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The opinion was delivered by
Luckert, J.:
Defendant Tiara Jones was convicted of one count of first-degree premeditated murder and one count of second-degree intentional murder. Jones now appeals, attacking his convictions because the trial court refused to: (1) suppress his inculpatory statements to law enforcement officers, (2) excuse a juror who reported contact with the defendant’s family during the trial, and (3) instruct on reckless second-degree murder. Jones also attacks his controlling hard 50 life sentence, arguing the hard 50 sentencing provisions are unconstitutional and the trial court erred in imposing the sentence. We reject his arguments and affirm his convictions and sentence.
Facts
On August 22, 2002, police found roommates Stephanie Childs and James Brown dead inside Childs’ apartment. Brown was lying on a bed, and his wrists and ankles were tied behind his back with an electrical cord. Both Childs and Brown had been shot in the head. Although Jones was interviewed during the initial investigation, he was not initially a prime suspect. In fact, the State prosecuted a former roommate of Childs, Dion Walker, for the murders. Walker’s case proceeded to trial in April 2003 with Walker maintaining his innocence.
A few days after Walker’s trial began, a biology technician at the Kansas Bureau of Investigation notified Kansas City, Kansas, Detective Greg Lawson that the DNA evidence on the electrical cord used to tie up Brown matched Jones’ DNA. The detective notified Walker’s defense counsel of the new evidence. Later that day, Walker’s defense counsel told Detective Lawson that he would be meeting with Jones to discuss Jones’ upcoming testimony in Walker’s trial. At that time, the detective planned to conduct a followup interview.
According to testimony at the suppression hearing, the district attorney’s office sent two investigators to Jones’ mother’s house, where they found Jones. Investigator Garrett testified that he showed Jones’ mother his badge and that they explained the need to take Jones down to the courthouse to go over his statement. The investigators told Jones he could drive himself and follow them to the courthouse or, if he did not have a vehicle, they would provide the transportation. Jones rode with them to the district attorney s office.
Upon his arrival at the district attorney’s office, Jones waited for a period of time in the reception area and was then led to the conference room where Detectives Lawson and William Lee Howard, Jr., explained that they wanted to “go over [Jones’] statement that he had provided earlier, the taped statement, and malee sure that everything was still the same as it was at the time [the officers] had talked to him originally.” The detectives told Jones that this meeting was voluntaiy, and they went over his initial statement line by .line. Jones was not Mirandized at this point. The detectives eventually informed Jones that his DNA was discovered on the electrical cord, and they needed to know if there was a logical explanation for its presence. Detective Lawson began asking Jones what items he might have used in the house or what areas he might have visited, knowing that Jones had professed to having had a sexual relationship with Childs. The detectives knew that the cord came off a bathtub spa in the bathroom, but they did not reveal that detail to Jones.
Jones had no explanation for tire presence of his DNA on the electrical cord. According to Lawson, he told Jones that, if there was something they needed to talk about, “this would be the time to do it before you testify” and “if you’re involved or whatever, we need to talk about this.” Jones then told the officers that he tied Brown up but did not shoot him. Detective Lawson testified that he stopped the interview, advised Jones that they were now talking to him as a suspect, told Jones he did not have to talk any further, and verbally advised Jones of his Miranda rights. Jones indicated that he wanted to talk and was adamant that he did not shoot Brown. Shortly thereafter, within approximately 30 minutes, Jones was placed in handcuffs and taken across the street to the police department.
Before being interrogated at the police department, Jones waived his Miranda rights by signing the waiver form. This statement was videotaped. Detective Lawson testified that the officers believed, based on the evidence, that there had been two perpetrators; thus, they wanted to know who was present with Jones at the crime scene. At the police department, Jones looked at some photographs and initially identified the shooter as a man who police knew had been killed some months prior to the incident involving the murders of Childs and Brown. When confronted with this fact, Jones gave another name as his accomplice.
After investigating this lead, the detectives determined this, too, was a false lead and, in fact, was a false name. Upon making this determination, officers brought Jones into the police department for a second videotaped interview. After again Mirandizing Jones, the officers confronted him with the results of their investigation. Eventually, Jones named Marcus Kyea as his accomplice. Kyea corroborated Jones’ statement that Jones and Kyea were the two perpetrators involved in the murders. According to Kyea, Jones was the shooter. Kyea took officers to the location where the murder weapon was hidden. Officers found the gun in a heavily wooded area near Kyea’s residence.
The case against Walker was subsequently dismissed and charges were brought against Jones. At trial, Kyea testified that Jones was having trouble with someone breaking into his apartment and asked Kyea to get him a gun. Kyea obtained a pump-action, “sawed-off’ shotgun. On the night of the incident, Jones and Kyea drove around, drinking beer and smoking marijuana. They returned briefly to Jones’ apartment and then walked down the street to Childs’ apartment. Jones knocked on the door, and Childs let the two men into her apartment, where Brown was sitting on the couch. According to Kyea, Childs and Jones began arguing when Childs denied knowing anything about the burglary of Jones’ apartment. Then, Childs said that Walker was involved.
Kyea testified that he gave the gun to Jones and called Walker on the telephone. Walker denied knowing anything about the burglary and hung up the phone. Jones also tried to call Walker, but Walker repeatedly hung up on him. This angered Jones, who threw and broke the phone. Jones then told everybody to go upstairs. Jones went into one bedroom with Childs, and Kyea went into another bedroom with Brown. About 5 to 10 minutes later, Jones came out with Childs and took Brown into one of the bedrooms. Kyea went into the bathroom with Childs and stood in the doorway while Childs sat crying in the bathtub. Kyea testified that he then heard the “pop” of a gunshot. Brown, “hog-tied” and lying on the bed, had been bound with an electrical cord and shot in tihe back of the head. He did not survive.
Upon hearing the gunshot, Kyea walked into the bedroom and Childs followed. Seeing Brown lying on the bed, Childs screamed and ran downstairs. Kyea testified that he and Jones followed, and Jones and Childs wrestled near the couch. Kyea saw Childs trying to block the gun with her hands as Kyea walked out the front door. Then, Kyea heard another gunshot. Childs received a fatal gunshot wound to her head. Jones proceeded to leave Childs’ apartment, and the two men escaped the scene.
Jones was convicted of the first-degree premeditated murder of Childs and the second-degree intentional murder of Brown. With respect to the first-degree murder conviction, the sentencing court found aggravating circumstances justifying the imposition of a hard 50 life sentence existed, in that more than one person was killed and the crime was particularly heinous or atrocious. In addition to the hard 50 life sentence, Jones received a sentence of 195 months for the second-degree murder conviction, to be served concurrent with the life sentence.
1. Motion to Suppress
First, Jones argues that the trial court erred in denying his motion to suppress the statements he made to law enforcement officers in the conference room of the Wyandotte County District Attorney’s office and all subsequent statements. Jones contends Detectives Lawson and Howard were conducting a custodial interrogation and did not give him Miranda warnings. In denying Jones’ motion to suppress, the trial court ruled that the detectives’ questioning at the district attorney’s office did not constitute a custodial interrogation.
During trial, Jones contemporaneously objected to the admission of the statements. Therefore, the issue is properly preserved for appeal. See State v. Holmes, 278 Kan. 603, 610, 102 P.3d 406 (2004).
Standard of Review
In reviewing the trial court’s denial of the defendant’s motion to suppress statements, this court determines, without reweighing the evidence, whether the facts underlying the 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). The same standard applies to the subset of these cases dealing with the question of whether a person is in custody at the time of an interrogation. State v. James, 276 Kan. 737, 751, 79 P.3d 169 (2003).
Substantial evidence is “evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. 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).
Custodial or Investigatory
The Fifth Amendment to the United States Constitution guarantees the right against self-incrimination, including the right to have a lawyer present during custodial interrogation and the right to remain silent. “[T]o reduce the risk of a coerced confession and to implement the Self-Incrimination Clause” (Chavez v. Martinez, 538 U.S. 760, 790, 155 L. Ed. 2d 984, 123 S. Ct. 1994 [2003] [Kennedy, J., concurring in part and dissenting in part]), the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 479, 16 L. Ed. 2d 694, 86 S. Ct. 1602 reh. denied 385 U.S. 890 (1966), concluded that States may not use statements stemming from a custodial interrogation of a defendant unless the State demonstrates the use of procedural safeguards to secure the defendant’s privilege against self-incrimination. However, police are not required to administer Miranda warnings to everyone whom they question. Oregon v. Mathiason, 429 U.S. 492, 495, 50 L. Ed. 2d 714, 97 S. Ct. 711 (1977). Rather, “Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him ‘in custody.’” Mathiason, 429 U.S. at 495.
The United States Supreme Court has determined that the question of whether the interrogation is custodial must be determined based on an objective standard of how a reasonable person in the suspect’s situation would perceive his or her circumstances. The use of the objective standard was clarified in Berkemer v. McCarty, 468 U.S. 420, 82 L. Ed. 2d 317, 104 S. Ct. 3138 (1984), which arose when a police officer stopped and questioned a suspected drunk driver and asked him some questions. The officer reached the decision to arrest the driver at the beginning of the traffic stop; he did not, however, indicate this to the driver and did not make the arrest until the driver failed a sobriety test and acknowledged that he had been drinking beer and smoking marijuana. The Court held the traffic stop noncustodial despite the officer’s intent to arrest because he had not communicated that intent to the driver. “A policeman’s unarticulated plan has no bearing on the question whether a suspect was ‘in custody’ at a particular time,” the Court explained. 468 U.S. at 442. “[T]he only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.” 468 U.S. at 442.
This analytical framework was confirmed in Stansbury v. California, 511 U.S. 318, 128 L. Ed. 2d 293, 114 S. Ct. 1526 (1994), when the Court explained that “the initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.” 511 U.S. at 323. Courts must examine “all of the circumstances surrounding the interrogation,” 511 U.S. at 322, and determine “how a reasonable person in the position of the individual being questioned would gauge the breadth of his or her ‘freedom of action.’” 511 U.S. at 325 (quoting Berkemer, 468 U.S. at 440).
In Thompson v. Keohane, 516 U.S. 99, 133 L. Ed. 2d 383, 116 S. Ct. 457 (1995), the Court summarized the custody test:
“Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circum stances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. Once the scene is set and the players’ lines and actions are reconstructed, the court must apply an objective test to resolve ‘the ultimate inquiry’: ‘[was] there a “formal arrest or restraint on freedom of movement” of the degree associated with a formal arrest.’ [Citation omitted].” 516 U.S. at 112 (quoting California v. Beheler, 463 U.S. 1121, 1125, 77 L. Ed. 2d 1275, 103 S. Ct. 3517 [1983]).
A similar analysis has been applied under § 10 of tire Kansas Constitution Bill of Rights, which provides the same guarantees as tire Fifth Amendment. State v. Ninci, 262 Kan. 21, 34, 936 P.2d 1364 (1997). Kansas courts have long recognized the distinction between custodial and investigatory interrogation. State v. Taylor, 234 Kan. 401, 405, 673 P.2d 1140 (1983). Custodial interrogation has been described as the questioning (or its functional equivalent) of persons by law enforcement officers, initiated and conducted while such persons are held in legal custody or are otherwise deprived of their freedom of action in any significant way. Investigatory interrogation is the questioning of persons by law enforcement officers in a routine manner in an investigation and where such persons are not in legal custody or deprived of their freedom of action in any significant way. State v. Price, 233 Kan. 706, 712, 664 P.2d 869 (1983); see State v. Jacques, 270 Kan. 173, 185-86, 14 P.3d 409 (2000).
Although this court has not been as explicit in stating that there are two discrete inquiries essential to the determination of whether an interrogation is custodial as was the United States Supreme Court in Thompson, Kansas courts have used the same framework. Thus, our first inquiry is: what were the circumstances surrounding the interrogation? Our standard of review for this prong on the inquiry is whether there is substantial competent evidence to support the trial court’s findings regarding the circumstances. The second inquiry is: under the totality of those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave? We review this determination de novo. See James, 276 Kan. at 749-50.
In State v. Deal, 271 Kan. 483, 23 P.3d 840 (2001), abrogated on other grounds State v. Anthony, 282 Kan. 201, 145 P.3d 1 (2006), this court set out the following factors to be considered in analyzing the circumstances of the interrogation:
“(1) when and where the interrogation occurred; (2) how long it lasted; (3) how many police officers were present; (4) what the officers and the defendant said and did; (5) the presence of actual physical restraint on the defendant or things equivalent to actual restraint such as drawn weapons or a guard stationed at the door; (6) whether the defendant is being questioned as a suspect or a witness; (7) how the defendant got to the place of questioning, that is, whether he came completely on his own in response to a police request or was escorted by police officers; and (8) what happened after the interrogation-whefherfhe defendant left freely, was detained, or was arrested. The importance of each factor varies from case to case. [Citation omitted.]” 271 Kan. at 497-98.
See State v. Fritschen, 247 Kan. 592, 603, 802 P.2d 558 (1990).
This court has never slavishly adhered to these factors in analyzing the issue of whether a particular interrogation is custodial. In fact, it has been stated that these are not “hard and fast factors.” Rather, “[e]ach case needs to be analyzed on its own facts. Factors present in one case will not be present in another. Further, listing factors, ‘one two three four five,’ implies that each factor bears equal weight. However, in differing cases, the importance of each factor varies.” Fritschen, 247 Kan. at 603. This said, these factors and any others relevant under the circumstances of the case aid in the consideration of the first step of analysis, i.e., determining the circumstances of the interrogation.
In this case, Jones does not contend that the trial court made erroneous findings of fact, that substantial competent evidence does not support the findings regarding the circumstances, or that the findings of fact were insufficient. In fact, the facts stated above are not disputed. Rather, the defendant disputes the conclusion implied by the trial court’s finding that the interrogation was not custodial, i.e., that a reasonable person under those circumstances would have felt at liberty to terminate the interrogation and leave.
In support of his position that a reasonable person would have felt restrained, Jones relies heavily on the fact he was under subpoena to testily. In support, Jones cites State v. Cathey, 241 Kan. 715, 741 P.2d 738 (1987), disapproved on other grounds State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006). In Cathey, this court determined that Miranda warnings were not required to admit statements given by a witness at an inquisition pursuant to K.S.A. 22-3101, where die witness’ presence was compelled under the subpoena power. 241 Kan. at 721-22. The Cathey court noted that statutoiy safeguards provided by K.S.A. 22-3104 (right to counsel and right not to make incriminating statement) were adequate to protect an inquisition witness’ constitutional rights. Jones argues that such statutory safeguards are similar to Miranda warnings, which were not given to Jones before the officers spoke to him in the district attorney’s conference room. Jones’ reliance on Cathey is not persuasive, however, because the present case in no way deals with inquisitions or die rights of inquisition witnesses.
Despite this, there is some merit to Jones’ contention that someone under subpoena might feel his or her liberty was restrained. Although from a technical standpoint a witness would have no obligation to participate in witness preparation because of being under subpoena to testify, it is understandable that a reasonable person who was not familiar with subpoenas might not understand this distinction. This perception could also be influenced by the fact that the two investigators in the district attorney’s office who drove Jones to die interview handed him over to police detectives for the interview. A final factor weighing in favor of concluding that a reasonable person would feel restrained is the fact that Jones was arrested immediately after the interview.
However, these factors must be considered in light of the totality of the circumstances, including those factors that do not suggest the interview was custodial. In this case, there are several. James, 276 Kan. at 751. First, regarding the subpoena, there is no evidence tire officers used the subpoena as a threat or mentioned it to imply Jones must go to the district attorney’s office. In fact, Detective Lawson testified at the suppression hearing drat he had no knowledge the subpoena had been served on Jones. Furthermore, there was no actual restraint.
Significantly, dre detectives told Jones that the interview was voluntary, and Jones told the detectives that he came to the district attorney’s office voluntarily. The detectives never told Jones he was a suspect, that he was in custody, or that he was under arrest until after Jones volunteered incriminating information. In fact, the circumstances of a trial being under way against another suspect would have caused a reasonable person to believe they would be allowed to leave and were being interviewed only to prepare to testify.
Jones was merely a witness at that point. The officers went over Jones’ entire initial statement with Jones and then, recognizing there could be a plausible explanation for Jones’ DNA being present on the electrical cord, told Jones about the discovery of his DNA on the cord. Having given no explanation for the presence of his DNA on this item, Detective Lawson told Jones that, if there was something they needed to talk about, “this would be the time to do it” before Jones testified in Walker’s case. Again, the focus at that point was upon preparation for trial and the potential cross-examination by the defense regarding the DNA.
Jones asserts that, once the detectives learned that Jones’ DNA was found on the electrical cord, he became a “suspect” instead of a “witness,” regardless of die fact that there might have been some plausible explanation for the presence of his DNA on the cord. In his appellate brief, Jones states: “It is difficult to believe that the officers, knowing that Mr. Jones’ DNA was found on the cord and having excluded any legitimate explanation for its presence, would have let Mr. Jones walk out the door.”
However, being a suspect does not make an interrogation custodial. This conclusion was reached in Beckwith v. United States, 425 U.S. 341, 48 L. Ed. 2d 1, 96 S. Ct. 1612 (1976), wherein the Court concluded that the failure to give Miranda warnings did not render inadmissible statements made by the defendant to Internal Revenue Service agents during a noncustodial interview. The petitioner argued he should have been advised of his rights under Miranda because his tax liability was under scrutiny and he was under investigation. The Court concluded this argument ignored completely that Miranda was grounded squarely in the Court’s explicit and detailed assessment of in-custody interrogations and that the holding was a narrow one — the admissibility of statements obtained from individuals subjected to custodial police interrogations. 425 U.S. at 346. Extension of the Miranda requirements to every case where a defendant was a suspect “would cut (die) Court’s holding in that case completely loose from its own explicitly stated rationale.” 425 U.S. at 345. Rather, the Court concluded, an interview is not custodial
“simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him ‘in custody.’ It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited.” Oregon v. Mathiason, 429 U.S. at 495.
In weighing these various circumstances, parallels can be drawn to the circumstances in State v. Ninci, 262 Kan. 21, 936 P.2d 1364 (1997), where this court upheld the trial court’s finding that the first hour of the defendant’s interview was noncustodial. In Ninci, two officers interrogated the defendant in an interview room at the police station. The entire interview lasted approximately 3 and Vz hours, but the un-Mirandized portion of the interview only lasted 1 hour. Although two police officers were present, each one left the room several times for various reasons. The discussion between the officers and Ninci during the first hour of the interview was amiable. As noted by the Ninci court, the officers asked Ninci if he had any plans for the remainder of the evening, which indicated that the interview could have been postponed to a more convenient time for him, if necessary. 262 Kan. at 37.
In addition, while the officers stated that they were trying to clear Ninci as a “suspect” and that they would “cut [him] loose” later in the evening, they also thanked Ninci for voluntarily coming in and helping them with the investigation. At one point, the officers provided Ninci with a beverage at his request and asked him if he wanted cake. Ninci was not physically restrained in any way. This court observed that the police obviously wanted to question Ninci as a potential suspect but that the officers testified they also wanted to talk to Ninci to find out more about another person whose car was seen at the victim’s house the same week as the murder. Ninci voluntarily came to the police station in his own car in response to a police request. 262 Kan. at 37.
One of the officers asked for Ninci’s driver s license at the beginning of the interview and did not immediately give the license back to Ninci. However, a few minutes into the interview, the officer placed the license on the table within Ninci’s reach. When Ninci asked to have his license back after an hour had passed, the officer readily handed it back to him. When the interview ended, Ninci was arrested because he had admitted to being involved in the victim’s murder. 262 Kan. at 37.
This court held there was substantial evidence to support the trial court’s findings. Concluding that a reasonable person would have felt free to leave under the same circumstances, at least up until the time Ninci started confessing to the crime, the court held that Ninci was not in custody during the first hour of the police interrogation, and this first hour of the interview constituted only an investigatory interrogation, not a custodial interrogation. Thus, the officers’ failure to provide Ninci with Miranda warnings during the first hour of the interview did not require the suppression of his statements taken during that time period. 262 Kan. at 38 (citing State v. Haddock, 257 Kan. 964, 897 P.2d 152 [1995], abrogated on other grounds by State v. James, 276 Kan. 737, 79 P.3d 169 [2003]; State v. Fritschen, 247 Kan. 592, 802 P.2d 558 [1990]; State v. Jones, 246 Kan. 214, 787 P.2d 726 [1990]); see also State v. Jacques, 270 Kan. 173 (first interview at police station was noncustodial; defendant was free to go, interview took place in interrogation room, officers drove defendant to police station, defendant left freely after interview, interview lasted about 2 and 1/2 hours, and officers testified that Jacques was not suspect when interviewed the first time and that he was merely being questioned as possible witness); State v. Heath, 264 Kan. 557, 957 P.2d 449 (1998) (no custodial interrogation where defendant went voluntarily to police station to be interviewed and waited unrestrained in waiting room prior to interview); State v. Gooden, 22 Kan. App. 2d 271, 915 P.2d 169, rev. denied 260 Kan. 998 (1996) (investigating officer questioned defendant in defendant’s home, officer refused to allow defendant to go outside, officer ordered defendant to sit down when he got up, and officer pulled a weapon; interview was not custodial but consensual).
Similarly, in one of the more recent applications of Miranda by the United States Supreme Court, the Court noted as important factors the voluntariness of the witness’ presence, the focus upon another suspect, and the lack of coercive threats or suggestions. Yarborough v. Alvarado, 541 U.S. 652, 158 L. Ed. 2d 938, 124 S. Ct. 2140 (2004), involved the Court’s review of a state court determination that a interview was not custodial. The Supreme Court noted there were “objective facts [that] are consistent with an interrogation environment in which a reasonable person would have felt free to terminate the interview and leave,” 541 U.S. at 664-65, including: the police did not transport the 17-year-old suspect to the station or require him to appear at a particular time; the police did not threaten the suspect or suggest he would be placed under arrest; the suspect’s parents remained in the lobby during the interview, suggesting that the interview would be brief; the suspect and his parents were told the interview was not going to be long; during die interview, the police focused upon another person’s activities rather than the suspect’s; the police did not pressure the suspect with the threat of arrest and prosecution; the suspect was offered a break; and, at the end of the interview, the suspect went home. However, the Court also noted: “Other facts point in the opposite direction.” 541 U.S. at 665. Those facts included: the interview occurred at the police station, the interview lasted 2 hours; the suspect was not told he was free to leave; the suspect was brought to the station by his legal guardians, making the extent of his control over his ability to leave unclear; and his guardians were not allowed at the interview. After listing the factors on each side and discussing its standard of review in a habeas corpus case, the Court concluded: “These differing indications lead us to hold that the state court’s application of our custody standard was reasonable. . . . The custody test is general, and the state court’s application of our law fits within the matrix of our prior decisions.” 541 U.S. at 665.
In this case, although there is evidence consistent with factors supporting the conclusion that a reasonable person would not feel free to leave, there is also substantial competent evidence consistent with factors supporting the conclusion that a reasonable per son would feel free to leave the interrogation. Thus, the trial court’s determination that the interview was noncustodial fits within the matrix of decisions of the United States Supreme Court and this court.
Our de novo review of the circumstances leads us to conclude a reasonable person in the same circumstances as Jones would have felt free to leave. Walker remained the focus of the investigation and, in fact, was on trial. The police believed there could be a noncriminal, plausible explanation for the presence of the DNA and, as such, handled the interview as preparation for trial, conducting it at the district attorney’s office and reviewing Jones’ previous statement. Jones was told the interview was voluntary, he was never physically restrained, nor was he threatened.
As a matter of law, based upon the evidence before the trial court, we conclude the interview merely constituted an investigatory interrogation, not a custodial interrogation. There was no requirement for Miranda warnings to be issued. The trial court did not err by denying Jones’ motion to suppress his pre-Miranda statements.
Missouri v. Seibert
Jones further argues that, although the officers immediately informed Jones of his Miranda rights upon hearing his incriminating statement, those subsequent warnings failed to remove the “taint” of the pre-Miranda statements with respect to his post-Miranda statements. To support this argument, Jones cites the recent case of Missouri v. Seibert, 542 U.S. 600, 159 L. Ed. 2d 643, 124 S. Ct. 2601 (2004). In Seibert, the Court condemned a two-step interrogation technique in which police deliberately failed to provide Miranda warnings in the hope that the suspect’s unwarned statements would cause her to give more information in a later interview conducted after Miranda warnings were given. 542 U.S. at 609-10, 617. Officers had intentionally violated Miranda by questioning Seibert at the police station about a murder without first advising her of her rights. 542 U.S. at 604-05. After Seibert made an incriminating statement, the police gave her a 20-minute coffee break. When the interrogation resumed, they advised her of her Miranda rights and obtained her waiver of them. An officer then confronted Seibert with her earlier admission and elicited a confession that was used to convict her. The Court held that the question-first technique undercuts Miranda’s goal of reducing the chances of admitting a coerced confession, and under the facts, the warnings were unlikely to serve their intended purpose. The Court, therefore, concluded the postwarning statements were inadmissible. 542 U.S. at 617.
The Seibert Court distinguished its earlier decision in Oregon v. Elstad, 470 U.S. 298, 84 L. Ed. 2d 222, 105 S. Ct. 1285 (1985), which held a suspect who has answered inadvertently unwarned, uncoercive questions may validly waive his rights and provide an admissible statement after being warned. In Elstad, the defendant had made an initial statement in his home, was taken to the police station, given Miranda warnings, and then admitted his involvement in a crime. 470 U.S. at 301. In contrasting between Elstad and the situation in Seibert, the Seibert Court listed several facts that bear on whether Miranda warnings delivered midquestioning can be effective in assuring that a statement is voluntary: “the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first.” Seibert, 542 U.S. at 615. Because a reasonable person in Elstad’s position could have seen the police station questioning as a new and distinct experience from the earlier, unwarned questioning in his home, the station house Miranda warnings could have been viewed “as presenting a genuine choice whether to follow up on the earlier admission.” 542 U.S. at 615-16.
In the present case, Seibert is distinguishable in that Jones was not in police custody at the time that the detectives questioned him in the conference room. Regardless, even if Seibert applied, there would be no reason to find Jones’ post-Miranda statements inadmissible. Although the same officers conducted the post-Miranda interrogations of Jones, those interrogations were conducted at the police station, i.e., a different location than the initial ques tioning. At the station, Jones was aware that he was now being questioned as a suspect. The questions became more detailed in that the officers wanted to know the identity of Jones’ accomplice and the details of the crimes. A reasonable person could have seen the police station questioning as a new and distinct experience from the earlier questioning in the conference room at the district attorney’s office.
We conclude the trial court did not err in admitting either Jones’ pre-or post-Miranda statements to police made after the trial against another suspect had begun.
2. Failure to Excuse a Juror
Next, Jones argues the trial court erred in failing to excuse a particular juror, who will be referred to as Juror J., and substitute an alternate juror due to Juror J.’s alleged “fear” of the defendant’s family. This contention lacks merit.
Standard of Review
K.S.A. 2005 Supp. 22-3412(c) provides that a trial court may impanel alternate jurors in the event that “in the judge’s discretion, the judge believes it advisable to have such jurors available to replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable to perform their duties.”
Consistent with the language of the statute, tire trial court’s decision whether to substitute one juror with an alternate is reviewed for abuse of discretion. State v. Minski, 252 Kan. 806, 814, 850 P.2d 809 (1993). “The defendant has a burden of showing substantial prejudice before an appellate court will find an abuse of discretion by the trial court.” State v. Stallings, 246 Kan. 642, 646, 792 P.2d 1013 (1990).
Factual Background
Initially, there were two alternate jurors in this case. On the first day of trial, the court admonished the jury regarding reporting any problems that needed to be brought to the court’s attention. On the second day of trial, Juror J. informed the bailiff that someone from the defendant’s family approached her and attempted to talk to her. When brought to the trial court’s attention, the judge asked the juror on the record, out of the presence of the other jurors, what happened. Juror J. indicated that when she returned from the lunch break, “a few guys were sitting outside and they just land of stared me down, stuff like that.” During another break, the young men asked the juror her name. Juror J. told the judge that she felt “uncomfortable with that.”
The trial judge asked defense counsel to speak to the young men about refraining from this type of conduct. Defense counsel advised tire court that he spoke to the defendant’s family and told them not to have any contact with any of the jurors. The trial judge asked counsel if there was anything else they wanted to say. Counsel replied that there was not. The trial judge concluded the hearing by stating: “Well, let’s hope [that] takes care of it,” and the trial was adjourned for the day.
The next day, before commencing the trial, attorney Jerome Gorman, who was an assistant district attorney at that time and was not assigned to Jones’ case, informed the court that he had spoken with Juror J.’s father, who was a friend of his. Gorman, initially not knowing that the trial court had already dealt with the matter, had suggested that Juror J. give him a call. Before the juror called him, Gorman spoke with the prosecutor in Jones’ case and determined it would be best if Gorman did not speak with the juror. Therefore, when Juror J. called him, Gorman merely spoke to her for about 30 seconds, telling her that she should follow the trial court’s instructions.
After discussing with the court concerns about possible bias, defense counsel requested that the trial court excuse Juror J. from service. The trial court denied Jones’ request, finding that the situation was handled appropriately the previous afternoon. The court essentially sensed that the juror completely followed the court’s admonition by informing the court regarding the young men’s behavior. The court found that the juror had not been compromised and that she would be fair and impartial.
Jones compares the trial court’s refusal to excuse Juror J. with the court’s decision to excuse Juror M., another juror in this case. After sitting through the first afternoon of testimony at the trial, Juror M. realized that she knew the defendant’s mother from work. She reported to the bailiff that it would be difficult for her to continue serving on the jury, particularly if a guilty verdict was reached. The trial court questioned Juror M. on the record, out of the presence of the other jurors, about the purported personal difficulty. She explained to the court: “Like maybe after the trial’s over if I see her, you know, if he’s convicted, she might look at me like she was one of the jurors, you know, that was on the trial of my son and I don’t want to be put in that position. Because after the trial, you know, I have to get on with my life.” Juror M. expressed concern about personal distress. However, the trial judge asked if Juror M. could be fair and impartial, and she answered in the affirmative. After, hearing her testimony, over the defendant’s objection, the court excused Juror M. under the circumstances.
Analysis
The situations involving Juror M. and Juror J. are completely unrelated. Jones correctly observes that this court has acknowledged that the trial court may substitute a juror for reasonable cause. State v. Haislip, 237 Kan. 461, 469, 701 P.2d 909 (1985). Jones argues that reasonable cause existed in this case because of Juror J.’s feeling uncomfortable or afraid after being approached by the defendant’s family members. According to the transcript, however, the juror never told the trial court that she was afraid.
Jones contends that this situation is similar to United States v. Davis, 177 F.3d 552 (6th Cir. 1999), where an alternate juror reported that he felt intimidated. The juror reported to the court he was a businessman who had done business with some of the defendants, witnesses, and their families. He informed the court he feared for his own safety and that of his business. The juror admitted that he had conveyed these fears to other jurors. The trial court dismissed the alternate juror but did not investigate whether any of the sitting jurors were biased by the situation. 177 F.3d at 556.
The Sixth Circuit Court of Appeals observed that where “a colorable claim of extraneous influence has been raised, ... a ‘Remmer hearing’ must be held to afford the defendant an opportunity to establish actual bias.” 177 F.3d at 557 (citing Remmer v. United States, 347 U.S. 227, 98 L. Ed. 654, 74 S. Ct. 450 [1954]). Because the trial court failed to hold a hearing to inquire about any bias felt by the remaining jurors, the federal appellate court reversed the defendant’s conviction and remanded for a new trial, noting that the failure to conduct a hearing is an abuse of discretion. 177 F.3d at 557.
Jones argues that the same situation exists here and that Juror J. should have been specifically questioned about any bias. This is not persuasive. Here, an inquiry was made of the juror. The trial court questioned Juror J. about the reported contact between her and the defendant’s family. The court acknowledged that the juror was 18 years old and “was trying to do the' right thing.” Initially, the court asked the juror whether it was correct that she reported essentially feeling intimidated by tiróse individuals, and Juror J. said, “Yes.” This led to the court’s further questioning her about what happened. The defendant did not object to the questions asked or seek to ask additional questions.
The next morning, the trial court heard arguments by counsel regarding the situation. The defendant asked for the juror’s removal but did not ask for an additional hearing. The prosecutor noted that it had not been established that the juror was biased because of the contact.
As the court held in Davis, “the defendant bears the burden of proving actual juror bias, and no presumption of prejudice arises merely from the fact that improper contact occurred.” 177 F.3d at 557. The Davis court cited case law relying upon the United State Supreme Court’s decision in Smith v. Phillips, 455 U.S. 209, 71 L. Ed. 2d 78, 102 S. Ct. 940 (1982), in which the Court stated:
“[D]ue process does not require a new trial every time a juror has been placed in a potentially compromising situation. Were that the rule, few trials would be constitutionally acceptable. The safeguards of juror impartiality, such as voir dire and protective instruction from the trial judge, are not infallible; it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote. Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen.” 455 U.S. at 217.
In this case, the trial court did determine the effect of the contact, concluding:
“I did not feel any sense from talking to [the juror] yesterday or observing her demeanor or anything of that nature that she felt intimidated, although I probably have used that word. I think that she was just trying to say this has happened, somebody in authority needs to know what has happened and I’m trying to do the right thing.”
The trial court noted that Juror J. used the word “uncomfortable.” In concluding the hearing, the trial judge stated: “[M]y sense at this point is that she’s not been compromised and that she could still be a fair and impartial juror.” In addition, it appears that there was no further contact between the young men and Juror J.
There was no evidence that Juror J. was unable to reach a decision or that she could not be fair and impartial. Further, Jones fails to show, or even to argue, that he was prejudiced by the trial court’s decision to allow Juror J. to serve on the jury. The defendant did not meet his burden of establishing substantial prejudice, and there is no reason to conclude that the trial court abused its discretion.
3. Jury Instruction Regarding Reckless Second-Degree Murder
Jones next contends that the trial court erred in refusing to instruct the jury regarding unintentional but recldess second-degree murder, a lesser included offense of first-degree premeditated murder, as the crime related to the death of Stephanie Childs. This contention lacks merit.
At the jury instructions conference, Jones requested an instruction on the lesser included offense. The district court agreed to give the reckless second-degree murder instruction for the crime related to the death of James Brown but refused to give the instruction in relation to the death of Childs.
Our standard of review of a refusal to instruct on a lesser included offense is well established. A trial court must instruct the juiy on a lesser included offense “where there is some evidence which would reasonably justify a conviction” of the lesser offense. K.S.A. 2005 Supp. 22-3414(3). “If the defendant requests the instructions, the trial court has a duty to instruct the jury regarding all lesser included crimes that are established by the evidence, regardless of whether the evidence is weak or inconclusive.” State v. Hoge, 276 Kan. 801, 805, 80 P.3d 52 (2003). On review, this court views the evidence in the light most favorable to the defendant. State v. Jones, 279 Kan. 395, 109 P.3d 1158 (2005). An instruction on a lesser included offense is not required if tire jury could not reasonably convict the defendant of the lesser included offense based on the evidence presented. Hoge, 276 Kan. at 805.
To prove reckless second-degree murder, the State must show that a human being was killed “unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life.” K.S.A. 2005 Supp. 21-3402(b).
The trial court in the present case instructed the jury on voluntary intoxication as a defense to the charges of first-degree premeditated murder and second-degree intentional murder. The instruction, congruent with PIK Crim. 3d 54.12-A, stated:
“Voluntary intoxication may be a defense to the charges of Murder in the First Degree — Premeditated where the evidence indicates that such intoxication impaired a defendant’s mental faculties to the extent that he was incapable of forming the necessary intent, to-wit: the intentional and premeditated killing of Stephanie Childs as alleged in Count I and the intentional and premeditated telling of James Brown as alleged in Count II.
“Voluntary intoxication may be a defense to the lesser included charges of Murder in the Second Degree — Intentional where the evidence indicates that such intoxication impaired a defendant’s mental faculties to the extent that he was incapable of forming the necessary intent, to-wit: the intentional killing of Stephanie Childs as alleged in Count I and the intentional killing of James Brown as alleged in Count II.”
Jones argues that, in light of the fact that the trial court gave the voluntary intoxication instruction, the court should also have instructed die jury regarding reckless second-degree murder as to the death of Childs. Jones contends that if the jury had believed he was so intoxicated that he could not form the specific intent to kill Childs, only a general intent would have remained. He argues that, under those circumstances, the highest level of homicide of which he could have been convicted would have been unintentional or reckless second-degree murder.
Although voluntary intoxication is not a defense to general intent crimes, a voluntary intoxication defense may be used to negate the intent element of specific intent crimes. State v. Sterling, 235 Kan. 526, 528, 680 P.2d 301 (1984); see also K.S.A. 21-3208(2) (intoxication); State v. Ludlow, 256 Kan. 139, 144-45, 883 P.2d 1144 (1994). This court has indicated, however, that even when it is appropriate to give a voluntary intoxication instruction in a prosecution for first-degree premeditated murder or second-degree intentional murder, evidence of voluntary intoxication alone does not justify an instruction on unintentional but reckless second-degree murder.
In State v. Drennan, 278 Kan. 704, 101 P.3d 1218 (2004), the defendant was convicted of the first-degree murder of his girlfriend. In addition to giving a first-degree murder instruction, the trial court instructed the jury regarding voluntary intoxication. One of the defendant’s arguments on appeal was that the trial court erred in failing to give an instruction on the lesser offense of reckless second-degree murder. 278 Kan. at 711. The defendant asserted that the jury could have found that he recklessly choked the victim by attempting to restrain her in a too aggressive manner and by keeping her in a “choke hold” too forcefully and too long. 278 Kan. at 715.
This court disagreed, noting that the defendant’s argument ignored crucial facts that pointed to intentional rather than reckless behavior. The Drennan court also quoted the following from State v. Jones, 267 Kan. 627, 984 P.2d 132 (1999), concerning the issue of forming the intent to kill:
“ “What Jones’ argument does not taire into account is that an intoxicated defendant’s being incapable of forming the intent to kill does not transform his or her conduct into conduct so reckless in the circumstances as to manifest extreme indifference to the value of human life. In other words, intoxication can eliminate intent to kill so that the killing is unintentional under tire law, but it may not supply the extreme recklessness element of unintentional second-degree murder. Thus, evidence of voluntary intoxication alone will not justify an instruction on reckless second-degree murder as a lesser offense of premeditated first-degree murder.’ ” Drennan, 278 Kan. at 715 (quoting Jones, 267 Kan. at 634).
In Drennan, the victim was found with an electrical cord around her neck, and her fingers were bruised from trying to pull the cord away from her neck. The victim was placed in a “choke hold” with such force that the hyoid bone was broken and neck muscles hemorrhaged. She was choked for at least 4 minutes, and blood and oxygen were cut off to the brain. As in Jones, the Drennan court held the trial court did not err in refusing to give instructions based upon reckless rather than intentional behavior. 278 Kan. at 716; see also Jones, 267 Kan. at 633 (concluding that Jones’ statement that he did not intend to kill the victim was “insubstantial and insufficient” to support theory of reckless second-degree murder when “Jones used his hands to grip her neck hard enough to break pliable bone . . . and long enough — 4 to 6 minutes — to fatally deprive her of oxygen.”); accord State v. Cavaness, 278 Kan. 469, 474, 101 P.3d 717 (2004) (voluntary intoxication instruction; no evidence of recklessness; defendant’s testimony at most established that victim’s death was an unintended consequence of his intentional act of striking victim with baseball bat); State v. Bailey, 263 Kan. 685, 691, 952 P.2d 1289 (1998) (“[A] defendant’s actions in pointing a gun at someone and pulling the trigger are intentional rather than reckless even if the defendant did not intend to ldll the victim.”), abrogated on other grounds by State v. Meeks, 277 Kan. 609, 88 P.3d 789 (2004); State v. Pierce, 260 Kan. 859, 867, 927 P.2d 929 (1996) (no evidence of recklessness; at best the evidence on behalf of defendant suggested he did not intend to kill victim but only defended himself by intentionally shooting victim in leg).
The State argues that there was no evidence to support a reckless second-degree murder instruction with respect to the death of Childs. We agree. After Brown was hog-tied to the bed and shot, Childs ran screaming down the stairs. Jones went after Childs, caught up with her, and wrestled with Childs in the living room. The weapon that was used in this case was a pump-action shotgun that had to be pumped before each shot could be fired. Forensic evidence showed that Childs was shot in the head and that the barrel of the shotgun was located within 1 foot of her head. The evidence pertaining to Childs’ death pointed to intentional, not reckless, conduct on the part of Jones. The trial court did not err in refusing to instruct the jury on reckless second-degree murder.
4. Constitutionality of Hard 50
Next, Jones contends the hard 50 sentencing scheme is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Jones takes issue with the fact that, under the Kansas scheme, a jury does not determine the facts that increase the penalty beyond a reasonable doubt. The defendant’s contention has no merit.
Jones’ arguments have been repeatedly rejected by this court, most recendy in State v. Reed, 282 Kan. 272, 144 P.3d 677 (2006); State v. Kirtdoll, 281 Kan. 1138, 136 P.3d 417 (2006); and State v. Lawrence, 281 Kan. 1081, 135 P.3d 1211 (2006). Jones cites no new case law and offers no new arguments. There is no reason to stray from Kansas precedent. Jones’ sentencing scheme argument fails.
5. Imposition of Hard 50 Sentence
Finally, Jones contends that the trial court erred by imposing a hard 50 sentence on his first-degree premeditated murder conviction. He argues that the trial court erred by (1) finding that the crime was committed in a “particularly heinous or atrocious” manner and (2) failing to make any findings on the record regarding the mitigating factors presented by defense counsel at sentencing. Jones’ arguments lack merit.
Heinous, Atrocious, or Cruel Manner
Jones contends that his hard 50 life sentence must be vacated because there is insufficient evidence to support the trial court’s finding that Childs’ murder was committed in an especially heinous, atrocious, or cruel manner.
Our standard of review is well known:
“ When a defendant challenges the sufficiency of evidence for establishing the existence of an aggravating circumstance in a hard 50 sentencing proceeding, the standard of review is whether, after a review of all the evidence, viewed in the light most favorable to the prosecution, a rational factfinder could have found the existence of the aggravating circumstance by a preponderance of the evidence.’ State v. Buehler-May, 279 Kan. 371, Syl. ¶ 12, 110 P.3d 425 (2005).” State v. Washington, 280 Kan. 565, 568, 123 P.3d 1265 (2005).
At the sentencing hearing, the trial court found the existence of two aggravating factors associated with Jones’ first-degree premeditation conviction. The court stated:
“Number one is that the actions of the defendant here created a risk of death to more than one person, two . . . persons exactly. And, in fact, two people were . . . lulled on this particular incident.
“In addition to that, the Court does find that dais particular lulling was particularly heinous in the sense that Ms. Childs had to have known for a period of time, I don’t know exactly how long that period of time would have been, but she had to have known that she was going to be lulled based upon the events that had taken place in the house, the fact that Mr. Brown was tied up and then shot in the head, and then the chase through the house and where she was ultimately apprehended and lulled so that there was, in fact, a period of time where she knew what her fate was going to be, and the Court finds that ... is particularly heinous or atrocious.”
K.S.A. 2005 Supp. 21-4635(b) provides that, when a defendant is convicted of first-degree premeditated murder for a crime committed after July 1, 1999, the court shall determine whether the defendant shall be required to serve a mandatory hard 50 term. In making such a determination, if the trial court finds that one or more aggravating circumstances exist and are not outweighed by any mitigating factors that exist, the court must impose the hard 50 sentence. K.S.A. 2005 Supp. 21-4635(d).
K.S.A. 2005 Supp. 21-4636(f) describes the relevant aggravating circumstance as follows:
“(f) The defendant committed the crime in an especially heinous, atrocious or cruel manner. A finding that the victim was aware of such victim’s fate or had conscious pain and suffering as a result of die physical trauma that resulted in the victim’s death is not necessary to find that the manner in which the defendant killed tire victim was especially heinous, atrocious or cruel. In making a determination that die crime was committed in an especially heinous, atrocious or cruel manner, any of die following conduct by the defendant may be considered sufficient:
“(1) Prior stalking of or criminal threats to the victim;
“(2) preparation or planning, indicating an intention that the lulling was meant to be especially heinous, atrocious or cruel;
“(3) infliction of mental anguish or physical abuse before die victim’s deatii;
“(4) torture of the victim;
“(5) continuous acts of violence begun before or continuing after the killing;
“(6) desecration of the victim’s body in a manner indicating a particular depravity of mind, either during or following the killing; or
“(7) any other conduct in the opinion of the court that is especially heinous, atrocious or cruel.”
Jones argues that the evidence in this case does not support a finding that any of the first six factors were present and that no exceptional circumstances exist to support die remaining factor, i.e., “any other conduct in the opinion of the court that is especially heinous, atrocious or cruel.” The State responds that evidence supported both the third factor, i.e., “infliction of mental anguish or physical abuse before the victim’s death,” and the fifth factor, i.e., “continuous acts of violence begun before or continuing after the killing.”
This court recently reiterated in State v. Baker, 281 Kan. 997, 1019, 135 P.3d 1098 (2006), that “[standing alone, the fact that the victim was tolled by gunshots fired by the defendant is generally not sufficient to support a finding that the manner of death was especially heinous, atrocious, or cruel.” In Baker, this court vacated the defendant’s hard 50 sentence where the trial court found the victim’s murder was committed in an especially heinous, atrocious, or cruel manner pursuant to K.S.A. 2005 Supp. 21-4636(f)(7). 281 Kan. at 1018. The victim, a paraplegic, was shot in the head, but there was no evidence that the victim was terrorized or knew he was going to die prior to being shot. The trial court erroneously focused on the victim’s defenselessness alone. See also, e.g., State v. Holmes, 278 Kan. 603, 608, 638-39, 102 P.3d 406 (2004) (reversing hard 40 sentence because firing a single shot through victim’s heart was not especially heinous, atrocious, or cruel); State v. Cook, 259 Kan. 370, 401-03, 913 P.2d 97 (1996) (reversing hard 40 sentence because defendant’s act of shooting victim twice was not especially heinous, atrocious, or cruel); State v. Reed, 256 Kan. 547, 562-63, 886 P.2d 854 (1994) (concluding that shooting victim in the head was not especially heinous, atrocious, or cruel and other testimony supporting the finding amounted to conjecture and speculation, but upholding hard 40 sentence based on another aggravating factor).
Jones argues that this case is similar to State v. Flournoy, 272 Kan. 784, 36 P.3d 273 (2001). There, the defendant walked into the living room with a gun and shot his grandmother, despite his girlfriend telling him, “[D]on’t do that, put that up.” The girlfriend then ran into the kitchen and told the defendant to stop. Flournoy said, “I have to put her out of her misery,” and fired again. A forensic pathologist testified that the victim suffered five gunshot wounds, all of which most likely occurred in less than 1 minute. 272 Kan. at 794. Observing that the victim was neither chased down nor forced to he on the floor awaiting death, this court held that the evidence did not support a finding that the murder was committed in an especially heinous, atrocious, or cruel manner. 272 Kan. at 794.
Flournoy followed the general rule, but this court has permitted exceptions to that rule based on particular facts. In State v. Alford, 257 Kan. 830, 838, 896 P.2d 1059 (1995), the trial court concluded the murder was heinous, atrocious, or cruel where the defendant chased the victim into the lobby of a restaurant, shot her twice, and forced her back into the kitchen. When the victim attempted to escape, the defendant shot her again, dragged her around the corner of the kitchen, and fired two final shots. 257 Kan. at 838.
In State v. Brady, 261 Kan. 109, 123-24, 929 P.2d 132 (1996), abrogated on other grounds by State v. Vontress, 266 Kan. 248, 970 P.2d 42 (1998), the victims were forced to lie face down on the floor for 15 minutes not knowing what was going to happen while the defendant paced the room holding a gun before ultimately shooting them both in the head. In both Alford and Brady, this court upheld the trial court’s finding that the murders were committed in a heinous, atrocious, or cruel manner. See also State v. Washington, 280 Kan. 565, 123 P.3d 1265 (2005) (murder committed in heinous, atrocious, or cruel manner where defendant shot victim several times, victim attempted to hop away crying out for help, and victim was chased and suffered substantial mental anguish).
Viewing the evidence in the light most favorable to the prosecution, Alford and Brady are more germane under the facts of this case. After arriving at Childs’ apartment with a gun and arguing with her about who burglarized his apartment, Jones told both victims to go upstairs. Once upstairs, Jones took Childs into a bedroom and shut the door. After 5 or 10 minutes, Jones and Childs came out of the bedroom and Jones took Brown into the bedroom. While Brown was being hog-tied in the bedroom, Childs was in the bathroom with Kyea, crying and pleading for her life. Childs sat in the bathtub, and Kyea stood in the doorway. Although he was not certain, Kyea testified that he might have had the gun again at that time. After about another 5 minutes, Jones came into the bathroom, got the gun from Kyea, returned to the bedroom, and shot Brown. When Kyea went into the bedroom to take a look, Childs followed. When she saw what happened to Brown, Childs screamed and ran down the stairs. Jones chased after her and struggled with her in the living room. Before Jones shot her in the head, Childs was on the floor, screaming and holding her hands up near her face.
Although the shooting occurred in a relatively short period of time, the victim clearly was chased and suffered mental anguish as demonstrated by her cries while being held in the bathroom before she was murdered. Therefore, a preponderance of the evidence supports the trial court’s finding that Childs’ murder was committed in an especially heinous, atrocious, or cruel manner.
Mitigating Factors
Jones also contends that the trial court erred in failing to make findings regarding the mitigating factors submitted by defense counsel at the sentencing hearing.
This court reviews the trial court’s weighing of aggravating and mitigating circumstances for abuse of discretion. State v. Engelhardt, 280 Kan. 113, 144, 119 P.3d 1148 (2005).
At sentencing, defense counsel argued that the trial court should consider Jones’ age at the time of the crime, Jones’ being under the influence of alcohol and drugs, Jones’ ultimate cooperation with detectives, and the short amount of time between the two murders. The trial court, however, made no reference or findings concerning any mitigating factors during its pronouncements from the bench. As previously discussed, in imposing the hard 50 sentence, the trial court found the existence of two aggravating circumstances.
In a hard 50 proceeding, the trial court is to determine whether one or more aggravating circumstances exist beyond a reasonable doubt and whether the existence of such aggravating circumstances is not outweighed by any mitigating circumstances which are found to exist. The court shall designate in writing the statutory aggravating circumstances it found to exist. K.S.A. 2005 Supp. 21-4635(d).
K.S.A. 21-4637 enumerates eight mitigating factors which may be considered in a hard 50 proceeding, but this list is noninclusive:
“(1) The defendant has no significant histoiy of prior criminal activity.
“(2) The crime was committed while the defendant was under the influence of extreme mental or emotional disturbances.
“(3) The victim was a participant in or consented to the defendant’s conduct.
“(4) The defendant was an accomplice in the crime committed by another person, and the defendant’s participation was relatively minor.
“(5) The defendant acted under extreme distress or under the substantial domination of another person.
“(6) The capacity of the defendant to appreciate the criminality of the defendant’s conduct or to conform the defendant’s conduct or to conform the defendant’s conduct to the requirements of law was substantially impaired.
“(7) The age of the defendant at the time of the crime.
“(8) At the time of the crime, the defendant was suffering from post-traumatic stress syndrome caused by violence or abuse by tire victim.”
Jones contends that, because the trial court did not make findings concerning the mitigating factors presented at his sentencing hearing, any appellate argument and appellate review is hindered.
As this court observed in State v. Gideon, 257 Kan. 591, 609, 894 P.2d 850 (1995), nothing in the Kansas statutes requires the trial court to find the existence of mitigating circumstances beyond a reasonable doubt or to specify what mitigating circumstances are found. In Gideon, the trial court imposed a hard 40 sentence after finding the existence of three aggravating circumstances. Then, the trial court stated:
“ ‘The court further finds the following mitigating factors exist: First, the defendant has expressed remorse. Secondly, the defendant has accepted responsibility for his actions. And, thirdly, that the defendant eventually aided the authorities in winding up the investigation and at least putting some finality to the acts that he committed.' ” 257 Kan. at 610.
On appeal, Gideon pointed to evidence that supported mitigating factors other than the three mentioned by the trial court. The Gideon court noted that the trial court did not make any findings regarding the additional mitigating factors relied upon by the defendant. The defendant argued that the trial court erred in failing to state its findings and that the failure to state the other mitigating circumstances violated the Due Process Clause, the Eighth Amendment to the United States Constitution, Section 9 of the Kansas Constitution Bill of Rights, and the need for individual consideration during sentencing. 257 Kan. at 610.
The Gideon court pointed out that the trial court did not refuse to consider the proffered evidence in mitigation; instead, the court merely failed to indicate whether it found those three factors in mitigation. 257 Kan. at 611. This court determined that the defendant failed to show that the hard 40 sentence was imposed arbitrarily or in violation of his constitutional or statutory rights with respect to mitigating circumstances. The court stated: “Nothing in the hard 40 statutes requires the finder of fact to specify what mitigating factors are found; only aggravating factors must be designated.” 257 Kan. at 611. It was ultimately held that, “[i]n light of the overwhelming evidence of aggravating circumstances, we cannot say that the court erred in failing to find and specify these three statutory mitigating factors on the record.” 257 Kan. at 611.
Likewise, in State v. Higgenbotham, 264 Kan. 593, 957 P.2d 416 (1998), the defendant appealed his hard 40 sentence. The trial court based the imposition of the hard 40 sentence on two aggravating circumstances pursuant to K.S.A. 21-4636(e) and (f). Defense counsel argued that one mitigating circumstance applied: “The victim was a participant in or consented to the defendant’s conduct.” K.S.A. 21-4637(c). 264 Kan. at 610.
On appeal, this court determined that the two aggravating circumstances existed. As for the mitigating circumstance, this court stated: “The district judge made no finding that the mitigating factor of K.S.A. 21-4637(c) (victim consented to the defendant’s con duct) existed. Thus, no mitigating factors are present.” 264 Kan. at 612. The defendant’s hard 40 sentence was upheld.
As in Gideon, the trial court in the present case did not refuse to consider the proffered mitigation arguments; the court merely failed to indicate whether or not it found those factors in mitigation. The hard 50 statutes do not require the sentencing court to make any findings on the record regarding the mitigating factors relied upon by a defendant. While it would have been a better practice for the trial court to make such findings at Jones’ sentencing, it is not required and Jones fails to show that the hard 50 sentence was imposed arbitrarily or in violation of his constitutional rights. In light of the evidence supporting the aggravating circumstances, the trial court did not err in failing to make findings regarding Jones’ proposed mitigating circumstances on the record.
6. Cumulative Errors
Finally, Jones contends that the previously discussed issues also constitute cumulative error. As previously observed, however, the trial court did not commit any errors with respect to those issues. Without error, there can be no cumulative error. State v. Ross, 280 Kan. 878, 888, 127 P.3d 249 (2006). Therefore, this issue has no merit.
Affirmed.
Allegrucci, J., not participating.
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In a letter dated December 21, 2006, addressed to Carol G. Green, Clerk of the Appellate Courts, and Stanton Hazlett, Disciphnary Administrator, respondent Larry E. Bengtson, of Junction City, Kansas, an attorney admitted to the practice of law in the State of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (2006 Kan. Ct. R. Annot. 308).
Prior to surrendering his license, the respondent entered a plea of guilty to the felony offense of K.S.A. 21-3904, Presenting a False Claim. In addition, the respondent entered a plea of guilty to six counts of the misdemeanor offense of K.S.A. 21-3902, Official Misconduct.
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, effective December 21, 2006.
It Is Therefore Ordered that Larry E. Bengtson be and he is hereby disbarred from the practice of law in Kansas and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Larry E. Bengtson 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 therein 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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The opinion of the court was delivered by
Prager, J.:
This is an action for specific performance which arose out of a transaction between the appellant, Wilcox and the appellee, Wyandotte World-Wide, Inc., involving the purchase of two tracts of land. The two tracts of land for purposes of convenience have been designated as Parcel B and Parcel C and are located in Wyandotte County, Kansas. To describe the parcels briefly it can be stated that Parcel B was a hill and Parcel C was a low lying area filled with a number of draws and a creek bed. It appears from the record that Parcel C was also covered with timber. Wilcox was a grading contractor and Wyandotte WorldWide was engaged in the business of developing real estate for building construction. It is clear from the depositions of Wilcox and of Jack W. Bertoglio, president of the appellee, that the agreement between the parties contemplated an immediate sale of Parcel B and a two-year option to purchase Parcel C. From the discussion between the parties it is obvious that Wilcox intended to remove the dirt and rock from Parcel B and deposit it on Parcel C thus hoping to create two level pieces of property which might be available for building purposes. Pursuant to their discussion Wyandotte World-Wide sold Parcel B to Wilcox and a deed was given for the land. At about the same time Wyandotte WorldWide gave to Wilcox an exclusive option to purchase Parcel C for a period of two years. At the time the transaction was consummated Wilcox advised Bertoglio that Wilcox intended to commence work on Parcel B to remove the dirt and that he also intended to prepare Parcel C to make it a buildable piece of land. At the time the option was given to Wilcox, Parcel C consisted of a total of 36.27 acres. The agreed purchase price on exercise of the option was to be $70,000.00. The option contract involving Parcel C was executed on August 18, 1967. Shortly thereafter Wilcox began work removing dirt from Parcel B and moving it to Parcel C. In addition to this Wilcox began site grading and prepáration on Parcel C by clearing the timber, making necessary fills to make the land level and changing the creek channel. This work was performed by Wilcox during the two years subsequent to. the execution of the option. The problem in this case arose in July 1968. On July 31, 1968, condemnation proceedings were commenced by the Board of Trustees of the Kansas City, Kansas, Junior College by which the Board of Trustees condemned 6.85 acres of Parcel C. This left a remainder of 29.42 acres in Parcel C. Wilcox was named along with Wyandotte World-Wide as a defendant in the condemnation proceeding. The condemnation award was in the amount of $25,690.00 less special assessments and prorated taxes which was accepted. In November 1968, a check was issued in the amount of $23,634.97 payable to Wyandotte World-Wide, to the Fidelity State Bank, which held a mortgage on Parcel C, and also to Frank Wilcox. This check was signed by Bertoglio as president of Wyandotte World-Wide and delivered to A1 Pearson, Wyandotte WorldWide’s banker at the Fidelity State Bank. Frank Wilcox went to the bank and endorsed his name on the check and the check was deposited to the account of Wyandotte World-Wide. Wilcox testified that at tibe time he endorsed the check he was assured by A1 Pearson that the amount of the check would be applied toward the purchase price under the option contract for the sale of Parcel C. In his deposition Bertoglio denied any knowledge of the conversation between A1 Pearson and Wilcox, and stated he had given no specific instructions or authority to A1 Pearson to bind Wyandotte World-Wide in the application of the proceeds of the check. Bertoglio did testify in his deposition that A1 Pearson had authority to endorse Wyandotte World-Wide’s signature on the check and that A1 Pearson has authority to act for Wyandotte World-Wide in connection with the transfer of real property on specific directions from him. The deposition of A1 Pearson as to the extent of his' authority was not taken and it, of course, is not included in the record.
It should be noted that at tibe time the condemnation award was paid Wilcox had not exercised his option to purchase Parcel C. The two-year period during which the option could be exercised did not expire until August 18, 1969. Wilcox exercised his option by notifying Bertoglio, as registered agent of Wyandotte WorldWide, by a letter dated August 13, 1969, which was received by Wyandotte World-Wide on August 14, 1969. In the letter Wilcox states specifically that he exercises the option for the sum of $70,000.00 cash which he has placed in escrow with the Title Company less the amount Wyandotte World-Wide had received from the condemnation award. Stated in other words it is undis puted in the record that Wilcox paid to the escrow agency the sum of $43,575.04 by a cashiers check drawn on the Fidelity State Bank representing the total purchase price of $70,000.00 less the condemnation award and prorated taxes for the year 1969. Wyandotte World-Wide declined to accept the exercise of the option in the manner suggested by Wilcox. Wyandotte World-Wide submitted a counter offer to Wilcox to convey the remainder of the tract of 29.42 acres to Wilcox for a total of $55,191.43. This figure was arrived at by attempting to compute a proportionate amount of the original purchase price based upon the acreage remaining after the condemnation compared with the original amount of acreage. At the time the deposition of Bertoglio was taken it was stipulated by the parties that the amount submitted by Wyandotte World-Wide in its counter offer was in error and that it should have been more than that if it had been properly computed or calculated. The parties could not agree and were at loggerheads.
On October 3, 1969, Wilcox filed this action against Wyandotte World-Wide seeking partial specific performance of the option contract as to the land remaining with an abatement of the purchase price in the amount of the condemnation award less the prorated taxes for the year 1969. Plaintiff alleges in his petition that he had performed work to improve Parcel C during the option period in view of his contemplated ownership and that this work was performed with Wyandotte World-Wide’s knowledge and consent. In his petition Wilcox alleged that the taking of the 6.85 acres in the condemnation proceedings filed by the Board of Trustees of the Junior College made it impossible for the option contract to be performed in its entirety and that Wilcox having elected to exercise his option was entitled to the condemnation award as a credit or set-off on the option contract price of $70,000.00. In the prayer of his petition Wilcox prayed for specific performance of the option contract with a credit or set-off of the condemnation award or in lieu thereof, damages for the work and labor performed by Wilcox on the total acreage or for the unjust enrichment to Wyandotte World-Wide resulting therefrom.
Wyandotte World-Wide then filed its answer admitting the execution of the real estate option contract and admitting receipt of Wilcox’ letter of August 13, 1969, exercising the option. Wyandotte World-Wide admitted in its answer that it had delivered to the escrow agent, Guaranty Title and Abstract Company, a warranty deed and further admitted that subsequent to that time Wilcox had delivered to the escrow agent a cashier check in the amount of $43,575.04. Wyandotte World-Wide admitted in its answer that it had declined to accept Wilcox’ offer to pay $43,-$575.04 for the remainder of the land. Wyandotte World-Wide further alleged in its answer that if Wilcox performed any work or labor on the land he did so without notice to or authority from Wyandotte World-Wide. It is further admitted in the answer that Wilcox attempted to participate in the condemnation proceedings and claimed some interest therein. Wyandotte World-Wide further alleged that at no time prior to the award of the contract did Wilcox exercise or attempt to exercise his option to purchase Parcel C and after the taking of the land by condemnation it was thereafter impossible for Wyandotte World-Wide to convey to Wilcox the land described in the option. The counter offer made by Wyandotte World-Wide is alleged in the answer with an allegation that Wilcox did not accept it. In its answer Wyandotte World-Wide prayed that Wilcox’ petition be dismissed for failure to state a claim and further prayed the court to find the option was terminated. Wyandotte World-Wide prayed for judgment for its costs. The filing of Wyandotte World-Wide’s answer brought the case to issue.
With the pleadings in this posture the parties took the depositions of Frank Wilcox and of Jack W. Bertoglio, president of Wyandotte World-Wide. These depositions confirm the truth of the facts as set forth above. Bertoglio testified in his deposition that at the time Wilcox purchased Parcel B, it was agreed that the two-year option be granted on Parcel C. Bertoglio further testified that at the time Parcel B was purchased there was some discussion relating to the creek area and the need for improving the area which at that time was not useable. He testified that he was aware of Wilcox’ work during the two years the option was in existence and that he observed changes being made on Parcel C. In regard to the authority of A1 Pearson, he denied that he had given any authority to A1 Pearson or had any knowledge of any agreement to credit the condemnation award check toward the purchase price of Parcel C. He did testify that A1 Pearson had authority to endorse Wyandotte World-Wide’s name on the check and that A1 Pearson did have authority to commit Wyandotte World-Wide in connection with transfer of real estate properties but only on specific directions. This left open an issue of fact as to the authority of A1 Pearson to agree that the condemnation check be considered as a partial payment on the purchase price of $70,000.00.
On March 24, 1970, Wyandotte World-Wide filed a motion for summary judgment pursuant to K. S. A. 60-256 moving the court to enter summary judgment in favor of the defendant on all issues involved in the action. In this motion Wyandotte World-Wide stated that it was entitled judgment for the reason that the pleadings, exhibits, and depositions on file show that there is no real issue as to any material fact.
On April 7, 1970, Wilcox filed his Objections to Summary Judgment contending that there were issues of facts undisposed of, particularly in connection with the question of the right of Wilcox to recover for the work and labor he had performed. Wilcox further contended that there remained an issue of fact as to the authority of A1 Pearson of Fidelity State Rank to bind Wyandotte World-Wide that the amount of the condemnation award would be applied as a credit toward the total purchase price under the option contract. Counsel submitted memorandum briefs. The trial court sustained the motion for summary judgment without making findings of fact or conclusions of law or stating any rationale for its decision. It entered judgment in favor of Wyandotte World-Wide against Wilcox on all issues. A timely appeal was filed to this court.
On this appeal the appellant, Frank Wilcox sets forth in his Statement of Points, six points of error as follows:
“1. It was error to rule that a condemnation of a six-acre portion of a 36-acre option to purchase, prior to the running of the option, terminates the option if not exercised instanter.
“2. It was error to deny specific performance of plaintiff’s option to buy.
“3. It was error to sustain defendant’s motion for summary judgment when two (2) factual questions had not been determined.
“4. It was error not to allow plaintiff the benefit of the bargain by crediting the condemnation proceeds to the option price.
“5. It was error to deny plaintiff the opportunity to prove his damages upon refusing specific performance.
“6. It was error to deny plaintiff the opportunity to examine defendant’s agent as to his authority to bind his principal in the application of the condemnation funds.” .. ..
At the outset it should be emphasized that the appellant, Wilcox, was given an exclusive option to purchase Parcel C for a period o£ two (2) years from the date of the option. This option was exercised by Wilcox by his letter to Wyandotte World-Wide dated August 13, 1969. It is well established in Kansas that an option agreement to sell and convey land becomes absolute and binding on both parties when the option is accepted by the vendee within the time and on the terms specified. Such an agreement will be specifically enforced if it is fairly made and for a sufficient consideration. (Chadsey v. Condley, 62 Kan. 853, 62 Pac. 663; Todd v. Stewart Sand & M. Co., 140 Kan. 71, 34 P. 2d 105; McDermed v. Ackley, 141 Kan. 818, 44 P. 2d 274; Tinkler v. Devine, 159 Kan. 308, 154 P. 2d 119; Nigh v. Wondra, 167 Kan. 701, 208 P. 2d 239; Price v. Brodrick, 183 Kan. 71, 325 P. 2d 387.)
Whether equity will decree the specific performance of a contract rests in sound judicial discretion and always depends on the facts of the particular case. (Shepard v. Dick, 203 Kan. 164, 453 P. 2d 134; Wetzel v. Hattrup, 174 Kan. 244, 255 P. 2d 637.) Ordinarily there is no equity in releasing a party from a fair and reasonable contract into which he freely entered unless the circumstances of the case require it. (Crockett v. Gray, 31 Kan. 346, 2 Pac. 809.)
A court of equity may and, where equity requires it, will grant partial specific performance of a contract for the sale of real estate by enforcing the contract as to only a part of the land contracted for, and apportion the contract price. This may be done notwithstanding no apportionment is provided for in the contract. In Crockett v. Gray, supra, the.contract provided for the conveyance of 33 acres and it was established that one acre of the tract was a homestead and the contract was void, because signed by the husband alone. Specific performance of the contract for the remaining 32 acres was decreed with an abatement of the purchase price for the value of the homestead acre. The same rule is recognized in Williams v. Wessels, 94 Kan. 71, 145 Pac. 856. There the owner of land contracted for its sale and his wife refused to join in the deed. The contract purchaser was granted specific performance, receiving an abatement in the agreed purchase price to the extent to which the value of the title he obtained was diminished by the outstanding interest of the wife. Under similar circumstances specific performance was granted in Herman v. Sawyer, 112 Kan. 6, 209 Pac. 663. The rule has also been recognized in Hollingsworth v. Sell, 167 Kan. 405, 207 P. 2d 406, and in Zeigler v. Conger, 204 Kan. 143, 460 P. 2d 515.
A question of law has been raised in this case as to whether or not the taking of a small portion of a tract of land by eminent domain prevents specific performance of an executory contract for the sale of land in an action brought by either the vendor or the vendee. There are a number of cases in Kansas which hold that under those circumstances specific performance may be granted where the equities of the case require it. In such a situation the vendee is required to pay the vendor the full amount of the purchase price but the vendee is entitled to receive the condemnation award. (Kuhn v. Freeman, 15 Kan. 423; Gammon v. Blaisdell, 45 Kan. 221, 25 Pac. 580; and Dreier v. Drainage District, 117 Kan. 403, 232 Pac. 600.) Logically the same rule should be applied to an option contract for the purchase of land where the option has been exercised by the vendee. As pointed out heretofore where the option is exercised, a binding contract comes into existence which is mutually enforceable against both the vendor and the vendee.
There are no cases in Kansas exactly in point where an option to purchase real property has been exercised subsequent to a condemnation proceeding in which a portion of the land was taken for public use. There are, however, cases in other jurisdictions which permit the optionee to apply the condemnation award to the purchase price after the option has been exercised. In Cullen & V. Co. v. Bender Co., 122 O. S. 82, 170 N. E. 633, a lessee of land was in possession under a lease for a term of years which contained a provision giving the lessee the option to purchase the land at any time during the term of the lease for a sum stated. Before the exercise of the option by the lessee a portion of the land was taken for public use by condemnation, for which the lessor received a condemnation award. It was held that the lessee on executing the option was entitled to credit for the amount of the condemnation award as against the stipulated purchase price. To the same effect are: Phoenixville, V. F. & S. E. Ry. Co’s Appeal, 70 Pa. S. 391, 68 A. L. R. 1339; Nicholson v. Weaver, 194 F. 2d 804; State v. New Jersey Zinc Co., 40 N. J. 560, 193 A. 2d 244; and Cinmark Investment Company v. Reichard, 54 Cal. Rptr. 810.
In the annotation in 68 A. L. R. 1338 there are cited cases from other jurisdictions which are distinguishable by the fact that at the time the action was brought the option to purchase had not been exercised. Likewise cases involving the destruction of build ings on the premises by fire before the option is exercised, such as Caldwell v. Frazier, 65 Kan. 24, 68 Pac. 1076, are not helpful here because of the peculiar circumstances involved.
As pointed out heretofore whether equity will grant specific performance of a contract rests in sound judicial discretion and depends on the equities in the particular case. We have concluded that in this case the appellant, Wilcox, should be granted specific performance of the contract by requiring appellee, Wyandotte World-Wide, to execute its warranty deed to Wilcox conveying the remainder of the tract consisting of 29.42 acres upon receipt from Wilcox of the sum of $43,575.04 which amount represents the total purchase price of $70,000.00 less the condemnation award and prorated taxes for 1969 which has been paid to Wyandotte World-Wide. The impact of real estate taxes for the years subsequent to 1969 should fall upon the appellant, Wilcox. The costs of the action are taxed to the appellee, Wyandotte World-Wide. In granting specific performance in this case we have considered the following facts and circumstances:
(1) The sale of Parcel B and the option to purchase Parcel C were a part of the same transaction and the consideration for the entire agreement between the parties.
(2) At the time the original agreement was entered into it was contemplated that the appellant, Wilcox, would perform work during the two-year option period to remove dirt and rock from Parcel B and to fill the draws, remove timber and change the creek channel on Parcel C with the end in mind of creating two buildable pieces of property.
(3) Wilcox performed the work with the full knowledge of Jack W. Bertoglio, president of Wyandotte World-Wide.
(4) The work performed by Wilcox enhanced the value of Parcel C including the land taken through condemnation by the Board of Trustees of the Junior College.
(5) The taking of the 6.85 acres through eminent domain by the Board of Trustees was not the fault of either party. As pointed out in Kuhn v. Freeman, supra, neither the vendor nor the vendee had any choice but to permit the taking of land by eminent domain and the parties must still perform their contract just as far as they can unless it is not possible to do so.
(6) A decree of specific performance as to the remaining 29.42 acres will effectively carry out the agreement of the parties. To deny specific performance would thwart the clear intention of the parties to the contract and unjustly enrich Wyandotte World-Wide at the expense of appellant, Wilcox.
(7) Payment of the sum of $70,000.00 to Wyandotte World-Wide less a credit for the condemnation award and prorated taxes already received would give to appellee all of the benefits it was to receive under its agreement with Wilcox and thus its rights would be fully protected.
(8) By granting specific performance the difficult task of determining Wilcox’ damages for his work and labor would be avoided.
Since the court has determined that specific performance should be granted in this case with an abatement of the purchase price to the extent of the condemnation award the remaining issues in the case are moot and need not be determined. In this case only the appellee, Wyandotte World-Wide moved for summary judgment. Although the appellant, Frank Wilcox, did not file a motion for summary judgment it should be noted that in the Objections to Summary Judgment Wilcox moved the court to determine the question of law presented in the defendant’s motion for summary judgment.
The questions involved here have been determined in favor of the appellant. Under K. S. A. 60-256 a court may enter summary judgment in favor of the non-moving party on it’s own motion where there remains no genuine issue as to any material fact and on the evidentiary record judgment must be for one of the parties as a matter of law. (Green v. Kaesler-Allen Lumber Co., 197 Kan. 788, 420 P. 2d 1019.) It should also be noted that K. S. A. 60-2105 empowers this court to render such final judgment as it deems that justice requires or direct such judgment to be rendered by the court from which the appeal was taken. In view of our over-all disposition, nothing would be gained by remanding this case for a new trial. The judgment of the trial court is therefore reversed and the case is remanded with instructions to proceed in accordance with the views expressed in this opinion.
rr is so ORDERED. | [
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The opinion o£ the court was delivered by
Kaul, J.:
This litigation was initiated by a claim against the estate of Bertha M. Seeger, deceased, filed in the probate court by Margaret Seeger (widow and sole legatee of Glenn E. Seeger, deceased). In the course of the proceedings Margaret Seeger died and has been succeeded by W. C. Sullivan, administrator. The claim was certified to the district court wherein a trial was had resulting in a judgment generally in favor of claimant.
In essence, the question involved is whether Bertha, the surviving spouse of G. E. Seeger, acquired full ownership of or a life estate in certain personal property, consisting primarily of an interest in a bank account and a one-half interest in 14 United States “E” Bonds, under the decree of final settlement in the estate of G. E. Seeger, deceased.
The appellant, Mary Grote, executrix of Bertha’s estate claims that the subject property, even though inventoried, was not an asset of the estate of G. E. Seeger’s estate, but became the property of Bertha as a surviving joint tenant or in the alternative if the property was an asset of G. E.’s estate, full ownership thereof was delivered to Bertha by the final decree of the probate court in G. E.’s estate. Mary further claims that in any event all of the funds mentioned were exhausted by Bertha during her lifetime.
In order to put the issues on appeal in an understandable perspective a brief history of the Seeger family is necessary.
G. E. Seeger, father-in-law of Margaret Seeger and husband of Bertha M. Seeger, died testate on August 26, 1953. G. E. Seeger was survived by his widow and two children, a son Glenn and a daughter Mary Grote. The present controversy concerns the provisions of his will, which was executed on January 13, 1947, and consented to by his wife Bertha M. Seeger. In the second paragraph of his will G. E. Seeger devised and bequeathed to his wife, Bertha M. Seeger:
“. . . [Alll my property, real, personal, or mixed, of whatever nature or kind soever, to have and to hold as long as she lives, giving unto her the full control and management, use and enjoyment, of all of said property, and the income thereof, necessary for her support, comfort, happiness, convenience, and pleasure, and after her death, then the real estate and such of the personal property as may be remaining shall go and belong in fee to the persons as is hereinafter provided. And I direct that my said wife shall not be required to give any bond or other security as life tenant or trustee or otherwise of said property and that she shall not be required to give any accounting of the same.”
In the third and fourth paragraphs of his will, G. E. Seeger devised specifically described tracts of real estate to his son, Glenn E. Seeger, and to his daughter, Mary Grote, the devises to become effective “After the death of my said wife and subject to the provisions of paragraph second above.”
The fifth paragraph was in the nature of a residuary clause and reads:
“After the death of my said wife and subject to all the provisions of paragraph ‘Second’ of this Will, then whatever, is remaining of my real and personal property I give and bequeath share and share alike to my children, Glenn E. Seeger and Mary Grote.”
Mr. Seeger also appointed his wife Bertha executrix of his will and directed that she be not required to give bond.
On October 22, 1952, some five and one-half years after the execution of the will, G. E. Seeger executed a codicil in which he devised to his daughter, Mary Grote, two parcels of real estate which had been devised to his son, Glenn E. Seeger, by the terms of the original will. In view of this change the codicil provided for a bequest to son Glenn in the amount of $3000 in cash “to offset this change.” The original will was ratified and confirmed in all other respect. Bertha M. Seeger duly executed her consent to the codicil.
Subsequent to the execution of his will, G. E. Seeger and Bertha signed a signature card and a depositor’s contract establishing a bank account with the First National Bank of Logan. The contract was marked a joint account, which is described in the body of the contract as an account owned jointly with the right of survivorship. As shown by the inventory in G. E. Seeger’s estate, the account amounted to $9828.79 on the date of G. E.’s death.
Commencing in 1942 and running through 1945, G. E. and Bertha purchased 14 United States “E” Bonds which were apparently titled G. E. or Bertha M. Seeger. The cash value of the bonds was shown by the inventory to be $2943.19 on the date of G. E.’s death.
The inventory of G. E. Seeger’s estate was filed by Bertha M. Seeger, as. executrix, on September 17, 1953. It listed as assets of the estate one-half of the $9828.79 in the joint bank account less the widow’s allowance of $750, leaving a net of $4164.39, and one-half of the appraised value of the bonds $1471.58. The devolution of these two items becomes the principal issue in this controversy.
Continuing with the chronology of events, G. E. Seeger died on August 26, 1953; his estate was closed on October 29, 1954.
Glenn E. Seeger died testate on July 9, 1963. His widow, Margaret, was appointed executrix of his estate which was closed on January 4, 1965.
On September 16, 1966, Bertha M. Seeger made her last will and testament in which her daughter Mary Grote, respondent herein, was nominated executrix.
Bertha M. Seeger died on August 26, 1967, her will was admitted to probate and Mary Grote was appointed executrix.
On May 14, 1968, in the estate of Bertha, Margaret Seeger filed the petition for allowance of demand which is the subject of this controversy.
In her petition Margaret sets out the background facts, which we have recited in substance, and then alleged that she was the sole legatee and devisee of her deceased husband, Glenn, and that by reason thereof she is now the owner of the money and personal property in which Glenn Seeger held a vested remainder interest under the will of G. E. Seeger. Margaret further alleged that the journal entry of final settlement in the estate of G. E. Seeger set out the real estate in which Bertha was to have a life estate and the remainder interest therein that was given Glenn and Mary, but that said journal entry did not set forth with particularity the extent and nature of the title of each legatee (Glenn and Mary) acquired by them in the money and personal property under the will and codicil of G. E. Margaret also alleged that all money and personal property, as well as the land described in the will, was bequeathed to Bertha as a life estate, which she enjoyed during her lifetime and that Glenn E. Seeger had a vested remainder in $3000 of money remaining by reason of the codicil to G. E.’s will, and in addition a vested remainder in one-half of the remaining money and personal property, that Bertha’s interest in the personal property, money and bonds, terminated upon her death and petitioner became entitled to the possession of said property to the value of $5798.44, which sum, petitioner prayed the executrix of Bertha’s estate be directed to pay over to her.
The inventory in Bertha’s estate shows that on her death, in addition to real estate appraised at $20,000.00, she had $18,933.14 in cash; tihe 14 United States “E” Bonds valued at $4546.79; crops and agricultural payments totaling $2468.39; and a small amount of household goods.
Mary Grote, executrix of Bertha’s estate, filed an answer to Mar garet’s claim denying that Glenn had a vested remainder in the bonds, money and personal property. Mary alleged that on ihe final settlement of G. E.’s estate the probate court adjudged Bertha to be entitled to all of the cash, personal property and United States “E” Bonds belonging to the estate and did not grant to Glenn any remainder interest in any of the said personal assets, and that the judgment of the probate court became final, was not appealed from and is res judicata.
Mary further alleged that the bonds and bank account mentioned in the inventory of G. E.’s estate were not assets of the estate, but were owned by G. E. and Bertha in joint tenancy; that the debts and expenses of administration more than exhausted the only personal property in the estate which was subject to claims of creditors; and that as a result there were no funds or property remaining to meet the $3000 bequest to Glenn or any sums to pass to Mary and Glenn under the terms of the residuary bequest set forth in paragraph fifth of G. E.’s will.
Mary also made a counterclaim against Margaret, the disposition of which is not at issue in this appeal.
After issues were joined, a pretrial conference was held and the case was set down for trial to the court. The trial court heard evidence offered by both parties and at the conclusion of the trial made comprehensive findings of fact and conclusions of law.
The trial court found generally for Margaret, the claimant, and allowed $3000 with eight percent interest from date of Bertha’s death, representing the bequest to Glenn made in the codicil, and in addition one-half of the remainder of cash and personal property computed to be $1,812.31, or a total of $4,812.31. The trial court also allowed Margaret a one-fourth interest in the 14 United States “E” bonds.
Findings of fact made by the trial court, which we believe pertinent to the disposition of this appeal, are Nos. 3, 6 and 7, which read:
“3. The Will and Codicil thereto, of G. E. Seeger, was admitted to probate by the Probate Court of Phillips County, Kansas immediately after the death of G. E. Seeger, and Bertha M. Seeger appointed Executrix thereof. She inventoried and appraised in said estate, household goods of the value of $400.00, a Chevrolet automobile of the value of $25.00, wheat in the bin of the value of $1,700.00, a X interest in 14 United States Government “E” Bonds of the then value of $1,471.58, and & interest in a bank account in the First National Bank of Logan, Kansas, amounting to $4,914.39. The Inventory and Appraisal was duly sworn to by Bertha M. Seeger as Executrix, and filed in said estate. The wheat in the bin was subsequently sold for $1,810.92. Bertha M. Seeger continued the account in the First National Bank as the estate of G. E. Seeger or Bertha M. Seeger, Executrix and opened up an individual account in her own name, transferring % of the original account thereto and deposited $750.00, her widow’s exemption in said account and continued to carry said account the rest of her lifetime.
“6. After payment of all of the expenses of said estate, there remained cash of $6,199.62, /á interest in the 14 Government Bonds, the household goods and the 1937 Chevrolet automobile which were inventoried and appraised in said estate and/or deposited in the estate bank account, included in the income tax returns of the estate, and contained in the final report of said Executrix, all of which were sworn to by the Executrix as being correct, except the income tax returns which are varified by law.
“7. In the final settlement the Court decreed that Bertha M. Seeger was entitled to the residue of said estate, which included all of the above stated personal property, as a legatee and devisee, and said property was delivered to her. The Court did not decree in what capacity said property was delivered to her, there are no orders in the decree indicating full ownership such as absolute, forever, etc., and the Court specifically refrained from finding that Bertha M. Seeger was the sole legatee. The Court finds that it was the intention of the Probate Court to deliver said property as per the terms of the will of said decedent and in accordance with Section 59-1506, K. S. A., which limits her interest therein to a life estate, subject to her right to use the same if it was necessary for her support, comfort, etc.,”
The trial court further found that at all times during her lifetime after the death of her husband, Bertha had an individual bank account of more then $8000 and that, after the personal property was delivered to her in the G. E. Seeger estate, she had adequate funds to supply all of her needs.
The trial court set out several theories in support of its conclusions. First, the trial court concluded that Bertha waived any right to claim joint tenancy rights in the subject property owned by G. E. by consenting to his will and codicil. Second, that by placing the subject property in the inventory of the G. E. Seeger estate, depositing the money in the estate bank account, including it in the 1954 estate income tax returns, including it in her final account and, otherwise, handling and treating it as property of the G. E. Seeger estate, Bertha and all claiming under her were estopped from denying that the same was property of the G. E. Seeger estate. However, we believe the determination and the reasoning in support thereof, set out in Conclusion No. 3 effectively resolves the issue.
Conclusion No. 3 reads:
“Since the Probate Court did not define in what capacity it delivered the personal property of the estate of G. E. Seeger to Bertha M. Seeger, refraining from using any words indicating full ownership, such as absolute, sole legatee, etc., the court construed said decree as following the terms of decedent’s will and Section 59-1506, K. S. A. which limits her interest to a life estate therein.”
Before further decussing the points raised on appeal, we should again point out that there is no dispute concerning any of the real estate, and that essentially there are only two items of concern— the one-half interest in the bank account and the one-half interest in the 14 United States “E” Bonds, which were inventoried as assets in the G. E. Seeger estate.
On appeal, the appellant, Mary, takes the position that Bertha’s consent to the will did not extinguish her rights in the joint tenancy bank account and bonds; that she is not estopped from claiming that the property belonged solely to her; that the final decree in G. E.’s estate granted her all of the personal property absolutely and is res judicata; and that the legacy to Glenn provided in the codicil failed because there was insufficient personal estate.
The appellee, Margaret, on the other hand, argues that Bertha waived the right to claim joint tenancy rights by consenting to G. E.’s will and codicil; that because of her various acts treating the property as belonging to the estate of G. E. Seeger she became estopped; that the action is not an attack on the final decree in G. E.’s estate, but only an action to construe it; that Bertha at all times had adequate funds for her needs; and that there was no evidence that Bertha had ever used the corpus of the property in question or a portion thereof for her support.
It appears that both parties deem the final decree in G. E.’s estate as final and res judicata, their differences arise with respect to the effect and construction thereof. The position of the parties with respect to the finality of a final decree is in accordance with our holdings.
In considering the finality of a decree of final settlement in the case of In re Estate of Burling, 179 Kan. 687, 298 P. 2d 290, we said:
“It is the fundamental rule of this court that where a court has jurisdiction of the parties to an action and of the subject matter thereof and renders a judgment within its competency, the judgment is final and conclusive unless corrected or modified on appeal, or by such other method as may be prescribed by statute and it cannot be attacked collaterally otherwise, [citing cases].” (p.694.)
The instant action is not a collateral attack upon the decree of final settlement, but rather seeks an interpretation thereof. (See In re Estate of Cipra, 173 Kan. 330, 246 P. 2d 264.)
This is not an action to construe a will, nevertheless, we believe an analysis of the entire will and codicil of G. E. Seeger is warranted because the matter whether the final decree conforms with the provisions of G. E. Seeger s will is worthy of consideration.
It is evident from an examination of his will that G. E. Seeger, with the consent and cooperation of his wife, Bertha, carefully planned the distribution of his estate. He first made adequate provision for the “support, comfort, happiness, convenience and pleasure” of his wife by bequeathing to her for as long as she lived all of his property with full right of control and management. He then meticulously divided the remainder interests in real estate by specific devises to his son and daughter. Then in the fifth paragraph of his will he divided whatever remained of the real and personal property share and share alike between Glenn and Mary. It is thus apparent he intended that after providing for his wife, the remainder of his estate should be divided in what he apparently considered to be portions equal in value between his two children. This intention is further demonstrated by the codicil in which he changed a devise of real estate from Glenn to Mary, but equalized by bequeathing Glenn $3000. Bertha, it must be inferred, was fully aware of G. E.’s intentions and concurred therein as evidenced by her consent to the will and codicil.
It is worthy of note that Bertha filed the inventory in G. E.’s estate showing a one-half interest in the bank account and the bonds as assets of the estate on September 17, 1953, less than one year after she executed her consent on October 22, 1952, to the codicil, which provided a $3000 bequest to Glenn in lieu of the interest in real estate previously devised to him.
The intentions of G. E. Seeger, as reflected by his will and codicil, were effected by the probate court’s final decree as construed by the district court.
Regardless of what rights, if any, Bertha had as a surviving joint tenant she made no attempt to exercise them, but instead listed a one-half interest in the bank account and bonds as assets of the estate, thus providing some assurance that Glenn’s bequest could be paid upon her death. It is true, the probate court did not define in what capacity it delivered the property to Bertha on final settle ment, nor did it set forth with particularity the extent and nature of the interest acquired by Glenn and Mary in the remainder under the codicil and paragraph fifth of the will. Can it be said the probate corut made the order of final distribution in G. E.’s estate without considering the provisions of his will and codicil and, in fact, in contravention thereof?
While it must be conceded the final decree was not carefully drawn; nevertheless, we believe the probate corut intended distribution in conformance with the will, rather than in opposition thereto, and that the final order was made in accordance with K. S. A. 59-1506. The decree merely assigned to Bertha “all personal property, all United States ‘E’ Bonds; and a life estate in and to all of the real estate.” The probate court did not use any words indicating full ownership of such as “to be her property absolutely.”
K. S. A. 59-1506 of the Probate Code reads:
“When by will the use or income of personal property is given to a person for a term of years or for life, and another person has an interest in such property as remainderman, the court, unless the will provides otherwise, may order such property to be delivered to the person having the limited estate, or to be held by the executor or some other person as trustee for the benefit of the person having the limited estate. Bond may be required of the person to whom the property is delivered or by whom it is held, in the first instance or at any time prior to the termination of the limited estate.” (Emphasis supplied.)
An order of final settlement, in similar terms and entered under circumstances almost identical with those of the instant case, was considered in the light of 59-1506 in the case of In re Estate of Cipra, supra.
In the Cipra case a daughter, Alice Choate, filed a demand against the estate of her mother, Mabel Cipra, Alice’s demand was based on a provision of her father’s (Wenslow Cipra) will by which she and her sister were bequeathed the remainder interest after her mother’s life estate in personal and real property. As in the instant case, the mother was the executrix of the father’s will and under the order of final settlement paid over to herself, without qualification or mention of the daughters’ remainder interests, the sum of $18,493.40 remaining in the estate. Eleven years after the father’s death, Mabel, the mother, died in possession of the personal property in question. Alice filed her claim in the mother’s estate. In construing the Cipra final order of distribution in the light of K. S. A. 59-1506 (then G. S. 1949, 59-1506), we said:
‘It will be noted that the probate court in the Wenslow Cipra estate could have ordered the property in question held by the executor or some other person as trustee for the benefit of Mabel. It also had the power since there was nothing in the will to provide otherwise to order the property to be delivered to Mabel since she was the person having the limited estate. Such is the order the court saw fit to make. It is entirely consistent with the terms of Wenslow’s will. . . .” (pp. 333,334.)
In her reply brief Mary attempts to distinguish Cipra from the instant case. First, she argues that the cases are distinguishable because there was no joint tenancy property involved in Cipra. The matter is irrelevant since the property in question here was shown as an asset of the estate in the decree of final settlement, a determination which is res judicata.
Mary claims the two decrees are worded differently. True, there are some minor variations in language, but there is no material difference in the effect of the two decrees. Both decrees deal with wills creating fife tenancies, and both order the property delivered to the life tenant without using any words indicating a delivery of absolute ownership. In both cases the claims were filed against the life tenant’s estate. The principle upon which the Cipra decision rests is fully applicable and controls the decision in the instant case.
In view of what has been said it is unnecessary to consider whether Bertha’s consent to the will and codicil worked a severance of joint tenancy if such existed in the subject property. The trial court did not specifically find the existence of joint tenancy, but merely concluded that Bertha “waived right to claim joint tenancy rights” — by consenting to the will and codicil. Whether Bertha intended a waiver of any joint tenancy rights by her consent is immaterial to our decision here. The record shows that she never asserted any rights of joint tenancy, but to the contrary listed a one-half interest in the United States “E” Bonds as an asset of the estate and transferred one-half of the Bank account and a widow’s allowance of $750 to her own account, listing the remainder as an asset of the estate. There was no mention made in the inventory, the petition for final settlement or in the final decree that any of the assets were listed only for inheritance or estate tax purposes. In the absence of definite evidence to the contrary, a decree of final settlement in a testate estate should be construed to operate in conformance with the terms of the will and the statutes pertaining thereto.
We hold that under the provisions of K. S. A. 59-1506, and in accordance with the terms of G. E. Seeger’s will and codicil, that the probate court, by its final decree, delivered the subject property to Bertha as the person having the limited estate for her use and enjoyment during her lifetime.
Concerning Mary’s contention the $3000 legacy to Glenn failed because there was insufficient personal estate to make the legacy operative, the trial court found to the contrary as set forth in Finding No. 6 quoted hereinbefore. The items of property listed by the trial court in Finding No. 6 are precisely the same as those items of personal property found to be left for distribution by the probate court in its final decree in the G. E. Seeger estate. The pertinent portion of the final decree referred to reads:
“. . . [L]eaving for distribution the following property:
“Personal
“Cash $6199.62
“One Half interest in 14 Government Bonds
“Household goods.
“One 1937 Chevrolet Auto.”
Under the provisions of the second paragraph of G. E. Seeger’s will, Bertha was given the use and enjoyment of all the property described, and the income therefrom, necessary for her support, comfort, etc. It appears that Bertha did not find it necessary to use any of the corpus of the subject property. This matter is further explained by the trial court’s finding that Bertha at all times had more than $8000 in her individual bank account. It should also be noted that the inventory of Bertha’s estate shows a checking account in the amount of $18,933.12. The trial court’s findings in this regard are fully supported by the evidence. Even though she was authorized, if necessary, there is no evidence to show that Bertha ever used any of the corpus of the G. E. Seeger estate.
For the reasons stated, the judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Fontron, J.:
The defendant, Edward L. Kirk, was convicted of first degree burglary and larceny. He has appealed. His primary complaint relates to the trial court’s refusal to permit him to call witnesses, other than himself, to establish an alibi.
It appears Mr. Kirk was represented by retained counsel continuously from the time of his arrest through the trial. On the morning of the trial, and during the voir dire examination but before the jury was sworn, his counsel advised the court that he had just learned from Kirk’s wife that at the time of the alleged burglary, the defendant and his wife were watching television at the home of two of their friends. Counsel then requested leave to file a belated notice of alibi and to present the testimony of the supporting witnesses.
To no one’s surprise, the state viewed this request with a jaundiced eye and the court thereupon overruled the request. The court did however, in obedience to the provisions of K. S. A. 1971 Supp. 22-3218 (1) permit the defendant, himself, to testify concerning his whereabouts at the time of the offense.
K. S. A. 1971 Supp. 22-3218 ( 2) provides that notice of alibi shall be served on the prosecuting attorney at least seven days before commencement of trial, but that the court may, for good cause shown, permit notice to be given at a later date. These provisions remain substantially unchanged from the prior statute, K. S. A. 62-1341. (See Richard H. Seaton and Paul E. Wilson, 39 J. B. A. K. 97, 168 [1970].) This court, in construing the statute, has consistently held that permission to file a later notice lies within the sound discretion of the trial court and that a refusal of permission is not to be overturned in the absence of an abuse of discretion. (State v. Sharp, 202 Kan. 644, 451 P. 2d 137.)
Under the circumstances shown by this record, we cannot charge the trial court with an abuse of discretion. It is clear that the defendant had more than ample time to have informed his counsel before trial of whatever alibi he claimed to have. However, Mr. Kirk did not advise his lawyer that he and his wife were visiting friends on the evening of the offense, but instead had told him that he was at home with his wife at that time. It is true that counsel might have filed a notice of alibi on the receipt of this information and listed Kirk’s wife as an alibi witness, but the record indicates counsel deemed it better strategy to rely on the lack of reliable identification than on an alibi buttressed solely by defendant’s spouse. That was a decision dictated by trial tactics and may scarcely be said to provide the basis for a contention that the court was guilty of abusing its .discretion.
We find a suggestion in the defendant’s brief that judicial discretion on motions of this nature is rarely, if ever, exercised in favor of the accused. We trust this charge is baseless, for were it true, it would be a grave indictment of the judiciary of this state. Certainly in the case at bar, the accusation appears ill founded. The court did not overrule the defendant’s request out of hand, but listened to arguments pro and con and then took the matter under consideration, ruling on it, however, before the jury was sworn. Further arguments concerning the matter were entertained by the court on the motion for new trial before that motion was overruled. The trial court evidently believed that the state would be placed at a serious disadvantage if a last minute notice of alibi were permitted, and we cannot fault the court for entertaining that belief.
One additional claim of error should be noted briefly. We glean from the record that while Mr. Kirk was on the witness stand he asked for the dismissal of his attorney and the appointment of another counsel, stating he had been led to believe his case was not going to be brought to trial. Apparently this request was denied by the court. This was proper we believe, for trial was in progress.
We cannot quarrel with the defendant’s general assertion that for good cause shown an accused should be permitted to secure new counsel when he no longer has faith in the old. However, the time for a change of horses is hardly while the wagon is resting in midstream. At this point in any trial, a court must exercise its best judgment under all the circumstances, and this we believe was done. Moreover, the defendant’s bare assertion that he thought his case would not be tried is not corroborated in any fashion so far as the record is concerned.
Although counsel in this case was not court-appointed, but was retained, we believe what we said in State v. Walker, 202 Kan. 475, 449 P. 2d 515, is worthy of note:
“. . . Likewise, whether the dissatisfaction of an indigent accused with his court-appointed counsel warrants discharge of that counsel and appointment of new counsel is for the trial court, in its discretion, to decide. . . .” (p. 477).
Other matters mentioned in the defendant’s brief have been considered and found to be without merit.
Prejudicial error has not been made to appear and the judgment is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is a damage action wherein the plaintiff, Pearl Bender, seeks recovery for personal injuries allegedly sustained while she was a business invitee on the used car lot of Bulger Cadillac-Oldsmobile, Inc. in Wichita. At the conclusion of plaintiff’s evidence the trial court sustained the defendant’s motion for a directed verdict and the plaintiff appeals.
The only questions presented are whether the record discloses the plaintiff to be guilty of contributory negligence, and the defendant not guilty of negligence, as a matter of law.
The testimony shows that Pearl Bender (plaintiff-appellant) was taken across the street from the main showroom of Bulger Cadillac-Oldsmobile, Inc. (defendant-appellee) to the used car lot by one of Bulger’s salesmen, Paul Wright. Mr. Wright showed an Oldsmobile Delta 88 to Mrs. Bender and proceeded to explain various aspects of the automobile to her. In order to better point out the backseat legroom to her, Mr. Wright reached over to open the back door on the passenger side. Mrs. Bender testified up to that point in time she had been walking “kinda sideways” between the Oldsmobile and another auto. However, Mrs. Bender was standing in a position which required her to move before the door could be opened, and as she stepped back to get out o£ the way of the opening door she fell backward over a bumper curb approximately eight inches high. The curb was unpainted and essentially the same color as the surrounding parking lot.
The issues outlined in the pretrial order were stipulated as follows: Did the plaintiffs fall occur as a result of the defendant’s negligence in failing to use ordinary care to keep the premises in a reasonably safe condition or to warn plaintiff of a dangerous condition with reference to the following particulars:
(1) Failure to paint a curb located in a parking lot; or
(2) Failure to advise plaintiff that the curb was present though not painted.
Is the plaintiff’s cause of action barred by contributory negligence in one or more of the following particulars:
(1) Failing to observe the curbing;
(2) Failing to watch where she was walking;
(3) Walking backward in an unfamiliar area; or
(4) Walking in a careless manner.
Orders entered at pretrial conference have the full force of other orders of court and they control the subsequent course of the action, unless modified at the trial to prevent manifest injustice. (K. S. A. 60-216; Brown v. Hardin, 197 Kan. 517, 419 P. 2d 912; and Freeto Construction Co. v. American Hoist & Derrick Co., 203 Kan. 741, 457 P. 2d 1.)
In sustaining Bulger’s motion for a directed verdict the trial court specifically found:
", . . there is no evidence to show these parking curbs . . . were negligently constructed or negligently maintained. . . .
“. . . there is no substantial competent evidence to submit to the jury concerning negligence on the part of the defendant, but that the evidence does show, as a matter of law, the plaintiff committed negligence which contributed to cause her injuries. . . .”
Whether the defendant should have painted the bumper curb a contrasting color to the pavement so as to make the premises reasonably safe for business invitees; and whether Mrs. Bender would have seen the curb had it been so painted as she was walking sideways between the cars, in our opinion, are questions to be answered by a jury on the evidence here presented.
Contributory negligence is ordinarily a question of fact and only when, as a matter of law, it can be said that plaintiffs conduct has fallen below the standard of a reasonably prudent man may the question be taken from the jury and determined by the court.
In ascertaining whether the plaintiff is contributorily negligent as a matter of law, the evidence and all inferences reasonably to be drawn therefrom must be accepted as true and considered in the light most favorable to plaintiff. If the facts, so viewed, be such that reasonable minds might reach different conclusions therefrom, the issue of contributory negligence must go to the jury. When the facts are in dispute or different inferences may be drawn from the facts, the existence of negligence is a question for the jury. (Schenck v. Thompson, 201 Kan. 608, 443 P. 2d 298; Smithson, Executor v. Dunham, 201 Kan. 455, 441 P. 2d 823; Bingham v. Hillcrest Bowl, Inc., 199 Kan. 40, 427 P. 2d 591; Gardner v. Pereboom, 197 Kan. 188, 416 P. 2d 67; Newman v. Case, 196 Kan. 689, 413 P. 2d 1013; and Deemer v. Reichart, 195 Kan. 232, 404 P. 2d 174.)
The questions of defendants negligence and plaintiff’s contributory negligence should not have been taken from the jury. Accordingly, the judgment of the lower court is reversed and the case is remanded for further proceedings consistent with this opinion. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in an ad valorem tax case from an order of the district court of Pawnee County, Kansas, upholding an order of the State Board of Tax Appeals determining the statewide 1969 ad valorem assessment of the appellant’s interstate natural gas pipeline operating property located in Kansas.
The underlying question on appeal is whether the assessment of the appellant’s operating property in Kansas should be invalidated on the ground that the order of the Board of Tax Appeals is unreasonable, arbitrary or capricious.
The interstate gas pipeline and distribution property of Northern Natural Gas Company (appellant) located in twenty-six Kansas counties, including Pawnee County, Kansas, was initially assessed by the Director of Property Valuation (hereafter the Director) in the amount of $67,528,850 by his order dated May 15, 1969. The foregoing valuation and assessment was appealed by Northern to the Board of Tax Appeals (hereafter the Board) pursuant to authority granted by K. S. A. 74-2438. On the 31st day of July, 1969, the Board heard Northerns appeal and on the 20th day of August, 1969, affirmed the Directors assessment. In so doing, the Board adopted the same justifiable value and assessment that had been made by the Director.
Thereafter, pursuant to K. S. A. 1970 Supp. 74-2426 (effective April 25, 1969), Northern appealed to the district court of Pawnee County from the Board’s order approving the valuation and assessment of the Director on the ground that the order was “unreasonable, arbitrary or capricious.”
Before the case could be heard in the district court, Northern’s first half of the 1969 ad valorem taxes fell due. Northern paid these taxes under protest and duly and timely commenced refund actions pursuant to K. S. A. 79-2005 in each of the twenty-six counties in which its Kansas properties were located. One of these actions has been tried on the merits and appealed to this court; another has come to the court on a procedural point. They have been considered and determined in connection with this appeal and should be read in conjunction herewith. The Rice County action, determined on the merits, is reported in Northern Natural Gas Co. v. Williams, 208 Kan. 407, 493 P. 2d 568. The Clay County action, determined on a procedural point, is reported in Northern Natural Gas Co. v. Bender, 208 Kan. 135, 490, P. 2d 399.
Two other related cases should be studied in connection with this opinion. They are Panhandle Eastern Pipe Line Co. v. Dwyer, 207 Kan. 417, 485 P. 2d 149; and Panhandle Eastern Pipe Line Co. v. Herren, 207 Kan. 400, 485 P. 2d 156.
The case at bar was tried in the district court on the 18th day of March, 1970, and the trial court after confining its consideration of the matter to the record made before the Board, and certain other matters of which the Board admittedly had judicial knowledge, on the 30th day of July, 1970, found specifically and generally against Northern and denied Northern’s appeal.
Northern’s post-trial motions assigned as a ground for reconsideration the discovery of substantial, material evidence not available at the time of the hearing before the Board, whereby it attempted to pinpoint the fraud, or its equivalent, involved. It is Northern’s contention that this newly discovered evidence, consisting of the deposition of the Director’s utility appraisal expert, Mike Gillgannon, conclusively demonstrated that the Board did not follow the statutory mandates in arriving at Northern’s justifiable value, but rather determined the justifiable value of Northern’s operating property in Kansas to be the amount of the original cost undepreciated, and from such predetermined figure worked back by giving lip service to the statutory factors listed under K. S. A. 1968 Supp. 79-503, and manipulating the weight given to alleged indicators of value.
Upon hearing the post-trial motions the trial court withdrew its original order and reconsidered the matter. Contrary to its initial rulings in the case, confining the evidence to the record before the Board, it granted Northern the right to take Gillgannon’s deposition and required the Director to produce documents for inspection, copying or photocopying. Questions concerning the admission of evidence under the code of civil procedure were passed until such time as the evidence was marshaled and offered. The trial court thus reversed its original position and allowed Northern’s motion for discovery at the post-trial stage of the proceedings. All evidence adduced by Northern as a result of the discovery was admitted in evidence by the trial court and is made a part of the record herein.
While the trial court admitted such evidence, it adhered to its original position and refused to consider the evidence marshaled on discovery upon the ground that the Board had not had an opportunity to consider such evidence at its hearing. In this respect the trial court said:
"... I am going to exercise my right and prerogative to not consider anything whatsoever in this appeal that may be disclosed by your discovery, that the Board of Tax Appeals did not consider. In other words, I am sticking to my original tenet, that I don’t think the Board of Tax Appeals should be considered to be acting in an arbitrary, capricious, discriminatory maimer when it was not given an opportunity to consider evidence. . . .”
The foregoing ruling of the trial court raises a procedural point asserted by the appellant which commands our attention.
This court has consistently adhered to the principle that the assessment and valuation of property are administrative functions, not judicial ones, and that courts will not substitute their judgment for that of the assessing authority in the absence of fraud, corruption or conduct so oppressive, arbitrary or capricious as to amount to fraud. This principle has been based upon the considerations of constitutional law, on the nature of the assessment and valuation functions, and on an inherent lack of power in courts. (Mobil Oil Corporation v. McHenry, 200 Kan. 211, 436 P. 2d 982.)
The State Board of Tax Appeals is the highest administrative tribunal established by law to determine controversies relating to assessments of property for ad valorem tax purposes. (Mobil Oil Corporation v. McHenry, supra.)
The statute here applicable, K. S. A. 1970 Supp. 74-2426, provides in part:
“[1] Whenever the board of tax appeals shall enter its final order on any appeal, said board shall make written findings of the fact forming the basis of such determination and final order and such findings shall be made a part of such final order. [2] Within ten (10) days after its decision the board shall mail a copy of its order by registered or certified mail to the person, firm, coiporation or association who was a party to such appeal. [3] Within thirty (30) days after the mailing of the final order of the board, any party to such appeal may appeal to the district court of the proper county. [4] 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 unless such order is unreasonable, arbitrary or capricious: . . .
“. . . [5] Appeals from any final order made by the board as to ad valorem tax liability shall be to the district court of the county in which the property involved is located, or if located in more than one county, then to the district court of any county in which any portion of the property is located. . . . [6] The appeal shall be taken by filing, with the clerk of the district court of the proper county, a written notice stating that the party appeals to the district court and alleging the pertinent facts upon which such appeal is grounded. [7] Upon filing of the notice of appeal, the director shall be deemed to be a party to such appeal, and the clerk of the district court shall docket the cause as a civil action, and shall forthwith and without praecipe issue summons and cause the same to be served upon the director, in accordance with the manner now provided by law in civil cases. [8] Jurisdiction to hear and determine such appeals is hereby conferred upon the district courts of this state. Such an appeal shall be heard as an equity proceeding, and shall proceed as an original action. Trial may be had or any order made in term or vacation.
“[9] The district courts are empowered to apoint referees, either standing or special, to hear the evidence and recommend findings of fact and conclusions of law. The transcript of the proceedings had at the hearing before the board of tax appeals may be admissible in evidence . . . [10] In hearing and considering any such appeal, the court shall not enforce or give effect to any rule or regulation which it shall find to be unreasonable, arbitrary or capricious." (Emphasis and numbers in brackets are added to facilitate further discussion.)
Despite the provisions in 74-2426, supra, making the Director a party to an appeal from an order of the Board (No. 7), it is the order of the Board which is the subject of review in the district court on appeal (Nos. 3 and 4). By statute the State Board of Tax Appeals has no capacity or power to sue or be sued. (K. S. A. 1970. Supp. 74-2433; see, also, Cities Service Oil Co. v. Kronewitter, 199 Kan. 228, 428 P. 2d 804.) (The order of the trial court making the Board a party defendant, notwithstanding; and the Board’s refusal to enter an appearance are inconsequential.) The Board’s decisions are administrative in nature, and are subject to limited review just as decisions of other administrative tribunals. This is clearly the import of. the provision in 74-2426, supra, authorizing appeal to the district court from a final order of the Board approving an assessment of the Director on the condition that the order be “unreasonable, arbitrary or capricious” (No. 4). The provisions (No. 8) conferring jurisdiction upon the district courts to hear such appeal as an equity proceeding, and to proceed with such hearing as an original action do not detract from this interpretation. The limited review of an administrative decision of the State Board of Tax Appeals in an ad valorem tax case in the district court was referred to in Mobil Oil Corporation v. McHenry, supra, as an equity proceeding at page 227 of the official report where Symns v. Graves, 65 Kan. 628, 70 Pac. 591, was quoted. The mere fact that the statute authorizing appeal refers to the proceeding in the district court as an original action (No. 8) does not broaden the scope of review or change the nature of the proceeding. This is clearly the thrust of Lauber v. Firemens Relief Association, 202 Kan. 564, 451 P. 2d 488; and Rydd v. State Board of Health, 202 Kan. 721, 451 P. 2d 239.
It may summarily be stated, therefore, on the facts here presented 74-2426, supra, authorizing an appeal from an order of the Board of Tax Appeals to the district court, must be construed as authorizing an appeal from an order of an administrative tribunal, in accordance with prior decisions of this court, on the limited issue as to whether the order of the Board appealed from is “unreasonable, arbitrary or capricious.” In hearing and considering such appeal the district court is admonished that it shall not enforce or give effect to any rule or regulation which it shall find to be unreasonable, arbitrary or capricious (No. 10).
An attempt has been made by this court to construe statutes authorizing appeals from the decisions of various administrative agen cies, boards and tribunals of the state to the district court with some consistency in the area of administrative practice and procedure. In Keeney v. City of Overland Park, 203 Kan. 389, 454 P. 2d 456, the court observed:
“Over the years, the scope of judicial review of actions by administrative bodies had been of perplexing concern to the bench and bar of this state. The confusion has apparently arisen because of the creation of an ever increasing number of administrative agencies, boards and tribunals, each with its own peculiar statutory provisions. The present case, like others reaching this court recently (see, e.g., Rydd v. State Board of Health, supra [202 Kan. 721, 451 P. 2d 239]; Lauber v. Firemen’s Relief Association, supra [202 Kan. 564, 451 P. 2d 488]; Kansas State Board of Healing Arts v. Foote, supra [200 Kan. 447, 436 P. 2d 828, 28 A. L. R. 3d 472]; Board of County Commissioners v. Brookover, 198 Kan. 70, 422 P. 2d 906; Moyer v. Board of County Commissioners, supra [197 Kan. 23, 415 P. 2d 261]; Lira v. Billings, 196 Kan. 726, 414 P. 2d 13), clearly demonstrates the need for legislation providing for greater uniformity in the areas of administrative practice and procedure and judicial review of administrative decisions.” (p. 395.)
In Keeney the district court, after noting that a transcript of the hearing before the city council in a zoning matter was available, and apparently relying on our decision in Bodine v. City of Overland Park, 198 Kan. 371, 424 P. 2d 513, ruled that the transcript before the city council would be admissible in evidence, and further, that the court would confine itself only to evidence relating to the matters heard by the city governing body along with any exhibits or documentary evidence that were likewise submitted and considered by the council in making its decision. It was said, however, the district court misconstrued our decision in Bodine with respect to what evidence may be considered on appeal to the district court from the decision of an administrative tribunal. In Keeney the court said:
“The rules of evidence (Art. 4) of the new code of civil procedure apply to the proceeding in district court. (Bodine v. City of Overland Park, supra [198 Kan. 371, 424 P. 2d 513].) These rules recognize as a fundamental principle that the primary test of admissibility of evidence is its relevancy to the issue in dispute, and that all relevant evidence is admissible unless limited by the various exclusionary rules. (See, Gard, Kansas Code of Civil Procedure, Annotated, §60-407, pp. 370, 371.) Thus, a district court, in determining the reasonableness of the action of a city governing body, is not necessarily limited to those matters considered by the city fathers. Within the framework of issues made up by the pleadings or at pretrial conference, the court may receive and consider any evidence relevant to the limited question of reasonableness. The test of relevancy should not depend on the availability of a full and complete transcript of the proceedings before the city governing body. In actual practice, the proceedings may or may not be recorded. If a record is made, as it was here, it is relevant and admissible in the district court. Parties attacking the reasonableness of an ordinance should not be precluded from the presentation of relevant evidence showing unreasonableness, even though such evidence was not presented to the governing body. This is not meant to imply that the hearing in district court should be a retrial on the merits of the zoning application, irrespective of whether or not a record was made of the city council’s proceedings; neither does it imply that a party may lie in wait and ambush the other side at the district court hearing. The district judge remains armed with his usual discretion in admitting or rejecting evidence, and his rulings will not be disturbed unless substantial rights of a party are thereby affected. (See, Bodine v. City of Overland Park, supra.)” (p. 394.)
On the hearing of an appeal in the district court from an order of the State Board of Tax Appeals, the provisions of 74-2426, supra, authorizing the district court to appoint referees to hear the evidence, and further reciting that the transcript of the proceedings had at the hearing before the Board of Tax Appeals may be admissible in evidence (No. 9), inferentially indicate the legislative intent of the statute to be in accordance with the rules stated in Bodine v. City of Overland Park, supra; Rydd v. State Board of Health, supra; and Keeney v. City of Overland Park, supra.
Therefore, in construing 74-2426, supra, and adhering to our prior decisions, we hold the rules of evidence (Art. 4) of the new code of civil procedure apply in the trial of an ad valorem tax action brought to the district court by an appeal pursuant to 74-2426, supra, and the district court may receive and consider any evidence relevant to the limited issues presented upon review of the administrative order or decision.
Board of County Commissioners v. Brookover, 198 Kan. 70, 422 P. 2d 906, upon which the trial court relied, must stand on its own peculiar facts. There the Board of County Commissioners of Shawnee County was denied injunctive relief in an action against the State Board of Tax Appeals. The State Board of Tax Appeals on complaint of a resident taxpayer had previously directed the Board of County Commissioners to reappraise all Shawnee County real estate subject to a general property tax, uniformly and equally at thirty percent of its justifiable value pursuant to K. S. A. 79-1439. (Note the Board was not sitting as an appeal board.) A complete record was made before the administrative board at a hearing, where all parties had a full opportunity to present their evidence, and the resulting order of the Board was challenged in the district court because it was not supported by the evidence and constituted an act that was arbitrary, capricious, oppressive, illegal and so grossly contrary to public interest as to constitute constructive fraud. On such issue the court said bad faith was not indicated by evidence which was not before the Board for consideration at the time its decision was made. The Board of County Commissioners there asserted an extraordinary legal remedy because no remedy by appeal from such an order was available. By amendment, effective April 25, 1969, 74-2426, supra, authorizes an appeal, on the facts here presented, from the Board’s decision in an ad valorem tax matter appealed to the Board, and this court is called upon to construe the provisions authorizing an appeal of this nature.
Accordingly, we conclude the trial court should have considered the deposition of Gillgannon and other documentary evidence discovered by the appellant in its determination of the limited issue before it. The evidence excluded was clearly relevant and went directly to the issue presented in the trial court. This is not to say the trial court was required to give such evidence credence, in whole or in part.
The foregoing infirmity does not, however, preclude further review on appeal. All of the evidence presented to the Board which the trial court considered (the transcript, the exhibits and documentary matters of which the Board had judicial knowledge), and all of the evidence which the trial court refused to consider on appeal from the order of the Board in this case (the deposition of Gillgannon and his working papers) was documentary in form. This court has recognized that under certain circumstances when the evidence is written, documentary in character, or in the form of depositions or transcripts its duty is to decide for itself what the facts establish, substantially as it would in an original case. (Boese v. Crane, 182 Kan. 777, 324 P. 2d 188; Watson v. Dickey Clay Mfg. Co., 202 Kan. 366, 450 P. 2d 10; Thompson v. Thompson, 205 Kan. 630, 470 P. 2d 787; and cases cited in these decisions.)
On this state of the record the Supreme Court will review the entire record to ascertain whether the order entered by the Board was “unreasonable, arbitrary or capricious,” substantially as it would in an original action. In this context the deposition of Gillgannon and other documentary evidence rejected by the trial court in reaching its decision will be reviewed along with the other evidence presented in the record to determine the matter.
Another procedural point is asserted by the appellant. It is claimed the Board in entering its final order on appeal from the decision of the Director of Property Valuation failed to make written findings of fact forming the basis of such determination and final order as required by 74-2426, supra (No. 1).
While the Board did make what was denominated written findings of fact, our analysis of its written findings discloses they are mere conclusions which fail to give the basis for its determination and final order. The findings should have been specific setting forth the factual basis for the Board’s determination. But on the record here we do not regard the failure of the Board to make basic findings of fact fatal to further review. (See Cities Service Gas Co. v. State Corporation Commission, 201 Kan. 223, 440 P. 2d 660.)
The appellant in its brief observes there is apparently no substantial dispute between the parties with respect to the facts. The appellant says the dispute is largely over the manner in which the undisputed facts are to be applied. The valuation and assessment of the appellant’s Kansas operating properties were determined from the rendition made by the appellant to the Director of Property Valuation as required by law. The rendition was identical to the annual report of the appellant submitted to the Federal Power Commission for the year ending December 31, 1968, and to the annual report of the appellant submitted to the State Corporation Commission for the same year. The method used in arriving at the valuation and assessment of the appellant’s property by the Director was presented in the form of evidence to the Board hearing the appeal from the Director’s order.
Inferentially the conclusions, denominated findings of fact made by the Board and entered as a part of its order approving the Director’s valuation and assessment, indicated the factual basis upon which the order was entered. The method by which the appellant’s Kansas operating properties were valued and assessed was the basis of the appellant’s attack in the trial court. There is nothing mysterious in the record concerning the factual basis for the Board’s order or the method by which the appellant’s Kansas operating properties were valued and assessed. Our review of the record will disclose and discuss it at some length.
Mike Gillgannon was the Director’s expert utility appraiser. His duties as an employee of the Property Valuation Department specifically involved the valuation of pipeline companies for the Di rector. In 1969 he appraised and assessed sixty-three companies. He appraised and assessed Northern’s property and his determinations made under the supervision of the Director were fully adopted by the Director. The Board heard Northern’s appeal and in approving the assessment of Northern’s property by the Director thereby adopted the same justifiable value and assessment that had been made by the Director.
It should be noted our review of the record is to determine whether the Board’s order is unreasonable, arbitrary or capricious; but since the Director by statute is a party to this appeal and not the Board, for whom the Director appears, our discussion will refer occasionally to the Director’s appraisal, assessment or action. These references should not be misconstrued to alter the fact that the court is in reality reviewing the order of the Board.
Northern says in its brief:
“. . . Northern’s position essentially is that the evidence establishes fraud or its equivalent, requiring a judgment setting the order of the Board aside and invalidating it.”
Northern is a “natural-gas company” engaged in the transportation of natural gas for resale in interstate commerce. Its pipeline and interstate gathering facilities are located in several midwestem states and are regulated by the Federal Power Commission (F. P. C.) under the Natural Gas Act (15 U. S. C. § 717, ei seq.). Under this regulation it is permitted to earn only a specific rate of return computed on a “rate base” which in general terms is referred to in the record as “original cost less depreciation.” This depreciation for all practical purposes here under consideration is 3?2% straight line annual depreciation. As of January 1, 1969, Northern’s effective F. P. C. rate of return was approximately 6.8% of the F. P. C. rate base. Within Kansas Northern, through its Peoples Division, is also regulated by the Kansas Corporation Commission, which permits Northern to earn only upon a rate base of the depreciated original cost of the property at a rate of 6.5%.
Northern’s annual report as of December 31, 1968, filed with the F. P. C. discloses a “Total Gross Utility Original Cost Investment” of $1,069,274,448. It also shows a deduction for “Depreciation, Amortization and Depletion” of $345,201,339, thus yielding an F. P. C. rate base (“Total Net Utility Original Cost Investment”) of $724,073,109. Of this total 20.89% is attributable to Kansas. Computed, this amounts to $148,755,008 or $151,258,872, depending upon the treatment of materials and supplies and gas stored underground outside Kansas.
The foregoing figures are undisputed and the parties concede that Northern’s properties must be appraised on a system-wide basis, allocating the proper portion to each state. The amount attributable to Kansas is undisputed.
Northern’s income statement for the year ending December 31, 1968, made in its annual return to the Director under the heading “Utility Operating Income” shows “Operating Revenues” of $302,-790,644 for the entire utility system. “Total Operating Expenses” are shown as $254,303,138. The calculation reveals “Net Operating Revenues” of $48,487,506. Among the “Operating Expenses” listed and deducted from “Operating Revenues” are: “Depreciation expense” of $35,223,898; “Income taxes” of $14,609,500; “Provision for deferred income taxes” of $425,000; and “Income taxes deferred in prior years — Credit” of $5,181,000.
The foregoing lines (numbered) in the annual return to the Director are specifically defined in the F. P. C. “Uniform System of Accounts.” The Director calls our attention to the F. P. C. regulations which permit recapture in cash from gross revenues of depreciation, amortization and income taxes (current and future) as being peculiar and explainable only as a part of a rate fixing format. The Director contends they should all be considered by an appraiser striving to determine the system-wide justifiable value.
From the rendition submitted to the Director by Northern, identical to the annual F. P. C. report, the Director’s determination of Northern’s Kansas justifiable value was $225,096,190. Applying a 30% rate to the determination of justifiable value resulted in an assessed valuation by the Director of $67,528,850.
Gillgannon used two approaches to arrive at his appraisal of Northern’s operating properties. All expert appraisal witnesses, including Northern’s, conceded the market data approach was not applicable to the appraisal of pipeline utility properties because there is no evidence of comparable sales. Gigantic public utilities of this nature are not sold in the open market. According to Gillgannon’s sworn testimony before the Board, supported by his working papers introduced as exhibits, he arrived at the justifiable value of Northern’s operating property in Kansas (1) by trending the cost of Northern’s property, and (2) by capitalizing the 1968 net utility operating income of Northern at 5.5%. He then assigned a weight of 85% to the trended cost figure, and 15% to the capitalized income indicator to arrive at a justifiable value of $225,096,190. This determination of justifiable value exceeded the original undepreciated cost of Northern’s property in Kansas by approximately $3,000,000. Gillgannon also recognized that the Director’s determination of justifiable value exceeded the “depreciated” original cost of Northern’s Kansas property by approximately $76,000,000.
The trended cost of Northern’s Kansas property was determined by Gillgannon as follows:
“Trended cost is synonymous with reproduction cost less depreciation. The process is started by using original cost as a base. This figure is trended or indexed according to the Handy Whitman Index. It is then depreciated by 3.5% and to this amount is added the amount of new investment or new plant for that year, representing the reproduction cost less depreciation for the current year. The process is simply repeated each year thereafter. The process was started with an original cost figure of 1947, which was the earliest data available to the Department. . . .
“For the first year (1947), the original cost total plant was indexed by one. In other words, the current trended cost cumulated was identical with the original cost for the year 1947. In 1948, according to the January edition of the Handy Whitman Transmission Index, there was an index value of 1.101. This index was applied to the previous year’s original cost of $32,101,573. This amount was depreciated 3.5% by applying the factor .965. To this was added the new plant, which had been added between the years 1947 and 1948. The resulting figure, which was a trended cost figure for 1948, was $38,568,853. In 1949, this last figure was indexed up by 1.056, which was the relative change in the Handy Whitman Index between the years 1948 and 1949. The resulting figure was again depreciated by .965 and to this was added the new plant of $5,916,575. This yielded a trended cost cumulated of $45,219,979. By use of this trended cost method, I arrived at a trended cost value of $232,101,655.”
It is to be noted the 3M% depreciation used by Gillgannon to arrive at his trended cost was calculated on the declining balance method.
A prior decision of this court in 1963 discussing trended original cost and cost of reproduction new less depreciation in determining proper standards of valuation for rate making purposes is Southwestern Bell Tel. Co. v. State Corporation Commission, 192 Kan. 39, 386 P. 2d 515.
The reason assigned by Gillgannon for using the reproduction cost less depreciation as distinguished from the “depreciated” original cost was stated as follows:
“A. Well, I feel that in most instances, the original cost is not as valid a measure, or at least has less validity as a measurement of value than reproduc tion cost less depreciation, for several reasons. Original cost, at the time of the new construction of a project, would probably be of primary value then, because it should represent the actual cost as of that moment, or that time, but as time goes on, the value of original cost, it diminishes, principally because of two factors that immediately start to work on this particular cost item; one is the effect of inflation, the other is the factor of depreciation, and this, over the years, would tend to minimize the validity of original cost in itself as a true measurement of value.
“Q. In using the reproduction cost new less depreciation, do you use a trending method, and if so, tell what it is, and how you use it?
“A. Well, this is the one particular factor I think that enhances the value of reproduction cost less depreciation measure over that of original cost, because of the trending factor that we use, which in itself, appreciates the property according to changes in today’s dollar, or it accounts, for the inflationary effects.”
Gillgannon’s testimony discloses the Property Valuation Department also used another trending index known as the Engineering News Record Index. These indices are generally accepted by engineers and tax commissions throughout the country and they supply a practical method to determine trended value. The yields result in negligible error. The Handy Whitman Index was designed primarily to apply to the electrical industry as well as to the gas industry. For that reason the Handy Whitman Index was given preference in trending the values in the gas pipeline industries.
Northern does not question the Handy Whitman Index used by Gillgannon. It merely questions the application of it to the facts in this case.
The Director calls our attention to evidence in the record which supports the use of the trended cost valuation approach and why this approach should be given great weight. Northern’s annual report for the year 1968 discloses that its earnings on common stock per share from operations increased from 1 cent per share in 1932 to $3.98 per share in 1968. Except for a few minor adjustments the earnings progressively increased year after year. In 1948 the earnings per share were $1.56, and the increase in earnings per share since that time has all occurred under F. P. C. regulation. In 1948 the market price of its common stock ranged from a high of 18% to a low of 12%. Each year since 1948 the market price of Northern’s common stock, considering only the high, progressively increased until 1965 when its high was 65% and its low was 57. In 1966 the high was 59% and the low was 41%. In 1967 the high was 54 and the low was 44%. In 1968 the high was 59% and the low was 48/1 Similarly, the dividends paid on common stocks per share since 1948 have increased gradually from 90 cents to $2.60 per share in 1968.
The gross value of Northern’s property in 1930 was $20,100,000. In 1948 it was $102,600,000, and in 1968 it was $1,270,700,000. Its miles of pipeline increased from 4,900 miles in 1948 to 25,200 miles in 1968. Its gas reserves estimated in trillions of cubic feet increased from 4.3 in 1948 to 14.6 in 1965. The system’s salable capacity in millions of cubic feet of gas daily increased from 437 in 1948 to 2,487 in 1968. The number of communities served by Northern in 1930 was 44; the number served in 1948 was 242; and in 1968 it had increased to 1,051 communities served. In 1968 alone 17 new communities were added which it served.
Northern’s record is clearly one of constant growth and by far fhe largest portion of this growth was accomplished under F. P. C. regulation.
In explaining the 5.5% capitalization rate Gillgannon testified before the Board:
“A. The cap rate, as established, was premised to a large extent on the cost of long term debt and total capital over a five-year average, and much of the capital structure of companies today, I believe, represents old term debt, much of it at two and a half percent, four percent, and so forth. And this cap rate actually represents capitalization of net income with depreciation extracted from that net income, so in reality, it is a cap rate representing only return on investment, and not return of investment, so if there was an allowable in there for return of investment, it would be a higher rate. I capitalized the 1968 net operating income of Northern Natural.
“Q. For 1968?
“A. Yes. Well, I used that figure — now, there were three different computations of capitalized income, the five-year — I mean, the current — pardon me — ■ year, income capitalized, the three-year average capitalized, and the five-year average capitalized, and I think your question was, which one was used in making a final judgment, and it was the current net operating income capitalized.
“I think current income in most instances probably more accurately and realistically indicates the future income, or prospects of income.
“In my determination of a 5.5% capitalization rate, I had a five-year average return on equity of 5.74%, the five-year period being consecutively through 1967. The data was extracted for the most part from Moody’s, and the companies included Northern Natural Gas Company, Panhandle Eastern and Kansas Power and Light Company. Mr. Morford who was then Supervisor of Utilities was the one who made the choice of the companies and they were chosen because he considered them to be comparable. He did much of the research on it and I’m not sure of all the ingredients that went into it really. It is really true that I accepted a figure of 5.5% on the basis of studies made by somebody else.
“Q. What part of the study did you make?
“A. Well, I reviewed part of the material from Moody’s and I made some of the computations, and actually Mr. Morford made some of the computations, and actually Mr. Morford made the judgment as to the companies to use in the study. The study was made in mid-year of 1968. I think that’s a pretty good statement to make, because it was drawn out over a period of time. It wasn’t all done at one time.
“Q. (By Mr. Adams) Then you are using a study made in mid-year of 1968 to develop a cap rate for the purpose of capitalizing income as of January 1, 1969, is that correct?
“A. Well, that could be true, yes.
“The figure of 5.18% was based on the five-year average return on the total capital, over the same five-year period by Mr. Morford. The equity figure of 5.74% is really a price-earnings ratio.”
Immediately following the above testimony of Gillgannon before the Board counsel for Northern stated: “For the record, I have decided to release the Director, Ron Dwyer, from the subpoena. I don’t believe we will need his testimony.” Northern had subpoenaed Dwyer duces tecum. The subpoena directed him to produce “all of the documents, schedules, forms, writings, memoranda, assessment sheets, work papers, valuations, records, or other thing or things” pertaining to Northern’s 1969 valuation “that may show, or purport to show, the method or formula used by the State in determining the valuation and assessment of such property.”
Northern contends the original cost less depreciation of Northern’s property allocated to Kansas constitutes the ceiling beyond which a determination of value in the state of Kansas cannot be validly made. It is argued that until such time as the regulatory commissions involved allow a rate of return comparable to the current demand of the investor, the actual justifiable value of Northern’s property in Kansas must continue to be less than its original cost less depreciation.
Northern attempts to establish through its expert witnesses that neither the F. P. C. nor the Kansas Corporation Commission will consider any evidence of value whatsoever (for rate making purposes) except original cost less straight line depreciation, because this is the rate base upon which Northern is permitted to earn a return on its investment. Northern contends it is pointless to com- puts and unreasonable to consider reproduction cost less depreciation as an indicator of value for an F. P. C. regulated company.
It is interesting to note the position taken by the public utility in a rate case before the Kansas Corporation Commission where trended original cost and reproduction cost new less depreciation are asserted in the valuation of its property for rate making purposes. (See Southwestern Bell Tel. Co. v. State Corporation Commission, supra.)
Northern’s expert witness, Dr. Herbert B. Dorau, testified that currently and historically the F. P. C. has not allowed a fully adequate rate of return to Northern or to other similarly situated pipeline companies which would allow the return of combined cost of equity, cost of preferred stock and cost of long-term debt equal to presently demanded rates of return by prudent investors. He testified that the capitalization of income is ultimately the economic basis for the value of income producing property. He determined Northern’s net utility operating income for 1968 by adding the investment tax credit and interest charged to construction, which resulted in an adjusted utility operating income of $52,264,013. He capitalized this figure at the rate of 8.5%, resulting in a capitalized value of Northern’s utility property of $614,870,741. The portion allocated to Kansas was $128,426,498. In arriving at the 8.5% capitalization rate Dr. Dorau examined the primary money market, the bond market, the cost of preferred stock, and the common stock equity discount rates.
He testified that if a purchaser should happen to pay for Northern’s Kansas property the Director’s valuation in the amount of $225,096,190, there is no conceivable way under past and present policy of the F. P. C. that the purchaser could recover the excess over the original cost less depreciation of $151,258,872.
Northern’s other expert witness, Browley Travis, appraised Northern’s total system property in the amount of $681,098,000, and the Kansas portion thereof in the amount of $142,281,000. He arrived at this value by utilizing on a total system basis the original cost less depreciation of Northern’s property, the capitalization of its 1968 net utility operating income at 8.5%, and a computation of the value of Northern’s stock and debt for 1969. To this stock and debt indicator value he assigned only 10% weight, while giving 40% to original cost less depreciation and 50% to capitalized income. He testified that reproduction cost had no place in the valuation of a utility regulated by the F. P. C. and its use was unreasonable.
Before proceeding further it is necessary to have the applicable statutes in mind,
K. S. A. 79-422 provides that public utility property should be listed and taxed as is provided by law for real estate.
K. S. A. 79-501 provides for the valuation of nonexempt real property at its justifiable value in money.
K. S. A. 1968 Supp. 79-503 provides for the determination of justifiable value as follows:
“Justifiable value shall mean the value of real estate which is arrived at after applying factors hereinafter set forth.
“To arrive at the justifiable value of real property the assessor or appraiser shall actually view and inspect the property. The price at which real property would sell at auction, forced sale or any transaction in which personal elements were a factor regarding the sale price shall not be taken into consideration in determining the justifiable value. In determining the justifiable value of real property, the assessor or appraiser shall consider that value in money arrived at when the following factors or combinations thereof are considered:
“(a) The proper classification of lands and improvements;
“(b) the size thereof;
“(c) the effect of location on value;
“(d) depreciation, including physical deterioration or functional, economic or social obsolescence;
“(e) cost of reproduction or improvements;
“(†) productivity;
“(g) earning capacity as indicated by lease price or by capitalization of net income;
“(h) rental or reasonable rental values;
“(i) sale value on open market with due allowance to abnormal and inflationary factors influencing such values;
“(j) comparison with values of other property of known or recognized value; and
“(7c) valuations of land and improvements on the basis of the foregoing elements and such other elements as may be just and proper.
“It shall be unlawful to determine justifiable value of real property in any manner other than authorized and provided for in this section. Any person authorized to assess or equalize property shall consider class, location, productivity, rental values and capitalization.” (Emphasis added.)
K. S. A. 79-1439 (L. 1963, ch. 460, § 1) requires that all real and tangible personal property, which is subject to general property taxes, shall be assessed uniformly and equally at 30% of it justifiable value.
In determining the validity of assessments of real property for taxation, the essential question is whether the standards prescribed by 79-503, supra, have been considered and applied by taxing offi cials, or intentionally and grossly disregarded. (Garvey Grain, Inc. v. MacDonald, 203 Kan. 1, 453 P. 2d 59.) Compliance with the provisions of the statute is mandatory upon assessing office's i t assessing real property, but the factors or combinations thereof to be considered in determining justifiable value may not all be pertinent to a specific property. What factors apply depends on the individual type of property, after consideration has been given to all of the factors.
Northern contends the Director failed to consider the statutory factors: (d) depreciation, including physical deterioration or functional, economic or social obsolescence; (f) productivity; (g) earning capacity as indicated by lease price or by capitalization of net income; (i) sale value on open market with due allowance to abnormal and infiationary factors influencing such values; and (k) such other elements as may be just and proper.
From Northern s brief its greatest concern under 79-503 appears to be that the Director failed to apply and account for any economic obsolescence. Northern relies upon the testimony of its expert witnesses to the effect 'that the only cost indicator which made any sense to apply to the facts in this case was original cost less depreciation. (Note this factor is not specifically enumerated, but see [e].) It is argued to the extent that a reproduction of trended cost was computed exceeding the original cost less depreciation of the same property, it failed to deduct economic obsolescence resulting from regulation.
Economic obsolescence was defined in a New York case dealing with the assessment of real property in Piazza v. Town Assessor of Town of Porter, 228 N. Y. S. 2d 397, 16 A. D. 2d 863 (1962). The court there dealt with the definitions of functional and economic obsolescence. It said “functional obsolescence” with respect to the valuation of property for taxation is loss of value brought about by the failure or inability to deliver full service, and includes any loss of value by reason of shortcomings or undesirable features contained within the property itself and is a loss of utility and failure to function due to inadequacies of design and deficiencies in the property. The court said “economic obsolescence” with respect to valuation of property for taxation is a loss of value brought about by conditions that environ a structure such as a declining location or down-grading of a neighborhood resulting in reduced business volume.
Obsolescence in “A Dictionary for Accountants” (3rd Ed.), by Eric L. Kohler, is defined as:
“The loss in usefulness of an asset, occasioned by the approach to the stage of economic uselessness through progress of the arts; economic inutility arising from external causes. Obsolescence refers to disappearing usefulness resulting from invention, change of style, legislation, or other causes having no physical relation to the object affected. . . .” (Emphasis added.)
In Southeastern Bldg. Corp. v. Commissioner of Int. Rev., 148 F. 2d 879 ( 5th Cir. 1945), it was said:
“. . . It thus becomes apparent that while the rental value of the property fluctuated, its life is in no wise diminished, and to grant taxpayer the relief it here seeks would be the equivalent of aiding it to recoup fluctuation losses. Manifestly, the life of the property has many years to run, and it can be used throughout its normal life. The unprofitable nature of a business or the mere shrinkage in value of commodities is not a sufficient basis upon which to predicate an allowance for obsolescence. . . (p. 880.) (Emphasis added.)
Giving consideration to economic obsolescence consistent with its definition in the foregoing authorities and applying it to the facts in the case at bar, we cannot find that Northern is entitled to the economic obsolescence it claims. This finding is fortified by the phenomenal growth of Northern throughout the period of time it has been subjected to F. P. C. regulation.
Regulation by the F. P. C. must in the long run be regarded as flexible. The rate of return can be changed and the rate base can be changed. At some future time the F. P. C. rate base determined on the basis of original cost less 3K% straight fine annual depreciation may prove unrealistic and deny the utility the right to earn a fair and reasonable return on its investment. But where the plant and its facilities are rapidly expanding on a system-wide basis, and income taxes and other fringe benefits are deductible from operating revenues before calculating the permissible rate of return, the present F. P. C. formula may be functioning properly for rate making purposes. (Permian Basin Area Rate Cases, 390 U. S. 747, 20 L. Ed. 2d 312, 88 S. Ct. 1344; Re Lockport Light, Heat & Power Co. [1935] 12 P U R [N. S.] 413; Re Panhandle Eastern Pipe Line Co. [1954] 3 P U R 3d 396; 79 A. L. R. 2d 1134; and Warburton v. Warkentin, 185 Kan. 468, 345 P. 2d 992, 79 A. L. R. 2d 1114.)
The cases recognize a definite distinction between the valuation of public utility property for rate making purposes, determined pursuant to statutes applicable thereto, and the valuation of the same property pursuant to different statutes for ad valorem tax purposes. (See Southwestern Bell Tel. Co. v. State Corporation Commission, supra.)
It is apparent from the record the Director gave consideration to all factors enumerated in 79-503, and applied the pertinent factors. Gillgannon, after arriving at the current value of Northern’s property, took a 3/2% deduction for depreciation, amortization and obsolescence. This annual depreciation covered all types of depreciation, physical deterioration and obsolescence, both functional and economic.
The factors of productivity and earning capacity as indicated by capitalization of net income were applied by capitalizing the F. P. C. net operating revenues of Northern by 5/1%.
The factor of “sale value on open market with due allowance to abnormal and inflationary factors influencing such values” was considered and applied to the extent it was applicable. The parties conceded utility property on a system-wide basis was not sold in the open market, and thus no market data was available. But the value of Northern’s common stock as indicated by its listing on the New York stock exchange was applied in determining the 5/1% capitalization rate. The allowance for abnormal inflationary factors will be discussed later.
The “cost” approach to which the Director gave 85% weight was determined by using the accepted appraisal technique of “reproduction cost new less depreciation.” This approach applied the factor listed in 79-503 (e) “cost of reproduction or improvements.” Apparently Northern would like to ignore this factor.
The only other factor deserving comment is consideration of original cost. While original cost depreciated was the basis of Northern’s value for F. P. C. rate making purposes, for ad valorem tax purposes, it was considered but found to be inapplicable. The original cost was applied to the extent that it formed the basis for the trended cost. The explanation why Gillgannon relied more heavily on the trended value has been stated.
In 1969 the legislature enacted a new law for the valuation of the property, both real and personal, tangible and intangible, of all public utilities. (K. S. A. 79-5a04 [L. 1969, ch. 434, §4] effective January 1, 1970.) It was amended in 1971. (L. 1971, ch. 295.) The Director argues the valuation of Northern’s property followed precisely the policy subsequently adopted by the legislature in the new law.
The Director compared the justifiable value determined for Northern with values of other public utilities as disclosed by Exhibit “C”, which was introduced as an exhibit for the state at the hearing before the Board. Exhibit “C” shows the ratio of original assessment to original cost, to depreciated cost and to trended cost of ten gas pipeline public utilities. It shows the ratio of the original assessment to the original cost to be near 30% for all companies, varying less than one percentage point for all except one of the companies. This exhibit discloses the existence of a “bench mark” (hereafter discussed) in the State Department of Property Valuation used to check valuations of public utility properties to see that they are equalized and uniform. For the Kansas-Nebraska Natural Gas Company the ratio was 25.28%. This was occasioned by a reduction in the assessed valuation of this company by the old Board of Tax Appeals (See L. 1969, ch. 369), and of which Northern makes complaint on this appeal.
Another basic premise upon which Northern attacks the valuation and assessment is the capitalization rate used by Gillgannon and adopted by the Director in the valuation of Northerns Kansas properties. Gillgannon used a 5.5% while Northerns expert witnesses used an 8.5% capitalization rate. This higher capitalization rate was premised upon the theory that it was equal to the presently demanded rates of return by prudent investors. Northern argues that even Gillgannon admitted the cost of current money on January 1,1969, would be between 7h% and 8%%.
While each party attacks the capitalization rate used by the other, it is to be noted both Gillgannon and the expert witnesses for Northern applied their respective capitalization rates to the F. P. C. “Net Operating Revenue” of Northern as heretofore stated.
The 5/2% capitalization rate applied by Gillgannon has been fully discussed. In support thereof the Director argues the F. P. C. “Net Operating Revenue” is tax free, because all taxes, including income tax, have been taken out before determining the net figure. He also argues the capitalization rate actually represents capitalization of net income with depreciation extracted from it.
The extent to which fully depreciated property is still in use by Northerns utility system, resulting from accelerated depreciation, represents a return of investment to Northern over and above capital consumed. This is additional income and can be used for capital additions to the utility system.
On this point Justice Hughes in Lindheimer v. Illinois Tel. Co., 292 U. S. 151, 78 L. Ed. 1182, 54 S. Ct. 658, said:
. . As the allowances for depreciation, credited to the depreciation reserve account, are charged to operating expenses, the depreciation reserve invested in the property thus represents, at a given time, the amount of the investment which has been made out of the proceeds of telephone rates for the ostensible purpose of replacing capital consumed. If the predictions of service life were entirely accurate and retirements were made when and as these predictions were precisely fulfilled, the depreciation reserve would represent the consumption of capital, on a cost basis, according to the method which spreads that loss over the respective service periods. But if the amounts charged to operating expenses and credited to the account for depreciation reserve are excessive, to that extent subscribers for the telephone service are required to provide, in effect, capital contributions, not to make good losses incurred by the utility in the service rendered and thus to keep its investment unimpaired, but to secure additional plant and equipment upon which the utility expects a return.” (pp. 168, 169.) (Emphasis added.)
The record shows compressor stations of Northern at Clifton, Mullinville, Bushton and Sublette, Kansas, to be fully depreciated, yet still in operation. (Total F. P. C. depreciation occurs in slightly over 28M years.) Their original cost was approximately $47,265,000 total. Under Northern s theory this property has no value for tax purposes, but the Director contends it is producing income and has a value which is subject to ad valorem taxation.
The Director contends the 5)1% capitalization rate was comparable to the 5%% yield on tax free United States government bonds on January 1, 1969.
The 8)2% capitalization rate asserted by Northern as the proper rate to be used in determining its justifiable value tends to take undue advantage of abnormal inflationary controls prevalent in our economy on January 1, 1969. At that time inflationary psychology had gripped our nation and it was of serious concern to the Federal Government. As a result of governmental policy the Federal Reserve Board in an effort to dampen inflation psychology of the people took action to force interest rates higher. A graphic illustration showing the result of action by the Federal Reserve Board may be shown from an exhibit in the record disclosing the bank prime loan rate from 1952 to 1969. As late as November 13, 1968, the bank prime loan rate was 61%. For a period of approximately two years prior to that date the rate fluctuated narrowly between 5)1 and 6%. But from November 13, 1968, the rate began to climb. On December 2, 1968, it was 6)2%; on December 18, 1968, it was 61%; on January 7, 1969, it was 7%; on March 17, 1969, it was 7M%; and on June 9, 1969, it was 850.
It is apparent the legislature by enacting 79-503, supra, intended to avoid the effect of abnormal and inflationary factors which influenced the values of real property subject to ad valorem taxation. It specifically stated in 79-503 (i) “sale value on open market with due allowance to abnormal and inflationary factors influencing such values.” By “due allowance” the legislature meant the valuation and assessing officials should discount such influences affecting the valuation of property for ad valorem tax purposes.
Giving due consideration to the foregoing observations and other evidence in the record, we find the application of a 5/2% capitalization rate to the F. P. C. net income of Northern to be within the realm of administrative judgment and not unreasonable, arbitrary or capricious.
In an effort to pinpoint the fraud or its equivalent which is attributed to the Board by Northern, it asserts the deposition of Gillgannon, the Director’s utility appraisal expert, which it contends conclusively demonstrates that the Board did not follow the statutory mandates in arriving at Northerns justifiable value, but rather determined the justifiable value of Northern’s operating property in Kansas to be the amount of the original cost undepreciated.
On the 20th day of May, 1970, the deposition of Gillgannon was taken under circumstances heretofore related. The trial before the Board of Tax Appeals was conducted on July 31, 1969. In his deposition Gillgannon testified he left the employ of the Kansas Property Valuation Department in February, 1970. In the deposition Northern was attempting to lead Gillgannon into giving certain answers which contradicted his previous testimony before the Board. Gillgannon had testified that the capitalization rate was a rate which a company would feel it had to have for the servicing of all debt; to return the amount of investment in the company over a period of years; and also to allow a reasonable profit to the company. He said he was never completely satisfied that the original depreciated cost was a proper base for determining ad valorem tax value and being guided by this thinking was inclined to give greater consideration to the reproduction cost less depreciation as a measurement of justifiable value. He then testified:
“Q. Why was more weight given to the cost approach than to the income approach?
“A. Well, actually I believe it was the thinking at the time that the cost approach was more truly representative of company value, but it had been a policy of the — and this is a policy that had been established over the years, that to arrive at and maintain uniformity of assessment and appraisal — or appraisal rather, that we adhere closely to or maintain a level close to original cost. And I might say that the arithmetic values that were applied to — if I were questioned on how I arrived at 85 per cent or 15 per cent, it was largely arbitrary in adjusting a final result of justifiable value so that they would closely approach 30 per cent of original cost.
“Q. Let me see if I understand your testimony. Are you saying that it was predetermined that the value of this company was going to be approximately 30 per cent of original cost for tax purposes in 1969 in the State of Kansas, and that Defendant’s Exhibits 13, 14 and 15 and Defendant’s Exhibit 12 are all prepared as an afterthought in an effort to justify the predetermined and arbitrarily arrived at value?
“A. Well, I don’t know that — Actually, I suppose it would be construed as predetermined, but really original cost has been over the years considered to be a reliable bench mark in an effort to maintain uniformity in the appraisal of various companies.
“Q. Let me ask this in another way. Are you saying that the work papers and the appraisal process which you went through in order to arrive at a determination of justifiable value of Northern Natural in 1969 in the State of Kansas and the assessment of Northern Natural’s properties did not actually play any real part in the fundamental or ultimate determination of that justifiable value which in fact was approximately 30 per cent of original cost?
“A. Well, I wouldn’t say that they didn’t — didn’t play a real part in it, but I will say that the — original cost was very influential in making a final judgment as to what the justifiable value would be.
“Q. I thought your testimony just a moment ago was that 15 per cent weight was given to tin. capitalized income approach and 85 per cent weight given to the cost approach which was a trended or a RCLD type approach, is that correct?
“A. This is true.
“Q. What weight in the determination of the justifiable value of this company was given to original cost?
“A. Well, there was no arithmetic weight given to it other than that 30 per cent of — or a figure close — or a relative value of 30 per cent of original cost is considered to be — had been considered over the years to be a reliable procedure in effecting a uniform appraisal for all companies.
“Q. This is to say then, if I am understanding you correctly, that you were directed by Mr. Dwyer to arrive at a justifiable value determination for Northern Natural Gas Company in 1969 which would approximate 30% of original cost?
“A. Well, I think possibly that that is putting in a fairly severe—
“Q. How would you put it?
“A. Well, I would say that it was just indicated that this would seem to be the better policy to follow, that is, to be guided by staying within the limits of or within the area of 30% of original cost and close to the prior year’s appraisal.
“Mr. Adams: . . . What I meant to say and what I now say is that as I understand your testimony there is a directive, whether it be an understood directive, whether it be in a more physical nature which would require employees of the Property Valuation Department and particularly yourself in connection with the assessment of Northern Natural Gas Company to arrive at an assessment value of Northern Natural Gas Company’s property in 1969 which would approximate 30% of original cost?
“A. Well, I am lost a little now. If I understand the last question I believe I would have to say that I don’t — I don’t recall that it was specifically stated that I actually was instructed to place the property of Northern Natural Gas Company specifically at 30% of original cost, but it was — it was — I can’t think of the proper term really to specify it. It was the feeling that in the appraisal of all of these companies that we would adhere to the previous policy of — of maintaining our appraisals in their relationship to — in a uniform relationship to original cost and generally speaking it was and had been accepted that we would — that 30% of original cost was good measurement to adhere to.
“Well, I’d dislike to say that it was — or accept that it was predetermined, but in view of the fact I guess it could be construed that way in view of the fact that there was a definite influence because there was a tendency, of course, not to deviate too far from 30% of the original cost or away from the benchmark.
“Q. Specifically, is this the reason why only 85% weight was given to the trended cost study?
“A. Well, I think that the answer to that would have to be yes in view— and I regret the fact actually that there was any arithmetic value given to either one of the indicators.”
On cross examination by counsel for the Director Gillgannon testified:
“Q. Now, do you know exactly what the Director did with this return?
“A. Not exactly, no. I imagine that he perused it and decided on whether there should be any—
“Q. At that point he exercised his judgment?
“A. His judgment, yes.
“Q. And are you stating under oath that you were directed at any time, impliedly or otherwise, to predetermine a value of original cost and then work toward that value? Are you saying that you were directed by anyone to do that?
“A. Yes, it was. As a matter of fact, there was a meeting in the Director’s office in which Mr. Jones and I were present — Mr. Rook (sic) was not present this particular day — and it was suggested that we not deviate notably from the previous year’s appraisal.
“Q. You see, that is not what I am asking you. I am asking you if— let’s make it even more specific, and I want this — a direct answer from you, yes or no. Has Mr. Dwyer at any time directed you to disregard other factors and to establish an original cost as a value of this company?
“A. The answer to that is no. That is—
“Q. Did Mr. Jones at any time direct you to disregard all other factors and to consider original cost only?
“A. No, Mr. Jones did not.”
From a study of Gillgannon’s testimony before the Board and a consideration of his testimony given by deposition, we cannot find the Board fraudulently predetermined that original cost was the value of Northern’s property, and that the Board worked backward by giving only lip service to statutory factors.
The Director maintains that original cost less depreciation, asserted by Northern, should not be used to reflect market value for Kansas ad valorem tax purposes. For many years the Director and his predecessors declined to be governed solely by regulatory body rate base findings in determining justifiable or fair market value. Greater weight has been given to reproduction cost less depreciation rather than rate base. The appraisal practice used for many years in the Department of Property Valuation by trending the original cost, which took into account both appreciation and depreciation as indicators to arrive at current market value on assessment date, brought the result in close proximity to the original cost figure in appraising public utilities, and as a result the original cost undepreciated had been considered a “bench mark.” This does not mean the final determination of value is original cost undepreciated. The record is replete with exhibits proving that many indicators of value were used and correlated in making the determination.
A situation of this nature was discussed in Nashville, C. & St. L. Ry. v. Browning, 310 U. S. 362, 84 L. Ed. 1254, 60 S. Ct. 968, where it was said:
“. . . Deeply embedded traditional ways of carrying out state policy, sucb as those of which petitioner complains, are often tougher and truer law than the dead words of the written text. . . . It is not the Fourteenth Amendment’s function to uproot systems of taxation inseparable from the state’s tradition of fiscal administration and ingrained in the habits of its people.” (pp. 369, 370.)
We do not find the recognition of a “bench mark” by the Property Valuation Department in the appraisal of public utility property for ad valorem tax purposes, resulting from many years of experi ence, to be objectionable or unlawful. The “bench mark” was indicated by the state’s Exhibit “C” introduced in evidence before the Board at its hearing on July 31, 1969, to show equalization and uniformity in the assessment of public utility properties similar to Northern’s property.
Considering the circumstances under which the deposition testimony of Gillgannon was taken, its credence is subject to discount, if it be construed as reflecting arbitrary action on the part of the Director or the Board. The Director exercises independent judgment in approving the valuation of property by personnel in his department, and the Board exercises its judgment anew and independent of the Director in approving the valuation and assessment of property. Whether the Board determines the matter of property valuation before it as an appeal board or as a board of equalization, it functions independently of the Director in matters of administrative judgment and decision. It is the order of the Board which is here for review.
The extent to which Gillgannon’s deposition testimony may be construed as having departed from his testimony before the Board subjects the probative value of his deposition testimony to impairment.
Northern contends the Kansas Constitution has been violated (Art. 11, §1) by the Director’s method of assessing Northern’s property at 30% of original cost, which Northern claims is fraudulent and intentionally discriminatory because it unconstitutionally classifies Northern and other natural gas companies separately from all other taxpayers.
Northern’s assertion on this point is premised upon its interpretation of Gillgannon’s deposition that the Director assessed Northern’s property at 30% of original cost. This assumption on Northern’s part is found to be without merit and as a result its argument on the point fails.
Northern’s property in accordance with the statutes heretofore cited was valued as real property, its justifiable value determined in accordance with the provisions of 79-503, supra, and it was assessed at 30% of its justifiable value. (K. S. A. 79-1439 [L. 1963, ch. 460, §1].) This is the basis upon which all nonexempt real property in the state of Kansas is valued and assessed. It makes for uniformity and equality in the rate of assessment and taxation.
Two gas pipeline utility companies, Natural Gas and Kansas- Nebraska Natural Gas Companies, were granted a reduction in their assessments by the old Board of Tax Appeals before it went out of existence on July 1, 1969. (L. 1969, ch. 369.) These isolated orders reducing utility assessments do not disclose a failure on the part of the Board to equalize, where an honest effort has been made in determining valuations and assessments on a statewide basis for public utilities in accordance with the statutory mandates. Evidence offered by Northern to show these reductions in assessment do not support its allegation that the new Board has been unreasonable, arbitrary and capricious because it did not give a similar reduction in assessment to Northern. Uniformity is maintained only by assessing property at 30% of its justifiable value in accordance with statutory mandates.
Northern contends that evidence of the local level of assessment in the various counties was improperly ignored. It argues that the Director’s order purports to assess Northern’s property at the rate of 30% of justifiable value. Northern asserts the evidence it adduced shows that all other real property in the various counties involved was being assessed at different and appreciably lower levels.
Beardmore v. Ling, 203 Kan. 802, 457 P. 2d 117, is cited for the proposition that:
“Uniformity in taxation implies equality in sharing the burden of taxation, and this equality cannot exist without uniformity in the basis of assessment as well as in the rate of taxation. . . .” (Syl. f 2.)
There the court held that an assessment ratio study made pursuant to statute was admissible in evidence as tending to establish the assessment ratio of real estate, even though it was not conclusive on the subject.
Evidence presented before the Board consisted of the 1968 sales ratio study indicating the level of assessment on January 1, 1969, in those twenty-six counties in Kansas where Northern’s property is located. The Real Estate Assessment Ratio Study shows two counties with a ratio of only 10% (Meade and Kiowa), one at 15% (Seward), one at 17% (Finney), and one at 11% (Gray). All of these counties with the exception of Gray County have reappraised and new higher assessments were to be expected in 1969. Apparently, Lincoln County has also reappraised in 1969. The assessments occasioned by the reappraisal in these counties were not available when this matter was heard by the Board in July, 1969. The average ratio for all other counties in which Northern has property is slightly over 21%. The evidence consisted not only of the ratio study itself, but of the testimony of Dr. Francis Woodard responsible for the preparation of the study under the supervision of the Director. Northern then introduced exhibits showing not only the level of assessment in each county but also what the proper assessment in each county would be upon the basis of the appraisals made by its two expert appraisers. Needless to say, had the Board applied the formula asserted by Northern it would not have assessed Northern’s property at 30% of justifiable value in each of the twenty-six counties. The rate of assessment in each of the twenty-six counties would have been different.
The Board found:
“. . . The Ratio Study relates assessment levels with limited sales, but does not afford direct comparison with all elements included in justifiable value in accordance with K. S. A. 79-501 and 79-503, as amended, . . .”
The Board further found that Northern’s property is not assessed relatively higher than other comparable property in Kansas.
The same point was presented to this court in Panhandle Eastern Pipe Line Co. v. Dwyer, 207 Kan. 417, 485 P. 2d 149, involving the state-wide assessment of Panhandle’s pipeline property in the state of Kansas. In that opinion, to which we adhere, this court said:
“We are forced to conclude that the ratio study standing alone is not conclusive as to value. In Cities Service Oil Co. v. Murphy, 202 Kan. 282, 447 P. 2d 791, we held:
“ ‘Ratio studies provided for by K. S. A. 79-1436 are proper evidence of justifiable value but such evidence, standing alone, is not conclusive in establishing a basis for comparison in determining uniformity of values for assessment purposes.’ (See, also, Beardmore v. Ling, 203 Kan. 802, 457 P. 2d 117.) It might also be suggested that the 1969 legislature passed a law, (K. S. A. 79-503 [/] not made applicable to this case, stating:
“ ‘. . . The ratio study shall not be used as an appraisal for appraisal purposes/
“It would at least indicate the legislature was not out of harmony with the decisions of this court.
“There are too many speculative elements involved and too few properties are subject to sale for the ratio study to be relied on for appraisal purposes. It may, however, serve as a signal that a reappraisal is in order.” (p. 423.)
Northern Natural Gas Co. v. Williams, 208 Kan. 407, 493 P. 2d 568, discusses and considers the ratio study in more detail.
On the record here presented we hold Northern has not by the ratio study or the testimony of Dr. Woodard presented sufficient evidence of any quality to justify a reduction of its assessment in each of the various counties where the ratio study purports to disclose an assessment at less than 30% of justifiable value.
Finally, Northern contends the order of the Board violates the Fourteenth Amendment to the United States Constitution on the ground that grossly excessive valuation of property for ad valorem tax purposes contravenes the due process clause, and requires no showing of discrimination. (Citing Great Northern Ry. v. Weeks, 297 U. S. 135, 80 L. Ed. 532, 56 S. Ct. 426.)
Northern asserts the right to equal treatment under the equal protection clause of the Fourteenth Amendment to the United States Constitution and Article 11, Section 1 of the Constitution of the state of Kansas.
The whole argument proceeds on the assumption that the valuation of its property was grossly excessive for ad valorem tax purposes. On this point, however, Northern has failed to sustain the burden of proof to show that its property has been valued excessively.
In conclusion we hold the order of the Board dated August 20, 1969, appealed from herein, was not unreasonable, arbitrary or capricious. The order was lawful in all respects and the Board applied the required statutory standards of value to Northern’s Kansas operating property. The order was based upon and in accordance with the evidence before it. The validity of the order was not shaken by the deposition testimony of Gillgannon, which was taken after his services for the state were terminated, and after the hearing before the Board. A thorough review of the record discloses no evidence that the Board has acted under the influence of improper motive, or acted in an unreasonable, arbitrary or capricious manner. The variation in valuations presented in the record stems basically from the difference of opinion of the witnesses and the contending parties to the litigation. The Board’s action in the valuation and assessment of Northern’s Kansas operating property falls well within the realm of administrative judgment.
The judgment of the lower court is affirmed.
This opinion was approved by O’Connor, J., prior to his resignation from the court.
Prager, J., not participating. | [
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The opinion of the court was delivered by
Foth, C.:
This case represents another round in the perennial struggle for priority between the surety on the performance bond of a defaulting building contractor and a bank which has advanced money to the contractor on the faith of an assignment of the contract proceeds. The new element here is the presence of the Uniform Commercial Code (UCC), K. S. A. Ch. 84. The primary question we are called upon to decide is the effect, if any, the UCC has on the priorities which would otherwise obtain — although there is some preliminary dispute as to just what those priorities should be.
The facts were stipulated below and are not in dispute.
The L. R. Foy Construction Co., Inc., (“Foy”) of Hutchinson, Kansas, was awarded a contract in January, 1967, to construct a student dormitory at Chadron State College, Chadron, Nebraska. (The parties are in agreement that Kansas law should control.) Foy’s role in this litigation is that of stakeholder, a role assumed in most cases of this character by the owner.
On January 25, 1967, Foy entered into a subcontract with Mid-Continent Fireproofing and Insulating Co., Inc. (“Mid-Continent”) to furnish and install insulation and wall board for a contract price of $13,451.50. The contract called for periodic partial payments on approved estimates, with 10% as the retained percentage pending completion. Mid-Continent agreed to pay for all labor and materials and hold Foy harmless from any claims arising out of its failure to comply with the terms of the contract. In the event there arose any claim for which Foy or the owner “might become liable,” Foy was entitled to retain from moneys then or thereafter due Mid-Continent enough to indemnify itself. Mid-Continent was required to furnish a bond or bonds “guaranteeing performance and payment of labor and material bills.”
The required bond was furnished by the appellant United States Fidelity and Guaranty Company (the “surety”) on January 31, 1967. By its contract the surety bound itself to Foy on the condition that Mid-Continent faithfully perform its subcontract, which was incorporated by reference. No question is raised but that the surety’s guarantee included Mid-Continent’s contractual obligation to pay laborers and materialmen — i. e., that it was a “payment” bond as well as a “performance” bond.
The relevant default provision was that, if the surety should be required to remedy a default, so much as might be required to reimburse the surety for its outlays should be paid to the surety out of the balance of the subcontract price then in the hands of Foy “at the times and in the manner as said sums would have been payable to [Mid-Continent] had there been no default under the subcontract.” This provision is considered by the parties as a contractual assignment of Mid-Continent’s interest in its contract with Foy to secure the surety — albeit a conditional assignment. The failure of the surety to file under the UCC the bond containing this “security agreement” is appellee’s most strongly urged claim to priority in this case.
In customary fashion, Mid-Continent went contract-in-hand to the appellee, The First State Bank of Salina (the “bank”) to secure a line of credit to carry out its contract. There, on February 13, 1967, it executed a security agreement, assigning to the bank all its rights under its contract with Foy, to secure any and all obligations it might then or thereafter have to the bank. The bank gave Foy timely notice of the assignment, requesting that Foy make any payments under the contract payable jointly to Mid-Continent and the bank. It is stipulated that the bank’s purpose in agreeing to extend credit (apart from its 7% interest) was to enable Mid-Continent to pay for materials and labor needed to fulfill the contract with Foy.
Mid-Continent had had prior dealings with the bank. Almost a year before, on April 13, 1966, the bank had lent money to Mid-Continent in an unrelated transaction, and had duly filed a “financing statement” under the UCC covering Mid-Continent’s “Accounts receivable for goods sold or for services rendered together with equipment used by the business.” It is agreed that this financing statement was broad enough to include the “security agreement” (assignment) of February 13, 1967, covering as an “account receivable” Mid-Continent’s interest in the Foy contract.
The bank, relying on its security agreement backed by the filed financing statement, commenced lending money to Mid-Continent on February 28, 1967, taking a series of notes. The trial court concluded that the bank had an “attached” security interest in Mid-Continent’s contract with Foy as of that date, and that conclusion is not contested. (We note here that a creditor’s security interest “attaches” under UCC 9-204 (1) when “value is given, and the debtor has rights in the collateral.” As to the collateral, the proceeds of the contract, the debtor Mid-Continent acquired “rights” as and when it performed. This was certainly no earlier than February 28,1967.)
In due course Mid-Continent defaulted; Foy terminated its contract with Mid-Continent and completed the work itself. After deducting its cost of completion from the balance of Mid-Continent’s contract price Foy holds $3492.24 which would have been due Mid-Continent had it not defaulted. This is the prize for which the parties here are competing.
The surety was presented with and, on February 2, 1968, paid claims of materialmen who had furnished Mid-Continent with material for the project which, by our calculation, amounted to $7409.19, taking assignments of the materialmen’s claims and remedies. The bank lent Mid-Continent money at various times from February 28 to June 23, 1967, and after deducting payments on account, claims a balance due it as of July 9,1967 of $2647.40.
The surety sued Foy for the balance in Foy’s hands, asserting its right of subrogation, and joined the bank as a potential claimant to the fund. Foy tendered the money in its hands into court; the bank in its answer asserted its assignment (security agreement) as a lien with priority over the claim of the surety.
The issues thus joined together with the facts, stipulated in accord with the foregoing recitation, were submitted to the trial court for a decision as a matter of law. In a memorandum of September 24, 1969, it recited:
“This matter is before the Court on a stipulation of facts between the plaintiff, United States Fidelity & Guaranty Company, and the defendant, First State Bank of Salina. The sole issue is whether or not the defendant bank has a prior interest to the funds held by defendant Foy by virtue of its security agreement of February 13, 1967, and financing statement of April 13, 1966, or whether the plaintiff has a prior lien on said funds by virtue of its rights of subrogation to the rights of Mid-Continent Fireproofing and the creditors whose materials were used on the job and paid for by the plaintiff.
“The matter has been ably briefed by both parties to the dispute.
“The court finds as follows:
“1. The financing statement filed with the Secretary of State by the defendant bank is sufficient to include the funds earned by contracts of Mid-Continent and constitutes notice that a security agreement may exist on the funds now in the hands of defendant Foy.
“2. From February 28, 1967, the defendant bank had an attached security interest in the contract rights of Mid-Continent with defendant Foy as amounts became due by virtue of performance by Mid-Continent.
“3. Materialmen are subject to the provisions of the Uniform Commercial Code.
“4. The surety bond of the plaintiff constituted an attached security interest under the Code at the time it paid bills of materialmen which was not perfected by filing of a financing statement.
“5. The materialmen who were paid by plaintiff were general creditors who could not defeat the attached security agreement of the bank.
“The Court concludes that the claim of defendant First State Bank of Salina is first and prior over the claim of plaintiff United States Fidelity & Guaranty Company.”
Nevertheless, the trial court on June 3, 1970, entered a “Pre-Trial Conference Order” in which it recited, inter alia:
“4. The remaining questions of law to be decided are as follows:
“A. Whether the plaintiff is subrogated to the rights of the creditors of Mid-Continent Fire Proofing and Insulation Company, Inc., whose materials were used and consumed in the construction of the job at Chadron State College and whose materials were paid for by the plaintiff pursuant to its surety bond.
“B. Whether the plaintiff is subrogated to the rights of L. R. Foy Construction Co., Inc.
“C. Whether the financing statement filed by defendant, First State Bank of Salina, was sufficient under the provisions of the Uniform Commercial Code.
“D. Whether the plaintiff was required to file under the provisions of the Uniform Commercial Code.
“E. Whether the rights of the plaintiff or the rights of the defendant, First State Bank of Salina, have priority with respect to the amount owed by L. R. Foy Construction Co., Inc., on the contract on Chadron State College.”
This order thus reopened some of the issues apparently decided by the September 24 memorandum, and interjected at least one new issue, i. e., the surety’s right to be subrogated to the position of Foy, as set out in subparagraph B. All issues were resolved in a journal entry of the same date in which the September 24 memorandum was incorporated by reference, and in which the court found generally that the bank had a first and prior right to the amount held by Foy for the account of Mid-Continent.
From this determination the surety has appealed, claiming error in several particulars. In essence, it urges that the trial court misconceived a surety’s right of legal or equitable subrogation, and misapplied the UCC both to the surety and to the various rights derived and asserted by it as a result of such subrogation.
Our first effort, then, is to determine the status of surety vis-a-vis bank, without regard to the UCC. Perhaps the leading authorities in this area are a series of cases decided by the United States Supreme Court involving government building projects, beginning with Prairie State Bank v. United States, 164 U. S. 227, 41 L. Ed. 412, 17 S. Ct. 142 (1896) and running through Pearlman v. Reliance Ins. Co., 371 U. S. 132, 9 L. Ed. 2d 190, 83 S. Ct. 232 (1962). This judicial saga was recounted in the latter case (in which the surety on a payment bond was claiming priority over the contractor’s trustee in bankruptcy to the retained percentage in the government’s hands). The Court said (371 U. S., at 137-8):
“In the Prairie Bank Case a surety who had been compelled to complete a government contract upon the contractor’s default in performance claimed that he was entitled to be reimbursed for his expenditure out of a fund that arose from the Government’s retention of 10% of the estimated value of the work done under the terms of the contract between the original contractor and the Government. That contract contained almost the same provisions for retention of the fund as the contract presently before us. The Prairie Bank, contesting the surety’s claim, asserted that it had a superior equitable lien arising from moneys advanced by the bank to the contractor before the surety began to complete the work. The Court, in a well-reasoned opinion by Mr. Justice White, held that this fund materially tended to protect the surety, that its creation raised an equity in the surety’s favor, that the United States was entitled to protect itself out of the fund, and that the surety, by asserting the right of subrogation, could protect itself by resort to the same securities and same remedies which had been available to the United States for its protection against the contractor. The Court then went on to quote with obvious approval this statement from a state case:
“ ‘The law upon this subject seems to be, the reserved per cent to be withheld until the completion of the work to be done is as much for the indemnity of him who may be a guarantor of the performance of the contract as for him for whom it is to be performed. And there is great justness in the rule adopted. Equitably, therefore, the sureties in such cases are entitled to have the sum agreed upon held as a fund out of which they may be indemnified, and if the principal releases it without their consent it discharges them from their undertaking.’ 164 U. S., at 239, quoting from Finney v. Condon, 86 Ill. 78, 81 (1877).
“The Prairie Bank Case thus followed an already established doctrine that a surety who completes a contract has an ‘equitable right’ to indemnification out of a retained fund such as the one claimed by the surety in the present case. The only difference in the two cases is that here the surety incurred his losses by paying debts for the contractor rather than by finishing the contract.”
As to tibe distinguishing feature noted in the last sentence quoted, the Court went on to observe that in Henningsen v. U. S. Fidelity & Guaranty Co., 208 U. S. 404, 52 L. Ed. 547, 28 S. Ct. 389, the distinction between a surety who performs and one who pays was obliterated, saying (371 U. S., at 139):
“. . . This Court applied the equitable principles declared in die Prairie Bank Case so as to entitle the surety to the same equitable claim to the retained fund that the surety in the Prairie Bank case was held to have. Thus the same equitable rules as to subrogation and property interests in a retained fund were held to exist whether a surety completes a contract or whether, though not called upon to complete the contract, it pays the laborers and materialmen. These two cases therefore, together with other cases that have followed them, establish the surety’s right to subrogation in such a fund whether its bond be for performance or payment. Unless this rule has been changed, the surety here has a right to this retained fund.”
The Miller Act, 40 U. S. C. § 270a et seq., requiring separate bonds for performance and payment, was held not to evidence a congressional intent “to repudiate equitable principles so deeply imbedded in our commercial practices, our economy, and our law as those spelled out in the Prairie Bank and Henningsen Cases.” (371 U. S., at 140.)
Finally, the Court dispelled any questions raised by dicta contained in United States v. Munsey Trust Co., 332 U. S. 234, 91 L. Ed. 2022, 67 S. Ct. 1599, by limiting its effect to the narrow holding that the government could exercise “the well-established common-law right of debtors to offset claims of their own against their creditors,” and thereby defeat a surety’s equitable claim to money in the government’s hands. (Munsey Trust had, however, extended the surety’s claim to earned but unpaid progress payments as well as the retained percentages.)
The result was (371 U. S., at 141):
“We therefore hold in accord with the established legal principles stated above that the Government had a right to use the retained fund to pay laborers and materialmen; that the laborers and materialmen had a right to be paid out of the fund; that the contractor, had he completed his job and paid his laborers and materialmen, would have become entitled to the fund; and that the surety, having paid the laborers and materialmen, is entitled to the benefit of all these rights to the extent necessary to reimburse it. . . .”
This holding is squarely applicable here, reading “Foy” for “the Government” and “Mid-Continent” for “the contractor.” While the holding itself would appear to subrogate the surety to the rights of all three — the Government, the laborers and materialmen and the contractor — three members of the Pearlman court concurred specially, putting their reliance on the right of the surety to stand in the shoes of the government, rather than in those of the laborers and materialmen it paid under what they read the majority rationale to be. Either way, the result is the same, and it is generally held that the surety may do both, as well as acquiring the rights of its principal, the contractor.
The First Circuit has referred to this as a “unique accumulation of subrogation rights,” serving to “induce a function that is neither ordinary insurance nor ordinary financing.” (National Shawmut Bk. of Boston v. New Amsterdam Cas. Co., 411 F. 2d 843, 845 [1st Cir. 1969].)
The function thus “induced,” that of guaranteeing completion of building contracts, is one which is vital both to government and to our economy, dictated by statute in the case of public projects and by prudence in the private sector. Rights are given to the surety, however, neither as a reward nor as an inducement, but because equity requires it. Those rights are described in the following language from National Shawmut Bk., supra:
“. . . But the surety in cases like this undertakes duties which entitle it to step into three sets of shoes. When, on default of the contractor, it pays all the bills of the job to date and completes the job, it stands in the shoes of the contractor insofar as there are receivables due it; in the shoes of laborers and material men who have been paid by the surety — who may have had liens; and, not least, in the shoes of the government, for whom the job was completed.” (Ibid.)
From our examination of the numerous authorities cited to us we are convinced that the foregoing represents the general rule, accepted overwhelmingly if not universally throughout the various jurisdictions in this country. No contrary decisions have come to our attention. Applying it here, we have the surety asserting the rights of Mid-Continent, of the materialmen, and of Foy. Mid-Continent’s claim is non-existent here, because of its assignment to the bank. The materialmen had their equitable claim upon the retained amounts. Henningsen, supra; Pearlman, supra. Foy had an equitable obligation to pay for material used in the project and for which it was compensated by the owner. In addition it had a right of set off under its subcontract with Mid-Continent, allowing it to apply any money in its hands otherwise due Mid-Continent to any claims for labor or material for which it or the owner “might become liable.”
As to the last point the bank argues that, since Foy’s prime contract is not in evidence, there is no showing that Foy was bound to pay Mid-Continent’s unpaid materialmen. In response to a similar contention it was said:
“. . . The government’s well established right to have the laborers and materialmen paid out of the unpaid progress payments or unpaid balance does not arise from any legal obligation to such suppliers but simply from its equitable obligation to those who provide it with labor and materials. United States v. Munsey Trust Co., 332 U. S. 234, 240-241, 67 S. Ct. 1599, 91 L. Ed. 2022 (1947); Henningsen v. United States Fidelity & Guaranty Co., 208 U. S. 404, 410, 28 S. Ct. 389, 52 L. Ed. 547 (1908); National Surety Corp. v. United States, 133 F. Supp. 381, 383-384, 132 Ct. Cl. 724 (1955), cert. denied sub nom., First National Bank in Houston v. United States, 350 U. S. 902, 76 S. Ct. 181, 100 L. Ed. 793 (1955); see Pearlman v. Reliance Insurance Co., 371 U. S. 132, 136-139, 83 S. Ct. 232, 9 L. Ed. 2d 190 (1962). We see no reason why that same equitable obligation to the laborers and materialmen should not exist on the part of the nongovernment owner, who receives the same benefit from those suppliers — construction work and materials — as did the government in the aforementioned cases. Moreover, the non-government owner, like the government, has an interest in seeing its suppliers paid so that the work necessary for completion of the contract can be done with minimum disruption and expense. . . .” (Framingham Trust Co. v. Gould-National Batteries, Inc., 427 F. 2d 856, 858 [1st Cir. 1970].) (Emphasis added.)
The same equitable obligation rests here on Foy, and on the owner, which was assumed is the state of Nebraska or one of its instrumentalities. (That obligation would also be sufficient, in our view, to make the “might become liable” clause of the subcontract operative, if that were needed to bulwark the surety’s claim.)
The bank suggests, however, that Kansas has deviated from the main course of American law and charted its own way in this area. Its chief reliance is on Deposit Co. v. City of Stafford, 93 Kan. 539, 144 Pac. 852; and Fidelity and Guaranty Co. v. City of Pittsburg, 115 Kan. 740, 225 Pac. 83.
In the City of Stafford case the surety completed its defaulting principal’s contract with the city. Prior to default the contractor had assigned the proceeds of the contract to the bank to secure a credit of $2,000. The bank advanced money only on signed bills for labor and material, each advance being represented by a check drawn to a laborer or materialman. The city, despite the claim of the surety, paid the bank $2,000 in full payment of its claim, and the surety brought suit against both city and bank. In an extensive opinion this court reviewed the decided cases, including Prairie State Bank and Henningsen, before concluding that equity required the bank to share pro rata with the surety in the loss, and thus account to the surety for a portion of its $2,000. The bank here cites particularly the court’s observation:
“We have reached this conclusion after carefully considering the authorities referred to — being disposed to differ from those which might lead to a different result. . . .” (93 Kan., at 550.)
We do not construe this comment as a total rejection of otherwise accepted principles. The holding in that case was based on the court’s feeling that:
“This case, however, must be determined by rules applicable to its own facts. The bank, in effect, paid and took over $2000 worth of labor and material claims, and the formality of giving Bortenlanger credit and taking his note is negligible. . . .” (93 Kan., 549-50.)
The net effect of the holding was that, where its money clearly went penny for penny directly into labor and materials the bank enjoyed subrogation rights equal to but not greater than those of the surety.
The peculiar nature of the facts in City of Stafford was recognized in Bank v. Insurance Co., 109 Kan. 562, 200 Pac. 281, where a bank attempted to recoup its advances to a contractor by an action against the contractor’s surety. The notes taken by the bank recited a purpose of paying for labor and material (as did Mid-Continent’s loan agreement with the bank here), and the bank claimed to be subrogated to the rights of laborers and materialmen who might have been paid from the loan proceeds. Subrogation was denied, the court noting:
“. . . The bank was a mere volunteer. It was under no obligation to become involved in the matter of the erection of the school building, except the usual desire of a bank to make profit by loaning its money on interest. In the opinion in the case of Deposit Co. v. City of Stafford, 93 Kan. 539, 144 Pac. 852, the authorities on this question were reviewed at length, and the court approved the doctrine of the case of Prairie State Bank v. United States, 164 U. S. 227, where it was held that the rights of the surety related back to the date of the original contract, and that the contractors could not transfer to a bank any greater right in the funds than they themselves possessed, which rights were subordinate to those of the owner and the sureties. The supreme court of the United States said in that case:
“ ‘The bank on the contrary, was a mere volunteer, who lent money to Sundberg on the faith of a presumed agreement and of supposed rights acquired thereunder.’ (p.232.)” (109 Kan, at 564.)
As to the decision in City of Stafford, the court said, “It was distinctly held that the case should be determined by rules applicable to the particular- state of facts.” (Id., at 565.)
The other case urged by the bank on this point is Fidelity and Guaranty Co. v. City of Pittsburg, supra. There the contractor borrowed money from a bank and assigned as security money then due him for work completed. The assignment was presented to and accepted by the city commission, which ordered payment to the bank, all before default. Only the adoption of an appropriation ordinance and the drawing of an order of payment occurred after default. It was held that the city could not be compelled to pay twice; that by its action in accepting the assignment it bound itself to pay the bank at a time when it could have paid the contractor. Its further action in carrying out its obligation to the bank did not subject it to liability to the surety.
Here, of course, Foy neither paid nor legally bound itself to pay the bank; on the contrary, it still holds the money. Further, the re tained money never became due Mid-Continent, because of Foy’s contractual right to off-set unpaid claims for material.
Both City of Stafford and City of Pittsburg stand at best for the proposition that a creditor may make a valid assignment of money due him, and that such an assignment when honored by the debtor will be recognized. They do not stand for the proposition that one may assign any more than he is entitled to receive.
The bank’s argument based on these cases is aptly answered in National Shawmut Bk. of Boston v. New Amsterdam Cas. Co., supra, 411 F. 2d, at 847-8:
“Finally, the Bank asserts that even if the surety may claim as a subrogee, the Bank has a superior claim in equity. This is so, according to the Bank, where earned progress payments are involved and where the surety has benefited from the contractor’s application of the loan proceeds to contracts bonded by the surety.
“The position espoused by the Bank originated in cases where earned progress payments had been paid to an assignee bank and the surety was attempting, after the default of the contractor, to recover the amounts paid. See, e. g., American Fidelity Co. v. National City Bank of Evansville, 266 F. 2d 910 (D. C. Cir. 1959); Coconut Grove Exchange Bank v. New Amsterdam Casualty Co., 149 F. 2d 73 (5th Cir. 1945); Town of River Junction v. Maryland Casualty Co., 110 F. 2d 278 (5th Cir. 1940); National Union Fire Ins. Co. of Pittsburgh v. United States, 304 F. 2d 465, 157 Ct. Cl. 696 (1962).
“Here the payments were earned but unpaid prior to tire contractor’s default. Prior to default, the contractor had the right to assign progress payments and had the Bank received payment, it could not (absent circumstances amounting to fraud) have been divested by the surety. But upon default, the surety which is obligated to complete the work steps into the shoes of the government — not of the contractor which on default has forfeited its rights. It is subrogated not only to the right of the government to pay laborers and materialmen from funds retained out of progress payments, Prairie State Nat. Bank v. United States, 164 U. S. 227, 17 S. Ct. 142, 41 L. Ed. 412 (1896); Henningsen v. United States Fidelity & Guaranty Co., 208 U. S. 404, 28 S. Ct. 389, 52 L. Ed. 547 (1908); Pearlman v. Reliance Ins. Co., supra, but also to the government’s right to apply to the cost of completion the earned but unpaid progress payments in its hands at the time of default. United States v. Munsey Trust Co., 332 U. S. 234, 67 S. Ct. 1599, 91 L. Ed. 2022 (1947); Trinity Universal Ins. Co. v. United States, 382 F. 2d 317, 320 ( 5th Cir. 1967)....”(Emphasis added.)
The net result is that, barring the UCC, the surety had an equitable lien through its right of subrogation dating back to the time it executed the bond, January 31, 1967; ihe bank’s security interest attached no ¿earlier than February 28,1967. The remaining question is whether the surety lost the priority of its lien by failing to file under the UCC.
The parties agree that the doctrine of subrogation, as such, survived the enactment of the UCC, citing § 1-103 that:
“Unless displaced by the particular provisions of this act, the principles of law and equity . . . shall supplement its provisions.”
The bank argues, however, that priorities are governed by the Code, and particularly Article 9. This might well be so if the surety were relying on its contractual assignments of the rights of Mid-Continent or the materialmen. It might then be argued that it was claiming a “security interest” (defined in K. S. A. 84-1-201 [37]) in a “contract right,” (defined in 84-9-106 as amended), in which case it would be covered (84-9-102) and filing would be necessary to “perfect” the lien (84-9-302, as amended). But the surety here prefers to abandon whatever contractual rights it may have, and to bottom its claim wholly on its purely equitable right of subrogation.
We have long recognized the distinction between “conventional” subrogation, based on contract, and “legal” or “equitable” subrogation which arises by operation of law without regard to any contractual relationship. We once put it this way:
“. . . Subrogation is a creature of equity invented to prevent a failure of justice, and is broad enough to include an instance in which one party is required to pay what is, between them, the debt of another. It does not depend upon contract nor the absence of contract, but is founded upon principles of natural justice. (New v. Smith, 94 Kan. 6, 16, 145 Pac. 880; Olson v. Peterson, 88 Kan. 350, 128 Pac. 191; Crippen v. Chappel, 35 Kan. 495, 11 Pac. 453.) . . .” (Blitz v. Metzger, 119 Kan. 760, 767, 241 Pac. 259.)
And, more directly, in United States Fidelity & Guaranty Co. v. Maryland Cas. Co., 186 Kan. 637, 643, 352 P. 2d 70, we said:
“It has recently been recognized that the right to legal subrogation as distinguished from conventional subrogation arises by operation of law and does not depend upon contract, assignment or agreement. (Fenly v. Revell, 170 Kan. 705, 709, 228 P. 2d 905.) . . .”
The surety’s right, then, does not depend on contract, while UCC § 9-102 (2) says that Article 9 applies to security interests “created by contract.” It follows that a surety’s claim to legal or equitable subrogation is not a “security interest” under Article 9 of the UCC, and is not affected by the surety’s failure to file a financing statement.
Although this proposition is new to this court, it has been considered elsewhere with near unanimous results. One of the most recent is Canter v. Schlager,_Mass._, 267 N. E. 2d 492 (1971), which surveys the decisions and effectively deals with the few mavericks among them. The controversy there was between a nonfiling surety and the contractor s trustee in bankruptcy who, the court noted, had the rights of a lien creditor. In holding the UCC inapplicable the Massachusetts Supreme Judicial Court quoted with approval from Jacobs v. Northeastern Corp., 416 Pa. 417, 429, 206 A. 2d 49, 55:
. . Of basic importance is the general rule of Section 9-102 (2) that Article 9 ‘applies to security interests created by contract.’ Rights of subrogation, although growing out of a contractual setting and ofttimes articulated by the contract, do not depend for their existence on a grant in the contract, but are created by law to avoid injustice. Therefore, subrogation rights are not ‘security interests’ within the meaning of Article 9. . . .” (Emphasis supplied.)
It went on to say (267 N. E. 2d, at 494-95):
“Our conclusion that filing under the Code is unnecessary to preserve the priority of a surety’s right of subrogation over the rights of a construction contractor’s trustee in bankruptcy is reinforced by decisions of other courts. Jacobs v. Northeastern Corp., supra (receiver against surety, Pennsylvania law). National Shawmut Bank v. New Amsterdam Cas. Co. Inc., 411 F. 2d 843 (1st Cir.) (assignee bank against surety on Federal contract, Massachusetts law). Framingham Trust Co. v. Gould-Natl. Batteries, Inc., 427 F. 2d 856 (1st Cir.) (assignee bank against surety, Massachusetts law). Home Indem. Co. v. United States, 433 F. 2d 764 (Ct. Cl.) (surety on Federal contract against trustee in bankruptcy of assignee finance company, Illinois law). National Sur. Corp. v. State Natl. Bank, 454 S. W. 2d 354, 356 (Ky.) (surety against assignee bank, Kentucky law). Aetna Cas. & Sur. Co. v. Perrotta, 62 Misc. 2d 252, 308 N. Y. S. 2d 613 (surety against assignee finance company, New York law). Contrary decisions in United States v. G. P. Fleetwood & Co. Inc., 165 F. Supp. 723 (W. D. Pa.) (surety on subcontract against trustee in bankruptcy of subcontractor), and Hartford Acc. & Indem. Co. v. State Pub. Sch. Bldg. Authy., 26 D. & C. 2d (Pa.) 717 (surety against assignee bank), are not authoritative with respect to Pennsylvania law after the decision in Jacobs v. Northeastern Corp., supra. So far as Maryland Cas. Co. v. Mullett, 295 F. Supp. 875 (W. D. Pa.), is contrary, it also departs from Pennsylvania law. The Uniform Commercial Code is to be ‘liberally construed and applied to promote its underlying purposes and policies,’ which include a purpose and policy ‘to make uniform the law among the various jurisdictions.’ [UCC.]”
Some courts which have reached this conclusion have been impressed, as are we, by the rejection from the Code as adopted of a proposed §9-312 (7) which would have specifically subordinated the lien of a surety to that of a later lender with a perfected security interest. The Editorial Board’s reasons for the deletion of this proposal from the Code were:
“The Surety Companies’ representatives convincingly took the position that subsection (7) as it stands is a complete reversal of the case law not only of the Supreme Court of the United States but also of the highest cotuts of most of the states. They cited Prairie State Bank v. U. S., 17 S. Ct. 142, 164 U. S. 227, 41 L. Ed. 412 (1896); Henningsen v. U. S. F. & G., 28 S. Ct. 389, 208 U. S. 404, 52 L. Ed. 547 (1908); U. S. v. Munsey Trust, 67 S. Ct. 1599, 332 U. S. 234 (1947), at 240, 91 L. Ed. 2022; 9 Am. Jur. 72, §§ 114, 115; 43 Am. Jur. 939, § 197 et seq.; 60 C. J. Subrogation § 87; Stearns Law of Suretyship, 5th Ed. (1951), page 472; Appeal of Lancaster County Natl. Bk., 304 Pa. 437, 155 A. 859, 76 A. L. R. 912 (1931); and 127 A. L. R. 974, 976.
“The typical case involved is a case in which a surety company, as a prerequisite to the execution of a performance bond, requires a contractor to make an assignment of all moneys coming to the contractor from the owner. Later, the contractor goes to a bank and obtains a loan presumably or actually for the purpose of enabling him to perform his contract.
“Under the cited case law, the surety’s rights come first as to the funds owing by the owner unless the surety has subordinated its right to the bank. Subsection (7) of the Code as written would reverse the situation and give the bank priority in all cases.
“Under existing case law, both the contractor and the bank are in a position to bargain with the surety which may or may not be willing to subordinate its claim. Under subsection (7) as written in the Code the surety company would have nothing to bargain about.
“It was the feeling of the Editorial Board that existing law should not be disturbed particularly as the proposed change would be likely to be a point of controversy in every legislature in which the Code is introduced.” (Uniform Laws Annotated, Uniform Commercial Code, Changes in Text and Comments, at 25-26 [1953].)
We thus have a clear recognition of the prevailing rule on the part of the draftsmen of the Code and a considered and deliberate decision, made only after reaching a tentative conclusion to the contrary, that they should not propose a change. We think this convincingly demonstrates an intent, imputed to the legislature which adopted it, that the Code should not be applicable to or alter the long established priorities in this area. As the First Circuit put it (National Shawmut Bk. of Boston v. New Amsterdam Cas. Co., supra, 411 F. 2d, at 849):
“. . . It may well be — although we express no opinion — that to subject sureties to the filing requirements of the Code would improve and rationalize the system of financing public contracts. But equitable subrogation is too hardy a plant to be uprooted by a Code which speaks around but not to the issue.”
We therefore conclude that the trial court erred in finding that the bank had a first and prior right to the contract proceeds in the hands of Foy. The surety, having paid out more than that amount, is entitled to the entire fund.
The judgment is therefore reversed with directions to enter an appropriate judgment in favor of the surety, United States Fidelity and Guaranty Company, in accordance with the views expressed herein.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Fatzer, C. J.:
This action was commenced by the appellees, Sennett Kirk, Jr. and H. B. Doering, as landowners, against an oil and gas lessee corporation, H. G. P. Corporation, Inc. for the cancellation of an oil and gas lease and for statutory and common-law damages arising from the cancellation, including misfeasance in plugging certain oil and gas wells and the failure to plug certain water injection wells on said leases.
The facts are undisputed. The appellant, Claude D. Beets, was one of the incorporators of the defendant corporation in September, 1961. Two leases acquired by the corporation as separate tracts from the prior lessee, Maricibo Oil Exploration Company, on October 16, 1961, were financed through personal loans from Beets to the corporation, evidenced by promissory notes. Beets also made other personal loans to the corporation and at one time H. G. P. was indebted to Beets in the amount of $45,000. Beets owned the majority of the common stock of H. G. P. and was the principal officer, director, and manager of its affairs. The only other stockholder or officer of the defendant corporation was Beets’ brother-in-law, who agreed to purchase the minority interest in the corporation for $1,500, and in fact, he never paid for the full minority interest. The only assets of H. G. P. were the two leases in question and the personal property on those leases. All of the corporate records were in the control of Beets and were kept by him at his home.
On November 19, 1967, after production on the two leases in question had ceased, and salvage operations were proceeding, the appellees filed this action against the defendant corporation and other owners of record of the lease interests, seeking cancellation of the leases and requesting that H. G. P. be required to indemnify the appellees for damages to the surface or to fully restore the surface of said real estate. (K. S. A. 55-128, now amended; K. S. A. 55-132a.) The action further sought attorney s fees and the quieting of title to the land upon which the leases were located. (K. S. A. 55-202.)
Beets was not named a defendant to the original action; however, he was present when the leases were visited and was seen removing personal property from the leased premises by the district court and counsel for the parties to the action. A pretrial memorandum dated March 1, 1968, indicates the parties would negotiate on a time for H. G. P. to salvage its personal property and make some assurances that the real estate would be restored.
On March 4, 1968, counsel for the defendant corporation, consistent with the pretrial memorandum, sent a letter of compromise and settlement to counsel for the appellees; as the letter is of paramount importance in this lawsuit, it is set out in full:
“Mr. Gwinn G. Shell
Attorney at Law
Garnett, Kansas 66032
“Dear Gwinn:
“Since the pre-trial I have talked with Claude Beets and believe we can agree on some basis for disposing of this matter without further court work.
“Claude is willing for the court to enter judgment of foreclosure on the lease granting the defendant the balance of 1968 to complete the pulling and plugging of wells and removal of any of the corporate property from the lease. We would also agree that the question of damages should be held in abeyance pending completion of the removal of the property and cleanup incidental thereto. This would leave nothing to determine but the amount of damages, if any, remaining following removal and clean-up. We would also give some satisfactory guarantee as to responsibility for the damages in order for you to permit the removal of the corporate property.
“If the matter can be disposed of along these lines, please draft either an agreement or journal entry covering the items agreed upon.
“Yours very truly,
“Gleason and Pinet
“/s/ Thomas E. Gleason.” (Emphasis supplied.)
Although the last paragraph of the letter appears to condition the agreement upon the filing of an agreement or journal entry covering the items agreed upon and no formal journal entry was ever filed, the original letter was filed with the clerk of the district court July 11, 1968.
Events hereafter detailed show the appellees consented, agreed, and acquiesced to the terms of the compromise and settlement of H. G. P., and refrained from pursuing remedies that were otherwise available to them under the facts and circumstances.
Subsequently, it was discovered that Beets was salvaging the equipment from the leases, purchasing the same from the defendant corporation and the proceeds of the salvage were applied to personal loans outstanding of the corporation, held by Beets. The original loans outstanding of $45,000 had been reduced to $2,200. Further, some of the oil wells had been plugged negligently, and crude oil had been expelled onto the surface of the leases causing considerable damage. Beets also had removed and liquidated virtually all of the corporate assets.
At that point, Beets was made a party defendant to the action. He moved for summary judgment, contending as a matter of law that he could not be held personally liable for the obligations of the defendant corporation. The motion was overruled by the district court. The supplemental petition proceeded to trial and the district court entered judgment for the plaintiffs. Beets has appealed, asserting the district comb erred in finding him personally liable for the plugging of the oil wells on the abandoned leases in question and that he was estopped from a denial of the obligation to the plaintiffs by reason of the March 4, 1968, letter, above.
We think there are several reasons why the district court properly held Beets personally liable. The officers and agents of a corporation may be held personally liable for the tortious acts of the corporation in which they have willfully participated. (Ryan, et al. v. L. A. & N. W. Rly. Co., et al., 21 Kan. 365; Lathrop v. Hall, 141 Kan. 909, 44 P. 2d 201.) Further, an agent who violates a duty which he owes to a third person is answerable to such third person for the consequences. (Duensing v. Leaman, 152 Kan. 42, 102 P. 2d 992; Russell v. American Rock Crusher Co., 181 Kan. 891, 317 P. 2d 847; Jacobson v. Parrill, 186 Kan. 467, 351 P. 2d 194.)
The directors, managers, and officers of a corporation have a fiduciary relationship with regard to the corporate assets. If the corporation is insolvent and the fiduciaries are also creditors of the same, they cannot, while they continue in control of its affairs and assets, take any advantage of their position to secure preference or advantage for themselves over other creditors, but must share ratably with the other general creditors in the distribution of the corporate assets. (Hays v. Citizens’ Bank, 51 Kan. 535, 33 Pac. 318; Oil & Gas Co. v. Overfield, 113 Kan. 294, 214 Pac. 809.)
Upon the theory of the appellant that the March 4, 1968, letter of compromise and settlement was binding only upon the corporation and not him personally, then the settlement became a duty and obligation of the corporation. The action of Beets in salvaging the corporate property, purchasing the same, and then authorizing, as an agent of the principal, the transfer of the proceeds to reduce the notes outstanding, was a breach of his fiduciary duty to share ratably with the appellees. That action of Beets, implicitly making him a preferred creditor, cannot be condoned.
' The record shows the defendant corporation was a tool by which the appellant conducted his own personal business. He was the principal stockholder, principal officer and manager of the affairs of H. G. P., principal creditor, principal receiver of the assets, principal salvage operator, and principal transferee of all funds secured by the corporation; in short, Beets toas the defendant corporation.
The doctrine of alter ego fastens liability on an individual who uses a corporation merely as an instrumentality to conduct his own personal business, such liability arising from fraud or injustice perpetrated not only on the corporations but on third persons who deal with the corporation. Under the doctrine of alter ego, the court disregards the corporate entity and holds the individual responsible for his acts knowingly and intentionally done in the name of the corporation. (Kilpatrick Bros., Inc. v. Poynter, 205 Kan. 787, 473 P. 2d 33.)
It is clear that H. G. P. was a mere cloak by which Beets conducted his personal affairs and when the corporate entity becomes a conduit of an individual, the corporate veil may be pierced by the court in the interest of securing a just determination of rights and liabilities. Such a conclusion follows from the facts and circumstances as disclosed by the record.
The appellees relied upon the good faith settlement tendered by counsel for H. G. P. They did nothing to prevent the salvage or removal of the corporate property upon the personal assurance of Beets that the plugging of the oil wells and water injection wells would be completed as per the settlement. They had no way of ascertaining that the settlement as represented was other than the intention of the corporation and Beets, nor does the record show Beets made the representation without actual or constructive knowledge of the facts. It is obvious that the representations in the letter were not carried out; instead, Beets proceeded to liquidate the corporate assets for his own benefit and advantage, and negligently supervised the plugging of certain wells and failed to plug others. It was then the appellees sought to have Beets held personally responsible. (Peterson v. City of Parsons, 139 Kan. 701, 33 P. 2d 715; Cox v. Watkins, 149 Kan. 209, 87 P. 2d 243; Pelischek v. Voshell, 181 Kan. 712, 313 P. 2d 1105; Place v. Place, 207 Kan. 734, 486 P. 2d 1354.) See, also, Observations on the Law of Misrepresentation in Kansas, James R. Ahrens, 9 Washburn L. J. 315 (1970). The concealment of the intention to liquidate the corporate assets for his personal benefit and the misrepresentation that the corporation would comply with the settlement fastens personal liability on Beets, as well.
This court must also consider the argument of the appellant that the district court erred in considering the cost of statutory plugging of the abandoned wells as an element of damages recoverable by the appellees. We agree that the provisions of K. S. A. 55-139 — 55-142 (since amended) establish a method by which abandoned wells may be plugged, but see K. S. A. 55-133 and Kansas Corporation Commission Reg. K. A. R. 82-2-503 (c) which provides that the same procedure shall be followed in plugging of injection wells as provided for the plugging of oil and gas wells pursuant to K. S. A. 55-128. When the appellant consented in the March 4, letter that he was,
“. . . willing for the court to enter judgment of foreclosure on the lease granting the defendant the balance of 1968 to complete the pulling and plugging of wells and removal of any of the corporate property from the lease,”
he accepted that duty and cannot now deny it. The district court did not err in its determination that Beets was liable for the costs of plugging the wells. (K. S. A. 55-128 [since amended].)
In conclusion, while the district court decided the case upon the theory of estoppel and this court is not satisfied that the theory of estoppel would be the proper reason for the decision, we note that where the judgment o£ the district court is supported by the facts, its judgment will not be reversed because it adopted a wrong theory of law, and based its judgment on such erroneous theory. (Leaderbrand v. Central State Bank of Wichita, 202 Kan. 450, 450 P. 2d 1; Custom Built Homes Co. v. State Comm. of Rev. & Taxation, 184 Kan. 31, 334 P. 2d 808; Pierce v. Board of County Commissioners, 200 Kan. 74, 434 P. 2d 858.)
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Kaul, J.:
This appeal arises from convictions by a jury of defendants (Edmond Raymond Grimmett, Jr., and Emmett Smith, Jr.) of robbery in the first degree.
On April 29, 1970, the Gatewood liquor store in Coffeyville was robbed. At the time of the robbery Lester Gatewood was in charge of the store when he was confronted by two men, one of whom pointed a hand gun at him. Two bottles of whiskey, some currency, an orange colored money bag, a quantity of canceled checks, and a metal box were taken from the store. At the trial Mr. Gatewood testified “He was pretty sure that the defendants were the two who robbed him.”
It was established that defendants were either visiting or residing at the Jesse Hutchinson residence in Coffeyville. Allen Flowers, a Coffeyville police officer, testified that on May 1, 1970, he was in an alley adjacent to the Hutchinson residence, talking to the operator of a trash truck, when he saw objects in the trash burner near the alley by the side of the Hutchinson house. Officer Flowers’s attention was attracted to the trash burner where he saw an orange colored money bag on top of the burner. After looking under the money bag he found canceled checks and two liquor bottles.
Karen Montooth, a witness for the state, testified “that she was with the defendants the night of the robbery and that the automobile they were in stopped near the liquor store.” She saw the defendants walk in the direction of the liquor store and when they returned to the automobile one of them had some money in his hand. She also saw a liquor bottle. She and the two defendants returned to the Hutchinson residence. After the three of them entered the house she saw a metal box on the coffee table. She was given about fifteen dollars by one of the defendants. She also testified that she had seen a gun in tihe possession of one of the defendants at the Hutchinson residence, but did not see a gun in the possession of defendants the evening of the robbery.
Present counsel was appointed and represented defendants in the trial below and on appeal to this court.
Defendants were convicted by a jury on July 20, 1970. Proper notice having been served upon each defendant and counsel, the state presented evidence of a prior felony conviction of each defendant, which was admitted by the trial court. Pursuant to the provisions of K. S. A. 21-527 (now K. S. A. 1971 Supp. 21-3426, 21-3427) and K. S. A. 21-107a (now K. S. A. 1971 Supp. 21-4504), each defendant was sentenced to a term of not less than twenty nor more than forty-two years in the Kansas State Penitentiary. Thereafter this appeal was perfected.
Prefatory to the argument in his brief, defendants’ counsel listed seven items which defendant Grimmett requested counsel to present to this court on appeal. It appears that counsel carefully considered the requests made by Grimmett and fully explains why there is nothing in five of the matters raised which warrants consideration on appeal. Counsel then proceeds to present arguments on the two items which he deems worthy of consideration by this court.
We have examined the items which defendant Grimmett listed in his letter to counsel and fully agree with the manner in which they were treated by counsel.
Defendants first urge error in the trial court’s refusal to suppress the items of evidence, which we have mentioned, that were found in the trash burner. This matter was presented to the trial court on oral motion during the trial. An out-of-court hearing was had and evidence produced. The trial court denied defendants’ motion to suppress and the items were admitted into evidence at the trial.
On appeal defendants’ counsel candidly admits that since the items were in the trash burner located on the Hutchinson property, in which neither defendant claimed any proprietary or possessory interest, that defendants did not have standing to invoke constitutional guaranty of immunity from unreasonable search and seizure under this court’s holdings in State v. Edwards, 197 Kan. 146, 415 P. 2d 231; and Wheeler v. State, 202 Kan. 134, 446 P. 2d 777. Defendants’ counsel simply asks this court to overrule the decisions referred to on the ground that the state should not be permitted to use any evidence obtained in this manner.
It is conceded that Jesse Hutchinson, the owner of the property, made no objection to the officer’s seizure. In State v. Edwards, supra, we held that a person claiming no interest in an automobile did not have standing to invoke constitutional guaranty of immunity from unreasonable search and seizure. We applied the same principle to a building and premises in Wheeler v. State, supra. The court’s reasoning is fully set forth in the two opinions mentioned together with an in-depth consideration of the many authorities dealing with the subject. We adhere to our holdings in those cases.
Defendants next complain concerning the enhanced sentences imposed pursuant to 21-107a, supra. The felony convictions presented to the trial court show that the conviction of each of the defendants was obtained when each was sixteen years of age. Subsequent to the date of the convictions the age of juveniles was raised to eighteen years, by an amendment to K. S. A. 38-802 (now K.S.A. 1971 Supp. 38-802).
Defendants’ counsel was unable to cite authorities in support of defendants’ position on this point and we know of none. Counsel’s argument is actually in the form of a plea of mercy. No contention is made that the prior convictions are in any respect invalid or in violation of any constitutional right of defendants. Defendants’ pleas for leniency are proper matters for the attention of the State Board of Probation and Parole.
We are unable to find any legal defects in the enhanced sentence of either defendant.
The judgments and sentences are affirmed.
O’Connor and Prager, JJ., not participating. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is a criminal action wherein the defendant waived a trial by jury and was convicted of burglary and larceny in violation of K. S. A. 21-520 and 21-524. Appeal has been duly perfected.
The only issue presented for review is whether the circumstantial evidence disclosed by the record is sufficient to sustain the findings of guilty made by the trial court.
The record discloses two police officers were on routine patrol when, at approximately 12:39 a. m. on March 28, 1969, they found an automobile parked in a “No Parking Zone” at approximately 18th Street and Gage Boulevard, Topeka, Kansas. The keys were in the ignition switch and the vehicle was unattended. Upon examination it was discovered the hood of the unattended automobile was warm. The two officers then moved one block away from the parked car, but kept it under observation. At approximately 12:50 a. m. the defendant walked across the south lawn of the Glad Tidings Assembly of God Church to the unattended automobile parked at the curb. The two officers then closed in upon the defendant and the unattended car. A back-up police officer arrived in a police car and informed the first two officers that a door was open on the north side of the church. The defendant at this time was placed in the rear seat of the prowl car and driven to the north side of the church. One police officer remained in the prowl car while the other officer and a back-up officer entered the church through the open door which bore no signs of breaking or forcing, the door not having been locked but closed. Once inside it was learned that an office had been left in a state of untidiness with file drawers open and papers strewn about. Rev. L. L. Ammons, pastor of the Glad Tidings Church, was called, as well as a police department detective.
The other officer testified he observed defendant walking across the street from the lawn of the Glad Tidings Church to his parked car. He read the defendant his rights after he had been placed in the prowl car and driven the short distance to the church. He testified he observed money in a clip in the hand of the defendant. The defendant had taken a number of one dollar bills from his pocket and had asked this witness if he wanted them and then placed the bills in his money clip and returned the same to his pocket. The defendant told this officer he had parked his car there and walked across the lawn of tibe church in question to what he thought was the car of a friend parked in tibe area.
A third police officer testified that he had entered the church building through an unlocked door and found every door leading from the church to the outside closed but not locked. None bore signs of forced entry. He further testified the defendant told him he was waiting over by the church for a friend. This officer testified he would estimate that the north edge of the church was 50 to 75 feet from the street, and that it is farther from the south edge of the church to 18th Street; and that the church is 15 to 20 feet from Gage Boulevard. He further testified one could see the south door of the church from the outside at night.
Don Demore was called as a witness on behalf of the state and testified he was a detective for the Topeka Police Department; that he was on duty the night in question and was called to the Glad Tidings Church. He testified he processed the area and found nothing in the way of physical evidence which would directly relate to the defendant. The defendant told him he was in the same church earlier in the evening and visited with the preacher there concerning religious services for patients at Topeka State Hospital.
Rev. L. L. Ammons was called as a witness on behalf of the state and testified that the entrance is always open to the church, and that his office is normally locked. Sometime during the evening money was placed in a desk drawer in an office in the church. The drawer was open and the money was gone when he was called back to the church in the early morning hours by the police. He further testified he had talked to the defendant earlier in the evening at approximately 8:30 on March 27, 1969, inside the church during a revival service. However, at this time defendant had given Rev. Ammons a fictitious name.
Harold Turntine, treasurer of the Glad Tidings Church, was called as a witness on behalf of the state and testified that on March 27, 1969, a collection was received amounting to $13.54, placed in the desk drawer and the desk locked. He stated he did not return to the church that night. It was stipulated that at the time of booking the defendant had on his person $65 in bills and $9.02 in change.
The defendant chose to testify in his own behalf. He testified he had parked his car approximately at the comer of 18th and Gage; that he had walked across the churchyard; that he had rested for a moment by the church and returned to his car again walking across the churchyard. He denied any wrongdoing. He further testified he had been a mental patient at Topeka State Hospital for five years at one time in the past.
The trial court found the defendant guilty as charged and referred to the circumstantial evidence against the defendant as overwhelming. The court said “a finding by this court otherwise would be inconsistent with any other rational conclusion.”
The strength of well developed circumstantial evidence was discussed in State v. Hale, 207 Kan. 446, 485 P. 2d 1338 as follows:
“It is well established that a conviction, even of the gravest offense, may be sustained by circumstantial evidence. (State v. Kennedy, 124 Kan. 119, 257 Pac. 944.) This court has even said that inferences drawn from admitted or well authenticated facts may be stronger and more convincing than the testimony of witnesses who, albeit unwittingly, may not have been telling the truth. (State v. Evans, 115 Kan. 538, 541, 224 Pac. 492.) This declaration accords with the concept, generally held, that circumstantial evidence may be more trustworthy than eyeball testimony. (30 Am. Jur. 2d Evidence, § 1091, pp. 249, 250.)” (p. 449.)
The weight to be given circumstantial evidence is to be determined by the trier of the facts. It is not the function of this court to weigh the evidence. (State v. Gregory, 191 Kan. 687, 383 P. 2d 965.)
When considering on appeal the sufficiency of circumstantial evidence to sustain a conviction of crime, the question before this court is not whether tibe evidence is incompatible with any reasonable hypothesis except guilt. That was a question for the trier of the facts. The function of this court on appeal is limited to ascertaining whether there was a basis in the evidence for a reasonable inference of guilt. (State v. Brizendine, 114 Kan. 699, 220 Pac. 174, Syl. ¶ 4; and State v. Gregory, supra.)
For other decisions of like import see State v. Fouts, 169 Kan. 686, 691, 221 P. 2d 841; State v. Rhoten, 174 Kan. 394, 399, 257 P. 2d 141; State v. Dill, 182 Kan. 174, 319 P. 2d 172; and State v. Cooper, 190 Kan. 101, 372 P. 2d 289.
Without further elaboration the cases relied upon by the appellant, State v. Doyle, 201 Kan. 469, 441 P. 2d 846; and State v. Ragland, 170 Kan. 346, 226 P. 2d 251, are readily distinguishable.
A careful review of the record presented on appeal discloses there was basis in the evidence for a reasonable inference of guilt.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Harman, C.:
This is an action for contribution brought by one insurance company against another arising out of fire damage to property upon which each insurer paid the loss. Contribution was denied and the plaintiff insurer has appealed. Essentially, the issue is whether there was overlapping or common coverage requiring contribution.
With a single exception the facts before the trial court were stipulated by the parties and may be summarized as follows:
Harry Hines Woodring was the legal owner of a house in Topeka which he had insured, in his own name alone, against fire loss in the amount of $50,000 under a homeowners policy issued by the plaintiff New Hampshire Insurance Company. Mr. Wood-ring resided in the house at the time of the fire in question.
Helen Coolidge Woodring, a resident of Wilmington, Delaware, was the former wife of Mr. Woodring, having been divorced from him in 1960 by decree of the Shawnee county district court. As a part of the property settlement in the divorce action Mr. Wood-ring delivered to Mrs. Woodring his promissory note and mortgage on the house in question in the amount of $25,000, which instruments were duly recorded in Shawnee county. No payments had been made on the note at the time of the fire loss in 1967.
When Mrs. Woodring’s attorney in Wilmington, Delaware, was unable to learn whether Mr. Woodring had insured the house adequately against fire loss, she purchased a standard fire policy on it in the amount of $25,000 from defendant American Employers Insurance Company. The assureds named on the face of this policy were “Harry H. Woodring & Mrs. Helen Coolidge Woodring, A. T. I. M. A.” The litigants agree the letters A. T. I. M. A. mean “as their interest may appear”.
Neither policy contained any mention of a mortgage on the property. Both policies were in effect on April 6, 1967, when the house was damaged by fire to the extent of $22,632.18. Defendant Employers accepted proof of loss from Mrs. Woodring for $22,632.18, and paid her that amount but it declined to accept proof of loss or to contribute anything on Mr. Woodring’s loss after demand was made upon it. Mr. Woodring made claim to plaintiff New Hampshire for $22,632.18 and was paid that amount by plaintiff after plaintiff and defendant agreed the issue of contribution between them would be submitted for judicial determination.
Both insurers subscribe to that which is known in the insurance industry as the “Guiding Principles”, used by adjusters in determining contribution where there is common coverage on the same property.
In addition to the stipulated facts defendant offered, and the trial court received, deposition testimony of Mrs. Woodring. This testimony was objected to by plaintiff as violative of the parol evidence rule. In the deposition Mrs. Woodring stated she pur chased and paid for the insurance in order to protect her interest in the property as mortgagee.
Upon the foregoing the parties submitted to the trial court the question whether or not the defendant owed coverage to Mr. Woodring and is thereby liable for contribution to plaintiff.
The trial court made findings of fact in accord with those recited. It found Mr. Woodring had obtained his policy without the knowledge or consent of Mrs. Woodring and that Mrs. Woodring had obtained her policy from defendant in order to insure her interest as mortgagee. It concluded this interest was separate and distinct from the interest of Mr. Woodring as mortgagor, that plaintiff was not entitled to contribution from defendant and it rendered judgment accordingly. In its rationale the trial court stated Mrs. Woodring’s deposition was admitted to show her intent and state of mind in obtaining the policy procured by her.
Plaintiff’s principal basis for reversal stems from its contention the court erred in admitting Mrs. Woodring’s deposition. The argument is, the terms of defendant’s policy are clear and unambiguous and are not subject to variance by receipt of such parol evidence; that the testimony objected to contradicts the plain language of the policy and should not have been received; that Mr. Woodring was a named insured under defendant’s policy, he had coverage under it and therefore it constituted insurance covering the same property and the same interest as that covered by plaintiffs policy, bringing into play the application of the Guiding Principles to which both parties subscribe, and under which defendant would be liable for one-half the amount paid by plaintiff to Mr. Woodring. Plaintiff asserts the trial court erred in its factual finding that Mrs. Woodring’s mortgagee interest was the interest insured by defendant’s policy because such finding is in contradiction to the language of the policy itself. Plaintiff also seeks to bring into play the rule that a third party (Mr. Woodring, to whose rights plaintiff was subrogated upon its payment to him) may enforce a contract made for his benefit, strenuously contending that defendant’s policy constituted other insurance providing coverage to Mr. Woodring.
In our view the controversy here is wholly determinable upon the facts stipulated to by the parties, without resort to the parol evidence complained of by plaintiff. The essential question, one of first impression, is whether Mr. Woodring was insured under defendant’s policy, so as to constitute overlapping or common coverage under the Guiding Principles.
The pertinent portions of these Principles are:
“1. Insurance covering same property and same interest:
“A. Insurance covering a specifically described article or object, whether or not for an express amount, at a designated location shall be primary to any other insurance.
“G. Two or more policies providing coverage as set forth in T-A’ through T-F’, respectively, shall be contributing. Contribution shall be as follows:
“(1) Whether or not deductibles are involved, contribution shall be on the basis of the Limit of Liability Rule except that, in the event there is an area of common coverage under two or more policies and separate coverage under any one or more such policies, the policy or policies affording separate coverage shall respond first to that loss it alone covers and the remainder of its limit of liability shall contribute to the common loss on the basis of the Limit of Liability Rule.”
Another portion of the Guiding Principles indicates, by way of illustrative example, that apportionment based on Principle I.G., where each of two companies has a different amount of coverage greater than the loss as in the situation at bar, shall be payment of one-half the loss by each.
It is well settled that a mortgagor and mortgagee have separate and distinct interests in the same property which each may insure (4 Appleman, Insurance Law and Practice, § 2186; 3 Couch on Insurance, 2d, § 23:35).
Rules with respect to the mortgagee have been stated thus:
“One who would be deprived of a security or lien on insured property, or would lose the profit therefrom by destruction of the premises, has an insurable interest therein. It does not matter whether the owners of the property know of or consent to the issuance of the policy upon the lien holder’s interest.
“A mortgagee is generally stated to have an insurable interest in the mortgaged premises, the usual rule being that such interest extends to the amount of indebtedness. . . .” (4 Appleman, Insurance Law and Practice, §2188.)
Under the stipulated facts Mrs. Woodring had a mortgagee interest in the property in the amount of $25,000. This was her only insurable interest in the property and it was a separate and distinct insurable interest to the extent of any balance due on the mortgage debt. She procured a policy of fire insurance issued by defendant, which policy insured her and Mr. Woodring as their interest in the property may appear. The question then arises as to the time when this interest determination is to be made for the purpose of settling coverage.
Again the authorities are clear that a clause making a fire insurance policy payable to named insureds as their interest may appear refers to the interests existing at the time of the loss (5 Couch on Insurance, 2d,1 § 29:109).
The Guiding Principles, whose application here is urged by plaintiff, contemplate a situation where two or more policies cover the same property and the same interest. Contribution between insurers is to be had where there is “an area of common coverage under two or more policies and separate coverage under any one or more such policies” in which event “the policy or policies affording separate coverage shall respond first to that loss it alone covers and the remainder of its limit of liability shall contribute to the common loss on the basis of the Limit of Liability Rule.” This voluntary allocation of risk between themselves by subscribing insurers is in accord with the general rule that a prerequisite to enforcing contribution between insurers is that their policies insure the same interest (see 46 C. J. S., Insurance, § 1207; 44 Am. Jur. 2d, Insurance § 1819; 16 Couch on Insurance, 2d, § 62:161).
It plainly appears from the face of defendant’s policy that Mrs. Woodring insured whatever interest in the property she had. As already indicated, the parties have agreed that at the time of the loss she had a mortgagee interest in the property which exceeded the amount of the damage. Hence she was first in line and had the prior right to have the amount payable under the policy applied toward satisfaction of her claim. The amount due from defendant insurer was expressly limited by policy provision to the actual amount of the loss. Once this policy limit of liability was reached there was no further coverage. When defendant accepted proof of loss from Mrs. Woodring and paid her damage, its liability under its policy was satisfied. Its coverage was exhausted, leaving none for Mr. Woodring. Thus, at the time of the loss there was no area of common coverage and contribution was not in order. That defendant became subrogated to Mrs. Woodring’s security rights upon its payment to her does not alter this result — the rights of the insured against the insurers and the rights of the insurers as to apportionment among themselves must be determined not by the adjustment of equities, but by the provisions of the contracts made (44 Am. Jur. 2d, Insurance, § 1813).
The trial court correctly denied contribution and its judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Fontron, J.:
This action is brought by Leavenworth Club Owners Association and by twelve of its individual members who have been issued private club licenses under the provisions of K. S. A. 1971 Supp. 41-2605. The purpose of the lawsuit is to enjoin the enforcement of a Leavenworth city ordinance designated as Charter Ordinance Number 8. The defendants are certain city and county officers. The district court upheld the ordinance as being valid and the plaintiffs have appealed. We shall refer to the parties as plaintiffs and defendants respectively.
So far as pertinent the ordinance in question reads:
“. . . No Club Licensefd] Hereunder shall Allow the serving, mixing, or consumption of alcoholic liquor on its premises between the hours of 01:30 A. M. and 09:00 A. M. on any day other than a Sunday, nor between the hours of 01:30 A. M. and Twelve (12) noon on Sunday.”
It is alleged by plaintiffs that this ordinance conflicts with K. S. A. 1971 Supp. 41-2614 which provides:
“No club licensed hereunder shall allow the serving, mixing or consumption of alcoholic liquor on its premises between the hours of 3 a. m. and 9 a. m. on any day other than a Sunday nor between the hours of 3 a. m. and 12 noon on a Sunday.”
It is to be noted that the language is identical in both ordinance and statute with the single exception that the serving, mixing or consumption of alcoholic liquors is not allowed after 1:30 a. m. under the ordinance, while the same is not allowed after 3 a. m. under the statute.
Because of the time differential, the plaintiffs contend the ordinance conflicts with and is contrary to the statute. This is the issue raised in their petition. Hence, the plaintiffs reason, the ordinance is void and they point to K. S. A. 1971 Supp.' 41-2631 which provides in substance that no city shall enact an ordinance in conflict with or contrary to the provisions of the private club act, but that the section shall not be construed as preventing a city from enacting ordinances declaring acts prohibited by the private club law as being unlawful in the city.
Underlying the plaintiffs’ argument is the assumption, implicit in the allegations of their petition, that the statute confers the right on a private club licensee to serve alcoholic drinks, and permit its patrons to quaff the same, until 3 a. m. The petition alleges that 41-2614 provides that private clubs can remain open until 3 a. m. This construction of the statute is belied by the language of the statute itself; the wording is that no club licensed (under the act) shall allow the serving, mixing or consumption of alcoholic liquor on its premises between the hours of 3 a. m. and 9 a. m. or, on Sundays, 3 a. m. and noon.
In response to the claim that the ordinance is invalid the defendants pose two defenses: First, that the ordinance does not conflict with 41-2614 but that it is a reasonable exercise of the city’s police power. In this connection the defendants maintain that the statute grants no rights to a club licensee but simply restricts or limits the hours of operation; and that the ordinance, far from conflicting with the statute, merely adds another dimension to the limitations imposed thereby. Secondly, the defendants contend that even though the ordinance conflicts with the statute, it is nevertheless a valid enactment under the Home Rule Amendment to the Kansas Constitution. (Article 12, § 5.)
As a statement of general law, it may be said that where an ordinance is repugnant to the statutes of a state, or to regulations having the force and effect of state law, the latter must prevail. (Trimble v. City of Topeka, 147 Kan. 111, 75 P. 2d 241; Ash v. Gibson, 146 Kan. 756, 74 P. 2d 136; City of Beloit v. Lamborn, 182 Kan. 288, 321 P. 2d 177.) It is equally clear, we believe, that a city in the exercise of the police power may enact ordinances which regulate and restrict activities in the interest of the health, safety and welfare of its citizens. This power extends, so it has been held, to the regulation of matters relating to alcoholic liquor. (In re Thomas, Petitioner, 53 Kan. 659, 37 Pac. 171; Kansas City v. Jordan, 99 Kan. 814, 163 Pac. 188.)
Proceeding to the point at issue, as it is joined by the pleadings, the question is: Does Ordinance Number 8 conflict with the provisions of K. S. A. 41-2614? We think not, when it is measured by the generally prevailing rule expressed in 62 C. J. S., Municipal Corporations, § 143 (3), p. 293:
“As a general rule, a municipal regulation which is merely additional to that of the state law does not create a conflict therewith. Where the legislature has assumed to regulate a given course of conduct by prohibitory enactments, a municipal corporation may make such additional reasonable regulations in aid and furtherance of the purpose of the general law as may seem appropriate to the necessities of the particular locality. The fact that an ordinance enlarges on the provisions of a statute by requiring more than the statute requires creates no conflict therewith unless the statute limits the requirements for all cases to its own prescriptions. . . .”
The same principle is expressed in slightly different phraseology and emphasis in 56 Am. Jur. 2d, Municipal Corporations, Etc., § 374, pp. 408,409:
“The mere fact that the state, in the exercise of the police power, has made certain regulations does not prohibit a municipality from exacting additional requirements. So long as there is no conflict between the two, and the requirements of the municipal ordinance are not in themselves pernicious, as being unreasonable or discriminatory, both will stand. The fact that an ordinance enlarges upon the provisions of a statute by requiring more than the statute requires creates no conflict therewith unless the statute limits the requirement for all cases to its own prescription. Thus, where both an ordinance and a statute are prohibitory, and the only difference between them is that the ordinance goes further in its prohibition but not counter to the prohibition under the statute, and the municipality does not attempt to authorize by the ordinance what the legislature has forbidden or forbid what the legislature has expressly licensed, authorized, or required, there is nothing contradictory between the provisions of the statute and the ordinance because of which they cannot coexist and be effective. Unless legislative provisions are contradictory in the sense that they cannot coexist, they are not deemed inconsistent because of mere lack of uniformity in detail.”
The pronouncements of this court are in agreement with the prevailing rule. A case frequently cited is Kansas City v. Henre, 96 Kan. 794, 153 Pac. 548, where the city in adopting a milk ordinance fixed a higher standard than that required by the state. In upholding the ordinance as being a valid exercise of the city’s power to protect the health of its inhabitants, the court made this pronouncement:
“. . . It is well settled in this state that where power is conferred upon cities to enact ordinances for the preservation of peace and good order within the city or for the preservation of the health of its inhabitants it may be exercised although the legislature has provided state regulations on the same subjects. ... A city may not by ordinance authorize that which a statute prohibits nor punish the doing of an act which the statute expressly authorizes, but, as we have seen, it is competent for a city, under the authority of the legislature, to provide that an act shall be an offense against the authority of the city although the same act is made an offense against the state. An ordinance enacted in the exercise of the police power is not necessarily inconsistent with a state law on the same subject because the city provides for greater restrictions or makes higher standards than is provided or made by the statute. . . .” (pp. 796, 797.)
See, also, Walker v. Railway Co., 95 Kan. 702, 149 Pac. 677.
In City of Beloit v. Lamborn, supra, also a milk ordinance case, the ordinance was challenged on the premise that it conflicted with state statutes governing the same subject matter. In addressing itself to this topic the court said:
“. . . An ordinance enacted in the exercise of police power is not necessarily inconsistent with a state law on the same subject simply because the city provides higher standards than those provided by the statute. (Kansas City v. Henre, supra, 797.) An ordinance may not ignore the state’s regulatory acts, nor deny rights granted by the state, nor grant rights denied by the state so as to nullify the state law (Trimble v. City of Topeka, 147 Kan. 111, 75 P. 2d 241); but we have declared many times that a city by ordinance may extend regulation beyond the limits of general state statutes dealing with the same subjects. (Kansas City v. Henre, supra; Garden City v. Legg, 126 Kan. 569, 268 Pac. 827; State v. Reynolds, 152 Kan. 762, 107 P. 2d 728; City of Garden City v. Miller, 181 Kan. 360, 311 P. 2d 306.) It may be necessary in a congested district such as a city to make stricter regulations than are made and enforced by statute for the state at large. (Kansas City v. Henre, supra, 797, 798; Ash v. Gibson, 145 Kan. 825, 67 P. 2d 1101.)” (pp. 292, 293.)
The rule is stated similarly in Clemons v. Wilson, 151 Kan. 250, 98 P. 2d 423, where the issue narrowed down to whether an ordinance making it illegal to possess gambling devices was in conflict with a statute declaring it to be a nuisance to set up gambling devices. In the course of its opinion, determining that no conflict existed, the court employed this language:
“. . . The fact that the legislature made places where gambling devices are set up nuisances did not prohibit the cities from going further and making their possession an offense. The statute just did not go as far as the ordinance did, that is all. The reasoning in the case of City of Kansas City v. Henre, supra, is in point here. . . (p.256.)
Does the ordinance enacted by the city of Leavenworth constitute a reasonable exercise of the police power? This question, in our opinion, requires an affirmative answer.
In the course of its opinion in City of Beloit v. Lamborn, supra, this court noted that in areas of congestion it may be necessary to enact stricter limitations than for the state at large where, we may be permitted to add, rural areas predominate.
We take judicial notice that Leavenworth is a city of the first class with a population exceeding 25,000 and with a military post of ancient and honorable lineage seated on its doorstep. The problems which arise from the serving of alcoholic beverages to thirsty patrons unto the wee hours of the morning may well be more numerous, more disturbing and more acute in Leavenworth than the problems encountered in more rural and placid communities.
If what we have sometimes heard is correct, conviviality tends to expand as the hours grow later and the bottle completes its rounds more often. The later it becomes in those precincts where spirituous drinks are purveyed and consumed, the greater may be the likelihood, it would seem logical to expect, that disturbances would develop and the long road home be fraught with greater peril.
In our opinion, the ordinance in question is a valid and reasonable exercise of the police power, and hence it was not necessary that it be enacted as a charter ordinance. This much, in fact, was conceded by the city in oral argument as well as by amicus curiae, in its brief. Despite such concessions, however, we are asked, nay urged, to consider the Home Rule Amendment as it applies to the validity of the ordinance.
It would be inadvisable, in our opinion, to delve into that issue here. We deem the ordinance valid whether or not its enactment comes within the authority granted by the Home Rule Amendment. To go further at this time would be to indulge in dicta. This is not the occasion for a treatise construing article 12, § 5 and defining the powers bestowed thereby upon Kansas municipalities.
The judgment of the trial court is affirmed.
O’Connor and Prager, JJ., not participating. | [
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The opinion of the court was delivered by
Owsley, J.:
This is an appeal from an order denying petitioner s motion for post-conviction relief (K. S. A. 60-1507) after a full evidentiary hearing.
In December, 1967, petitioner and three other defendants were charged with armed robbery in the first degree pursuant to K. S. A. 21-527. At the end of December a preliminary hearing was held and the four defendants were bound over for trial. Petitioner was represented at the preliminary hearing by counsel appointed for him at that time.
The petitioner proceeded to trial in the district court and in April, 1968, was convicted by a jury of the crime of armed robbery in the first degree. Prior to trial, petitioner’s court-appointed attorney filed notice of a plea of alibi naming two persons, residents of Kansas City, Missouri, as alibi witnesses for petitioner. During the course of the trial petitioner’s attorney informed the court, out of the hearing of the jury, that neither alibi witness would be able to appear although one had agreed to appear voluntarily. The court directed that the trial proceed and the petitioner was the only witness who testified on his behalf.
In September of 1970 petitioner filed a petition to set aside his sentence under the Habitual Criminal Act. The petition was filed pursuant to K. S. A. 60-1507. Petitioner was granted an evidentiaryhearing in October, 1970.
Two points were heard; namely, that petitioner was denied effective assistance of counsel prior to and at the preliminary hearing, and that petitioner was denied compulsory process for obtaining witnesses to support a plea of alibi filed in the case.
The district court denied the petitioner’s motion and ruled that petitioner’s contentions were without merit. Petitioner now appeals from that ruling.
Originally, petitioner alleged five points upon which he was denied due process of law. Three of the points were disposed of in this court on appeal in State v. Yurk, 203 Kan. 629, 456 P. 2d 11. Neither of the two remaining points were presented in die original appeal.
The answer to the matter presented is found in Rule No. 121 of this court (205 Kan. xliv) prescribing the procedure under the provisions of K. S. A. 60-1507. The pertinent part of the rule is:
“(c) . . . (3) a proceeding under section 60-1507 cannot ordinarily be used as a substitute for direct appeal involving mere trial errors or as a substitute for a second appeal. Mere trial errors are to be corrected by direct appeal, but trial errors affecting constitutional rights may be raised even though the error could have been raised on appeal, provided there were exceptional circumstances excusing the failure to appeal.” (p. xlv.)
In Lee v. State, 204 Kan. 361, 461 P. 2d 743, we held:
“A proceeding instituted -under the provisions of K. S. A. 60-1507 which collaterally attacks a judgment of conviction is not to be used as a substitute for a second appeal.” (Syl. ¶ 1.)
In Cantrell v. State, 206 Kan. 323, 478 P. 2d 192, K. S. A. 60-1507 was used to try to vacate petitioner’s sentence. We held:
“A proceeding pursuant to the provisions of K. S. A. 60-1507 cannot ordinarily be used for the purpose of reviewing trial errors which might have been reviewed in the original appeal. (Syl. j[ 3.)
Upon examination of the record, we are unable to find any unusual or intervening changes in law which prevented this petitioner from raising all of his alleged trial errors in the direct appeal.
In Hacker v. State, 207 Kan. 195, 483 P. 2d 484, we stated:
“. . . Some degree of finality in the criminal appeal process must be achieved to prevent endless piecemeal litigation in both the state and federal courts. . . .” (p. 197.)
Petitioner alleges he was denied the effective assistance of counsel at the preliminary hearing against him and this violated his constitutional rights.
In State v. Zimmer, 198 Kan. 479, 426 P. 2d 267, we stated that an accused has the right to effective assistance of counsel at every critical stage of the proceedings.
Effective assistance of counsel at trial was defined in State v. Weigand, 204 Kan. 666, 466 P. 2d 331, where it was stated:
"The brevity of time between assignment of counsel and the trial bears directly upon the question of whether the accused is denied the right to effective assistance of counsel. . . .” (p. 671.)
In this case, petitioner is claiming ineffective counsel at the preliminary hearing rather than at the trial. Petitioner alleged that since he had no opportunity to confer with his counsel prior to the hearing the attorney was reduced to the role of a mere perfunctory at a critical stage in the proceedings against him.
On this point there is no evidence except petitioner’s testimony that he had no opportunity to confer with his counsel prior to the hearing.
We have no difficulty in concluding this evidence fails to constitute sufficient legal grounds for vacating petitioner’s judgment and sentence. It is especially true because petitioner could have raised this point in a direct appeal from the conviction, and is attempting to convert this proceeding into a substitute for a second appeal.
Petitioner’s contention on the second point is that when his counsel approached the bench to inform the court that neither alibi witness would appear and neither knew anything about the case, it should have been treated as a motion for a continuance until such time as a subpoena could be issued to compel their appearance. The existence of the alibi witnesses was not made known to petitioner’s attorney until two days before the trial. The fact that petitioner allowed four months to elapse between the preliminary hearing and trial without any mention of an alibi witness or motion for a continuance to locate them does not aid petitioner in sustaining the burden of proof on this appeal.
No motion for a continuance need be entertained by a court without an affidavit containing the witness’s name, residence, expected testimony, affiant’s verification, and efforts to obtain attendance. (Jackson v. State, 204 Kan. 823, 465 P. 2d 927.) Petitioner’s court- appointed counsel who represented him at his trial testified for the state at the evidentiary hearing on this motion that he believed neither witness would be able to prove an alibi. Petitioner did not call the attorney who was appointed to represent him at the preliminary hearing. In view of these facts, there does not appear to be any factual basis for relief.
The trial court in denying the motion found that petitioner failed to sustain the burden of proof. We agree with the trial court’s finding.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harman, C.:
Appellant Vera Irene Phippen was convicted by a jury of the offense of robbery in the first degree and given the statutory sentence. She appeals from that judgment.
Evidence for the prosecution revealed the following: At about 9:45 p. m. on October 13, 1969, a lone female, later identified as appellant, entered the Save-U-More Grocery located at Twelfth and Osage streets in Kansas City, Kansas. She was wearing a black scarf and a brown leatherlike coat and carried a hand-tooled purse. The only other persons present were three store employees — a woman in charge, the cashier, and a stock boy who remained in the back of the store during the ensuing episode.
Appellant walked around the store and then approached the supervisor, talked with her and asked her to go to the meat counter in the rear and procure some bologna. When the supervisor went to the rear of the store in compliance with this request appellant turned to the checkout stand and displayed a small black handgun. She announced a holdup and told the cashier to open the cash register and give her all the money. The cashier opened the drawer. Appellant grabbed a sack, put about $138.00 from the drawer in it and ran out the door. The store employees immediately telephoned the police, giving a general description of the robber.
Several police officers responded promptly. En route to the scene two officers observed a green Thunderbird automobile stalled in the street just one block west of the grocery store. The vehicle was in the right northbound lane of traffic with its hood up. A man was standing beside the left front fender. Several officers entered the store and were given a more complete description of the robber, her garb and purse. The alley behind the store was dirt with spots of water standing in it. An investigating officer noticed muddy tire tracks in the alley which led directly up to the rear wheels of the stalled Thunderbird, indicating it had recently been driven from the alley. No one was in evidence around the car. A brown leather coat, a brown hand-tooled purse, a black scarf and a holster were lying in plain view in the car, as well as syringes and papers. Appellant’s name was in the purse. Police impounded the vehicle and its contents.
Upon immediately checking the license tag of the vehicle two police officers seemed an address and then as a result went to a nearby apartment which was rented by persons named Coffey. The officers arrived there about an horn after the robbery. They knocked at the front door and when there was no response they went to the back door. En route to the back door they looked through a kitchen window and saw five persons inside, two women and three men, seated at a table. The officers recognized one of the men, later identified as a Roger Lofton, as the person they had seen standing by the stalled Thunderbird a few minutes after the holdup. When a dog barked the lights in the room went out. The two officers had previously summoned additional help but none had yet arrived. The officers then knocked on the back door, identifying themselves as police officers. Mr. Coffey, the tenant, told officers they could enter, which they did. Four persons were in the room, including appellant. Mr. Lofton had disappeared. One officer went toward the front part of the apartment in search of him and located him in a bathroom. This officer arrested Lofton and at the same time discovered a pistol in a wastebasket in the bathroom. Appellant was also arrested and taken to the police station. Upon seeing the hand-tooled purse in possession of the officers appellant asked where they had obtained her purse. Shortly thereafter she was placed in a police lineup and identified by the two women employees as the store robber.
At the trial the two employees identified appellant as the robber, and the scarf and the brown leather jacket as clothing worn by her at the time. These articles along with the holster found in the car were admitted into evidence. The gun retrieved from the wastebasket was identified by the cashier as the one placed upon her by appellant and, over the latter s objection, it was received in evidence. An authenticated record of appellant’s conviction of the offense of first degree robbery in 1966 in the state of California was also received in evidence.
As a witness in her own behalf appellant testified that she lived in Topeka and on the day in question had come to Kansas City with Mr. Lofton to visit the Coffeys; the trip was made in a green Thunderbird in which she had left her purse; while she was visiting the Coffeys Lofton left the house; about 9 or 9:30 that evening she left, dressed in a leopard skin coat with a black collar, and walked to the store in question; after conversing with the supervisor about buying either garlic or ring bologna, she walked over to purchase some candy for the children; suddenly realizing she did not have her billfold or her purse with her, she walked out of the store and returned to the Coffey’s house; later Lofton returned and stated his car had “blown up”. Appellant denied having seen the brown coat, black scarf, the gun or the holster and denied having committed the robbery.
Appellant presents several assignments of trial error. She first complains that in his voir dire examination of the jury and again in his opening statement the prosecuting attorney twice referred to her as “the criminal defendant”. She charges this prejudiced her in the eyes of the jurors. No objection was made, or any question raised, at trial level respecting these statements, which omission may well reflect the gravity of the complaint. Without condoning the use of epithets which in any way might be construed in derogation of the presumption of innocence which attaches to one on trial for crime, we cannot believe the jury was in anywise influenced to appellant’s prejudice by the conduct complained of.
Of more concern are other remarks made by the prosecution in voir dire examination. After briefly outlining the charge the prosecuting attorney stated:
“Now, you realize that the State will present evidence to back up the facts— back up the charge; that the criminal defendant, Vera Phippen has the opportunity to testify and you can expect that if she does tetstify, she is going to deny everything that the State says, or she is going to try to contradict it. If she didn’t do that, we wouldn’t be here today.”
Motion for mistrial was immediately made, and discussion had thereon, outside the presence of the jury. The trial judge denied the motion and in open court stated to the jury:
“The Court: I feel I should say something. In the first place, any person charged with a crime is presumed to be innocent. That presumption goes with them until their guilt is established to the satisfaction of the jury beyond a reasonable doubt. No person is required to give any evidence. I don’t know whether this lady is going to take the stand or not. She may testify; she is not required to. If she does, or if she doesn’t, you will be appraised in the Court’s instructions as to any effect this may have.
“Now, I don’t think Mr. Tomasic meant anything wrong by saying that she would take the stand and deny it. He can’t know this. She may take the stand and deny it or she may not take the stand at all; she has these options.
“I think you may go ahead.
“Mr. Tomasic: Thank you, Your Honor. Ladies and gentlemen of the jury: What I was getting at is after the State presents its evidence, the defendant will have the opportunity, if she desires, to present evidence. Then when this is finished, you people — the twelve that are selected — will have a job to do. You are going to have to make a decision, and if you feel that the evidence warrants a conviction, you will have to come back to this courtroom and tell the Judge and tell the attorneys and tell Vera Phippen that you believe that she is guilty.
“Now, what I want to know is, is there anyone here who feels that either he or she cannot return to this courtroom and tell the Judge that they feel the evidence warrants Vera Phippen being guilty? If anyone feels that they can’t do that, we would like to know right now.”
Appellant contends the incident violated her constitutional right not to testify and to have no allusion made by the prosecution to the exercise of that right and in fact placed her in a position where she was compelled to testify. Her principal argument is the trial judge’s instructions were inadequate to dispel the prejudice which the remarks calculatedly generated in that he failed at the time of the incident to tell the jury that no inference of guilt could be drawn from any failure of appellant to testify.
A prosecutor skates on thin ice when he ventures into the area of the exercise by an accused of his constitutional right against self-incrimination (see Griffin v. California, 380 U. S. 609, 14 L. ed. 2d 106, 85 S. Ct. 1229). The subject is scarcely a proper one for voir dire inquiry and its exploration before a jury at any time might well lead to impermissible constitutional infringement. Here, how ever, the inquiry stopped before the mention had extended that far. Counsels statements did not amount to comment on appellant’s failure to testify because the trial had not yet reached a stage evincing her choice as to testifying. The trial court immediately instructed the jury as to the presumption of innocence of an accused until proven guilty beyond a reasonable doubt and it pointed out that appellant was not required to testify. The court also gave assurance it would further instruct the jury at the appropriate time respecting appellant’s choice as to her testimonial rights. We think the trial court carefully safeguarded appellant’s right against self-incrimination and no harm was done.
Appellant next complains of the conduct of the police lineup at which she was identified. The lineup was held in the absence of counsel; however, appellant concedes she was advised of her right to have counsel present. Her complaint is directed toward the difference in ages of the various women who participated in the lineup.
We think appellant may not now challenge the propriety of the lineup by reason of her position at trial, revealed in the following colloquy between her and her counsel:
“Mr. Feering: Your Honor, we mentioned this question of a lineup, and I think, for the record, we will withdraw any objection to the lineup, and the defendant agrees with me that we want the evidence on the lineup in, because it would serve a useful purpose. Is that correct, Irene?
“The Defendant: Yes.”
Appellant not only waived objection to the lineup evidence, she expressly requested its admission as a matter of trial strategy. It is fundamental that a litigant who invites and leads a trial court into error will not be heard on appeal to complain of that action (Smith v. Veeder Supply Co., 137 Kan. 124, 19 P. 2d 699).
Appellant complains the trial court erred in admitting the handgun into evidence because it was obtained in violation of constitutional standards prohibiting unreasonable search and seizure. We think the contention has no merit for the reason the gun was properly taken as incident to a lawful arrest of Roger Lofton. The arresting officers had seen Lofton at the stalled Thunderbird soon after the holdup of the grocery store. Muddy tracks indicated the vehicle had recently been driven from the alley in the rear of the store. When the officers returned to the vehicle Lofton had disappeared but contained therein in plain view was further incriminating evidence relevant to the holdup — a black scarf, brown coat and hand-tooled purse, plus a holster. Soon thereafter Lofton was seen inside a room at an address discovered through a check of the vehicles license tag. The arresting officers were lawfully on the premises when they first sighted Lofton inside and they had express permission from the tenant to enter that apartment. They had probable cause to arrest Lofton, and incident thereto within the close confines of the bathroom, both as a matter of self-protection and to avoid concealment or destruction of evidence, to seize the handgun (see Chimel v. California, 395 U. S. 752, 23 L. ed. 2d 685, 89 S. Ct. 2034).
Appellant also complains of the admission of the coat, scarf and holster into evidence, again on the basis of unlawful search and seizure. At trial appellant stated she had no objection to the reception of these items into evidence when offered by the prosecution. Her statement of points upon appeal makes no mention of this issue as mandated by Rule 6 (d) of this court relating to appellate practice (205 Kan. xxix). Review of this purported error is precluded for each of the foregoing reasons. Beyond this, however, considering the issue on its merits, no error appears. As already indicated, the officers looked through the window of the stalled auto and saw the incriminating articles in plain view so there was neither unreasonable search nor seizure (State v. McMillin, 206 Kan. 3, 476 P. 2d 612).
Appellant complains she was not permitted to show that charges against Roger Lofton were dismissed by a police officer. She says Lofton was the real culprit and that her best defense was prejudiced by this refusal but she presents nothing cogent in support of this statement. The matter arose upon her cross-examination of a police officer. Colloquy between trial counsel reveals appellant made no real proffer of evidence at the trial to support her allegation that charges against Lofton had been dismissed. In any event, in view of the direct rather than circumstantial evidence against appellant, the fact someone else may have participated with her in the holdup would not be a defense to her and the trial court did not improperly handle this collateral issue of disposition of other charges.
Appellant contends the court erred in admitting evidence of her previous conviction of first degree robbery. At trial defense counsel stipulated the authenticity of the record evincing that conviction in California but objected to its reception on the basis of irrelevancy. Appellant renews this objection and also challenges the adequacy of the limiting instruction given to the jury. Both contentions have frequently been determined by this court adversely to appellant’s position (see cases cited at K. S. A. 1971 Supp. 60-455).
Finally appellant challenges the sufficiency of the evidence to sustain her conviction. She was positively identified as the robber by the two store employees, each of whom talked with her and observed her face at extremely close range. Other incriminating evidence need not be iterated. Suffice it to say the guilty verdict was amply supported by evidence.
Judgment affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Harman, C.:
This was an action against a bank for damages for wrongfully dishonoring a check drawn upon it to pay a life insurance premium. Plaintiff was the beneficiary in the policy which lapsed shortly before the death of the insured for nonpayment of the premium. Summary judgment was entered for the bank and plaintiff has appealed.
Plaintiff Tonie Torkelson, Sr., filed his petition against the defendant Bank of Horton on September 2, 1964, alleging the following: That during his lifetime Tonie Torkelson, Jr., had issued to him by the Knight’s Life Insurance Company a policy of life insurance insuring his life in the amount of $20,000, with double indemnity in case of accidental death; that plaintiff was named as beneficiary in the policy if living at the time of Tony Junior’s death; a premium of $143.20 became due on the policy and on September 17, 1962, Tony Junior remitted this premium to the insurance company by means of a check for that amount drawn by him upon an account maintained by him in tire defendant bank; the insurance company deposited the check but on September 27, 1962, the de fendant bank returned it to the insurance company because of insufficient funds in Tony Junior s account; the insurance company resubmitted the check to the defendant bank and on October 9, 1962, the bank again declined to honor the check and returned it marked “insufficient funds”; that on either one or both occasions upon which the check was received by the bank there were sufficient funds in Tony Junior’s account with which to pay the check but it was not paid due to the negligence and wilfulness of the bank; by reason of the fact the check was not paid the insurance policy on the life of Tony Junior lapsed; he was accidentally killed on October 23, 1962, and if Tony Junior’s check had been honored by the bank when received the insurance would have been in effect at the time of his death and plaintiff would have received the sum of $40,000 from the insurance company. Plaintiff prayed for judgment against the bank for that amount.
The bank filed its answer in which it admitted the issuance of the policy upon the life of Tony Junior and his accidental death as alleged by plaintiff. It admitted that the $143.20 check drawn by him and made payable to the insurance company was presented to it for payment on September 24, 1962. The bank alleged it returned the check because Tony Junior did not have sufficient funds in his account to pay it; that Tony Junior was informed the check had been returned for insufficient funds. The bank further alleged that on October 3, 1962, Tony Junior came into the bank in company with John, Florence and William R. McEnulty and stated to the bank president and an employee that he was selling a bulldozer to the McEnultys for an agreed price of $3,600 on condition that a certain repair bill for work to be done on the bulldozer by a Wayne Haupp be paid as soon as the work was completed; it was agreed between Tony Junior and the McEnultys that the bank retain out of the purchase price the sum of $565.00 in the former’s bank account with which to pay the repair bill, and for no other purpose, and the bank was not to permit the account to become less than $565.00 so that the repair bill could be paid; the bank so tabbed its records in accord with this agreement; on October 9, 1962, Tony Junior’s check to the insurance company was again presented for payment, was again returned marked “insufficient funds” because payment of the check would have resulted in the checking account containing less than $565.00 and Tony Junior was again informed the check had been returned for insufficient funds. The bank’s answer further pleaded plaintiff was not the real party in interest to assert the claim.
Plaintiff filed a reply, the nature of which we need not set out except to indicate it took issue with the new matter pleaded in the bank’s answer.
Following the filing of this last pleading October 16, 1964, the case went into a state of repose, languishing for some unknown reason until a pretrial conference was held March 5, 1970, new counsel for plaintiff having entered the case meanwhile. In the pretrial order the factual and legal issues were defined generally as those raised by the pleadings. The bank filed its motion for summary judgment upon the ground plaintiff was not the real party in interest. On March 13, 1970, the court sustained this motion and plaintiff has appealed.
The rationale of the trial judge’s decision was stated thus:
“I conclude that the plaintiff is not the real party in interest and has no right to bring this action. He was not a creditor of the defendant bank and had no interest in the creditor and debtor relationship of the decedent and the defendant. Any cause of action the decedent had in the debtor-creditor relationship against the defendant would have to be instituted by the decedent in his lifetime, or by his administrator or executor, after his death.” ■
We must agree with the trial court’s conclusion that plaintiff had no right to bring the action, which is simply another way of saying his petition did not state a claim upon which relief could be granted to him.
Apparently, in the trial court as well as here, the parties have considered the crucial point to be whether plaintiff was the real party in interest within the meaning of our procedural code. It may well be doubted if the correctness of the trial court’s ruling turns, or was so intended by that court to turn, upon the narrow procedural aspect of the real party in interest rule as employed in its usual sense, although the situation presented is closely akin thereto.
Our statute on the subject states:
“Real party in interest. Every action shall be prosecuted in the name of the real party in interest. . . .” (K. S. A. 60-217 [a].)
The statute then specifically authorizes certain classes of persons to prosecute actions.
The phrase “real party in interest” as used in our code as well as in the equity procedure from whence it sprang generally came into being in determining which of two or more persons might properly bring an action where holders of assignment or subrogation rights, either whole or partial, holders of different interests in the same property, holders of equitable interests, representatives, trustees and the like were concerned (see James, Civil Procedure § 9.2, et seq.). The requirement that an action be brought by the real party in interest has as one of its principal purposes the protection of the defendant from being repeatedly harassed by a multiplicity of suits for the same cause of action so that if a judgment be obtained it is a full, final and conclusive adjudication of the rights in controversy that may be pleaded in bar to any further suit instituted by any other party (First National Bank of Topeka v. United Telephone Ass'n, 187 Kan. 29, 353 P. 2d 963). One standard frequently applied is that the real party in interest is the one entitled to the fruits of the action, and the phrase “real party in interest” is grammatically quite capable of that meaning (James, Civil Procedure, § 9.2). In 3A Moore’s Federal Practice (2d ed. 1970) § 17.02, the author has this to say:
“The meaning and object of the real party in interest provision would be more accurately expressed if it read: An action shall be prosecuted in the name of the party who, by the substantive law, has the right sought to be enforced." (p. 53.)
A party’s substantive right to recover in a particular action is neither enlarged nor restricted by the provisions of the real party in ■interest rule and we look then to substantive law to see what if any claim for relief plaintiff here has stated in his petition. First of all plaintiff clearly bases his claim upon the alleged wrongful act of the bank in failing to honor Tony Junior’s check for the insurance premium at a time when sufficient funds were in the account with which to pay the check. But, accepting as true plaintiff’s version of events, was plaintiff legally wronged by this act?
A check of itself is not an assignment of the funds in the hands of the drawee bank (Anderson v. Elem, 111 Kan. 713, 208 Pac. 573, 23 A. L. R. 1202). Generally it is the duty of a bank to honor checks drawn on it by a depositor if the drawer has on deposit sufficient funds when the check is presented which are not subject to some lien or claim, and for an improper refusal to honor the check the depositor has an action against the bank for any damage which may have been sustained by reason of such refusal. However, the same liability does not inure to the benefit of a holder or payee of a check and the bank is generally not liable to the holder unless and until it accepts or certifies the check. (10 Am. Jur. 2d, Banks, §§ 567, 568). In connection with the latter rule it must be kept in mind that if, by virtue of special circumstances in addition to the mere issuance of the check, the check is deemed to be an assignment pro tanto of the funds called for, the holder may sue the drawee bank for its payment if there are sufficient funds to meet the check, even though it was not accepted or certified. This was the situation in Ballard v. Bank, 91 Kan. 91, 136 Pac. 935, which case is principally relied upon by plaintiff for reversal here.
In Ballard the factual situation and the court’s holding are summarized in the syllabus thus:
“Where a national bank through its president agrees with a customer, who is indebted to it, that if he purchases live stock and in payment therefor gives checks on the bank, the checks will be paid provided that by the time they are presented the drawer shall have resold the stock and deposited the proceeds with the bank, and in pursuance of such agreement the customer issues checks in payment for stock which he at once resells, delivering the proceeds to the bank, the holder of such checks can maintain an action for their amount against the bank, notwithstanding he did not know of the agreement, and notwithstanding nothing was said at the time the deposit was made about the agreement or the application of the funds.”
In the opinion the court had this to say:
“The defendant further maintains that whatever may be the relations between the bank and Stewart (the drawer), the plaintiffs have no cause of action against the bank, because there is no privity between them. Of course, by the usual rule, which obtains in this state, the holder of a check can not ordinarily maintain action thereon against the bank, notwithstanding it may have had funds to meet it when it was presented. [Citations] Special circumstances, however may give to the issuance of a check the character of a pro tanto assignment thereby vesting in the holder a right of action upon it against the bank on which it is drawn. [Citation] Here the actions are not brought upon the checks alone but upon the entire transaction, of which the giving of the checks forms a part.” (pp. 95-96.)
The principle applicable in Ballard does not help plaintiff, who was neither the payee nor holder of the check presented for payment nor were there special facts or circumstances attending the drawing or delivery of the check which could give rise to making its issuance something in the nature of a pro tanto assignment of the funds called for by the check.
It must be borne in mind the insurance policy lapsed during the lifetime of Tony Junior. Any breach of duty by the bank by reason of its failure to honor the check, tortious or otherwise, wronged him and no reason is apparent why he could not have maintained an action against the bank for any consequential damage sustained by him because of the bank’s wrongful dishonor of the check. Tony Junior did not commence any action against the bank and we need not determine whether any such action survived his death as that question is immaterial. What is important is that when the bank returned the check it breached no duty to plaintiff arising either from contract or from the common law. Plaintiff was not injured, he suffered no damage and he could not then have maintained an action against the bank. Plaintiff argues the insurance policy would never have become an asset of the estate and was not liable for debts of the estate and hence he and not the representative of the estate is the proper person to go after the bank for its wrong. The fallacy in the argument lies in its assumption of the existence of a valid policy at the time of the insured’s death, which was not the case. The well-established rules respecting bank checks fairly well dispose of recovery on the basis of a contract for the benefit of a third party, and we simply are unable to see any other theory upon which Tony Junior’s death matured in plaintiff some greater claim than plaintiff had at the time of the bank’s alledged wrongful act.
The trial court correctly entered summary judgment for the defendant bank and that judgment is affirmed.
APPROVED BY THE COURT.
O’Connor and Prager, JJ., not participating. | [
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|
The opinion of the court was delivered by
Harman, C.:
This is an original proceeding in mandamus brought by plaintiff requesting that this court order defendant, administrative judge of the Twentieth Judicial District of Kansas, Division One, to disqualify himself pursuant to Section 3, Chapter 198, Laws 1971 (now K. S. A. 1971 Supp. 20-311d, et seq.).
Certain facts forming the background of this proceeding, which are not in dispute, may be gleaned from plaintiff’s petition. Briefly stated, plaintiff alleges he files this action individually and as representative of a class of persons, corporate and individual, who are clients of the law firm of Turner & Balloun, Chartered, and have cases pending in the Twentieth Judicial District, in which district there are two divisions; that he is plaintiff in an action brought in the district court of Barton county in the Twentieth Judicial District entitled Charles Hulme, d/b/a Charles Hulme Construction Company, versus Roy W. Stevens and Andy Kindsvater Trucking Co., Inc., defendants, case No. 23,950; that on July 19, 1971, certain members of the Turner firm signed and filed an affidavit pursuant to Section 3, Chapter 198, Laws 1971, for the purpose of disqualifying defendant, on the ground of bias and prejudice, from further participation in or presiding over plaintiffs case, and on September 1, 1971, plaintiff signed and filed his affidavit in the case for the same purpose; on September 1, 1971, defendant ordered a hearing to be held as a result of the filing of the affidavits and on September 9, 1971, over plaintiffs objection, defendant held a district-wide hearing as to all cases in which similar affidavits had been filed either by the Turner law firm or by their clients, at the conclusion of which hearing defendant found the affidavits to be frivolous and without merit and denied the relief sought; defendant further ordered that five copies of the transcript of the September 9, 1971, hearing be made, the cost thereof to be taxed against the Turner firm.
The affidavit signed by the attorneys contained a general allegation of bias and prejudice on the part of defendant and recited as examples certain occurrences in nine prior cases in which he had presided as judge and in which an attorney of the Turner firm had appeared on behalf of one of the litigants; broadly stated, the events described consisted of several rulings made by defendant adverse to the litigants represented by the Turner firm and also, in other cases, remarks and comments by him relative to the conduct and tactics of tiie particular attorney member of the firm who participated in the case. The affidavit signed by plaintiff, omitting formal parts, reads as follows:
“I, Charles Hulme being of lawful age after first being duly sworn upon my oath allege and state:
“First, that I am a party to the above-captioned case and am represented therein by Turner & Balloun, Chartered, attorneys at law;
“Second, that an affidavit has previously been filed herein by said attorneys stating facts and reasons upon which a belief that personal bias and prejudice exists on the part of the Honorable Frederick Woleslagel, Judge, Division I of the Twentieth Judicial District;
“Third, that said affidavit was filed for the purpose of disqualifying said judge from any further participation in the trial of this case;
“Fourth, that I have read said affidavit and the contents thereof have been fully and completely explained to me;
“Fifth, that on the basis of said information and other numerous facts and circumstances explained to me by my said attorneys, I believe that personal bias and prejudice on the part of said judge exists and I am of the opinion the same would make it difficult for us to have a fair and impartial trial before the Honorable Frederick Woleslagel.
“Sixth, that I am filing this affidavit for the purpose of disqualifying said judge from any further participation in the trial of this case.
“Seventh, that by reference I hereby incorporate the contents of said attorney’s affidavit into this affidavit as if fully set forth herein.
“Eighth, that the purpose of this affidavit is to comply with the provisions of Ch. 198 [1971] Kan. Sess. Laws.”
Preliminarily, we note that the exercise of a trial court’s discretion cannot be controlled by mandamus, but where an order of the trial court denies a litigant a right or privilege which exists as a matter of law, and there is no remedy by appeal, mandamus may be invoked.
Simply stated, plaintiff’s position is that the provisions of the 1971 enactment give him a right as a matter of law to have his case transferred to another division of the court when he timely files an affidavit alleging any of the grounds set out in the statute; that under K. S. A. 60-2102 (a) he has no appeal as of right from the order denying a transfer, nor does an intermediate appeal lie under K. S. A. 60-2102 (b) because the order does not involve a controlling question of law. Defendant’s contentions in opposition will be presently stated.
Before reciting and considering the statute in question it may be helpful to an understanding of the contentions of the parties relative to the construction to be placed upon it to survey briefly legislation enacted elsewhere pertaining to disqualification of a trial judge on the ground of bias or prejudice, as judicially construed. Some states have neither constitutional nor statutory provision on the subject and the matter of recusation is left to the good conscience of the individual judge. In a few states the appellate courts have, under their rule-making power, prescribed a procedure. Many, however, now have some type of legislation. Those having statutory procedures for recusation for bias or prejudice may be categorized in three groups, based on the ease with which a change may be obtained, although slight variations exist within each group.
Some states require that the factual issues of prejudice be heard and determined before a judge is to be recused, that is, his actual prejudice must be proved in order to obtain his disqualification. In this group several jurisdictions require that another judge hear and determine the fact of prejudice, while others permit the challenged judge to determine his own state of mind (Kansas, with some exception, generally fell into this latter class prior to the enactment of the legislation under consideration [see Flannery v. Flannery, 203 Kan. 239, 452 P. 2d 846]).
The next group comprises those jurisdictions which require the filing of an affidavit of prejudice containing facts but without a hearing on the fact of prejudice. The affidavit must contain a general allegation of prejudice, plus factual statements supporting the charge of prejudice, and the judge passes only on the legal sufficiency of the affidavit — not on the truth of the. facts alleged. Representative of this group is the federal statute which provides that when a party to a proceeding in district court files a timely and sufficient affidavit, certified to have been made in good faith, that the judge has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding. The federal act contains this further proviso: “The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists. . . .” (28 USCA ¶144). Here the facts alleged in the affidavit are taken as true, but those facts “must give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment” (Berger v. United States, 255 U. S. 22, 33-34, 65 L. ed. 481, 41 S. Ct. 230). In this category of jurisdictions, as indicated, the trial judge, in the first instance, passes only on tibe legal sufficiency of the affidavit filed against him.
The third group of jurisdictions requires only the filing of an affidavit stating that the affiant believes he cannot obtain a fair trial because of the judge’s bias or prejudice. Facts underlying the affiant’s belief need not be stated in the affidavit, a conclusory type of allegation being sufficient, and disqualification of the judge from further participation is automatic without any hearing on the truth or the legal sufficiency of the matter alleged in the affidavit. No discretion is vested in the judge against whom the affidavit is filed as to his recusation as it is the filing of the affidavit itself which disqualifies the judge and not the actual existence of circumstances which would in fact disqualify him. Typical of this type of statute is that of Arizona (Ariz. Rev. St. Anno. §§ 12-409, 410, 411) which has been termed a mandatory disqualification statute by reason of the fact that under it a litigant has an absolute substantive right to obtain a change of judge upon the filing of an affidavit containing the statutory language (for an excellent discussion of the groups mentioned see “Disqualification of Judges For Prejudice or Bias— Common Law Evolution, Current Status, and The Oregon Experience,” 48 Oregon Law Review 311 [1969]).
K. S. A. 1971 Supp. Chapter 20, the interpretation of which is the subject of this proceeding, provides in pertinent part:
“20-311d. (a) If either party to any action in a district court files an affidavit alleging any of the grounds specified in subsection (b) the administrative judge shall at once transfer the action to another division of the court if there is more than one division, or shall request a judge of another judicial district be assigned to preside in such cause. If an affidavit be filed in a district court in which there is but one division or judge, then such judge shall at once notify the departmental justice for such district and request the appointment of another judge to hear such action.
“(b) Grounds which may be alleged as provided in subsection (a) for change of judge are:
“(1) That the judge has been engaged as counsel in the action prior to the appointment or election as judge.
“(2) That the judge is otherwise interested in the action.
“(3) That the judge is of kin of or related to either party to the action.
“(4) That the judge is a material witness in the action.
“(5) That the party filing the affidavit has cause to believe and does believe that on account of the personal bias, prejudice, or interest of the judge he cannot obtain a fair and impartial trial. Such affidavit shall state the facts and the reasons for the belief that bias, prejudice or an interest exists. [Emphasis supplied]
“20-311e. No judge or court shall punish for contempt any one making, filing or presenting the affidavit provided for by section 3 [20-311d] of this act, or any motion founded thereon.
“20-311f. (a) No party shall be granted more than one change of judge in any action, but each party shall be heard to urge his objections to a judge in the first instance: Provided, however, That a party shall have seven (7) days after pretrial, or after receipt of written notice of the judge to which the case is assigned or before whom the case is to be heard, whichever is later, in which the affidavit may be filed.
“(b) The trial shall be held within the county in which venue lies.”
Plaintiff urges this statute should be construed as a mandatory disqualification statute, arguing it contains language similar to that in the Arizona statute cited and should be similarly construed. Plaintiff also points out we formerly had a disqualification statute applicable to justices of the peace (K. S. A. 61-701, since repealed) which required only the filing of a conclusory type affidavit that the party believed he could not have a fair and impartial trial on account of the bias or prejudice of such justice against the affiant, and which this court interpreted as a mandatory disqualification statute (Weaver v. Wilson, 112 Kan. 417, 211 Pac. 142; Borden v. Miles, 130 Kan. 808, 288 Pac. 563). In arguing that the question there passed upon is analogous to the one at bar plaintiff directs attention to the following language in Borden:
“The right of a litigant before a justice of the peace to a change of venue upon the timely filing of an affidavit with a statement of the statutory grounds therefore is absolute under the statute, [p. 810] . . . The statutory affidavit which contains the requisite recitals literally lifts the cause out of the justice’s jurisdiction, leaving him naught to do except the performance of his ministerial duty of transferring the cause to another justice of the peace and forwarding the papers to such other justice together with a certified transcript of the proceedings.” (pp. 811-812.)
In response defendant asserts the mere filing of an affidavit purporting to comply with the statute should not in and of itself cause the disqualification of a judge against whom the affidavit is directed and that the statute is more akin to the federal statute and should be similarly construed. Defendant further says the affidavits which were actually filed were not legally sufficient to require disqualification under the statute. In this connection he argues our legislature intended by its use of the term “personal” in our statute that the bias or prejudice must be one directed personally toward the party litigant rather than against his attorney. He also asserts the procedure employed here amounts to a blanket-type disqualification, which practice should not be permitted. Finally, he contends that if it be held the statute requires automatic disqualification of a judge without a determination of sufficiency, then the statute is unconstitutional as violative of the separation of powers’ doctrine.
Our review of the statutes on the subject elsewhere indicates none of them, standing alone, is sufficiently similar to our own to dictate adoption of a particular construction here. As is normally true in statutory construction, legislative intent may best be determined from the plain meaning of the words used in the statute in the light of all the experience available to the law-making body. We consider first whether the legislature intended a mandatory disqualification type statute, as that in Arizona, or a hearing type statute, as in the federal code. As initially introduced by the House Judiciary Committee at the 1971 legislative session the proposed law (HE 1297) did not contain the language we have italicized in quoting the final enactment, that is, in subparagraph (5) of what is now K. S. A. 1971 Supp. 20-311d (b) the word “personal” did not appear nor did the last sentence therein: “Such affidavit shall state the facts and the reasons for the belief that bias, prejudice or an interest exists”. This sentence, and the word “personal”, were added by amendment dining the legislative process prior to final adoption. As initially introduced the proposal did bear considerable resemblance to the Arizona statute, but we cannot overlook the amendment thereafter made. Plaintiff argues that the purpose of adding the sentence in question was merely to supply an additional safeguard against abuse of the remedy. When our research discloses no statute construed to be of the mandatory disqualification type which contains such a proviso, this argument loses much of its appeal. And, of course, our old justice of the peace statute, which was construed to require mandatory disqualification, contained no provision for a statement of facts and reasons.
The historical background, legislative proceedings and changes made in a statute during the course of enactment may be considered by a court in determining legislative intent (Urban Renewal Agency v. Decker, 197 Kan. 157, 415 P. 2d 373). The sentence which was added to the statute during the course of its enactment is virtually identical to that found in the federal disqualification statute (28 USCA § 144). This is significant and leads us to believe the legislature had the federal practice in mind in making that amendment. Although this particular statute contains no requirement for a certificate by counsel that the party’s affidavit is made in good faith, as does the federal statute, we note that another statute already on the books provides that every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, and further, that the signature of an attorney constitutes his certificate that he has read the pleading and to the best of his knowledge, information and belief there is good ground to support it and that it is not interposed for delay (K. S. A. 60-211). We conclude then that the provisions of K. S. A. 1971 Supp. 20-311d, e and f do not prescribe a mandatory type procedure for disqualifying a judge for bias or prejudice, but rather contemplate a hearing as to the legal sufficiency of the affidavit — not as to the fact of bias or prejudice. We further hold the affidavit must contain facts and reasons which give fair support for the belief that on account of the bias or prejudice of the judge the affiant cannot obtain a fair trial.
Having reached this conclusion we are confronted with the further procedural question as to who should make this determination of legal sufficiency? Our statute appears to be unique, an admixture differing in important respects from the federal statute and those of other jurisdictions requiring a sufficiency hearing. Again we think its entire provisions must be read and considered together so as to give effect to all sections where possible.
20-311d (a) provides that upon the filing of an affidavit alleging any of the grounds specified in subsection (b) the administrative judge “shall at once transfer the action to another division of the court if there is more than one division, or shall request a judge of another judicial district be assigned to preside in such cause”. The statute then provides for the use of departmental justice assignment of another judge in the case of a one judge or one division district court. Transfer is the first step called for by the statute (or request for assignment of another judge so that transfer may be made). 20-311f provides that “each party shall be heard to urge his objections to a judge in the first instance.” Clearly this relates to objections to a judge on the basis of his bias or prejudice under subparagraph (5) of 20-311d (b). The hearing referred to is on the legal sufficiency of the affidavit. To sustain the request for change the judge must find that the party seeking the change “has cause to believe and does believe that on account of the personal bias, prejudice, or interest of the judge he cannot obtain a fair and impartial trial”, and the affidavit must state facts and reasons which, assuming their truth, give fair support for the belief, that is, demonstrate a well-grounded belief he will not have a fair trial. Transfer to another judge is the statute’s first command and we believe the legislature intended by the use of such imperative that transfer is to be automatic upon filing of an affidavit. With this in mind we further believe the hearing proviso contemplates the use of a second judge — the one to whom the case is transferred or assigned. In reaching this conclusion we note the obvious dissatisfaction arising from the somewhat incongruous federal practice of having the challenged judge sit in judgment on the legal sufficiency of the challenge against him. In 2B Barron and Holtzoff, Federal Practice and Procedure, 1970 Pocket Part, § 902, this comment appears:
“There are obvious difficulties in having the judge against whom an affidavit of prejudice is filed pass on the legal sufficiency of the affidavit. To avoid these difficulties, the Judicial Conference of the United States has approved a bill pending in Congress which would require a judge other than the one against whom the affidavit is filed to pass upon the sufficiency of the affidavit.” (p. 30.)
Under this construction the second judge, if he finds the affidavit to be legally sufficient, would proceed to hear and determine the case. If he finds the affidavit legally insufficient he would simply transfer the case back to the first judge for further proceedings, in which event, after final determination of the case the propriety of disqualification would become reviewable upon appeal under the provisions of K. S. A. 60-2103.
It should be borne in mind that a judge, with or without an affidavit being filed or request for change made, may always, on his own motion, recuse himself in a particular case.
Some further contentions presented require comment and disposition. It is argued the first affidavit filed by the attorneys is ineffective because not signed by the party. In the light of the plain language of the statute that “If either party to any action in a district court files an affidavit. . . .” (our emphasis), we agree and accordingly hold that the affidavit must be made by the party litigant rather than by his attorney. In this case, however, there was a later affidavit signed by the party which incorporated by reference that made by counsel, which later affidavit we believe substantially and sufficiently complies with the statute, and this despite any lack of use of the precise language contained in the statute. The difference between the wording of the statute and the party’s affidavit is not of sufficient materiality to warrant nullification of the latter. The right to fair trial should not depend upon such fine distinctions.
It is further contended by defendant and in the excellent brief supplied by amici curiae that the affidavit filed by plaintiff herein to obtain judicial disqualification was legally insufficient because the ground for it was bias and prejudice against counsel rather than the party litigant personally. This position is not without judicial support. In an annotation found in 23 ALR 3rd 1416 entitled “Disqualification of Judge For Bias Against Counsel For Litigant”, this summary appears:
“While personal prejudice on the part of a judge against a party to litigation is generally regarded as sufficient cause for a change of judge, a judge’s feeling of animosity toward counsel for a litigant has not always been recognized as a ground for recusation, many courts having taken the apparent view that such bias, not directed toward the litigant himself, cannot be presumed to affect the judge’s impartiality. However, the contrary view, that hostility toward an attorney may be of such degree as to be presumed to adversely affect the client’s interest, has found support in a number of cases.’’ (p. 1418.)
The view that bias or prejudice against counsel furnishes no ground for disqualification of a judge stems from ancient common law dogma that the judge having taken the oath of impartiality thereupon becomes incapable of the exercise of bias or prejudice against a litigant because of any feeling toward counsel in the case. The more modern view recognizes the possibility of human fallibility even in one seated upon the woolsack, which view seems more realistic and one more likely to sustain public confidence in the integrity of the judicial system. There is no implication in our statute that the facts and reasons for the belief that one cannot obtain a fair trial must be of any particular nature or character. The statute says nothing about whether the alleged bias or prejudice is against the party or against his attorney. That which the statute does make of concern is the belief of the party as to whether he can obtain a fair trial. It can scarcely be denied that prejudice against a party’s attorney can be as detrimental to the interest of that party as prejudice against the party himself. The clear intent and purpose of our statute is not only to give a party a fair and impartial trial but also to give assurance that the business of the courts will be conducted in such a manner as will avoid suspicion of unfairness (see Berger v. United States, supra). We conclude that bias or prejudice toward an attorney may be a ground for disqualification under the statute.
Considerable ado has been raised by reason of the addition of the word “personal” during the course of the enactment of the statute. The attempt is made to relate the word to the person of the party litigant so as to limit the disqualifying prejudice to that against him. We are unable to attribute any such significance by reason of the addition of the word. It appears in the statute as an adjective modifying the nouns bias, prejudice or interest, that is, the bias, prejudice or interest of the judge — no more — which we have taken into account.
It is also asserted the practice employed discloses blanket disqualification of a judge, which should be prohibited as disruptive of normal judicial administration. We are told affidavits were filed by the law firm in question and its clients in approximately eighty-three cases pending in the Twentieth Judicial District. That which has been termed blanket disqualification has been condemned in Clawans v. Waugh, 10 N. J. Super. 605, 77 A. 2d 519 and Ginsberg v. Holt, 86 So. 2d 650 (Fla., 1956). However, we think the situations presented in those cases are sufficiently different as to make the rulings announced there inapplicable. In each o£ those cases an attorney sought to enjoin a court from hearing any cases in the future in which the attorney might be involved. Additionally, in 1950 at the time of the New Jersey decision, which was one rendered by a special tribunal convened by the challenged district judge, that state’s statute recognized only the generally accepted common law grounds as a basis for recusation: Relationship to any of the parties; prior participation as counsel for any of the parties; expression of an opinion upon a matter in question in the action; and pecuniary interest in the result of the action. Bias and prejudice were not acknowledged as sufficient to disqualify a judge, the rationale expressed in Clawans being the following:
“Fundamentally the reason for the establishment of this doctrine is that a judge is conscience-bound under his oath of office to do impartial justice between. parties to litigation before him.” (p. 521.)
It is interesting to note that the New Jersey Supreme Court later adopted a rule of court which provides:
“The judge of any court shall disqualify himself on his own motion and shall not sit in any matter . . . (f) when there is any other reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so." (Our emphasis.) (Rules Governing The Courts of the State of New Jersey [West Publishing Co., 1971] 1:12-1, p. 31.)
In Ginsberg the Florida Supreme Court declined to grant the requested injunction to restrain forever the appellee judge from entertaining any case in which the appellant attorney may appear but did point out that Florida had a statute providing for disqualification of judges and “appellant may resort to it as often as he finds it necessary.” (p. 651.)
Here the affidavits have been separately filed in individual pending cases in which members of the Turner firm are presently employed and future blanket disqualification is nonexistent.
We have already disposed of several of the contentions asserted "by defendant as to why the affidavit filed by plaintiff should be •deemed legally insufficient, the principal one being that bias or prejudice against counsel for a litigant is not a basis for disqualification. There remains only the question whether the affidavit furnishes fair support or reasonable grounds, in its statement of facts and reasons, for the belief a fair trial cannot be obtained. In Palmer v. Johnson, 132 Kan. 161, 294 Pac. 874, this court held:
“When the ruling of a trial court turns on documentary evidence this court can examine the documents and determine their meaning and effect. . . .” (Syl. ¶1.)
The question of the sufficiency of the affidavit is purely one of law which we are free to determine. The affidavit is based in part upon the making of rulings adverse to the Turner law firm in cases in which they have previously appeared as well as rulings restrictive in nature, some of which have upon appeal been held by tins court insufficient to warrant reversal of the judgment appealed from. It goes almost without saying that this furnishes no ground for judicial disqualification. In Sheldon v. Board of Education, 134 Kan. 135, 4 P. 2d 430, this court held:
“Previous adverse rulings of a trial judge, although numerous and erroneous, where they are subject to review, are not ordinarily and alone sufficient to show such bias or prejudice as would disqualify him as judge.” (Syl. ¶ 3.)
Nor does the trial judge’s exercise of his duty to remain in control of trial maneuvering supply such ground, no more than judicial suggestions or admonition to counsel for improvement. In Horton v. Montgomery Ward, 199 Kan. 245, 428 P. 2d 774, we stated:
“A judge is not to be charged with prejudice because he desires and suggests what he thinks to be improved trial procedure.” (p. 248.)
However, the affidavit contains more than adverse and restrictive rulings and admonitions for improvement. Without further detailing the matter, we think it reveals sufficient in the nature of feeling engendered in prior proceedings and permitted to be carried over as to constitute fair support for the belief a fair trial could not be obtained under the particular circumstances. Again we emphasize it is the belief of the party which the statute makes of concern. Accordingly we hold that the affidavit filed by plaintiff in his own action was legally sufficient to require disqualification.
Defendant questions constitutionality of K. S. A. 20-311d on the ground its enactment violates the separation of powers’ doctrine, but he raises this issue only in the event we construe the statute to provide for mandatory disqualification, which we have not done. We note, however, that, except for a single dubious precedent where other reasons for unconstitutionality were present, appellate courts have universally upheld this kind of legislation against constitutional attack upon this ground. The types of statutes we have discussed differ materially from those providing a peremptory challenge to a judge without assigning any reason or ground, which have been held unconstitutional (see Johnson v. Superior Court, 50 C. 2d 693, 329 P. 2d 5). We see no constitutional impediment upon the ground suggested.
Judgment is entered for plaintiff as follows: Defendant is directed to transfer case No. 23,950 in the district court of Barton county wherein plaintiff is a litigant, to another judge, pursuant to K. S. A. 1971 Supp. 20-311d, for further proceedings on its merits. Defendant is directed to transfer other pending cases within the Twentieth Judicial District in which affidavits for disqualification have been filed, to another judge, pursuant to 20-311d, for hearing upon the legal sufficiency of the affidavits.
Judgment for plaintiff is so ordered.
APPROVED BY THE COURT.
O’Connor and Prager, JJ., not participating. | [
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal from a plea of guilty to the offense of escape without breaking in violation of K. S. A. 21-734. The appellant, Paul Williams, had previously been sentenced to the Kansas State Penitentiary at Lansing, Kansas, for the offense of murder for a term of fifteen (15) years by the Shawnee County District Court. On February 5, 1970, a complaint was filed charging appellant with the crime of escape without brealdng. On February 9, 1970, appellant appeared in court and counsel was appointed to represent him. . On February 20, 1970, appellant was bound over to stand trial in district court for the charge of escape, without breaking. Several preliminary motions were filed on behalf of the defendant which are not material here. On March 6, 1970, appellant was arraigned and entered his plea of guilty to the charge of escape without breaking as charged in the information.
Prior to the acceptance of the plea of guilty by the district court a colloquy was held between the court and appellant in which the appellant stated that he wished to waive the reading of the information and that he had a full understanding of the charge. In the colloquy the court explained to the appellant the statutory penalty for the offense which was a term not to exceed three (3) years to commence at the expiration of the sentence which appellant was then serving. Appellant stated that he was entering his plea of guilty freely and voluntarily and that he was doing so because he felt he was guilty. He further stated that he understood that he had a right to trial by jury and that he desired to waive that right. He further stated that he was satisfied with the services of his attorney. The court questioned appellant as to the factual situation upon which the plea of guilty was based.' Appellant stated that he had left the outside dormitory at the penitentiary, that he was gone approximately twenty-two (22) hours and that he was picked up by a highway patrolman. The court accepted appellant’s plea of guilty and thereupon entered, judgment finding that the appellant was guilty of escape without breaking as charged in the information. The court then imposed the statutory sentence of confinement at hard labor at the Kansas State Penitentiary for a term not to exceed three (3) years to commence, at the expiration of appellant’s term previously imposed for murder which he Was serving at the time of the escape.
The appellant raises three (3) points on this appeal:
■ (1) The information did not state an offense under the Criminal Code of the State of Kansas. In his brief appellant contends that he could not be guilty of the offense of escape without breaking since he was not confined behind bars at the time of the escape.
(2) It was improper for the court to accept the appellant’s plea of guilty as he was coerced by the State into entering such a plea because the county attorney stated to appellant’s attorney that if the appellant was tried and convicted the county attorney would request the imposition of the Habitual Criminal Act, K. S. A. 21-107a.
(3) It was error for the court to sentence the appellant to confinement and hard labor at the Kansas State Penitentiary for tihe term prescribed by statute for the reason that he had already been punished administratively by the State of Kansas by the taking away of his credit for good time accumulated by the appellant dining the period he had been serving on the murder charge prior to his escape.
Appellant’s first contention is that he had to be confined behind bars at the time of the escape in order to be guilty of the offense of escape without breaking. We find it without merit. In State v. Gordon, 203 Kan. 69, 453 P. 2d 80, it was held that an escape from the barracks outside the Kansas Reception and Diagnostic Center constituted an escape without breaking within the meaning of K. S. A. 21-734. Likewise an escape from an honor camp has been held to come within the provisions of the statute. (State v. Ball, 204 Kan. 415, 464 P. 2d 175; State v. Tarvin, 204 Kan. 413, 464 P. 2d 16. See also State v. Carreiro, 203 Kan. 875, 457 P. 2d 123.)
In his second point appellant contends he was coerced to enter a plea of guilty to the charge because the county attorney threatened imposition of the Habitual Criminal Act, K. S. A. 21-107a. It has been established in this state that notice of intention to request imposition of the Habitual Criminal Act by the county attorney prior to arraignment in and of itself is not coercion of such a nature as to render the plea involuntary. (State v. Byrd, 203 Kan. 45, 453 P. 2d 22, and cases cited therein.) The record in this case contains no evidence disclosing unusual circumstances to show that the plea was involuntary. On the contrary the record clearly establishes the voluntary nature of the plea from the colloquy between the court and appellant at the time the plea of guilty was entered. It follows that this contention must be rejected.
Appellant’s third point on this appeal is that administrative sanctions by way of loss of an inmate’s good time, followed by a charge and conviction of escape with the imposition of the statutory penalty constitutes double jeopardy in violation of the Fifth Amendment to the United States Constitution and Section Ten of the Bill of Rights of the Constitution of Kansas. The law does not support this contention. (State v. Kelly, 192 Kan. 641, 645, 391 P. 2d 123; Mullican v. United States, 252 F. 2d 398 [5th Cir. 1958], 70 A. L. R. 2d 1217; Patterson v. United States, 183 F. 2d 327, 328 [4th Cir. 1950], cert. den. 340 U. S. 893, 71 S. Ct. 200, 95 L. Ed. 647.) These cases hold that criminal prosecution for the crime of escape is not prohibited under the double jeopardy clause of the Fifth Amendment to the United States Constitution merely because the escapee was, upon his recapture subjected to discipline by prison authority for the prison discipline violation involved. Under this point appellant argues in his brief that under the facts of this case his sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. This court has no hesitancy in holding that the sentence imposed for escape for a term of three (3) years to commence at the expiration of appellant’s sentence on the murder charge is not cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. See State v. Ricks, 173 Kan. 660, 250 P. 2d 773, where the Habitual Criminal Act, G. S. 1949, 21-107a, was held applicable to the crime of escape and where the statutory penalty was doubled by the court. In the instant case only the statutory penalty was imposed. Because of the nature of the offense it is not cruel or unusual punishment for a consecutive sentence to be imposed where a prisoner has been adjudged guilty of the offense of escape from a penal institution to which previously he had been sentenced.
For the reasons set forth above it follows that the judgment of the district court must be and it is hereby affirmed.
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The opinion of the court was delivered by
Harman, C.:
This appeal arises from convictions by a jury of Vernon S. Pierce, Richard Alexander, Henry Davis, Noel D. Newsom, Fred M. Johnson, John H. Manning, Leonard Harrison and Samuel Jarvis Hunt of varying degrees of robbery.
By way of background we may state that as a result of certain events occurring at a Wichita motel on October 17, 1968, appellants and Harold Cole were charged with certain criminal offenses. All nine persons were initially charged with two counts of kidnapping, one count of conspiracy to kidnap, two counts of extortion and two counts of assault with intent to commit extortion, the alleged victims of these offenses being Frank Carpenter and Jaddy Blake. During the preliminary examination upon these charges, two additional ones were added — one count of robbery in the first degree and one count of extortion — the alleged victims of the added charges being Andrew P. Gutierrez and William P. Howard. At the conclusion of the preliminary hearing the examining magistrate dismissed the three kidnapping counts and held all defendants for trial in district court upon the remaining six counts. The state then filed an information in district court accordingly, charging the defendants jointly. In advance of trial the district court quashed the two counts of assault to commit extortion and upon the state’s appeal this ruling was upheld (State v. Pierce, et al., 205 Kan. 433, 469 P. 2d 308).
Trial by jury was eventually had upon the remaining four counts, resulting in complete acquittal of defendant Harold Cole and acquittal of the eight appellants upon all except the robbery charge. Alexander, Davis, Newsom, Johnson, Manning and Harrison were convicted of robbery in the first degree; Pierce and Hunt were convicted of the lesser included offense of robbery in the third degree. Statutory sentences were imposed and this appeal ensued.
Appellants’ specifications of error will be dealt with in the order in which they have been presented and briefed on appeal.
The first contention is the evidence was insufficient, to sustain the verdicts of guilty, which issue was appropriately raised at trial. The evidence relied upon by the state for conviction will be briefly related with further evidentiary matters to be mentioned later in connection with alleged trial errors.
Joint Action in Community Services (JACS) is a private nonprofit corporation organized by a group of leaders of religious social agencies to operate on a nationwide scale. It was formed in response to a call for aid by the Office of Economic Opportunity in administering the “poverty program”. JACS’s primary function was to assist disadvantaged boys, aged sixteen through twenty-one, who had dropped out of school and were unemployed, to obtain training, skill and eventual employment through enrollment in a subordinate OEO program known as the Job Corps.
The complaining witness as to the offenses upon which appellants were convicted, Andrew P. Gutierrez, was the director of JACS’s North Central Region. This area comprised the state of Kansas and nine other midwestern and western states, with regional headquarters at Kansas City, Missouri. William P. Howard was deputy regional director of JACS. Gutierrez had previously served as a Presbyterian minister for five years in Wichita. He and Howard began their task of Job Corps recruitment by contacting various public and private agencies in Kansas and elsewhere in the region. The Kansas quota for Job Corps recruits was 300. On October 4 and 5, 1968, Gutierrez and his staff conducted a general orientation meeting at a hotel in Kansas City, Missouri, the purpose of which was to explain goals and function of JACS and to enlist as volunteers a broad spectrum o£ persons in the region. All the appellants except Johnson were invited to attend this meeting where it was stated recruitment of youth into the Job Corps was to be done on a voluntary basis, that is, recruiters working for JACS below management level were to be nonsalaried but would be compensated for expenses on a scale of five to sixteen dollars per day. At the conclusion of this conference Leonard Harrison and one Frank Reaves from Wichita met further with Gutierrez respecting the recruitment program, Harrison indicating he thought his group of associates could help. Harrison suggested that Gutierrez contact appellant Johnson who, evidently through inadvertence, had not been invited to attend the conference. Harrison stated the JACS plan to use volunteers to recruit and screen boys for Job Corps would not be successful and any recruitment would have to be channeled through him and his associates; that storefront centers located in Kansas City, Wichita, Topeka and Lawrence managed and staffed by his group would be needed to meet the recruitment quota for Kansas.
On Monday, October 7, 1968, Gutierrez met with Johnson at JACS’s office in Kansas City, Missouri. Johnson gave Gutierrez a written list of the names of persons with whom he was associated to be invited to a subsequent meeting, the purpose of which was to consider implementation of the plans discussed at the orentation meeting. Gutierrez suggested Kansas City as the logical site for this meeting inasmuch as many of the persons listed by Johnson resided in that area. Johnson replied Kansas City was not acceptable and the meeting would have to be held at Wichita. Gutierrez assented and agreed to pay for air transportation for the group and to reserve a conference room at the Holiday Inn Midtown at Wichita, the meeting to be held Thursday, October 17, 1968. Deputy director Howard procured the necessary airline reservations for the party, including himself and Gutierrez, with departure from the Kansas City airport scheduled for 7:00 a. m. on October 17 and return to Kansas City at 4:00 p. m. the same day. The next day after these arrangements had been made, Johnson inquired about meals for the conference participants, which Gutierrez agreed to provide. Johnson also stated his group would require overnight accommodations in Wichita as they had other matters to attend to there. Gutierrez agreed to provide this item. No other agreement or understanding concerning the conference was made and nothing was said about payment of wages or consultation fees.
On the morning of October 17, 1968, Gutierrez and Howard arrived first at the Kansas City airport, then Johnson, Pierce, Alexander, Davis and Newsom arrived. Some of the latter group, including Davis, Newsom and Johnson were wearing an unusual type of garb. They were clothed in a military type dress — olive green army fatigue trousers with combat boots, web belts and headpieces resembling an Australian bush hat. Pierce wore a business suit. As host for the conferring group Gutierrez extended his hand in greeting. Appellants who were present did not acknowledge the greeting but put their hands behind their backs and walked away. Harrison and Hunt arrived just before the plane left. Some of appellants were wearing African type dashiki blouses. After boarding the plane Johnson and his group sat apart from Gutierrez and Howard. Upon arriving in Wichita Gutierrez rented two. cars in which to drive himself, Howard and the seven appellants arriving on the plane, to the Holiday Inn Midtown. These appellants remained cold and aloof to Gutierrez during the trip to the motel. Upon arrival each appellant was registered in a separate room. Johnson indicated he and his group desired first to have a conference of their own. About 10:00 a. m. Gutierrez and Howard entered the conference room and shortly thereafter the nine persons who were named as defendants arrived. These included appellant Manning and also Harold Cole, both of whom lived in the Wichita area. All of this group, except Newsom, were employed in some supervisory capacity in what is commonly known as the war on poverty. Newsom was employed by a Kansas City power company in its apprenticeship program. Pierce was director of a multi-service neighborhood center; Alexander and Davis were cooperators in a minority business enterprise; Johnson, among other activities, was an associate director in charge of OEO neighborhood services; Manning was a neighborhood center coordinator; Harrison was director of the Ballard Center, a children’s community center at Lawrence; and Hunt directed a neighborhood house of a group called Organization of Citizen Representation in Topeka. The latter two are private organizations.
Prior to the start of the meeting several appellants conducted a thorough search of the conference room, including minute inspection of the furniture and wall tapestries, as well as an adjoining kitchen ettc area, ostensibly for bugging devices. Four appellants who were dressed in the military type uniform then posted themselves as guards at the closed doors, standing in a military “parade rest” position. A girl named Glenda Rice was present at the meeting for a few minutes but was asked by appellants to leave the room and did so. Appellants who were present had been referred to Gutierrez by one of his aides as the Black Guard.
Gutierrez then outlined the purpose of JACS and his proposal for utilizing volunteers in recruiting boys for the Job Corps. Appellants told Gutierrez and Howard their proposal was completely unacceptable. Appellants insisted upon a program involving storefront locations in Kansas City, Wichita, Topeka and Lawrence, to be staffed and managed by Johnson and his group. Appellants demanded $6,000 to $6,500 per month to finance their recruiting operations, saying if JACS did not cooperate it would not recruit any boys in Kansas, that JACS had to work with appellants in any recruiting or “forget it”. Gutierrez explained that JACS could only pay expenses up to $16.00 per day for each boy recruited and could not pay more than $450.00 for a store-front operation. At one point in the discussion one appellant stated that if they were going to get anywhere, they had to have a drink. Gutierrez and Howard then mentioned buying a bottle or two of liquor but appellants made it dear each wanted a bottle; appellants passed around among themselves a sheet of paper upon which each listed the brand name of the bottle of liquor he wanted; appellants were then showing hostility and Gutierrez sent Howard to a liquor store where he purchased the bottles and returned with them for distribution. When Gutierrez stated he could not agree to appellants’ demands as to pay, one appellant stated they were not dealing with the right man, that they must deal with the “plantation owner”, meaning B. J. Roberts, JACS’s national director, to whom reference had been made. During this time the uniformed appellants were guarding the doors and from time to time appellants Newsom and Davis pounded their fists into the palms of their other hands and also removed their web belts and slapped them across the palms of their hands. Johnson, Harrison and Hunt were the principal spokesmen for the group.
At noon the conference adjourned during which time Gutierrez called Mr. Roberts in Washington, D. C. to report appellants’ proposal which Roberts rejected. Gutierrez was highly emotional and nervous during the telephone conversation. Later in the afternoon the conference between Gutierrez and Howard and appellants resumed, Gutierrez reporting that after conferring with Roberts he was unable to accept appellants’ proposal. Gutierrez explained Roberts would be in Des Moines, Iowa, the next day for a conference where appellants could see him if they desired. He stated he would call Roberts upon his return to Kansas City and would notify appellants if Roberts would meet them in Des Moines.
Around 3:00 p. m., the afternoon session having proven fruitless after further discussion, Gutierrez and Howard concluded the conference and prepared to leave. As they got up appellant Alexander approached Gutierrez and Howard with his fist clenched and in a very menacing manner stated he had taken the day off from work and he demanded pay for his wages “now or else”; Gutierrez replied there had been no agreement for paying anything like that; Alexander said, “I’ll beat hell out of you if I don’t get my day’s wages” and also stated to Gutierrez and Howard he could “take” both singlehandedly and beat them up. He also stated “I get very angry when I don’t get what I want”. At this point Gutierrez felt fearful for his life. Johnson led Alexander out of the room and upon returning stated to Gutierrez and Howard, “Now, you see we mean business”. Johnson and Harrison demanded consultation fees. Again a sheet of paper was passed around by appellants and each listed thereon the amount of wages or consultation fee he wanted, and the statement was made, “We want our money now”. Gutierrez and Howard explained they could not pay consultation fees or wages; Gutierrez testified one appellant said in a threatening manner that “he would demand these wages and consultation fees before we left the room”. In a “high angry” manner one said he was going to get his money one way or another. Periodically some of appellants stood close to Gutierrez and Howard and rhythmically pounded their fists into their open palms and slapped their palms with their web belts, so there was a “constant clap”. The door was guarded and some appellants stood behind Gutierrez and Howard. Although none of appellants touched either Gutierrez or Howard, Gutierrez was very frightened and he directed Howard to write checks to appellants for the amounts listed. Howard wrote out the checks for the amounts demanded, Gutierrez then scribbled his signature on them and both were permitted to leave. The checks were made out separately to each of the appellants and also to Harold Cole, Glenda Rice and Frank Reaves, although the latter three were not present during the afternoon session. Glenda Rice had been in the room only a few minutes. These checks totaled $1,062.70 and were written on Gutierrez’s individual bank account. They constitute the property which was the subject of the robbery charge of which appellants stand convicted.
Upon his return to Kansas City Gutierrez informed Mr. Roberts, JACS’s national director, by telephone of appellant’s demands; Roberts rejected their request for a meeting at Des Moines; Gutierrez and his aides attempted then to inform Johnson and his group by telephone not to come to Des Moines, but because of noise in the motel rooms were unable to get their message through.
On the next morning, Friday, October 18, 1968, Harrison, Hunt, Manning and Glenda Rice came into Gutierrez’s office at Kansas City, Missouri. When Gutierrez told the group there was to be no Des Moines meeting and that he had attempted to so inform them the night before, each again demanded wages or consultation fees for that day. The Rice girl was again asked to leave, and after further threats of violence, Gutierrez, being fearful, instructed Howard to write checks as demanded. Harrison, Manning and Hunt then left to cash their checks but soon returned saying the bank would not honor the checks. Meanwhile Johnson had arrived and all demanded wages and consultation fees. Gutierrez then arranged with Howard to borrow $720.00 from the latter’s bank account with which to deposit and make good the checks which were again written as demanded. Several of the checks were cashed. On October 21, 1968, Gutierrez called the F. B. I. and on October 22, 1968, he stopped payment on the remaining uncashed checks.
Manning, Johnson and Cole testified on behalf of appellants, generally denying the testimony of Gutierrez and Howard as to hostility and threats of violence. Johnson testified Gutierrez agreed to pay consultation fees. Other witnesses testified in support of appellants and their previous good records and reputations. The evidence further showed appellants also negotiated separately and privately on October 17, 1968, at the Wichita motel with a Utah group whose mission was to render the same type of service to the Job Corps program as JACS. The Utah group was not related to JACS in any way. It offered $40.00 for each boy recruited.
Appellants acknowledge the rule this court does not weigh con flicting evidence or determine credibility of witnesses but is limited to determining whether there is substantial competent evidence to support the jury’s finding of guilt. They rely for their contention of insufficiency of evidence solely on a rule of law applied in State v. Goldsberry, 160 Kan. 138, 160 P. 2d 690. There two individuals were pasturing cattle upon property separated by a fence. After a dispute between the two as to ownership of certain cattle one attempted by force to take those claimed by him. This court stated:
“An intent to steal property and a bona -fide claim of the right to take it are incompatible. One who takes property in good faith under fair color of claim of tide, believing that he is its owner and has the right to its possession or that he has a right to take it, is not guilty of larceny even though he is mistaken in such belief.
“The fact that the taker employs force to obtain possession of what he believes is his own property under color of right to possession thereof is not in and of itself sufficient to prove the felonious intent incident to larceny.” (Syl. ff 3 and 4.)
Appellants contend that by reason of the foregoing there was no showing of felonious intent. The thrust of their argument is that a bona fide claim of title and felonious intent are incompatible and therefore the evidence was insufficient to rebut the defense that appellants took the checks under a bona fide claim of title. Closely allied with this contention appellants complain of the trial court’s refusal to give an instruction to the jury embodying the rules quoted from Goldsberry. We cannot agree with appellants’ contentions.
One compelling factual distinction exists between Goldsberry and the case at bar. The former involved a claim to certain and specific property, namely, several head of cattle. Here no claim of title to any specific property was invoked by appellants. Rather the purported claim was to an inchoate undetermined amount of money allegedly owed, to satisfy which appellants took property to which they could trace no claim of title. Although there is authority to the contrary (see anno. 46 A. L. R. 2d 1227), we believe the better rule, grounded on both law and public policy, is that the violent taking of property from the person of another by force or intimidation for the purpose of applying it to payment of an alleged debt constitutes the offense of robbery where the taker has no bona fide claim of title or right to the possession of the particular property. After elaborate review of conflicting precedents, some of the reasons for this rule were cogently stated in Moyers v. State, 186 Ga. 446, 197 S. E, 846, 116 A. L. R. 981, as follows:
“[The majority rule] also overlooks the fact that the creditor has no title or right of possession of the money or property of the debtor. The better authority seems to be that the taking of money or property from the person of another by force or intimidation, without the consent of the owner, to apply to the payment of a debt due to the taker, would constitute the offense of robbery, [pp. 450-451.]
“The law prescribes the rule of conduct, commands obedience, frowns upon disobedience. Vengeance is mine sayeth the law. While it justifies self-defense, and self-defense means prevention, it does not favor the taking of the law in one’s own hand. It does not permit one to resort to violence, save in defense of person, habitation, or property. It would not be wise to permit the citizen to use violence to redress his wrongs. What right has any one to take the law in his own hands, and in order to enforce his demands to commit serious acts of violence and disturbance of the peace against another or his property or habitation, and then, when apprehended, to appeal to the law to acquit him of his wrong? Is it not the saner rule of law to let every one high or low, rich or poor, weak or strong, be alike amenable to the law? [pp. 453-454.]
“The law favors the creditor in the collection of his debts, but by no stretch of law can it give him, without trial, tide or the right to possession of the property of the debtor. Debt is a hard master and often gets its subjects in serious and difficult situations; yet it does not alone transfer to the creditor the title or right of possession of the property of the debtor. The debtor is entitled, under the law, to hold his property against the creditor until it is subjected to his debt by due process of law.” (p. 455.)
In Edwards v. State, 49 Wis. 2d 105, 181 N. W. 2d 383, the court refined the issue thus:
“Neither can we accept the view of the majority cases which see no distinction between the reclaiming of one’s own property by force and the taking of money by force from a debtor to repay a debt which is presently owing. We think the intent to steal is present when one at gunpoint or by force secures specific money which does not belong to him in order to apply it by such self-help to a debt owed to him. . . . Unless the accused can trace his ownership to specific coins and bills in the possession of the debtor, the debtor is the owner of the money in his pocket and it is theft to take it from his possession with intention to permanently deprive him of its possession regardless of what other motive or intention the accused has.
“The distinction between specific personal property and money in general is important. A debtor can owe another $150 but the $150 in the debtor’s pocket is not the specific property of the creditor. One has the intention to steal when he takes money from another’s possession against the possessor’s consent even though he also intends to apply the stolen money to a debt. The efficacy of self-help by force to enforce a bona fide claim for money does not negate the intent to commit robbery. Can one break into a bank and take money so long as he does not take more than the balance in his savings or checking account? Under the majority rule the accused must make change to be sure he collects no more than the amount he believes is due him on the debt. A debt is a relationship and in respect to money seldom finds itself embedded in specific coins and currency of the realm. Consequently, taking money from a debtor by force to pay a debt is robbery. The creditor has no such right of appropriation and allocation.” (pp. 113-114.)
Robbery in the first degree (K. S. A. 21-527, since repealed) is the felonious taking of the property of another from his person or in his presence, and against his will, by violence to his person or by putting him in fear of some immediate injury to his person, while robbery in the third degree (K. S. A. 21-529, since repealed) includes an element of extortion through verbal communication (State v. Jones, 187 Kan. 496, 357 P. 2d 760). Here the evidence for the prosecution showed no agreement, either express or implied, to pay appellants wages or consultation fees or anything beyond transportation, lodging and meals. A calculated atmosphere of hostility and fear was created by appellants acting in concert. Menaces and threats of violence with definite show of force were used when Gutierrez and Howard attempted to leave. Gutierrez testified that at the time the checks were executed and delivered at the Wichita motel he was frightened and fearful of physical harm to himself and his assistant. This testimony was amply supported by that of Howard. Hence we hold the trial court erred neither in submitting the cause for jury determination nor in refusing to give the requested instruction.
Appellants make complaint of the trial court’s refusal to give two further instructions to the jury respecting felonious intent. Our examination of the entire instructions given reveals they fairly and adequately defined for the jury the offenses of which appellants were convicted, including the requisite element of felonious intent.
Appellants contend the trial court erroneously and prejudicially admitted evidence concerning membership of certain appellants in an organization known as the Black Guard. Upon direct examination as a part of the case in chief for the state a Wichita police officer testified that on October 24, 1968, defendant Harold Cole had stated in an interview that the men in uniform at the time of the incident on October 17 were members of the Black Guard. Appellants now advance no objection to this evidence on the ground of irrelevancy and indeed we think it was relevant on the prosecu tion’s theory the action taken by appellants on October 17 was in the nature of concerted or group action. If relevant, the evidence was admissible unless otherwise barred by statute (K. S. A. 60-407).
Appellants argue the evidence should have been excluded because the statement was made after any alleged conspiracy had ceased and it should have been excluded because it tended to show the commission of other offenses in violation of K. S. A. 60-455, the other offenses being joining a revolutionary society (K. S. A. 21-203) and criminal syndicalism (K. S. A. 21-301). First of all, our examination of the record discloses no objection on these grounds made at trial, and for lack of contemporaneous objection this omission might well end the matter (K. S. A. 60-404). There was objection to the testimony respecting Cole’s statement on the lack of proper Miranda warning but no complaint is now made on that score. Beyond this, however, once relevancy is conceded it matters not that the challenged evidence may show commission of another crime. In State v. Crowe, 207 Kan. 473, 486 P. 2d 503, this court said;
“Evidence otherwise relevant in a criminal prosecution is not rendered inadmissible because it may show another or greater crime than that charged.” (SyL-fl.)
A similar complaint is lodged against certain testimony of a Mr. Barton that while serving in Vietnam he had observed uniforms similar to those worn by appellants upon the occasion in question but here again the record reveals no contemporaneous objection to the evidence now challenged.
Appellants also complain of instruction No. 16 given by the trial court which in effect told the jury that appellants were not charged with any offense arising out of the execution of checks on October 18, 1968, in Kansas City, Missouri, and such evidence was admitted and should be considered solely on the issue of appellant’s credibility. The record clearly reveals appellants specifically requested this instruction. Their counsel now advise this request was withdrawn. Resort to the transcript leaves the matter doubtful at best as to just what did occur with respect to the request. In any event we think the evidence was relevant on the issue of guilt (appellants do not now contend otherwise although they did object to reception of the evidence at trial) and any error in the limiting instruction inured against the state rather than appellants.
Appellants complain as to certain questions propounded to a defense character witness upon the state’s cross-examination. The questions encompassed purported misconduct on the part of appellant Johnson to whose good reputation the witness had attested upon direct examination. Appellants argue the alleged instances of misconduct were never shown to be true and in fact were false. Here again the record is unclear as to the making of contemporaneous objection to the questions asked, but we think no error occurred. The questions to the witness respecting instances of misconduct were prefaced in proper form, that is “Had you heard”, etc. (see State v. Hinton, 206 Kan. 500, 479 P. 2d 910). More importantly, the record affirmatively reveals the prosecuting attorney was acting in good faith in propounding the questions asked, as shown by his subsequent rebuttal use of two Kansas City, Kansas, police officers in an attempt, albeit unsuccessful, to establish the truth of the purported facts, and by the inclusion in the record of a memo addressed to the county attorney from a high ranking police officer indicating the truth of the assumed matters. The examination complained of was within permissible limits (State v. Hinton, supra) while the subsequent rebuttal testimony actually bolstered the good reputation put in issue.
Appellants urge error in the admission of certain rebuttal evidence as to the payment of consultant fees to appellant Johnson and to a statement made by one appellant in December, 1968, immediately following the preliminary hearing. The payment of such fees as a matter of custom became an issue as to Johnson following his testimony, because of the nature of his job, and was a proper subject for impeachment upon rebuttal rather than a collateral issue. A more serious question is the admission in rebuttal of a woman’s testimony concerning statements in her presence by one of several appellants present in an elevator in the courthouse immediately after the preliminary examination, as follows:
“. . . and one of the defendants said, ‘What about that little Mex? I was just beginning to like that little Mex.’ And one of the defandants turned and said, ‘What that little Mex needs was to have his throat slit.’ ”
The witness was unable to identify which appellants made these statements other than to say neither Mr. Hunt nor Mr. Harrison was on the elevator. At trial it was shown the complaining witness, Mr. Gutierrez, was of Mexican-American extraction. The making of this statement scarcely constitutes a fact showing a consciousness of guilt so as to render it admissible and we are of opinion it was erroneous to have permitted it into evidence. However, the statement on its face amounts to no more than sheer after-the-fact hyperbole, which any juror would recognize and treat accordingly. The testimony should not have been allowed but we do not believe its reception could have had prejudicial effect upon appellants’ substantial rights.
Upon rebuttal the prosecution, over objection, introduced the testimony of two Philadelphia police officers concerning the existence and structure of an organization known as the Black Guard, described as a secret component of an organization known as Revolutionary Action Movement (RAM), to all of which appellants renew their objection as not proper rebuttal and prejudicial. The officers described the presence of the Black Guard at a Black Power convention in Philadelphia in September, 1968, whose members wore uniforms similar to those worn by some of the appellants on October 17, 1968, in Wichita. It had previously been shown that five of the appellants attended that convention. Testimony concerning the Black Guard developed in this manner: The first reference came upon appellants’ cross-examination of Gutierrez when the latter testified without objection that Johnson and the group named by him had been referred to by one of his aides as the Black Guard. The next reference was in the testimony of the Wichita police officer concerning defendant Cole’s pretrial statement that the uniformed persons were members of the Black Guard, which testimony, as already mentioned, came into the case without objection. Also unobjected to was testimony by two girls that at Wichita on the night of October 17 Frank Carpenter, an alleged victim of the charge of extortion upon which appellants were subsequently acquitted, was in a beaten and dazed condition, vomiting, clutching his stomach and complaining of pain, and Carpenter stated that at the Holiday Inn he had been beaten and lacked repeatedly in the stomach by the Black Guard, mentioning several appellants by name. Appellants Johnson and Manning testified upon their direct examination they were knowledgeable as to black movements and there was no such thing as a Black Guard; that it was an organization invented by the Wichita police and county attorney, being a product of their imagination. In this posture we think the testimony was not improperly received in rebuttal. As already indicated, evidence concerning the Black Guard and appellants’ connection therewith had probative value as tending to show appellants acted jointly on October 17 as a concerted group with a common purpose. Being relevant, the evidence cannot be deemed prejudicial, and it did rebut appellants’ testimony that the Black Guard was only a figment of the prosecuting officers’ imagination. The exact order of proof has always been held to lie in the sound discretion of the trial court and absent abuse of that discretion there is no ground for reversal.
Appellants at trial made timely motion prior to submission of the case to the jury to require the prosecution to elect between the counts of robbery and extortion. This request was denied, which ruling is assigned as error. The trial court did specifically instruct the jury it could not find appellants guilty of both robbery and extortion and the jury’s verdict was consistent with the direction. The rule appears to be that where a motion to elect is denied, the rights of the accused are protected by an instruction to the jury that a conviction may be had only on one count and not both (5 Wharton’s Criminal Law and Procedure, [Anderson ed.] §1940). Our decisions are in accord with this rule (State v. Taylor, 90 Kan. 438, 133 Pac. 861; State v. McManaman, 175 Kan. 33, 258 P. 2d 997) and we find nothing prejudicial in the procedure employed.
Appellants assert error in the trial court’s failure to quash the robbery count because the checks in question were not property within the definition of a particular statute, K. S. A. 62-1503, which provided:
“Where the indictment or information charges an offense against the property of another by robbery, theft, fraud, embezzlement, or the like, the jury upon conviction shall ascertain and declare in their verdict the value of the property taken, embezzled or received, and the amount restored, if any, and the value thereof; but their failure to do so shall in no wise affect the validity of their verdict.” (Our emphasis.)
Appellants’ sole argument is this: Some of the checks written at Wichita were surrendered to Gutierrez at Kansas City, Missouri, the next day, in return for which Gutierrez wrote new checks incorporating the amount of the Wichita checks; hence the Kansas City checks constituted a restoring within the meaning of 62-1503, and because this restoration occurred in Missouri there is no jurisdiction in Kansas for the offense. We think this interpretation is so patently fallacious that further analysis of 62-1503 is unwarranted. Checks are a form of tangible personalty capable of possession within the meaning of our crimes act and hence are subject to the offense of robbery. K. S. A. 21-129 provided:
“The term personal property’ as used in this act shall be construed to mean goods, chattels, effects, evidences of right in action, and all written instruments by which any pecuniary obligation, or any right or title to property, real or personal, shall be created, acknowledged, assigned, transferred, increased, defeated, discharged, or dismissed.”
By definition a check is a negotiable instrument and therefore creates a pecuniary obligation upon the maker and renders to the payee an unconditional promise to pay a sum certain in money which is a benefit to the payee (K. S. A. 84-3-104). Although the common law rule was otherwise on the theory the coercive execution of a written instrument rendered it void ab initio and therefore a thing of no value, the modem rule appears to be that under statutes such as ours checks may be the subject of felonious acquisition (see 2 Wharton’s Criminal Law and Procedure [Anderson ed.], § 491, pp. 158-159, and cases therein cited).
We have examined other complaints in derogation of the conviction, including an alleged illegal search and seizure of certain articles of clothing and uniforms and final arguments of the prosecution wherein allegedly racism was injected, but find nothing to warrant disturbing the judgment and it is affirmed.
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The opinion of the court was delivered by
Nuss, J.:
Gregory C. Fisher was convicted of unlawful manufacture of methamphetamine, possession of ephedrine with the intent to manufacture methamphetamine, possession of anhydrous ammonia in an unapproved container for the production of methamphetamine, possession of methamphetamine, and possession of paraphernalia for use in the manufacture of methamphetamine. In State v. Fisher, No. 89,300, unpublished opinion filed February 11, 2005, a split Court of Appeals affirmed Fisher’s convictions but remanded for resentencing in accordance with State v. Campbell, 279 Kan. 1, 106 P.3d 1129 (2005), and State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004). This court granted Fisher’s petition for review; our jurisdiction is under K.S.A. 60-2101(b).
The issues on appeal, and this court’s accompanying holdings, are as follows:
1. Did the district court err in failing to suppress evidence obtained pursuant to a search warrant partially based upon the contents of a trash bag seized from Fishers property? No.
2. Did the district court’s admission of hearsay evidence violate Fisher’s right to confrontation under the Sixth Amendment to the United States Constitution? No.
3. Are Fisher’s convictions for possession of ephedrine and possession of paraphernalia multiplicitous with his conviction for manufacture of methamphetamine? No.
FACTS
On August 20, 2001, Detective Shane Jager of the Pottawatomie County Sheriffs Department received information from fellow deputy Paul Hoyt concerning suspicious activity at 12420 Highway 63, Emmett, in Pottawatomie County. The property is located in a rural area approximately 4 miles north of the town of Emmett, on the west side of Highway 63. There are no other houses in the general vicinity on the west side of the highway. On the east side of the highway, the closest neighbor’s house is approximately a quarter of a mile away.
The property is bounded on the east by Highway 63 and by barbed wire fencing on the north, south, and west which separates the property from surrounding pasture. Photographs reveal the house is approximately 25 yards west of the highway and sits on the northeast part of the property. Its front porch and door face south. A large shed (bam) is located 50 to 60 yards straight west of the house’s western exterior near the barbed wire fence. A second, smaller shed sits equidistant between the house and the barn, but somewhat north, actually forming part of the north fence.
From Highway 63, a driveway runs from east to west on die south of the house, curving to the north and ending in a turnaround near the center of the area bounded by the three buildings. The only apparent walkway or sidewalk leads directly south from the house’s front door to the driveway. According to photographs in the record, several large trees surround tire house inside of the driveway.
According to Jager’s suppression hearing testimony, Deputy Hoyt told him that a concerned citizen noticed a strong or peculiar odor emanating from trash being burned on the property and also observed numerous cars stopping there for short intervals of time. Hoyt further relayed to Jager that on August 28, 2001, he received information from another concerned citizen that a white female driving a van — -that had been seen coming and going from the residence — drove to a shed located on the property, emptied boxes, placed more boxes in the van, and then left.
At approximately 1 a.m. on the day after Hoyt relayed the information about the delivery of boxes, Jager, Sergeant Chris Schmidt, and Deputy Shane Van Meter went to the area to determine if they could observe anything. While standing in a grass field to the west of the property, and approximately 30 yards west of the barn, Jager noticed a strong odor of ether. Based on his special training, coupled with the prior information of cars stopping at the residence, Jager suspected that methamphetamine was being manufactured and sold there.
Later that morning, Jager returned to the area twice more, once with the county attorney. From his parked position near Highway 63 about 50 yards south of Fisher’s driveway, and once again off of Fisher’s property, Detective Jager saw a burn barrel and a white translucent plastic trash bag near the bam. He then used binoculars to observe that the bag contained yellow containers. Based upon his training and experience, he associated the yellow bottles with the manufacture of methamphetamine, i.e., Heet bottles. Jager then walked to the field north of the property, where he again smelled ether. Jager testified that at that point he “[a]sked [the county attorney] how he felt about the trash bag. He said ... it was not on curtilage, that I could obtain the trash bag, and I advised him that I would like to try ... to talk to the residents, see what we could obtain from them, and that’s when I went to the door of the residence.”
Jager testified that after this discussion with the county attorney he got back in his vehicle and
“I pulled my patrol vehicle in the driveway, went to the front door, knocked on the door several times. [After no answer,] I got back in my vehicle and there’s a circle driveway that goes around the back side of the residence there, got in, drove by. When I was driving by the white trash bag I noticed Actifed blister packs, several Fleet bottles, and — and that’s when I collected that white trash bag.
“. . . I was circling around to leave the property. I had taken this, if you want to say southwest part of the circle drive and started back around . . . and I could see that there were Heet bottles, Actifed blister packs, and pseudoephedrine.”
Jager brought the bag to the sheriffs department for examination. In addition to the Heet bottles and 8 to 10 packs of ephedrine, the bag contained plastic gloves, coffee filters with a pinkish powder residue, and miscellaneous trash, including documents identifying Greg Fisher and Betty Harper.
Based upon the tips and Jager s information observed and obtained at the scene, including the contents of the bag, he applied for a search warrant which was obtained from Magistrate Judge Blaine A. Carter and executed for the house, outbuildings, and vehicles. Inside the doorway of the house, Jager found another white trash bag containing empty blister packs of pseudoephedrine, battery casings, lithium casings, three bottles of Heet, coffee filters, and other miscellaneous trash. He also found a white, cylinder-style grinder containing a pinkish substance on top of the microwave. In addition, he located pipes used to smoke methamphetamine and marijuana, glass jars containing residue, items used to manufacture methamphetamine, methamphetamine, and a cellophane bag containing ephedrine.
Inside the bam west of the house, law enforcement officers found a freezer containing a cooler of anhydrous ammonia. They also found a gas generator, rock salt, acid, coffee filters, a blender, Heet bottles, isopropyl alcohol, vinyl gloves, mason jars, a hypodermic needle, several pieces of hose, Epsom salt, Zip-Lock baggies, empty blister packs of pseudoephedrine, and battery parts to at least 59 “ ‘Energizer L91 AA’ ” lithium batteries.
Approximately 1 hour after the search warrant was initially executed, Betty Harper arrived at the property. Defendant Fisher and David Holden arrived a few hours later. Fisher’s left front pocket contained two baggies and a glass vial containing a powdery substance. All three items tested positive for methamphetamine.
Fisher was charged with unlawful manufacture of a controlled substance, possession of ephedrine with the intent to manufacture a controlled substance, unlawful possession of anhydrous ammonia, possession of methamphetamine, and possession of drug paraphernalia.
Prior to trial, Fisher moved to suppress all evidence seized from the property. After a hearing, the district court denied Fishers motion.
Detective Jager, Detective Paul Schliffke, KBI Agent William Smith, Jeff Rosell, James Schiefereclce, Jr., Betty Harper, and Mendy Roma all testified at the jury trial on behalf of the State. Fisher testified on his own behalf.
Detective Jager testified generally consistent with his suppression hearing testimony.
Among other things, Agent Smith testified about David Holden’s statements. According to Smith, Holden told him that Holden stayed at the Fisher residence; that Fisher had three “eight balls” or 8 ounces of methamphetamine with a street value of approximately $750; that Holden and Fisher had used several grams of methamphetamine on August 29, 2001; that Fisher had given Holden a gram of methamphetamine; and that Holden believed he saw Fisher previously cooking methamphetamine. Holden was not present to testify. Nevertheless, the court also admitted Holden’s written statement dated August 30, 2001.
Betty Harper testified that she lived at the residence with Fisher, her fiancé. Approximately 1 month before Fisher’s arrest, Harper wrote a letter to Fisher asking him to stop the “hobby in the bam.” Harper stated that she used methamphetamine she received from Fisher; however, she opined that to her knowledge, Fisher did not “cook” the methamphetamine.
Mendy Roma testified that she dated Fisher prior to his arrest. The day before Fisher’s arrest, she went to the residence and observed him manufacturing methamphetamine in the back of his truck. She also testified that she witnessed Fisher manufacturing methamphetamine in the bam on several occasions.
For the defense, Fisher testified that Roma’s friends, not he, used his barn to manufacture methamphetamine.
The juiy convicted Fisher on all counts. A majority of the Court of Appeals affirmed Fisher s convictions, but remanded for re-sentencing in accordance with Campbell, 279 Kan. 1, and McAdam, 277 Kan. 136. Among other things, the majority held that the trial court did not err in refusing to suppress the evidence because the trash bag — upon which the search warrant was partially based — was observed in an open field 50 yards from the house and seized while in plain view.
Judge, now Justice, Lee A. Johnson dissented, stating that the encroachment into Fisher s backyard was unlawful and that a neutral magistrate should have made the probable cause determination prior to the trash bag’s retrieval. He also expressed concern with the majority’s expansive definition of an “open field.” Fisher, slip op. at 22-23. (Johnson, J., dissenting.)
ANALYSIS
Issue 1: The district court did not err in failing to suppress evidence obtained pursuant to a search warrant partially based upon the contents of the trash bag seized from Fishers property.
Fisher has consistently maintained that the State unlawfully seized the white trash bag from his property because it was within his curtilage. Because the warrant was issued based in part upon facts gleaned from this alleged unconstitutional seizure, he claims the evidence seized pursuant to the improper warrant was fruit of the poisonous tree and should have been suppressed. Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963). At oral arguments, the State responded that the bag was outside the curtilage and, if not, it was seized while in Jager’s plain view.
When reviewing a motion to suppress evidence, this court reviews the factual underpinnings of a district court’s decision by a substantial competent evidence standard and the ultimate legal conclusion drawn from those facts by a de novo standard. This court will not reweigh the evidence. The ultimate determination of the suppression of evidence is a legal question requiring independent review. State v. Horn, 278 Kan. 24, 30, 91 P.3d 517 (2004).
In rejecting Fisher s challenge, the district court examined the totality of the circumstances to justify the issuance of the magistrate’s search warrant. During this examination, the court found that the bag was seized from outside the curtilage. It did not address the State’s alternative claim that the plain view exception to warrantless searches applied. The district court stated:
“All right. The test that the Court must use when issuing a search warrant is the totality of the circumstances. You don’t isolate individual things. You tal® all those observations, all that knowledge that law enforcement acquires and together you observe or determine whether there’s probable cause. A law enforcement officer doesn’t have to prove guilt. This is merely probable cause, suspicion to believe, reasonable suspicion.
“Here we had a report by a concerned citizen of a smell that was a strange smell to be associated with the burning of trash. Officers then went to an open field and observed from that field a trash bag that had bottles in it, yellow, that were consistent with ether Heet bottles, which is a known ingredient of the manufacturing of methamphetamine. And [Jager] smelled an odor consistent with ether, which is also a known substance with the manufacturing of methamphetamine. They then received a report that there was a lot of traffic that would come and go at night, which is consistent with drug trafficking at the residence. This is known to law enforcement. Ultimately, the officers went to the house to inquire. They had a right to be there. They have a right to go to the house and knock and talk to the occupants when they have that kind of information. They weren’t trespassing at [that] point; and even if they were, this is not trespassing in the constitutional sense. It’s a common láw trespass, but it doesn’t constitute an invasion of privacy when they went to that residence. The contents of that plastic trash hag, which wasn’t protected from rural — this wasn’t curtilage as I see it and under these facts. The Heet bottle that [then] became readily apparent, as did [blister packs of pseudoephedrine, after the attempted knock and talk] which are a known precursor for the manufacturing of methamphetamine. They had a right to take the trash, and what they found was further consistent with the process of manufacturing methamphetamine, specifically the coffee filters with the pinkish, powdery residue. These are consistent with items of manufacturing methamphetamine.
“. . . [T]he motion to suppress will be denied.” (Emphasis added.)
While Fisher objects to the seizure of the bag, he does not dispute the propriety of the methods or locations, on and off the premises, used for obtaining information, i.e., ether odor and apparent yellow containers in the bag, up to and including Jager’s knock and talk. He essentially argues that lawfully made observa tions do not equate to the right to seize. “[W]hile the characterization of an observation as a nonsearch plain view situation settles the lawfulness of the observation itself, it does not determine whether a seizure of the observed object would likewise be lawful.” (Emphasis added.) 1 LaFave, Search & Seizure § 2.2(a), p. 450 (4th ed. 2004). See, e.g., State v. Blair, 31 Kan. App. 2d 202, Syl. ¶ 3, 62 P. 3d 661 (2002) (officers lawfully on street smelled ether coming from an attached garage but had no probable cause to search the garage and residence where they found evidence of manufacture of methamphetamine).
At the scene, however, and now on appeal, die county attorney concluded the bag lawfully observed by Jager could be seized from Fisher’s property because (1) it was trash and (2) it was outside the curtilage. Curtilage is the area surrounding the residence, to which historically the Fourth Amendment protection against unreasonable searches and seizures has been extended. See State v. Basurto, 15 Kan. App. 2d 264, 266, 807 P.2d 162, aff'd 249 Kan. 584, 821 P.2d 327 (1991) (citing United States v. Dunn, 480 U.S. 294, 300, 94 L. Ed. 2d 326, 107 S. Ct. 1134, reh. denied 481 U.S. 1024 [1987]).
California v. Greenwood, 486 U.S. 35, 100 L. Ed. 2d 30, 108 S. Ct. 1625 (1988), is of guidance on tire seizure issue. There, the Supreme Court addressed a situation where (1) the trash bag (2) was admittedly outside the curtilage; it determined seizure was proper. Despite the seizure of the bag from outside tire curtilage, the Court nevertheless engaged in a reasonable expectation of privacy analysis. 486 U.S. at 39-44. Since Greenwood, lower courts have struggled with exactly how tire concept of curtilage fits into the analysis of trash seizures. See e.g., United States v. Redmon, 138 F.3d 1109 (7th Cir.) (en banc), cert. denied 525 U.S. 1066 (1998). In trash cases, this court has not only analyzed whether curtilage exists but also whether the owner has a reasonable expectation of privacy in the trash. See State v. Kimberlin, 267 Kan. 659, 662-66, 984 P.2d 141 (1999).
In Kimberlin, tire defendant placed his trash in opaque trash bags. He then put them out for city trash collection by placing them in the location customarily used for trash pickup: 5 to 8 feet from the public street which was 50 to 55 feet in front of his house in El Dorado. A drainage ditch ran between the bags and the street. There was no fence or barrier separating the trash from the street other than the drainage ditch. Defendant mowed the entire area, including the ditch. Similar to the instant case, the police retrieved the bags, discovered contraband and paraphernalia, and used the contents to support a search warrant. The execution of the warrant revealed marijuana and drug paraphernalia which served as evidence to convict. The defendant contended on appeal that the trash bags were unlawfully taken and examined by law enforcement.
As our first reason for upholding the seizure, we began by observing that the curtilage concept was not part of the Greenwood Court’s rationale in deciding the issue. Instead, Kimberlin noted: “[T]he Greenwood holding was based upon Greenwood’s lack of a reasonable expectation of privacy in his discarded trash. Absent such a reasonable expectation of privacy, there is no violation of the Fourth Amendment. Clearly, under Greenwood, the search of defendant’s trash herein was not constitutionally impermissible as claimed.” 267 Kan. at 663.
We turned to a second reason for upholding the seizure, rejecting Kimberhn’s argument that prior Kansas case law discussing curtilage in other contexts required us to distinguish Greenwood and reach a different result based upon the search and seizure section of the Kansas Constitution Bill of Rights, § 15. 267 Kan. at 664. In responding to his argument, we discussed United States v. Long, 176 F.3d 1304 (10th Cir. 1999), which addressed both the curtilage and the reasonable expectation of privacy arguments. We held:
“As in Long, [1] there was no indication that this was a secluded place or a place used for intimate activities associated with the sanctity of the home, thus, it does not have the basic attributes of curtilage. [2] Whether the trash was inside or outside the curtilage is not determinative in garbage cases. Once defendant placed his trash out for collection adjacent to a public thoroughfare, he defeated any reasonable expectation of privacy in the garbage. Long supports the state’s position in this case, as does Greenwood.” (Emphasis added.) Kimberlin, 267 Kan. at 666.
To analyze the parties’ positions in the instant case, we will therefore examine both curtilage and reasonable expectation of privacy in trash.
Curtilage
The State has the burden of proof to show that a search and seizure was lawful. State v. Damm, 246 Kan. 220, 222, 787 P.2d 1185 (1990) (citing Mincey v. Arizona, 437 U.S. 385, 390-91, 57 L. Ed. 2d 290, 98 S. Ct. 2408 [1978]). Because the State alleges the area is not curtilage, it therefore has the burden of proving that point.
However, the standard of review for whether the bag was seized from within the curtilage has not been established in Kansas law. In Kimberlin, 267 Kan. at 666, this court determined that the property did “not have the basic attributes of curtilage.” However, we did not state our standard of review; rather, because the relevant facts were not in dispute, we concluded that the general question of whether to suppress the seized evidence was a matter of law with an unlimited scope of review. 267 Kan. at 662.
Other courts are split. Many federal circuit courts of appeals, for example, have held that the determination of curtilage is a question of fact. See, e.g., Long, 176 F.3d at 1308 (curtilage is a factual determination subject to clearly erroneous standard of review); United States v. Reilly, 76 F.3d 1271, 1275 (2d Cir. 1996); United States v. Friend, 50 F.3d 548, 552 (8th Cir. 1995); United States v. Brady, 993 F.2d 177, 178-79 (9th Cir. 1993); United States v. Acosta, 965 F.2d 1248, 1255 (3d Cir. 1992); United States v. Hatch, 931 F.2d 1478, 1480 (11th Cir. 1991). For state courts, see State v. Sutton, 112 N.M. 449, 452, 816 P.2d 518 (1991); State v. Russo, 68 Or. App. 760, 763, 783 P.2d 163 (1984).
The recent trend, however, has been to treat the issue as a mixed question of fact and law. Several courts rely upon the Supreme Court’s decision in Ornelas v. United States, 517 U.S. 690, 699, 134 L. Ed. 2d 911, 116 S. Ct. 1657 (1996), which held that on appeal, a judge’s ultimate determination of Fourth Amendment questions similar to curtilage — reasonable suspicion and probable cause — should be reviewed de novo, while findings of historical fact should be reviewed only for clear error under the federal rules. See United States v. Breza, 308 F.3d 430, 435 (4th Cir. 2002); United States v. Diehl, 276 F.3d 32, 37 (1st Cir. 2002); United States v. Johnson, 256 F.3d 895, 898, 911-13 (9th Cir. 2001); State v. Martwick, 231 Wis. 2d 801, 811-14, 604 N.W.2d 552 (2000); see also United States v. Reilly, 91 F.3d 331, 331 (2d Cir. 1996) (assumed, without deciding, that Ornelas requires appellate court to review the district court’s finding of curtilage de novo.) As the First Circuit Court of Appeals stated in Diehl: “As in those inquiries, the question of curtilage requires a court to make a legal judgment about the significance of a collection of facts.” 276 F.3d at 37. Accordingly, “[tjhere is no conceptual difference between calling an area ‘curtilage’ and telling an officer he had ‘probable cause’ or ‘reasonable suspicion.’” Johnson, 256 F.3d at 912.
Several of these courts also rely upon their own historical two-step standard of review to constitutional search and seizure inquiries, noting that “[wjhether an officer has illegally searched within the curtilage of a person’s residence is a search and seizure issue under the Fourth Amendment.” Martwick, 231 Wis. 2d at 812-13; see also Diehl, 276 F.3d at 38 (“ ‘In scrutinizing a district court’s denial of a suppression motion, the court of appeals will review findings of fact for clear error, while at the same time subjecting the trial court’s ultimate constitutional conclusions to plenaiy oversight.’ ”); Breza, 308 F.3d at 435 (“We [Fourth Circuit] agree with tire First Circuit that the Ornelas standard — which is the same as that traditionally applied by this circuit to rulings on suppression motions, see Rusher, 966 F.2d at 873-applies to curtilage determinations.”).
We agree with this recent trend for several reasons. First, we have relied upon the Ornelas rationale in the area of the voluntariness of the waiver of Miranda rights. See State v. Mattox, 280 Kan. 473, 483, 124 P.3d 6 (2005) (“ ‘Like the issue of the voluntariness of a defendant’s statement, the voluntariness of a Miranda waiver requires assessment of the historical facts of the case in light of a prevailing legal standard. Like the issue ... in Ornelas, independent review is necessary to ensure uniformity of decision and the predictability and ease of administration that follow from uniformity of decision.’ ”). Second, as stated above, we also rely upon a two-step standard of review in ruling on suppression issues. Horn, 278 Kan. at 30.
We conclude that the question of curtilage is a mixed question of fact and law. Accordingly, we review the district court’s factual findings for substantial competent evidence and review de novo the district court’s legal conclusion whether a particular seizure occurred within the curtilage.
Without elaboration, the district court in the instant case simply concluded that the trash bag was not within the curtilage. Without the benefit of the standard of review we articulate today, a majority of the Court of Appeals panel affirmed this determination.
The Court of Appeals correctly acknowledged the central place that Dunn, 480 U.S. 294, occupies in the curtilage analysis. Dunn cited Oliver v. United States, 466 U.S. 170, 180, 80 L. Ed. 2d 214, 104 S. Ct. 1735 (1984), as recognizing that the extent of the curtilage is determined by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself. 480 U.S. at 300. Dunn also acknowledged that Oliver identified the central component of this inquiry as whether the area harbors the “ Intimate activity associated with the “sanctity of a man’s home and the privacies of life.” ’ ” 480 U.S. at 300.
The Dunn Court held that curtilage questions should be resolved with particular reference to four factors:
“[1] The proximity of the area claimed to be curtilage to the home, [2] whether the area is included within an enclosure surrounding the home, [3] the nature of the uses to which the area is put, and [4] the steps taken by the resident to protect the area from observation by people passing by. [Citations omitted.]” 480 U.S. at 301.
The Dunn Court was also quick to point out, however:
“We do not suggest that combining these factors produces a finely tuned formula that, when mechanically applied, yields a ‘correct’ answer to all extent-of-curtilage questions. Rather, these factors are useful analytical tools only to the degree that, in any given case, they bear upon the centrally relevant consideration — whether the area in question is so intimately tied to the home itself that is should be placed under the home’s ‘umbrella’ of Fourth Amendment protection.” 480 U.S. at 301.
In concluding that the bag was outside the curtilage, the Court of Appeals explained as follows:
“Here, [1] the trash bag was located approximately 50 yards from Fisher’s residence. [2] The property is surrounded by a barbed wire fence. However, such fences are ‘designed and constructed to corral livestock, not to prevent persons from observing what lay inside the enclosed areas.’ United States v. Dunn, 480 U.S. 294, 303, 94 L. Ed. 2d 326, 107 S. Ct. 1134 (1987).
“[3] Fisher used the area to store and incinerate trash. Although Fisher did not set his trash out to be collected by a third party as in Greenwood, the trash did remain readily accessible to scavengers. [See Greenwood] 486 U.S. at 40. In addition, by incinerating his refuse, Fisher was voluntarily revealing certain characteristics of Ills trash to die public. Significantly, the initial tip in this case involved a concerned citizen’s report of peculiar-smelling trash being burned at Fisher’s residence. Therefore, the act of burning trash does not constitute an ‘intimate activity associated with tire sanctity of a person’s home and the privacies of life. [Citation omitted.]’ Tinsley, 16 Kan. App. 2d at 290-91.
“[4] Finally, as the trash bag was observable from a nearby highway, Fisher had taken no steps to conceal it from observation by people walking by. Therefore, the trash bag at issue in this case was located in an open field, and not within the curtilage of Fisher’s home, when it was observed by Detective Jager. Accordingly, under Oliver, Detective Jager’s visual observation of the trash bag did not violate the Fourth Amendment.” State v. Fisher, No. 89,300, unpublished opinion filed February 11, 2005, slip op. at 7-8.
Because the district court made no findings of fact directly supporting its conclusion regarding the curtilage issue using the Dunn analysis, the Court of Appeals was unable to apply a substantial competent evidence standard. It apparently reviewed the record de novo for the facts it recited. The record affords us the same opportunity — and to point out additional facts.
The Fisher property is bounded on the east by the highway and on the west, north and south by a barbed wire fence. Outside the fence is farm ground in three directions. According to the photographs, inside die fence is short grass which appears to be mowed and maintained throughout. Inside the fence are a house on the east, a barn 50 to 60 yards straight west of the house’s western exterior near the western barbed wire fence, and a small shed equidistant between the house and the barn but somewhat north, actually forming part of the north fence. Photographs reveal the eastern edge of the house is approximately 25 yards west of the highway and sits on the northeast part of the property. Its front porch and door face south.
From Highway 63, a driveway runs from east to west on the south of the house, curving to tire north and ending in a turnaround near the center of the area bounded by the three buildings — which Jager described as the “back side of the house.” The only apparent walkway or sidewalk leads directly south from the house’s front door to the driveway. According to photographs in the record, several large trees surround tire house inside of the driveway. Photographs show that vehicles are parked in the area formed by the three buildings. A garden apparently is between the bam and shed in the northwest corner of the property. A power pole with a readable electricity meter is near the curve (from west to north) in the driveway. A “Notice, No Trespassing” sign is on another pole near the entrance to the driveway from the highway. The bag was found between the house and the bam, i.e., within the area bounded by the three buildings.
We begin our determination by observing this is rural property, 4 miles from the nearest town. There are no other houses in the general vicinity of the house on the west side of the highway. On the east side of the highway, a neighbor’s house sits approximately a quarter of a mile away. See Reilly, 76 F.3d at 1277 (“curtilage may reach a larger area in a rural setting”). We next apply the Dunn factors:
(1) Proximity of the area claimed to be curtilage to the home: We agree that “[t]here is not any fixed distance at which curtilage ends.” United States v. Depew, 8 F.3d 1424 (9th Cir. 1993). Here, although the barn is 50-60 yards west of the house’s western edge, the exact distance of the trash bag from any feature is unknown, but it was found between the bam and house, albeit nearer the barn. See United States v. Swepston, 987 F.2d 1510, 1514-15 (10th Cir. 1993) (chicken shed approximately 100 feet from house within curtilage); State v. Rogers, 161 Vt. 236, 241-45, 638 A.2d 569 (1993) (garden within curtilage though 150 feet from house). Several courts have noted that in the context of a rural setting, the area extending to outbuildings may be in the curtilage. See State v. O’Brien, 223 Wis. 2d 303, 310, 588 N.W.2d 8 (1999) (200 feet, farm complex consisted of duplex, a bam, an outbuilding, a small backyard, and two driveways.); cf. State v. Tinsley, 16 Kan. App. 2d 287, 292, 823 P.2d 205 (1991) (bam and catde shed “could often be presumed to be used in the ‘intimate activity’ of a rural farm home”).
(2) Whether the area is included within an enclosure surrounding the home: There is barbed wire fencing on three sides and a highway on another. See United States v. Jenkins, 124 F.3d 768, 773 (6th Cir. 1997) (backyard within curtilage, as it “enclosed on three sides by a wire fence” and “the fact that the yard and the house lie within the same fenced-off area is particularly significant.”); Swepston, 987 F.2d at 1514-15 (chicken shed within curtilage where barbed wire fence encircled both house and shed and no fence separated the two; garden not within curtilage where it separated from house by chain-link fence.) Moreover, the area within the barbed wire fence appears to be mowed and maintained. See Swepston, 987 F.2d at 1512 (area between house and chicken shed which consists mainly of trees and underbmsh is maintained and kept cleared by property owner, and there is a path leading from house to chicken shed.); see Martwick, 231 Wis. 2d at 820-21 (marijuana plants outside curtilage, as beyond point where “curtilage is clearly marked by the low-cut weeds and brush,” after which “treé line then suddenly appears”).
(3) The nature of the uses to which the area is put: the bag was found between the bam and the driveway which splits the area between the house and the bam. Photographs show vehicles are parked on the driveway, between tire driveway and the house, and between the driveway and the small shed. Additionally, the barbed wire fence-enclosed area also apparently includes a garden between the barn and shed. See Jenkins, 124 F.3d at 773 (backyard within curtilage, as it was used, among other things, “as an area to garden;” Rogers, 161 Vt. at 241-43 (garden within curtilage, as “gardening is an activiiy often associated with the curtilage of a home”).
(4) The steps taken by the resident to protect the area from observation by people passing by: The bag was found nearly 100 hundred yards from the highway, i.e., behind the large two-story house whose eastern edge is 25 yards west of the highway and near the bam which, because of the size of the house, is more than 50-60 yards further west of the highway. According to the photo graphs, from the highway the house would have blocked a direct view of the bag, and the bag would have been observable only from obliques to the house, concomitantly from furdier distances. Outside of that distance, the house’s placement, the remoteness of the house from other rural homes in the area, and a “No Trespassing” sign, however, there is nothing to suggest the residents took any particular precautions to prevent observation. As the Court of Appeals panel noted, the barbed wire fences do not prevent observation. Ether was smelled from outside tire property. Yellow containers in the translucent bag were discovered through a detective’s use of binoculars while parked near the highway and oblique to the house.
As the Dunn Court warned, however, the mere combining of these factors does not produce
“a finely tuned formula that, when mechanically applied, yields a ‘correct answer’ to all extent-of-curtilage questions. Rather, these factors are useful analytical tools only to the degree that, in any given case, they bear upon the centrally relevant consideration — whether the area in question is so intimately tied to tire home itself that it should be placed under fire home’s ‘umbrella’ of Fourth Amendment protection.” 480 U.S. at 301.
Based upon these facts, particularly this rural environment, we independently conclude the trash bag was found within tire curtilage. We hold that in rural Kansas, Fisher’s area “ ‘harbors the intimate activity associated with the “sanctity of a person’s home and the privacies of life,” ’ ” Dunn, 480 U.S. at 300.
Reasonable expectation of privacy
Even though we have concluded that the trash bag was seized from within the curtilage, we still need to examine whether Fisher maintained a reasonable expectation of privacy in tire bag. See Kimberlin, 267 Kan. at 666 (curtilage is not determinative in garbage cases). As the Court of Appeals stated in State v. Fortune, 28 Kan. App. 2d 559, 563, 20 P.2d 74, rev. denied 271 Kan. 1039 (2001):
“Under Greenwood, the location of a person’s garbage standing alone does not establish whether the search of the garbage was reasonable; rather, the analysis must include an examination of whether die person manifested a subjective expectation of privacy in the trash container and whether that expectation of privacy in the garbage is objectively reasonable.”
The Fortune court concluded that the defendant had no reasonable expectation of privacy in discarded trash, “even if it were within the curtilage of his home.” 28 Kan. App. 2d at 567; see also State v. Alexander, 26 Kan. App. 2d 192, 195-98, 981 P.2d 761, rev. denied 268 Kan. 888 (1999) (collection of trash cases); Long, 176 F.3d at 1308 (“Even if we were to conclude that the trash bags were within the curtilage, Defendant would not prevail. . . . Defendant must still show that he had a reasonable expectation of privacy in the trash bags. Defendant fails to do so.”) (citing Greenwood, 486 U.S. at 39).
An important inquiry in applying the Greenwood analysis to garbage within the curtilage is whether the garbage was so readily accessible to the public that its contents were exposed to the public for Fourth Amendment purposes. See United States v. Hedrick, 922 F.2d 396, 400 (7th Cir. 1991). As the Tenth Circuit said in Long, 176 F.3d at 1308:
“In garbage cases, Fourth Amendment reasonableness turns on public accessibility to the trash. See Greenwood, 486 U.S. at 41, 108 S. Ct. 1625. Society does not recognize a reasonable expectation of privacy in ‘trash left for collection in an area accessible to the public.’ Id. .. . Applying Greenwood to the circumstances of this case, we conclude that Defendant exposed the garbage bags to the public to such a degree that he defeated his Fourth Amendment claim. See id. at 41.”
In Long, defendant placed his garbage bags for commercial collection on top of a trailer parked only 3 feet from the alley behind his house. The Tenth Circuit noted: “As the district court found, anyone traveling down the alley could have reached up and snatched the bags.” 176 F.3d at 1309. The court further found that the location was not secluded or difficult to reach. It was near the alley, and no fence or other barrier separated the trash from the alley. 176 F.3d at 1309.
In the instant case, we have something altogether different. The trash bag was placed almost 100 yards from the public highway, blocked from the direct east view from the highway by the house, obscured from the direct north view by the small shed, and blocked from the direct west view by the bam; the only unobstructed direct view was from the south — -at the farthest end of the property considerably more than 100 yards away. Jager’s oblique off-premises vantage point was also more than 100 yards away from the bag; the bag’s yellow containers were visible only with use of binoculars. The bag was not exposed for the public to see; indeed, it was not left out for commercial trash collection. Rather, it was placed on the ground near a barrel for eventual disposition by Fisher. The bag had been there from at least the time Jager had seen it with binoculars on August 29 until he returned later that day with the county attorney.
Under these circumstances, we conclude rural residents in Kansas would be quite surprised to leam that highway travelers, “children, scavengers, snoops and other members of the public” (Greenwood, 486 U.S. at 40) would be fully justified in pawing through the contents of a resident’s trash bag placed approximately 100 yards from the highway and behind a rural home. See State v. Kriley, 976 S.W.2d 16, 23 (Mo. App. 1998) (“[I]t is reasonable to infer that the occupants of the residence would have been surprised to find uninvited guests in the structure.”).
In short, we conclude that Fisher maintained a reasonable expectation of privacy in his trash bag at its specific location — a subjective expectation that was objectively reasonable. Accordingly, the bag’s warrantless seizure was per se unreasonable unless permissible under some recognized exception to the warrant requirement. See State v. Mendez, 275 Kan. 412, 420-21, 66 P.3d 811 (2003).
Plain view
The State argued to the Court of Appeals panel, which agreed, that the warrantless seizure of the bag outside the curtilage was appropriate under the plain view doctrine. At our oral arguments, the State argued in the alternative, i.e., even if the seizure occurred within the curtilage, as we have determined, that the plain view doctrine still justified the seizure. Under the facts of this case, we disagree for several reasons.
Before proceeding to analyze the possible application of the plain view doctrine to our facts, however, some background is in order. It is first important to keep clear the distinctions between die different types of “plain view.” As the Supreme Court has stated: “ It is important to distinguish “plain view” as used in Coolidge [v. New Hampshire, 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022, reh. denied 404 U.S. 874 (1971)] to justify seizure of an object, from an officer s mere observation of an item left in plain view. Whereas the latter generally involves no Fourth Amendment search, [citations omitted] . . . the former generally does implicate the Amendment’s limitations upon seizures of personal property.” Horton v. California, 496 U.S. 128, 133 n.5, 110 L. Ed. 2d 112, 110 S. Ct. 2301 (1990).
A number of courts have therefore used the term “open view doctrine” to refer to the rule that no Fourth Amendment search occurs where a law enforcement officer observes incriminating evidence or unlawful activity from a nonintrusive vantage point. See, e.g., State v. Clark, 124 Idaho 308, 859 P.2d 344 (1993). Thus, the “open view” terminology distinguishes the analysis applicable to warrantless observations from the legally distinct “plain view” doctrine applicable to seizures. 124 Idaho at 313. It is unclear, however, which of tire doctrines the State applies to which events on the day of the seizure.
As for any State contention that the open view of the bag from the highway justified the seizure, we repeat that lawful observation does not equate to lawful seizure. As stated by one commentator:
“[When] police officers stand[] outside a constitutionally-protected location observing items within that protected area . . . they may employ the information they have garnered through their observation, for example in seeking a warrant, [but] the view in and of itself does not justify an intrusion into the protected area. Simply because they have seen an item that they have a legitimate right to observe does not justify a warrantless intrusion into an otherwise constitutionally-protected area.” Wallin, Plain View Revisited, 22 Pace L. Rev. 307, 325 (2002).
See also United States v. Naugle, 997 F.2d 819, 823 (10th Cir. 1993) (when officers make observations via long-range surveillance, they “cannot use the plain view doctrine to justify a warrantless seizure, because to do so would require a warrantless entiy upon private premises.”).
Accordingly, unlike mere observations made under “open view,” the phrase “plain view” refers to seizures, not searches; it deals with circumstances in which an officer has already justifiably in- traded into a constitutionally protected area and then spots and removes incriminating evidence. 22 Pace L. Rev. at 325. In short, absent a justifiable intrusion onto Fisher s curtilage, the mere observation of the bag from the highway does not itself allow the bag’s seizure.
As for any State contention that its justified intrusion was Jager’s knock and talk and that the “plain view” of 'the bag obtained directly thereafter justified the seizure, we hold that the open observation of the bag from the highway — which led to the knock and talk — cannot also serve as a “plain view” of the bag from within the curtilage authorizing the seizure.
Commonwealth v. English, 839 A.2d 1136 (Pa. Super. 2003), is on point. There, police received an anonymous tip that the residents of a home wei'e growing marijuana on their back porch. After the officers received no response to their knocks at the front door, which apparently were meant to be a knock and talk, they walked toward the back of the house through a neighbor’s yard. From there they observed marijuana growing on English’s back deck. They then knocked repeatedly on English’s back door and again received no response. After unsuccessfully trying the front door again, they unlatched the deck gate, entered, and seized the marijuana plants. The officers then obtained a search warrant, which upon execution revealed drag paraphernalia.
On appeal, English challenged the trial court’s denial of his suppression motion. The appellate court rejected his claim that the officers initially viewed the plants from an unlawful vantage point. It held that the plants were in an open area, without cover, on English’s deck, clearly visible to anyone who cared to look that way. They could be seen not only from the neighbor’s yard, but also from the road in front of the neighbor’s house. 839 A.2d at 1139. In other words, the plants were openly observed.
The court accepted, however, English’s alternative argument, that even if the initial observation was proper, the subsequent seizure of the plants without meeting the warrant requirement, or an exception thereto, was improper. It observed that “[w]hile it is clear that the plain view doctrine applied in this case to validate the officers initial observation of the plants [from the lawful vantage point and open view from the neighbors’ yard], application of the doctrine did not authorize the seizure of the plants.” 839 A.2d at 1140.
The English court drew distinctions between situations in which the view takes place after an intrusion into a constitutionally protected area and situations in which the view takes place before the intrusion. It concluded that in the situation involving a pre-intrusion view, the subsequent warrantless seizure of evidence cannot be justified by plain view alone:
“In those cases [after-intrusion view] because the justifiable intrusion already has occurred, no further intrusion is occasioned by the seizure of evidence which is in plain view and die seizure is permitted without more. . . . In the pre-intrusion view cases no intrusion is occasioned by the view and the intrusion necessary to seize evidence must be justified by a warrant or one of the exceptions to the warrant requirement.” 839 A.2d at 1140.
The court determined that English’s situation involved a preintrusion view. The officers first observed the marijuana from a lawful vantage point and at the time of that initial observation they had not intruded into the constitutionally protected area that held the plants — which it determined was curtilage (a deck enclosed by a fence and latched gate). It concluded that the officers were required to get a warrant in order to enter the defendant’s deck or, in the alternative, to establish an applicable exception to the warrant requirement — besides plain view. 839 A.2d at 1141. The court impliedly held that under its facts, the “knock and talk” would not qualify as a justified intrusion leading to proper seizure under plain view. 839 A.2d at 1140-43.
We agree with the holding of the English court. We specifically disapprove of any State attempt to “piggyback,” i.e., to observe an object in open view from off the premises, to use knock and — in these cases, unsuccessful — talk for justified entry onto the premises, and then assert plain view while on the premises as a legal basis to seize the identical object that had been observed earlier. Such piggybacking under these facts would smear the careful distinctions drawn by the Horton Court between the right to merely observe an object (here, from off the premises) and the right to seize that object (on the premises). From a practical standpoint, this piggyback practice would grant law enforcement the right to seize virtually any object initially observed from a distance and subsequently located within plain view of a residential doorway by an officer purposely looking for that identical object.
An additional reason for us to reject the State’s request to apply the plain view doctrine for justification of tire seizure is that Jager’s premises search and seizure of the bag exceeded the scope of his justified intrusion. This rejection applies whether the State were to contend that the off-highway observation of the bag alone, the off-site smell of ether alone, the previous citizens’ tips alone, or some combinations thereof, justified the knock and talk.
We acknowledge that the knock and talk allows officers to come within the curtilage to ask questions. See, e.g., United States v. Hammett, 236 F.3d 1054, 1059 (9th Cir. 2001) (“officer may encroach upon the curtilage of a home for the purpose of asking questions”); United States v. Daoust, 916 F.2d 757 (1st Cir. 1990). We also acknowledge that if no one answers the knock, as here, the officers can be justified in knocking on more doors. Hammett, 236 F.3d at 1060 (where no one answered front door, officer properly “circled the house with the intent of locating another door”); see Daoust, 916 F.2d at 758.
We also acknowledge that, as here, while driving to and from the parking spot on the driveway, while walking to and from the front door, and while at the front door, the officer may make lawful observations. State v. Tye, 276 Ga. 559, 562-63, 580 S.E.2d 528 (2003) (officers justified under plain view doctrine when seizing blood-stained shoes being worn by man on his porch while officers interviewing him about murder of next-door neighbor); State v. Hubbel, 286 Mont. 200, 210, 951 P.2d 971 (1997) (police “well within their authority to proceed on the open walkway to the front door, where they saw yet more evidence in plain view”); State v. Portrey, 134 Or. App. 460, 465, 896 P.2d 7 (1995) (“Here, the officers, like any other person, were at liberty to observe all objects and activities from that vantage point at the front door.”); State v. Lodermeier, 481 N.W.2d 614, 624 (S.D. 1992) (officer examination of exterior of garden tractor parked in driveway lawful, as “officer with legitimate business may enter a driveway and, while there, may inspect objects in open view”).
However, Jager did not have the run of the entire Fisher property. See Rogers v. Pendleton, 249 F.3d 279, 289 (4th Cir. 2001) (the right to knock and talk does not include the right to make a general investigation in the curtilage based on reasonable suspicion). As the court stated in State v. Seagull, 95 Wash. 2d 898, 902-03, 632 P.2d 44 (1981):
“It is clear that police with legitimate business may enter areas of the curtilage which are impliedly open, such as access routes to the house. In so doing they are free to keep their eyes open. [Citation omitted.] An officer is permitted the same license to intrude as a reasonably respectful citizen. [Citation omitted.] However, a substantial and unreasonable departure from such an area, or a particularly intrusive method of viewing, will exceed the scope of the implied invitation and intrude upon a constitutionally protected expectation of privacy.” (Emphasis added.)
Accordingly, any observations Jager made while exceeding the scope of his lawful intrusion into the curtilage are unlawful. See People v. Thompson, 221 Cal. App. 3d 923, 943, 270 Cal. Rptr. 863 (1990); Clark, 124 Idaho at 311-14 (although deputy was pursuing a legitimate police purpose by investigating a complaint of an excessively loud party and was therefore justified in entering the curtilage, his view through the comer window would still constitute an unlawful search if he unreasonably strayed from the normal access route to the front door); Robinson v. Com., 47 Va. App. 533, 625 S.E.2d 651 (2006); see also Gonzalez v. State, 588 S.W.2d 355, 359-60 (Tex. Crim. App. 1979) (purported plain view search unconstitutional where after officer received no response to his knocks at front and back doors of defendant’s residence to investigate tip about rifle shots, deviated from that route to search for game violations, followed a beaten path through back yard’s tall grass, and explored weeded area near old outhouse which eventually revealed marijuana).
As a result, any seizure made while Jager was exceeding the scope of his lawful intrusion into the curtilage was also unlawful. Cf. Horton v. California, 496 U.S. at 140 (“If the scope of tire search exceeds that permitted by the . . . character of the rele vant exception from tire warrant requirement, the subsequent seizure is unconstitutional without more.”).
There is little evidence in the record indicating that at the time Jager observed the bag while on the premises he was performing any legitimate functions, i.e., observing while moving around the house exterior to look for another door or observing while on his way back to his vehicle after no one answered the knock. Admittedly, he testified at one point that he was “circling around to leave dre property” when he observed the bag’s contents. On this record, however, we find the evidence insufficient for the State to meet its burden that Jager did not exceed his lawful intrusion, i.e., the knock and talk. As noted, we may make a factual determination from the record when neither lower court has addressed the issue, e.g., in the absence of findings by the district court.
The weight of the evidence reveals that once Jager’s knock and talk was complete, instead of driving away from the house to the highway, he simply drove deeper into the property on the driveway- — according to the photographs, perhaps as much as 50 yards— directly to the previously observed bag. Once there, from his vehicle he noticed that it contained Actifed blister packs and, in confirmation of his earlier opinion, Heet bottles. He got out of the vehicle and seized the bag.
Indeed, the evidence in the record reveals that the county attorney had advised Jager before he ever entered the property that the bag was outside the curtilage and, as a result, he “could obtain the bag” without more. The record evidence reveals that instead of going directly to seize the bag, Jager wished to first conduct a knock and talk. Once that mission was unsuccessful, the only obstacle apparent to Jager before he seized the bag per the county attorney’s advice had been eliminated. He drove on the driveway directly to the bag and seized it.
State v. Ross, 91 Wash. App. 814, 959 P.2d 1188 (1998), contains some parallels regarding exceeding the scope of the lawful intrusion. There, one deputy informed another of information obtained from an informant about a possible marijuana grow operation at a certain residential location in Tacoma. Later the deputy and another went to the residence. They parked on the street and walked up the driveway toward the garage, located approximately 25-40 yards back from the street. One deputy detected the smell of growing marijuana emanating from the garage, and they left. They returned to the residence approximately 4 hours later, approached the garage in the same manner, and both smelled growing marijuana.
One deputy filed an affidavit of probable cause and obtained a search warrant for the garage, house, and vehicle. Upon execution of the search warrant, deputies found growing marijuana plants in the garage and house and packaged marijuana in the house. After the trial court denied the defendant’s motion to suppress and convicted the defendant, the Court of Appeals reversed on the basis that the deputies had exceeded the scope of any implied invitation, i.e., to investigate criminal activity. 91 Wash. App. at 819-22. Although the court looked at a number of different factors, among those upon which the court relied that are similar to those present in the instant case are (1) the discovery of the marijuana was not accidental, i.e., the officers entered the property specifically to investigate an informant’s tip about a marijuana grow operation, and (2) to reach the spot where they smelled the marijuana, they deviated nearly 10 feet from a direct route between their patrol car and the gate to the side path to the front door.
In light of these bases for our decision, we need not reach Fisher’s argument about lack of exigent circumstances. Based on the above analysis, the district court and the Court of Appeals erred in upholding the bag seizure.
Review of the excised affidavit
Our analysis of the suppression issue does not end here, however. We now examine the validity of the search warrant’s issuance based upon the remaining — and lawfully obtained — evidence. See State v. Weas, 26 Kan. App. 2d 598, 603, 992 P.2d 221, rev. denied 268 Kan. 895 (2000).
Fisher’s motion to suppress, among other things, expressly alleged “[tjhat the facts upon which the search warrant is based are insufficient to form the basis of probable cause.” The motion recited a number of Jager’s affidavit paragraphs and for each, not just tire trash bag evidence, argued why the application failed to establish probable cause.
As mentioned, the district court conducted an evidentiary hearing and, among other things, received testimony from Jager. It then denied the motion, holding that the “totality of the circumstances” yielded probable cause. Based upon the district court’s statements of record cited earlier in the opinion, the court’s determination of probable cause appeared to be de novo. When reviewing a motion to suppress evidence, this court reviews the factual underpinnings of a district court’s decision by a substantial competent evidence standard and the ultimate legal conclusion drawn from those facts by a de novo standard. The ultimate determination of the suppression of evidence is a legal question requiring independent review. State v. Horn, 278 Kan. 24, 30, 91 P.3d 517 (2004).
However, the specific, narrower question within the district court’s general determination of suppression — a magistrate judge’s finding of probable cause to issue a search warrant — is reviewed under a different standard. See, e.g., United States v. Hill, 459 F.3d 966, 970 (9th Cir. 2006); United States v. Conley, 4 F.3d 1200, 1204-05 (3d Cir. 1993). As this court held in State v. Hicks, 282 Kan. 599, Syl. ¶ 2, 147 P.3d 1076 (2006), the correct standard of review is instead more deferential to the magistrate judge. The deference is owed by all reviewing courts, district and appellate. More specifically, the standard is whether the evidence provided the magistrate issuing the search warrant with a substantial basis for determining that probable cause existed. As the Supreme Court stated in Illinois v. Gates, 462 U.S. 213, 238-39, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983):
“The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for . . . conclud[ing]’ that probable cause existed. [Citation omitted.]”
As we explained in Hicks, when reviewing the issuing judge’s decision to issue the warrant, we “conduct an independent analysis of the content of the affidavit, but we need only see enough to persuade us that there was a substantial basis for the magistrate’s conclusion.” Hicks, 282 Kan. at 613. One justification for applying this standard, which is less rigorous than the de novo standard of review of reasonable suspicion and probable cause determinations underlying warrantless searches, is to provide law enforcement with an incentive to seek warrants. Hicks, 282 Kan. at 611 (citing Ornelas v. United States, 517 U.S. 690, 699, 134 L. Ed. 2d 911, 116 S. Ct. 1657 [1996]).
Hicks presents a different fact pattern than the instant case, however. It concerned a simple review of an affidavit for a search warrant issued by a magistrate judge. On the other hand, Fisher requires us to review an affidavit — found by a magistrate judge to sufficiently establish probable cause when in its complete form— but now with the unlawfully obtained evidence excised. A threshold question then arises whether we still apply the deferential standard of review articulated in Gates and Hicks to the magistrate’s determination of probable cause or whether the excision factor mandates a different standard.
In Kansas, while Fisher’s fact pattern has arisen previously, our appellate courts have not expressly considered whether a distinction is to be drawn. In Weas, 26 Kan. App. 2d 598, the court addressed law enforcement’s warrantless entry into a house where the officers viewed drugs and paraphernalia at various locations. The officers then sought and obtained a search warrant which served as the basis for seizure of the items related to drugs as well as a sexual assault. Although the court held the warrantless entry was justified, it addressed an alternative basis for refusing to suppress the evidence seized:
“Assuming the application and affidavit for the search warrant contained information both lawfully and unlawfully obtained, the question remains whether the lawfully obtained information by itself supports probable cause that would have justified issuance of the search warrant by the magistrate.” 26 Kan. App. 2d at 603.
After reviewing the remaining allegations in the affidavit — regarding the sexual assault — the Court of Appeals simply “conclude [d] beyond a reasonable doubt that the magistrate would have issued a search warrant for the residence based upon the lawfully obtained information possessed by the police before the warrant-less entry into tire residence.” 26 Kan. App. 2d at 604.
Similarly, in State v. Wilson, No. 95,028, unpublished Court of Appeals opinion filed August 18,2006, a search warrant was issued on the basis of a marijuana pipe found in defendant’s basement after a warrantless search, remnants of a meth lab found in a trash can behind the residence, and a chemical smell detected by the officers upon approaching the residence. Execution of the warrant resulted in the seizure of meth production and other drug-related evidence. Among other things, the Court of Appeals acknowledged that the smell of ether alone did not constitute probable cause, citing State v. Blair, 31 Kan. App. 2d 202, 62 P.3d 661 (2002). It concluded that if it found the officers legally obtained either die pipe or lab remnants, then it was required to determine whether such evidence, in conjunction with the chemical smell, provided a probable cause basis for the search warrant, citing Weas. Wilson, slip op. at 12-13.
The Wilson court held that because the pipe and trash can contents were illegally seized they could not have been used to establish probable cause: “Because other than an unidentified chemical smell no evidence remains to support the warrant, we conclude the district court did not err in finding the warrant was not supported by probable cause and in granting the defendant’s motion to suppress.” Slip op. at 24. As in Weas, the Wilson court did not express any distinctions to be drawn between the standards for reviewing a magistrate judge’s consideration of excised versus unexcised affidavits.
Other jurisdictions are split on the standard for reviewing an excised affidavit. For example, Missouri courts expressly reject the Gates standard of giving deference to an initial judicial determination of probable cause in such circumstances. After reviewing Missouri case law, the court concluded in State v. Mahsman, 157 S.W.3d 245, 251 (Mo. App. 2004):
“ ‘Our ultimate inquiry is not whether the affidavits contained allegations based upon illegally obtained evidence but whether, if setting aside all tainted allegations, the independent and lawful information stated in the affidavits suffices to show probable cause.’ [Citation omitted.] Where, as here, the appellate court must excise tainted information from the affidavit, probable cause is determined without the deference ordinarily given to the issuingjudge’s decision on an affidavit containing only untainted information. [Citations omitted.]” (Emphasis added.)
The Mahsman court readily acknowledged, however, that its holding was based upon its reading of other Missouri cases where, without reference to a particular standard of review, the courts appeared to review excised affidavits de novo and without any deference to the issuingjudge’s determination. 157 S.W.3d at 251 n.2.
By contrast, Idaho appears to still apply the deferential standard. In State v. Johnson, 110 Idaho 516, 716 P.2d 1288 (1986), certain evidence was the result of an unlawful search and was therefore excised from the affidavit in support of a search warrant request. The court then “tum[ed] to the rest of the affidavit ... to determine if it contains adequate facts by which the magistrate could have concluded that probable cause exists for issuance of tire search warrant.” 110 Idaho at 526. After discussing Gates, the court concluded:
“Thus, we hold, based upon [the remaining allegations in the affidavit], that there ivas not a substantial basis upon which the magistrate could have found that there was a fair probability that contraband would be found inside Johnson’s home. ‘[G]iven all the circumstances set forth in the affidavit . . . ,’ [Gates, 462 U.S. at 238,] we hold that there was insufficient evidence by which tire magistrate could have found probable cause.” (Emphasis added.) 110 Idaho at 527-28.
Unlike the Missouri court in Mahsman, Idaho apparently does not expressly consider the alternative standard of review — which in Johnson, would have been de novo. And neither jurisdiction provides a rationale for why it applies its particular standard over another.
We see no persuasive reason to depart from the Gates deferential standard and to embrace the de novo standard when examining an excised affidavit that had been considered in its complete form by a magistrate judge before issuing a search warrant. We therefore proceed to an analysis of the excised affidavit utilizing the deferential standard as articulated in Hicks:
“In determining whether probable cause exists to support a search warrant, the task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit, including the veracity and basis of knowledge of any persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.”
“When an affidavit in support of an application for search warrant is challenged, the task of the reviewing court is to ensure that die issuing magistrate had a substantial basis for concluding probable cause existed. This standard is inherently deferential. It does not demand that the reviewing court determine whether, as a matter of law, probable cause existed; rather, the standard translates to whether the affidavit provided substantial basis for the magistrate’s determination that there is a fair probability that evidence will be found in the place to be searched.” Hicks, 282 Kan. 599, Syl., ¶¶ 1, 2.
According to Fisher’s motion to suppress, the application and supporting affidavit of Jager — now absent the contents of the wrongfully seized bag — are summarized as follows:
Paragraph six: A concerned citizen stated that the property residents were burning trash outside; it was not the typical trash-burning smell, and it had a peculiar smell. He then became suspicious and started paying closer attention to the residence. The concerned citizen also stated that several vehicles came and went from the residence, staying a short time.
Paragraph eight: Another unidentified concerned citizen stated that between August 26, 2001, and August 28, 2001, a blue and silver conversion van arrived at the residence. A white female was driving the van and parked it by the shed. A white male came out of the residence and met with the female. The two moved some boxes from the van into the shed.
Paragraph nine: While in an open field next to the residence, officers noticed a strong smell of ether coming from the area west of the shed.
Paragraph ten: Apparently on the same day, affiant Jager went back to the property and saw a white trash bag sitting along the side of the west shed (bam). Jager stated that the bag was approximately 50-60 yards away from the main residence, next to the shed and a trash container. With the use of binoculars, Jager could see yellow bottles in the trash bag that were the same shape and size as Heet bottles.
We will consider the allegations in a different order than which they appear in the application and accompanying affidavit.
First, officers at the scene noticed a strong smell of ether. As correctly found by the district court, ether is a substance commonly used in the manufacture of methamphetamine. See State v. Blair, 31 Kan. App. 2d 202, 207-08, 62 P.3d 661 (2002). It is often derived from household items such as starter fluid. See State v. Gunn, 29 Kan. App. 2d 337, 338, 26 P.3d 710, rev. denied 272 Kan. 1421 (2001); State v. Bowles, 28 Kan. App. 2d 488, 490, 18 P.3d 250 (2001). Because ether has legitimate household purposes, and is not illegal to possess, it has been held that the smell of ether alone cannot establish probable cause. See Blair, 31 Kan. App. 2d at 208. It may be considered with other evidence, however, in the totality of the circumstances for determining whether probable cause exists. See United States v. Nation, 243 F.3d 467, 470 (8th Cir. 2001); Mahsman, 157 S.W.3d at 252. As the Nation court stated: “ ‘[I]nnocent behavior frequently will provide a showing of probable cause.’ ” 243 F.3d 470 (citing Gates, 462 U.S. at 243 n.13).
Second, Jager noticed yellow bottles in a trash bag that were the same shape and size as Heet bottles. As the district court correctly found, Heet — comprised of methanol — can be an ingredient in the manufacture of methamphetamine. See State v. LaMae, 268 Kan. 544, 547, 998 P.2d 106 (2000) (“ingredients [ephedrine or pseudoephedrine] are separated from the binder material in the [cold] tablets by adding a liquid solvent such as Naptha or methanol such as that found in Heet antifreeze”). Admittedly the bottles were not immediately identified with absolute certainty as Heet bottles. However, their likely identification by a law enforcement officer— who at virtually the identical location, i.e., the barn, hours earlier had noticed the strong smell of ether, another known ingredient of methamphetamine manufacturings — is a circumstance to be considered in the probable cause analysis. Cf. Nation, 243 F.3d at 469-70 (storage of certain legal items together, e.g., starter fluid [ether], coffee filters, and plastic and glass containers, raised sufficient suspicion of criminal activity to support a finding of probable cause).
Like starter fluid, Heet has uses besides methamphetamine manufacturing, i.e., its labeled and well-known purpose is to pre vent gas-line freeze in vehicles. Here, however, the viewing of the bottles in a trash bag — which suggests they had been used — occurred on an August day in Kansas. As a result, it is less likely they had been opened and used to prevent gas-line freeze and more likely used to manufacture methamphetamine. See Gates, 462 U.S. at 238 (“The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit . . . , there is a fair probability that contraband or evidence of a crime will be found in a particular place.”).
In sum, Jager s personal perceptions within hours of each other at the same place — observing used Heet bottles in August and smelling a strong odor of ether — create a significant degree of suspicion that methamphetamine was being manufactured at that location. See Gates, 462 U.S. at 243-44 n.13 (“In making a determination of probable cause, the relevant inquiry is not whether particular conduct is Innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts.”).
Third, a concerned citizen’s notice of a peculiar smell when the property residents were burning trash. The affidavit provided that “[h]e then became suspicious and started paying closer attention to the residence.” The affidavit concluded: “The concerned citizen also stated that several vehicles came and went from the residence, staying a short time.”
The two informants were unidentified. This is not fatal to the probable cause determination, however. As the Court stated in Gates, which involved an anonymous informant:
“[An] informant’s ‘veracity’ or ‘reliability’ and his ‘basis of knowledge’ . . . are better understood as relevant considerations in the totality-of-the-circumstances analysis that traditionally has guided probable cause determinations: a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability. [Citations omitted.]” (Emphasis added.) 462 U.S. at 233.
Accordingly, as our Court of Appeals interpreted in State v. Shively, 26 Kan. App. 2d 302, 306, 987 P.2d 1119 (1999), aff'd, 268 Kan. 589, 999 P.2d 259 (2000):
“When an affidavit is founded upon information from an unidentified informant, its validity is not controlled by the reliability of the unidentified informant. State v. Sidel, 16 Kan. App. 2d 686, 692, 827 P.2d 1215, rev. denied 250 Kan. 807 (1992). The probable cause determination must be supported by some indication that the informant’s information is accurate. Sidel, 16 Kan. App. 2d at 692. Therefore, the veracity and basis of knowledge of the [informant] must be considered as part of the substantial basis for finding probable cause.” (Emphasis added.)
The magistrate is allowed “to draw such reasonable inferences as he will from the material supplied to him by applicants for a warrant.” Gates, 462 U.S. at 240. The magistrate could have easily inferred that the citizen’s paying “attention to the residence” meant personal observation of the vehicles coming and going. Personally sensed information supports the “basis of knowledge” described in Gates. See Shively, 26 Kan. App. 2d at 307 (informant based his knowledge upon first-hand perception); State v. Rose, 8 Kan. App. 2d 659, 663, 665 P.2d 1111, rev. denied 234 Kan. 1077 (1983) (among other things, informant personally observed the contraband in house). Likewise, the concerned citizen’s paying “closer attention to the residence” could be inferred by the magistrate as an indication of the citizen’s personal awareness of the earlier peculiar smell of the trash.
The magistrate could have also reasonably inferred that the concerned citizen’s notice of a peculiar smell, albeit apparently of burning trash, was in some measure later corroborated by law enforcement’s strong smell of ether on the premises, which has a distinct, if not “peculiar” smell. Contrast Rose, 8 Kan. App. 2d at 663-64 (occurrence of prior criminal activity was verified by law enforcement officers, so this verification supplied an indicia of reliability to that informant’s tip) with Hicks, 282 Kan. at 615-16 (there is nothing in the affidavit that told the magistrate the police observed any activities that would corroborate the citizens’ complaints), and State v. Lum, 27 Kan. App. 2d 113, 120-21, 998 P.2d 137, rev. denied 269 Kan. 938 (2000) (affidavit contains nothing supporting the accuracy of the officer’s source or sources, nor is there showing of independent corroborating evidence to establish reliability).
Fourth, law enforcement corroboration of part of the concerned citizen’s stoiy — the peculiar smell — also suggests the reliability of die remainder of his personally sensed information, i.e., die observation of vehicles coming and going and staying for a short time at the residence. As the Court stated in Gates, 462 U.S. at 244-45:
“ ‘Because an informant is right about some things, he is more probably right about other facts,’ [citation omitted] . . . This may well not be the type of ‘reliability’ or ‘veracity’ necessary to satisfy some views of tire ‘veracity prong’ of Spinelli [v. United States, 393 U.S. 410 (1969)] but we think it suffices for tire practical, common-sense judgment called for in making a probable-cause determination. It is enough, for puiposes of assessing probable cause that ‘[c]orroboration through other sources of information reduced the chances of a reckless or prevaricating tale,’ thus providing ‘a substantial basis for crediting hearsay.’ [Citation omitted.]”
Moreover, the concerned citizen’s “paying closer attention” after the peculiar smell suggests increased reliability for the vehicle observations. And the level of traffic is considered a factor in the probable cause determination. Cf. State v. Norville, 23 S.W.3d 673, 683 (Mo. App. 2000) (unusually heavy traffic at the mobile home); State v. Meyers, 992 S.W.2d 246, 248 (Mo. App. 1999) (vehicles at the residence at all hours of the night). Short visits to a property are also a factor in the determination. See United States v. Hernandez Leon, 379 F.2d 1024, 1028 (8th Cir. 2004) (officer’s observation of short-term visitors a factor); United States v. Gibson, 928 F.2d 250, 253 (8th Cir 1991) (“nor were there very short visits characteristic of drug trafficking”); State v. Paige, 934 So. 2d 595, 600 (Fla. Dist. App. 2006) (report of short stays of vehicular traffic from a concerned citizen one factor).
Fifth, a concerned citizen’s notice of a van arriving at tire property, and the unloading of boxes from the van to the shed, cannot be reliably considered. Unlike the other unidentified concerned citizen, there is no corroboration or other suggestion of reliability.
We are mindful of the Supreme Court’s direction that a deficiency in either an informant’s (1) veracity or reliability or (2) his or her basis of knowledge may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability. See Gates, 462 U.S. at 233. We are also mindful of the Third Circuit Court of Appeals’ statement in Conley:
“The Supreme Court has directed that ‘although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.” (Emphasis added.) Conley, 4 F.3d at 1205 (citing United States v. Ventresca, 380 U.S. 102, 109, 13 L. Ed. 2d 684, 85 S. Ct. 741 [1965], quoted with approval in Gates, 462 U.S. at 237 n.10).
Accordingly, after looking at the totality of these circumstances presented to the magistrate, we hold that he had a substantial basis for concluding that a crime had been or was being committed, and there was a fair probability that contraband or evidence of a crime would be found in the places to be searched. Therefore, even absent evidence of the contents of the trash bag, the search warrant was valid. The district court was correct in denying the motion to suppress, albeit for a somewhat different reason. See State v. Bryant, 272 Kan. 1204, 1210, 38 P.3d 661 (2002) (trial court will not be reversed if it is right, albeit for the wrong reason).
Issue 2: The district court’s admission of hearsay did not violate Fisher’s right to confrontation under the Sixth Amendment to the United States Constitution.
Fisher next argues that the district court erred in admitting statements made by David Holden who did not testify at trial. He claims that his right to confrontation under the Sixth Amendment was denied, citing Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004). The State suggests that Fisher invited the error because he initiated the testimony, citing State v. Hebert, 277 Kan. 61, 78, 82 P.3d 470 (2004).
The Court of Appeals sharpened the focus by holding that Fisher waived his confrontation right by opening the door to otherwise inadmissible testimony, citing State v. Johnson, 258 Kan. 475, 481, 905 P.2d 94 (1995). As we agree with the Court of Appeals, our usual analysis of admissibility, e.g., relevance, is unnecessaiy.
While officers were at the Fisher residence, David Holden arrived with Fisher. Agent Smith interviewed Holden. At trial, Agent Smith testified about Holden’s statements. The court also admitted Holden’s written statement dated August 30, 2001. Holden was not present to testify.
At trial, a discussion of Holden was first initiated by defense counsel on cross-examination of Detective Jager:
“Q. [By defense counsel] Did you talk to Mr. Holden?
“A. [By Detective Jager] No, sir, I did not.
“Q. Did you receive information of what Mr. Holden told Agent Smith?
“A. I received a written statement from Agent Smith, yes, sir.
“Q. That night when Mr. Holden was there and gave that statement to Mr. Smith, was there something in that statement that Mr. Holden said that was obviously not true?
“A. Not to my knowledge, sir.
“Q. Do you have the statement?
“A. Yes, sir, I do.
“Q. So if Mr. Holden told the officer that Greg Fisher had ten grams and actually had two, that wouldn’t be true; would it?
“A. I don’t know if I can argue that, sir.
“Q. I’m just asking you that’s obviously what happened and I want to know if you considered that before you decided to target Mr. Fisher as the cook?
“A. I don’t quite understand your line of questioning, sir.
“Q. Sometime you came to the conclusion that Mr. Fisher was the cook?
“A. Yes, sir.
“Q. Was it something that Mr. Holden told you?
“A. No, sir.”
On defense counsel’s re-cross of Detective Jager, he further inquired about Holden’s statement:
“Q. County Attorney asked you if you found anything in the house that indicated somebody else might be living there, but did you learn that Mr. Holden had been living there for awhile?
“A. No, sir, I did not.
“Q. Mr. Holden gave a statement; right?
“A. Yes, sir.
“Q. In his statement, he stored some of his personal property in the garage; did he not?
“Mr. Wilkerson [State]: Your Honor, I’m going to object. Mr. Holden is not here.
“The COURT: Overruled.
“Q. Have you been able to locate the statement?
“A. Yes, sir, I have.
“Q. And in his statement he — he said he stored some things there?
“A. Yes, sir.
“Q. And he lived there in the past?
“A. Yes, sir. Not lived but stayed.
“Q. Does his statement admit that he’s used drugs and possessed drugs?
“A. I believe so. He stated that he consumed.”
During the State’s later direct examination of Agent Smith, the prosecutor questioned him regarding Holden’s statements. Over defense counsel’s objection, Holden’s written out-of-court statement was admitted in its entirety.
This record reveals that Fisher did indeed open the door to the evidence about Holden’s information. As the Court of Appeals pointed out, State v. Johnson controls:
“In State v. Johnson, 258 Kan. 475, the Kansas Supreme Court was presented with a somewhat similar factual situation. In Johnson, defense counsel, on cross-examination, questioned a witness regarding out-of-court statements made by a declarant who did not testify at trial. The purpose of tire questioning was to shift the focus from the defendant to the testifying witness as the accomplice to the crime. The Supreme Court held: “We have recognized that when a defendant opens an otherwise inadmissible area of evidence during the examination of witnesses, the prosecution may then present evidence in that formerly forbidden sphere. [Citations omitted.] By opening the door to otherwise inadmissible hearsay, a defendant waives the Sixth Amendment right to confrontation.' 258 Kan. at 481.” Fisher, slip op. at 13-14.
Although Crawford v. Washington postdates Johnson, since Crawford we have held that a defendant may forfeit his or her right to confrontation and waive any hearsay objections. See State v. Meeks, 277 Kan. 609, 614-16, 88 P.3d 789 (2004). Accordingly, we conclude that the district court did not err in admitting Holden’s statements.
Issue 3: Fishers convictions for possession of ephedrine and paraphernalia are not multiplicitous with his conviction for manufacture of methamphetamine
Finally, Fisher asserts that his convictions for manufacture of methamphetamine (K.S.A. 65-4159), possession of ephedrine (K.S.A. 65-7006), and possession of drug paraphernalia (K.S.A. 65-4152[a][3]) are multiplicitous. Specifically, he claims that tire latter two are lesser included offenses of manufacturing under K.S.A. 2006 Supp. 21-3107(d)(2). Because our analysis is guided by our recent decision in State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006), it is unnecessary to review the details of the parties’ arguments and the Court of Appeals’ approach to the multiplicity issue, all of which predated Schoonover. “[Wjhether convictions are multiplicitous is a question of law subject to unlimited review.” 281 Kan. at 462; State v. Stevens, 278 Kan. 441, 446, 101 P.3d 1190 (2004).
We have stated that multiplicity is the charging of a single offense in several counts of a complaint or information. State v. Kessler, 276 Kan. 202, 204, 73 P.3d 761 (2003). The principal danger of multiplicity is that it creates the potential for multiple punishments for a single offense. Multiple punishments for a single offense are prohibited by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and by §10 of the Kansas Constitution Bill of Rights. 276 Kan. at 205.
In Schoonover, we announced an analytical framework which applies when the issues arise from cumulative punishments imposed in one case. We held:
“In considering a double jeopardy issue, the overarching inquiiy is whether the convictions are for tire same offense. There are two components to this inquiry, both of which must be met for there to be a double jeopardy violation: (1) Do the convictions arise from the same conduct? and [if so] (2) By statutory definition are there two offenses or only one?” 281 Kan. at 496.
We elaborated on the first component:
“If the conduct is discrete, i.e., committed separately and severally, the convictions do not arise from the same offense and there is no double jeopardy violation. If tire charges arise from tire same act or transaction, the conduct is unitary and the second component must be analyzed to see if the convictions arise from the same offense.” 281 Kan. at 496.
There, we listed several factors to be considered in determining if conduct is unitary, i.e., if it is the same conduct. They include (1) whether the acts occur at or near the same time; (2) whether the acts occur at die 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 tire conduct. 281 Kan. at 497.
Under the first step of the double jeopardy analysis, we must determine whether Fisher’s convictions arise from the same con duct. In applying the factors identified in Schoonover, we observe that the acts upon which the complained-of offenses are based were discovered in one house by law enforcement during execution of a search warrant on one occasion. Additionally, there is no evidence in the record to suggest the presence of an intervening event in the production cycle or a fresh impulse motivating a new manufacturing process. See Schoonover, 281 Kan. at 499. We conclude that the conduct in the instant case was unitary, i.e., constituted one transaction.
Accordingly, we advance to the second component of the analysis, which requires us to determine whether, by statutory definition, there are multiple offenses or only one. Because the double jeopardy issue in the instant case arises from multiple convictions for violations of different statutes, the multiple description test is applied. Schoonover, 281 Kan. at 497. In Kansas, that test is the same-elements test. As we stated in Schoonover, “the test to determine whether charges in a complaint or information under different statutes are multiplicitous is whether each offense requires proof of an element not necessary to prove the other offense; if so, the charges stemming from a single act are not multiplicitous.” 281 Kan. at 495.
At the time the offenses were committed, K.S.A. 2001 Supp. 65-4159(a) governed the unlawful manufacture of methamphetamine. The statute stated in pertinent part: “Except as authorized by the uniform controlled substances act, it shall be unlawful for any person to manufacture any controlled substance or controlled substance analog.”
K.S.A. 2001 Supp. 65-7006(a) governed the unlawful possession of ephedrine or pseudoephedrine. The statute stated: “It shall be unlawful for any person to possess ephedrine, pseudoephedrine or phenylpropanolamine, or their salts, isomers or salts of isomers with intent to use the product as a precursor to any illegal substance.”
Finally, K.S.A. 2001 Supp. 65-4152(a)(3) governed the unlawful possession of drug paraphernalia. The statute stated in pertinent part: “No person shall use or possess with intent to use . . . any drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, sell or distribute a controlled substance in violation of the uniform controlled substances act.”
In Schoonover, this court addressed, and rejected, the identical multiplicity arguments advanced by Fisher concerning the identical statutory offenses.
For alleged multiplicity of manufacturing methamphetamine and or possessing ephedrine or pseudoephedrine, we stated:
“Manufacturing methamphetamine requires proof of manufacturing or the ability to manufacture, while possession of ephedrine or pseudoephedrine does not. Possession of ephedrine or pseudoephedrine requires proof of possession of that substance while manufacturing does not. Compare K.S.A. 65-4159 with K.S.A 65-7006(a). The elements differ; therefore, there is no double jeopardy violation.” 281 Kan. at 500-01.
For alleged multiplicity of manufacturing methamphetamine and possessing drug paraphernalia with intent to manufacture, we stated:
“A conviction for possession of drug paraphernalia shares a common element widr a conviction of manufacturing methamphetamine, i.e., die intent to manufacture. However, each offense proscribes odier, distinct conduct. Compare K.S.A. 65-4159 witii K.S.A. 65-4152. Therefore, die crimes are not multiplicitous and there is no double jeopardy violation. See Patten, 280 Kan. at 393.” 281 Kan. at 501.
More specifically, “[t]he crime of manufacture of methamphetamine requires proof of the manufacture of methamphetamine, which is not required in proving possession of drug paraphernalia. The crime of possession of drug paraphernalia requires proof of possession of drug paraphernalia, which is not required in proving manufacture of methamphetamine.” State v. Patten, 280 Kan. 385, 391, 122 P.3d 350 (2005).
The Court of Appeals, although holding Fisher's convictions were not multiplicitous, held that under State v. McAdam, 277 Kan. 136, 142-47, 83 P.3d 161 (2004) (person convicted of K.S.A. 65-4159[a] could be sentenced only under the lesser penalty of K.S.A. 65-4161[a]), State v. Barnes, 278 Kan. 121, 129, 92 P.3d 578 (2004) (McAdam rule applies to cases pending on direct appeal as of the date of McAdam decision), and State v. Campbell, 279 Kan. 1, 16-17, 106 P.3d 1129 (2005) (person convicted of K.S.A. 65-7006[a] could be sentenced only under the lesser penalty of K.S.A. 65-4152[a][3]), the sentences for unlawful manufacture of methamphetamine and possession of ephedrine should be vacated, and the matter should be remanded for resentencing consistent with McAdam and Campbell. The State does not oppose, and we agree.
The decision of the Court of Appeals affirming the district court in part is affirmed. The decision of the district court is affirmed in part, vacated in part, and remanded for resentencing as instructed in the opinion.
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The opinion of the court was delivered by
Fontron, J.:
This is an action by the State of Kansas to recover judgment for breach of an appearance bond, or recognizance, given to secure the appearance of Louis Jones, Jr. in the Reno County District Court on January 25, 1971, to stand trial on charges of aggravated robbery. Judgment was entered against the surety, Midland Insurance Company, for the face amount of the bond and that company has appealed. For convenience we shall refer to the parties as the state on the one hand and Midland, or defendant on the other.
Mr. Jones was originally scheduled for trial at 9:00 a. m., January 6, 1971, and a jury was present in court at that time. He did not show at that time, however, and the jury was dismissed. An appearance bond in the amount of $1000 was declared forfeited at that time. Thirty minutes thereafter the defendant showed up and explained his tardiness as having been caused by car trouble coming from Wichita. The trial judge, who may have had similar experiences, proved to be understanding and set the forfeiture aside. However, the bond was raised to $5000 and the case was reset for January 25, 1971.
The defendant failed to show up on January 25 and the trial court again declared a forfeiture and again excused the jury from further attendance. On the same date the state filed a motion for judgment and notice was given, addressed to Midland, that the motion would be heard at 9:00 a. m., February 12, 1971.
On the 10th day of February, 1971, Midland filed its motion to set aside the forfeiture pursuant to K. S. A. 1971 Supp. 22-2807 (2) alleging that, at its own expense, it had re-delivered the defendant to the sheriff of Reno County pursuant to K. S. A. 1971 Supp. 22-2808-2809 and that defendant’s absence did not occur with the surety’s knowledge, consent or connivance. Midland also offered to pay all actual costs suffered by reason of the defendant’s absence from court on the day appointed for his appearance.
Both motions were heard on February 12 — the state’s motion for judgment and Midland’s motion to set the forfeiture aside. No evidence was introduced by either protagonist but counsel for both apparently submitted oral argument. At the conclusion of the hearing the court overruled Midland’s motion to set the forfeiture aside and entered judgment in favor of the state.
We were advised upon oral argument of this appeal that Mr. Jones was subsequently convicted of the charge against him and the record indicates he was sentenced to the Kansas State Industrial Reformatory.
The present statute with respect to the forfeiture of an appearance bond is K. S. A. 1971 Supp. 22-2807. Paragraph (1) of this statute recites that if there is a breach of condition of an appearance bond the court in which the bond is deposited shall declare a forfeiture of the bail. Paragraph (2) provides that the court may direct that a forfeiture be set aside upon such conditions as it may impose, if it appears justice does not require enforcement of the forfeiture. Paragraph (3) provides, so far as material to this case, that where a forfeiture has not been set aside the court shall, on motion, enter judgment of default and execution may issue thereon; that by entering into the bond the obligors submit to the jurisdiction of any court having jurisdiction to enter default judgment and irrevocably appoint the clerk of that court as their agent upon whom papers affecting their liability may be served; that liability may be enforced on motion without the necessity of an independent action; that the motion and notice thereof may be served on the clerk of the court who shall forthwith mail copies to the obligors at their last known addresses; and that no default judgment shall be entered against the obligor until more than 10 days after notice is served as provided in this section. Subparagraph (4) provides that after entry of judgment the court may remit it in whole or in part under the conditions applying to the setting aside of forfeiture in paragraph (2) of this section.
This statute was enacted in 1970 as part of the new Code of Criminal Procedure and has not previously appeared before us for construction.
The defendant appears to contend that where the surety on an appearance bond has arrested and surrendered its principal to a custodial officer of the court at its own expense, as authorized in K. S. A. 1971 Supp. 22-2809, and has paid or offered to pay all costs incurred by the state resulting from the defendant’s nonappearance, that the surety is automatically entitled to be released from further liability on its undertaking and that he should be exonerated as provided by K. S. A. 1971 Supp. 22-2808. On the other hand the state maintains that before a forfeiture may be set aside and the surety exonerated, a satisfactory excuse must be presented for the principal’s failure to comply with the conditions of the bond.
As we view our recent statute, K. S. A. 1971 Supp. 22-2807, the question of whether or not the forfeiture of a bond should be set aside is a matter resting solely within the sound judicial discretion of the trial court. In this respect it differs from the former statute, K. S. A. 62-1221, which provided that at any time before final judgment the bail might surrender his principal in open court and upon paying all costs and presenting a satisfactory excuse for failure of his principal to comply with the conditions of the bond might then be discharged from further liability. Under the former statute, the surety was exonerated only if he presented a satisfactory excuse. (State v. Way, 76 Kan. 928, 937, 93 Pac. 159.) On the other hand, we upheld the order of the trial court setting aside a forfeiture upon payment of costs where a reasonable excuse was presented, and where the principal’s absence did not occur with the consent, knowledge or connivance of the surety and where the principal had been surrendered. (State v. Williford, 104 Kan. 221, 178 Pac. 612.)
We believe the question confronting us under the present statute is simply whether the trial court abused its discretion in refusing to set the order of forfeiture aside. The discretion to be exercised is a judicial one and is subject to review when exercised arbitrarily or unreasonably either for or against the surety. (State v. Wynne, 356 Mo. 1095, 204 S. W. 2d 927.)
Before addressing ourselves to the specific facts of this case a few observations of a general character may be helpful. The primary purpose of bail is not to beef up public revenues or to punish the bail, or surety. (State v. Wynne, supra.) Rather it is to permit a person accused of crime, but whose guilt has not been established, to remain at large pending trial while ensuring so far as possible, that he will be present in court to meet the charges directed against him. (In re Application of Shetsky for Return of Bail Money, 239 Minn. 463, 60 N. W. 2d 40.) This concept is expressed in United States v. Lee, 170 Fed. 613, 614:
“. . . The purpose of a recognizance is not to enrich the treasury, but to serve the convenience of the party accused but not convicted, without interfering with or defeating the administration of justice. . . .”
Upon entering into a recognizance the defendant, as principal, is in effect released to the surety and is so far placed in the hands of the latter that he may be taken into custody by the surety and surrendered to the court. (K. S. A. 1971 Supp. 22-2809; Craig v. Commonwealth, 228 Ky. 157, 155 S. W. 2d 768.) Thus justice is sought to be afforded both to the accused and to the state.
As a general rule a statute which authorizes the court to set a forfeiture aside or to remit a part or the whole of a penalty where the principal surrenders or is produced by the surety, entrusts the granting of relief to the sound discretion of the court. (Anno., 84 A. L. R., Bail — Forfeiture—Relief From, § lib., p. 424.) Such we believe to be the import of K. S. A. 1971 Supp. 22-2807 which follows exactly the wording of Rule 46 (f) (2), Federal Rules of Criminal Procedure. New federal cases have been found construing the federal rule in this regard. However, both United States v. Public Service Mututal Insurance Co., 282 F. 2d 771, and Carolina Cas. Ins. Co. v. U. S., 283 F. 2d 248, indicate that the matter of entering judgment lies within the sound discretion of the court. In the Carolina Casualty case the court said:
“If justice does not require the enforcement of a forfeiture it may be set aside or remitted. . . .” (p. 249.)
Matters which should be given consideration in exercising the discretion contemplated in 22-2807 (2) include the timeliness of the surety’s action in surrendering the principal; whether the prosecution has been placed at a disadvantage by reason of the default; whether there was connivance on the part of the surety contributing to default; and whether the principal’s default was with the surety’s knowledge and consent.
The state lays great emphasis on the failure of the surety to present a satisfactory excuse for the defendant’s failure to appear. But, as we have already pointed out, 22-2807 ( 2) does not require that sort of a showing. In this respect it is identical with Federal Rule 46 (/) (2). In 8 Am. Jur. 2d, Bail and Recognizance, § 170, p. 876, the text recites:
“The Federal Rules of Criminal Procedure changed the rule that a District Court had no power to remit any part of the forfeiture of a bail bond where the default on the part of a defendant was willful, and granted such court the right to set aside a forfeiture if it appeared that justice will not require enforcement.”
See, also, United States v. Davis, 202 F. 2d 621, 624; 3 Wright, Federal Practice and Procedure, Criminal, § 777, Release on Bail— Remission of Forfeiture, pp. 293-296.
We believe it important that an additional consideration be kept in mind when application is made to set aside a forfeiture prior to judgment. At least one of the purposes which may be served by a provision permitting a forfeiture to be set aside must surely be to encourage the surety to locate, arrest and bring a defaulting defendant to the bar of justice. There would be small incentive for the surety to run down and return its principal at its own expense if no part of the penalty of the bond could be remitted under equitable conditions. (Hicks v. Commonwealth, 265 Ky. 123, 95 S. W. 2d 1076; Fortney v. Commonwealth, 140 Ky. 545, 131 S. W. 383.)
Turning to the case at hand, the appearance bond was declared forfeited January 25, 1971, and the defendant was surrendered to the sheriff just four days later, on January 29, 1971. No disadvantage can be said to have resulted to the prosecution inasmuch as the defendant was convicted and delivered to the Kansas State Industrial Reformatory. Whatever expense the state may have incurred as a result of the defendant’s default are not disclosed in the record, hut the surety has proffered payment of the costs which the state had incurred, among which we assume Midland intended to include such matters as added jury expense, witness fees and sheriff’s costs. In its motion to set aside the forfeiture, the surety alleged that the defendant’s absence or default did not occur with its knowledge, consent or connivance. We do not find this allegation disputed anywhere in the record, nor did the state attempt any denial when it argued the case before us. We therefore accept the assertion at face value.
We have not overlooked the rule that an appellate court should not substitute its discretion for that of the trial court but that its function is to determine whether discretion has been abused. It is in this context that we have reluctantly reached the conclusion that the trial court failed to exercise its discretion judiciously and wisely.
The sole reason offered by the court in overruling Midland’s motion to set the forfeiture aside was the terse statement that on two occasions the defendant failed to appear and on both occasions counsel appeared. Under the confronting facts and circumstances of this case, that reason in itself can hardly be said to comprise a judicious approach to the problem, especially since the defendant’s first default was of 30 minutes duration and was attributable to car trouble — an excuse which the court accepted.
We believe it is significant that under the terms of 22-2807 ( 3) no judgment by default may be entered against the surety until more than 10 days after notice has been served as provided by the act. This provision is not found in Federal Rule 46 or in many state statutes bearing on the subject. It must have been included in our statute for a purpose. We believe the reason for its inclusion was to give the surety an opportunity to locate and surrender a defaulting principal within the 10 day period and to request that the forfeiture be set aside on terms which are just and fair. This construction accords with what we deem to be the general tenor of the act: Before judgment, a forfeiture may be set aside upon equitable conditions where justice does not require its enforcement and even after judgment is entered a remission in whole or in part may be granted on like conditions.
The judgment below is set aside with directions that the forfeiture be set aside upon such equitable terms as the court shall impose, agreeably to the views expressed in this opinion. | [
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The opinion of the court was delivered by
Fatzer, C. J.:
This was an action for possession of a quarter section of farmland in Allen County. The appeal is from the judgment of the district court placing the plaintiff, Gordon Conger, in possession of the real estate.
The defendant, Ray Conger, is an uncle of the plaintiff, and has been in possession of the quarter section since March 14, 1958, under the provisions of the Last Will and Testament of his father, J. I. Conger, which was admitted to probate in Allen County on October 26, 1956.
Recause the precise wording of the Will of J. I. Conger is one of the controlling factors, the part of the Will relating to the farm in question is set out:
“2. The Southwest Quarter of Section 5, Township 25 South, Range 18, East, in Allen County, Kansas, which is my home, I hereby give, devise and bequeath to my son, Ray Conger, for the term of his natural life, and then to my grandson, Gordon Conger, for the term of his natural life, with remainder in fee simple to the son or sons of Gordon Conger, who survive him, and, if none, then to my grandson, David Conger, for the term of his natural life, with remainder in fee simple to the son or sons of David Conger that are living at the death of David Conger.
“Each life tenant while in possession of said real estate as life tenant, shall pay the taxes assessed on said land, as the same become due and payable, keep the improvements thereon insured for their reasonable value against loss or damage from fire or windstorm, for the benefit of such life tenant and the other parties herein named to whom an interest or estate is devised in said real estate, and keep the buildings thereon in reasonable repair. Should he fail or neglect to pay the taxes, keep up the insurance or keep the buildings in repair as herein provided, then his estate and interest therein shall terminate on such default.” (Emphasis supplied.)
The issues were properly joined by the pleadings. The plaintiff alleged in substance the life tenancy of Ray Conger had terminated by reason of his failure and neglect to keep the improvements insured and the buildings in reasonable repair. The defendant denied the plaintiff’s allegations and affirmatively alleged equitable considerations to the effect that if he was in default of any of the obligations required of him under the Will of J. I. Conger, they were not of such major nature as to terminate his estate, and that he stood ready to correct the same forthwith.
The case was tried to the district court, and the parties introduced their evidence in full. Following the trial, each party submitted requested findings of fact and conclusions of law. The district court visited the premises and viewed the buddings, and then made its own findings of fact and conclusions of law, and those pertinent to this controversy are quoted:
“2: The buildings on the farm at the death of the testator are described as follows:
“A one story frame dwelling house, 38' x30', which was moved to the premises in the late 1940’s as an old two room house over which the testator built a roof and added additional rooms.
“Frame bam with hayloft and metal roof 80'x40', which building was on the premises in 1917 and was rebuilt by testator in 1924.
“Metal one car garage and lean-to, lean-to being added in 1951.
“Northeast granary with tin roof, 12' x 12', which was an old horse shed.
“Henhouse, 12' x 14' built prior to 1917.
“Storage building, 10' x 10'.
“West granary, 16' x 16' a used building bought by the testator and moved to the premises prior to his death.
“Wellhouse building 3' x 3' x 3'.
“Granary and machine shed 40' x 58', which consisted of the building which was erected in the 1930’s with a lean-to added in the late 1940’s.
“All of said bruldings are of frame construction except the metal garage and all of said buildings are presently on said premises with the exception of the granary and machine shed which was destroyed by fire in April 1961.
“3. The insurance being carried by the decedent at the time of his death was transferred over to the defendant at the time he entered upon his life tenancy of the premises. The evidence does not disclose which of said buildings was insured by the decedent at the time of his death, nor the amount of insurance carried on each building. Insurance was carried by the defendant on certain of the buildings from the aforesaid time to July 25, 1960 at which time such policy was cancelled by the carrier by reason of non-occupancy of the premises. The defendant obtained further insurance on said premises about two months thereafter, and this coverage was cancelled in February 1961. The premises remained uninsured from that time until May 5, 1961. There has been insurance coverage on the house, barn and henhouse commencing May 6, 1967 down to the present. The policy issued May 20, 1961 for five years covered in addition to the house, bam and hen-house, the metal garage and a frame granary, the latter item carrying an amount of $150.00. Each of the polices placed in evidence names Ray Conger as the only insured. None of the policies discloses his interest as being that of a life tenant.
“4. By way of repairs to the buildings during his tenancy, the defendant has attached new metal over a portion of the wooden exterior of the large bam; he has attached metal to the exterior of the north side of the bam; he installed some strengthening in the interior of the bam; he did some work on the bam foundation and in 1967 he made repairs to the bam roof. Little has been done by way of repair on the house except that it was papered and painted in 1958 and again in 1967; also defendant did make some improvements in the bathroom and replaced the stool, but the various fixtures appear to be nonserviceable at this time. The house is hardly habitable and it appears that the roof leaks substantially. There were no other significant repairs testified to by defendant or his witnesses.
“5. In the main all of the buildings are old and have suffered many years of wear, tear and weathering. However, repairs made over the years by the defendant were minimal at most and, except for the house and bam, few have been repaired at all. The granary and machine shed were destroyed by fire without fault on the part of defendant; this combination building has not been replaced.
“6. The defendant has paid the annual taxes which were assessed against said real estate.”
“Conclusions of Law
“1. Whether through omission, mistake or inadvertence, the insurance coverage provided by the defendant has never covered the insurable interest of the succeeding life tenant and remaindermen. The policies offered in evidence did and do not cover several of the improvements, which by reason of obsolescence may not now be insurable. There is no evidence defendant ever attempted to provide insurance coverage for such other improvements.
“2. Such repair work as defendant has done was confined to the large bam and the house. The will requires reasonable repairs to the buildings, not just the bam and house. Repair of roofs and doors and covering holes in the siding would seem the most ordinary of repairs that might be performed by a life tenant. The smaller buildings have been left to weather and rot, with scarcely any repair work over the past thirteen years. The evidence is, however, that the buildings are in substantially the same state of repair as they were at decedent’s death except for ordinary wear, tear and obsolesence with which defendant cannot be charged; but the thrust of this evidence goes to general appearance rather than specifics and particularly was not helpful as to roof conditions and the state of repair of the house.
“3. It might be more economically sound under present conditions to raze nearly all of the improvements but the decedent omitted any such grant of power to the defendant or succeeding life tenant. His belief must have been that the improvements were in such shape and state of repair that with ordinary repairs during their tenancy by one of two life tenants, the improvements would be utilitarian when the remaindermen came into possession. He so provided in his will.
“4. There seems to be no Kansas cases specifically in point. The conditions placed upon the tenancy of this defendant constitute conditional limitations upon luis estate. See 28 Am. Jur. 2d, 256 (Par. 142). The life estate of the defendant is circumscribed by limitations in that it terminates: (1) Upon his failure or neglect to pay the taxes as the same become due and payable, or (2) upon his failure or neglect to keep the buildings thereon in reasonable repair, or (3) upon his failure or neglect to keep the improvements insured for their reasonable value against loss or damage from fire or windstorm, for the benefit of such life tenant and other parties therein named to whom an interest or estate is devised in said real estate. The first tenancy terminates upon the failure of the first tenant to do any one or more of those three conditions. Having failed to keep the buildings in reasonable repair, and having failed or neglected to provide insurance which conforms to the requirements set forth by the testator, the life estate of this defendant is terminated.
“5. The holding of Seay, et al., v. Seay, et al., 384 S. W. 2d, 466, is precedent for this holding. It may be argued that the Seay case differs from the one at bar because in that set of facts, the life tenant had not paid the taxes. It is conceded that the payment of annual taxes may be much more important to a succeeding life tenant and remaindermen than keeping insurance in force and making repairs. But, the will of J. I. Conger does not make such a distinction. As in the Seay case, it appears to make no difference whether the provisions in the will requiring the payment of taxes and insurance, and the performance of repairs is a condition subsequent or whether it is a limitation. As in the Seay case, he who has the next expectant interest has taken action to have that interest vested in him.
“6. The life estate of the defendant, Ray Conger, has terminated because of his failure to keep the buildings in reasonable repair and his failure to keep the buildings insured for the benefit of all persons having an interest therein under the Will of J. I. Conger.
“7. The plaintiff, being the next succeeding life tenant under the Will of J. I. Conger, is entitled to possession of the property and judgment will be entered placing him in possession of the property.
“8. Although it may be gratuitous to so comment, the remaindermen may expect of the plaintiff as life tenant, a standard of observance of the conditions of the will to the extent this plaintiff has demanded of the defendant.
“Attorneys for the plaintiff will prepare a journal entry for signature by defendant’s attorneys and presentation to the Court. (Filed April 27, 1970.)”
The appellant asserts three grounds for error. The first two go to the sufficiency of the evidence in support of the district court’s findings that Ray Conger did not substantially comply with the obligation to keep the improvements on the property insured for the benefit of tihe “life tenant and the other parties therein named to whom an interest or estate is devised in said real estate,” and did not substantially comply with the duty to “keep the buildings thereon in reasonable repair” as required by tihe Will of J. I. Conger. The last point relied upon is that the district court erred in disregarding equitable consideration in that it should have provided the appellant reasonable opportunity to make good the alleged defaults.
This court has reviewed the record in this case and finds that the findings of fact of the district court are amply supported; therefore, under the facts and circumstances, the findings of fact will not be set aside as not being supported by substantial competent evidence. (Muntzert v. A. B. C. Drug Co., 206 Kan. 331, 478 P. 2d 198; Huxol v. Nickell, 206 Kan. 102, 476 P. 2d 606; Schmidt v. Jensen Motors, Inc., 208 Kan. 182, 490 P. 2d 383.) The first two contentions of the appellant are without merit.
With regard to the question of whether the appellant is entitled to some equitable considerations in that he should be provided an opportunity to ameliorate the breach of duty that occasioned this lawsuit, it must be pointed out that this court does not rewrite instruments, nor does it construct by inference an intention of the testator that is not there. The right to make a will necessarily includes the right to make it according to the wishes and desires of the testator. Further, where the court has analyzed an entire in strument and the intention of the testator is clear and unambiguous, it is of no consequence that this court, a jury, the parties in interest, or anyone else might have done differently. In short, this court will construe wills where ambiguous; however, it will not substitute its judgment for that of the testator unequivocally expressed. (Ginter v. Ginter, 79 Kan. 721, 101 Pac. 634; In re Estate of Graves, 203 Kan. 762, 457 P. 2d 71.)
The devise in question is as unambiguous as any instrument might be. It states that upon the neglect or failure of the life tenant to perform the expressed duties, the estate terminates upon such default. It does not say that the estate would terminate upon re-entry or any other language that would indicate the establishment of a condition subsequent with right of re-entry.
We conclude that the estate in question was of special limitation in that, by its terms, it terminates automatically if a specified event occurs before the time at which the estate would otherwise terminate. Further, the estate created is one of conditional limitation in that the estate is determined by the mere happening of the event by which the limitation is measured and the estate passes to the person having the next expectant interest, without re-entry or claim. (Tiffany, Outlines of Real Property, §§ 63, 117; 1 American Law of Property, § 4.53-58; 31 C. J. S., Estates, § 120; 28 Am. Jur. 2d, Estates, § 142; Seay v. Seay, 384 S. W. 2d 466 [Ark.] Bridgforth v. Gray, 222 So. 2d 670 [Miss.].)
There is a fundamental distinction between an estate on condition and one on special limitation, in that, while in the former the words which provide for the termination of the estate on a contingency are not regarded as a part of the original limitation of the estate, but provide for the cutting off of the estate before its proper termination, and in the latter the words of contingency are regarded as part of the limitation itself so as to not cut off an estate previously limited, but merely naming an alternative limit to the duration of the estate. There are important practical results of the difference between an estate on condition and one of special limitation, as well. In the case of a special limitation, the contingency is a proper termination of the estate, and after the contingency has been occasioned, no estate can remain in the grantee or devisee; as a consequence, without re-entry or an equivalent act, the right of possession immediately vests in the grantor or the next succeeding person having the right to possession. Further, if the estate was one of condition, the standing of a transferee of the reversion, or a remainderman, would permit no right to take advantage of the estate by such condition, while on special limitation, the transferee or remainderman has always been entitled to derive advantage from the termination of an estate by such limitation. (Tiffany, The Law of Real Property, § 217 [3rd ed. 1939].)
The real distinction, however, between a condition subsequent and a conditional limitation is that in the former the estate is voidable upon the election of the person in whose favor the condition is imposed, while in the latter the estate is void upon the occurrence of the event that would terminate the estate. (Kales Estates, Future Interests, §243 [2d ed. 1920].) Therefore, while the appellant has presented a veiy ingenious and viable argument in this court that the estate in question was one of condition subsequent rather than conditional limitation, the fact remains that the appellee, by commencing this action to secure forfeiture of the estate, makes a discussion of the distinctions merely academic. Assuming, arguendo, that the estate created by the devise was one of condition subsequent and voidable at the election of the appellee, then, by seeking to reenter and take possession by the affirmative act of commencing the case at bar, the estate would have become void by that election of the appellee. That rule was recognized in Seay v. Seay, supra, wherein the court stated:
“In the case at bar it makes no difference whether the provision in the deed requiring the life tenant to pay the taxes and insurance premiums is a condition subsequent, in which event the next taker would have to take affirmative action to terminate the life estate, or whether it is a limitation, in which case the life tenancy expires ipso facto upon the failure of the life tenant to comply with the provision of the limitation. This is true because, in the case at bar, those who have the next expectant interest have taken action to have the fee vested in them.” (pp. 468, 469.)
The appellant cites numerous cases wherein equitable considerations were relevant to the cancellation of oil and gas leases for breach of the implied covenant to develop. (Howerton v. Gas Co., 82 Kan. 367, 108 Pac. 813; Alford v. Dennis, 102 Kan. 403, 170 Pac. 1005; Harris v. Morris Plan Co., 144 Kan. 501, 61 P. 2d 901.) However, this court finds no merit in the argument that an implied covenant in a lease is similar to an expressed condition in a will. As we stated above, where the testator has spoken in unambiguous terms, this court is without the authority to revise that intention.
As the life estate was to terminate upon the happening of the events in question, this court may not now determine that the appellant is entitled to equitable considerations in the absence of some intention of the testator to that effect.
The judgment is affirmed. | [
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|
The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in a criminal action by the defendant from a conviction in the district court of Sedgwick County, Kansas, of the crime of procuring an abortion or miscarriage in violation of K. S. A. 21-437.
Trial errors are asserted for reversal on appeal.
On March 3, 1969, Adelheid M. Jackson had reason to believe she was pregnant and consulted Dr. George B. Howell. Dr. Howell determined that Mrs. Jackson was six to eight weeks pregnant and was in good general health. Dr. Howell testified there was no evidence that an abortion was required to preserve the life of Mrs. Jackson.
On March 10, 1969, Mrs. Jackson, in the company of a Mr. Marion E. Berry, went to El Dorado and called the telephone number of a person she believed to be a doctor, which had been supplied to her by a friend. As a result of the ensuing conversation a meeting was arranged at Mr. Berry’s home at 418 New York, Wichita, Sedgwick County, Kansas. The appointment was kept at 10:30 a. m. on the 11th day of March by the defendant, a once, but not then, licensed chiropractor.
Mr. Darling entered the residence, introduced himself, and asked Mrs. Jackson if she wanted to go through with the abortion. She replied in the affirmative. After the price of $400 was agreed upon, Mr. Darling returned to his car and came back with his equipment, an electronic machine.
Thereupon Mrs. Jackson lay down on the bed and Mr. Darling set up his machine. He caused two leads from the machine to be placed in contact with Mrs. Jackson. A needle-like lead was inserted in her body, and a pad connected to the other lead was placed on her abdomen. He then set the machine and told her to turn it up herself as high as she could take it. After a period of time elapsed the defendant turned down the machine and removed the leads from Mrs. Jackson’s body. While the machine was on she had a reaction, the operation of the machine caused her pain.
Mr. Darling then instructed Mrs. Jackson to obtain some castor oil and pills mikrin (phonetically) to help loosen the fetus. She did obtain these and take them under defendant’s instructions. The defendant left as soon as Mr. Berry had paid him the $400.
That night and the next day Mrs. Jackson took the castor oil and pills as directed. She also took some tranquilizers (which she had previously obtained from a Dr. Clark at St. Francis Hospital) and some aspirin for the pain.
On the 12th day of March, 1969, she began to react to the overdose of drugs and was then taken to the emergency room at St. Francis Hospital in Wichita. There she was treated for the overdose by Dr. Daniels. Dr. Daniels also examined and photographed what he termed electrical bums on Mrs. Jackson’s abdomen. In Dr. Daniel’s expert opinion the electrical burns and a watery substance indicated an impending abortion caused by a diathermic machine.
After three days, Dr. Clark released Mrs. Jackson from St. Francis Hospital as there was nothing he could do.
On the 18th day of March, 1969, Mrs. Jackson was miscarrying and returned to the hospital under Dr. Howell’s care. She remained in the hospital four days during which time she had an operation commonly termed a “D and C,” and blood transfusions.
The appellant was charged with violation of K. S. A. 21-437 in that he did on the 11th day of March, 1969, unlawfully and will fully administer and employ on a pregnant woman, Adelheid M. Jackson, a metallic instrument and an electronic device, with the intent in him to procure the abortion or miscarriage of Mrs. Jackson, the same not having been necessary to preserve her life.
The trial court overruled a number of motions asserted by the appellant in the trial of the action to challenge the sufficiency of the evidence to prove the elements of the crime charged.
The appellant argues the evidence is conclusive that he did not administer any drugs, medicine or substance to Mrs. Jackson; that according to her testimony she procured the pills from Dr. Clark and obtained the castor oil herself; and that she took both the pills and the castor oil herself. The appellant argues if Mrs. Jackson were believed, the most he did was to tell her that it would assist in getting the fetus loose, and this, it is contended, would not amount to administering drugs or medicine. It is the appellant’s theory that the crime here charged is a misdemeanor and that there is no such thing as an accessory principal in a misdemeanor case; that any evidence which could sustain a conviction must be evidence that the appellant was actually involved with overt acts in the crime charged, citing K. S. A. 21-105 and 21-106.
The appellant’s theory is that if he did any act which could support his conviction it must be based upon his activity with the machine. It is argued since there is no accessory principal in a misdemeanor case the mere fact that the machine was his or that he brought it to the house where it was used, without more, would not be sufficient to establish that he employed or used an instrument upon Mrs. Jackson.
We fail to see merit in the appellant’s argument. The facts heretofore related clearly put the appellant within the requirement of the law that he administer drugs or use an instrument on a pregnant woman to cause an abortion. Here the electronic device was set up by the appellant, placed in position and operated strictly under his supervision and in accordance with his directions. While the precise point concerning the medicine and drugs has not been touched upon in our cases, other states with similar laws have held that prescribing drugs is administering them for purposes of the statute.
In Estep v. State, 183 Tenn. 325, 192 S. W. 2d 706, the Supreme Court of Tennessee held that where the defendant, a naturopathic physician, who professionally prescribed toxic drugs was guilty of “administering” such drugs in violation of a statute defining a misdemeanor.
In Seifert v. State, 160 Ind. 464, 67 N. E. 100, the defendant procured an instrument for a woman, and advised and directed her to use it upon herself to produce a criminal abortion. The woman pursuant to such advice and directions used such instrument for such purpose in the absence of the defendant, thereby causing her to miscarry and die. In the opinion the court said:
“Assuming, without deciding, that it was not the purpose of the legislature, in the enactment of § 1857 Bums 1901, entirely to blot out the distinction between principals and accessories, we think that it may still be affirmed that appellant was properly charged as a principal. While the principal in the commission of a felony must be actually or constructively present at the time of its commission (1 Bishop, Crim. Law (8th ed.), §648; McClain, Crim. Law, § 204), yet a person who causes such a crime to be committed through an innocent agent is deemed constructively present. McClain, Crim. Law, §§ 187, 207; 1 Bishop Crim. Law (8th ed.), §§648, 651; Commonwealth v. Hill, 11 Mass. 136; Gregory v. State, 26 Ohio St. 510, 20 Am. Rep. 774. This fiction of the constructive presence of the real instigator and promoter of the crime is indulged in a case where an innocent agent commits the act, because there would otherwise be no principal. This being the reason for the doctrine, it is evident that the test as to whether the former is a principal or an accessory does not depend upon whether the agent is morally innocent, but upon whether he is criminally responsible for the particular crime charged. As said by Mr. Bishop: ‘Since there must always be a principal, one is such who does the criminal thing through an innocent agent while personally absent. For example, when a dose of poison, or an animate object like a human being, with or without general accountability, but not criminal in the particular instance, inflicts death or other injury in the absence of him whose will set the force in motion, there being no one but the latter whom the law can punish, it of necessity fixes upon him as the doer.’ 1 Bishop, Crim. Law (8th ed.), §651.” (pp. 465, 466.)
We regard die foregoing law to be persuasive. Here the appellant was present while the electronic device was being used and he was the doer of the unlawful acts.
The evidence was sufficient to show a causal relation between the application of the electronic device to Mrs. Jackson and the administration of drugs to her by the appellant and the resultant abortion to sustain a conviction.
The appellant contends there was no evidence that the abortion was not necessary to save the life of the mother.
It is essential for the state to allege in the information and to negative the exception stated in the statute. That is, the intent to procure an abortion would not be a criminal offense if it were necessary to preserve the life of such woman. In State v. Jamieson, 206 Kan. 491, 480 P. 2d 87, the court held in Syllabus ¶[ 3:
“An information attempting to charge the offense of abortion as defined by K. S. A. 21-437 is examined and found to be fatally defective for failure to negative the exception— unless the same shall have been necessary to preserve the life of such women.’”
Dr. Howell testified he had examined Mrs. Jackson on March 3, 1969, and found no evidence, in his professional opinion, that an abortion was indicated in this case to preserve the life of the patient. This evidence is clearly sufficient to sustain a finding by the jury that the abortion was not necessary to preserve the life of the mother.
Frederick E. Strum testified he was an investigator for the state of Kansas and assigned to the State Board of Healing Arts; that he was acquainted with the appellant and on the 16th day of October, 1967, personally served revocation papers on Dr. Darling, revoking his license as a chiropractor. His license was revoked because the appellant had previously been convicted of performing an illegal abortion. The appellant’s objection to this testimony was overruled.
This evidence showed the appellant was not qualified as a medical doctor to make a determination concerning the necessity for the abortion.
The evidence presented by the state was sufficient to prove all elements of the crime charged. Therefore, the trial court did not err in overruling the appellant’s motion for discharge, and other motions lodged by the appellant to test the sufficiency of the evidence were properly overruled.
On appeal from conviction in a criminal action, the testimony is to be viewed in die light most favorable to the state, and the verdict will not be disturbed if there was substantial evidence upon which the jury could have based its verdict. (State v. Davis, 106 Kan. 527, 188 Pac. 231; and State v. Thomas, 155 Kan. 374, 125 P. 2d 375.)
The appellant next specifies that the trial court erred in giving instruction No. 7 which reads:
“A person is presumed to intend the natural and probable consequence of his voluntary and deliberate act, and if the commission of an unlawful act is proved, it will be presumed that such act was done with criminal intent.
“This presumption of law will always prevail unless, after a consideration of all the evidence bearing upon the point, you have a reasonable doubt of the existence of such intent.”
The appellant objected to this instruction on the ground that it was inflammatory and prejudicial and that the evidence failed to show the subsequent medical complications were a natural and probable consequence of any voluntary act of the appellant.
On appeal the appellant argues the instruction shifts the burden of proof — an entirely different objection.
Issues not raised or determined in the trial court will not be considered on appeal. (Williams v. Crouse, 193 Kan. 526, 394 P. 2d 96; State v. Baker, 197 Kan. 660, 421 P. 2d 16; and Mize v. State, 199 Kan. 666, 433 P. 2d 397.)
The foregoing instruction was approved in State v. Sweetin, 134 Kan. 663, 8 P. 2d 397; and State v. Hathaway, 143 Kan. 605, 56 P. 2d 89, and authorities cited in these decisions.
The appellant next contends the trial court erred in refusing to permit him to propound certain questions to the veniremen upon voir dire examination.
At the time the appellant propounded questions to one of the jurymen the trial court had already sustained the appellant’s objection to the state’s voir dire question: “Okay. Have you formed an opinion as to whether an abortion is morally right or morally wrong?”
Now the appellant, in what purports to be an inconsistent position, contends the trial court erred in refusing to permit his counsel to question the veniremen as to whether or not they had “any moral scruples or any moral compunction” concerning abortions, and “whether or not [any were] members of any organization favoring abortions.”
On numerous occasions this court has commented on the trial court’s discretionary power in relation to voir dire examinations. In Mathena v. Burchett, 189 Kan. 350, 369 P. 2d 487, this court said:
“. . . The examination is conducted under the supervision and direction of the trial court, and the nature and extent of the examination and what questions may or may not be answered must necessarily be left largely to the sound discretion of the trial court, the exercise of which will not be interfered with unless clearly abused. . . (p.355.)
(See, also, Bartlett v. Heersche, 204 Kan. 392, 400, 462 P. 2d 763; and Swift v. Platte, 68 Kan. 1, 72 Pac. 271, opinion on rehearing 68 Kan. 10, 74 Pac. 635.)
In 47 Am. Jur. 2d, § 195, it is said:
“. . . It has been said that the ultimate function of voir dire is to explore the nuances of conscience to determine whether a prospective juror is able to participate fairly in the deliberations on the issue of guilt, confining his judgment to the facts as presented, and that the overall purpose of voir dire examination of jurors is to determine the real state of their minds so that a fair and impartial jury can be chosen. . . .” (p. 786.)
In 47 Am. Jur. 2d, § 201, it is said:
“An examination of a prospective juror on his voir dire is proper so long as it is conducted strictly within the right to discover the state of mind of the juror with respect to the matter in hand or any collateral matter reasonably liable to unduly influence him, and questions which go primarily to the ascertainment of any probable bias or ground of incompetency, as a basis of a challenge for cause, or possibly of a peremptory challenge, are permissible. . . .” (p. 790.)
In 47 Am. Jur. 2d, § 202, it is said:
“Most authorities take the position that the defendant in a criminal prosecution is entitled to make reasonable and pertinent inquiries of a juror on his vior dire, so that he may exercise intelligently and wisely his right of peremptory challenge. . . .” (p. 792.)
The moral attitude of the veniremen as to the desirability or undesirability of abortions is immaterial. However, an attempt by counsel for the defendant in a criminal action to discover if there is any bias or prejudice against one charged with abortion on the jury panel should not be unduly restricted.
While the trial court perhaps should have granted the appellant more leniency in this respect, on the record presented we cannot say the court abused the exercise of its power of discretion in limiting the inquiry by the appellant. Here all veniremen were questioned on whether they had any preconceived ideas of what an abortion law should be like, or whether they would have any difficulty applying the law as given to them by the judge. All of the jurors answered these questions in the negative. Whether or not a juror can consider the case on the law as it exists without bias or prejudice is the material point here under attack.
Considering the record on voir dire examination we cannot say the appellant was prejudiced by the trial court in curtailing voir dire examination of the jurors.
The appellant contends the trial court erred in restricting the cross-examination of Mrs. Jackson, the primary witness for the state in this case.
Counsel for the appellant attempted to propound questions to Mrs. Jackson concerning the circumstances of her pregnancy. An attempt was made to determine who the putative father was and the marital status of Mrs. Jackson.
On direct examination Mrs. Jackson testified she was pregnant at the time the alleged acts were committed. Obviously an illegal abortion cannot be committed unless the woman is pregnant, and the state was required to prove this fact as an element of the crime. The appellant takes the position that such testimony by Mrs. Jackson on direct examination opened the question for inquiry on cross-examination as to the circumstances which led to her pregnancy, contending the appellant was entitled to fully develop the issue. The appellant further contends the questions were designed to ascertain whether or not there was any bias or prejudice on the part of the witness.
We think the circumstances of the pregnancy and the witness’ background are clearly not elements of the crime, and objections to that line of questioning on cross-examination were properly sustained.
Whether it was proper to attack the credibility of the witness is controlled by K. S. A. 60-422 (c). Here the appellant intended to inquire into the premarital sexual relations and the illegitimacy of the aborted child in order to attack the witness’ credibility. Counsel clearly intended to go into her background to show her character traits which it was felt would impinge on her credibility and attack her veracity.
Under 60-422 (c), supra, evidence of traits of character other than honesty or veracity or their opposites, shall be inadmissible. Sexual immorality has nothing to do with the veracity of a witness and is clearly one of the subjects of inquiry prohibited by the statute.
In Craft v. State, 3 Kan. 450, it was said the fact that the state’s chief witness was a prostitute does not mean that she will not tell the truth. The court in State, ex rel., v. Lyons, 107 Kan. 312, 191 Pac. 281, held in a bastardy case that loss of virtue does not imply a lack of truthfulness.
Undoubtedly the theory expressed in 60-422 (c), supra, is that juries should not be allowed to be swayed by inflammatory evidence that a person has undesirable character traits such as sexual immorality, when these traits have no effect on the veracity of the witness. The right to a fair trial does not include the right to an unfair advantage by introducing irrelevant evidence that may inflame a juror against the witness.
The trial court did not err in its refusal to permit the appellant to cross-examine Mrs. Jackson on the circumstances of her pregnancy.
The appellant specifies as error the admission of state’s exhibits 3 and 4 into evidence. These were copies of two informations and two journal entries disclosing two prior convictions of the appellant for illegal abortions in the district court of Butler County, Kansas.
This specification was argued by the appellant on his motion for a new trial in the trial court, but has not been briefed on appeal. It must therefore be deemed to have been abandoned. Error in the trial court is never presumed on appeal, and the appellant has the burden to establish affirmatively that error has been committed. (Jocich v. Greyhound Cab Co., 188 Kan. 268, 362 P. 2d 27; American Fence Co. v. Gestes, 190 Kan. 393, 375 P. 2d 775; and Blackburn v. Colvin, 191 Kan. 239, 380 P. 2d 432.)
Lastly the appellant contends it was error to admit evidence concerning the revocation by the State Board of Healing Arts of his license to practice chiropractic through the testimony of Frederick E. Strum.
This evidence was relevant to show lack of mistake and knowledge on the part of the appellant in holding himself out as a doctor to Mrs. Jackson. (K. S. A. 60-455.)
The record discloses substantial evidence that Adelheid M. Jackson believed the appellant to be a doctor. She testified that through a friend she “found out a doctor where I can contact for an abortion.” When asked why she contacted him she answered:
“A. Because I was told lie is a doctor and lie will do it the right way. That is why I contacted him. I didn’t know it was—
“Q. He could do what the right way?
“A. Put the baby away and all this.
“Q. What do you mean by ‘put the baby away’?
“A. I mean abort the baby and I was thinking he’s a doctor and that is why I told him about the infection, too, and I was thinking he could clear it up.”
The evidence showed knowledge on the part of the appellant that he was not a medical doctor. It was competent to show there was no way the appellant could have in good faith held himself out to be a doctor.
In conclusion, the appellant has failed to show he was prejudiced by any of the rulings, concerning which complaint is made, in the trial of this action.
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The opinion of the court was delivered by
ROSEN, J.:
This is a workers compensation case in which the employer, Armour Swift-Eckrich (Armour), has petitioned us to review the decision by the Court of Appeals, which held that the injury to claimant Alejandro Casco’s right shoulder was the natural and probable consequence of the work-related injury to his left shoulder. Armour raises two issues: whether the injury to Casco’s right shoulder was the natural and probable consequence of the injury to his left shoulder and whether Casco should receive compensation for parallel injuries.
FACTS
Alejandro Casco, a 56-year-old immigrant from Honduras, began working in sausage production for Armour in 1998. Casco, who is right-handed, suffered a repetitive use injury to his left shoulder on June 8, 2000, due to his employment with Armour. As a result of that injuiy, Casco underwent two surgeries on his left shoulder to repair a torn rotator cuff. The first surgery occurred in February 2001, and the second surgery occurred 1 year later, in February 2002. Because of the injury to his left shoulder and the restrictions associated with his treatment, Casco began using only his right arm to perform all of his job duties, which included repetitive work tying sausages, placing them in a box, and carrying the 20-to 25-pound box to another location.
Casco began experiencing pain in his right shoulder in August 2002. In January 2003, Dr. Sergio Delgado, a board-certified orthopedic surgeon, diagnosed Casco with impingement syndrome or a possible rotator cuff tear in his right shoulder. In February 2003, Casco appeared before an administrative law judge (ALJ) because Armour denied treatment for his right shoulder. The ALJ ordered Armour to provide treatment for Casco’s right shoulder injury. Casco underwent surgery on his right shoulder in April 2003.
Following the surgery on his right shoulder, Casco was off work until October 16, 2003, when his treating physician released him to work with permanent restrictions. Casco returned to Armour on October 17, 2003, and presented his permanent restrictions to Ar mour’s employment representative, who informed Casco that there were no jobs available within his restrictions. Because Casco had no other means of support, he moved to Maryland to live with his son on October 23, 2003.
Casco received a letter from Armour on November 12, 2003, advising him that it had a position within his restrictions. The letter stated that Casco must report for the position by November 10, 2003, or Armour would consider his absence as a voluntary termination of his employment. Although the date to report had passed by the time Casco received the letter, Casco saved the money necessary to purchase a bus ticket and returned to Kansas. He reported for work at Armour on November 24, 2003, but was denied employment. Armour’s employment agent advised Casco that he was too late for the opportunity that was available on November 10 and no odrer positions were available. Thereafter, Casco returned to Maryland and attempted to find employment within his permanent restrictions. Although he applied for 84 positions, Casco was unable to find any employment.
Dr. Delgado evaluated Casco in November 2003 to establish a permanent impairment rating after Casco achieved maximum medical improvement. Dr. Delgado rated Casco’s impairment as 27% for tire left upper extremity, 6% for the right upper extremity, and 19% to the whole body. Dr. Delgado issued permanent restrictions requiring Casco to avoid activities that involved pushing or pulling 50 pounds repetitively or 70 pounds occasionally, lifting from the floor over 40 pounds occasionally, lifting from waist to overhead between 5 and 10 pounds occasionally and “zero” pounds repetitively. Dr. Delgado also reviewed a list of tasks performed by Casco in the preceding 15 years and concluded that Casco could no longer perform 10 of the 20 tasks.
Armour retained Terry Cordray, a vocational expert, to assess Casco’s ability to access the labor market. Cordray identified 15 tasks that Casco had performed in the previous 15 years and concluded that Casco could no longer perform 43.5% of those tasks because of Ins restrictions. According to Cordray, Casco could expect entry-level employment as a security guard, cashier, counter or retail clerk, retail salesman, or housekeeper, resulting in a wage of approximately $7.50 per hour and a wage loss of 37.5%. Cor-dray’s evaluation focused on Casco’s physical limitations and did not account for the limitations due to Casco’s inability to speak English.
Casco sought compensation for the permanent disability in both of his shoulders. An ALJ heard the matter based on the stipulation that Casco’s injuries occurred on June 8, 2000, arose out of his employment with Armour, and were covered by the Workers Compensation Act. Casco testified that, after the surgeries on his left shoulder, he worked solely with his right arm, performing the same work that other employees were performing with two arms. Dr. Delgado testified that the injury to Casco’s right shoulder was due to overcompensating for the injuiy to his left shoulder. No other medical professionals testified.
The ALJ found that Casco “suffers a persistent left shoulder rotator cuff tear and an impingement syndrome to the right shoulder” and that the “right impingement syndrome is attributable to the overuse of that extremity due to compensation for the injury to the left shoulder.” Relying on Dr. Delgado’s undisputed testimony, the ALJ found that Casco’s “right upper extremity injury is the natural and probable consequence of the left upper extremity injury” and Casco has a whole person impairment. The ALJ further relied on Dr. Delgado’s testimony to find that Casco suffered a 19% whole person functional impairment. The ALJ averaged the percentage of task loss as determined by Dr. Delgado and Terry Cordray and found that Casco has a 39% task loss. Considering Casco’s wage loss to be 100%, the ALJ determined that Casco had a 69.5% work disability. The ALJ awarded Casco the following: The Claimant is entitled to 46.14 weeks’ temporary total disability compensation at the rate of $321.31 per week or $14,825.24 and 72.93 weeks at the rate of $321.31 per week or $23,433.14, for a 19% permanent partial general bodily disability and as of October 17, 2003, 193.85 weeks at the rate of $354.72 or $68,762.47 for a 69.5% work disability, making a total award as limited by K.S.A. 44-510Í of $100,000.
Armour appealed the ALJ’s award to the Workers Compensation Board (Board). The Board rejected the ALJ’s conclusion that Casco’s right shoulder injury was the natural and probable consequence of his left shoulder injury. Concluding that Casco suffered a new and separate accident to his right shoulder due to repetitive use, the Board calculated Casco’s compensation based on the schedule in K.S.A. 44-510d. Although the Board found that Casco suffered two separate accidental injuries on two separate dates, it relied on the parties’ stipulation regarding the date of injury and calculated Casco’s award for both injuries based on the same date of injuiy. The Board awarded Casco 46.14 weeks of temporary total disability at the rate of $321.31 per week, or $14,825.24, and 48.29 weeks of permanent partial disability at the rate of $321.31 per week, or $15,516.06, for a total award of $30,341.30 for the 27% permanent partial disability to his left upper extremity. The Board further awarded Casco 13.5 weeks of permanent partial disability at a rate of $321.31 per week, or $4,337.69, for the 6% permanent partial disability to his right upper extremity.
Casco appealed the Board’s decision to the Court of Appeals, which reversed the Board’s decision. Casco v. Armour Swift-Eckrich, 34 Kan. App. 2d 670, 128 P.3d 401 (2005). The Court of Appeals concluded that the Board ignored Dr. Delgado’s undisputed medical testimony regarding the causation of Casco’s right shoulder injuiy and held that the award should be based on injuries to parallel limbs. 34 Kan. App. 2d at 682-83. Armour then petitioned us to review the Court of Appeals’ decision, and we granted Armour’s petition.
ANALYSIS
The first question we address is whether the injury to Casco’s right shoulder is a necessaiy and probable consequence of the injuiy to his left shoulder. Armour claims that the injuiy to Casco’s right shoulder is a new injuiy, so Casco’s compensation should be calculated as a scheduled injury pursuant to K.S.A. 44-510d. Casco asserts that the Court of Appeals is correct in concluding that his right shoulder injuiy was caused by his left shoulder injury.
Standard of Review
Before analyzing the parties’ arguments, we must begin by setting forth the standard of review. K.S.A. 2005 Supp. 44-556(a) gives us jurisdiction to review decisions by the Board in accordance with the Act for Judical Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq. Appellate courts may only review tire Board’s decisions upon questions of law. K.S.A. 2005 Supp. 44-556(a).
The KJRA limits the scope of appellate review to the following: The court shall grant relief only if it determines any one or more of the following:
“(1) The agency action, or the statute or rule and regulation on which the agency action is based, is unconstitutional on its face or as applied;
“(2) the agency has acted beyond the jurisdiction conferred by any provision of law;
“(3) the agency has not decided an issue requiring resolution;
“(4) the agency has erroneously interpreted or applied the law;
“(5) the agency has engaged in an unlawful procedure or has failed to follow prescribed procedure;
“(6) the persons taking the agency action were improperly constituted as a decision-making body or subject to disqualification;
“(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, winch includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act; or
“(8) the agency action is otherwise unreasonable, arbitrary or capricious.” K.S.A. 77-621(c).
An appellate court reviews the Board’s factual findings to determine whether they are supported by substantial evidence “when viewed in light of the record as a whole.” K.S.A. 77-621(c)(7); accord Titterington v. Brooke Insurance, 277 Kan. 888, 894, 89 P.3d 643 (2004). A review of the Board’s factual findings is a question of law. In a workers compensation case, substantial evidence is evidence of substance and relevant consequence, carrying a fitness to induce conviction that the award is proper or furnishing a substantial basis of fact for reasonably resolving the issue. An appellate court reviews the evidence in a light most favorable to the prevailing party without reweighing the evidence or redetermining the credibility of witnesses. We will uphold the Board’s findings even though there is evidence in the record to support contrary findings. 277 Kan. at 894-95. However, a factfinder cannot disregard undisputed evidence that is not improbable, unreasonable, or untrustworthy. Such evidence must be regarded as conclusive. Demars v. Rickel Manufacturing Corp., 223 Kan. 374, 380, 573 P.2d 1036 (1978); Overstreet v. Mid-West Conveyor Co., Inc., 26 Kan. App. 2d 586, 589, 994 P.2d 639 (1999).
In addition to reviewing the Board’s factual findings, an appellate court can determine whether the Board reached the appropriate legal conclusion based on its findings. K.S.A. 77-621(c)(4); Frazier v. Mid-West Painting, Inc., 268 Kan. 353, 358, 995 P.2d 855 (2000). In Frazier, the claimant suffered a repetitive use injuiy to his right forearm and shoulder. While undergoing treatment in a work-hardening program, the claimant permanently aggravated a preexisting back condition. The Board found that the injury to the claimant’s back occurred during the work-hardening program but concluded that the back injuiy was a separate injuiy wholly unrelated to his right forearm injury. This court agreed with the Board’s factual findings but reversed .the Board’s conclusion. Because the work-hardening program was required to treat the claimant’s right forearm and shoulder injuiy, the Frazier court concluded that the aggravation of the claimaint’s back condition was a natural and probable consequence of the claimant’s right forearm and shoulder injury. 268 Kan. at 358. Thus, when the Board has reached the wrong legal conclusion based on an erroneous application of the law, we have jurisdiction to reverse the Board’s decision. See K.S.A. 77-621(c)(4).
Secondary Injury Rule
Like Frazier, the issue in this case involves the application of the secondary injury rule, which was first articulated by this court in Jackson v. Stevens Well Services, 208 Kan. 637, 493 P.2d 264 (1972). The secondary injuiy rule allows a claimant to receive compensation for all of the natural consequences arising out of an injury, including any new and distinct injuries that are the direct and natural result of the primary injury. 208 Kan. at 643. In Jackson, a 22-foot pipe dropped onto the claimant’s hands, causing the amputation of two fingers and part of the thumb on his right hand and one finger on his left hand. Several months later, the claimant began experiencing pain in his right shoulder, limiting the movement of his right arm. Because of the disability in his hands and shoulder, the claimant was totally disabled from obtaining or retaining tire same land of employment. The Jackson court included the secondary shoulder disability in determining the claimant’s award for the primary injury to his hands, concluding that the claimant had suffered a general body disability rather than a scheduled injury. 208 Kan. at 644.
One year later, this court limited the application of the secondary injury rule in Stockman v. Goodyear Tire & Rubber Co., 211 Kan. 260, 505 P.2d 697 (1973). The claimant in Stockman injured his back at work. After 4 months of treatment, the claimant was released to return to work. The day after the claimant returned to work, he reached down to pick up a tire at home and hurt his back again, causing him to miss work for another 5 months. The Stockman court held that the claimant was not entitled to compensation for the second injuiy to his back because it was a new and separate injury, stating that “[t]he rule in Jackson is limited to the results of one accidental injuiy. The rule was not intended to apply to a new and separate accidental injury such as occurred in die instant case.” 211 Kan. at 263.
The question of whether an injury results from a new and separate accident depends on the facts in each case. When there is expert medical testimony linking the causation of the second injury to the primary injury, the second injury is considered to be compensable as die natural and probable consequence of the primary injuiy. See Frazier, 268 Kan. at 355; Makalous v. Kansas State Highway Commission, 222 Kan. 477, 480-81, 486, 565 P.2d 254 (1977) (intimal hemorrhage in claimant’s coronaiy artery resulting from being hit with a post during extremely cold weather caused claimant to have a heart attack 3 months later); Gillig v. Cities Service Gas Co., 222 Kan. 369, 564 P.2d 548 (1977) (tom cartilage in claimant’s knee from 1973 injury caused die knee to lock in 1975, requiring surgery); Chinn v. Gay & Taylor, Inc., 219 Kan. 196, 201, 547 P.2d 751 (1976) (injury to claimant’s knee caused change in posture and gait which resulted in a disability in claimant’s back); Reese v. Gas Engineering & Construction Co., 219 Kan. 536, 540-41, 548 P.2d 746 (1976) (injury to claimant’s leg caused compensable disability in claimant’s back and other leg); Bergemann v. North Central Foundry, Inc., 215 Kan. 685, 686-87, 689, 527 P.2d 1044 (1974) (severe crush injury to claimant’s foot caused disability in claimant’s back); Jackson, 208 Kan. at 643; Logsdon v. Boeing Co., 35 Kan. App. 2d 79, 128 P.3d 430 (2006) (injury to claimant’s shoulder in 1993 caused it to dislocate when he slipped and fell in 2004); Woodward v. Beech Aircraft Corp., 24 Kan. App. 2d 510, 512-13, 949 P.2d 1149 (1997) (twisting injury to claimant’s left knee caused overuse of right knee and aggravated a preexisting condition, causing disability in claimant’s right knee); Wall v. Gage Bowl, Inc., No. 89,350, unpublished Court of Appeals opinion filed April 18, 2003 (injury to claimant’s left elbow caused overuse injury to right arm). Cf. Weitharn v. Safeway Stores, Inc., 16 Kan. App. 2d 188, 820 P.2d 719, rev. denied 250 Kan. 808 (1991) (doctor’s notes indicated that claimant’s back pain was unrelated to his knee injury); Banks v. U.S. Engineering Co., No. 94,789, unpublished Court of Appeals opinion filed Feb. 17, 2006 (injury to claimant’s left knee was not a natural and probable consequence of the injury to claimant’s right knee based on medical testimony to that effect).
In this case, the Board found that Casco returned to work, performing his work duties using only his right arm because of the injury to his left shoulder. The Board specifically noted the following portion of Casco’s testimony:
“Since I had the — my restrictions on my left arm, then I had to do all the work with my right arm. I was doing the work — I was having to do repetitive movement with my right arm — with my right hand in order to tie up the meat. I then had to — after that container would fill up, I then had to pick it up with my right arm and take it to a specific place. I would hold it with my right arm and then put it against my side in order to take it to a specific place.”
The Board also noted Dr. Delgado’s opinion that Casco’s right shoulder problems were due to overuse because he was compensating for his left arm, quoting the following portion of Dr. Delgado’s testimony:
“ ‘Q. [Armour’s counsel] Okay. Now Doctor, with regard to the right shoulder I think you’ve indicated that you feel that the shoulder became injured because he was over compensating [sic] for the other shoulder. Is that true?
“ ‘A. (Dr. Delgado). That is very frequently seen where when there’s limitation of motion, weakness or pain, the other shoulder is overloaded if he continues to do the same activities as before or similar to them.
“ ‘Q. Arid when you say same activities, you are specifically referring to his work activities, is that true?
“ ‘A. Yes.
“ ‘Q. Because would it be fair to assume if he wasn’t doing the work activities, there would be nothing to cause an injury to that right shoulder, would there?
“ ‘A. That would be correct.’ ”
We note that these factual findings are supported by substantial evidence. However, the Board’s conclusion that Casco suffered a new and separate injury to his right arm fails to consider all of the evidence. After acknowledging Casco’s testimony that he was working solely with his right arm because of the restrictions for his left arm, the Board focused on Casco’s testimony that he was doing repetitive work with his right arm. Specifically, tire Board failed to consider Casco’s uncontradicted testimony that he was carrying boxes weighing between 20 and 25 pounds with one arm while other employees were using two arms to carry the same load. Because this evidence is not unreasonable, improbable, or untrustworthy, we consider it to be conclusive. See Demars, 223 Kan. at 380. The conclusion that Casco injured his right arm by carrying 20-to 25-pound boxes with only his right arm is more consistent with Dr. Delgado’s testimony regarding Casco overcompensating rather than the Board’s conclusion that Casco’s right shoulder injury was caused by repetitive use.
Likewise, the Board’s conclusion places undue emphasis on Dr. Delgado’s reference to Casco’s work activities rather than his expert opinion linking the causation of Casco’s right shoulder injury to his left shoulder injury. The Board’s emphasis on Casco’s work activities is the basis for Armour’s first argument to this court. Armour argues that the secondary injury rule only applies to new and distinct disabilities that result from the performance of routine daily activities excluding any work-related activities. Thus, under Armour’s argument, Casco could claim that his right shoulder in jury was a secondary injury if the overcompensation had occurred during his daily,-nonwork-related activities.
To support this argument, Armour cites Chinn v. Gay & Taylor, Inc., 219 Kan. 196, 547 P.2d 751 (1976), for the proposition that the claimant’s award for a secondary injury was not related to his work activities. However, Armour’s reliance on Chinn is misplaced. In Chinn, the claimant was employed as a traveling salesman. Chinn twisted and injured his left knee when he stepped out of a company car. Chinn continued to work, but walked with a limp. A few weeks later he developed pain in his back. Several months later, Chinn underwent surgery on his left knee. Chinn’s medical treatment extended for over 1 year. After his treatment was complete, Chinn continued to have trouble with his knee, causing him to limp especially after sitting down or driving long distances. As a traveling salesman, Chinn was required to drive long distances, so his back problems were directly related to his work activities, not just his nonwork-related activities. Thus, Chinn does not support Armour’s argument.
Armour cites no other authority to support its argument that the secondary injury rule only applies when the secondary injury results from nonwork-related activities. Our analysis of secondaxy injuiy case law reveals that Armour’s argument lacks merit. See Frazier, 268 Kan. at 356 (stating that the claimant’s treatment included a work-hardening program which simulated work activities); Gillig, 222 Kan. at 370-71 (noting that clamaint’s secondary injury occurred while he was working); Woodward, 24 Kan. App. 2d at 511 (observing that claimant returned to work and began favoring his injured knee).
Armour further argues that the secondary injuiy rule is unnecessary if the employee suffers from another disability related to his or her work. According to Armour, the employee can seek compensation for the new injury under the Workers Compensation Act regardless of the prior injuiy. This argument also lacks merit. As demonstrated by Frazier, a claimant’s compensation may be affected by the application of the secondaiy injury rule. In Frazier, the claimant stipulated that he had not notified his employer of the aggravating injuiy to his back within the statutoiy time limits. The aggravating injury to his back occurred while the claimant was participating in a work-hardening program for an injury to Ins right arm. The Frazier court concluded that the claimant’s back injury resulted from the treatment for his right arm injury and applied the secondary injury rule. If the secondary injury rule had not applied, the claimant’s failure to timely notify his employer of the back injury would have precluded compensation. 268 Kan. at 358. Thus, the application of the secondary injury rule may be a necessary component in properly calculating .a claimant’s compensation award. We are not persuaded by Armour’s argument to the contrary.
Finally, Armour contends that the Court of Appeals applied the wrong standard of review and should have affirmed the Board’s decision because it was supported by substantial competent evidence. The Court of Appeals concluded that the Board ignored the causation evidence from Dr. Delgado’s testimony. We agree with the Court of Appeals. The Board’s decision also fails to consider the uncontroverted evidence that Casco was carrying 20-to 25-pound boxes with only his right arm because he could not use his left arm. K.S.A. 77-621(c)(7) gives us authority to reverse the Board’s decision when it is based on a determination of fact that is not supported by the evidence in the record. The Board’s factual determination that Casco suffered an injury to his right shoulder due to repetitive use is not supported by the evidence in the record.
Likewise, K.S.A. 77-621(c)(4) gives us jurisdiction to reverse the Board’s legal conclusions when the Board erroneously interprets or applies the law. See, e.g., Frazier, 268 Kan. at 358; Demars, 223 Kan. at 380. The Board’s legal conclusion that Casco suffered a new and separate injury places undue emphasis on Dr. Delgado’s testimony regarding Casco’s work activities without considering Dr. Delgado’s testimony linking the injury to Casco’s right shoulder with the injury to his left shoulder. As a result, the Board’s conclusion erroneously interpreted and applied the secondary injury rule.
The record contains uncontroverted evidence estabhshing that the injury to Casco’s right shoulder was caused by overcompensating for the injury to his left shoulder. Based on this evidence and the secondary injury rule, we hold that the injury to Casco’s right shoulder is a direct and natural consequence of the injury to his left shoulder. Because the Board ignored this uncontroverted evidence and incorrectly interpreted and applied the secondary injury rule, we reverse the Board’s decision and affirm the Court of Appeals.
Parallel Injuries
The next issue involves the calculation of Casco’s award. In addition to concluding that the secondary injury rule applies, the Court of Appeals also held that Casco’s award should be based on injuries to parallel limbs. Although the Court of Appeals did not specify what the calculation should be, it implied that the ALJ’s award for permanent partial general disability is correct. 34 Kan. App. 2d at 682-83. Armour argues that scheduled injuries are the rule and that the Court of Appeals has improperly broadened the exceptions to the rule.
The Workers Compensation Act dictates the calculation of a claimant’s award. As a result, the calculation of Casco’s award requires us to interpret the statutes. Pursuant to K.S.A. 2005 Supp. 44-556(a) and K.S.A. 77-621(c)(4), we have jurisdiction to review the interpretation of a statute in workers compensation cases. The interpretation of a statute is a question of law, over which this court has unlimited review. The Board’s interpretation of the law is entitled to judicial deference if there is a rational basis for the Board’s interpretation. However, the Board’s interpretation is not conclusive and, though persuasive, is not binding on this court. Foos v. Terminix, 277 Kan. 687, 692-93, 89 P.3d 546 (2004).
When construing statutes, we are required to give effect to the legislative intent if that intent can be ascertained. When a statute is plain and unambiguous, we must give effect to the legislature’s intention as expressed, rather than determine what the law should or should not be. Foos, 277 Kan. at 695. A statute should not be read to add that which is not contained in the language of the statute or to read out what, as a matter of ordinary language, is included in the statute. Neal v. Hy-Vee, Inc., 277 Kan. 1, 15, 81 P.3d 425 (2003).
The Workers Compensation Act calculates compensation differently depending on the nature of the disability. K.S.A. 44-510c provides compensation for temporary and permanent total disabilities. K.S.A. 44-510d and 44-510e provide compensation for permanent partial disabilities. K.S.A. 44-510d calculates the award based on a schedule of disabilities. If an injury is on the schedule, the amount of compensation in the schedule includes compensation for the complete loss of the member or the partial loss of the member. K.S.A. 44-510d(a)(21). The compensation for a scheduled disability is based on the schedule alone without regard to the claimant’s loss in earning power. Stephenson v. Sugar Creek Packing, 250 Kan. 768, 771, 830 P.2d 41 (1992). K.S.A. 44-510e, on the other hand, calculates the award for any injury not included on the schedule. A claimant with a permanent partial general disability pursuant to K.S.A. 44-510e is eligible to receive temporary total disability in addition to the compensation he or she may receive for the permanent partial disability. K.S.A. 44-510c(c); K.S.A. 44-510e.
The parallel injury rule referred to by the Court of Appeals originated with Honn v. Elliott, 132 Kan. 454, 295 Pac. 719 (1931). In Honn, the claimant worked as a rig builder in the oil fields. Honn injured both of his feet when he fell approximately 20 feet from an oil rig. Honn sustained a permanent partial loss of use for both of his feet, with one foot bearing a 45% loss of use and the other foot bearing a 40% loss of use. Honn’s injuries precluded him from building oil rigs, any work that required climbing ladders, any work that required him to move quickly, or any work that required him to be on his feet much of time.
The 1927 version of the workers compensation code applied to Honn’s injuries and contained compensation provisions similar to tiróse included in the current version of the code. The applicable section for calculating compensation for any disability not resulting in death was R.S. 1923, 44-510(3) (1930 Supp.), which contained subsections for permanent total disability, R.S. 1923, 44-510(3)(a) (1930 Supp.); temporary total disability, R.S. 1923, 44-510(3)(b) (1930 Supp.); permanent partial disability based on scheduled injuries, R.S. 1923, 44-510(3)(c) (1930 Supp.); and permanent partial general disability for injuries not included on the schedule, R.S. 1923, 44-510(3)(c)(22) (1930 Supp.) Although the schedule included compensation for the loss of a foot, the Honn court concluded that Honn s award should be calculated as a permanent partial disability rather than as separate scheduled injuries. 132 Kan. at 458. The Honn court noted that the language in R.S. 1923, 44-510(3)(c)(1)-(20) (1930 Supp.), which established the schedule for injuries, did not specifically provide for compensation when both members were injured in pairs. The Honn court then looked to R.S. 1923, 44-510(3)(a) (1930 Supp.), which addressed permanent total disability, observed that the subsection included language regarding the loss of “ ‘both eyes, both hands, both arms, both feet, or both legs,’ ” and applied that language to R.S. 1923, 44-510(3)(c) (1930 Supp.) because the schedule did not specifically reference injuries to parallel members. 132 Kan. at 458. The rule resulting from Honn, referred to here as the parallel injury rule, provides that a claimant may receive compensation based on a permanent partial general disability rather than scheduled injuries if the claimant simultaneously injures parallel members.
Since Honn was decided in 1931, several cases have addressed the parallel injury rule. In the majority of those cases, this court concluded that the parallel injury rule from Honn did not apply. See, e.g., Pruter v. Larned State Hospital, 271 Kan. 865, 875, 26 P.3d 666 (2001) (calculating compensation for claimant’s simultaneous wrist and ankle injuries as scheduled injuries); Crouse v. Wallace Manufacturing Co., 207 Kan. 826, 486 P.2d 1335 (1971) (refusing to apply Honn because the injuries did not occur at the same time); Wammack v. Root Manufacturing Co., 184 Kan. 367, 371-72, 336 P.2d 441 (1959) (holding that injuries to both thumbs are scheduled injuries because thumbs do not appear on the list of parallel members); Stanley v. United Iron Works Co., 160 Kan. 243, 256-57, 160 P.2d 708 (1945) (concluding that compensation for the permanent partial loss of hearing in both ears and the partial loss of sight in one eye is calculated based on scheduled injuries); Hurst v. Independent Construction Co., 136 Kan. 583, Syl. ¶ 2, 16 P.2d 540 (1932) (refusing to apply the parallel injury rule to simultaneous injuries in both of die claimant’s feet because one foot had completely healed); Rodriguez v. Henkle Drilling & Supply Co., 16 Kan. App. 2d 728, 731, 828 P.2d 1335, rev. denied 251 Kan. 939 (1992) (denying application of Honn because the injuries to claimant’s knee and arm did not occur at the same time).
However, a few cases have extended the Honn parallel injury rule. See, e.g, Hardman v. City of Iola, 219 Kan. 840, 844-45, 549 P.2d 1013 (1976) (calculating claimant’s award for injuries to both hands as permanent partial general disability rather than scheduled injuries); Murphy v. IBP, Inc., 240 Kan. 141, 144-45, 727 P.2d 468 (1986) (extending the holding in Honn to repetitive use injuries in claimant’s hands and arms even when the injuries are not manifested simultaneously); Downes v. IBP, Inc., 10 Kan. App. 2d 39, 40-41, 691 P.2d 42 (1984), rev. denied 236 Kan. 875 (1985) (applying the holding in Honn to repetitive use injuries to claimant’s carpal tunnel injuries to her hands and wrists).
The legislature has amended the workers compensation code since Honn was decided. One of the key modifications in the code is the division of the three types of compensation for permanent disabilities into separate statutes. R.S. 1923, 44-510(3)(a) and (b) (1930 Supp.) has become K.S.A. 44-510c, which addresses permanent and temporary total disability. R.S. 1923, 44-510(3)(c) (1930 Supp.) has become K.S.A. 44-510d, which addresses permanent partial scheduled disabilities. R.S. 1923, 44-510(3)(c)(22) (1930 Supp.) has become K.S.A. 44-510e, which addresses permanent partial general disabilities, or nonscheduled partial disabilities. The division of the prior subsections of R.S. 1923, 44-510(3) (1930 Supp.) into separate statutes emphasizes the distinction between the different types of compensation and the legislature’s intent to treat each type of compensation differently.
Casco relies on the parallel injury rule from Honn for his assertion that the ALJ properly calculated his compensation as a permanent partial general body disability under K.S.A. 44-510e. However, our analysis reveals that Casco’s reliance on Honn is misplaced because Honn is in error. The Honn court improperly interpreted R.S. 1923, 44-510(3) (1930 Supp.). The Honn court grafted language applicable to permanent total disabilities from subsection (a) into subsection (c), which applied to permanent partial disabilities. R.S. 1923, 44-510(3)(a) (1930 Supp.) provided a presumption for permanent total disability, stating:
“Loss of both eyes, both hands, both arms, both feet or both legs, shall, in the absence of proof to the contrary, constitute a total permanent disability.”
Although, R.S. 1923, 44-510(3)(c) (1930 Supp.), which applied to permanent partial disability, did not include the same language, the Honn court used this language to conclude that the legislature did not intend for the schedule to apply when a claimant simultaneously injured parallel limbs. 132 Kan. at 458. The Honn court’s statutory interpretation failed to distinguish between permanent total disability and permanent partial disability.
The Honn court’s interpretation of the statute did not follow a key tenet of statutory construction — courts cannot add something to a statute that is not readily found in the language of the statute. Neal, 277 Kan. at 15. This error in grafting language from subsection (a) into subsection (c) is more apparent now that the subsections of R.S. 1923, 44-510(3) (1930 Supp.) have been divided into separate statutes. Neither of the statutes applicable to permanent partial disability includes language regarding the loss of both eyes, both hands, both arms, both feet, or both legs, or any combination thereof. See K.S.A. 44-510d; K.S.A. 44-510e.
In Pruter v. Larned State Hospital, 271 Kan. 865, 26 P.3d 666 (2001), this court set forth the proper analytical procedure for calculating a claimant’s award when the claimant has a loss of both eyes, both hands, both arms, both feet, or both legs or any combination thereof. In Pruter, the claimant broke her right wrist and left ankle simultaneously when she fell at work. The ALJ determined that Pruter suffered a 6% impairment to her right upper extremity and a 7% impairment to her right lower extremity, converted those findings to a 7% functional impairment, and calculated Pruter’s award as a nonscheduled injury. The Court of Appeals reversed Pruter’s award, concluding that it should have been calculated as two separate scheduled injuries. See 271 Kan. at 867. On appeal to this court, Pruter argued that her simultaneous injuries to her arm and leg should be compensated as a permanent partial general disability based on Honn and a 1959 amendment to K.S.A. 44-510(3)(a), which included any combination of an eye, hand, arm, foot, or leg. Pruter also argued that nonscheduled injuries are the general rule.
Contrary to Prater’s argument, the Pruter court concluded that scheduled injuries are the general rale and nonscheduled injuries are the exception. However, the Pruter court agreed with Prater that the 1959 amendment extended the presumption for permanent total disability to any combination of injuries to an eye, hand, arm, foot, or leg. 271 Kan. at 873, 875. Based on these conclusions, the Pruter court determined that Prater’s combination of injuries to her right arm and right leg “should have been presumed to constitute a permanent total disability, consistent with the reasoning in Honn” and pursuant to K.S.A. 44-510c(a)(2) (formerly K.S.A. 44-510[3][a]). 271 Kan. at 875. However, the Pruter court then considered the language in K.S.A. 44-510c(a)(2) in context. The relevant part of K.S.A. 44-510c(a)(2) provides:
“Permanent total disability exists when the employee, on account of the injury, has been rendered completely and permanently incapable of engaging in any type of substantial and gainful employment. Loss of both eyes, both hands, both arms, both feet, or both legs, or any combination thereof, in the absence of proof to the contrary, shall constitute a permanent total disability.” (Emphasis added.)
Noting that Prater sustained relatively minor injuries, this court concluded that Prater’s injuries did not cause permanent total disability by leaving her “completely and permanently incapable of engaging in any type of substantial and gainful employment” as required by K.S.A. 44-510c(a)(2). 271 Kan. at 875. As a result, tire Pruter court held that Prater’s claim should be calculated as separate scheduled injuries pursuant to K.S.A. 44-510d. 271 Kan. at 876.
Although the Pruter court did not state that it was overruling Honn, its analysis effectively rejected it. The Honn court failed to address evidence that Honn was actually employed after receiving his injuries, indicating that he was capable of performing some work, thereby rebutting the statutoiy presumption that he was per manently and totally disabled. See R.S. 1923, 44-510(3)(a) (1930 Supp.) (providing: “Loss of both eyes, both hands, both arms, both feet, or both legs, shall, in the absence of proof to the contrary, constitute a total permanent disability.” [Emphasis added.]). Unlike the Honn court, tire Pruter court properly applied the rebuttable presumption of permanent total disability in K.S.A. 44-510c(a)(2) to determine the nature of Praters injury as a preliminary step rather than a final step in its analysis. After concluding that Pruter's injuries did not cause a total, permanent disability, the Pruter court proceeded to the statutes applicable to permanent partial disability, K.S.A. 44-510d and K.S.A. 44-510e. Because K.S.A. 44-510d is the general rule and an injury to a wrist (forearm) and an ankle (lower leg) are included on the schedule, the Pruter court did not have to consider K.S.A. 44-510e, which only applies to injuries not covered by the schedule. Pruter, 271 Kan. at 873, 876; see also K.S.A. 44-510d(a)(18) (defining forearm as the area from the wrist to below the elbow, and lower leg as the area from the ankle to below the knee).
The Honn parallel injury rale shortcuts the analytical process for calculating a claimant’s compensation and contravenes the legislature’s intent to make scheduled disabilities the general rale for permanent partial disabilities. The Workers Compensation Act calculates compensation for injured workers in a specific and sequential manner, their order defined by statute as precisely as the four bases on a major league baseball diamond. Honn essentially allows the claimant, after successfully reaching first base, to be waved home and exempted from traversing to second and third bases, thus improperly converting a single into a home ran. Neither baseball nor the law can allow such flouting of the rules to be permitted, and therefore Honn's dubious “homer” cannot continue to be deemed valid in the record books. In brief, shortcutting is one thing; short-changing the law is quite another. Although the Pruter court declined to explicitly overrule Honn and its progeny as it relates to the parallel injury rale, we do so today.
Pruter established the proper analysis for calculating compensation when the claimant has a loss of both eyes, both hands, both arms, both feet, or both legs, or any combination thereof. The analysis begins with a determination of whether the claimant has suffered a permanent total disability. K.S.A. 44-510c(a)(2) establishes a rebuttable presumption in favor of permanent total disability when the claimant experiences a loss of both eyes, both hands, both arms, both feet, or both legs, or any combination thereof. If the presumption is not rebutted, the claimant’s compensation must be calculated as a permanent total disability in accordance with K.S.A. 44-510c. Pruter, 271 Kan. at 875-76.
If the presumption of permanent total disability is rebutted with evidence that the claimant is capable of engaging in any type of substantial and gainful employment, the claimant’s award must be calculated as a permanent partial disability. See K.S.A. 44-510c(a)(2); Pruter, 271 Kan. at 875-76. Although both K.S.A. 44-510d and K.S.A. 44-510e apply to permanent partial disability, we note that eyes, hands, arms, feet, and legs are all included in the schedule. See K.S.A. 44-510d(a)(11)-(17). Because the legislature has made the schedule of injuries the general rule and permanent partial general disability the exception to the rule, the claimant’s compensation must be calculated in accordance with the K.S.A. 44-510d for scheduled injuries. See, e.g., Pruter, 271 Kan. at 876.
As a result of the disability in both of his shoulders, Casco has lost function in both of his arms, implicating K.S.A. 44-510c, which provides:
“Permanent total disability exists when the employee, on account of the injury, has been rendered completely and permanently incapable of engaging in any type of substantial and gainful employment. Loss of both eyes, both hands, both arms, both feet, or both legs, or any combination thereof, in the absence of proof to the contrary, shall constitute a permanent total disability.” (Emphasis added.) K.S.A. 44-510c(a)(2).
The language in K.S.A. 44-510c(a)(2) requires that the disability result from a single injury. Here, that condition is satisfied by the application of the secondary injury rule. Because the injury to Casco’s right shoulder is a natural and probable consequence of the injury to his left shoulder, we conclude that the disability in both of his arms is the result of a single injury.
When a single injury causes the claimant to suffer the loss of both eyes, both hands, both arms, both feet, both legs, or any com bination thereof, we apply the Pruter analytical model. Our analysis begins with determining whether Casco is permanently and totally disabled. See Pruter, 271 Kan. at 875. Because Casco suffers from the loss of both arms, K.S.A. 44-510c(a)(2) establishes a rebuttable presumption that he is permanently, totally disabled. If that presumption is not rebutted by evidence in the record, Casco’s compensation must be calculated in accordance with K.S.A. 44-510c as a permanent total disability.
The Board did not make any findings regarding Casco’s capability for engaging in any type of substantial and gainful employment. Although two vocational experts testified that Casco could possibly earn between $6 and $8 per hour, Casco testified that he had contacted 84 prospective employers and had not been able to find any employment within his restrictions. Based on this evidence, the ALJ found that Casco had made a good faith effort to find a job and imputed a 100% wage loss. However, the ALJ, like the Board, did not make any findings regarding whether Casco was completely and permanently incapable of engaging in any type of substantial and gainful employment.
Because the evidence regarding Casco’s ability to find any type of substantial and gainful employment is controverted and there are no factual findings to review, we remand the matter to the ALJ to make the necessary findings. If the ALJ finds that Casco is incapable of engaging in any type of substantial and gainful employment, his compensation must be calculated based on K.S.A. 44-510c as a permanent total disability. If the ALJ finds that Casco is capable of engaging in some type of substantial and gainful employment, his compensation must be calculated as two scheduled injuries pursuant to 44-510d.
We affirm the Court of Appeals opinion regarding the application of the secondary injury rule and the findings of parallel injuries. The case is remanded to the ALJ for further proceedings in accordance with this opinion.
Luckert, J., not participating.
Lockett, J., Retired, assigned. | [
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The opinion of the court was delivered by
Owsley, J.:
This is an action by a minor child seeking benefits based on violations of K. S. A. 38-602. This statute is commonly referred to as the Child Labor Law and reads as follows:
“That no child under sixteen years of age shall be at any time employed, permitted, or suffered to work in or about any mine or quarry; or at any occupation at any place dangerous or injurious to life, limb, health or morals except as provided in section 2 [38-602a] of this act.”
The jury returned a general verdict for defendant and plaintiff appeals.
The plaintiff urges this court to enter judgment for plaintiff notwithstanding the verdict, or for a new trial. In order to consider the points raised on appeal a summarized statement of the facts is necessary.
Plaintiff, ten years of age, was in the employ of defendant on March 21, 1964, and on that date he was riding on the rear bumper of a pickup truck driven by defendant. Defendant knew that plaintiff was riding on the bumper, and this was common practice. The pickup was equipped with a cold box and was used in making milk deliveries. Either two handles or four handles were provided on the rear of the cold box for the delivery boys. Plaintiff fell from the bumper, west of the City of Hoxie, Kansas, while the truck was traveling on. old Highway 24, an asphalt surface road. The truck was traveling at the rate of 20 m. p. h. at the time.
Kenneth Jolly testified as to the maimer in which he and plaintiff carried on their employment with defendant. Jolly was riding on the bumper with plaintiff at the time plaintiff fell. Jolly testified that the truck was not always stopped when he got on or off to make deliveries; that he carried milk with one hand while riding on the bumper; that he would get milk from the back of the truck while the truck was moving; that he and the other kids work ing for defendant would play around while riding on the bumper; that he and the other kids (including plaintiff) would walk from one side of the bumper and drag their feet in the street while the truck was moving; and that they would climb on the cold box while the truck was moving. Jolly further stated that defendant was sometimes driving when these things would occur. He stated that the weather on March 21, 1964, was kind of snowy; that there was snow on the ground and that it was unusual for the boys to ride on the bumper in such weather. On cross-examination, Jolly stated that he did not continually hold on to the handle while riding on the back bumper and that when the ■ door was open (the door to the cold box), the boys would hold on to the inside of the box. Jolly stated that at the time plaintiff fell, he was turned around backwards and playing around like he always did back there. He stated that plaintiff’s hands slipped. He stated that this was not a new antic plaintiff was attempting at the time he fell and Jolly had seen him do it a lot of times. He stated that he and plaintiff would “goof off” at least once during the milk route each day and that defendant would admonish him and plaintiff about this. Defendant got on to the boys for dragging their feet and this was true of plaintiff and everyone that worked there.
Plaintiff’s testimony substantiated that of Jolly’s as to the maimer in which he and the other boys employed by defendant would conduct themselves while riding on the back bumper. Plaintiff added that he had sometimes fallen while getting on or off the moving truck and that defendant was sometimes driving on these occasions. Bruce Frazey likewise testified as to the manner in which the work was conducted. He further stated that he had fallen off the truck while making deliveries.
Defendant’s testimony directly substantiated the testimony of Ken Jolly, plaintiff and Bruce Frazey as to the manner in which the boys conducted their employment from the back bumper. Defendant stated that he had a policy of advising the boys as to how to conduct themselves while riding on the back bumper and that the boys were not to jump off until the truck stopped. He stated that he would discuss these things witih the boys when a couple of the boys would get to fooling around too much. Defendant testified that it was not common practice for him to allow any of the boys to ride on the back bumper after plaintiff was injured. He testified that the boys would jump off the truck while it was moving, that they would sometimes jump on when it was running, and defendant would chew them out about it if he thought they had it coming. He testified that he knew the boys disregarded his instructions from time to time. Defendant stated that “it was dangerous for them to get off and on while the truck was moving.” He testified that he “didn’t necessarily know they were dragging their feet off the back bumper,” but that he had “caught them doing it.” That he would then instruct the boys not to do it and he would then sometimes catch them doing it again. Defendant further stated that the situation was not dangerous if the boys used the handles.
Plaintiff first contends that the trial court erred in overruling plaintiff’s motion to strike paragraphs 7 and 8 from the defendant’s answer. This was an attempt to eliminate the defenses of contributory negligence and assumption of risk on the ground that they are insufficient and immaterial.
The trial court, in its pretrial order, ruled “that plaintiff must show a violation of the statutes alleged in his petition and must show that such violation was cause of the injury alleged to such an extent that the defenses of contributory negligence and the assumption of risk are precluded.”
The plaintiff’s petition alleges a violation of K. S. A. 38-602 and, in addition to the violation of the statute, charges defendant with other acts of negligence. Negligence, other than statutory violation, remained in the case following the pretrial conference as disclosed by the pretrial order.
In an action by a servant against a master for injuries suffered during the course of employment, the defenses of contributory negligence and assumption of risk are available to the master. Since plaintiff chose to charge the defendant with negligence other than statutory violation it follows that these defenses were available to the defendant in the trial of this case.
This case was submitted to the jury only on the issue of violation of the statute. The trial court instructed the jury that contributory negligence was not a defense. We find that tins insruction was proper. However, in the event this action is again tried we should point out that while contributory negligence is not a defense, acts of the plaintiff in connection with his injury would be admissible in evidence as bearing on the issue of proximate cause. (Bortzfield v. Sutton, 180 Kan. 46, 299 P. 2d 584.) If the plaintiffs injuries were caused solely and proximately by plaintiffs negligence, statutory liability would be averted. I£ plaintiff’s injuries were the result of a violation of the statute and such violation was a proximate cause of the injuries, the fact that plaintiff was guilty of negligent acts which contributed to his injuries would not prevent recovery.
The trial court did not err in failing to strike paragraphs 7 and 8 from the answer of the defendant.
Plaintiff next complains that the trial court erred in overruling plaintiffs objections to defendant’s cross-examination of Leo L. Frazey as to the employment of another of Frazey’s children by defendant subsequent to the injury to plaintiff. In connection therewith the trial court also erred in refusing to give plaintiffs Instruction No. 4A which directed the jury to disregard any evidence that the parents of plaintiff permitted anotiier of their children to work for defendant after the injury to plaintiff.
On cross-examination Frazey testified that the bumper was not a proper place for standing or riding on the truck and it was no place for a ten-year old child to be riding. He further stated that after the plaintiff was injured he allowed his son Rodney to perform the same duties and job. He stated that Rodney did not ride back on the bumper when he worked. Further cross-examination discloses the following:
“Q. Did you consent to Rodney going to work for Mr. Hoar after Bobby had been hurt?
“Mr. Shelton: This is immaterial and irrelevant.
“Mr. Ryan: This man’s allegations are that this was hazardous and dangerous. That is what this man says in his petition. That is not what he is saying here.
“The Court: You may answer.
“I am trying to say that I believe this to be an improper place for a child that age to be riding. I intended to say that Rodney did go to work for defendant and I didn’t know Rodney was riding on the back of the truck. Evidently we had some assurance from defendant that this kind of thing wouldn’t happen again.”
The defendant in his closing argument referred to his testimony in the following language:
“. . . You have heard the testimony of Leo Frazey as he attempted to impart upon you an idea he thought it dangerous. He is the guy whose petition in writing says it is dangerous, hazardous, injurious to his son’s life, limb and health, but he didn’t tell you this on this witness stand. He did tell you on this witness stand that contrary to what he has said in his petition in writing, he apparently did not think it was so dangerous or injurious or hazardous when this happened, but that he turned right around and allowed another member of his family to do it. . ; .”
The defendants state in their brief that “the sole purpose of the cross-examination complained of was to test the credibility of the testimony of Leo L. Frazey.”
This action seeks a recovery for Robert Glenn Frazey as distinguished from any claim made by his parents. We have held that contributory negligence of a parent is not imputed to the child when the action is for the benefit of the child. (Becker v. Rupp, 187 Kan. 104, 353 P. 2d 961.) The benefits extending to children by the Child Labor Act should not be defeated by any action or statements made by the parents.
The questioned testimony was inadmissible unless the test of credibility theory asserted by defendant is sound.
It is apparent that defendant on cross-examination purposely caused the plaintiff’s falher to testify that the work conditions were dangerous so that he could inquire about the father permitting the second child to work for the defendant under like conditions. All the testimony defendant elicited from the father was the father’s opinion concerning the work conditions to which the plaintiff was subjected. It is generally held that expressions of opinion as distinguished from the facts cannot be contradicted by other evidence on the basis that the credibility of witness is being tested. This rule is set forth in 58 Am. Jur., Witnesses, § 768, p. 419, as follows:
“While it is an established rule that for purposes, of impeachment a witness may be interrogated as to his prior statements made in or out of court respecting matters of fact, it is an equally settled rule, as announced by the weight of juristic authority, that a non-expert witness who testifies as to facts cannot be impeached or discredited by his prior contradictory expressions of opinion given by him either by way of testimony or by way of statements made out of court. In other words, the statement of the witness upon which he can be impeached must not only relate to the issue but must be a matter of fact and not merely a former opinion of the witness in relation to the matter in issue, inconsistent with a different opinion which may seem warranted by his testimony or the facts to which he testified. The reason for the rule is that in matters of opinion men are likely to differ materially and such difference of opinion does not tend to affect the character, credibility, or veracity of one who may have given expression to conflicting opinions at different times or stages of an investigation. . . .”
It appears from tbe record that the father was permitted to testify as to the matter in controversy without objection by the plaintiff and then later plaintiff objected to similar questions; If this evidence was introduced without objection from the plaintiff the court should have placed the evidence in a proper perspective before the jury by instructing the jury in accordance with plaintiff’s requested Instruction No. 4A which reads as follows:
"Evidence has been introduced to show that the parents of Robert Glenn Frazey permitted another of their children to work for Defendant after the injury of Robert Glenn Frazey. In determining whether or not the employment of Robert Glenn Frazey was dangerous at the time of his injury, as defined by the court, you are instructed to disregard and not consider such evidence.”
We conclude that the trial court erred in overruling plaintiff’s objections to defendant’s cross-examination of Frazey as to the employment of another child subsequent to plaintiff’s injury. We further conclude that if this evidence was introduced without objection, as the record indicates, the trial court erred in failing to give plaintiff’s requested Instruction No. 4A.
Plaintiff also contends the trial court erred in overruling plaintiff’s motion for a directed verdict on the issue of liability.
We have stated that in ruling on a motion for a directed verdict, the court must consider all the evidence and the inferences that can reasonably be drawn therefrom in the light most favorable to the party against whom the motion is directed, and if reasonable minds could reach different conclusions from the evidence and inferences the motion must be overruled. (Springfield Tent & Awning Co. v. Rice, 202 Kan. 234, 447 P. 2d 833.)
Plaintiff primarily relies on Casteel v. Brick Co., 83 Kan. 533, 112 P. 145. We held therein that “. . . [WJhether a particular occupation is dangerous within the meaning of the statute is a question of fact.” (Syl. ¶ 3.) We have carefully considered the wording of this opinion as emphasized by the plaintiff. We have also noted plaintiff’s argument that under the facts in the case before us no reasonable minds could reach any conclusion other than a finding of liability.
We have reviewed this record and find that reasonable minds might reach different conclusions from the facts. The soundness of this finding is clearly demonstrated by the decision of the trial court jury holding generally in favor of the defendant.
Plaintiff further claims it was error to submit Instructions No. 2 and 9 to the jury. We have searched the record and cannot find any objection by plaintiff to these instructions. In fact, on page 42 of the record we find the following statement by counsel for plain ■tiff: “I believe that is all we have. I have no objections to the instructions as given.”
Plaintiff waived his right to question these instructions by failing to timely object thereto. (Scott v. Bennett, 181 Kan. 410, 312 P. 2d 224.)
Plaintiff further complains that the court erred in submitting Instruction No. 11 to the jury. The instruction reads:
“A proximate cause of an injury is a cause which in direct, unbroken sequence produces the injury. It is one without which the injury would not have occurred.
“A direct cause is a cause which directly brings about the injury either immediately or through happenings which follow one after another.”
Plaintiff contends that it was error to give a general definition of proximate cause, where, as here, the general rule of proximate cause was superseded by a specific rule of this Court applicable to the issue of causation in cases of this kind. Furthermore, for the trial court to define proximate cause without instructing the jury as to the role of proximate cause in the case, or fail to otherwise mention proximate cause, was confusing and misleading.
We agree with plaintiff that the role of proximate cause in this case is related to the statute and should have been given as it applied to the statute. Although this may not constitute reversible error in itself, in view of our conclusion herein, we believe it advisable to express this view.
Other trial errors urged by plaintiff need not be considered in view of what has been heretofore determined.
Reversed and remanded with directions to proceed in accordance with the views expressed herein. | [
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The opinion of the court was delivered by
Owsley, J.:
This is a criminal action instituted by the State of Kansas. Defendant, Oían E. Karney, was tried before a jury in the District Court of Sedgwick County on a five count information: Count One, larceny; Count Two, buying or receiving stolen property; Count Three, possession of burglary tools; Count Four, possession of a firearm after a felony conviction; Count Five, larceny. He was convicted on all Counts except Count Two.
On the night of July 12 or 13, 1969, the Dodge City Junior High School was burglarized. Several items of property were stolen: two air conditioners, an IBM typewriter, six cheerleader uniforms, and a radio. On that same night the State Highway Commission Subdistrict Shops at Cimarron, Kansas, were also burglarized. An air conditioner was taken from this location. Dodge City is in Ford County and Cimarron is in Gray County.
Oían and Corine Karney, the defendant and his wife, were seen in Dodge City, Kansas, at approximately 4:30 a. m. on July 13, 1969, by two Dodge City police officers. The defendant drove a white 1967 Ford.
A few hours later, at 9:00 a. m., the defendant and his wife went to the residence of Alvin and Ruth Crowe in Wichita, Kansas. Mr. and Mrs. Crowe accompanied the defendant and his wife to the Crowe-Bar Lounge in Wichita, which was owned and operated by Mrs. Crowe. At that time the defendant was still driving the white 1967 Ford. Three air conditioners and a radio were taken from the defendant’s car into the lounge. Mrs. Crowe also saw an IBM typewriter in the trunk of the defendant’s car. These items of property were stolen property from the Dodge City and Cimarron burglaries. Later that day a search of the lounge was conducted by sheriff’s officers with the permission of Mrs. Crowe and those items were then seized.
In the evening of that same day, Sheriff Miller and KBI Special Agent Jess Gragg stopped the defendant in the white 1967 Ford in Wichita. At that time Sheriff Miller noticed several items in plain view in the rear portion of the passenger area of defendant’s car. Sheriff Miller also asked for consent to search the trunk of the car. Defendant consented and there Sheriff Miller found an IBM typewriter. The serial number was noted to be the same as that of the stolen typewriter. Sheriff Miller then drove the defendant’s car to the sheriff’s compound at the county courthouse and instructed officers there to seize the items of property in the car.
Sheriff Miller returned to the defendant’s apartment. With the consent of Mrs. Karney the apartment was searched and a .38 Colt revolver was found under a bureau of drawers in the defendant’s bedroom.
In their original form as entered against the defendant, Counts One and Five of the information charged a burglary under K. S. A. 21-520 and a larceny under K. S. A. 21-524. Burglary and larceny under these statutes are separate and distinct offenses. (State v. Finley, 208 Kan. 49, 490 P. 2d 630.) Defendant moved to quash Counts One and Five in their entirety contending that venue for the burglary charges could lie only in the county where the offense was committed and not in another county where the stolen property had been taken. The court entered a journal entry which sustained tibe motion to quash “as to the burglary aspect of the charge.” Defendant’s first contention of error on appeal is that it was error to try him on Counts One and Five since they were quashed in their entirety.
K. S. A. 62-401 states:
“Offenses committed against the laws of this state shall be punished in the county in which the offense is committed, except as may be otherwise provided by law.”
Venue of an offense is jurisdictional as stated in State v. Fields, 182 Kan. 180, 318 P. 2d 1018, at page 184:
“Under the provisions of G. S. 1949, 62-401 the venue of an offense is jurisdictional and it must be proved to establish the jurisdiction of the court (Hagan v. The State, 4 Kan. 75 [2nd Ed.].) but by the great weight of authority it is not necessary to prove this fact by specific question and answer. It may be established by other competent evidence that the offense was committed in the jurisdiction of the court. . . .”
K. S. A. 62-407, another statute in effect at the time this crime was committed, states:
“When property taken in one county by burglary, robbery, larceny or embezzlement has been brought into another county, the jurisdiction is in either county.”
The meaning of this statute is that an offender may be charged, tried, and convicted for one of these crimes in a county into which he takes stolen property in the same manner as if the crime had been committed in that county. This construction has been accepted by this court when applying this statute and its predecessors. (State v. Lyon, 203 Kan. 78, 452 P. 2d 838.) We hold that it was error for the trial court to sustain the motion to quash the burglary charges in Counts One and Five of the information.
We approve the joinder in one information of larceny and receiving stolen property. Defendant claims burglary and receiving stolen property cannot be joined, but burglary was stricken from the information. (State v. Fields, 70 Kan. 391, 78 Pac. 833.) Further, the jury acquitted defendant of Count Two on proper instructions that they could convict of either larceny (Count One) or receiving stolen property (Count Two) but not both.
Defendant alleges it was error to refuse to require an officer to furnish his official report which he had used to refresh his memory to defendant’s counsel during cross-examination. Defendant cites State v. Oswald, 197 Kan. 251, 417 P. 2d 261, which held:
“Generally the opposing party or counsel has the right, on proper demand, to inspect, and use for purposes of cross examination any paper or memorandum which is used by a witness while on the stand for the purpose of refreshing his memory upon matters as to which he is testifying. (Citing case.)” (p. 262.)
We are inclined to agree with defendant that he was entitled to inspect the report. Appellee claims, however, that the trial court’s denial of defendant’s request for inspection did not prejudice the rights of the defendant. Appellee argues that the officer testified from notes as to his observations of defendant on the night in question; namely, the year and make of defendant’s car, who was with the defendant, the license number of the vehicle, the dress of defendant and his companion, and where the defendant and his wife ate. He further argues that in view of the routine nature of the facts related by the officer it did not result in prejudice and the defendant did not suggest any manner in which he was prejudiced. We believe appellee’s argument is sound, particularly in view of the convincing evidence of guilt otherwise disclosed by the record.
Defendant also challenges the admission of various exhibits of the state in evidence.
First, photographs of the Dodge City burglary scene which contained writing upon them were admitted. Defendant alleges that the writing constituted hearsay. In this case the information in the writing was already in evidence through prior testimony of the photographer. When viewed in the light of the entire record no prejudice can be seen from the admission of this evidence. (State v. Green, 192 Kan. 451, 388 P. 2d 657.)
Second, a challenge is made as to the admission of a serial number tag found in the Crowe-Bar Lounge with the stolen property. At trial an objection was made that it was illegally obtained. On appeal it is argued that the tag was improperly identified by the officer who testified in court. Neither objection is sustainable since the objection to admissibility of evidence on appeal must be made on the same grounds as the objection made at trial. (Thornton v. Bench, 188 Kan. 89, 360 P. 2d 1065; Townsend, Administrator v. Jones, 183 Kan. 543, 331 P. 2d 890.)
Third, objection is made as to the admission of the registration certificate of the white 1967 Ford owned by Olan Kamey. The document was certified by the custodian of records in the county. No right of confrontation of witnesses in court has been denied, as defendant contends, because the document is not a witness. (State v. Johnson, 204 Kan. 62, 460 P. 2d 505.) The constitutional right of confrontation is not violated by the admission of an authenticated copy of a public record or document.
Fourth, copies of the journal entry, information, commitment papers, photographs and fingerprints, which were the official state records of the conviction of defendant for crimes of burglary and larceny in Stanton County, Kansas, in 1959, were allegedly admitted in violation of the right to confrontation. As has been pointed out, no right of confrontation exists as to the admission of properly authenticated public documents or copies thereof.
Fifth, defendant claims there was insufficient evidence to connect the .38 Colt revolver and cartridges with him as owner. Unlawful possession may be proved by circumstantial evidence inconsistent with any reasonable conclusion or hypothesis other than guilt. (Bailey v. U. S., 410 F. 2d 1209 [1969].) The gun was obtained in a search made with defendant’s wife’s permission so it was not illegally obtained. That was the objection made at trial. Having objected on this ground, he cannot raise additional grounds for objecting on appeal.
Sixth, a challenge is made as to the legality of the seizure of evidence when Sheriff Miller stopped defendant’s automobile and searched it. Sheriff Miller looked into the rear passenger area and defendant alleges this was an unreasonable search in violation of the Fourth Amendment to the United States Constitution. We cannot agree. In State v. Frizzell, 207 Kan. 393, 485 P. 2d 160, it is held that looking through the window of an automobile by a law enforcement officer legally in a position to view evidence does not constitute a search. It is not a search even though it is nighttime and the objects seized are seen in the light of a flashlight. (State v. McMillin, 206 Kan. 3, 476 P. 2d 612.)
No merit can be found in the argument that the state failed to prove the essential elements of the crimes charged in Counts One, Three, Four, and Five of the information.
As to Counts One and Five, defendant contends there was insufficient evidence to convict him of a burglary. The contention of insufficient proof to sustain a burglary conviction is wholly incorrect as defendant was convicted of larceny. Nonetheless, it was permissible for the state to introduce evidence of commission of a burglary where defendant was tried for larceny in connection with a burglary.
As to Count Three, there was evidence presented which was sufficient to sustain proof of burglarious intent concurrent with possession of the burglary tools. Intent is inferred by concealment of the tools on one’s person, in his clothing, carrying them in his car instead of storing them in a shop, or from resistance to arrest. (State v. Hart, 200 Kan. 153, 434 P. 2d 999.) Intent may also be shown by proof that defendant was guilty of recent burglaries or that he had the fruits of a recent burglary in possession. Intent is provable by admission of prior convictions of defendant for burglary and larceny. (State v. Caldrone, 202 Kan. 651, 451 P. 2d 205.) The state introduced voluminous evidence which was sufficient on all points above.
As to Count Four, we have previously covered the sufficiency of evidence to sustain a conviction.
Defendants final contention in this appeal is that he was improperly sentenced under the Habitual Criminal Act. State v. Ware, 201 Kan. 563, 442 P. 2d 9, sets forth the rule proscribing the use of a prior felony conviction for sentencing under the act if it has once been used to prove a necessary element of a charge of possession of a firearm by a convicted felon. This contention would be correct if defendant were sentenced as a habitual criminal under Count Four, but he was not.
The prior conviction was not introduced to prove a material element of the crimes charged in Counts One, Three, and Five of the information. It was these Counts upon which defendant was sentenced as a habitual criminal. It was introduced pursuant to K. S. A. 60-455 to show some other material fact such as motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. When a prior conviction is used in this manner, it may also be used to invoke the Habitual Criminal Act.
Careful consideration has been given to all the issues raised in this appeal and we discern no error.
The judgment in Case No. 45,867 is reversed and the judgment in Case No. 46,043 is affirmed. | [
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The opinion of the court was delivered by
Owsley, J.:
This is an action to construe the provisions of the will of Walter F. Kuhn, who died in Sedgwick County, Kansas, on September 22, 1967, and the validity of the claim of D. J. Passmore, appellant, under said will.
The sole issue presented to the trial court and to this court was stipulated as follows: Is D. J. Passmore, by reason of the provisions of the last will of Walter F. Kuhn and the codicil thereto, entitled to have the payment of his salary continued beyond the deatih of Walter F. Kuhn and, if so, what period?
The provision of the will of Walter F. Kuhn that determines this issue reads as follows:
“The employees who are working for me at the time of my death shall continue to be paid the salaries they are receiving at my death until they participate in distributions of income from Walter Kuhn Trust No. 2.”
The trial court ruled that Passmore was not entitled to any benefits under the will and he appeals.
The testator made certain specific devises and bequests to his wife and thereafter created a marital trust (Walter F. Kuhn Trust No. 1) by devising to the Union National Bank, as Trustee, sufficient of his estate to take full advantage of the marital deduction provided by the United States Internal Revenue Code. All of the income of this trust is payable to the testator s widow and the corpus is subject to disposition pursuant to the directions which may be contained in the widow’s will.
After making certain specific bequests and devises, the testator bequeathed and devised the remainder of his estate to the Union National Bank in Wichita as Trustee (Walter F. Kuhn Trust No. 2). The income from Trust No. 2 is payable to the testator’s wife during her lifetime and for ten years after the wife’s death to the remaining named beneficiaries of the trust Ten years after the death of testator’s wife the corpus of the Trust No. 2 is to be distributed to certain beneficiaries named in the will.
When the will was executed Kuhn had in his employ four persons; namely John Wing, Lucille Kerr, R. O. Chapline and Talma Chapline. When he executed a codicil to the will on April 21, 1967, John Wing had died and Kuhn had in his employ only three persons; namely, Lucille Kerr, R. O. Chapline and Talma Chap-line. These persons were beneficiaries under the Walter F. Kuhn Trust No. 2. D. J. Passmore was first employed by the testator on May 1, 1967, and he is not a beneficiary of Walter F. Kuhn Trust No. 2. His employment was in connection with the gas production operations carried on by Kuhn and he continued in the employ of Kuhn in the same capacity from said date until Kuhn’s death.
In the trial court both appellant and appellees took the position that the will was not ambiguous but should be interpreted in accordance with their respective contentions. Appellant offered testimony of himself and other unnamed witnesses to the effect that the testator had stated that appellant was a beneficiary under the testator’s will and it was stipulated that all of these statements were made at times subsequent to the execution of the will and at times subsequent to the codicil of the will. The court declined to receive this testimony. The trial court held that:
“. . . D. J. Passmore is not one of those persons included within the contemplation of ‘employees’ as said term is used in the first sentence of Paragraph 1 of Subsection (e) of Section 11 of Article VI of the Last Will of Walter F. Kuhn, deceased; that the said D. J. Passmore should be and he is hereby denied any and all benefits under the Will of Walter F. Kuhn, deceased; . .
Appellant first contends that he comes within the class designated to continue in employment and that any implication arising from the use of the word “they” is insufficient to make the will ambiguous. We agree with appellant that the will is not ambiguous. We conclude that it was the intention of the testator garnered from all parts of the will that the beneficiaries under the clause in question were identified in two ways: First, they had to be working for the testator at the time of his death; and second, they had to be beneficiaries under the Walter Kuhn Trust No. 2. Since the appellant was not a beneficiary under Walter Kuhn Trust No. 2 it follows that he was not one of the persons designated to take under this clause of the will.
We have stated in In re Estate of Freshour, 185 Kan. 434, 345 P. 2d 689:
“. . . In construing a will the court must put itself as nearly as possible in the situation of the testator when he made the will, and from a consideration of that situation and from the language used in every part of the will, determine as best it can the purpose of the testator and the intentions he endeavored to convey by the language used.” (p. 438.)
Applying this rule to the situation here we reason that when Kuhn executed his will and his codicil he had in mind to provide for his employees. At that time he made them beneficiaries under the trust, but since they did not receive anything from the trust during the lifetime of his wife he made further provision that they should be paid their salaries during that period. It is obvious that he had no intention of providing for a person that he might at some time employ in the future. If he had had such an intention there would have been no reason to terminate the salary of the future employee at point in time when other employees participated in distribution of the Walter Kuhn Trust No. 2.
Appellant cites the following language from In re Estate of Cribbs, 180 Kan. 840, 308 P. 2d 111:
“It is also well established that a gift in clear terms cannot be taken away or diminished by later obscure and ambiguous provisions or mere precatory language. To diminish or encumber an absolute gift, it is necessary to find or supply language in the later clause equally as plain and unequivocal as in that of making the gift, expressing an intention to limit the devise already made.” (p.843.)
and argues that “a clearly stated gift is not to be abrogated by later words which modify it only by implication.” The defect in appellant’s argument in this case is that the subsequent words in this will do not modify by implication, but are “equally as plain and unequivocal” as those employed in making the gift. Appellant’s contention would have more merit if the modifying words were not a part of the same sentence in which the clearly stated gift is made and appeared subsequently in the will separated by clauses dealing with other testamentary provisions.
Appellant states that he comes clearly within the class designated in the first portion of this clause of the will, unless the word “they” implies a further restriction of this class. We are unable to glean from his brief any argument that the word “they” is not a further restriction. The appellee contends that the word “they” must have an antecedent and the antecedent can only be the earlier word “employees”, and concludes that the testator’s meaning and intention becomes obvious if one substitutes for the word “they” the words “such employees.” We find that appellee’s argument is sound and it is the only reasonable interpretation that can be given the language used by the testator.
Appellant also contends that the trial court erred in excluding testimony. The testimony offered was relative to conversations with the testator made subsequent to the execution of the will and the codicil. According to the stipulations of the parties referred to in the journal entry of judgment, each of the parties contended that the will was not ambiguous. It is difficult to follow appellant’s contention that this evidence should be admitted if he admits the will is not ambiguous. Be that as it may, since this court now finds that the will was not ambiguous the evidence proffered by the appellant was inadmissible. The law applicable and controlling on this court is found in Phillipson v. Watson, 149 Kan. 395, 87 P. 2d 567, where we said:
“In construing a will the primary rule to be followed is the will itself, the language used in it, and all parts of it. Evidence tending to show the situation of the testator at the time the will was executed, the nature of his business, the extent of his property, and his family or relatives, may be received if helpful in identifying property or beneficiaries, or to clarify language used by the testator, but not to change the will. Evidence respecting matters which occurred after the will was executed, and particularly after it was probated and the estate administered under it, is incompetent as bearing upon the construction of the will.” (Syl. If 3.)
We conclude that the will of Walter F. Kuhn was not ambiguous and that the appellant was not entitled to any benefits under it and that the proffered testimony concerning testator’s statements made after the will and codicil were executed was inadmissible.
The judgment is affirmed.
O’Connor and Prager, JJ., not participating. | [
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The opinion o£ the court was delivered by
Schboedeb, J.:
This is an appeal by the defendant, Thomas L. Rambo, Jr., in a criminal action from a conviction and sentence of theft (felony) contrary to K. S. A. 1970 Supp. 21-3701 (a). He was acquitted by the jury on a companion charge of burglary (K. S. A. 1970 Supp. 21-3715) arising from the same incident wherein various items of property were stolen from the home of Eddie L. Allison, a neighbor of Rambo.
The appellant asserts two points for reversal on appeal: (1) That the trial court erred in failing to instruct the jury as to the limited purpose for which evidence of other crimes or civil wrongs could be considered under K. S. A. 60-455; and (2) that the trial court erred in compelling the defendant to argue his motion for discharge in the presence of the jury, where such argument was based upon the insufficiency of the state’s evidence to support the charges.
The evidence admitted by the trial court, which gives rise to the first point, was the testimony of Arlene M. Manuel, a next-door neighbor to the home of Eddie L. Allison, where the offense occurred. In pertinent part her testimony was:
“Q. . . . Had you seen Mr. Rambo and Mr. Cleveland on Mr. Allison’s property before?
“A. I had.
“Q. And what were they doing then?
“A. They were out there by the truck.
“Q. And what were they doing at Mr. Allison’s truck?
“A. Taking some stuff off of the truck.
“Mr. Hayes: I object. I don’t know what date this was supposed to have been.
“The Court: Overruled.
“Q. I am sorry. I didn’t hear what you said. What were they doing?
“A. Taking some stuff off the truck.
“Q. And what was the stuff they were taking off of the truck?
“A. I couldn’t tell whether they were taking — I couldn’t tell what they were taking off. They had the hood up at the time I saw it.”
The foregoing testimony may well have been interpreted by the jury as a prior theft committed by the appellant. As such the testimony was admissible only for the limited purposes specified in K.S.A. 60-455.
Prior to submitting the case to the jury, counsel for the appellant objected to the failure of the trial court’s instructions to reflect the limited purpose for which the state had introduced evidence regarding a similar or previous criminal offense. The trial court, however, refused to supply the deficiency and give such instruction. We think the point made by the appellant has merit. The trial court erred.
Conviction is not a prerequisite to the admission of other similar offenses in evidence, if the requirements for the admission of such evidence are otherwise fulfilled. Evidence merely showing the commission of other similar offenses seems to be sufficient. (State v. Stephenson, 191 Kan. 424, 381 P. 2d 335.)
The failure to give an instruction limiting the purpose for which evidence of a similar previous offense was to be considered, regardless of request, is of such a prejudicial nature as to require the granting of a new trial. (State v. Roth, 200 Kan. 677, 438 P. 2d 58.) Here the testimony that the appellant had been on the property of Eddie L. Allison two months prior to the date of the offense with which he is here charged, and had committed acts which the jury could reasonably find to have constituted theft, the same as the offense here charged, was clearly prejudicial without an instruction limiting the purpose for which such evidence could be considered.
Authorities in support of the foregoing rule are: State v. Kowalec, 205 Kan. 57, 468 P. 2d 221; State v. Fabian, 204 Kan. 237, 461 P. 2d 799; State v. Jenkins, 203 Kan. 354, 454 P. 2d 496; State v. Dearman, 203 Kan. 94, 453 P. 2d 7, cert. denied 396 U. S. 895, 24 L. 2d 173, 90 S. Ct. 194; and State v. Motley, 199 Kan. 335, 430 P. 2d 264.
Over objection the trial court in the instant case required the appellant to argue his motion for discharge in the presence of the jury.
In arguing such motion at the close of the state’s evidence, counsel for the appellant expounded his theory concerning foe lack of evidence on foe part of foe state to overcome foe presumption of innocence.
The appellant argues, when the trial court overruled foe appellant’s motion for discharge, without argument by foe state and without any explanation to foe jury, the jury could only interpret foe court’s action as an expert opinion that foe state’s case had been proved. The appellant contends such ruling, under these circumstances, actually destroys foe presumption of innocence and tactically requires foe presentation of evidence by the defendant to overcome foe status of guilt created by foe court. It is argued the court has by its ruling, in effect, preempted and usurped foe rights of foe jury on issues of fact and found foe defendant guilty at the conclusion of foe state’s case.
It is well settled that foe trial court may not comment upon foe weight of foe evidence. (State v. Johnson, 201 Kan. 126, 439 P. 2d 86.)
On foe record here presented foe state made a good case for theft by overwhelming evidence, but whether foe trial court’s action in requiring the appellant to argue his motion for discharge at foe close of foe state’s evidence in foe presence of the jury, and in abruptly denying foe motion, resulted in prejudice requiring a reversal is a point we need not determine. The judgment must be reversed and a new trial granted on the first point considered.
Our code of evidence does not specifically state that a motion for discharge, or for a judgment of acquittal, at foe conclusion of foe state’s evidence in a criminal case must be heard out of foe presence of foe jury. But K. S. A. 1970 Supp. 22-3419 (1) for all practical purposes is identical to Federal Rule No. 29 (a) of the Federal Rules of Criminal Procedure. Under federal practice a motion for judgment of acquittal calls for a ruling of law by the trial court, and it is the better practice when such motion is made at the close of all the government’s evidence for it to be heard out of the presence of the jury. (Orfield, Criminal Practice Under the Federal Rules, §29:17; and Wright, Federal Practice .and Procedure: Criminal §462.)
The question arose in United States v. Coke, 339 F. 2d 183 (2nd Cir. 1964) where the defendant’s motion under Rule No. 29, for acquittal at the close of all the evidence was heard in the presence of the jury. A conviction was reversed by the court saying:
“. . . Contrary to the better practice, it was heard in the presence of the jury. When the attention of the panel was focused on the ultimate issue of the guilt or innocence of the accused, the trial judge’s abrupt denial of the motion following the repeated deprecating interjections in the examination of witnesses by the defendant’s counsel, may well have implied that the defense was incompetent and a sham and that the jury should convict. Such damage could not very well have been prevented by the perfunctory instructions given.
“In a case, which had previously ended in a mistrial, where the evidence to convict rested so heavily on the testimony of one witness, we cannot say that appellant was accorded a fair trial. The case is, therefore, reversed and remanded for a new trial.” (pp. 185, 186.)
Another federal decision affirming Coke is Tanner v. United States, 401 F. 2d 281 (8th Cir. 1968).
In a criminal case it is contrary to better practice to hear a motion for judgment of acquittal at the conclusion of the state’s evidence, under K. S. A. 1970 Supp. 22-3419 (1),. in the presence of the jury. Except in unusual circumstances, it would be difficult to avoid prejudice to a criminal defendant unless such motion is heard out of the presence of the jury. (See State v. Jones, 204 Kan. 719, 466 P. 2d 283.)
The judgment of the lower court is reversed. | [
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|
The opinion of the court was delivered by
Foth, C.:
Appellant, an inmate of the state penitentiary, filed a motion under K. S. A. 60-1507 to vacate his sentence which had been imposed upon his conviction of burglary in the second degree and larceny in connection therewith. The sole ground urged in his motion as invalidating his conviction was the admission into evidence at his trial of certain items taken from his car as the result of what he claims was an illegal search and seizure.
The lower court appointed counsel for appellant, set the matter for hearing and ordered appellant produced for the hearing. Before the hearing date, however, a pre-trial conference was held, at which the court considered the State’s motion to dismiss. At this conference it was developed from the original files that appellant’s search and seizure question had been fully aired on a pre-trial motion to suppress; the trial court’s determination of the issue had been considered and upheld by this court in affirming the conviction on direct appeal, State v. Kowalec, 205 Kan. 57, 468 P. 2d 221.
It further appeared that appellant’s counsel in this proceeding, after a careful review of the original file and transcripts and extensive discussion of the matter with appellant, was unaware of any evidence which had not been fully presented to and considered on the original pre-trial motion, at trial, and in this court.
The result was a dismissal of the proceeding without the evidentiary hearing originally contemplated, followed by this appeal from that dismissal.
Here, appellant recognizes our rule and our decisions that a 60-1507 proceeding may not ordinarily be employed as a substitute for a second appeal. (Rule No. 121 [cl 131; Jones v. State, 204 Kan. 839, 466 P. 2d 353; Carter v. State, 199 Kan. 290, 428 P. 2d 758). This case does not fit into any of the exceptions to this rule that we have heretofore recognized, and appellant so concedes. He nevertheless insists that it was error to dismiss without an evidentiary hearing, contending that the trial court, once having appointed counsel for him, was bound to afford him such a hearing.
The argument goes something like this: (a) under the rule a trial court must grant a hearing unless “the files and records conclusively show that the movant is entitled to no relief,” and counsel must be appointed if the motion presents “substantial questions of law or triable issues of fact;” (b) the court here thought it necessary to appoint counsel, thereby implicitly recognizing the existence of such questions of law or issues of fact; (c) therefore the files and records could not “conclusively” show that appellant was entitled to no relief.
Intriguing though this syllogism may be, we think this case aptly illustrates its fallacy. The appointment of counsel is not forbidden where substantial questions of law or triable issues of' fact are absent, it is only required when they are present. Here the appointment of counsel proved, ultimately and by hindsight, to have been technically unnecessary under the test laid down by the rule. In the meantime it performed the valuable function of assuring the trial court, first, that there was not concealed beneath the opaque prose of a laymans pleading some justiciable issue requiring a plenary hearing, and, secondly, that to decide the one issue presented there was nothing outside the “files and records” which needed to be considered. Once it received such assurance the court below properly disposed of the proceeding summarily, and its judgment is affirmed.
APPROVED BY THE COURT. | [
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|
The opinion of the court was delivered by
Fatzer, C. J.:
This action was commenced by the appellees to permanently enjoin the appellant, the City of Prairie Village, from enforcing Ordinance No. 1154 which purported to regulate stopping, parking, and selling from vehicles upon the paved portion of the streets of the City between the hours of 7:00 a. m. and 9:00 p. m. The district court declared the ordinance to be arbi trary, unreasonable and void, and permanently enjoined its enforcement. The City has appealed.
Delight Wholesale Company is a corporation engaged in the selling of frozen treats, including but not limited to, ice cream and popsicles. The company sells its products at wholesale and leases jeeps with built-in refrigerators to young persons of college age who sell the frozen treats at retail on the public streets of Prairie Village. Appellee, Carol Laman, was a resident of Prairie Village and was one of the franchise dealers of Delight Wholesale.
On July 7, 1969, the governing body of Prairie Village approved and passed Ordinance No. 1154. Section 1 reads:
“The Governing Body having determined upon the basis of engineering and traffic study and investigation that the stopping or parking of vehicles for vending, selling, and/or offering for sale, goods, wares, ice cream, milk, vegetables, insurance, medicine, candy, soft drinks, or any merchandise from said vehicle, upon the paved portion of the public streets of said city is not reasonable or safe under the pedestrian and vehicular traffic conditions found to exist between the hours of 7 o’clock, a. m., and 9 o’clock, p. m., of any day; therefore, the Governing Body hereby determines and declares the same to be unreasonable and unsafe and no person shall stop a vehicle upon the paved portion of any street or parts of streets of the City of Prairie Village for the purpose of vending, selling, and/or offering for sale, goods, wares, ice cream, milk, vegetables, insurance, medicine, candy, soft drinks, or merchandise between the hours of 7 o’clock, a. m., and 9 o’clock, p. m., of any day.” (Emphasis supplied.)
For violation of the ordinance, a person could be imprisoned for up to sixty days, fined not to exceed $100, or both.
Trial by the district court was held on September 2, 1969. The issue raised by the appellees was that the hours of operation permitted by the ordinance destroyed their lawful business under the guise of regulation, and for that reason the ordinance was invalid. The City contended, through statements of counsel, the ordinance was a safety measure. It was asserted the element of violation consisted of the stopping of a vehicle by any person on the paved portion of a street to effectuate a sale. Primarily, the City maintained that the act of intermittent stopping, proceeding at a slow rate, and the accumulation of crowds crossing streets between intersections constituted a safety hazard.
The only evidence presented was the testimony of the appellees, which, in a summary way, showed that Delight Wholesale carefully screened its franchisers and accepted only those with good moral character and good driving records. The young drivers were carefully trained before they were given a jeep. They were spot-checked from time to time to insure the implementation of training methods. The insurance rates paid by Delight Wholesale bespeak the drivers’ safety records. The appellant did not controvert the evidence that the drivers were well trained in safety methods. There were no health or sanitation problems presented.
The record discloses that Delight Wholesale imposed many restrictions upon its drivers which had a direct relationship to safety. They were not allowed to sell near schools while the schools were in session, nor were they allowed to make sales on main thoroughfares, arterial highways, or in the business district. The drivers were not permitted to sell, or to let others come around to the street side of the vehicle. Children across the street from where the jeeps stopped were under close scrutiny of the drivers and were instructed when to cross the street to the vehicle. The jeeps were operated at safe speeds, and the drivers were instructed not to impede the flow of traffic when in vending areas. There was no evidence that anyone was endangered, or that anyone had been injured as a result of the manner of operation. The jeeps have lights which give notice to other drivers when they are stationary by the curb. They are uniquely marked, making them clearly visible. There is every indication to cars approaching from either direction when the jeeps are stopping and starting, moving slow, and so forth, in a regular pattern or system.
The district court made findings of fact and conclusions of law which read:
“Findings of Fact
“1. That Delight Wholesale Company is a corporation engaged in the sale of frozen products at wholesale to persons operating vehicles leased from said company for resale of such products at retail in franchised territories within the defendant city.
“2. That Carol Laman operated a vehicle leased from Delight Wholesale within the defendant city prior to the enactment of Ordinance No. 1154.
“3. That the vehicles owned by Delight Wholesale are leased only to carefully screened and trained drivers and are operated in a safe manner and only in residential areas, and their operation is a legitimate business.
“4. That on July 7, 1969, the city council adopted Ordinance No. 1154, which has the effect of prohibiting the conduct of plaintiffs’ business.
“Conclusions of Law
“1. That the police power is wide in its scope and gives power to city government to enact laws to promote the health, morals, security and welfare of the people; it cannot, however, under the guise of police power, enact un reasonable and oppressive ordinances or those which are violative of fundamental law.
“2. That the effect of Ordinance No. 1154 is to prohibit plaintiffs’ legitimate business operation and not to reasonably regulate said business.
“3. That Ordinance No. 1154 is not within the scope of the police power of the City of Prairie Village and is arbitrary and unreasonable and therefore void.”
Appellant raises numerous issues on appeal, most of which are duplicitous. In summary, the appellant contends, first, there was no substantial evidence to support the district court’s finding that the jeeps operated by franchise dealers of Delight Wholesale were operated in a safe manner; second, that the enactment of Ordinance No. 1154 was a proper exercise of police power in that it had a substantial relationship to public health, safety and welfare, and was neither arbitrary or -unreasonable.
Turning to the appellant’s first contention, this court has defined the term “substantial evidence” to mean evidence which possesses something of substance and relevant consequence and which furnishes a substantial basis of fact from which the issues tendered can reasonably be resolved. (Johnson v. General Motors Corporation, 199 Kan. 720, 433 P. 2d 585; Mann v. Good, 202 Kan. 631, 451 P. 2d 233; Newcomb v. Brettle, 196 Kan. 560, 413 P. 2d 116.) We conclude from examining the record there was ample and substantial evidence to justify the district corut in finding the drivers were carefully screened and trained; that the jeeps were operated in residential areas in a safe manner and in the pursuit of a legitimate business. The absence of any evidence by the appellant to the contrary compels such a result. It follows the appellant’s first contention is without merit.
Turning to the appellant’s second contention, a similar question was presented in the recent case of Delight Wholesale Co. v. City of Overland Park, 203 Kan. 99, 453 P. 2d 82. This court held the police power is wide in its scope and gives the governmental body broad powers to enact laws to promote the health, morals, security, and welfare of the people. Broad discretion is vested in the governing body to determine for itself what is deleterious to health, morals, or is inimical to public welfare. See Watson v. City of Topeka, 194 Kan. 585, 400 P. 2d 689; Community Antenna TV of Wichita, Inc. v. City of Wichita, 205 Kan. 537, 471 P. 2d 360. However, the governing body does not possess such plenary powers so as to pass legislation which is arbitrary, oppressive, or so capricious that it has no reasonable basis. In tíre Overland Park case an ordinance of similar purport was held to have the effect of prohibiting the conduct of the appellee’s business, and was void.
The appellees introduced substantial evidence that the operation of the jeeps and the conduct of their business did not constitute a traffic hazard. There were adequate safeguards shown. The manner in which sales were consummated clearly indicated that Delight Wholesale’s business was legitimate, and did not present a threat to the health, safety, or morals of the citizens of Prairie Village. We do not say the evidence as presented could not have been rebutted. Had the appellant proffered the engineering and traffic studies upon which it was asserted the ordinance was based, and from which unsafe conditions were “found to exist,” the balance might have tipped in favor of the appellant. Instead, the City was content to introduce no evidence, and relied solely upon statements of counsel, which had no evidentiary value. If such study and investigation was in fact made, the appellant did not give the district court the benefit of the data and information obtained therefrom, and thus no evidence for the appellees to impeach. The appellant had full opportunity to introduce evidence, and when it failed to do so, the district court was left with nothing to consider but the appellee’s evidence.
The appellant’s attempt to distinguish the case at bar from the Overland Park case is a shallow gesture. The alleged traffic hazards advanced by the appellant in the instant case are identical to those advanced by the City of Overland Park. The recitations of justification for the enactment of Ordinance No. 1154 do not obscure its plain effect of prohibiting Delight Wholesale’s conduct of a legitimate business operation, and we see no appreciable difference in this ordinance that would distinguish it from the Overland Park case. Where, as here, the legitimate exercise of police power is challenged by substantial evidence which the trier of fact finds has destroyed the presumption of its valid exercise, the City is required to go forward with the burden of persuasion and establish the substantial relationship of the regulation to the health, safety, or morals of the community. As the record indicates, the appellant made no attempt to sustain that burden.
The judgment is affirmed.
O’Connor and Prager, JJ., not participating. | [
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The opinion of the court was delivered by
Fontron, J.:
This is an appeal by the plaintiff, Clayton W. Logan, from a judgment entered in favor of the defendant, Johnnie D. McPhail, after the trial court had removed the case from the jury. Logan had sued to recover damages for severe personal injuries suffered in a collision between his vehicle going south on Bickel Street in the city of Wichita, Kansas, and a vehicle driven by McPhail as it was leaving the north bound exit ramp from 1-235, the traffic on which was controlled by a stop sign. The right front bumper of the McPhail vehicle struck the right rear fender of Logan’s automobile, throwing the latter against a sign post and into the opposite lane of traffic where it hit an oncoming car. We shall refer to the parties as plaintiff, or Logan, on the one hand and defendant, or McPhail, on the other.
At the trial, evidence was produced to the effect that Logan was traveling in a normal manner at the posted speed of 40 m. p. h. and that just before the collision, he swerved from the outside right lane of traffic where he had been driving to the inside lane. There was testimony that defendant did not come to a complete stop at the stop sign guarding Bickel Street, although he himself testified otherwise. The defendant was frank in testifying that he did not see the Logan vehicle until it flashed right in front of him, although the evidence is undisputed and admitted by the defendant himself, that from the ramp a driver could see, without obstruction, a distance of two blocks in the direction from which Logan was coming.
After the plaintiff had called his witnesses — four in number — to testify on the issue of liability, the following colloquy took place in the jury’s presence:
“The Court: Call the next available witness, please.
“Mr. Koemer: There are no available witnesses except Dr. Miller. I can call him if the Court takes a recess to see if he can come down. As I informed the Court, Dr. Miller asked to be on at 9:30 in the morning.
“The Court: Is the Plaintiff not present?
“Mr. Koemer: I choose not to use him.
“The Court: A motion is in order for a dismissal of the lawsuit for failure of Plaintiff to have witnesses available.
“Mr. Fry: I would so move, your Honor.
“The Court: Does the Plaintiff want to call the available witness?
“Mr. Koemer: I would like an opportunity to call Dr. Miller.
“The Court: Is Dr. Miller present?
“Mr. Koemer: He is under subpoena to this Court, and by statement to your Honor this morning, you indicated it would be all right for him to come at 9:30 in the morning. Since it is this early in the afternoon, I would like permission to call him and get him down here.
“The Court: This motion will be sustained unless the Plaintiff calls a witness in the courtroom that is available.
“Mr. Koemer: Would you take the stand, please? (Mr. Koemer motioned to Mr. Logan, the Plaintiff.)”
The plaintiff phrases his first point on appeal in this fashion: “It was error for the trial court to order that plaintiff testify under threat of dismissal.”
A trial court must of necessity be afforded much latitude in the control of its docket to eliminate procrastination and delay and to expedite the orderly flow of its business. The massive increase in litigation which is common today in this country might well engulf our judicial system to the point of strangulation if courts were not possessed of authority to cleanse their dockets of ancient cases and to dispose, in somewhat summary fashion, of those matters which are not being timely and diligently prosecuted. More than once this court has encouraged the weeding out of stale and dormant cases in the interest of the prompt and orderly dispatch of judicial business. (City of Wichita v. Houchens, 184 Kan. 297, 335 P. 2d 1117; City of Wichita v. Catino, 175 Kan. 657, 265 P. 2d 849; Carter v. State Department of Social Welfare, 186 Kan. 187, 348 P. 2d 609.)
However, the power of a court to dismiss a lawsuit for lack of prosecution is not without limitation. Its authority must be exercised within the bounds of a sound judicial discretion. In Reddington v. Rank, 176 Kan. 484, 271 P. 2d 807, it was said:
“. . . [I]t is highly important that the drastic procedure of dismissing an action involving rights of a citizen should be exercised with utmost care. . . .” (p. 490.)
In our considered opinion the permissible limits of judicial discretion were exceeded by the court in this case. The situation before the corut was not one where the plaintiff had been absent at the call of the docket, which was the situation obtaining in Wichita v. Houchens, supra, or where he was missing on the date his case had been set for trial, as in Wichita v. Catino, supra, and Carter v. State Department of Social Welfare, supra. In the instant case, plaintiff had subpoenaed his witnesses and was personally present and represented by counsel on the day set for trial. He was all ready to go, and he did proceed with the presentation of his case to the point that only his medical testimony remained.
It is quite true that the plaintiff’s medical witness, his own doctor, was not on hand when the time came that afternoon to call another witness, but plaintiff can hardly be faulted for that if the corut had indicated it would be satisfactory for the doctor to testify the following morning. Moreover, the plaintiff offered to call the doctor, if the court would take a recess, to see whether the doctor could come down. This offer, so far as the record shows, drew no response.
The case of Bane v. Cox, 75 Kan. 184, 88 Pac. 1083, bears considerable analogy to the case at bar and we believe the decision is sound. In that case the plaintiff and his witnesses lived in Chicago. Plaintiff’s principal counsel, originally, was elected to the bench, and the lawyer who subsequently took charge of the case had no opportunity to consult with plaintiff or talk with his witnesses. A good faith effort had been made to secure depositions. When this faffed, the plaintiff started to Kansas with his witnesses and had reached Kansas City, and telegraphed his attorney accordingly, before the case was called for trial in the afternoon. Counsel for plaintiff advised the court to this effect and requested a continuance until the following morning. This request was refused and the case was dismissed. The next morning the plaintiff requested a reinstatement of his case but this likewise was rejected. On appeal, this court held that under those circumstances the trial court’s action seemed extreme and was, in short, an abuse of judicial discretion.
We believe it was an abuse of discretion under the prevailing circumstances for the court to threaten dismissal “unless the Plaintiff calls a witness in the courtroom that is available.” The “witness in the courtroom” could refer only to the plaintiff himself, whom counsel had not intended to use for reasons which he deemed sufficient. In our opinion the judicial prerogative does not go so far as to compel a litigant to testify in his own behalf under threat of losing his lawsuit. Nor, may we add, should the trial court attempt to dictate to a litigant what witness or witnesses he must call.
After the plaintiff had finished testifying — to keep his case from being thrown out of court — the jury was dismissed until 9:30 the next morning, at which time Dr. Miller was scheduled to testify. However, as it turned out he was five minutes late. At 9:30 the court addressed itself to the jury in a statement which we quote in full:
“The Court: Gentlemen of the Jury. For some reason, unknown to this Court, there seems to be a considerable reluctance on both sides to try this lawsuit. It is possible that the paucity of evidence has created the uncertainty. Yesterday it was necessary that the Court threaten dismissal of the lawsuit in order to compel the Plaintiff to call a witness who was available in order to prevent losing the entire afternoon from trial. As it was, almost the entire afternoon was lost anyway. At conference with counsel, while the jury was waiting, the Court tried various suggestions after Plaintiff had announced it was resting on liability to use part of the time for the hearing of a motion for judgment for the Defendant, which was said was going to be made by the defense, even counsel for the defense seemed reluctant or not anxious to pursue such a motion. So, we lost most of the afternoon yesterday. This morning it is stated the next witness for the Plaintiff is not present. The Court, under these circumstances, feels compelled to move and does move that judgment be rendered in favor of the Defendant for failure of the Plaintiff’s evidence to have produced a cause of action against the Defendant. The Court finds Plaintiff’s evidence has not produced proof from which the jury could reasonably infer negligence on the part of the Defendant.
“Mr. Koemer: If I may interrupt, Dr. Miller is here.
“The Court: There is no proof that the Defendant failed to stop at the stop sign or did anything else to constitute negligence under the law. In addition to that the Plaintiff’s own testimony shows he was careless and negligence [sic] in his approach to this intersection. He at first said he saw nothing and then later admitted he saw the automobile — saw the other automobile but we don’t know where. So what this means is the jury is called upon to speculate and speculation is not permitted. Therefore, judgment is rendered in favor of the Defendant. The costs of bringing this jury to the courthouse for the trial of this lawsuit are also to be taxed against the Plaintiff: that is, yesterday some thirty jurors reported and remained while a jury was being selected, and each was paid $5.00, so that amounts to $150.00. And it will be necessary to pay these 12 jurors another $60.00 today, making a total of $210.00. These costs are added to the Clerk’s Costs and taxed to the Plaintiff. The jury is now discharged from this case and from further service on your summons.”
The plaintiff complains of this ruling and we believe his complaint has merit. It is a familiar and elementary rule of law that in ruling on a motion for dismissal, or for a directed verdict, at the conclusion of the plaintiff’s evidence (which in this case had not actually been concluded) the court is not to weigh the evidence but is to accept as true all facts which the evidence tends to prove in favor of the party against whom the motion is made, together with all inferences that may reasonably be drawn therefrom, and where reasonable minds might reach different conclusions from the evidence, the motion to dismiss should be denied and the case submitted to the jury. (Springfield Tent & Awning Co. v. Rice, 202 Kan. 234, 447 P. 2d 833; Lord v. Jackman, 206 Kan. 22, 476 P. 2d 596; Noland v. Sears, Roebuck & Co., 207 Kan. 72, 483 P. 2d 1029.)
How does the evidence relating to the defendant’s negligence in this case square with the rule? The defendant testified there was nothing to obstruct his view for a distance of two blocks in plaintiffs direction (and this was corroborated by the investigating police officer) yet he never saw the plaintiff’s car until it flashed in front of him. It is a rule of long standing that a motorist is required to keep a proper lookout for traffic and is bound to see that which he could and should have seen. (Blakeman v. Lofland, 173 Kan. 725, 731, 252 P. 2d 852, and cases cited therein.)
There was evidence in this case that the defendant did not come to a full stop at the stop sign as was required by law, and this alone would constitute evidence of negligence. But had the defendant fully stopped, he would not be absolved of negligence as a matter of law. K. S. A. 1971 Supp. 8-552 (b) not only requires the driver of a motor vehicle approaching a stop intersection to stop before entering the intersection, but it also directs that the driver, having stopped, shall yield the right-of-way to any vehicle which has entered the intersection or which is approaching so closely as to constitute an immediate hazard during the time the driver is moving across or within the intersection. The point of impact and the manner in which the two cars collided would present, at the very least, a question of fact as to whether Logan s vehicle was in such close proximity to the intersection as to constitute an immediate hazard when McPhail drove his car into the intersection. We conclude there was sufficient evidence as to the defendant’s negligence to require that this issue be submitted to the jury.
We have reached a similar conclusion with respect to contributory negligence. The court stated that “the Plaintiff’s own testimony shows he was careless and negligence [sic] in his approach to this intersection. He at first said he saw nothing and then later admitted he saw the automobile — saw the other automobile, but we don’t know where.” The corut neglected to mention however that plaintiff s memory was hazy as to what occurred immediately before the collision and that he could not remember all the details. We are advised that Logan developed mental problems requiring extended care following the accident. For that reason counsel decided not to place his client on the stand; it was an important part of his trial strategy that Dr. Miller be permitted to testify as to Logan’s mental state as it affected his memory. We believe the court acted precipitately in denying the doctor a chance to testify. True, he was not on hand on the stroke of 9:30 but he appeared before the court concluded its remarles, and the court was so advised. Ry ignoring the doctor’s presence and dismissing the case after his arrival the court acted injudiciously. In Hodges v. Lister, 207 Kan. 260, 485 P. 2d 165, we held that the plaintiff in a negligence action is entitled to present all his evidence bearing on the material issues before a motion for directed verdict should be entertained.
Quite apart from the foregoing circumstances, we believe the trial court erred in holding that plaintiff was guilty of contributory negligence as a matter of law. There was abundant evidence that Logan saw McPhail’s vehicle prior to the accident. He so testified, and disinterested witnesses observed him swerve and change lanes before being hit. Our rule long has been that the operator of an automobile may assume that other motorists using the streets will comply with the law of the road and he is not chargeable with negligence in acting upon that assumption until he has knowledge to the contrary. (Keir v. Trager, 134 Kan. 505, 7 P. 2d 49, 81 A. L. R. 181; Gardner v. Pereboom, 197 Kan. 188, 416 P. 2d 67.) It is equally well settled that one is not guilty of negligence as a matter of law in not looking for danger where there is no reason to apprehend it. (Wilson v. Cyrus, 180 Kan. 836, 308 P. 2d 98; Harbaugh v. Darr, 200 Kan. 610, 438 P. 2d 74.) Under the testimony and the physical facts of this case, we believe the question of contributory negligence should have been submitted to the jury.
Plaintiff’s final complaint relates to the taxing of costs. In assessing costs against the plaintiff, the trial court included jury fees. This action was clearly unjustified, as we recently held in Hodges v. Lister, supra. We need not repeat what was said in Hodges; the rationale of that decision is clearly outlined therein and is accessible to anyone sufficiently interested to read the opinion.
The judgment of the court below is reversed with directions to grant a new trial. | [
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|
The opinion o£ the court was delivered by
Fontron, J.:
This is a consolidated appeal from judgments entered in favor of the defendant, International Harvester Company (sometimes referred to as International) in four separate products liability actions brought individually by Donald D. Tilley, Frank V. Kincaid, Carolyn Kincaid and Vicki Decker. These parties have appealed and will be referred to collectively as plaintiffs.
Since the points raised on appeal relate primarily to matters of procedure and instructions, a detailed statement of facts will not be required at this time. The lawsuits grew out of an accident occurring the night of December 7, 1964, on U. S. highway 56 a short distance east of Great Bend, when the right rear wheel on Mr. Tilley’s International truck broke down as he was hauling a load of cattle from Boulder, Colorado to Carthage, Missouri. As the wheel gave way, the truck turned over on its right side almost blocking the road. Tilley attempted to warn an approaching vehicle but was unable to stop it in time and it crashed into the disabled truck. The driver of the car, Frank V. Kincaid, and his two passengers, Carolyn Kincaid and Vicki Decker received personal injuries.
Originally the plaintiffs filed their actions against both Keller Truck & Implement Corporation, which had sold the truck to Tilley, and International Harvester Company. The trial court sustained a motion to quash the service against Keller and the actions were dismissed against it. On appeal to this court, the dismissals as to Keller were upheld. (Tilley v. Keller Truck & Implement Corp., 200 Kan. 641, 438 P. 2d 128.)
Although immaterial to our decision in this case, we have been advised that plaintiffs later brought suits in Colorado against Keller but that those actions were later dismissed for lack of prosecution and on appeal the dismissals were affirmed.
The four instant cases were consolidated for trial in tihe district court of Barton County, and trial was commenced March 10, 1969, as to liability. The jury returned a special verdict in which it found that International had committed no breach of warranty or act of negligence culminating in injury or damage to plaintiffs.
Four claims of error are presented on appeal. The first two may be discussed together, the contention being that the trial court abused its discretion (1) in curtailing the discovery of defendant’s expert witnesses and permitting them to testify and (2) in denying a continuance. The background of those complaints must be sketched.
A preliminary pretrial conference was held May 29,1968, at which time the court ruled that on or before August 1st, the parties were to exchange reports of their experts, including their findings and conclusions regarding the alleged defects in the wheels of the Tilley truck; that at the time of exchange the plaintiffs were to specify with particularity what standards they were using to support their claim that the bolts on the wheels of the truck were below usual strength; that if defendant’s motion for summary judgment was overruled prior to the next pretrial conference, the plaintiffs and defendant, within a reasonable time, were to exchange names of witnesses and exhibits they believed would be used at the trial, but neither would be bound by the list which should be submitted in its entirety at the next pretrial conference. The court also indicated the cases might be such that they should be “split-tried” and such question would be discussed at the next pretrial.
The second pretrial conference took place December 12, 1968. On this occasion, one of the defendant’s lawyers stated he was unable to supply the names of his expert witnesses until he could go to Fort Wayne and interview the people there. Being queried by the court if he could inform opposing counsel in fifteen days, the attorney stated that the time suggested was too short, considering the upcoming Christmas holidays. The court thereupon ruled that defendant should supply the names in such time that plaintiffs would have a chance to depose them if the need were felt. The parties agreed that the names should be set forth in the pretrial order which defendant’s counsel was to prepare.
On January 8, 1969, counsel for plaintiffs requested that the case be set for trial and the court designated March 10, 1969, as the date. The names of defendant’s experts were not made known to plaintiffs until February 20, or 21, 1969, when counsel received the pretrial order listing them. On March 4 a hearing was held before the court, where it developed that in August the plaintiffs had been furnished the reports of International’s own experts, and hence their names had been known for some time, even though plaintiffs had not deposed them. Counsel for plaintiffs thereupon withdrew their request that those witnesses be made available for pretrial deposition.
However, the court did rule that whatever witnesses the defendant expected to use from the Budd Company (two were listed) be made available for deposing on the Tuesday night before they were to testify; that the depositions be taken at their motel; that direct examination of each be limited to one hour and cross-examination to twenty minutes; and that copies of their reports be furnished to plaintiffs’ counsel beforehand. After entering these orders, the trial court overruled plaintiffs’ motion for continuance.
On Tuesday evening, only one of the Budd witnesses showed up, a Mr. Twisdom. His deposition was taken pursuant to the rules laid down by the court. Subsequently, Twisdom appeared at the trial and testified. It may be noted at this point that plaintiffs’ interrogation of Twisdom, in deposing him, related almost entirely to the contents of a Budd Company manual and little, if any, to his report. When the defendant called Twisdom as its witness, plaintiffs moved to suppress his testimony. That motion was overruled subject to the qualification laid down by the court that plaintiffs’ counsel would be allowed more latitude than usual on cross-examination.
With this lengthy background out of the way, we may turn to the first two questions on appeal, the gist of which have already been stated.
In the official reports of this court many decisions can be found relating to judicial discretion and the bounds of its exercise. In Willoughby v. Willoughby, 178 Kan. 62, 283 P. 2d 428, it was said of judicial discretion that it implies the liberty to act as a judge should act, upon fair judicial consideration, and not arbitrarily. The Court of Appeals for the Tenth Judicial Circuit, in Atchison, Topeka and Santa Fe Railway Co. v. Jackson, 235 F. 2d 390, described judicial discretion in these words:
“. . . The term discretion when used as a guide to judicial action means sound discretion exercised with due regard for that which is right and equitable under the circumstances. It means discretion directed by reason and conscience to a just result, and it frequently involves painstaking consideration of many factors, giving to each the weight to which it is appropriately entitled. . . .” (p. 393.)
Our cases are many to the effect that upon appellate review the discretionary orders or rulings entered by a trial court will not be overturned or set aside in the absence of a clear abuse of discretion. (See cases in 1 Hatchers Kansas Digest (Rev. Ed.) Appeal & Error, § 444 et seq.) This legal principle must be our guide as we direct our attention to the rulings made by the court in this case.
Overall, we may say at this point that we have not been able to find anything in the record which, in our view, would justify a finding that the court abused its discretion.
K.S.A. 60-230(h) (now K. S. A. 1970 Supp. 60-230[&]) relates to depositions upon oral examination and provides, so far as material, that the judge may make any order which justice requires to protect the party or the witness from annoyance, undue expense, embarrassment or oppression and that this power is to be liberally exercised toward the accomplishment of its purpose to protect parties and witnesses. The statute was patterned after Rule 30, Federal Rules of Civil Procedure.
Since these actions were tried, both K. S. A. 60-230 and Federal Rule 30 have been revised, but without substantial change so far as the issues here are concerned. In 2A Barron & Holtzoff, § 715, p. 231, we find this statement with respect to Federal Rule 30 (before revision): ,
“. . . These provisions give the court broad power to control the use of the discovery process and to prevent its abuse, and the exercise of this power is in the sound discretion of the court.”
To similar effect, see Wright & Miller, Federal Practice and Procedure: Civil, § 2116, p. 427.
In ruling on plaintiffs’ request that defendant be required to produce, for pretrial deposing, the experts it proposed to use from Budd, the court was entitled to consider, among other matters, that Budd was not a party to this lawsuit and that International was not in a position to control its employees or to compel them to come to Great Bend at its beck and call; that inconvenience to the Budd Company and to the witnesses themselves might result if the latter were tied up in Great Bend for a few extra days; that additional expenses would be incurred; that should the depositions consume the full time allotted, several hours would be consumed, tying up lawyers and witnesses who must be ready for court next morning, and leaving but a few short hours for transcription of the testimony. As it turned out, Mr. Twisdom alone showed up, but when the court made its ruling two experts had been expected.
It should be kept in mind, also, that reports from both prospective witnesses were to be provided beforehand in order that counsel might have an opportunity to become familiar with their expected testimony. Finally, it is important to remember that when plaintiffs objected to Twisdom’s becoming a witness for defendant, the trial court stated that greater latitude than usual would be extended on cross-examination.
Plaintiffs have made much of a contention they were taken by surprise by Twisdom’s testimony and thus were prejudiced. In this connection we should point out that no attempt had been made to depose the experts among International’s staff on the subject of the wheel assembly, even though plaintiffs had received reports from three of them in August. Twisdom’s assessment of what caused the wheel to collapse appears to have been in basic agreement with International’s own experts. Here it might be well to interject that as we read the record, the dispute between the opposing experts finally boiled down to whether the bolts gave way to metal fatigue because they were overtorqued, or under-torqued. In any event, we find it hard to apprehend how Twisdom’s testimony could have come as any great surprise.
It has often been said that the granting or refusal of a motion for continuance rests within the sound judicial discretion of the trial court and its judgment will not be disturbed on appeal in the absence of a clear showing of abuse. (2 Hatcher’s Kansas Digest (Rev. Ed.) Continuance, § 1.) This rule is now embodied inK. S. A. 60-240.
Two pretrial hearings had been held in this case. On January 8, 1969, plaintiffs requested that the case be set for trial, although they knew some witnesses were not listed. That was nearly two full months before the continuance was sought on March 4, six days before trial was to commence. The court, and no doubt counsel, had scheduled their times accordingly. Arrangements had been made for the attendance of many out-of-state witnesses and they had made plans to attend. These were significant factors to be weighed in considering the motion and the court cannot be faulted for its decision.
This case was bitterly fought from stem to stern. Heated exchanges took place between capable counsel. Time does not permit, nor would this opinion gain in stature by a recitation of ihe several disagreements at which a beleagured court was required to officiate. Taking an overall view of the situation, we are obliged to conclude that the trial court, under trying circumstances, retained its judicial composure and that its sound discretion was not abused.
It is next argued that the court erred in trying this action as a “split-trial” case. The statute under which the court made its ruling is K. S. A. 60-242(&) (now, as amended by Supreme Court Rule, K. S. A. 1970 Supp. 60-242[b]). This section of the code provides, so far as material at this time, that the judge in furtherance of convenience or to avoid prejudice may order a separate trial of any claim or issue. The statute is drawn from Federal Rules of Procedure No. 42. (Scott v. Keyse, 200 Kan. 625, 438 P. 2d 112.) Professor Moore in commenting on the federal rule, (5 Moore, Federal Practice, 2d Ed. 1969, ¶42.03 at 42-41, 42-42.) states:
“. . . Separate trial may properly be ordered on the issue of the defendant’s liability to respond in damages, particularly where plaintiff’s proof of damages would involve the testimony of a large number of persons.
We find this language peculiarly pertinent to the situation at hand, in view of the fifteen doctors whom plaintiffs had listed as witnesses..
This court has said in previous decisions (see, Thomas v. Kansas City Southern Rly., 197 Kan. 747, 755, 421 P. 2d 51; Guy Pine, Inc. v. Chrysler Motors Corp., 201 Kan. 371, 373, 440 P. 2d 595) that the legislative intent behind K. S. A. 60-242 (b) leaves to the discretion of the trial court the decision whether or not issues should be separated for trial.
The decision to try these cases on a split-level basis was not hastily nor covertly made. At the pretrial hearing in May, the judge indicated the trial might be split and that this question would be discussed at the next conference. On December 12th the court announced it would defer decision of the matter depending on the complexion of the case as it progressed, but would hear evidence as to liability first before determining whether to admit evidence as to damage or to submit the liability issue alone to the jury, and that a one-day recess would be granted should the court decide to admit damage testimony.
In response to the court’s tentative proposal to try the issues separately, plaintiff’s counsel replied he would not agree at that time; he might or might not agree, depending on how the trial had gone on the liability issue. In their opening statement, plaintiffs advised the jury that the issues would be split, with liability first to be tried, and that damage evidence would then be presented if the jury found liability on the part of the defendant. The record reflects that while both sides moved for judgment at the conclusion of all the evidence, and plaintiffs asked that the issue of damages alone be submitted, neither side expressed or renewed any objections to the split-trial procedure when the case was finally submitted to the jury.
The plaintiffs argue they were prejudiced by the separation of issues because the lapse of time between accident and trial had erased all outward signs of physical injuries. We are not impressed with this argument. Moreover, instead of voicing an objection to the split trial, the plaintiffs played cat and mouse, delaying their decision until they could observe how the trial was progressing, and at a later point in time actually appearing to acquiesce in the split-trial procedure. They are now in no position to complain of a split trial, after engaging in “wait and see” tactics.
Finally, the plaintiffs complain of two instructions. The first, instruction 7, reads:
“A manufacturer selling a motor vehicle for use as such impliedly warrants that it is reasonably fit for such purpose, at the time it left the manufacturer.
“A manufacturer who breaches this warranty is liable to a person who sustains injury as a result.
“In this case, there would be an implied warranty by the defendant corporation that the truck sold to plaintiff Tilley was reasonably fit for the uses customarily made of a truck of that size and type as of the time it left tire defendant’s place of business in Denver.”
The plaintiffs aim their objection at the final paragraph. They contend that the implied warranty of fitness attached to Tilley’s truck at the time it left Keller’s place of business.
We find no fault with the instruction. The language which is criticized closely follows our decision in Evangelist v. Bellern Research Corporation, 199 Kan. 638, 433 P. 2d 380, where, on page 646, we said:
“Only recently we had occasion to point out that irrespective of the theory of recovery — negligence or implied warranty — a prerequisite to recovery against a manufacturer for a defective product is that the plaintiff must show the product was defective at the time it left the manufacturer’s control. (Jacobson v. Ford Motor Co., 199 Kan. 64, 427 P. 2d 621.) The rule is well stated in Gardner v. Coca-Cola Bottling Co., 267 Minn. 505, 127 N. W. 2d 557:
“ ‘Before liability can result from a breach of an implied warranty there must be proof from which an inference is permissible that the product was defective. In Prosser, Torts (2 ed.) § 84, p. 509, we find the following:
“ ‘ “. . . The existence of the warranty of course does not eliminate the necessity of proof that the product was defective when it left the defendant’s hands; . . (p. 510)
“Also, see Anno. 81 A. L. B. 2d 259. Thus, it may he said as a general rule that there must be evidence from which it may reasonably be inferred that the defect existed at the time the product left the possession or control of the party sought to be held liable.”
The truck in question was purchased by Mr. Tilley from Keller Truck and Implement Corporation in a deal involving a trade. The Keller Company is a dealership handling International products and it obtained Tilley’s truck from International’s branch office in Denver. The truck itself was taken by Keller to its place of business where it was given a dealer’s checkup before being delivered to Mr. Tilley.
We believe the instruction was properly given. The truck had passed from defendant’s control when it was removed by Keller, the dealer, and taken to its own business place.
The other challenged instruction, No. 12, concerns the duty of the buyer to use ordinary care for his own safety and protection. The substance of the instruction, which is taken from PIK 13.06, is not attacked, but the plaintiffs urge it had no place in this case and should not have been given. They point to what is contained in the “Notes on Use” which follow the PIK instruction, where it is said that 13.06 should be preceded by PIK 4.01, which deals with contributory negligence, and is applicable only where liability is predicated on negligence, and the defendant contends that the buyer failed to observe dangerous condition or failed to use the product according to directions or used it in an abnormal manner.
We need not decide whether it was proper to give the instruction in this case, for the jury absolved the defendant of negligence. Hence, the question of contributory negligence becomes immaterial and the instruction cannot be deemed prejudicial.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Foth, C.:
The main issue in this case is the effect of a wife’s lack of consent to her husband’s will which totally disinherits her if they both die “at or about the same time as the result of a common disaster.”
Asa Lee Messenger (known as Lee) and his wife, Juanita, both died as the result of an automobile accident on July 27, 1968. They had been married about seven years.
Lee, who was sixty-three at the time of his death, left as his closest kin three sisters and a brother, who was to be his executor and the appellee herein.
Juanita was survived by an adult daughter by a previous marriage, Mrs. Millicent J. Dunaway, who became administratrix of her estate and as such instituted the various proceedings which culminated in this appeal. Mrs. Dunaway, as administratrix of her mother’s estate, is the appellant.
On August 13, 1968, Lee’s will was offered for and admitted to probate. His brother and sisters all entered their appearance and waived notice of the probate hearing; no formal notice of any kind was given.
In its order admitting the will the probate court found that Lee and Juanita “were both killed instantly and both died simultaneously” as a result of the automobile accident. It is this finding that appellant has most bitterly contested throughout these proceedings.
By paragraph 2 of his will Lee left his stock in the family business in trust for the benefit of Juanita during her lifetime, and on her death to those of his brother and sisters who survived her. In paragraph 3 the residue was left to Juanita outright. All this, however, was subject to a common disaster clause:
“Fourth: In the event that my wife, Juanita Messenger, should predecease me or should she and I die at or about the same time as the result of a common disaster, accident or casualty, then Paragraphs Second and Third of this my will shall become null, void and of no effect and I give, devise and bequeath my entire estate, after the payment of debts and expenses as provided in Paragraph First hereof unto such of my brother and sisters, to-wit: John D. Messenger, Pearl H. Koontz, Helen R. Messenger and Margueritte J. Messenger, as shall have survived me, in equal shares, per capita and not per stripes.”
Juanita had not consented to the will during her lifetime, and this fact rounded out appellant’s various claims on Lee’s estate.
The first proceeding brought on behalf of Juanita’s estate was a declaratory judgment action filed in the district court on May 6, 1969. The essential allegations were that Juanita survived Lee “by several hours,” and had not consented to Lee’s will. As a result it was claimed that Juanita’s estate was entitled to an undivided one-half interest in Lee’s estate. No reason was advanced for this claimed result, but it was apparently based on Juanita’s right as a surviving spouse to elect not to take under the will. (On the other hand, leave was later sought to amend the petition by, among other things, asserting that Juanita’s estate was entitled to take “monies, assets and property under the terms of said Will of her husband.”) Lee’s executor filed a motion to dismiss which was ultimately treated as one for summary judgment.
The second proceeding was filed in Lee’s estate in the probate court the same day as the first, and was originally identical to it in form. Its scope was considerably broadened by a series of successive supplemental petitions, two of which appear in the record, wherein it was urged: that the original order of probate should be vacated because no notice was given to Mrs. Dunaway and for fraud in alleging the two deaths to have been simultaneous and in underestimating the size of the estate; that the will was “illegal, null and void,” apparently for lack of Juanita’s consent; that Lee’s estate had property belonging to Juanita’s estate; that there was evidence that Juanita survived, so the Uniform Simultaneous Death Act was inapplicable; that Juanita’s estate should be permitted to take an out-of-time appeal from the original order of probate; that Juanita’s estate was entitled to all, not just one-half of Lee’s estate; and that if the will was valid Juanita’s estate should take under its terms.
Juanita’s administratrix asked that all her petitions be transferred to the district court, and Lee’s executor countered with a petition to dismiss. On July 7, 1969, the probate court denied Juanita’s estate relief under all petitions and granted the executor’s petition. Its order was appealed to the district court.
The third separate proceeding was a petition for a construction of the will filed in the probate court on July 18, 1969, to which the executor filed defenses. Appellant’s position in that petition was that the will was valid except for the common disaster clause, and hence Juanita’s estate was entitled to everything except the stock placed in trust. On her application this proceeding was transferred to the district court.
In the district court the three cases were consolidated by agreement of the parties. The various pleadings of Lee’s executor were treated as motions for summary judgment, and a hearing was held on February 2, 1970, at which testimony was adduced.
The lcey evidence on behalf of Juanita’s estate was the testimony of a witness to the accident who approached the Messenger car within three or four minutes after the collision, a high speed head-on-crash. It was her opinion that Lee was dead at that time but that Juanita exhibited signs of life. These were that her face was still pinkish, there was some blood coming from her mouth, and as the witness turned away she heard some sort of moan or gurgle which she thought came from Juanita. A passing doctor who arrived about ten minutes later pronounced them both dead. The deputy coroner who arrived about an hour later was unable to say whether the deaths were simultaneous, but described Juanita’s injuries (a crushed skull) as such that it would have been impossible to revive or rescucitate her, and as being “incompatible with life.”
The district court took the matter under advisement and on April 9, 1970, made the following findings:
“1. That the deaths of Asa Lee Messenger, deceased, and Juanita Messenger, deceased, occurred on July 27, 1968, at or about the same time as a result of a common accident and, therefore, Paragraphs 2 and 3 of the Will of Asa Lee Messenger became void and of no effect and Millicent J. Dunaway was not, therefore, an heir, legatee or devisee under the Will.
“2. That the notices required by law to be given concerning the hearing on the Petition for the Probate of the Will, and other proceedings held in the Probate Court were properly given and further that no notice of Millicent J. Dunaway, Administratrix of the Estate of Juanita Messenger, deceased, was required because she was not an heir, devisee or legatee under the terms of the Will.
“3. That the right to elect against the Will is personal to the spouse and does not pass to the heirs at death and that no election ever having been filed, even by the Estate of Juanita Messenger, the six months period in which to make such election has passed, and therefore, the Estate of Juanita Messenger has no interest in the Estate of Asa Lee Messenger.
“4. That the pleadings filed by Millicent J. Dunaway, Administratrix of the Estate of Juanita Messenger are not claims or demands against the Estate of Asa Lee Messenger, within the meaning of K. S. A. 59-2237, and not being claims, the findings of the Probate Court heretofore made are proper and conclusive.
“5. That the provisions of the Uniform Simultaneous Death Act are not applicable to the Will because the Will makes its own provisions in regard to death at the same time as a result of a common accident.
"6. That the proceedings and findings of the Probate Court relating to the Estate of Asa Lee Messenger, deceased, were in all respects regular and proper and the findings of fact are hereby adopted as findings of this Court.
“7. That the Will of Asa Lee Messenger, deceased, was the duly executed Last Will of Asa Lee Messenger and the same was a valid, effective and legal Will.
“8. The Court further finds from an analysis of the entire Will that no ambiguity or uncertainty exists and there is, therefore, no occasion to employ rules of construction and the Will should be enforced in accordance with its terms and provisions.
“9. That the motions filed by John D. Messenger, Executor of the Estate of Asa Lee Messenger, deceased, are in the nature of motions for summary judgment and are so considered by the Court; that the pleadings and evidence present no genuine issue as to any material fact and the issues are properly determined by summary judgment.
“It Is the Judgment of This Court, based upon the above findings, that the motions for summary judgment of John D. Messenger, Executor of the Estate of Asa Lee Messenger, deceased, should be and the same are hereby sustained. Costs assessed against Millicent J. Dunaway, Administratrix of the Estate of Juanita Messenger, deceased.”
The present appeal is from that order. Appellant has designated thirteen points relied on, many of which are overlapping, and several of which do not touch on the merits. Underlying them all are the following premises: that Juanita in fact survived; that as a surviving spouse she could not be divested by will of more than one-half her husband’s estate without her consent; and that she did not give such consent. Therefore, it is contended, the common disaster clause which deprived her of the entire estate was invalid, or at least her estate was entitled to a surviving spouse’s one-half.
This argument, which is the core of appellant’s case, will not withstand analysis.
Taking the evidence in the light most favorable to the appellant, the trial court could have found that Juanita survived by at most thirteen or fourteen minutes — three or four until the witness arrived at the scene, ten more until the passing doctor arrived. The trial court was content to find that Lee and Juanita died “at or about the same time,” since this was all that was necessary to bring the common disaster clause of the will into play. Juanita’s survival may thus be conceded arguendo, and her lack of consent to the will is not an issue. What was her position as a surviving spouse?
Under K. S. A. 59-603 she was entitled to make an election to take what she would be entitled to under the laws of intestate succession; the election had to be made within six months after probate, by virtue of K. S. A. 59-2233. Prior to 1951 her failure to elect would have resulted in her taking against the will, but in that year both statutes cited were amended (L. 1951, ch. 335) to make the result of inaction by the surviving spouse an election to take under the will. Here, obviously, there was no election filed by Juanita during her lifetime, and we have implicitly recognized the general rule that the right to make such an election is a personal privilege which does not inure the heirs or personal representative of the surviving spouse but dies with him. In re Estate of Henderson, 176 Kan. 168, 172, 268 P. 2d 941. And see, 97 C. J. S. Wills § 1246; 57 Am. Jur., Wills §§ 1530, 1531.
Appellant cites no authority for the proposition that mere lack of consent invalidates a will or any portion thereof, or has any effect other than to give the survivor the right to make the statutory election. A surviving spouse may be totally and unconditionally disinherited without affecting the validity of the will — the survivor has a statutory remedy if dissatisfied. Our cases are to the effect that even where such an election is made the will should nevertheless operate on the balance of the estate. Tomb v. Bardo, 153 Kan. 766, 114 P. 2d 320; In re Estate of Mullin, 201 Kan. 756, 443 P. 2d 331.
The result is that the disinheriting feature of the common disaster clause did not invalidate the will and was itself not invalid.
What has been said disposes of five of appellant’s points (Nos. 1, 10-13), all claiming in essence that summary judgment was premature. The only significant factual issue claimed to be unresolved was whether Juanita survived. Since her rights (and appellant’s derivative rights) were unaffected by a determination of that fact one way or the other, it cannot be said to be a “material” fact so as to prevent the rendition of summary judgment. Secrist v. Turley, 196 Kan. 572, 575, 412 P. 2d 976; Shehi v. Southwest Rentals, Inc., 199 Kan. 265, 428 P. 2d 838.
It likewise disposes of the point (No. 2) that the common disaster clause couldn’t deprive Juanita of her interest because she hadn’t consented; such consent was unnecessary.
Two points (Nos. 3 and 8) relate to the fact that appellant, who was Juanita’s sole heir, was given no notice of the hearing on the petition to probate Lee’s will. K. S. A. 59-2222 requires notice unless waived. Those who can waive (and hence are entitled to notice) are designated in K. S. A. 59-2223 as “the parties interested as heirs, devisees, and legatees.” As to Lee Messenger, appellant was none of these. To this may be added that she has never claimed to have any defense to the probate of the will or any objection to any part of it except by way of the “no consent” argument disposed of above. As stated in her brief, “The plaintiff recognizes the Will except for the construction given it by the district court which, in effect, allows a husband to disinherit his wife by inserting a common disaster clause in his Will.”
Her position likewise renders academic appellant’s point No. 7, claiming the evidence at the original probate hearing was insufficient.
She asserts (as point No. 5) that the district court erred in finding that her assorted pleadings in the probate court were not a “claim” within the meaning of the nonclaim statute, K. S. A. 59-2239. The bearing of this finding on the ultimate result is obscure, although if they had constituted a claim the matter should have been transferred to the district court in the first instance under K. S. A. 59-2402a. In any event, the pleadings did not disclose any liability or obligation existing or accruing during Lee’s lifetime, but rather an assertion of Juanita’s right to inherit. Such a right is not a “claim” against an estate. In re Estate of Lytle, 184 Kan. 304, 336 P. 2d 803; In re Estate, of Welch, 167 Kan. 97, 204 P. 2d 714. A right to inherit stems from an entirely different source than a right asserted under an antenuptial contract, such as that considered in In re Estate of Sterba, 193 Kan. 56, 392 P. 2d 136, relied on by appellant.
We have examined appellant’s three other contentions, relating to alleged inconsistencies in the trial court’s findings, its alleged refusal to recognize its jurisdiction, and its failure to find fraud perpetrated on her. They appear to be without substance.
No error having been made to appear, the judgment is affirmed.
APPROVED BY THE COURT.
Owsley, J., not participating. | [
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The opinion of the court was delivered by
Nuss, J.:
Dale M.L. Denney appeals the district court’s dismissal of his petition for postconviction forensic DNA testing under K.S.A. 2006 Supp. 21-2512 and of various satellite motions. We transferred his appeal from the Court of Appeals pursuant to K.S.A. 20-3018(c).
The issues on appeal, and this court’s accompanying holdings, are as follows:
1. Does an actual controversy exist, warranting review? Yes.
2. Did the district court err in dismissing Denney’s petition for postconviction forensic DNA testing? No.
3. Did the district court err in dismissing Denney’s pro se motions? No.
Accordingly, we affirm the district court.
FACTS
The procedural history was previously set out in State v. Denney, 278 Kan. 643, 101 P.3d 1257 (2004). The summary relevant to the instant matter is as follows:
“Criminal Acts and Convictions
“Case No. 87 CR 944
“In 1987, Denney was convicted of rape and aggravated burglary. His sentences were of indeterminate length, and his sentence begin date was January 7, 1988. He was paroled on July 20, 1992, and was on parole at the times of the offenses described below.
“Case No. 93 CR 1343
“Among other things, Denney held a steak knife against the throat of his sister-in-law, P.D., and penetrated her anus with his penis. Because these offenses occurred in October 1992, the new Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq., did not yet apply. See K.S.A. 21-4723. Accordingly, Denney was charged with, and eventually convicted of a Class B felony, aggravated criminal sodomy; a Class D felony, aggravated sexual battery; and a Class E felony, aggravated weapons violation. The sentences for aggravated sexual battery (6-20 years) and aggravated weapons violations (2-10 years) were to run concurrent with each other but consecutive to the aggravated criminal sodomy sentence of 30 years to life.
“Case No. 93 CR 1268
“After beating and choking his former girlfriend, A.L., and placing a belt around her throat, Denney penetrated her anus with his penis. Because these offenses occurred on July 16, 1993, the KSGA did apply. See K.S.A. 21-4723. These charges were consolidated for trial with the charges in 93 CR 1343. Denney was convicted in 93 CR 1268 of aggravated criminal sodomy (severity level 2 person felony), aggravated battery (severity level 4 person felony), aggravated sexual battery (severity level 5 person felony), and aggravated weapons violation (severity level 9 nonperson felony). The accompanying sentences were to run consecutively, for a total of 228 months. They were also to run consecutive to the sentences of 93 CR 1343.
“This court upheld tire convictions from both 1993 cases in State v. Denney, 258 Kan. 437, 905 P.2d 657 (1995). Additionally, based upon these additional convictions, Denneys parole in 87 CR 944 was revoked on April 15, 1994.
“Motion for DNA testing
“On September 12, 2002, Denney filed a pro se motion requesting that DNA testing be performed in 93 CR 1268 and 93 CR 1343 pursuant to K.S.A. 2003 Supp. 21-2512. The trial court denied the motion without appointing counsel and without oral argument, noting that the statute expressly limits testing to those cases in which an offender has been convicted of rape or murder and that Denney had been convicted of neither.” 278 Kan. at 643-46.
On appeal, this court held that there was no rational basis for allowing postconviction DNA testing for rapists — those convicted of penetration of the female sex organ by the male sex organ when consent is obtained through knowing misrepresentation — and not allowing testing for Denney, who was convicted of aggravated criminal sodomy for penetrating his victims’ anuses with his penis through force or fear. Denney, 278 Kan. at 656. We held that K.S.A. 2003 Supp. 21-2512 violated the Equal Protection Clause because it failed to include Denney’s specific situation.
Rather than nullify the statute, we extended it to include DNA testing for conduct like Denney’s. We also remanded to the district court for further determination of whether Denney met the remaining qualifications for testing under the statute. 278 Kan. at 660-61.
On remand, the district court concluded that because the crimes alleged in 93 CR 1343 — concerning Denney’s sister-in-law — were not reported until months after the episode, no evidence existed that could be submitted for DNA testing. However, evidence was available for testing in 93 CR 1268 — concerning Denney’s former girlfriend — including rape kit swabs, light blue panties, and one blue washrag. Per the court’s order in accordance with 21-2512(c), on March 4, 2005, the evidence was submitted to the Sedgwick County Regional Forensic Science Center (Center) for testing, along with a recent sample of DNA obtained from Denney by law enforcement. The Centers forensic laboratory division is an ASCLD/Lab accredited laboratory. A lab report of the Center s test results was submitted on May 31, 2005.
On July 21, 2005, Denney filed a motion of “Judicial notice of defendant’s DNA expert witness with motion to extend court’s July 22nd & 29th, 2005 hearings and to subpoena DNA expert witness to counter State’s erroneous DNA profile.” In the motion, Denney asserted that he had acquired the services of Dr. Edward Blake of Richmond, California; that Dr. Blake had reviewed the State’s DNA profile; and that Blake “stated said profile is erroneous and inconclusive.”
Despite Denney’s motion to extend, a hearing was held on July 29, 2005. There, the State summarized the Center’s lab report: “[Tjhere’s no — absolutely no question that tire semen detected in the rectal swab of the victim was the defendant’s.” While no DNA testing of the victim’s light blue panties could be done, semen was detected on the blue washrag and the DNA from the sperm cell fraction obtained there was consistent with Denney’s DNA.
The three-page lab report stated that Polymerase Chain Reaction (PCR) DNA analysis had been performed. It specifically provided:
“1. The DNA profile obtained from the sperm cell fraction of the rectal swabs (Q2F2) is a mixture of at least two individuals. The major contributor to this profile is consistent with the profile of Dale M. L. Denney (Kl) and the minor contributor is consistent with [A.L.] (Kl); therefore, Dale M. L. Denney and [A.L.] cannot be excluded as possible contributors to this profile.
“2. The DNA profile obtained from the sperm cell fraction of the cutting from the blue wash rag (Q5C1F2) is consistent with the profile of Dale M. L. Denney (K3), therefore, Dale M. L. Denney cannot be excluded as the source of this profile. [A.L.] (Kl) is excluded as a possible source of this profile.
“3. The DNA profile obtained from the non-sperm fraction of the rectal swabs (Q2F1) is consistent with the profile of [A.L.] (Kl), therefore [A.L.] cannot be excluded as the source of this profile. Dale M. L. Denney (K3) is excluded as a possible source of this profile.”
The report concluded:
“The probability of selecting an unrelated individual at random from the following population groups who:
“Exhibits a profile that is a potential major contributor to the mixture profile obtained from Q2F2 [rectal swab] and exhibits a matching DNA profile with the profile from Q5C1F2 [blue washrag] ... is approximately:
“Caucasian 1 in 120 quinülhon.
“Black 1 in 2.69 sextillion.
“Hispanic 1 in 185 quintillion.”
The State moved to admit the lab report and supporting documentation, including reports of the chain of custody and the recent acquisition of Denney’s DNA through oral swabs. The court admitted the report over defense counsel objections of foundation, best evidence, hearsay, and chain of custody.
Defense counsel also objected to Denney’s absence from the proceedings and asked the court to reserve judgment on Denney’s petition until Denney had the opportunity to hire his own expert to test the DNA evidence. When the court learned that Dr. Blake had not provided a written report nor was he present to testily, it concluded that Denney had no evidence to submit for the court’s consideration.
The State argued that per the plain language of 21-2512(f), because the test results were “unfavorable to the petitioner,” the court was required to summarily dismiss his petition and was without jurisdiction to do anything else. It also argued that outside of the parameters established in 21-2512, Denney at any time could conduct his own DNA testing at his own expense.
The district court dismissed Denney’s petition, stating “the evidence is very clear that this was Mr. Denney’s DNA in the one case [93 CR 1268].” It also dismissed his other pro se motions for lack of jurisdiction, e.g., finding that it possessed no evidence of Dr. Blake’s opinions and therefore could not consider the possibility of another hearing at that time.
The district court also ruled that the DNA evidence would be preserved and made “available to any reputable scientist that wants to evaluate it.” In this vein, it also ruled that if Denney’s family hired Dr. Blake or anyone else and they “like his results better,” Denney could file a motion to reopen the petition. The court sug gested it could be captioned “motion for new trial based on newly discovered evidence.”
Denney timely appealed.
ANALYSIS
Introduction: the statute at issue.
Postconviction forensic DNA testing is governed by K.S.A. 2006 Supp. 21-2512. The statute allows an inmate convicted of certain crimes to request DNA testing after conviction and sentencing, which Denney did in September 2002. The statute 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 tiiat 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 die 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 diat provide a reasonable likelihood of more accurate and probative results.
“(b)(1) The court shall notify the prosecuting attorney of a petition made under subsection (a) and shall afford die prosecuting attorney an opportunity to respond.
(2) Upon receiving notice of a petition made under subsection (a), the prosecuting attorney shall take such steps as are necessaiy to ensure that any remaining biological material tiiat was secured in connection with the case is preserved pending die completion of proceedings under tiiis section.
“(c) The court shall order DNA testing pursuant to a petition made under subsection (a) upon a determination tiiat testing may produce noncumulative, exculpatory evidence relevant to the claim of die petitioner that the petitioner was wrongfully convicted or sentenced.
“(d) The cost of DNA testing ordered under subsection (c) shall be borne by die state or the petitioner, as the court may order in the interests of justice, if it is shown that the petitioner is not indigent and possesses the means to pay.
“(e) The court may at any time appoint counsel for an indigent applicant under this section.
“(f)(1) If the results of DNA testing conducted under this section are unfavorable to the petitioner, die court:
(A) shall dismiss the petition; and
(B) in the case of a petitioner who is not indigent, may assess die petitioner for the cost of such testing.
(2) If the results of DNA testing conducted under this section are favorable to the petitioner, the court shall:
(A) Order a hearing, notwithstanding any provision of law that would bar such a hearing; and
(B) enter any order that serves the interests of justice, including but not limited to, an order:
(i) Vacating and setting aside the judgment;
(ii) discharging the petitioner if the petitioner is in custody;
(iii) resentencing the petitioner; or
(iv) granting a new trial.
(3) If the results of DNA testing conducted under this section are inconclusive, the court may order a hearing to determine whether there is a substantial question of innocence. If the petitioner proves by a preponderance of the evidence that there is a substantial question of innocence, the court shall proceed as provided in subsection (f)(2).
“(g) Nothing in this section shall be construed to limit the circumstances under which a person may obtain DNA testing or other postconviction relief under any other provision of law.” (Emphasis added.) K.S.A. 2006 Supp. 21-2512.
Issue 1: An actual controversy exists, warranting review.
As a threshold matter, the State asserts that Denney fails to present an actual case or controversy. Given this absence, the State argues that this court does not have jurisdiction to rule on his appeal.
Jurisdiction is a question of law over which this court exercises unlimited review. State v. Moody, 282 Kan. 181, 197, 144 P.3d 612 (2006). When the record discloses a lack of jurisdiction, it is the duty of the appellate court to dismiss the appeal. State v. Flynn, 274 Kan. 473, 477, 55 P.3d 324 (2002).
This court discussed the case or controversy requirement in In re M.R., 272 Kan. 1335, 1339, 38 P.3d 694 (2002):
“ ‘ “It is the duty of the courts to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles which cannot affect the matters in issue before the court” ’ [Citations omitted.]”
“ ‘ “ ‘An appeal will not be dismissed as moot unless it clearly and convincingly appears the actual controversy has ceased and the only judgment which could be entered would be ineffectual for any purpose and an idle act insofar as rights involved in the action are concerned.’ [Citation omitted.]” ’ [Citation omitted.]”
The State specifically contends that even if the district court erred in dismissing Denney s petition, the result would be that no evidence of DNA testing would have been considered by the court, and Denney would have remained in prison: “There is functionally no difference between dismissing the petition because the results were unfavorable to defendant versus not admitting the DNA testing results. Either way, the test results no longer have any force or effect in defendant’s case.”
We note that Denney alleges, among other things, that had his purported hearing rights been enforced, e.g., a right to cross-examine the State’s testing witnesses, he may have been able to demonstrate that the results of the DNA results were “inconclusive,” as opposed to “unfavorable,” to him. Contrast K.S.A. 2006 Supp. 21-2512(f)(3) with (f)(1). He argues that a successful demonstration could have then led to a hearing to determine whether there was a “substantial question of innocence” pursuant to (f)(3). We are persuaded this shows an actual controversy exists and therefore consider Denney’s appeal.
Issue 2: The district court did not err in dismissing Denney’s petition.
Denney argues that the district court’s dismissal of his petition for DNA testing on July 29, 2005, was incorrect because the court: (1) failed to allow Denney to confront the individual who conducted tire DNA testing; (2) allowed admission of the lab report in violation of the rules of evidence; (3) failed to allow Denney to be present at the hearing; and (4) failed to allow Denney to present a defense. To the extent resolution of these issues necessitates statutory interpretation, this court’s review is unlimited. Denney, 278 Kan. at 649.
The right to confrontation and the right to be present
In accordance with 21-2512, Denney petitioned the district court for postconviction DNA testing in September 2002. In December 2004, after extending tire statutory protection to cover Denney’s specific conduct, we remanded for the district court to determine if he were otherwise qualified for testing under die stat ute. That court found Denney was qualified. After one victim’s samples were located, the court ordered the testing of the biological material to proceed because it “may produce noncumulative, exculpatory evidence relevant to the claim of the petitioner that the petitioner was wrongfully convicted or sentenced.” K.S.A. 2006 Supp. 21-2512(c). The subsequent DNA testing conducted by the Center’s accredited lab was obviously unfavorable to Denney: 1 chance in 120 quintillion that another Caucasian met the profile.
The fundamental rule to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained. However, when a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be. Denney, 278 Kan. at 650.
When DNA results are unfavorable to a defendant, the statutory procedure is clear: the court shall dismiss the petition. K.S.A. 2006 Supp. 21-2512(f)(1) (“If the results of DNA testing conducted under this section are unfavorable to the petitioner, the court . . . [s]hall dismiss the petition.”); see also Haddock v. State, 282 Kan. 475, 495, 146 P.3d 187 (2006) (statute provides for certain mandatory dispositions and procedural requirements depending upon the results of the additional DNA testing). In this situation, the statute requires no other action, e.g., no hearing, no presentation of witnesses, no cross-examination. Indeed, the statute is silent on how the district court is to receive the DNA testing results. The plain language of the statute only requires a hearing when the results are favorable to the defendant. K.S.A. 2006 Supp. 21-2512(f)(2)(A) (“If the results of DNA testing . . . are favorable to the petitioner, the court shall . . . [o]rder a hearing, notwithstanding any provision of law that would bar such a hearing.”).
Nevertheless, Denney argues that the district court erred in failing to afford him certain protections because “introduction of that evidence [test results] to the court is, in effect an extension of the trial against the defendant.” He primarily bases his argument upon the constitutional right of confrontation and its handmaiden, cross-examination, citing Davis v. Alaska, 415 U.S. 308, 316, 39 L. Ed. 2d 347, 94 S. Ct. 1105 (1974) (“Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.”).
The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” Section 10 of the Kansas Constitution Bill of Rights similarly provides that “[i]n all prosecutions, the accused shall be allowed to . . . meet the witness face to face.” The question then becomes: is the postconviction forensic DNA testing process created by K.S.A. 2006 Supp. 21-2512 equivalent to a “prosecution?” We answer no.
We find guidance in United States v. Rondeau, 430 F.3d 44 (1st Cir. 2005). There, the defendant argued that his Confrontation Clause rights were violated at the hearing to revoke his supervised release after he had served his initial prison sentence. At the hearing, a police detective related statements received from witnesses. Rondeau argued that the statements constituted testimonial hearsay whose admission, absent witness unavailability and his prior opportunity to cross-examine, was prohibited by Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004). The court first noted:
“The Supreme Court has long recognized that a parole revocation hearing, which for present purposes is analogous to a supervised release hearing, ... is not equivalent to a ‘criminal prosecution.’ Morrissey v. Brewer, 408 U.S. 471, 480, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). Therefore, ‘tire full panoply of rights due a defendant in such a proceeding does not apply to parole revocations.’ ” 430 F.3d at 47.
The First Circuit Court of Appeals ultimately rejected Rondeau’s argument:
“Given that the Confrontation Clause focuses on ‘criminal prosecutions,’ we have not found the Clause to be applicable to post-conviction proceedings. [Citations omitted.] Nothing in Crawford indicates that the Supreme Court intended to extend the Confrontation Clause’s reach beyond the criminal prosecution context.” (Emphasis added.) 430 F.3d at 47.
The First Circuit joined several other circuits in concluding that, because a supervised release revocation hearing is not a “criminal prosecution,” Crawford-and its right-of-confrontation-based analysis — does not apply. See United States v. Hall, 419 F.3d 980, 985-86 n.4 (9th Cir. 2005) (“Parole, probation, and supervised release revocation hearings are constitutionally indistinguishable and are analyzed in the same manner.”); United States v. Kirby, 418 F.3d 621, 627-28 (6th Cir. 2005); United States v. Aspinall, 389 F.3d 332, 342-43 (2d Cir. 2004); United States v. Martin, 382 F.3d 840, 844 n.4 (8th Cir. 2004).
Closely connected with Denney s confrontation argument is another: because the hearing was essentially an extension of the trial, he was entitled to be present. He specifically argues that the hearing “is analogous to a post trial hearing to correct a sentence,” citing State v. Simpson, 25 Kan. App. 2d 639, 969 P.3d 905 (1998). Simpson, however, is distinguishable. There, at a hearing with only the State present, the district court corrected Simpson’s sentence by increasing his postrelease supervision from 24 to 36 months to comport with statutory requirements. Simpson specifically argued that the court violated his right to be present at the hearing pursuant to K.S.A. 22-3405. That statute provides in part that “[t]he defendant in a felony case shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by law.” The Court of Appeals agreed and reversed and remanded for sentencing with Simpson present.
However, the statute in the instant case, K.S.A. 2006 Supp. 21-2512, does not create a prisoner’s right to be present for the court’s receipt of unfavorable results of postconviction DNA testing conducted under the statute. We contrast this statute’s absolute silence on a prisoner’s rights with K.S.A. 60-1507(b)’s even more expansive prisoner’s rights. It, like 21-2512, is a postconviction statute. K.S.A. 60-1507(b) provides that unless the prisoner’s motion and the case records conclusively show that he or she is entitled to no relief, the court shall cause notice to be served upon the county attorney, grant a prompt hearing, and “determine the issues and make findings of fact and conclusions of law with respect thereto.” Even with these prisoner rights, however, the prisoner’s attendance at the hearing is still within the court’s discretion: “The court may entertain and determine such motion without requiring the production of the prisoner at the hearing.” (Emphasis added.) K.S.A. 60-1507(b); see also Rule 183(h) (2006 Kan. Ct. R. Annot. 227); Lujan v. State, 270 Kan. 163, 170-71, 14 P.3d 424 (2000).
Inherent in Denney s brief is a suggestion that the mere legislative creation of the right to, and process for, postconviction DNA testing carries attendant rights. We independently observe, for example, that in State v. Brown, 278 Kan. 481, 483, 101 P.3d 1201 (2004), we acknowledged that there is no constitutional right to effective assistance of counsel on collateral attacks, e.g., 60-1507 motions, because they are civil, not criminal, actions. Nevertheless, we held that when counsel is appointed pursuant to certain circumstances under state statute, such counsel must demonstrate a modicum of competence. Among other things, Brown’s counsel missed the deadline for filing an appeal of the denial of a 1507 motion, and we allowed the filing more than 2 years later under State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982). We also noted in passing that to hold otherwise would have left Brown with no remedy whatsoever: “[I]f Brown is not allowed to file his appeal out of time, it is impossible for him to obtain postconviction relief. In turn, without that relief, he cannot pursue an action for legal malpractice.” 278 Kan. at 485.
By contrast, in the instant case, although the legislature has created a right, it has carefully limited the right to the procedures established by the statute. And unlike the defendant in Brown, Denney still has remedies available, as the legislature acknowledged in subsection (g) of the statute: “Nothing in this section shall be construed to limit the circumstances under which a person may obtain DNA testing or other postconviction relief under any other provision of law.” Indeed, the district court invited Denney to avail himself of further testing on his own, even going so far as to suggest the possible caption of a motion based upon different testing results.
Rules of evidence
Denney argues that the test results were admitted into evidence in violation of the best evidence rule because the original raw testing data was not introduced; admitted in violation of foundation requirements because the qualifications of the forensic scientist, the reliability and certification of the testing equipment, and the accuracy and degree of acceptance of the testing techniques were not established; and admitted in violation of chain of custody requirements. His arguments are again based, in large part, upon his assertion that the hearing “is akin to a continuation of the trial in which new evidence is introduced.” Because we have held that the hearing is not a continuation of the trial, we reject this basis for his evidentiary arguments.
Moreover, there is no statutory requirement for how the court is to receive the DNA test results. Here, the court accepted the lab report, admitted it into evidence, and essentially allowed it to speak for itself. Finally, we observe that the report was accepted along with a document demonstrating the chain of custody.
Right to present defense
Denney also argues that the district court denied him his right to present his defense when it refused to delay its final decision until his expert reviewed the State’s findings, prepared a report, or appeared to testify. The cases he cites, State v. Humphrey, 252 Kan. 6, 845 P.2d 592 (1992), and State v. Bradley, 223 Kan. 710, 576 P.2d 647 (1978), both involve this right at a trial. As his quotation from Bradley reveals: “It is fundamental to a fair trial to allow the accused to present his version of the events so that the jury may properly weigh the evidence and reach its verdict.” (Emphasis added.) 223 Kan. at 714.
We reject this argument because of our holding that the K.S.A. 2006 Supp. 21-2512 proceeding, whether characterized as a continuation of the original trial or new litigation, is not a criminal prosecution. Moreover, subsection (g) of the statute, and the district court — with its invitation to Denney to obtain his own expert and to file to reopen the petition if his DNA test results were different from the Center’s — afford Denney ample opportunity to “present his defense.”
In short, rather than a continuation of the trial against the defendant — during which the State obtained multiple convictions, which were in turn upheld by this court on appeal — the legisla tively-created procedures evince a laudable, yet limited, effort to provide for postconviction DNA testing under narrow circumstances. Accordingly, based upon the unfavorable DNA test results, the district court was not required to hold a hearing. The fact that a hearing was held does not automatically afford Denney protections not warranted by the statute. The district court did not err in dismissing the petition.
Issue 3: The district court did not err in dismissing Denney’s pro se motions.
Finally, Denney argues that the district court erred in ruling that it lacked jurisdiction to consider his satellite pro se motions. Jurisdiction is a question of law over which this court exercises unlimited review. Moody, 282 Kan. at 197.
While Denney does not identify the motion or motions at issue, the district court noted that all the motions were ’’the same motion in various forms," i.e., Denney’s motion of ’’judicial notice of defendant’s DNA expert witness with motion to extend courts July 22nd & 29th, 2005 hearings and to subpoena DNA expert witness to counter State’s erroneous DNA profile." The heart of Denney’s argument is that the court failed to meet its obligation to make findings of fact and conclusions of law supporting its decision so that appellate review may be accomplished, citing State v. Moncla, 269 Kan. 61, 65, 4 P.3d 618 (2000), and Rule 183(j), relating to procedures under 60-1507.
We acknowledge that tíiis court has not limited the Rule 183(j) requirements to motions under 60-1507. See State v. Hoge, 283 Kan. 219, 221-22, 150 P.3d 905 (2007) (motions to correct an illegal sentence filed pursuant to K.S.A. 22-3504). However, we reject Denney’s argument. Moncla concerned a motion for new trial based upon newly discovered evidence, and the district court failed to analyze the credibility of two affiants and the materiality of the claimed new evidence. Here, the district court reviewed and accepted into evidence the three-page lab report, noting from the report that ’’the evidence is very clear that this was Mr. Denney’s DNA in the . . . case." Despite no statutory requirement to do so, it also found that Denney provided no evidence, particularly anything indicating Dr. Blake’s specific opinions. Under K.S.A. 2006 Supp. 21-2512(f)(l), when the test results are unfavorable to the petitioner, the petition shall be dismissed. Under these circumstances, a meaningful appellate review of the district court’s decision is easily accomplished.
Because 21-2512(f)(l) requires a dismissal of the petition when the test results are unfavorable, we agree that the petition’s satellite motions must therefore be dismissed also. We also agree with the district court’s invitation to Denney’s counsel: further court action must await either a new petition, or a reopening of the old petition, e.g., if Denney obtains DNA test results different from those of the Center.
We have reviewed the other arguments raised by Denney and conclude they have no merit.
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|
The opinion of the court was delivered by
Kaul, J.:
This was an action to recover for personal injuries and property damage sustained as a result of an intersection collision. Judgment was rendered on a general verdict for defendant on his counterclaim and plaintiffs have appealed.
On a rainy Sunday afternoon, March 23, 1969, defendant Rogers' was driving east on 31st Street approaching the intersection of 31st Street and Meridian Avenue in Wichita. At the same time plaintiff James J. Lehar was driving north on Meridian Avenue approaching the described intersection, his wife, plaintiff Joe Marie Lehar, was a passenger riding in the front seat with her husband.
Traffic on both streets was controlled by signal lights operating in cycles of red, green and amber, or yellow. The signal light on the northeast corner of the intersection, which normally controlled northbound traffic on Meridian Avenue, had been struck by some object and rotated about 90 degrees so that it faced west toward eastbound traffic on 31st Street instead of northbound traffic on Meridian Avenue.
A filling station was located on the southeast corner of the intersection. There were two drives leading into the station from the east side of Meridian Avenue.
Testimony of the parties concerning the entrance of their respective vehicles into the intersection and the conditions of the signal lights at the time was in considerable conflict.
Defendant testified that as he approached the intersection he did not rely on the faulty light which was to his left, but that he entered the intersection in response to the green light facing him on his right. Before he entered the intersection defendant saw plaintiffs’ car even with the south drive of the filling station. Defendant did not keep plaintiffs’ car under constant surveillance. Defendant also looked to his left and saw some vehicles headed south on Meridian Avenue. He then drove on into the intersection. He further testified that prior to the impact he saw nothing that would constitute an impending danger to his entering and going through the intersection. Defendant never noticed the faulty light to his left until he was in the intersection.
Plaintiff James Lehar testified that when he was 100 to 150 feet south of the intersection the light facing him, and controlling northbound traffic, was green. He looked for eastbound traffic on 31st Street and saw a car coming which did not appear to be slowing down. When he was about 60 feet from the intersection he saw the danger and applied his brakes; when he reached the intersection he glanced up and saw the fight facing him was yellow. On cross-examination Lehar testified that he could have stopped his car without hitting defendant if it had not been raining.
Officer Michael J. Kelty, of the Wichita Police Department, prepared the report of the accident. He took statements of both parties. Kelty testified that when he was going over the report with Lehar he questioned him concerning the fact that the report showed that Lehar had a red light for his direction of travel and that at Lehar’s request he altered the report by marking out red and writing in yellow.
Burt Cooper, a member of the Wichita Police Department Reserves and commanding officer at the time, was standing in front of the service station and witnessed the accident. Cooper saw Lehar’s vehicle when it was right in front of the north drive of the filling station at which time Lehar’s light was yellow. Cooper did not know positively whether Lehar entered the intersection on a red light, it was either very near the end of the yellow phase or red. He was certain that Lehar did not have a green light. Cooper further testified that defendant entered the intersection first and that Lehar must have noticed some danger when he applied his brakes at least 55 feet south of the intersection.
Beverly Ann Homing was driving west on 31st Street intending to make a right turn onto Meridian Avenue. She stopped at a red light as she approached Meridian. When she attempted to proceed as the light turned green her car stalled. She started forward on the next green light and again her car stalled. At this point in time she saw the accident. She testified that had her car not stalled as she started forward on this last green light she would have been hit by plaintiffs’ car. She further testified that when the accident occurred the signal light controlling traffic on 31st Street was green. On cross-examination she testified that when she looked up after the collision the 31st Street light was red.
Plaintiff, Joe Marie Lehar, testified that immediately prior to the collision she was not paying attention to traffic and was thinking about shopping and various other things. She did know that the streets were wet and that it was raining.
At the conclusion of the evidence, the City of Wichita, originally a party defendant, was dismissed from the action.
The jury returned a general verdict for defendant in the amount of $1,500. The undisputed evidence disclosed that the damage to defendant’s car amounted to $962.80 and that his hospital bill totaled $33.20. Thus, it may be assumed the jury awarded the balance, or $504 to defendant for personal injuries.
On appeal plaintiffs assert six points of error. The first and principal contention argued is stated by plaintiffs in these words:
“1. The verdict in favor of the defendant, Rogers, was contrary to the evidence as a matter of law since the defendant, Rogers, admits he did not observe the danger which was in fact present.”
Before considering plaintiffs’ argument, we should first note rules of appellate review particularly applicable to the point raised.
First, in testing a verdict against the evidence, we are required to consider the evidence in the light most favorable to the party who prevailed in the court below. (Wiley v. Board of Education, 205 Kan. 585, 470 P. 2d 792; Riedel v. Gage Plumbing & Heating Co., 202 Kan. 538, 449 P. 2d 521; and Frame, Administrator v. Bauman, 202 Kan. 461, 449 P. 2d 525.) Second, this court does not weigh evidence and where a jury’s verdict or a tidal court’s findings are attacked as being contrary to the evidence, the appellate issue is only whether there is any evidence to support the verdict or findings and if so, neither will be overturned on appellate review, e. g., Brohan v. Nafziger, 206 Kan. 58, 476 P. 2d 649; Wiley v. Board of Education, supra; In re Estate of Bernatzki, 204 Kan. 131, 460 P. 2d 527; and Schnug v. Schnug, 203 Kan. 380, 454 P. 2d 474. It is of no consequence that there may have been contrary evidence adduced which, if believed by the jury, would have compelled a different verdict. (Robles v. Central Surety & Insurance Corporation, 188 Kan 506, 363 P. 2d 427; and Renner v. Mosanto Chemical Co., 187 Kan. 158, 354 P. 2d 326.)
The main thrust of plaintiffs’ argument on their first point is that defendant was guilty of negligence as a matter of law and thus the jury’s verdict is contrary to law and cannot stand. Plaintiffs take this position on appeal, even though they did not move for a directed verdict on the point at any stage of the trial below.
Defendant testified that he entered the intersection in response to the green light to his right on the northeast comer of the intersection. This is the signal light which normally would govern defendant’s actions. Even though inconsistencies were elicited on cross-examination, the testimony of tire independent witnesses, Cooper and Horning, supports the testimony of defendant and plaintiffs’ own testimony concerning the condition of the lights was inadequate at best. We think it unnecessary to burden this opinion with further details of the evidence. It is only necessary that we consider whether there is substantial evidence upon which the verdict is based and a recital of the contradictory evidence cannot aid in correctly determining the question. (Robles v. Central Surety & Insurance Corporation, supra.) This court has often said that the law favors trial by a jury and the court should not usurp the power and function of the jury by weighing evidence and passing on questions of fact. (Krentz v. Haney, 187 Kan. 428, 357 P. 2d 793.)
Plaintiffs argue the defendant could not be found free of negligence because he was guilty of failing to keep a proper lookout; in failing to observe the condition of the signal lights as he approached the intersection; and in failing to keep plaintiffs’ vehicle in view. Plaintiffs cite a number of our cases dealing with a driver’s lookout duty. The trouble with their position is that this case is one of conflicting and controverted factual testimony as to the condition of the lights. Moreover, the lookout rule cannot be applied here as plaintiffs would have it, as there is evidence that defendant did look and saw plaintiffs’ car at a point and under circumstances which made defendant’s .entrance into the intersection permissible. The question was for the jury.
Under the conflicting testimony attendant here, whether a person had knowledge that the driver of a vehicle would not observe the law of the road, or in the exercise of reasonable diligence should have had such knowledge, presents a jury question. (Smith v. Salts, 170 Kan. 313, 224 P. 2d 1025.)
The case of Wilson v. Cyrus, 180 Kan, 836, 308 P. 2d 98, involved a light controlled intersection accident very similar to the factual situation in the instant case. In considering the application of the lookout rule we said:
“It is trae the general rule is that a person is not to be relieved for failure to see that which is in plain view to be seen, but the rule of course obtains only when the facts and circumstances warrant its application . . . The law is well established that the operator of an automobile may assume that others using the highway will observe the law of the road, and one is not guilty of negligence in acting upon such assumption unless and until he has knowledge to the contrary. (Keir v. Trager, 134 Kan. 505, 7 P. 2d 49, 81 A. L. R. 181; Jones v. McCullough, 148 Kan. 561, 83 P. 2d 669; Smith v. Salts, 170 Kan. 313, 224 P. 2d 1025.) It is equally well settled that as a matter of law one is not guilty of negligence who does not look for danger where there is no reason to apprehend any. (Fowler v. Mohl, 172 Kan. 423, 427, 241 P. 2d 517.) In Hudson v. Yellow Cab & Baggage Co., 145 Kan. 66, 69, 64 P. 2d 43, it was said that one who enters an intersection controlled by traffic lights and who carefully observes that the lights are for traffic in the direction he is going is not guilty of negligence as a matter of law because he does not see on the other street a car driving into the intersection against a red light.” (pp. 838, 839.)
See, also, Harbaugh v. Dorr, 200 Kan. 610, 438 P. 2d 74; and State v. Dean, 179 Kan. 24, 292 P. 2d 694.
Since the general verdict for defendant imports a finding in defendant’s favor on all issues in the case we must, on' appellate review, start with the proposition that the jury, under the court’s instructions, found that defendant entered the intersection at a reasonable speed in response to a green light and that plaintiffs entered against a red light in violation of law.
There is ample evidence to support the jury’s verdict on the question of negligence and proximate cause; therefore, the verdict cannot be disturbed as a matter of law.
Plaintiffs claim the verdict with respect to personal injuries of defendant was based in whole or in part upon speculative findings not supported by evidence. As we have indicated, the allowance for personal injuries to defendant must be assumed to amount to $504. There was evidence that defendant was taken to the emergency room of the St. Joseph Hospital where he incurred a bill of $33.20 for medical supplies, x-rays and professionel fees. Defendant testified that he suffered an injury to his right knee which was healed 19 days after the accident. The property damage to his automobile was substantial. It must be conceded that some pain would follow a knee injury suffered in an impact between two moving vehicles. Certainly, it cannot be said that an award of $504 is so grossly excessive ás to be set aside.
There is no fixed standard for measuring the adequacy or inadequacy of a verdict, the question must be decided on the particular facts of each case and the extent of a personal injury is ordinarily a matter for the jury to determine. (Brown v. Godfrey, 200 Kan. 568, 438 P. 2d 117.) In order for a judgment to be set aside on grounds of an excessive verdict, it must appear the amount is so grossly excessive as to shock the conscience of the court. (Spencer v. Eby Construction Co., 186 Kan. 345, 350 P. 2d 18.)
Plaintiffs next complain that the trial court erred in failing to specify the acts of negligence claimed by the respective parties. The record reveals the trial court fully stated the claims of the parties and defined the issues. The court defined proximate cause, negligence, contributory negligence, stated the rules of the road which particularly concern traffic controlled by signal lights, and directed the jury to determine what rules were applicable and which were violated. The instructions were adequate and we find no instance in which the plaintiffs have made it affirmatively appear that substantial prejudice resulted by reason of any instructions given or in refusal of any instructions requested.
Plaintiffs claim error in giving an instruction concerning the duty of Mrs. Lehar as a passenger. In her testimony, Mrs. Lehar admitted she was not paying attention, and that she knew it was raining and the streets were wet. In Beye v. Andres, 179 Kan. 502, 296 P. 2d 1049, the duty of a passenger under similar circumstances was considered and it was held:
“Although the negligence of a driver is not imputed to a guest, or passenger, it nevertheless is the duty of a guest, or passenger, to exercise reasonable care for his own safety, and, where he has the same opportunity as a driver to observe the dangerous conditions and circumstances and fails to take any precautions whatsoever for his own safety until it is too late, he is guilty of contributory neglience which bars recovery.” (Syl. ¶ 6.)
Although the record does not clearly disclose whether plaintiffs lodged an objection at the time, they claim on appeal the trial court erred in permitting defendants to exercise six peremptory challenges — that is three each for the City of Wichita and defendant Rogers.
, K. S. A. 1971 Supp. 60-247 (b) authorizes three peremptory challenges for each party except that:
“. . . If there is more than one defendant and if the judge finds there is a good faith controversy existing between the defendants, the court shall allow the defendants additional peremptory challenges and permit them to be exercised separately or jointly.”
In their petition, plaintiffs alleged that the City of Wichita negligently allowed a traffic signal to improperly direct traffic after notice thereof. Plaintiffs further alleged that they had filed a claim against the City of Wichita for damages under K. S. A. 1971 Supp. 12-105. In his answer defendant Rogers pleaded in the alternative that plaintiffs’ damages, if any, were the result of negligence of parties other than defendant. With the case in this posture, at the time of impaneling the jury, the trial court could well have found a good faith controversy between the City and defendant Rogers on the issue of proximate cause. The trial court did not make an express finding that a controversy existed between defendants but plaintiffs made no objection on this ground. The record shows that counsel for plaintiffs merely inquired of the court — “Don’t we get the same amount that they do.” The court’s response in the negative was correct under the statute. We find no error shown with respect to the trial court’s handling o£ the peremptory challenges.
We have examined other trial errors urged by plaintiffs and find nothing therein proposed that approaches reversible error.
Essentially, this is a fact case in which all issues were fully litigated and decided by the jury. The verdict or any part thereof cannot be reversed without weighing evidence or attempting to judge credibility of witnesses. Such matters are beyond the scope of appellate review.
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|
The opinion of the court was delivered by
Nuss, J.:
Cesar Martinez Corral filed a claim for his earned but unpaid wages against his employer, Coma Corporation, d/b/a Burrito Express, and its president, Mario Coria. The Kansas Department of Labor (KDOL) determined that both respondents (Coma) owed Corral wages plus interest and also assessed a civil penalty for a total of $7,657 under the Kansas Wage Payment Act, K.S.A. 44-312 et seq.
On Coma’s petition for review pursuant to the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq., the district court reversed in part. It concluded that because Corral was an undocumented worker not legally permitted to work in tire United States he was only entitled to the applicable minimum wage for work performed and was not entitled to a penalty. The KDOL appeals directly to this court under tire KJRA.
The issues on appeal, and this court’s accompanying holdings, are as follows:
1. Is an undocumented worker’s employment contract enforceable under the Kansas Wage Payment Act? Yes.
2. Did the Kansas Department of Labor err in assessing penalties against Coma pursuant to K.S.A. 44-315(b)? No.
Accordingly, we affirm in part and reverse in part the judgment of the district court. We affirm tire judgment of KDOL.
FACTS
Mario Coria is tire president of Coma Corporation, a Wichita enterprise. On May 17,2004, after Cesar Martinez Corral was fired from his Coma employment, he filed a claim for earned but unpaid wages. Corral alleged that he worked as a cook for Coma from October 2003 to May 12, 2004, at a pay rate of $6 per hour.
Corral testified at a telephone wage hearing conducted by a KDOL hearing officer. Corral stated that the manager, Luis Calderon, agreed to pay him $6 per hour with weekly payment. Although Corral maintained that he worked 6 or 7 days per week (50 to 60 hours), he only requested wages for 24 weeks at 40 hours per week — for a total of $5,760. He further testified that he was paid “$50 or $60 bucks a week.” Based upon payment received of $60 per week, the hearing officer clarified that Corral was requesting $5,760 (24 weeks times 40 hours at $6 an hour) minus $2,040 ($1,440 [$60 actually paid per week times 24 weeks] minus $600 [rent of $100 per month times 6 months]) for a total of $3,760. No one besides Corral testified.
In granting Corral’s claim, the hearing officer determined that the evidence presented no issues of fact and awarded wages plus interest:
“The evidence as to the agreement, the work done and the payment of some wages is not conflicting and presents no issue of fact to be resolved by the Presiding Officer. . . .
“The Claimant’s evidence meets the burden of proof and establishes the contract, the services and the unpaid wages. Respondent failed to rebut Claimant’s evidence. The Kansas Wage Payment Law requires Respondent to pay wages to Claimant in the amount of $3,720. Interest is assessed at 10% per annum for a total of $217.”
The hearing officer also awarded Corral a penalty of $3,720 for Coma’s willful and knowing withholding of his wages. Based upon $3,720 in wages, $217 in interest, and a penalty of $3,720, the hearing officer awarded Corral a total of $7,657 against Coma and Coria as its president. Coma filed a motion to dismiss, or in the alternative, to set aside initial order, which the Secretary of the KDOL denied. Coma also filed a petition for review that was denied.
Coma then filed a Petition for Judicial Review of Final Order with the district court. There, KDOL stipulated that Corral is an undocumented worker “not legally permitted to work in the United States.”
In a 17-page opinion, the district court concluded that the Kansas Wage Payment Act (KWPA), K.S.A. 44-312 et seq., did apply to undocumented workers. It held, however, that Corral was only entitled to the applicable minimum wage for work performed because the employment contract was illegal due to Corral’s status as an undocumented worker. The court remanded to KDOL for re calculation at the applicable minimum wage. It also reversed the hearing officer’s penalty award, holding that federal immigration policy should prohibit a statutory penalty.
ANALYSIS
Standard of Review
KDOL actions are reviewable under the Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq. See K.S.A. 44-322a (c). Our standard of review is statutorily defined by the KJRA. See Blue Cross & Blue Shield of Kansas, Inc. v. Praeger, 276 Kan. 232, 245, 75 P.3d 226 (2003). KDOL argues that in the instant case a court shall grant relief to Coma only if it determines:
1. The KDOL has erroneously interpreted or applied the law; or
2. The KDOL action is based on a determination of fact, made or implied by the agency, that is not supported by the evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act. See K.S.A. 77-621(c)(4) and (7).
On appeal, we exercise the same statutorily limited review of the KDOL’s action as does the district court, i.e., “ ‘as though the appeal had been made directly to this court.’ ” 276 Kan. at 245. The party asserting the agency’s action is invalid bears the burden of proving the invalidity. K.S.A. 77-621(a)(1). 276 Kan. at 245. As a result, Coma — as the petitioner for review to the district court-— retains the burden in this court of proving that at least one of the above-listed statutory bases for error exists.
Issue 1: An undocumented worker’s employment contract is enforceable under the Kansas Wage Payment Act.
Coma argues that Corral’s employment contract was illegal and unenforceable because he is an illegal alien. Intertwined with this argument is another: Coma claims that federal immigration law preempts the KWPA. The KDOL responds that the district court was correct in concluding that Corral was covered by the KWPA, essentially rejecting the preemption argument. It argues tire court erred, however, in concluding that Corral’s employment contract was illegal and unenforceable due to his status as an undocumented worker and that Corral therefore was entitled only to minimum wage.
To the extent resolution of the issues necessitates statutory interpretation, this court’s review is unlimited. Schmidtlien Electric, Inc. v. Greathouse, 278 Kan. 810, 819, 104 P.3d 378 (2005).
As we stated in Blue Cross & Blue Shield of Kansas, Inc., v. Praeger, 276 Kan. at 247:
“ ‘Interpretation of a statute is a question of law. [Citation omitted.] Special rules apply, however, when considering whether an administrative agency “erroneously interpreted or applied the law”:
“The interpretation of a statute by an administrative agency charged with the responsibility of enforcing that statute is entitled to judicial deference. This deference is sometimes called the doctrine of operative construction. . . . [I]f there is a rational basis for the agency’s interpretation, it should be upheld on judicial review. . . . [However,] [t]he determination of an administrative body as to questions of law is not conclusive and, while persuasive, is not binding on the courts.” [Citation omitted.]
Deference to an agency’s interpretation is especially appropriate when “the agency is one of special competence and experience.” [Citation omitted.] However, the final construction of a statute always rests with the courts. [Citations omitted.]’ ”
KDOL specifically alleges that it is an agency of special competence and experience. As a result, it argues that the doctrine of operative construction applies to its interpretation providing KWPA coverage to undocumented workers such as Corral. Cf. A. O. Smith Corp. v. Kansas Dept. of Human Resources, 36 Kan. App. 2d 530, 535, 144 P.3d 760 (2005) (applying operative construction).
Application of the KWPA to undocumented workers
As mentioned, Coma’s “illegal contract” argument is intertwined with its allegation that the KWPA does not apply to Corral because “it contravenes the central policy of federal immigration law,” i.e., state law is preempted by federal law. Coma quotes Ray v. Atlantic Richfield Co., 435 U.S. 151, 158, 55 L. Ed. 2d 179, 98 S. Ct. 988 (1978):
“[A] state statute is void to the extent that it actually conflicts with a valid federal statute. A conflict will be found ‘where compliance with both federal and state regulations is a physical impossibility . . . ,’ [citation omitted] or where the state ‘law stands as an obstacle to the accomplishments and execution of tire full purposes and objectives of Congress.’ [Citations omitted.]”
Preemption is a question of law over which we exercise de novo review. Doty v. Frontier Communications, Inc., 272 Kan. 880, 888, 36 P.3d 250 (2001).
Because of Coma’s reliance upon preemption, it does not dispute that K.S.A. 44-313(b) of the KWPA expansively defines an employee as “any person allowed or permitted to work by an employer.” (Emphasis added.) Nor does it dispute that pursuant to K.S.A. 44-314(a), an employer is required to pay all wages due to an employee at least once a month. In short, the plain language of the statute does not exclude undocumented workers from the “employee” definition or from the protections of the KWPA. Nor are there any KWPA exceptions to this expansive definition.
Coma’s purported trumping argument is instead based upon 8 U.S.C. § 1324a(a) (2000), which makes employment of unauthorized aliens illegal, and Hoffman Plastic Compounds v. NLRB, 535 U.S. 137, 152 L. Ed. 2d 271, 122 S. Ct. 1275 (2002). In Hoffman, the United States Supreme Court reversed a National Labor Relations Board’s (NLRB) award of back pay to an undocumented worker because recovery was “foreclosed by federal immigration policy” as stated in the Immigration Reform and Control Act of 1986 (IRCA). 535 U.S. at 140. Technically, Hoffman itself did not involve preemption, but rather concerned a conflict between competing federal laws: the National Labor Relations Act (NLRA) and IRCA.
There, Hoffman hired Jose Castro based upon documents winch purported to verify his authorization to work in the United States. Hoffman subsequently fired Castro for his involvement in a union-organizing campaign. Three years later, the NLRB concluded that Hoffman unlawfully selected four employees, including Castro, for layoff, due to involvement in union activities. As a remedy, the NLRB ordered Hoffman to, among other things, offer reinstatement and back pay to the fired employees. Later, at a compliance meeting before an Administrative Law Judge (ALJ), Castro confirmed he had fraudulently obtained documents to support his employment application. He testified that he was bom in Mexico, that he had never been authorized to work in the United States, and that he used a friend’s birth certificate to fraudulently obtain a California driver’s license and Social Security card. Based upon Castro’s acknowledgment, the ALJ determined that the NLRB was precluded from awarding Castro back pay or offering reinstatement, because such relief was in conflict with the IRCA. Four years later, the NLRB reversed the specific issue of back pay.
In the Supreme Court’s analysis, it first discussed Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 81 L. Ed. 2d 732, 104 S. Ct. 2803 (1984). In Sure-Tan, tire Court affirmed the NLRB’s determination that the NLRA applied to undocumented workers. 467 U.S. at 892. The Sure-Tan Court noted that “[f]or whatever reason, Congress has not adopted provisions in the INA [Immigration and Nationality Act] making it unlawful for an employer to hire an alien who is present or working in the United States without appropriate authorization.” Sure-Tan, 467 U.S. at 892-93; Hoffman, 535 U.S. at 144-45. The Sure-Tan Court determined that although the NLRA applied to undocumented workers, remedies for violations were limited by federal immigration policy. 467 U.S. at 903.
After construing Sure-Tan, the Hoffman Court discussed changes that occurred after the case was decided:
“[T]wo years after Sure-Tan, Congress enacted IRCA, a comprehensive scheme prohibiting the employment of illegal aliens in the United States. ... As we have previously noted, IRCA ‘forcefully’ made combating the employment of illegal aliens central to ‘[t]he policy of immigration law.’ [Citation omitted.] It did so by establishing an extensive ‘employment verification system,’ § 1324a(a)(l), designed to deny employment to aliens who (a) are not lawfully present in the United States, or (b) are not lawfully authorized to work in the United States, § 1324a(h)(3). This verification system is critical to the IRCA regime. To enforce it, IRCA mandates that employers verify the identity and eligibility of all new hues by examining specified documents before they begin work. § 1324a(b). If an alien applicant is unable to present tire required documentation, the authorized alien cannot be hired. § 1324a(a)(1).” 535 U.S. at 147-48.
Based on the foregoing analysis, the Hoffman Court reasoned that as an undocumented worker, Castro did not have the right to a remedy based on the presumption of his continued illegal employment. 535 U.S. at 149. Thus, wages for work not actually performed were not appropriate.
The Court concluded:
“[A]llowing tire Board to award backpay to illegal aliens would unduly trench upon explicit statutory prohibitions critical to federal immigration policy, as expressed in IRCA. It would encourage tire successful evasion of apprehension by immigration authorities, condone prior violations of the immigration laws, and encourage future violations. However broad the Board’s discretion to fashion remedies when dealing only with tire NLRA, it is not so unbounded as to authorize this sort of an award.” 535 U.S. at 151-52.
To begin our preemption analysis, we acknowledge that the Supremacy Clause of Article VI of the United States Constitution provides for federal preemption of state law. Preemption may arise through an express provision, by implication, or through conflict between a federal and state law. New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 654, 131 L. Ed. 2d 695, 115 S. Ct. 1671 (1995). Through Coma’s citation to Ray v. Atlantic Richfield Co., 435 U.S. 151, it argues “conflict preemption.” See Balbuena v. IDR Realty LLC, 6 N.Y.3d 338, 356, 812 N.Y.S.2d 416, 845 N.E.2d 1246 (2006) (citing Ray).
Preemption, however is not presumed: “[D]espite the variety of these opportunities for federal preeminence, we have never assumed lightly that Congress has derogated state regulation, but instead have addressed claims of pre-emption with the starting presumption that Congress does not intend to supplant state law. [Citation omitted.]” 514 U.S. at 654-55; see also Doty v. Frontier Communications, Inc., 272 Kan. 880, Syl. ¶ 5, 36 P.3d 250 (2001) (“In the absence of express preemption in a federal law, there is a strong presumption that Congress did not intend to displace state law.”). Additionally, “ ‘it is well established that the states enjoy ‘broad authority under their police powers to regulate . . . employment relationship^] to protect workers within the state.’ ” Madeira v. Affordable Housing Foundation, Inc., 469 F.3d 219, 228 (2d Cir. 2006) (citing DeCanas v. Bica, 424 U.S. 351, 356, 47 L. Ed. 2d 43, 96 S. Ct. 933 [1976]). “[M]inimum and other wage laws . . . and workmen s compensation law are only a few examples” of the exercise of this broad authority. 424 U.S. at 356.
In Madeira, the Second Circuit Court of Appeals thoroughly examined preemption issues arising after Hoffman. There, an undocumented worker who was injured while working at a construction site sued his employer for failing to provide adequate safety equipment in violation of New York state law. On appeal, the employer and others argued that pursuant to Hoffman, “federal immigration law prohibiting the employment of undocumented aliens precludes state tort or labor law from awarding an injured undocumented worker . . . compensatory damages for lost earnings at United States pay rates.” 469 F.3d at 227. The Madeira court specifically noted that unlike the worker in Hoffman who had fraudulently obtained and provided false documents to his employer, which is criminal conduct under IRCA, Madeira had not done so. It held that outside of knowingly or recklessly using false documents to obtain employment, Congress did not otherwise prohibit undocumented aliens from seeking or maintaining employment. 469 F.3d at 231.
After extensively discussing principles of federal preemption, the Second Circuit limited Hoffman’s holding and concluded that the applicable state law was not an obstacle to IRCA’s policy objectives under any type of preemption theory:
“In short, federal immigration law did not excuse the Hoffman Plastic employer from its general NLRA duties to engage in fair workplace practices toward all workers-, it only precluded the NLRB from employing a particular remedy — back-pay — when the victim of the unfair labor practice was an undocumented alien who had secured his employment through fraud and whose termination was, in fact, effectively required by IRCA. . . . Instead, as in Hoffman Plastic, the policy conflict issue in this case reduces to a concern about remedies, specifically, New York state’s ability to award workers, including undocumented aliens, some measure of lost United States earnings in compensation for disabling injuries caused by workplace negligence.” (Emphasis added.) 469 F.3d at 242.
Similarly, in Balbuena v. IDR Realty LLC, 6 N.Y.3d 338, after extensive discussion of preemption, New York’s highest court held that Hoffman did not preempt state law and did not prevent awarding injured undocumented workers compensatoxy damages for lost earnings. As did the Madeira court, it noted that unlike in Hoffman, its undocumented workers had not themselves violated federal immigration law when they procured employment. 6 N.Y.3d at 360-61. With this holding, Balbuena resolved a split that had developed between the New York state appellate divisions. See Madeira, 469 F.3d at 227 fn.8.
Madeira’s and Balbuena’s conclusions on preemption are consistent with other jurisdictions. As the district court in the instant case generally noted,
“[m]ost state courts examining this issue in tire context of a state’s particular labor law have ruled in favor of protecting the rights of aliens. See, e.g. Gomez v. Falco, 6 Misc. 3d 5 (N.Y. App. Term 2004) (state wage payments act applicable to illegal aliens); Design Kitchen and Baths v. Lagos, 2005 WL 2179187 (Md. Sept. 12, 2005) (undocumented worker ‘covered employee’ under worker’s compensation statute); Continental Pet Technologies, Inc. v. Palacias, 269 Ga. App. 561, 562, 604 S.E.2d 627, 629 (2004) (IRCA does not preempt state workers’ compensation act); Cherokee Industries, Inc. v. Alvarez, 84 P.3d 798, 799 (Okla. Civ. App. 2003) (workers’ compensation act does not exclude alien workers); Safeharbor Employer Svcs., Inc. v. Cinto Velazquez, 860 So.2d 984, 985 (Fla. 2003) (worker’s status as illegal alien does not preclude receipt of workers compensation benefits); Dowling v. Slotnik, 244 Conn. 781, 797, 712 A.2d 396, 405 (1998) (workers’ compensation act protects illegal aliens).”
The district court, however, also acknowledged contrary case law limiting rights of undocumented workers, citing Crespo v. Evergo Corp., 366 N.J. Super. 391, 399-400, 841 A.2d 471 (2004) (worker’s undocumented status precluded termination benefits); Bastas v. Board of Review, Dept. of Labor and Ind., 155 N.J. Super. 312, 315, 382 A.2d 923 (1978) (illegal alien may not receive unemployment benefits); Granados v. Windson Development Corp., 257 Va. 103, 108-09 (1999) (illegal alien not an “employee” under workers compensation act), superceded by statute as stated in Rajeh v. Steel City Corp., 157 Ohio App. 3d 722, 732, 813 N.E.2d 697 (1999); and Sanango v. 200 East 16th St. Housing Corp., 788 N.Y.S.2d 314, 321, 15 A.D.3d 36 (2004) (undocumented worker may not be awarded lost earnings for a personal injury action based on wages he would have earned; later overruled by Balbuena).
Although not involving an issue of federal preemption of state law, but rather one of potential conflict between two federal laws— IRCA and the Fair Labor Standards Act (FLSA) — the district court also noted that federal courts have consistently upheld the applicability of FLSA protections to undocumented employees. See Patel v. Quality Inn South, 846 F.2d 700, 705-06 (11th Cir. 1988) (under the FLSA, undocumented worker was entitled to recover unpaid minimum wages and overtime for work already performed); Donovan v. Burgett Greenhouses, 759 F.2d 1483, 1486 (10th Cir. 1985) (employer required to pay wages, including overtime for work performed by illegal aliens); Chellen v. John Pickle Co., 344 F. Supp. 2d 1278, 1294 (N.D. Okla. 2004) (Indian nationals not authorized to work in the United States were “employees” under the FLSA); and Flores v. Amigon, 233 F. Supp. 2d 462, 463 (E.D. N.Y. 2002) (Hoffman is not extended when “the plaintiffs had already performed the work for which unpaid wages were being sought.”).
The district court also observed that there is litde precedent in Kansas upon which to rely. It stated that this court
“without squarely addressing the issue, has allowed an illegal alien to make a claim for worker’s compensation benefits, Acosta v. National Beef Packing Co., 273 Kan. 385, 44 P.3d 330 (2002), but punished the same employee for using fraudulent documents and lying in order to obtain such workers compensation benefits. In re Doe, 277 Kan. 795, 803-04, 807, 90 P.3d 940 (2004).”
Based upon the weight of what the district court considered “persuasive authority,” and the plain language of K.S.A. 44-313(b), tire court concluded that like the FLSA, the KWPA applies to undocumented workers. It specifically noted “the reasoning of many courts which have addressed this question — that the enforcement of employment statutes actually furthers the goals of the IRCA by creating disincentives for employers to hire illegal aliens,” and that K.S.A. 44-313(b) “on its face makes no exception for illegal aliens.”
We agree. Based upon other jurisdictions’ rejection of IRCA preemption of certain state labor laws, coupled with their narrow reading of Hoffman, we conclude that under this case’s facts, Coma has not overridden the presumption against federal preemption afforded by the Supremacy Clause.
More specifically, we agree that the KWPA applies to earned, but unpaid, wages of an undocumented worker — the exact ques tion before us. See e.g., Zavala v. Wal-Mart Stores, Inc., 393 F. Supp. 2d 295 (N.J. 2005); Flores, 233 F. Supp. 2d 462; Zeng Liu v. Donna Karan Intern., Inc., 207 F. Supp. 2d 191, 192 (S.D. N.Y. 2002) (“Courts have distinguished between awards of post-termination back pay for work not actually performed and awards of unpaid wages pursuant to tire Fair Labor Standards Act”); Singh v. Jutla, 214 F. Supp. 2d 1056, 1060-61 (N.D. Cal. 2002) (Hoffman does not hold that an undocumented employee is barred from recovering unpaid wages for work actually performed); Garcia v. Pasquareto, 11 Misc. 3d 1, 812 N.Y.S.2d 216 (2004) (courts construing Hoffman have consistently held that it has no effect on claims for wages earned but not paid); Gomez v. Falco, 6 Misc. 3d 5, 792 N.Y.S.2d 769 (2004) (award for payment due and owing not back pay barred by federal immigration law); Galaviz-Zamora v. Brady Farms, Inc., 230 F.R.D. 499, 501-03 (W.D. Mich. 2005); Hernandez-Cortez v. Hernandez, 2003 WL 22519678, at *6 (D. Kan. 2003) (unpublished opinion) (plaintiff correct in arguing that Hoffman does not prevent undocumented employees from recovering unpaid wages for work actually performed); and Flores v. Albertsons, Inc., 2002 WL 1163623, at *5 (C.D. Cal. 2002) (unpublished opinion) (“Hoffman does not establish that an award of unpaid wages to undocumented workers for work actually performed runs counter to IRCA”).
Coma’s cited cases, Chaudhry v. Mobil Oil Corp., 186 F.3d 502 (4th Cir. 1999) (foreign national was not qualified for employment because failed to present documentation and was thus not protected by Title VII or ADEA), and Egbuna v. Time-Life Libraries, Inc., 153 F.3d 184 (4th Cir. 1998) (former employee had no cause of action under Title VII because of his status as alien without work authorization), do not address the earned but unpaid wages of an undocumented worker. Because they are easily distinguishable, they are unpersuasive.
Finally, we agree with the rationale set forth in Flores v. Amigon, 233 F. Supp. 2d 462, where the court granted FLSA protections to an undocumented worker and determined that payment of unpaid wages for work actually performed furthers the federal immigration policy:
“Indeed, it is arguable that enforcing the FLSA’s provisions requiring employers to pay proper wages to undocumented aliens when the work had been performed actually furthers the goal of the IRCA, which requires the employer to discharge any worker upon discovery of the worker’s undocumented alien status. 8 U.S.C. § 1324a(a)(2). If employers know that they will not only be subject to civil penalties, 8 U.S.C. § 1324a(e)(4)(A), and criminal prosecution, 8 U.S.C. § 1324a(f)(1), when they hire illegal aliens, but they will also be required to pay them at the same rates as legal workers for work actually performed, there are virtually no incentives left for an employer to hire an undocumented alien in the first instance. [Citation omitted.] Whatever benefit an employer might have gained by paying less than the minimum wage is eliminated and the employer’s incentive would be to investigate and obtain proper documentation from each of his workers.” 233 F. Supp. 2d at 464.
The legality of the employment contract
In an argument heavily intertwined with federal preemption, Coma also asserts that Corral’s employment contract is illegal under state law. Specifically, it argues that KDOL regulations require that a contract of employment contain lawful provisions in order to be enforceable. Coma reasons that because Corral does not have a legal right to be or to work in the United States, his contract violates IRCA and is unenforceable under KDOL regulations and state law. In support, it cites Sweet v. Stormont Vail Regional Medical Center, 231 Kan. 604, 611, 647 P.2d 1274 (1982) (contracts that are unreasonable or illegal are unenforceable).
The district court appeared to agree with Coma. Despite acknowledging that Corral was an employee under the KWPA, it stated:
“[T]he Court’s analysis does not end here. The KWPA, unlike many of the employment statutes at issue in the above cited cases, is heavily dependent on the contract between the employer and the employee. Accordingly, a closer examination of Mr. Corral’s claim is required.”
The court then referenced K.A.R. 49-20-1 et seq., which provides procedures for enforcing the payment of wages. K.A.R. 49-21-2(b)(6) states in part:
'When the evidence shows there is probable cause to believe that a violation has occurred, the investigator shall attempt to obtain payment or settlement through conciliation of the parties to the dispute.
“Determination of an alleged violation shall be based upon:
“(A) The lawful provisions of the employment agreement or contract between the employer and employee.” (Emphasis added.)
After noting that the regulation requires a lawful contract, the district court concluded that Corral’s contract was not lawful:
“Since Mr. Corral is an illegal alien, without a legal right to work in the United States, under both the IRCA and Hoffman, the oral employment agreement between him and the Petitioners undeniably violates the ‘central policy of immigration law.’ Hoffman, 535 U.S. at 147. Given this, one can hardly argue the contract was a legal one, enforceable under Kansas law.
“This court holds as a matter of law that the oral employment contract between Mr. Corral and the Petitioners, for amounts above the minimum wage, is contrary to the IRCA, and is therefore illegal under Kansas law and unenforceable under the KWPA. See Petty v. City of El Dorado, 270 Kan. 847, 854, 19 P.3d 167, 172 (2001) (court may void those contract provisions which violate the law).” (Emphasis added.)
Given our rejection of IRCA preemption of the KWPA on Corral’s claim for earned yet unpaid wages, we initially are unclear how his employment contract can violate IRCA and therefore be illegal and unenforceable. The case of Neville, Administratrix v. Wichita Eagle, 179 Kan. 197, 294 P.2d 248 (1956), illustrates our concern. There, the mother of a deceased 16-year-old employee argued that federal law — the FLSA — required that he be 18 years old in order to have performed the hazardous job of operating an elevator. She essentially argued that although he was legally employed under Kansas law — minimum age 16 — he was “unlawfully employed,” i.e., his contract was illegal, pursuant to tire FLSA greater age requirement. 179 Kan. at 201. She argued that as a result, Kansas workers compensation law did not cover her son and its “exclusive remedy” provision did not bar her wrongful death action.
In essentially refusing to find that the federal law preempted Kansas law and made his employment contract illegal, this court held that the son was covered by workers compensation:
“We cannot agree with the appellant’s contention. In filing her action to recover for wrongful death appellant sought relief afforded by the statutes of this state and her rights are measured by our statutes. . . . We hold that the test of the minor’s capacity to enter into an employment contract is that fixed by the laws of this state; that the employment was a lawful one under our workmen’s compensation act, and that the liabilities of the employer for injury resulting in the workman’s death are measured by that act.” 179 Kan. at 203.
Under our district court’s rationale, the Neville court correctly held there was no preemption by the FLSA, but then should have held that tire FLSA applied to malee the employment contract illegal.
Even assuming that our rejection of federal preemption on Corral’s wage claim does not foreclose Coma’s argument that his employment contract violates IRCA, we disagree that IRCA makes the contract illegal and therefore unenforceable. Kansas has not examined this exact issue. Despite the district court’s conclusion that many of the employment statutes at issue in other states are unlike the KWPA, other jurisdictions do provide guidance on the issue of purported illegal contracts with undocumented workers.
Prior to IRCA’s enactment, the Alaska Supreme Court confronted the issue of whether a contract of employment entered into by a Canadian alien was barred by illegality. Gates v. Rivers Construction Co., Inc., 515 P.2d 1020 (Alaska 1973). The court first discussed tire nature of illegal contracts:
“Generally, a party to an illegal contract cannot recover damages for its breach. But as in the case of many such simplifications, the exceptions and qualifications to the general rule are numerous and complex. Thus, when a statute imposes sanctions but does not specifically declare a contract to be invalid, it is necessary to ascertain whether the legislature intended to make unenforceable contracts entered into in violation of the statute.” 515 P.2d at 1021.
The Gates court then concluded that enforcement of the employment contract with the Canadian alien was not barred. It looked at the statutory language:
“[I]t is clear that the contract involved here should be enforced. First, it is apparent that the statute itself does not specifically declare the labor or service contracts of aliens seeking to enter the United States for the purpose of performing such labor or services to be void. The statute only specifies that aliens who enter tills country for such purpose, without having received the necessary certification, ‘shall be ineligible to receive visas and shall be excluded from admission into the United States.’ ” (Emphasis added.) 515 P.2d at 1021-22.
The court next advanced the concept of equity and fairness to the employee:
“Second, that the appellee [employer], who knowingly participated in an illegal transaction, should be permitted to profit thereby at the expense of the appellant [employee] is a harsh and undesirable consequence of the doctrine that illegal contracts are not to be enforced. This result, so contrary to general considerations of equity and fairness, should be countenanced only when clearly demonstrated to have been intended by the legislature.” (Emphasis added.) 515 P.2d at 1022.
Finally, in a general foreshadowing of the benefit described in Flores, i.e., of reducing employer incentives to violate the law, the Gates court stated:
“Third, since the purpose of this section would appear to be the safeguarding of American labor from unwanted competition, the appellant’s contract should be enforced, because such an objective would not be furthered by permitting employers knowingly to employ excludable aliens and then, with impunity, to refuse to pay them for their services. Indeed, to so hold could well have the opposite effect from the one intended, by encouraging employers to enter into the very type of contracts sought to be prevented.” (Emphasis added.) 515 P.2d at 1022.
The IRCA and purported illegal employment contracts were specifically at issue in Majlinger v. Cassino Contracting Corp., 25 A.D.3d 14, 802 N.Y.S.2d 56 (2005). There, an injured undocumented worker sued the contractor and site manager for injuries sustained when the worker fell from a scaffold while installing siding. In addressing whether the award of damages for lost wages was preempted by IRCA, the court held that the defendants could not avoid liability merely because of the worker’s undocumented status. Within this context, the court also discussed changes to immigration law:
“[A] federal statute enacted in 1885 . . . which provided that any contract of employment with an undocumented alien was void, was repealed in 1952 with the passage of the INA [Immigration and Nationality Act] . . . .The INA, with certain exceptions, makes undocumented aliens who seek to enter his country for the purpose of performing labor ineligible to receive visas or to be admitted into the United States .... This alteration of the federal statute indicates that 'Congress determined that the exclusion of certain aliens from admission to the United States was a more satisfactory sanction than rendering their contracts void and thus unjustifiably enriching employers of such alien laborers’ (Gates v. Rivers Constr. Co., 515 P.2d 1020, 1023 [Alaska 1973].) [Citations omitted.] While the IRCA subsequently added provisions prohibiting the hiring of undocumented aliens, the IRCA and the regulations that accompany it ‘do not purport to intrude into the area of what protections a State may afford these aliens.’ [Citations omitted.] In the absence of an explicit statement of Congress’s intent to deprive undocumented aliens of remedies to which they would otherwise be entitled in state courts, such a disability may not be inferred.” (Emphasis added.) 25 A.D.3d at 21-22.
Majlinger also addressed the specific contract illegality issue: “As between the undocumented worker and the employer . . . there is a contract of employment, under which the worker is entitled to be paid for his or her work.” 25 A.D.3d at 24. It found unpersuasive the case law barring recovery of damages for lost income gained from illegal activities, observing that “[a]n undocumented alien performing construction work is not an outlaw engaged in illegal activity, such as bookmaking or burglary [citations omitted]. Rather, the work itself is lawful and legitimate; it simply happens to be work for which the alien is ineligible or disqualified [citations omitted].” 25 A.D.3d at 29. The court held the undocumented worker was entitled to proceed with a loss of wages claim.
Majlinger was affirmed by New York’s highest court in the previously cited case of Balbuena, 6 N.Y.3d 338. There, the Court of Appeals noted that similar to the Immigration and Nationality Act (INA), the IRCA does not penalize an alien for attaining employment without having proper work authorization unless he or she engages in fraud, such as presenting false documentation to secure the employment: “Notably, IRCA does not make it a crime to work without documentation.” 6 N.Y.3d at 360. Because there was no allegation that Majlinger and others had produced false work documents, the court concluded they had not committed a criminal act under IRCA. After recognizing that their presence in this country without authorization was impermissible under federal law, it nevertheless stated: “Standing alone, however, this transgression is insufficient to justify denying plaintiffs a portion of the damages to which they are otherwise entitled.” 6 N.Y.3d at 361.
While the Balbuena court noted, as had the court in Majlinger, that under its case law recoveries had been denied to parties who have engaged in illegal activities, it clarified that
“in those cases it was the work being performed that was outlawed [citations omitted], whereas here, the construction work itself was entirely lawful. Moreover, neither IRCA nor any other federal or state statute makes it a crime to be an employed but undocumented alien, unless the alien secured employment through the use of false work authorization documentation.” 6 N.Y.3d at 361.
Finally, on the specific issue of whether a worker was barred from bringing a state law claim for earned but unpaid wages against his employer because his contract was illegal due to his undocumented status, the court held in Garcia v. Pasquareto, 11 Misc. 3d 1, 3:
“To condone dismissal of actions for wages earned but not paid, regardless of the legal theory employed, on the ground that such labor contracts are ‘illegal,’ would thus directly contravene the public policy of the State of New York and of the United States government.”
Employers’ argument that a worker’s undocumented status malees his employment contract illegal under IRCA and therefore void and enforceable has been rejected in the related area of workers compensation as well. In Design Kitchen v. Lagos, 388 Md. 718, 882 A.2d 817 (2005), the court concluded that because the IRCA does not specifically prohibit undocumented workers from seeking employment, and the definition of “employee” under state law does not exclude employees who are undocumented workers, the employment contract is not illegal. 388 Md. at 739-40; see also Dowling v. Slotnik, 244 Con. 781, 807, 712 A.2d 396 (1998) (because IRCA does not declare it unlawful for an undocumented worker to seek employment and then accept offer of employment, rejected argument that “an employment agreement between an employer and an illegal alien is so tainted by illegality that, as a matter of law, the agreement cannot constitute ‘a contract of service’ ”); Fernandez-Lopez v. Jose Cervino, Inc., 288 N.J. Super. 14, 18, 671 A.2d 1051 (1996) (rejecting argument that petitioner was an illegal alien, that it is against federal law for him to be in and work in this countiy, and that his contract of employment therefore must be illegal); cf. Champion Auto Body v. ICAD, 950 P.2d 671, 673 (Colo. App. 1997) (“Since IRCA did not prohibit the claimant from entering into an employment contract, we disagree with em ployer s argument that tire claimant was under a ‘legal disability’ which prevented him from working.”).
Although Kansas appellate courts have not examined this exact issue in the area of wages, our workers compensation case law does provide some guidance. Just as the district court in the instant case looked to Corral’s employment contract for determining wages, this court has held that in the workers compensation area, “[t]he liability of an employer to an injured employee arises out of contract between them, and the terms of a statute are embodied in that contract.” Lyon v. Wilson, 201 Kan. 768, 774, 443 P.2d 314 (1968) (cited in Jurado v. Popejoy Constr. Co., 253 Kan. 116, 122, 853 P.2d 669 [1993]). And Kansas has allowed undocumented workers, i.e., those with purported illegal contracts of employment, to receive workers compensation benefits under those contracts. See In re Doe, 277 Kan. 795, 803-04, 807, 90 P.3d 940 (2004).
Whether IRCA made the undocumented worker’s employment contract illegal was not directly raised in Doe. Indeed, diere was never an argument that the worker was not entitled to workers compensation because of her illegal alien status. Remarks at all levels of review throughout the opinion cast doubt on whether this was a valid argument. For example, the order of the Board stated: “ ‘[I]f claimant could not legally work in the United States, that factor alone would not prevent her from recovering workers compensation benefits.’ ” 277 Kan. at 805. Upon the district court’s review, it held: “ ‘The simple truth of the matter is that Petitioner bed about her identity on numerous occasions in order to obtain workers compensation benefits. Her entitlement to those benefits is no excuse for intentionally misrepresenting herself.’ ” (Emphasis added.) 277 Kan. at 800. Additionally, this court began its opinion by stating:
“This case presents the question whether a [undocumented] workers compensation claimant’s use of a false name in applying for benefits and lying under oath as to her identity in the proceeding to obtain benefits were fraudulent or abusive acts under K.S.A. 44-5, 120 (1993 Furse) [workers compensation act] even though the claimant was legally entitled to the benefits she received.” (Emphasis added.) 277 Kan. at 796.
Finally, Doe claimed that her testifying falsely or concealing or misrepresenting a material fact was prohibited under the Workers Compensation Act only if she was trying to obtain benefits to which she was not entitled under the Act. 277 Kan. at 801. Inherent in this argument is the general contention that she was legally entitled to the benefits. In rejecting her argument, this court held that “making false statements by lying under oath in workers compensation proceedings are abusive, notwithstanding [her] . . . legal entitlement to the benefits obtained.” (Emphasis added.) 277 Kan. at 802. Indeed, the Doe court observed that in Acosta v. National Beef Packing Co., 273 Kan. 385, 44 P.3d 330 (2002), this same claimant had received $57,936.72 in compensation and further observed that this was still a valid award. 277 Kan. at 806.
We need not decide today whether undocumented workers are entitled to workers compensation benefits because that question is not before us. We do note, however, that the definition of employee in the workers compensation statute is virtually identical to the definition of employee in the wage payment statutes. Compare tire expansive language in K.S.A. 44-508(b), “ workman’ or ‘employee’ or ‘worker’ means any person who has entered into the employment of or works under any contract of service or apprenticeship with an employer,” with that contained in K.S.A. 44-313(b), “ ‘[ejmployee’ means any person allowed or permitted to work by an employer.”
Finally, we agree with KDOL’s position concerning the strong and longtime Kansas public policy of protecting wages and wage earners. As we stated in Burriss v. Northern Assurance Co. of America, 236 Kan. 326, 333, 691 P.2d 10 (1984),
“[tjhroughout the history of this state, the protection of wages and wage earners has been a principal objective of many of our laws. See, for example, K.S.A. 60-2307, originally enacted as G.S. 1868, ch. 38, § 6, providing that otherwise exempt personal property shall not be exempt from attachment or execution for wages; K.S.A. 44-312, enacted in 1901, giving preference to tire payment of wages in the case of receiverships or assignments for the benefit of creditors; the statute restricting garnishment of wages, K.S.A. 60-2310, which reflects the rationale of G.S. 1868, ch. 80, § 490; and the wage payment act, K.S.A. 44-313 et seq., enacted in 1973. K.S.A. 40-3103, like the statutes mentioned above, gives preference to wage earners, in order that they and the families dependent upon them are not destitute.”
KDOL has generally reinforced this strong public policy with its authoring of K.A.R. 49-21~2(b)(6). That regulation not only declares certain agreements diluting employee rights under the KWPA to be per se failures to pay earned wages but it also nullifies those provisions violative of the Act:
“Any agreement by the parties or any requirement by the employer to contravene, set aside or waive any provision or any right created under the act shall be in violation of the act and equivalent to nonpayment of earned wages. Any provision contained in the employment agreement or contract that violates any provision or right created by this act shall not be enforceable, regardless of whether the parties have mutually assented to the provision.”
As a further indication of the strong public policy of protecting wages, the legislature has created a stiff penalty for employers failing to pay wages already earned: 1% of the unpaid wages for every day they are not paid, up to a total of 100%. See K.S.A. 44-315(b).
Accordingly, we conclude that to deny or to dilute an action for wages earned but not paid on the ground that such employment contracts are “illegal,” would thus directly contravene the public policy of the State of Kansas. See Garcia v. Pasquareto, 11 Misc. 3d 1, 3, 812 N.Y.S.2d 216 (2004).
We hold for the above reasons that the district court erred in concluding that Corral’s employment contract was illegal under IRCA and therefore not enforceable under the KWPA.
Issue 2: KDOL did not err in assessing penalties against Coma pursuant to KS.A. 44-315(b).
Next, the KDOL argues that the district court erred in reversing penalties assessed against Coma under K.S.A. 44-315(b). To the extent resolution of this issue necessitates statutory interpretation, this court’s review is unlimited. Schmidtlien Electric, Inc., 278 Kan. at 819.
K.S.A. 44-315(b) provides in part:
“If an employer willfully fails to pay an employee wages as required by K.S.A. 44-314, and amendments thereto, or as required under subsection (a) of this section, such employer shall be liable to the employee for the wages due and also shall be liable to the employee for a penalty in the fixed amount of 1% of the unpaid wages for each day, except Sunday and legal holidays, upon which such failure continues after the eighth day after the day upon which payment is required or in an amount equal to 100% of the unpaid wages, whichever is less.” (Emphasis added.)
Whether an employer willfully failed to pay wages is a question of fact. Holder v. Kansas Steel Built, Inc., 224 Kan. 406, 411, 582 P.2d 244 (1978). Where an “honest dispute” arises over the amount of wages due, a statutory penalty will not be assessed against the employer. Holt v. Frito Lay, Inc., 217 Kan. 56, 61, 535 P.2d 450 (1975) (citing Bradshaw v. Jayco Enterprises, Inc., 212 Kan. 206, 510 P.2d 174 [1973]). However, “ ‘[t]here is generally little room for an honest dispute/ ” 217 Kan. at 61 (same).
In assessing penalties against Coma, the hearing officer stated:
“The law imposes a penalty computed at 1% per day to a maximum of 100% of the unpaid wages if an employer knowingly and willfully fails to pay wages when due. [K.S.A. 44-315] For that law, the court defines ‘a willful act’as‘one indicating a design, purpose or intent on the part of a person to do wrong or to cause an injury to another.’ [Citations omitted.] Whether Respondent ‘willfully’ and ‘knowingly’ withheld payments are issues of fact. [Citation omitted.]
“The actions of the Respondent were willful. The Respondent worked tire Claimant and then refused to pay him for services rendered. Thus penalty of $3,720 shall be assessed.”
We review an agency’s findings of fact, e.g., Coma’s willful failure to pay wages, under a substantial evidence standard. See K.S.A. 77-621(c)(7). Substantial evidence supports the heating officer’s finding. Here, Coma undisputably employed Corral during the 6-month period. As stated by the hearing officer, “[t]he evidence as to the agreement, the work done and the payment of some wages is not conflicting and presents no issue of fact.” Coma called no witnesses to refute Corral’s evidence.
Despite substantial evidence establishing a willful violation, the district court vacated the penalty, declaring that imposing a penalty for the benefit of an undocumented worker was not intended by the legislature.
“In this Court’s view, the award of the statute of the statutory penalty to an illegal alien tips tire scale too much towards providing an incentive to illegal aliens to work in the United States and ‘trivializes’ the IRCA. Imposing the penalty for a willful violation also improperly serves to punish an employer (and reward an illegal alien) for willfully refusing to do something which is expressly forbidden by the IRCA. The Kansas Legislature could not have intended such a result. The competing economic incentives and the policy objective of not employing illegal aliens are best served if Mr. Corral’s remedies are limited to compensatory damages of unpaid minimum wages and interest.” (Emphasis added.)
As suggested by the district court, the fundamental rule to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained. Schmidtlien, 278 Kan. at 822. However, when a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be. See 278 Kan. at 822. The statute, K.S.A. 44-315(b), does not carve out any “illegal alien” exception. Its language is plain: “If an employer willfully fails to pay an employee wages as required by K.S.A. 44-314 . . . such employer shall be liable ... to the employee for a penalty . . . .” (Emphasis added.)
Corral was a “person allowed or permitted to work by an employer,” and was therefore an employee of Coma. See K.S.A. 44-313(b). Coma willfully failed to pay its employee his earned wages; Coma is therefore properly penalized under the plain language of tire statute. The district court erred in reversing imposition of the penalty. To address the district court’s concerns, the legislature may always consider amending the statute to provide that the civil penalty be awarded to the state and not to the undocumented worker. Cf. K.S.A. 44-5, 120(k) (penalties imposed against the employer in workers compensation are paid to the workers compensation fee fund).
Coma also asserts that the KDOL erred in assessing the penalty because Corral acquiesced to a modification of the oral contract. According to Coma, Corral was told he would get paid once the restaurant started getting “more business,” which Coma essentially argues is an unmet condition precedent to payment of his wages. However, the record on appeal does not reveal that Coma ever raised the acquiescence argument to the district court; it was not raised by or responded to by KDOL in its response, nor does it appear in the district court’s written judgment. Because it appears for the first time before this court, we will not consider it. State v. Puckett, 230 Kan. 596, 640 P.2d 1198 (1982). We have reviewed Coma’s other arguments and conclude they have no merit.
The judgment of the district court is affirmed in part and reversed in part. The judgment of the Kansas Department of Labor is affirmed.
Allegrucci, J., not participating.
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The opinion of the court was delivered by
Beier, J.:
Defendant Debora J. Green appeals the district court’s decision denying her motion to withdraw her no contest plea to two counts of capital murder, one count of attempted capital murder, and one count of aggravated arson.
Underlying Facts and Procedural History
In the early hours of October 24, 1995, a fire destroyed the Prairie Village home of defendant and her estranged husband, killing two of their three children. Defendant and one of her daughters escaped the fire; defendant’s husband was not at the home at the time.
On November 10,1995, the Eastern Kansas Multi-County Task Force issued a report determining that the fire “was an intentionally set incendiary fire caused by ignition of a liquid accelerant applied throughout the structure on the main and second floors”; the fire had “multiple points of origin,” including a suspicious area of self-contained fire in the vanity of the master bathroom; “liquid accelerant pour patterns and an unusual magnitude of low burn” were identified; isoparaffins, associated with ignitable liquids, were detected in debris; and “all accidental and natural causes for the fire [such as an intruder, or gas or electrical causes] were eliminated.”
These events, coupled with a recent near-fatal ricin poisoning of defendant’s husband, supported charges against defendant of two counts of capital murder, one count of attempted capital murder, aggravated arson, and one count of attempted first-degree premeditated murder.
On February 12, 1996, the district court judge ordered defendant to submit to a competency evaluation. Although Dr. Marilyn Hutchinson later expressed concerns about defendant’s state of mind on the night of the fire, Hutchinson declared defendant competent to stand trial.
The Plea Hearing
On April 17, 1996, defendant agreed to plead no contest to all charges. In exchange, the State agreed not to seek the death penalty and recommended that her sentences run concurrent. The State submitted a 17-page proffer of the evidence it would submit at trial, which tire district judge had the prosecutor read into the record. In addition to the information from the task force report on the cause of the fire, the following summarizes the evidence included in the proffer:
• Defendant and her husband, both medical doctors, had a troubled relationship. Defendant’s husband had expressed his desire to divorce. They had separated, and the husband had moved out of their Missouri home. At some point, defendant and her husband considered reconciling and buying the Prairie Village home; defendant’s husband withdrew his offer on the house after expressing uneasiness with resuming a marital relationship. Shortly thereafter, on May 21, 1994, the house they owned in Missouri was significantly damaged by a fire, and they did purchase the Prairie Village home.
• In July 1995, defendant’s husband began an extramarital relationship with a woman named Margaret Hacker, and, in late July or early August 1995, he again expressed his intent to obtain a divorce. Defendant’s behavior became erratic; she drank heavily; she was unable to supervise the children; she threatened herself and others; and she acted in other inappropriate ways.
• On August 4,1995, defendant called her husband, saying she had left the residence and was walking the streets of Kansas City, hoping someone would kill her. On August 5, her husband came home to find her in the residence; she later told him that she had been hiding under a bed in the basement in an effort to malee him woriy.
• Beginning August 11, defendant’s husband became ill, and as time progressed, his condition worsened. He was hospitalized on August 18, 1995, and his physician considered his condition life-threatening. After his condition stabilized, he was released to defendant’s home on August 25, 1995. He was home for a few hours, when, after eating, he became violently ill again. He was hospitalized again, stabilized, and released on August 30. After going home, he became ill again on September 4, and his illness forced him back into the hospital, where he stayed until September 11. At the time, physicians were unable to pinpoint the cause of his illness, but they had not tested him for poisoning.
• Investigators determined that, before each of the defendant’s husband’s hospitalizations, he had ingested food served by defendant. After the fire, a sample of defendant’s husband’s blood was sent, among other places, to the Naval Research Laboratoiy in Washington, D.C. Testing occurred between November 17 and November 22, 1995; and experts ultimately concluded that his blood had been exposed to ricin, an extremely toxic substance that can be extracted from castor beans. Defendant had an undergraduate degree in chemical engineering.
• Defendant’s behavior continued to be erratic after her husband’s release in mid-September, and he remained in the home because he was concerned about defendant’s ability to care for their three children. He ultimately attempted to have defendant committed to a mental institution, summoning police officers to transport her for a mental evaluation on September 25,1995. Officers discovered her in bed, intoxicated. She was screened by Dr. Pamela McCoy, the emergency room physician, who stated that when defendant’s husband came in, defendant spat at him, called him a “fuck hole” and told him “you will get the children over our dead bodies.” Defendant’s husband showed McCoy defendant’s purse, which he had found in the residence. It contained several vials of sodium chloride and packets of castor beans. Also in the purse was an Olathe Earl May Garden Center receipt dated August 7, 1995. Subsequent investigation revealed an address book with an entry in defendant’s hand for an Earl May Garden Center in Olathe.
• Subsequent investigation also revealed that a second purchase of castor beans had been made on September 20, 1995, from a North Kansas City Earl May. The assistant general manager of the store confirmed defendant’s identity and said she had special-ordered the packets. September was an unusual time to purchase castor beans, because their growing season was over. Defendant had told the manager the beans were for her child’s science fair project. Investigators determined that none of the defendant’s children were involved in such a project.
• On October 5, 1995, defendant’s husband moved out of the home and into an apartment complex nearby. During the next few days, defendant continued to act in a bizarre manner, which included heavy drinking.
• On the evening of October 23, defendant’s husband picked up two of the children; took them to a hockey game; and returned them to the Prairie Village home at 8:45 p.m. He then went to Hacker’s house and was there until 11:30 p.m. He said he then drove to his apartment and called the defendant’s residence. He and defendant argued. He told her he was concerned about her drinking and bizarre behavior, and about the possibility that she had tried to poison him. He told officers later that he told defendant she had better straighten up or he would call authorities; he also told officers that he was very angry during the conversation and that it ended abruptly about midnight.
• At 12:21 a.m. on October 24, the police dispatcher received a hang-up 911 call from defendant’s residence; police and fire units were dispatched and arrived at 12:27 p.m. to a house fully involved in fire.
• At tire scene, Corporal Steve Hunt was approached by a “panic stricken” young girl, determined to be Kate Farrar, who asked him to save her brother and sister, who were still in the house. Defendant’s neighbors immediately suspected defendant was re sponsible for the fire. Defendant remained casual and nonchalant during interviews with police; she said she fell asleep in her room with the door closed; an alarm awakened her; she opened the bedroom door, saw smoke, closed the bedroom door, and went outside through a sliding glass door in her bedroom. She did not ask whether her two other children were alive or dead for at least an hour after her interview began. She said that, as she was exiting the house, she heard her son, Timothy, calling through the intercom. She told him to “stay in the house and let the professionals rescue you,” even though she knew he had crawled out of his bedroom window to the outside on numerous occasions in the past.
• Physical evidence revealed that defendant’s bedroom door was open during the fire, which was inconsistent with her version of events. Defendant’s hair was singed, which was also inconsistent with her version and consistent with use of accelerant. Discovered on the bed in defendant’s bedroom after the fire was a book entitled “Necessaiy Lies”; its plot involved several children burning to death in an intentionally set house fire; defendant had gotten the book from the public library. Library records also revealed that defendant had recently checked out several books dealing with intrafamilial homicide.
At defendant’s plea hearing, her counsel stated that the defense would certainly challenge some of the State’s evidence, but the defendant understood that the material above would be presented to the jury if the case proceeded to trial. Defendant then read a prepared statement, saying:
“I am aware that the State can produce substantial evidence that I set the fire that caused the death of my children. My attorneys are ready willing and able to present evidence that I was not in control of myself when Tim and Kelly died.
“However true that may be, defending myself at trial on these charges would only compound the suffering of my family and my daughter, Kate. I love my family very much. I never meant to harm my children but I accept the fact that I will be punished harshly. I believe that it is best to end this now so that we can begin to heal from our horrible loss.”
Finding a sufficient factual basis for defendant’s guilt on each count, the district judge accepted her plea and imposed a control ling hard 40 life sentence for one of the capital murder counts, ordering all of the additional sentences to run concurrent.
The Motion to Withdraw Plea
On March 22, 2004, defendant filed the instant motion to withdraw her plea as to all counts except the attempted first-degree murder of her husband, citing manifest injustice under K.S.A. 22-3210(d). She argued that evidence of new advances in the science of fire investigation, had they been known at the time of her plea, would have rendered the factual basis of the arson charge, and thus the capital murder and attempted capital murder charges, unreliable and insufficient.
Specifically, she argued that investigators conduct investigations in accord with the .National Fire Protection Association’s code, NFPA 921: Guide for Fire and Explosion Investigations, which is the de facto standard of care in the fire investigation industry. In 1995, the task force conducted investigations under the 1992 manual; that manual was updated in 2001, and again in 2004. She asserted that the new version of NFPA 921 suggested that several of the factors the task force had relied upon to conclude the fire was the result of arson were inaccurate and might have been attributable to other phenomena.
According to defendant, the fire’s “multiple points of origin”— which is “almost always” indicative of arson — were more plausibly explained as “falldown” fire; the “pour patterns,” low bum patterns, and the speed and intensity of the fire were better explained by the now more fully understood phenomenon of “flashover” rather than application of an accelerant; and isoparaffins, although associated in 1995 only with a short fist of ignitable fluids, were now associated with a long fist of commonplace household products, innocently explaining their presence in the debris of the home.
Defendant acknowledged that the State’s theoiy for the fire was “based on the best information available at the time,” and that her no contest plea was based on this same information. However, she argued, fire science and investigation had advanced so much over the past decade that the theory put forward by the State “cannot possibly be trae.”
In a supplemental motion to set aside her plea, filed August 2, 2004, defendant reiterated her argument and added that the factual basis for her plea should be reviewed under a heightened reliability standard because she had faced the possibility of the death penalty.
The district court held a preliminary evidentiary hearing on October 12, 2004, to discuss discovery; the district court limited the plea withdrawal proceeding to “evidence that this could not have been an arson fire.”
In a second supplemental motion, filed January 3, 2005, defendant argued that the court should declare the plea bargain void or permit her to withdraw her plea because the death‘penalty had been declared unconstitutional in State v. Marsh, 278 Kan. 520, 102 P.3d 445 (2004).
The hearing on defendant’s motion was held on January 10, 2005, before the same judge who had presided at tire plea hearing. As a threshold matter, the prosecutor argued that the hearing should not go forward because the defendant’s expert was not able to say that the fire was not arson. “Their expert is going to say this fire is an undetermined origin and that isn’t enough ... to reopen a case nine years after a defendant pled because you’ve got a new expert that’s going to say well, I disagree with this part or that part but I can’t tell you what caused this fire . . . .”
Defendant argued that the central question before the court was whether reasonable doubt now infected the factual basis for her plea. In her view, the defense need not disprove arson, but need only prove the State could not have proved it beyond a reasonable doubt.
Expert Testimony
Defendant presented the expert testimony of Dr. Gerald Hurst. Hurst had reviewed the file associated with defendant’s case, which included several hundred photographs, the police incident log, the task force and fire investigation reports, reports of interviews with firemen and first-responding officers, and complete sets of analyst drafting runs and laboratory results. He opined that since 1995 there had been advancements in the field of fire investigation, particularly in relation to a phenomenon called “flashover” burning. He said it is now known that flashover can cause several of the physical indicators upon which the task force had based its arson conclusion. In particular, “pour patterns” are no longer considered a reliable indicator of use of an accelerant if a fire has progressed to flashover.
“Flashover,” as that term is now used in fire investigation, occurs over a short period of time when the heat output of a burning object or a group of objects in a room generates a smoke layer that banks down from the ceiling and reaches a critical temperature — • in the range of 500 to 600 degrees centigrade. At that point, radiation becomes so intense that it ignites every exposed combustible surface in the room. Before flashover, there is a hot smoke layer in the top of the room that is clearly divided from clear cool air below; at flashover, the division between hot and cold disappears; everything exposed, often in just a few seconds, springs into flame; and intense “post-flashover” burning occurs. The speed and intensity associated with flashover can result in the charring of baseboards and large bum holes in floors that resemble irregular, pool-shaped “pour patterns.” Under today’s investigatory standards, Hurst testified, such patterns do not lead to a conclusion that accelerant has been applied. Rather, such evidence is more likely to support a determination that flashover occurred.
Hurst also testified that a more plausible explanation for what the task force had called a suspicious self-contained fire in a vanity drawer of the master bedroom — despite the lack of damage to the master bedroom or bath — came from “falldown,” i.e., embers from a burning beam that had fallen in the vicinity and ignited combustible fluids in the open drawer. Also supporting this conclusion, he said, were firefighter reports. The reports indicated firefighters entered the bathroom window and would have walked past the vanity into the bedroom. They showed only light smoke; fhe fire was in the hallway and starting to come in the bedroom door. Hurst believed this supported his theory that the vanity drawer fire began later.
Hurst suggested that a separate fire near a basement bar, which the task force had characterized as a separate point of origin attributable to an accelerant pour, was more likely to have been caused by one of the firefighters tracking embers from falldown a few feet away.
Hurst also suggested that positive testing for the presence of accelerants was likely to have come from common household products not used to set the fire. Accelerants discovered in a small closed container in the kitchen pantiy were likely paint or mineral spirits. Hurst also suggested that, in the garage, which was not severely damaged, a labeled jug of Gulflite charcoal lighter fluid had been knocked over; it could have been tracked into the house by firefighters and created false positives.
Hurst’s ultimate conclusion was that a lack of evidence of accelerant indicated the fire could have been accidental and that it progressed to flashover and full room involvement. Holes in the floor were not the results of liquid accelerant pour patterns but of post-flashover bum. Flashover, falldown, and human error provided a better explanation for the fire than arson. In his view, given the evidence, it was less likely that defendant had poured accelerant throughout the house and started separate fires in different areas, as the task force concluded. According to Hurst, a fire investigator cannot declare a fire to be the act of arson unless and until he or she has specifically eliminated all reasonably possible natural and accidental causes. If an investigator cannot do so, then the cause of the fire must be declared to be undetermined.
On cross-examination, Hurst was unable to state affirmatively that the fire was accidental, yet he maintained that accident could not be ruled out. Ultimately Hurst stated that he did not know what caused the fire. He acknowledged that the phenomenon of flashover was known at least by 1992 to the “leading experts in the country,” but said it was not widely known.
One of the “leading experts” referred to by Hurst, Dr. John David DeHaan, was called to testify at the motion hearing by the State. DeHaan had also reviewed the extensive file in tire case. He discussed the areas of damage, noting that the most extensive damage centered around the middle of the house, primarily the rooms around the stairway, with much less damage to the master bedroom. Like Hurst, DeHaan testified that the evidence suggested flashover in much of the middle of the house.
DeHaan then discussed the interaction between flashover and pour patterns. He agreed with Hurst in certain respects. For example, if a floor covering is burned through in a localized area by a pour, then radiant heat produced as the room approaches flash-over can accentuate that damage. But even if there was no accelerant poured, the intense combustion at floor level triggered during flashover can cause irregular puddles that mimic the presence of flammable liquid pour patterns. In essence, the effects of flash-over can obscure the presence of pour patterns, or can create damage that looks like pour patterns, even if there were none.
DeHaan suggested that the only way to tell if accelerant was used is to detect it in some area protected from radiant heat and/ or flashover combustion or, more reliably, in a room that has not flashed over, where vestiges of accelerant will probably be detectable if present at all. The evidence from defendant’s house yielded two positive samples of accelerant in areas that had not flashed over. One was on carpet just inside the master bedroom door. Although a portion of the hallway outside the door had flashed over, the bedroom was undamaged. The sample contained an isoparaffinic petroleum product, consistent with charcoal starter fluid. DeHaan testified that, even if the charcoal fluid had been tracked in from the garage by firefighters, it would not have resulted in a positive lab test on the other side of the house; published experiments indicate such traces test negative after two or three steps.
DeHaan also testified that the isolated fire in the vanity drawer was not a likely result of falldown because the vanity itself was completely intact; there was no “communication” or “route” to that isolated fire. The only explanation was that a separate fire was started in the drawer.
Regarding the basement, DeHaan agreed with Hurst that the fire in the basement was small, that the room did not flashover, and that no accelerant was detected. There was no damage to the celling and no evidence of falldown. DeHaan identified particles of cloth and paper, suggesting that these may have been ignited to cause the fire in the basement.
DePIaan also testified about the fire dynamics of the defendant’s house. The house was designed along a long hallway, with one large open area in the front and center where the stairway went up, perpendicular to the main floor hallway, to the second floor. Because fire naturally vents up and out, DeHaan testified, this open stairway would have acted as a chimney, and an accidental fire started at any point on the main floor would have flowed predictably, extending into the central entryway and up to the second floor. This fire, in contrast, was unnatural. There was damage at both ends of the main floor hallway. Given the home’s size, layout, and the fact that it was occupied, DeHaan concluded the fire “had traveled to more places by the time [the occupants detected it and] public safety people arrived . . . than I could explain by any single source of fire traveling by normal means.”
DeHaan also concluded that protection marks, extending from the door jamb, clearly demonstrated the door to the master bedroom was open during the fire, which was, again, inconsistent with defendant’s version of events.
Although DeHaan also agreed with Hurst that fire investigators must reject all alternative hypotheses before forming an opinion and that, if this cannot be done, a fire’s cause must be categorized as “undetermined,” he ruled out accident and concluded that “this fire was deliberately ignited, multiple locations in the structure, based on all the evidence that was presented, and probably included the use of an ignitable liquid.”
On cross-examination, DeHaan acknowledged that the use of ignitable fluid was a probable conclusion. He could not estimate how extensively it was used and agreed it was not used throughout the house. However, he opined that some amount of accelerant was certainly used, and that direct ignition accounted for other points of origin.
DeHaan also acknowledged on cross that the reasons for his arson conclusion differed from those of the task force. Under today’s fire investigation standards, which include improved understanding of flashover, he admitted that the task force was incorrect to the extent it relied exclusively on the existence of pour patterns to conclude that an accelerant was used.
The State also called David H. Campbell, a firefighter and veteran cause-and-origin investigator, who disagreed with Hurst that flashover inevitably negates preexisting pour patterns. Campbell also disagreed with both experts in that he believed one could rely on a pattern to determine whether it was caused by an accelerant pour. Campbell testified he could determine, by observing a pour pattern and the scene as a whole, whether the pattern was caused by flashover, falldown, or accelerant; “[a] pour pattern has a total different look to it than a flashover pattern does.”
Campbell also said that, even with his knowledge of flashover and falldown, he agreed with the task force observation that there were “ghost” patterns consistent with pouring of accelerant in the house entryway and up the stairs leading to the second floor. In addition, he testified that the patterns in the master bedroom revealed liquid burn, consistent with pouring of ignitable liquid that burned and ran back out to the hallway. While he could not rule out flashover to explain damage to the hallway, he testified that the evidence was more consistent with accelerant pour because there was not enough fuel in the form of furnishings or other combustible material or objects in the hallway to generate the heat required for flashover. Ultimately, Campbell opined that “the fire was intentionally set with the aid of combustible liquid and multiple fire sets.”
The District Court’s Decision
In its memorandum decision denying the instant motion, the district judge set out the standard codified in K.S.A. 22-3210(d), which gives a district court discretion to permit withdrawal of a plea after sentencing and set aside a conviction in order “[t]o correct manifest injustice.” The judge agreed with defendant that a plea must have a “sufficient factual basis”; and that, in deciding that issue, the court “must be satisfied that all elements of the crime charged are present.” The district court determined that, as all parties had earlier agreed, there was “substantial evidence” supporting the charges at the time of defendant’s plea.
The district court adopted defendant’s suggestion that new evidence may form the basis for permitting withdrawal of a plea. However, he found defendant’s “new evidence” insufficient. “[Defendant contends that because of advances in the science of fire investigation the State’s evidence could no longer support a conclusion that the fire was the result of arson. After three days of mostly expert testimony, it is clear that defendant’s evidence falls considerably short of proving that contention.”
The judge further stated:
“There is substantial and compelling evidence to believe [defendant started the fire at her residence.] This evidence is not changed by a deeper understanding of the details or behavior of the fire once it was started. Defendant fails to show that the evidence as a whole would not support a finding of guilt if the case were to now go to trial or that tire factual basis presented by the State now fails to support the plea entered in 1996. The factual basis . . . was, and remains, sound.”
The district judge also concluded that defendant’s plea was knowingly, voluntarily, and intelligently made. He had taken care to ensure she understood the implications of her decision to plead no contest, that she understood the substantial evidence against her, and that she considered the harsh punishment she could face.
Finally, the district judge also addressed defendant’s argument that Marsh, 278 Kan. 520, required the court to allow withdrawal of her plea. He ruled that our later Marsh decision striking down the death penalty did not affect defendant’s case, “fiad this defendant not entered into a plea agreement, a penalty of death could have been sought by the State, determined by a jury, and imposed by the court.” Thus defendant had received the benefit of her bargain: life in prison and concurrent sentences. Under all of these circumstances, there was no manifest injustice justifying withdrawal of defendant’s plea.
On this appeal, defendant withdrew her claim based on Marsh, 278 Kan. 520, in light of the United States Supreme Court decision in Kansas v. Marsh, 548 U.S. 163, 165 L. Ed. 2d 429, 126 S. Ct. 2516 (2006), which reversed our decision. Defendant also withdrew a cumulative error argument.
Analysis
As a preliminaiy matter, defendant cites, inter alia, Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969), for the proposition that we should review the factual basis supporting her plea under a heightened reliability standard because she was facing the death penalty at the time of her plea. Defendant is correct that, in the context of a capital sentence, this court has required a heightened degree of reliability. See State v. Kleypas, 272 Kan. 894, 1036, 40 P.3d 139 (2001), cert. denied 537 U.S. 834 (2002); see also State v. Bethel, 275 Kan. at 457-58, 66 P.3d 840 (2003). However, where no sentence of death was imposed, this court is not required to review a case under this more stringent standard. See Bethel, 275 Kan. at 457-58 (“[b]ecause of the State’s agreement not to pursue the death penalty, [defendant] is not directly affected by it and cannot raise issues” concerning its constitutionality). On this review, defendant is entitled to no protections beyond those set forth in K.S.A. 22-3210 and interpreting case law, and those required by due process.
As this court has often stated, motions to withdraw plea are governed by K.S.A. 22-3210(d), which reads:
“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. To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea.”
Under this section, the decision to deny a motion to withdraw a plea, even after sentencing, lies within the discretion of the district court. That decision will not be disturbed on appeal absent a showing of abuse of discretion, and the defendant bears the burden of establishing it. Judicial discretion will vary depending upon the character of the question presented for determination. Generally a district judge’s decision is protected if reasonable persons could differ about the propriety of the decision, as long as the decision was made within and takes into account any applicable legal standards. An abuse of discretion may be found if a district judge’s decision goes outside the framework of or fails to properly consider statutoiy limitations or legal standards. State v. Shopteese, 283 Kan. 331, Syl. ¶ 2, 153 P.3d 1208 (2007); State v. Edgar, 281 Kan. 30, 38, 127 P.3d 986 (2006).
In evaluating a post-sentencing motion to withdraw a-plea, the district court should consider: (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. See State v. Bey, 270 Kan. 544, 545, 17 P.3d 322 (2001).
Defendant’s legal position relies on two arguments that merit discussion. First, she argues that new evidence can require post-sentencing withdrawal of a plea. Second, she argues that she need only demonstrate the current existence of reasonable doubt in order to undermine the past factual basis for her plea.
With regard to her first argument that new evidence can require post-sentencing withdrawal of a plea, we note first that new evidence is not among the explicit considerations in K.S.A. 22-3210(d), even as supplemented by case law and due process requirements. However, we have discussed the withdrawal of a guilty plea based on newly discovered evidence.
In State v. Walton, 256 Kan. 484, 489, 885 P.2d 1255 (1994), Robert S. Walton alleged that evidence discovered after the entry of his plea exonerated him, thus providing “good cause” under K.S.A. 22-3210(d) for granting his presentencing motion to withdraw. The district court conducted a full hearing, considered all the evidence, and concluded that Walton’s plea was informed and voluntary. Furthermore, because the new evidence did not exonerate Walton, there was no basis for withdrawing tire plea.
More recently, in Bey, 270 Kan. at 558-59, the defendant sought to withdraw his plea, arguing new evidence allowed him to do so. He pointed to statements allegedly made by the jail mate of a codefendant, which implicated the codefendant rather than the defendant in the victim’s shooting death. The district court considered the statements and determined that they did little to exonerate the defendant. On appeal, the defendant urged this court to draw an analogy between his motion and one for new trial. We did not clearly adopt his invitation on the way to affirming, Bey, 270 Kan. at 557-59, but we acknowledged that there must be a factual basis for a plea and that a district court determining whether such a factual basis exists must establish that all elements of the charged crime are present. Bey, 270 Kan. at 546 (citing State v. Shaw, 259 Kan. 3, Syl. ¶ 1, 910 P.2d 809 [1996]).
It is obvious that, if new evidence disproves an element of a crime, then the factual basis for a guilty or nolo contendere plea to the charge of committing that crime is undermined. It is a defendant’s burden to prove that the factual basis of a plea is so undercut by new evidence that the prosecution could not have proved its case beyond a reasonable doubt. In such a situation, the court may permit withdrawal of the plea and may set aside the resulting conviction, because doing so corrects manifest injustice under K.S.A. 22-3210(d) and comports with due process.
Defendant’s further argument that she need only demonstrate the current existence of reasonable doubt in order to undermine the past factual basis for her plea is simply without merit. Even if we assume for the moment that the evidence adduced at the hearing on her motion to withdraw plea was sufficient to establish the current existence of reasonable doubt, at the time the district judge accepted defendant’s plea, his charge was to determine the existence of a factual basis for it at that time and in that place. He was not required to foretell the future and anticipate its effect on the fire science underlying the task force conclusion.
Defendant’s argument reflects a basic misunderstanding of the plea process. Entry of a plea of guilty or nolo contendere necessarily implies acknowledgment by all concerned — the defendant, the State, and the court — that a jury could go either way and that a risk-benefit analysis has taken place on both sides. The prosecution and the defense have something to gain and something to lose in any plea bargain. They malee their peace with the trade-off in exchange for reducing the uncertainty of their situation. Instead of leaving it up to a jury to acquit or convict, to recognize or fail to see any reasonable doubt that may exist, they cut a deal. The requirement that a judge confirm the factual basis of a plea is not a mandate that he or she sit in place of a jury and evaluate reasonable doubt as a matter of law. It merely requires the judge to ensure that the State has enough proof to support each element of the crime. It is not necessary that the proof be particularly persuasive, even at that time and in that place, much less that it will stand the test of time and advancing human understanding. It need only be sufficient for a reasonable factfinder to arrive at a guilty verdict.
On the facts of this case, we conclude that the district court did not abuse its discretion in denying defendant’s motion to withdraw her plea. The district court appropriately considered whether defendant was represented by competent counsel; whether she was misled, coerced, mistreated, or unfairly taken advantage of; and whether her plea was fairly and understandingly made. See Bey, 270 Kan. at 545. Relevant to these standards, we observe in particular that defendant was represented by three very experienced attorneys; she was not misled about the quality of the State’s evidence against her; and the mere existence of the death penalty as a potential penalty for the offenses with which she was charged did not amount to coercion. Further, her articulate colloquy at the plea hearing demonstrated that her plea was fairly and understandingly made.
Most important, however, in view of defendant’s specific argument, we hold that defendant has not brought forward new evidence. At best, she has developed a competing interpretation of old evidence. Hurst’s testimony about advances in fire science and their potential effect on the reasoning and conclusion of the task force did not disprove an element of any of the crimes on which defendant entered her plea. DeHaan’s and Campbell’s testimony demonstrated that arson was still very much alive as an explanation for the fire. It was not ruled out; it was merely challenged.
In addition, we are compelled to note that defendant’s focus on advances in fire science ignores the inescapable. The task force conclusion was far from the only evidence supporting the aggravated arson and other charges. The State’s proffer included an abundance of other evidence pointing to the defendant’s guilt. Its largely circumstantial nature would not have detracted from its value in support of any ultimate conviction. See State v. Dixon, 279 Kan. 563, 621, 112 P.3d 883 (2005); State v. Holmes, 278 Kan. 603, 632, 102 P.3d 406 (2004).
Given all of the above, we hold that defendant did not meet her burden to demonstrate that the factual basis for her plea is so undercut by new evidence that the prosecution could not have proved its case beyond a reasonable doubt. There was no manifest injustice to correct, and the district judge did not abuse his discretion in so ruling.
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The opinion of the court was delivered by
Luckert, J.:
Taurus Adams was convicted by a jury of premeditated first-degree murder, in violation of K.S.A. 21-3401(a), and criminal use of a weapon, a class A misdemeanor, in violation of K.S.A. 21-4201. Adams now appeals from his conviction for premeditated first-degree murder, arguing (1) the prosecutor committed misconduct during closing argument, (2) the trial court erred by giving the jury instructions on premeditated first-degree murder and its lesser included offenses in descending order of severity, and (3) the trial court erred by instructing the jury regarding criminal intent and premeditation in a manner that impermissibly lessened the State’s burden of proof. We reject Adams’ arguments and affirm his conviction.
Factual and Procedural Background
On the night of December 23, 2007, a fight broke out near a bar at The Legends in Kansas City, Kansas. Defendant Adams was at the scene with two friends, twin brothers Jeff and Jake Lichtenberger. The victim, Ratsamy Phanivong, was at the crowded bar to celebrate a friend’s birthday.
Adams explained at trial that, on the day of the shooting, he was moving out of his residence into his parents’ house and had loaded a few items into his car, including clothing, computer equipment, and his gun. Because the gun and ammunition were expensive, Adams did not want to leave them in the car, so he placed those items in his pockets.
That night, Adams, Jeff, and Jake went to a party. When they left the party, Adams was ready to go back to his parents’ house, but the twins wanted to go to The Legends for a drink. They drove to The Legends, and Jeff and Jake went into the bar while Adams and another friend, Wes Murphy, stayed in the car.
Inside the bar, Jake made his way onto the dance floor. As Jake was dancing, a man confronted him about looking at his “girl” or dancing with her. The man asked if Jake and his brother wanted to go outside and fight. Then, Phanivong walked up and shoved Jake backwards a foot or two. Jalee threw his beer in Phanivong’s face. A group of Phanivong’s friends walked up, but bouncers broke up the ruckus and told Phanivong to leave the bar. A short time later, the bouncers also told the twins to leave because of the drink-throwing incident. About that time, Adams, who had gotten cold in the car, came into the bar, asking for the car keys. The three friends left the bar together.
According to Jeff s trial testimony, as Adams and the twins turned to walk to the parking garage, Phanivong, who had not left the vicinity, saw them and asked Jeff, ‘Who threw that drink in my face?” Jeff did not want any trouble so he told Phanivong that “we didn’t throw the drink.” Adams and the twins were walking away when Phanivong took a swing at Jeff, hitting the back of his head. Jeff briefly fell to the ground and got back up. Adams jumped between Jeff and Phanivong and said they were not looking for trouble. With that, Phanivong punched Adams in the head. Adams pulled out a .40 caliber handgun from his waistband and fired two fatal shots at Phanivong. Adams and the twins ran to their car, while Adams repeatedly said, “Let’s go, let’s go, let’s go.” They could not drive away, however, because security guards and bouncers detained them.
Another witness, Phanivong’s friend Bounkhong Inhnarath who had left the bar with Phanivong, testified to a slightly different version of events. According to Inhnarath, while inside the bar, Phanivong argued with someone (apparently Jalee) who threw a drink in Phanivong’s face. A bouncer escorted the two friends out of the bar through a side door. It was a cold night, and Inhnarath used his cell phone to call another friend, who was still inside the bar and who had driven them to the bar. While waiting for their driver to exit the front door of the bar, Phanivong and Inhnarath encountered Adams, Jake, and Jeff exiting the bar. Inhnarath was waiting by the door, and Phanivong was waiting further back. After the three men passed by Inhnarath, Phanivong yelled to his friend that those were the guys who “started shit with me inside.” Adams and the twins approached Phanivong and another altercation ensued, during which Inhnarath heard Adams say, “You want some of this?” From where he stood, Inhnarath did not see anybody throwing punches, although he admitted that he heard a “moving noise like almost like a thumping noise.” Adams then pulled out a handgun and fired two shots at Phanivong, killing him. Inhnarath testified that when Adams pulled out the gun, Phanivong started slowly backing up.
Waleed Shabibi, a friend of Phanivong and Inhnarath, also testified. He explained that he and his girlfriend arrived outside at the bar as Inhnarath was calling the person who had driven him to the bar. According to Shabibi, Phanivong and Inhnarath were upset about the beer-throwing incident and being ejected from the bar. Shabibi testified that he was walking his girlfriend to the front entrance of the bar when he heard Phanivong and Inhnarath arguing with the other three men. Almost immediately after noticing the argument, Shabibi saw two muzzle flashes and heard shots.
Another witness, Stephanie Couch, was leaving the bar with some friends when she noticed a scuffle between two “groups”— two men who she initially thought were of Hispanic descent but later determined were of Asian descent against two Caucasian men and an African-American man. Phanivong and Inhnarath are of Asian descent, Jake and Jeff are Caucasian, and Adams is African-American. Couch noticed yelling, arguing, and “some punches.” She testified that she “heard screaming . . . about a girl.” Couch saw one man of Asian descent and one Caucasian throw a punch. She thought the Caucasian’s punch made contact, although no one fell to the ground. Couch testified that the African-American man drew his gun and shot.
Several other eyewitnesses testified. One saw a man of Asian descent punching someone in a group of three, then saw a man pull out his gun and heard him ask, “You sure you wanna do this?” The man then fired shots. A security guard was standing inside the front entrance of the bar before the shooting. He watched Adams and the twins as they walked from the bar and then saw Phanivong and Inhnarath approach them. He testified that he saw them arguing, and one of the men of Asian descent was “a little more excited than everyone else” because he was “moving his arms around.” According to the security guard, no punches were exchanged, and he was preparing to call for help in breaking up the argument when two shots were fired.
Adams testified in his own defense. He told the jury, “I’m not guilty. I was just defending myself.” Adams explained that as he left the bar with his two friends, he was in the lead. He noticed one man waiting outside the door, later identified as Inhnarath, and another man, later identified as Phanivong, further back. Phanivong walked up to Jeff and said, “Hey, man, you throw a drink on me?” After Jeff told him they did not want any trouble and that he did not throw a drink on him, Phanivong said, “Let’s fight” and took a swing. Adams testified that Phanivong was angry — “real hot” — and “jumping around.” Adams was walking away with the twins when Phanivong hit Jeff in the back of the head, and Jeff fell down. When Jeff stood up, Phanivong was still “coming at him,” so Adams stepped between the two men to break up the scuffle.
According to Adams, he told Phanivong, “We don’t want no problems, man. Hey, it’s Christmas time.... I’m ready to go home. . . . We don’t have to have no problems, man, let’s just go home.” Phanivong said something like, “What’s up?” And then Phanivong punched Adams in the temple.
Adams testified that at that point he looked over and saw the other man, Inhnarath, pull out a knife with a 5- or 6-inch blade. Adams said he pulled out his gun because he felt threatened and thought the gun would diffuse the situation.
Adams said he did not point the gun at anybody at first — he just pulled it out of his pocket, told the men to “back up,” and pointed the gun at the ground “to make the gun visible.” Adams started backing away and said something like, “We don’t have to do this. You sure you want to do this?” Instead of retreating, Phanivong started for Adams’ gun, and Inhnarath came at Adams with the knife. As Phanivong dove for the gun, he pushed Adams’ arm. Then Adams lifted up the gun and fired a shot, aiming for Phanivong’s shoulder. Adams testified: “It wasn’t my intent to toll him. The whole . . . thing was ... it was foolish, it was senseless, it was silly. But if somebody was gonna die over something foolish and silly, I didn’t want it to be me.” Adams shot Phanivong a second time because “he kept coming.” After the second shot, Phanivong fell down.
Adams saw Inhnarath digging in Phanivong’s pocket and feared that Inhnarath was trying to find a gun. Adams froze, and one of the twins grabbed his jacket and said, “Come on, let’s go, let’s go, let’s go.” The three friends then ran to the parking garage. They climbed into the car but did not leave because the car was surrounded by men who Adams thought were police officers. He opened the car door and threw down the gun because he “didn’t want to get shot” by the police.
The bouncers and others came to the assistance of Phanivong. Kansas City, Kansas, police officers arrived on the scene shortly thereafter and took the occupants of the car into custody. None of the bouncers or police officers testified to finding a knife. Indeed, no other witnesses mentioned a knife, and Inhnarath denied having a weapon that night.
Adams was charged with the premeditated killing of Phanivong, in violation of K.S.A. 21-3401, and the criminal use of a weapon, in violation of K.S.A. 21-4201. He was convicted as charged. Adams now makes a timely appeal over which this court has jurisdiction under K.S.A. 22-3601(b)(l) (conviction of an off-grid crime).
Prosecutorial Misconduct
Adams first contends that the prosecutor committed misconduct during closing argument by making misstatements of law and attempting to inflame the jury, which denied Adams a fair trial. This contention lacks merit.
Adams complains about three specific statements made by the prosecutor. Defense counsel only objected to one of the prosecutor’s statements (the third one), which was made during the rebuttal portion of the State’s closing argument. Regardless, this court has recently reiterated that a contemporaneous objection to prosecutorial misconduct during closing argument is not required in order to preserve the issue for appeal. State v. Stone, 291 Kan. 13, 17, 237 P.3d 1229 (2010); State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009); State v. McReynolds, 288 Kan. 318, 322-23, 202 P.3d 658 (2009).
Standard of Review
In reviewing claims of prosecutorial misconduct, this court utilizes a familiar two-step analysis:
“In general, appellate review of an allegation of prosecutorial misconduct involving improper comments to the jury follows a two-step analysis. First, the appellate court decides whether the comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. Second, the appellate court decides whether those comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Albright, 283 Kan. [418, 428, 153 P.3d 497 (2007)].
“In the second step of the two-step analysis, the appellate court considers three factors: ‘(1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor’s part; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. None of these three factors is individually controlling. Moreover, the third factor may not override the first two factors unless the harmless error tests of both K.S.A. [2010 Supp.] 60-261 [refusal to grant new trial is not erroneous if party’s substantial rights were not affected] and Chapman v. California, 386 U.S. 18, [22,] 17 L. Ed. 2d 705, 87 S. Ct. 824 [reh. denied 386 U.S. 987] (1967) [conclusion beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial], have been met. [Citations omitted.]’ State v. Albright, 283 Kan. at 428.” State v. McReynolds, 288 Kan. 318, 323, 202 P.3d 658 (2009).
See State v. Tosh, 278 Kan. 83, 93, 91 P.3d 1204 (2004) (second step essentially directed to whether misconduct was so prejudicial that it denied defendant a fair trial).
First Statement
The first claim of misconduct alleged by Adams is the prosecutor’s statement during rebuttal that “[tjhis case doesn’t just mean something to the defendant. It means something to Ratsamy Phanivong. This is the only chance he will ever have to have someone held accountable for taking his life. So this day is as much about him if not more than anyone else.” Adams argues that this statement was improper for two reasons: (1) It was an improper appeal to base the jury’s deliberations on sympathy for the victim, and (2) it was a misstatement of the law.
With regard to Adams’ argument that the statement was an improper appeal for sympathy, a prosecutor crosses the line of appropriate argument when that argument is intended to inflame the juiy’s passions or prejudices or when the argument diverts the juiy’s attention from its duty to decide the case on the evidence and controlling law. Tosh, 278 Kan. at 90. Arguing the prosecutor crossed this line, Adams suggests that the comments in this case are similar to those in State v. Henry, 273 Kan. 608, 621, 44 P.3d 466 (2002). In Henry, the prosecutor urged the jury to think about Mother’s Day and how the victim’s mother felt. This court reversed and remanded for a new trial, in part, because the prosecutor’s comment inflamed the passions of the juiy and caused prejudice. In contrast, the statements in this case are not as inflammatory. Even so, the comments focus on sympathy for the victim.
Plus, this court has held that a prosecutor’s argument regarding the impact of a crime on a victim or a victim’s family may constitute reversible error because it diverts attention from the evidence and law. See Tosh, 278 Kan. at 92 (finding that tire prosecutor’s statements that the jury should convict the defendant in order to protect his daughter was one of the bases for reversible prosecutorial misconduct); State v. Donesay, 265 Kan. 60, 85-88, 959 P.2d 862 (1998) (murder victim’s widow testified in detail regarding her relationship with her husband and her husband’s friendly disposition; the admission of this testimony was irrelevant as to the crime charged and constituted reversible error).
The statement in this case more subtly focused on sympathy for the victim than did the statements at issue in Henry, Tosh, or Done-say. Nevertheless, in light of those cases, we conclude that the prosecutor’s statement about the victim is improper. As in the prior cases, the prosecutor’s argument diverts attention from the jury’s function of determining guilt based on the instructions rather than because of sympathy.
Adams argues the error is compounded because the prosecutor’s comments also misstate the law. Specifically, he argues the trial was not Phanivong’s “only chance” to hold someone accountable for his death and, even if that was true, it is the prosecutor’s responsibility, not the juror’s, to bring criminal charges against an accused person. Adams asserts that “the juiy could have been misled to believe that the only options were for it to convict [Adams] or allow the killing to go completely unpunished.” The State responds that these were the only two options available to tire jury because it is undisputed that Adams shot the gun, and, therefore, the only question is whether the shooting was in self-defense.
The State’s position ignores several points which we consider valid and which lead us to the conclusion that the comments misstate the law. First, the comments ignore the possibility that tire jury would not be able to unanimously agree on a verdict. Second, the comments ignore the availability of civil redress. Finally, the comments suggest that the case was brought on behalf of the victim rather than the people of Kansas.
Because the comments are both an improper appeal for sympathy for the victim and a misstatement of the law, we conclude the comments are improper. Consequently, we must consider whether the comments constitute plain error. The first factor in this determination is whether the conduct was gross and flagrant. In this regard, as we have noted, the call for sympathy in this case is much more subtle that in Henry, Tosh, and Donesay. Additionally, the prosecutor only made a passing reference to die victim and did not dwell on or repeat the point. Hence we conclude the comments are not gross or flagrant.
The second factor to be considered in determining whether there is plain error is whether the comment showed ill will. Regarding tins factor, Adams suggests that Henry, Tosh, and Donesay are not of recent origin and stand for well-established principles. On the other hand, in suggesting there was no ill will, the State points to the fact that the statements were made in the rebuttal portion of the prosecutor’s argument, were responding to arguments made by defense counsel regarding the importance of the case to Adams, and were immediately preceded by the prosecutor urging die jury to “follow the law and decide this case based upon the evidence and the law as you’re instructed. That was your oath. That’s the right thing to do.” As the State argues, we have repeatedly considered similar factors when assessing whether the prosecutor demonstrated ill will. See, e.g., State v. Martinez, 290 Kan. 992, 1016, 236 P.3d 481 (2010); State v. Murray, 285 Kan. 503, 517, 174 P.3d 407 (2008). However, these cases should not be read to suggest that a prosecutor is given carte blanche authority to misstate the law as long as the misstatements are isolated to the rebuttal, are in response to defense arguments, or are accompanied by an admonition to follow the law and base the verdict on the evidence. We are especially reluctant to give these circumstances very much weight when the prosecutor’s comments cross a well-established line that separates appropriate argument regarding the facts from an inappropriate invocation of sympathy.
The final factor in determining if a prosecutor’s misconduct was plain error is whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of the jurors. In this regard, we must consider that a misstatement of the law, whether by the prosecutor or by the court, denies the defendant a fair trial where the facts are such that the jury could have been confused or misled by the misstatement. State v. Magallanez, 290 Kan. 906, 915, 235 P.3d 460 (2010); Henry, 273 Kan. at 619.
We conclude the statements in this case do not rise to the level of depriving Adams of a fair trial. We are persuaded to this view point for several reasons. First, the reference to the victim was made in passing and was not repeated or emphasized. Second, the statement was not as egregious as those made in Henry, Tosh, or Donesay. Third, the misleading statement that the trial was the only chance the victim had of holding someone accountable is analogous to a line of cases where we concluded plain error had not occurred even though the court erroneously instructed the jury that “another trial would be a burden on both sides.” PIK Crim. 3d 68.12 (2005 Supp.). (The current version of this pattern instruction removes the inappropriate language. See PIK Crim. 3d 68.12 [2009 Supp.]). Although the statement in the instruction differs from the prosecutor s argument, the implication is similar because both are misstatements that pressure the jury to reach a verdict. Yet, we held in State v. Salts, 288 Kan. 263, 266, 200 P.3d 464 (2009), that the misstatement in PIK Crim. 3d 68.12 (2005 Supp.), which came from the judge in the juiy instructions and therefore presumably had more gravitas than an argument by counsel, did not require reversal. This court reasoned that the jury had been instructed on the matters that they were to consider and the elements that the State would have to prove beyond a reasonable doubt. Given that, the statements, while inappropriate, would not mislead the jury into ignoring their charge. Similarly, we do not see the prosecutor’s misstatement as misleading the jury in light of the instructions, especially when the comment was made in the context of the prosecutor urging the juiy to follow the instructions.
Finally, there was strong evidence before the jury to support the defendant’s convictions. Although eyewitness accounts of the incident contained variations regarding punches thrown and the ethnicity of the persons arguing, there was no question that Adams killed Phanivong. The primary issues of fact argued to the jury were intent and self-defense. Regarding self-defense, although Adams testified a knife had been pulled and that led to his belief that he needed to respond with a deadly weapon, there was no corroborating eyewitness account or physical evidence to support this testimony, even though the circumstances were such that a jury could likely conclude that someone, especially Adams’ friends, would have supported his testimony if it was true. Given that, there was strong support for the State’s theory that, even if Adams subjectively believed he needed to defend himself, this belief was objectively unreasonable, and hence Adams acted with excessive force.
On appeal, Adams’ counsel focuses on the element of premeditation, arguing that the evidence of this element was weak. This argument ignores Adams’ damning testimony where he described his actions, admitted to making the decision to shoot the gun, and explained that “if somebody was gonna die over something foolish and silly, I didn’t want it to be me.” This testimony presents evidence that Adams thought about and intended to kill before he fired the fatal shots, albeit as a result of what the jury concluded was an objectively unreasonable belief in the need for self-defense. In light of this strong evidence supporting the State’s theory, we conclude the misconduct would likely have had little weight in the minds of the jurors when considering the issues of intent, premeditation, and self-defense.
Second Statement
The second claim of misconduct alleged by Adams is the following statement made by the prosecutor during the main portion of the State’s closing argument: “Do not, I implore you, sanction this behavior. You agree to the defendant’s theory that this was self defense you are sanctioning his behavior.” Adams argues that in making this statement, the prosecutor asked the juiy to consider issues irrelevant to Adams’ guilt or innocence. Instead, in an attempt to appeal to the juror’s sense of community, the jury was asked to consider whether to generally condone this type of behavior.
Adams contends that this case is similar to State v. Finley, 268 Kan. 557, 998 P.3d 95 (2000) (Finley I), where the prosecutor stated the following during closing argument:
“ ‘You know, they say all the time that our police department enforces our laws in this country, that’s not true. It’s you guys. We have people in Topeka that make our laws, we have people in my office that prosecute them, but you all have the job of enforcing them. You all can find that he committed these crimes and hold him responsible for them. We cannot tolerate this land of drug use in our community, especially when a person dies. You have to find him guilty. Thank you.’ ” Finley I, 268 Kan. at 571.
The Finley I court found the statement was reversible misconduct because the last remarks addressed to the jury — “ ‘We cannot tolerate this kind of drug use in our community, especially when a person dies. You have to find him guilty.’ ” — were grounds completely unrelated to the question the jury should have considered. Further, it was not clear whether the error had little, if any, likelihood of changing the result of the trial. Finley I, 268 Kan. at 572. The Finley I decision relied, in part, on State v. Ruff, 252 Kan. 625, 847 P.2d 1258 (1993), where the prosecutor committed reversible misconduct by urging the jury, “ ‘[D]o not allow this conduct to be tolerated in our county.’ ” Ruff, 252 Kan. at 631. This court found the prosecutor’s implication problematic — that if the juiy found Ruff not guilty, her conduct would be tolerated.
In this case, however, in focusing on the statements imploring the jury not to sanction the behavior, Adams removes the passage from its context, and in context a different meaning is conveyed. The prosecutor stated:
“Do not, I implore you, sanction this behavior. You agree to the defendant’s theory that this was self defense, you are sanctioning his behavior and the evidence does not support it. He’s asking you to ignore people, ignore evidence, and most importantly, ignore the law because you do not bring a gun to a fist fight and you do not shoot someone who’s only attacking physically even if that’s true, and I’m not saying it is. There’s some real dispute there.” (Emphasis added.)
In context, the complained of statement is more akin to State v. Finley, 273 Kan. 237, 42 P.3d 723 (2002) (Finley IT), relating to the retrial after Finley’s first appeal resulted in a remand and new trial. In that second trial, the prosecutor asked the jury not to let the defendant “ ‘get away with’ ” his crime. This court found no misconduct stating:
“[T]he prosecutor’s comment in this case was not an appeal to community interests in tire sense that a not guilty verdict would have some sort of negative impact on the community. Rather, the prosecutor was arguing the defendant should not escape responsibility for this crime based on his highly implausible story Finley II, 273 Kan. at 245.
See State v. Cravatt, 267 Kan. 314, 332, 979 P.2d 679 (1999) (finding no prosecutorial misconduct for telling jury, “ ‘Don’t let a mur derer go free because of these half-baked theories the defense has presented to you.’ ”).
Like the situation in the Finley II case, the prosecutor in Adams’ case was not making some type of appeal to community interests; rather, the prosecutor was arguing that the evidence did not support Adams’ theory of self-defense. Adams’ claim of prosecutorial misconduct fails.
Third Statement
The third claim of misconduct alleged by Adams is the following italicized statement made by the prosecutor during the rebuttal portion of the State’s closing argument: “We agree on one thing. This sure as heck would have been a different situation if the defendant had just walked away. He could have gone to the bouncers, he could have run to the parking garage.” (Emphasis added.) Defense counsel objected to this statement and, out of the hearing of the jury, argued to the trial judge that the prosecutor misstated the law by implying that Adams had a duty to retreat. The prosecutor argued that she was merely responding to defense counsel’s statement to the jury that the situation could have been reversed — that Adams could have been killed and the State could have been prosecuting someone for Adams’ murder.
The judge allowed the prosecutor’s rebuttal statement and noted that “[t]he jury has been instructed, I presume they’re going to read the instructions that there is no duty to retreat.” Nevertheless, neither the judge nor counsel specifically reminded the jury of that instruction.
The prosecutor did somewhat clarify her point, however, when her rebuttal continued:
“The defendant had a number of options starting with not bringing a gun. That’s what led to [Phanivong’s] murder, nothing else. The defendant had options. . . . The bully in this case was the man who wanted to settle a fight not with words, not even with some shoving, but with a gun. There’s your bully.”
In context, the complained of statement was consistent with the State’s theory that Adams used excessive force rather than acted in justifiable self-defense. Additionally, it should be noted that the prosecutor never actually told the jury that Adams had a duty to retreat, and the comments were ambiguous with regard to the point in time at which the prosecutor suggested Adams should have walked away. In other words, she could merely have been saying that Adams had a choice to walk away when angry words were exchanged and before he felt a need to defend himself, i.e., before the point in time when the right to defend himself arose.
Nevertheless, although not clearly or strongly conveying the meaning Adams seeks to impute, arguably the prosecutor’s statement implied a duty to retreat, and such an implication was contrary to die judge’s instruction to the juiy. See K.S.A. 2010 Supp. 21-3218(a); PIK Crim. 3d 54.17 (use of force in defense of a person); PIK Crim. 3d 54.17-A (no duty to retreat). We think this implication is a reasonable one to draw because the district judge, during the bench conference, discussed the duty to retreat — apparendy because he felt the implication had been made. Hence, we conclude the comments that were made before the bench conference were improper.
We note that the weak implication left by the ambiguous comments could have been erased if the judge or prosecutor had reminded the jury of the instruction that explained there was no duty to retreat or if the judge had sustained the objection. Instead, an arguably weak suggestion was strengthened when the court overruled the objection.
That being said, as we consider the second prong of our analysis of whether those comments are plain error, we conclude the statement did not deny Adams a fair trial. As indicated, the statements were ambiguous and not of a gross or flagrant nature. In addition, the statement was minimized by the prosecutor’s follow-up comment explaining the State’s theory that excessive force was used by Adams. These comments suggest to us that the earlier statements were not motivated by ill will. Moreover, as discussed above, the trial court properly gave the self-defense jury instruction which clearly stated there was no requirement to retreat. See State v. Bunyard, 281 Kan. 392, 406, 133 P.3d 14 (2006) (“[A] prosecutor’s misstatement of the law must be considered in the context of the jury instructions given by the court.”). Further, although Adams’ testimony contained some support for his theory of self-defense, there was strong evidence supporting a criminal conviction. As a result, we conclude that the comments likely had little weight in the minds of the jurors, and we find the error was harmless.
Additionally, we do not find plain error when we consider the cumulative effect of the two comments that we have found to be improper. As we have noted, neither point was dwelled on nor was one misstatement associated with the other. The statements do not become more egregious when considered together. Finally, the comments, even when considered together, would have little weight in the minds of the jurors. The cumulative impact of the two statements was harmless under either K.S.A. 2010 Supp. 60-261 or Chapman v. California, 386 U.S. 18, 22, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 (1967).
Order of Homicide Jury Instructions
Next, Adams complains for the first time on appeal about the order in which certain jury instructions were given. Specifically, he argues that the trial court erred by instructing the juiy on premeditated first-degree murder and its lesser included offenses in descending order of severity. Adams contends that instructing the juiy in this manner infringed on his constitutional right to the presumption of innocence. This contention lacks merit.
Standard of Review
Because Adams did not raise this objection to the jury instructions at trial, this court reviews this issue under the clearly erroneous standard. See K.S.A. 22-3414(3); Magallanez, 290 Kan. at 918; State v. Vasquez, 287 Kan. 40, Syl. ¶ 6, 194 P.3d 563 (2008). “Instructions are clearly erroneous only if the reviewing court is firmly convinced there is a real possibility that the juiy would have rendered a different verdict if the error had not occurred.” Vasquez, 287 Kan. 40, Syl. ¶ 6; see State v. Ellmaker, 289 Kan. 1132, 1139-40, 221 P.3d 1105 (2009); Salts, 288 Kan. at 265-66.
The jury was instructed on the elements of premeditated first-degree murder, then intentional second-degree murder, then voluntaiy manslaughter, and then involuntary manslaughter. After the premeditated first-degree murder instruction was given, and be fore the lesser offense elements instructions were given, the trial court gave the following jury instruction, Instruction 7, consistent with PIK Crim. 3d 68.09:
“The offense of murder in the first degree with which the defendant is charged includes the lesser offenses of murder in the second degree, voluntary manslaughter, and involuntary manslaughter.
“You may find the defendant guilty of murder in the first degree, or murder in the second degree or voluntaiy manslaughter or involuntary manslaughter or not • guilty.
“When there is a reasonable doubt as to which of one or more offense the defendant is guilty, he may be convicted of the lesser offense only.
. “Your Presiding Juror should sign the appropriate verdict form. The other verdict forms are to be left unsigned.”
The trial court also used a transitional statement between the charged offense and the next less serious of the lesser offenses. For example, the juxy was instructed that “[i]f you do not agree that the defendant is guilty of Murder in the First Degree as charged in Count I, you should then consider the lesser included offense of Murder in the Second Degree.” Then the trial court instructed on the elements of the lesser offense of intentional second-degree murder. Similar transitional language was used to instruct the jury that if it did not agree that Adams was guilty of second-degree murder, it should consider, voluntary manslaughter. If it did not agree that he was guilty of voluntary manslaughter, it should consider involuntary manslaughter.
According to Adams, these instructions told the jury to convict him of premeditated first-degree murder without considering the lesser included offenses or that the jurors should only consider the lesser offenses if they acquitted him of premeditated first-degree murder. Adams argues that this is contrary to K.S.A. 21-3109, which states that a defendant is innocent until proven guilty, and that “[w]hen there is a reasonable doubt as to which of two or more degrees of an offense he is guilty, he may be convicted of the lowest degree only.” In Adams’ view, this statute requires juries to consider the charged crime and the lesser included offenses together or in ascending order of severity.
It is important to note, however, that instruction No. 7, quoted above, is nearly identical to K.S.A. 21-3109. Further, Adams’ argument is inconsistent with our decisions in State v. Lawrence, 281 Kan. 1081, 1091, 135 P.3d 1211 (2006); State v. Roberson, 272 Kan. 1143, 1153-55, 38 P.3d 715 (2002), disapproved on other grounds State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006); and State v. Trujillo, 225 Kan. 320, 590 P.2d 1027 (1979).
In Trujillo, the earliest of these decisions, the reverse of Adams’ argument was made. In other words, Trujillo argued that the jury need to be instructed regarding “which lesser offense was the more serious.” Trujillo, 225 Kan. at 324. This court stated that in the interests of promoting an orderly method of considering the possible verdicts, “a trial court should instruct on lesser included offenses in the order of severity beginning with the offense with the most severe penalty.” Trujillo, 225 Kan. at 324. Nevertheless, this court concluded that there could have been no prejudice from the free-form instructions because Trujillo was found guilty of the crime charged. Trujillo, 225 Kan. at 324.
Likewise, in Lawrence, 281 Kan. 1081, this court restated our approval of the PIK method of ordering the jury’s deliberation on lesser included offenses, stating: “ The pattern instructions offer an orderly method of considering possible verdicts. The pattern instructions offer a transitional statement that can be inserted at the beginning of the elements instructions of lesser offenses.’ [Citation omitted.]” Lawrence, 281 Kan. at 1091.
In Roberson, 272 Kan. 1143, the defendant raised a similar argument to the one raised in the present case. The defendant argued that an instruction stating “ ‘[i]f you do not agree that the defendant is guilty’ ” was erroneous because it required the jury to reject a conviction on the greater charge before considering lesser included offenses. Roberson, 212 Kan. at 1154. This court rejected that claim because there was nothing in the instruction requiring a unanimous decision on the greater charge before considering the lesser charges. We also read all the instructions together, which indicated that the “jury was fully and accurately informed that it could consider the lesser offenses.” Roberson, 272 Kan. at 1155; see State v. Carter, 284 Kan. 312, Syl. ¶ 14, 160 P.3d 457 (2007) (“Instructions that direct jurors to move on to consideration of lesser included offenses only if they do not agree or if they do not find defendant guilty are not coercive and correctly state the law.”); State v. Korbel, 231 Kan. 657, 661, 647 P.2d 1301 (1982) (rejecting defendant’s argument that the words “ "if you cannot agree’ ” in jury instruction coerced the jury into returning a verdict of guilty on the more severe charge).
Here, the juiy was instructed, in accordance with PIK Crim. 3d 68.09, that the charged offense included lesser offenses and that Adams .could be found guilty of the charged offense, a lesser offense, or could be found not guilty. Taking these instructions together with the elements instructions, the jury was fully and accurately informed that it could consider the lesser offenses, and the jury had an orderly method for doing so. Neither the juiy instructions nor their order of presentation are clearly erroneous.
Defining Criminal Intent and Premeditation
For Adams’ final argument, he contends that three jury instructions on criminal intent and premeditation impermissibly lessened the State’s burden to prove premeditated first-degree murder. This contention also lacks merit.
Standard of Review
As in the previous issue, Adams did not object to these jury instructions at trial. Therefore, this court reviews this issue under the clearly erroneous standard as well. See K.S.A. 22-3414(3); State v. Magallanez, 290 Kan. 906, 918, 235 P.3d 460 (2010); Ellmaker, 289 Kan. at 1139-40.
Adams complains about instruction Nos. 6, 11, and 17, which provided the following guidance to jurors:
“Instruction No. 6
“The defendant is charged in Count I with the crime of Murder in the First Degree. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
1. That the defendant lolled Ratsamy Phanivong;
2. That such killing was done with premeditation; and
3. That this act occurred on or about the 23rd day of December, 2007, in Wyandotte County, Kansas.
“Premeditation means to have thought over the matter beforehand, in order to. have formed the design or intent to kill before the act. Although there is no specific time period required for premeditation, the concept of premeditation requires more than the instantaneous, intentional act of taking another’s fife.”
“Instruction No. 11
“As used in these instructions the word ‘intentionally’ means conduct that is purposeful and willful and not accidental. Intentional includes the terms ‘knowing,’ ‘willful,’ ‘purposeful’ and ‘on purpose.’
“As used in these instructions the word ‘willfully means conduct that is purposeful and intentional and not accidental.
“As used in these instructions the words ‘heat of passion’ means any intense or vehement emotional excitement which was spontaneously provoked from circumstances. Such emotional state of mind must be of such degree as would cause an ordinary person to act on impulse without reflection.”
“Instruction No. 17
“Ordinarily a person intends all of the usual consequences of his voluntary acts. This inference may be considered by you along with all the other evidence in the case. You may accept or reject it in determining whether the State has met its burden to prove the required criminal intent of the defendant. This burden never shifts to the defendant.”
Adams argues that instruction Nos. 6 and 11, viewed together, correctly required the jury to find that he intended to kill Phanivong willfully, purposefully, and not accidentally, but instruction No. 17 “[told] die jury to infer that Mr. Adams intended to kill Mr. Phanivong simply because he committed an act that led to his death.” In other words, the jury could have been led to believe that only the voluntary act of shooting had to be thought over beforehand, not the killing. Therefore, Adams concludes that instruction No. 17 created an inference that “destroyed” the State’s burden to prove beyond a reasonable doubt that Adams intended to kill Phanivong.
We disagree because the instructions clearly advised that the intent to kill and premeditation were separate elements and that the State was required to prove both. Moreover, Adams’ arguments have been consistently rejected by this court. See, e.g., Ellmaker, 289 Kan. 1132, Syl. ¶ 4 (“An instruction containing a permissive inference does not relieve the State of its burden because the State is still required to convince the jury that an element, such as intent, should be inferred based on the proven facts.”); State v. Stone, 253 Kan. 105, 107, 853 P.2d 662 (1993) (instruction creates permissible inference rather than improper rebuttable presumption; therefore does not violate due process rights); State v. Harkness, 252 Kan. 510, 525-27, 847 P.2d 1191(1993) (instruction allowing jury to draw inference that defendant intended all consequences of his voluntary acts and that any such inference was required to be considered along with other evidence did not unconstitutionally shift burden of proof on intent to defendant); see also State v. Hernandez, 44 Kan. App. 2d 524, Syl. ¶ 4, 239 P.3d 103 (2010) (“Under the facts of this case, the instructions of intent and premeditation as a whole did not impermissibly lessen the State’s burden to prove attempted first-degree murder.”).
To prove- first-degree murder, the State must prove that the defendant killed the victim intentionally and with premeditation. K.S.A. 21-3401(a); see State v. Trussell, 289 Kan. 499, 503, 213 P.3d 1052 (2009) (State required to prove specific intent to kill and premeditation to convict of first-degree murder). The legislature has defined “intentional” as “purposeful and willful and not accidental.” K.S.A. 21-3201(b). Under element 1 of instruction No. 6, the jury was required to find that Adams intentionally killed Phanivong. Element 2 stated the premeditation requirement and clearly required that the hiding be premeditated. Thus, contrary to Adams’ argument, the instruction left no room for the jury to conclude that only the act of shooting had to be premeditated.
Further, the definition of premeditation in instruction No. 6, which is identical to the definition in PIK Crim. 3d 56.04(b), reiterated that the hiding had to be premeditated and that “the concept of premeditation requires more than the instantaneous, intentional act of taking another’s life.” (Emphasis added.)
In addition, instruction No. 5, which Adams does not discuss and which corresponds to PIK Crim. 3d 52.02, clearly informed the jury of the State’s burden to prove every element. Instruction No. 17 did not alter the other instructions’ guidance on the State’s burden of proof. As explained in the PIK Committee’s Notes on Use for PIK Crim. 3d 54.01 (on which instruction No. 17 is based), the inference of intent instruction “is a rale of evidence and does not deal with the required element of criminal intent necessary for conviction in those cases where criminal intent is a necessary element of the offense”; see also PIK Crim. 3d 54.01-A, Notes on Use (“This instruction must not be confused with PIK Crim. 3d 54.01... which is a rule of evidence and does not purport to charge the jury to find criminal intent necessary for conviction.”); State v. Lassley, 218 Kan. 752, 756, 545 P.2d 379 (1976) (stating that the inference of intent instruction pertains to the presumption of intent which is merely a rule of evidence). Moreover, the “instruction is designed to make it crystal clear that the presumption is only a permissive inference, leaving the trier of fact free to consider or reject it.” PIK Crim. 3d 54.01, Comment. In fact, instruction No. 17 emphasized: “You may accept or reject [the inference] in determining whether the State has met its burden to prove the required criminal intent of the defendant.”
In concert with the other instructions given regarding the State’s burden, there can be no real danger that a juiy would be misled as to what the State was required to prove. As given, the instructions referenced above properly and fairly stated the law. The criminal intent and premeditation juiy instructions were not clearly erroneous, and PIK Crim. 3d 54.01, which states that ordinarily a person intends all of the usual consequences of his voluntary acts, did not mislead the juiy into believing that the State did not have to prove the defendant premeditated the killing. PIK Crim. 3d 54.01 contains a permissive inference that may be considered by jurors along with all the other evidence in the case and does not replace the required element of criminal intent necessary for conviction in those cases where criminal intent is a necessary element of the offense. Other instructions clearly informed the jury of the State’s burden to prove every element, including proving premeditation and an intent to kill.
Affirmed.
Richard M. Smith, District Judge, assigned.
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Tbe opinion of tbe court was delivered by
Kingman, O. J.:
There is only one error assigned or complained of in tbe petition in error, and that is tbe overruling of tbe demurrer of plaintiffs to tbe four defenses setting up tbe several statutes of limitation; hence tbe only question for us to decide is, whether any of these several pleas was a good defense to tbe action. If either was a good defense, then tbe demurrer, being to all jointly, was properly overruled.
Tbe question is, whether either of tbe limitations set up constitutes a defense, by itself, to tbe facts set up in tbe petition. It is conceded that tbe statute of limitations might be so connected with other grounds of defense, that, taken with those grounds, it would constitute a perfect bar to tbe petition. For instance, if tbe answer to such a petition as tbe one in this case, set up.a bolding under a valid tax title, and claimed that such a bolding bad continued, after tbe recording of tbe deed more than two years before tbe commencement of the action, this would constitute a good defense; for, if true, it might be a complete bar to a recovery. Put in this case, each ground of defense setting up hmitation is independent of other grounds of defense, and is connected with them merely by reciting that plaintiff’s cause of action set forth in tbe petition did not ac- ' crue, etc. It is a rule of pleading that each defense is to be regarded as if it stood alone, and as if it were tbe sole defense, and should be complete in itself, unless by distinct and intelligible reference it be connected with facts stated elsewhere in the answer. (Swan’s PL, 266.) Tbe question then recurs, whether either of tbe limitations set up in tbe answer, would, if true, be of itself a bar to tbe plaintiffs’ recovery, on tbe facts set up in their petition; and we think it would not, for reasons that will be presently given.
Of the four several defenses setting up the different limita tions, it may be observed that the one setting up the two years is so defectively stated that it must be entirely disregarded; but the three years limitation was well enough stated to be comprehended, and as it is for a longer period than two years, would, if true for three years, be good for the lesser time. Five years is set up in one count, and ten years in another. This last is a limit not now on our statute book, and is not so pleaded as to make it apply to the late statute.
The argument has been wholly on the two-years limitation, and to that we shall give our chief attention, merely remarking that what may be said on that will apply equally well to the others. Our statute has provided that an action for the recovery of real property sold for taxes must be brought within two years after the date of the recording of the tax deed. This provision is substantially repeated in section 116 of chap. 107 of the general statutes, and we have no disposition to refine away this portion of the law. The action in this case is not to recover land sold for taxes, or to resist the sale, or to set it aside, or defeat, or avoid it. The plaintiffs, by their petition, concede the validity of all the proceedings, and only seek to have their rights under the tax sale adjusted. So far from contesting the sale for taxes, they claim whatever rights they seek in their petition under the tax sale. They claim that the purchaser from the county acted as the agent of their grantor, and whatever right he obtained was for the interest of his principal, and that the agent cannot hold adversely to his principal, and that his heirs are in no better situation. To this state of facts the two-years limitation is no answer. It is not our purpose to decide on what may be the merits of this case, only that the limitation of two years, as it was pleaded, was no answer to the facts as stated in the petition; and therefore the court erred in not sustaining the demurrer.
The facts stated in the petition made a good cause of action, and entitled the plaintiffs to the relief prayed for. The principle is old and well established that an agent undertaking any business for another is disabled in equity from dealing in the matter of the agency upon his own account, or for his own benefit; and if he do so in his own name he will be considered as holding in trust for his principal. Eor the application of this principle to the case before us see the case of Baker v. Whiting, 3 Sumner, 475, where Mr. Justice Story says: “ The whole question in the present case turns upon this: whether the defendant Whiting, at the time of his purchase of the premises at the sale for taxes in August, 1821, was the agent of the heir of Jacob Tidd, of Simpson, and of other proprietors, of their undivided shares in the premises. If he was, then, upon the acknowledged principles of courts of equity, he, as an agent, could not become a purchaser at the sale for himself, but his purchase must be deemed a purchase for his principals. It matters not whether, in such a case, the defendant intended to pinchase for himself, and on his own account, or not,” In Bartholomew v. Leech, 7 Watts, 172, it was held that an agent having charge of wild lands cannot become a purchaser thereof at a sale for taxes, without a previous and explicit renunciation of the agency. In this case, Gibson, O. J., in delivering the opinion of the court, observes: “The most open, ingenuous, and disinterested dealing is required of a confidential agent while he consents to act as such; and there must be an unambiguous relinquishment of his agency before he can acquire an interest in the subject of it. To leave a doubt of his position in this respect is to turn himself into a trustee. It is unnecessary to recur to authority for a principle so familiar, and so accordant with common honesty.” The same question is decided in Oldham v. Jones, 5 B. Monroe, 467, and in Schedda v. Sawyer, 4 McLean, 181. The cases cited apply the principle to the exact state of facts set up in the petition. The general principle is stated in a multitude of cases, many of which are referred to in Hare & Wallace’s notes to Keech v. Sanford, 1 Lead. Cas. in Eq., 91, and to Fox v. Mackrett, and Pitt v. Mackrett, id. 208. The petition, then, setting up a state of facts that if proved entitled the plaintiffs to the relief sought, and the clauses of the answer setting up the limitations not being a bar to the action, the demurrer should have been sustained; and for error in refusing to sustain it, the judgment must be reversed, and the cause sent bach for further proceedings in accordance with this opinion. As we do not know what the facts really were on the trial, nor what they may be on another trial, we do not decide anything more than that as pleaded, no one of the four clauses of the answer setting up.a limitation was a good defense to the facts set up in the plaintiffs5 petition. Judgment reversed, and a new trial awarded.
Ail the Justices concurring.
TnE record in this case shows that plaintiffs in error “ excepted,"firsts to the overruling of their demurrer to the several pleas of the statutes of limitation; second, to the finding of the court that Fisher was the agent of Statham at the date of his purchase of the tax certificate; third, to the finding of the court, as conclusion of law, that the plaintiff’s action was barred; fourth, to the giving of judgment for the defendants. It would seem therefore, (from the language of the Chief Justice,) as matter of practice^ that the supreme court will assume that the plaintiff in error waives every exception or error appearing in the record, unless brought to the notice of the court by proper assignment in the petition in error. — Kbpobtbr.] | [
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The opinion of the court was delivered by
Brewer, J.:
Annie P. Wallace sued John Arthur in the district court in an action of replevin to recover the possession of a piano, and damages for its detention. The verdict was for the plaintiff for the possession of the piano and $300 damages. Plaintiff remitted $240 of the damages, and judgment was entered for the balance and for the possession of the property. The defendant now seeks a reversal of that judgment.
Several points have been presented by the counsel for plaintiff in error, and argued with ingenuity and ability. The first is this: Before the trial he moved the district court to set aside tbe order of delivery for want of a sufficient undertaking. The court held the undertaking to be insufficient, but overruled his motion, and gave leave to plaintiff to file a sufficient undertaking within ten days, which was done. The alleged defect was this: The statute (§ 178 of the code,) requires that the plaintiff give an undertaking “ to the effect that the plaintiff shall duly prosecute the action, and pay all costs and damages which may be awarded against him, and if the property be delivered to him, that he will return the same to the defendant if a return thereof be adjudged.” The clause, “ if the property be delivered to him,” was omitted from the undertaking as given. This omission, it is claimed, vitiated the undertaking. We do not think so. While we find no fault with the ruling of the court allowing the filing of an undertaking with that clause inserted, we think such permission unnecessary. An undertaking that “ he will return the property to the defendant if a return thereof be adjudged,” imposes the same obligations that it would with the addition of the clause, “if the property be delivered to him,” for a return will not be adjudged unless the property has been delivered. If the property remains in the possession of defendant the verdict and judgment, if in his favor, will simply secure to him that possession, and will not attempt to restore to him that of which he has never been deprived. Hence we see no error in this ruling by which the substantial rights of the plaintiff in error have been prejudiced.
Objection is also made to the instructions. The circumstances of the case were these: A. B. Bartlett obtained judgment against Mrs. 0. G-. Wallace, the mother of defendant in error, and caused an execution issued thereon to be levied upon the piano in question as her property. Upon that execntion the piano was sold to plaintiff in error. The defendant in error claimed that the property was bers, and brought this suit. The property had been purchased some time prior to this transaction of a Mr. Sutton, of Kansas City. The negotiations for the purchase seem to have been carried on by Mrs. 0. Gr. Wallace, who tes tiffed that she bought it for her daughter. The means which were used to pay for the piano were furnished by Mrs. Wallace. It would seem probable from the testimony that Mrs. Wallace bought the piano and gave it to her daughter. Upon such testimony the court charged the jury as follows:
“ lst.-In order to make a voluntary conveyance fraudulent, and therefore void as to creditors, either existing or subsequent, it is indispensable that the said voluntary conveyance shall transfer property which would be liable to be taken in execution for the payment of debts.
“ 2d.-If there was a voluntary conveyance of the property made in good faith, not for the purpose of defrauding or defeating creditors, and in point of fact took no property subject to execution, then it makes no difference about the consideration, whether there was any or not, between the donor and donee.”
Without going into any speculative inquiry as to whether these instructions would be correct as applied to every case of a voluntary conveyance of exempt property, we think they are correct as applied to the present. It is difficult to see what application the second section of the Statute of Frauds and Perjuries can have. That provides that “every gift, grant, or conveyance made with intent to hinder, delay or defraud creditors of their just and lawful debts shall be void.” Now it is not disputed that the piano remaining the property of Mrs. O. G. Wallace would have been exempt from levy under Bartlett’s judgment. So long then as she held it, Bartlett could not take it. It was as free from his touch as though it were not. Nemaining in her hands, it gave him no security, added nothing to his ability to compel payment. How then can any disposition she might choose to make of it hinder, delay, or defraud him? He could get no hold upon it, while she kept it. How much did he lose, then, when she parted with it? And how could she be held to have made a gift with intent to hinder, delay, or defraud, when the gift neither had nor could possibly have any such effect? It is not merely the thought which passes in the mind,'but the thought coupled with the possibility of the act done accomplishing the evil intended, which renders the act void. •
It is also objected tliat tbe verdict is against the evidence, and indeed that there is a total failure of proof upon some material points. We have examined the record and think there is some testimony upon every essential question, and enough to prevent us from disturbing the verdict.
Again at the request of plaintiff in error the court instructed the jury if they returned a general verdict to find upon three questions of fact submitted to them. The jury returned a general verdict, and at least a partial answer to these questions. Without, as appears from the record, insisting upon a fuller answer at the time the verdict was ren-
dered, the verdict was received and the jury discharged. Then a motion for a new trial was filed alleging as one reason therefor “that the jury refused or neglected to find the special questions of fact as directed by the court.” We think this objection came too late. Whatever may be the rule where the jury wholly ignore the special questions submitted, we think that when they attempt an answer, and the only objection that can be made is that it is not sufficiently full, attention should be called to the deficiency when the verdict is returned and an opportunity given to make it more full and specific. By the general verdict they have passed upon all the issues between the parties; and it would be hard to disturb this general verdict because some answer to a specific question is not sufficiently full, when the defect could easily have been cured by calling attention to it at the time the verdict was rendered. (Hazard Powder Co. v. Viergutz, 6 Kas., 471.)
Again, it is objected that the judgment does not follow the verdict, that it orders more than the plaintiff was entitled to by the verdict. The verdict was a general one. “ We the jury find for the plaintiff, and assess her damages,” etc. The judgmentis that the plaintiff “have and recover of said defendant possession of the said goods and chattels in said petition mentioned, or the value thereof in case a delivery thereof cannot be had, and that a writ of restitution issue therefor.” Where the petition alleges ownership and right of possession in the plaintiff and wrongful detention by the defendant, a general verdict finds all these issues for the plaintiff, and is proper. Upon such a petition and verdict a judgment like the one in this case may properly be entered. At least we do not see how the defendant is prejudiced by it.
Thus far we have found nothing in the proceedings which seems to us to require any interference on our part. One point remains to be considered, and upon that we shall be compelled to modify, at least, the judgment. The verdict was for possession, and $300 damages. The district court required the plaintiff remit $240, which was done, and judgment entered for the balance, $60. We see no testimony which would warrant a judgment for even that amount. A detention of property purchased at a judicial sale is not wrongful even as against the true owner until a demand is made. The plaintiff in error held this piano by purchase at a constable’s sale. The plaintiff (defendant in error) testified that she made demand for it, but when, does not appear. It may have been the day before suit was brought. Damages can only be recovered for a wrongful detention. Hence damages can be recovered only for the detention during the time intervening between the demand and the bringing of , ® o o the suit. Juie extent of this time not being shown, only nominal damages could be awarded. This does not necessitate the granting of a new trial, for the damages may be remitted.
The case will therefore be remanded to the district court with instructions that if the defendant in error shall, within such reasonable 'time as the judge of that court may direct, remit all damages awarded, the judgment for possession shall stand; and that otherwise the judgment be reversed and anew trial awarded. Die costs in this court must be divided between the parties. Ordered accordingly.
All the Justices concurring. | [
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The opinion of the court was delivered by
Kingman, O. J.:
The defendants in error being the owners of several parcels of land in Davis county, presented a petition to the district court of that county for the appointment of commissioners to assess the damages sustained by them, because, as they alleged, of the injury done to their lands by the construction of the railway of plaintiffs in error over the same. The commissioners were appointed and made their report, assessing the damages at $800. Upon this report a judgment was rendered against the plaintiff in error for the amount thereof. No notice whatever was given the Eailway Company of this proceeding. It would be a novel judicial proceeding whereby a man could obtain a judgment against another without any notice to him, and a proceeding not authorized by law. Eor this reason the judgment must be reversed.
There is a more fatal objection. The proceedings seem to have been taken under the acts of Congress ; 12 Stat. at Large, 489; 13 id., 356. Ve do not think these acts authorize this Eailway Company to obtain the right of way though the lands of other persons. The proceedings to do so must be taken under our State laws, and they do not authorize the owner of the land to take any steps to have the land valued. Ills remedy is plain. He can proceed in ejectment, or trespass, or get damages for use and occupation; and if he proceeds in time, by injunction. The right of eminent domain, transferred by the State to a corporation for a public purpose, could hardly be used by the owner to sell his own lands at a valuation. He does not know how wide the public necessities may require the right of way through his laud; and he cannot sell them one hundred feet when the necessity may be only for twenty-five because through other land the road needs one hundred feet.
The judgment is reversed.
Valentine, J., concurring.
Brewer, J., not sitting. | [
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The opinion of the court was delivered by
Yalentine, J.:
This was an action to quiet title to real property under section 594 of the civil code. The only question raised in the case are questions concerning the validity of two certain tax titles. As both tax titles are precisely alike, except that they are for different pieces of land, we shall hereafter speak of them only as one. The tax deed shows upon its face as follows: The land was taxed for the year 1861 and sold for the taxes May 8th 1862 to the county of Brown. On the 1st of June 1866 the county of Brown assigned the tax-sale certificate to A. Webb & Oo.; and on the 14th of July 1866 the county clerk of Brown county executed the tax deed to said A. Webb & Oo. The deed was recorded July 17th 1866. Is such- a tax deed valid? The county clerk has no general authority to execute deeds for the county, or to transfer property of any kind from the county to individuals. Such general authority belongs only to the county commissioners. The clerk’s airthority is only special. His authority to «/ «/ j. «/ execute tax deeds is only an authority to execute tax deeds to the owner and holder of the tax-sale certificate. The first question then, admitting everything else to be valid, is, whether A. Webb & Co. were, at the time the tax deed was executed, the owners and holders of the tax-sale certificate. In other words, had said tax-sale certificate been legally assigned to them? The tax deed does not show how nor by whom it was assigned. It simply shows that the certificate had been assigned by Brown county. But could Brown county at that time assign such a certificate? It of course could do so only through some officer or agent. But could it do so in that manner? and if so, through whom? This assignment was made June 1st 1866. Now it will be admitted that at that time the county clerk could assign tax-sale certificates issued on tax sales made in 1864, 1865, and 1866. (Laws of 1864, p. 73, § 9; Laws of 1866, p. 290, § 113, and page 277, § 74.) But could lie assign tax-sale certificates issued on tax sales made prior to 1864? Section 113 of the tax law of 1866, which took effect March 20th 1866, did not confer authority ' ** upon the county clerk, or upon any other officer or agent, to make such assignment unless he had such authority prior to March 20th 1866. Said section acted only as a saving clause to save rights or powers which existed prior to its passage, and did not create rights or powers. Then had the county clerk, prior to March 20th 1866, authority to assign tax-sale certificates, issued on tax sales made prior to 1864? We think not. If he had any such authority it must be found in § 9 of the act of 1864 relating to county finances which reads as follows:
Sec. 9. When any land or town lots shall at any tax sale be bid off by the county treasurer, for the county, it shall be the duty of the county treasurer to enter the same on the book of tax sales, in the same manner as though such land or town lots were sold to other purchasers; and he shall number each tract of land or town lot consecutively, in like manner as though a certificate of sale had been made; but no certificate of ""sale shall be made, except as follows: Whenever any person shall pay into the county treasury a sum of money, or warrant of appropriate fund, or county orders, equal to the cost of redemption at that time, of any such tract of land or town lot, the county treasurer shall give such person a certificate, dated the day when it is issued, describing the land or town lot bid off for the county, the amount for which it was so bid off, the amount paid into the county treasury by such person for such tract of land or town lot, the time when the owner of such certificate will be entitled to a deed, and shall number said certificate to correspond with the number of the tract of land or town lot, as numbered in the book of tax sales; which certificate, before it shall be of any validity, shall be assigned to such person by the county clerk, who shall make an assignment on his duplicate book of tax sales; and such certificate, so assigned by the county clerk, shall vest all the interest of the county in or to such land or town lot, in such person; and such certificate shall be assignable to the same extent and in like manner as certificates given to purchasers at tax sales. (Laws of 1864, p. 73, § 9; Laws of 1866, p. 277, § 74; Cx-em Stat., p. 1048, § 91.) '
Now it seems to us that said § 9 of the act of 1864 is prospective only in its operation, and relates solely to tax sales made subsequently to its passage. That the first part of the section, to the word “whenever,” relates only to future sales we suppose is clear beyond all doubt; but whether the other part of the section relates only to future sales, is not so clear. The first part of the section we suppose is intended to be the broadest and most comprehensive, and to include within its scope all tax sales mentioned in the other part. The first part is intended to cover all tax sales made subsequently to its passage where the property is bid off for the county;' the other part is intended to cover only such of the tax sales mentioned in the first part as shall by assignment of the certificate inure to the benefit of third persons who purchase the certificates. The latter part of the section does not, we suppose, include or refer to any tax sales not included in the first part, and neither does it include sales where the lands sold are redeemed before any assignment of the certificate is made, or where the certificate is never assigned but remains in the hands of the county. Under this section tax-sale certificates could be issued only under certain conditions. Under the former laws tax-sale certificates were issued in all cases, and immediately after the sale of the property, (Comp. Laws, 867, §§ 43, 44.) Will it be claimed that a second certificate could be issued on sales made prior to 1864? If so, what is to be done with the first certificate issued? Nothing can be found in the statutes providing what shall be done with it. It could not be assigned under said section nine. The only provision in § 9 authorizing the assignment of certificates is as follows: “which certificate before it shall be of any validity shall be assigned to such person by the county clerk,” etc. Now this language clearly means that the certificate which it authorizes to be assigned shall be the certificate mentioned in § 9, and not some old certificate issued under some prior law. The words “which certificate” clearly mean the certificate before mentioned in that section; and the words “ such person ” clearly mean the person before mentioned therein. But what kind of a certificate is previously mentioned in Ike section? Certainly not a certificate that had been issued before the section was passed by the legislature; nor even a certificate issued subsequently on some tax sale that had been made prior thereto. But it is a certificate issued on a tax sale made under the section itself, or rather after its passage. It is a certificate issued by the treasurer when any person shall pay into the county treasury a sum “ equal to the cost of redemption at that time of amj such tract of lamd or town lot.” What land or town lot does this language mean? Such of course as had been before mentioned in the section. And the only land or town lots previously mentioned in the section were such as the legislature contemplated would be subsequently sold to the county for delinquent taxes. Not a word is said in the whole section of any land or town lot that had been sold prior to the passage of such section. The conclusion, then, seems to be irresistible that this section relates only to tax sales and tax-sale certificates and assignments thereof made subsequently to its passage.
Prior to March 5th, 1864, the county treasurer had the power to assign tax-sale certificates: Comp. Laws, 867, § 44. But on that day the law under which he got his authority was repealed absolutely, and without any saving clause: Laws of 1864, p. 73, § 12; and hence since that time he has had no such power: Shoat v. Walker, 6 Kas., 65, 72, 73.
We are referred to the tax law of 1866 as giving authority to counties, through the county treasurer, or through him and an(l the clerk, to assign tax-sale certificates on sales made prior to the passage of the said act of 1864. The provision referred to reads as follows:
“ Sec. 88. * * * Any person whose lands have, prior to the passage of this act, been sold for taxes to any county, and remain in the hands of said county, may, after the first day of June next, redeem the same by-paying the principal, costs of sale, and ten per cent, penalty, or the county treasurer may transfer, in the manner provided in this act, the certificate of sale of said lands to any one who will pay all back tax, cost of sale, and ten per cent, penalty.” (Laws of 1866, p. 282, § 88; Gen. Stat., 1054, § 111.)
This act took effect March 20th, 1866. We suppose that there can be no doubt that the words, “after the first day of June next,” apply as well to the assignment of the tax-sale certificate as to the redemption of the land from the taxes. Such is the natural import of the language used. But if not, then the certificate could be assigned as soon as the act took effect. This would give the speculator in the tax titles more than two months’ advantage over the owner of the land. The speculator would have more than two months in which he could have the certificate assigned to himself before the owner of the land could redeem his land under the act. Gan it be supposed that the legislature intended to give such a great advantage to the speculator over the owner of the land? We think not. And if not, then we suppose this act did not give power to any one to transfer or assign the tax-sale certificate on the first day of June, 1866. After the first day of June does not mean on the first day of June. When a thing is not authorized to be done until after a particular day it cannot be done until after the whole of that day has elapsed: (Judd v. Tarleton, 10 Barb., 117.) This we suppose is self-evident.
We are also referred to sections 43 of the tax-law of 1860, (Comp. Laws, 867,) and to §§ 1, 2, and 3 of the act of 1860 relating to counties and county officers, (Comp. Laws, 409,) as giving authority to the county commissioners to assign tax-sale certificates belonging to the county. These sections are undoubtedly broad enough in their language to give just such power as is claimed, and would do so if a different intention had not elsewhere been expressed by the legislature. Section 44 of said tax law of 1860 reads as follows:
“ Sec. 44. If any lands or town lots shall be bid off for the county the. treasurer shall make a certificate to the county similar to that specified in the preceding section, which certificate shall be assignable by the coumt/ytreasu/rer in like manner as those given to other purchasers; and such certificates shall be subject to purchase by any person offering to pay therefor a sum equal to tbe cost of redemption at that time.” (Comp. Laws, 867.)
This section was passed by the same legislature that passed said §§ 43 and 1, 2, and 3. It was passed at the same time and as a part of the same act with § 43, and was passed after, but only two days after, §§ 1, 2, and 3. Now as the legislature, by this section, seems to have given all power to the county treasurer to assign the tax-sale certificates, we think it appears by necessary and unavoidable implication that they did not intend to give the same power to the county commissioners. Afterward on the 5th of March 1864 when said § 44 was repealed the repealing thereof did not have the effect of enlarging the powers of the county commissioners, or enlarging the meaning of said §§ 43, and 1,2, and 3. Those sections of course retained their precise original meaning. We suppose it would hardly come within the scope of legislative power under our constitution to enact laws except by positive enactments. It would hardly be within the power of the legislature to enact laws simply by repealing others. Under our constitution the repeal of a repealing statute would not revive the original act. (Art. 2, § 16, Const.)
We believe we have now passed over the entire field, and found that on the first day of June 1866 there was no power vested in any person or persons to assign tax-sale certificates on lands bid off for the county at a tax sale prior to 1864; and hence a tax deed showing that the certificate upon which it was executed was such a certificate, and assigned on that day, is void upon its face. This precise question was decided in the same way by the U. S. circuit court, Justice Miller presiding, at its May Term at Topeka in 1871, in the case of Swope v. Saine, 1 Dillon’s C. C. Rep., 416.
We have already decided that a tax deed void upon its face will not of itself and alone cause the statute of limitations to ruiL fayor: Shoat v. Walker, 6 Kas., 65, 73, 74. ^ie "words of that decision, “ The statute of lunRations will not run in favor of a tax deed, void upon its face, while the land intended to be conveyed by the tax deed remains vacant and unoccupied.” This decision we reaffirm. And we would further say — as it seems from the record in this case that the plaintiff was in possession of the property in controversy at the commencement of this suit — that the statute of limitations will not run in favor of such a tax deed where the owner of the land is in possession of and occupies the same.
There would seem to be no reason why a void tax deed should cause the statute of limitations to run in its favor. Does a party holding such a deed constructively oust the original owner by simply putting his deed on record, whether the original owner be in the actual possession of the property covered by ^e deed or not? A void tax deed cannot draw after it, nor to it, the constructive possession of the property, although the property may be vacant and unoccupied. Then why should the original owner commence any action to test the validity of the tax deed? He need not commence an action for the recovery of his property, for he is already in the constructive if not in the actual possession thereof; and his title is as good as it ever was. He need not commence an action to remove a supposed cloud from his title, for a deed void upon its face is no cloud upon his title. He need not commence an action to have the deed declared void, for the deed itself upon its face furnishes sufficient evidence of that fact, and about as good evidence as a record of a court declaring the fact would be. Indeed, there would seem to be no reason whatever in any case for the owner of the land to invoke the interposition of a court of justice. The instrument itself would always furnish sufficient evidence to defeat any claim set up under it.
Another question is raised in this case. It is claimed that the plaintiff did not tender the amount of the taxes, costs, etc., to the defendant as provided in § 11 of the tax law of March 6th 1862, (Comp. Laws, 880,) and § 90 of the tax law of 1866. There are probably two or three reasons why it was not necessary to make such a tender. First, this does not seem to be the kind of action in which such a tender was required. Second, both of said sections were repealed before this suit was commenced: Laws of 1866, p. 291, § 117; Gen. Stat., 1063, § 147. This suit was commenced June 4th 1870. But it is claimed that said sections could not be repealed so as to affect the defendant, for to do this would disturb a vested right and, impair the obligation of his contract. But we have already decided that the defendant did not by virtue of said assignment and tax deed obtain any rights to be disturbed, nor make any legal contract to be impaired. Third, it is not certain that said provision is constitutional; ( Weller v. St. Paul, 5 Minn., 106;) though probably the weight of authority is that it is constitutional as applied to certain cases: Wakeley v. Nicholas, 16 Wis., 588; Smith v. Smith, 19 Wis., 615, 620. Upon this question however we express no opinion. The judgment of the court below is affirmed,
All the Justices concurring. | [
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The opinion of the court was delivered by
Kingman, C. J.:
An execution was issued against the plaintiff in error, a discharged bankrupt, and was levied upon his goods. He thereupon brought an action of replevin for the property against the sheriff, and obtained the possession of the goods so levied on. The sheriff, defendant in error, filed an answer admitting the property to have belonged to plaintiff on the 10th of January, 1870, but that on that day he as sheriff of Bourbon county by virtue of the execution, which he sets out in full, levied on the goods, and by virtue of said levy he held the goods and was entitled to the possession thereof. To this answer plaintiff filed his reply, not denying the allegations of the answer, but alleging, 1st, That he was legally released from the claim and judgment on which the execution aforesaid was issued, by ca discharge in bankruptcy, under the laws of the United States, issued by the District Court for the District of Kansas, which discharge is set out in full. 2d, That on the 22d'of January, 1870, the judgment on which said execution was issued was by the district court of Leavenworth county discharged. To this reply said defendant demurred, and the court sustained the demurrer to the second ground of reply and overruled it as to the first, and plaintiff excepted. On the trial the court refused to permit the plaintiff to introduce any testimony. Defendant then introduced testimony tending to show the value of the goods, and the jury were instructed to find for the defendant, to find also the value of the goods, and the defendant’s interest in them at the time they were taken from him, which was the amount he was required to levy under the execution set up in the answer. To the refusal to receive the testimony offered by him plaintiff excepted; and to the testimony offered by defend ant plaintiff also excepted. The judgment on which the execution issued was rendered on the 19th of December, 1866, in Leavenworth county. This execution was issued on the 8th of December, 1869, and was levied on the 10th of January, 1870, and the goods were replevied the next day. The certificate in bankruptcy was issued on the 2d of January, 1868, as shown by the copy attached to the reply.
It will be observed from this summary of the record that the plaintiff does not deny any part of the answer, so that all that is new matter must be taken as true. The plaintiff by his reply sets up a discharge in bankruptcy as showing that the judgment had been discharged thereby, and also that after this suit was commenced a discharge of the judgment had been entered upon the records of Leavenworth county. But the existence of the judgment, the issue of the execution thereon, and the levy and seizure of the property thereunder, are not denied, and are to be considered as admitted facts. This state of the pleadings raises a question the decision of which will go far to dispose of all the errors alleged.
Has the defendant in an execution, regular upon its face and issued by the proper authority, and by virtue of which the officer to whom it, is directed has levied upon and taken possession of the property of such defendant, the right to recover such property by proceedings in the nature of an action of replevin? It is conceded in the argument that if the judgmeD-t 011 which the execution issued, is a valid judgment, that it cannot be brought in question py -¡q¿s ]¿n¿ 0f action> No one can question this conclusion who will read the fourth clause of section 177 df the code, which is as follows: “ That it was not taken in execution on any order or judgment against said plaintiff, or for the payment of any tax, fine, or amercement assessed against him, or by virtue of an order of delivery issued under tin's article, or any other mesne or final process issued against said plaintiff.” All these facts must be sworn to exist before the order of delivery can be made; a fortiori they must exist as facts. But tbe clause does not confine tbe facts to a valid judgment. A valid judgment cannot be successfully contested in any way except by proceedings to set it aside. So that tbe object of tbis clause of tbe section is not solely to protect tbe process of tbe court when issued on a valid judgment. Tbe object of tbe clause, as drawn from its ° _ language, and irom other parts oi the section, as well as from tbe bistory of tbe action known as replevin, is to compel a party wbo desires to contest tbe validity of cmy judgment or order of a court, or any tax, fine, or amercement, or cmy other mesne or final process so to do in some other way than by seizing property already in tbe custody of tbe law. An order of attachment is most frequently issued by tbe clerk under tbe law. If improvidently issued, and property is seized, tbe remedy is not tolerated of taking it out of tbe possession of tbe law, and by sneb a proceeding trying tbe validity of tbe order, or writ. A safer and more reasonable remedy exists. Much less ought tbe validity of a judgment to be contested in such a proceeding. If tbe execution is improperly issned, or tbe judgment-creditor wrongfully causes an execution to be issued on a satisfied or discharged judgment, tbe remedy is plain, and well adapted to try tbe question, while tbe action of replevin is not. And so tbe code has written the law. We may revert to the fifth danse of the same section as an apt illustration of the legislative wisdom in the law, for it provides that where the property taken in execution or on any order or judgment against the plaintiff is exempt by law from being so taken then the order may issue; for in such a case the validity of the judgment, or order, or the execution, is not brought in issue, and cannot be. For the purpose of such a case they must all be admitted, and a new issue made as to property seized under valid and regular process. Nor, under proceedings under this clause, do we suppose the plaintiff could litigate, by any issue he might offer, any of the steps in the proceeding except a wrongful levy upon property not subject thereto.
At common law if cmy person should take out a replevin for property taken in execution issuing from a superior court, the court would commit him for a contempt of their jurisdiction 1 Chitty Pl., 164. The code has so modified this that any person other than the judgment-debtor, or person against whom the process is issued, may have this remedy, because the issues made in any such proceeding by a stranger raise no question as to the validity or regularity of the judgment or process; and several of the states have adopted statutes similar to ours. The' wisdom of our code on this subject, as we construe it, is vindicated by the following observations, showing the utter confusion that would result from the code if the construction should be given to it claimed by the plaintiff in error: “If a defendant in the execution, after judgment had been legally entered against him upon a full and fair trial, were tolerated in bringing his action of replevin, and by it to replevy the goods taken in execution, there might be no end to the delays which the defendant might thus create. Justice and the end of the law would be effectually subdued, for although the defendant in the execution and plaintiff in the action of replevin would fail upon the trial, and judgment would be rendered in favor of the officer for the restoration of the property, yet the action might be again and again renewed, and.delay without end effected. To prevent such abuses, and such contempts of the authority of courts, to prevent the monstrous absurdity of rendering the remedies afforded by law with a view to redress wrongs the means of defeating the very end to be accomplished, the defendant in an execution, who should thus pervert the action of replevin, might and ought to be severely punished for contempt.” Phillips v. Walker & Harris, 3 J. J. Mar., 124.
A further reason against the construction claimed is, that the redress afforded by the action of replevin is not complete. The plaintiff in error is not complaining of this; but still it may be mentioned as a reason for not giving the section a construction its language will not readily bear. If replevin would lie, and the plaintiff was successful, still another execution might issue, and endless litigation ensue, unless the defendant in the execution should have the matter corrected by appropriate proceedings in the court from which the execution issued.
But it is claimed that the petition need not contain the same averments as the affidavit. The latter is to obtain immediate possession. The action may proceed, though imine- . 0 f , i ° t> a /1 díate possession be not sought, wanted. Jtfut the averments in the affidavit must be true, or replevin does not lie; and if immediate possession is not sought there is no replevin, and the supposed case is not this ease. Here immediate possession was sought, and obtained. The facts admitted by the pleadings did not permit it; and therefore the court below did not err in preventing the plaintiff from introducing testimony.
Neither was there error in excluding the testimony when offered to lessen the amount of the verdict; for the plaintiff in error, if aggrieved, had a most ample remedy. Let him return the property to the custody of the law, whence he had unlawfully taken it, and correct the error by appropriate proceedings in the proper tribunal. This conclusion disposes of the whole case; for even if it was error to sustain the demurrer to one count of the reply, and overrule it as to the other, when the demurrer was to both, still it was error against the defendant in error, for both counts of the reply were bad.
VAT.wmng, J., concurring. Brewer, J., not sitting.
[* As a question Praotioe, the language of the text will scarcely he construed as requiring the plaintiff in replevin on the trial of the action to prove the negative averments required hy the 4th clause of § 177 of the code, (and § 56 of the Justice’s Act,) to he inserted in the affidavit, whether such averments are repeated in the petition or not. In Carney v. Doyle, 14 Wis., 270, the Supreme Court of Wisconsin, in an action which originated in a justice’s court decided that “it is not necessary for the plaintiff to prove ” “ that the property he seeks to recover had not heen taken for any tax or hy any execution or attachment against him.” These matters “must exist as facts;” hut a mere denial'by the defendant does not put'them in issue so as to “throw upon the plaintiff the burden of proving a negative, or of disproving any justification for the taking of his property.” “The object of the statute in requiring these averments,” says the Wisconsin court, “ was to prevent parties who knew their property had heen thus taken from replevying it.” But whenever a defendant seeks to justify the taking, he is required to allege and prove affirmatively such facts as constitute legal protection; and he may, if he can, allege and prove that the property was taken under legal process against the property of the plaintiff. Such proof duly made defeats replevin brought hy such plaintiff, (except where the property is hy Jaw exempt,) because in such case the matters stated in the averments are shown not to “ exist as facts,” and the action cannot he maintained. See also. Hudler v. Golden, 36 N. Y., 446; O'Reilly v. Good., 42 Barb., 521. —Reporter.] | [
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The opinion of the court was delivered by
Luckert, J.:
This appeal relates to 4.5 miles of a railroad right-of-way in Miami County, Kansas, that has been railbanked and is now operated as a recreational trail. Generally, the issues in this appeal focus on the relationship between and the application of the Kansas Recreational Trails Act (KRTA), K.S.A. 58-3211 etseq., and the National Trails System Act, commonly referred to as the federal Rails to Trails Act (Trails Act), 16 U.S.C. § 1241 et seq. (2010). Specifically, this appeal raises the issues of:
(1) Whether 16 U.S.C. § 1247(d) (2010) of the Trails Act preempts the KRTA and, particularly,
(a) Whether the KRTA is preempted because it impermissibly conflicts with 16 U.S.C. § 1247(d) of the Trails Act;
(b) Whether the KRTA is preempted because it violates the Commerce Clause of the United States Constitution by impermissibly discriminating between types of recreational trails;
(2) Whether the KRTA violates equal protection rights by estabhshing statutory requirements for recreational trails created by interim use of railroad rights-of-way; and
(3) Whether the district court has jurisdiction to set the amount of bond required under the KRTA when the parties disagree as to the amount.
The district court, in addressing the original action for a writ of mandamus, concluded the KRTA was not preempted by 16 U.S.C. § 1247(d) of the Trails Act, was not in conflict with the Trails Act, and did not violate any constitutional rights. Additionally, the district court determined that Miami County had the authority to require a bond, and the court required Kanza Rail-Trails Conservancy, Inc. (Kanza) to pay a bond of $9,040.
Kanza appealed, and the matter was transferred to this court pursuant to K.S.A. 20-3018(c). We affirm.
Federal and State Statutes
The federal statute at issue was adopted in 1976 when Congress passed the original version of the Trails Act, which was aimed at promoting the conversion of abandoned rail lines to recreational trails. Preseault v. ICC, 494 U.S. 1, 6-7, 110 S. Ct. 914, 108 L. Ed. 2d 1 (1990). Pursuant to its authority to regulate interstate commerce, Congress granted the Interstate Commerce Commission (ICC), and later the Surface Transportation Board (STB), exclusive authority over the construction, operation, and abandonment of the nation’s rail lines. In light of that authority, when a railroad operator wants to cease operations on a rail line, it must file a notice of its intent with the STB, which can authorize the abandonment only if it finds that public convenience and necessity require it. 49 U.S.C. § 10903(d) (2006). In this process, as provided by amendments to the Trails Act adopted by Congress in 1995, the STB has the authority to preserve rights-of-way not currently in service for possible future railroad use (called “railbanking”) and to allow interim use of the land as recreational trails. Preseault, 494 U.S. at 6-7.
To facilitate this interim use of a railroad right-of-way, the Trails Act provides that a railroad wishing to cease operations along a particular route may negotiate with a state, municipality, or private group that is prepared to assume financial and management responsibility for the right-of-way. Specifically, pursuant to the 1995 amendments, 16 U.S.C. § 1247(d) of the Trails Act provides in part:
“If a State, political subdivision, or qualified private organization is prepared to assume full responsibility for management of such rights-of-way and for any legal liability arising out of such transfer or use, and for the payment of any and all taxes that may be levied or assessed against such rights-of-way, then the Board shall impose such terms and conditions as a requirement of any transfer or conveyance for interim use in a manner consistent with this chapter, and shall not permit abandonment or discontinuance inconsistent or disruptive of such use.”
If no agreement is reached, the railroad may be permitted to abandon the fine entirely. Preseault, 494 U.S. at 6-8.
In addition to these federal provisions relating to the interim use of a rail line as a recreational trail, the Kansas Legislature adopted the KRTA, which relates to the development and use of any property that is transferred or conveyed for interim use. Under the KRTA, “[u]pon receipt of permission from the appropriate federal agency to enter into negotiations for interim trail use, the responsible party shall give written notice to each adjacent property owner that the responsible party intends to build a recreational trail adjacent to the property owner’s property.” K.S.A. 58-3213(a). Also, the responsible party must prepare a plan for development of the recreational trail and submit that plan to the commission of all counties or governing body of all cities through which the trail will pass. K.S.A. 58-3213(b)(3), (4). Two of the terms in these require ments are statutorily defined: K.S.A. 58-3211(b) defines a “[r]ecreational trail” as “a trail created pursuant to subsection (d) of 16 U.S.C. [§] 1247 (1983)” of the Trails Act, and K.S.A. 58-3211(c) defines a “[responsible party” as “any person, for-profit entity, not-for-profit entity or governmental entity that is responsible for developing, operating or maintaining a recreational trail.”
K.S.A. 58-3212 of the KRTA imposes several duties on the responsible party, including: providing for safety, use, and accessibility of the recreational trail; providing for litter control; providing for education of trail users and signage regarding safety, trespassing, and fitter control; maintaining the trail so it does not create a fire hazard; providing trash receptacles and cleanup of trash and fitter; prohibiting the use of motorized vehicles other than wheelchairs and maintenance, law enforcement, and emergency vehicles; prohibiting hunting or trapping along the trail; providing law enforcement along the trail; maintaining and installing fencing between the trail and adjoining property; and maintaining the trail, bridges, culverts, roadway intersections, crossings, and signs on the trail. K.S.A. 58-3212(a).
To protect the city or county from damage if a nongovernmental responsible party does not fulfill these obligations, K.S.A. 58-3212(b) provides that the nongovernmental responsible party “shall file” with the county clerk of each county “where a portion of the recreational trail is or will be located a bond or proof of an escrow account in a Kansas financial institution, as defined by K.S.A. 16-117[,]” payable to the county. The statute specifies that “[t]he bond or escrow account shall be conditioned on the responsible party’s performance, and shall be in an amount agreed upon between the responsible party and the county commission as sufficient to fully cover” the annual enumerated costs. K.S.A. 58-3212(b).
The dispute in this case arose over the application of these statutes to the proposed development of a recreational trail in Miami County, Kansas.
Facts and Procedural Background
The factual background begins when the Missouri Pacific Rail road Company (Missouri Pacific) sought to abandon a portion of the railroad right-of-way between milepost 335.5 near Osawatomie and milepost 388.25 near Osage City. On Januaiy 30, 1995, Missouri Pacific was authorized by the STB to negotiate an interim use/railbanldng agreement with the Rails-to-Trails Conservancy (RTC) for the right-of-way pursuant to the Trails Act. Nearly a year later, Missouri Pacific notified the STB that this rail line plus some additional line (collectively known as the Hoisington Subdivision) had been conveyed to the RTC through a donative quitclaim deed in accordance with the Trails Act, effective December 1995.
Pursuant to a May 1996 request by the RTC and Seranata Farms School of Equestrian Arts (Seranata), a nonprofit corporation, Seranata agreed to assume full responsibility for management of the Missouri Pacific right-of-way, and the RTC deeded the abandoned corridor to Seranata. As a result, the STB reopened the matter, vacated the previous Certificate of Interim Trail Use, which had been issued to the RTC, and issued a replacement certificate to Seranata.
In 1997, the same process was followed when Seranata deeded its interest in the right-of-way to the Kansas Horseman Foundation, Inc., another nonprofit corporation, and the STB authorized the Kansas Horseman Foundation to be the new trail user. Subsequently, the Kansas Horseman Foundation changed its name to Kanza Rail-Trails Conservancy, Inc., which is its current name. Under the Trails Act, therefore, Kanza is the current responsible party for the Missouri Pacific right-of-way, which runs through several counties, including Miami County where there is 4.5 miles of trail.
Before 2005, the Miami County Board of Commissioners (Miami County) had limited contact with Kanza and its predecessors. Nevertheless, over the years, disagreements arose concerning Kanza’s obligations under Kansas law and the authority of Miami County to enforce those obligations. Kanza began working on a recreational trail in November 2005 without any discussions with or notice to Miami County. From November 2005 through July 2008, Kanza developed the recreational trail, providing maintenance and signage as it deemed appropriate, controlling noxious weeds under the guidance of the Miami County Noxious Weeds Compliance Officer, and removing some fitter from the trail. Because these activities were ongoing, by the time the district court issued its journal entry of judgment in 2008, the recreational trail development was nearing completion.
Meanwhile, on December 5, 2005, Miami County took informal action by requesting representatives of Kanza to meet with Miami County Administrator Shane Krull to resolve differences and to discuss the KRTA regulations for usage of the right-of-way as a recreational trail. Miami County also requested that the county administrator establish the amount for a bond to be posted or an escrow account to be established by Kanza.
Communications between the county administrator and Kanza were not productive. Krull, on behalf of Miami County, determined that the KRTA required Kanza to provide certain specific maintenance of the recreational trail-such as center post bollards to deter motor vehicles from using the trail, noxious weed control, signs, fitter control, and fences. Krull calculated the amount of bond or escrow account on the estimated cost of those features. By letter on December 14, 2005, Miami County notified Kanza, in part, that the county would request a bond in the amount of $73,620 to comply with the requirements of the KRTA and that Kanza should cease work on the recreational trail. The estimate was broken down as follows: ‘Weed Control, $4,680.00; Litter Control $1,745.00; Trail Maintenance $1,200.00; Fencing $63,360.00; and Signage $2,635.00.” The letter further provided that the “bond could be reduced in future years as the permanent improvements, i.e., fencings, signs, etc., are installed and only require periodic maintenance.” Kanza objected.
When no agreement was reached by the parties, Miami County filed a petition for writ of mandamus with the district court. Kanza filed a timely answer to Miami County’s petition, but it also filed a motion to dismiss based on the contention that the Trails Act preempts the KRTA. After holding a hearing at which the parties presented their arguments, the district court denied Kanza’s motion to dismiss, finding that the KRTA is not preempted by federal law. The court stated that if it were to hold that the Trails Act preempts the KRTA,
“[s]uch a ruling would vitiate the Kansas Act without regard to the manner in which it might be implemented. The Court is not prepared to take such action. Not only does the Court find ample room for the co-existence of a well-employed KRTA and the [Trails Act], numerous examples in Kansas and elsewhere demonstrate that the [Trails Act] needs state/local regulatory involvement to accomplish the purposes of the Federal Act. However, the Court is mindful that the manner in which the KRTA is implemented may be inconsistent with the [Trails Act], Whether the Plaintiffs position in implementing the KRTA is arbitrary or in conflict with the [Trails Act] shall be the focus of future proceedings in this action.”
The district court also ordered the parties to participate in mediation for resolving the amount of the bond or escrow account required to cover the expenses of Kanza’s trail management duties. When mediation proved unsuccessful, the district court held a status conference and set the case for trial. The court reiterated that it had previously determined that die Trails Act does not preempt the KRTA and that “the remainder of the case is to determine whether the Plaintiff s implementation of the [KRTA] is arbitrary or in conflict with the [Trails] Act.”
After a brief bench trial, the district court granted Miami County’s petition for writ of mandamus. In making findings, the district court examined the evidence relating to each statutory duty and made extensive findings regarding the tasks that Kanza had completed, the tasks that needed to be performed and the costs relating to each, and the costs of ongoing obligations. The district court rejected Miami County’s arguments on some duties, including a suggestion that Kanza should erect center post bollards. The district court also ruled that the KRTA controlled the type of fencing that must be installed and general Kansas fence laws, specifically K.S.A. 29-101 (requiring enclosure of domestic animals with fence), did not apply. In a related matter, the district court made findings regarding the parties’ differing views on the need and cost of fencing between the trail and the adjoining property of two landowners. In light of the evidence regarding the cost of fulfilling the various responsibilities, the district court discussed the statutory requirement for a bond or escrow account:
“Plaintiffs trial position is that pursuant to the KRTA, [Kanza] should file a bond/escrow account in the range from $10,440 to $13,590, which bond/escrow account will cover the annual obligations for responsible parties specifiedin K.S.A. 58-3212(b). While Plaintiffs Exhibit 9 details its bond/escrow account computations, the following general summary is instructive:
“Weed Control $2,340
“Fences and Gates $5,600 to $7,600
“Trailhead Improvement (including litter control) $2,500 to $3,650.”
The district court then discussed the evidence regarding these expenses and concluded the following costs were reasonable: $2,340 for annual control of noxious weeds, $1,400 for installation of litter receptacles and the annual cost of fitter control, $5,200 for installing fencing, and $1,500 for installing signs. Consequently, the district court ordered Kanza to file with the County Clerk of Miami County a bond or proof of an escrow account in a Kansas financial institution, as defined in K.S.A. 16-117, payable to Miami County in the amount of $9,040.
Additional facts and findings will be discussed further as necessary in the analysis.
Issue 1. Federal Preemption
First, Kanza argues that the district court erred in finding that the Trails Act, specifically 16 U.S.C. § 1247(d), does not preempt K.S.A. 58-3212 of the KRTA. Kanza takes two approaches to this argument. In one approach, Kanza argues that the KRTA is preempted because the federal government has traditionally regulated railroad rights-of-way and because the KRTA impermissibly conflicts with the Trails Act. In the other approach, which is an argument stated in the alternative, Kanza argues that the KRTA is preempted because it impermissibly discriminates against interim recreational trails in railbanked rights-of-way (rail-trails). In making this argument, Kanza melds a Supremacy Clause (Article VI, paragraph 2 of the United States Constitution) argument with an argument that the KRTA violates the Commerce Clause (Article I, section 8, clause 3 of the United States Constitution) because it places requirements on rail-trails but does not place such requirements on any other category of recreational trail.
Neither of Kanza’s approaches is persuasive.
A. Standard of Review/Preemption Doctrine Generally
Preemption is a question of law over which this court exercises de novo review. Zimmerman v. Board of Wabaunsee County Comm’rs, 289 Kan. 926, 974, 218 P.3d 400 (2009); Steffes v. City of Lawrence, 284 Kan. 380, 385, 160 P.3d 843 (2007).
The doctrine of federal preemption is founded in the Supremacy Clause of the United States Constitution:
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof, . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const, art. VI, paragraph 2.
Simply put, the Supremacy Clause invalidates state laws that interfere with, or are contrary to, federal law. Application of this well-recognized interpretation of the Supremacy Clause has led to recognition that federal law may supersede state law in several different ways, and in turn this recognition has led to the use of several analytical categories. See Doty v. Frontier Communications, Inc., 272 Kan. 880, 889, 36 P.3d 250 (2001).
Broadly speaking, a preemption analysis divides into two principal categories: express and implied preemption. Implied preemption is further divided into two analytical subcategories: field preemption and conflict preemption. Then, yet a third strata of analytical subcategories is used when examining claims of conflict preemption: per se conflict and obstacle preemption. English v. General Electric Co., 496 U.S. 72, 79, 110 S. Ct. 2270, 110 L. Ed. 2d 65 (1990); Hillsborough County v. Automated Medical Labs., Inc., 471 U.S. 707, 713, 105 S. Ct. 2371, 85 L. Ed. 2d 714 (1985); see Geier v. American Honda Motor Co., 529 U.S. 861, 884, 120 S. Ct. 1913, 146 L. Ed. 2d 914 (2000) (referring to both field and conflict categories as implied preemption); Freightliner Corp. v. Myrick, 514 U.S. 280, 287, 115 S. Ct. 1483, 131 L. Ed. 2d 385 (1995) (same). Even though it is analytically helpful to consider the relationship of these categories, it must be remembered that these analytical categories are not “rigidly distinct.” English, 496 U.S. at 79 n.5. For example, “field pre-emption may be understood as a species of conflict pre-emption: A state law that falls within a preempted field conflicts with Congress’ intent (either express or plainly implied) to exclude state regulation.” English, 496 U.S. at 79 n.5.
In this case, both parties cite to our decision in Doty, in which we enumerated and summarized the categories of implied preemption, noting the doctrine applied to situations
“[1] where there is an actual conflict between federal and state law; [2] where compliance with both federal and state law is, in effect, physically impossible; [3] where Congress has occupied the entire field of regulation and leaves no room for states to supplement federal law; or [4] when the state law stands as an obstacle to the accomplishment and execution of the full objectives of Congress.” Doty, 272 Kan. 880, Syl. ¶ 4.
With this analytical framework in mind, we will consider Kanza’s preemption arguments.
B. Scope of Federal Regulation of Railbanked Rights-of-Way
1. Express Preemption
The first of the two principal categories — express preemption— applies when Congress makes its intent known through explicit statutory language. English, 496 U.S. at 79. Kanza admits that Congress did not make an express statement of preemption with respect to the management responsibilities for a rail-trail when it enacted the Trails Act, specifically 16 U.S.C. § 1247(d). As we will more fully discuss, there are areas related to railroads and the possession and use of railroad rights-of-way where Congress expressly preempts state law. See 49 U.S.C. § 11501(b) (2010); Rasmuson v. United States, 91 Fed. Cl. 204, 206 (2010). Nevertheless, these express statements that preempt state law do not address the type of health and safety regulations regarding development and use of trails that are at issue in this case.
2. Implied Preemption
Even so, the federal provisions that expressly preempt state regulation play a role in our analysis of the second principal category— implied preemption. Implied preemption occurs when Congress does not expressly preempt state law, but its intent to do so can be inferred from a statutory or regulatory scheme. English, 496 U.S. at 79. Kanza suggests an intent to preempt state law can be inferred because of the pervasive nature of federal regulation of railroads and railbeds, i.e., field preemption, and because of its intent to prohibit any state or local law that would conflict with the objectives of the Trails Acts, i.e., conflict preemption. Kanza focused on conflict preemption in its initial brief filed with this court but expanded its argument to include field preemption in its reply to Miami County’s suggestion that we should presume that Congress did not intend to preempt the KRTA. Because of the potential role this presumption has in our analysis, we will first discuss the presumption and the field preemption arguments that relate to its application.
a. Field Preemption and Presumption
The presumption is often noted in this court’s cases dealing with preemption. Simply stated, “ ‘[i]n the absence of express preemption in a federal law, there is a strong presumption that Congress did not intend to displace state law.’ [Citation omitted.]” Zimmerman, 289 Kan. at 975. However, the presumption does not apply if the area of regulation is one where the interests at stake are “uniquely federal” in nature. Boyle v. United Technologies Corp., 487 U.S. 500, 504, 108 S. Ct. 2510, 101 L. Ed. 2d 442 (1988); see Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 347, 121 S. Ct. 1012, 148 L. Ed. 2d 854 (2001) (The Court declined to apply the presumption because “[p]olicing fraud against federal agencies is hardly ‘a field which the States have traditionally occupied.’. . . To the contrasty, the relationship between a federal agency and the entity it regulates is inherently federal in character . . . .”); United States v. Locke, 529 U.S. 89, 108, 120 S. Ct. 1135, 146 L. Ed. 2d 69 (2000) (holding presumption applies “ ‘in [fields] which the States have traditionally occupied,’ ” but declining to apply it because “national and international maritime commerce” is not such a field).
Kanza argues preemption occurs because we are dealing with a field traditionally occupied by the federal government — railroads and railroad rights-of-way — and Miami County argues we are dealing with an area typically occupied by the states — historic police powers. These arguments are closely related to the first of the two types of implied preemption, known as field preemption. Field preemption applies when “Congress’ intent to pre-empt all state law in a particular area may be inferred [because] the scheme of federal regulation is sufficiently comprehensive” or “ ‘the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.’ ” Hills-borough County, 471 U.S. at 713 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S. Ct. 1146, 91 L. Ed. 1447 [1947]).
In sorting out the parties’ opposing viewpoints, we recognize that, without question, Congress has regulated some aspects of railbanking. The historical roots of this regulation begin with the federal regulation of railroads, which is both pervasive and comprehensive. See, e.g., Chicago & N.W. Tr. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 318, 101 S. Ct. 1124, 67 L. Ed. 2d 258 (1981). Numerous court decisions recognize that Congress has exercised preemptive, if not exclusive, power to regulate the railroads. See, e.g., Norfolk & Western R. Co. v. Train Dispatchers, 499 U.S. 117, 128, 111 S. Ct. 1156, 113 L. Ed. 2d 95 (1991) (Congress’ intent to exempt railroads from antitrust laws and all other laws, including state and municipal laws, was “clear, broad and unqualified”); Chicago & N.W. Tr. Co., 450 U.S. at 320 (ICC’s [now STB’s] abandonment authority is “plenary” and “exclusive”); Missouri Pacific R.R. Co. v. Stroud, 267 U.S. 404, 408, 45 S. Ct. 243, 69 L. Ed. 683 (1925) (Congress’ acts concerning interstate commerce are “supreme and exclusive”).
In addition, through other legislation, Congress has exercised federal authority over railroad rights-of-way when possessed for railway purposes. For example, the STB preemption statute provides that the STB’s jurisdiction over “the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities ... is exclusive.” 49 U.S.C. § 10501(b) (2010). This provision continues with an express statement of preemption: “[T]he remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law.” 49 U.S.C. § 10501(b).
As this statutory provision indicates, the federal government exclusively regulates the abandonment or discontinuance of a railroad right-of-way, and railbanking is clearly a part of that regulatoiy process. As the United States Supreme Court found, when Congress amended the Trails Act again in 1983, it sought to “ preserve established railroad rights-of-way for future reactivation of rail service, to protect rail transportation corridors, and to encourage energy efficient transportation use.’ [Citations omitted.]” Preseault v. ICC, 494 U.S. 1, 18, 110 S. Ct. 914, 108 L. Ed. 2d 1 (1990). Further, under the plain language of 16 U.S.C. § 1247(d), the subject provision in this case, it is clear that railbanked rights-of-way remain part of the national rail transportation system subject to the jurisdiction of the STB. In other words, the STB retains jurisdiction for future railroad use. See Preseault, 494 U.S. at 5 n.3; Good v. Skagit County, 104 Wash. App. 670, 675-76, 17 P.3d 1216, rev. denied 144 Wash. 2d 1013 (2001).
But it must be emphasized that the STB’s role in a railbanking proceeding is “largely ministerial.” Goos v. I.C.C., 911 F.2d 1283, 1296 (8th Cir. 1990). This is obvious in that Congress has determined that every inactive railroad right-of-way is appropriate for recreational trail use. Under 16 U.S.C. § 1247(d) and 49 C.F.R. § 1152.29(a)(2) (2009), the STB must issue a Notice of Interim Trail Use in an exempt abandonment proceeding, 49 C.F.R. § 1152.29(d), or a Certificate of Interim Trail Use in a regular abandonment proceeding, 49 C.F.R. § 1152.29(c), when a private party files a statement of willingness to assume financial responsibility, and the railroad agrees to negotiate. Goos, 911 F.2d at 1286, 1295; see, e.g., Citizens Against Rails-To-Trails v. S.T.B., 267 F.3d 1144, 1153 (D.C. Cir. 2001); see also Buffalo Tp. v. Jones, 778 A.2d 1269, 1276 (Pa. Commw. 2001) (“Nowhere in Section 1247[d] does the Act require a municipality, which has accepted full responsibility for management of the right-of-way, including legal and financial liability arising out of its use as a recreational trail, to obtain approval from the ICC in order to take advantage of the protections of the Act.”).
In addition, the focus of the federal regulation of rail-trails is on the ability to restore the right-of-way to railroad use at a later date and to ensure that any present use does not interfere with the future potential. Specifically, 16 U.S.C. § 1247(d) requires that the interim use be subject to subsequent restoration of rail use and that the interim trail user (operator) takes responsibility for management of the right-of-way and all associated liability and taxes. See 49 C.F.R. § 1152.29(a).
The federal government’s occupation of the field of regulating the rail-trad ends there, however. While the Supreme Court in Preseault, 494 U.S. at 17-18, recognized that the Trails Act serves the dual purposes of preserving established railroad rights-of-way in case of future activation and encouraging the development of trails for recreational use on an interim basis, the Trails Act does nothing to regulate the use of the trails during that interim. In other words, nothing in the federal regulatory scheme addresses specifics of the operation of a rail-trail. This distinction has been recognized by the STB in a written decision, Idaho N. & Pac. R.R. — Abandonment b- Discontinuance Exemption — In Washington & Adams Counties, ID, STB Docket No. AB-433 (Sub-No. 2X) (STB served April 1, 1998).
In that decision, the STB emphasized that a trail operator must ensure satisfaction of the federal objective “that nothing occur that would preclude a railroad’s right to reassert control over the right-of-way at some future time to revive active service” but must also “use the right-of-way so that it does not become a public nuisance.” STB Docket No. AB-433 (Sub-No. 2X), at 9. The second obligation “is a state or local requirement, not a Board requirement. Federal preemption does not extend to the legitimate exercise of police power by states and localities.” STB Docket No. AB-433 (Sub-No. 2X), at 9. The STB continued, stating:
“ “We note, however, that a trail use must comply with State and local land use plans, zoning ordinances, and public health and safety legislation. . . . This local regulation can address the Landowners’ concerns about such issues as vandalism or noise. . . . Indeed, the State and local agencies in the area are attuned to the specific interests and needs of their communities. . . . Nothing in our Trails Act rules or procedures is intended to usurp the right of state, regional and local entities to impose appropriate safety, land use, and zoning regulations on recreational trails.’ [Citation omitted.]” STB Docket No. AB-433 (Sub-No. 2X), at 9-10.
See also Bingham, Twp. v. RLTD R. Co., 228 Mich. App. 154, 159 n.4, 576 N.W.2d 731 (1998) (stating that local “regulations may, for example, provide for the enforcement of criminal and civil laws, construction and maintenance of fencing, and limitation of noise” related to rails).
Accordingly, numerous states have enacted recreational use statutes that regulate the use and safety of rail-trails. See, e.g., Cal. Pub. Res. Code Annot. § 5070 et seq. (West 2001); Fla. Stat. § 260.011 to § 260.018 (2010); Iowa Code § 465B.1 to 465B.4 (2011); Ky. Rev. Stat. Ann. § 148.610 et seq. (Michie 2009); Md. Nat. Res. Code Ann., § 5-1010 (Michie 2005); Minn. Stat. § 84.029 et seq. (2010); Ohio Rev. Code Ann. § 1519.01 to § 1519.99 (2007); Pa. Cons. Stat. § 5611 et seq. (1997); Wash. Rev. Code § 64.04.180 et seq. (2010); W. Va. Code Annot. § 5B-1A-1 et seq. (Michie 2010). Although these statutes vaiy widely in their content, nearly all such statutory schemes contain limitations on liability for various parties impacted by trail systems. Additionally, in various forms, many of the statutes define the scope of the state’s police power as it relates to the maintenance and use of rail-trails.
The enactment of these statutes as part of the exercise of the states’ police powers is consistent with a historical distinction between the role of the ICC/STB in regulating rail transportation and the states’ role in regulating health and safety in ways that do not interfere with the operation or conduct of rail service. See, e.g., Ridgefield Park v. N.Y., Susqu. & Western Ry., 163 N.J. 446, 459, 750 A.2d 57 (2000) (Interstate Commerce Commission Termination Act, specifically 49 U.S.C. § 10501[b] [1996], “does not preempt ‘non-discriminatoiy’ public health and safety regulations that do not foreclose or restrict a railroad’s ability to conduct its operations”); see also Sunflour R.R., Inc. v. Paulson, 670 N.W.2d 518, 523 (S.D. 2003) (“exclusive and preemptive jurisdiction granted to the STB is over attempts to impose economic regulation on rail transportation,” but state law claim for rent not established to be “regulation”); In re Vermont Railway, 171 Vt. 496, 503, 769 A.2d 648 (2000) (affirming preemption decision on zoning issues that “appears to have drawn the line between conditions that purported to regulate the operation of the railroad, including the transport of goods by the railway, and conditions that merely regulated activity regarding motor vehicles coming and going from the facility and the storage of materials at the facility”).
This distinction suggests that the federal government has not traditionally regulated the sort of public health and safety issues that arise from use of a railroad right-of-way as a recreation trail. In other words, traditional public health and safety issues related to the use of recreational trails are not issues that are uniquely federal in nature. Hence, we conclude that the presumption that Congress did not intend to displace state law applies in this case. See Buckman Co., 531 U.S. at 348; Zimmerman, 289 Kan. at 975. Similarly, as this discussion reveals, federal law is not sufficiently comprehensive nor the federal interest so dominant for us to find an intent to preempt state or local laws that regulate land use and health and safety issues related to the maintenance of a rail-trail. In summary, the doctrine of field preemption does not apply.
b. Conflict Preemption
Consequendy, as we turn to an analysis of Kanza’s conflict preemption arguments, we start with the strong presumption that Congress did not intend to preempt local regulation. Nevertheless, we could still find conflict preemption because “state law is nullified to the extent that it actually conflicts with federal law,” even though Congress has not displaced all state law in a given area. Hillsborough County, 471 U.S. at 713. As previously noted, the United States Supreme Court has identified two varieties of conflict preemption. One of the subcategories focuses on a facial or per se conflict where “it is impossible for a private party to comply with both state and federal requirements.” English, 496 U.S. at 79. The other subcategory arises even if the state law is not facially in conflict with federal law if the “state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ [Citations omitted.]” English, 496 U.S. at 79.
We do not read any of Kanza’s arguments as falling in the first subcategory; in other words, Kanza does not suggest that compliance with both the federal and state law is physically impossible. Rather, the arguments relate to obstacle preemption, which the United States Supreme Court recently explained operates such that “a state law that ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives’ of a federal law is pre-empted. [Citation omitted.]” Williamson v. Mazda Motor of America, Inc., 562 U.S__, 131 S. Ct. 1131, 1136, 179 L. Ed. 2d 75 (2011).
As the Supreme Court reiterated in Williamson, the first step of analysis is identification of the law’s objectives. As described in Preseault, the Trails Act’s objectives are (1) to preserve established rail transportation corridors and railroad rights-of-way for future reactivation of energy efficient rail service and (2) to “ ‘encourage the development of additional trails,’ ” which assists recreational users “ ‘by providing opportunities for trail use on an interim basis.’ [Citations omitted.]” Preseault, 494 U.S. at 17-18.
Kanza argues that the KRTA conflicts with these purposes and objectives because it imposes burdensome requirements that hinder the establishment of rail-trails. On appeal, the hindrance on which Kanza focuses is the requirement that nongovernmental responsible parties provide a bond or an escrow account for costs associated with the management of rail-trails. The impact of these hindrances, Kanza argues, is to set off a chain of falling dominos: the default of the trail operator because it cannot afford the bond or escrow reserve, the reversion of the trail to the railroad, and the abandonment of the line. Because this result would undercut the objectives of the Trails Act, Kanza argues the KRTA presents an obstacle and is preempted. In support of its position, Kanza cites Friends of the East Lake Sam. v. City of Sammamish, 361 F. Supp. 2d 1260 (W.D. Wash. 2005) (Sammamish), and Nebraska Trails Council v. Surface Transp. Bd., 120 F.3d 901 (8th Cir. 1997).
In Sammamish, the plaintiffs, nonprofit organizations and their members, brought an action against a municipality claiming that the city ordinance’s “practical alternative” public agency utility ex ception requirement hindered the county’s efforts to implement an interim recreational trail and was, therefore, preempted by the Trails Act. The city’s “practical alternatives” requirement did not permit destruction or alteration of sensitive areas for public agency and utility projects unless it was shown that there was no practical alternative with less impact to sensitive areas. The plaintiffs argued that any application of the city’s “practical alternatives” requirement went above and beyond merely imposing safety, land use, or zoning regulations on a recreational trail developed on railbanked land.
The Sammamish court observed that “[cjonflict preemption applies where a state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ [Citation omitted.]” Sammamish, 361 F. Supp. 2d at 1273. Citing the purposes of the Trails Act as recognized in Preseault, the Sammamish court agreed with the plaintiffs’ contention that local regulations would apply only to the extent that they would not frustrate development of a recreational trail on the railbanked right-of-way. “The purpose of the Rails to Trails Act is not to encourage the development of recreational trails near inactive railroad rights of way,” stated the Sammamish court, “it is to encourage the transition of these railbeds into recreational trails, and to preserve the right-of-way for possible future railroad reactivation.” (Emphasis added.) Sammamish, 361 F. Supp. 2d at 1274.
Pursuant to the city ordinance, the hearing officer had found there were practical alternatives to the location of the interim recreational trail on the right-of-way; the effect of this finding was that the proposed trail had to be relocated to a location other than the railbed. This application of the ordinance demonstrated that the “practical alternatives” requirement stood as an “ ‘obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ ” Sammamish, 361 F. Supp. 2d at 1274. Consequently, the Sammamish court held that 16 U.S.C. § 1247(d) preempted the application of the city ordinance to any railbanked right-of-way.
Hence, the decision is an example of applying the conflicts preemption doctrine in a rails-to-trails context. Beyond that, the de cisión has limited application to the facts of our case because the requirement of an alternative location for a recreational trail bears no similarity to a requirement that a trad operator provide a reserve to cover any losses that might result if the operator fails to meet its statutory obligation. Requiring a bond does not present an absolute impediment to rail-trail development. Rather, as the district court held, in this case the question is whether an obstacle was created by the manner in which the bond obligation was enforced. In that respect, the other case on which Kanza relies — Nebraska Trails — is somewhat more comparable.
In Nebraska Trails, organizations interested in fostering recreational trails sought review of the decision of STB establishing a fee of $150 on requests to use or acquire proposed-to-be-abandoned railroad rights-of-way for interim recreational trail use. The trail use condition filing fee was promulgated by the STB in accordance with the informal rulemaking procedures of § 553 of the federal Administrative Procedure Act. See 5 U.S.C. § 553 (2006).
In asserting numerous fairness and public policy arguments, the organizations argued that requiring a fee would discourage parties from requesting interim recreational trail use. Without any elaboration on the subject, the Eighth Circuit Court of Appeals stated:
“The STB has addressed adequately petitioners’ public policy concerns that imposition of the fee will discourage parties from requesting trail use conditions by lowering the fee to $150 from die proposed $650 and by noting the availability of a fee waiver under procedures provided in 49 C.F.R. § 1002.2(e) (1996).” Nebraska Trails, 120 F.3d at 907.
The Eighth Circuit ultimately concluded that the fee imposed by the STB on parties filing interim recreational trail use requests was not “ ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ [Citation omitted.]” Nebraska Trails, 120 F.3d at 908-09.
Kanza argues that the STB’s reduction of the application fee from $650 to $150 in Nebraska Trails “established a standard of what is considered burdensome” and a hindrance to the development of rail-trails. In this regard, Kanza also cites the decision of NARPD v. STB, 158 F.3d 135, 139 (D.C. Cir. 1998), for the proposition that the STB has rejected regulations that would be “ex pensive and burdensome.” Kanza asserts that the STB’s attempt to avoid burdensome regulations and the Nebraska Trails rationale establishes an “objective” standard that shows the amount of maintenance costs in the present case — $9,040—is burdensome and an obstacle to the objectives of Congress.
The comparison to the $150 at issue in Nebraska Trails is tenuous, as is reflected in a footnote in which the Eighth Circuit noted: “[T]he $150 fee represents only a small portion of the funds a trail use requester must amass in assuming financial responsibility for a railroad right-of-way.” Nebraska Trails, 120 F.3d at 907 n.4. The implication of this conclusion, which is based on findings made by the STB when setting its fee schedule, is that a trail operator will incur expenses; there is no showing of an expectation that trail development will be without cost. Further, the STB did not make findings regarding the expenses that are anticipated or a threshold where the total expenses would be deemed burdensome. The full STB discussion implies there will be variances. See STB Ex Parte No. 542, 1 STB 179, 1996 WL 455536, at *7-9 (1996). Finally, we stress the reference to the fee being only a “small” portion of the total amount a rail-trail requester must amass, implying an expectation that the total will not be comparable to $150 as Kanza implies.
Consequently, we conclude these rulings do not support Kanza’s position that a bond requirement and the setting of a bond amount at $9,040 create a conflict with the Trails Act. First, the KRTA’s requirement that a bond or escrow account be available to assure fulfillment of a trail operator’s statutory duties is related to the legitimate regulation of the use of the rail-trails and are an appropriate exercise of the state’s authority to control safety, land use, and zoning related to rail-trails, an authority that is not expressly or impliedly preempted by the Trails Act. Second, while there could be circumstances where the state regulation and the establishment of a bond amount would be so onerous that it would conflict with the Trails Act, that situation is not presented in this case. The district court’s factual findings in this regard are supported by substantial competent evidence. See Hodges v. Johnson, 288 Kan. 56, 65, 199 P.3d 1251 (2009) (appellate court reviews findings of fact to determine if supported by substantial competent evidence). Under the circumstances of this case, the requirement does not preclude the interim trail use or the ability to reactivate rail service in the future and, therefore, does not stand as an obstacle to accomplishing the objectives of the Trails Act.
C. Is the KRTA Preempted Because It Violates the Commerce Clause?
As previously noted, Kanza also asserts a Commerce Clause argument and blends it with the preemption argument. See U.S. Const, art. I, § 8, cl. 3. It argues that a state can only exercise its police powers in a nondiscriminatory manner and in a manner that does not offend the Commerce Clause. In making this argument it relies on the following passage from an STB decision:
“Nothing in our Trails Act rules or procedures is intended to usuip the right of state or local entities to impose appropriate safety, land use, and zoning regulation on trails so long as they are not applied in a discriminatory manner or in such a manner as to preclude the interim trail use or the ability to reactivate rail service in the future.” (Emphasis added.) Central Kansas Railway, L.L. C. — Abandonment Exemption — In Marion and McPherson Counties, KS, STB Docket No. AB-406 (Sub-No. 6X), at 5 n.9 (STB served May 8, 2001).
It is not clear whether the STB was addressing the federal Supremacy Clause or the Commerce Clause when discussing the prohibition against discriminatory application of state regulations. For our purposes we need not sort out the doctrinal basis of the STB’s reasoning because Kanza merely uses the passage to launch a Commerce Clause argument, which it supports by citing In re Tax Appeal of CIG Field Services Co., 279 Kan. 857, 112 P.3d 138 (2005). CIG did not discuss the Supremacy Clause or preemption; rather, its analysis focused solely on the dormant Commerce Clause.
1. Standard of Review/Framework of Dormant Commerce Clause Analysis
In CIG, this court explained that the issue of whether a statute is constitutional is one of law, and our scope of review on issues of law is unlimited. CIG, 279 Kan. at 866-67. We further explained that historically the Commerce Clause has been interpreted
“ ‘ “not only as authorization for congressional action, but also, even in the absence of a conflicting federal statute, as a restriction on permissible state regulation.” [Citation omitted.] This restrictive aspect has been referred to as the “dormant” Commerce Clause. The dormant Commerce Clause prohibits states, unless authorized by Congress, from “attempting to advance their own commercial interests by curtailing the movement of articles of commerce, either into or out of the state.” [Citation omitted.]’ Water District No. 1 v. Mission Hills Country Club, 265 Kan. 355, 365-66, 960 P.2d 239 (1998).” CIG, 279 Kan. at 867.
The CIG decision then discussed the basic framework of the dormant Commerce Clause analysis that applied in that case, which dealt with the constitutionality of a Kansas property tax statute that differentiated between intracounty natural gas gathering systems and interstate and intercounty systems. Because of the tax issue that was present in that case, the court applied the test stated by the United States Supreme Court in Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279, 97 S. Ct. 1076, 51 L. Ed. 2d 326 (1977). That test is unique to cases dealing with taxes, and several prongs of the Complete Auto test have no application to this case, i.e., that the tax be applied to an activity with a substantial nexus to the state, the tax be fairly apportioned, and the tax be related to services provided in the state. The third prong of the Complete Auto test, however, is common to other strands of a dormant Commerce Clause analysis. That prong, which is the focus of Kanza’s argument, requires that the tax not discriminate against interstate commerce. CIG, 279 Kan. at 870 (citing Complete Auto, 430 U.S. at 279).
The discrimination test was more recently discussed by the United States Supreme Court in Department of Revenue of Kentucky v. Davis, 553 U.S. 328, 338, 128 S. Ct. 1801, 170 L. Ed. 2d 685 (2008). In that decision, the Court explained that alleged violations of the dormant Commerce Clause are subject to a two-step inquiry. First, the court asks whether the law discriminates on its face against interstate commerce. “A discriminatory law is ‘virtually per se invalid,’ [citations omitted] and will survive only if it ‘advances a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives.’ [Citations omitted.]” Davis, 553 U.S. at 338.
The second step applies if the law does not discriminate for a forbidden purpose. In this step, the court engages in a balancing test as set forth in Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S. Ct. 844, 25 L. Ed. 2d 174 (1970). Davis, 553 U.S. at 338-39. Here, Kanza does not cite Pike or argue for Pike scrutiny. Nor does Kanza raise any other strand of the dormant Commerce Clause analysis, such as the implications arising because the State of Kansas or local units of government are market participants operating competing recreational trails. See Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 813-14, 96 S. Ct. 2488, 49 L. Ed. 2d 220 (1976). Issues not briefed by an appellant are deemed waived and abandoned. Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 395, 204 P.3d 562 (2009). Consequently, we will not address these other strands of analysis or the Pike test, and our analysis will be limited to the first step of the analysis, i.e., whether the law is discriminatory in a manner prohibited by the dormant Commerce Clause.
As discussed in CIG, the threshold consideration is whether a state statute differentiates between similarly situated entities. Generally, entities are similarly situated if they serve the same market. The parties agree that there are trail operators in the same market who are not covered by the KRTA. The next consideration is whether the regulatory measures discriminate against out-of-state competitors in that market. CIG, 279 Kan. at 867-68. This discrimination can be found (1) from the face of a state law; (2) from the purposes of those enacting the law, i.e., a discriminatory intent, or (3) from its effect. CIG, 279 Kan. at 871 (citing Amerada Hess Corp. v. N.J. Taxation Div., 490 U.S. 66, 75, 109 S. Ct. 1617, 104 L. Ed. 2d 58 [1989]). Kanza argues that the KRTA discriminates in each of the three ways.
a. Facial Discrimination
First, Kanza argues there is facial discrimination because the KRTA’s definition of “recreational trail” includes only those that are located in railbanked rights-of-way under 16 U.S.C. § 1247(d). Nevertheless, just because there is a differentiation — discrimination, if you will — does not mean there is discrimination that violates the dormant Commerce Clause. “In this context, ‘ “discrimination” simply means differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter.’ [Citations omitted.]” United Haulers Assn., Inc. v. Oneida-Herkimer Solid Waste Management Authority, 550 U.S. 330, 338, 127 S. Ct. 1786, 167 L. Ed. 2d 655 (2007); see CIG, 279 Kan. at 871. The focus on whether out-of-state competitors are burdened is “driven by concern about ‘economic protectionism — that is, regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors.’ [Citation omitted.] The point is to ‘effectuat[e] the Framers’ purpose to “prevent a State from retreating into . . . economic isolation [citations omitted] ____” Davis, 553 U.S. at 337-38.
Miami County argues that Kanza, which is a not-for-profit Kansas corporation, cannot meet this threshold test for several reasons. First, it argues that the rail line at issue here is totally in-state. This may be true, but we cannot verify this on the record before us because we do not have information regarding the full scope of Kanza’s operation or information regarding whether this rail-trail connects to other recreational trails and eventually to an out-of-state recreational trail. Our review is hampered because Miami County did not ask the district court to make findings or object to the lack of findings regarding this question. A litigant must ensure the findings and conclusions by the district court are sufficient to support appellate argument, by filing a motion invoking the court’s duty under Supreme Court Rule 165 (2010 Kan. Ct. Rule Annot. 242), if necessary. State v. Edwards, 290 Kan. 330, Syl. ¶ 5, 226 P.3d 1285 (2010). Second, Miami County argues that Kanza has not shown discrimination against out-of-state competitors. It points out that Kanza’s argument regarding the differentiation between rail-trails and other trails has nothing to do with creating an economic benefit for in-state competitors that burdens out-of-state competitors. In other words, the differentiation is not based on the market that is served — interstate and in-state trail operators are treated the same if they operate a rail-trail. Similarly, interstate and in-state trail operators who operate other categories of recreational trails, i.e., those not located in railbanked rights-of-way, are treated the same, and there is no facial economic protectionism for in-state competitors.
Kanza presents a multifaceted reply. It first argues the KRTA discriminates against interstate commerce because it burdens rail-trails, and rail-trails impact interstate commerce. See Preseault v. ICC, 494 U.S. 1, 110 S. Ct. 914, 108 L. Ed. 2d 1 (1990). Kanzas argument seems to suggest that the only type of recreational trail impacting interstate commerce is one that is located in a railbanked right-of-way. Yet, the KRTA’s legislative history, which is a part of the record of this case and can appropriately be considered by us (see K.S.A. 60-409[c]), includes testimony regarding (1) the significant economic impact of recreational trails that preexisted the enactment of the KRTA and which were not then and are not now covered by the statute and (2) the impact of current and future plans for interstate rail-trails.
In addition, Kanza’s argument appears to suggest that the Commerce Clause prohibits all discriminatory treatment of competitors in a market that impacts interstate commerce, even if the discrimination does not draw a distinction between in-state and out-of-state competitors. This argument ignores the purpose and history of the dormant Commerce Clause. Two points are relevant. First, mere impact on interstate commerce is not the litmus test. It is recognized that when Congress does not preempt state regulation in an area that impacts interstate commerce, the states will have some impact on interstate commerce. See Northwest Cent. Pipeline v. Kan. Corp. Comm’n, 489 U.S. 493, 524, 109 S. Ct. 1262, 103 L. Ed. 2d 509 (1989) (recognizing that with respect to “reservation to the States” of regulation over gas production rates, Congress cannot but have contemplated that state oversight would affect interstate commerce). Second, the dormant Commerce Clause does not prohibit all discrimination, it prohibits “regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors. [Citations omitted.]” New Energy Co. of Indiana v. Limbach, 486 U.S. 269, 273, 108 S. Ct. 1803, 100 L. Ed. 2d 302 (1988). As applied in this case, the fact a rail- trail impacts interstate commerce and is treated differently than another category of recreational trail does not violate the dormant Commerce Clause if the latter trail also impacts interstate commerce and the differentiation does not provide an economic advantage to in-state competitors and does not burden out-of-state competitors.
In that regard, the differentiation between rail-trails and other categories of recreational trails that is made in the KRTA has a different type of impact than did the tax statute at issue in CIG, and, as a result, that decision does not support Kanza’s argument. In CIG, a statutory definition created a differentiation by exempting intracounty natural gas gathering systems. The impact was that these intracounty systems received a tax benefit not available to interstate and intercounty systems. The argument that there was a Commerce Clause violation focused on the favorable treatment of intracounty systems and the unfavorable treatment of interstate systems. This distinction created a classic situation of in-state benefit versus out-of-state burden. Nevertheless, in response, it was argued that the tax burden also fell on in-state competitors, i.e., intercounty systems. Because intercounty systems were treated the same as interstate systems, it was argued that the tax did not discriminate against interstate competitors. We rejected the argument that this insulated the discrimination against out-of-state competitors from the dormant Commerce Clause, citing Dean Milk Co. v. Madison, 340 U.S. 349, 354, 71 S. Ct. 295, 95 L. Ed. 329 (1951). CIG, 279 Kan. at 873-74.
In Dean Milk the United States Supreme Court considered a Madison, Wisconsin, ordinance that barred the sale of milk not processed within 5 miles of the city. Even though the ordinance impacted Wisconsin producers who were outside the 5-mile radius the same as an out-of-state producer, the Court found a Commerce Clause violation. The Court noted the ordinance “erect[ed] an economic barrier protecting a major local industry against competition from without the State.” Dean Milk Co., 340 U.S. at 354; cf. Brimmer v. Rebman, 138 U.S. 78, 83, 11 S. Ct. 213, 34 L. Ed. 862 (1891) (“ ‘a burden imposed by a state upon interstate commerce is not to be sustained simply because the statute imposing it applies alike to the people of all the states, including the people of the state enacting such statute5 ”). Applying these cases, we concluded in CIG that the tax statute violated the dormant Commerce Clause even though “it is imperfectly or incompletely” facially discriminatory. CIG, 279 Kan. at 873.
Kanza does not cite to any provision of the KRTA that differentiates between in-state and out-of-state competitors and, therefore, does not construct a similar argument to that considered in CIG. We note, however, that there is a distinction arising from the exemption of governmental bodies, which are inherently in-state, from the requirement to post a bond. As previously noted, by not briefing or raising an argument regarding the impact of government competitors, Kanza has waived the argument. See Kingsley, 288 Kan. at 395. Additionally, there is a clear nondiscriminatory purpose in the bond requirement, specifically, to hold the taxpayers harmless. Requiring a bond to indemnify taxpayers serves no purpose when taxpayers are already footing the bill for a publically funded trail. In other words, government bodies are burdened as well. Furthermore, when we focus on the distinction made by Kanza — between rail-trails and other categories of recreational trails — we can find no economic discrimination in the KRTA between in-state and out-of state competitors. In other words, there is no economic protectionism evident on the face of the KRTA and nothing that shows that one type of competitor is “favored because they were local.” Davis, 553 U.S. at 341 n.9.
Hence, Kanza fails to establish facial discrimination. Accordingly, we conclude “there is no explicit discriminatory design” to the KRTA. Amerada Hess, 490 U.S. at 76.
b. Intent to Discriminate
But Kanza also argues that even if there is no facial discrimination, there is an intent to discriminate and a burden placed on interstate commerce in violation of the dormant Commerce Clause. The only evidence of the Kansas Legislature’s intent with regard to the KRTA is found in the language of the statute itself and the legislative history. As noted, the plain language does not suggest an intent to discriminate against out-of-state economic interests based on the distinction between rail-trails and other cat egories of recreational trails. Nor can we find such an intent reflected in the legislative history.
Kansas established recreational trail laws in 1996 by the passage of H.B. 2711. As originally proposed, H.B. 2711 placed conditions on all recreational trail developers and operators, whether public or private and whether or not on railbanked rights-of-way. Proponents of the bill — primarily Kansas Farm Bureau and the Kansas Livestock Association — articulated that such legislation would address concerns of adjacent landowners, protect their property interests, and protect the safety interests of individuals utilizing the trail without unduly burdening rail-to-trail development or operation. One proponent testified that similar concerns of adjacent landowners had been addressed when the Kansas Legislature enacted state laws directing the Kansas Department of Wildlife and Parks to meet certain conditions relating to the development and operation of other categories of recreational trails.
Opposition testimony presented at the hearings on H.B. 2711 came primarily from municipalities. Generally, these opponents sought local autonomy rather than state regulation. Some opponents also drew a distinction between a recreational trail built on a defined right-of-way with adjacent landowners, such as a rail-trail, and recreational trails built on public property with no immediately adjacent private landowners. In addition, the director of a city park department testified that his city had developed the first operational rail-trail; he asked the legislature not to pass the legislation because it would add to the cost of rail-trail development, which his community hoped to continue to do.
Ultimately, substitute H.B. 2711 (later K.S.A. 58-3211 et seq.) defined a recreational trail as a “trail created pursuant to subsection (d) of 16 U.S.C. [§] 1247 (1983).” K.S.A. 58-3211(b). While there is no clear statement of intent, the passage of the legislation indicates the legislature rejected the view that no legislation should be passed, even though a local competitor — a city in Kansas — suggested the legislation would burden its future ability to develop a rail-trail. See K.S.A. 58-3211(c) (“[Responsible party” defined to include governmental entities). This history is contrary to a suggestion that there was an intent to protect in-state competitors. Rather, perhaps because of the distinctions drawn between rail-trails and other categories of recreational trails, the legislature chose to exempt trails developed on land other than railroad rights-of-way.
In sum, Kanza has presented no evidence that the KRTA was “motivated by an intent to confer a benefit upon local industry not granted to out-of-state industry.” Amerada Hess, 490 U.S. at 76.
c. Discriminatory Effect
As for the third factor in Amerada Hess — the effect of unduly burdening interstate commerce — Kanza argues that this factor is present in that the KRTA creates economic interests which are beneficial to recreational trails created outside the rails-to-trails context and are burdensome to rail-trails created pursuant to 16 U.S.C. § 1247(d) (2010).
Specifically, Kanza argues there is an undue burden on rail-trails in that, compared to the general Kansas fence laws found at K.S.A. 29-101 et seq., the KRTA, specifically K.S.A. 58-3212, places more rigorous fencing requirements on the operator of a rail-trail. In the district court proceeding, the court determined that K.S.A. 58-3212 is a more specific statute and, therefore, controls over the more general fencing statutes, K.S.A. 29-101 et seq. Kanza does not advance any arguments on appeal relating to the issue of whether the fencing requirements of the KRTA control over the fencing requirements of the general Kansas fence laws, K.S.A. 29-101 et seq. Consequently, that issue has been abandoned on appeal. See Kingsley, 288 Kan. at 395 (issues not briefed are deemed abandoned). But Kanza attempts to morph its argument into a Commerce Clause discrimination claim by complaining about the costs associated with the fencing responsibilities placed by the KRTA on the party responsible for rail-trail management. Likewise, Kanza complains that the other costs associated with its managerial duties under the KRTA — such as costs for weed control, litter control, and signage — are discriminatory because the KRTA only applies to this specific category of recreational trail in Kansas.
None of Kanza’s arguments regarding undue burden are persuasive. As earlier noted, representatives of Kansas communities— in-state competitors — voiced identical complaints to the legislature. Once again, as with all of Kanza’s Commerce Clause discrimination arguments, the argument fails because the KRTA does not provide a benefit to local competitors or burden interstate entities in ways it does not burden local, nonpublic competitors.
Issue 2: Equal Protection
Next, Kanza argues that the KRTA violates the Equal Protection Clauses of the federal and state constitutions. This contention lacks merit.
A. Standard of Review/Equal Protection Principles
The Fourteenth Amendment to the United States Constitution guarantees equal protection of the laws, and the Kansas Constitution Rill of Rights § 1 provides virtually the same protection. See State v. Limon, 280 Kan. 275, 283, 122 P.2d 22 (2005). When the constitutionality of a statute is challenged on the basis of an equal protection violation, courts must construe the statute as constitutional if there is any reasonable way to do so. Consequently, in reviewing a statute we presume that it is constitutional and resolve all doubts in favor of its validity. An appellate court conducts unlimited review of this question because it presents a question of law. See State v. Gaudina, 284 Kan. 354, 372, 160 P.3d 854 (2007); Injured Workers of Kansas v. Franklin, 262 Kan. 840, 844, 942 P.2d 591 (1997).
The first step of an equal protection analysis is to determine the nature of the legislative classifications and whether the classifications result in arguably indistinguishable classes of individuals being treated differently. Only if there is differing treatment of similarly situated individuals are the federal and Kansas Equal Protection Clauses implicated. See State v. Salas, 289 Kan. 245, 248, 210 P.3d 635 (2009); Hodges v. Johnson, 288 Kan. 56, 72, 199 P.3d 1251 (2009); see also Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985) (guiding principle of equal protection analysis is that similarly situated individuals should be treated alike). Here, as with the previous issue, the parties agree that the KRTA treats arguably indis tinguishable classes, i.e., parties responsible for recreational trails, differently by only placing requirements on rail-trails created pursuant to 16 U.S.C. § 1247(d).
After determining the nature of the legislative classifications, a court examines the rights which are affected by the classifications. The nature of the rights dictates the level of scrutiny to be applied. Salas, 289 Kan. at 248-49; Hodges, 288 Kan. at 72-73. Federal and Kansas courts have long delineated three levels of scrutiny in equal protection cases: (1) the rational basis standard to determine whether a statutory classification bears some rational relationship to a valid legislative purpose; (2) the heightened or intermediate scrutiny standard to determine whether a statutory classification substantially furthers a legitimate legislative purpose; and (3) the strict scrutiny standard to determine whether a statutory classification is necessary to serve some compelling state interest. Limon, 280 Kan. at 283-84; see Grutter v. Bollinger, 539 U.S. 306, 326, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (2003) (strict scrutiny); Mississippi University for Women v. Hogan, 458 U.S. 718, 723-24, 102 S. Ct. 3331, 73 L. Ed. 2d 1090 (1982) (heightened scrutiny); Reynolds v. Sims, 377 U.S. 533, 562, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964) (rational basis). In this case, Kanza has not argued that either the heightened scrutiny or strict scrutiny standard should be applied; it accepts the application of the rational basis standard.
The final step of the analysis requires determining whether the relationship between the classifications and the object desired to be obtained withstands the applicable level of scrutiny. Limon, 280 Kan. at 283-84. Where, as in this case, a party attacks a statute as facially unconstitutional under the Equal Protection Clause for failing to satisfy the rational basis standard, the party must demonstrate that “no set of circumstances exist” that survive constitutional muster. Injured Workers of Kansas, 262 Kan. at 850. For this reason, it is not enough to “[sjimply point[ ] out that [a statute] might not be rationally related to the state objectives sought under one set of facts.” Injured Workers of Kansas, 262 Kan. at 851. Instead, a party “asserting the unconstitutionahty of a statute under the rational basis standard *ha[s] the burden “to negative every conceivable basis which might support [the classification].” ’ [Citations omitted.]” Peden v. Kansas Dept. of Revenue, 261 Kan. 239, 253, 930 P.2d 1 (1996), cert. denied 520 U.S. 1229 (1997); see Barrett v. U.S.D. No. 259, 272 Kan. 250, Syl. ¶ 2, 32 P.3d 1156 (2001) (“When a statute is attacked on equal protection grounds, the general rule is that the statute is presumed constitutional, and the burden is on the party attacking the statute to prove otherwise.”).
The district court pointed out that Kanza could cite to no other jurisdiction in which an appellate court has held that a state rails-to-trails statutory scheme violated equal protection rights. Further, the court found there is a rational basis for the requirements placed on the parties responsible for rail-trails: “[T]he responsibilities imposed upon [Kanza] pursuant to the KRTA in this action have a rational basis in preserving and promoting a safe trail for users, while protecting the private property rights of adjacent landowners.”
Kanza is dissatisfied with the district court’s finding and argues that the court’s finding lacks an analysis of how that rational basis is distinguishable from recreational trails established outside of the rails-to-trails context. Kanza argues that there is no rational basis for differentiating between rail-trails and other categories of recreational trails. Further, Kanza turns again to the legislative history of the KRTA and argues that, based on the fact that K.S.A. 58-3215 as it existed at the time this action was filed permitted a city or county to “institute procedures for recourse against the responsible party pursuant to 16 U.S.C. 1247 (1983) and 49 C.F.R. 1152.29 (1986) upon the failure of the responsible party to comply with the provisions of this act,” K.S.A. 58-3215, the Kansas Legislature probably enacted the KRTA to protect Kansans’ reversionary property rights in the railbanked right-of-way. Kanza reasons that if interim recreational trail use permits are revoked by the STB for noncompliance with state trail requirements, the railroad right-of-way may be deemed abandoned and the abandoned railroad right-of-way then reverts back to the owner of that property. According to Kanza, the legislature placed “oppressively burdensome responsibilities” on interim trail operators in order to discourage railbanking and to promote the reversion of the railroad right-of-way to the landowner. The protection of reversionary property interests, argues Kanza, is not a proper rational basis because it contravenes Congress’ intent to promote railbanking. Kanza points this court to Jost v. Surface Transp. Bd., 194 F.3d 79 (D.C. Cir. 1999), for support.
However, we need look no further than the legislative history to find reasons for distinguishing rail-trails from other categories of recreational trails. Miami County points to references in the legislative history testimony indicating that numerous recreational trails had already been established outside the rails-to-trails context at the time the KRTA was enacted and were already part of maintenance programs in conjunction with local agencies. In addition, as previously discussed, those who testified discussed the buffer that could be and often is provided between other types of recreational trails and adjacent landowners as compared to railroad rights-of-way that are often narrow corridors. This distinction could justify more stringent regulation of matters that could develop into a public nuisance to adjoining landowners such as litter, the use of vehicles, or trespassing.
Further, there is no guidance in the federal provisions regarding the upkeep of rail-trails. As observed by the STB, “the Trails Act does not require the trail to be ‘developed’ in any particular way. There can be differing types or levels of trail use, and this agency has never become involved in determining the type or level of trail for a specific right-of-way.” Central Kansas Railway, L.L.C.— Abandonment Exemption — In Marion and McPherson Counties, KS, STB Docket No. AB-406 (Sub-No. 6X), at 5 n.10 (STB served May 8, 2001). This lack of federal guidance in the area of safety and land use provides a rational basis for imposing requirements on parties responsible for rail-trails created pursuant to 16 U.S.C. § 1247(d) because, as opposed to other categories of recreational trails where a right-of-way does not need to be preserved for any particular future use, rail-trails are to be maintained in a manner that will facilitate the ability to reactivate rail service in the future. Preseault, 494 U.S. at 18; 16 U.S.C. § 1247(d); 49 C.F.R. § 1152.29(a) (2009). The KRTA imposes this requirement by, for example, requiring maintenance of bridges, culverts, roadway in tersections, and crossings on the trail. See K.S.A. 58-3212(a)(ll)(A).
The district court found that there is no evidence suggesting that the KRTA is intended to accomplish anything other than the purposes of the federal Trails Act — in short, preservation of railroad rights-of-way and encouragement of interim recreational trail development. We agree. The district court correctly determined that Kanza failed to show that the KRTA abridges constitutionally protected equal protection rights.
Issue 3: Jurisdiction to Set the Bond
The final contention raised by Kanza is that the district court did not have jurisdiction to set the amount of bond or escrow account required under K.S.A. 58-3212(b) if the parties fail to agree on the amount of the bond. We hold that the district court did have jurisdiction.
A. Preservation of Issue and Parties’ Arguments
Kanza only raised a cursory question about jurisdiction before the district court, placing the following short statement in its motion to dismiss: “The parties are at a stand-off with each other, and under the KRTA this Court may not even have jurisdiction to decide what a reasonable escrow amount is, as the law is silent about who should make that decision in the event of a permanent difference of opinion.”
Regardless, to the extent subject matter jurisdiction is implied, such a question may be raised at any time, including for the first time on appeal or even on an appellate court’s own motion. Padron v. Lopez, 289 Kan. 1089, 1103, 220 P.3d 345 (2009); Shipe v. Public Wholesale Water Supply Dist. No. 25, 289 Kan. 160, 166, 210 P.3d 105 (2009).
In raising the jurisdictional challenge on appeal, Kanza attacks the district court’s jurisdiction from multiple angles. First, Kanza takes a “plain reading” approach. It argues that under a plain reading of K.S.A. 58-3215, until the parties meet the “amount agreed upon” criteria of K.S.A. 58-3212(b), a proceeding seeking recourse is “unavailable” to Miami County; therefore, the district court lacked jurisdiction to order the amount of the bond or escrow account. Second, Kanza argues that a writ of mandamus under K.S.A. 60-801 was “unavailable” to Miami County because the parties had not agreed upon the amount of the bond or escrow account. Kanza asserts that a mandamus proceeding would only be available to enforce an agreement between the parties as to the amount of the bond or escrow account. Third, Kanza argues that Miami County lacked “standing” to bring this action to compel Kanza’s posting of a bond or establishing an escrow account because Miami County has not been “aggrieved,” as provided in K.S.A. 2010 Supp. 58-3215. (A few months after this action was filed, an amendment to K.S.A. 58-3215 became effective. Although there are differences in the two versions, both versions provide that any county “aggrieved” may bring an action to enforce the KRTA. L. 2006, ch. 178, sec. 2 [now codified at K.S.A. 2010 Supp. 58-3215]. Kanza does not rely on the portions of K.S.A. 58-3215 that differ pre- and post-amendment to argue that the district court lacked jurisdiction.)
B. Standard of Review and the Statute
This issue involves statutory interpretation and the jurisdiction of the district court. Interpretation of a statute is a question of law over which an appellate court has unlimited review. Double M Constr. v. Kansas Corporation Comm’n, 288 Kan. 268, 271, 202 P.3d 7 (2009). Also, jurisdictional questions are questions of law over which appellate review is unlimited. Harsch v. Miller, 288 Kan. 280, 286, 200 P.3d 467 (2009).
When interpreting a statute, an appellate court must first determine the legislature’s intent by reviewing the statutory language used and giving ordinaiy words their ordinary meaning. Double M Constr., 288 Kan. at 271. “ ‘[O]nly if the statute’s language or text is unclear or ambiguous [do] we move to the next analytical step, applying canons of construction or relying on legislative histoiy construing the statute to effect the legislature’s intent.’ ” Double M Constr., 288 Kan. at 271-72 (quoting In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 [2007], cert. denied 555 U.S. 937, 129 S. Ct. 36 [2008]).
We are called on to apply these rules to the following provisions from the KRTA;
“(b) If the responsible party is not a governmental entity, the responsible party shall file with the county clerk of each county where a portion of the recreational trail is or will be located a bond or proof of an escrow account in a Kansas financial institution, as defined by KS.A. 16-117 and amendments thereto, payable to the county. The bond or proof of an escrow account shall be filed at the time of transfer of the deed to the responsible party and annually thereafter. The bond or escrow account shall be conditioned on the responsible party’s performance, and shall be in an amount agreed upon between the responsible party and the county commission as sufficient to fully cover the annual costs, of:
“(1) Weed control along the trail, as required by subsection (a)(1);
“(2) litter control along the trail, as required by subsection (a)(4);
“(3) maintenance of the trail in a condition that does not create a fire hazard, as required by subsection (a)(5);
“(4) installation and maintenance of fencing between the trail and adjacent property within the county, as required by subsection (a)(10); and
“(5) installation and maintenance of signs along the trail, as required by subsections (a)(3), (a)(4) and (a)(ll)(C).
“(d) The provisions of this section shall apply to all recreational trails, regardless of when approval to enter into negotiations for interim trail use is or was received from the appropriate federal agency.” (Emphasis added.) K.S.A. 58-3212(b), (d).
C. Construction
Kanza takes a circuitous route to conclude that the district court lacked jurisdiction to set the amount of the required bond. Kanza contends that under the plain language of the statutes, it has not “fail[ed] to comply” with tire duties of the KRTA under K.S.A. 58-3212(b) until it fails to post a bond for “an amount agreed upon” between the parties. See K.S.A. 2010 Supp. 58-3215. Failure to agree to an amount, according to Kanza, does not equate to a failure to comply.
Yet another portion of the provision seems equally as clear when read in isolation. It states that “the responsible party shall file with the county clerk ... a bond or proof of an escrow account.” K.S.A. 58-3212(b). Nevertheless, the statute is ambiguous because of a gap in the statute — it does not define what bond shall be filed if agreement is not reached.
The district court determined the legislature’s intent was to allow a city or county to use a judicial remedy to enforce the requirement that a bond be posted or an escrow account established. The district court observed that the federal law — 16 U.S.C. § 1247 (2010) and regulations promulgated pursuant to the law, specifically 49 C.F.R. § 1152.29 — do not impose any guidelines for rail-trail maintenance. And our Kansas statute is silent regarding the remedy when parties are unable to agree upon the amount of the bond or escrow account. The district court stated:
“This Court cannot help but believe that the legislative intent behind the KRTA was for such issues to be resolved by courts of local jurisdiction. In any event, if the legislature did not intend local courts to determine such issues, the result would be a stalemate in the development of trails over abandoned railway corridors. Such a result would be contrary to the dual purpose of the [Trails Act] as stated in [Friends of the East Lake Sam. Trail v. City of Sammamish, 361 F. Supp. 2d 1260, n.20 (W.D. Wash. 2005)]: (1) to preserve established railroad rights-of-way for future reactivation of rail service, to protect rail transportation corridors, and to encourage energy efficient transportation use, and (2) to encourage the development of additional trails and assist recreational users by providing opportunities for trail use on an interim basis. [Citation omitted.] The Court must presume that the statutory intent was consistent with Congressional intent.”
In addition to avoiding “stalemate” conditions, Miami County argues that if this court adopts Kanza’s interpretation of the KRTA, such a result would be inconsistent with another rule of statutory construction, the presumption that the legislature does not intend to enact useless or meaningless legislation. See In re Adoption of G.L.V., 286 Kan. 1034, 1041, 190 P.3d 245 (2008). We agree.
As a general rule, courts should construe statutes to avoid unreasonable results and should presume that the legislature does not intend to enact useless or meaningless legislation. Hawley v. Kansas Dept. of Agriculture, 281 Kan. 603, 631, 132 P.3d 870 (2006). Courts ascertain the legislature’s intent behind a particular statutory provision See State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. 763, Syl. ¶ 2, 69 P.3d 1087 (2003). Thus, in cases involving statutory construction, “courts are not permitted to consider only a certain isolated part or parts of an act, but are required to consider and construe together all parts thereof in pari materia.” Kansas Commission on Civil Rights v. Howard, 218 Kan. 248, Syl. ¶ 2, 544 P.2d 791 (1975).
“from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. [Citation omitted.]” In re Marriage of Ross, 245 Kan. 591, 594, 783 P.2d 331 (1989).
Taking into consideration the entire KRTA, we observe that the legislature intended to establish duties of a responsible party that develops, operates, or maintains a rail-trail, including the requirement for a nongovernmental responsible party to post a bond or establish an escrow account to ensure that annual costs, enumerated in K.S.A. 58-3212, are covered. Under Kanza’s interpretation, a trail operator could defeat this intent by refusing to agree to any bond amount. This would leave taxpayers at risk and without the bond that is designed to indemnify taxpayers, such as those in Miami County, from having to pay for damages that might result from the failure of an operator, such as Kanza, to perform its duties. Rather than construe the bond and escrow provision in a way that would defeat the provision, we conclude Miami County has the right to demand compliance with the statute. Kanza’s plain language argument fails.
D. Writ of Mandamus
Kanza makes virtually identical arguments to contend that a writ of mandamus under K.S.A. 60-801 was “unavailable” to Miami County because the parties had not agreed upon the amount of the bond or escrow account. Kanza asserts that a mandamus proceeding would only be available to enforce an agreement between the parties as to the amount of the bond or escrow account.
K.S.A. 60-801 sets forth a litigant’s right to the remedy of mandamus. It states: “Mandamus is a proceeding to compel some inferior court, tribunal, board, or some corporation or person to perform a specified duty, which duty results from the office, trust, or official station of the party to whom the order is directed, or from operation of law.” (Emphasis added.) Kanza makes no argument about the statute’s applicability other than to suggest that it had not breached a duty because there was no bond agreement in place.
This argument is contrary to the mandatory language in K.S.A. 58-3212(b), i.e., a responsible party “shall file” a bond or proof of escrow. This language clearly places upon a nongovernmental responsible party the requirement, i.e., duty, to file a bond. The statute’s ambiguity regarding the amount of bond to be posted in lieu of an agreement does not alter this duty. Further, because of this ambiguity, it was appropriate for Miami County to seek a court ruling because “ ‘[m]andamus [is] an appropriate avenue to obtain an authoritative interpretation of the law for the guidance of public officials in their administration of public business.’ ” State ex rel. Morrison v. Sebelius, 285 Kan. 875, 907-08, 179 P.3d 366 (2008) (quoting Alpha Med. Clinic v. Anderson, 280 Kan. 903, 916, 128 P.3d 364 [2006]).
E. Standing
Kanza also argues that Miami County lacked “standing” to bring an action to compel Kanza to post a bond or establish an escrow account because Miami County has not been “aggrieved.”
Standing is “a party’s right to make a legal claim or seek judicial enforcement of a duty or right.” Black’s Law Dictionary 1536 (9th ed. 2009). Under the traditional tests for standing, “a person must demonstrate that he or she suffered a cognizable injury and that there is a causal connection between the injury and the challenged conduct.” Board of Sumner County Comm’rs v. Bremby, 286 Kan. 745, 761, 189 P.3d 494 (2008).
Kanza states in its appellate brief that “[t]here is no evidence or finding that Miami County was ‘aggrieved,’ which may be interpreted to mean the equivalent of ‘standing.’ ” Kanza concedes, however, that its failure to enter into an agreement with Miami County regarding the amount of the bond/escrow account “may be sufficient.”
As observed by Miami County, Kanza essentially ignores the language of K.S.A. 58-3212, which establishes duties for a responsible party, including the posting of a bond with the county. Clearly, this bond was for the benefit of Miami County and its taxpayers. The failure to post the bond violated a statute designed to protect those interests, and in bringing an action in district court, Miami County was trying to enforce that statutory requirement. As such, K.S.A. 2010 Supp. 58-3215, which allows enforcement by a city or county “aggrieved” because of a failure to comply with the KRTA to take judicial action, granted Miami County standing. Kanza’s “standing” argument fails.
F. Amount of the Bond
In the alternative, Kanza briefly asserts, with no supporting authority, that even if the district court had jurisdiction, the amount of the bond/escrow account ordered by the district court was arbitrary.
“In evaluating the evidence to support the district court’s factual findings, an appellate court does not weigh conflicting evidence, evaluate witnesses’ credibility, or redetermine questions of fact.” Hodges v. Johnson, 288 Kan. 56, 65, 199 P.3d 1251 (2009); accord In re Estate of Hjersted, 285 Kan. 559, 571, 175 P.3d 810 (2008).
Kanza acknowledges that Miami County presented evidence to support the amount of the bond, and Kanza did not object to any of the plaintiff s evidence. Our review of the record shows that the evidence presented by Miami County was never controverted by Kanza. Before determining the amount of the bond to be posted by Kanza, the district court considered the file, the parties’ arguments, and the evidence presented to the court. The district court made extensive and clear findings regarding the computation of the bond amount, and there was substantial competent evidence to support the district court’s finding that Kanza must post a bond, or provide proof of escrow, in the amount of $9,040.
Affirmed.
Davis, C.J., not participating.
Leben, J., assigned.
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The opinion of the court was delivered by
Kingman, C. J.:
On the 8th day of May, 1866, the defendant in error, Walter Knight, gave a note to plaintiff in error for two thousand dollars payable in five years with ten per cent, interest, with the privilege of paying the note at an earlier period. At the same time Knight, together with his wife, executed a mortgage on real estate to Muzzy to secure the payment of the note, which mortgage stipulated that the interest should be paid annually, and in default of payment of any part, then that the mortgage might be foreclosed. No interest was paid, and the plaintiff after four years brought his action for four years’ interest and a foreclosure of the mortgage. The trial was by the court, and judgment was given for the defendants and against the plaintiff for costs.
The only question is whether the interest was payable annually on the sum of money for which the note and mortgage was given. If the note is alone to be considered as the evidence of the contract, then unquestionably the principal and interest are alike payable at the expiration of the five years. But the note and mortgage having been made at the same time, and in relation to the same subject, are a part of one transaction, and constitute one contract, and must be construed together as if they were parts of one instrument: Chick v. Willets, 2 Kas., 384; Round v. Donnell, 5 Kas., 54. Construing both as parts of one contract there is no great difficulty in giving to each and every part thereof full effect, and without any repugnance; for then it becomes an agreement to pay two thousand dollars in five years with ten per cent, interest which interest is payable annually. This stipulation in tbe-mortgage is as much a part of this contract as though it was written in ■the note, or across tbe face of it. Tbe principle is decided in tbe eases cited above, and is abundantly sustained by reason and authority. While such a conclusion is derived from tbe written contract, it is satisfactory to know that tbe interpretation put upon it by this court is tbe same put upon it by tbe parties, who of all others must have best understood tbe arrrangement made by themselves. Whether tbe testimony was admissible, if objected to, we need not decide, as it was admitted without objection. Our conclusion is reached, however, from tbe note and mortgage alone. This is tbe only question in tbe case we can decide. Tbe plaintiff in error asks that this court should direct tbe court below to enter a judgment for tbe plaintiff according to tbe prayer of bis petition. This would be improper, as there are other parties to tbe action who may have rights which tbe decision of tbe court below rendered it unnecessary to consider, and which are not disclosed in tbe record.
Tbe judgment is reversed with directions to proceed with tbe case in accordance with this opinion.
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The opinion of the court was delivered by
Valentine, J.:
Adolph Cohen as plaintiff brought his action in the court below against Simon Abeles on an account for goods sold and delivered. The admitted facts seem to be substantially as follows: M. Lauber was in failing circumstances as a merchant. H. W. Kartzenberg & Co. took possession of his stock of goods under a chattel mortgage to them, and closed his store. Lauber’s friends, among whom was the plaintiff, desired to help him. Abeles, at their request assumed the payment of his debts to Kartzenberg & Co., and Cohen and others gave an indemnity bond to Abeles. Abeles also took a bill of sale of said goods from Kartzenberg & Co., with the consent of Lauber, to himself. The store was then reopened. Lauber was placed in possession, and he transacted the business connected therewith in the name of “M. Lauber, salesman.” Lauber bought the goods for which Cohen sues Abeles. They were purchased for the purpose of keeping up said stock of goods, and were made a part thereof. Abeles afterwards took possession of said stock of goods under his bill of sale from Kartzenberg & Co., and had them sold at auction. He realized enough from the sale of the goods to pay all debts of Lauber for which he was liable, and had $152.37 left. Cohen then sued him for $139.98 and interest. Abeles then paid said $152.37 to Lauber, less certain attorney’s fees. The disputed facts seem to be substantially as follows: Whether said bill of sale was an absolute sale or chattel mortgage: Whether Abeles took possession of the goods himself when he received the bill of sale, and simply allowed Lanber to do the business connected therewith as his agent, or whether Lauber retook possession of the goods as his own or as mortgagor: Whether Abeles authorized Lauber to purchase goods from Cohen and others on his credit, and whether Cohen gave the credit to Lauber or to Abeles. The jury found generally for the plaintiff Cohen, and against the defendant Abeles, and assessed the damages at $139.98.
In the investigation of this case we shall follow the brief of counsel for plaintiff in error, (defendant below.) The first point that plaintiff in error makes is, “ That the court erred in charging the jury that no defense could arise out of the bond- of indemnity executed by Cohen and others to defendant.” The charge complained of is as follows: “ In regard to the bond spoken of as executed by plaintiff and others to defendant, inasmuch as defendant concedes that at the time of the commencement of this suit he had in his possession, over and ab'ove all that he paid out, and interest thereon, as the proceeds of this stock of goods, more than enough to pay the account of plaintiff, I charge you that no counter-claim nor set-off can arise out of it.” This instruction we think explains itself, and is correct for this case.
Second: Plaintiff in error claims that “The court erred in permitting Cohen to testify on the trial that he supposed all the time that the store belonged to Abeles, and ° that he was responsible for all goods received at that store.” This was competent evidence to show, in connection with other, (and it was given for that purpose,) that Cohen gave the credit to Abeles and not to Lauber; and it does not appear from the record that it was used for any other purpose.
Third: It is also claimed by plaintiff in error that “The court erred in refusing to "give the following instruction asked for by Abeles: ‘ That the mortgagee of personal property still in possession of the mortgagor is not responsi- \ o o *. ble for any purchases-or other indebtedness created by tbe mortgager concerning tbe mortgaged property.’ ” Tbis instruction was in substance given to tbe jury twice, and tbe court was not bound to give it to tbe jury tbe third time.
Fourth: Tbe plaintiff in error further claims that “Tbe court erred in refusing to give to tbe jury tbe instruction asked for below, ‘ That if tbe jury believe from tbe evidence that tbe plaintiff Cohen sold tbe goods to M. Lauber, and that the credit was given to k£. Lauber, and Lauber only, tbe defendant Abeles cannot be charged therefor except upon bis promise in writing to pay for them.’ ” Tbis instruction was in substance given to tbe jury once, and tbe court could not be required to give it a second time.
Fifth: “Plaintiff in error further claims that be was entitled to a new trial on tbe ground of surprise.” Tbe surprise which the defendant below desired a new tidal, was, that the witness Lauber testified differently on tbis trial from what be bad done on a former trial of tbe same case in a justice’s court. It is admitted that tbe same counsel tried tbe case in both courts, and it is probable also that tbe same witnesses attended and testified at both trials, for tbe defendant below in bis affidavit for a new trial does not pretend to say that such was not tbe case. In fact, from anything that appears in the affidavit twenty persons may have been present and beard Lauber’s testimony on both trials. Now tbe defendant does not seem to have been surprised until after tbe verdict, for if be bad been before that time, and during tbe trial in tbe court below, be could have easily impeached Lauber’s testimony (if it was really different as be claims it was on tbe two trials,) by tbe testimony of bis own counsel, tbe testimony of tbe plaintiff’s counsel, and tbe testimony of any person who was present and beard Lauber’s testimony at tbe two trials. But strange if be really was surprised be made no attempt to impeach Lauber’s testimony. We fail to perceive any “surprise wbicb ordinary prudence could not have guarded against.”
Sixth: Tbe plaintiff in error insists that tbe. court erred in not granting a new trial upon tbe ground that “ tbe verdict was not sustained by sufficient evidence, and was contrary to law.” Tbe evidence upon some of tbe points was conflicting, and possibly upon one or two of them the weight was with the defendant below; but still there was some evidence upon every point, and we think sufficient to sustain the verdict. But before we can reverse the order of the district court for the reason that the verdict was not sustained by sufficient evidence, it must appear clear that a great preponderance of the evidence was against the verdict or against some material fact necessary to uphold the verdict. In many cases where the district court ought to set aside the verdict and grant a new trial for the said reason the supreme court cannot do so because the supreme coiu-t cannot weigh the testimony as it appears on paper as well as the district court can who hears it as it falls from the lips of the witness. The verdict was certainly not against the law. The plaintiff in error says that “The evidence nowhere shows any authority whatever from Abeles to Lauber to purchase goods either express or implied, nor any promise of Abeles to pay this or any other debt of Lauber’s contracting.” Counsel must have forgotten Lauber’s testimony, and they must also have forgotten what the plaintiff in error states in his affidavit for a new trial that Lauber testified to.
Seventh: The plaintiff in error also claims that “the court erred in charging the jury at Cohen’s request that the owner and proprietor of a stock of goods kept for sale is prima facie responsible for .the debts created in the keeping up of the stock for the purpose of effecting a better sale of the entire stock.” This we think is a correct statement of the law upon this subject.
The judgment of the court below is affirmed.
Ejngman, O.- J., concurring.
Brewer, J., not sitting in the case. | [
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The opinion of the court was delivered by
Johnson, J.:
The State appeals the district court’s dismissal of the criminal complaint against Jamie A. Fredrick, which charged him with failure to register as required by the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq. The district court determined that the State had failed to establish that Fredrick was required to register in Kansas, because K.S.A. 22-4906(i) did not apply to the defendant. The case was transferred to this court pursuant to K.S.A. 20-3018(c), and this court has jurisdiction pursuant to K.S.A. 22-3602(b)(l).
Factual Overview
On May 12, 1994, Fredrick was adjudicated a delinquent in the state of Minnesota, based principally upon his commission of acts designated in that state as criminal sexual conduct. The allegation was that when he was age 15, he touched the vagina of a 5-year-old child. Pursuant to Minnesota law, Fredrick was required to register in that state as a “predatory offender” for a period of time, ending on June 19, 2018.
At some point in time, Fredrick moved to the state of Kansas, albeit the record is unclear as to when the move occurred. What we do know is that on December 29, 2008, when Fredrick was 30 years old, the Montgomery County Attorney charged Fredrick with a severity level 5 person felony upon a complaint that read as follows:
“That on or about the 7th day of November, 2008, in Montgomery County, Kansas, Jamie Alan Fredrick, a person subject to the requirements of the Kansas Offender Registration Act, K.S.A. 22-4901 et seq., then and there being did unlawfully and feloniously, as a person who is required to register, failed [sic] to report in person three times each year to the Montgomery sheriffs office, the county in which the person resides or is otherwise located, and failed to verify: (1) Whether the person still resides at the address last reported; (2) whether the person still attends the school or educational institution last reported; (3) whether the person is still employed at the place of employment last reported; and/or (4) whether the person’s vehicle registration information is the same as last reported, in violation of K.S.A. 22-4904(c). Failure to register as required by the Offender Registration Act.”
Subsequently, Fredrick filed a motion to dismiss the complaint, and the State responded. Following a hearing, the district court granted the motion and dismissed the complaint. In its memorandum opinion, filed May 15, 2009, the district court reviewed the provisions of our registration act, KORA, and determined that Fredrick was not required to register in this State.
Registration Requirement in Kansas
The State contends that because Fredrick fell within the KORA definition of “offender,” the district court erred in finding that Fredrick was not required to register in Kansas. Fredrick counters that the specific provision applicable to the facts of this case is found in K.S.A. 22-4906(i) and that provision only applies to persons who have been convicted of crimes, not to persons who have been adjudicated a juvenile offender.
A. Standard of Review
The parties agree that our review is unlimited. There appears to be two bases for applying that standard. First, in order to resolve the State’s claim, we must interpret the provisions of KORA. Interpretation of a statute is a question of law over which this court has unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
Next, we are presented with a State appeal of a complaint dismissal. “When the State appeals the dismissal of a complaint, an appellate court’s review of an order discharging the defendant for lack of probable cause is de novo.” State v. Anderson, 270 Kan. 68, 71, 12 P.3d 883 (2000) (citing State v. Stephens, 263 Kan. 658, 661, 953 P.2d 1373 [1998]). It is the role of an appellate court to “view the evidence as would a detached magistrate at a prefiminaiy hearing. The issue is sufficiency of the evidence.” Anderson, 270 Kan. at 71.
“To determine whether there is sufficient evidence to cause aperson of ordinary prudence and caution to entertain a reasonable belief of the accused’s guilt, the court must draw inferences favorable to the prosecution. Moreover, the evidence needs only to establish probable cause, not guilt beyond a reasonable doubt. The court’s role is not to determine the wisdom of the decision to file charges or to determine whether the possibility of a conviction is likely or remote.” Anderson, 270 Kan. at 71 (citing State v. Powell, 266 Kan. 282, 283, 971 P.2d 340 [1998]).
B. Analysis
The State points to K.S.A. 22-4902, which defines the term “offender” for the purpose of establishing who is subject to the KORA registration requirements. Under K.S.A. 22-4902(a)(l), the definition includes a “sex offender,” which is subsequently defined as a person who “is adjudicated as a juvenile offender for an act which if committed by an adult would constitute the commission of a sexually violent crime set forth in subsection (c).” K.S.A. 22-4902(b). Subsection (c) includes aggravated indecent liberties with a child as a sexually violent crime or a conviction in another state for an offense that would be a sexually violent crime in this state. K.S.A. 22-4902(c)(3); K.S.A. 22-4902(c)(12).
The State originally relied in part on its assertion that Fredrick’s Minnesota adjudication was for an offense akin to our crime of aggravated indecent liberties with a child, so that Fredrick is a sex offender required to register under KORA. Fredrick challenges whether his Minnesota crime is comparable to aggravated indecent liberties with a child because the Minnesota offense does not include the specific intent requirements of the Kansas crime.
At oral argument, the State clarified that it was principally relying on K.S.A. 22-4902(a)(6), which includes within the definition of offender “any person who has been required to register under any federal, militaiy or other state’s law or is otherwise required to be registered.” Fredrick does not contest that he is required to register in Minnesota under that other state’s law. Clearly, then, the State is correct that Fredrick would be classified as an offender who is subject to the provisions of the KORA.
Where the State falters is in its failure to establish the length of time an “offender” in Fredrick’s circumstance would be required to register under KORA, i.e., whether at age 30, Fredrick was still required to register in Kansas. The State conceded at oral argument that not all “offenders” are subject to lifetime registration. Rather, K.S.A. 22-4906 specifically addresses the length of time a particular “offender” must register under KORA. Accordingly, in a prosecution for failing to register pursuant to KORA, the State must prove both that the defendant fits within the definition of an “offender” under K.S.A. 22-4902, and that the failure to register occurred within the time period in which the defendant was required to register under K.S.A. 22-4906.
K.S.A. 22-4906(h) specifies the registration requirements for juvenile offenders. The longest period of registration is contained in K.S.A. 22-4906(h)(l), which provides:
“(h)(1) Notwithstanding any other provisions of this section, a person who is adjudicated as a juvenile offender for an act which if committed by an adult would constitute the commission of a sexually violent crime set forth in subsection (c) of K.S.A. 22-4902, and amendments thereto, and such crime is an off-grid felony or a felony ranked in severity level 1 of the nondrug grid as provided in K.S.A. 21-4704, and amendments thereto, shall be required to register until such person reaches 18 years of age, at the expiration of five years from the date of adjudication or, if confined, from release from confinement, whichever date occurs later. The five-year period shall not apply to any person while that person is incarcerated in any jail, juvenile facility or correctional facility. The five-year registration requirement does not include any time period when any person who is required to register under this act knowingly or willfully fails to comply with the registration requirement.”
The district court determined that the registration period provided for juvenile offenders in this state had expired. On appeal, the State does not contend that in 2008, 14 years after his adjudication, Fredrick, at age 30, was still subject to KORA registration under the provisions applicable to juvenile offenders.
Instead, the State relies on a public policy argument, urging us to read the entire statute with a view to effecting the legislative purpose of KORA, which is “to protect the public from sex offenders as a class of criminals who are likely to reoffend.” State v. McElroy, 281 Kan. 256, 263, 130 P.3d 100 (2006) (citing State v. Wilkinson, 269 Kan. 603, 609, 9 P.3d 1 [2000]; State v. Stevens, 26 Kan. App. 2d 606, 609, 992 P.2d 1244 [1999], rev. denied 268 Kan. 895 [2000]). The State would have us intuit that the overarching tenor of the KORA reflects an intention that those persons with a juvenile adjudication in another state who move to Kansas must be required to register in Kansas for the same length of time that was required by the adjudicating state.
There are a number of reasons for declining the State’s invitation to create such legislation on our own, not the least of which is that the legislature specifically recognized the circumstance of another state’s registrant moving to this state. K.S.A. 22-4906(i) provides:
“(i) Any person moving to the state of Kansas who has been convicted in another state, and who was required to register under that state’s laws, shall regster for the same length of time required by that state or Kansas, whichever length of time is longer. The provisions of this subsection shall apply to convictions prior to June 1, 2006, and to persons who moved to Kansas prior to June 1, 2006.” (Emphasis added.)
This court has consistently held that the legislature knows the difference between an adult conviction and a juvenile adjudication, and that when legislation refers only to convictions, it does not include adjudications. See, e.g., State v. Boyer, 289 Kan. 108, 116, 209 P.3d 705 (2009) (under K.S.A. 21-4704[j], juvenile adjudications are not convictions for purposes of determining persistent sex offender status). As the district court pointed out, the legislature demonstrated its awareness of the distinction between convictions and adjudications in the context of KORA in 1997. That year, it amended K.S.A. 22-4902(b) to add language specifying that the term “sex offender,” in addition to applying to a person with a conviction for a sexually violent crime, also included a person with an adjudication as a juvenile offender for an act which if committed by an adult would constitute the commission of a sexually violent crime. L. 1997, ch. 181, sec. 8. However, the legislature chose not to also amend K.S.A. 22-4906(i) to specify a period of KORA registration for a person moving to this state with a juvenile adjudication requiring registration in another state.
In essence, tire State is asking this court to judicially create the amendment to K.S.A. 22-4906(i) that the legislature did not make itself, based upon the State’s belief that such an amended provision would fit the overall legislative purpose of the KORA. This court has repeatedly said that our role is to determine the legislature’s intent through the statutory language employed and that we only resort to other canons of construction if the language is unclear. See, e.g., Arnett, 290 Kan. at 47; State v. Raschke, 289 Kan. 911, 914, 219 P.3d 481 (2009); State v. Trautloff, 289 Kan. 793, 796, 217 P.3d 15 (2009); Graham v. Dokter Trucking Group, 284 Kan. 547, 554, 161 P.3d 695 (2007). We do not speculate as to the legislative intent behind a plain and unambiguous statute simply to allow us to use that speculative intent to justify reading something into the statute that is not readily found in it. See Trautloff, 289 Kan. at 796. This case illustrates the reason for such judicial constraint. Given that the legislature, in K.S.A. 22-4906(h), carved out a specific statute governing the time period of registration for persons with juvenile adjudications, one could just as easily speculate that the legislature consciously and intentionally made K.S.A. 22-4906(i) applicable only to adult convictions.
Moreover, the State’s goal in asking us to add nonexistent language to the KORA is to permit it to prosecute Fredrick for a felony. Accordingly, the State’s proffered statutory interpretation would run counter to the rule of lenity, which directs that “[cjriminal statutes must be strictly construed in favor of the accused,” and that “[a]ny reasonable doubt regarding the meaning of the statute is resolved in favor of the accused.” State v. Snow, 282 Kan. 323, 340-41, 144 P.3d 729 (2006) (citing State v. McCurry, 279 Kan. 118, 121, 105 P.3d 1247 [2005]).
In conclusion, at the time the district court heard Fredrick’s motion to dismiss, the State was unable to show that Fredrick was required to register pursuant to the provisions of the KORA. Therefore, the State failed to establish that there was probable cause to believe that Fredrick had committed the crime of failure to register under the KORA. Without the requisite supporting probable cause, the district court properly dismissed the complaint.
Affirmed. | [
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|
The opinion of the court was delivered by
Brewer, J.:
This was an action of replevin brought by defendant in error against Samuel Walker, one of the plaintiffs in error, to recover the possession of certain machinery. Walker held them as sheriff of Douglas county under an order of attachment issued in the case ol G-. W. Seibert, Elijah Sells and W. II. Sells v. L. B. Maxwell. Upon their application the plaintiffs in the attachment suit were made defendants in the replevin action. The main question in the case is whether the property belonged to L. B. Maxwell, or to the Eagle Works Manfg. Go. at the time of the attachment. After the pleadings were filed and the issue joined the case was referred to Nelson Oobb, Esq., as sole referee. The report of the referee was in favor of the company, which report was confirmed by the district court and judgment entered accordingly. No exceptions were preserved to the admission or rejection of testimony, and the only question for our consideration is whether the testimony in the case supports the finding of the referee. So far as regards a re-examination in this court, the findings of fact by a referee have equal force with the findings of fact by a court, or the special verdict of a jury. We are not to set them aside simply because the testimony as preserved in the record tends to produce in our minds a conclusion different from that reached by the referee. Bayer v. Cockrill, 3 Kas., 282. It is sufficient ordinarily that there be testimony which if believed mil support the finding, though there be large amount of conflicting and contradictory evidence. It is possible to conceive of eases where the preponderance is so great that we should feel called upon to interfere; but this is not one of those cases. Here is ample and apparently credible testimony to support the findings. The only one questioned is the finding as to the ownership; and both L. B. Maxwell, the defendant in the attachment suit, and J. <T. Blanchard, the agent of the company, swear positively that the property belonged to the company at the time of the attachment. It may be that the contract testified to by Maxwell as made between him and the company is a singular one for business men to make, but the testimony is positive that it was made. Upon that positive testimony the referee might well find as he did. The judgment must be affirmed.
All the Justices concurring. | [
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|
The opinion of the court was delivered by
Johnson, J.:
Bradley F. Whorton directly appeals the district court’s refusal to impose a departure sentence pursuant to K.S.A. 21-4643(d), which was jointly recommended by the parties as part of a plea agreement. Whorton complains that the district court’s failure to specifically discuss the departure factor to which the parties stipulated constitutes an abuse of discretion. He requests that we remand the case for resentencing with instructions to grant the departure. We deny the request and affirm the district court’s sentence.
Factual and Procedural Overview
Whorton’s criminal case emanated from accusations that he engaged in certain sex acts with an 11-year-old female child. Pursuant to a plea agreement, he pled guilty to two counts of aggravated criminal sodomy and two counts of aggravated indecent liberties with a child. In return, the State agreed that it would not oppose Whorton’s request for a departure under K.S.A. 21-4643(d)(l). The State specifically agreed that the substantial and compelling basis for the departure was “the lack of significant prior scoreable criminal history by the defendant.”
Whorton filed a written motion in which he argued that his lack of criminal history justified a departure from the mandatory minimum hard 25 life sentence prescribed in K.S.A. 21-4643(a)(l). The district court considered that motion at the sentencing hearing, where the State recommended the departure.
At the beginning of the sentencing hearing, the district court noted that the presentence investigation report (PSI) had been completed and advised the parties that it had reviewed the PSI prior to the sentencing hearing. The court observed that a criminal history finding might be unnecessary under the circumstances, presumably because the parties had stipulated that Whorton had no scoreable criminal history. Nevertheless, the judge stated for the record that “the Court finds that his criminal history is a category I” and elicited an agreement to that finding from Whorton and his attorney.
After the parties were afforded an opportunity to present arguments in favor of the recommended departure sentence, the court related that it “has had plenty of time to think about this case.” The defendant was then offered allocution, after which the district court proceeded to impose a fife sentence on each of the four counts, but provided that all sentences were to be served concurrently. After completing the sentencing, the district court turned its attention to the motion to depart.
The district court first addressed the argument that Whorton’s sentence should be comparable to the 15-year sentence the victim’s father had received in another case. The court opined that “[ejvery case is unique and turns on its own facts and circumstances,” so that the outcome of another case is not controlling. The court found that the facts and circumstances of this case were that the 53-year-old defendant had sexually abused the 11-year-old victim over a period of 2% months.
The court then looked at the statutory mitigating factors set forth in K.S.A. 21-4643(d)(2)-(6), and found that none of those circumstances were present in this case. To the contrary, the court found that Whorton had simply taken advantage of a helpless 11-year-old child for his own sexual gratification. Believing that the hard 25 life sentence in K.S.A. 21-4643(a) was designed to address the situation presented in this case, the court was unable to find substantial and compelling reasons to depart from that life sentence.
Whorton timely appealed, claiming that the district court erred in denying his motion to depart under K.S.A. 21-4643(d).
Denial of Departure Motion
A. Standard of Review
Appellate courts apply an abuse of discretion standard of review to a district court’s determination of whether mitigating factors are substantial and compelling reasons to depart. State v. Mondragon, 289 Kan. 1158, 1160-61, 220 P.3d 369 (2009). K.S.A. 21-4643(d) grants broad discretion, meaning judicial discretion is abused when no reasonable person would take the view adopted by the district judge. State v. Gonzalez, 290 Kan. 747, 755, 234 P.3d 1 (2010); State v. Robison, 290 Kan. 51, 55, 222 P.3d 500 (2010); Mondragon, 289 Kan. at 1160-61; State v. Seward, 289 Kan. 715, Syl. ¶ 4, 217 P.3d 443 (2009).
B. Analysis
Whorton first contends that the district court abused its discretion by failing to consider his absence of criminal history as a mitigating factor. He points to the sentencing judge’s comments that explicitly found that the five statutory factors in K.S.A. 21-4643(d) (2)-(6) were inapplicable in this case. Whorton construes that recitation as evidence that the district court simply ignored the mitigating factor listed in K.S.A. 21-4643(d)(l), i.e., “[t]he de fendant has no significant histoiy of prior criminal activity.” While a sentencing court’s refusal to consider a mitigating factor could arguably constitute an abuse of discretion, we disagree with Whorton’s characterization of the record as indicating such a refusal in this case. Cf. State v. Gideon, 257 Kan. 591, 611, 894 P.2d 850 (1995) (refusal to consider defendant’s proffered evidence in mitigation distinguished from failure to indicate whether court found factors in mitigation).
The court began the sentencing hearing by advising that its review of the PSI revealed that Whorton had a criminal history score of I, and the court specifically confirmed that Whorton and his attorney agreed with that assessment. The court’s criminal history finding comported with the parties’ stipulation that Whorton lacked “significant prior scoreable criminal histoiy.” See K.S.A. 21-4709 (describing the criminal histoiy categories). Having made that specific finding, it would have been redundant for the court to malee it again when discussing the statutoiy factors.
Further, after making its finding of criminal histoiy, the court acknowledged Whorton’s written motion for departure and advised the parties that it had “read, reviewed and considered the arguments in the motion.” Those arguments included Whorton’s assertion that his lack of prior criminal history provided a substantial and compelling reason to depart. Accordingly, Whorton’s suggestion that the district court ignored or refused to consider the mitigating factor in K.S.A. 21-4643(d)(l) is bebed by the record before us.
Next, Whorton suggests that the district court’s refusal to depart was an abuse of discretion because the State had agreed — both in the plea agreement and at the sentencing hearing — that the mitigating factor in K.S.A. 21-4643(d)(l) constituted a substantial and compelling reason to depart. That argument is fundamentally flawed. While the prosecutor may stipulate to the existence of facts which estabbsh a mitigating factor, any stipulation as to the legal effect of the mitigating factor is not binding on the court. We have clarified that it is the judge who must find substantial and compelling reasons to depart after a review of the mitigating factors. State v. Thomas, 288 Kan. 157, 163, 199 P.3d 1265 (2009) (citing State v. Ortega-Cadelan, 287 Kan. 157, 164, 194 P.3d 1195 [2008]).
Finally, Whorton contends that it is arbitrary to grant a departure based on a lack of criminal history in one case, but to deny departure in another case where the same mitigating factor exists. That argument suggests that each mitigating factor in K.S.A. 21-4643(d) constitutes a per se substantial and compelling reason for a departure sentence. We rejected that notion in Ortega-Cadelan, 287 Kan. at 164, and again in Thomas, 288 Kan. at 163. “Rather, a two-step procedure applies: First, the judge reviews mitigating circumstances and, second, the judge determines if there are substantial and compelling reasons for a departure.” Thomas, 288 Kan. at 163. As the district court in this case correctly observed, “Every case is unique and turns on its own facts and circumstances.” See State v. Blackmon, 285 Kan. 719, 724, 176 P.3d 160 (2008) (For a mitigating factor to be considered compelling, it “must be one which forces the court, hy the facts of the case, to abandon the status quo and to venture beyond the sentence that it would ordinarily impose.” [Emphasis added.]).
Here, the sentencing transcript reveals that the district court considered the arguments propounded by Whorton in his departure motion and that it found the existence of the mitigating factor in K.S.A. 21-4643(d). Then, the district court reviewed Whorton’s conduct in committing the offenses, determining that the offenses were “egregious” and of the type intended to be addressed by Jessica’s Law. Finally, the court explicitly stated that it was “unable to find substantial, compelling reasons to depart.” That is all that we ask of a sentencing court. See Thomas, 288 Kan. at 164.
Affirmed. | [
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|
The opinion of the court was delivered by
Beier, J.:
David McDaniel asks this court to reverse the Court of Appeals’ decision affirming the sentence and restitution order imposed by the district court for his conviction of aggravated battery. McDaniel contends that the district court lacked jurisdiction to order restitution and violated his constitutional rights by imposing the highest sentence in the grid box assigned to his offense without the aggravating facts being proved to a jury.
Factual Background and Procedural History
The factual background and procedural history of this case are straightforward.
McDaniel entered a guilty plea to one count of aggravated battery arising from his involvement in a fight that ended with McDaniel stabbing the victim. McDaniel’s presentence investigation report, submitted 9 days before the sentencing hearing, included a restitution amount of $21,269.06, payable to Medicaid for the victim’s medical expenses. The record on appeal reflects no request from the victim or the victim’s family for restitution.
At the sentencing hearing, the district judge denied McDaniel’s request for a nonprison sentence and imposed 34 months’ incarceration, the highest presumptive sentence in the grid box corresponding to a severity level 5 felony committed by an individual with a criminal history score of I. When the judge then mentioned the PSI restitution amount, McDaniel objected. The judge then asked if the issue needed to be set for hearing, and counsel for McDaniel and the State agreed to a hearing date approximately 3 weeks in the future. The judge then proceeded with remaining elements of a typical plea colloquy, including recitation of a notice of appeal deadline 10 days after the sentencing hearing.
McDaniel filed his notice of appeal within 10 days of the sentencing hearing.
At the later hearing on the restitution amount, counsel for the State opened his remarks by referring to the proceeding as a “continued” sentencing. There was no contrary statement by McDaniel’s counsel or the judge. McDaniel stipulated to a reduced restitution amount of $7,744.26, and the judge entered an order consistent with that stipulation.
Discussion
Jurisdiction to Set Restitution Amount
Jurisdiction is a question of law over which this court exercises unlimited review. State v. Jackson, 291 Kan. 34, 35, 238 P.3d 246 (2010) (citing State v. Denney, 283 Kan. 781, 787, 156 P.3d 1275 [2007]). In addition, this case requires the court to interpret provisions of the Kansas Sentencing Guidelines Act (KSGA). Statutory interpretation is a question of law, and this court’s review is unlimited. State v. Miller, 260 Kan. 892, 895, 926 P.2d 652 (1996).
“When courts are called upon to interpret statutes, the fundamental rule governing our interpretation is that ‘the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted.’ State ex rel. Stovall v. Meneley, 271 Kan. 355, 378, 22 P.3d 124 (2001). For this reason, when the language of a statute is plain and unambiguous, courts ‘need not resort to statutory construction.’ In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007). Instead, ‘[w]hen the language is plain and unambiguous, an appellate court is bound to implement the expressed intent.’ State v. Manbeck, 277 Kan. 224, Syl. ¶ 3, 83 P.3d 190 (2004).
“Where a statute’s language is subject to multiple interpretations, however, a reviewing court ‘may look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested. [Citation omitted.]’ Robinett v. The Haskell Co., 270 Kan. 95, 100-01, 12 P.3d 411 (2000). Generally, courts should construe statutes to avoid unreasonable results and should presume that the legislature does not intend to enact useless or meaningless legislation. Hawley v. Kansas Dept. of Agriculture, 281 Kan. 603, 631, 132 P.3d 870 (2006). We ascertain the legislature’s intent behind a particular statutory provision ‘from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. [Citation omitted.]’ In re Marriage of Ross, 245 Kan. 591, 594, 783 P.2d 331 (1989); see also State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. 763, Syl. ¶ 2, 69 P.3d 1087 (2003). Thus, in cases that require statutory construction, ‘courts are not permitted to consider only a certain isolated part or parts of an act but are required to consider and construe together all parts thereof in pari materia.’ Kansas Commission on Civil Rights v. Howard, 218 Kan. 248, Syl. ¶ 2, 544 P.2d 791 (1975).” Board of Sumner County Comm’rs v. Bremby, 286 Kan. 745, 754-55, 189 P.3d 494 (2008).
“Sentencing in a criminal proceeding takes place when the trial court pronounces the sentence from the bench.” Jackson, 291 Kan. at 35 (citing State v. Garcia, 288 Kan. 761, 765, 207 P.3d 251 [2009]; Abasolo v. State, 284 Kan. 299, 304, 160 P.3d 471 [2007]; State v. Moses, 227 Kan. 400, 402, 607 P.2d 477 [1980]). A district judge has no jurisdiction to change a sentence once it is pronounced. fackson, 291 Kan. at 35. An exception exists under the KSGA for modification to correct arithmetic or clerical errors. See K.S.A. 21-4721(i); State v. Miller, 260 Kan. 892, 900, 926 P.2d 652 (1996); see also State v. Anthony, 274 Kan. 998, 1002, 58 P.3d 742 (2002) (“Without the authority granted by statute, the court has no ability to modify.”). Restitution is one of the dispositions authorized by K.S.A. 21-4603d, and it therefore constitutes part of a criminal defendant’s sentence. K.S.A. 21-4603d(b)(l).
The first question before us is whether the procedure followed by the district judge in this case ran afoul of these rules governing sentencing jurisdiction.
McDaniel advances two arguments on this question. First, he invoices K.S.A. 22-3424(d) to contend that any hearing on restitution must take place before sentencing. Second, he argues that what occurred in his case was an impermissible change in his sentence after pronouncement from the bench.
K.S.A. 22-3424(d) provides:
“If the verdict or finding is guilty, upon request of the victim or the victim’s family and before imposing sentence, the court shall hold a hearing to establish restitution. The defendant may waive the right to the hearing and accept the amount of restitution as established by the court. If the court orders restitution to be paid to the victim or the victim’s family, the order shall be enforced as a judgment of restitution pursuant to K.S.A. . . . 60-4301 through 60-4304.” (Emphasis added.)
McDaniel is correct that the plain language of K.S.A. 22-3424(d) clearly states that a court “shall” hold a hearing to establish restitution before imposing sentence, but this language is limited to situations in which the crime victim or the victim’s family requested restitution. We do not have that situation here.
In addition, we agree with the Court of Appeals panel that decided State v. Bryant, 37 Kan. App. 2d 924, 163 P.3d 325, rev. denied 285 Kan. 1175 (2007), which held that the “shall” used in K.S.A. 22-3424(d) is directory rather than mandatory. Bryant, 37 Kan. App. 2d at 930.
As we set forth in State v. Raschke, 289 Kan. 911, Syl. ¶ 4, 219 P.3d 481 (2009), the factors that bear on the directory/mandatory question include: (1) legislative context and history; (2) substantive effect on a party’s rights versus merely form or procedural effect; (3) existence or nonexistence of consequences for noncompliance; and (4) the subject matter of the statutory provision. See State v. Copes, 290 Kan. 209, 220, 224 P.3d 571 (2010).
Regarding the first factor, there is little legislative history available regarding K.S.A. 22-3424(d). The language at issue was added in 1995 by conference committee amendment. House J. 1995, p. 676. No committee minutes or supplemental notes address the language or its underlying intention.
On the second and fourth factors, we view the language of K.S.A. 22-3424(d) as fixing a mode of procedure rather than affecting the substantial rights of any party. Indeed, each subsection of K.S.A. 22-3424 addresses the process by which the district court shall render judgment and impose sentence. This procedure “secure[s] order, system, and dispatch of the public business.” See Raschke, 289 Kan. at 922.
Subsection (d) of K.S.A. 22-3424 also does not impose any consequences for a sentencing judge’s failure to determine restitution before imposing sentence.
Examination of all of these factors leads us to conclude that K.S.A. 22-3424 is directory, not mandatory. The district judge’s failure to require that any hearing on the amount of restitution occur before sentencing in this case did not deprive the district court of jurisdiction.
We now turn to McDaniel’s second argument — that the setting of restitution in the second hearing was an impermissible change in his sentence. In McDaniel’s view, the restitution ordered at the sentencing hearing was zero, and that amount was later changed to $7,744.26. He relies on the general rule stated in State v. Trostle, 41 Kan. App. 2d 98, 201 P.3d 724 (2009), and State v. Anthony, 274 Kan. at 1002, i.e., that a court may not alter a sentence after pronouncement. He acknowledges our earlier decision in State v. Cooper, 267 Kan. 15, 18-19, 977 P.2d 960 (1999), in which we held that a district judge has discretion to extend the time to set an amount, once restitution was ordered at sentencing; but he asserts that Trostle and Anthony call Cooper into question.
We leave consideration of the substance of McDaniel’s criticism and synthesis of Trostle, Anthony, and Cooper for another day, because the facts before us simply do not support an argument that any change in sentence took place. The district judge’s restitution order altered nothing about McDaniel’s sentence; it merely completed it. Both sides demonstrated that they understood exactly this fact when they agreed to the timing and subject matter of the later hearing. Functionally, McDaniel got precisely what he now claims to want: a continuation of his sentencing to fill in the only blank left in the court’s pronouncement. Although it may have been better practice for the district judge to wait until the later hearing to conclude his usual sentencing colloquy, and he erred in reciting a deadline for notice of appeal that fell between the first and second hearings, we see no prejudice to McDaniel’s rights. Indeed, McDaniel got the reward he sought when his counsel lodged the objection to the PSI restitution amount at the sentencing hearing. The functional continuance led to a % reduction in the amount McDaniel would be expected to pay to reimburse Medicaid.
Given all of the above discussion, we affirm the order of restitution.
Sentencing to Highest Grid Term
McDaniel also invokes Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), to argue that he could not be sentenced to the highest presumptive term in the grid box applicable to his offense severity of 5 and criminal history of I without aggravating facts first being proved to a jury. We rejected this argument in State v. Johnson, 286 Kan. 824, 849-51, 190 P.3d 207 (2008) (discussing prior Kansas cases, United States Supreme Court decision in Cunningham v. California, 549 U.S. 270, 127 S. Ct. 856, 166 L. Ed. 2d 856 [2007]). We decline McDaniel’s request to reconsider Johnson here, meaning his 34-month prison sentence also is affirmed.
The district court is affirmed. The Court of Appeals is affirmed. | [
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|
Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Michael E. Foster, of Wichita, an attorney admitted to the practice of law in Kansas in 1973.
On August 12, 2010, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). A joint stipulation was entered into on September 12, 2010. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on November 23, 2010, where the respondent was present and was represented by counsel. The hearing panel determined that respondent violated KRPC 1.1 (2010 Kan. Ct. R. Annot. 406) (competence); 1.3 (2010-Kan. Ct. R. Annot. 422) (diligence); 1.4(a) (2010 Kan. Ct. R. Annot. 441) (communication); and 3.2 (2010 Kan. Ct. R. Annot. 539) (expediting litigation). Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
“FINDINGS OF FACT
“2. In 1991, Laymott Wilmott retained the Respondent to probate his sister’s estate. Mary Jane Wilmott, Laymott Wilmott’s sister, died intestate with no surviving spouse or children. Ms. Wilmott’s heirs were her four adult siblings.
“3. The Respondent commenced the estate proceedings and on July 10,1991, the court appointed Mr. Wilmott as the administrator of the estate. On August 19, 1991, the Respondent filed an inventory and valuation. In November, 1991, the court entered an order approving the sale of the real property.
“4. In November, 1992, the Respondent filed an application with the court for a partial distribution of $20,000 for each heir. The court approved the partial distribution in February, 1994.
“5. The sale of the real estate was completed in late 1991, however, the Respondent failed to prepare and present an order memorializing the sale to the court until February, 1994. The Respondent took no further action to distribute the assets of the estate to the heirs or otherwise complete the representation.
“6. On May 4, 1999, Mr. Wilmott died. The Respondent took no action to secure the appointment of a new administrator of the estate. Then, two other original heirs also passed away.
“7. In May, 2005, at the request of the only surviving original heir, Louis Wilmott, Delaine Bean, Ms. Wilmott’s nephew, began investigating why the estate remained open. Mr. Bean retained new counsel, Karl Hesse, to assist him.
“8. Mr. Bean and Mr. Hesse discovered that no federal or state income tax returns had been filed on behalf of the estate between 1994 and 2005. Mr. Bean and Mr. Hesse eventually filed all the required tax returns for the estate, paid the outstanding tax liability, and paid interest and penalties on the outstanding tax liability.
“9. Mr. Bean and Mr. Hesse also learned that the Respondent periodically received royalty checks from oil and mineral interests owned by Ms. Wilmott. The Respondent placed the checks in a file and took no further action regarding the checks. After Mr. Bean and Mr. Hesse discovered the checks, they attempted to deposit the checks. They were unable to collect all the proceeds of the checks due to the passage of time.
“10. Mr. Bean and Mr. Hesse worked for two and one half years to determine the extent of the injury cause by the Respondent’s lack of diligence. Mr. Bean spent more than 1400 hours on Ms. Wilmott’s estate. The Respondent’s actions cost Ms. Wilmott’s estate $44,659.56.
“11. Mr. Hesse made a demand on the Respondent’s malpractice carrier. The carrier denied coverage because the Respondent had not notified the company of the potential claims during various renewal years. Eventually, the Respondent paid $7,000 to settle the claim by the estate.
“CONCLUSIONS OF LAW
“1. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, and KRPC 3.2, 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.’ The Respondent did not represent the estate of Ms. Wilmott with sufficient thoroughness or preparation. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.1.
“3. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. The Respondent’s lack of diligence in tins case is remarkable. From 1994 forward, he failed to take any steps to further representation of the estate. The Respondent failed to liquidate the assets of the estate. The Respondent failed to seek the distribution of the assets of the estate to the heirs. The Respondent failed to seek the appointment of an administrator following Mr. Wilmott’s death. He failed to file the necessary tax returns. Finally, the Respondent failed to deposit the oil and mineral royalty checks into the estate bank account. The Hearing Panel, therefore, concludes that the Respondent failed to act with reasonable diligence and promptness in representing Ms. Wilmott’s estate, in violation of KRPC 1.3.
“4. KRPC 1.4(a) provides that ‘[a] lawyer shall keep a client reasonably informed about the status of a matter and prompdy comply with reasonable requests for information.’ In this case, the Respondent violated KRPC 1.4(a) when he failed to inform Ms. Wilmott’s heirs that the estate continued to receive royalty checks. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.4(a).
“5. An attorney violates KRPC 3.2 if he fails to malee reasonable efforts to expedite litigation consistent with the interests of his client. Ms. Wilmott’s estate languished for more than 11 years because of the Respondent’s failure to expedite the case. During that time, 3 of the 4 heirs died and $44,659.56 was either lost or incurred as an additional expense. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 3.2.
“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 and adequate communication.
“Mental State. The Respondent knowingly violated his duty.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual serious injury to his client. The Respondent’s misconduct cost the estate the net amount of $37,659.56.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“Prior Disciplinary Offenses. On August 31,2004, the Respondent entered into the Attorney Diversion Program for having violated KRPC 1.1, KRPC 1.3, KRPC 1.4, and KRPC 3.2. The Respondent successfully completed the terms and conditions of the diversion agreement. Thereafter, the complaint that gave rise to the diversion agreement was dismissed.
“A Pattern of Misconduct. The Respondent failed to diligently represent his client for a period of 11 years which amounts to a serious pattern of misconduct.
Multiple Offenses. The Respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, and KRPC 3.2. As such, the Hearing Panel concludes that the Respondent committed multiple offenses.
“Vulnerability of Victim. The estate of Ms. Wilmott was vulnerable to the Respondent’s misconduct.
“Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to the practice of law in 1973. At the time the misconduct commenced, the Respondent had been practicing law for more than 20 years. The Hearing Panel, therefore, concludes that the Respondent had substantial experience in the practice of law.
“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 Dishonest or Selfish Motive. The Respondent’s misconduct does not appear to have been motivated by dishonesty or selfishness.
“Personal or Emotional Problems if Such Misfortunes Have Contributed to Violation of the Kansas Rules of Professional Conduct. The Respondent suffers from dysthymia disorder and generalized anxiety disorder. It appears that the dysthymia disorder and generalized anxiety disorder contributed to the Respondent’s misconduct in this case.
“The Present and Past Attitude of the Attorney as Shoion by His or Her Cooperation During the Hearing and His or Her Full and Free Acknowledgment of the Transgressions. The Respondent cooperated throughout the disciplinary investigation and hearing.
“Previous Good Character and Reputation in the Community Including Any Letters from Clients, Friends and Lawyers in Support of the Character and General Reputation of the Attorney. The Respondent enjoyed a good reputation among his peers in the Wichita bar, as described in letters received by the Hearing Panel.
“Remorse. The Respondent expressed genuine remorse for having engaged in misconduct.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘4.42 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.’
“RECOMMENDATION
“At the time of tire hearing, the Deputy Disciplinary Administrator made no specific recommendation for discipline. Instead, the Deputy Disciplinary Administrator informed tire Hearing Panel that she wished to wait until the time of the oral argument before the Kansas Supreme Court to make a recommendation. The Deputy Disciplinary Administrator argued that because the Respondent had not completely put his plan of probation into effect, she was not able to join the Respondent’s request that he be placed on probation, subject to the terms and conditions of his proposed plan.
“However, the Deputy Disciplinary Administrator stated that she wished to consider her recommendation after receiving the Respondent’s affidavit required by Kan. Sup. Ct. R. 211(g)(5).
“The Respondent recommended that the Hearing Panel place the Respondent on probation subject to the terms and conditions of his plan. Additionally, the Respondent recommended that the Hearing Panel make certain adjustments to the plan of probation, including adding a provision that would limit the Respondent’s practice by prohibiting the Respondent from practicing in the area of probate law.
“Kan. Sup. Ct. R. 211(g) details what is required of a Respondent to be considered for 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 the Respondent be placed on probation unless:
(i) the Respondent develops a workable, substantial, and detailed plan of probation and provides a copy of the proposed plan of probation to the Disciplinary Administrator and each member of the Hearing Panel at least ten days prior to the hearing on the Formal Complaint;
(ii) the Respondent puts the proposed plan of probation into effect prior to the hearing on the Formal Complaint by complying with each of the terms and conditions of the probation plan;
(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.’
“The Respondent properly submitted a timely plan of probation. It appears to be workable, substantial, and detailed. However, the Respondent failed to put the plan of probation into place by complying with each of the terms and conditions of the plan of probation. Accordingly, the Hearing Panel concludes that the Respondent failed to comply with Kan. Sup. Ct. R. 211(g).
“Suspension is warranted in this case. The Respondent’s depression appears to continue to impact the Respondent and his ability to practice law. In the opinion of the Hearing Panel, the Respondent should comply with all of the recommendations of the treating professionals.
“It is not the Hearing Panel’s intention to end the Respondent’s career by recommending a suspension from the practice of law. Therefore, the Hearing Panel unanimously recommends that the Respondent be suspended for a period of six months. However, the Hearing Panel recommends that the Respondent undergo a hearing pursuant to Kan. Sup. Ct. R. 219 prior to reinstatement. A reinstatement hearing is necessary in this case because the Respondent needs to establish that he is in good mental health and fit to resume the practice of law.
“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-hearing panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should, be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Miller, 290 Kan. 1075, 1084-85, 238 P.3d 227 (2010); In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009); see Supreme Court Rule 211(f) (2010 Kan. Ct. R. Annot. 327). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.” ’ ” In re Lober, 288 Kan. at 505 (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]).
In this case, the respondent withdrew his exceptions to the panel’s final hearing report. Accordingly, the hearing report’s findings and conclusions are deemed admitted. Supreme Court Rule 212(c) (2010 Kan. Ct. R. Annot. 344). The evidence before the hearing panel establishes the charged misconduct of the respondent by clear and convincing evidence and supports the panel’s conclusions of law. We therefore adopt the hearing panel’s findings and conclusions, except as noted below.
At oral argument before this court, the Disciplinary Administrator’s office asked the court to impose a 6-month suspension and require a hearing pursuant to Supreme Court Rule 219 (2010 Kan. Ct. R. Annot. 370) prior to reinstatement as recommended by the hearing panel. The Disciplinary Administrator noted that the proposed probation plan was not received and implemented by the required April 15, 2011, deadline established between the respondent and the Disciplinary Administrator’s office. Respondent also missed the December 31, 2010, deadline to provide a case list, finally submitting a case list to the Disciplinary Administrator on May 20, 2011. Further, liability insurance had not been obtained in spite of respondent’s assurance that it would be in place at the time of the hearing. Based on respondent’s demonstrated inability to meet these conditions, we agree that a 6-month suspension is in the best interest of the respondent and the public. Reinstatement is conditioned upon respondent demonstrating that he has addressed his depressive disorder, establishing drat he is in good mental health and fit to resume the practice of law, and complied with the conditions previously agreed upon with the Disciplinary Administrator’s office.
Conclusion
It Is Therefore Ordered that Michael E. Foster be suspended for 6 months from the practice of law in the state of Kansas, effective on the filing of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2010 Kan. Ct. R. Annot. 276).
It Is Further Ordered that the respondent shall comply with Supreme Court Rule 218 (2010 Kan. Ct. R. Annot. 370), and in the event respondent seeks reinstatement, he shall comply with Supreme Court Rule 219.
It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports. | [
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The opinion of the court was delivered by
Rosen, J.:
On review of an unpublished opinion by the Court of Appeals affirming his convictions, Myron Coleman appeals from his bench-trial convictions of possession of cocaine with intent to sell, possession of cocaine without tax stamps, and possession of drug paraphernalia with intent to package a controlled substance for sale. He challenges the detention and search that produced the evidence leading to his convictions.
The events leading up to this appeal began at 12:30 in the morning of August 17, 2007, when Deputy Sheriff Matt Tatro stopped a car for speeding on a highway between Wichita and Hutchinson in Reno County and identified Coleman as the driver. Tatro determined that the car was rented and was registered to Conklin Cars of Hutchinson. The rental agreement had expired 2 days earlier, but Coleman explained that he had renewed the agreement over the telephone. The possibility of a telephone renewal struck Tatro as “odd.”
As part of his normal procedures following a stop, Tatro ran a check on the driver and learned that Coleman was on parole. The stop at that point had lasted approximately 5 minutes. Tatro then received a call from Deputy Cory Griffiths, who was involved in the drug enforcement unit. Griffiths informed Tatro that deputies with the unit had “specific knowledge” that Coleman was moving cocaine between Wichita and Hutchinson. Ed Mora, a parole officer with the Kansas Department of Corrections, then called Tatro and reported that Coleman s parole officer had expressed concerns about Coleman’s repeated trips between Wichita and Hutchinson. Mora asked Tatro to detain Coleman for a search.
Two backup officers arrived, and then, 35 minutes to an hour after the initial stop, Mora arrived at the scene. Mora informed Coleman that he was not under arrest, but he nevertheless placed Coleman in handcuffs. A search of Coleman’s person produced $1,035 in cash, and a search of the car revealed small rocks loose on the front seat and larger rocks wrapped in plastic in a coffee cup; these rocks field tested positive for cocaine and subsequently lab-tested positive for cocaine. The search also produced a pair of latex gloves and a box of sandwich baggies.
Tatro ultimately did not give Coleman a ticket for speeding. The State eventually charged Coleman with one count of possession of cocaine with intent to sell, K.S.A. 65-4161; one count of possession of cocaine without tax stamps, K.S.A. 79-5204; and one count of possession of drug paraphernalia with intent to package a controlled substance for sale, K.S.A. 65-4l52(a)(3).
Coleman filed a motion to suppress the seized evidence. The parties agreed to submit the motion based on written pleadings and the transcript of the preliminary hearing. The district court denied the motion, ruling that tire circumstances of the stop and information available to the police, in combination with Coleman’s parole status, sufficed to legitimize the search and that the search was not arbitrary or capricious. Coleman filed a motion for reconsideration, arguing that the court had applied an overly lenient burden to the State’s evidence. The district court reconsidered the issue and denied the motion for reconsideration on different grounds, finding that the police had a reasonable suspicion justi fying the search. The court found that the grounds for the reasonable suspicion were that Coleman was on parole, that the car rental agreement had expired 2 days earlier, that an officer with the drug enforcement unit was “aware of information” that Coleman “was known” for trafficking drugs, and that Coleman’s parole officer was aware of no reason for Coleman to be traveling from Wichita to Hutchinson.
The parties proceeded to a bench trial on stipulated facts. The district court found Coleman guilty of all three counts and sentenced him to a midrange sentence of 49 months for possession of cocaine and concurrent midrange sentences of 6 months and 11 months for failure to have a tax stamp and possession of drug paraphernalia. The Court of Appeals affirmed the convictions, and this court granted review.
Coleman challenges the admissibility of evidence discovered in the search of his rental car.
During a routine traffic stop, a law enforcement officer may request a driver’s license, proof of insurance, and vehicle registration; run a computer check; and issue a citation. United States v. Elliott, 107 F.3d 810, 813 (10th Cir. 1997). As a general principle, the driver must be allowed to leave without further delay once the officer determines that the driver has a valid license and is entitled to operate the vehicle. United States v. Wood, 106 F.3d 942, 945 (10th Cir. 1997); State v. Anderson, 281 Kan. 896, 902, 136 P.3d 406 (2006).
An officer’s inquiries or actions unrelated to the justification for an initial traffic stop do not convert the stop into an unlawful seizure so long as they do not measurably extend or prolong the stop. In the absence of consent, an officer may expand the duration of the investigative detention beyond an initial stop when the responses of a detainee and the circumstances relating to the stop give rise to suspicions unrelated to the traffic offense. The officer may then satisfy those suspicions, graduating the police response to the demands of the situation. State v. Morlock, 289 Kan. 980, 986-89, 218 P.3d 801 (2009) (citing Arizona v. Johnson, 555 U.S. 323,129 S. Ct. 781, 172 L. Ed. 2d 694 [2009]). Further, an officer may expand the investigative detention beyond the purpose of the initial stop only if there is an objectively reasonable and articulable suspicion that criminal activity was or is taking place. United States v. Sharpe, 470 U.S. 675, 682, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985); United States v. Williams, 271 F.3d 1262, 1267 (10th Cir. 2001); State v. Thomas, 291 Kan. 676, Syl. ¶ 8, 246 P.3d 678 (2011); K.S.A. 22-2402.
The issues now before this court are whether the facts known to the officer created a reasonable suspicion of criminal activity that justified further investigation and extending the detention, and, if they did not, whether the officer had the authority to arrest Coleman and conduct a search incident to that arrest. Notwithstanding Mora’s statement to Coleman that he was not under arrest when he was placed in handcuffs, Coleman was under arrest at that point in time. See K.S.A. 22-2405(1)
On a motion to suppress evidence, this court generally reviews the factual findings underlying the district court’s suppression decision by a substantial competent evidence standard and the ultimate legal conclusion drawn from those factual findings by a de novo standard. The court does not reweigh the evidence. State v. Ransom, 289 Kan. 373, 380, 212 P.3d 203 (2009). When the parties do not dispute the material facts, however, the suppression question is solely one of law. Thomas, 291 Kan. at 682.
Whether reasonable suspicion exists is a question of law and is reviewed de novo. In reviewing an officer’s belief of reasonable suspicion, an appellate court determines whether the totality of the circumstances justifies the detention. State v. Walker, 292 Kan. 1, Syl. ¶¶ 5, 6, 251 P.3d 618 (2011).
Reasonable suspicion is a less demanding standard than probable cause and requires a showing of considerably less than a preponderance of the evidence, but the Fourth Amendment to the United States Constitution requires at least a minimal level of objective justification. The officer must be able to articulate more than an “inchoate and unparticularized suspicion” or “hunch” of possible criminal activity. Illinois v. Wardlow, 528 U.S. 119, 123-24, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000); Thomas, 291 Kan. at 688.
The reviewing court does not “pigeonhole” each factor as to innocent or suspicious appearances, but instead determines whether the totality of the circumstances justifies the detention. State v. DeMarco, 263 Kan. 727, 734-35, 952 P.2d 1276 (1998). The relevant inquiry is not whether particular conduct is “innocent” or “guilty,” but whether a sufficient degree of suspicion attaches to particular types of noncriminal acts. United States v. Sokolow, 490 U.S. 1, 10, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989). The totality of the circumstances standard precludes a “divide-and-conquer analysis” under which factors that are “readily susceptible to an innocent explanation [are] entitled to ‘no weight.’ ” United States v. Arvizu, 534 U.S. 266, 274, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002). In considering the totality of the circumstances, a reviewing court should employ common sense and the ordinary human experience and should accord reasonable deference to a law enforcement officer’s ability to distinguish between innocent and suspicious actions. United States v. Wood, 106 F.3d 942, 946 (10th Cir. 1997); Walker, 292 Kan. 1, Syl. ¶ 6.
The Fourth Amendment provides that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shah not be violated.” U.S. Const, amend. IV.
A traffic violation provides an objectively valid reason for conducting a traffic stop. Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977); State v. Moore, 283 Kan. 344, 350, 154 P.3d 1 (2007). The parties stipulated that Coleman was speeding; therefore, the initial stop was valid.
Although Coleman was driving a rental car, the fact that a car rental agreement has expired does not deprive the driver of a reasonable expectation of privacy with respect to the contents of the car. See United States v. Henderson, 241 F.3d 638, 647 (9th Cir. 2000); United States v. Cooper, 133 F.3d 1394, 1400-02 (11th Cir. 1998).
Because parolees are subject to the control and jurisdiction of correctional authorities, they generally have a lower expectation of privacy than probationers, because parole is more like imprisonment than is probation. Samson v. California, 547 U.S. 843, 850, 126 S. Ct. 2193, 165 L. Ed. 2d 250 (2006). Although parolees have a diminished expectation of privacy, the historic nature of Kansas parole conditions has led to the requirement that law enforcement officers must have a reasonable individualized suspicion of criminal activity in order to conduct a warrantless search. United States v. Freeman, 479 F.3d 743, 747 (10th Cir. 2007); State vs. Bennett, 288 Kan. 86, 98, 200 P.3d 455 (2009) (adopting the Freeman analysis).
The question presented on appeal, then, is whether, considering the totality of the circumstances, Tatro had a reasonable suspicion that Coleman was engaging in criminal activity. The district court and the Court of Appeals found that the specific grounds for detaining Coleman for an investigative search were his status as a parolee, the expired car rental agreement, and the reports that the drug enforcement unit had “specific knowledge” that Coleman was moving cocaine from Wichita to Hutchinson.
The United States Supreme Court has determined that a search of a probationer is based on “reasonable” grounds when it is based entirely on information “provided by a police officer, whether or not on the basis of first-hand knowledge.” Griffin v. Wisconsin, 483 U.S. 868, 879-80, 107 S. Ct. 3164, 97 L. Ed. 2d 709 (1987). The Supreme Court noted differences between the standards for probable cause and reasonable suspicion and differences between a probationer’s status and the status of the citizenry in general for allowing an unauthenticated police tip to justify such a search. Griffin, 483 U.S. at 878-79. These same differences operate with at least as much force when distinguishing between a parolee’s status and the status of other citizens. The report from the drug enforcement unit and the hearsay report of the parole officer’s concerns about Coleman’s travel habits may therefore in themselves have provided Tatro with a reasonable suspicion that Coleman was engaged in an illegal activity.
In addition, Coleman was driving a rental car with an expired rental agreement. Although Tatro should have attempted to verify Coleman’s explanation that he had renewed the agreement by telephone, the expired agreement may have provided another legitimate basis for a temporary detention. Courts in other jurisdictions have examined this question; most have concluded that an expired rental agreement provides at least some grounds for further detention and search, while a few have reached the opposite conclu sion. See, e.g., United States v. Masterson, No. 2:08-CR-138, 2009 WL 2365334 (D. Vt. 2009) (unpublished opinion); Burks v. State, 362 Ark. 558, 561-62, 210 S.W.3d 62 (2005); Tanner v. State, 281 Ga. App. 101, 635 S.E.2d 388 (2006); Crenshaw v. State, 248 Ga. App. 505, 510, 546 S.E.2d 890 (2001) (fact that driver was driving a car with an expired rental agreement sufficient in itself to establish an objective reason for believing the driver may have engaged in criminal conduct, justifying detention for canine search); State v. Kruip, No. 07-1675, 2008 WL 2902149 (Iowa App. 2008) (unpublished opinion) (driver’s peculiar travel itinerary combined with an expired car rental agreement created reasonable suspicion of criminal activity; expired agreement created reasonable suspicion that defendant was driving without consent of rental company and may have illegally converted car to her own use); State v. Lewis, 980 So. 2d 251, 260 (La. App. 2008); Madden v. State, 242 S.W.3d 504, 517 (Tex. Crim. App. 2007); Sutton v. State, 220 P.3d 784 (Wyo. 2009); Garvin v. State, 172 P.3d 725 (Wyo. 2007). But see United States v. $93,120.00 in U.S. Currency, No. 8:09-CV-374, 2011 WL 1002766 (D. Neb. 2011) (unpublished opinion) (expired rental car agreement, which driver said he had renewed over the phone, along with travel itinerary including travel from drug-source area to a drug-destination area, and a small amount of visible luggage combined with larger carrier on the top of vehicle and trash about the vehicle did not give police reasonable suspicion for detention and seizure); United States v. Billups, 442 F. Supp. 2d 697, 710-11 (D. Minn. 2006) (detention not justified despite expired rental agreement and request from rental agency that officer impound car; car not reported stolen and officer had already concluded expired agreement was not grounds for detaining driver); Enriquez v. State, 97 Ark. App. 62, 66-67, 244 S.W.3d 696 (2006) (arresting officer gave little weight to expired agreement at time of stop and there were no reports the car was stolen).
We have no difficulty in agreeing with the district court and the Court of Appeals that the expired rental agreement, in combination with Coleman’s parolee status and the reports that it was likely that Coleman was engaged in drug transportation, provided Tatro with a reasonable suspicion of criminal activity, justifying a temporary detention and allowing further investigation.
We must now, however, examine whether the detention was of a lawful duration.
In general, parolees have a lower expectation of privacy than probationers and other citizens, because parole is more akin to punishment than is probation. Samson, 547 U.S. at 850. Parole is a variation on imprisonment of convicted criminals, and the essence of parole is the release from prison before the completion of the sentence on the condition that the prisoner obey certain rules while serving the balance of the sentence. Morrissey v. Brewer, 408 U.S. 471, 477, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). For that reason, parole contrasts with probation in that it is meted out in addition to incarceration, not in lieu of incarceration, and parolees enjoy even less of the average citizen’s absolute liberty than do probationers. Samson, 547 U.S. at 850 (citing United States v. Reyes, 283 F.3d 446, 461 [2d Cir. 2002], and United States v. Cardona, 903 F.2d 60, 63 [1st Cir. 1990]). The State’s “overwhelming interest” in supervising parolees justifies privacy intrusions that the Fourth Amendment to the United States Constitution otherwise would not tolerate. Samson, 547 U.S. at 853; see also Griffin v. Wisconsin, 483 U.S. 868, 875, 107 S. Ct. 3164, 97 L. Ed. 2d 709 (1987) (parolee supervision is a “special need” that allows a degree of infringement on privacy that would be unconstitutional if applied to public at large).
While the Samson Court found that California parole conditions allowed the police to conduct suspicionless searches of parolees, the Kansas Legislature and the Parole Board elected to place restrictions on parolee searches. Neither the State nor Coleman have presented this court with documentation setting out the terms of his parole, but it appears that Coleman was paroled in or around 2004, 3 years before the decision in Freeman, 479 F.3d 743. The conditions of parole and Kansas Department of Corrections’ rules addressed in Freeman allowed a search only by parole officers and only on reasonable suspicion that the parolee was in violation of the parole agreement. Freeman, 479 F.3d at 744-45, 748. A search by ordinary law enforcement officers conducted without a reason able suspicion of a parole violation therefore exceeded the scope of reasonable expectations of privacy in two respects. See Freeman, 479 F.3d at 748.
Because, as we determined earlier, Deputy Tatro had reasonable suspicion of criminal activity that would allow him to expand the scope of his original stop, the hmitation that the Kansas Department of Corrections self-imposed would not have prevented a detention for a reasonable time for a search within the scope of the initial stop. Tatro did not, however, conduct an immediate search; he instead detained Coleman for at least 35 minutes while he waited for backup officers and, eventually, a parole officer to arrive.
A traffic stop may not exceed the duration necessary to carry out tire purpose of the stop. Morlock, 289 Kan. at 988-89. In order to justify a detention for questioning, the officer must have a reasonable suspicion that the driver is engaging in or has committed a serious crime and must have a reasonable basis for extending the duration of the detention. State v. Mitchell, 265 Kan. 238, 245, 960 P.2d 200 (1998). Detaining a driver for even a few minutes in order to allow a drug-sniffing dog to arrive unreasonably extends the detention when the officer did not need additional time to ask exploratory questions or to write a traffic citation. Mitchell, 265 Kan. 238.
In the present case, Deputy Tatro detained Coleman for the sole purpose of providing a parole officer with enough time to arrive and conduct a search under the Kansas Department of Corrections’ rules. It is undisputed that Tatro did not have a written arrest and detain order, and the State does not contend that Tatro needed the extended time in order to write a ticket or to verify Coleman’s license or parole status.
K.S.A. 75-5217(a) governs arrests for parole violations. The statute now allows such an arrest based on a verbal arrest and detain order issued by a parole officer. L. 2008, ch. 183, sec. 11, July 1, 2008. The version of the statute in effect when Coleman was arrested, however, allowed a parole officer to deputize a nonparole officer to carry out an arrest by
“giving such officer a written arrest and detain order setting forth that the released inmate, in the judgment of the parole officer, has violated the conditions of the inmate’s release. The written arrest and detain order delivered with the released inmate by the arresting officer to the official in charge of the institution or place to which the released inmate is brought for detention shall be sufficient warrant for detaining the inmate.” K.S.A. 2007 Supp. 75-5217(a).
Addressing the earlier version of the statute, this court held in State v. Anderson, 281 Kan. 896, 909-10, 136 P.3d 406 (2006), that, even in the presence of probable cause, the absence of a written arrest and detain order precluded law enforcement officers from arresting a person as a conditional release violator under that earlier version of the statute.
Deputy Tatro did not have the statutory authority to arrest Coleman as a parole violator. Tatro had no grounds to arrest Coleman for any other reason prior to the parole officer conducting the search that turned up the incriminating evidence. Quite simply put, Tatro had no reasonable and legal basis for detaining Coleman while the officers waited for the parole officer to arrive at the scene. An officer may not arbitrarily detain a driver in order to procure a drug-sniffing dog, Mitchell, 265 Kan. 238, and an officer may not arbitrarily detain a driver in order to obtain the presence of a parole officer.
The evidence seized as a result of the unlawful arrest must be suppressed. See Wong Sun v. United States, 371 U.S. 471, 484, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); Anderson, 281 Kan. at 912; State v. Canaan, 265 Kan. 835, Syl. ¶ 3, 964 P.2d 681 (1998).
Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed, and the case is remanded with directions to the district court. | [
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The opinion of the court was delivered by
Kingman, O. J.:
On the 27th of March, 1866, Fenlon and M. B. Haas entered into a written agreement, that if the said Haas could procure the appointment of post-sutler at Fort Leavenworth Fenlon was to sell him all his stock in trade and goods of every description, in the building occupied by Fenlon as sutler at Fort Leavenworth, at the cost-price thereof, to be ascertained by the invoices of Fenlon, and also to sell him his buildings occupied as sutler’s store, and his dwelling-house at Fort Leavenworth, at a price to be agreed upon by the parties, and if they could not agree on the price of the buildings, it was to be fixed by arbitrators. For this property Haas agreed to pay in cash and in indorsed notes — -the cash to be deposited on the morning of the 28th of March 1866. In case Haas was not appointed sutler the agreement was to be void. On the 31st of March this executory contract, which was entered into by Haas for Haas & Co., was carried out; the goods and buildings were invoiced, and the sum of $18,000 in cash was paid, and notes given for the residue. On the 30th of March Fenlon delivered to Haas a paper of which the following is a copy:
Head-Quarters, Fort Leavenworth, Kansas,
March 30th, 1866.
Special Orders No. 51. Extract.
I. Mr. E. Fenlon having tendered his resignation as post sutler, it is hereby accepted to take effect this date.
II. The sutlership oi the post having become vacant, upon the recommendation of the council of administration Mr. M. B. Haas, of Leavenworth City, is appointed sutler, subject to the approval of the Secretary of War.
By order of Lieut. Colonel Geo. Sykes
Chas. S. Newlon, 1st Lieut. 13th Infty., Post Adjutant.
A true copy:
Chas. tí. Newlon, 1st Lieut. 13th Infty., Post Adjt.
In “ ten or twelve days ” after Haas had taken possession of the goods and buildings he was turned out of possession of the buildings at Port Leavenworth, having been ordered off by the authorities. And this action is brought to recover $25,000 damages sustained by the plaintiffs for the false representations made by Eenlon to induce plaintiffs to make the contract above stated, and for false invoices on the stock of goods. The petition in form states but one cause of action. The false representations of Eenlon as to the appointment of Haas as sutler, and the false invoices, are all interwoven with each other, and with many other statements, as parts of transactions growing out of the contract of the 27th of March, and from all oí which damage to plaintiffs arose. Among other statements this is found: “ And the defendant further contriving and intending, to cheat and defraud the plaintiffs, and to induce them to purchase the said stock in trade, goods, and buildings of and from the defendant, lie the defendant then and there falsely and fraudulently represented to the plaintiffs that he was the post-sutler at Port Leavenworth aforesaid, and that he was the lawful owner of the said stock in trade, goods, and buildings, and had a good and lawful right to sell and convey the same to the plaintiffs; that'his only object in making said sale was that he intended to take a trip to Europe for the benefit of the health of his wife and family, and that M. B. Haas, one of the plaintiffs could and would procure the appointment of post-sutler at Port Leavenworth aforesaid.” On these representations the petition represents that the contract of March 27th was made. This contract was made part of the petition. The substance of it has been already stated. Upon the presentation of the order of the post commander heretofore noticed the contract was concluded. Haas states in his testimony that the. presentation of this order was accompanied by, representations of Eenlon that it was all tbe appointment he needed.
Upon tbe trial tbe defendant objected to all evidence tending to show false representations by Eenlon as to tbe appointment of Haas to tbe place of sutler as an inducement for plaintiffs to purchase tbe stock of goods, buildings, etc., and all evidence intended to show damages to plaintiffs by reason of Haas not retaining tbe position, or not receiving tbe appointment, and representations made by Fenlon to Haas that tbe appointment made by tbe commander at tbe fort was all tbe appointment that was required. Tbe court sustained tbe objections, and tbis ruling in a great number of instances is complained of in tbis court as error. Tbe court also in its charge confined tbe jury to an inquiry as to tbe damages arising from tbe invoicing of tbe goods at a higher price than tbe cost thereof. In these rulings we think tbe court was correct. Tbe evidence did not tend to prove any cause of action for which tbe plaintiffs could recover in tbis case, or in any case. Any evidence that tended to show that Fenlon undertook to procure or aid in procuring tbe appointment of Haas to tbe place of sutler as an inducement to tbe plaintiffs to buy of defendants, and anyrepresontatiouis made by Fenlon of bis power to influence such an appointment, or secure its enjoyment by Haas, or in any way promote or effect such a result, however much confidence tbe plaintiffs may have bad therein and relied upon in making such purchase, could not be tbe basis of a recovery. No matter bow false tbe representations might have been, nor bow much the plaintiffs were damaged by confiding in such representations or promises, they cannot recover for tbe injury. All contracts that embrace stipulations, or are based upon an understanding, that one party is to exert bis influence upon tbe appointment of a public officer, or upon tbe decision of questions affecting prrblic rights, with a view to other considerations therefor than tbe public good, are contrary to public policy, and so inoperative and void: Fuller v. Dame, 18 Pickering, 472; Battle v. Nutt, 4 Peters, 184; Gray v. Hook, 4 N. Y., 449; Nichols v. Mudgett, 32 Vermont, 546; Meacham v. Dow, id., 721; Tool Co. v. Norris, 2 Wallace, 45. Mr. Fenlon had an undoubted right to use his influence to procure the appointment of sutler for Mr. Haas; but he had no right to urge such an appointment from any other motive than the public good. He had no right to accept, nor Messrs. Haas to offer, any. inducement to use his influence in the appointment, because such consideration placed Mr. Fenlon under wrong influences, and offered him a temptation to do that which might injuriously affect the public interest. Nor is the character of the transaction in any way changed because the inducement was an advantageous contract instead of money. Either comes within the rule, and is equally obnoxious. "While the law will not hear the parties to such a contract, neither can it entertain causes of action embracing negotiations leading to such a contract, as representations falsely made to bring it about. The law leaves the parties to such a transaction where it found them, and will not attempt to adjust the rights between them. If one party has suffered by the bad faith of another in such a case he has no redress in the courts. It is precisely such a prohibited contract that, so far as the sutlership was an inducement thereto, was the moving cause of the representations the injurious falsity of which is one of the grounds of action in this case, and to establish which the rejected testimony was offered. It is true that the questions were skillfully framed so as to avoid, as far as possible the objection on this ground; and some of them taken singly may not be open to this objection; but such questions were not relevant to the only issue that could be tried, and if not obnoxious on the ground that they were intended to elicit proof of an illegal contract, or representations that led to one, still that were properly excluded as not pertinent ,to any other issue. This conclusion disposes of the main point in the case.
Other errors are alleged, only one of which we deem it necessary to notice. The answer, except as to the execution of the written contract, was a general denial. The defendant under this answer was permitted to introduce evidence tending to prove that at the time the purchase was completed $300 or $400 of the purchase money was “ thrown off” the cost prices of the goods by Eenlon, and that afterwards $3,000 of one of the notes given by Haas & Go. for the goods was also remitted by Eenlon. There was evidence to show for what purpose this .was done, and although it was uncertain, it was enough for the jury to infer that the first sum, and possibly the last, was thrown off to cover mistakes generally in the invoice. It is conceded that this evidence was not admissible to prove an accord and satisfaction, a payment, or set-off, or a counterclaim; but it was certainly admissible so far as it was shown that the sums were thrown off or remitted to cover any mistakes in the invoice, and that such was the purpose for which it was done, by an understanding of the parties at the time. Supposing it had been established that the amount of the cost as footed up was $200 too much: could not the defendant show under a general denial that $300 had been deducted from the amount by an understanding that it was to cover such a result? Such testimony only showed what the goods really sold for, and was in no legal sense a set-off. And to this extent the evidence was admissible, and to this point and this only was it carefully confined by the instructions of the court. The judgment is affirmed.
Yalentine, J., concurring. | [
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Tbe opinion of tbe court was delivered by
Brewer, J.:
This case, like tbe case of tbe same plaintiff in error against Milliken, just decided, was an action by an employee against bis employer, for injuries resulting from tbe alleged negligence of a co-employee. Botb cases were tried at tbe same term, before tbe same court. In botb tbe permanent injury was tbe same, tbe loss of a band, and happening while ■engaged in tbe same kind of service, that of attempting to couple cars. Tbe two verdicts were respectively nine and ten thousand dollars. Tbe first and last points considered in tbe opinion filed in that case exist in this, and tbe remarks there made apply with equal force bere.
One other point in this case may be noticed. Tbe petition, after alleging that tbe injury resulted from tbe negligence of tbe engineer, charges “ that said defendant was at said date informed and fully aware that tbe said engineer bad been for a long time theretofore and was then totally incompetent to perform tbe duties of an engineer, was careless, negligent, and reckless.” There was no allegation that be bad been employed without reasonable inquiry as to bis fitness. Tbe issue tendered was as to bis continuance in service after knowledge of unfitness. True, these two allegations are equivalent, that is, equal in results. Each is equal to the other in fixing liability. Botb may be alleged, and proof of either one would be sufficient. But though equal in results, they are not tbe same. They present different facts, involve distinct inquiries. An allegation of one tenders no issue as to tbe other, and opens tbe door to no inquiry concerning it. Nor is an allegation of tbe one supported by proof of the other. Tbe court below, as though tbe allegation was of employment without reasonable inquiry as to fitness, gave this instruction:
“It is tlie duty of the defendant, by its proper officers, to use diligence in the selection of its engineers; and if the jury believe from the evidence that Crane was not a fit or a competent person to act as engineer, and that defendant employed him to act as engineer for it, and placed him as such engineer in charge of a locomotive to make up or run a train of cars, without having, by its proper officials, used due diligence in the matter of determining whether said Crane was fit or competent to act as such engineer, then if the jury believe from the evidence that in consequence of want of skill or care arising from such incompetency on the part of said Crane, the hand or wrist of the plaintiff was, without negligence on his part, crushed while he was attempting to couple cars of said defendant’s in a train being made np on its road, or a switch or turnout thereof, of which said Crane was for said defendant acting as engineer, and that the plaintiff was at the time at the instance of the proper officers of said defendant assisting in making up such train, they must find for plaintiff and assess his damages at such sum as the jury believe from the evidence he sustained thereby.”
And the court refused to give the following instruction:
“The burden of proof is on the plaintiff to show the fault in the defendant specified in the petition. The fact of his injury does not prove it. It must have been proved in the case that the engineer was not only incompetent, but that such an incompetency was known or ought to have been known by the defendant.”
A ruling opposite to that made upon these two instructions would have been more correct. The judgment will be reversed.
Yaijenttne, J., concurring. | [
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The opinion of the court was delivered by
Kingman, C. J.:
This was a petition for partition. An attempt was made to serve the defendants (plaintiffs in error,) by publication. The first publication was made on the 17th of February, 1870, notifying the defendants to answer on or before the 31st of March. On the 29th of March, two days before the answer-day, and before the service was complete, judgment was rendered. On the 20th of June thereafter Parker, on due notice given, moved the court to set aside the judgment. This motion was overruled and excepted to. This motion should have been granted. The judgment was rendered before the cause stood for trial, and before the plaintiff in error, Parker, was in default. Code, § 74. The motion was made in time, (§ 669,) on the ground indicated, and was broad enough to include the cause on which we have decided the case.
This decision disposes of the case. Some of the other alleged errors in the publication are not now in controversy as to the parties now before this court, as the motion made on the 20th of June was such an appearance as to Parker as to waive any defect in the publication, if such existed. The affidavits of Parker and Elder, and the prepared answer of Parker, although ■in the transcript, are not a part of the record. They could only be made so by a bill of exceptions.
The judgment is reversed with directions to grant the motion to set aside the judgment and permit Parker to answer, and for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
YAtENroíB, J.:
Several questions are raised in this case, among which is the one whether a certain voluntary assignment made by James Eobb and Yincent O. Eobb, partners as “ Eobb Brothers,” to ¥m. H. Clark, for the benefit of the creditors of said Robb Brothers is valid. If this question be answered in the negative, as we think it must, such answer will virtually dispose of all the other questions, for then, in whatever way the other questions might be answered the same result would follow — the judgment below would necessarily have to be affirmed.
By said assignment' Robb Brothers assigned to Clark a certain store containing boots and shoes, hats and caps, etc., “saving, excepting and reserving from their stock of boots and shoes, hats and caps, goods, wares and merchandise, property to the value of $400 each, which said James Robb and Yincent C. Robb, parties of the first part, shall elect to retain as stock in trade under the laws of the state of Kansas exempting certain property from sale on execution or other process.” In whatever aspect this assignment may be viewed, it-is void. If it be considered that the assignment transferred all the said goods to Clark for the purpose that he should hold them in trust for the Robb Brothers until they should receive $800 worth of the same, and then that he should hold the remainder, if there should be any remainder, in trust for the creditors of the Robb Brothers, such assignment would be void: Gen. Stat., 504, § 1; Kayser v. Heavenrich, 5 Kas., 324. In the case of Kayser v. Heavenrich the doctrine is laid down broadly that “ A voluntary assignment by an insolvent in trust for his creditors, which reserves to the assignor any benefit or advantage out of the property conveyed to the injury of the creditor, renders the assignment void.” In this case $800 worth of the very property assigned is reserved for the benefit of the assignors, and every article of the same is subject to their claim until they make their election as provided by the assignment. But if it be considered that the assignment transferred only an interest in the goods to Clark, constituting him a tenant in common with the Robb Brothers, still the assignment would be void. Viewing the assignment in this light, while the interest of the Robb Brothers may be considered to some extent fixed and definite, the interest of Clark is only contingent, and very indefinite and uncertain. Their interest is $400 each, or $800 in the aggregate; his interest may be nothing, or it may be $1,000. There is nothing in the assignment that shows the goods were worth more than $800; and there is nothing to show what they were considered to be worth by the parties. What proportion of the goods were the Eobb Brothers to retein? How was it to be determined how many of the goods they should receive for $800 ? Who was to fix the value of the goods they should elect to retain? None of these questions were definitely answered by the assignment. Perhaps it was all to be left with the Eobb Brothers themselves. If so, who would suppose the assignment to be valid? Certainly, whatever interest Clark may have had in the goods, there is no provision in the assignment for separating it from the interest of the Eobb Brothers, except by the election of the Eobb Brothers themselves. Clark was to have only the remainder, or surplus over, after the Eobb Brothers had elected what,articles or portion of the goods they would retain. But suppose they should never elect, or should delay electing for an unreasonable time? What would be Clark’s remedy? Would • he resort to a long and tedious litigation to compel them to elect? and if so, would an assignment which should put it in the power of the assignor to hinder,.delay, and postpone his creditors for such an unreasonable time be valid in law? (Gen. Stat., 504, § 2.) And what other possible remedy would Clark have? If this view of the assignment is the correct one Clark did not become the owner of a single article of all the goods that were assigned to him; nor did he even obtain any absolute interest in a single one of such articles. Suppose that he had taken possession of some such article and said, “ Here, I will take this article and dispose of it according to the terms of the assignment, for the benefit of the creditors of Eobb Brothers.” The Eobb Brothers might have answered, “ No, we shall elect to retain that article as a portion of our $800 worth of the property assigned ” — and thereby they would not only have defeated Clark’s claim of title or ownership respecting said article, but they would also have eradicated every vestige of the interest which he may have supposed he had in tbe same. Clark’s interest in tbe goods was a contingent and uncertain interest of about nine or ten hundred dollars, aa appears from tbe evidence. After tbe assignment was made, and before tbe goods were attached, be sold a few of tbe goods, and James Robb sold a few, but bow many either sold is not shown. “When tbe goods were attached they were worth $1,676.10. Tbe rent of tbe store room, tbe taxes, and certain other expenses were however by tbe terms of tbe assignment to be paid out of tbe proceeds of Clark’s interest, which would of course reduce tbe value of Clark’s interest to some extent. But thirdly and lastly, if it be considered that tbe assignment did not transfer any of tbe property or any interest in any of tbe property to Clark, then of course tbe assignment must be void. In any view of tbe case we think tbe assignment was void rrpon its face. For tbe authorities, see counsels’ brief, and also Burrill on Assignments, 179 to 183, and 228 to 232, and cases there cited. Tbe judgment of tbe court below is affirmed.
All tbe Justices concurring. | [
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The opinion of the court was delivered by
Kingman, C. J.:
The plaintiff in error brought his action on a note and mortgage. The mortgage contained this clause: “ The mortgage to one Steele, and all other incumbrances, if any, on said land are to be fully paid and removed from said land by said E. Stewart, his heirs or assigns, before any further payments are to be made on this note and mortgage.”
The only question for decision was whether there was any incumbrance on the land. The taxes for 1862 were all paid except twenty-five cents road tax. The defendants having shown that fact, rested; and the court decided that the same was an incumbrance, and decided that no right of action had accrued. Unpaid taxes levied on land are an incumbrance on the land. Long v. Moler, 5 Ohio St., 271; Mitchell v. Pillsbury, 5 Wis., 407; Hutchings v. Moody, 30 Vt., 655.
The counsel for plaintiff in error shows by an examination of the several laws of that date, that the road tax for 1862 would appear on the tax roll of 1863, which are shown to have been paid. Yery well; admit he is right, and it is apparent that the unpaid road tax appearing on the roll in 1862, was the delinquent road tax of 1861, which was rightfully on the roll for 1862; and this is as much an incumbrance as though it were for another year. The judgment is affirmed.
Yalentine, J., concurring.
Brewer, J., not sitting in the case. | [
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The opinion of the court was delivered by
Brewer, J.:
A great many questions are presented by the record in this case, and .in some of them we find such errors as .will compel us to send the case back for another trial.
I. When the case was called for trial the regular judge declined to sit as he had been of counsel in it. Plaintiff in error then applied to have the place of trial changed to some county where such objection did not exist. This applica- ” , ,. .. .. tion was overruled, and the election ot a mclge ? J ® <pro tem. ordered and had, and the trial proceeded with under such judge pro tem. Section 56 of the civil code as amended in 1870, (Laws 1870, p. 171, § 2,) provides that— .
“ In all cases in which it shall be made to appear to the court that a fair and impartial trial cannot be had in the county where the suit is pending, or where the judge is interested or has been of counsel in the case, or subject-matter thereof, or is related to either of the parties, or is otherwise disqualified to sit, the court may on application of either party change the place of trial to some county where such objection does not exist.”
This is the latest expression of the legislative will on this subject; and upon it three questions are presented. First: Does the word “may,” as here used, require a construction equivalent to “must,” or is it merely a term of permission, leaving it optional and discretionary with the court to grant the change or not? The use of the word “may” in the sense of “ must ” is frequent in the law. It is not always easy to determine in any given case whether it is used in such sense. The rule as laid down by Chancellor Kent in Newburg Turnpike Co. v. Millar, 5 Johns. Ch., 113, is, that “the principle to be deduced from the cases is, that whenever an act to be done under a statute is to be done by a public officer and concerns the public interests or the rights of third persons which requires the performance of the act, then it becomes a duty on the officer to do it.” Sedgwick in his work on Stat. & Const. Law, p. 439, says: “That no general rule can be laid down upon the subject further than that exposition ought to be adopted in this as in other cases, which carries into effect the true intent and object of the legislature in the enactment.” Tried by either of the tests suggested by these eminent jurists and it is plain that here “may ” is to be construed as equivalent to “must.” The act to be done is one which affects materially the rights of third parties, rights which cannot be secured otherwise than by its performance. It is not an act for tbe benefit of tbe court, or tbe judge of tbe court, or which affects his rights. Therefore, according to Kent, when the circumstances arise for the doing of such act it becomes a duty, not an option, nor a discretion, with the court. Again, the evident intent of the legislature requires that we here construe “ may ” as “ must.” By this statute different contingencies are presented under which a change of the place of trial may be had. One is when it appears that a fair and impartial trial cannot be had in the county where the suit is pending. Under such a condition of things as that it cannot for a moment be supposed that the legislature meant that it should be opitional with the court whether to change the place of trial. As soon as the fact appears to him, and his judgment is convinced that a fair and impartial trial cannot be had in the one county, then it becomes an unquestioned dixty, made imperatively so by this statute, to transfer the case to another. Any other construction than this would be an imputation upon the legislature. But no distinction is made as to the "obligation to change between the different conditions for change. The word “ may ” is used but once, and refers to all the different conditions. If when a fair and impartial trial connot be had, a change must be made, so equally must it be when the judge is interested or has been of counsel. Second: It is urged that § é of eh. 28, Gen. Stat., provides for the election of a judge jpro tem. when the regular judge is interested or has been of counsel; that this section has not been repealed, and that, though the law of 1870 be a subsequent enactment, yet a fair construction, seeking to harmonize both, and to give effect to each, would leave it discretionary with the judge whether to change the place of trial, or order the election of a judge joro tem. The two sections are materially different, and provide for distinct contingencies. The law of 1870 operates only upon the application of one of the parties. The provisions of the general statute are vitalized by the mere disqualification of the judge. "When a case is for trial, if the judge has been of counsel and neither party moves in the matter, he orders the election of a judge yyro tem. under § 4 of ch. 28 above cited. If however either party desires, he may apply under the law of 1870, and by that is entitled to a change of the place of trial. The two acts harmonized do not vest a discretion in the judge, but grant a right to the parties. It is not left with him, but with them to decide whether to proceed under a judge pro tem., or to take a transfer. The law of 1870 thus adds a condition which is not in the General Statutes. It is not harmonizing, it is legislating, to ignore this condition, and then leave to an officer the choice as to which statute he will act under, especially when such choice might materially affect the rights of a party. Thwd: It is claimed that § 20 of art. 3 of the constitution affects this question. That section reads:
“ Seo. 20.-Pro vision shall be made by law for the selection, by the bar, of a pro tem. judge of the district court, when the judge is absent or otherwise unable or disqualified to sit in any case.”
In pursuance of this constitutional provision § 4 of ch. 28 of the General Statutes heretofore cited was enacted. It authorizes the election of a pro tem. j udge under the circumstances named. Now this constitutional provision can affect this question only for one of two reasons — either because it restricts the power of the legislature to dispose of a case pending in a court whose judge is disqualified to try it, or becairse in such a case it guarantees to a party litigant a trial in the same court before a judge pro tem. It is not in terms a denial of power. It does not purport to withhold or limit. Nor is it couched in the form of a grant. The act required, is an act of legislative power. It would pass to the legislature under the general grant. 'Without it, unless restrained by some other clause of the constitution, the legislature could do just what it has done and what it is authorized to do under this section. If therefore it neither grants power otherwise reserved, nor restricts power otherwise granted, why was it incorporated into the constitution, and what function does it perform? It is directory in its nature. It calls the attention of the legislature to a particular subject, and imposes a duty in that respect. It emphasizes the will of the people in reference to certain legislation; and being such, we know no reason for construing an imposition of duty as a restriction of power. It may be also that without this provision, the section of the constitution requiring district judges to be elected by the people would prevent the election of a judge pro tem. by the bar. It is not self-operative. It gives no rights to litigants except through legislative action. Until such action there would be no warrant for the election of a judge pro tem.; and the repeal of the law would take away any authority for such an election. How then can it guarantee to a suitor the right to a trial before a judge pro tem.? These considerations have led us to the conclusion that the district judge erred in refusing to change the place of trial. Ye see the hardship which may result in some eases, and think the rule ought to be as the district judge held it to be, that the court should have a discretion whether to change the place of trial or order the election of a judge pro tem. But we must take the law as we find it. Ye must ascertain and declare the legislative will as recorded, and if the rule that body has established be a harsh one, it alone has the power to alter it.
II. The contract alleged an the petition and proved was to transport cattle from Ogden to State Line. It was claimed that through delay in the transportation they had depreciated in value; also, that through the improper and negligent liandthem by the employees of plaintiff in error during their transportation they had suffered injury. regard to the depreciation by delay in transportation, it is not claimed that cattle were of less value at State Line in the evening than in the morning of the 8th of January, but that cattle are constantly shrinking in weight during confinement and transportation in cars, and the longer the time of carriage the greater the shrinkage. No fall of price is claimed, but simply a diminution of quantity. If the jury found these facts against the plaintiff in error, what then became the rule of damages % Unquestionably, the difference between their value at State Line and at the time and in the condition of their delivery, and the value tliey would have liad at the same place if transported without delay or injury. Sedgwick, in his work on damages, p. 279, says: “Where a given place is fixed on by the parties as that for delivery, it seems to be well settled that the inquiry as to prices is limited peremptorily to that particular place.” See also 2 Ark., 397; 18 Ill., 155; 8 Pick., 9; 4 Kas., 481. The learned judge who tried this case, in his instructions to the jury, recognized the correctness of this rule and gave it to them for their guidance in estimating the damages. But during the progress of the trial he permitted the defendant in error to show, over objection, what became of the cattle after they reached State Line, that they were forwarded to St. Louis, the time occupied in shipment, the manner of transportation, the disposition made of them in St. Louis, the price at which they were sold there, their value in the condition they were when they reached St. Louis, and the value of cattle in good condition at that place. Indeed, the bulk of the testimony as to prices and values had reference to the St. Louis market. The only witness who testified as to the value at State Line, Stacey Seymour, one of the plaintiffs, on cross-examination declared: “I don’t know what our cattle were worth at State Line, or would have brought on the 8th of January.” The cattle were due at the State Line on the morning of the 8th, and reached there during the night following. In permitting this range of testimony we think the court erred. The value of the cattle at a subsequent time, and in a different market, might be affected by many considerations. Yalues change in proportion to the demand and supply. A few days might make material alteration. The treatment received, and the care and attention bestowed subsequent to the delivery at State Line would of course affect their condition and value. The range of inquiry would be widely extended, and the attention of the jury distracted by the multitude of questions from the material fact. The plaintiff in error could not be supposed to keep track of the cattle subsequent to their delivery, or be prepared with testimony as to the care and treatment they thereafter received. If their value three days after in the St. Louis market was proper subject of inquiry, wby not their value a week after in the city of New York, or a month after in the Liverpool market?
III. At the request of plaintiff in error the court submitted certain questions of fact to the jury, and directed a written finding thereon. Seven questions were thus submitted. To five of them the jury returned only this answer— o o « “Unable to agree.” A general verdict was also ren- , ° ° , dered. This verdict and answers the court received, and upon them rendered judgment. Under the code of 1868 it was discretionary with the court whether to require findings upon particular questions of fact when a general verdict was returned: Gen. Stat., p. 684, § 286. Under that law it might be that the court could properly receive and act upon a general verdict, even though no finding was returned upon any of the particular questions submitted. At least such seems to have been the ruling in New York. In Moss v. Priest, 1 Robt., 632, a case in which the jury failed to return any answers in writing to the particular questions submitted, Bobertson, J., says: “ Being a matter of discretion, I apprehend the court can withdraw the discretion at any time before the special finding is given, and the'general verdict can be received without it. No vested right is acquired by either party to have the findings given, because the court had once so directed it.” But by the amendment made in 1870 to our code, (Laws 1870, p. 173, § 7,) this which was before a discretion with the court has become a right of either party. It is made the duty of the court upon the request of either party “ to instruct the jury if they shall render a general verdict to find upon particular questions of fact, to be stated in wilting, and shall direct a written finding thereon.” The right of a party to these special findings is absolute. It cannot be withheld by the court By another section of the code these sjiecial findings, if inconsistent with, control the general verdict. So it is a substantial right. It is secured only when the jury have returned written findings to all the questions submitted. “Unable to agree” is no finding. The report of the jury is as incomplete without answers to the particular questions as it would be without a general verdict, excepting in this, that upon a general verdict without answers to particular questions a judgment could always be rendered disposing of all the issues, whereas upon answers to particular questions without a general verdict no judgment could be rendered disposing of all the issues, unless all the questions involved were specially submitted. In other words, findings of fact need not always embrace all the questions at issue. A verdict so incomplete should not be received as a verdict at all. If the jury cannot agree upon the particular questions, they should be discharged, and the case submitted to a new jury, precisely as though they were unable to agree upon a general verdict. But it may be said that a party might desire to have immaterial questions submitted. Then the court should not submit them. The right of a party to findings upon particular questions is only a right to findings upon questions material in the case. He cannot pass outside of those facts which are essential to and determine some portion of the claim or defense. His rights are limited by the questions at issue. True, he is not restricted to those general, elemental facts found in a special verdict, but he cannot go out of the case, nor even within the range of the testimony, and insist upon the submission of a question whose answer can in nowise affect the rights of the parties or the result of the suit. No court should permit the record to be encumbered with trivial and immaterial, questions. It would be as improper to submit a question of fact not. involved in the case, as to instruct upon an abstract proposition of law foreign to the issues.
IY. A special contract of shipment was proved. It provided that the company is “hereby released from all liability for damages of whatsoever kind that may happen during the transit. This company do not assume to transport stock in any given time.” Upon this contract hinges this case. It was claimed by the plaintiff in error that as to these cattle it was not a common carrier — that it could make any conditions of shipment it saw fit; that the contract as signed stated the full measure of obligation it assumed, and hence that it was not liable for any supposed injuries, whether caused by negligence or delay, in transportation. Counsel for plaintiff in error says in his brief, using the language of Judge Christiancy in the ease of the Mich. S. & North. Ind. R. R. Co. v. McDonough & Andrews: “The company were not bound to receive or transport cattle or hogs as common carriers, and subject to the liabilities attached to that character; but they might legally refuse to convey them in that or any other capacity. And having the right to refuse altogether, they must have the right to refuse except upon such terms and conditions as they saw fit to require; and these conditions might, I think, be fixed by special contract, or by notice, or by their uniform course of doing that branch of business.” That the questions involved herein are of vital importance in this state is obvious. The immense and constantly increasing transportation of cattle from the states and territories south and west of us over the railways of this state, our extensive prairies and plains with nutritious grasses and ample pasture foreshadowing in the future stock-raising as the main business of the farmer, combine to give to these matters paramount interest. Upon the trial the presiding judge refused instructions asked by plaintiff in error embodying the claims above presented, and in lieu thereof laid down the law thus:
“ It will be advisable for you first to determine whether the railway company was a common carrier; and I instruct you that a common carrier is one who undertakes for reward to transport the chattels of such as choose to employ him for that purpose; and if this company, at the time when they received the cattle in question, were in the habit of transporting the cattle of such parties as applied to them for such services, I instruct you that they are to be regarded as common carriers of cattle at that time. * * * From all the evidence touching the question yon will determine whether yon are reasonably satisfied that the company were common carriers of cattle. If you find that they were common carriers of cattle, I instruct you, that since there is no charge of misfeasance or malfeasance, the defendant is exonerated by the writing, which styles itself a release, from all liability for any damages arising from any causes except such, if any, as arose from their own negligence; and I further instruct you that they are liable for any and all damages accruing from their own negligence, if any such you find.
“ If you believe from the evidence that one of the plaintiffs, with a servant under his control and direction, assumed the care and management of the cattle while in the cars, the defendant is not liable for any damage 'which such plaintiff and servant could have prevented by reasonable care and exertion, although the same may have occurred from defendant’s negligence.
“ If you believe from the evidence that it was the duty of the defendant to unload, or to provide feed and water for the cattle at State Line, the defendant is liable for any damage that may have occurred from any unreasonable delay in providing them, after their arrival, or unloading, as the case maybe; and yon will' judge whether the evidence reasonably satisfies you that the train arrived about 9 o’clock p. m.; that the cattle remained-until 11 o’clock, in the cars; that forage was obtained at 12 o’clock, and water about 1 o’clock, as testified by Williams; and it is immaterial whether the company kept its own supplies of those articles, and their own servants for their disposition, or whether they relied upon other parties to furnish them, under their patronage. You are to consider what Tompkins, and other witnesses, say about the practice and necessity of feeding and watering at that place.
“The defendant is liable for any damage suffered by the plaintiffs by reason of any negligence of defendant in the hauling and conduct of the train on which the cattle were carried, as well as for negligence in providing necessary wayside conveniences.”
Did the plaintiff in error act in the capacity of a common carrier in the transportation of these cattle, or was it entitled to the instruction refused, “ that it did not transport the cattle in question as a common carrier?” It transported them either as a common or a private carrier. Two vital distinctions in the measure of duty and responsibility incurred by carriers are these: The common carrier must carry for all who choose to employ him. The private can accept the goods of one and refuse those of another. The' common carrier insures against all loss save that caused by the act of Glod, or the public enemy. The private carrier is responsible only for ordinary care. Hence, whether the company was a common or private carrier is obviously vital. An idea seems to be obtaining in some directions that so far as regards the transportation of live stock railroad companies are not common carriers. This is countenanced by the dicta of several judges, and by some decisions. To this doctrine we cannot give our assent. It seems to us that whenever and in so far as they assume to transport property they do so as common carriers. The sole purpose for which railroads are built is transportation. The only legitimate business in which they can engage is transportation. They perform a public duty, are engaged in a public employment, and subserve a public use so far, that, as established by the decisions of this court as well as those of the highest courts of many other states, taxation of the community in aid of their construction can be sustained. Above all other carriers are they dignified by judicial decisions as public agencies. Alone of carriers have they obtained public assistance. It is with ill grace then that they seek to avoid the responsibility which is assumed by all others who engage in the business of transportation. Eeceiving funds of the public to aid in construction, and then claiming to be simply private carriers in transporting for that public, presents an unseemly contradiction. Tried by all the definitions in the text-books and approved decisions, railroad companies are common carriers in reference to all property they assume to carry. Chief Justice Parker in Dwight v. Brewster, 1 Pick., 50, defined a common carrier to be “ one who undertakes for hire to transport the goods of such as choose to employ him from place to place.” Edwards in his work on Bailments says: “To constitute him a common carrier he must be one who as a regular business, undertakes for hire or reward to transport the goods of such as choose to employ him, from place to place.” Story says “ he must undertake to carry goods for persons generally; and he must hold himself out as ready to engage in the transportation of goods for hire, as a business, and not as a casual occupation pro hoc vice.” To the same effect are the definitions given by Angelí, Kent, Bouvier, and others. Can anything be plainer than that within the scope of these definitions a railroad company is a common carrier? Transportation is its business, not a casual occupation. How frequently has it been mulcted in damages for refusing to receive and transport passengers upon equal terms? This could never be sustained if it was only a private carrier. As a common carrier it is entitled to all the privileges, and subject to all the conditions and obligations which belong to such employment. Among these is this: One may be a common carrier in reference to certain classes of goods without being under any obligation to transport a different class. He is not under obligations to transport such goods as his vehicles are not .suitable to carry. A light express wagon employed as a business in carrying small parcels from one part of a city to another, is engaged in the business of a common carrier; yet no obligation rests upon the proprietor to carry in it a piano or other heavy bulky article, whose size and weight would endanger his vehicle; nor is he under obligation to provide vehicles suitable for the transportation of such goods. It is enough if he receives and carriers such goods as are suitable for his vehicles. As Baron Parke said in Carr v. The Lancashire & Yorkshire Rly. Co., 7 Excheq., 711: “ Most certainly every common carrier is bound only to carry the goods of that description which the public calling requires him to carry. That is established by the case of Johnson v. The Midland Rly. Co., 4 Excheq., 367.” See also Judge Denio, in Wilbert v. N. Y. & Erie R. R. Co., 12 N. Y., 245: “ A carrier may lawfully refuse to receive goods offered for transportation, because his coach is full, or because he has not the means of transporting such goods: Morse v. Slue, 1 Vent., 190-238; Lane v. Cotten, 1 Ld. Raymond, 646, 652; Story on Bailments, § 508.” By this rule railroad companies, like other common carriers, unless restricted by some requirement of their charter, or the statutes, not having vehicles suitable for, nor holding themselves out as engaged in the business of carrying cattle, may lawfully refuse to transport them. But this is a qualification incident to the business, common to all carriers and not limited to any particular species of property.
It is claimed there is a difference between live stock and other property as to the responsibility assumed by a carrier in its transportation; that the voluntary motion of the stock introduces an element of danger into the transportation against which neither reason nor authority require that the ,carrier insure; that inasmuch as it is customary that the shipper, or some one for him, accompany the stock, there is only a qualified or partial delivery to the carrier; and also, that proof that a railroad company has suitable cars and is engaged in the business of carrying cattle is not proof that it is a common carrier as to such cattle, because to insure their safe transportation requires yards and stables, with conveniences for feeding, both at the termini and along the route, as well as a corps of experienced stockmen to take care of them in the transit. These last as it seems to us are duties incident to the employment, and not elements to determine its character. Engaging in the business of transporting cattle, it becomes a duty to provide every suitable facility therefor. Not the manner of doing the work, but the fact of engaging in the business, is the test laid down in the books for determining the character of the carrier. A proper system of brakes is necessary on every passenger train to insure the safety of those on board. Is it not enough to show that a railroad company has passenger coaches, and is engaged' in the business of carrying passengers, to establish its character as a common carrier? Must it also be shown that the train is provided with a proper system of brakes, and all the other requisites of safety? Would proof that these were wanting diminish the responsibility of the carrier? Will failure of duty lessen the obligation? If we were to take judicial notice of the fact that the shipper or some one for him goes with the stock to take care of it during transportation, we should also be compelled to take judicial notice that the shipment is, as in this case, by special contract. The company thus limits responsibility, and the shipper assumes more of the risk. That the voluntary motion of the stock increases the risk of transportation, is evident. But increase of risk does not diminish responsibility. It calls for more care. There is more risk in carrying mirrors than railroad iron. The carrier’s measure of obligations is the same. Petroleum, gunpowder, and nitro-glycerine, particularly the latter, are very dangerous to transport; yet if one engages in the business of carrying them, does he not assume the obligations of a common carrier. That a contract by which a shipper assumes all risk from the action of the cattle themselves, is a reasonable one, cannot be questioned. It may be that without any special contract the law ought to be so changed that such risk be assumed by the shipper; but such change must it seems to us be made by the legislature, and not by the courts. It is said that the carrier of slaves did not insure their safety, and that cattle should be placed upon the same footing as slaves. That earners of slaves were not insurers, was, it is true, the nearly uniform ruling of courts: 2 Pet., 150; 4 McCord, 223; 4 Porter, (Ala.,) 234. It was a ruling growing out of the anomalous character of the institution, rather than logically sustained by the rules of the common law. Slaves were held to be passengers. It would hardly do to say that cattle were passengers, and that the measure of obligation in their transportation was the same. On this general subject the language of Judge Ranney in the case of Wilson v. Hamilton, 4 Ohio St., 722, is in point: “We have been no more fortunate in finding any sufficient support for the position that the responsibilities of a common carrier in respect to other property do not attach to the carriage of living animals. No such distinction has anywhere been recognized. The contrary is expressly laid down by the elementary authors to which I have referred, as well as in several of the cases cited; to which may be added others: Angelí on Carriers, § 214; Story on Bailments, § 546; Stewart v. Crawley, 2 Stark, 323; Porterfield v. Brooks, 8 Humph., 497; Palmer v. Grand Junction Rly., 4 M. & Welsby, 749. This qitestion has within a few years, from the great numbers of domestic cattle now carried from the west to the east, by land and water, assumed a very decided importance; bxxt we can feel no hesitation in declaring that those who undertake their transportation take upon themselves the obli gation to deliver them safely against all contingencies, except such as would excuse for the non-delivery of other property.”
The conclusion then to which we have arrived is, that a railroad company engaging in the business of transporting cattle assumes all the responsibilities of a common carrier. It insures against all loss except that caused by the act of God, or the public enemy. If it would relieve itself of this responsibility it must take the same steps as in the transportation of any other property. It may do this by special contract, but such contract never relieves against negligence: 26 Vt., 247.
Y. The court refused the following instruction asked for by plaintiff in error:
“ Where carriers have restricted their liabilities by special contract and acceptance by the shipper, the burden of establishing the fact of negligence is upon the plaintiff.”
And of its own motion thus charged the jury:
“ From all the circumstances, satisfy yourselves as well as you can on these points, if you award damages; and remembering that in this, as in the rest, except as to the negligence, the burden of proof is upon the plaintiffs.”
This is wrong. The contrary rule was laid down in Kallman v. The U. S. Ex. Co., 3 Kas., 205. In that case Judge Safford, speaking for the court, says: “But when carriers have once succeeded in restricting their liability by special contract or acceptance, where does the burden of proof rest as to the question of negligence? The authorities seem to be clear and uniform on this point, that the burden of establishing the fact of negligence is upon the plaintiff.” This states the law as we understand it.
We have thus examined all the questions we deem likely to arise on a subsequent trial of the case. For the reasons given the judgment of the district court will be reversed, and the case remanded with instructions to sustain the application for a change of the place of trial
All the Justices concurring.
[* See National Bank v. Peck, post, 660, where this whole subject is fully discussed, and the statute construed.]
[ * In tlie case of Kansas Pacific Rly. Co. v. Nichols and Kennedy, decided in this court at the January Term, 1872, and to be reported in 9 Kas., the common-law liability of railway companies as common carriers is discussed at length, and somewhat in reply to the argument of the Michigan cases deciding against such liability. The supreme court of Kansas there, as here, affirms such liability. — Reporteb.] | [
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|
The opinion of the court was delivered by
Nuss, C.J.:
A jury convicted James Simmons of two counts of rape and one count of misdemeanor theft. Simmons appealed several issues, including five claims of prosecutorial misconduct during trial. The Court of Appeals affirmed Simmons’ convictions. We granted Simmons’ petition for review under K.S.A. 20-3018(b) on the prosecutorial misconduct claims only, obtaining jurisdiction under K.S.A. 60-2101(b).
We hold that prosecutorial misconduct denied Simmons a fair trial; we reverse and remand for a new trial.
Facts
On August 5, 2006, Simmons attended a house party in Pitts-burg, Kansas. According to A.H., Simmons tried to strike up a conversation with her, but she told him to leave her alone. Simmons persisted, and this prompted A.H. to leave the party at 2 a.m. and walk home alone.
A.H. testified that during her walk, an unknown car pulled up alongside her on a dimly lit street. A man left the car, ran toward her, grabbed her hair, and ordered her into the car at gunpoint. Once inside, the dome light illuminated the man’s face, and A.H. recognized Simmons as her captor. Two persons unknown to A.H. were also in the car.
According to A.H., she was taken to a house she did not recognize where Simmons directed her into the bedroom. Simmons ordered her to undress. After she disrobed, he forced her to perform oral sex on him. He later told her to lie on her back while they had vaginal intercourse. Later that morning, Simmons ordered A.H. back into the bedroom. There he performed oral sex on her, followed by vaginal intercourse. A.H. testified that she was not allowed to leave the house, later identified as Jesse Switzer’s, and that all the sexual acts were nonconsensual. By contrast, Simmons testified that the acts involving A.H. were all consensual.
A.H. testified that later that day, a vehicle stopped at the house and Simmons ordered A.H. into the vehicle. They were taken to another house where they both engaged in drug use. According to A.H., she went into a bathroom to shower and then Simmons en tered the shower and forced vaginal intercourse. After the shower, A.H. went to the living room and fell asleep. When she awoke, she did not see Simmons, and she ran out the back door and contacted
The State charged Simmons with three counts of rape, one count of aggravated kidnapping, and one count of aggravated criminal sodomy. It also charged him with one count of misdemeanor theft, claiming that he had stolen the gun he used to force A.H. into the car and intimidate her during several of the later crimes.
A jury found Simmons guilty of theft and guilty on two of the three rape counts, but it was unable to reach a unanimous decision on the third count. It acquitted him on the aggravated kidnapping and aggravated criminal sodomy counts.
The Court of Appeals affirmed in State v. Simmons, No. 98,770, 2009 WL 981685 (2009) (unpublished opinion). We granted Simmons’ petition for review on the prosecutorial misconduct claims only.
More facts will be added as necessary to the analysis.
Analysis
Issue: Prosecutorial misconduct denied Simmons a fair trial.
Simmons identifies five instances of alleged prosecutorial misconduct. The State argues that four of the instances are not prosecutorial misconduct. It concedes that the remaining instance was misconduct, but nevertheless harmless.
We recently outlined our two-step analysis for prosecutorial misconduct claims in State v. McCaslin, 291 Kan. 697, 715, 245 P.3d 1030 (2011):
“ ‘Allegations of prosecutorial misconduct require a two-step analysis. 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 statestateprejudiced the jury against the defendant and denied the defendant a fair trial, thereby requiring reversal. State v. Elnicki, 279 Kan. 47, 58,105 58, 105 1222 (2005) (quoting State v. Tosh, 278 Kan. 83, 85, 91 P.3d 1204 [2004]). We have applied the test to prosecutorial action in contexts beyond mere comment on the evidence. See State v. Stoinney, Swinney, Kan. 768, 779, 127 P.3d 261 (2006) (citing cases).’ State v. White, 284 Kan. 333, 337-38, 161 P.3d 208 (2007).”
We have provided specific guidance on when to grant a new trial on this basis:
“ ‘In the second step of the two-step prosecutorial misconduct analysis, the appellate court considers three factors to determine whether a new trial should be granted: (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.’ State v. Bryant, 285 Kan. 970, Syl. ¶ 2, 179 P.3d 1122 (2008).” McCaslin, 291 Kan. at 715-16.
Effective July 1, 2010, the language expressing the standard for reversible error changed in K.S.A. 60-261. Previously the statute stated that error would not be ground for granting a new trial “unless refusal to take such action appears to the court inconsistent with substantial justice.” Now the statute provides that error will not be ground for granting a new trial “[ujnless justice requires otherwise.” K.S.A. 2010 Supp. 60-261. Despite the language change, our general requirement remains unchanged: the statutoiy standard must be met before a new trial may be granted.
We review each claim of misconduct in turn.
Prosecutor’s discussion of Stockholm Syndrome during voir dire
During voir dire, the prosecutor asked if anyone had a background in psychology or social work. Two venirepersons responded affirmatively. Following brief questions to them, the following colloquy occurred concerning Stockholm Syndrome:
“[Prosecutor]: Is anybody in this pool that’s sitting in front of me familiar with what they call the Stockholm Syndrome? Has anyone heard of that? You are shaking you[r] head. What is it?
“[Potential juror]: It’s where the victim identifies with the perpetrator.
“[Prosecutor]: All right.
“[Potential juror]: And that she — -she or he will not have any vengeance or will actually fall in love with that person.
“[Prosecutor]: That’s absolutely correct. You are very correct. Boils it down.”
The prosecutor then asked about the Patty Hearst case, which concerned the kidnapping of a young California woman who later appeared in a bank robbery with her kidnappers:
“[Prosecutor]: Does anybody in this pool remember Patty Hurst [sic]? Sir, you’re nodding you[r] head. What did Patty Hurst [sic] do?
“[Potential juror]: She was kidnapped and then became a supposed member of the kidnapping gang.
“[Prosecutor]: That’s correct. What — did she walk into a bank at one time with that group?”
“[Potential juror]: Yes.
“[Prosecutor]: What was she holding when she went in that bank?
“[Potential juror]: Some firearm.
“[Prosecutor]: Yes. Firearm. She robbed that bank with that group, didn’t she? She came from a respectable family, didn’t she?
“[Potential juror]: Well'—
“[Prosecutor]: Again, a very well and respectable family, the Hearst family.
“[Potential juror]: Yes.”
The prosecutor next told the jury panel they should view certain trial evidence in light of the Stockholm Syndrome:
“[Prosecutor]: You are going to possibly hear evidence that maybe the victim identified at times with her alleged captor, and I ask that you view that evidence in light of the Stockholm Syndrome and like, you know, people in that situation, that are put in that situation.” (Emphasis added.)
The prosecutor prompdy provided another real life example, the Shawn Hombeck matter, that also purportedly illustrated the syndrome:
“[Prosecutor]: I am going to talk about a more recent event. How about the event with this Michael Devlin, Shawn Hombeck up in Saint Louis? Everybody pretty much familiar with that incident, where the gentleman had taken Shawn Hombeck about four years ago and stayed at the apartment? Does that ring a bell with everybody? And during the course of the time, Mr. Devlin is going to make it easy, and this kid is just sitting there. Everybody’s in the media is saying, how could that kid be kidnapped? Why is he staying there?
“And, you know, can I see a show of hands how many people believe he was actually kidnapped and was staying there on his own? How many of you folks think that?” (Emphasis added.)
The court then interrupted to advise the prosecutor that asking the venirepersons’ beliefs in an on-going case was probably inappropriate, and counsel moved to another part of the voir dire.
Simmons now contends the discussion of the Stockholm Syndrome during voir dire constitutes misconduct for several reasons. He argues it was irrelevant to discovering juror prejudice or bias. He also argues the State did not present any evidence whatsoever of the syndrome at trial — -what it is and whether A.H. suffered from it — and that the vemireperson’s definition of the syndrome was incorrect. Simmons further contends that during voir dire the State essentially presented evidence of the syndrome as it related to A.H. without subjecting it to the Frye test. See State v. Shadden, 290 Kan. 803, 818-19, 235 P.3d 436 (2010) (K.S.A. 60-456 governs admissibility of all opinion testimony, but opinions based on scientific methods or procedures must be scrutinized under the test articulated in Frye v. United States, 293 F. 1013 [D.C. Cir. 1923].).
The State responds that the Stockholm Syndrome discussion was relevant to discovering whether jurors would be biased for or prejudiced against A.H. It was also purportedly relevant to the eventual testimony of trial witness, Jesse Switzer, that A.H. rubbed Simmons’ back while sitting on the couch in Switzer’s house and called him “baby.”
The Court of Appeals panel agreed with the State, holding the discussion was not improper. It noted the discussion’s connection to the back rubbing episode and further held that the questioning was relevant to determining whether the potential jurors were biased, partial, or prejudiced against the victim. Simmons, 2009 WL 981685, at *5.
We begin our analysis of this episode by determining whether the prosecutor committed misconduct. See McCaslin, 291 Kan. at 715. Like the Court of Appeals, we note that the purpose of voir dire is to enable the parties to select jurors who are competent and without bias, prejudice, or partiality. State v. Reyna, 290 Kan 666, 686, 234 P.3d 761 (2010). In reviewing whether the trial court has taken sufficient measures to assure that the accused is tried by an impartial jury free from outside influences, appellate tribunals have the duty to make an independent evaluation of the circumstances. Reyna, 290 Kan. at 686. We have applied prosecutorial misconduct standards to the voir dire process. See, e.g., State v. McReynolds, 288 Kan. 318, 323, 202 P.3d 658 (2009).
Unlike the Court of Appeals, however, we must conclude the prosecutor’s examples and statements about Stockholm Syndrome and his colloquy with potential jurors about it constituted misconduct for a number of reasons. Several will suffice. At the outset, we reject the State’s position that the prosecutor merely was probing for juror prejudice against people who, although held captive, exhibited signs of positive feelings toward their captors. We acknowledge such probing is a legitimate prosecutorial function. See Reyna, 290 Kan. at 686. According to the commentaiy to the ABA Standards for Criminal Justice, Prosecution Function and Defense Function, Standard 3-5.3(c) (3d ed. 1993): “Treatment of legal points in the course of voir dire examination should be strictly confined to those inquiries bearing on possible bias in relation to the issues of the case.”
Simmons correctly points out, however, the prosecutor went much farther than probing. The prosecutor told the jury panel they should use the syndrome as their lens when they examined certain evidence, “I ask that you view that evidence [that maybe A.H. identified at times with her alleged captor, Simmons] in light of the Stockholm Syndrome.” As a result, the prosecutor’s comments can fairly be characterized as improper argument of an important part of his case to the panel. See ABA Standards for Criminal Justice, Prosecution Function and Defense Function, Standard 3-5.3(c) (“A prosecutor should not intentionally use the voir dire to . . . argue the prosecution’s case to the jury.”). At a minimum, he essentially argued that despite inferences that could be drawn by the panel from certain evidence, A.H.’s participation in the sex acts forming the basis for four of the charged crimes was not truly voluntary because her captivity caused her to psychologically identify with Simmons. See K.S.A. 21-3502(a)(l)(A) (rapéis sexual intercourse with person who does not consent. . . when victim overcome by force or fear); K.S.A. 21-3506(a)(3) (aggravated criminal sodomy is sodomy without consent. . . when victim overcome by force or fear).
Equally important to our misconduct analysis, the prosecutor was improperly referring to facts that were never in evidence. This prohibition applies to all lawyers. See Rule 3.4(e) of Supreme Court Rules Relating to Discipline of Attorneys (KRPC) (“A lawyer shall not ...(e) in trial, allude to any matter that . . . will not be supported by admissible evidence.”) (2010 Kan. Ct. R. Annot. 552). This prohibition especially applies to prosecutors. See McCaslin, 291 Kan. at 717; ARA Standards for Criminal Justice: Prosecution Function and Defense Function, Standard 3-5.3(c) (“A prosecutor should not intentionally use the voir dire to present factual matter which the prosecutor knows will not be admissible at trial. . . .”). That Standard’s Commentary expresses the rationale for the prohibition: “The use of voir dire to inject inadmissible evidence into the case is a substantial abuse of the process.” Accord National District Attorneys Association National Prosecution Standards, Standard 6.2.2(b) (3d ed. 2009) (www.ndaa.org/pubhcations.html) (“A prosecutor should not... intentionally use the voir dire process to present information that he or she knows will not be admissible at trial.”).
We recently warned of the dangers of this prosecutorial practice in State v. Huerta-Alvarez, 291 Kan. 247, 263, 243 P.3d 326 (2010):
“ ‘[W]hen a prosecutor refers to facts not in evidence, such statements tend to make the prosecutor his or her own witness who offers unsworn testimony not subject to cross-examination. See [State v.] Pabst, 268 Kan. [501, 510, 996 P.2d 321 (2000)]; People v. Hill, 17 Cal. 4th 800, 828, 72 Cal. Rptr. 2d 656, 952 P.2d 673 (1998). This unsworn testimony, “ ‘ “although worthless as a matter of law, can be ‘dynamite’ to the jury because of the special regard the jury has for the prosecutor, thereby effectively circumventing the rules of evidence.” ’ [Citations omitted.]” 17 Cal. 4th at 828.’ State v. Morris, 40 Kan. App. 2d 769, 791-92, 196 P.3d 422 (2008).”
Here, the results of the prohibited prosecutorial practice of referring to facts not in evidence were exacerbated by the nature of the facts themselves. The prosecutor’s agreement with the definition of the Stockholm Syndrome — provided by a venireperson possessing a psychology or social work background — implied to the panel that the syndrome was a recognized medical term and the definition was indisputable. See Huerta-Alvarez, 291 Kan. at 263 (prosecutor’s unsworn testimony is dynamite because of the special regard jury has for prosecutor). But according to one peer-reviewed article, there is “ambiguity in the use of the term” and “although research into hostage situations does occur, the term ‘Stockholm syndrome’ is rarely used or recognized in academic research.” Namnyak, ‘Stockholm Syndrome’: Psychiatric Diagnosis or Urban Myth?, 117 Acta Psychiatrica Scandinavica 4, 6 (Sweden 2008). We also independently observe the term does not appear in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR) (4th ed. 2000).
More regrettably, the prosecutor’s overall comments implied he was an authority on the Stockholm Syndrome and was capable of diagnosing an individual as suffering from this purported condition. He clearly was neither. Ironically, the Hearst and Hombeck cases the prosecutor discussed with the panel were two of those the journal authors studied before concluding: “No validated diagnostic criteria for ‘Stockholm syndrome’ have been described; existing literature is of limited research value and does litde to support ‘Stockholm syndrome’ as a psychiatric diagnosis.” 117 Acta Psychiatrica Scandinavica, p. 4.
The panel could additionally infer from the prosecutor’s overall comments that he was diagnosing A.H. as such a sufferer. Asking the panel to “view that evidence in light of the Stockholm Syndrome [from which she suffered].” is also improper conduct. See KRPC 3.4(e) (2010 Kan. Ct. R. Annot. 552) (“A lawyer shall not.
. . (e) in trial. . . assert personal knowledge of facts in issue except when testifying as a witness or state a personal opinion as to the justness of a cause, the credibility of a witness ... or the guilt or innocence of an accused.”); cf. State v. Tosh, 278 Kan. 83, 86, 91 P.3d 1204 (2004) (misconduct for prosecutor in cross-examination of defense witness to ask, “ Well, we’ve rested our case, so we’ve proven that he raped his. daughter, kidnapped his daughter and raped her again. You’re aware of that, right?’ ”).
Finally, we have stated that “[w]hen a prosecutor argues facts that are not in evidence, this court has consistently found that ‘the first prong of the prosecutorial misconduct test is met.’ ” State v. King, 288 Kan. 333, 351, 204 P.3d 585 (2009). We hold under these circumstances where a prosecutor refers to facts not in evidence, that the first prong of the prosecutorial misconduct test also is met. See, e.g., McCaslin, 291 Kan. at 717-18 (after noting KRPC 3.4[e], held prosecutorial misconduct to tell defendant on cross-examination that he had “ walked in on more bodies like that than I have.’ ”); State v. Smith, 258 Kan. 321,323-24, 904 P.2d 999 (1995) (after noting Rule 3.4[e], held that prosecutor s reference to purported Bible verse in his question during cross-examination of defendant was “clearly improper,” but not reversible, conduct).
Now that we have established the existence of prosecutorial misconduct, we proceed to step two of the analysis: whether the misconduct was of sufficient magnitude to require reversal and a new trial. See McCaslin, 291 Kan. at 718.
In support of the State’s contention that the error was not reversible, it analogizes its discussion of Stockholm Syndrome to the discussion of Munchausen Syndrome in the first-degree murder case of State v. Lumbrera, 252 Kan. 54, 845 P.2d 609 (1992). There, the prosecutor offered two possible motives for the defendant’s smothering her 4-year-old son to death, including that she suffered from Munchausen Syndrome by Proxy. During the prosecutor’s opening statement, he claimed defendant had a need to obtain sympathy — which he believed was Munchausen Syndrome by Proxy. He also informed the jury that the State would present evidence on the syndrome during trial. He then laid out what that lay evidence would be.
The State later presented these lay fact witnesses during its casein-chief. Over objection, it also presented testimony of a physician who defined Munchausen Syndrome and distinguished it from Munchausen Syndrome by Proxy. The physician explained that in the former, the individual fakes an illness or self-inflicts injuiy to become the center of attention, while in the latter, a parent fakes or inflicts an illness for the child so the parent becomes the center of attention.
The State did not present any expert testimony attempting to prove Lumbrera suffered from either syndrome. The district court then granted Lumbrera’s motion to strike all testimony on either syndrome and to strike their references in an exhibit. The court explained the State had not laid a foundation for the purpose of the syndrome testimony, instructed the jury to disregard the physician’s testimony about it, and ordered the jury to remove that term from their consideration.
We first rejected Lumbrera’s argument that the error in admitting this evidence was not overcome by the striking of the physician’s testimony and by the court’s juiy admonition to disregard. More important to the instant case, we also rejected her argument that the prosecutor’s mention of Munchausen Syndrome during his opening statement was reversible error. We pointed out the State later introduced lay witness testimony into evidence at trial supporting its theoiy that the obtaining of sympathy was a motive for the crime — what the State “said it would do in its opening statement.” 252 Kan. at 68. We observed that all the evidence relative to the syndromes had been stricken and the jury admonished to disregard it. We concluded:
“There is no showing of substantial prejudice to the defendant from the brief reference to the syndrome in the opening statement or bad faith on the part of the prosecutor. Error there was, but standing alone the issue raised relative to the Munchausen Syndromes does not rise to the status of reversible error.” (Emphasis added.) 252 Kan. at 68.
The Lumbrera court heavily relied upon the standard articulated in State v. Pink, 236 Kan. 715, 724, 696 P.2d 358 (1985), overruled in part on other grounds by State v. VanCleave, 239 Kan. 117, 119, 716 P.2d 580 (1986). The Pink court held:
“Absent substantial prejudice to the rights of a defendant, there must be a showing of bad faith on the part of the prosecutor before relief may be granted as a result of a prosecutor’s reference in his opening statement to matters not provable or which he does not attempt to prove during the trial. [Citations omitted.]” 236 Kan. at 724.
This court later made a similar statement in the decision principally relied upon by the Court of Appeals in the instant case, State v. Campbell, 268 Kan. 529, 542, 997 P.2d 726, cert. denied 531 U.S. 832 (2000):
“ ‘In a criminal action proof which the prosecuting attorney anticipates in the trial of the case frequently fails to come up to expectations, and the tendency is to permit the prosecuting attorney a reasonable latitude in stating to the jury the facts he proposes to prove. Where no substantial prejudice results, and there is nothing to show the prosecuting attorney acted in bad faith, appellate courts usually refuse to reverse or remand a case for trial because of a reference by the prosecuting attorney to matters which he subsequently made no attempt to prove, or for some reason or another was unable to prove.’ [Citation omitted.]”
The decisions in Pink, Lumbrera, and Campbell all predate our clarification, and standardization, of the multi-step prosecutorial misconduct test in Tosh, 278 Kan. 83, Syl. ¶ ¶ 1-2. We see no valid reason for maintaining a separate, incomplete Tosh test for this specific scenario. Accordingly, the tests stated and applied in those decisions are now clarified: we apply the Tosh test.
That said, our facts are easily distinguishable from Lumbrera’s. Unlike Lumbrera, here the prosecutor never made any effort to introduce any evidence about the syndrome during trial. Not only was no evidence ever presented about the Stockholm Syndrome, but there is also no indication that the State ever possessed any evidence about the syndrome in general or about how the syndrome related to A.H. specifically, much less an indication that the State intended to present such evidence for admission. Indeed, during defense counsel’s turn during voir dire, he told the panel that while the prosecutor had mentioned the syndrome to them, the State was required to share its information with him, and he had not been informed of the testimony of any psychologist or psychiatrist for the State. He effectively told them that as a result, little information on the syndrome would likely be provided at trial. Compare McCaslin, 291 Kan. at 720-22 (State’s response to new trial motion suggested witnesses had existed to establish the unsupported factual statements made by prosecutor during trial). And unlike Lumbrera, here nothing was done to cure the problems caused by the discussion about the syndrome.
Step two of our Tosh analysis — whether the statements sufficiently prejudiced the jury against Simmons to deny him a fair trial — specifically allows us to consider whether the prosecutor’s misconduct is gross and flagrant. See McCaslin, 291 Kan. at 721-22 (citing Tosh, 278 Kan. at 93-95). The prosecutor’s multiple references to the Stockholm Syndrome, including his providing the panel with some details of two actual criminal cases allegedly il lustrating the condition, compel us to conclude his conduct was gross and flagrant. See State v. Madkins, 42 Kan. App. 2d 955, 961, 219 P.3d 831 (2009) (“[I]n evaluating whether a comment was gross and flagrant, Kansas courts often consider whether the prosecutor repeated or emphasized the misconduct.”).
Step two of our Tosh analysis also specifically allows us to consider whether the prosecutor s misconduct demonstrates ill will. See McCaslin, 291 Kan. at 721-22 (citing Tosh, 278 Kan. at 93-95). Although a harder question here, we conclude that it does. With absolutely no effort to introduce evidence on the issue, the prosecutor appeared to establish a definition of Stockholm Syndrome through a potential juror, appeared to make the definition unassailable by openly agreeing with it, and appeared to diagnose two other real-life crime victims and A.H. as suffering from the syndrome. He then expressly asked the panel to view certain evidence against A.H. “in light of the Stockholm Syndrome” as defined by the venireperson and himself — an intentional, improper use of voir dire to argue an important part of his case to the jury. See, e.g., ABA Standards for Criminal Justice, Prosecution Function and Defense Function, Standard 3-5.3(c).
Whether this otherwise constituted reversible misconduct, i.e., after reviewing the amount of the evidence in light of the state and federal standards, as articulated in Tosh, will be discussed later in the opinion. See McCaslin, 291 Kan. at 718, 722.
Prosecutors closing argument comment about A.H. showering
During the prosecutor’s closing argument, he discussed the alleged rape that occurred when A.H. was showering:
“After [Simmons] washes [A.H.], he ordered her to turn around, face the shower with the shower coming down into her face, spreads her legs, proceeds to rape her from behind. And you and I taire showers every day. We take it for granted. The things we worry about, am I going to run out of hot water? Am I going to stay in the shower too long and malee it late to work? But now, every day that [A.H.] takes a shower, what do you think she is thinking about?” (Emphasis added.)
The court immediately interrupted and instructed the jury to disregard the comment about what A.H. would be thinking during her future showers and not to consider it during deliberations.
Simmons argues that the prosecutor committed misconduct with this statement because it “appealed to the jury’s sense of compassion for the alleged victim,” which in turn, prejudiced his right to a fair trial.
In its appellate brief, the State concedes “for [the] sake of argument” that the prosecutor’s remark was improper. Citing a number of cases, the State contends the error was harmless at best because of the district court’s interruption and instruction to disregard.
The Court of Appeals panel agreed with the State, determining that the trial court’s admonition to disregard cured any prejudicial impact from the prosecutor’s statement. See State v. Jordan, 250 Kan. 180, 195-96, 825 P.2d 157 (1992) (Improper remarks uttered by the prosecutor on final summation will not constitute reversible error where the jury has been instructed to disregard the same, unless the remarks were so prejudicial as to have been incurable.). Citing State v. Gleason, 277 Kan. 624, 642, 88 P.3d 218 (2004), the court held Simmons had not met his burden to show the statement’s prejudice was incurable. Simmons, 2009 WL 981685, at *5.
We have held that a prosecutor crosses the threshold of appropriate argument when the argument is intended to inflame the passions or prejudices of the jury “or when the argument diverts the jury’s attention from its duty to decide the case on the evidence and controlling law. [Citation omitted.]” State v. Martinez, 290 Kan. 992, 1014-15, 236 P.3d481 (2010). Accordingly, a prosecutor commits misconduct during closing argument when, in effect, he or she asks the jury to base its deliberations on sympathy for the victim or victim’s family or to otherwise argue the impact of a crime on a victim or victim’s family. See State v. Adams, 292 Kan. 60, 67-68, 253 P.3d 5 (2011) (citing cases).
Given this case law, we readily conclude the prosecutor’s comment about A.H. in future showers constituted misconduct. The comments are at least as serious as the prosecutor’s comments in State v. Adams. We held those were an improper appeal for sympathy for the victim and therefore diverted attention from the juiy’s function of determining guilt based on the instructions:
“ ‘This case doesn’t just mean something to the defendant. It means something to Ratsamy Phanivong [victim.] This is the only chance he will ever have to have someone held accountable for taking his life. So this day is as much about him if not more than anyone else.’ ” 292 Kan. at 67-68.
As for whether the trial court’s jury admonition to disregard the shower comment actually cured the prejudice, we cannot isolate this instance of prosecutorial misconduct from his voir dire misconduct discussed earlier. We observe that the second general step in Tosh — whether the prosecutor’s comments sufficiently prejudiced the jury against Simmons to deny him a fair trial — is similar to our inquiry regarding the admonished shower comment: whether the resulting prejudice was incurable and therefore denies Simmons a fair trial. In both inquiries, our determination includes reviewing tire amount of the evidence of the defendant’s guilt. See Tosh, 278 Kan. at 85 (in addition to examining for ill will and whether conduct gross and flagrant, examine whether evidence against defendant is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors); cf. Gleason, 277 Kan. at 642 (in addition to acknowledging trial court’s sustaining objection and immediately admonishing jury, concluded evidence of guilt was direct and overwhelming; prejudice not incurable); State v. Foster, 259 Kan. 198, 212, 910 P.2d 848 (1996) (same). Accordingly, we will consider the two episodes of misconduct together.
In contending that the misconduct did not deny Simmons a fair trial, the State appears to argue the weight of the evidence by principally pointing out that Simmons was not convicted of all crimes. More specifically, he was acquitted on the aggravated kidnapping and aggravated criminal sodomy counts, and the jury failed to reach a verdict on one of the three rape counts. The State essentially suggests that the prosecutor’s comments regarding the Stockholm Syndrome were only relevant to the aggravated kidnapping charge and, because Simmons was acquitted of that charge, the misconduct obviously cannot be reversible error. “Simmons cannot demonstrate that he was prejudiced by these comments concerning kidnap victims when he was acquitted of the [aggravated] kidnapping charge.” On the surface, this argument appears meritorious as an important element of aggravated kidnapping is “the taking or confining of a person, accomplished by force, threat or deception.” (Emphasis added.) K.S.A. 21-3420 (kidnapping); K.S.A. 21-3421 (aggravated kidnapping).
Upon deeper examination, however, we must disagree with the State’s surface argument. The prosecutor did not instruct the jury panel during voir dire to limit its consideration of the Stockholm Syndrome to any particular crimes, especially aggravated kidnapping. As mentioned, he instead told them they should generally use the syndrome as their lens when they examined certain evidence, “I ask that you view that evidence [that A.H. maybe identified at times with Simmons] in light of the Stockholm Syndrome.” As a result, the prosecutor essentially argued that despite inferences that could be drawn by the jury panel from certain evidence, A.H.’s participation in the sex acts forming the basis for four of the charged crimes was not voluntary. As in the charged crime of aggravated kidnapping, the factor of voluntariness, i.e., consent, also was an absolute defense to the sex crimes. The State needed to negate this defense for Simmons’ convictions. See K.S.A. 21-3502(a)(1)(A) (rape is sexual intercourse with a person who does not consent . . . when the victim is overcome by force or fear); K.S.A. 21-3506(a)(3) (aggravated criminal sodomy is sodomy without consent. . . when victim overcome by force or fear).
Additionally, the jury was never told to disregard the prosecutor’s discussion of the Stockholm Syndrome. Nor was it told to disregard his implication that the syndrome explained that A.H. psychologically identified with her captor and therefore could never truly give consent. We observe the jury then convicted Simmons of two counts of rape but was unable to reach a verdict on the third. Simmons, however, relies upon his acquittals of aggravated kidnapping and aggravated criminal sodomy to argue: “The jury must have thus believed that A.H. willingly spent some of the weekend with Mr. Simmons.” (Emphasis added.) Given the mixed results of the verdicts, we will not speculate as to the exact effect the State’s comments had on the jury during its deliberations on all charges. But we can conclude that the prosecutor’s argument that A.H. was not a voluntaiy participant because of the Stockholm Syndrome could easily have affected important parts of the trial.
The State makes a similar argument concerning the prosecutor s comment about A.H.’s thoughts during daily showers for the rest of her life. It contends the admonition worked “because the jury acquitted him of aggravated criminal sodomy, aggravated kidnapping and was unable to reach a verdict on a count of rape.”
We must reject this argument for many of the same reasons we rejected the State’s argument about the lack of prejudice caused by the Stockholm Syndrome discussion. While admittedly Simmons was not convicted of all charges, he was nevertheless convicted of two rape counts for acts committed during this entire episode. Furthermore, just as we concluded the prosecutor’s argument that A.H. was not a voluntary participant because of the Stockholm Syndrome could easily have affected important parts of the trial, the prosecutor’s appeal to sympathy for A.H. could have done so as well. Again, given the mixed results of the verdicts, we will not speculate as to the exact effect the showering comment had on the jury during its deliberations on all charges.
We pause to note our analysis of the shower comment technically is unfinished. Earlier we saw no valid reason for maintaining a separate, incomplete Tosh test for the specific prosecutorial misconduct scenarios described in Pink, Lumbrera, and Campbell. Similarly, we see no valid analytical reason for maintaining an incomplete Tosh test for when the effect of prosecutorial misconduct is allegedly cured by a timely jury admonition to disregard. See, e.g., Jordan, 250 Kan. at 195-96. Accordingly, the test stated and applied in Jordan and similar decisions is now clarified. As demonstrated above, we apply the Tosh test, with the extent of any ameliorating effect of a jury admonition obviously to be considered in step two when reviewing the amount of the evidence of guilt to determine whether the prosecutor’s statements prejudiced die jury and denied defendant a fair trial. In this determination, however, we must also review the other factors comprising step two because no single factor is individually controlling. Tosh, 278 Kan. at 85. While ill will and gross and flagrant conduct are valid factors for consideration, for analytical purposes we simply note that they do not appear in the shower comment.
Stating our ultimate conclusion another way, with these different verdicts demonstrating convictions, acquittals, or juror uncertainty on the six charges, we simply cannot conclude tihat the evidence against Simmons is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors. See McCaslin, 291 Kan. at 715-16. Accordingly, we hold the prosecutor’s discussion regarding the Stockholm Syndrome and comments about A.H.’s thoughts while showering combine to constitute reversible prosecutorial misconduct under both K.S.A. 60-261 (error not ground for new trial unless justice requires otherwise) and Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967) (conclusion beyond reasonable doubt that the error had little, if any, likelihood of having changed the results of the trial). See State v. Warledo, 286 Kan. 927, 948, 190 P.3d 937 (2008) (when analyzing the prejudicial nature of the prosecutor’s improper comments, we are required to examine the comments in the context of the trial record as a whole). We reverse and remand for a new trial.
The remaining issues of alleged prosecutorial misconduct do not warrant reversal, but we will address them to supply guidance for remand. See State v. Kunellis, 276 Kan. 461, 476, 78 P.3d 776 (2003).
Prosecutors initial remarks during voir dire
Simmons’ next claim of prosecutorial misconduct occurred during a colloquy in the early stages of voir dire:
“[Prosecutor]: I, like the Judge said, this is about a girl named [A.H.] that was kidnapped and raped a couple of times.
“[Defense]: Objection, Your Honor. May we approach the bench?
“[Court]: Come forward.”
After approaching, defense counsel explained he objected because rape was only an allegation:
“[Defense]: I object to the statement. He is telling them that this person has been raped. That is a decision for the jurors to malee. That is an allegation only.
“[Court]: I agree. I agree. You need to preface this, ‘the State’s allegations are.’
“[Prosecutor]: All right.
“[Court]: You stated it as if it’s a fact.
“So I will sustain the objection and instruct you to use the word ‘allege’ or something of that nature.
“[Prosecutor]: All right.
“[Court]: Thank you.”
Back in the presence of the jury panel, the prosecutor resumed his voir dire with different language:
“[Prosecutor]: Like I said, the Judge told you what the nature of the charges are and what the State is alleging, that a rape occurred after a kidnap. Rape is not about sex. It’s about control and it’s about anger, and we are going to talk a lot about that. So this may shade your views of sex for the time being.” (Emphasis added.)
Simmons argues that the prosecutor’s initial comment prejudiced his right to a fair trial because it “asserted that the charged offenses were true and amounted to the personal opinion of the prosecutor of Mr. Simmons’ guilt.” He correctly points out that no jury admonition was given. The State essentially responds that the jury would realize the State believed Simmons was the perpetrator; otherwise, he would not be the one on trial.
The Court of Appeals panel determined it need not decide whether the prosecutor’s comment was improper because it did not amount to plain error. More specifically, it held, because of the court’s sustaining the objection, there was no reversible error unless defendant established the error was so prejudicial as to be incurable. Simmons, 2009 WL 981685, at s4 (citing Gleason, 277 Kan. at 642). It also found the comment did not indicate gross and flagrant conduct or ill will toward defendant.
The prosecutor’s comment is analogous to one in State v. McReynolds, 288 Kan. 318, 202 P.3d 658 (2009). During voir dire, the prosecutor was explaining the difference between civil and criminal trials when he commented that an accused person, “ ‘whether they’re guilty or not, has a right to have a jury trial, even guilty people.’ ” 288 Kan. at 324. We acknowledged the appellant made a valid point that the statement, in isolation, undermined the presumption of innocence by suggesting he was guilty before the trial commenced. However, we noted that the prosecutor’s entire statement surrounding the excerpt “clearly placed the burden on the State to prove guilt and clearly articulated the presumption of innocence.” 288 Kan. at 324. We further noted that in voir dire the prosecutor did not emphasize the defendant’s guilt or ever attempt to shift onto him the burden of proof. Accordingly, we held the statement was not outside the bounds of permissible statements. 288 Kan. at 324-25.
Here, the prosecutor stated the victim had been kidnapped and raped. He did not suggest as strongly as in McReynolds, that the defendant was guilty of committing those crimes. Moreover, given our system of criminal justice, all potential jurors should recognize that the State believes the defendant committed the crime because it filed charges against the defendant and proceeded to trial. Additionally, after a proper objection and ruling, here the prosecutor immediately corrected his statement. Later during his voir dire, as in McReynolds, he again explained that the State bore the burden of proof on the rape and kidnapping charges. Under these circumstances, we hold that the prosecutor’s statement concerning the rape and kidnapping without referring to them as “alleged” is not misconduct. Nevertheless, the statement should not be repeated on remand.
Detective Austin’s Testimony
Simmons’ next claim of prosecutorial misconduct occurred during the prosecutor’s direct examination of Detective John Austin. After exploring how he became involved in the case, the prosecutor asked Detective Austin what he did next. Detective Austin replied:
“[Detective Austin]: Mr. Simmons had finished his — was finishing his written statement. I talked with other officers, Officer Martin. Also, I called the County Attorney’s office, spoke with them, determined probable cause—
“[Defense]: Objection.
“[Court]: Sustained.
“[Prosecutor]: Tell me—
“[Court]: Move along.
“[Prosecutor]: —what you did next. Actually, what you did next.”
Simmons claims the prosecutor intentionally elicited testimony from Detective Austin for injecting his personal opinion that prob able cause existed to believe Simmons committed the crimes. The State responds that Detective Austin exceeded the scope of an otherwise valid question.
In agreeing with the State, the Court of Appeals panel determined that the prosecutor’s question was not improper and noted that nothing in the record indicated that the prosecutor intentionally elicited this response from the detective. Simmons, 2009 WL 981685, at *5.
As noted by the court, our decision in State v. Fewell, 286 Kan. 370, 184 P.3d 903 (2008), is of guidance. There, a trooper testified that he became frustrated when a vehicle occupant denied that the smell of marijuana was present. The prosecutor asked the trooper to explain why he was frustrated, and the trooper concluded his response by saying, “ ‘People will lie about something just so simple.’ ” 286 Kan. at 386-87. The defendant claimed the trooper’s comment was improper and the prosecutor’s questioning constituted misconduct. Even though the defendant failed to preserve the issue for appeal by objecting, we noted that the prosecutor’s questions of the trooper were appropriate because “the prosecutor did not ask a question that in any way attempted to elicit testimony from [the trooper] regarding [defendant’s] credibility.” 286 Kan. at 389.
Similar to Fewell, the prosecutor in this case asked a witness to explain a previous statement. The prosecutor’s question — “[W]hat you did next[?]” — was innocuous and did not call for any objectionable response on its face. The prosecutor was attempting to have Detective Austin explain the chronological sequence of events in this case and Austin’s involvement in them. It was not prosecutorial misconduct. Nevertheless, it should be avoided on remand.
Prosecutor’s comment on defense witness during closing argument
Simmons’ final claim of prosecutorial misconduct, like the showering comment, arose during the prosecutor’s closing argument. When discussing the witnesses and testimony presented at trial, the prosecutor commented on defense witness Scott Debusk, Jr.’s testimony: “And the last witness, Scott Debusk, Junior, I would submit to you, was just a last-ditch effort to smear—as a smear campaign of the victim.” Simmons claims the prosecutor’s comment about the purpose of Debusk’s testimony was improper.
The State responds the comment was a reasonable inference based on Debusk’s testimony and that the prosecutor was properly arguing why certain evidence should not be considered.
The Court of Appeals panel agreed with the State, determining that the prosecutor’s comment was not objectionable because it was part of the broader context in which the prosecutor asked the juiy to ignore the defense’s attempt to “cast[] a poor light on the victim” and cloud the evidence. 2009 WL 981685, at *6.
From the record it appears Debusk’s purpose in testifying was to inform the jury that A.H. befriended persons who manufactured methamphetamine. He testified he knew A.H. because he met her while she was living with his cousin, who later was imprisoned for manufacturing meth. After the State objected on relevance grounds, the court asked defense counsel to explain the relevance or it would sustain the objection. The defense counsel replied, “All right. Defendant has nothing further” and ended the examination.
We agree the prosecutor asked the jury to consider Debusk’s brief testimony as part of a “smear campaign” of A.H. We have said that a prosecutor crosses the threshold of appropriate argument when the argument diverts the jury’s attention from its duty to decide the case on the evidence and controlling law. Martinez, 290 Kan. at 1014-15. Here, however, he appeared to be asking the jury to reject Debusk’s testimony and consider the case on the other evidence. While the prosecutor’s comments therefore do not constitute misconduct, should Debusk similarly testify again on remand, the prosecutor should avoid such comments.
Reversed and remanded for new trial.
Carl B Anderson, Jr., District Judge, assigned. | [
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The opinion of the court was delivered by
Yalehtine, J.:
We are unable to perceive any error in this case. The petition of the plaintiff below and the verdict of the jury sustain the judgment; and there is little else in the record that we can consider intelligently. None of the instructions of the court to the jury are brought to this court, and the record does not purport to contain all the evidence. But if the evidence brought to this court was all the evidence in the case, still we think there is sufficient to sustain the verdict. This court has decided in many cases that where there is some evidence to sustain the verdict the supreme court will not reverse an order of the district court refusing to grant a new trial on the ground that the verdict is against the evidence, unless a great preponderance of the evidence seems to be against the verdict. ( U. P. Rly. Co. v. Caldwell, 5 Kas., 82, and cases there cited; Blair v. Fields, 5 Kas., 58; Pacific Rly. Co. v. Nash, 7 Kas., 280; School Dist. v. Griner, ante, 224. See also in this connection, Rose v. Williams, 5 Kas., 488, and cases there cited; Ulrich v. Ulrich, ante, 402. The reasons for sustaining the order of the district court in such eases will be found in the cases of Anthony v. Eddy, 5 Kas., 133, and School Dist. v. Griner, supra.
In answer to counsel for plaintiffs in error we would say that the verdict in this case is not necessarily based upon the testimony of the witness Newton alone. Other witnesses testified concerning the ownership of the property. Even Newton testified as to the ownership of the property down to about nine months before the decease of Mrs. Hansbrough; and Maria Neeley testifies as to the ownership of a roll of money down to about four months before Mrs. Hansbrough’s death; and as to the ownership of the property in Mrs. Hansbrough’s room down to the time of her decease. The main question of fact in the case was whether this property belonged to Mrs. Hansbrough at the time of her decease or not. The testimony of Newton and Maria Neeley and several other witnesses tended to prove that it did; and there is nothing in the record that tends to show that the jury considered evidence that had been excluded by the court.
We do not think that the.court erred in admitting the testimony of Newton as to the alleged sale of the property by Mrs. Hansbrough to her daughter Ella Wooledge. This supposed sale was a transaction between Mrs. Hansbrough, whom the plaintiff now represents as administrator, and Ella Wooledge, one of the defendants in this action, and concerning the very property for which the plaintiff has sued the defendants. The other two defendants seem to have participated in this transaction. Mrs. Hansbrough owned the property and furnished the money to Ella Wooledge to purchase it. Ella Wooledge returned the money to her mother, Mrs. Hansbrough, (in about five minutes after she received it,) as a payment for the property, and took a receipt for the same. Newton testifies that Charles H. Wooledge (the husband of Ella Wooledge) “proposed that the old lady should furnish money for the perform anee,” and “ said they would have to give a receipt.” Newton also testifies that Presley Hansbrougb (a brother of Ella Wool-edge) told his mother, “You’ll never pay your debts if I can help it.” Mrs. Hansbrougb continued to.hold said property however as her own, notwithstanding said supposed sale, and the defendants claim to hold it by a subsequent sale from Mrs. Hansbrougb to Charles H. Wooledge. We think the foregoing testimony of Newton was both relevant and competent. If the transaction between Mrs. Hansbrough and her daughter was a Iona fide one, then of course the evidence was competent and proved a fact against the plaintiff; but if it was a sham, and a fraudulent transaction, as the jury undoubtedly found that it was, then it tended to throw light upon the subsequent -transactions between the same parties and concerning the same property. A portion of the property at least, if not all, seems to have remained in the possession of- Mrs. Hansbrough until her death. As no error has been affirmatively shown the judgment of the court below must be affirmed.
All the Justices concurring. | [
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|
The opinion of the court was delivered by
Beier, J.:
This case requires us to decide whether Kansas law recognizes a strict liability claim against the seller of a used product.
Plaintiff Gabriel Gaumer filed suit against Rossville Truck and Tractor Company, Inc. (Rossville) alleging negligence and strict liability for injuries caused by a used hay baler purchased from Rossville. The district court granted Rossville’s motion for summary judgment on both the negligence and strict liability claims. The Court of Appeals affirmed the district court’s decision regarding Gaumer’s negligence claim but reversed on his strict liability claim. Rossville petitioned for review, and this court granted the petition on the single issue of whether strict liability can be applied to a seller of used goods.
Factual and Procedural Background
Gaumer’s father purchased the used hay baler “as is” on June 3, 2003. The baler was missing a safety shield on its side, which would have been part of the baler when it was originally manufactured and sold.
A week later, the baler malfunctioned while Gaumer was using it. He parked the baler and let its engine idle while he knelt or squatted near its side to investigate the problem. Gaumer placed his right hand on the outside of the baler for support and observed its internal operation through the hole left by the missing safety shield. When he attempted to stand up straight, he slipped, and his left arm entered the same hole in the baler. Gaumer’s arm became caught in the baler’s internal moving parts, and he suffered an amputation just below his left elbow.
Gaumer claimed Rossville was negligent by failing to warn about the potentially dangerous condition of the baler without the safety shield, negligent by failing to inspect the baler before the sale to Gaumer’s father, and strictly hable for selling a product in an unreasonably dangerous condition.
Gaumer provided an expert witness report from engineer Kevin B. Sevart. Sevart opined that Gaumer s injuries were “significantly enhanced due to the absence of a safety device designed to specifically limit injuries in an accident such as he experienced.” The report also stated: “It has long been known by engineers and the agricultural equipment industry that shields which must be removed for, or which interfere with, routine maintenance will not likely be maintained on the machine.”
The district court judge granted summary judgment on the negligence and strict liability claims, holding that the expert report’s failure to mention any legal duty of Rossville to warn or inspect meant that he could not simply “piggyback the opinion of defectiveness from the manufacturer to the seller.” The judge also cited two cases from the federal District Court of Kansas, Sell v. Bertsch & Co. Inc., 577 F. Supp. 1393 (D. Kan. 1984), and Stillie v. AM Intern., Inc., 850 F. Supp. 960 (D. Kan. 1994), that predicted this court would not apply strict liability to sellers of used goods.
The Court of Appeals affirmed the summary judgment on the negligence claims for failure to provide expert testimony on the standard of care of a used implement dealer. The panel reversed, however, on the strict liability claim, holding that (1) the expert opinion was sufficient to establish a prima facie case for strict liability, and (2) Kansas law, as so far enunciated by this court, supports a strict liability claim against a seller of used goods. It relied on caselaw; strict liability pattern instructions; and the Restatement (Second) of Torts § 402A (1964), which make no distinction between sellers of used and new goods, declining to carve out an exception to the Restatement rule without guidance from this court.
Analysis
Standard of Review
“ ‘ “ ‘Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.’ [Citation omitted.]” ’ ” Troutman v. Curtis, 286 Kan. 452, 454-55, 185 P.3d 930 (2008) (quoting Nungesser v. Bryant, 283 Kan. 550, 556, 153 P.3d 1277 [2007]).
The parties agree that there are no material factual disputes ’in this case, and the sole question on this petition for review is a purely legal one. Our review is thus de novo. Cooke v. Gillespie, 285 Kan. 748, 754, 176 P.3d 144 (2008). In addition, to the extent our analysis requires statutory interpretation or construction, our review is unlimited. Delaney v. Deere & Co., 268 Kan. 769, 775, 999 P.2d 930 (2000).
Sources of Law
We begin by determining whether to answer the legal question by looking solely to the Kansas Product Liability Act (KPLA), K.S.A. 60-3301 et seq., or at the KPLA and Kansas common law. In other words, does the KPLA supersede Kansas common law on this question?
The KPLA states that a
“ ‘[p]roduct liability claim’... includes, but is not limited to, any action previously based on: strict liability in tort; negligence; breach of express or implied warranty; breach of, or failure to, discharge a duty to warn or instruct, whether negligent or innocent; misrepresentation, concealment, or nondisclosure, whether negligent or innocent; or under any other substantive legal theory.” K.S.A. 60-3302.
Generally, this court does not engage in an examination of legislative history unless the language of a statute is ambiguous. See Unruh v. Purina Mills, 289 Kan. 1185, 1194, 221 P.3d 1130 (2009) (citing In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 [2007], cert. denied sub nom Hendrix v. Harrington, 555 U.S. 937 [2008]). When language is ambiguous, the court looks to the “ ‘historical background of the enactment, the circumstances attending its passage, the purposes to be accomplished, and the effects the statute may have under the various constructions suggested’ ” to determine legislative intent. In re M.F., 290 Kan. 142, 151, 225 P.3d 1177 (2010) (quoting State v. Phillips, 289 Kan. 28, 32, 210 P.3d 93 [2009]). The KPLA’s description of a “product liability claim” with no accompanying language indicating the KPLA’s effect or lack of effect on product liability common law leaves an ambiguity for this court to resolve. Examination of the KPLA’s legislative history is therefore necessary.
The Kansas Legislature passed the KPLA in 1981, at least loosely basing it on the Model Uniform Product Liability Act (MUPLA) published by the Department of Commerce in 1979. See 44 Fed. Reg. 62,414-62,750 (October 31, 1979). The original proposed Senate Bill 165 was almost identical to MUPLA. But the final version of the KPLA is considerably less detailed than MUPLA in scope, definitions, and subsequent sections outlining the liability of manufacturers and product sellers.
The final version of the KPLA contains only seven sections. Section 1 is the title; Section 2 contains definitions; Section 3 covers useful safe life and the statute of repose; Section 4 addresses the defense of compliance with' legislative and administrative regulatory standards existing at the time of manufacture; Section 5 concerns limitations on a manufacturer’s or seller’s duty to warn; Section 6 limits the liability of a seller; and Section 7 discusses circumstances in which evidence of alternative design and subsequent remedial measures is admissible or inadmissible.
MUPLA and the KPLA both state that a “product liability claim” is
“any claim or action brought for harm caused by the manufacture, production, making, construction, fabrication, design, formula, preparation, assembly, installation, testing, warnings, instructionSj marketing, packaging, storage, or labeling of the relevant product. It includes, but is not limited to, any action previously based on: strict liability in tort; negligence; breach of express or implied warranty; breach of, or failure to, discharge a duty to warn or instruct, whether negligent or innocent; misrepresentation, concealment, or nondisclosure, whether negligent or innocent; or under any other substantive legal theory.” 44 Fed. Reg. 62,717; K.S.A. 60-3302(c).
MUPLA further explains that the “purpose of this Act is to consolidate product liability actions that have, at times, been separated under theories of negligence, warranty, and strict liability.” 44 Fed. Reg. 62,719. Moreover, “[w]hile an argument may be made that negligence theory is qualitatively different from strict liability and, therefore, should be preserved, product liability theory and practice have merged into a single entity and can only be stabilized if there is one, and not a multiplicity of, causes of action.” 44 Fed. Reg. 62,719.
MUPLA also explicitly states in its Section 3: “This Act is in lieu of and preempts all existing law governing matters within its coverage, including the ‘Uniform Commercial Code’ and similar laws; however, nothing in this Act shall prevent the recovery, under the ‘Uniform Commercial Code’ or similar law, of direct or consequential economic loss.” (Emphasis added.) 44 Fed. Reg. 62,720. In addition:
“(C) Whenever this Act does not provide a rule of decision, reference may be made to other sources of law, provided that such reference conforms to the intent and spirit of this Act as set forth in the following criteria used as guidelines for its development:
(1) To ensure that persons injured by unreasonably unsafe products receive reasonable compensation for their injuries;
(2) To ensure die availability of affordable product liability insurance with adequate coverage to product sellers that engage in reasonably safe manufacturing practices;
(3) To place the incentive for loss prevention on the party or parties who are best able to accomplish that goal;
(4) To expedite the reparations process from the time of injury to the time the claim is paid;
(5) To minimize the sum of accident costs, prevention costs, and transaction costs; and
(6) To use language that is comparatively clear and concise.” 44 Fed. Reg. 62,720.
In contrast to MUPLA, the KPLA does not contain language consolidating earlier causes of action and makes no explicit reference to whether it is “in lieu of and preempts” all other laws governing product liability. Because the KPLA borrows MUPLA language to describe a “product liability claim,” one might infer that the general scope of the KPLA was intended to be the same, i.e., that its seven limited sections apply to all liability claims against product sellers. See Westerbeke, Some Observations on the Kansas Product Liability Act (Part I), 53 J.K.B.A. 296, 296 (1984) (“[The KPLA’s] substantive provisions apply to all product liability claims’ against ‘product sellers’ for ‘harm.’ ”). But we are reluctant to read so much into so little from our legislature.
In addition, MUPLA differs from the KPLA by laying out tire “basic standards of responsibility for manufacturers” in Section 104. 44 Fed. Reg. 62,721. This section sets out the elements of the cause of action for a statutory product liability claim. The elements encompass those originally assigned to claims for strict liability for manufacturing defects, breach of express warranty, and negligent design and warning. Specifically, Section 104 explicitly states that MUPLA does not recognize a claim for strict liability for design and warning defects, relying instead on a fault basis for such claims. 44 Fed. Reg. 62,722.
MUPLA also differs from the KPLA by setting out “basic standards of responsibility for product sellers other than manufacturers” in its Section 105. 44 Fed. Reg. 62,726. A product seller is subject to liability if the claimant proves “by a preponderance of the evidence that the claimant’s harm was proximately caused by such product seller’s failure to use reasonable care with respect to the product.” This language essentially embraces a negligence theory. 44 Fed. Reg. 62,726. Section 105 also provides that a product seller may be liable in the place of a manufacturer under Section 104 strict liability, if the manufacturer is not subject to service of process, has been judicially declared insolvent, or has been determined by the court to be judgment-proof.
Regarding the precise question before us in this case, MUPLA specifically excludes most sellers of used goods from its definition of product sellers. Its Section 102 states: “The term ‘product seller’ does not include: ... (3) A commercial seller of used products who resells a product after use by a consumer or other product user, provided the used product is in essentially the same condition as when it was acquired for resale . . . .” 44 Fed. Reg. 62,717.
No such language appears in the KPLA, although the original bill excluded most sellers of used goods from the definition of “product sellers.” Upon final amendment, the legislature removed the following:
“The term ‘product seller’ does not include:
“(a)(3) a commercial seller of used products who resells a product after use by a consumer or other product user, provided the used product is in essentially the same condition as when it was acquired for resale ....
“(b)... A product seller acting primarily as a wholesaler, distributor or retailer of a product may be a ‘manufacturer’ but only to the extent that it designs, produces, malees, fabricates, constructs or remanufactures the product before its sale.” S.B. 165, 1981 Session (Kan. 1981) (as amended by House Committee of the Whole); House J. 1981, p. 753.
This removal may speak volumes. “[Cjhanges made in the statute during the course of enactment may be considered by this court in determining legislative intent.” Urban Renewal Agency v. Decker, 197 Kan. 157, 160, 415 P.2d 373 (1966). In addition, we view the legislature’s inclusion of the words “for resale” in its definition of “product seller” as significant. K.S.A. 60-3302(a)’s “product seller” covers “any person or entity that is engaged in the business of selling products, whether the sale is for resale, or for use or consumption. The term includes a manufacturer, wholesaler, distributor or retailer of the relevant product.” It is obvious that at least some resales are sales of used products.
When it comes to setting out the responsibilities and potential liabilities of a “product seller,” the KPLA is silent. This legislative approach leaves this court and other courts no choice but to look to the substantive rights and liabilities recognized under Kansas common law for each type of product liability action. See K.S.A. 77-109 (common law remains in force in aid of general statutes of state). This reality was recognized by Professor William E. Westerbeke of the University of Kansas School of Law shortly after the KPLA went into effect. He discussed whether the KPLA applied to the sale of used goods, specifically addressing whether Kansas would still employ its common law of product liability to transactions or claimants not explicitly discussed in the statute. Westerbeke, 53 J.K.B.A. at 296, 298. Westerbeke wrote:
“Once Kansas applies its product liability law to these situations, however, then the KPLA should apply .... [T]he KPLA is irrelevant to the question of whether strict liability in tort should apply to . . . sales of used products.” Westerbeke, 53 J.K.B.A. at 298-99.
Westerbeke also identified other issues within product liability law that were left unaddressed in the KPLA:
“Undoubtedly, numerous other issues concerning the scope and application of the KPLA will arise. A satisfactory result will usually occur if two basic points are considered. First, except for the limitations contained in the four substantive provisions in the KPLA, the question of the scope and definition of any existing theory of product liability is a matter of judicial determination unaffected by the KPLA .... Second, once the courts have decided the proper scope and application of any theory of product liability, then the KPLA will apply if the situation arising under that theory contains the essential characteristics of ‘harm,’ ‘product seller,’ and ‘product liability claim,’ as defined in section 2.” 53 J.K.B.A. at 298-99.
It is also significant that two of our earlier cases are consistent with the idea that the KPLA works alongside Kansas common law rather than in place of it.
In Patton v. Hutchinson Wil-Rich Mfg. Co., 253 Kan. 741, 752, 861 P.2d 1299 (1993), this court stated that the purpose of the KPLA was “to limit the rights of plaintiffs to recover in product liability suits generally.” And, in Delaney v. Deere & Co., this court noted the purpose of the KPLA as stated in Patton, then said:
“In order to achieve that purpose, the KPLA contains provisions which limit in different ways the ability of a plaintiff to recover. K.S.A. 60-3303 provides that a product seller ‘shall not be subject to liability’ for harm caused after the ‘useful safe life’ of the product has expired. K.S.A. 60-3304 provides that a product is ‘not defective’ under certain circumstances where it was in compliance with regulatory standards when manufactured. K.S.A. 60-3306 provides that a seller ‘shall not be subject to liability under circumstances set forth.” 268 Kan. at 778.
Delaney proceeded to rely on Kansas common law to decide a product liability question placed before this court by certification from the Tenth Circuit. This pattern of analysis demonstrated that, despite the KPLA’s enactment, the Kansas common law of product liability continued to answer all questions on which the statute was less than enlightening.
Kansas federal District Court Judge John W. Lungstrum has made harmonious observations regarding the interaction between the KPLA and the common law:
“[T]here is reason to believe that the KPLA is merely a statutory mechanism that limits a manufacturer or sellers liability, and not a statute providing plaintiffs with an independent right of action.... [T]he purpose of the Act is to limit a plaintiff s ability to recover in a product liability suit. Moreover, the statute does not expressly provide plaintiffs with a right of action. Instead, the Act appears to presuppose the existence of a duty and tiren limit that duty by the terms of the statute. For example, K.S.A. § 60-3305 provides that ‘[i]n any product liability claim any duty on the part of the . . . seller of the product to warn or protect against a danger or hazard which could or did arise in the use or misuse of such product, and any duty to have properly instructed in tire use of such product shall not extend . . .’ to various situations set forth in this section. This section does not define the duty to warn, but merely limits liability in certain circumstances. To this extent the KPLA does not pattern the Model Uniform Product Liability Act in that the latter expressly defines a manufacturer and seller’s basic standards of responsibility. See 44 Fed. Reg. 62, 714, 62, 721-62, 728 (1979).” Cooper v. Zimmer Holdings, Inc., 320 F. Supp. 2d 1154, 1158 n.7 (D. Kan. 2004).
Finally, we also note that sister states with product liability statutes like the KPLA employ a blended approach — combining application of statutory and common law.
Connecticut’s product liability act consolidated all claims based on negligence, strict liability, and warranty. Conn. Gen. Stat. § 52-572m(b) (2011). Thus, its Supreme Court concluded that the act became the “exclusive remedy for claims falling within its scope.” Winslow v. Lewis-Shepard, Inc., 212 Conn. 462, 471, 562 A.2d 517 (1989). However, because Connecticut’s act did not set out requirements for any causes of action, the court also held that the purpose of the act was not to create any new substantive rights but “to ehminate the complex pleading provided at common law.” Lynn v. Haybuster Manufacturing, Inc., 226 Conn. 282, 292, 627 A.2d 1288 (1993); see King v. Damiron Corp., 113 F.3d 93, 95 (7th Cir. 1997). The common law must still be relied upon to fill statutory gaps, specifically, to determine the substantive rights of the parties. LaMontagne v. E.I. Du Pont De Nemours & Co., Inc., 41 F.3d 846, 856 (2d Cir. 1994) (analyzing Connecticut law; “Since the [product liability act] was not meant to eliminate common-law substantive rights but does not itself spell out the elements of the types of claims it consolidates, we conclude that the district court was correct to assess plaintiffs’ theories of recovery in light of the . . . common-law requirements.”).
In Tennessee, the legislature passed its product liability act in 1978, and much of its statute’s language is similar to that in the KPLA. See Tenn. Code Ann. § 29-28-101 et seq. (2000). But the Tennessee law goes further, incorporating the elements from the Restatement (Second) of Torts § 402A: “A manufacturer or seller of a product shall not be hable for any injury to a person or property caused by the product unless the product is determined to be in a defective condition or unreasonably dangerous at the time it left the control of the manufacturer or seller.” Tenn. Code Ann. § 29-28-105 (2000). In First Nat. Bank of Louisville v. Brooks Farms, 821 S.W. 2d 925, 931 (Tenn. 1991), the Tennessee Supreme Court determined that the state’s product liability act was not “a comprehensive enactment of products liability law in Tennessee,” but that it did define certain terms, including “product liability action.” Tennessee, therefore, looks to its common law and its statutory adoption of the Restatement (Second) of Torts §§ 402A and 402B for the elements of a product liability cause of action.
Texas also passed its own product liability act, with language very similar to the KPLA. See Tex. Civ. Prac. & Rem. Code Ann. § 82.001 (1993). The act does not define the liabilities of manufacturers or product sellers, and Texas’ caselaw indicates that the courts look to the common law for the necessary elements of product liability actions.
“Section 82.005 does not attempt to state all the elements of a product liability action for design defect. It does not, for example, define design defect or negate the common law requirement that such a defect render the product unreasonably dangerous. Additionally, the statute was not intended to, and does not, supplant the risk-utility analysis Texas has for years employed in determining whether a defectively designed product is unreasonably dangerous.” Hernandez v. Tokai Corp., 2 S.W.3d 251, 256 (Tex. 1999).
Given all of the foregoing discussion, we conclude that the KPLA does not supersede Kansas common law on the question before us in this case. Rather, it provides only limited information, primarily in the form of reasonable inferences to be drawn from its differences from MUPLA and its specific drafting and amendment history. Kansas common law must fill in the substantial gaps we must navigate to resolve this case.
Content of Governing Law
Having decided that the Kansas common law of product liability retains its essential vitality on all issues not settled by passage of the KPLA, we turn to the content of the governing law, both statutory and common.
In Brooks v. Dietz, 218 Kan. 698, Syl. ¶ 1, 545 P.2d 1104 (1976), this court adopted the doctrine of strict liability in tort, as set out in the Restatement (Second) of Torts § 402A (1964), for the sale of a dangerously defective product. Section 402A states:
“(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) tire seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
“(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.”
Brooks is significant because the text of § 402A thus makes no distinction between sellers of used and new products.
In Kennedy v. City of Sawyer, 228 Kan. 439, 445-46, 618 P.2d 788 (1980), this court identified two purposes of strict liability: “a desire to achieve maximum protection for the injured party and [promotion of] the public interest in discouraging the marketing of products having defects that are a menace to the public.” The Kennedy decision also went on to endorse what is known as a “chain of distribution” liability theory.
“Under the doctrine of strict liability the liability of a manufacturer and those in the chain of distribution extends to those individuals to whom injury from a defective product may reasonably be foreseen, and then only in those situations where the product is being used for the purpose for which it was intended or for which it is reasonably foreseeable it may be used. Winnett v. Winnett, 57 Ill. 2d 7, 310 N.E.2d 1 (1974); see also West v. Caterpillar Tractor Company, Inc., 336 So. 2d 80, 89 (Fla. 1976); Darryl v. Ford Motor Company, 440 S.W.2d 630, 633 (Tex. 1969); Wilcheck v. Doonan Truck & Equipment, Inc., 220 Kan. 230, 235, 552 P.2d 938 (1976).” 228 Kan. at 446.
Again, in Kennedy, we made no distinction between sellers of used and sellers of new products.
Both Brooks and Kennedy were decided prior to enactment of the KPLA. Shortly after enactment, this court decided Lester v. Magic Chef, Inc., 230 Kan. 643, 641 P.2d 353 (1982). In that case, without discussing the KPLA, the majority specifically approved Comment i to §402A, which sets out what is known as the “consumer expectations” test for when a product qualifies as “defective.” Comment i states in part:
“The rule stated in this Section applies only where the defective condition of the product malees it unreasonably dangerous to the user or consumer.... The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.”
In dissent, Justice David Prager discussed the KPLA, arguing that adoption of a “risk-utility balancing” approach instead of a “consumer expectation” test would be more consistent with the legislative design. See Lester, 230 Kan. at 660-61 (Prager, J., dissenting) (citing K.S.A. 60-3304, “reasonably prudent product seller” test). A risk-utility balancing approach finds a product defective when a product is designed in a particular way and the risk or danger inherent therein outweighs the benefits. 230 Kan. at 658. Justice Prager concluded that such a balancing test would address legislative and administrative regulatory standards and provide a defense for those design defects in compliance with those standards, but his view did not prevail.
The next year, 1983, this court decided Mays v. Ciba-Geigy Corp., 233 Kan. 38, 54, 661 P.2d 348 (1983), in which we stated: “[Tjhe plaintiff, to present a prima facie strict liability case, must produce proof of three elements: (1) the injury resulted from a condition of the product; (2) the condition was an unreasonably dangerous one; and (3) the condition existed at the time it left the defendant’s control.”
These elements were to come to be included in the pattern instruction on strict liability. See PIK Civ. 2d 13.21 (1993 Supp.); Siruta v. Hesston Corp., 232 Kan. 654, 668-69, 659 P.2d 799 (1983); PIK Civ. 4th 128.17. Both early and later pattern instruc tions establish three possible types of defects in strict product liability cases: “design defects,” “manufacturing defects,” and “warning defects.” And Mays and Siruta established that, to prevail under a strict liability theory, a plaintiff must show that the product was both defective and unreasonably dangerous. In addition, Siruta is significant for rejecting an “open and obvious danger” rule:
“Simply because the hazard on a piece of equipment is open and obvious does not prevent it from being dangerous to the operator or consumer. The fact that the danger is patent and obvious may be an important factor in determining whether [p]laintiffs fault contributed to his [or her] own injury.” Siruta, 232 Kan. at 664.
In Patton, this court decided that a warning defect case under a theory of strict liability could rest only on the time the product left the manufacturer’s control. Patton, 253 Kan. at 755.
“This distinction reflects the emphasis in strict liability upon the danger of the product rather than the conduct of the manufacturer, i.e., if a product is not rendered unreasonably dangerous by the absence of warnings when it leaves the manufacturer’s control, it cannot at some later date become unreasonably dangerous due to lack of warnings.” Patton, 253 Kan. at 755 (citing Bly v. Otis Elevator Co., 713 F.2d 1040, 1045-46 [4th Cir. 1983]).
Our Patton decision also addressed the interaction of the KPLA with a post-sale duty to warn under a negligence theory. This court observed that K.S.A. 60-3305 did not include language regarding “the time of manufacture” and thus the KPLA did not exclude a cause of action based on a violation of a post-sale duty to warn under a negligence theory. Patton, 253 Kan. at 756.
Finally, in 2000’s Delaney, 268 Kan. 769, this court analyzed the Tenth Circuit’s question: Whether K.S.A. 60-3305(c) applied to a manufacturer’s duly to warn or protect against hazards or only to the duty to warn, as implied by Siruta. K.S.A. 60-3305(c) states:
“In any product liability claim any duty on the part of the manufacturer or seller of the product to warn or protect against a danger or hazard which could or did arise in the use or misuse of such product, and any duty to have properly instructed in the use of such product shall not extend: . .. (c) to warnings, protecting against or instructing with regard to dangers, hazards, or risks which are patent, open or obvious and which should have been realized by a reasonable user or consumer of the product.”
This court held that the legislature intended K.S.A. 60-3305(c) to apply only to warnings and not to manufacturing or design defects, i.e., “hazards.” 268 Kan. at 777. The court found support for this holding in the goals stated in MUPLA:
“MUPLA states that its goals are to ‘provide a fair balance of the interests of both product users and sellers and to eliminate existing confusion and uncertainty about their respective legal rights and obligations.’ 44 Fed. Reg. at 62,716. It further states that ‘[t]he fulfillment of these goals should help, first, to assure that persons injured by unreasonably unsafe products will be adequately compensated for their injuries and, second, to make product liability insurance more widely available and affordable, with greater stability in rates and premiums.’ 44 Fed. Reg. at 62,716. The interpretation advanced by Deere would create an imbalance and frustrate the goals of MUPLA.
“Applying K.S.A. 60-3305(c) to manufacturing and design defects is contrary to a common-sense reading of the statute and is contrary to the espoused philosophy underlying MUPLA which provided some of the rationale for the Kansas Legislature to adopt tire KPLA. See Patton, 253 Kan. at 756[, 861 P.2d 1299]. Adopting an interpretation that would foreclose any action where a danger is open and obvious goes far beyond providing a fair balance of the interest of both product users and sellers. Rather, such an interpretation would tend to discourage product safety by allowing manufacturers and sellers to market products with open and obvious dangers to the consumer where a defect is capable of reasonable correction. We are convinced that if the legislature had meant to turn its back on the modem rule and categorically ehminate any duty on the part of the manufacturer to safeguard against open and obvious dangers, it would have done so in a more explicit manner than the language used in K.S.A. 60-3305(c).” 268 Kan. at 779.
In addition, Delaney considered whether Kansas should follow Comment j of the Restatement (Second) of Torts § 402A or Comment 1 of the Restatement (Third) of Torts: Products Liability § 2 (1998). In its discussion of these provisions, the court made clear that Brooks had adopted the main text of § 402A as Kansas law but had not necessarily adopted all of the comments to that section. The court declined to adopt “that portion of Comment j which holds that a product bearing a warning which is safe for use if the warning is followed[,] is not in a defective condition or unreasonably dangerous.” 268 Kan. at 786. The court did not want to allow
“an adequate warning to absolve the manufacturer of its duty to design against dangers when a reasonably safer design could have been adopted that would have reduced or eliminated the residuum of risk that remains even after a warning is provided. A manufacturer or seller is allowed to produce a product with an unsafe design and still escape liability through the use of a warning.” 268 Kan. at 785.
The court also declined to adopt Comment 1 of the Restatement (Third) of Torts § 2, which states in pertinent part: “[W]hen a safer design can reasonably be implemented and risks can reasonably be designed out of a product, adoption of the safer design is required over a warning that leaves a significant residuum of such risks.” See 268 Kan. at 793. The court based its decision on this point on Kansas’ adherence to the “consumer expectations” test adopted in Lester, remaining convinced that “consumer expectations play a dominant role in the determination of defectiveness.” 268 Kan. at 790, 793. In addition, the court rejected Comment l’s mandate that proof of a feasible alternative design was required to demonstrate the existence of a design defect. Although Kansas law permits such evidence, it is not required. 268 Kan. at 791, 793; see K.S.A. 60-3307(b).
Delaney concluded with the following useful summary of significant product liability law in Kansas:
“[W]hether a design defect in a product exists is determined using the consumer expectations test. A [p]laintiff must show that the product is both in a defective condition and dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchased it, with the ordinary knowledge common to the community as to its characteristics. See Lester, 230 Kan. at 649-654. Betts, 236 Kan. at 115-16. Evidence of a reasonable alternative design maybe introduced but is not required. Siruta, 232 Kan. at 667-68; Jenkins, 256 Kan. at 636. The fact that a hazard is open and obvious or has been warned against are factors to be considered in analyzing whether a product is defective or unreasonably dangerous. The ultimate determination remains whether the product is defective and dangerous beyond a reasonable consumer’s expectations.” 268 Kan. at 792-93.
All of the above discussion of the content of Kansas law demonstrates that we are not writing on a clean slate. We appreciate that, in Sell, 577 F. Supp. at 1399, the federal District Court of Kansas concluded that we would not apply strict liability to sellers of used goods, relying on KPLA’s provisions for a “useful safe life” presumption and repose. Likewise, Stillie, 850 F. Supp. at 961, relied on Sell’s conclusion that we would not impose strict liability on sellers of used goods. But this federal interpretation ignores our precedent and fails to acknowledge the elements we set forth for a strict liability claim in Mays v. Ciba-Geigy Corp., 233 Kan. at 54. Further, Sell did not recognize the defense available to both new- and used-products sellers in K.S.A. 60-3306 (product seller not subject to liability if [a] seller had no knowledge of defect; [b] seller could not have discovered defect exercising reasonable care; [c] seller was not manufacturer; [d] manufacturer subject to service of process in Kansas; [e] judgment against manufacturer reasonably certain to be satisfied).
Indeed, the legislature’s removal of language from the KPLA that would have differentiated between new- and used-product sellers in Kansas and our precedents adopting and applying § 402A of the Restatement, which also does not distinguish between sellers of new or used products, point to a ruling in favor of Gaumer in this case. A seller of used products is “one who sells any product,” and the purchaser qualifies as “the ultimate user or consumer.” § 402A(1). If the seller of the used product is “engaged in the business of selling such a product,” and, assuming the used product “is expected to and does reach the user or consumer without substantial change in the condition in which it is sold,” then nothing— outside of competing policy considerations and/or the persuasive force of contrary decisions from our sister state courts would appear to shield sellers of used products from the potential of strict liability in Kansas. § 402A(1), (2). We now turn to an examination of those policy considerations and those decisions from our sister state courts.
Policy Considerations
As discussed previously, the KPLA does not directly address public policy considerations. But Kansas has recognized several policy rationales for its broadly applicable product liability common law, including: (1) “a desire to achieve maximum protection for the injured party”; (2) promotion of “the public interest in discouraging the marketing of products that have defects that are a menace to the public,” Kennedy, 228 Kan. at 444-46; and (3) a desire to protect consumer expectations. Lester, 230 Kan. 643. These policy considerations favor extension of strict product liability to sellers of used goods.
We note that MUPLA also enumerates several policy considerations in its “Criteria for the Act”:
"(1) To ensure that persons injured by unreasonably unsafe products receive reasonable compensation for their injuries ....
“(2) To ensure the availability of affordable product liability insurance with adequate coverage to product sellers that engage in reasonably safe manufacturing practices ....
“(3) To place the incentive for loss prevention on the party or parties who are best able to accomplish that goal....
“(4) To expedite the reparations process from the time of injury to the time the claim is paid ....
“(5) To minimize the sum of accident costs, prevention costs, and transaction costs ....
“(6) To use language that is comparatively clear and concise.” 44 Fed. Reg. 62,714-15.
Of the six MUPLA policy goals, the first clearly favors extension of, rather than restriction of liability; i.e., it is plaintiff-friendly. The second is neutral in terms of plaintiff- or defendant-orientation, but it militates for clarity in the governing rules to enable potential defendants to secure adequate insurance coverage where needed. The third, given MUPLA’s exclusion of most used-products sellers from liability, implies that it places the burden of loss prevention on manufacturers and sellers for new products and on purchasers and users for used products. The fourth, again, appears to speak to the need for clear and predictable rules that simplify later application, a neutral concept. The fifth appears to address incentives, some of which are designed to motivate potential plaintiffs and some, potential defendants. It also qualifies as neutral on the question before us. The sixth does not appear to address the persons or entities covered by MUPLA at all, only those responsible for drafting it.
Rossville advances two interrelated policy considerations as reasons to avoid extension of strict liability to sellers of used products: (1) The cost of used goods will increase, and therefore (2) dealers of used products will be driven out of business.
In Rossville’s view, sellers of used products, often small family businesses or sole proprietorships, will be forced to forego selling “as-is” altogether for fear of future liability and high insurance costs. If not forced completely out of the used-products business, they will have to raise their prices to account for the increased risk attached to such selling. Either way, buyers are likely to seek out “as-is” products or lower priced products elsewhere. For instance, rather than buying a used piece of agricultural equipment from a dealer such as Rossville, a Kansas farmer will instead buy directly from another farmer. In the alternative, the farmer may choose to buy from a dealer in a neighboring state that has not extended strict liability to sellers of used products. Either way, Rossville reasons, at least the same number of products likely to cause injury will remain in the stream of commerce and in use in Kansas, harming both purchasers and sellers, but the rule proposed by plaintiff will offer no offsetting decrease in the social and economic cost of injuries.
Although Rossville’s policy considerations appear valid, they do not account for the defense provided by K.S.A. 60-3306. As referenced above, it provides that a seller will not be hable if it can prove that it lacked knowledge of a product’s defect, lacked a duty to inspect or complied with such a duty, and that the manufacturer is solvent and susceptible to jurisdiction. This statutory defense suggests no distinction between used and new sellers, and it is likely it will often be well-suited for a defendant such as Rossville, a used-products seller of farm equipment that may not know the history of an item and has no duty to inspect for defects.
At least one Missouri commentator has recognized three policy considerations other than risk reduction, i.e., the idea of shifting the costs of injuries by spreading them among all consumers equally through increased prices: (1) protection of consumer expectations, (2) prevention of waste through secondhand markets, and (3) compensation of victims injured by product defects. See Mechum, Strict Liability and Used Car Dealers After the Chrysler and General Motors Bankruptcies, 66 J. Mo. B. 14, 17-18 (2010). We have already discussed the Kansas common-law’s reliance in part on protection of consumer expectations and a desire to fully compensate victims injured by product defects. Prevention of waste through secondhand markets refers to selling of products to dealers in used goods, thereby saving time and energy and possibly motivating a better price. 66 J. Mo. B. at 17. As Rossville suggests, imposition of strict liability could threaten the continued existence of secondhand markets “because dealers may not want to risk the tremendous and unpredictable expense.” 66 J. Mo. B. at 17. In addition, compensation of the victim and deterrence of negligent and worse conduct are, of course, general goals of tort law. Kennedy, 228 Kan. at 445-46; Restatement (Second) of Torts § 901 (1979) (rules for determining damages based on the following purposes: “[a] to give compensation, indemnity or restitution for harms; [b] to determine rights; [c] to punish wrongdoers and deter wrongful conduct; [d] to vindicate parties and deter retaliation or violent and unlawful self-help”).
Our review of the policy considerations already mentioned in Kansas caselaw and those advanced by MUPLA, Rossville, and the literature leads us to the conclusion that, not surprisingly, there are strong policy arguments on both sides of the question before us. In this situation, we are ever mindful of the usual allocation of policy making to the political branches of our government rather than this court. See Kansas Dept. of Revenue v. Powell, 290 Kan. 564, 570, 232 P.3d 856 (2010) (citing State, ex rel. Londerholm v. Columbia Pictures Corp., 197 Kan. 448, 455, 417 P.2d 255 [1966]). In addition, here we have some previous indication of the policy direction at least one of those branches would take. The legislature made a deliberate choice to remove language from the KPLA that would have differentiated sellers of new products from sellers of used products, and we are reluctant to deviate from its selected path. This is particularly true when that path appears to be consistent with a careful reading of our precedents. In short, policy considerations do not dissuade us from ruling that sellers of used products may be subject to strict liability in Kansas.
Other States’ Decisions
Several courts in our sister states have considered the question before us in this case. Although decisions are split, a slight minority favor application of strict liability to at least some sellers of used goods.
Six states have applied strict liability to nearly all sellers of used products.
The Wisconsin Supreme Court did so in the context of the sale of a used shotgun in Nelson v. Nelson Hardware, Inc., 160 Wis. 2d 689, 467 N.W.2d 518 (1991). The court’s rationale was Restatement (Second) of Torts § 402A itself, holding that the language of § 402A did not preclude sellers of used products as defendants; rather, its plain language applied to sellers of any products. 160 Wis. 2d at 702-03. The court appreciated that Comment f of § 402A might immunize sellers of used goods who were not in the business of selling; but, in the case before it, the defendant was in the business of selling both new and used goods. 160 Wis. 2d at 703. Its holding was specific and tailored to § 402A: Strict liability claims may be maintained against sellers of used goods when the defective condition causing harm to the consumer of a used product arises out of original manufacturing processes and when the seller of the used product is in the business of selling such products. 160 Wis. 2d at 707-08.
In Jordan v. Sunnyslope App. Prop. & Plumbing, 135 Ariz. 309, 314, 660 P.2d 1236 (Ct. App. 1983), the Arizona Court of Appeals also interpreted the Restatement (Second) of Torts § 402A to permit strict liability claims against a used-goods seller. The court relied upon the fact that Arizona product liability law required plaintiffs suing under a strict liability theory to prove that a product was unreasonably dangerous. 135 Ariz. at 314. This requirement guarded against sellers becoming insurers of the products they sold. 135 Ariz. at 314.
One Connecticut court also has directly addressed the question of applying strict liability to sellers of used goods. In Stanton v. Carlson Sales, Inc., 45 Conn. Supp. 531, 535, 728 A.2d 534 (1998), a trial-level court held that strict liability applied to sellers of used
“This analysis is confirmed, at least to some extent, by the text of the Act itself. General Statutes § 52-572n(a) provides that, ‘A product liability claim ... may be asserted and shall be in lieu of all other claims against product sellers, including actions of negligence, strict liability and warranty, for harm caused by a product.’ ‘Product seller’ is a term of art. It is defined by General Statutes § 52-572m(a) as ‘any person or entity, including a manufacturer, wholesaler, distributor or retailer who is engaged in the business of selling such products whether the sale is for resale or for use or consumption.’ The statutory text does not distinguish between sellers of new and used products. The Act contains no language limiting its application to cases involving design or manufacturing defects in new products. As die Minnesota Court of Appeals observed in an analogous case, ‘If the legislature had wanted to place these restrictions on the law, it could have done so.’ Gorath v. Rockwell International, Inc., 441 N.W.2d 128, 132 (Minn.App.1989).” (Emphasis added.) 45 Conn. Supp. at 535.
Unlike the KPLA, the Connecticut act includes a provision stating explicitly that a product liability claim may be asserted against “product sellers.” See Conn. Gen. Stat. § 52-572n (2011) (“A product liability claim as provided in sections 52-240a, 52-240b, 52-572m to 52-572q, inclusive, and 52-577a may be asserted and shall be in lieu of all other claims against product sellers, including actions of negligence, strict liability and warranty, for harm caused by a product.”).
New Jersey is the fourth state in which strict liability has been applied to sellers of used goods. One of its superior courts relied in part on economic theory, stating:
“An economic analysis of enterprise liability, which includes direct as well as indirect costs, would charge those in the business of selling a defective product with responsibility for all harms, physical and economic, which result from its use. [Citation omitted.] To a considerable extent — with respect to new goods — the manufacturer bases the cost of his product on his expenses, which include damages caused by the product and insurance to cover those damages. This cost is spread among all the customers for that product; it reflects the justifiable expectations of customers regarding safety, quality and durability of new goods. Sellers of used goods may similarly distribute their costs of doing business which, in turn, will reflect what is considered by the public to be justifiable expectations regarding safety, qualify and durability of used goods.
“[R]ealistic expectations of quality and durability will be lower for used goods, commensurate with their age, appearance and price. However, safety of the general public demands that when a used motor vehicle, for example, is sold for use as a serviceable motor vehicle (and not as junk parts), absent special circumstances, the seller be responsible for safety defects whether known or unknown at time of sale, present while the machine was under his control. Otherwise, the buyer and the general public are bearing the enterprise liability stemming from introduction of die dangerously defective used vehicle onto the public highways.
. . .” Turner v. International Harvester Company, 133 N.J. Super. 277, 288-89, 336 A.2d 62 (1975).
In Ortiz v. Farrell Co., 171 N.J. Super. 109, 114, 407 A.2d 1290 (N.J. Super. 1979), another New Jersey superior court determined that, under New Jersey common law, strict liability should be applied to sellers of used goods. It relied on two prior cases, holding that “it [wa]s not necessary to show that a defendant created a defect, but only that the defect existed when the product was distributed by and under a defendant’s control. Vendors of used products may also be held to strict liability account.” 171 N.J. Super. at 115.
The Texas Court of Appeals also has relied on § 402A of the Restatement (Second) of Torts to extend strict liability to sellers of used products. In Hovenden v. Tenbush, 529 S.W.2d 302, 306 (Tex. 1975), it held:
“We find nothing in Sec. 402A, or in the accompanying comments, which suggests that the rule there announced is not applicable to dealers in used products. The liability is imposed on the seller of ‘any product.’ Neither the rule nor the commentary contains any language which can fairly be interpreted as making the rule applicable only to sellers of new products.”
The Washington Court of Appeals has done likewise. In Thompson v. Rockford Machine, 49 Wash. App. 482, 488, 744 P.2d 357 (1987), it stated:
“The paramount policy to be promoted by the rules of strict liability is the protection of otherwise defenseless victims of manufacturing defects and the spreading throughout society of the cost of compensating them. The theoretical foundation of strict liability is that manufacturers who place their products in the stream of commerce impliedly represent their goods as safe for intended use. [Citations omitted.] These objectives are furthered by holding a dealer of used products strictly liable. Nothing in section 402A requires the seller to be in the ‘initial’ chain of distribution, and there is no justification for finding that dealers of used goods as a class cannot shift losses, distribute costs, or insure against losses. Thus, we hold that section 402A applies to a dealer of used products.”
In addition to Wisconsin, Arizona, Connecticut, New Jersey, Texas, and Washington, courts in three other states have been willing to apply strict liability to sellers of used products when the product in issue has been remanufactured or repaired.
The Supreme Court of South Dakota extended strict liability to a seller who rebuilt and then sold a used product in Crandell v. Larkin and Jones Appliance Co., 334 N.W.2d 31 (S.D. 1983). The primaiy justification for the extension was protection of the expectations of consumers of remanufactured used products. The court first concluded that it was possible to have a breach of the warranty of merchantability with respect to used goods. If so, the court reasoned, strict liability also would be appropriate if the product at issue were unreasonably dangerous. 334 N.W.2d at 34.
Distinguishing this South Dakota precedent, the Eighth Circuit held that strict liability would not apply under that state’s law to a seller of a used commercial clothes drying machine, sold “as-is,” with no remanufacture or repair prior to sale. Wynia v. Richard-Ewing Equipment Co. Inc., 17 F.3d 1084 (8th Cir. 1994). The court interpreted a provision of South Dakota’s product liability act to inject a negligence element into any claim of strict liability against a seller. The South Dakota statute, unlike the KPLA, prohibits strict liability claims against “any distributor, wholesaler, dealer or retail seller” for latent defects, unless the plaintiff can show that the defendant “knew, or, in the exercise of ordinaiy care, should have known of the defective condition of the final product.” 17 F.3d at 1088-89 (citing Peterson v. Safway Steel Scaffolds Co., 400 N.W.2d 909, 915 [S.D. 1987]).
The Supreme Court of Alaska also has applied strict liability selectively, allowing the claim against a seller of a used diesel generator when a third-party repair company remanufactured the generator at seller’s instruction prior to sale. Kodiak Elec. Ass’n v. DeLaval Turbine, Inc., 694 P.2d 150, 153 (Alaska 1985). The court declined to allow strict liability against the repair company. 694 P.2d at 154 (citing Swenson Trucking & Excavating, Inc. v. Truckweld Equipment Co., 604 P.2d 1113, 1117 [Alaska 1980]).
The California Court of Appeals also recently held that a seller of used goods could not be strictly hable for defects unless it had rebuilt or reconditioned the product before sale. Arriaga v. CitiCapital Commercial Corp., 167 Cal. App. 4th 1527, 1540, 85 Cal. Rptr. 3d 143 (2008). The court stated that the used-goods seller who rebuilds or remanufactures a product steps into the shoes of the manufacturer.
“Although die retailer of a product may play a substantial part in ensuring that the product is safe or may be in a position to exert pressure on the manufacturer to that end, this risk reduction rationale is inapplicable to a used goods dealer. [Citation omitted.] The used goods dealer is normally entirely outside the original chain of distribution of the product. [Citation omitted.] To impose such liability would, as a practical matter, require all dealers in used goods routinely to dismantle, inspect for latent defects, and repair or recondition their products, thus effecting a radical change in the nature of the used product market.” 167 Cal. App. 4th at 1540.
Minnesota also resides in the category of states with limited application of strict liability to sellers of used goods. According to its Court of Appeals, instead of liability rising and falling on remanufacture or repair, it depends on proof that the seller had knowledge of the defect. See Gorath v. Rockwell Intern., Inc., 441 N.W.2d 128, 132 (Minn. Ct. App. 1989) (used paper cutter; statutory defense makes it difficult for plaintiff to recover from used seller). In addition, the Minnesota court held that strict liability against a used-goods seller was justified only when the salesperson was more than a passive middleman and had some involvement with the condition of the product. 441 N.W.2d at 132.
Five states have decisions generally rejecting strict liability against sellers of used products. Another, New York, rejected application of strict liability against a used-goods seller in a particular case, but it did not categorically reject its application to sellers of used products. See Jaramillo v. Weyerhaeuser Co., 12 N.Y.3d 181, 192-93, 878 N.Y.S. 2d 659, 906 N.E.2d 387 (2009).
The Oregon Supreme Court’s opinion in Tillman v. Vance Equipment Company, 286 Or. 747, 596 P.2d 1299 (1979), dealt with defects in a 24-year-old crane sold “as-is” by the defendant, a used equipment dealer, to the plaintiffs employer. 286 Or. at 749. To determine whether strict liability should extend to sellers of used products, the Oregon Supreme Court reassessed its rationale for adopting strict liability in the first place, holding compensation of victims might justify extending strict liability to used dealers. 286 Or. at 754. The court determined that, in the context of used equipment sales, a reasonable buyer knows that the seller makes no representation of the quality of the product simply by placing the product on the market. 286 Or. at 755. Further, a used-goods dealer is normally outside the chain of distribution of the product, with no direct relationship to the manufacturer and lacking a ready channel of communication to exchange information about dangerous defects. 286 Or. at 756. Given the low value of many transactions in the used-goods market, the court held that, in the absence of some representation of quality beyond the sale itself or of a special relationship between the used-goods dealer and the manufacturer, strict liability should not apply to the seller of used goods. 286 Or. at 757.
Other jurisdictions that have generally rejected an extension of strict liability to used-goods sellers have followed a rationale similar to that of the Oregon Supreme Court. See Allenberg v. Bentley Hedges Travel, 22 P.3d 223, 230 (Okla. 2001) (following Tillman, concluding that “as-is” used sales, when reasonable consumer has lower expectations and seller has no close relationship with the manufacturer, may not trigger strict liability); Peterson v. Idaho First Nat. Bank, 117 Idaho 724, 791 P.2d 1303 (1990) (rejecting public safety arguments, holding buyer of used goods does not expect either express or implied representations of quality); Grimes v. Axtell Ford Lincoln-Mercury, 403 N.W.2d 781 (Iowa 1987) (declining to apply strict liability to used car dealer when defect was not discoverable even with reasonable inspection); Brigham v. Hudson Motors, Inc., 118 N.H. 590, 392 A.2d 130 (1978) (declining to apply strict liability to used car dealer); Peterson v. Lou Bachrodt Chevrolet Co., 61 Ill. 2d 17, 329 N.E.2d 785 (Ill. 1975) (declined to extend strict liability to used car dealer, even when dealer might have discovered defect that led to injury); cf. Jaramillo, 12 N.Y.3d at 192-93 (burden of strict liability onerous, should be imposed only on manufacturers, sellers with relationship to manufacturer; imposition of strict liability on other used-products seller not foreclosed).
We believe the weight of the most persuasive precedent from our sister states reinforces our preliminary conclusion that strict liability should be available in Kansas against a seller of a used product. See Powell, 290 Kan. at 570. Given the plain language of the KPLA and its intersection with our precedent adopting Restatement (Second) of Torts § 402A, application of strict liability against a seller of used products appears to be consonant with previously declared and implied policy. We also note that the defense provided both new and used product sellers under K.S.A. 60-3306 should prevent the sky from falling on potential defendants.
Conclusion
Kansas law permits pursuit of a strict liability action against the seller of a used product. The decision of the district court is therefore reversed. The Court of Appeals is affirmed. The case is remanded to the district court for further proceedings consistent with this opinion.
Davis, C.J., not participating.
Michael F. Powers, District Judge, assigned. | [
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The opinion of the court was delivered by
Kingman, C. J.:
This was an appeal from the determination of the county commissioners of Nemaha county as to the value of certain lands of defendant in error attempted to be appropriated by plaintiff in error as a right of way for its railroad. The errors alleged are numerous, and most of them of little importance, and they will he decided briefly in the order in which they are presented. One observation may be made that should be borne in mind in the consideration of many of the objections urged to the proceedings, and which may be taken as a reason why we do not more particularly notice some of the points made by plaintiff in error; and that is this: The action of the commissioners in valuing the land and determining the damages thereto hy the proposed 'right of way is at the instance of the Eailroad Company, and is for its benefit. Without these proceedings the company obtain no rights. Having by means of these proceedings taken possession of the land, the company will not, on appeal of the land-owner, be heard in its objections that the proceedings were irregular and informal. If the land-owner is willing to waive such irregularities, the Company, at whose instance and for whose benefit the proceedings were instituted, and under whose direction they have been, conducted, and who is in the enjoyment of the beneficial results thereof, is estopped by its own action from asserting mere irregularities on appeal by the land-owner. With these remarks we proceed to notice the several points made.
I. The appeal bond was approved by the county commis-' sioners. The court held this insufficient and gave the appellant two days to file a new bond. This was done, and under § 181, p. 802, Gen. Stat., was properly done. Although the law is obscure it is in our opinion the best construction that the county clerk is the proper officer to approve the bond. See Gulf Railroad Co. v. Owen, ante, p. 409.
II. The case on appeal was entitled “Robert Orr v. St. Joseph & Denver City Railroad Co.;” and plaintiff in error moved to dismiss on that ground. The court refused. "We think the case was correctly entitled; but if not it was no cause for dismissal.
III. It is claimed that Orr should have filed a petition, or a bill of particulars. This seems the better practice, but no motion was made to compel him to do so; and the omission could not be raised on an objection to the evidence.
IY. A motion was made for a change of venue, supported by numerous affidavits. A much larger number of affidavits were filed by Orr controverting the facts stated in the motion. Under these circumstances we cannot say that the court abused its discretion in refusing to grant the motion.
Y. The report of the commissioners was properly received in evidence to show what land was valued by the commissioners. The company designates to the commissioners what land it proposes to take, and there is no other evidence of that fact except their report, at least none so satisfactory-as a record made by legally constituted officers acting at the instance and, so far as the land proposed to be taken is concerned, under the direction of plaintiff in error.
YI. The inquiry as to the value of the land and the damages thereto was directed to the time when the commissioners filed their report. It is insisted that it should have been ruled to the time when the land was really appropriated. So far as this case presents that question, the ruling of the court was correct. There may be questions of a constitutional character not raised in this case that would make the time of appropriating the land and filing the report two very different periods; but ordinarily the correct time to which to confine the valuation is the time of filing the commissioners’ report. The appeal is from that decision, and on appeal the time without great change of circumstances remains the same. The land-owner may perhaps be in a condition to insist upon the valuation being fixed at the time of appropriation, but the company by its own action have fixed, the time and are not at liberty to change it at their pleasure. It was proper to show by testimony that the damage to the land is greater by taking a part one hundred feet in width diagonally through it, than it would be if the part taken was in such a place as to leave the land on either side of it bounded by lines forming right angles. The road having been built before the appeal was tried, it was proper to show by the testimony how high the embankments were built and the depth of the ditches dug on the land appropriated. These facts tended to prove the actual damages to appellant’s land by the building of the road, and this was one of the injuries for which he was entitled to recover in this case. Had not the road been built the same facts would have been provable by the profile of the proposed road, or by any other attainable evidence. It was easier perhaps and quite as satisfactory to show the exact condition of the embankments and ditches as constructed, and the injuries resulting therefrom to appellant’s land. Eor this purpose the evidence was admissible. It was not admissible to recover for specific damages done to the growing crops in a particular case, nor was any attempt made to so use it, as far as the record discloses.
YII. The plaintiff in error offered evidence to show that benefits accrued to the land of appellant by reason of building the road. The court refused to permit, any evidence on that point to go to the jury, and correctly. Sec. 4 of art. 12 of the constitution is conclusive on this point.
VTII. Plaintiff in error offered to introduce in evidence the act of incorporation of the Marysville or Palmetto and Eossport Eailroad Company by reading from a volume of public laws an act approved Feb. 17, 1857, and published by authority of law. This was properly excluded by the court. There is nothing in this record showing that the charter offered in evidence has any connection with the road of plaintiff in error, nor was there any offer to show that fact. Therefore the evidence, if it had been proper otherwise, was wholly irrelevant. The names indicate that the railroads were not the same, and the provisions in the charter of one would have no bearing as to the liabilities of another.
IX. The appellant introduced as a witness Mr. Fitzwater who among other things testified that as agent of appellant he had had an offer for ten acres of said land. "Whereupon appellant asked him the following question: “"What was that offer?” The question was objected to and the objection overruled and the question was answered. It is not easy to define exactly what proof is admissible to enable the jury to ascertain the value of the land taken. There is some discrepancy in the rulings on this point, more apparent than real perhaps when the cases are carefully examined. In Massachusetts it is held that the land-owner may prove recent sales of other lands in the vicinity, similarly situated, and about the same time, subject however to be explained by any peculiar circumstance attending such sales. This evidence is admitted as tending to show a fact from which a jury may infer the value of the land taken: Shattuck v. Stoneham Branch Rly., 6 Allen, 115; Wyman v. Lexington & West Cambridge R. R., 13 Metc., 326. These rulings are certainly very liberal and give quite as much latitude in the introduction of testimony as is compatible with the law of evidence. "We can find no case, nor can we recall any principle, that would permit the proof of a/n offer for property as tending to show its value. It is a kind of proof that is so easily manufactured that its admission would be too dangerous to be tolerated. For the error in admitting this testimony the case must be reversed and a new trial awarded.
On the trial plaintiff in error asked four instructions. The second and third were given, and the first and fourth were properly refused as they in substance directed the jury to deduct the benefits received by reason of the construction of the road from the value of the land and from the damages resulting thereto. Such a measure of damages is contrary to our laws. See § 4 of art. 12 of the constitution.
All the Justices concurring. | [
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In a letter dated May 16, 2011, addressed to the Clerk of the Appellate Courts, respondent Mark P. Tilford, of Corpus Christi, Texas, an attorney admitted to the practice of law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (2010 Kan. Ct. R. Annot. 362).
At the time the respondent surrendered his license, an investigation was pending on a complaint in accordance with Supreme Court Rule 211 (2010 Kan. Ct. R. Annot. 327). The complaint concerns allegations of misconduct that respondent violated Kansas Rule of Professional Conduct 8.4(b) (2010 Kan. Ct. R. Annot. 603).
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 Mark P. Tilford be and he is hereby disbarred from the practice of law in Kansas, and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Mark P. Tilford 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 (2010 Kan. Ct. R. Annot. 370). | [
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The opinion, of the court was delivered by
Yalehtine, J.:
This action was in all probability brought to this court for the mere purpose of obtaining a decision of the question involved therein, for the mere purpose of making it a test case. The plaintiff Dow filed a petition in the district court alleging among other things that the plaintiff was a brakeman on the defendant’s railroad, that he was injured through the negligence of the conductor on the same road, lie carefully alleged everything necessary to a recovery except that he carefully avoided alleging that the defendant was negligent in employing the conductor, or in retaining him after he was so employed. The defendant demurred to this petition on the ground that it did not state facts sufficient to constitute a cause of action. The court sustained the demurrer, and the plaintiff excepted, and without amending his petition and going to trial before a jury he brings the case to this court. The defendant has filed a very able and elaborate brief in this court, citing all the leading authorities on both sides of the question. In fact, it would seem that more solicitude is entertained concerning the question involved in the case than concerning the case itself. It would seem to be the desire that the decision should be for the railway company, more as a precedent for future decisions than for this particular case. But notwithstanding the ability and zeal displayed on'the part of the defendant, which would naturally make us cautious, we are inclined to think the great weight of authority if not of reason, is with the defendant. It is probable, however, that both authority and reason are with the defendant. The paramount object of nearly all the rules of law concerning the operation of railroads is security to the person and lives of human beings, and particularly security to the persons of passengers being transported on the trains from one portion of the country to another, and in order to insm-e this security the railroad companies are held to the strictest accountability with regard to passengers. They must use the utmost care and skill within the scope of human foresight or human knowledge practicable. They are liable to passengers for the slightest negligence on the part of their agents or servants. But this is not all. A rule must be adopted that will insure the most skillful and trustworthy agents and servants. It is always greatly to the interest of the company to employ none but the most skillful and trustworthy, first, because of their great liability to passengers for the negligence of their servants and agents, and second, because, if the company do not use proper diligence in employing skillful and trustworthy servants and agents the company will be liable for the negligence of such servants and agents to other servants and agents. But it is also the policy of the law to make it to the interest of every servant or agent of the railroad company to see that every other servant or agent of the company is competent and trustworthy. This may be done by making it to the interest of every employee of the railway company to inform the company of every act of any other employee showing a want of skill, care or competency. The employees of the railway company have the best opportunities of knowing the competency and trustworthiness of the other employees of such company; and if they do not think the other employees are competent or careful, let them either inform the company,' so that the incompetent or negligent employees may be discharged, or themselves quit the service of the company. Who can know better whether a conductor of a railroad train is competent and trustworthy than the brakeman on the same train? And if he is willing to work with a conductor that is not competent or trustworthy, without informing the railway company of the same, let him bear the consequences. If he is willing to work with such a conductor where the lives of many human beings are imperiled every day, and not inform the company, he deserves punishment. If the company be informed of the incompetency or untrustworthiness of its conductor it will then be liable for any injuries to the other employees subsequently caused by its negligence. Let every employee then take this precautionary measure, and then if the company employ or retain an incompetent person after being so informed it will be liable for all tbe consequences. Of course every company must desire to know whether their employees are competent and trustworthy or not.
As to passengers, and generally as to any person not in the employ of the company, the negligence of any agent or servant of the company is the negligence of the company. As to such persons even the negligence of the brakeman is the negligence of the company. But as between co-employees no one is peculiarly the representative of the company more than another, except perhaps the higher officers whose duty it is to employ and discharge the other employees, aad therefore as between co-employees the negligence of none but the higher officers aforesaid is the negligence of the company. If such higher officers are not careful and diligent in employing and discharging or retaining the other employees then the company is responsible to the other employees for the negligence of such employees as have been employed or retained without proper care. The decision of the court below must be affirmed.
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The opinion of the court was delivered by
Kingman, O. J.:
The facts necessary to understand the decision in this case are as follows: The note on which suit was brought was dated April 30,1867, and was due in six months from date. The note was secured by a mortgage. The petition alleged a waiver in the mortgage of the right of redemption in pursuance of the law which went into effect just before the execution-of the mortgage. An answer was filed, which, when the case was called for trial, was withdrawn, and the plaintiff took his judgment, which was for the money due and costs, and an order for the sale of the premises mortgaged to pay the judgment. The premises were sold, and due return of the sale was made to the court. At this point in the proceedings, the plaintiff (who is plaintiff in error,) at the April Term, 1869, moved the court for an order of the court to correct mino pro fame the original judgment rendered at the November Term, 1868, so that the same should be, “ that the defendants and each of them should be forever barred and foreclosed of any and all right of redemption in and to the said mortgaged premises, and that a deed to the same be made to the purchaser thereof by the sheriff.” The court, “ having heard the proofs and papers in the case,” overruled the motion, to which plaintiff excepted. At a subsequent day of the term the sale was confirmed, and the sheriff ordered to make to the purchaser, Ann Smith, acertificate of sale. The plaintiff excepted to so much of the order as directed the ceri tificate to issue. The sale was for $652.24, a sum greater than the judgment and costs of sale.
The plaintiff in error claims, first, that it was error to refuse to correct the judgment entry as requested; and second, that the purchaser was entitled to a deed on the sheriff’s sale without such order. If the second objection be tenable, then it is manifest there was no error in the first to the prejudice of any one. The correctness of the decision however does not depend upon a conclusion wrenched from the arguments of plaintiff in error.
A mmo pro twno order is made to subserve the purposes of justice, but never to do injustice: 2 Bouvier, 247. Let us see how the rule would affect this case: We will consider , the case as though the mortgage authorized the allegation in the petition, as to the waiver of the right of redemption, and that the plaintiff was entitled to have had the judgment originally entered as he attempted to have it done by his motion, and that a refusal to so enter the judgment at the time would have been such error as this court would have corrected on review. Still, it does not follow that it was error to refuse to correct it when the motion was made. Eights had accrued under it, and interests had passed by virtue of it; and if any of these were to be affected prejudicially by granting the motion, then it ought not to have been done. At the time, and under the facts, the right to redeem land sold at sheriff’s sale, was the general law. Certain exceptions had been made by a law passed before this debt was created. Lands sold subject to redemption would bring less than if sold x ° absolutely, untrammeled by the contingency of being redeemed. The sale was made under a judgment such as was usually rendered when redemption was allowed. The purchaser does not go bach of the judgment in his examination of the authority of the sheriff to sell the property, except to see if the court had jurisdiction. The bids are made in view of the judgment as it is; and where the contingency of redemption exists, the bidder bids les& than he would if the sale were absolute. ’Whatever he may have bid less is just what (in his estimation) the right of redemption is worth to the defendants. Having sold the property at the less price, the plaintiff comes into court and asks that the judgment be so amended mmo pro twio as to cut off the right of redemption. This would be a great injustice to the defendants. They were entitled to have their proj)~ erty sold at an increased price, realized from an absolute sale, or, it having been sold at the less price on account of that opportunity having been left open to them, they were entitled to its benefits. To have corrected the judgment at the time the motion was made would have deprived them of both advantages. The motion was rightfully refused.
But was the purchaser entitled to a deed under the facts as shown ? For the reason suggested on the first point, we are not inclined to disturb the decision of the court below, unless compelled to do so by the law. In confirming the sale the court is only to “examine the proceedings of the officer;” and if they are found to be in conformity to the law, the sale must be confirmed. To the action of the court, so far, no objection is made, and no error is claimed. When ^lie ga|e confjrmecj the plaintiff is entitled to his money, and the sheriff is bound to pay it to him to the extent of his judgment. In this case such payment would satisfy plaintiff’s claim and something more. He not being the purchaser has no more interest in the proceedings of the court. Whether the sheriff shall make a deed to the purchaser, or a certificate of sale, is a question in which the purchaser and the defendants are alone interested, and neither of these parties are complaining of the action of the court. If it be said that the court is screening itself behind a technicality, the answer is, that if such is the fact it is in the interest of justice and fair dealing. We are disposed to think the court below decided correctly. We feel sure that the decision was not prejudicial to the rights of the plaintiff in error. Wherefore the decision is affirmed.
Yalentine, J., concurring.
Brewer, J., not sitting. | [
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The opinion of the court was delivered by
'Valentine, J.:
This is a petition in error brought in this court by McCulloch, who was plaintiff below, to reverse an order of the district court setting aside a judgment in favor of the plaintiff and against the defendants. The said judgment was rendered on default. Afterwards it was set aside on motion of the said defendants, and they were allowed to file an answer to the plaintiff’s petition. The action was for the recovery of real estate.
The first question arising in the case is whether said order of the district court is reviewable in this court. The supreme court has such appellate jurisdiction only as is provided by law: Const., art. 3, § 3. The law (civil code, Gen. Stat., page 735,) provides as follows:
“ Sec. 542. The supreme court may reverse, vacate or modify a judgment of the district court, for errors appearing on the record; and in the reversal of such judgment or order, may reverse, vacate or modify any intermediate order involving the merits of the action, or any portion • thereof. The supreme court may also reverse, vacate or modify any of the following orders of the district court, or a judge thereof: First, A final order. Second, An order that grants or refuses a continuance; discharges, vacates or modifies a provisional remedy; or grants, refuses, vacates or modifies an injunction; that grants or refuses a new trial; or that confirms, or refuses to confirm, the report of a referee; or that sustains or over rules a demurrer. Thwd, An order that involves the merits of an action, or some part thereof.
“ Sec. 543. An order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right made in a special proceeding, or upon a summary application in an action after judgment, is a final order which may be vacated, modified or reversed, as provided in this article.”
These are the only provisions of law prescribing what proceedings of the district court in civil cases may be reviewed by the supreme court. Now we suppose it will not be claimed that said order of the district court setting asidé* said judgment and default, and permitting the defendants to answer, is a judgment of any kind, and therefore we must look further and see if it is such an order as may be reviewed by the supreme court.
First: Is it “a final order?” "We suppose not; for if it is a valid order the suit is still pending in the district court just as it, was before any judgment was rendered in the case. "We suppose it will not be claimed that it is “ an order affecting a substantial right in an action,”and which “ in effect determines the action and prevents a judgment.” Nor will it be claimed that it is “ an order affecting a substantial right, made in a special proceeding” for the order was made in the main action itself, and not in a special proceeding; nor do we,think it can be claimed that it is “an order affecting a substantial right made upon a summary application in an action after judgment,” for such an order undoubtedly has some connection with the enforcement of the judgment and not with vacating it or setting it aside. An order made upon a summary application after judgment, is not an order that attacks the judgment, as an order granting a new trial after judgment, or an order setting aside or vacating a judgment for some irregularity; neither is it an order made after the judgment has been set aside, vacated, or reversed; it is simply an order made after judgment concerning some proceeding connected with the judgment, and for its enforcement, while the judgment is still valid and subsisting, and without questioning the validity or regularity of the judgment; it is simply an order taxing or re-taxing costs; an order confirming or setting aside a sheriff’s sale; an order amercing the sheriff oí the clerk for refusing to pay over money collected or received on the judgment; an order in aid of execution, or some other such summary order in the case.
Second: It will not be claimed that the order of the district court setting aside such judgment and default and permitting the defendants to answer is “ an order that grants or refuses a continuance, discharges, vacates, or modifies a provisional remedy, or grants, refuses, vacates, or modifies an injunction,” or “ that refuses a new trial;” and we hardly suppose it will be claimed that it is an order “ that grants a new trial,” as no former trial had ever been had, nor even any issue of either law or fact had ever been made upon which any trial could have been had. “A new trial is a re-exa/nvmation in the same court of an issue of fact, after a verdict by the jury, report of a referee, or decision by the court.’’-Code, § 306. “An issue of fact arises, first, upon a material allegation in the petition, controverted by the answer; or second, upon new matter in the answer controverted by the reply; or third, upon new matter in the reply which shall be considered as controverted by the defendant without further pleading.’’-Code, § 263. Not even an issue of law had ever been raised in this case, as the said defendants were wholly in default, not only having failed to answer, but also having failed to demur.-Code, § 262. Neither will it be claimed that the said order of the court below is one “that confirms or refuses to confirm the report of a referee, or that sustains or overrules a demurrer.”
Third: Neither will it be claimed that said order is “ an order that involves the merits of the action, or some part thereof.” It simply opens up the judgment and the default, and allows the said defendants to answer, so that the merits of the action may be heard and considered, and the case disposed of on its merits. Courts will always as far as they can favor rulings that will allow cases to be disposed of on their merits, and will always as far as they can discountenance every attempt to prevent cases from being beard on tbeir merits. We do not tbink tbat tbe said order of tbe district court is at tbe present time reviewable in tbis court, and therefore tbe petition in error must be dismissed.
All tbe Justices concurring. | [
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The opinion of the court was delivered by
Yalkntinb, J.:
Only one question requires our special consideration in this case, and that is, whether John T. McWhirt and certain other persons acting with him were on the 16th of March, 1869, de facto the board of county commissioners of the county of Leavenworth. That they were not de jwre said board, and that there was another set of men who were de jwre said board, is conceded by both parties; but it is claimed by the plaintiff in error that said McWhirt and his associates were de facto said board.
On the 16th of March, 1869, the plaintiff presented to said McWhirt and his associates an account against said county for professional services as an attorney-at-law, and said McWhirt and his associates allowed it. The plaintiff then sued the county upon this allowance and not unon the original account. The counsel for the defendants not only claims that McWhirt and his associates were not the board of county commissioners either de jure or de facto, but he also claims that said account was illegal and void; that it was for services performed for said McWhirt and his associates as individuals, and not for the county of Leavenworth, nor for said McWhirt and his associates as officers; and that even if performed for the county, or for said McWhirt and his associates as officers, still the services were such as could be performed by the county attorney only, and therefore in any case the allowance itself was illegal and void, as the said plaintiff was not the county attorney. Eut as the plaintiff has not stated the nature of his said services in his petition below, and as none of the .evidence introduced on the trial has been brought to this court, and as the findings of the court below do not sufficiently show the character of his said services, we cannot determine this question with any degree of certainty and shall therefore not consider it.
Were said McWhirt and his associates de facto the board of county commissioners of the county of Leavenworth? The court below' finds that “ they were neither the county commissioners de jure nor de facto, but w.ere usurpers, and had no authority to audit and allow the plaintiff’s account;” and this finding we think is in harmony with the other findings. A de facto officer must be in fact the officer. He must be in the actual possession of the office, and have the same under his actual control. De facto means, in law, as well as elsewhere, “of fact; from, arising out of, or founded in fact; in fact, in deed; in point of fact; actually; really.” Burrell’s Law Diet. If the officer dejwre is in possession of the office; if the officer de jure is also the officer de facto, then no other person can be an officer defacto for that office. Two persons cannot be officers de facto for the same office at the same time: Boardman v. Holliday, 10 Paige, 223, 232; Morgan v. Quackenbush, 22 Barb., 72, 80. And where an office has been created to be held by one person only, two or more persons cannot hold the same as tenants in common. In the present case the regular and de jure board of county commissioners were elected in November, 1867. They would, under the law, hold their offices until the second Monday of January, 1870: Art. 11, § 3, Const.; Comp. Laws, 500, § 40; Gen. Stat., 418, § 58; Leavenworth Co. v. The State ex rel. Latta, 5 Kas., 688. They had been in the actual possession, and had the exclusive control of their respective offices for more than a year before McWhirt and his associates claimed to be county commissioners. There is nothing iu the record of this case that shows that any one of the offices had become vacant, nothing that shows that any one of such officers had died, resigned, removed from his district, or from the county, or had been removed from his office. There is nothing that shows that such officers or any one of them were ever ousted from office, or that they ever in any manner abandoned tbe same; but they continued to be defacto as well as de ¡u/re county commissioners down to the time of the trial of this case; hence there was no room for MeWhirt and his associates to become de facto county commissioners. Such offices were already filled by officers de facto and de ¡v/re.
Whether MeWhirt and his associates had any color of right to said offices we do not choose to consider. The election under which they claimed was void, as there was no vacancy in the office of county commissioners at the time they were elected. (Leavenworth Co. v. Latta, 5 Kas., 688.) No canvass was ever made of said election except by themselves. The record does not show that they were ever recognized as county commissioners by any one except themselves and the plaintiff. No board or officer or person (except themselves and the plaintiff) ever declared them to be the board of county commissioners. Under these circumstances did they act under color of right? (People ex rel. Kearney v. Carter, 29 Barb., 208.) Neither do we choose to consider whether MeWhirt and his associates could become officers de facto in the place of officers de ¡u/re who were already in possession, unless they got possession of the office without a contest; or if they got it through a contest whether they could become officers defacto in such a case until the contest should be ended or abandoned by the other party. (The State v. Jones, 19 Ind., 356.) This would probably have been one of the main questions in the case if all the facts had been presented to the court.
MeWhirt and his associates never got possession of said offices. If they had been legally elected they should have taken possession of said offices on January 11th, 1869. (Gen. Stat.. 418, § 58.) But they did not attempt to take possession of the same until February 2d, 1869. Then they met without any authority whatever, it not being the time for the board to meet, and being just one day after the regular board had adjourned, and declared themselves to be the board of county commissioners of Leavenworth county; but no other person, board, or officer, except the plaintiff, ever recognized them as such. We are now speaking of what the record in this case shows. Possibly the facts may have been different. It is true, they “ met together in the cleric’s office,” and the clerk “kept a record of their proceedings;” but the clerk never attested such record with his signature, nor with the seal of the county, as he does the record of the proceedings of the legally constituted board of county commissioners. (Gen. Stat., 263, § 43.) It seems the clerk did not choose to recognize them as a board of county commissioners. There is nothing to show that this record which was kept by the clerk was kept in the books of the county. It does not seem from the record in this case that MeWhirt and his associates ever got possession of any of the property of the county, or of any of the records, books, papers, the seal, or of anything else belonging to the county or connected in any manner with the office of county commissioners. The clerk ceased to keep any record of their proceedings eight days before the said allowance of the said plaintiff’s account, and no record of any kind was ever made of such allowance, and no county order was ever issued therefor. Under the circumstances of this case we do not think that MbWhirt and his associates can be considered as county commissioners de facto. The judgment of the court below must therefore be affirmed.
Kingman, O. J., concurring.
Brewer, J., did not sit in the case. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action brought by the plaintiff in the district court to abate a mill dam, and perpetually enjoin defendant from maintaining it. Upon the final hearing judgment was rendered for defendant, and the plaintiff brings the case here on error.
Two grounds for relief are alleged in the petition; first, the flowing by the erection of the dam of land owned by plaintiff; and second, the flowing of a ford, across the Neosho River, so as to make it impassable, upon which ford and across which river was a public highway duly and legally established, and plaintiff’s only means of ingress and egress to his lands. To the second of these grounds only, the first being unquestionably good, need our attention be directed; and on its sufficiency hinges the materiality of the testimony rejected. It is claimed “ that the injimes and inconveniences complained 01 by plamtiii are such only as are suffered by him in common with every citizen in the community through which the road inns,” and that therefore, the injuries being to the public, the public only can maintain an action to restrain them. That the injury complained of is a public nuisance, an obstruction of the public highway, is obvious. That where only that fact appears, no private person can maintain an action to abate the nuisance, is -equally clear. Where a nuisance or a wrong is public, the public must move to abate, prevent, or punish. When private, the person injured may proceed. Often, however, an injury is both public and private. Then relief may be afforded at the instance of either the injured public, or the injured individual. A larceny is committed. The public is wronged by the infraction of its laws, and the disturbance of its security, and it may prosecute for the crime. The individual is injured by tbe loss of bis goods, and be may .sue to recover tliem or tlieir value. Both actions may proceed at the same time. So is it with a nuisance. It may be a wrong to the community in general, and a particular injury to an individual. This particular injury to an individual enables him to maintain an action. Thus in Hughes v. Heiser, 1 Binney, 463, it was decided that where one dams a river that is a public highway, and the plaintiff coming down with rafts is prevented by the dam from descending the river, the interruption is actionable, for it is a consequential injury to his interest and rights of property. In the note to Ashby v. White, 1 Smith’s Leading Cases, 364, it is said, “ There are cases in which the act done is a grievance to the entire community, no one of whom is injured by it more than another in the Imicl of injury, though one may be much more injured than another in degree. In such a case the mode of punishing the wrong-doer is by indictment and by indictment only. Still, if any person have sustained a particular injury therefrom, beyond that of his fellow citizens (and differing in kind,) he may maintain an action in respect of that particular damnification. Thus, to use the familiar instance put by the text-writers, if A dig a trench across the highway, this is the subject of an indictment; but if B fall into it, then the. particular damage sustained by him will support an action.” Apply these principles to the allegations in the petition. It is alleged that the erection of the dam' making the ford impassable obstructs the highway. So far. it shows simply a wrong to the. public, for which it alone can maintain an action. But the 'petition goes further and alleges that this highway is plaintiff’s “only means of ingress and egress ” to his land. Obstructing such highway, therefore, prevents his access to his lands. Here is disclosed a particular injury to plaintiff, one differing not merely in degree, but also in kind, from that suffered by community in general. It is not that he rises this highway more than others, but that the use is of a particular necessity to him, affording him an outlet to his farm. It is to him a use and a benefit differing from those enjoyed bvthe public at large. Obstruct ing the highway destroys that particular use and benefit. lie therefore may maintain his individual action.
In support of his allegation of the existence of a highway duly and legally established across said ford, plaintiff offered the record of the proceedings of the board of county commissioners, which was rejected; and this brings us to a consideration of the second question presented, that is, the rejection of testimony. The record presented showed that in 1867 proceedings were had before the board of county commissioners of Coffey county which resulted in an order locating and opening for travel a j>ublic highway across said ford. To the validity of these proceedings several objections are made. The law in force at the time was Ch. 112 of the laws of 1864, entitled “An act in relation to Roads.” The objections urged by counsel for defendant in error are, that the record fails to show, first, the giving of the notice required by § 4; second, the view and swrvey required by § 5, and third, the report, plat and swrvey required by § 6 of the statute just named. Other supposed objections to this record are discussed by counsel for plaintiff ■ in error in their brief, but as they are not noticed by counsel for defendant in error we shall consider them as abandoned, and not stop to examine them. Let us look at the objections in the order they are made. And first, the record is silent as to the notice required by section four. It must be remembered that this is not a controversy between the public and an individual, the former seeking to take from the latter a portion of his land for public use as a new highway. In such case the individual may well insist that every step be shown to have been taken before he is compelled to surrender his property. Especially may he insist upon the proof of those requirements of the statute which are designed mainly for his protection. But in this case the controversy assumes a different phase. The highway is opened. The public are using it. The owners of the land appropriated, have consented to such use. And now an individual obstructs such .highway and prevents its use. True,- he does not attempt to appropriate tlie whole length of the highway. But a highway is very like a chain; one link gone, the rest is comparatively worthless. It is not the case of the public seeking to take private property for public use, but that of an individual seeking to take public property for private use. Eor although the mill-dam act can be sustained only on the ground that a public benefit is sought, yet a highway is public per se, and a mill public only by construction of law. Now if the owners of the land have consented to the appropriation of their land for purposes of a highway, and the public have used such land thus appropriated as a highway, it is with ill grace that a stranger comes in and claims that this, as it were, a quasi contract between the public and the owners of the land, is good in favor of neither. The fact of the existence of a highway may be proved without any record by evidence of acts of the owner equivalent to a dedication of his land to such use, and an acceptance thereof by the public. True, this action is between individuals; but it arises out of an obstruction by the defendant of that which the plaintiff in common with other citizens was using as a highway. And if the public and the owners of the land are satisfied to consider it one, a stranger has little standing in court when he says it is not. Here the public acting through the proper authorities located this highway and ordered it open for public travel. It was opened. The public were using it for travel. The owners of the land were not contesting*, and by their claiming no damages were consenting to such location and use.
Said §4 (ch. 112, laws of 1864; ch. 89, Gen. Stat., 1868,) requires two notices, one to the land-owners, and one to the viewers and surveyor of the time and place fixed by the county board for the survey. The object of the first is to give the land-owner an opportunity to make his claim for damages; and the other, to secure the meeting of the officers appointed. ^ is ma(ie the duty of the principal petitioner to gj[ye this notice. It is nowhere made his duty to preserve such notice, or file proof of service anywhere. These notices are to be given after the county board has made its order directing the survey. Prior to making this order the statute, in previous sections, provides for filing a petition, advertising notice thereof, and giving of bond. After the talcing of these steps the county board acquire jurisdiction of the matter, and the right to proceed. How far a failure to comply with every subsequent requirement of the statute would affect the right of the board to compel the opening of the road it is immaterial to this case to determine, and we express no opinion thereon. If the land-owners have received no notice as required by section four, unquestionably they have a good claim against the county for damages. Perhaps also they might under some circumstances contest the location and opening of the road. But if they are satisfied, no one is authorized to claim or contest for them. More than that, it will be seen that the notice is only to be given to the landowners, or their guardians, Tesidwicj m the cov/nty. For aught that appears in the case, all the land-owners were non-residents of the county, unless it be Job Throckmorton, and he was principal petitioner and the one to give notice. The order of the county board fixed the time for the meeting of the viewers and surveyor. Notice to them of such time would be to secure there attendance. But if they attended without such notice, a failure to give it would hardly vitiate the proceedings. The report shows that two of the viewers and the surveyor attended. It nowhere appears that the third was ever notified or attended. If as a matter* of fact he actually had no notice it would in many cases become a serious if not a fatal defect; but as we before remarked the law nowhere requires proof of service of notice to be filed, recorded or preserved; and we cannot insist that more be done than the law requires. The jurisdiction of the county board to proceed having once been shown, we must presume in favor of the regularity of the subsequent proceedings in matters where no record is required. The second objection we think not well taken. The report says that the viewers with the county surveyor did “ proceed to view the route named in said petition, and have caused the route located by us to be noted by suit able marks.” This shows sufficiently the making of the view and survey required by section five.
The third and last objection is also not well taken. The fact of the survey is shown by the report. The plat of the road and the field notes of the survey signed by the county surveyor are attached to the report. But it is claimed the report is void upon three grounds: “lst.-That it is signed by only two of the viewers. 2d.-That no notice, as required by section four of the road act, was ever given, gq -That no reasons are given by the viewers in their report why such road should be established.” The second of these grounds we have already considered. The first is settled by the statute: “ words giving a joint authority to three or more public officers or other persons shall be construed as giving such authority to a majority of them, unless it be otherwise expressed in the act giving the authority.” Comp. Laws, ch. 188, § 1, 4th clause; (Jen. Stat., ch. 104, § 1; Norton v. Graham, 7 Kas., 166. In regard to the third, the viewers in their report say the route is practicable, and recommend its adoption. This is a sufficient statement. No elaborate presentation of reasons pro and oon is required.
We think the learned judge erred in rejecting the record. This would compel a reversal of the case, for even if the mill-dam act be constitutional, and the proceedings under it regular, the right thus acquired of flowing certain lands would hot can7 w^b it the right to obstruct a highway. The party obtaining the right of flowage takes nothing by implication. He is held to the letter of the bond. Nor is there any provision in the mill-dam act-by which he can acquire the right to obstruct a highway. The purely public use of a highway is paramount to the quasi public purpose of a mill. Where the building of a dam overflows and obstructs a highway, the right to proceed with the dam can only be secured by proceedings vacating the highway, or by taking such steps, either raising the roadway or building a bridge, as may be necessary to secure the free and unobstructed use of the highway.
The remaining question is as to the constitutionality of the mill-dam act, and. the regularity of the proceedings had by defendant in error under it. This act may be found The first sec-M the General Statutes, page 576. tion, which contains the substance of the act reads as follows:
“ Sect. 1. "When any person may be desirous of erecting and maintaining a mill dam upon Ms own land, across any water course, and shall deem it necessary to raise the water by means of such dam, or occupy grounds for mill-yard, so as to damage, by overflowing or otherwise, real estate not owned by him, nor damaged by consent, he may obtain the right to erect and maintain said dam by proceeding as in this act provided.”
The remaining sections prescribe the steps to be taken. They provide for the appointment of commissioners, the assessment and payment of damages, and for appeals from the award of the commissioners. This act practically takes from one individual the use of his property and gives it to another. It is defended on the ground that thereby a power of great value is utilized, which otherwise would be wholly lost, and because the use by the latter is of far greater public benefit than that of the former. The flowing of water furnishes one of the strongest, most manageable, and most serviceable of natural forces, and has been resorted to in all ages of the world as one of the greatest helps to human industry. But flowing through the ordinary channel of a stream, it is comparatively an idle, valueless, wasted power. OMy when its flow is checked, regulated, controlled, does this power become a helpful servant of man. This is accomplished ordinarily by the erection of a dam. But the building cf the dam frequently results in the (overflowing of land situated above the dam. The use of the land thus overflowed is sacrificed to the acquisition of the iwater-power. And when the land overflowed belongs to a party other than the builder of the dam, the former loses the use of his land that the latter may obtain the use of the water power. Of the benefits resulting from thus utilizing this power it is needless to speak. In some communities it has been and still is an incalculable blessing. Judge McCurdy, in Olmstead v. Camp, 33 Conn., 551, says: “It would be difficult to conceive a greater public benefit than garnering up the waste waters of innumerable streams and rivers and ponds and lakes, and compelling them with a gigantic energy to turn machinery, and drive mills, and thereby build up cities and villages, and extend the business, the wealth, the population, and the prosperity of the State.” Here with us in Kansas, owing to the physical conformation of the State and the general use of steam as a motive power the comparative value of water power, secured by mill-dams, will probably always be slight. Yet in each particular instance the same reasoning which sustains the Mill-Dam Acts of Massachusetts and Connecticut will sustain that of Kansas. The benefits resulting to the community at large from thus utilizing an otherwise wasted power are so great that it is deemed fair to consider the securing of it a public purpose. Angelí in his Treatise on Watercourses, § 487 says: “ It seems however to be abundantly well settled that it is sufficiently for the public good; for the statutory law, of which we have given an account, has been too long engrafted in the jurisprudence of the states in which it has been enacted, revised and amended through a long course of legislation, and too steadily sustained by judicial sanction, to be now declared not to be within the eminent domain of the government. More especially should this long and uninterrupted public acquiescence be deemed conclusive, when it is considered that the line of demarcation between a use that is public and one that is strictly and entirely private, is a line not easy to be drawn.” Pursuing the line of argument adopted by this court in the case of the Board of County Com'rs of Leavenworth Co. v. Miller, (the railway bond case, 7 Kas., 479,) we arrive at the same result. Eor at the time of the adoption of the constitution acts similar to this had been sanctioned by the legislatures, executives, and courts of many of the states, and almost universally upheld. And if the people had not intended that the legislature of this State should exercise a like power they would have imposed a clear limitation. Without pursuing the discussion any further, we hold the Mill-Dam Act one within the scope of the legislative power granted by the constitution to the legislature, and not in conflict with the terms of that instrument. It is perhaps no more than right to say that, regarding this question simply in the light of principle, one member of the court at least, dissents entirely from the reasoning which would uphold the validity of this act.
In regard to the regularity of the last proceedings had by defendant under said act, it is sufficient to say that we consider them regular and conforming to the statute.
For the reasons heretofore given, the judgment of the court below will be reversed, and the case remanded for further proceedings.
All the Justices concurring.
[* This section was amended by ch. 47, Laws of 1869, p.132; hut the amendment does not affect the question here decided. — Reporter.] | [
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The opinion of the court was delivered by
Biles, J.:
Brian A. Gilbert was the passenger in a parked car he did not own. Law enforcement officers saw him in the vehicle and confirmed there was an outstanding warrant for his arrest. He was taken into custody, and the car was searched incident to his arrest. Inside the car, drugs and drug paraphernalia were discovered. The State concedes the search was unconstitutional. The dispositive issue is whether a passenger who does not own or have a possessoiy interest in the vehicle may challenge the vehicle’s search incident to the passenger’s arrest.
The Court of Appeals held Gilbert had standing to contest the search under Brendlin v. California, 551 U.S. 249, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007) (traffic stop is a seizure of a passenger as well as the driver). State v. Gilbert, No. 100,150, 2009 WL 2902575, at s5 (Kan. App. 2009) (unpublished opinion). It reversed Gilbert’s convictions and ordered suppression of the evidence seized in the vehicle search. The State petitioned this court for review. We find Gilbert lacks standing to challenge the vehicle search. We hold the outcome is controlled by Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978) (person aggrieved by an illegal search and seizure only through introduction of evidence obtained by search of third-person’s premises has not had his or her Fourth Amendment rights infringed). We reverse the Court of Appeals’ decision and dismiss Gilbert’s appeal.
Factual and Procedural Background
On July 17, 2006, Gilbert was in the passenger seat of a parked car when a Topeka police officer approached and asked for Gilbert’s identification. The officer recognized the person sitting in the driver’s seat, Kate Land, because the officer had met Land and her parents a week earlier when they reported some jewelry stolen. During that meeting, Land’s parents described Gilbert and told the officer they suspected Gilbert was the thief. As part of that investigation, the officer learned Gilbert had an outstanding warrant for his arrest on an unrelated matter. The warrant alleged Gilbert had failed to appear in court for a tail lamp violation; driven while his license was suspended, cancelled, or revoked; driven under the influence of alcohol or drugs; and refused to take a preliminary breath test.
The officer asked Gilbert whether he had taken care of the arrest warrant, and Gilbert said he did not know about it. While awaiting verification that the warrant was outstanding, the officer observed a Crown Royal bag on the floor beside Gilbert’s feet, which the officer testified was “infamous” for being used to conceal drugs. Once the warrant was confirmed, the officer arrested Gilbert and secured him in the back of a patrol car. The officer then returned to search the car, which was registered to Land and Jane Tillman. He discovered drug paraphernalia in the Crown Royal bag, and several baggies containing crystal methamphetamine under the front passenger seat. Gilbert was charged with one count of possession of methamphetamine under K.S.A. 2006 Supp. 65-4160(a) and one count of possession of drug paraphernalia under K.S.A. 2006 Supp. 65-4152(a)(2). Gilbert denied ownership of the seized items.
Before trial, Gilbert filed a motion to suppress the evidence obtained during the search. He argued suppression was required on two grounds. First, Gilbert claimed he was illegally seized because the officer testified at the preliminary hearing that the warrant was unconfirmed when the officer first ran the warrant check while investigating the stolen jeweliy. As such, Gilbert contended, the officer lacked grounds to request identification or run the warrant check a second time while standing beside Land’s vehicle. The district court found the evidence did not support these claims and that the officer had probable cause to believe the warrant was outstanding when he questioned Gilbert. That ruling was not appealed.
Second, Gilbert argued the officer was not authorized to search the vehicle after the arrest because the officer was not searching specifically for evidence of the traffic offenses for which Gilbert was arrested, i.e., the crimes that resulted in the warrant. This argument was based on a previous version of K.S.A. 22-2501, the statute authorizing warrantless searches incident to arrest, which restricted such searches to “evidence of the crime.” (Emphasis added.) K.S.A. 22-2501(c) (Furse). But an amendment to K.S.A. 22-2501(c) became effective a few weeks before the Gilbert search that more broadly authorized officers to search for “evidence of a crime.” (Emphasis added.) L. 2006, ch. 211, sec. 8. The district court denied Gilbert’s motion to suppress because the amended statute was in effect at the time of the search and authorized the officer’s action. The evidence was admitted at trial.
A jury convicted Gilbert of possession of methamphetamine and possession of drug paraphernalia. Gilbert filed a timely appeal to the Court of Appeals. He initially argued the evidence should have been suppressed because the statutory amendment did not expand an officer’s authority to engage in a warrantless search incident to arrest. He also argued there was insufficient evidence that he possessed the methamphetamine.
But before oral argument was heard on those claims, this court held that the amended version of K.S.A. 22-2501 was unconstitu tional. See State v. Henning, 289 Kan. 136, 137, 209 P.3d 711 (2009) (following Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 [2009]). The Court of Appeals then ordered supplemental briefing on whether Henning applied retroactively to Gilbert’s case. In response, the State conceded the search was unconstitutional based on the later court rulings but asserted for the first time that Gilbert lacked standing to challenge the search. The standing argument was premised on the fact that Gilbert was only a passenger in the parked car and did not have an ownership or possessory interest in the vehicle. For his part, Gilbert argued only that the search was unconstitutional under Henning; he did not respond in writing to the State’s standing argument.
The Court of Appeals held Gilbert had standing to contest the search under Brendlin and declared the vehicle search unconstitutional under Henning. It then reversed Gilbert’s convictions. Gilbert, 2009 WL 2902575, at *5. Notably, the Court of Appeals did not address the State’s additional argument that suppression of the evidence was not required even if the search was found later to be unconstitutional because there was a good-faith exception to the exclusionary rule. This is an argument our court recently accepted in a later case. See State v. Daniel, 291 Kan. 490, 500, 242 P.3d 1186 (2010) (good-faith exception applies to searches conducted in reasonable reliance on K.S.A. 22-2501[c]).
The State petitioned this court for review, which we granted. Jurisdiction is proper under K.S.A. 20-3018(b) (review of Court of Appeals decision).
Analysis
The first issue presented is whether Gilbert has standing to challenge the vehicle’s search. This requires us to resolve Gilbert’s preliminary claim that the State did not preserve this issue because it was raised for the first time in response to the Court of Appeals’ request for supplemental briefing after our Henning decision. We hold that Gilbert’s argument misses the mark. Standing is a component of subject matter jurisdiction, which may be raised for the first time on appeal. State v. Ernesti, 291 Kan. 54, 60, 239 P.3d 40 (2010). Whether standing exists is a question of law subject to un limited review. Mid-Continent Specialists, Inc. v. Capital Homes, 279 Kan. 178, 185, 106 P.3d 483 (2005).
The State’s argument that Gilbert lacks standing to contest the vehicle’s search because he did not own or have a possessoiy interest in the vehicle is founded squarely on Rakas, 439 U.S. at 148. In that case, the defendants were passengers in a car driven by the vehicle’s owner. The police stopped and searched the vehicle, believing it was involved in an armed robbery. The police discovered a box of rifle shells in the glove compartment and a sawed-off rifle under the front passenger seat. The defendants later moved to suppress the evidence, contending the search violated the Fourth and Fourteenth Amendments because they were the “victim[s]” of the search or seizure. 439 U.S. at 132. The United States Supreme Court rejected the defendants’ “target theory” for standing because Fourth Amendment rights are personal rights. 439 U.S. at 133-34. The Court stated: “A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed.” 439 U.S. at 134 (citing Alderman v. United States, 394 U.S. 165, 174, 89 S. Ct. 961, 22 L. Ed. 2d 176 [1969]). The Rakas Court held that the defendants lacked standing to challenge the search because they asserted “neither a property nor possessoiy interest in the automobile, nor an interest in the property seized.” 439 U.S. at 148.
Our court follows the same Fourth Amendment analysis. See State v. Worrell, 233 Kan. 968, 970, 666 P.2d 703 (1983) (Fourth Amendment protection from unreasonable searches is based upon an individual’s privacy right, and a defendant does not have standing to challenge a search if he or she had no expectation of freedom from intrusion.); State v. Sumner, 210 Kan. 802, 804, 504 P.2d 239 (1972) (“The record is barren of any evidence to indicate the [defendant] had a reasonable expectation that his right to be secure from searches intruding on his right of privacy extended to [non-owned] premises, nor is there any evidence to establish he had a possessoiy or proprietaiy interest in the premises. Under the facts and circumstances, we hold the [defendant] had no standing to object to the search of someone else’s house or to seizure of some one else’s property in which he claimed no interest.”); see also State v. Masqua, 210 Kan. 419, Syl. ¶ 1, 502 P.2d 728 (1972), cert. denied 411 U.S. 951 (1973) (“Defendant who has no interest in premises, either of a proprietary or possessory character, has no standing to invoke the constitutional guaranty of immunity from unreasonable search and seizure”); State v. Grimmett & Smith, 208 Kan. 324, Syl. ¶ 1, 491 P.2d 549 (1971) (same); Wheeler v. State, 202 Kan. 134, Syl. ¶ 1, 446 P.2d 777 (1968) (same). And this court applies the same test in automobile cases. State v. Epperson, 237 Kan. 707, Syl. ¶ 6, 703 P.2d 761 (1985) (“Ordinarily, a passenger, one who is neither an owner nor in possession of an automobile, has no standing to challenge a search of the automobile.”); State v. Roberts, 210 Kan. 786, 789, 504 P.2d 242 (1972), cert. denied 414 U.S. 832 (1973) (holding defendant lacked standing to challenge car search because he was passenger and claimed no ownership interest in the car).-
Gilbert does not argue he had a reasonable expectation of privacy in the car or its contents or dispute that courts have previously required that showing to establish standing. He also does not claim the seizure of his person on the outstanding arrest warrant was unlawful. He simply argues the rules governing passenger standing changed in 2007 when the United States Supreme Court decided Brendlin. The Court of Appeals panel accepted this argument, stating: “[T]he United States Supreme Court called into question the continuing validity of this long-standing rule in Brendlin.” Gilbert, 2009 WL 2902575, at *5.
We believe the panel misreads Brendlin. In that case, the defendant, was the passenger in an unconstitutionally seized vehicle that was later searched incident to the defendant’s arrest. A syringe cap was found on the defendant’s person, and tubing and a scale used to produce methamphetamine were discovered in the car. The defendant moved to suppress the evidence, arguing the evidence was the fruit of an unconstitutional seizure. He did not assert that his Fourth Amendment rights were violated by the vehicle search. Instead, he argued the officers lacked probable cause or reasonable suspicion to make the initial traffic stop, so the evidence was tainted from the outset. The State of California conceded the police officers lacked reasonable suspicion to justify the initial stop. The United States Supreme Court carefully defined the issue as “whether a traffic stop subjects a passenger, as well as the driver, to Fourth Amendment seizure,” 551 U.S. at 254, and specifically distinguished that issue from a defendant’s claim that his or her Fourth Amendment rights were violated by the vehicle’s interior search, citing Rakas. 551 U.S. at 253 (“Brendlin . . . argue[d] that the officers lacked probable cause or reasonable suspicion to make the traffic stop. He did not assert that his Fourth Amendment rights were violated by the search of [the] vehicle, cf. Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978), but claimed only that the traffic stop was an unlawful seizure of his person.”).
The Brendlin Court thus held that a person is seized and entitled to challenge that seizure under the Fourth Amendment when the officer terminates or restrains his or her freedom of movement by physical force or a show of authority. 551 U.S. at 255. The test used to determine if a person is seized is whether a reasonable person would have believed himself or herself free to terminate the encounter. 551 U.S. at 256-57. The Court then further held a passenger is also seized during a traffic stop of the vehicle he or she occupies, explaining:
“ ‘A traffic stop necessarily curtails the travel a passenger has chosen just as much as it halts the driver, diverting both from the stream of traffic to the side of the road, and the police activity that normally amounts to intrusion on ‘privacy and personal security’ does not normally (and did not here) distinguish between passenger and driver.’ ” 551 U.S. at 257.
With this understanding, the Brendlin Court said it was error for the state court to deny Brendlin’s suppression motion on the ground that his seizure occurred only at his formal arrest. The case was then returned to state court to consider whether suppression of the evidence would turn on any other issue. 551 U.S. at 263.
This demonstrates Brendlin s holding is limited to whether a passenger may contest a vehicle’s stop in the same manner as the driver, and Gilbert’s argument that Brendlin should be extended to give passengers with a nonpossessoiy interest in the vehicle standing to contest a subsequent search of a vehicle’s interior is without merit. The Court of Appeals’ failure to grasp the distinction between Gilbert’s case and die limited holding in Brendlin was error.
We note that several other courts considering the same argument advanced by Gilbert have refused to recognize the extension he advocates. See, e.g., United States v. Cortez-Galaviz, 495 F.3d 1203, 1206 n.3 (10th Cir. 2007) (holding passenger seized for Fourth Amendment purposes has standing to challenge validity of traffic stop, but passenger’s right to contest search of vehicle is another question); United States v. Villaverde-Leyva, 2010 WL 5579825, at *14 (N.D. Ga. 2010) (unpublished opinion) (Brendlin addressed passenger standing to challenge traffic stop, not the vehicle’s search); United States v. Collins, 2010 WL 2264920, at *3 (E.D. Wis. 2010) (unpublished opinion) (Brendlin did not hold a passenger’s ability to challenge the constitutionality of a traffic stop extends to the subsequent vehicle search if the passenger does not claim a possessory or property interest in vehicle); People v. Bowles, 226 P.3d 1125, 1129, n.2 (Colo. App. 2009) (Brendlin leaves intact rule that passenger without possessory interest in vehicle lacks standing to challenge vehicle’s search); Atkins v. Com., 57 Va. App. 2, 12, 698 S.E. 2d 249 (2010) (Brendlin addresses a defendant passenger’s right to challenge the traffic stop, not the right to contest a search).
Under Brendlin, a passenger’s personal Fourth Amendment rights are implicated when the vehicle he or she is occupying is stopped, and this enables the passenger to challenge the constitutionality of that stop. In contrast, a defendant’s Fourth Amendment rights are not implicated during the search of an automobile he or she neither owns nor claims a possessory interest in, even if the evidence obtained during the search is used against the defendant later. In this case, Gilbert does not claim any ownership or possessory interest in the vehicle or the contents that were searched. In addition, he does not claim any interest in the property that was seized from that vehicle. His contention that simply being a passenger affords him an expectation of privacy was rejected in Rakas and a long line of decisions by this court. The holding in Rakas was neither overturned nor limited by Brendlin. Accordingly, Gilbert lacks standing to challenge the constitutionality of the vehicle search in this case.
We reverse the Court of Appeals’ decision and dismiss Gilbert’s appeal for lack of jurisdiction.
Carl B Anderson, Jr., District Judge, assigned. | [
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The opinion of the court was delivered by
Yaientine, J.:
This was an action to compel the specific performance of two certain contracts, and also for various other kinds of relief not necessary now to mention. One of said contracts was made between the plaintiffs, Clough & Wheat, and the City of Leavenworth, and the other contract was made between the plaintiffs and the Cov/wty of Leavenworth. The plaintiffs make the City of Leavenworth, the County of Leavenworth, the Missouri River Railroad Company, the Leavenworth, Atchison, and Northwestern Railroad Company, and the thirty-six individual persons named in the title of the case, parties defendant; and while the plaintiffs ask relief against all the defendants, yet their whole case depends upon the specific enforcement of the said contracts.
The first and principal question for us to consider is whether these contracts were valid or not. The defendants raised the question: of their validity in the court below by demurring to the plaintiffs’ petition. The court below sustained the demurrer. The plaintiffs alleged in their petition that “ On the 16th of November, 1868, the county of Leavenworth aforesaid, of the one part, at and with the consent of the county attorney of said county, made and entered into a certain written contract of that date, with these plaintiffs, partners as aforesaid, of the other part, of which written contract the following is a copy, to wit:
“ This article of agreement, made and entered into this 16th of November, 1868, by and between Clough & "Wheat of the one part, and the county of Leavenworth of the other part, witnesseth: That whereas the county of Leavenworth has $250,000 of the capital stock of the Missouri Eiver Eailroad Comnany, and as such stockholder claims certain rights against" said Eailroad Company, and those persons who claim'to manage the same; also, against those persons who claim to have purchased that tract of land lately lmown as the £ Diminished Delaware Eeserve,’ under a treaty with the Delaware Indians, and the said county is desirous of employing said Clough & "Wheat as attorneys to render such assistance in enforcing such claims as they properly and reasonably can: Now, for that purpose, the county of Leavenworth, in the State of Kansas, hereby undertakes and promises to and with said Clough & "Wheat to pay them the sum of $2,500 — $1,250 thereof now^ — $625 thereof one year from this date, and $625 thereof two years from this date. If the litigation ends at any time within such two years then immediately all of said $2,500 then unpaid shall be due and paid immediately. And for the same consideration said county hereby undertakes and promises to and with said Clough & Wheat to pay them for such services the value of three per cent, of all the said county has or may obtain as such stockholder as aforesaid, and to assign and transfer three per cent, in amount of all the stock it has in said Company to said Clough & Wheat, when thereto requested. And the said Clough & Wheat on their part undertake and promise to and with said county to perform such services as those above mentioned for the consideration aforesaid. It is understood and agreed by and between the parties hereto, that the county of Leavenworth will pay one-half of all traveling expenses, including fare, and all hotel and printing bills, by said.Clough & Wheat necessarily ■or properly incurred or paid, in, about, or in consequence of attending to any of the matters aforesaid, or any suits or proceedings in relation thereto.
“ In testimony whereof the parties aforesaid have hereunto subscribed their names, the said Clough & Wheat in their own proper persons, and the county of Leavenworth by its agent, attested by the clerk of said county, and the seal thereof.” (Signed and attested in duplicate.)
“ And that the said county then had and owned $250,000 paid-up stock in and to the capital stock of the Missouri River Railroad Company. And said plaintiffs further aver that they have duly performed all the conditions of said contract on their part; and that on the 7th of December, 1868, these plaintiffs requested the county of Leavenworth aforesaid to assign and transfer three per cent, of the stock by it owned and mentioned in said contract to these plaintiffs, but said county then neglected and refused so to do. And plaintiffs further aver that the several defendants herein knew and had notice of the making of the contract aforesaid, at the times when the same were respectively made, and from thence hitherto.”
The allegations of the petition with respect to the contract made with the City of Leavenworth are almost exactly the same as those with regard to the contract made with the County, and hence it is not necessary for us to repeat them. The two contracts are in form identical. That, however, made with the city is dated October 20th, 1868. These contracts in our opinion are void; or rather they appear upon their face to be void, and there is no allegation in the petition that shows them to be otherwise than void. The county and city of Leavenworth attempt by these contracts to employ the plaintiffs to perform precisely what it is the duty, under the law, of the county and city attorneys respectively to perform. They completely ignore the law. We have examined all the authorn ties referred to by counsel for both plaintiffs and defendants, to-wit: 9 Bosw., 433, 434; 10 Bosw., 544, 545; 2 Sandf., S. C., 460; 23 Barb., 370; 33 Barb., 603; 59 E. C. L., 534; 12 Wis., 509, 512; 17 Iowa, 413; 11 Ohio St., 190. And we have also exam ined the following other authorities not referred to by counsel, to wit: Smith v. Mayor of Sacramento, 13 Cal., 531; Hornblower v. Duden, 35 Cal., 664; Parker v. Williamsburg, 13 How. Pr., 250; Carroll v. St. Louis, 12 Mo., 444. Scarcely one of these authorities is applicable under our statutes, and to the particular case at bar. While the language of some of the decisions would seem to cover this case, yet the precise question involved in this case was not before the courts rendering such decisions. The cases of Carroll v. St. Louis, 12 Mo., 444, and Orton v. The State, 12 Wis., 509, are as near applicable as any of them.
Before proceeding further we would say that it will be admitted that a county is a corporation, or at least a,quasi corporation, and as such can in any case employ counsel if no counsel had otherwise been provided for them by law. It will even be admitted for the purposes of this argument that in states where no county attorney is elected, but where a district attorney is elected for several counties whose principal duty is to attend to state cases (to prosecute criminal actions,) in his district, but whose duty it also is secondarily to appear and prosecute or defend for the several counties within his district, such counties are not bound to depend upon such district attorney but may employ counsel of their own to take more especial care of the interests of the county. It will also be admitted that in any case other counsel than the county attorney may appear and prosecute or defend for a county under or for the county attorney, or to assist him, looking of course to the county attorney if to any one, for compensation. It will also be admitted that a county may employ other counsel to perform such of its legal business as the law does not authorize or require the county attorney to perform; and that there may be such business, will not be denied. And it will also be admitted that a county may with the consent of the county attorney employ such assistance for the county attorney as the county attorney may actually need. It is possible that there may be other cases where a county may employ other counsel than the county attorney, but we now cannot conceive of any other.
. The county attorney is elected by the people of the county and for the county: Gen. Stat., 283, §135. He is the counsel for the county, and cannot be superseded or ignored by the county commissioners. His retainer and employment is from higher authority than the county commissioners. The employment of a general attorney for the county is not by the law put into the hands of the county commissioners, but is put into the hands of the people themselves. The county attorney derives his authority from as high a source as the county commissioners do theirs, and it would be about as reasonable to say that the county attorney could employ another board of Commissioners to transact the ordinary business of the county as it is to say that the county commissioners can employ another attorney to transact the ordinary legal business of the county. Both would be absurd. It is the duty of the county attorney to give legal advice to the county commissioners, and not theirs to furnish legal advice to or for him. Some of the provisions of the statutes (Gen. Stat., 284 to 285,) relating to the county attorney are as follows:
Seo. 136. It shall be the duty of the county attorney to appear in the several courts of their respective counties and pi’osecute or defend, on. behalf of the people, all suits, applications, or motions, civil or criminal, arising under the laws of this state, in which the state or their county is a party or interested.
“ Sec. 137. Each county attorney shall * * * also prosecute all civil suits before such magistrate ” (any magistrate of his county) “ in which the county is a party or interested.
“ Sec. 138. The county attorney shall without fee or reward give opinions and advice to the board of county commissioners, and other civil officers of their respective counties, when requested by such board or officers, upon all matters in which the county is interested, or relating to the duties of such board of officers, in which the state or county may have an interest.
“ Sec. 139. The county attorney of the several counties of this state shall be allowed by the board of county commissioners, as compensation for their services, a salary as follows: * * * In counties of over twenty-four thousand inhabitants not more than three thousand dollars. * * * * County attorneys shall be allowed ten per cent, on all moneys collected by them in favor of the state or county. * * *
“ Sec. 140. No county attorney shall receive any fee or reward from or on behalf of any prosecutor or other individual, except such as are allowed by law for services in any prosecution or business to which it shall be his official duty to attend, nor be concerned as attorney or counsel for either party, other than the state or county, in any civil action depending upon the same state of facts upon which any criminal prosecution commenced but undetermined shall depend. * * *
“Sec. 141. The county attorney may appoint a deputy who shall perform all the duties of such county attorney during his absence or sickness.
“ Sec. 142. In the absence, sickness, or disability of both the county attorney and his deputy, any court before whom it is his duty to appear may appoint an attorney to act as county attorney by order to be entered upon the minutes of' the court.”
What we have said with reference to county attorneys will also apply to city attorneys. The statutes relating to city attorneys will be found in the General Statutes p. 131, § 11, p. 145, § 71, p. 152, §110, clause 7th. The city attorney of Leavenworth City receives by law the sum of $1,800 per annum for his services for the city; and while the city council have no power at all to supersede him as they have attempted to do in this case, they cannot even make an additional allowance for assistant counsel unless concurred in by three-fourths of the members elected to the council: Gen. Stat., 152, §110, clause 7th. '
From the foregoing we think it necessarily follows, that where a written contract between a county and an individual shows upon its face that it was made by the county for the professional services of the individual as an attorney and counselor-at-law, which services are such as the law requires to be performed by the county attorney such contract isfrvma fade void. That where a written contract between a city of the first class and an individual shows upon its face that it was made by the city for the professional services of the individual as an attorney and counselor-at-law which services are such as the law requires to be performed by tbe city attorney, such contract is prmia facie void: And where the petition of the plaintiff sets forth such a contract as mentioned above as a foundation for a decree for the specific performance of such contract, but does not set forth any facts which would show that such contract is not void, such petition does not state facts sufficient to constitute a cause of action.
We suppose it will be conceded that as a rule where a contract appears to be void upon its face if there should be any facts outside of the contract which would render the contract valid such facts should be set forth in the pleading of the party claiming the contract to be valid. So in .this case, as the contracts declared upon appear to be void, it will devolve upon the plaintiffs to set forth in their petition such facts, if there be any such, as will render the contracts valid. The judgment of the court below is affirmed.
Kingman, C. J., concurring.
Brewer, J., did not sit in the case.. | [
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The opinion of the court was delivered by
Yalentine, J.:
Hamill and Eroekmire, as partners, brought their action on an account. The defendant Cohen answered, denying generally, etc. Trial was had before a jury. The verdict was for the plaintiffs. Die verdict was set aside and a new trial granted. The plaintiffs then amended their petition, setting up one new fact only, to-wit, that the said account had been assigned to said' Hamill, and asked that judgment be ren dered for TTarnffl alone. The defendant did not answer to this amended petition. Trial was again had — this time before the court alone — the record of which reads as follows:
“This day this cause came on to be tried; the plaintiffs appeared; the defendant failed to appear; and the court having examined the proofs and evidence, and being fully advised in the premises, doth find as follows, to-wit — that due service of summons has been made upon defendant; that defendant has failed to appear, answer or demur to the amended petition herein; that there is due to plaintiff Joseph Hamill from defendant A. Cohen, on the account set forth in plaintiff’s petition, the sum of $578.23. It is therefore considered, ordered, and adjudged, that the plaintiff Joseph Hamill have and recover of and from the defendant A. Cohen the said sum so as aforesaid found due, and the costs of this action to be taxed herein.”
The assignments of error are as follows: “ 1st, The said district court erred in adjudging that this plaintiff (as defendant below) was in default for want of an answer. 2d, The said court erred in rendering judgment against this plaintiff as upon default, there being an answer on file.”
The defendant Cohen was clearly not in default for want of an answer. (See reasoning in case of Stevens v. Thompson, 5 Kas., 307 to 311.) He had answered, denying every fact set forth in the original petition, which was a denial of every fact but one as set forth in the amended petition. But did the court treat the defendant as in default? From the statements of counsel we suppose it did. But those statements are not the record, nor do they constitute any part of the record. And as counsel have not consented that we shall be governed by anything but the record we cannot loot outside of the record. The record shows, as we think, that the case was tried; that proof and evidence was introduced at the trial; that the court was fully advised in the premises, and that the court found that there was due to the plaintiff Hamill the sum for which the judgment was rendered. But even if the- record were silent as to whether the finding by the court of the liability of the defendant Cohen, together with the amount due upon the account, was upon sufficient evidence, still it would hardly be proper for us to presume error, or to presume against tbe regularity of the proceedings, for all presumptions are in favor of the regularity of the proceedings of a court of record, and error is never presumed, but must always be affirmatively shown by the party alleging the same.
No question has been raised in this court as to whether the court below erred in trying the case itself, and in not submitting the same to a jury, and probably no such question could plausably be raised. The defendant, by not appearing at the time the case came on to be heard, waived his right to a jury trial: Civil Code, § 289. As no error is apparent upon the record, the judgment of the court below must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Kingman, C. J.:
Richards was the secretary of the Missouri River Railroad Company from its organization till the road was completed and the cars were running. His services began on the 31st of January, 1865, and ended on the 11th of August, 1866, a period of about eighteen and one-half months. During all this time he was also a director in the company. He brought his suit against plaintiff in error to recover for his services as secretary at $2,500 per annum, and for moneys paid out for the company amounting to $44.15. A trial was had, and a verdict for $1,424.15 was returned, upon which judgment was entered. Yarious exceptions were taken during the trial as to the admission and exclusion of testimony, and as to the instructions given and refused. These will be considered in their order.
Richards as a witness for himself, having testified that he acted as secretary for the time claimed, and having produced the books kept by him during that time for the plaintiff in error, and stated that his services to the company as secretary were worth $2,500 per annum, was asked on cross-examination this question: “What would it have been worth for a clerk to do all the writing done by you in that book? ” Upon objection made, this question was ruled out. It is obvious that an answer to the question would throw no light on the main question on which it touched. The mere clerical labor of writing a score or two of pages would be no criterion of the value of the services rendered in attending the meetings of the board, waiting upon their deliberations, and exercising the skill necessary to reduce the results of their action to proper form, and under the responsibility attaching to an officer having the care of the proceedings of a corporation dealing in such large matters. As well might a lawyer who had testified to the value of his services in preparing a paper on a difficult and delicate point be asked what it would be worth for a clerk to do all the wilting of that paper. By such evidence the jury would be liable to be misled from the true point to be by them determined. The witness had given no testimony as to the value of reducing the proceedings of the board to writing. It was but one of the many duties which he had discharged as .secretary, according to the testimony. In the latitude permitted on cross-examination such questions are frequently allowed; and the -*■ 7 extent to which they are permitted must depend .ox x in a great measure upon the discretion of the court in each particular case. We can perceive no benefit that it would have been to the plaintiff in error to have had an answer to the question, even if the answer had been that it was worth but one dollar for a clerk to do the writing in the book. The keeping the record in the book was but a small item in the duties he had to perform, and the clerical part but a slight part of the value of his services in making the record. Still we think in the latitude allowed in cross-examination the question ought to have been answered, but cannot reverse a case for an error that could have had no influence in determin- • ing the real questions in issue. A similar question was asked Chamberlain and not permitted to be answered, and the same reasons apply to that question.
The next objection is that the witness Chamberlain was allowed to answer this question: “What were the services of the secretary of the defendant worth during the time these services were rendered?” The ground of the objection is, that the witness had not shown himself competent to testify on that snbiect. He had already testified that he knew what labor the plaintiff had performed for the company as secretary; what portion of his time lie was employed therein; that he (witness) was a merchant doing business in Leavenworth, and part of the time was partner of the plaintiff that he knew what salaries were usually paid for such services in the east, but did not know of any similar position in Leavenworth or vicinity. "We think he had shown enough to the court to authorize the question to be answered. “ It was more in the nature of a fact, than of an opinion, although it belongs to that class of facts not capable of demonstrable certainty.3’ Anson v. Dwight, 18 Iowa, 244. In a new and rapidly growing country, new enterprises call for services not before known in the vicinity, and therefore one must go of necessity elsewhere for criteria of their value; and if none such can be found, the testimony of those conversant with similar kinds of services here must be admitted. The witness was. qualified under either reason.
The evidence showed that the by-laws of the company had provided that the officers should receive such compensation for their services as the board of directors should fix and allow, and the board had not fixed or allowed any salary or compensation whatever. It appears, however, that after he ceased to be secretary, the president had refused to pay anything. It further appears that all the time that Richards was secretary, he was also a director. At the proper time the defendant asked a series instructions, most of which were refused. Under vaiq011s forms the instructions refused contained these propositions: l.-That to entitle the plaintiff to recover lie must prove that the board of directors of the Railroad Company fixed a salary for the secretary under the by-laws. 2.-That such salary must be so fixed, or plaintiff, before suit brought, must have demanded of such board'that his salary be fixed by them. 3.-That the plaintiff cannot recover for money paid out until he has shown that it was so paid by the direction of the board of directors. No one of these propositions contained in the instructions refused is the law. The very formation of the bylaw by its terms indicated that some compensation was to be fixed and allowed to the officers. The neglect to do so could not be a bar to the recovery for such services. Had the board made some allowance, however inadequate, it would probably have precluded the secretary from obtaining more than was allowed, at least for such time as he might serve after the salary was so fixed. The plaintiff below rendered certain services for which the plaintiff in error stipulated he should have such compensation as it, through its agents, should fix and allow. It cannot now escape its obligation by refusing to fix any sum. Nor does it devolve on the person rendering the service to demand that plaintiff in error shall perform a duty, which the laws of its own existence require should be done. Much less does it lie in the mouth of the plaintiff in error to say, “You cannot recover what is due you from us till you ask us to perform certain duties, with which you have nothing to do, and over which you have no control.” Nor is the third proposition entitled to any more consideration. As secretary the plaintiff paid out for books, stationery, postage, telegraphing, etc., $44.15, necessary expenses incurred for the company in the performance of his duties as secretary. The company has had the benefit of this expenditure, and in good faith ought to refund it. Nor is there any principle of law that would prevent a recovery of it. A. & A. on Corp., §§ 237, 241, and authorities referred to.
The court instructed the jury that “the plaintiff could not recover for the services rendered under and to the first organization;” and that “if the services rendered for the defendant were performed by the plaintiff with the understanding that no compensation was to be paid therefor, he could not recover.” The court also gave the following instruction:
“ 2d. That it was the duty of the defendant to fix by its directors a reasonable amount to be paid to plaintiff for his services as secretary, and having failed to do so, the plaintiff is entitled to recover therefor such amount as the evidence'shows him entitled to.”
The objection urged to this last instruction is, that the jury are peremptorily directed.to find a verdict for the plaintiff; and this would have much forqe did not the previous instructions modify it. If the services were rendered with an understanding that they were gratuitous, then there could be no recovery. If there is no such understanding, and one renders valuable services for another, the law implies a promise to pay, and the right to recover therefor is a matter of law; and this is what the jury were told. Taking the instructions together, and the jury had first to decide whether the plaintiff was entitled to anything. If there was not an understanding that he was to work for nothing, then he was entitled to recover. If this is not a pure question of law, it would be difficult to conceive of one. The error of the counsel has arisen from considering one instruction alone. If, as the counsel claim, the services-were voluntary, and sought by Eichards for the laudable purpose of serving himself and the community in which he lived, then, by the law as laid down, there could be no recovery; and it was the peculiar province of the jury to determine that question. There was much evidence to support the verdict on this point. The by-law indicates plainly enough that some compensation was to be paid to the officer. The simple fact that the by-law fixed the means of determining how much should be paid shows that something was contemplated. The fact that the president promised to pay showed that Eichards never considered that he was to work for nothing. There was then that general knowledge that the jury are presumed to possess of those motives that actuate the conduct of men where the motives are of such general application as to become almost universal, and that is, a settled indisposition to work for nothing, to make special sacrifices of individual interest to accomplish an object for the general good. We think the jury were fully authorized to come to the conclusion that there was no understanding that the work was to be done for nothing.
A part of the charge to which objection is made is this: “ The jury can take into consideration their own general knowledge in assessing plaintiff’s damages.” The jury are always A a case, as we understand the law, to use the knowledge ail<^ experience they are supposed to possess in common with the generality of mankind in making up a verdict. As we understand it, this instruction goes no farther than this. On questions of damages, the exercise of this power is frequently one of the means of coming to a conclusion. "Where witnesses are supposed to have a peculiar skill and judgment, upon a particular subject their opinions as to the amount of-damages, are sometimes allowed to go to a jury for the purpose of supplying the supposed want of experience and knowledge of the jury. Where such witnesses are not produced, the jury must use their own judgment. We do not know of a single decision against this doctrine. It is not the knowledge that the jury have of this particular case that they are permitted by the court to apply, but that general knowledge they ha7e in common with the rest of mankind. See 1 Greenl. on-Ev., § 364, note, and authorities referred to. Chicago v. Mayor, 18 Ill., 360; State v. Barrow, 37 Vt., 62, where the court held that a jury might take into consideration their general knowledge that ale was an intoxicating liquor; Parker v. Boston, 15 Pickering, 209; Murdock v. Sumner, 22 Pick., 158. “That general knowledge that any man can bring to the subject a juror may use, but if he has any particular knowledge on the trade he must be sworn.” 32 E. C. L., 670. The instruction under consideration goes no further.
A single question remains. It is insisted that a new trial should have been granted because the verdict was excessive. On this point we shall not review the evidence. The verdict seems large for the services shown, but it is abundantly sustained by the evidence, and the jury were authorized to consider the responsibility as well as the skill and labor bestowed by the plaintiff as secretary; and while we think the allowance liberal, we cannot see that it was not authorized, and we therefore cannot say that it was influenced by passion or prejudice, and cannot set it aside. The judgment is affirmed.
Yalentine, J., concurring.
Brewer, J., not sitting. | [
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The opinion of the court was delivered by
Yauentine, J.:
The defendant Frank C. Iiuber was charged with murder in the first degree. He was tried, found guilty, and a warrant was entered upon the journal ordering that he should suffer death by being hanged. He now appeals to this court.
Murder in the first degree is the highest degree of the offense of felonious homicide and includes within itself every other degree of that offense. Upon an information or indictment charging murder in the first degree the defendant may be found guilty of any degree of felonious homicide — of murder in the first degree, or murder in the second degree, or of any one of the four different degrees of manslaughter. Our statute requires that “ upon the trial of any indictment or information for any offense whereby by law there may be conviction of different degrees of such offense,the jury, if they convict the defendant, shall specify in their verdict of what degree of the offense they find the defendant guilty.” (Grim. Code, § 239.) The verdict of the jury in this case was as follows: “We the jury find the defendant guilty in manner and form as he is charged in the information.” The verdict does not specify of what degree of the offense of felonious homicide the jury found the defendant guilty. The court of course erred in receiving such a verdict. It should have required the jury to so amend their verdict as to show of what degree of the offense they found the defendant guilty.
Afterward the defendant moved for a new trial but the court overruled the motion. Here again the court erred. It should have sustained the motion and granted the new trial. The defendant cannot be executed under a sentence founded upon such a defective verdict. This has already been settled in this court in the case of The State v. Reddick, 7 Kas., 143, 154. That decision was founded not only upon the statutes of this state but also upon the almost if not entirely the unbroken current of decisions in this country. For the authorities we refer to that ease. The defendant did not except to the ruling of the court overruling the motion for a new trial; nor did he object to the sufficiency of said verdict in any manner except by his motion for a new trial. This court however decides that notwithstanding the want of said exception or other objection as aforementioned, the defendant is not deprived of his right to appeal to this court and to now raise the question of the sufficiency of said verdict. The case of Cobia v. The State, 16 Ala., 781, is directly in point.
The defendant raises two other questions: First, he claims that the court below did not charge the jury in writing. If this is true, and it seems to be true from the record, 0£ courge the eom.t erred in this respect. (Grim. Code, § 236.) Second, the defendant also claims that no judgment was ever rendered in the case. This seems also to be true. In that part of the record where we would expect to find the judgment, there is a warrant or order to the sheriff; signed by the judge of the court below, reciting that the defendant “had been sentenced by the court to be hanged,” and then ordering the sheriff to hang the defendant. A formal judgment should have been rendered. But whether we consider said order to the sheriff a judgment, or a warrant, or an order, still the same must be reversed.
The cause will be remanded with the order that a new trial be granted, and such further proceedings taken thereon as required by law.
All the Justices concurring. | [
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|
The opinion of the court was delivered by
Johnson, J.:
Following a bench trial, D.M.-T. was adjudicated a juvenile offender for having committed acts at age 13 which would have constituted the crime of rape if he had been an adult. The district court sentenced D.M.-T. to 30 months in a juvenile correctional facility and ordered him to complete sex offender treatment.
D.M.-T. filed a direct appeal, arguing that the evidence was insufficient to support the adjudication and that the trial judge had applied the incorrect standard of proof. The Court of Appeals affirmed the adjudication, and the Supreme Court denied D.M.-T.’s petition for review on May 28, 2008. In re D.M.-T., No. 97,721, 2007 WL 4246887 (Kan. App. 2007) (unpublished opinion). The Court of Appeals mandate was issued May 30, 2008, and filed in the Wyandotte County District Court on June 3, 2008.
On June 20, 2008, this court filed its opinion in In re L.M., 286 Kan. 460, 186 P.3d 164 (2008), holding that juveniles have a constitutional right to a jury trial. The opinion specified that its holding regarding a juvenile’s right to a jury trial “will apply only to cases pending on direct review or not yet final on the date of filing of this opinion.” 286 Kan. at 473-74.
On July 15, 2008, D.M.-T. filed a pleading entitled “Post Trial Motion to Set Aside Judgment and Sentencing.” The six-sentence motion summarily contended that D.M.-T. was “within the time period of the case law decision” in In re L.M. and prayed “that the Court set aside the Bench Trial Conviction and grants the defendant a new Trial by Jury.” Subsequently, another attorney filed “Suggestions in Support” of D.M.-T.’s motion, expanding the argument to assert that D.M.-T.’s direct appeal was not final at the time In re L.M. was decided because the deadline for filing a petition for writ of certiorari with the United States Supreme Court had not expired.
The district court overruled D.M.-T.’s motion, noting that the juvenile had not requested a jury trial, notwithstanding that court’s policy of granting such requests where the alleged acts would constitute a person felony for an adult. Further, the district court found that D.M.-T.’s failure to raise the jury trial issue on direct appeal was fatal to his postappeal motion.
D.M.-T. appealed the district court’s denial of his motion to set aside his judgment and sentence. Ultimately, the Court of Appeals dismissed the appeal for lack of jurisdiction. In re D.M.-T., No. 102,241, 2010 WL 2545666 (Kan. App. 2010) (unpublished opinion). The Court of Appeals reiterated that the right to appeal is entirely statutory and stated that K.S.A. 2010 Supp. 38-2380, which governs appeals in juvenile offender cases, provides no authority to appeal an adverse ruling in a postadjudication motion. In re D.M.-T., 2010 WL 2545666, at *3.
Appellate Jurisdiction
To clarify, the Court of Appeals did not reach the merits of D.M.-T.’s appeal, i.e., whether his case was not final when In re L.M. was filed, so that he was entitled to a retrial before a jury. The Court of Appeals’ action from which D.M.-T. seeks relief is a dismissal based upon the absence of appellate jurisdiction.
Standard of Review
Appellate courts have unlimited review of issues involving the existence of jurisdiction. State v. Denney, 283 Kan. 781, 787, 156 P.3d 1275 (2007). Likewise, to the extent we must engage in statutory interpretation, our review of that question of law is unlimited. Cooper v. Werholtz, 277 Kan. 250, 252, 83 P.3d 1212 (2004).
Analysis
This court has consistently held that a right to appeal is not to be found within the Kansas Constitution or the United States Constitution, but rather an appeal is only a statutory right. State v. Legero, 278 Kan. 109, 111, 91 P.3d 1216 (2004). Accordingly, appellate courts have jurisdiction to review a case only if the appeal is permitted by statute. Wasson v. United Dominion Industries, 266 Kan. 1012, 1018-19, 974 P.2d 578 (1999). Further, an appellate court has the duty to inquire into its jurisdiction and dismiss the appeal if the record indicates an absence of jurisdiction. State v. Gill, 287 Kan. 289, 294, 196 P.3d 369 (2008).
At oral argument, D.M.-T. agreed that his motion to set aside adjudication and sentence was not intended to be in the nature of a writ of habeas corpus. Cf. K.S.A. 60-1501; K.S.A. 60-1507. Rather, the motion was filed under the Revised Kansas Juvenile Justice Code (RKJJC), K.S.A. 2010 Supp. 38-2301 et seq. See K.S.A. 2010 Supp. 38-2328(b) (governing motions under the juvenile justice code). Accordingly, the statutory right to appeal the denial of his motion was governed by the provisions of the RKJJC, specifically, K.S.A. 2010 Supp. 38-2380.
As the Court of Appeals pointed out, 38-2380 plainly authorizes a juvenile to appeal in only two instances: K.S.A. 2010 Supp. 38-2380(a) provides for an appeal of an order authorizing prosecution as an adult; and subsection (b) provides that “[t]he juvenile offender may appeal from an order of adjudication or sentencing, or both.” Here, D.M.-T. was not subject to an order authorizing adult prosecution, and he exercised his statutory right to appeal the order of adjudication and sentencing order in his direct appeal. See In re D.M.-T., 2007 WL 4246887. The order he now attempts to appeal is the denial of his postappeal motion which collaterally attacked the procedure employed to adjudicate him as a juvenile offender. The RKJJC contains no explicit authority for a juvenile to appeal an adverse ruling on such a motion.
D.M.-T. argued to the Court of Appeals that there was no case law delineating what matters a juvenile could appeal under K.S.A. 2010 Supp. 38-2380 and, therefore, the court should broadly construe the statute to permit the appeal of postadjudication motions. The Court of Appeals rejected the notion that the absence of case law on the subject empowers an appellate court to presume that jurisdiction exists. To the contrary, “Kansas appellate courts generally obtain jurisdiction to entertain an appeal only as provided by statute.” In re D.M.-T., 2010 WL 2545666, at *2. The Court of Appeals could not find a right to appeal from an order denying a postadjudication motion in the plain language of K.S.A. 2010 Supp. 38-2380 and dismissed the appeal. In re D.M.-T., 2010 WL 2545666, at °3.
On petition for review, D.M.-T. changes direction, asserting that the Court of Appeals “unconstitutionally limited the scope of juvenile appellate jurisdiction.” In arguing the point, D.M.-T. cites to the standard applied by appellate courts in determining whether to review an issue which has become moot, i.e., whether the issue is of public importance and capable of repetition yet evading judicial review. He also argues that the general rule precluding review of constitutional issues raised for the first time on appeal should not be invoked in his case because consideration of his claim is necessary to serve the ends of justice. See State v. Gaudina, 284 Kan. 354, 372, 160 P.3d 854 (2007). Neither mootness nor issue preservation is the question before us. Moreover, in those circumstances, the appellate court has obtained jurisdiction of the appeal prior to deciding whether it would be prudent to consider the particular issue. We are still at the first step of determining the existence of jurisdiction.
The crux of D.M.-T.’s argument appears to be that he was denied his constitutional right to a jury trial and, therefore, the restriction on his right to appeal is an unconstitutional violation of his right to procedural due process. That argument conflates the issue of appellate jurisdiction with the issue raised on appeal. The determination of appellate jurisdiction is unaffected by the nature or the merits of the claims being advanced in the appeal. Given that a constitutional right to appeal does not exist under any circumstances and that a statutory right to appeal did not exist under D.M.-T.’s circumstances, there could be no procedural due process violation, regardless of the merits of D.M.-T.’s claims.
D.M.-T. also contends that In re L.M. stands for the proposition that juveniles are entitled to the same statutory procedures that are afforded to adult criminal defendants. He does not explain what statutory procedure would have been available under the adult criminal code for a defendant to move to set aside a conviction and sentence in the criminal proceeding or to appeal an adverse ruling on that motion. Ordinarily, that type of postconviction relief is sought through a K.S.A. 60-1507 civil action. Nevertheless, we recently rejected D.M.-T.’s argument. In In re D.E.R., 290 Kan. 306, 225 P.3d 1187 (2010), where we held that juveniles were not entitled to a preliminary hearing, we clarified that In re L.M. was not intended to grant juveniles the same statutory rights as adults and that juvenile procedures are not required to parallel adult criminal procedures. In re D.E.R., 290 Kan. at 311.
In conclusion, we find that the juvenile justice code made no provision for the appeal of the district court’s order denying D.M.T.’s postappeal motion to set aside adjudication and sentence. Therefore, the Court of Appeals lacked appellate jurisdiction to review D.M.-T.’s claims, and the panel was correct in dismissing the appeal.
Affirmed. | [
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|
Per Curiam:
This is a contested original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Marlin E. Johanning, an attorney admitted to the practice of law in Kansas in 1979.
On May 28, 2010, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent filed an answer on July 8, 2010. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on September 1, 2010, where the respondent was personally present and represented by counsel. The hearing panel determined the respondent violated KRPC 1.15 (2010 Kan. Ct. R. Annot. 505) (safekeeping property); 8.4(d) (2010 Kan. Ct. R. An-not. 603) (conduct prejudicial to the administration of justice); and Supreme Court Rule 211(b) (2010 Kan. Ct. R. Annot. 327) (failure to file timely answer in disciplinary proceeding). After the hearing’s conclusion, the hearing panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
“FINDINGS OF FACT
“2. On April 14, 2009, the Atchison County District Court appointed the Respondent to represent Biyan Corkins in a pending criminal case. Mr. Corkins had been charged with theft of guns. The prosecutor alleged that Mr. Corkins took possession of what he knew to be stolen property and attempted to dispose of the property by throwing the guns in a river.
“3. During the course of plea negotiations, the Respondent and Mr. Corkins understood that restitution would be a condition of a plea or of probation. As such, the Respondent instructed Mr. Corkins to make every effort to come up with restitution in order to put himself in the best position to negotiate a plea agreement.
“4. On May 18, 2009, while at the Atchison County Courthouse, Mr. Corkins provided the Respondent with $1,300.00 in cash. Mr. Corkins instructed the Respondent that that payment was to be offered as part of restitution. The Respondent provided a receipt to Mr. Corkins for the cash received for restitution.
“5. The Respondent did not deposit the $1,300.00 in his attorney trust account.” [In a footnote, the hearing panel noted: “To date, the Respondent has not disclosed what happened to Mr. Corkins’ $1,300.00. At the hearing on the Formal Complaint, the Respondent invoked his 5th Amendment privilege against self-incrimination and refused to answer questions regarding what he did with the $1,300.00.”]
“6. While Mr. Corkins’ criminal case remained pending, the Respondent anticipated that Mr. Corkins would add ‘another impressive sum or two in rapid succession’ thus improving the chances at a favorable plea agreement. However, Mr. Corkins did not provide any additional payments to the Respondent for restitution while the case was pending.
“7. On June 15, 2009, Mr. Corkins entered a plea of guilty to felony theft.
“8. On July 13, 2009, Judge Martin Asher sentenced Mr. Corkins. The Court ordered Mr. Corkins to serve eight months in prison. The Court, however, granted Mr. Corkins’ request for probation from the prison sentence. Additionally, the Court ordered that Mr. Corkins pay restitution in the amount of $13,175.00, with payments to begin at the rate of $560.00 per month no later than August 13,2009.
“9. After being placed on probation, sometime in July or August, 2009, Mr. Corkins called the Respondent to inquire about the $1,300.00 restitution payment. The Respondent told Mr. Corkins that he would forward the $1,300.00 for restitution to the court in ‘the next few days.’ However, the Respondent failed to do so.
“10. On August 24, 2009, Mr. Corkins provided his court services officer with a copy of the receipt that the Respondent gave to Mr. Corkins regarding the $1,300.00. At that time, the court services officer approached Judge Asher with a copy of the receipt.
“11. On August 25, 2009, 12 days after the first restitution payment was due, Judge Asher called the Respondent by telephone. Judge Asher asked the Respondent about the $1,300.00 he was holding for Mr. Corkins for restitution. The Respondent informed the judge that he would forward the money to the court ‘in the next couple of weeks.’
“12. On that same day, the Respondent deposited $1,350.00 with the court for restitution in Mr. Corkins’ case.
“13. Also on August 25, 2009, Judge Asher wrote to the Disciplinary Administrator and lodged a complaint against the Respondent. Thereafter, on September 4, 2009, the Respondent provided his written response to the complaint. In his written response, the Respondent stated:
‘Occasionally, I will place clients’ monies — be that filing fees or diversion fees, or other such fees — into an envelope in their file, rather than to deposit, immediately, those sums into my trust account. This would he one of those instances. (Emphasis added.)’
“14. On April 14, 2010, die Respondent responded to a letter from the Disciplinary Administrator’s office. In the letter, rather than explain where the $1,300.00 went, the Respondent quoted the language included in ¶ 13 above. The Respondent also stated:
‘The investigator seemed skeptical of such an answer at the time; and perhaps he has shared that skepticism with you. In essence, you have a stipulation to the fact that the monies did not ever malee it to my trust account at the bank; and you also have the fact that Mr. Corkins’s account was provided these monies on the day that Judge Asher directed his inquiry to me. The appearance of impropriety, here, would seem to sustain the filing of your complaint on the basis of what you know, already. Can you elaborate further as to the reason for your communication to me?
‘If you find me too evasive, or obtuse, then it is apparent that I need to seek out my attorney to advise me in this matter, sooner, rather than later; and I do respectfully request that I be given time to counsel at length with a disciplinary-complaints experienced attorney who can advise me as to my rights and my options in this matter at this stage of the proceeding. In fact, that attorney might well be able to negotiate and/or give professional input prior to the ultimate filing of the complaint. That is to say in quite a different and clumsy way: He might help write the complaint. Does your office ever approach matters in that fashion, say, via a stipulated complaint? I believe that we can see the potential advantages of such an approach, don’t you?’
“15. On May 28,2010, the Disciplinary Administrator filed a Formal Complaint in this case. In the Formal Complaint, based upon the Respondent’s statements in his letters, the Disciplinary Administrator alleged:
‘5. Respondent elected to hold the cash, rather than deposit it in his trust account....
‘6. Respondent reports that he occasionally puts cash he receives into an envelope and keeps it in his office rather than putting it into a trust account and this was one of those instances. (Emphasis added.)’
“16. In his Answer, the Respondent stated:
‘5. Respondent acknowledges that he should have deposited the $1,300.00 in his Trust Account instead of placing the funds in an envelope in his office.
‘6. By way of further answer, Respondent states that this incident was an isolated event, and he has taken further steps to avoid this type of activity occurring the future.’
“17. At the hearing on this matter, the Respondent testified that he did not deposit the $1,300.00 into his attorney trust account. Additionally, the Respondent testified that he did not place the $1,300.00 in an envelope in Mr. Corkins’ file.
“CONCLUSIONS OF LAW
“1. Based upon the findings of fact, tire Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.15, KRPC 8.4, and Kan. Sup. Ct. R. 211, as detailed below.
“2. Lawyers must keep the property of their clients safe. See KRPC 1.15. In this case, the Respondent failed to properly safeguard his client’s property when he failed to deposit Mr. Corkins’ $1,300.00 into the Respondent’s attorney trust account. Later, on August 25, 2009, after the inquiry from Judge Asher, the Respondent foiwarded $1,350.00 to the court for Mr. Corkins’ restitution. Because the Respondent did not deposit Mr. Corkins’ money into the Respondent’s trust account or otherwise hold Mr. Corkins’ money in trust, the Hearing Panel concludes that tire Respondent violated KRPC 1.15. Additionally, because the Respondent did not even place Mr. Corkins’ money in an envelope and place the envelope into Mr. Corkins’ file (as he represented that he had done), the Hearing Panel concludes that tire Respondent converted Mr. Corkins’ money to his own use. Therefore, the Hearing Panel concludes that the Respondent violated KRPC 1.15.
“3. ‘It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.’ KRPC 8.4(d). In this case, the Respondent engaged in ‘conduct that is prejudicial to the administration of justice’ when he failed to timely forward Mr. Corkins’ money to the court for restitution. As such, tire Hearing Panel concludes that the Respondent violated KRPC 8.4(d).
“4. The Kansas Supreme Court Rules require attorneys to file Answers to Formal Complaints. Kan. Sup. Ct. R. 211(b) provides tire requirements:
‘The Respondent shall serve an answer upon the Disciplinary Administrator within twenty days after the service of the complaint unless such time is extended by the Disciplinary Administrator or the hearing panel.’
“The Disciplinary Administrator served the Formal Complaint on May 28, 2010. The Respondent did not file his Answer to the Formal Complaint until July 8, 2010. Thus, the Respondent violated Kan. Sup. Ct. R. 211(b) by failing to file a timely written Answer to the Formal Complaint. Accordingly, the Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 211(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 properly safeguard his client’s property.
“Mental State. The Respondent knowingly and intentionally violated his duly.
“Injury. As a result of the Respondent’s misconduct, tire Respondent caused potential injury to his client. The Respondent’s misconduct placed his client in a position to be in violation of the terms and conditions of his probation, potentially jeopardizing the client’s freedom.
“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 disciplined on several occasions.
“1. On April 6, 1998, in DA6800, the Disciplinary Administrator informally admonished the Respondent for having violated MRPC 1.2, MRPC 1.3, MRPC 1.4, MRPC 1.7, and MRPC 1.8.” [In a footnote, the hearing panel noted: “At the time the Respondent was disciplined in 1998, the rules of professional conduct were known as the Model Rules of Professional Conduct (‘MRPC’).”]
“2. The Disciplinary Administrator also informally admonished the Respondent on April 6, 1998, in DA6893. In that case, the Review Committee directed that the Disciplinary Administrator informally] admonish the Respondent for having violated MRPC 1.3 and MRPC 1.4.
“3. On June 1, 2001, the Kansas Supreme Court censured the Respondent for having violated KRPC 1.3, KRPC 1.4, and KRPC 1.15 in DA7747. The Court’s censure was published in the Kansas Reports at In re Johanning, 271 Kan. 638, 23 P.3d 895 (2001).
“4. On June 3, 2005, the Kansas Supreme Court placed the Respondent on probation for having violated KRPC 1.1, KRPC 1.3, and KRPC 3.2. The Court’s opinion was published in the Kansas Reports at In re Johanning, 279 Kan. 950, 111 P.3d 1061 (2005).
“Dishonest or Selfish Motive. The Respondent’s misconduct in this case was motivated by dishonesty and selfishness. Clearly, the Respondent used Mr. Corkins’ money to his own benefit. To the Respondent’s credit, he (eventually) made Mr. Corkins’ whole by depositing $1,350.00 into the Court on August 25, 2009. However, it took a call from the judge on the case to get the Respondent to make the deposit with the court to be used for Mr. Corkins’ restitution.
“Bad Faith Obstruction of the Disciplinary Proceeding by Intentionally Failing to Comply loith Rules or Orders of the Disciplinary Process. The Respondent failed to comply with the disciplinary rules by fully cooperating with the Disciplinary Administrator’s office during the pendency of the Formal Complaint and by filing a timely Answer.
“Submission of False Evidence, False Statements, or Other Deceptive Practices During the Disciplinary Process. On the subject of whether the Respondent submitted false evidence or false statements or engaged in other deceptive practices during the disciplinary process, the Hearing Panel is compelled to comment on Disciplinary Administrator’s Exhibit 16 [stipulation of facts] and the Respondent’s Answer to the Formal Complaint.
“Prior to the hearing on the Formal Complaint, the Respondent, his counsel, and the Deputy Disciplinary Administrator negotiated a stipulation of facts. Paragraph 6 was initially drafted to read as follows:
‘Respondent reports that he occasionally puts client’s money into an envelope in their frle rather than immediately depositing into a trust account and that this was one of those instances.’ [Emphasis added.]
Before signing it, the Respondent changed the word ‘was’ to ‘would be.’ On questioning by the Hearing Panel, the Respondent stated that the term ‘would be’ was substituted to indicate that it was ‘hypothetical.’ When pressed, the Respondent admitted that, in this particular instance, the client’s funds were not placed into an envelope.
“Changing ‘was’ to ‘would be’ does not change the meaning of the paragraph. Regardless of whether the paragraph reads ‘was’ or ‘would be’ the implication is clear. The Respondent intended the reader to believe that he placed Mr. Corkins’ $1,300.00 in an envelope and placed the envelope into Mr. Corkins’ file.” [In a footnote the hearing panel observed: “This is the same crafted language used by the Respondent in his correspondence with the Disciplinary Administrator.”] The Respondent did not do that. The Respondent took Mr. Corkins’ money and converted it to his own use. The Respondent’s word game amounts to another deceptive practice.” [In another footnote, the hearing panel observed: “In fact, the Respondent posited during questioning by the Hearing Panel that his exercise may appear ‘Clintonesque,’ resonating with the Supreme Court’s decisions in In re Miller, 282 Kan. 689, 695, 147 P.3d 150 (2006); In re Pyle, 278 Kan. 230, 241, 91 P.3d 1222 (2004).”]
“The Respondent submitted an Answer to the Formal Complaint that contains false statements.
‘5. Respondent acknowledges that he should have deposited the $1,300.00 in his Trust Account instead of placing the funds in an envelope in his office.
‘6. By way of further answer, Respondent states that this incident was an isolated event, and he has taken further steps to avoid this type of activity occurring in the future.’
First, the Respondent did not place the $1,300.00 into an envelope in Mr. Corkins’ file. The Respondent’s statement that he placed the money in an envelope is false and misleading. Second, the Respondent stated that his placing the $1,300.00 in an envelope rather than in his trust account was an isolated event. Regardless of the fact that the Respondent did not place the $1,300.00 in an envelope in this case, the Respondent admitted in his initial response to the complaint that he ‘[ojccasionally placed clients’ monies in envelopes and placed the envelopes in the clients’ files. It is not an isolated event to engage in conduct ‘occasionally.’
“Vulnerability of Victim. Mr. Corldns was vulnerable to the Respondent’s misconduct. His liberty was in jeopardy as a result of the Respondent’s conduct. Mr. Corldns’ vulnerability aggravates the Respondent’s misconduct in this case.
“Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to the practice of law in 1979 and, thus, he has 31 years of experience practicing law. Therefore, the Hearing Panel concludes that the Respondent has substantial experience in the practice of law.
“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 circumstance present:
“Previous Good Character and Reputation in the Community Including Any Letters from Clients, Friends and Lawyers in Support of the Character and General Reputation of the Attorney. The Hearing Panel received and reviewed two letters from the Respondent’s colleagues. From the letters, the Hearing Panel concludes that the Respondent previously enjoyed a good reputation in Atchison, Kansas.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘4.12 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.
‘7.2 Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public, or the legal system.
‘8.2 Suspension is generally appropriate when a lawyer has been reprimanded for the same or similar misconduct and engages in further acts of misconduct that cause injury or potential injury to a client, the public, the legal system, or the profession.’
“RECOMMENDATION
“The Disciplinary Administrator recommended that the Respondent be indefinitely suspended from the practice of law. Counsel for the Respondent recommended that the Respondent be placed on probation pursuant to Kan. Sup. Ct. R. 211(g). That rule provides:
‘(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 Respon dent’s full compliance with tire disciplinary rules and orders of the Supreme Court.
‘(2) If the Respondent provides each member of the Hearing Panel and the Disciplinary Administrator with a plan of probation, the Respondent shall immediately and prior to the hearing on the Formal Complaint put the plan of probation into effect by complying with each of the terms and conditions of the probation plan.
‘(3) The Hearing Panel shall not recommend that the Respondent be placed on probation unless:
‘(i) the Respondent develops a workable, substantial, and detailed plan of probation and provides a copy of the proposed plan of probation to the Disciplinary Administrator and each member of the Hearing Panel at least ten- days prior to the hearing on the Formal Complaint;
‘(ii) the Respondent puts the proposed plan of probation into effect prior to the hearing on the Formal Complaint by complying with each of the terms and conditions of the probation plan;
‘(iii) the misconduct can be corrected by probation; and ‘(iv) placing the Respondent on probation is in the best interests of the legal profession and the citizens of the State of Kansas.’
“In order for the Hearing Panel to be permitted to recommend to the Kansas Supreme Court that the Respondent be placed on probation, the Respondent is required to establish each of the items listed in Kan. Sup. Ct. R. 211(g)(3). In this case, the Respondent failed to establish each of the required items, thus, the Hearing Panel lacks authority to recommend probation.
“First, the Respondent failed to develop a workable, substantial, and detailed plan of probation. The Respondent’s plan of probation is not sufficient to fully address the Respondent’s misconduct.
"The Respondent failed to put the proposed plan of probation into effect prior to the hearing on the Formal Complaint. The Respondent testified that he had one telephone call with the proposed supervisor and that he met with the proposed supervisor for less than one hour, two days prior to the Formal Hearing in this case. Counsel for the Respondent argued that he also visited with the proposed supervisor regarding the supervision. Initial conversations about whether die proposed supervisor would agree to supervise and initial conversations about whether the contents of the plan of supervision are appropriate and sufficient do not amount to implementing the plan. Thus, the Hearing Panel concludes that the Respondent failed to put the plan of probation into effect.
“Further, the Respondent’s misconduct cannot be corrected by probation. Taking a client’s funds and failing to put [them] into an attorney trust account cannot be prevented by any term of probation.
“Finally, placing the Respondent on probation is not in the best interests of the legal profession and the citizens of the State of Kansas. The Respondent has been repeatedly disciplined by the Kansas Disciplinary Administrator and die Kansas Supreme Court. Yet, despite the extensive disciplinary history, including a pre vious 18-month probation, he continues to fail to properly safeguard his client[’s] property.
“Based upon the items included in Kan. Sup. Ct. R. 211(g)(3), the Hearing Panel, therefore, concludes that probation is not appropriate in this case.
“In determining what discipline to impose, it is important to consider the Respondent’s previous experience, instruction, and discipline related to trust account matters. The Respondent has been repeatedly instructed to properly handle client monies.
“In the 2001 disciplinary case, the Hearing Panel recommended that the Respondent:
‘immediately establish an accounting system to track client funds held in trust. The Hearing Panel recommends that the Office of the Disciplinary Administrator conduct an audit on the Respondent’s trust account on or before April 1, 2001, to ensure that the Respondent has established an accounting system to track client funds and is in compliance with KRPC 1.15.’ In re Johanning, 271 Kan. 638, 642 (2001).
“The Court adopted the Hearing Panel’s recommendation and ordered the Respondent to
‘establish an accounting system to track client funds held in trust and that the office of the Disciplinary Administrator conduct an audit on the respondent’s trust account on or before July 1, 2001, to ensure that the respondent has established an accounting system to track client funds consistent with the provisions of KRPC 1.15.’ Johanning, 271 Kan. at 642.
“According to the Respondent’s testimony, the audit by the Disciplinary Administrator’s office was performed by a retired IRS agent. The Disciplinary Administrator’s auditor is Robert Straub, a retired IRS agent. From the Respondent’s testimony, it appears that Mr. Straub instructed the Respondent regarding how to properly establish and maintain an attorney trust account.
“Finally, following the Respondent’s 2005 discipline, he was on probation for 18 months. During the period of probation, the Respondent’s practice, including the Respondent’s trust account, was supervised by another attorney.
“Despite the Hearing Panel’s recommendation in 2001, the Kansas Supreme Court’s order in 2001, the audit by Mr. Straub, and the supervision following the 2005 discipline, the Respondent testified at the instant hearing that he needs assistance in establishing and maintaining his attorney trust account. The prior recommendations, supervision, and orders should have been enough intervention for the Respondent to be able to properly establish and maintain his attorney trust account. Because these interventions were insufficient to educate the Respondent regarding how to properly establish and maintain his attorney trust account, [it] is clear that the Respondent needs to be removed from the practice of law.
“Thus, based upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be suspended from the practice of law for a period of one year. The Hearing Panel further recommends that the Respondent be required to undergo a reinstatement hearing, pursuant to Kan. Sup. Ct. R. 219, prior to consideration for reinstatement.
“Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinary Administrator.”
Respondent’s Exceptions
On November 15, 2010, the respondent filed exceptions to the final hearing report. See Supreme Court Rule 212(d) (2010 Kan. Ct. R. Annot. 344). Specifically, he took exception to the hearing panel’s conclusions concerning his violation of KRPC 8.4(d) (2010 Kan. Ct. R. Annot. 603) (conduct prejudicial to the administration of justice) and Supreme Court Rule 211(b) (2010 Kan. Ct. R. An-not. 327) (failure to file timely answer in disciplinary proceeding). He also took exception to the hearing panel’s conclusions regarding two aggravating factors: bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary process and vulnerability of the victim. Finally, with regard to the subject of the appropriate discipline, the respondent took exception to the hearing panel’s conclusion that “[tjaldng a client’s funds and failing to put [them] into an attorney trust account cannot be prevented by any term of probation.”
The respondent did not argue all of these exceptions in his brief, however. Rather, he raises only two issues for this court’s consideration: (1) whether there was clear and convincing evidence to support the hearing panel’s conclusion that the respondent violated KRPC 8.4(d) and (2) whether there was clear and convincing evidence to support the hearing panel’s determination that the respondent violated Supreme Court Rule 211(b). By not arguing the other exceptions he had raised, the respondent has abandoned those exceptions. See In re Bishop, 285 Kan. 1097, 1106, 179 P.3d 1096 (2008) (a respondent who does not advance arguments or provide record citations to support exceptions to the final hearing report is deemed to have abandoned the exceptions).
Discussion
In a disciplinary proceeding, this court considers the evidence, the findings of the hearing panel, and the arguments of the parties and determines whether violations of the KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Miller, 290 Kan. 1075, 1084-85, 238 P.3d 227 (2010); In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009); see Supreme Court Rule 211(f) (2010 Kan. Ct. R. Annot. 327). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.” ’ ” In re Lober, 288 Kan. at 505 (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]).
In his brief to this court, the respondent does not dispute the factual findings of the hearing panel. Further, the respondent admits that he violated “KRPC 1.5,” which he presumably means to be KRPC 1.15 (2010 Kan. Ct. R. Annot. 505) (safekeeping property), the disciplinary rule cited by the hearing panel in the final hearing report. Because the respondent does not dispute such violation, the violation of KRPC 1.15 is deemed admitted. Supreme Court Rule 212(c) (2010 Kan. Ct. R. Annot. 344).
KRPC 8.4(d) Violation
The first of the preserved exceptions relates to the hearing panel’s determination that respondent violated KRPC 8.4(d), which provides that “[i]t is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.” KRPC 8.4(d) (2010 Kan. Ct. R. Annot. 603). The hearing panel found: “In this case, the Respondent engaged in ‘conduct that is prejudicial to the administration of justice’ when he failed to timely forward Mr. Corkins’ money to the court for restitution.”
The respondent acknowledges that because of his actions, his client’s restitution payment was 12 days late, but he argues that a delay of 12 days was not prejudicial to the administration of justice and, therefore, should not be considered misconduct. In making this argument, the respondent focuses on the lack of any consequence to his client because the payment was late. This focus ignores the impact on his client, the theft victim, the probation officer, and the judge.
More specifically, even though Corkins did not suffer punitive consequences, he was unnecessarily placed in noncompliance with the conditions of his probation and the payment plan established by the district court — a plan to make the victim whole again. See State v. Hall, 45 Kan. App. 2d 290, 247 P.3d 1050 (2011). Corkins had to defend himself just as he was beginning a probationary process, and the probation officer had to deal with the noncompliant probationer and then intercede and take the issue to the district judge. In turn, the judge had to deal with the report. Ultimately, the victim was deprived of the use of funds for a period of time because of the respondent’s delay in paying the money into court. While the delay was not significant, it impacted everyone involved in the issue, and the delay would have been worse if not for the judge’s initiative in inquiring about the missing funds.
The respondent’s actions obstructed Corkins’ compliance with a court order and damaged others’ confidence in the judicial system. In other situations where an attorney has obstructed another’s compliance with a court order or engaged in conduct unbecoming a court officer, we have found a violation of KRPC 8.4(d). See In re Lober, 291 Kan. 394, 399, 241 P.3d 81 (2010) (respondent violated KRPC 8.4[d] when he failed to take action on behalf of client); In re Jensen, 286 Kan. 1160, 1167, 191 P.3d 1118 (2008) (respondent violated KRPC 8.4[d] when he instructed subpoenaed witness that he need not appear in court unless he heard from respondent); In re Pyle, 283 Kan. 807, 815, 156 P.3d 1231 (2007) (respondent’s unrestrained statements violated KRPC 8.4[d] by “ prejudicing] justice in a general sense by lessening the public confidence in our disciplinary system’ ”); see also In re Dennis, 286 Kan. at 735-36 (respondent’s repeated failure to comply with court orders and discovery deadlines in two actions violated KRPC 8.4[d]); In re Coder, 272 Kan. 758, 763, 35 P.3d 853 (2001) (respondent violated KRPC 8.4[d] when he failed to object or assert defense, failed to appear in court, failed to comply with court orders, and failed to provide discovery).
Clear and convincing evidence establishes the charged misconduct of the respondent and supports the hearing panel’s conclusion that the respondent violated KRPC 8.4(d).
Supreme Court Rule 211(b) Violation
The respondent also disputes the hearing panel’s determination that he violated Supreme Court Rule 211(b), which provides, in part, that “[t]he respondent shall serve an answer upon the Disciplinary Administrator within twenty days after the service of the complaint unless such time is extended by the Disciplinary Administrator or the hearing panel.” Supreme Court Rule 211(b) (2010 Kan. Ct. R. Annot. 327).
The hearing panel found that tiiis rule was violated because the Disciplinary Administrator served the formal complaint on May 28, 2010, and the respondent did not file his answer to the formal complaint until July 8, 2010. In his brief, the respondent points out that he requested an extension of time to file his answer and received an e-mail indicating the hearing panel had granted him until July 8, 2010, to file his answer. He contends that he did not violate Supreme Court Rule 211(b) because his answer was filed “within the time frame extended by the Panel.”
In response, the Disciplinary Administrator concedes that disciplinary counsel was copied on the e-mail granting the respondent until July 8, 2010, to answer. The Disciplinary Administrator notes that the extension was never formally journalized and for that reason the extension may not have come to the hearing panel’s attention when it prepared its findings. Nevertheless, the Disciplinary Administrator agrees that the evidence does not support a finding that the respondent violated Supreme Court Rule 211(b).
Because the respondent sought and received an extension of time to file his answer to the formal complaint and because he met the extended deadline, the hearing panel’s determination that he violated Supreme Court Rule 211(b) is not supported by clear and convincing evidence.
Discipline
With respect to the discipline to be imposed, the hearing panel’s recommendation that the respondent be sanctioned with a 1-year suspension with the requirement of a reinstatement hearing is “advisory only and shall not prevent the Court from imposing sanctions greater or lesser than those recommended by the panel or the Disciplinary Administrator.” Supreme Court Rule 212(f) (2010 Kan. Ct. R. Annot. 345); see In re Depew, 290 Kan. 1057, 1073, 237 P.3d 24 (2010). The disciplinary sanction must be based on the specific facts and circumstances of the violations and the aggravating and mitigating circumstances presented in the case. In re Swanson, 288 Kan. 185, 214, 200 P.3d 1205 (2009).
The respondent requests a lighter penalty than the hearing panel’s recommended discipline of a 1-year suspension. He suggests a lighter penalty is appropriate because the Rule 211 violation is not supported, he has shown strong mitigating factors, and the disciplinary action was publicized in his community and yet no further complaints have been filed. The Disciplinary Administrator recommends a harsher discipline of indefinite suspension.
As we weigh the proposed discipline, there are several considerations that lead us to conclude indefinite suspension is warranted. First, as the hearing panel noted, this is not an isolated incident. By the respondent’s own omission he “occasionally” places money in a client’s file rather than in his trust account. This mishandling of client property follows repeated attempts by the disciplinary system to educate and supervise the respondent. In In re Johanning, 271 Kan. 638, 23 P.3d 895 (2001), this court directed the “office of the Disciplinary Administrator [to] conduct an audit of the respondent’s trust account on or before July 1, 2001, to ensure that the respondent has established an accounting system to track client funds consistent with the provisions of KRPC 1.15.” Johanning, 271 Kan. at 642. The respondent admits the audit was conducted, and the auditor instructed him on how to establish and maintain an attorney trust account. Then, according to the respondent, the attorney who supervised the probation that followed his 2005 discipline monitored the respondent’s trust account. Our files reflect that even though the court placed the respondent on probation on June 3, 2005, for an 18-month period, the respondent was not discharged from probation until December 18, 2008. In re Johanning, 287 Kan. 685, 199 P.3d 1251 (2008); In re Johanning, 279 Kan. 950, 111 P.3d 1061 (2005). In other words, he had been counseled about the need for trust accounting for over 7 years. Despite those efforts by others, exactly 6 months after his discharge from probation, the respondent accepted money from Corkins but did not properly account for it in a trust account. Clearly, past attempts to educate and encourage a modification of behavior have failed.
Second, the respondent’s attempt to finesse the wording of the stipulation and his misstatements in his answer are extremely troubling. As the hearing panel noted, the respondent stated in his answer: “ ‘5. Respondent acknowledges that he should have deposited the $1,300.00 in his Trust Account instead of placing the funds in an envelope in his office.’ ” (Emphasis added.) In fact, he did not place the money in an envelope. The next paragraph of the respondent’s answer is equally misleading. He stated: “ ‘6. By way of further answer, Respondent states that this incident was an isolated event, and he has taken further steps to avoid this type of activity occurring in the future.’ ” He later admitted he had placed money in a file on other occasions. Then, when the Disciplinary Administrator prepared a stipulation using the wording of paragraph 6 of the answer, the respondent attempted to create his hypothetical. We are as perplexed as was the hearing panel as to how changing “was” to “would be” changed the meaning of the paragraph or made the wording a hypothetical. Clearly, the wording was misleading, and we find the misrepresentations and the attempt to disguise the misstatements as a “hypothetical” to be egregious conduct.
Third, we are concerned that the respondent does not fully appreciate the seriousness of his misconduct. In the respondent’s comments to the court, he suggested that we allow him to practice but limit his practice to cases where he is appointed by the court to represent the indigent. He suggests that he rarely receives client property in these cases. Yet, the matter that led to this discipline was a criminal case in which the respondent was appointed counsel. The respondent’s suggested solution minimizes his misconduct and reflects a failure to recognize that an attorney who accepts a client’s money — regardless of whether the attorney is retained or appointed — has an obligation to account for those funds.
Finally, we note the hearing panel’s finding that the respondent’s conduct was intentional.
For these reasons, we conclude indefinite suspension is warranted.
Conclusion
It Is Therefore Ordered that Marlin E. Johanning be indefinitely suspended from the practice of law in the state of Kansas, effective on die filing of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2010 Kan. Ct. R. Annot. 276).
It Is Further Ordered that the respondent shall comply with Supreme Court Rule 218 (2010 Kan. Ct. R. Annot. 370), and in the event respondent seeks reinstatement, he shall comply with Supreme Court Rule 219 (2010 Kan. Ct. R. Annot. 370).
It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports. | [
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On November 25, 2009, this court suspended the respondent, Kevin Peter Shepherd, from the practice of law in Kansas for a period of 3 years. See In re Shepherd, 289 Kan. 1116, 220 P.3d 359 (2009). In its opinion, the court permitted the respondent to request that the order of suspension from the practice of law be lifted after 1 year if the respondent complied with certain conditions.
On November 30, 2010, the respondent filed a motion to suspend the imposition of the remaining 2 years of suspension from the practice of law. The motion was referred to the Disciplinary Administrator for investigation. On December 7, 2010, the Disciplinary Administrator filed a response to the respondent’s motion. In the response, the Disciplinaiy Administrator acknowledged that the respondent fully complied with the orders in the court’s November 25, 2009, opinion. The Disciplinary Administrator approved the respondent’s plan of probation and did not object to the respondent’s request to be placed on probation.
The court, after carefully considering the record, grants the respondent’s motion to suspend the remaining 2 years of suspension from the practice of law in Kansas and places the respondent on probation for the remainder of the suspension term subject to the following terms and conditions:
1. Therapy. The respondent shall continue his current therapy with Dr. Steve Lerner. The respondent shall provide Dr. Lemer with an appropriate release of information necessary to allow Dr. Lemer to provide such information to the Disciplinary Administrator. The treatment shall continue throughout the period of supervised probation unless Dr. Lerner deems treatment is no longer necessary. Dr. Lerner shall notify the Disciplinary Administrator in the event that respondent discontinues treatment against his recommendation. Dr. Lerner shall malee quarterly reports to the Disciplinary Administrator regarding the respondent’s diagnosis, current treatment plan, compliance with current treatment plan, and prognosis.
2. Medication. In the event it becomes necessary for the respondent to take medication, the respondent shall have regular contact with a qualified medical professional regarding the medication. The respondent shall follow the qualified medical professional’s recommendation regarding the prescribed medications.
3. Practice Limitation. The respondent’s practice shall be limited to domestic relations cases, criminal defense cases, and cases that are related to criminal defense, including driver’s license suspension and drug tax cases. The respondent shall not engage in the practice of law in any other areas of practice.
4. Practice Supervision. The respondent’s practice shall be supervised by a practice supervisor. Terry Beck, a licensed attorney in good standing, is hereby designated to supervise the respondent’s practice. The respondent shall allow the practice supervisor access to his files, calendar, operating account records, and trust account records. The respondent shall comply with any request made by the practice supervisor. The respondent shall meet with the practice supervisor on a weekly basis. During these meetings the respondent and the practice supervisor shall review all new cases, all upcoming deadlines, court appearances, and fee agreements. Further, the respondent and the practice supervisor shall review the respondent’s schedule for the following week to ensure that proper notice has been provided, that the respondent is thoroughly prepared for the representation, and that the file is properly updated. The practice supervisor shall provide the Disciplinary Administrator with a detailed monthly report regarding the respondent’s status on probation. The respondent shall add the practice supervisor’s name to his attorney trust account as a signatory. All trust account checks and transfers shall require the signature of the respondent and the practice supervisor.
5. File Audits. The practice supervisor shall conduct an audit of the respondent’s files within 60 days of the date of this order. Thereafter, the practice supervisor shall conduct audits every 6 months throughout the period of supervision. After each audit, the practice supervisor shall provide a detailed report of the audit to the respondent and the Disciplinary Administrator. If the practice supervisor discovers any violations of the Kansas Rules of Professional Conduct, the practice supervisor shall immediately notify the respondent and the Disciplinary Administrator. Additionally, the practice supervisor shall include that information in the detailed report. The respondent shall immediately comply with all recommendations and correct all deficiencies noted in the practice supervisor’s periodic audit reports.
6. Office Procedures. Within 10 days of this order, the respondent shall provide the Disciplinary Administrator and the practice supervisor with a set of written office procedures designed to monitor the status, deadlines, and court appearances of all matters in which he has undertaken representation. The office procedures shall include detailed information regarding the filing system, calendaring systems, and methods to respond to oral, telephonic, written, and electronic communications from clients. The Disciplinary Administrator and practice supervisor shall review the written office procedures and determine whether the office procedures are appropriate and sufficient. The respondent shall immediately comply with all recommendations and correct all deficiencies in the office procedures as determined by the Disciplinary Administrator or practice supervisor. The respondent shall comply with all written office procedures, as approved by the Disciplinary Administrator and practice supervisor.
7. Communications. The respondent shall attempt to respond to oral, telephonic, written, and electronic communications the same business day. All oral, telephonic, written, or electronic communications shall be answered within 3 business days.
8. Practice Supervisor. The practice supervisor shall be acting as an officer and agent of the court while supervising the respondent’s practice. The practice supervisor shall be afforded all immunities granted by Supreme Court Rule 223 (2010 Kan. Ct. R. Annot. 384) during the course of his activities pursuant to this order.
Dated this 2nd day of May, 2011.
9. Cooperation. The respondent shall continue to cooperate with the Disciplinary Administrator. If the Disciplinary Administrator requires any further information, the respondent shall timely provide such information.
10. Professional Liability Insurance. The respondent shall continue to maintain professional liability insurance.
11. Additional Violations. The respondent shall not violate the terms of his probation or the provisions of the Kansas Rules of Professional Conduct. In the event the respondent violates any terms or conditions of his probation or any of the provisions of the Kansas Rules of Professional Conduct during the period of supervision, the respondent, practice supervisor, and the Disciplinaiy Administrator shall comply with Supreme Court Rule 211(g)(9)-(12) (2010 Kan. Ct. R. Annot. 327).
It Is Therefore Ordered that the respondent’s motion be granted and that the respondent’s license to practice law in Kansas be reinstated, 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. Upon proof provided to the Clerk of the Appellate Courts that the respondent has complied with the annual continuing legal education requirements and has paid the fees required by the Clerk of the Appellate Courts, the Clerk is directed to enter respondent’s name upon the roster of attorneys engaged in the practice of law in the state of Kansas, subject to the above terms and conditions of supervised probation. The terms and conditions of supervised probation will continue until the conclusion of the respondent’s original 3-year suspension period.
It Is Further Ordered that this order shall be published in the official Kansas reports and that the costs of the reinstatement proceeding be assessed to the respondent. | [
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The opinion of the court was delivered by
Rosen, J.:
This is an appeal in an action brought under the Kansas Uniform Trade Secrets Act, K.S.A. 60-3320 et seq. The defendants, former employees of the plaintiff Progressive Products, Inc. (PPI), challenge the district court finding that they misappropriated protected trade secrets, and, on review before this court, they additionally challenge the remedial procedure that the Court of Appeals directed.
We summarize the facts as follows. In June 1980, Bob Allison approached Roger Messenger about working with his firm, which coated elbow pipes for pneumatic conveyance systems to prolong the lives of those systems. Allison came up with the concept of coating the outside of the pipes instead of the inside in 1974, and, following 2 to 3 years of experimentation, he proved the feasibility of that process. The firm originally used an after-market product that it purchased and applied to piping. Messenger joined the firm as a partner, and he and Allison became the sole owners of PPI after buying out a third owner in 1983.
Enlisting the help of specialists at Pittsburg State University and other chemists, Messenger developed a formula for making a coating compound called Ceram-Back. He developed the formula in part by examining the ingredients list of an after-market product and in part by experimenting with the components until he found a combination that effectively protected the pipes. The formula consisted of ceramic beads, a catalyst, a hardener, and a proprietary fume silica thickener. This combination proved to be much more effective than the original after-market compound.
Messenger devoted about a year and a half to developing the proper formula and amounts to apply to different piping requirements. Allison and Messenger kept the ingredients away from public viewing. They testified that they would throw a tarp over the materials when someone from the outside, such as a vendor, came to the plant. Neither Messenger nor his colleagues ever pursued patenting their product, because patents have a limited lifespan and become open to competitors at the expiration of the patent protection.
Messenger estabhshed telephone contacts with potential purchasers and kept a written record of PPI customers, which Allison later entered into a computer database. Messenger also developed a pricing system based on the cost of materials and what the market would bear, and Allison later developed computer programs to facilitate making price quotations based on that system. When Messenger retired in 1999, he sold his interest back to Allison and signed a confidentiality agreement and agreement not to compete for 5 years.
Marvin Robarts worked as a welder for PPI from November 2002 to June 29, 2006. He then began a business called VIN Manufacturing, LLC (VIN), which he started with Calvin Bunney. VIN also used a chemical compound to coat the outsides of elbow pipes. Robarts got the idea for how to mix the coating and the ingredients from his own work at PPI and from Bunney, who had worked as a mixer at PPL Instead of the proprietary thickener that PPI used in its formula, VIN used a less expensive thickening agent that Robarts found on the Internet. He testified that no one ever told him the PPI formula and process were a secret, that the chemicals were lying around the PPI shop in the open, and that no one covered up the chemicals when management took customers or vendors on building tours. In fact, employees were allowed to take empty labeled barrels of the materials that went into the PPI formula home for use as trash or bum barrels.
Bunney worked at PPI from January 2001 to June 29,2006. Like Robarts, he also learned what the Ceram-Back ingredients were from seeing them at the PPI plant. He testified that no one told him that the mixing process was confidential or that the components of Ceram-Back were confidential. He further testified that no measures were taken to keep any employees out of areas where the chemicals were identified and stored and that no measures were taken to conceal the ingredients and mixing supplies from customers during plant tours.
Thomas Swartz worked at PPI as a salesman from March 23, 2003, to August 31, 2005. He testified that he helped with the mixing process four or five times a year, and no one told him that the mixture was secret and confidential. He was, however, directed not to give the Material Safety Data Sheets (MSDS) to customers; these sheets contained the details of the Ceram-Back ingredients. He also testified that everyone at PPI had access to the customer lists and the price lists. Swartz went to work for Robarts and Bunney at VIN and relied on his memory and the Internet to contact customers with whom he had worked at PPL
William McGinnis, who worked as a temporary employee welder for PPI, and Brenda Caruthers, a secretary/receptionist for PPI, were nondefendants who testified that no one told them that the Ceram-Back materials or process were confidential and secret. They also testified that all the ingredients were left out in the open and were not covered up during the customer tours that they witnessed. Furthermore, the welders were given the work orders that contained pricing and customer information, and the welders were allowed to watch the process of making the Ceram-Back, including the measuring of materials and the application to the pipes.
On July 21, 2006, PPI filed a four-count petition in district court seeking damages under theories based on the Kansas Uniform Trade Secrets Act, breach of fiduciary duty, and intentional inter ference with existing and prospective business relationships. PPI filed a separate motion requesting a restraining order and injunction preventing the defendants from manufacturing or using the ceramic formula or using the customer and pricing lists. On the same day, the district court granted the injunctive relief. The defendants subsequently filed an answer in which they asserted counterclaims for abuse of process, improper restraint, and tortious interference with a contract.
Following a bench trial, the district court entered judgment for PPI. The district court determined that PPI possessed a protected trade secret. It did not enjoin the defendants from continuing to market, manufacture, and apply the ceramic coating, but it enjoined the defendants from divulging the formula to other parties for 3 years and required the defendants to pay a 20 percent royalty to PPI for any sales to PPI customers based on the use of the protected process. The court denied the defendants’ claims for damages and denied PPI’s request for attorney fees.
PPI filed a motion to reconsider, which the court denied. PPI filed a timely notice of appeal challenging the relief it received, and the defendants filed a timely notice of cross-appeal challenging the finding that they had misappropriated a protected trade secret.
The Court of Appeals held that sufficient evidence supported a finding that PPI owned protected trade secrets relating to the formula and the calculation of batch amounts, that the price lists were not trade secrets as a matter of law, and that no evidence supported a finding that the customer lists were a trade secret. The Court of Appeals then concluded that the royalty injunction was not supported by the district court’s factual findings and did not comport with the available statutory remedies. Progressive Products, Inc. v. Swartz, 41 Kan. App. 2d 745, 205 P.3d 766 (2009). This court granted review as to all issues.
Discussion
Kansas enacted the Kansas Uniform Trade Secrets Act in 1981. L. 1981, ch. 214, sec. 1. The Act is short and has been subject to little amendment or appellate litigation. In relevant part, the Act reads as follows:
“K.S.A. 60-3320. As used in this act, unless the context requires otherwise:
“(1) ‘Improper means’ includes theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means.
“(2) ‘Misappropriation’ means:
(i) acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or
(ii) disclosure or use of a trade secret of another without express or implied consent by a person who
(A) used improper means to acquire knowledge of the trade secret; or
(B) at the time of disclosure or use, knew or had reason to know that his knowledge of the trade secret was
(I) derived from or through a person who had utilized improper means to acquire it;
(II) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or
(III) derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or
(C) before a material change of his position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.
“(3) ‘Person’ means a natural person, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision or agency, or any other legal or commercial entity.
“(4) ‘Trade secret’ means information, including a formula, pattern, compilation, program, device, method, technique, or process, that:
(i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and
(ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.”
“K.S.A. 60-3321.
“(a) Actual or threatened misappropriation may be enjoined. Upon application to the court, an injunction shall be terminated when the trade secret has ceased to exist, but tire injunction may be continued for an additional reasonable period of time in order to eliminate commercial advantage that otherwise would be derived from the misappropriation.
“(b) In exceptional circumstances, an injunction may condition future use upon payment of a reasonable royalty for no longer than the period of time for which use could have been prohibited. Exceptional circumstances include, but are not limited to, a material and prejudicial change of position prior to acquiring knowledge or reason to know of misappropriation that renders a prohibitive injunction inequitable.
“(c) In appropriate circumstances, affirmative acts to protect a trade secret may be compelled by court order.”
“K.S.A. 60-3322.
“(a) Except to the extent that a material and prejudicial change of position prior to acquiring knowledge or reason to know of misappropriation renders a monetaiy recovery inequitable, a complainant is entitled to recover damages for misappropriation. Damages can include both the actual loss caused by misappropriation and the unjust enrichment caused by misappropriation that is not taken into account in computing actual loss. In lieu of damages measured by any other methods, the damages caused by misappropriation may be measured by imposition of liability for a reasonable royalty for a misappropriator’s unauthorized disclosure or use of a trade secret.
“(b) If willful and malicious misappropriation exists, the court may award exemplary damages in an amount not exceeding twice any award made under subsection (a).”
“K.S.A. 60-3323. If (i) a claim of misappropriation is made in bad faith, (ii) a motion to terminate an injunction is made or resisted in bad faith, or (iii) willful and malicious misappropriation exists, the court may award reasonable attorney’s fees to the prevailing party.”
“K.S.A. 60-3324. In an action under this act, a court shall preserve the secrecy of an alleged trade secret by reasonable means, which may include granting protective orders in connection with discovery proceedings, holding in-camera hearings, sealing the records of the action, and ordering any person involved in the litigation not to disclose an alleged trade secret without prior court approval.”
“K.S.A. 60-3326.
“(a) Except as provided in subsection (b), this act displaces conflicting tort, restitutionary and other law of this state providing civil remedies for misappropriation of a trade secret.
“(b) This act does not affect:
(1) Contractual remedies, whether or not based upon misappropriation of a trade secret;
(2) other civil remedies that are not based upon misappropriation of a trade secret; or
(3) criminal remedies, whether or not based upon misappropriation of a trade secret.”
“K.S.A. 60-3327. This act shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this act among states enacting it.”
As it relates to the present appeal, the Act tells us that it seeks uniformity with other jurisdictions that have adopted the Uniform Trade Secrets Act. In order for PPI to prevail, it was required to show that the defendants employed theft or breached a duty to maintain secrecy in order to acquire trade secrets that had an independent economic value and that these secrets were not readily ascertainable by proper means by the defendants. PPI would also have had to demonstrate that it made reasonable efforts under the circumstances to maintain the secrecy of the trade secrets. If PPI succeeded in meeting these burdens, the question then became whether the district court made findings, supported by substantial competent evidence, necessary to impose the relief that it granted, most significantly, a royalty injunction.
The Uniform Trade Secrets Act operates in conjunction with patent law to protect developers and legitimate users of new commercial ideas and technology. A key difference between a trade secret and a patent is that the latter is open to public inspection, while the former is maintained in secrecy:
“A patent owner acquires a time limited monopoly over the patented technology, and patent infringement can occur through the use of that technology by any means. The owner of a trade secret, on the other hand, is protected only against improper appropriation of the secret and subsequent use of a secret wrongly acquired. An owner of a trade secret may forgo resort to patent protection, but this choice risks the loss of the secret by voluntary use and disclosure or through legitimate, good faith means, such as reverse engineering.” Evans v. General Motors Corp., 51 Conn. Supp. 44, 55-56, 976 A.2d 84 (2007).
Trade secrets are not protected against independent invention. Instead, the law of trade secrets recognizes that private parties invest extensive sums of money in certain information that loses its value when published to the world at large. Based on this logic, trade secret law creates a property right that is defined by the extent to which the owner of the secret protects that interest from disclosure to others. In doing so, the law allows the trade secret owner to reap the fruits of its labor and protects the owner’s moral entitlement to these fruits. Trade secret law encourages the development and exploitation of lesser or different inventions than might be accorded protection under the patent laws, but which still play an important part in technological and scientific advancement. Without trade secret protection, organized scientific and technological research could become fragmented, and society as a whole could suffer. By restricting the acquisition, use, and disclosure of another’s valuable, proprietary information by improper means, trade secret law minimizes the inevitable cost to the basic decency of society when one steals from another. In doing so, trade secret law recognizes the importance of good faith and honest, fair dealing in the commercial world. (Paraphrasing DVD Copy Control Assn., Inc. v. Bunner, 31 Cal. 4th 864, 880-81, 4 Cal. Rptr. 3d 69, 75 P.3d 1 [2003], and the sources cited and quoted therein.)
We now turn to the first issue before us: Did the district court commit reversible error in holding that the defendants misappropriated PPI’s trade secrets? In order to resolve this issue, we must determine whether the record and factual findings relating to the existence of a trade secret support the legal conclusion that the defendants misappropriated a trade secret. This presents a mixed question of fact and law, which means that this court reviews the underlying factual findings for substantial competent evidence and reviews the legal conclusions based on those facts de novo. Boldridge v. State, 289 Kan. 618, 622, 215 P.3d 585 (2009). When reviewing whether substantial evidence supports a factual finding, this court does not reweigh the evidence, resolve conflicts within the evidence, or pass on the credibility of witnesses. In re Care & Treatment of Williams, 292 Kan. 96, 104, 253 P.3d 327 (2011).
PPI alleged that the defendants misappropriated three trade secrets: the formula and mixing process of the ceramic backing, the computerized customer lists, and the computer pricing program. The district court, while not clearly articulating which secrets it considered misappropriated, made several findings that suggested that it agreed with all three parts of the PPI claim:
“10. The most demonstrative act was Swartz obtaining the price sheet for Defendant Robarts at Robarts’ request prior to leaving the company and in anticipation and with knowledge that he was going to start his own business known as VIN in direct competition with his employer PPI and in anticipation of contracting known customers of PPI through Swartz’s knowledge and contacts and that he gained also working at PPI.
“11, It took PPI years to develop the formula, batching system, the pricing and the ability to interpolate or price any elbow knowing just the size of the elbow.
“12. It took several years for the original owners of PPI to get where they are and to acquire a customer base.
“14. ThatPPI did have a trade secret under K.S.A. 60-3320, and that it included information, a formula, a program, some method or technique of batching, and the quantification of the eight units and the exact formula as pointed out by plaintiffs with regard to the mixture and the ingredients, the pricing method established by them and contained within their computer program, and the price sheet.
“15. Defendant Swartz misappropriated the price sheet at the request of Defendant Robarts during the time when he was employed in anticipation of beginning another business.
“16. VIN is in possession of this trade secret, or at least very important portions of the trade secret, including the exact formula, and all this information was gained during the Defendants’ employment at PPI.”
The defendants maintain that the district court found only that they had misappropriated the price sheet. Although paragraphs 15 and 16 are ambiguous, in the context of the other factual- findings and the remedy, it is evident that the district court included in the misappropriated secrets the price sheet, the formula, and the customer lists.
The critical trade secret is the ceramic formula and the process of applying it to the elbow pipes. The trial testimony indicated that the defendants made little, if any, use of the pricing program or the customer lists, because those were areas of information that they were able to figure out on their own.
The defendants rely on Webster Engineering and Mfg. Co., Inc. v. Francis, No. Civ. A. 89-1416-FGT, 1993 WL 406025 (D. Kan. 1993) (unpublished opinion), that declined to find a trade secret when employees had not been informed which information the employer considered confidential. The Webster court cited Electro-Craft Corp. v. Controlled Motion, 332 N.W.2d 890, Syl. ¶ 6 (Minn. 1983), which discussed the procedures that an employer must use to “signal” the nature of information to its employees. The Minnesota court concluded that if an employer wants to prevent its employees from revealing manufacturing procedures, it has “an obligation to inform its employees that certain information was secret.” Electro-Craft Corp., 332 N.W.2d at 902.
While this requirement appears reasonable, the record in the present case contains evidence that PPI made some effort to notify its employees that the Ceram-Back formula was a secret. Although his testimony was countered by defense witnesses, Pat Damman, PPI president, testified that he informed the defendants that they could not divulge the ingredients to third parties. Damman also testified that the Ceram-Back ingredients, “especially the [proprietary thickener],” were “covered up” when outsiders visited the plant.
The existence of a trade secret is an issue for the trier of fact. See Universal Engraving, Inc. v. Duarte, 519 F. Supp. 2d 1140, 1151 (D. Kan. 2007). The statute does not require a particular means of protecting a secret; rather, it requires only that the secret “is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” K.S.A. 60-3320(4)(ii). It was for the district court, and is not for us to decide whether PPI made reasonable efforts to protect the secrecy of the formula and the process for making Ceram-Back.
We have no difficulty agreeing with the Court of Appeals that the evidence supported the district court’s findings that the formula for Ceram-Back was a protected trade secret. PPI President Damman testified that he told employees that the formula was confidential. PPI sales personnel were instructed not to give MSDS to customers or potential customers. Damman also testified that personnel were instructed to conceal key ingredients, especially the proprietary thickener, from visitors to the plant. Although there was some testimony that the measures taken were loose and not uniformly enforced, the evidence was sufficient to find that the formula was a protected trade secret. The defendants admitted that they did not reverse-engineer the formula and that they based their own formula on what they had learned from PPI. Even though the defendants may not have used the proprietary thickener in their product, the district court could properly find that the Ceram-Back formula itself was a secret and its formulation provided the defendants with the necessary information for producing their own formula. We therefore conclude that the district court did not err in finding that the formula was a protected trade secret. This was the essential trade secret that was misappropriated; it was this formula that allowed the defendants to start a competing business without investing in the years of experimentation and research that PPI principals had carried out.
We also agree with the Court of Appeals that the district court properly found that the “batch method,” or means of calculating the amount of the compound to make up and the cost of that compound, was protected, because PPI had developed a computer program for this purpose that was password protected. The evidence sufficed for a trier of fact to find that the program for calculating material quantities was a trade secret. The formula itself is a mathematical calculation of the area of the pipe to be covered and the number of coats of ceramic protection to be added. Although it may have been nothing more than a spreadsheet for generating numbers from a simple calculation, the program constructed to carry out the calculation was a trade secret because it was a means that PPI developed specifically for calculating production amounts based on its secret formula. The defendants misappropriated this protected trade secret.
The Court of Appeals held that the record contained insufficient evidence to support a finding that the mixing process and the price lists were protected trade secrets. We agree. In particular, the facts that the mixing process was carried out in the open, the marked mixing containers were left in public view, and employees were not specifically instructed that the process was confidential undermined any claims to secrecy about the process. Prices were available to customers, and these customers were free to communicate with each other how much they were paying for certain work.
Having affirmed the district court’s determination that the defendants misappropriated the Ceram-Back formula and the batch calculation program, we next must address whether the district court committed reversible error when it ordered a remedy consisting of a 3-year royalty period coupled with other short-term relief. The relief allowed the defendants to continue to operate an elbow-coating business, subject to the conditions that they not divulge the formula to third parties, that they not advertise that they were using a product similar to Ceram-Back, and that they pay PPI a 20 percent royalty for sales made to PPI customers for a period of 3 years.
The Court of Appeals reversed this award, holding that the statutory language and the specific factual findings by the district court did not allow for such injunctive relief. The Court of Appeals concluded that the record contained no evidence of an overriding public interest against broader injunctive relief, no evidence that the defendants acquired the secrets in good faith, and no evidence of other exceptional circumstances that would support a royalty injunction.
Appellate courts will defer to trial courts’ determination of whether exceptional circumstances exist that would warrant injunctive relief, because the trial court is in the best position to observe the behavior and demeanor of the witnesses and to gauge their credibility. See Chilcutt Direct Marketing, Inc. v. A Carroll, 239 P.3d 179, 183 (Okla. Civ. App. 2010). The decision whether to grant royalty relief once exceptional circumstances are found is subject to review as an abuse of discretion. Chilcutt, 239 P.3d at 184. An exercise of discretion, however, must be based on a correct interpretation of the law in order to be protected on appeal. In re M.F., 290 Kan. 142, 150, 225 P.3d 1177 (2010).
K.S.A. 60-3321(b) allows for relief in the form of a royalty injunction. Such an injunction may lie when the district court finds “exceptional circumstances”; those circumstances “include, but are not limited to, a material and prejudicial change of position prior to acquiring knowledge or reason to know of misappropriation that renders a prohibitive injunction inequitable.”
The district court made no express finding of exceptional circumstances and did not explicitly rely on K.S.A. 60-3321(b). The Court of Appeals examined the record and concluded that the evidence was insufficient as a matter of law to establish exceptional circumstances under K.S.A. 60-3321(b). We cannot agree with this conclusion under the clear statutory language. See State v. Sellers, 292 Kan. 117, 128, 253 P.3d 20 (2011) (courts give effect to plain and unambiguous statutory language).
It is unclear what factors might have led the district court to find that exceptional circumstances existed, but three possibilities stand out. First, as the district court noted in its journal entry, PPI was “a bit lax” in protecting the trade secret and in informing its em ployees “to what extent they would not allow that information to be transmitted to third parties or anyone else.” Evidence in the record certainly supports this finding. No written instructions were given to employees that the formula and process were a secret; there was testimony that the ingredients and mixing containers were left in plain sight of visitors and employees, including those not immediately involved in the mixing process; and employees were not asked to sign confidentiality agreements. Evidence was conflicting on whether employees were orally informed that they were not to reveal the components to third parties. Second, the formula that the defendants used in their process was not identical to the PPI formula. In fact, PPI considered the proprietary thickener to be the “secret ingredient” that made its formula so effective, but the defendants did not use that thickener in their own ceramic-backing compound. Third, evidence was introduced showing that other companies engaged in the pipe-coating business, although it was unknown to what extent their formulae resembled the Ceram-Back formula. Finally, PPI President Damman testified that he did not think that the defendants had taken any business from PPI or cost PPI any revenues during the some 8 months that the defendants marketed their competing services. One measure of monetary relief for misappropriation may be the award of the plaintiff s profit loss. See K.S.A. 60-3322; Mid-Michigan Computer Systems, Inc. v. Marc Glassman, Inc., 416 F.3d 505, 510 (6th Cir. 2005); Restatement (Third) of Unfair Competition § 45, comment d (1995). Some of these factors may go to the existence of a protected trade secret, but they may also have contributed to the district judge’s finding on whether exceptional circumstances were present that justified a limited-term royalty injunction.
There are no set rules for what constitutes “exceptional circumstances.” The comment to § 2 of the Uniform Trade Secrets explains:
“Section 2(b) deals with the special situation in which future use by a misappropriator will damage a trade secret owner but an injunction against future use nevertheless is inappropriate due to exceptional circumstances. Exceptional circumstances include the existence of an overriding public interest which requires the denial of a prohibitory injunction against future damaging use and a person’s reasonable reliance upon acquisition of a misappropriated trade secret in good faith and without reason to know of its prior misappropriation that would be prejudiced by a prohibitory injunction against future damaging use.” 14 Uniform Laws Annot., § 2, comment, p. 620 (2000).
In A & H Sportswear Co. v. Victoria’s Secret Stores, 967 F. Supp. 1457, 1477 (E.D. Pa. 1997), tire court concluded that “the essence of the codification is the need to balance harm to the plaintiff with the other equities in a particular case in order to award appropriate relief.” The court went on to allow the defendant to continue to use a “Miracle Bra” trademark on swimwear, even though the plaintiff had a preexisting trademark in “Miraclesuit” swimwear on which the defendant’s mark impinged, subject to payment of royalties. See also Newport News Industrial v. Dynamic Testing, Inc., 130 F. Supp. 2d 745, 752 (E.D. Va. 2001) (statute requires “case-by-case” analysis of equities to determine appropriate relief); Electronic Data v. Heinemann, 268 Ga. 755, 756-57, 493 S.E.2d 132 (1997) (trial court did-not abuse discretion in imposing royalty injunction because of public interest in competition, plaintiff s delays in bringing matter to resolution, and adequacy of royalty to protect parties’ respective interests).
In the alternative, the district court may have based its decision on K.S.A. 60-3322(a). The district court did not specify the statutory basis of its royalty injunction. K.S.A. 60-3322(a) allows the imposition of royalties in lieu of damages based on actual loss or unjust enrichment. In the present case, PPI conceded that it had not suffered any actual loss, and the defendants testified that they had made a minimal profit of perhaps $400-$450. Under those circumstances, the royalty relief may have been appropriate, and the equitable grounds stated above may have justified the limited injunctive period.
We cannot determine from the record on what factors, if any, the district court relied in finding extraordinary circumstances or on which statutory provision the district court grounded its relief. Ordinarily, absent a proper objection to insufficient factual findings below, this court presumes that the district court found the necessary facts to supports its conclusion. Hodges v. Johnson, 288 Kan. 56, 65, 199 P.3d 1251 (2009). When the record on appeal does not support such a presumption, however, this court must remand for additional factual findings and legal conclusions. Dragon v. Vanguard Industries, 282 Kan. 349, 356, 144 P.3d 1279 (2006).
Because the district court’s findings are incomplete, they do not permit meaningful appellate review. We accordingly reverse the Court of Appeals’ opinion reversing the remedy that the district court ordered. We remand the case to the district court for the limited purpose of entering an order specifically correlating legal conclusions to facts found in the trial record in a manner consistent with this opinion and relating to the basis for imposing the royalty injunction and other short-term injunctive relief.
The judgment of the Court of Appeals reversing the district court is affirmed in part and reversed in part. The judgment of the district court is affirmed in part and reversed in part, and the case is remanded with directions to the district court.
Moritz, J., not participating.
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|
The opinion of the court was delivered by
Yatjmtine, J.:
This action was commenced in the court below by the plaintiff in error, Alexander McDonald, against the defendant in error, Thomas Carney, on the 9th of October, 1868. Afterwards, on the 22d of. the same month, said Carney was served with a notice of garnishment in the same court in an action wherein John McKee, receiver, etc., was plaintiff, and said McDonald and others, composing the firm of J. T. McWliirt & -Co., were defendants. Said McKee was receiver in an action wherein said Carney was plaintiff and Thomas C. Stevens was defendant. Afterwards, on the 9th of November, 1868, said Carney answered in this action, and in the second count of Ms answer set up the fact that he had been garnisheed as aforesaid as a defense to the action. McDonald demurred to said second count of Carney’s answer, claiming that it did not state facts sufficient to constitute a defense to his action. The court below overruled said demurrer, and this ruling is assigned for error.
That a plea such as is contained in the second count of Carney’s answer is a good defense for the time being to the plaintiff’s action, we have no doubt. But upon the overruling of the demurrer what judgment or order the court should have made, is not so clear. In New York it has been decided that such a plea is a good plea in abatement of the action; (Embree v. Hanna, 5 Johns., 101; see also Brock v. Smith, 1 Salkeld, 280, and Com. Dig. Attachment, H.;) but in other states it has been held that it can only be good for the purpose of abating or suspending or staying further proceedings in the action until the proceedings in garnishment shall be finally determined: Crawford v. Clute 7 Ala., 157; Crawford v. Stade, 9 Ala., 887; Winthrop v. Carleton, 8 Mass., 456; Merton v. Webb, 7 Vt., 123; Wadleigh v. Pillsbury, 4 N. H., 373. This latter rule we should judge is probably the correct one; but as no judgment or order was made in this case in the court below, except the mere order overruling the demurrer, and as neither party asked for any other judgment or order, we think it is not necessary for us to decide the question now. We now simply decide that the demurrer was properly overruled. We do not think that because this action was commenced against Carney before he was garnisheed in the case of McKee v. McDonald, et al., that such fact invalidates or renders void the garnishment: (Drake on Attachment, §§ 616 to 623, and eases there cited; also § 702, and cases cited.) Neither do we think that because McKee was a receiver in an action in which Carney was a party the garnishment was void. A receiver represents all the parties, plaintiff, defendant, and creditors, (2 Story Eq., § 829,) and he may take possession of and control over all the property and other matters connected with the receivership, and sue and be sued with reference thereto in his own name. (Comp. Laws, 1862, p. 167, § 265; Gen. Stat., p. 678, § 257.) In a proper case, McKee, as receiver, could undoubtedly, under tbe direction of tbe court, sue Carney himself, or Stevens, or any other person who should interfere with his rights as receiver. Therefore, as McKee is not merely the representative of Carney, or of Carney’s interests, we can see no good reason why he could not garnishee Carney. In Louisiana it has been held that a plaintiff may garnishee himself; (Grayson v. Tucke, 2 Martin, 688; Richardson v. Gurney, 9 La., 285;) but in Massachusetts the supreme court has strongly intimated the other way, though they do not decide the question. (Belknap v. Gibbons, 13 Metc., 471, 473.)
If the firm of McWhirt & Co., of which McDonald was a member, were liable in the action brought against them by McKee, then they were'all jointly and severally liable under our statute, and the property of each and all was liable for the judgment that might be rendered against them; and therefore McKee undoubtedly had the right to garnishee any creditor of any member of the firm, (Drake on Attachments, § 566, and cases cited,) and hence there can be no doubt of his right to garnishee Carney.
Under our code, we think that the statement of the facts in the second count of the answer when attacked by a general demurrer was clearly sufficient. The order of the court below overruling the demurrer is affirmed.
Kingman, 0. L, concurring.
Brewer, J., did not sit in the case. | [
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The opinion of the court was delivered by
Brewer, J.:
On the first day of June, 1869, plaintiff and defendants entered into a written contract by which plaintiff sold to defendants a certain tract of land in Labette county, and bound himself-to convey the same “by a good and sufficient deed of warranty, on or before the first day of January 1870, or as soon thereafter • as a title can be obtained by the said Craft.from the IT. S. government.” Not complying with his contract,.defendants brought their action in the district court to compel.the execution of a deed. A demurrer was filed to their petition, which was overruled by that court and judgment entered in their favor for the relief sought. Of this judgment plaintiff now complains, and seeks its reversal.
The petition alleged atender of $9.75; that the tract of land contained 7f acres, and that the amount of $9.75 so tendered was the amount which the parties had agreed should be paid for the land. A copy of the contract is attached to the petition. Prom the terms of this contract plaintiff in error claims that the tender was insufficient in amount. The language used defendants in error are to pay “ the sum of s^x dollars and twenty-five cents, and as much more as spa]i necessary -to make up the entrance price of said land.” It is averred in the petition that the entrance price was $1.25 per acre, or a few cents less than $9.75, the amount tendered. Plaintiff in error claims that the amount due was the $6.25 in addition to the entrance price, $9.75, or $16 altogether. We do not so understand the stipulation. The price to be paid was to be at least $6.25; and if the entrance price should prove to be more than that, then the amount should be increased till it equaled or made up such entrance price. It may be conceded that the language is not perfectly perspicuous. But it is averred in the petition that $9.75 was the amount agreed upon, which averment is by the demurrer admitted to be true, except so far as the plain meaning of the contract attached overcomes the admission. Of course, the construction of a contract is matter of law, which by a demurrer is not admitted to be as claimed; but where the language is susceptible of two interpretations, an averment that the parties used it in the one sense may ordinarily be considered as admitted by the filing of a demurrer, and the contract construed as though it bore but the one meaning. The suggestion that the parties must have known the area of the tract, and that it could not reasonably be supposed that plaintiff would contract to sell the land at the exact price he should have to pay for it, has little force, for this may have been but the inferior part of a larger tract he was seeking to purchase, and in addition, by the terms of the contract, he reserved to himself the right to remove all the saw timber thereon.
It is further claimed that interest on the $9.75 from the date of entry to the time of tender should have been included in such tender. We think not. Payment was to be made by the terms of the contract “ upon the making and exeouting said deed.” Until a ■ tender of such deed interest would not begin to run. It is further objected that the decree required Craft “together with his wife, if any he have,” to make execute and deliver a deed for the premises. It does not appear that Craft has a wife. It does appear that no such person was made a party, or served with process, or complains decree. Craft can bardly expect to secure a reversal of a judgment because of the possibility of his having a wife who is unaffected by and satisfied with such judgment.
It is averred in the petition that the money tendered “ is in , the hands of W. Posey, a resident of Oswego, Kansas, subject to the order of Craft, upon the execution of the deed.” The decree orders that such sum so deposited be paid to Craft 011 demand. We think this portion of the decree should be modified. Equity, when it takes cognizance of any controversy between parties, should if possible so dispose of it as to prevent further litigation. Posey not being a party to this suit might decline to pay Graft the money, and another suit be required to obtain it. The deposit with Posey was not sanctioned or authorized by Craft. Posey may be solvent, or not. He may have left the State, or died since the commencement of this suit. The deposit with him was at the risk of the depositors. The decree will therefore be so far modified as to require defendants in error to pay plaintiff in error the amount of $9.75, and that upon such payment said plaintiff make, execute and deliver the deed provided for in the decree.
It is further insisted that the contract was void as in contravention of the laws of the United States; that the tract was a part of the public lands; that Craft could enter it only by making oath that no other person had any interest therein, and that he was not entering tor the benefit of any other person. It is sufficient to say in reply to this that the petition does not disclose the status of the land, what steps if any'Craft had already taken to perfect Ms title, or what interest he had in the land. We cannot presume anything in favor of the illegality of the transaction. We must consider it legal until facts are presented which compel us to hold it otherwise.
The judgment of the district court will, except as modified above, be affirmed with costs against the plaintiff in error.
All the Justices concurring. | [
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The opinion of the court was delivered by
Kingman, C. J.:
A question of practice is raised which must first be settled. A case made, or a bill of exceptions, should speak the truth as to the particular matter intended to be preserved thereby; and if there are any facts not presented by the party aggrieved, the adverse party has a right to insist that such facts shall be inserted in the case made, or bill of exceptions, before it is signed. In this case the de fend ants in error had a right to demand that their several exceptions made on the trial should be made a part of the “ case made,” and the court below correctly permitted such action. Such exceptions might be material, and of vital importance in this court. Gen. Stat., p. 740, § 559.
This was an action brought by the plaintiff to recover a sum of money due them from the partnership firm of Hays & Ludlum. It was brought against Samuel S. Ludlum, administrator of William H. Hays, and against William Dunlap and D. R. Anthony, his sureties in the administration bond, and against S. T. Oarr, Thomas R. Clark, and Lafayette Mills, his sureties on a bond for the faithful execution of the trust incurred by Ludlum by reason of his taking possession of the property of Hays & Ludlum, a firm composed of John B. Ludlum and the decedent Hays.
The defendants Dunlap and Anthony interposed a demurrer, on the ground that the petition did not state facts sufficient to constitute a cause of action against them. The demurrer was sustained, and this ruling it is insisted is erroneous. But there can be little doubt that the decision of the court was correct. The petition, after stating the cause of action and the fact that Anthony and Dunlap had executed the bond as sureties of the administrator in his administration of Hays’ estate, and that Clark, Carr, and Mills were the sureties of the administrator for the faithful execution of the trust that had devolved upon him by reason of his having taken possession of the partnership property, has this averment:
“ Plaintiffs further allege that all of the property of which the said Wm. H. Hays died seized was the one undivided half of the goods and chattels and credits theretofore belonging to the firm of Hays & Ludlum, all of which said property and assets were situate within the said county of Leavenworth and state of Kansas aforesaid, and within the jurisdiction of said probate court in and for said county.”
The petition elsewhere states with great particularity that it was on giving the bond with Clark, Carr, and Mills, as his sureties, that he did forthwith take possession of the partnership assets. In another part of the petition it is alleged that the probate court apportioned the sum of money in the hands of the administrator among the creditors of the late firm of Hays & Ludlum. It is clear that if all the assets in the hands of the administrator were the partnership property, and required to pay the partnership debts, then the sureties in the administra tion bond were not primarily liable. By tbe common law tbe surviving partner would have been tbe one to whom tbe creditors of tbe firm of Hays .& Ludlum would have bad to look for their money, and against whom they would have had to bring suit, if such a proceeding was necessary. In the absence of statutory regulations, the law was, that on the death of one of the partners, as the surviving partner stood charged with the whole of the partnership debts, the interest of the partners in the property should be held so far a joint tenancy as to enable the surviving partners to take the property by survivorship for all purposes of holding and administering the estate, until the property is reduced to money, and the debts are paid; but when the debts are all paid, and the purposes of the partnership are all accomplished, the surviving partner is to account for and pay over to the representative of the deceased partner his just share of the partnership funds. We have stated the law as it existed before the statute of our state changed it, to show that in the absence of the statute Dunlap and Anthony would not be liable on the bond until the partnership debts were paid, and the remainder of the partnership assets had come into the hands of the administrator. But our statute has made a material change in the law. Before a surviving partner can proceed to close up the partnership affairs, he must give a bond: Comp. L., p. 519, § 47; (Gen. Stat., p. 437, § 33.) If he fails to give the bond, the estate, not only of the decedent, but of the surviving partner as far as the partnership is concerned, can be taken from his possession and given to the administrator upon his giving the requisite bond. Comp. L., p. 520, §§ 49,50. (Gen. Stat.j p. 437, §§ 35, 36.) This bond is to secure the execution of the trust; and that trust is that he takes not only the property of the decedent, but also that of the surviving partner, pay off the debts of the partnership with the proceeds thereof as far as the same will go, and pay over to the surviving partner his just proportion of -the funds, if any shall be found due after the payment of the debts. Now, by the averments of the petition, all the property that ever came into the hands of S. S. Ludlum came as the administrator of. this trust, for which alone the sureties oil the second bond were liable. And where a petition show's that a defendant is not hable, a demurrer is properly sustained; and such is this case. The plaintiff by his own showing had no cause of action against Dunlap and Anthony, and had no right to keep them in court any longer.
The action was on a judgment of the probate court of Leavenworth county, in favor of the plaintiff, and against S. S. Eudlum, in his fiduciary character, and alleging as breach that the administrator refused to pay, and had converted the assets to his own use and benefit. Answers were filed by Oarr, Clark, and Mills, and a jury being waived, a trial was had before the court who found the facts and gave judgment for the defendants. It is important to bear in mind the object of the plaintiff’s petition, which is to enforce against the sureties on the bond a judgment of the probate court against their principal, and that the breach alleged is the conversion of the assets to his own use by the administrator, and his refusal to pay the judgment. This will broadly mark the distinction between this1 case and many of those cited in argument, where the breach was a neglect to account, or a willful concealment of assets in a settlement, or a want of due dilligence and fidelity in closing up the affairs of the partnership. The court below decided the case upon the ground that the- evidence when introduced did not sustain the breach as laid down by the plaintiff in his petition; or, in his own words: “The record does not show that the money in the hands of the administrator, and which he was ordered to pay to the creditors, was derived from the partnership estate.” And in this proposition we agree with the learned judge of the "district court, whose very able opinion is before us, and from which, as it fairly and plainly elucidates the point under discussion, we make this extract:
“ If the record was susceptible of the construction claimed by the plaintiffs, I should be disposed to solve any mere doubts in their favor; but I have read it with great care two or three times, and each reading has strengthened my conviction that it will bear no such interpretation. The report, or account of the administrator is headed,‘ Samuel S. Ludlum, adm’r, &c. — Aee’t —Estate of "William H. Hays, dec’d;’ then follows a list of items debiting the administrator with money collected from time to time, sometimes merely stating the names of the persons from whom received, and at others that it was for merchandise sold or accounts collected. Following this is an itemized accormt of money paid out, giving the name of the person to whom paid, and indicating in very general terms for what purpose, such as wages, rent of store, printing, store fixtures, lights and fuel, etc., and concluding with a summary of the whole amount of money collected and paid out, with the amount of the claims of the fifth class, showing money sufficient to pay the above per cent, on all claims of that class. is an affidavit of Ludlum, swearing to the of the report, in which he styles himself, ‘ adaKnistrator 0f estate of William H. Hays, deceased.’ The form of the report, or account, is that usually followed by administrators of the individual or general estate of deceased persons. The record of the action of the court shows simply that the report of the administrator was approved, and he was ordered to pay eighty-six and two-fifths per cent, of the full amount of debts of the fifth class, together with three or four other claims specially described. But nowhere, either in the report, or the action of the court thereon, does it appear, or is it intimated, that it was a settlement of the administration of the property of the firm of Hays & Ludlum, or that the money in the hands of the administrator belonged to the partnership estate, or was derived therefrom. The administrator was required to keep his accounts separate, and make settlement of each estate by itself. He could not mingle them together in one common account. The estates were separate and distinct. The one was the sole estate of the deceased. The other was the joint estate of the decedent and surviving partner. The fund derived from one estate was primarily liable for the individual debts of the deceased; that derived from the other for the liabilities of the firm. Until the partnership estate was fully administered., and the respective interests of the deceased and surviving partner were ascertained, no creditor or legatee of the deceased could claim the fund arising from the partnership property. Then, if the settlement does, not show upon its face that both estates were included in the report, or account, there can be no presumption to that effect. The law would presume he was making settlement only upon one estate, the record showing for itself which one. The administrator could not make a settlement of his administration on the partnership estate, and then, when sued, claim it was a settlement of his administration on the individual estate of the decedent. He is bound by the settlement, as he makes it, as it appears by the record. The record is conclusive upon him, save only for fraud or mistake. It is equally conclusive on creditors of either estate.
“ I feel clear, therefore, that the construction claimed for the record of settlement by the counsel for the plaintiffs is not the proper and correct one. From what has been said it may be inferred, and probably necessarily so, that the record shows a settlement of the individual estate of the deceased; and unless they could show fraud or a mistake, the sureties to the first bond would be liable for the amount claimed in this suit.”
So far we entirely agree with the decision of the district court, and the decision of this point settles this case. The action is on a judgment of the probate court, a judgment which the petition alleges is against the administrator of Hays, acting as the administrator of the partnership estate of Hays & Ludlum; a judgment that is conclusive and binding on the sureties of the administrator of this partnership trust. And when examined, the record shows a judgment against thfe same party, but as the administrator of a different fund. Such a judgment most clearly does not fix any liability on Carr, Clark, and Mills. The judgment is not against Ludlum on any trust which these parties are surety for. There are no allegations in the petition of fraud or mistake in the settlement — no allegations that authorize the court to go behind the judgment rendered, even if the district court has that power. The petition merely seeks to make certain parties liable as sureties on a bond, because the plaintiff has a judgment against the principal that binds the sureties. When the judgment is presented it appears on its face to be one that does not affect any fund for which the sureties are bound. The judgment in such a case must speak for itself — must of necessity be its own interpreter. The court cannot go behind it, or look for evidence elsewhere to explain it. The settlement and order of payment in conformity thereto is the judgment of the probate court, and beyond this the district court decided rightfully it could not go in this case. The authorities in support of this proposition are numerous, and are to be found in the brief of the defendants in error.
Many other grave questions were discussed in the argument, but as their decision is not necessary in this case, an examination of them will not be attempted in this opinion, though they have received that attention that their importance demands. The judgment of the district court is affirmed.
Yaeentinb, J., concurring.
Brewer, J., not sitting. | [
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The opinion of the court was delivered by
Yalentine, J.:
The defendant in error brought an action in the court below to recover from the county of Wabaunsee a certain sum of money which he claims to be due to him under the following circumstances: Certain lands lying within said, county belonging to said Walker were sold for the taxes for the year 1860, and the taxes for the years 1861,1862, and 1863 were subsequently entered on the book of tax sales as provided by law. In 1864 Walker redeemed a part of said lands from said taxes, and in 1865 he redeemed the balance. The treasurer of said county, at the time of said redemption charged and collected from Walker interest on said taxes at the rate of fifty per cent, per annum. Walker paid the same under a written protest filed at the time with said treasurer, claiming that the interest should be only at the rate of twenty-five per cent, per annum, and not fifty per cent, as charged by the treasurer. It seems to be admitted now by all parties that Walker was correct; that the interest should have been only at the rate of twenty-five per cent, per annum.
These facts were presented to the court below by the petition, of the said Walker. The county by its counsel demurred to said petition on the ground that the same did not state facts sufficient to constitute a cause of action. The court overruled said demurrer and rendered judgment for Walker. This judgment the county claims was erroneous, and this court is now asked to reverse the same. Upon these facts the counsel for the county presents two questions for our consideration: First, Oan the defendant in error (Walker) recover back money paid under such circumstances ? Second, Should not the defendant in error have first presented his claim for allowance to the county commissioners, and if disallowed then appealed to the district court?
The first question has been substantially decided as we think in the case of Phillips v. Jefferson Co., 5 Kas., 412. It is true that the facts in that case differ in some respects from the facts in this; but the principle running through the two cases is substantially the same. In that case “ money was paid to redeem lands sold for taxes which were at the time they were assessed and taxed Indian lands and not liable to assessment and taxation, and at the time said money was so paid the then owner of the lands denied the legality of the taxes on the ground that the lands were not taxable, and paid the money to prevent tax deeds which were then due from being made for such lands;” and it was held by the court “that such payment was volv/ntary, and could not be recovered back.” The rule governing cases of this kind has been laid down in Ohio as follows: “ To make the payment of an illegal demand involuntary” when the party is advised of all the facts, “it must be made to appear that it was made to release the person or property of the- party from detention, or to prevent a seizure of either, by the other party having apparent authority to do so without resorting to an action at law.” Mays v. Cincinnati, 1 Ohio St., 268, 278. And the same rule has been laid down in Massachusetts, as follows: “ If a party with full knowledge of all the facts of the ease voluntarily pays money in satisfaction or discharge of a demand unjustly made on him, he cannot afterwards allege such payment to have been made by compulsion, and recover back the money, even though he should protest at the time of such payment that he was not legally bound to pay the same.” Boston & Sandwich Glass Co. v. Boston, 4 Metc., 181, 187, 188. In England the rule has been laid down as follows: “Where a voluntary payment was made of an illegal demand, the party knowing the demand to be illegal, without an immediate and urgent necessity, (or, as expressed by Mr. Bancroft, unless to redeem or preserve your person or goods,) it is not the subject of an action for money had and received.” Fulham v. Down, 6 Espinasse, 26, per Lord Kenyon. In Maryland it has recently been decided that “No action will lie to recover back money voluntarily paid with a full knowledge of the facts and circumstances under which it was demanded, though the payment may have been made under a protest.” Awalt v. Eutaw Building Association, 34 Md., 435.
Counsel for defendant in error refer us to the case of Baker v. Cincinnati, 11 Ohio St., 534. Baker was engaged in the business of giving theatrical exhibitions in the city of Cincinnati. The city passed an ordinance requiring the proprietors of such a business to take out a license. The license was $62.50, which Baker paid, together with one dollar fee to the officer issuing the same. Baker protested at the time against paying the $63.50, claiming that it was illegal, and afterwards sued the city to recover it back. The supreme court of Ohio held that it was not illegal, and that he could not therefore recover the same back. We suppose that that was really an end of the case. But the supreme court went further and declared that if the tax for the license had T>een illegal then Baker could have recovered the $63.50 he paid therefor back. There cannot be much weight attached to such a decision, for the decision was not necessary in the case. Put still the decision is probably correct. There seems to have been an immediate and urgent necessity for him to obtain the license or stop his business at perhaps great loss. If he continued his business without taking out a license he run the risk of being prosecuted criminally for a violation of the city ordinance.
"We have also been referred by counsel for defendant in error to the case of Falkner v. Hunt, 16 Cal. 167. The law as laid down in that case may be good law in California. And so far as the facts of that case are reported, the decision may not only be correct in California, but might also be correct in Kansas. In that case the action was brought to recover of the defendant who was a tax collector a sum of money for taxes illegally assessed and paid by the plaintiff under protest. Whether the tax collector had levied a warrant on the plaintiff’s property and taken the property into his possession, or was about to levy upon and seize the plaintiff’s property, is not stated. In either case the plaintiff would have a right to pay the taxes under protest and then recover the amount back. The case of the U. S. Bank v. The Bank of Washington, 6 Peters, 8, referred to by counsel for defendant in error, is rather against the defendant in error than in his favor.
A correct statement of the rule governing such cases as this would probably be as follows: Where a party pays an illegal demand with a full knowledge of all the facts which render such demand illegal, without an immediate and urgent necessity therefor, or unless to release his person or property from detention, or to prevent an immediate seizure of his person or property, such payment must be deemed to be voluntary, and cannot be recovered back. And the fact that the party at the time of making the payment files a written protest does not make the payment involuntary. For the reasons for this rule we refer to the authorities already cited, and also refer to the argument made in the brief of counsel for plaintiff in error.
In the present case neither the person nor the property of Walker stood in any immediate danger. There was no immediate necessity for him to pay said illegal interest. The tax-sale certificates were still held by the county, and while so held, according to the decisions of this court, no tax deed could ever be executed; (4 Kas., 388, 415; 5 Kas., 625.) And there does not seem to have been any danger of an immediate transfer of said tax-sale certificates. If Walker had tendered to the treasurer the proper amount to redeem his lands from said taxes, and if the treasurer had then refused to issue to him certificates of redemption therefor, Walker would have had an ample remedy without paying said illegal interest. • lie could have restrained by injunction the transfer of the tax-sale certificates, or the execution of tax deeds if there had been any danger of the same being done, and he could have compelled by mandamus the treasurer to issue to him certificates of redemption. Under such circumstances the payment of said illegal interest was purely voluntary on the part of Walker. He had his choice, and if he refused to pay the same he was in no danger of losing anything provided he resorted to the legal remedies that were open to him. Having voluntarily paid said illegal interest, knowing the same to be illegal, he cannot now recover it back. ■
Having decided the first question in favor of the plaintiff in error, it is deemed unnecessary to decide the other question.
The judgment of the court below is reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Kin&man, C. J.:
This was an action brought by defendants in error to recover a certain lot in Leavenworth. The issues were tried by the court and special findings of the facts were made, and judgment for the recovery of the lot. "Whereupon the plaintiffs in error claimed the benefit of the occupying claimant law. They were adjudged entitled thereto, and an inquiry awarded. A jury was summoned, and a return made by the jury awarding damages to plaintiffs in error. They excepted, and moved the court to set aside the assessment and valuation, which the court refused to do.
In this court five grounds of error are assigned: First, That the court erred in the conclusions of law from the facts found. Second, That the court erred in limiting the benefit of the occupying claimant law to such improvements as were made after the 28th of December, 1863. Third, In refusing to set aside the assessment made. Fourth, In refusing to settle 'and sign the case made and presented. Fifth, In refusing so to do for the reasons stated by the judge. Of these alleged errors in their order.
I. James 0. 0. Moore was the original owner of the lot. On the 5th of September, 1863, the district court of Leavenworth county made a decretal order for a conveyance of the lot in controversy to certain parties plaintiffs in a suit against said James 0. 0. Moore. On the 7th of May, 1866, this judgment was declared to die “null and void,” and of no effect whatever, for want of jurisdiction of the person of Tames C. C. Moore. Between the time of rendering these judgments, Maria J. North, one of the plaintiffs in error, became the purchaser of the lot from persons who held under the first judgment. The court below, to reach its conclusions, must have held that the persons in whose favor the judgment of September, 1863, was rendered took nothing thereby. This we suppose to be the law. The judgment was held void, not voidable. It was so held not in a collateral proceeding, but in a direct manner to have the judgment set aside. It is then relieved from those embarrassing considerations which have perplexed courts as to what effect should be given to judgments when they stood unreversed and apparently binding. The question is also freed from any .possibility of pretending that it was only voidable. It is declared void on evidence not preserved, and not before us. We know of no case where a void judgment is held to support a title. Even the case of Hammond v. Davenport, 16 Ohio St., 177, on which the plaintiff in error relies, holds the judgment to be good, although it does so on grounds that fail to convince us that it is correct. Still, it does not go so far as to hold that a void judgment conveys, of its own inherent force, any valid and legal title. This point is decided on reasoning that it would be difficult to shake in the case of Harris v. Hardeman, 14 How. S. C., 337, where the authorities are collected. These cases stand in direct conflict with the decision in Hammond v. Davenport, and are in our opinion the law. The counsel refers us to section YY of the code, and to that part of it that provides where a judgment is opened to let in a party, who is served only by publication, to defend, “ that the title to any property, the subject of the judgment or order sought to be opened, which by it, or in consequence of it, shall have passed to a purchaser in good faith, sha,11 not be affected by any proceedings under this section, nor shall they affect the title of any property sold before judgment under an attachment.” Considerable weight seems to have been given to a similar provision in tbe Ohio law in the decision of Hammond v. Davenport as an “ indication of legislative policy.” But we cannot perceive how a provision that protects bona fide purchasers under a valid judgment, can be twisted to mean that the legislature intended to protect purchasers under a void judgment. If any inference is to be drawn from this section, it would seem to be directly a contrary one. The legislature have expressly protected one class of purchasers, even when the judgment under which it was made is set aside. It might be inferred that by omitting a totally different class it did not intend to protect them. Those protected by section 77 are those who take under a valid judgment, obtained on a service by publication. In this case there was no judgment, for a void judgment is no judgment at all. It was an attempt to adjudicate upon the rights of Moore, without any service on him, and was a nullity. Under section 77, as a privilege, a certain class of persons are permitted to reopen a judgment lawfully obtained, and litigate the questions settled by the judgment; but they cannot have that privilege without taking it coupled with a condition that, whatever may be the result of the litigation, rights of property obtained under the judgment in good faith shall be preserved. It was perfectly competent for the legislature to prescribe the terms upon which such a privilege should be granted. But in this case no such privilege was granted. The judgment against Moore was not opened in order that the matters involved might be litigated. It was swept away as a nullity, because it had the semblance of a judgment without any jurisdiction in the court that rendered it over the rights of Moore.- He had not had his day in court. The process of the law had never reached him, and had no power over him, or his estate; and what was done under such circumstances was ooram non judice, and amounted to nothing.
II. The evidence' in this case is not before us, nor are the facts on which the plaintiffs in error were allowed * benefits °* the occupying claimant law, farther than as they appear in the findings on the issue as to tbe title to tbe lot; and therefore we cannot say on what evidence the decision of the court limiting the claim to improvements made after Mrs. North became the purchaser was based. It may have appeared that all the improvements made anterior to that date were made by James C. C. Moore himself. If so, his heirs could not in this case be made to pay for them to the plaintiffs in error. There is nothing in the record authorizing us to decide that the court erred in tin's particular.
III. The grounds urged here why the court should have set aside the assessment made by the jury are two: l.-Tkat the plaintiffs in error were entitled to reasonable notice Ume °f making such assessment, and that n0 such notice was given. 2.-The assessments were too small.
The statute makes no provision for a notice; still, as this is a separate proceeding, there can be no doubt that the party not demanding the assessment ought to have and is entitled to a reasonable notice that he may attend, and call the attention of the jury to the improvements made, and take such other action to protect his interests as the nature of the proceedings admit. A notice to the attorney of record is sufficient; for while it is a separate proceeding from the original suit, it grows out of it, and is so far dependent on it that no new process is necessary. Patterson v. Prather, 11 Ohio, 35. In this case notice was given to one of the attorneys of plaintiff in error the day before the assessment was made; and it does not appear that he made any objection to the sufficiency of the notice, or that the time was too short. It does appear by his affidavit made afterwards, that the general management of the case had been in the hands of his partner, who had the particular knowledge necessary to advise and direct as to this particular inquiry. This partner was informed of the proceedings on the morning of the day the inquiry as to the value of the improvements was made, attended the same, made no objections as to want of preparation, and was allowed time to find a person who could point out to t]ie jury the improvements to be valued, and assisted in placing evidence before them. It is too late to object to want of notice, or want of sufficient notice, when a party has appeared without objection, and has taken the chance of a satisfactory decision, has taken steps to obtain such a decision, and makes his objection only when the decision is not such as he expected or desired. By his appearance and participation he waived his right to insist on notice, or to claim that it was not a reasonable one.
It would seem to us from the affidavits offered on the motion to set aside the assessment that the amount returned was too small, but the value of m pwrte affidavits, made ' , ™ , „ . where no opportunity is offered tor cross-examination, and by persons selected by the party offering them, is not such that they overbear the decision of twelve disinterested men selected by law to determine the very question at issue. We cannot therefore say that the verdict clearly was too small.
IY. The fourth assignment may be considered with the fifth, for it does not make any difference whether the reason given for a decision is correct or not. It is the decision that this court can reach, not the reason given therefor. It is obvious that we cannot reach the error complained of (if it be one) on error. The facts are not presented. The relief in such cases is by mandamus.
The judgment is affirmed.
Yalentine, J., concurring.
Brewer, J., not sitting. | [
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The opinion of the court was delivered by
Beier, J.:
Defendant Christopher Dwayne Hall attempts to appeal after entering guilty pleas to six felonies and one misdemeanor in Shawnee County. Hall challenges his competency to enter a plea and to be sentenced. Hall also alleges that the district judge did not properly advise him of the maximum penalty for first-degree murder. We dismiss Hall’s appeal of his convictions for lack of jurisdiction. We affirm his sentence on the merits.
A brief review of the factual and procedural background is necessary to understand the context of our decision.
Hall was charged with aggravated battery, two counts of attempted murder in the first-degree, conspiracy to commit aggravated robbery, murder in the first-degree, aggravated indecent lib erties with a child, and criminal desecration of a body. The charges stemmed from two different sets of events.
On December 25, 2006, Hall and his two brothers went to the home of Michael Joseph Delaney with plans to rob Delaney. One of them hit Delaney with a hammer, and another hit Jennifer Leigh Hughes, Delaney’s girlfriend, with another hammer. Hall later returned with one of his brothers, and the two of them hit Delaney and Hughes with the hammers again, including hitting each in the head. They then removed a safe from Delaney’s apartment.
About 2 weeks earlier, Hall had sex with a minor, N.W.; strangled her; and hid her body in a closet. Hall and his brothers then transported N.W.’s body in a trash can to Lake Shawnee, poured gasoline on the body, and lit it on fire. Hall’s DNA ultimately was found inside N.W.
The district court conducted a hearing on Hall’s competency on December 5, 2007, when the parties stipulated to a November 29, 2007, evaluation report. The report determined that Hall was incompetent to stand trial, and the district judge agreed. The judge ordered Hall committed to Lamed State Security Hospital for evaluation, treatment, and care.
While Hall was at Lamed, Dr. David Landers completed a forensic evaluation on Hall. His report, dated May 23, 2008, determined that Hall was competent to stand trial and assist in his own defense. Lamed discharged Hall on May 28, 2008.
The district judge held a second competency hearing on the consolidated cases on June 18, 2008. The parties stipulated to the Landers report, and the district judge found Hall competent to stand trial.
Thirteen months later, Hall’s counsel filed a motion for mental examination pursuant to K.S.A. 22-3219 and K.S.A. 22-4508. K.S.A. 22-3219 deals with the defense of lack of mental state by reason of mental disease or defect at the time of the charged crime or crimes. K.S.A. 22-4508 deals with the procedure to obtain funds for expert or other services for a criminal defendant. Neither statute deals with a defendant’s competence to stand trial or assist counsel. Nevertheless, in his motion, counsel noted that he had experienced difficulty communicating with Hall and that he was unsure Hall fully comprehended counsel’s advice or the severity of the situation. The motion requested that Dr. George Hough perform an additional psychological evaluation of Hall. The district court granted the motion for evaluation.
Hough completed his evaluation of Hall on September 18,2008. Based on his review of the case records, including the two earlier reports, as well as his own interview, Hough concluded that Hall probably suffered from paranoid schizophrenia, major depression, dissociative disorder, and antisocial personality disorder. Hough described Hall as “flagrantly psychotic” and “barely interviewable.” Hough concluded that Hall was “clearly very psychiatrically impaired” but that “there was also evidence from the testing . . . that Mr. Hall is also embellishing his symptom presentation.”
Apparently lacking an understanding of his limited role in this case, i.e., support for a mental disease or defect defense, Hough also opined on Hall’s competency to stand trial. Hough stated: “Despite his level of severe disturbance, he does know that he has been charged with a serious crime and the potential consequence he faces if found guilty; he knows the roles and functions of the officers of the Court; and he has a working relationship with his attorney.” Hough concluded that Hall was competent to stand trial.
One day after Hough drew his conclusions but before those conclusions reached the parties or the district judge, Hall pleaded guilty on all counts charged. The plea agreement specifically stated that there were no agreements as to sentencing and set out the sentencing range for each count. The agreement also stated that first-degree murder was “an 'off-grid’ person felony with a sentence of 'life’ ” and a presumption that the sentence would be served in prison. In the agreement, Hall affirmed that he had discussed his legal options with his attorney, that it was his own voluntary decision to accept the plea, and that he was not under duress or coercion. He further affirmed:
“My mind is clear and I am not presently under the influence of alcohol or drugs or under a doctor’s care for mental, emotional, or psychological conditions which would in anyway affect my ability to make a reasoned and well-informed judgment or decision, and I know of no reason why my mental competence at the time of the commission of these offensefs] or at the present time should be questioned. I am satisfied that I am in full possession of my faculties and well able to malee sound and reasoned decisions as to what is in my best interest.”
In addition, Hall affirmed that he understood the contents of the plea agreement and the consequences of his plea.
At the plea hearing, Hall confirmed in court that he had been given'a chance to review the plea agreement with his attorney; that he had signed the written plea agreement; that he understood the agreement; and that he intended to be bound by the agreement. During the plea hearing, the district judge went through each count and the sentencing guidelines range for each offense with Hall. For murder in the first-degree, the judge informed Hall the offense was an off-grid felony with a sentence of life, served in the custody of the Secretary of Corrections. The judge also confirmed that Hall understood the rights he was waiving by entering a plea of guilty. Hall’s counsel went through each count and the factual basis for each count with Hall. On the count of murder in the first-degree, when asked if he committed the crime, Hall at first answered: “I don’t know.” After further conversation with his counsel, Hall eventually answered “yes” when asked again. The judge also asked Hall if he was under the influence of alcohol or drugs, or a doctor’s care for mental, emotional, or psychological conditions that would affect his ability to make a decision. Hall informed the court he was on Celexa, Benadryl, Thorazine, Trazodone, and Toradol. But he said that he met with his attorney, reviewed the agreement, and made an informed decision to enter a plea.
The judge found that Hall had been fully advised of his rights and understood those rights he was waiving by entering a plea. The district court specifically found Hall competent to enter his plea and found him guilty on all counts.
Hall was sentenced to a hard 50 for the first-degree murder. On the two counts of attempted murder in the first-degree, the district judge sentenced Hall to 246 months and 165 months. On the counts of aggravated indecent liberties, sexual intercourse with a victim 14 to 15 years of age, and aggravated robbeiy, the judge sentenced Hall to 61 months each. On the count of conspiracy to commit aggravated robbery, the court sentenced Hall to 34 months, and on the count of desecration of a body, the judge sentenced Hall to 12 months. The sentences on all counts were to run consecutive. Hall’s counsel did not challenge Hall’s competency during sentencing.
Hall also did not file a motion to withdraw his plea pursuant to K.S.A. 22-3210(d) in the district court. Instead, he waited to argue directly to this court on appeal that the district judge erred by accepting his guilty plea and, further, that the judge erred by failing to inform him of the maximum penalty that could be imposed for first-degree murder.
Attempted Conviction Appeal
Whether a defendant’s guilty plea may be withdrawn is controlled by statute. K.S.A. 2010 Supp. 22-3210(d) provides:
“(1) A plea of guilty or nob 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.”
When a defendant has filed a motion to withdraw his or her plea in the district court, pursuant to K.S.A. 22-3210, we review the district court’s decision under an abuse of discretion standard. See State v. Harned, 281 Kan. 1023, Syl. ¶ 1, 135 P.3d 1169 (2006); State v. Muriithi, 273 Kan. 952, 955, 46 P.3d 1145 (2002); State v. Bey, 270 Kan. 544, Syl. ¶ 3, 17 P.3d 322 (2001).
But here Hall cannot proceed to evaluation under these standards. A defendant cannot take a direct appeal from a conviction flowing from a guilty plea. The right to take such a direct appeal is one of the rights surrendered, usually in both a written plea agreement and in open court when the plea is entered. See State v. Campbell, 273 Kan. 414, 424-25, 44 P.3d 349 (2002) (where defendant fully advised on right to appeal, an agreement to waive that right may be enforced). Hall attempts to avoid this bar by saying that he was not competent to enter his plea, but he should have first raised this argument before the district court in a motion to withdraw. Only if the district court rejected that motion could Hall appeal his conviction to this court. See State v. Williams, 37 Kan. App. 2d 404, 407, 153 P.3d 566, rev. denied 284 Kan. 951 (2007) (defendant may not file direct appeal from guilty plea unless defendant first files motion to withdraw plea and trial court denies motion). The reasoning behind this process on a competency issue is obvious. We simply are not equipped to decide competency in the first instance. Rather, the district judge was in the best position to judge competency at the time of Hall’s plea, having seen the defendant personally. The judge also would have had the opportunity to question Hall further at a later hearing on a motion to withdraw. Although we might functionally be better equipped to address Hall’s second argument for reversal of his conviction, i.e., that the district judge inadequately informed him at his plea hearing of the maximum penalty for first-degree murder because of the dispositive power of a transcript, this court still is not Hall’s first stop. His guilty plea without a subsequent motion to withdraw in the direct court deprives us of appellate jurisdiction.
Hall’s counsel on appeal does not appear to appreciate this point, although she demonstrates an understanding of the general procedural bar to consideration of an issue for the first time on appeal. She now argues that we should make an exception, at least on the competency issue, because consideration of Hall’s argument “is necessary to serve the ends of justice or to prevent denial of fundamental rights.” State v. Shopteese, 283 Kan. 331, 339, 153 P.3d 1208 (2007). At oral argument, she, for the first time, cited our decision in State v. Davis, 281 Kan. 169, 176, 130 P.3d 69 (2006), for the proposition that trying or sentencing an incompetent defendant violates due process. Davis also stands for the proposition that, if a defendant requests a competency determination pursuant to K.S.A. 22-3302(1), a court must suspend any further criminal proceedings until a competency hearing is conducted. 281 Kan. at 177.
Davis has no application here. At the time of Hall’s plea hearing, although Hough’s evaluation result was still pending and the district judge made a competency finding, there actually was no competency-to-stand-trial issue pending. Hough’s evaluation had been sought under K.S.A. 22-3219, authorizing the defense of lack of mental state to commit the crimes. Hall had not made his request for evaluation under K.S.A. 22-3302(1), which would have trig gered the requirement to suspend proceedings. Then, at his plea hearing, Hall surrendered any right he had to appeal his conviction without first attempting to withdraw his plea in the district court. As stated above, without such an effort, this court lacks jurisdiction to review the merits of Hall’s claim that he was incompetent to enter his plea. See Williams, 37 Kan. App. 2d at 407.
Hall’s appeal of his conviction must be dismissed for lack of jurisdiction.
Sentencing Appeal
Hall also now argues that he was incompetent to be sentenced on the first-degree murder. Again, this was not raised below. But our appellate consideration is not foreclosed by an absence of jurisdiction. A guilty plea does not surrender a defendant’s right to appeal a sentence. See State v. Patton, 287 Kan. 200, 226, 195 P.3d 753 (2008) (citing State v. Phinney, 280 Kan. 394, 398, 122 P.3d 356 [2005]) (defendant pleading guilty may still challenge sentence imposed in some circumstances). And first-degree murder is an off-grid crime unaffected by the statutory ban on appeals of presumptive sentences. See K.S.A. 21-4721(c)(l). Given Davis, identification of competency as a fundamental due process concern, we dispense with our purely prudential reluctance to reach an issue not presented in district court and move to the merits.
According to the record before us, as mentioned, Hough’s report of his evaluation did not reach the parties or the district judge before Hall pleaded guilty as charged. But it did reach all concerned before sentencing. And, even though Hough’s evaluation had been sought to support a mental disease or defect defense rather than a competency challenge, it addressed Hall’s competency. Hough concluded that, despite Hall’s substantial mental health deficiencies, Hall was competent and could assist in his defense. The transcript of Hall’s sentencing does not persuade us that the district judge should have concluded otherwise, particularly with no prompting from the defense.
Defendant Christopher Dwayne Hall’s appeal of his convictions is dismissed. His sentence is affirmed.
Bruce T. Gatterman, District Judge, assigned. | [
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The opinion of the court was delivered by
Kihgman, C. J.:
This is a proceeding in error to reverse a judgment by which Christian Berry and Magdalena Berry recovered of the plaintiffs in error $2,977 for loss sustained by reason of a fire which destroyed two buildings and a stock of groceries which the plaintiffs in error had insured as the property of the Berrys.
This court has repeatedly decided that where questions of fact are submitted to a jury with proper instructions and upon conflicting evidence, that we would not disturb the verdict because of a mere preponderance of evidence against it. We only look into the record to see if there was evidence to sustain the verdict, not to weigh it. Another principle has been often decided, and is here re-affirmed, and that is, where the court has once fairly given the law on a certain point to the jury, it is under no obligation to give it again because asked by one of the parties. These two principles settle most of the questions raised in this case.
It may be well enough to waste a few words in illustration of what has just been said. The counsel for plaintiff in error argued at length that the application for a policy of insurance “ being referred to in the policy as forming a part thereof, it becomes a part of the contract and warranty, and the answers made by the insured to the questions in the applications are warranties, and as much a part of the policy as though they had been written on the face of the policy, and if untrue avoid the policy.” In support of this proposition over a hundred authorities are referred to. On turning to the record we find that, at the request of the plaintiffs in error, the court instructed the jury as follows: “ That the representations in the applications for insurance, made in answer to the questions asked therein, are warranties, and if untrue avoid the policy.” This was one of the main grounds of controversy. The evidence was conflicting. The law was given to the jury as the plaintiffs in error asked. The jury then had the duty of weighing the evidence, passing upon the intelligence and truthfulness of the witnesses, and finally passing upon the issue submitted by their verdict. That duty we shall not wrest from them.
Again: The plaintiff in error asked fourteen instructions in various forms to the effect that if Magdalena Berry owned the property insured, and Christian Berry did not have any interest therein when the policies were issued, then each of the policies was void, and the plaintiffs could not recover; and the refusal to give each of these instructions is pressed in argument in this court as error that ought to cause a reversal of the judgment; and a multitude of authorities are are cited in support of the propriety of the instructions. On turning to the record we find this same
law was given to the jury twice; once in the instruction above quoted, (for the evidence shows that the Berrys represented themselves as joint owners of the property in the application for insurance,) and in that instruction the jury'were told that if these representations were untrue there could be no recovery on the policies. But the court at the request of plaintiff in error charged definitely as follows: “ That before the plaintiffs can recover they must show by the preponderance of evidence that at the time of making the applications for insurance the plaintiffs were joint owners of the property insured; and if the jury find they were not such joint owners, the plaintiffs cannot recover.” Having thus given the law on this point twice, the court was not bound to repeat it thirteen times more, for no reason that we can perceive, except that the ingenuity of counsel enabled them to state a simple proposition in so many different forms, and that they demanded of the court a recognition of that ingenuity. The court acted probably from a desire to assist the*jury rather than from a lack of appreciation; and our duty seems to require the same decision. On this point it may be remarked that the evidence seems to justify the verdict.
A specimen only has been given of the numerous errors alleged, of which we cannot take notice. Of those which demand attention are two: Certain papers containing the preliminary proofs of loss were offered in evidence r x by the plamtiii m error and rejected by the court. On an examination of the record we find that one set was rejected because the same papers were already in evidence, which if true was a sufficient reason for excluding them. It seems that the preliminary proofs were twice made out. The plaintiff in error offered one series which was excluded for the reason given above. Plaintiff in error then offered the other series which were rejected because the other party had long before demanded in writing copies of all papers intended to be used, and these papers had not been furnished, On these facts being made to appear to the district . ° ±1 court the court refused to allow them to be read in evidence. It is hardly necessary to say that the decision was correct: (Sec. 369, code.)
Another error alleged, is, that the court admitted testimony to vary or contradict the policy. The answer to that is, that there is no such testimony in the record. At the request of defendants in error the court instructed the jury, “ That the policies of insurance with the applications described in the Potion- in this action ar e prima fcode evidence of title, and of an insurable interest therein in the plaintiffs.” It was insisted that this instruction is incorrect. To see just how the jury were directed on this, it will be necessary to refer to a previous part of the charge of the court where the law was laid down to be, that possession was primeo facia evidence of title to property, but that this was open to be rebutted by other evidence in the case; that possession by one as agent raised no presumption of title in the agent; and that it was for the jury to say what the evidence showed as to the ownership of the property; that unless the evidence showed a joint ownership of the property there could be no recovery. This was a correct ruling on this point: Nichols v. Fayette Mutual Fire Ins. Co., 1 Allen 63; Fowler v. New York Indemnity Ins. Co., 23 Barb., 150. Possession and acts of ownership are always p/rima facie evidence of ownership of property.
The defendant (plaintiff in error) ashed a series of intsructions, twenty-nine in number, of which the court gave one and refused the others. Fourteen of these have been elsewhere noticed. Of the others many had been substantially given, such as the 6th and 14th, that the keeping of more than twenty-five pounds of gunpowder in the store violated the policy and prevented a recovery. The 4th, 9th, and 10th, in reference to false swearing, are not accurate statements of the law. The law in relation to that point had been correctly stated by the court. The 2d and 11th had already been given. The 3d and 18th are not law, as they are stated; and the same remark applies to the 24th and 28th. With a slight but material change they would have been correct. We may illustrate by a single observation as to the 2Ith: That, (as asked,) is as follows: “The defendant need not prove beyond a reasonable doubt that the fire was intentional on the part of the plaintiffs; and if the jury believe from the evidence tbat plaintiffs willfully, negligently, or carelessly allowed their property to he destroyed by fire, so as to procure the insurance thereon, or that any portion of the stock was removed before the fire, they must find for the defendant.” Now, the first part of this instruction may he law. The authorities differ about that. But clause is neither law nor common sense. If it is law, and a man insures a grocery store, he violates the policy if he carries away any part of his stock, no matter how small, or what the motive is. If the whole instruction is not correct in its entirety, the court had a right to reject it. The same is true of the 28th. If the proposition of law is correct, still it would not prevent a recovery for the stock of goods; and the instruction is faulty in saying that the jury must find for the defendant, thus including both policies. We do not propose to decide anything more than the court correctly refused the instruction. The 15th instruction is open to the same criticism. If the buildings had been sold by deed, it would not bave prevented a recovery on tbe policy for tbe goods destroyed. We do not intend to decide tbat the sale to the county of the property insured so far affected the title that a concealment of that fact in the application vitiated the policy. The instruction refused is so faulty that we cannot decide the question submitted.
It is urged that a new trial should be awarded because the verdict was for too much. It was certainly authorized by the evidence for the defendants in error. It was too Krge according to the testimony of the plaintiffs error_ The july bad all of this before them, and we see no reason to disturb tbeir finding. Tbe judgment is affirmed.
Yalentine, J., concurring.
Brewer, J., not sitting.
Said 28th. instruction asked by plaintiffs in error is as follows: “ 28-If tlie jury believe from tlie evidence tbat tbe building insured as and for a confectionery store, as expressly warranted in tbe application of the plaintiffs, was used for any other purpose without the consent of the Insurance Company, and such consent written on the policy, it is such a misrepresentation as avoids the policy, and they must find for the defendant.”
This (15th) instruction related to the sale of the lots for delinquent taxes, and their purchase by the county. See plaintiff’s brief, ante, p. 161. — Bepokter.] | [
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On December 5, 2008, this court suspended the petitioner, Russell B. Cranmer, from the practice of law in Kansas for a period of 6 months. See In re Cranmer, 287 Kan. 495, 196 P.3d 932 (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 8, 2011, Cranmer filed a petition for order of reinstatement. After careful consideration, this court grants Cranmer s petition and reinstates him to the practice of law in Kansas.
It Is Therefore Ordered that Cranmer 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 Russell B. Cranmer shall be published in the Kansas Reports. | [
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The opinion of the court was delivered by
Brewer, J.;
Only one question is presented in this case, and that involves a construction of these words in section one of Article 11 of the State Constitution: “All property wed! exclusively for state, county, municipal, literary, educational, scientific, religious, benevolent and charitable purposes * * * shall be exempt from taxation.” The plaintiff, as is admitted by the pleadings, is a literary and educational institution, incorporated under the laws of Kansas, and is the owner and in possession of a quarter-section of land adjacent to the city of Topeka, in the county of Shawnee. It is further admitted that such quarter-section is and always has been unimproved and unoccupied; that at present plaintiff occupies and uses ground and buildings in the city of Topeka for carrying on its work; that these are inadequate and insufficient for its uses, and that it has held such quarter-section ever since title was acquired for the sole purpose of erecting its permanent buildings thereon, and that it has always-been its intention and still is to use said land for purely educational purposes. Upon these facts plaintiff claims that this quarter-section is by virtue of the constitutional provision quoted exempt from taxation. With us this question is one purely of construction, and not of policy. Whether the rules in respect to exemptions fixed by the people in their organic instrument, or established by their representatives in legislature assembled, be wise or unwise, is not for us to inquire. Ita lex scripta est, concludes us.
All property receives protection from the State. Every man is secured in the enjoyments of his own, no matter to what use he devotes it. This security and protection carry with them the corresponding obligation to support. It is an obligation which rests equally upon all. It may require military service in time of war, or civil service in time of peace. It always requires pecuniary support. This is taxation. The obligation to pay taxes is co-estensive with the protection received. An exemption from taxation is a release from this obligation. It is the receiving of protection without contributing to the sup port of tlie authority which protects. It is an exception to a rule, and is justified and upheld upon the theory of peculiar benefits received by the State from the property exempted. Nevertheless, it is an exception; and they who claim under an exception must show themselves within its terms. Appyling these general considerations to the question before us, let us see whither they will lead us. To bring this property within the terms of the section quoted it must be “ used exclusively for literary and educational purposes.5 5 This involves three things, first, that the property is used; second, that it is used for educational purposes; and third, that it is used for no other purpose. Now what facts are alleged from which it is claimed this use can be inferred? Simply two — first, ownership, and second, an intention to occupy as a permanent site. But neither of these tends to show an actual use. An intention to occupy is not equivalent to occupation, does not tend to prove it. The pleadings recognize the difference, for they admit the failure while they allege the intention to occupy. An occupation which is to be — though here it is only which may be — is no present use. Nor is ownership evidence of use. Eull possession and perfect title are consistent with total failure to use. This is too plain to need either argument or illustration. If the framers of the constitution had intended to exempt all property belonging to literary and charitable institutions from taxation, the language employed would have been very different. They would have used the simple, ordinary language for expressing such intention. The fact that they ignored “ ownership,55 and made “use55 the test of exemption, shows clearly that they recognized the essential distinction between the two, and established the latter rather than the,former as the basis of exemption. The argument pressed with great force by counsel for plaintiff that this construction operates harshly upon infant institutions of charity and learning, which must first secure a site before obtaining means to erect buildings upon it, and that thus the “ poverty of the institution is made a ground of imposing heavier burdens, while its enhancing wealth gives it not only greater power and usefulness, but absolutely greater immunities,” is an argument to be addressed to the people wbo have the power to increase exemptions if deemed wise in favor of such institutions. But the same construction of this constitutional provision which would exempt the property of the infant and feeble would also exempt the property of the older and wealthy and strong institutions. It would be virtually granting immunity from taxation to all institutions within this stp,te, organized for the accomplishment of the purposes named in that section, no matter what amount of property they might amass; for all their property they would hold with a view, at some time and in some form, to use in accomplishing the purposes of their organization. This may seem fraught with little peril in a young state; but the history of older communities shows the danger of the accumulation of large amounts of untaxed property by even religious organizations. But it is said that “ the intention was to exempt from taxation all property, real or personal, productive or non-productive, in use, or to be hereafter used, that is fairly held for the add of such educational institutions.” In other words, because the possession of certain property aids an educational institution, therefore it is used for educational purposes. This is but a stronger way of stating the proposition that ownership is the test of exemption; for the possession of property always inures to the benefit of an institution, always aids it. It gives it credit, inspires confidence, and attracts other property. It gives to it, as to an individual, larger possibilities. Yet this is but an incident to a result of the ownership. And this, as we have seen, was ignored as a rule of exemption; and that which was established was the present and exclusive use for certain designated purposes. The judgment of the district court is affirmed.
All the Justices concurring. | [
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|
The opinion of the court was delivered by
Johnson, J.:
Dennis W. Hall appeals the district court’s denial of his petition for an injunction to restrain his creditor, Ford Motor Credit Company LLC (Ford Credit), from proceeding with a post-bankruptcy repossession of the vehicle upon which Ford Credit retained a hen. Hall contends that the district court erred in finding that Hall’s filing of a Chapter 7 bankruptcy petition, by itself, constitutes a default under the security agreement that can be enforced by the creditor under the Kansas Uniform Consumer Credit Code (UCCC) provision contained in K.S.A. 16a-5-109(2). We find that the district court considered other facts, in addition to Hall’s bankruptcy filing, and that all of the factors present in this case supported the district court’s holding that the prospect of payment, performance, or realization of collateral had been significantly impaired. Accordingly, we affirm.
Factual and Procedural Overview
On December 28, 2006, Dennis W. Hall bought a 2006 Ford F-150 pick-up truck (truck) from Long McArthur Ford in Hall’s hometown of Salina, Kansas. Hall financed the purchase price through a note and security agreement contract (contract) that was subsequently assigned to Ford Credit. Under the contract, Hall committed to pay $27,964, plus 1.9% interest, in 72 monthly installments of $438.17, with the first payment due February 11, 2007. Hall’s other contractual obligations included a requirement that he keep the truck in good condition and a requirement that he maintain physical damage insurance on the truck that would cover the remaining balance on the note (gap insurance). Through the contract, Ford Credit obtained a security interest in the truck.
Some 9 months after purchasing the truck, on September 30, 2007, Hall and his wife filed a voluntary petition under Chapter 7 of the United States Bankruptcy Code. In the bankruptcy documents, Hall claimed the truck as exempt property, identified Ford Credit as a secured creditor which was owed $27,549, and listed the truck’s value at $20,000, i.e., Ford Credit was undercollaterized by $7,549.
In October 2007, Hall moved to Kearney, Missouri. That same month, Ford Credit sent a letter to Hall’s attorney requesting a reaffirmation agreement whereby Hall’s personal contractual obligations to Ford Credit would not be discharged in the bankruptcy. Ford Credit opined that Hall’s voluntary bankruptcy filing constituted a default under the security agreement and that if Hall did not reaffirm the debt, Ford Credit would suffer a “significant impairment of the prospect of payment, performance or realization of the collateral under K.S.A. 16a-5-109(2).” Ford Credit sent two more similar letters to Hall’s attorney in November. Hall concedes that he received the letters, but he declined to execute a reaffirmation agreement.
On January 15, 2008, Hall obtained a discharge in bankruptcy, effectively terminating his personal liability to Ford Credit on the note and contract. However, Ford Credit retained its lien on the truck.
After discharge, Hall continued to make the required monthly payments. He claims in this proceeding that he also continued to maintain the required insurance and to keep the truck in good condition. Despite the continued payments, Ford Credit attempted to repossess the truck.
In response, Hall filed a petition in Saline County District Court alleging violations of the Kansas Consumer Protection Act and requesting an order preventing Ford Credit from attempting to repossess the truck. In a July 2008 amendment to the petition, Hall added a claim that Ford Credit was in violation of the UCCC provision in K.S.A. 16a-5-109. Ford Credit filed answers and counterclaims to those claims, denying that Hall was entitled to relief and seeking a determination that Hall was in actual default under both the terms of the contract and under the UCCC.
The matter was tried to the court on June 26, 2009. On August 3, 2009, the district court made its ruling on the record, and on October 27,2009, the court filed a Journal Entay in which it denied Hall’s claim for declaratory judgment and injunctive relief and which granted Ford Credit declaratory judgment “on its claim that under the facts of this case, [Hall] is in default under the terms of the retail installment contract and the Kansas Uniform Consumer Credit Code.” The court also granted judgment in favor of Ford Credit on Hall’s consumer protection claim. With respect to the UCCC claim, the Journal Entry included the following recitations:
“7. Factors that demonstrate significant impairment in the present case include (a) Plaintiff s filing of a Chapter 7 petition for bankruptcy; (b) the discharge in bankruptcy of Plaintiff s debt and other duties and obligations owed to Defendant under the Contract; (c) Plaintiff s refusal to reaffirm his personal obligations under the Contract which would have cured the prospective default occurring as a result of the bankruptcy discharge; and (d) the fair market value of the Pickup being less than the debt it secures.
“8. Based upon these factors, Defendant has met its burden of showing by a preponderance of the evidence that even though the payments on the Contract are current, the prospect of payment, performance, or realization of collateral is significantly impaired, thereby rendering Plaintiff in default under subsection (2) of K.S.A. 16a-5-109.”
Hall timely appealed to the Court of Appeals. We granted the parties’ joint motion to transfer the appeal to this court.
Enforceable Default
Hall does not contest that his filing of a bankruptcy petition constituted a default under the specific provisions of the contract, which included the following default provision:
“I. Default: You will be in default if:
1. You do not malee a payment when it is due; or
2. You gave false or misleading information on your credit application relating to this contract; or
3. Your vehicle is seized by any local, state, or federal authority and is not promptly and unconditionally returned to you; or
4. You file a bankruptcy petition or one is filed against you; or
5. You do not keep any other promise in this contract.
“If you do not cure the default where allowed by law, Creditor can exercise Creditor’s rights under this contract and Creditor’s other rights under the law.” (Emphasis added.)
However, under this State’s version of the UCCC, not all contractual default provisions are enforceable. The UCCC’s default constraint is contained in K.S.A. 16a-5-109, which provides:
“An agreement of the parties to a consumer credit transaction with respect to default on the part of the consumer is enforceable only to the extent that
(1) the consumer fails to make a payment as required by agreement; or
(2) the prospect of payment, performance, or realization of collateral is significantly impaired; the burden of establishing the prospect of significant impairment is on the creditor.”
The official comment to the provision explains the reason for limiting contractual default provisions and describes the two circumstances which might constitute default on an installment obligation:
“1. One of the vital terms of every consumer credit agreement is that which sets forth the criteria which will constitute default. By its nature ‘default’ is not a term that is negotiated by the parties — it is generally controlled by the creditor. It is appropriate, therefore, that its content and implications be confined by the law so as to prevent abuse. This section is intended to accomplish that.
“2. This section recognizes that there are two entirely distinct sets of circumstances which might constitute default on an installment obligation. The first and most common is the failure to pay an installment as required. A default of this type is susceptible of being cured by the consumer without impairing a continuing contractual relationship between the consumer and the creditor. See K.S.A. 16a-5-110. The second type of default relates to behavior of the consumer which endangers the prospect of a continuing relationship. It may be insolvency, illegal activity, or an impending removal of assets from the jurisdiction. There must, however, be circumstances present which significantly impair the relationship. . . . The burden of proof is on the creditor to justify action on a claim of default of this type.” (Emphasis added.) K.S.A. 16a-5-109 (comment).
Ford Credit did not claim that Hall failed to pay a required installment. Therefore, to enforce the contractual default provision, Ford Credit had to establish that it fit within the significant impairment provision of K.S.A. 16a-5-109(2). Hall contends that Ford Credit did not carry that burden.
Standard of Review
This court has previously declared that “[wjhether an impairment is significant under K.S.A. 16a-5-109(2) is a question of fact,” and when a district court determines that a creditor has met its burden to prove that such a significant impairment exists, this court reviews that decision for substantial competent evidence to support the district court’s determination. Johnson County Auto Credit, Inc. v. Green, 277 Kan. 148, 153-54, 83 P.3d 152 (2004).
Perhaps an argument could be made that the determination of whether the facts of a particular case meet the statutory requirement for enforceability of a default provision is a question of law. However, the parties do not make that argument. Accordingly, we will apply the previously approved substantial competent evidence standard of review in this case.
Analysis
Hall’s overarching argument is that Ford Credit’s collateral position was not appreciably changed by the bankruptcy proceedings. In support, he relies in part on cases interpreting the bankruptcy code, quoting extensively from In re Brock, 23 Bankr. 998 (Bankr. D. D.C. 1982); Lowry Federal Credit Union v. West, 882 F.2d 1543, 1547 (10th Cir. 1989); and In re Rowe, 342 Bankr. 341 (Bankr. D. Kan. 2006).
Hall acknowledges that those cases are not binding upon this court but suggests they should persuade us that his bankruptcy filing does not justify Ford Credit’s repossession of the truck while Hall is continuing to fully perform under the contract. As Ford Credit points out, Hall overlooks the rather significant factual distinction that in Lowry and Rowe the creditor did not establish that the value of the vehicle was considerably less than the remaining balance on the loan, as is the case here. Lowry, 882 F.2d at 1546 (no evidence that truck would depreciate more rapidly than the note’s outstanding balance would be reduced); Rowe, 343 Bankr. at 350 (“there is no evidence that the secured party is not adequately secured”).
Moreover, the developing bankruptcy law does not advance Hall’s argument that we should ignore or minimize the fact that he refused to reaffirm his debt in the bankruptcy proceeding. When a debtor files a Chapter 7 bankruptcy and possesses a vehicle which is securing a purchase money loan, the bankruptcy code provides the debtor with three options: (1) relinquish possession of the vehicle; (2) redeem the vehicle by paying off the loan; or (3) reaffirm the debt and remain personally liable to the creditor following the discharge in bankruptcy. See 342 Bankr. at 344. As explained in In re Rowe, Lowry “sanctioned the use of the ‘fourth option’ whereby a Debtor who at the time of filing was current on a debt secured by personal property could retain the property without either redeeming or reaffirming the debt.” 342 Bankr. at 344. However, subsequent to the Rrock and Lowry decisions, the bankruptcy code was amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), which effectively eliminated the “fourth option.” “BAPCPA now provides consequences for failure to redeem or reaffirm when a debtor is current on payments. They are termination of the stay and removal of the collateral from property of the estate, with the creditor’s remedies upon expiration of the stay being those provided by state law.” 342 Bankr. at 351. The fact that the bankruptcy code has strengthened the sanction for failing to comply with the mandate that the debtor redeem or reaffirm the debt in order to retain possession of the collateral counsels against ignoring the debtor’s refusal to reaffirm the debt when considering whether the prospect of payment, performance, or realization of collateral is significantly impaired.
What the current bankruptcy code makes crystal clear is that the question of whether Ford Credit can repossess Hall’s truck, following the lifting of the federal bankruptcy court’s stay because of Hall’s failure to relinquish, redeem, or reaffirm, is governed by Kansas law. This court is the final arbiter of that question, not withstanding any predictions which may have been set forth in In re Rowe as to how Kansas courts would apply our version of the UCCC. See 342 Bankr. at 350 (“The parties agree that it is not likely that a Kansas court would find ‘significant impairment’ under the circumstances of this case where Debtors are current on their payments, have stated their intent to remain current notwithstanding the filing of the bankruptcy proceeding, and there is no evidence that the secured party is not adequately secured.”). In that context, both parties cite to the same three cases: Green, 277 Kan. 148; Prairie State Bank v. Hoefgen, 245 Kan. 236, 777 P.2d 811 (1989); Medling v. Wecoe Credit Union, 234 Kan. 852, 678 P.2d 1115 (1984).
In Medling, the district court permitted the repossession of a secured vehicle upon which payments were current, based principally upon the debtor’s false or inconsistent statements to the creditor and the debtor’s failure to meet with the creditor after agreeing to do so. This court found substantial competent evidence to support the district court’s finding of default “on the basis [that] the prospect of payment, performance, or realization of the collateral was significantly impaired.” 234 Kan. at 858-59. The lesson to be gleaned from Medling is that a significant impairment under K.S.A. 16a-5-109(2) may be created by a debtor’s actions and in-actions which endanger the prospect of a continuing relationship with the creditor, even though the debtor may be current on the note payments.
In Hoefgen, the district court permitted the repossession of a floral business. In affirming that decision, this court cited to 13 factors that affected the substantial impairment of collateral analysis. Although the opinion referred to the “ ‘spectre of bankruptcy,’ ” the reference was in the context of the creditor being undercollateralized, i.e., where the value of the collateral was less than the indebtedness. 245 Kan. at 246. The case certainly does not support the notion that a debtor’s filing of bankruptcy automatically creates a substantial impairment of collateral within the meaning of K.S.A. 16a-5-109(2).
In Green, this court again affirmed the district court’s ruling on a prebankruptcy repossession. However, in that case the district court had found that the creditor s repossession of the vehicle violated K.S.A. 16a-5-109. This court noted that a substantial competent evidence standard of review had been applied in Medling and Hoefgen, but that the district court in the Green case had made the negative finding that the creditor had failed to meet its burden of proving a significant impairment, which would carry an even less stringent standard of review. 277 Kan. at 153-54. Nevertheless, the Green court found that under either “deferential standard of review,” the district court’s determination that Auto Credit’s repossession violated K.S.A. 16a-5-109 could be affirmed. 277 Kan. at 159.
Highly summarized, the facts in Green involved the Greens purchasing and financing a vehicle from Auto Credit, agreeing as part of the contract to keep the vehicle insured. The Greens apparently began to struggle with meeting their contract obligations. Auto Credit received notice from the insurance company that the debtor’s coverage was to be cancelled for nonpayment of premiums. Shortly thereafter, Auto Credit entered into an extension agreement with the Greens which provided for the payment of past due interest and an extension of time to make the next installment payment. However, the extension agreement did not address the insurance issue. A little over a month later, the Greens failed to make a timely payment and Mrs. Green sent Auto Credit a handwritten note, explaining that the Greens’ “ ‘financial situation is falling fast,’ ” and that the Greens had an appointment “ ‘concerning these issues.’ ” 277 Kan. at 150. Auto Credit apparently construed the note as an indication the Greens were going to file for bankruptcy and proceeded to repossess the vehicle.
Much of the discussion in Green focused on whether the debtors’ failure to maintain insurance significantly impaired Auto Credit’s collateral. The opinion noted that the district court had found that “after Auto Credit learned of the insurance problem, it executed an extension agreement and accepted five payments under the agreement.” 277 Kan. at 159. The apparent suggestion is that Auto Credit must not have viewed the insurance cancellation as a collateral-impairing event, because it took no action to enforce that provision after learning of the default. Perhaps another way to view those circumstances is that, by entering into the extension agreement, the creditor modified the original contract and waived the debtor s obligation to maintain insurance, so that the debtor’s failure to have insurance was no longer a contractual default. Nevertheless, Green accepted the district court’s assessment of the insurance cancellation, along with its findings “that the Greens had not concealed themselves or the collateral, that the collateral was not in physical jeopardy, that the Greens remained communicative with Auto Credit, and that the note from Ronda Green expressed no intent to pursue bankruptcy.” 277 Kan. at 159.
Perhaps most significant to our present task, Green observed “that this court has reviewed a variety of factors considered by the district court to determine whether significant impairment existed. The factors in each case will vary, and we have not set out a comprehensive list.” 277 Kan. at 157. The factors in this case do vary from those in our prior cases, with the most obvious difference being that, here, the debtor sought and obtained Chapter 7 bankruptcy protection.
In finding that Hall had defaulted under the contract by filing a bankruptcy petition, the district court made comments intimating that the mere filing of a bankruptcy petition might be sufficient to establish the requisite significant impairment under K.S.A. 16a-5-109(2). We disagree with that suggestion and reject the notion that the debtor’s filing of a bankruptcy petition establishes, as a matter of law, that the prospect of payment, performance, or realization of collateral is significantly impaired. Circumstances might exist at the time of filing which would indicate that the debtor’s continued performance under the installment contract is more likely than not.
Moreover, when the petition is filed, the possibility exists that debtor might choose to follow the bankruptcy code and perform one of the three permissible options with respect to secured personal property, i.e., relinquish, redeem, or reaffirm. If the debtor relinquishes possession of the vehicle or redeems it by paying off the debt, the question of the continuing relationship between debtor and creditor is no longer an issue. If the debtor reaffirms the debt, the creditor’s position has been unaffected by the bank ruptcy filing. In short, the creditor must show more than the filing of a bankruptcy petition.
In this case, there were more factors shown and relied upon by the district court. Specifically, Hall did not respond to Ford Credit’s request for a reaffirmation of the debt in the bankruptcy proceedings. Instead, he proceeded to obtain a discharge of his personal liability on the note which carried an outstanding balance substantially in excess of the value of the collateral securing the note. After his bankruptcy discharge, Hall retained the possession, control, and enjoyment of the collateral, but Ford Credit was enjoined from contacting Hall about paying that portion of the debt which exceeded the value of the truck. See 11 U.S.C. § 524(a)(2) (2006) (discharge operates as an injunction against an act to collect, recover, or offset any discharged debt as a personal liability of the debtor).
Hall argues that Ford Credit’s fears of significant impairment are only anticipatory in nature. He points to the fact that, since his discharge, he has performed all of his contractual obligations, and, at trial, he testified under oath that he intends to continue to faithfully perform under the contract. However, as noted, the bankruptcy code mandates a procedure for a debtor who wants to keep the secured personal property and continue to faithfully perform under the security agreement, i.e., the debtor can reaffirm the debt. Hall does not explain why his current self-serving statement of intent should trump his refusal to formalize his commitment to full contract performance through a reaffirmation of the debt. Under Hall’s “trust-what-I-say-today” method of reaffirmation, Ford Credit must accept the additional risk that Hall might change his mind at any time and unilaterally decide to terminate any part or all of his contract performance. Hall, on the other hand, has been relieved of all personal liability and is subject to no additional sanction for failing to fulfill his precatory assurance of performance.
If Hall chooses to terminate performance, Ford Credit will be left to salvage whatever it can from the truck in whatever condition it might be at the time. In that vein, the truck’s value in relation to the remaining balance on the contract is an important factor. A creditor would be justified in believing that a debtor would ordi narily not gratuitously pay more for a vehicle than it is worth. Accordingly, the prospect of debtor’s continued performance would be significantly impaired as a matter of economic reality where the note is substantially undercollaterized.
Hall contends that Ford Credit “is in no worse position than it occupied before the bankruptcy,” arguing that, so long as he continues to pay as he promised to do, the value of the collateral compared to the debt amount is irrelevant. That argument misses the point. Obviously, the creditor is made whole if the contract is completed. The focus is on the prospects that Hall will, in fact, continue to pay as promised to the completion date and if he does not, whether the collateral is likely to have been impaired.
Moreover, before bankruptcy, Ford Credit held an installment purchase note upon which debtor was personally hable. The debtor’s discharge without a reaffirmation of personal liability has effectively transformed the installment purchase contract into a month-to-month lease, unilaterally terminable at will by the debtor. One would be hard-pressed to argue that Ford Credit’s position has not worsened.
Hall also suggests that his situation is indistinguishable from the circumstance where the creditor repossesses a vehicle that is valued at less than the debt amount, and the debtor responds by filing bankruptcy to discharge the amount of deficiency on the note. The analogy is faulty. As described above, Hall’s utilization of the now-defunct “fourth option” is akin to a nonbinding reaffirmation of the contract. In contrast, the prebankruptcy repossession followed by a discharge of the note deficiency effects the same result as if Hall had elected the relinquishment option in his bankruptcy proceeding. The debtor no longer has possession and control over the vehicle or the benefit of its use, whereas the creditor has liquidated the amount of its loss and avoided the risk that the gap between vehicle value and debt amount will widen. Likewise, the creditor realizes the value of its collateral immediately, rather than looking in the mailbox each month to see whether the debtor has chosen to make that month’s payment.
A final factor discussed by the district court, but not specifically listed in the journal entry, is the impact upon the creditor/debtor relationship caused by the discharge injunction of 11 U.S.C. § 524(a)(2). Ford Credit argues that the injunction cut off its ability to communicate with Hall and thereby impaired its ability to monitor whether Hall was performing all of his obligations with regard to the collateral. Hall counters with two arguments. First, he contends that Ford Credit is not precluded from communicating with his counsel. However, when a business relationship has devolved to the point that the parties to the contract are only able to communicate through attorneys, one would have to concede that the prospect of a continuing relationship has been endangered to some extent.
Next, Hall takes exception to Ford Credit’s characterization of the injunction as foreclosing all communications, correctly pointing out that 11 U.S.C. § 524(a)(2) speaks only about an act to collect a discharged debt as a personal liability of the debtor. Accordingly, Hall contends that Ford Credit can still communicate with him on matters relating to the property on which it maintains a Men. While that distinction may be valid, the situation creates a considerable risk for the creditor that any communication with the debtor might be construed as relating to the debtor’s personal liability, especially where the note is undercollateralized. Obviously, the discharge injunction imposes a constraint on the continuing relationship between debtor and creditor.
Considering all of the factors present in this case, we hold that there was substantial competent evidence to support the district court’s determination that the prospect of payment, performance, or realization of collateral was significantly impaired so that Hall’s default was enforceable under K.S.A. 16a-5-109(2).
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The opinion of the court was delivered by
Nuss, C.J.;
This case arises out of the district court’s summary denial of Eric Neal’s motion to correct an illegal sentence under K.S.A. 22-3504 based upon his claims of an incorrect criminal history score. After the Court of Appeals affirmed, we granted Neal’s petition for review; our jurisdiction is under K.S.A. 20-3018(b).
We hold the district court erred in denying Neal’s 22-3504 motion without conducting an evidentiary hearing. Consequently, we reverse the decisions of the Court of Appeals and district court and remand to the district court for an evidentiary hearing.
Facts
Neal was convicted in two separate cases in December 2000 of second-degree murder, aggravated battery, aggravated assault, endangering a child, and criminal possession of a firearm. At Neal’s sentencing hearing, his counsel expressed concern that the presentence investigation (PSI) report showed his criminal history score to be worse than what she and the prosecutor had discussed. The district court granted Neal a 20-day stay to further investigate his criminal history. Nothing in the record on appeal, however, indicates that Neal lodged a formal objection to his criminal history, further challenged lús PSI score, or that his history was later changed.
According to Neal’s PSI, three municipal person misdemeanor convictions were aggregated pursuant to K.S.A. 21-4711(a) to form a single person felony for purposes of calculating his criminal history: his 1987 battery conviction, his 1988 battery conviction, and his 1998 conviction for violating a protective order. At the conclusion of his sentencing hearing, the State proffered certified copies of the disposition sheets/joumal entries of two of these convictions. In accordance with that aggregation and resultant criminal history, Neal was eventually sentenced to 618 months for the murder conviction and to total incarceration of 653 months for all convictions.
Neal appealed, claiming an error in his criminal history score but not on the basis of the misdemeanors’ aggregation. His convictions and sentences were affirmed by the Court of Appeals in State v. Neal, No. 86,756, unpublished opinion filed November 22, 2002.
In August 2007, approximately 7 years after his convictions, Neal filed a 28-page pro se motion to correct an illegal sentence pursuant to K.S.A. 22-3504. He swore its contents were true and his “signature of affiant” was notarized. Of relevance to the present appeal, he generally contended the district court erred in aggregating the municipal misdemeanor convictions into one person felony. More specifically, he argued his 1987 and 1988 battery convictions resulted in suspended jail sentences and were uncounseled, rendering them constitutionally invalid. He claimed that he “was never advised [of], nor did he waive[], his rights to counsel.”
Neal contended that because of this district court aggregation error, the court erred in computing his criminal histoiy and then in sentencing him with enhancements based upon that erroneous history. According to Neal, correcting this error would reduce the severity of his criminal history — from B to C — -and correspondingly reduce his sentence to 258-285 months. Included in his motion’s attachments were the disposition sheets from his 1987 and 1988 municipal misdemeanor convictions.
Without disputing Neal’s factual allegations, the State essentially responded that his motion to correct an illegal sentence should simply be denied as a matter of law. Without conducting an evidentiary hearing, the district court dismissed Neal’s motion on the grounds asserted by the State. First, the court held that the motion was procedurally barred because Neal had already challenged his criminal history on direct appeal, and he had full opportunity there to raise all issues attacking his convictions and sentence. Second, the court held that Neal received a legal sentence, i.e., it was imposed in conformity with the appropriate statutory provisions and was not ambiguous in either the time or manner in which it was to be served. The court did not address Neal’s argument that the suspended jail sentences entitled him to counsel which was never provided nor waived.
The Court of Appeals concluded Neal’s motion was procedurally barred as he was improperly using it as a substitute for a second appeal. State v. Neal, No. 100,366, 2009 WL 1140329 (2009) (unpublished opinion).
The Court of Appeals panel also concluded that even if it addressed the merits, Neal’s motion still failed. Citing State v. Delacruz, 258 Kan. 129, 899 P.2d 1042 (1995), the panel observed that an uncounseled misdemeanor conviction that does not result in incarceration may be included in a defendant’ criminal history score, even though it has the effect of enhancing the sentence under the Kansas Sentencing Guidelines Act. Citing State v. Allen, 28 Kan. App. 2d 784, 20 P.3d 747 (2001), it further observed that a defendant’s right to counsel for a misdemeanor charge did not vest until actual imprisonment, i.e., the right is not triggered if the defendant receives a conditionally suspended sentence or probation. The panel additionally observed that neither Neal’s 1987 nor 1988 convictions resulted in actual imprisonment; he was merely fined and given probation. It therefore concluded these convictions never triggered Neal’s right to counsel.
The panel noted as an alternate basis for its holding that, should a record indicate that a misdemeanor conviction did result in jail time, it must then be shown that the defendant was either represented by counsel or that the State has proven, by a preponderance of the evidence, that defendant waived counsel before such a conviction can be included in the criminal history. 2009 WL 1140329, at *3 (citing Allen, 28 Kan. App. 2d at 788). The panel opined that the disposition sheets in both the 1987 and 1988 battery convictions “reflect[] a waiver of counsel and indicate!] that ‘[defendant has been advised of his constitutional rights and enhancements.’ ” 2009 WL 1140329, at **3. Overall, because of the absence of Neal’s incarceration, and the presence of his constitutional rights advisory and waiver, the panel held his misdemeanor convictions were ripe for aggregation under K.S.A. 21-4711.
Additional facts will be added as necessary to our analysis.
Analysis
Issue: The district court erred in summarily denying Neal’s motion to correct an illegal sentence.
Standard of Review
The filing of a motion to correct an illegal sentence under K.S.A. 22-3504 does not automatically require the district court to conduct a full evidentiary hearing. See State v. Pennington, 288 Kan. 599, 601, 205 P.3d 741 (2009). The district court first conducts a preliminary examination of the motion. Based upon that examination, the motion can be denied “ ‘without a hearing or appointment of counsel if the district court determines the motion, files, and records of the case conclusively show the defendant is not entitled to relief.’ ” State v. Howard, 287 Kan. 686, 690, 198 P.3d 146 (2008) (quoting State v. Hoge, 283 Kan. 219, 224, 150 P.3d 905 [2007]).
When, as here, the district court summarily denies a motion under K.S.A. 22-3504, our standard of review is de novo “because appellate courts have the same access to the motion, records, and files as the district court.” Howard, 287 Kan. at 690-91. Like the district court, we must determine whether Neal’s motion, records, and files conclusively show that he is entitled to no relief. See Pennington, 288 Kan. at 601.
Discussion
Neal’s motion is not procedurally barred
As a threshold matter, both the district court and the Court of Appeals essentially concluded that Neal’s motion was procedurally barred because he was improperly using the motion as a substitute for a second appeal and his argument regarding incorrect aggregation of crimes should have been raised in the initial, direct appeal. We agree with Neal that it is not barred.
We first acknowledge that our general rule requires a defendant to raise all available issues on direct appeal. See State v. Neer, 247 Kan. 137, Syl. ¶ 1, 795 P.2d 362 (1990). Pursuant to K.S.A. 22-3504(1), however, a court “may correct an illegal sentence at any time.” See State v. Flores, 283 Kan. 380, 153 P.3d 506 (2007). Consequently, we must initially determine whether this statute actually supplies Neal with the exception to our general rule expressed in Neer. See Pennington, 288 Kan. at 601.
We have held that K.S.A. 22-3504 only pertains to illegal sentences. Pennington, 288 Kan. at 601. Determining whether a sentence is illegal is a question of law over which this court has unlimited review. We have defined an illegal sentence as one “imposed by a court without jurisdiction, a sentence which does not conform to the statutory provision, either in character or the term of the punishment authorized, or a sentence which is ambiguous with regard to the time and manner in which it is to be served.” (Emphasis added.) State v. LaBelle, 290 Kan. 529, 532, 231 P.3d 1065 (2010) (quoting State v. Deal, 286 Kan. 528, Syl. ¶ 1, 186 P.3d 735 [2008]). Consequently, to the extent Neal’s challenge to his criminal history requires a determination of whether his sentence is illegal within the meaning of K.S.A. 22-3504, we exercise unlimited review. Hoge, 283 Kan. at 225.
Neal contends that the district court erred in calculating his criminal history score because it erred in aggregating his underlying misdemeanor convictions and the result of these errors was an illegal sentence. In our analysis, we observe that the sentencing guidelines for criminal defendants are generally based upon two factors: the crime severity ranking of the current crime of convic tion and the criminal history classification of the defendant. See K.S.A. 21-4703(1); K.S.A. 21-4704(c). Because of this statutory formula, the Court of Appeals has held that if either the crime severity level or the criminal history score is in error, a party can challenge a sentence as being illegal. See State v. Russell, 36 Kan. App. 2d 396, 399, 138 P.3d 1289 (2006); State v. Donaldson, 35 Kan. App. 2d 540, 541-542, 133 P.3d 154 (2006); State v. Lakey, 22 Kan. App. 2d 585, 586, 920 P.2d 470 (1996).
Here, Neal’s challenge to his criminal history score is necessarily a challenge to his sentence that the history score helped produce. If the history score is incorrect, it follows that his resulting sentence cannot conform with the statutory provision in the term of the punishment authorized (State v. LaBelle, 290 Kan. at 532), and, consequently, is an illegal sentence. Accordingly, K.S.A. 22-3504 is the proper vehicle for his claim. See, e.g., Lakey, 22 Kan. App. 2d at 586.
Because we have determined that Neal’s argument fits within the parameters of an illegal sentence, we can also readily conclude that his motion to correct an illegal sentence was timely filed. See State v. Flores, 283 Kan. 380. In Flores, we concluded that under the plain language of K.S.A. 22-3504(1), a motion to correct an illegal sentence may be raised at any time. Consequently, it is not subject to the same time constraints as a K.S.A. 60-1507 motion. Neal did not raise the issue of improper aggregation in his direct appeal; but we also held in Flores that the motion to correct illegal sentence is not subject to our general rule that a defendant must raise all available issues on direct appeal.
As a result, Neal’s argument is not procedurally barred. We have jurisdiction to consider it.
Neal’s motion raises substantial issues of fact and law
The State contends that Neal’s motion does not present substantial issues of fact or law. Consistent with the Court of Appeals holding, it argues that Neal’s 1987 and 1988 misdemeanor convictions did not result in “actual imprisonment,” but rather probation, and therefore he was not entitled to counsel. See State v. Delacruz, 258 Kan. 129, 132, 899 P.2d 1042 (1995). Accordingly, it argues that any uncounseled misdemeanor convictions are constitutionally valid and may be used in determining criminal history even for enhancement purposes. See 258 Kan. at 132.
Neal contends that the Court of Appeals erred in holding that actual imprisonment is the trigger to the right to counsel in misdemeanor charges. In support, he provided a Rule 6.09 letter before oral arguments were held in this court and cited our opinion issued approximately 1 week after the Court of Appeals decision: State v. Youngblood, 288 Kan. 659, 206 P.3d 518 (2009).
In the State’s alternative to arguing Neal was not entitled to counsel because he had not been incarcerated, it contends that he actually received counsel in the 1987 case. It points out that the disposition sheet/joumal entry provides Neal was represented by “P. Journey CPD.” As for the 1988 case, the State remains consistent with the Court of Appeals holding and argues the 1988 record reflects Neal waived his right to counsel. As support, it observes that the disposition sheet/journal entry is stamped “Defendant has been advised of his constitutional rights and enhancements.” The State further notes the stamp is followed by a handwritten notation that states “waiver 4-4-88 HEF.” It concededly “presumes” that “the initials are those of the presiding judge, Harold E. Flaigle, as his signature appears at the bottom of the document.”
Citing as evidence his “sworn to” motion to correct illegal sentence, Neal contends he was never advised of his right to counsel in either of the cases nor did he ever waive it. Consequently, he argues there are issues requiring review by the district court which demand reversal and remand.
We begin our analysis by acknowledging the Court of Appeals was correct in expressing one of the principal holdings of State v. Delacruz, 258 Kan. 129, regarding the use of uncounseled misdemeanors. More specifically, Delacruz held that an uncounseled misdemeanor conviction is constitutionally valid if the offender is not incarcerated; the conviction then may be included in a defendant’s criminal history score, even though it has the effect of enhancing the sentence under the Kansas Sentencing Guidelines Act. 258 Kan. at 136,139. As the panel pointed out, this is because a defendant’s right to counsel for a misdemeanor charge did not vest until actual imprisonment; accordingly, the right was not triggered if the defendant received a conditionally suspended sentence or probation.
We recently refined some aspects of Delacruz’ holding in our decision cited in Neal’s Rule 6.09 letter: State v. Youngblood, 288 Kan. 659. After a lengthy review of Delacruz and after consideration of the United States Supreme Court’s later decision in Alabama v. Shelton, 535 U.S. 654, 122 S. Ct. 1764, 152 L. Ed. 2d 888 (2002), we eliminated the Delacruz bright-line “actual imprisonment” rule. We pronounced the law as follows:
“A person accused of a misdemeanor has a Sixth Amendment right to counsel if the sentence to be imposed upon conviction includes a term of imprisonment, even if the jail time is suspended or conditioned upon a term of probation. The right to counsel arises at the stage of the proceedings where guilt is adjudicated, eligibility for imprisonment is established, and the prison sentence determined.” (Emphasis added.) 288 Kan. 659, Syl. ¶ 2.
Consequently, we must reject as a matter of law the State’s purportedly dispositive argument, and the Court of Appeals holding, that simply because Neal’s 1987 and 1988 misdemeanor convictions did not result in “actual imprisonment,” he was not entitled to counsel.
Nevertheless, it must still be determined whether Neal was otherwise entitled to counsel under the loosened requirements of Youngblood, i.e., whether his sentence includes jail time that is suspended or conditioned upon a term of probation. Because of some ambiguity in the Court of Appeals’ approach, we must make clear that Neal bears the burden of proof on this issue and several others because he has filed a motion to correct an illegal sentence after his direct appeal ended, whereas the State had borne the burden through the direct appeal. See, e.g., State v. Jones, 272 Kan. 674, 35 P.3d 887 (2001) (defendant who through motion to correct illegal sentence collaterally challenges the constitutional validity of prior convictions used to enhance his or her sentence, based on a claim of the absence of counsel, has the burden to show he or she did not have the benefit of counsel at the prior convictions); State v. Patterson, 262 Kan. 481, 939 P.2d 909 (1997) (same). Compare, e.g., State v. Youngblood, 288 Kan. 659 (on direct appeal of use of prior convictions to increase defendant’s crime severity level and enhance sentence, State retains burden of showing defendant was advised of right to counsel and that waiver was knowingly and intelligently waived).
Our review of this issue and others is complicated by the district court’s failure to hold an evidentiary hearing on Neal’s motion, effectively denying it as a matter of law. However, we do have both Neal’s motion — which contents he swore were true and which he signed before a notary public — and its attachments to consider for determining whether these documents are sufficient to meet his burden or if remand is required. Compare State v. Jones, 272 Kan. 674 (defendant offered no evidence to support contention that he was not represented by counsel in previous convictions used to enhance sentence for present convictions; failed to meet burden of proof and denial of his motion to correct illegal sentence after hearing was affirmed); State v. Patterson, 262 Kan. 481 (motion to correct illegal sentence contained no evidentiary basis, only conclusory contentions; defendant failed to meet burden of proof and thus district court did not err in denying motion without hearing).
We conclude remand is not necessary on this particular issue because all the evidence in the record — to which the State chose not to add once Neal filed his motion — conclusively establishes Neal’s entitlement to counsel. We observe that according to the State’s disposition sheet/joumal entry for the 1987 battery conviction that Neal attached to his motion, on March 31, 1987, he pled guilty and was sentenced to 3 months. Per that document, he was placed on written parole/probation and required to report monthly for 6 months (he was also sentenced to 3 months for petit larceny). According to the handwritten notes on that document, on March 31, among other things he also was ordered to pay a fine and restitution, to use no alcohol or drugs, and to violate no laws. Consistent with this document is Neal’s motion to correct an illegal sentence in which he swears he was sentenced to jail time, fined $150, and ordered to report to a probation office.
We conclude that Neal was sentenced to jail and because the conditions of probation would be meaningless without consequence, we also conclude the jail sentence had been suspended during his compliance with the conditions. Consistent with this suspension conclusion is Neal’s motion in which he swears that if he did not pay the fine, he would have been placed in jail. Per Neal’s burden of proof articulated in Jones, and his substantive requirement articulated in Youngblood, he has established through the State’s document that he was entitled to legal counsel on the 1987 case. See 288 Kan. at 670 (“Youngblood was entitled to counsel when the municipal court found him guilty and sentenced him to a [jail] term, even though the jail time was conditioned upon probation.”).
As for Neal’s 1988 batteiy conviction, we similarly observe that according to the State’s disposition sheet/joumal entry Neal attached to his motion, on April 4, 1988, he pled guilty, was fined $300, and was sentenced to 6 months in jail. Per that document, he was placed on written parole/probadon and required to report for 6 months. Handwritten notes on that document further disclose that, on April 4, among other things he was ordered to attend the domestic violence program and follow its recommendations. He was also ordered to violate no laws. Consistent with this document is Neal’s motion in which he swears he was sentenced to 6 months’ jail time, fined $300, and placed on probation.
We conclude that Neal was sentenced to jail and because the conditions of probation would be meaningless without consequence, we also conclude the jail sentence had been suspended during his compliance with the conditions. Per his burden of proof articulated in Jones, and his substantive requirement articulated in Youngblood, Neal has established through die State’s document he was entided to legal counsel on the 1988 case.
As a result of our concluding on this record that Neal was entided to counsel in both cases, we now turn to the State’s alternate argument for the 1987 batteiy conviction: that Neal did have counsel. While per Jones the burden is on Neal to prove that he did not have counsel, the State appears to contend its argument and factual support are dispositive of the counsel issue, thus ehminating any remand requirement.
The State points to “P. Journey CPD,” as handwritten on the disposition sheet next to that form’s printed statement: “Defense Att’y.” One substantial problem, however, is the lack of clarity on exactly when P. Journey allegedly represented Neal. We observe that immediately below Journey’s identification the form states “Date Entered,” and handwritten there is a date well after Neal’s guilty plea and sentencing. Moreover, the sheet shows a number of the case’s seemingly dispositional events in which counsel could be involved and their corresponding dates — most of which are after Neal’s guilty plea and sentencing. Consistent with this form’s uncertainty on tire exact date(s) of counsel’s representation is Neal’s motion in which he swears that he entered uncounseled pleas of guilt in both cases.
As a result, from this record we must necessarily disagree with the State’s dispositive conclusion that “defendant was represented by T. Journey CPD’ at the time his plea was entered.” (Emphasis added.) Because of the uncertainty surrounding the timing of Journey’s legal representation of Neal, if any, and because the district court’s summary denial of Neal’s motion cut off his ability to fully pursue the proof of no legal representation beyond what was contained in his motion, we must remand for an evidentiary hearing on this issue.
Similarly, we now turn to the State’s alternate argument for the 1988 battery conviction: that the reason the disposition sheet/journal entry does not state that Neal did have counsel is because he waived that right. Again, while per Jones the burden is on Neal to prove that he did not waive his right — and not on the State to prove that he did — the State appears to contend its argument and factual support are dispositive of the waiver issue, thus ekminating any remand requirement.
In support, the State points to language stamped on the form: “Defendant has been advised of his constitutional rights and enhancements by__” Handwritten in the blank is “4-4-88.” Below the stamp is a handwritten notation stating “waiver 4-4-88 HEF,” which the State presumes are the initials of the presiding judge. The Court of Appeals not only agreed with the State’s waiver óf counsel argument regarding the 1988 conviction but also, perhaps sua sponte, applied it to the 1987 conviction. After all, the 1987 disposition sheet/joumal entry contains the same stamped lan guage, the same “HEF” initials, and a handwritten word that appears to state “waiver.” The only difference between this 1987 form and the 1988 form regarding this issue is in the handwritten date: “2-24-87.”
For guidance on the State’s purportedly determinative argument we turn to State v. Hughes, 290 Kan. 159, 224 P.3d 1149 (2010). While not involving a motion to correct illegal sentence where defendant had the burden of proof, Hughes nevertheless contains some parallels. There, similar to the instant case, the defendant collaterally attacked two of his three prior uncounseled misdemeanor convictions that had been converted to one felony for criminal history purposes to enhance his sentence. In his direct appeal he specifically argued he did not knowingly and voluntarily waive his right to counsel for those convictions. We observed that under In re Habeas Corpus Application of Gilchrist, 238 Kan. 202, 708 P.2d 977 (1985), the evidence in the record must answer two critical questions to establish an effective knowing and voluntary waiver of counsel:
“[F]irst, whether the defendant has been fully advised and properly informed of his or her right to counsel and, second, whether, upon having been fully advised and properly informed, the defendant made a clear determination not to have counsel represent him or her before the court.” (Emphasis added.) 290 Kan. at 169.
The Hughes court acknowledges that meeting these two requirements did not necessarily require the use of the form suggested in Gilchrist for municipal courts. We observed that the Hughes defendant signed a court form acknowledging that he was fully advised by the court of his right to counsel and that he knowingly and intelligently waived that right, and that the court also signed the form underneath language stating “Subscribed and sworn to before me this 25 day of July 1995.” However, the form contained no verification or validation of what the defendant was actually told about his rights by the judge. We concluded: “It is not up to the defendant to know what ‘fully advised’ [under Gilchrist] means. It is the judge who is burdened with assuring that [defendant’s] rights have been adequately protected.” 290 Kan. at 171.
Accordingly, we held that in order for a defendant to be “fully advised and properly informed,” a judge must certify that the defendant received the required information. 290 Kan. at 172 (expressing that “the importance of the judge's certification in the waiver cannot be understated”). We stated: ‘Without the certification language, all that can be readily determined is that a defendant acknowledges being informed of his or her rights, but we cannot ascertain whether the proper or full panoply of rights was ever communicated.” (Emphasis added.) 290 Kan. at 172. Consistent with this principle we held:
“Not only must a defendant clearly acknowledge a knoioing and voluntary waiver of right to counsel but the record must also establish that the judge has satisfied the obligation to insure that the proper information has been communicated so that the defendant may intelligently make that choice(Emphasis added.) 290 Kan. at 172.
Because the Hughes record failed to establish the judge had satisfied this obligation, we held the State had failed to meet its burden of showing that the waiver in Hughes’ two prior misdemeanor convictions was knowingly and intelligently made. Accordingly, they were constitutionally invalid. We reversed and remanded to the district court for resentencing based on a recalculated criminal history that did not include those convictions.
While admittedly the burden was on the State in the Hughes direct appeal, and the burden is instead on Neal through his motion to correct an illegal sentence, a similar problem exists in the instant case: correctly identifying all of Neal’s “constitutional rights and enhancements” of which he allegedly has been advised by the person whose initials appear near the forms’ stamp containing that language. We observe, for example, in Neal’s motion he swears that he “was not ordered to sign any forms, or given any forms, which would have detailed the stamped language.” He specifically swears he was never advised of his right to counsel.
We also observe that in the 1988 case Neal had no defense attorney because the State argues that after he was informed of his right to counsel, he waived it per the handwritten “waiver” annotation; yet in the 1987 case the State argues that Neal had “P. Journey” as counsel — even though that form also contains a written notation that Neal “waived” his constitutional rights, which would include the right to counsel. In any event, we further observe that in Neal’s motion he swears that he never waived his rights to counsel; he specifically never signed any waiver forms.
Hughes had cited a number of cases, including State v. Allen, 28 Kan. App. 2d 784, 20 P.3d 747 (2001), for the principle that a simple acknowledgement that the defendant waived his or her rights is not enough to clearly show what rights the defendant had indeed waived. 290 Kan. at 172. Allen is of special guidance on the issues of the sufficiency of the rights advisory and the waiver of those rights, particularly because it involved a disposition sheet/ journal entry containing the identical stamped language as the ones in the instant case.
Similar to the instant case, Allen had three municipal misdemeanor battery convictions that were aggregated into one person felony, worsening his criminal history score and enhancing his sentence. After examining the cases’ journal entries, the trial court concluded the State’s “ ‘exhibits show the defendant was advised of his rights in municipal court [in two cases]... and that he waived his rights in the latter case.’ ” 28 Kan. App. 2d at 788. The trial court relied upon language stamped on two of the journal entries: “ ‘DEFENDANT HAS BEEN ADVISED OF HIS CONSTITUTIONAL RIGHTS AND ENHANCEMENTS.’ ” 28 Kan. App. 2d at 788. Perhaps similar to the Court of Appeals apparent rationale in the instant case, the “trial court accepted the prosecutor’s explanation that a word written on [one] entry read ‘waiver’ and indicated a waiver of rights.” 28 Kan. App. 2d at 788.
The Allen court observed that although the trial court determined Allen “was advised of his rights and waived them, it did not specify which rights he waived.” 28 Kan. App. 2d at 790. It also observed Allen argued that the stamped language and the word the prosecutor interpreted as reading “waiver” were insufficient to establish he was advised of, or waived his right to, counsel. 28 Kan. App. 2d at 790.
The Allen court held that the handwritten word “waiver” did not specifically explain what was being waived and, “[a]s a result, we determine that although the stamped language may show that Al len was told of his right to counsel, the word . . . waiver, when strictly construed, does not affirmatively show that Allen knowingly and intelligently waived his right to counsel.” (Emphasis added.) 28 Kan. App. 2d at 791.
The Hughes court also cited another decision where, like the instant case, three of the defendant’s person municipal misdemeanors were converted to a person felony. State v. Reed, No. 90,170, 2004 WL 556754 (Kan. App.) (unpublished opinion), rev. denied 278 Kan. 851 (2004). Also like the instant case, the defendant argued those convictions were not constitutionally valid because he was not represented by counsel and had not waived his right to counsel in those cases. Further like the instant case, for one of the convictions the defendant never signed a waiver of rights form. Instead, the State presented a journal entry containing the following handwriting: “6/16/00 factual basis — fully advised of rights, waives them.” Reed, slip op. at 5. The Court of Appeals panel observed the document failed to specify what rights defendant waived. Accordingly, it held that standing alone the document failed to establish that he knowingly and intelligently waived his right to counsel — the State’s burden to show on direct appeal.
Based upon the above case law and this record, we simply cannot agree with the State that it has absolutely established its dispositive position for Neal’s 1988 conviction: that he was advised of his right to counsel and knowingly and intelligently waived that right. Nor can we agree with the Court of Appeals that under these facts its application of the identical “rights advisory and waiver” rationale to the 1987 and 1988 convictions dispositively validates those convictions as constitutional.
Finally, while it is Neal’s obligation to prove he had not been advised of his right to counsel or, if so, that he did not knowingly and intelligently waive his right, we cannot conclude he has met this burden. Simply put, the district court’s summary dismissal of his motion to correct an illegal sentence significantly reduced his ability to do so. Accordingly, the case is reversed and remanded for an evidentiary hearing on all these issues.
The Court of Appeals decision affirming the district court’s ruling is reversed. This matter is remanded to the district court for evidentiary hearing.
Moritz, J., not participating.
Kim W. Cudney, District Judge, assigned. | [
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The opinion of the court was delivered by
Kingman, 0. J.:
On the 17th of April, 1867, the plaintiffs in error insured the dwelling of John Curran, in Leavenworth, for one year. On the 28th of June of that year John Curran died. On the 17th of September the building was destroyed by fire. The defendant in error having administered on the estate of Curran, her late husband, brought an action for $150, the amount insured by the plaintiff in error; and for this amount with interest she recovered judgment. To reverse this judgment the plaintiff in error brings the case to this court, alleging numerous errors, in pleading, in the admission and rejection of testimony, and in the instructions given and refused by the court. Such of these alleged errors as are deemed of importance will be noticed.
It is claimed that as the petition did not state that the insurance company had taken the necessary steps to authorize it to do business in this state as required by statute, that it was therefore defective, and no testimony should have been admitted under it. Such an averment was not only unnecessary, but in such an action as this the insurance company could not set up such a state of facts as a defense. A foreign insurance company doing business in this state, when sought to be made liable for its contracts made here, is estopped from saying that they are doing business contrary to law; and what the company could not set up as a defense, as to that matter, the plaintiff need not aver.
As a further objection to the petition it is urged that the administratrix could not recover without an averment that the house was personal property. The policy stipulated to make good to “ the assured, his executors, administrators, and assigns, all such immediate loss or damage,” etc.; and the administratrix is the proper party to sue in such a case: (Angelí on Ins., § 389; 2 Phil, on Ins., 1796.) There was testimony tending to show that John Curran owned the property insured, which he had built on leased property. It is true that Mrs. Curran speaks of it as though she had control of it, that she paid the insurance premium, that she occupied it with her family. Yet this is to be taken in connection with the other testimony; and we think the jury very properly found it to have been the property of John Cur-ran when insured.
The policy sued on stipulated that the assured should forthwith give notice of loss to the company through the general agent in New York. There is no direct, positive proof of such notice, and therefore it is claimed . n0 recovery • tut the testimony showed that the local agent in Leavenworth gave written notice within forty-eight hours of the loss, to the general agent in New York, and that Mrs. Curran was at the local agent’s office immediately after the fire; and one cannot read the case without a full conviction that she was in earnest in her efforts to get the insurance money. The jury were instructed on this point, that the plaintiff could not recover unless she gave the notice as soon as she could with reasonable effort do so; but that the notice was sufficient if the local agent of the company acting upon information of the loss given by plaintiff immediately after the fire, communicated intelligence of the fire and loss of property to the defendant through its general agent in New York. We think this was a fair presentation of the law as applicable to the testimony in this case. The jury must have found that the notice was given by the local agent, upon information furnished by the plaintiff; and this is a reasonable inference from the testimony, and a substantial compliance with the requirements of the policy.
It is insisted that the preliminary proofs of loss required by the policy, and given in evidence, are not such as the policy requires, and the ease seems to have been tried on this hypothesis. These proofs are very full and miñute, and but one objection is made to them in this court, and that alone will be noticed. The objection is at most very technical, and not to be favored; but even that will be found upon inspection to be illusory. In addition to proof of loss, the policy required that “ the insured shall also produce a certificate under the hand and seal of a magistrate, notary public, or commissioner of deeds, (nearest to tbe place of fire, not concerned in the loss as a creditor, or otherwise, nor related to the assured,) stating that he has examined the circumstances attending the loss, knows the character and circumstances of the assured, and verily believes the assured has, without fraud, sustained loss on the property insured to the amount which such magistrate, notary public, or commissioner of deeds shall certify.” The certificate states that the magistrate'who makes it, resides most contiguous to the property destroyed, that he is not concerned in the loss or claim as a creditor or otherwise, or related to the insured or sufferer, and then states “that I have examined the circumstances attending the fire or damage as alleged, and that I am well acquainted with the character and circumstances of the insured, and do verily believe that the estate of said John Curran, deceased, has by misfortune, and without fraud or evil practice upon the part of any of the heirs, or any one interested in said estate, sustained loss and damage to the amount of $760.40.” A comparison of the requirement of the policy and the certificate made, shows a substantial, and as far as the situation of the parties permitted, almost a literal compliance with the stipulation of the policy; and when the object of the stipulation is considered, the objection will be found to be witlnrat color of reason.
Another point of more difficulty is this: After the death of her husband and before the loss by fire the plaintiff made a contract to sell the property to one Wilson. This contract is in writing. It is so obscure and uncertaiu that it is almost impossible to give it a definite construction. The court below avoided the difficulty by telling .the jury that “the meaning and import of the instrument is not’definite and certain, and therefore the question is submitted to the jury to determine the intention of the parties.” It was undoubtedly the duty of the court to give a construction to the writing, and the failure to do so was error; but it is no ground for reversing the judgment, because it is clear that the jury must have put upon it a correct construction. such as the court should nave given it, or they could not have found for the plaintiff: Richer v. Cutter, 8 Gray 248. The instrument is not of itself a conveyance of the property, or a promise to convey. The most that can be made out of it is that it is an informal memorandum of terms, which the parties had agreed to about the property, which was to be carried into effect in October afterwards.
In her examination by the insurance company’s attorney, the plaintiff, under oath, stated that she had sold the property to Wilson. This statement was made soon after the loss, and it was this statement, undoubtedly, mainly induced the company to resist the payment. The. counsel for plaintiff in error insists that this statement should operate as an estoppel on the administratrix, so as to prevent her denying the sale of the property. It has not one of the elements of an estoppel. It went to the jury, and had its proper influence in forming their decision, and this is all that can be justly claimed for it.
In the course of the trial, plaintiff announced that he had closed his testimony, but before anything further had taken place, asked and obtained leave to introduce other testimony. This was correct practice.
From what has been said it is apparent that the court properly refused the instructions asked by the plaintiff in error, and did not err to the prejudice of the same party in the instructions given. The judgment must be affirmed.
Yaientine, J., concurring.
Brewer, J., was not on the bench when this case was submitted. | [
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|
The opinion of the court was delivered by
RILES, J.:
Raymore R. Levy appeals his convictions for rape of a child under 14 years of age, aggravated criminal sodomy of a child under 14 years of age, and aggravated indecent liberties with a child. Levy received three life imprisonment sentences under Jessica’s Law, K.S.A. 21-4643. The third sentence runs concurrent with the first two, effectively imposing two life terms.
On appeal, Levy makes three arguments: (1) his sentence is disproportionate in violation of the Eighth Amendment right against cruel and unusual punishment; (2) his Sixth Amendment right to confrontation was violated after a recorded “Safetalk” video interview was shown at his preliminary hearing when the child victim was not there to be cross-examined; and (3) both his trial counsel were ineffective, depriving him of a fair trial.
We affirm. We find the first two issues were not properly preserved for appeal. We decline to decide the third issue because it was raised for the first time on appeal. See Rowland v. State, 289 Kan. 1076, 1084, 219 P.3d 1212 (2009) (As a general rule, an ineffective assistance of counsel claim will not be considered for the first time on direct appeal.).
Factual and Procedural Background
It is unnecessary to relate the details of the crimes charged against Levy in light of our finding that none of the issues raised were preserved for review. The following facts are sufficient to understand the arguments made.
Levy’s girlfriend’s 7-year-old daughter disclosed to school officials that Levy was sexually abusing her. The victim described the abuse in detail in a recorded Safetalk interview with a social worker. The victim was given a medical examination the same day she alleged an incident of abuse had occurred. Levy’s semen was found on the inside of the victim’s underwear, but not on the swabs used on the victim during the medical exam. In a three-count complaint, Levy was charged with rape of a child, aggravated criminal sodomy of a child, and aggravated indecent liberties/lewd fondling with a child. All three counts alleged the victim was under 14 years of age, and Levy was over 18 years of age, triggering an enhanced sentence under Jessica’s Law.
At Levy’s preliminary hearing, the victim did not testify. Instead, the State sought to admit her recorded Safetalk interview with the social worker. Levy’s attorney questioned the recording’s chain of custody but made no objection. The video was then played for the court. Notably for this appeal, Levy’s counsel did not raise a Confrontation Clause issue during this proceeding.
The interviewing social worker testified at the preliminary hearing about her initial interactions with the victim. She testified the victim at first said her “dad” had been hurting her “down there” and that this led to some early confusion about whether the victim was referring to Levy or her biological father. But the social worker explained further that this uncertainty resolved itself when the victim made it clear Levy was the abuser. On cross-examination, defense counsel asked who reported the name of the biological father as an alleged perpetrator. The social worker said she would not answer unless the court ordered her to do so. Defense counsel did not ask the court to order a response. When the hearing concluded, Levy was bound over for trial.
After the preliminary hearing, and at his request, Levy was appointed new trial counsel who moved for a second preliminary hearing, claiming-Levy was denied the right to confront the victim at the earlier proceeding. The district court denied the motion.
At trial, a KBI forensic biologist testified about evidence gathered and tested from the victim’s body and clothing, which established that the semen found on the victim’s underwear was consistent with Levy’s DNA. These findings were compiled into a report the State sought to admit. Levy’s trial counsel did not object to the DNA report’s admission but later made multiple objections for chain of custody reasons, none of which were sustained.
The victim testified at trial as part of the State’s case against Levy. The trial transcript shows she was a reluctant witness at times, although she acknowledged that she must answer questions from the lawyers and tell the truth. The prosecutor initially had difficulty getting the victim to describe what had happened to her. She repeatedly asked not to be questioned about the allegations against Levy. At one point during her direct examination, a recess was called so the victim could compose herself when she started crying. Eventually, she identified Levy as the person who sexually abused her and described the abuse. She also described the Safe-talk interview, the medical examination conducted on her at the hospital, and her conversation with police.
On cross-examination, defense counsel inquired further about the Safetalk interview and the victim’s initial report of the sexual abuse. The victim acknowledged shé had confirmed to her teacher that “her mom’s boyfriend” had hurt her. Counsel also had the victim agree that she had told the truth in her interviews about the allegations. At the end of cross-examination, Levy’s trial counsel stated simply, “I don’t have any additional questions.” Defense counsel lodged no objection or complaint that his cross-examination was incomplete or otherwise thwarted by any reluctance, nervousness, or hesitation by the victim.
The State offered into evidence the recorded Safetalk interview during the social worker’s trial testimony. In response, Levy’s attorney only said, “I haven’t seen that physical one, but I’m sure it’s the same of [sic] the original, and same ones provided to us. Assuming that’s correct, we have no objection.” The court then admitted the recorded interview into evidence and played it for the juiy.
At the close of evidence and before the case was submitted to the jury, Levy’s trial counsel moved for judgment of acquittal. The argument, in part, related to the Safetalk video but was not made in a Confrontation Clause context. Rather, defense counsel contrasted the facts provided in the more detailed recorded interview with the evidence presented at trial. In essence, the video was used as an illustration for Levy’s claim of insufficient evidence to support the charges against him. The district court overruled the motion. The jury found Levy guilty on all counts.
Before sentencing, Levy’s counsel filed another motion for acquittal and, in the alternative, moved for a new trial. In both motions, Levy’s attorney made a Confrontation Clause argument for the first time relating to the Safetalk video. The claim was that because the victim was not subject to cross-examination at the preliminary hearing and then at trial was a reluctant witness who gave limited testimony, the jury convicted Levy based on the recorded interview alone. Levy argued this was in violation of his due process rights and Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) (accused has right to confront and cross-examine witnesses testifying against them). The State replied there was no Confrontation Clause violation because Levy had the opportunity to cross-examine the victim at trial. The court denied Levy’s argument and motion for new trial.
In preparation for sentencing, Levy filed a motion for downward departure in which he argued the minimum mandatory statutory sentences for his convictions would be “excessive” because he had no prior criminal history related to child abuse or sexual crimes and was only 20 years old at the time of the crimes. Levy’s counsel also argued orally at the sentencing hearing that the sentence would be “excessive.” The State objected.
The court denied Levy’s downward departure motion and sentenced him to life in prison with a mandatory minimum of 25 years on count 1 (rape), with no good-time credit, lifetime electronic monitoring, and lifetime postrelease supervision; life in prison with a mandatory minimum of 25 years on count 2 (aggravated criminal sodomy), with no good-time credit, lifetime electronic monitoring, and lifetime postrelease supervision, to run consecutive to count 1; and life in prison with a mandatory minimum of 25 years on count 3 (aggravated indecent liberties), to run concurrent with counts 1 and 2.
Analysis
Issue One: Cruel and Unusual Punishment
Levy argues his life sentence with a mandatory minimum of 25 years ordered pursuant to Jessica’s Law violates the Eighth Amendment’s prohibition against cruel and unusual punishment. But the substance of Levy’s argument may not be analyzed without first determining whether the issue is properly preserved. Generally, claims of constitutional error cannot be raised for the first time on appeal, but there are some recognized exceptions. See State v. Ortega-Cadelan, 287 Kan. 157, 159, 194 P.3d 1195 (2008). Levy argues the issue was preserved, instead of invoking an exception.
Levy concedes, and the sentencing hearing record reflects, that no specific objection was made to the district court about Levy’s sentence being cruel and unusual. But Levy argues his counsel’s characterization of the sentence as “excessive” in the written departure motion and repeated orally at sentencing properly preserved the issue for appeal. Specifically, in his departure motion, Levy’s counsel stated: “The defendant is now 21 years of age and was only 20 at the time of the alleged offense. A minimum term of imprisonment of not less than 25 years is excessive on the facts of this case and circumstances in the instant case.” And prior to the district court handing down Levy’s sentence, while arguing for the downward departure, defense counsel said, “The defendant, at the time this offense was committed, was twenty years old; was an adult by two years. And a term of twenty-five years, given this defendant and these facts, we think is excessive in this case.”
Levy acknowledges he did not use the phrase “cruel and unusual punishment” or “violation of the Eighth Amendment,” but urges this court to find that an inquiry into this issue should have been made nevertheless. But the test is not simply whether certain catch phrases were used in making an argument about cruel and unusual punishment. See State v. Mondragon, 289 Kan. 1158, 1164, 220 P.3d 369 (2009) (“Because there was no effort before the district court to present the issue of whether a Jessica’s Law sentence is cruel or unusual, the issue cannot be raised for the first time on appeal.”).
In State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1978), this court listed three relevant factors in determining whether a sentence violates the constitutional prohibition against cruel and unusual punishment. They are:
“(1) The nature of the offense and the character of the offender should be examined with particular regard to the degree of danger present to society; relevant to this inquiiy are the facts of the crime, the violent or nonviolent nature of the offense, the extent of culpability for the injury resulting, and the penological purposes of the prescribed punishment;
“(2) A comparison of the punishment with punishment imposed in this jurisdiction for more serious offenses, and if among them are found more serious crimes punished less severely tiran the offense in question the challenged penalty is to that extent suspect; and
“(3) A comparison of the penalty with punishments in other jurisdictions for die same offense.” 223 Kan. at 367.
Freeman did not require that the defendant address these three factors first with the district court, but more recent decisions from this court do. For example, in State v. Garza, 290 Kan. 1021, 1032-34, 236 P.3d 501 (2010), we rejected the defendant’s argument for cruel and unusual punishment because it was not preserved. In Garza, the defendant argued he advanced the issue when he stated in his departure motion at the trial level only that the statutory minimum sentence would “ ‘amount to cruel and unusual punishment.’ ” 290 Kan. at 1032. We held the issue was not preserved. 290 Kan. at 1034 (citing State v. Morningstar, 289 Kan. 488, Syl. ¶ 4, 213 P.3d 1045 [2009]). Previous decisions by this court similarly barred a defendant’s cruel and unusual punishment argument for lacking preservation. See State v. Trevino, 290 Kan. 317, 320-22, 227 P.3d 951 (2010); Mondragon, 289 Kan. at 1164; State v. Easterling, 289 Kan. 470, 485-87, 213 P.3d 418 (2009); State v. Spotts, 288 Kan. 650, 652-54, 206 P.3d 510 (2009); State v. Thomas, 288 Kan. 157, 160-61, 199 P.3d 1265 (2009); Ortega-Cadelan, 287 Kan. at 159-61.
To date, we have held this issue was preserved in only one appeal, and Levy’s trial objections fall far short of the Eighth Amendment objection raised in that case. See State v. Seward, 289 Kan. 715, 718-21, 217 P.3d 443 (2009). In Seward, the defendant actually launched a federal and state constitutional challenge during plea negotiations with the State, included the claim in his written downward departure motion, and restated it at his sentencing hearing. But even in that case, we remanded the issue to the district court to make the required factual and legal findings articulated by Freeman, rather than take it up for the first time on appeal, adding:
“We emphasize that we believe this case to be exceptional. In the future, a defendant who wishes to appeal on the basis of a constitutional challenge to a sentencing statute must ensure the findings and conclusions by the district judge are sufficient to support appellate argument, by filing of a motion invoking the judge’s duty under Rule 165, if necessary.” 289 Kan. at 721.
See Supreme Court Rule 165 (2010 Kan. Ct. R. Annot. 242).
At oral argument in this appeal, Levy’s counsel acknowledged the effort now to raise this issue was “pushing the envelope.” The litany of cases holding that this issue should be developed first at the district court level underscore this requirement. Accordingly, we hold that Levy’s argument was not preserved.
Issue Two: Confrontation Clause
Levy next challenges the district court’s admission into evidence of the recorded Safetalk interview at his preliminary hearing because the victim, who was the subject of the recording, was not called to testify. Levy argues admitting the interview into evidence under these circumstances violated the Confrontation Clause of the Sixth Amendment to the United States Constitution. He also contends as a separate matter that it was error to admit the Safetalk interview into evidence at trial because the victim’s testimony was incomplete and evasive, effectively denying him his right to confront his accuser. In addition, Levy asserts K.S.A. 22-2902(3), which permits a sexual abuse victim to be absent from a preliminary hearing if under 13 years of age, is unconstitutional under the Confrontation Clause.
As with the previous issue, we must first determine whether Levy preserved his Confrontation Clause objections during the district court proceedings. In State v. Dukes, 290 Kan. 485, 231 P.3d 558 (2010), the defendant raised a Confrontation Clause issue for the first time on appeal in a driving under the influence case, arguing his rights were violated with the admission of the State’s breathalyzer certification documents without giving him an opportunity to cross-examine the technician who actually prepared the documents. We held the issue was not preserved because the defendant did not object to the evidence’s introduction at trial. 290 Kan. at 489. In so holding, we emphasized that a defendant must make a specific and timely objection to allow the trial court an opportunity to rule on the issue, even when the issue raised involves a fundamental right. See K.S.A. 60-404; Dukes, 290 Kan. at 489. We noted K.S.A. 60-404 dictates that a party may not present an evidentiary issue on appeal when no contemporaneous objection is made and the trial court did not have an opportunity to rule. 290 Kan. at 488.
Considering first Levy’s challenge to the district court’s admission of the Safetalk interview at his preliminary hearing, we note the following exchange took place between the court, the prosecuting attorney (State), and the defense attorney (Defense):
“Q. Ms. [witness], showing you what’s been marked as State’s exhibit No. 1. Does that compact disk or DVD, does that contain a recording of the interview as you conducted it on 12-21?
“A. Yes, it does.
“Q. And is that recording a fair and accurate recording of the interview as you conducted it that day?
“A. Yes, it is.
“[State]: Your Honor, State would move for admission of State’s Exhibit No. 1.
“THE COURT: All right, any objection?
“[Defense]: Judge, if I could inquire?
“THE COURT: Go ahead.
“[Defense]: Ms. [witness], did you actually handle the recording of the interview?
“A. I was not the one. running the equipment. I was the one conducting the interview.”
Defense counsel then proceeded to inquire about the number of copies made of the recording, whether the witness reviewed the recording, whether the witness had her copy with her in court, whether it was the same version as the one the State had, and then concluded with:
“[Defense]: I have nothing further.
“THE COURT: Okay, I will admit it.
“[State]: Thank you, Your Honor. And, Your Honor, at this time I request that— to publish State’s Exhibit 1.
“THE COURT: Okay.”
The video was then played for the court. When the State presented all its evidence, the court asked the parties if either wished to make any closing statements. Defense counsel replied simply, “Judge, we would submit,” and did not make a closing statement or raise any objection. Clearly, no challenge was made at the preliminary hearing to admission of the recording or the victim’s absence from the proceedings.
Similarly, at trial no objection was made when the Safetalk recording was offered into evidence and played for the jury. Levy’s trial counsel noted only that he was assuming the recording offered was the same as the original and the one provided to the defense in advance of trial. Defense counsel then stated, “Assuming that is correct, we have no objection.” No mention was made of any in ability to more thoroughly cross-examine the victim, who testified prior to the State offering the recording into evidence.
Under these circumstances, we hold that Levy failed to comply with K.S.A. 60-404 to preserve for appeal an attack on the district court’s admission at the preliminary hearing and trial of the Safe-talk video recording, as well as an attack on the constitutionality of K.S.A. 22-2902(3). Dukes resolves these questions. See 290 Kan. at 487-90.
Issue Three: Ineffective Assistance of Counsel
Finally, Levy raises two instances in which he contends his attorneys were deficient in the proceedings before the district court. First, from the preliminary hearing, he argues his attorney should have asked the district court to order the testifying social worker to disclose more information about the person Levy now characterizes as an alternate suspect — the person also referred to by the victim as her “dad” during the interview. Second, during trial, Levy argues his attorney should have objected to admission of the exhibit containing both the lab report on the swabs taken during the victim’s hospital examination and her underwear. Levy argues the exhibit was inadmissible due to chain of custody problems. As an alternative argument, Levy contends we should remand the case to the district court to order a hearing on his ineffective assistance of counsel claims in order to develop more facts. See State v. Van Cleave, 239 Kan. 117, Syl. ¶ 2, 716 P.2d 580 (1986).
The State counters that this argument should not be considered for the first time on appeal and should be brought in a collateral proceeding rather than on direct appeal. The State also argues there is no basis to find Levy’s counsel was ineffective. Again, before we can examine the merits, we must determine whether the issue was preserved.
Levy did not raise an ineffective assistance of counsel claim below through a K.S.A. 60-1507 motion or otherwise. As a general rule, such claims will not be considered for the first time on direct appeal. Rowland v. State, 289 Kan. 1076, 1084, 219 P.3d 1212 (2009). In Rowland, we explained the rationale for this kmitation is a recognition that the trial court is best equipped to deal with the analysis required for such claims because it observed counsel’s performance and competence first-hand and can apply that knowledge to the facts. 289 Kan. at 1084. Often, the pertinent questions are subject to conflicting testimony and evidence regarding counsel’s actions or inactions, the significance to be given to them, and the strength or weakness of a particular argument. It is rare when the acts of counsel are not in dispute and so clearly reflected in the record that remand would serve no real purpose. State v. Carter, 270 Kan. 426, 433, 14 P.3d 1138 (2000).
In Van Cleave, we set guidelines for an appellate court to follow in exercising its discretion when deciding whether to remand a case for an evidentiary hearing. See 239 Kan. at 119-21. In that case, we noted an appellant’s counsel must do more than simply read the cold record of the proceedings before the district court and then argue that he or she would have handled the case differently. We held that counsel must attempt to determine the circumstances under which trial counsel did — or did not — proceed as the appellate counsel believes preferable and conduct at least some investigation into the claimed ineffectiveness. We then noted: “Except in the most unusual cases, [for an appellate counsel] to assert a claim of ineffective assistance of counsel without an independent inquiry and investigation apart from reading the record is questionable to say the least.” 239 Kan. at 120-21.
Levy’s claims fall quickly to these principles. He did not raise his ineffective assistance of counsel claims to the trial court. The general rule recited in Rowland is applicable. And in reviewing the factual basis for his claims now, we do not find them to be so clearly reflected in the record or indisputable that we can decide them simply on the record provided to us. Finally, we see no indication appellate counsel conducted any investigation to determine whether grounds for these claims exist. Accordingly, we hold that Levy’s claims for ineffective assistance of counsel may not be considered for the first time on appeal. In addition, we hold he has failed to meet the minimal requirements established by Van Cleave to remand this issue to the district court.
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The opinion of the court was delivered by
Johnson, J.:
Arthur Eldean Hockett appeals the district court’s grant of summary judgment in favor of The Trees Oil Company (Oil Company) on Hockett’s purported class action against Oil Company for the alleged wrongful withholding of taxes and fees from royalty payments. We affirm in part and reverse in part.
Factual and Procedural Overview
Pursuant to an oil and gas lease with Oil Company, Hockett has a Vs royalty interest in the production from a Haskell County well which produces natural gas (hereafter referred to as the “Hockett well”). Oil Company operates the Hockett well, along with a number of other oil and gas wells in this state.
Oil Company sells the gas produced from its Haskell County wells to certain entities that the parties refer to as “first purchasers.” Helium is extracted from the raw gas and sold separately. Before paying Oil Company for the production, the first purchasers deduct the severance tax imposed by K.S.A. 2010 Supp. 79-4217 and the conservation fee imposed by the Kansas Corporation Commission (KCC) under K.A.R. 82-3-307. Oil Company then pays Hockett Vs of the net sales proceeds, i.e., Vs of die amount Oil Company actually receives from the first purchaser.
On March 9,2009, Hockett filed an action against Oil Company, which was styled as a class action. The class was defined in Hockett’s petition as: “All royalty owners who were paid royalties for oil and/or gas produced from wells located in Kansas in which The Trees Oil Company has owned any working interest between Jan. 1, 1996 to the present.” Hockett claimed that Oil Company had no statutory right to subtract an amount from royalty payments equal to the conservation fee and had no statutory right to deduct a helium severance tax from royalty payments. The petition’s prayer declared that Oil Company “should be ordered to provide an accounting and to pay its royalty owners within the Plaintiff Class for underpayment of royalties in the amount of the Conservation Fee deduction taken and severance tax deduction taken on helium.”
Oil Company filed a motion to dismiss for failure to state a claim. The motion argued that Oil Company could not be held hable for complying with the KCC regulation on conservation fees and that the severance tax on gas included helium as a matter of law. The district court denied the motion to dismiss but requested the filing of a summary judgment motion.
Hockett filed two motions for partial summary judgment: one addressing the conservation fees question and the other addressing the severance tax issue. Oil Company responded to Hockett’s motions and filed a cross-motion for summary judgment. After further summary judgment pleadings, i.e., responses and replies to responses, the district court conducted a hearing on August 31,2009. On September 23, 2009, the district court filed a journal entry denying Hockett’s motions and granting Oil Company’s motion for summary judgment. The district court found, in relevant part:
“[O]n the issue of the severance tax, the tax was enacted to be an [e]ncumbrance on the gas stream and all constituents contained therein. For that reason, the Court finds that the severance tax was appropriately charged on helium upon Plaintiff s royalty portion of the recovered helium.
“[O]n the conservation fee charged under K.S.A. 55-176, . . . the state was attempting to impose an oil and gas operations fee and ... by imposing a mill levy on volume as opposed to a percentage of proceeds from production,. .. the conservation fee was to be imposed on all participants in the oil and gas venture, including the royalty owners.”
Hockett appealed to the Court of Appeals, and this court transferred the appeal pursuant to K.S.A. 20-3018(c). Hockett presents two issues on appeal, which we paraphrase as follows: (1) Whether the district court erred in holding that K.S.A. 55-176 imposes a conservation fee on royalty owners; and (2) whether the district court erred in holding that the severance tax imposed on “gas” means that the tax is assessed against helium. We take the liberty of first addressing the severance tax issue.
Reimbursement for Withheld Severance Tax on Helium
A. Standard of Review
The ruling from which Hockett appeals is the granting of summary judgment in favor of Oil Company. While it appears that there may be disputed facts in this case, none of them is material to the issue upon which the district court ruled as a matter of law. Accordingly, we review the summary judgment under a de novo standard. See Genesis Health Club, Inc. v. City of Wichita, 285 Kan. 1021, 1031, 181 P.3d 549 (2008). Additionally, Hockett asks us to interpret the severance tax statutes, which presents a question of law over which this court exercises unlimited review. See 285 Kan. at 1031.
B. Analysis
Hockett asserts that his royalty payments were wrongfully reduced by the amount of severance tax attributable to helium. He apparently does not challenge that the severance tax applies to royalty owners. See K.S.A. 2010 Supp. 79-4217(a) (“Such tax shall be borne ratably by all persons within the term producer as such term is defined in K.S.A. 79-4216, and amendments thereto, in proportion to their respective beneficial interest in the coal, oil, or gas severed.”). Rather, the basis for Hockett’s claim of wrongful deduction is that he believes there is no statutorily imposed severance tax on the helium component of the extracted gaseous product.
Hockett’s statutory interpretation argument begins with the statutory language that imposes “an excise tax upon the severance and production of coal, oil or gas from the earth or water in this state.” K.S.A. 2010 Supp. 79-4217(a). The statute does not explicitly refer to helium. Hockett points out that the term “gas” is defined as “natural gas taken from below the surface of the earth or water in this state, regardless of whether from a gas well or from a well also productive of oil or any other product.” (Emphasis added.) K.S.A. 2010 Supp. 79-4216(c). Hockett contends that the physical properties of helium are so different from natural gas that helium must be considered in the “any other product” category. Therefore, he argues that the legislature’s inclusion of the “any other product” language in the definition of gas manifests an intent to exclude helium from the severance tax, even though the gaseous helium is randomly commingled with the hydrocarbons and other gases at the time of severance.
Pointedly, Hockett does not discuss another provision in K.S.A. 2010 Supp. 79-4217(a) that specifies the severance tax “shall be applied equally... to the gross value of the gas severed and subject to such tax.” The Secretary of the Kansas Department of Revenue (KDR) has interpreted this provision to answer the very question presented here, i.e., whether helium is subject to the mineral severance tax. In Revenue Ruling No. 92-1998-01, effective December 31, 1998, the KDR Secretary opined that, since helium is a component of natural gas and is measured as part of the full volume of gas as it is severed, helium contributes to the gross value of gas at the wellhead, making helium subject to the severance tax.
Granted, “[a]n agency’s interpretation of a statute is not conclusive; final construction of a statute always rests within the courts.” Denning v. KPERS, 285 Kan. 1045, 1048, 180 P.3d 564 (2008). However, for purposes of this appeal, the point is that the KDR was explicitly and unequivocally assessing a severance tax on helium during most of the applicable time period. Therefore, the first purchaser had no choice in the matter; it had a legal obligation to collect the severance tax on the gross value of gas produced at the Hockett wellhead, including the tax on Hockett’s Vs share of the helium, and then to send the money to the KDR. See K.S.A. 79-4220.
Likewise, Oil Company had no control over the tax assessment against the helium component of the severed gas, either as to Hockett’s Va share or Oil Company’s % share. Oil Company never possessed any of the money used to pay the State of Kansas the severance tax and, therefore, it could not have effected a deduction of Hockett’s share of the tax from the royalties. In effect, Hockett is asking Oil Company to pay his share of the severance tax out of the Oil Company’s own pocket, after Oil Company has paid the tax on its own Va share. Hockett provides no basis, either statutory or contractual, for imposing the obligation on an oil and gas lessee to pay the lessor’s share of taxes.
The severance tax money that Hockett seeks to recoup went to the State of Kansas. If Hockett believes that the KDR was not statutorily authorized to assess a severance tax on his share of the helium, he should seek redress against that agency. Oil Company has no legal duty to refund the State of Kansas’ severance tax to Hockett out of Oil Company’s separate funds. Accordingly, on the severance tax issue, Hockett’s petition failed to state a claim upon which relief could be granted, and we can affirm the district court’s summary judgment in favor of Oil Company. Cf. Robbins v. City of Wichita, 285 Kan. 455, 472, 172 P.3d 1187 (2007) (correct result in district court will be upheld even where court relied upon wrong ground or assigned erroneous reasons for decision).
Reimbursement for Withheld Conservation Fees
Hockett also complains about the reduction of his royalty payments by a proportionate share of the conservation fee assessed by the KCC. Hockett’s basis for this claim differs from that relied upon in the severance tax claim. Unlike his challenge to the KDR’s statutory authority to assess a severance tax on helium, Hockett does not contest the KCC’s statutory authority to assess a conservation fee. Rather, Hockett’s claim is that Oh Company owes the entire fee and that he, as a royalty owner, has no legal obligation to share in that operational expense.
Accordingly, if Hockett is correct, then Oil Company’s royalty payments effectively allocated Va of the conservation fee to Hockett and, in that case, Oil Company would possess the money that Hockett now seeks to recoup. In other words, Oil Company is the proper defendant for this issue. Our task is to determine whether the conservation fee, like the severance tax, is to be borne ratably by all persons with a beneficial interest in the gas.
A. Standard of Review
Again, we are reviewing a summary judgment entered in favor of Oil Company where the material facts are not disputed, and we apply a de novo standard. See Genesis Health Club, Inc., 285 Kan. at 1031. Likewise, this issue involves statutory interpretation over which we exercise unlimited review. 285 Kan. at 1031.
B. Analysis
Statutes and Regulation
Both parties point to K.S.A. 55-176(a) as providing the statutory authority for the imposition of the conservation fee. That provision states, in relevant part:
“[T]he [KCC] shall assess operators or their designated agents for all or part of the actual costs and expenses incurred in: (1) The supervision, administration, inspection, investigation; (2) the enforcement of this act and the rules and regulations adopted pursuant to this act; and (3) monitoring and inspecting oil and gas lease salt water and oil storage, disposal and emergency facilities.”
Elsewhere, the term “operator” is defined as “a person who is responsible for the physical operation and control of a well, gas gathering system or underground porosity storage of natural gas.” K.S.A. 55-150(e). Hockett, as a royalty owner, has no responsibility for the physical operation and control of the Hockett well, i.e., Hockett is not an “operator.” Likewise, Oil Company does not assert that Hockett is its designated agent. Accordingly, Hockett’s straightforward argument is that the plain and unambiguous language of K.S.A. 55-176 only authorizes the KCC to assess a conservation fee against Oil Company, the operator of the Hockett well.
To implement K.S.A. 55-176, the KCC promulgated K.A.R. § 82-3-307, which provides in relevant part:
“In order to pay the conservation division expenses and other costs in connection with the administration of the gas conservation regulations not otherwise provided for, an assessment shall be made as follows.
(a) A charge of 12.90 mills shall be assessed on each 1,000 cubic feet of gas sold or marketed each month. The assessment shall apply only to the first purchaser of gas.
(b) Each month, the first purchaser of the production shall perform the following:
(1) Before paying for the production, deduct an amount equal to the assessment for every 1,000 cubic feet of gas produced and removed from the lease; •
(2) remit the amounts deducted, in a single check if the purchaser desires, to the conservation division when the purchaser makes regular gas payments for this period; and
(3) show all deductions on the regular payment statements to producers and royalty owners or other interested parties.”
Oil Company points out that the regulation assesses the conservation fee against the first purchaser, based on the total production, and requires the first purchaser to give written notice to both the producers and the royalty owners. It suggests that this framework supports its contention that the royalty owners proportionately share in postproduction costs and fees. We disagree.
First, the regulation does not explicitly purport to assess the conservation fee against royalty owners. The use of total production to measure the amount of an operator s conservation fee could fulfill the purpose of equally applying the fee to all operators, regardless of the fractional interest being paid as royalty, e.g., Vs or %6. Assessing the fee against the first purchaser may simply be the most effective, efficient means for the KCC to collect the fees. Likewise, the notice requirement would allow a royalty owner to calculate the proper amount of royalty he/she/it should be receiving, given that the first purchaser s payment to the operator is less than the gross sales price.
Next, even if an intent to assess conservation fees against royalty owners could be gleaned from the regulation, the KCC exceeded its statutory authority. See In re Tax Appeal of Alex R. Masson, Inc., 21 Kan. App. 2d 863, 867, 909 P.2d 673 (1995) (“To be valid, a regulation must come within the authority conferred by statute, and a regulation which goes beyond that which the legislature has authorized or which extends the source of its legislative power is void.”)- Under its plain language, K.S.A. 55-176 simply does not give the KCC authority to assess conservation fees against royalty owners.
Contractual Provisions
Oil Company’s better argument is that neither the statute nor the regulation precludes a royalty owner from agreeing to pay a proportionate share of the conservation fee, i.e., the issue is governed by the parties’ contract. It suggests that the subject contract, i.e., the 1941 oil and gas lease, manifests the parties’ intent that the lessor/royalty owner is obligated to share in paying the operator’s conservation fee, which was statutorily authorized some 45 years after the lease’s execution. See L. 1986, ch. 201, sec. 28 (initial adoption of K.S.A. 55-176). Oil Company divines this intent from the language of the lease’s royalty clause, which states: “The lessee shall monthly pay lessor as royalty on gas marketed from each well where gas only is found, one-eighth (Vs) of the proceeds if sold at the well, or if marketed by lessee off the leased premises, then one-eighth (Vs) of its market value at the well.”
Oil Company asserts that it sells Hockett’s gas at the well, so that he is only entitled to receive “one-eighth (Vs) of the proceeds.” It then recites selected quotes from a number of Kansas cases to support its argument that “proceeds” refers to the money Oil Company actually receives from the first purchaser. See, e.g., Matzen v. Cities Service Oil Co., 233 Kan 846, Syl. ¶ 9, 667 P.2d 337 (1983) (“Am oil and gas lease which provides that the lessee shall pay . . . one-eighth of the proceeds if sold at the well ... is clear and unambiguous as to gas sold at the wellhead by the lessee in a good faith sale, and [the royalty holder] is entitled to no more than his proportionate share of the amount actually received by the lessee for the sale of the gas.”); Lightcap v. Mobil Oil Corporation, 221 Kan. 448, Syl. ¶ 5, 562 P.2d 1 (1977) (“Where a lease calls for royalties based on the proceeds’ from the sale of gas, the term proceeds’ means the money obtained from an actual sale and lawfully retained by the seller.”); Waechter v. Amoco Production Co., 217 Kan. 489, 512, 537 P.2d 228 (1975) (“Proceeds ordinarily refer to the money obtained by an actual sale.”). Under Oil Company’s interpretation of those cases, “proceeds” in this case means tie amount of cash-in-hand it receives from the first purchaser, after the first purchaser makes the deductions mandated by state agencies, such as the conservation fee deduction. Accordingly, Oil Company argues that it complied with the lease’s royalty clause when it sent Hockett Vs of the actual money transferred to its possession from the first purchaser.
The holdings in Oil Company’s cited cases do not support its proffered definition of “proceeds” as being the sale price less con- ■ servation fee deductions. For instance, in Waechter, this court was called upon to construe a royalty clause which utilized the same language as presented in this case. Later, a lease containing such a royalty clause would become known as a Waechter lease. See Matzen, 233 Kan. at 850; Lightcap, 221 Kan. at 458.
Highly simplified, in Waechter the lessee had a long-standing contract with an interstate gas purchaser, which was subject to federal regulatory approval. The contract paid the lessee a price per thousand cubic feet (mcf) that was allegedly less than the then current market value of gas at the wellhead. One of the questions presented on appeal was whether the term “proceeds” in the subject royalty clause meant the price per mcf in the purchase contract between lessee and purchaser which had been approved by federal regulators (sale price), or meant the prevailing market rate per mcf of a willing seller and willing buyer without regard to either the purchase contract or regulatory constraints (market value). Waechter held that “where gas is sold at the wellhead there are proceeds’ of that sale — the amount received by the seller from the purchaser.” 217 Kan. at 512.
Obviously, in defining “proceeds” in terms of the amount received by the lessee/seller, Waechter was merely distinguishing the actual gross contract rate per mcf from a hypothetical wellhead market rate per mcf. The opinion did not purport to address the impact on royalties of any deductions from the gross sale price which the purchaser might make to pay expenses attributable to the lessee/seller. To the contrary, Waechter s holding would actually support Hockett’s argument that royalties are to be computed based upon the gross sale price.
Lightcap, 221 Kan. at 448, closely paralleled Waechter. Oil Company points to Lightcap’s declaration that “the term proceeds’ means the money obtained from an actual sale and lawfully retained by the seller.” (Emphasis added.) 221 Kan. 448, Syl. ¶ 5. The reference to “lawfully retained” was inserted to address the fact that the federal regulatory agency had disapproved the contract rate as filed and had adjusted the rate downward. 221 Kan. at 451. The seller could only keep that portion of the sale price paid by the purchaser which was based on a federally-approved rate. Accordingly, the “proceeds” of the sale for royalty purposes only included that portion of the sale price that the lessee/seller was legally authorized to receive. Again, the case has nothing to do with state-mandated deductions from a federally approved gross sale price.
In Matzen, the issues again revolved around whether royalty owners were entitled to an amount in excess of their proportionate share of the sale price based upon a hypothetical market value of the gas. With respect to the treatment of “proceeds” from the sale of gas at the wellhead, the majority of the Matzen court continued “to adhere to the majority opinions in both Waechter and Light-cap.” 233 Kan. at 860-61. The case adds nothing to the question presented here. Oil Company’s citation to Holmes v. Kewanee Oil Co., 233 Kan. 544, 548, 664 P.2d 1335 (1983), is similarly unavailing.
In conclusion, what the cases cited by Oil Company teach us is that the term “proceeds” in a royalty clause refers to the gross sale price in the contract between the first purchaser and the lessee/ producer/seller, so long as the contractual rate per mcf has been approved by the applicable regulatory authority. If the lessee claims that it is entitled to compute and pay royalties based upon an amount less than the gross sale price, it must find the authority to do so somewhere other than in the lease’s royalty clause.
Postproduction Expenses
Oil Company makes a fleeting reference to an alleged “longstanding general rule in Kansas that the operator and the royalty owner proportionately share in post-production costs and fees.” It does not explain why the conservation fee should be characterized as a posi-production cost or expense. To the contrary, the fee is authorized to allow the KCC to police production operations to insure that they are being carried out appropriately. Considering that purpose, the conservation fee is more akin to a production cost. We are not persuaded by this brief argument.
Conclusion
In conclusion, we hold that the KCC is not statutorily authorized to assess the conservation fee against a royalty owner who is not also the operator of the subject well. Accordingly, the conservation fee withheld by the first purchaser is an expense attributable to Oil Company, as the well operator. In computing Hockett’s royalties, Oil Company was not permitted to deduct the amount of its conservation fee expense from the gross sale price under the contract with the first purchaser. The district court erred in granting summary judgment to Oil Company on the conservation fee issue; that ruling is reversed, and the matter is remanded for further proceedings.
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The opinion of the court was delivered by
Kingman, C. J.:
The question at issue in the ease depends on who are the heirs of Clement, the son of Clement, one of the reservees under the treaty of June 3d 1825 between the United States and the Kansas Nation of Indians. By the 6th article of that treaty one mile square each was reserved “ to Adel and Clement, the two children of Clement.” Adel was to have the first square mile on the half-breed tract on the west, and Clement the second. On the 26th of May, 1860, congress passed an act vesting the title to these lands in the reservees, and in case of the death of any reservee, then in the heirs of such deceased reservee, the heirs to be determined, by the Secretary of the Interior. On the 17th of July 1862 congress passed a joint resolution repealing so much of the act last mentioned as authorized the Secretary of the Interior to decide who are the heirs of the deceased reservees. By the treaty, the act, and the joint resolution, the fee became perfect in the several reservees and their heirs. About the year 1835 Clement the reservee died without wife or issue. His mother, Me-ha-ton-ga, died in the winter of 1861; and Clement the elder died in July 1854. His sister Adel, afterwards Mrs. Bellmard, took possession of the land, and sold it to various parties, who are the defendants in error, and are in possession of the land. "Who are really the heirs of Clement the reservee, becomes a question of much difficulty, owing to the complicated domestic relations of Clement Lassert, his reputed father. The plaintiffs in error claim that at one period of his life Clement Lassert the elder became the husband of an Indian woman named Me-ha-ton-ga, and that while they were living together as husband and wife Adel and Clement were born unto them; that afterwards they were divorced, and Lassert married Julia Eoy, by whom he had nine children. Julia, now Mrs. Pappan, and her children, and their vendees, are the plaintiffs in error in this case, claiming to be the heirs of Clement the reservee. "Whether they are such heirs depends upon the disputed questions as to the marriage of Lassert and Me-ha-ton-ga, and if they were married, then whether they were divorced prior to the marriage of Lassert and Julia Roy. If Lassert and the Indian woman were not married when she bore the children Adel and Clement, then Lassert could not be the heir of the the reservee Clement, even though he may have begotten him, until there was a failure of heirs on the maternal side. If the parties were married and not divorced, then the marriage of Lassert and Julia Roy had no validity, and neither she nor her children became the heirs of Lassert; therefore the marriage and divorce became the particular points of controversy in the action. It devolved upon the plaintiffs in error to show both facts or they would not recover. The burden of proof was on them. The testimony was voluminous, uncertain, and conflicting. It is not pretended that there was any marriage ceremony, but that the parties went together and lived together as man and wife in the Indian country, and without the limits of any organized state or territory. As to the manner of their life, there is much discrepancy which it is not necessary to detail. It is certain that Clement the elder claimed the reservees as his children, and cared for and educated them as his children, even after his marriage with Julia Roy. It is certain that he “threw off” the Indian woman. There was much evidence as to what constituted marriage and divorce among the Indian tribes, and especially among the Kansas Nation. This evidence is more curious than instructive, and like the evidence on the other points is not easily reconcilable. These questions were left to the jury, under the instructions of the court. After stating the situation of the parties and their respective claims, the court gave this instruction:
“ If the jury find from the evidence that Clement Lassert and Me-ha-ton-ga were married according to customs and usages of the Kansas Nation of Indians in the Indian country, then the laws of this state recognize such marriage as legal, and the progeny of such marriage relation is legitimate and capable of inheriting from the father; and if they further find from the evidence that after Adel and Clement were born Clement Lassert and Me-ha-ton-ga were divorced according to the customs and usages of the Kansas Nation of Indians in the Indian country, then the law recognizes such divorce as legal, so that the alleged second wife of Clement, Julia, would take on the death of her husband Clement Lassert, one-half of whatever estate descended to him from Clement the reservee in preference to Me-ha-ton-ga, and the other half would go in equal proportions to the children of Clement Lassert by Me-ha-ton-ga and his children by Julia; in other words, the legitimate children of a father inherit equally from him though their mothers be different women. The law deals not with forms and ceremonies, but looks rather to substance, having its foundation in the intention of the parties to the marriage relation; and evidence of continuous cohabitation as man and wife by a man and woman furnishes prima faoie evidence of their marriage, which may be repelled however by any evidence which tends to show that they cohabited only from motives of lust, and that a marriage in fact was not intended by either or both of the parties cohabiting.
“ On the other hand, if Clement Lassert and Me-ha-ton-ga had not, or if neither of them had, any intention of marrying, and did not in fact do so according to the customs and usages of the Kansas Nation of Indians, or by the law of any state or territory, or the custom or usage of any other tribe or nation of Indians, then Clement Lassert, nor his wife Julia, nor their children, can inherit from Clement the reservee. Again, even though Clement Lassert and Me-ha-ton-ga were married in fact, if they were not divorced according to the customs and usages of the Kansas Nation of Indians, nor by any competent authority of any state or territory, and he assumed to marry Julia Koy, and did cohabit with her for a period of years, and they had children born unto them during such cohabitation while yet Me-ha-ton-ga lived, then and in such case the marriage with Julia was void, and neither she, nor his children by her, can inherit from him.
“If there was no marriage between Clement Lassert and Me-ha-ton-ga, then the verdict must be for the defendants in possession of the premises. If there was a' marriage between them, and yet no divorce, then the verdict must be for the defendants in possession. But if there was a marriage between them, and a subsequent divorce, and you find Clement the reservee was their legitimate son, and is now dead leaving no wife or issue, that Clement Lassert subsequent to the divorce married Julia Eoy, and had children as above, then you will examine the topic of estoppel.”
Under these instructions the jury found for the defendants in possession. It is impossible to read tbe evidence and not perceive that there is evidence to-support the verdict, and at least equal in weight to that produced by the plaintiffs in error. Nor do we think that there was essential error in the instructions. If the courts are to decide that a marriage is a prerequisite to the legitimacy of children, then the court laid down the rules for the ascertainment of that fact as favorably as could be asked: See Johnson v. Johnson, adm’r, 30 Mo., 71. The instructions did not make any ceremony a necessity to the validity of the marriage, but put the question as to whether the relations of Lassert the elder and Me-ka-ton-ga were those of marriage or lust fairly to the jury, under instructions that gave them no chance to hesitate upon forms and ceremonies, but demanded their attention to the substantial facts.
II. Upon the trial of the cause the defendants, besides the question of heirship, relied upon the fact that the plaintiffs by their acts were estopped from claiming the land even if they showed themselves the true heirs; and upon this point the evidence was voluminous, and the instructions very full and minute. We might well avoid an examination of these instructions, as it is apparent that the jury decided the case without ever reaching the question of estoppel, as they were specially instructed, and the matter was emphasized by repetition that the estoppel did not in any event apply to Ellen Bevard and others, and if they found the heirship for the plaintiffs in error, they must find for the excepted persons regardless of the question of estoppel. The jury were also charged that they must first decide the question of heirship, and if the decision was in favor of the defendants in error, they need not examine the question of estoppel. They found for such defendants and against Ellen Bevard and others, against whom there was no pretense of estoppel. It is certainly apparent- from this that the jury decided the case on the issue of heirship only, and any error in the charge as to estoppel could not have injuriously affected the plaintiffs in error. We may add that we have- found nothing in the charge as to the law of estoppel that is objectionable. The court, however, after stating that the burden of proof as to heirship was on the plaintiffs in error, and that they must show their right by a preponderance of evidence, stated as to the-ground of estoppel the burden of proof was on those who asserted it, and then gave this guide to the jury:
“If the plaintiff, independent of the subject of estoppel, made out his ease by a preponderance of the evidence, it then devolves upon the defendants alleging the estoppel to make out that fact by evidence on that subject equal m weight to that of the plaintiff before a verdict can be rendered for them. If on this subject the plaintiff’s evidence preponderates also, when coupled with the antecedent finding just alluded to, then the plaintiff has the case. In other words, the plaintiff recovers' by the preponderance of the evidence on all the issues. The-defendants in possession of the premises defeat a recovery when-they interpose evidence equal in weight to that of the plaintiff!”
This is evidently not the law. The correct rule is that the obligations of proving any fact lies upon the party who relies upon that fact, and affirmatively asserts it in the pleadings. In this case the matter of estoppel was relied on by the defendants, and they were bound to establish that proposition by a preponderance of evidence, and the jury should have been so told. But for the reasons above stated, this error is not deemed material in this ease, as it is clear that the jury must have, determined the case upon the issue of heirship.
III. During the trial various exceptions were taken which we will now notice: The first of these was in the empaneling of the jury. The facts are these: Twelve men were placed in the box and sworn to answer questions as to their competency.' When the first one was called the court required the parties to' accept or challenge him for cause, or peremptorily, before any other person was called up. The statutes at that time had made no direct provisions as to the manner of the empaneling the jury. The method adopted did not prevent a fair and impartial jury from being obtained, and we cannot see that either party was prejudiced by it. See The State v. Potter, 18 Conn., 166. The present code provides a different method.
IV. Another exception was the permitting a certain Indian to testify. On his voir dire he showed that he had not an accurate idea of an oath, but plainly testified that he knew it would be wrong to tell a lie, and that he supposed he would be hanged if he did so. That he did not know the penalties of perjury, or what perjury was, but that it was bad to speak falsely, and that he believed when he died he would go above. We think the court correctly permitted the witness to testify. The exact extent of intellectual attainments necessary to qualify a person to become a witness cannot be stated precisely. The objection urged to this witness was not a want of sufficient age, or that he was an idiot, or insane, or of weak mind; but that he did not understand the nature and obligation of an oath. He was an uneducated Indian, not deficient in understanding, but uninstructed as to the nature of an oath, and mistaken as to the punishment for perjury, an act which by that name he did not know;(yetf1ie knew that it was wrong to speak falsely, and that he would be punished for so doing. Whether he believed that he would be punished in another life was a matter that could not be inquired into under our constitution. /Sis evidence afterwards given is such as confirms the opinion we have expressed as to his competency.
V. The defendants in error offered in evidence the deposition of Mrs. Julia Pappan. The plaintiffs in error moved to strike out that part of the deposition which is as follows:
“ Clement Lassert my former husband told me always that he never was married to the Indian woman, the mother of Adel and Clement the reservee. Question: State whether he told you so both before and after you married him? Answer: He did both before and after.”
The motion was made on the grounds that the evidence was hearsay, and that it was incompetent for the witness to testify to the communications made to her by her husband during the marriage. The evidence was not objectionable on the grounds that it was hearsay, for while it was literally hearsay it was of a kind authorized by law to be given where the facts of descent and relationship, or of birth, marriage, and death, are in controversy, as in this case: 1 Greenl. Ev., §§ 103, 104. The objection on tlie ground that tbe evidence was of statements made to ber by her husband is a question requiring more attention, but there will be found no great difficulty in disposing of it. The rule is well established that the wife cannot be permitted voluntarily, or compelled by authority, to give in evidence communications made to her by her husband, while the marriage relations existed. The reason of the rule is thus stated by Mr. Justice McLean in Stein v. Bowman, 13 Peters, 209: “ This rule is founded upon the deepest and soundest principles of our nature, principles which have grown out of those domestic relations that constitute the basis of civil society, and which are essential to the enjoyment of that confidence which should subsist between those who are connected by the nearest and dearest relations of life. To break down or impair the great principles which protect the sanctities of husband and wife would be to destroy the best solace of human existence.” It is evident that under this rule a portion of the evidence included in the motion was incompetent, and it is as certain that a portion of it was competent. "What Lassert told the witness before their marriage was proper evidence, and should have been admitted. How far the court wais authorized to overrule the objection because it included too much, has often been decided. In general the court is not bound to do more than respond to the motion, and in the terms in which it is made. It is not obliged to modify the propositions submitted by counsel so as to make them fit the case. If they do not fit the ease, that is cause enough to authorize their rejection. If any part of the evidence objected to is competent, the court may, on a motion to exclude the whole, exclude the part that is incompetent, but is not obliged to do so: Elliott v. Piersoll, 1 Peters, 328, 338. In this case the court could not exclude that portion of the testimony that was competent, and included in the motion of counsel, and therefore had a right to overrule the motion. Another reason may be given why the admission of the incompetent testimony could not affect this case on error: The competent testimony and the incompetent were precisely the same. What Lassert said after his marriage with the witness, was just wbat be said before. Tbe evidence given of wbat was said before marriage was competent; and even if tbe motion bad been to tbat part tbat was incompetent, and tbe court bad overruled tbe motion, tbe ruling would undoubtedly bave been error, bút as tbe same evidence would bave remained after correcting tbe error we could not say tbat tbe plaintiffs in error were prejudiced by it. Before passing from tbis point it may be. observed' tbat in Fuller v. Randall, 2 Moore & Payne, 20, tbe court beld tbat declarations by a woman of wbat ber first busband'bad. to say as to wbo would inherit bis estate, were beld admissible to show tbe affinity of tbe person so mentioned to tbe. husband. Tbis ease would support tbe ruling of tbe court on tbe ground tbat tbe whole evidence was admissible; but it does.not appear from tbe report tbat tbe question was considered -as to the-competency of the witness to prove tbe fact, but was decided only on tbe ground tbat such evidence from any proper source was competent. There were objections to-other portions-of tbe deposition of Mrs. Pappan which ar.e disposed of by tbe observations ah’eady made.
YI. Yarious witnesses .were allowed to testify tbat they bad beard Adel' Bellmard declare that she and Clement were illegitimate, or that Clement Lassert and'Me-ha-ton-ga, tbe mother, were never .married. . All; these declarations were made before suit brought, and while she was in possession of tbe land, and was setting tbe same. They were receivable in evidence, not as tbe declarations .of- a grantor .-in favor of a grantee, but to show after her death .wbat ber own views were of ber family relations: 1 Greenl.. By., §'13J. - Many more questions as to tbe admission of testimony ‘were made. Some of them are covered by-the principles already>stated; some are'immaterial, and tbe others are in. reference- ta tbe question of estoppel, and need not be examined here. -Tbe.judgment is affirmed.
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The opinion of the court was delivered by
Rosen, J.:
William E. McKnight pleaded no contest to possession of marijuana with intent to distribute and was sentenced to 30 months’ incarceration with 24 months’ postrelease supervision. Because his crime fell in a border box on the drug grid, the trial court suspended the sentence and put McKnight on an 18-month probation. When McKnight violated the terms of his probation, the court revoked McKnight’s probation and imposed a modified sentence of 22 months’ incarceration. After a discussion during the probation revocation hearing, the court concluded that postrelease supervision did not apply because McKnight’s probation was being revoked for technical violations. The court ultimately imposed a sentence of 22 months’ incarceration with no period of postrelease supervision.
Two months later, the State made an oral motion to correct an illegal sentence at a hearing with McKnight and his counsel present. The hearing was continued to allow the parties to review the transcript from the probation revocation hearing and conduct additional research. Two weeks later, with all parties present, the trial court found at the probation revocation hearing that “I mistakenly believed that there should have been no supervision in this particular case. I did not make a conscious decision to modify Mr. McKnight’s sentence by not requiring post-release. It was more that I did not believe I could order post-release because it was a technical violation of probation.” The court then imposed the modified 22 months’ incarceration with 24 months’ postrelease supervision.
The Court of Appeals held that “[t]he mandatory period of post-release supervision may not be reduced upon probation revocation unless K.S.A. 2008 Supp. 22-3716(e) is applicable to the offender.” State v. McKnight, 42 Kan. App. 2d 945, Syl. ¶ 4, 219 P.3d 825 (2009). Therefore, the Court of Appeals found that the sentence originally imposed upon probation revocation was illegal and the trial court properly corrected the illegal sentence upon the State’s motion. The Court of Appeals affirmed the trial court. McKnight, 42 Kan. App. 2d at 948.
Mootness
As an initial matter, the State filed a notice of change in custodial status on December 17,2010, alleging that the Kansas Department of Corrections website, Kansas Adult Supervised Population Electronic Depository (KASPER), shows that McKnight was discharged from his sentence on October 12, 2010. We declined to issue a show cause order; instead, the notice was noted by the court on January 7, 2011. The only issue raised on appeal and in the petition for review is the sentencing issue regarding the trial court’s reinstatement of the postrelease supervision period. If McKnight has been discharged and is no longer subject to postrelease super vision, the appeal would be moot. The State, however, did not argue that the case is moot, file a motion to dismiss based on a mootness argument, or provide any evidence beyond the notice filed in December.
“The general rule is that an appellate court does not decide moot questions or render advisory opinions. The mootness doctrine is one of court policy which recognizes that it is the function of a judicial tribunal to determine real controversies relative to the legal rights of persons and properties which are actually involved in tire particular case properly brought before it and to adjudicate those rights in such manner that the determination will be operative, final, and conclusive.” Board of Johnson County Comm’rs v. Duffy, 259 Kan. 500, Syl. ¶ 1, 912 P.2d 716 (1996).
In State v. Upham, No. 97,961, 2008 WL 1847703 (Kan. App. 2008) (unpublished opinion), the Court of Appeals dismissed an appeal where the only issue was whether the trial court properly considered placement in Labette Correctional Conservation Camp because the defendant had finished the prison portion of the sentence. In Upham, the State moved to add to the record the KAS-PER printout and a form from the Kansas Department of Corrections indicating that the defendant had been released on supervised parole. The defendant did not respond to the State’s mootness argument or deny that he had completed the contested part of his sentence. As a result, the Court of Appeals dismissed the appeal as moot.
Unlike Upham, the State made no further effort to argue or prove that this appeal is moot. As a result, the record will not support a holding that the appeal is moot. Further, we must consider whether the issue is one that is likely to reoccur.
“An appellate court may sometimes elect to entertain issues which, although moot, are subjects of real controversy and include issues of statewide interest and importance. Where a particular issue, although moot, is one capable of repetition and one of public importance, an appellate court may consider the appeal and render an opinion.” Duffy, 259 Kan. 500, Syl. ¶ 2.
Whether the trial court, at a probation revocation hearing, can impose a modified sentence that does not include a term of post-release supervision is an issue that is likely to reoccur. Due to the length of time to complete a direct appeal, file a petition for review, and get the case docketed before this court, the issue is unlikely to arise in a case that is not moot.
Any Lesser Sentence
K.S.A. 22-3716(b) authorizes a trial court revoking a defendant’s probation to “require the defendant to serve the sentence imposed, or any lesser sentence.” McKnight argues that the trial court, at the probation revocation hearing, had the statutory authority to impose a sentence that did not include postrelease supervision as a lawful “lesser sentence.” If the trial court imposed a lawful lesser sentence, the court was without jurisdiction to later modify that sentence. See, e.g., State v. Ballard, 289 Kan. 1000, 1010-11, 218 P.3d 432 (2009). The State argues that postrelease supervision is mandated by K.S.A. 22-3717(d)(l)(B) and that the only exception to postrelease supervision at a probation revocation hearing is for an offender to qualify for the K.S.A. 22-3716(e) exception. If the trial court imposed an illegal sentence at the probation revocation hearing, the court had jurisdiction to correct that sentence under K.S.A. 22-3504(1).
Once a legal sentence is pronounced from the bench, the trial court does not have jurisdiction to modify the sentence. State v. McCoin, 278 Kan. 465, 468, 101 P.3d 1204 (2004). “A sentence is effective upon pronouncement from the bench, regardless of the court’s intent at the time the sentence is pronounced.” Abasolo v. State, 284 Kan. 299, 310, 160 P.3d 471 (2007). On the other hand, K.S.A. 22-3504(1) gives the court jurisdiction to correct an illegal sentence at any time. This court may review a claim by either party that the sentence imposed was an illegal sentence. See State v. McCarley, 287 Kan. 167, 173-76, 195 P.3d 230 (2008).
“An illegal sentence is a sentence imposed by a court without jurisdiction; a sentence which does not conform to the statutory provision, either in character or the term of the punishment authorized; or a sentence which is ambiguous with regard to the time and manner in which it is to be served.”
“Whether a criminal sentence is illegal, e.g., imposed without jurisdiction, is a question of law with unlimited review.”
“The sentencing of a criminal defendant is strictly controlled by statute.”
“The existence of jurisdiction is a question of law over which this court’s review is unlimited.” McCarley, 287 Kan. 167, Syl. ¶¶ 1, 2, 5, and 8.
“Interpretation of a sentencing statute is a question of law and the appellate court’s standard of review is unlimited.” State v. Riojas, 288 Kan. 379, Syl. ¶ 7, 204 P.3d 578 (2009).
K.S.A. 22-3716(b) authorizes a trial court revoking a defendant’s probation to “require the defendant to serve the sentence imposed, or any lesser sentence.” K.S.A. 22-3716(e) exempts certain offenders from serving postrelease supervision when their probation was revoked for technical violations rather than commission of a new crime. This section does not apply to offenders “whose offense falls within a border box of either the sentencing guidelines grid for nondrug or drug crimes.” K.S.A. 22-3716(e). McKnight does not qualify for the K.S.A. 22-3716(e) exception because his offense was a border box crime.
The Court of Appeals concluded that “[t]he mandatory period of postrelease supervision may not be reduced upon probation revocation unless K.S.A. 2008 Supp. 22-3716(e) is applicable to that offender.” McKnight, 42 Kan. App. 2d at 948. This court has not ruled on whether tire mandatory period of postrelease supervision may be reduced at a. probation revocation hearing as part of a “lesser sentence” imposed pursuant to K.S.A. 22-3716(b). The Court of Appeals, however, has addressed this issue in other cases.
In State v. Bishop, No. 99,928, 2009 WL 744193 (Kan. App. 2009) (unpublished opinion), the Court of Appeals considered a situation strikingly similar to that presented in this case. At a probation revocation hearing, the trial judge imposed no postrelease supervision term because Bishop’s probation was revoked for technical violations. Bishop, 2009 WL 744193, at *1. Like McKnight, Bishop’s crime fell in a border box of the sentencing guidelines drug grid. The panel rejected Bishop’s argument that the sentence without a term of postrelease supervision was a lawfully imposed “lesser sentence” under K.S.A. 22-3716(b). Bishop, 2009 WL 744193, at *2.
To reach this conclusion, the Court of Appeals relied upon K.S.A. 21-4705(c)(2), which states:
“In presumptive imprisonment cases, the sentencing court shall pronounce the complete sentence which shall include the prison sentence, the maximum potential reduction to such sentence as a result of good time and the period of post- release supervision at the sentencing hearing. Failure to pronounce the period of postrelease supervision shall not negate the existence of such period of postrelease supervision.“ (Emphasis added.)
The Court of Appeals also looked to K.S.A. 22-3717(d)(l)(B), which states:
“(d)(1) Persons sentenced for crimes, other than off-grid crimes, committed on or after July 1, 1993, or persons subject to subparagraph (G), 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 as follows:
“(B) Except as provided in subparagraphs (D) and (E), persons sentenced for nondrug severity levels 5 and 6 crimes and drug severity level 3 crimes must serve 24 months, plus the amount of good time and program credit earned and retained pursuant to K.S.A. 21-4722, and amendments thereto, on postrelease supervision.” (Emphasis added.)
Further, the Court of Appeals was persuaded by State v. Johnson, 39 Kan. App. 2d 438, 180 P.3d 1084, rev. denied 286 Kan. 1183 (2008). In Johnson, the Court of Appeals dismissed an appeal as moot because the defendant had served the entire incarceration portion of his sentence. The panel rejected the defendant’s contention that, upon remand for another probation revocation hearing, he could argue for a reduction in his postrelease supervision time because K.S.A. 22-3716(b) does not address postrelease supervision. The Court of Appeals noted that a trial court could extend the postrelease supervision period upon a finding that the crime was sexually motivated, but the statute did not allow for a reduction in the postrelease supervision term. Johnson, 39 Kan. App. 2d at 442.
We disagree. The analysis of K.S.A. 22-3716(b) must begin with the plain language of the statute. “The fundamental rule to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained. [Citation omitted.] Intent of the legislature is to be derived in the first place from the words used.” McCarley, 287 Kan. at 178. The relevant language to be interpreted is:
“[I]f the violation is established, the court may continue or revoke the probation, assignment to a community correctional services program, suspension of sentence or nonprison sanction and may require the defendant to serve the sentence im posed, or any lesser sentence, and, if imposition of sentence was suspended, may impose any sentence which might originally have been imposed.” (Emphasis added.) K.S.A. 22-3716(b).
K.S.A. 22-3716(b) authorizes a trial court revoking a defendant’s probation to “require the defendant to serve the sentence imposed, or any lesser sentence,” but the statute does not go on to define “lesser sentence.” If imposition of the sentence was suspended, however, the statute limits the court’s discretion to “impose any sentence which might have originally been imposed.”
At initial sentencing, the trial court does not have discretion to impose a term of postrelease supervision that is shorter than the period mandated by statute. Ballard, 289 Kan. at 1012; State v. Baber, 44 Kan. App. 2d 748, 754, 240 P.3d 980 (2010). In Ballard, this court considered whether a trial court had jurisdiction to impose a shorter term of postrelease supervision along with a departure sentence. Ballard pleaded no contest to aggravated indecent liberties with a child pursuant to a plea agreement in which he and the State jointly requested a downward durational departure, from off-grid to the grid block appropriate for a severity level 3 person felony. Ballard, 289 Kan. at 1002. At sentencing, the court imposed a downward durational departure sentence of 55 months, with 36 months’ postrelease supervision based on the departure to the grid. Ballard, 289 Kan. at 1003. This court ultimately concluded that Ballard’s initial sentence of 36 months’ postrelease supervision did not conform to the statutory provision and was therefore illegal. Because the sentence was illegal, the trial court had jurisdiction to correct the illegal sentence and impose the lengthier lifetime post-release supervision. Ballard, 289 Kan. at 1012.
In cases where a sentence was announced, but probation was granted, the court “may require that defendant serve the sentence imposed, or any lesser sentence.” The phrase “any lesser sentence” is not defined, and the “lesser sentence” is not limited to that which might have been imposed at sentencing. A plain language reading of K.S.A. 22-3716(b) gives the trial court the authority to impose any sentence less tiran that originally imposed. Such a “lesser sentence” might be a shorter prison sentence, a shorter term of post-release supervision, or any combination thereof.
If the legislature intended to limit the trial court’s discretion to imposing only a lesser prison sentence, K.S.A. 22-3716(b) should specifically state “any lesser prison sentence” or define what “lesser sentence” might be imposed by the court. Arkansas, for example, provides that at a probation revocation hearing “the court may revoke the probation and require the probationer to serve the sentence imposed or any lesser sentence which might have been originally imposed.” (Emphasis added.) Ark. Code Ann. § 16-93-402(c)(5) (2010). Such language would clearly limit the trial court’s imposition of a lesser sentence that includes the statutory post-release supervision term.
Contrary to the State’s position, K.S.A. 22-3716(e) does not require that postrelease supervision be imposed at a probation revocation hearing. K.S.A. 22-3716(e) describes a number of situations in which a period of postrelease supervision cannot be imposed at a probation revocation hearing. This section does not require that a period of postrelease supervision be imposed in all other circumstances.
At McKnight’s probation revocation hearing, the trial court imposed a legal lesser sentence of 22 months’ incarceration with no postrelease supervision. Whether the trial court mistakenly imposed no postrelease supervision due to a misunderstanding of K.S.A. 22-3716(e) is not relevant. “A sentence is effective upon pronouncement from the bench, regardless of the court’s intent at the time the sentence is pronounced.” Abasolo, 284 Kan. at 310. The trial court imposed a legal sentence; therefore, the court did not have jurisdiction to later modify that sentence. See McCoin, 278 Kan. at 468.
Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed and the sentence imposing postrelease supervision is vacated and the sentence originally imposed at the probation revocation hearing of 22 months’ incarceration with no postrelease supervision is affirmed.
Moritz, J., not participating.
Daniel A. Duncan, District Judge, assigned. | [
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The opinion of the court was delivered by
Nuss, C.J.:
Derrick Freeman filed a motion to withdraw his nolo contendere pleas after discovering his criminal history score was worse than expected, which could cause a longer sentence of imprisonment. After the district court denied his motion, the Court of Appeals affirmed. We granted Freeman’s petition for review under K.S.A. 20-3018(b), obtaining jurisdiction under K.S.A. 60-2101(b). We hold the district court erred in denying his plea withdrawal motion; we reverse, vacate the sentence, and remand.
Facts
In case 2007 CR 717, Freeman agreed to plead nolo contendere to one count of attempted aggravated robbery, a level five person felony, one count of nonresidential burglary, a level seven nonperson felony, and one count of criminal damage to property, a level nine nonperson felony. He also agreed to plead nolo contendere to one count of misdemeanor theft in case 2008 CR 52. In exchange for his pleas, the State agreed to dismiss the remaining charges of aggravated battery, residential burglary, theft, criminal damage to property, failure to stop and remain at the scene of a property damage accident, and failure to give notice of accident.
During plea negotiations, the State originally had believed Freeman’s criminal history score for the primary 2007 CR 717 case was a “B,” while Freeman believed his score was the less serious “C.” As a result, the assistant county attorney, with Freeman’s counsel in his office, then called court services to learn Freeman’s actual criminal history. According to defense counsel’s later motion: “At that time, court services informed the assistant county attorney that defendant did appear to be in criminal history category ‘C,’ as he had claimed.”
According to Freeman, he agreed to plead nolo contendere because a criminal history “C” would mean he would only be facing a presumptive sentence of 71 months under the Kansas Sentencing Guidelines Act. No written copy of the plea bargain appears in the record, and the parties stated at oral argument before this court that no written plea agreement was ever drafted.
At the February 27, 2008, plea hearing, the district judge asked Freeman’s counsel, “Where does he fall on the sentencing guidelines?” Counsel replied:
“We think he’s going to get 54, make sure I am right here, 57 months on the first case [2007 CR 717] that I named, and then because he[is] in C box. And then the second one [2008 CR 52] he will be in B box, 14 months is what we are anticipating. And totally 57 and 14 for 71 [months].”
The judge made no further inquiry about Freeman’s criminal history or his presumptive sentences per sentencing grid boxes. He also never advised Freeman of the maximum penalties that could be imposed upon acceptance of the plea for his crimes under K.S.A. 22-3210(a)(2). Rather, the judge accepted Freeman’s pleas, found him guilty of the charges, and dismissed the remaining counts.
Three weeks later, on March 18, Freeman’s presentence investigation (PSI) reports prepared by court services now calculated his criminal history score in 2007 CR 717 as “B” and in 2008 CR 52 as “A.” Because of the increased severity in Freeman’s criminal history scores, the PSI showed that the grid box’s middle sentence for his primary offense in 2007 CR 717 increased from 57 to 120 months and his middle sentence in 2008 CR 52 increased from 14 to 16 months. After learning from the PSI that his criminal history scores were worse than expected, Freeman filed a motion to withdraw his pleas because they were “unknowing and involuntary.”
In his motion, Freeman contended the parties mistakenly believed he would be facing a controlling sentence of 57 months in 2007 CR 717 and 14 months in 2008 CR 52 for a total of 71 months. He contended he would not have entered into the plea agreement had he known his actual criminal history was “B” in 2007 CR 717.
At the plea withdrawal hearing, Freeman’s counsel stated that he was going to stand on the written motion, but believed the plea hearing “was pretty much done by the book.” The prosecutor responded, “I don’t disagree with what [defense counsel] said in his plea as far as we negotiated that and talking about it being a Class C. [I] [o]riginally thought Mr. Freeman was a category B for sentencing.” He tiren argued that Freeman nevertheless “should have been aware of what his record was.” The district judge denied the motion, stating, “I reviewed the transcript and also the motion and there are no grounds whatsoever to justify the Court allowing Mr. Freeman to withdraw his plea.”
After the judge denied his motion, Freeman requested a downward departure to 71 months. He argued he would not have pled if he had known he was going to receive 136 months, stating, “I pled to 71 months because I was trying to huriy up and get it done before I have a baby due and I have three other boys. My mama says she needs me and that’s why I took the 71 months.” The judge denied Freeman’s departure request and sentenced Freeman to concurrent sentences of 120 months in 2007 CR 717 and 16 months in 2008 CR 52.
Freeman timely appealed, and the Court of Appeals affirmed in State v. Freeman, No. 100,793, 2009 WL 1140347 (Kan. App. 2009) (unpublished opinion). We granted Freeman’s petition for review.
Analysis
Issue: The district court erred in denying Freeman’s motion to withdraw pleas.
Freeman argues he should have been allowed to withdraw his pleas because he was misled by his counsel and the State in accepting the plea deal due to their mistaken belief that his presumptive sentence was 71 months. He further contends he accepted the plea deal for this sentence because he wanted to serve the minimal amount of time to be able to support his family. Freeman finally points out the judge failed to advise him of the maximum sentence as required by K.S.A. 22-3210(a)(2) and (3). The State responds that Freeman should not be able to withdraw his plea because “his plea is not rendered involuntary by his reliance on erroneous criminal history information.”
Standard of Review
We recently articulated our standard of review in State v. Schow, 287 Kan. 529, 541, 197 P.3d 825 (2008):
“In reviewing a presentence denial of a motion to withdraw plea, we employ an abuse of discretion standard of review, as suggested by the language of the statute. Further, we require the defendant to bear the burden of establishing the abuse of discretion. State v. Harned, 281 Kan. 1023, 1042, 135 P.3d 1169 (2006). However, in order for the district court’s decision to receive the full measure of that standard’s deference, it must have been based upon a correct understanding of the law.”
Discussion
As we acknowledged in Schow, K.S.A. 22-3210(d) provides that a guilty or nolo contendere plea may be withdrawn before sentencing “for good cause shown.” Kansas courts review three factors commonly known as Edgar factors, after State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006), when considering whether the requisite “good cause” has been shown: (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) (collecting cases discussing the Edgar factors). While the Edgar factors are “viable benchmarks for judicial discretion,” we made clear they should not be relied on to the “exclusion of other factors.” Aguilar, 290 Kan. at 512. See also State v. Anderson, 291 Kan. 849, 856, 249 P.3d 425 (2011) (“The district court also may consider other factors when determining whether good cause is shown.”).
The Court of Appeals panel interpreted Freeman’s appellate arguments as two-fold: (1) the district court failed to inform him of the possible maximum penalty of 120 months prior to entering his plea as required by K.S.A. 22-3210(a)(2); and (2) “he was induced into entering into the plea agreement out of fear that he needed to serve the least amount of time for his family.” Freeman, 2009 WL 1140347, at *1.
The panel rejected both arguments. Under the panel’s interpretation, Freeman’s appellate position simply did not include a contention regarding mutually mistaken belief about his criminal history. While the panel acknowledged that particular argument had been raised at the district court, it appeared to essentially declare that the argument had been abandoned by Freeman on appeal:
“In contrast to his claims on appeal, the record discloses that Freeman’s arguments to the lower court centered solely around the issue of whether the parties’ mistaken belief about his criminal history constituted good cause to allow his plea to be withdrawn. We note this issue is controlled by our Supreme Court’s recent decision in Schow. Notioithstanding, limiting our review to his present claims in this appeal, we find that Freeman has failed to meet his burden of establishing the existence of good cause for permitting the plea withdrawal.” (Emphasis added.) Freeman, 2009 WL 1140347, at “2.
We disagree with the panel that Freeman abandoned his district court contention that the mutually mistaken belief about his criminal history constituted good cause to withdraw his plea. While Freeman’s brief is not a model of precision, it sufficiently raises the issue for us to consider. It states: “In addition to [1] the failure to apprise the defendant of the possible maximum term faced as a result of the plea, [2] and each of the party’s [sic] mistaken belief as to the defendant’s criminal history score, [3] the defendant asserted that he only took the plea and 71 month deal due to the then upcoming birth of his child and three other children at home.” His brief further states: “The defendant contends that he was misled into accepting the plea deal of the state. It was the state’s assumption, indeed all party’s [sic] assumption, in making the plea arrangement that the defendant faced a total of 71 months.” Cf State v. McCaslin, 291 Kan. 697, 713, 245 P.3d 1030 (2011) (stating that while appellant’s argument was not in depth, it was “sufficient to preserve the issue for our review”).
We agree with the panel, however, that the resolution of this issue on the merits is controlled by Schow. There, the State and the defendant were mutually mistaken as to his criminal history score before he pled guilty. When his correct score was discovered and defendant was subjected to a higher sentence, he filed a motion to withdraw his guilty plea. His motion was denied by the district court and the Court of Appeals affirmed the denial. We reversed, agreeing that a defendant could not meet his or her statutory good cause burden by simply declaring that the parties were mutually mistaken about the criminal history score. We acknowledged, however, the circumstances giving rise to the mistake could implicate the factors listed in Edgar, 281 Kan. at 36, and should be available for consideration by the court.
We held:
“[A] defendant seeking to withdraw his or her plea prior to sentencing has the burden to show the existence of good cause for permitting the plea withdrawal. In determining the existence of good cause, the district court should consider whether: (1) the defendant was represented by competent counsel, (2) the defendant was misled, coerced, mistreated, or unfairly taken advantage of, and (3) the plea was fairly and understandingly made. Where a defendant has pled guilty pursuant to a plea agreement which was based upon a mutual mistake as to defendant’s criminal history score, the district court may consider the circumstances giving rise to the mutual mistake to the extent they may implicate the factors applicable to the existence of good cause to withdraw a plea.” Schow, 287 Kan. at 546.
Here, the district judge summarily denied Freeman s plea withdrawal motion. There was no Edgar-style analysis before ruling. See Schow, 287 Kan. at 546. Accordingly, as in Schow, we must conclude the judge’s decision was not based on a correct understanding of the law. More particularly, also as in Schow, we must conclude he abused his discretion because he failed to “consider the circumstances giving rise to the mutual mistake” and their effect on the “factors applicable to the existence of good cause to withdraw a plea.” 287 Kan. at 546.
Accordingly, we reverse the denial of Freeman’s motion to withdraw plea and remand for the district court to apply the appropriate legal standards to determine whether Freeman established good cause and then to exercise its discretion in ruling on his motion.
Judgment reversed, sentence vacated, and case remanded for further proceedings. | [
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The opinion of the court was delivered by
Kingman, O. J.:
In this case the petition is as follows: “ Said plaintiff Charles C. Gardiner complains of said defendant, and says that on the 31st of October, 1867, said 'defendant did carelessly and negligently, and without the fault of said plaintiff, burn up and destroy and damage the following prop erty of said plaintiff: 30 tons of hay, of value $4 per ton, $120; 320 rods post-and-rail fencing, of value $1 per rod, $320; 20 acres growing timber, damage $10 per acre, $200 — total, $640. Wherefore plaintiff prays judgment for the sum of $300 against defendant.” To this petition defendant answered with a general denial.
By the common law there was no redress unless the person who set the fire did so for the purpose of injuring the property of another, or was guilty of negligence in setting the fire, or in not preventing it from spreading beyond his own land. Willfulness or negligence were essential elements in the act, and without one or the other there could be no recovery. To remedy this inconvenience was the object of section 2 of chap. 102 Comp. Laws, which is as follows:
“ Sec. 2. If any person shall set on fire any woods, marshes or prairies, so as thereby to occasion any damage to any other person, such person shall make satisfaction for such damage to the party injured, to be recovered in an action.”
This section is purely remedial. It does not abrogate the rule of the common law, but in a certain class of cases therein mentioned substitutes another test of liability in which neither willfulness nor negligence form a necessary element. A party aggrieved may seek his remedy either under the statute or under the common-law rule, and probably both at the same time in the same action. If fire is set to woods, marshes, or prairies, then there can be a recovery under the statute, and the test of liability will be, did the defendant set the fire. If fire is set to anything else, then there is added the question of willfulness or negligence.
The pleader in this case evidently drew the petition with reference to the common-law, though the third and last item in his petition may and probably does properly constitute a charge under the statute. But the first two are not in anywise acts under the statute. The injuries alleged are not to “woods, marshes, or jrrairies.” Nor is the injury alleged to be the result of fires set to woods, marshes, or prairies. The instructions of the court below are given upon the theory that the petition is wholly drawn under section two above quoted, and therein are fatally erroneous. The instructions are not a correct guide to the jury to decide the issues they were to try; for they totally exclude the elements of negligence or willfulness from the consideration of the jury, not only as to the third item in the petition but as to the other two. This general error pervading the instructions it is not necessary to examine them in detail. The judgment is reversed and a new trial awarded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Kingman, C. J.:
Four errors are assigned to which attention will be given in their order. The court excluded a copy of a letter written by commissioner "Wilson to Hon. W. E. Niblack as to the status of the land in controversy. This was right. The letter was to a private individual. Its contents «did not tend to prove any facts; they only showed the opinion of an officer of the government as to the title to certain lands. The act of congress referred to only makes an exemplified copy of a paper evidence where the paper itself would be evidence; and the commissioner’s letter would not be evidence in this case.
II. The witness Abbott was asked the question, “Did Graham Rogers, one of the acting chiefs of the Shawnees, in Washington City, before the adoption of the fifth modified rule, execute a deed to you of the land in controversy?” Hie court refused to permit the question to be answered. There is no explanation of the use that could be made of the answer, nor can we perceive any relevancy. It did not show or tend to show that the title was transferred from the Shawnee tribe to Abbott. If there was such a deed made, and it conveyed no title, as both parties contend, then even the introduction of the deed itself, if one existed, became immaterial.
III. The court refused to permit Mr. Eoberts, the agent, to testily whether he knew that the defendants were in possession and occupancy of the land at the time of the sale, and whether he promised them the land should not be sold till he had given them notice and a preference. Answered either way the testimony would have had no bearing upon the case under the issues on trial. Again, the questions were not proper cross-examination of the witness: and if considered as in chief, were not in proper form. The record is silent as to the grounds of objection, or the reason of the court. In any view the questions were immaterial and irrelevant.
IY. The only other error alleged is that the judgment was for the plaintiff when it should have been for the defendants. The cause was tried by the court without the intervention of a jury, and a judgment rendered for the plaintiff, to which defendants excepted. The questions presented to this court are purely questions of law, the counsel upon either side in then-arguments conceding the facts as they appear of record. The action was for the recovery of four hundi-ed acres of land in Johnson county. The plaintiff below (defendant in error in this court) claiming by a deed from Graham Eodgers and Charles Tucker, chiefs of the Shawnee Nation, to him. . The consideration of the deed is $2,000. It is attested by James E. Abbott and E. S. Eoberts, and acknowledged before Eoberts the U. S. Indian agent for the Shawnees. On the 5th of January, 1870, the acting Commissioner of Indian Affairs submitted this deed to the Secretary of Interior for his approval, and on the 6th of January, 1870, the deed was approved by the Secretary of the Interior. It is claimed that this deed when so made and acknowledged vested the legal title to the land in the defendant in error. The plaintiffs in error admit the regularity of the steps taken to procure the deed, and that it is done in conformity with the fifth modified rule of the Department of the Interior, but deny the power of the Department to dispose of the'lands, on two grounds: First, that the lands are part of the “ surplus lands ” of the Shawnee tribe, and are by the joint resolution of congress of 1869 to be sold to the settler occupying said lands, and having made improvements thereon, at the price of $2.50 per acre; (16 Stat. at Lai’ge, p. 53:) Second, That the Department had no power under the laws and treaties to dispose of the lands, unless it was under the joint resolution referred to: "Whether the decision of the first question be one way or the other, the proceeds of the sale go alike to the use of the Shawnee Indians as a nation, so that so far as they are concerned it makes no difference how it is decided, except as to the amount. If the plaintiffs in error are right in their construction of the laws and treaties, the Indians will get $2.50 per acre for the land when it is sold under the joint resolution of 1869. If the title of the defendant in error is good, then the Indians have already to their credit on the sale made to him, and paid to the proper department for their use, $5.00 per acre. The land is probably worth much more than either sum, so that to the parties the decision is one of much greater importance.
It is admitted by both parties that the land in controversy is a part of the two hundred thousand acres ceded to the Shawnee Indians by the second article of the treaty of 1854, between the government of the United States and the Shawnee tribe of Indians. (10 U. S. Stat. at Large, 1053.) "We are first to determine what is the status of this land, and this demands careful consideration of the whole treaty; but we think the grounds of our decision may be briefly stated so as to be understood. It appears from the record, and is conceded in argument, that the land in controversy was double allotment land made to Lewis Hayes and George Sylcambus, and that they have since received other lands. The plaintiffs in error contend that these lands have now become a part of the surplus land set apart for the absentee Shawnee Indians, and are covered by the joint resoluof congress of 1869. The defendant in error insists that they remained allotted lands, and were subject to the disposal of the department of the government having charge of Indian affairs. The condition of the lands is anomolous, and one not contemplated by the treaty. That instrument makes no positive provision for a case of double allotments, such a contingency not having suggested itself to the parties. The treaty provides that there is to be a certain specified quantity of land out of the two hundred thousand acres given, first, to the churches, societies, and schools, and a few individuals named in the treaty, on certain terms; second, two hundred acres are to be allotted to each Shawnee Indian who shall elect to hold his land in severalty; third, those Indians of the Black Bob and Long-Tail bands who shall prefer to hold their lands in common are to have land amounting to two hundred acres each set apart in one body to be held in common; and after all these selections are made it is supposed there will be a surplus, which shall be set apart in one body of land, in a compact form, under the direction of the president of the United States, for the use of such absentee Indians of the tribe as shall return within a given time; and what of this tract is not so taken by the absentees within the stipulated time is to be sold for the benefit of the whole tribe. In these different ways the whole of the two hundred thousand acres ceded to the Shawnees by the treaty were to be appropriated. All these various selections were made in due time, and by the proper authorities, and the same became fixed by the selections made. It then became known that there was a small portion that had been double allotted, including the land in controversy. The different societies and individuals had all the land they were entitled to. The Indians who chose had their head-rights. Those who preferred had their proportion assigned them in common. The residue had been set apart for the absentees in one body in a compact form under the direction of the president of the United States. These different selections and lists of land were required to be made out within certain periods designated in the treaty, and were so made out, aud thus the status of the laud became established. Its character was fixed. The absentee lands were set apart by the president as surplus land, in a compact form as the treaty required. The land in controversy is seven or eight miles from that body. It is probably true that if no mistake had been made the body of the absentee lands would have been increased by eight hundred acres; but it is obvious that the identical land in question never could, under the provisions of the treaty have been a part of the “ surplus,” because the surplus was to be in one body in a compact form. It is not denied that the mistake is one that could be corrected by the courts if any one of the parties to the treaty had been the sufferers thereby. Each of the classes of beneficiaries have received all that class was entitled to if no mistake had been made. The surplus was more than sufficient to meet the requirements of the absentees, leaving a large residue to be disposed of for the benefit of the Shawnee nation. The tract in dispute also belongs to the nation, but not as “ surplus ” lands under the treaty. No provision is made for double allotments. They are outside the treaty. The status of the land became fixed by the selections as made and recorded, and the nearest that we can come to the spirit of the treaty is to hold them as allotted lands not taken by the allottees, and thus become the property of the nation to be disposed of under the direction of the government. This must be the view taken by the department of the Interior in making provision for the sale of the land under the fifth modified rule in accordance with which the defendant in error purchased the land.
The question remains, had the chiefs of the Shawnee nation acting for the nation, the right to dispose of these lands, with the consent of the Secretary of the Interior? At an early day the principle was adopted that the Indians could not dispose of their lands without the consent of the government. This consent may be given by treaty or by act of congress, and we know of no other way. Undoubtedly the consent may be given by the executive, in the execution of the terms of a treaty, or in carrying out the provisions of a statute, when this power is given in the treaty or statute, for then it is in fact the consent of the treaty-making or legislative branch of the government, expressed through the executive. The learned counsel for the defendant in error, as we understand him, goes one step further, and claims that this consent may be given “ as in this case by the executive branch of the government acting under and by virtue of the general powers conferred on the executive.” If by this is meant that the Indians may dispose of their land by consent of the executive where the executive by the provisions of any treaty or law is authorized to give such consent, then it is undoubtedly true; but if it is to be understood as asserting the doctrine that the consent of the executive without the previous authorization thereto of the law-making department is all that is necessary, then it asserts a doctrine contrary to the fundamental principles and the uniform practice of the government, and cannot be sanctioned. No precedent or authority for such a position is referred to, nor has any fallen under our observation.
We have not been able to find where the executive has been authorized by law to give his consent to the disposal by the Shawnee chiefs of the land belonging to the nation. We are referred to several provisions of laws and treaties which wo will notice briefly. The act of congress of July 9th, 1832, 1 Brightley’s Digest, 421, is referred to; but surely it needs no argument to show that the power to direct and manage Indian affairs, and all matters arising out of Indian relations, does not authorize the sale or consent .to the sale of the Indian lands. In all the years that it has been in force, no such construction has been given it. The ninth article of the treaty of May 10th, 1854, provides for issuing patents to such Shawnees as may have made separate selections, but nowhere makes any provision for the lands of the Shawnees except for such as are absolutely taken by individual members of the tribe, and held in severalty, and none others. The act of congress of March 3, 1859, (11 U. S. Stat. at Large, 431,) authorizes the Secretary of the Interior to cause patents to issue to such Indians as have made selections, such patents to be under such guards and. restrictions as may be prescribed by said secretary. These are all the acts of congress or treaties that have any bearing on the questions that have been pointed out or met the observation of the court, and none of them are such as in our view give any validity to the sale made by the chiefs to the defendant in error. If the foregoing propositions are correct, then neither of the parties to this action has any right to the land; it still remaining the property of the Shawnee tribe of Indians, to be held or disposed of as the government and the Shawnees may agree. It is not a part of the surplus, and therefore not covered by the joint resolution of congress referred to, and therefore the plaintiffs in error have no rights in the land. The title of the defendant in error is not such as the law sanctions, and therefore he could not recover. It follows that the judgment of the court below is erroneous, and must be reversed.
All-the Justices concurring. | [
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Malone, J.:
Julian L. Bryant appeals the district court’s order requiring him to pay restitution. Bryant claims the district court lacked jurisdiction to order restitution because the district court failed to hold a restitution hearing before imposing sentence as required by K.S.A. 22-3424(d). In the alternative, Bryant claims the district court lacked jurisdiction to order restitution because the amount of the restitution was not determined within 30 days of sentencing as initially ordered by the court. We hold the procedure set forth in K.S.A. 22-3424(d) is directory rather than mandatory and, thus, the district court retained jurisdiction to determine the amount of Bryant’s restitution after sentencing. We further conclude the district court did not abuse its discretion in allowing the State more than 30 days from sentencing to determine the amount of Bryant’s restitution.
On April 11, 2005, Bryant pled no contest to one count of aggravated robbery and pled guilty to seven counts of theft, one count of aggravated burglary, two counts of forgery, and one count of burglary, in three consolidated cases. On June 1, 2005, the district court sentenced Bryant to a controlling term of 48 months’ imprisonment. At the sentencing hearing, immediately after the district court imposed the term of Biyant’s sentence, the court started to announce a restitution order based on the information the court had been provided at the hearing. However, the State interrupted the court and requested a 30-day extension of time to determine the proper amount of restitution. The district court granted the extension and stated it was giving the parties 30 days to reach an agreement on restitution, and if the parties could not agree, then the court would schedule a hearing to determine the amount of restitution. Defense counsel did not object to this procedure. The journal entries of sentencing filed by the district court stated: “The Court finds that restitution is owed in this case in an amount to be determined within 30 days, and advises the Kansas Parole Board that restitution should be made a condition of defendant’s post release supervision.”
On September 30, 2005, nearly 4 months after the sentencing, the State filed a motion to schedule a restitution hearing. The mo tion stated that Bryant’s original attorney had left the public defender’s office and the assistant district attorney, who had appeared at Bryant’s sentencing hearing, went on an extended medical leave soon after the sentencing. The motion also indicated the State had sent a proposed restitution order to the public defender’s office on September 6, 2005, but the public defender’s office did not agree to the order.
The district court held a scheduling hearing on October 12, 2005. At the hearing, Bryant’s counsel noted that the time was beyond the 30-day extension initially granted by the court to determine restitution. The district court decided to set the matter for an evidentiary hearing but allowed Biyant to file with the court any legal authority to support his position that it was too late for the court to determine restitution.
The district court held an evidentiary hearing on December 7, 2005. Several witnesses testified for the State, and both parties offered exhibits concerning the proper amount of restitution. At the close of the evidence, the district court noted it had not received anything from defense counsel concerning whether the court had authority to determine the amount of restitution at that time. In the absence of any legal authority to the contrary, the district court found it was authorized to determine the amount of restitution. The district court entered an order establishing restitution in the total amount of $11,155.56 payable to several different victims. Biyant timely appeals.
On appeal, Biyant does not contest the reasonableness of the amount of restitution ordered by the district court. Instead, Biyant claims the district court lacked jurisdiction to order restitution because the district court failed to hold a restitution hearing before imposing sentence as required by K.S.A. 22-3424(d). In the alternative, Biyant claims the district court lacked jurisdiction to order restitution because the amount of the restitution was not determined within 30 days of sentencing as initially ordered by tire court.
Whether jurisdiction exists is a question of law over which this court has unlimited review. Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 369, 130 P.3d 560 (2006). Furthermore, the interpretation of a statute is a question of law over which this court has unlimited review. An appellate court is not bound by the district court’s interpretation of a statute. State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006).
K.S.A. 2006 Supp. 21-4603d(e) authorizes a district court to specify an amount of restitution when the defendant is committed to the custody of the Secretary of Corrections or to jail. This statute provides in part:
“If tire court commits the defendant to the custody of the secretary of corrections or to jail, the court may specify in its order the amount of restitution to be paid and die person to whom it shall be paid if restitution is later ordered as a condition of parole, conditional release or postrelease supervision.”
This statute states nothing about when a restitution hearing should be conducted, or for that matter, whether a hearing is required in the first place. K.S.A. 2006 Supp. 21-4610(d)(l) provides that the district court can order a defendant to pay restitution as a condition of probation “in an amount and manner determined by the court . . . .” However, Bryant did not receive probation, so 21-4610(d)(l) is inapplicable to his case.
We will consider Bryant’s claims in reverse order because his alternative claim is subject to controlling precedent, while his claim concerning K.S.A. 22-3424(d) raises an issue of first impression. Bryant claims the district court lacked jurisdiction to order restitution because the amount of the restitution was not determined within 30 days of sentencing as initially ordered by the court. This argument has been previously addressed by the Kansas Supreme Court in State v. Cooper, 267 Kan. 15, 977 P.2d 960 (1999). In Cooper, the district court sentenced the defendant to 2 years’ probation, and the State gave notice it would request restitution. The State did not provide a specific restitution amount at the time of sentencing but informed the district court that it would furnish the necessary documentation within 30 days. The district court ordered the defendant to pay restitution, “ ‘with that amount to be determined within 30 days.’ ” 267 Kan. at 16. The district court further ordered the State to furnish defense counsel with documentation supporting restitution, and if the parties could not agree, the court would hold a formal hearing to determine the restitution amount.
Three days after sentencing, the State received documentation supporting restitution from the crime victim, but the State failed to furnish defense counsel with the documents. Nearly 6 months later, the State filed a motion requesting the district court to determine the amount of restitution. The defendant objected on the ground the motion was untimely. The district court overruled the defendant’s objection, and after hearing statements from counsel and reviewing the documentation, the district court ordered the defendant to pay $2,500 in restitution.
On appeal, the Kansas Supreme Court held the district court’s restitution award was proper despite the delay in determining the amount. The court reasoned that the judge did not know the exact amount of restitution at the time of sentencing but specifically retained jurisdiction to set the amount later. The defendant had been placed on notice at sentencing that he would be required to pay restitution. Even though the restitution amount was not determined within 30 days as initially ordered by the district court, the Supreme Court concluded it was within the district court’s discretion to grant additional time to settle the restitution issue. 267 Kan. at 18.
Here, there were legitimate reasons explaining the State’s delay in securing a restitution order, namely, the prosecutor’s medical leave and the fact that Bryant’s original attorney had left the public defender’s office shortly after sentencing. Bryant had been placed on notice at sentencing that he would be required to pay restitution. Although the precise amount of restitution was not determined until 6 months after sentencing, Bryant suffered no prejudice from the delayed determination. Following the precedent established in Cooper, we conclude the district court did not abuse its discretion in allowing the State more than 30 days from sentencing to determine the amount of Bryant’s restitution.
However, Bryant makes an additional argument that was not raised in Cooper. According to Bryant, K.S.A. 22-3424(d) requires the district court to hold a hearing to establish restitution before imposing sentence. K.S.A. 22-3424(d) states in part: “If the verdict or finding is guilty, upon request of the victim or the victim’s family and before imposing sentence, the court shall hold a hearing to establish restitution. The defendant may waive the right to the hearing and accept the amount of restitution as ordered by the court.” (Emphasis added.) Bryant claims the district court lacked jurisdiction to order restitution because it failed to comply with K.S.A. 22-3424(d).
K.S.A. 22-3424 generally sets forth the procedure for a district court to follow at sentencing. Here, there was never a request by either the victim or the victim’s family for a hearing to establish restitution. However, the prosecutor requested a 30-day extension of time to determine the proper amount of restitution, and presumably this request was made on the victim’s behalf. Bryant did not object at sentencing to the 30-day extension of time to determine restitution. K.S.A. 22-3424(d) allows the defendant to waive the right to a hearing and accept the amount of restitution as ordered by the court. However, Bryant is not contesting the amount of restitution ordered by the district court; rather, he is contesting the district court’s jurisdiction to order any restitution after the sentencing. Furthermore, an objection based on lack of subject matter jurisdiction 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. v. Capital Homes, 279 Kan. 178, 185, 106 P.3d 483 (2005). Thus, we do not believe that Bryant has waived his jurisdiction argument based upon his failure to object to the procedure in district court.
Neither party has cited any published decisions addressing whether K.S.A. 22-3424(d) requires the district court to hold a restitution hearing before imposing sentence. However, pursuant to Supreme Court Rule 7.04(f)(2)(ii) (2006 Kan. Ct. R. Annot. 50), the State has furnished this court with a copy of State v. Kopetzky, Court of Appeals Case No. 86,097, unpublished opinion filed December 7, 2001. In Kopetzky, the defendant was sentenced on October 2, 2000, at which time the State reminded the district court there was an outstanding claim for restitution. The district court indicated that if the parties had a problem fixing the amount of restitution, they should inform the court within 30 days. On October 5, 2000, the State filed a motion to fix restitution, and on October 20, 2000, the district court held a hearing and ordered the defendant to pay restitution. A journal entry establishing restitution was filed on November 1, 2000.
On appeal, the defendant argued that K.S.A. 22-3424(d) requires the district court to hold a restitution hearing before imposing sentence. Thus, the defendant claimed the district court lacked jurisdiction to enter a restitution order after the defendant had been sentenced. However, relying heavily on Cooper, this court rejected the defendant’s argument and expressly concluded that K.S.A. 22-3424(d) is not jurisdictional. Slip op. at 4-5.
We believe the appropriate resolution of this issue depends upon whether the procedure set forth in K.S.A. 22-3424(d) is considered mandatory or directory. In State v. Deavers, 252 Kan. 149, Syl. ¶ 5, 843 P.2d 695 (1992), cert. denied 508 U.S. 978 (1993), the court stated:
“In determining whether a legislative provision is mandatory or directory, it is a general rule that where strict compliance with the provision is essential to the preservation of the rights of parties affected and to the validity of the proceeding, the provision is mandatory, but where the provision fixes a mode of proceeding and a time within which an official act is to be done, and is intended to secure order, system, and dispatch of the public business, the provision is directory. Factors which would indicate that the provisions of a statute or ordinance are mandatory are: (1) the presence of negative words requiring that an act shall be done in no other manner or at no other time than that designated, or (2) a provision for a penalty or other consequence of noncompliance.”
If the procedure set forth in K.S.A. 22-3424(d) is considered mandatory, then strict compliance with the statute is necessary and the provision requiring the district court to hold a restitution hearing before imposing sentence is jurisdictional. However, if the statutory provision is considered directory rather than mandatory, then Bryant must show that he was prejudiced by the delay in determining the amount of restitution in order for this court to vacate the restitution award.
We hold the procedure set forth in K.S.A. 22-3424(d) is directory rather than mandatory. The provision that the district court shall hold a restitution hearing before imposing sentence is not essential to the preservation of the rights of the parties. Instead, the provision fixes a mode of proceeding and a time within which an official act may be accomplished, and accordingly the provision is directory. As long as the defendant is notified at sentencing that restitution is being ordered by the district court in an amount to be determined at a later time, then the purpose of the statute has been satisfied. The statute does not contain negative language prohibiting the district court from determining the amount of restitution in another manner or at another time. Furthermore, there is no provision in the statute for a penalty or other consequence of noncompliance.
Bryant is unable to show how he was prejudiced by the district court holding the restitution hearing after Bryant’s sentence was imposed. Bryant had been placed on notice at sentencing that he would be required to pay restitution. Bryant was free to present whatever evidence he considered relevant to the issue of restitution and, in fact, Bryant offered exhibits to the district court at the evidentiary hearing. Bryant does not contest the reasonableness of the amount of restitution ultimately ordered by the district court. Accordingly, we reject Bryant’s claim that the restitution award must be vacated because the district court failed to comply with K.S.A. 22-3424(d).
In summary, the procedure set forth in K.S.A. 22-3424(d) is directory rather than mandatory. The district court in Bryant’s case did not lack jurisdiction to order restitution because it failed to hold a restitution hearing before imposing sentence. Furthermore, the district court retained jurisdiction when it initially ordered restitution to be established within 30 days of sentencing, and the district court acted within its discretion in subsequently allowing the State more than 30 days to determine the amount of Bryant’s restitution.
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|
Green, J.:
Ryan Shaw appeals his conviction and sentence for felony driving under the influence of alcohol under K.S.A. 2006 Supp. 8-1567 as a third-time offender. First, Shaw argues that the trial court should have granted his motion to dismiss because the State failed to prove at the preliminary hearing that he had two prior convictions for driving under the influence of alcohol (DUI), a necessary element of felony DUI as a third-time offender. Because Shaw failed to include a record of the preliminary hearing, we cannot adequately review Shaw’s argument. Moreover, even if the only evidence presented at the preliminary hearing of Shaw’s two prior DUI convictions was a certified driving record that is contained as an exhibit in the record on appeal, this evidence was sufficient for purposes of preliminary hearing to establish probable cause that Shaw had committed a felony.
Next, Shaw contends that the trial court should have suppressed the results of his second breath test on the Intoxilyzer 5000 due to the officer’s failure to comply with K.S.A. 8-1001(f) and (h) in giv ing the implied consent advisories. Nevertheless, we determine that results of the second test on the Intoxilyzer 5000 were properly admitted by the trial court because the officer adequately complied with K.S.A. 8-1001(f) and (h) in giving Shaw the implied consent advisories before Shaw submitted to the second test. Finally, Shaw argues that the results of the second breath test on the Intoxilyzer 5000 should have been suppressed as fruit of the poisonous tree of both the prehminary breath test and the inadmissible first test on the Intoxilyzer 5000. We disagree. The results from the second breath test on the Intoxilyzer 5000 were not fruit of the poisonous tree of either the preliminary breath test or the first test on the Intoxilyzer 5000. Accordingly, we affirm.
One early morning in June 2005, Trooper Douglas Reed stopped Shaw after he noticed that the right front headlight of Shaw’s truck was not working. As Reed was attempting to stop Shaw, he saw Shaw drive over a curb and onto a sidewalk and nearly hit a sign post in a yard. After stopping Shaw, Reed smelled an odor of alcohol coming from inside the truck. In addition, Reed noticed that Shaw’s eyes were watery and bloodshot. Reed asked Shaw to come with him to his patrol car while he wrote Shaw a warning for the headlight violation. While Shaw was in the patrol car, Reed smelled an odor of alcohol coming from Shaw. Reed asked Shaw if he had been drinking. Shaw stated that he had about four beers and that he had been at a social function.
Shaw agreed to undergo field sobriety testing. Reed testified that during the walk-and-tum test, Shaw exhibited four out of the eight clues of intoxication. According to Reed, Shaw failed the walk-and-tum test. During the one-leg stand test, Shaw showed no clues of intoxication. After performing the field sobriety tests, Shaw took a prehminary breath test.
Reed arrested Shaw for driving under the influence of alcohol and took him to the police department for further testing. Shaw submitted to a breath alcohol test on the Intoxilyzer 5000. The machine registered a .12 concentration of alcohol from Shaw’s breath sample. Reed then realized that he had not given Shaw either oral or written implied consent advisories as required by K.S.A. 8-1001(f). Reed asked Shaw if he would submit to a second breath alcohol test on the Intoxilyzer 5000. Shaw said that he would take the test. Reed then gave Shaw both the oral and written implied consent advisories under K.S.A. 8-1001(f). Reed again asked Shaw if he would submit to breath alcohol testing. Shaw agreed to perform the breath alcohol test on the Intoxilyzer 5000. The second test indicated a .109 concentration of alcohol.
Shaw was charged with felony driving under the influence of alcohol in violation of K.S.A. 2006 Supp. 8-1567(f) as a third-time offender. After a preliminaiy hearing, Shaw moved to dismiss the complaint. Shaw maintained that the State had failed to present sufficient evidence to show that he had two prior DUI convictions, a necessary element of a charge of felony DUI as a third-time offender. Alternatively, Shaw moved to suppress the results of both breath tests because of irregularities in the giving of the implied consent advisories. Moreover, Shaw argued that the preliminary breath test was an unconstitutional seizure and that the results of the later breath test on the Intoxilyzer 5000 were inadmissible as “fruit of the poisonous tree.”
The trial court held a hearing and denied Shaw’s motion to dismiss or, in the alternative, motion to suppress. Shaw moved for reconsideration of the trial court’s decision on his motion to suppress, but the trial court denied Shaw’s motion. Shaw waived his right to a jury trial and was tried upon stipulated facts. The trial court found Shaw guilty of felony DUI. The trial court sentenced Shaw to an underlying sentence of 12 months in jail. The trial court ordered Shaw to serve 48 hours in jail after which he would be eligible to serve the next 88 days in a work release program and then would be on probation for the remaining 9 months.
Probable Cause
First, Shaw contends that his motion to dismiss should have been granted due to the State’s failure to prove at the preliminary hearing that he had two prior DUI convictions, a necessary element of a charge of felony DUI as a third-time offender. This court exercises a de novo standard of review when determining whether the evidence introduced at a preliminary hearing was sufficient to establish probable cause to believe that a defendant committed a charged crime. State v. Corbett, 31 Kan. App. 2d 68, 71, 59 P.3d 1054, rev. denied 275 Kan. 966 (2003).
K.S.A. 2006 Supp. 22-2902(3) requires the discharge of a defendant if the evidence presented at the preliminary hearing does not establish probable cause to believe that a felony has been committed:
“If from the evidence it appears that a felony has been committed and there is probable cause to believe that a felony has been committed by the defendant, the magistrate shall order the defendant bound over to the district judge having jurisdiction to try the case; otherwise, the magistrate shall discharge the defendant.”
In State v. Seems, 277 Kan. 303, Syl. ¶ 3, 84 P.3d 606 (2004), our Supreme Court held that a defendant must be discharged when the State fails to present evidence of two prior DUI convictions at a prehminary hearing for felony DUI under K.S.A. 8-1567(f):
“A defendant charged with felony driving while under the influence under K.S.A. 8-1567(f) is entitled to a preliminary hearing. Before a defendant so charged may be bound over for trial, the State must present sufficient evidence to establish that a felony has been committed and that there is probable cause to believe that a felony has been committed by the defendant. Failure of the State to present evidence of two prior driving while under the influence convictions, as required to establish a felony under K.S.A. 8-1567(0, requires discharge of the defendant for there has been no evidence presented that a felony has been committed under K.S.A. 2003 Supp. 22-2902(3).”
Here, Shaw informs this court that the only evidence presented at the preliminary hearing of his two prior DUI convictions was a certification of driver’s records. Although Shaw’s certified driving record is present in the record as an exhibit, the transcript from the preliminary hearing is not contained in the record on appeal. Moreover, at oral argument, this court was told by Shaw’s counsel that no record was made of the preliminary hearing. Nevertheless, without some record of the preliminary hearing, this court cannot adequately review Shaw’s argument. For instance, this court cannot determine whether the certified driving record was the only evidence presented of Shaw’s prior DUI convictions. Moreover, this court cannot review whether Shaw stipulated to his prior DUI convictions as reflected in the certified driving record. See State v. Moore, 35 Kan. App. 2d 274, 276, 129 P.3d 630 (2006) (evidence at preliminary hearing sufficient to establish probable cause to believe defendant committed felony DUI where defense counsel made qualified stipulation to defendant’s prior DUI convictions). The burden is on the appellant to furnish a record which affirmatively shows that prejudicial error occurred in the trial court. Without such a record, an appellate court presumes the action of the trial court was proper. State v. Holmes, 278 Kan. 603, 612, 102 P.3d 406 (2004).
Nevertheless, even if Shaw’s certified driving record was the only evidence presented at the prehminary hearing of Shaw’s prior DUI convictions, Shaw’s argument still fails. The State does not dispute Shaw’s assertion that die certified driving record was the only evidence presented of his prior DUI convictions. The certified driving record shows that Shaw had a prior DUI conviction in November 2002. In addition, Shaw’s certified driving record lists an administrative action from 1998 where a diversion agreement was entered into after a DUI arrest.
Shaw maintains that this administrative action of entering into a diversion agreement is not the same as a prior DUI conviction. Nevertheless, K.S.A. 2006 Supp. 8-1567(m) states:
“For the purpose of determining whether a conviction is a first, second, third, fourth or subsequent conviction in sentencing under this section:
(1) ‘Conviction includes being convicted of a violation of this section or entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging a violation of this section.”
Thus, the legislature has made clear in K.S.A. 2006 Supp. 8-1567(m)(l) that a defendant’s prior action of entering into a diversion agreement in lieu of further criminal prosecution for DUI is considered a prior conviction for purposes of sentencing a subsequent DUI as a first, second, third, fourth, or subsequent conviction. Therefore, we determine that Shaw’s prior action of entering into a diversion agreement after an arrest for DUI constitutes a conviction for purposes of determining whether Shaw was a third-time offender.
Setting forth the standard used in determining whether the evidence presented at the prehminary hearing establishes probable cause, our Supreme Court in State v. Huser, 265 Kan. 228, Syl. ¶ 2, 959 P.2d 908 (1998), stated:
“While the judge at a preliminary hearing must determine that there is some evidence to support a finding that a felony has been committed and the person charged committed it, the evidence need not prove guilt beyond a reasonable doubt, only probably cause. In order to prove probable cause, there must be evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused’s guilt.”
Here, the parties inform this court that the State presented Shaw’s certified driving record at the preliminary hearing. This driving record indicated that Shaw had two prior DUI “convictions.” This case is different from Seems where the State failed to present any evidence at the preliminary hearing of the defendant’s prior DUI convictions. Our Supreme Court in Seems held that the “[fjailure to present some evidence of two prior convictions at the preliminary hearing results in the failure to establish that a felony has been committed and that there was probable cause to believe that the felony has been committed by die defendant.” (Emphasis added.) 277 Kan. at 306. In this case, however, the State did present “some evidence” of Shaw’s prior DUI convictions. Consequently, this evidence was sufficient for purposes of the preliminary hearing to establish probable cause that Shaw had committed a felony.
Implied Consent Advisories
Next, Shaw contends that the trial court should have suppressed the results of his second breath test on the Intoxilyzer 5000 because Reed requested the second test before giving the implied consent advisories. Because the material facts are undisputed, this court has unlimited review over the trial court’s denial of Shaw’s motion to suppress. When the material facts to a trial court’s decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review. State v. Porting, 281 Kan. 320, 324, 130 P.3d 1173 (2006).
In this case, Shaw took the first breath test on the Intoxilyzer 5000 without receiving implied consent advisories under K.S.A. 8-1001(f). Reed then realized that he had not given Shaw the implied consent advisories and asked Shaw if he would submit to a second breath test. Shaw agreed to take another breath test. Reed then gave Shaw the implied consent advisories. After giving Shaw the implied consent advisories, Reed again asked Shaw if he would take the breath test. Shaw agreed to perform the second breath test on the Intoxilyzer 5000. Reed then administered the second Intoxilyzer 5000 breath test.
The relevant portion of K.S.A. 8-1001(f) states that “[b]efore a test or tests are administered under this section, the person shall be given oral and written notice” of various rights specified by statute. Our Supreme Court has held that the notice provisions of K.S.A. 8-1001 are mandatory rather than directory. Barnhart v. Kansas Dept. of Revenue, 243 Kan. 209, 213, 755 P.2d 1337 (1998).
Shaw does not dispute that Reed gave him both oral and written implied consent advisories before administering the second breath test on the Intoxilyzer 5000. Rather, Shaw maintains that Reed did not follow the proper procedure under K.S.A. 8-1001 when he asked Shaw to take the breath test before giving the implied consent advisories. Shaw focuses on K.S.A. 8-1001(h), which states: “After giving the foregoing information, a law enforcement officer shall request the person to submit to testing.” (Emphasis added.) Nevertheless, the undisputed evidence in this case establishes that Reed did comply with K.S.A. 8-1001(h). Reed, after giving the implied consent advisories, did request Shaw to submit to breath testing. Shaw agreed to submit to the second breath test. While it is undisputed that Reed did ask Shaw to submit to the second breath test before giving the implied consent advisories, Reed provides no authority establishing how this earlier request tainted Reed’s later request after the implied consent advisories were given. The undisputed evidence in this case establishes that Reed did comply with K.S.A. 8-1001(h) by requesting Shaw to submit to testing after he gave the implied consent advisories.
Citing State v. Luft, 248 Kan. 911, 811 P.2d 873 (1991), Shaw states in his brief that “[t]he result of a failure to give implied consent advisories prior to a request for and administration of breath alcohol testing is that the results of the test should be suppressed and rendered inadmissible.” Luft, however, never held that the failure to give implied consent advisories before a request for breath alcohol testing required suppression of the test results. Instead, Luft involved a failure to give implied consent advisories altogether. The Luft court held that a failure to inform the accused of the implied consent advisories under K.S.A. 1990 Supp. 8-1001(f) required “suppression of the results of the blood alcohol tests administered by the State.” 248 Kan. 911, Syl. ¶ 2. In the instant case, Reed did give the implied consent advisories to Shaw. Thus, the holding in Luft does not apply to this case. Moreover, as discussed above, Reed did comply with K.S.A. 8-1001(f) and (h) by giving the implied consent advisories and then asking Shaw to submit to the breath test. After Shaw agreed to submit to the breath test, Reed administered the test on the Intoxilyzer 5000. The results of the second test on the Intoxilyzer 5000 were properly admitted by the trial court because Reed gave Shaw the implied consent advisories before Shaw submitted to the second test.
Fruit of the Poisonous Tree
Finally, Shaw contends that the results of the second breath test on the Intoxilyzer 5000 should have been suppressed as fruit of the poisonous tree of both the preliminaiy breath test and the inadmissible first test on the Intoxilyzer 5000. Because the material facts are undisputed, this court has unlimited review over the trial court’s denial of Shaw’s motion to suppress. When the material facts to a trial court’s decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review. Porting, 281 Kan. at 324.
“[T]he exclusionary rale prohibits the admission of the Traits’ of illegally seized evidence, i.e., any information, object, or testimony uncovered or obtained, directly or indirectly, as a result of the illegally seized evidence or any leads obtained therefrom.” State v. Jones, 279 Kan. 71, 76, 106 P.3d 1 (2005) (citing State v. Horn, 278 Kan. 24, 31, 91 P.3d 517 [2004]).
Moreover, quoting Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963), our Supreme Court has stated the following regarding the “fruit of the poisonous tree” doctrine:
“ “We need not hold that all evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is “whether, granting establishment of the primary illegality, tire evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” [Citation omitted.]’ ” State v. Hodges, 252 Kan. 989, 1006, 851 P.2d 352 (1993).
In arguing that the results of the second Intoxilyzer test should have been suppressed as fruit of the poisonous tree, Shaw relies on Jones. In Jones, our Supreme Court held that the taking of deep lung air that occurred in the preliminary breath test administered to the defendant was a search that required the defendant’s consent. Our Supreme Court held that the State failed to meet its burden that the defendant’s consent was voluntarily, knowingly, and intelligently given. Moreover, the implied consent provisions of K.S.A. 8-1001 could not supply the consent for a preliminary breath test. Our Supreme Court held that the results of tire preliminary breath test result were inadmissible. Moreover, without the results from the preliminary breath test in that case, “the State did not meet the predicates from 8-1001 that would permit the subsequent blood test.” 279 Kan. at 82. That is, “the officer had no reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both.” 279 Kan. at 82. The parties in that case had stipulated that without the preliminary breath test results, the officer did not have probable cause to believe that he was driving under the influence in violation of K.S.A. 8-1567. Our Supreme Court stated that “the officer’s ‘reasonable grounds to believe’ were based entirely upon the PBT, which we hold was involuntarily performed by Jones.” 279 Kan. at 82. In holding that the results of the blood test were inadmissible, our Supreme Court stated: “Whether characterized as the result of failure to meet the requirements for testing under K.S.A. 8-1001 or as fruit of the poisonous tree, the subsequent blood test results were also inadmissible.” 279 Kan. at 82.
Here, the State acknowledges that the results of the preliminary breath test were inadmissible under Jones. Nevertheless, the State maintains that the later Intoxilyzer breath test should not be suppressed under Jones.
As the State correctly points out, Jones is factually distinguishable from the instant case. Without the preliminaiy breath test results, the officer had no reasonable grounds to believe that the defendant was operating or attempting to operate a vehicle while under the influence of alcohol. Our Supreme Court in Jones pointed out that “[t]he officer had performed no field sobriety tests and had made no observations suggesting alcohol use such as Jones’ physical characteristics or confession to alcohol consumption.” 279 Kan. at 82. Here, in contrast to Jones, Reed had performed field sobriety tests and had made observations suggesting alcohol use. As Reed was attempting to stop Shaw, Reed saw Shaw drive over the curb and onto the sidewalk and nearly hit a sign post. After Reed stopped Shaw, he smelled an odor of alcohol coming from inside the car. When Shaw was sitting in his patrol car, he continued to smell an odor of alcohol. Reed noticed that Shaw’s eyes were bloodshot and wateiy. Shaw admitted to drinking approximately four beers. Moreover, Reed observed four clues of impairment while Shaw was performing the walk-and-turn test. Reed testified at the suppression hearing that even without the preliminary breath test, he would have placed Shaw under arrest and taken him to the jail for further breath testing.
Our Supreme Court in Jones contrasted the facts of that case with State v. Chacon-Bringuez, 28 Kan. App. 2d 625, 18 P.3d 970, rev. denied 271 Kan. 1038 (2001). In Chacon-Bringuez, the officer, in addition to obtaining preliminary breath test results that indicated the defendant’s breath sample was above the legal limit, had smelled an odor of alcohol on the defendant’s breath, had noticed the defendant’s eyes were bloodshot and wateiy, had seen 9 beers in a 12-pack box in the truck, had seen the defendant lean on his truck to maintain his balance, and had observed several clues of impairment on two field sobriety tests. In addition, the defendant admitted he drank three beers earlier in the day.
The facts in the instant case are similar to those in Chacon-Bringuez. Reed had observed numerous signs that Shaw had been drinking and was intoxicated. Moreover, Shaw admitted to con suming approximately four beers that evening. Even without the preliminary breath test results, the evidence in this case provided probable cause to believe that Shaw was driving under the influence of alcohol and to detain him for breath testing at the law enforcement center. As a result, the Intoxilyzer breath test results were not fruit of the poisonous tree of the preliminary breath test under Jones.
Shaw also argues that the breath test results from the second Intoxilyzer test were fruit of the poisonous tree of the first Intoxilyzer test. The State concedes that the results from the first Intoxilyzer test were inadmissible due to Reed’s failure to give implied consent advisories before administering the test. Nevertheless, the State argues that the admissibility of the first Intoxilyzer test results did not affect the probable cause that existed to support the second test. We agree.
The probable cause that justified administering both Intoxilyzer breath tests came from the evidence that was obtained before Shaw even arrived at the police station. Reed performed the second Intoxilyzer test only because he realized that he had not given the implied consent advisories before administering the first Intoxilyzer test. The results of the second Intoxilyzer test were not obtained “as a result” of the first Intoxilyzer test “or any leads obtained therefrom.” See Jones, 279 Kan. at 76. Therefore, the results from the second Intoxilyzer test were not the fruit of the poisonous tree. As a result, Shaw’s argument fails.
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Caplinger, J.:
Respondent Rossville Valley Manor/Corporate Resource Management, Inc. (Manor) and Legion Insurance Company/Kansas Guarantee Insurance Association (Legion) appeal the Workers Compensation Board’s (Board) order charging Legion with payment of claimant Waunita Smith’s workers compensation award. Legion argues Liberty Mutual Insurance Company (Liberty) is hable for payment of the award under the “last injurious exposure rule”.
Applying this rule, we find substantial competent evidence supports the Board’s conclusion that the claimant’s final work injury caused only a temporary aggravation of the claimant’s condition, and did not affect her permanent work disability. We thus affirm the Board’s decision that Legion, the insurance carrier at the time of the claimant’s earlier and primary work-related injury, is responsible for payment of the claimant’s award.
Factual and procedural background
While employed by Manor, the claimant was injured in work-related accidents on April 20, 2001, June 14, 2001, and January 3, 2002. After the April 2001 injury, the claimant missed work for 5-6 weeks and returned to work with light duty restrictions. When the claimant again injured her back in June 2001, her back pain temporarily increased but eventually returned to the level of pain experienced after the April injury.
On July 19, 2001, the claimant filed an application for workers compensation for the April 2001 and June 2001 injuries. In October, following an aggravation of. her condition during physical therapy, the claimant visited Dr. Amundson, who ultimately recommended surgery. The claimant immediately scheduled surgery, but the surgery was postponed by Dr. Amundson’s office. Thereafter, a nurse case manager for Legion cancelled the surgery.
Despite her claim for workers compensation, the claimant continued to work at Manor with light duty restrictions. On January 1,2002, Manor changed insurance carriers from Legion to Liberty. After tire January 3, 2002, accident, the claimant was placed on indefinite medical leave. The claimant filed another application for workers compensation on January 5, 2002.
The workers compensation claims were consolidated, and the administrative law judge (ALJ) held a preliminary hearing on February 20, 2002. The ALJ refused to order temporary total disability compensation until further treatment was attempted, but author ized the claimant to visit Dr. Amundson and ordered Legion to pay for any recommended treatment. Legion attempted to appeal tire preliminary hearing order, arguing that Liberty was the insurance carrier at the time of the January 3, 2002, injury, but the Board dismissed the appeal.
The claimant visited Dr. Amundson again on April 3, 2002. Dr. Amundson continued the claimant’s medical leave from Manor. Ultimately, Dr. Amundson conducted two surgeries, which resulted in only limited success. After the surgeries, Dr. Amundson believed the claimant had reached the maximum level of medical improvement and authorized the claimant to return to work with restrictions. The claimant approached Manor, seeking to return to work, but Manor informed the claimant that she no longer qualified for a position.
On September 15, 2005, the ALJ conducted a full evidentiaxy hearing, after which the ALJ entered an award in favor of the claimant for 31.14 weeks of temporary total compensation at $366.93 per week and 245.3 weeks of permanent partial general bodily disability at $366.93 per week. The award was capped at $100,000. The amount which was due at the time of the award was $43,349.11, minus any amount paid by the insurance carriers. The ALJ ordered any remaining sum to be paid in a lump sum award. The remaining $56,650.89 owed to the claimant would be paid over the following 154.39 weeks at a rate of $366.93 per week. The award was to be paid by Manor through its insurance carrier, Legion.
Manor and Legion appealed the ALJ’s order to the Board, which essentially affirmed the ALJ’s award but ordered $93,882.71 to be paid in a lump sum and the remaining $6,117.29 to be paid at a rate of $366.93 per week.
In this appeal, none of the parties challenge the compensation awarded to the claimant. The only question presented is which insurer should pay the award. Because Liberty was the insurer of Manor after January 1, 2002, Legion contends the last injurious exposure rule imposes responsibility for the award on Liberty.
Standard of review
Appellate review of an agency decision regarding workers compensation is limited to questions of law. Suris v. Saginaw Quarries, Inc., 27 Kan. App. 2d 90, 92, 998 P.2d 514 (2000). To the extent Legion asks this court to establish the scope of the last injurious exposure rule, the issue on appeal involves a question of law over which this court possesses unlimited review. See Johnson v. Brooks Plumbing, 281 Kan. 1212, 1213, 135 P.3d 1203 (2006). To the extent Legion challenges the applicability of the rule to the circumstances of this case, the issue involves a question of fact. Appellate review of questions of fact in a workers compensation case is limited to whether the Board’s findings are supported by substantial competent evidence. Mahan v. Clarkson Constr. Co., 36 Kan. App. 2d 317, 318, 138 P.3d 790, rev. denied 282 Kan. ___ (2006).
Last injurious exposure rule
The last injurious exposure rule was first applied by this court in Helms v. Tollie Freightways, Inc., 20 Kan. App. 2d 548, 557, 889 P.2d 1151 (1995). There, the claimant suffered a wrist injury at work. Subsequently, the claimant was involved in an accident while on her way home from physical therapy for the wrist injury, resulting in a back injury which also was deemed to be work-related. The claimant’s employer was insured by one insurer at the time of the wrist injuiy and another insurer at the time of the back injury. 20 Kan. App. 2d at 549.
The Helms court initially determined that although the dispute before the court concerned which insurance company was responsible for compensating the claimant, the dispute was properly raised in the workers compensation proceeding under the circumstances of the case. The Helms court rejected the Board’s determination that the back injuiy was a natural consequence of the earlier compensable wrist injury; instead, the court viewed the back injuiy as an independent, compensable injury. Because the employer had changed insurance carriers between the injuries to the claimant, this court was required to allocate responsibility between the insurance carriers, ultimately adopting the last injurious exposure rule. 20 Kan. App. 2d at 556-57.
“ ‘The “last injurious exposure” rule in successive-injury cases places full liability upon the carrier covering the risk at the time of the most recent injury that bears a causal relation to the disability.’ [Citation omitted.] “When an employee sustains a subsequent industrial injury which is found to be a “new” injuiy, the insurer at risk at the time of the second injury is hable for all of claimant’s benefits.’ ” 20 Kan. App. 2d at 557 (quoting 4 Larson’s Workmen’s Compensation Law §§ 95.12 and 95.21, pp. 17-177-21,17-126).
Because the back injury ultimately was the cause of Helm’s work disability, this court applied the last injurious exposure rule to allocate responsibility for the claimant’s disability to the insurance carrier at the time of the auto accident. 20 Kan. App. 2d at 558.
Despite the seemingly broad language of the rule adopted in Helms, the scope of the last injurious exposure rule was further defined in Surls, 21 Kan. App. 2d at 95-96. In Surls, the claimant injured his neck, back, shoulder, arm, and leg while working for one company and, following treatment, returned to work for the company with work restrictions. After working for about 2 months, the claimant was transferred to another company with a different insurance carrier. While working for this second company, the claimant again injured his neck, back, shoulder, arm, and leg. Based upon the testimony of the claimant’s treating physician, the Board awarded the claimant an 8.75% functional impairment rating and an 83.5% permanent partial general disability rating against the first employer. The Board awarded an additional 3% functional impairment rating against the second employer.
On appeal, the insurance carrier for the first company argued the Board misapplied the last injurious exposure rule. This court affirmed the Board, distinguishing “disability” from “functional impairment” for purposes of applying the last injurious exposure rule. Noting that substantial competent evidence established the second injuiy had not affected the claimant’s work disability, only the claimant’s functional impairment rating, this court reasoned the first company and its insurance carrier were in exactly the same position they would have been in if the second company had not accepted the transfer of the claimant with his work restrictions. 27 Kan. App. 2d at 96.
Consequently, under the last injurious exposure rule, a successive injury is relevant only to the extent it affects an employee’s work disability rating. In other words, if a primary injuiy establishes an employee’s work disability and a subsequent injury does not increase the work disability, the ultimate disability is not causally related to the latter injury, and the insurance carrier at the time of the primary injury is responsible for compensation.
Whether successive injuries are merely the direct natural consequences of a primary injury or whether such injuries constitute independent and distinct injuries contributing to a work disability is a question of fact. See Wietharn v. Safeway Stores, Inc., 16 Kan. App. 2d 188, 195-96, 820 P.2d 719, rev. denied 250 Kan. 808 (1991). In this case, the ALJ and the Board both found, for purposes of determining the claimant’s work disability, the April 2001 and June 2001 injuries established the claimant’s impairment. The successive injury in January 2002 did not affect the claimant’s impairment. In challenging these findings, Legion bears the burden of estabhshing the invalidity of the Board’s action. See Foos v. Terminix, 277 Kan. 687, 693, 89 P.3d 546 (2004).
Having reviewed the record in its entirety, the Board determined the claimant’s January 3, 2002, injury caused only a temporary aggravation of the claimant’s condition and did not affect her permanent work disability for purposes of the last injurious exposure rule. When reviewing a factual finding in a workers compensation case, this court is limited to determining whether the findings are supported by substantial competent evidence. Substantial competent evidence in the workers compensation context is evidence possessing substance and relevant consequence and proving a basis from which the legal issues may reasonably be resolved. We view any disputed evidence in a light most favorable to the prevailing parly, including reasonable inferences drawn therefrom, and we do not weigh the evidence or assess the credibility of witnesses. Mahan, 36 Kan. App. 2d at 319.
The record supports the Board’s factual findings. The parties do not dispute that the claimant suffered severe low back strain and suspected disc injury following the April 20, 2001, injury. Physical therapy for the injury increased, rather than decreased, the pain. A subsequent magnetic resonance imaging exam (MRI) indicated three bulging discs but no interference with the nerves. The treating physician ultimately released the claimant to return to work with significant restrictions.
After the June 14, 2001, injury, the pain symptoms initially increased significantly but eventually subsided to the level of pain experienced after the April injury but before die June injury. Another MRI revealed some nerve damage caused by a right-sided disc protrusion. The treating physician allowed the claimant to return to work with no change in the work restrictions.
While undergoing physical therapy, the claimant suffered an exacerbation of her back pain, and, on October 10, 2001, visited Dr. Amundson. An MRI revealed moderate inflamation and constriction of the L4-L5 discs, and Dr. Amundsun recommended surgery. He fúrther restricted the claimant’s work duties to sedentary jobs. Although surgery was scheduled, the nurse case worker for Legion cancelled the surgery.
The claimant visited Dr. Clough, who did not exclude the need for surgery but recommended conservative treatment. Thereafter, the claimant visited Dr. Hendler, who recommended the surgery originally scheduled by Dr. Amundson, after reviewing the results of an electromyogram (EMG). Throughout this period, Manor was insured by Legion.
As of January 1, 2002, Liberty replaced Legion as workers compensation insurance carrier for Manor. On January 3, 2002, the claimant suffered her third compensable injury. By court order, the claimant was allowed to seek treatment from Dr. Amundson, who reported:
“[Waunita Smith] has basically been lost to our practice since September. We had recommended a decompression for her stenosis at L4-5, clinically manifested as L5 nerve root symptoms, and a herniated disc at L5-S1 eccentric to the right with a swollen right nerve root. After we requested authorization for scheduling she has seen no less than 6 physicians and shuffled through multiple injections, physical therapy, rehab programs, all with no relief. She has now been returned by court order to our office to pursue appropriate treatment. Since last being seen the only thing that has changed is her back pain component seems to be more significant than previous. She is also exhibiting more chronic pain behaviors, most likely due to the fact that her appropriate surgical treatment has been delayed by 6-8 months.”
Although Dr. Amundson was not aware of the January 3, 2002, injury, he viewed MRI reports prepared both before and after the January 2002 accident and determined that the accident did not significantly aggravate the claimant’s condition. He explained the exacerbation of pain immediately following the January 2002 injury in the following manner:
“I think the best way I can explain it, not knowing and only being told the circumstances and not knowing how long the aggravation lasted, is that it could have aggravated her pain syndrome, but anatomically it doesn’t appear that it changed the pathology in her spine that we can see.”
From this evidence, the Board’s conclusion that the January 3, 2002, injury did not contribute to the claimant’s disability is reasonable. As long as Manor provided accommodated employment for the claimant, Kansas law imposed a presumption of no work disability. Surls, 27 Kan. App. 2d at 92-93. But, Manor refused to accommodate the claimant following her back surgeries and, thereby, lost the presumption. 27 Kan. App. 2d at 96.
When Dr. Amundson returned the claimant to work pending the surgery scheduled in October, he imposed “sedentary level” work restrictions. Legion has failed to establish that the work restrictions imposed after the January 3, 2002, accident were more significant than the sedentary work restrictions imposed by Dr. Amundson in October 2001. Consequently, Legion has failed to establish that the claimant’s January 2002 injury aggravated her work disability in any respect.
Applying the last injurious exposure rule under the circumstances of this case, we find substantial competent evidence supports the Board’s conclusion that the claimant’s January 3, 2002, injury caused only a temporary aggravation of the claimant’s condition and did not affect her permanent work disability. We thus affirm the Board’s decision that Legion, the insurance carrier at the time of the claimant’s primary work-related injury, is responsible for payment of the claimant’s award.
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Greene, J.:
Salvador Anguiano appeals the district court’s denial of his motion to suppress, arguing that the incriminating evidence was seized during an illegal detention. Although he ultimately consented to a search of his person, Anguiano argues that his consent was not voluntary and did not purge the taint of his illegal detention. Finally, Anguiano argues that he should have been advised of his rights under Miranda before he was interrogated. See Miranda v. Arizona, 385 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, reh. denied, 385 U.S. 890 (1966). We agree with Anguiano on the issues surrounding his search; his motion to suppress should have been granted and we thus reverse his conviction. Anguiano’s Miranda argument is accordingly rendered moot.
Factual and Procedural Overview
On St. Patrick’s Day, 2005, a sheriff s deputy was on patrol when he observed a man walking whom he believed “semifit” the description of a wanted man. The description included only that the man was Hispanic and wearing a coat and “dark-type green colored pants.” The man observed by the deputy, later identified as Anguiano, had on dark-colored, grayish-green pants and a coat. When the deputy approached Anguiano, he “looked away,” causing the deputy to believe Anguiano was attempting to avoid being identified.
The deputy pulled his patrol car up to Anguiano and asked for his name and origin of travel; Anguiano stated his name and told the deputy he was coming from the National Beef plant. This statement, however, “didn’t make sense” to the officer because Anguiano would have been walking in the opposite direction if he had been coming from the plant. The deputy then got out of his car, stopped the man, and engaged in further conversation, including another request for identification to run through dispatch for aliases or outstanding warrants. The deputy also asked Anguiano if he had been to apartments in the area, which were known to be a source for drugs, and whether he had bought drugs. When Anguiano answered in the negative, the deputy asked if he could search him. Anguiano consented, and a silver container with a white powdery substance, later determined to be cocaine, was found in Anguiano’s right-hand coat pocket. The deputy arrested Anguiano within approximately 6 minutes of his call to dispatch.
On March 18, 2005, the State charged Anguiano with possession of cocaine, in contravention of K.S.A. 65-4160. Anguiano filed a motion to suppress, and a motions hearing was held on June 20, 2005. The court concluded that the deputy had reasonable suspicion to stop Anguiano, that there was reason to further investigate, and that Anguiano’s consent to the search was voluntary. The motion to suppress was denied.
At a subsequent jury trial, Anguiano was found guiliy of possession of cocaine. He was sentenced to an underlying prison sentence of 11 months, but he was given probation. He timely appeals.
Standard of Review
We give deference to the factual findings of the district court on review of a ruling on a motion to suppress and uphold those findings if they are supported by substantial competent evidence. State v. Bone, 27 Kan. App. 2d 582, 583, 6 P.3d 914 (2000). The voluntariness of a consent to search must be determined from the totality of the circumstances and is a question of fact. State v. Rice, 264 Kan. 232, 242, 955 P.2d 1258 (1998). The ultimate determination whether evidence should be suppressed is a legal question requiring independent appellate consideration. State v. Grace, 28 Kan. App. 2d 452, 456, 17 P.3d 951, rev. denied 271 Kan. 1039 (2001). On a motion to suppress, the State bears the burden of proving the lawfulness of a search and seizure. State v. Shelton, 278 Kan. 287, 292, 93 P.3d 1200 (2004).
Did the District Court Err in Denying the Motion to Suppress?
Proper appellate analysis of a case such as this requires that we follow these steps:
“(a) Did the interaction between the [officer] and [suspect] result from a voluntary encounter rather than a stop or seizure subject to Fourth Amendment evaluation? (b) If the initial contact did not qualify as a stop, did the continued contact convert an otherwise voluntary encounter into an investigatory detention? (c) If the initial contact qualified as a stop or the continued contact converted a voluntary encounter into an investigatory detention, was it based on a reasonable and articulable suspicion that [suspect] had committed, [was] committing, or [was] about to commit a crime? (d) If the stop or detention was unlawful, is the appellate record sufficient to enable us to analyze whether the consent purged whatever taint arose? and/or (e) If the appellate record is sufficient for us to make a determination, did the consent purge the taint here?” Grace, 28 Kan. App. 2d at 456.
Our appellate courts have recognized that encounters between police and citizens may be categorized into four types: voluntary encounters, investigatory stops, public safety stops, and arrests. State v. Gonzalez, 36 Kan. App. 2d 446, 451, 141 P.3d 501 (2006). Voluntary encounters are not considered seizures within the meaning of the Fourth Amendment to the United States Constitution. State v. Crowder, 20 Kan. App. 2d 117, 119, 887 P.2d 698 (1994). A voluntary encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature. Florida v. Bostick, 501 U.S. 429, 434, 115 L. Ed. 2d 389, 111 S. Ct. 2382 (1991). So long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter remains consensual and no reasonable suspicion is required. State v. Reason, 263 Kan. 405, 410, 951 P.2d 538 (1997). Once a voluntary encounter is converted to an investigatory detention, there must be reasonable suspicion, based upon objective facts, that the individual was or is involved in criminal activity. State v. Epperson, 237 Kan. 707, 712, 703 P.2d 761 (1985). Something more than an unparticularized suspicion or hunch must be articulated. State v. DeMarco, 263 Kan. 727, Syl. ¶ 4, 952 P.2d 1276 (1998).
Under the exclusionary rule, evidence obtained in violation of the Fourth Amendment cannot be used in a criminal proceeding against the victim of the illegal search and seizure. The rule’s primary purpose is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures. United States v. Calandra, 414 U.S. 338, 347, 38 L. Ed. 2d 561, 94 S. Ct. 613 (1974).
Proper Legal Characterization of the Encounter-Reasonable and Ai~ticulable Suspicion?
The district judge’s analysis from the bench was as follows:
“I think the deputy, even though he didn’t have a full or a complete description, he was looking for somebody who was a Hispanic male wearing dark green pants and a coat. Mr. Anguiano matched that description. So the deputy certainly had the authority to malee a brief stop of Mr. Anguiano to inquire further.
“The deputy’s testimony was that he pulled up next to Mr. Anguiano, asked him who he was and what he was doing. Mr. Anguiano said that he was coming from National Beef, which was a different direction than what the deputy watched Mr. Anguiano come from. I think diat the deputy was within his rights to further his investigation at that point because he had contact widi a person with which he had some suspicion about and who gave him a story diat was not complete with what he had witnessed.
“The deputy had die right to ask for identification and to check to see if the name given was an alias of this David Garcia. He could have also have called in and asked for a more accurate description, such as height, weight, tilings of that nature, of Mr. Garcia.
“[A]nd in the interim [die deputy could] ask for consent to search. And the testimony given here today was that Mr. Anguiano acquiesced and consented to a search of his person.
“I find that there is nothing presented that would indicate that die consent was coerced.”
Our problem with the district court’s analysis is that the officer admitted that after his initial questions, he stopped Anguiano and believed that he was not free to leave at that time. Thus, we must analyze whether there was a reasonable articulable suspicion of criminal involvement at the moment Anguiano was seized. See DeMarco, 263 Kan. at 734. The only bases stated by the officer were that (i) Anguiano “semifit" a description of someone wanted on a felony warrant and (ii) Anguiano’s statement that he was “com ing from National Beef’ did not make sense to the officer given the direction of Anguiano’s travel. We conclude that neither of these bases, whether considered separately or together, supported a reasonable suspicion of criminal activity.
As to the first stated basis, we note that the only description provided to the officer was that the person wanted was a Hispanic man and wore a coat and “dark-type green” colored pants. We believe that the 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” rather 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, March 17, 2005. As noted by the district court, “there’s a lot of things that are descriptive besides what somebody’s wearing [such as] age, height, hair color, race, [and] weight.”
As to the second stated basis, we believe that a direction of travel seemingly inconsistent with a stated location of origin — standing alone — likewise defies reasonable suspicion of criminal activity. Not only is travel direction potentially dependent on origin, it is also dependent on destination and any intermediary stops, none of which were inquired about or known to the officer until later in the encounter. Most importantly, however, mere inconsistency between origin and direction of travel fails to provide reasonable suspicion of involvement in criminal activity. See Epperson, 237 Kan. at 712-13 (absent objective facts to form a belief of involvement in criminal activity, even a brief detention is illegal). Moreover, mere presence in a high-crime area standing alone is insufficient to create reasonable suspicion. Illinois v. Wardlow, 528 U.S. 119, 124, 145 L. Ed. 2d 570, 120 S. Ct. 673 (2000). Even if we consider the collective knowledge of both stated bases, we fail to recognize objective particularized facts in support of reasonable suspicion. See Epperson, 237 Kan. at 713-14; State v. Hamic, 35 Kan. App. 2d 202, Syl. ¶ ¶ 2, 3, 4, 129 P.3d 114 (2006).
We simply conclude that the officer had no particularized and objective basis for suspecting Anguiano was involved in criminal activity, and unless his later consent to search purged the taint of his unlawful stop and detention, the motion to suppress should have been granted. See Grace, 28 Kan. App. 2d at 458-59.
Taint Analysis — Did the Consent Purge ant/ Illegality?
If a person consents to a search after an illegal stop or during an illegal detention, the court must evaluate whether the consent purged the taint of the earlier illegality. See Rice, 264 Kan. at 241-42. If the district court did not specifically apply the taint analysis to the consent, the appellate court is empowered to do so upon a sufficient record on appeal. State v. Crowder, 20 Kan. App. 2d 117, 122, 887 P.2d 698 (1994). The factors to be considered in the taint analysis are the proximity in time of the Fourth Amendment violation and the consent, intervening circumstances, and particularly the purpose and flagrancy of the officers’ misconduct. Rice, 264 Kan. at 242. In addition to proving the voluntariness of the consent, the State must also establish a break in the causal connection between the illegality and the evidence thereby obtained. Grace, 28 Kan. App. 2d at 460.
Here, as was the case in Grace, “we can certainly imagine worse abuses of police authority.” 28 Kan. App. 2d at 460. It does not appear from the record that the encounter was remarkable for any officer misconduct. We note, however, that there were no intervening circumstances to separate Anguiano’s consent from his unlawful detention; in fact, the only intervening events were a short conversation wherein the officer asked for Anguiano’s name, the officer’s initiation of a wants and warrants check, and tire officer’s question whether Anguiano had purchased drugs from nearby apartments. We conclude that none of these events adequately separated the consent from the illegal detention. See Rice, 264 Kan. at 241-44; see Grace, 28 Kan. App. 2d at 460-61. Finally, Anguiano’s brief on appeal emphasizes at least two material discrepancies between the officer’s testimony at the suppression hearing and his testimony at trial; as in Grace, “this variability in the officer’s story does not fill us with confidence.” 28 Kan. App. 2d at 460-61.
Considering the totality of the circumstances, we hold that Anguiano’s consent did not purge the taint of the illegal stop and detention. The evidence procured from the subsequent search should have been suppressed as fruit of the poisonous tree under Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963). Anguiano’s motion to suppress should have been granted; thus, we reverse his conviction.
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