be referred to as “Murphy,” “Murphy Co.,” and “Enterprises,” respectively.
Speed Print denied any fraud and included in its response to the petition a “cross-claim,” not against the other named defendant, but against “J. A. Murphy, doing business as The J. Albert Murphy Company,” claiming that he was the sole author of any fraud.
This “cross-claim,” against “Murphy” individually, was dismissed on February 2, 1969, because he was never served with process. Its filing, however, apparently stirred just enough breeze for plaintiff’s bird dogs to catch a whiff of their true quarry. On April 24, 1969, plaintiff moved to amend his petition to make “Murphy,” himself, an additional party defendant. This motion was overruled on May 2, 1969, for reasons which do not appear. It may only be surmised that the impendency of the trial, to begin May 19, may have been a factor.
In the meantime the defendant named and served as the corporate “Murphy Co.” answered, alleging its true name to be “Enterprises,” and denying fraud. It cross-claimed against Speed Print for furnishing any information about the operation which might prove to be false; the disposition of this cross-claim does not appear in the record.
In any event, when trial to a jury was begun on the first case only “J. Albert Murphy Enterprises, Inc.,” appeared as a defendant. The result was a judgment in favor of plaintiff, against that entity only, in the sum of $13,300.22.
In aid of execution of that judgment plaintiff conducted a debtor’s examination of our present defendant “Murphy,” in his capacity of president of the corporate “Enterprises.” As a result of the usual catechism it was discovered that “Enterprises” had nominal cash in the bank, no real estate, no leases, no office equipment, no vehicles, no stock, no notes, no mortgages, no bonds, no scrip, no securities, no copyrights or patents, no royalties, and no other assets of any kind; that it was wholly owned by “Murphy;” and that it occupied (rent free) quarters owned by “Murphy” personally, and used his car and his office furniture. Obviously his judgment against “Enterprises” would afford plaintiff no satisfaction and little comfort.
The result was this suit, based on the same alleged fraud but naming as defendants “Murphy” individually and two other individuals, whose roles do not appear.
The petition alleged:
“1. Plaintiff is an individual residing in Sedgwick County, Kansas; defendants are individuals residing in Des Moines, Iowa.
“2. On or about May 16, 1968, the plaintiff entered into a contract with Speed Print Duplication, Inc., through its agent, J. A. Murphy Co., Inc. acting through Jerry Coy.
“3. The defendants fraudulently induced plaintiff to enter into the contract by misrepresenting the training which would be given to plaintiff, by misrepresenting the earning potential of the franchise operation, and by misrepresenting the financing and leasing arrangements.
“4. The defendants were in a superior position and knew or should have known the problems which might arise with the equipment, training and basic income and should have related these facts to plaintiff; further, that a fiduciary relationship existed between plaintiff and defendants, and defendants breached their fiduciary duties.
“5. The defendants are indebted to the plaintiff in the following amounts: $28,609.67 actual damages and $20,000.00 punitive damages.”
The prayer was for claimed damages. Plaintiff is now clearly attempting to pin the alleged fraud on “Murphy” personally, although Coy’s agency is alleged to be on behalf of “Murphy Co., Inc.”
The defendant Murphy’s motion to quash was accompanied by his affidavit, the substantive portion stating:
“That he has not transacted any business within the State of Kansas nor has he committed any tortious act within said State nor does he own, use or possess any real estate situated in the State of Kansas nor has he contracted to insure any person, property or risk located within this State at the time of contracting, nor has he caused injury to persons or property within the State of Kansas arising out of any act or omission outside of this State while at the time of said jury he was engaged in solicitation or service activities within this State or that products, materials or things processed, serviced or manufactured by him any where were used or consumed within the State in the ordinary course of trade or use and that he has never lived in the State of Kansas, at any time.”
As may be seen, the affidavit is purely conclusory in nature, negating one by one the statutory grounds for subjecting a nonresident to the jurisdiction of a Kansas court. As to each possible basis for asserting jurisdiction it amounted to a general denial and no more.
To counter this affidavit, plaintiff filed the affidavit of his attorney, verified on information and belief:
“1) On or about May 16, 1968, plaintiff entered into a contract with Speed Print Duplication, Inc. through its agent, J. Albert Murphy doing business as J. Albert Murphy Company.
“2) J. Albert Murphy Company was a sole proprietorship owned by J. Albert Murphy until July 25, 1969, at which time it was incorporated under Iowa law.
“3) The contract referred to in paragraph 1 was procured by Jerry Coy in Wichita, Kansas acting as an agent of defendant, J. Albert Murphy.
“4) J. Albert Murphy doing business as J. Albert Murphy Company entered into a contract with Speed Print Duplicating, Inc. for the sale of the latter’s franchises and it was for the purpose of selling those franchises that defendant, J. Albert Murphy, acting through Jerry Coy, transacted business with plaintiff in Wichita, Kansas.”
The motion to quash was nevertheless sustained. Plaintiff moved for reconsideration, filing the following additional affidavit, positively verified by counsel:
“1) J. Albert Murphy doing business as J. Albert Murphy Company entered into a contract with Speed Print Duplicating, Inc. for the sale of the latter’s franchises, said contract being marked Exhibit ‘A’, attached hereto, and made a part hereof.
“2) On or about May 15, 1969, Gerald E. Coy’s deposition was taken in Des Moines, Iowa, at which time he testified to the following (said deposition is filed with the Clerk of this Court, Case No. C 15570):
“a. That he worked for the J. Albert Murphy Company.
“b. That he sold Speed Print franchises.
“c. An advertisement appeared in The Wichita Eagle and was placed there by the J. Albert Murphy Company.
“d. He talked to plaintiff in Wichita, Kansas regarding a Speed Print franchise. Hanson called in response to the advertisement in the newspaper. As a result of Coy’s conversation with Hanson, Coy procured Hanson’s signature on the contract attached hereto and marked Exhibit Tf\
“e. Coy told Hanson he (Coy) worked for the Murphy company.
“f. Coy was selling the Speed Print franchise for J. Albert Murphy.
“3) J. Albert Murphy Company was a sole proprietorship until July 25, 1969, on which date it became an Iowa corporation according to the official records of the State of Iowa.”
On reconsideration the trial court adhered to its prior decision, and plaintiff appeals.
The thrust of plaintiff’s argument is that Coy, when soliciting plaintiff’s contract and making the alleged misrepresentations, was acting as the agent of the “Murphy Co.;” that the “Murphy Co.,” whether incorporated or not, was but another name or the alter ego of “Murphy” personally; and that “Murphy” is personally liable for the acts of his agent, which were fraudulent (and therefore tortious). Because such acts were committed in Kansas, the argument goes, Murphy is subject to the jurisdiction of the Kansas courts because he either was transacting business under 60-308 (b) (1), or committed a tortious act under 60-308 (b) (2).
We do not have here the question raised in so many long arm cases of the “minimum contacts” required to confer jurisdiction. E. g., Woodring v. Hall, 200 Kan. 597, 438 P. 2d 135; Tilley v. Keller Truck & Implement Corp., 200 Kan. 641, 438 P. 2d 128. The question presented to the trial court was whether Murphy was personally “present” in Kansas because either Coy was the agent of Murphy personally when he made the representations complained of, or newspaper advertisements were attributable to Murphy personally when inserted by the “Murphy Co.” In either event it seems clear that if “Murphy” was the moving force, he can be held accountable in a Kansas court under our statute.
Thus the primary jurisdictional fact was Coy’s agency — upon which fact also rested the merits of the case against “Murphy.”
The dilemma presented by a question having this dual nature was considered in Nelson v. Miller, 11 Ill. 2d 378, 143 N. E. 2d 673, one of the first and leading cases construing the Illinois act from which our statute is taken. (See Woodring v. Hall, supra, where we took note of our statute’s origin and followed Nelson.) The act there was challenged as placing a discriminatory burden on a non-resident to disprove liability in order to successfully challenge jurisdiction. The Illinois court rejected this construction saying:
“The jurisdictional fact, in the language of [the statute], is ‘the commission of a tortious act within this State.’ The word ‘tortious’ can, of course, he used to describe conduct that subjects the actor to tort liability. For its own purposes the Restatement so uses it. (Restatement, Torts, §6.) It does not follow, however, that the word must have that meaning in a statute that is concerned with jurisdictional limits. To so hold would be to make the jurisdiction of the court depend upon the outcome of a trial on the merits. There is no indication that the General Assembly intended a result so unusual. The essential question in cases of this type is where the action is to be tried. Once it has been determined that the relationship of the defendant to the State is sufficient to warrant trial here, we are of the opinion that the court has jurisdiction to determine the merits of the controversy, and that its jurisdiction will not be destroyed by its exercise.” (11 Ill. 2d 378, 391, 143 N. E. 2d 673, at 680.)
The court reviewed one of the earliest long arm cases, Smyth v. Twin State Improve. Corp., 116 Vt. 569, 80 A. 2d 664, 25 A. L. R. 2d 1193, and characterized its holding thus:
. . Clearly, the Vermont court was of the opinion that the jurisdictional requirements of such a statute are met when the defendant, personally or through an agent, is the author of acts or omissions within the State, and when the complaint states a cause of action in tort arising from such conduct. We adopt that view. An act or omission within the State, in person or by an agent, is a sufficient basis for the exercise of jurisdiction to determine whether or not the act or omission gives rise to liability in tort.” (11 Ill. 2d 378, 393, 143 N. E. 2d 673, at 681; emphasis added.)
Finally, with specific reference to the issue here, the court concluded:
“. . . to the extent that issues common to the merits and the jurisdictional question may be determined preliminarily by the court for purposes of a motion to quash, the determination will of course not be conclusive on the merits. . . . Thus the defendant on special appearance may deny that there was any act or omission in the State on his part, or he may deny that the person whose conduct within the State is complained of was his agent or servant. The preliminary ruling on these issues of jurisdictional fact will not be determinative of the same issues when or if they arise on the merits.” (11 Ill. 2d 378, 394, 143 N. E. 2d 673, at 681-2; emphasis added.)
We think the Illinois court’s analysis is sound, including its view on the Vermont rule, and we continue to follow its precepts. It is true that we have no statute comparable to that of Illinois specifically providing that a finding of fact made in a preliminary determination of jurisdiction is not binding on the merits. We nevertheless believe that rule must obtain, even in the absence of a specific statute. Here the jurisdictional fact is agency; in Nelson the jurisdictional fact was negligence (including lack of contributory negligence), an ingredient required to render the act complained of “tortious.” A binding determination of either fact, one way or the other, would largely determine the merits of the lawsuit. Either issue, an ultimate fact constituting the heart of the plaintiff’s case, is such that if the underlying facts are in dispute the parties are entitled to have it finally determined only after a full fledged trial. To this extent the court’s function in ruling on such a motion to quash (i. e., a motion to dismiss for lack of jurisdiction over the person) is analogous to its function in ruling on a motion for summary judgment. The motion cannot convert the trial into a “trial by affidavits.” (Brick v. City of Wichita, 195 Kan. 206, 211, 403 P. 2d 964.)
The burden of showing jurisdiction is, of course, on plaintiff as the person invoking it. White v. Goldthwaite, 204 Kan. 83, Syl. ¶ 4, 460 P. 2d 578; Oswalt Industries, Inc. v. Gilmore, 297 F. Supp. 307 (D. C. Kan. 1969).
At the time it was required to rule the trial court was faced with:
(a) The allegations of the petition that Murphy committed fraud;
(b) Coy’s testimony, from which it seems that he was the agent of the “Murphy Co.” in whatever form it might have appeared; that the fraud occurred in Wichita, and from which it also might readily be inferred that he acted as the agent of Murphy personally;
(c) the fact that the “Murphy Co.” was unincorporated at the time of the alleged fraud, and was the business name of Murphy personally; and
(d) Murphy’s testimony that “Enterprises” was a hollow shell whose acts might on further showing be held attributable to Murphy personally.
On the other side there was only Murphy’s bald assertions that he had not transacted business nor committed any tort in Kansas.
Clearly the ultimate fact of Coy’s agency on behalf of the corporeal “Murphy” was disputed. Just as clearly, plaintiff presented a prima facie case for the existence of that fact. Plaintiff may not be able to prove all he claims at trial, but if he can, “Murphy” is subject to Kansas jurisdiction. We believe, on the record here, plaintiff was entitled to an opportunity to present his evidence of agency at a trial on the merits. It was therefore error to quash the service of summons.
The judgment is reversed.
approved by the court.
O’Connor and Prager, JJ., not participating. | [
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The opinion of the court was delivered by
Fromme, J.:
These six appeals involve one question. Are the board of county commissioners and the county cleric proper parties defendant in a tax protest action filed under K. S. A. 1971 Supp. 79-2005.
It was stipulated by all parties that our decision herein would control and dispose of all six of these appeals. The pleadings filed in all cases were substantially the same.
A petition was filed and service was obtained on all defendants. The petition demanded the return of ad valorem taxes collected by the county. It was alleged that the taxes were illegally levied against plaintiff’s property in the county, that payment was made to the county treasurer under protest and that said taxes should be refunded. The county treasurer and other state and county officials were made parties defendant in the action. The board of county commissioners and the county clerk then filed a motion to dismiss the action as to them for the reason they were not indispensable, necessary or proper parties defendant.
In each of these six actions this motion to dismiss was sustained by the trial court and the plaintiffs have appealed.
Subsequent to the trial court’s ruling on the questions this court held the board of county commissioners and the county clerk, as county officers having governmental functions on the county level, are at least proper parties defendant in a tax protest action filed under K. S. A. 79-2005 to recover taxes paid to the county treasurer.
That decision made in Northern Natural Gas Company v. Bender, 208 Kan. 135, 490 P. 2d 399, is determinative of these six appeals.
This opinion might well end here but we would like to clear up a misunderstanding which apparently arose from our opinion in Sebits v. Jones, 202 Kan. 435, 449 P. 2d 551. In Sebits the trial court denied recovery of taxes paid under protest to the county treasurer. After reviewing the record on appeal this court affirmed the judgment of the district court. In the course of the opinion certain alleged trial errors were disposed of by this court. The appellant claimed reversible error by reason of an order of the trial court dismissing certain school districts, townships and a hospital district from the action. This court, after examining the record including the petition in the action, held that they were neither necessary nor indispensable parties and that the action encompassed by the petition could proceed to a final adjudication of plaintiff's claim without their presence. (For definition of proper, of necessary and of indispensable parties see Cities Service Oil Co. v. Kronewitter, 199 Kan. 228, Syl. ¶ 1, 428 P. 2d 804.)
In the course of the discussion in Sebits at page 437 it was inadvertently stated that school districts, townships and hospital districts may be proper parties to such an action if they desire to participate. This has been misconstrued to indicate that a proper party to an action not desiring to participate in the defense might be dismissed from the action on his own motion. This is not the law. One who is a proper party to an action must remain in the action whether he desires to participate in the defense or not and any valid judgment is binding upon him.
A party who has been properly joined as a defendant in an action may gain his dismissal only by showing as a matter of law, no genuine issue of material fact being in dispute, the plaintiff is entitled to no relief as to him.
This rule was applied in Rush v. Concrete Materials & Construction Co., 172 Kan. 70, 238 P. 2d 704. In the Rush case an action was filed to enjoin a nuisance. Officers of two corporations were charged with maintaining the nuisance. They demanded a dismissal on the ground the petition failed to state a cause of action as to them. Dismissal was denied and the denial was affirmed by this court. The court said:
“. . . Although there be sound ground for holding Mowbry and Johnson were necessary parties, and less ground for holding Homer a necessary party, we need not so decide for it seems rather clear they were at least proper parties and that the trial court so concluded.” (p. 74.)
In Atella v. General Electric Company, 21 F. R. D. 372 (R. I. 1957), the federal court after quoting Rule 20, which is the counterpart of K. S. A. 60-220 relating to permissible joinder of parties, concluded:
“. . . One who has been properly joined as a defendant may gain his dismissal only by showing that as a matter of law, no genuine issue of material fact being present, the plaintiff is not entitled to recover from him. . . .” (p. 375.)
K. S. A. 60-220 (a) in pertinent part reads:
“. . . All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective liabilities.”
We conclude under the authority of Northern Natural Gas Company v. Bender, supra, that these boards of county commissioners and these county clerks are at least proper parties defendant. The orders dismissing them from the actions are reversed and the cases are remanded for further proceedings in the courts below.
O’Connor and Prager, JJ., not participating. | [
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The opinion of the court was delivered by
Fontron, J.:
Leslie C. Grubb and Exie Grubb were husband and wife. For convenience we shall frequently refer to them as Leslie and Exie, respectively. Leslie departed this life September 20, 1967, and his son, Max Grubb, was appointed special administrator of his estate. In this capacity Max filed this lawsuit against Exie and her daughter and son-in-law, Gretcha and Joe March, to recover certain funds claimed to be assets of the estate. It may be said generally that the action is premised on the theory of an implied or constructive trust. Judgment was rendered in favor of the plaintiff administrator, adjudging the estate to be entitled to a one-half interest in funds totaling $75,000. The defendants have appealed.
The action was tried by the court on depositions. Perusing them we learn that Leslie’s earnings, in the form of salary and bonuses, were quite substantial over the years and that Exie deposited size-able portions thereof in savings accounts and certificates of deposit, some of which at least were originally in the names of Leslie and herself, as joint tenants. At the time of Leslie’s death some of the accounts remained in their joint names, but the majority were titled in the names of Exie and Gretcha, and Exie and Joe.
The Grubb household, it has been made to appear, was not always a haven of harmony. In 1956, Leslie filed an action for divorce, which apparently died a natural death. Discord and contention expanded toward the end of their marriage, extending to physical altercations as well as verbal abuse, and Leslie started a second action for divorce on April 5, 1967. Before that lawsuit was tried Leslie passed away, but not before he and Exie had both been deposed. Additional facts will be developed when and as required.
The first point on appeal relates to the admissibility of the depositions of Leslie and Exie taken during the divorce proceedings but never filed in that case. Neither deposition was signed as required by K. S. A. (now 1971 Supp.) 60-230 (e) and the defendants contend both were inadmissible for that reason. So far as pertinent, the statute reads:
“When the testimony [of the deponent] is fully transcribed the deposition shall be submitted to the witness for examination and shall be read to or by him, unless such examination and reading are waived by the witness and by the parties. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness, unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign. . . .” (Emphasis supplied.)
Both Mr. and Mrs. Grubb were deposed on July 12, 1967. The subscribing officer, a certified shorthand reporter of this state, certified that the original copy of Leslie’s deposition was forwarded to his counsel on September 6, 1967; that he was informed Leslie was ill at the time and unable to read or sign the same and that he died on September 20. The facts recited in the certificate are not refuted or challenged. In our opinion, this situation comes fairly within the exceptions set out in the statute.
In Ballhorst v. Hahner-Foreman-Cale, Inc., 207 Kan. 89, 484 P. 2d 38, a similar situation was presented. The witness whose deposition was taken in that case died the following day. We concluded that no error was committed in admitting the deposition, and we called attention to K. S. A. 60-226 (d) (3) which provides in part that the deposition of a witness who has died may be used by any party. Also in point is Paul v. American Surety Company of New York, 18 F. R. D. 68, in which the federal court held that where a witness was ill at the time he was deposed and remained ill continuously thereafter until the date of his death, his deposition could be used despite the fact it had not been signed.
The defendants further object to Leslie’s deposition on the ground it is hearsay and does not fall within the exception to the hearsay rule noted in K. S. A. 60-460 (c) (2). The statute provides in substance that if the Judge finds the declarant is unavailable as a witness, testimony given by him in a deposition taken in compliance with law for use in the trial of another action is admissible when the issue is such that the adverse party on the former occasion had the right and opportunity to cross-examine and had an interest and motive similar to that which the adverse party has in the action where the testimony is offered.
In our opinion the defendant’s objection lacks merit. The record shows not only that Leslie was cross-examined during the taking of his deposition but that the ownership of bank deposits and accounts was an important issue in the divorce proceedings. That same issue forms the fabric of the instant litigation.
The admissibility of Exie’s deposition taken July 12, 1967, which was also unsigned, is less clear. The deposition was forwarded to her then attorney but, according to Exie’s testimony given in a second deposition dated February 2, 1969, she was never given a chance to see or read it, even though she said she had gone to the lawyer’s office for that purpose. We believe it unnecessary, however, to determine whether Exie’s unsigned deposition was or was not admissible, inasmuch as its contents regarding the various bank accounts were essentially the same as the statements contained in her subsequent deposition. Moreover, much the same ground is covered in other depositions mentioned hereafter.
In other words, the testimony given by Mrs. Grubb in her first deposition was merely cumulative to other evidence which was admitted, particularly that found in her own later testimony. Consequently, no prejudice can be said to result from the admission of her first deposition. This court has said that where a judgment is sustained by substantial competent evidence, the same will not be reversed simply because some incompetent evidence may have been interjected into the case. (State v. Nelson, 196 Kan. 592, 596, 597, 412 P. 2d 1018; In re Estate of Johnson, 176 Kan. 339, 270 P. 2d 293; Kimball v. Edwards, 91 Kan. 298, 302, 137 Pac. 948.) We believe this rule is peculiarly appropriate where a witness repeats, in a second deposition, that which he said in a prior deposition claimed to be inadmissible.
Other grounds have been assigned by Mrs. Grubb for excluding her deposition given in the divorce case. However, in view of what has already been said, no point would be served in further belaboring the matter.
We arrive at the defendant’s second assignment of error which challenges Exie’s second deposition as well as depositions given by four bank officials. In the first place it is said no foundation for their admission was ever laid as required by K. S. A. 60-226 (d) (3), which reads, so far as here seems germane, as follows:
“The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: . . . (II) that the witness is, outside of the .county of the place of trial or hearing, unless it appears that the absence of the witness was procured by the party offering the deposition ...”
, First, so far as Exie’s deposition is concerned, this section of the statute is not applicable inasmuch as K. S. A. 60-226 (d) (2) provides that the deposition of a party may be used .by the adverse party for any purpose, without regard to the limitations of subparagraph (3) cited above. Second, the depositions of two of the four bank officials , show on their faces that the deponents reside in the state pf Missouri and were thus admissible.
The two remaining depositions disclose their authors to be residents of Johnson County, where this action was tried. However, we do not view their admission as being fatal to the plaintiffs cause. Both relate to bank records which show savings accounts and certificates, most of which were titled in the joint names of Exie and. either Gretcha or Joe. In this respect the testimony of these two deponents closely parallels that given by Mrs., Grubb herself, both with respect to the number and size of the accounts, and the manner in which they were titled. Hence, no prejudice is seen in their admission, even though the requisite foundation may not have been laid.
.An additional objection is urged, apparently leveled against all depositions .admitted, predicated on the ground that the trial procedures adoptedby the court deprived the defendants of interposing question and answer objections. On this point the record reflects that at a hearing held September 3, 1969, the trial court indicated it would review the depositions to see whether they were admissible. Defense counsel thereupon stated he would want to object to some portions, although he made no attempt to pinpoint the parts to which he referred or the basis of his objections. In response to this panoramic objection, the trial court observed it would use only the relevant and material portions of the depositions.
Here the matter rested without further action until December 22, 1969, when all parties again convened, apparently to learn of the court’s decision. At this juncture the court announced it was going to overrule all objections to the depositions. No further objections were raised to any deposition at this time, nor were prior objections made more definite.
We are left in the dark both as to the nature of the defendants’ objections and as to what parts of the depositions they were leveled against. Without such information we are in no position to judge whether the objections had been waived (see K. S. A. 60-232 [c]) or whether prejudicial error resulted from their having been overruled. Where error does not result in prejudice, reversal of a judgment is not required. (State v. Sharp, 202 Kan. 644, 451 P. 2d 137.) The burden of establishing prejudice rests, as we have often said, upon the complaining party. (See cases in 1 Hatcher’s Kansas Digest [Rev. Ed.] Appeal & Error, § 408.)
A further procedural error is said to consist in the fact that the deponents were not listed by plaintiff as potential witnesses. There is no merit in this contention. The court entered no order requiring the parties to exchange names and addresses of their witnesses. Hence the rule prevailing in the 10th judicial district empowering the court to make such an order was in nowise violated.
We pass from procedural aspects to substance. It seems clear from colloquies occurring during pretrial hearings that plaintiff relied on the theory that Exie occupied a fiduciary relationship in handling and investing the family funds arising from Leslie’s employment; that she breached that fiduciary relationship by depositing or investing a major share of those funds in savings accounts and certificates of deposit in the joint names of herself and either her daughter, Gretcha March, or her son-in-law, Joe March, thereby placing the funds beyond the reach of Leslie, the breadwinner; and that by so doing she became, in the eyes of the law, a constructive trustee of the funds so deposited.
The record makes clear that the trial court thoroughly understood the theory on which plaintiff was proceeding, and while it made no express finding of a constructive trust, the rationale underlying its decision appears to be that as to the funds placed jointly in the names of Exie and Gretcha and Exie and Joe, a one-half interest therein was being held for Leslie in trust. We believe the evidence of record is sufficient to support the theory of constructive trust.
From the evidence, it appears that Mr. and Mrs. Grubb embarked on their marital journey with only a few hundred dollars between them and that, with relatively minor exceptions, their accumulations had their inception in Leslie’s salary, his bonuses and his commissions; that Leslie’s entire earnings, except $400 per month retained for his personal and business expenses, were turned over to his wife to pay for her household and personal expenses, to pay the couple’s income and other taxes, and to invest the balance. In his deposition Leslie testified he had implicit confidence in Exie; that he took her word as to where their bank accounts were and made no attempt to verify the same; that he had no idea how Exie had shuffled accounts around or when he had learned that she was shuffling them, but that he had learned of this by accident; that Exie was secretive, and Leslie had no access to the safety deposit box. There was evidence to indicate that originally Exie deposited Leslie’s earnings in their names as joint tenants but there is no doubt that when Leslie died, some $75,000 was reposing in bank and savings accounts and in certificates of deposit in which he had no ostensible title or interest.
While the form and variety of constructive trusts are numerous and may arise from many divergent circumstances (54 Am. Jur., Trusts, §220, p. 170), we incline to the belief that the facts disclosed in this case fit within the generally accepted mold. A definition which appears to encompass the circumstances which here confront us is set forth in 89 C. J. S., Trusts, § 15, pp. 726, 727:
“While the term ‘constructive trust’ has been broadly defined as a trust raised by construction of law, or arising by operation of law, as distinguished from an express trust, in a more restricted sense and contradistinguished from a resulting trust it has been variously defined as a trust not created by any words, either expressly or impliedly evincing a direct intention to create a trust, but by the construction of equity in order to satisfy the demands of justice; one not arising by agreement or intention, but by operation of law; or one that arises when a person clothed with some fiduciary character, by fraud or otherwise, gains some advantage to himself.”
The doctrine of constructive trusts is no stranger to this court. It has long found acceptance in the law of this state. (Gemmel v. Fletcher, 76 Kan. 577, 92 Pac. 713; Meador v. Manlove, 97 Kan. 706, 156 Pac. 731; Witmer v. Estate of Brosius, 184 Kan. 273, 336 P. 2d 455.) Contrary to the defendants’ position, judicial recognition has also been accorded to the confidential nature of the marital relationship. In Gemmel we characterized the relation of husband and wife as being confidential in the highest degree known to the law.
. Both sides direct our attention to Clester v. Clester, 90 Kan. 638, 135 Pac. 996, where we said that trusts by implication frequently arise in transactions between persons occupying such intimate relationship as husband and wife or parent and child, but we added that the mere fact that a transaction is between husband and wife is not sufficient in itself to raise a trust by implication. In that case the trial court held the evidence was insufficient to establish a constructive trust. In an opinion which upheld that ruling this court said that under the attending circumstances the conveyance of the farm in question was presumed to be a gift to the grantor’s wife. We observe nothing in the facts shown in the record before us to compel any such presumption in this case. If Mr. Grubb had survived his wife and upon her death had discovered that the fruits of his many years’ labor had been placed beyond his reach by her manipulations after he had entrusted to her his substance, would it be claimed that equity was powerless to correct the wrong? We believe to ask the question is to answer it.
It cannot in truth be said that this case is entirely free of flaws and irregularities but we find nothing of sufficient gravity to warrant reversal. We are enjoined by K. S. A. 60-2105 to disregard technical errors which do not affirmatively appear to have prejudiced the substantial rights of the complaining party, where it appears on the entire record that substantial justice has been done by the trial court’s judgment.
In Phillips v. Fisher, 205 Kan. 559, 470 P. 2d 761, die court expressed its long-standing rule in this way:
“It always has been the rule that a presumption of validity attaches to a judgment of the district court until the contrary is shown. Error is never presumed, and when an appellant brings a case to this court the burden is upon him to make it affirmatively appear that the judgment below is erroneous and that his substantial rights have been prejudicially affected thereby. If he fails in sustaining such burden the judgment must be affirmed. . . .” (p. 560.)
We adhere to the principle phrased in the foregoing quotation and we affirm the judgment of the court below.
O’Connor and Prager, JJ., not participating. | [
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The opinion of the court was delivered by
Foth, C.:
Appellant complains because he was not afforded a hearing on his motion to vacate his conviction, filed under K. S. A. 60-1507. When his motion was denied without such hearing (and without counsel being appointed for him) he filed a “Motion to Rehear De Novo,” insisting on his right to an evidentiary hearing on the original motion. When this motion was similarly denied, he perfected this appeal.
His pro se 60-1507 motion was filed on September 12, 1969, in the court which had earlier that year accepted his plea of guilty to two counts of felony (burglary and larceny, and unlawful possession of a pistol). The main thrust of the motion was that his guilty plea had been coerced, and that the chief instrument of coercion had been his appointed attorney. A subsidiary claim, therefore, was ineffective assistance of counsel.
The claimed coercion was broken down by appellant into three elements. First, he alleged that his attorney had misled him into believing two codefendants had been endorsed as potential witnesses against him. The record shows that the state’s motion to so endorse them had in fact been sustained about two weeks prior to appellant’s scheduled trial date, so he was not “misled.” Second, he asserted that his counsel made him vividly aware of the horrors of prison life, particularly as affecting those sentenced to long terms under the habitual criminal act. It was, of course, incumbent upon counsel to advise petitioner of the possible penalties he faced, and failure to do so would have been a dereliction of his duty. See, Fields v. State, 195 Kan. 718, 720, 408 P. 2d 674; McCall v. State, 196 Kan. 411, 415, 411 P. 2d 647. One of those possibilities was an enhanced sentence because of his prior convictions, and its existence did not amount to “coercion.” Stiles v. State, 201 Kan. 387, 440 P. 2d 592. Neither of these allegations required the trial court to hold a hearing.
The third contention was that his attorney “badgered, cajoled, [and] persistently persuaded him to enter a plea of guilty” despite appellant’s insistence on standing trial, and that during this alleged campaign “[t]he Movant herein was definitely informed personally by appointed counsel he would not make constructive effort to aid him at trial.” This placed him, he alleged, “between a hostile Court of law and an unwilling appointed counsel,” and led to his plea of guilty.
As witnesses who could support his contentions appellant listed the names and addresses of the appointed attorney about whom he complained, and a woman residing in Wichita, who tarns out to be his sister.
What is a trial court’s duty when confronted with such a motion? Under K. S. A. 60-1507 it is to grant a prompt hearing “unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.”
Was there such a conclusive showing in this case? As to the first two of appellant’s points, we think there was, as noted above. As to the third, however, it is difficult to see how the motion, files and records could, standing alone, conclusively foreclose any relief.
The charge made against appellant’s counsel was a grave one, imputing to him an expressed intention to abjure his oath as an attorney and his duty to his client. The claim was tihat if appellant insisted on going to trial his attorney would go through the motions of representing him, but would not in fact assist him in his defense. If this charge were true it would entitle appellant to relief, since a plea entered in the face of this alternative could not be said to be a voluntary one in any meaningful sense of that word.
In this respect the claim is different from that made by the prisoner in Sharp v. State, 203 Kan. 937, 457 P. 2d 14. The element of “coercion” there alleged was counsel’s advice that a guilty plea would enable the defendant to escape the death penalty. This court held that the record of the plea proceedings could not be impeached by the defendant’s uncorroborated allegations where that record demonstrated in meticulous detail the voluntary character of the plea. In addition, two members of the court took the position that the petition alleged no more than that the defendant took his attorney’s advice, and that this could not amount to coercion. The two dissenters, it may be noted, thought the allegations sufficient to warrant relief if proved, and that the naming of the attorney involved as a potential witness made the “uncorroborated allegation” rule inapplicable.
Here, the attorney’s advice was alleged to have been coupled with a threat to subvert the defense if it was not followed. The petition named not only the attorney but appellant’s sister as potential witnesses, and so could not be said to be uncorroborated.
The situation is akin to that in Rodgers v. State, 197 Kan. 622, 419 P. 2d 828, where factual allegations were made which, if true, would be grounds for relief, and potential witnesses were named. We held an evidentiary hearing was required, saying:
“. . . Even though the charges leveled by the petitioner may seem improbable the matter raised could not be determined alone by the files and records of the court.” (p. 624.)
In this case the trial court did not grant a prompt hearing. Rather, some six months after the motion was filed the court requested an affidavit from appellant’s original attorney. This affidavit, recounting the events surrounding his representation of appellant, was filed April 3, 1970. On April 24, 1970, the court entered its order denying relief, concluding on this point:
“The Court requested Movant’s court appointed counsel to file a verified statement regarding the allegations made by Movant although the Court had previously determined that Movant’s allegations were not substantial enough to merit an evidentiary bearing. Tbe Court after having examined counsel’s statement finds no reason to change its finding.
“In view of the record in this case, Movant’s allegations are not substantial enough to merit a plenary hearing.
“The motion, files and records of this case conclusively show that the Movant is entitled to no relief and his Motion should be overruled.”
It will be noted that the court indicated that its decision to overrule the motion summarily had been made before requesting and receiving the affidavit. As indicated above, the case was not a proper one for summary disposition. The fact remains that such disposition was not made until the court had had an opportunity to consider evidence quite apart from the “files and records” in the case.
At this juncture the case approached the situation in Brown v. State 196 Kan. 236, 409 P. 2d 772, where the court heard only the state’s evidence on a 60-1507 motion and refused to permit the petitioner to be present. We held this to be error, since the facts in controversy (whether notice had been given before invoking the habitual criminal act) concerned events in which he had participated. If the claim based on those events was substantial enough that evidence was to be taken, he was entitled to be present under Rule 121 (h). The same may be said here. Despite the trial court’s ultimate finding that the claim was not substantial, it must have entertained some doubt or the affidavit would not have been requested.
One further facet of this case deserves mention, and that involves the present appeal to this court. Appellant filed his pro se notice of appeal and request for counsel on August 31, 1970. On November 13, 1970 the trial court appointed the same attorney who had represented appellant at the time of his plea, and whose conduct was the chief subject of appellant’s complaint. We believe this was improper. It thrust the attorney into a position where his duty to his client and his interest in protecting his personal integrity were in obvious and irreconcilable conflict.
Further, he had already given evidence in the case and was required to urge a position which, if successful, would inevitably lead him to be a witness in the future. He was precluded from accepting employment in the case by the Code of Professional Responsibility, DR 5-101. He nevertheless complied with the trial court’s order and protected appellant’s interests by preparing and filing the Record herein, and then asked leave to withdraw. This court granted such leave the day it was requested, March 11, 1971, and directed the trial court to appoint new counsel “forthwith.” Present counsel was appointed on April 21, 1971.
We have examined the proceedings during which appellant entered his plea. They show a careful inquiry by the sentencing court designed to ascertain the voluntary and knowledgeable nature of the plea, and the factual basis for it. Appellant’s present contentions are rendered highly implausible thereby, but they are not conclusively disproved. Accordingly, the judgment is reversed and the case remanded with directions to appoint counsel and conduct an evidentiary hearing on the original motion.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in a habeas corpus action wherein the father, a resident of Kentucky, sought to have the district court of Johnson County, Kansas, enforce an order of the Circuit Court of Boyd County, Kentucky, granting a permanent change of custody of the divorced couple’s three minor children to the father. The trial court after hearing the matter awarded custody of' the children to the mother, except for the summer vacation period when the father was given temporary custody and the right to take the children to the State of Kentucky. The mother appeals from the order which is essentially in her favor.
Numerous errors, including trial errors, are asserted on appeal. The mother seeks to have the order of the trial court modified to deny the father visitation rights, among other things.
While the basic questions presented on appeal are relatively simple, the somewhat complicated factual background of the matter is necessary to give perspective to our review.
George Thomas Miracle (Petitioner-Appellee) and Janet Hay Miracle (Respondent-Appellant) were divorced on January 15, 1968, by a final decree entered by the Boyd County Circuit Court of Kentucky. Janet was granted custody of the three children, subject to George’s reasonable rights of visitation.
After the divorce in May, 1968, Janet moved with the three children to Ft. Leavenworth, Kansas, and moved in with the Eads family, consisting of Major Hugh Eads, his wife, Nancy, and their three children. Nancy Eads and Janet had been close friends for approximately 22 years. In May, 1970, Mr. and Mrs. Eads were divorced and on June 1, 1970, Janet and her three children and Nancy Eads and her three children all moved into a house at 808 Troost Street in Olathe, Kansas. Janet had employment with the Kansas School for the Deaf.
On June 2, 1970, Janet permitted Ernest and Zelma Miracle, the children’s grandparents, to take the children to Kentucky for summer visitation. On June 15, 1970, while the children were physically present in the State of Kentucky, George filed a motion in the Boyd Circuit Court at Catlettsburg, Kentucky, requesting that he be given the care, custody and control of the children until the 4th day of August, 1970, or until such time thereafter as their mother, the appellant herein, might return to the State of Kentucky to pick them up. A copy of the motion was mailed to Charles S. Sinnette on June 15, 1970. Mr. Sinnette had been Janet’s attorney in the original divorce action in Kentucky. In addition to the motion, a notice scheduling the matter for hearing on June 20, 1970, was mailed to Mr. Sinnette. On the 19th day of June, 1970, a hearing was held at which Mr. Sinnette was present on behalf of Janet. At that time the children were physically present in the State of Kentucky. The Boyd Circuit Court thereupon ordered that the children be placed in the custody of George by placing the children in the home of the grandparents, Ernest and Zelma Miracle, in Catlettsburg, Kentucky, through the 4th day of August, 1970, or until such time thereafter as Janet may return to Kentucky for the purpose of picking up her children. When this order was entered Janet was in Olathe, Kansas.
On the 20th day of June, 1970, Ernest Miracle, the children’s grandfather, and George wrote a letter to Janet in Olathe, Kansas, advising her the court proceeding had taken place and that copies of such proceeding were being forwarded to her.
Janet received this letter on June 22, 1970. It constituted her first notice that the children were not being returned prior to August 4, 1970. Janet immediately telephoned Ernest in Kentucky and discussed the situation with him on the same day she received the letter. On that same day (June 22) Janet consulted with her attorney, Roger Noonan, of Olathe, Kansas, at approximately 1:30 p. m. At that time Mr. Noonan called Mr. Sinnette in Kentucky and discussed the proceedings there. In the conversation Mr. Sinnette advised Mr. Noonan that no order had been entered; that the matter had been continued to June 26th.
Sometime during the late evening horns of June 22, 1970, Janet telephoned Mr. Noonan and consulted with him concerning a journey to Kentucky to pick up her children. Noonan advised Janet she could pick up the children inasmuch as no order had been entered. Accordingly, at 5 o’clock on the morning of June 23, 1970, Janet flew to the State of Kentucky and without the permission of the Kentucky Court, Ernest, Zelma, or George went to the grandparents’ home where she took the children without speaking to any of them to inform them she was taking the children from the State of Kentucky. In this effort she was assisted by her sister and brother-in-law who resided in West Virginia. Janet flew the children back to the State of Kansas from West Virginia.
Upon learning that Janet had taken the children, Ernest proceeded to obtain a warrant for Janet’s arrest. When the warrant was returned from West Virginia unserved, Ernest gave the Boyd County Sheriff a description of Janet and information relating to her presence at the University of Nebraska, where she was taking summer courses in connection with her employment at the Kansas School for the Deaf at Olathe.
At the direction of Janet her Kansas attorney, Mr. Noonan, wrote to Mr. Sinnette and advised him that he was relieved of any authority to speak on Janet’s behalf as of June 24, 1970.
Thereafter, on the 29th day of June, 1970, George filed a motion with the Boyd Circuit Court asking for permanent custody of the children, and for relief from any duty to pay support while the children were absent from the State of Kentucky. On the same day a copy of the motion, and notice of hearing setting the matter for July 10,1970, was mailed to Mr. Sinnette. A copy of the motion, an affidavit by George and a motion scheduling the hearing was mailed to Janet at her last known address in Olathe, Kansas, on the 2nd day of July, 1970. Although Mr. Noonan, on behalf of Janet, had con tacted an attorney by the name of Rice in Kentucky on the 25th day of June, 1970, to check into the situation in Kentucky, no one appeared on behalf of Janet at the hearing held on July 10 on the motion for permanent change of custody. The court there heard evidence, made findings of fact and conclusions of law determining that the court had jurisdiction over the parties and their infant children. It thereupon amended the original custody order granting custody to the father and ordered that Janet return the children to the State of Kentucky. In addition, the Kentucky Court relieved George of his duty to support under the original decree. This order was forwarded to Janet at her Olathe, Kansas, address on July 17, 1970. Her testimony in the record discloses that she does not feel that the foregoing Kentucky order legally affects her.
Prior to the entry of the above order by the Kentucky Court, Mr. Sinnette, on July 1, 1970, filed a motion for permission to withdraw as attorney of record for Janet. The order of the Kentucky Court permitting Mr. Sinnette to withdraw as attorney of record for Janet was filed on July 10, 1970.
On the 14th day of July, 1970, Janet was arrested and incarcerated in Lincoln, Nebraska, and on the following day released from jail under bond. Her arrest was based upon a criminal complaint for kidnapping signed by Ernest Miracle. George and Ernest arrived in Lincoln, Nebraska, on July 15, 1970, and attempted to obtain custody of the children, but in this effort they failed. An attempt was also made to extradite Janet, but the State of Nebraska refused to grant extradition. Janet and her children concluded their summer sojourn in Nebraska and subsequently returned to Olathe.
When Janet left Olathe for Nebraska for additional schooling in the summer of 1970, she placed a hold order on her mail at the Olathe post office. As a consequence Janet claims she did not receive notice of the Kentucky court orders pertaining to custody changes until after the orders were entered.
On the 10th day of September, 1970, the instant action .was initiated in the District Court of Johnson County, Kansas, in the form of a petition for writ of habeas corpus. In the petition George requested the District Court of Johnson County to enforce the order of the Body County Circuit Court in Kentucky and deliver the three children into his care, custody and control.
Janet in her answer alleged in part that she had received no actual notice of any proceeding between June 26 and July 10, because her mail was being held in Olathe. She also alleged that both George and Ernest knew her correct post office address after June 26, at the University of Nebraska and that correspondence addressed to her in Olathe would not be received without unusual delay. She also raised in her answer the question of changed circumstances and conditions which may have a bearing upon the custody of the children. After hearing the case the trial court determined the controversy as follows:
“The Court: This court in determining what is basically a child custody fight, in the form of a habeas corpus action, has the power and the obligation to go beyond the records of the Kentucky Court. Involved in this cause have been questions of full faith and credit, due process and other constitutional issues, questions of conflict of laws, adequacy of notice, and jurisdictional issues have been raised.
“The Court finds and determines from all the evidence and as a matter of law that the orders and the judgments of the sovereign State of Kentucky made and entered in the Boyd Circuit Court, Civil Case No. 7868-C, are valid and entitled to full faith and credit in Kansas and in the present action.
“However, these judgments have no constitutional claim to a more conclusive or final effect in Kansas than in the State of Kentucky. Which is to say, Kansas has as much right to qualify or modify as does Kentucky in the area of the minor children, of Janet Hay Miracle and George Thomas Miracle, their custody, support, visitation and all other matters touching on their welfare and best interest. We need not consider whether this Court has the power and the jurisdiction to make such orders as the children’s welfare demands absent a change in circumstances or conditions, inasmuch as it is the specific finding of this Court that a change of circumstances has occurred subsequent to the judgment and orders of the Kentucky Court. Although the changes are marginal and minimal, this Court finds that the recent surgical procedures performed on one of the children, the fact that they are settled in Olathe schools, and that the children have been emotionally disturbed due to the arrest of their mother in Nebraska and Kansas, and by the various court actions, are significant changes in circumstances to support a modification of the prior judgment.
“By virtue of the children being present before this Court, as are each of the parents, and by virtue of the changes in circumstances between the spring and summer of 1970 and this time, and without drawing conclusions of law as to the lawful residence or domicile of the children, it is the judgment of this Court that the Respondent Janet Hay Miracle should continue as the custodial parent of the minor children, Jayme Sue Miracle, Meggan Miracle and James Thomas Miracle.
“The Court rejects the contention that there is an immoral or abnormal sexual relationship between the Respondent and her friend of 22 years, Nancy Eads. It is, however, impossible to condone the hybred communal family structure of the Miracle and Eads families. And it is the order of this Court that such arrangement be terminated as soon as possible. And it is the further order of this Court that should the Eads family still reside in the Miracle Home on or after December 15, 1970, then and in the event the custody of the Miracle children -will be transferred to their father, the Petitioner, as of December 29,1970.
“This Court has some question about the circumstances of the children visiting in Kentucky and wishes to make it clear that the temporary or seasonal custody for visitation hereinafter ordered accrues to the children’s father, George Thomas Miracle, and not to the grandparents, Mr. and Mrs. Ernest Miracle. Which is not to say that the Petitioner may not exercise his custody and visitation by leaving his children with his parents for some period of time.
“It is the further order of the Court that the custody of the children before-mentioned be with their father from June 14, 1971, to August 20, 1971, and for a similar period of each child’s minority. I would correct the record to reflect the dates of this coming summer. The Petitioner should have such further visitation as is reasonable when visitation can be exercised in the greater Kansas City area.
“Petitioner shall pay to the Respondent as and for child support the sum of $60.00 per month per child until the further order of this Court or the Boyd Circuit Court, provided, however, that the payments for June, July and August of each year shall be prorated, and future payments are to be made on or before the first day of each month in advance, commencing December 1, 1970.
“It is recognized that the father of these children has been put to a great deal of expense and inconvenience and suffered many hardships by virtue of the Petitioner moving from Kentucky and because of her subsequent outrageous conduct. By virtue of her move to Olathe, Kansas, Janet Hay Miracle has an excellent job. Accordingly the costs of this action, including a fee of $300.00 for the Guardian Ad Litem and attorney for the Miracle children shall be taxed two-thirds to the Respondent and one-third to the Petitioner, except that the original filing fee cost deposit and the subsequent $75.00 each party has advanced as an additional cost deposit shall first be applied to the total Court costs before the two-thirds/one-third allocation of the balance. The remarles of Court in rendering its findings, conclusions and judgments and orders, as presently made, shall be transcribed and given to each party with the cost of transcription taxed as part of the Court costs.
“The children may not leave Kansas and go to Kentucky until Petitioner has paid his proportionate share of the Court costs.”
The main thrust of no less than five points of error assigned on appeal by the appellant is that the Kentucky court orders were not entitled to full faith and credit here in Kansas. It is argued the district court erred regarding its determinations of fact and law with respect to the effect of the Kentucky orders.
It is apparent the appellant has misconstrued the trial court’s decision. While the trial court did give lip service to the Kentucky orders and did make a finding that they were all valid and entitled to full faith and credit in Kansas, its actual decision is based upon the evidence of changed conditions which was presented to him in a lengthy hearing. In other words, those findings were immaterial to the court’s decision in this case, and even though the trial court may have erred regarding the validity of the Kentucky orders, that error is harmless in the procedural context of this case, where the court entertained evidence concerning changed circumstances and conditions since the date of entry of the Kentucky orders and based its decision upon that evidence in light of what was best for the welfare of the children.
The appellant’s answer to the petition for a writ of habeas corpus alleges that the appellee was not a fit and proper person to have the care, custody and control of the minor children, but that the appellant was a fit and proper person and that the welfare of the children required the continued custody of the appellant. These allegations in the appellant’s answer were considered by the trial court as sufficient to require the hearing of evidence on the issue of changed conditions. At the hearing the appellant offered evidence of changed conditions, argued that circumstances and conditions had changed and she received a favorable decision on that issue from the court.
Under these circumstances the only legitimate question before the court in this case is whether a trial court has the power in a habeas corpus proceeding, where all parties are before the court and the children are physically present in the State of Kansas, to hear evidence of a change of circumstances when faced with an allegedly valid order from a sister state awarding custody to the petitioner, regardless of whether the court finds that sister state’s order to be constitutionally valid or invalid in the same proceeding.
Should the Kansas Court find in the same proceeding that the Kentucky custody orders were in some way improperly entered, that does not oust the Kansas Court of the power to enter binding orders, when all of the parties are before the court, the children are physically present within the State of Kansas and the evidence shows a change of circumstances.
The Kansas Supreme Court has long recognized that a habeas corpus proceeding is a proper vehicle for the determination of questions pertaining to child custody. For the purpose of determining the right to the custody of a child, the inquiry in habeas corpus proceedings extends far beyond the issues that ordinarily are involved in such proceedings (In re Hipple, 124 Kan. 3, 256 Pac. 1015).
Wear v. Wear, 130 Kan. 205, 285 Pac. 606, is commonly regarded as establishing the Kansas rule on this point. The court there had before it a habeas corpus proceeding involving child custody on facts somewhat similar, and after reviewing numerous authorities it was said in the opinion:
“. . . in this state, and under our statutes as they now exist, a judgment and decree in an action for divorce rendered by the court of another state shall be given the same force as if rendered by a court of this state, ‘and shall, as to the status of all persons, be treated and considered and given force the same as a judgment of the courts of this state of the date which said judgment bears.’
“However, the jurisdiction of the trial court in this proceeding to determine what disposition should be made of the child between the petitioner, on the one hand, and the respondent, on the other, did not depend on the domicile of the child, nor on the domicile of either of its parents. (Finlay v. Finlay, 240 N. Y. 429.) The disposition of a child in a case such as this should depend on the law of the place where the child is found rather than the law of the place from whence it came. In a habeas corpus proceeding between parents for the custody of the child the rights of the parents are to be considered, but the interest of the state, in its position as parens patriae to all minors within its jurisdiction, is ever present. As between the parents themselves, they may be bound by a former adjudication (see Avery v. Avery, 33 Kan. 1, 6, 5 Pac. 418; In re Hamilton, 66 Kan. 754, 71 Pac. 817), but the state, in its relation of parens patriae, looks to the welfare of the child at the time the inquiry is being made, and for that purpose former adjudications between parents is evidenciary only and not controlling. . . .” (p.224.)
Subsequent decisions following the Wear case are White v. White, 160 Kan. 32, 159 P. 2d 461; Moloney v. Moloney, 167 Kan. 444, 206 P. 2d 1076; and In re Thompson, 178 Kan. 1, 282 P. 2d 440; and see, Price v. Price, 187 Kan. 292, 356 P. 2d 1013.
One of our more recent decisions on the point is Perrenoud v. Perrenoud, 206 Kan. 559, 480 P. 2d 749; there the proceeding before the District Court of Johnson County, Kansas, was a habeas corpus action involving custody of minor children.
The law of this state is stated in the following syllabi in that decision as follows:
"7. The paramount concern of courts in every child custody proceeding is the welfare of the child.
“8. In the interest of a minor child’s welfare, a court of this state, when the child is physically present therein, has jurisdiction over his care, custody and control, although the court of a sister state has ‘concurrent jurisdiction.’
“11. Full faith and credit has only limited application to a child custody decree; it is inherent in the nature of such a decree that it is not final and conclusive, but is subject to the right of the parties to show a change of circumstances and conditions.”
The doctrine of parens patriae has long been recognized in Kansas and has been held applicable in habeas corpus proceedings since the adoption of our new Code of Civil Procedure, which embodied revisions of the old habeas corpus procedure. (Turner v. Melton, 194 Kan. 732, 402 P. 2d 126; and see also Murphy v. Murphy, 196 Kan. 118, 122, 410 P. 2d 252.)
There seems to be little doubt under this doctrine that the District Court of Johnson County, Kansas, acted within its power to modify the Kentucky change of custody order by granting the appellant custody of the children, subject to summer custody which was given to the appellee for the purpose of insuring visitation. If it be said that the Kentucky custody order of July 15, 1970, is invalid for some reason, the original decree of divorce entered in January of 1968, is still in effect. Under that decree, the appellee is entitled to reasonable visitation with his children, and it can hardly be said the Johnson County District Court lacked the power, after hearing all of the evidence in this case, to award custody during the summer months to the appellee so that he could be assured the right to see his children at minimum expense. The record discloses no evidence presented by the appellant in the trial court to show the appellee was in any way unfit to have the custody of his children during the summer months.
Under Kentucky law, a custody decree entered by the courts of Kentucky is always subject to modification by that court, and even if the Kentucky custody order is entitled to full faith and credit in Kansas, it is not entitled to any more credit than in Kentucky. Kentucky cases holding that a decree awarding custody to a parent is always subject to modification are: Cole v. Cole, 299 Ky. 319, 185 S. W. 2d 382; Wright v. Wright, 305 Ky. 680, 205 S. W. 2d 491 (1947); Beutel v. Beutel, 305 Ky. 683, 205 S. W. 2d 489 (1947); Weightman v. Hamilton, 261 S. W. 2d 680 (1953).
It is clear the Kansas court had the power to modify the Kentucky order on custody upon a showing of changed circumstances and conditions.
K. S. A. 1970 Supp. 60-1610 now controls what are sufficient jurisdictional bases for the entry of custody and other orders. This statute enumerates three bases conferring jurisdiction upon the district court to make orders advancing the welfare of minor children. The one with which we are here concerned is the physical presence of the children within the county. Prior to the expanded basis for jurisdiction granted under this statute, and at a time when domicile was thought by the Kansas court to be determinative of jurisdiction, the court had before it on many occasions questions concerning the validity of foreign custody decrees (see Wear v. Wear, 130 Kan. 205, 285 Pac. 606; Woodall v. Alexander, 107 Kan. 632, 193 Pac. 185; Kruse v. Kruse, 150 Kan. 946, 96 P. 2d 849; Tompkins v. Garlock, 189 Kan. 425, 370 P. 2d 131; Price v. Price, 187 Kan. 292, 356 P. 2d 1013; White c. White, 160 Kan. 32, 159 P. 2d 461; Moloney v. Moloney, 163 Kan. 597, 185 P. 2d 167; Leach v. Leach, 184 Kan. 335, 336 P. 2d 425.
The appellant contends the trial court erred in overruling her motion for judgment on the pleading at the commencement of trial.
K. S. A. 60-207 provides for pleadings used in civil practice. The statute says that “There shall be a petition and an answer; a reply to a counterclaim denominated as such; . . .”
The appellant contends her verified answer to the petition functioned as a counterclaim and, as such, demanded a written reply. No written reply having been filed the appellant moved for judgment on the pleading.
The appellant’s allegation of a change in conditions in her answer was neither a counterclaim nor was it denominated as a counterclaim. The trial court specifically found, in overruling the appellant’s motion, that changed circumstances was a material issue in the case. The parties to this proceeding had assumed the issue to be present in the early stages of the case. The actual need for a hearing was brought about by the fact that the appellant wished to introduce evidence of changed circumstances. In ruling on the motion the court said:
“From the previous conference on the matters of law, which at least in part were in the nature of pre-trial hearings, the Court has been given to understand that this was a material issue in the case, and although there is no pre-trial order drawn to that eEect, it is quite obvious to the Court that that is the situation. The motion is overruled.”
K. S. A. 60-1504 provides for a verified answer to the writ of habeas corpus. There appears to be no requirement in this statute or in any other statute under Article 15 covering habeas corpus procedure which would require the filing of a reply to any portion of the answer. Accordingly, it is held the trial court did not err in overruling the appellant’s motion.
The appellant complains of the trial court’s rulings on the admissibility of evidence over her objection, the exclusion of her evidence, and refusal to consider answers to requests for admissions lodged by the appellant.
Examination of the record shows the case was tried without objections to hearsay evidence. In the rather limited amount of verbatim testimony included in the record only four of twenty-six objections made by counsel were sustained. Of these objections no less than twelve were for hearsay evidence and of these twelve only one was sustained. At one point in the record counsel for the appellant interjected: “I don’t want to be left without an objection to his [appellee’s] hearsay if mine is later stricken, so this objection will be continuing to the remarks of the children.”
The proceedings herein were to the court and without a jury. The rules of evidence in this context are not as important as they are when a matter is presented to a jury of twelve laymen. It is apparent the court with the assent of counsel followed a very liberal procedure and allowed into evidence most matters presented. This procedure was more beneficial to the appellant than to the appellee because the appellant was thereby permitted to present a large quantity of hearsay evidence concerning the conversation between Mr. Noonan and Mr. Sinnette, the attorney in' Kentucky. In any event, the appellant has not shown any prejudice from either the exclusion or admission of any evidence in this case in view of the fact that the appellant is appealing, in effect, from a case which she won.
The appellant asserts for the first time on appeal matters concerning her request for admissions. The record shows that no objection was made in the trial, either before trial, during trial, or upon the motion for a new trial concerning the failure of the appellee to sign the admissions under oath. The appellee testified in person and was cross-examined by the appellant and no issue was presented at the trial level on the point. The appellant cannot be heard to' complain where the point is first presented on appeal. Actually, the procedure adopted at the trial level was to accommodate the appellant in shortening the time before trial, and most of what was contained in the response to the request for admissions involved testimony that was presented directly to the trial court.
The appellant contends the trial court erred in granting the appellee custody during the summer months in the State of Kentucky. This poses the question whether the trial court based its split custody decision upon substantial competent evidence and whether the trial court abused its discretion in entering such decree.
Considering all of the evidence presented to the trial court there is nothing to indicate why the appellee should not be entitled to have summer custody of his children. There has been no evidence presented to show him in any way unfit to have the custody. The appellee has spent considerable money attempting to obtain an order whereby he may visit with his children at minimum expense during the summer in the State of Kentucky where he lives. The children are of suitable age for travel to Kentucky and, in fact, in years past have made summer trips to that state. The appellee has remarried, and the evidence shows that he and his wife are not only fit, but are capable of taking care of the children during the summer months.
A parent who is a proper person is entitled to have access to, and at reasonable times to be allowed to visit and be visited by, a child whose custody has been given to the other parent (Price v. Price, 187 Kan. 292, 296, 356 P. 2d 1013). The desirability of such visitation was discussed in the case of In re Hipple, 124 Kan. 3, 256 Pac. 1015.
The trial court’s order granting the appellee custody during the summer months in the State of Kentucky was based upon the evidence presented and is well within the discretionary power of the trial court.
A related point asserted by the appellant is that the trial court neglected to require the appellee to post a bond as a prerequisite to exercising his custody rights each summer prior to the removal of the children from Kansas to the State of Kentucky. The appellant contends a bond must be required to guarantee the return of the children to Kansas at the conclusion of any visit by them in Kentucky.
This is not a ground for a reversal of the trial court’s split custody order. The appellant is free to request the District Court of Johnson County to order the appellee to post a sufficient bond prior to the release of the children to the appellee for the summer visitation in Kentucky to assure their return to the State of Kansas.
The appellant contends the trial court “erred in finding that there was anything detrimental to the Respondent’s children from the presence in her home of Mrs. Nancy Eads” and her children, and in conditioning the appellant’s custody of her children on the removal of Nancy Eads and her children from the home.
It would serve no purpose to discuss this point in full. Suffice it to say the appellant and Nancy Eads lived together during the pendency of the original divorce action of the appellant in the State of Kentucky in 1968, and after the divorce was granted. In February of 1968, when Nancy Eads and her husband moved to Leavenworth, Kansas, the appellant and her three children followed in May of 1968, and moved into Eads’ home. While this living arrangement existed Major Eads and Nancy divorced and the two women and their children have lived together in the same home with their children until the district court order in this action was entered.
It cannot be said on the record presented the trial court abused the exercise of its power of discretion in requiring the removal of Nancy Eads and her three children from the home of the appellant.
The appellant complains of the trial court’s order apportioning costs and of the refusal of the trial court to make an award to her for attorneys fees incurred as a result of this action.
The record discloses the appellant had a take-home pay of $575.00 per month while the appellee’s job was described to be a nickel and dime job and highly seasonal, resulting in periods of the year when he would be unemployed.
The taxing of costs in an action of this nature will be reviewed only where it is shown that the trial court abused the exercise of its power of discretion. (See, Commercial Asphalt, Inc. v. Smith, 200 Kan. 362, 436 P. 2d 849, Syl. ¶ 6). The trial court heard all the evidence and exercised its discretion in the matter of assessing costs. On this point it cannot be said the trial court erred.
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The opinion of the court was delivered by
Fromme, J.:
This appeal questions the constitutionality of K. S. A. 1971 Supp. 60-2006. This statute authorizes the allowance of a reasonable attorney fee as costs in actions on small claims of less than $500.00. The claims must be for damages caused by the negligent operation of motor vehicles. Attorneys’ fees are allowed only to the prevailing party if he recovers damages.
The appellant, Karl Schwiethale, contends the statute is constitutionally impermissible under the equal protection and due process clause of the United States Constitution (Amendment 14, § 1).
The plaintiff, Dave Pinkerton, was unsuccessful in the court of common pleas but on appeal he recovered judgment for damages in the district court of Sedgwick County. Suit was brought for $499.99. No tender was made by defendant prior to the commencement of the action. The judgment recovered was for $467.34. In addition Pinkerton was awarded his costs including an attorney fee of $500.00. This appeal followed.
A procedural question is raised by appellee Pinkerton but we will proceed directly to the primary point on appeal.
The statute in question provides:
“In actions brought for the recovery of damages of less than five hundred dollars ($500.00) sustained and caused by the negligent operation of a motor vehicle, the prevailing party, if he recovers damages, shall be allowed reasonable attorneys’ fees which shall be taxed as part of the costs of such action: Provided, That when a tender has been made by the adverse party before the commencement of the action in which judgment is rendered, and the amount recovered is not in excess of such tender, no such costs shall be allowed.” (K. S. A. 1971 Supp. 60-2006.)
The attack upon the statute based upon the “equal protection and due process” clause is two pronged. First, appellant contends the allowance of an attorney’s fee to only the prevailing party if he recovers damages is constitutionally impermissible as a discriminating penalty, since it has a chilling effect on litigating a meritorious defense against a questionable claim. The statute does not authorize a similar allowance to the defendant if he successfully defends. Second, it is earnestly contended that the classification is impermissi-' bl¿ because there is no reasonable basis in the classification to sup port the distinctions inherent therein. We will discuss these contentions in reverse order.
The Fourteenth Amendment to the United States Constitution in part provides:
“. . . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (§1.)
The protections afforded by this amendment have been construed to permit legislative classification under the powers reserved to the states. The police power of the state is an attribute of sovereignty to be exercised for the public welfare. States have the power to legislate against what are found to be injurious practices in their internal and business affairs so long as their laws do not contravene some specific federal constitutional prohibition or some valid preemptive federal law.
Under the “due process and equal protection” clause of the United States Constitution (Amendment 14, § 1) reasonable classifications of persons are permissible, for it is only invidious discrimination which offends. (Ferguson v. Skrupa, 372 U. S. 726, 10 L. Ed. 2d 93, 83 S. Ct. 1028, 95 A. L. R. 2d 1347.)
The classification to be employed in an exercise of the police power cannot be made arbitrarily Any distinctions inherent in a particular classification must furnish a proper and reasonable basis for such a classification. (Gulf, Colorado & Santa Fe R’y v. Ellis, 165 U. S. 150, 41 L. Ed. 666, 17 S. Ct. 255; State, ex rel., v. Consumers Warehouse Market, 185 Kan. 363, 370, 343 P. 2d 234.)
Let us consider the classification employed by the legislature in the present statute. Generally the classification relates to all parties who may cause damage by the negligent operation of a motor vehicle. The word “parties” as used in this statute, which is a part of the Code of Civil Procedure of this state, encompasses all litigants, both persons and corporate bodies. There is no discrimination in the classification defined by the use of the term “parties”.
The classification relates to those who cause damage by the negligent use of a motor vehicle. This is an age of almost universal ownership and transportation by motor vehicle. With few exceptions there is a car in every garage and sometimes two or three. The streets and highways in many areas of the state have become congested. Vehicular accidents occur with increasing frequency. There has been a proliferation of law suits arising from these accidents. These law suits burden the courts of this state. Many suits are brought on small claims for less than $500.00. Because of the increasing number of these suits serious delays in court have occurred because of a backlog of cases. Several years may pass after an accident before a meritorious claim can be collected through the courts. Abuses arise from this delay. Those who have negligently caused the damage, or their insurance carriers, may refuse to pay a just claim in order to take a calculated risk. The expenses and attorney fees which a claimant with a small meritorious claim must incur to successfully collect his claim may seem prohibitive to the claimant. The injured claimant may well decide to forego his rights in court rather than wait, worry and litigate. Especially is this true in cases of small claims. The time and expense necessary to investigate and prosecute a small claim is frequently out of proportion to the amount recoverable.
After reading this statute it is apparent that the legislature of this state turned its attention to this type of suit and determined that unjustified evils and abuses exist which affect the public welfare of this state.
We do not mean to infer in the present case that the defendant calculatingly refused to pay a just claim against himself. The claim was allowed in the district court after first having been denied in the court of common pleas. Appellee’s claim was subject to some question. However, if the statute is constitutionally permissible the merit of appellant’s defense, or the lack of it, is determined by and must remain with the trial court.
Generally any classification imposed by ordinance or statute in an exercise of the police power must be reasonable and must rest upon some ground of difference fairly related to the objects of the legislation. (See City of Derby v. Hiegert, 183 Kan. 68, 325 P. 2d 35.) The object of the legislation in the present case appears to be fairly related to the classification imposed.
K. S. A. 1971 Supp.' 60-2006 appears to be grounded on police regulation in the public welfare having for its legitimate purpose the promotion of prompt payment of small but well-founded claims and the discouragement of unnecessary litigation of certain automobile negligence cases.
The use and ownership of motor vehicles generally have been considered proper areas of concern for the exercise of the police power. Various laws restricting rights arising from the use and ownership of motor vehicles have been found constitutionally permissible.
In Hess v. Pawloski, 274 U. S. 352, 71 L. Ed. 1091, 47 S. Ct. 632, the high court upheld a ‘long arm statute” against constitutional attack. Non-residents using-the highways of a foreign state may be subjected by statute to a judgment in personam when other non-residents may not. The public interest which attends the use of motor vehicles was recognized in Hess where it was said:
“Motor vehicles are dangerous machines; and, even when skillfully and carefully operated, their use is attended by serious dangers to persons and property. In the public interest the State may make and enforce regulations reasonably calculated to promote care on the part of all, residents and nonresidents alike, who use its highways. . . (274 U. S. 352 at 356.)
The curtailment of the rights of guests riding in motor vehicles is another example of public interest justifying legislation. In Silver v. Silver, 280 U. S. 117, 74 L. Ed. 221, 50 S. Ct. 57, it was said:
“. . . In this day of almost universal highway transportation by motor car, we cannot say that abuses originating in the multiplicity of suits growing out of the gratuitous carriage of passengers in automobiles do not present so conspicuous an example of what the legislature may regard as an evil, as to justify legislation aimed at it, even though some abuses may not be hit. [Citations omitted.] It is enough that the present statute strikes at the evil where it is felt and reaches the class of cases where it most frequently occurs.” (p. 123.)
The Kansas “guest statute” has been upheld by this court against attack under the “equal protection and due process” clause. See Wright v. Pizel, 168 Kan. 493, 214 P. 2d 328, and Westover v. Schaffer, 205 Kan. 62, 468 P. 2d 251.
The small claim distinction inherent in the present classification appears to have a reasonable basis for the distinction. A small claim distinction of $200.00 has been recognized and approved by the United States Supreme Court. In Missouri, Kansas & Texas Ry. v. Cade, 233 U. S. 642, 58 L. Ed. 1135, 34 S. Ct. 678, it was said:
“. . . It is a police regulation designed to promote the prompt payment of small claims and to discourage unnecessary litigation in respect to them. The claims included appear to be such as are susceptible of being readily adjusted by the party responsible, within the thirty days that must intervene between the presentation of the claim and the institution of suit. We may imagine that some other kinds of claims might as well have been included; but it is to be presumed that the legislature was dealing with an actual mischief, and made the act as broad in its scope as seemed necessary from the practical standpoint. . . .” (p.649.)
The appellant next contends the allowance of an attorney fee to the prevailing party if he recovers damages is impermissible because it becomes a penalty which has a chilling effect on the defense against questionable claims. In such case the protections afforded a plaintiff and a defendant are not equal.
Many statutes may be found which have allowed attorney fees as costs to the plaintiff when he has been successful in prosecuting his case. Such allowances have largely been upheld when constitutionally challenged. See Gulf Rld. Co. v. Shirley, 20 Kan. 660; Railroad Co. v. Matthews, 58 Kan. 447, 49 Pac. 602, aff. sub. nom. Atchison, Topeka &c. Railroad v. Matthews, 174 U. S. 96, 43 L. Ed. 909, 19 S. Ct. 609; Assurance Co. v. Bradford, 60 Kan. 82, 55 Pac. 335; Fritz v. State, 80 Kan. 168, 101 Pac. 1013; Hinds v. Fine, 162 Kan. 328, 176 P. 2d 847, and Service v. Pyramid Life Ins. Co., 201 Kan. 196, 440 P. 2d 944.
The United States Supreme Court has approved such an allowance. In Missouri, Kansas & Texas Ry. v. Cade, supra, it said:
“If the classification is otherwise reasonable, the mere fact that attorney’s fees are allowed to successful plaintiffs only, and not to successful defendants, does not render the statute repugnant to the “equal protection” clause. This is not a discrimination between different citizens or classes of citizens, since members of any and every class may either sue or be sued. Actor and reus differ in their respective attitudes towards a litigation; the former has the burden of seeking the proper jurisdiction and bringing the proper parties before it, as well as the burden of proof upon the main issues; and these differences may be made the basis of distinctive treatment respecting the allowance of an attorney’s fee as a part of the costs. . . .” (p. 650.)
The statutory allowance of attorneys’ fees as costs to the prevailing party if he recovers damages is constitutionally permissible if the classification of persons is otherwise reasonable. We see no invidious discrimination in the allowance which would offend against the “equal protection and due process” clause of the United States Constitution.
It should also be noted the allowance permitted under this statute is not limited to successful plaintiffs. The statute provides the prevailing party if he recovers damages is entitled to a reasonable attorney’s fee to be taxed as costs. Fault is the basis for the allowance and not who files the suit. Both parties may contend for damages based on the fault of the other. The defendant does so by cross-claim under K. S. A. 1971 Supp. 60-213. In such case either party may recover attorneys’ fees as costs if he recovers his damages.
The appellant relies largely upon two cases to support his position on appeal. The first case is Atkinson v. Woodmansee, 68 Kan. 71, 74 Pac. 640, 64 L. R. A. 325, and the second is Gulf, Colorado & Santa Fe R’y v. Ellis, supra. Neither case is persuasive here. The classifications of debtors to which the statutes in those cases applied were arbitrary, discriminatory and constitutionally impermissible. In each case the court found invidious discrimination inherent in the classifications. No proper or reasonable basis for the distinctive treatment was apparent. Accordingly it was held to be an improper classification under the police power. The invidious discrimination found in each case was in the classification of debtors to which the statutes applied. There was no basis for the distinctions inherent in the respective classifications.
Under the statute now under consideration the state for reasons of internal policy has by statute established the policy of allowing recovery of reasonable attorneys’ fees as part of the costs by successful claimants who are required to litigate small claims of this nature. It appears to be a reasonable incentive to the prompt payment of small but well-founded claims. It is a deterrent of groundless defenses. It is an incentive reasonably calculated to promote the public welfare by reducing the evils of certain injurious practices affecting the internal and business affairs in the state. In the present classification there is a reasonable basis for the distinctions inherent therein.
Accordingly we hold that K. S. A. 1971 Supp. 60-2006 is constitutionally permissible under the “equal protection and due process” clause of the United States Constitution.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Owsley, J.:
This is an action to foreclose a subcontractor’s mechanic’s lien. Judgment was entered in favor of the plaintiff. The defendant landowner appeals claiming the subcontractor’s lien was not filed within the statutory period of sixty days. (K. S. A. 60-1103 [repealed L. 1967, Ch. 325 (now K.S.A. 1971 Supp. 60-1103)].)
A brief statement of the facts follows.
In the year 1965, James Coleman, doing business as Coleman Equipment Company in Independence, Kansas, was a dealer for Behlen Buildings. On February 27, 1965, Coleman as contractor entered into a contract with defendant for the sale and construction of a Behlen Curvet Building on defendant’s land. In August of 1965, Coleman and the plaintiff entered into a subcontract by which plaintiff acting as subcontractor would construct a building slab and erect the Behlen Building. Coleman entered into a subcontract to purchase a prefabricated building from Behlen Manufacturing Company.
Plaintiff began erection of the building on September 21, 1965. On October 18, 1965, plaintiff completed erection of the building and on October 20, 1965, plaintiff billed Coleman in full for the erection of the building.
When plaintiff submitted his statement to Coleman, all work was completed except an obligation of subcontractor Behlen to provide fiber glass light panels. Fiber glass light panels were specified in the Behlen subcontract, but steel panels were installed in the building since proper fiber glass light panels were not received from the Behlen Manufacturing Company. On November 22 and 23, 1965, plaintiff-subcontractor returned to the job site with a set of fiber glass panels provided by Behlen Manufacturing Company, but the panels would not properly fit. Behlen’s engineers went to the job site to determine what action should be taken.
On December 14, 1965, the plaintiff-subcontractor submitted a statement to Behlen Manufacturing Company in the amount of $177.00 for work performed on October 13, 1965, and November 22 and 23, 1965, which work was done by plaintiff in attempting to install fiber glass panels. On December 27, 1965, Behlen Manufacturing Company issued a check in the sum of $177.00 to the plaintiff.
Behlen Manufacturing Company then sent to the job site a new set of panels which plaintiff installed on December 30, 1965. Additional work was done on the panels by the plaintiff on February 5, 1966, for which Behlen was again billed by plaintiff. This time Behlen paid plaintiff-subcontractor $169.00 for the work performed.
On February 28,1966, the plaintiff filed a subcontractor’s lien with the Clerk of the District Court of Montgomery County, Kansas. The lien did not mention any work done or charges made subsequent to October 20, 1965.
The trial court made the following findings of fact and conclusions of law:
“1. The work performed by Berthot Construction Company after October 20, 1965, was part of the original contract and its performance was necessary to complete the job.
“2. The defendant Coleman was not a general agent of the Behlen Manufacturing Company.
"3. The Behlen Manufacturing Company and the plaintiff, Berthot Construction Company did not enter into a separate contract for the work performed after October 20, 1965.
“A. Plaintiff subcontractor’s lien filed February 28, 1966 was filed within the statutory period.”
After considering a motion to amend the judgment, the trial court further stated:
“The defendant argues in his motion the existence of a new contract between Beblen Manufacturing Company and the Berthot Construction Company. The Court has found that no such contract existed and is of the opinion that the existence of such a contract would in no way affect the performance required under the original contractual arrangements between the Coleman-Stroble and Berthot Manufacturing Company. The satisfactory completion of the roof was part of the original contract. The defendant Stroble didn’t regard the contract as completed as he withheld and still holds $1200.00 of the original contract price. The work performed by Berthot Construction Company after October 20, 1965, was necessary to the completion of the original contract. The fact that Behlen Manufacturing Company paid Berthot Construction Company for the additional time, trouble and work they were required to perform because of the defective panels does not affect and is not deductible from the original contract price.”
The defendant does not argue that the findings of fact made by the trial court are not supported by the evidence. He first claims that the work was completed on October 20, 1965, and the work performed by the plaintiff thereafter did not extend the time of completion of the project. If the time of completion was not extended by the work of plaintiff after October 20, 1965, the lien was not filed in time.
The trial court found the work was not completed until the plaintiff installed the fiber glass panels on December 30, 1965, and pointed out the installation of the fiber glass panels was part of the original contract between the contractor and the defendant landowner. Fiber glass panels were required in the original specifications.
We have held that the subcontractor is bound by the contract between the contractor and the landowner. (Lang v. Adams, 71 Kan. 309, 80 Pac. 593; Eggleston v. White, 113 Kan. 325, 214 Pac. 623.) We have also held that trivial isolated orders cannot serve to extend the time within which to file a mechanics lien. (Star Lumber & Supply Co. v. Mills, 186 Kan. 204, 349 P. 2d 892.)
In Benner-Williams, Inc. v. Romine, 200 Kan. 483, 437 P. 2d 312, the contractor installed certain cabinets except the end splash for the cabinet top which was not installed until later since it was not available at the original installation time. The court held that the time for filing a mechanic’s lien was extended since the installation of the end splash was part of the original negotiations and stated the rule as follows:
. . The test, under K. S. A. 1967 Supp. 60-1101 as to the time when a piece of work is completed in order to preserve a lien, is whether the unfinished work was a part of the work necessary to be performed under the terms of the original contract to complete the job and comply in good faith with the requirements of the contract. (Citing cases.) The ‘end splash,’ for which no additional charge was made, was part of the original contract, and its installation was necessary to complete the job. It is unrefuted that the delay in installation arose because of the lack of material, rather than any bad faith on the part of the appellee.” (p. 487.)
Defendant argues the rule in Benner-Williams is not applicable because it involved a contractor, not a subcontractor. We have already pointed out that the subcontractor is bound by the contract between contractor and the landowner. Plaintiff’s contract with the contactor is subordinate to the original landowner-contactor agreement. (Lang v. Adams, supra.) It follows that since the fiber glass panels were required by the original contract plaintiff was obligated to install them. This is consistent with the fact defendant didn’t regard the contact completed in that he retained a portion of the original contract price. There being no showing of bad faith on the part of plaintiff, the completion of the original contract was extended to the time the fiber glass panels were installed. Thus, the time for filing the lien was likewise extended.
Defendant further claims the rule in Benner-Williams is not applicable in this case for other reasons. He argues that the plaintiff billed the contractor for the full contract price subsequent to October 20, 1965, and that the bill included only labor and material furnished to that date. He also argues that the plaintiff and Behlen, the other subcontractor, entered into a new and separate contract to install the fiber glass panels. Furthermore, Behlen paid plaintiff for the extra work under the separate contract.
After the building was erected and the steel panels were installed plaintiff performed according to his contract with Coleman. Although plaintiff was entitled to be paid the full contract price, he remained obligated to install the proper panels. Coleman was still obligated to the defendant to provide the fiber glass panels. Since plaintiff was bound by the contactor-landowner contract he was obligated, to install the fiber glass panels. The fact that this created more work for the plaintiff justified plaintiff to seek pay ment for the extra work from Behlen, who caused the extra work by not furnishing the fiber glass panels at the time the building was being erected.
Assuming a separate contract to perform additional work was made and that Behlen paid plaintiff under the contract, this does not eliminate plaintiffs obligation to install the fiber glass panels. Defendant cannot effectively argue that since plaintiff was paid for the extra work plaintiff was not under an obligation to perform the work regardless of the arranged payment. The work having been done by plaintiff as a fulfillment of his contractual obligation, the performance of the work extended the time for filing a lien under the statute.
Defendant further claims the trial court erred in striking from the record the testimony of Coleman that a separate contract was made between plaintiff and Behlen concerning the installation of the fiber glass panels. From what we have hereinbefore said, this testimony if admitted would not be material to the outcome of this litigation.
In reaching these conclusions we were aware of the rule of construction applied to mechanics’ liens as stated in Lumber Co. v. Douglas, 89 Kan. 308, 131 Pac. 563, where we said:
“. . . The mechanic’s lien, although unknown to the common law, is not to be given a narrow and strict construction. It is intended as an enlargement of the rights of those who furnish labor and material and who can not conveniently protect themselves in any other way. It is a general and remedial statute, and the rule that statutes in derogation of the common law shall be strictly construed does not apply to it. (Gen. Stat. 1909, §9850.) On the contrary, such statutes are to be liberally construed with a view of advancing the beneficent purposes which the legislature was seeking to accomplish by the enactment.” (p. 316.)
We affirm the trial court. | [
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Per Curiam:
The judgment is affirmed by an equally divided court.
Prager, J., not participating. | [
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The opinion of the court was delivered by
Harman, C.:
The court has considered the rearguments of counsel and the brief of amicus curiae and has concluded the original opinion of affirmance should be adhered to.
APPROVED BY THE COURT.
Fatzer, C. J., and Schroeder, J., dissent. | [
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ORDER REINSTATING APPEAL
Per Curiam:
This is an application to reinstate an appeal which was declared abandoned by the district court of Allen County pursuant to Rule No. 6 (p). The determination of abandonment was made unanimously by the judges of the Fourth Judicial District, sitting en banc. Because of this, and because our ruling on this application will affect all proceedings in this court, we deem it proper that we should briefly set forth the reasons for our order.
The issue presented is whether, when delivery of a necessary transcript is made by mail, such mode of delivery gives the appellant three additional days under K. S. A. 60-206 (e) in which to serve and file his designation of the contents of the record.
The procedural facts are undisputed. The State filed a timely notice of appeal from an order discharging the defendants in a criminal prosecution at the conclusion of the States case, and ordered a transcript within the time allowed by rule. On September 7, 1971, the reporter placed the completed transcript in the mail in Iola to the attorney general in Topeka, and filed his certificate to that effect.
On September 29, 1971, twenty-two days later, the state served and filed its designation of the contents of the proposed record.
The rule, No. 6(a), requires:
“. . . Within twenty (20) days after completion and delivery of the transcript to appellant, which shall be shown by the reporter’s certificate of delivery filed with the Court, the appellant shall then serve and file his designation of the contents of the record.”
The statute, K. S. A. 60-206 (e), provides:
“Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, three (3) days shall be added to the prescribed period.”
The court below approached the threshold question of the statute’s applicability by noting that our rules are intended to be complete in themselves, and that Rule No. 2 specifically refers to and incorporates those parts of the code of civil procedure found in K. S. A. 60-205, 60-210 and 60-211. Applying the doctrine of ex-pressio unius est exclusio alterius, the court found all other portions of the code inapplicable, concluding:
“We think the three day extension of time by reason of mailing, as provided in K. S. A. 60-206, may not be engrafted upon the Supreme Court rules except by that Court; that the purpose of the Reporters certificate of delivery is not only to establish his compliance with statute but also fix the commencement of the 20 day limitation period within which the appellant must next act; and that the 20 day period in this case commenced on September 7, 1971, and ended on September 27.” (Emphasis ours.)
The court went on to find that the neglect on the part of appellant’s counsel to make a timely request for an extension was not excusable — a question we find it unnecessary to consider.
For our part, we note first that under K. S. A. 60-205 (b)— which is specifically made applicable by Rule No. 2 — “service” may be made in two ways, by “delivering” or by “mailing” the matter to be served. On the other hand, Rule No. 6(a) speaks only of “delivery” of the transcript with no mention of “service.”
“Delivery” clearly connotes receipt by the consignee, as witness the statutory definition in 60-205 (b). Yet if this test is applied to mailed matter the time of delivery, and therefore the timeliness of the ensuing act, would always be open to debate — a result the legislature and this court have strenuously attempted to avoid. The legislative answer is its declaration in 60-205 (b) that service by mail is complete upon mailing, coupled with the allowance of three additional days. Our effort at certainty resulted in the 1967 amendment of the rule to require a reporter’s certificate as to the date of delivery.
A complete answer may perhaps be found in K. S. A. 60-206. Subsection (a), dealing generally with the computation of time and the effect of Saturdays, Sundays and holidays, provides:
“. . . When an act is to be performed within any prescribed time under any law of this state, or any rule or regulation lawfully promulgated thereunder, and the method for computing such time is not otherwise specifically provided, the method prescribed herein shall apply.” (Emphasis supplied.)
From this language alone it may be argued that all the relevant portions of 60-206 are applicable to our practice. Apart from the literal language, however, we think its applicability would have a salutary purpose and effect, for several reasons. First, in dealing with matters of time computation it renders certain what would otherwise be debatable; second, it makes our practice comport with that in the district court, with which most attorneys are presumably familiar; and third, it allows a modicum of additional and often necessary time to act where the document triggering the action is brought through the mail. While in some cases three days may be more than ample, we can take judicial notice that such period will in many instances be a wholly inadequate allowance for a piece of mail, posted late in the day, to reach its destination. Counsel faced with a deadline should not be unnecessarily penalized by that delay.
Dated: January 5, 1972.
It is our conclusion that K. S. A. 60-206 should be and is applicable here, and in other situations where its application would not contravene some express provision of our rules. That such applicability may have heretofore been unclear is regrettable, but the purpose of this order is to remedy that situation.
We do not intend by what we have said here to retreat in any way from the position taken in Crouch v. Marrs, 199 Kan. 387, 430 P. 2d 204, or what was there said about the need for orderliness in appellate practice. We do feel that allowing an additional three days where material is delivered by mail will not unduly slow the wheels of justice, and that the application of the other relevant provisions of K. S. A. 60-206 is likewise justifiable.
The result is that appellant’s designation was filed in time, and accordingly the appeal should be reinstated.
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The opinion of the court was delivered by
Fromme, J.:
Sherman L. Preston was convicted by a jury and sentenced as an habitual criminal for second degree burglary and larceny. The same appointed counsel represented him at a preliminary hearing and during the trial. No appeal proceedings were initiated.
On March 27, 1969, the defendant Preston pro se initiated post-conviction proceedings under K. S. A. 60-1507. The trial court, after examining the files and proceedings in the original case, summarily denied his motion to vacate the sentence. The court found the questions raised in the post-conviction motion related to trial issues previously disposed of at the trial. Preston appeals from that order.
This court is urged to reverse the lower court on the basis of three alleged trial errors.
During appellant’s trial a screw-driver and a table knife were admitted into evidence. These were found in appellant’s car when he was arrested. There was evidence that these may have been used during the burglary to open a file cabinet. Appellant granted permission to the officers to search his car, and those items were found. At the trial he claimed permission was involuntarily granted. He renews this claim in his motion.
The second claim of error is based upon the admission into evidence of statements made by appellant during interrogation. At the trial the voluntary nature of these statements was inquired into before the trial court allowed them to go to the jury.
The third claim of error is based upon a statement made by the prosecuting attorney during defendant’s closing argument. The prosecuting attorney lodged an objection to a portion of defendant’s closing argument and stated that defendant’s counsel was trying to inject prejudicial error into the trial of the case. The trial court sustained the objection and nothing further was said.
These three alleged errors relate to procedural matters at the trial. The post-conviction remedy (K. S. A. 60-1507) cannot ordinarily be used as a substitute for an appeal in raising alleged trial errors. (Hanes v. State, 196 Kan. 404, 411 P. 2d 643; Cipolla v. State, 207 Kan. 822, 486 P. 2d 1391; Rule No. 121 (c) (3) of the Supreme Court, 205 Kan. xlv.) If exceptional circumstances are shown which will excuse the failure to appeal then a movant may be permitted to raise errors affecting constitutional rights in post-conviction proceedings. (See Minor v. State, 199 Kan. 189, 428 P. 2d 760; Ware v. State, 198 Kan. 523, 426 P. 2d 78.)
The appellant neither alleges nor argues that exceptional circumstances excuse his failure to raise these questions in a direct appeal. The errors alleged are not of constitutional proportions. They should not be examined in post-conviction proceedings.
The appellant does contend that his constitutional rights were not protected in the trial of the case because he was not advised of his right to appeal. We note that appellant was sentenced as an habitual criminal and that he had the services of court appointed counsel at his trial. It appears unlikely that he did not know of his right to appeal. However, such an uncorroborated statement by the appellant does not present a justiciable issue which would require the district court to appoint counsel or grant an evidentiary hearing on a post-conviction motion. (Call v. State, 195 Kan. 688, 691, 408 P. 2d 668, cert. den. 384 U. S. 957, 16 L. Ed. 2d 552, 86 S. Ct. 1581; Ware v. State, supra.)
Appellant’s final contention is that this court should recognize that a convicted felon has an absolute constitutional right to appointment of counsel to assist in evaluating the record of trial and in preparing the post-conviction motion.
The federal cases cited in support of this contention relate to appointment of counsel at critical stages of the conviction proceedings. The cases do not support the contention of appellant. The conviction proceedings end with sentencing and commitment. The evaluation of the trial record and preparation of a post-conviction motion are no part of the conviction proceedings.
This court for many years has held that a trial court is not required to appoint counsel for a movant in post-conviction proceedings in the trial court unless the motion on file presents a substantial question of law or a triable issue of fact. (State v. Burnett, 194 Kan. 645, 400 P. 2d 971; Weigel v. State, 207 Kan. 614, 485 P. 2d 1347; Rule No. 121 (i) of the Supreme Court, 205 Kan. xlv.) We are not impressed with appellant’s arguments urging this court to overrule our case law in this area. We decline to do so.
The appellant failed in his post-conviction motion to present any substantial question of law or triable issue of fact. Even the alleged trial errors, which are not cognizable in post-conviction proceedings, do not appear substantial in nature.
The order of the trial court denying post-conviction relief is affirmed. | [
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against Tommy L. Green, of Topeka, an attorney admitted to the practice of law in Kansas. The formal complaint filed against the respondent alleged violations of Kansas Rules of Professional Conduct (KRPC) including KRPC 1.1 (2006 Kan. Ct. R. Annot. 358) (competence), KRPC 1.2(a) (2006 Kan. Ct. R. Annot. 367) (representation), KRPC 1.3 (2006 Kan. Ct. R. Annot. 371) (diligence), KRPC 1.4(a) (2006 Kan. Ct. R. Annot. 386) (communication), KRPC 1.5(a) (2006 Kan. Ct. R. Annot. 401) (fees), KRPC 1.15(a) and (b) (2006 Kan. Ct. R. Annot. 435) (safekeeping property), KRPC 1.16(a) and (d) (2006 Kan. Ct. R. Annot. 448) (representation), KRPC 3.2 (2006 Kan. Ct. R. Annot. 462) (expediting litigation), KRPC 8.1(b) (2006 Kan. Ct. R. Annot. 505) (bar admission and disciplinaiy matters), KRPC 8.4(b) (2006 Kan. Ct. R. Annot. 510) (misconduct), and Kansas Supreme Court Rule 207(b) (2006 Kan. Ct. R. Annot. 268) (duties of the bar).
A hearing was held before a panel of the Kansas Board for Discipline of Attorneys. Upon the conclusion of the hearing, the panel made the following findings of fact and conclusions of law together with its recommendations to this court:
“FINDINGS OF FACT
“The Hearing Panel finds the following facts, by clear and convincing evidence:
“1. Tommy L. Green (hereinafter ‘the Respondent’) is an attorney at law. . . . His last registration address with the Clerk of the Appellate Courts of Kansas is . . . Topeka, Kansas. . . . The Respondent was admitted to the practice of law in the state of Kansas on April 10,1978.
“DA9294 — Complaint filed by Janet Campbell
“2. In January 2004, Janet Campbell retained the Respondent to represent her in conjunction with a wrongful termination and a defamation case. Ms. Campbell provided the Respondent with the original copy of related documents.
“3. On January 20, 2004, Ms. Campbell paid the Respondent $1,500.00 in advance for attorney fees. While Ms. Campbell and die Respondent did not enter into a written fee agreement, the Respondent orally informed Ms. Campbell that he charged $150.00 per hour.
“4. On January 22, 2004, the Respondent prepared and sent a demand letter to Ms. Campbell’s former employer. The Respondent provided a copy of the letter to Ms. Campbell.
“5. On February 20, 2004, die Respondent received a letter from an attorney representing Ms. Campbell’s former employer. The Respondent did not forward a copy of the letter to Ms. Campbell nor did he explain the contents of the letter to Ms. Campbell.
“6. In March and April 2004, Ms. Campbell called the Respondent repeatedly. Many of the calls went unanswered. On one occasion, the Respondent informed Ms. Campbell drat he had been exchanging telephone messages with her former employer’s insurance company but that he had not been able to make contact.
“7. In April 2004, on another occasion, the Respondent told Ms. Campbell that he had been ill and he encouraged her to keep calling him to get information about tire case.
“8. Following the telephone conversation she had with the Respondent in April 2004, Ms. Campbell made numerous telephone calls to the Respondent. She called him approximately once a week, leaving messages for the Respondent to return the call. The Respondent did not return the telephone calls.
“9. In early June 2004, Ms. Campbell left a message for the Respondent, informing him that she wished to terminate his services as her attorney and asked him to deduct the fee for tire letter he had written and refund the balance of the $1,500.00 to her. Additionally, Ms. Campbell left a number of messages for the Respondent asking him to return the original documentation.
“10. Twice, Ms. Campbell’s husband stopped by the Respondent’s office, without an appointment, in an attempt to retrieve the original documentation. Unfortunately, no one was in the Respondent’s office on those occasions.
“11. On August 8,2004, Ms. Campbell sent tire Respondent a letter and again advised the Respondent that he was terminated. In tire letter, she repeated her demand for tire return of the unearned fees and original documentation.
“12. Also on August 8, 2004, Ms. Campbell filed a complaint with the Disciplinary Administrator’s office.
“13. During the disciplinary investigation, the Respondent acknowledged that he had a received the February 20, 2004, letter from an attorney representing Ms. Campbell’s former employer. The Respondent also acknowledged that he did not forward a copy of the letter to Ms. Campbell nor did he explain the contents of the letter to her.
‘T4. On October 27, 2004, the Respondent met with an investigator regarding Ms. Campbell's complaint. The Respondent promised the investigator that he would send a letter to Ms. Campbell apologizing for not returning the file to her. He also assured the investigator that he would send an accounting of his time to Ms. Campbell and reimburse her for the unearned portion of the fees paid. Finally, the Respondent agreed to send a copy of the documents that he provided to Ms. Campbell to the investigator.
“15. In November 2004, Ms. Campbell contacted the Disciplinary Administrator’s office because the Respondent had not forwarded the original documents nor the unearned fees to her. The Disciplinary Administrator contacted the Respondent regarding this matter. On November 18, 2004, the Respondent finally returned the file.
“16. Eventually, tire Respondent returned $500.00 to Ms. Campbell. However, the Respondent never accounted for his time. Ms. Campbell filed a claim with the Client Protection Fund and was awarded $1,000.00.
“DA9555 — Complaint filed by Benoit M.J. Swinnen
“17. On December 10, 2004, Bruce Harrington filed a petition in behalf of his client, Kerry Gasper, in the District Court of Shawnee County, Kansas. In the petition, Mr. Gasper sought to collect on a promissory note executed by John Sims. Mr. Sims retained the Respondent to represent him in conjunction with the suit filed by Mr. Gasper. The Respondent, however, did not enter his appearance in the pending case.
“18. The Respondent failed to file an answer or counterclaim in behalf of Mr. Sims in response to Mr. Gasper’s petition.
“19. Thereafter, on January 21, 2005, the Court entered default judgment in the amount of $15,000.00 against Mr. Sims. Thereafter, Mr. Harrington filed a number of garnishment requests [as] to Mr. Sims.
“20. On April 29, 2005, Mr. Gasper filed a request for garnishment as to the Sims-Kemper Corporation, Mr. Sims’ corporation and employer. In addition to representing Mr. Sims, the Respondent also represented the Sims-Kemper Corporation.
“21. The Respondent failed to answer the request for garnishment in behalf of the Sims-Kemper Corporation. On April 29, 2005, the Court entered a garnishment order as to the Sims-Kemper Corporation. Kaw Valley State Bank and Trust Company paid $3,934.93 into the Court as a result of the garnishment order.
“22. After the Court entered the garnishment order, Mr. Sims retained Benoit Swinnen to represent Sims-Kemper Corporation. Mr. Swinnen resolved the matter.
“23. Even though the Respondent had represented tire Sims-Kemper Corporation for an extended period of time, the Respondent failed to keep the cor porate filings with the Kansas Secretary of State current. In fact, the Sims-Kemper Corporation had not filed the appropriate documentation since 1999.
“24. On May 16,2005, Mr. Swinnen filed a complaint against the Respondent with the Disciplinary Administrator’s office. The Respondent failed to cooperate in the investigation of tire complaint.
“DA9582 — Complaint filed by [Sue Palenske]
“[25], Sue Palenske retained the Respondent to represent her in an action against her former employer, Westar Energy. On May 16, 2002, Ms. Palenske filed a complaint with the Kansas Human Rights Commission (KHRC) alleging discrimination based upon sex and disability. In addition, Ms. Palenske also alleged that Westar retaliated against her. Ms. Palenske filed a similar complaint with the Equal Employment Opportunity Commission (EEOC).
“26. On March 27, 2003, the EEOC issued a notice of right to sue letter regarding Ms Palenske’s claims under Title VII and the American with Disabilities Act (ADA). The EEOC instructed Ms. Palenske that she had 90 days to file suit after she received the notice.
“27. On June 19, 2003, the Respondent filed a complaint in behalf of Ms. Palenske against Westar Energy in the United States District Court for the District of Kansas, alleging violations of Title VII, the ADA, the Family Medical Leave Act (FMLA), the Employment Retirement Income Security Act (ERISA), and the Kansas Act Against Discrimination. Additionally, the Respondent included a common law claim that Ms. Palenske was wrongfully terminated. The Respondent failed to effect service on Westar Energy.
“28. On July 15, 2004, the Court issued an order to show cause to the Respondent for failure to effect service. The Respondent failed to respond. Accordingly, on September 15, 2004, die Court dismissed the case for a lack of prosecution.
“29. Thereafter, on December 14, 2004, the Respondent filed a second complaint against Westar Energy in behalf of Ms. Palenske. The second complaint was identical to the first complaint. On March 18, 2005, the Respondent had a copy of the second complaint hand-delivered to Westar Energy and left at the front desk.
“30. On March 29, 2005, Westar Energy sent the Respondent a letter detailing why Ms. Palenske’s claims lack merit and violated Fed. R. Civ. Proc. 11. In the letter, Westar Energy stated that Ms. Palenske’s federal claims asserted in the second complaint were barred by the applicable statutes of limitation and that the state law claims were not properly brought in federal court. The Respondent did not respond to the letter.
“31. On April 21, 2005, Westar Energy filed a motion to dismiss and motion for sanctions. The Respondent failed to respond to the motions.
“32. On April 29, 2005, the court issued an order setting a scheduling conference which required the parties to conduct a meeting pursuant to Fed. R. Civ. Proc. 26(f) no later than May 6, 2005. Attorneys for Westar Energy attempted several times to contact the Respondent by telephone, electronic mail, and by regular mail. The Respondent did not respond to the attorneys for Westar Energy.
“33. On May 17, 2005, the Respondent contacted Mindy McPheeters, an attorney for Westar Energy and informed her that he approved the Fed. R. Civ. Proc. 26(f) report that Westar Energy had prepared. During that conversation, the Respondent made a request for an extension of time to file his responses to the motion to dismiss and the motion for sanctions. Westar Energy did not agree to the extension of time because the time for filing had already passed at the time he made his request. The Respondent informed Ms. McPheeters that he would be filing a motion for leave to file the responses out-of-time shortly. The Respondent did not file a motion to leave to file the responses out-of-time.
“34. On May 27, 2005, the Court conducted a scheduling conference by telephone. Judge O’Hara stayed discovery pending a ruling on Westar Energy’s motions. The Respondent informed the Court that he had not filed his responses to tire motions because of computer problems and because he had been busy on other matters. The Respondent informed the Court that he would be filing a motion for leave to file his responses out-of-time ‘within the next week.’ The Respondent did not file a motion for leave to file the responses out-of-time.
“35. On October 5, 2005, the court dismissed Ms. Palenske’s case without prejudice. In the order, the Court noted that the Respondent had not filed a response to the defendant’s motion to dismiss.
“36. On October 7, 2005, the Court issued an order to show cause to the Respondent to show why sanctions should not be imposed. The Respondent did not respond to the order to show cause.
“37. On November 7, 2005, the Court found that the Respondent violated Fed. R. Civ. Proc. 11(b) and that counsel for Westar Energy was entitled to reasonable attorney’s fees charged to prepare the motion to dismiss and motion for sanctions. On January 4,2006, the Court approved counsel for Westar Energy’s request for $8,596.13 in attorney fees. The Court order did not specify whether the Respondent was to pay the sanction or whether Ms. Palenske was to pay the sanction.
“DA9583 — Complaint filed by Kenneth D. Jones
“38. On June 10, 2005, Kenneth D. Jones filed a complaint against the Respondent. The Respondent failed to cooperate in the investigation of the complaint.
“DA9736 — Complaint filed by Dia Fox
“39. On April 20, 2005, Steven Weir, a Topeka attorney, filed suit against Dia Fox in the District Court of Shawnee County, Kansas, claiming that Ms. Fox owed him money.
“40. On May 26, 2005, Mr. Weir obtained service of process on Ms. Fox. Ms. Fox retained the Respondent to represent her in the cause of action. On June 17, 2005, the Respondent filed an answer in behalf of Ms. Fox.
“41. On June 22, 2005, Mr. Weir served Ms. Fox with a request for admissions. The Respondent did not respond to the request for admissions.
“42. On July 12, 2005, Mr. Weir filed a motion for summary judgment. The Respondent did not respond to the motion for summary judgment.
“43. On August 2, 2005, the Court held a pretrial conference. At tire pretrial conference, the Respondent first told Ms. Fox that Mr. Weir filed a motion for summary judgment.
“44. On August 3,2005, the Respondent requested additional time to respond to Mr. Weir’s motion for summary judgment. However, the Respondent did not request additional time to respond to Mr. Weir’s request for admissions. The Court granted tire Respondent’s request for additional time to respond to Mr. Weir’s motion for summary judgment, allowing the Respondent until August 19, 2005, to respond. The Respondent did not respond to Mr. Weir’s motion for summary judgment by August 19, 2005.
“45. On August 24, 2005, the Court granted Mr. Weir’s motion for summary judgment.
“46. On August 25, 2005, the Respondent filed a response to Mr. Weir’s motion for summary judgment and a response to the request for admissions. Also on August 25, 2005, Ms. Fox spoke with the Respondent. The Respondent did not advise her drat judgment had been entered against her.
“47. On September 21, 2005, Mr. Weir sought an order of garnishment.
“48. Ms. Fox has consistently maintained that there was no merit to the contract claim made against her. After Mr. Weir began garnishment proceedings, Ms. Fox terminated the Respondent’s representation. Thereafter, she obtained new counsel. To date, Ms. Fox’s new counsel has tried, unsuccessfully, to set aside the judgment entered against her.
“DA9739 — Complaint filed by Jason Kahrs
“49. In March 2005, Jason Kahrs retained the Respondent to represent him regarding overtime and tax issues with his former employer. The Respondent suggested a contingent fee agreement, whereby the Respondent would receive 50% of any recovery. The Respondent informed Mr. Kahrs that he would forward a written fee agreement. However, the Respondent did not forward a written fee agreement.
“50. At the time he retained the Respondent, Mr. Kahrs provided the Respondent with necessary papers including tax documents, pay stubs, and documents regarding hours worked by Mr. Kahrs. The Respondent assured Mr. Kahrs that he would be in contact when he had information regarding his case.
“51. After Mr. Kahrs provided the documents to the Respondent, the Respondent failed to communicate with Mr. Kahrs. Mr. Kahrs called the Respondent approximately 40 times. The Respondent failed to return any of the calls. Eventually, the Respondent’s telephone was disconnected.
“52. When the Respondent failed to respond to his telephone calls, Mr. Kahrs terminated die Respondent’s representation, retained new counsel, and requested that the Respondent forward the documents, previously provided, to his new counsel.
“DA9815 — Complaint filed by Terry Schattilly
“53. Terry Schattilly retained the Respondent to represent her in an employment dispute with her employer, Burlington Northern Santa Fe Railway (BNSF). The Respondent informed Ms. Schattilly that he would charge her $150.00 per hour for the representation. Ms. Schattilly paid tire Respondent a total of $2,600.00.
“54. In November 2004, the Respondent filed a case in the United States District Court for the District of Kansas, in behalf of Ms. Schattilly against BNSF, seeking damages under the FMLA.
“55. On March 26, 2005, Ms. Schattilly notified the Respondent that she was moving to Fort Worth, Texas, and she provided the Respondent with her new contact information.
“56. Thereafter, Ms. Schattilly repeatedly called the Respondent regarding the representation. However, the Respondent did not return the telephone calls. In fact, Ms. Schattilly has not spoken with the Respondent since the telephone call on March 26, 2005.
“57. On August 10, 2005, the Respondent and counsel for BNSF stipulated to the dismissal of Ms. Schattilly’s case without prejudice. The Respondent, however, did not have authorization from Ms. Schattilly to stipulate to the dismissal of the case. Additionally, the Respondent did not inform Ms. Schattilly that he had stipulated to the dismissal of the case. Ms. Schattilly learned of tire dismissal by calling die Clerk of the United States District Court for the District of Kansas.
“58. On January 28, 2006, Ms. Schattilly notified the Respondent in writing that she was terminating his representation. In the letter, Ms. Schattilly complained of the lack of communication, requested an accounting showing how much of the fee was earned, requested a return of any unearned fees, and requested drat the Respondent return her file to her. The Respondent did not provide Ms. Schattilly witii an accounting, he did not return any unearned fees, and he did not return Ms. Schattilly s file to her as requested.
“Impairments
“59. The Respondent is an alcoholic and a drug addict.
“60. The Respondent began using cocaine in approximately 1981. The Respondent used cocaine in social settings on a periodic basis. The Respondent continued to use cocaine and later, crack cocaine, from 1981 to October 2005. The frequency of use varied over time.
“61. From 1990 through 1998, the Respondent worked for KP&L, later known as Western Resources. KP&L subjected its employees to random urinanalysis. The Respondent was able to control his usage of crack cocaine and would use the drug only when he knew he was going to be away from the office for a period of time and would not be subjected to a drug test.
“62. After leaving Western Resources in November 1998, the Respondent was unable to control the amount of crack cocaine he used. For approximately one year, the Respondent did little other than sit in his basement and smoke crack cocaine.
“63. In May 1999, the Respondent attempted to discontinue using crack cocaine. The Respondent was able to control his use of crack cocaine for [a] short time. In August 1999, the Respondent began using crack cocaine more and more.
“64. In November 2000, the Respondent was again better able to control the amount of crack cocaine he used. He could go for period[s] of 90 or 120 days without using crack cocaine.
“65. In May 2001, the Respondent went to drug and alcohol treatment. The Respondent attended a day program from 7:30 a.m. to 5:30 p.m., five days aweek. The Respondent continued to ‘work his program’ until April 2002.
“66. The Respondent resumed using crack cocaine in 2002 and continued until he went to treatment again in the summer of2003. In 2003, the Respondent went to treatment at Sims-Kemper in Topeka. The Respondent’s treatment at Sims-Kemper was again, outpatient treatment.
“67. During his treatment at Sims-Kemper and for a period of time following treatment, the Respondent used crack cocaine ‘socially.’
“68. By September 2004, the Respondent was using crack cocaine on a very frequent basis.’ In November 2004, the Respondent realized that his use was again out of control. Because he had completed two drug treatment programs, the Respondent knew what he needed to do. Beginning November 23, 2004, and continuing through February or March 2005, the Respondent attended an AA meeting at least once a day.
“69. Beginning in March 2005, the Respondent used crack cocaine every day. By August 2005, the Respondent did nothing other dran smoke crack cocaine. The Respondent continued the constant use of crack cocaine through September 2005.
“70. On September 30, 2005, Don Zemites went to the Respondent’s home and knocked on his door. The Respondent did not answer his door. Mr. Zemites crawled through a door on the Respondent’s patio and knocked on the Respondent’s bedroom window. The Respondent did not answer the knocking. Mr. Zemites also left a telephone message for the Respondent. After Mr. Zemites left, the Respondent called Mr. Zemites back. The Respondent agreed to be at Mr. Zemites’ office the following Monday to go to inpatient drug treatment.
“71. On October 2, 2005, the night before he went to treatment, an acquaintance came by the Respondent’s home. The Respondent and his acquaintance smoked crack cocaine for a period of six or seven hours.
"72. On October 3, 2005, tire Respondent went to Mr. Zemites’ office and Mr. Zemites took the Respondent to an inpatient treatment facility in Kansas City. Since October 3, 2005, the Respondent has not used crack cocaine.
“73. According to the Respondent, he suffers from depression and attention deficient disorder.
“Disciplinary Proceedings
“74. On March 2, 2006, tire Disciplinary Administrator filed a Formal Complaint and Notice of Hearing in DA9294, DA9555, DA9582, and DA9583. The hearing was scheduled for April 18, 2005. Shortly before the scheduled hearing, the Respondent retained counsel and the hearing was continued.
“75. On June 26, 2006, the Respondent filed a probation plan. The Respondent put his plan into effect at that time.
“76. On July 26, 2006, the Disciplinary Administrator amended the Formal Complaint and included DA9736, DA9739, and DA9815. Thereafter, the Respondent filed an Answer stipulating to tire facts and rule violations alleged in the Amended Formal Complaint.
“CONCLUSIONS OF LAW
“1. Based upon the findings of fact and the Respondent’s stipulation, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.1, KRPC 1.2, KRPC 1.3, KRPC 1.4, KRPC 1.5, KRPC 1.15, KRPC 1.16, KRPC 3.2, KRPC 8.1, KRPC 8.4, and Kan. Sup. Ct. R. 207, as detailed below.
“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.’ KRPC 1.1. The Respondent failed to competently represent Ms. Campbell when he failed to use the thoroughness and preparation necessary to complete the representation. The Respondent took no action when he received a letter from an attorney representing Ms. Campbell’s former employer. The Respondent also failed to competently represent Ms. Palenske. The Respondent failed to competently represent Ms. Palenske when he included allegations in the petition that had not been in the claim, when he failed to effect service on Westar Energy after filing the first petition, when he failed to respond to orders to show cause, and when he failed to respond to a motion to dismiss and a motion for sanctions. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.1.
“3. KRPC 1.2(a) provides:
‘A lawyer shall abide by a client’s decisions concerning the lawful objectives of representation, subject to paragraphs (c), (d), and (e), and shall consult with the client as to the means which the lawyer shall choose to pursue. A lawyer shall abide by a client’s decision whether to accept an offer of settlement of a matter.’
The Respondent violated KRPC 1.2(a) when he stipulated to the dismissal of Ms. Schattflly’s case without her permission. The Hearing Panel concludes that the Respondent violated 1.2(a).
“4. 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. Campbell, Mr. Sims, Ms. Palenske, Ms. Fox, Mr. Kahrs, and Ms. Schattilly. Because the Respondent failed to act with reasonable diligence and promptness in representing Ms. Campbell, Mr. Sims, Ms. Palenske, Ms. Fox, Mr. Kahrs, and Ms. Schattilly, the Hearing Panel concludes that the Respondent violated KRPC 1.3.
“5. KRPC 1.4(a) provides that ‘[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply witli reasonable requests for information.’ In this case, the Respondent violated KRPC 1.4(a) when he failed to keep Ms. Campbell, Mr. Sims, Ms. Fox, Mr. Kahrs, and Ms. Schattilly informed regarding their representations. Each of these clients attempted, on numerous occasions, to contact the Respondent regarding their representation. The Respondent repeatedly failed to return telephone calls and failed to respond to letters. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.4(a).
“6. ‘A lawyer’s fee shall be reasonable.’ KRPC 1.5(a). Ms. Schattilly paid the Respondent $2,600 to represent her in an action against BNSF. The only work that tire Respondent did for Ms. Schattilly was to file the complaint in the United States District Court for die District of Kansas. After filing suit, the Respondent took no further action in Ms. Schattilly’s behalf. Therefore, the Hearing Panel concludes that the Respondent’s fee was unreasonable and in violation of KRPC 1.5(a).
“7. Attorneys must safeguard client’s property, as follows:
‘A lawyer shall hold property of clients or drird persons that is in a lawyer’s possession in connection widi a representation separate from the lawyer’s own property. Funds shall be kept in a separate account maintained in the state of Kansas. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.’ KRPC 1.15(a).
Pursuant to KRPC 1.15(a), the Respondent should have deposited the advance fees paid by Ms. Campbell and Ms. Schattilly into his attorney trust account. The Respondent did not deposit and maintain tire advance fees in his attorney trust account, rather, the Respondent took the advance fees paid by Ms. Campbell and Ms. Schattilly and converted them to his personal use. Thus, the Respondent violated KRPC 1.15(a) when he failed to maintain Ms. Campbell’s advance fee and Ms. Schattilly’s advance fee in his trust account until the fees were earned. As such, the Hearing Panel concludes that the Respondent violated KRPC 1.15(a).
“8. Upon request by a client, a lawyer ‘shall promptly render a full accounting.’ KRPC 1.15(b). Ms. Schattilly requested that the Respondent provide an accounting of the fee. Additionally, Ms. Schattilly requested that the Respondent return the unearned fees. The Respondent never provided Ms. Schattilly or the Hearing Panel with an accounting of tire fee. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.15(b).
“9. KRPC 1.16(a) prohibits an attorney from representing a client when ‘the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.’ At the time the Respondent represented Ms. Fox, Mr. Kahrs, and Ms. Schattilly, he was using crack cocaine on a very frequent basis and his use of crack cocaine impaired his ability to represent his clients. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.16(a).
“10. KRPC 1.16(d) provides:
‘Upon termination of representation, a lawyer shall taire 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.’
The Respondent violated KRPC 1.16(d) when he failed to return Ms. Campbell’s, Mr. Kahrs’, and Ms. Schattilly’s documentation. The Hearing Panel concludes that, accordingly, the Respondent violated KRPC 1.16(d).
“11. An attorney violates KRPC 3.2 if he fails to make reasonable efforts to expedite litigation consistent with the interests of his client. In this case, the Respondent failed to expedite Gasper v. Sims, the Respondent failed to expedite Ms. Palenske’s cases, and tire Respondent failed to expedite the litigation filed by Mr. Weir against Ms. Fox. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 3.2.
“12. ‘It is professional misconduct for a lawyer to . . . commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.’ KRPC 8.4(b). In this case, the Respondent admitted he possessed cocaine and crack cocaine repeatedly for a period spanning 24 years. Possession of cocaine and possession of crack cocaine are felony offenses. Accordingly, the Hearing Panel concludes that the Respondent committed criminal acts and those criminal acts reflect directly on the Respondent’s fitness as a lawyer, in violation of KRPC 8.4(b).
“13. Lawyer must cooperate in disciplinary investigations. KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b) provide the requirement in this regard. ‘[A] lawyer in connection with a . . . disciplinary matter, shall not: . . . knowingly fail to respond to a lawful demand for information from [a] . . . disciplinary authority, . . .’ KRPC 8.1(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.’ Kan. Sup. Ct. R. 207(b).
The Respondent knew that he was required to cooperate in the disciplinary investigations. The Respondent failed to do so in regarding Mr. Swinnen’s complaint and Mr. Jones’ complaint. Because the Respondent knowingly failed to cooperate in the disciplinary investigations, the Hearing Panel concludes that the Respondent violated KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b).
“AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS
“In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duty to his client to provide competent and diligent representation, to provide adequate communication, and to safeguard property. Also, the Respondent violated his duty to the legal system to expedite litigation. Further, the Respondent violated his duty to the legal profession to cooperate in disciplinary investigations and maintain personal integrity. Finally, tire Respondent violated his duty to the legal system by participating repeatedly and extensively in illegal activity, i.e., purchasing and using crack cocaine.
“Mental State. The Respondent knowingly violated his duties.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual harm to his clients, to the legal system, and to tire legal profession.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors drat may justify an increase in tire degree of discipline to be imposed. In reaching its recommendation for discipline, dre Hearing Panel, in this case, found tire following aggravating factors present:
“A Pattern of Misconduct. Included in this case are seven complaints. A number of the complaints involve similar misconduct. Accordingly, the Respondent engaged in a pattern of misconduct.
“Multiple Offenses. The Respondent violated KRPC 1.1, KRPC 1.2, KRPC 1.3, KRPC 1.4, KRPC 1.5, KRPC 1.15, KRPC 1.16, KRPC 3.2, KRPC 8.1, KRPC 8.4, and Kan. Sup. Ct. R. 207. As such, dre Respondent committed multiple offenses.
“Vulnerability of Victim. The Respondent’s clients were vulnerable to the Respondent’s misconduct.
“Substantial Experience in dre Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1978. At tire time the Respondent engaged in misconduct affecting clients, the Respondent had been practicing law for more than twenty years. Accordingly, the Hearing Panel concludes that the Respondent had substantial experience in dre practice of law at the time he engaged in dre misconduct.
“Illegal Conduct, Including drat Involving the Use of Controlled Substances. The Respondent testified that he possessed and used cocaine and crack cocaine beginning in 1981 and continuing drrough September 2005. The possession of cocaine and crack cocaine is a felony offense.
“Mitigating circumstances are any considerations or factors tirat may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in tiris case, found the following mitigating circumstances present:
“Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined.
“Personal or Emotional Problems if Such Misfortunes have Contributed to a Violation of the Kansas Rules of Professional Conduct. The Respondent testified that he suffers from depression and attention deficit disorder. The Hearing Panel concludes that the Respondent’s mental health status may have contributed to the violations.
“Remorse. At the hearing on the Formal Complaint, the Respondent expressed genuine remorse.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘Suspension is generally appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client.’ Standard 4.12.
‘Suspension is generally appropriate when:
(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or
(b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.’ Standard 4.42.
‘Suspension is generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer’s fitness to practice.’ Standard 5.12.
“RECOMMENDATION
“The Deputy Disciplinary Administrator recommended that the Respondent be indefinitely suspended. The Respondent recommended that he be placed on probation pursuant to his plan put into effect months before the hearing.
“In 2004, the Kansas Supreme Court adopted a rule which dictates the procedure to follow when a Respondent requests probation:
‘(g) Requirements of Probation
(1) If the Respondent intends to request that the Respondent be placed on probation for violating the Kansas Rules of Professional Conduct or the Kansas Supreme Court Rules, the Respondent shall provide each member of the Hearing Panel and the Disciplinary Administrator with a workable, substantial, and detailed plan of probation at least ten days prior to the hearing on the Formal Complaint. The plan of probation must contain adequate safeguards that will protect the public and ensure the Respondent’s full compliance with the disciplinary rules and orders of the Supreme Court.
(2) If the Respondent provides each member of the Hearing Panel and the Disciplinary Administrator with a plan of probation, the Respondent shall immediately and prior to the hearing on the Formal Complaint put the plan of probation into effect by complying with each of the terms and conditions of the probation plan.
(3) The Hearing Panel shall not recommend that tire Respondent be placed on probation unless:
(i) the Respondent develops a workable, substantial, and detailed plan of probation and provides a copy of the proposed plan of probation to the Disciplinary Administrator and each member of tire Hearing Panel at least ten days prior to the hearing on the Formal Complaint;
(ii) the Respondent puts the proposed plan of probation into effect prior to tire hearing on the Formal Complaint by complying with each of the terms and conditions of the probation plan;
(in) the misconduct can be corrected by probation; and
(iv) placing the Respondent on probation is in the best interests of the legal profession and the citizens of the State of Kansas.’ Kan. Sup. Ct. R. 211(g).
The Hearing Panel has carefully reviewed tire Respondent’s plan of probation. The Hearing Panel would like to express its sincere congratulations to the Respondent in maintaining his sobriety for a period now exceeding one year. However, it is the opinion of the Hearing Panel that probation is not appropriate in this case. First, the Respondent’s plan of probation is not workable, substantial, detailed. The safeguards suggested in tire plan [do] not appear to be sufficient to protect the public from tire potential for relapse which has recurred repeatedly in tire past in the Respondent’s history of drug and alcohol abuse. Additionally, the Hearing Panel does not conclude that the Respondent’s misconduct can be corrected by probation at this time. In light of the Respondent’s history of relapse, sufficient time has not passed since the Respondent obtained sobriety. Moreover, no workable plan for restitution was proposed. Finally, the Hearing Panel concludes that it is not in the best interests of the legal profession and the citizens of Kansas to place the Respondent on probation, first and foremost because the Respondent’s repeated illegal conduct in drug use and purchases cannot be adequately disciplined by mere probation.
“Based upon the findings of fact, conclusions of law, and tire Standards listed above, the Hearing Panel unanimously recommends that the Respondent be indefinitely suspended from the practice of law in the state of Kansas.”
The respondent filed no exceptions to the panel’s final hearing report. The court, having considered the final hearing report, accepts and adopts the findings of fact and conclusions of law of the panel. The findings of the panel establish by clear and convincing evidence that the respondent violated KRPC 1.1, KRPC 1.2, KRPC 1.3, KRPC 1.4, KRPC 1.5, KRPC 1.15, KRPC 1.16, KRPC 3.2, KRPC 8.1, KRPC 8.4, and Kansas Supreme Court Rule 207.
Respondent acknowledged the above violations and expressed sincere remorse for such violations. In addition, respondent has outlined before this court his great efforts to permanently re-establish a life of sobriety. We acknowledge those efforts and encourage the respondent to continue with his many activities relating to those efforts. At the same time, considering the oral presentation of the Disciplinaiy Administrator, the circumspect recommendations of the panel, the oral presentations of counsel for the respondent and respondent, the court concludes that the best interest of the public and the respondent support the panel’s recommendation for indefinite suspension. We adopt those reasons set forth by the panel in arriving at its recommendation of indefinite suspension to tins court.
Both respondent and his counsel acknowledged that the plan of probation submitted to this court by respondent is not adequate to protect the interest of the public in this case. Counsel and respondent request that this court grant respondent additional time to submit a more detailed plan which may address all of the concerns of this court. In their presentations, a number of additional conditions were suggested that are presently being carried out by the respondent. Respondent has experienced success with his sobriety since October 2005. As indicated above, we laud respondent’s successful efforts, but we are not convinced that the additional conditions of probation suggested by respondent are capable of being monitored unless undertaken as a full time project. We are further convinced that the panel’s recommendation is appropriate in respondent’s case. We therefore deny respondent’s request for additional time to submit a new plan of probation and impose the discipline recommended.
It Is Therefore Ordered that respondent, Tommy L. Green, be and he is hereby indefinitely suspended from the practice of law in the state of Kansas, effective on the date of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2006 Kan. Ct. R. Annot. 243).
It Is Further Ordered that respondent shall comply with Supreme Court Rule 218 (2006 Kan. Ct. R. Annot. 314), and in the event respondent would seek reinstatement, he shall comply with Supreme Court Rule 219 (2006 Kan. Ct. R. Annot. 327).
It Is Further Ordered that this opinion be published in the official Kansas Reports and that the costs herein be assessed to respondent.
Luckert, J., not participating.
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Per Curiam:
This case raises the question of whether the Kansas Consumer Protection Act (KCPA), K.S.A. 50-623 et seq., applies to a physician s professional conduct in providing treatment to a patient, specifically whether a physician can be found to have engaged in deceptive acts and practices in violation of K.S.A. 50-626 and unconscionable acts and practices in violation of K.S.A. 50-627 by knowingly making misrepresentations regarding the proposed medical treatment or willfully concealing or failing to make disclosures of material facts. We conclude die KCPA can apply to a physician’s conduct in providing treatment. We further conclude that expert testimony may be necessary to prove the claim.
This case arose after Tracy Williamson sought treatment from Jacob Amrani, M.D., for a disabling back injury Williamson had sustained 14 years earlier. Dr. Amrani recommended that Williamson undergo lower back surgery for an L4-5 and L5-S1 fusion involving BAK cages (a surgical device) and an iliac crest bone graft. Dr. Amrani performed this surgery on Williamson in May 1999. When Dr. Amrani saw Williamson again in August 1999, she was still experiencing pain in her lower back and left leg. Dr. Amrani recommended a second surgery involving removal of the BAK cage at L4-5. Dr. Amrani performed the second surgery in October 1999.
Williamson filed suit against Dr. Amrani. In an amended petition, Williamson alleged that Dr. Amrani engaged in deceptive acts and practices in violation of K.S.A. 50-626 and unconscionable acts and practices in violation of K.S.A. 50-627 by making representations to Williamson that the surgery he would perform would have benefits that, in fact, it did not have. Specifically, Williamson alleged that Dr. Amrani represented that the surgery he was recommending had a high likelihood of successfully relieving her pain when, in fact, that surgery had been unsuccessful in the majority of cases where Dr. Amrani had utilized the same procedure. Williamson alleged that Dr. Amrani had willfully misrepresented or concealed material facts in that he knew or should have known that the surgery he was recommending had produced “bad results” for a majority of his patients.
At the time of her deposition Williamson testified that, prior to the first surgery, Dr. Amrani told her the surgery would reheve her pain to the point where she would no longer need pain medication and would be able to return to work.
Dr. Amrani filed a motion for summary judgment arguing that the KCPA does not apply to a physician’s professional conduct in providing care and treatment to patients and that Williamson’s KCPA claims were an impermissible attempt to creatively plead medical negligence (malpractice).
District Judge Timothy G. Lahey overruled Dr. Amrani’s motion, finding that the KCPA applied. Noting that the KCPA must be liberally construed to bring consumer transactions within its scope, Judge Lahey found that, under the KCPA, the physician is a supplier and the patient is a consumer. Further, he found that while the KCPA has some explicit exclusions, nothing in the KCPA excludes the physician-patient relationship from its scope. Judge Lahey found there was a genuine issue of material fact as to what Dr. Amrani told Williamson about the surgeiy; therefore, whether there was a violation of the KCPA was a question for the jury.
Dr. Amrani subsequently filed a second motion for partial summary judgment arguing that, even if the KCPA applied, Williamson would be required to produce expert testimony to establish her claim that Dr. Amrani should have informed her of his personal experience and success rate in performing the medical procedure at issue. Williamson had not identified any such expert witness.
Judge Lahey granted Dr. Amrani’s motion, ruling that, while expert testimony would not be required to establish whether Dr. Amrani affirmatively misrepresented his level of experience or success rate in recommending the surgery to Williamson, expert testimony would be required to establish whether his failure to make an affirmative disclosure of his level of experience or success rate constituted a deceptive or unconscionable act or practice. Judge Lahey stated: “In the absence of expert testimony establishing a duty on the part of the doctor to disclose his experience to a patient, plaintiff does not establish a deceptive act.”
Prior to the scheduled trial, Dr. Amrani filed several motions in limine to exclude certain evidence. At a hearing on those motions, a different judge, District Judge Warren M. Wilbert, informed the parties that he had recently ruled in another case that the KCPA does not apply to a physician’s professional treatment of a patient, that he remained strongly of that view, and that he would likely rule that way at the time of a motion for directed verdict. In order to avoid the cost of trial and to conserve judicial resources, the parties agreed it would be more appropriate for the court to take up the matter on Dr. Amrani’s request to reconsider his motion for summary judgment. Judge Wilbert then ruled that Dr. Amrani was entitled to judgment as a matter of law, making the following conclusions of law:
“1. The issues of what disclosures a surgeon should malee to a patient regarding risks, benefits and the likelihood of success of tire proposed surgery falls under an area of the law of medical malpractice known as informed consent. A claim that a physician provided inadequate or inappropriate informed consent involves the professional aspect of a physician’s practice as opposed to the proprietary, business aspects of the physician’s practice;
“2. The Kansas Consumer Protection Act may under certain circumstances apply to the conduct of a physician in dealing with a patient. Application of the act, however, is limited to tire proprietary and business aspects of a physician’s practice and does not apply to the physician’s professional conduct in providing treatment to a patient;
“3. The issue of whether, under the particular circumstances of this case, Dr. Jacob Amrani, as an orthopedic surgeon, should have provided a less optimistic appraisal of tire likelihood of the surgery providing pain relief and other benefits is a subject intrinsically associated with professional judgment and tire standard of care of such nature as to, first, necessitate expert testimony and, second, be of a type the Kansas Legislature did not intend to have adjudicated under the terms of the Kansas Consumer Protection Act.”
Williamson timely appealed the district court’s ruling granting summary judgment in favor of Dr. Amrani.
Application of the KCPA
First, Williamson essentially contends the district court’s summary judgment ruling in favor of Dr. Amrani was inappropriate in light of the KCPA’s application to a physician’s professional conduct in providing treatment to a patient.
Standard of Review
This court’s standard of review on summary judgment is well established:
“ ‘Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, togedier with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citation omitted.]’ Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1274-75, 38 P.3d 679 (2002).” Garrett v. Read, 278 Kan. 662, 667, 102 P.3d 436 (2004); see K.S.A. 60-256.
In this case, the district court decided that Dr. Amrani was entitled to judgment as a matter of law because the KCPA did not apply to a doctor s professional conduct in providing medical treatment to a patient. Resolution of this issue requires the court to interpret the KCPA. Statutory interpretation is a question of law subject to de novo review. Myers v. Board of Jackson County Commr's, 280 Kan. 869, 871, 127 P.3d 319 (2006).
“In resolving questions of statutory interpretation, this court follows a cardinal rule of statutory construction:
‘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. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. When a statute is plain and unambiguous, tbe court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. Stated another way, when a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in it.’ [Citations omitted.]” State ex rel. Topeka Police Dept. v. $895.00 U.S. Currency, 281 Kan. 819, 825, 133 P.3d 91 (2006).
The Kansas Consumer Protection Act
Because the legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted, the analysis must begin with a review of the relevant provisions of the KCPA.
K.S.A. 50-623 provides in relevant part that the KCPA “shall be construed liberally to promote the following policies: (a) To simplify, clarify and modernize the law governing consumer transactions; [and] (b) to protect consumers from suppliers who commit deceptive and unconscionable practices.” K.S.A. 50-624 broadly defines the terms “consumer,” “supplier,” and “consumer transaction.” A “[c]onsumer” is defined as “an individual . . . who seeks or acquires property or services for personal, family, household, business or agricultural purposes.” K.S.A. 50-624(b). A “[s]upplier” is defined as “a manufacturer, distributor, dealer, seller, lessor, assignor, or other person who, in the ordinary course of business, solicits, engages in or enforces consumer transactions, whether or not dealing directly with the consumer.” K.S.A. 50-624(j). The term “[cjonsumer transaction” means “a sale, lease, assignment or other disposition for value of property or services within this state ... to a consumer; or a solicitation by a supplier with respect to any of these dispositions.” K.S.A. 50-624(c). The term “[s]ervices” includes “[w]ork, labor and other personal services” and “any other act performed for a consumer by a supplier.” K.S.A. 50-624(i)(1), (3).
The plain language of the KCPA is broad enough to encompass the providing of medical care and treatment services within a physician-patient relationship. A physician is, in the ordinary course of business, a seller or supplier of services. See K.S.A. 50-624(j). A patient is a consumer of those services for personal, family, or business puiposes. See K.S.A. 50-624(b). The sale of those services is a consumer transaction. See K.S.A. 50-624(c). Nothing in the KCPA explicitly excludes physicians or other professionals from the scope of its coverage. See, e.g., Moore v. Bird Engineering Co., 273 Kan. 2, 10-13, 41 P.3d 755 (2002) (KCPA applies to professional engineer who sells engineering services to consumer; engineer is a supplier and the sale of services is consumer transaction within scope of KCPA).
Furthermore, the KCPA does specifically exclude certain other persons and transactions from its scope. For example, insurance contracts regulated under state law are specifically excluded from the definition of consumer transactions. K.S.A. 50-624(c). The term “supplier” does not include “any bank, trust company or lending institution which is subject to state or federal regulation with regard to disposition of repossessed collateral by such bank, trust company or lending institution.” K.S.A. 50-624(j). Also, the KCPA does not apply to “a publisher, broadcaster, printer or other person engaged in the dissemination of information or the reproduction of printed or pictorial matter so far as the information or matter has been disseminated or reproduced on behalf of others without actual knowledge that it violated the Kansas consumer protection act.” K.S.A. 50-635. This shows that the legislature knows how to exclude certain categories of persons and transactions from the KCPA’s coverage and could have done so with regard to physicians if it so intended.
Williamson cites various Kansas cases for the premise that professionals of all lands are covered by the KCPA. See, e.g., Moore, 273 Kan. at 10-13 (KCPA applies to professional engineer who sells engineering services to a consumer); Hoffman v. Haug, 242 Kan. 867, 752 P.2d 124 (1988) (sale of house to purchaser through real estate agent is consumer transaction covered by KCPA; purchaser fits definition of consumer and real estate agent fits definition of supplier).
However, not all of the cases cited by Williamson stand for the proposition she advances. For example, Williamson cites Roy v. Young, 278 Kan. 244, 93 P.3d 712 (2004), for the premise that attorneys are subject to the KCPA. In Roy, plaintiff sued his attorney and law firm alleging legal malpractice and violations of the KCPA. The district court granted defendant’s motion for summary judgment on the ground that plaintiff s claims were time barred. On appeal, plaintiff argued that the district court erred in finding that his malpractice claim was time barred, but he made no argument with regard to the court’s decision that his KCPA claim was time barred. Thus, this court concluded he had abandoned any issue as to the KCPA claim. 278 Kan. at 248. The issue of whether the KCPA applies to claims against attorneys was not decided by the court in Roy.
Williamson also cites State ex rel. Stovall v. Martinez, 27 Kan. App. 2d 9, 996 P.2d 371, rev. denied 269 Kan. 941 (2000), for the premise that insurance claims consultants are subject to the KCPA. In that case, the attorney general alleged that the defendant, an insurance claims consultant, was engaged in the unauthorized practice of law and that his representations to consumers regarding his qualifications violated the KCPA. It is questionable whether an insurance claims consultant who engages in the unauthorized practice of law can be considered a “professional”; thus, this case is of little value in determining whether the KCPA is applicable to professionals generally.
Additionally, Williamson contends that this court has applied the KCPA to physicians in three cases: State ex rel. Stovall v. DVM Enterprises, Inc., 275 Kan. 243, 62 P.3d 653 (2003); State ex rel. Stovall v. Alivio, 275 Kan. 169, 61 P.3d 687 (2003); and State ex rel. Stovall v. ConfiMed.com, 272 Kan. 1313, 38 P.3d 707 (2002).
All three of these cases involved actions brought by the attorney general under the KCPA against physicians and companies that sold prescription drugs over the Internet without a physical examination of the patient. In none of the cases did the defendants argue that the KCPA did .not apply to the providing of care or treatment within a physician-patient relationship. In both ConfiMed.com and DVM Enterprises, the issue was whether the defendants’ conduct was unconscionable under the KCPA; this court found it was not. DVM Enterprises, 275 Kan. at 251-52, 255; ConfiMed.com, 272 Kan. at 1322-24. In Alivio, the issues on appeal were related to tire defendant doctor’s attempt to set aside a default judgment. See 275 Kan. at 172. None of the three cases directly addressed the issue presented in this case.
Williamson’s citation of Moore, 273 Kan. 2, is more germane. In Moore, the plaintiff hired tire defendant, an engineer, to design a bridge to be built on the plaintiff s residential property. After tire plaintiff sued, the district court found against the defendant for breach of contract, breach of express warranty, negligence, and violations of the KCPA. The Court of Appeals reversed the judgment as to the KCPA violations, finding that there was no intent to deceive on the part of the defendant. The plaintiff petitioned for review of the Court of Appeals’ holding, and the defendant cross-petitioned for review, questioning the application of the KCPA to professional engineering services.
In analyzing whether the KCPA applied, this court first noted that “K.S.A. 50-623 calls for the KCPA to be construed liberally to streamline the law of consumer transactions and to protect consumers from unscrupulous suppliers.” 273 Kan. at 10. The Moore court then cited tire KCPA’s definitions of “consumer,” “supplier,” “consumer transaction,” and its “very broad” definition of “services.” 273 Kan. at 10-11. The court found that the plaintiff was a consumer — an individual who sought services for personal purposes, and that the defendant was a supplier — a person who engaged in consumer transactions in the ordinary course of business. 273 Kan. at 11. The defendant’s sale of engineering services, i.e., the work in designing the bridge for the plaintiff, constituted a consumer transaction. This court noted the “comfortable fit” between the facts of the case and the statutory definitions of the KCPA. 273 Kan. at 11.
The defendant argued that, notwithstanding the apparent comfortable fit of the facts within the statutoiy framework of the KCPA, the KCPA was not intended to cover professional services. In support, the defendant cited Vort v. Hollander, 257 N.J. Super. 56, 607 A.2d 1339 (1992), a New Jersey case which held that state’s Consumer Fraud Act was not intended to apply to an attorney’s professional services.
The Moore court distinguished Vort, stating:
“The New Jersey court distinguished the legal profession on the basis that it is regulated exclusively by the state Supreme Court. 257 N.J. Super, at 62. Historically, attorneys were held to be exempt from liability under the Sherman Antitrust Act. That exemption was known as the learned profession’ exemption. The learned profession[s] originally included only lawyers, medical doctors, and clergy. See The Learned Profession Exemption of the North Carolina Deceptive Trade Act: The Wrong Bright Line? 15 Campbell L. Rev. 223, 250-51 (1993).
“However, the application of the KCPA to the legal profession is not before us. The narrow issue before this court is whether the engineering services rendered in the present case are covered by the KCPA. We make no determination here as to application of the KCPA to other professional services.” (Emphasis added.) 273 Kan. at 12.
Dr. Amrani offers several arguments as to why the KCPA would apply to engineers but should not be applied to physicians. These arguments include: cases from other jurisdictions in which it is concluded that those states’ consumer protection statutes do not apply to actions against physicians when medical treatment is the gravamen of the suit; prior cases in this jurisdiction rejecting contract or fraud as the theoretical bases for professional liability suits; and the legislature’s intent to create an alternative statutory scheme for medical malpractice suits. We will discuss each of these arguments
Application of Consumer Protection or Deceptive Trade Practice Laws to Professional Services in Other Jurisdictions
While Moore only briefly mentioned the traditional learned profession exemption and found it irrelevant to the facts of that case, the exemption is of much more importance in the instant case, where the medical profession squarely falls into the category of learned professions. Although, as the Moore court recognized, there was historically a learned profession exemption from liability under the federal antitrust laws, that exemption was eroded by Goldfarb v. Virginia State Bar, 421 U.S. 773, 44 L. Ed. 2d 572, 95 S. Ct. 2004, reh. denied 423 U.S. 886 (1975). In Goldfarb, the United States Supreme Court recognized that the Sherman Antitrust Act contained no express exception for professionals. The Goldfarb Court held that the practice of law, as an “exchange of . . . service[s] for money,” is “commerce” and falls within the scope of the Sherman Antitrust Act. 421 U.S. at 787-88. It also falls within the Federal Trade Commission (FTC) Act; see Flynn, Physician Business (Mal)practice, 20 Hamline L. Rev. 333, 339 (1996).
After Goldfarb, some states specifically exempted members of learned professions from the coverage under their consumer protection or deceptive trade practices acts (CPA or DTPA). See, e.g., Md. Comm. Law Code Ann. § 13-104 (2005) (Maryland); N.C. Gen. Stat. § 75-1.1(b) (2005) (North Carolina); Ohio Rev. Code Ann. § 1345.01(A) (Lexis 2006) (Ohio). At least one state specifically exempted “trade or commerce otherwise permitted under laws administered by any regulatory board or offices acting under statutory authority of this state of the United States.” N.H. Rev. Stat. Ann. § 358-A:3(I) (1995 & 2006 Supp.) (New Hampshire). This provision has been interpreted as exempting attorneys who are governed by their own self-regulating board. Rousseau v. Eshleman, 128 N.H. 564, 567, 519 A.2d 243 (1986), reh. denied 129 N.H. 306, 529 A.2d 862 (1987). Kansas has not specifically exempted professionals from tire application of the KCPA in this manner.
Most states, like Kansas, have left it to the courts to determine whether attorneys, physicians, and other learned professionals fall within the coverage of their consumer protection or deceptive trade practice acts. See Flynn, 20 Hamline L. Rev. at 339. Kansas courts have not been squarely faced with the issue of whether the KCPA covers a physician’s professional conduct in providing medical care or treatment to a patient. However, the issue has been widely litigated in other jurisdictions with varying results. Many courts have interpreted the applicable statutory language as exempting professional conduct within the actual practice of law or medicine but not the entrepreneurial or business aspects of those practices. The district court in this case used the same approach.
One of the leading cases to make this distinction was Quimby v. Fine, 45 Wash. App. 175, 724 P.2d 403 (1986). In Quimby, the plaintiff filed a wrongful birth suit against a doctor who had substituted procedures during a tubal ligation surgery without the plaintiff s informed consent. The plaintiff brought an action for negligence and unfair and deceptive trade practices under the Washington CPA against the doctor based on theories of liability, negligence, and lack of informed consent.
The defendant doctor argued that the Washington CPA did not apply to either claim. The Quimby court cited Short v. Demopolis, 103 Wash. 2d 52, 61, 691 P.2d 163 (1984), a case which held that “certain entrepreneurial aspects of the practice of law may fall within the ‘trade or commerce’ definition” of the Washington CPA. Quimby extended the holding of Short and concluded that plaintiff s negligence claim did not fall within the scope of the Washington CPA “because it relates to the actual competence of the medical practitioner.” 45 Wash. App. at 180. However, the Quimby court held that the plaintiff s lack of informed consent claim could fall within the scope of the Washington CPA “if it relates to the entrepreneurial aspects of the medical practice.” 45 Wash. App. at 181. The court noted that a claim for lack of informed consent was not limited to a breach of the professional standard of care but “can be based on dishonest and unfair practices used to promote the entrepreneurial aspects of a doctor’s practice, such as when a doctor promotes an operation or service to increase profits and the volume of patients, then fails to adequately advise the patient of risks or alternative procedures.” 45 Wash. App. at 181.
Williamson cites several other cases which, like Quimby, have held that consumer protection laws can apply to misrepresentations made in professional practice. See Karlin v. IVF America, Inc., 93 N.Y.2d 282, 690 N.Y.S.2d 495, 712 N.E.2d 662 (1999) (patients of in vitro fertilization program who alleged that program had dissem mated false success rates for program and misrepresented health risks presented could maintain action against program for deceptive practices and false advertising in violation of general business law and were not limited to medical malpractice claim based on lack of informed consent or barred from also asserting such a claim); Rhodes v. Sorokolit, 846 S.W.2d 618, 620-21 (Tex. Ct. App. 1993), aff'd Sorokolit v. Rhodes, 889 S.W.2d 239 (Tex. 1994) (Texas DTPA cause of action existed against plastic surgeon for misrepresentation and breach of express warranty where plastic surgeon promised patient’s breasts would look just like those in Playboy picture and affirmatively stated there would be no problems with scarring or capsulization of implants); Chapman v. Paul R. Wilson, Jr., D.D.S., 826 S.W.2d 214, 218-220 (Tex. Civ. App. 1992) (Texas Medical Liability Act provision which exempts medical negligence from coverage under Texas DTPA did not also extend protection for physician’s misrepresentations as to services to be provided; where defendant allegedly misrepresented expertise in wisdom teeth extraction and stated that general anesthesia would be used, plaintiff could bring DTPA claim); Eriks v. Denver, 118 Wash. 2d 451, 463-65, 824 P.2d 1207 (1992) (entrepreneurial aspects of practice of law fall within Washington CPA and are involved if purpose of concealing information was to gain clients or increase profits).
Dr. Amrani responds that all of the cases relied upon by Williamson hold that only the entrepreneurial activities of a physician fall under consumer protection laws. Dr. Amrani cites a litany of cases which distinguish between negligence claims and claims involving the entrepreneurial or business aspects of the practice of medicine. While many of the cases set out persuasive policy reasons for exempting purely professional medical treatment from consumer protection laws, there is one significant problem with relying on these cases in Kansas. In maiding the distinction between professional conduct in the actual practice of medicine and the entrepreneurial or business aspects of the medical profession, tire cases generally rely on statutory language stating that the consumer protection or deceptive trade practices act in question applies to those engaging in “trade or commerce.” Most of the cases cited by Dr. Amrani fall into this category. See Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 32-38, 699 A.2d 964 (1997) (Connecticut Uniform Trade Practices Act [CUTPA] applies to “conduct of any trade or commerce”; touchstone for legally sufficient CUTPA claim against health care provider is allegation that entrepreneurial or business aspect of provision of services is implicated, aside from medical competence or malpractice; to hold otherwise “would transform eveiy claim for medical malpractice into a CUTPA claim”); Evanston Hosp. v. Crane, 254 Ill. App. 3d 435, 443-44, 627 N.E.2d 29 (1993) (Illinois Consumer Fraud Act applies to “conduct of any trade or commerce”; Consumer Fraud Act not available as additional remedy to redress patient’s damages arising from alleged medical malpractice where patient alleged hospital’s patient guide was deceptive in stating that hospital was committed to high-quality care when patient did not receive such care); Nelson v. Ho, 222 Mich. App. 74, 84, 564 N.W.2d 482 (1997) (“Only when physicians are engaging in the entrepreneurial, commercial, or business aspect of the practice of medicine are they engaged in ‘trade or commerce’ within the purview of the [Michigan CPA].”).
The “trade or commerce” language contained in many states’ consumer protection laws appears to be the source of the entrepreneurial test. However, the KCPA does not contain any similarly restrictive “trade or commerce” language.
In enacting the KCPA, Kansas was one of three states that substantially adopted the Uniform Consumer Sales Practices Act (UCSPA). Ohio and Utah also substantially adopted the UCSPA. Texas adopted an act which has some similar provisions. See 7A (Pt. 1) U.L.A. (UCSPA), pp. 69-70 (2002).
Because Ohio also uses the language of the UCSPA, Kansas has previously looked to Ohio law for guidance in interpreting the KCPA. See State ex rel. Miller v. Midwest Service Bur. of Topeka, Inc., 229 Kan. 322, 324, 623 P.2d 1343 (1981) (independent debt collection agency can be subject to provisions of KCPA under certain circumstances). In this instance, Ohio law is not helpful because Ohio has specifically excluded transactions between physicians and their patients from the definition of “consumer transaction.” Ohio Rev. Code Ann. § 1345.01(A).
It does not appear that Utah courts have yet been faced with the question of whether Utah’s CPA applies to the providing of care and treatment within a physician-patient relationship. In Texas, the legislature has made the courts’ job easier by specifically exempting medical negligence claims from the coverage of its DTPA. See Chapman, 826 S.W.2d at 218.
The Kansas Legislature did not enact such an exemption. Rather, the statute applies broadly to services provided by a supplier of services to a consumer. This language is plain and unambiguous. Hence, we must give effect to the intention of the legislature as expressed. We see merit to many if not most of the policy arguments discussed in the cases from other jurisdictions. However, it is not our role to determine public policies; that is the role of the legislature. We must interpret the statute as it is plainly worded and, thus, do not find the authorities from other jurisdictions persuasive.
Common-Law Causes of Action in Kansas
Next, Dr. Amrani argues that Williamson is attempting to creatively plead what is really a claim for medical malpractice. Dr. Amrani cites a series of Kansas cases holding that a plaintiff cannot bring a claim for breach of contract or fraud where the gravamen of the claim is medical malpractice. See Malone v. University of Kansas Medical Center, 220 Kan. 371, 374-76, 552 P.2d 885 (1976) (action for failure of medical center to furnish all needed treatment sounded in tort; action could not be characterized as one in contract in order to avoid bar of governmental immunity); Travis v. Bishoff, 143 Kan. 283, 284-85, 54 P.2d 955 (1936) (action against surgeon for failure to perform operation according to proper surgical practice was one for malpractice even though petition stated action was for breach of contract). Cf. Noel v. Proud, 189 Kan. 6, Syl. ¶ 1, 367 P.2d 61 (1961) (3-year statute of limitations on oral contracts, rather than 2-year statute for torts, applied to patient’s action against physician for alleged breach of warranty that surgery would not worsen patient’s condition).
In Bonin v. Vannaman, 261 Kan. 199, 929 P.2d 754 (1996), this court held diat where a plaintiff alleged her physician failed to disclose information on a chest x-ray and failed to diagnose her condition, the cause of action sounded in medical malpractice and not fraud even though the alleged conduct technically fulfilled all the elements of a claim for fraud by silence. Thus, the doctrine of fraudulent concealment could not he applied to extend the statute of limitations. The court stated:
“This does not mean that a doctor can never be hable for fraud or breach of contract. Instead, this simply means that a fraud or breach of contract cause of action can only be based upon a physician’s misconduct if that misconduct is beyond a breach of the legal duty which every doctor has the obligation to uphold. [Citation omitted.]
“As this court stated in Noel, 189 Kan. at 10 (quoting Calabrese v. Bickley, 208 Misc. 407, 408-09, 143 N.Y.S.2d 846 [1955], aff'd as modified 1 App. Div. 2d 874, 150 N.Y.S.2d 542 [1956]):
‘ “As malpractice covers every way in which a patient is injured through the dereliction of a doctor in his professional capacity, the approach, depending on the facts, can be through any of several familiar forms of action. But no matter what the approach, it remains an action for malpractice, not one for deceit, contract or anything else. A well recognized ground for recovery is where a physician represents that he has the skill to perform a certain operation when in fact he does not. This form of action requires the same elements of proof that an action in fraud requires, yet it could not be successfully disputed that as between the two it is an action for malpractice." ’ (Emphasis added.)” Bonin, 261 Kan. at 210-11.
As a counter to Bonin, Williamson cites Robinson v. Shah, 23 Kan. App. 2d 812, 936 P.2d 784 (1997), a case which held that a physician’s concealment of underlying malpractice gave rise to a fraud claim separate from the malpractice claim.
Dr. Amrani argues that, as in Bonin, the alleged misconduct in this case was part of the doctor’s legal duty of informed consent. Williamson responds that laiowingly selling a patient a surgeiy that has a small chance of success, while promising that the surgeiy has a great chance of success, is more than a mere failure of informed consent — it is a deceptive act or practice under the KCPA.
Bonin and the other above cited cases provide little guidance because they all deal with common-law causes of action. None of the cases deal with a claim under the KCPA, wherein the legislature has provided for a specific statutory cause of action. Furthermore, many of the cases cited by Dr. Amrani are focused on identifying a particular cause of action for purposes of determining the applicable statute of limitations. In the context of the KCPA, a different land of reasoning has been applied. Our courts have recognized that a claim under the KCPA is an action upon a liability created by statute; therefore, the applicable statute of hmitations is the 3-year period provided in K.S.A. 60-512(2); see Haag v. Dry Basement, Inc., 11 Kan. App. 2d 649, Syl., 732 P.2d 392, rev. denied 241 Kan. 838 (1987); see also Alexander v. Certified Master Builders Corp., 268 Kan. 812, 819-24, 1 P.3d 899 (2000) (clarifying that different statutes of limitation apply depending upon whether action under KCPA seeks damages or statutoiy penalty; where plaintiff sought both civil penalties and actual damages, action was subject to 3-year limitations period of 60-512[2], i.e., action upon liability created by statute).
In Haag, the defendant argued that because the plaintiff s KCPA claim was one based on fraud, the 2-year statute of hmitations contained in K.S.A. 60-513(a)(3) barred the plaintiffs claim. The Court of Appeals disagreed, noting that an action for common-law fraud is not the same as an action under the KCPA because under the KCPA intent to defraud need not be proven. The court held that “because a supplier s liability to a consumer is created by the provisions of the Kansas Consumer Protection Act, the 3-year statute of hmitations for an action upon a liability created by statute, K.S.A. 60-512(2), apphes to suits brought under the Act.” 11 Kan. App. 2d at 650.
Although we are not concerned here with the applicable statute of hmitations, Haag reinforces the point that actions under the KCPA are statutorily created causes of action. Nothing prohibits the legislature from creating a statutoiy remedy even in situations where a common-law remedy may be available. The plain language of the KCPA provides such a statutoiy remedy since a physician provides a service to a consumer.
Statutory Scheme Covering Medical Malpractice Claims
Finally, Dr. Amrani argues that the legislature has set forth a comprehensive statutoiy scheme specifically for the litigation of medical malpractice cases, which makes it clear that the legislature did not intend for claims against physicians to be remedied under the KCPA. Dr. Amrani lists a variety of reforms in medical malpractice and tort law that took place in Kansas during the 1970’s and 1980’s. These reforms are described in detail in Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 339-340, 789 P.2d 541 (1990), overruled in part on other grounds Bair v. Peck, 248 Kan. 824, 811 P.2d 1176 (1991), and include, among other things, establishment of the Health Care Stabilization Fund and medical malpractice screening panels, shortening of the statute of limitations on medical malpractice, changes to the collateral source rule, and damages caps.
Dr. Amrani cites Chelsea Plaza Homes, Inc. v. Moore, 226 Kan. 430, 434, 601 P.2d 1100 (1979), as support for the argument that the KCPA does not apply to an area of substantive law that is the subject of other specific legislation. In Chelsea Plaza, this court held that the Kansas Residential Landlord and Tenant Act (KRLTA), K.S.A. 58-2540, et seq., is specific legislation, complete in itself, which takes precedence over the broad KCPA and controls all transactions within its purview; thus, the KCPA is inapplicable to arrangements that fall within the provisions of the KRLTA.
Chelsea Plaza has been distinguished in two federal cases: Skeet v. Sears, Roebuck & Co., 760 F. Supp. 872, 876 (D. Kan. 1991) (KCPA claim not preempted by Kansas Optometric Act in case against Sears for dispensing contact lenses without proper prescription), and Bailey v. Morgan Drive-Away, Inc., 647 F. Supp. 648, 655-56 (D. Kan. 1986) (KCPA claim not preempted by Kansas Corporation Commission s regulation of intrastate common carriers; court found “no inherent conflict” between laws).
Williamson accurately points out that there is no single act or all-encompassing statutory scheme concerning medical malpractice comparable to the KRLTA at issue in Chelsea Plaza. While the legislature has passed various pieces of legislation affecting various aspects of medical malpractice litigation, it has not passed any legislation which precludes coverage for medical negligence claims under the KCPA. Cf. Chapman, 826 S.W.2d at 218 (Texas’ Medical Liability Act specifically precludes coverage for medical negligence claims under that state’s DTP A).
Because the language of the KCPA is broad enough to encompass a claim regarding the providing of medical care or treatment services brought by a patient against a physician for a violation under die KCPA, the district court’s order granting summary judgment in favor of defendant, Dr. Amrani, is reversed.
Expert Testimony
Williamson also takes issue with Judge Lahey’s ruling that, while expert testimony would not be required to establish whether Dr. Amrani affirmatively misrepresented his level of experience or success rate in recommending the surgery to Williamson, expert testimony would be required to establish whether the failure to make an affirmative disclosure of his level of experience or success rate constituted a deceptive or unconscionable act or practice under the KCPA.
Standard of Review
In general, the district court is vested with wide discretion in receiving opinion evidence under K.S.A. 60-456. Nunez v. Wilson, 211 Kan. 443, 445, 507 P.2d 329 (1973). Expert testimony is generally required in medical malpractice cases to establish the standard of care and to prove causation, except where the lack of reasonable care or the existence of proximate cause is apparent to the average layman from common knowledge or experience. Hare v. Wendler, 263 Kan. 434, 440, 949 P.2d 1141 (1997); Collins v. Meeker, 198 Kan. 390, 394, 424 P.2d 488 (1967). In an informed consent case, expert testimony is generally necessary to establish that a physician’s disclosures to the patient “were insufficient to accord with disclosures made by reasonable medical practitioners under the same or like circumstances.” Charley v. Cameron, 215 Kan. 750, 756, 528 P.2d 1205 (1974); see Tatro v. Lueken, 212 Kan. 606, Syl. ¶ 3, 512 P.2d 529 (1973).
According to Williamson, because this is not an informed consent case, there is no need for expert testimony to establish whether a physician has a duty to reveal his or her level of experience and success rate with a particular procedure. Rather, the relevant question is whether Dr. Amrani knew that tire surgery he was recom mending was not likely to produce the beneficial results he was promising. In her reply brief, Williamson argues that, while a negligence action for failure of informed consent must focus on whether a doctor has met the applicable standard of care, i.e., what information a reasonable doctor would disclose under similar circumstances, an action under the KCPA can focus on the material expectations of the consumer, i.e., what information a reasonable patient would consider important.
Dr. Amrani focuses on whether Williamson should be allowed to introduce evidence of the doctors past experience with the surgical procedure he performed in the absence of expert testimony. This, however, was not the precise issue ruled on by the district court. Judge Lahey stated: “In the absence of expert testimony establishing a duty on the part of the doctor to disclose his experience to a patient, plaintiff does not establish a deceptive act.”
Although Williamson argues this is not a medical malpractice or informed consent case, the well-established test for determining whether expert testimony is required is whether the subject matter is too complex to fall within the common knowledge of the jury and is “beyond the capability of a lay person to decide.” Hare, 263 Kan. at 445; see also Teikin v. Reynolds, 904 P.2d 1387 (Colo. App. 1995) (statute requiring certificate of review in negligence action against licensed professional indicating that plaintiff s counsel consulted with expert in area of alleged negligent conduct and concluded the claim did not lack substantial justification; expert testimony also required in claims against physicians and clinic under Colorado’s CPA).
Whether expert testimony is required depends on what point the plaintiff is trying to prove. As the district court found, a layperson could understand and judge, without the aid of expert testimony, an allegation that Dr. Amrani actually misrepresented his level of experience and success rate with the surgery, thereby misleading Williamson into agreeing to the surgery. Conversely, Williamson’s attempt to prove that Dr. Amrani should have affirmatively disclosed his level of experience and success rate with the surgery but failed to do so, raises the question of whether such disclosures would normally be made by a reasonable physician under similar circumstances.
Under K.S.A. 50-626(b)(3) of the KCPA, an allegation of deception by failing to fully disclose material facts requires proof of the willful failure to state a material fact or the willful concealment, suppression, or omission of a material fact. Before one can willfully fail to disclose a fact, there must be an obligation to communicate the fact. In other words, there must be a duty to disclose the fact. Although addressing the duty element of common-law fraud and not addressing the KCPA, in OMI Holdings, Inc. v. Howell, 260 Kan. 305, 918 P.2d 1274 (1996), the court made a statement which is applicable to a determination of whether there was an intentional failure to disclose a material fact under the KCPA, stating that a party has a duty to disclose material facts if the party knows the other party is entering a transaction under a mistake as to the facts and the other “ ‘ “because of the relationship between them, the customs in trade, or other objective circumstances, would reasonably expect disclosure of such facts.” ’ ” 260 Kan. at 347 (quoting Boegel v. Colorado Nat’l Bank of Denver, 18 Kan. App. 2d 546, 550, 857 P.2d 1362, rev. denied 253 Kan. 856 [1993]). Such a requirement is consistent with the duty imposed upon physicians to malee those disclosures that would be made by a reasonable medical practitioner under the same or like circumstances. Expert testimony is ordinarily necessary to establish the standard of what a reasonable medical practitioner would disclose. Charley, 215 Kan. at 756. Thus, in order to determine whether Dr. Amrani’s alleged failure to make an affirmative disclosure of his level of experience or success rate for the recommended surgery constituted a deceptive or unconscionable act or practice, the district court correctly ruled that expert testimony would be helpful in determining whether the disclosure is one that would be made by a reasonable medical practitioner under the same or like circumstances.
Affirmed in part, reversed in part, and remanded with directions.
Luckert, J., not participating.
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The opinion of the court was delivered by
Rosen, J.:
Dewey Gaither appeals his convictions and sentences for attempted first-degree premeditated murder; first-degree felony murder; aggravated robbeiy; aggravated kidnapping; and fel ony obstruction of official duty. Gaither asserts that his convictions should be reversed and his sentences vacated because of the following errors: (1) the district court denied his right to a fair trial by committing misconduct during jury voir dire; (2) tire district court erroneously denied his motion to sever the charges against him into separate trials; (3) the district court erroneously excluded evidence that one of the victims had a warrant for a federal weapons violation; (4) the district court erroneously admitted evidence in violation of K.S.A. 60-455; (5) the district court erroneously instructed the jury regarding the 60-455 evidence; (6) the district court should have instructed the jury to consider aggravated battery as a lesser included offense to attempted first-degree premeditated murder; (7) the district court committed cumulative errors that denied him a fair trial; and (8) his sentence was erroneously based on his criminal history score, which was not proven beyond a reasonable doubt to the jury.
FACTS
The convictions in this case stem from Gaither s violent crusade to acquire illegal drugs. On or about July 16, 2003, Gaither went to Eddie Howard’s house to buy drugs. Robert Barnes, a friend of Howard’s who sold drugs at Howard’s house, told Gaither that he did not have what Gaither wanted and advised Gaither to try again later. Gaither returned to Howard’s house the following day while Barnes was gone. Leo Holloman, another one of Howard’s friends, was sleeping on Howard’s sofa when Gaither arrived. Gaither woke Holloman, pointed a 9 mm pistol at his head, and demanded Holloman’s money. Before leaving, Gaither told Holloman to warn Barnes that Gaither would be back to get him. When Barnes returned to Howard’s house, Holloman told him that Gaither would be back the next morning at 8.
Early the next morning, Gaither returned to Howard’s house with his mother, Lenita DeGrate. DeGrate entered the house and spoke briefly to Holloman and Howard while Gaither remained outside on the porch. As Holloman opened the door to let DeGrate out, Gaither approached the door with a gun. When Holloman refused to let Gaither in, Gaither lacked in the glass storm door and burst into the house. Holloman warned Barnes as he ran out the front door yelling, “There go that nigger again.”
Gaither immediately confronted Bames, pointing a 9 mm pistol at Barnes’ head and stating, “I’m going to kill you.” Barnes struggled with Gaither, while Gaither’s mother repeatedly hit Barnes on the head with a hard object, saying, “Get off my son.” Shortly thereafter, Gaither’s mother left through the front door. Bames got away from Gaither and ran out the back door. Barnes then ran around to the sidewalk in front of the house to await the arrival of police. While Barnes was on the front sidewalk, Gaither exited the front door, pointed the pistol at Bames, cocked it, and fired one shot into Barnes’ chest. Gaither then walked across the street, entered the car where his mother was waiting, and drove away.
Police later found an unspent 9 mm cartridge on Howard’s front porch. Police also found drops of blood matching DeGrate’s DNA on Howard’s front steps and sidewalk and on the street in front of Howard’s house.
While Bames was recovering in the hospital, a police officer showed him a photographic lineup. Barnes identified someone other than Gaither as the shooter, stating that he was 70% certain of his identification. Several months later, police presented photographic lineups to Holloman who identified Gaither as the shooter and DeGrate as Gaither’s companion.
Four days after shooting Bames, Gaither was smoking cocaine with his friends, Shannon Doggett and Raina Islas. When the trio ran out of cocaine, Gaither stated that Bobby Washington owed him money and suggested going to Washington’s house to collect the debt so they could purchase more drugs. Doggett drove Gaither to Washington’s house. Gaither approached Washington’s house alone, while Doggett and Islas waited in the truck.
Washington was home with his friend Stephanie Pounds when Gaither arrived. Gaither entered Washington’s house and threatened Washington with a gun, demanding money or drags. While Gaither was attempting to rob Washington, Kevin Phelps knocked at the back door. Gaither instructed Pounds to open the door. As soon as Phelps entered, Gaither demanded Phelps’ money. Phelps initially thought Gaither was joking but quickly realized that he had walked into an armed robbery. Gaither reached into Phelps’ pocket and took the $10 bill that Phelps had with him. Gaither was agitated when Washington failed to produce any money or drugs, so Pounds offered to go to the neighbors in search of drugs for Gaither. Gaither agreed to let Pounds go, but threatened to shoot Washington if Pounds did not return.
After Pounds had been gone for several minutes, Gaither told Phelps to go to the back door and look for Pounds. Phelps opened the door, thinking he would be able to run. Gaither, however, grabbed Phelps’ shoulder and pointed the gun at Phelps’ head. When Phelps and Gaither did not see Pounds, they went back into Washington’s house. As soon as Phelps closed the door, Washington threw an oxygen bottle across the room at Gaither. Gaither shot Washington once in the chest, killing him. Phelps ran out the front door, and Gaither followed him.
As soon as Doggett heard the gunshots, she became frightened and started driving away from Washington’s house. Doggett saw Gaither run out of Washington’s front door towards the neighbor’s house, carrying a gun. As Doggett drove by, she yelled at Gaither to get in the truck. Gaither got in, and Doggett drove away. Gaither told Doggett that he had shot the gun in the air to frighten Washington.
Two days later, Doggett heard that Washington had been shot and contacted the police to turn herself in. Doggett informed the police that Gaither had killed Washington with a 9 mm weapon. She also provided a description of Gaither and his vehicle.
The day after Doggett turned herself in, police received a call from the manager of the Holiday Inn reporting some suspicious individuals in the parking lot. Officers responded and found a car in the parking lot occupied by two black males. The driver identified himself as Chesster It. Ridge. The passenger, who was later identified as Gaither, identified himself as Tyrone DeGrate. The officer recognized tattoos on Gaither which matched those of the suspect in the Washington shooting. As the officer started to handcuff him, Gaither fled into the lobby of the Holiday Inn.
Inside the Holiday Inn, Gaither saw a housekeeper cleaning room 109. He pushed her into the room and closed the door. When the housekeeper attempted to use the telephone in the room, Gaither instructed her not to make any calls. While Gaither was getting a drink at the sink, she started to use her cell phone, but Gaither stopped her and took the phone away from her. Gaither returned the phone to the housekeeper, but she did not attempt to make another call. After waiting several minutes, the housekeeper opened the curtains and told Gaither that tire police were gone. When Gaither went to the window to look for himself, she ran out of the room and informed police of Gaither s location. Gaither opened the first-floor window and jumped out. Police apprehended Gaither in the Holiday Inn parking lot and transported him to the jail.
Barnes was released from the hospital on the same day that Gaither was arrested. Due to an outstanding warrant, Barnes was arrested and transported to the jail. As Barnes was being fingerprinted at the jail, he saw Gaither and recognized him as the man who had shot him 1 week earlier. Barnes immediately pointed at Gaither and exclaimed, “That’s the pussy that shot me.”
The State charged Gaither with attempted first-degree premeditated murder for shooting Barnes; felony murder for killing Washington; aggravated robbeiy for taking money from Phelps at gunpoint; aggravated kidnapping for confining the housekeeper at the Holiday Inn; and felony obstruction of justice for fleeing the police at the Holiday Inn. Gaither filed a motion seeking tire severance of his charges; however, tire district court denied tire motion. Gaither also moved to admit evidence that the Federal Bureau of Alcohol, Tobacco and Firearms (ATF) had a warrant for Barnes’ arrest on a weapons violation, and the district court denied that motion.
During voir dire, the district judge became frustrated and angry with two prospective jurors, resulting in her losing her temper and yelling at them. One of tire prospective jurors stated that she did not believe police officers could be truthful. After dismissing the woman from jury service, the judge ordered her to appear in court every day to watch the trial. Another prospective juror stated that her religion prevented her from judging Gaither. However, the prospective juror further stated that she believed Gaither must be guilty of something because he was being tried. The judge dismissed the prospective juror for cause, stating, “I feel sorry for the next person that ends up going, because I am going to hit the roof, I think.”
Gaither moved for a mistrial. The State agreed that the judge’s comments may have had a chilling effect on the jury. Nevertheless, the judge denied Gaither’s motion for a mistrial. The following day, the judge apologized to the jury panel, released the prospective juror from the order to attend trial, and offered to excuse anyone who felt intimidated by her behavior. After two prospective jurors accepted the judge’s offer, voir dire continued and the attorneys selected a jury. The jury ultimately found Gaither guilty on all counts.
The district court sentenced Gaither to serve life (hard 20) for felony murder; 203 months for attempted first-degree premeditated murder; 61 months for aggravated robbeiy; 165 months for aggravated kidnapping; and 7 months for felony obstruction of justice. The district court ordered all of the sentences to be served consecutively, resulting in a life sentence plus 436 months. Gaither now appeals his convictions and his sentences directly to this court pursuant to K.S.A. 22-3601(b)(1).
ANALYSIS
Judicial Misconduct
Gaither asserts that the district judge committed misconduct during voir dire when she harshly questioned prospective jurors, lost her temper, and yelled at members of the jury venire. Gaither’s complaint stems from the judge’s questioning of a prospective juror who indicated that she would not believe anything the police said. The following colloquy is the basis for Gaither’s complaint:
“THE COURT: No one’s asking the life history and the things that bring you to this place, but that’s not what you started out saying, ma’am. What you started saying is, because someone has a uniform on, you will dislike them automatically, and you’re going to discount their testimony; is that what you’re saying?
“PROSPECTIVE JUROR [L]: When I got my driver’s license —■
“THE COURT: Answer me yes or no.
“PROSPECTIVE JUROR [L]: Yes. I have to really go and think about that a whole lot. I can’t just taire their word.
“THE COURT: I’m going to excuse you from your jury service, ma’am, but I’m going to require you to sit through this entire trial, so you can get an objective view of how people — of how people do testify. I think that you have — I think there is perhaps some validity to what you have to say, but I think that you — you need an opportunity to be exposed more to our law enforcement personnel, and I think that because this trial will have so many that will be testifying, I want you to — I’m ordering you to sit through this entire trial. It will be considered part of your jury service, and you will be paid at the rate of a jury member. You’ll need to taire your card back down.
“PROSPECTIVE JUROR [L]: Okay.
“THE COURT: If you fail to appear on any day of tire trial, that will be considered contempt of court, because this is a direct order.”
After dismissing Prospective Juror L from serving on the jury and ordering her to attend the trial, the judge called Prospective Juror D from the jury pool. Then, the judge stated:
“All right. Anybody else want to mess with me? Just thought I would ask. If anybody doubts how much I value you as jurors and how much — how important I think your service is, I think you get the right idea now. Not one person here is more important than anybody else as far as their time. I really mean it. Thank you.”
After this comment, the prosecutor began questioning Prospective Juror D, who stated that her religious beliefs made it uncomfortable for her to judge anyone. Prospective Juror D further advised the court that she believed anyone on trial must be guilty of something. In response to Prospective Juror D’s statements, the judge made the following comments:
“I think what you’re saying — you’re contradicting yourself about what you’re saying, and we have had Jehovah’s witnesses that do sit on juries. I believe it’s your personal feelings that you simply don’t want to do it, not because it’s a long trial, but I believe you don’t want to do it. I’ve got quite a few people that don’t want to do it either. But you have said the magic words, so you are released from your jury service. And I feel sorry for the next person that ends up going, because I am going to hit the roof, I think.
“[Prospective Juror D] made a comment which is completely wrong. Just because Mr. Gaither is here does not mean he must be guilty of something. That is the antithesis, the opposite of what our judicial system is about.
“Mr. Gaither sits before each and every one of you right now, and he is innocent until there has been evidence sufficient to what I will instruct the jury on to prove him guilty, and that’s beyond a reasonable doubt. . . . Nobody here has heard one piece of evidence about anything, and despite what [Prospective Juror D] said in her misguided beliefs about not judging people, that was absolutely wrong. He sits here an innocent man until evidence has been presented — until and if evidence has been presented sufficient to prove that he’s guilty. Does eveiyone here understand that? If you do not understand that, raise your hand right now. I am vehemently serious about that.”
After Prospective Juror D was dismissed for cause, the voir dire continued and tire prosecutor addressed Prospective Juror M, who had raised his hand in response to a question about contact with law enforcement officers. Prospective Juror M stated that he had changed his mind about responding to the prosecutor s question. At that point, Gaither s counsel asked to approach the bench. Following an off-the-record bench conference, the judge made the following comments to the jury:
“THE COURT: No one should be compelled — feel compelled to say anything that’s not true, because they’re afraid I’m going to yell at them. I haven’t refused to let anybody off this juiy who had a legitimate reason for being off this jury. I became angry with one juror who is going to come back and sit, because I believed that she had an agenda from the minute she walked in here to begin her jury service, based on things that I have observed about her sitting here.
“I was not happy with Prospective Juror D. I will tell you that, because I was not happy that she sat here and announced to a room full of people that she would not judge people, and yet, she turned around and said she believed Mr. Gaither was guilty of something just because he was sitting here. I didn’t think that was right either.
“If you have a legitimate reason for not serving on this jury, if you have qualms about anything, I really — you know, I hope that I have not done anything to make you think I’m going to make the rest of you sit through the entire jury trial just because I don’t like your answers. I can understand your concerns, and I’ll tell you what: The next two people that have things negative to say, I give them amnesty right here airead of time, all right? I’m really not that bad. I am really not that bad at all, and I want — and you all took an oath, and you must be honest in your answers. I presume that if you have something that’s kind of not good, that I’m not going to like that you have the guts to say it because you’re under oath. I’ve let everybody go except for one person who will be coming back, and I’m quite sure her circumstances were completely unique.”
The prosecutor resumed his voir dire without- further incident. At the end of the day, the judge recessed voir dire with the following comments:
“Don’t talle about this case. Don’t drink about it. If I have been rude and mean today, I apologize veiy, very, very much so. I just believe that each one of you is as important as the others, and your time and everything else is as important, and I get a little bit abrupt at times, and I will be good tomorrow, if you all come in and you’re nice tomorrow, too, okay?”
After the jury venire left, Gaither s counsel requested a mistrial, stating that the judge’s comments had caused a chilling effect on the jury, preventing them from speaking honestly about their feelings and making them fear upsetting the court. The State agreed with Gaither’s concern that the judge’s comments may have prevented the juiy from responding honestly but acknowledged that the jurors appeared to be giving honest responses to his questions. The judge admitted being angry and yelling at two of the prospective jurors and thanked counsel for reining her in. Nevertheless, tire judge denied Gaither’s request for a mistrial.
The next morning, the judge greeted the jury venire with the following comments:
“Well, I want to talk to you for a few minutes before we get started back on voir dire. I was pretty upset yesterday afternoon with two particular jurors, and it was obvious, and this morning I brought [Prospective Juror L] in, and we had a nice talk this morning, and I understand a little bit more about her position. I probably misunderstood it to some degree. I’m anything but perfect, and I did feel she came in with an agenda, and after talking with her this morning, I’m convinced that she did not have an agenda. And I have decided to let her go, and you all saw that this morning, and that’s why I brought her in here.
“I also was not happy with [Prospective Juror D], and I want to make it very clear to all of the jurors here that I do not in any way, shape or fashion presume to judge anyone based on their religion, and my comments had nothing to do with her religion. We have had many Jehovah’s witnesses in the over 200 trials that I’ve had that I have released, quite frankly, without any problem at all. We’ve had Jehovah’s witnesses that have served on juries. That’s why I inquired into her beliefs to see where it came from. The reason I released her actually had nothing to do with her religious beliefs, but because of die fact she clearly had a bias sitting here and had prejudged the case or had prejudged Mr. Gaither based on nothing she had heard in this courtroom, and that’s one of the things that I try to make very clear to people, is that I try to malee very clear to people, is that you only learn — you can only malee decisions on the facts and the law. I was probably too cranky yesterday afternoon, I’m not sure why, but I was probably too cranky.
“My guess is that the reason I was a little cranky yesterday is that I’m looking at a room full of about 60 people who don’t want to be here any more than anybody else does, and I see you’re basically trying very hard to be pleasant about the prospect of spending two weeks in trial here. I also — I believe that other than military service, and we have a number of people who have done military service, jury duty is one of the most pure forms of service in your community that you can do. You know, especially in this time in our country, we’re seeing people who don’t just miss out on their job for a week or two because of jury duty. They’re missing out on their jobs and families so they can serve their country through their military service, and I think about the sacrifices that people malee in order to malee this a better place for us to live, and I’m just supremely grateful for that, and I know that it might seem silly to some of you that jury service is like that as well, but that is what jury service is. We’re making this community better. We’re making this a place where we can have people that will come in, listen to facts and decide a case based on the law and the facts.
“I hope that none of you ever need to appear as a party in court, but if you do, I hope that you have the benefit or you realize the great benefit you have that people are willing to come in and perform their service as jurors. So if I have misled any of you into thinking that I am some angry shrew up here, I am not. I really and truly am not, and if any of you believe for one single minute that you are not free to say what is true in answer to the lawyer’s questions, please raise your hand right now, and I will let you go. That is a promise to you. If you feel too intimidated to answer the lawyers’ questions honestly, raise your hand right now, and you’ve just got a free pass out of here, and I won’t berate you. I won’t be mad. I will be mad only at myself for having caused this environment that you would feel that way, so this is your opportunity. Anybody want to leave?”
Two venire members accepted the judge’s offer to leave without questions. Afterwards, the voir dire continued without further incident until the jury was selected.
Gaither characterizes the judge’s comments regarding Prospective Juror L as a “diatribe” against a prospective juror in defense of police officers. Gaither argues that he was prejudiced by the judge’s conduct because the judge’s comments bolstered the credibility of police officers.
An appellate court reviews a claim of judicial misconduct using an unlimited standard. An appellate court must determine the merits of an allegation of judicial misconduct by considering the par ticular facts and circumstances surrounding the allegation. Judicial misconduct warrants a new trial if it affirmatively appears that the conduct prejudiced the substantial rights of the complaining party. The party asserting judicial misconduct bears tire burden of showing prejudice. State v. Hayden, 281 Kan. 112, 116, 130 P.3d 24 (2006). If the judge’s comments can be construed properly and reasonably, rendering them unobjectionable, die remarks will not be regarded as prejudicial. State v. Patton, 280 Kan. 146, 182, 120 P.3d 760 (2005).
The judicial canons require a judge to perform the dudes of the judicial office with impartiality. Canon 3 (2006 Kan. Ct. R. Annot. 572). The expectations for judicial conduct stated in Canon 3 have been summarized as follows in State v. Miller, 274 Kan. 113, 128, 49 P.3d 458 (2002):
“The judge should be the exemplar of dignity and impartiality, should exercise restraint over judicial conduct and utterances, should suppress personal predilections, and should control his or her temper and emotions. The judge should not permit any person in the courtroom to embroil him or her in conflict and should avoid conduct which tends to demean tire proceedings or to undermine the judge’s authority in the courtroom.”
We recently reversed a defendant’s convictions for second-degree murder, attempted second-degree murder, and aggravated battery because the district judge had polluted the defendant’s trial with pervasive misconduct. See Hayden, 281 Kan. at 126. The district judge frequently interrupted the examination of witnesses, treated the parties and witnesses rudely and impatiently, failed to remain attentive to the proceedings, and exhibited open hostility toward counsel for both the prosecution and tire defense. Noting that the judge’s misconduct was not limited to an isolated incident, we commented that the judge had blatantly disregarded the admonition for judges to be sensitive to the grave responsibilities of tire courtroom. Hayden, 281 Kan. at 126. In Hayden, the district judge violated the mandate of Miller by disregarding his duty to exercise restraint over his judicial conduct and utterances, refusing to control his temper and emotions, and exhibiting conduct that demeaned the proceedings. See Miller, 274 Kan. at 128.
We also reversed a defendant’s convictions for rape and aggravated criminal sodomy based on comments made by the district judge during jury orientation because the comments impugned the defendant’s credibility. State v. Plunkett, 257 Kan. 135, 139, 891 P.2d 370 (1995). The district judge implied that he was suspicious of defense attorneys because they always sat at the table farthest from the bench. The judge further demeaned defense counsel by praising the prosecutor’s skills without acknowledging defense counsel’s skills. In addition, tire judge indicated that he knew secret, derogatory information about the defense counsel. Besides the improper comments during voir dire, the district judge interrupted defense counsel’s opening statement, questioned a witness in such a manner as to identify and emphasize the State’s theory of guilt, interjected an unwarranted comment during the cross-examination of the complaining witnesses, and stated that defense counsel was objecting for personal rather than legal reasons. Further impugning the defendant’s credibility, the judge sent the jury to deliberate, stating that the jury would have to carry out its unpleasant burden just like the court would have to carry out its final obligation in the case, implying that the jury would find the defendant guilty. The Plunkett court was especially concerned with the judge’s conduct that attacked the defendant’s credibility but considered the entire record in determining that the misconduct was reversible. 257 Kan. at 139, 143. The district judge in Plunkett violated the mandate of Miller by demonstrating his partiality for the State and failing to suppress his predilections. See Miller, 274 Kan. at 128.
Like the district judges in Hayden and Plunkett, the district judge in this case violated the mandate of Miller. She failed to control her temper and frustrations, declined to exercise control over her conduct and utterances, and allowed prospective jurors to embroil her in conflict. See Miller, 274 Kan. at 128. Consequently, we conclude that her comments constitute judicial misconduct. However, the judicial misconduct in this case is also distinguishable from that in both Hayden and Plunkett, where the misconduct polluted the entire trial. The district judge in this case regained control over her temper, emotions, conduct, and utter anees after the first day of the voir dire. She apologized to the jury venire and offered to excuse anyone who felt intimidated. The judge’s sincerity was evident when two prospective jurors accepted her offer and were excused without further questions. We believe the judge’s apology and offer to excuse prospective jurors purged the taint of the misconduct. From our review of the entire record, it does not appear that the judge’s misconduct prejudiced Gaither’s substantial rights.
Severance
Gaither claims that the district court improperly joined the charges against him into one complaint and one trial. Gaither raises three arguments. First, he argues that the joinder violated K.S.A. 22-3202(1). Second, Gaither asserts that the joinder denied him a fair trial by confusing the jury and precluding him from testifying. Third, Gaither contends that the improper joinder allowed the State to circumvent K.S.A. 60-455 and rely on propensity evidence.
The standard of review for severance issues has been abuse of discretion. State v. Bunyard, 281 Kan. 392, 403, 133 P.3d 14 (2006). However, we believe this standard oversimplifies the analysis for reviewing severance issues. The joining of charges into a single complaint is controlled by statute. As a result, we must begin our analysis with the language of the statute.
K.S.A. 22-3202(1) authorizes the State to charge multiple crimes as separate counts in one complaint, providing:
“(1) 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.” (Emphasis added.)
The application of K.S.A. 22-3202(1) is dependent on one of three conditions precedent. The district court must first determine whether any of the conditions precedent apply before exercising its discretion in allowing joinder. The district court’s legal conclusion regarding the application of one of the conditions precedent is dependent on the facts of the case. Thus, the district court’s factual findings are given deference. State v. Harris, 279 Kan. 163, 167, 105 P.3d 1258 (2005) (stating that an appellate court does not reweigh the evidence or pass on the credibility of witnesses but gives deference to the trial court’s factual findings). However, the determination of which condition precedent applies is a legal conclusion subject to de novo review. State v. Gunby, 282 Kan. 39, 47-48, 144 P.3d 647 (2006) (stating that when the issue involves die adequacy of the legal basis for the district court’s decision, the issue is reviewed using a de novo standard). After the district court makes a legal determination regarding whether one of the conditions precedent apply, K.S.A. 22-3202(1) gives it discretion to decide whether or not to join the charges. An appellate court reviews the final decision to join the charges using an abuse of discretion standard. State v. Bunyard, 281 Kan. 392, 403, 133 P.3d 14 (2006). The following summarizes the proper structure for analyzing a district court’s decision on the issue of joinder:
I. Determine which of the three conditions precedent the district court relied on:
a. same or similar character;
b. same act or transaction; or
c. two or more acts or transactions connected together or constituting parts of a common scheme or plan.
II. Determine whether there is substantial competent evidence to support the district court’s findings of fact, using a deferential standard;
III. Determine whether the district court properly concluded that a condition precedent had been met, using a de novo standard; and
IV. Determine whether the district court abused its discretion in allowing joinder.
For his first argument, Gaither contends that the joinder of the charges violated K.S.A. 22-3202(1). The district court relied on the “same or similar character” language in K.S.A. 22-3202(1) as the basis for joining the charges against Gaither. The State asserted that crack cocaine was the central theme underlying the commission of all of the crimes. Without making any factual findings, the district court denied Gaither’s motion to sever. We note that Gaither has not objected to the district court’s lack of factual findings. When a party fails to object to the lack of findings before the district court, an appellate court presumes that the district court made the factual findings necessary to support its decision. See In re Care & Treatment of Hay, 263 Kan. 822, 835, 953 P.2d 666 (1998). Thus, we can proceed directly to the legal conclusion regarding whether the crimes in this case were of the same or similar character without addressing whether the factual findings are supported by substantial competent evidence.
In State v. Barksdale, 266 Kan. 498, 510, 973 P.2d 165 (1999), this court upheld the defendant’s convictions on two counts of murder, concluding that there was no abuse of discretion in joining the two counts into one trial. Both murders remained unsolved for nearly 2 years until a jailhouse informant advised police that Barks-dale had confessed to both murders. Barksdale argued that the facts of each murder were significantly different. The first victim, Hosea Davis, was a friend of the defendant’s. Davis was found naked on his dining room floor with telephone cord wrapped around his neck. He died from a skull fracture caused by blunt force trauma. Semen indicated that Davis had engaged in sex with his assailant. The second victim, Jennifer Forgie, was a stranger to the defendant. Forgie was killed at the dry cleaning business where she worked. Forgie’s death resulted from a blunt trauma injury to her head, strangulation, and multiple stab wounds to her head and body. Forgie had not been sexually assaulted prior to her death. In addition to arguing that the crimes were factually distinct, the defendant argued that each murder required different evidence with only one witness testifying about both murders.
Contrary to Barksdale’s argument, the Barksdale court concluded that the murders were sufficiently factually similar to warrant joinder pursuant to K.S.A. 22-3202(1) because both murders were caused to facilitate robbery, both victims were killed in a substantially similar manner, both victims were found face down and tied with cords, and both murders were committed in the same neighborhood within a 9-month period. Although only one witness testified about both charges, the cases required the same mode of trial, tire same kind of evidence, and the same kind of punishment. 266 Kan. at 508-09.
Our comparison of the facts in this case with the facts in Barksdale leads us to conclude that the charges are of the same or similar character. The attempted murder of Barnes and the murder of Washington bear more similarity than the murders in Barksdale. Both of the victims in this case were drug dealers. Both of the shootings involved Gaither s quest for drugs. Both of the victims were shot in the chest with a 9 mm handgun, and both shootings occurred at private dwellings within a 5-day time period. Like the Barksdale case, only one witness testified about both shootings in this case. Nevertheless, both of Gaither s charges involved the same mode of trial, the same land of evidence, and the same land of punishment. Thus, we find no merit in Gaither s first argument that the joinder violated K.S.A. 22-3202(1) because the charges are not of the same or similar character.
Now that we have concluded that the district court properly applied the condition precedent in K.S.A. 22-3202(1), we must address Gaither s remaining arguments to determine whether the district court abused its discretion in denying Gaither s motion to sever. For his second argument, Gaither asserts that joining the attempted murder and felony-murder charges denied him a fair trial by confusing the jury and violating his right to testify about some but not all of the charges. The Barksdale court rejected the argument regarding jury confusion, noting that the jurors were instructed to consider each charge “separately on the evidence and law applicable to it; uninfluenced by [their] decision as to any other charge.” Barksdale, 266 Kan. at 510. The jury in this case received the same instruction, and the court can presume that the jury complied with the instruction. See State v. Donaldson, 279 Kan. 694, 700, 112 P.3d 99 (2005). Consequently, Gaither s claim of jury confusion does not warrant the severance of the charges against him.
Gaither asserts that he would have testified about the incident at the Holiday Inn, but he did not want to testify regarding the attempted murder charge or the felony-murder charge. Gaither’s assertion, however, does not advance his argument. Gaither’s sev erance argument is limited to the dissimilarity of the felony-murder and attempted murder charges. He raises no argument regarding the joinder of the aggravated kidnapping and felony obstruction of justice charges with the other charges. Consequently, Gaither’s assertion that he would testify about the aggravated kidnapping and felony obstruction charges does not support his argument that the felony-murder and attempted murder charges should have been severed. He has failed to demonstrate any special circumstances to support his claim that severance is mandated by his inability to testify regarding the events at the Holiday Inn.
Finally, Gaither claims that the district court should have severed the attempted murder and felony-murder charges because tire joint trial allowed the State to rely on his propensity to commit crime in violation of K.S.A. 60-455. Barksdale asserted a similar argument, claiming that the court should adopt a new test for joining charges based on whether the evidence of the separate crimes would be admissible pursuant to K.S.A. 60-455. The Barksdale court declined to adopt such a limiting test, stating: “Kansas case law and the provisions of K.S.A. 22-3202(1) make it clear that joinder is not dependent upon the other crimes being joined meeting the admissibility test set forth in K.S.A. 60-455.” 266 Kan. at 510. We agree with the Barksdale court. Applying the limitations of K.S.A. 60-455 to the joinder of charges would effectively nullify the application of K.S.A. 22-3202(1) when the crimes charged are of the same of similar character. We must assume that the legislature did not enact useless or meaningless legislation. State v. Deffebaugh, 277 Kan. 720, 722, 89 P.3d 582 (2004).
A district court abuses its discretion when no reasonable person would adopt the view taken by the court. Thus, the defendant has a heavy burden to establish reversible error once the court concludes that one of the conditions precedent set forth in K.S.A. 22-3202(1) is met. Gaither has failed to cariy his burden in this case. The district court did not err when it denied Gaither’s motion to sever.
Admission of the ATF Warrant for Barnes
Gaither argues that the district court prevented him from presenting evidence to support his theory of defense when it denied his motion to admit evidence of an ATF arrest warrant for Barnes. According to Gaither, the ATF warrant provided the jury with an alternate explanation for the 9 mm cartridge found on Howard’s front porch.
“A defendant is entitled to present his or her theory of defense. The exclusion of relevant, admissible, and noncumulative evidence, which is an integral part of the theory of defense, violates the defendant’s fundamental right to a fair trial. However, the defendant’s right to present a defense is limited by the statutory rules of evidence and the case law interpreting those rules. [Citation omitted.]” State v. Baker, 281 Kan. 997, 1008, 135 P.3d 1098 (2006).
When considering the admission or exclusion of evidence, a court must first consider whether the evidence is relevant to prove any material fact. Baker, 281 Kan. at 1008. Generally, all relevant evidence is admissible unless specifically excluded by statute. K.S.A. 60-407(f). Relevant evidence is evidence having any tendency in reason to prove any material fact. K.S.A. 60-401(b).
Gaither’s defense was a general denial. Highlighting the lack of physical evidence linking him to the scene of Barnes’ shooting, Gaither claimed that he was not present when Barnes was shot. Under Gaither’s theory, it was unnecessary to provide an alternative explanation for the presence of a 9 mm cartridge. If the jury had believed that Gaither was not present when Barnes was shot, it could have inferred that tire cartridge was left by the unidentified person who shot Barnes. If the jury believed the State’s witnesses, who identified Gaither as the shooter, the possibility that Barnes left the cartridge on the porch does not bolster Gaither’s defense. Therefore, the evidence was not relevant to any material facts, and the district court properly excluded it.
K S.A. 60-455 Evidence
Gaither argues that the district court should not have admitted Holloman’s testimony regarding the aggravated robbeiy that occurred the day before Barnes was shot. Gaither asserts that the evidence was admitted in violation of K.S.A. 60-455. However, Gaither failed to object to the admission of the evidence and preserve the issue for appeal. See K.S.A. 60-404; Baker, 281 Kan. at 1002. During closing arguments, Gaidier’s trial counsel attacked Holloman’s credibility by highlighting Holloman’s failure to report the alleged aggravated robbeiy to police. We believe Gaither’s counsel did not object to tíre evidence for strategic reasons and, thus, will not address the merits of the issue.
Instruction for Prior Bad Acts
Gaither next argues that the limiting instruction for the other crimes evidence did not restrict the consideration of the evidence to the attempted first-degree premeditated murder charge. Gaither claims that the district court committed reversible error by allowing the jury to consider Holloman’s testimony for the remaining charges. However, Gaither did not object to the omission of tiris restriction in the instruction. Recently, we held that the failure to give a limiting instruction for evidence of other crimes or bad acts does not require automatic reversal. Gunby, 282 Kan. at 58. When the complaining party fails to request the instruction or object to its omission, the failure to give the instruction is reversible only if clearly erroneous. “ Instructions are clearly erroneous only if the reviewing court is firmly convinced tiiat diere is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.’ ” Gunby, 282 Kan. at 58-59.
Gaidier argues that the jury would not have found him guilty of killing Washington if it had been properly instructed regarding the use of die prior crimes evidence. We find no merit in Gaither’s argument. The testimony from several witnesses overwhelmingly supports the jury’s verdict on the felony-murder charge without requiring the jury to consider Holloman’s testimony. There is not a real possibility that die jury would have rendered a different verdict. Thus, die district court’s failure to restrict the consideration of Holloman’s testimony to die attempted first-degree premeditated murder charge was not clearly erroneous.
Lesser Included Instruction
Gaither argues that the district court should have instructed the jury to consider aggravated battery as a lesser included crime for attempted first-degree premeditated murder. Gaither requested the instruction, so we consider the denial of his request in a light most favorable to him. See State v. Oliver, 280 Kan. 681, 703, 124 P.3d 493 (2005).
K.S.A. 2006 Supp. 21-3107(2) defines lesser included crimes as:
“(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).”
While acknowledging that aggravated battery is not a lesser included crime of attempted first-degree murder pursuant to K.S.A. 2006 Supp. 21-3107(2)(b), Gaither relies on K.S.A. 2006 Supp. 21-3107(2)(a), arguing that aggravated batteiy and attempted murder are the same crime and that aggravated batteiy is simply a lesser degree of attempted murder. See State v. Daniels 223 Kan. 266, 271-72, 573 P.2d 607 (1977) (holding that aggravated battery is not a lesser included crime of attempted first-degree murder under the elements test). According to Gaither, “the original impetus for both crimes stemmed from the same types of actions.”
Gaither relies on Andrews v. State, 679 So. 2d 859 (Fla. Dist. App. 1996), and People v. Lopez, 245 Ill. App. 3d 41, 614 N.E.2d 329 (1993), for the proposition that other courts consider aggravated batteiy and attempted murder to be the same crime. However, neither case supports his proposition. In Andrews, the Florida Court of Appeals noted that aggravated battery, is a permissive lesser-included offense for attempted first-degree murder but reversed the defendant’s conviction because the trial court instructed on a version of aggravated battery that was not supported by the charging document. 679 So. 2d at 859. Similarly, the Lopez court summarily noted that aggravated batteiy is a lesser included offense of attempted first-degree murder but held that an instruction for aggravated batteiy was not warranted by the evidence. 245 Ill. App. 3d at 47. Although, both of these courts considered aggravated battery to be a lesser-included crime of attempted murder, these cases do not explain the analysis for that conclusion. Consequently, neither of these cases stand for the proposition that aggravated battery is the same crime as attempted first-degree murder.
Gaither fails to cite any other authority to support his proposition. A basic examination of the statutory definitions for first-degree murder and aggravated batteiy reveal a distinction between the two. First-degree murder involves killing and aggravated batteiy involves bodily harm. See K.S.A. 21-3401; K.S.A. 21-3414. Each crime is defined by the harm caused rather than the act performed. Because of this distinction, first-degree murder and aggravated battery are not the same crime. The definition for attempt relies on the definition of the underlying but uncompleted crime and requires a specific intent to commit the underlying crime. K.S.A. 2006 Supp. 21-3301. The attempt statute, however, does not alter the basic definition for the underlying crime. Thus, attempted first-degree murder is not converted into the same crime as aggravated battery merely by adding the attempt elements to the first-degree murder elements. Accordingly, aggravated battery does not qualify as a lesser-included crime of attempted first-degree murder under K.S.A. 2006 Supp. 21-3107(2)(a).
Cumulative Errors
Gaither claims that he was denied a fair trial because the district court committed cumulative errors that alone may have been harmless but, when viewed under the totality of the circumstances, prejudiced his trial.
An appellate court looks at the totality of tire circumstances to determine whether cumulative errors have substantially prejudiced the defendant and denied his or her right to a fair trial. If tire evidence against the defendant is overwhelming, no prejudicial error may be found under the cumulative effect rule. State v. Plaskett, 271 Kan. 995, 1022, 27 P.3d 890 (2001).
Gaither relies on the other trial errors raised in this appeal to establish the cumulative errors. However, Gaither established only one error in the district court proceedings and tire error did not affect his substantial right to a fair trial. Accordingly, there is no reason to reverse Gaither’s convictions based on cumulative trial errors.
Sentence
Gaither argues that the district court improperly relied on his criminal history score in determining his sentence because his criminal history had not been proven to a jury beyond a reasonable doubt. He acknowledges that this claim has been resolved against him but argues that the court should reconsider its prior decisions based on Shepard v. United States, 544 U.S. 13, 161 L. Ed. 2d 205, 125 S. Ct. 1254 (2005). We have previously concluded that Shepard does not require the reversal of our prior decisions. State v. Gonzalez, 282 Kan. 73, 117-18, 145 P.3d 18 (2006). Thus, we find no merit in Gaither’s argument.
Gaither’s convictions and sentences are affirmed. | [
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The opinion of the court was delivered by
Beier, J.:
Plaintiffs filed an inverse condemnation action against the City of Ottawa (City) and the Secretary of the Kansas Department of Transportation (KDOT), alleging that a highway construction project on the south and east side of Ottawa unreasonably increased the plaintiffs’ amount of indirect travel and left the plaintiffs’ real estate with unreasonably restricted access to the system of state highways. This appeal arises out of the district court’s summary judgment in favor of defendants. Plaintiffs urge us to reverse the district court and to determine that attorney fees are appropriate under K.S.A. 77-701 et seq.
Factual and Procedural Background
Plaintiffs Michal Korytkowski and TT & T Salvage and Towing Services, Inc., owners of a motel and a tow shop, filed this inverse condemnation action, alleging that a highway construction project so unreasonably increased indirect travel to their properties and so unreasonably restricted access from their properties to the system of state highways that it constituted a taking of their property without just compensation in violation of the Kansas Private Property Protection Act, K.S.A. 77-701 et seq.; the United States Constitution; and the Kansas Constitution.
After a year of discovery, plaintiffs filed a motion for summaiy judgment. Within 2 weeks, each defendant also had filed a summary judgment motion. Defendants’ motions contained identical statements of fact concerning the construction projects, and these statements of fact were uncontroverted by plaintiffs. A summary of the pertinent facts follows.
KDOT undertook an improvement project on Interstate 35 along the south and east side of Ottawa, with the primary goal of reconstructing 1-35 from Eisenhower Road northeast past K-68 Highway along the south and east.
The project totally rebuilt 1-35 from the soil up. In addition to the reconstruction of 1-35 itself, the project (1) removed the bridge carrying US Business 50 Highway (Old Business 50) over 1-35 and the associated partial interchange, a half-diamond with only a southbound exit and a northbound entrance; (2) constructed a culde-sac on the southern terminus of Old Business 50; (3) removed pavement south of the cul-de-sac to Eisenhower Road; (4) lengthened acceleration and deceleration lanes on and off of the entrance and exit ramps at Eisenhower Road and 1-35; and (5) converted the US-59 interchange on 1-35 from a cloverleaf to a standard diamond.
KDOT had proposed building frontage roads as part of its project, but the City and Franklin County (County) objected to those concepts. After initially opposing removal of the Old Business 50 bridge, once they understood that KDOT would not build a frontage road along the interstate and that KDOT would participate with the City in making various other improvements, the City and County eventually agreed to the removal of the bridge.
As a result of the project, Old Business 50 was reclassified and removed from the state highway system.
Before the project was undertaken, defendants’ studies demonstrated that half diamond interchanges such as that at Old Business 50 and 1-35 could be confusing to the unfamiliar driver. In addition, KDOT concluded that the Old Business 50 bridge was too short to accommodate horizontal clearance for a new interchange, and too low for the vertical clearance necessary to meet new design criteria and solve drainage problems in the area. Removal of tire bridge permitted KDOT to extend the entrance and exit ramps of the two adjacent full interchanges, thus improving weave, acceleration, and deceleration at those points.
KDOT participated with the City in other nearby street improvements, including intersection reconstruction at US-59 and 23rd Street; removal of Princeton Bridge and an associated roadway at the Old Business 50 and US-59 connection near 17th Street; and asphalt overlays on portions of 23rd Street, Eisenhower Road, and Old Business 50.
To support removal of the Princeton Bridge over US-59, the City relied on a 1995 analysis and recommendations concerning Ottawa traffic planning from the engineering and architecture firm of Bucher, Willis and Ratliff (BWR). The BWR report calculated potential advantages to the City, including cost decreases, safety increases, and opportunities for development. It also asserted that the existing road configuration at US-59 and Old Business 50 created “driver confusion,” caused “continuity problems,” and created “excess circulation.”
The following drawings illustrate the road configurations before and after the KDOT and City projects.
Plaintiffs’ businesses are the only two located on Old Business 50 south of 23rd Street, essentially between construction sites for the projects. The properties are one-eighth to one-quarter mile north of the old partial interchange between Old Business 50 and 1-35, and nearly three-quarters of a mile south of the former Princeton Bridge at US-59.
KDOT had several public meetings with the City and County and local property owners to discuss the improvements; plaintiffs routinely attended these meetings; and at least once they voiced concern about the impact on their businesses.
In its motion for summary judgment, KDOT asserted that its policy is to identify and negotiate with landowners for the purchase of property actually necessary for acquisition. It stated that it looks at all options before making a decision, but it does not perform “a full-blown, formal impact study” on every property within a project unless warranted under the circumstances. It did not perform an impact study regarding the effect of the projects on plaintiffs’ properties because no land was acquired from them. Moreover, according to KDOT’s design team of engineers, the improvements would not create an unreasonable amount of additional indirect travel for plaintiffs or deny them reasonable access to the surrounding road network.
Plaintiffs disputed the bases for and the findings contained in the BWR report. Plaintiffs also took issue with the suggestions that the half-diamond interchange at Old Business 50 and 1-35 was dangerous and/or confusing to drivers, that it was rendered unnecessary by the full movement interchanges at Eisenhower Road and at US-59, and that those interchanges provided reasonable access. However, plaintiffs offered no evidence rebutting facts or data in the BWR report or the conclusions of KDOT’s studies.
Plaintiffs also disputed KDOT’s conclusions that the project did not result in an unreasonable amount of indirect travel and that the project left them with reasonable access. Plaintiffs noted that, as a result of the construction, their direct north connection via Old Business 50 to downtown Ottawa is “gone”; the Princeton bridge is “gone”; their properties are now on a “dead-end” cul-desac; the “easy access to 1-35 ... is gone”; and “[tjhere is no through traffic” passing the properties as there was previously. By way of their own affidavits, plaintiffs suggested that “some portion” of Korytkowsld’s motel business was truck and large vehicle traffic that “may have chosen to stay at the motel because they would not have to drive through the City if they exited [at 1-35 and Old Business 50],” implying that tire projects had caused Korytkowski to lose business. TT & T Towing asserted that it had been unable to rent its offices since the construction, presumably as a result of the construction projects.
The district court did not set out any specific findings of fact but noted that no “significant facts” were in dispute. The district judge concluded that “the action of the defendants was not a taking as provided under the Laws of the State of Kansas or the Constitution of the United States.”
Standard of Review
This court’s standard of review when a motion for summary judgment has been granted is well established and often recited:
“ ‘ “Summary judgment is appropriate when tire pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.” [Citations omitted.]’ ” Scott v. Hughes, 281 Kan. 642, 644, 132 P.3d 889 (2006).
To establish a claim for inverse condemnation, a party must establish an interest in the real property and a taking. Deisher v. Kansas Dept. of Transportation, 264 Kan. 762, 772, 958 P.2d 656 (1998). The question of whether there has been a compensable taking is one of law. 264 Kan. at 772.
Analysis
We agree with the district court and the parties that this case involves no genuine issue of material fact. The plaintiffs have an interest in the subject properties; there was no physical taking of plaintiffs’ properties; and the projects left the plaintiffs with the same access to the abutting roadway, i.e., Old Business 50, that they had before the project. Plaintiffs’ access to the nearby highway system was changed, not for the better.
The only dispute centers on the legal question of whether the indirect travel now required to access the nearby highway system means there was a compensable taking of plaintiffs’ property for purposes of K.S.A. 77-701 et seq. or the United States or Kansas Constitutions. Although the plaintiffs do not clearly differentiate them in their briefs, they advance two arguments to persuade us there was a taking: (1) The defendants’ interference with plaintiffs’ “right of access” to a system of roadways constituted a taking; and (2) the defendants unreasonably “restricted access” to plaintiffs’ properties, which constituted a talcing. These arguments are distinct under Kansas law. We discuss each in turn.
Right of Access
“ ‘[Rjight of access’ is traditionally defined as an abutting landowner’s common-law right of access from the landowner’s property to abutting public roads.” City of Wichita v. McDonald’s Corp., 266 Kan. 708, 718, 971 P.2d 1189 (1999); accord Brock v. State Highway Commission, 195 Kan. 361, 370, 404 P.2d 934 (1965). When the government actually blocks or takes away existing access to and from property and an abutting road, the landowner is generally entitled to compensation. 266 Kan. at 718; see Kohn Enterprises, Inc. v. City of Overland Park, 221 Kan. 230, 559 P.2d 771 (1977) (upholding finding of damages for reduction in property value based on ehmination of access point to abutting highway); McCall Service Stations, Inc. v. City of Overland Park, 215 Kan. 390, Syl. ¶ 4, 524 P.2d 1165 (1974) (landowner compensated for diminution of value when one entrance to business from abutting highway permanently closed).
This does not qualify as a “right of access” case. Before defendants’ projects, plaintiffs’ properties had direct access to Old Business 50. They still have direct access to Old Business 50. They never had direct access to 1-35 or US-59; rather, the properties were located one-eighth to one-quarter mile from a partial interchange at 1-35 and three-quarters of a mile from the junction with US-59. Plaintiffs had only indirect access to these highways and no vested right to it. See Teachers Insurance & Annuity Ass’n of America v. City of Wichita, 221 Kan. 325, 335, 559 P.2d 347 (1977) (“Access may be defined as the right vested in the owner of land which adjoins a road or other highway to go and return from his own land to the road or highway without unreasonable interference. Such a right to be of any substantial utility must necessarily include the owner’s invitees and licensees.”).
Restricted Access
Plaintiffs’ “restricted access” argument asserts that, even though their properties were not physically taken and their access to the abutting roadway was not disturbed, the construction forced them and their patrons to follow such a “tortuous and circuitous route” to and from their properties that we must hold a taking occurred.
This court has clearly held that “[a]n abutting owner has no right to the continuation of a flow of traffic from nearby highways to the owner’s property.” McDonald’s, 266 Kan. at 718; see Garrett v. City of Topeka, 259 Kan. 896, 922, 916 P.2d 21 (1996); Teachers Insurance & Annuity Ass’n of America, 221 Kan. at 335; Kohn, 221 Kan. at 232.
When a landowner’s access to an abutting roadway has been taken, there has been an exercise of eminent domain that requires just compensation. When a landowner’s access to nearby roadways has been altered or restricted through die regulation of traffic flow, there has been an exercise of the government’s police power that must have been reasonable. McDonald’s, 266 Kan. at 718, 722. In this latter situation, there is no taking, and tiius an action for inverse condemnation cannot succeed.
We recendy applied these rules in Kau Kau Take Home No. 1 v. City of Wichita, 281 Kan. 1185, 135 P.3d 1221 (2006).
In that case, plaintiffs brought an inverse condemnation action against the City of Wichita (City), alleging, inter alia, that the City’s road construction project eliminating an intersection and turning the road on which the plaintiffs’ restaurant was located into a culde-sac significantly altered the route of patrons and thus resulted in a compensable talcing. On appeal from summary judgment in favor of the City, the plaintiffs argued that the taking resulted from the restriction of the right of access to their property.
We affirmed the district court, holding: (1) An abutting property owner has no right to the continuation of a flow of traffic to and from nearby highways; (2) the regulation of traffic flow does not involve a talcing if the government exercised its police power to promote the safety, peace, health, morals, or general welfare of the people; (3) State action resulting in a mere diminution of property value is not a taking; and (4) the increased driving distance between a landowner’s property and nearby roadways was not a taking. Kau Kau, 281 Kan. 1135, Syl. ¶¶ 3-5.
The Kau Kau opinion cited the ample precedent we have cited here, relying heavily on the McDonald’s case. In McDonald’s, 266 Kan. 708, the City of Wichita (City) instituted an eminent domain action to acquire a portion of property at the comer of Dugan Street and West Kellogg Street that belonged to Wal-Mart. As part of its improvement project, the City eliminated the intersection of West Kellogg and Dugan by installing an overpass without an exit onto Dugan. It also converted the outer roads on either side of West Kellogg/US-54 to one-way rather than two-way roads. Before the project, Wal-Mart had two entrances from Dugan and two entrances from West Kellogg. After the project, Wal-Mart continued to have two entrances from Dugan and two entrances from West Kellogg; however, patrons had to travel as much as 3 additional miles to reach Wal-Mart’s property. Wal-Mart sought an increase in its condemnation award because of diminution in its property value based on circuity of access. It claimed the City’s restrictions to its access were unreasonable.
Noting that Wal-Mart had direct access to the same streets before and after the project, and that the City had not closed any of Wal-mart’s access points, we concluded Wal-Mart could not consider the restricted access in determining the market value of the property. We also stated that Wal-Mart would not have had a claim for compensation based only on the restriction of its access to surrounding highways. Kau Kau, 281 Kan. at 1192.
Kau Kau and McDonald’s guide the disposition of the restricted access issue in this case. They imply, without stating explicidy, diat plaintiffs cannot demonstrate the existence of a taking because of restricted access to nearby roadways, and then they explore the reasonableness of the police power exercise. The further implication is that an unreasonable exercise of such power might support a claim, just not a claim under an inverse condemnation theory. Although reasonableness is the standard by which we determine whether a government’s exercise of police power is valid, reasonableness is not the appropriate standard to determine whether a government action affecting real property in private hands constitutes a taking.
Here, the defendants presented ample evidence to support tire reasonableness of the projects, and plaintiffs presented no evidence to rebut it, beyond their own unsupported and conclusory affidavits. See Teachers Insurance & Annuity Ass’n of America, 221 Kan. 325. Plaintiffs still enjoy direct access to Old Business 50. And, despite the projects’ conversion of Old Business 50 into a cul-desac to the south of plaintiffs’ properties, Old Business 50 still meets 23rd Street to the north one-eighth to one-quarter of a mile from plaintiffs’ driveways. On 23rd Street, plaintiffs can reach Eisenhower to the west or US-59 to the east, each about one-half of a mile away from the Old Business 50/23rd Street comer. Eisenhower and US-59 access full interchanges to 1-35. Ultimately, the properties are less than three-quarters of a mile from one new full interchange at 1-35, and are one and one-quarter miles from another. Plaintiffs also can still access US-59 farther north. The additional travel required after the projects is less than the 2 miles at issue in Kau Kau and the 3 miles at issue in McDonald’s, both of which distances were determined to be reasonable. Kau Kau, 281 Kan. at 1188; McDonald’s, 266 Kan. at 710-11.
Attorney Fees
K.S.A. 77-709 permits a court to award reasonable attorney fees and expenses “to an owner of private property who successfully establishes that a governmental action constitutes a taking of such owner’s private property.” Such an award is predicated on plaintiffs prevailing. Because plaintiffs cannot establish a taking, we need not address questions raised in the parties’ briefs concerning the applicability of this statute. See Smith v. Martens, 279 Kan. 242, 244, 106 P.3d 28 (2005).
Affirmed.
Allegrucci, J., not participating.
Lockett, J., Retired, assigned. | [
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In a letter dated March 2, 2007, to the Clerk of the Appellate Courts, respondent Carlton W. Kennard, of Pittsburg, Kansas, an attorney admitted to the practice of law in the state of Kansas, surrendered his license to practice law, pursuant to Supreme Court Rule 217 (2006 Kan. Ct. R. Annot. 308).
At the time the respondent surrendered his license, there were two cases pending before the Supreme Court both of which were set with the court as a result of a formal hearing before the Kansas Board for Discipline of Attorneys. The hearing panel found by clear and convincing evidence that the respondent violated numerous rules including KRPC 1.3 (2006 Kan. Ct. R. Annot. 371) (failure to act in a diligent manner), KRPC 3.2 (2006 Kan. Ct. R. Annot. 462) (failure to expedite litigation), KRPC 1.15 (2006 Kan. Ct. R. Annot. 435) (commingling client funds with law firm assets), KRPC 3.4 (2006 Kan. Ct. R. Annot. 472) (failure to comply with discovery), and KRPC 8.4(c) (2006 Kan. Ct. R. Annot. 510) (engaging in dishonest conduct by systematically embezzling partnership funds totaling nearly $100,000). In addition, the hearing panel found by clear and convincing evidence that the respondent failed to cooperate in both of the disciplinary cases by failing to answer letters of the investigator and failing to file an answer to the formal complaint. The hearing panel unanimously recommended disbarment.
This court, having examined the files of the office of the Disciplinary Administrator, finds that the surrender of the respondent’s license should be accepted and that the respondent should be disbarred.
It Is Therefore Ordered that Carlton W. Kennard be and he is hereby disbarred from the practice of law in Kansas and his license and privilege to practice law are hereby revoked.
Dated this 12th day of March, 2007.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Carlton W. Kennard from the roll of attorneys licensed to practice law in Kansas.
It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to the respondent, and that the respondent forthwith shall comply with Supreme Court Rule 218 (2006 Kan. Ct. R. Annot. 314). | [
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Per Curiam:
This is an original proceeding in discipline filed by the Disciplinary Administrator against the respondent, Thomas E. Gackle, an attorney admitted to the practice of law in Kansas in 1992. His most recent address registered with the Clerk of the Appellate Courts is Plymouth, Michigan.
A panel of the Kansas Board for Discipline of Attorneys held a hearing on the formal complaint on September 19, 2006. The respondent stipulated and the panel found that respondent had violated Kansas Rules of Professional Conduct (KRPC) 8.4(a) (2006 Kan. Ct. R. Annot. 510) (professional misconduct) and 8.4(b) (committing a criminal act). The panel recommended the discipline of indefinite suspension, retroactive from October 13, 2005. The respondent has filed no exceptions to the final hearing report.
The hearing panel made the following findings of fact and conclusions of law.
“FINDINGS OF FACT
“2. On October 9, 1987, the Missouri Supreme Court admitted the Respondent to practice law. On April 24,1992, the Kansas Supreme Court admitted the-Respondent to the practice of law. The Respondent primarily practiced law in Missouri.
“3. From the summer of 1998, through the fall of 2000, the Respondent viewed, collected, and possessed adult and child pornography.
“4. On October 19, 2000, Dianna J. Lord, the Respondent’s employee, opened a locked storage trunk in a storage locker used by the Respondent to store excess business supplies and documents. Inside the trunk, Ms. Lord discovered pictures of nude children. Ms. Lord delivered the trunk to agents of the Federal Bureau of Investigation. Later, the Respondent consented to a search of the trunk by the FBI agents.
“5. Also in October, 2000, Ms. Lord discovered child pornography on the Respondent’s computer.
“6. On May 23, 2001, the FBI agents sought and obtained the Respondent’s consent to search his law office, located in Independence, Missouri. During the search, the FBI agents examined the Respondent’s computer. An analysis of the hard drive from the Respondent’s computer by a computer specialist-forensic examiner revealed that numerous images of child pornography had been deleted from the computer. The deleted images could not be retrieved from the hard drive. In addition to the deleted images, the FBI Agents located twelve images of child pornography that remained on the Respondent’s computer’s hard drive.
“7. After the investigation was complete, prosecutors from the United States Attorney’s Office for the Western District of Missouri, and counsel for the Respondent reached an agreement regarding tire resolution of the investigation. As a result, the Respondent entered into a diversion agreement for unlawfully possessing child pornography, a felony crime.
“8. The Respondent successfully completed the terms and conditions of tire diversion agreement.
“9. . . . Ms. Lord filed complaints with the attorney disciplinary authorities in Kansas and in Missouri. Following a lengthy period of investigation, on February 1, 2006, the Missouri Supreme Court suspended the Respondent’s license for a period of six months.
“CONCLUSIONS OF LAW
“1. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 8.4(a) and KRPC 8.4(b), as detailed below.
“2. Kan. Sup. Ct. R. 202 provides that ‘[a] final adjudication in another jurisdiction that a lawyer has been guilty of misconduct shall establish conclusively the misconduct for purposes of a disciplinary proceeding in this state.’ Based upon tire Respondent’s stipulation to the facts alleged in the Disciplinary Administrator’s Formal Complaint, the evidence presented at the hearing, including Disciplinary Administrator’s Exhibits 5, 6, and 7, and pursuant to Kan. Sup. Ct. R. 202, the Hearing Panel concludes that tire Respondent engaged in misconduct and violated KRPC 8.4(a) and KRPC 8.4(b).
“3. Kan. Sup. Ct. R. 202 [2006 Kan. Ct. R. Annot. 240] also provides that:
‘A certificate of a conviction of an attorney for any crime or of a civil judgment based on clear and convincing evidence shall be conclusive evidence of the commission of that crime or civil wrong in airy disciplinary proceeding instituted against said attorney based upon the conviction or judgment. A diversion agreement, for the purposes of any disciplinary proceeding, shall be deemed a conviction of the crimes originally charged.’
Accordingly, pursuant to Kan. Sup. Ct. R. 202, fhe Respondent’s participation in tire diversion program is deemed a conviction of possession of child pornography, a felony crime.
“4. 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.
(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.’ KRPC 8.4.
In tins case, the Respondent admitted he possessed child pornography and he entered into a diversion agreement which, pursuant to Kan. Sup. Ct. R. 202, is deemed a conviction of possessing child pornography. Furthermore, the Respondent stipulated that he violated KRPC 8.4(a) and KRPC 8.4(b). Finally, pursuant to Kan. Sup. Ct. R. 202, the documents from the Missouri Supreme Court conclusively establish that the Respondent violated KRPC 8.4(a) and KRPC 8.4(b). Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 8.4(a) and KRPC 8.4(b).”
In making its recommendation as to the appropriate discipline to be imposed, the panel stated the following:
“In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, tire 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 maintain personal integrity.
“Mental State. The Respondent intentionally violated his duty.
“Injury. As a result of the Respondent’s misconduct, tire Respondent caused actual harm to the legal profession.
“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 tire following aggravating factors present:
“A Pattern of Misconduct. The Respondent engaged in a pattern of misconduct by possessing child pornography over an extended period of time.
“Refusal to Acknowledge Wrongful Nature of Conduct. While tire Respondent acknowledged his misconduct and while he attempted to accept responsibility for his actions, the respondent minimized his misconduct by first blaming a friend that introduced him to pornography, second, by blaming his vindictive employee, and third, by blaming Iris attorney. The Hearing Panel concludes that the Respondent failed to accept full responsibility for his actions.
“Illegal Conduct. Possessing child pornography is a felony crime. Accordingly, the Hearing Panel concludes that the Respondent engaged in serious illegal conduct.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined.
“Remorse. At the hearing on the Formal Complaint, the Respondent attempted to express remorse for engaging in the misconduct. However, the Respondent’s remorse fell short when he continued to blame his friend for introducing him to pornography, his vindictive employee, and his attorney.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘Suspension is generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer’s fitness to practice.’ Standard 5.12.
“The Disciplinary Administrator recommended that the Respondent be indefinitely suspended.
“Based upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be indefinitely suspended from the practice of law in the state of Kansas. The Hearing Panel further recommends that the date of the suspension be retroactive to October 13, 2005, when the Respondent was suspended for failing to pay the annual attorney registration fee. Finally, the Hearing Panel recommends that, should the Respondent seek reinstatement, at the hearing held pursuant to Kan. Sup. Ct. R. 219, he be required to establish that he has been reinstated in the state of Missouri.”
DISCUSSION
In a disciplinaiy proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by substantial, clear, convincing, and satisfactory evidence. In re Landrith, 280 Kan. 619, 636, 124 P.3d 467 (2005); Supreme Court Rule 211(f) (2006 Kan. Ct. R. Annot. 284) (misconduct to be established by clear and convincing evidence).
We conclude the panel’s findings of fact are supported by clear and convincing evidence and support the panel’s conclusions of law. In so doing, we note:
First: Respondent stipulated he had violated KRPC 8.4(a) and (b) as alleged in the formal complaint.
Second: Respondent filed no exceptions to the final hearing report. Therefore, the hearing panel’s final report is deemed admitted. Supreme Court Rule 212(c) (2006 Kan. Ct. R. Annot. 295); In re Devkota, 280 Kan. 650, 655, 123 P.3d 1289 (2005).
Third: Under Supreme Court Rule 202 (2006 Kan. Ct. R. Annot. 239), Missouri’s final adjudication that tire respondent violated the equivalent to KRPC 8.4(a) and (b) conclusively establishes that the respondent violated those provisions.
Fourth: Under Supreme Court Rule 202, the respondent’s diversion constitutes a conviction of the felony crime of child pornography, thus establishing a violation of KRPC 8.4(b), which provides that it is professional misconduct to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects. We note that tire respondent contended before the panel that his criminal conduct did not adversely affect his professional duty to his clients. However, we recently held in In re Laskowski, 282 Kan. 710, 713-14, 147 P.3d 135 (2006), that although a conviction of a third-time felony DUI is not a breach of professional duty to a client, it violates KRPC 8.4(b) because it is a violation of the attorney’s primary duty to the court and the bar, and it erodes the public confidence in tire judicial system. See also In re Ketter, 268 Kan. 146, 992 P.2d 205 (1999), in which this court faced the question whether an attorney’s misdemeanor conviction for lewd and lascivious behavior constituted a violation of KRPC 8.4(b). The court recognized that lewd and lascivious behavior may not always relate to the attorney’s fitness to practice law, but stated that such a determination is to be made under the facts of each case. However, because tire attorney in that case had a pattern of repeated instances of indecent exposure, his conduct reflected adversely on his fitness to practice law under KRPC 8.4(g) (engaging in any other conduct that adversely reflects on fitness to practice law). 268 Kan. at 154.
With respect to the discipline to be imposed, the panel’s recommendation that the respondent be indefinitely suspended from the practice of law in the state of Kansas is advisory only and shall not prevent the court from imposing discipline greater or lesser than that recommended by the panel or the disciplinary administrator. Supreme Court Rule 212(f) (2006 Kan. Ct. R. Annot. 295).
We agree with the panel that the appropriate discipline to be imposed herein is indefinite suspension with the additional condition that should respondent seek reinstatement pursuant to Rule 219 (2006 Kan. Ct. R. Annot. 327), he must establish that he has been reinstated to the practice of law in the state of Missouri. We disagree with the panel’s recommendation that the date of indefinite suspension should be retroactive to October 13, 2005. Respondent’s license to practice law in Kansas was suspended on that date for failure to pay the annual attorney registration fee. The 2005 suspension had nothing to do with the proceedings herein, as opposed to a temporary suspension pursuant to Supreme Court Rule 203 (2006 Kan. Ct. R. Annot. 243).
It Is Therefore Ordered that Thomas E. Gackle be indefinitely suspended from the practice of law, effective the date of this opinion, in accordance with Supreme Court Rule 203(a)(2).
It Is Further Ordered that respondent forthwith comply with Supreme Court Rule 218 (2006 Kan. Ct. R. Annot. 314), that the costs of these proceedings be assessed to the respondent, and that this opinion be published in the official Kansas Reports. | [
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On June 3, 2005, this court suspended the respondent, Rebecca Arlene Ware, from the practice of law in Kansas for a period of 1 year. See In re Ware, 279 Kan. 884, 112 P.3d 155 (2005). Before reinstatement, the respondent was required to pay the costs of the disciplinary action and comply with Supreme Court Rule 218 (2006 Kan. Ct. R. Annot. 314).
The Disciplinary Administrator’s office has verified that the respondent has fully complied with the conditions imposed upon her. This court finds that the respondent, Rebecca Arlene Ware, should be reinstated to the practice of law in the state of Kansas.
It Is Therefore Ordered that the respondent be reinstated to the practice of law in the state of Kansas as of the date of this order.
It Is Further Ordered that this order of reinstatement shall be published in the official Kansas Reports. | [
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The opinion of the court was delivered by
Kaul, J.:
This is an action to determine the right of an illegitimate child to inherit by intestate succession from an alleged paternal grandparent.
The essential facts are not in dispute. Elizabeth McKay, the decedent whose estate is involved in this litigation, died intestate on November 30, 1965. The decedent was survived by four sons and one daughter who, together with the administrator of her estate, are the appellants herein. One son, Hubert McKay preceded Elizabeth McKay in death. Hubert was born May 29, 1897, and died October 21, 1918. He was never married.
Appellants admit that on October 5, 1917, slightly more than one year preceding his death, Hubert McKay was determined to be the father of Gladys Davis in a bastardy proceeding in the district court of Doniphan County. Appellants further concede that if the right to inherit is otherwise established an illegitimate child may inherit from a grandparent by representation of a predeceased parent whom he replaces.
The right of appellee to inherit from her intestate paternal grandmother, Elizabeth McKay, depends upon the application of pertinent statutes to the facts which we have recited. In simple terms, appellants claim the rights of appellee must be determined under the law existing in 1918 when paternity was determined. Appellee, on the other hand, contends her rights are governed by the statutes in effect on the date of the death of Elizabeth McKay in 1965.
The right of an illegitimate child to inherit through its mother was established by the territorial legislature (G. S. 1855, Chap. 60, Sec. 8) and extended, under certain conditions, with respect to the father by the territorial legislature in 1859 (G. S. 1862, Chap. 80, Sec. 24). No substantial change was made until the adoption of the Probate Code in 1939.
The governing statute in effect in 1918 was G. S. 1915, § 3845 which reads:
“Illegitimate children, when to inherit from father. § 22. They shall also inherit from the father whenever they have been recognized by him as his children; but such recognition must have been general and notorious, or else in writing.”
Prior to 1939 statutes governing the rights of inheritance between illegitimate children and the mother appeared as R. S. 22-121, and as to the father R. S. 22-122 and 123.
In the revision of the Probate Code in 1939 several separate sections of prior laws were merged together with R. S. 22-121 and 22-122 into what now appears as K. S. A. 59-501:
“As used in this article, the word ‘children’ means natural children, including a posthumous child, and children adopted as provided by law, and includes illegitimate children when applied to mother and child, and also when applied to father and child where the father has notoriously or in writing recognized his paternity of the child, or his paternity thereof has been determined in his lifetime in any action or proceeding involving that question in a court of competent jurisdiction. The word ‘issue’ includes adopted children of deceased children or issue.” (Emphasis supplied.)
The effect of the 1939 amendment was to add judicial determination to notorious and written recognition of paternity as an additional method of establishing paternity with respect to the right to inherit from a putative father.
In the case of intestate succession, descent and distribution to surviving children, or if deceased then to their living issue, is provided for in K. S. A. 59-506, which reads:
“If the decedent leaves a child, or children, or issue of a previously deceased child or children, and no spouse, all his property shall pass to the surviving child, or in equal shares to the surviving children and the living issue, if any, of a previously deceased child, but such issue shall collectively take only the share their parent would have taken had such parent been living. If the decedent leaves such child, children, or issue, and a spouse, one-half of such property shall pass to such child, children, and issue as aforesaid.”
As we have previously noted, appellants’ counsel conceded, on oral argument, that an illegitimate child, whose paternity has been established, is entitled to inherit by representation of a deceased parent from a grandparent. (See Smith v. Smith, 105 Kan. 294, 182 Pac. 538.) The Smith case was decided in 1919, but we know of no change pertaining to intestate succession in the new probate code which affected the holding therein. The words “living issue” as used in statutes concerning descent and distribution are the equivalent of living children. (Riley v. Day, 88 Kan. 503, 129 Pac. 524.)
Since appellee makes no serious contention that the bastardy proceeding, standing alone, meets the requirements of either notorious or written recognition of paternity, her right to inherit from her grandmother must stem from the judicial determination of paternity in the Doniphan County District Court bastardy proceedings.
The trial court ruled in pertinent part as follows:
“Section 59-501, K. S. A. and 59-506, K. S. A. should be liberally construed in determining whether an illegitimate child may represent its father in descent and distribution.
“The statutes permit a grandchild to inherit from a grandparent notwithstanding the fact that the child or its parent whom he replaces by representation is illegitimate.
“Illegitimate children fall within the terms, issue, child, children or heirs as used in Article 5, Chapter 59, K. S. A.
“An illegitimate grandchild inherits from a paternal grandparent by representation of a prior deceased father by intestate descent and distribution when the paternity of the grandchild was determined in the lifetime of the father in a bastardy proceeding in which the father was the defendant.”
Appellants strenuously argue that the effect of the trial court’s judgment was to give 59-501 retrospective operation in violation of well-established rules of statutory construction.
We cannot agree with the position taken by appellants for a number of reasons. First, we believe the change made in the prior law by the enactment of 59-501 was only remedial legislation. The right of an illegitimate child to inherit from the father, when recognition was established, was fully confirmed in the prior statute. The only change in the prior law worked by the enactment of 59-501 was to make a judicial determination the equivalent of notorious or written recognition of paternity. Second, there were no heirs of or vested rights in the estate of Elizabeth McKay until her death on November 30, 1965. (McCormick v. Maddy, 186 Kan. 154, 348 P. 2d 1007; 23 Am. Jur. 2d., Descent and Distribution, § 21, p. 768; K. S. A. 59-502.) Third, we believe that the language used in 59-501, read together with 59-502 and 59-506, leads to the conclusion that the right of appellee to inherit from her grandmother is to be determined as of the date of the grandmother’s death and under the law in effect at that time.
We fully agree with the familial- rule cited by appellants that generally a statute will not be given retrospective operation unless the intention of the legislature that it shall so operate is unequivocally expressed. (Douglas County v. Woodward, 73 Kan. 238, 84 Pac. 1028; and Johnson v. Warren, 192 Kan. 310, 387 P. 2d 213.) However, we do not agree that the application of 59-501 to the facts in the instant case brings about retrospective operation within the scope of the rule.
The purpose of the statute in question by its own terms is to define the word “children” as the word is used in statutes governing intestate succession, none of which become operative until the death of the ancestor. It simply states that children shall include illegitimate children when applied to father and child where the father has notoriously or in writing recognized paternity or where it has been judicially determined. In other words, the statute merely draws upon the previous establishment of paternity for its operation. A statute is not to be regarded as operating retrospectively because of the mere fact that it relates to antecedent events or draws upon antecedent facts for its operation. (50 Am. Jur., Statutes, § 477, p. 493; Benjamin v. Hunter [United States Court of Appeals, 10th Cir.] 176 F. 2d 269.)
This court has not been confronted with the precise question herein presented. However, treatment given the subject in the case of In re Estate of Case, (1956), 180 Kan. 53, 299 P. 2d 589, clearly forecast our present holding. In that case an illegitimate child made a claim against her alleged fathers estate; claiming that a bastardy proceeding commenced in 1899, before a justice of the peace, amounted to a judicial determination of paternity under 59-501, supra, which entitled her to inherit. On this issue her claim was denied on the ground that the records of the justice of the peace, which are quoted in the opinion, showed only a compromise settlement and was not “to be expanded into a judicial determination of paternity in a bastardy proceeding.” The treatment of the issue in the Case opinion clearly implies that if the bastardy proceedings had resulted in a judicial determination of paternity, as in the instant case, then claimant would have been entitled to inherit even though the bastardy proceedings took place in 1895, many years before the enactment of the probate code in 1939. In the opinion the court carefully analyzed the justice of peace records to show that the proceedings resulted merely in a compromise of the dispute and a financial settlement and that no determination of paternity was made, an undertaking entirely unnecessary if the proposition advanced by appellants herein would have been recognized as the law.
In a comprehensive commentary on “Illegitimacy in Kansas” by Donald W. Vasos, Vol. 14 Kansas Law Review, p. 473, the statutory and case law developments pertaining to the rights of an illegitimate child in Kansas are discussed in detail, commencing with legislation by the territorial legislature. Developments noted by the author clearly indicate a trend toward the erosion of the harsh treatment accorded an illegitimate under common law.
The view we have adopted is supported by prevailing authorities dealing with statutes giving rights of inheritance to illegitimates as indicated in 10 Am. Jur. 2d., Bastards, § 148:
“Construction of statutes giving rights of inheritance; strict or liberal construction.
“Diversity of judicial opinion as to the rights of illegitimates to inherit under various statutes is said to spring not so much from the differences in statutory provisions as from the differing views as to whether such statutes should be regarded as remedial and hence liberally construed, or as in derogation of the common law and strictly construed.
“There are a number of decisions which favor a strict rather than a liberal construction of statutes conferring rights of inheritances on illegitimate chil dren, but the decided trend of modern authority is to regard such legislation as basically remedial and to indulge in a liberal interpretation in order to give effect to the public policy reflected in legislation designed to remove the onus of illegitimacy from unoffending children. . . .” (pp. 949, 950.) Emphasis supplied.)
In section 150 we find this further statement:
“. . . The prevailing rule is that the statute should be given a liberal interpretation, so as to permit inheritance by an illegitimate from kindred of the parents where this can be done without violence to that or other statutes, and after proof of filiation he will receive the benefit of the presumption of legitimacy.” (p. 951.)
In enacting statutes governing the right of an illegitimate to inherit, the legislature was dealing with a class — illegitimate children — and we find no restrictive language indicating an intention to limit application of the statute to a part of the class. Surely, the legislature did not intend to create two classes of illegitimate children — those whose paternity was judicially determined subsequent to 1939 and those unfortunate enough to have had their paternity determined prior thereto.
We believe the question of what law governs in point of time with respect to the right of inheritance of an adopted child is closely analogous to the issue in the instant case. We find this comment in 2 Am. Jur. 2d., Adoption, § 109:
“. . . In most cases, however, in which the question has arisen, the statute in force at the time of the death of the intestate has been held to be controlling, and has been applied in determining the right to inherit in cases of adoption effected prior to the enactment or amendment of the statute.
In the case of Sorenson v. Rasmussen, 114 Minn. 324, 131 N. W. 325, the court was faced with a contention that the application of a statute to children adopted prior to its enactment made the statute operate retrospectively. In rejecting the contention the court reasoned:
“It is urged that to apply this statute to all adopted children makes it retrospective, and that such construction should not be given the law unless it clearly appears that it was so intended by the enacting body. We do not think this statute falls within the class of laws to which this rule of construction contended for by appellant is frequently and properly applied. This statute does not give to past acts a new effect upon mutual rights or liabilities. Nor does it change or affect existing rights. Rights by inheritance in an estate do not accrue until the death of the owner intestate. A law providing for the future descent of property is prospective. The statute in question at its passage, related to future inheritances by adopted children. It conferred or took away no present right. A law of inheritance making a change in the prior law as to adopted children— a numerous, permanent, existing class of persons — does not differ in principle from a law making a change in the rules of inheritance of property by force of the relationship of husband or wife through the relationship between other classes, and no different rule of construction of a statute effecting such change is required.” (pp. 327, 328.)
The paternity of Gladys Davis was determined by a court of competent jurisdiction during her putative father’s lifetime; therefore under the provisions of K. S. A. 59-501 and 59-506 she became an heir, by representation, of her paternal grandmother, Elizabeth McKay, who died intestate in 1965.
The judgment is affirmed.
O’Connor .and Prager, JJ., not participating. | [
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The opinion was delivered by
Luckert, J.:
Michael Walker was convicted on retrial of first-degree felony murder and criminal discharge of a firearm at an occupied dwelling. The trial court imposed a life sentence on the felony-murder conviction, to be served consecutive to a 79-month sentence for the criminal discharge conviction.
Walker appeals, arguing: (1) the trial court erred in denying his motions to suppress all statements and evidence discovered as a result of the police officers’ interrogation of him; (2) the trial court erred in denying his “Motion to Change Judge”; (3) the trial court improperly sentenced him for both felony murder and discharge of a firearm at an occupied dwelling; (4) the trial court erred by including his juvenile adjudications in the calculation of his criminal history; and (5) his sentence for criminal discharge of a weapon was illegal and the length of his sentence shows vindictiveness on the part of the judge.
We reject each of these arguments and affirm Walker’s convictions and sentences.
Facts
Walker’s convictions and sentences arose from a drive-by shooting in which 16-month-old Lexus Mathis was mortally shot in the abdomen as she slept on a couch in her family’s living room. Three days after the shooting, Walker was interrogated by police regarding the shooting. After his admission that he had driven the vehicle from which shots were fired at the Mathis’ home, Walker was charged with committing the crimes of felony murder and criminal discharge of a weapon. A jury convicted Walker as charged.
On direct appeal, this court reversed Walker s convictions after determining the trial court had improperly admitted into evidence statements made by Walker to police after Walker had clearly invoked his Fifth Amendment right to counsel during a custodial interrogation. State v. Walker, 276 Kan. 939, 80 P.3d 1132 (2003) (Walker I).
The case was remanded and Walker was tried a second time. He was again convicted of first-degree felony murder and criminal discharge of a firearm.
A detailed description of the facts related to the shooting and the investigation can be found in State v. Lowe, 276 Kan. 957, 80 P.3d 1156 (2003), in which this court affirmed the conviction of Walker s codefendant, Jermane Lowe. Highly summarized, the evidence at Walker s second trial established that Walker, Lowe, and others left a club at closing. The group dispersed in separate cars. While some of the group were driving around, another car approached and fired shots. In response, Lowe, Walker, and perhaps othei'S decided to drive to the house of a rival gang member and fire gunshots at the home. One of these shots struck Lexus Mathis.
Substantial evidence linked Walker and Lowe to the drive-by shooting. Jendayi Maples told police she was talking to Walker on her cell phone around 3:50 a.m., the approximate time of the shooting. During the conversation she heard Walker talking to Lowe and heard Walker ask Lowe if he “got the Tec,” a semiautomatic weapon. Maples heard “that’s the house,” a series of about nine gunshots, and a car speeding away. Then, the phone line went dead. Frightened, she immediately called Walker back on his cell phone. He assured her everything was fine but his ears were ringing from die shots. Cell phone records verified that the two were talking at the time Maples reported, which was also the time witnesses reported hearing the shots fired at the Mathis’ home.
Also during the investigation, police found shell casings from three types of cartridges near the curb direcdy across from the house. The State argued to the jury that the location of the casings indicated that the car had come to a stop while shots were fired from three guns and then additional shots were fired while the car was moving away.
There was evidence that on the night of the shooting Lowe was driving a maroon 1989 Toyota Camry belonging to Scott Shaffer. When Walker returned the Camry to Shaffer, the windshield was damaged from projectiles and the trunk latch was broken. Shell casings were found in the car. Ballistics testing revealed that the casings found in the car were fired from the same gun as some of the shells found at the scene of the shooting. The State argued that the physical evidence of where the shell casings were located in the car supported a conclusion that the driver of the car had fired shots. Latent fingerprints in the car did not match Lowe’s or Walker’s.
In his defense, Walker presented the testimony of Lowe, who denied that Walker had been with him on the night of the shooting. Another witness testified that Lowe asked the witness to go with him. The witness described the car that Lowe was driving; the description did not match the description of the car which Walker had driven that night.
Issue 1: Did the Trial Court Err in Denying the Defendant’s Motions to Suppress All Statements and Evidence Discovered as a Result of the Police Interrogation ?
The police interrogation of Walker occurred at the Wichita Police Investigations Bureau. Walker came to the bureau voluntarily after hearing that police wanted to speak with him. Walker was advised of his Miranda rights, and Walker indicated that he understood and wished to waive those rights and speak to the police. He initialed and signed a Miranda waiver form. Several hours into the interview, Walker made inculpatory statements, admitting to driving the car involved in the shooting.
Sometime after making that statement, Walker said, “If I could talk to my grandma right now, I just need to talk to a lawyer, man— I can’t wait till I go downstairs.” In Walker I, this court held that the police were required to honor that request to speak to an attorney and should have stopped the interrogation. 276 Kan. at 953. Their failure to cease questioning required the suppression of all statements subsequent to Walker’s request for counsel.
Upon retrial, the trial court followed the holding in Walker I by suppressing all statements made after Walker’s request for counsel. However, Walker sought a broader order of suppression, arguing his statements were not voluntary but rather were elicited through coercive tactics. He also argued that because the detectives continued questioning him after he asserted his right to counsel, all evidence discovered as a direct result of the interrogation should have been excluded as “fruit of the poisonous tree.”
Based upon the trial court’s ruling that the statement was voluntary, the State, over defense counsel’s objection, introduced into evidence a single statement from Walker’s police interrogation: his admission to being the driver of the vehicle involved in the shooting. The statement was admitted through the testimony of Sergeant Alex Robinson. On cross-examination, the sergeant acknowledged that during the interview Walker also said he was not the driver.
In his motion to suppress before the retrial, Walker argued the statement was not voluntary, his right to remain silent had been violated, and, based upon the ruling in Walker I, other evidence had to be suppressed under the “fruit of the poisonous tree” doctrine.
On appeal, Walker mentions the violation of his right to remain silent but does not cite to die record or brief the argument. An issue not briefed by the appellant is deemed waived or abandoned. State v. Holmes, 278 Kan. 603, 622, 102 P.3d 406 (2004). Walker does, however, argue die issues of voluntariness and the issue of whether evidence relating to Shaffer’s car was fruit of the poisonous tree.
Standard of Review
In reviewing the trial court’s denial of a criminal defendant’s motion to suppress statements, this court determines, without reweighing the evidence, whether die facts underlying die trial court’s decision were supported by substantial competent evidence. The trial court’s legal conclusion drawn from those facts is reviewed de novo. State v. Rupnick, 280 Kan. 720, 727, 740, 125 P.3d 541 (2005); see also State v. Kirtdoll, 281 Kan. 1138, 1144, 136 P.3d 417 (2006).
Substantial evidence is “evidence which possesses botii relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Stated another way, substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. [Citation omitted.]” State v. Luna, 271 Kan. 573, 574-75, 24 P.3d 125 (2001).
Voluntariness
Walker takes issue with the police officers’ interrogation techniques and the length of time he was kept in the interrogation room. See Jackson v. Denno, 378 U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964) (coercion during an interrogation can be mental as well as physical). According to Walker, he was coerced in that he had little experience with interrogations, was isolated from outside help during this period of questioning, and was threatened by police.
The issue of voluntariness of the confession had been raised before Walker’s first trial and was also raised on appeal in Walker I. After the Jackson v. Denno hearing in Walker I, the trial court made detailed findings on the record with regard to its conclusion that Walker’s statements were voluntary. On appeal, the Walker I court did not reach the issue, leaving the question open for further argument and evidence. 276 Kan. at 953. On remand, no additional evidence was presented. Rather, the trial judge, who had presided over the first trial as well, considered the record from the evidentiary hearing on the initial motion to suppress. The trial court essentially referred to its ruling prior to Walker I as the “law of the case.”
Considering the appellate argument in Walker I, this court summarized the evidence from the evidentiary hearing which served as the basis for the court’s ruling, stating:
“The interview began at 9:15 a.m. with some general biographical questions. [Detective] Mumma advised Walker of his Miranda rights, and Walker indicated that he understood and wished to waive those rights and speak to the police. Walker initialed and signed a Miranda waiver form. Mumma stated that Walker had been questioned in previous criminal investigations and was well acquainted with the process, although Mumma had never personally read him a Miranda warning before.
“Mumma and Detective Gouge were initially with Walker for about 50 minutes, during which Walker denied any involvement with the shooting or any knowledge about what happened other than rumors. After the initial interview, Walker was left alone in the locked interview room for over an hour. Questioning was reinitiated after which Walker was again left alone in the interview room. Detectives again returned and, after some additional questioning, placed Walker under arrest and handcuffed Walker to the table in the interview room. The arrest occurred at 1:38 p.m., slightly more than 4 hours after tire interview began. The detectives again left Walker alone. He started yelling and banging on tire table, wanting someone to stay with him. Various officers came and went. Whenever he was left alone in the room, Walker would yell and bang on the table. At around 4:14 p.m., an officer shackled Walker’s foot to the table. Except for escorted restroom bréales, Walker was in the same interview room until 10:10 p.m., almost 13 hours after the interview began. He was not allowed to talk to his father [who had brought him to die bureau and was in die reception area] or odier family members.
“Over die 13 hours, 10 Wichita police officers had contact with Walker, at least 5 of whom asked questions related to die investigation: Mumma, Gouge, Espinoza, Robinson, and Landwehr. Various techniques were employed to encourage Walker to talk.” 276 Kan. at 941-42.
The transcript of the interview is a part of the record before us.
In determining whether a confession is voluntary, a court is to look at cthe totality of the circumstances. The burden of proving that a confession or admission is admissible is on the prosecution, and the required proof is by a preponderance of the evidence. The essential inquiry in determining tire voluntariness of a statement is whether the statement was the product of the free and independent will of the accused. State v. Gonzalez, 282 Kan. 73, 103, 145 P.3d 18 (2006). Although we have repeatedly indicated that there are a number of factors to be considered when determining if a statement was voluntary and we have often enumerated tiróse factors, we have not always done so in a consistent manner. Compare Gonzalez, 282 Kan. at 103 (listing five factors for consideration) with State v. Harris, 279 Kan. 163, 167, 105 P.3d 1258 (2005) (listing four factors) with State v. Nguyen, 281 Kan. 702, 725, 133 P.3d 1259 (2006) (adding English fluency to list of four factors). Combining these considerations, the factors to be considered when determining if a statement is voluntary are: (1) the accused’s mental condition; (2) the manner and duration of the interrogation; (3) the ability of tire accused to communicate on request with the outside world; (4) the accused’s age, intellect, and background; (5) the fairness of the officers in conducting the interrogation; and (6) the accused’s fluency with the English language.
Mental State. The defendant in this case did not present any evidence regarding his mental state and, other than pointing to his level of agitation as a sign of coercion, does not argue this factor.
Duration and Manner. Walker complains about the length of time he was interrogated. He was in the interview room for almost 13 hours; Walker confessed to involvement in the crime aftér about 8 hours. It was shortly after this statement that Walker asked for an attorney and the interview should have ended. As a result, the admissible portion of the interview lasted approximately 8 hours. Walker was given numerous restroom breaks, was given food and drinks, and was permitted to smoke.
Although the interrogation spanned a substantial period of time, we have found statements voluntary when similar lengths of time were involved. See State v. Ackward, 281 Kan. 2, 128 P.3d 382 (2006) (upholding statements as voluntary where defendant’s interrogation lasted 8 or 9 hours).
Outside Contact. Next, Walker complains he was denied contact with tire outside world. The trial court agreed, finding there was “no question about that.” Walker contends he made 17 requests to contact family members about his arrest during the course of the police interrogation. He fails, however, to discuss or identify the specific instances of which he complains, and we cannot reconcile his count with the record. As the State acknowledges in its brief, the transcript of Walker’s interrogation shows at least four instances, before invoking his right to counsel, where Walker requested to speak with a family member and was denied the opportunity to do so.
Toward the beginning of the interrogation, Walker asked to speak with his father who was in the waiting area at the bureau, and Detective Gouge told Walker he could not do so at that time. Then, just before Gouge left the interrogation room, Walker asked whether he could go sit in the waiting area and go talk to his father. After Gouge told Walker he would see if they could arrange for him to speak with his father, Walker expressed the fact that he did not want to be alone in the interrogation room. Later, well after Walker had been arrested, he asked Detective Gouge if he could call his grandmother, and the detective did not permit this. In addition, Walker eventually asked Sergeant Robinson to speak with his grandmother about hiring an attorney. At other times, Walker asked whether police had talked to his father or called his grandmother; however, these inquiries were not requests for Walker to make contact.
While isolation from the outside world can be a factor in making an interrogation coercive, it is to be expected that police will take steps to limit the ability of potential witnesses and suspects to communicate and, potentially, conspire during an investigation. It must be recognized that such communications can occur through intermediaries such as family members. In this case, police had told Walker they were talking to other witnesses, including Maples and Lowe, while they were talking to him. At one point, he asked what Lowe had said. When they refused to tell him, he immediately asked if he could speak to his father. The timing of the request suggests his motivation for seeking outside contact was to gather information and, in turn, explains the police officers’ reluctance to grant his request.
Refusal of such a request is not per se coercive. And, in this case, neither the number of requests, the context in which they were made, nor the police officers’ responses made Walker’s inability to communicate coercive.
Age, Intellect, and Background. The evidence established that Walker was 20 years old and previously had been interrogated and Mirandized by officers. There was no evidence regarding Walker’s intellect. The trial court found that Walker seemed to “fall in the average range of intelligence.” We see nothing that makes us conclude otherwise. Indeed, a review of the interview transcript reveals Walker carried on intelligent conversations with the officers.
Fairness of the Officers. Most of Walker’s arguments relate to the factor of fairness of the officers. He argues the police tactics were coercive because the police threatened him with harsher penalties if he did not cooperate. See State v. McCarther, 197 Kan. 279, Syl. ¶ 4, 416 P.2d 290 (1966) (confession inadmissible when elicited by force or threats). The trial court found that law enforcement neither coerced Walker nor made him any promises.
To support his contention regarding police threats, Walker specifically cites a colloquy between Lieutenant Landwehr and Walker where they discussed Maples’ allegations that she heard gunshots when she talked to Walker on his cell phone on the night of the incident:
“[Landwehr]: So, . . . what’s the gunfire coming over that phone?
“[Defendant]: The bitch. I swear man, for all it could have been a f — ing song that was on the radio or something.
“[Landwehr]: Wrong. You stick to that story and you can get out in about 45 to 50 years and you can still stick to that story.
“[Defendant]: S — t! I’m gonna stick to it and never change.
“[Landwehr]: . . . but right now . . .
“[Defendant]: ..it. (pounding noise) take me (pounding noises) across (pounding noises) the (pounding noises) street (pounding noises) man.
“[Landwehr]: Sit down. . . if they . . .
“[Defendant]: I’m gonna . . .
“[Landwehr]: . . . have to tell you again . . . then you’re gonna get hurt ... do you understandP
“[Defendant]: Y’all gonna beat me up?
“[Landwehr]: I didn’t say that. I said don’t bang on the table. . . act like a man. You’re under arrest.
“[Defendant]: For what?
“[Landwehr]: Murder. Do you understand that? You’re under arrest for murder.” (Emphasis added.)
In context, it is clear that the comment about being hurt was not a threat but, rather, concern that Walker would hurt himself. Clearly, though, as Walker argues, the statement regarding 45 to 50 years was a reference to the amount of time Walker could spend in prison. Walker further argues that another officer, Sergeant Robinson, coerced him into making an incriminating statement by threatening Walker with 50 years in prison. Robinson came to the interrogation room because Walker asked to talk to him several hours into the interview. Walker explained that he knew Robinson from when he was younger and Robinson “stay[ed] on my case.” A review of the interrogation transcript shows it was Walker who first mentioned to Robinson that “they gonna give me 50.” Robinson responded: “I don’t know what they gonna do. That’s not left up to the Police, that’s left up to the courts . . . and the jury.” Then, in urging Walker to tell him what happened on the night of the shooting, Robinson made numerous statements like, “Mike, you can’t go to jail for 50 years for [something] you didn’t do,” and, “You can’t go to jail for 50 years . . . even 5 years . . . for [something] you didn’t do.”
Although Robinson periodically played on the fact that Walker was scared of going to jail for 50 years, he did indicate that the length of jail time would be decided by the courts. In fact, just before his inculpatory statement, Detective Robinson advised Walker: “[Y]ou know they [booking officers] gotta talk to the DA’s office, I’m not here to promise you what they’ll do, or what they can or can’t do. I don’t want to fill your head up with something that ain’t gonna happen.”
Walker also points to several instances in the interview where the possibility of the death penalty was raised. To support his argument that the statements regarding prison time and the death penalty were coercive, Walker cites Green v. State, 91 Md. App. 790, 605 A.2d 1001 (1992), where the Court of Special Appeals of Maryland held that officers improperly influenced the minor defendant and overcame his free will by incorrectly advising the defendant that he may be subject to the death penalty. 91 Md. App. at 798. Green is neither controlling nor persuasive authority under the facts of this case.
Unlike the defendant in Green, Walker was not a minor. He was 20 years old at the time of the interrogation. As for the mention of the death penalty in this case, it was Walker who first broached the subject. After Walker admitted driving the vehicle involved in the crime, he asked Sergeant Robinson if Kansas has the death penalty. Robinson answered in the affirmative. Then Walker asked whether Robinson thought the shooter would get the death penalty. Robinson replied: “Yeah man . . . you need to get this stuff off of your chest.” Later, Detective Mumma stated: “An aspect of the death penalty is if you kill a child under the age of 10. And obviously the child was killed.” However, this discussion came after tire statement used in the trial. Moreover, the references to the death penalty were made in the portions of the statement that were suppressed, in other words, after Walker had requested an attorney.
Regardless, this court has declined to find a confession to be involuntary when the police encourage a defendant to tell the truth. State v. Newfield, 229 Kan. 347, 359, 623 P.2d 1349 (1981); State v. Tillery, 227 Kan. 342, 344, 606 P.2d 1031 (1980). This is true even where police have told a suspect he or she could be facing the death penalty in an attempt to get the accused to be truthful. State v. Combs, 280 Kan. 45, 51-52, 118 P.3d 1259 (2005).
Walker also complains about threats regarding what would happen if he did not cooperate. Walker argues these statements were deceptive. In State v. Harris, 279 Kan. 163, 170, 105 P.3d 1258 (2005), this court cited State v. Wakefield, 267 Kan. 116, 128, 977 P.2d 941 (1999), for the controlling principle that “[deceptive interrogation techniques alone do not establish coercion.”
The issue was also discussed in State v. Swanigan, 279 Kan. 18, 106 P.3d 39 (2005). The Swanigan court stated: “[U]nder Wakefield, the false information must be viewed as a circumstance in conjunction with others, e.g., additional police interrogation tactics.” 279 Kan. at 32. In Swanigan, the interrogating officers urged Swanigan to confess to the crime so they could report that he cooperated. When Swanigan denied involvement in the crime, the interrogating officers threatened Swanigan with telling the district attorney that he had refused to cooperate and suggested that the district attorney would reject any deal for leniency. Moreover, the officers indicated that Swanigan could be charged with five robberies instead of one unless he confessed. This interrogation tactic involved an implied or express detriment if the defendant refused to cooperate, which the Swanigan court found may amount to suggesting to a suspect that his or her exercise of the constitutional right to remain silent could result in harsher treatment. 279 Kan. at 34-35. The court refused, however, to regard even that tactic as “one which makes the confession involuntary per se.” 279 Kan. at 37.
The Swanigan court ultimately held that, under the circumstances, the repeated use of false information combined with Swanigan’s low intelligence and susceptibility to being overcome by anxiety, police threats, and promises constituted coercion that produced an involuntary statement. 279 Kan. at 39. In contrast to Swanigan, however, as we have previously discussed, there is no evidence that Walker had low intelligence and no testimony indicating that Walker was susceptible to being overcome by anxiety. The transcript shows that Walker became angry and agitated when left alone, but he carried on intelligent conversations with the officers. As previously discussed, the trial court found that Walker seemed to “fall in the average range of intelligence.”
The complained-of statements regarding cooperation are similar to those made in State v. Johnson, 253 Kan. 75, 84, 853 P.2d 34 (1993). In that case, this court upheld a finding of voluntariness where a law enforcement officer stated he would go to the district attorney and tell him if the defendant was cooperating. The court found that tire officer did not bargain with or promise Johnson anything either directly or by implication. 253 Kan. at 84; see also State v. Harwick, 220 Kan. 572, 575-76, 552 P.2d 987 (1976) (interviewing officer’s mere offer to talk to district attorney did not render defendant’s confession involuntary). Likewise, the officers’ statements that Walker could help himself are similar to statements upheld in State v. Ninci, 262 Kan. 21, 39, 936 P.2d 1364 (1997) (interrogating officers told Ninci, “You can do some things to help yourself now.”).
Therefore, we conclude that the officers’ conduct was not of a nature to overcome Walker’s free will and render the statements involuntary.
Fluency. No question was raised in this case regarding Walker’s English fluency.
Conclusion. The trial court found that law enforcement was fair with Walker and that his statements were the product of Walker’s free will. Substantial competent evidence supports the trial court’s finding. Walker was comfortable with Sergeant Robinson, evidenced by the fact that he asked to talk to Robinson. Walker was experienced in dealing with law enforcement, as evidenced by some of his conversations with tire officers in the interview room. Further, as Detective Mumma testified, Walker had been questioned on previous occasions.
As we have discussed, no individual factor, standing alone, suggests that Walker s free will was overcome. When we examine the totality of the factors and the circumstances of the interrogation as part of our de novo review, we conclude the statement was the product of Walker’s free and independent will.
Suppression of Vehicle
Walker further contends that the trial court erred in denying his motion to suppress physical evidence discovered as the fruit of a Miranda violation. Walker specifically argues that evidence pertaining to the vehicle should have been suppressed because statements given by Walker in violation of his right to counsel led law enforcement officers to locate the evidence.
The State argues the evidence should not be suppressed under the independent source test.
The exclusionary rule that prohibits the use of wrongfully obtained confessions also prohibits the use of any evidence obtained as a result of the wrongfully obtained statements under the fruit of the poisonous tree doctrine. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 64 L. Ed. 319, 40 S. Ct. 182 (1920) (“The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.”) 251 U.S. at 392.
The evidence may be used, however, if police can trace the evidence to an independent and lawful source. Wong Sun v. United States, 371 U.S. 471, 487-88, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963). As explained in State v. Waddell, 14 Kan. App. 2d 129, Syl. ¶ 4, 784 P.2d 381 (1989):
“Evidence obtained unlawfully in violation of a defendant’s constitutional rights is admissible under the inevitable discovery exception to the exclusionary rule where the prosecution can prove by a preponderance of the evidence that the unlawfully obtained evidence would have ultimately or inevitably been discovered by lawful means.”
Accord State v. Ackward, 281 Kan. 2, 18, 128 P.3d 382 (2006).
In this case, at the suppression hearing, the prosecutor acknowledged that after Walker requested counsel, he described the car that was used in the crime and started telling officers about how he obtained the vehicle. Also, in the inadmissible portion of the interrogation, Walker provided law enforcement with the name “Scott” as the owner of the vehicle and the fact that the vehicle was maroon in color. But, officers’ testimony revealed that Walker gave the wrong make of the car and the wrong location. The trial court ultimately found that the police used some information from the admissible portion of the interrogation, in conjunction with independent police investigation, to determine who owned the car, where it was located, and how Walker got the car on the night of the drive-by shooting.
Substantial competent evidence supports the trial court’s conclusion that the prosecution established, by a preponderance of the evidence, that the unlawfully obtained evidence would have ultimately or inevitably been discovered by lawful means. Detective Reynolds testified that, during the admissible portion of tire interview, Walker provided the police with the name of “Shawntell” Thomas as an alibi witness. Walker also mentioned that he and Thomas were in a car together on the night of the incident. Later, officers talked to Thomas who described the car as maroon in color.
Officers’ testimony also revealed that Walker mentioned the names of Shaun Bell and Reginald Hunt during the admissible portion of the interview. Reynolds testified drat, based on an address for a crack house provided by Walker during the inadmissible portion of the interview, the police went to Hunt’s residence and talked to Hunt who admitted knowing Walker. It was a narcotics search warrant executed at Hunt’s residence that led police to Scott Shaffer and his vehicle — -the one that was used in the drive-by shooting. Regardless, Reynolds’ testimony also indicated that, even if Walker had not given Hunt’s address and the name “Scott” during the inadmissible portion of the interrogation, officers would have gone to the house to interview Hunt because Walker and Lowe had been there on the night of the drive-by shooting incident. Walker mentioned he had been at Hunt’s house before he requested counsel.
The record shows that, while officers used evidence from both tire admissible and inadmissible portions of Walker’s interrogation to investigate further into the details of the case, none of the statements made by Walker in the inadmissible portion of die interrogation led officers directly to the car used in the incident. The car was located only after law enforcement followed other leads, conducted interviews of other witnesses, and assimilated independent information.
The trial court correctly denied Walker’s motion to suppress the vehicle evidence.
Issue 2: Did the Trial Court Err in Denying the Defendant’s “Motion to Change Judge”?
Walker next argues that the trial court erred in denying his “Motion to Change Judge,” filed pursuant to K.S.A. 2006 Supp. 20-311d. Judge David W. Kennedy presided over Walker’s first trial, and Walker wanted a different judge to preside over his second trial. He argues, therefore, that he was denied a fair trial when his motion to change judge was denied. Walker’s contentions are not persuasive.
Standard of Review
The standard of review for a claim of error relating to a motion for change of judge is set forth in State v. Alderson, 260 Kan. 445, Syl. ¶ 2, 922 P.2d 435 (1996), as follows:
‘When a district court refuses to recuse itself from a trial upon the defendant’s request, this court has promulgated a two-part test to determine whether the defendant received a fair trial or whether the defendant’s due process rights were violated: (1) Did the trial judge have a duty to recuse himself or herself from this case because the judge was biased, prejudicial, or partial? (2) If the judge did have a duty to recuse and failed to do so, is there a showing of actual bias or prejudice to warrant setting aside the judgment of the trial court?”
Applicable Statute
K.S.A. 2006 Supp. 20-311d governs the procedure involving a party’s request for a change of judge and provides a three-step process. First, the party files a motion without stating the grounds for the party’s belief that tire judge to whom the case is assigned cannot afford that party a fair trial. “The judge shall promptly hear the motion informally upon reasonable notice to all parties who have appeared in the case.” K.S.A 2006 Supp. 20-311d(a).
The second step depends upon whether the judge disqualified himself or herself. If disqualified, the chief judge of the district assigns the action to another judge. “If the judge refuses to disqualify the judge’s self, tire party seeking a change of judge may file the affidavit provided for in subsection (b).” K.S.A. 2006 Supp. 20-311d(a). The affidavit must be filed immediately and may allege any of the grounds specified in K.S.A. 2006 Supp. 20-311d(c).
If an affidavit is filed, under step three, “the chief judge shall at once determine, or refer the affidavit to another district judge for prompt determination of, the legal sufficiency of the affidavit.” K.S.A. 2006 Supp. 20-311d(b). If the affidavit is found to be legally sufficient, the case is assigned to another judge.
K.S.A. 2006 Supp. 20-311d(c) provides that one of the grounds which may be alleged in an affidavit for change of judge is that the party believes tire party cannot obtain a fair and impartial trial because of the “personal bias, prejudice or interest of the judge.” K.S.A. 2006 Supp. 20-311d(c)(5). The “affidavit shall state the facts and the reasons for the belief that bias, prejudice or an interest exists.” K.S.A. 2006 Supp. 20-311d(c)(5); see Hulme v. Woleslagel, 208 Kan. 385, 392, 493 P.2d 541 (1972). Where the allegations in the affidavit are speculations only, they do not reach dre threshold necessary to sustain the motion. State v. Goss, 245 Kan. 189, 198, 777 P.2d 781 (1989).
Walker filed a motion pursuant to K.S.A. 2006 Supp. 20-311d(a) seeking the recusal of Judge David W. Kennedy. Judge Kennedy denied the motion. Walker proceeded to the next step of the procedure and filed an affidavit in support of his motion for change of judge.
In his affidavit in support of his motion for change of judge, Walker pointed out that, in the first trial, Judge Kennedy had denied his motion for acquittal at the close of the State’s evidence and had also denied his motion for acquittal notwithstanding the verdict at the conclusion of the trial. These rulings, according to Walker, show that Judge Kennedy previously “found the defendant guilty in this case.” In addition, Walker noted in his affidavit that Judge Kennedy had initially denied a trial continuance requested by defense counsel Steven House in 2004 and had also removed House from tire case on ineffective assistance of counsel grounds, only to reinstate him as defense counsel 2 weeks later. Finally, Walker s affidavit alleged that Judge Kennedy “intimated to the jury that defense counsel was lying” when House objected to the admission of certain cell phone billing records in the first trial and counsel asserted that he had not received copies of those records.
The chief judge of Kansas’ Eighteenth Judicial District, Sedgwick County — at that time Judge Richard T. Ballinger — examined Walker’s affidavit and held an informal hearing on the matter. At the hearing, tire ineffective assistance of counsel issue was discussed. It was revealed that when defense counsel House had requested a trial continuance, he told Judge Kennedy that he would be ineffective if he did not receive a continuance. Judge Kennedy was not inclined to give a continuance and, thus, removed House from the case. However, at a subsequent hearing, Walker’s new defense counsel expressed Walker’s desire to be represented by House and apprised the court that he had spoken to House about July 12, 2004, as an “appropriate date” for trial. Judge Kennedy then issued an order reappointing House as defense counsel and setting July 12 as the date for the jury trial.
At the informal hearing on the motion for change of judge, the State argued that the situation was not one where the trial court believed defense counsel could not handle the case. Instead, defense counsel expressed that he could not be ready for trial on the date imposed by the court. The State pointed out that the trial date was ultimately continued.
As for Walker’s allegation that Judge Kennedy implicated defense counsel as a Mar in the presence of the juiy, this issue was not discussed at the hearing. However, Walker attached to his affidavit the portion of the transcript in which defense counsel House told Judge Kennedy he had not received copies of certain cell phone billing records. When House made this statement, the judge replied: “I think you have. But that doesn’t make any difference.” This was the extent of the discussion on the matter.
Considering the allegations as a whole, Judge Ballinger found there were “no legal issues, ... no personal involvement, [and no] financial involvement” with regard to Judge Kennedy’s relationship with the case. He observed that defense counsel and Judge Kennedy disagreed on some rulings and events in the past, but Judge Ballinger found that those did not “rise to the level of being a legal reason where this Court has to . . . recuse Judge Kennedy from this case.” Walker’s motion for change of judge was denied.
On appeal, Walker contends this ruling was erroneous because he created reasonable doubt regarding the impartiality of Judge Kennedy.
Applying the first prong of our standard of review, we must determine “(1) Did the trial judge have a duty to recuse himself or herself from this case because the judge was biased, prejudicial, or partial?” Alderson, 260 Kan. 445, Syl. ¶ 2. The Kansas Code of Judicial Conduct states a judge has a duty to recuse himself or herself from a case “in which the judge’s impartiality might reasonably be questioned, including . . . instances where . . . the judge has a personal bias or prejudice concerning a party.” Rule 601A, Canon 3E(1)(a) (2006 Kan. Ct R. Annot. 576-77). This court has clarified that a judge should disqualify himself or herself if the circumstances and facts of the case “create reasonable doubt concerning the judge’s impartiality, not in the mind of the judge himself, or even, necessarily, in the mind of the litigant filing the motion, but rather in the mind of a reasonable person with knowledge of all the circumstances.” State v. Logan, 236 Kan. 79, 86, 689 P.2d 778 (1984).
As Judge Ballinger determined, Walker has failed to meet this standard.
Regardless, even if this court were to assume that Walker established the first part of the test, in order to establish a due process violation Walker must demonstrate actual bias or prejudice by the judge. The term “bias” refers to the judge’s mental attitude toward a party in the lawsuit. State v. Reed, 282 Kan. 272, Syl. ¶ 3, 144 P.3d 677 (2006); Alderson, 260 Kan. at 454. Bias and prejudice exist if a judge harbors a “hostile feeling or spirit of ill will against one of the litigants, or undue friendship or favoritism toward one.” State v. Foy, 227 Kan. 405, 411, 607 P.2d 481 (1980); see Reed 282 Kan. at 277. “[T]he recital of previous rulings or decisions by the judge on legal issues . . . shall not be deemed legally sufficient for any belief that bias or prejudice exists.” K.S.A. 2006 Supp. 20-311d(c)(5); Smith v. Printup, 262 Kan. 587, 608, 938 P.2d 1261 (1997).
Walker fails to point to anything in the record demonstrating that Judge Kennedy actually exhibited bias or prejudice at either of his trials. Therefore, we conclude the ruling on the motion to change judge did not create reversible error.
Issue 3: Did the Trial Court Improperly Sentence Walker For Both Felony Murder and Discharge of a Firearm at an Occupied Dwelling?
Walker next raises the issue of whether the trial court improperly sentenced him for both felony murder and discharge of a firearm at an occupied dwelling. He contends that his sentence violates his right against double jeopardy. This contention lacks merit.
Standard of Review
The Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and §10 of the Kansas Constitution Bill of Rights prohibit multiple punishments for a single offense. The issue of whether Walker’s convictions violate double jeopardy is a question of law subject to unlimited review. See State v. Reed, 282 Kan. 272; State v. Schoonover, 281 Kan. 453, 462, 133 P.3d 48 (2006).
Walker did not raise the double jeopardy issue below, but Kansas appellate courts may consider an issue for the first time on appeal to serve the ends of justice or prevent denial of fundamental rights. A double jeopardy issue implicates a “fundamental right of a defendant to a fair trial under the 5th and 14th Amendments to the Constitution of the United States.” State v. Dubish, 234 Kan. 708, 718, 675 P.2d 877 (1984) (addressing the double jeopardy issue as one of multiplicity and noting the reason for concern of multiplicity is because it implicates double jeopardy).
Walker notes that the State’s theory of felony murder arose from the death of 16-month-old Lexus Mathis as a result of shots fired at the Mathis’ house. He further notes that the charge of criminal discharge of a weapon at an occupied dwelling arose from the act of firing shots at the same house. Walker argues that only one wrongful act, the discharge of the weapon toward the house, involved a single act of violence. Thus, Walker contends that a single act of violence could not be used to support both crimes.
In making this single-act-of-violence argument, Walker relies on State v. Groves, 278 Kan. 302, 95 P.3d 95 (2004), and its progeny, in which this court recognized the single act of violence paradigm. However, in State v. Schoonover, 281 Kan. 453, 493-95, 133 P.3d 48 (2006), this court recently rejected this multiplicty paradigm as a corruption of early multiplicity jurisprudence and overruled Groves.
In Schoonover, this court recognized that the Double Jeopardy Clauses of the United States and Kansas Constitutions guarantee only the right not to be twice put in jeopardy for the same offense. The provisions permit a prosecution based upon the same acts but for different crimes if the legislature authorized the cumulative punishment. 281 Kan. at 465. Citing to United States Supreme Court precedent, the Schoonover court held that “if the legislature has explicitly authorized multiple punishment, the judicial inquiry is at an end; multiple punishment is authorized and proper.” 281 Kan. at 468. The Schoonover court explained that when a double jeopardy claim arises from cumulative punishments imposed in one case,
“the overarching inquiry is whether the convictions are for the same offense. There are two components to this inquiry, both of which must be met for there to be a double jeopardy violation: (l) Do the convictions arise from the same conduct? and (2) By statutory definition are there two offenses or only one?” 281 Kan. at 496.
The court listed four nonexclusive factors to consider in determining whether convictions arise out of the same conduct:
“(1) whetlier the acts occur at or near the same time; (2) whedier the acts occur at the same location; (3) whether diere is a causal relationship between the acts, in particular whedier there was an intervening event; and (4) whether diere is a fresh impulse motivating some of the conduct.” 281 Kan. 453, Syl. ¶ 16.
If the convictions are based on discrete conduct, i.e., committed separately and severally, there is no double jeopardy violation and the double jeopardy analysis ends. If the conduct is unitary, that is it arises from the same conduct, the court must consider whether by statutory definition there are two offenses or only one. 281 Kan. at 496.
In the case at hand, the first-degree felony murder conviction and conviction of discharge of a firearm at an occupied dwelling arose out of the same conduct of firing shots at the Mathis’ home. The offenses were committed at the same time and at the same location. Moreover, there was no evidence of intervening events or a fresh criminal impulse motivating the conduct. Therefore, this constituted one transaction.
This leads tire analysis into the second step, determining whether by statutory definition there are two offenses or only one. The Schoonover court explained that courts must discern whether the legislature authorized the multiple punishments. As an aid to making this determination when the convictions are based on the same conduct, the court usually applies the same-elements test. Under the same-elements test, a court may examine whether the charges in the complaint or information under different statutes requires proof of an element not necessary to prove the other offense. If so, the charges stemming from a single act do not violate the Double Jeopardy Clause. 281 Kan. at 495.
In this case, a same-elements test reveals that each offense required proof of an element not necessaiy to prove the other offense. The firearm offense requires proof that the defendant discharged a firearm at an occupied dwelling, while felony murder requires proof that a person was killed during the commission of an inherently dangerous felony. Compare K.S.A. 21-3401(b) with K.S.A. 2006 Supp. 21-4219(b).
Moreover, the Schoonover court also recognized that it may not always be necessaiy to apply the same-elements test; there may be circumstances where the legislature’s intent is otherwise clear. The court cited to and discussed the United States Supreme Court’s decision in Missouri v. Hunter, 459 U.S. 359, 74 L. Ed. 2d 535, 103 S. Ct. 673 (1983), in which a double jeopardy issue arose under Missouri’s felony-murder statute. In Hunter, the Court explained that the elements test is a rule of statutory construction and
“is not a constitutional rule requiring courts to negate clearly expressed legislative intent. Thus far, we have utilized that rule only to limit a federal court’s power to impose convictions and punishment when the will of Congress is not clear. Here, the Missouri Legislature [by enacting a felony-murder statute] has made its intent crystal clear. Legislatures, not courts, prescribe the scope of punishments.” 459 U.S. at 368.
Discussing this analysis in light of Kansas’ felony-murder statute, the Schoonover court stated:
“The Kansas Legislature authorized multiple punishments by enacting K.S.A. 21-3436. K.S.A. 2005 Supp. 21-3436 lists those felonies which shall ‘be deemed an inherently dangerous felony whether or not such felony is so distinct from the homicide alleged to be a violation of the felony-murder provision and those which ‘shall be deemed an inherently dangerous felony only when such felony is so distinct from die homicide alleged to be a violation of the felony-murder provision. Through diese provisions, die legislature stated its intent as to when cumulative punishments can be imposed.” Schoonover, 281 Kan. at 490-91.
In other words, through K.S.A. 2006 Supp. 21-3436(a), the Kansas Legislature expressed an intent that felony murder and any inherently dangerous felony listed in K.S.A. 2006 Supp. 21-3436(a) are separate offenses for which cumulative punishments may be imposed.
K.S.A. 2006 Supp. 21-3436(a)(15) provides that any felony offense provided for in K.S.A. 21-4219 and amendments thereto “shall be deemed an inherently dangerous felony whether or not such felony is so distinct from the homicide alleged to be a violation of’ the felony-murder statute. K.S.A. 2006 Supp. 21-4219(b) makes discharge of a weapon at an occupied building a severity level 7 felony.
Therefore, whether we construe K.S.A. 2006 Supp. 21-3436(a) or apply the same-elements test as a rule of construction, the Kansas Legislature’s intent is clear: felony murder and felony discharge of a weapon are intended to be separate, offenses for which there can be cumulative punishments. Double jeopardy does not attach to convictions under the felony-murder statute, K.S.A. 21-3401(b), and felony discharge of a firearm at an occupied dwelling, K.S.A. 2006 Supp. 21-4219(b), even if the charges arise from the same conduct. Walker’s sentences for those convictions are not multiphcitous and do not violate his right against double jeopardy.
Therefore, the trial court did not err by sentencing Walker for felony murder in addition to discharge of a firearm at an occupied dwelling.
Issue 4: Did the Sentencing Court Err by Including the Defendant’s Juvenile Adjudications in the Calculation of His Criminal History?
Next, Walker contends for the first time on appeal that his two juvenile convictions should not have been included in determining his criminal history score. This issue is controlled by State v. Hitt, 273 Kan. 224, 234-36, 42 P.3d 732 (2002), cert. denied 537 U.S. 1104 (2003), in which it was held that the use of prior juvenile adjudications in a defendant’s criminal history does not violate his or her constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
The defendant cites no new case law and offers no new argument which might persuade this court to depart from its previously stated position. There is no reason to stray from precedent. Walker’s argument' fails.
Issue 5: Is the Defendant’s Sentence for Criminal Discharge of a Firearm Illegal and Does the Length of His Sentence Show Vindictiveness on the Fart of the Sentencing Court?
Finally, Walker argues that the trial court’s imposition of his sentence for the criminal discharge of a firearm conviction under the Kansas Sentencing Guidelines Act (KSGA) was vindictive and illegal and, therefore, must be set aside. These contentions lack merit.
Standard of Review
"Whenever a defendant is sentenced to a presumptive sentence and there is no claim of error in regard to crime severity level or criminal history, there is a strong legislative presumption that the sentence is not the result of partiality, prejudice, oppression, or corrupt motive.” State v. Starks, 20 Kan. App. 2d 179, Syl. ¶ 9, 885 P.2d 387 (1994); see State v. Scales, 261 Kan. 734, 737, 933 P.2d 737 (1997).
Whether a criminal sentence is illegal is a question of law over which an appellate court may properly exercise de novo review. See State v. Harper, 275 Kan. 888, 889, 69 P.3d 1105 (2003).
K.S.A. 21-4721(e) provides:
“In any appeal, the appellate court may review a claim that:
“(1) A sentence that departs from the presumptive sentence resulted from partiality, prejudice, oppression or corrupt motive;
“(2) the sentencing court erred in either including or excluding recognition of a prior conviction or juvenile adjudication for criminal history scoring purposes; or
“(3) the sentencing court erred in ranking the crime severity level of the current crime or in determining the appropriate classification of a prior conviction or juvenile adjudication for criminal history purposes.”
Here, Walker complains that his original sentence for discharge of a firearm, a level 3 nonperson felony, was less than the sentence he received for the same conviction on resentencing. The sentence with which Walker takes issue is a presumptive sentence, but he contends that the sentencing court erred in ranking the primaiy crime for purposes of calculating the base sentence, which appears to fall under K.S.A. 21-4721(e)(3). Therefore, we have jurisdiction to consider the legality of Walker s sentence.
As for his contention that the sentence imposed on resentencing was illegal, Walker notes that, at his original sentencing, the court considered the felony-murder conviction to be the primary crime. As a result, the court essentially applied a criminal histoiy score of “I” to calculate Walker s sentence for the criminal discharge of a firearm conviction. The applicable grid box contained a sentencing range of 55-59-61. See K.S.A. 2006 Supp. 21-4704. The trial court imposed a sentence of 61 months’ imprisonment.
After Walker was retried, die trial court held a second sentencing hearing at which the court found that the criminal history score was calculated incorrectly at Walker’s first sentencing hearing. At resentencing, the trial court calculated Walker’s sentence using the criminal discharge of a firearm conviction as the primary crime. Applying a criminal history score of “F,” die court imposed a mid- range sentence of 79 months’ imprisonment for the criminal discharge offense. The applicable grid box contained a sentencing range of 74-79-83. See K.S.A. 2006 Supp. 21-4704.
Walker argues that his sentence is illegal in that the trial court should have calculated his base sentence using the felony-murder conviction as the primary crime.
The plain language of K.S.A. 2006 Supp. 21-4720(b)(2) states, in pertinent part, that “[t]he sentencing judge must establish a base sentence for tire primary crime. The primary crime is the crime with the highest crime severity ranking. An off-grid crime shall not be used as the primary crime in determining the base sentence when imposing multiple sentences.” Felony murder is an off-grid crime.
K.S.A. 21-4720(b)(5) provides that“[n]onbase sentences will not have criminal history scores applied, as calculated in the criminal history I column of the grid, but base sentences will have the full criminal history score assigned.” Because felony murder cannot be the primary crime under the KSGA, criminal discharge of a firearm at an occupied dwelling becomes the primary crime and the full criminal history score is assigned to the corresponding base sentence. Accordingly, the trial court correctly calculated Walker’s sentence and it is not illegal.
As for Walker’s contention that the “increase” in his sentence showed vindictiveness on the part of the sentencing judge, this argument also fails. Walker received a correct, legal, presumptive sentence at his second sentencing hearing. K.S.A. 21-4721(e)(1) permits appellate courts to review claims of partiality, prejudice, oppression, or corrupt motive where the sentence “departs from the presumptive sentence.” No departure sentence was imposed in this case.
Walker relies on North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969), and State v. Rinck, 260 Kan. 634, 638-40, 923 P.2d 67 (1996), to argue that judicial vindictiveness is presumed because he received a greater penalty at resentencing. Pearce “involved two separate cases where the defendants successfully appealed their original convictions and on retrial received greater sentences than they had received originally.” 260 Kan. at 637. The Pearce Court noted that due process prevents increased sentences actually motivated by vindictive retaliation by the trial court upon resentencing:
“In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of tire record, so drat the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.” 395 U.S. at 726.
In Rinck, this court set aside the defendant’s sentences on appeal and remanded the matter for resentencing. Upon resentencing, based upon the same two convictions, the defendant received a more severe sentence than the sentence originally imposed. 260 Kan. at 638. Relying on Pearce, this court determined that, where resentencing results in seemingly unjustified enhancement of sentences, there is a presumption of vindictiveness. 260 Kan. at 640-41. Where such a presumption applies, the sentencing judge or the prosecutor must rebut the presumption that the increased sentence resulted from actual vindictiveness. 260 Kan. at 642. The rebuttal did not occur in Pearce, and this court held that the defendant’s due process rights were violated. The increased sentence was deemed to be motivated by vindictiveness and was set aside. 260 Kan. at 645.
In the present case, the sentencing court explained on the record that Walker’s original sentence was calculated incorrectly. It was determined that the criminal discharge offense should have been assigned a criminal history score of “F” instead of “I,” which changed the presumptive range on the sentencing grid. Thus, any possible presumption of vindictiveness was completely dissuaded by the court’s clear and sound explanation.
The trial court’s imposition of Walker’s sentence for the criminal discharge of a firearm conviction under the KSGA was neither vindictive nor illegal.
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The opinion of the court was delivered by
Beier, J.:
This case arises out of an auto accident in which plaintiff Jimmy L. Nungesser was seriously injured. It requires us to consider whether Kansas law permitted defendant Josh M. Bryant to pursue an action alleging negligent or bad faith failure to settle by his insurer, EMCASCO Insurance Company (EMCASCO), before his liability on Nungesser’s personal injury claim had been established.
The district court permitted Bryant’s claim against EMCASCO to go forward, and EMCASCO now appeals the determination that it must pay a $2 million consent judgment entered in favor of Nungesser and against Bryant, as well as attorney fees under K.S.A. 40-256 and K.S.A. 40-908.
A review of the relevant factual and procedural chronology is required for our analysis.
The accident occurred on July 8, 2002. Bryant, a minor, driving a pickup truck, failed to yield the right of way to Nungesser, who was riding a motorcycle. Nungesser suffered a serious brain injury.
For a period of time after the accident, Nungesser was hospitalized at Wesley Medical Center in Wichita, pursuant to a preferred-provider arrangement between Wesley and Nungesser’s health maintenance organization, Coventry Health Care. After Nungesser was discharged, Wesley filed notice of a $45,532.85 hospital lien and served Nungesser, Bryant, and EMCASCO.
The Biyant family’s auto policy with EMCASCO had a $300,000 single liability limit. EMCASCO received notice of the collision and Nungesser s claim 2 days after the accident, and its claims adjuster, Bruce Fischer, began his investigation. During the third week of August 2002, when Fischer learned the extent of Nungesser s injuries, he suggested to EMCASCO that potential liability to Nungesser would exceed the pohcy hmit and that EMCASCO should settle the claim.
Within a few days, Fischer extended an oral offer to Nungesser’s wife, Carolyn, to settle for the pohcy hmit, payment to be made in the form of a check made out to Nungesser and Wesley jointly. The Nungessers’ attorney, David G. Crockett, discussed the offer with Fischer, including the Wesley hen. Crockett was investigating the validity of the hen, which he beheved was contraiy to law.
Fischer confirmed EMCASCO’s earlier oral offer to settle for the pohcy limit in a September 4, 2002, letter to Crockett.
On September 30, 2002, Wesley submitted Nungesser’s bill to Coventry. The amount due from the Nungessers personally, according to a Coventry statement sent to the Nungessers on October 4, 2002, was $180.
On October 2, 2002, Crockett drafted but never mailed a letter to Fischer. The draft expressed specific objections to the Wesley hen and suggested that the Nungessers were prepared to accept EMCASCO’s offer of the pohcy hmit if the settlement check were made payable to Nungesser and his attorney, rather than to Nungesser and Wesley.
On October 9, 2002, Carolyn Nungesser attempted to pay Wesley $180 with a “payment in full” notation on her check. She included a note, which read in part:
“I am enclosing our check for $180.00 to pay the enclosed bill.
“Your hospital [hen], “Wesley’s/ will not let [EMCASCO] pay $300,000.00 to Jim for our settlement.
“This check should take care of Wesley[’]s bill. Please notify [EMCASCO] that you have withdrawn [the hen] immediately so we can conclude our settlement.”
Wesley rejected the check marked “payment in full” and requested one without such a notation, as Coventiy had not yet paid Nungesser’s balance. The Nungessers offered no such payment.
On October 23,2002, Fischer mailed a second letter to Crockett, offering to settle Nungesser’s claim against Bryant for the pohcy limit by forwarding a check payable jointly to Nungesser and Wesley. Fischer later testified that Crockett did not respond to this offer.
On October 28, 2002, Wesley served on Nungesser, Bryant, and EMCASCO an amended hen notice in the amount of $49,993. Approximately 1 month later, the Nungessers hired attorney Jacob S. Graybill to assist Crockett with claims against Biyant and Wesley.
On December 18, 2002, in a telephone conversation with Fischer, Crockett orally offered to settle Nungessers claim in exchange for a $300,000 check payable to Nungesser and Crockett rather than to Nungesser and Wesley. Crockett also offered to escrow money in his trust account to address Wesley s $49,993 lien.
The next day, before taking time off during the holidays, Fischer left a telephone message for Crockett, stating that EMCASCO would not agree to setde unless Wesley was named as a joint payee on the check.
On December 31, 2002, Crockett sent the following letter to Fischer:
“This letter will recap our conversation on December 18 and your telephone message on December 19. . . . When we spoke on December 18, I told you that we were willing to accept your offer of coverage limits . . . but that we needed to make some arrangement with [EMCASCO] in order that we could do so without allowing Wesley Medical Center to control the settlement proceeds. . . . I offered to escrow money in my trust account so that we could settle with [EMCASCO] without capitulating to Wesleys demands. You told me you would look into this and call back the following day since you were getting ready to take some vacation time over the holidays. You did express some concern because you said Wesley s attorney, Curtis Loub, had been very aggressive in asserting Wesley’s claims against our settlement proceeds.
“On December 19 you did call, and you left a message stating that, because of Wesley’s demands, [EMCASCO] would not pay the settlement proceeds unless Wesley were named on the check — right along with Jim Nungesser — as a joint payee! Obviously this would mean that the only way Jim could receive any money from [EMCASCO] would be if he surrendered to all the claims of Wesley.
“It would . . . seem to me that Wesley has interfered with Mr. Bryant’s legitimate expectation that the limit of his liability insurance would be available to buy his release from a claim that obviously exposes him to literally millions of dollars of liability.
“By persuading [EMCASCO] to refuse to pay the limit of Mr. Bryant’s insurance policy directly to Mr. Nungesser, Wesley has deprived Mr. Bryant of what will probably be the only opportunity he will ever have to purchase his complete release in return for the proceeds of a policy of insurance he paid for.
“In light of the foregoing, Mr. Nungesser has no alternative but to evaluate other alternatives.”
There is no dispute between the parties that Crockett’s December 31, 2002, letter accurately described the events of December 18 and 19. When Fischer received this letter, he contacted EMCASCO’s attorney, Charles Millsap, who in turn contacted Crockett on January 2, 2003, a Thursday. Millsap would later testily by way of affidavit that he had been given the impression when Fischer contacted him that an agreement to settle for the policy limit had already been reached. The parties also agree that no settlement offer was made by either party, nor any agreement reached, during the conversation between Crockett and Millsap on January 2. The two did discuss the potential for a lawsuit against Wesley. Crockett did not tell Millsap that Nungesser was prepared to file suit against Biyant within a few days.
Nungesser sued Biyant on January 6, 2003, the Monday following that Thursday, i.e., 1 business day after die conversation between Millsap and Crockett. Nungesser’s petition sought $10 million in damages.
One week later, Wesley filed a second amended lien notice, reducing die amount to $180. It released its lien altogedier a month later.
On January 15, Graybill sent a lengdiy letter to Millsap, enclosing a copy of the petition filed by Nungesser against Biyant. Among other things, Graybill’s letter stated that the Nungessers terminated “any further negotiations calculated to relieve Mr. Biyant of the full measure of his liability in return for payment” of the policy limit of $300,000. He also referred to $2 million plus as an amount for which die case might setde. He questioned the manner in which EMCASCO had conducted Bryant’s settlement negotiation, and further suggested that EMCASCO retain independent counsel for Biyant.
EMCASCO arranged for Marc Powell to defend Bryant in the suit filed by Nungesser; by early March, Bryant had hired Jeffery S. Carmichael to pursue a claim against EMCASCO. Powell filed Bryant’s answer to Nungesser’s petition on April 23,2003. On June 11,2003, Carmichael filed a third-party petition on Bryant’s behalf, naming Wesley and EMC Insurance Company (EMC), EMCASCO’s parent company, as defendants. Bryant later settled with Wesley and amended his third-party petition to substitute EMCASCO for EMC. He sought full indemnity from EMCASCO on tortious interference with contract and breach of fiduciary theories, claiming EMCASCO negligently or in bad faith failed to settle Nungesser’s claim within its $300,000 policy limit before suit was filed.
EMCASCO moved to dismiss Bryant’s third-party claims, arguing that a direct action against an auto insurer was prohibited and that it should not be a party to Nungesser’s tort action against Bryant unless and until judgment against Bryant was entered. District Judge Richard T. Ballinger denied EMCASCO’s motion on September 12, 2003, holding that the case did not qualify as a “direct action” but rather as an “indemnity claim,” and that questions of fact remained to be resolved.
On the same day, EMCASCO filed an interpleader action in federal court; it paid $300,000 to the clerk for apportionment by the court; it asserted that Nungesser had entered into a legally binding settlement agreement before his suit against Bryant was filed; and it sought enforcement of this agreement. Nungesser and Bryant obtained a stay of the federal proceedings pending tire outcome of this action. The federal case has since been dismissed.
The parties proceeded with discovery in this case in state court for nearly a year. In September and October 2004, they filed cross-motions for summary judgment on the settlement agreement issue, Nungesser arguing that no such agreement existed and EMCASCO and Bryant arguing that it did. Meanwhile, District Judge Karl W. Friedel conducted a pretrial conference in which he split the case three ways for the purpose of subsequent serial proceedings. He ruled that the court first would determine whether a binding settlement existed before suit was filed. If not, the parties would then try whether Bryant was liable in negligence to Nungesser. If so, then the parties would try whether Bryant was entitled to indemnity through his third-party claims against EMCASCO.
On October 22, 2004, EMCASCO again attempted to obtain summary disposition in its favor on Bryant’s third-party claims, this time filing a motion for summary judgment.
Pursuant to a mediation conducted in early November 2004, the parties entered into two agreements, one between Nungesser and Bryant, and one that also included EMCASCO.
Biyant and Nungesser agreed as between themselves to settle Nungesser’s negligence claim against Bryant through tire entry of a confessed judgment in the amount of $2 million. Bryant agreed to “pursue such claims as he may legitimately have against EMCASCO . . . for payment of the confessed judgment together with accrued interests and costs as Jim Nungesser may direct; provided, however, that Jim Nungesser shall save Josh Bryant harmless from all costs and expenses required to prosecute such action.” Bryant also granted to Nungesser
“a partial assignment of his contractual rights against EMCASCO sufficient in scope to give Nungesser standing to join Josh Biyant as a party Plaintiff against EMCASCO in a lawsuit, or in the lawsuit now pending, to recover Biyant’s and/ or Nungesser s damages reflected by the confessed judgment aforesaid from EMCASCO. Nothing in this assignment shall prevent such action from being prosecuted in Bryant’s name alone and such assignment shall enable and entitle Nungesser to continue to pursue EMCASCO in his name alone should Bryant fail to continue to pursue his claim against EMCASCO.”
The second, separate agreement among Nungesser, Bryant, and EMCASCO was designed to be effective “[o]n the condition that Nungesser prevails on the settlement issue,” and it provided:
“1. Josh Biyant, Jim Nungesser, and EMCASCO hereby agree for purposes of this limited settlement agreement that a reasonable estimate of the amount Josh Biyant will be found to be legally hable to pay to Jim Nungesser for his damages sustained as a result of bodily injuiy and property damage as a result of the subject accident is in the amount of $2,000,000.
“2. EMCASCO hereby agrees and consents that Josh Biyant may enter into a confession of judgment to Jim Nungesser in the amount of $2,000,000, in exchange for a covenant not to execute, without prejudicing in any way any rights Josh Biyant would otherwise have against EMCASCO, including, with out limitation, prejudicing any right he might otherwise have to assign his right to pursue claims for amounts in excess of policy limits against EMCASCO allegedly caused by, or the result of, EMCASCO’s negligence or bad faith.”
EMCASCO further agreed to dismiss its appeal of the stay that was entered in the federal interpleader action, and to consent to immediate delivery to the state court clerk of the $300,000 it had paid into the federal court. All parties agreed not to attempt an interlocutory appeal of any of the rulings expected on the pending summary judgment motions. However, all parties agreed that any party would be able to appeal an adverse order on those motions once the district court had entered a final judgment on all issues.
On November 18, 2004, District Judge Paul W. Clark heard arguments on the parties’ cross-motions for summary judgment on the issue of presuit settlement. The court held that, as a matter of law, there was no binding settlement. And, on December 1, Bryant served an offer to confess judgment in the amount of $2 million in answer to which Nungesser filed an acceptance.
Approximately 2 weeks later, Judge Clark heard EMCASCO’s motion for summary judgment on Bryant’s third-party claims. He denied the motion, determining that a jury must decide whether EMCASCO’s failure to deliver a settlement check payable to Nungesser and his attorney rather than Nungesser and Wesley was an act of negligence or bad faith. He also recognized the consent judgment in favor of Nungesser and against Bryant “in the reasonable amount of $2,000,000, pursuant to K.S.A. 60-2002(b), with the express consent of EMCASCO.”
On January 3,2005, EMCASCO filed another motion to dismiss, arguing that the November 2004 mediation agreement between Bryant and Nungesser precluded Bryant’s indemnity claim. Judge Clark denied the motion a week later.
Judge Clark presided over a jury trial of Bryant’s — -and now Nungesser’s — negligence and bad faith failure to settle claims against EMCASCO held January 11 through January 14,2005. At the close of the plaintiffs’ case, and again at the close of its own case, EMCASCO moved for a judgment as a matter of law. Judge Clark reserved ruling. Ultimately, the jury found EMCASCO had not acted in bad faith but had acted negligently in fading to settle Nungesser’s claim against Bryant before suit was filed. Judgment was entered in favor of Nungesser and against EMCASCO in the confessed amount of $2 million, and EMCASCO received an immediate credit of $300,000.
Bryant then filed a motion for attorney fees pursuant to K.S.A. 40-256 and/or K.S.A. 40-908. On February 11, 2005, Judge Clark heard argument on EMCASCO’s motion for judgment as a matter of law and on Nungesser’s motion for fees. The judge denied EMCASCO’s motion, stating: “[T]he case was well tried. The jury was properly instructed, and the verdict is well supported by the evidence.” The judge also determined that attorney fees were appropriate. After a later hearing, the judge set the amount of fees at $726,549.69.
Denial of EMCASCO’s First Motion to Dismiss
Although EMCASCO raises several issues for our consideration, our ruling on this issue is dispositive of much of this appeal. We therefore analyze and discuss it first.
As set out above, EMCASCO moved to dismiss Bryant’s third-party negligence and bad faith failure to settle claims shortly after they were filed. On September 12, 2003, Judge Ballinger rejected EMCASCO’s argument that the claims were, at best, premature. He ruled that the third-party claims against EMCASCO could be litigated simultaneously with the underlying tort action brought by Nungesser against Bryant, stating the suit against EMCASCO did not qualify as a “direct action” but rather as an “indemnity claim.” He also said that questions of fact remained to be resolved.
We agree that questions of fact remained at that point regarding the appropriateness of EMCASCO’s actions during the negotiations between Fischer and Crockett and between Millsap and Crockett before Nungesser’s suit was filed. However, the judge erred. Simply put, an insured’s action against his or her insurer for negligent or bad faith failure to settle a case must wait for the liability of the insured to be decided. A defendant in an auto liability case may not sue his or her insurer on such claims until the tort claim against him or her has been reduced to judgment.
As an initial matter, we note Nungesser s assertion that EMCASCO failed to meet its burden to designate a record sufficient to establish this error. We disagree. Although neither the motion nor Bryant’s response appear in the record on appeal, the record contains a transcript of the hearing on the motion, including the lawyers’ arguments and Judge Ballinger’s pronouncement that “there are factual issues, and that this is not a direct action, it is an independent damage, so to speak, indemnity claim.” The hearing transcript adequately illuminates the choice put to the district court and makes the record more than sufficient to address this purely legal question.
When entertaining a motion to dismiss for failure to state a claim, the district court is required to assume that the facts alleged by the plaintiff are true. It is then required to draw any reasonable inferences from those facts and determine whether the facts and inferences state a claim, not only on the theory espoused by the plaintiffs, but on any possible theory the court can divine. There are sound reasons for a certain degree of judicial skepticism toward such motions. Under Kansas’ notice pleading, a petition is not intended to govern the entire course of the case. Rather, the ultimate legal issues and theories on which the case will be decided are reduced to writing in the pretrial order, typically entered at the close of discovery. Halley v. Barnabe, 271 Kan. 652, 656-57, 24 P.3d 140 (2001); see Bland v. Scott, 279 Kan. 962, 963-64, 112 P.3d 941 (2005). Under this standard of review, we must uphold the district court’s decision unless the allegations contained in Bryant’s third-party petition against EMCASCO were not legally cognizable.
Bryant argues that K.S.A. 60-214 authorized his action against EMCASCO. K.S.A. 60-214, a part of tire Kansas Code of Civil Procedure, states in pertinent part:
“At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and petition to be served upon a person not a party to the action who is or may be liable to the third-party plaintiff for all or part of the plaintiff s claim against the third-party plaintiff.” K.S.A. 60-214(a).
Bryant is correct that this statute provides a procedural vehicle for a defendant, acting as a third-party plaintiff, to implead a third- party defendant. Third-party practice is aimed at settling, in a single lawsuit, as many aspects of a controversy as possible. U. S. Fidelity & Guaranty Co. v. Continental Ins. Co., 216 Kan. 5, 11-13, 531 P.2d 9 (1975) (defending party in negligence action could implead his two liability insurers to settle issue of which had duty to provide defense, coverage). However, K.S.A. 60-214 does not create any substantive rights. Alseike v. Miller, 196 Kan. 547, Syl. ¶ 1, 412 P.2d 1007 (1966). It does not answer the question of whether there was a legal basis for Biyant’s claim against EMCASCO at the time Judge Ballinger conducted the September 2003 hearing on the motion to dismiss.
Kansas has long recognized an insured’s action for negligence or bad faith against his or her insurer. See Bollinger v. Nuss, 202 Kan. 326, 332-33, 449 P.2d 502 (1969) (liability may be imposed against insurer for negligence or bad faith in defending, setting claim against insured); Bennett v. Conrady, 180 Kan. 485, Syl. ¶ 3, 305 P.2d 823 (1957) (insurer on liability or indemnity policy liable for full amount of insured’s loss, including excess, for negligence or bad faith in defending, settling action against insured); Anderson v. Surety Co., 107 Kan. 375, Syl. ¶ 1, 191 Pac. 583 (1921) (insurer liable for full amount of insured’s loss, irrespective of policy limits, if negligent in conducting defense for insured). Although the third-party petition framed tire causes of action against EMCASCO in fiduciary duty language, a negligence action sounds in tort, while an action alleging breach of a duty of good faith sounds in contract. See Glenn v. Fleming, 247 Kan. 296, 311-13, 799 P.2d 79 (1990); Spencer v. Aetna Life & Casualty Ins. Co., 227 Kan. 914, 920, 611 P.2d 149 (1980).
The key question in this case, and the basis of EMCASCO’s argument, is not whether such an action can stand but when — the critical factor is timing. Was it permissible for Bryant’s third-party suit against EMCASCO to proceed before the underlying tort action brought by Nungesser against Bryant had concluded?
Our review of Kansas case law persuades us that EMCASCO is correct that timing should have doomed the third-party action on EMCASCO’s first motion to dismiss. A liability insurer is not properly a party in a tort action arising from an auto accident, and no previous Kansas case has allowed an action against an insurer based on negligence or bad faith to proceed before a judgment has been reached in the underlying suit. Glenn, 247 Kan. 296 (bad faith claim brought in garnishment action against insurer after judgment received against insured); Bollinger, 202 Kan. 326 (garnishment proceeding to determine extent of insurer s liability where judgment rendered against insured exceeded policy limits; bad faith and negligence alleged); Bennett, 180 Kan. 485 (insurer settled with two of five claimants; three others received judgments against insured; insurer voluntarily made appearance, paid in rest of policy limits for court to divide pro rata in partial satisfaction of judgments; bad faith or negligence alleged); Anderson, 107 Kan. 375 (insurer failed to defend insured in negligence suit; judgment entered for plaintiff but verdict set aside; insurer refused postjudgment settlement offer for less than policy limit; new trial resulted in verdict exceeding limit; plaintiffs, insured commenced separate action seeking indemnity, claiming negligent failure to settle); Snodgrass v. State Farm Mut. Auto. Ins. Co., 15 Kan. App. 2d 153, 804 P.2d 1012, rev. denied 248 Kan. 997 (1991) (prevailing automobile accident victim, as assignee of other driver’s claim, brought action against other driver’s insurer, alleging wrongful denial of coverage); see also White v. Goodville Mut. Cas. Co., 226 Kan. 191, 596 P.2d 1229 (1979) (where no personal jurisdiction over defendant, plaintiff attempted to sue defendant’s insurer; insurer may not be made party to a lawsuit against its insured); King v. American Family Ins. Co., 19 Kan. App. 2d 620, 623-24, 874 P.2d 691 (1994) (driver could not file separate action against insurer based upon the same claim; absent statute or insurance contract provision, insurer may not be made original party to lawsuit against its insured).
The cases cited by Bryant and Nungesser to support tire opposite view, i.e., that an insurer can be brought into an underlying tort suit are distinguishable. They involved joining an insurer to litigate the existence of coverage under an insured’s policy. See U. S. Fidelity & Guaranty Co., 216 Kan. 5 (defending party in negligence action could implead his two liability insurers to settle issue of which had duty to provide defense and coverage); Heshion Motors v. Western Intern. Hotels, 600 S.W.2d 526, 536 (Mo. App. 1980) (insurer denied coverage and refused to defend suit; defendant permitted to implead insurer despite “no action [until final judgment]” provision in policy; “the occasion of impleading an insurer arises only in those limited instances where an insurer has disclaimed coverage and refused to defend on behalf of its insured”); see also Jordan v. Stephens, 7 F.R.D. 140, 142 (W. D. Mo. 1945) (insured may file complaint to join insurer as a third-party defendant and tender insurer as a defendant to satisfy plaintiffs claim where insured refused to defend the defendants or third-party plaintiffs in violation of insured’s policy). Coverage is not contested here. The dispute focuses instead on the appropriateness of EMCASCO’s presuit response to the Nungesser claim.
Our conclusion on the necessary sequence of events is also supported by language in Bryant’s EMCASCO insurance policy:
“A. No legal action may brought against us [EMCASCO] until:
1. We agree in writing that the insured has an obligation to pay; or
2. The amount of that obligation has been finally determined by judgment after trial.
“B. No person or organization has any right under this policy to bring us into any action to determine liability of an ‘insured.’ ”
It is also consistent with basic insurance law:
“A claimant cannot bring an action against an insurer seeking damages for the insurer’s allegedly wrongful refusal to negotiate in good faith with the claimants where no excess judgment has yet been rendered against the insured. Therefore, a cause of action for the bad-faith [or negligent] failure to settle a claim does not arise until there has been a final determination of the insured’s liability and the claimant’s damages, including resolution of any appeals.” (Emphasis added.) 44 Am. Jur. 2d, Insurance § 1394, p. 622.
And it is further supported by cases from other jurisdictions. In Blanchard v. State Farm Mut. Auto. Ins., 575 So. 2d 1289, 1291 (Fla. 1991), the Florida Supreme Court, in response to a question certified by the Eleventh Circuit Court of Appeals in the uninsured motorist context, settled a split among districts by holding that a cause of action for bad faith failure to settle did not accrue until the conclusion of the underlying litigation. Specifically, the court said:
“If an uninsured motorist is not liable to the insured for damages arising from an accident, then the insurer has not acted in bad faith in refusing to settle the claim. Thus, an insured’s underlying first-party action for insurance benefits against the insurer necessarily must be resolved favorably to tire insured before the cause of action for bad faith in settlement negotiations can accrue. It follows that an insured’s claim against an uninsured motorist carrier for failing to settle the claim in good faith does not accrue before the conclusion of the underlying litigation for the contractual uninsured motorist insurance benefits. Absent a determination of the existence of liability on the part of the uninsured tortfeasor and the extent of the plaintiff s damages, a cause of action cannot exist for a bad faith failure to settle.” 575 So. 2d at 1291.
In Lexington Ins. Co. v. Royal Ins. Co. of America, 886 F. Supp. 837 (N.D. Fla., 1995), the court relied on the Blanchard holding to dismiss a case in which an excess liability insurer had brought a state-court action against the primary liability insurer to recover for bad faith in failure to settle a tort case. The primary insurer moved for summary judgment, and the court held that questions of fact precluded summary judgment. However, the court also held that the excess insurer’s claim against tire primary insurer could not accrue while an appeal was pending in the underlying tort case; the primary insurer should have sought abatement of the litigation, rather than summary judgment. 886 F. Supp. at 840-42.
In Vest v. Travelers Ins. Co., 753 So. 2d 1270, 1276 (2000), the Florida Supreme Court held in accord with Blanchard that bringing an action alleging failure to exercise good faith in settlement negotiations “is premature until there is a determination of liability and extent of damages owed on the first-party insurance contract.”
Illinois appellate judges also have weighed in on this issue. In Scroggins v. Allstate Insurance Co., 74 Ill. App. 3d 1027, 1032, 393 N.E.2d 718 (1979), plaintiff pedestrians brought an action against tire driver of a vehicle and his father, seeking damages for injuries allegedly incurred when they were struck by the vehicle. The plaintiffs also included the defendant’s automobile liability insurer as a defendant, alleging bad faith in failing to settle their claims. The district court dismissed the insurer from the action, and pedestrians appealed from the dismissal. The appellate court decided that, even if the automobile liability insurer acted in bad faith in refusing to settle claims against insureds within the policy limit, the pedes trians did not have cause of action against insurer on the basis of its breach of duty to negotiate in good faith. That duty was owed to insureds and not to them. While such a claim is assignable, the insureds had not assigned it; and, furthermore, even if plaintiffs’ status as “potential judgment creditors” gave diem standing to bring a bad faith claim, they would not have been permitted to pursue such a claim until liability of the defendant had been established. The court stated:
“Plaintiffs have cited, and we have found, no case in tire country permitting a direct action against an insurer by a third party claimant at this stage of litigation, in the absence of statutory or contractual sanction of such an action. Neither have plaintiffs shown that the necessity for such an action outweighs the potential difficulties Allstate has argued are likely to ensue, such as tire possibility drat insurers will effectively be coerced into settling where their liability has not and may never be established. If plaintiffs do recover an excess judgment against Allstate’s insureds, and if they obtain by assignment any claim the insureds might have against Allstate, perhaps then they may have an action against Allstate. But under the case law discussed above, they clearly have no standing to bring such an action now.” Scroggins, 74 Ill. App. 3d at 1032.
Other Illinois cases have echoed Scroggins. See Lewis v. Royal Globe Insurance Co., 170 Ill. App. 3d 516, 520, 524 N.E.2d 1126 (1988) (quoting Richardson v. Economy Fire & Casualty Co., 109 Ill. 2d 41, 47, 485 N.E.2d 327 [1985]: well-established public policy in Illinois “ prohibits an injured party from recovering personal injury damages against an insurance carrier on account of the negligence of its insured prior to obtaining a judgment against the insured’ ”); see also Marchlik v. Coronet Insurance Co., 40 Ill. 2d 327, 332-34, 239 N.E.2d 799 (1968) (public policy precludes use of Illinois courts as forum for cases under Wisconsin direct action statutes which would permit suits against automobile liability insurers to be brought before insured’s liability is established).
We do not intend to be the first and only court in the country to permit an insured to implead his or her insurer to litigate its negligence or bad faith in failing to settle while the underlying liability of the insured is unresolved. Despite all of the water under the bridge in this case since Judge Ballinger’s error in September 2003, we cannot declare that error harmless. There is no way to know how or how much the presence of EMCASCO in the case from September 2003 forward altered subsequent events. We therefore reverse the jury’s verdict in favor of the Bryant and Nungesser parties and vacate the $2 million judgment and award of attorney fees. The agreements arising out of the mediation are null and void. With the exception of the issue discussed below, we must remand tire case to the district court for further proceedings, starting from the place the parties would have been in if Judge Ballinger had granted EMCASCO’s first motion to dismiss. This decision renders EMCASCO’s arguments on the sufficiency of the evidence to support the jury’s verdict and the merit and amount of the fees award moot. It also renders moot Bryant’s motion for attorney fees, expenses, and costs related to the appeal to this court.
Existence of a Presuit Settlement Agreement
Our decision on the previous issue does not moot EMCASCO’s appellate argument that Judge Clark erred in granting partial summary judgment in favor of Nungesser on the existence of a presuit settlement agreement. Although Judge Clark’s decision on this issue came long after Judge Ballinger’s September 2003 ruling on EMCASCO’s first motion to dismiss, it was controlled by unchangeable and uncontroverted facts that predated not only the motion to dismiss but also the entire case. In addition, we note that the issue of whether a binding settlement was effected presuit is one on which EMCASCO’s and Bryant’s interests are aligned. We therefore review the purely legal conclusion to be drawn from the undisputed facts, having had the benefit of full participation of all parties in the briefing and argument of this issue on appeal.
Judge Clark ruled: “As a matter of law, the communications between [Nungesser’s attorney], on behalf of Plaintiff, and Bruce Fischer, on behalf of defendant Josh Bryant and/or EMCASCO, did not form a settlement contract.” He set out several reasons for his conclusion, most significantly, that Bryant could not “establish a mutual agreement or a meeting of the minds.”
Ample Kansas case law supports the hornbook proposition that an unconditional and positive acceptance is required to form a contract; a conditional acceptance of a setdement offer is but a counteroffer, which does not create a contract. Steele v. Harrison, 220 Kan. 422, 428, 552 P.2d 957 (1976) (“It is fundamental that a communicated offer creates a power to accept the offer that is made, and only that offer. Any expression of assent that changes the terms of the offer in any material respect may be operative as a counter-offer, but it is not an acceptance and constitutes no contract. Unless the original offeror subsequently expresses unconditional assent to the counter-offer there will never be a contract.”); Seymour v. Armstrong, 62 Kan. 720, Syl. ¶ 2, 64 Pac. 612 (1901) (“If the acceptor affixes conditions to his acceptance not comprehended in the proposal, there can be no agreement without the assent of the proposer to such conditions); Restatement (Second) of Contracts § 59 (1979); 1 Corbin on Contracts § 3.28, pp. 457-63 Rev. ed. 1993 & 2006 Supp. In Judge Clark’s view, Nungesser never unconditionally accepted EMCASCO’s offer, and EMCASCO rejected Nungesser’s counteroffer.
This court’s standard of review on this issue is a familiar one:
“ ‘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 tire case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.’ [Citation omitted.]” State ex rel. Stovall v. Reliance Ins. Co., 278 Kan. 777, 788, 107 P.3d 1219 (2005).
When the evidence pertaining to the existence of a contract or the content of its terms is conflicting or permits more tiran one inference, a question of fact is presented. However, whether undisputed facts establish the existence and terms of a contract raises a question of law for the court’s determination. See Hays v. Underwood, 196 Kan. 265, 267, 411 P.2d 717 (1966). There is no factual dispute among the parties on the events leading up to the filing of Nungesser’s automobile negligence action against Bryant. Thus our appellate review of the district court’s ruling on summary judgment is unlimited. See Roy v. Young, 278 Kan. 244, 247, 93 P.3d 712 (2004).
EMCASCO suggests that “generally, a settlement agreement requires only an agreement concerning the amount to be paid to resolve the claim”; that an enforceable contract may exist despite the parties’ agreement to resolve nonessential terms at a later time; and that immaterial or minor differences or variances between an offer and acceptance will not prevent the formation of a contract, citing Giblin v. Giblin, 253 Kan. 240, 854 P.2d 816 (1993); Phillips & Easton Supply Co., Inc. v. Eleanor International, Inc., 212 Kan 730, 737, 512 P.2d 379 (1973); Connor v. Hammer, 201 Kan. 22, 439 P.2d 116 (1968); Lewis v. Gilbert, 14 Kan. App. 2d 201, 785 P.2d 1367 (1990).
EMCASCO also notes that no formal exchanges of offer and acceptance are needed to create a legally binding settlement contract. An offer that does not specify any particular means of acceptance may be accepted in any reasonable manner. EMCASCO combines these correct statements of law with the argument that the October 9,2003, note accompanying Carolyn Nungesser’s $180 check to Wesley — which demanded the lien be released so that “we can conclude our settlement” — referred “to an existing agreement, not a pending offer tiran might be accepted if future conditions are met.” Although it might be difficult to pinpoint the exact moment when a binding settlement agreement was reached, EMCASCO argues, the October 9 note made it clear that there was an agreement to settle by that time. In the alternative, it claims that Carolyn Nungesser’s note itself constituted an acceptance of EMCASCO’s offer to settle for the policy limit.
Both of these arguments were presented to and rejected by Judge Clark. Although the cases EMCASCO cites do stand for the general propositions of contract law they accompany, the cases do not support the assumption required to reach the outcome EMCASCO desires. Each case involves a situation in which unconditional acceptance of all essential terms was clearly communicated. Giblin, 253 Kan. 240; Phillips & Easton Supply Co., Inc., 212 Kan 730; Connor, 201 Kan. 22; Lewis, 14 Kan. App. 2d 201. None holds that the point on which the parties continued to disagree here, i.e., the proper identity of the payee of the settlement proceeds, is a “nonessential” or “immaterial” term. In fact, disagreement between an offer and acceptance on that term is not a “minor variance.” On the contrary, such disagreement can be fatal to formation of a contract. EMCASCO cites no precedent to the contrary, and we are aware of none.
Furthermore, as the district court noted, it is well established that, in order to create a contract, an acceptance must be unconditional and unequivocal. See Steele, 220 Kan. at 428; Seymour, 62 Kan. 720, Syl. ¶ 2; Restatement (Second) of Contracts § 59; 1 Corbin on Contracts § 3.28, pp. 457-62. The uncontroverted facts in this case demonstrate that Nungesser never accepted the exact terms of EMCASCO’s offer, and EMCASCO refused before suit was filed to modify its offer to accommodate the conditions Nungesser required. Regardless of any language in Carolyn Nungesser’s October 9 note, there was never a binding settlement agreement before or after that date. Moreover, she did not have authority to bind her husband, and delivery of her note to Wesley could not constitute a communication of acceptance to EMCASCO, the offeror.
Given the discussion above, we affirm Judge Clark’s ruling in favor of Nungesser on the setdement agreement issue. No binding settlement was arrived at before Nungesser’s suit against Bryant was filed.
Affirmed in part, reversed in part, and remanded to the district court for further proceedings consistent with this opinion.
Nuss, J., not participating.
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The opinion of the court was delivered by
McFarland, C.J.:
Michael J. Brown was convicted by a jury of involuntary manslaughter while operating a vehicle under the influence of alcohol (K.S.A. 2006 Supp. 21-3442) and driving under the influence of alcohol (K.S.A. 2006 Supp. 8-1567[a][2]). He appealed his convictions and sentences to the Kansas Court of Appeals, raising several issues, including a claim that the trial court erred in denying his motion for discharge because he was not brought to trial within the applicable statutory speedy trial period.
The Kansas Court of Appeals affirmed Brown’s conviction for involuntary manslaughter while driving under the influence of alcohol, but vacated the sentence due to error in calculating criminal history and remanded for resentencing. The panel reversed the conviction of driving under the influence of alcohol on the ground it was multiplicitous. State v. Brown, 34 Kan. App. 2d 746, 124 P.3d 1035 (2005). One member of the panel (Assented on the speedy trial issue. We granted Brown’s petition for review on the single issue of whether Brown’s statutory right to speedy trial was violated.
The issue before us requires that we determine whether speedy trial delay due to the defendant’s continuance of the trial date is measured from the date the motion for continuance was granted or from the scheduled trial date. We hold that the period of delay to be assessed to the defendant began on the date the continuance was granted.
FACTS
On April 15, 2003, in Washington County, Michael Brown was operating a motor vehicle in which his wife and son were passengers. Brown made a wide turn into the westbound lane of Highway 36 heading east. The Brown vehicle collided with another vehicle driving westbound. Brown’s wife, Ruth, died the following day as a result of injuries sustained in the collision. Brown’s blood was tested and was found to contain a blood alcohol level of 0.10 grams of alcohol per 100 milliliters of blood. More details are set forth in State v. Brown, 34 Kan. App. 2d 746.
FACTS RELEVANT TO SPEEDY TRIAL
Brown was arraigned on June 4, 2003, and was taken into custody on that date. The court set the case for jury trial to begin August 20, 2003. On July 30, 2003, Brown’s attorney filed a motion to continue the trial in order to retain an expert witness. On August 1, 2003, the trial court granted the motion and reset the trial to October 27, 2003. The journal entry granting the motion stated: “The time is assessed to the defendant.”
On October 27, 2003, the county attorney was ill. This caused the trial court to vacate the trial date and set the case for a trial rescheduling conference to be held November 6, 2003. As a result of tlris conference, the trial was reset for November 20, 2003.
On November 13, 2003, Brown filed a motion for discharge pursuant to K.S.A. 22-3402 alleging that the statutory 90-day period expired on November 9, 2003. Brown contended that the delay caused by his continuance commenced to run on August 20, 2003, the original trial date. The State countered that the delay attributable to Brown’s continuance should be computed from August 1, 2003, the date the continuance was granted. If the 19 days between the date the motion was granted and the originally scheduled trial date are assessed to the defendant, then only 82 days elapsed between arraignment and trial. If the 19 days are assessed to the State, then 101 days had elapsed.
For convenience, the following chart shows the relevant chronological events and the period in dispute:
DATE(S) EVENT NO. OF CHARGEABLE TO: DAYS STATE DEF. DISPUTED
1. 6/4/03 to 8/1/03 Arraignment; case set for jury trial 8/20/03. 57 57 0 No
2. 8/1/03 to 8/20/03 Defendant’s motion for continuance to retain expert granted; jury trial reset for 10/27/03. 19 Yes
3. 8/20/03 Period of time 68 to between original 10/27/03 trial date and rescheduled trial date. 68 No
4. 10/27/03 Trial date vacated 25 to due to county 11/20/03 attorney’s illness; trial rescheduled for 11/20/03. Trial commenced 11/20/03. 25 No
TOTALS 169 82 68 19
The trial court assessed the 19 days in dispute to Brown, holding: “Because the continuance was sought by defendant it seems logical that the time chargeable to defendant should be from the time his motion was granted (August 1, 2003) to the continued trial date (October 27, 2003).”
The Court of Appeals affirmed the district court’s denial of the motion for discharge, with two members of the panel holding that the delay from the date the continuance was granted until the rescheduled trial date was chargeable against the defendant for speedy trial purposes pursuant to K.S.A. 22-3402(1). State v. Brown, 34 Kan. App. 2d 746, Syl. ¶ 2. The dissent disagreed, contending that the period of delay should be computed from the originally scheduled trial date.
ISSUE
The same narrow issue is the sole issue before us. Under the facts herein, should the 19 days between the granting of tire defendant’s motion for a continuance and the original trial date be charged to the defendant for computation of statutory speedy trial purposes? Our answer is yes.
STANDARD OF REVIEW
A claimed violation of the statutory right to speedy trial presents an issue of law over which we have unlimited review. State v. White, 275 Kan. 580, 598, 67 P.3d 138 (2003). Moreover, the question of how to compute the number of days to be excluded from the statutory speedy trial calculation involves statutory interpretation, which is also a question of law over which we have unlimited review. See 275 Kan. at 600.
APPLICABLE STATUTE
K.S.A. 22-3402 governs the statutory right to speedy trial and provides in pertinent part:
“(1) If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within ninety (90) days after such person’s arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of tire defendant, or a continuance shall be ordered by the court under subsection (3).
“(3) The time for trial may be extended beyond the Hmitations of subsections (1) and (2) of this section for any of the following reasons:
(a) The defendant is incompetent to stand trial;
(b) A proceeding to determine the defendant’s competency to stand trial is pending and a determination thereof may not be completed within the time limitations fixed for trial by this section;
(c) There is material evidence which is unavailable; that reasonable efforts have been made to procure such evidence; and that there are reasonable grounds to believe that such evidence can be obtained and trial commenced within the next succeeding 90 days. Not more than one continuance may be granted the state on this ground, unless for good cause shown, where the original continuance was for less than 90 days, and the trial is commenced within one hundred twenty (120) days from the original trial date;
(d) Because of other cases pending for trial, the court does not have sufficient time to commence the trial of the case within the time fixed for trial by this section. Not more than one continuance of not more than thirty (30) days maybe ordered upon this ground.”
DISCUSSION
Although it is the State’s obligation to ensure that the accused is brought to trial within the applicable speedy trial period, delays which result from the defendant’s application or fault are not counted in computing the statutory period. State v. Southard, 261 Kan. 744, 746, 933 P.2d 730 (1997). Such delays include those which result from a continuance granted at the request of the defendant. A defendant, by requesting or acquiescing in the grant of a continuance, waives the statutory right to a speedy trial. State v. Bafford, 255 Kan. 888, 892, 879 P.2d 613 (1994).
While K.S.A. 22-3402(1) provides that delay caused by a continuance granted at the defendant’s request is excluded from the speedy trial calculation, it does not set forth how to compute such delay. Further, the parties have not cited, nor have we found, a case in which we have been asked to determine whether speedy trial delay due to the granting of a defendant’s motion for continuance should be measured from the date the continuance was granted, or from the previously set trial date. Thus, this is an issue of first impression.
We note there are cases in which delay due to a defense continuance was computed, but the results are inconsistent because the question of when to begin counting was not at issue. See, e.g., State v. Smallwood, 264 Kan. 69, 955 P.2d 1209 (1998) (101 days of delay, which was the time period between original trial setting and new trial date, attributed to defendant’s continuance); State v. Bean, 236 Kan. 389, 691 P.2d 30 (1984) (defendant charged with delay due to continuance from originally scheduled trial date to new trial date); State v. Arrocha, 30 Kan. App. 2d 120, 39 P.3d 101, rev. denied 273 Kan. 1037 (2002) (date defense continuance was granted served as the stalling point for computing the period of delay attributed to defendant).
There are also cases addressing delay caused by defense motions, such as motions to suppress, or the filing of a notice of intent to rely on an insanity defense. See, e.g., State v. Southard, 261 Kan. 744 (where defense counsel at arraignment requested a hearing date for anticipated motion to suppress that was later withdrawn, period of time between arraignment and the hearing chargeable to the defendant); City of Dodge City v. Downing, 257 Kan. 561, 894 P.2d 206 (1995) (period of delay between the date the defendant filed a motion to suppress and a reasonable period of time for the court to rule on it attributed to the defendant); State v. Ji, 251 Kan. 3, 832 P.2d 1176 (1992) (period between date defendant filed notice of intent to rely on insanity defense until date report filed attributed to defendant). Those cases, however, do not involve continuance of a previously scheduled trial date and, thus, are of little assistance herein.
We have, however, considered how to compute excludable delay with respect to continuances obtained by the State under 22-3402(3)(c). In State v. White, 275 Kan. 580, we held that the 90-day period allowed for a continuance granted to the State under K.S.A. 22-3402(3)(c) begins on the original trial date, not on the date on which the motion to continue was granted. 275 Kan. 580, Syl. ¶ 12. However, this conclusion rested heavily on the specific wording of subsection (3)(c):
“The portion of K.S.A. 22-3402(3)(c) allowing the 90-day continuance simply states that the trial may be continued if there are reasonable grounds to believe the trial can begin ‘within the next succeeding ninety (90) days.’ The next sentence allows for another continuance for good cause shown if the original continuance was for less than 90 days ‘and the trial is commenced within one hundred twenty (120) days from the original trial date.’ (Emphasis added.).” 275 Kan. at 600-01.
White is not controlling or persuasive on the issue before us. There is a significant difference between the language used in K.S.A. 22-3402(1), which excludes delay that results from the “application or fault of the defendant,” and the language used in K.S.A. 22-3402(3)(c), which refers to continuances for specific reasons and specific time periods from the original trial date.
With no case on point interpreting K.S.A. 22-3402(1), we look to the language of the statute. The rules governing our role are well established:
“The fundamental rule of statutory construction is to ascertain the legislature’s intent. The legislature is presumed to have expressed its intent through the language of the statutory scheme. Ordinary words are given their ordinary meanings. A statute should not be read to add language that is not found in it or to exclude language that is found in it. When a statute is plain and unambiguous, the court must give effect to the legislature’s intent as expressed rather than determining what the law should or should not be. [Citation omitted.]” State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006).
Applying this rule, we see that K.S.A. 22-3402(1) provides— without restriction — that delay that happens as a result of the application or fault of the defendant shall not be considered in computing statutory speedy trial. On the other hand, delay due to a continuance permitted to the State under subsection (3)(c) specifically references the “original trial date” as the operative date for computing an extension of the speedy trial time period.
The fact that subsection (1) attributes delay caused by the defendant without restriction, while a time extension due to the State’s continuance under subsection (3)(c) is restricted, is a clear expression of the fact that it is the State’s obligation, not the defendant’s, to insure that the accused is brought to trial within the statutory speedy trial period. See State v. Warren, 224 Kan. 454, 456, 580 P.2d 1336 (1978). Thus, the speedy trial clock runs against the State, unless it is stopped under K.S.A. 22-3402(1) as a result of the fault or application of the defendant or the time is extended under 22-3402(3). Accordingly, a continuance granted to the State extends the speedy trial period under very specific and narrow circumstances — upon a showing that the continuance is needed to obtain material evidence, that reasonable efforts have been made to procure such evidence, and that such evidence can be obtained and trial commenced within the next 90 days. K.S.A. 22-3402(3)(c).
On the other hand, the right to a speedy trial is a right or benefit provided to the defendant; as such, the defendant may waive this right by requesting a continuance or otherwise delaying the trial. See State v. Bafford, 255 Kan. at 892. Thus, a trial continuance granted to a defendant for any reason stops the speedy trial clock. This includes not only continuances granted for “good cause,” but also any delay caused by the defendant, whether or not such delay was necessary, for a legitimate puipose, or a meritorious reason. Accordingly, the language of subsection (1) provides that delay that results from the defendant’s application or fault is not counted in computing the speedy trial period, with no operative date specified for computing such delay. We will not read an operative date into this language.
Clearly, under K.S.A. 22-3402, the provisions applicable to the defendant and to the State are veiy different. In his motion for a continuance, Brown sought time to retain an expert witness. He did not state what type of expert witness he was seeking, why he needed such a witness, or whether he had made reasonable efforts previously to secure such a witness. The statute does not require such justification on the part of a defendant. The State, on the other hand, would be required to justify such a request with specificity if its motion is going to extend the time. Illustrative of the difference is the effect of the second, trial date delay due to the county attorney’s illness. There is no provision in the statute extending the time as a result of a prosecutor’s illness, and there is no contention that it should have that effect herein. Yet, had the second trial date been delayed due to the illness of defendant or his counsel, the clock would have been stopped as the delay was the result of the fault of the defendant.
We reject the notion that the continuance did not actually cause delay until the original trial date passed. The matter of defendant possibly securing an expert witness was anticipated to be time consuming. There was no possibility the trial could have been rescheduled for August 20. The journal entry granting the continuance states in part:
“Thereupon, the court orders that die defendant provide the report of any expert defense witness to die State by September 10, 2003.
“Thereupon, the court orders the jury trial continued to October 27 and 28, 2003 at 9:00 a.m. if no notice of a defense expert witness is given. If notice of a defense expert is given the trial shall be scheduled for November 12,13, and 14, 2003 at 9:00 a.m.”
This case was set for trial on August 20, 2003 — a date within the speedy trial period. The only reason it did not go to trial that day was that the court granted the defendant’s request for continuance. In other words, but for the defendant’s successful request for a continuance, he would have been brought to trial on August 20, within the 90-day period mandated by K.S.A. 22-3402(1). As a practical matter, once tire continuance was granted, the original trial date was off the table and of no significance. Therefore, the appropriate commencement date for computing the delay caused by the continuance was the date the motion for continuance was granted.
The dissent contends the following quote from State v. Arrocha, 30 Kan. App. 2d 120, supports assessing the State with the 19 days between the date Brown’s motion was granted and the original trial:
“The State briefly argues that Arrocha acquiesced to all of the delay between August 17 and October 30. This argument is not supported by the record. On August 17, 2000, Arrocha requested a jury trial setting. The State announced it was ready for trial on September 18, but the defense was not. The court set tire case for trial to begin on October 30, and the defense, tire prosecution, and the court agreed that the defense would be assessed die time from September 18 to October 30. It is illogical to argue that the defense should also have been assessed the time from August 17 to September 18 when the State had sought the September 18 setting. The district court properly assessed the 32 days from August 17 to September 18 to the State.” (Emphasis added.) Arrocha, 30 Kan. App. 2d at 123.
The 32-day period in Arrocha is not, as the dissent contends, analogous to the 19 days at issue in this case. The instant case concerns a very narrow set of circumstances — the granting of a defense motion for continuance of a previously scheduled trial date. The 32-day period of time addressed in Arrocha did not involve a defense request for continuance of a previously set trial date. Moreover, as the dissent admits, in other parts of the Arrocha opinion involving defense continuances of previously set trial dates, the date those continuances were granted served as the starting point for counting delay attributed to the defendant. Under these circumstances, Arrocha is not helpful.
The recent changes to the speedy trial statute do not alter our conclusion. New subsection (3) of K.S.A. 2006 Supp. 22-3402 requires that a trial continued at the request of the defendant be rescheduled within 90 days of the original trial deadline:
“(3) If any trial scheduled within the time limitation prescribed by subsection (1) or (2) is delayed by the application of or at the request of the defendant, the trial shah be rescheduled within 90 days of the original trial deadline.”
The form of the statute before us has no comparable provision relative to trial delays on application of a defendant. This new subsection (3) requires the trial to be rescheduled within 90 days of the “original trial deadline,” not the “original trial date,” which is the term used in K.S.A. 2006 Supp. 22-3402(5)(c) (formerly [3][c]), relative to prosecution extensions. See L. 2004, ch. 47, sec. 1. This difference is significant and is not inconsistent with the result we reach herein. The 90-day clock continues to run unless there is a delay as a result of the application or fault of the defendant which stops the clock. When delay is caused by the prosecution, the time for trial may be extended if the reason therefor is within one of the statutory grounds therefor. The new subsection is aimed at placing a duty on the court and the State to restart the speedy trial clock which has been stopped by the application or fault of the defendant and to reset the trial date within a specific time period. This new provision does not affect the issue before us.
CONCLUSION
We hold that under the facts herein, the period of excludable delay to be charged to the defendant runs from the date the defendant’s motion for a continuance was granted and not from the previously scheduled trial date.
We affirm the Court of Appeals opinion affirming the district court’s denial of the motion for discharge.
Luckert, J., not participating.
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The opinion of the court was delivered by
Davis, J.:
Amy and James Bartle (the Bartles) appeal from a jury award in an eminent domain proceeding initiated by the Kansas Department of Transportation (KDOT) for the partial taking of their property for a highway improvement project in Douglas County, Kansas. They do not appeal the juiy determination of the fair market value of the property taken, but claim on appeal that they have been denied equal protection and due process of law under the United States Constitution. They base their claim upon legislation authorizing a payment of 125 percent to those persons whose property was taken to construct a racetrack in Wyandotte County, Kansas. The Bartles also seek costs and attorney fees under 42 U.S.C. § 1988 (2000). The trial court rejected both claims, and we affirm.
KDOT originally cross-appealed but now concedes that the 2006 legislative amendments to the provisions of K.S.A. 2005 Supp. 26- 508 resolve its claim that the district court lacked jurisdiction to hear the Bardes’ appeal due to their failure to timely pay the original filing fee. See K.S.A. 2006 Supp. 26-508. Therefore, we are left to consider only the issues raised by the Bardes. While we address most of their arguments in the resolution of this appeal, the dispositive question in this appeal is whether the district court had jurisdiction under the Eminent Domain Procedures Act (EDPA), K.S.A. 26-501 et seq., to consider the Bardes’ claims.
FACTS
In June 2003, Debra Miller, the Secretary of the Kansas Department of Transportation (the Secretary), initiated a condemnation action in the Douglas County District Court entided Miller v. Diamond Head Limited Partnership et al, Case No. 03-C-311. Through this action, KDOT sought to exercise its eminent domain power subject to K.S.A. 26-501 et seq. to acquire title or easements to land necessary to carry out a highway improvement project.
The Bardes were named as defendants to this condemnation action, due to their ownership of property in Lawrence, a portion of which was designated for taking. In particular, KDOT sought to acquire the property for a permanent easement for controlled access right-of-way (consisting of 3,960 square feet), as well as a permanent easement for public and utility purposes (consisting of 4,809 square feet). Thus, KDOT sought to condemn 8,769 square feet of die Bardes’ property.
On November 25, 2003, a panel of court-appointed appraisers submitted a report containing appraisal values for the various properties listed on the condemnation action. The appraisers determined that the Bardes’ taken property had an appraisal value of $32,000 (the fair market value of their property before the taking, $250,000, less the fair market value of their property after the taking, $218,000). Once this report had been filed, the Secretary paid to the clerk of the district court the total appraised value of the properties taken, including the $32,000 for the property formerly owned by the Bardes. Pursuant to K.S.A. 26-507, the Secretary’s payment of die appraisers’ award to the court immediately vested KDOT with tide to the condemned property.
On December 22,' 2003, the Bartles filed a notice of appeal with the district court, appealing the appraisers’ award pursuant to K.S.A. 2005 Supp. 26-508 and requesting a jury trial to determine the compensation to be paid for the taking of their property. The appeal was filed under the same caption and case number as the original eminent domain proceeding. However, the Bartles failed to pay the docket fee when they filed their appeal.
The Secretaiy filed a motion to dismiss tire Bartles’ appeal in the eminent domain administrative proceeding; this motion was denied.
After this motion was denied, the district judge directed that the Bartles should be allowed to docket their appeal and pay the fifing fee. The appeal was docketed as a civil case, In re Appeal of Amy L. Bartle and James A. D. Bartle, Case No. 04-C-155, on March 19, 2004, and the Bartles paid the fifing fee on that same date.
The Secretary refiled the motion to dismiss in the civil action before the district court, Case No. 04-C-155, asserting that the Bartles had failed to perfect their appeal in accordance with K.S.A. 2005 Supp. 26-508 because they had not docketed the appeal as a new civil action or paid the docket fee. In addition, KDOT asserted that the court lacked jurisdiction to extend the time for properly perfecting the Bartles’ appeal. The court subsequently denied this motion.
In its pretrial questionnaire before the district court, KDOT submitted that the Bartles were entitled to receive $35,600 for the taking of their property. This number was based on information contained in a report prepared by KDOT’s designated expert, who found that the “before value” of the Bartles’ property was $260,000 and the “after value” was $224,400 ($260,000 — $224,400 = $35,600).
Prior to trial, the Bartles filed two motions. The first motion sought to compute the compensation to be awarded for the taking of their property in an amount equal to 125 percent of the fair market value of their property. In particular, the Bartles argued in their motion that the provision of K.S.A. 2005 Supp. 12-1773, which provided for an additional 25 percent of the fair market value to be awarded to condemnees’ whose property was taken for the construction of the Kansas Speedway, violated the Equal Protection and Due Process Clauses of the United States Constitution.
The second motion sought an award for costs and attorney fees subject to 42 U.S.C. § 1988. According to tire Bartles’ argument, KDOT violated the Bartles’ Fifth Amendment right to “just compensation” because KDOT only paid $32,000 to the court at the previous condemnation proceeding and the Department’s own expert in the current trial stated that the property was worth $35,600. The Bartles thus argued that they were “prevailing” parties within the meaning of 42 U.S.C. § 1988 and were entitled to costs and attorney fees.
At a hearing on these motions, the court deferred its ruling on the attorney fees issue but denied the Bardes’ motion concerning the constitutionality of K.S.A. 2005 Supp. 12-1773 because “in this regard and how we’re before the Court, on an appeal as to what is proper compensation, it is not the place for it to be raised.”
A juiy awarded the Bartles $40,342.95 as compensation for the property taken, based on a fair market value of $264,000 before the taking minus the after value of $223,657.05. In addition, the Bartles were awarded interest on $8,342.95 (the portion of the award in excess of the $32,000 awarded in the condemnation proceeding).
When the jury returned its award, the Bartles renewed their motions for attorney fees pursuant to 42 U.S.C. § 1988 and for an The court denied both motions.
The Bartles subsequently appealed. Though the Bartles do not appeal the jury’s determination of the fair market value of their property taken, they assert that the district court was incorrect in its denial of their two motions. The Bartles claim the district court improperly denied its motion for compensation of 125 percent of the fair market value of their condemned properly, based on their argument that the provision in K.S.A. 2005 Supp. 12-1773 (which awarded an additional 25 percent of the fair market value for property taken for construction of the Kansas Speedway) violates the Equal Protection and Due Process Clauses of the United States Constitution. In addition, the Bartles appeal the district court’s denial of their motion for costs and attorney fees subject to 42 U.S.C. § 1988.
The Secretary asserts that the Bartles were precluded from arguing constitutional issues in their appeal from the eminent domain hearing because K.S.A. 2005 Supp. 26-508 specifically limits the issue to be raised in such a proceeding to the compensation required under K.S.A. 26-513. The Secretary states that diese issues should have been brought in a separate civil action, such as a declaratory action or an action for injunctive relief, not in the context of an eminent domain appeal.
Justiciability of the Bartles’ Claims
The resolution of this question involves an interpretation of the Eminent Domain Procedure Act (EDPA), K.S.A. 26-501 et seq. Our standard of review is well established:
“The interpretation of a statute is a question of law over which this court’s review is unlimited. This court is not bound by the district court’s interpretation of a statute. A statute which confers the right to exercise the power of eminent domain is to be strictly construed in light of the objectives and the purposes sought to be attained by its enactment.” Nat’l Compressed Steel Corp. v. Unified Gov’t of Wyandotte County/Kansas City, 272 Kan. 1239, Syl. ¶ 5, 38 P.3d 723 (2002).
Before discussing the merits of the Bartles’ claims, we first consider the nature of an eminent domain action in Kansas. In re Condemnation of Land for State Highway Purposes, 235 Kan. 676, 678-79, 683 P.2d 1247 (1984), contains an excellent description of the nature of the action we consider in this appeal:
“Prior to the enactment of our present Eminent Domain Procedure Act in 1963 (now K.S.A. 26-501 et seq.), we considered the nature of original eminent domain proceedings in Sutton v. Frazier, 183 Kan. 33, 37, 325 P.2d 338 (1958). We said:
‘An eminent domain proceeding is a special statutory proceeding and is not a civil action covered by the code of civil procedure. The proceeding is administrative rather than judicial, and its nature is the same whether conducted by or before a district court, or any judge thereof, the probate court, or its judge, a board of county commissioners or any other official board or tribunal authorized by the legislature to act in that capacity. The amount to be paid is determined by commissioners or appraisers and not by the board or tribunal appointing them or with whom they filed their report. The report of the amount found due is an award and is not a judgment. Prior to an appeal from the award the proceeding is in the nature of an inquest.
‘The eminent domain proceeding does not provide a forum for litigation of tire right to exercise tire power of eminent domain nor the extent diereof. Upon appeal to the district court from an award the sole issue is the amount of compensation due and no contest of the condemner’s right to exercise the power of eminent domain is permitted. The condemnees may and must litigate the condemner’s right to die exercise of the power of eminent domain in an individual civil action, usually by suit for injunction. [Citations omitted.]
‘Under the positive and express language of the cited cases, and many others collected in them, die condemnees (appellant’s lessors) had no right whatever to litigate in die eminent domain proceeding the extent of the power of eminent domain conferred upon Sunflower by the legislature. The eminent domain proceeding, tiierefore, did not afford condemnees an opportunity to litigate the condemner’s right to condemn oil and gas in place.’ ” (Emphasis added.)
The 1963 EDPA did not change the nature of the proceedings in a condemnation action. The proceedings remain statutory, in tire nature of an inquest. An eminent domain action in Kansas is not judicial in nature, and the procedures approved by prior law in this state should be followed. See Urban Renewal Agency v. Decker, 197 Kan. 157, 161-62, 415 P.2d 373 (1966). In Kansas Gas & Electric Co. v. Winn, 227 Kan. 101, 605 P.2d 125 (1980), this court, relying upon prior case law dealing with eminent domain law in Kansas, set forth basic principles governing eminent domain proceedings under our statutory law:
“A condemnation proceeding instituted under K.S.A. 26-501 et seq., is a special statutory proceeding. Such proceeding does not provide a forum for litigation over the right to exercise eminent domain or to determine the extent of said right.” Syl. ¶ 5.
“The right to exercise the power of eminent domain and to determine other issues such as the necessity and die extent of the taking can only be litigated in an individual civil action, usually by suit for injunction.” Syl. ¶ 6.
“In an eminent domain proceeding the court has no right to litigate ... in an effort to restrict and limit the rights appropriated.” Syl. ¶ 8.
The Eminent Domain Procedures Act
K.S.A. 2005 Supp. 26-508 provides in relevant part:
“An appeal by die plaintiff or any defendant shall bring the issue of damages to all interests in die tract before the court for trial de novo. The appeal shall be docketed as a new civil action and tried as any other civil action. The only issue to be determined therein shall be the compensation required by K.S.A. 26-513, and amendments thereto.” (Emphasis added.)
K.S.A. 26-513(a) states that “[p]rivate property shall not be taken or damaged for public use without just compensation.” In cases of a partial taking where “only a part of a tract of land or interest is taken,” such as the taking that occurred in this case, the statute provides that “the compensation and measure of damages is the difference between the fair market value of the entire property or interest immediately before the taking, and the value of that portion of the tract or interest remaining immediately after the taking.” K.S.A. 26-513(c).
Fair market value is defined in K.S.A. 26-513(e) as
“tire amount in terms of money that a well informed buyer is justified in paying and a well informed seller is justified in accepting for property in an open and competitive market, assuming that the parties are acting without undue compulsion. The fair market value shall be determined by use of the comparable sales, cost or capitalization of income appraisal methods or any combination of such methods.”
The plain language of K.S.A. 2005 Supp. 26-508 limits the district court’s jurisdiction in appeals from eminent domain proceedings to the issue of compensation — that is, to a determination of the fair market value of the property in question, as defined in K.S.A. 26-513(e). According to the Bartles, the issues raised relate to just compensation, but the plain statutory language quoted above limits issues to a determination of the fair market value only. Compensation beyond fair market value is not justiciable in an eminent domain proceeding.
The district court denied the Bartles’ motion that their compensation be computed at 125 percent of the fair market value, a motion based on constitutional questions of equal protection and due process. The court concluded that “this [an appeal from the eminent domain proceeding] is not the proper forum to raise these matters.” The court also denied the motion for attorney fees subject to 42 U.S.C. § 1988 on other grounds, stating that “if you grant attorney’s fees under the federal statute, you make meaningless the State statute” awarding attorney fees only if the condemning authority appeals.
Past opinions of this court support the district court’s conclusion that K.S.A. 2005 Supp. 26-508 precludes the Bartles from raising their claims in an appeal from an eminent domain proceeding. As this court explained in In re Condemnation of Land for State Highway Purposes, 235 Kan. 676, Syl. ¶ 1, “[a] condemnation proceeding instituted under K.S.A. 26-501 et seq. is a special statutory proceeding. Such proceeding does not provide a forum for litigation over the right to exercise eminent domain or to determine the extent of said right.”
The Bartles contend that eminent domain proceedings consist of two different actions: the initial action brought by the condemning authority pursuant to K. S .A. 26-501 et seq. and the appeal from the appraisers’ award pursuant to K.S.A. 2005 Supp. 26-508. Thus, the Bartles argue that although their constitutional questions could not be brought in tire original action commenced by KDOT, their appeal from that action brings “the issue of damages to all interests in the tract before the court for trial de novo” and is “docketed as a new civil action and tried as any other civil action.” K.S.A. 2005 Supp. 26-508. Because the appeal is tried “as any other civil action,” they assert that they are not precluded from raising their constitutional questions.
The above arguments depend upon a “selective reading” of tire statute and completely ignore the last sentence in K.S.A. 2005 Supp. 26-508: “The only issue to he determined [in the appeal] shall be the compensation required by K.S.A. 26-513, and amendments thereto.” (Emphasis added.) Moreover, it is clear that the legislature provided that the procedures governing the determination of fair market value on appeal are the same procedures employed in “any other civil action.” K.S.A. 2005 Supp. 26-508. That is not to say the outside issues raised by the Bartles have no remedy. As explained numerous times by this court in its past decisions and specifically in Nat’l Compressed Steel Corp., 272 Kan. at 1245 (citing In re Condemnation of Land for State Highway Purposes, 235 Kan. 676, Syl. ¶¶ 1, 2, 3):
“[Questions regarding the condemner’s power of eminent domain and the extent of restrictions on the condemner’s power cannot be presented in the eminent domain action because such proceeding does not provide a forum to litigate the right to exercise eminent domain or to determine the extent of that right. In an eminent domain proceeding, there is no right to litigate outside issues raised by the conderrmee. The right to exercise the power of eminent domain and to determine odier issues such as the necessity and the extent of the taking can only be litigated in a separate civil action, usually by suit for injunction.” (Emphasis added.)
While the Bardes recognize that a condemnation action “does not provide a forum in which to litigate die right to exercise eminent domain, or the extent of that right, or assert claims seeking to restrict or limit the rights appropriated,” they nevertheless argue that their constitutional claims do not fall into these categories. Yet, the heart of this appeal is the Bardes’ claim that “just compensation” not only includes fair market value, but also includes the additional 25 percent compensation in K.S.A. 2005 Supp. 12-1773(a). In order to prevail, the Bardes must establish that application of the EDPA denies them equal protection and due process of law. Their argument necessarily involves an attempt to litigate the extent of the right to exercise eminent domain, a subject beyond the jurisdiction of the district court. Their contention drat “their claims relate exclusively to the issue of just compensation” is without merit.
In support of their argument, the Bardes cite Deisher v. Kansas Dept. of Transportation, 264 Kan. 762, 770, 958 P.2d 656 (1998), where this court explained:
“The Fifth Amendment to tire United States Constitution prohibits the taking of private property for public use without just compensation. The Fifth Amendment prohibition is applicable to the states by way of the Fourteenth Amendment. The constitutional prohibition against private property being taken for public use without compensation is codified in K.S.A. 26-513 . . . .” (Emphasis added.)
The fact that the EDPA “codifies” the Fifth Amendment protection against taking property without just compensation does not mean that all constitutional claims relating to the Fifth Amendment are available at an eminent domain proceeding. This court has specifically listed two such constitutional challenges that may not be brought — those involving the right to exercise eminent domain and the extent of the government’s right. Nat’l Compressed Steel Corp., 272 Kan. at 1245.
More importantiy, this court has explicitly held that constitutional questions may not be raised in the context of eminent do main proceedings or appeals therefrom. In re Condemnation of Land for State Highway Purposes arose from an appeal to the district court from an eminent domain proceeding. Among other claims, the condemnees argued that the eminent domain hearing conducted by the appraisers denied them due process rights in violation of the United States Constitution. This court held that the constitutional question could not be raised in the context of the appeal from the original statutoiy proceeding, reasoning that “the constitutional issue should be raised in a separate judicial proceeding, not in the original special proceeding for condemnation.” (Emphasis added.) 235 Kan. at 683. The court continued:
“ ‘[Constitutional] objections are also open to an owner of land taken by eminent domain in a state in which condemnation proceedings are considered administrative and not judicial, and he is constitutionally entitled to a hearing thereon before a judicial tribunal; but he must raise such objections in certiorari or other appropriate proceedings instituted by himself rather than in defeiiding proceedings instituted by the condemning party.’ (Emphasis added.) 1 Nichols on Eminent Domain § 4.101[2] (rev. 3d ed. 1981).” 235 Kan. at 683.
The Bartles argue that because their appeal is “docketed as a new civil action and tried as any other civil action,” K.S.A. 2005 Supp. 26-508, the appeal itself is a “separate civil action” or a “separate judicial proceeding” as described by this court in Nat’l Compressed Steel Corp., 272 Kan. at 1245, and In re Condemnation of Land for State Highway Purposes, 235 Kan. at 683, respectively. The Bartles therefore contend that they may raise their constitutional issues relating to just compensation in their appeal, even if they could not raise these issues in the original eminent domain proceeding.
As previously pointed out above, this argument not only ignores the statutory language limiting the issues to be raised on appeal in EDPA proceedings, but it misconstrues both the opinions of this court and the nature of appeals. In re Condemnation of Land for State Highway Purposes involved an appeal from an eminent domain proceeding to the district court, yet this court still found that the parties could not raise constitutional issues in their appeal. See 235 Kan. at 678, 683. The court specifically held that “[t]he matter before us is not a separate action, but an appeal in the original condemnation proceeding which ... is a special statutory proceeding, not a civil action covered by the Code of Civil Procedure.” (Emphasis added.) 235 Kan. at 681.
The Bardes had an avenue to raise the issues they now seek to raise in this appeal — through a separate, independent civil action for an injunction or other relief. However, because they elected not to avail themselves of a remedy clearly identified in prior decisions of this court, the record on appeal to the district court as well as this court contains the only allegations of the Bardes. The wisdom of the legislature in limiting issues that may be raised in eminent domain action is readily apparent. Proceedings in eminent domain are not judicial and thus are not suited to provide a record on appeal to resolve the very issues the Bardes attempt to raise.
An appeal from the appraisers’ award in an eminent domain action is an appellate proceeding. The Bardes’ assertion that they may raise constitutional questions in their appeal from the eminent domain proceeding under K.S.A. 2005 Supp. 26-508 is without merit. They did not and could not raise their constitutional questions in the original eminent domain proceeding; they attempted to raise them for the first time on appeal. It is a fundamental rule of appellate procedure that issues not raised before the trial court cannot be raised on appeal. Board of Lincoln County Comm’rs v. Nielander, 275 Kan. 257, 268, 62 P.3d 247 (2003). Moreover, constitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review. U.S.D. No. 233 v. Kansas Ass’n of American Educators, 275 Kan. 313, 325, 64 P.3d 372 (2003).
Consistent with the plain language of the EDPA, with the nature of the proceeding we review, and with the past decisions of this court interpreting the EDPA, we conclude like the district court that there was no jurisdiction in this proceeding to address the claims of the Bardes.
For all the reasons set forth above, our holding in this case applies to the Bardes’ constitutional claims and to the claim for costs and attorney fees under 42 U.S.C. § 1988.
The Bardes rely on our decision in Allison v. Board of Johnson County Comm’rs, 241 Kan. 266, 737 P.2d 6 (1987), where this court upheld an award of attorney fees in a condemnation proceeding, to support their claim for attorney fees in this appeal. However, their reliance on Allison is misplaced. Allison was not an appeal from an eminent domain action, but rather involved an inverse condemnation action brought by the condemnees to enjoin the levying of several special assessments within Johnson County. Thus, because it was an independent judicial action initiated by landowners, the Allison case did not involve the procedural bars unique to an action under the EDPA.
In addition, the Bartles rely on Murray v. Kansas Dept. of Transportation, 239 Kan. 25, 29, 716 P.2d 540 (1986), where this court held that the plaintiffs in an inverse condemnation case did not successfully state a cause of action under 42 U.S.C. § 1983. When considering the unrelated issue whether the plaintiffs could collaterally attack the jury award from their original compensation proceeding pursuant to K.S.A. 26-508 via their current action for an injunction, the court stated that “[a]ny issues relative to the proper measure of damages to be utilized in determining the fair market value of the property taken lie in the appeal from the appraisers’ award.” 239 Kan. at 29. The Bartles assert that the court’s language that “any issues relative to the proper measure of damages” should be brought in an appeal under K.S.A. 2005 Supp. 26-508 encompasses an award of attorney fees under § 1988.
There is no support for this assertion in Murray, nor does logic support such a conclusion. The issue of attorney fees does not concern the “fair market value of the property taken.” A motion for attorney fees under 42 U.S.C. § 1988 does not pertain to “the compensation required by K.S.A. 26-513.” See K.S.A. 2005 Supp. 26-508. As stated above, the district court did not have jurisdiction in the Bartles’ appeal from the original eminent domain proceeding to consider their request for fees. As this court explained in the In re Condemnation of Land for State Highway Purposes decision:
“That the relief sought . . . might have been pursued in an independent action for an injunction is made clear by our opinions .... Such a course was not pursued; relief was sought in the original special proceeding. That being the case, do the landowners have a right to appeal the adverse ruling under the facts disclosed above? We think not.” 235 Kan. at 681.
Because the court in an appeal from an eminent domain proceeding under the EDPA does not have jurisdiction to consider constitutional issues or any issue other than the compensation due under K.S.A. 26-513, and because the Bardes raise only these extraneous issues in the current appeal to this court, their appeal is dismissed for lack of jurisdiction.
Appeal dismissed.
Allegrucci, J., not participating.
Lockett, J., Retired, assigned. | [
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|
The opinion of the court was delivered by
Johnson, J.:
Rafael L. Flores was 14 years old on October 5, 1996, when he fired six rounds into a group of people, lolling one person and wounding another. The State originally charged Flores as a juvenile with, inter alia, first-degree murder and attempted first-degree murder. After a hearing, the district court certified Flores to be tried as an adult. The State charged Flores as an adult with one count of premeditated first-degree murder, with an alternative count of felony murder; two counts of attempted first-degree murder; one count of criminal damage to property; and one count of criminal possession of a firearm by a juvenile. The State also filed a notice that it would seek a hard-40 sentence.
Pursuant to a plea agreement, the State amended the complaint, and Flores pled nolo contendere to one count of first-degree felony murder and one count of attempted voluntary manslaughter. In accordance with the plea agreement, the State did not seek a departure and recommended concurrent sentences. However, the district court, after accepting Flores’ plea and finding him guilty on both counts, imposed consecutive sentences of life imprisonment for the felony murder conviction and 34 months’ imprisonment for the attempted voluntary manslaughter conviction.
Flores filed a direct appeal, asserting that the sentencing court abused its discretion by imposing his sentences consecutively. This court dismissed the appeal because we do not have jurisdiction to review the propriety of consecutive sentencing. See State v. Flores, 268 Kan. 657, 660, 999 P.2d 919 (2000).
Some years later, on September 23, 2004, Flores filed a pro se motion to correct an illegal sentence, pursuant to K.S.A. 22-3504. He claimed that a provision of the Juvenile Offenders Code in effect at the time of the shooting, K.S.A. 38-1636(i) (Furse 1993), precluded the imposition of an adult sentence because the attempted voluntary manslaughter conviction was a lesser included offense of the originally charged crime of attempted first-degree murder.
The district court denied the motion, applying an incorrect version of K.S.A. 38-1636. Ruling on Flores’ motion to reconsider, the district court acknowledged its error. Nevertheless, the district court found that Flores’ adult certification was authorized by the original first-degree murder charge, for which Flores was convicted. Therefore, the entire case remained in adult court for sentencing purposes, because no legal mechanism existed for sentencing Flores in adult court for one count and in juvenile court for another count. Additionally, the district court opined that the 1-year limitation of K.S.A. 60-1507(f) applied to the motion to correct an illegal sentence, rendering it untimely. Further, the court found that Flores’ motion was a successive attack on his sentence and that our decision on direct appeal was res judicata as to all sentencing issues.
Flores appeals the denial of his motion to correct his sentence, which includes a term of life imprisonment and places the appeal before this court. See K.S.A. 22-3601(b)(1); State v. Edwards, 281 Kan. 1334, 1334-35, 135 P.3d 1251 (2006) (jurisdiction over an appeal from a motion to correct an illegal sentence is in the court that had jurisdiction to hear the original appeal).
STANDARD OF REVIEW
Whether a sentence is illegal within the meaning of K.S.A. 22-3504 is a question of law over which the appellate court’s review is unlimited. State v. Huff, 277 Kan. 195, 199, 83 P.3d 206 (2004). A sentence is illegal under 22-3504(1) when the sentence is imposed by a court without jurisdiction; when the sentence does not conform to the statutory provision, either in character or term of punishment authorized; or when the sentence is ambiguous with respect to the time and manner in which it is to be served. Edwards, 281 Kan. at 1336.
Further, to the extent that resolution of this matter involves an interpretation of K.S.A. 38-1636(i) (Furse 1993), our review is likewise unlimited. See State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006) (statutory interpretation is a question of law subject to unlimited review).
PROCEDURAL BARS
We commence by addressing the State’s arguments that Flores’ motion was procedurally barred. Although the district court denied the motion on its merits, it made the alternative findings that the motion to correct an illegal sentence was untimely filed and that the decision on direct appeal was res judicata as to the current sentencing issue. We disagree with both findings.
Timeliness
A motion to correct an illegal sentence is based upon K.S.A. 22-3504, which provides, in relevant part:
“(1) The court may correct an illegal sentence at any time. The defendant shall receive full credit for time spent in custody under the sentence prior to correction. The defendant shall have a right to a hearing, after reasonable notice to be fixed by the court, to be personally present and to have the assistance of counsel in any proceeding for the correction of an illegal sentence.”
In State v. Duke, 263 Kan. 193, 946 P.2d 1375 (1997), this court addressed whether a district court could summarily deny a motion to correct an illegal sentence, in light of the statutory language investing the defendant with the rights to have a hearing, to Be present at the hearing, and to have the assistance of counsel in any illegal sentence-correcting proceeding. Duke found statutory support in K.S.A. 22-4506 for the proposition that a district court should make a preliminary examination of all posttrial motions filed later than 10 days after trial to determine whether substantial questions of law or triable issues of fact are presented by the pleading. 263 Kan. at 195-96. The court then construed K.S.A. 22-3504(1) to require a hearing and appointment of counsel only where a further “proceeding” was necessitated by the existence of substantial questions of law or fact. 263 Kan. at 196. Otherwise, “[i]f no such issues are found to have been raised, the motion may be summarily dismissed.” 263 Kan. at 196.
Duke did not purport to negate the first sentence of K.S.A. 22-3504(1), which permits a court to correct an illegal sentence “at any time.” We perceive the district court may have been misled by Duke’s declaration that “[t]here is no indication that a motion to correct an illegal sentence was intended by the legislature to be treated differently from a K.S.A. 60-1507 attack upon a sentence.” 263 Kan. at 196. However, when viewed in context, that statement referred to the preliminaiy examination treatment of the motions. It did not suggest that the legislature intended the 1-year limitation provisions of K.S.A. 60-1507(f) to replace the plain language of K.S.A. 22-3504 with respect to when a motion to correct an illegal sentence may be filed, i.e., at any time.
In short, the district court erred in its alternative ruling that Flores’ motion to correct an illegal sentence was procedurally barred by the 1-year limitation of K.S.A. 60-1507(f). The State’s arguments in support of that ruling are unavailing.
Res Judicata/Waiver
As a second basis for a procedural bar, the district court found that Flores’ failure to raise the current sentencing challenge in his direct appeal justified denial on the basis of res judicata. In support of that ruling the State proffers the following quote:
“ ‘Under Kansas law, where an appeal is taken from the sentence imposed and/ or a conviction, the judgment of the reviewing court is res judicata as to all issues actually raised, and those issues that could have been presented, but were not presented, are deemed waived. Where a defendant’s claim has not been raised at trial or on direct appeal, such a default prevents the defendant from raising the claim in a second appeal or a collateral proceeding.’ (Emphasis added.) State v. Neer, 247 Kan. 137, 140-41, 795 P.2d 362 (1990).” Sanders v. State, 26 Kan. App. 2d 826, 830, 995 P.2d 397 (1999), rev. denied 269 Kan. 934 (2000).
The lower court’s use of the term “res judicata” was perhaps inaccurate in this case. Res judicata requires a prior final judgment on the merits. See Stanfield v. Osborne Industries, Inc., 263 Kan. 388, 397, 949 P.2d 602 (1997), cert. denied 525 U.S. 831 (1998). Flores’ direct appeal was dismissed for want of jurisdiction; there was no final judgment on the merits of Flores’ sentencing complaints. Nevertheless, Neer and its progeny preclude collateral proceeding consideration of issues that could have been, but were not, raised on direct appeal on the basis of waiver.
Our general rule that defendants must raise all available issues on direct appeal comports with the statutory framework of an appeal. See State v. Neer, 247 Kan. 137, Syl. ¶ 1, 795 P.2d 362 (2000) (right to appeal entirely statutory and not a right vested in the United States or Kansas Constitutions). K.S.A. 22-3608(c) requires a defendant to appeal within 10 days of the district court’s judgment. If an appeal is not taken within that time frame, the appellate court does not acquire jurisdiction to review the district court’s judgment. See Neer, 247 Kan. 137, Syl. ¶ 1. In like fashion, it makes sense to preclude a defendant from obtaining review of a particular issue when that review is not requested within the statutory 10-day period, notwithstanding the defendant’s timely appeal of other issues.
However, a defendant is not similarly constrained on the timing of a motion to correct an illegal sentence. “A defendant may file a motion to correct an illegal sentence at any time.” State v. Brown, 280 Kan. 898, 901, 127 P.3d 257 (2006) (citing K.S.A. 22-3504[1]). Therefore, applying Neer’s general waiver holding to appeals under K.S.A. 22-3504(1) actually contravenes the statutory framework for illegal sentences. Therefore, we find that Flores’ failure to include his illegal sentence claim in his dismissed direct appeal did not preclude his motion to correct an illegal sentence and does not deprive this court of jurisdiction of his appeal of the motion’s denial.
APPLICATION OF K.S.A. 38-1636(i) (Furse 1993)
Notwithstanding the initial confusion as to die version of 38-1636 which applied to Flores’ October 1996 crimes, the parties now correctly agree that we must construe K.S.A. 38-1636 (Furse 1993), which provides, in pertinent part:
“(a) At any time after commencement of proceedings under this code against a respondent who was: (1) 14 or 15 years of age at the time of the offense or offenses alleged in the complaint, if any such offense is or offenses are a class A or B felony, or, on or after July 1,1993, an off-grid felony, a nondrug felony crime ranked at severity level 1, 2 or 3 or a drug felony crime ranked at severity level 1 or 2, . . . the county or district attorney may file a motion requesting that the court authorize prosecution of the respondent as an adult under the applicable criminal statute.
“(f) The court may authorize prosecution as an adult upon completion of the hearing if the court finds that the respondent was: . . .
(2) 14 or 15 years of age at the time of the alleged commission of the offense, if the offense is an off-grid felony, a nondrug severity level 1, 2 or 3 felony or a drug level 1 or 2 felony, and that there is substantial evidence that the respondent should be prosecuted as an adult for the offense with which the respondent is charged; or
“(i) If the respondent is prosecuted as an adult under subsection (f)(1) or (f)(2) and convicted of a lesser included offense, the respondent shall be a juvenile offender and receive an authorized disposition pursuant to K.S.A. 38-1663, and amendments thereto.” (Emphasis added.)
Flores does not challenge the propriety of his initial certification to be prosecuted as an adult. Pursuant to 38-1636(a), a 14-year-old is amenable to certification when any offense in the juvenile complaint is of a severity level described in the statute, e.g., an off-grid felony. Flores was initially charged in the juvenile complaint with, inter alia, first-degree felony murder, which is an off-grid felony.
Likewise, Flores appears to accept that a certification on the first-degree murder charge effected a transfer of the entire case to adult court, including those counts of the complaint which, standing alone, would not have qualified for certification. See State v. Hooks, 251 Kan. 755, Syl. ¶ 2, 840 P.2d 483 (1992) (court’s authorization to prosecute a 14-or 15-year-old juvenile as an adult under 38-1636 includes all offenses charged, not just the charges necessary for the applicability of the statute). As Flores states in his brief, “K.S.A. 1993 Supp. 38-1636 is an all or nothing statute.” Thus, he is seeking to have his entire case returned to juvenile court for sentencing, based upon the provisions of subsection (i).
To reiterate, K.S.A. 38-1636(i) (Furse 1993) provides in relevant part that if a respondent is prosecuted as an adult under sub section (f)(2), as was Flores, but is “convicted of a lesser included offense, the respondent shall be a juvenile offender and receive an authorized disposition pursuant to K.S.A. 38-1663, and amendments thereto.” Flores focuses on the use in subsection (i) of the singular term “offense,” as compared to subsection (a), which refers to “offense or offenses” when discussing the severity level which qualifies for certification. He apparently believes that the use of the singular “offense” in subsection (i) manifests a legislative intent to require the State to obtain a conviction, as charged, on each and eveiy offense which qualified the case for certification. In contrast, the State suggests that if the legislature had intended Flores’ suggested result, it would have simply used the phrase “any lesser included offense.” We agree with the State.
Hooks briefly discussed the provisions of subsection (i) and opined that “it discourages any effort of an overzealous prosecutor to file elevated charges in order to prosecute a juvenile as an adult.” 251 Kan. at 762. Flores likewise asserts that the section is designed as a “check and balance” to “prevent the overzealousness of a prosecutor.” He does not explain, however, why that goal is not met when the State obtains a conviction for the principal charged crime on at least one of the counts which qualified the case for certification to adult court.
Here, the prosecutor sought adult certification because Flores allegedly committed a felony murder, along with other crimes. The felony murder charge, standing alone, would have been statutorily sufficient to support the adult certification. The State obtained a conviction for felony murder, vindicating the prosecutor’s charging decision. The legislative purpose for the existence of 38-1636(i) was satisfied. Cf. State v. Perez, 267 Kan. 543, 987 P.2d 1055 (1999) (where original juvenile charge was rape, sentence for lesser included offense of attempted rape was illegal under 38-1636[i]; attempted rape would not have supported adult certification).
Flores urges us to apply the rule that penal statutes are to be strictly construed in favor of the persons against whom the provisions will operate. See Hooks, 251 Kan. at 760. Ironically, if we were to accept Flores’ construction, we perceive it would actually work to the detriment of juveniles certified as adults. The accused would have to go to trial or plead as charged on all of the supporting felonies in the complaint; a favorable plea arrangement, such as was extended to Flores, would not be forthcoming.
Nevertheless, the fundamental rule of statutory construction requires us to give effect to the purpose and intent of the legislature, taking into consideration all of the provisions of 38-1636. Hooks, 251 Kan. at 760. Hooks performed that analysis to find that one qualifying felony will carry the entire juvenile case to adult court. We do likewise in finding that a conviction, as charged, on at least one of the qualifying felonies which supported the juvenile’s certification as an adult will keep the entire case in adult court. A juvenile certified as an adult reverts to juvenile offender status with a corresponding juvenile disposition only where he or she is not convicted of any of the principal crimes which supported the certification.
INEFFECTIVE ASSISTANCE OF COUNSEL
In a pro se supplemental brief, Flores purports to raise an issue of ineffective assistance of counsel. The claim fails for multiple reasons.
Flores did not allege ineffective assistance of counsel before the trial court. We do not consider such claims for the first time on appeal. See State v. Gleason, 277 Kan. 624, Syl. ¶ 5, 88 P.3d 218 (2004).
Flores’ brief mentions the claim in the issue statement but provides no supporting authority or argument. “When an appellant fails to brief an issue, the issue is waived or abandoned.” State v. Baker, 281 Kan. 997, 1015, 135 P.3d 1098 (2006).
Finally, we have found that Flores’ sentence was in compliance with K.S.A. 38-1636(i) (Furse 1993), i.e., was not illegal. Obviously, then, Flores cannot show that any error in his counsel’s performance resulted in prejudice. See State v. Moody, 35 Kan. App. 2d 547, Syl. ¶ 7, 132 P.3d 985 (2006) (test for reversible ineffective assistance of counsel requires a showing of prejudice).
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|
The opinion was delivered by
Luckert, J.:
This is an appeal from an order of the district court granting defendant Ernesto Flores’ motion to disqualify the law firm of Weary Davis, L.C., from serving as counsel for plaintiff Flores Rentals, L.L.C., or its owner Rosemaiy Flores. The issue we consider on appeal is whether the district court’s order of disqualification is an appealable order under the collateral order doctrine, a narrow exception to the general rule that only final orders may be appealed as a matter of right. We conclude that the collateral order doctrine does not allow an appeal of an order disqualifying counsel when the order has been entered because the attorney may be a witness in the litigation.
The question of potential disqualification of the Weary Davis law firm arose after an attorney in the firm, Steven R. Struebing, was identified as a potential witness. Ernesto raised the issue by filing a motion to disqualify tire Weary Davis law firm. In his written motion and in his arguments to the district court, Ernesto alleged that Struebing had previously represented Ernesto, Rosemary, and Flores Rentals in certain real estate transactions. Ernesto essentially asserted that he was in partnership with Rosemary and that any advice given by the Weary Davis law firm was in furtherance of their partnership. Ernesto asserts that determination of ownership of the partnership is a critical issue in this case in which Flores Rentals, through its attorneys at Weary Davis, argues Ernesto converted money or assets belonging to Flores Rentals for his personal use or to give as gifts to others. In a related suit filed in Bexar County, Texas, Ernesto has requested a declaratory judgment regarding his alleged one-half ownership in Flores Rentals.
It is uncontroverted that Ernesto had contact with the Weary Davis law firm during the process of inquiring into three different parcels of real estate which were potential sites for Flores Rentals to operate franchised locations of Aaron’s Rents and Sells, a national retail and rent-to-own furniture company. Working with Ernesto, Struebing provided legal services related to one tract of real estate which was ultimately determined not to be a suitable size for the Aaron’s store. In a second phase of events involving Struebing, Ernesto found property in Junction City, Kansas, which was owned by Storage Properties, Inc., a corporation of which Struebing was a principal shareholder and vice-president. Ultimately, in April 2002, Flores Rentals entered into a lease agreement with Storage Properties. The lease agreement and guarantee were drafted by Struebing. Per Storage Properties’ request, both Rosemary and Ernesto signed themselves as guarantors.
Then, in the spring of 2003, Flores Rentals began investigating a location for an additional Aaron’s franchise store. This led to Ernesto contacting Struebing for assistance yet again. Struebing negotiated a lease for property in Liberal, Kansas; the lease was drafted and completed. Again, Ernesto and Rosemary were both listed as guarantors on tire lease.
Around this same time period, Rosemary terminated Ernesto’s involvement with Flores Rentals. Flores Rentals filed the present action against Ernesto in Geary County District Court in April 2005, alleging that Ernesto was hired as manager of the Aaron’s store in Junction City and, during his time of employment, wrongly converted money or assets belonging to Flores Rentals.
During discovery, Ernesto’s Texas counsel wrote a letter stating that Struebing would need to be called as a witness in both the Texas and Kansas lawsuits and suggesting, therefore, that die Weary Davis law firm might have to withdraw from the Kansas case. Ernesto’s Kansas counsel became aware of the letter the day before Ernesto’s deposition and alerted Struebing. Struebing reviewed the applicable Kansas Rules of Professional Conduct (KRPC) and concluded that withdrawal was not required. Struebing prepared a letter to that effect and delivered it to Ernesto’s counsel the next morning.
This ultimately led to Ernesto’s filing a motion to disqualify Struebing’s law firm, Weary Davis, from serving as counsel for Flores Rentals in the Kansas case based upon Struebing being a key witness with regard to the pivotal issue of who owns Flores Rentals.
The district court agreed. The district court found it uncontroverted that the interests between defendant Ernesto and plaintiffs Flores Rentals and Rosemary are substantially adverse to one another. The district court further found that the ownership issue, to which Struebing would testify in Texas, could also have a substantial bearing on the results in the Kansas case. Based upon testimony at the hearing on the motion to disqualify and documentation pro vided in the pleadings, the district court determined there was a possibility that Ernesto and Rosemary were in a partnership.
The district court found an issue existed regarding whether the Weary Davis law firm represented Ernesto as a former client, noting that although the law firm denied providing any counsel to Ernesto, it is uncontroverted that Ernesto had numerous contacts with the law firm. The district court determined that, based on their contacts, Ernesto had a substantial relationship with the Weaiy Davis law firm and that each prong of the requirements necessary before an attorney must be disqualified under KRPC 1.9(a) (2006 Kan. Ct. R. Annot. 421) (Conflict of Interest: Former Client) were satisfied. Further, Ernesto neither provided a waiver to allow the law firm to represent the plaintiff in the Kansas lawsuit, nor did he consent to the law firm’s representation of the plaintiff. Therefore, the district court granted the motion to disqualify the Weary Davis law firm as counsel.
After granting Ernesto’s motion to disqualify counsel, the district court, at Flores Rentals’ request, made findings for an interlocutory appeal pursuant to K.S.A. 60-2102(c). In October 2005, in Court of Appeals Case No. 95,366, Flores Rentals applied under K.S.A. 60-2102(b) for permission to take an interlocutory appeal. The Court of Appeals, however, denied the motion.
In November 2005, Flores Rentals subsequently filed a docketing statement and notice of appeal with the Clerk of the Appellate Courts in the present case. This time, the Court of Appeals issued an order to show cause, directing the parties to show why the appeal should not be dismissed for lack of jurisdiction because, according to the Court of Appeals, “the order appealed from may be interlocutory in nature” and “it is unclear from the appellate file whether final judgment has been entered in this case.”
After receiving the parties’ responses to the show cause order, the Court of Appeals determined that Skahan v. Powell, 8 Kan. App. 2d 204, 653 P.2d 1192 (1982), disapproved on other grounds Reed v. Hess, 239 Kan. 46, 716 P.2d 555 (1986), which applied the “collateral order” doctrine to retain the appeal of an order disqualifying counsel, remains controlling law regardless of subsequent United States Supreme Court and Kansas Supreme Court cases calling into question the viability of Skahan. The Court of Appeals further stated that Parker v. Volkswagenwerk Aktiengesellschaft, 245 Kan. 580, Syl. ¶ 2, 781 P.2d 1099 (1989), suggests that an interlocutory appeal was the only immediate remedy for Flores Rentals.
However, the Court of Appeals declined to read Parker as having clearly eliminated the possibility of an appeal as a matter of right after a district court grants a motion to disqualify counsel. Instead, the Court of Appeals ordered the parties to address as the first issue on appeal whether Skahan should be reconsidered and whether Parker applies to prevent an appeal in this case. The case was subsequently transferred to this court by its own motion.
Analysis
Responding to the order of the Court of Appeals, Ernesto argues that Skakan is no longer valid and, because there has been no final judgment in this case, there is no appellate jurisdiction under the holding in Parker. Ernesto argues the Court of Appeals must accept an interlocutoiy appeal or there must be a final order before an order disqualifying counsel is appealable. Flores Rentals, however, argues that Skakan can still be applied and under that holding the order disqualifying counsel is immediately appealable as a collateral order.
Standard of Review
Whether jurisdiction exists is a question of law over which this court has unlimited review. Mid-Continent Specialists, Inc. v. Capital Homes, 279 Kan. 178, 185, 106 P.3d 483 (2005). Exercising this review, an appellate court has a duty to dismiss an appeal when tire record discloses a lack of jurisdiction. Max Rieke & Bros., Inc. v. Van Deurzen & Assocs., 34 Kan. App. 2d 340, 342-43, 118 P.3d 704 (2005).
Rasis for Appellate Jurisdiction
Appellate jurisdiction is defined by statute; the right to appeal is neither a vested nor constitutional right. The only reference in the Kansas Constitution to appellate jurisdiction iterates this principle, stating the Kansas Supreme Court shall have “such appellate jurisdiction as may be provided by law.” Kansas Constitution, Article 3, § 3. The Constitution is silent regarding the Court of Appeals, which is not a constitutional court but rather was statutorily created. In creating the Court of Appeals, the legislature limited its jurisdiction, defining the circumstances under which there is jurisdiction to hear an appeal. As a result, Kansas appellate courts may exercise jurisdiction only under circumstances allowed by statute; the appellate courts do not have discretionary power to entertain appeals from all district court orders. See Meddles v. Western Power Div. of Central Tel. & Utilities Corp., 219 Kan. 331, 333, 548 P. 2d 476 (1976); Henderson v. Hassur, 1 Kan. App. 2d 103, 105-06, 562 P.2d 108 (1977).
An analysis of appellate jurisdiction begins with K.S.A. 60-2101. K.S.A. 60-2101 provides for civil appeals directly to the Supreme Court only when a final decision of a district court includes a holding that a statute is unconstitutional. K.S.A. 60-2101(b). Otherwise, this court hears civil appeals upon review of decisions of the Court of Appeals or when the appeal is transferred as provided in K.S.A. 20-3016 through K.S.A. 20-3018. K.S.A. 60-2101 also provides for jurisdiction of the Court of Appeals, stating that court has jurisdiction to hear civil appeals from the district court “subject to the provisions of K.S.A. 60-2102, and amendments thereto.” K.S.A. 60-2101(a).
K.S.A. 60-2102 lists several bases for an appeal, two of which have been raised by the parties as being potentially applicable in this case. The first, K.S.A. 60-2102(c), was invoked by Flores Rentals when it sought to bring an interlocutory appeal under the provisions of that section and K.S.A. 60-2102(b). An interlocutory appeal under these provisions is not an appeal of right, but rather is subject to the Court of Appeals’ exercise of discretion. In this case, the Court of Appeals denied the interlocutory appeal; that decision is not before us for consideration as a basis of jurisdiction.
The second provision cited by the parties is K.S.A. 60-2102(a)(4), which allows an appeal as a matter of right from a “final decision.” The term “final decision” has been construed to mean “ ‘ “one which finally decides and disposes of the entire merits of the controversy, and reserves no further questions or directions for the future or further action of the court.” ’ ” State ex rel. Board of Healing Arts v. Beyrle, 262 Kan. 507, 941 P.2d 371 (1997) (quoting Gulf Ins. Co. v. Bovee, 217 Kan. 586, 587, 538 P.2d 724 [1975]). This court has noted the term “ ‘ “final decision” is really self-defining. Obviously it is an order which definitely terminates a right or liability involved in the action, or which grants or refuses a remedy as a terminal act in the case.’ ” Honeycutt v. City of Wichita, 251 Kan. 451, 457, 836 P.2d 1128 (1992) (quoting 2 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-2102, Comments [1979]).
Clearly, the district court’s order disqualifying Flores Rentals’ counsel, entered before trial, is not a final disposition of the case. Nevertheless, Flores Rentals contends that this court has jurisdiction under K.S.A. 60-2102(a) under an exception to the final decision requirement. The exception, the collateral order doctrine, was recognized in Skahan v. Powell, 8 Kan. App. 2d 204.
Skahan v. Powell
In Skahan, the district court disqualified an out-of-state attorney from appearing as counsel for the plaintiff in Kansas under Supreme Court Rule 116 (2006 Kan. Ct. R. Annot. 179.). In discussing the issue of whether appellate jurisdiction existed, the Court of Appeals observed that K.S.A. 60-2102(a)(4), which allows appeals from final decisions, is virtually identical to its federal counterpart, 28 U.S.C. § 1291 (1982). The Court of Appeals further noted that federal courts had relied on the collateral order doctrine, an exception to the federal act, to hold that an order disqualifying an attorney from representing a litigant is appealable. 8 Kan. App. 2d at 206 (citing Cohen v. Beneficial Loan Corp., 337 U.S. 541, 93 L. Ed. 1528, 69 S. Ct. 1221 [1949]). To be collaterally appealable, the order must
“(1) conclusively determine the disputed question, (2) resolve an important issue completely separate from the merits of the action, and (3) be effectively unreviewable on appeal from a final judgment.” 8 Kan. App. 2d at 206.
See also Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 57 L. Ed. 2d 351, 98 S. Ct. 2454 (1978) (delineating the three conditions).
Adopting and applying the collateral order doctrine, the Skahan court held that an order disqualifying a party’s attorney is a final decision from which an appeal may be perfected under K.S.A. 60-2102(a)(4). The Court of Appeals noted that the order in Skahan’s case conclusively determined the question of whether the plaintiff was to have counsel of his choice or be forced to retain another. In addition, the Skahan court concluded that the order resolved an important issue completely separate from the merits of the action and that the order would be effectively unreviewable if an appeal were delayed until a final judgment. The Skahan court elaborated:
“If plaintiff is denied counsel of his choice at this stage, a situation is created which cannot be completely rectified. If plaintiff should lose on the merits, he would have an almost insurmountable burden to show his loss was due to the change of counsel. If he should prevail on the merits, the disqualified attorney has no remedy for his loss of reputation and fees.” 8 Kan. App. 2d at 207.
In contrast to Skahan, the opposite scenario was addressed in Clemence v. Clemence, 8 Kan. App. 2d 377, 658 P.2d 368 (1983), where the defendant appealed the district court’s denial of the motion to disqualify the plaintiff s attorney. There, the Court of Appeals determined that denying a motion to disqualify counsel is interlocutoxy in nature because it may be effectively reviewed on appeal from any final judgment. Therefore, the Court of Appeals held the district court’s order was not a final order and was not appealable of right. 8 Kan. App. 2d at 377-78 (citing In re Estate of Richard, 4 Kan. App. 2d 26, 602 P.2d 122 [1979] [reversing judgment because attorney had violated Code of Professional Responsibility and prejudiced former client; district court erred in failing to remove
Richardson-Merrell, Inc. v. Koller
However, after Skahan and Clemence were decided, the United States Supreme Court in Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 86 L. Ed. 2d 340, 105 S. Ct. 2757 (1985), rejected application of tire collateral order doctrine under 28 U.S.C. § 1291 (1982) in the context of orders disquahfying counsel in civil cases.
The Court addressed the many policy reasons which could be advanced for allowing an interlocutory appeal of a motion disqualifying an attorney such as: delay, tire impact upon the attorney’s reputation, the potential use of the motion for tactical advantage, the party’s right to choose counsel, and the potential prejudice and increased cost. Many of these considerations are argued by Flores Rentals. The Court concluded that none of these reasons justified allowing an interlocutory appeal.
Regarding delay, the Richardson-Merrell Court observed that one purpose of the § 1291 “final judgment” rule is to avoid delay that inherendy accompanies time-consuming interlocutory appeals. When an appellate court accepts jurisdiction of an order disqualifying counsel, the practical effect involves a delay in the proceedings on the merits until the appeal is decided. 472 U.S. at 434. The Court further indicated that a disqualified attorney’s personal desire for vindication does not justify an interlocutory appeal; instead, as a matter of professional ethics, the decision to appeal should turn solely on the interests of the client. 472 U.S. at 434-35 (citing American Bar Association Model Rules of Professional Conduct 1.7[b], 2.1 [1985]). In addition, the Court rejected the notion that the use of disqualification motions to harass opposing counsel would constitute an independent justification for an immediate appeal of tire disqualification order, noting “[i]mplicit in § 1291 is Congress’ judgment that the district judge has primary responsibility to police prejudgment tactics of litigants.” 472 U.S. at 436. The Court went on to state: “[T]he possibility that a ruling may be erroneous and may impose additional litigation expense is not sufficient to set aside the finality requirement imposed by Congress.” 472 U.S. at 436.
After rejecting these policy arguments, the Richardson-Merrell Court addressed why an appeal of an order disqualifying counsel did not comport with the second and third prongs of the collateral order doctrine, the unreviewability and separability requirements. First, the Court noted that this conclusion had been reached in the criminal context in Flanagan v. United States, 465 U.S. 259, 79 L. Ed. 2d 288, 104 S. Ct. 1051 (1984), when the Court held that orders disqualifying counsel in criminal cases do not qualify as immediately appealable orders under the collateral order doctrine. Although the United States Court of Appeals for the District of Columbia Circuit in the Richardson-Merrell case had tried to distinguish Flanagan on various grounds, the Supreme Court found no basis for the distinctions. 472 U.S. at 438-39.
Additionally, the Court stated that “[ejven apart from Flanagan's analysis, we would conclude that orders disquahfying counsel in civil cases are not ‘completely separate from the merits of the action/ ” 472 U.S. at 439 (quoting Coopers & Lybrand, 437 U.S. at 468). Regarding the third prong of the collateral order doctrine, the Court concluded: “[T]he propriety of the trial court’s disqualification order can be reviewed as effectively on appeal of a final judgment as on an interlocutory appeal.” 472 U.S. at 438.
While recognizing that parties have the option of seeking an interlocutory appeal under 28 U.S.C. § 1292(b) (1982) (requisites for seeking interlocutory appeal), that particular set of facts was not applicable in Richardson-Merrell. See Firestone Tire & Rubber Co., 449 U.S. at 378 n.13 (if dissatisfied with district court’s decision and absolutely determined that party will suffer irreparable harm, party may seek to have question certified for interlocutory appeal under 28 U.S.C. § 1292[b]). The Richardson-Merrell Court ultimately held that the federal Court of Appeals had lacked jurisdiction to address the respondent’s appeal.
The Flanagan and Richardson-Merrell decisions suggest that representation-related orders are either fully reviewable on final appeal, which would violate the unreviewability prong of the collateral order test, or are subject to review for prejudicial error, thus requiring appellate review of the merits of the underlying dispute, which would violate the separability requirement of the collateral order test. See Devine v. Indian River County Sch. Bd., 121 F.3d 576, 580 (11th Cir. 1997).
Kansas Cases After Richardson-Merrell
In the years following Richardson-Merrell and Flanagan, Kansas appellate courts have addressed the issue of jurisdiction in cases where parties have appealed orders disqualifying counsel. In the criminal context, State v. Donahue, 25 Kan. App. 2d 480, 967 P.2d 335, rev. denied 266 Kan. 1111 (1998), applied the holding in Flanagan and held that an order disqualifying counsel from joint representation of several criminal defendants was not an appealable order. The Donahue court also based its conclusion on the absence of any express statutoiy authority for an interlocutory appeal by a criminal defendant. 25 Kan. App. 2d at 483.
Civil cases addressing the appropriate means of appealing disqualification orders, however, have not necessarily found jurisdiction lacldng. In Parker, 245 Kan. 580, the district court entered an order for disqualification of counsel, and counsel filed a petition in mandamus seeking to set aside the disqualification. This court acknowledged the conflict in cases concerning appeals of disqualification orders. First, the Parker court noted that Skahan held that mandamus is not a proper remedy. Next, this court cited Richardson-Merrell and pointed out that while the Richardson-Merrell Court held that orders disqualifying counsel in civil cases are not collateral orders subject to appeal as final judgments under 28 U.S.C. § 1291,
“ ‘[a]s we noted in Firestone, “a party may seek to have the question certified for interlocutory appellate review pursuant to 28 U.S.C. § 1292(b), . . . and, in the exceptional circumstances for which it was designed, a writ of mandamus from the court of appeals might be available.” ’ 472 U.S. at 435 (quoting Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 378-379 n.13, 66 L. Ed. 2d 571, 101 S. Ct. 669 [1981]).” 245 Kan. at 584-85.
The Parker court ultimately stated that “plaintiff should have requested an interlocutory appeal due to the district court’s certification of the matter,” but decided to treat the petition in mandamus as an interlocutory appeal. 245 Kan. at 585. This court went on to hold that the matter, which involved an interpretation of Kansas’ recently adopted Model Rules of Professional Conduct, was appropriate for interlocutory appeal. 245 Kan. at 586.
Viability of Skahan
Recognizing this line of cases and the decisions of the United States Supreme Court, Flores Rentals argues that Parker does not clearly adopt the holding of Richardson-Merrell, that Richardson-Merrell is distinguishable from the present case, and that Kansas need not follow United States Supreme Court precedent because this is an issue of state law.
In the attempt to distinguish Richardson-Merrell, Flores Rentals notes that the plaintiff in the federal case was not left completely without representation because it was merely out-of-state cocounsel that was disqualified. In contrast, Flores Rentals contends that the district court’s order should be reviewable here because, if the disqualification stands, Flores Rentals will “irretrievably lose the financial investment Plaintiff has in its only counsel of record in the pre-filing proceedings and the nine months of work on the case thereafter.” This argument is not persuasive.
The Richardson-Merrell Court acknowledged the fact that an order disqualifying counsel may impose significant hardship on litigants and that such hardship might tempt appellate courts to assert jurisdiction. The Court rejected the notion that this might justify transforming tire limited exception to the federal finality rule. 472 U.S. at 440.
Flores Rentals further argues that Richardson-Merrell is distinguishable because the United States Supreme Court did not require a showing of prejudice with respect to the disqualification order. Flores Rentals argues that Kansas appellate courts generally follow the harmless error rule and do not reverse judgments unless the appealing party can show that the district court error resulted in prejudice to the party. See Hagedorn v. Stormont-Vail Regional Med. Center, 238 Kan. 691, 701, 715 P.2d 2 (1986) (pertaining to admission of evidence). Bolstering its argument, Flores Rentals points to Skahan, where the Court of Appeals stated: “If plaintiff should lose on the merits, he would have an almost insurmountable burden to show his loss was due to the change of counsel.” 8 Kan. App. 2d at 207. However, this veiy line of thought was rejected in Richardson-Merrell. Although the Supreme Court stated it was not deciding the issue of whether prejudice is a prerequisite to the reversal of a judgment following the erroneous disqualification in a civil case, the Court noted that the difficulties in proving prejudice identified by the federal Court of Appeals went more to the issue of what was required to reverse a final judgment than whether the disqualification order should be subject to immediate appeal. 472 U.S. at 438. This point is illustrated by decisions in which courts have concluded that when appealing after a final judgment and alleging prejudice resulting from the disqualification of counsel, a modified test is applied. See In re Estate of Chuong, 623 A.2d 1154 (D.C. Ct. App. 1993) (disqualification of attorney not immediately appealable collateral order; party challenging order on appeal from final judgment need not demonstrate prejudice; rather, once order is shown to have been erroneous, party opposing reversal bears burden of demonstrating lack of prejudice); Harris v. David Harris, P.A., 310 Md. 310, 319-20, 529 A.2d 356 (1987) (“If it is established on appeal that the disqualification was in error, we shall presume that the disqualified attorney s former client has been prejudiced and the burden will be on the party advantaged by the erroneous disqualification to prove that the disqualification did not influence the outcome of tire litigation.”).
However, the Richardson-Merrell Court did not decide whether prejudice would be required or what test would be applied if prejudice must be shown because it focused more on the fact that the second prong of the collateral order test was not satisfied: “Even apart from Flanagan's analysis, we would conclude that orders disqualifying counsel in civil cases are not ‘completely separate from the merits of the action/ [Citation omitted.]” 472 U.S. at 439. After further discussion, the court stated:
“Orders disqualifying attorneys on the ground that they should testify at trial, for example, are inextricable from the merits because they involve an assessment of the likely course of the trial and the effect of the attorney’s testimony on the judgment. [Citation omitted]. Appellate review of orders disqualifying counsel for misconduct may be entwined with the merits of the litigation as well. If reversal hinges on whether the alleged misconduct is ‘likely to infect future proceedings,’ [citation omitted] courts of appeals will often have to review the nature and content of those proceedings to determine whether the standard is met. . . . In light of these factors, we conclude that orders disqualifying counsel in civil cases, as a class, are not sufficiently separable from die merits to qualify for interlocutory appeal.” Richardson-Merrell, 472 U.S. at 439.
Thus, Flores Rentals attempts to distinguish Richardson-Merrell are unavailing. The policy arguments raised by Flores Rentals were considered and rejected and the Court held that the second prong of the collateral order doctrine could not be met in the circumstances of this case — where the motion to disqualify arises because the attorney may be a witness because the merits of the motion are intertwined with the merits of the litigation.
Additionally, we note that other jurisdictions have followed the holding in Richardson-Merrell and have rejected the notion that disquahfication orders are immediately appealable as a matter of right. See, e.g., In re Sharpe, 98 B.R. 337 (N.D. Ill. 1989) (although jurisdiction may exist if district court granted leave to appeal interlocutory order under 28 U.S.C. § 158[a] [1982], disquahfication orders not appealable as of right under 28 U.S.C. § 1291); Howard v. Mail-Well Envelope Co., 164 F.R.D. 524, 528 (D. Colo. 1996) (order to disqualify counsel not subject to collateral order exception); Burger and Burger, Inc. v. Murren, 202 Conn. 660, 522 A.2d 812 (1987) (order granting disqualification of counsel could not be considered separate and distinct from main action, was not final judgment, and could not be immediately appealed); Acierno v. Hayward, 859 A.2d 617 (Del. 2004) (finding Richardson-Merrell persuasive; plaintiff had opportunity to invoke appellate court’s jurisdiction through the certification process of the state’s supreme court rule but failed to do so).
As Flores Rentals points out, several state courts have distinguished Richardson-Merrell. See Maddocks v. Ricker, 403 Mass. 592, 600-01, 531 N.E.2d 583 (1988) (permitting appeal of attorney disquahfication order if such order involves issues collateral to basic controversy and appeal from judgment dispositive of entire case would not be likely to protect client’s interests; if the issues are not collateral, interlocutory review can be obtained only on report by motion judge or by leave of appehate judge); Goldston v. American Motors Corp., 326 N.C. 723, 725-26, 392 S.E.2d 735 (1990) (generally no right of immediate appeal from interlocutory orders; state statutes set out exceptions under which interlocutory orders are immediately appealable); In re Myers, 107 Ohio App. 3d 489, 494, 669 N.E.2d 53 (1995) (noting that Ohio Supreme Court has not expressly adopted the logic of Richardson-Merrell). Still other jurisdictions have adopted a state test separate from the federal analysis. See Briggs v. McWeeny, 260 Conn. 296, 313-14, 796 A.2d 516 (2002) (under two-part test under state law, disqualification of counsel orders, otherwise interlocutory, may be appealable); DHR Intern., Inc. v. Winston and Strawn, 347 Ill. App. 3d 642, 646, 807 N.E.2d 1094 (2004) (noting that in 1996 the Illinois Supreme Court amended its state Supreme Court Rule 306 to allow for permissive appeals of orders granting motions to disqualify counsel); Richardson v. Griffiths, 251 Neb. 825, 560 N.W.2d 430 (1997) (district court’s order disqualifying defense counsel was not final order but was appealable because order involved issues collateral to underlying action and delaying appeal would not likely protect defendants’ interests in procuring counsel of their own choosing and in time and expense associated with hiring new counsel).
Consistent with these decisions, we recognize that this court is not bound to follow Richardson-Merrell. However, we find no basis to depart from the analysis of that decision. We note that the rationale of Skahan is founded upon the very federal doctrine and federal law that is discussed in Richardson-Merrell. Because the reasoning and holding in Skakan runs contrary to the holding in Richardson-Merrell, the foundation of Skakan no longer exists. Furthermore,.the collateral order doctrine has been recognized as a very narrow exception to the requirement of a final decision. There is no sound policy to liberalize the doctrine, especially when the opportunity exists for an interlocutory appeal if tire Court of Appeals is persuaded, in the exercise of its discretion, to allow the appeal. See, e.g., Chrispens v. Coastal Refining & Mktg., Inc., 257 Kan. 745, 749, 897 P.2d 104 (1995) (jurisdiction exists where a motion to disqualify counsel has been denied but the issue has been properly brought on interlocutory appeal pursuant to K.S.A. 60-2102[c]).
Although the parties’ arguments invite us to determine whether the collateral order doctrine is recognized in Kansas and, if so, what the prejudice requirement will be in cases such as this, we need not reach these questions because the facts of this case do not satisfy the collateral order doctrine even if it was recognized. As concluded in Richardson-Merrell, under the circumstances of this case where the motion for disqualification arises because an attorney may be a witness, the second prong of the test cannot be met: the merits are inextricably intertwined with the merits of the case. Thus, there is no appellate jurisdiction in this case under the collateral order doctrine.
We conclude that an order disquahfying counsel is not a final decision for purposes of an appeal pursuant to K.S.A. 60-2102(a)(4), which requires a final decision before an appellate court acquires jurisdiction. As this court stated in Parker, 245 Kan 580, the only appellate remedy available to a party appealing from an order disquahfying counsel, at least in the circumstances where the issue is intertwined with the merits of the case, is to take an interlocutory appeal or to appeal after a final decision.
Appeal dismissed for lack of jurisdiction.
Allegrucci, J., not participating.
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The opinion of the court was delivered by
ROSEN, J.:
This matter comes before us on Daniel Lee’s petition for review. The district court granted Lee’s motion to suppress evidence, and the State appealed. The Court of Appeals reversed the district court’s decision, concluding that the evidence was not seized in violation of Lee’s Fourth Amendment rights.
FACTS
The events leading to Lee’s arrest began at approximately 10:30 p.m. on July 30, 2005. Two Salina police officers were dispatched to a public park in response to a report that a suspicious man was walking through the park, looking at the ground, and hitting the ground with a stick. The report indicated only that the man’s behavior was odd but did not indicate that the man was threatening anyone with the stick or committing a crime.
As the uniformed officers approached the man, who was later identified as Daniel Lee, they observed him looking at the ground and poking it with a stick. One of the officers asked Lee if they could speak with him. Lee continued to look at the ground as if searching for something but agreed to speak with the officers. The officer then asked Lee for identification, and Lee handed the officer his drivers license. The officer then asked Lee why he was in the park. Lee responded that he was looking for a wallet that he had lost the previous week. Although skeptical that the wallet would still be in tire park, the officer searched the ground in the immediate area with his flashlight to help Lee look for the wallet.
Lee remained focused on his search for the missing wallet as the officers questioned him. Although Lee’s behavior was not threatening, one of the officers asked Lee if he had any weapons. Lee responded affirmatively and removed two legal knives from his pocket, placing them on a nearby picnic table. While Lee continued to search the ground for the wallet, one of the officers asked for permission to conduct a pat-down search for weapons. The officer did not ask Lee to empty his pockets. Without hesitating, Lee consented to the pat-down search for weapons.
During the pat-down, the officer discovered a bulge in Lee’s coin pocket. The officer reached into Lee’s coin pocket and removed a rolled-up baggie containing a ciystalline powder, which resembled methamphetamine. The officer then arrested Lee and placed him in handcuffs. The officers also took custody of Lee’s duffel bag and searched it. Inside a pocket of the duffel bag, the officers found what they suspected to be marijuana residue.
The State charged Lee with possession of methamphetamine, possession of marijuana, and possession of drug paraphernalia. Lee filed a motion to suppress the evidence. The district court conducted an evidentiary hearing, receiving testimony from one of the officers. Lee did not testify. The district court concluded that the officers violated the limitations of a Terry stop and coerced Lee’s consent to the search. Based on these conclusions, the district court granted Lee’s motion to suppress, stating:
“This is still America, and I don’t think the fact that somebody is allegedly acting strange or, quote, looked out of place in a park, waives that person’s rights as a citizen. The officers ascertained his identity and his business and that was all they had a right or responsibility to do at this point. The case law is clear that a generalized suspicion, or feeling of officer insecurity, is certainly not sufficient to trigger a request for a search.”
The State appealed the district court’s decision to the Court of Appeals. A majority of the Court of Appeals panel concluded that the encounter between Lee and the officers was consensual and Lee voluntarily consented to the search. State v. Lee, No. 95,348, unpublished opinion filed May 26,2006. The majority reversed the district court’s order suppressing the evidence and remanded the matter for further proceedings. A dissenting judge agreed with the district court’s analysis, concluding that the evidence should have been suppressed. We granted Lee’s petition for review.
ANALYSIS
The only issue before us is whether the evidence should be sup pressed. We review a motion to suppress evidence using a bifurcated standard. First, we review the factual underpinnings using a substantial competent evidence standard. Next, we consider the ultimate legal conclusion drawn from the facts as a question of law subject to unlimited review. State v. Parker, 282 Kan. 584, 588, 147 P.3d 115 (2006). When the facts are undisputed, the question of whether the evidence should have been suppressed is a question of law subject to de novo review. State v. Hill, 281 Kan. 136, 140, 130 P.3d 1 (2006).
Lee claims that the district court properly suppressed the evidence against him because it was seized in violation of his Fourth Amendment right against unreasonable searches and seizures. Lee raises two arguments. First, Lee argues that the district court properly concluded that the officers did not have reasonable suspicion to detain him. Second, Lee asserts that the officers exceeded the scope of his consent to a pat-down search for weapons.
Without disputing Lee’s version of the facts, the State argues that the initial encounter between Lee and the officers was consensual. The State asserts that although the encounter became an investigatory detention when the officers asked to search Lee for weapons, Lee voluntarily consented to the search.
Our analysis begins with the initial encounter between Lee and the officers. The district court concluded that the initial encounter was a Terry stop or an investigatory detention. The majority of the Court of Appeals, on the other hand, concluded that the initial encounter was consensual. Slip op. at 9.
To resolve the conflict in the lower courts’ analyses, we must start our analysis with the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights, which guarantee that each person shall be free from unreasonable searches and seizures. Based on the development of the law regarding these guarantees, we have classified encounters between police and citizens into four categories: voluntary encounters, investigatory detentions, public safety stops, and arrests. A voluntary or consensual encounter is the only type of encounter that does not implicate the protection of the Fourth Amendment. Parker, 282 Kan. at 588. For an investigatory detention, law enforcement officers must have reasonable suspicion to believe that an individual is committing, has committed, or is about to commit a crime. K.S.A. 22-2402(1). For a public safety stop, a law enforcement officer must be able to articulate specific facts that indicate a concern for public safety before approaching an individual to check on his or her welfare. 282 Kan. at 588. For an arrest, a law enforcement officer must have a warrant for the individual’s arrest, probable cause to believe there is a warrant for the individual’s arrest, or probable cause to believe that the individual is committing or has committed a crime. K.S.A. 2006 Supp. 22-2401.
To distinguish consensual encounters from investigatory detentions, we must determine whether a reasonable person would feel free to go about his or her business and disregard the law enforcement officer. Parker, 282 Kan. at 589. There are several objective factors that may be considered to determine whether there was a coercive show of authority such that the person would not feel free to disregard the officer. Those factors include the “presence of more than one officer, tire display of a weapon, physical contact by the officer, or use of a commanding tone of voice.’’ State v. Hayes, 35 Kan. App. 2d 616, 624-25, 133 P.3d 146 (2006) (holding that a valid traffic stop did not become a consensual encounter when the officer handed the driver a warning ticket because the officer advised the defendant that he was finished “as far as that [was] concerned” and the defendant was standing in front of two officers and two patrol cars with their emergency lights flashing); see also City of Topeka v. Grabauskas, 33 Kan. App. 2d 210, 219-20, 99 P.3d 1125 (2004) (holding that a reasonable person would not feel free to leave when an officer grabbed her and attempted to place her in handcuffs); cf. State v. Jennings, 33 Kan. App. 2d 244, 249-50, 99 P.3d 145 (2004), rev. denied 279 Kan. 1009 (2005) (holding that commanding individuals to remove their hands from their pockets so officers could see them did not convert a consensual encounter into an investigatoiy detention).
In State v. Reason, 263 Kan. 405, 412, 951 P.2d 538 (1997), this court concluded that the initial encounter was consensual when two officers approached the defendant in a public place and asked for identification. Reason and a companion were sleeping in Rea son s BMW automobile with the doors wide open in a public parking lot on a hot afternoon. Unable to see the occupants and concerned that the BMW had been stolen or abandoned, the two officers parked their patrol car behind the BMW to investigate. When the officers observed the defendant and his companion asleep in the car, they woke them and began asking questions to determine who they were and why they were sleeping in a public parking lot. Reason verbally identified himself and stated that he was the owner of the car but could not provide a driver s license or any registration documents for the car. The officer then checked for outstanding warrants on Reason and ran the registration for the BMW based on the vehicle identification number. The Reason court held that the initial encounter was consensual, stating that the “situation would naturally draw the police officers’ attention.” 263 Kan. at 412. However the Reason court further concluded that the encounter became an investigatory detention when the officer checked for outstanding warrants on Reason. 263 Kan. at 412.
The undisputed facts in this case are analogous to the facts of the initial encounter in Reason. Like the officers in Reason, who responded to an odd situation in a public place, the two officers in this case responded to a public park at 10:30 p.m. based on a report that an individual was behaving oddly. The individual was walking around the park, looking at the ground, and hitting the ground with a stick. The officers approached Lee and asked to speak with him. Lee agreed to speak with the officers, who then asked for Lee’s identification. After Lee gave the officers his name, one of the officers asked Lee what he was doing in the park. Lee responded that he was looking for a wallet that he had lost the previous week. Throughout the conversation, Lee continued looking at the ground for his lost wallet, giving minimal attention to the officers. Although Lee was preoccupied during the conversation, he was cooperative and did not attempt to leave the officers.
We believe that a reasonable person in Lee’s situation would have felt free to disregard the officers and go about his or her business. Even though there were two officers, there is no evidence that the officers displayed their weapons, physically restrained Lee, or spoke with a commanding tone of voice. Lee demonstrated his subjective belief that he was free to disregard the officers and go about his business when he refused to stop what he was doing and continued to look for his wallet while the officers were talking to him. These facts support the legal conclusion that Lee’s encounter with the officers was consensual. We agree with the majority opinion from the Court of Appeals, which properly concluded that the encounter between Lee and the officers was consensual.
The next step in our analysis is to determine whether the majority of the Court of Appeals properly concluded that Lee consented to the search. The State’s argument on appeal assumes that the encounter became an investigatory detention when the officers asked to conduct a pat-down search of Lee for weapons. However, we do not believe the law requires the State’s assumption.. In Parker, we concluded that the defendant’s initial encounter with a law enforcement officer was consensual. The encounter occurred when a patrol officer driving a marked patrol vehicle approached a garage at an apartment complex to investigate a report of “some guys hanging out in a garage.” 282 Kan. at 585. The officer parked his car behind the defendant’s car in the driveway, but, before he could exit his car, the defendant and a companion approached the officer. The officer asked Parker and his companion what was going on and whether they lived at the apartment complex. Because Parker had his hand concealed, the officer quickly exited from his patrol car and aslced Parker and his companion to lift their shirts and turn around, so he could determine if they were armed. The Parker court held that the initial encounter was consensual because Parker approached the officer, who made no affirmative actions to establish a show of authority. 282 Kan. at 593. The Parker court further concluded that the encounter did not escalate into an investigatory detention when the officer asked Parker to lift his shirt because Parker voluntarily complied with the officer’s request without requiring the officer to assert his authority. 282 Kan. at 593.
Like our conclusion in Parker, we believe the facts in this case support the conclusion that a reasonable person in Lee’s circumstance would have felt free to disregard the officer’s request, but Lee chose to voluntarily comply and allow the officers to conduct a pat-down search for weapons. Prior to asking for Lee’s consent to a pat-down search, one of the officers asked Lee if he had any weapons. Lee responded affirmatively, voluntarily removing two legal knives from his pocket and placing them on a nearby picnic table. One of the officers then asked for permission to conduct a pat-down search for weapons. Like Parker, who immediately raised his shirt in response to the officer s request, Lee consented to the pat-down search without hesitating or requiring the officer to assert his authority. Accordingly, we conclude that the encounter did not become an investigatory detention simply because the officer asked Lee for permission to conduct a pat-down search for weapons.
We disagree with the district court’s conclusion that the officers’ presence was coercive merely because the officers were wearing uniforms and carrying standard-issue weapons. In Reason, this court decided that the defendant had voluntarily consented to the search of his vehicle even though the initial voluntaiy encounter had become an investigatory detention when the officer checked for outstanding warrants. Reason, 263 Kan. at 415-16. Noting that there were two officers present, the Reason court stated that the officer did not use forceful language, did not brandish a weapon, and did not otherwise attempt to coerce Reason into consenting to the search. 263 Kan. at 415-16. Likewise, there is no evidence in the record before us to establish that the officers used forceful language, brandished any of their weapons, or otherwise attempted to coerce Lee into consenting to the pat-down search.
We agree with the conclusion reached by the majority of the panel for the Court of Appeals. Lee voluntarily consented to the pat-down search. However, unlike the majority of the Court of Appeals, we do not believe that the analysis ends at that point. Judge Greene, the dissenting judge on the Court of Appeals, stated that “even if there was a legal justification for the pat-down, the search itself exceeded permissible bounds for such a search. In conducting a pat-down search, items may not be removed from pockets of the suspect unless the officer has reasonable or probable cause to believe the object is associated with criminal activity.” Slip op. at 14-15. We agree with the dissenting judge’s analysis regarding the permissible bounds of the search.
This court adopted the plain feel exception to the requirement for a search warrant in State v. Wonders, 263 Kan. 582, 592, 952 P.2d 1351 (1998). The requirements for the plain feel exception are: “ ‘(1) [T]he initial intrusion which afforded authorities the plain view is lawful; (2) the discovery of the evidence is inadvertent; and (3) the incriminating character of the article is immediately apparent to searching authorities.’ ” Wonders, 263 Kan. at 592, 598 (quoting State v. Galloway, 232 Kan. 87, Syl. ¶ 2, 652 P.2d 673 [1982]). “Immediately apparent to searching authorities” has been interpreted to mean that the officer must have probable cause to believe that the object is evidence of a crime. Wonders, 263 Kan. at 597-98.
In this case, the initial intrusion was the pat-down search for weapons. The pat-down search for weapons was lawful because Lee voluntarily consented to the search. However, we note that Lee did not consent to a general search. The officer specifically asked for permission to conduct a pat-down search for weapons and did not ask Lee to empty his pockets. Based on this evidence, the first requirement for the application of the plain feel exception has been met — the initial intrusion was lawful.
Likewise, the second requirement for the application of the plain feel exception was met. The discoveiy of the methamphetamine was inadvertent because the officer did not have any reason to believe that Lee would have methamphetamine in his pocket. The officers did not question Lee about drugs, and Lee did not behave as though he were under the influence of drugs.
Under the third requirement for the plain feel exception, the officer must have probable cause to believe that the object is evidence of a crime. However, the officer testified that he did not know what the object was when he felt it. The district court found that the officer could not reasonably have believed that the small, rolled-up plastic bag was a weapon. The State does not contest this finding, and it is supported by the evidence. The officer testified that weapons typically feel hard, and the small object in Lee’s pocket just felt like a bulge. Because the officer did not have probable cause to believe that the small object in Lee’s coin pocket was a weapon or evidence of a crime, the plain feel exception does not apply.
Lee consented to a pat-down search for weapons. However, the officer exceeded the scope of the search when he removed the plastic baggie containing methamphetamine from Lee’s coin pocket. Because the plain feel exception does not apply, the methamphetamine in Lee’s pocket was illegally seized in violation of Lee’s Fourth Amendment rights. Likewise, the discovery of the marijuana residue in Lee’s duffel bag was also illegal because it was a fruit of the illegal search of Lee’s pocket. See State v. Morris, 276 Kan. 11, 25-26, 72 P.3d 570 (2003) (suppressing evidence that was discovered after the defendant was illegally seized).
Although we disagree with the district court’s analysis, we affirm the district court’s decision to suppress the evidence and reverse the majority decision by the Court of Appeals.
Johnson, J., not participating.
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|
Per Curiam,-.
This is an original uncontested proceeding in discipline filed by the Disciplinary Administrator against the respondent, Paul Arabia, an attorney admitted to the practice of law in Kansas in 1966. The respondent’s last registration address filed with tire Clerk of the Appellate Courts of Kansas is in Wichita, Kansas.
Prior to the filing of the formal complaint, but after being notified by the office of the Disciplinary Administrator that a formal complaint would be forthcoming, the respondent sent a letter to the Disciplinary Administrator’s office stating that: (1) he had retired; (2) he had no present forwarding address; and (3) he would be sailing for a period of time before taking up residence in Mexico.
A hearing was held before a panel of the Kansas Board for Discipline of Attorneys on June 20, 2006. The respondent failed to appear! In its final hearing report, the panel concluded respondent had violated Kansas Rules of Professional Conduct (KRPC) 3.3(d) (2006 Kan. Ct. R. Annot. 467) (duty of candor in ex parte proceeding); 8.4(a) (2006 Kan. Ct. R. Annot. 510) (knowingly assisting or inducing another to violate the rules of professional conduct); 8.4(b) (engaging in criminal conduct involving dishonesty); 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); 8.4(d) (engaging in conduct prejudicial to administration of justice); and 8.4(g) (engaging in conduct adversely reflecting on fitness to practice law). The hearing panel unanimously recommended that the respondent be disbarred from the practice of law in the state of Kansas. Respondent filed no exceptions and did not appear at the hearing before us.
The panel’s findings of fact, conclusions of law, and recommendation for discipline are reproduced in part as follows:
“FINDINGS OF FACT
“2. In 1998, the Respondent leased an office in his building [in Wichita] to Michael E. Lazzo. The Respondent and Mr. Lazzo were not partners nor were they associated in tire practice of law.
“3. In 1998, the Respondent became acquainted with Reynaldo Charles. Mr. Charles eventually worked as a legal assistant in the Respondent’s law office. Additionally, tire Respondent employed Mr. Charles to do household repairs on tire Respondent s homes in Wichita, Kansas, and in Mexico.
“4. In 1998, the Respondent drafted a change of name petition in behalf of Mr. Charles. However, tire petition was not filed in court.
“5. In 2000, officials in Adams County, Colorado, charged Mr. Charles with sexual assault on a child while in a position of trust, a class III felony, and sexual assault on a child, a class IV felony. The Respondent conferred with Mr. Charles’ public defender, Mandarin Bowers, regarding Mr. Charles’ case. Thereafter, the Respondent recommended to Mr. Charles that he accept tire offer of a plea agreement and enter a plea of guilty to attempted sexual assault on a child, a class V felony. [Footnote: In addition to tire 2000 criminal case, Mr. Charles had previously been convicted of a misdemeanor and four felonies — third degree assault, sexual assault of a child while in a position of trust, sexual offense against a child (fondling), incest with a minor, and sexual assault pattern of abuse.]
“6. On September 1, 2000, Mr. Charles entered a plea of guilty to attempted sexual assault on a child. Following his plea, Mr. Charles was free on bond. The Court scheduled Mr. Charles’ sentencing hearing for November 29, 2000.
“7. Following Mr. Charles’ plea hearing, on October 16, 2000, the Respondent made an affidavit.”
The affidavit is lengthy and its full inclusion herein is unnecessary. Apparently, the prnpose of the affidavit was to support a claim by Charles that he should be allowed to withdraw his guilty plea. The affidavit states that Charles had authorized the respondent to discuss his Colorado case and a possible no contest plea with Bowers. The affidavit then goes into great detail concerning an August 28, 2000, telephone conversation respondent had with Bowers. Inter alia, Bowers stated that the case against Charles was strong and that the charge exposed him to a lengthy prison sentence wherein the reduced plea bargained-for charge, attempted sexual assault of a child, greatly shortened his possible prison time. Respondent states Bowers did not tell him about the reporting requirements which might preclude a return to Kansas and restrictions in Charles' living conditions, including not being able to be around children. A great many more details were discussed in the same conversation. Respondent ends up swearing that if he had known all of these things, he would not have recommended that Charles plead guilty. It is very clear from the affidavit that respondent was extremely familiar with the charge against Charles and all ramifications of his plea on August 28, 2000, and on October 16, 2000. As the panel noted: “Pursuant to the affidavit, the Respondent was aware of Mr. Charles' plea and the requirements and consequences of the conviction.” The panel’s findings continue:
“8. Prior to the sentencing hearing, Mr. Charles left the state of Colorado and returned to Wichita, Kansas, and to the employment of the Respondent. Mr. Charles failed to appear at the sentencing hearing and the Court issued a warrant for Mr. Charles’ arrest. Mr. Charles remained a fugitive for an extended period of time.
“9. In April, 2001, the Respondent prepared and Mr. Charles signed a statement that the pending criminal matters in Colorado had been resolved to Mr. Charles’ satisfaction.
“10. In May, 2002, the Respondent prepared a second petition for change of name for Mr. Charles. Rather than list his name as attorney of record, the Respondent prepared the documents for Mr. Lazzo’s signature. The petition provided that Mr. Charles’ name would be changed to Jose Javier Soto. Mr. Charles executed an affidavit in support of the petition. The Respondent provided the prepared documents to Mr. Lazzo and asked that he complete die filing. The Respondent explained to Mr. Lazzo that Mr. Charles wanted to adopt his grandmother’s name.
“11. At the time that the Respondent asked Mr. Lazzo to complete the filing of the change name, Mr. Lazzo knew that Mr. Charles had previously been facing criminal charges involving allegations of child sexual abuse. Mr. Lazzo did not verify that Mr. Charles’ criminal case had been resolved. Mr. Lazzo assumed that Mr. Charles’ criminal case had been resolved because Mr. Charles had returned to Kansas.
“12. On May 28, 2002, Mr. Lazzo filed the name change case in behalf of Mr. Charles, in the Sedgwick County District Court, case number 02C-1839. [Footnote: At the time Mr. Lazzo filed the name change case, the Adams County, Colorado, warrant for Mr. Charles’ arrest remained pending.] The petition and the affidavit filed to change Mr. Charles’ name included the following statement: ‘drat the change of name requested, when granted by the court, will not hinder, delay, or defraud Petitioner’s creditors or defeat other legal obligations.’ The pleadings filed to change Mr. Charles’ name did not include any reference to the outstanding warrant or criminal case.
“13. On July 3, 2002, Mr. Lazzo personally provided the Honorable Richard T. Ballinger of the Sedgwick County District Court, a journal entry relating to Mr. Charles’ name change case. At the time he provided the journal entry to Judge Ballinger, Mr. Lazzo did not inform the Court of Mr. Charles’ criminal case in Colorado. In relying on the representations contained in the petition, affidavit, and journal entry, the Court granted Mr. Charles’ petition and changed his name to Jose Javier Soto.
“14. Mr. Lazzo did not conduct any investigation into the facts included in the petition. He never discussed the matter with his client, Mr. Charles, nor did he discuss the contents of the petition, affidavit, or journal entry with Mr. Charles or the Respondent. Mr. Lazzo had no contact with Mr. Charles regarding tire name change.
“15. Brent Bowler became acquainted with Mr. Charles, a.k.a. Mr. Soto, and tlie Respondent.
“16. On January 27, 2004, Mr. Bowler became unconscious while in the company of Mr. Charles, a.k.a. Mr. Soto, and with Christopher Cross, at 2135 South Ida, Wichita, Kansas. Rather than immediately calling for medical assistance, Mr. Charles, a.k.a. Mr. Soto, and Mr. Cross attempted to revive Mr. Bowler by putting him into the shower. When Mr. Bowler did not respond to the attempts to revive him, Mr. Charles, a.k.a. Mr. Soto, and Mr. Cross telephoned the Respondent twice and then took Mr. Bowler to the St. Joseph Hospital in Wichita, Kansas. Mr. Charles, a.k.a. Mr. Soto, identified himself to hospital officials as Mr. Soto.
“17. Mr. Bowler was immediately taken to the intensive care unit. Mr. Bowler suffered from a brain bleed. Because trauma is one cause of a brain bleed, tire police were called. Detective Timothy Relph of the Wichita Police Department was assigned to investigate Mr. Bowler’s injury. Because it had been reported that Mr. Bowler had become unconscious at the address on South Ida, Detective Relph wanted to go to that address and process the scene. Detective Relph asked Mr. Soto if they could go process the scene at South Ida. Mr. Soto denied Detective Relph access to the residence because he did not own the residence. Mr. Soto referred Detective Relph to the Respondent.
“18. Detective Relph contacted the Respondent. The Respondent also denied Detective Relph access to the residence. The Respondent reasoned that because he did not own the residence, and because he could not contact the owner of the property, he could not give consent to search the residence.
“19. On January 30, 2004, Mr. Bowler died.
“20. Carol Bowler, Mr. Bowler’s mother, contacted Detective Relph regarding her son’s death. Mrs. Bowler informed Detective Relph that Mr. Bowler had contact through the years with a man she believed had molested him. The man’s name was Reynaldo Charles. Mrs. Bowler provided Detective Relph with a copy of a restraining order that she obtained in 2001 against Mr. Charles. When De tective Relph reviewed the order, he noted that Mr. Charles had the same date of birth as Mr. Soto.
“21. Detective Relph discovered that Mr. Charles had three outstanding arrest warrants out of Colorado. Detective Relph obtained a photograph of Mr. Charles from law enforcement officials in Colorado.
“22. During the course of his investigation, Detective Relph interviewed the Respondent. While interviewing him, Detective Relph showed the Respondent a photograph of Mr. Charles. The Respondent falsely told Detective Relph that he knew the man in the photograph only as Mr. Soto. When Detective Relph informed the Respondent that the photograph was of a man named Reynaldo Charles, a fugitive from Colorado, the Respondent seemed surprised. The Respondent did not inform Detective Relph that he knew the man in tire photo was Mr. Charles, who changed his name to Mr. Soto, nor did the Respondent inform Detective Relph that he assisted Mr. Charles in changing his name.
“23. The coroner concluded that Mr. Bowler died as a result of an overdose of Oxycodone.
“24. Eventually, in June or July, 2004, Mr. Charles, a.k.a. Mr. Soto, was arrested on the outstanding warrants from Colorado.
“25. After Mr. Charles’, a.k.a. Mr. Soto’s, apprehension, Michael J. Bueno, an investigator with the Adams County District Attorney’s office, interviewed the Respondent. During the course of the interview, the Respondent provided false information to Mr. Bueno. Specifically, Mr. Bueno asked the Respondent whether he provided Mr. Charles, a.k.a. Mr. Soto, with legal advice regarding the 2000 criminal case in Adams County, Colorado. The Respondent told Mr. Bueno that he did not provide Mr. Charles, a.k.a. Mr. Soto, with legal advice. However, according to the Respondent’s affidavit, quoted at ¶ 7 above, the Respondent provided Mr. Charles, a.k.a. Mr. Soto, with legal advice regarding the 2000 criminal case in Adams County, Colorado.
“26. On January 26, 2005, Catherine Mabrey, Mr. Charles’ ex-wife, filed a complaint with the Disciplinary Administrator’s office. David Rapp, Chairman of the Wichita Ethics and Grievance Committee assigned John Seeber to conduct an investigation.
“27. On May 31,2005, the Respondent forwarded a response to Ms. Mabrey’s complaint to the Disciplinary Administrator’s office. In his response tire Respondent included the following false statements:
‘Ms. Mabrey seems to be alleging that the name change allowed Mr. Soto to remain at large and avoid prosecution or some other legal obligation as a result of a warrant which issued out of the State of Colorado. I know of rro facts which support that conclusion.
‘So far as was known to me, at the time of the initiation of the name change proceeding, Reynaldo Charles had not been charged with or convicted of any felony.
‘So far as is known to me, at the time the name change proceedings were initiated, he had not been charged with or convicted of any felony, and, of course, had we had any information from anyone that he was attempting [to] elude legal authorities (if he was), we would not have assisted him at all.
‘So far as either of us knew, the issues which Mr. Charles had been facing in Colorado in December of 2001 had been resolved. Neither Mr. Lazzo nor I were directly or indirectly involved in those matters at that time.’
“28. During the course of his investigation, Mr. Seeber took a sworn statement from the Respondent. During the sworn statement, the Respondent’s testimony conflicted with the sworn statement contained in his affidavit made on October 16,2000. The following excerpts are from the Respondent’s sworn statement.
‘Q. [By Mr. Seeber] Well, in the name change petition when you had Mr. Lazzo taire that up to file it, to your knowledge, had Mr. Charles been charged with a felony as of that time?
‘A. [By the Respondent] I knew that in the year 2000, someone had told me that he was charged with a crime in Colorado. I did not know whether the crime was a misdemeanor or a felony.
‘Q. So you had no information that would indicate to you that there would be any restraint of any land or limits on his traveling anywhere he wanted anytime he wanted to?
‘A. I had no information.’
“CONCLUSIONS OF LAW
“1. Kan. Sup. Ct. R. 215 governs service of process in disciplinary proceedings. That rule provides, in pertinent part as follows:
‘(a) Service upon the respondent of the formal complaint in any disciplinary proceeding shall be made by die Disciplinary Administrator, either by personal service or by certified mail to the address shown on the attorney’s most recent registration, or at his or her last known office address.
‘(c) Service by mailing under subsection (a) or (b) shall be deemed complete upon mailing whedier or not the same is actually received.’
In this case, the Disciplinary Administrator complied witíi Kan. Sup. Ct. R. 215(a) by sending a copy of the Formal Complaint and the Notice of Hearing, via certified United States mail, postage prepaid, to the address shown on the Respondent’s most recent registration. John Stark, the Respondent’s legal assistant, signed the return receipt. The Respondent reported to the Disciplinary Administrator diat he would not attend the hearing because he would be sailing. The Hearing Panel concludes that the Respondent was afforded the notice that the Kansas Supreme Court Rules require.
“2. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 3.3(d) and KRPC 8.4(d), as detailed below.
“3. KRPC 3.3(d) provides:
‘In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.’
In this case, the Respondent drafted the pleadings to change Mr. Charles’ name. In doing so, he failed to inform the Court of all material facts known to him— specifically information regarding the outstanding fugitive warrant from Colorado — which would have enabled the Court to malee an informed decision regarding Mr. Charles’ name change. Based upon the Respondent’s failure to inform the Court of material information, the Hearing Panel concludes that tire Respondent violated KRPC 3.3(d).
“4. KRPC 8.4(a) prohibits attorneys from ‘[v]iolat[ing] or attempt[ing] to violate the rules of professional conduct, knowingly assist[ing] or induc[ing] another to do so, or do so through the acts of another.’ The Respondent violated KRPC 8.4(a) when he directed Mr. Lazzo to file the petition to change Mr. Charles’ name when it did not include all material information. Therefore, the Hearing Panel concludes that the Respondent violated KRPC 8.4(a).
“5. ‘It is professional misconduct for a lawyer to . . . commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.’ KRPC 8.4(b). In this case, the Respondent committed a criminal act when he provided false information to Detective Relph regarding his knowledge of Mr. Charles, a.k.a Mr. Soto. Accordingly, the Hearing Panel concludes that the Respondent committed a criminal act and that criminal act reflects directly on the Respondent’s honesty and trustworthiness, in violation of KRPC 8.4(b).
“6. KRPC 8.4(c) prohibits attorneys from engaging in conduct that involves dishonesty. Specifically, ‘[i]t is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.’ KRPC 8.4(c). The Respondent engaged in conduct that involved dishonesty when he drafted the pleadings to change Mr. Charles’ name and omitted material information regarding Mr. Charles’ background. Additionally, the Respondent engaged in conduct that involved dishonesty when he provided false information to Detective Relph and Mr. Bueno. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(c).
“7. ‘It is [also] professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.’ KRPC 8.4(d). In this case, the Respondent engaged in ‘conduct that is prejudicial to the administration of justice’ when he drafted the pleadings in Mr. Charles’ name change case. Mr. Charles should never have had his name changed. Because the Respondent failed to pro vide adequate information to Mr. Lazzo and the Court, the Court changed Mr. Charles’ name to Mr. Soto. Mr. Charles’ name change impacted directly on the administration of justice. Officials from Colorado were unable to locate Mr. Charles, at least in part, because tire Respondent assisted Mr. Charles in changing his name. As such, the hearing Panel concludes that the Respondent violated KRPC 8.4(d).
“8. Finally, ‘[i]t is professional misconduct for a lawyer to . , . engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law.’ KRPC 8.4(g). The Respondent’s involvement in Mr. Charles’ name change, the Respondent’s failure to provide honest and complete information in tire investigation of Mr. Bowler’s death, and the Respondent’s failure to provide honest and complete information during Mr. Bueno’s investigation, adversely reflects on the Respondent’s fitness to practice law. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(g).
“AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS
“In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, tire factors to be considered are the'duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duty to the legal system to refrain from abusing legal process and the Respondent violated his duty to the legal profession to maintain his personal integrity.
“Mental State. The Respondent knowingly and intentionally violated his duties. Further, the Respondent failed to cooperate in the disciplinary process and refused to attend the disciplinary healing. The Respondent’s deposition testimony, taken by the disciplinary investigator, raises questions concerning the Respondent’s veracity.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injury to the administration of justice — assisting a fugitive in remaining at large for a period of nearly 4 years.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“Prior Disciplinary Offenses. The Respondent has been previously disciplined on two occasions. On March 9, 2001, the Respondent was censured by the Kansas Supreme Court for having violated KRPC 1.5. Additionally, on March 13, 2001, the Disciplinary Administrator informally admonished the Respondent for having violated KRPC 1.5, KRPC 1.16(d), KRPC 2.1, and KRPC 8.4. As such, the Hearing Panel concludes that the Respondent has prior disciplinary offenses.
“Dishonest or Selfish Motive. The Respondent’s misconduct was motivated by dishonesty and selfishness. The Respondent misled the Court in Mr. Charles’ name change case, the Respondent provided false information to Detective Relph, and the Respondent provided false information to Mr. Bueno. Accordingly, the Hearing Panel concludes that the Respondent’s misconduct was motivated by dishonesty and selfishness.
“Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1966. At the time the Respondent engaged in misconduct, the Respondent had been practicing law for over 35 years. Therefore, the Hearing Panel concludes that the Respondent had substantial experience in the practice of law at the time he engaged in the misconduct.
“Illegal Conduct. The Respondent engaged in illegal conduct by obstructing Detective Relph’s investigation into Mr. Bowler’s death.
“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 no mitigating circumstances present.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘Disbarment is generally appropriate when:
(a) a lawyer engages in serious criminal conduct a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or the sale, distribution or importation of controlled substances; or the intentional killing of another; or an attempt to conspiracy or solicitation of another to commit any of these offenses; or
(b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice.’ Standard 5.11
‘Disbarment is generally appropriate when a lawyer, with the intent to deceive the court, makes a false statement, submits a false document, or improperly withholds material information, and causes a serious or potentially serious injury to a party, or causes a significant or potentially significant adverse effect on the legal proceeding.’ Standard 6.11
“RECOMMENDATION
“The Deputy Disciplinary Administrator recommended that the Respondent be disbarred.
“Based upon the findings of fact, conclusions of law, the Standards listed above, and the Deputy Disciplinary Administrator’s recommendation, the Hearing Panel unanimously recommends that the Respondent be disbarred from the practice of law in the state of Kansas.
“Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinary Administrator.”
DISCUSSION
In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and tire arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by substantial, clear, convincing, and satisfactory evidence. In re Lober, 276 Kan. 633, 636, 78 P.3d 442 (2003); see also Supreme Court Rule 211(f) (2006 Kan. Ct. R. Annot. 284) (misconduct to be established by clear and convincing evidence).
The respondent filed a statement with the Clerk of the Appellate Courts stating he does not take exception to the panel’s final report. Therefore, the hearing panel’s final report is deemed admitted. Supreme Court Rule 212(c) (2006 Kan. Ct. R. Annot. 295).
We conclude the panel’s findings of fact are supported by clear and convincing evidence and support the panel’s conclusions of law, and we adopt the panel’s findings and conclusions.
With respect to tire discipline to be imposed, the panel’s recommendation that the respondent be disbarred from the practice of law in the state of Kansas is advisory only and shall not prevent the court from imposing a' different discipline. Rule 212(f) (2006 Kan. Ct. R. Annot. 295).
It should be noted the involvement of attorney Michael E. Lazzo in tire Reynaldo Charles’ name change proceeding was the subject of its own disciplinary proceeding. We accepted the panel’s recommended discipline therein of published censure. In re Lazzo, 283 Kan. 167, 150 P.3d 887 (2007).
Lazzo’s involvement was far less egregious and, as the panel found, was the result of negligence rather than intentional wrongdoing.
We have no hesitancy in agreeing with tire panel and the Deputy Disciplinary Administrator that disbarment is die appropriate discipline to be imposed upon Paul Arabia. His multiple violations of the Kansas Rules of Professional Conduct and established lack of integrity constitute a disgrace to the legal profession.
It Is Therefore Ordered that the respondent, Paul Arabia, be and he is hereby disbarred from the practice of law in the state of Kansas in accordance with Supreme Court Rule 203(a)(1) (2006 Kan. Ct. R. Annot. 243) for his violations of the Kansas Rules of Professional Conduct.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Paul Arabia from the roll of attorneys licensed to practice law in Kansas.
It Is Further Ordered that Paul Arabia comply with Supreme Court Rule 218 (2006 Kan. Ct. R. Annot. 314).
It Is Further Ordered that this order be published in the official Kansas Reports and that the costs of this action be assessed to respondent. | [
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The opinion of the court was delivered by
Fatzer, C. J.:
The defendant, Theodore A. Nirschl, has appealed from his conviction by a jury of first degree burglary and possession of burglary tools. His motion for a new trial was denied after an evidentiary hearing, and his motion for an in camera inspection of the state’s file, filed after his conviction, was also denied.
At no time, before or during the trial, did the defendant deny committing the burglary or possessing the burglary tools — in fact, he admitted the offenses. His sole defense appears to be that at the time of the commission of the offenses he was entrapped on purpose by Sheriff Vern Miller, whom, he claimed, had previously made contact with his accomplice who then set up the burglary with the sheriff’s knowledge and for the purpose of inducing him to commit the offenses so that he could be prosecuted.
Highly summarized, the evidence showed the following: On January 6, 1970, Sheriff Miller received information that the home of Eugene P. Wetzel, in Wichita, would be burglarized during the night. The sheriff called one Canfield to request that he contact Wetzel and attempt to secure his (Wetzel’s) cooperation in apprehending the burglars. Canfield arranged for Wetzel to meet the sheriff at an eastside shopping center at 8:00 p. m. Prior to his meeting Wetzel, the sheriff contacted Detective Werbin and asked him to get some deputies together to surround the Wetzel home later that night, and to advise the Wichita Police Department of what was to occur.
The sheriff rode in Wetzel’s car to his home located on the east side of Wichita. Wetzel and his wife went to Arkansas City for the evening pursuant to plans made much earlier, leaving the sheriff locked inside the house. Before Wetzel left, the sheriff made an examination of the house and then crawled upon a ledge, approximately eight feet high, between rooms in the house. About two hours later, the sheriff heard noises and saw two men enter the house through the south glass doors in the back o£ the house. He recognized the defendant who was holding a bar and a screwdriver in his hand. After a short conversation, the two men started moving around. The sheriff could hear doors move, a mumbled conversation, and movement in the other part of the house.
The sheriff gave a prearranged signal over a walkie-talkie he had in his possession, and heard both a loud knock on the front door and the doorbell ring. Hearing the knock, the defendant ran into the room where the sheriff was positioned, who, with gun in hand, jumped from the ledge and shouted, “[h]old it, Nirschl. You’re under arrest.” The defendant stopped, and replied, “[d]on’t shoot, you’ve got me.” The sheriff ordered Nirschl to proceed out the way he came in. Both men went out through the glass doors and into the backyard.
There were eleven to thirteen police officers surrounding the house, and upon hearing the sheriff and the defendant in the backyard, they started toward the rear. The sheriff, noting this fact, ran toward the front of the house and shouted, “[c]over off the front. There’s a man inside.” When he came to the front of the house, he observed the garage door was open and he also observed a man running down the street about three quarters of a block away. The sheriff fired several shots at the man, but the fleeing man, apparently unhurt, kept running. The police officers pursued the escaping burglar, but eventually lost him.
When Nirschl was escorted by sheriff’s deputies from the backyard, he commented, “[b]oy, they’ve got me cold.” Later, he was placed in a police car in the company of two officers, and he said, “[b]oy, they’ve got me cold. I might as well plead guilty.” Nirschl volunteered to plead guilty, and the officers advised him he would have to have an attorney. The defendant’s statements were spontaneous admissions.
While at the scene, the defendant was advised of his constitutional rights by a detective, in full compliance with Miranda, who asked Nirschl, “do you wish to talk to us now.” The defendant replied in the affirmative. When asked who had been with him, the defendant answered, “I won’t tell you.” Later, at the police station, Sheriff Miller also questioned the defendant as to the identity of the second man. Nirschl stated in reply that he was by himself, and smiled and shrugged his shoulders.
The appellant first contends that one Robert Brunch, acting as an agent of the state, enticed him into participating in a staged crime for the purpose of entrapment. To support his position, counsel sought to introduce the testimony of Richard Julius, Samuel Pruett, and Ruby Nirschl. The nature of that testimony was certain conversations each had with Brunch and other conversations between the defendant and Brunch which the witnesses overheard. The state objected to the evidence contending it was hearsay, and the district court sustained. It should here be noted, Brunch was not present in the courtroom, although a subpoena had been issued but never served.
The appellant contends the testimony was admissible hearsay evidence under the theory that the testimony came within the ambit of two statutory exceptions to the hearsay rule: K. S. A. 60-460 (i) (1) and (2), and K. S. A. 60-460 (/). K. S. A. 60-460 (i) creates an exception to the exclusion of hearsay evidence for vicarious admission. Subsection (1) of that statute declares that an out of court declaration is admissible, as against a party, if the statement concerns a matter within the scope of an agency or employment of the declarant for that party and was made before the termination of that relationship. The appellant contends an agency existed, and that the testimony was admissible. The point is not well taken. The appellant failed to establish the prerequisite premise for admission — that there be some extrinsic evidence in the record that an agency existed. The fact of agency cannot be proved by the hearsay evidence of the purported agent. (Cross v. Aubel, 154 Kan. 507, 119 P. 2d 490; Key v. Thomas Lyons Co., 109 Kan. 281, 198 Pac. 928; Gard, Kansas Code of Civil Procedure Annotated, § 60-460 (i), p. 476.) There is no extrinsic evidence in the record to support or even imply, the alleged agency relationship between the state and Brunch, hence we conclude the threshold requirement was not met. Both the law and the evidence support the district court’s ruling.
Under K. S. A. 60-460 (i) (2), statements of “co-conspirators” are admissible hearsay, provided such statements concern the conspiracy and were made during the existence of the conspiracy. The appellant urges that a conspiracy existed between the sheriff and Brunch for the pmpose of entrapping him, thus, it follows that statements made by Brunch are admissible against the co-conspirator, the state. Once again, the appellant assumes the existence of a relationship upon which the exception is premised. There must be some extrinsic evidence in the record that a conspiracy existed. We find no evidence in the record other than the hearsay itself to support the assertion of the existence of a conspiracy. (State v. Borserine, 184 Kan. 405, 411, 337 P. 2d 697; State v. Shaw, 195 Kan. 677, 680, 681, 408 P. 2d 650; State v. Adamson, 197 Kan. 486, 488-490, 419 P. 2d 860; State v. Trotter, 203 Kan. 31, 453 P. 2d 93; Gard, Kansas Code of Civil Procedure Annotated, § 60-460 [i], p. 478.)
In addition, the appellant suggests the testimony is admissible as an exception to the hearsay rule on the grounds the statements of the declarant were declarations against interest, pursuant to K. S. A. 60-460 (/). That section permits the admission of statements which were at the time of their assertion so far contrary to the declarant’s pecuniary, proprietary, penal or social interests that a reasonable man would believe the statements would not have been made unless the declarant believed them to be true. Evidence of the statements in question might have been declarations against the interest of Brunch; however, such statements would not be competent to bind Nirschl or the sheriff unless some conspiracy was shown. Such was not the case. (Thompson v. Norman, 198 Kan. 436, 424 P. 2d 593; State v. Parrish, 205 Kan. 178, 468 P. 2d 143; Cooper v. Bower, 78 Kan. 156, 96 Pac. 59.) The district court did not err in refusing to admit the testimony of Ruby Nirschl, Richard Julius, and Samuel Pruett.
The sheriff and other officers were at the scene of the crime on the basis of information supplied to law enforcement officers by an unnamed informant. Appellant sought to secure the identity of the informant but upon the state’s objection, the district court refused to permit disclosure. Appellant contends the disclosure was essential to guarantee his right to a fair trial.
The privilege to refuse to disclose the identity of an informer is within the district court’s discretion and will not be overturned -unless that discretion is abused. The district court can compel disclosure pursuant to K. S. A. 60-436 if the identity of the informer has already been disclosed by some other source, or if his identity is essential to assure a fair trial of the issues. The privilege to refuse disclosure is based upon sound public policy to encourage those who-have knowledge of crime to come forward and give information to law enforcement officers without fear of disclosure. Disclosure is not favored without just cause.
There is considerable merit in the state’s analogy of this case to that of State v. Grider, 206 Kan. 537, 479 P. 2d 818. While there is meager evidence to show the necessity of disclosure, we cannot say the district court abused its discretion in refusing to compel disclosure. (State v. Robinson, 203 Kan. 304, 454 P. 2d 527; Grider, supra.)
The appellant next contends the district court erred in refusing his post trial motion for in camera inspection of the state’s file. We are not aware of any provision in the Kansas Code of Criminal Procedure for post trial discovery. It is arguable, however, that disclosure and post trial discovery may be necessary on certain occasions to insure due process, thus we do not categorically rule out the propriety of such a motion. See Barbara, Noblesse Oblige— Duty of Prosecution to Disclose Evidence in Criminal Case, 10 Washburn L. J., 54. However, we do question the timeliness and reasonableness of such a request in this case. There is absolutely no competent evidence in the record to support the appellant’s claim of entrapment. Nowhere does he attempt to prove the state’s file contained information in support of the theory of entrapment. We do not consider speculation by counsel sufficient cause to compel an in camera inspection. It appears from the record and the appellant’s own brief that the thrust of the motion was an attempt to discover. We are not prepared to say that due process requires such a “fishing expedition.” The burden was upon the movant, and it was not met.
The appellant testified in his own behalf. He admitted he had been at the scene of the crime on the night in question; that he was apprehended by Sheriff Miller, and that Brunch was his accomplice. During cross-examination, the appellant was questioned about conversations he had with the sheriff and Detective Malone subsequent to his arrest. He testified he had been advised of his rights pursuant to the Miranda mandate, and in response to their questions, he requested an attorney and said he did not want to talk further. Counsel objected to the line of questioning as being without the scope of the direct examination. The objection was overruled. On rebuttal, the testimony of the sheriff and the detective covered two areas: First, that appellant had been advised of his rights, and second, that he refused to identify his accomplice. Counsel objected on the ground that it was improper rebuttal. That objection was overruled.
This court has uniformly held that cross-examination must be responsive to testimony given on direct examination, or material and relevant thereto; thus, resolution of such issues resides in the sound discretion of the district court, and will not be reversed unless that discretion is abused. (Humphries v. State Highway Commission, 201 Kan. 544, 442 P. 2d 475; State v. Roth, 200 Kan. 677, 438 P. 2d 58; State v. Reuter, 126 Kan. 565, 268 Pac. 845; State v. Patterson, 112 Kan. 165, 210 Pac. 654.)
Appellant’s counsel opened up the subject of who was with him at the scene of the crime; he also opened up the question of appellant’s arrest. It is reasonable to conclude the state should be permitted to inquire into the particulars of that arrest and whether the defendant had made other statements with respect to his accomplice. The questions asked on cross-examination were logically related to, were material and relevant to the veracity of the appellant’s direct examination, and were formulated to lay a foundation for rebuttal testimony as to appellant’s credibility as a witness. In State v. Jackson, 201 Kan. 795, 443 P. 2d 279, cert. den. 394 U. S. 908, 22 L. Ed. 2d 219, 89 S. Ct. 1019, this court said:
“When a defendant takes the stand as a witness, he takes his integrity and character with him and he cannot complain because he is subjected to the same inquiries and tests as other witnesses. The extent to which he may be cross-examined lies largely in the discretion of the trial court (State v. Wilson, 108 Kan. 433, 195 Pac. 618) subject to the limitations provided by K. S. A. 60-421. (See, also, State v. Stewart, 179 Kan. 445, 296 P. 2d 1071; Unruh v. Kansas Turnpike Authority, 181 Kan. 521, 313 P. 2d 286.)
“The appellant contends that whether or not he had an opportunity to tell his story before the trial was a collateral issue and should not have been used as the basis for rebuttal impeachment. We cannot agree. The appellant told a story which kept him away from the immediate scene of the crime. If the story was believed by the jury an acquittal would necessarily result.” (1. c. 797,798.)
With respect to the propriety of the rebuttal testimony, this court has held that evidence which could have been admitted in the case in chief but which was not, may be admitted in rebuttal to contradict some new fact or circumstance brought forth in the defendant’s evidence. That is the case here. The state could not attack the credibility of the defendant’s testimony until he had taken the stand. Once that issue was raised, it properly could be rebutted. (State v. McGlade, 165 Kan. 425, 196 P. 2d 173; State v. McCorvey, 199 Kan. 194, 428 P. 2d 762; State v. Bean, 181 Kan. 1044, 317 P. 2d 480.)
Other points have been raised and briefed by the appellant. They have been fully and carefully examined by the court. It would serve no useful purpose to lengthen this opinion by discussing them. It is sufficient to say the district court did not commit reversible error in any respect on such rulings, nor did it err in overruling the defendant’s motion for a new trial. It follows that the judgment and sentence of the district court must be and it is hereby affirmed.
It is so ordered. | [
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The opinion of the court was delivered by
Foth, C.:
The ultimate issue on this appeal is whether both drivers or only one should be liable for the injuries sustained by passengers in one of two cars involved in a head-on collision.
In the court below three cases were consolidated for trial and they come to this court as a single case. The plaintiffs were David and Michael Hill, minors, and their parents as heirs át law and next of kin of Theresa Hill, who died as a result of the collision. The defendants were Mrs. Louise Harmon, driver of the car in which the three Hill children were passengers, and William A. Wymer, driver of the other car. The defendants, who are the principal 'actors, will be referred ,to by name.
The collision occurred at about 3:15 p. m., on March Í5, 1967, at a point approximately 6.3 miles east of Manhattan, Kansas, on U. S. Highway No. 24, an east-west two lane road. Wymer was proceeding east when Mrs. Harmon, with the Hill children, came onto the highway from the north and turned west. Mrs. Harmon thought that after entering the highway she was in her lane following a car whose chrome shone in the sun. When she realized the car was approaching her, she turned to her right. Wymer testified that he was in his lane and had seen the Harmon car come onto the highway, and that it suddenly swerved to its left into his lane. He turned to his left, and the two cars met. This case ensued.
The consolidated case was tried to a jury, which returned a verdict in favor of each plaintiff and against both defendants. Both defendants filed notices of appeal, but only Wymer designated any points to be relied on in this court. Mrs. Harmon filed a brief and appeared in this court in her nominal capacity of an appellant, but seeks to uphold the judgment rendered below. She has therefore abandoned her appeal and is regarded as an appellee.
Wymer’s “points relied on” are that the trial court erred in overruling his several motions below: (1) for a directed verdict at the close of plaintiffs’ case, (2) for directed verdict at the close of all the evidence, (3) to set aside the answers of the jury to special questions, and (4) for judgment or for a new trial.
The thrust of each of Wymer’s four points is that he was not ■negligent but Mrs. Harmon was. In his brief he distills his argument to two questions:
“1. Does the doctrine, or rule, of sudden emergency apply in this case? And,
“2. Was the special verdict as to defendant Wymer contrary to the evidence?”
These questions, we believe, were fully answered by the trial court when it overruled Wymer’s post-trial motions. Its memorandum adequately summarizes the evidence and the inferences to be drawn therefrom; it also deals with both the “emergency” and “no evidence” arguments advanced by appellant in a manner we would be hard put to improve upon. We therefore quote the pertinent portion:
Wymer’s first complaint deals with the answers of the jury to the following questions:
“1. Was William A. Wymer negligent in the operation of his automobile, which negligence was a direct cause of the collision?
Answer: ‘Yes’.
2.If you answer Question No. 1 yes’, then state of what said negligence consisted.
Answer:
T. Failure to maintain a proper lookout.’
‘4. Failing to stop or turn aside to avoid the collision.’ ”
Wymer contends these answers are in direct violation of the evidence and are contrary to the evidence and are in disregard to the Court’s instruction, No. 12, which was an instruction under the emergency doctrine.
At the outset, it must be observed that none of the parties have any objection to any of the instructions.
The jury also found that defendant Harmon was negligent in the following respects:
“1. Driving her car across the center line of said highway and into the eastbound traffic lane, therefore, directly in front of William A. Wymer’s vehicle.
2. Failing to keep a proper lookout for other cars properly on the highway.
3. Failing to keep her car under control.
4. Failing to reduce her speed.
5. Failing to turn aside to avoid the collision.
7. Failing to yield the right of way to William A. Wymer’s vehicle.”
Wymer contends the answers of the jury charging him with negligence, particularly in light of the answers of the jury charging Harmon with negligence, are not supported by the evidence, and are contrary to the evidence.
The evidence was uncontradicted that there were no tire marks for either car prior to the collision; there was evidence by the Highway Patrol Officers that the collision occurred in the westbound (Harmon’s) lane of traffic; there was evidence by Wymer’s expert (Razak) that the collision between the vehicles occurred substantially in the center of the highway, with Wymer’s vehicle pointed slightly northeasterly, and Harmon’s vehicle pointed slightly northwesterly. Wymer testified he was traveling east in his own lane of traffic, being closer to the shoulder of the road than to the center line of the highway in his lane of traffic; that the Harmon vehicle approached from the east, going west; both vehicles traveled at approximately 50 miles per hour, approaching each other; when the Harmon vehicle was approximately 50 feet distant from the Wymer vehicle, the Harmon vehicle swerved south across the center line; Wymer drew a sketch of Harmon’s swerve, showing approximately a 40-degree turn to its left. Wymer testified the shoulder on the south side of the road was six or seven feet wide, and there were no obstructions on the shoulder. Wymer’s wife had time to observe Harmon swerve into Wymer’s lane of traffic, and had time to exclaim: “Oh, my Lord, what are they trying to do to us?” This was before the collision. Wymer testified that he turned left in an effort to avoid the Harmon vehicle. Wymer did not apply his brakes. Under all the testimony, the collision occurred substantially in the center of the roadway. Evidence was adduced to the effect that it was impossible for these vehicles to so maneuver within the short distance described by Mr. Wymer, and the closing speed of the vehicles would bear this out. Closing speed indicated would be in the nature of 140 feet per second. Yet, Wymer testified he had time to observe Harmon’s swerve, had time to react, had time to swerve his own car from a point nearer the shoulder than to the center line, over to substantially the center of the highway; Wymer testified that his wife had time to observe the swerve of Harmon’s vehicle, and make the above exclamation prior to the collision.
The jury did find that Harmon swerved into Wymer’s lane of traffic. The jury, however, did not find the point of impact was in Harmon’s lane of traffic.
The jury concluded that Wymer’s lookout was not what it should have been and found that Wymer should have stopped or turned aside. Of course, it would have been impossible for either vehicle to have stopped, but the jury’s specifications of negligence are in the exact words of the parties’ charges of negligence and of the court’s instructions. It is within the evidence, and the jury could very well have found that Wymer’s turn to the left into the center of the highway was negligence. There was no obstruction to the shoulder of the road; the jury, within the evidence, could have found that a turn to the right, or in fact, no turn at all on Wymer’s part, would have been in order under the circumstances then existing. Instruction No. 12, contrary to the interpretation placed upon it by Wymer, does not say, and the law does not say, that under such circumstances, Wymer had a right to swerve his car to the left. The law and the instruction was that under these circumstances, Wymer was required to exercise such care as an ordinary person would exercise when confronted by a like emergency under circumstances then existing. The jury obviously found that Wymer did not have his car under control, and did not ex ercise such care as an ordinary person would exercise when confronted with a like emergency under circumstances then existing.
The Court is of the opinion that the jury’s specifications of negligence are consistent and are within the evidence.
To summarize, the trial court’s answers to appellant Wymer’s questions, which we approve, are:
(1) “Yes,” the doctrine of emergency was applicable to the situation. The jury was so instructed, and even so it found him guilty of negligence.
(2) “No.” On the contrary, there was evidence to support the jury’s special verdict that Wymer was negligent.
Having found evidence to support the jury’s finding of appellant’s negligence, our function on this appeal is fulfilled. See, Abston v. Medora Grain, Inc., 206 Kan. 727, 482 P. 2d 692; Baze v. Groff, 205 Kan. 736, Syl. ¶ 2, 473 P. 2d 59.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Fontron, J.:
This is an action by Northern Natural Gas Company, (to whom we shall refer either as plaintiff or Northern), to recover taxes paid under protest to Clay County.
The plaintiff owns and operates an interstate system of pipelines and is subject to regulation by the Federal Power Commission. Some of its Kansas property is in Clay County. The defendants named in the caption are Clay County and State officials whose duties are related to the assessment or collection of taxes.
Northern predicates its right to recover its taxes on two bases: First, that the valuations placed on its Kansas properties by the State Director of Property Valuation (herein called Director) and on the percentage share thereof allocated to Clay County, as such were upheld by the State Board of Tax Appeals, (referred to herein as the Board) are unreasonable, arbitrary and capricious. Second, that its property in Clay County is assessed at 30% of its justifiable value, while other property within the county is assessed at not more than 20%.
On June 22, 1970, the trial court sustained motions to dismiss all defendants except Alice Bender, the County Treasurer of Clay County, on the ground that she, alone, was a necessary party. Under this ruling the Clay County Clerk, ex officio County'Assessor, the Clay County Board of County Commissioners and its individual members, the State Director of Property Valuation and the State Board of Tax Appeals (which constitutes also the State Board of Equalization) and its members were dismissed from the lawsuit. This ruling forms one of the grounds of Northern’s appeal.
Shortly thereafter, the trial court further ruled that it did not have jurisdiction of one of the issues in this action, to wit, whether the valuation placed on Northern’s property by the Director and upheld by the Board, was unreasonable, arbitrary or capricious. This ruling is challenged as erroneous and is the second point raised in this appeal.
We will discuss the two points raised by Northern in reverse order. Before doing so, however, we are impelled to chronicle the events which ultimately led to the arrival of this appeal upon our doorstep.
In May, 1969, the Director of Property Valuation, whose duty it is under K. S. A. 79-1404 Fifteenth to appraise and assess, among other property, oil and gas pipelines and their properties, determined that the value of Northern’s Kansas properties was $225,096,190 and further determined, applying the 30% assessment factor set out in L. 1963, ch. 460, § 1 (since amended and now appearing as K. S. A. 79-1439) that the assessed value thereof was $67,528,850. Of this total assessed value, the Director allocated $5,163,193 to Clay County as its share thereof, and certified the same to the County Clerk.
Northern was dissatisfied with the Director’s determination and appealed therefrom to the State Board of Tax Appeals pursuant to K. S. A. 1969 Supp. 74-2426 (now L. 1971, ch. 249, § 1). The provisions of this statute will later be noted in some detail.
After hearing Northern’s appeal, the Board, on August 22, 1969, entered a final order upholding the Director’s valuation and assessment of plaintiff s properties and denying the appeal.
On September 19, 1969, the plaintiff, again following the procedures outlined in 74-2426, appealed from the Board’s final order to the District Court of Pawnee County, in which some of its properties were located. Subsequently, Northern made timely payment to Clay County, under protest, of the first half of its 1969 tax.
Northern instituted the present action under K. S. A. 79-2005 (now L. 1971, ch 303, § 1) to recover the protested tax. It was filed January 14, 1970, and while Northerns appeal from the final order of the Board (sometimes referred to herein as the direct appeal) was still pending in the Pawnee County District Court, and before the same had been heard. However, the direct appeal was later tried in Pawnee County and on July 31, 1970, the district court of that county entered judgment upholding the order of the Board. That decision of the Pawnee District Court was handed down shortly after the Clay County District Court ruled in the present case. Incidentally, the decision in the Pawnee County case (the direct appeal) was also brought to this court but has not yet been decided. If this maze of dates, actions and appeals seem confusing to the reader, we can only echo that sentiment.
Turning to the points raised on appeal, it is the position of the Clay County Treasurer, who alone remains a defendant, that the Director’s appraisal of Northern’s property (often referred to as the state appraisal, or state assessment) was upheld on appeal by the Board; that the Board’s decision is final unless reversed on a direct appeal taken therefrom under K. S. A. 1969 Supp. 74-2426; that the appeal procedure contained in 74-2426 is exclusive where a state assessment is involved; and that the validity of a state appraisal and assessment may not be challenged, nor the Director’s determination of justifiable value be attacked collaterally, in actions to recover protested taxes brought under 79-2005.
We find considerable merit in this approach. K. S. A. 79-1404 reads in pertinent part:
“That it shall be the duty of the director of property valuation, and he shall have the power and authority:
“Fifteenth. To make appraisement and assessment of all railroads and the property of railroad corporations, ... of all telegraph lines and property, of all telephone lines and property, the property of all express companies, sleeping car companies, and private car lines, doing business within the state of Kansas, of gas pipe lines and property, of all oil pipe lines and property, of all street railroads, electric lines and property, and all express company property, within and without corporate limits of cities, doing business in the state.”
K. S. A. 79-709 provides in substance that after the Director has completed the assessment, the amount thereof shall be apportioned among the several counties and other taxing districts concerned in proportionate ratios. The amounts so apportioned are then certified to the county clerk of each county who in turn notifies the proper taxing district officials thereof for their use in making their levies. (L. 1959, ch. 365, § 15, now K. S. A. 79-5a06.) Essentially this procedure was pointed out by this court in Continental Pipe Line Co. v. Cartwright, 154 Kan. 430, 118 P. 2d 1052.
Clearly, it seems to us, one of the principal objectives of this legislation must have been the attainment of uniformity in the valuation and assessment of public transportation and utility properties which extend throughout more than one county within the state, and which, from then: nature, constitute a unitary system.
The procedure appears pointedly designed to eliminate those inequalities in the assessed values of utility properties which might well occur between counties if, in each of the counties affected, (twenty-six counties are said to be involved in Northern’s several lawsuits) the local assessor was free to exercise his individual judgment and discretion.
A statewide appraisal of a statewide unitary system undoubtedly makes good sense. But the uniformity accomplished by means of a statewide assessment could largely be nullified if the assessment could be challenged in a local action to recover taxes paid under protest, filed under 79-2005, in each of the counties receiving a pro rata share of the assessment.
In our opinion the legislature intended to forestall the catastrophic consequences which might attend a flood of lawsuits challenging the validity of a state assessment, and this they sought to accomplish by providing a specific avenue through which a state assessment might reach the courts by means of a single appeal.
K. S. A. 74-2438 provides that an appeal from any finding, ruling or order of the Director can be taken to the Board of Tax Appeals. K. S. A. 74-2437 (c) specifically authorizes the Board “to hear appeals from the director of property valuation on the assessment of state assessed property.” K. S. A. 1969 Supp. 74-2426 substantially provides, so far as pertinent here, that within 10 days after the Board enters its final order on any appeal, a copy thereof be mailed to the person, firm, corporation or association who was a party to the appeal and within 30 days thereafter any such party may ap peal, in an ad valorem property tax case, to the district court of any county in which any portion of the property is located.
Northern followed the procedure outlined in 74-2426 by first appealing from the Directors appraisal to the Board and next appealing from the Board’s final order to the District Court of Pawnee County. The statutory route thus followed by Northern provides an appropriate and, we believe, an adequate means of obtaining a review of the Director’s determination of assessed value. It appears to serve well what must have been the legislative purpose of providing uniformity in the assessment of utility systems which transcend county lines. The rule is well known that in the construction of legislation, courts may look to the purpose and intent of the legislature in its enactment. (Natural Gas Pipeline Co. v. Commission of Revenue & Taxation, 163 Kan. 458, 466, 183 P. 2d 234: Tilley v. Keller Truck & Implement Corp., 200 Kan. 641, 646, 438 P. 2d 128.)
We believe that where property has been assessed by the Director on a statewide basis, the method of review outlined in 74-2426 is exclusive, and the assessment may not be challenged collaterally under 79-2005. Otherwise, not only might confusion, delay and harassment result, but multiplicity of actions, abhorred in the law, might attend as well. In Cities Service Oil Co. v. State Board of Equalization, 199 Kan. 235, 237, 428 P. 2d 456, this court said that:
“. . . the law is so watchful against all vexatious suits that it will not suffer two actions of the same nature to be pending for the same demand. . . .”
Taxation is an unloved subject, but no one in modern times, to our limited knowledge, has come up with a practical alternative. Government is indispensable to any civilized society and an orderly system of assessment and collection of taxes is an imperative to a government’s successful operation. In Mobil Oil Corporation v. McHenry, 200 Kan. 211, 436 P. 2d 982, we stressed the necessity of order and timeliness in a viable system of taxation and we surveyed in some detail the procedures ordained by the legislature in providing a logical and orderly scheme. On page 223, we said:
“The tax procedure and time schedule established by the legislature in Chapter 79 of the Kansas Statutes Annotated requires the work of taxation to be done speedily and to the end that the business of government may be carried on.”
The same theme runs through our opinion in Mobil Oil Corporation v. Medcalf, 207 Kan. 100, 483 P. 2d 1111:
“The importance which this court has attached to the orderly and timely execution of the legislative scheme of taxation was demonstrated early in our jurisprudence in Benn v. Slaymaker, 93 Kan. 64, 143 Pac. 503. . . (p. 105).
It must be conceded that 79-2005 contains no language limiting the grounds on which the legality of a protested tax may be assailed. However, the statute must be considered, together with all other statutes bearing on taxes, as an integral part of the overall pattern and scheme of taxation. Viewing the statute from this standpoint, we reach the conclusion that 79-2005 is not now an appropriate vehicle for challenging the validity of a state assessment.
We are aware of our decision in Sinclair Pipe Line Co. v. State Commission of Revenue & Taxation, 181 Kan. 310, 311 P. 2d 342. That was an action to recover taxes paid under protest on property assessed by the then State Commission of Revenue and Taxation sitting as the State Board of Appraisers. The decision in that case was handed down in 1957, when the provisions of G. S. 1949 74-2426, the predecessor of our present statute, did not apply to ad valorem taxes. Hence, the route now available under 74-2426 for contesting the validity of a state assessment made for ad valorem tax purposes was not open to a taxpayer. Nor was that route available in 1963, when this court in Builders, Inc. v. Board of County Commissioners, 191 Kan. 379, 381 P. 2d 527, noted the fact as follows:
“. . . the legislature specifically prohibited an appeal from the decision of the State Board of Equalization by the following proviso in G. S. 1961 Supp., 74-2426:
“ ‘Provided, That no such appeal may be taken to the district court from any order determining, approving, modifying or equalizing the assessment of property for property tax purposes. . . (pp. 384, 385.)
It was only in 1969 that the legislature cured the deficiency by adding to the proviso quoted above, the following words: “unless such order is unreasonable, arbitrary or capricious.” The Sinclair case does not provide a precedent, as Northern would have us believe.
Similarly, the case of Kansas City Southern Rly. Co. v. Board of County Comm'rs, 183 Kan. 675, 331 P. 2d 899, lacks precedential value. It also was decided prior to the 1969 amendment.
The plaintiff voices concern over the fact that it must pay its taxes under protest to avoid payment of interest and that it can recover the taxes thus paid only through a proceeding filed under 79-2005. To counter this position the defendant points to actions which the Board is empowered to take under K. S. A. 79-1702 (now K. S. A. 1970 Supp.) to order the cancellation of a tax unpaid or the refund of a tax collected, and suggests that under the authority of this statute effective relief could be provided should Northern prevail in its direct appeal.
We need not speculate as to whether the relief which the Board might afford under 79-1702 is equivalent to that which could be obtained under 79-2005. We think there can be no insuperable obstacle to a taxpayer filing a protest action predicated on an alleged illegal state appraisement or assessment and, if the validity thereof has not previously been determined through the direct appeal approach, having trial of the action deferred until such a determination be forthcoming.
The conclusion we reach today has been foreshadowed in prior decisions. Anderson v. Dunn, 189 Kan. 227, 368 P. 2d 6, was an action to recover taxes paid under protest. In the course of our opinion, which involved primarily the admissibility of evidence, we said:
“The action at bar is not one to question the proceedings of the county board, but an independent action to recover taxes paid tender protest. This action is not even one to review the proceedings of the State Board of Tax Appeals. (Union Pacific Railroad Co. v. Sloan, 188 Kan. 231, 361 P. 2d 889; City of Kansas City v. Jones & Laughlin Steel Corp., 187 Kan. 701, 360 P. 2d 29.) (p.228.) (Emphasis supplied.)
In McManaman v. Board of County Commissioners, 205 Kan. 118, 468 P. 2d 243, an action which involved an alleged lack of uniformity in the assessment of property between different taxing districts, the court said:
“. . . A protest action, by its very nature, is directed to the acts of local taxing officials in the county in which the taxes are protested, rather than officials of other counties or the state director of property valuation.
“Where the foundation of a taxpayer’s complaint is, as in this case, the failure of assessing officials in other counties to comply with the statute (K. S. A. 79-1439) and assess property at 30% of justifiable value, or the failure of the director of property valuation to face up to his statutory responsibility of insuring that assessment of property between different counties be uniform and equal, we hold that these matters cannot furnish the basis for granting relief in a protest action. In reaching this conclusion, we in no way suggest that relief is unavailable under K. S. A. 79-2005 where there is inequality or lack of uni formity in assessments amounting to constructive fraud within the county where the taxes are protested. (See, Beardmore v. Ling, supra; Sebits v. Jones, supra; Cities Service Oil Co. v. Murphy, supra; Addington v. Board of County Commissioners, supra.)” (pp. 124, 125.)
See, also, Harshberger v. Board of County Commissioners, 201 Kan. 592, 442 P. 2d 5.
We experience some difficulty in following the plaintiffs contention that as construed by the trial court, and now by this court as well, K. S. A. 1969 Supp. 74-2426 violates article 11, § 1 of the Kansas Constitution and the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution.
Briefly put, article 11, § 1 of the Kansas Constitution states that the legislature shall provide for a uniform and equal rate of assessment and taxation, while provisions of the 14th Amendment to the United States Constitution prohibit the states from depriving any person of life, liberty or property without due process of law and from denying to any person within its jurisdiction the equal protection of its laws.
Basically the plaintiff’s argument, as we understand it, boils down to this; If the validity of a statewide assessment made by the Director can be challenged only through the direct appeal approach provided in 74-2426, while an assessment made locally by the county assessor may be challenged in a protest action pursuant to 79-2005, an unreasonable and arbitrary classification results which violates constitutional mandates.
First of all we might say this court has held that uniformity in taxing implies equality in the burden of taxation and that true equality cannot exist without uniformity in the basis of assessment as well as in the rate of levy. (Addington v. Board of County Commissioners, 191 Kan. 528, 531, 382 P. 2d 315; Commercial National Bank v. Board of County Commissioners, 201 Kan. 280, 286, 440 P. 2d 634.) However, the rationale of these cases is not determinative of the matter posed here, for it is argued that the classification of Northern’s property is unreasonable.
We cannot agree with that argument. The classification of plaintiff’s property does not appear to us as arbitrary or unreasonable with respect either to assessment or to method of review. Although the utility properties described in 79-1404 Fifteenth are appraised and assessed by the Director on a statewide basis while other property is locally valued and assessed, the property in both categories is actually assessed on the same basis, i. e., it is appraised or valued at justifiable (now fair market) value in money and assessed at 30% thereof. (L. 1969, ch. 433, §§2, 3, 6, now K. S. A. 79-501, 79-1406, 79-1439.)
We believe it only realistic to require that property of public utility and transportation systems, normally not confined within the boundaries of a single county, be appraised and assessed on a statewide and unitary basis by a single assessing authority, so long as such property is measured by the same yardstick as property valued and assessed on a local basis.
Whether the assessment be statewide or local, provision is made for redress to the courts through appeal procedures. Where assessment is by the state, appeal is first to the Board and thereafter judicial review is available by appeal to the district court of any county in which any part of the property is located. The requirements of due process are met. (See Zimmerman v. Board of Review of the Employment Security Division, 208 Kan. 68, 490 P. 2d 359.)
The case of Casco Co. v. Thurston County, 163 Wash. 666, 2 P. 2d 677, is persuasive. There, the plaintiff claimed that an act passed by the legislature relating to the recovery of taxes paid under protest was unconstitutional because of a provision permitting public service companies, whose operating property was located in more than one county and was assessed as a unit by the state board, to file an action in any one of the counties in which the tax was payable, joining as defendants all the counties to which their taxes had been paid, and to recover in a single action from all of them.
It was contended this section of the act created an unlawful discrimination and offended against the Constitution. In rejecting this contention the Washington Supreme Court said:
“As we understand it, the public service instrumentalities mentioned in this section are the only ones having property in more than one county whose property is assessed as a unit by the state. That being so, they naturally form a class distinct from other taxpayers, and it would appear natural and reasonable to so classify them as to reduce litigation, and simplify and speed the final adjustment of their tax controversies, which might otherwise congest the court dockets of every county in the state. We see nothing arbitrary about such a classification. . . .
“Certainly, it is well within the limits set by the United States supreme court in the recent case of State Board of Tax Commissioners of Indiana v. Jackson, 283 U. S. 527, 51 Sup. Ct. 540, 75 Law Ed. 1248 . . .” (p. 675.)
An additional claim by Northern is briefly briefed and merits brief mention. It is asserted that the trial court’s interpretation of 79-2005 imposes an impermissible burden on interstate commerce in violation of article 1, § 8 of the federal Constitution. The sole authority cited by plaintiff is Norfolk & W. R. Co. v. Tax Comm'n., 390 U. S. 317, 19 L. Ed. 2d 1201, 88 S. Ct. 995. That case holds that application of a track mileage formula used by a state in assessing the rolling stock of an interstate railroad located within its borders, which results in an assessment far exceeding the value of the property, violates the Commerce Clause.
We recognize the rationale of Norfolk, but the case is not in point. The issue before us in this appeal is not whether the assessment of Northern’s property by the Director is unreasonable or arbitrary to the point of constituting, in effect, a tax upon its property in other states, and thus burdening commerce, but whether determination of the question may be presented in an action brought under 79-2005. Although we hold that the validity of the assessment itself may not be challenged under that statute, we also point out that a means of determining the question is provided through the procedures set out in 74-2426. We perceive no burden on interstate commerce resulting from this interpretation.
Finally we turn to the issue of parties. The Board of County Commissioners of Clay County, Kansas, and its individual members, together with the County Clerk and ex officio County Assessor, moved that the action be dismissed as to them for the asserted reason they were not indispensable, necessary or proper parties. This motion was sustained and the Clay County defendants were dismissed.
As we read the contents of their motion, the Clay County officials apparently relied on language found in the recent case of Cities Service Oil Co. v. Kronewitter, 199 Kan. 228, 230, 428 P. 2d 804, also a tax protest action. Their reliance, however, we believe was ill founded.
It is true we said in Kronetoitter that public officials who determine or review valuation and assessment of property for tax purposes do not thereby become indispensable, necessary or proper parties in an action to recover protested taxes. Those words, however, must be viewed in relation to the circumstances concerning which they were written. In the Kronewitter case the motion to dismiss was filed by members of the State Board of Tax Appeals, and the judgment of dismissal which we upheld pertained only to them, not to county officials.
We adhere to the view that state taxing officials are not indispensable, necessary or proper parties in a local action to recover taxes paid under protest, for they claim no beneficial interest in the taxes whose recovery is sought, nor have they any function to perform with respect to a refund. (See McManaman v. Board of County Commissioners, supra.)
But local officials whose duties extend far beyond the mere assessment and valuation of property occupy a different status. Not only may the financial resources of the county with whose government they are charged be diminished or impaired by the refund of protested taxes, but theirs will be the responsibility of minimizing or recouping the loss.
It is of interest to note that L. 1971, ch. 303, § 1 (2), provides that whenever a taxpayer shall be entitled to recover any taxes paid under protest, the governing board of the taxing district or districts to which such taxes were distributed shall provide for the refund, and where by reason of the refund it would be impossible to pay for the imperative functions of the fund for the current year, the governing body shall issue no-fund warrants to pay such refund, and shall make a tax levy the following year to pay such warrants and interest. While this act has no bearing on the present lawsuit, being effective only from and after April 30, 1971, it may be said to indicate legislative thinking in this area.
Whether or not the County Commissioners and the County Clerk of Clay County may properly be denominated indispensable or necessary parties in this lawsuit, it is our opinion they at least come within the category of proper parties defendant and were correctly joined as such. In 67 C. J. S., Parties, § 33, p. 948, we find the statement that in some suits all persons materially interested in the event of the suit may be made parties defendant. The shoe appears to fit our case.
We affirm the judgment of the trial court so far as it holds that it lacked jurisdiction to determine, in this protest action, the validity of the assessment of plaintiff's property made by the State Director of Property Valuation and upheld by the State Board of Tax Ap peals, but we reverse the judgment so far as it dismisses the action as to the Board of County Commissioners of Clay County, the members of said Board and the County Clerk of that county. | [
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The opinion of the court was delivered by
NüSS, J.:
Barry Vorhees filed suit against Francisco J. Baltazar, whom he knew to be deceased, and against the unappointed administrator of Baltazar s estate for personal injuries that Vorhees sustained in a two-vehicle accident. Although an administrator was eventually appointed, the district court dismissed tire suit, and the Court of Appeals reversed in Vorhees v. Baltazar, No. 94,123, unpublished opinion filed March 10, 2006. This court granted the administrator s petition for review; our jurisdiction is under K.S.A. 20-3018(b).
The issues on appeal, and our accompanying holdings, are as follows:
1. Did the Court of Appeals err in allowing Vorhees to docket his appeal out of time? No.
2. Did the district court err in dismissing Vorhees’ suit? Yes.
3. Was service of process effective upon the Administrator? Yes. Accordingly, we affirm the Court of Appeals, reverse the district court, and remand for further action consistent with this opinion.
FACTS
The facts are not in dispute. On February 12, 2002, Barry D. Vorhees and Francisco J. Baltazar were the drivers involved in a two-vehicle accident. Baltazar died that day, and Vorhees suffered severe injuries. On January 26, 2004, 17 days before the statute of limitations was to run, Vorhees filed suit against “Francisco J. Baltazar and tire Administrator of the Estate of Francisco J. Baltazar” in the Linn County District Court. The petition recites that Baltazar was deceased, previously resided at 121 W. 4th, #704, Pitts-burg, Kansas, and could “be served through the administrator of his estate.”
A summons for the administrator of Baltazar s estate was issued that same day. However, 8 days later it was returned unserved because the administrator was “not known.”
On February 11, 2004, the day before the statute of hmitations was to run, Vorhees filed a “Petition for Issuance of Letters of Administration” pursuant to K.S.A. 59-2201 et seq. in the Linn County District Court, incorrectly reciting that Baltazar had lived in Linn County in “Pittsburg, Kansas.” He requested that one Zachary S. Gerber be appointed as administrator and be issued letters of administration.
On April 22, 2004, Vorhees filed for a 30-day extension to serve the administrator. He alleged that venue for appointment of an administrator had been transferred to Crawford County — site of Pittsburg — and that appointment had not yet been made. The Linn County District Court granted Vorhees’ motion, stating that “[pjursuant to K.S.A. 60-203(a), Plaintiff shall have up to and including May 26, 2004, in which to serve Defendants.”
On May 11, 2004, 2 years and approximately 3 months after the date of the accident, the Crawford County District Court appointed Steven Horak as the administrator of Baltazar’s estate (the Administrator). After finding that Horak,” named by petitioner as proposed administrator of the estate of Francisco J. Baltazar, having been duly appointed and qualified as administrator,” the court issued letters of administration, incorrectly labeled “Letters Testamentary.”
Approximately 2 weeks later, the Administrator went to Vorhees’ attorney’s office where the attorney’s law clerk presented him with copies of the summons, petition, and other probate papers. In the clerk’s presence, the Administrator executed the “Return on Service of Summons,” which stated that die Administrator “acknowledge[d] receipt of service of summons and petition in the above entitled case this 24th day of May, 2004.” Vorhees never took any steps to amend his original petition, i.e., to formally acknowledge that Horak had been appointed as administrator.
On June 14, 2004, the Administrator filed a motion to dismiss, asserting that Vorhees had failed to commence the suit within the statute of limitations because he sued “a deceased person, known to be deceased at the time the Petition was filed, and against a nonexistent administrator, also known not to exist at the time the Petition was filed.” The motion also alleged insufficiency of process and insufficiency of service of process because of purported deficiencies in the law clerk’s authority to serve.
The district court granted the motion to dismiss, reasoning that neither defendant had the capacity to be sued before the statute of limitations ran:
“No entity with the capacity to be sued ever existed during the entire two year period of the statute of limitations. Service of Process cannot ‘relate back’ if there is no legal entity to relate back to. . . . [T]he statute of limitations bars plaintiffs claim and this case should be and is hereby dismissed.”
After Vorhees filed a motion to reconsider, the district court concluded that it lacked jurisdiction to hear the case.
The Court of Appeals reversed, holding that the district court had subject matter jurisdiction; Vorhees timely commenced the action before the statute of limitations lapsed as described in K.S.A. 60-203(a); and service was properly effected upon the Administrator.
ANALYSIS
Issue 1: The Court of Appeals did not err in allowing Vorhees to docket his appeal out of time.
The threshold question on appeal is whether the Court of Appeals erred in allowing Vorhees to docket his appeal out of time. If so, the rest of the appellate issues are moot. The Administrator specifically asserts that Vorhees failed to make a showing of excusable neglect for his late filing.
The district court entered its order denying Vorhees’ motion for reconsideration on January 19,2005. Vorhees filed his timely notice of'appeal on January 24, 2005, and on March 9 filed a motion for leave to docket out of time, asserting:
“3. Appellant’s counsel did not receive the documents that are required to accompany the docketing statement within the requisite time for filing the docketing statement.
“4. Appellant’s counsel has not obtained a certified file stamped copy of the Notice of Appeal, Order on Appellant’s Motion for Reconsideration, Order of Dismissal and all post-hearing motions in the above-captioned matter. These are included herein for fifing with the remainder of the materials required for docketing this appeal. These combined documents complete the requirement for docketing the appeal.”
On March 15, 2005, the Administrator filed his response, arguing that Vorhees’ motion should be denied because the motion reveals “not excusable neglect but simple neglect.” Three days later, the Court of Appeals granted Vorhees’ motion, noting the Administrator’s response.
Supreme Court Rule 2.04 (2006 Kan. Ct. R. Annot. 11) states that within 21 days of filing the notice of appeal, the appellant “shall” obtain and file various pleadings with the court. Based on the language of Rule 2.04, the Administrator argues that Vorhees was required to file the necessary documents by February 14,2005; they were not actually filed, however, until March 18, 2005.
The Administrator further asserts that the Court of Appeals should have dismissed the appeal pursuant to Supreme Court Rule 5.05 (2006 Kan. Ct. R. Annot. 34). See Carson v. Eberth, 3 Kan. App. 2d 183, 185, 592 P.2d 113 (1979) (if an appeal is docketed late, remedy lies under Rule 5.05 under which dismissal is discretionary with the appellate court). Rule 5.05 states: “On the motion of a party . . . , the appellate court may dismiss an appeal on account of a substantial failure to comply with the rules of the court.” (Emphasis added.)
As Carson states, dismissal under Rule 5.05 is discretionary. Discretion is abused only when no reasonable person would take the view adopted by the district court. State v. Sanchez-Cazares, 276 Kan. 451, 454, 78 P.3d 55 (2003). Although the Administrator acknowledges this standard, he fails to show the Court of Appeals abused its discretion by denying his motion to dismiss the appeal for Vorhees' failure to comply with the rules of the court. See 276 Kan. at 454 (party who asserts abuse of discretion bears the burden of showing it). Rather, he essentially asserts that Vorhees should have given better reasons for docketing late. Additionally, the Court of Appeals has acknowledged that jurisdictional rules should be read liberally “to allow litigants the opportunity to have their claims heai'd and determined.” Sanders v. City of Kansas City, 18 Kan. App. 2d 688, 692, 858 P.2d 833, rev. denied 253 Kan. 860 (1993), cert. denied 511 U.S. 1052 (1994).
We conclude the Court of Appeals did not abuse its discretion.
Issue 2: The district court erred in dismissing Vorhees’ suit.
Jurisdiction
In denying Vorhees’ motion for reconsideration, the district court asserted that it had no jurisdiction:
“In effect, the plaintiff now argues that since an estate was opened one day prior to the running of the statute of limitations, the subsequent appointment of the special administrator several months later should relate back to the opening of die estate.-
“The mere fact that the plaintiff sought to open an estate one day prior to the expiration of the applicable statute of limitations does not save this action. The appointment of the special administrator well after the statute of limitations has expire[d] still represents a bar to the Court asserting jurisdiction over this action. See Moore v. Luther, 29 Kan. App. 2d 1004 (2001) and Deeds v. Estate of Barker, 74 P.3d 594 (2003).” (Emphasis added.)
The Court of Appeals reviewed the issue of jurisdiction, but ruled that jurisdiction existed, distinguishing Moore v. Luther, 29 Kan. App. 2d 1004, 35 P.3d 277 (2001). It noted: “[Ujnlike Moore, when the district court dismissed Vorhees’ action, an administrator had been appointed and served, thus creating a party defendant and giving the court jurisdiction to hear the case. See Anderson v. Estate of Peterson, No. 90,863, unpublished opinion filed September 24, 2004, slip op. at 3; Moore, 29 Kan. App. 2d at 1007.” (Emphasis added.) Slip op. at 6.
Under the facts and the Administrator’s allegations in the instant case, the purported threshold issue of jurisdiction is a red herring. The relevant threshold issue is instead one of capacity to be sued, i.e., whether the defendant named at the time of the petition’s timely filing — “Administrator of the Estate of Francisco J. Baltazar” — was a legal entity capable of being sued. Under Kansas law, absent an administrator or an executor, an estate lacks the ability to sue or be sued. See Ryan v. Williams, Adm’r, 29 Kan. 487, 498-500 (1883). Clearly, at the time of filing, the decedent Francisco J. Baltazar was not, and would never be, capable of being sued and that issue is moot. See Egnatic v. Wollard, 156 Kan. 843, 856, 137 P.2d 188 (1943) (when a person dies, his or her individual capacity to respond in damages for torts ceases; thereafter, his or her financial obligations must be met by his or her estate).
We believe the lower courts’ understandable confusion regarding jurisdiction as a necessary issue in this case begins with Moore. There, plaintiffs filed suit against Luther for injuries arising out of a car accident. Suit was filed after Luther died and 5 days prior to the expiration of the statute of hmitations. One hundred and nineteen days after the lawsuit was filed, plaintiffs first learned of Luther’s death. Pursuant to K.S.A. 60-225, which allows substitution if a party dies, plaintiffs attempted to substitute Luther’s widow, who had previously been the executor of the estate. However, the district court denied the motion and dismissed the claim, finding that the statute of limitations barred the action.
The question in Moore, as stated by the Court of Appeals, was “[wjhether a litigant can use this statute [K.S.A. 60-225] to save a cause of action filed against a decedent.” 29 Kan. App. 2d at 1008. As a preliminary matter, however, the Moore court determined that the district court lacked jurisdiction:
“There is currently no party defendant. A decedent does not have the capacity to be sued. [Citations omitted.] Therefore, Glen Luther is not a proper defendant. The plaintiffs have not effected the appointment of a special administrator to proffer as a substitute. Without adversarial parties, the trial court lacked subject matter jurisdiction over the case. ‘In a suit or proceeding in personam, of an adversary character, the court can acquire no jurisdiction for the purpose of trial or judgment until a party defendant is brought before it who actually or legally exists and is legally capable of being sued.’ 59 Am. Jur. 2d, Parties, § 41, p. 438. A dismissal based upon the statute of limitations [however,] 'operates as an adjudication upon the merits.’ [Citations omitted.] With no defendant in the lawsuit, the trial court lacked jurisdiction to make a ruling on the merits of the case. Therefore, we reverse the district court’s ruling that plaintiffs’ claims were barred by the 2-year statute of limitations and, correspondingly, that plaintiffs’ case should be dismissed with prejudice.” (Emphasis added.) 29 Kan. App. 2d at 1006-07.
We further believe the lower courts’ confusion specifically stems from the above italicized language contained in 59 Am. Jur. 2d, which is based upon an 1881 case, Ash v. Guie, 97 Pa. 493. This 125-year-old theory, i.e., a lack of jurisdiction because of a party’s lack of capacity, has fallen into disfavor. As is stated in 6A Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 1559, p. 442 (1990):
“Some early decisions suggested that a defect in capacity deprives the court of subject matter jurisdiction, since a real case or controversy does not exist when one of the parties is incapable of suing or being sued, although more recent authority has rejected that characterization. To treat capacity problems as subject matter jurisdiction defects seems to exaggerate their significance.” (Emphasis added.)
See Swaim v. Moltan Co., 73 F.3d 711, 715 (7th Cir. 1996); Summers v. Interstate Tractor & Equipment Co., 466 F.2d 42, 50 (9th Cir. 1972) (“The question of a litigant’s capacity or right to sue or to be sued generally does not affect the subject matter jurisdiction of the district court.”); and Crane Constr. Co. v. Klaus Masonry, 71 F. Supp. 2d 1138, 1141 (D. Kan. 1999).
In addition to these commentators’ reliance upon Van Dusen v. Barrack, 376 U.S. 612, 11 L. Ed. 2d 945, 84 S. Ct. 805 (1964), as an indication that capacity is not a jurisdictional issue, they look for support to Federal Rule of Civil Procedure 9(a) and contrast its features with those of subject matter jurisdiction:
“Furthermore, it is difficult to reconcile the conception of capacity as a jurisdictional matter with tire Rule 9(a) requirement that capacity be put into issue by specific negative averment, which indicates the draftsmen’s intention that the issue be excluded from the case unless expressly raised by a party at the pleading stage. This is in sharp contrast to the strong and clearly expressed policy against the waiver of subject matter jurisdiction defects.” (Emphasis added.) 6A Wright, Miller, & Kane, Federal Practice and Procedure: Civil 2d, § 1559, p. 443 (1990).
Based upon our prior holdings and Kansas statute, we agree with these commentators that subject matter jurisdiction is distinguish able from legal capacity to sue or be sued. In Mid-Continent Specialists, Inc. v. Capital Homes, 279 Kan. 178, 106 P.3d 483 (2005), we discussed standing, a component of subject matter jurisdiction, and cited with approval a Missouri case revealing standing’s distinction from capacity: “ The question of standing “does not relate to the legal capacity to sue, a defense [see K.S.A. 2004 Supp. 60-209(a)] waived unless timely asserted . . . ” 279 Kan. at 185 (quoting Pace Const. v. Mo. Hwy. & Transp. Com'n, 759 S.W.2d 272, 274 (Mo. App. 1988).
Additionally, Federal Rule 9(a), examined by the above commentators, served as a drafting model for K.S.A. 60-209(a). Augusta Oil Co., Inc. v. Watson, 204 Kan. 495, 501, 464 P.2d 227 (1970). Accordingly, we have held that when a defendant raises a plaintiff s lack of capacity to sue, its failure to comply with 60-209(a) must be regarded as a waiver of the defense. See, e.g., Van Brunt, Executrix v. Jackson, 212 Kan. 621, 624, 512 P.2d 517 (1973); Augusta Oil, 204 Kan. at 501. By contrast, we have held that subject matter jurisdiction, unlike capacity, cannot be waived and may be raised at any time, whether it be for the first time on appeal or even upon the appellate court’s own motion. Mid-Continent Specialists, Inc., 279 Kan. at 185-86.
Accordingly, although the defendant named at the time of the petition’s timely filing, “Administrator of the Estate of Francisco J. Baltazar,” may have lacked the capacity to be sued because Horak had not yet been appointed, and had still not been appointed by the 2-year anniversary of the date of the accident, there is no legitimate controversy concerning the district court’s subject matter jurisdiction over this case.
Statute of limitations
The Administrator argues that because neither defendant was in existence before the 2-year anniversary date of the accident, dismissal was required under the statute of limitations. See K.S.A. 60-513. He essentially agrees with the district court that there was nothing to which the later appointment of the Administrator could relate back. In the alternative, he argues that if an administrator can be appointed after the 2-year anniversary date, a formal amendment under K.S.A. 60-215 is required to properly name the actual administrator as defendant.
Vorhees responds that his action naming the two defendants was timely filed because it was performed within 2 years of the accident. However, if his petition filing was deficient, he argues that the deficiency was cured by his subsequent petition on February 11, 2004, — the day before the 2-year anniversary date — requesting an administrator be appointed. As a second alternative, he essentially argues that he put the outlines of the administrator clearly in place when he filed his original petition genetically naming “the Administrator of the Estate of Francisco J. Baltazar.” According to this argument, in effect Vorhees merely colored in the space within the Administrator outline 3 months later when Horak was formally appointed; as a result, no formal amendment was required.
The facts are undisputed. We decide this issue of first impression as a matter of law; our review is de novo. See Bomhoff v. Nelnet Loan Services, Inc., 279 Kan. 415, 419-20, 109 P.3d 1241 (2005) (summary judgment on undisputed facts); Schmidtlien Electric, Inc. v. Greathouse, 278 Kan. 810, 819, 104 P.3d 378 (2005) (statutory interpretation); Brown v. State, 261 Kan. 6, 8, 927 P.2d 938 (1996) (interpretation and application of statute of limitations).
We begin our analysis by rejecting Vorhees’ argument that the mere filing of his February 11, 2004, petition for appointment of an administrator cured any deficiency in his original negligence petition. Mere filing which seeks appointment does not equate to actual appointment, as demonstrated by his own pleadings. Among other things, his February 11 petition requested that Gerber serve, but the ultimate appointment was of Horak 90 days later.
Moreover, Kansas statutes do not support Vorhees’ argument. K.S.A. 59-2239(2) provides:
“Nothing in this section shall affect or prevent the enforcement of a claim arising out of tort against the personal representative of a decedent within the period of the statute of limitations provided for an action on such claim. For the purpose of enforcing such claims, ... a special administrator [may be] appointed, and suit filed against tire administrator within the period of tire statute of limitations for such action. . . . The action may be filed in any court of competent jurisdiction and the rules of pleading and procedure in the action shall be the same as apply in civil actions. Any such special administration shall be closed and the special administrator promptly discharged . . . upon conclusion of any action filed.”
K.S.A. 59-710, which establishes an expedited procedure for administrator appointment, also fails to suggest mere filing suffices:
“For good cause shown a special administrator may be appointed pending the appointment of an executor or administrator, after the appointment of an executor or administrator without removing the executor or administrator or pursuant to subsection (2) of K.S.A. 59-2239 as amended by this act. The appointment may be for a specified time, to perform duties respecting specific property, or to perform particular acts.” (Emphasis added.)
The expedited procedure contained in K.S.A. 59-2204 also fails to support Vorhees’ argument:
“A probate proceeding may be commenced in the district court by filing a petition and causing it to be set for hearing. When a petition is filed, the court shall fix the time and place for the hearing on it. When a petition is filed for the appointment of a personal representative, the court may appoint the proposed personal representative or some other suitable person, with or without bond, to conserve the estate until a hearing is had and a personal representative is appointed.” (Emphasis added.)
We conclude that none of these statutes indicates that mere filing equates to actual appointment of the estate administrator. We consequently hold that the February 11 petition for appointment did not cure any administrator capacity deficiency in the January 26 negligence petition.
We next turn to the argument that because there was no defendant capable of being sued before the statute of limitations ran, there was nothing to which the later appointed, and served, Administrator could relate back. Accordingly, the statute of limitations bars the action. K.S.A. 60-203(a) provides:
“A civil action is commenced at the time of: (1) Filing a petition with the cleric of the court, if service of process is obtained or the first publication is made for service by publication within 90 days after the petition is filed, except that the court may extend that time an additional 30 days upon a showing of good cause by the plaintiff; or (2) service of process or first publication, if service of process or first publication is not made within the time specified by provision (1).”
As noted, Vorhees’ petition was timely filed. It named as defendants Francisco J. Baltazar, who was deceased, and the “Admin istrator of the Estate of Francisco J. Baltazar,” who had not yet been appointed. Horak’s actual appointment was not made until 89 days after the statute of limitations had run. Accordingly, at the time of filing, the Administrator — although named as a defendant — had no capacity to be sued. See Ryan, 29 Kan. at 498-500.
An analogous situation occurred in Austin Nursing Center, Inc. v. Lovato, 171 S.W.3d 845 (Tex. 2005). There, Margarita Torres Wilson died on August 18,1998. On January 7,2000, her daughter, Pauline Wilson Lovato, filed a survival action to, recover for Wilson’s personal injuries. Lovato alleged that she was the “Personal Representative” of Wilson’s estate, but acknowledged that “no administrator [of the estate] ha[d] been appointed.” 171 S.W.3d at 847. Two months after filing suit, in March 2000, Lovato filed an application in the probate court asking to be appointed administrator of her mother’s estate. The statute of limitations ran on November 1, 2000 (after some tolling), and on April 22, 2002, the defendant Austin Nursing Center moved for summaiy judgment arguing, among other tilings, that the survival claim was barred by the statute of limitations.
Lovato was finally appointed administrator 3 weeks later on May 9, 2002. She then filed an amended petition on May 20, 2002, alleging that she was now the “Independent Administratrix” of the Estate of Margarita Torres Wilson. 171 S.W.3d at 847. The trial court granted the nursing center’s summaiy judgment motion, and the Court of Appeals reversed.
The Texas Supreme Court first observed that most cases involve an amended pleading alleging a plaintiff s representative capacity for the first time.
“Generally, cases involving post-limitations representative capacity involve an amended pleading alleging that capacity for the first time. [Citations omitted.] In such cases, the issue is usually whether the plaintiff s post-limitations amendment, altering tire plaintiffs capacity, can relate back to the plaintiffs pre-limitations pleadings.” 171 S.W.3d at 852.
It then observed that Lovato presented a different situation, i.e., the plaintiff s representative capacity had been asserted in the original petition:
“This case is somewhat unusual, however, because Lovato has alleged representative status on behalf of tire estate in every petition filed with the trial court. Her original petition asserted that she was the 'Personal Representative of the Estate of Margarita Torres Wilson.’ This allegation . . . asserted that Lovato was bringing suit in her capacity as the estate’s representative.” 171 S.W.3d at 852.
The Lovato court therefore framed the more precise issue before it as follows:
“Thus, the issue here is not whether her amended pleadings relate back to her original petition — as every petition alleges her representative status — but whether her post-limitations capacity cures her pre-hmitations lack thereof. We conclude that it does.” (Emphasis added.) 171 S.W.3d at 852.
In support, the court observed that it had previously allowed a plaintiff to change her capacity. In Davis v. Preston, 118 Tex. 303, 16 S.W.2d 117 (1929), a widow filed suit in her individual capacity and later amended her pleadings to assert her administratrix capacity, with the court holding “ ‘[t]hat this defect did not prevent her suit from being “properly commenced” ’ prior to expiration of the statute of limitations.” Lovato, 171 S.W.3d at 852.
The court next observed that similar allowance had been granted when the defendant’s capacity had been changed:
“[Wjhen faced with a change in a defendant’s capacity — an amended petition filed against an estate’s representative, when the original petition named only the estate itself — we held that limitations did not bar the claim, because ‘the purpose and tire nature of the claim asserted were clear from the outset.’ Price v. Estate of Anderson, 522 S.W.2d 690, 692 (Tex. 1975); see also Rooke v. Jenson, 838 S.W.2d 229, 230 (Tex. 1992).” 171 S.W.3d at 853.
The court then reasoned that because it had held that a plaintiff s amended pleading alleging representative capacity satisfied the relation-back requirements, then, a fortiori, an original petition that alleges the correct capacity should suffice for hmitations purposes. 171 S.W.3d at 853. The court only required that capacity, if challenged, be established within a reasonable time. The Texas statute referenced by the court, Tex. R. Civ. Proc. 93(1)-(2) (West 2006), allows a defendant’s challenge to the defendant’s capacity to be sued or the plaintiffs capacity to sue. Texas case law apparently provides the opposing party a reasonable time to cure any defect in capacity. Accord Lorentz v. Dunn, 171 S.W.3d 854 (Tex. 2005).
Lovato’s guidance is particularly useful because tire Texas case law it discussed is similar to Kansas case law. For example, we have allowed an estate administrator with no capacity to sue to be exchanged for one with capacity although her appointment did not occur until after the statute of limitations had run. In Williams v. Bridge & Iron Co., 111 Kan. 34, 206 Pac. 327 (1922), a wrongful death petition was timely brought in the name of William Minney, “the duly appointed, qualified, and acting administrator of the estate of Archibald Minney, deceased.” 111 Kan. at 34. Five months after the statute of limitations ran, the defendant filed a demurrer, alleging inter alia, that the plaintiff — as a Kansas administrator— had no legal capacity to sue. The next month Mary Williams was appointed as public administrator of Archibald Minney’s estate by a Missouri probate court. The following month the trial court granted a joint motion of William Minney and Mary Williams, as estate administrators, to exchange Williams for Minney as tire plaintiff. Williams, as Missouri administrator, then filed an amended petition which, like the original petition, was limited to the claim for Archibald’s wrongful death.
This court acknowledged: “Of course the Kansas administrator had no legal capacity to sue and consequently could not maintain the action . . . , and just as certainly a Missouri administrator could maintain such action under Missouri statutes inserted in the pleadings, and under our own code . . . .” 111 Kan. at 35. In affirming the post-limitations administrator appointment and exchange, we characterized a precedential holding from Harlan v. Loomis, 92 Kan. 398, 140 Pac. 845 (1914), as follows:
“[T]he substitution of one party for another as plaintiff did not change the cause of action, and that such amendment related back to the institution of the action and that the statute of limitations stopped running as to the substituted plaintiff when the action was begun rather than when the substitution was made.” (Emphasis added.) 111 Kan. at 36.
The Williams court held that its view was in accord with Mo., Kans. & Tex. Ry. v. Wulf, 226 U.S. 570, 57 L. Ed. 355, 33 S. Ct. 135 (1913). There, a mother brought a suit for her son’s wrongful death in her capacity as next of kin and sole beneficiary. The defendant railroad alleged that the federal law under which she pro ceeded required suit to be brought by a representative. After the statute of hmitations had run, the trial court allowed the mother to amend her complaint, which stated she had now been appointed temporary administratrix of her son s estate; she brought suit in both her individual and representative capacities. The Court upheld the amendment and its relation back, stating that the only difference between the petitions had been the difference in capacities in which suit had been brought. Cf. Montgomery Ward & Co. v. Callahan, 127 F.2d 32, 36 (10th Cir. 1942) (under Kansas law, where guardian ad litem may not maintain the action, legal guardian appointed after statute of limitations has run maybe substituted as plaintiff); Sundgren v. Topeka Transportation Co., 178 Kan. 83, 283 P.2d 444 (1955) (amendment of personal injury petition to change plaintiff in his individual capacity to now state action was brought by employer in name of its employee for benefit of employer, employee, and insurance company as their interests may appear; relation back allowed of amended petition filed more than 2 years after cause of action accrued).
More recently, in Shinkle v. Union City Body Co., 94 F.R.D. 631, 637 (D. Kan. 1982), the United States District Court for the District of Kansas addressed a Kansas survival action timely brought by the “heirs at law of the decedent Victor Shinkle.” After the statute of limitations had run, one of Victor’s heirs was appointed as administrator of his estate. The defendants argued that dismissal was required under the statute of limitations because the heirs were not proper parties to bring the action, only the decedent’s personal representative. The court allowed the plaintiff to be changed from the heirs of Victor Shinkle to “Mary Catherine Shinkle as administrator of estate” and ruled that this amendment related back to the filing of the original complaint even though made more than 2 years after the cause of action arose. 94 F.R.D. at 637. The court further held that “[tjhis result also agrees with the Tenth Circuit’s interpretation of Kansas Supreme Court cases,” i.e., Williams and Harlan. 94 F.R.D. at 638.
In addition to reviewing Texas cases involving a change in plaintiff s capacity, the Lovato court also reviewed its cases involving a change in a defendant’s capacity, i.e., when the original petition named only the estate itself, an amended petition was filed against an estate’s representative, and the court held that limitations did not bar the claim. The Kansas Court of Appeals addressed this scenario in Anderson v. Estate of Peterson, No. 90,863, unpublished opinion filed September 24, 2004, which was relied upon by the Court of Appeals in the instant case.
There, Anderson and Peterson were involved in a car accident. Anderson learned of Peterson’s later death from unrelated causes and approximately 8 days prior to the expiration of the statute of limitations, he filed suit against the “Estate of Gordon Peterson, deceased.” Anderson, slip, op. at 2. His petition stated that he did not know whether an administrator had been appointed but that he intendéd to serve the administrator once appointed. Indeed, at the time the petition was filed, “there was no existing court proceeding nor any personal representative empowered to act on behalf of the estate.” Slip op. at 3.
After the statute of limitations had run, but prior to the expiration of time allowed for service of process under K.S.A. 60-203(a)(1), a special administrator was requested by Anderson, appointed by the court, and served with process. Defense counsel then filed a motion to dismiss for lack of subject matter jurisdiction. Over a month later, Anderson filed a motion to amend the petition to change defendant’s generic estate name to “Daniel J. Sevart, Special Administrator of the Estate of Gordon L. Peterson, deceased.” Slip op. at 3. The district court denied Anderson’s motion and granted defense counsel’s motion to dismiss without prejudice because of lack of subject matter jurisdiction, citing, inter alia, Moore v. Luther, 29 Kan. App. 2d 1004. Anderson, slip op. at 4.
The Court of Appeals reversed tire district court. It acknowledged that when commenced, Anderson’s action lacked a legal entity as a defendant because an estate of a deceased person is not a legal entity.
“Nevertheless, that fact, alone, did not mandate a dismissal without prejudice, as the district court ruled below. Anderson had the right, under K.S.A. 2003 Supp. 60-215(a), to amend his petition to name a defendant with legal status. Thus, the district court’s dismissal, based on a finding that it lacked jurisdiction because of the initial petition, was erroneous.” Anderson, slip op. at 3.
The Anderson defendant argued that even if an amendment were granted, it could not relate back to the original filing date to save the case from the statute of hmitations. The Court of Appeals rejected this argument. Instead of dismissing the suit because of a problem regarding the name of the specific defendant, the court observed the “directive to liberally construe the Kansas Code of Civil Procedure to secure justice and . . . the principle that the law prefers for a case to be decided on the merits rather than to be dismissed on a questionable procedural ruling. [Citation omitted.]” Slip op. at 5. Because the district court had not ruled on the merits of plaintiff s motion to amend, the court remanded for that determination.
Turning now to the instant case, the Court of Appeals held that under K.S.A. 60-203(a), Vorhees commenced the action within the statute of hmitations period. This holding is consistent with another panel’s decision and with the holdings in a number of other jurisdictions under analogous circumstances. See Hinds v. Estate of Huston, 31 Kan. App. 2d 478, 66 P.3d 925 (2003) (after suing decedent, plaintiff allowed to amend under K.S.A. 60-215 to add special administrator as defendant after running of statute of limitations); Hamilton v. Blackman, 915 P.2d 1210, 1218 (Alaska 1996) (collecting many cases and stating: “We thus agree with the federal courts and those state courts holding similarly that amendments adding the representatives of the estates of deceased persons as defendants may relate back to the date of the original pleadings, even if the original pleading erroneously named only the decedent as the defendant.”); see 6A Wright, Miller & Kane, Federal Practice and Procedure: Civ. 2d § 1498 (1990).
The Administrator, however, argues that the panel failed to acknowledge or distinguish the contrary authority of Groenhagen v. Heetco, Inc., No. 89,776, unpublished opinion filed August 22, 2003. He specifically asserts that Groenhagen is instructive because there “the court [of appeals] found that an administrator is not a proper party to a case prior to her appointment and has no capacity to sue.” While a yet-to-be-appointed administrator admittedly has no capacity to sue, the Supreme Court in Williams v. Bridge & Iron Co., 111 Kan. 34, has ruled that an administrator without capacity can be exchanged for one with capacity who is appointed after the statute of limitations has run. Here, there has been even less than an exchange of one particular administrator for another; rather, a mere coloring in of the space within the outline of the previously-named defendant administrator. Moreover, Groenhagen is distinguishable because it involved a lawsuit dismissal and an attempt to utilize the savings statute, K.S.A. 60-518.
Accordingly, under the rationale of the Kansas-based cases previously cited, and particularly the rationale of Lovato in dealing with a mere “coloring in the originally-named party,” we hold that Vorhees’ suit was timely filed against the Administrator. See K.S.A. 60-203(a) (civil action is commenced at the time a petition is filed if service of process is obtained within 90 days, or 120 days if an extension is granted, after tire petition is filed).
This holding leaves us with the Administrator’s next argument to be addressed, i.e., whether a formal motion to amend under K.S.A. 60-215 was required to “color in between the lines.” As support the Administrator offers Kiefer v. Reynolds, No. 89,876, unpublished opinion filed May 7, 2004, and Back-Wenzel v. Williams, 279 Kan. 346, 109 P.3d 1194 (2005).
In Kiefer, the plaintiff sued a decedent. After expiration of the statute of limitations, the plaintiff learned of the defendant’s death. He obtained an order extending the time for service of process and an order appointing a special administrator for the estate. Thereafter, the administrator accepted service. The Court of Appeals held that the district court correctly dismissed the case because without a substitution or an amendment adding the administrator as a party with the capacity to be sued, the plaintiff was still attempting to sue a dead person. It stated that the plaintiff “could have (and should have), as a matter of course, filed an amended petition naming the special administrator as defendant. This would have allowed the amended petition to relate back to the timely filed original petition.” Slip op. at 2.
Keifer is distinguishable, however, because its plaintiff did not originally list tire estate administrator as a defendant, as here.
Back-Wenzel is also distinguishable. There, plaintiff sued a decedent. After the statute of limitations expired, plaintiff learned of the death; a special administrator was appointed and served. Thereafter, plaintiff attempted to substitute the special administrator for the decedent under K.S.A. 60-225. After the district court dismissed the suit, this court determined that the plaintiff could not substitute a party under K.S.A. 60-225 because this particular statute is not applicable when a party dies before commencement of an action. We did not reach the issue of whether an amendment under K.S.A. 60-215 was required. 279 Kan. at 353 (“Our affirmation of the district court on the basis of 60-225 renders moot any discussion about the 60-215 cases cited by the Court of Appeals.”).
In the instant case, the Court of Appeals looked to Anderson v. Estate of Peterson. There, as previously noted, the plaintiff filed a motion to amend under 60-215 to change the original defendant’s name from the Gordon Peterson Estate to “Daniel J. Sevart, Special Administrator of the Estate of Gordon L. Peterson, deceased” after appointment of the administrator. Slip op. at 3. However, the Anderson court did not address whether the motion was required. Implicit in the present Court of Appeals’ holding is a conclusion that a motion to amend was not required. Anderson is dissimilar because here no change in the defendant’s name is required; since the original filing, the listed defendant has been “Administrator of the Francisco J. Baltazar Estate.”
Because these exact circumstances apparently have not arisen in Kansas, we return to the Lovato decision for consideration of the Texas Supreme Court’s approach based upon Texas case law that is similar to Kansas’. Lovato held that no formal amendment was required to cure the defect in the originally named plaintiff s capacity:
“If, as we have held, a plaintiff s amended pleading alleging representative capacity satisfies the relation-back requirements, an original petition that alleges the correct capacity should suffice for limitations purposes, provided that capacity, if challenged, is established within a reasonable time. . . .
“In any event, it would be pointless to require that the plaintiff file an ‘amended’ pleading containing the same allegations of capacity as were stated in her original petition. The estate commenced the suit before limitations expired; Lovato cured tire defect in her capacity before the case was dismissed.” 171 S.W.3d at 853.
The court concluded: “Because Lovato’s original petition asserting her representative capacity was filed before the statute of limitations expired, the survival claim is not time-barred.” 171 S.W.3d at 853.
We agree with the Lovato court. The capacity of the defendant Administrator was essentially alleged in Vorhees’ original negligence petition, which was timely filed. Horak’s later appointment merely colored in the space within the outline of the originally-named, capacity-less defendant administrator.
It would be pointless to require an amended petition, particularly under the circumstances of this case which are even more favorable to the plaintiff than Lovato. In Lovato, while plaintiff sought appointment of an administrator within the statute of limitations, the defendant moved for summary judgment 17 months after the statute of limitations had run, and the plaintiff was not appointed administrator until approximately 3 weeks later. Here, like Lovato, plaintiff Vorhees timely filed his petition seeking appointment of the administrator, albeit the day before the statute of limitations ran. But, the administrator was appointed — and thereby given capacity to be sued — only 89 days after the statute of limitations ran; the Administrator was served 13 days later (thus meeting the K.S.A. 60-203[a] time requirement for commencing an action); and the dispositive motion was not filed until 31 days after that.
Although not significant to our analysis, we observe that the Baltazar estate is not in any way disadvantaged by this conclusion. The administrator was selected and appointed through Vorhees’ actions; an even later notice would have been given to an administrator who had been selected and actually appointed through Vorhees’ actions the day before the statute ran, but who was nevertheless timely served 120 days later.
Instead of requiring an amended pleading to relate back to the original petition, we hold that die Administrator’s post-limitations capacity cures the pre-limitations lack thereof. There is no need to formally change the name of the original defendant “Administrator of the Estate of Francisco J. Baltazar,” to “Steven Horak, Administrator of the Estate of Francisco J. Baltazar.” Cf. K.S.A. 60-102 (provisions of Code of Civil Procedure shall be liberally construed and administered to secure the just, speedy, and inexpensive determination of every action or proceeding); K.S.A. 60-209(a) (it is not necessary to aver the capacity of a party to be sued or the authority of a party to be sued in a representative capacity); K.S.A. 59-2201 (no defect in form of pleadings in probate proceeding shall impair substantial rights). Consequently, there is no resultant need to amend. Nor is there any need to attempt substitution as in Williams, because the party remains the same.
The dissent primarily argues that an amendment is mandatory in order to adequately inform the public of the actual parties to the litigation. Under our facts, the public’s informational needs are already well-met; so too are the informational needs of the parties and their counsel.
Steven Horak was appointed as administrator by a district court. The record on appeal reveals that the administrator’s Petition for Issuance of Letters of Administration, the court’s order appointing him, and his accompanying court-issued letters of administration were all filed of public record with the clerk of the district court. After Horak’s court appointment, he voluntarily came to the office of Vorhees’ counsel and voluntarily accepted a copy of the summons, the Vorhees petition, and other probate papers. Horak then voluntarily executed the “Return on Service of Summons,” which stated that as a “within named defendant” he “acknowledge[d] receipt of service of summons and petition in the above entitled case.” This Return — which bore Horak’s notarized signature on the line above the identifying phrase “Steven Horak, Administrator of Baltazar Estate” — was timely filed of public record with the clerk of tire district court in the Vorhees case file. Three weeks later Horak, who expressly identified himself as “the Defendant, Steven Horak, Administrator of the Estate of Francisco J. Baltazar,” filed his motion to dismiss the Vorhees suit as a matter of public record with the clerk of the district court.
Simply put, the only defendant of consequence has been the estate of Francisco J. Baltazar, which is sued through its administrator as representative simply because Baltazar himself is dead. See Egnatic v. Wollard, 156 Kan. 843, 856, 137 P.2d 188 (1943) (when a person dies, his or her individual capacity to respond in damages for his or her torts ceases; thereafter his financial obligations must be met by his or her estate); Ryan, 29 Kan. at 498-499 (absent an administrator or an executor, an estate lacks the capacity to be sued). Accordingly, the public’s interest, if any, in learning the particular name of the Francisco J. Baltazar estate representative pales in comparison to the public’s interest in learning that this particular estate is at some risk. Nevertheless, the dissent’s stated need — that there be a clear record of who are the parties to a lawsuit because “[i]t is important for purposes of res judicata, judgment enforcement, and public records” — is presently and adequately being met.
Issue 3: Service of process upon the Administrator was effective.
Finally, the Administrator argues that service of process was ineffective and void because the law clerk who served Horak was not a qualified process server under K.S.A. 60-303(d)(3). To the extent resolution of this issue requires statutory interpretation, this court exercises unlimited review. See Schmidtlien Electric, Inc., 278 Kan. at 819.
Although the district court did not specifically rule on this section of the Administrator’s motion to dismiss, it did grant the overall motion. The Court of Appeals concluded that because the Administrator acknowledged service on the summons, service was properly effected pursuant to K.S.A. 60-303(e). Vorhees v. Baltazar, slip op. at 10-11. K.S.A. 60-303(e) states: “An acknowledgment of service on the summons is equivalent to service.” (Emphasis added.)
The Administrator now argues that die Court of Appeals erred in relying on the acknowledgment of service. In support, he cites Hall v. Quivira Square Development Co., 9 Kan. App. 2d 243, 675 P.2d 931, rev. denied 235 Kan. 1041 (1984), for the proposition that there can be no acknowledgment of service diat was void ah initio.
Hall, however, does not support the Administrator’s broad assertion. There, die Court of Appeals addressed the procedure to obtain service out of state found in a previous version of K.S.A. 60- 308. The panel held that when out-of-state service is made by a process server not authorized to serve process out of state, the service is not effective. 9 Kan. App. 2d at 247. Hall, however, did not discuss acknowledgment of process under K.S.A. 60-303(e).
The facts in the present case are easily distinguishable from Hall. Here, service did not occur out of state. Additionally, the Administrator voluntarily went to Vorhees’ attorney’s office, where he was served with copies of the summons, petition, and other probate papers by a law clerk for Vorhees’ attorney. In the clerk’s presence, the Administrator executed the “Return on Service of Summons,” which acknowledged receipt of the summons and petition.
The Administrator also fails to discuss K.S.A. 60-303(e), which states:
“An acknowledgment of service on the summons is equivalent to service. The voluntary appearance by a defendant is equivalent to service as of the date of appearance.”
The plain language of the statute supports the panel’s opinion that process was effective. Pursuant to the statute, even when service is not properly effectuated, an acknowledgment serves as the equivalent of service.
The judgment of the Court of Appeals reversing the district court is affirmed. The judgment of the district court is reversed, and the case is remanded for further action consistent with this opinion.
Luckert, J., not participating.
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